The Omnibus Public Land Management Act of 2008: Senate Amendment 5662 as Submitted on September 26, 2008

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Senate Amendment 5662, the Omnibus Public Land Management Act of 2008, was submitted as
an amendment intended to be proposed to H.R. 5151 on September 26, 2008. Two existing
packages have been paired to form S.Amdt. 5662: S. 3213 is a collection of over 90 individual
bills which is on the Senate calendar, was combined with an additional 53 bills that were
approved by a unanimous vote of the Senate Committee on Energy and Natural Resources on
September 11, 2008.
Given the large number of individual bills that make up this omnibus amendment, it has
numerous supporters and detractors. Proponents may praise what they view as protection of
natural resources such as wilderness and national trails, while detractors’ criticisms may see these
same actions as limiting access to natural resources such as oil and gas. Debate over provisions in
the amendment generally focus on decisions to authorize federal funding; land use priorities; and
the appropriateness of divesting federal ownership in federal lands, among others.
This report provides an overview of key policy issues and debates associated with each of the
amendment’s 12 titles. It highlights specific provisions where stakeholders have identified
controversy. Most provisions within S.Amdt. 5662 concern public lands measures, federal land
management agencies, and other federal land management issues. However, several titles focus
on the Bureau of Reclamation’s projects, water settlements, and other natural resources issues.
This report is not intended to be a complete summary of each issue or provision represented by
the amendment. The 12 titles of S.Amdt. 5662 are:
Title I. Additions to the National Wilderness Preservation System
Title II. Bureau of Land Management Authorizations
Title III. Forest Service Authorizations
Title IV. Forest Landscape Restoration
Title V. Rivers and Trails
Title VI. Department of the Interior Authorization
Title VII. National Park Service Authorizations
Title VIII. National Heritage Areas
Title IX. Bureau of Reclamation Authorizations
Title X. Water Settlements
Title XI. United States Geological Survey Authorizations
Title XII. Miscellaneous

Background and Introduction..........................................................................................................1
Senate Amendment 5662, Titles I-XII.............................................................................................3
Title I. Additions to the National Wilderness Preservation System..........................................3
Title II. Bureau of Land Management Authorizations..............................................................4
Title III. Forest Service Authorizations.....................................................................................6
Title IV. Forest Landscape Restoration.....................................................................................6
Title V. Rivers and Trails...........................................................................................................7
Title VI. Department of the Interior Authorizations..................................................................8
Title VII. National Park Service Authorizations.......................................................................9
Title VIII. National Heritage Areas.........................................................................................10
Title IX. Bureau of Reclamation Authorizations......................................................................11
Title X. Water Settlements......................................................................................................14
Title XI. United States Geological Survey Authorizations......................................................16
Title XII. Miscellaneous..........................................................................................................16
Author Contact Information..........................................................................................................17
Authors’ Areas of Expertise...........................................................................................................18

Senate Amendment 5662, the Omnibus Public Land Management Act of 2008, was submitted as ²
an amendment intended to be proposed to H.R. 5151 on September 26, 2008; it includes nearly
150 public lands and natural resources bills. The amendment itself is a combination of two other
packages of bills. The primary contributor to the amendment, providing the basis of roughly two-
thirds of the language, is S. 3213 which itself is a collection of over 90 individual bills that had ³
been placed on the Senate calendar. The balance of legislative language in S.Amdt. 5662 is
derived from the 53 bills approved by a unanimous voice vote of the Senate Committee on ⁴
Energy and Natural Resources, on September 11, 2008.
The intent of this report is to provide an overview of policy issues and controversies commonly
associated with the subject of each title, as well as to highlight specific provisions within each
title where stakeholders have identified controversy. This document is not, however, a complete
summary of each issue or provision represented by the amendment. The majority of the
provisions under the 12 titles of S.Amdt. 5662 are public lands measures related to wilderness
areas, the land management agencies such as the Bureau of Land Management, the National Park
Service, the Forest Service, and other federal land management issues. However there are also
sections focused on the Bureau of Reclamation’s projects, water settlements, and other natural
resources issues.
Supporters and critics of provisions within S.Amdt. 5662 appear to disagree broadly in their ⁵
positions regarding the role of the federal government in land management, and decisions about
land management priorities such as whether to leave federal lands open to energy development
and other commercial activities versus making land use designations that restrict or prohibit some ⁶
activities. Proponents may praise what they view as protection of natural resources such as
wilderness and national trails, funding authorizations for programs which they support, capital
outlays for aging infrastructure, and water settlements, as examples.
Some have expressed concerns focused on land use priorities such as leaving federal lands open
to energy development versus other management decisions which may limit the types of activities
that are authorized on federal land. Some opponents to provisions within S.Amdt. 5662 have cited ⁷
limitations on energy exploration and development specifically. It may well be the case that
limitations on commercial activities such as energy development are an inherent characteristic of

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specific actions, such as wilderness designations, which by their very nature limit or prevent some
commercial activities. Broad ideological controversies associated with activities under any of the
amendment’s 12 titles are discussed within the relevant sections below. As an overview of the
amendment, this report is not intended to be an analysis of the specific effects of S.Amdt. 5662 on
energy exploration or production, but rather to note this issue as a concern which has been raised
regarding the amendment. As S.Amdt. 5662 has no specific “Energy” title, any direct or indirect
effect on energy activities arise through the numerous provisions under titles such as those under
Title I, Additions to the National Wilderness Preservation System.
In response to concerns by property owners near the affected federal lands, this amendment
includes many assurances that private property will not be taken by condemnation, that access
rights will continue, and that regulatory schemes will not extend beyond the boundaries of the
protected land. Nonetheless, not all private landowner interests may be mollified by these
assurances.
Additionally some may have concerns regarding the authorization of federal funding which may
fall into two general categories: that a specific authorization of funding is inappropriate for the
federal government; or that a low perceived benefit to cost ratio for a given program would
provide little value for federal dollars expended.
In general, the funding figures associated with specific provisions that make up S.Amdt. 5662 do
not represent physical outlays of Treasury funds, but rather are authorizations for appropriation.
The formal appropriations process consists of two sequential steps: (1) enactment of an
authorization measure that may create or continue an agency or program as well as authorize the
subsequent enactment of appropriations; and (2) enactment of appropriations to provide funds for ⁸
the authorized agency or program. While funding figures presented in the amendment indicate
what some may recommend for a specific provision or program, the actual funding appropriated
may be more, less, or none at all.
When appropriations are made outside of the aforementioned two step process, that is, when
appropriations are made in an act other than an appropriations act, it is known as direct spending.
The Congressional Budget Office (CBO) analyses pending legislation and may make a number of
determinations regarding the bill, including whether it contains direct spending provisions.
Although CRS does not make determinations on direct spending, we have included a description
of the criteria for direct spending to provide context for those interested in the funding
authorizations within S.Amdt. 5662.
Direct spending, also known as mandatory spending, has been defined as entitlement authority or ⁹¹⁰
budget authority provided by law other than appropriation acts. Direct spending may be

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“temporary or permanent... [and] definite or indefinite” with respect to the authority’s duration ¹¹
and the amount of funding authorized, but the defining factor is that the budget authority is ¹²
made available in an act other than an appropriations act. Direct spending allows Congress to
control spending “indirectly rather than directly through appropriations acts” by “defining ¹³
eligibility and setting the benefit or payment rules” for the spending.
Another issue is the appropriateness of divesting federal ownership in federal lands. Many of the
provisions in this amendment surrender federal ownership in lands, giving property to states,
local interests, or private entities. In general, federal policy has been against divestiture. The
enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) formally ended the
previous disposal policy, expressly declaring that the national policy generally was to retain the
remaining lands in federal ownership. Section 102(a) of FLPMA states: “The Congress declares
that it is the policy of the United States that—(1) the public lands be retained in Federal
ownership, unless as a result of the land use planning procedure provided for in this act, it is
determined that disposal of a particular parcel will serve the national interest.”

This section describes each of the Amendment’s 12 titles. It includes a description of broad policy
issues associated with each title, and highlights specific provisions within each title where
stakeholders have identified controversy.

The 1964 Wilderness Act¹⁵ established the National Wilderness Preservation System and directed
that only Congress can designate federal lands as part of the national system. Proponents argue
that these relatively pristine areas warrant protection from development. The lands’ undeveloped
nature can result in high-quality water, habitat for rare wildlife species, and recreational
opportunities unavailable on other lands. Opponents respond that the restrictions on most
commercial activities, motorized access, and roads, structures, and facilities in wilderness areas is ¹⁶
unnecessary and can be harmful to local economies. Commercial timber harvesting, mining, and
oil and gas leasing and development are generally prohibited in congressionally designated ¹⁷
wilderness areas. However, the Wilderness Act explicitly authorized continued livestock grazing ¹⁸¹⁹
in wilderness created from national forests, and allowed commercial recreational services. The

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act also allowed continued aircraft and motorboat access to areas,²⁰ and authorized the President ²¹
to allow certain water projects and related facilities. Finally, the act allowed exceptions to the
prohibitions “as necessary to meet minimum requirements for the administration of the area ...
(including measures required in emergencies involving the health and safety of persons within the
area)” and “as may be necessary in the control of fire, insects, and diseases, subject to such ²²
conditions as the Secretary deems desirable.”
Every Congress since the 90^th has added to the System, including the 110^th, which added 106,000
acres of wilderness in Washington in P.L. 110-229. Today, the National Wilderness Preservation
System includes 107.55 million acres in 44 states. Title I of S.Amdt. 5662 includes 14 subtitles
that add to the Wilderness System. In total, the 14 subtitles would designate 1,775,275 acres of
wilderness in 8 states—CA, CO, ID, MI, NM, OR, VA, and WV—in 35 new areas and additions
to 25 existing wilderness areas. (Section 2403, in Title II, would add another 66,280 acres in a
new wilderness area in Colorado.)
Wilderness bills commonly contain additional provisions, designating lands for other purposes
(recreation areas, wild rivers, etc.), directing land exchanges, modifying boundaries, and more.
The 14 subtitles of S.Amdt. 5662 are no exception; but none of these provisions, nor the
wilderness designations themselves, seem to have generated substantial controversy. However,
undoubtedly, there are some interests who oppose enactment of each (or even of all) of the
provisions and designations.

Title II of S.Amdt. 5662 contains diverse provisions related to the Bureau of Land Management
(BLM) in the Department of the Interior. A focus of congressional attention has been on
provisions to establish legislatively, within BLM, the National Landscape Conservation System
(NLCS). Subtitle A states that it is not intended to alter the way the areas within the NLCS are
currently managed. The BLM created the NLCS administratively in 2000 to focus management
and public attention on its specially protected conservation areas. According to BLM, the mission
of the System is to conserve, protect, and restore for present and future generations the nationally
significant landscapes that have been recognized for their outstanding archaeological, geological, ²⁴
cultural, ecological, wilderness, recreation, and scientific values. The System consists today of
about 27 million acres of land, with more than 850 federally recognized units. These units include
national monuments, national conservation areas, wilderness areas, and wilderness study areas, as
well as thousands of miles of national historic and scenic trails and wild and scenic rivers.
There are mixed views on whether the NLCS should be established legislatively. Supporters,
including the BLM, assert that this will provide legislative support and direction to the BLM and
formalize and strengthen the agency’s conservation system within the context of its multiple use
mission. Opponents have expressed concern that it could effectively establish new, standardized

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requirements for disparate areas of the system. Other provisions of S.Amdt. 5662 would establish ²⁵
new national monuments, national conservation areas, or wilderness areas, and some of these
provisions make explicit that the areas are to be managed as part of the NLCS. Additional support
for the NLCS, and for establishing such areas, centers on a desire for additional federally
protected areas. Opposition stems from concern that areas would be removed from multiple uses,
possibly including oil and gas development, motorized recreation, and livestock grazing.
An issue that often arises with federally protected areas involves the water rights related to those
areas. S.Amdt. 5662 includes a provision that addresses the management of federal water rights in
a designated area of Colorado. That water rights provision states that no reserved water rights are
created and provides that the federal government would acquire any necessary water rights for the
purposes of the designated area through Colorado state law, not by federal reservation. However,
Colorado water is overallocated, meaning that some users already holding water rights cannot
fulfill those rights. The proposed legislation provides that if the state’s conservation board
modifies some water rights such that existing rights to the designated area are insufficient to
fulfill the purposes of designation, the Secretary would pursue water rights under state law to
fulfill those purposes. Because the proposed legislation does not reserve federal water rights for
the area and because Colorado’s water is overallocated, it would likely be very difficult for the
Secretary to pursue sufficient rights to fulfill the purposes of the designation.
Other provisions of S.Amdt. 5662 would provide for the disposal of BLM or other federal lands
to cities, private entities, and other recipients. In some cases, the provisions provide for an
exchange of lands between the federal government and non-federal land owner. Currently, BLM
can dispose of its public lands under several authorities. A primary means for BLM to both
dispose of and acquire lands is through exchanges under the Federal Land Policy and ²⁶
Management Act of 1976 (FLPMA). These authorities impose conditions or requirements on the
land transactions. For instance, under FLPMA, BLM can sell certain tracts of public land that
meet specific criteria for not less than their fair market value. Further, the agency can exchange
land if it serves the public interest, and the federal and non-federal lands in the exchange are
located in the same state and are of roughly equal value, among other requirements.
Each Congress tends to consider many legislative proposals providing for specific land disposals
and exchanges, as in S.Amdt. 5622. Such proposals have been supported as authorizing land
transactions to worthy recipients that may not be allowed under existing authorities. In other
cases, they have been supported as directing or expediting particular transactions that are allowed
under law but that are not being accomplished by the BLM in the time frame desired by
Congress. More broadly, land disposals have been favored by those who assert that the federal
government owns and manages too much land, and that federal holdings should be conveyed to
state or private ownership. By contrast, such legislative proposals have been opposed on the
grounds that they are not in the public interest, as land is removed from federal ownership
through conveyance to nonfederal entities. They have further been opposed on the assertion that

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^m^a^na^g^e^d^w^ithout^im^pa^iring^theⁱ^r^s^u^ita^bility^f^o^{r de}^sⁱ^gⁿ^a^tion^a^s^w^ild^e^r^ne^s^s^.^{For a}^dis^c^us^sⁱ^oⁿ^of^the^c^o^ntrov^e^rs^ie^s
^surrouⁿ^dⁱ^ng^w^ilde^r^ne^{ss de}^sigⁿ^a^{tion, se}^e^t^h^e^sum^m^a^r^y^o^f^T^itle^{I in this re}^por^t.
²⁶^Inf^o^rm^a^{tion on BL}^{M a}^u^th^oritie^s^{to d}ⁱ^s^pos^e^of^la^{nd a}ⁿ^{d t}^o^e^x^c^h^aⁿ^g^e^la^{nd is}ⁱⁿ^c^l^u^d^e^dⁱⁿ^CRS^Re^por^t^RL³⁴²⁷^3,
^Fe^de^{ral L}^aⁿ^d^Owne^rshi^p^{: Curre}ⁿ^t^Ac^quisi^tio^{n a}ⁿ^d^Disp^{osal A}^u^t^h^o^r^itie^s^{, b}^y^Ro^{ss W}^.^G^o^{rte an}^d^Caro^{l Hard}^y^Vⁱⁿ^cen^t.
^Iⁿ^f^o^r^m^a^{tion o}ⁿ^B^L^{M la}ⁿ^d^e^x^c^h^aⁿ^g^e^s^,^inc^l^udi^ng^a^s^s^o^cⁱ^a^t^e^d^c^ontr^o^v^e^r^s^ie^s^,^is^inc^l^ude^{d i}ⁿ^C^R^S^R^e^p^o^r^t^R^S²¹⁹⁶^7,^La^nd
^Ex^c^han^ge^s^:^Bur^e^a^u^of^L^aⁿ^d^M^aⁿ^age^m^e^{nt Pr}^oc^e^s^s^and^I^s^s^u^e^s^{, b}^y^Caro^{l Hard}^y^Vⁱⁿ^cen^t.

the federal government does not consistently adhere to requirements in law, such as by obtaining
the fair market value for land it sells.
In one particular instance, regarding the Southern Nevada Limited Transition Area Conveyance,
the proposed amendment appears to allow the city of Henderson, NV to use the property in a
manner inconsistent with the act, and then sell the property if the Secretary of the Interior fails to
act on the right to enforce a reversion. However, there is no provision of time in this section,
making unclear how much time is given for the Secretary to consider the reversion before the city
can sell the property. Taken to the extreme, it could allow the sale before the Secretary was even
aware of the inconsistent use.

The Forest Service, in the Department of Agriculture, administers 192 million acres of federal
land for sustained yields of multiple uses. Boundaries of these national forests were largely
determined by presidential proclamations, but now can only be changed by an act of Congress, ²⁸
and agency authority to dispose of lands by sale or exchange is limited. Many of the authorities
for protecting and managing the lands and regulating the uses are permanent; others are
temporary, often created for a test period. Title III of S.Amdt. 5662 has five subtitles, though none
of them appear to be broadly controversial, disputes may arise when conflicting uses can occur on
the same site, or when sites are reserved for some uses and excluded from others.
The five subtitles in Title III are related only by the fact that they affect Forest Service lands or
management. Subtitle A makes permanent the authority to reach agreements with other
governments, private landowners, or other entities on cooperative efforts to restore or enhance
watersheds for fish and wildlife habitat, water quality management, and public safety from
natural disasters. Subtitle B requires an annual report to Congress on practices and training to
improve the safety of wildland firefighters, because of continuing fatalities (generally 10 to 30
deaths annually over the past two decades).
Subtitle C withdraws (makes unavailable) certain lands in the Wyoming Range of the Bridger-
Teton National Forest (WY) from mining claims or mineral leases, “subject to valid existing
rights.” It also allows for donations of valid existing rights. Subtitle D makes several land
conveyances, generally for public purposes (e.g., a cemetery, a fire and rescue station, a public
shooting range), and directs two land exchanges. Finally, Subtitle E directs a study of possibilities
that could “assist in maintaining the open space characteristics of land that is part of the mountain
backdrop of communities” for a portion of the Front Range of the Rocky Mountains in Colorado.

Wildfires on Forest Service lands seem to have been getting more severe; acres burned annually
in 2005, 2006, and 2007 were more than in any other years since recordkeeping began in 1960.

²⁷^P^r^ep^ared^b^y^Ro^{ss W}^.^G^o^rt^e,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Resou^r^ces^P^o^lⁱ^c^y^.
²⁸^Se^e^C^R^S^R^e^por^{t R}^L³⁴²⁷³^,^Fe^de^{ral La}^nd^Owne^rshi^p^{: Curre}^nt^Ac^quisiti^on^a^{nd Dis}^pos^{al A}^u^th^oritie^s^{, by}^Ros^s^W^.
^G^o^{rte an}^d^Caro^{l Hard}^y^Vⁱⁿ^cen^t^.
²⁹^P^r^ep^ared^b^y^Ro^{ss W}^.^G^o^rt^e,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Resou^r^ces^P^o^lⁱ^c^y^.

Many assert that the threat of severe wildfires and the cost of suppressing wildfires have grown ³⁰
because many forests have unnaturally high fuel loads (e.g., dense undergrowth and dead trees).
Restoring forests to more historically natural conditions (fewer but larger trees, with less
undergrowth) is widely perceived as desirable to reduce wildfire severity, and thus wildfire ³¹
damages and suppression costs. However, despite the enactment of the Healthy Forests ³²
Restoration Act of 2000 and implementation of President Bush’s Healthy Forests Initiative,
many are concerned that restoration treatments are still delayed by procedural hurdles.
Title IV of S.Amdt. 5662 establishes a program for forest landscape restoration. It creates a
collaborative (diverse, multi-party) process for geographically dispersed, long-term (10-year),
large-scale (at least 50,000 acres) strategies to restore forests, reduce wildfire threats, and utilize
the available biomass. The authorization is $40 million annually for 10 years, and requires multi-
party monitoring of and annual reporting on activities.

Subtitle A concerns additions to the National Wild and Scenic Rivers System. The Wild and ³⁴
Scenic Rivers Act established the System and a policy of preserving designated free-flowing
rivers for the benefit and enjoyment of present and future generations. The act requires that
designated river units be classified as wild, scenic, or recreational rivers, based on the condition
of the river, the amount of development in the river or on the shorelines, and the degree of
accessibility by road or trail at the time of designation. Instead of mandatory conservation
measures, the designation is to preserve the character of a river. The act neither prohibits
development nor gives the federal government control over private property. The act specifically:
(1) prohibits federal dams and other water projects that would harm river values; (2) protects
outstanding natural, cultural, or recreational values; (3) ensures water quality is maintained; and,
(4) requires a comprehensive river management plan that addresses resource protection and
development of lands and facilities.
Designation and management of lands within river corridors have been controversial in some
cases, with debates over the effect of designation on private lands within the river corridors, the
impact of activities within a corridor on the flow or character of the designated river segment, and
the extent of local input in developing management plans. Since 1968, 166 rivers with 11,434
miles in 38 states and Puerto Rico, have been designated. Under Subtitle A, three rivers are
designated—Fossil Creek, AZ; Snake River Headwaters, WY; and Taunton River, MA—totaling
461 miles. Under Subtitle B, a study of the Missisquoi and Trout Rivers (70 miles) is proposed
for possible inclusion.
The proposed designation of the Snake River Headwaters in Wyoming proved to be a
controversial addition to the Wild and Scenic Rivers System. Questions were raised regarding the
impact that designation would have on existing water rights, particularly for Jackson Lake.

³⁰^A^nothe^r^r^e^a^s^{on is}^theⁱⁿ^c^r^e^a^s^ing^num^be^r^s^of^hom^e^s^{in a}^{nd ne}^a^r^f^o^r^e^s^t^s^;^s^e^e^C^R^S^R^e^por^{t R}^S²¹⁸⁸^0,^W^ildfire
^Prote^c^tionⁱⁿ^the^W^ild^la^nd-Urb^aⁿ^Inte^rfac^e^,^by^Ros^s^W^.^G^o^rte^.
³¹^Se^e^C^R^S^R^e^por^{t R}^L³⁴⁵¹⁷^,^W^ildfⁱ^r^e^D^a^m^age^s^t^o^H^o^m^e^s^a^nd^Re^s^o^u^r^c^e^s^:^U^nde^r^s^t^andi^ng^C^aus^e^s^an^d^Re^ducⁱⁿ^g
^L^o^sses^{, by}^Ros^s^W^.^G^o^rte^.
³²^P^.^L^.¹⁰^8-¹⁴⁸^;¹⁶^U^.^S^.^C^.^§§⁶⁵⁰¹^e^t^a^l^.
³³^P^r^ep^ared^b^y^S^aⁿ^d^r^{a L}^.^Johⁿ^s^on^,^Iⁿ^f^o^rmatⁱ^oⁿ^Research^S^p^eci^alⁱ^s^t^;^aⁿ^d^Cyⁿ^t^hⁱ^{a Brou}^gh^er,^L^e^gi^sl^atⁱ^v^e^A^t^t^o^rn^e^y^.
³⁴^{16 U}^.^S.C^.^§^§¹²⁷¹^-¹²⁸^7.

S.Amdt. 5662 would address those questions by providing that the designation would not affect
existing rights and would not affect the management and operation of Jackson Lake or Jackson
Lake Dam.
Subtitle C focuses on additions to the National Trails System. On October 2, 1968, the National ³⁵
Trails System Act became law and established the Trails System. The act authorized a national
system of trails to provide additional recreation opportunities and to promote the preservation of
access to outdoor areas and historic resources of the nation. Since the designation of the
Appalachian and Pacific Crest National Scenic Trails as the first two components, the system has
grown to include 26 national trails. Under Subtitle C, six additional trails are designated to the
system. Also, under Subtitle C, proposed legislation directs the National Park Service to update
the feasibility studies of the Oregon, Pony Express, California, and Mormon Pioneer National
Historic Trails to include shared routes, cutoff trails, and other trail segments.
Land acquisition for resource protection has been controversial in some cases. Legislation to give
federal land management agencies the authority to purchase land from willing sellers has been
considered, but not enacted, during the last five Congresses. Subtitle D would amend the National
Trails System Act to provide authority to purchase land from willing sellers for designated trails
that currently lack such authority. This proposal does not commit the federal government to
purchase any land or spend any money, but seeks to allow managers to purchase land to protect
the national trails as opportunities arise and funds are appropriated.

This title covers a disparate collection of issues in six subtitles relating to topics such as
watershed management, livestock predation control, and the employment status of some federal
employees in Alaska. Subtitles B, C, D, and F do not appear to be significantly controversial.
However, Subtitle A may be viewed as too expensive by some, and there has been considerable
controversy associated with Subtitle E.
Subtitle B amends the Alaska National Interest Lands Conservation Act (ANILCA)³⁷ and appears
to clarify that some federal employees hired under this act have competitive status in the same
manner as other federal employees in the competitive service. Subtitle C includes a provision to
encourage preservation of historic water rights at a Colorado national wildlife refuge (NWR).
Legislation that involves water rights on federal lands has the potential to be controversial, as new
uses of water may affect existing rights. S.Amdt. 5662 would provide that water rights in the
Refuge be used as they have been used historically, presumably to avoid these controversial
effects on water users. Subtitle D increases penalties for damage to and illegal collection of
paleontological resources on federal lands and does not appear to be controversial. Subtitle F
concerns a federal matching program to be administered by states and tribes for non-lethal wolf
control and for compensation for livestock loss. It does not appear to be widely controversial
though some may believe that federal funds should not be authorized for such a program.

³⁵^{16 U}^.^S.C^.^§^§¹²⁴¹^-¹²⁴^9.
³⁶^P^r^e^p^a^r^e^d^by^{M. L}^y^nne^{Corn, S}^p^e^c^ia^{list in Na}^tura^{l Re}^so^ur^c^e^s^P^o^lic^y^;^Kristina^A^l^e^x^a^nde^{r, L}^e^gⁱ^sla^tive^A^ttorne^y^{; a}^nd
^C^yⁿ^t^hⁱ^{a Brou}^gh^er,^L^e^gi^sl^atⁱ^v^e^A^t^t^o^rn^ey^.
³⁷^P^.^L^.^96-⁴⁸^7.

Subtitle A would establish a new cooperative watershed grant program in the Department of the
Interior. Some may be opposed to the nearly $180 million authorization for the program for
FY2008-FY2020, as well as its possible duplication of other federal watershed programs and
initiatives. Programs of this type generally involve as many stakeholders as possible and endeavor
to create an agreed upon plan for conserving/improving/restoring the resource, in this case, a
watershed. After the plan is established, the planning group would assess particular projects
proposed for, or affecting, the watershed and make recommendations.
Subtitle A authorizes grants to establish a cooperative planning group and specifies criteria for
additional implementation grants. It may be controversial to those who oppose multi-interest
environmental planning and management, or who want one set of criteria to control the
planning/management process.
Subtitle E concerns the controversial transfer of certain federal lands in Izembek NWR and
Sitkinak Island-Alaska Maritime NWR in return for certain state lands and lands owned or
claimed by an Alaska Native Corporation. The purpose of the transfer is to build a road through
the refuge, from King Cove to Cold Bay, AK, to provide additional medical access for King
Cove’s citizens through the airport at Cold Bay. The chief controversies concerning the exchange
have been (a) the high ecological value of the Izembek lands to be relinquished compared to the
lands to be acquired; and (b) questions about any superiority of road access between the two
communities, vis-a-vis a hovercraft supplied through earlier federal legislation intended to
address the access problem.
Some additional controversies may be generated by the specific language of this exchange. Some
language could be construed that the proposed amendment seeks to restrict the environmental
review under the National Environmental Policy Act (NEPA), by listing some contents of an
environmental impact statement, but leaving out a significant portion of such a document—the
alternatives analysis.

Every Congress considers proposals to establish new park units or to study the appropriateness
and practicality of potential additions to the National Park System. Other legislation includes
initiatives to convey or exchange lands, modify boundaries, and make technical corrections and
other changes to the laws authorizing the 391 diverse units that comprise the National Park
System. Enacting stand-alone parks and recreation bills can be daunting, especially in periods of
fiscal constraint and competing critical national priorities. While local economies may benefit
from new or expanded park units, others object to the loss of taxable land from federal land
purchases. Some are also concerned about adding to the System when fiscal limitations make it
difficult to adequately maintain the existing units. One organization has estimated that the
National Park Service (NPS) has been operating with approximately two-thirds of the funding ³⁹
needed annually—or approximately $600 million less than annual funding estimates. Beyond
the funding concerns, the individual park provisions are mostly routine and have not generated
any substantial or sustained controversy.

³⁸^P^r^ep^ared^b^y^Ro^{ss W}^.^G^o^rt^e,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Resou^r^c^e^s^P^o^lic^y^;^Ga^{il Mc}^Ca^llion,^Spe^cⁱ^a^{list i}ⁿ^S^o^cⁱ^a^l^P^o^lⁱ^c^y^{; a}^nd
^Da^vⁱ^{d L}^.^W^h^ite^m^a^{n, A}ⁿ^a^l^y^s^{t in Na}^tura^{l Re}^sourc^e^s^P^o^lⁱ^c^y^.
³⁹^S^{ee t}^h^{e Nat}ⁱ^oⁿ^a^l^P^a^{rks Co}ⁿ^s^ervatⁱ^oⁿ^A^sso^ci^atⁱ^oⁿ^w^e^b^sⁱ^t^e^at^h^t^t^p^:^/^/^www^.ⁿ^p^ca.^o^r^g/^medⁱ^a_^cen^t^e^r/^rep^o^rt^s/^an^al^y^sⁱ^s^.^h^t^m^l^.

Title VII of S.Amdt. 5662 includes provisions that would establish three new national park units,
enact changes to 17 existing units, and authorize studies of 12 sites for potential addition to the
System. Also included are provisions to reauthorize the American Battlefield Protection Program
for another four fiscal years and the NPS Advisory Board and the NPS Concessions Management
Advisory Board each for one year.
One provision, the Save America’s Treasures Program, § 7303, was criticized in the past for an ⁴⁰
alleged lack of geographic diversity. As a result, legislation enacted in FY2001 required that
project recommendations be subject to formal approval by the House and Senate Committees on
Appropriations prior to the distribution of funds. These projects require a 50% cost share, and no
single project can receive more than one grant from the program. Section 7303 maintains ⁴¹
notification requirements for House and Senate Committees prior to disbursement of grants.
S.Amdt. 5662, would authorize the program at $50 million for each fiscal year (the authorization
term is not clearly specified), with funds to remain available until expended. Additionally, the
Preserve America Program, § 7302, was established to complement Save America’s Treasures
grants. Preserve America grants also require a 50% match from nonfederal funds. These grants
are provided as one-time seed money to fund research and documentation, interpretation and
education, planning, marketing, and training to encourage community preservation of cultural,
historic, and natural heritage through education and heritage tourism. This program does not
appear to have been subject to the criticism noted above regarding Save America’s Treasures.

Currently, there are 40 National Heritage Areas (NHAs) that were established by Congress to
commemorate, conserve, and promote areas that include important natural, scenic, historic,
cultural, and recreational resources. NHAs are partnerships among the NPS, states, and local
communities, where the NPS supports state and local conservation through federal recognition,
seed money, and technical assistance. NHAs are not part of the National Park System, where
lands are federally owned and managed. Rather, lands within heritage areas typically remain in
state, local, or private ownership or a combination thereof. There is no comprehensive statute that
establishes criteria for designating NHAs or provides standards for their funding and
management. Instead, particulars for each area are provided in its enabling legislation. NHAs ⁴³
might receive funding from a wide variety of sources, including through the NPS.
Title VIII of S.Amdt. 5662 seeks to establish ten new NHAs, study two areas for possible heritage
designation, and amend four existing heritage areas in 8 states (AK, AL, CO, MA, MD, MS, and
NH). For each area, the amendment contains provisions to address concerns about potential loss
of, and restrictions on use of, private property as a result of NHA designation. Among the
provisions, the amendment states that it does not abridge the right of any property owner; require
any property owner to permit public access to the property; alter any land use regulation; or
diminish the authority of the state to manage fish and wildlife, including the regulation of fishing
and hunting within the NHA. The amendment requires the Secretary of the Interior, within three

⁴⁰^P^.^L^.¹⁰^6-²⁹¹^.
⁴¹^F^o^{r m}^o^{re i}ⁿ^f^o^rm^atⁱ^oⁿ^on^t^h^e^P^r^eserve^Ameri^ca,^S^a^ve^Ameri^ca’s^T^r^easu^r^es,^an^d^rel^a^t^e^d^p^r^o^g^ram^s^s^e^e^CRS^Rep^o^r^t
^R^L³³⁶¹^7,^Hⁱ^s^t^or^ic^Pr^e^s^e^r^v^a^tion:^Bac^k^g^r^o^uⁿ^d^a^nd^Fu^ndi^ng^,^by^Sus^a^{n B}^o^r^e^n.
⁴²^P^r^ep^ared^b^y^Caro^l^Hard^y^Vⁱⁿ^cent^,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Reso^u^r^ces^P^o^lⁱ^c^y^.
⁴³^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^N^H^A^s^,^s^e^e^C^R^S^R^e^por^{t R}^L³³⁴⁶^2,^H^e^r^ita^ge^Ar^e^a^s^:^Bac^k^g^r^o^u^nd,^Pr^o^pos^a^l^s^,^an^{d C}^u^r^r^e^nt
^Issu^es^{, by}^C^a^r^o^{l H}^a^r^d^y^Vinc^eⁿ^{t a}^{nd D}^a^vⁱ^{d L}^.^W^h^ite^m^a^n.

years of the date on which federal funding terminates, to evaluate each new area and report
thereon to the congressional authorizing committees.
There is a difference of opinion as to the merits of congressional designation and federal support
of NHAs. Heritage supporters believe that the benefits of heritage areas are considerable and thus
Congress should expand its assistance for creating and sustaining them. Supporters view NHAs as
important for protecting lands and traditions; promoting a spirit of cooperation and a stewardship
ethic among the general public; and fostering community revitalization, tourism, and regional
economic development. Some see NHAs as generally more desirable than other types of land
conservation, because the lands typically remain in nonfederal ownership to be administered
locally. They view establishing and managing federal areas, such as units of the National Park
System, as too costly, and observe that small federal investments in heritage areas have been
successful in attracting funding from other sources. Some proponents see NHAs as flexible
enough to encompass a diverse array of initiatives and areas, because the heritage concept lacks
systemic laws or regulations.
Some opponents believe that NHAs present numerous problems and challenges and that Congress
should oppose efforts to designate new areas or extend support for existing ones. Property rights
advocates have taken a lead role in opposing heritage areas. Concerns include that some NHAs
lack significant local support, the NPS could exert federal control over nonfederal lands by
influencing zoning and land-use planning, heritage area management plans are overly prescriptive
in regulating private property use, private property protections in legislation might not be adhered
to, and NHA lands may be targeted for federal purchase and management. The lack of a general
statute providing a framework for heritage area establishment, management, and funding has
prompted a different concern—that the process is inconsistent and fragmented. The Bush
Administration has expressed opposition to the designation of new areas until systemic legislation
is enacted. Others are concerned that the enactment of additional heritage bills could substantially
increase the administrative and financial obligations of the NPS. Still other observers recommend
caution in creating NHAs, because in practice NHAs may face an array of challenges to success.
For instance, heritage areas may have difficulty providing the infrastructure that increased
tourism requires.

The Reclamation Act of 1902,⁴⁵ as amended, authorizes the Bureau of Reclamation
(Reclamation), in the Department of the Interior, to construct hundreds of dams, canals, and
power facilities throughout the West. The historical emphasis of Reclamation’s operations was to
provide water for irrigation in the arid and semi-arid areas of the western states. However, more
recent project authorizations have focused on assisting rural areas with municipal and industrial
(M&I) water supply, settling Indian water rights claims, assisting project sponsors with water
reuse and other water supply augmentation projects (e.g., conjunctive use), and supporting
watershed or ecosystem restoration projects.
Reclamation is authorized to conduct initial studies (investigations) of water resource problems;
however, since the mid-1960s, congressional authorization has been required to conduct more in-

⁴⁴^P^r^e^p^a^r^e^d^by^Be^ts^y^A^.^Cody^{, Spe}^cⁱ^a^{list in Na}^tura^{l Re}^so^urc^e^s^P^o^lic^y^.
⁴⁵^{43 U}^.^S.C^.³^{91 e}^t^s^e^q^.

depth “feasibility studies” for project construction. Once a feasibility study is approved, the
agency is authorized to thoroughly examine the feasibility of the proposed project, including
conducting any necessary environmental documentation, benefit-cost analyses, and engineering
studies. Generally, if a project is found to be feasible, Reclamation and/or project sponsors then
seek congressional authorization for project construction.
Subtitles A and C⁴⁶ of Title IX do not appear to be broadly controversial. Subtitle A authorizes
feasibility studies for water projects in 3 states (AZ, CO, and ID), at a total CBO estimated cost of
$7.3 million. The California project is somewhat unusual in that it authorizes the study of a water
tie-in system for four local, nonfederal reservoirs. Subtitle C authorizes transfer of title to two
Reclamation projects, and to clear title of lands related to a third project. None of the provisions
of Subtitle C appear to be particularly controversial, nor would they result in a significant outlay
of federal funds, although some may view such title transfers as a gift of federal assets.
Subtitle B provisions authorize Reclamation to participate in 14 water projects in four western
states (CA, CO, NM, and OR), as well as in an endangered fish recovery program for the Upper
Colorado and San Juan River Basins. Most of the water projects are estimated to cost or receive
appropriations of less than $25 million. The major exception is the Eastern New Mexico Rural
Water System, which is estimated by CBO to cost $384 million over five years. Another item
which some may view as costly is the Upper Colorado endangered fish recovery program.
Because of the high cost of the Eastern New Mexico Rural Water System, the Bush
Administration testified in April 2008 that it could not support the original legislation from which
this provision is derived (S. 2814).
Subtitle D⁴⁷ specifies a 35% nonfederal matching requirement for federal funds made available
under the act. It requires the San Gabriel Basin Water Quality Authority and the Central Basin
Municipal Water District to provide the 35% nonfederal match for specified water quality
projects. Under P.L. 106-554, a total of $85 million was authorized for the San Gabriel Basin
Restoration Fund, with the requirement that no funds would be obligated unless at least 35% of
the funds are provided by nonfederal interests. Sec. 9301 increases the authorization to $146.2
million, and subjects the remainder of the funds after the $85 million has been appropriated to the
35% nonfederal matching requirement. Sec. 9301 also limits the total appropriations that can be
made available to the Central Basin Water Quality Project to be no more than $21.2 million.
The Executive Branch indicates that it has not budgeted for the San Gabriel Basin Restoration
Fund in the past, and that it does not support an increased cost ceiling. In testimony before the
Senate Energy and Natural Resources Committee’s Subcommittee on Water and Power,
Reclamation Commissioner Robert Johnson stated that he believes resources should be allocated
to other priorities. He indicated that Reclamation’s role should be limited to assisting concerned
parties, when possible and within its mission scope and budget, to advance the goal of ⁴⁸
groundwater cleanup in the San Gabriel Basin.

⁴⁶^P^r^e^p^a^r^e^d^by^Be^ts^y^A^.^Cody^{, Spe}^cⁱ^a^{list in Na}^tura^{l Re}^so^urc^e^s^P^o^lic^y^.
⁴⁷^P^r^ep^ared^b^y^P^e^t^e^r^F^o^l^g^er,^S^p^eci^alⁱ^s^tⁱⁿ^Eⁿ^ergy^an^d^Nat^u^ral^Reso^u^r^{ces P}^o^lⁱ^cy^;^an^d^P^e^{rvaze A}^.^S^h^ei^kh^,^S^p^eci^alⁱ^s^tⁱⁿ
^Na^tura^{l Re}^sourc^e^s^P^o^lic^y^.
⁴⁸^R^obe^r^t^W^.^J^o^hns^on,^C^o^m^m^is^sⁱ^one^r^,^B^u^r^e^a^u^of^R^e^c^l^a^m^a^{tion, U}^.^S^.^D^e^{pt. of}^the^Iⁿ^te^rⁱ^or^,^Sta^t^e^m^eⁿ^{t be}^f^o^r^e^the^Se^na^te
^Ene^r^gy^a^{nd Na}^tura^{l Re}^sourc^e^s^{, S}^ubc^om^m^itte^e^{on W}^a^te^r^a^nd^Pow^e^{r, (W}^a^s^hing^ton,^{DC: A}^p^{ril 2}⁴^,²⁰^08),^a^t
^http:^//w^w^w^.us^b^r^.^g^o^v^/^ne^w^s^r^oom^/^t^e^s^ti^m^ony^/^d^e^t^a^il.c^f^m^?^R^e^c^o^r^d^I^D⁼¹²²¹^.

Subtitle E⁴⁹ concerns the Lower Colorado Multi-Species Conservation Program (MSCP), a ⁵⁰⁵¹
multi-stakeholder initiative to conserve 26 species along the Lower Colorado River while
maintaining water and power supplies for farmers, tribes, industries, and urban residents. The
MSCP took effect in 2005 and has a 50-year term. The expected total cost of the program is
estimated at $626 million (in 2003 dollars), to be split 50-50 between federal and nonfederal
entities.
S.Amdt. 5662 would authorize appropriations to cover the federal share of costs, authorize the
Secretary of the Interior to implement MSCP in accordance with the program documents, and
waive sovereign immunity of the U.S. government to allow non-federal parties to enforce
program documents.
The issue of whether the United States should waive its sovereign immunity so that the other
parties to the MSCP can sue to enforce it has been controversial since the legislation was first
proposed. The Implementing Agreement of the MSCP contains no express waiver of sovereign
immunity by the federal government. Without the waiver, it appears likely that nonfederal parties
would not be able to pursue specific performance or declaratory judgment actions against the
federal parties to get them to comply with the agreement. Notably, the MSCP affects states all
located in the Ninth Circuit, which has held that those types of actions cannot be brought in any
court without an express waiver of sovereign immunity. This provision would allow the
nonfederal parties to sue to enforce the agreement, but not to obtain monetary damages.
Many contend that this legislation is an important legislative authorization for an administratively
approved program to ensure water supplies and deliveries from the Lower Colorado River while
maintaining compliance with the Endangered Species Act. Some express concerns that this
legislation might be unnecessary since the project is already underway and the authority for
federal participation in the project already exists.
Subtitle F⁵² of Title IX is quite broad in the issues it covers on the effect of climate change on
hydropower, threatened and endangered species, and stream flow data collection, and more.
However, it may also be restrictive since it does not appear to provide an overall strategy to
address the possible effects of climate change on water availability and agency responses. Subtitle
F does not address water quality or activities of the Environmental Protection Agency, which may
be fundamental to water availability. This omission limits how the bill is applied to many of the
water issues and may result in duplicative or non-complementary activities.
Programmatic provisions that make broad changes to an agency’s authority, especially those that
may change its relationship and interactions with Congress, can be controversial. For example, §
9503(d) would provide programmatic feasibility authority for climate change mitigation
strategies, including the study of new dams, reservoirs, canals, etc. This authority may be

⁴⁹^P^r^ep^ared^b^y^P^e^{rvaze A}^.^S^h^ei^kh^,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Reso^u^r^ces^P^o^lⁱ^c^y^;^an^d^Kri^s^tⁱⁿ^{a A}^l^exan^d^e^r,^L^e^gi^sl^atⁱ^v^e
^A^ttorne^y^.
⁵⁰^T^h^e^sta^k^e^holde^{rs inc}^l^u^d^e^six^f^e^de^ra^{l a}^{nd sta}^t^e^a^g^eⁿ^cⁱ^e^s^{, six}^tribe^s^{, a}^nd^{36 c}ⁱ^tie^{s a}^{nd w}^a^te^{r a}^nd^pow^e^r^a^u^thor^itie^s.
^Sta^k^e^holde^{rs se}^rv^e^m^o^re^thaⁿ²⁰^m^{illion re}^side^{nts i}ⁿ^t^h^e^re^gⁱ^on,^aⁿ^{d irrig}^a^te^tw^{o m}^{illion a}^c^r^e^s^of^fa^r^m^la^nd.
⁵¹^T^h^e^r^e^a^r^e^sⁱ^x^f^e^de^r^a^ll^y^lis^te^{d s}^p^e^cⁱ^e^s^unde^r^t^h^e^En^da^ng^e^r^e^d^S^p^e^cⁱ^e^s^A^c^{t a}^{nd tw}^{o c}^a^ndida^te^s^p^e^cⁱ^e^s^.^T^h^e^lis^te^{d s}^p^e^cⁱ^e^s
^a^r^e^:^the^bo^ny^ta^{il c}^hub,^r^a^z^o^r^b^a^c^k^s^u^c^k^e^r^{, hum}^pba^c^k^c^{hub, Y}^u^m^a^c^l^a^ppe^r^r^a^il,^de^s^e^r^t^tor^t^ois^e⁽^M^o^j^a^v^e^po^pula^tⁱ^on)^{, a}ⁿ^d
^southw^e^s^te^{rn w}^illow^f^l^y^c^a^t^c^h^e^r^.
⁵²^P^r^ep^ared^b^y^Ni^{c L}^aⁿ^e^,^Aⁿ^al^ystⁱⁿ^Nat^u^ral^Reso^u^r^ces^P^o^lⁱ^c^y^;^an^d^Ni^co^l^e^T^.^Cart^er,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^r^a^l^Reso^u^r^ces
^Polic^y^.

controversial in states that have complex water storage and transport systems, conflicts over water
quality and quantity, or stakeholder interests in expanding surface storage and conveyance. It also
could be controversial since it would reverse a congressional decision from 1965 to revoke ⁵³
Reclamation’s programmatic feasibility authority. Additionally, legislation proposing changes to
water resources management is often controversial.
Subtitle G⁵⁴ concerns Reclamation’s aging infrastructure. It would require the Commissioner of
Reclamation to carry out, among other things, annual inspections Reclamation-owned and -
operated facilities, as well as Reclamation facilities operated and maintained by water users.
Additionally, the subtitle would require the Secretary to develop a national priorities list of
infrastructure maintenance needs and establish standards and guidelines for the maintenance of
these facilities.
This subtitle addresses an issue that has been and will likely continue to be controversial:
prioritizing a finite budget for asset management objectives. There are instructions for a specific
structure and approach to aging infrastructure assessment outlined in Subtitle G. When this
direction is considered along with the cost sharing requirements, repayment terms, and other
details of different provisions addressing Reclamation infrastructure such as § 9105 and § 9106
that appear to vary by project;. some may view this as evidence of the need for a more
transparent, standardized approach to addressing Reclamation’s infrastructure needs. As an
example, § 9106(d) appears in some cases to require no contributions from project beneficiaries
or the state. A requirement of some cost-sharing contribution is common, although the percentage
may vary as indicated above. As Reclamation’s infrastructure continues to age, these conflicts
may arise more frequently. Additionally, more expensive recapitalization projects may exceed the
financial means of local operators in the case of transferred works and could drive those entities ⁵⁵
to seek congressional support for project funding.

Subtitle A, regarding the San Joaquin River Restoration Settlement, would authorize
implementing a settlement in a long-standing dispute and lawsuit over management of waters in
the San Joaquin River Basin in the Central Valley of California. The legislation has been very
controversial both for its direct spending provisions, potential impacts on downstream interests,
and loss of agricultural water, as well as for impacts on Delta and ocean fisheries, and water users
if the legislation is not approved. S.Amdt. 5662 reduces the initial direct spending compared to
the original legislation—S. 27 and H.R. 24—to $88 million, which is expected to be offset by
early payment of water user repayment obligations. Another $250 million in discretionary
funding is also authorized. Settlement opponents fear water may be required to be released
without a guarantee of adequate funding to implement projects to protect property owners and
other third parties to the settlement. Total restoration costs are estimated to range from $250
million to $1.1 billion. Settlement proponents argue that further funding can be secured and that

⁵³^Se^c^tion⁸^of^P.L^.^89-⁷²⁽¹^{6 U}^.^S.^C^.^§⁴⁶^0l-¹⁹⁾^.
⁵⁴^P^r^ep^ared^b^y^Ni^{c L}^aⁿ^e^,^Aⁿ^al^ystⁱⁿ^Nat^u^ral^Reso^u^r^ces^P^o^lⁱ^c^y^.
⁵⁵^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^R^e^c^l^a^m^a^tion’^s^a^g^ing^inf^r^a^s^tr^uc^tur^e^{, s}^e^e^C^R^{S R}^e^por^t^R^L³⁴⁴⁶⁶^,^Th^{e B}^u^{reau o}^f
^Re^c^l^am^atio^n’^s^A^gⁱⁿ^{g I}ⁿ^fr^as^tr^uc^t^u^r^e^{, by}^Nⁱ^c^L^a^ne^.
⁵⁶^P^r^ep^ared^b^y^Bet^s^y^A^.^Co^d^y^,^S^p^eci^alⁱ^s^tⁱⁿ^Nat^u^ral^Resou^r^ces^P^o^lⁱ^c^y^;^an^d^Ro^{ger W}^a^l^k^e,^S^p^eci^alⁱ^s^tⁱⁿ^Ameri^can^In^dⁱ^an
^Polic^y^.

delay risks putting the issue back before a federal judge for remedy in a case that had already ⁵⁷
been decided in favor of restoring river flows to re-establish salmon populations.
Subtitle B concerns rural water projects involving the Navajo Nation in northwestern New
Mexico. The federal government is considered to have a trust responsibility to protect Indian
water rights. Settlements of Indian water rights claims require federal approval, and when a
settlement requires federal expenditures, Congress must approve. Congress has enacted 20 Indian
water rights settlements during the past three decades, but federal funding for the settlements is a
recurring issue. Administrations have often opposed Indian water rights settlements for cost-
related reasons, arguing that nonfederal parties were not paying their fair share, or that the federal
expenditure exceeded the Administration’s calculated federal liability. Some tribes and other
nonfederal parties argue, on the other hand, that funding for Indian water rights settlements is
insufficient, especially for water infrastructure authorized in the settlements, and that the use, and
uncertainties, of discretionary appropriations makes settlements harder. They propose an ongoing,
dedicated source of funding for Indian water rights settlements. All but one of the 20 settlements ⁵⁸
used only discretionary appropriations.
Subtitle B would make use of the Reclamation Fund, which is financed partly through
Reclamation water and power project revenues, to pay costs of water infrastructure required in
certain Indian water rights settlements. It would set aside $120 million annually from
Reclamation Fund revenues during FY2019-FY2028 for deposit in a new “Reclamation Water
Settlements Fund” for expenditure, without further appropriation. These funds would go toward
Reclamation activities to implement specified Indian water rights settlements, if the settlements
are approved by Congress, in a specific order of priority. Construction of the Navajo-Gallup
Water Supply Project, which is integral to one of the settlements specified, would be the first
priority. None of the 20 Indian water rights settlements has been funded by such a set-aside from
the Reclamation Fund. The Bush Administration opposed this provision because the new fund’s
expenditures would be excluded from the appropriations process, which it was concerned would
prevent future presidents or Congresses from setting their own appropriations priorities.
This subtitle also specifically approves a water rights settlement between the Navajo Nation and
New Mexico. Costs of the Navajo-Gallup Water Supply Project, necessary to the settlement,
would chiefly be funded through the Reclamation Water Settlements Fund (as noted above). The
Bush Administration opposed this settlement, because, it argued, the United States is not a
signatory to the settlement, the total cost was excessive, certain infrastructure costs were not yet
known, cost-sharing was too limited, and federal legal liabilities were still uncertain. Proponents
argue that the settlement is fair, settles 30-year-old litigation, and delivers badly needed water,
and that the new Reclamation Water Settlements Fund provides certainty that the settlement will
be implemented.

⁵⁷^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^the^c^ont^r^o^v^e^r^s^ie^s^a^s^s^o^cⁱ^a^t^e^d^w^{ith the}^Se^tt^l^e^m^e^{nt le}^gⁱ^s^l^a^{tion s}^e^e^C^R^S^R^e^por^t^R^L³⁴²³^7,^Saⁿ
^J^oaq^uin^Riv^e^r^Re^storati^oⁿ^Se^ttle^me^nt^{, by}^Be^ts^y^A^.^Cody^e^t^a^l^.
⁵⁸^T^h^e^one^e^x^c^e^p^tion^,^the^A^r^iz^ona^W^a^te^{r Se}^ttle^m^e^nts^A^c^{t (P}^.L^{. 1}^08-⁴⁵¹^),^use^d^pa^rt^of^the^inc^o^m^e^of^t^h^e^Col^o^ra^do^Riv^e^r
^L^o^w^e^r^B^a^sⁱ^{n D}^e^v^e^lop^m^eⁿ^{t Fun}^d⁽^w^hic^h^is^f^unde^d^by^r^e^pay^m^eⁿ^ts^f^r^o^m^the^C^e^ntr^a^{l A}^r^iz^ona^Pr^oje^c^t⁾^{to pa}^y^f^o^r^w^a^te^r
^inf^r^a^s^truc^ture^c^o^{sts of}^se^v^e^ra^{l India}ⁿ^w^a^te^{r rig}^h^{ts se}^ttle^m^e^{nts in A}^rⁱ^z^ona^.

Section 11001 would reauthorize the National Geologic Mapping Act of 1992 which was last
reauthorized in 1999. The act established a cooperative geologic mapping program between the
U. S. Geological Survey (USGS) and the geological surveys of each state acting through the
Association of American State Geologists (AASG). This program has not been controversial in
the past.
Section 11002 concerns the New Mexico Water Resources Study and may be controversial. This
section directs the Secretary of the Interior, acting through the USGS, in coordination with the
State of New Mexico, to study water resources in several basins in New Mexico. The study would
focus on groundwater resources, and include an analysis of the salinity, recharge potential,
groundwater-surface water interaction, the susceptibility of aquifers to contamination, and the
amount of water available for human use. The Secretary must submit a report of the study results
within two years of enactment.
Concerns about § 11002 include the cost and possible duplication of previous and existing federal
efforts to study water resources in New Mexico; in particular groundwater studies of the middle
Rio Grande Basin. The USGS has several ongoing programs that study the Nation’s groundwater
resources.

This title contains six apparently unrelated provisions covering the following issues: management
and distribution of North Dakota trust funds; amendments to the Fisheries Restoration and
Irrigation Mitigation Act of 2000 including that funding provided by the Bonneville Power
Administration be credited toward the nonfederal share of project costs; amendments to the
Alaska Natural Gas Pipeline Act affecting personnel matters; the creation of an additional
Assistant Secretary of Energy for electricity delivery and reliability; land conveyance for the
Lovelace Respiratory Research Institute; and authorization of appropriations for national tropical
botanical gardens.
The question of altering the governing provisions of a trust fund established by a state’s enabling
act is controversial, largely due to the perceived sanctity of enabling acts. States are restricted in
how they can manage the trust funds set up by the enabling acts. Because the provisions of
enabling acts are required to be codified within that state’s constitution, a modification requires
action by the state and the federal government. Section 12001, Management and Distribution of
North Dakota Trust Funds, would give North Dakota additional flexibility in managing its trust
funds. The provision appears to satisfy both aspects of altering a trust fund by addressing the
federal statutory changes needed and referencing that the state constitutional change has been
effected.
While none of the remaining provisions appear to be broadly controversial, each likely has its
proponents and opponents.

⁵⁹^P^r^ep^ared^b^y^P^e^t^e^r^F^o^l^g^er,^S^p^eci^alⁱ^s^tⁱⁿ^Eⁿ^ergy^an^d^Nat^u^ral^Reso^u^r^{ces P}^o^lⁱ^cy^.
⁶⁰^P^r^ep^ared^b^y^Ni^{c L}^aⁿ^e^,^Aⁿ^al^ystⁱⁿ^Nat^u^ral^Reso^u^r^ces^P^o^lⁱ^c^y^;^an^d^Kri^s^tⁱⁿ^{a A}^l^exan^d^e^r,^L^e^gi^sl^atⁱ^v^e^A^t^t^o^rn^ey^.

^Nⁱ^{c L}^aⁿ^e^{, C}^oordiⁿ^a^t^o^r ^{Nicole T}^.^C^a^rter
^An^al^y^s^{t i}ⁿ^Nat^u^r^a^{l Reso}^u^r^ces^P^o^licy^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy
^dl^an^e@^crs^.^l^o^c.^g^o^v^,^7-⁷⁹⁰⁵ⁿ^cart^e^r@^crs^.^l^o^c.g^o^v^,^7-⁰⁸⁵⁴
^Be^t^s^y^A^.^C^o^d^y ^{M. Ly}ⁿⁿ^{e C}^o^rn
^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy
^bcody^@^c^r^s^.l^oc.g^ov^{, 7-}⁷²²⁹^l^c^orn^@^crs^.^l^o^c.g^o^v^,^7-⁷²⁶⁷
^P^e^ter^Fo^lg^er ^Ro^{ss W}^.^Go^r^t^e
^Sp^{ecialist i}ⁿ^En^er^g^y^aⁿ^d^Natu^r^a^{l Reso}^u^r^{ces P}^o^lic^y^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy
^pf^ol^g^e^r@^cr^s^.^l^o^c.g^o^v^,^7-¹⁵¹⁷^rg^ort^e^@^c^rs^.l^oc.g^ov^{, 7}^-⁷²⁶⁶
^C^a^rol^Hardy^Viⁿ^c^eⁿ^t ^P^e^rv^{aze A}^.^Sh^eⁱ^kh
^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy^Sp^{ecialist i}ⁿ^Nat^u^r^a^{l Reso}^u^r^{ces P}^o^licy
^ch^vⁱⁿ^c^eⁿ^t^@^crs^.^l^o^c.g^o^v^,^7-⁸⁶⁵¹^ps^h^eⁱ^k^h@^crs^.^l^o^c.g^o^v^,^7-⁶⁰⁷⁰
^D^a^vi^d^L.^W^hⁱ^t^e^maⁿ ^Kr^istiⁿ^a^A^l^ex^aⁿ^d^e^r
^An^al^y^s^{t i}ⁿ^Nat^u^r^a^{l Reso}^u^r^ces^P^o^licy^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^d^w^hⁱ^t^e^m^a^n@^crs^.^l^o^c.g^o^v^,^7-⁷⁷⁸⁶^k^a^l^e^x^aⁿ^d^er@^c^rs^.l^oc.^g^ov^{, 7-}⁸⁵⁹⁷
^C^ynt^hi^a^B^r^o^u^g^h^e^r ^Car^o^{l T}^o^lan^d
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^c^b^r^o^ughe^r^@^c^r^s.^l^o^c^.^go^v,⁷^-⁹¹²¹^ct^ol^an^d@^crs^.^l^o^c.g^o^v^,^7-⁴⁶⁵⁹
^{Gail McCallio}ⁿ ^Ro^ge^r^W^a^lke
^Specialis^{t i}ⁿ^{Social P}^o^lic^y^Specialis^{t i}ⁿ^Am^erican^In^diaⁿ^P^o^licy
^gm^cca^l^lⁱ^on@^crs^.^l^o^c.g^o^v^,^7-⁷⁷⁵⁸^r^w^al^k^e^@^c^r^s^.l^oc.g^ov^{, 7-}⁸⁶⁴¹
^Sa^nd^r^a^L.^J^o^hn^soⁿ
^In^f^o^r^m^a^tion^R^e^s^earch^Specialⁱ^s^t
^s^j^ohⁿ^s^on@^crs^.^l^o^c.g^o^v^,^7-⁷²¹⁴

^{Staff Member}^{Area o}^f^Expertise^{CRS Division}^Phone
^{Kristina Alexander}^{Legal Issues—Pu}^{blic Lands, Nat}^ur^{al Resources}^{American Law Division}^7-85⁹⁷
^{Cynthia Brough}^er^{Legal Issues—Water}^Law^{American Law Division}^7-91²¹
^{Nicole T. Carter}^{Water Policy}^{Resources, Science, and Ind}^ustry^Divisi^on^7-08⁵⁴
^{Bureau of Reclamation,}^{Resources, Science, and Ind}^ustry
^{Betsy A. Cody}^{Water Policy}^Divisi^on^7-72²⁹
^{M. Lyn}^{ne Corn}^Department^{of the}^{Interior A}^uth^orizati^ons^{Resources, Science, and Ind}^ustry^Divisi^on^7-72⁶⁷
^{Peter Folger}^{Unites States Geological Survey}^{Resources, Science, and Ind}^ustry^Divisi^on^7-15¹⁷
^{Ross W. Gorte}^{Forest Service, Wil}^{derness La}^{nds, National}^{Park Service}^{Resources, Science, and Ind}^ustry^Divisi^on^7-72⁶⁶
^{Carol Hardy}^{Bureau of}^{Land Ma}^nageme^{nt, Nat}^{ional Heritage}^{Resources, Science, and Ind}^ustry^7-86⁵¹
^Vincent^Areas^Divisi^on
^{Sandra L. Johnson}^{Rivers and Trails}^{Knowledge Services Group}^7-72¹⁴
^{Bureau of Reclamation,}^{Resources, Science, and Ind}^ustry
^{Nic Lane}^{Aging Infra}^stru^cture^Divisi^on^7-79⁰⁵
^{Gail McCalli}^on^{Historic Preservation Fund}^{Domestic Socia}^{l Po}^licy^7-77⁵⁸
^{Pervaze A. Sheikh}^{Ecosystem I}^ssues^{Resources, Science, and Ind}^ustry^Divisi^on^7-60⁷⁰
^{Carol To}^land^{Legal Issue—Budget a}^{nd Ap}^propr^iations^{American Law Division}^7-46⁵⁹
^{Roger Walke}^{Native American Water}^Settlements^{Domestic Socia}^{l Po}^licy^7-86⁴¹
^{David L.}^{National Park Service}^{Resources, Science, and Ind}^ustry^7-77⁸⁶
^Whiteman^Divisi^on