[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1904 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1904

  To amend the Elwha River Ecosystem and Fisheries Restoration Act to 
 provide further for the acquisition and removal of the Elwha dam and 
acquisition of Glines Canyon dam and the restoration of the Elwha River 
   ecosystem and native anadromous fisheries, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 1, 1998

  Mr. Gorton introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
  To amend the Elwha River Ecosystem and Fisheries Restoration Act to 
 provide further for the acquisition and removal of the Elwha dam and 
acquisition of Glines Canyon dam and the restoration of the Elwha River 
   ecosystem and native anadromous fisheries, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. ACQUISITION OF PROJECTS AND REMOVAL OF DAMS.

    (a) In General.--The Elwha River Ecosystem and Fisheries 
Restoration Act (106 Stat. 3173) is amended by striking section 3 and 
inserting the following:

``SEC. 3. ACQUISITION OF PROJECTS.

    ``(a) In General.--As soon as practicable after sums are 
appropriated for the purpose, the Secretary shall acquire the Elwha 
Project and Glines Project for a purchase price of $29,500,000.
    ``(b) Release From Liability.--
            ``(1) In general.--Subject to paragraph (2), the 
        acquisition of the Projects shall be conditioned on a release 
        from liability providing that all obligations and liabilities 
        of the owner and the local industrial consumer to the United 
        States arising from the Projects, based on ownership or on a 
        license, permit, contract, or other authority (including 
        Project removal and any ecosystem, fish and wildlife 
        mitigation, and restoration obligations), shall, from the 
        moment of title transfer, be deemed to have been satisfied.
            ``(2) Liability to indian tribes.--The United States may 
        not assume or satisfy the liability, if any, of the owner or 
        local industrial consumer to any federally recognized Indian 
        tribe, nor shall any such liability be deemed satisfied without 
        the consent of the Indian tribe.
    ``(c) Elwha Project.--
            ``(1) Removal of dam.--
                    ``(A) In general.--After acquiring the Elwha 
                Project, the Secretary shall remove the Elwha dam.
                    ``(B) Protection of water supply.--
                            ``(i) In general.--Before commencing 
                        removal of the Elwha dam or taking any steps to 
                        breach, bypass, or otherwise alter the water 
                        flow from the Elwha dam, the Secretary shall 
                        take all such actions as are necessary to 
                        ensure the continued availability, after 
                        removal of the dam, of the quantity and quality 
                        of water that is available, as of the date of 
                        enactment of this paragraph, to the city of 
                        Port Angeles, Washington, the Dry Creek Water 
                        Association, current (as of the date of 
                        enactment of this paragraph) and future 
                        industrial water users, and other current users 
                        of water from the Elwha River.
                            ``(ii) Actions included.--The actions that 
                        the Secretary shall take under clause (i) 
                        include--
                                    ``(I) the design, construction, 
                                operation, and maintenance of new or 
                                improved water treatment or storage 
                                facilities; and
                                    ``(II) the mitigation of any injury 
                                to fisheries and remediation of any 
                                degradation in water quality that may 
                                result from the removal of or any other 
                                change in the water flow from the Elwha 
                                dam.
                            ``(iii) Payment of costs.--The cost of each 
                        action taken under clause (i) shall be borne by 
                        the Secretary.
            ``(2) Evaluation of effect of removal.--For a period of 12 
        years during the removal phase of the Elwha dam, the Secretary 
        shall make a thorough evaluation of the impact of removal of 
        the dam on fish runs.
            ``(3) Compensation for lost revenue.--After the acquisition 
        of the Projects, the Secretary shall pay the Clallam County 
        Board of Commissioners $150,000 per year for a period of 12 
        years for the purposes of recovering lost revenue under the 
        condition that the county dedicate at least 50 percent of each 
        payment to studying the river system before, during, and after 
        dam removal.
    ``(d) Glines Project.--
            ``(1) In general.--As soon as practicable after sums are 
        appropriated for the purpose, the Secretary shall acquire the 
        Glines Project.
            ``(2) Delay in removal of dam.--
                    ``(A) In general.--The Secretary shall continue 
                operation of, and shall not commence removal of, the 
                Glines Canyon dam for a period of 12 years after the 
                Elwha dam has been removed.
                    ``(B) Removal.--After the 12-year period described 
                in subparagraph (A), the Secretary may, subject to the 
                availability of appropriations, remove the Glines 
                Canyon Project, if the Secretary determines that the 
                benefit to fisheries and restoration of the natural 
                state of the river exceeds the value of power and the 
                desirability of the lake by a margin that is sufficient 
                to warrant the expenditure of the removal cost.
                    ``(C) Engineering and design study.--As soon as 
                practicable after the date of enactment of this 
                paragraph, the Secretary shall--
                            ``(i) complete an engineering and design 
                        study to determine the most cost-effective 
                        manner in which transmission lines and 
                        operational controls can be reconfigured to 
                        permit operation of the Glines Canyon dam 
                        during the 12-year period described in 
                        subsection (a)(2); and
                            ``(ii) evaluate the impact that managing 
                        the Glines Canyon Project for fisheries 
                        restoration will have on future hydropower 
                        operations.
            ``(3) Fisheries restoration enhancement efforts.--
                    ``(A) In general.--To the extent practicable, the 
                Secretary shall develop and implement a comprehensive 
                fish enhancement plan with the Elwha Citizens 
                Commission, the Lower Elwha Klallam tribe, the National 
                Marine Fisheries Service, the Washington Department of 
                Fish and Wildlife, and other persons and entities 
                directly affected by management decisions on the Elwha 
                River.
                    ``(B) Limitation.--The comprehensive fish 
                enhancement plan shall not compromise or preempt--
                            ``(i) commitments for power generation on 
                        the river in effect on the date of enactment of 
                        this paragraph; or
                            ``(ii) the authority of the Secretary to 
                        remove the Glines Canyon Project before the 12-
                        year period described in subsection (a)(2) has 
                        expired.''.
    (b) Conforming Amendments.--The Elwha River Ecosystem and Fisheries 
Restoration Act (106 Stat. 3173) is amended--
            (1) in section 4--
                    (A) in subsection (a)--
                            (i) in the matter preceding paragraph (1), 
                        by striking ``Effective'' and all that follows 
                        through ``implement'' and inserting ``Effective 
                        60 days after date of conveyance of the 
                        Projects, the Secretary shall, subject to the 
                        availability of appropriated funds, take such 
                        actions as are necessary to implement''; and
                            (ii) in paragraph (1), by striking 
                        ``referred to in section 3(c)(2) for the 
                        removal of the dams and full;'' and inserting 
                        ``for the removal of the Elwha dam and;'' and
                    (B) in the first sentence of subsection (b), by 
                striking ``referred to in section 3(c)(2)'';
            (2) in section 5(a), by striking ``as provided in section 
        3(e)'';
            (3) in section 6--
                    (A) in the first sentence of subsection (a), by 
                striking ``makes the determination to remove the dams 
                and''; and
                    (B) in the first sentence of subsection (b)(1)--
                            (i) by striking ``makes the determination 
                        to remove the dams and''; and
                            (ii) by inserting ``of the Elwha Project'' 
                        after ``removal''; and
            (4) in section 7(a)--
                    (A) by striking ``makes the determination to remove 
                the dams and''; and
                    (B) by inserting ``of the Elwha Project'' after 
                ``removal''.

SEC. 2. COLUMBIA-SNAKE RIVER HYDROELECTRIC SYSTEM PROTECTION.

    (a) In General.--Notwithstanding the Endangered Species Act (42 
U.S.C. 4321 et seq.) or any other Federal or State law (including a 
regulation), or Federal Energy Regulatory Commission license condition, 
unless specifically authorized by an Act of Congress, a Federal or 
State agency shall not require, approve, authorize, fund, or undertake 
any action that would--
            (1) impair the ability of flood control facilities located 
        in the Columbia-Snake River basin to adequately protect the 
        safety of humans and property from damage due to flooding;
            (2) reduce the capability of the Federal Columbia River 
        Power System to generate electric energy or capacity below the 
        operations analyzed in the Preferred Alternative of the 
        Columbia River System Operation Review Final Environmental 
        Impact Statement, and thereafter adopted, in conjunction with 
        the National Marine Fisheries Service March 2, 1995 biological 
        opinion of Federal Columbia River Power System operations by 
        the Bonneville Power Administration, the Army Corps of 
        Engineers, and the Bureau of Reclamation except as may be 
        necessary for flood control or routine maintenance or repair of 
        generating units;
            (3) reduce the power and energy generating capability of 
        any dam on the Columbia or Snake Rivers or their tributaries 
        licensed by the Federal Energy Regulatory Commission to a level 
        below 85 percent of its capability in 1990;
            (4)(A) reduce the level of the Columbia-Snake River 
        reservoirs below minimum operating pools (as of the date of 
        enactment of this Act), except as may be necessary for flood 
        control or maintenance or repair of dam and navigation locks;
            (B) reduce the reservoir levels below established minimum 
        irrigation pools; or
            (C) further restrict access to the Columbia River or Snake 
        River for irrigation or recreational use;
            (5) impair the Columbia-Snake River inland navigation 
        system from Bonneville Dam to Lewiston, Idaho (as of the date 
        of enactment of this Act), which shall remain at all times 
        fully operational as authorized by Congress;
            (6) restrict or abrogate in any way the management or 
        control of State water rights; or
            (7) require the release of stored water from any Federal, 
        State, or private water storage project.
    (b) No Action Above River Mile 106.--Unless specifically authorized 
by Congress--
            (1) a Federal or State agency shall not take any action 
        above Columbia River mile 106 that would reduce the 
        Congressionally required minimum 14 foot navigation channel and 
        navigation lock sill clearance at minimum regulated flow, 
        except as may be necessary for purposes of flood control, or 
        maintenance and repairs; and
            (2) no Federal funds may be expended to study the reduction 
        of the minimum channel depth or lock sill clearance unless 
        specifically authorized by Congress.
    (c) Judicial Review.--
            (1) In general.--Except to enforce this section, a Federal 
        or State court, in reviewing agency action concerning any 
        federally authorized or licensed dam or navigational lock in 
        the Columbia-Snake River basin, shall be without jurisdiction 
        to issue any equitable relief concerning the operation, 
        removal, breach, or structural modification of the dam or lock, 
        and decisions concerning the operation, removal, breach, or 
        structural modification of those dams and locks are declared to 
        be within the exclusive competence of Congress.
            (2) Civil action.--A person whose interests may be 
        adversely affected by a violation of this section may bring a 
        civil action in the person's own behalf to enjoin any person, 
        including the United States and any governmental 
        instrumentality or agency (to the extent permitted by the 11th 
        amendment to the Constitution), from continuation of the 
        violation.
            (3) Period of limitation.--A civil action to enjoin a 
        violation of this section shall be brought not later than 90 
        days of the date on which the agency action becomes final.
            (4) Exclusive venue.--A civil action to enjoin a violation 
        of this section may be brought only in the United States 
        District Court for the District of Columbia.
            (5) Stay.--On motion by any party to a civil action under 
        this subsection, the Court, without requiring bond or security 
        of any kind, shall immediately stay implementation of the 
        agency action pending final judgment (including judgment after 
        appeal) in the civil action.
                                 <all>