[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1307 Reported in Senate (RS)]






                                                       Calendar No. 466
108th CONGRESS
  2d Session
                                S. 1307

                          [Report No. 108-249]

 To authorize the Secretary of the Interior, acting through the Bureau 
  of Reclamation, to assist in the implementation of fish passage and 
   screening facilities at non-Federal water projects, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 20, 2003

   Mr. Smith introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

                             March 29, 2004

              Reported by Mr. Domenici, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
 To authorize the Secretary of the Interior, acting through the Bureau 
  of Reclamation, to assist in the implementation of fish passage and 
   screening facilities at non-Federal water projects, and for other 
                               purposes.

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

<DELETED>SECTION 1. DEFINITIONS.</DELETED>

<DELETED>    As used in this Act--</DELETED>
        <DELETED>    (1) ``Secretary'' means the Secretary of the 
        Interior, acting through the Commissioner of 
        Reclamation;</DELETED>
        <DELETED>    (2) ``Reclamation'' means the Bureau of 
        Reclamation, United States Department of the 
        Interior;</DELETED>
        <DELETED>    (3) ``Fish passage and screening facilities'' 
        means ladders, collection devices, and all other kinds of 
        facilities which enable fish to pass through, over, or around 
        water diversion structures; facilities and other constructed 
        works which modify, consolidate, or replace water diversion 
        structures in order to achieve fish passage; screens and other 
        devices which reduce or prevent entrainment and impingement of 
        fish in a water diversion, delivery, or distribution system; 
        and any other facilities, projects, or constructed works which 
        are designed to provide for or improve fish passage while 
        maintaining water deliveries and to reduce or prevent 
        entrainment and impingement of fish in a water storage, 
        diversion, delivery, or distribution system of a water 
        project;</DELETED>
        <DELETED>    (4) ``Federal reclamation project'' means a water 
        resources development project constructed, operated, and 
        maintained pursuant to the Reclamation Act of 1902 (32 Stat. 
        388), and acts amendatory thereof and supplementary 
        thereto;</DELETED>
        <DELETED>    (5) ``Non-Federal party'' means any non-Federal 
        party, including federally recognized Indian tribes, non-
        Federal governmental and quasi-governmental entities, private 
        entities (both profit and non-profit organizations), and 
        private individuals;</DELETED>
        <DELETED>    (6) ``Snake River Basin'' means the entire 
        drainage area of the Snake River, including all tributaries, 
        from the headwaters to the confluence of the Snake River with 
        the Columbia River; and</DELETED>
        <DELETED>    (7) ``Columbia River Basin'' means the entire 
        drainage area of the Columbia River located in the United 
        States, including all tributaries, from the headwaters to the 
        Columbia River estuary.</DELETED>

<DELETED>SEC. 2. AUTHORIZATION.</DELETED>

<DELETED>    (a) Subject to the requirements of this Act, the Secretary 
is authorized to plan, design, and construct, or provide financial 
assistance to non-Federal parties to plan, design, and construct, fish 
passage and screening facilities at any non-Federal water diversion or 
storage project located anywhere in the Columbia River Basin when, and 
only when, the Secretary determines that such facilities would enable 
Reclamation to meet its obligations under 16 U.S.C. 1536(a)(2) 
regarding the construction and continued operation and maintenance of 
all Federal reclamation projects located in the Columbia River Basin, 
excluding the Federal reclamation projects located in the Snake River 
Basin.</DELETED>

<DELETED>SEC. 3. LIMITATIONS.</DELETED>

<DELETED>    (a) The Secretary may undertake the construction of, or 
provide financial assistance covering the cost to the non-Federal 
parties to construct, fish passage and screening facilities at non-
Federal water diversion and storage projects located anywhere in the 
Columbia River Basin only after entering into a voluntary, written 
agreement with the non-Federal party or parties who own, operate, and 
maintain the project, and any associated lands, involved.</DELETED>
<DELETED>    (b) Any financial assistance made available pursuant to 
this Act shall be provided through grant agreements or cooperative 
agreements entered into pursuant to and in compliance with the Federal 
Grant and Cooperative Agreement Act of 1977 (41 U.S.C. 501).</DELETED>
<DELETED>    (c) The Secretary may require such terms and conditions as 
will ensure performance by the non-Federal party, protect the Federal 
investment in fish passage and screening facilities, define the 
obligations of the Secretary and the non-Federal party, and ensure 
compliance with this Act and all other applicable Federal, State, and 
local laws.</DELETED>
<DELETED>    (d) All right and title to, and interest in, any fish 
passage and screening facilities constructed or funded pursuant to the 
authority of this Act shall be held by the non-Federal party or parties 
who own, operate, and maintain the non-Federal water diversion and 
storage project, and any associated lands, involved. In addition, the 
operation, maintenance, and replacement of such facilities shall be the 
sole responsibility of such party or parties and shall not be a project 
cost assignable to any Federal reclamation project.</DELETED>
<DELETED>    (e) Consultation under Section 7 of the Endangered Species 
Act of 1973 (16 U.S.C. 1536) shall not be required based solely on the 
provision of financial assistance under this Act. Projects or 
activities that affect listed species shall remain subject to 
applicable provisions of the Endangered Species Act of 1973.</DELETED>

<DELETED>SEC. 4. OTHER REQUIREMENTS.</DELETED>

<DELETED>    (a) In carrying out this Act, the Secretary shall be 
subject to all Federal laws applicable to the actions to be undertaken 
for the construction of fish passage and screening facilities. The 
Secretary shall assist the non-Federal party or parties who own, 
operate, and maintain a non-Federal water diversion or storage project, 
and any associated lands, to obtain and comply with any required State, 
local, or tribal permits.</DELETED>
<DELETED>    (b) The Secretary shall comply with State water law in the 
application of this Act. All water rights shall remain with the owner 
or operator of any non-Federal water diversion and storage project who 
receives assistance pursuant to this Act.</DELETED>
<DELETED>    (c) The Secretary shall coordinate with the Northwest 
Power Planning Council; appropriate agencies of the States of Idaho, 
Oregon, and Washington; and appropriate federally recognized Indian 
tribes in carrying out the program authorized by this Act.</DELETED>

<DELETED>SEC. 5. INAPPLICABILITY OF FEDERAL RECLAMATION LAW.</DELETED>

<DELETED>    (a) The Reclamation Act of 1902 (32 Stat. 388), and Acts 
amendatory thereof and supplementary thereto, shall not apply to the 
non-Federal water projects at which the fish passage and screening 
facilities authorized by this Act are located, nor to the lands which 
such projects irrigate.</DELETED>
<DELETED>    (b) Notwithstanding any provision of law to the contrary, 
the expenditures made by the Secretary pursuant to this Act shall not 
be a project cost assignable to any Federal reclamation project (either 
as a construction cost or as an operation and maintenance cost) and 
shall be non-reimbursable and non-returnable to the United States 
Treasury.</DELETED>

<DELETED>SEC. 6. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    There are authorized to be appropriated such amounts as 
are necessary for the purposes of this Act.</DELETED>

SECTION 1. DEFINITIONS.

    As used in this Act--
            (1) ``Secretary'' means the Secretary of the Interior, 
        acting through the Commissioner of Reclamation;
            (2) ``Reclamation'' means the Bureau of Reclamation, United 
        States Department of the Interior;
            (3) ``Fish passage and screening facilities'' means 
        ladders, collection devices, and all other kinds of facilities 
        which enable fish to pass through, over, or around water 
        diversion structures; facilities and other constructed works 
        which modify, consolidate, or replace water diversion 
        structures in order to achieve fish passage; screens and other 
        devices which reduce or prevent entrainment and impingement of 
        fish in a water diversion, delivery, or distribution system; 
        and any other facilities, projects, or constructed works or 
        strategies which are designed to provide for or improve fish 
        passage while maintaining water deliveries and to reduce or 
        prevent entrainment and impingement of fish in a water storage, 
        diversion, delivery, or distribution system of a water project;
            (4) ``Federal reclamation project'' means a water resources 
        development project constructed, operated, and maintained 
        pursuant to the Reclamation Act of 1902 (32 Stat. 388), and 
        acts amendatory thereof and supplementary thereto;
            (5) ``Non-Federal party'' means any non-Federal party, 
        including federally recognized Indian tribes, non-Federal 
        governmental and quasi-governmental entities, private entities 
        (both profit and non-profit organizations), and private 
        individuals;
            (6) ``Snake River Basin'' means the entire drainage area of 
        the Snake River, including all tributaries, from the headwaters 
        to the confluence of the Snake River with the Columbia River;
            (7) ``Columbia River Basin'' means the entire drainage area 
        of the Columbia River located in the United States, including 
        all tributaries, from the headwaters to the Columbia River 
        estuary; and
            (8) ``Habitat improvements'' means work to improve habitat 
        for aquatic plants and animals within a currently existing 
        stream channel below the ordinary high water mark, including 
        stream reconfiguration to rehabilitate and protect the natural 
        function of streambeds, and riverine wetland construction and 
        protection.

SEC. 2. AUTHORIZATION.

    (a) In General.--Subject to the requirements of this Act, the 
Secretary is authorized to plan, design, and construct, or provide 
financial assistance to non-Federal parties to plan, design, and 
construct, fish passage and screening facilities or habitat 
improvements at any non-Federal water diversion or storage project 
located anywhere in the Columbia River Basin when the Secretary 
determines that such facilities would enable Reclamation to meet its 
obligations under section 7(a)(2) of the Endangered Species Act of 1973 
(16 U.S.C. 1536(a)(2)) regarding the construction and continued 
operation and maintenance of all Federal reclamation projects located 
in the Columbia River Basin, excluding the Federal reclamation projects 
located in the Snake River Basin.
    (b) Prohibition of Acquisition of Land for Habitat Improvements.--
Notwithstanding subsection (a), nothing in this Act authorizes the 
acquisition of land for habitat improvements.

SEC. 3. LIMITATIONS.

    (a) Written Agreement.--The Secretary may undertake the 
construction of, or provide financial assistance covering the cost to 
the non-Federal parties to construct, fish passage and screening 
facilities at non-Federal water diversion and storage projects or 
habitat improvements located anywhere in the Columbia River Basin only 
after entering into a voluntary, written agreement with the non- 
Federal party or parties who own, operate, or maintain the project, or 
any associated lands involved.
    (b) Federal Share.--The Federal share of the total costs of 
constructing the fish passage and screening facility or habitat 
improvements shall be not more than 75 percent.
    (c) Non-Federal Share.--
            (1) Except as provided in paragraph (4), a written 
        agreement entered into under subsection (a) shall provide that 
        the non-Federal party agrees to pay the non-Federal share of 
        the total costs of constructing the fish passage and screening 
        facility or habitat improvements.
            (2) The non-Federal share may be provided in the form of 
        cash or in-kind services.
            (3) The Secretary shall--
                    (A) require the non-Federal party to provide 
                appropriate documentation of any in-kind services 
                provided; and
                    (B) determine the value of the in-kind services.
            (4) The requirements of this subsection shall not apply to 
        Indian tribes.
    (d) Grant and Cooperative Agreements.--Any financial assistance 
made available pursuant to this Act shall be provided through grant 
agreements or cooperative agreements entered into pursuant to and in 
compliance with chapter 63 of title 31, United States Code.
    (e) Terms and Conditions.--The Secretary may require such terms and 
conditions as will ensure performance by the non-Federal party, protect 
the Federal investment in fish passage and screening facilities or 
habitat improvements, define the obligations of the Secretary and the 
non-Federal party, and ensure compliance with this Act and all other 
applicable Federal, State, and local laws.
    (f) Rights and Duties of Non-Federal Parties.--All right and title 
to, and interest in, any fish passage and screening facilities 
constructed or funded pursuant to the authority of this Act shall be 
held by the non-Federal party or parties who own, operate, and maintain 
the non-Federal water diversion and storage project, and any associated 
lands, involved. The operation, maintenance, and replacement of such 
facilities shall be the sole responsibility of such party or parties 
and shall not be a project cost assignable to any Federal reclamation 
project.

SEC. 4. OTHER REQUIREMENTS.

    (a) Permits.--The Secretary may assist a non-Federal party who 
owns, operates, or maintains a non-Federal water diversion or storage 
project, and any associated lands, to obtain and comply with any 
required State, local, or tribal permits.
    (b) Federal Law.--In carrying out this Act, the Secretary shall be 
subject to all Federal laws applicable to activities associated with 
the construction of a fish passage and screening facility or habitat 
improvements.
    (c) State Water Law.--
            (1) In carrying out this Act, the Secretary shall comply 
        with any applicable State water laws.
            (2) Nothing in this Act affects any water or water-related 
        right of a State, an Indian tribe, or any other entity or 
        person.
    (d) Required Coordination.--The Secretary shall coordinate with the 
Northwest Power and Conservation Council; appropriate agencies of the 
States of Idaho, Oregon, and Washington; and appropriate federally 
recognized Indian tribes in carrying out the program authorized by this 
Act.

SEC. 5. INAPPLICABILITY OF FEDERAL RECLAMATION LAW.

    (a) In General.--The Reclamation Act of 1902 (32 Stat. 388), and 
Acts amendatory thereof and supplementary thereto, shall not apply to 
the non-Federal water projects at which the fish passage and screening 
facilities authorized by this Act are located, nor to the lands which 
such projects irrigate.
    (b) Nonreimbursable and Nonreturnable Expenditures.--
Notwithstanding any provision of law to the contrary, the expenditures 
made by the Secretary pursuant to this Act shall not be a project cost 
assignable to any Federal reclamation project (either as a construction 
cost or as an operation and maintenance cost) and shall be non-
reimbursable and non-returnable to the United States Treasury.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such amounts as are 
necessary for the purposes of this Act.




                                                       Calendar No. 466

108th CONGRESS

  2d Session

                                S. 1307

                          [Report No. 108-249]

_______________________________________________________________________

                                 A BILL

 To authorize the Secretary of the Interior, acting through the Bureau 
  of Reclamation, to assist in the implementation of fish passage and 
   screening facilities at non-Federal water projects, and for other 
                               purposes.

_______________________________________________________________________

                             March 29, 2004

                       Reported with an amendment