[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1540 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1540

    To authorize the Secretary of the Army and the Secretary of the 
    Interior to establish a program to improve water management and 
  contribute to the recovery of endangered species in the Middle Rio 
              Grande, New Mexico, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 28, 2005

 Mr. Domenici (for himself and Mr. Bingaman) introduced the following 
bill; which was read twice and referred to the Committee on Environment 
                            and Public Works

_______________________________________________________________________

                                 A BILL


 
    To authorize the Secretary of the Army and the Secretary of the 
    Interior to establish a program to improve water management and 
  contribute to the recovery of endangered species in the Middle Rio 
              Grande, New Mexico, 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. SHORT TITLE.

    This Act may be cited as the ``Middle Rio Grande Endangered Species 
Collaborative Program Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Collaborative program.--The term ``Collaborative 
        Program'' means the Middle Rio Grande Endangered Species 
        Collaborative Program established under section 3(a).
            (2) Executive committee.--The term ``Executive Committee'' 
        means the Executive Committee established under section 4(c).
            (3) Interests in land and water.--The term ``interests in 
        land and water'' includes purchases, leases, easements, and 
        agreements to provide water storage, land, or water that are 
        obtained from willing sellers, lessors, or contributors in 
        compliance with applicable Federal, State, or tribal laws.
            (4) Middle rio grande.--
                    (A) In general.--The term ``Middle Rio Grande'' 
                means the headwaters of the Rio Chama and the Rio 
                Grande, including all tributaries, from the State line 
                between Colorado and New Mexico downstream to the 
                elevation corresponding with the spillway crest of 
                Elephant Butte Dam at 4,457.3 feet mean sea level.
                    (B) Exclusion.--The term ``Middle Rio Grande'' 
                excludes the land area reserved for the full pool of 
                the Elephant Butte Reservoir.
            (5) Middle rio grande conservancy district.--The term 
        ``Middle Rio Grande Conservancy District'' means the political 
        subdivision of the State of that name, created in 1925.
            (6) Project.--
                    (A) In general.--The term ``project'' means a 
                scientific or management study, a planning, design, 
                permitting, construction, operations, maintenance, or 
                replacement activity, or the acquisition of interests 
                in land or water.
                    (B) Inclusions.--The term ``project'' includes--
                            (i) a project begun but not completed by 
                        the Endangered Species Collaborative Program 
                        before the date of enactment of this Act; and
                            (ii) a project recommended by the Executive 
                        Committee after the date of enactment of this 
                        Act that carries out the purposes described in 
                        section 3(b).
            (7) Rio grande compact.--The term ``Rio Grande Compact'' 
        means the Rio Grande Compact--
                    (A) for which Congress provided consent under the 
                Act of May 31, 1939 (53 Stat. 785, chapter 155); and
                    (B) that was ratified by the States of Colorado, 
                New Mexico, and Texas.
            (8) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army, acting through the Chief of Engineers.
            (9) Signatory member.--The term ``signatory member'' means 
        any Federal, State, or municipal agency, tribe, or public or 
        private organization that has signed the memorandum of 
        agreement described in section 4(c)(1)(C).
            (10) Silvery minnow.--The term ``silvery minnow'' means the 
        species Hybognathus amarus, commonly known as the Rio Grande 
        silvery minnow, a fish listed as an endangered species, as 
        described in the notice entitled ``Final Rule to List the Rio 
        Grande Silvery Minnow as an Endangered Species'' (59 Fed. Reg. 
        36988 (July 20, 1994)).
            (11) State.--The term ``State'' means the State of New 
        Mexico.
            (12) Tribe.--The term ``tribe'' means an Indian pueblo or 
        tribe that--
                    (A) occupies land in the Middle Rio Grande; and
                    (B) is included on the list of federally recognized 
                tribes published by the Secretary of the Interior in 
                accordance with section 104 of the Federally Recognized 
                Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
            (13) Willow flycatcher.--The term ``willow flycatcher'' 
        means the species Empidonax traillii extimus, commonly known as 
        the southwestern willow flycatcher, a migratory bird listed as 
        an endangered species, as described in the notice entitled 
        ``Final Rule Determining Endangered Status for the Southwestern 
        Willow Flycatcher'' (60 Fed. Reg. 10694 (February 27, 1995)).

SEC. 3. COLLABORATIVE PROGRAM.

    (a) Establishment.--The Secretary, in collaboration with the 
Secretary of the Interior, shall establish the Middle Rio Grande 
Endangered Species Collaborative Program in accordance with section 4.
    (b) Purposes.--The purposes of the Collaborative Program shall be--
            (1) to carry out a long-term plan, including projects to 
        protect, and promote recovery of, the silvery minnow and willow 
        flycatcher in the Middle Rio Grande;
            (2) to ensure compliance with the Endangered Species Act of 
        1973 (16 U.S.C. 1531 et seq.) while maintaining water use in 
        the Middle Rio Grande in compliance with applicable law;
            (3) to support improved water management;
            (4) to allow continued water development;
            (5) to benefit overall ecological integrity;
            (6) to promote cooperation and collaboration in 
        implementation of protection and recovery activities between 
        Federal and non-Federal entities;
            (7) to coordinate Federal actions that promote protection 
        and recovery of the silvery minnow and willow flycatcher; and
            (8) to establish a scientific basis for implementation of 
        activities through recovery plans to ensure protection and 
        recovery of the silvery minnow and willow flycatcher.

SEC. 4. COLLABORATIVE PROGRAM STRUCTURE.

    (a) Repeal.--Section 209 of the Energy and Water Development 
Appropriations Act, 2004 (Public Law 108-137; 117 Stat. 1850) is 
repealed.
    (b) Establishment.--The Collaborative Program shall consist of an 
Executive Committee, a Program Implementation Team, and working groups.
    (c) Executive Committee.--
            (1) In general.--The Secretary, in collaboration with the 
        Secretary of the Interior shall--
                    (A) not later than 180 days after the date of 
                enactment of this Act, establish an Executive Committee 
                consisting of Federal and non-Federal entities 
                described in paragraph (2) to--
                            (i) provide guidance to the Program 
                        Implementation Team to develop and approve a 
                        long-term plan to carry out the purposes of the 
                        Collaborative Program;
                            (ii) coordinate Collaborative Program 
                        projects for the recovery of the silvery minnow 
                        and the willow flycatcher with other Federal 
                        and non-Federal activities in the Middle Rio 
                        Grande to achieve the greatest effect and limit 
                        unnecessary duplication of efforts to the 
                        maximum extent practicable;
                            (iii) create, assign, and oversee tasks of 
                        the Program Implementation Team and working 
                        groups as necessary to implement a long-term 
                        plan and otherwise accomplish the purposes of 
                        the Collaborative Program;
                            (iv) develop multiyear budget priorities 
                        and present funding requests to the Corps of 
                        Engineers, the Bureau of Reclamation, the 
                        United States Fish and Wildlife Service, other 
                        Federal agencies, and non-Federal entities; and
                            (v) review work products undertaken by the 
                        Collaborative Program, including development of 
                        plans, budgets, reports, and requests for 
                        proposals;
                    (B) consider decisions made by \3/4 \ of a quorum 
                as the recommendation to be carried out under the 
                Collaborative Program;
                    (C) develop, consistent with this Act, a memorandum 
                of agreement describing--
                            (i) the goals of the Collaborative Program;
                            (ii) the responsibilities of the 
                        participants to contribute to the success of 
                        the Collaborative Program; and
                            (iii) the administrative rules, bylaws, and 
                        agreements governing Collaborative Program 
                        participation; and
                    (D) in cooperation with the members of the 
                Executive Committee, develop bylaws governing the 
                operations of the Executive Committee.
            (2) Membership.--
                    (A) In general.--Subject to subparagraph (B), the 
                Executive Committee shall be composed of--
                            (i) 1 permanent voting member representing 
                        the Bureau of Reclamation, appointed by the 
                        Secretary of the Interior;
                            (ii) 1 permanent voting member representing 
                        the United States Fish and Wildlife Service, 
                        appointed by the Secretary of the Interior;
                            (iii) 1 permanent voting member 
                        representing the Corps of Engineers, appointed 
                        by the Secretary;
                            (iv) upon invitation by the Secretary, 
                        other voting members who have signed the 
                        memorandum of agreement described in paragraph 
                        (1)(C), representing any of--
                                    (I) the State of New Mexico 
                                Interstate Stream Commission;
                                    (II) the State of New Mexico 
                                Department of Game and Fish;
                                    (III) the New Mexico Attorney 
                                General;
                                    (IV) the Pueblo of Santo Domingo;
                                    (V) the Pueblo of Sandia;
                                    (VI) the Pueblo of Isleta;
                                    (VII) the Pueblo of Santa Ana;
                                    (VIII) the Middle Rio Grande 
                                Conservancy District;
                                    (IX) the Albuquerque-Bernalillo 
                                County Water Authority;
                                    (X) an organization that represents 
                                a significant portion of the 
                                environmental community; and
                                    (XI) an organization that 
                                represents a significant portion of the 
                                farming community;
                            (v) the non-Federal cochairperson elected 
                        under paragraph (4); and
                            (vi) upon unanimous recommendation of the 
                        existing members, members representing any 
                        additional organizations that sign the 
                        memorandum of agreement described in paragraph 
                        (1)(C).
                    (B) Membership cap.--The total membership of the 
                Executive Committee shall not exceed 20 members.
                    (C) Quorum.--
                            (i) In general.--Except as provided in 
                        clause (ii), \2/3\ of the members of the 
                        Executive Committee shall constitute a quorum.
                            (ii) Exception.--For purposes of 
                        subparagraphs (A) and (C) of paragraph (4), \2/
                        3\ of the non-Federal members of the Executive 
                        Committee shall constitute a quorum.
            (3) Federal cochairperson.--
                    (A) In general.--The Secretary of the Interior 
                shall select a Federal Cochairperson from the 
                Department of the Interior who shall--
                            (i) be a nonvoting member of the Executive 
                        Committee;
                            (ii) convene the Executive Committee;
                            (iii) develop committee agendas;
                            (iv) call meetings;
                            (v) schedule votes and other decisionmaking 
                        processes; and
                            (vi) hold the Program Implementation Team 
                        accountable for assignments received from the 
                        Executive Committee.
                    (B) Removal.--The Federal Cochairperson may be 
                replaced by the Secretary on a vote of no-confidence by 
                \3/4 \ of a quorum.
            (4) Non-federal cochairperson.--
                    (A) In general.--A non-Federal Chairperson of the 
                Executive Committee shall be elected on approval by \3/
                4 \ of a quorum.
                    (B) Duties.--The non-Federal Chairperson shall--
                            (i) be a voting member of the Executive 
                        Committee;
                            (ii) establish the Executive Committee 
                        agenda jointly with the Federal Cochairperson; 
                        and
                            (iii) lead meetings in the absence of the 
                        Federal Cochairperson.
                    (C) Removal.--
                            (i) In general.--The non-Federal 
                        Cochairperson may be removed by the Secretary 
                        on a vote of no-confidence by \3/4 \ of a 
                        quorum.
                            (ii) Vacancy.--If the non-Federal 
                        Chairperson is removed under clause (i), the 
                        vacancy shall be filled in accordance with 
                        subparagraph (A).
    (d) Program Implementation Team.--
            (1) In general.--The Secretary shall establish a Program 
        Implementation Team--
                    (A) administered by a program manager from the 
                Corps of Engineers; and
                    (B) supported by 1 representative of each entity 
                with membership on the Executive Committee that elects 
                to provide a representative.
            (2) Additional staff.--To support the goals of the 
        Collaborative Program, the Secretary of the Interior shall 
        provide staff for the Program Implementation Team from--
                    (A) the Bureau of Reclamation;
                    (B) the Bureau of Indian Affairs;
                    (C) the United States Fish and Wildlife Service; or
                    (D) any other appropriate agency of the Department 
                of the Interior.
            (3) Duties.--Under the direction of the Executive 
        Committee, the Program Implementation Team shall--
                    (A) provide administrative support for all 
                Collaborative Program operations;
                    (B) not later than 1 year after the date of 
                enactment of this Act, prepare a long-term plan to 
                carry out the purposes of the Collaborative Program;
                    (C) consistent with the long-term plan, prepare 
                annual revisions, annual work plans, budget requests, 
                and activity and fiscal reports;
                    (D) provide information to the public concerning 
                activities of the Collaborative Program and undertake 
                community outreach;
                    (E) collaborate with other efforts relating to the 
                protection and recovery of the silvery minnow and 
                willow flycatcher carried out under other Federal 
                programs and non-Federal programs, including--
                            (i) silvery minnow and willow flycatcher 
                        recovery teams under the direction of the 
                        United States Fish and Wildlife Service;
                            (ii) Bosque and ecosystem recovery programs 
                        under the United States Fish and Wildlife 
                        Service and Corps of Engineers; and
                            (iii) other related programs;
                    (F) administer project proposal processes;
                    (G) administer contracts and grants, except for 
                those contracts and grants assigned to the Bureau of 
                Reclamation;
                    (H) ensure that all activities undertaken by the 
                Collaborative Program comply with applicable laws; and
                    (I) undertake such other duties as are assigned by 
                the Executive Committee and necessary to carry out the 
                Collaborative Program.
    (e) Working Groups.--
            (1) In general.--The Executive Committee may create working 
        groups to--
                    (A) provide advice to the Executive Committee and 
                the Program Implementation Team; and
                    (B) implement tasks consistent with the purposes 
                described in section 3(b).
            (2) Membership.--Working groups established under paragraph 
        (1) may consist of--
                    (A) members of the Program Implementation Team; and
                    (B) individuals appointed by, and under the 
                direction of, the Program Implementation Team, 
                including--
                            (i) representatives appointed by the 
                        Executive Committee;
                            (ii) signatory members; or
                            (iii) individuals contracted by the Program 
                        Implementation Team.

SEC. 5. COLLABORATIVE PROGRAM ACTIVITIES.

    (a) In General.--The Secretary and the Secretary of the Interior 
may--
            (1) enter into any grants, contracts, cooperative 
        agreements, interagency agreements, or other agreements that 
        the Secretary and the Secretary of the Interior determine to be 
        necessary to carry out the Collaborative Program, including 
        interagency agreements to transfer funds between agencies 
        within the jurisdiction of the Secretary and the Secretary of 
        the Interior; and
            (2) accept or provide grants to carry out the Collaborative 
        Program.
    (b) Responsibilities.--In carrying out the purposes of the 
Collaborative Program--
            (1) the Commissioner of Reclamation may--
                    (A) carry out flow requirements to comply with the 
                Biological Opinion described in section 205(b) of the 
                Energy and Water Development Appropriations Act, 2005 
                (Public Law 108-447; 118 Stat. 2949) or any 
                modifications to the Biological Opinion and other 
                projects relating to water management, including--
                            (i) acquiring interests in land and water 
                        to meet minimum flow requirements;
                            (ii) monitoring and gaging flows;
                            (iii) pumping from the Low Flow Conveyance 
                        Channel and other drains and channels to 
                        support silvery minnow and willow flycatcher 
                        habitat; and
                            (iv) improving monitoring and gaging;
                    (B) consult with the signatory members regarding 
                opportunities and methods to accomplish the 
                responsibilities;
                    (C) coordinate implementation of all other 
                activities carried out within the Middle Rio Grande 
                under the jurisdiction of the Bureau of Reclamation 
                with the activities of the Collaborative Program to 
                achieve the purposes of the Collaborative Program; and
                    (D) construct fish passages at San Acacia Diversion 
                Dam and at Isleta Diversion Dam;
            (2) the Secretary of the Army--
                    (A) may carry out and fund additional projects not 
                designated to the Commissioner of Reclamation under 
                paragraph (1), including--
                            (i) actions to induce overbank flooding and 
                        creation of backwaters;
                            (ii) salvaging eggs;
                            (iii) improving monitoring and gaging;
                            (iv) performing habitat and ecosystem 
                        restoration;
                            (v) regeneration of native vegetation and 
                        monitoring of associated water depletions;
                            (vi) reconstructing a new San Marcial 
                        Railroad bridge and realignment of the river 
                        channel;
                            (vii) developing ways to--
                                    (I) increase sediment transport 
                                through Jemez Canyon Dam, Galisteo Dam, 
                                and Cochiti Lake; and
                                    (II) address issues of contaminated 
                                sediment;
                            (viii) preventing salt cedar encroachment 
                        in Angostura, Isleta and San Acacia reaches;
                            (ix) implementing captive propagation of 
                        silvery minnow, including expansion of 
                        facilities;
                            (x) creating at least 2 new naturalized 
                        refugia, 1 of which shall be carried out in 
                        partnership with the Bureau of Reclamation, 
                        United States Fish and Wildlife Service, and 
                        Middle Rio Grande Conservancy District without 
                        direct oversight by the Collaborative Program, 
                        under the Silvery Minnow Off-Channel 
                        Sanctuaries Program as authorized under section 
                        6014 of the Emergency Supplemental 
                        Appropriations Act for Defense, the Global War 
                        on Terror, and Tsunami Relief, 2005 (Public Law 
                        109-13; 119 Stat. 283);
                            (xi) monitoring silvery minnow protection 
                        and recovery efforts by conducting surveys of 
                        populations and habitat above Cochiti Lake;
                            (xii) developing comprehensive water 
                        quality assessments and managing changes in 
                        water quality;
                            (xiii) conducting studies and research 
                        necessary to define the needs of listed 
                        species; and
                            (xiv) monitoring the effects of activities 
                        on listed species;
                    (B) shall implement the decisions of the Executive 
                Committee in performing the activities described in 
                subparagraph (A); and
                    (C) shall coordinate implementation of all other 
                activities carried out within the Middle Rio Grande by 
                the Corps of Engineers with the activities of the 
                Collaborative Program in order to achieve the purposes 
                of the Collaborative Program.
    (c) Limitations.--
            (1) Acquisition of land or water.--In carrying out this 
        Act, the Secretary or the Secretary of the Interior may only 
        acquire interests in land and water.
            (2) Water rights.--Nothing in this Act preempts or affects 
        State water law or an interstate compact governing water.
            (3) Compliance.--All actions carried out in accordance with 
        this Act shall be in compliance with applicable State, Federal, 
        or tribal law.
            (4) Rio grande compact.--No action carried out under this 
        Act shall impair the ability of the State to meet the 
        obligations of the State under the Rio Grande compact.
            (5) State law.--The Secretary and the Secretary of the 
        Interior shall carry out activities under the Collaborative 
        Program consistent with State law.
            (6) Consultation.--
                    (A) In general.--Consultations between governments 
                under this Act shall be carried out between the 
                Secretary or the Secretary of the Interior and tribes 
                prior to initiating actions that would impact tribal 
                land or water rights.
                    (B) Consent requirement.--No action involving 
                access to, or use of, pueblo or tribal land may be 
                carried out without prior written consent of the 
                affected pueblo or Indian tribe.
            (7) Collaboration.--In carrying out this Act, the Secretary 
        and the Secretary of Interior may collaborate with or enter 
        into contracts, cooperative agreements, interagency agreements, 
        or other agreements with, or accept or provide grants to, 
        tribes that--
                    (A) are signatory members; but
                    (B) are not represented on the Executive Committee.
            (8) No effect on certain authority.--Nothing in this Act 
        diminishes the authority, sovereignty, or rights of any person, 
        organization, tribe, or other governmental entity.
            (9) No effect on certain duties.--
                    (A) In general.--Nothing in this Act diminishes or 
                impairs--
                            (i) the trust relationship or 
                        responsibility of the Federal Government to any 
                        tribe;
                            (ii) the obligation of the Federal 
                        Government to consult with the tribes on a 
                        government-to-government basis; or
                            (iii) the ability of the Federal Government 
                        to fund activities for the benefit of the 
                        tribes.
                    (B) Funding.--Nothing in this Act restricts the 
                Secretary or the Secretary of the Interior from funding 
                activities in accordance with the Indian trust 
                responsibility of the Federal Government.
            (10) No effect on reservoir operations.--While this Act 
        provides additional authorization for the Secretary and the 
        Secretary of the Interior, nothing expands the discretion of 
        the Secretary or the Secretary of the Interior with respect to 
        operating reservoir facilities under the jurisdiction of the 
        Secretary or the Secretary of the Interior in the Middle Rio 
        Grande.

SEC. 6. REPORTING.

    Not later than 1 year after the date of enactment of this Act, and 
every 2 years thereafter, the Secretary and the Secretary of the 
Interior shall submit to the Committee on Environment and Public Works 
and the Committee on Energy and Natural Resources of the Senate and the 
Committee on Resources of the House of Representatives a report that--
            (1) describes expenditure of appropriated funds and cost-
        share contributions;
            (2) describes activities carried out under this Act; and
            (3) describes compliance with the purposes of this Act.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

    (a) Authorization of Appropriations.--
            (1) In general.--There is authorized to be appropriated to 
        the Secretary and the Secretary of the Interior such sums as 
        are necessary to carry out this Act for each of fiscal years 
        2006 through 2015.
            (2) Nonreiumbursable.--Amounts made available pursuant to 
        paragraph (1) shall be considered nonreimbursable Federal 
        expenditures.
    (b) Cost Allocation.--
            (1) Activities at full federal expense.--
                    (A) Water acquisition.--Water acquisition and the 
                cost of administration for water acquisition and water 
                management by the Bureau of Reclamation described in 
                section 5(b)(1) shall be carried out at full Federal 
                expense.
                    (B) Administration.--Administration of the 
                Collaborative Program, as described in section 4(d), 
                including the participation of Federal agencies in the 
                Program Implementation Team, shall be carried out at 
                full Federal expense.
            (2) Cost-share.--
                    (A) In general.--Subject to subparagraph (B), all 
                projects or activities of the Collaborative Program not 
                described in paragraph (1) that are carried out by the 
                Secretary or the Secretary of the Interior shall 
                require a non-Federal cost-share of 25 percent.
                    (B) Limitation.--
                            (i) In general.--The total non-Federal 
                        share required under subparagraph (A) for all 
                        projects during the period of fiscal years 2006 
                        through 2015 shall be not more than 
                        $30,000,000.
                            (ii) Federal expense.--On satisfaction of 
                        the total non-Federal share described in clause 
                        (i)--
                                    (I) no further non-Federal share 
                                shall be required; and
                                    (II) all projects and activities 
                                shall be carried out at full Federal 
                                expense.
                    (C) Contributions.--The cost-share under 
                subparagraph (A) may be provided as--
                            (i) in-kind contributions, including 
                        participation on the Program Implementation 
                        Team or in working groups, the value of which 
                        shall be determined by Secretary; or
                            (ii) direct cash contributions.
                    (D) Programmatic basis.--The amount of the Federal 
                and non-Federal cost-shares shall be determined on--
                            (i) a programmatic, rather than project-by-
                        project, basis; and
                            (ii) a 3-year interval with excess non-
                        Federal cost-share being credited to subsequent 
                        accounting periods.
    (c) Administrative Costs.--Not more than 15 percent of amounts made 
available under subsection (a) shall be used to pay the administrative 
costs of carrying out the Program Implementation Team established under 
section 4(d).
                                 <all>