II Calendar No. 44 109th CONGRESS 1st Session S. 232 [Report No. 109–31] IN THE SENATE OF THE UNITED STATES February 1, 2005 Mr. Smith introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources March 10, 2005 Reported by Mr. Domenici, without amendment 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.

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.

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.

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.

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.

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.

6.

Authorization of appropriations

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

March 10, 2005 Reported without amendment