[Congressional Record Volume 150, Number 110 (Wednesday, September 15, 2004)]
[Senate]
[Pages S9323-S9325]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




IMPLEMENTATION OF FISH PASSAGE AND SCREENING FACILITIES AT NON-FEDERAL 
                             WATER PROJECTS

  The Senate proceeded to consider the bill (S. 1307) 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, which had been 
reported from the Committee on Energy and Natural Resources, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

       (Strike the part shown in black brackets and insert the 
     part shown in italic.)

                                S. 1307

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

     [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

[[Page S9324]]

     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;
       [(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; and
       [(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.

     [SEC. 2. AUTHORIZATION.

       [(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.

     [SEC. 3. LIMITATIONS.

       [(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.
       [(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).
       [(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.
       [(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.
       [(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.

     [SEC. 4. OTHER REQUIREMENTS.

       [(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.
       [(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.
       [(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.

     [SEC. 5. INAPPLICABILITY OF FEDERAL RECLAMATION LAW.

       [(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.
       [(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.

     [SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

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

     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

[[Page S9325]]

     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.
  The committee amendment in the nature of a substitute was agreed to.
  The bill (S. 1307), as amended, was read the third time and passed.

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