[Congressional Record Volume 157, Number 172 (Thursday, November 10, 2011)]
[Senate]
[Pages S7377-S7382]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MERKLEY (for himself and Mrs. Boxer):
  S. 1851. A bill to authorize the restoration of the Klamath Basin and 
the settlement of the hydroelectric licensing of the Klamath 
Hydroelectric Project in accordance with the Klamath Basin Restoration 
Agreement and the Klamath hydroelectric Settlement

[[Page S7378]]

Agreement in the public interest and the interest of the United States, 
and for other purposes; to the Committee on Energy and Natural 
Resources.
  Mr. MERKLEY. Mr. President, I rise today to address the long history 
of water disputes in the Klamath Basin and commend the work of the 
community in coming together to begin a new, collaborative era of water 
management in the region.
  When I was first elected to the U.S. Senate, one of my first trips 
across Oregon included a visit to the Klamath Basin to gather 
information about the history of the water wars in the region and meet 
with the stakeholders who were working on a solution.
  On my way down to the Basin I was extremely skeptical that 
traditional rivals could reach agreement on a written management plan. 
Only a few years earlier, the region was embroiled in protests and 
civil disobedience over sizeable fish kills and limited supplies of 
water for irrigation. The generational battles over water had deepened 
divides, often making it hard for parties to be in a room together, let 
alone work together.
  When I arrived in Klamath Falls, therefore, I was deeply surprised to 
find farmers, ranchers, fishermen, Tribal leaders and conservationists 
working together on a comprehensive and collaborative plan that would 
end the ongoing water wars of the region, improve the local economy and 
create a stronger environment for the future. They told me they were 
tired of the unproductive battles of the past and of the massive 
amounts they were spending on lawyers rather than solutions. They 
thought they had some chance of finding a better path forward. This was 
impressive. I thought then that if they managed to get the Klamath 
Restoration Agreements completed and signed by all the parties, I would 
certainly assist them with the necessary federal legislation.
  That legislation is now the Klamath Basin Economic Restoration Act of 
2011, which I am introducing today. This bill implements both the 
Klamath Basin Restoration Agreement and Klamath Hydroelectric 
Settlement Agreement and moves the region forward. These agreements 
would provide a more stable supply of irrigation water to farmers and 
ranchers and would improve in-river water flows for endangered fish and 
the fishermen who depend on them. The agreements would enhance the 
national wildlife refuges that are one of the most important migratory 
bird habitats in the country. In addition, the agreement would, by 
removing four dams, turn the Klamath into a free-flowing river once 
again, opening miles of habitat to spawning salmon. The agreement also 
restores a sector of the Klamath Tribe forest and resolves a 
challenging fish passage issue for Pacific Power.
  This agreement would create a lot of jobs. A recent analysis 
estimates that the agreement would create 4,000 jobs in construction 
and agriculture. It also estimates that with the restoration of 
critical salmon and steelhead habitat the commercial harvest of Chinook 
salmon would increase by 80 percent.
  The KBRA and KHSA agreements are the result of several years of 
intense negotiation and compromise. They are inherently complicated. No 
party obtained all they desired and not everyone is satisfied that 
these agreements contain the best possible outcomes.
  But what is absolutely clear is that it is an extraordinary 
accomplishment for the Klamath stakeholders to set aside their historic 
differences and work out this plan. They say in the West that, 
``Whiskey, that's for drinking. Water, that's for fighting.'' But 
continuous fighting sometimes reaches the point where little is 
accomplished. The Klamath stakeholders are painting a different vision, 
in which the interests of all can be served.
  The agreement is full of the bipartisan, solution-oriented spirit 
that can take the region forward. It is a spirit that we could use a 
lot more of in Washington, DC, and across the nation. I am proud to 
partner with the Klamath community on the future of the region.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1851

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Klamath 
     Basin Economic Restoration Act of 2011''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

                     TITLE I--RESTORATION AGREEMENT

Sec. 101. Approval and execution of Restoration Agreement.
Sec. 102. Agreements and non-Federal funds.
Sec. 103. Rights protected.
Sec. 104. Funding.
Sec. 105. Klamath Reclamation Project.
Sec. 106. Tribal commitments and actions.
Sec. 107. Judicial review.
Sec. 108. Miscellaneous.

                   TITLE II--HYDROELECTRIC SETTLEMENT

Sec. 201. Approval and execution of Hydroelectric Settlement.
Sec. 202. Secretarial determination.
Sec. 203. Facilities transfer and removal.
Sec. 204. Transfer of Keno Development.
Sec. 205. Liability protection.
Sec. 206. Licenses.
Sec. 207. Miscellaneous.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Commission.--The term ``Commission'' means the Federal 
     Energy Regulatory Commission.
       (2) Dam removal entity.--The term ``Dam Removal Entity'' 
     means the entity designated by the Secretary pursuant to 
     section 202(c).
       (3) Department.--The term ``Department'' means the 
     Department of the Interior.
       (4) Definite plan.--The term ``definite plan'' has the 
     meaning given the term in section 1.4 of the Hydroelectric 
     Settlement.
       (5) Detailed plan.--The term ``detailed plan'' has the 
     meaning given the term in section 1.4 of the Hydroelectric 
     Settlement.
       (6) Facility.--The term ``facility'' means any of the 
     following hydropower developments (including appurtenant 
     works) licensed to PacifiCorp under the Federal Power Act (16 
     U.S.C. 791a et seq.) as Project No. 2082:
       (A) Iron Gate Development.
       (B) Copco 1 Development.
       (C) Copco 2 Development.
       (D) J.C. Boyle Development.
       (7) Facilities removal.--The term ``facilities removal'' 
     means--
       (A) physical removal of all or part of each facility to 
     achieve, at a minimum, a free-flowing condition and 
     volitional fish passage;
       (B) site remediation and restoration, including restoration 
     of previously inundated land;
       (C) measures to avoid or minimize adverse downstream 
     impacts; and
       (D) all associated permitting for the actions described in 
     this paragraph.
       (8) Federally recognized tribe.--The term ``federally 
     recognized tribe'' means an Indian tribe listed as federally 
     recognized in--
       (A) the Bureau of Indian Affairs publication entitled 
     ``Indian Entities Recognized and Eligible to Receive Services 
     from the United States Bureau of Indian Affairs'' (74 Fed. 
     Reg. 40218 (Aug. 11, 2009)); or
       (B) any list published in accordance with section 104 of 
     the Federally Recognized Indian Tribe List Act of 1994 (25 
     U.S.C. 479a-1).
       (9) Hydroelectric settlement.--
       (A) In general.--The term ``Hydroelectric Settlement'' 
     means the agreement entitled ``Klamath Hydroelectric 
     Settlement Agreement,'' dated February 18, 2010, between--
       (i) the Department;
       (ii) the Department of Commerce;
       (iii) the State of California;
       (iv) the State of Oregon;
       (v) PacifiCorp; and
       (vi) other parties.
       (B) Inclusions.--The term ``Hydroelectric Settlement'' 
     includes any amendments to the Agreement described in 
     subparagraph (A)--
       (i) approved by the parties before the date of enactment of 
     this Act; or
       (ii) approved pursuant to section 201(b)(2).
       (10) Keno development.--The term ``Keno Development'' means 
     the Keno regulating facility within the jurisdictional 
     project boundary of FERC Project No. 2082.
       (11) Klamath basin.--
       (A) In general.--The term ``Klamath Basin'' means the land 
     tributary to the Klamath River in the States.
       (B) Inclusions.--The term ``Klamath Basin'' includes the 
     Lost River and Tule Lake Basins.
       (12) Klamath project water users.--The term ``Klamath 
     Project Water Users'' means--
       (A) the Tulelake Irrigation District;
       (B) the Klamath Irrigation District;
       (C) the Klamath Drainage District;
       (D) the Klamath Basin Improvement District;
       (E) the Ady District Improvement Company;
       (F) the Enterprise Irrigation District;
       (G) the Malin Irrigation District;
       (H) the Midland District Improvement District;
       (I) the Pioneer District Improvement Company;
       (J) the Shasta View Irrigation District;
       (K) the Sunnyside Irrigation District;

[[Page S7379]]

       (L) Don Johnston & Son;
       (M) Bradley S. Luscombe;
       (N) Randy Walthall;
       (O) the Inter-County Title Company;
       (P) the Reames Golf and Country Club;
       (Q) the Winema Hunting Lodge, Inc.;
       (R) Van Brimmer Ditch Company;
       (S) Plevna District Improvement Company; and
       (T) Collins Products, LLC.
       (13) Net revenues.--
       (A) In general.--The term ``net revenues'' has the meaning 
     given the term ``net lease revenues'' in Article 1(e) of 
     Contract No. 14-06-200-5954 between Tulelake Irrigation 
     District and the United States.
       (B) Inclusions.--The term ``net revenues'' includes 
     revenues from the leasing of land in--
       (i) the Tule Lake National Wildlife Refuge lying within the 
     boundaries of the Tulelake Irrigation District; and
       (ii) the Lower Klamath National Wildlife Refuge lying 
     within the boundaries of the Klamath Drainage District.
       (14) Non-federal parties.--The term ``non-Federal Parties'' 
     means each of the signatories to the Restoration Agreement 
     other than the Secretaries.
       (15) Oregon klamath basin adjudication.--The term ``Oregon 
     Klamath Basin adjudication'' means the proceeding to 
     determine water rights pursuant to chapter 539 of Oregon 
     Revised Statutes entitled ``In the matter of the 
     determination of the relative rights of the waters of the 
     Klamath River, a tributary of the Pacific Ocean.''
       (16) Pacificorp.--The term ``PacifiCorp'' means the owner 
     and licensee of the Klamath Hydroelectric Project, FERC 
     Project No. 2082.
       (17) Party.--The term ``Party'' means each of the 
     signatories to the Restoration Agreement, including the 
     Secretaries.
       (18) Party tribes.--The term ``Party Tribes'' means--
       (A) the Yurok Tribe;
       (B) the Karuk Tribe; and
       (C) the Klamath Tribes.
       (19) Restoration agreement.--
       (A) Restoration agreement.--The term ``Restoration 
     Agreement'' means the Agreement entitled ``Klamath Basin 
     Restoration Agreement for the Sustainability of Public and 
     Trust Resources and Affected Communities'' dated February 18, 
     2010, which shall be on file and available for public 
     inspection in the appropriate offices of the Secretaries.
       (B) Inclusions.--The term ``Restoration Agreement'' 
     includes any amendments to the Agreement described in 
     subparagraph (A)--
       (i) approved by the parties before the date of enactment of 
     this Act; or
       (ii) approved pursuant to section 101(b)(2).
       (20) Secretarial determination.--The term ``Secretarial 
     determination'' means a determination of the Secretary made 
     under section 202(a).
       (21) Secretaries.--The term ``Secretaries'' means--
       (A) the Secretary of the Interior or designee;
       (B) the Secretary of Commerce or designee; and
       (C) the Secretary of Agriculture or designee.
       (22) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (23) States.--The term ``States'' means--
       (A) the State of Oregon; and
       (B) the State of California.

                     TITLE I--RESTORATION AGREEMENT

     SEC. 101. APPROVAL AND EXECUTION OF RESTORATION AGREEMENT.

       (a) In General.--The United States approves the Restoration 
     Agreement except to the extent the Restoration Agreement 
     conflicts with this title.
       (b) Signing and Implementation of the Restoration 
     Agreement.--The Secretaries shall--
       (1) sign and implement the Restoration Agreement;
       (2) implement any amendment to the Restoration Agreement 
     approved by the Parties after the date of enactment of this 
     title, unless 1 or more of the Secretaries determines, not 
     later than 90 days after the date on which the non-Federal 
     Parties agree to the amendment, that the amendment is 
     inconsistent with this title or other provisions of law; and
       (3) to the extent consistent with the Restoration 
     Agreement, this title, and other provisions of law, perform 
     all actions necessary to carry out each responsibility of the 
     Secretary concerned under the Restoration Agreement.
       (c) Effect of Signing of Restoration Agreement.--Signature 
     by the Secretaries of the Restoration Agreement does not 
     constitute a major Federal action under the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
       (d) Compliance With Existing Law.--In implementing the 
     Restoration Agreement, the Secretaries shall comply with--
       (1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.); and
       (3) all other applicable Federal environmental laws 
     (including regulations).

     SEC. 102. AGREEMENTS AND NON-FEDERAL FUNDS.

       (a) Agreements.--The Secretaries may enter into such 
     agreements and take such other measures (including entering 
     into contracts and financial assistance agreements) as the 
     Secretaries consider necessary to carry out this title.
       (b) Acceptance and Expenditure of Non-Federal Funds.--
       (1) In general.--Notwithstanding title 31, United States 
     Code, the Secretaries may accept and expend, without further 
     appropriation, non-Federal funds (including donations or in-
     kind services, or both) and accept by donation or otherwise 
     real or personal property or any interest in the property, 
     for the purposes of implementing the Restoration Agreement.
       (2) Use.--The funds may be expended, and the property used, 
     under paragraph (1) only for the purposes for which the funds 
     and property were provided, without further appropriation or 
     authority.

     SEC. 103. RIGHTS PROTECTED.

       Notwithstanding any other provision of law, this Act and 
     implementation of the Restoration Agreement shall not 
     restrict or alter the eligibility of any Party or Indian 
     tribe for or receipt of funds, or be considered an offset 
     against any obligations or funds in existence on the date of 
     enactment of this Act, under any Federal or State law.

     SEC. 104. FUNDING.

       (a) Establishment of Accounts.--There are established in 
     the Treasury for the deposit of appropriations and other 
     funds (including non-Federal donated funds) the following 
     noninterest-bearing accounts:
       (1) The On-Project Plan and Power for Water Management 
     Fund.
       (2) The Water Use Retirement and Off-Project Reliance Fund.
       (3) The Klamath Drought Fund.
       (b) Management.--The accounts established by subsection (a) 
     shall be managed in accordance with this title and section 
     14.3 of the Restoration Agreement.
       (c) Budget Requests.--When submitting annual budget 
     requests to Congress, the President may include funding 
     described in Appendix C-2 of the Restoration Agreement with 
     such adjustment as the President considers appropriate to 
     maintain timely implementation of the Restoration Agreement.
       (d) Nonreimbursable.--Except as provided in section 108(d), 
     funds appropriated and expended for the implementation of the 
     Restoration Agreement shall be nonreimbursable and 
     nonreturnable to the United States.
       (e) Funds Available Until Expended.--All funds made 
     available for the implementation of the Restoration Agreement 
     shall remain available until expended.

     SEC. 105. KLAMATH RECLAMATION PROJECT.

       (a) Klamath Reclamation Project Purposes.--The purposes of 
     the Klamath Reclamation Project shall be irrigation, 
     reclamation, flood control, municipal, industrial, power (as 
     necessary to implement the Restoration Agreement), National 
     Wildlife Refuge, and fish and wildlife.
       (b) Effect of Fish and Wildlife Purposes.--
       (1) In general.--Subject to paragraph (2), the fish and 
     wildlife and National Wildlife Refuge purposes of the Klamath 
     Reclamation Project shall not adversely affect the irrigation 
     purpose of the Klamath Reclamation Project.
       (2) Water allocations and delivery.--The provisions 
     regarding water allocations and delivery to the National 
     Wildlife Refuges in section 15.1.2 of the Restoration 
     Agreement (including any additional water made available 
     under sections 15.1.2.E.ii and 18.3.2.B.v of the Restoration 
     Agreement) shall not be considered to have an adverse effect 
     on the irrigation purpose of the Klamath Reclamation Project.
       (c) Water Rights Adjudication.--Notwithstanding subsections 
     (a) and (b), for purposes of the determination of water 
     rights in Oregon Klamath Basin Adjudication, until Appendix 
     E-1 to the Restoration Agreement has been filed in the Oregon 
     Klamath Basin Adjudication, the 1 or more purposes of the 
     Klamath Reclamation Project shall continue as in existence 
     prior to the date of enactment of this Act.
       (d) Disposition of Net Revenues From Leasing of Tule Lake 
     and Lower Klamath National Wildlife Refuge Land.--
     Notwithstanding any other provision of law, net revenues from 
     the leasing of refuge land within the Tule Lake National 
     Wildlife Refuge and the Lower Klamath National Wildlife 
     Refuge under section 4 of Public Law 88-567 (16 U.S.C. 695n) 
     shall be provided, without further appropriation, as follows:
       (1) 10 percent of net revenues from land within the Tule 
     Lake National Wildlife Refuge that are within the boundaries 
     of Tulelake Irrigation District shall be provided to the 
     Tulelake Irrigation District in accordance with article 4 of 
     Contract No. 14-06-200-5954 and section 2(a) of the Act of 
     August 1, 1956 (70 Stat. 799, chapter 828).
       (2) Such amounts as are necessary shall be used to make 
     payment to counties in lieu of taxes in accordance with 
     section 3 of Public Law 88-567 (16 U.S.C. 695m).
       (3) 20 percent of net revenues shall be provided directly 
     to the United States Fish and Wildlife Service for wildlife 
     management purposes on the Tule Lake National Wildlife Refuge 
     and Lower Klamath National Wildlife Refuge.
       (4) 10 percent of net revenues from land within Lower 
     Klamath National Wildlife Refuge that are within the 
     boundaries of the Klamath Drainage District shall be provided 
     directly to Klamath Drainage District for operation and 
     maintenance responsibility for the Federal Reclamation water 
     delivery and drainage facilities within the boundaries of 
     both Klamath Drainage District and Lower Klamath National 
     Wildlife Refuge exclusive of the Klamath Straits Drain, 
     subject to the

[[Page S7380]]

     assumption by the Klamath Drainage District of the operation 
     and maintenance duties of the Bureau of Reclamation for 
     Klamath Drainage District (Area K) lease land exclusive of 
     Klamath Straits Drain.
       (5) The remainder of net revenues shall be provided 
     directly to the Bureau of Reclamation for--
       (A) operation and maintenance costs of Link River and Keno 
     Dams incurred by the United States; and
       (B) to the extent that the revenues received under this 
     paragraph for any year exceed the costs described in 
     subparagraph (A), future capital costs of the Klamath 
     Reclamation Project.

     SEC. 106. TRIBAL COMMITMENTS AND ACTIONS.

       (a) Actions by the Klamath Tribes.--In return for the 
     resolution of the contests of the Klamath Project Water Users 
     related to the water rights claims of the Klamath Tribes and 
     of the United States acting in a capacity as trustee for the 
     Klamath Tribes and members of the Klamath Tribes in the 
     Oregon Klamath Basin Adjudication and for other benefits 
     covered by the Restoration Agreement and this Act, the 
     Klamath Tribes (on behalf of the Klamath Tribes and members 
     of the Klamath Tribes) are authorized to make the commitments 
     in the Restoration Agreement, including the assurances 
     contained in section 15 of the Restoration Agreement, and 
     such commitments are confirmed as effective and binding in 
     accordance with the terms of the commitments without further 
     action by the Klamath Tribes.
       (b) Actions by the Karuk Tribe and the Yurok Tribe.--In 
     return for the commitments of the Klamath Project Water Users 
     related to water rights of the Karuk Tribe and the Yurok 
     Tribe as described in the Restoration Agreement and for other 
     benefits covered by the Restoration Agreement and this Act, 
     the Karuk Tribe and the Yurok Tribe (on behalf of those 
     Tribes and members of those Tribes) are authorized to make 
     the commitments provided in the Restoration Agreement, 
     including the assurances contained in section 15 of the 
     Restoration Agreement, and such commitments are confirmed as 
     effective and binding in accordance with the terms of the 
     commitments without further action by the Yurok Tribe or the 
     Karuk Tribe.
       (c) Release of Claims Against the United States.--
       (1) In general.--Without affecting rights secured by 
     treaty, Executive order, or other law, the Party Tribes (on 
     behalf of the Party Tribes and members of the Party Tribes) 
     may relinquish and release certain claims against the United 
     States, Federal agencies, or Federal employees, described in 
     sections 15.3.5.A, 15.3.6.B.i and 15.3.7.B.i of the 
     Restoration Agreement.
       (2) Conditions.--The relinquishments and releases shall not 
     be in force or effect until the terms described in sections 
     15.3.5.C, 15.3.6.B.iii, 15.3.7.B.iii, and 33.2.1 of the 
     Restoration Agreement have been fulfilled.
       (d) Retention of Rights of the Party Tribes.--
     Notwithstanding the commitments and releases described in 
     subsections (a) through (c), the Party Tribes and the members 
     of the Party Tribes shall retain all claims described in 
     sections 15.3.5.B, 15.3.6.B.ii and 15.3.7.B.ii of the 
     Restoration Agreement.
       (e) Tolling of Claims.--
       (1) In general.--Subject to paragraph (2), the period of 
     limitation and time-based equitable defense relating to a 
     claim described in subsection (c) shall be tolled during the 
     period--
       (A) beginning on the date of enactment of this Act; and
       (B) ending on the earlier of--
       (i) the date the Secretary publishes the notice described 
     in sections 15.3.5.C, 15.3.6.B.iii and 15.3.7.B.iii of the 
     Restoration Agreement; or
       (ii) December 1, 2030.
       (2) Effect of tolling.--Nothing in this subsection--
       (A) revives any claim or tolls any period of limitation or 
     time-based equitable defense that expired before the date of 
     enactment of this Act; or
       (B) precludes the tolling of any period of limitations or 
     any time-based equitable defense under any other applicable 
     law.
       (f) Actions of the United States Acting in Capacity as 
     Trustee.--In return for the commitments of the Klamath 
     Project Water Users relating to the water rights and water 
     rights claims of federally recognized tribes of the Klamath 
     Basin and of the United States as trustee for such tribes and 
     other benefits covered by the Restoration Agreement and this 
     Act, the United States, as trustee on behalf of the federally 
     recognized tribes of the Klamath Basin and allottees of 
     reservations of federally recognized tribes of the Klamath 
     Basin in California, is authorized to make the commitments 
     provided in the Restoration Agreement, including the 
     assurances contained in section 15 of the Restoration 
     Agreement, and such commitments are confirmed as effective 
     and binding in accordance with the terms of the commitments, 
     without further action by the United States.
       (g) Further Agreements.--The United States and the Klamath 
     Tribes may enter into agreements consistent with section 16.2 
     of the Restoration Agreement.
       (h) Effect of Section.--Nothing in this section--
       (1) affects the ability of the United States to take 
     actions--
       (A) authorized by law to be taken in the sovereign capacity 
     of the United States, including any laws relating to health, 
     safety, or the environment, including--
       (i) the Federal Water Pollution Control Act (33 U.S.C. 1251 
     et seq.);
       (ii) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
       (iii) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
     seq.);
       (iv) the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
     seq.); and
       (v) regulations implementing the Acts described in this 
     subparagraph;
       (B) as trustee for the benefit of federally recognized 
     tribes other than the federally recognized tribes of the 
     Klamath Basin;
       (C) as trustee for the federally recognized tribes of the 
     Klamath Basin and the members of the tribes that are 
     consistent with the Restoration Agreement and this title;
       (D) as trustee for the Party Tribes to enforce the 
     Restoration Agreement and this title through such legal and 
     equitable remedies as may be available in the appropriate 
     Federal or State court or administrative proceeding, 
     including the Oregon Klamath Basin Adjudication;
       (E) as trustee for the federally recognized tribes of the 
     Klamath Basin to acquire water rights after the effective 
     date of the Restoration Agreement (as defined in section 
     1.5.1 of the Restoration Agreement);
       (F) as trustee for the federally recognized tribes of the 
     Klamath Basin to use and protect water rights, including 
     water rights acquired after the effective date of the 
     Restoration Agreement (as defined in section 1.5.1 of the 
     Restoration Agreement), subject to the Restoration Agreement; 
     or
       (G) as trustee for the federally recognized tribes of the 
     Klamath Basin to claim water rights or continue to advocate 
     for existing claims for water rights in appropriate Federal 
     and State courts or administrative proceedings with 
     jurisdiction over the claims, subject to the Restoration 
     Agreement;
       (2) affects the treaty fishing, hunting, trapping, 
     pasturing, or gathering rights of any Indian tribe except to 
     the extent expressly provided in this title or the 
     Restoration Agreement; or
       (3) affects any rights, remedies, privileges, immunities, 
     and powers, and claims not specifically relinquished and 
     released under, or limited by, this title or the Restoration 
     Agreement.
       (i) Publication of Notice; Effect of Publication.--
       (1) Publication.--The Secretary shall publish the notice 
     required by section 15.3.4.A or section 15.3.4.C of the 
     Restoration Agreement in accordance with the Restoration 
     Agreement.
       (2) Effect.--On publication of the notice described in 
     paragraph (1), the Party Tribes, the United States as trustee 
     for the federally recognized tribes of the Klamath Basin, and 
     other Parties shall have the rights and obligations provided 
     in the Restoration Agreement.
       (j) Fisheries Programs.--Consistent with section 102(a), 
     the Secretaries shall give priority to qualified Party Tribes 
     in awarding grants, contracts, or other agreements, 
     consistent with section 102, for purposes of implementing the 
     fisheries programs described in part III of the Restoration 
     Agreement.
       (k) Tribes Outside Klamath Basin Unaffected.--Nothing in 
     this Act or the Restoration Agreement affects the rights of 
     any Indian tribe outside the Klamath Basin.
       (l) Nonparty Tribes of the Klamath Basin Unaffected.--
     Nothing in this Act or the Restoration Agreement amends, 
     alters, or limits the authority of the federally recognized 
     tribes of the Klamath Basin, other than the Party Tribes, to 
     exercise any water rights the tribes hold or may be 
     determined to hold.

     SEC. 107. JUDICIAL REVIEW.

       Judicial review of a decision of the Secretary concerning 
     rights or obligations under sections 15.3.5.C, 15.3.6.B.iii, 
     15.3.7.B.iii, 15.3.8.B, and 15.3.9 of the Restoration 
     Agreement shall be in accordance with the standard and scope 
     of review under subchapter II of chapter 5, and chapter 7, of 
     title 5, United States Code (commonly known as the 
     ``Administrative Procedure Act'').

     SEC. 108. MISCELLANEOUS.

       (a) Water Rights.--
       (1) In general.--Except as specifically provided in this 
     title and the Restoration Agreement, nothing in this title or 
     the Restoration Agreement shall create or determine water 
     rights or affect water rights or water right claims in 
     existence on the date of enactment of this Act.
       (2) No standard for quantification.--Nothing in this title 
     or the Restoration Agreement establishes any standard for the 
     quantification of Federal reserved water rights or any Indian 
     water claims of any Indian tribe in any judicial or 
     administrative proceeding.
       (b) Limitations.--
       (1) In general.--Nothing in this title--
       (A) confers on any person or entity who is not a party to 
     the Restoration Agreement a private right of action or claim 
     for relief to interpret or enforce this title or the 
     Restoration Agreement; or
       (B) expands the jurisdiction of State courts to review 
     Federal agency actions or determine Federal rights.
       (2) Effect.--This subsection does not alter or curtail any 
     right of action or claim for relief under other applicable 
     law.
       (c) Relationship to Certain Other Federal Law.--

[[Page S7381]]

       (1) In general.--Nothing in this title amends, supersedes, 
     modifies, or otherwise affects--
       (A) Public Law 88-567 (16 U.S.C. 695k et seq.);
       (B) the National Wildlife Refuge System Administration Act 
     of 1966 (16 U.S.C. 668dd et seq.);
       (C) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.);
       (D) the Federal Water Pollution Control Act (33 U.S.C. 1251 
     et seq.); or
       (E) the Federal Land Policy and Management Act of 1976 (43 
     U.S.C. 1701 et seq.).
       (2) Consistency.--The Restoration Agreement shall be 
     considered consistent with subsections (a) through (c) of 
     section 208 of the Act of July 10, 1952 (66 Stat. 560, 
     chapter 651; 43 U.S.C. 666).
       (d) Termination of Restoration Agreement.--If the 
     Restoration Agreement terminates--
       (1) any appropriated Federal funds provided to a Party by 
     the Secretaries that are unexpended at the time of the 
     termination of the Restoration Agreement shall be returned to 
     the Treasury; and
       (2) any appropriated Federal funds provided to a Party by 
     the Secretaries shall be treated as an offset against any 
     claim for damages by the Party arising under the Restoration 
     Agreement.
       (e) Willing Sellers.--Any acquisition of interests in land 
     and water pursuant to this title or the Restoration Agreement 
     shall be from willing sellers.

                   TITLE II--HYDROELECTRIC SETTLEMENT

     SEC. 201. APPROVAL AND EXECUTION OF HYDROELECTRIC SETTLEMENT.

       (a) In General.--The United States approves the 
     Hydroelectric Settlement, except to the extent the 
     Hydroelectric Settlement conflicts with this title.
       (b) Implementation.--The Secretary, the Secretary of 
     Commerce, and the Commission, or designees, shall implement, 
     in consultation with other applicable Federal agencies--
       (1) the Hydroelectric Settlement; and
       (2) any amendment to the Hydroelectric Settlement, unless 1 
     or more of the Secretaries determines, not later than 90 days 
     after the date the non-Federal Parties agree to the 
     amendment, that the amendment is inconsistent with this 
     title.

     SEC. 202. SECRETARIAL DETERMINATION.

       (a) In General.--The Secretary shall determine, consistent 
     with section 3 of the Hydroelectric Settlement, whether to 
     proceed with facilities removal and may determine to proceed 
     with facilities removal if, as determined by the Secretary, 
     facilities removal--
       (1) will advance restoration of the salmonid fisheries of 
     the Klamath Basin; and
       (2) is in the public interest, taking into account 
     potential impacts on affected local communities and federally 
     recognized Indian tribes among other factors.
       (b) Basis for Secretarial Determination.--To support the 
     Secretarial determination, the Secretary, in cooperation with 
     the Secretary of Commerce and other entities, shall--
       (1) use existing information;
       (2) conduct any necessary further appropriate studies;
       (3) prepare an environmental document under the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 
     and
       (4) take such other actions as the Secretary determines to 
     be appropriate.
       (c) Designation of Dam Removal Entity.--
       (1) In general.--If the Secretarial determination provides 
     for proceeding with facilities removal, the Secretarial 
     determination shall include the designation of a Dam Removal 
     Entity.
       (2) Requirements.--
       (A) In general.--Subject to subparagraph (B), the Dam 
     Removal Entity designated by the Secretary shall be the 
     Department if the Secretary determines, in the judgment of 
     the Secretary, that--
       (i) the Department has the capabilities and 
     responsibilities for facilities removal described in section 
     7 of the Hydroelectric Settlement; and
       (ii) it is appropriate for the Department to be the Dam 
     Removal Entity.
       (B) Non-federal dam removal entity.--As determined by the 
     Secretary consistent with section 3.3.4.E of the 
     Hydroelectric Settlement, the Secretary may designate a non-
     Federal Dam Removal Entity if--
       (i) the Secretary finds, based on the judgment of the 
     Secretary, that the Dam Removal Entity-designate is qualified 
     and has the capabilities and responsibilities for facilities 
     removal described in section 7 of the Hydroelectric 
     Settlement;
       (ii) the States have concurred in the finding described in 
     clause (i); and
       (iii) the Dam Removal Entity-designate has committed, if so 
     designated, to perform facilities removal within the State 
     Cost Cap described in section 4.1.3 of the Hydroelectric 
     Settlement.
       (d) Conditions for Secretarial Determination.--The 
     Secretary may not make or publish the Secretarial 
     determination, unless the conditions specified in section 
     3.3.4 of the Hydroelectric Settlement have been satisfied.
       (e) Notice.--The Secretary shall--
       (1) publish notification of the Secretarial determination 
     in the Federal Register; and
       (2) submit to the Committee on Energy and Natural Resources 
     of the Senate and the Committee on Natural Resources of the 
     House of Representatives a report on implementation of the 
     Hydroelectric Settlement.
       (f) Judicial Review of Secretarial Determination.--
       (1) In general.--For purposes of judicial review, the 
     Secretarial determination shall constitute a final agency 
     action with respect to whether or not to proceed with 
     facilities removal.
       (2) Petition for review.--
       (A) Filing.--
       (i) In general.--Judicial review of the Secretarial 
     determination and related actions to comply with 
     environmental laws (including the National Environmental 
     Policy Act of 1969 (42 U.S.C. 4321 et seq), the Endangered 
     Species Act of 1973 (16 U.S.C. 1531 et seq), and the National 
     Historic Preservation Act (16 U.S.C. 470 et seq.)) may be 
     obtained by an aggrieved person or entity only as provided in 
     this subsection.
       (ii) Jurisdiction.--A petition for review under this 
     paragraph may be filed only in the United States Court of 
     Appeals for the District of Columbia Circuit or in the Ninth 
     Circuit Court of Appeals.
       (iii) Limitation.--Neither a district court of the United 
     States nor a State court shall have jurisdiction to review 
     the Secretarial determination or related actions to comply 
     with environmental laws described in clause (i).
       (B) Deadline.--
       (i) In general.--Except as provided in clause (ii), any 
     petition for review under this subsection shall be filed 
     within 60 days after the date of publication of the 
     Secretarial determination in the Federal Register.
       (ii) Subsequent grounds.--If a petition is based solely on 
     grounds arising after the date that is 60 days after the date 
     of publication of the Secretarial determination in the 
     Federal Register, the petition for review under this 
     subsection shall be filed not later than 60 days after the 
     grounds arise.
       (3) Implementation.--Any action of the Secretary with 
     respect to which review could have been obtained under this 
     paragraph shall not be subject to judicial review in any 
     action relating to the implementation of the Secretarial 
     determination or in proceedings for enforcement of the 
     Hydroelectric Settlement.
       (4) Applicable standard and scope.--Judicial review of the 
     Secretarial determination shall be in accordance with the 
     standard and scope of review under subchapter II of chapter 
     5, and chapter 7, of title 5, United States Code (commonly 
     known as the ``Administrative Procedure Act'').
       (5) Non-tolling.--The filing of a petition for 
     reconsideration by the Secretary of an action subject to 
     review under this subsection shall not--
       (A) affect the finality of the action for purposes of 
     judicial review;
       (B) extend the time within which a petition for judicial 
     review under this subsection may be filed; or
       (C) postpone the effectiveness of the action.

     SEC. 203. FACILITIES TRANSFER AND REMOVAL.

       (a) Facilities Removal Process.--
       (1) Application.--This subsection shall apply if--
       (A) the Secretarial determination provides for proceeding 
     with facilities removal;
       (B) the States concur in the Secretarial determination in 
     accordance with section 3.3.5 of the Hydroelectric 
     Settlement;
       (C) the availability of non-Federal funds for the purposes 
     of facilities removal is consistent with the Hydroelectric 
     Settlement; and
       (D) the Hydroelectric Settlement has not terminated in 
     accordance with section 8.11 of the Hydroelectric Settlement.
       (2) Non-federal funds.--
       (A) In general.--Notwithstanding title 31, United States 
     Code, if the Department is designated as the Dam Removal 
     Entity, the Secretary may accept, expend without further 
     appropriation, and manage non-Federal funds for the purpose 
     of facilities removal in accordance with sections 4 and 7 of 
     the Hydroelectric Settlement.
       (B) Refund.--The Secretary is authorized to administer and 
     refund any funds described in subparagraph (A) received from 
     the State of California in accordance with the requirements 
     established by the State.
       (3) Agreements.--The Dam Removal Entity may enter into 
     agreements and contracts as necessary to assist in the 
     implementation of the Hydroelectric Settlement.
       (4) Facilities removal.--
       (A) In general.--The Dam Removal Entity shall, consistent 
     with the Hydroelectric Settlement--
       (i) develop a definite plan for facilities removal, 
     including a schedule for facilities removal;
       (ii) obtain all permits, authorizations, entitlements, 
     certifications, and other approvals necessary to implement 
     facilities removal, including a permit under section 404 of 
     the Federal Water Pollution Control Act (33 U.S.C. 1344); and
       (iii) implement facilities removal.
       (B) State and local laws.--Facilities removal shall be 
     subject to applicable requirements of State and local laws 
     respecting permits and other authorizations, to the extent 
     the requirements are not in conflict with Federal law, 
     including the Secretarial determination and the detailed plan 
     (including the schedule) for facilities removal authorized 
     under this Act.
       (C) Limitations.--Subparagraph (B) shall not affect--

[[Page S7382]]

       (i) the authorities of the States regarding concurrence 
     with the Secretarial determination in accordance with State 
     law; or
       (ii) the authority of a State public utility commission 
     regarding funding of facilities removal.
       (D) Acceptance of title to facilities.--The Dam Removal 
     Entity is authorized to accept from PacifiCorp all rights, 
     titles, permits, and other interests in the facilities and 
     associated land, for facilities removal and for disposition 
     of facility land (as provided in section 7.6.4 of the 
     Hydroelectric Settlement) upon the Dam Removal Entity 
     providing notice that the Dam Removal Entity is ready to 
     commence facilities removal in accordance with section 7.4.1 
     of the Hydroelectric Settlement.
       (E) Continued power generation.--
       (i) In general.--In accordance with an agreement negotiated 
     under clause (ii), on transfer of title pursuant to 
     subparagraph (D) and until the Dam Removal Entity instructs 
     PacifiCorp to cease the generation of power, PacifiCorp may, 
     consistent with State law--

       (I) continue generating and retaining title to any power 
     generated by the facilities in accordance with section 7 of 
     the Hydroelectric Settlement; and
       (II) continue to transmit and use the power for the benefit 
     of the customers of PacifiCorp under the jurisdiction of 
     applicable State public utility commissions and the 
     Commission.

       (ii) Agreement with dam removal entity.--Before transfer of 
     title pursuant to subparagraph (D), the Dam Removal Entity 
     shall enter into an agreement with PacifiCorp that provides 
     for continued generation of power in accordance with clause 
     (i).
       (b) Jurisdiction.--The United States district courts shall 
     have original jurisdiction over all claims regarding the 
     consistency of State and local laws regarding permits and 
     other authorizations, and of State and local actions pursuant 
     to those laws, with the Secretarial determination and the 
     detailed plan (including the schedule) for facilities removal 
     authorized under this title.
       (c) No Private Right of Action.--
       (1) In general.--Nothing in this title confers on any 
     person or entity not a party to the Hydroelectric Settlement 
     a private right of action or claim for relief to interpret or 
     enforce this title or the Hydroelectric Settlement.
       (2) Other law.--This subsection does not alter or curtail 
     any right of action or claim for relief under any other 
     applicable law.

     SEC. 204. TRANSFER OF KENO DEVELOPMENT.

       (a) In General.--The Secretary shall accept the transfer of 
     title in the Keno Development to the United States in 
     accordance with section 7.5 of the Hydroelectric Settlement.
       (b) Effect of Transfer.--On the transfer and without 
     further action by Congress--
       (1) the Keno Development shall--
       (A) become part of the Klamath Reclamation Project; and
       (B) be operated and maintained in accordance with Federal 
     reclamation law (the Act of June 17, 1902 (32 Stat. 388, 
     chapter 1093), and Acts supplemental to and amendatory of 
     that Act (43 U.S.C. 371 et seq.) and this Act; and
       (2) Commission jurisdiction over the Keno Development shall 
     terminate.

     SEC. 205. LIABILITY PROTECTION.

       (a) PacifiCorp.--Notwithstanding any other Federal, State, 
     local, or other law (including common law), PacifiCorp shall 
     not be liable for any harm to persons, property, or the 
     environment, or damages resulting from either facilities 
     removal or facility operation, arising from, relating to, or 
     triggered by actions associated with facilities removal, 
     including but not limited to any damage caused by the release 
     of any material or substance, including but not limited to 
     hazardous substances.
       (b) Funding.--Notwithstanding any other Federal, State, 
     local, or other law, no person or entity contributing funds 
     for facilities removal pursuant to the Hydroelectric 
     Settlement shall be held liable, solely by virtue of that 
     funding, for any harm to persons, property, or the 
     environment, or damages arising from either facilities 
     removal or facility operation, arising from, relating to, or 
     triggered by actions associated with facilities removal, 
     including any damage caused by the release of any material or 
     substance, including hazardous substances.
       (c) Preemption.--
       (1) In general.--Except as provided in paragraph (2), 
     notwithstanding section 10(c) of the Federal Power Act (16 
     U.S.C. 803(c)), protection from liability under this section 
     preempts the laws of any State to the extent the laws are 
     inconsistent with this title.
       (2) Other provisions of law.--This title does not limit any 
     otherwise available immunity, privilege, or defense under any 
     other provision of law.
       (d) Application.--Liability protection under this section 
     shall apply to any particular facility beginning on the date 
     of transfer of title to that facility from PacifiCorp to the 
     Dam Removal Entity.

     SEC. 206. LICENSES.

       (a) Annual Licenses.--
       (1) In general.--The Commission shall issue annual licenses 
     authorizing PacifiCorp to continue to operate the facilities 
     until PacifiCorp transfers title to all of the facilities.
       (2) Termination.--The annual licenses shall terminate with 
     respect to a facility on transfer of title for such facility 
     from PacifiCorp to the Dam Removal Entity.
       (3) Staged removal.--
       (A) In general.--On transfer of title of any facility by 
     PacifiCorp to the Dam Removal Entity, annual license 
     conditions shall no longer be in effect with respect to such 
     facility.
       (B) Nontransfer of title.--Annual license conditions shall 
     remain in effect with respect to any facility for which 
     PacifiCorp has not transferred title to the Dam Removal 
     Entity to the extent compliance with the annual license 
     conditions are not prevented by the removal of any other 
     facility.
       (b) Jurisdiction.--The jurisdiction of the Commission under 
     part I of the Federal Power Act (16 U.S.C. 791a et seq.) 
     shall terminate with respect to a facility on the transfer of 
     title for the facility from PacifiCorp to the Dam Removal 
     Entity.
       (c) Relicensing.--
       (1) In general.--The Commission shall--
       (A) stay the proceeding of the Commission on the pending 
     license application of PacifiCorp for Project No. 2082 as 
     long as the Hydroelectric Settlement remains in effect; and
       (B) resume the proceeding and proceed to take final action 
     on the new license application only if the Hydroelectric 
     Settlement terminates pursuant to section 8.11 of the 
     Hydroelectric Settlement.
       (2) Termination.--
       (A) In general.--Subject to subparagraph (B), if the 
     Hydroelectric Settlement is terminated, the Secretarial 
     determination under section 202(a) and findings of fact 
     contained in the Secretarial determination shall not be 
     admissible or otherwise relied on in the proceedings of the 
     Commission on the new license application.
       (B) Limitations.--If the Hydroelectric Settlement is 
     terminated, the Commission, in proceedings on the new license 
     application, shall not be bound by the record, findings, or 
     determination of the Secretary under this section.
       (d) East Side and West Side Developments.--On filing by 
     PacifiCorp of an application for surrender of the East Side 
     and West Side Developments in Project No. 2082, the 
     Commission shall issue an order approving partial surrender 
     of the license for Project No. 2082, including any reasonable 
     and appropriate conditions, as provided in section 6.4.1 of 
     the Hydroelectric Settlement.
       (e) Fall Creek.--Notwithstanding subsection (b), not later 
     than 60 days after the date of the transfer of the Iron Gate 
     Facility to the Dam Removal Entity, the Commission shall 
     resume timely consideration of the pending licensing 
     application for the Fall Creek development pursuant to the 
     Federal Power Act (16 U.S.C. 791a et seq.), regardless of 
     whether PacifiCorp retains ownership of Fall Creek or 
     transfers ownership to a new licensee.
       (f) Iron Gate Hatchery.--Notwithstanding section 8 of the 
     Federal Power Act (16 U.S.C. 801), the PacifiCorp Hatchery 
     Facilities within the State of California shall be 
     transferred to the State of California at the time of 
     transfer to the dam removal entity of the Iron Gate Hydro 
     Development or such other time agreed by the Parties to the 
     Hydroelectric Settlement.
       (g) Transfers of Facilities.--Notwithstanding section 8 of 
     the Federal Power Act (16 U.S.C. 801), the transfer of 
     PacifiCorp facilities to a non-Federal dam removal entity 
     consistent with the Hydroelectric Settlement and this title 
     is authorized.

     SEC. 207. MISCELLANEOUS.

       (a) Water Rights.--Except as specifically provided in this 
     title and the Hydroelectric Settlement, nothing in this title 
     or the Hydroelectric Settlement shall create or determine 
     water rights or affect water rights or water right claims in 
     existence on the date of enactment of this Act..
       (b) Tribal Rights.--Nothing in this title affect the rights 
     of any Indian tribe secured by treaty, Executive order, or 
     other law of the United States.
       (c) Relationship to Other Federal Laws.--Nothing in this 
     title amends, supersedes, modifies or otherwise affects--
       (1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.); or
       (3) the Federal Water Pollution Control Act (33 U.S.C. 1251 
     et seq.), except to the extent section 203 of this Act 
     requires a permit under section 404 of that Act (33 U.S.C. 
     1344) notwithstanding section 404(r) of that Act (33 U.S.C. 
     1344(r)).
                                 ______