[House Report 106-791]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-791

======================================================================



 
RECOVERY IMPLEMENTATION PROGRAM FOR THE ENDANGERED FISH SPECIES IN THE 
                          UPPER COLORADO RIVER

                                _______
                                

 July 25, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2348]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2348) to authorize the Bureau of Reclamation to provide 
cost sharing for the endangered fish recovery implementation 
programs for the Upper Colorado and San Juan River Basins, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. PURPOSE.

  The purpose of this Act is to authorize and provide funding for the 
Bureau of Reclamation to continue the implementation of the endangered 
fish recovery implementation programs for the Upper Colorado and San 
Juan River Basins in order to accomplish the objectives of these 
programs within a currently established time schedule.

SEC. 2. DEFINITIONS.

  As used in this Act:
          (1) The term ``Recovery Implementation Programs'' means the 
        intergovernmental programs established pursuant to the 1988 
        Cooperative Agreement to implement the Recovery Implementation 
        Program for the Endangered Fish Species in the Upper Colorado 
        River dated September 29, 1987, and the 1992 Cooperative 
        Agreement to implement the San Juan River Recovery 
        Implementation Program dated October 21, 1992, and as they may 
        be amended by the parties thereto.
          (2) The term ``Secretary'' means the Secretary of the 
        Interior.
          (3) The term ``Upper Division States'' means the States of 
        Colorado, New Mexico, Utah, and Wyoming.
          (4) The term ``Colorado River Storage Project'' or ``storage 
        project'' means those dams, reservoirs, power plants, and other 
        appurtenant project facilities and features authorized by and 
        constructed in accordance with the Colorado River Storage 
        Project Act (43 U.S.C. 620 et seq.).
          (5) The term ``capital projects'' means planning, design, 
        permitting or other compliance, pre-construction activities, 
        construction, construction management, and replacement of 
        facilities, and the acquisition of interests in land or water, 
        as necessary to carry out the Recovery Implementation Programs.
          (6) The term ``facilities'' includes facilities for the 
        genetic conservation or propagation of the endangered fishes, 
        those for the restoration of floodplain habitat or fish 
        passage, those for control or supply of instream flows, and 
        those for the removal or translocation of nonnative fishes.
          (7) The term ``interests in land and water'' includes, but is 
        not limited to, long-term leases and easements, and long-term 
        enforcement, or other agreements protecting instream flows.
          (8) The term ``base funding'' means funding for operation and 
        maintenance of capital projects, implementation of recovery 
        actions other than capital projects, monitoring and research to 
        evaluate the need for or effectiveness of any recovery action, 
        and program management, as necessary to carry out the Recovery 
        Implementation Programs. Base funding also includes annual 
        funding provided under the terms of the 1988 Cooperative 
        Agreement and the 1992 Cooperative Agreement.
          (9) The term ``recovery actions other than capital projects'' 
        includes short-term leases and agreements for interests in 
        land, water, and facilities; the reintroduction or augmentation 
        of endangered fish stocks; and the removal, translocation, or 
        other control of nonnative fishes.
          (10) The term ``depletion charge'' means a one-time 
        contribution in dollars per acre-foot to be paid to the United 
        States Fish and Wildlife Service based on the average annual 
        new depletion by each project.

SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.

  (a) Authorization of Appropriations for Federal Participation in 
Capital Projects.--(1) There is hereby authorized to be appropriated to 
the Secretary, $46,000,000 to undertake capital projects to carry out 
the purposes of this Act. Such funds shall be considered a 
nonreimbursable Federal expenditure.
  (2) The authority of the Secretary, acting through the Bureau of 
Reclamation, under this or any other provision of law to implement 
capital projects for the Recovery Implementation Program for Endangered 
Fish Species in the Upper Colorado River Basin shall expire in fiscal 
year 2005 unless reauthorized by an Act of Congress.
  (3) The authority of the Secretary to implement the capital projects 
for the San Juan River Basin Recovery Implementation Program shall 
expire in fiscal year 2007 unless reauthorized by an Act of Congress.
  (b) Cost of Capital Projects.--The total costs of the capital 
projects undertaken for the Recovery Implementation Programs receiving 
assistance under this Act shall not exceed $100,000,000 of which--
          (1) costs shall not exceed $82,000,000 for the Recovery 
        Implementation Program for Endangered Fish Species in the Upper 
        Colorado River Basin through fiscal year 2005; and
          (2) costs shall not exceed $18,000,000 for the San Juan River 
        Recovery Implementation Program through fiscal year 2007.
The amounts set forth in this subsection shall be adjusted by the 
Secretary for inflation in each fiscal year beginning after the 
enactment of this Act.
  (c) Non-Federal Contributions to Capital Projects.--(1) The 
Secretary, acting through the Bureau of Reclamation, may accept 
contributed funds from the Upper Division States, or political 
subdivisions or organizations with the Upper Division States, pursuant 
to agreements that provide for the contributions to be usedfor capital 
projects costs. Such non-Federal contributions shall not exceed 
$17,000,000.
  (2) In addition to the contribution described in paragraph (1), the 
Secretary of Energy, acting through the Western Area Power 
Administration, and the Secretary of the Interior, acting through the 
Bureau of Reclamation, may utilize power revenues collected pursuant to 
the Colorado River Storage Project Act to carry out the purposes of 
this subsection. Such funds shall be treated as reimbursable costs 
assigned to power for repayment under section 5 of the Colorado River 
Storage Project Act. This additional contribution shall not exceed 
$17,000,000. Such funds shall be considered a non-Federal contribution 
for the purposes of this Act. The funding authorized by this paragraph 
over any 2-fiscal-year period shall be made available in amounts equal 
to the contributions for the same two fiscal year period made by the 
Upper Division States pursuant to paragraph (1).
  (3) The additional funding provided pursuant to paragraph (2) may be 
provided through loans from the Colorado Water Conservation Board 
Construction Fund (37-60-121 C.R.S.) to the Western Area Power 
Administration in lieu of funds which would otherwise be collected from 
power revenues and used for storage project repayments. The Western 
Area Power Administration is authorized to repay such loan or loans 
from power revenues collected beginning in fiscal year 2012, subject to 
an agreement between the Colorado Water Conservation Board, the Western 
Area Power Administration, and the Bureau of Reclamation. The agreement 
and any future loan contracts that may be entered into by the Colorado 
Water Conservation Board, the Western Area Power Administration, and 
the Bureau of Reclamation shall be negotiated in consultation with Salt 
Lake City Area Integrated Projects Firm Power Contractors. The 
agreement and loan contracts shall include provisions designed to 
minimize impacts on electrical power rates and shall ensure that loan 
repayment to the Colorado Water Conservation Board, including principal 
and interest, is completed no later than September 30, 2057. The 
Western Area Power Administration is authorized to include in power 
rates such sums as are necessary to carry out this paragraph and 
paragraph (2).
  (4) All contributions made pursuant to this subsection shall be in 
addition to the cost of replacement power purchased due to modifying 
the operation of the Colorado River Storage Project and the capital 
cost of water from Wolford Mountain Reservoir in Colorado. Such costs 
shall be considered as non-Federal contributions, not to exceed 
$20,000,000.
  (d) Base Funding.--(1) Beginning in the first fiscal year commencing 
after the date of enactment of this Act, the Secretary may utilize 
power revenues collected pursuant to the Colorado River Storage Project 
Act for the annual base funding contributions to the Recovery 
Implementation Programs by the Bureau of Reclamation. Such funding 
shall be treated as nonreimbursable and as having been repaid and 
returned to the general fund of the Treasury as costs assigned to power 
for repayment under section 5 of the Colorado River Storage Project 
Act.
  (2) For the Recovery Implementation Program for the Endangered Fish 
Species in the Upper Colorado River Basin, the contributions to base 
funding referred to in paragraph (1) shall not exceed $4,000,000 per 
year. For the San Juan River Recovery Implementation Program, such 
contributions shall not exceed $2,000,000 per year. The Secretary shall 
adjust such amounts for inflation in fiscal years commencing after the 
enactment of this Act. The utilization of power revenues for annual 
base funding shall cease after the fiscal year 2011, unless 
reauthorized by Congress; except that power revenues may continue to be 
utilized to fund the operation and maintenance of capital projects and 
monitoring. No later than the end of fiscal year 2008, the Secretary 
shall submit a report on the utilization of power revenues for base 
funding to the appropriate Committees of the United States Senate and 
the House of Representatives. The Secretary shall also make a 
recommendation in such report regarding the need for continued base 
funding after fiscal year 2011 that may be required to fulfill the 
goals of the Recovery Implementation Programs. Nothing in this Act 
shall otherwise modify or amend existing agreements among participants 
regarding base funding and depletion charges for the Recovery 
Implementation Programs.
  (3) The Western Area Power Administration and the Bureau of 
Reclamation shall maintain sufficient revenues in the Colorado River 
Basin Fund to meet their obligation to provide base funding in 
accordance with paragraph (2). If the Western Area Power Administration 
and the Bureau of Reclamation determine that the funds in the Colorado 
River Basin Fund will not be sufficient to meet the obligations of 
section 5(c)(1) of the Colorado River Storage Project Act for a 3-year 
period, the Western Area Power Administration and the Bureau of 
Reclamation shall request appropriations to meet base funding 
obligations.
  (e) Authority To Retain Appropriated Funds.--At the end of each 
fiscal year any unexpended appropriated funds for capital projects 
under this Act shall be retained for use in future fiscal years. 
Unexpended funds under this Act that are carried over shall continue to 
be used to implement the capital projects needed for the Recovery 
Implementation Programs.
  (f) Additional Authority.--The Secretary may enter into agreements 
and contracts with Federal and non-Federal entities, acquire and 
transfer interests in land, water, and facilities, and accept or give 
grants in order to carry out the purposes of this Act.
  (g) Indian Trust Assets.--The Congress finds that much of the 
potential water development in the San Juan River Basin and in the 
Duchesne River Basin (a subbasin of the Green River in the Upper 
Colorado River Basin) is for the benefit of Indian tribes and most of 
the federally designated critical habitat for the endangered fish 
species in the San Juan River Basin is on Indian trust lands, and 2\1/
2\ miles of critical habitat on the Duchesne River is on Indian Trust 
Land. Nothing in this Act shall be construed to restrict the Secretary, 
acting through the Bureau of Reclamation and the Bureau of Indian 
Affairs, from funding activities or capital projects in accordance with 
the Federal Government's Indian trust responsibility.
  (h) Termination of Authority.--All authorities provided by this 
section for the respective Recovery Implementation Program shall 
terminate upon expiration of the current time period for the respective 
Cooperative Agreement referenced in section 2(1) unless, at least one 
year prior to such expiration, the time period for the respective 
Cooperative Agreement is extended to conform with this Act.

SEC. 4. EFFECT ON RECLAMATION LAW.

  No provision of this Act nor any action taken pursuant thereto or in 
furtherance thereof shall constitute a new or supplemental benefit 
under the Act of June 17, 1902 (chapter 1093; 32 Stat. 388), and Acts 
supplemental thereto and amendatory thereof (43 U.S.C. 371 et seq.).

                          PURPOSE OF THE BILL

    The purpose of H.R. 2348 is to authorize the Bureau of 
Reclamation to provide cost sharing for the endangered fish 
recovery implementation programs for the Upper Colorado and San 
Juan River Basins.

                               BACKGROUND

    The Colorado River Basin is home to 14 native fish species. 
Eight of these have seriously declined, and four species--the 
Colorado pikeminnow (until recently it was known as the 
squawfish), razorback sucker, humpback chub and bonytail--are 
listed as endangered under the federal Endangered Species Act.
    Two cooperative intergovernmental programs have been 
established in the Upper Colorado River Basin to allow needed 
water use and development to continue to proceed in compliance 
with the federal Endangered Species Act. These are the Recovery 
Implementation Program for Endangered Fish Species in the Upper 
Colorado River Basin and the San Juan River Endangered Fish 
Recovery Implementation Program.
    The Upper Colorado Recovery Program was initiated by a 
Cooperative Agreement signed on January 21, 1988, by Secretary 
of the Interior Donald Hodel, the Governors of the States of 
Colorado, Utah and Wyoming and the Administrator of the Western 
Area Power Administration. The goal of the Upper Colorado 
Recovery Program is to recover the Colorado pikeminnow 
(Ptychocheilus lucius), humpback chub (Gila cypha), razorback 
sucker (Xyrauchen texanus) and bonytail (Gila elegans) while 
continuing to meet future water supply needs in the Upper Basin 
states of Colorado, Utah, Wyoming. It is the intent of the 
Committee that passage of this legislation and authorization of 
the program will assure that there are no additional adverse 
dam operational changes required. The States of Wyoming, 
Colorado and Utah, environmental organizations, power users, 
water users, the Bureau of Reclamation, the U.S. Fish and 
Wildlife Service (USFWS), and the Western Area Power 
Administration have been actively conducting and jointly 
managing the Recovery Program since its initiation in 1988.
    The States of Colorado and New Mexico, the Southern Ute 
Indian Tribe, the Ute Mountain Ute Indian Tribe, the Navajo 
Nation, the Jicarilla Apache Indian Tribe, the U.S. Bureau of 
Reclamation, the USFWS, the Bureau of Indian Affairs, the 
Bureau of Land Management and water users are the participants 
in the San Juan River Program. The Program was initiated by a 
Cooperative Agreement entered into on October 21, 1992, by the 
participating States and agencies, and has as its goal to 
recover the Colorado pikeminnow and the razorback sucker while 
continuing to meet present and future water needs in the Upper 
Basin States of Colorado and New Mexico.
    H.R. 2348 authorizes the Bureau of Reclamation to provide 
cost sharing for the endangered fish recovery implementation 
programs for the Upper Colorado and San Juan River Basins. The 
legislation would authorize $46 million to be paid by the 
federal government (non-reimbursable federal expenditure); $17 
million to be paid by the States; and $17 million from Colorado 
River Storage Project power revenues. The legislation indicates 
that the $17 million from the Colorado River Storage Project 
``shall be treated as reimbursable costs assigned to power for 
repayment under section 5 of the Colorado River Storage Project 
Act (43 U.S.C. 620 et seq.).''
    After the capital projects are constructed, power revenues 
will provide the annual ``base funding'' for the Recovery 
Implementation Program. This funding will be treated as having 
been repaid and returned to general fund of the Treasury as 
costs assigned to power for repayment under the Colorado River 
Storage Project Act. After fiscal year 2011, power revenues 
will continue to fund the operation and maintenance of capital 
projects and monitoring.

                            COMMITTEE ACTION

    H.R. 2348 was introduced on June 24, 1999, by Congressman 
James Hansen (R-UT). The bill was referred to the Committee on 
Resources, and within the Committee to the Subcommittee on 
Water and Power. On October 21, 1999, the Subcommittee held a 
hearing on the bill. On June 15, 1999, the Subcommittee met to 
mark up the bill. Congressman John Doolittle (R-CA) offered an 
amendment that altered the base-line funding of the project and 
required the USFWS to pay for the base-line funding. The 
amendment was adopted by voice vote. The bill, as amended, was 
then ordered to be reported to the Full Committee by voice 
vote. On June 20, 2000, the Full Resources Committee met to 
consider the bill. Congressman Hansen offered an amendment in 
the nature of a substitute that incorporated the language of 
H.R. 2348 as introduced. In addition, the language made several 
technical clarifications to the bill itself. The amendment was 
adopted by voice vote. The bill, as amended, was then ordered 
favorably reported to the House of Representatives by voice 
vote.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Purpose

    This section describes the intent of this legislation.

Section 2. Definitions

    This section provides definitions of terms used in the bill 
including: ``Recovery Implementation Programs'', ``Secretary'', 
``Upper Division States'', ``Colorado River Storage Project'', 
``capital projects'', ``facilities'', ``interests in land and 
water'', ``base funding'', ``recovery actions other than 
capital projects'', and ``depletion charge''.

Section 3. Authorization To Fund Recovery Programs

    This section authorizes the Upper Colorado and San Juan 
River Basins Fish Recovery Program that incorporates $46 
million as a non-reimbursable Federal expenditure; $17 million 
to be paid by the States; and $17 million from Colorado River 
Storage Project power revenues for fish and wildlife purposes.
    It is the intent of the Committee that passage of this 
legislation and the authorization of funding for the base line 
monitoring and research program will not expand to a basic 
science research program or a means to have the USFWS permit 
studies on issues not directly related to the operation of the 
capital projects. The Committee does not want the monitoring to 
expand beyond the scope of the authorized program as has been 
the case with the long-term monitoring and research program 
authorized in section 1805, under Public Law 102-575, of the 
Grand Canyon Protection Act.
    To prevent the unauthorized expansion of the monitoring and 
research program and overspending, the Committee expects the 
Secretary to include in the annual budget justification for the 
Bureau of Reclamation a detailed work program and budget 
information that includes staffing, overhead, tasks, and an 
explanation of the role the USFWS will play in the monitoring 
and research program. The Committee also expects that the 
budget justification, after fiscal year 2011, shall continue to 
include a projection for the monitoring and research program 
costs for each year after fiscal year 2011, until the 
monitoring has been completed. The Committee expects this 
information to be provided by the Secretary to this Committee, 
and to the Senate Energy and Natural Resources Committee.

Section 4. Effect on Reclamation Law

    This section makes clear that construction of facilities 
and acquisition of land and water rights shall not render those 
same subject to, or that funds received under this bill shall 
not be considered a supplemental or additional benefit under, 
the Reclamation Act of 1902 and acts supplementary thereto and 
amendatory thereof.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. While a cost estimate has 
been requested, it has not been received. The Committee 
believes that enacting this bill will not have a significant 
impact on the budget of the United States.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, the 
Committee does not believe that this bill contains any new 
budget authority, credit authority, or an increase or decrease 
in revenues or tax expenditures.
    3. Government Reform Oversight Findings. Under clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has not received a cost estimate for 
this bill from the Director of the Congressional Budget Office 
at the time this bill report was filed.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    This bill makes no changes in existing law.

                            DISSENTING VIEWS

    During the late 1950s and early 60s, the States of Wyoming, 
Utah and Colorado, along with personnel from the U.S. Fish and 
Wildlife Service participated in a project to ``rid the area of 
coarse fish . . .'' (i.e., several of these now endangered 
fish). This rotenoning project, ``which occurred between Sept. 
2 and Sept. 8, 1962, was supported by a majority of the public, 
according to interviewees and newspaper clippings.'' 
(Historical Accounts of Upper Colorado River Basin Endangered 
Fish, produced by the Information and Education Committee of 
the Upper Colorado River Basin. Page 38.) Now, Congress is 
asked to provide tens of millions of dollars to save the same 
fish they had earlier hoped to kill.
    H.R. 2348 fails to address three important policy issues 
regarding financial management and fiscal responsibility.
    First, the legislation fails to include the Fish and 
Wildlife Service (Service) as an active funding partner. When 
money is allocated from a specific agency, the agency makes 
decisions on how it should be allocated. Under the current 
bill, the Bureau of Reclamation is responsible for the 
construction costs of the project, and can properly budget for 
these costs. However, the Bureau of Reclamation and the Western 
Area Power Administration (WAPA) will be responsible for the 
O&M costs of facilities to be operated and maintained by the 
Service. This in effect, provides the Service a blank check for 
the O&M of the project, and its monitoring. If the legislation 
required the Service to pay these costs, then Congress would 
know whether this program, when competing against other Service 
priorities, is important enough for the Service to seek funding 
for the program.
    Second, the legislation proposes to utilize power revenues 
to pay for the base funding of the recovery program without 
effecting power rates. This has the effect of moving money from 
an existing repayment obligation to finance a new program, 
while at the same time crediting it to the Treasury as if the 
original debt had been repaid. Specifically, this occurs under 
Section 3(d)(1)(2) of the bill that requires the power revenue 
to continue to fund the operation and maintenance of capital 
projects and the continued monitoring of the recovery program. 
In effect, this legislation diverts money that should be paid 
to the Treasury for an existing obligation and uses it to pay 
for a new obligation.
    The third problem this type of financing mechanism causes 
is a lack of Congressional oversight. This type of funding 
outside of the ongoing scrutiny of the Congress, creates an 
opportunity for run away spending. Our experience with this 
mechanism has been disastrous both financially and 
administratively. This is most evident in P.L. 102-575, Section 
1805, the Grand Canyon Protection Act. The diversion of 
reimbursable power revenues to fund unrelated expenditures has 
resulted in more than a hundred million dollars in 
administrative studies being spent without effective 
Congressional oversight. Senate Report 106-000, the Energy and 
Water Development Appropriation Bill, on page 91, concerning 
the Grand Canyon Protection Act, states,

          In the past, the Committee has expressed concern 
        about the increasing funding requirements for and the 
        steadily expanding scope of activities of the Grand 
        Canyon Monitoring and Research Center. Funding levels 
        continue an upward trend and as a result, the Committee 
        has included a provision in the bill to limit funding 
        at the fiscal year 2000 level adjusted for inflation. 
        Limiting available funding will allow for work 
        prioritization, focusing on the most important 
        activities. The Committee encourages the agency to seek 
        additional funding from outside non-Federal sources if 
        necessary.

    The mistakes inherent in the funding approach used in the 
Grand Canyon Protection Act should not be duplicated. Once the 
monitoring begins, there should not be any unauthorized 
expansion of the monitoring and research program.

                                                 John T. Doolittle.

                                  
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