[Senate Report 108-249]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 466
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-249

======================================================================
 
  FISH PASSAGE AND SCREENING FACILITIES AT NON-FEDERAL WATER PROJECTS

                                _______
                                

                 March 29, 2004.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1307]

    The Committee on Energy and Natural Resources, to which was 
referred 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, having 
considered the same, reports favorably thereon with an 
amendment and recommends 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. 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) Grants and Cooperative Agreements.--Any financial assistance made 
available pursuant to this Act shall be provided through grant 
agreements or cooperative agreements entered into pursuant to and in 
compliance with chapter 63 of title 31, United States Code.
  (e) Terms and Conditions.--The Secretary may require such terms and 
conditions as will ensure performance by the non-Federal party, protect 
the Federal investment in fish passage and screening facilities or 
habitat improvements, define the obligations of the Secretary and the 
non-Federal party, and ensure compliance with this Act and all other 
applicable Federal, State, and local laws.
  (f) Rights and Duties of Non-Federal Parties.--All right and title 
to, and interest in, any fish passage and screening facilities 
constructed or funded pursuant to the authority of this Act shall be 
held by the non-Federal party or parties who own, operate, and maintain 
the non-Federal water diversion and storage project, and any associated 
lands, involved. The operation, maintenance, and replacement of such 
facilities shall be the sole responsibility of such party or parties 
and shall not be a project cost assignable to any Federal reclamation 
project.

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.

                         PURPOSE OF THE MEASURE

    The purpose of S. 1307 is 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.

                          BACKGROUND AND NEED

    In December 2000, NOAA issued a Biological Opinion on the 
Federal Columbia River Power System (FCRPS), operated by the 
Bureau of Reclamation (Reclamation), the U.S. Army Corps of 
Engineers (Corps), and Bonneville Power Administration. The 
Biological Opinion concluded that hydropower operations at both 
Reclamation and Corps facilities are insufficient to avoid 
jeopardy to 8 of the 12 Columbia River Basin salmon and 
steelhead species listed as threatened or endangered under the 
Endangered Species Act. To avoid jeopardy, the Biological 
Opinion proposes a reasonable and prudent alternative which 
includes certain ``off-site'' actions, such as significant 
improvements to habitat, hatcheries, and harvest.
    One of Reclamation's responsibilities under the Biological 
Opinion involves resolving fish passage and fish screening 
problems at non-Federal diversions in certain priority sub-
basins. The work will improve tributary habitat in up to 15 
sub-basins in the Columbia River Basin. Reclamation is 
currently using existing authority to perform technical 
assistance in some of these sub-basins located in Oregon, 
Washington, and Idaho. In its decision document accepting the 
requirements of the Biological Opinion, Reclamation agreed to 
seek the authority to fund construction of projects in order to 
implement fully its habitat improvement commitment under the 
Biological Opinion and to help overcome jeopardy from the 
operation of the FCRPS hydropower projects.
    In a challenge to the legal sufficiency of the 2000 FCRPS 
Biological Opinion, the Federal District Court of Oregon ruled 
that the Biological Opinion was flawed in that certain actions 
to be undertaken were not reasonably certain to occur, 
partially because the agencies lacked authority for those 
actions. S. 1307 is intended to resolve this authority issue 
for Reclamation's tributary habitat and fish passage 
improvement responsibilities.

                          LEGISLATIVE HISTORY

    S. 1307 was introduced by Senator Smith on June 20, 2003. 
The Subcommittee on Water and Power held a hearing on S. 1307 
on October 15, 2003. S. Hrg. 108-271. At the business meeting 
on March 10, 2004, the Committee on Energy and Natural 
Resources ordered S. 1307 favorably reported with an amendment 
in the nature of a substitute.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on March 10, 2004, by a unanimous voice vote 
of a quorum present, recommends that the Senate pass S. 1307, 
if amended as described herein.

                          COMMITTEE AMENDMENT

    During the consideration of S. 1307, the Committee adopted 
an amendment in the nature of a substitute to address concerns 
raised by the Administration during the October 15, 2003 Water 
and Power Subcommittee hearing. The amendment adds a cost-share 
provision and provides that in addition to fish passage and 
screening facilities, funds may also be used for habitat 
improvements. The amendment also deletes language in the bill 
as introduced pertaining to environmental compliance. The 
amendment does not authorize the acquisition of land for 
habitat improvements. The amendment is further described in the 
section-by-section.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 defines key terms used in the Act. Within the 
scope of fish passage improvement strategies, referred to in 
section 1(3), the Committee intends that non-Federal entities 
may seek funds under this Act to decommission facilities no 
longer needed.
    Section 2(a) authorizes the Secretary 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 in the Columbia 
River Basin. In authorizing the Secretary of the Interior, 
acting through the Bureau, to assist in the implementation of 
fish passage and screening facilities at non-Federal water 
projects, the Committee intends for the Secretary to give due 
deference to State priorities concerning the location of fish 
passage and screening facilities, and to work in close concert 
with the Governors of each State and appropriate State agencies 
to ensure coordination.
    Subsection (b) states that nothing in the Act authorizes 
the acquisition of land for habitat improvements.
    Section 3(a)(1) provides that the Secretary may only 
undertake the actions authorized in the Act 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.
    Subsection (b) limits the Federal share of the costs to 75 
percent.
    Subsection (c)(1) states that the written agreements 
between the Secretary and the non-Federal parties shall provide 
that the non-Federal party agrees to pay the non-Federal share 
of the total costs.
    Subsection (c)(2) allows the non-Federal share to be in the 
form of cash or in-kind services.
    Subsection (c)(3) is self-explanatory.
    Subsection (c)(4) is self-explanatory.
    Subsection (d) provides that any financial assistance made 
available under this Act shall be provided through grant 
agreements or cooperative agreements.
    Subsection (e) allows the Secretary to require terms and 
conditions to ensure performance by the non-Federal parties, 
protect Federal investments, define obligations of the 
Secretary and the non-Federal parties, and ensure compliance 
with all applicable Federal, State and local laws.
    Subsection (f) provides that all right and title to, and 
interest in, all fish passage and screening facilities 
constructed or funded under the Act shall be held by the non-
Federal parties. Additionally, this subsection provides that 
the operation, maintenance, and replacement of the facilities 
shall be the sole responsibility of the non-Federal parties and 
shall not be a project cost assignable to any Federal 
reclamation project.
    Section 4(a) allows the Secretary to assist a non-Federal 
party with obtaining or complying with any State, local, or 
tribal permits.
    Subsection (b) provides that 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.
    Subsection (c)(1) requires the Secretary to comply with any 
applicable State water laws.
    Subsection (c)(2) states that nothing in the Act affects 
any water or water-related right of a State, an Indian tribe, 
or any other person or entity.
    Subsection (d) requires the Secretary to coordinate with 
the Northwest Power and Conservation Council, appropriate State 
agencies, and appropriate Indian tribes in carrying out the 
programs authorized in the Act.
    Section 5(a) provides that the Reclamation Act of 1902 and 
Acts amendatory or supplementary thereof and thereto, shall not 
apply to the non-Federal water projects where fish passage and 
screening facilities authorized by this Act are located or to 
the lands irrigated by the projects.
    Subsection 5(b) provides that expenditures made by the 
Secretary pursuant to this Act are not project costs assignable 
to any Federal Reclamation project and are non-reimbursable and 
non-returnable to the United States Treasury.
    Section 6 authorizes appropriations.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 24, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1307, a bill to 
authorize the Secretary of the Interior, acting through the 
Bureau of Reclamation, to assist in the implementation of fish 
passage and screening facilities at nonfederal water projects, 
and for other purposes.
     If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Julie 
Middleton.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 1307--A bill to authorize the Secretary of the Interior, acting 
        through the Bureau of Reclamation, to assist in the 
        implementation of fish passage and screening facilities at 
        nonfederal water projects, and for other purposes

     Summary: S. 1307 would authorize the Bureau of Reclamation 
to participate in the planning and construction of fish passage 
and screening facilities and habitat improvement projects at 
nonfederal water storage projects located in the Columbia River 
Basin in the Pacific Northwest if the facilities would enable 
the bureau to meet its obligations under the Endangered Species 
Act. The federal share of the construction costs of such 
projects would not exceed 75 percent. In addition, the Federal 
government would not hold title to any fish passage or 
screening facilities constructed under this bill, nor would the 
Federal government be responsible for the operation and 
maintenance of those facilities.
     Assuming appropriation of the necessary amounts, CBO 
estimates that implementing S. 1307 would cost about $22 
million over the 2005-2009 period. This bill would not affect 
direct spending or revenues. S 1307 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.
     Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1307 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

 Estimated Authorization Level.....................................        4        4        5        5        6
 Estimated Outlays.................................................        3        3        5        5        6
----------------------------------------------------------------------------------------------------------------

     Basis of estimate: For this estimate, CBO assumes that S. 
1307 will be enacted before the end of fiscal year 2004 and 
that the necessary amounts will be appropriated in each fiscal 
year starting in 2005. Based on information from the Bureau of 
Reclamation and historical spending patterns of similar 
construction projects, CBO estimates that implementing the 
projects outlined in this bill would cost $22 million over the 
2005-2009 period.
     According to the bureau, hundreds of individual fish 
screening and fish passage projects could be constructed under 
this bill at an average cost of around $40,000 per project. CBO 
estimates that the Federal share of the cost of construction of 
these fish passage and screening facilities would be $4 million 
to $6 million annually over the 2005-2009 period. This estimate 
assumes that the bureau's efforts under the bill during the 
next several years would be limited to projects identified 
within the Federal Columbia River Power System, where the 
bureau currently has obligations under the Endangered Species 
Act. The bureau, however, would have the authority to 
participate in additional projects throughout the Columbia 
River Basin in order to meet any future obligations under the 
Endangered Species Act that have not yet been determined.
     Intergovernmental and private-sector impact: S. 1307 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
     Estimate prepared by: Federal Costs: Julie Middleton; 
Impact on State, Local, and Tribal Governments: Marjorie 
Miller; and Impact on the Private Sector: Selena Caldera.
     Estimate approved by: Robert A. Sunshine, Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1307. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1307, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    On March 5, 2004, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth executive views on S. 1307. These reports had not been 
received at the time the report on S. 1307 was filed. The 
testimony provided by the Department of the Interior at the 
Subcommittee hearing follows:

  Statement of John W. Keys, III, Commissioner, Bureau of Reclamation

    Madam Chair and Members of the Subcommittee, I am John 
Keys, Commissioner of the Bureau of Reclamation (Reclamation). 
I am pleased to be here today to present the Department of the 
Interior's (Department) views on S. 1307, which would authorize 
the Secretary of the Interior, acting through the Bureau of 
Reclamation, to assist in theimplementation of fish passage and 
screening facilities at non-federal water projects. As discussed more 
fully below, the Administration could support passage of this bill with 
the suggested modifications.
    Let me begin by saying that the Subcommittee is aware of 
the tremendous effort currently underway in the Pacific 
Northwest to address the needs of the many salmon and steelhead 
species listed as threatened and endangered under the 
Endangered Species Act (ESA). Congress has provided significant 
support to these efforts by providing authority and funding to 
numerous federal agencies to address the needs of the various 
life stages of these species.
    Among these efforts is a Biological Opinion issued by the 
National Marine Fisheries Service (now NOAA Fisheries) in 
December 2000 concerning the operation of the Federal Columbia 
River Power System (FCRPS) of the Columbia River. The FCRPS 
includes 14 major dams on the Columbia and Snake Rivers 
operated as an integrated system by the U.S. Army Corps of 
Engineers and Reclamation for flood control and hydropower 
generation. The Bonneville Power Administration transports and 
markets the power generated by the system. As required by 
section 7 of the ESA, these three action agencies have 
consulted with NOAA Fisheries on the operation of the FCRPS.
    In 2000, NOAA Fisheries found that the operation and 
configuration of the hydropower system could not be modified 
enough to prevent jeopardy to 8 of the 12 listed anadromous 
species affected by the system. Consequently, to avoid 
jeopardy, NOAA Fisheries identified a reasonable and prudent 
alternative which included numerous actions that could improve 
the survival of those species in what are known as the other 
``H's''-harvest, hatcheries and habitat. Among the actions 
recommended to Reclamation is a habitat initiative to improve 
tributary spawning and rearing conditions by working with 
private parties to screen diversions and to provide fish 
passage at non-federal water diversion structures. Screen and 
passage projects provide near-term benefits. There is an 
immediate benefit to the species by reducing fish mortality and 
providing access to better tributary migration, spawning, and 
rearing habitat. Improved adult access to tributary habitat 
produces more juveniles, and juveniles enjoy generally higher 
survival rates in the first spawning season in which these 
projects are in place.
    Reclamation currently has the authority to provide 
engineering design and environmental compliance assistance to 
the owners of non-federal water diversion facilities, but lacks 
the authority to fund the construction of fish screens and 
passage at such facilities. In its Findings and Commitments on 
the 2000 FCRPS Biological Opinion, Reclamation agreed to seek 
such authority from the Congress. The Administration requested 
this authority last year in a proposal that was provided to 
Congress. Although S. 1307 would not provide habitat 
restoration authority as requested in the Administration's 
proposal, it does provide much of the same authority as that 
proposed bill.
    The need for this authority has been highlighted in the 
ongoing litigation concerning the FCRPS Biological Opinion. In 
May of this year, the U.S. District Court for the District of 
Oregon ruled that the 2000 Biological Opinion is flawed because 
some anticipated future actions by federal agencies are not 
reasonably certain to occur. Reclamation's lack of authority to 
fund the construction of needed screen and migration barrier 
projects on non-federal facilities falls within this category. 
This deficiency would be eliminated by the passage of S. 1307.
    S. 1307 would also provide Reclamation with the authority 
to fund such screening and passage projects should they be 
necessary in order for the non-FCRPS Reclamation projects 
within the Columbia River Basin in the States of Washington and 
Oregon to comply with section 7(a)(2) of the ESA. At the 
request of Reclamation water users in Idaho, Reclamation 
projects in the Snake River Basin would not be included under 
this authority. A further provision of S. 1307 specifies that 
the authority would only be utilized when Reclamation 
determines that it would enable the agency to meet its 
obligations under section 7 of the ESA. The Administration 
supports these provisions.
    The legislation would also confirm that the ownership of 
non-federal projects and land, operation and maintenance 
responsibilities for those projects, and their affiliated water 
rights as defined by state water law, shall remain with the 
private owner. Moreover, section 5 of the bill specifies that 
these screen and fish passage projects are not Reclamation 
projects subject to federal reclamation law. We support these 
limitations as well.
    We note that owners of the non-federal projects receiving 
assistance under this legislation will benefit from bringing 
their facilities into compliance with the ESA. It is 
appropriate to require some degree of cost sharing from those 
individuals who may substantially benefit from these actions. 
We strongly encourage the Subcommittee to consider a cost-share 
requirement of 35 percent, including the value of in-kind 
services.
    In conclusion, if enacted, S. 1307 would provide 
Reclamation with much needed authority and flexibility in 
helping us comply with the ESA by avoiding jeopardy to 
endangered and threatened salmon species. We urge the 
Subcommittee to act expeditiously on this bill and to include 
an appropriate cost share provision. We stand ready to work 
with the Subcommittee in that regard.
    Madam Chair, this concludes my testimony. I welcome any 
questions that you or Members of the Subcommittee may have.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 1307, as 
ordered reported.

                                
