[House Report 110-393]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-393

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



 
      PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM AND PATHFINDER 
                     MODIFICATION AUTHORIZATION ACT

                                _______
                                

October 22, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1462]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 1462) to authorize the Secretary of the Interior to 
participate in the implementation of the Platte River Recovery 
Implementation Program for Endangered Species in the Central 
and Lower Platte River Basin and to modify the Pathfinder Dam 
and Reservoir, 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 all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Platte River 
Recovery Implementation Program and Pathfinder Modification 
Authorization Act''.
  (b) Table of Contents.--The table of contents of this Act is as 
follows:

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

         TITLE I--PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM

Sec. 101. Definitions.
Sec. 102. Implementation of Program.
Sec. 103. Cost-sharing contributions.
Sec. 104. Authority to modify Program.
Sec. 105. Effect.
Sec. 106. Authorization of appropriations.
Sec. 107. Termination of authority.

               TITLE II--PATHFINDER MODIFICATION PROJECT

Sec. 201. Authorization of project.
Sec. 202. Authorized uses of pathfinder reservoir.

SEC. 2. PURPOSES.

  The purposes of this Act are to authorize--
          (1) the Secretary of the Interior, acting through the 
        Commissioner of Reclamation and in partnership with the States, 
        other Federal agencies, and other non-Federal entities, to 
        continue the cooperative effort among the Federal and non-
        Federal entities through the implementation of the Platte River 
        Recovery Implementation Program for threatened and endangered 
        species in the Central and Lower Platte River Basin without 
        creating Federal water rights or requiring the grant of water 
        rights to Federal entities; and
          (2) the modification of the Pathfinder Dam and Reservoir.

         TITLE I--PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM

SEC. 101. DEFINITIONS.

  In this title:
          (1) Agreement.--The term ``Agreement'' means the Platte River 
        Recovery Implementation Program Cooperative Agreement entered 
        into by the Governors of the States and the Secretary.
          (2) First increment.--The term ``First Increment'' means the 
        first 13 years of the Program.
          (3) Governance committee.--The term ``Governance Committee'' 
        means the governance committee established under the Agreement 
        and composed of members from the States, the Federal 
        Government, environmental interests, and water users.
          (4) Interest in land or water.--The term ``interest in land 
        or water'' includes a fee title, short- or long-term easement, 
        lease, or other contractual arrangement that is determined to 
        be necessary by the Secretary to implement the land and water 
        components of the Program.
          (5) Program.--The term ``Program'' means the Platte River 
        Recovery Implementation Program established under the 
        Agreement.
          (6) Project or activity.--The term ``project or activity'' 
        means--
                  (A) the planning, design, permitting or other 
                compliance activity, preconstruction activity, 
                construction, construction management, operation, 
                maintenance, and replacement of a facility;
                  (B) the acquisition of an interest in land or water;
                  (C) habitat restoration;
                  (D) research and monitoring;
                  (E) program administration; and
                  (F) any other activity that is determined to be 
                necessary by the Secretary to carry out the Program.
          (7) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior, acting through the Commissioner of Reclamation.
          (8) States.--The term ``States'' means the States of 
        Nebraska, Wyoming, and Colorado.

SEC. 102. IMPLEMENTATION OF PROGRAM.

  (a) In General.--The Secretary, in cooperation with the Governance 
Committee, may--
          (1) participate in the Program; and
          (2) carry out any projects and activities that are designated 
        for implementation during the First Increment.
  (b) Authority of Secretary.--For purposes of carrying out this title, 
the Secretary, in cooperation with the Governance Committee, may--
          (1) enter into agreements and contracts with Federal and non-
        Federal entities;
          (2) acquire interests in land, water, and facilities from 
        willing sellers without the use of eminent domain;
          (3) subsequently transfer any interests acquired under 
        paragraph (2); and
          (4) accept or provide grants.

SEC. 103. COST-SHARING CONTRIBUTIONS.

  (a) In General.--As provided in the Agreement, the participating 
States shall contribute not less than 50 percent of the total 
contributions necessary to carry out the Program.
  (b) Non-Federal Contributions.--The following contributions shall 
constitute the States' share of the Program:
          (1) $30,000,000 in non-Federal funds, with the balance of 
        funds remaining to be contributed to be adjusted for inflation 
        on October 1 of the year after the date of enactment of this 
        Act and each October 1 thereafter.
          (2) Credit for contributions of water or land for the 
        purposes of implementing the Program, as determined to be 
        appropriate by the Secretary.
  (c) In-Kind Contributions.--The Secretary or the States may elect to 
provide a portion of the Federal share or non-Federal share, 
respectively, in the form of in-kind goods or services, if the 
contribution of goods or services is approved by the Governance 
Committee, as provided in Attachment 1 of the Agreement.

SEC. 104. AUTHORITY TO MODIFY PROGRAM.

  The Program may be modified or amended before the completion of the 
First Increment if the Secretary and the States determine that the 
modifications are consistent with the purposes of the Program.

SEC. 105. EFFECT.

  (a) Effect on Reclamation Laws.--No action carried out under this 
title shall, with respect to the acreage limitation provisions of the 
reclamation laws--
          (1) be considered in determining whether a district (as the 
        term is defined in section 202 of the Reclamation Reform Act of 
        1982 (43 U.S.C. 390bb)) has discharged the obligation of the 
        district to repay the construction cost of project facilities 
        used to make irrigation water available for delivery to land in 
        the district;
          (2) serve as the basis for reinstating acreage limitation 
        provisions in a district that has completed payment of the 
        construction obligations of the district; or
          (3) serve as the basis for increasing the construction 
        repayment obligation of the district, which would extend the 
        period during which the acreage limitation provisions would 
        apply.
  (b) Effect on Water Rights.--Nothing in this title--
          (1) creates Federal water rights; or
          (2) requires the grant of water rights to Federal entities.

SEC. 106. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There is authorized to be appropriated to carry out 
projects and activities under this title $157,140,000, as adjusted 
under subsection (c).
  (b) Nonreimbursable Federal Expenditures.--Any amounts expended under 
subsection (a) shall be considered to be nonreimbursable Federal 
expenditures.
  (c) Adjustment.--The balance of funds remaining to be appropriated 
shall be adjusted for inflation on October 1 of the year after the 
enactment of this Act and each October 1 thereafter.
  (d) Availability of Funds.--At the end of each fiscal year, any 
unexpended funds for projects and activities made available under 
subsection (a) shall be retained for use in future fiscal years to 
implement projects and activities under the Program.

SEC. 107. TERMINATION OF AUTHORITY.

  The authority for the Secretary to implement the First Increment 
shall terminate on September 30, 2020.

               TITLE II--PATHFINDER MODIFICATION PROJECT

SEC. 201. AUTHORIZATION OF PROJECT.

  (a) In General.--The Secretary of the Interior, acting through the 
Commissioner of Reclamation (referred to in this title as the 
``Secretary''), may--
          (1) modify the Pathfinder Dam and Reservoir; and
          (2) enter into 1 or more agreements with the State of Wyoming 
        to implement the Pathfinder Modification Project (referred to 
        in this title as the ``Project''), as described in Appendix F 
        to the Final Settlement Stipulation in Nebraska v. Wyoming, 534 
        U.S. 40 (2001).
  (b) Federal Appropriations.--No Federal appropriations are required 
to modify the Pathfinder Dam under this section.

SEC. 202. AUTHORIZED USES OF PATHFINDER RESERVOIR.

  The approximately 54,000 acre-feet capacity of Pathfinder Reservoir, 
which has been lost to sediment but will be recaptured by the Project, 
may be used for municipal, environmental, and other purposes, as 
described in Appendix F to the Final Settlement Stipulation in Nebraska 
v. Wyoming, 534 U.S. 40 (2001).

                          PURPOSE OF THE BILL

    The purpose of H.R. 1462, as amended by the Committee on 
Natural Resources, is to authorize the Secretary of the 
Interior to participate in the implementation of the Platte 
River Recovery Implementation Program for Endangered Species in 
the Central and Lower Platte River Basin and to modify the 
Pathfinder Dam and Reservoir.

                  BACKGROUND AND NEED FOR LEGISLATION

    The North and South Platte Rivers begin in the eastern 
Rockies near the Continental Divide and combine to form the 
Platte River, which flows eastward through Nebraska for 330 
miles before joining the Missouri River near Plattsmouth, 
Nebraska. When combined with the North Platte, the Platte River 
is over 900 miles long, with a drainage basin of 90,000 square 
miles.
    Before the 1880s, the Platte River in Nebraska was a broad 
and braided river subject to high spring floods, high sediment 
loads, and occasional summer droughts. These conditions caused 
continuous movement of the braided river channels and sandbars, 
resulting in a broad, shallow, sandy channel, generally devoid 
of vegetation. This created an ideal habitat for many avian 
species and was a key part of the Central Flyway, a bird 
migratory route stretching from Canada to South Texas.
    In the early days of the frontier, the trade route to the 
west beyond the Rocky Mountains followed the North Platte 
River. Settlement in the North Platte Valley in western 
Nebraska began in the early 1880's. Rainfall was scarce and 
private irrigation was built without storage reservoirs. 
Shortly after enactment of the Reclamation Act of 1902, the 
Reclamation Service (now known as the Bureau of Reclamation) 
began studying water needs in the area. The North Platte 
Project was subsequently authorized in 1903.
    The North Platte Project's Pathfinder Dam was one of the 
first constructed by the Reclamation Service. The water storage 
and irrigation service areas for the North Platte Project 
extend 111 miles along the North Platte River Valley from 
Guernsey, Wyoming, to Bridgeport, Nebraska. The project 
provides full service irrigation for about 226,000 acres, 
divided into four irrigation districts. Supplemental irrigation 
service is furnished to eight water user associations serving a 
combined area of about 109,000 acres. Other smaller water 
projects have also been developed in the basin.
    Water development in the basin has caused significant 
changes in water flows and land use. With changes in the 
hydrology of the river and the structure of riparian habitats, 
the sustainability of migratory and resident birds and other 
animals has been compromised, and habitat for certain 
``targeted'' species has been adversely affected.
    The Platte River Recovery Implementation Program authorized 
by Title I of H.R. 1462, as amended, is designed to secure 
defined benefits for target species and their associated 
habitats while also providing Endangered Species Act (ESA) 
compliance for existing and certain new water related 
activities in the Platte River basin.
    The focus of the habitat recovery program is the 95 miles 
between Lexington and Chapman, Nebraska. Several species listed 
under the ESA use the Central Platte River Valley for habitat, 
including the four target species (whooping crane, piping 
plover, interior least tern, and pallid sturgeon). In addition, 
the Central Platte River Valley is an important migratory 
destination for the whooping crane.
    Over the last 150 years, as much as 90 percent of the 
habitat used by these three bird species along the Central 
Platte River has been lost. The goal of the Recovery Program is 
to revitalize the Platte River and increase downstream flows 
during certain times of the year by 130,000 to 150,000 acre-
feet. These actions are expected to enhance habitat and reduce 
the likelihood that other species found in the area will become 
listed as endangered or threatened.
    The recovery program is designed to be incremental, with 
the first increment spanning 13 years after enactment. A 
Governance Committee, comprised of representatives of the 
states of Wyoming, Colorado, and Nebraska, the Department of 
the Interior, water users, and environmental groups, implements 
and monitors the recovery efforts.
    In addition to restoring flows in the river, the Program 
would protect, restore, and maintain up to 29,000 acres of 
habitat lands along the central Platte River between Lincoln 
and Chapman, Nebraska. 10,000 acres in the project area are 
slated for restoration in the first 13 years of the program.
    Water for this program will be provided by the three states 
and from a number of small water projects in the Basin.
    Title II of H.R. 1462, as amended, authorizes the 
Pathfinder Modification Project. This project is required by a 
legal settlement and is the key part of Wyoming's share of 
water for the Platte River Recovery Implementation. The 
modification would increase the existing capacity of Pathfinder 
Reservoir by 53,493 acre-feet to recapture storage space lost 
to accumulated sediment. The increased capacity is accomplished 
by raising the elevation of the existing spillway 2.4 feet.

                            COMMITTEE ACTION

    H.R. 1462 was introduced on March 9, 2007 by Rep. Mark 
Udall (D-CO). The bill was referred to the Committee on Natural 
Resources, and within the Committee to the Subcommittee on 
Water and Power. On April 26, 2007, the Subcommittee held a 
hearing on the bill. On June 12, 2007, the Subcommittee met to 
mark up the bill. The bill was approved by unanimous consent 
and forwarded to the Full Committee on Natural Resources. On 
October 10, 2007, the Full Natural Resources Committee met to 
consider the bill. Subcommittee Chairwoman Grace Napolitano 
offered an amendment to clarify Sec. 103, at the request of the 
Administration. The bill, as amended, was agreed to by 
unanimous consent and was ordered favorably reported to the 
House of Representatives.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title; Table of contents

    Sec. 1 designates the short title of the bill as the 
``Platte River Recovery Implementation Program and Pathfinder 
Modification Authorization Act''.

Section 2. Purposes

    The legislation authorizes Secretary of the Interior to 
continue the cooperative effort among the federal and non-
federal entities in the Platte River Recovery Implementation 
Program for threatened and endangered species, and to make 
modification of Pathfinder Dam and Reservoir.

         TITLE I--PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM


Section 101. Definitions

Section 102. Implementation of program

    Sec. 102 authorizes the Secretary of the Interior to 
participate in the Platte River Recovery Implementation Program 
and, in cooperation with the Governance Committee, to carry out 
any projects or activities that are designated for 
implementation during the Program's first 13 years (First 
Increment). The Secretary is also authorized in this section, 
in cooperation with the Governance Committee, to (1) enter into 
agreements with federal and non-federal groups; (2) acquire 
interests in land, water, and facilities from willing sellers; 
(3) transfer acquired interests; and (5) accept or provide 
grants.
    The Committee is aware that the success of the Program is 
dependent on a number of factors, including a workable, 
results-oriented and efficient Adaptive Management Program and 
consistent communication with stakeholders. As such, the 
Committee expects the Governance Committee to work 
cooperatively with all relevant interests, including the 
affected local communities, as it relates to the how the 
Program's goals are being met and how activities may affect 
landowners. Since the States retain the ability to withdraw 
from the agreement at any time for any reason, the Committee 
strongly encourages the Governance Committee to hold public 
forums regularly to help stakeholders and the general public 
better understand the Program's objectives and impacts.

Section 103. Cost-sharing contributions

    This section requires that the states of Wyoming, Colorado, 
and Nebraska will contribute at least half of the cost of the 
project, and sets forth details of the non-federal share, which 
will consist of non-federal funds, with credit towards the non-
federal share given to contributed land and water. Provision is 
also made in this section for federal or non-federal in-kind 
contributions.

Section 104. Authority to modify program

    Sec. 104 allows the Program to be modified before the 
completion of the First Increment if the Secretary and the 
states of Nebraska, Wyoming, and Colorado determine that the 
modifications are consistent with program purposes.

Section 105. Effect

    Sec. 105 states that under Title I, no action will affect 
acreage limitations under reclamation law and will not create 
or grant federal water rights.

Section 106. Authorization of appropriations

    Sec. 106 authorizes $157,140,000 in nonreimbursable funds 
for Title I, to be adjusted annually for inflation.

Section 107. Termination of authority

    This section terminates the Secretary's authority to 
implement the First Increment on September 30, 2020.

               TITLE II--PATHFINDER MODIFICATION PROJECT


Section 201. Authorization of project

    Sec. 201 authorizes the Secretary of the Interior to modify 
Pathfinder Dam and Reservoir in agreement with the State of 
Wyoming, and states that no federal appropriations are required 
for the modification of Pathfinder Dam.

Section 202. Authorized used of Pathfinder Reservoir

    Sec. 202 states that the 54,000 acre-feet of recaptured 
capacity of Pathfinder Reservoir may be used for municipal, 
environmental, and other purposes.

            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 Natural 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.
    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, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to authorize the Secretary of the 
Interior to participate in the implementation of the Platte 
River Recovery Implementation Program for Endangered Species in 
the Central and Lower Platte River Basin and to modify the 
Pathfinder Dam and Reservoir.
    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 received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 1462--Platte River Recovery Implementation Program and Pathfinder 
        Modification Authorization Act

    Summary: H.R. 1462 would authorize the Secretary of the 
Interior to implement a program to aid the recovery of certain 
species with habitats in the Platte River basin that are listed 
as either threatened or endangered under the Endangered Species 
Act (ESA). The bill also would authorize the Secretary to 
modify the Pathfinder Dam and Reservoir in Wyoming.
    CBO estimates that implementing H.R. 1462 would cost $66 
million over the 2008-2012 period, assuming appropriation of 
the authorized amounts. Enacting the bill would not affect 
direct spending or revenues.
    H.R. 1462 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA), 
and any costs to states to match federal assistance authorized 
by the bill would be incurred voluntarily.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 1462 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--
                                                               -------------------------------------------------
                                                                  2008      2009      2010      2011      2012
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.................................        12        15        16        16        16
Estimated Outlays.............................................         7        12        15        16        16
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the start of fiscal year 2008 and 
that the necessary amounts will be appropriated near the start 
of each fiscal year. Estimates of outlays are based on 
historical spending patterns for similar activities.
    In 1997, the Department of the Interior signed a 
cooperative agreement with Colorado, Wyoming, and Nebraska to 
develop a program for wildlife protection along the Platte 
River. In late 2006, the Secretary and the governor of each 
state signed the Platte River Recovery Implementation Program. 
The program aims to restore and conserve the habitat of four 
threatened and endangered species in the Platte River basin. 
The program will be carried out in incremental stages.
    Title I would authorize the Secretary to participate in the 
first increment of the program in cooperation with Nebraska, 
Wyoming, and Colorado. Based on information provided by the 
Bureau of Reclamation, CBO estimates that implementing the 
recovery program in title I would cost $66 million over the 
2008-2012 period and an additional $108 million through 2020. 
The Department of the Interior would use the appropriations to 
acquire land and water interests and undertake habitat 
restoration and other activities deemed necessary by the 
Secretary.
    Title II of the bill would authorize the Secretary to 
modify the Pathfinder Dam and Reservoir in Wyoming. The 
Secretary would be authorized to enter into agreements with the 
state of Wyoming to implement the modifications. The state 
would be responsible for all costs of the modification. Hence 
CBO estimates that the federal government would incur no 
significant costs to implement title II.
    Intergovernmental and private-sector impact: H.R. 1462 
contains no intergovernmental or private-sector mandates as 
defined in UMRA, and any costs to states to match federal 
assistance authorized by the bill would be incurred 
voluntarily.
    Estimate prepared by: Federal costs: Tyler Kruzich; Impact 
on state, local, and tribal governments: Leo Lex; Impact on the 
private-sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 1462 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

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

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                                  
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