[Senate Report 110-387]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 819
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-387

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



 
      LOWER COLORADO RIVER MULTI-SPECIES CONSERVATION PROGRAM ACT

                                _______
                                

                 June 16, 2008.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 2515]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 2515) to authorize appropriations for 
the Bureau of Reclamation to carry out the Lower Colorado River 
Multi-Species Conservation Program in the States of Arizona, 
California, and Nevada, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the Act, 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. SHORT TITLE.

  This Act may be cited as the ``Lower Colorado River Multi-Species 
Conservation Program Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Lower colorado river multi-species conservation 
        program.--The term ``Lower Colorado River Multi-Species 
        Conservation Program'' or ``LCR MSCP'' means the cooperative 
        effort on the Lower Colorado River between Federal and non-
        Federal entities in Arizona, California, and Nevada approved by 
        the Secretary of the Interior on April 2, 2005.
          (2) Lower colorado river.--The term ``Lower Colorado River'' 
        means the segment of the Colorado River within the planning 
        area as provided in section 2(B) of the Implementing Agreement, 
        a Program Document.
          (3) Program documents.--The term ``Program Documents'' means 
        the Habitat Conservation Plan, Biological Assessment and 
        Biological and Conference Opinion, Environmental Impact 
        Statement/Environmental Impact Report, Funding and Management 
        Agreement, Implementing Agreement, and Section 10(a)(1)(B) 
        Permit issued and, as applicable, executed in connection with 
        the LCR MSCP, and any amendments or successor documents that 
        are developed consistent with existing agreements and 
        applicable law.
          (4) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (5) State.--The term ``State'' means each of the States of 
        Arizona, California, and Nevada.

SEC. 3. IMPLEMENTATION AND WATER ACCOUNTING.

  (a) Implementation.--The Secretary is authorized to manage and 
implement the LCR MSCP in accordance with the Program Documents.
  (b) Water Accounting.--The Secretary is authorized to enter into an 
agreement with the States providing for the use of water from the Lower 
Colorado River for habitat creation and maintenance in accordance with 
the Program Documents.

SEC. 4. ENFORCEABILITY OF PROGRAM DOCUMENTS.

  (a) In General.--Any party to the Funding and Management Agreement or 
the Implementing Agreement, and any permittee under the Section 
10(a)(1)(B) Permit, may commence a civil action in United States 
district court to adjudicate, confirm, validate or decree the rights 
and obligations of the parties under those Program Documents.
  (b) Jurisdiction.--The district court shall have jurisdiction over 
such actions and may issue such orders, judgments, and decrees as are 
consistent with the court's exercise of jurisdiction under this 
section.
  (c) United States as Defendant.--
          (1) In general.--The United States or any agency of the 
        United States may be named as a defendant in such actions.
          (2) Sovereign immunity.--Subject to paragraph (3), the 
        sovereign immunity of the United States is waived for purposes 
        of actions commenced pursuant to this section.
          (3) Nonwaiver for certain claims.--Nothing in this section 
        waives the sovereign immunity of the United States to claims 
        for money damages, monetary compensation, the provision of 
        indemnity, or any claim seeking money from the United States.
  (d) Rights Under Federal and State Law.--Except as specifically 
provided in this section, nothing in this section limits any rights of 
any party under Federal or State law.
  (e) Venue.--Any suit pursuant to this section may be brought in any 
United States district court in the State in which any non-Federal 
party to the suit is situated.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There is authorized to be appropriated to the 
Secretary such sums as may be necessary to meet the obligations of the 
Secretary under the Program Documents, to remain available until 
expended.
  (b) Non-Reimbursable and Non-Returnable.--All amounts appropriated to 
and expended by the Secretary for the LCR MSCP shall be non-
reimbursable and non-returnable.

                         PURPOSE OF THE MEASURE

    The purpose of H.R. 2515 is to authorize appropriations for 
the Bureau of Reclamation to carry out the Lower Colorado River 
Multi-Species Conservation Program in the States of Arizona, 
California, and Nevada, and for other purposes.

                          BACKGROUND AND NEED

    The Lower Colorado River Multi-Species Conservation Program 
(MSCP) is a cooperative effort among 50 federal and non-federal 
entities in Arizona, California, and Nevada to protect 27 
endangered, threatened and sensitive species on the Lower 
Colorado River (from Lake Mead to the Mexican border--
approximately 400 river miles). Implementation and compliance 
with the program provides the basis for incidental take 
authorizations under the Endangered Species Act (ESA), which 
allows affected water and power agencies in the three states to 
continue operations under specified conditions.
    Specifically, the MSCP is defined by several program 
documents including a habitat conservation plan, biological 
assessment, biological opinion, and an environmental impact 
statement. The Program is expected to create over 8,100 acres 
of riparian, marsh, and backwater habitat for the covered 
species, and is to rear and stock over 1.2 million fish to 
augment populations of the two endangered fish at issue. The 
MSCP also provides for maintenance of existing high-quality 
habitat, and a research, monitoring, and adaptive management 
effort to ensure that Program elements are effective in helping 
conserve covered species. Overall, it is expected that the MSCP 
will cost over $600,000,000 (2003 dollars) over a 50-year time 
frame. These costs are to be split 50/50 between the federal 
government and the participating non-federal entities. H.R. 
2515 will ensure that the program is implemented consistent 
with the program documents.

                          LEGISLATIVE HISTORY

    H.R. 2515 was introduced by Rep. Dean Heller on May 24, 
2007, and referred to the Committee on Natural Resources. 
Representatives Shelley Berkley, Ken Calvert, Trent Franks, 
Harry Mitchell, Jon Porter, George Radonovich, Rick Renzi, and 
John Shadegg are co-sponsors. Under suspension of the rules, 
H.R. 2515 passed the House of Representatives on March 31, 2008 
and was referred to the Committee on Energy and Natural 
Resources. A companion measure, S. 300 was introduced by 
Senator Kyl on January 16, 2007, and referred to the Committee 
on Energy and Natural Resources. Senators Reid, Ensign, and 
Feinstein are co-sponsors. The Subcommittee on Water & Power 
held a hearing on S. 300 on July 26, 2007. (S. Hrg. 110-152.) 
At its business meeting on May 7, 2008, the Committee on Energy 
and Natural Resources ordered H.R. 2515 favorably reported as 
amended.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on May 7, 2008, by voice vote of a quorum 
present, recommends that the Senate pass H.R. 2515, if amended 
as described herein.

                          COMMITTEE AMENDMENT

    During the consideration of H.R. 2515, the Committee 
adopted a substitute amendment to improve the bill. The 
substitute amendment modifies definitions contained in the 
bill, removes provisions unnecessary to implement the program, 
and modifies a provision providing a limited waiver of the 
United States' sovereign immunity to allow the non-Federal 
parties to seek enforcement of the program documents.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title of the Act.
    Section 2 defines terms used in the Act.
    Section 3(a) authorizes the Secretary to participate in the 
MSCP consistent with the program documents.
    Section 3(b) authorizes the Secretary to enter into an 
agreement with the States of Arizona, Nevada, and California 
concerning the use of Colorado River water for purposes of 
implementing the MSCP. The agreement is expected to be executed 
after enactment of the bill.
    Section 4(a) authorizes any party to certain agreements 
related to the MSCP, or a permittee under the ESA, to commence 
a civil suit in Federal court to adjudicate rights and 
obligations under the MSCP.
    Section 4(b) establishes jurisdiction by the Federal 
district court over actions authorized by subsection (a).
    Section 4(c) establishes that the United States' sovereign 
immunity is waived for the limited purposes set forth, and that 
it may be named as a defendant in actions authorized by 
subsection (a).
    Section 4(d) disclaims that anything in section 4 limits 
any rights under Federal or state law, except as may be 
specifically provided.
    Section 4(e) declares the proper venue for actions brought 
under section 4.
    Section 5(a) authorizes appropriations for the Federal 
share of the MSCP.
    Section 5(b) declares that any amounts appropriated and 
expended are non-reimbursable to the United States.

                   COST AND BUDGETARY CONSIDERATIONS

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

H.R. 2515--Lower Colorado River Multi-Species Conservation Program Act

    H.R. 2515 would authorize the Secretary of the Interior to 
participate in the Lower Colorado River Multi-Species 
Conservation Program. That program is a collaborative effort 
between the federal government and entities in the states of 
Nevada, Arizona, and California to address the needs of 
threatened and endangered fish and wildlife along the lower 
Colorado River while ensuring consistent water and electric 
power deliveries to the states involved in the program.
    Based on information from the Bureau of Reclamation, CBO 
estimates that implementing the program would cost 
approximately $70 million over the next five years and several 
hundred million dollars over the 50-year life of the program. 
The bureau, however, has been implementing the program since 
2005 under existing authorities, and this legislation would not 
authorize any activities beyond those in which the bureau 
already is engaged. Hence, CBO estimates that implementing this 
act would not significantly affect the federal budget. Enacting 
the legislation would not affect direct spending or revenues.
    H.R. 2515 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On March 24, 2008, CBO transmitted a cost estimate for H.R. 
2515, the Lower Colorado River Multi-Species Conservation 
Program Act, as ordered reported by the House Committee on 
Natural Resources on March 12, 2008. The two versions of the 
legislation are similar, and the estimated costs are the same.
    The CBO staff contact for this estimate is Tyler Kruzich. 
This estimate was approved by Theresa Gullo, Deputy 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 H.R. 2515. 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 H.R. 2515, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    H.R. 2515, as reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined by rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the Bureau of Reclamation at the 
Senate Committee on Energy and Natural Resources subcommittee 
hearing on companion measure S. 300 follows:

 Statement of Larry Todd, Deputy Commissioner, Bureau of Reclamation, 
                       Department of the Interior

    Mr. Chairman and members of the Subcommittee, my name is 
Larry Todd and I am here today to present the views of the 
Department of the Interior on S. 300, a bill to authorize a 
habitat conservation program on the lower Colorado River in the 
States of Arizona, California, and Nevada.
    S. 300 authorizes the Lower Colorado River Multi-Species 
Conservation Program (LCR MSCP) and addresses issues associated 
with implementation of the program, including Colorado River 
water use, investment of appropriated funds, and the 
enforceability of program documents. The Lower Colorado River 
is a critical resource to citizens of the Southwest. 
Maintaining compliance with the Endangered Species Act and 
avoiding water supply conflicts that have been occurring in 
other areas of the West is critical to the Department. The 
Department supports the LCR MSCP as well as the intent of S. 
300 to further this program. However, the Department remains 
concerned about language in Section 2, 4(b), 5(c), and 5(d), 
which I will discuss below.
    The LCR MSCP was developed through a collaborative 
partnership with State leaders, local stakeholders and the 
Administration. This innovative program addresses the needs of 
threatened and endangered fish and wildlife on the lower 
Colorado River while assuring greater reliability of water 
deliveries and hydropower production. By meeting the needs of 
fish and wildlife listed under the Endangered Species Act, as 
well as preventing the need to list additional species, the 
plan provides greater certainty of continued water and power 
supplies from the river for Nevada, California and Arizona--and 
is designed to allow future water transfers within or among 
water users for a 50-year period.
    Reclamation began work to develop the LCR MSCP in 1997 and 
the program was formally approved and adopted by Secretary 
Norton in 2005. Under existing authorities, Reclamation has 
been implementing activities that are similar in nature to 
those described in this program since 1997 when the U.S. Fish 
and Wildlife Service issued a Biological Opinion for 
southwestern willow flycatcher, bony tail chub, Yuma clapper 
rail and razorback sucker fish. In 2001, Reclamation adopted 
interim Surplus Guidelines that define when water operations 
can provide surplus water to water users in the Lower Colorado 
River Basin, and the Biological Opinion for that action is 
being implemented through the LCR MSCP. With these and other 
actions, Reclamation has been meeting the requirements of the 
Endangered Species Act (ESA) for over a decade.
    Reclamation has spent a total of $9.5 million in FY2004 and 
FY2005, and spent $13 million in FY2006 from both Federal and 
non-Federal sources pursuant to the Program's Funding and 
Management Agreement with non-Federal entities. The LCR MSCP 
Steering Committee supports a budget of over $16 million for FY 
2007. In addition to establishing over 270 acres of new habitat 
along the Colorado River, Reclamation has stocked 46,079 
razorback suckers and 14,836 bony tail chub into the lower 
Colorado River since 2004. A significant amount of money has 
been spent on the research and monitoring needed to develop a 
sound scientific foundation for this 50-year program. 
Accomplishment reports for FY2004 and FY2005 have been approved 
by the MSCP Steering Committee, reviewed by the U.S. Fish and 
Wildlife Service, and found to be in compliance with the LCR 
MSCP ESA Section 10 Permit. The FY2006 report has been approved 
by the Steering Committee and U.S. Fish and Wildlife Service. 
All reports can be found on Reclamation's website at 
www.lcrmscp.gov.
    In Reclamation's FY2008 budget, which is awaiting 
Congressional approval, $7 million has been identified from 
Federal funding for the program, with a $7 million match from 
non-Federal partners.
    Since presenting testimony on H.R. 5180 last year, the 
Department is pleased to report progress toward resolving 
issues surrounding section 3(b). As written, this Section would 
direct the Secretary to enter into an agreement with the States 
of Arizona, California and Nevada providing for the use of 
Colorado River water specifically for habitat creation and 
maintenance purposes. The Department believes that through 
existing contract terms, willing seller transactions, and 
current policies, Reclamation can utilize Colorado River (and 
non-Colorado River) water to implement the program. However, 
Reclamation has made progress with our funding partners in the 
Lower Basin States to develop an agreement acceptable to all 
parties on the use of Colorado River water for program 
purposes. Such an agreement could facilitate program 
implementation, and we look forward to continuing productive 
efforts with our partners on this proposed agreement.
    We do have a couple of concerns with provisions contained 
in S. 300. The geographic definition of the Lower Colorado 
River in section 2 should be clarified to match that contained 
in the MSCP Program Documents. The Administration cannot 
support the language in section 4(b) of this bill allowing the 
Secretary to invest appropriated moneys that are not required 
to meet current program expenditures. Investing appropriations 
provides additional moneys to finance a governmental purpose 
outside of the normal appropriations process.
    We are also concerned about section 5(c), which addresses 
judicial review of program documents. We note that this 
provision has been modified from the language introduced in the 
last session of Congress, and that language has been added 
clarifying that the United States would not be liable for 
claims for money damages. Nevertheless, we have been advised by 
the Department of Justice and we are concerned that this 
provision could expand Federal litigation exposure in 
significant respects and open the door for judicial intrusion 
into administrative decision making. We would appreciate the 
opportunity to continue to work with the committee to address 
our concerns regarding section 5(c).
    Section 5(d) seeks an explicit exemption from the Federal 
Advisory Committee Act. The Department believes that this 
exemption is not necessary as the program was determined by the 
Director of the U.S. Fish and Wildlife Service to be an 
Ecosystem Recovery and Implementation Team (ECRIT) pursuant to 
section 4(f)(2) of the ESA, thereby making the LCR MSCP 
Steering Committee exempt. Therefore, we believe section 5(d) 
is superfluous and we recommend deleting it.
    The Department already has clear authorities to administer 
this program under existing statutes, and Reclamation began 
actively implementing the full LCR MSCP program in 2005. 
Through implementation of this program, the likelihood of a 
water conflict on the lower Colorado River is reduced.
    The Department supports the LCR MSCP and will continue to 
work with interested stakeholders that seek to enhance the 
program. Thank you for the opportunity to comment on this 
legislation. We look forward to working with you on the various 
concerns we have. I am happy to take any questions.

                        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 H.R. 2515, as 
ordered reported.

                                  
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