[House Report 111-481]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-481

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



 
       ENDANGERED FISH RECOVERY PROGRAMS IMPROVEMENT ACT OF 2010

                                _______
                                

  May 18, 2010.--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

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2288]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 2288) to amend Public Law 106-392 to maintain annual 
base funding for the Upper Colorado and San Juan fish recovery 
programs through fiscal year 2023, 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.

  This Act may be cited as the ``Endangered Fish Recovery Programs 
Improvement Act of 2010''.

SEC. 2. REAUTHORIZATION OF FISH RECOVERY PROGRAMS.

   Section 3(d)(2) of Public Law 106-392 (114 Stat. 1604 and 1605) is 
amended by inserting at the end the following: ``For fiscal years 2012 
through 2023, there are hereby authorized to be appropriated such sums 
as may be necessary to provide for the annual base funding for the 
Recovery Implementation Programs above and beyond the continued use of 
power revenues to fund the operation and maintenance of capital 
projects and monitoring.''.

                          Purpose of the Bill

    The purpose of H.R. 2288 is to amend Public Law 106-392 to 
maintain annual base funding for the Upper Colorado and San 
Juan fish recovery programs through fiscal year 2023.

                  Background and Need for Legislation

    The Colorado River Basin is home to 14 native fish species. 
Eight of those species have seriously declined, and four--the 
Colorado pikeminnow, razorback sucker, humpback chub and 
bonytail chub--are listed as endangered under the federal 
Endangered Species Act. One of the reasons for the decline has 
been the negative impacts on the fish associated with 
development of the water resources in the river basin.
    Two cooperative intergovernmental programs were established 
in 2000 in the Upper Colorado River Basin to allow water use 
and development to proceed while being in compliance with the 
federal Endangered Species Act. The Recovery Implementation 
Program for Endangered Fish Species in the Upper Colorado River 
Basin and the San Juan River Endangered Fish Recovery 
Implementation Program (recovery implementation programs) have 
been negotiated, legislated, and enacted to increase the 
certainty of available water to Upper Basin irrigation and 
other water users.
    The programs involved provide Endangered Species Act 
compliance for more than 1,600 federal, tribal, and non-federal 
water projects depleting more than 3 million acre-feet of water 
per year in the Upper Colorado and San Juan Rivers and their 
tributaries.
    Public Law 106-392 authorized the Bureau of Reclamation to 
allow cost sharing to augment base funding used for capital 
construction and the annual operations and maintenance for the 
recovery implementation programs through fiscal year 2011. The 
annual funding was established in the authorizing legislation 
at $6 million dollars, indexed for inflation. Funding for the 
programs comes from hydropower revenues generated from sales of 
hydroelectric energy and capacity from Colorado River Storage 
Project federal dams.

                            Committee Action

    H.R. 2288 was introduced on May 6, 2009, by Rep. John 
Salazar (D-CO). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Water and Power on May 11, 2009. On September 22, 2009, the 
Subcommittee held a legislative hearing on the bill. At the 
hearing, representatives from the Department of the Interior, 
the State of Wyoming, the Nature Conservancy, and the Colorado 
River Electrical Distribution Association testified in favor of 
H.R. 2288.
    On December 16, 2009, the Subcommittee was discharged from 
the further consideration of H.R. 2288 and the full Natural 
Resources Committee met to consider the bill. Subcommittee 
Chairwoman Grace Napolitano (D-CA) offered an amendment in the 
nature of a substitute to provide that funding authorized under 
the legislation for the recovery implementation programs be 
subject to the availability of appropriations.
    Rep. Tom McClintock (R-CA) offered an amendment to the 
amendment in the nature of a substitute that would deauthorize 
discretionary funding for the program if the Department of the 
Interior failed to submit a report on the program. That 
amendment was not adopted by a roll call vote of 17 yeas to 21 
nays, as follows:


    Rep. Paul Broun (R-GA) offered an amendment to the 
amendment in the nature of a substitute that would statutorily 
limit program overhead expenses to 11% of total funding. The 
amendment was not adopted by a roll call vote of 15 yeas to 24 
nays, as follows:


    The amendment in the nature of a substitute was then agreed 
to 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. Short title

    This section provides that this Act may be cited as the 
``Endangered Fish Recovery Programs Improvement Act of 2010.''

Section 2. Reauthorization of fish recovery programs

    Section 2 would amend Section 3 of Public Law 106-392 to 
authorize appropriations for the purpose of funding Bureau of 
Reclamation endangered fish recovery implementation programs 
for the Upper Colorado and San Juan River Basins for fiscal 
years 2012 through 2023.
    It is the intent of the Committee that the allocation of 
funding continue to address (1) habitat restoration and 
development, (2) nonnative fish management, (3) propagation and 
genetics management, (4) research and monitoring, (5) habitat 
management, (6) other recovery actions other than capital 
projects, (7) education and public involvement, and (8) program 
management. It is also the intent of the Committee that 
overhead charges should not exceed 13% in any given fiscal 
year.
    P.L. 106-392 required that by the fiscal year 2008 the 
Secretary of the Interior provide a report on the utilization 
of power revenues to fund the operation and maintenance of 
capital projects and monitoring. The initial report submitted 
in 2008 was not adequate to address the concerns of Congress. 
On December 14, 2009 the Assistant Secretary for Water and 
Science submitted a letter to the Committee concurring with the 
need to complete the report in a prompt manner. On April 28, 
2010 the Secretary of the Interior submitted a revised Report 
to Congress, Utilization of Power Revenues for Annual Base 
Funding of the Upper Colorado River and San Juan River Basin 
Recovery Implementation Programs.
    The Committee appreciates receiving the revised report and 
expects the Fish and Wildlife Service will continue to provide 
annual updates of the status and population levels of the four 
endangered fish in relation to the specific recovery goals for 
each species.

            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 amend Public Law 106-392 to 
maintain annual base funding for the Upper Colorado and San 
Juan fish recovery programs through fiscal year 2023.
    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. 2288--Endangered Fish Recovery Programs Improvement Act of 2009

    Summary: H.R. 2288 would authorize the appropriation of 
such sums as may be necessary over the 2012-2023 period to fund 
fish recovery programs in the Upper Colorado and San Juan River 
Basins. Under current law, the Secretary spends certain 
receipts collected by the Western Area Power Administration 
(WAPA) for those activities, without further appropriation. 
That authority expires at the end of fiscal year 2011.
    CBO estimates that implementing H.R. 2288 would cost $12 
million over the 2011-2015 period, subject to appropriation of 
the authorized amounts. (Additional costs of $3 million to $4 
million a year would continue for 2016 through 2023, subject to 
appropriation action.) Enacting the legislation would not 
affect direct spending or revenues.
    H.R. 2288 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 H.R. 2288 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--
                                                              --------------------------------------------------
                                                                2011    2012    2013    2014    2015   2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

estimated Authorization Level................................       0       3       3       3       3         12
Estimated Outlays............................................       0       3       3       3       3         12
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that this 
legislation will be enacted in 2010 and that the estimated 
amounts to implement the bill will be appropriated for each 
fiscal year beginning in 2012.
    H.R. 2288 would authorize the appropriation of whatever 
amounts are necessary to continue to fund fish recovery 
programs in the Upper Colorado and San Juan River Basins after 
the current authority expires. Based on information from the 
Bureau of Reclamation and WAPA, CBO estimates that those costs 
would be about $3 million a year over the 2012-2015 period, and 
$3 million to $4 million a year for 2016 through 2023.
    Intergovernmental and private-sector impact: H.R. 2288 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Previous CBO estimate: On January 28, 2010, CBO transmitted 
a cost estimate for S. 1453, the Bureau of Reclamation Fish 
Recovery Programs Reauthorization Act of 2009, as ordered 
reported by the House Committee on Natural Resources on 
December 16, 2009. While H.R. 2288 would authorize 
appropriations for fish recovery programs in the Upper Colorado 
and San Juan River Basins, S. 1453 would extend the Secretary 
of the Interior's current authority to spend WAPA proceeds 
through 2023, without further appropriation, for those 
programs. CBO estimates that S. 1453 would increase direct 
spending by $30 million over the 2011-2020 period and by 
another $12 million through 2023.
    Estimate prepared by: Federal Costs: Aurora Swanson, Impact 
on State, Local, and Tribal Governments: Melissa Merrell, 
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. 2288 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 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 Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                SECTION 3 OF THE ACT OF OCTOBER 30, 2000


                          (Public Law 106-392)

 AN ACT 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.

SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Base Funding.--(1) * * *
  (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. For 
fiscal years 2012 through 2023, there are hereby authorized to 
be appropriated such sums as may be necessary to provide for 
the annual base funding for the Recovery Implementation 
Programs above and beyond the continued use of power revenues 
to fund the operation and maintenance of capital projects and 
monitoring.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    H.R. 2288 has been introduced as a response to the 
Endangered Species Act, an unreasonable law that has 
impoverished millions of people in our nation, devastated the 
agricultural sector of our economy and threatens us all with 
permanent water and power shortages and higher food costs.
    This bill will spend $7 million per year through 2023 for 
research, management, operation and maintenance and other non-
capital expenditures in order to keep Endangered Species Act 
litigation at bay in the Upper Colorado and San Juan River 
basins. The goal of avoiding litigation so that water and power 
projects continue to operate is commendable and worthy, but we 
still have fiscal concerns with the program that is being re-
authorized in this bill.
    Specifically, there is not enough transparency in this 
program, explicit goals are not forthcoming and overhead is 
outrageously high. During the Natural Resources Committee 
markup in December 2009, the Democrat Majority voted down a 
Republican amendment that would have required the 
Administration to comply with existing law by submitting a 
report to Congress on the achievements of the program to date. 
American taxpayers and water and power users should know what 
they are being asked to pay for before another $100 million was 
thrown into the program. Despite the Majority's intransigence 
at the time, the current Administration finally submitted the 
report in April 2010. The report answered some questions, but 
failed to answer one key question: what are the specific 
recovery goals for each of the endangered fish species? By 
defining this goal, Congress and the American public will have 
a better understanding of when this program will achieve 
ultimate success so that taxpayer and ratepayer expenditures 
will no longer be necessary.
    The Democrat Majority also voted down a Republican 
amendment to reduce bureaucratic overhead from a current level 
of 22 percent in one program. Since taxpayer dollars will be 
spent on this program, more funds should be dedicated to actual 
on-the-ground fish recovery projects. An amendment aimed at 
cutting overhead in half was offered but failed to attract one 
Democrat vote in Committee. Undoubtedly, some overhead may be 
necessary in this program, but almost a quarter of every dollar 
being spent on overhead is unacceptable in these tight fiscal 
times.
    In summary, we view this as a well-intentioned program 
aimed at keeping water and power projects operating, but we 
hope that key reforms can be made to improve the program and, 
therefore, limit American taxpayer expenditures.

                                   Tom McClintock.
                                   Paul C. Broun.
                                   Doug Lamborn.

                                  
