[House Report 115-567]
[From the U.S. Government Publishing Office]


115th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                    {       115-567

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



 
        ENDANGERED FISH RECOVERY PROGRAMS EXTENSION ACT OF 2017

                                _______
                                

 February 16, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 4465]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4465) to maintain annual base funding for the 
Upper Colorado and San Juan fish recovery programs through 
fiscal year 2023, to require a report on the implementation of 
those programs, and for other purposes, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 4465 is to maintain annual base funding 
for the Upper Colorado and San Juan fish recovery programs 
through fiscal year 2023, and to require a report on the 
implementation of those programs.

                  Background and Need for Legislation

    The Upper Colorado and San Juan River Basins provide key 
sources of water in the western United States. The Bureau of 
Reclamation has constructed numerous water and power projects 
to store and use the water for irrigation, drinking water, 
hydropower and flood control purposes, and to benefit 
recreation and fish and wildlife in the western United States. 
Projects include the Colorado River Storage Project's (CRSP) 
Flaming Gorge Unit, which can store over 3.5 million acre feet 
of water (one acre foot is 325,851 gallons) and can generate 
over 150 megawatts of power (one megawatt can supply up to 
1,000 homes).\1\ The three dams that make up the Aspinall Unit, 
also in the CRSP system, store more than 1 million acre feet of 
water\2\ and can generate more than 275 megawatts of power.\3\ 
While Flaming Gorge, the Aspinall Unit, and other CRSP projects 
and non-federal projects played a core role in western 
settlement, they continue to be economically important and 
financially self-sustaining today and into the future.
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    \1\United States Bureau of Reclamation, CRSP Flaming Gorge Unit 
Operations, http://www.usbr.gov/uc/rm/crsp/fg/fgOps.html, November 25, 
2008.
    \2\United States Bureau of Reclamation, CRSP Aspinall Unit 
Operations, http://www.usbr.gov/uc/rm/crsp/aspinall/index.html, 
September 29, 2008.
    \3\Leslie James, Executive Director, Colorado River Energy 
Distributors Association, Testimony Before the House of Representatives 
Water and Power Subcommittee, http://naturalresources.house.gov/
UploadedFiles/JamesTestimony09.22.09.pdf September 22, 2009.
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    The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 
seq.) has significant impacts on the CRSP and other Reclamation 
and non-federal water projects. The Colorado and San Juan 
Rivers are home to 14 native fish species. Four of these 
species--the Colorado pikeminnow, razorback sucker, humpback 
chub and bonytail--are listed as ``endangered'' under the ESA. 
Those designations led to the threat of water and power-use 
restrictions. As a result, the States of Colorado, New Mexico, 
Utah and Wyoming signed cooperative agreements with the federal 
government in 1988 and 1992 to help achieve the dual goals of 
recovering endangered fish populations while continuing water 
and power facility development and operations.\4\ Other 
partners include water and power users, tribes and 
environmental organizations.
---------------------------------------------------------------------------
    \4\http://www.coloradoriverrecovery.org/general-information/
about.html.
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    These cooperative agreements led to the creation of the 
Upper Colorado and San Juan Recovery Implementation Programs 
(Programs) to help provide ESA compliance for over 2,300 water 
and power projects\5\ that withdraw more than 3 million acre 
feet of water.\6\ The Programs' goals are to recover the 
humpback chub, razorback sucker, bonytail and the Colorado 
pikeminnow while continuing facility operations to meet current 
and future human needs, with the ultimate goals of species 
delisting. Furthermore, genetically diverse, hatchery-based 
fish are raised at federal, State and tribal hatcheries. These 
hatchery-raised fish help establish sustainable species 
populations since the hatchery-produced fish are counted as 
part of the recovery criteria under the ESA once they reach 
adult status.\7\
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    \5\Upper Colorado River Endangered Fish Recovery Program and San 
Juan River Basin Recovery Implementation Program, Implementing 
Innovative Solutions to Manage Water and Hydropower Resources While 
Recovering Endangered Species, Highlights 2011-2012, http://
www.coloradoriverrecovery.org/general-information/general-publications/
briefingbook/2012BriefingBook.pdf, July 5, 2012.
    \6\United States Department of the Interior, Utilization of Power 
Revenues for Annual Base Funding of the Upper Colorado River and San 
Juan River Basin Recovery Implementation Programs, A Report to 
Congress, http://www.usbr.gov/uc/envdocs/reports/UCSJRIP/UCSJRIP-
ReptoCongress.pdf, February 2010.
    \7\Upper Colorado River Endangered Fish Recovery Program and San 
Juan River Basin Recovery Implementation Program, Implementing 
Innovative Solutions to Manage Water and Hydropower Resources While 
Recovering Endangered Species, Highlights 2011-2012, http://
www.coloradoriverrecovery.org/general-information/general-publications/
briefingbook/2012BriefingBook.pdf, July 5, 2012.
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    Federal participation and non-federal cost-sharing for the 
Programs were authorized in 2000 with the enactment of Public 
Law 106-392. Under this law, a cost share between the impacted 
States, water and power users and the federal government was 
established. To date, the States and water and power users have 
paid a majority of capital costs (approximately 57 percent).\8\ 
CRSP power users/beneficiaries also agreed to pay for some non-
capital program functions. These costs are largely absorbed by 
electricity ratepayers. In 2012, Congress enacted the 
Endangered Fish Recovery Programs Extension Act of 2012 (Public 
Law 112-270), which reauthorized the use of CRSP hydropower 
revenues to support funding for ``fish monitoring, research and 
program management'' through 2019. The bill also included 
provisions to limit overhead costs and increase accountability 
for official travel relating to carrying out the Programs.
---------------------------------------------------------------------------
    \8\Upper Colorado River Endangered Fish Recovery Program and San 
Juan River Basin Recovery Implementation Program, Implementing 
Innovative Solutions to Manage Water and Hydropower Resources While 
Recovering Endangered Species, Highlights 2011-2012, http://
www.coloradoriverrecovery.org/general-information/general-publications/
briefingbook/2012BriefingBook.pdf, July 5, 2012.
---------------------------------------------------------------------------
    H.R. 4465 extends the use of power user payments by 
authorizing funds for the Programs through 2023. This 
bipartisan bill also requires a report covering the Programs' 
effectiveness in fish recovery, the costs and how revenue 
streams are utilized to operate the Programs.

                            Committee Action

    H.R. 4465 was introduced on November 28, 2017, by 
Congressman John R. Curtis (R-UT). The bill was referred to the 
Committee on Natural Resources, and within the Committee to the 
Subcommittee on Water, Power and Oceans. On December 6, 2017, 
the Subcommittee held a hearing on the legislation. On December 
12, 2017, the Natural Resources Committee met to consider the 
bill. The Subcommittee was discharged by unanimous consent. No 
amendments were offered, and the bill was ordered favorably 
reported to the House of Representatives by unanimous consent 
on December 13, 2017.

            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.

      Compliance With House Rule XIII and Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, January 31, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4465, the 
Endangered Fish Recovery Programs Extension Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aurora 
Swanson.
    Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 4465--Endangered Fish Recovery Programs Extension Act of 2017

    H.R. 4465 would extend through 2023 the specific authority 
of the Bureau of Reclamation to spend, without further 
appropriation, certain proceeds collected from the sale of 
hydroelectric power by the Western Area Power Administration 
(WAPA) for fish recovery programs in the Upper Colorado and San 
Juan River Basin. The fish recovery activities include 
research, removal of nonnative fish, and program management 
activities. In recent years, annual spending for the bureau's 
fish recovery programs has totaled about $12 million. About $8 
million of those funds were from WAPA's hydroelectricity sales 
and the remaining amounts were from appropriated funds.
    Under current law, the specific authority to spend WAPA's 
proceeds for fish recovery programs expires at the end of 
fiscal year 2019. After 2019, the bureau may continue to use 
those funds for fish recovery and other programs under the 
agency's general authorities. However, all programs eligible to 
receive WAPA proceeds, including fish recovery programs, would 
compete for those funds, and spending of WAPA proceeds on fish 
recovery would probably be lower than in recent years. Enacting 
H.R. 4465 would extend the authority of the bureau to give fish 
recovery programs priority over others through 2023.
    Enacting the bill would affect direct spending; therefore, 
pay-as-you-go procedures apply. However, the bureau can spend 
the funds under current law, and CBO expects that any change in 
the timing of outlays would be negligible. Enacting the bill 
would not affect revenues.
    CBO estimates that enacting H.R. 4465 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 4465 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Aurora Swanson. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.
    2. 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 maintain annual base funding for 
the Upper Colorado and San Juan fish recovery programs through 
fiscal year 2023, to require a report on the implementation of 
those programs.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                           PUBLIC LAW 106-392




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SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.

  (a) Authorization of Appropriations for Federal Participation 
in Capital Projects.--(1) There is hereby authorized to be 
appropriated to the Secretary, $88,000,000 to undertake capital 
projects to carry out the purposes of this Act. Such funds 
shall be considered a nonreimbursable Federal expenditure.
  (2) The authority of the Secretary, acting through the Bureau 
of Reclamation, under this or any other provision of law to 
implement capital projects for the Recovery Implementation 
Program for Endangered Fish Species in the Upper Colorado River 
Basin shall expire in fiscal year 2023 unless reauthorized by 
an Act of Congress.
  (3) The authority of the Secretary to implement the capital 
projects for the San Juan River Basin Recovery Implementation 
Program shall expire in fiscal year 2023 unless reauthorized by 
an Act of Congress.
  (b) Cost of Capital Projects.--The total costs of the capital 
projects undertaken for the Recovery Implementation Programs 
receiving assistance under this Act shall not exceed 
$209,000,000 of which--
          (1) costs shall not exceed $179,000,000 for the 
        Recovery Implementation Program for Endangered Fish 
        Species in the Upper Colorado River Basin through 
        fiscal year 2023; and
          (2) costs shall not exceed $30,000,000 for the San 
        Juan River Recovery Implementation Program through 
        fiscal year 2023.
The amounts set forth in this subsection shall be adjusted by 
the Secretary for inflation in each fiscal year beginning after 
the enactment of this Act.
  (c) Non-Federal Contributions to Capital Projects.--(1) The 
Secretary, acting through the Bureau of Reclamation, may accept 
contributed funds from the Upper Division States, or political 
subdivisions or organizations within the Upper Division States, 
pursuant to agreements that provide for the contributions to be 
used for capital projects costs. Such non-Federal contributions 
shall not exceed $17,000,000.
  (2) In addition to the contribution described in paragraph 
(1), the Secretary of Energy, acting through the Western Area 
Power Administration, and the Secretary of the Interior, acting 
through the Bureau of Reclamation, may utilize power revenues 
collected pursuant to the Colorado River Storage Project Act to 
carry out the purposes of this subsection. Such funds shall be 
treated as reimbursable costs assigned to power for repayment 
under section 5 of the Colorado River Storage Project Act. This 
additional contribution shall not exceed $17,000,000. Such 
funds shall be considered a non-Federal contribution for the 
purposes of this Act. The funding authorized by this paragraph 
over any 2-fiscal-year period shall be made available in 
amounts equal to the contributions for the same 2-fiscal-year 
period made by the Upper Division States pursuant to paragraph 
(1).
  (3) The additional funding provided pursuant to paragraph (2) 
may be provided through loans from the Colorado Water 
Conservation Board Construction Fund (37-60-121 C.R.S.) to the 
Western Area Power Administration in lieu of funds which would 
otherwise be collected from power revenues and used for storage 
project repayments. The Western Area Power Administration is 
authorized to repay such loan or loans from power revenues 
collected beginning in fiscal year 2012, subject to an 
agreement between the Colorado Water Conservation Board, the 
Western Area Power Administration, and the Bureau of 
Reclamation. The agreement and any future loan contracts that 
may be entered into by the Colorado Water Conservation Board, 
the Western Area Power Administration, and the Bureau of 
Reclamation shall be negotiated in consultation with Salt Lake 
City Area Integrated Projects Firm Power Contractors. The 
agreement and loan contracts shall include provisions designed 
to minimize impacts on electrical power rates and shall ensure 
that loan repayment to the Colorado Water Conservation Board, 
including principal and interest, is completed no later than 
September 30, 2057. The Western Area Power Administration is 
authorized to include in power rates such sums as are necessary 
to carry out this paragraph and paragraph (2).
  (4) All contributions made pursuant to this subsection shall 
be in addition to the cost of replacement power purchased due 
to modifying the operation of the Colorado River Storage 
Project and the capital cost of water from Wolford Mountain 
Reservoir and the Elkhead Reservoir enlargement in Colorado. 
Such costs shall be considered as non-Federal contributions, 
not to exceed $87,000,000.
  (d) Base Funding.--(1) Beginning in the first fiscal year 
commencing after the date of the enactment of this Act, the 
Secretary may utilize power revenues collected pursuant to the 
Colorado River Storage Project Act for the annual base funding 
contributions to the Recovery Implementation Programs by the 
Bureau of Reclamation. Such funding shall be treated as 
nonreimbursable and as having been repaid and returned to the 
general fund of the Treasury as costs assigned to power for 
repayment under section 5 of the Colorado River Storage Project 
Act.
  (2) For the Recovery Implementation Program for the 
Endangered Fish Species in the Upper Colorado River Basin, the 
contributions to base funding referred to in paragraph (1) 
shall not exceed $4,000,000 per year. For the San Juan River 
Recovery Implementation Program, such contributions shall not 
exceed $2,000,000 per year. The Secretary shall adjust such 
amounts for inflation in fiscal years commencing after the 
enactment of this Act. The utilization of power revenues for 
annual base funding shall cease after the fiscal year [2019] 
2023, 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 2018, 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 2019 that may be required to 
fulfill the goals of the Recovery Implementation Programs. Such 
report shall also describe the Recovery Implementation Programs 
actions and accomplishments to date, the status of the 
endangered species of fish and projected dates for downlisting 
and delisting under the Endangered Species Act of 1973, and the 
utilization of power revenues for annual base funding.] Nothing 
in this Act shall otherwise modify or amend existing agreements 
among participants regarding base funding and depletion charges 
for the Recovery Implementation Programs.
  (3) The Western Area Power Administration and the Bureau of 
Reclamation shall maintain sufficient revenues in the Colorado 
River Basin Fund to meet their obligation to provide base 
funding in accordance with paragraph (2). If the Western Area 
Power Administration and the Bureau of Reclamation determine 
that the funds in the Colorado River Basin Fund will not be 
sufficient to meet the obligations of section 5(c)(1) of the 
Colorado River Storage Project Act for a 3-year period, the 
Western Area Power Administration and the Bureau of Reclamation 
shall request appropriations to meet base funding obligations.
  (e) Authority To Retain Appropriated Funds.--At the end of 
each fiscal year any unexpended appropriated funds for capital 
projects under this Act shall be retained for use in future 
fiscal years. Unexpended funds under this Act that are carried 
over shall continue to be used to implement the capital 
projects needed for the Recovery Implementation Programs.
  (f) Additional Authority.--The Secretary may enter into 
agreements and contracts with Federal and non-Federal entities, 
acquire and transfer interests in land, water, and facilities, 
and accept or give grants in order to carry out the purposes of 
this Act.
  (g) Indian Trust Assets.--The Congress finds that much of the 
potential water development in the San Juan River Basin and in 
the Duchesne River Basin (a subbasin of the Green River in the 
Upper Colorado River Basin) is for the benefit of Indian tribes 
and most of the federally designated critical habitat for the 
endangered fish species in the San Juan River Basin is on 
Indian trust lands, and 2\1/2\ miles of critical habitat on the 
Duchesne River is on Indian Trust Land. Nothing in this Act 
shall be construed to restrict the Secretary, acting through 
the Bureau of Reclamation and the Bureau of Indian Affairs, 
from funding activities or capital projects in accordance with 
the Federal Government's Indian trust responsibility.
  (h) Termination of Authority.--All authorities provided by 
this section for the respective Recovery Implementation Program 
shall terminate upon expiration of the current time period for 
the respective Cooperative Agreement referenced in section 2(1) 
unless, at least 1 year prior to such expiration, the time 
period for the respective Cooperative Agreement is extended to 
conform with this Act.
  (i) Limitation on Indirect Cost Recovery Rate.--The indirect 
cost recovery rate for any transfer of funds to the U.S. Fish 
and Wildlife Service from another Federal agency for the 
purpose of funding any activity associated with the Upper 
Colorado River Endangered Fish Recovery Program or the San Juan 
River Basin Recovery Implementation Program shall not exceed 
three percent of the funds transferred. In the case of a 
transfer of funds for the purpose of funding activities under 
both programs, the limitation shall be applied to the funding 
amount for each program and may not be allocated unequally to 
either program, even if the average aggregate indirect cost 
recovery rate would not exceed three percent.
  (j) Report.--
          (1) In general.--Not later than September 30, 2021, 
        the Secretary shall submit to the appropriate 
        committees of Congress a report that--
                  (A) describes the accomplishments of the 
                Recovery Implementation Programs;
                  (B) identifies--
                          (i) as of the date of the report, the 
                        listing status under the Endangered 
                        Species Act of 1973 (16 U.S.C. 1531 et 
                        seq.) of the Colorado pikeminnow, 
                        humpback chub, razorback sucker, and 
                        bonytail; and
                          (ii) as of September 30, 2023, the 
                        projected listing status under that Act 
                        of each of the species referred to in 
                        clause (i);
                  (C)(i) identifies--
                          (I) the total expenditures and the 
                        expenditures by categories of 
                        activities by the Recovery 
                        Implementation Programs during the 
                        period beginning on the date on which 
                        the applicable Recovery Implementation 
                        Program was established and ending on 
                        September 30, 2021; and
                          (II) projected expenditures by the 
                        Recovery Implementation Programs during 
                        the period beginning on October 1, 
                        2021, and ending on September 30, 2023;
                  (ii) for purposes of the expenditures 
                identified under clause (i), includes a 
                description of--
                          (I) any expenditures of appropriated 
                        funds;
                          (II) any power revenues;
                          (III) any contributions by the 
                        States, power customers, Tribes, water 
                        users, and environmental organizations; 
                        and
                          (IV) any other sources of funds for 
                        the Recovery Implementation Programs; 
                        and
                  (D) describes--
                          (i) any activities to be carried out 
                        under the Recovery Implementation 
                        Program after September 30, 2023; and
                          (ii) the projected cost of the 
                        activities described under clause (i).
          (2) Consultation required.--The Secretary shall 
        consult with the participants in the Recovery 
        Implementation Programs in preparing the report under 
        paragraph (1).

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