[Senate Report 117-174]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 520
117th Congress      }                                  {       Report
                                 SENATE
 2d Session         }                                  {      117-174

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



 
         UPPER COLORADO AND SAN JUAN RIVER BASINS RECOVERY ACT

                                _______
                                

               September 28, 2022.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 5001]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the Bill (H.R. 5001), to authorize the Secretary of 
the Interior to continue to implement endangered fish recovery 
programs for the Upper Colorado and San Juan River Basins, and 
for other purposes, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                Purpose

    The purpose of H.R. 5001 is to authorize the Secretary of 
the Interior to continue to implement endangered fish recovery 
programs for the Upper Colorado and San Juan River Basins.

                          Background and Need

    The Upper Colorado River Endangered Fish Recovery Program 
and the San Juan River Basin Recovery Implementation Program 
are two fish recovery programs focused on working to recover 
four endangered species while providing Endangered Species Act 
(ESA) compliance for water-related activities in the states of 
Colorado, New Mexico, Wyoming, and Utah. More than 2,500 water-
related projects in the Upper Colorado River Basin rely on 
these programs for their ESA compliance. The recovery programs 
are currently authorized through the end of fiscal year (FY) 
2023.
    The Upper Colorado River Endangered Fish Recovery Program 
was established in 1988 to assist in the recovery of Colorado 
pikeminnow, humpback chub, razorback sucker, and bonytail chub. 
The San Juan River Basin Recovery Implementation Program was 
established in 1992 to recover the Colorado pikeminnow and 
razorback sucker on the San Juan River. Both programs are 
administered through collaborative partnerships that include 
the Bureau of Reclamation, the U.S. Fish and Wildlife Service, 
and other federal agencies, as well as tribes, state agencies, 
hydropower customers, conservation groups, and water users 
working collaboratively to promote species recovery. Program 
funding is provided through a combination of federal 
appropriations, contributions from tribes, states, and water 
users, and revenues from hydropower generated at dams in the 
Upper Colorado River Basin.
    The fish recovery program is successfully working to down-
list the four species that are endemic to the Colorado River 
Basin. Despite nonnative fish predators and wide-spread drought 
throughout the basin, the U.S. Fish and Wildlife Service ruled 
in October 2021 that the humpback cub is down-listed from 
endangered to threatened under the ESA. The razorback sucker is 
under consideration for down-listing from endangered to 
threatened, as well. H.R. 5001, as ordered reported, extends 
the authorization of the two fish recovery programs that are 
set to expire.

                          Legislative History

    H.R. 5001 was introduced by Representative Neguse on August 
10, 2021. The House Committee on Natural Resources reported the 
bill on March 9, 2022 (H. Rept. 117-263). H.R. 5001 passed the 
House of Representatives on March 15, 2022, by a vote of 397-
27. A similar bill, S. 3693, was introduced by Senator 
Hickenlooper on February 17, 2022. The subcommittee on Water 
and Power held a hearing on both bills on May 25, 2022. At its 
business meeting on July 21, 2022, the Committee on Energy and 
Natural Resources ordered H.R. 5001 favorably reported without 
amendment.

                        Committee Recommendation

    The Senate Committee on Energy and Natural Resources, in an 
open business session on July 21, 2022, by a voice vote of a 
quorum present, recommends that the Senate pass H.R. 5001.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 establishes the short title of the Act as ``Upper 
Colorado and San Juan River Basins Recovery Act''

Sec. 2. Extension of authorizations related to fish recovery programs

    Section 2 extends the authority of the Department of the 
Interior to implement capital projects for the endangered fish 
recovery programs for the Upper Colorado and San Juan River 
basins through FY2024; raises the ceiling on costs for the 
Recovery Implementation Program for Endangered Fish Species in 
the Upper Colorado River Basin to $184,000,000 and lowers the 
ceiling on costs for the San Juan River Recovery Implementation 
Program to $30,000,000; and extends the deadline for the 
submission of the report on the recovery implementation 
programs long-term management plan through FY2022.

                   Cost and Budgetary Considerations

    The following estimate of costs of H.R. 5001, as ordered 
reported by the House Committee on Natural Resources on 
November 17, 2021, has been provided by the Congressional 
Budget Office.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 5001 would authorize the appropriation of $10 million 
in 2024 for the Bureau of Reclamation to participate in fish 
recovery programs, including population monitoring and removal 
of nonnative fish, in the Upper Colorado River and San Juan 
River Basins. In recent years, annual spending for the program 
has totaled $9 million. Based on historical spending patterns, 
CBO estimates that implementing the bill would cost $10 million 
over the 2022-2026 period, assuming the appropriation of 
specified amounts.
    The bill also would decrease the maximum authorized amount 
for fish recovery projects on the San Juan River by $10 
million, adjusted for inflation, and increase the maximum for 
the Upper Colorado River by the same amount. That reallocation 
would have no net effect on discretionary costs over the 2022-
2026 period.
    The CBO staff contact for this estimate is Aurora Swanson. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of 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. 5001.
    The Act 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. 5001, as ordered reported.

                   Congressionally Directed Spending

    H.R. 5001, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        Executive Communications

    The testimony provided by the Department of the Interior at 
the May 25, 2022, hearing on H.R. 5001 follows:

     Statement of Camille Calimlim Touton, Commissioner, Bureau of 
                Reclamation, Department of the Interior

    S. 3693 extends authority for the Upper Colorado River and 
San Juan River Basin endangered fish recovery implementation 
programs from 2023 to 2024. The Administration supports the 
reauthorization of these important, and demonstrably 
successful, fish recovery programs.
    The Upper Colorado River Endangered Fish Recovery Program 
and the San Juan River Basin Recovery Implementation Program 
(the Programs) were established in 1988 and 1992, respectively. 
The goals of the Programs are to recover four endangered fish 
species in a manner consistent with state and Tribal laws, 
interstate compacts, the Endangered Species Act (ESA), other 
federal laws, and Indian trust responsibilities while water 
development proceeds.
    Participants in these two Programs include the States of 
Colorado, New Mexico, Utah, and Wyoming; federal agencies, 
including Reclamation, Fish and Wildlife Service, Western Area 
Power Administration, National Park Service, Bureau of Land 
Management, and Bureau of Indian Affairs; American Indian 
Tribes including the Navajo Nation, Jicarilla Apache Nation, 
Southern Ute Tribe, and Ute Mountain Ute Tribe; water users; 
power users; and environmental organizations.
    Actions taken by the Programs to recover the Colorado 
pikeminnow, humpback chub, razorback sucker, and bonytail meet 
ESA requirements for operation of federal multi-purpose 
projects, water projects benefiting the Tribes, and non-federal 
water projects. Activities and accomplishments of these 
Programs provide ESA compliance for more than 2,500 federal and 
non-federal water projects depleting approximately 3.7 million 
acre-feet per year in the Upper Colorado River and San Juan 
River Basins.
    These two important recovery programs are intended to 
recover four species of endangered fish while allowing the 
states and Tribes to develop their full water entitlement and 
maintain compliance with interstate compacts and associated 
laws. Work focuses on four major areas:
          1. Habitat management including providing and 
        protecting instream flows;
          2. Habitat development and maintenance, including 
        fish ladders, fish screens, levee removal, and flooded 
        bottomland restoration;
          3. Augmentation and conservation of genetic 
        integrity, development and operation of propagation 
        facilities, and fish stocking; and
          4. Management of non-native fish;
    As evidence of the success of these Programs, the Fish and 
Wildlife Service recently reclassified the humpback chub from 
endangered to threatened on October 15, 2021 and proposed a 
similar reclassification for razorback sucker in July of 2021.
    The Upper Colorado and San Juan River Basins Recovery Act 
would authorize continued implementation of endangered fish 
recovery programs for the Upper Colorado and San Juan River 
Basins through 2024 to protect and recover endangered fishes 
while water development proceeds in compliance with all 
applicable federal and state laws. The Upper Colorado and San 
Juan River Basins Recovery Act would also extend the deadline 
for the Report to Congress. The new legislation extends this 
reporting deadline to September 30, 2022. The report will 
detail, among other things, activities to be carried out after 
FY 2023 and the cost of such activities.
    We look forward to working with the Committee to further 
these important recovery programs.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill H.R. 5001, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

                           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) 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] 2024 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] 2024 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] 
        $184,000,000 for the Recovery Implementation Program 
        for Endangered Fish Species in the Upper Colorado River 
        Basin through fiscal year [2023] 2024; and
          (2) costs shall not exceed [$30,000,000] $25,000,000 
        for the San Juan River Recovery Implementation Program 
        through fiscal year [2023] 2024.
    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) Authorization of Appropriations.--
                  (A) In general.--There is authorized to be 
                appropriated to the Secretary to be used by the 
                Bureau of Reclamation to make the annual base 
                funding contributions to the Recovery 
                Implementation Programs $10,000,000 for each of 
                fiscal years 2020 through [2023] 2024.
                  (B) Nonreimbursable funds.--The funds 
                contributed to the Recovery Implementation 
                Programs under subparagraph (A) shall be 
                considered a nonreimbursable Federal 
                expenditure.
          (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. 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] 
        2022, 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] 2024, 
                        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] 2022; and
                          (II) projected expenditures by the 
                        Recovery Implementation Programs during 
                        the period beginning on October 1, 
                        [2021] 2022, and ending on September 
                        30, [2023] 2024; and
                  (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] 
                        2024; 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).

           *       *       *       *       *       *       *


                                  [all]