**Testimony of**

**Jennifer Gimbel**

**Director, Colorado Water Conservation Board**

**Regarding S. 3189**

**Before the**

**Water and Power Subcommittee**

**Senate Energy and Natural Resources Committee**

**Washington D.C.**

**July 8, 2008**

My name is Jennifer Gimbel. I serve as Director, Colorado Water
Conservation Board, within the Colorado Department of Natural Resources.
I am here to testify in support of S. 3189.

The Colorado Water Conservation Board (CWCB) has been involved in the
Upper Colorado River Endangered Fish Recovery Program and the San Juan
River Basin Recovery Implementation Program (programs) since the
inception of these programs in 1988 and 1992, respectively. The Colorado
Water Conservation Board and the Colorado Division of Wildlife actively
participate in the programs on behalf of the State of Colorado. The
State Engineer's Office participates in administration of water for
delivery to endangered fish habitat within the state of Colorado. We not
only participate in the governance and the technical committees of the
programs, but the CWCB has also provided loans to the programs to cover
capital projects in accordance with Public Law 106-392.

I believe you will be receiving or have received letters of support for
S. 3189 from several participants in the programs, including the States
of Colorado, New Mexico, Utah, and Wyoming, American Indian tribes,
water users, power customers and environmental organizations.

**[UPPER COLORADO AND SAN JUAN RIVER BASIN RECOVERY
PROGRAMS]{.underline}:** The programs have the goals of recovering four
federally listed endangered fish species in the Upper Colorado River
basin while water development and management activities proceed in
compliance with state laws, interstate compacts, and the federal
Endangered Species Act. Activities of the programs provide Endangered
Species Act compliance for more than 1,600 water projects depleting
approximately three million acre-feet per year in the Upper Colorado
River basin, including every Bureau of Reclamation project in the Upper
Basin upstream of Lake Powell. No lawsuits have been filed as a result
of ESA compliance. The programs have substantial grassroots support
among participants, including the four Upper Basin states (Colorado, New
Mexico, Utah, Wyoming), American Indian tribes (Navajo Nation, Jicarilla
Apache Nation, Southern Ute Tribe, Ute Mountain Tribe), water users,
power customers and environmental organizations. Four federal agencies
(U.S. Fish and Wildlife Service, U.S. Bureau of Reclamation, National
Park Service, and Western Area Power Administration) participate in the
programs. Since the inception of these programs, they have enjoyed
strong support in Congress, as indicated the substantial bi-partisan
support in both the Senate and the House of Representatives for annual
appropriations.

The programs have been hailed by administrations of both parties for
their successes. In 2000, Secretary of the Interior, Bruce Babbit
referred to the Upper Basin recovery programs as "an ongoing success
story" (Colorado River Water Users Association, 2000). Secretary of the
Interior Gale Norton referred to the programs as a national model of how
the Endangered Species Act should be implemented (Colorado Water
Congress, 2006). In 2008, Secretary Dirk Kempthorne awarded the Upper
Basin and San Juan programs the Department of the Interior's Cooperative
Conservation Award for the successful history of stakeholder
collaboration resolving "seemingly intractable water use conflicts\..."
(see attached Exhibits A and B).

**[P.L. 106-392]{.underline}:** P.L.106-392 was signed into law on
October 30, 2000. The law authorizes the Bureau of Reclamation to
provide cost sharing of capital construction and annual operations for
the endangered fish recovery programs for the Upper Colorado and San
Juan River basins. The law recognizes significant and specific cost
sharing contributions to the programs by the States of Colorado,
Wyoming, Utah, and New Mexico, power customers, and water users for
these purposes.

P.L. 106-392 has been amended twice. P.L.107-375 extended the period for
capital construction to 2008 for both programs. P.L.109-183 extended the
period for construction of capital projects for both programs through FY
2010, authorized an additional \$15 million in capital expenditures for
the Upper Colorado River Recovery Program, and recognized an additional
\$11 million in non-federal cost share contributions.

S. 3189 provides for additional needed authorization for capital
construction of projects, recognizes additional non-Federal cost
sharing, and continues annual funding of the programs at current levels,
as discussed in detail below.

**S. 3189 Amendments Regarding**

**Additional Authorization of Construction of Capital Projects and
Additional Non-Federal Cost Sharing**

**[NEED FOR 2008 AMENDMENTS RE: CAPITAL PROJECTS]{.underline}:** By
2010, these two programs will have constructed approximately \$100
million in facilities (fish passages, fish screens, flooded bottomlands
habitat, hatcheries, and a reservoir that augments flows for endangered
fish) (Exhibit C). These large, complex facilities are on, or adjacent
to, major rivers in the Upper Colorado and San Juan River basins and
will require rehabilitation, repair or replacement. Many of the
facilities are susceptible to damage by floods and debris associated
with the major rivers on which they are located, i.e. Green, Colorado,
Gunnison and San Juan. Additional authority is needed to complete the
Tusher Wash fish screen on the Green River. Additional time is needed to
complete capital projects in the San Juan basin.

Authorization for the Secretary of the Interior to conduct capital
construction expires on September 30, 2010. Existing funding authority
for the Upper Colorado Program will have been expended.

The proposed amendments will authorize funding to protect critical
habitat. Unstable rock formations adjacent to designated critical
habitat for the endangered razorback sucker and Colorado pikeminnow in
the San Juan River caused a major landslide near Farmington, New Mexico.
A second slide occurred in August, 2007 in the same area. U.S. Fish and
Wildlife Service determined that the unstable cliffs are a threat to
critical habitat in the San Juan River. The estimated cost of
stabilizing the rock formation is \$7 million. Presently, authority for
this type of activity does not exist in P.L. 106-392. It would be
prudent to have such authority to ensure recovery of the species and
continued ESA compliance for the water projects that rely on the
programs.

Specifically, S. 3189 would achieve the following:

-   Authorize an additional \$12 million in federal expenditures for
    capital projects for the San Juan Program for the purposes of a)
    protecting critical habitat of endangered fish species from rock
    slides in the area west of Farmington (\$7 million), and b) repair,
    rehabilitation and replacement of constructed capital facilities
    (fish passages, fish screens, habitat, hatcheries) as needed through
    2023 (\$5 million).

-   Authorize an additional \$15 million in federal expenditures for
    capital projects for the Upper Colorado Program for the purposes
    of a) constructing a fish screen on Tusher Wash in critical habitat
    on the Green River, Utah in light of significantly increased
    construction material costs, and b) for repairs, rehabilitation and
    replacement of constructed capital facilities (fish screens, fish
    passages, habitat, hatcheries) as needed through 2023.

-   Recognize additional non-federal cost sharing of \$56 million
    through 2023.

Appropriations will only be requested as needed and any requests would
be subject to Congressional scrutiny.

**[IMPACT ON COST SHARING]{.underline}:** S. 3189 would increase the
total capital projects authorizations from \$126 million to \$209
million. However, authorization for federal appropriations only would
increase from \$61 million to \$88 million through 2023, an increase of
\$27 million over the 13 fiscal year period. The remaining \$56 million
is provided by additional non-federal contributions of the same kind as
recognized by and included in the authorizations for the programs set
forth by Congress in P.L. 106-392. This additional non-federal
contribution is from power replacement costs due to reoperation of
Flaming Gorge Dam to benefit the endangered fish. It is conservatively
estimated at \$56 million over the current estimate of \$22.1 million
(Flaming Gorge EIS, U.S. Bureau of Reclamation, 2007). With the
recognition and inclusion of these additional, out-of-pocket power
replacement costs, the non-federal share of capital costs increases from
52% to 58%. Non-federal cost sharing also includes \$8.9 million from
water users previously recognized by Congress.

A comparison of cost sharing under the proposed 2008 amendments with the
present law is provided below.

**Table 1 -- Currently Authorized Capital Projects Authorization and
Proposed Funding Authorization to Accomplish Needed 2008 Amendments**

+----------------------------------------+--------------+-------------+
| ***Item***                             | ***          | ***         |
|                                        | Currently*** | Proposed*** |
|                                        |              |             |
|                                        | ***A         | *           |
|                                        | uthorized*** | **(millions |
|                                        |              | \$)***      |
|                                        | ***(millions |             |
|                                        | \$)***       |             |
+----------------------------------------+--------------+-------------+
| **Capital Expenditure Completion       | **2010**     | **2023**    |
| Deadline**                             |              |             |
+----------------------------------------+--------------+-------------+
|                                        |              |             |
+----------------------------------------+--------------+-------------+
| **[Total Capital Projects              | **\$126**    | **\$209**   |
| Authorization]{.underline}**           |              |             |
|                                        | *(48%)*      | *(42%)*     |
| **Federal share**                      | **\$61**     | **\$88**    |
|                                        |              |             |
| **Non-federal share**                  | *(52%)*      | *(58%)*     |
|                                        | **\$65**     | **\$121**   |
+----------------------------------------+--------------+-------------+
| **[Funding Sources]{.underline}**      | **\$61**     | **\$88**    |
|                                        |              |             |
| **Federal appropriations**             | **\$17**     | **\$17**    |
|                                        |              |             |
| **Non-federal Cost Share**             | **\$17**     | **\$17**    |
|                                        |              |             |
| -   **Power revenues**                 | **[\$31]{.   | **[\$87]{.u |
|                                        | underline}** | nderline}** |
| -   **Upper Basin States**             |              |             |
|                                        | **\$126**    | **\$209**   |
| -   **Recognized non-federal water and |              |             |
|     power contributions**              |              |             |
+----------------------------------------+--------------+-------------+
| **[Funding Distribution]{.underline}** | **\$18**     | **\$30**    |
|                                        |              |             |
| -   **San Juan Program capital         | **\$77**     | **\$92**    |
|     projects**                         |              |             |
|                                        | **[\$31]{.   | **[\$87]{.u |
| -   **Upper Colorado Program capital   | underline}** | nderline}** |
|     projects**                         |              |             |
|                                        | **\$126**    | **\$209**   |
| -   **Recognized non-federal water and |              |             |
|     power contributions**              |              |             |
+----------------------------------------+--------------+-------------+

**S. 3189 Amendments**

**Regarding Authorization of Continued Annual Base Funding**

**from Power Revenues**

**[ANNUAL BASE FUNDING:]{.underline}** Annual base funds from power
revenues contribute significantly to the successful implementation of
recovery actions by both recovery programs, including instream flow
identification, evaluation, and protection; habitat restoration and
maintenance; management of nonnative fish impacts; endangered fish
propagation and stocking; research, monitoring, and data management;
public information and involvement; and program management. Subsequent
to passage of P.L. 106-392, \$27,139,900 in power revenue base funds
have been expended or obligated by the Upper Colorado Recovery Program,
and \$12,969,300 by the San Juan Recovery Program (2001--2007). The U.S.
Fish and Wildlife Service, the four participating states, American
Indian Tribes, and water users also provide additional annual funding
and in-kind contributions for these activities.

**[NEED FOR 2008 AMENDMENTS]{.underline}:** P.L. 106-392 requires the
Secretary of the Interior to submit a report to the appropriate
Committees of the United States Senate and House of Representatives by
the end of fiscal year 2008 on the utilization of power revenues for
annual base funding of the recovery programs, and to make a
recommendation regarding the need for continued annual base funding from
power revenues beyond fiscal year 2011 that may be required to achieve
the goals of these recovery programs. The report has been under revision
in the Department of the Interior since January, 2008. It is expected to
be delivered to Congress soon. Regardless of when the delivery of this
report occurs, we urge Congress to enact the amendments to continue
annual funding of the recovery programs at current levels.

Unless reauthorized by Congress, the utilization of power revenues for
annual base funding of recovery program actions, other than for
operation and maintenance of capital projects and monitoring, will cease
after fiscal year 2011.

The approximate fiscal impact of reductions in annual base funding
(estimates in fiscal year 2008 dollars) after fiscal year 2011 without
reauthorization is summarized as follows:

  ---------------- ----------------- ------------------- -------------------
  **Recovery       **Currently       **Reductions in     **Remaining Annual
  Program**        Available Annual  Annual Base Funding Base Funding After
                   Base Funding**    After 2011 Without  2011 Without
                                     Reauthorization**   Reauthorization**

  Upper Colorado   \$4,678,000       **-**\$1,824,000    \$2,854,000

  San Juan         \$2,339,000       **-**\$942,500      \$1,396,500

  **Total:**       **\$7,017,000**   \-**\$2,766,500**   **\$4,250,500**

  **Percent:**     **100%**          \-**39%**           **61%**
  ---------------- ----------------- ------------------- -------------------

Without reauthorization, annual base funding from power revenues for
nonnative fish management, research, public information and involvement,
and program management would be eliminated from both recovery programs.
This would delay and significantly impede the recovery programs'
achievements in restoring populations of the endangered fishes. As a
result, ESA compliance provided by recovery program actions for more
than 1,600 water projects, as well as future projects, would not likely
continue. ESA compliance depends not only on implementing recovery
actions, but is ultimately and directly linked to long-term improvement
in the status of fish populations and achievement of recovery.

The non-federal participants in the programs recommend that Congress
also pass amendments to insure continued base funding at current levels.
S. 3189 accomplishes this. The report by the Secretary is under review
in the Department of the Interior. It is expected to be delivered to
Congress soon, and is expected to include recommendations consistent
with the recommendations of the non-federal participants listed below,
which are embodied in S. 3189.

**[RECOMMENDATIONS REGARDING BASE FUNDING:]{.underline}** The
non-federal participants in the programs offered the following
recommendations to the Secretary regarding continued authorization of
base funding to be incorporated into P.L. 106-392:

1.  P.L.106-392 should be amended to allow continued use of power
    revenues through 2023 for annual base funding of all activities as
    originally authorized and which are necessary to achieve recovery.
    The expected date of recovery of the razorback sucker and bonytail
    is 2023. In 2020, the Secretary should be required to submit a
    report to Congress on the need for continued funding beyond 2023 and
    the recommended sources of funding.

2.  To assure that annual base funds are available in the event that the
    balance in the Upper Colorado River Basin Fund cannot meet annual
    base funding needs for the recovery programs, Congress should:

> a\) Add authority to enable Western Area Power Administration to
> borrow from the Colorado Water Conservation Board Construction Fund
> the annual base funds that would otherwise be derived from the Upper
> Colorado River Basin Fund (Basin Fund) and to repay those borrowed
> funds from the Basin Fund, as is currently authorized for capital
> construction projects funded with the Basin Fund; and,
>
> b\) Add specific authority for congressional appropriations for annual
> base funding if annual funding of the recovery programs cannot be
> provided from the Basin Fund or the Colorado Water Conservation Board
> loans in a given year or years, and direct Reclamation, in
> consultation with Western Area Power Administration, to inform
> Congress if such a situation is reasonably foreseeable as far in
> advance as possible.

3.  The language in the existing legislation that states that base
    funding and depletion charges previously agreed upon should be
    retained: *"Nothing in this Act shall otherwise modify or amend
    existing agreements among participants regarding base funding and
    depletion charges for the Recovery Implementation Programs."* This
    provides that annual and in-kind cost sharing by the U.S. Fish and
    Wildlife Service, the Bureau of Reclamation, the four participating
    States, American Indian Tribes, and water users identified in the
    original agreements will continue.

4.  The authorizing legislation should be amended to state that
    provision of base funding through 2023 should be contingent upon the
    recovery programs modifying the respective Cooperative Agreements
    extending the terms of the recovery programs through 2023, and that
    any needed modifications take place at least one year prior to
    expiration of the current agreements.

S. 3189 implements these recommendations.

Letters supporting these recommendations have been submitted to the
Secretary of the Interior by the following non-federal recovery
programs' participants for the Secretary of the Interior:

+---------------------------------+------------------------------------+
| State of Colorado               | Colorado Water Congress            |
|                                 |                                    |
| State of Utah                   | Utah Water Users Association       |
|                                 |                                    |
| State of New Mexico             | Wyoming Water Association          |
|                                 |                                    |
| State of Wyoming                | San Juan Basin Water Users         |
|                                 |                                    |
| Jicarilla Apache Nation         | Colorado River Energy Distributors |
|                                 | Association (CREDA)                |
| Navajo Nation                   |                                    |
|                                 |                                    |
| Southern Ute Indian Tribe       |                                    |
|                                 |                                    |
| Ute Mountain Ute Tribe          |                                    |
+---------------------------------+------------------------------------+

I appreciate the opportunity to provide this testimony to the Water and
Power Subcommittee.

Exhibit A: Upper Colorado River Cooperative Conservation Award

![](media/image1.wmf){width="5.972222222222222in" height="7.73125in"}

Exhibit B San Juan Recovery Program Cooperative Conservation Award

![](media/image2.wmf){width="5.986111111111111in"
height="7.272916666666666in"}

**Exhibit C: Recovery Programs Capital Expenditures Through 2010**

  --------------------------------------------- -------- ----------------
  **Upper Colorado River Recovery Program**              (1,000s)

  ** **                                                   

  Yampa River                                            13,821

  Elkhead Fish Screen                                    769

  Grand Valley Water Management                          7,989

  Coordinated Reservoir Operations                       346

  Ruedi Water and Steamboat sales                        235

  Acquire New Water to Enhance Flows                     242

  Bottomlands Restoration                                8,736

  Hartland Fish Passage                                  58

  GVIC Fish Passage                                      723

  Price/Stubb Fish Passage                               12,074

  Gov\'t Highline (Roller Dam) Passage                   9,532

  Redlands Fish Passage                                  1,003

  Redlands Screening                                     6,544

  GVIC Fish Screening                                    3,420

  Gov\'t Highline (Roller Dam) Screening                 9,435

  Tusher Wash Screening                                  740

  Endangered Fish Hatchery Facilities                    4,413

  Nonnative Fish Control                                 950

  Highline Reservoir Screening                           260

  Capital Program Management                             3,798

  Public Involvement Plans                               264

  Total UC Program                                       85,352

                                                          

                                                          

  **San Juan River Recovery Program**                     

  ** **                                                   

  Habitat Restoration                                    56

  Propagation/Refugia                                    1,352

  Arizona Public Service                                 2,000

  Hogback and Cudei Repayment                            3,128

  Public Service Co in NM                                2,399

  Hogback Fish Screen                                    3,574

  Fruitland Fish Passage                                 0

  Program Management                                     919

  Total San Juan Program                                 13,427

                                                          

  Total Capital Program Need                             98,779

                                                         

                                                         
  --------------------------------------------- -------- ----------------