39–010

Calendar No. 44

109TH CONGRESS REPORT " SENATE ! 1st Session 109–31

FISH PASSAGE AND SCREENING FACILITIES AT NONFEDERAL WATER PROJECTS 

MARCH 10, 2005.—Ordered to be printed

Mr. DOMENICI, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 232]

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 232) to authorize the Secretary of the Interior, 

acting through the Bureau of Reclamation, to assist in the implementation of fish passage and screening facilities at non-Federal 

water projects, and for other purposes, having considered the same, 

reports favorably thereon without amendment and recommends 

that the bill do pass. 

PURPOSE OF THE MEASURE

The purpose of S. 232 is to authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to assist in the implementation of fish passage and screening facilities at non-Federal 

water projects. 

BACKGROUND AND NEED

In December 2000, the National Oceanic and Atmospheric Administration issued a Biological Opinion on the Federal Columbia 

River Power System (FCRPS), operated by the Bureau of Reclamation (Reclamation), the U.S. Army Corps of Engineers (Corps), and 

Bonneville Power Administration. The Biological Opinion concluded 

that hydropower operations at both Reclamation and Corps facilities are insufficient to avoid jeopardy to 8 of the 12 Columbia River 

Basin salmon and steelhead species listed as threatened or endangered under the Endangered Species Act. To avoid jeopardy, the Biological Opinion proposes a reasonable and prudent alternative 

2

which includes certain ‘‘off-site’’ actions, such as significant improvements to habitat, hatcheries, and harvest. 

One of Reclamation’s responsibilities under the Biological Opinion involves resolving fish passage and fish screening problems at 

non-Federal diversions in certain priority sub-basins. The work will 

improve tributary habitat in up to 15 sub-basins in the Columbia 

River Basin. Reclamation is currently using existing authority to 

perform technical assistance in some of these sub-basins located in 

Oregon, Washington, and Idaho. In its decision document accepting 

the requirements of the Biological Opinion, Reclamation agreed to 

seek the authority to fund construction of projects in order to implement fully its habitat improvement commitment under the Biological Opinion and to help overcome jeopardy from the operation 

of the FCRPS hydropower projects. 

In a challenge to the legal sufficiency of the 2000 FCRPS Biological Opinion, the Federal District Court of Oregon ruled that the Biological Opinion was flawed in that certain actions to be undertaken were not reasonably certain to occur, partially because the 

agencies lacked authority for those actions. S. 232 is intended to 

resolve this authority issue for Reclamation’s tributary habitat and 

fish passage improvement responsibilities. 

LEGISLATIVE HISTORY

S. 232 was introduced on February 1, 2005 by Senator Smith. S. 

232 is identical to S. 1307 as passed by the Senate in the 108th 

Congress. 

During the 108th Congress, S. 1307 was introduced by Senator 

Smith on June 20, 2003. The Subcommittee on Water and Power 

held a hearing on S. 1307 on October 15, 2003. S. Hrg. 108–271. 

At the business meeting on March 10, 2004, the Committee on Energy and Natural Resources ordered S. 1307 favorably reported 

with an amendment in the nature of a substitute. S. Rept. 108–

249. S. 1307 was passed by the Senate, as amended, by unanimous 

consent on September 15, 2004. 

At a business meeting on February 9, 2005, the Committee on 

Energy and Natural Resources ordered S. 232 favorably reported. 

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on February 9, 2005, by unanimous vote of a quorum 

present recommends that the Senate pass S. 232. 

SECTION-BY-SECTION ANALYSIS

Section 1 defines key terms used in the Act. Within the scope of 

fish passage improvement strategies, referred to in section 1(3), the 

Committee intends that non-Federal entities may seek funds under 

this Act to decommission facilities no longer needed. 

Section 2(a) authorizes the Secretary to plan, design, and construct, or provide financial assistance to non-Federal parties to 

plan, design, and construct, fish passage and screening facilities or 

habitat improvements at any non-Federal water diversion or storage project located in the Columbia River Basin. In authorizing the 

Secretary of the Interior, acting through the Bureau, to assist in 

the implementation of fish passage and screening facilities at nonVerDate jul 14 2003 16:27 Mar 12, 2005 Jkt ?????? PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR031.XXX SR031
3

Federal water projects, the Committee intends for the Secretary to 

give due deference to State priorities concerning the location of fish 

passage and screening facilities, and to work in close concert with 

the Governors of each State and appropriate State agencies to ensure coordination. 

Subsection (b) states that nothing in the Act authorizes the acquisition of land for habitat improvements. 

Section 3(a)(1) provides that the Secretary may only undertake 

the actions authorized in the Act after entering into a voluntary, 

written agreement with the non-Federal party or parties who own, 

operate, or maintain the project or any associated lands involved. 

Subsection (b) limits the Federal cost share to 75 percent. 

Subsection (c)(1) states that the written agreements between the 

Secretary and the non-Federal parties shall provide that the nonFederal party agrees to pay the non-Federal share of the total 

costs. 

Subsection (c)(2) allows the non-Federal share to be in the form 

of cash or in-kind services. 

Subsection (c)(3) is self-explanatory. 

Subsection (c)(4) is self-explanatory. 

Subsection (d) provides that any financial assistance made available under this Act shall be provided through grant agreements or 

cooperative agreements. 

Subsection (e) allows the Secretary to require terms and conditions to ensure performance by the non-Federal parties, protect 

Federal investments, define obligations of the Secretary and the 

non-Federal parties, and ensure compliance with all applicable 

Federal, State and local laws. 

Subsection (f) provides that all right and title to, and interest in, 

all fish passage and screening facilities constructed or funded 

under the Act shall be held by the non-Federal parties. Additionally, this subsection provides that the operation, maintenance, and 

replacement of the facilities shall be the sole responsibility of the 

non-Federal parties and shall not be a project cost assignable to 

any Federal reclamation project. 

Section 4(a) allows the Secretary to assist a non-Federal party 

with obtaining or complying with any State, local, or tribal permits. 

Subsection (b) provides that the Secretary shall be subject to all 

Federal laws applicable to activities associated with the construction of a fish passage and screening facility or habitat improvements. 

Subsection (c)(1) requires the Secretary to comply with any applicable State water laws. 

Subsection (c)(2) states that nothing in the Act affects any water 

or water-related right of a State, an Indian tribe, or any other person or entity. 

Subsection (d) requires the Secretary to coordinate with the 

Northwest Power and Conservation Council, appropriate State 

agencies, and appropriate Indian tribes in carrying out the programs authorized in the Act. 

Section 5(a) provides that the Reclamation Act of 1902 and Acts 

amendatory or supplementary thereof and thereto, shall not apply 

to the non-Federal water projects where fish passage and screening 

facilities authorized by this Act are located or to the lands irrigated 

by the projects. 

4

Subsection 5(b) provides that expenditures made by the Secretary pursuant to this Act are not project costs assignable to any 

Federal Reclamation project and are non-reimbursable and non-returnable to the United States Treasury. 

Section 6 authorizes appropriations. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office.

FEBRUARY 14, 2005. 

Hon. PETE V. DOMENICI, 

Chairman, Committee on Energy and Natural Resources, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 232, a bill to authorize the 

Secretary of the Interior, acting through the Bureau of Reclamation, to assist in the implementation of fish passage and screening 

facilities at nonfederal water projects, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Julie Middleton. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure. 

S. 232—A bill to authorize the Secretary of the Interior, acting 

through the Bureau of Reclamation, to assist in the implementation of fish passage and screening facilities at nonfederal 

water projects, and for other purposes 

Summary: S. 232 would authorize the Bureau of Reclamation to 

participate in the planning and construction of fish passage and 

screening facilities and habitat improvement projects at nonfederal 

water storage projects located in the Columbia River Basin in the 

Pacific Northwest if the facilities would enable the bureau to meet 

its obligations under the Endangered Species Act. The federal 

share of the construction costs of such projects would not exceed 75 

percent. In addition, the federal government would not hold title to 

any fish passage or screening facilities constructed under this bill, 

nor would the federal government be responsible for the operation 

and maintenance of those facilities. 

Assuming appropriation of the necessary amounts, CBO estimates that implementing S. 232 would cost about $22 million over 

the 2006–2010 period. This bill would not affect direct spending or 

revenues. S. 232 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 S. 232 is shown in the following table. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment).

5

By fiscal year, in millions of dollars—

2006 2007 2008 2009 2010

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level ...................................................................... 4 4 5 5 6

Estimated outlays ......................................................................................... 3 3 5 5 6

Basis of estimate: For this estimate, CBO assumes that S. 232 

will be enacted before the end of fiscal year 2005 and that the necessary amounts will be appropriated in each fiscal year starting in 

2006. Based on information from the Bureau of Reclamation and 

historical spending patterns of similar construction projects, CBO 

estimates that implementing the projects outlined in this bill would 

cost $22 million over the 2006–2010 period. 

According to the bureau, hundreds of individual fish screening 

and fish passage projects could be constructed under this bill at an 

average cost of around $40,000 per project. CBO estimates that the 

federal share of the cost of construction of these fish passage and 

screening facilities would be $4 million to $6 million annually over 

the 2006–2010 period. This estimate assumes that the bureau’s efforts under the bill during the next several years would be limited 

to projects identified within the Federal Columbia River Power System, where the bureau currently has obligations under the Endangered Species Act. The bureau, however, would have the authority 

to participate in additional projects throughout the Columbia River 

Basin in order to meet any future obligations under the Endangered Species Act that have not yet been determined. 

Intergovernmental and private-sector impact: S. 232 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would impose no costs on state, local, or tribal governments. 

Estimate prepared by: Federal Costs: Julie Middleton. Impact on 

State, Local, and Tribal Governments: Marjorie Miller. Impact on 

the Private Sector: Selena Caldera. 

Estimate approved by: Robert A. Sunshine, Assistant Director for 

Budget Analysis.

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 232. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of S. 232, as ordered reported. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the Department of the Interior at the 

Subcommittee hearing on S. 1307 in the 108th Congress, before the 

Committee adopted an amendment in the nature of a substitute, 

follows:

6

STATEMENT OF JOHN W. KEYS, III, COMMISSIONER, BUREAU

OF RECLAMATION

Madam Chair and Members of the Subcommittee, I am 

John Keys, Commissioner of the Bureau of Reclamation 

(Reclamation). I am pleased to be here today to present the 

Department of the Interior’s (Department) views on S. 

1307, which would authorize the Secretary of the Interior, 

acting through the Bureau of Reclamation, to assist in the 

implementation of fish passage and screening facilities at 

non-federal water projects. As discussed more fully below, 

the Administration could support passage of this bill with 

the suggested modifications. 

Let me begin by saying that the Subcommittee is aware 

of the tremendous effort currently underway in the Pacific 

Northwest to address the needs of the many salmon and 

steelhead species listed as threatened and endangered 

under the Endangered Species Act (ESA). Congress has 

provided significant support to these efforts by providing 

authority and funding to numerous federal agencies to address the needs of the various life stages of these species. 

Among these efforts is a Biological Opinion issued by the 

National Marine Fisheries Service (now NOAA Fisheries) 

in December 2000 concerning the operation of the Federal 

Columbia River Power System (FCRPS) of the Columbia 

River. The FCRPS includes 14 major dams on the Columbia and Snake Rivers operated as an integrated system by 

the U.S. Army Corps of Engineers and Reclamation for 

flood control and hydropower generation. The Bonneville 

Power Administration transports and markets the power 

generated by the system. As required by section 7 of the 

ESA, these three action agencies have consulted with 

NOAA Fisheries on the operation of the FCRPS. 

In 2000, NOAA Fisheries found that the operation and 

configuration of the hydropower system could not be modified enough to prevent jeopardy to 8 of the 12 listed anadromous species affected by the system. Consequently, to 

avoid jeopardy, NOAA Fisheries identified a reasonable 

and prudent alternative which included numerous actions 

that could improve the survival of those species in what 

are known as the other ‘‘H’s’’-harvest, hatcheries and habitat. Among the actions recommended to Reclamation is a 

habitat initiative to improve tributary spawning and 

rearing conditions by working with private parties to 

screen diversions and to provide fish passage at non-federal water diversion structures. Screen and passage 

projects provide near-term benefits. There is an immediate 

benefit to the species by reducing fish mortality and providing access to better tributary migration, spawning, and 

rearing habitat. Improved adult access to tributary habitat 

produces more juveniles, and juveniles enjoy generally 

higher survival rates in the first spawning season in which 

these projects are in place. 

Reclamation currently has the authority to provide engineering design and environmental compliance assistance 

7

to the owners of non-federal water diversion facilities, but 

lacks the authority to fund the construction of fish screens 

and passage at such facilities. In its Findings and Commitments on the 2000 FCRPS Biological Opinion, Reclamation 

agreed to seek such authority from the Congress. The Administration requested this authority last year in a proposal that was provided to Congress. Although S. 1307 

would not provide habitat restoration authority as requested in the Administration’s proposal, it does provide 

much of the same authority as that proposed bill. 

The need for this authority has been highlighted in the 

ongoing litigation concerning the FCRPS Biological Opinion. In May of this year, the U.S. District Court for the 

District of Oregon ruled that the 2000 Biological Opinion 

is flawed because some anticipated future actions by federal agencies are not reasonably certain to occur. Reclamation’s lack of authority to fund the construction of needed 

screen and migration barrier projects on non-federal facilities falls within this category. This deficiency would be 

eliminated by the passage of S. 1307. 

S. 1307 would also provide Reclamation with the authority to fund such screening and passage projects should 

they be necessary in order for the non-FCRPS Reclamation 

projects within the Columbia River Basin in the States of 

Washington and Oregon to comply with section 7(a)(2) of 

the ESA. At the request of Reclamation water users in 

Idaho, Reclamation projects in the Snake River Basin 

would not be included under this authority. A further provision of S. 1307 specifies that the authority would only be 

utilized when Reclamation determines that it would enable 

the agency to meet its obligations under section 7 of the 

ESA. The Administration supports these provisions. 

The legislation would also confirm that the ownership of 

non-federal projects and land, operation and maintenance 

responsibilities for those projects, and their affiliated 

water rights as defined by state water law, shall remain 

with the private owner. Moreover, section 5 of the bill 

specifies that these screen and fish passage projects are 

not Reclamation projects subject to federal reclamation 

law. We support these limitations as well. 

We note that owners of the non-federal projects receiving 

assistance under this legislation will benefit from bringing 

their facilities into compliance with the ESA. It is appropriate to require some degree of cost sharing from those individuals who may substantially benefit from these actions. We strongly encourage the Subcommittee to consider 

a cost-share requirement of 35 percent, including the value 

of in-kind services. 

In conclusion, if enacted, S. 1307 would provide Reclamation with much needed authority and flexibility in 

helping us comply with the ESA by avoiding jeopardy to 

endangered and threatened salmon species. We urge the 

Subcommittee to act expeditiously on this bill and to include an appropriate cost share provision. We stand ready 

to work with the Subcommittee in that regard. 

8

Madam Chair, this concludes my testimony. I welcome 

any questions that you or Members of the Subcommittee 

may have.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that no changes in existing law are made by the bill S. 232, as ordered reported.

Æ