69–010 

Calendar No. 819 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–387 

LOWER COLORADO RIVER MULTI-SPECIES 

CONSERVATION PROGRAM ACT 

JUNE 16, 2008.—Ordered to be printed 

Mr. BINGAMAN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany H.R. 2515] 

The Committee on Energy and Natural Resources, to which was 

referred the Act (H.R. 2515) to authorize appropriations for the Bureau of Reclamation to carry out the Lower Colorado River MultiSpecies Conservation Program in the States of Arizona, California, 

and Nevada, and for other purposes, having considered the same, 

reports favorably thereon with an amendment and recommends 

that the Act, as amended, do pass. 

The amendment is as follows: 

Strike out all after the enacting clause and insert in lieu thereof 

the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Lower Colorado River Multi-Species Conservation 

Program Act’’. 

SEC. 2. DEFINITIONS. 

In this Act: 

(1) LOWER COLORADO RIVER MULTI-SPECIES CONSERVATION PROGRAM.—The 

term ‘‘Lower Colorado River Multi-Species Conservation Program’’ or ‘‘LCR 

MSCP’’ means the cooperative effort on the Lower Colorado River between Federal and non-Federal entities in Arizona, California, and Nevada approved by 

the Secretary of the Interior on April 2, 2005. 

(2) LOWER COLORADO RIVER.—The term ‘‘Lower Colorado River’’ means the 

segment of the Colorado River within the planning area as provided in section 

2(B) of the Implementing Agreement, a Program Document. 

(3) PROGRAM DOCUMENTS.—The term ‘‘Program Documents’’ means the Habitat Conservation Plan, Biological Assessment and Biological and Conference 

Opinion, Environmental Impact Statement/Environmental Impact Report, 

Funding and Management Agreement, Implementing Agreement, and Section 

10(a)(1)(B) Permit issued and, as applicable, executed in connection with the 

LCR MSCP, and any amendments or successor documents that are developed 

consistent with existing agreements and applicable law. 


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(4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior. 

(5) STATE.—The term ‘‘State’’ means each of the States of Arizona, California, 

and Nevada. 

SEC. 3. IMPLEMENTATION AND WATER ACCOUNTING. 

(a) IMPLEMENTATION.—The Secretary is authorized to manage and implement the 

LCR MSCP in accordance with the Program Documents. 

(b) WATER ACCOUNTING.—The Secretary is authorized to enter into an agreement 

with the States providing for the use of water from the Lower Colorado River for 

habitat creation and maintenance in accordance with the Program Documents. 

SEC. 4. ENFORCEABILITY OF PROGRAM DOCUMENTS. 

(a) IN GENERAL.—Any party to the Funding and Management Agreement or the 

Implementing Agreement, and any permittee under the Section 10(a)(1)(B) Permit, 

may commence a civil action in United States district court to adjudicate, confirm, 

validate or decree the rights and obligations of the parties under those Program 

Documents. 

(b) JURISDICTION.—The district court shall have jurisdiction over such actions and 

may issue such orders, judgments, and decrees as are consistent with the court’s 

exercise of jurisdiction under this section. 

(c) UNITED STATES AS DEFENDANT.—

(1) IN GENERAL.—The United States or any agency of the United States may 

be named as a defendant in such actions. 

(2) SOVEREIGN IMMUNITY.—Subject to paragraph (3), the sovereign immunity 

of the United States is waived for purposes of actions commenced pursuant to 

this section. 

(3) NONWAIVER FOR CERTAIN CLAIMS.—Nothing in this section waives the sovereign immunity of the United States to claims for money damages, monetary 

compensation, the provision of indemnity, or any claim seeking money from the 

United States. 

(d) RIGHTS UNDER FEDERAL AND STATE LAW.—Except as specifically provided in 

this section, nothing in this section limits any rights of any party under Federal or 

State law. 

(e) VENUE.—Any suit pursuant to this section may be brought in any United 

States district court in the State in which any non-Federal party to the suit is situated. 

SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 

(a) IN GENERAL.—There is authorized to be appropriated to the Secretary such 

sums as may be necessary to meet the obligations of the Secretary under the Program Documents, to remain available until expended. 

(b) NON-REIMBURSABLE AND NON-RETURNABLE.—All amounts appropriated to and 

expended by the Secretary for the LCR MSCP shall be non-reimbursable and nonreturnable. 

PURPOSE OF THE MEASURE

The purpose of H.R. 2515 is to authorize appropriations for the 

Bureau of Reclamation to carry out the Lower Colorado River 

Multi-Species Conservation Program in the States of Arizona, California, and Nevada, and for other purposes. 

BACKGROUND AND NEED

The Lower Colorado River Multi-Species Conservation Program 

(MSCP) is a cooperative effort among 50 federal and non-federal 

entities in Arizona, California, and Nevada to protect 27 endangered, threatened and sensitive species on the Lower Colorado 

River (from Lake Mead to the Mexican border—approximately 400 

river miles). Implementation and compliance with the program provides the basis for incidental take authorizations under the Endangered Species Act (ESA), which allows affected water and power 

agencies in the three states to continue operations under specified 

conditions. 

Specifically, the MSCP is defined by several program documents 

including a habitat conservation plan, biological assessment, bioVerDate Aug 31 2005 01:01 Jun 18, 2008 Jkt 069010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR387.XXX SR387

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logical opinion, and an environmental impact statement. The Program is expected to create over 8,100 acres of riparian, marsh, and 

backwater habitat for the covered species, and is to rear and stock 

over 1.2 million fish to augment populations of the two endangered 

fish at issue. The MSCP also provides for maintenance of existing 

high-quality habitat, and a research, monitoring, and adaptive 

management effort to ensure that Program elements are effective 

in helping conserve covered species. Overall, it is expected that the 

MSCP will cost over $600,000,000 (2003 dollars) over a 50-year 

time frame. These costs are to be split 50/50 between the federal 

government and the participating non-federal entities. H.R. 2515 

will ensure that the program is implemented consistent with the 

program documents. 

LEGISLATIVE HISTORY

H.R. 2515 was introduced by Rep. Dean Heller on May 24, 2007, 

and referred to the Committee on Natural Resources. Representatives Shelley Berkley, Ken Calvert, Trent Franks, Harry Mitchell, 

Jon Porter, George Radonovich, Rick Renzi, and John Shadegg are 

co-sponsors. Under suspension of the rules, H.R. 2515 passed the 

House of Representatives on March 31, 2008 and was referred to 

the Committee on Energy and Natural Resources. A companion 

measure, S. 300 was introduced by Senator Kyl on January 16, 

2007, and referred to the Committee on Energy and Natural Resources. Senators Reid, Ensign, and Feinstein are co-sponsors. The 

Subcommittee on Water & Power held a hearing on S. 300 on July 

26, 2007. (S. Hrg. 110–152.) At its business meeting on May 7, 

2008, the Committee on Energy and Natural Resources ordered 

H.R. 2515 favorably reported as amended. 

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on May 7, 2008, by voice vote of a quorum present, 

recommends that the Senate pass H.R. 2515, if amended as described herein. 

COMMITTEE AMENDMENT

During the consideration of H.R. 2515, the Committee adopted a 

substitute amendment to improve the bill. The substitute amendment modifies definitions contained in the bill, removes provisions 

unnecessary to implement the program, and modifies a provision 

providing a limited waiver of the United States’ sovereign immunity to allow the non-Federal parties to seek enforcement of the 

program documents. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides the short title of the Act. 

Section 2 defines terms used in the Act. 

Section 3(a) authorizes the Secretary to participate in the MSCP 

consistent with the program documents. 

Section 3(b) authorizes the Secretary to enter into an agreement 

with the States of Arizona, Nevada, and California concerning the 

use of Colorado River water for purposes of implementing the 


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MSCP. The agreement is expected to be executed after enactment 

of the bill. 

Section 4(a) authorizes any party to certain agreements related 

to the MSCP, or a permittee under the ESA, to commence a civil 

suit in Federal court to adjudicate rights and obligations under the 

MSCP. 

Section 4(b) establishes jurisdiction by the Federal district court 

over actions authorized by subsection (a). 

Section 4(c) establishes that the United States’ sovereign immunity is waived for the limited purposes set forth, and that it may 

be named as a defendant in actions authorized by subsection (a). 

Section 4(d) disclaims that anything in section 4 limits any rights 

under Federal or state law, except as may be specifically provided. 

Section 4(e) declares the proper venue for actions brought under 

section 4. 

Section 5(a) authorizes appropriations for the Federal share of 

the MSCP. 

Section 5(b) declares that any amounts appropriated and expended are non-reimbursable to the United States. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

H.R. 2515—Lower Colorado River Multi-Species Conservation Program Act 

H.R. 2515 would authorize the Secretary of the Interior to participate in the Lower Colorado River Multi-Species Conservation 

Program. That program is a collaborative effort between the federal 

government and entities in the states of Nevada, Arizona, and California to address the needs of threatened and endangered fish and 

wildlife along the lower Colorado River while ensuring consistent 

water and electric power deliveries to the states involved in the 

program. 

Based on information from the Bureau of Reclamation, CBO estimates that implementing the program would cost approximately 

$70 million over the next five years and several hundred million 

dollars over the 50-year life of the program. The bureau, however, 

has been implementing the program since 2005 under existing authorities, and this legislation would not authorize any activities beyond those in which the bureau already is engaged. Hence, CBO 

estimates that implementing this act would not significantly affect 

the federal budget. Enacting the legislation would not affect direct 

spending or revenues. 

H.R. 2515 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

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

On March 24, 2008, CBO transmitted a cost estimate for H.R. 

2515, the Lower Colorado River Multi-Species Conservation Program Act, as ordered reported by the House Committee on Natural 

Resources on March 12, 2008. The two versions of the legislation 

are similar, and the estimated costs are the same. 

The CBO staff contact for this estimate is Tyler Kruzich. This estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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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. 2515. 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 H.R. 2515, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

H.R. 2515, as reported, does not contain any congressionally directed spending items, limited tax benefits, or limited tariff benefits as defined by rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the Bureau of Reclamation at the 

Senate Committee on Energy and Natural Resources subcommittee 

hearing on companion measure S. 300 follows: 

STATEMENT OF LARRY TODD, DEPUTY COMMISSIONER, BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR

Mr. Chairman and members of the Subcommittee, my 

name is Larry Todd and I am here today to present the 

views of the Department of the Interior on S. 300, a bill 

to authorize a habitat conservation program on the lower 

Colorado River in the States of Arizona, California, and 

Nevada. 

S. 300 authorizes the Lower Colorado River Multi-Species Conservation Program (LCR MSCP) and addresses 

issues associated with implementation of the program, including Colorado River water use, investment of appropriated funds, and the enforceability of program documents. The Lower Colorado River is a critical resource to 

citizens of the Southwest. Maintaining compliance with 

the Endangered Species Act and avoiding water supply 

conflicts that have been occurring in other areas of the 

West is critical to the Department. The Department supports the LCR MSCP as well as the intent of S. 300 to further this program. However, the Department remains concerned about language in Section 2, 4(b), 5(c), and 5(d), 

which I will discuss below. 

The LCR MSCP was developed through a collaborative 

partnership with State leaders, local stakeholders and the 

Administration. This innovative program addresses the 

needs of threatened and endangered fish and wildlife on 

the lower Colorado River while assuring greater reliability 

of water deliveries and hydropower production. By meeting 

the needs of fish and wildlife listed under the Endangered 

Species Act, as well as preventing the need to list additional species, the plan provides greater certainty of continued water and power supplies from the river for NeVerDate Aug 31 2005 01:01 Jun 18, 2008 Jkt 069010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6969 E:\HR\OC\SR387.XXX SR387

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vada, California and Arizona—and is designed to allow future water transfers within or among water users for a 50- 

year period. 

Reclamation began work to develop the LCR MSCP in 

1997 and the program was formally approved and adopted 

by Secretary Norton in 2005. Under existing authorities, 

Reclamation has been implementing activities that are 

similar in nature to those described in this program since 

1997 when the U.S. Fish and Wildlife Service issued a Biological Opinion for southwestern willow flycatcher, bony 

tail chub, Yuma clapper rail and razorback sucker fish. In 

2001, Reclamation adopted interim Surplus Guidelines 

that define when water operations can provide surplus 

water to water users in the Lower Colorado River Basin, 

and the Biological Opinion for that action is being implemented through the LCR MSCP. With these and other actions, Reclamation has been meeting the requirements of 

the Endangered Species Act (ESA) for over a decade. Reclamation has spent a total of $9.5 million in FY2004 and FY2005, and spent $13 million in FY2006 from both 

Federal and non-Federal sources pursuant to the Program’s Funding and Management Agreement with nonFederal entities. The LCR MSCP Steering Committee supports a budget of over $16 million for FY 2007. In addition 

to establishing over 270 acres of new habitat along the 

Colorado River, Reclamation has stocked 46,079 razorback 

suckers and 14,836 bony tail chub into the lower Colorado 

River since 2004. A significant amount of money has been 

spent on the research and monitoring needed to develop a 

sound scientific foundation for this 50-year program. Accomplishment reports for FY2004 and FY2005 have been 

approved by the MSCP Steering Committee, reviewed by 

the U.S. Fish and Wildlife Service, and found to be in compliance with the LCR MSCP ESA Section 10 Permit. The 

FY2006 report has been approved by the Steering Committee and U.S. Fish and Wildlife Service. All reports can 

be found on Reclamation’s website at www.lcrmscp.gov. 

In Reclamation’s FY2008 budget, which is awaiting Congressional approval, $7 million has been identified from 

Federal funding for the program, with a $7 million match 

from non-Federal partners. 

Since presenting testimony on H.R. 5180 last year, the 

Department is pleased to report progress toward resolving 

issues surrounding section 3(b). As written, this Section 

would direct the Secretary to enter into an agreement with 

the States of Arizona, California and Nevada providing for 

the use of Colorado River water specifically for habitat creation and maintenance purposes. The Department believes 

that through existing contract terms, willing seller transactions, and current policies, Reclamation can utilize Colorado River (and non-Colorado River) water to implement 

the program. However, Reclamation has made progress 

with our funding partners in the Lower Basin States to develop an agreement acceptable to all parties on the use of 

Colorado River water for program purposes. Such an 


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agreement could facilitate program implementation, and 

we look forward to continuing productive efforts with our 

partners on this proposed agreement. 

We do have a couple of concerns with provisions contained in S. 300. The geographic definition of the Lower 

Colorado River in section 2 should be clarified to match 

that contained in the MSCP Program Documents. The Administration cannot support the language in section 4(b) of 

this bill allowing the Secretary to invest appropriated 

moneys that are not required to meet current program expenditures. Investing appropriations provides additional 

moneys to finance a governmental purpose outside of the 

normal appropriations process. 

We are also concerned about section 5(c), which addresses judicial review of program documents. We note that this 

provision has been modified from the language introduced 

in the last session of Congress, and that language has 

been added clarifying that the United States would not be 

liable for claims for money damages. Nevertheless, we 

have been advised by the Department of Justice and we 

are concerned that this provision could expand Federal litigation exposure in significant respects and open the door 

for judicial intrusion into administrative decision making. 

We would appreciate the opportunity to continue to work 

with the committee to address our concerns regarding section 5(c). 

Section 5(d) seeks an explicit exemption from the Federal Advisory Committee Act. The Department believes 

that this exemption is not necessary as the program was 

determined by the Director of the U.S. Fish and Wildlife 

Service to be an Ecosystem Recovery and Implementation 

Team (ECRIT) pursuant to section 4(f)(2) of the ESA, 

thereby making the LCR MSCP Steering Committee exempt. Therefore, we believe section 5(d) is superfluous and 

we recommend deleting it. 

The Department already has clear authorities to administer this program under existing statutes, and Reclamation began actively implementing the full LCR MSCP program in 2005. Through implementation of this program, 

the likelihood of a water conflict on the lower Colorado 

River is reduced. 

The Department supports the LCR MSCP and will continue to work with interested stakeholders that seek to enhance the program. Thank you for the opportunity to comment on this legislation. We look forward to working with 

you on the various concerns we have. I am happy to take 

any questions. 

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 H.R. 2515, as ordered reported. 

Æ 


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