II 

Calendar No. 44 

109TH CONGRESS 

1ST SESSION S. 232 

[Report No. 109–31] 

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. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 1, 2005 

Mr. SMITH introduced the following bill; which was read twice and referred 

to the Committee on Energy and Natural Resources 

MARCH 10, 2005 

Reported by Mr. DOMENICI, without amendment 

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 non-Federal water projects, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. DEFINITIONS. 

4 As used in this Act— 
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•S 232 RS

1 (1) ‘‘Secretary’’ means the Secretary of the In2 terior, acting through the Commissioner of Reclama3 tion; 

4 (2) ‘‘Reclamation’’ means the Bureau of Rec5 lamation, United States Department of the Interior; 

6 (3) ‘‘Fish passage and screening facilities’’ 

7 means ladders, collection devices, and all other kinds 

8 of facilities which enable fish to pass through, over, 

9 or around water diversion structures; facilities and 

10 other constructed works which modify, consolidate, 

11 or replace water diversion structures in order to 

12 achieve fish passage; screens and other devices which 

13 reduce or prevent entrainment and impingement of 

14 fish in a water diversion, delivery, or distribution 

15 system; and any other facilities, projects, or con16 structed works or strategies which are designed to 

17 provide for or improve fish passage while maintain18 ing water deliveries and to reduce or prevent en19 trainment and impingement of fish in a water stor20 age, diversion, delivery, or distribution system of a 

21 water project; 

22 (4) ‘‘Federal reclamation project’’ means a 

23 water resources development project constructed, op24 erated, and maintained pursuant to the Reclamation 
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•S 232 RS

1 Act of 1902 (32 Stat. 388), and acts amendatory 

2 thereof and supplementary thereto; 

3 (5) ‘‘Non-Federal party’’ means any non-Fed4 eral party, including federally recognized Indian 

5 tribes, non-Federal governmental and quasi-govern6 mental entities, private entities (both profit and non7 profit organizations), and private individuals; 

8 (6) ‘‘Snake River Basin’’ means the entire 

9 drainage area of the Snake River, including all trib10 utaries, from the headwaters to the confluence of the 

11 Snake River with the Columbia River; 

12 (7) ‘‘Columbia River Basin’’ means the entire 

13 drainage area of the Columbia River located in the 

14 United States, including all tributaries, from the 

15 headwaters to the Columbia River estuary; and 

16 (8) ‘‘Habitat improvements’’ means work to im17 prove habitat for aquatic plants and animals within 

18 a currently existing stream channel below the ordi19 nary high water mark, including stream reconfigura20 tion to rehabilitate and protect the natural function 

21 of streambeds, and riverine wetland construction and 

22 protection. 

23 SEC. 2. AUTHORIZATION. 

24 (a) IN GENERAL.—Subject to the requirements of 

25 this Act, the Secretary is authorized to plan, design, and 
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•S 232 RS

1 construct, or provide financial assistance to non-Federal 

2 parties to plan, design, and construct, fish passage and 

3 screening facilities or habitat improvements at any non4 Federal water diversion or storage project located any5 where in the Columbia River Basin when the Secretary 

6 determines that such facilities would enable Reclamation 

7 to meet its obligations under section 7(a)(2) of the Endan8 gered Species Act of 1973 (16 U.S.C. 1536(a)(2)) regard9 ing the construction and continued operation and mainte10 nance of all Federal reclamation projects located in the 

11 Columbia River Basin, excluding the Federal reclamation 

12 projects located in the Snake River Basin. 

13 (b) PROHIBITION OF ACQUISITION OF LAND FOR

14 HABITAT IMPROVEMENTS.—Notwithstanding subsection 

15 (a), nothing in this Act authorizes the acquisition of land 

16 for habitat improvements. 

17 SEC. 3. LIMITATIONS. 

18 (a) WRITTEN AGREEMENT.—The Secretary may un19 dertake the construction of, or provide financial assistance 

20 covering the cost to the non-Federal parties to construct, 

21 fish passage and screening facilities at non-Federal water 

22 diversion and storage projects or habitat improvements lo23 cated anywhere in the Columbia River Basin only after 

24 entering into a voluntary, written agreement with the non- 
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1 Federal party or parties who own, operate, or maintain 

2 the project, or any associated lands involved. 

3 (b) FEDERAL SHARE.—The Federal share of the 

4 total costs of constructing the fish passage and screening 

5 facility or habitat improvements shall be not more than 

6 75 percent. 

7 (c) NON-FEDERAL SHARE.— 

8 (1) Except as provided in paragraph (4), a 

9 written agreement entered into under subsection (a) 

10 shall provide that the non-Federal party agrees to 

11 pay the non-Federal share of the total costs of con12 structing the fish passage and screening facility or 

13 habitat improvements. 

14 (2) The non-Federal share may be provided in 

15 the form of cash or in-kind services. 

16 (3) The Secretary shall— 

17 (A) require the non-Federal party to pro18 vide appropriate documentation of any in-kind 

19 services provided; and 

20 (B) determine the value of the in-kind 

21 services. 

22 (4) The requirements of this subsection shall 

23 not apply to Indian tribes. 

24 (d) GRANT AND COOPERATIVE AGREEMENTS.—Any 

25 financial assistance made available pursuant to this Act 
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1 shall be provided through grant agreements or cooperative 

2 agreements entered into pursuant to and in compliance 

3 with chapter 63 of title 31, United States Code. 

4 (e) TERMS AND CONDITIONS.—The Secretary may 

5 require such terms and conditions as will ensure perform6 ance by the non-Federal party, protect the Federal invest7 ment in fish passage and screening facilities or habitat im8 provements, define the obligations of the Secretary and 

9 the non-Federal party, and ensure compliance with this 

10 Act and all other applicable Federal, State, and local laws. 

11 (f) RIGHTS AND DUTIES OF NON-FEDERAL PAR12 TIES.—All right and title to, and interest in, any fish pas13 sage and screening facilities constructed or funded pursu14 ant to the authority of this Act shall be held by the non15 Federal party or parties who own, operate, and maintain 

16 the non-Federal water diversion and storage project, and 

17 any associated lands, involved. The operation, mainte18 nance, and replacement of such facilities shall be the sole 

19 responsibility of such party or parties and shall not be a 

20 project cost assignable to any Federal reclamation project. 

21 SEC. 4. OTHER REQUIREMENTS. 

22 (a) PERMITS.—The Secretary may assist a non-Fed23 eral party who owns, operates, or maintains a non-Federal 

24 water diversion or storage project, and any associated 
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1 lands, to obtain and comply with any required State, local, 

2 or tribal permits. 

3 (b) FEDERAL LAW.—In carrying out this Act, the 

4 Secretary shall be subject to all Federal laws applicable 

5 to activities associated with the construction of a fish pas6 sage and screening facility or habitat improvements. 

7 (c) STATE WATER LAW.— 

8 (1) In carrying out this Act, the Secretary shall 

9 comply with any applicable State water laws. 

10 (2) Nothing in this Act affects any water or 

11 water-related right of a State, an Indian tribe, or 

12 any other entity or person. 

13 (d) REQUIRED COORDINATION.—The Secretary shall 

14 coordinate with the Northwest Power and Conservation 

15 Council; appropriate agencies of the States of Idaho, Or16 egon, and Washington; and appropriate federally recog17 nized Indian tribes in carrying out the program authorized 

18 by this Act. 

19 SEC. 5. INAPPLICABILITY OF FEDERAL RECLAMATION LAW. 

20 (a) IN GENERAL.—The Reclamation Act of 1902 (32 

21 Stat. 388), and Acts amendatory thereof and supple22 mentary thereto, shall not apply to the non-Federal water 

23 projects at which the fish passage and screening facilities 

24 authorized by this Act are located, nor to the lands which 

25 such projects irrigate. 
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1 (b) NONREIMBURSABLE AND NONRETURNABLE EX2 PENDITURES.—Notwithstanding any provision of law to 

3 the contrary, the expenditures made by the Secretary pur4 suant to this Act shall not be a project cost assignable 

5 to any Federal reclamation project (either as a construc6 tion cost or as an operation and maintenance cost) and 

7 shall be non-reimbursable and non-returnable to the 

8 United States Treasury. 

9 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

10 There are authorized to be appropriated such 

11 amounts as are necessary for the purposes of this Act. 

Calendar No. 44 

109TH CONGRESS 

1ST SESSION S. 232 

[Report No. 109–31] 

A BILL 

To authorize the Secretary of the Interior, acting 

other purposes. facilities at non-Federal water projects, and for the implementation of fish passage and screening through the Bureau of Reclamation, to assist in 

MARCH 10, 2005 

Reported without amendment