109TH CONGRESS

1ST SESSION S. 232

AN ACT

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,
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1 SECTION 1. DEFINITIONS.

2 As used in this Act—

3 (1) ‘‘Secretary’’ means the Secretary of the In4 terior, acting through the Commissioner of Reclama5 tion;

6 (2) ‘‘Reclamation’’ means the Bureau of Rec7 lamation, United States Department of the Interior;

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

9 means ladders, collection devices, and all other kinds

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

11 or around water diversion structures; facilities and

12 other constructed works which modify, consolidate,

13 or replace water diversion structures in order to

14 achieve fish passage; screens and other devices which

15 reduce or prevent entrainment and impingement of

16 fish in a water diversion, delivery, or distribution

17 system; and any other facilities, projects, or con18 structed works or strategies which are designed to

19 provide for or improve fish passage while maintain20 ing water deliveries and to reduce or prevent en21 trainment and impingement of fish in a water stor22 age, diversion, delivery, or distribution system of a

23 water project;

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

25 water resources development project constructed, op26 erated, and maintained pursuant to the Reclamation
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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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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.

Passed the Senate July 26, 2005.

Attest:

Secretary.
109TH CONGRESS

1ST SESSION S. 232

AN ACT

To authorize the Secretary of the Interior, acting

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