II 

109TH CONGRESS 

1ST SESSION 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. 

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 

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—

5 (1) ‘‘Secretary’’ means the Secretary of the In6 terior, acting through the Commissioner of Reclama7 tion; 
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1 (2) ‘‘Reclamation’’ means the Bureau of Rec2 lamation, United States Department of the Interior; 

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

4 means ladders, collection devices, and all other kinds 

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

6 or around water diversion structures; facilities and 

7 other constructed works which modify, consolidate, 

8 or replace water diversion structures in order to 

9 achieve fish passage; screens and other devices which 

10 reduce or prevent entrainment and impingement of 

11 fish in a water diversion, delivery, or distribution 

12 system; and any other facilities, projects, or con13 structed works or strategies which are designed to 

14 provide for or improve fish passage while maintain15 ing water deliveries and to reduce or prevent en16 trainment and impingement of fish in a water stor17 age, diversion, delivery, or distribution system of a 

18 water project; 

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

20 water resources development project constructed, op21 erated, and maintained pursuant to the Reclamation 

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

23 thereof and supplementary thereto; 

24 (5) ‘‘Non-Federal party’’ means any non-Fed25 eral party, including federally recognized Indian 
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1 tribes, non-Federal governmental and quasi-govern2 mental entities, private entities (both profit and non3 profit organizations), and private individuals; 

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

5 drainage area of the Snake River, including all trib6 utaries, from the headwaters to the confluence of the 

7 Snake River with the Columbia River; 

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

9 drainage area of the Columbia River located in the 

10 United States, including all tributaries, from the 

11 headwaters to the Columbia River estuary; and 

12 (8) ‘‘Habitat improvements’’ means work to im13 prove habitat for aquatic plants and animals within 

14 a currently existing stream channel below the ordi15 nary high water mark, including stream reconfigura16 tion to rehabilitate and protect the natural function 

17 of streambeds, and riverine wetland construction and 

18 protection. 

19 SEC. 2. AUTHORIZATION. 

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

21 this Act, the Secretary is authorized to plan, design, and 

22 construct, or provide financial assistance to non-Federal 

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

24 screening facilities or habitat improvements at any non25 Federal water diversion or storage project located any-
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1 where in the Columbia River Basin when the Secretary 

2 determines that such facilities would enable Reclamation 

3 to meet its obligations under section 7(a)(2) of the Endan4 gered Species Act of 1973 (16 U.S.C. 1536(a)(2)) regard5 ing the construction and continued operation and mainte6 nance of all Federal reclamation projects located in the 

7 Columbia River Basin, excluding the Federal reclamation 

8 projects located in the Snake River Basin. 

9 (b) PROHIBITION OF ACQUISITION OF LAND FOR

10 HABITAT IMPROVEMENTS.—Notwithstanding subsection 

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

12 for habitat improvements. 

13 SEC. 3. LIMITATIONS. 

14 (a) WRITTEN AGREEMENT.—The Secretary may un15 dertake the construction of, or provide financial assistance 

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

17 fish passage and screening facilities at non-Federal water 

18 diversion and storage projects or habitat improvements lo19 cated anywhere in the Columbia River Basin only after 

20 entering into a voluntary, written agreement with the non21 Federal party or parties who own, operate, or maintain 

22 the project, or any associated lands involved. 

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

24 total costs of constructing the fish passage and screening 
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1 facility or habitat improvements shall be not more than 

2 75 percent. 

3 (c) NON-FEDERAL SHARE.—

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

5 written agreement entered into under subsection (a) 

6 shall provide that the non-Federal party agrees to 

7 pay the non-Federal share of the total costs of con8 structing the fish passage and screening facility or 

9 habitat improvements. 

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

11 the form of cash or in-kind services. 

12 (3) The Secretary shall—

13 (A) require the non-Federal party to pro14 vide appropriate documentation of any in-kind 

15 services provided; and 

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

17 services. 

18 (4) The requirements of this subsection shall 

19 not apply to Indian tribes. 

20 (d) GRANT AND COOPERATIVE AGREEMENTS.—Any 

21 financial assistance made available pursuant to this Act 

22 shall be provided through grant agreements or cooperative 

23 agreements entered into pursuant to and in compliance 

24 with chapter 63 of title 31, United States Code. 
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1 (e) TERMS AND CONDITIONS.—The Secretary may 

2 require such terms and conditions as will ensure perform3 ance by the non-Federal party, protect the Federal invest4 ment in fish passage and screening facilities or habitat im5 provements, define the obligations of the Secretary and 

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

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

8 (f) RIGHTS AND DUTIES OF NON-FEDERAL PAR9 TIES.—All right and title to, and interest in, any fish pas10 sage and screening facilities constructed or funded pursu11 ant to the authority of this Act shall be held by the non12 Federal party or parties who own, operate, and maintain 

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

14 any associated lands, involved. The operation, mainte15 nance, and replacement of such facilities shall be the sole 

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

17 project cost assignable to any Federal reclamation project. 

18 SEC. 4. OTHER REQUIREMENTS. 

19 (a) PERMITS.—The Secretary may assist a non-Fed20 eral party who owns, operates, or maintains a non-Federal 

21 water diversion or storage project, and any associated 

22 lands, to obtain and comply with any required State, local, 

23 or tribal permits. 

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

25 Secretary shall be subject to all Federal laws applicable 
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1 to activities associated with the construction of a fish pas2 sage and screening facility or habitat improvements. 

3 (c) STATE WATER LAW.—

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

5 comply with any applicable State water laws. 

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

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

8 any other entity or person. 

9 (d) REQUIRED COORDINATION.—The Secretary shall 

10 coordinate with the Northwest Power and Conservation 

11 Council; appropriate agencies of the States of Idaho, Or12 egon, and Washington; and appropriate federally recog13 nized Indian tribes in carrying out the program authorized 

14 by this Act. 

15 SEC. 5. INAPPLICABILITY OF FEDERAL RECLAMATION LAW. 

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

17 Stat. 388), and Acts amendatory thereof and supple18 mentary thereto, shall not apply to the non-Federal water 

19 projects at which the fish passage and screening facilities 

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

21 such projects irrigate. 

22 (b) NONREIMBURSABLE AND NONRETURNABLE EX23 PENDITURES.—Notwithstanding any provision of law to 

24 the contrary, the expenditures made by the Secretary pur25 suant to this Act shall not be a project cost assignable 
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1 to any Federal reclamation project (either as a construc2 tion cost or as an operation and maintenance cost) and 

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

4 United States Treasury. 

5 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

6 There are authorized to be appropriated such 

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

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