103D CONGRESS

2D SESSION H. R. 5148

AN ACT

To authorize certain elements of the Yakima River Basin

Water Enhancement Project, 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. PURPOSES.

4 The purposes of this Act are—

5 (1) to protect, mitigate, and enhance fish and

6 wildlife through improved water management; im7 proved instream flows; improved water quality; pro8 tection, creation and enhancement of wetlands; and

9 by other appropriate means of habitat improvement;
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1 (2) to improve the reliability of water supply for

2 irrigation;

3 (3) to authorize a Yakima River basin water

4 conservation program that will improve the efficiency

5 of water delivery and use; enhance basin water sup6 plies; improve water quality; protect, create and en7 hance wetlands; and determine the amount of basin

8 water needs that can be met by water conservation

9 measures;

10 (4) to realize sufficient water savings from the

11 Yakima River Basin Water Conservation Program

12 so that not less than 40,000 acre-feet of water sav13 ings per year are achieved by the end of the fourth

14 year of the Basin Conservation Program, and not

15 less than 110,000 acre-feet of water savings per year

16 are achieved by the end of the eighth year of the

17 program, to protect and enhance fish and wildlife re18 sources; and not less than 55,000 acre feet of water

19 savings per year are achieved by the end of the

20 eighth year of the program for availability for irriga21 tion;

22 (5) to encourage voluntary transactions among

23 public and private entities which result in the imple24 mentation of water conservation measures, practices,

25 and facilities; and
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1 (6) to provide for the implementation by the

2 Yakama Indian Nation at its sole discretion of (A)

3 an irrigation demonstration project on the Yakama

4 Indian Reservation using water savings from system

5 improvements to the Wapato Irrigation Project, and

6 (B) a Toppenish Creek corridor enhancement project

7 integrating agricultural, fish, wildlife, and cultural

8 resources.

9 SEC. 2. DEFINITIONS.

10 As used in this Act:

11 (1) The term ‘‘Basin Conservation Plan’’ means

12 a plan for implementing water conservation meas13 ures found in the various water conservation plans

14 developed under the Basin Conservation Program.

15 (2) The term ‘‘Basin Conservation Program’’

16 means the Yakima River Basin Water Conservation

17 Program established under section 3(a).

18 (3) The term ‘‘comprehensive basin operating

19 plan’’ means a plan that will provide guidance to the

20 Yakima Project Superintendent for operation of the

21 existing Yakima Project as modified by actions

22 taken pursuant to this Act.

23 (4) The term ‘‘Conservation Advisory Group’’

24 means the Yakima River Basin Conservation Advi25 sory Group established under section 3(c).
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1 (5) The term ‘‘conserved water’’ means water

2 saved and attributable to the program established

3 under the Basin Conservation Program.

4 (6) The term ‘‘Irrigation Demonstration

5 Project’’ means the Yakama Indian Reservation Irri6 gation Demonstration Project authorized in section

7 4(b).

8 (7) The term ‘‘nonproratable water’’ means

9 that portion of the total water supply available

10 under provisions of sections 18 and 19 of Civil Ac11 tion No. 21 (Federal District Court Judgment of

12 January 31, 1945) that is not subject to proration

13 in times of water shortage.

14 (8) The term ‘‘on-district storage’’ means small

15 water storage facilities located within the boundaries

16 of an irrigation entity, including reregulating res17 ervoirs, holding ponds, or other new storage methods

18 which allow for efficient water use.

19 (9) The term ‘‘proratable water’’ means that

20 portion of the total water supply available under

21 provisions of sections 18 and 19 of Civil Action No.

22 21 (Federal District Court Judgment of January 31,

23 1945) that is subject to proration in times of water

24 shortage.
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1 (10) The term ‘‘Secretary’’ means the Secretary

2 of the Interior.

3 (11) The term ‘‘System Operations Advisory

4 Committee’’ means a group of fishery biologists—

5 (A) created by the Yakima Project Super6 intendent in response to the supplemental in7 structions entitled ‘‘Supplementary Instructions

8 to the Water Master’’, and dated November 28,

9 1980, in the case of Kittitass Reclamation Dis10 trict, et al. vs. the Sunnyside Valley Irrigation

11 District, et al. (E.D. Wash., Civil No. 21.);

12 (B) who advise the Yakima Project Super13 intendent on operations of the Yakima Project

14 for fish and wildlife purposes; and

15 (C) who, together with others, were identi16 fied for consultation on November 29, 1990, in

17 the amended partial summary judgment entered

18 in the basin adjudication (Yakima County Su19 perior Court No. 77–2–01484–5).

20 (12) The term ‘‘Toppenish Enhancement

21 Project’’ means the Toppenish Creek corridor en22 hancement project authorized by section 4(c).

23 (13) The term ‘‘Yakama Indian Nation’’ means

24 the Confederated Tribes and Bands of the Yakama

25 Indian Nation as redesignated under section 4(g).
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1 (14) The term ‘‘Yakima Project Superintend2 ent’’ means the individual designated by the Re3 gional Director, Pacific Northwest Region, Bureau

4 of Reclamation, to be responsible for the operation

5 and management of the Yakima Federal Reclama6 tion Project, Washington.

7 SEC. 3. YAKIMA RIVER BASIN WATER CONSERVATION PRO8 GRAM.

9 (a) ESTABLISHMENT.—(1) The Secretary, in con10 sultation with the State of Washington, the Yakama In11 dian Nation, Yakima River basin irrigators, and other in12 terested parties, shall establish and administer a Yakima

13 River Basin Water Conservation Program for the purpose

14 of evaluating and implementing measures to improve the

15 availability of water supplies for irrigation and the protec16 tion and enhancement of fish and wildlife resources, in17 cluding wetlands, while improving the quality of water in

18 the Yakima Basin. The Secretary may make grants to eli19 gible entities for the purposes of carrying out this Act

20 under such terms and conditions as the Secretary may re21 quire. Such terms and conditions shall include a require22 ment that all water districts, irrigation districts, individ23 uals, or other entities eligible to participate in the Basin

24 Conservation Program must equip all surface water deliv25 ery systems within their boundaries with volumetric water
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1 meters or equally effective water measuring methods with2 in 5 years of the date of enactment of this Act.

3 (2) Conserved water resulting in whole or in part

4 from the expenditure of Federal funds shall not be used

5 to expand irrigation in the Yakima Basin, except as spe6 cifically provided in section 4(a)(3) on the Yakama Indian

7 Reservation.

8 (3) The provisions of this section shall not apply to

9 the Yakama Indian Nation except as to any funds specifi10 cally applied for from the Basin Conservation Program.

11 (b) FOUR PHASES OF PROGRAM.—The Basin Con12 servation Program shall encourage and provide funding

13 assistance for four phases of water conservation, which

14 shall consist of the following:

15 (1) The development of water conservation

16 plans, consistent with applicable water conservation

17 guidelines of the Secretary, by irrigation districts,

18 conservation districts, water purveyors, other

19 areawide entities, and individuals not included with20 in an areawide entity.

21 (2) The investigation of the feasibility of spe22 cific potential water conservation measures identified

23 in conservation plans.
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1 (3) The implementation of measures that have

2 been identified in conservation plans and have been

3 determined to be feasible.

4 (4) Post implementation monitoring and evalua5 tion of implemented measures.

6 (c) CONSERVATION ADVISORY GROUP.—(1) Not later

7 than 12 months after the date of enactment of this Act,

8 the Secretary, in consultation with the State of Washing9 ton, the Yakama Indian Nation, Yakima River basin

10 irrigators, and other interested and related parties, shall

11 establish the Yakima River Basin Conservation Advisory

12 Group.

13 (2) Members of the Conservation Advisory Group

14 shall be appointed by the Secretary and shall be comprised

15 of—

16 (A) one representative of the Yakima River

17 basin nonproratable irrigators,

18 (B) one representative of the Yakima River

19 basin proratable irrigators,

20 (C) one representative of the Yakama Indian

21 Nation,

22 (D) one representative of environmental inter23 ests,

24 (E) one representative of the Washington State

25 University Agricultural Extension Service,
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1 (F) one representative of the Department of

2 Wildlife of the State of Washington, and

3 (G) one individual who shall serve as the

4 facilitator.

5 (3) The Conservation Advisory Group shall—

6 (A) provide recommendations to the Secretary

7 and to the State of Washington regarding the struc8 ture and implementation of the Basin Conservation

9 Program,

10 (B) provide recommendations to the Secretary

11 and to the State of Washington regarding the estab12 lishment of a permanent program for the measure13 ment and reporting of all natural flow and contract

14 diversions within the basin.

15 (C) structure a process to prepare a basin con16 servation plan as specified in subsection (f),

17 (D) provide annual review of the implementa18 tion of the applicable water conservation guidelines

19 of the Secretary, and

20 (E) provide recommendations consistent with

21 statutes of the State of Washington on rules, regula22 tions, and administration of a process to facilitate

23 the voluntary sale or lease of water.
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1 (4) The facilitator shall arrange for meetings of the

2 Conservation Advisory Group, provide logistical support,

3 and serve as moderator for the meetings.

4 (5) The Conservation Advisory Group shall consult

5 an irrigation district when considering actions specifically

6 affecting that district. For the purposes of this paragraph,

7 an irrigation district includes the Yakima Reservation Irri8 gation District.

9 (6) The Conservation Advisory Group shall be

10 nonvoting, seeking consensus whenever possible. If dis11 agreement occurs, any member may submit independent

12 comments to the Secretary. The Conservation Advisory

13 Group shall terminate 5 years after the date of its estab14 lishment unless extended by the Secretary.

15 (d) COST SHARING.—(1) Except as otherwise pro16 vided by this Act, costs incurred in the four phases of the

17 Basin Conservation Program shall be shared as follows:

Program Phase

Non-Federal Federal

Grant State Grant Local

1. Development of water conservation

plans

50% but

not more

than

$200,000

per recipient

(Residual

amount if

any)

50%
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Program Phase

Non-Federal Federal

Grant State Grant Local

2. Investigation of specific water conservation measures50% but

sum of 1

and 2 not

greater

than

$200,000

per recipient

20% after

deducting

State

funds for

Item 2

Residual

amount

after deducting

State and

local

funds for

Item 2

3 and 4. Implementation and post implementation monitoring and evaluation17.5% 17.5% 65.0%

1 (2) The Yakima River Basin Water Enhancement

2 Project is a Federal action to improve streamflow and fish

3 passage conditions and shall be considered part of a com4 prehensive program to restore the Yakima River basin

5 anadromous fishery resource. Related fishery resource im6 provement facilities which utilize funding sources under

7 the Pacific Northwest Electric Power Planning and Con8 servation Act of 1989 (94 Stat. 2697) and independent

9 water-related improvements of the State of Washington

10 and other public and private entities to improve irrigation

11 water use, water supply, and water quality, shall be

12 treated as non-Federal cost share expenditures and shall

13 be consolidated in any final calculation of required cost

14 sharing. Within one year of the date of enactment of this

15 Act, the Secretary shall enter into a binding cost sharing

16 agreement with the State of Washington. The agreement

17 shall describe the terms and conditions of specific con18 tributions and other activities that may, subject to ap-
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1 proval by the Secretary, qualify as non-Federal cost share

2 expenditures.

3 (3) Costs of the Basin Conservation Program related

4 to projects on the Yakama Indian Reservation are a Fed5 eral responsibility and shall be nonreimbursable and not

6 subject to the cost-sharing provisions of this subsection.

7 (e) ENTITY WATER CONSERVATION PLANS.—To par8 ticipate in the Conservation Basin Program an entity

9 must submit a proposed water conservation plan to the

10 Secretary. The Secretary shall approve a water conserva11 tion plan submitted under this subsection if the Secretary

12 determines that the plan meets the applicable water con13 servation guidelines of the Secretary.

14 (f) BASIN CONSERVATION PLAN.—The Conservation

Advisory Group shall, within 21 15 ⁄2 years after the date of

16 enactment of this Act, submit a draft basin conservation

17 plan to the Secretary.

18 (g) PUBLIC COMMENT.—The Secretary shall distrib19 ute the draft basin conservation plan and the entity water

20 conservation plans submitted under subsections (e) and

21 (f), respectively, for public comment for a 60-day period.

22 (h) PUBLICATION OF BASIN CONSERVATION PLAN.—

23 Within 60 days after the close of the comment period

24 under subsection (g), the Secretary shall publish the Basin

25 Conservation Plan which plan will provide the basis—
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1 (1) for prioritizing and allocating funds to im2 plement conservation measures under this Act; and

3 (2) for preparing an interim comprehensive

4 basin operating plan under section 10 of this Act as

5 provided for in Public Law 96–162 (93 Stat. 1241).

6 (i) CONSERVATION MEASURES.—(1) Measures con7 sidered for implementation in the Basin Conservation Pro8 gram may include, among others, conveyance and distribu9 tion system monitoring, automation of water conveyance

10 systems, water measuring or metering devices and equip11 ment, lining and piping of water conveyance and distribu12 tion systems, on-district storage, electrification of hydrau13 lic turbines, tail-water recycling, consolidation of irrigation

14 systems, irrigation scheduling, and improvement of on15 farm water application systems. Basin Conservation Pro16 gram funds may also be used throughout all four phases

17 of the Basin Conservation Program to mitigate for adverse

18 impacts of program measures.

19 (2) In addition to implementing existing technologies,

20 the Secretary shall encourage the testing of innovative

21 water conservation measures. The Secretary shall, to the

22 maximum extent possible under applicable Federal, State,

23 and tribal law, cooperate with the State of Washington

24 to facilitate water and water right transfers, water bank25 ing, dry year options, the sale and leasing of water, and
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1 other innovative allocation tools used to maximize the util2 ity of existing Yakima River basin water supplies.

3 (3) The Secretary may, consistent with applicable

4 law, use funds appropriated to carry out this section for

5 the purchase or lease of land, water, or water rights from

6 any entity or individual willing to limit or forego water

7 use on a temporary or permanent basis. Funds used for

8 purchase or lease under this paragraph are not subject

9 to the cost sharing provisions of subsection (d). Efforts

10 to acquire water should be made immediately upon avail11 ability of funds to meet the three-year goal specified in

12 section 5(a)(4) to provide water to be used by the Yakima

13 Project Superintendent under the advisement of the Sys14 tem Operations Advisory Committee for instream flow

15 purposes. The use of Basin Conservation Program funds

16 under this paragraph are in addition to those specifically

17 authorized to be appropriated by subsection (j)(4).

18 (4) On-farm water management improvements shall

19 be coordinated with programs administered by the Sec20 retary of Agriculture and State conservation districts.

21 (j) AUTHORIZATION OF APPROPRIATIONS.—There is

22 hereby authorized to be appropriated to the Secretary, at

23 September 1990 prices, plus or minus such amounts as

24 may be justified by reason of ordinary fluctuations of ap-
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1 plicable cost indexes, the following amounts for the Basin

2 Conservation Program:

3 (1) $1,000,000 for the development of water

4 conservation plans.

5 (2) $4,000,000 for investigation of specific po6 tential water conservation measures identified in

7 conservation plans for consideration for implement8 ing through the Basin Conservation Program.

9 (3) Up to $67,500,000 for design, implementa10 tion, post-implementation monitoring and evaluation

11 of measures, and addressing environmental impacts.

12 (4) Up to $10,000,000 for the initial acquisi13 tion of water from willing sellers or lessors specifi14 cally to provide instream flows for interim periods to

15 facilitate the outward migration of anadromous fish

16 flushing flows. Such funds shall not be subject to the

17 cost sharing provisions of subsection (d).

18 (5) $100,000 annually for the establishment

19 and support of the Conservation Advisory Group

20 during its duration. Such funds shall be available for

21 travel and per diem, rental of meeting rooms, typ22 ing, printing and mailing, and associated adminis23 trative needs. The Secretary and the State of Wash24 ington shall provide appropriate staff support to the

25 Conservation Advisory Group.
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1 SEC. 4. YAKAMA INDIAN NATION.

2 (a) WAPATO IRRIGATION PROJECT IMPROVEMENTS

3 AND APPROPRIATIONS.—(1) The Yakama Indian Nation’s

4 proposed system improvements to the Wapato Irrigation

5 Project, as well as the design, construction, operation, and

6 maintenance of the Irrigation Demonstration Project and

7 the Toppenish Creek corridor enhancement project, pursu8 ant to this Act shall be coordinated with the Bureau of

9 Indian Affairs.

10 (2) There is authorized to be appropriated to the Sec11 retary not more than $23,000,000 for the preparation of

12 plans, investigation of measures, and following the Sec13 retary’s certification that such measures are consistent

14 with the water conservation objectives of this Act, the im15 plementation of system improvements to the Wapato Irri16 gation Project. Funding for further improvements within

17 the Wapato Irrigation Project may be acquired under the

18 Basin Conservation Program or other sources identified

19 by the Yakama Indian Nation.

20 (3) Water savings resulting from irrigation system

21 improvements shall be available for the use of the Yakama

22 Indian Nation for irrigation and other purposes on the

23 reservation and for protection and enhancement of fish

24 and wildlife within the Yakima River basin. The convey25 ance of such water through irrigation facilities other than

26 the Wapato Irrigation Project shall be on a voluntary basis
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1 and shall not further diminish the amount of water that

2 otherwise would have been delivered by an entity to its

3 water users in years of water proration.

4 (b) IRRIGATION DEMONSTRATION PROJECT APPRO5 PRIATIONS.—(1)(A) There is hereby authorized to be ap6 propriated to the Secretary—

7 (i) at September 1990 prices, plus or minus

8 such amounts as may be justified by reason of ordi9 nary fluctuations of applicable cost indexes,

10 $8,500,000 for the design and construction of the

11 Yakama Indian Reservation Irrigation Demonstra12 tion Project; and

13 (ii) such sums as may be necessary for the op14 eration and maintenance of the Irrigation Dem15 onstration Project, including funds for administra16 tion, training, equipment, materials, and supplies for

17 the period specified by the Secretary, which sums

18 are in addition to operation and maintenance funds

19 for wildlife and cultural purposes appropriated to

20 the Secretary under other authorization.

21 (B) Funds may not be made available under this sub22 section until the Yakama Indian Nation obtains the con23 currence of the Secretary in the construction, manage24 ment, and administrative aspects of the Irrigation Dem25 onstration Project.
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1 (C) After the end of the period specified under sub2 paragraph (A)(ii), costs for the operation and maintenance

3 of the Irrigation Demonstration Project, including funds

4 for administration, training, equipment, materials, and

5 supplies referred to in that subparagraph, shall be borne

6 exclusively by the lands directly benefitting from the Irri7 gation Demonstration Project.

8 (2) The Irrigation Demonstration Project shall pro9 vide for the construction of distribution and on-farm irri10 gation facilities to use all or a portion of the water savings,

11 as determined by the Yakama Indian Nation, resulting

12 from the Wapato Irrigation Project system improvements

13 for—

14 (A) demonstrating cost-effective state of the art

15 irrigation water management and conservation,

16 (B) the training of tribal members in irrigation

17 methods, operation, and management, and

18 (C) upgrading existing hydroelectric facilities

19 and construction of additional hydroelectric facilities

20 on the reservation to meet irrigation pumping power

21 needs.

22 (c) TOPPENISH CREEK CORRIDOR ENHANCEMENT

23 PROJECT APPROPRIATIONS.—There is hereby authorized

24 to be appropriated to the Secretary $1,500,000 for the

25 further investigation by the Yakama Indian Nation of
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1 measures to develop a Toppenish Creek corridor enhance2 ment project to demonstrate integration of management

3 of agricultural, fish, wildlife, and cultural resources to

4 meet tribal objectives and such amount as the Secretary

5 subsequently determines is necessary for implementation.

6 There is also authorized to be appropriated to the Sec7 retary such sums as may be necessary for the operation

8 and maintenance of the Toppenish Enhancement Project.

9 (d) REPORT.—Within 5 years of the implementation

10 of the Irrigation Demonstration Project and the

11 Toppenish Enhancement Project, the Secretary, in con12 sultation with the Yakama Indian Nation, shall report to

13 the Committee on Energy and Natural Resources of the

14 Senate, the Committee on Natural Resources of the House

15 of Representatives, and the Governor of the State of

16 Washington on the effectiveness of the conservation, train17 ing, mitigation, and other measures implemented.

18 (e) STATUS OF IMPROVEMENTS AND FACILITIES.—

19 The Wapato Irrigation Project system improvements and

20 any specific irrigation facility of the Irrigation Demonstra21 tion Project (excluding on-farm irrigation facilities) and

22 the Toppenish Enhancement Project shall become features

23 of the Wapato Irrigation Project.

24 (f) TREATMENT OF CERTAIN COSTS.—Costs related

25 to Wapato Irrigation Project improvements, the Irrigation
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1 Demonstration Project, and the Toppenish Enhancement

2 Project shall be a Federal responsibility and are

3 nonreimbursable and nonreturnable.

4 (g) REDESIGNATION OF YAKIMA INDIAN NATION TO

5 YAKAMA INDIAN NATION.—

6 (1) REDESIGNATION.—The Confederated Tribes

7 and Bands of the Yakima Indian Nation shall be

8 known and designated as the ‘‘Confederated Tribes

9 and Bands of the Yakama Indian Nation’’.

10 (2) REFERENCES.—Any reference in a law,

11 map, regulation, document, paper, or other record of

12 the United States to the Confederated Tribes and

13 Bands of the Yakima Indian Nation referred to in

14 subsection (a) shall be deemed to be a reference to

15 the ‘‘Confederated Tribes and Bands of the Yakama

16 Indian Nation’’.

17 SEC. 5. OPERATION OF YAKIMA BASIN PROJECTS.

18 (a) WATER SAVINGS FROM BASIN CONSERVATION

19 PROGRAM.—(1) The Basin Conservation Program is in20 tended to result in reductions in water diversions allowing

21 for changes in the present operation of the Yakima Project

22 to improve stream flow conditions in the Yakima River

23 basin. Except as provided by paragraph (5) of this sub24 section and section 9, commencing with the enactment of

25 this Act, and notwithstanding that anticipated water sav-
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1 ings are yet to be realized, the Secretary, upon the enact2 ment of this Act and acting through the Yakima Project

3 Superintendent, shall (A) continue to estimate the water

4 supply which is anticipated to be available to meet water

5 entitlements; and (B) provide instream flows in accord6 ance with the following criteria:

Water Supply Estimate for Period (million acre

feet):

Target Flow from Date

of Estimate thru October

Downstream of (cubic

feet per second):

April thru

September

May thru

September

June thru

September

July thru

September Sunnyside

Diversion

Dam

Prosser Diversion Dam

(1) 3.2 2.9 2.4 1.9 600 600

(2) 2.9 2.65 2.2 1.7 500 500

(3) 2.65 2.4 2.0 1.5 400 400

Less than line 3 water supply 300 300

7 (2) The initial target flows represent target flows at

8 the respective points. Reasonable fluctuations from these

9 target flows are anticipated in the operation of the Yakima

10 Project, except that for any period exceeding 24 hours—

11 (A) actual flows at the Sunnyside Diversion

12 Dam may not decrease to less than 65 percent of

13 the target flow at the Sunnyside Diversion Dam;

14 and

15 (B) actual flows at the Prosser Diversion Dam

16 may not decrease by more than 50 cubic feet per

17 second from the target flow.

18 (3) The instream flows shall be increased for interim

19 periods during any month of April through October to fa-
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1 cilitate when necessary the outward migration of anad2 romous fish. Increased instream flows for such interim pe3 riods shall be obtained through voluntary sale and leasing

4 of water or water rights or from conservation measures

5 taken under this Act.

6 (4)(A)(i) Within the three-year period beginning

7 when appropriations are first provided to carry out the

8 Basin Conservation Program, the instream flow goal in

9 the Yakima River is as follows: to secure water which is

10 to be used for instream flows to facilitate meeting rec11 ommendations of the System Operations Advisory Com12 mittee for flushing flows or other instream uses.

13 (ii) In addition to any other authority of the Sec14 retary to provide water for flushing flows, the water re15 quired to meet the goal specified in clause (i) shall be ac16 quired through the voluntary purchase or lease of land,

17 water, or water rights and from the development of addi18 tional storage capability at Lake Cle Elum provided for

19 in section 6(a).

20 (iii) In addition to water required to meet the

21 instream flow goal specified in clause (i), the System Op22 erations Advisory Committee may recommend additional

23 water to meet instream flow goals pursuant to judicial

24 actions.
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1 (B) After the period referred to in subparagraph (A),

2 such instream flow goal is modified as follows:

3 (i) The goal increases so that the instream tar4 get flows specified in the table in paragraph (1) in5 crease by 50 cubic feet per second for each 27,000

6 acre-feet of reduced annual water diversions

7 achieved through implementation of measures under

8 the Basin Conservation Program. Such increases do

9 not apply to actions taken pursuant to section 4.

10 Such increases shall not further diminish the

11 amount of water that otherwise would have been de12 livered by an entity to its water users in years of

13 water proration.

14 (ii) The goal changes directly with the availabil15 ity of water resulting from Federal expenditures

16 under this Act for purchase or lease of water under

17 this Act.

18 (C) The Yakima Project Superintendent shall main19 tain an account of funded and completed conservation

20 measures taken under the Basin Conservation Program.

21 (D) No later than March 31 of each calendar year,

22 the Yakima Project Superintendent shall meet with the

23 State of Washington, Yakama Indian Nation, and Yakima

24 River basin irrigators to mutually determine total diver25 sion reductions and respective adjustments to the target
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1 flows referred to in this subsection. The Yakima Project

2 Superintendent shall announce such adjustments with the

3 announcements of Total Water Supply Available. For the

4 purposes of this subparagraph, conserved water will be

5 considered available for adjusting target flows in the first

6 year following completion of a measure or following a re7 sult from the post implementation monitoring and evalua8 tion program, as the case may be.

9 (5) Operational procedures and processes in the Yak10 ima River basin which have or may be implemented

11 through judicial actions shall not be impacted by this Act.

12 (6)(A) Within three years after the date of enactment

13 of this Act, the Secretary shall conduct a study and submit

14 a report with recommendations to the appropriate commit15 tees of the Congress on whether the water supply available

16 for irrigation is adequate to sustain the agricultural econ17 omy of the Yakima River basin.

18 (B) The target flows provided for under this sub19 section shall be evaluated within three years after the date

20 of enactment of this Act by the Systems Operations Advi21 sory Committee for the purpose of making a report with

22 recommendations to the Secretary and the Congress evalu23 ating what is necessary to have biologically-based target

24 flows.
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1 (C) The recommendations and reports under sub2 paragraphs (A) and (B) shall provide a basis for the third

3 phase of the Yakima River Basin Water Enhancement

4 Project.

5 (b) WATER FROM LAKE CLE ELUM.—Water accru6 ing from the development of additional storage capacity

7 at Lake Cle Elum, made available pursuant to the modi8 fications authorized in section 6(a), shall not be part of

9 the Yakima River basin’s water supply as provided in sub10 section (a)(1). Water obtained from such development is

11 exclusively dedicated to instream flows for use by the Yak12 ima Project Superintendent as flushing flows or as other13 wise advised by the System Operations Advisory Commit14 tee. Water may be carried over from year-to-year in the

15 additional capacity to the extent that there is space avail16 able. Releases may be made from other Yakima Project

17 storage facilities to most effectively utilize this additional

18 water, except that water deliveries to holders of existing

19 water rights shall not be impaired.

20 (c) STATUS OF BASIN CONSERVATION PROGRAM FA21 CILITIES.—Measures of the Basin Conservation Program

22 which are implemented on facilities currently under the

23 administrative jurisdiction of the Secretary, except as pro24 vided in section 4, shall be considered features of the Yak25 ima River Basin Water Enhancement Project, and their
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1 operation and maintenance shall be integrated and coordi2 nated with other features of the existing Yakima Project.

3 The responsibility for operation and maintenance and the

4 related costs shall remain with the current operating en5 tity. As appropriate, the Secretary shall incorporate the

6 operation and maintenance of such facilities into existing

7 agreements. The Secretary shall assure that such facilities

8 are operated in a manner consistent with Federal and

9 State law and in accordance with water rights recognized

10 pursuant to State and Federal law.

11 (d) WATER ACQUIRED BY PURCHASE AND LEASE.—

12 Water acquired from voluntary sellers and lessors shall be

13 administered as a block of water separate from the Total

14 Water Supply Available, in accordance with applicable

15 Federal and State law.

16 (e) YAKIMA PROJECT PURPOSE.—(1) An additional

17 purpose of the Yakima Project shall be for fish, wildlife,

18 and recreation.

19 (2) The existing storage rights of the Yakima Project

20 shall include storage for the purposes of fish, wildlife, and

21 recreation.

22 (3) The purposes specified in paragraphs (1) and (2)

23 shall not impair the operation of the Yakima Project to

24 provide water for irrigation purposes nor impact existing

25 contracts.
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1 SEC. 6. LAKE CLE ELUM AUTHORIZATION OF APPROPRIA2 TIONS.

3 (a) MODIFICATIONS AND IMPROVEMENTS.—There is

4 hereby authorized to be appropriated to the Secretary—

5 (1) at September 1990 prices, plus or minus

6 such amounts as may be justified by reason of ordi7 nary fluctuation of applicable indexes, $2,934,000

8 to—

9 (A) modify the radial gates at Cle Elum

10 Dam to provide an additional 14,600 acre-feet

11 of storage capacity in Lake Cle Elum,

12 (B) provide for shoreline protection of

13 Lake Cle Elum, and

14 (C) construct juvenile fish passage facili15 ties at Cle Elum Dam, plus

16 (2) such additional amounts as may be nec17 essary which may be required for environmental

18 mitigation.

19 (b) OPERATION AND MAINTENANCE APPROPRIA20 TIONS.—There is hereby authorized to be appropriated to

21 the Secretary such sums as may be necessary for that por22 tion of the operation and maintenance of Cle Elum Dam

23 determined by the Secretary to be a Federal responsibility.
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1 SEC. 7. ENHANCEMENT OF WATER SUPPLIES FOR YAKIMA

2 BASIN TRIBUTARIES.

3 (a) GENERAL PROVISIONS.—The following shall be

4 applicable to the investigation and implementation of

5 measures to enhance water supplies for fish and wildlife

6 and irrigation purposes on tributaries of the Yakima River

7 basin:

8 (1) An enhancement program authorized by

9 this section undertaken in any tributary shall be

10 contingent upon the agreement of appropriate water

11 right owners to participate.

12 (2) The enhancement program authorized by

13 this section shall not be construed to affect (A) the

14 water rights of any water right owners in the tribu15 tary or other water delivering entities; (B) the capa16 bility of tributary water users to divert, convey, and

17 apply water; and (C) existing water and land uses

18 within the tributary area.

19 (3) The water supply for tributary enhancement

20 shall be administered in accordance with applicable

21 State and Federal laws.

22 (4) Any enhancement program authorized by

23 this section shall be predicated upon the availability

24 of a dependable water supply.

25 (b) STUDY.—(1) The Secretary, following consulta26 tion with the State of Washington, the tributary water
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1 right owners, and the Yakama Indian Nation, and agree2 ment of appropriate water right owners to participate,

3 shall conduct a study concerning the measures that can

4 be implemented to enhance water supplies for fish and

5 wildlife and irrigation purposes on Taneum Creek, includ6 ing (but not limited to)—

7 (A) water use efficiency improvements;

8 (B) the conveyance of water from the Yakima

9 Project through the facilities of any irrigation entity

10 willing to contract with the Secretary without ad11 verse impact to water users;

12 (C) the construction, operation, and mainte13 nance of ground water withdrawal facilities;

14 (D) contracting with any entity that is willing

15 to voluntarily limit or forego present water use

16 through lease or sale of water or water rights on a

17 temporary or permanent basis;

18 (E) purchase of water rights from willing

19 sellers; and

20 (F) other measures compatible with the pur21 poses of this Act, including restoration of stream

22 habitats.

23 (2) In conducting the Taneum Creek study, the Sec24 retary shall consider—
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1 (A) the hydrologic and environmental character2 istics;

3 (B) the engineering and economic factors relat4 ing to each measure; and

5 (C) the potential impacts upon the operations

6 of present water users in the tributary and measures

7 to alleviate such impacts.

8 (3) The Secretary shall make available to the public

9 for a 45-day comment period a draft report describing in

10 detail the findings, conclusions, and recommendations of

11 the study. The Secretary shall consider and include any

12 comment made in developing a final report. The Sec13 retary’s final report shall be submitted to the Committee

14 on Energy and Natural Resources of the Senate, the Com15 mittee on Natural Resources of the House of Representa16 tives, and the Governor of the State of Washington, and

17 made available to the public.

18 (c) IMPLEMENTATION OF NONSTORAGE MEAS19 URES.—After securing the necessary permits the Sec20 retary may, in cooperation with the Department of Ecol21 ogy of the State of Washington and in accordance with

22 the laws of the State of Washington, implement

23 nonstorage measures identified in the final report under

24 subsection (b) upon fulfillment of the following conditions:
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1 (1) The Secretary shall enter into an agreement

2 with the appropriate water right owners who are

3 willing to participate, the State of Washington, and

4 the Yakama Indian Nation, for the use and manage5 ment of the water supply to be provided by proposed

6 tributary measures pursuant to this section.

7 (2) The Secretary and the State of Washington

8 find that the implementation of the proposed tribu9 tary measures will not impair the water rights of

10 any person or entity in the affected tributary.

11 (d) OTHER YAKIMA RIVER BASIN TRIBUTARIES.—

12 Enhancement programs similar to the enhancement pro13 gram authorized by this section may be investigated and

14 implemented by the Secretary in other tributaries contin15 gent upon the agreement of the appropriate tributary

16 water right owners to participate. The provisions set forth

17 in this section shall be applicable to such programs.

18 (e) AUTHORIZATION OF APPROPRIATIONS.—(1)

19 There is hereby authorized to be appropriated to the Sec20 retary $500,000 for the study of the Taneum Creek

21 Project and such amount as the Secretary subsequently

22 determines is necessary for implementation of tributary

23 measures pursuant to this section.

24 (2) There is also authorized to be appropriated to the

25 Secretary such funds as are necessary for the investigation
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1 of enhancement programs similar to the enhancement pro2 gram authorized by this section in other Yakima River

3 basin tributaries contingent upon the agreement of the ap4 propriate water right owners to participate. Funds for the

5 implementation of any such similar enhancement program

6 may not be appropriated until after the Secretary submits

7 an investigation report to the appropriate congressional

8 committees.

9 SEC. 8. CHANDLER PUMPING PLANT AND POWERPLANT-OP10 ERATIONS AT PROSSER DIVERSION DAM.

11 (a) AUTHORIZATION OF APPROPRIATIONS FOR ELEC12 TRIFICATION.—In order to provide for electrification to

13 enhance instream flows by eliminating the need to divert

14 water to operate the hydraulic turbines which pump water

15 to the Kennewick Irrigation District, there is authorized

16 to be appropriated—

17 (1) $50,000 to conduct an assessment of oppor18 tunities for alternative pumping plant locations;

19 (2) $4,000,000 for construction; and

20 (3) such sums as may be necessary for the

21 prorata share of the operation and maintenance

22 allocated to fish and wildlife as determined by the

23 Secretary.

24 (b) POWER FOR PROJECT PUMPING.—(1) The Ad25 ministrator of the Bonneville Power Administration shall
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1 provide for project power needed to effect the electrifica2 tion as provided in subsection (a).

3 (2)(A) There is authorized to be appropriated for the

4 Bureau of Reclamation for each fiscal year in which the

5 Administrator provides power under this subsection an

6 amount equal to the cost to the Bonneville Power Adminis7 tration of providing power under this subsection during

8 such fiscal year. The rate to be utilized by the Adminis9 trator in determining the cost of power under this para10 graph in a fiscal year shall be the rate for priority firm

11 power charged by the Bonneville Power Administration in

12 that fiscal year under section 7(b) of the Pacific North13 west Electric Power Planning and Conservation Act (16

14 U.S.C. 839e(b)).

15 (B) The Bureau of Reclamation shall, using funds

16 appropriated pursuant to the authorization of appropria17 tions in subparagraph (A), reimburse the Bonneville

18 Power Administration for the costs of the project power

19 provided under this subsection. Such funds shall be avail20 able for such purpose without fiscal year limitation.

21 (c) SUBORDINATION.—Any diversions for hydropower

22 generation at the Chandler Powerplant shall be subordi23 nated to meet the flow targets determined under sub24 section (f).
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1 (d) WATER SUPPLY FOR KENNEWICK IRRIGATION

2 DISTRICT.—The Secretary shall ensure that the irrigation

3 water supply for the Kennewick Irrigation District shall

4 not be affected by conservation, electrification, or subordi5 nation pursuant to this Act and any reduction in its irriga6 tion water supply resulting from conservation measures

7 adopted or implemented by other entities pursuant to this

8 Act shall be replaced by water developed through subordi9 nation, electrification, or a combination of the two.

10 (e) TREATMENT OF CERTAIN FUNDS.—Funds appro11 priated and project power provided pursuant to this sec12 tion shall be nonreimbursable since such funds are used

13 for fish and wildlife purposes and such funds are not sub14 ject to cost share under section 3(d).

15 (f) TARGET FLOWS.—Target flows measured at ap16 propriate biological and hydrological location or locations

17 shall be determined by the Yakima Project Superintendent

18 in consultation with the System Operations Advisory

19 Committee.

20 SEC. 9. AUGMENTATION OF KACHESS RESERVOIR STORED

21 WATER.

22 (a) AUTHORIZATION OF APPROPRIATIONS.—In order

23 to augment Kachess Reservoir stored water supplies from

24 flows of Cabin Creek and Silver Creek which are excess
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•HR 5148 EH

1 to system demands, there is authorized to be appro2 priated—

3 (1) such sums as may be necessary to carry out

4 a feasibility study, including the benefits, costs, and

5 environmental aspects, of the facility described in

6 paragraph (2);

7 (2) for the construction of facilities to convey

8 such flows to Kachess Reservoir, $20,000,000; and

9 (3) such sums as may be necessary for the pro

10 rata share of the operation and maintenance allo11 cated to fish and wildlife determined by the Sec12 retary.

13 (b) LIMITATION.—Construction of the facilities de14 scribed in subsection (a)(1) is contingent on the comple15 tion of the feasibility study referred to in subsection

16 (a)(2).

17 (c) USE OF ADDITIONAL WATER.—The stored water

18 supply resulting from the construction of facilities under

19 this section shall be used by the Secretary to—

20 (1) enhance the water supply available to the

21 Kittitas Reclamation District and the Roza Irriga22 tion District in years of proration; and

23 (2) facilitate reservoir operations in the Easton

24 Dam to Keechelus Dam reach of the Yakima River

25 for the propagation of anadromous fish.
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1 (d) TREATMENT OF COSTS.—The construction and

2 operation and maintenance costs of the facilities under

3 this section shall be allocated to irrigation and fishery en4 hancement, as follows:

5 (1) The portion of such costs allocated to irri6 gation is reimbursable, with the construction costs to

7 be paid prior to initiation of construction by the

8 Kittitas Reclamation District and the Roza Irriga9 tion District.

10 (2) The portion of such costs allocated to fish11 ery enhancement is nonreimbursable.

12 (e) KACHESS DAM MODIFICATIONS.—There is au13 thorized to be appropriated $2,000,000 for the modifica14 tion of the discharge facilities of Kachess Dam to improve

15 reservoir operations for anadromous fish enhancement.

16 Amounts appropriated under this subsection are

17 nonreimbursable.

18 SEC. 10. INTERIM COMPREHENSIVE BASIN OPERATING

19 PLAN.

20 (a) DEVELOPMENT.—The Secretary shall, in con21 sultation with the State of Washington, Yakama Indian

22 Nation, Yakima River Basin irrigation districts, Bonne23 ville Power Administration, and other entities as deter24 mined by the Secretary, develop an interim comprehensive

25 operating plan for providing a general framework within
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1 which the Yakima Project Superintendent operates the

2 Yakima Project, including measures implemented under

3 the Yakima River Basin Water Enhancement Project, in4 cluding (but not limited to)—

5 (1) operating capability and constraints of the

6 system;

7 (2) information on water supply calculations an

8 water needs;

9 (3) system operations and stream flow objec10 tives; and

11 (4) the System Operations Advisory Committee

12 activities.

13 (b) PROCESS REQUIREMENTS.—A draft of the in14 terim comprehensive basin operating plan shall be com15 pleted within 18 months after the completion of the Basin

16 Conservation Plan under section 3(f) and, upon comple17 tion, published for a 90-day public review period. The Sec18 retary shall complete and publish the final interim com19 prehensive operating plan within 90 days after the close

20 of the public review period. The Secretary shall update the

21 plan as needed to respond to decisions from water adju22 dications relating to the Yakima River basin.

23 (c) AUTHORIZATION OF APPROPRIATIONS.—There is

24 authorized to be appropriated $100,000 to carry out this

25 section.
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1 SEC. 11. ENVIRONMENTAL COMPLIANCE.

2 There are hereby authorized to be appropriated to the

3 Secretary $2,000,000 for environmental compliance activi4 ties including the conduct, in cooperation with the State

5 of Washington, of an inventory of wildlife and wetland re6 sources in the Yakima River basin and an investigation

7 of measures, including ‘‘wetland banking’’, which could be

8 implemented to address potential impacts which could re9 sult from the activities taken under this Act.

10 SEC. 12. SAVINGS AND CONTINGENCIES.

11 (a) IN GENERAL.—Nothing in this Act shall be con12 strued to—

13 (1) affect or modify any treaty or other right of

14 the Yakama Indian Nation;

15 (2) authorize the appropriation or use of water

16 by any Federal, State, or local agency, the Yakama

17 Indian Nation, or any other entity or individual;

18 (3) impair the rights or jurisdictions of the

19 United States, the States, the Yakama Indian Na20 tion, or other entities over waters of any river or

21 stream or over any ground water resource;

22 (4) alter, amend, repeal, interpret, modify, or

23 be in conflict with any interstate compact made by

24 the States;

25 (5) alter, establish, or impair the respective

26 rights of States, the United States, the Yakama In-
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1 dian Nation, or any other entity or individual with

2 respect to any water or water-related right;

3 (6) alter, diminish, or abridge the rights and

4 obligations of any Federal, State, or local agency,

5 the Yakama Indian Nation, or other entity, public or

6 private;

7 (7) affect or modify the rights of the Yakama

8 Indian Nation or its successors in interest to, and

9 management and regulation of, those water re10 sources arising or used, within the external bound11 aries of the Yakama Indian Reservation;

12 (8) affect or modify the settlement agreement

13 between the United States and the State of Wash14 ington filed in Yakima County Superior Court with

15 regard to Federal reserved water rights other than

16 those rights reserved by the United States for the

17 benefit of the Yakama Indian Nation and its mem18 bers;

19 (9) affect or modify the rights of any Federal,

20 State, or local agency, the Yakama Indian Nation,

21 or any other entity, public or private with respect to

22 any unresolved and unsettled claims in any water

23 right adjudications, or court decisions, including

24 State against Acquavella, or constitute evidence in
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•HR 5148 EH

1 any such proceeding in which any water or water re2 lated right is adjudicated; or

3 (10) preclude other planning studies and

4 projects to accomplish the purposes of this Act by

5 other means: funded publicly, privately, or by a com6 bination of public and private funding.

7 (b) CONTINGENCY BASED ON APPROPRIATIONS.—

8 The performance of any activity under this Act which re9 quires accomplishment within a specified period that may

10 require appropriation of money by Congress or the allot11 ment of funds shall be contingent upon such appropriation

12 or allotment being made.

Passed the House of Representatives October 3,

1994.

Attest:

Clerk.

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103D CONGRESS

2D SESSION H. R. 5148

AN ACT

To authorize certain elements of the Yakima River

purposes.Basin Water Enhancement Project, and for other