```

[Senate Report 110-321]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 673
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-321

======================================================================
 
      PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM AND PATHFINDER 
                     MODIFICATION AUTHORIZATION ACT

                                _______
                                

                 April 10, 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. 1462]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 1462) to authorize the Secretary of the 
Interior to participate in the implementation of the Platte 
River Recovery Implementation Program for Endangered Species in 
the Central and Lower Platte River Basin and to modify the 
Pathfinder Dam and Reservoir, having considered the same, 
reports favorably thereon with amendments and recommends that 
the Act, as amended, do pass.
    The amendments are as follows:
    1.On page 3, strike line 4 and insert the following: 
Reservoir, in accordance with the requirements described in 
title II.
    2. On page 5, line 9, strike ``title'' and insert ``Act''.
    3. On page 5, line 21, strike ``participating''.
    4. On page 7, line 15, strike ``title'' and insert ``Act''.
    5. On page 9, line 8, strike ``The approximately'' and 
insert ``Provided that all of the conditions described in 
section 203 are first met, the approximately''.
    6. At the end, add the following:

``SEC. 203. CONDITIONS PRECEDENT.

  ``The actions and water uses authorized in sections 201(a)(1) 
and 202 shall not occur until each of the following actions 
have been completed:
          ``(1) Final approval from the Wyoming legislature for 
        the export of Project water to the State of Nebraska 
        under the laws (including regulations) of the State of 
        Wyoming.
          ``(2) Final approval in a change of water use 
        proceeding under the laws (including regulations) of 
        the State of Wyoming for all new uses planned for 
        Project water. Final approval, as used in this 
        paragraph, includes exhaustion of any available review 
        under State law of any administrative action 
        authorizing the change of the Pathfinder Reservoir 
        water right''.

                         PURPOSE OF THE MEASURE

    The purpose of H.R. 1462 is to authorize the Secretary of 
the Interior to participate in the implementation of the Platte 
River Recovery Implementation Program for Endangered Species in 
the Central and Lower Platte River Basin and to modify the 
Pathfinder Dam and Reservoir.

                          BACKGROUND AND NEED

    The Central Platte River in Nebraska is critical habitat 
for the endangered whooping crane, interior least tern, and 
pallid sturgeon, as well as the threatened piping plover. In 
the early 1990s, it became apparent that the critical habitat 
for these endangered and threatened species was affected by 
water use not only in Nebraska, but also in the upstream states 
of Wyoming and Colorado. Rather than let the U.S. Fish and 
Wildlife Service unilaterally establish a water supply goal for 
the critical habitat and limit existing depletions of water, 
Wyoming, Nebraska, and Colorado became interested in developing 
a program to ensure compliance with the Endangered Species Act 
while maintaining water uses in those states.
    On July 1, 1997, the Governors of Nebraska, Wyoming, and 
Colorado, and the Secretary of the Interior signed the 
``Cooperative Agreement for Platte River Research and Other 
Efforts Relating to Endangered Species Habitat along the 
Central Platte River, Nebraska.'' Thereafter, a Governance 
Committee made up of representatives from the three states, the 
federal government, environmental organizations, and water 
users formulated the details of a proposed Platte River 
Recovery Implementation Program (Program). In 2006, the U.S. 
Bureau of Reclamation released a Final Programmatic 
Environmental Impact Statement and the U.S. Fish and Wildlife 
Service issued a Final Biological Opinion. The Secretary of the 
Interior then signed the Record of Decision supporting 
implementation of the Program. Following, in late 2006, each of 
the three Governors and the Secretary signed a Cooperative 
Agreement wherein they agreed to implement the Program. The 
Program, which is contingent upon the authorization associated 
with H.R. 1462, and funding by Congress and by the states, 
officially commenced on January 1, 2007.

                          LEGISLATIVE HISTORY

    H.R. 1462 was introduced by Rep. Mark Udall on March 9, 
2007, and referred to the Committee on Natural Resources. 
Representatives Barbara Cubin, Diana DeGette, Jeff Fortenberry, 
Ed Perlmutter, John Salazar, Adrian Smith, and Lee Terry are 
co-sponsors. Under suspension of the rules, H.R. 1462 passed 
the House of Representatives on October 22, 2007 and was 
referred to the Committee on Energy and Natural Resources.
    A companion measure, S. 752, was introduced by Senator Ben 
Nelson for himself and Senators Allard, Hagel, and Salazar. The 
Subcommittee on Water & Power held a hearing on S. 752 on April 
25, 2007. (S. Hrg. 110-86.) At its business meeting on January 
30, 2008, the Committee on Energy and Natural Resources ordered 
H.R. 1462 favorably reported as amended.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on January 30, 2008, by voice vote of a quorum 
present, recommends that the Senate pass H.R. 1462, if amended 
as described herein.

                          COMMITTEE AMENDMENT

    During the consideration of H.R. 1462, the Committee 
adopted several amendments to improve the bill. The most 
significant amendment makes clear that the authorization to 
modify Pathfinder Dam and Reservoir in Wyoming is dependent on 
conditions precedent that are set forth in a new section 203 of 
the bill. Another amendment clarifies that the Secretary is 
authorized to carry out a broad range of actions to carry out 
the Act. The final amendment clarifies that a disclaimer 
regarding the existence of Federal water rights applies to the 
entire Act.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title and table of contents of 
the Act.
    Section 2 provides the purposes of the Act.
    Section 101 defines the terms used in Title I of the bill.
    Section 102(a) authorizes the Secretary to participate in 
the Platte River Recovery Implementation Program and carry out 
projects and activities designated for implementation.
    Section 102(b) authorizes the Secretary to enter into 
agreements and contracts, acquire property interests from 
willing sellers, transfer any acquired interests, and accept or 
provide grants in carrying out the Act.
    Section 103(a) provides that the States shall contribute 
not less than 50 percent of the overall cost of the Program.
    Section 103(b) defines the contributions that will 
constitute the States' share required under the Program.
    Section 103(c) authorizes the use of in-kind contributions 
under specific conditions.
    Section 104 authorizes the Program to be amended under 
specific conditions.
    Section 105(a) limits the application of the Reclamation 
Reform Act as a result of Program implementation.
    Section 105(b) provides that the Act does not create 
Federal water rights, nor requires the grant of water rights to 
Federal entities.
    Section 106(a) authorizes $157,140,000 in appropriations 
(subject to adjustment) to carry out Title I.
    Section 106(b) declares that expenditure of the authorized 
appropriations shall be on a nonreimbursable basis.
    Section 106(c) specifies the formula for adjusting 
authorized appropriations on an annual basis.
    Section 106(d) states that any unexpended funds remaining 
at the end of each fiscal year, shall carry over for Program 
implementation activities.
    Section 107 terminates the authority for the Program on 
September 30, 2020.
    Section 201(a) authorizes the Secretary of the Interior to 
modify Pathfinder Dam and Reservoir and enter into agreements 
with the State of Wyoming as described.
    Section 201(c) specifies that no Federal appropriations are 
needed to modify Pathfinder Dam.
    Section 202 provides for the authorized uses of recaptured 
water from the modified Pathfinder Reservoir.
    Section 203 describes the conditions precedent to modifying 
Pathfinder Dam and Reservoir and using the recaptured water.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

H.R. 1462--Platte River Recovery Implementation Program and Pathfinder 
        Modification Authorization Act

    Summary: H.R. 1462 would authorize the Secretary of the 
Interior to implement a program to aid in the recovery of 
certain species in the Platte River basin that are listed as 
either threatened or endangered under the Endangered Species 
Act (ESA). The act also would authorize the Secretary to modify 
the Pathfinder Dam and Reservoir in Wyoming.
    CBO estimates that implementing H.R. 1462 would cost $66 
million over the 2009-2013 period, assuming appropriation of 
the necessary amounts. Enacting the legislation would not 
affect direct spending or revenues.
    H.R. 1462 contains no intergovemental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 1462 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

------------------------------------------------------------------------
                                      By fiscal year, in millions of
                                                 dollars--
                                 ---------------------------------------
                                   2009    2010    2011    2012    2013
------------------------------------------------------------------------
              CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...      12      15      16      16      16
Estimated Outlays...............       7      12      15      16      16
------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted before the end of 2008 and that the 
necessary amounts will be appropriated near the start of each 
subsequent fiscal year. Estimates of outlays are based on 
historical spending patterns for similar activities.
    In 1997, the Department of the Interior (DOI) signed a 
cooperative agreement with Colorado, Wyoming, and Nebraska to 
develop a program for wildlife protection along the Platte 
River. In late 2006, the Secretary and the governor of each 
state signed the Platte River Recovery Implementation Program. 
The program aims to restore and conserve the habitat of four 
threatened and endangered species in the Platte River basin. 
The program will be carried out in incremental stages.
    Title I would authorize the Secretary to participate in the 
first increment of the program in cooperation with Nebraska, 
Wyoming, and Colorado. Based on information provided by the 
Bureau of Reclamation, CBO estimates that implementing the 
recovery program in title I would cost $66 million over the 
2009-2013 period and an additional $108 million thereafter. DOI 
would use the appropriations to acquire land and water 
interests and undertake habitat restoration and other 
activities deemed necessary by the Secretary.
    Title II of the act would authorize the Secretary to modify 
the Pathfinder Dam and Reservoir in Wyoming. The Secretary 
would be authorized to enter into agreements with the state of 
Wyoming to implement those modifications. The state would be 
responsible for all costs of the modifications. Hence, CBO 
estimates that the federal government would incur no 
significant costs to implement title II.
    Intergovernmental and private-sector impact: H.R. 1462 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. Any costs to states to match federal 
assistance authorized by the act would be incurred voluntarily.
    Previous CBO Estimate: On October 19, 2007, CBO transmitted 
a cost estimate for H.R. 1462 as ordered reported by the House 
Committee on Natural Resources on October 10, 2007. The total 
costs of the two versions of the legislation are identical.
    Estimate prepared by: Federal Costs: Tyler Kruzich; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; 
Impact on the Private-Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      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. 1462. 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. 1462, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    H.R. 1462, 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. 752 follows:

 Statement of Robert Johnson, Commissioner, U.S. Bureau of Reclamation

    Mr. Chairman and members of the subcommittee, I am Robert 
Johnson, Commissioner of the Bureau of Reclamation. I 
appreciate the opportunity to appear before you today to 
discuss S. 752, the Platte River Recovery Implementation 
Program and the Pathfinder Modification Authorization Act. The 
Department supports passage of S. 752.
    The Platte River originates in the mountains of Wyoming and 
Colorado and, as it flows through Nebraska, provides important 
habitat for the whooping crane, piping plover, interior least 
tern, and pallid sturgeon (target species) that are listed as 
threatened or endangered under the Endangered Species Act 
(ESA). In 1997, the States of Colorado, Nebraska, and Wyoming 
and the Department of the Interior signed a Cooperative 
Agreement to develop a basin-wide program that would provide 
measures to assist in the recovery of these four target species 
in the Platte River in Nebraska. In late 2006, the Platte River 
Recovery Implementation Program (Program) Agreement was signed 
by the Governors of the three States and the Secretary of the 
Interior, allowing for Program implementation to begin January 
1, 2007. The Program assists in the conservation and recovery 
of the target species in the Platte River basin and implements 
aspects of the recovery plans for these species, thereby 
providing compliance under the Endangered Species Act (ESA) for 
existing water related activities and certain new water-related 
activities in the Platte River Basin in Colorado, Wyoming, and 
Nebraska.
    Title I of S. 752 provides authorization for the Secretary 
of the Interior, through the Bureau of Reclamation, to fully 
implement the Program. It also provides Reclamation with 
authority to appropriate non-reimbursable funds for the 
Program. Reclamation, in cooperation with the Governance 
Committee, will implement the Program in incremental stages 
with the first increment being a period of 13 years. Pursuant 
to the Program Agreement, the Federal cost share for the first 
increment is $157 million (2005 dollars), plus indexing. The 
State cost-share is the same amount, to be provided from the 
three State Parties to the Program Agreement.
    Pre-implementation activities, such as forming the new 
Governance Committee, initiating the selection of the Executive 
Director, and various administrative functions have already 
begun. Federal activities up to this point have been authorized 
under existing law encouraging the Department of the Interior 
to work with States to promote habitat protection and the 
protection of species. Under the ESA, the Program can initiate 
monitoring and research activities; however, actual water and 
land acquisitions cannot be initiated using Federal funds prior 
to enactment of this legislation. Upon enactment of this 
authorizing legislation, Program land and water acquisitions 
will begin. It is critical that acquisitions begin early in the 
Program to allow sufficient time to evaluate the biological 
response and effectiveness of the Program's recovery measures.
    Title II authorizes the Secretary, through the Bureau of 
Reclamation, to modify Pathfinder Dam and Reservoir and enter 
into agreements with the State of Wyoming to implement this 
modification. No Federal funds are required for this activity.
    In accordance with our commitment to cooperative 
conservation, the Department of the Interior seeks to encourage 
the efforts of States and local communities to play active 
roles in managing the resources they depend on for their 
livelihoods. The Platte River Recovery Implementation Program 
that would be authorized under this Act is an example of a 
partnership combining Federal and Non-Federal funding in an 
ongoing effort to recover endangered species while also meeting 
the water needs of local communities, irrigators, power 
generation, and the environment. Enactment of this legislation 
provides an opportunity not only to meet ESA requirements using 
a basin-wide, cooperative, and scientific approach, but to do 
so in a manner that protects existing water uses and allows for 
future water uses in the Platte River Basin. For these reasons, 
the Administration supports S. 752.
    Mr. Chairman, this completes my statement. I am happy to 
answer any questions the Subcommittee may have.

                        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. 1462, as 
ordered reported.

                                  

```