II

106TH CONGRESS

1ST SESSION S. 294

To direct the Secretary of the Army to develop and implement a

comprehensive program for fish screens and passage devices.

IN THE SENATE OF THE UNITED STATES

JANUARY 22, 1999

Mr. WYDEN (for himself and Mr. SMITH of Oregon) introduced the following

bill; which was read twice and referred to the Committee on Environment

and Public Works

A BILL

To direct the Secretary of the Army to develop and implement a comprehensive program for fish screens and passage devices.

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

3 SECTION 1. WATER DIVERSION PROTECTION AND FISH4 ERIES ENHANCEMENT PROGRAM.

5 (a) IN GENERAL.—In cooperation with the Secretary

6 of the Interior and the Secretary of Commerce, the Sec7 retary shall develop and implement a comprehensive pro8 gram for fish screens, fish passage devices, and other

9 measures agreed to by local interests and relevant Federal
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1 agencies for water diversions by local governmental enti2 ties in the States of Oregon, Washington, Montana, and

3 Idaho that provide water supplies.

4 (b) GOALS.—The goals of the program under sub5 section (a) shall be—

6 (1) to decrease the incidence of juvenile and

7 adult fish entering water supply systems; and

8 (2) to decrease fish mortality associated with

9 the withdrawal of water for irrigation and other pur10 poses without impairing the continued withdrawal of

11 water for that purpose.

12 (c) PARTICIPATION BY NON-FEDERAL ENTITIES.—

13 Non-Federal participation in the program under sub14 section (a) shall be voluntary. The Secretary shall take

15 no action that would result in any non-Federal entity

16 being held financially responsible for any action unless the

17 entity applies to participate in the program.

18 (d) ACTIVITIES.—

19 (1) IN GENERAL.—The program under sub20 section (a) shall consist of—

21 (A) inventory of screened and unscreened

22 diversions and evaluation of the effectiveness of

23 fish screens, fish passage devices, and other

24 measures in existence on the date of enactment

25 of this Act;
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1 (B) identification and prioritization of crit2 ical areas for improvement; and

3 (C) development and execution of an im4 plementation and construction program.

5 (2) BASIS OF EVALUATION AND

6 PRIORITIZATION.—Evaluation and prioritization

7 shall be conducted on the basis of—

8 (A) the objectives of the Endangered Spe9 cies Act of 1973 (16 U.S.C. 1531 et seq.) and

10 related environmental concerns;

11 (B) the cost effectiveness;

12 (C) the size of diversion;

13 (D) the availability of other funding

14 sources; and

15 (E) the opportunity for biological benefit

16 to be achieved with improved conditions.

17 (3) PROCEDURE.—In the development of the

18 program under subsection (a), the Secretary shall—

19 (A) consult with other Federal, State, and

20 local agencies; and

21 (B) make maximum use of data and stud22 ies in existence on the date of enactment of this

23 Act.

24 (e) REQUIREMENTS.—A recommended fish screen,

25 fish passage device, or other measure shall—
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1 (1) meet the requirements of the United States

2 Fish and Wildlife Service or the National Marine

3 Fisheries Service, as applicable, and any State re4 quirements; and

5 (2) be agreed to by all interested Federal and

6 non-Federal entities.

7 (f) COST SHARING.—

8 (1) STUDIES.—The cost of studies conducted in

9 connection with the program under subsection (a)

10 shall be shared in accordance with section 105 of the

11 Water Resources Development Act of 1986 (33

12 U.S.C. 2215).

13 (2) IMPLEMENTATION.—

14 (A) IN GENERAL.—The non-Federal inter15 ests shall pay 35 percent of the implementation

16 cost for any measures recommended under the

17 program under subsection (a).

18 (B) IN-KIND CONTRIBUTIONS.—The non19 Federal interests shall provide all land, ease20 ments, rights-of-way, dredged material disposal

21 areas, and relocations necessary for projects

22 carried out under the program under subsection

23 (a). The value of such land, easements, rights

24 of way, dredged material disposal areas, and re-
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1 locations shall be credited toward the payment

2 required under subparagraph (A).

3 (3) OMRR&R.—The non-Federal interests shall

4 be responsible for all costs associated with operating,

5 maintaining, repairing, rehabilitating, and replacing

6 all projects carried out under the program under

7 subsection (a).

8 (g) AGREEMENTS.—

9 (1) PAYMENT OF COSTS.—Construction of a

10 project under this section shall be initiated only

11 after the non-Federal interest has entered into a

12 binding agreement with the Secretary to pay the

13 non-Federal share of the costs of construction re14 quired by this section and to pay 100 percent of any

15 operation, maintenance, repair, rehabilitation, or re16 placement cost with respect to the project in accord17 ance with guidelines established by the Secretary.

18 (2) ACCESS.—

19 (A) IN GENERAL.—The owner of land on

20 which a project under this section is con21 structed shall grant appropriate Federal per22 sonnel reasonable access to the project for the

23 installation, maintenance, repair, rehabilitation,

24 or replacement of fish screens and passage de25 vices.
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1 (B) EFFECT OF GRANT.—A grant of ac2 cess to land under subparagraph (A) shall not

3 provide a basis for Federal use or regulation of

4 the surrounding private land.

5 (h) REPORTING REQUIREMENTS.—

6 (1) IN GENERAL.—The non-Federal interests

7 with respect to a project under this section shall pro8 vide reports on such matters and in such form as

9 the Secretary may require.

10 (2) ITEMS TO BE ADDRESSED.—Items to be ad11 dressed shall include costs and actions taken to ful12 fill annual requirements for operating, maintaining,

13 replacing, repairing, and rehabilitating projects.

14 (i) AUTHORIZATION OF APPROPRIATIONS.—There is

15 authorized to be appropriated to carry out this section

16 $25,000,000 for each fiscal year.

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