II

105TH CONGRESS

2D SESSION S. 1904

To amend the Elwha River Ecosystem and Fisheries Restoration Act to

provide further for the acquisition and removal of the Elwha dam and

acquisition of Glines Canyon dam and the restoration of the Elwha

River ecosystem and native anadromous fisheries, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 1, 1998

Mr. GORTON introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To amend the Elwha River Ecosystem and Fisheries Restoration Act to provide further for the acquisition and removal of the Elwha dam and acquisition of Glines Canyon dam and the restoration of the Elwha River ecosystem and native anadromous fisheries, 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. ACQUISITION OF PROJECTS AND REMOVAL OF

2 DAMS.

3 (a) IN GENERAL.—The Elwha River Ecosystem and

4 Fisheries Restoration Act (106 Stat. 3173) is amended

5 by striking section 3 and inserting the following:

6 ‘‘SEC. 3. ACQUISITION OF PROJECTS.

7 ‘‘(a) IN GENERAL.—As soon as practicable after

8 sums are appropriated for the purpose, the Secretary shall

9 acquire the Elwha Project and Glines Project for a pur10 chase price of $29,500,000.

11 ‘‘(b) RELEASE FROM LIABILITY.—

12 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

13 the acquisition of the Projects shall be conditioned

14 on a release from liability providing that all obliga15 tions and liabilities of the owner and the local indus16 trial consumer to the United States arising from the

17 Projects, based on ownership or on a license, permit,

18 contract, or other authority (including Project re19 moval and any ecosystem, fish and wildlife mitiga20 tion, and restoration obligations), shall, from the

21 moment of title transfer, be deemed to have been

22 satisfied.

23 ‘‘(2) LIABILITY TO INDIAN TRIBES.—The

24 United States may not assume or satisfy the liabil25 ity, if any, of the owner or local industrial consumer

26 to any federally recognized Indian tribe, nor shall
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1 any such liability be deemed satisfied without the

2 consent of the Indian tribe.

3 ‘‘(c) ELWHA PROJECT.—

4 ‘‘(1) REMOVAL OF DAM.—

5 ‘‘(A) IN GENERAL.—After acquiring the

6 Elwha Project, the Secretary shall remove the

7 Elwha dam.

8 ‘‘(B) PROTECTION OF WATER SUPPLY.—

9 ‘‘(i) IN GENERAL.—Before commenc10 ing removal of the Elwha dam or taking

11 any steps to breach, bypass, or otherwise

12 alter the water flow from the Elwha dam,

13 the Secretary shall take all such actions as

14 are necessary to ensure the continued

15 availability, after removal of the dam, of

16 the quantity and quality of water that is

17 available, as of the date of enactment of

18 this paragraph, to the city of Port Angeles,

19 Washington, the Dry Creek Water Associa20 tion, current (as of the date of enactment

21 of this paragraph) and future industrial

22 water users, and other current users of

23 water from the Elwha River.
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1 ‘‘(ii) ACTIONS INCLUDED.—The ac2 tions that the Secretary shall take under

3 clause (i) include—

4 ‘‘(I) the design, construction, op5 eration, and maintenance of new or

6 improved water treatment or storage

7 facilities; and

8 ‘‘(II) the mitigation of any injury

9 to fisheries and remediation of any

10 degradation in water quality that may

11 result from the removal of or any

12 other change in the water flow from

13 the Elwha dam.

14 ‘‘(iii) PAYMENT OF COSTS.—The cost

15 of each action taken under clause (i) shall

16 be borne by the Secretary.

17 ‘‘(2) EVALUATION OF EFFECT OF REMOVAL.—

18 For a period of 12 years during the removal phase

19 of the Elwha dam, the Secretary shall make a thor20 ough evaluation of the impact of removal of the dam

21 on fish runs.

22 ‘‘(3) COMPENSATION FOR LOST REVENUE.—

23 After the acquisition of the Projects, the Secretary

24 shall pay the Clallam County Board of Commis25 sioners $150,000 per year for a period of 12 years
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1 for the purposes of recovering lost revenue under the

2 condition that the county dedicate at least 50 per3 cent of each payment to studying the river system

4 before, during, and after dam removal.

5 ‘‘(d) GLINES PROJECT.—

6 ‘‘(1) IN GENERAL.—As soon as practicable

7 after sums are appropriated for the purpose, the

8 Secretary shall acquire the Glines Project.

9 ‘‘(2) DELAY IN REMOVAL OF DAM.—

10 ‘‘(A) IN GENERAL.—The Secretary shall

11 continue operation of, and shall not commence

12 removal of, the Glines Canyon dam for a period

13 of 12 years after the Elwha dam has been re14 moved.

15 ‘‘(B) REMOVAL.—After the 12-year period

16 described in subparagraph (A), the Secretary

17 may, subject to the availability of appropria18 tions, remove the Glines Canyon Project, if the

19 Secretary determines that the benefit to fish20 eries and restoration of the natural state of the

21 river exceeds the value of power and the desir22 ability of the lake by a margin that is sufficient

23 to warrant the expenditure of the removal cost.
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1 ‘‘(C) ENGINEERING AND DESIGN STUDY.—

2 As soon as practicable after the date of enact3 ment of this paragraph, the Secretary shall—

4 ‘‘(i) complete an engineering and de5 sign study to determine the most cost-ef6 fective manner in which transmission lines

7 and operational controls can be reconfig8 ured to permit operation of the Glines

9 Canyon dam during the 12-year period de10 scribed in subsection (a)(2); and

11 ‘‘(ii) evaluate the impact that manag12 ing the Glines Canyon Project for fisheries

13 restoration will have on future hydropower

14 operations.

15 ‘‘(3) FISHERIES RESTORATION ENHANCEMENT

16 EFFORTS.—

17 ‘‘(A) IN GENERAL.—To the extent prac18 ticable, the Secretary shall develop and imple19 ment a comprehensive fish enhancement plan

20 with the Elwha Citizens Commission, the Lower

21 Elwha Klallam tribe, the National Marine Fish22 eries Service, the Washington Department of

23 Fish and Wildlife, and other persons and enti24 ties directly affected by management decisions

25 on the Elwha River.
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1 ‘‘(B) LIMITATION.—The comprehensive

2 fish enhancement plan shall not compromise or

3 preempt—

4 ‘‘(i) commitments for power genera5 tion on the river in effect on the date of

6 enactment of this paragraph; or

7 ‘‘(ii) the authority of the Secretary to

8 remove the Glines Canyon Project before

9 the 12-year period described in subsection

10 (a)(2) has expired.’’.

11 (b) CONFORMING AMENDMENTS.—The Elwha River

12 Ecosystem and Fisheries Restoration Act (106 Stat.

13 3173) is amended—

14 (1) in section 4—

15 (A) in subsection (a)—

16 (i) in the matter preceding paragraph

17 (1), by striking ‘‘Effective’’ and all that

18 follows through ‘‘implement’’ and inserting

19 ‘‘Effective 60 days after date of convey20 ance of the Projects, the Secretary shall,

21 subject to the availability of appropriated

22 funds, take such actions as are necessary

23 to implement’’; and

24 (ii) in paragraph (1), by striking ‘‘re25 ferred to in section 3(c)(2) for the removal
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1 of the dams and full;’’ and inserting ‘‘for

2 the removal of the Elwha dam and;’’ and

3 (B) in the first sentence of subsection (b),

4 by striking ‘‘referred to in section 3(c)(2)’’;

5 (2) in section 5(a), by striking ‘‘as provided in

6 section 3(e)’’;

7 (3) in section 6—

8 (A) in the first sentence of subsection (a),

9 by striking ‘‘makes the determination to remove

10 the dams and’’; and

11 (B) in the first sentence of subsection

12 (b)(1)—

13 (i) by striking ‘‘makes the determina14 tion to remove the dams and’’; and

15 (ii) by inserting ‘‘of the Elwha

16 Project’’ after ‘‘removal’’; and

17 (4) in section 7(a)—

18 (A) by striking ‘‘makes the determination

19 to remove the dams and’’; and

20 (B) by inserting ‘‘of the Elwha Project’’

21 after ‘‘removal’’.

22 SEC. 2. COLUMBIA-SNAKE RIVER HYDROELECTRIC SYSTEM

23 PROTECTION.

24 (a) IN GENERAL.—Notwithstanding the Endangered

25 Species Act (42 U.S.C. 4321 et seq.) or any other Federal
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1 or State law (including a regulation), or Federal Energy

2 Regulatory Commission license condition, unless specifi3 cally authorized by an Act of Congress, a Federal or State

4 agency shall not require, approve, authorize, fund, or un5 dertake any action that would—

6 (1) impair the ability of flood control facilities

7 located in the Columbia-Snake River basin to ade8 quately protect the safety of humans and property

9 from damage due to flooding;

10 (2) reduce the capability of the Federal Colum11 bia River Power System to generate electric energy

12 or capacity below the operations analyzed in the Pre13 ferred Alternative of the Columbia River System Op14 eration Review Final Environmental Impact State15 ment, and thereafter adopted, in conjunction with

16 the National Marine Fisheries Service March 2,

17 1995 biological opinion of Federal Columbia River

18 Power System operations by the Bonneville Power

19 Administration, the Army Corps of Engineers, and

20 the Bureau of Reclamation except as may be nec21 essary for flood control or routine maintenance or

22 repair of generating units;

23 (3) reduce the power and energy generating ca24 pability of any dam on the Columbia or Snake Riv25 ers or their tributaries licensed by the Federal En-
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1 ergy Regulatory Commission to a level below 85 per2 cent of its capability in 1990;

3 (4)(A) reduce the level of the Columbia-Snake

4 River reservoirs below minimum operating pools (as

5 of the date of enactment of this Act), except as may

6 be necessary for flood control or maintenance or re7 pair of dam and navigation locks;

8 (B) reduce the reservoir levels below established

9 minimum irrigation pools; or

10 (C) further restrict access to the Columbia

11 River or Snake River for irrigation or recreational

12 use;

13 (5) impair the Columbia-Snake River inland

14 navigation system from Bonneville Dam to Lewiston,

15 Idaho (as of the date of enactment of this Act),

16 which shall remain at all times fully operational as

17 authorized by Congress;

18 (6) restrict or abrogate in any way the manage19 ment or control of State water rights; or

20 (7) require the release of stored water from any

21 Federal, State, or private water storage project.

22 (b) NO ACTION ABOVE RIVER MILE 106.—Unless

23 specifically authorized by Congress—

24 (1) a Federal or State agency shall not take

25 any action above Columbia River mile 106 that
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1 would reduce the Congressionally required minimum

2 14 foot navigation channel and navigation lock sill

3 clearance at minimum regulated flow, except as may

4 be necessary for purposes of flood control, or main5 tenance and repairs; and

6 (2) no Federal funds may be expended to study

7 the reduction of the minimum channel depth or lock

8 sill clearance unless specifically authorized by Con9 gress.

10 (c) JUDICIAL REVIEW.—

11 (1) IN GENERAL.—Except to enforce this sec12 tion, a Federal or State court, in reviewing agency

13 action concerning any federally authorized or li14 censed dam or navigational lock in the Columbia15 Snake River basin, shall be without jurisdiction to

16 issue any equitable relief concerning the operation,

17 removal, breach, or structural modification of the

18 dam or lock, and decisions concerning the operation,

19 removal, breach, or structural modification of those

20 dams and locks are declared to be within the exclu21 sive competence of Congress.

22 (2) CIVIL ACTION.—A person whose interests

23 may be adversely affected by a violation of this sec24 tion may bring a civil action in the person’s own be25 half to enjoin any person, including the United
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1 States and any governmental instrumentality or

2 agency (to the extent permitted by the 11th amend3 ment to the Constitution), from continuation of the

4 violation.

5 (3) PERIOD OF LIMITATION.—A civil action to

6 enjoin a violation of this section shall be brought not

7 later than 90 days of the date on which the agency

8 action becomes final.

9 (4) EXCLUSIVE VENUE.—A civil action to en10 join a violation of this section may be brought only

11 in the United States District Court for the District

12 of Columbia.

13 (5) STAY.—On motion by any party to a civil

14 action under this subsection, the Court, without re15 quiring bond or security of any kind, shall imme16 diately stay implementation of the agency action

17 pending final judgment (including judgment after

18 appeal) in the civil action.

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