II

Calendar No. 793

106TH CONGRESS

2D SESSION S. 2239

[Report No. 106–403]

To authorize the Bureau of Reclamation to provide cost sharing for the

endangered fish recovery implementation programs for the Upper Colorado River and San Juan River basins.

IN THE SENATE OF THE UNITED STATES

MARCH 9, 2000

Mr. ALLARD (for himself, Mr. CAMPBELL, Mr. HATCH, Mr. BENNETT, and

Mr. BINGAMAN) introduced the following bill; which was read twice and

referred to the Committee on Energy and Natural Resources

SETPEMBER 7, 2000

Reported by Mr. MURKOWSKI, with an amendment

[Omit the part struck through and insert the part printed in italic]

A BILL

To authorize the Bureau of Reclamation to provide cost

sharing for the endangered fish recovery implementation

programs for the Upper Colorado River and San Juan

River basins.

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. PURPOSE.

2 The purpose of this Act is to authorize and provide

3 funding for the Bureau of Reclamation to continue the

4 implementation of the endangered fish recovery implemen5 tation programs for the Upper Colorado River and San

6 Juan River basins in order to accomplish the objectives

7 of the programs within an established timeframe.

8 SEC. 2. DEFINITIONS.

9 In this Act:

10 (1) 1988 COOPERATIVE AGREEMENT.—The

11 term ‘‘1988 Cooperative Agreement’’ means the co12 operative agreement to implement the Recovery Im13 plementation Program for Endangered Fish Species

14 in the Upper Colorado River dated September 29,

15 1987, as the agreement may be amended.

16 (2) 1992 COOPERATIVE AGREEMENT.—The

17 term ‘‘1992 Cooperative Agreement’’ means the co18 operative agreement to implement the San Juan

19 River Recovery Program dated October 21, 1992, as

20 the agreement may be amended.

21 (3) BASE FUNDING.—The term ‘‘base funding’’

22 means—

23 (A) funding for—

24 (i) operation and maintenance of cap25 ital projects;
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1 (ii) implementation of recovery actions

2 other than capital projects;

3 (iii) monitoring and research to evalu4 ate the need for or effectiveness of any re5 covery action; and

6 (iv) program management;

7 as necessary to carry out the Recovery Imple8 mentation Programs; and

9 (B) annual funding provided under the

10 1988 Cooperative Agreement and the 1992 Co11 operative Agreement.

12 (4) CAPITAL PROJECT.—The term ‘‘capital

13 project’’ means a project involving—

14 (A) facilities planning, design, permitting

15 (or other compliance), preconstruction activity,

16 construction, and construction management;

17 (B) replacement of facilities; and

18 (C) acquisition of an interest in land or

19 water;

20 as necessary to carry out the Recovery Implementa21 tion Programs.

22 (5) DEPLETION CHARGE.—The term ‘‘depletion

23 charge’’ means a one-time contribution in dollars per

24 acre-foot to be paid by each water project to the
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1 United States Fish and Wildlife Service based on

2 the average annual new depletion.

3 (6) FACILITY.—The term ‘‘facility’’ includes a

4 facility for—

5 (A) genetic conservation or propagation of

6 the endangered fishes;

7 (B) restoration of floodplain habitat or fish

8 passage;

9 (C) control or supply of instream flows; or

10 (D) removal or translocation of nonnative

11 fishes.

12 (7) INTEREST IN LAND OR WATER.—The term

13 ‘‘interest in land or water’’ includes a long-term

14 lease, easement, or agreement protecting instream

15 flows.

16 (8) RECOVERY ACTION OTHER THAN A CAPITAL

17 PROJECT.—The term ‘‘recovery action other than a

18 capital project’’ includes—

19 (A) a short-term lease or agreement for an

20 interest in land, water, or facilities;

21 (B) the reintroduction or augmentation of

22 endangered fish stocks; and

23 (C) the removal, translocation, or other

24 control of a nonnative fishes.
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1 (9) RECOVERY IMPLEMENTATION PROGRAMS.—

2 The term ‘‘Recovery Implementation Program’’

3 means each of the intergovernmental programs es4 tablished under—

5 (A) the 1988 Cooperative Agreement; and

6 (B) the 1992 Cooperative Agreement.

7 (10) SECRETARY.—The term ‘‘Secretary’’

8 means the Secretary of the Interior, acting through

9 the Commissioner of Reclamation.

10 (11) STORAGE PROJECT.—The term ‘‘storage

11 project’’ means the dams, reservoirs, power plants,

12 and other appurtenant project facilities and features

13 authorized by and constructed in accordance with

14 the Act of April 11, 1956 (commonly known as the

15 ‘‘Colorado River Storage Project Act’’) (43 U.S.C.

16 620 et seq.).

17 (12) UPPER DIVISION STATE.—The term

18 ‘‘Upper Division State’’ means each of the States of

19 Colorado, New Mexico, Utah, and Wyoming.

20 SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.

21 (a) AUTHORIZATION OF APPROPRIATIONS FOR FED22 ERAL PARTICIPATION IN CAPITAL PROJECTS.—

23 (1) IN GENERAL.—There is authorized to be

24 appropriated to the Secretary $46,000,000 to under-
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1 take capital projects under this Act, to remain avail2 able until expended.

3 (2) NONREIMBURSABILITY.—Funds made avail4 able under paragraph (1) shall be a nonreimbursable

5 Federal expenditure.

6 (3) TERMINATION OF AUTHORITY.—

7 (A) UPPER COLORADO RIVER BASIN.—The

8 authority of the Secretary under this Act or any

9 other provision of law to implement capital

10 projects for the Recovery Implementation Pro11 gram under the 1988 Cooperative Agreement

12 shall terminate on September 30, 2005.

13 (B) SAN JUAN RIVER BASIN.—The author14 ity of the Secretary under this Act or any other

15 provision of law to implement capital projects

16 for the Recovery Implementation Program

17 under the 1992 Cooperative Agreement shall

18 terminate on September 30, 2007.

19 (b) COST OF CAPITAL PROJECTS.—

20 (1) IN GENERAL.—The total costs of the capital

21 projects undertaken for the Recovery Implementa22 tion Programs receiving assistance under this Act

23 shall not exceed $100,000,000, of which—

24 (A) costs for the Recovery Implementation

25 Program under the 1988 Cooperative Agree-
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1 ment through fiscal year 2005 shall not exceed

2 $82,000,000; and

3 (B) costs for the Recovery Implementation

4 Program under the 1992 Cooperative Agree5 ment through fiscal year 2007 shall not exceed

6 $18,000,000.

7 (2) ADJUSTMENTS.—For each fiscal year begin8 ning after the date of enactment of this Act, the

9 Secretary shall adjust the amounts in paragraph (1)

10 for inflation based on an appropriate economic

11 index.

12 (c) NON-FEDERAL CONTRIBUTIONS TO CAPITAL

13 PROJECTS.—

14 (1) USE OF CONTRIBUTED FUNDS.—The Sec15 retary may—

16 (A) accept contributed funds not exceeding

17 $17,000,000 from the Upper Division States, or

18 political subdivisions of or organizations in the

19 Upper Division States, under agreements pro20 viding that the contributions shall be used for

21 capital projects costs; and

22 (B) expend such funds as if appropriated

23 for that purpose.

24 (2) USE OF POWER REVENUES.—
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1 (A) IN GENERAL.—The Secretary of En2 ergy, acting through the Western Area Power

3 Administration, and the Secretary may use

4 power revenues not exceeding $17,000,000 col5 lected under the Act of April 11, 1956 (43

6 U.S.C. 620 et seq.) to carry out this subsection.

7 (B) REIMBURSABILITY.—Revenues used as

8 provided under subparagraph (A) shall be treat9 ed as reimbursable costs assigned to power for

10 repayment under section 5 of the Act of April

11 11, 1956 (43 U.S.C. 620d).

12 (C) TREATMENT AS NON-FEDERAL CON13 TRIBUTION.—Revenues used as provided in sub14 paragraph (A) shall be considered a non-Fed15 eral contribution for the purposes of this Act.

16 (D) AVAILABILITY ON MATCHING BASIS.—

17 Funding under this paragraph over any 2-fis18 cal-year period shall be made available in

19 amounts equal to the contributions for the same

20 2-fiscal-year period made by the Upper Division

21 States under paragraph (1).

22 (E) ALTERNATIVE FUNDING THROUGH

23 LOANS.—

24 (i) IN GENERAL.—Funding under

25 subparagraph (A) may be provided
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1 through loans from the Colorado Water

2 Conservation Board Construction Fund es3 tablished under section 37–60–121 of the

4 Colorado Revised Statutes to the Western

5 Area Power Administration in lieu of funds

6 that would otherwise be collected from

7 power revenues and used for storage

8 project repayments.

9 (ii) AGREEMENT.—The Western Area

10 Power Administration is authorized to

11 repay a loan under clause (i) from power

12 revenues collected beginning in fiscal year

13 2012, subject to an agreement between the

14 Colorado Water Conservation Board, the

15 Western Area Power Administration, and

16 the Bureau of Reclamation.

17 (iii) REQUIREMENTS.—An agreement

18 under clause (i) and any loan contracts

19 that may be entered into by the Colorado

20 Water Conservation Board, the Western

21 Area Power Administration, and the Bu22 reau of Reclamation shall—

23 (I) be negotiated in consultation

24 with Salt Lake City Area Integrated

25 Projects Firm Power Contractors;
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1 (II) include provisions designed

2 to minimize impacts on electrical

3 power rates; and

4 (III) ensure that loan repayment

5 to the Colorado Water Conservation

6 Board, including principal and inter7 est, is completed not later than Sep8 tember 30, 2057.

9 (F) POWER RATES.—The Western Area

10 Power Administration is authorized to include

11 in power rates such sums as are necessary to

12 carry out this paragraph.

13 (3) FUNDING IN ADDITION TO COST OF RE14 PLACEMENT POWER.—

15 (A) IN GENERAL.—All contributions made

16 under this subsection shall be in addition to—

17 (i) the cost of replacement power pur18 chased as a result of the modification of

19 the operation of the Colorado River Stor20 age Project; and

21 (ii) the capital cost of water from

22 Wolford Mountain Reservoir in Colorado.

23 (B) TREATMENT AS NON-FEDERAL CON24 TRIBUTION.—The costs described in clauses (i)

25 and (ii) of subparagraph (A) shall be considered
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1 as non-Federal contributions, not to exceed

2 $20,000,000.

3 (d) BASE FUNDING.—

4 (1) IN GENERAL.—

5 (A) POWER REVENUES.—Beginning with

6 the first fiscal year beginning after the date of

7 enactment of this Act, the Secretary may use

8 power revenues collected under the Act of April

9 11, 1956 (43 U.S.C. 620 et seq.), for the an10 nual base funding contributions to the Recovery

11 Implementation Programs by the Bureau of

12 Reclamation.

13 (B) TREATMENT.—Use of revenues as pro14 vided under subparagraph (A) shall be treated

15 as nonreimbursable and as having been repaid

16 and returned to the general fund of the Treas17 ury as costs assigned to power for repayment

18 under section 5 of the Act of April 11, 1956

19 (43 U.S.C. 620d).

20 (2) LIMITATION.—

21 (A) IN GENERAL.—

22 (i) UPPER COLORADO RIVER BASIN.—

23 For the Recovery Implementation Program

24 under the 1988 Cooperative Agreement,

25 the contributions to base funding under
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1 paragraph (1) shall not exceed $4,000,000

2 per fiscal year.

3 (ii) SAN JUAN RIVER BASIN.—For the

4 Recovery Implementation Program under

5 the 1992 Cooperative Agreement, the con6 tributions to base funding under paragraph

7 (1) shall not exceed $2,000,000 per fiscal

8 year.

9 (B) ADJUSTMENTS.—The Secretary shall

10 adjust the amounts in subparagraph (A) for in11 flation in fiscal years beginning after the date

12 of enactment of this Act.

13 (C) TERMINATION OF AUTHORITY.—The

14 use of power revenues for annual base funding

15 shall terminate on September 30, 2011, except

16 that power revenues may continue to be used to

17 fund the operation and maintenance of capital

18 projects and monitoring.

19 (D) REPORT.—

20 (i) IN GENERAL.—Not later than Sep21 tember 30, 2008, the Secretary shall sub22 mit to Congress a report on the use of

23 power revenues for base funding.

24 (ii) RECOMMENDATION.—The report

25 under clause (i) shall include a rec-
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1 ommendation regarding the need for con2 tinued base funding after fiscal year 2011

3 that may be required to fulfill the goals of

4 the Recovery Implementation Programs.

5 (E) EFFECT OF ACT.—Nothing in this Act

6 affects any agreement among participants re7 garding base funding and depletion charges for

8 the Recovery Implementation Programs.

9 (3) SUFFICIENCY OF REVENUES.—

10 (A) IN GENERAL.—The Western Area

11 Power Administration and the Bureau of Rec12 lamation shall maintain sufficient revenues in

13 the Upper Colorado River Basin Fund to meet

14 the obligation of the Western Area Power Ad15 ministration and the Bureau of Reclamation to

16 provide base funding in accordance with this

17 subsection.

18 (B) DETERMINATION OF INSUFFI19 CIENCY.—If the Western Area Power Adminis20 tration and the Bureau of Reclamation deter21 mine that the funds in the Upper Colorado

22 River Basin Fund will not be sufficient to meet

23 the obligations of the Western Area Power Ad24 ministration and the Bureau of Reclamation

25 under section 5(c)(1) of the Act of April 11,
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1 1956 (43 U.S.C. 620d(c)(1)), for a 3-year pe2 riod, the Western Area Power Administration

3 and the Bureau of Reclamation shall request

4 appropriations to meet base funding obligations.

5 (e) ADDITIONAL AUTHORITY.—The Secretary may—

6 (1) enter into agreements and contracts with

7 Federal and non-Federal entities;

8 (2) acquire and transfer interests in land,

9 water, and facilities; and

10 (3) accept or give grants to carry out this Act.

11 (f) INDIAN TRUST ASSETS.—

12 (1) FINDINGS.—Congress finds that—

13 (A) much of the potential water develop14 ment in the San Juan River basin and in the

15 Duchesne River basin (a subbasin of the Green

16 River in the Upper Colorado River basin) is for

17 the benefit of Indian tribes;

18 (B) most of the federally designated crit19 ical habitat for the endangered fish species in

20 the San Juan River basin is on Indian trust

21 land; and

(C) 21 22 ⁄2 miles of the critical habitat on the

23 Duchesne River is on Indian trust land.

24 (2) EFFECT OF ACT.—Nothing in this Act re25 stricts the Secretary of the Interior, acting through
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1 the Commissioner of Reclamation or the Director of

2 the Bureau of Indian Affairs, in funding activities or

3 capital projects in the performance of the Indian

4 trust responsibility of the United States.

5 (g) TERMINATION OF SPENDING AUTHORITY.—All

6 spending authorities provided by this section for the Re7 covery Implementation Programs shall terminate on expi8 ration of the time period in effect on the date of enactment

9 of this Act for 1988 Cooperative Agreement and the 1992

10 Cooperative Agreement, respectively, unless, at least 1

11 year before such expiration, the time period for the cooper12 ative agreement is extended to conform with this Act.

13 SEC. 4. EFFECT ON RECLAMATION LAW.

14 Construction of a facility or acquisition of an interest

15 in land or water under this Act shall not render the facility

16 or interest in land or water or associated processes and

17 procedures subject to the Act of June 17, 1902 (32 Stat.

18 388, chapter 1093), and Acts supplemental to and amend19 atory of that Act (43 U.S.C. 371 et seq.).

20 No provision of this Act nor any action taken pursu21 ant thereto or in furtherance thereof shall constitute a new

22 or supplemental benefit under the Act of June 17, 1902,

23 (32 Stat. 388, chapter 1093), and Acts supplemental to and

24 amendatory thereof (43 U.S.C. 371 et seq.).
Calendar No. 793

106TH CONGRESS

2D SESSION S. 2239

[Report No. 106–403]

A BILL

To authorize the Bureau of Reclamation to provide

cost sharing for the endangered fish recovery implementation programs for the Upper ColoradoRiver and San Juan River basins.

SEPTEMBER 7, 2000

Reported with an amendment