II

106TH CONGRESS

2D SESSION S. 2239

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

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,

3 SECTION 1. PURPOSE.

4 The purpose of this Act is to authorize and provide

5 funding for the Bureau of Reclamation to continue the

6 implementation of the endangered fish recovery implemen7 tation programs for the Upper Colorado River and San
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1 Juan River basins in order to accomplish the objectives

2 of the programs within an established timeframe.

3 SEC. 2. DEFINITIONS.

4 In this Act:

5 (1) 1988 COOPERATIVE AGREEMENT.—The

6 term ‘‘1988 Cooperative Agreement’’ means the co7 operative agreement to implement the Recovery Im8 plementation Program for Endangered Fish Species

9 in the Upper Colorado River dated September 29,

10 1987, as the agreement may be amended.

11 (2) 1992 COOPERATIVE AGREEMENT.—The

12 term ‘‘1992 Cooperative Agreement’’ means the co13 operative agreement to implement the San Juan

14 River Recovery Program dated October 21, 1992, as

15 the agreement may be amended.

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

17 means—

18 (A) funding for—

19 (i) operation and maintenance of cap20 ital projects;

21 (ii) implementation of recovery actions

22 other than capital projects;

23 (iii) monitoring and research to evalu24 ate the need for or effectiveness of any re25 covery action; and
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1 (iv) program management;

2 as necessary to carry out the Recovery Imple3 mentation Programs; and

4 (B) annual funding provided under the

5 1988 Cooperative Agreement and the 1992 Co6 operative Agreement.

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

8 project’’ means a project involving—

9 (A) facilities planning, design, permitting

10 (or other compliance), preconstruction activity,

11 construction, and construction management;

12 (B) replacement of facilities; and

13 (C) acquisition of an interest in land or

14 water;

15 as necessary to carry out the Recovery Implementa16 tion Programs.

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

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

19 acre-foot to be paid by each water project to the

20 United States Fish and Wildlife Service based on

21 the average annual new depletion.

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

23 facility for—

24 (A) genetic conservation or propagation of

25 the endangered fishes;
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1 (B) restoration of floodplain habitat or fish

2 passage;

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

4 (D) removal or translocation of nonnative

5 fishes.

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

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

8 lease, easement, or agreement protecting instream

9 flows.

10 (8) RECOVERY ACTION OTHER THAN A CAPITAL

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

12 capital project’’ includes—

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

14 interest in land, water, or facilities;

15 (B) the reintroduction or augmentation of

16 endangered fish stocks; and

17 (C) the removal, translocation, or other

18 control of a nonnative fishes.

19 (9) RECOVERY IMPLEMENTATION PROGRAMS.—

20 The term ‘‘Recovery Implementation Program’’

21 means each of the intergovernmental programs es22 tablished under—

23 (A) the 1988 Cooperative Agreement; and

24 (B) the 1992 Cooperative Agreement.
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1 (10) SECRETARY.—The term ‘‘Secretary’’

2 means the Secretary of the Interior, acting through

3 the Commissioner of Reclamation.

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

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

6 and other appurtenant project facilities and features

7 authorized by and constructed in accordance with

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

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

10 620 et seq.).

11 (12) UPPER DIVISION STATE.—The term

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

13 Colorado, New Mexico, Utah, and Wyoming.

14 SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.

15 (a) AUTHORIZATION OF APPROPRIATIONS FOR FED16 ERAL PARTICIPATION IN CAPITAL PROJECTS.—

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

18 appropriated to the Secretary $46,000,000 to under19 take capital projects under this Act, to remain avail20 able until expended.

21 (2) NONREIMBURSABILITY.—Funds made avail22 able under paragraph (1) shall be a nonreimbursable

23 Federal expenditure.

24 (3) TERMINATION OF AUTHORITY.—
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1 (A) UPPER COLORADO RIVER BASIN.—The

2 authority of the Secretary under this Act or any

3 other provision of law to implement capital

4 projects for the Recovery Implementation Pro5 gram under the 1988 Cooperative Agreement

6 shall terminate on September 30, 2005.

7 (B) SAN JUAN RIVER BASIN.—The author8 ity of the Secretary under this Act or any other

9 provision of law to implement capital projects

10 for the Recovery Implementation Program

11 under the 1992 Cooperative Agreement shall

12 terminate on September 30, 2007.

13 (b) COST OF CAPITAL PROJECTS.—

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

15 projects undertaken for the Recovery Implementa16 tion Programs receiving assistance under this Act

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

18 (A) costs for the Recovery Implementation

19 Program under the 1988 Cooperative Agree20 ment through fiscal year 2005 shall not exceed

21 $82,000,000; and

22 (B) costs for the Recovery Implementation

23 Program under the 1992 Cooperative Agree24 ment through fiscal year 2007 shall not exceed

25 $18,000,000.
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1 (2) ADJUSTMENTS.—For each fiscal year begin2 ning after the date of enactment of this Act, the

3 Secretary shall adjust the amounts in paragraph (1)

4 for inflation based on an appropriate economic

5 index.

6 (c) NON-FEDERAL CONTRIBUTIONS TO CAPITAL

7 PROJECTS.—

8 (1) USE OF CONTRIBUTED FUNDS.—The Sec9 retary may—

10 (A) accept contributed funds not exceeding

11 $17,000,000 from the Upper Division States, or

12 political subdivisions of or organizations in the

13 Upper Division States, under agreements pro14 viding that the contributions shall be used for

15 capital projects costs; and

16 (B) expend such funds as if appropriated

17 for that purpose.

18 (2) USE OF POWER REVENUES.—

19 (A) IN GENERAL.—The Secretary of En20 ergy, acting through the Western Area Power

21 Administration, and the Secretary may use

22 power revenues not exceeding $17,000,000 col23 lected under the Act of April 11, 1956 (43

24 U.S.C. 620 et seq.) to carry out this subsection.
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1 (B) REIMBURSABILITY.—Revenues used as

2 provided under subparagraph (A) shall be treat3 ed as reimbursable costs assigned to power for

4 repayment under section 5 of the Act of April

5 11, 1956 (43 U.S.C. 620d).

6 (C) TREATMENT AS NON-FEDERAL CON7 TRIBUTION.—Revenues used as provided in sub8 paragraph (A) shall be considered a non-Fed9 eral contribution for the purposes of this Act.

10 (D) AVAILABILITY ON MATCHING BASIS.—

11 Funding under this paragraph over any 2-fis12 cal-year period shall be made available in

13 amounts equal to the contributions for the same

14 2-fiscal-year period made by the Upper Division

15 States under paragraph (1).

16 (E) ALTERNATIVE FUNDING THROUGH

17 LOANS.—

18 (i) IN GENERAL.—Funding under

19 subparagraph (A) may be provided

20 through loans from the Colorado Water

21 Conservation Board Construction Fund es22 tablished under section 37–60–121 of the

23 Colorado Revised Statutes to the Western

24 Area Power Administration in lieu of funds

25 that would otherwise be collected from
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1 power revenues and used for storage

2 project repayments.

3 (ii) AGREEMENT.—The Western Area

4 Power Administration is authorized to

5 repay a loan under clause (i) from power

6 revenues collected beginning in fiscal year

7 2012, subject to an agreement between the

8 Colorado Water Conservation Board, the

9 Western Area Power Administration, and

10 the Bureau of Reclamation.

11 (iii) REQUIREMENTS.—An agreement

12 under clause (i) and any loan contracts

13 that may be entered into by the Colorado

14 Water Conservation Board, the Western

15 Area Power Administration, and the Bu16 reau of Reclamation shall—

17 (I) be negotiated in consultation

18 with Salt Lake City Area Integrated

19 Projects Firm Power Contractors;

20 (II) include provisions designed

21 to minimize impacts on electrical

22 power rates; and

23 (III) ensure that loan repayment

24 to the Colorado Water Conservation

25 Board, including principal and inter-
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1 est, is completed not later than Sep2 tember 30, 2057.

3 (F) POWER RATES.—The Western Area

4 Power Administration is authorized to include

5 in power rates such sums as are necessary to

6 carry out this paragraph.

7 (3) FUNDING IN ADDITION TO COST OF RE8 PLACEMENT POWER.—

9 (A) IN GENERAL.—All contributions made

10 under this subsection shall be in addition to—

11 (i) the cost of replacement power pur12 chased as a result of the modification of

13 the operation of the Colorado River Stor14 age Project; and

15 (ii) the capital cost of water from

16 Wolford Mountain Reservoir in Colorado.

17 (B) TREATMENT AS NON-FEDERAL CON18 TRIBUTION.—The costs described in clauses (i)

19 and (ii) of subparagraph (A) shall be considered

20 as non-Federal contributions, not to exceed

21 $20,000,000.

22 (d) BASE FUNDING.—

23 (1) IN GENERAL.—

24 (A) POWER REVENUES.—Beginning with

25 the first fiscal year beginning after the date of
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1 enactment of this Act, the Secretary may use

2 power revenues collected under the Act of April

3 11, 1956 (43 U.S.C. 620 et seq.), for the an4 nual base funding contributions to the Recovery

5 Implementation Programs by the Bureau of

6 Reclamation.

7 (B) TREATMENT.—Use of revenues as pro8 vided under subparagraph (A) shall be treated

9 as nonreimbursable and as having been repaid

10 and returned to the general fund of the Treas11 ury as costs assigned to power for repayment

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

13 (43 U.S.C. 620d).

14 (2) LIMITATION.—

15 (A) IN GENERAL.—

16 (i) UPPER COLORADO RIVER BASIN.—

17 For the Recovery Implementation Program

18 under the 1988 Cooperative Agreement,

19 the contributions to base funding under

20 paragraph (1) shall not exceed $4,000,000

21 per fiscal year.

22 (ii) SAN JUAN RIVER BASIN.—For the

23 Recovery Implementation Program under

24 the 1992 Cooperative Agreement, the con25 tributions to base funding under paragraph
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1 (1) shall not exceed $2,000,000 per fiscal

2 year.

3 (B) ADJUSTMENTS.—The Secretary shall

4 adjust the amounts in subparagraph (A) for in5 flation in fiscal years beginning after the date

6 of enactment of this Act.

7 (C) TERMINATION OF AUTHORITY.—The

8 use of power revenues for annual base funding

9 shall terminate on September 30, 2011, except

10 that power revenues may continue to be used to

11 fund the operation and maintenance of capital

12 projects and monitoring.

13 (D) REPORT.—

14 (i) IN GENERAL.—Not later than Sep15 tember 30, 2008, the Secretary shall sub16 mit to Congress a report on the use of

17 power revenues for base funding.

18 (ii) RECOMMENDATION.—The report

19 under clause (i) shall include a rec20 ommendation regarding the need for con21 tinued base funding after fiscal year 2011

22 that may be required to fulfill the goals of

23 the Recovery Implementation Programs.

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

25 affects any agreement among participants re-
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1 garding base funding and depletion charges for

2 the Recovery Implementation Programs.

3 (3) SUFFICIENCY OF REVENUES.—

4 (A) IN GENERAL.—The Western Area

5 Power Administration and the Bureau of Rec6 lamation shall maintain sufficient revenues in

7 the Upper Colorado River Basin Fund to meet

8 the obligation of the Western Area Power Ad9 ministration and the Bureau of Reclamation to

10 provide base funding in accordance with this

11 subsection.

12 (B) DETERMINATION OF INSUFFI13 CIENCY.—If the Western Area Power Adminis14 tration and the Bureau of Reclamation deter15 mine that the funds in the Upper Colorado

16 River Basin Fund will not be sufficient to meet

17 the obligations of the Western Area Power Ad18 ministration and the Bureau of Reclamation

19 under section 5(c)(1) of the Act of April 11,

20 1956 (43 U.S.C. 620d(c)(1)), for a 3-year pe21 riod, the Western Area Power Administration

22 and the Bureau of Reclamation shall request

23 appropriations to meet base funding obligations.

24 (e) ADDITIONAL AUTHORITY.—The Secretary may—
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1 (1) enter into agreements and contracts with

2 Federal and non-Federal entities;

3 (2) acquire and transfer interests in land,

4 water, and facilities; and

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

6 (f) INDIAN TRUST ASSETS.—

7 (1) FINDINGS.—Congress finds that—

8 (A) much of the potential water develop9 ment in the San Juan River basin and in the

10 Duchesne River basin (a subbasin of the Green

11 River in the Upper Colorado River basin) is for

12 the benefit of Indian tribes;

13 (B) most of the federally designated crit14 ical habitat for the endangered fish species in

15 the San Juan River basin is on Indian trust

16 land; and

(C) 21 17 ⁄2 miles of the critical habitat on the

18 Duchesne River is on Indian trust land.

19 (2) EFFECT OF ACT.—Nothing in this Act re20 stricts the Secretary of the Interior, acting through

21 the Commissioner of Reclamation or the Director of

22 the Bureau of Indian Affairs, in funding activities or

23 capital projects in the performance of the Indian

24 trust responsibility of the United States.
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1 (g) TERMINATION OF SPENDING AUTHORITY.—All

2 spending authorities provided by this section for the Re3 covery Implementation Programs shall terminate on expi4 ration of the time period in effect on the date of enactment

5 of this Act for 1988 Cooperative Agreement and the 1992

6 Cooperative Agreement, respectively, unless, at least 1

7 year before such expiration, the time period for the cooper8 ative agreement is extended to conform with this Act.

9 SEC. 4. EFFECT ON RECLAMATION LAW.

10 Construction of a facility or acquisition of an interest

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

12 or interest in land or water or associated processes and

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

14 388, chapter 1093), and Acts supplemental to and amend15 atory of that Act (43 U.S.C. 371 et seq.).

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