[House Report 106-791]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-791
======================================================================
RECOVERY IMPLEMENTATION PROGRAM FOR THE ENDANGERED FISH SPECIES IN THE
UPPER COLORADO RIVER
_______
July 25, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2348]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2348) to authorize the Bureau of Reclamation to provide
cost sharing for the endangered fish recovery implementation
programs for the Upper Colorado and San Juan River Basins,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. PURPOSE.
The purpose of this Act is to authorize and provide funding for the
Bureau of Reclamation to continue the implementation of the endangered
fish recovery implementation programs for the Upper Colorado and San
Juan River Basins in order to accomplish the objectives of these
programs within a currently established time schedule.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) The term ``Recovery Implementation Programs'' means the
intergovernmental programs established pursuant to the 1988
Cooperative Agreement to implement the Recovery Implementation
Program for the Endangered Fish Species in the Upper Colorado
River dated September 29, 1987, and the 1992 Cooperative
Agreement to implement the San Juan River Recovery
Implementation Program dated October 21, 1992, and as they may
be amended by the parties thereto.
(2) The term ``Secretary'' means the Secretary of the
Interior.
(3) The term ``Upper Division States'' means the States of
Colorado, New Mexico, Utah, and Wyoming.
(4) The term ``Colorado River Storage Project'' or ``storage
project'' means those dams, reservoirs, power plants, and other
appurtenant project facilities and features authorized by and
constructed in accordance with the Colorado River Storage
Project Act (43 U.S.C. 620 et seq.).
(5) The term ``capital projects'' means planning, design,
permitting or other compliance, pre-construction activities,
construction, construction management, and replacement of
facilities, and the acquisition of interests in land or water,
as necessary to carry out the Recovery Implementation Programs.
(6) The term ``facilities'' includes facilities for the
genetic conservation or propagation of the endangered fishes,
those for the restoration of floodplain habitat or fish
passage, those for control or supply of instream flows, and
those for the removal or translocation of nonnative fishes.
(7) The term ``interests in land and water'' includes, but is
not limited to, long-term leases and easements, and long-term
enforcement, or other agreements protecting instream flows.
(8) The term ``base funding'' means funding for operation and
maintenance of capital projects, implementation of recovery
actions other than capital projects, monitoring and research to
evaluate the need for or effectiveness of any recovery action,
and program management, as necessary to carry out the Recovery
Implementation Programs. Base funding also includes annual
funding provided under the terms of the 1988 Cooperative
Agreement and the 1992 Cooperative Agreement.
(9) The term ``recovery actions other than capital projects''
includes short-term leases and agreements for interests in
land, water, and facilities; the reintroduction or augmentation
of endangered fish stocks; and the removal, translocation, or
other control of nonnative fishes.
(10) The term ``depletion charge'' means a one-time
contribution in dollars per acre-foot to be paid to the United
States Fish and Wildlife Service based on the average annual
new depletion by each project.
SEC. 3. AUTHORIZATION TO FUND RECOVERY PROGRAMS.
(a) Authorization of Appropriations for Federal Participation in
Capital Projects.--(1) There is hereby authorized to be appropriated to
the Secretary, $46,000,000 to undertake capital projects to carry out
the purposes of this Act. Such funds shall be considered a
nonreimbursable Federal expenditure.
(2) The authority of the Secretary, acting through the Bureau of
Reclamation, under this or any other provision of law to implement
capital projects for the Recovery Implementation Program for Endangered
Fish Species in the Upper Colorado River Basin shall expire in fiscal
year 2005 unless reauthorized by an Act of Congress.
(3) The authority of the Secretary to implement the capital projects
for the San Juan River Basin Recovery Implementation Program shall
expire in fiscal year 2007 unless reauthorized by an Act of Congress.
(b) Cost of Capital Projects.--The total costs of the capital
projects undertaken for the Recovery Implementation Programs receiving
assistance under this Act shall not exceed $100,000,000 of which--
(1) costs shall not exceed $82,000,000 for the Recovery
Implementation Program for Endangered Fish Species in the Upper
Colorado River Basin through fiscal year 2005; and
(2) costs shall not exceed $18,000,000 for the San Juan River
Recovery Implementation Program through fiscal year 2007.
The amounts set forth in this subsection shall be adjusted by the
Secretary for inflation in each fiscal year beginning after the
enactment of this Act.
(c) Non-Federal Contributions to Capital Projects.--(1) The
Secretary, acting through the Bureau of Reclamation, may accept
contributed funds from the Upper Division States, or political
subdivisions or organizations with the Upper Division States, pursuant
to agreements that provide for the contributions to be usedfor capital
projects costs. Such non-Federal contributions shall not exceed
$17,000,000.
(2) In addition to the contribution described in paragraph (1), the
Secretary of Energy, acting through the Western Area Power
Administration, and the Secretary of the Interior, acting through the
Bureau of Reclamation, may utilize power revenues collected pursuant to
the Colorado River Storage Project Act to carry out the purposes of
this subsection. Such funds shall be treated as reimbursable costs
assigned to power for repayment under section 5 of the Colorado River
Storage Project Act. This additional contribution shall not exceed
$17,000,000. Such funds shall be considered a non-Federal contribution
for the purposes of this Act. The funding authorized by this paragraph
over any 2-fiscal-year period shall be made available in amounts equal
to the contributions for the same two fiscal year period made by the
Upper Division States pursuant to paragraph (1).
(3) The additional funding provided pursuant to paragraph (2) may be
provided through loans from the Colorado Water Conservation Board
Construction Fund (37-60-121 C.R.S.) to the Western Area Power
Administration in lieu of funds which would otherwise be collected from
power revenues and used for storage project repayments. The Western
Area Power Administration is authorized to repay such loan or loans
from power revenues collected beginning in fiscal year 2012, subject to
an agreement between the Colorado Water Conservation Board, the Western
Area Power Administration, and the Bureau of Reclamation. The agreement
and any future loan contracts that may be entered into by the Colorado
Water Conservation Board, the Western Area Power Administration, and
the Bureau of Reclamation shall be negotiated in consultation with Salt
Lake City Area Integrated Projects Firm Power Contractors. The
agreement and loan contracts shall include provisions designed to
minimize impacts on electrical power rates and shall ensure that loan
repayment to the Colorado Water Conservation Board, including principal
and interest, is completed no later than September 30, 2057. The
Western Area Power Administration is authorized to include in power
rates such sums as are necessary to carry out this paragraph and
paragraph (2).
(4) All contributions made pursuant to this subsection shall be in
addition to the cost of replacement power purchased due to modifying
the operation of the Colorado River Storage Project and the capital
cost of water from Wolford Mountain Reservoir in Colorado. Such costs
shall be considered as non-Federal contributions, not to exceed
$20,000,000.
(d) Base Funding.--(1) Beginning in the first fiscal year commencing
after the date of enactment of this Act, the Secretary may utilize
power revenues collected pursuant to the Colorado River Storage Project
Act for the annual base funding contributions to the Recovery
Implementation Programs by the Bureau of Reclamation. Such funding
shall be treated as nonreimbursable and as having been repaid and
returned to the general fund of the Treasury as costs assigned to power
for repayment under section 5 of the Colorado River Storage Project
Act.
(2) For the Recovery Implementation Program for the Endangered Fish
Species in the Upper Colorado River Basin, the contributions to base
funding referred to in paragraph (1) shall not exceed $4,000,000 per
year. For the San Juan River Recovery Implementation Program, such
contributions shall not exceed $2,000,000 per year. The Secretary shall
adjust such amounts for inflation in fiscal years commencing after the
enactment of this Act. The utilization of power revenues for annual
base funding shall cease after the fiscal year 2011, unless
reauthorized by Congress; except that power revenues may continue to be
utilized to fund the operation and maintenance of capital projects and
monitoring. No later than the end of fiscal year 2008, the Secretary
shall submit a report on the utilization of power revenues for base
funding to the appropriate Committees of the United States Senate and
the House of Representatives. The Secretary shall also make a
recommendation in such report regarding the need for continued base
funding after fiscal year 2011 that may be required to fulfill the
goals of the Recovery Implementation Programs. Nothing in this Act
shall otherwise modify or amend existing agreements among participants
regarding base funding and depletion charges for the Recovery
Implementation Programs.
(3) The Western Area Power Administration and the Bureau of
Reclamation shall maintain sufficient revenues in the Colorado River
Basin Fund to meet their obligation to provide base funding in
accordance with paragraph (2). If the Western Area Power Administration
and the Bureau of Reclamation determine that the funds in the Colorado
River Basin Fund will not be sufficient to meet the obligations of
section 5(c)(1) of the Colorado River Storage Project Act for a 3-year
period, the Western Area Power Administration and the Bureau of
Reclamation shall request appropriations to meet base funding
obligations.
(e) Authority To Retain Appropriated Funds.--At the end of each
fiscal year any unexpended appropriated funds for capital projects
under this Act shall be retained for use in future fiscal years.
Unexpended funds under this Act that are carried over shall continue to
be used to implement the capital projects needed for the Recovery
Implementation Programs.
(f) Additional Authority.--The Secretary may enter into agreements
and contracts with Federal and non-Federal entities, acquire and
transfer interests in land, water, and facilities, and accept or give
grants in order to carry out the purposes of this Act.
(g) Indian Trust Assets.--The Congress finds that much of the
potential water development in the San Juan River Basin and in the
Duchesne River Basin (a subbasin of the Green River in the Upper
Colorado River Basin) is for the benefit of Indian tribes and most of
the federally designated critical habitat for the endangered fish
species in the San Juan River Basin is on Indian trust lands, and 2\1/
2\ miles of critical habitat on the Duchesne River is on Indian Trust
Land. Nothing in this Act shall be construed to restrict the Secretary,
acting through the Bureau of Reclamation and the Bureau of Indian
Affairs, from funding activities or capital projects in accordance with
the Federal Government's Indian trust responsibility.
(h) Termination of Authority.--All authorities provided by this
section for the respective Recovery Implementation Program shall
terminate upon expiration of the current time period for the respective
Cooperative Agreement referenced in section 2(1) unless, at least one
year prior to such expiration, the time period for the respective
Cooperative Agreement is extended to conform with this Act.
SEC. 4. EFFECT ON RECLAMATION LAW.
No provision of this Act nor any action taken pursuant thereto or in
furtherance thereof shall constitute a new or supplemental benefit
under the Act of June 17, 1902 (chapter 1093; 32 Stat. 388), and Acts
supplemental thereto and amendatory thereof (43 U.S.C. 371 et seq.).
PURPOSE OF THE BILL
The purpose of H.R. 2348 is to authorize the Bureau of
Reclamation to provide cost sharing for the endangered fish
recovery implementation programs for the Upper Colorado and San
Juan River Basins.
BACKGROUND
The Colorado River Basin is home to 14 native fish species.
Eight of these have seriously declined, and four species--the
Colorado pikeminnow (until recently it was known as the
squawfish), razorback sucker, humpback chub and bonytail--are
listed as endangered under the federal Endangered Species Act.
Two cooperative intergovernmental programs have been
established in the Upper Colorado River Basin to allow needed
water use and development to continue to proceed in compliance
with the federal Endangered Species Act. These are the Recovery
Implementation Program for Endangered Fish Species in the Upper
Colorado River Basin and the San Juan River Endangered Fish
Recovery Implementation Program.
The Upper Colorado Recovery Program was initiated by a
Cooperative Agreement signed on January 21, 1988, by Secretary
of the Interior Donald Hodel, the Governors of the States of
Colorado, Utah and Wyoming and the Administrator of the Western
Area Power Administration. The goal of the Upper Colorado
Recovery Program is to recover the Colorado pikeminnow
(Ptychocheilus lucius), humpback chub (Gila cypha), razorback
sucker (Xyrauchen texanus) and bonytail (Gila elegans) while
continuing to meet future water supply needs in the Upper Basin
states of Colorado, Utah, Wyoming. It is the intent of the
Committee that passage of this legislation and authorization of
the program will assure that there are no additional adverse
dam operational changes required. The States of Wyoming,
Colorado and Utah, environmental organizations, power users,
water users, the Bureau of Reclamation, the U.S. Fish and
Wildlife Service (USFWS), and the Western Area Power
Administration have been actively conducting and jointly
managing the Recovery Program since its initiation in 1988.
The States of Colorado and New Mexico, the Southern Ute
Indian Tribe, the Ute Mountain Ute Indian Tribe, the Navajo
Nation, the Jicarilla Apache Indian Tribe, the U.S. Bureau of
Reclamation, the USFWS, the Bureau of Indian Affairs, the
Bureau of Land Management and water users are the participants
in the San Juan River Program. The Program was initiated by a
Cooperative Agreement entered into on October 21, 1992, by the
participating States and agencies, and has as its goal to
recover the Colorado pikeminnow and the razorback sucker while
continuing to meet present and future water needs in the Upper
Basin States of Colorado and New Mexico.
H.R. 2348 authorizes the Bureau of Reclamation to provide
cost sharing for the endangered fish recovery implementation
programs for the Upper Colorado and San Juan River Basins. The
legislation would authorize $46 million to be paid by the
federal government (non-reimbursable federal expenditure); $17
million to be paid by the States; and $17 million from Colorado
River Storage Project power revenues. The legislation indicates
that the $17 million from the Colorado River Storage Project
``shall be treated as reimbursable costs assigned to power for
repayment under section 5 of the Colorado River Storage Project
Act (43 U.S.C. 620 et seq.).''
After the capital projects are constructed, power revenues
will provide the annual ``base funding'' for the Recovery
Implementation Program. This funding will be treated as having
been repaid and returned to general fund of the Treasury as
costs assigned to power for repayment under the Colorado River
Storage Project Act. After fiscal year 2011, power revenues
will continue to fund the operation and maintenance of capital
projects and monitoring.
COMMITTEE ACTION
H.R. 2348 was introduced on June 24, 1999, by Congressman
James Hansen (R-UT). The bill was referred to the Committee on
Resources, and within the Committee to the Subcommittee on
Water and Power. On October 21, 1999, the Subcommittee held a
hearing on the bill. On June 15, 1999, the Subcommittee met to
mark up the bill. Congressman John Doolittle (R-CA) offered an
amendment that altered the base-line funding of the project and
required the USFWS to pay for the base-line funding. The
amendment was adopted by voice vote. The bill, as amended, was
then ordered to be reported to the Full Committee by voice
vote. On June 20, 2000, the Full Resources Committee met to
consider the bill. Congressman Hansen offered an amendment in
the nature of a substitute that incorporated the language of
H.R. 2348 as introduced. In addition, the language made several
technical clarifications to the bill itself. The amendment was
adopted by voice vote. The bill, as amended, was then ordered
favorably reported to the House of Representatives by voice
vote.
SECTION-BY-SECTION ANALYSIS
Section 1. Purpose
This section describes the intent of this legislation.
Section 2. Definitions
This section provides definitions of terms used in the bill
including: ``Recovery Implementation Programs'', ``Secretary'',
``Upper Division States'', ``Colorado River Storage Project'',
``capital projects'', ``facilities'', ``interests in land and
water'', ``base funding'', ``recovery actions other than
capital projects'', and ``depletion charge''.
Section 3. Authorization To Fund Recovery Programs
This section authorizes the Upper Colorado and San Juan
River Basins Fish Recovery Program that incorporates $46
million as a non-reimbursable Federal expenditure; $17 million
to be paid by the States; and $17 million from Colorado River
Storage Project power revenues for fish and wildlife purposes.
It is the intent of the Committee that passage of this
legislation and the authorization of funding for the base line
monitoring and research program will not expand to a basic
science research program or a means to have the USFWS permit
studies on issues not directly related to the operation of the
capital projects. The Committee does not want the monitoring to
expand beyond the scope of the authorized program as has been
the case with the long-term monitoring and research program
authorized in section 1805, under Public Law 102-575, of the
Grand Canyon Protection Act.
To prevent the unauthorized expansion of the monitoring and
research program and overspending, the Committee expects the
Secretary to include in the annual budget justification for the
Bureau of Reclamation a detailed work program and budget
information that includes staffing, overhead, tasks, and an
explanation of the role the USFWS will play in the monitoring
and research program. The Committee also expects that the
budget justification, after fiscal year 2011, shall continue to
include a projection for the monitoring and research program
costs for each year after fiscal year 2011, until the
monitoring has been completed. The Committee expects this
information to be provided by the Secretary to this Committee,
and to the Senate Energy and Natural Resources Committee.
Section 4. Effect on Reclamation Law
This section makes clear that construction of facilities
and acquisition of land and water rights shall not render those
same subject to, or that funds received under this bill shall
not be considered a supplemental or additional benefit under,
the Reclamation Act of 1902 and acts supplementary thereto and
amendatory thereof.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. While a cost estimate has
been requested, it has not been received. The Committee
believes that enacting this bill will not have a significant
impact on the budget of the United States.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, the
Committee does not believe that this bill contains any new
budget authority, credit authority, or an increase or decrease
in revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has not received a cost estimate for
this bill from the Director of the Congressional Budget Office
at the time this bill report was filed.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
This bill makes no changes in existing law.
DISSENTING VIEWS
During the late 1950s and early 60s, the States of Wyoming,
Utah and Colorado, along with personnel from the U.S. Fish and
Wildlife Service participated in a project to ``rid the area of
coarse fish . . .'' (i.e., several of these now endangered
fish). This rotenoning project, ``which occurred between Sept.
2 and Sept. 8, 1962, was supported by a majority of the public,
according to interviewees and newspaper clippings.''
(Historical Accounts of Upper Colorado River Basin Endangered
Fish, produced by the Information and Education Committee of
the Upper Colorado River Basin. Page 38.) Now, Congress is
asked to provide tens of millions of dollars to save the same
fish they had earlier hoped to kill.
H.R. 2348 fails to address three important policy issues
regarding financial management and fiscal responsibility.
First, the legislation fails to include the Fish and
Wildlife Service (Service) as an active funding partner. When
money is allocated from a specific agency, the agency makes
decisions on how it should be allocated. Under the current
bill, the Bureau of Reclamation is responsible for the
construction costs of the project, and can properly budget for
these costs. However, the Bureau of Reclamation and the Western
Area Power Administration (WAPA) will be responsible for the
O&M costs of facilities to be operated and maintained by the
Service. This in effect, provides the Service a blank check for
the O&M of the project, and its monitoring. If the legislation
required the Service to pay these costs, then Congress would
know whether this program, when competing against other Service
priorities, is important enough for the Service to seek funding
for the program.
Second, the legislation proposes to utilize power revenues
to pay for the base funding of the recovery program without
effecting power rates. This has the effect of moving money from
an existing repayment obligation to finance a new program,
while at the same time crediting it to the Treasury as if the
original debt had been repaid. Specifically, this occurs under
Section 3(d)(1)(2) of the bill that requires the power revenue
to continue to fund the operation and maintenance of capital
projects and the continued monitoring of the recovery program.
In effect, this legislation diverts money that should be paid
to the Treasury for an existing obligation and uses it to pay
for a new obligation.
The third problem this type of financing mechanism causes
is a lack of Congressional oversight. This type of funding
outside of the ongoing scrutiny of the Congress, creates an
opportunity for run away spending. Our experience with this
mechanism has been disastrous both financially and
administratively. This is most evident in P.L. 102-575, Section
1805, the Grand Canyon Protection Act. The diversion of
reimbursable power revenues to fund unrelated expenditures has
resulted in more than a hundred million dollars in
administrative studies being spent without effective
Congressional oversight. Senate Report 106-000, the Energy and
Water Development Appropriation Bill, on page 91, concerning
the Grand Canyon Protection Act, states,
In the past, the Committee has expressed concern
about the increasing funding requirements for and the
steadily expanding scope of activities of the Grand
Canyon Monitoring and Research Center. Funding levels
continue an upward trend and as a result, the Committee
has included a provision in the bill to limit funding
at the fiscal year 2000 level adjusted for inflation.
Limiting available funding will allow for work
prioritization, focusing on the most important
activities. The Committee encourages the agency to seek
additional funding from outside non-Federal sources if
necessary.
The mistakes inherent in the funding approach used in the
Grand Canyon Protection Act should not be duplicated. Once the
monitoring begins, there should not be any unauthorized
expansion of the monitoring and research program.
John T. Doolittle.