[Senate Report 109-31]
[From the U.S. Government Publishing Office]
Calendar No. 44
109th Congress Report
SENATE
1st Session 109-31
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FISH PASSAGE AND SCREENING FACILITIES AT NON-FEDERAL WATER PROJECTS
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March 10, 2005.--Ordered to be printed
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Mr. Domenici, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 232]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 232) to authorize the Secretary of the
Interior, acting through the Bureau of Reclamation, to assist
in the implementation of fish passage and screening facilities
at non-Federal water projects, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
PURPOSE OF THE MEASURE
The purpose of S. 232 is to authorize the Secretary of the
Interior, acting through the Bureau of Reclamation, to assist
in the implementation of fish passage and screening facilities
at non-Federal water projects.
BACKGROUND AND NEED
In December 2000, the National Oceanic and Atmospheric
Administration issued a Biological Opinion on the Federal
Columbia River Power System (FCRPS), operated by the Bureau of
Reclamation (Reclamation), the U.S. Army Corps of Engineers
(Corps), and Bonneville Power Administration. The Biological
Opinion concluded that hydropower operations at both
Reclamation and Corps facilities are insufficient to avoid
jeopardy to 8 of the 12 Columbia River Basin salmon and
steelhead species listed as threatened or endangered under the
Endangered Species Act. To avoid jeopardy, the Biological
Opinion proposes a reasonable and prudent alternative which
includes certain ``off-site'' actions, such as significant
improvements to habitat, hatcheries, and harvest.
One of Reclamation's responsibilities under the Biological
Opinion involves resolving fish passage and fish screening
problems at non-Federal diversions in certain priority sub-
basins. The work will improve tributary habitat in up to 15
sub-basins in the Columbia River Basin. Reclamation is
currently using existing authority to perform technical
assistance in some of these sub-basins located in Oregon,
Washington, and Idaho. In its decision document accepting the
requirements of the Biological Opinion, Reclamation agreed to
seek the authority to fund construction of projects in order to
implement fully its habitat improvement commitment under the
Biological Opinion and to help overcome jeopardy from the
operation of the FCRPS hydropower projects.
In a challenge to the legal sufficiency of the 2000 FCRPS
Biological Opinion, the Federal District Court of Oregon ruled
that the Biological Opinion was flawed in that certain actions
to be undertaken were not reasonably certain to occur,
partially because the agencies lacked authority for those
actions. S. 232 is intended to resolve this authority issue for
Reclamation's tributary habitat and fish passage improvement
responsibilities.
LEGISLATIVE HISTORY
S. 232 was introduced on February 1, 2005 by Senator Smith.
S. 232 is identical to S. 1307 as passed by the Senate in the
108th Congress.
During the 108th Congress, S. 1307 was introduced by
Senator Smith on June 20, 2003. The Subcommittee on Water and
Power held a hearing on S. 1307 on October 15, 2003. S. Hrg.
108-271. At the business meeting on March 10, 2004, the
Committee on Energy and Natural Resources ordered S. 1307
favorably reported with an amendment in the nature of a
substitute. S. Rept. 108-249. S. 1307 was passed by the Senate,
as amended, by unanimous consent on September 15, 2004.
At a business meeting on February 9, 2005, the Committee on
Energy and Natural Resources ordered S. 232 favorably reported.
COMMITTEE RECOMMENDATION
The Committee on Energy and Natural Resources, in open
business session on February 9, 2005, by unanimous vote of a
quorum present recommends that the Senate pass S. 232.
SECTION-BY-SECTION ANALYSIS
Section 1 defines key terms used in the Act. Within the
scope of fish passage improvement strategies, referred to in
section 1(3), the Committee intends that non-Federal entities
may seek funds under this Act to decommission facilities no
longer needed.
Section 2(a) authorizes the Secretary to plan, design, and
construct, or provide financial assistance to non-Federal
parties to plan, design, and construct, fish passage and
screening facilities or habitat improvements at any non-Federal
water diversion or storage project located in the Columbia
River Basin. In authorizing the Secretary of the Interior,
acting through the Bureau, to assist in the implementation of
fish passage and screening facilities at non-Federal water
projects, the Committee intends for the Secretary to give due
deference to State priorities concerning the location of fish
passage and screening facilities, and to work in close concert
with the Governors of each State and appropriate State agencies
to ensure coordination.
Subsection (b) states that nothing in the Act authorizes
the acquisition of land for habitat improvements.
Section 3(a)(1) provides that the Secretary may only
undertake the actions authorized in the Act after entering into
a voluntary, written agreement with the non-Federal party or
parties who own, operate, or maintain the project or any
associated lands involved.
Subsection (b) limits the Federal cost share to 75 percent.
Subsection (c)(1) states that the written agreements
between the Secretary and the non-Federal parties shall provide
that the non-Federal party agrees to pay the non-Federal share
of the total costs.
Subsection (c)(2) allows the non-Federal share to be in the
form of cash or in-kind services.
Subsection (c)(3) is self-explanatory.
Subsection (c)(4) is self-explanatory.
Subsection (d) provides that any financial assistance made
available under this Act shall be provided through grant
agreements or cooperative agreements.
Subsection (e) allows the Secretary to require terms and
conditions to ensure performance by the non-Federal parties,
protect Federal investments, define obligations of the
Secretary and the non-Federal parties, and ensure compliance
with all applicable Federal, State and local laws.
Subsection (f) provides that all right and title to, and
interest in, all fish passage and screening facilities
constructed or funded under the Act shall be held by the non-
Federal parties. Additionally, this subsection provides that
the operation, maintenance, and replacement of the facilities
shall be the sole responsibility of the non-Federal parties and
shall not be a project cost assignable to any Federal
reclamation project.
Section 4(a) allows the Secretary to assist a non-Federal
party with obtaining or complying with any State, local, or
tribal permits.
Subsection (b) provides that the Secretary shall be subject
to all Federal laws applicable to activities associated with
the construction of a fish passage and screening facility or
habitat improvements.
Subsection (c)(1) requires the Secretary to comply with any
applicable State water laws.
Subsection (c)(2) states that nothing in the Act affects
any water or water-related right of a State, an Indian tribe,
or any other person or entity.
Subsection (d) requires the Secretary to coordinate with
the Northwest Power and Conservation Council, appropriate State
agencies, and appropriate Indian tribes in carrying out the
programs authorized in the Act.
Section 5(a) provides that the Reclamation Act of 1902 and
Acts amendatory or supplementary thereof and thereto, shall not
apply to the non-Federal water projects where fish passage and
screening facilities authorized by this Act are located or to
the lands irrigated by the projects.
Subsection 5(b) provides that expenditures made by the
Secretary pursuant to this Act are not project costs assignable
to any Federal Reclamation project and are non-reimbursable and
non-returnable to the United States Treasury.
Section 6 authorizes appropriations.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office.
February 14, 2005.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 232, a bill to
authorize the Secretary of the Interior, acting through the
Bureau of Reclamation, to assist in the implementation of fish
passage and screening facilities at nonfederal water projects,
and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Julie
Middleton.
Sincerely,
Douglas Holtz-Eakin.
Enclosure.
S. 232--A bill to authorize the Secretary of the Interior, acting
through the Bureau of Reclamation, to assist in the
implementation of fish passage and screening facilities at
nonfederal water projects, and for other purposes
Summary: S. 232 would authorize the Bureau of Reclamation
to participate in the planning and construction of fish passage
and screening facilities and habitat improvement projects at
nonfederal water storage projects located in the Columbia River
Basin in the Pacific Northwest if the facilities would enable
the bureau to meet its obligations under the Endangered Species
Act. The federal share of the construction costs of such
projects would not exceed 75 percent. In addition, the federal
government would not hold title to any fish passage or
screening facilities constructed under this bill, nor would the
federal government be responsible for the operation and
maintenance of those facilities.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing S. 232 would cost about $22 million
over the 2006-2010 period. This bill would not affect direct
spending or revenues. S. 232 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would impose no costs on state, local, or
tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 232 is shown in the following table. The
costs of this legislation fall within budget function 300
(natural resources and environment).
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By fiscal year, in millions of dollars--
--------------------------------------------
2006 2007 2008 2009 2010
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 4 4 5 5 6
Estimated outlays.................................................. 3 3 5 5 6
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Basis of estimate: For this estimate, CBO assumes that S.
232 will be enacted before the end of fiscal year 2005 and that
the necessary amounts will be appropriated in each fiscal year
starting in 2006. Based on information from the Bureau of
Reclamation and historical spending patterns of similar
construction projects, CBO estimates that implementing the
projects outlined in this bill would cost $22 million over the
2006-2010 period.
According to the bureau, hundreds of individual fish
screening and fish passage projects could be constructed under
this bill at an average cost of around $40,000 per project. CBO
estimates that the federal share of the cost of construction of
these fish passage and screening facilities would be $4 million
to $6 million annually over the 2006-2010 period. This estimate
assumes that the bureau's efforts under the bill during the
next several years would be limited to projects identified
within the Federal Columbia River Power System, where the
bureau currently has obligations under the Endangered Species
Act. The bureau, however, would have the authority to
participate in additional projects throughout the Columbia
River Basin in order to meet any future obligations under the
Endangered Species Act that have not yet been determined.
Intergovernmental and private-sector impact: S. 232
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Julie Middleton.
Impact on State, Local, and Tribal Governments: Marjorie
Miller. Impact on the Private Sector: Selena Caldera.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 232. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 232, as ordered reported.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the Subcommittee hearing on S. 1307 in the 108th Congress,
before the Committee adopted an amendment in the nature of a
substitute, follows:
Statement of John W. Keys, III, Commissioner, Bureau of Reclamation
Madam Chair and Members of the Subcommittee, I am John
Keys, Commissioner of the Bureau of Reclamation (Reclamation).
I am pleased to be here today to present the Department of the
Interior's (Department) views on S. 1307, which would authorize
the Secretary of the Interior, acting through the Bureau of
Reclamation, to assist in the implementation of fish passage
and screening facilities at non-federal water projects. As
discussed more fully below, the Administration could support
passage of this bill with the suggested modifications.
Let me begin by saying that the Subcommittee is aware of
the tremendous effort currently underway in the Pacific
Northwest to address the needs of the many salmon and steelhead
species listed as threatened and endangered under the
Endangered Species Act (ESA). Congress has provided significant
support to these efforts by providing authority and funding to
numerous federal agencies to address the needs of the various
life stages of these species.
Among these efforts is a Biological Opinion issued by the
National Marine Fisheries Service (now NOAA Fisheries) in
December 2000 concerning the operation of the Federal Columbia
River Power System (FCRPS) of the Columbia River. The FCRPS
includes 14 major dams on the Columbia and Snake Rivers
operated as an integrated system by the U.S. Army Corps of
Engineers and Reclamation for flood control and hydropower
generation. The Bonneville Power Administration transports and
markets the power generated by the system. As required by
section 7 of the ESA, these three action agencies have
consulted with NOAA Fisheries on the operation of the FCRPS.
In 2000, NOAA Fisheries found that the operation and
configuration of the hydropower system could not be modified
enough to prevent jeopardy to 8 of the 12 listed anadromous
species affected by the system. Consequently, to avoid
jeopardy, NOAA Fisheries identified a reasonable and prudent
alternative which included numerous actions that could improve
the survival of those species in what are known as the other
``H's''-harvest, hatcheries and habitat. Among the actions
recommended to Reclamation is a habitat initiative to improve
tributary spawning and rearing conditions by working with
private parties to screen diversions and to provide fish
passage at non-federal water diversion structures. Screen and
passage projects provide near-term benefits. There is an
immediate benefit to the species by reducing fish mortality and
providing access to better tributary migration, spawning, and
rearing habitat. Improved adult access to tributary habitat
produces more juveniles, and juveniles enjoy generally higher
survival rates in the first spawning season in which these
projects are in place.
Reclamation currently has the authority to provide
engineering design and environmental compliance assistance to
the owners of non-federal water diversion facilities, but lacks
the authority to fund the construction of fish screens and
passage at such facilities. In its Findings and Commitments on
the 2000 FCRPS Biological Opinion, Reclamation agreed to seek
such authority from the Congress. The Administration requested
this authority last year in a proposal that was provided to
Congress. Although S. 1307 would not provide habitat
restoration authority as requested in the Administration's
proposal, it does provide much of the same authority as that
proposed bill.
The need for this authority has been highlighted in the
ongoing litigation concerning the FCRPS Biological Opinion. In
May of this year, the U.S. District Court for the District of
Oregon ruled that the 2000 Biological Opinion is flawed because
some anticipated future actions by federal agencies are not
reasonably certain to occur. Reclamation's lack of authority to
fund the construction of needed screen and migration barrier
projects on non-federal facilities falls within this category.
This deficiency would be eliminated by the passage of S. 1307.
S. 1307 would also provide Reclamation with the authority
to fund such screening and passage projects should they be
necessary in order for the non-FCRPS Reclamation projects
within the Columbia River Basin in the States of Washington and
Oregon to comply with section 7(a)(2) of the ESA. At the
request of Reclamation water users in Idaho, Reclamation
projects in the Snake River Basin would not be included under
this authority. A further provision of S. 1307 specifies that
the authority would only be utilized when Reclamation
determines that it would enable the agency to meet its
obligations under section 7 of the ESA. The Administration
supports these provisions.
The legislation would also confirm that the ownership of
non-federal projects and land, operation and maintenance
responsibilities for those projects, and their affiliated water
rights as defined by state water law, shall remain with the
private owner. Moreover, section 5 of the bill specifies that
these screen and fish passage projects are not Reclamation
projects subject to federal reclamation law. We support these
limitations as well.
We note that owners of the non-federal projects receiving
assistance under this legislation will benefit from bringing
their facilities into compliance with the ESA. It is
appropriate to require some degree of cost sharing from those
individuals who may substantially benefit from these actions.
We strongly encourage the Subcommittee to consider a cost-share
requirement of 35 percent, including the value of in-kind
services.
In conclusion, if enacted, S. 1307 would provide
Reclamation with much needed authority and flexibility in
helping us comply with the ESA by avoiding jeopardy to
endangered and threatened salmon species. We urge the
Subcommittee to act expeditiously on this bill and to include
an appropriate cost share provision. We stand ready to work
with the Subcommittee in that regard.
Madam Chair, this concludes my testimony. I welcome any
questions that you or Members of the Subcommittee may have.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 232, as ordered
reported.