[DOCID: f:sr321.110]
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Calendar No. 673
110th Congress Report
SENATE
2d Session 110-321
======================================================================
PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM AND PATHFINDER
MODIFICATION AUTHORIZATION ACT
_______
April 10, 2008.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 1462]
The Committee on Energy and Natural Resources, to which was
referred the Act (H.R. 1462) to authorize the Secretary of the
Interior to participate in the implementation of the Platte
River Recovery Implementation Program for Endangered Species in
the Central and Lower Platte River Basin and to modify the
Pathfinder Dam and Reservoir, having considered the same,
reports favorably thereon with amendments and recommends that
the Act, as amended, do pass.
The amendments are as follows:
1.On page 3, strike line 4 and insert the following:
Reservoir, in accordance with the requirements described in
title II.
2. On page 5, line 9, strike ``title'' and insert ``Act''.
3. On page 5, line 21, strike ``participating''.
4. On page 7, line 15, strike ``title'' and insert ``Act''.
5. On page 9, line 8, strike ``The approximately'' and
insert ``Provided that all of the conditions described in
section 203 are first met, the approximately''.
6. At the end, add the following:
``SEC. 203. CONDITIONS PRECEDENT.
``The actions and water uses authorized in sections 201(a)(1)
and 202 shall not occur until each of the following actions
have been completed:
``(1) Final approval from the Wyoming legislature for
the export of Project water to the State of Nebraska
under the laws (including regulations) of the State of
Wyoming.
``(2) Final approval in a change of water use
proceeding under the laws (including regulations) of
the State of Wyoming for all new uses planned for
Project water. Final approval, as used in this
paragraph, includes exhaustion of any available review
under State law of any administrative action
authorizing the change of the Pathfinder Reservoir
water right''.
PURPOSE OF THE MEASURE
The purpose of H.R. 1462 is to authorize the Secretary of
the Interior to participate in the implementation of the Platte
River Recovery Implementation Program for Endangered Species in
the Central and Lower Platte River Basin and to modify the
Pathfinder Dam and Reservoir.
BACKGROUND AND NEED
The Central Platte River in Nebraska is critical habitat
for the endangered whooping crane, interior least tern, and
pallid sturgeon, as well as the threatened piping plover. In
the early 1990s, it became apparent that the critical habitat
for these endangered and threatened species was affected by
water use not only in Nebraska, but also in the upstream states
of Wyoming and Colorado. Rather than let the U.S. Fish and
Wildlife Service unilaterally establish a water supply goal for
the critical habitat and limit existing depletions of water,
Wyoming, Nebraska, and Colorado became interested in developing
a program to ensure compliance with the Endangered Species Act
while maintaining water uses in those states.
On July 1, 1997, the Governors of Nebraska, Wyoming, and
Colorado, and the Secretary of the Interior signed the
``Cooperative Agreement for Platte River Research and Other
Efforts Relating to Endangered Species Habitat along the
Central Platte River, Nebraska.'' Thereafter, a Governance
Committee made up of representatives from the three states, the
federal government, environmental organizations, and water
users formulated the details of a proposed Platte River
Recovery Implementation Program (Program). In 2006, the U.S.
Bureau of Reclamation released a Final Programmatic
Environmental Impact Statement and the U.S. Fish and Wildlife
Service issued a Final Biological Opinion. The Secretary of the
Interior then signed the Record of Decision supporting
implementation of the Program. Following, in late 2006, each of
the three Governors and the Secretary signed a Cooperative
Agreement wherein they agreed to implement the Program. The
Program, which is contingent upon the authorization associated
with H.R. 1462, and funding by Congress and by the states,
officially commenced on January 1, 2007.
LEGISLATIVE HISTORY
H.R. 1462 was introduced by Rep. Mark Udall on March 9,
2007, and referred to the Committee on Natural Resources.
Representatives Barbara Cubin, Diana DeGette, Jeff Fortenberry,
Ed Perlmutter, John Salazar, Adrian Smith, and Lee Terry are
co-sponsors. Under suspension of the rules, H.R. 1462 passed
the House of Representatives on October 22, 2007 and was
referred to the Committee on Energy and Natural Resources.
A companion measure, S. 752, was introduced by Senator Ben
Nelson for himself and Senators Allard, Hagel, and Salazar. The
Subcommittee on Water & Power held a hearing on S. 752 on April
25, 2007. (S. Hrg. 110-86.) At its business meeting on January
30, 2008, the Committee on Energy and Natural Resources ordered
H.R. 1462 favorably reported as amended.
COMMITTEE RECOMMENDATION
The Committee on Energy and Natural Resources, in open
business session on January 30, 2008, by voice vote of a quorum
present, recommends that the Senate pass H.R. 1462, if amended
as described herein.
COMMITTEE AMENDMENT
During the consideration of H.R. 1462, the Committee
adopted several amendments to improve the bill. The most
significant amendment makes clear that the authorization to
modify Pathfinder Dam and Reservoir in Wyoming is dependent on
conditions precedent that are set forth in a new section 203 of
the bill. Another amendment clarifies that the Secretary is
authorized to carry out a broad range of actions to carry out
the Act. The final amendment clarifies that a disclaimer
regarding the existence of Federal water rights applies to the
entire Act.
SECTION-BY-SECTION ANALYSIS
Section 1 provides the short title and table of contents of
the Act.
Section 2 provides the purposes of the Act.
Section 101 defines the terms used in Title I of the bill.
Section 102(a) authorizes the Secretary to participate in
the Platte River Recovery Implementation Program and carry out
projects and activities designated for implementation.
Section 102(b) authorizes the Secretary to enter into
agreements and contracts, acquire property interests from
willing sellers, transfer any acquired interests, and accept or
provide grants in carrying out the Act.
Section 103(a) provides that the States shall contribute
not less than 50 percent of the overall cost of the Program.
Section 103(b) defines the contributions that will
constitute the States' share required under the Program.
Section 103(c) authorizes the use of in-kind contributions
under specific conditions.
Section 104 authorizes the Program to be amended under
specific conditions.
Section 105(a) limits the application of the Reclamation
Reform Act as a result of Program implementation.
Section 105(b) provides that the Act does not create
Federal water rights, nor requires the grant of water rights to
Federal entities.
Section 106(a) authorizes $157,140,000 in appropriations
(subject to adjustment) to carry out Title I.
Section 106(b) declares that expenditure of the authorized
appropriations shall be on a nonreimbursable basis.
Section 106(c) specifies the formula for adjusting
authorized appropriations on an annual basis.
Section 106(d) states that any unexpended funds remaining
at the end of each fiscal year, shall carry over for Program
implementation activities.
Section 107 terminates the authority for the Program on
September 30, 2020.
Section 201(a) authorizes the Secretary of the Interior to
modify Pathfinder Dam and Reservoir and enter into agreements
with the State of Wyoming as described.
Section 201(c) specifies that no Federal appropriations are
needed to modify Pathfinder Dam.
Section 202 provides for the authorized uses of recaptured
water from the modified Pathfinder Reservoir.
Section 203 describes the conditions precedent to modifying
Pathfinder Dam and Reservoir and using the recaptured water.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
H.R. 1462--Platte River Recovery Implementation Program and Pathfinder
Modification Authorization Act
Summary: H.R. 1462 would authorize the Secretary of the
Interior to implement a program to aid in the recovery of
certain species in the Platte River basin that are listed as
either threatened or endangered under the Endangered Species
Act (ESA). The act also would authorize the Secretary to modify
the Pathfinder Dam and Reservoir in Wyoming.
CBO estimates that implementing H.R. 1462 would cost $66
million over the 2009-2013 period, assuming appropriation of
the necessary amounts. Enacting the legislation would not
affect direct spending or revenues.
H.R. 1462 contains no intergovemental 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 H.R. 1462 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2009 2010 2011 2012 2013
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level... 12 15 16 16 16
Estimated Outlays............... 7 12 15 16 16
------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted before the end of 2008 and that the
necessary amounts will be appropriated near the start of each
subsequent fiscal year. Estimates of outlays are based on
historical spending patterns for similar activities.
In 1997, the Department of the Interior (DOI) signed a
cooperative agreement with Colorado, Wyoming, and Nebraska to
develop a program for wildlife protection along the Platte
River. In late 2006, the Secretary and the governor of each
state signed the Platte River Recovery Implementation Program.
The program aims to restore and conserve the habitat of four
threatened and endangered species in the Platte River basin.
The program will be carried out in incremental stages.
Title I would authorize the Secretary to participate in the
first increment of the program in cooperation with Nebraska,
Wyoming, and Colorado. Based on information provided by the
Bureau of Reclamation, CBO estimates that implementing the
recovery program in title I would cost $66 million over the
2009-2013 period and an additional $108 million thereafter. DOI
would use the appropriations to acquire land and water
interests and undertake habitat restoration and other
activities deemed necessary by the Secretary.
Title II of the act would authorize the Secretary to modify
the Pathfinder Dam and Reservoir in Wyoming. The Secretary
would be authorized to enter into agreements with the state of
Wyoming to implement those modifications. The state would be
responsible for all costs of the modifications. Hence, CBO
estimates that the federal government would incur no
significant costs to implement title II.
Intergovernmental and private-sector impact: H.R. 1462
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Any costs to states to match federal
assistance authorized by the act would be incurred voluntarily.
Previous CBO Estimate: On October 19, 2007, CBO transmitted
a cost estimate for H.R. 1462 as ordered reported by the House
Committee on Natural Resources on October 10, 2007. The total
costs of the two versions of the legislation are identical.
Estimate prepared by: Federal Costs: Tyler Kruzich; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private-Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy 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 H.R. 1462. 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 H.R. 1462, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
H.R. 1462, as reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined by rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Bureau of Reclamation at the
Senate Committee on Energy and Natural Resources subcommittee
hearing on companion measure, S. 752 follows:
Statement of Robert Johnson, Commissioner, U.S. Bureau of Reclamation
Mr. Chairman and members of the subcommittee, I am Robert
Johnson, Commissioner of the Bureau of Reclamation. I
appreciate the opportunity to appear before you today to
discuss S. 752, the Platte River Recovery Implementation
Program and the Pathfinder Modification Authorization Act. The
Department supports passage of S. 752.
The Platte River originates in the mountains of Wyoming and
Colorado and, as it flows through Nebraska, provides important
habitat for the whooping crane, piping plover, interior least
tern, and pallid sturgeon (target species) that are listed as
threatened or endangered under the Endangered Species Act
(ESA). In 1997, the States of Colorado, Nebraska, and Wyoming
and the Department of the Interior signed a Cooperative
Agreement to develop a basin-wide program that would provide
measures to assist in the recovery of these four target species
in the Platte River in Nebraska. In late 2006, the Platte River
Recovery Implementation Program (Program) Agreement was signed
by the Governors of the three States and the Secretary of the
Interior, allowing for Program implementation to begin January
1, 2007. The Program assists in the conservation and recovery
of the target species in the Platte River basin and implements
aspects of the recovery plans for these species, thereby
providing compliance under the Endangered Species Act (ESA) for
existing water related activities and certain new water-related
activities in the Platte River Basin in Colorado, Wyoming, and
Nebraska.
Title I of S. 752 provides authorization for the Secretary
of the Interior, through the Bureau of Reclamation, to fully
implement the Program. It also provides Reclamation with
authority to appropriate non-reimbursable funds for the
Program. Reclamation, in cooperation with the Governance
Committee, will implement the Program in incremental stages
with the first increment being a period of 13 years. Pursuant
to the Program Agreement, the Federal cost share for the first
increment is $157 million (2005 dollars), plus indexing. The
State cost-share is the same amount, to be provided from the
three State Parties to the Program Agreement.
Pre-implementation activities, such as forming the new
Governance Committee, initiating the selection of the Executive
Director, and various administrative functions have already
begun. Federal activities up to this point have been authorized
under existing law encouraging the Department of the Interior
to work with States to promote habitat protection and the
protection of species. Under the ESA, the Program can initiate
monitoring and research activities; however, actual water and
land acquisitions cannot be initiated using Federal funds prior
to enactment of this legislation. Upon enactment of this
authorizing legislation, Program land and water acquisitions
will begin. It is critical that acquisitions begin early in the
Program to allow sufficient time to evaluate the biological
response and effectiveness of the Program's recovery measures.
Title II authorizes the Secretary, through the Bureau of
Reclamation, to modify Pathfinder Dam and Reservoir and enter
into agreements with the State of Wyoming to implement this
modification. No Federal funds are required for this activity.
In accordance with our commitment to cooperative
conservation, the Department of the Interior seeks to encourage
the efforts of States and local communities to play active
roles in managing the resources they depend on for their
livelihoods. The Platte River Recovery Implementation Program
that would be authorized under this Act is an example of a
partnership combining Federal and Non-Federal funding in an
ongoing effort to recover endangered species while also meeting
the water needs of local communities, irrigators, power
generation, and the environment. Enactment of this legislation
provides an opportunity not only to meet ESA requirements using
a basin-wide, cooperative, and scientific approach, but to do
so in a manner that protects existing water uses and allows for
future water uses in the Platte River Basin. For these reasons,
the Administration supports S. 752.
Mr. Chairman, this completes my statement. I am happy to
answer any questions 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 H.R. 1462, as
ordered reported.
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