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Smith's Senate Bill Allows Rec Bureau to Fund Off-Site Work by CBB Staff Columbia Basin Bulletin - June 27, 2003

A new Senate bill would enable the Bureau of Reclamation to pay for fish screens and fish passage improvements on non-federal irrigation facilities in the Northwest as off-site mitigation for the Columbia-Snake federal power system.

Legislation to authorize the federally funded, voluntary program was introduced last week by Sen. Gordon Smith, R-Ore. It is similar to a proposal made by the Bush administration in October.

Pacific Northwest regional Bureau of Reclamation officials said obtaining the authority is a necessity for the agency to implement the 2000 salmon recovery plan and biological opinion for a dozen federal dams on the Columbia and lower Snake rivers.

Under current law, the bureau has planned and designed improvements for non-federal diversions and canals that get water from federal reclamation projects in the basin. But without the added authority, it cannot construct them or pay for construction.

The new program, which is included in President Bush's FY2004 budget, would enhance the government's ability to comply with the 2000 Columbia Basin salmon recovery plan and the Endangered Species Act, Smith said.

"It is important to move forward with the reasonable and prudent alternatives, including fish passage improvements," despite a recent federal court ruling that invalidated the 10-year plan for operation of the federal Columbia River power system, Smith said.

Smith noted that the Bush administration is working to address the legal deficiencies in the biological opinion. "I remain committed to working with my colleagues, the Northwest governors, and the administration to keep salmon recovery on track, while preserving the (power system's) multiple benefits for the Pacific Northwest," he said in a statement.

The recovery plan requires agencies to take measures to mitigate for losses of threatened and endangered fish in the Columbia-Snake federal hydropower system by improving fish habitat and survival throughout their range.

Smith said he sought comments from numerous stakeholders in the Pacific Northwest and addressed their concerns in the bill whenever possible.

The bill "largely reflects" the administration's proposal with a couple of major differences, Northwest regional Director William McDonald testified at a Senate hearing this week.

At Idaho irrigators' request, Smith changed the administration's proposal to include reclamation projects in the Snake River Basin as part of the off-site mitigation program. Smith's bill excludes the Snake Basin. But the change would not prevent the bureau from funding non-federal fish passage and screening projects in the Snake Basin if the bureau determined such projects would mitigate for the Columbia-Snake power system.

The exclusion of Snake Basin reclamation projects in the bill language reflects the fact that they are not part of the Columbia and lower Snake power system mitigation program, Idaho Water Users Association Director Norm Semanko said.

"There's no reason to lump other bureau projects into the bill. It should be and is a discrete bill dealing with" the federal power system downstream in Oregon and Washington, Semanko said.

Four federal dams in eastern Washington are located on the lower Snake, but they are Army Corps of Engineers facilities. Upper Snake River basin reclamation projects are covered by their own biological opinion, and unlike the Columbia-Snake power system, do not pose jeopardy to endangered species, Semanko said.

He noted the legislation would still allow the bureau to pay for non federal fish improvements to irrigation facilities in the Snake Basin if it decided they would mitigate for the downstream power system. "Nothing in the bill excludes those areas" from receiving funding, he said.

Semanko said no salmon passage or screening improvements would be done in the upper Snake River anyway. Construction of major private power dams in Hells Canyon in the 1950s exterminated salmon runs that spawned in southwestern and south central Idaho.

Smith also changed the administration's proposal to have the federal government pick up the entire cost of non-federal fish passage and screening projects. He rejected a cost-sharing formula that would require non-federal owners to provide 35 percent of the funding. The formula generated substantial discussion about whether funding from the Bonneville Power Administration and other would be allowed to provide the non-federal match.

McDonald told the Senate subcommittee on Fisheries, Wildlife and Water on Tuesday that unless the bureau gets the authority to pay for non federal projects this year, it cannot accomplish the work of assisting with fish migration passage and screening of non-federal water diversion structures.

"(Our) ability to fully accomplish this work will be hampered unless we do receive the statutory authority to construct, or provide financial assistance to others to construct, fish passage and screening on non federally owned diversion structures beginning with fiscal year 2004," which starts Oct. 1, McDonald said.

Approval of the legislation would reduce legal uncertainty about the salmon recovery plan's reliance on non-federal measures, McDonald said.

U.S. District Judge James A. Redden in May ruled that the biological opinion is illegal partly because it anticipates actions that are not "reasonably certain" to occur.

In the meantime, the Bonneville Power Administration, state agencies in Idaho, Oregon, and Washington and others are providing some funding for the construction of improvements at non-federal water diversion projects.

In his FY2004 budget request to Congress, President Bush is seeking $19 million for Bureau of Reclamation implementation measures, up from $15 million last year. That increase assumes Congress will enact the new legislative authority. Most of the increase would go to fund habitat improvements, including fish passage and screening.

Fish passage and screening facilities under the bill would include:

• ladders, collection devices and other facilities to enable fish to pass through, over or around water diversion structures;
• facilities and other constructed works that modify, consolidate, or replace water diversion structures to achieve fish passage;
• screens and other devices that reduce or prevent entrapment diversion of fish in water delivery and distribution systems;
• other projects designed to provide for or improve fish passage or reduce entrapment while maintaining water deliveries

All non-federal facilities that receive water from federal reclamation projects would be eligible. The recipients of the assistance could include tribes, local governmental and quasi-governmental entities, private profit and non-profit organizations, and individuals.

The bill directs the Bureau of Reclamation to comply with state water laws and to coordinate with the Northwest Power Planning Council, state agencies and Indian tribes in carrying out the program.