S 2247 — Upper Colorado and San Juan River Basins Endangered Fish Recovery Programs Reauthorization Act of 2023

changes in existing law made by 
the bill S. 2247, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

 Public Law 106-392

 AN ACT 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.

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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 and threatened 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 extended by the Extension 
 of the Cooperative Agreement dated December 6, 2001, 
 and the 1992 Cooperative Agreement to implement the San 
 Juan River Recovery Implementation Program dated 
 October 21, 1992, and as they may be amended] for the 
 Recovery Implementation Program for Endangered Species 
 in the Upper Colorado River Basin dated September 29, 
 1987, and the 1992 Cooperative Agreement for the San 
 Juan River Basin Recovery Implementation Program dated 
 October 21, 1992, as the agreements may be amended and 
 extended 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, rehabilitation, and repair 
 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 or threatened fishes, those for the 
 restoration of floodplain habitat or fish passage, 
 those for control or supply of instream flows, those 
 for protection of critical habitat, those for 
 preventing entrainment of fish in water diversions, and 
 those for the [removal or translocation] control 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] Recovery Implementation Programs.
 (9) The term ``recovery actions other than capital 
 projects'' includes short-term [leases and agreements] 
 acquisitions for interests in land, water, and 
 facilities; the reintroduction or augmentation of 
 endangered or threatened fish stocks; and the removal, 
 translocation, or other control of nonnative fishes, as 
 approved under the Recovery Implementation Programs.
 (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 pursuant to the 
 Recovery Implementation Program for Endangered Species 
 in the Upper Colorado River Basin 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, $88,000,000 to 
undertake capital projects to carry out the purposes of this 
Act. Such funds]
 (1) Authorization.--
 (A) In general.--Subject to subparagraph (B), 
 there is authorized to be appropriated to the 
 Secretary for use by the Bureau of Reclamation 
 to undertake capital projects to carry out the 
 purposes of this Act $50,000,000 for the period 
 of fiscal years 2024 through 2031.
 (B) Annual adjustment.--For each of fiscal 
 years 2025 through 2031, the amount authorized 
 to be appropriated under subparagraph (A) shall 
 be annually adjusted to reflect widely 
 available engineering cost indices applicable 
 to relevant construction activities.
 (C) Nonreimbursable funds._Amounts made 
 available pursuant to subparagraph (A)'' 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 2024] Programs shall expire in fiscal 
 year 2031 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 2024 
 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 
$209,000,000 of which--
 [(1) costs shall not exceed $184,000,000 for the 
 Recovery Implementation Program for Endangered Fish 
 Species in the Upper Colorado River Basin through 
 fiscal year 2024; and
 [(2) costs shall not exceed $25,000,000 for the San 
 Juan River Recovery Implementation Program through 
 fiscal year 2024.
[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 within the Upper 
Division States, pursuant to agreements that provide for the 
contributions to be used for 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 2-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 and the Elkhead Reservoir enlargement in Colorado. 
Such costs shall be considered as non-Federal contributions, 
not to exceed $87,000,000.]
 (b) Non-Federal Contributions to Capital Projects.--The 
Secretary, acting through the Bureau of Reclamation, may accept 
contributed funds, interests in land and water, or other 
contributions from the Upper Division States, political 
subdivisions of the Upper Division States, or individuals, 
entities, or organizations within the Upper Division States, 
pursuant to agreements that provide for the contributions to be 
used for capital projects costs.
 [(d)] (c) Base Funding.--
 (1) Authorization of appropriations.--
 (A) In general.--There is authorized to be 
 appropriated to the Secretary to be used by the 
 Bureau of Reclamation to make the annual base 
 funding contributions to the Recovery 
 Implementation Programs [$10,000,000 for each 
 of fiscal years 2020 through 2024] $92,040,000 
 for the period of fiscal years 2024 through 
 2031.
 (B) Nonreimursable funds.--The funds 
 contributed to the Recovery Implementation 
 Programs under subparagraph (A) shall be 
 considered a nonreimbursable Federal 
 expenditure.
 (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] 
 $61,100,000 for the period of fiscal years 2024 to 
 2031. For the San Juan River Basin Recovery 
 Implementation Program, such contributions shall not 
 exceed [$2,000,000 per year] $30,940,000 for the period 
 of fiscal years 2024 through 2031. The Secretary shall 
 adjust such amounts for inflation [in fiscal years 
 commencing after the enactment of this Act] for fiscal 
 year 2024 and each fiscal year thereafter. 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.]
 (3) Federal contributions to annual base funding.--
 (A) In general.--For each of fiscal years 
 2024 through 2031, the Secretary, acting 
 through the Bureau of Reclamation, may accept 
 funds from other Federal agencies, including 
 power revenues collected pursuant to the Act of 
 April 11, 1956 (commonly known as the 
 ``Colorado River Storage Project Act'') (43 
 U.S.C. 620 et seq.).
 (B) Availability of funds.--Funds made 
 available under subparagraph (A) shall be 
 available for expenditure by the Secretary, as 
 determined by the contributing agency in 
 consultation with the Secretary.
 (C) Treatment of funds.--Funds made available 
 under subparagraph (A) shall be treated as 
 nonreimbursable Federal expenditures.
 (D) Treatment of power revenues.--Any power 
 revenues accepted under subparagraph (A) shall 
 be treated as having been repaid and returned 
 to the general fund of the Treasury.
 (4) Non-federal contributions to annual base 
 funding.--The Secretary, acting through the Bureau of 
 Reclamation, may accept contributed funds from the 
 Upper Division States, political subdivisions of the 
 Upper Division States, or individuals, entities, or 
 organizations within the Upper Division States, 
 pursuant to agreements that provide for the 
 contributions to be used for annual base funding.
 (5) Replacement power.--Contributions of funds made 
 pursuant to this subsection shall not include the cost 
 of replacement power purchased to offset modifications 
 to the operation of the Colorado River Storage Project 
 to benefit threatened or endangered fish species under 
 the Recovery Implementation Programs.
 [(e)] (d) 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)] (e) 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)] (f) 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 or threatened 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)] (g) 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 the time period for the 
respective Cooperative Agreement is extended to conform with 
this Act], as amended or extended.
 [(i)] (h) Limitation on Indirect Cost Recovery Rate.--The 
indirect cost recovery rate for any transfer of funds to the 
U.S. Fish and Wildlife Service from another Federal agency for 
the purpose of funding any activity associated with the [Upper 
Colorado River Endangered Fish Recovery Program or the San Juan 
River Basin Recovery Implementation Program] Recovery 
Implementation Programs shall not exceed three percent of the 
funds transferred. In the case of a transfer of funds for the 
purpose of funding activities under both programs, the 
limitation shall be applied to the funding amount for each 
program and may not be allocated unequally to either program, 
even if the average aggregate indirect cost recovery rate would 
not exceed three percent.
 [(j)] (i) Report.--
 (1) In general.--Not later than September 30, [2022] 
 2030, the Secretary shall submit to the appropriate 
 committees of Congress a report that--
 (A) describes the accomplishments of the 
 Recovery Implementation Programs;
 (B) identifies--
 (i) as of the date of the report, the 
 listing status under the Endangered 
 Species Act of 1973 (16 U.S.C. 1531 et 
 seq.) of the Colorado pikeminnow, 
 humpback chub, razorback sucker, and 
 bonytail; and
 (ii) as of September 30, [2024] 2031, 
 the projected listing status under that 
 Act of each of the species referred to 
 in clause (i);
 (C)(i) identifies--
 (I) the total expenditures 
 and the expenditures by 
 categories of activities by the 
 Recovery Implementation 
 Programs during the period 
 beginning on the date on which 
 the applicable Recovery 
 Implementation Program was 
 established and ending on 
 September 30, [2022] 2030; and
 (II) projected expenditures 
 by the Recovery Implementation 
 Programs during the period 
 beginning on October 1, [2022] 
 2030, and ending on September 
 30, [2024] 2031; and
 (ii) for purposes of the expenditures 
 identified under clause (i), includes a 
 description of--
 (I) any expenditures of 
 appropriated funds;
 (II) any power revenues;
 (III) any [contributions by 
 the States, power customers, 
 Tribes, water users, and 
 environmental organizations] 
 non-Federal contributions; and
 (IV) any other sources of 
 funds for the Recovery 
 Implementation Programs; and
 (D) describes--
 (i) any activities to be carried out 
 under the Recovery Implementation 
 Program after September 30, [2024] 
 2031; and
 (ii) the projected cost of the 
 activities described under clause (i).
 (2) Consultation required.--The Secretary shall 
 consult with the participants in the Recovery 
 Implementation Programs in preparing the report under 
 paragraph (1).

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