To authorize the Secretary of the Army and the Secretary of the Interior to establish a program to improve water management and contribute to the recovery of endangered species in the Middle Rio Grande, New Mexico, and for other purposes.

July 28, 2005

Mr. DOMENICI (for himself and Mr. BINGAMAN) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

To authorize the Secretary of the Army and the Secretary of the Interior to establish a program to improve water management and contribute to the recovery of endangered species in the Middle Rio Grande, New Mexico, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Middle Rio Grande Endangered Species Collaborative Program Act'.

SEC. 2. DEFINITIONS.

In this Act:

(1) COLLABORATIVE PROGRAM- The term `Collaborative Program' means the Middle Rio Grande Endangered Species Collaborative Program established under section 3(a).

(2) EXECUTIVE COMMITTEE- The term `Executive Committee' means the Executive Committee established under section 4(c).

(3) INTERESTS IN LAND AND WATER- The term `interests in land and water' includes purchases, leases, easements, and agreements to provide water storage, land, or water that are obtained from willing sellers, lessors, or contributors in compliance with applicable Federal, State, or tribal laws.

(4) MIDDLE RIO GRANDE-

(A) IN GENERAL- The term `Middle Rio Grande' means the headwaters of the Rio Chama and the Rio Grande, including all tributaries, from the State line between Colorado and New Mexico downstream to the elevation corresponding with the spillway crest of Elephant Butte Dam at 4,457.3 feet mean sea level.

(B) EXCLUSION- The term `Middle Rio Grande' excludes the land area reserved for the full pool of the Elephant Butte Reservoir.

(5) MIDDLE RIO GRANDE CONSERVANCY DISTRICT- The term `Middle Rio Grande Conservancy District' means the political subdivision of the State of that name, created in 1925.

(6) PROJECT-

(A) IN GENERAL- The term `project' means a scientific or management study, a planning, design, permitting, construction, operations, maintenance, or replacement activity, or the acquisition of interests in land or water.

(B) INCLUSIONS- The term `project' includes--

(i) a project begun but not completed by the Endangered Species Collaborative Program before the date of enactment of this Act; and

(ii) a project recommended by the Executive Committee after the date of enactment of this Act that carries out the purposes described in section 3(b).

(7) RIO GRANDE COMPACT- The term `Rio Grande Compact' means the Rio Grande Compact--

(A) for which Congress provided consent under the Act of May 31, 1939 (53 Stat. 785, chapter 155); and

(B) that was ratified by the States of Colorado, New Mexico, and Texas.

(8) SECRETARY- The term `Secretary' means the Secretary of the Army, acting through the Chief of Engineers.

(9) SIGNATORY MEMBER- The term `signatory member' means any Federal, State, or municipal agency, tribe, or public or private organization that has signed the memorandum of agreement described in section 4(c)(1)(C).

(10) SILVERY MINNOW- The term `silvery minnow' means the species Hybognathus amarus, commonly known as the Rio Grande silvery minnow, a fish listed as an endangered species, as described in the notice entitled `Final Rule to List the Rio Grande Silvery Minnow as an Endangered Species' (59 Fed. Reg. 36988 (July 20, 1994)).

(11) STATE- The term `State' means the State of New Mexico.

(12) TRIBE- The term `tribe' means an Indian pueblo or tribe that--

(A) occupies land in the Middle Rio Grande; and

(B) is included on the list of federally recognized tribes published by the Secretary of the Interior in accordance with section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).

(13) WILLOW FLYCATCHER- The term `willow flycatcher' means the species Empidonax traillii extimus, commonly known as the southwestern willow flycatcher, a migratory bird listed as an endangered species, as described in the notice entitled `Final Rule Determining Endangered Status for the Southwestern Willow Flycatcher' (60 Fed. Reg. 10694 (February 27, 1995)).

SEC. 3. COLLABORATIVE PROGRAM.

(a) Establishment- The Secretary, in collaboration with the Secretary of the Interior, shall establish the Middle Rio Grande Endangered Species Collaborative Program in accordance with section 4.

(b) Purposes- The purposes of the Collaborative Program shall be--

(1) to carry out a long-term plan, including projects to protect, and promote recovery of, the silvery minnow and willow flycatcher in the Middle Rio Grande;

(2) to ensure compliance with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) while maintaining water use in the Middle Rio Grande in compliance with applicable law;

(3) to support improved water management;

(4) to allow continued water development;

(5) to benefit overall ecological integrity;

(6) to promote cooperation and collaboration in implementation of protection and recovery activities between Federal and non-Federal entities;

(7) to coordinate Federal actions that promote protection and recovery of the silvery minnow and willow flycatcher; and

(8) to establish a scientific basis for implementation of activities through recovery plans to ensure protection and recovery of the silvery minnow and willow flycatcher.

SEC. 4. COLLABORATIVE PROGRAM STRUCTURE.

(a) Repeal- Section 209 of the Energy and Water Development Appropriations Act, 2004 (Public Law 108-137; 117 Stat. 1850) is repealed.

(b) Establishment- The Collaborative Program shall consist of an Executive Committee, a Program Implementation Team, and working groups.

(c) Executive Committee-

(1) IN GENERAL- The Secretary, in collaboration with the Secretary of the Interior shall--

(A) not later than 180 days after the date of enactment of this Act, establish an Executive Committee consisting of Federal and non-Federal entities described in paragraph (2) to--

(i) provide guidance to the Program Implementation Team to develop and approve a long-term plan to carry out the purposes of the Collaborative Program;

(ii) coordinate Collaborative Program projects for the recovery of the silvery minnow and the willow flycatcher with other Federal and non-Federal activities in the Middle Rio Grande to achieve the greatest effect and limit unnecessary duplication of efforts to the maximum extent practicable;

(iii) create, assign, and oversee tasks of the Program Implementation Team and working groups as necessary to implement a long-term plan and otherwise accomplish the purposes of the Collaborative Program;

(iv) develop multiyear budget priorities and present funding requests to the Corps of Engineers, the Bureau of Reclamation, the United States Fish and Wildlife Service, other Federal agencies, and non-Federal entities; and

(v) review work products undertaken by the Collaborative Program, including development of plans, budgets, reports, and requests for proposals;

(B) consider decisions made by 3/4 of a quorum as the recommendation to be carried out under the Collaborative Program;

(C) develop, consistent with this Act, a memorandum of agreement describing--

(i) the goals of the Collaborative Program;

(ii) the responsibilities of the participants to contribute to the success of the Collaborative Program; and

(iii) the administrative rules, bylaws, and agreements governing Collaborative Program participation; and

(D) in cooperation with the members of the Executive Committee, develop bylaws governing the operations of the Executive Committee.

(2) MEMBERSHIP-

(A) IN GENERAL- Subject to subparagraph (B), the Executive Committee shall be composed of--

(i) 1 permanent voting member representing the Bureau of Reclamation, appointed by the Secretary of the Interior;

(ii) 1 permanent voting member representing the United States Fish and Wildlife Service, appointed by the Secretary of the Interior;

(iii) 1 permanent voting member representing the Corps of Engineers, appointed by the Secretary;

(iv) upon invitation by the Secretary, other voting members who have signed the memorandum of agreement described in paragraph (1)(C), representing any of--

(I) the State of New Mexico Interstate Stream Commission;

(II) the State of New Mexico Department of Game and Fish;

(III) the New Mexico Attorney General;

(IV) the Pueblo of Santo Domingo;

(V) the Pueblo of Sandia;

(VI) the Pueblo of Isleta;

(VII) the Pueblo of Santa Ana;

(VIII) the Middle Rio Grande Conservancy District;

(IX) the Albuquerque-Bernalillo County Water Authority;

(X) an organization that represents a significant portion of the environmental community; and

(XI) an organization that represents a significant portion of the farming community;

(v) the non-Federal cochairperson elected under paragraph (4); and

(vi) upon unanimous recommendation of the existing members, members representing any additional organizations that sign the memorandum of agreement described in paragraph (1)(C).

(B) MEMBERSHIP CAP- The total membership of the Executive Committee shall not exceed 20 members.

(C) QUORUM-

(i) IN GENERAL- Except as provided in clause (ii), 2/3 of the members of the Executive Committee shall constitute a quorum.

(ii) EXCEPTION- For purposes of subparagraphs (A) and (C) of paragraph (4), 2/3 of the non-Federal members of the Executive Committee shall constitute a quorum.

(3) FEDERAL COCHAIRPERSON-

(A) IN GENERAL- The Secretary of the Interior shall select a Federal Cochairperson from the Department of the Interior who shall--

(i) be a nonvoting member of the Executive Committee;

(ii) convene the Executive Committee;

(iii) develop committee agendas;

(iv) call meetings;

(v) schedule votes and other decisionmaking processes; and

(vi) hold the Program Implementation Team accountable for assignments received from the Executive Committee.

(B) REMOVAL- The Federal Cochairperson may be replaced by the Secretary on a vote of no-confidence by 3/4 of a quorum.

(4) NON-FEDERAL COCHAIRPERSON-

(A) IN GENERAL- A non-Federal Chairperson of the Executive Committee shall be elected on approval by 3/4 of a quorum.

(B) DUTIES- The non-Federal Chairperson shall--

(i) be a voting member of the Executive Committee;

(ii) establish the Executive Committee agenda jointly with the Federal Cochairperson; and

(iii) lead meetings in the absence of the Federal Cochairperson.

(C) REMOVAL-

(i) IN GENERAL- The non-Federal Cochairperson may be removed by the Secretary on a vote of no-confidence by 3/4 of a quorum.

(ii) VACANCY- If the non-Federal Chairperson is removed under clause (i), the vacancy shall be filled in accordance with subparagraph (A).

(d) Program Implementation Team-

(1) IN GENERAL- The Secretary shall establish a Program Implementation Team--

(A) administered by a program manager from the Corps of Engineers; and

(B) supported by 1 representative of each entity with membership on the Executive Committee that elects to provide a representative.

(2) ADDITIONAL STAFF- To support the goals of the Collaborative Program, the Secretary of the Interior shall provide staff for the Program Implementation Team from--

(A) the Bureau of Reclamation;

(B) the Bureau of Indian Affairs;

(C) the United States Fish and Wildlife Service; or

(D) any other appropriate agency of the Department of the Interior.

(3) DUTIES- Under the direction of the Executive Committee, the Program Implementation Team shall--

(A) provide administrative support for all Collaborative Program operations;

(B) not later than 1 year after the date of enactment of this Act, prepare a long-term plan to carry out the purposes of the Collaborative Program;

(C) consistent with the long-term plan, prepare annual revisions, annual work plans, budget requests, and activity and fiscal reports;

(D) provide information to the public concerning activities of the Collaborative Program and undertake community outreach;

(E) collaborate with other efforts relating to the protection and recovery of the silvery minnow and willow flycatcher carried out under other Federal programs and non-Federal programs, including--

(i) silvery minnow and willow flycatcher recovery teams under the direction of the United States Fish and Wildlife Service;

(ii) Bosque and ecosystem recovery programs under the United States Fish and Wildlife Service and Corps of Engineers; and

(iii) other related programs;

(F) administer project proposal processes;

(G) administer contracts and grants, except for those contracts and grants assigned to the Bureau of Reclamation;

(H) ensure that all activities undertaken by the Collaborative Program comply with applicable laws; and

(I) undertake such other duties as are assigned by the Executive Committee and necessary to carry out the Collaborative Program.

(e) Working Groups-

(1) IN GENERAL- The Executive Committee may create working groups to--

(A) provide advice to the Executive Committee and the Program Implementation Team; and

(B) implement tasks consistent with the purposes described in section 3(b).

(2) MEMBERSHIP- Working groups established under paragraph (1) may consist of--

(A) members of the Program Implementation Team; and

(B) individuals appointed by, and under the direction of, the Program Implementation Team, including--

(i) representatives appointed by the Executive Committee;

(ii) signatory members; or

(iii) individuals contracted by the Program Implementation Team.

SEC. 5. COLLABORATIVE PROGRAM ACTIVITIES.

(a) In General- The Secretary and the Secretary of the Interior may--

(1) enter into any grants, contracts, cooperative agreements, interagency agreements, or other agreements that the Secretary and the Secretary of the Interior determine to be necessary to carry out the Collaborative Program, including interagency agreements to transfer funds between agencies within the jurisdiction of the Secretary and the Secretary of the Interior; and

(2) accept or provide grants to carry out the Collaborative Program.

(b) Responsibilities- In carrying out the purposes of the Collaborative Program--

(1) the Commissioner of Reclamation may--

(A) carry out flow requirements to comply with the Biological Opinion described in section 205(b) of the Energy and Water Development Appropriations Act, 2005 (Public Law 108-447; 118 Stat. 2949) or any modifications to the Biological Opinion and other projects relating to water management, including--

(i) acquiring interests in land and water to meet minimum flow requirements;

(ii) monitoring and gaging flows;

(iii) pumping from the Low Flow Conveyance Channel and other drains and channels to support silvery minnow and willow flycatcher habitat; and

(iv) improving monitoring and gaging;

(B) consult with the signatory members regarding opportunities and methods to accomplish the responsibilities;

(C) coordinate implementation of all other activities carried out within the Middle Rio Grande under the jurisdiction of the Bureau of Reclamation with the activities of the Collaborative Program to achieve the purposes of the Collaborative Program; and

(D) construct fish passages at San Acacia Diversion Dam and at Isleta Diversion Dam;

(2) the Secretary of the Army--

(A) may carry out and fund additional projects not designated to the Commissioner of Reclamation under paragraph (1), including--

(i) actions to induce overbank flooding and creation of backwaters;

(ii) salvaging eggs;

(iii) improving monitoring and gaging;

(iv) performing habitat and ecosystem restoration;

(v) regeneration of native vegetation and monitoring of associated water depletions;

(vi) reconstructing a new San Marcial Railroad bridge and realignment of the river channel;

(vii) developing ways to--

(I) increase sediment transport through Jemez Canyon Dam, Galisteo Dam, and Cochiti Lake; and

(II) address issues of contaminated sediment;

(viii) preventing salt cedar encroachment in Angostura, Isleta and San Acacia reaches;

(ix) implementing captive propagation of silvery minnow, including expansion of facilities;

(x) creating at least 2 new naturalized refugia, 1 of which shall be carried out in partnership with the Bureau of Reclamation, United States Fish and Wildlife Service, and Middle Rio Grande Conservancy District without direct oversight by the Collaborative Program, under the Silvery Minnow Off-Channel Sanctuaries Program as authorized under section 6014 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 109-13; 119 Stat. 283);

(xi) monitoring silvery minnow protection and recovery efforts by conducting surveys of populations and habitat above Cochiti Lake;

(xii) developing comprehensive water quality assessments and managing changes in water quality;

(xiii) conducting studies and research necessary to define the needs of listed species; and

(xiv) monitoring the effects of activities on listed species;

(B) shall implement the decisions of the Executive Committee in performing the activities described in subparagraph (A); and

(C) shall coordinate implementation of all other activities carried out within the Middle Rio Grande by the Corps of Engineers with the activities of the Collaborative Program in order to achieve the purposes of the Collaborative Program.

(c) Limitations-

(1) ACQUISITION OF LAND OR WATER- In carrying out this Act, the Secretary or the Secretary of the Interior may only acquire interests in land and water.

(2) WATER RIGHTS- Nothing in this Act preempts or affects State water law or an interstate compact governing water.

(3) COMPLIANCE- All actions carried out in accordance with this Act shall be in compliance with applicable State, Federal, or tribal law.

(4) RIO GRANDE COMPACT- No action carried out under this Act shall impair the ability of the State to meet the obligations of the State under the Rio Grande compact.

(5) STATE LAW- The Secretary and the Secretary of the Interior shall carry out activities under the Collaborative Program consistent with State law.

(6) CONSULTATION-

(A) IN GENERAL- Consultations between governments under this Act shall be carried out between the Secretary or the Secretary of the Interior and tribes prior to initiating actions that would impact tribal land or water rights.

(B) CONSENT REQUIREMENT- No action involving access to, or use of, pueblo or tribal land may be carried out without prior written consent of the affected pueblo or Indian tribe.

(7) COLLABORATION- In carrying out this Act, the Secretary and the Secretary of Interior may collaborate with or enter into contracts, cooperative agreements, interagency agreements, or other agreements with, or accept or provide grants to, tribes that--

(A) are signatory members; but

(B) are not represented on the Executive Committee.

(8) NO EFFECT ON CERTAIN AUTHORITY- Nothing in this Act diminishes the authority, sovereignty, or rights of any person, organization, tribe, or other governmental entity.

(9) NO EFFECT ON CERTAIN DUTIES-

(A) IN GENERAL- Nothing in this Act diminishes or impairs--

(i) the trust relationship or responsibility of the Federal Government to any tribe;

(ii) the obligation of the Federal Government to consult with the tribes on a government-to-government basis; or

(iii) the ability of the Federal Government to fund activities for the benefit of the tribes.

(B) FUNDING- Nothing in this Act restricts the Secretary or the Secretary of the Interior from funding activities in accordance with the Indian trust responsibility of the Federal Government.

(10) NO EFFECT ON RESERVOIR OPERATIONS- While this Act provides additional authorization for the Secretary and the Secretary of the Interior, nothing expands the discretion of the Secretary or the Secretary of the Interior with respect to operating reservoir facilities under the jurisdiction of the Secretary or the Secretary of the Interior in the Middle Rio Grande.

SEC. 6. REPORTING.

Not later than 1 year after the date of enactment of this Act, and every 2 years thereafter, the Secretary and the Secretary of the Interior shall submit to the Committee on Environment and Public Works and the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a report that--

(1) describes expenditure of appropriated funds and cost-share contributions;

(2) describes activities carried out under this Act; and

(3) describes compliance with the purposes of this Act.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

(a) Authorization of Appropriations-

(1) IN GENERAL- There is authorized to be appropriated to the Secretary and the Secretary of the Interior such sums as are necessary to carry out this Act for each of fiscal years 2006 through 2015.

(2) NONREIUMBURSABLE- Amounts made available pursuant to paragraph (1) shall be considered nonreimbursable Federal expenditures.

(b) Cost Allocation-

(1) ACTIVITIES AT FULL FEDERAL EXPENSE-

(A) WATER ACQUISITION- Water acquisition and the cost of administration for water acquisition and water management by the Bureau of Reclamation described in section 5(b)(1) shall be carried out at full Federal expense.

(B) ADMINISTRATION- Administration of the Collaborative Program, as described in section 4(d), including the participation of Federal agencies in the Program Implementation Team, shall be carried out at full Federal expense.

(2) COST-SHARE-

(A) IN GENERAL- Subject to subparagraph (B), all projects or activities of the Collaborative Program not described in paragraph (1) that are carried out by the Secretary or the Secretary of the Interior shall require a non-Federal cost-share of 25 percent.

(B) LIMITATION-

(i) IN GENERAL- The total non-Federal share required under subparagraph (A) for all projects during the period of fiscal years 2006 through 2015 shall be not more than $30,000,000.

(ii) FEDERAL EXPENSE- On satisfaction of the total non-Federal share described in clause (i)--

(I) no further non-Federal share shall be required; and

(II) all projects and activities shall be carried out at full Federal expense.

(C) CONTRIBUTIONS- The cost-share under subparagraph (A) may be provided as--

(i) in-kind contributions, including participation on the Program Implementation Team or in working groups, the value of which shall be determined by Secretary; or

(ii) direct cash contributions.

(D) PROGRAMMATIC BASIS- The amount of the Federal and non-Federal cost-shares shall be determined on--

(i) a programmatic, rather than project-by-project, basis; and

(ii) a 3-year interval with excess non-Federal cost-share being credited to subsequent accounting periods.

(c) Administrative Costs- Not more than 15 percent of amounts made available under subsection (a) shall be used to pay the administrative costs of carrying out the Program Implementation Team established under section 4(d).

END