[Congressional Record Volume 157, Number 172 (Thursday, November 10, 2011)]
[Senate]
[Pages S7377-S7382]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. MERKLEY (for himself and Mrs. Boxer):
S. 1851. A bill to authorize the restoration of the Klamath Basin and
the settlement of the hydroelectric licensing of the Klamath
Hydroelectric Project in accordance with the Klamath Basin Restoration
Agreement and the Klamath hydroelectric Settlement
[[Page S7378]]
Agreement in the public interest and the interest of the United States,
and for other purposes; to the Committee on Energy and Natural
Resources.
Mr. MERKLEY. Mr. President, I rise today to address the long history
of water disputes in the Klamath Basin and commend the work of the
community in coming together to begin a new, collaborative era of water
management in the region.
When I was first elected to the U.S. Senate, one of my first trips
across Oregon included a visit to the Klamath Basin to gather
information about the history of the water wars in the region and meet
with the stakeholders who were working on a solution.
On my way down to the Basin I was extremely skeptical that
traditional rivals could reach agreement on a written management plan.
Only a few years earlier, the region was embroiled in protests and
civil disobedience over sizeable fish kills and limited supplies of
water for irrigation. The generational battles over water had deepened
divides, often making it hard for parties to be in a room together, let
alone work together.
When I arrived in Klamath Falls, therefore, I was deeply surprised to
find farmers, ranchers, fishermen, Tribal leaders and conservationists
working together on a comprehensive and collaborative plan that would
end the ongoing water wars of the region, improve the local economy and
create a stronger environment for the future. They told me they were
tired of the unproductive battles of the past and of the massive
amounts they were spending on lawyers rather than solutions. They
thought they had some chance of finding a better path forward. This was
impressive. I thought then that if they managed to get the Klamath
Restoration Agreements completed and signed by all the parties, I would
certainly assist them with the necessary federal legislation.
That legislation is now the Klamath Basin Economic Restoration Act of
2011, which I am introducing today. This bill implements both the
Klamath Basin Restoration Agreement and Klamath Hydroelectric
Settlement Agreement and moves the region forward. These agreements
would provide a more stable supply of irrigation water to farmers and
ranchers and would improve in-river water flows for endangered fish and
the fishermen who depend on them. The agreements would enhance the
national wildlife refuges that are one of the most important migratory
bird habitats in the country. In addition, the agreement would, by
removing four dams, turn the Klamath into a free-flowing river once
again, opening miles of habitat to spawning salmon. The agreement also
restores a sector of the Klamath Tribe forest and resolves a
challenging fish passage issue for Pacific Power.
This agreement would create a lot of jobs. A recent analysis
estimates that the agreement would create 4,000 jobs in construction
and agriculture. It also estimates that with the restoration of
critical salmon and steelhead habitat the commercial harvest of Chinook
salmon would increase by 80 percent.
The KBRA and KHSA agreements are the result of several years of
intense negotiation and compromise. They are inherently complicated. No
party obtained all they desired and not everyone is satisfied that
these agreements contain the best possible outcomes.
But what is absolutely clear is that it is an extraordinary
accomplishment for the Klamath stakeholders to set aside their historic
differences and work out this plan. They say in the West that,
``Whiskey, that's for drinking. Water, that's for fighting.'' But
continuous fighting sometimes reaches the point where little is
accomplished. The Klamath stakeholders are painting a different vision,
in which the interests of all can be served.
The agreement is full of the bipartisan, solution-oriented spirit
that can take the region forward. It is a spirit that we could use a
lot more of in Washington, DC, and across the nation. I am proud to
partner with the Klamath community on the future of the region.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1851
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Klamath
Basin Economic Restoration Act of 2011''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--RESTORATION AGREEMENT
Sec. 101. Approval and execution of Restoration Agreement.
Sec. 102. Agreements and non-Federal funds.
Sec. 103. Rights protected.
Sec. 104. Funding.
Sec. 105. Klamath Reclamation Project.
Sec. 106. Tribal commitments and actions.
Sec. 107. Judicial review.
Sec. 108. Miscellaneous.
TITLE II--HYDROELECTRIC SETTLEMENT
Sec. 201. Approval and execution of Hydroelectric Settlement.
Sec. 202. Secretarial determination.
Sec. 203. Facilities transfer and removal.
Sec. 204. Transfer of Keno Development.
Sec. 205. Liability protection.
Sec. 206. Licenses.
Sec. 207. Miscellaneous.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Energy Regulatory Commission.
(2) Dam removal entity.--The term ``Dam Removal Entity''
means the entity designated by the Secretary pursuant to
section 202(c).
(3) Department.--The term ``Department'' means the
Department of the Interior.
(4) Definite plan.--The term ``definite plan'' has the
meaning given the term in section 1.4 of the Hydroelectric
Settlement.
(5) Detailed plan.--The term ``detailed plan'' has the
meaning given the term in section 1.4 of the Hydroelectric
Settlement.
(6) Facility.--The term ``facility'' means any of the
following hydropower developments (including appurtenant
works) licensed to PacifiCorp under the Federal Power Act (16
U.S.C. 791a et seq.) as Project No. 2082:
(A) Iron Gate Development.
(B) Copco 1 Development.
(C) Copco 2 Development.
(D) J.C. Boyle Development.
(7) Facilities removal.--The term ``facilities removal''
means--
(A) physical removal of all or part of each facility to
achieve, at a minimum, a free-flowing condition and
volitional fish passage;
(B) site remediation and restoration, including restoration
of previously inundated land;
(C) measures to avoid or minimize adverse downstream
impacts; and
(D) all associated permitting for the actions described in
this paragraph.
(8) Federally recognized tribe.--The term ``federally
recognized tribe'' means an Indian tribe listed as federally
recognized in--
(A) the Bureau of Indian Affairs publication entitled
``Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs'' (74 Fed.
Reg. 40218 (Aug. 11, 2009)); or
(B) any list published in accordance with section 104 of
the Federally Recognized Indian Tribe List Act of 1994 (25
U.S.C. 479a-1).
(9) Hydroelectric settlement.--
(A) In general.--The term ``Hydroelectric Settlement''
means the agreement entitled ``Klamath Hydroelectric
Settlement Agreement,'' dated February 18, 2010, between--
(i) the Department;
(ii) the Department of Commerce;
(iii) the State of California;
(iv) the State of Oregon;
(v) PacifiCorp; and
(vi) other parties.
(B) Inclusions.--The term ``Hydroelectric Settlement''
includes any amendments to the Agreement described in
subparagraph (A)--
(i) approved by the parties before the date of enactment of
this Act; or
(ii) approved pursuant to section 201(b)(2).
(10) Keno development.--The term ``Keno Development'' means
the Keno regulating facility within the jurisdictional
project boundary of FERC Project No. 2082.
(11) Klamath basin.--
(A) In general.--The term ``Klamath Basin'' means the land
tributary to the Klamath River in the States.
(B) Inclusions.--The term ``Klamath Basin'' includes the
Lost River and Tule Lake Basins.
(12) Klamath project water users.--The term ``Klamath
Project Water Users'' means--
(A) the Tulelake Irrigation District;
(B) the Klamath Irrigation District;
(C) the Klamath Drainage District;
(D) the Klamath Basin Improvement District;
(E) the Ady District Improvement Company;
(F) the Enterprise Irrigation District;
(G) the Malin Irrigation District;
(H) the Midland District Improvement District;
(I) the Pioneer District Improvement Company;
(J) the Shasta View Irrigation District;
(K) the Sunnyside Irrigation District;
[[Page S7379]]
(L) Don Johnston & Son;
(M) Bradley S. Luscombe;
(N) Randy Walthall;
(O) the Inter-County Title Company;
(P) the Reames Golf and Country Club;
(Q) the Winema Hunting Lodge, Inc.;
(R) Van Brimmer Ditch Company;
(S) Plevna District Improvement Company; and
(T) Collins Products, LLC.
(13) Net revenues.--
(A) In general.--The term ``net revenues'' has the meaning
given the term ``net lease revenues'' in Article 1(e) of
Contract No. 14-06-200-5954 between Tulelake Irrigation
District and the United States.
(B) Inclusions.--The term ``net revenues'' includes
revenues from the leasing of land in--
(i) the Tule Lake National Wildlife Refuge lying within the
boundaries of the Tulelake Irrigation District; and
(ii) the Lower Klamath National Wildlife Refuge lying
within the boundaries of the Klamath Drainage District.
(14) Non-federal parties.--The term ``non-Federal Parties''
means each of the signatories to the Restoration Agreement
other than the Secretaries.
(15) Oregon klamath basin adjudication.--The term ``Oregon
Klamath Basin adjudication'' means the proceeding to
determine water rights pursuant to chapter 539 of Oregon
Revised Statutes entitled ``In the matter of the
determination of the relative rights of the waters of the
Klamath River, a tributary of the Pacific Ocean.''
(16) Pacificorp.--The term ``PacifiCorp'' means the owner
and licensee of the Klamath Hydroelectric Project, FERC
Project No. 2082.
(17) Party.--The term ``Party'' means each of the
signatories to the Restoration Agreement, including the
Secretaries.
(18) Party tribes.--The term ``Party Tribes'' means--
(A) the Yurok Tribe;
(B) the Karuk Tribe; and
(C) the Klamath Tribes.
(19) Restoration agreement.--
(A) Restoration agreement.--The term ``Restoration
Agreement'' means the Agreement entitled ``Klamath Basin
Restoration Agreement for the Sustainability of Public and
Trust Resources and Affected Communities'' dated February 18,
2010, which shall be on file and available for public
inspection in the appropriate offices of the Secretaries.
(B) Inclusions.--The term ``Restoration Agreement''
includes any amendments to the Agreement described in
subparagraph (A)--
(i) approved by the parties before the date of enactment of
this Act; or
(ii) approved pursuant to section 101(b)(2).
(20) Secretarial determination.--The term ``Secretarial
determination'' means a determination of the Secretary made
under section 202(a).
(21) Secretaries.--The term ``Secretaries'' means--
(A) the Secretary of the Interior or designee;
(B) the Secretary of Commerce or designee; and
(C) the Secretary of Agriculture or designee.
(22) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(23) States.--The term ``States'' means--
(A) the State of Oregon; and
(B) the State of California.
TITLE I--RESTORATION AGREEMENT
SEC. 101. APPROVAL AND EXECUTION OF RESTORATION AGREEMENT.
(a) In General.--The United States approves the Restoration
Agreement except to the extent the Restoration Agreement
conflicts with this title.
(b) Signing and Implementation of the Restoration
Agreement.--The Secretaries shall--
(1) sign and implement the Restoration Agreement;
(2) implement any amendment to the Restoration Agreement
approved by the Parties after the date of enactment of this
title, unless 1 or more of the Secretaries determines, not
later than 90 days after the date on which the non-Federal
Parties agree to the amendment, that the amendment is
inconsistent with this title or other provisions of law; and
(3) to the extent consistent with the Restoration
Agreement, this title, and other provisions of law, perform
all actions necessary to carry out each responsibility of the
Secretary concerned under the Restoration Agreement.
(c) Effect of Signing of Restoration Agreement.--Signature
by the Secretaries of the Restoration Agreement does not
constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(d) Compliance With Existing Law.--In implementing the
Restoration Agreement, the Secretaries shall comply with--
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
(3) all other applicable Federal environmental laws
(including regulations).
SEC. 102. AGREEMENTS AND NON-FEDERAL FUNDS.
(a) Agreements.--The Secretaries may enter into such
agreements and take such other measures (including entering
into contracts and financial assistance agreements) as the
Secretaries consider necessary to carry out this title.
(b) Acceptance and Expenditure of Non-Federal Funds.--
(1) In general.--Notwithstanding title 31, United States
Code, the Secretaries may accept and expend, without further
appropriation, non-Federal funds (including donations or in-
kind services, or both) and accept by donation or otherwise
real or personal property or any interest in the property,
for the purposes of implementing the Restoration Agreement.
(2) Use.--The funds may be expended, and the property used,
under paragraph (1) only for the purposes for which the funds
and property were provided, without further appropriation or
authority.
SEC. 103. RIGHTS PROTECTED.
Notwithstanding any other provision of law, this Act and
implementation of the Restoration Agreement shall not
restrict or alter the eligibility of any Party or Indian
tribe for or receipt of funds, or be considered an offset
against any obligations or funds in existence on the date of
enactment of this Act, under any Federal or State law.
SEC. 104. FUNDING.
(a) Establishment of Accounts.--There are established in
the Treasury for the deposit of appropriations and other
funds (including non-Federal donated funds) the following
noninterest-bearing accounts:
(1) The On-Project Plan and Power for Water Management
Fund.
(2) The Water Use Retirement and Off-Project Reliance Fund.
(3) The Klamath Drought Fund.
(b) Management.--The accounts established by subsection (a)
shall be managed in accordance with this title and section
14.3 of the Restoration Agreement.
(c) Budget Requests.--When submitting annual budget
requests to Congress, the President may include funding
described in Appendix C-2 of the Restoration Agreement with
such adjustment as the President considers appropriate to
maintain timely implementation of the Restoration Agreement.
(d) Nonreimbursable.--Except as provided in section 108(d),
funds appropriated and expended for the implementation of the
Restoration Agreement shall be nonreimbursable and
nonreturnable to the United States.
(e) Funds Available Until Expended.--All funds made
available for the implementation of the Restoration Agreement
shall remain available until expended.
SEC. 105. KLAMATH RECLAMATION PROJECT.
(a) Klamath Reclamation Project Purposes.--The purposes of
the Klamath Reclamation Project shall be irrigation,
reclamation, flood control, municipal, industrial, power (as
necessary to implement the Restoration Agreement), National
Wildlife Refuge, and fish and wildlife.
(b) Effect of Fish and Wildlife Purposes.--
(1) In general.--Subject to paragraph (2), the fish and
wildlife and National Wildlife Refuge purposes of the Klamath
Reclamation Project shall not adversely affect the irrigation
purpose of the Klamath Reclamation Project.
(2) Water allocations and delivery.--The provisions
regarding water allocations and delivery to the National
Wildlife Refuges in section 15.1.2 of the Restoration
Agreement (including any additional water made available
under sections 15.1.2.E.ii and 18.3.2.B.v of the Restoration
Agreement) shall not be considered to have an adverse effect
on the irrigation purpose of the Klamath Reclamation Project.
(c) Water Rights Adjudication.--Notwithstanding subsections
(a) and (b), for purposes of the determination of water
rights in Oregon Klamath Basin Adjudication, until Appendix
E-1 to the Restoration Agreement has been filed in the Oregon
Klamath Basin Adjudication, the 1 or more purposes of the
Klamath Reclamation Project shall continue as in existence
prior to the date of enactment of this Act.
(d) Disposition of Net Revenues From Leasing of Tule Lake
and Lower Klamath National Wildlife Refuge Land.--
Notwithstanding any other provision of law, net revenues from
the leasing of refuge land within the Tule Lake National
Wildlife Refuge and the Lower Klamath National Wildlife
Refuge under section 4 of Public Law 88-567 (16 U.S.C. 695n)
shall be provided, without further appropriation, as follows:
(1) 10 percent of net revenues from land within the Tule
Lake National Wildlife Refuge that are within the boundaries
of Tulelake Irrigation District shall be provided to the
Tulelake Irrigation District in accordance with article 4 of
Contract No. 14-06-200-5954 and section 2(a) of the Act of
August 1, 1956 (70 Stat. 799, chapter 828).
(2) Such amounts as are necessary shall be used to make
payment to counties in lieu of taxes in accordance with
section 3 of Public Law 88-567 (16 U.S.C. 695m).
(3) 20 percent of net revenues shall be provided directly
to the United States Fish and Wildlife Service for wildlife
management purposes on the Tule Lake National Wildlife Refuge
and Lower Klamath National Wildlife Refuge.
(4) 10 percent of net revenues from land within Lower
Klamath National Wildlife Refuge that are within the
boundaries of the Klamath Drainage District shall be provided
directly to Klamath Drainage District for operation and
maintenance responsibility for the Federal Reclamation water
delivery and drainage facilities within the boundaries of
both Klamath Drainage District and Lower Klamath National
Wildlife Refuge exclusive of the Klamath Straits Drain,
subject to the
[[Page S7380]]
assumption by the Klamath Drainage District of the operation
and maintenance duties of the Bureau of Reclamation for
Klamath Drainage District (Area K) lease land exclusive of
Klamath Straits Drain.
(5) The remainder of net revenues shall be provided
directly to the Bureau of Reclamation for--
(A) operation and maintenance costs of Link River and Keno
Dams incurred by the United States; and
(B) to the extent that the revenues received under this
paragraph for any year exceed the costs described in
subparagraph (A), future capital costs of the Klamath
Reclamation Project.
SEC. 106. TRIBAL COMMITMENTS AND ACTIONS.
(a) Actions by the Klamath Tribes.--In return for the
resolution of the contests of the Klamath Project Water Users
related to the water rights claims of the Klamath Tribes and
of the United States acting in a capacity as trustee for the
Klamath Tribes and members of the Klamath Tribes in the
Oregon Klamath Basin Adjudication and for other benefits
covered by the Restoration Agreement and this Act, the
Klamath Tribes (on behalf of the Klamath Tribes and members
of the Klamath Tribes) are authorized to make the commitments
in the Restoration Agreement, including the assurances
contained in section 15 of the Restoration Agreement, and
such commitments are confirmed as effective and binding in
accordance with the terms of the commitments without further
action by the Klamath Tribes.
(b) Actions by the Karuk Tribe and the Yurok Tribe.--In
return for the commitments of the Klamath Project Water Users
related to water rights of the Karuk Tribe and the Yurok
Tribe as described in the Restoration Agreement and for other
benefits covered by the Restoration Agreement and this Act,
the Karuk Tribe and the Yurok Tribe (on behalf of those
Tribes and members of those Tribes) are authorized to make
the commitments provided in the Restoration Agreement,
including the assurances contained in section 15 of the
Restoration Agreement, and such commitments are confirmed as
effective and binding in accordance with the terms of the
commitments without further action by the Yurok Tribe or the
Karuk Tribe.
(c) Release of Claims Against the United States.--
(1) In general.--Without affecting rights secured by
treaty, Executive order, or other law, the Party Tribes (on
behalf of the Party Tribes and members of the Party Tribes)
may relinquish and release certain claims against the United
States, Federal agencies, or Federal employees, described in
sections 15.3.5.A, 15.3.6.B.i and 15.3.7.B.i of the
Restoration Agreement.
(2) Conditions.--The relinquishments and releases shall not
be in force or effect until the terms described in sections
15.3.5.C, 15.3.6.B.iii, 15.3.7.B.iii, and 33.2.1 of the
Restoration Agreement have been fulfilled.
(d) Retention of Rights of the Party Tribes.--
Notwithstanding the commitments and releases described in
subsections (a) through (c), the Party Tribes and the members
of the Party Tribes shall retain all claims described in
sections 15.3.5.B, 15.3.6.B.ii and 15.3.7.B.ii of the
Restoration Agreement.
(e) Tolling of Claims.--
(1) In general.--Subject to paragraph (2), the period of
limitation and time-based equitable defense relating to a
claim described in subsection (c) shall be tolled during the
period--
(A) beginning on the date of enactment of this Act; and
(B) ending on the earlier of--
(i) the date the Secretary publishes the notice described
in sections 15.3.5.C, 15.3.6.B.iii and 15.3.7.B.iii of the
Restoration Agreement; or
(ii) December 1, 2030.
(2) Effect of tolling.--Nothing in this subsection--
(A) revives any claim or tolls any period of limitation or
time-based equitable defense that expired before the date of
enactment of this Act; or
(B) precludes the tolling of any period of limitations or
any time-based equitable defense under any other applicable
law.
(f) Actions of the United States Acting in Capacity as
Trustee.--In return for the commitments of the Klamath
Project Water Users relating to the water rights and water
rights claims of federally recognized tribes of the Klamath
Basin and of the United States as trustee for such tribes and
other benefits covered by the Restoration Agreement and this
Act, the United States, as trustee on behalf of the federally
recognized tribes of the Klamath Basin and allottees of
reservations of federally recognized tribes of the Klamath
Basin in California, is authorized to make the commitments
provided in the Restoration Agreement, including the
assurances contained in section 15 of the Restoration
Agreement, and such commitments are confirmed as effective
and binding in accordance with the terms of the commitments,
without further action by the United States.
(g) Further Agreements.--The United States and the Klamath
Tribes may enter into agreements consistent with section 16.2
of the Restoration Agreement.
(h) Effect of Section.--Nothing in this section--
(1) affects the ability of the United States to take
actions--
(A) authorized by law to be taken in the sovereign capacity
of the United States, including any laws relating to health,
safety, or the environment, including--
(i) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(ii) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(iii) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
(iv) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.); and
(v) regulations implementing the Acts described in this
subparagraph;
(B) as trustee for the benefit of federally recognized
tribes other than the federally recognized tribes of the
Klamath Basin;
(C) as trustee for the federally recognized tribes of the
Klamath Basin and the members of the tribes that are
consistent with the Restoration Agreement and this title;
(D) as trustee for the Party Tribes to enforce the
Restoration Agreement and this title through such legal and
equitable remedies as may be available in the appropriate
Federal or State court or administrative proceeding,
including the Oregon Klamath Basin Adjudication;
(E) as trustee for the federally recognized tribes of the
Klamath Basin to acquire water rights after the effective
date of the Restoration Agreement (as defined in section
1.5.1 of the Restoration Agreement);
(F) as trustee for the federally recognized tribes of the
Klamath Basin to use and protect water rights, including
water rights acquired after the effective date of the
Restoration Agreement (as defined in section 1.5.1 of the
Restoration Agreement), subject to the Restoration Agreement;
or
(G) as trustee for the federally recognized tribes of the
Klamath Basin to claim water rights or continue to advocate
for existing claims for water rights in appropriate Federal
and State courts or administrative proceedings with
jurisdiction over the claims, subject to the Restoration
Agreement;
(2) affects the treaty fishing, hunting, trapping,
pasturing, or gathering rights of any Indian tribe except to
the extent expressly provided in this title or the
Restoration Agreement; or
(3) affects any rights, remedies, privileges, immunities,
and powers, and claims not specifically relinquished and
released under, or limited by, this title or the Restoration
Agreement.
(i) Publication of Notice; Effect of Publication.--
(1) Publication.--The Secretary shall publish the notice
required by section 15.3.4.A or section 15.3.4.C of the
Restoration Agreement in accordance with the Restoration
Agreement.
(2) Effect.--On publication of the notice described in
paragraph (1), the Party Tribes, the United States as trustee
for the federally recognized tribes of the Klamath Basin, and
other Parties shall have the rights and obligations provided
in the Restoration Agreement.
(j) Fisheries Programs.--Consistent with section 102(a),
the Secretaries shall give priority to qualified Party Tribes
in awarding grants, contracts, or other agreements,
consistent with section 102, for purposes of implementing the
fisheries programs described in part III of the Restoration
Agreement.
(k) Tribes Outside Klamath Basin Unaffected.--Nothing in
this Act or the Restoration Agreement affects the rights of
any Indian tribe outside the Klamath Basin.
(l) Nonparty Tribes of the Klamath Basin Unaffected.--
Nothing in this Act or the Restoration Agreement amends,
alters, or limits the authority of the federally recognized
tribes of the Klamath Basin, other than the Party Tribes, to
exercise any water rights the tribes hold or may be
determined to hold.
SEC. 107. JUDICIAL REVIEW.
Judicial review of a decision of the Secretary concerning
rights or obligations under sections 15.3.5.C, 15.3.6.B.iii,
15.3.7.B.iii, 15.3.8.B, and 15.3.9 of the Restoration
Agreement shall be in accordance with the standard and scope
of review under subchapter II of chapter 5, and chapter 7, of
title 5, United States Code (commonly known as the
``Administrative Procedure Act'').
SEC. 108. MISCELLANEOUS.
(a) Water Rights.--
(1) In general.--Except as specifically provided in this
title and the Restoration Agreement, nothing in this title or
the Restoration Agreement shall create or determine water
rights or affect water rights or water right claims in
existence on the date of enactment of this Act.
(2) No standard for quantification.--Nothing in this title
or the Restoration Agreement establishes any standard for the
quantification of Federal reserved water rights or any Indian
water claims of any Indian tribe in any judicial or
administrative proceeding.
(b) Limitations.--
(1) In general.--Nothing in this title--
(A) confers on any person or entity who is not a party to
the Restoration Agreement a private right of action or claim
for relief to interpret or enforce this title or the
Restoration Agreement; or
(B) expands the jurisdiction of State courts to review
Federal agency actions or determine Federal rights.
(2) Effect.--This subsection does not alter or curtail any
right of action or claim for relief under other applicable
law.
(c) Relationship to Certain Other Federal Law.--
[[Page S7381]]
(1) In general.--Nothing in this title amends, supersedes,
modifies, or otherwise affects--
(A) Public Law 88-567 (16 U.S.C. 695k et seq.);
(B) the National Wildlife Refuge System Administration Act
of 1966 (16 U.S.C. 668dd et seq.);
(C) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(D) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.); or
(E) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.).
(2) Consistency.--The Restoration Agreement shall be
considered consistent with subsections (a) through (c) of
section 208 of the Act of July 10, 1952 (66 Stat. 560,
chapter 651; 43 U.S.C. 666).
(d) Termination of Restoration Agreement.--If the
Restoration Agreement terminates--
(1) any appropriated Federal funds provided to a Party by
the Secretaries that are unexpended at the time of the
termination of the Restoration Agreement shall be returned to
the Treasury; and
(2) any appropriated Federal funds provided to a Party by
the Secretaries shall be treated as an offset against any
claim for damages by the Party arising under the Restoration
Agreement.
(e) Willing Sellers.--Any acquisition of interests in land
and water pursuant to this title or the Restoration Agreement
shall be from willing sellers.
TITLE II--HYDROELECTRIC SETTLEMENT
SEC. 201. APPROVAL AND EXECUTION OF HYDROELECTRIC SETTLEMENT.
(a) In General.--The United States approves the
Hydroelectric Settlement, except to the extent the
Hydroelectric Settlement conflicts with this title.
(b) Implementation.--The Secretary, the Secretary of
Commerce, and the Commission, or designees, shall implement,
in consultation with other applicable Federal agencies--
(1) the Hydroelectric Settlement; and
(2) any amendment to the Hydroelectric Settlement, unless 1
or more of the Secretaries determines, not later than 90 days
after the date the non-Federal Parties agree to the
amendment, that the amendment is inconsistent with this
title.
SEC. 202. SECRETARIAL DETERMINATION.
(a) In General.--The Secretary shall determine, consistent
with section 3 of the Hydroelectric Settlement, whether to
proceed with facilities removal and may determine to proceed
with facilities removal if, as determined by the Secretary,
facilities removal--
(1) will advance restoration of the salmonid fisheries of
the Klamath Basin; and
(2) is in the public interest, taking into account
potential impacts on affected local communities and federally
recognized Indian tribes among other factors.
(b) Basis for Secretarial Determination.--To support the
Secretarial determination, the Secretary, in cooperation with
the Secretary of Commerce and other entities, shall--
(1) use existing information;
(2) conduct any necessary further appropriate studies;
(3) prepare an environmental document under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
and
(4) take such other actions as the Secretary determines to
be appropriate.
(c) Designation of Dam Removal Entity.--
(1) In general.--If the Secretarial determination provides
for proceeding with facilities removal, the Secretarial
determination shall include the designation of a Dam Removal
Entity.
(2) Requirements.--
(A) In general.--Subject to subparagraph (B), the Dam
Removal Entity designated by the Secretary shall be the
Department if the Secretary determines, in the judgment of
the Secretary, that--
(i) the Department has the capabilities and
responsibilities for facilities removal described in section
7 of the Hydroelectric Settlement; and
(ii) it is appropriate for the Department to be the Dam
Removal Entity.
(B) Non-federal dam removal entity.--As determined by the
Secretary consistent with section 3.3.4.E of the
Hydroelectric Settlement, the Secretary may designate a non-
Federal Dam Removal Entity if--
(i) the Secretary finds, based on the judgment of the
Secretary, that the Dam Removal Entity-designate is qualified
and has the capabilities and responsibilities for facilities
removal described in section 7 of the Hydroelectric
Settlement;
(ii) the States have concurred in the finding described in
clause (i); and
(iii) the Dam Removal Entity-designate has committed, if so
designated, to perform facilities removal within the State
Cost Cap described in section 4.1.3 of the Hydroelectric
Settlement.
(d) Conditions for Secretarial Determination.--The
Secretary may not make or publish the Secretarial
determination, unless the conditions specified in section
3.3.4 of the Hydroelectric Settlement have been satisfied.
(e) Notice.--The Secretary shall--
(1) publish notification of the Secretarial determination
in the Federal Register; and
(2) submit to the Committee on Energy and Natural Resources
of the Senate and the Committee on Natural Resources of the
House of Representatives a report on implementation of the
Hydroelectric Settlement.
(f) Judicial Review of Secretarial Determination.--
(1) In general.--For purposes of judicial review, the
Secretarial determination shall constitute a final agency
action with respect to whether or not to proceed with
facilities removal.
(2) Petition for review.--
(A) Filing.--
(i) In general.--Judicial review of the Secretarial
determination and related actions to comply with
environmental laws (including the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq), the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq), and the National
Historic Preservation Act (16 U.S.C. 470 et seq.)) may be
obtained by an aggrieved person or entity only as provided in
this subsection.
(ii) Jurisdiction.--A petition for review under this
paragraph may be filed only in the United States Court of
Appeals for the District of Columbia Circuit or in the Ninth
Circuit Court of Appeals.
(iii) Limitation.--Neither a district court of the United
States nor a State court shall have jurisdiction to review
the Secretarial determination or related actions to comply
with environmental laws described in clause (i).
(B) Deadline.--
(i) In general.--Except as provided in clause (ii), any
petition for review under this subsection shall be filed
within 60 days after the date of publication of the
Secretarial determination in the Federal Register.
(ii) Subsequent grounds.--If a petition is based solely on
grounds arising after the date that is 60 days after the date
of publication of the Secretarial determination in the
Federal Register, the petition for review under this
subsection shall be filed not later than 60 days after the
grounds arise.
(3) Implementation.--Any action of the Secretary with
respect to which review could have been obtained under this
paragraph shall not be subject to judicial review in any
action relating to the implementation of the Secretarial
determination or in proceedings for enforcement of the
Hydroelectric Settlement.
(4) Applicable standard and scope.--Judicial review of the
Secretarial determination shall be in accordance with the
standard and scope of review under subchapter II of chapter
5, and chapter 7, of title 5, United States Code (commonly
known as the ``Administrative Procedure Act'').
(5) Non-tolling.--The filing of a petition for
reconsideration by the Secretary of an action subject to
review under this subsection shall not--
(A) affect the finality of the action for purposes of
judicial review;
(B) extend the time within which a petition for judicial
review under this subsection may be filed; or
(C) postpone the effectiveness of the action.
SEC. 203. FACILITIES TRANSFER AND REMOVAL.
(a) Facilities Removal Process.--
(1) Application.--This subsection shall apply if--
(A) the Secretarial determination provides for proceeding
with facilities removal;
(B) the States concur in the Secretarial determination in
accordance with section 3.3.5 of the Hydroelectric
Settlement;
(C) the availability of non-Federal funds for the purposes
of facilities removal is consistent with the Hydroelectric
Settlement; and
(D) the Hydroelectric Settlement has not terminated in
accordance with section 8.11 of the Hydroelectric Settlement.
(2) Non-federal funds.--
(A) In general.--Notwithstanding title 31, United States
Code, if the Department is designated as the Dam Removal
Entity, the Secretary may accept, expend without further
appropriation, and manage non-Federal funds for the purpose
of facilities removal in accordance with sections 4 and 7 of
the Hydroelectric Settlement.
(B) Refund.--The Secretary is authorized to administer and
refund any funds described in subparagraph (A) received from
the State of California in accordance with the requirements
established by the State.
(3) Agreements.--The Dam Removal Entity may enter into
agreements and contracts as necessary to assist in the
implementation of the Hydroelectric Settlement.
(4) Facilities removal.--
(A) In general.--The Dam Removal Entity shall, consistent
with the Hydroelectric Settlement--
(i) develop a definite plan for facilities removal,
including a schedule for facilities removal;
(ii) obtain all permits, authorizations, entitlements,
certifications, and other approvals necessary to implement
facilities removal, including a permit under section 404 of
the Federal Water Pollution Control Act (33 U.S.C. 1344); and
(iii) implement facilities removal.
(B) State and local laws.--Facilities removal shall be
subject to applicable requirements of State and local laws
respecting permits and other authorizations, to the extent
the requirements are not in conflict with Federal law,
including the Secretarial determination and the detailed plan
(including the schedule) for facilities removal authorized
under this Act.
(C) Limitations.--Subparagraph (B) shall not affect--
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(i) the authorities of the States regarding concurrence
with the Secretarial determination in accordance with State
law; or
(ii) the authority of a State public utility commission
regarding funding of facilities removal.
(D) Acceptance of title to facilities.--The Dam Removal
Entity is authorized to accept from PacifiCorp all rights,
titles, permits, and other interests in the facilities and
associated land, for facilities removal and for disposition
of facility land (as provided in section 7.6.4 of the
Hydroelectric Settlement) upon the Dam Removal Entity
providing notice that the Dam Removal Entity is ready to
commence facilities removal in accordance with section 7.4.1
of the Hydroelectric Settlement.
(E) Continued power generation.--
(i) In general.--In accordance with an agreement negotiated
under clause (ii), on transfer of title pursuant to
subparagraph (D) and until the Dam Removal Entity instructs
PacifiCorp to cease the generation of power, PacifiCorp may,
consistent with State law--
(I) continue generating and retaining title to any power
generated by the facilities in accordance with section 7 of
the Hydroelectric Settlement; and
(II) continue to transmit and use the power for the benefit
of the customers of PacifiCorp under the jurisdiction of
applicable State public utility commissions and the
Commission.
(ii) Agreement with dam removal entity.--Before transfer of
title pursuant to subparagraph (D), the Dam Removal Entity
shall enter into an agreement with PacifiCorp that provides
for continued generation of power in accordance with clause
(i).
(b) Jurisdiction.--The United States district courts shall
have original jurisdiction over all claims regarding the
consistency of State and local laws regarding permits and
other authorizations, and of State and local actions pursuant
to those laws, with the Secretarial determination and the
detailed plan (including the schedule) for facilities removal
authorized under this title.
(c) No Private Right of Action.--
(1) In general.--Nothing in this title confers on any
person or entity not a party to the Hydroelectric Settlement
a private right of action or claim for relief to interpret or
enforce this title or the Hydroelectric Settlement.
(2) Other law.--This subsection does not alter or curtail
any right of action or claim for relief under any other
applicable law.
SEC. 204. TRANSFER OF KENO DEVELOPMENT.
(a) In General.--The Secretary shall accept the transfer of
title in the Keno Development to the United States in
accordance with section 7.5 of the Hydroelectric Settlement.
(b) Effect of Transfer.--On the transfer and without
further action by Congress--
(1) the Keno Development shall--
(A) become part of the Klamath Reclamation Project; and
(B) be operated and maintained in accordance with Federal
reclamation law (the Act of June 17, 1902 (32 Stat. 388,
chapter 1093), and Acts supplemental to and amendatory of
that Act (43 U.S.C. 371 et seq.) and this Act; and
(2) Commission jurisdiction over the Keno Development shall
terminate.
SEC. 205. LIABILITY PROTECTION.
(a) PacifiCorp.--Notwithstanding any other Federal, State,
local, or other law (including common law), PacifiCorp shall
not be liable for any harm to persons, property, or the
environment, or damages resulting from either facilities
removal or facility operation, arising from, relating to, or
triggered by actions associated with facilities removal,
including but not limited to any damage caused by the release
of any material or substance, including but not limited to
hazardous substances.
(b) Funding.--Notwithstanding any other Federal, State,
local, or other law, no person or entity contributing funds
for facilities removal pursuant to the Hydroelectric
Settlement shall be held liable, solely by virtue of that
funding, for any harm to persons, property, or the
environment, or damages arising from either facilities
removal or facility operation, arising from, relating to, or
triggered by actions associated with facilities removal,
including any damage caused by the release of any material or
substance, including hazardous substances.
(c) Preemption.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding section 10(c) of the Federal Power Act (16
U.S.C. 803(c)), protection from liability under this section
preempts the laws of any State to the extent the laws are
inconsistent with this title.
(2) Other provisions of law.--This title does not limit any
otherwise available immunity, privilege, or defense under any
other provision of law.
(d) Application.--Liability protection under this section
shall apply to any particular facility beginning on the date
of transfer of title to that facility from PacifiCorp to the
Dam Removal Entity.
SEC. 206. LICENSES.
(a) Annual Licenses.--
(1) In general.--The Commission shall issue annual licenses
authorizing PacifiCorp to continue to operate the facilities
until PacifiCorp transfers title to all of the facilities.
(2) Termination.--The annual licenses shall terminate with
respect to a facility on transfer of title for such facility
from PacifiCorp to the Dam Removal Entity.
(3) Staged removal.--
(A) In general.--On transfer of title of any facility by
PacifiCorp to the Dam Removal Entity, annual license
conditions shall no longer be in effect with respect to such
facility.
(B) Nontransfer of title.--Annual license conditions shall
remain in effect with respect to any facility for which
PacifiCorp has not transferred title to the Dam Removal
Entity to the extent compliance with the annual license
conditions are not prevented by the removal of any other
facility.
(b) Jurisdiction.--The jurisdiction of the Commission under
part I of the Federal Power Act (16 U.S.C. 791a et seq.)
shall terminate with respect to a facility on the transfer of
title for the facility from PacifiCorp to the Dam Removal
Entity.
(c) Relicensing.--
(1) In general.--The Commission shall--
(A) stay the proceeding of the Commission on the pending
license application of PacifiCorp for Project No. 2082 as
long as the Hydroelectric Settlement remains in effect; and
(B) resume the proceeding and proceed to take final action
on the new license application only if the Hydroelectric
Settlement terminates pursuant to section 8.11 of the
Hydroelectric Settlement.
(2) Termination.--
(A) In general.--Subject to subparagraph (B), if the
Hydroelectric Settlement is terminated, the Secretarial
determination under section 202(a) and findings of fact
contained in the Secretarial determination shall not be
admissible or otherwise relied on in the proceedings of the
Commission on the new license application.
(B) Limitations.--If the Hydroelectric Settlement is
terminated, the Commission, in proceedings on the new license
application, shall not be bound by the record, findings, or
determination of the Secretary under this section.
(d) East Side and West Side Developments.--On filing by
PacifiCorp of an application for surrender of the East Side
and West Side Developments in Project No. 2082, the
Commission shall issue an order approving partial surrender
of the license for Project No. 2082, including any reasonable
and appropriate conditions, as provided in section 6.4.1 of
the Hydroelectric Settlement.
(e) Fall Creek.--Notwithstanding subsection (b), not later
than 60 days after the date of the transfer of the Iron Gate
Facility to the Dam Removal Entity, the Commission shall
resume timely consideration of the pending licensing
application for the Fall Creek development pursuant to the
Federal Power Act (16 U.S.C. 791a et seq.), regardless of
whether PacifiCorp retains ownership of Fall Creek or
transfers ownership to a new licensee.
(f) Iron Gate Hatchery.--Notwithstanding section 8 of the
Federal Power Act (16 U.S.C. 801), the PacifiCorp Hatchery
Facilities within the State of California shall be
transferred to the State of California at the time of
transfer to the dam removal entity of the Iron Gate Hydro
Development or such other time agreed by the Parties to the
Hydroelectric Settlement.
(g) Transfers of Facilities.--Notwithstanding section 8 of
the Federal Power Act (16 U.S.C. 801), the transfer of
PacifiCorp facilities to a non-Federal dam removal entity
consistent with the Hydroelectric Settlement and this title
is authorized.
SEC. 207. MISCELLANEOUS.
(a) Water Rights.--Except as specifically provided in this
title and the Hydroelectric Settlement, nothing in this title
or the Hydroelectric Settlement shall create or determine
water rights or affect water rights or water right claims in
existence on the date of enactment of this Act..
(b) Tribal Rights.--Nothing in this title affect the rights
of any Indian tribe secured by treaty, Executive order, or
other law of the United States.
(c) Relationship to Other Federal Laws.--Nothing in this
title amends, supersedes, modifies or otherwise affects--
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); or
(3) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.), except to the extent section 203 of this Act
requires a permit under section 404 of that Act (33 U.S.C.
1344) notwithstanding section 404(r) of that Act (33 U.S.C.
1344(r)).
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