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Text of the To amend the Elwha River Ecosystem and Fisheries Restoration Act to provide further for the acquisition and removal of the ...

...removal of the Elwha dam and acquisition of Glines Canyon dam and the restoration of the Elwha River ecosystem and native anadro

This bill was introduced on July 21, 1998, in a previous session of Congress, but was not enacted. The text of the bill below is as of Jul 21, 1998 (Introduced).

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HR 4294 IH

105th CONGRESS

2d Session

H. R. 4294

To amend the Elwha River Ecosystem and Fisheries Restoration Act to provide further for the acquisition and removal of the Elwha dam and acquisition of Glines Canyon dam and the restoration of the Elwha River ecosystem and native anadromous fisheries, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

July 21, 1998

Mr. WHITE introduced the following bill; which was referred to the Committee on Resources


A BILL

To amend the Elwha River Ecosystem and Fisheries Restoration Act to provide further for the acquisition and removal of the Elwha dam and acquisition of Glines Canyon dam and the restoration of the Elwha River ecosystem and native anadromous fisheries, 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. ACQUISITION OF PROJECTS AND REMOVAL OF DAMS.

    The Elwha River Ecosystem and Fisheries Restoration Act (106 Stat. 3173) is amended by striking section 3 and inserting the following:

‘SEC. 3. ACQUISITION OF PROJECTS.

    ‘(a) IN GENERAL- As soon as practicable after sums are appropriated for the purpose, the Secretary shall acquire the Elwha Project and Glines Project for a purchase price of $29,500,000.

    ‘(b) RELEASE FROM LIABILITY-

      ‘(1) IN GENERAL- Subject to paragraph (2), the acquisition of the Projects shall be conditioned on a release from liability providing that all obligations and liabilities of the owner and the local industrial consumer to the United States arising from the Projects, based on ownership or on a license, permit, contract, or other authority (including Project removal and any ecosystem, fish and wildlife mitigation, and restoration obligations), shall, from the moment of title transfer, be deemed to have been satisfied.

      ‘(2) LIABILITY TO INDIAN TRIBES- The United States may not assume or satisfy the liability, if any, of the owner or local industrial consumer to any federally recognized Indian tribe, nor shall any such liability be deemed satisfied without the consent of the Indian tribe.

    ‘(c) ELWHA PROJECT-

      ‘(1) REMOVAL OF DAM-

        ‘(A) IN GENERAL- After acquiring the Elwha Project, the Secretary as soon as practicable after sums are appropriated for the purpose, shall remove the Elwha dam.

        ‘(B) PROTECTION OF WATER SUPPLY-

          ‘(i) IN GENERAL- Before commencing removal of the Elwha dam or taking any steps to breach, bypass, or otherwise alter the water flow from the Elwha dam, the Secretary shall take all such actions as are necessary to ensure the continued availability, after removal of the dam, of the quantity and quality of water that is available, as of the date of enactment of this paragraph, to the city of Port Angeles, Washington, the Dry Creek Water Association, current (as of the date of enactment of this paragraph) and future industrial water users, and other current users of water from the Elwha River.

          ‘(ii) ACTIONS INCLUDED- The actions that the Secretary shall, subject to the availability of appropriations, take under clause (i) include--

            ‘(I) the design, construction, operation, and maintenance of new or improved water treatment or storage facilities; and

            ‘(II) the mitigation of any injury to fisheries and remediation of any degradation in water quality that may result from the removal of or any other change in the water flow from the Elwha dam.

          ‘(iii) PAYMENT OF COSTS- The cost of each action taken under clause (i), subject to the availability of appropriations, shall be borne by the Secretary.

      ‘(2) EVALUATION OF EFFECT OF REMOVAL- During the removal phase of the Elwha dam, the Secretary shall make a thorough evaluation of the impact of removal of the dam on fish runs, and submit his findings to Congress.

      ‘(3) COMPENSATION FOR LOST REVENUE- After the acquisition of the Projects, the Secretary shall pay the Clallam County Board of Commissioners $150,000 per year for a period of 12 years, subject to the availability of annual appropriations, for the purposes of recovering lost revenue under the

condition that the county dedicate at least 50 percent of each payment to studying the river system before, during, and after dam removal.

      ‘(4) PRIOR EFFORTS- Efforts by the Secretary prior to enactment of this paragraph to evaluate the environmental impacts of dam removal are declared to meet and fully comply with any otherwise applicable provisions of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) and the National Environmental Policy Act of 1969 (42 U.S.C. 4332) for purposes of removing the Elwha Dam as provided under this Act.

    ‘(d) GLINES PROJECT-

      ‘(1) GLINES CANYON DAM OPERATIONS-

        ‘(A) IN GENERAL- Except as provided in paragraph (2), the Secretary shall continue operation of the Glines Canyon dam after the Elwha dam has been removed subject to the availability of funds for that purpose.

        ‘(B) ENGINEERING, DESIGN, AND EVALUATION- As soon as practicable after the date of enactment of this paragraph, the Secretary shall--

          ‘(i) complete an engineering and design study to determine the most cost-effective manner in which transmission lines and operational controls can be reconfigured to permit continued operation of the Glines Canyon dam as provided in subparagraph (A); and

          ‘(ii) evaluate the impact that managing the Glines Canyon Project for fisheries restoration will have on future hydropower operations.

      ‘(2) FISHERIES RESTORATION ENHANCEMENT EFFORTS-

        ‘(A) ANNUAL RESTORATION WORK PLAN- As soon as practicable after the date of enactment of this paragraph and each year thereafter, the Secretary shall, in consultation with the appropriate Federal, State, tribal, and local entities, develop an annual work plan that clearly defines all requirements necessary to achieve the ecosystem restoration objectives of this Act. The Secretary’s annual work plan shall include, but is not limited to, specific details on engineering and environmental studies (including plans and specifications) for dam removal, water supply, reconfiguration of power, and river restoration measures. The work plan shall include a schedule of yearly activities, major milestones, and performance measurement criteria.

        ‘(B) INDEPENDENT SCIENTIFIC REVIEW PANEL-

          ‘(i) The Secretary shall appoint an Independent Scientific Review Panel (Panel), which shall be comprised of eleven members, to review progress toward restoration of the Elwha River ecosystem and the contribution of removal of the Elwha River Dam toward restoration. Members shall be appointed from a list of no fewer than 20 scientists submitted by the National Academy of Sciences (Academy): Provided, That Pacific Northwest scientists with expertise in anadromous and non-anadromous fish and wildlife and ocean experts shall be among those represented on the Panel. If appointments are required in subsequent years, the Secretary shall request nominations from the Academy and the Academy shall provide nominations not later than 90 days after the date of this request. If the Academy does not provide nominations within 90 days of enactment of this Act, the Secretary may appoint such members as the Secretary deems appropriate.

          ‘(ii) CONFLICT OF INTEREST AND COMPENSATION- Panel members may be compensated and shall be considered subject to the conflict of interest standards that apply to scientists performing comparable work for the National Academy of Sciences. All expenses of the Panel shall be paid by the Secretary as provided for under clause (vii). The Panel shall not be deemed an advisory committee within the meaning of the Federal Advisory Committee Act.

          ‘(iii) PROJECT CRITERIA AND REVIEW- The Panel shall, in consultation with the Washington Department of Fish and Wildlife, the National Marine Fisheries Service, the Lower Elwha Klallam Indian Tribe and the Elwha Citizens’ Advisory Committee, review the Secretary’s annual work plan for Elwha Ecosystem Restoration and make recommendations on

matters related to such work plan to the Secretary no later than June 15 of each year. If the Secretary does not receive the recommendations by this date, the Secretary may proceed to implement the work plan, relying on the best information available. The Panel shall base its recommendations on a determination that the work plan is based on sound science principles; benefit fish and wildlife; and have a clearly defined objective and outcome with provisions for monitoring and evaluation of results. In making its recommendations to the Secretary, the Panel shall determine whether the work plan employs cost-effective measures to achieve the objectives of this Act. The Panel, with assistance from the Washington Department of Fish and Wildlife, the National Marine Fisheries Service, the Lower Elwha Klallam Indian Tribe and the Elwha Citizens’ Advisory Committee, shall review, on an annual basis, the results of prior year expenditures based upon these criteria and submit its findings to the Secretary for its review.

          ‘(iv) EVALUATION OF ELWHA DAM REMOVAL- Each year following removal of the Elwha Dam, the Panel shall, in consultation with the Washington Department of Fish and Wildlife, the National Marine Fisheries Service, the Lower Elwha Klallam Indian Tribe and the Elwha Citizens’ Advisory Committee, evaluate the contribution of removal of the Elwha River Dam toward restoration of the Elwha River ecosystem. Based in its evaluation under this subparagraph, the Panel shall provide recommendations to the Secretary with regard to removal of the Glines Canyon Dam.

          ‘(v) PUBLIC REVIEW- Upon completion of the review of the Secretary’s annual work plan and its evaluation of the removal of the Elwha Dam, the Panel shall submit recommendations on the work plan and removal of the Glines Canyon Dam to the Secretary. The Secretary shall make the Panel’s findings available to the public and subject to public comment.

          ‘(vi) RESPONSIBILITIES OF THE SECRETARY-

            ‘(I) The Secretary shall fully consider the recommendations of the Panel when implementing the Secretary’s annual work plan, and if the Secretary does not incorporate a recommendation of the Panel, the Secretary shall explain in writing its reasons for not accepting Panel recommendations. If the Secretary finds the recommendations inconsistent with this Act, he must notify the Panel, in writing, within 30 days of receiving their recommendations. The Secretary, after consideration of the recommendations of the Panel and other appropriate entities, shall be responsible for making the final recommendations to Congress for appropriations to implement the work plan.

            ‘(II) The Secretary shall take steps to remove the Glines Canyon Dam after receiving a recommendation from the Panel to do so.

          ‘(vii) COST LIMITATION- The cost of this provision shall not exceed $1,000,000 in 1998 dollars.

          ‘(viii) EXPIRATION- This paragraph shall expire 20 years after the date of the enactment of his paragraph.’.

SEC. 2. CONTRACTING OUT PROVISIONS.

    The Secretary shall, to the fullest extent practicable, obtain by procurement from private sources all services necessary to execute the planning, engineering, design, and construction requirements necessary to comply with the provisions of this Act.

SEC. 3. CONFORMING AMENDMENTS.

    The Elwha River Ecosystem and Fisheries Restoration Act (106 Stat. 3173) is amended--

      (1) in section 4--

        (A) in subsection (a)--

          (i) in the matter preceding paragraph (1), by striking ‘Effective’ and all that follows through ‘implement’ and inserting ‘Effective 60 days after date of conveyance of the Projects, the Secretary shall, subject to the availability of appropriated funds, take such actions as are necessary to implement’; and

          (ii) in paragraph (1), by striking ‘referred to in section 3(c)(2) for the removal of the dams and full;’ and inserting ‘for the removal of the Elwha dam and’; and

        (B) in the first sentence of subsection (b), by striking ‘referred to in section 3(c)(2)’;

      (2) in section 5(a), by striking ‘as provided in section 3(e)’;

      (3) in section 6--

        (A) in the first sentence of subsection (a), by striking ‘makes the determination to remove the dams and’; and

        (B) in the first sentence of subsection (b)(1)--

          (i) by striking ‘makes the determination to remove the dams and’; and

          (ii) by inserting ‘of the Elwha Project’ after ‘removal’; and

      (4) in section 7(a)--

        (A) by striking ‘makes the determination to remove the dams and’; and

        (B) by inserting ‘of the Elwha Project’ after ‘removal’.

SEC. 4. COLUMBIA-SNAKE RIVER HYDROELECTRIC SYSTEM PROTECTION.

    (a) IN GENERAL- Under no circumstances shall removal of dams on the Elwha River be considered a precedent of any kind for removal of dams on other rivers.

    (b) CONGRESSIONAL AUTHORIZATION REQUIRED- Except as otherwise provided in this Act, no dam, impoundment, or other facility on the Columbia River or Snake River or their tributaries that is owned or operated by an agency of the United States for flood control, hydroelectric power generation, irrigation, navigation, or other congressionally authorized purpose may be removed or significantly modified structurally, except for reasons of safety or necessary repairs, unless specifically approved by an authorization or appropriation by Congress.