Calendar No. 681
115th CONGRESS 2d Session |
[Report No. 115–395]
To authorize the Secretary of the Interior to establish a program to facilitate the transfer to non-Federal ownership of appropriate reclamation projects or facilities, and for other purposes.
March 15, 2018
Mr. Risch introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
November 28, 2018
Reported by Ms. Murkowski, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
To authorize the Secretary of the Interior to establish a program to facilitate the transfer to non-Federal ownership of appropriate reclamation projects or facilities, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
The purpose of this Act is to facilitate the transfer of title to eligible facilities to qualifying entities that have completed the repayment of the capital costs of the eligible facilities through capital repayment contracts with Reclamation.
In this Act:
(1) CONVEYED PROPERTY.—The term “conveyed property” means an eligible facility that has been conveyed to a qualifying entity under section 4.
(2) ELIGIBLE FACILITY.—The term “eligible facility” means a facility that meets the criteria for potential transfer established under section 5(a).
(A) IN GENERAL.—The term “facility” means—
(i) a Reclamation project or facility; or
(ii) a portion of a Reclamation project or facility.
(B) INCLUSIONS.—The term “facility” includes a dam or appurtenant works, infrastructure, a recreational facility, a building, a distribution and drainage works, and associated land or interest in land or water.
(C) EXCLUSIONS.—The term “facility” does not include a Reclamation project or facility, or a portion of a Reclamation project or facility, that—
(i) generates hydropower marketed by a Federal power marketing administration; or
(ii) is managed for recreation under a lease, permit, license, or other management agreement that does contribute to capital repayment.
(4) QUALIFYING ENTITY.—The term “qualifying entity” means an agency of a State or political subdivision of a State, a joint action or powers agency, a water users association, or an Indian Tribe or Tribal utility authority that—
(A) as of the date of conveyance under this Act, is the current operator of the conveyed facility pursuant to a contract with Reclamation; and
(B) as determined by the Secretary, has the capacity to continue to manage the conveyed property for the same purposes for which the property has been managed under the reclamation laws.
SEC. 4. Authorization of transfers of titles to eligible facilities.
(a) In general.—Subject to the requirements of this section, the Secretary, without further authorization from Congress, may convey to a qualifying entity all right, title, and interest of the United States in and to any eligible facility, if—
(1) not later than 90 days before the date on which the Secretary makes the conveyance, the Secretary submits to Congress—
(A) a written notice of the proposed conveyance; and
(B) a description of the reasons for the conveyance; and
(2) a joint resolution disapproving the conveyance is not enacted before the date on which the Secretary makes the conveyance.
(b) Reservation of easement.—The Secretary may reserve an easement over a conveyed property if—
(1) the Secretary determines that the easement is necessary for the management of any interests retained by the Federal Government under this Act;
(2) a portion of the conveyed property remains under Federal ownership; and
(3) the Secretary enters into an agreement regarding the easement with the applicable qualifying entity.
(a) Establishment.—The Secretary shall establish criteria for determining whether a facility is eligible for conveyance under this Act.
(1) AGREEMENT OF QUALIFYING ENTITY.—The criteria established under subsection (a) shall include a requirement that a qualifying entity shall agree—
(A) to accept title to the eligible facility;
(B) to use the eligible facility for substantially the same purposes for which the eligible facility is being used at the time the Secretary evaluates the potential transfer; and
(C) to provide, as consideration for the assets to be conveyed, compensation to the reclamation fund established by the first section of the Act of June 17, 1902 (32 Stat. 388, chapter 1093), in an amount that is the equivalent of the net present value of any repayment obligation to the United States or other income stream that the United States derives from the eligible facility to be transferred, as of the date of the transfer.
(2) DETERMINATIONS OF SECRETARY.—The criteria established under subsection (a) shall include a requirement that the Secretary shall—
(A) be able to enter into an agreement with the qualifying entity with respect to the legal, institutional, and financial arrangements relating to the conveyance; and
(B) determine that the proposed transfer—
(i) would not have an unmitigated significant effect on the environment;
(ii) is consistent with the responsibilities of the Secretary—
(I) to protect land and water resources held in trust for federally recognized Indian Tribes; and
(II) to ensure compliance with any applicable international treaties and interstate compacts; and
(iii) is in the financial interest of the United States.
(3) STATUS OF RECLAMATION LAND.—The criteria established under subsection (a) shall require that any land to be conveyed out of Federal ownership under this Act is—
(A) land acquired by the Secretary; or
(B) land withdrawn by the Secretary, only if—
(i) the Secretary determines in writing that the withdrawn land is encumbered by facilities to the extent that the withdrawn land is unsuitable for return to the public domain; and
(ii) the qualifying entity agrees to pay fair market value based on historical or existing uses for the withdrawn land to be conveyed.
(a) In general.—Except as provided in subsection (b), effective beginning on the date of conveyance of any eligible facility under this Act, the United States shall not be liable under any law for damages of any kind arising out of any act, omission, or occurrence based on the prior ownership or operation of the conveyed property.
(b) Limitation.—The United States shall retain the responsibilities and authorities of the United States for a conveyed property based on the prior ownership or operation of the conveyed property by the United States under Federal environmental laws, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
After a conveyance of an eligible facility under this Act—
(2) if the transfer of an entire Reclamation project occurs pursuant to such a conveyance, the qualifying entity to which the conveyed property is conveyed shall not be eligible to receive any benefits, including project power, with respect to the conveyed property, except for any benefit that would be available to a similarly situated entity with respect to property that is not a part of a Reclamation project.
SEC. 8. Compliance with other laws.
(a) Operation of conveyed property.—After conveyance of an eligible facility under this Act, the qualifying entity to which the conveyed property is conveyed shall comply with all applicable Federal, State, and local laws (including regulations) in the operation of the conveyed property.
(b) Federal environmental laws applicable to title transfer.—For purposes of achieving compliance with Federal environmental laws (including regulations) applicable to a transfer of title under this Act, the Federal agency action shall be limited to the change in ownership status of an applicable eligible facility if the ability of the applicable qualifying entity to alter the existing uses or operations of the conveyed property after the conveyance is limited due to the fact that—
(1) any modification to the purpose or location of applicable water use would require a modification of a State-issued water right that requires action by the State in which the eligible facility is located; or
(2) any modification to the purpose or operation of the eligible facility requires an action by a qualifying entity that is constrained by applicable requirements that were established—
(A) by an applicable State legislature, State regulatory agency, publicly elected board, appointed board, or other related entity; and
(B) through a public process or other, similar procedure that constrains, or imposes public scrutiny or additional accountability on, the ability of the qualifying entity to carry out such a modification.
SEC. 9. Authorization of appropriations.
(a) In general.—There are authorized to be appropriated to carry out this Act such sums as are necessary.
(b) Use of amounts.—Amounts made available under subsection (a) may be used—
(1) to carry out any investigations appropriate to carry out this Act; and
(2) to pay any other costs associated with conveyances under this Act, including an appropriate Federal share, as determined by the Secretary, of the costs of compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other applicable law.
This Act may be cited as the “Reclamation Title Transfer Act of 2018”.
The purpose of this Act is to facilitate the transfer of title to Reclamation project facilities to qualifying entities on the completion of repayment of capital costs.
In this Act:
(1) CONVEYED PROPERTY.—The term “conveyed property” means an eligible facility that has been conveyed to a qualifying entity under section 4.
(2) ELIGIBLE FACILITY.—The term “eligible facility” means a facility that meets the criteria for potential transfer established under section 5(a).
(3) FACILITY.—
(A) IN GENERAL.—The term “facility” includes a dam or appurtenant works, canal, lateral, ditch, gate, control structure, pumping station, other infrastructure, recreational facility, building, distribution and drainage works, and associated land or interest in land or water.
(4) PROJECT USE POWER.—The term “project use power” means the electrical capacity, energy, and associated ancillary service components required to provide the minimum electrical service needed to operate or maintain Reclamation project facilities in accordance with the authorization for the Reclamation project.
(5) QUALIFYING ENTITY.—The term “qualifying entity” means an agency of a State or political subdivision of a State, a joint action or powers agency, a water users association, or an Indian Tribe or Tribal utility authority that—
(7) RECLAMATION PROJECT.—The term “Reclamation project” means—
SEC. 4. Authorization of transfers of title to eligible facilities.
(a) Authorization.—
(1) IN GENERAL.—Subject to the requirements of this Act, the Secretary, without further authorization from Congress, may, on application of a qualifying entity, convey to a qualifying entity all right, title, and interest of the United States in and to any eligible facility, if—
(b) Reservation of easement.—The Secretary may reserve an easement over a conveyed property if—
(1) the Secretary determines that the easement is necessary for the management of any interests retained by the Federal Government under this Act;
(c) Interests in water.—If a Federal interest in water rights and uses relating to a conveyed property is to be conveyed under this section with the conveyed property, the Federal interest in water rights and uses shall be quantified and conveyed by an independent written agreement, subject to applicable public participation requirements.
(a) Establishment.—The Secretary shall establish criteria for determining whether a facility is eligible for conveyance under this Act.
(b) Minimum requirements.—
(1) AGREEMENT OF QUALIFYING ENTITY.—The criteria established under subsection (a) shall include a requirement that a qualifying entity shall agree—
(B) to use the eligible facility for substantially the same purposes for which the eligible facility is being used at the time the Secretary evaluates the potential transfer; and
(C) to provide, as consideration for the assets to be conveyed, compensation to the reclamation fund established by the first section of the Act of June 17, 1902 (32 Stat. 388, chapter 1093), in an amount that is the equivalent of the net present value of any repayment obligation to the United States or other income stream that the United States derives from the eligible facility to be transferred, as of the date of the transfer.
(2) DETERMINATIONS OF SECRETARY.—The criteria established under subsection (a) shall include a requirement that the Secretary shall—
(A) be able to enter into an agreement with the qualifying entity with respect to the legal, institutional, and financial arrangements relating to the conveyance;
(B) determine that the proposed transfer—
(C) if the eligible facility proposed to be transferred is a dam or diversion works diverting water from a water body containing a species listed as a threatened species or an endangered species or critical habitat under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), determine that—
(i) (I) the eligible facility would remain subject to consultation requirements under section 7(a)(2) of that Act (16 U.S.C. 1536(a)(2));
(II) on completion of a biological assessment under section 402.12 of title 50, Code of Federal Regulations (or successor regulations), or an informal consultation under section 402.13 of title 50, Code of Federal Regulations (or successor regulations), the Commissioner of Reclamation and the Director of the United States Fish and Wildlife Service or the Director of the National Marine Fisheries Service, as applicable, have concurred in writing, consistent with section 402.14(b)(1) of title 50, Code of Federal Regulations (or successor regulations), that no action associated with the eligible facility is likely to adversely affect any species listed as a threatened species or an endangered species or critical habitat under that Act (16 U.S.C. 1531 et seq.); or
(III) the qualifying entity completed a habitat conservation plan pursuant to section 10 of that Act (16 U.S.C. 1539) prior to the transfer; and
(3) STATUS OF RECLAMATION LAND.—The criteria established under subsection (a) shall require that any land to be conveyed out of Federal ownership under this Act is—
(a) In general.—Effective on the date of conveyance of any eligible facility under this Act, the United States shall not be held liable by any court for damages of any kind arising out of any act, omission, or occurrence relating to the eligible facility, other than damages caused by acts of negligence committed by the United States or by agents or employees of the United States prior to the date of the conveyance.
(b) Effect.—Nothing in this section increases the liability of the United States beyond that currently provided in chapter 171 of title 28, United States Code (commonly known as the “Federal Tort Claims Act”).
After a conveyance of an eligible facility under this Act—
(2) except as provided in paragraph (3), the qualifying entity to which the conveyed property is conveyed shall not be eligible to receive any benefits, including project use power, with respect to the conveyed property, except for any benefit that would be available to a similarly situated entity with respect to property that is not a part of a Reclamation project; and
(3) the qualifying entity to which the conveyed property is conveyed may be eligible to receive project use power if—
(A) the Secretary determines that the qualifying entity has historically been responsible for a proportionate share of the operation and maintenance expenses for Federal facilities that generate and transmit, if applicable, power used for the delivery of Reclamation project water; and
(B) the Secretary and the qualifying entity enter into an agreement under which the qualifying entity agrees to continue to be responsible for a proportionate share of operation and maintenance and capital costs for the Federal facilities that generate and deliver, if applicable, power used for delivery of Reclamation project water after the date of conveyance, in accordance with Reclamation project use power rates.
SEC. 8. Compliance with other laws.
(a) In general.—Before conveying an eligible facility under this Act, the Secretary shall comply with all applicable Federal environmental laws, including—
(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
SEC. 9. Authorization of appropriations.
(a) In general.—There are authorized to be appropriated to carry out this Act such sums as are necessary.
(b) Use of amounts.—Amounts made available under subsection (a) may be used—
(2) to pay any other costs associated with conveyances under this Act, including an appropriate Federal share, as determined by the Secretary, of the costs of compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other applicable law.
Calendar No. 681 | |||||
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[Report No. 115–395] | |||||
A BILL | |||||
To authorize the Secretary of the Interior to establish a program to facilitate the transfer to
non-Federal ownership of appropriate reclamation projects or facilities,
and for other purposes. | |||||
November 28, 2018 | |||||
Reported with an amendment |