S. 2560 – Reading Mode

Calendar No. 681

115th CONGRESS

2d Session

S. 2560

[Report No. 115–395]

IN THE SENATE OF THE UNITED STATES

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

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.

Short title

This Act may be cited as the Reclamation Title Transfer Act of 2018.

Purpose

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.

Definitions

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 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.

(5)

Reclamation

The term Reclamation means the Bureau of Reclamation.

(6)

Secretary

The term Secretary means the Secretary of the Interior, acting through the Commissioner of Reclamation.

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.

(c)

Interests in water

The Federal interest in associated water rights and uses relating to a conveyed property, if any, shall be conveyed under this section in accordance with applicable State law pursuant to a written agreement between the Secretary and the applicable qualifying entity.

Eligibility criteria

(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—

(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.

Liability

(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.).

Benefits

After a conveyance of an eligible facility under this Act—

(1)

the conveyed property shall no longer be considered to be part of a Reclamation project; and

(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.

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.

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.

(c)

Not treated as project costs

Expenditures made by the Secretary under this Act—

(1)

shall not be a project cost assignable to a Reclamation project; and

(2)

shall be nonreimbursable.

Short title

This Act may be cited as the Reclamation Title Transfer Act of 2018.

Purpose

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.

Definitions

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.

(B)

Exclusions

The term facility does not include a Reclamation project facility, or a portion of a Reclamation project facility—

(i)

that is a reserved works as of the date of enactment of this Act;

(ii)

that generates hydropower marketed by a Federal power marketing administration; or

(iii)

that is managed for recreation under a lease, permit, license, or other management agreement that does contribute to capital repayment.

(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

(A)

as of the date of conveyance under this Act, is the current operator of the eligible facility pursuant to a contract with Reclamation; and

(B)

as determined by the Secretary, has the capacity to continue to manage the eligible facility for the same purposes for which the property has been managed under the reclamation laws.

(6)

Reclamation

The term Reclamation means the Bureau of Reclamation.

(7)

Reclamation project

The term Reclamation project means—

(A)

any reclamation or irrigation project, including incidental features of the project—

(i)

that is authorized by the reclamation laws;

(ii)

that is constructed by the United States pursuant to the reclamation laws; or

(iii)

in connection with which there is a repayment or water service contract executed by the United States pursuant to the reclamation laws; or

(B)

any project constructed by the Secretary for the reclamation of land.

(8)

Reserved works

The term reserved works means any building, structure, facility, or equipment—

(A)

that is owned by the Bureau; and

(B)

for which operations and maintenance are performed, regardless of the source of funding—

(i)

by an employee of the Bureau; or

(ii)

through a contract entered into by the Commissioner.

(9)

Secretary

The term Secretary means the Secretary of the Interior, acting through the Commissioner of Reclamation.

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—

(A)

not later than 90 days before the date on which the Secretary makes the conveyance, the Secretary submits to Congress—

(i)

a written notice of the proposed conveyance; and

(ii)

a description of the reasons for the conveyance; and

(B)

a joint resolution disapproving the conveyance is not enacted before the date on which the Secretary makes the conveyance.

(2)

Consultation

A conveyance under paragraph (1) shall be made by written agreement between the Secretary and the qualifying entity, developed in consultation with any existing water and power customers affected by the conveyance of the eligible facility.

(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)

the Reclamation project or a portion of the Reclamation project remains under Federal ownership; and

(3)

the Secretary enters into an agreement regarding the easement with the applicable qualifying entity.

(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.

Eligibility criteria

(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—

(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)

(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—

(i)

would not have an unmitigated significant effect on the environment;

(ii)

is consistent with the responsibilities of the Secretary—

(I)

in the role as trustee for federally recognized Indian Tribes; and

(II)

to ensure compliance with any applicable international and Tribal treaties and agreements and interstate compacts and agreements;

(iii)

is in the financial interest of the United States;

(iv)

protects the public aspects of the eligible facility, including water rights managed for public purposes, such as flood control or fish and wildlife;

(v)

complies with all applicable Federal and State law; and

(vi)

will not result in an adverse impact on fulfillment of existing water delivery obligations consistent with historical operations and applicable contracts; and

(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

(ii)

the eligible facility is not located in the State of California.

(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.

(c)

Hold harmless

No conveyance under this Act shall adversely impact applicable Federal power rates, repayment obligations, or other project power uses.

Liability

(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).

Benefits

After a conveyance of an eligible facility under this Act—

(1)

the conveyed property shall no longer be considered to be part of a Reclamation project;

(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.

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

(3)

subtitle III of title 54, United States Code.

(b)

Sense of congress

It is the sense of Congress that any Federal permitting and review processes required with respect to a conveyance of an eligible facility under this Act should be completed with the maximum efficiency and effectiveness.

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)

(c)

Not treated as project costs

Expenditures made by the Secretary under this Act—

(1)

shall not be a project cost assignable to a Reclamation project; and

(2)

shall be nonreimbursable.

(d)

Effect

Nothing in this section affects the authority of the Secretary to recover non-Federal costs associated with conveyances under this Act.

November 28, 2018

Reported with an amendment