[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4691 Introduced in House (IH)]







108th CONGRESS
  2d Session
                                H. R. 4691

 To authorize the Secretary of the Interior to engage in a feasibility 
  study relating to long-term water needs for the area served by the 
     Fryingpan-Arkansas Project, Colorado, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 24, 2004

Mr. Hefley (for himself, Mr. Beauprez, and Mr. Tancredo) introduced the 
    following bill; which was referred to the Committee on Resources

_______________________________________________________________________

                                 A BILL


 
 To authorize the Secretary of the Interior to engage in a feasibility 
  study relating to long-term water needs for the area served by the 
     Fryingpan-Arkansas Project, Colorado, 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. PURPOSES.

    The purposes of this Act are as follows:
            (1) To authorize the Secretary of the Interior (hereinafter 
        referred to as ``the Secretary'') to engage in a feasibility 
        study relating to present and future water supply and related 
        storage requirements of the area served by the Fryingpan-
        Arkansas Project, Colorado.
            (2) To amend the Act of August 16, 1962, as amended (76 
        Stat. 389 et seq.), to authorize the Secretary to enter into 
        contracts for the use of excess storage and conveyance capacity 
        of the Fryingpan-Arkansas Project, Colorado, for nonproject 
        water for municipal, water banking, and other beneficial 
        purposes.

SEC. 2. FEASIBILITY STUDY.

    (a) Authorized.--Pursuant to Federal reclamation law (the Act of 
June 7, 1902, and all Acts amendatory thereof or supplementary 
thereto), the Secretary, through the Bureau of Reclamation, is 
authorized to conduct a feasibility study to determine the most 
feasible method of meeting the present and future water supply and 
related storage requirements within the area served by the Fryingpan-
Arkansas Project, including the potential enlargement of Fryingpan-
Arkansas facilities. In conducting such study, the Secretary shall take 
into consideration the Preferred Storage Options Plan Report published 
September 21, 2000, by the Southeastern Colorado Water and Storage 
Needs Assessment Enterprise and Final PSOP Implementation Committee 
Report dated April 19, 2001 (hereinafter referred to as the ``PSOP 
Reports''), the intergovernmental agreement dated May 27, 2004, among 
the City of Pueblo, the City of Aurora, the Southeastern Colorado Water 
Conservancy District, the City of Fountain, the City of Colorado 
Springs, and the Board of Water Works of Pueblo, Colorado, and the need 
to ensure compliance with the Arkansas River Compact as executed by the 
States of Colorado and Kansas on December 14, 1948.
    (b) Funding.--Before funds are expended for the study authorized by 
this section, the Southeastern Colorado Water Activity Enterprise shall 
first agree to participate in the feasibility study and to fund, at a 
minimum, 50 percent of the costs of such study. The Southeastern 
Colorado Water Activity Enterprise's share of the costs may be provided 
partly or wholly in the form of services directly related to the 
conduct of the study, as determined by the Secretary. Costs incurred 
prior to the enactment of this Act to develop the PSOP Reports may be 
credited toward such Enterprise's share of the costs of the feasibility 
study, as determined by the Secretary.
    (c) Study To Be Submitted.--The Secretary shall submit the 
feasibility study authorized by this section to the President and the 
President Pro Tempore of the Senate and the Speaker of the House of 
Representatives.
    (d) Further Authorization Required for Certain Expenditures.--No 
funds shall be expended for the construction of enlargements, or any 
other alternative identified in the feasibility study authorized by 
this section for which authority does not currently exist, without 
further authorization by Congress.
    (e) Authorization of Appropriations.--There is authorized to be 
appropriated $4,000,000 to conduct the feasibility study authorized by 
this section.

SEC. 3. SECRETARY AUTHORIZED TO ENTER INTO CONTRACTS FOR THE USE OF 
              EXCESS STORAGE AND CONVEYANCE CAPACITY OF THE FRYINGPAN-
              ARKANSAS PROJECT, COLORADO.

    The Act of August 16, 1962 (76 Stat. 389 et seq., as amended), is 
amended by adding at the end the following new sections:
    ``Sec. 8. (a)(1) Except as provided in section 9, and subject to 
the provisions of this Act, including, but not limited to section 5, 
and all other applicable Federal statutes, the Secretary is authorized 
to enter into contracts with any entity, private or public, including 
those operating or participating in a water bank established pursuant 
to Colorado law (hereinafter referred to as an ``entity''), for the use 
of excess capacity in the Fryingpan-Arkansas Project for the purpose of 
diverting, storing, impounding, pumping, exchanging, or conveying 
nonproject water for irrigation, domestic, municipal and industrial, or 
any other beneficial purpose.
    ``(2) In entering into such contracts, the Secretary shall take 
into consideration the Preferred Storage Options Plan Report published 
September 21, 2000, by the Southeastern Colorado Water and Storage 
Needs Assessment Enterprise and Final PSOP Implementation Committee 
Report dated April 19, 2001 (hereinafter referred to as the ``PSOP 
Reports''), the intergovernmental agreement dated May 27, 2004, among 
the City of Pueblo, the City of Aurora, the Southeastern Colorado Water 
Conservancy District, the City of Fountain, the City of Colorado 
Springs, and the Board of Water Works of Pueblo, Colorado, and the need 
to ensure compliance with the Arkansas River Compact as executed by the 
States of Colorado and Kansas on December 14, 1948.
    ``(b) The Secretary is authorized to enter into contracts pursuant 
to this section provided that--
            ``(1) such contracts shall not impair or otherwise 
        interfere with--
                    ``(A) the Fryingpan-Arkansas Project's authorized 
                purposes;
                    ``(B) the ability of those with prior Fryingpan-
                Arkansas Project contracts to meet such contractual 
                obligations to the Secretary as existed at the time of 
                the execution of a contract pursuant to the authority 
                of this section;
                    ``(C) such contractual obligations as the Secretary 
                has to Fryingpan-Arkansas Project contractors at the 
                time of the execution of a contract under the authority 
                of this title;
                    ``(D) the storage allocations and limitations 
                pursuant to Contract No. 5-07-70-W0086, as amended, 
                renewed or superseded, between the Southeastern 
                Colorado Water Conservancy District and the United 
                States, and the allocation principles adopted by the 
                Southeastern Colorado Water Conservancy District on 
                November 29, 1979, and confirmed by the District Court 
                of Pueblo County in Civil Action No. 40487 by decree 
                dated December 18, 1979, including any subsequent 
                modifications made by the District that are confirmed 
                by the District Court;
                    ``(E) the yield of the Fryingpan-Arkansas Project 
                from its West Slope and East Slope water rights; or
                    ``(F) the ability of individuals or entities 
                located within the natural basin of the Arkansas River 
                within Colorado to enter into contracts for the use of 
                excess water storage and conveyance capacity pursuant 
                to section 8 of this Act or any other authority under 
                Reclamation law.
            ``(2) To the extent such contracts are with an entity that 
        does not have an allocation of Project carry over storage space 
        pursuant to the allocation principles adopted by the 
        Southeastern Colorado Water Conservancy District on November 
        29, 1979, and confirmed by the District Court of Pueblo County 
        in Civil Action No. 40487 by decree dated December 18, 1979, 
        including any subsequent modifications made by the District 
        that are confirmed by the District Court (`nonqualified' 
        entities); the contracts shall not impair or otherwise 
        interfere with the ability of qualified entities located within 
        the natural basin of the Arkansas River within Colorado to 
        enter into contracts for the use of excess water storage and 
conveyance capacity pursuant to this section 8. Except as provided in 
section 9, before entering into such a contract with an individual or 
entity that will use water stored or conveyed under such contact 
outside of the natural basin of the Arkansas River within Colorado, the 
Secretary shall provide the Southeastern Colorado Water Conservancy 
District a first right of refusal, exercisable within 90 days, to enter 
into contracts for the use of excess water storage and conveyance 
capacity made available to the individual or entity that will use water 
stored or conveyed under such contract outside of the natural basin of 
the Arkansas River within Colorado. In no event shall the Southeastern 
Colorado Water Conservancy District enter into a subcontract with an 
individual or entity that will use water stored or conveyed under such 
contract outside of the natural basin of the Arkansas River.
            ``(3) Nothing in sections 8 through 12 of this Act shall--
                    ``(A) increase diversions of Project water from the 
                natural basin of the Colorado River;
                    ``(B) increase diversions of nonproject water from 
                the natural basin of the Colorado River within Colorado 
                into another river basin for delivery or storage, 
                except as provided in section 12 of this Act;
                    ``(C) affect in any way contracts, or the renewal 
                of contracts, entered into pursuant to authority other 
                than section 8 of this Act, including, but not limited 
                to, Contract Nos. 00XX6C0049 and 009D6C0048 between the 
                Board of Water Works of Pueblo, Colorado, and the 
                United States, or the renewal of Contact Nos. 
                00XX6C0049 and 009D60048; Contract No. 6-07-70-W0090 
                (formerly Agreement No. 14-06-700-6019) between the 
                Cities of Aurora and Colorado Springs and the United 
                States; Contract No. 7-07-7010056 between Twin Lakes 
                Reservoir and Canal Company and the United States; 
                Contract No. 9-07-70-W0099 between the United States 
                and High Line Canal Company; and Contract No. 
                039E6C0117 between Board of Water Works of Pueblo and 
                the United States; or
                    ``(D) affect the interpretation or implementation 
                of existing law or legislation for any other 
                congressionally authorized water project.
    ``(c) Subject to the provisions of subsection (b), the Secretary 
may enter into contracts authorized by this section upon such terms and 
conditions as the Secretary may determine to be just and equitable. The 
term of any such contract shall be for such period, not to exceed 40 
years, as the Secretary deems appropriate. Upon expiration, such 
contracts may be renewed upon such terms and conditions as may be 
mutually agreeable to the Secretary and the contractor for the use of 
excess capacity.
    ``(d) The Secretary shall establish such charges, subject to 
subsection (e), for the use of excess capacity as the Secretary deems 
appropriate. Such charges shall consist of the following components:
            ``(1) One component shall reflect either--
                    ``(A) construction costs based on either the 
                original cost, the estimated current costs, or other 
                appropriate measure of costs, including interest as 
                provided in paragraph (3) of this subsection, of 
                constructing the Fryingpan-Arkansas Project facilities 
                involved; or
                    ``(B) another appropriate rate, such as a market 
                rate.
            ``(2) A second, separate component shall reflect an 
        appropriate charge for operating, maintaining, and replacing 
        these same facilities.
            ``(3) Except in the case of a market based rate, when 
        excess capacity in Fryingpan-Arkansas Project facilities will 
        be used to divert, store, impound, pump, or convey nonproject 
        water for municipal and industrial purposes, an interest 
        component using the rate determined by the Secretary in 
        accordance with the Water Supply Act of 1958 (43 U.S.C. 390b).
    ``(e) All charges established pursuant to this section shall be 
just and equitable as to the rates paid by those entities that receive 
project water from the Fryingpan-Arkansas Project facilities. The 
project contractor rate shall be the baseline from which adjustments 
can be made based on the particular circumstances involved in the 
contract.
    ``(f) Prior to the execution of any contracts under this section, 
the Secretary shall execute an agreement with the Southeastern Colorado 
Water Activity Enterprise to provide guidelines for the terms to be 
contained in the contracts executed pursuant to this section. Such 
guidelines shall appropriately address impacts associated with water 
operations under the contracts, surcharges established by the 
Enterprise, reimbursement of costs incurred, and water quality 
monitoring, as identified by the Southeastern Colorado Water Activity 
Enterprise and the Secretary.
    ``(g) Any contract executed under this section shall contain a 
provision pursuant to which the contracting entity agrees to cooperate 
in a voluntary flow management program designed to maintain a target 
minimum flow of 100 cfs just below Pueblo Dam.
    ``Sec. 9. (a) The Secretary of the Interior may enter into new and 
renewal contracts with the City of Aurora, Colorado, or an enterprise 
of the City, for a term not to exceed the term referenced in section 
8(c), for use of storage or carrying capacity excess of the 
requirements of the Fryingpan-Arkansas Project, Colorado, for the 
purpose of impounding, storage, and carriage of nonproject water for 
domestic, municipal, industrial and other beneficial purposes. Such 
contracts shall be--
            ``(1) limited to the storage and carriage of waters 
        appropriated from the Arkansas River held by the City of 
        Aurora, Colorado, or an enterprise of the City that--
                    ``(A) are decreed water rights and owned by the 
                City of Aurora, Colorado, or an enterprise of the City 
                as of December 7, 2001;
                    ``(B) are water rights described in a Colorado 
                Water Court water rights application pending as of 
                December 7, 2001, or an amendment or refiling does not 
                increase the draft of water from the Arkansas Basin 
                that would have been available to the City of Aurora, 
                Colorado, or an enterprise of the City under the 
                original application;
                    ``(C) result from water lease agreements existing 
                as of December 7, 2001, including any renewal or 
                replacement contact for no more than the existing 
                amount of water;
                    ``(D) result from interruptible supply agreements 
                or water bank transactions authorized under Colorado 
                law, and operating no more than five calendar years 
                during any period of ten consecutive calendar years; or
                    ``(E) is traded to, or exchanged with, the City of 
                Aurora, Colorado, or an enterprise of the City for one 
                of the foregoing items (A) through (C) as long as such 
                trade or exchange does not increase the draft of water 
                from the Arkansas River Basin that would have been 
                available to the City of Aurora, Colorado, or an 
                enterprise of the City under subparagraphs (A) through 
                (C);
            ``(2) are for water obtained by the City of Aurora, 
        Colorado, or an enterprise of the City from the Colorado River 
        consistent with section 12;
            ``(3) contain a provision pursuant to which the City of 
        Aurora agrees to cooperate in a voluntary flow management 
        program designed to maintain a target minimum flow of 100 cfs 
        just below Pueblo dam;
            ``(4) include a provision whereby the City of Aurora, 
        Colorado, or an enterprise of the City, agrees to participate 
        in a long-term water quality monitoring and management program 
        as outlined in the Implementation Committee Report dated April 
        19, 2001; and
            ``(5) take into consideration the need to ensure compliance 
        with the Arkansas River Compact as executed by the States of 
        Colorado and Kansas on December 14, 1948.
    ``(b) Prior to the execution of any renewal contact with the City 
of Aurora, the Secretary of the Interior shall execute an Agreement 
with the Southeastern Colorado Water Activity Enterprise, which 
agreement shall provide guidelines for the terms to be contained in a 
renewal contact executed pursuant to this section. Such guidelines 
shall appropriately address those impacts associated with water 
operations under the contracts, such as storage and convenience 
charges, surcharges established by the Enterprise, reimbursement of 
costs incurred, and water quality monitoring, as identified by the 
Southeastern Colorado Enterprise and the Secretary.
    ``(c) Any contract executed under the authority of subsection (a) 
or (b) shall be in compliance with the provisions of section 8(b)(1).
    ``(d) The Secretary shall establish such charges under this section 
9 in a manner consistent with the provisions of section 8(d) and (e).
    ``Sec. 10. (a) Except as provided under subsection (b), all revenue 
generated pursuant to contracts executed under sections 8 and 9 shall 
be credited as follows:
            ``(1) That portion of the charges established pursuant to 
        section 8(d) and 9(d) which is attributable to the component 
        which reflects interest shall be credited as a general credit 
        to the Reclamation Fund.
            ``(2) That portion of the charges established pursuant to 
        section 8(d)(2) and the comparable provision of 9(d) shall be 
        credited against the appropriate project operation, 
        maintenance, and replacement costs.
            ``(3) All remaining revenues in excess of those in 
        paragraphs (1) and (2) of this subsection shall be credited as 
        follows:
                    ``(A) If reimbursable Federal construction costs 
                are outstanding for the Fryingpan-Arkansas project at 
                the time revenues are received, then all remaining 
                revenues shall be covered into the Reclamation Fund and 
                credited to the Fryingpan-Arkansas Project. All 
                remaining revenues shall be credited against such 
                reimbursable costs in a manner the Secretary deems to 
                be just and equitable as to the reimbursable purposes 
                which are involved. The revenues so credited shall not 
                be applied so as to reduce the amount of the current 
                annual payments due the Secretary from the project 
                contractors or any other parties responsible for paying 
                outstanding reimbursable project construction costs 
                unless and until the party's current annual payment due 
                exceeds the remaining reimbursable construction costs 
                payable by the party.
                    ``(B) If no reimbursable Federal Fryingpan-Arkansas 
                Project construction costs are outstanding at the time 
                revenues are received, then all remaining revenues 
                shall be credited to a separate fund, established in 
                the Treasury of the United States, to be known as the 
                Fryingpan-Arkansas Project Fund, which shall remain 
                available, without appropriation, for new federally 
                funded construction on the project, including, but not 
                limited to, additions, rehabilitations and betterments, 
                safety of dams modifications, and major capital 
                replacements, applied against the Federal reimbursable 
                costs, if any, of such new construction in such manner 
                as the Secretary deems just and equitable as to the 
                Federal reimbursable project purposes involved. No 
                expenditures may be made from the Fryingpan-Arkansas 
                Project Fund without the express written consent of the 
                Secretary and the Enterprise.
    ``(b) Direct Payments.--Payments generated pursuant to contract 
terms established under section 8(f) and the comparable provisions of 
9(b) shall be made directly by the contractors to the Southeastern 
Colorado Water Activity Enterprise.
    ``Sec. 11. (a) Nonproject water diverted, stored, impounded, 
pumped, exchanged, or conveyed under a contract entered into pursuant 
to section 8 or 9 shall be exempt from any acreage limitation 
provisions of the Act of June 17, 1902 (32 Stat. 388), and Acts 
amendatory thereof and supplementary thereto including, but not limited 
to, the Warren Act of 1911, the Reclamation Reform Act of 1982 (96 
Stat. 1263; 43 U.S.C. 390aa et seq.) and from any farm unit size 
limitations established pursuant to section 4(c)(5) of the Act of 
August 11, 1939 (Chapter 717; 16 U.S.C. 590z-2(c)(5)).
    ``(b) Notwithstanding subsection (a), if such nonproject water is 
commingled with project water in Reclamation project facilities, and 
the resulting commingled supply is used to irrigate lands in a project 
contractor's service area, then such commingled water shall bear the 
same acreage limitations or farm unit size limitations as the project 
water unless--
            ``(1) contract provisions are in effect which provide that 
        project or nonproject water, or both, will be accounted for on 
        a quantitative basis, that project water will not be delivered 
        to ineligible land, and that appropriate charges, as determined 
        by the Secretary, will be paid for the project water; and
            ``(2) the charges for the use of the excess capacity 
        include an appropriate interest component, as determined by the 
        Secretary.
    ``Sec. 12. (a) Excess water storage capacity of the Fryingpan-
Arkansas project to divert, store, impound, pump, or convey nonproject 
water made available under contracts executed pursuant to the 
provisions of sections 8 and 9 shall not be utilized so as to increase 
diversion of nonproject water from the natural basin of the Colorado 
River within Colorado into another river basin for delivery or storage 
unless--
            ``(1) the diversion is the subject of a decree entered 
        prior to the effective date of this section for which no new 
        infrastructure or legal approvals are necessary to divert the 
        water out of the natural basin;
            ``(2) the diversion is the subject of an agreement in 
        existence on the date of the enactment of this section, 
        contemplating additional diversions diverted through or stored 
        in the facilities authorized by this Act, between the 
        beneficiary of such transbasin diversion and the water 
        conservation district, as defined under Colorado law, from 
        within whose boundaries the waters are proposed for diversion;
            ``(3) the diversion is the subject of an intergovernmental 
        agreement or other contractual arrangement executed after the 
        date of the enactment of this section, between the beneficiary 
        of such transbasin diversion and the water conservation 
        district, as defined under Colorado law, from within whose 
        boundaries the waters are proposed for diversion; or
            ``(4) the beneficiary of such transbasin diversion provides 
        compensatory storage or alternate water supply in an amount 
        equal to the quantity diverted out of the basin for the benefit 
        of the water conservation district, as defined under Colorado 
        law, from within whose boundaries the waters are proposed for 
        diversion.
    ``(b) Prior to executing any agreement, or arrangement or agreement 
for provision of compensatory storage or alternative water supply, that 
allows for increased diversions of nonproject water as described in 
subsection (a), the parties to such agreements or arrangements shall 
submit the agreement or arrangement to the Secretary, who, within 30 
days, shall submit such agreement or arrangement to the President Pro 
Tempore of the Senate and the Speaker of the House of Representatives 
for a period of not less than 60 days.
    ``(c) This section shall not be considered as precedent for any 
other congressionally authorized project.''.
                                 <all>