[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2842 Reported in Senate (RS)]






                                                       Calendar No. 988
110th CONGRESS
  2d Session
                                S. 2842

     To require the Secretary of the Interior to carry out annual 
 inspections of canals, levees, tunnels, dikes, pumping plants, dams, 
 and reservoirs under the jurisdiction of the Secretary, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 10, 2008

   Mr. Reid (for himself, Mr. Bingaman, Mr. Salazar, and Mr. Tester) 
introduced the following bill; which was read twice and referred to the 
               Committee on Energy and Natural Resources

                           September 16, 2008

              Reported by Mr. Bingaman, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
     To require the Secretary of the Interior to carry out annual 
 inspections of canals, levees, tunnels, dikes, pumping plants, dams, 
 and reservoirs under the jurisdiction of the Secretary, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Aging Water Infrastructure 
and Maintenance Act''.</DELETED>

<DELETED>SEC. 2. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Inspection.--The term ``inspection'' means an 
        inspection of a project facility carried out by the Secretary--
        </DELETED>
                <DELETED>    (A) to assess and determine the general 
                condition of the project facility; and</DELETED>
                <DELETED>    (B) to estimate the value of property, and 
                the size of the population, that would be at risk if 
                the project facility fails, is breached, or otherwise 
                allows flooding to occur.</DELETED>
        <DELETED>    (2) Project facility.--The term ``project 
        facility'' means any part or incidental feature of a 
        reclamation or irrigation project (including any canal, levee, 
        tunnel, dike, pumping plant, dam, or reservoir) that is--
        </DELETED>
                <DELETED>    (A) under the jurisdiction of the 
                Secretary (including any facility owned by the 
                Department of the Interior); and</DELETED>
                <DELETED>    (B) not covered by the Reclamation Safety 
                of Dams Act of 1978 (43 U.S.C. 506 et seq.).</DELETED>
        <DELETED>    (3) Reserved project facility.--The term 
        ``reserved project facility'' means any project facility at 
        which the Secretary carries out the operation and maintenance 
        of the project facility.</DELETED>
        <DELETED>    (4) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior, acting through the Commissioner of 
        Reclamation.</DELETED>
        <DELETED>    (5) Transferred project facility.--The term 
        ``transferred project facility'' means a project facility the 
        operation and maintenance of which is carried out by a non-
        Federal entity.</DELETED>

<DELETED>SEC. 3. INSPECTION OF PROJECT FACILITIES.</DELETED>

<DELETED>    (a) Inspections.--</DELETED>
        <DELETED>    (1) Initial inspection period.--</DELETED>
                <DELETED>    (A) In general.--In accordance with 
                subparagraph (B), not later than 1 year after the date 
                of enactment of this Act, the Secretary shall conduct 
                an inspection of not less than 75 percent of all 
                project facilities.</DELETED>
                <DELETED>    (B) Selection of project facilities.--In 
                selecting project facilities to inspect during the 
                initial inspection period under subparagraph (A), the 
                Secretary shall take into account the risk posed by 
                each project facility to public health or safety, or 
                property.</DELETED>
        <DELETED>    (2) Final inspection period.--Not later than 2 
        years after the date of enactment of this Act, the Secretary 
        shall conduct an inspection of each project facility not 
        inspected by the Secretary during the initial inspection period 
        under paragraph (1)(A).</DELETED>
        <DELETED>    (3) Reimbursement relating to inspections of 
        transferred project facilities.--Notwithstanding any applicable 
        law (including regulations), with respect to an inspection of a 
        transferred project facility carried out under this subsection, 
        the Secretary may not request from the non-Federal entity that 
        carries out the operation and maintenance of the transferred 
        project facility reimbursement for costs arising from the 
        inspection.</DELETED>
        <DELETED>    (4) Periodic review of inspections.--Not later 
        than 3 years after the date described in paragraph (2) and 
        every 3 years thereafter, the Secretary shall carry out a 
        review of each inspection carried out under paragraphs (1) and 
        (2).</DELETED>
<DELETED>    (b) Use of Inspection Data.--The Secretary shall use the 
data collected by the Secretary through the conduct of the inspections 
under paragraphs (1) and (2) of subsection (a)--</DELETED>
        <DELETED>    (1) to develop for each reserved project facility 
        a detailed schedule for the conduct of regular 
        maintenance;</DELETED>
        <DELETED>    (2) to develop for, and provide to, each non-
        Federal entity that carries out the operation and maintenance 
        of a transferred project facility--</DELETED>
                <DELETED>    (A) a detailed schedule for the conduct of 
                regular maintenance; and</DELETED>
                <DELETED>    (B) a document that contains guidance 
                describing the manner by which to comply with the 
                schedule described in subparagraph (A); and</DELETED>
        <DELETED>    (3) to create a national priorities list that 
        contains a description of each project facility that requires 
        the most urgent maintenance with respect to the infrastructure 
        of the project facility.</DELETED>
<DELETED>    (c) National Priorities List.--</DELETED>
        <DELETED>    (1) Annual review.--Not later than 1 year after 
        the date on which the Secretary develops the national 
        priorities list under subsection (b)(3) and annually 
        thereafter, the Secretary shall carry out a review of each 
        project facility to update the list for the year covered by the 
        review.</DELETED>
        <DELETED>    (2) Publication.--The national priorities list 
        shall be published by the Secretary in the budget justification 
        of the Department of the Interior for the year covered by the 
        national priorities list.</DELETED>
<DELETED>    (d) State Participation.--In conducting an inspection of a 
project facility under subsection (a), the Secretary shall--</DELETED>
        <DELETED>    (1) notify the appropriate State agency of the 
        State in which the project facility is located of the 
        inspection;</DELETED>
        <DELETED>    (2) allow the State agency described in paragraph 
        (1) to participate in the inspection of the project facility; 
        and</DELETED>
        <DELETED>    (3) provide to the State agency described in 
        paragraph (1) a report that describes the results of the 
        inspection of the project facility.</DELETED>

<DELETED>SEC. 4. FEDERAL STANDARDS AND GUIDELINES FOR PROJECT 
              FACILITIES.</DELETED>

<DELETED>    (a) Promulgation of Standards.--</DELETED>
        <DELETED>    (1) In general.--Not later than 180 days after the 
        date of enactment of this Act, in accordance with paragraph 
        (2), the Secretary shall promulgate final regulations to 
        establish standards for the condition and maintenance of 
        project facilities.</DELETED>
        <DELETED>    (2) Contents.--The regulations promulgated by the 
        Secretary under paragraph (1) shall contain a detailed 
        description of each condition with which a project facility 
        shall comply to be eligible to be considered by the Secretary--
        </DELETED>
                <DELETED>    (A) to function properly and in accordance 
                with the objectives of the project facility; 
                and</DELETED>
                <DELETED>    (B) to operate in a manner to ensure, to 
                the maximum extent practicable--</DELETED>
                        <DELETED>    (i) the safety of populations 
                        located in close proximity to the project 
                        facility; and</DELETED>
                        <DELETED>    (ii) the preservation of property 
                        located in close proximity to the project 
                        facility.</DELETED>
<DELETED>    (b) Promulgation of Guidelines.--</DELETED>
        <DELETED>    (1) In general.--Not later than 1 year after the 
        date of enactment of this Act, in accordance with paragraph 
        (2), the Secretary shall promulgate final regulations to 
        establish guidelines--</DELETED>
                <DELETED>    (A) to implement this Act; and</DELETED>
                <DELETED>    (B) to ensure compliance with the 
                regulations promulgated by the Secretary under 
                subsection (a).</DELETED>
        <DELETED>    (2) Contents.--The regulations promulgated by the 
        Secretary under paragraph (1) shall reflect an agency-wide 
        policy with respect to the type, and proportion of, activities 
        relating to the operation and maintenance of a project facility 
        that may be appropriately carried out by a non-Federal entity, 
        taking into account--</DELETED>
                <DELETED>    (A) any economic benefit that may result 
                from the carrying out of the activities by a non-
                Federal entity; and</DELETED>
                <DELETED>    (B) the capabilities of the non-Federal 
                entity to carry out the activities.</DELETED>

<DELETED>SEC. 5. MODIFICATION OF PROJECT FACILITIES.</DELETED>

<DELETED>    (a) In General.--The Secretary shall carry out or, in 
accordance with subsection (b), provide to a non-Federal entity 
financial support to carry out, any modification to a project facility 
that the Secretary determines to be reasonably required to preserve the 
structural safety of the project facility.</DELETED>
<DELETED>    (b) Reimbursement of Costs Arising From the Repair of 
Structurally Deficient Transferred Project Facilities.--</DELETED>
        <DELETED>    (1) Compliant transferred project facilities.--
        </DELETED>
                <DELETED>    (A) In general.--Subject to subparagraph 
                (B), to reimburse a non-Federal entity for costs 
                arising from the carrying out of repair activities to 
                improve the safety of a transferred project facility, 
                the Secretary may provide to the non-Federal entity an 
                amount equal to 65 percent of the costs incurred by the 
                non-Federal entity to carry out the repair 
                activities.</DELETED>
                <DELETED>    (B) Determination of secretary.--The 
                Secretary shall reimburse the non-Federal entity 
                described in subparagraph (A) if the Secretary 
                determines that--</DELETED>
                        <DELETED>    (i) the transferred project 
                        facility of the non-Federal entity is 
                        structurally deficient; and</DELETED>
                        <DELETED>    (ii) the structural deficiency is 
                        not a result of noncompliance with any 
                        regulation promulgated by the Secretary under 
                        section 4.</DELETED>
        <DELETED>    (2) Noncompliant transferred project facilities.--
        </DELETED>
                <DELETED>    (A) In general.--The Secretary may carry 
                out any repair activity that the Secretary determines 
                to be necessary to minimize the risk of imminent harm 
                to public health or safety, or property--</DELETED>
                        <DELETED>    (i) if the Secretary determines 
                        that--</DELETED>
                                <DELETED>    (I) the transferred 
                                project facility is structurally 
                                deficient; and</DELETED>
                                <DELETED>    (II) the structural 
                                deficiency is a result of noncompliance 
                                with any regulation promulgated by the 
                                Secretary under section 4; 
                                and</DELETED>
                        <DELETED>    (ii) after the date on which the 
                        Secretary consults with the non-Federal entity 
                        that carries out the operation and maintenance 
                        of the transferred project facility.</DELETED>
                <DELETED>    (B) Reimbursement.--In accordance with any 
                applicable law (including regulations) or agreement, 
                the Secretary may seek reimbursement from the non-
                Federal entity that carries out the operation and 
                maintenance of the transferred project facility 
                described in subparagraph (A) for costs arising from 
                each repair activity carried out by the Secretary under 
                that subparagraph.</DELETED>

<DELETED>SEC. 6. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    (a) Inspection of Project Facilities.--There are 
authorized to be appropriated to the Secretary to carry out section 3--
</DELETED>
        <DELETED>    (1) $5,000,000 for fiscal year 2009; and</DELETED>
        <DELETED>    (2) $1,500,000 for each of fiscal years 2010 
        through 2013.</DELETED>
<DELETED>    (b) Modification of Project Facilities.--There are 
authorized to be appropriated such sums as are necessary to carry out 
section 5.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Aging Water Infrastructure and 
Maintenance Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Inspection.--The term ``inspection'' means an 
        inspection of a project facility carried out by the Secretary--
                    (A) to assess and determine the general condition 
                of the project facility; and
                    (B) to estimate the value of property, and the size 
                of the population, that would be at risk if the project 
                facility fails, is breached, or otherwise allows 
                flooding to occur.
            (2) Project facility.--The term ``project facility'' means 
        any part or incidental feature of a project, excluding high- 
        and significant-hazard dams, constructed under the 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.).
            (3) Reserved works.--The term ``reserved works'' mean any 
        project facility at which the Secretary carries out the 
        operation and maintenance of the project facility.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior, acting through the Commissioner of 
        Reclamation.
            (5) Transferred works.--The term ``transferred works'' 
        means a project facility, the operation and maintenance of 
        which is carried out by a non-Federal entity, under the 
        provisions of a formal operation and maintenance transfer 
        contract.
            (6) Transferred works operating entity.--The term 
        ``transferred works operating entity'' means the organization 
        which is contractually responsible for operation and 
        maintenance of transferred works.
            (7) Extraordinary operation and maintenance work.--The term 
        ``extraordinary operation and maintenance work'' means major, 
        nonrecurring maintenance to Reclamation-owned or operated 
        facilities, or facility components, that is--
                    (A) intended to ensure the continued safe, 
                dependable, and reliable delivery of authorized project 
                benefits; and
                    (B) greater than 10 percent of the contractor's or 
                the transferred works operating entity's annual 
                operation and maintenance budget for the facility, or 
                greater than $100,000.

SEC. 3. GUIDELINES AND INSPECTION OF PROJECT FACILITIES AND TECHNICAL 
              ASSISTANCE TO TRANSFERRED WORKS OPERATING ENTITIES.

    (a) Guidelines and Inspections.--
            (1) Development of guidelines.--Not later than 1 year after 
        the date of enactment of this Act, the Secretary in 
        consultation with transferred works operating entities shall 
        develop, consistent with existing transfer contracts, specific 
        inspection guidelines for project facilities which are in 
        proximity to urbanized areas and which could pose a risk to 
        public safety or property damage if such project facilities 
        were to fail.
            (2) Conduct of inspections.--Not later than 3 years after 
        the date of enactment of this Act, the Secretary shall conduct 
        inspections of those project facilities, which are in proximity 
        to urbanized areas and which could pose a risk to public safety 
        or property damage if such facilities were to fail, using such 
        specific inspection guidelines and criteria developed pursuant 
        to paragraph (1). In selecting project facilities to inspect, 
        the Secretary shall take into account the potential magnitude 
        of public safety and economic damage posed by each project 
        facility.
            (3) Treatment of costs.--The costs incurred by the 
        Secretary in conducting these inspections shall be 
        nonreimbursable.
    (b) Use of Inspection Data.--The Secretary shall use the data 
collected through the conduct of the inspections under subsection 
(a)(2) to--
            (1) provide recommendations to the transferred works 
        operating entities for improvement of operation and maintenance 
        processes, operating procedures including operation guidelines 
        consistent with existing transfer contracts, and structural 
        modifications to those transferred works;
            (2) determine an appropriate inspection frequency for such 
        nondam project facilities which shall not exceed 6 years; and
            (3) provide, upon request of transferred work operating 
        entities, local governments, or State agencies, information 
        regarding potential hazards posed by existing or proposed 
        residential, commercial, industrial or public-use development 
        adjacent to project facilities.
    (c) Technical Assistance to Transferred Works Operating Entities.--
            (1) Authority of secretary to provide technical 
        assistance.--The Secretary is authorized, at the request of a 
        transferred works operating entity in proximity to an urbanized 
        area, to provide technical assistance to accomplish the 
        following, if consistent with existing transfer contracts:
                    (A) Development of documented operating procedures 
                for a project facility.
                    (B) Development of documented emergency 
                notification and response procedures for a project 
                facility.
                    (C) Development of facility inspection criteria for 
                a project facility.
                    (D) Development of a training program on operation 
                and maintenance requirements and practices for a 
                project facility for a transferred works operating 
                entity's workforce.
                    (E) Development of a public outreach plan on the 
                operation and risks associated with a project facility.
                    (F) Development of any other plans or documentation 
                which, in the judgment of the Secretary, will 
                contribute to public safety and the sage operation of a 
                project facility.
            (2) Costs.--The Secretary is authorized to provide, on a 
        non-reimbursable basis, up to 50 percent of the cost of such 
        technical assistance, with the balance of such costs being 
        advanced by the transferred works operating entity or other 
        non-Federal source. The non-Federal 50 percent minimum cost 
        share for such technical assistance may be in the form of in-
        lieu contributions of resources by the transferred works 
        operating entity or other non-Federal source.

SEC. 4. EXTRAORDINARY OPERATION AND MAINTENANCE WORK PERFORMED BY THE 
              SECRETARY.

    (a) In General.--The Secretary or the transferred works operating 
entity may carry out, in accordance with subsection (b) and consistent 
with existing transfer contracts, any extraordinary operation and 
maintenance work on a project facility that the Secretary determines to 
be reasonably required to preserve the structural safety of the project 
facility.
    (b) Reimbursement of Costs Arising From Extraordinary Operation and 
Maintenance Work.--
            (1) Treatment of costs.--For reserved works, costs incurred 
        by the Secretary in conducting extraordinary operation and 
        maintenance work will be allocated to the authorized 
        reimbursable purposes of the project and shall be repaid within 
        50 years, with interest, from the year in which work undertaken 
        pursuant to this Act is substantially complete.
            (2) Authority of secretary.--For transferred works, the 
        Secretary is authorized to advance the costs incurred by the 
        transferred works operating entity in conducting extraordinary 
        operation and maintenance work and negotiate appropriate 50-
        year repayment contracts with project beneficiaries providing 
        for the return of reimbursable costs, with interest, under this 
        subsection: Provided, however, That no contract entered into 
        pursuant to this Act shall be deemed to be a new or amended 
        contract for the purposes of section 203(a) of the Reclamation 
        Reform Act of 1982 (43 U.S.C. 390cc(a)).
            (3) Determination of interest rate.--The interest rate used 
        for computing interest on work in progress and interest on the 
        unpaid balance of the reimbursable costs of extraordinary 
        operation and maintenance work authorized by this Act shall be 
        determined by the Secretary of the Treasury, as of the 
        beginning of the fiscal year in which extraordinary operation 
        and maintenance work is commenced, on the basis of average 
        market yields on outstanding marketable obligations of the 
        United States with the remaining periods of maturity comparable 
        to the applicable reimbursement period of the project, adjusted 
        to the nearest \1/8\ of 1 percent on the unamortized balance of 
        any portion of the loan.
    (c) Emergency Extraordinary Operation and Maintenance Work.--
            (1) In general.--The Secretary or the transferred works 
        operating entity shall carry out any emergency extraordinary 
        operation and maintenance work on a project facility that the 
        Secretary determines to be necessary to minimize the risk of 
        imminent harm to public health or safety, or property.
            (2) Reimbursement.--The Secretary may advance funds for 
        emergency extraordinary operation and maintenance work and 
        shall seek reimbursement from the transferred works operating 
        entity or benefitting entity upon receiving a written assurance 
        from the governing body of such entity that it will negotiate a 
        contract pursuant to section 4 for repayment of costs incurred 
        by the Secretary in undertaking such work.
            (3) Funding.--If the Secretary determines that a project 
        facility inspected and maintained pursuant to the guidelines 
        and criteria set forth in section 3(a) requires extraordinary 
        operation and maintenance pursuant to paragraph (1), the 
        Secretary may provide Federal funds on a nonreimbursable basis 
        sufficient to cover 35 percent of the cost of the extraordinary 
        operation and maintenance allocable to the transferred works 
        operating entity, which is needed to minimize the risk of 
        imminent harm. The remaining share of the Federal funds 
        advanced by the Secretary for such work shall be repaid under 
        subsection (b).

SEC. 5. RELATIONSHIP TO TWENTY-FIRST CENTURY WATER WORKS ACT.

    Nothing in this Act shall preclude a transferred works operating 
entity from applying and receiving a loan-guarantee pursuant to the 
Twenty-First Century Water Works Act (43 U.S.C. 2401 et seq.).

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act.

SEC. 7. LOAN GUARANTEE FINANCE DEMONSTRATION PROGRAM.

    (a) Definitions.--In this section:
            (1) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (2) Federal loan guarantee and loan guarantee.--The terms 
        ``Federal loan guarantee'' and ``loan guarantee'' have the 
        meaning given the terms in the Twenty-First Century Water Works 
        Act (43 U.S.C. 2401 et seq.).
            (3) Demonstration project and project.--The terms 
        ``demonstration project'' and ``project'' have the meaning 
        given the term ``project'' in section 202 of the Twenty-First 
        Century Water Works Act (43 U.S.C. 2421).
            (4) Lender.--The term ``lender'' has the meaning given the 
        term in section 202 of the Twenty-First Century Water Works Act 
        (43 U.S.C. 2421).
            (5) Loan guarantee subsidy cost.--The term ``loan guarantee 
        subsidy cost'' has the meaning given under the Federal Credit 
        Reform Act of 1990 (2 U.S.C. 661 et seq.) as the annual budget 
        authority needed to cover the portion of credit assistance 
        estimated to be un-recovered because of defaults, expressed as 
        a percentage of the amount of each loan approved for guarantee. 
        This definition shall apply to loan guarantees given to improve 
        facilities to which the Federal Government holds title, as well 
        as to non-Federal facilities.
    (b) Demonstration Program.--
            (1) Identification of demonstration projects.--Within 180 
        days of enactment of this Act, the Secretary shall identify no 
        more than 3 projects as eligible for Federal loan guarantees. 
        The identified projects shall include at least 1 project 
        involving extraordinary operation and maintenance work.
            (2) Memorandum of agreement.--Within 90 days of enactment 
        of this Act, the Secretary shall complete the Interagency 
        Coordination and Cooperation actions in section 209 of the 
        Twenty-First Century Water Works Act (43 U.S.C. 2428).
            (3) Eligibility of projects.--Within 270 days of enactment 
        of this Act, and in accordance with an agreement with the 
        entities seeking to carry-out the projects identified under 
        paragraph (1), the Secretary shall make available to lenders 
        Federal loan guarantees equal to the full cost of projects 
        identified in this section.
            (4) Subsidy.--The loan guarantee subsidy cost shall be the 
        greater of 2 percent or the subsidy determined by the Secretary 
        of Agriculture for covering the Federal cost of guaranteeing 
        loans to lenders financing water projects under the United 
        States Department of Agricultural Rural Development 
        authorities.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this title, to 
remain available until expended.
                                                       Calendar No. 988

110th CONGRESS

  2d Session

                                S. 2842

_______________________________________________________________________

                                 A BILL

     To require the Secretary of the Interior to carry out annual 
 inspections of canals, levees, tunnels, dikes, pumping plants, dams, 
 and reservoirs under the jurisdiction of the Secretary, and for other 
                               purposes.

_______________________________________________________________________

                           September 16, 2008

                       Reported with an amendment