[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2560 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 681
115th CONGRESS
  2d Session
                                S. 2560

                          [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.


_______________________________________________________________________


                   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.

    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 ``Reclamation Title Transfer 
Act of 2018''.</DELETED>

<DELETED>SEC. 2. PURPOSE.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Conveyed property.--The term ``conveyed 
        property'' means an eligible facility that has been conveyed to 
        a qualifying entity under section 4.</DELETED>
        <DELETED>    (2) Eligible facility.--The term ``eligible 
        facility'' means a facility that meets the criteria for 
        potential transfer established under section 5(a).</DELETED>
        <DELETED>    (3) Facility.--</DELETED>
                <DELETED>    (A) In general.--The term ``facility'' 
                means--</DELETED>
                        <DELETED>    (i) a Reclamation project or 
                        facility; or</DELETED>
                        <DELETED>    (ii) a portion of a Reclamation 
                        project or facility.</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (C) Exclusions.--The term ``facility'' 
                does not include a Reclamation project or facility, or 
                a portion of a Reclamation project or facility, that--
                </DELETED>
                        <DELETED>    (i) generates hydropower marketed 
                        by a Federal power marketing administration; 
                        or</DELETED>
                        <DELETED>    (ii) is managed for recreation 
                        under a lease, permit, license, or other 
                        management agreement that does contribute to 
                        capital repayment.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (5) Reclamation.--The term ``Reclamation'' means 
        the Bureau of Reclamation.</DELETED>
        <DELETED>    (6) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior, acting through the Commissioner of 
        Reclamation.</DELETED>

<DELETED>SEC. 4. AUTHORIZATION OF TRANSFERS OF TITLES TO ELIGIBLE 
              FACILITIES.</DELETED>

<DELETED>    (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--</DELETED>
        <DELETED>    (1) not later than 90 days before the date on 
        which the Secretary makes the conveyance, the Secretary submits 
        to Congress--</DELETED>
                <DELETED>    (A) a written notice of the proposed 
                conveyance; and</DELETED>
                <DELETED>    (B) a description of the reasons for the 
                conveyance; and</DELETED>
        <DELETED>    (2) a joint resolution disapproving the conveyance 
        is not enacted before the date on which the Secretary makes the 
        conveyance.</DELETED>
<DELETED>    (b) Reservation of Easement.--The Secretary may reserve an 
easement over a conveyed property if--</DELETED>
        <DELETED>    (1) the Secretary determines that the easement is 
        necessary for the management of any interests retained by the 
        Federal Government under this Act;</DELETED>
        <DELETED>    (2) a portion of the conveyed property remains 
        under Federal ownership; and</DELETED>
        <DELETED>    (3) the Secretary enters into an agreement 
        regarding the easement with the applicable qualifying 
        entity.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 5. ELIGIBILITY CRITERIA.</DELETED>

<DELETED>    (a) Establishment.--The Secretary shall establish criteria 
for determining whether a facility is eligible for conveyance under 
this Act.</DELETED>
<DELETED>    (b) Minimum Requirements.--</DELETED>
        <DELETED>    (1) Agreement of qualifying entity.--The criteria 
        established under subsection (a) shall include a requirement 
        that a qualifying entity shall agree--</DELETED>
                <DELETED>    (A) to accept title to the eligible 
                facility;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (2) Determinations of secretary.--The criteria 
        established under subsection (a) shall include a requirement 
        that the Secretary shall--</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (B) determine that the proposed transfer--
                </DELETED>
                        <DELETED>    (i) would not have an unmitigated 
                        significant effect on the 
                        environment;</DELETED>
                        <DELETED>    (ii) is consistent with the 
                        responsibilities of the Secretary--</DELETED>
                                <DELETED>    (I) to protect land and 
                                water resources held in trust for 
                                federally recognized Indian Tribes; 
                                and</DELETED>
                                <DELETED>    (II) to ensure compliance 
                                with any applicable international 
                                treaties and interstate compacts; 
                                and</DELETED>
                        <DELETED>    (iii) is in the financial interest 
                        of the United States.</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (A) land acquired by the Secretary; 
                or</DELETED>
                <DELETED>    (B) land withdrawn by the Secretary, only 
                if--</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (ii) the qualifying entity agrees 
                        to pay fair market value based on historical or 
                        existing uses for the withdrawn land to be 
                        conveyed.</DELETED>

<DELETED>SEC. 6. LIABILITY.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.).</DELETED>

<DELETED>SEC. 7. BENEFITS.</DELETED>

<DELETED>    After a conveyance of an eligible facility under this 
Act--</DELETED>
        <DELETED>    (1) the conveyed property shall no longer be 
        considered to be part of a Reclamation project; and</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 8. COMPLIANCE WITH OTHER LAWS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) by an applicable State legislature, 
                State regulatory agency, publicly elected board, 
                appointed board, or other related entity; and</DELETED>
                <DELETED>    (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.</DELETED>

<DELETED>SEC. 9. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    (a) In General.--There are authorized to be appropriated 
to carry out this Act such sums as are necessary.</DELETED>
<DELETED>    (b) Use of Amounts.--Amounts made available under 
subsection (a) may be used--</DELETED>
        <DELETED>    (1) to carry out any investigations appropriate to 
        carry out this Act; and</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (c) Not Treated as Project Costs.--Expenditures made by 
the Secretary under this Act--</DELETED>
        <DELETED>    (1) shall not be a project cost assignable to a 
        Reclamation project; and</DELETED>
        <DELETED>    (2) shall be nonreimbursable.</DELETED>

SECTION 1. SHORT TITLE.

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

SEC. 2. 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.

SEC. 3. 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.--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 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.

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--
                    (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.

SEC. 5. 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;
                    (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.

SEC. 6. 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'').

SEC. 7. 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.

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
            (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.

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.
    (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.
                                                       Calendar No. 681

115th CONGRESS

  2d Session

                                S. 2560

                          [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