[House Report 115-166]
[From the U.S. Government Publishing Office]


115th Congress   }                                      {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {     115-166

======================================================================



 
                WATER SUPPLY PERMITTING COORDINATION ACT

                                _______
                                

 June 12, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1654]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1654) to authorize the Secretary of the Interior 
to coordinate Federal and State permitting processes related to 
the construction of new surface water storage projects on lands 
under the jurisdiction of the Secretary of the Interior and the 
Secretary of Agriculture and to designate the Bureau of 
Reclamation as the lead agency for permit processing, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Water Supply Permitting Coordination 
Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Bureau.--The term ``Bureau'' means the Bureau of 
        Reclamation.
          (2) Cooperating agencies.--The term ``cooperating agency'' 
        means a Federal agency with jurisdiction over a review, 
        analysis, opinion, statement, permit, license, or other 
        approval or decision required for a qualifying project under 
        applicable Federal laws and regulations, or a State agency 
        subject to section 3(c).
          (3) Qualifying projects.--The term ``qualifying projects'' 
        means new surface water storage projects in the States covered 
        under 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.) constructed on lands administered by the 
        Department of the Interior or the Department of Agriculture, 
        exclusive of any easement, right-of-way, lease, or any private 
        holding, unless the project applicant elects not to participate 
        in the process authorized by this Act.
          (4) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.

SEC. 3. ESTABLISHMENT OF LEAD AGENCY AND COOPERATING AGENCIES.

  (a) Establishment of Lead Agency.--The Bureau is established as the 
lead agency for purposes of coordinating all reviews, analyses, 
opinions, statements, permits, licenses, or other approvals or 
decisions required under Federal law to construct qualifying projects.
  (b) Identification and Establishment of Cooperating Agencies.--The 
Commissioner of the Bureau shall--
          (1) identify, as early as practicable upon receipt of an 
        application for a qualifying project, any Federal agency that 
        may have jurisdiction over a review, analysis, opinion, 
        statement, permit, license, approval, or decision required for 
        a qualifying project under applicable Federal laws and 
        regulations; and
          (2) notify any such agency, within a reasonable timeframe, 
        that the agency has been designated as a cooperating agency in 
        regards to the qualifying project unless that agency responds 
        to the Bureau in writing, within a timeframe set forth by the 
        Bureau, notifying the Bureau that the agency--
                  (A) has no jurisdiction or authority with respect to 
                the qualifying project;
                  (B) has no expertise or information relevant to the 
                qualifying project or any review, analysis, opinion, 
                statement, permit, license, or other approval or 
                decision associated therewith; or
                  (C) does not intend to submit comments on the 
                qualifying project or conduct any review of such a 
                project or make any decision with respect to such 
                project in a manner other than in cooperation with the 
                Bureau.
  (c) State Authority.--A State in which a qualifying project is being 
considered may choose, consistent with State law--
          (1) to participate as a cooperating agency; and
          (2) to make subject to the processes of this Act all State 
        agencies that--
                  (A) have jurisdiction over the qualifying project;
                  (B) are required to conduct or issue a review, 
                analysis, or opinion for the qualifying project; or
                  (C) are required to make a determination on issuing a 
                permit, license, or approval for the qualifying 
                project.

SEC. 4. BUREAU RESPONSIBILITIES.

  (a) In General.--The principal responsibilities of the Bureau under 
this Act are--
          (1) to serve as the point of contact for applicants, State 
        agencies, Indian tribes, and others regarding proposed 
        qualifying projects;
          (2) to coordinate preparation of unified environmental 
        documentation that will serve as the basis for all Federal 
        decisions necessary to authorize the use of Federal lands for 
        qualifying projects; and
          (3) to coordinate all Federal agency reviews necessary for 
        project development and construction of qualifying projects.
  (b) Coordination Process.--The Bureau shall have the following 
coordination responsibilities:
          (1) Preapplication coordination.--Notify cooperating agencies 
        of proposed qualifying projects not later than 30 days after 
        receipt of a proposal and facilitate a preapplication meeting 
        for prospective applicants, relevant Federal and State 
        agencies, and Indian tribes--
                  (A) to explain applicable processes, data 
                requirements, and applicant submissions necessary to 
                complete the required Federal agency reviews within the 
                timeframe established; and
                  (B) to establish the schedule for the qualifying 
                project.
          (2) Consultation with cooperating agencies.--Consult with the 
        cooperating agencies throughout the Federal agency review 
        process, identify and obtain relevant data in a timely manner, 
        and set necessary deadlines for cooperating agencies.
          (3) Schedule.--Work with the qualifying project applicant and 
        cooperating agencies to establish a project schedule. In 
        establishing the schedule, the Bureau shall consider, among 
        other factors--
                  (A) the responsibilities of cooperating agencies 
                under applicable laws and regulations;
                  (B) the resources available to the cooperating 
                agencies and the non-Federal qualifying project 
                sponsor, as applicable;
                  (C) the overall size and complexity of the qualifying 
                project;
                  (D) the overall schedule for and cost of the 
                qualifying project; and
                  (E) the sensitivity of the natural and historic 
                resources that may be affected by the qualifying 
                project.
          (4) Environmental compliance.--Prepare a unified 
        environmental review document for each qualifying project 
        application, incorporating a single environmental record on 
        which all cooperating agencies with authority to issue 
        approvals for a given qualifying project shall base project 
        approval decisions. Help ensure that cooperating agencies make 
        necessary decisions, within their respective authorities, 
        regarding Federal approvals in accordance with the following 
        timelines:
                  (A) Not later than 1 year after acceptance of a 
                completed project application when an environmental 
                assessment and finding of no significant impact is 
                determined to be the appropriate level of review under 
                the National Environmental Policy Act of 1969 (42 
                U.S.C. 4321 et seq.).
                  (B) Not later than 1 year and 30 days after the close 
                of the public comment period for a draft environmental 
                impact statement under the National Environmental 
                Policy Act of 1969 (42 U.S.C. 4321 et seq.), when an 
                environmental impact statement is required under the 
                same.
          (5) Consolidated administrative record.--Maintain a 
        consolidated administrative record of the information assembled 
        and used by the cooperating agencies as the basis for agency 
        decisions.
          (6) Project data records.--To the extent practicable and 
        consistent with Federal law, ensure that all project data is 
        submitted and maintained in generally accessible electronic 
        format, compile, and where authorized under existing law, make 
        available such project data to cooperating agencies, the 
        qualifying project applicant, and to the public.
          (7) Project manager.--Appoint a project manager for each 
        qualifying project. The project manager shall have authority to 
        oversee the project and to facilitate the issuance of the 
        relevant final authorizing documents, and shall be responsible 
        for ensuring fulfillment of all Bureau responsibilities set 
        forth in this section and all cooperating agency 
        responsibilities under section 5.

SEC. 5. COOPERATING AGENCY RESPONSIBILITIES.

  (a) Adherence to Bureau Schedule.--
          (1) Timeframes.--On notification of an application for a 
        qualifying project, the head of each cooperating agency shall 
        submit to the Bureau a timeframe under which the cooperating 
        agency reasonably will be able to complete the authorizing 
        responsibilities of the cooperating agency.
          (2) Schedule.--
                  (A) Use of timeframes.--The Bureau shall use the 
                timeframes submitted under this subsection to establish 
                the project schedule under section 4.
                  (B) Adherence.--Each cooperating agency shall adhere 
                to the project schedule established by the Bureau under 
                subparagraph (A).
  (b) Environmental Record.--The head of each cooperating agency shall 
submit to the Bureau all environmental review material produced or 
compiled in the course of carrying out activities required under 
Federal law, consistent with the project schedule established by the 
Bureau under subsection (a)(2).
  (c) Data Submission.--To the extent practicable and consistent with 
Federal law, the head of each cooperating agency shall submit all 
relevant project data to the Bureau in a generally accessible 
electronic format, subject to the project schedule established by the 
Bureau under subsection (a)(2).

SEC. 6. FUNDING TO PROCESS PERMITS.

  (a) In General.--The Secretary, after public notice in accordance 
with subchapter II of chapter 5, and chapter 7, of title 5, United 
States Code (commonly known as the ``Administrative Procedure Act''), 
may accept and expend funds contributed by a non-Federal public entity 
to expedite the evaluation of a permit of that entity related to a 
qualifying project.
  (b) Effect on Permitting.--
          (1) Evaluation of permits.--In carrying out this section, the 
        Secretary shall ensure that the evaluation of permits carried 
        out using funds accepted under this section shall--
                  (A) be reviewed by the Regional Director of the 
                Bureau of the region in which the qualifying project or 
                activity is located (or a designee); and
                  (B) use the same procedures for decisions that would 
                otherwise be required for the evaluation of permits for 
                similar projects or activities not carried out using 
                funds authorized under this section.
          (2) Impartial decisionmaking.--In carrying out this section, 
        the Secretary and the head of each cooperating agency receiving 
        funds under this section for a qualifying project shall ensure 
        that the use of the funds accepted under this section for the 
        qualifying project shall not--
                  (A) substantively or procedurally impact impartial 
                decisionmaking with respect to the issuance of permits; 
                or
                  (B) diminish, modify, or otherwise affect the 
                statutory or regulatory authorities of the cooperating 
                agency.
  (c) Limitation on Use of Funds.--None of the funds accepted under 
this section shall be used to carry out a review of the evaluation of 
permits required under subsection (b)(1)(A).
  (d) Public Availability.--The Secretary shall ensure that all final 
permit decisions carried out using funds authorized under this section 
are made available to the public, including on the Internet.

                          PURPOSE OF THE BILL

    The purpose of H.R. 1654 is to authorize the Secretary of 
the Interior to coordinate Federal and State permitting 
processes relating to the construction of new surface water 
storage projects on lands under the jurisdiction of the 
Secretary of the Interior and the Secretary of Agriculture and 
to designate the Bureau of Reclamation as the lead agency for 
permit processing.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 1654, as amended, creates a ``one-stop-shop'' 
permitting process through the Bureau of Reclamation to 
streamline the current multi-agency permitting processes for 
new or expanded non-federal surface storage facilities.
    The regulatory process of constructing new surface water 
storage--whether federally or non-federally owned--often 
involves a host of federal, state, and local permits and 
approvals from various agencies. Throughout this process 
federal agencies are not required to coordinate their permits 
and approvals with one another and have little incentive to do 
so. As a result, conflicting agency permit requirements add 
time to the project planning and implementation process and 
increase the potential for last-minute surprises that could 
endanger the success of a project or require significant 
additional work. For example, it took 14 years to permit but 
just two years to build the 22,400 acre-foot High Savery Dam 
Project in Wyoming. At a 2012 Water and Power Subcommittee 
oversight hearing, Mr. Pat O'Toole, a local rancher testified, 
``the lead federal agency wasted a great deal of time making 
decisions on the project and at times seemed unable to make 
decisions. These delays not only postponed the project, they 
resulted in wasted time and money.''
    Previous Administrations have acknowledged the need for 
coordinating permitting and review. In October 2009, nine 
federal agencies entered into a Memorandum of Understanding 
(MOU) ``to expedite the siting and construction of electric 
transmission infrastructure in the United States . . . and to 
improve coordination among project applicants, federal 
agencies, and states and tribes involved in the siting and 
permitting process.'' This MOU included provisions for the use 
of a single unified environmental review document for each 
project analysis. H.R. 1654 creates a similar ``one-stop-shop'' 
permitting process to expedite construction of new or expanded 
non-federal surface storage facilities. Specifically, the bill 
establishes Reclamation as the lead agency for purposes of 
coordinating all reviews, analysis, opinions, statements, 
permits, licenses, or other federal approvals required under 
federal law. As the point of contact for the federal 
government, Reclamation shall coordinate the preparation of the 
unified environmental documentation that will serve as the 
basis for all federal decisions necessary to authorize the use 
of federal lands, as well as coordinate the project development 
and construction of qualifying projects. The consolidated 
permitting process authorized under this Title is modeled after 
the Obama Administration's ``Interagency Rapid Response Team 
for Transmission.''
    Additionally, the bill allows the Secretary of the Interior 
to accept and spend funds contributed by a non-federal public 
entity to expedite the evaluation of a permit relating to the 
qualifying project--similar to the one authorized under Section 
140 of Public Law 108-137--to finance upgrades to the Hetch 
Hetchy project in California. As amended, the bill allows 
project sponsors to opt out and pursue other pathways to 
development if they so choose. The bill is not intended to be a 
``one-size-fits-all'' approach, but rather an approach to give 
water project sponsors the flexibility to choose which agency 
and process works best for them.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides short title for the bill: the ``Water 
Supply Permitting Coordination Act''.
    Section 2 defines key terms used throughout the Act. As 
amended, qualifying projects include all new or expanded 
surface water storage projects, unless the project applicant 
elects not to participate in the process authorized under this 
Act.
    Section 3 establishes Reclamation as the lead agency and 
sets forth the process by which cooperating agencies are 
identified and established. This process requires Reclamation 
to notify all agencies with permitting responsibilities related 
to proposed projects that those projects have been received, 
and gives agencies who are improperly identified an opportunity 
to opt out of the process if they will not be performing any 
review outside of the coordinated process. Section 3 also 
provides states with discretion to participate as cooperating 
agencies and to involve their state agencies in coordination 
with the other cooperating agencies.
    Section 4 sets forth the responsibilities of Reclamation as 
the lead agency, including serving as the point of contact for 
applicants, state agencies, Indian tribes, and others regarding 
proposed qualifying projects. Reclamation must also coordinate 
the preparation of the unified environmental review document 
that serves as the basis for all federal decisions necessary to 
authorize the use of federal lands for new surface water 
storage construction. To begin the process, Section 4 requires 
Reclamation to notify cooperating agencies of proposed projects 
within 30 days and establishes a process by which Reclamation 
explains the process and the proposed project, establishes a 
schedule for the project and consults with cooperating 
agencies. Section 4 also requires that Reclamation prepare a 
unified environmental review document for each qualifying 
project, incorporating a single environmental record on which 
all cooperating agencies shall base project approval decisions, 
and to maintain a consolidated administrative record of the 
information assembled. Finally, Section 4 requires that all 
project data, to the extent practicable and consistent with 
existing law, be submitted to Reclamation as the lead agency 
and made available online to the public.
    Section 5 establishes the Cooperating Agency 
responsibilities, including adhering to the coordinated 
schedule set by Reclamation, cooperating with compilation of 
the environmental record and adhering to it for all decisions, 
and submitting all relevant data to Reclamation in a generally 
accessible format.
    Section 6 establishes the process for third party financial 
contributions to the ``one-stop-shop'' review process and 
requires that the Secretary of the Interior shall remain 
impartial in all decision making with respect to permits both 
substantively and procedurally.

                            COMMITTEE ACTION

    H.R. 1654 was introduced on March 21, 2017, by Congressman 
Tom McClintock (R-CA). The bill was referred to the Committee 
on Natural Resources, and within the Committee to the 
Subcommittee on Water, Power and Oceans. On April 26, 2017, the 
Full Natural Resources Committee met to consider the bill. The 
Subcommittee on Water, Power and Oceans was discharged by 
unanimous consent. Congressman McClintock offered amendment 
designated #1. It was adopted by voice vote. No further 
amendments were offered and on April 27, 2017, the bill as 
amended was ordered favorably reported by a bipartisan roll 
call of 24 ayes to 16 noes, as follows:


            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 11, 2017.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1654, the Water 
Supply Permitting Coordination Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aurora 
Swanson.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 1654--Water Supply Permitting Coordination Act

    H.R. 1654 would direct the Bureau of Reclamation (BOR) to 
act as the lead federal agency for coordinating with 17 western 
states for issuing permits to construct new water storage 
projects on land managed by the Department of the Interior or 
the Department of Agriculture. The bill also would impose 
deadlines for carrying out certain activities related to each 
project. Based on information from BOR and other federal 
agencies, CBO estimates that implementing those provisions 
would cost about $1 million a year for staff to coordinate 
agency reviews, to consolidate project data and documentation, 
to review projects, and for regional directors to review 
permits. Such spending would be subject to the availability of 
appropriated funds.
    The bill also would authorize BOR to receive and spend 
funds contributed by nonfederal public entities to expedite the 
evaluation of permit applications for new projects. (With the 
aim of ensuring impartiality, amounts collected under the bill 
would not be used to cover the cost of final reviews required 
by regional directors; such spending would be subject to the 
availability of appropriated funds.) The amount collected each 
year would depend on the number of participants willing to 
contribute funds to expedite their permits. Based on an 
analysis of information from BOR, CBO estimates that in most 
years BOR would collect and spend less than $500,000 for such 
purposes and that the net effect on direct spending would be 
negligible. Because implementing those provisions would affect 
direct spending, pay-as-you-go procedures apply. Enacting H.R. 
1654 would not affect revenues.
    CBO estimates that enacting the bill would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1654 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act. The 
bill would benefit public entities by expediting permits for 
federal water supply projects that serve those entities. Any 
costs incurred by state, local, or tribal governments that 
participate as cooperating agencies, including cost-sharing 
contributions, would result from voluntary commitments.
    The CBO staff contacts for this estimate are Aurora Swanson 
(for federal costs) and Jon Sperl (for intergovernmental 
mandates). The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to authorize the Secretary of the 
Interior to coordinate Federal and State permitting processes 
relating to the construction of new surface water storage 
projects on lands under the jurisdiction of the Secretary of 
the Interior and the Secretary of Agriculture and to designate 
the Bureau of Reclamation as the lead agency for permit 
processing.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                       COMPLIANCE WITH H. RES. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    H.R. 1654 would impose arbitrary deadlines for completing 
key environmental reviews for new water storage projects and 
create an ill-conceived new review process at odds with the 
existing review process established under key laws such as the 
National Environmental Policy Act (NEPA).
    Section 3 of the bill establishes the Bureau of Reclamation 
as the lead agency for all reviews, permits, approvals, and 
other requirements necessary for project construction. As lead 
agency, the Bureau of Reclamation could dictate deadlines and 
scope for environmental reviews, thereby undermining the 
management authority of expert federal agencies charged with 
implementing our nation's most important environmental laws 
such as the Endangered Species Act and Clean Water Act. Other 
bill sections mandate various deadlines and timelines for 
completing environmental reviews, determining project 
schedules, and consulting with cooperating agencies. The bill 
arises out of the Majority's notion that environmental 
regulations are a significant impediment to the construction of 
new dams.
    Not a single water storage project has been denied 
construction because of a lack of coordination between the 
Bureau of Reclamation and other agencies or because of delays 
associated with review or permitting. According to the Bureau 
of Reclamation, project economics, pricing, and repayment 
challenges are the primary reasons for some projects being 
authorized but not constructed--not environmental compliance or 
a lack of coordination.
    It is far from clear if the review process established in 
H.R. 1654 would dovetail or overlap with processes for review 
that already exists under the Fish and Wildlife Coordination 
Act, NEPA, and other major laws. For example, the bill's 
definition of ``cooperating agency'' conflicts with the 
definition of ``cooperating agency'' established under NEPA, 
which establishes tribal, local, state, and federal entities as 
potential cooperating agencies. In addition, the legislation 
uses undefined terms such as ``unified environmental review 
document'' with no further explanation. The confusion this bill 
would cause, coupled with the compressed timeframe it mandates 
to establish the merits of projects, will likely make favorable 
recommendations for construction projects less probable. For 
these reasons, we oppose H.R. 1654.
                                   Raul M. Grijalva,
                                           Ranking Member, House 
                                               Committee on Natural 
                                               Resources.
                                   Grace F. Napolitano,
                                           Ranking Member.
                                   Jared Huffman,
                                           Ranking Member, Subcommittee 
                                               on Water, Power and 
                                               Oceans.
                                   Colleen Hanabusa,
                                           Member of Congress.
                                   Darren Soto,
                                           Member of Congress.
                                   A. Donald McEachin,
                                           Ranking Member, Subcommittee 
                                               on Oversight and 
                                               Investigations.
                                   Donald S. Beyer, Jr.,
                                           Member of Congress.
                                   Nanette Diaz Barragan,
                                           Member of Congress.
                                   Jimmy Panetta,
                                           Member of Congress.

                                  [all]