[Senate Report 115-358]
[From the U.S. Government Publishing Office]
Calendar No. 645
115th Congress } { Report
SENATE
2d Session } { 115-358
======================================================================
NEW MEXICO DROUGHT PREPAREDNESS ACT OF 2018
_______
November 14, 2018.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1012]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1012) to provide for drought preparedness
measures in the State of New Mexico, and for other purposes,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``New Mexico Drought
Preparedness Act of 2018''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Water acquisition program.
Sec. 4. Water conservation.
Sec. 5. National Academy of Sciences study.
Sec. 6. Emergency funding.
Sec. 7. Secure Water Act grants and cooperative agreements.
Sec. 8. Rio Grande Pueblo irrigation infrastructure reauthorization.
Sec. 9. Effect on existing law.
SEC. 2. DEFINITIONS.
Except as otherwise provided in this Act, in this Act:
(1) Basin.--The term ``Basin''--
(A) is limited to areas within the State of New
Mexico; and
(B) means each of--
(i) the Upper Rio Grande Basin;
(ii) the Middle Rio Grande Basin;
(iii) the Lower Rio Grande Basin;
(iv) the Lower Pecos River Basin;
(v) the Gila River Basin;
(vi) the Canadian River Basin;
(vii) the San Francisco River Basin; and
(viii) the San Juan River Basin.
(2) District.--The term ``District'' means the Middle Rio
Grande Conservancy District.
(3) Pueblo.--The term ``Pueblo'' means each of the following
pueblos in the State:
(A) Cochiti.
(B) Santo Domingo.
(C) San Felipe.
(D) Santa Ana.
(E) Sandia.
(F) Isleta.
(4) Rio grande compact.--The term ``Rio Grande Compact''
means the compact approved by Congress under the Act of May 31,
1939 (53 Stat. 785, chapter 155).
(5) Secretaries.--The term ``Secretaries''' means--
(A) the Administrator of the Environmental Protection
Agency;
(B) the Secretary of Commerce; and
(C) the Secretary of the Interior.
(6) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(7) State.--The term ``State'' means the State of New Mexico.
SEC. 3. WATER ACQUISITION PROGRAM.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall carry out in the Basins a water acquisition program
in coordination with the other appropriate Federal agencies, State
agencies, and non-Federal stakeholders, under which the Secretary
shall--
(1) make acquisitions of water in the Basins by lease or
purchase of water rights or contractual entitlements from
willing lessors or sellers, consistent with section 8 of the
Act of June 17, 1902 (43 U.S.C. 383), the Rio Grande Compact,
and applicable State law relating to the acquisition and
administration of water rights; and
(2) take any other actions, consistent with section 8 of the
Act of June 17, 1902 (43 U.S.C. 383), the Rio Grande Compact,
and applicable State law, that the Secretary determines would
achieve the purposes of the water acquisition program described
in subsection (b).
(b) Purposes.--The purposes of the water acquisition program are--
(1) to enhance stream flow to benefit fish and wildlife
(including endangered species), water quality, and river
ecosystem restoration in the Basins; and
(2) to enhance stewardship and conservation of working land,
water, and watersheds in the Basins, consistent with the
purpose described in paragraph (1).
(c) Coordination.--To assist in developing and administering the
program, the Secretary may provide funds to a federally established
nonprofit entity with particular expertise in western water
transactions.
(d) District Projects.--Subject to the Rio Grande Compact and
applicable State law, the Secretary may develop programs to provide--
(1) cost-share assistance to the District or agricultural
producers and irrigators in the District for making irrigation
system improvements and increase system efficiency;
(2) incentives to the District for the establishment of a
water leasing program from willing lessors for agricultural
producers and irrigators in the District to temporarily lease
pre-1907 water rights (instead of permanent severance from
irrigable lands) for the purpose of providing benefits to
species listed under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) and other river ecosystem benefits; and
(3) cost-share assistance to the District to implement
infrastructure or operational changes that will allow for
effective management of a leasing program, while maintaining
adequate water deliveries to other agricultural producers and
irrigators.
SEC. 4. WATER CONSERVATION.
(a) In General.--The Secretary, in cooperation with the District
and in consultation with the Pueblos, may provide funding and technical
assistance for the installation of metering and measurement devices and
the construction of check structures on irrigation diversions, canals,
laterals, ditches, and drains--
(1) to ensure the conservation and efficient use of water
within the District by--
(A) reducing actual consumptive use; or
(B) not increasing the use of water; and
(2) to improve the measurement and allocation of water
acquired through the water acquisition program established
under section 3.
(b) Rio Grande, San Acacia and Isleta Reaches.--
(1) In general.--The Secretary shall provide for development
of a comprehensive plan for the San Acacia and Isleta reaches
to plan, design, construct and prioritize projects that balance
river maintenance, water availability, use, and delivery, and
ecosystem benefits, including--
(A) planning, permitting, and construction of a
pumping station at Bosque del Apache National Wildlife
Refuge for the purpose of more efficiently using water
to provide--
(i) a stable supply for the Refuge; and
(ii) an efficient and reliable supply of
water to the Rio Grande for the benefit of the
endangered silvery minnow and Southwestern
willow flycatcher;
(B) planning, permitting, and construction of a river
channel realignment project near the Rio Grande mile-83
for the purpose addressing river channel aggradation
while maintaining floodplain connectivity;
(C) planning, permitting, and construction of a
controlled outlet for the low flow conveyance channel
to the Rio Grande between Fort Craig, New Mexico and
Rio Grande mile-60 for the purpose of water use and
delivery, enhancement and development of habitat areas,
and possible creation of a single-channel river
ecosystem; and
(D) development of a Lower Reach Plan--
(i) to identify additional projects and
maintenance activities with water use, sediment
management, and delivery and ecosystem
benefits; and
(ii) to prioritize implementation of all
projects and activities.
(2) Public participation.--In carrying out this subsection,
the Secretary shall provide a process for public participation
and comment during plan development and alternative analysis.
SEC. 5. NATIONAL ACADEMY OF SCIENCES STUDY.
(a) Definition of Basin.--
(1) In general.--In this section, the term ``basin'' means
the Rio Grande and the tributaries of the Rio Grande between--
(A) the headwaters of the Rio Grande and the Rio
Chama in the State of Colorado; and
(B) Elephant Butte Reservoir in the State.
(2) Exclusions.--In this section, the term ``basin'' does not
include Elephant Butte Reservoir, Caballo Dam, or any portion
of the Rio Grande or the tributaries of the Rio Grande
downstream of Elephant Butte Reservoir.
(b) Study.--Not later than 60 days after the date of enactment of
this Act, the Secretary of the Army and the Secretary shall enter into
an arrangement with the National Academy of Sciences to carry out a
study on water and reservoir management and operation issues in the
basin (including the Heron, El Vado, Abiquiu, Cochiti, and Jemez Canyon
Dams and Reservoirs), which shall include--
(1) an evaluation of existing basin reservoir authorizations
and legal requirements;
(2) a summary of--
(A) the physical-hydrologic understanding of existing
basin reservoir operations; and
(B) any potential constraints on basin reservoirs in
light of climate change projections;
(3) an identification of opportunities to optimize water
storage and management to benefit the basin ecosystem,
irrigators and municipal users, and to promote water
conservation through reauthorization of, reoperation of,
regulation of, or physical improvements to the reservoirs;
(4) an evaluation of the physical-hydrologic feasibility of
the identified future basin reservoir management scenarios;
(5) an identification of water use, supply, and accounting
impacts to other stakeholders in the State;
(6) consideration of operations such as--
(A) the storage of supplemental water acquired by and
under the control of the Bureau of Reclamation;
(B) the carryover storage of San Juan-Chama Project
contract water;
(C) the Pueblo Prior and Paramount operation water;
(D) changes in timing of water released to offset
municipal pumping;
(E) changes in the timing of storage and release of
floodwaters;
(F) the reduction of evaporative losses from basin
reservoirs;
(G) conservation of water resulting from irrigation
operation changes by non-Indian and Pueblo irrigators;
(H) the impacts of management and operations on
recreation and hydropower;
(I) the impacts of management and operations on the
basin ecosystem and the habitats that support species
listed under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.); and
(J) any other factors the Academy determines to be
necessary for purposes of fully evaluating
opportunities to achieve greater water conservation,
drought resiliency, and ecological health in the basin;
and
(7) recommendations for future management scenarios and
measures that Congress could take with respect to the basin,
consistent with all applicable law, including the Act of June
17, 1902 (43 U.S.C. 383), and the Rio Grande Compact to assist
the agencies in establishing more flexible operating procedures
to improve the performance of basin reservoir operations in
accommodating multiple purposes.
(c) Coordination With Other Studies.--To the maximum extent
practicable, the study carried out under subsection (b) shall be
coordinated with, and use data collected and analyses conducted for,
other studies of the basin, including the Bureau of Reclamation Rio
Grande Basin Study initiated in 2017.
(d) Cosponsors.--The Secretary of the Army and the Secretary shall
solicit cosponsors to contribute not less than 50 percent of the costs
of the study under subsection (b), as appropriate, including State or
private organizations.
(e) Public Availability of Study.--On the date on which the
National Academy of Sciences completes the study under this section,
the National Academy of Sciences shall make available to the public the
results of the study.
(f) Report.--Not later than 2 years after the date of enactment of
this Act, the National Academy of Sciences shall submit to the
Secretary of the Army and the Secretary a report that contains a
summary of the results of the study conducted under this section.
SEC. 6. EMERGENCY FUNDING.
(a) Financial Assistance.--
(1) In general.--Financial assistance may be made available
under the Reclamation States Emergency Drought Relief Act of
1991 (43 U.S.C. 2201 et seq.) for eligible water projects to
assist Western States and Tribal governments to address
drought-related impacts to water supplies or any other
immediate water--related crisis or conflict.
(2) Additional availability.--Financial assistance may be
made available under this section to organizations and entities
with water delivery authority that are engaged in collaborative
processes to restore the environment or are part of a basin-
wide solution for restoration.
(b) Types of Assistance.--Assistance under subsection (a) may
include a range of projects, including--
(1) the installation of pumps, temporary barriers, or
operable gates for water diversion and fish protection;
(2) the installation of drought-relief groundwater wells for
Indian Tribes and in wildlife refuges and other areas;
(3) the acquisition or assistance in the acquisition of water
from willing sellers to enhance stream flow for the benefit of
fish and wildlife (including endangered species), water
quality, river ecosystem restoration, and other beneficial
purposes, to be carried out in accordance with the water
acquisition program established under section 3;
(4) agricultural and urban conservation and efficiency
projects;
(5) exchanges with any water district willing to provide
water to meet the emergency water needs of other water
districts in return for the delivery of equivalent quantities
of water later that year or in future years;
(6) maintenance of cover crops to prevent public health
impacts from severe dust storms;
(7) emergency pumping projects for critical health and safety
purposes;
(8) activities to reduce water demand consistent with a
comprehensive program for environmental restoration and
settlement of water rights claims;
(9) the use of new or innovative on-farm water conservation
technologies or methods that may--
(A) assist in sustaining permanent crops in areas
with severe water shortages; and
(B) make water available for other beneficial uses;
(10) activities that protect, restore, or enhance fish and
wildlife habitat or otherwise improve environmental conditions,
including water quantity or quality concerns and improved fish
passage;
(11) activities reducing or preventing groundwater depletion
or promoting groundwater recharge;
(12) technical assistance to improve existing irrigation
practices to provide water supply benefits;
(13) the investigation of, and pilot projects for, brackish
water development and aquifer storage and recovery;
(14) the lining of irrigation ditches and canals to reduce
water loss and improve efficiency;
(15) assistance to municipal water management entities for
water supply planning in preparation for and in response to
dry, critically dry, and below normal water years, including--
(A) hydrological forecasting;
(B) identification of alternative water supply
sources; and
(C) guidance on potential water transfer partners;
and
(16) any other assistance the Secretary determines to be
necessary to increase available water supplies, maintain the
health of river ecosystems, or mitigate drought impacts.
SEC. 7. SECURE WATER ACT GRANTS AND COOPERATIVE AGREEMENTS.
Section 9504(a)(1)(H) of the Omnibus Public Land Management Act of
2009 (42 U.S.C. 10364(a)(1)(H)) is amended--
(1) in clause (i), by striking ``or'' at the end;
(2) in clause (ii), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(iii) to plan for or address the impacts of
drought.''.
SEC. 8. RIO GRANDE PUEBLO IRRIGATION INFRASTRUCTURE REAUTHORIZATION.
Section 9106 of the Omnibus Public Land Management Act of 2009
(Public Law 111-11; 123 Stat. 1304) is amended--
(1) in subsection (c)(4), by striking ``2 years after the
date of enactment of this Act'' and inserting ``December 31,
2019''; and
(2) in subsection (g)(2), by striking ``2010 through 2019''
and inserting ``2018 through 2026''.
SEC. 9. EFFECT ON EXISTING LAW.
(a) In General.--An action taken by any of the Secretaries or
another entity under this Act or an amendment made by this Act shall
comply with applicable State laws in effect on the date of enactment of
this Act, including a law described in subsection (b).
(b) State Law.--Nothing in this Act or an amendment made by this
Act affects, is intended to affect, or interferes with a law of the
State relating to the control, appropriation, use, or distribution of
water, or any vested right acquired under the law.
(c) Rio Grande Compact.--Nothing in this Act or an amendment made
by this Act affects or is intended to affect or interfere with any
obligation of a State under the Rio Grande Compact or any litigation
related to the Rio Grande Compact.
Purpose
The purpose of S. 1012 is to provide for drought
preparedness measures in the State of New Mexico.
Background and Need
New Mexico has faced a number of droughts in recent years
and several studies indicate that future water supplies will
not meet the State's expected demands. In 2012, a variety of
stakeholders from around New Mexico, including conservancy
districts, farmers, ranchers, municipalities, and others,
gathered for a water conference in Las Cruces, New Mexico, to
develop proposals to help the State deal with future water
supply challenges.
The stakeholder conference produced a report containing
roughly 50 policy recommendations covering a wide variety of
water management issues, ranging from conservation and research
priorities to infrastructure operation and maintenance,
technology, and planning.
S. 1012 authorizes the Secretary of the Interior
(Secretary) to implement several of the conference report's
recommendations, along with other recommendations developed
through continued outreach with stakeholders, to address long-
term water solutions in the state.
Legislative History
S. 1012 was introduced by Senators Udall and Heinrich on
May 2, 2017. The Subcommittee on Water and Power held a hearing
on the bill on June 14, 2017.
In the 114th Congress, Senator Udall introduced a similar
measure, S. 1936, on August 4, 2015. The Subcommittee on Water
and Power held a hearing on S. 1936 on October 8, 2015.
The Senate Committee on Energy and Natural Resources met in
an open business session on October 2, 2018, and ordered S.
1012 favorably reported, as amended.
Committee Recommendation
The Senate Committee on Energy and Natural Resources, in
open business session on October 2, 2018, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
1012, if amended as described herein. Senators Lee and Risch
asked to be recorded as voting no.
Committee Amendment
During its consideration of S. 1012, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment deleted sections 5, 9, 11, and 12 and reformatted the
bill accordingly. Several of these provisions were enacted as
part of the America's Water Infrastructure Act (Public Law 115-
270), and are no longer necessary in S. 1012. In addition, the
amendment added a requirement that the authorized National
Academy of Sciences (NAS) study coordinate with other basin-
related studies and directed the Secretary and the Secretary of
the Army (Secretaries) to solicit non-Federal contributions of
at least 50 percent of the study's costs. Additionally, the
substitute amendment removed a provision related to Title XII
of the Food Security Act of 1985 (16 U.S.C. 3801 et seq.),
prohibited the Commissioner of the Bureau of Reclamation
(Reclamation) from waiving the non-Federal cost share for
Secure Water Act grants (42 U.S.C. 10364(a)(3)(E)), and made
other minor changes. The substitute amendment is further
described in the section-by-section analysis.
Section-by-Section Analysis
Sec.1. Short title; table of contents
Section 1 sets forth the short title and table of contents.
Sec. 2. Definitions
Section 2 defines key terms.
Sec. 3. Water acquisition program
Subsection (a) directs the Secretary, acting through the
Commission of Reclamation and in cooperation with Federal,
State, and other stakeholders, to carry out a water acquisition
program in specified basins in New Mexico, under which the
Secretary is: (1) to make acquisitions of water by lease or
sale from willing lessors or sellers; and (2) to take any other
actions that the Secretary determines would enhance the
program's purposes.
Subsection (b) sets forth the following purposes of the
program: (1) to enhance stream flow to benefit fish and
wildlife, water quality, river ecosystem restoration; and (2)
to enhance stewardship and conservation of working land, water,
and watersheds.
Subsection (c) authorizes the Secretary to provide funds to
a Federally established nonprofit entity, with expertise in
western water transactions, in order to assist in developing
and administering the program.
Subsection (d) authorizes the Secretary to develop programs
to provide cost-share assistance to the Middle Rio Grande
Conservancy District (District) or agriculture producers and
irrigators, for irrigation system improvements and increased
efficiency; incentives to the District for a water leasing
program for the benefit of species listed under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) and other river
ecosystem benefits; and cost-share assistance to the District
to implement infrastructure or operational changes.
Sec. 4. Water conservation
Subsection (a) authorizes the Secretary, in cooperation
with the District, and in consultation with the Pueblos, to
provide funding and technical assistance for the installation
of metering and measurement devices and the construction of
check structures on irrigation diversions, canals, laterals,
ditches, and drains: (1) to ensure the conservation and
efficient use of water within the District, and (2) to improve
the measurement and allocation of water acquired through the
water acquisition program.
Subsection (b) directs the Secretary to provide for
development of a comprehensive plan to plan, design, construct,
and prioritize projects that balance river maintenance, water
availability, use, and delivery, and ecosystem benefits for the
San Acacia and Isleta reaches of the Rio Grande. This
subsection further requires the Secretary to provide for public
participation and comments during the plan development and
alternative analysis.
Sec. 5. National Academy of Sciences study
Subsection (a) defines ``basin'' for section 5.
Subsection (b) requires the Secretaries to enter into an
arrangement with the NAS, within 60 days of enactment, to study
water and reservoir management and operation issues in the
basin. This subsection further specifies the issues the study
must address.
Subsection (c) requires the study to be coordinated with
and use data and analysis from other basin-related studies,
including Reclamation's 2017 Rio Grande Basin Study.
Subsection (d) requires the Secretaries to solicit
cosponsors, including State and private organizations, to
contribute at least 50 percent of the study's costs.
Subsection (e) directs the NAS to make the study results
publicly available.
Subsection (f) directs the NAS to submit the study to the
Secretaries within two years of the Act's enactment.
Sec. 6. Emergency funding
Subsection (a) authorizes financial assistance pursuant to
the Reclamation States Emergency Drought Relief Act of 1991 (43
U.S.C. 2201 et seq.) for eligible projects to assist Western
States and Tribal governments with drought-related impacts to
water supplies or any other immediate water-related crisis or
conflict. This subsection further authorizes such financial
assistance to organizations and entities with water delivery
authority that are engaged in collaborative processes to
restore the environment or are part of a basin-wide water
solution.
Subsection (b) authorizes a range of projects for which
financial assistance may be provided, including 16 specified
project types.
Sec. 7. Secure Water Act grants and cooperative agreements
Section 7 amends section 9504(a)(1)(H) of the Omnibus
Public Lands Management Act of 2009 (42 U.S.C. 10364(a)(1)(H)
to add planning and addressing drought impacts as an eligible
use of Bureau of Reclamation Secure Water Act grants and
cooperative agreements.
Sec. 8. Rio Grande Pueblo irrigation infrastructure reauthorization
Section 8 requires the Secretary to submit a report to the
Senate Energy and Natural Resources Committee and the House
Natural Resources Committee with a recommended list of projects
recommended for implementation, along with findings, by
December 31, 2019. This section further reauthorizes
appropriations for Rio Grande Pueblo irrigation infrastructure
grants through Fiscal Year 2026.
Sec. 9. Effect on Existing Law
Section 9 requires any action taken under the Act to comply
with applicable State laws. This section also makes clear that
nothing in the Act affects or interferes with State control,
appropriation, use or distribution of water, or any vested
right. This section further specifies that nothing in the Act
affects or interferes with any State obligation under the Rio
Grande Compact 53 Stat. 785, chapter 155) or related
litigation.
Cost and Budgetary Considerations
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
Summary: S. 1012 would extend the authority of the Bureau
of Reclamation (BOR) to provide grants to Pueblo Indian Tribes
to repair and replace irrigation infrastructure in New Mexico.
The bill also would direct BOR to contract with the National
Academy of Sciences (NAS) to study the management and
consumption of water in the Rio Grande Basin. Finally, S. 1012
would authorize BOR to assist irrigation districts and water
utilities in the state with projects designed to conserve water
and to coordinate the acquisition of water from willing
sellers. Using information from BOR, CBO estimates that
implementing the bill would cost $22 million over the 2019-2023
period, assuming appropriation of the authorized and necessary
amounts.
Enacting S. 1012 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 1012 would not increase
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 1012 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 1012 is shown in the following table.
The costs of the legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2019 2020 2021 2022 2023 2019-2023
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 1 6 6 6 6 25
Estimated Outlays....................................... 1 4 5 6 6 22
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
1012 will be enacted in 2019 and that the authorized and
necessary amounts will be appropriated for each year. Estimated
outlays are based on historical spending patterns for similar
programs.
Under current law, BOR's authority to provide grants to
Pueblo Indian Tribes to repair and replace irrigation
infrastructure expires in 2019. About $3 million has been
expended for the program since 2013. S. 1012 would authorize
the appropriation of $6 million annually through 2026 for the
grants. CBO estimates that implementing this provision would
cost $21 million over the 2019-2023 period and $21 million
after 2023.
S. 1012 would direct BOR to contract with NAS to study
water management and consumption in the basin, identify
potential effects of climate change, and recommend methods to
enhance drought resiliency and protect the ecosystems and
habitats of endangered species. CBO estimates that completing
the study would cost $1 million in 2019.
Finally, S. 1012 would authorize BOR to assist irrigation
districts and water utilities in the state with projects aimed
to conserve water, coordinate water acquisitions from willing
sellers, and construct infrastructure to secure water supplies
during periods of drought. Under current law, BOR is authorized
to carry out those activities under existing programs and will
continue to provide such assistance. Therefore, CBO estimates
that implementing those provisions would not affect the federal
budget.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 1012 would not increase direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2029.
Mandates: S. 1012 contains no intergovernmental or private-
sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Aurora Swanson;
Mandates: Zachary Byrum.
Estimate reviewed by: Kim P. Cawley, Chief, Natural and
Physical Resources Cost Estimates Unit; H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1012. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1012, as ordered reported.
Congressionally Directed Spending
S. 1012, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
Executive Communications
The testimony provided by the Department of the Interior at
the June 14, 2017, hearing on S. 1012 follows:
Statement of Scott Cameron, Acting Assistant Secretary--Water and
Science, U.S. Department of the Interior
Chairman Flake, Ranking Member King and members of the
Subcommittee, I am Scott Cameron, Acting Assistant Secretary
for Water and Science at the Department of the Interior. I am
pleased to provide the views of the Department of the Interior
(Department) on S. 1012, the New Mexico Drought Preparedness
Act. This bill aims to enhance coordination for water
acquisitions, authorize projects to assist with water
conservation, authorize the study of the lower reaches of the
Middle Rio Grande, support efforts to provide an annual spring
peak flow for the Middle Rio Grande, and provide for a study of
Rio Grande reservoirs. The Department supports many elements of
the New Mexico Drought Preparedness Act of 2017, but has
concerns with some of the new authorizations and with the
language of Section 6 of the bill as detailed later in my
statement.
Although this bill mentions the Upper, Middle, and Lower
Rio Grande basins, as well as the Lower Pecos, Gila, Canadian,
San Francisco and San Juan River basins, the primary focus is
on work in the Middle Rio Grande in New Mexico. The 2016
biological opinion for water operations, river infrastructure
restoration, maintenance, and conservation activities in the
Middle Rio Grande defines the Middle Rio Grande as the entire
width of the 100-year floodplain of the Rio Grande basin and
its tributaries from the Colorado/New Mexico state line to
Elephant Butte Dam. The Bureau of Reclamation's (Reclamation)
Middle Rio Grande Project (Project) extends from the Velarde
area of northern New Mexico south to the backwaters of Elephant
Butte Reservoir. The irrigation features of the Project divert
water from the river to irrigate between 50,000 and 70,000
acres of irrigable land, including an approximate 20,000 acres
of Pueblo Indian land.
Reclamation has been leasing water on the Pecos River and
from San Juan-Chama Project contractors for over a decade to
supplement river flows for endangered species, consistent with
the language of Section 3 of S. 1012. Taxpayers have spent tens
of millions of dollars acquiring San Juan-Chama Project water
and relinquished Rio Grande Compact credit water in recent
years to augment flows in the Middle Rio Grande. However, other
than the relinquished Rio Grande Compact credit water,
Reclamation has yet to lease and make use of more-than-nominal
volumes of native Rio Grande water in New Mexico due to the
administrative, legal, and institutional complexities involved.
In the explanatory statement printed December 11, 2014, for the
Congressional Record, in reference to P.L. 113-235, the
Consolidated and Further Continuing Appropriations Act, 2015,
Congress encouraged Reclamation to pursue efforts to facilitate
agricultural water leasing along the Middle Rio Grande and San
Juan-Chama Projects. In response, Reclamation has started a
pilot leasing program of pre-1907 water rights and is planning
a grant opportunity to solicit the services of outside experts
to build and begin testing the framework for a leasing program
in collaboration with the Middle Rio Grande Conservancy
District (District). This bill would provide Reclamation and
the District with increased flexibility to implement and
effectively manage such a program.
For years, Reclamation has provided funding and technical
assistance for irrigation districts and water utilities in New
Mexico and west Texas to develop sustainable water supplies
under various water conservation programs. Examples of such
assistance include improving efficiency and conservation under
the WaterSMART Program through Water and Energy Efficiency
Grants to entities such as the Elephant Butte Irrigation
District and funding for the Albuquerque Bernalillo County
Water Utility Authority's water recycling and reuse (Title XVI)
project, and through the Native American Affairs Program.
Reclamation is also working with partners to carry out various
landscape-scale efforts through the Basin Study Program.
Reclamation, the District, and fifteen other non-Federal
partners, including Tribal partners, have been working on a
plan of study for a Rio Grande--New Mexico Basin Study. In
addition, the six Middle Rio Grande Pueblos participate in the
Rio Grande Pueblos Irrigation Infrastructure Improvement
Project. Reclamation also provided funding under the
Cooperative Watershed Management Program to expand the Rio
Chama Watershed Group in 2014 to include the lower Rio Chama
Basin, and provided funding to the Upper Rio Grande Watershed
District in 2016 to establish a watershed group to bring
together ranchers, environmental interests, and land management
agencies in the Espanola Basin. Reclamation has provided
Drought Response Program funding in 2016 to the Middle Rio
Grande Conservancy District for both drought contingency
planning and implementation of a drought resiliency project to
install a pumping facility to increase the predictability of
water supplies for District water users. Any water conservation
actions by the District and Pueblos that would result in more
efficient use of the available water supply is welcomed by
Reclamation. However, as indicated previously, existing
programs are available to provide the opportunity to cost-share
conservation actions that will benefit the Rio Grande system.
Section 5(a) of S. 1012 contains provisions granting five
years of a temporary deviation in the operation of Cochiti
Reservoir by the U.S. Army Corps of Engineers. Such deviations,
if found to be hydrologically beneficial, allow for creation of
a spike flow in the Middle Rio Grande through the impoundment
and regulation of spring flows. However, in the past 67 years
of record, conditions for deviation would only have occurred in
five of those years. The Department supports a feasibility
study in partnership with the Army Corps of Engineers and
Cochiti Pueblo to assess maximized operational flexibilities if
the concerns of Cochiti and Santa Ana Pueblos are addressed.
The ability to stage water in the spring to augment the native
flows in the Middle Rio Grande is an important cue to the
endangered Rio Grande silvery minnow to reproduce.
Section 5(b) of S. 1012 authorizes a comprehensive study
and a series of projects in the Isleta and San Acacia reaches
of the Middle Rio Grande aimed at giving Reclamation and other
partnering agencies a better understanding of this area, which
is designated as critical habitat for the Rio Grande silvery
minnow. The Middle Rio Grande below Cochiti Dam is divided into
four reaches defined by locations of mainstem irrigation
diversion dams. The Cochiti Reach extends from Cochiti Dam to
Angostura Diversion Dam. The reach from Angostura Diversion Dam
to Isleta Diversion Dam is called the Albuquerque Reach. The
Isleta Reach is bound upstream by Isleta Diversion Dam and
downstream by San Acacia Diversion Dam. Finally, the reach
below San Acacia Diversion Dam to the headwaters of Elephant
Butte Reservoir is the San Acacia Reach. The study would also
assist with development of a plan for moving forward with
coordinated water conservation measures.
Reclamation and Department policy require scientific
information considered in our decision making to be robust and
of the best available quality. Stakeholders must be able to
trust the information. Section 6 of S. 1012 authorizes a
National Academy of Sciences (NAS) Study of the water and
reservoir management and operation from Heron and El Vado down
to Abiquiu, Cochiti, and Jemez Canyon dams and reservoirs. A
full evaluation of the legal authorities of each of these
reservoirs weighed against the basin's hydrology would likely
provide water managers all along the Rio Grande in New Mexico
with useful information that could prove important as we
struggle to meet growing needs with a decreasing water supply.
A study of this magnitude, however, is not anticipated in
Reclamation's budget, and would have to compete for funding
against numerous existing priorities. Therefore, while we see
the NAS study as the most comprehensive review of Reclamation
operations, we recommend evaluation of ways that this project
can build on the work of other studies, such as the proposed
Rio Grande--New Mexico Basin Study, if it is selected for
funding, and the Rio Chama Pilot Study, which is a review of
river and reservoir operations on the Rio Chama. The Department
would seek to secure cost-share partners for the review,
consistent with the requirements for Basin Studies. This
approach would achieve the study objectives outlined in S.
1012, allow for independent scientific input, and limit
duplication of efforts and resources.
New Mexico has endured almost a decade of drought. An above
average snowpack this spring will allow Reclamation and its
stakeholders to start rebuilding storage in nearly empty
reservoirs. Reclamation is currently in the process of leasing
all of the water that is available at a reasonable price (i.e.
excluding what would be covered under the pilot leasing program
described above).
The Department generally supports language in Sections 8
and 9 of S. 1012 relating to the authorizations for the
WaterSMART Program and under the Reclamation States Emergency
Drought Relief Act. We note, however, that if the sponsor's
aims is to reauthorize the Reclamation States Emergency Drought
Relief Act, Title I of that Act (Section 104(c)) should also be
reauthorized to mirror Title III. There are some technical
changes we would suggest to ensure that the language can be
implemented through Reclamation's existing programs (e.g., the
Department supports retaining a required non-Federal cost share
contribution which allows Reclamation to leverage Federal and
non-Federal funding to construct projects with far more
significant benefits than would otherwise be possible, in the
WaterSMART Drought Response Program and other WaterSMART
programs). We are willing to work with the sponsors and the
Committee to refine those sections, and to ensure that the
additional financial assistance authorities included in Section
7 do not duplicate other existing authorities. In addition, the
legislation should ensure that any drought relief wells funded
should be in response to a critical need and prioritization
process, and do not add to existing problems associated with
groundwater depletion.
Section 10 of S. 1012 provides additional time for
completion of the study originally authorized under Section
9106 of the Omnibus Public Land Management Act of 2009 (P.L.
111-11). The purpose of the study is to assess the feasibility
of projects to repair, rehabilitate, reconstruct, or replace
Pueblo irrigation facilities recommended to be implemented from
fiscal years 2010 through 2019. The study was to be submitted
to Congress in March 2011; however, Reclamation was delayed in
starting the study. Reclamation is currently scheduled to
complete the study in 2017.
All 18 New Mexico Rio Grande Pueblos have agreed to
participate in the project. Reclamation supports the language
in S. 1012 to extend the study period until December 31, 2018,
and extend the ten-year construction period through 2024.
Funding for construction will be dependent on availability.
Because not all projects can be built, Reclamation will
prioritize the projects based on the cost-effectiveness of the
proposed investments.
This concludes my statement. I am pleased to answer
questions at the appropriate time.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1012, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
OMNIBUS PUBLIC LAND MANAGEMENT ACT OF 2009
Public Law 111-11
* * * * * * *
TITLE IX--BUREAU OF RECLAMATION AUTHORIZATIONS
* * * * * * *
Subtitle B--Project Authorizations
* * * * * * *
SEC. 9106. RIO GRANDE PUEBLOS, NEW MEXICO.
* * * * * * *
(c) Irrigation Infrastructure Study.--
(1) Study.--(A) In general.--On the date of enactment
of this Act, the Secretary, in accordance with
subparagraph (B), and in consultation with the Rio
Grande Pueblos, shall--
(i) conduct a study of Pueblo irrigation
infrastructure; and
(ii) based on the results of the study,
develop a list of projects (including a cost
estimate for each project), that are
recommended to be implemented over a 10-year
period to repair, rehabilitate, or reconstruct
Pueblo irrigation infrastructure.
(B) Required consent.--In carrying out subparagraph
(A), the Secretary shall only include each individual
Rio Grande Pueblo that notifies the Secretary that the
Pueblo consents to participate in--
(i) the conduct of the study under
subparagraph (A)(i); and
(ii) the development of the list of projects
under subparagraph (A)(ii) with respect to the
Pueblo.
(2) Priority.--
(A) Consideration of factors.--
(i) In general.--In developing the
list of projects under paragraph
(1)(A)(ii), the Secretary shall--
(I) consider each of the
factors described in
subparagraph (B); and
(II) prioritize the projects
recommended for implementation
based on--
(aa) a review of each
of the factors; and
(bb) a consideration
of the projected
benefits of the project
on completion of the
project.
(ii) Eligibility of projects.--A
project is eligible to be considered
and prioritized by the Secretary if the
project addresses at least 1 factor
described in subparagraph (B).
(B) Factors.--The factors referred to in subparagraph
(A) are--
(i)(I) the extent of disrepair of the Pueblo
irrigation infrastructure; and
(II) the effect of the disrepair on the
ability of the applicable Rio Grande Pueblo to
irrigate agricultural land using Pueblo
irrigation infrastructure;
(ii) whether, and the extent that, the
repair, rehabilitation, or reconstruction of
the Pueblo irrigation infrastructure would
provide an opportunity to conserve water;
(iii)(I) the economic and cultural impacts
that the Pueblo irrigation infrastructure that
is in disrepair has on the applicable Rio
Grande Pueblo; and
(II) the economic and cultural benefits that
the repair, rehabilitation, or reconstruction
of the Pueblo irrigation infrastructure would
have on the applicable Rio Grande Pueblo;
(iv) the opportunity to address water supply
or environmental conflicts in the applicable
river basin if the Pueblo irrigation
infrastructure is repaired, rehabilitated, or
reconstructed; and
(v) the overall benefits of the project to
efficient water operations on the land of the
applicable Rio Grande Pueblo.
(3) Consultation.--In developing the list of projects
under paragraph (1)(A)(ii), the Secretary shall consult
with the Director of the Bureau of Indian Affairs
(including the designated engineer with respect to each
proposed project that affects the Six Middle Rio Grande
Pueblos), the Chief of the Natural Resources
Conservation Service, and the Chief of Engineers to
evaluate the extent to which programs under the
jurisdiction of the respective agencies may be used--
(A) to assist in evaluating projects to
repair, rehabilitate, or reconstruct Pueblo
irrigation infrastructure; and
(B) to implement--
(i) a project recommended for
implementation under paragraph
(1)(A)(ii); or
(ii) any other related project
(including on-farm improvements) that
may be appropriately coordinated with
the repair, rehabilitation, or
reconstruction of Pueblo irrigation
infrastructure to improve the efficient
use of water in the Rio Grande Basin.
(4) Report.--Not later than [2 years after the date
of enactment of this Act] December 31, 2019, the
Secretary shall submit to the Committee on Energy and
Natural Resources of the Senate and the Committee on
Resources of the House of Representatives a report that
includes--
(A) the list of projects recommended for
implementation under paragraph (1)(A)(ii); and
(B) any findings of the Secretary with
respect to--
(i) the study conducted under
paragraph (1)(A)(i);
(ii) the consideration of the factors
under paragraph (2)(B); and
(iii) the consultations under
paragraph (3).
(5) Periodic review.--Not later than 4 years after
the date on which the Secretary submits the report
under paragraph (4) and every 4 years thereafter, the
Secretary, in consultation with each Rio Grande Pueblo,
shall--
(A) review the report submitted under
paragraph (4); and
(B) update the list of projects described in
paragraph (4)(A) in accordance with each factor
described in paragraph (2)(B), as the Secretary
determines to be appropriate.
* * * * * * *
(g) Authorization of Appropriations.--
(1) Study.--There is authorized to be appropriated to
carry out subsection (c) $4,000,000.
(2) Projects.--There is authorized to be appropriated
to carry out subsection (d) $6,000,000 for each of
fiscal years [2010 through 2019] 2018 through 2026.
* * * * * * *
Subtitle F--Secure Water
* * * * * * *
SEC. 9504. WATER MANAGEMENT IMPROVEMENT.
(a) Authorization of Grants and Cooperative Agreements.--
(1) Authority of secretary.--The Secretary may
provide any grant to, or enter into an agreement with,
any eligible applicant to assist the eligible applicant
in planning, designing, or constructing any
improvement--
(A) to conserve water;
(B) to increase water use efficiency;
(C) to facilitate water markets;
(D) to enhance water management, including
increasing the use of renewable energy in the
management and delivery of water;
(E) to accelerate the adoption and use of
advanced water treatment technologies to
increase water supply;
(F) to prevent the decline of species that
the United States Fish and Wildlife Service and
National Marine Fisheries Service have proposed
for listing under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) (or candidate
species that are being considered by those
agencies for such listing but are not yet the
subject of a proposed rule);
(G) to accelerate the recovery of threatened
species, endangered species, and designated
critical habitats that are adversely affected
by Federal reclamation projects or are subject
to a recovery plan or conservation plan under
the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) under which the Commissioner of
Reclamation has implementation
responsibilities; or
(H) to carry out any other activity--
(i) to address any climate-related
impact to the water supply of the
United States that increases ecological
resiliency to the impacts of climate
change; [or]
(ii) to prevent any water-related
crisis or conflict at any watershed
that has a nexus to a Federal
reclamation project located in a
service area; or[.]
(iii) to plan for or address the
impacts of drought.
(2) Application.--To be eligible to receive a grant,
or enter into an agreement with the Secretary under
paragraph (1), an eligible applicant shall--
(A) be located within the States and areas
referred to in the first section of the Act of
June 17, 1902 (43 U.S.C. 391); and
(B) submit to the Secretary an application
that includes a proposal of the improvement or
activity to be planned, designed, constructed,
or implemented by the eligible applicant.
(3) Requirements of grants and cooperative
agreements.--
(A) Compliance with requirements.--Each grant
and agreement entered into by the Secretary
with any eligible applicant under paragraph (1)
shall be in compliance with each requirement
described in subparagraphs (B) through (F).
(B) Agricultural operations.--In carrying out
paragraph (1), the Secretary shall not provide
a grant, or enter into an agreement, for an
improvement to conserve irrigation water unless
the eligible applicant agrees not--
(i) to use any associated water
savings to increase the total irrigated
acreage of the eligible applicant; or
(ii) to otherwise increase the
consumptive use of water in the
operation of the eligible applicant, as
determined pursuant to the law of the
State in which the operation of the
eligible applicant is located.
(C) Nonreimbursable funds.--Any funds
provided by the Secretary to an eligible
applicant through a grant or agreement under
paragraph (1) shall be nonreimbursable.
(D) Title to improvements.--If an
infrastructure improvement to a federally owned
facility is the subject of a grant or other
agreement entered into between the Secretary
and an eligible applicant under paragraph (1),
the Federal Government shall continue to hold
title to the facility and improvements to the
facility.
(E) Cost sharing.--
(i) Federal share.--The Federal share
of the cost of any infrastructure
improvement or activity that is the
subject of a grant or other agreement
entered into between the Secretary and
an eligible applicant under paragraph
(1) shall not exceed 50 percent of the
cost of the infrastructure improvement
or activity.
(ii) Calculation of non-federal
share.--In calculating the non-Federal
share of the cost of an infrastructure
improvement or activity proposed by an
eligible applicant through an
application submitted by the eligible
applicant under paragraph (2), the
Secretary shall--
(I) consider the value of any
in-kind services that
substantially contributes
toward the completion of the
improvement or activity, as
determined by the Secretary;
and
(II) not consider any other
amount that the eligible
applicant receives from a
Federal agency.
(iii) Maximum amount.--The amount
provided to an eligible applicant
through a grant or other agreement
under paragraph (1) shall be not more
than $5,000,000.
(iv) Operation and maintenance
costs.--The non-Federal share of the
cost of operating and maintaining any
infrastructure improvement that is the
subject of a grant or other agreement
entered into between the Secretary and
an eligible applicant under paragraph
(1) shall be 100 percent.
(F) Liability.--
(i) In general.--Except as provided
under chapter 171 of title 28, United
States Code (commonly known as the
`Federal Tort Claims Act'), the United
States shall not be liable for monetary
damages of any kind for any injury
arising out of an act, omission, or
occurrence that arises in relation to
any facility created or improved under
this section, the title of which is not
held by the United States.
(ii) Tort claims act.--Nothing in
this section increases the liability of
the United States beyond that provided
in chapter 171 of title 28, United
States Code (commonly known as the
``Federal Tort Claims Act'').
* * * * * * *