43 U.S.C. § 2405 — Feasibility studies

Page 635 TITLE 43—PUBLIC LANDS § 2405 (C) Form The non-Federal share under subparagraph (A) may be in the form of any in-kind serv- ices that the Secretary determines would contribute substantially toward the conduct and completion of the appraisal investiga- tion. (h) Consultation; identification of funding sources In conducting an appraisal investigation under subsection (a)(2), the Secretary shall— (1) consult and cooperate with the non-Fed- eral project entity and appropriate State, trib- al, regional, and local authorities; (2) consult with the heads of appropriate Federal agencies to— (A) ensure that the proposed rural water supply project does not duplicate a project carried out under the authority of the agen- cy head; and (B) if a duplicate project is being carried out, identify the authority under which the duplicate project is being carried out; and (3) identify what funding sources are avail- able for the proposed rural water supply project. (Pub. L. 109–451, title I, § 105, Dec. 22, 2006, 120 Stat. 3349.) § 2405. Feasibility studies (a) In general On completion of an appraisal report under section 2404(c) of this title that recommends un- dertaking a feasibility study and subject to the availability of appropriations, the Secretary shall— (1) in cooperation with a non-Federal project entity, carry out a study to determine the fea- sibility of the proposed rural water supply project; (2) receive and review a feasibility study that is— (A) developed by the non-Federal project entity, with or without support from the Secretary; and (B) submitted to the Secretary by the non- Federal project entity; or (3)(A) provide a grant to, or enter into a co- operative agreement with, a non-Federal project entity to conduct a feasibility study, for submission to the Secretary, if the Sec- retary determines that— (i) the non-Federal entity is qualified to complete the feasibility study in accordance with the criteria promulgated under sub- section (d); and (ii) using the non-Federal project entity to conduct the feasibility study is a cost-effec- tive alternative for completing the appraisal investigation; or (B) if the Secretary determines not to pro- vide a grant to, or enter into a cooperative agreement with, a non-Federal project entity under subparagraph (A), provide to the non- Federal project entity notice of the deter- mination, including an explanation of the rea- son for the determination. (b) Review of non-Federal feasibility studies (1) In general In conducting a review of a feasibility study submitted under paragraph (2) or (3) of sub- section (a), the Secretary shall— (A) in accordance with the feasibility fac- tors described in subsection (c) and the cri- teria promulgated under subsection (d), as- sess the completeness of the feasibility study; and (B) if the Secretary determines that a fea- sibility study is not complete, notify the non-Federal entity of the determination. (2) Revisions If the Secretary determines under paragraph (1)(B) that a feasibility study is not complete, the non-Federal entity shall pay any costs as- sociated with revising the feasibility study. (c) Feasibility factors Feasibility studies authorized or reviewed under this subchapter shall include an assess- ment of— (1) near- and long-term water demand in the area to be served by the rural water supply project; (2) advancement of public health and safety of any existing rural water supply project and other benefits of the proposed rural water sup- ply project; (3) alternative new water supplies in the study area, including any opportunities to treat and use low-quality water, nonpotable water, water reuse-based supplies, and brack- ish and saline waters through innovative and economically viable treatment technologies; (4) environmental quality and source water protection issues related to the rural water supply project; (5) innovative opportunities for water con- servation in the study area to reduce water use and water system costs, including— (A) nonstructural approaches to reduce the need for the project; and (B) demonstration technologies; (6) the extent to which the project and alter- natives take advantage of economic incentives and the use of market-based mechanisms; (7)(A) the construction costs and projected operations, maintenance, and replacement costs of all alternatives; and (B) the economic feasibility and lowest cost method of obtaining the desired results of each alternative, taking into account the Fed- eral cost-share; (8) the availability of guaranteed loans for a proposed rural water supply project; (9) the financial capability of the non-Fed- eral project entity to pay the non-Federal project entity’s proportionate share of the de- sign and construction costs and 100 percent of operations, maintenance, and replacement costs, including the allocation of costs to each non-Federal project entity in the case of mul- tiple entities; (10) whether the non-Federal project entity has developed an operations, management, and replacement plan to assist the non-Federal project entity in establishing rates and fees for beneficiaries of the rural water supply Page 636 TITLE 43—PUBLIC LANDS § 2405 1 So in original. No par. (2) has been enacted. project that includes a schedule identifying the annual operations, maintenance, and re- placement costs that should be allocated to each non-Federal entity participating in the project; (11)(A) the non-Federal project entity ad- ministrative organization that would imple- ment construction, operations, maintenance, and replacement activities; and (B) the fiscal, administrative, and oper- ational controls to be implemented to manage the project; (12) the extent to which assistance for rural water supply is available under other Federal authorities; (13) the engineering, environmental, and eco- nomic activities to be undertaken to carry out the proposed rural water supply project; (14) the extent to which the project involves partnerships with other State, local, or tribal governments or Federal entities; and (15) in the case of a project intended for In- dian tribes and tribal organizations, the ex- tent to which the project addresses the goal of economic self-sufficiency. (d) Feasibility study criteria (1) In general Not later than 18 months after December 22, 2006, the Secretary shall promulgate criteria (including the feasibility factors listed under subsection (c)) under which the feasibility studies shall be assessed for completeness and appropriateness. (2) Inclusions The Secretary shall include in the criteria promulgated under paragraph (1) methods to scale the level of effort needed to complete the feasibility assessment relative to the total size and cost of the proposed rural water sup- ply project and reduce total costs to non-Fed- eral entities. (e) Feasibility report (1) 1 In general After completion of appropriate feasibility studies for rural water supply projects that ad- dress the factors described in subsection (c) and the criteria promulgated under subsection (d), the Secretary shall— (A) develop a feasibility report that in- cludes— (i) a recommendation of the Secretary on— (I) whether the rural water supply project should be authorized for con- struction; and (II) the appropriate non-Federal share of construction costs, which shall be— (aa) at least 25 percent of the total construction costs; and (bb) determined based on an analysis of the capability-to-pay information considered under subsections (c)(9) and (f); and (ii) if the Secretary recommends that the project should be authorized for con- struction— (I) what amount of grants, loan guar- antees, or combination of grants and loan guarantees should be used to pro- vide the Federal cost share; (II) a schedule that identifies the an- nual operations, maintenance, and re- placement costs that should be allocated to each non-Federal entity participating in the rural water supply project; and (III) an assessment of the financial ca- pability of each non-Federal entity par- ticipating in the rural water supply project to pay the allocated annual oper- ation, maintenance, and replacement costs for the rural water supply project; (B) submit the report to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives; (C) make the report publicly available, along with associated study documents; and (D) publish in the Federal Register a no- tice of the availability of the results. (f) Capability-to-pay (1) In general In evaluating a proposed rural water supply project under this section, the Secretary shall— (A) consider the financial capability of any non-Federal project entities participating in the rural water supply project to pay 25 per- cent or more of the capital construction costs of the rural water supply project; and (B) recommend an appropriate Federal share and non-Federal share of the capital construction costs, as determined by the Secretary. (2) Factors In determining the financial capability of non-Federal project entities to pay for a rural water supply project under paragraph (1), the Secretary shall evaluate factors for the project area, relative to the State average, in- cluding— (A) per capita income; (B) median household income; (C) the poverty rate; (D) the ability of the non-Federal project entity to raise tax revenues or assess fees; (E) the strength of the balance sheet of the non-Federal project entity; and (F) the existing cost of water in the region. (3) Indian tribes In determining the capability-to-pay of In- dian tribe project beneficiaries, the Secretary may consider deferring the collection of all or part of the non-Federal construction costs ap- portioned to Indian tribe project beneficiaries unless or until the Secretary determines that the Indian tribe project beneficiaries should pay— (A) the costs allocated to the beneficiaries; or (B) an appropriate portion of the costs. (g) Cost-sharing requirement (1) In general Except as otherwise provided in this sub- section, the Federal share of the cost of a fea- Page 637 TITLE 43—PUBLIC LANDS § 2408 1 So in original. The comma probably should follow ‘‘to’’. sibility study carried out under this section shall not exceed 50 percent of the study costs. (2) Form The non-Federal share under paragraph (1) may be in the form of any in-kind services that the Secretary determines would con- tribute substantially toward the conduct and completion of the study. (3) Financial hardship The Secretary may increase the Federal share of the costs of a feasibility study if the Secretary determines, based on a demonstra- tion of financial hardship, that the non-Fed- eral participant is unable to contribute at least 50 percent of the costs of the study. (4) Larger communities In conducting a feasibility study of a rural water supply system that includes a commu- nity with a population in excess of 50,000 in- habitants, the Secretary may require the non- Federal project entity to pay more than 50 percent of the costs of the study. (h) Consultation and cooperation In addition to the non-Federal project entity, the Secretary shall consult and cooperate with appropriate Federal, State, tribal, regional, and local authorities during the conduct of each fea- sibility assessment and development of the fea- sibility report conducted under this subchapter. (Pub. L. 109–451, title I, § 106, Dec. 22, 2006, 120 Stat. 3351.) § 2406. Miscellaneous (a) Authority of Secretary The Secretary may enter into contracts, fi- nancial assistance agreements, and such other agreements, and promulgate such regulations, as are necessary to carry out this subchapter. (b) Transfer of projects Nothing in this subchapter authorizes the transfer of pre-existing facilities or pre-existing components of any water system from Federal to private ownership or from private to Federal ownership. (c) Federal reclamation law Nothing in this subchapter supersedes or amends any Federal law associated with a project, or portion of a project, constructed under Federal reclamation law. (d) Interagency coordination The Secretary shall coordinate the Program carried out under this subchapter with existing Federal and State rural water and wastewater programs to facilitate the most efficient and ef- fective solution to meeting the water needs of the non-Federal project sponsors. (e) Multiple Indian tribes In any case in which a contract is entered into with, or a grant is made, to 1 an organization to perform services benefitting more than 1 Indian tribe under this subchapter, the approval of each such Indian tribe shall be a prerequisite to en- tering into the contract or making the grant. (f) Ownership of facilities Title to any facility planned, designed, and recommended for construction under this sub- chapter shall be held by the non-Federal project entity. (g) Expedited procedures If the Secretary determines that a community to be served by a proposed rural water supply project has urgent and compelling water needs, the Secretary shall, to the maximum extent practicable, expedite appraisal investigations and reports conducted under section 2404 of this title and feasibility studies and reports con- ducted under section 2405 of this title. (h) Effect on State water law (1) In general Nothing in this subchapter preempts or af- fects State water law or an interstate compact governing water. (2) Compliance required The Secretary shall comply with State water laws in carrying out this subchapter. (i) No additional requirements Nothing in this subchapter requires a feasi- bility study for, or imposes any other additional requirements with respect to, rural water supply projects or programs that are authorized before December 22, 2006. (Pub. L. 109–451, title I, § 107, Dec. 22, 2006, 120 Stat. 3355.) § 2407. Reports Beginning in fiscal year 2007, and each fiscal year thereafter through fiscal year 2012, the Sec- retary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Rep- resentatives an annual report that describes the number and type of full-time equivalent posi- tions in the Department of the Interior and the amount of overhead costs of the Department of the Interior that are allocated to carrying out this subchapter for the applicable fiscal year. (Pub. L. 109–451, title I, § 108, Dec. 22, 2006, 120 Stat. 3356.) § 2408. Authorization of appropriations (a) In general There is authorized to be appropriated to carry out this subchapter $15,000,000 for each of fiscal years 2007 through 2016, to remain avail- able until expended. (b) Rural water programs assessment Of the amounts made available under sub- section (a), not more than $1,000,000 may be made available to carry out section 2403 of this title for each of fiscal years 2007 and 2008. (c) Construction costs No amounts made available under this section shall be used to pay construction costs associ- ated with any rural water supply project. (Pub. L. 109–451, title I, § 109, Dec. 22, 2006, 120 Stat. 3356.)