43 U.S.C. § 2404 — Appraisal investigations

Page 633 TITLE 43—PUBLIC LANDS § 2404 chapter, develop and publish in the Federal Reg- ister criteria for— (1) determining the eligibility of a rural community for assistance under the Program; and (2) prioritizing requests for assistance under the Program. (d) Factors The criteria developed under subsection (c) shall take into account such factors as wheth- er— (1) a rural water supply project— (A) serves— (i) rural areas and small communities; or (ii) Indian tribes; or (B) promotes and applies a regional or wa- tershed perspective to water resources man- agement; (2) there is an urgent and compelling need for a rural water supply project that would— (A) improve the health or aesthetic qual- ity of water; (B) result in continuous, measurable, and significant water quality benefits; or (C) address current or future water supply needs; (3) a rural water supply project helps meet applicable requirements established by law; and (4) a rural water supply project is cost effec- tive. (e) Inclusions The Secretary may include— (1) to the extent that connection provides a reliable water supply, a connection to pre-ex- isting infrastructure (including impoundments and conveyance channels) as part of a rural water supply project; and (2) notwithstanding the limitation on popu- lation under section 2401(9)(A) of this title, a town or community with a population in ex- cess of 50,000 inhabitants in an area served by a rural water supply project if, at the discre- tion of the Secretary, the town or community is considered to be a critical partner in the rural supply project. (Pub. L. 109–451, title I, § 103, Dec. 22, 2006, 120 Stat. 3347.) § 2403. Rural water programs assessment (a) In general In consultation with the Secretary of Agri- culture, the Administrator of the Environ- mental Protection Agency, the Director of the Indian Health Service, the Secretary of Housing and Urban Development, and the Secretary of the Army, the Secretary shall develop an assess- ment of— (1) the status of all rural water supply projects under the jurisdiction of the Sec- retary authorized but not completed prior to December 22, 2006, including appropriation amounts, the phase of development, total an- ticipated costs, and obstacles to completion; (2) the current plan (including projected fi- nancial and workforce requirements) for the completion of the projects identified in para- graph (1) within the time frames established under the provisions of law authorizing the projects or the final engineering reports for the projects; (3) the demand for new rural water supply projects; (4) rural water programs within other agen- cies and a description of the extent to which those programs provide support for rural water supply projects and water treatment programs in Reclamation States, including an assessment of the requirements, funding lev- els, and conditions of eligibility for the pro- grams assessed; (5) the extent of the demand that the Sec- retary can meet with the Program; (6) how the Program will complement au- thorities already within the jurisdiction of the Secretary and the heads of the agencies with whom the Secretary consults; and (7) improvements that can be made to co- ordinate and integrate the authorities of the agencies with programs evaluated under para- graph (4), including any recommendations to consolidate some or all of the activities of the agencies with respect to rural water supply. (b) Consultation with States Before finalizing the assessment developed under subsection (a), the Secretary shall solicit comments from States with identified rural water needs. (c) Report Not later than 2 years after December 22, 2006, 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 detailed report on the assess- ment conducted under subsection (a). (Pub. L. 109–451, title I, § 104, Dec. 22, 2006, 120 Stat. 3348.) § 2404. Appraisal investigations (a) In general On request of a non-Federal project entity with respect to a proposed rural water supply project that meets the eligibility criteria pub- lished under section 2402(c) of this title and sub- ject to the availability of appropriations, the Secretary may— (1) receive and review an appraisal investiga- tion 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; (2) conduct an appraisal investigation; or (3) provide a grant to, or enter into a cooper- ative agreement with, the non-Federal project entity to conduct an appraisal investigation, if the Secretary determines that— (A) the non-Federal project entity is quali- fied to complete the appraisal investigation in accordance with the criteria published under section 2402(c) of this title; and (B) using the non-Federal project entity to conduct the appraisal investigation is a cost-effective alternative for completing the appraisal investigation. Page 634 TITLE 43—PUBLIC LANDS § 2404 (b) Deadline An appraisal investigation conducted under subsection (a) shall be scheduled for completion not later than 2 years after the date on which the appraisal investigation is initiated. (c) Appraisal report In accordance with subsection (f), after an ap- praisal investigation is submitted to the Sec- retary under subsection (a)(1) or completed under paragraph (2) or (3) of subsection (a), the Secretary shall prepare an appraisal report that— (1) considers— (A) whether the project meets— (i) the appraisal criteria developed under subsection (d); and (ii) the eligibility criteria developed under section 2402(c) of this title; (B) whether viable water supplies and water rights exist to supply the project, in- cluding all practicable water sources such as lower quality waters, nonpotable waters, and water reuse-based water supplies; (C) whether the project has a positive ef- fect on public health and safety; (D) whether the project will meet water demand, including projected future needs; (E) the extent to which the project pro- vides environmental benefits, including source water protection; (F) whether the project applies a regional or watershed perspective and promotes bene- fits in the region in which the project is car- ried out; (G) whether the project— (i)(I) implements an integrated resources management approach; or (II) enhances water management flexi- bility, including providing for— (aa) local control to manage water sup- plies under varying water supply condi- tions; and (bb) participation in water banking and markets for domestic and environ- mental purposes; and (ii) promotes long-term protection of water supplies; (H) preliminary cost estimates for the project; and (I) whether the non-Federal project entity has the capability to pay 100 percent of the costs associated with the operations, main- tenance, and replacement of the facilities constructed or developed as part of the rural water supply project; and (2) provides recommendations on whether a feasibility study should be initiated under sec- tion 2405(a) of this title. (d) Appraisal criteria (1) In general Not later than 1 year after December 22, 2006, the Secretary shall promulgate criteria (including appraisal factors listed under sub- section (c)) against which the appraisal inves- tigations shall be assessed for completeness and appropriateness for a feasibility study. (2) Inclusions To minimize the cost of a rural water supply project to a non-Federal project entity, the Secretary shall include in the criteria meth- ods to scale the level of effort needed to com- plete the appraisal investigation relative to the total size and cost of the proposed rural water supply project. (e) Review of appraisal investigation (1) In general Not later than 90 days after the date of sub- mission of an appraisal investigation under paragraph (1) or (3) of subsection (a), the Sec- retary shall provide to the non-Federal entity that conducted the investigation a determina- tion of whether the investigation has included the information necessary to determine whether the proposed rural water supply project satisfies the criteria promulgated under subsection (d). (2) No satisfaction of criteria If the Secretary determines that the ap- praisal investigation submitted by a non-Fed- eral entity does not satisfy the criteria pro- mulgated under subsection (d), the Secretary shall inform the non-Federal entity of the rea- sons why the appraisal investigation is defi- cient. (3) Responsibility of Secretary If an appraisal investigation as first sub- mitted by a non-Federal entity does not pro- vide all necessary information, as defined by the Secretary, the Secretary shall have no ob- ligation to conduct further analysis until the non-Federal project entity submitting the ap- praisal study conducts additional investiga- tion and resubmits the appraisal investigation under this subsection. (f) Appraisal report Once the Secretary has determined that an in- vestigation provides the information necessary under subsection (e), the Secretary shall— (1) complete the appraisal report required under subsection (c); (2) make available to the public, on request, the appraisal report prepared under this sub- chapter; and (3) promptly publish in the Federal Register a notice of the availability of the results. (g) Costs (1) Federal share The Federal share of an appraisal investiga- tion conducted under subsection (a) shall be 100 percent of the total cost of the appraisal investigation, up to $200,000. (2) Non-Federal share (A) In general Except as provided in subparagraph (B), if the cost of conducting an appraisal inves- tigation is more than $200,000, the non-Fed- eral share of the costs in excess of $200,000 shall be 50 percent. (B) Exception The Secretary may reduce the non-Federal share required under subparagraph (A) if the Secretary determines that there is an over- whelming Federal interest in the appraisal investigation. 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