42 U.S.C. § 10364 — Water management improvement

Page 8044 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10364 1 See Extension of Authorization of Appropriations note below. tion laws that govern the operation of any Fed- eral reclamation project. (f) Authorization of appropriations There are authorized to be appropriated such sums as are necessary to carry out this section for each of fiscal years 2009 through 2023,1 to re- main available until expended. (Pub. L. 111–11, title IX, § 9503, Mar. 30, 2009, 123 Stat. 1332.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act of 1973, referred to in subsec. (b)(3)(E), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§ 1531 et seq.) of Title 16, Conservation. For complete classi- fication of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables. Statutory Notes and Related Subsidiaries EXTENSION OF AUTHORIZATION OF APPROPRIATIONS Pub. L. 118–42, div. D, title II, § 207, Mar. 9, 2024, 138 Stat. 195, provided that: ‘‘Section 9503(f) of the Omnibus Public Land Management Act of 2009 (42 U.S.C. 10363(f)) shall be applied by substituting ‘2024’ for ‘2023’.’’ § 10364. 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 ap- plicant to assist the eligible applicant in plan- ning, designing, or constructing any improve- ment or carrying out any activity— (A) to conserve water; (B) to increase water use efficiency; (C) to facilitate water markets; (D) to enhance water management, includ- ing 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 assist States and water users in complying with interstate compacts or re- ducing basin water supply-demand imbal- ances; (G) to achieve the prevention of the de- cline 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); (H) to achieve the acceleration of the re- covery of threatened species, endangered species, and designated critical habitats that are adversely affected by Federal reclama- tion projects or are subject to a recovery plan or conservation plan under the Endan- gered Species Act of 1973 (16 U.S.C. 1531 et seq.) under which the Commissioner of Rec- lamation has implementation responsibil- ities; (I) to improve the condition of a natural feature; or (J) 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; (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— (i) the States and areas referred to in section 391 of title 43; (ii) the State of Alaska; (iii) the State of Hawaii; or (iv) the Commonwealth of Puerto Rico; and (B) submit to the Secretary an application that includes— (i) a proposal of the improvement or ac- tivity to be planned, designed, con- structed, or implemented by the eligible applicant; and (ii) for a project that is intended to have a quantifiable water savings and would re- ceive a grant of $500,000 or more— (I) a proposal for a monitoring plan of at least 5 years that would demonstrate ways in which the proposed improvement or activity would result in improved streamflows or aquatic habitat; or (II) for a project that does not antici- pate improved streamflows or aquatic habitat, an analysis of ways in which the proposed improvement or activity would contribute to 1 or more of the other ob- jectives described in paragraph (1). (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 subpara- graphs (B) through (F). (B) Agricultural operations (i) In general Except as provided in clause (ii), in car- rying out paragraph (1), the Secretary shall not provide a grant, or enter into an agreement, for an improvement to con- serve 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 consump- tive use of water in the operation of the eligible applicant, as determined pursu- ant to the law of the State in which the operation of the eligible applicant is lo- cated. Page 8045 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10364 (ii) Indian tribes In the case of an eligible applicant that is an Indian tribe, in carrying out para- graph (1), the Secretary shall not provide a grant, or enter into an agreement, for an improvement to conserve irrigation water unless the Indian tribe agrees not— (I) to use any associated water savings to increase the total irrigated acreage more than the water right of that Indian tribe, as determined by— (aa) a court decree; (bb) a settlement; (cc) a law; or (dd) any combination of the authori- ties described in items (aa) through (cc); or (II) to otherwise increase the consump- tive use of water more than the water right of the Indian tribe described in subclause (I). (C) Nonreimbursable funds Any funds provided by the Secretary to an eligible applicant through a grant or agree- ment under paragraph (1) shall be non- reimbursable. (D) Title to improvements If an infrastructure improvement to a fed- erally owned facility is the subject of a grant or other agreement entered into be- tween the Secretary and an eligible appli- cant under paragraph (1), the Federal Gov- ernment shall continue to hold title to the facility and improvements to the facility. (E) Cost sharing (i) Federal share (I) In general Except as provided in subclause (II), the Federal share of the cost of any in- frastructure improvement or activity that is the subject of a grant or other agreement entered into between the Sec- retary and an eligible applicant under paragraph (1) shall not exceed 50 percent of the cost of the infrastructure im- provement or activity. (II) Increased Federal share for certain infrastructure improvements and ac- tivities The Federal share of the cost of an in- frastructure improvement or activity shall not exceed 75 percent of the cost of the infrastructure improvement or activ- ity, if— (aa) the infrastructure improvement or activity was developed as part of a collaborative process by— (AA) a watershed group (as defined in section 1015 of title 16); or (BB) a water user and 1 or more stakeholders with diverse interests; and (bb) the majority of the benefits of the infrastructure improvement or ac- tivity, as determined by the Secretary, are for the purpose of advancing 1 or more components of an established strategy or plan to increase the reli- ability of water supply for consump- tive and nonconsumptive ecological values. (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 appli- cant 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 improve- ment 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 ap- plicant through a grant or other agree- ment under paragraph (1) shall be not more than $5,000,000. (iv) Operation and maintenance costs The non-Federal share of the cost of op- erating and maintaining any infrastruc- ture improvement that is the subject of a grant or other agreement entered into be- tween the Secretary and an eligible appli- cant under paragraph (1) shall be 100 per- cent. (F) Liability (i) In general Except as provided under chapter 171 of title 28 (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 rela- tion 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 li- ability of the United States beyond that provided in chapter 171 of title 28 (com- monly known as the ‘‘Federal Tort Claims Act’’). (4) Priority In providing grants to, and entering into agreements for, projects intended to have a quantifiable water savings under this sub- section, the Secretary shall give priority to projects that enhance drought resilience by benefitting the water supply and ecosystem. (b) Research agreements (1) Authority of Secretary The Secretary may enter into 1 or more agreements with any university, nonprofit re- search institution, or eligible applicant to fund any research activity that is designed— (A) to conserve water resources; (B) to increase the efficiency of the use of water resources; (C) to restore a natural feature or use a na- ture-based feature to reduce water supply Page 8046 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10364 and demand imbalances or the risk of drought or flood; or (D) to enhance the management of water resources, including increasing the use of re- newable energy in the management and de- livery of water. (2) Terms and conditions of Secretary (A) In general An agreement entered into between the Secretary and any university, institution, or organization described in paragraph (1) shall be subject to such terms and conditions as the Secretary determines to be appropriate. (B) Availability The agreements under this subsection shall be available to all Reclamation projects and programs that may benefit from project-specific or programmatic coop- erative research and development. (c) Mutual benefit Grants or other agreements made under this section may be for the mutual benefit of the United States and the entity that is provided the grant or enters into the cooperative agree- ment. (d) Relationship to project-specific authority This section shall not supersede any existing project-specific funding authority. (e) Authorization of appropriations There is authorized to be appropriated to carry out this section $920,000,000, to remain available until expended. (Pub. L. 111–11, title IX, § 9504, Mar. 30, 2009, 123 Stat. 1334; Pub. L. 113–235, div. D, title II, § 203, Dec. 16, 2014, 128 Stat. 2311; Pub. L. 114–113, div. D, title II, § 206, Dec. 18, 2015, 129 Stat. 2407; Pub. L. 114–322, title III, § 4009(d), Dec. 16, 2016, 130 Stat. 1870; Pub. L. 115–244, div. A, title II, § 205(b), Sept. 21, 2018, 132 Stat. 2906; Pub. L. 116–9, title VIII, § 8501, Mar. 12, 2019, 133 Stat. 826; Pub. L. 116–94, div. C, title II, § 203, Dec. 20, 2019, 133 Stat. 2669; Pub. L. 116–260, div. D, title II, § 203, div. FF, title XI, § 1106(b)–(d), Dec. 27, 2020, 134 Stat. 1363, 3241, 3242; Pub. L. 117–103, div. D, title II, § 203, Mar. 15, 2022, 136 Stat. 221; Pub. L. 117–328, div. D, title II, § 203, Dec. 29, 2022, 136 Stat. 4631; Pub. L. 118–42, div. D, title II, § 203, Mar. 9, 2024, 138 Stat. 194.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act of 1973, referred to in subsec. (a)(1)(G), (H), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§ 1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables. Section 206 of the Energy and Water Development and Related Agencies Appropriations Act, 2015, referred to in subsec. (e), is section 206 of div. D of Pub. L. 113–235, which is set out as a note under section 620 of Title 43, Public Lands. CODIFICATION Pub. L. 116–260, § 203 and § 1106(d), both amended sub- sec. (e) of this section by striking ‘‘$530,000,000’’ and in- serting different new dollar amounts. In addition, sec- tion 1106(d) inserted the following condition: ‘‘subject to the condition that $50,000,000 of that amount shall be used to carry out section 206 of the Energy and Water Development and Related Agencies Appropriations Act, 2015 (43 U.S.C. 620 note; Public Law 113–235)’’. The amendment by section 1106(d) could not be executed as written because ‘‘$530,000,000’’ no longer appeared in text after the amendment by section 203, and therefore, the text does not reflect the insertion of the condition. Pub. L. 117–103, § 203, subsequently amended subsec. (e) as it read after the amendment by section 203 of Pub. L. 116–260. AMENDMENTS 2024—Subsec. (e). Pub. L. 118–42 substituted ‘‘$920,000,000’’ for ‘‘$820,000,000’’. 2022—Subsec. (e). Pub. L. 117–328 substituted ‘‘$820,000,000’’ for ‘‘$750,000,000’’. Pub. L. 117–103 substituted ‘‘$750,000,000’’ for ‘‘$610,000,000’’. See Codification note above. 2020—Subsec. (a)(1). Pub. L. 116–260, § 1106(b)(1)(A), in- serted ‘‘or carrying out any activity’’ after ‘‘any im- provement’’ in introductory provisions. Subsec. (a)(1)(F). Pub. L. 116–260, § 1106(b)(1)(C), added subpar. (F). Former subpar. (F) redesignated (G). Subsec. (a)(1)(G). Pub. L. 116–260, § 1106(b)(1)(D), sub- stituted ‘‘to achieve the prevention of’’ for ‘‘to pre- vent’’. Pub. L. 116–260, § 1106(b)(1)(B), redesignated subpar. (F) as (G). Former subpar. (G) redesignated (H). Subsec. (a)(1)(H). Pub. L. 116–260, § 1106(b)(1)(E), sub- stituted ‘‘to achieve the acceleration of’’ for ‘‘to accel- erate’’ and struck out ‘‘or’’ at end. Pub. L. 116–260, § 1106(b)(1)(B), redesignated subpar. (G) as (H). Former subpar. (H) redesignated (J). Subsec. (a)(1)(I). Pub. L. 116–260, § 1106(b)(1)(F), added subpar. (I). Subsec. (a)(1)(J). Pub. L. 116–260, § 1106(b)(1)(B), redes- ignated subpar. (H) as (J). Subsec. (a)(1)(J)(iii). Pub. L. 116–260, § 1106(b)(1)(G), added cl. (iii). Subsec. (a)(2)(A)(iv). Pub. L. 116–260, § 1106(b)(2)(A), added cl. (iv). Subsec. (a)(2)(B). Pub. L. 116–260, § 1106(b)(2)(B), added subpar. (B) and struck out former subpar. (B) which read as follows: ‘‘submit to the Secretary an applica- tion that includes a proposal of the improvement or ac- tivity to be planned, designed, constructed, or imple- mented by the eligible applicant.’’ Subsec. (a)(3)(E)(i). Pub. L. 116–260, § 1106(b)(3), added cl. (i) and struck out former cl. (i). Prior to amend- ment, text read as follows: ‘‘The Federal share of the cost of any infrastructure improvement or activity that is the subject of a grant or other agreement en- tered into between the Secretary and an eligible appli- cant under paragraph (1) shall not exceed 50 percent of the cost of the infrastructure improvement or activ- ity.’’ Subsec. (a)(4). Pub. L. 116–260, § 1106(b)(4), added par. (4). Subsec. (b)(1). Pub. L. 116–260, § 1106(c)(1), substituted ‘‘or eligible applicant’’ for ‘‘or organization with water or power delivery authority’’ in introductory provi- sions. Subsec. (b)(1)(C), (D). Pub. L. 116–260, § 1106(c)(2)–(4), added subpar. (C) and redesignated former subpar. (C) as (D). Subsec. (e). Pub. L. 116–260, § 1106(d), which directed substitution of ‘‘$700,000,000, subject to the condition that $50,000,000 of that amount shall be used to carry out section 206 of the Energy and Water Development and Related Agencies Appropriations Act, 2015 (43 U.S.C. 620 note; Public Law 113–235)’’ for ‘‘$530,000,000’’, could not be executed because ‘‘$530,000,000’’ did not ap- pear in text after the intervening amendment by Pub. L. 116–260, § 203. See Codification note above and note below. Pub. L. 116–260, § 203, substituted ‘‘$610,000,000’’ for ‘‘$530,000,000’’. See Codification note above. 2019—Subsec. (a)(2)(A). Pub. L. 116–9, § 8501(1), sub- stituted ‘‘within—’’ for ‘‘within’’, inserted cl. (i) des- Page 8047 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10366 ignation before ‘‘the States’’, and added cls. (ii) and (iii). Subsec. (a)(3)(B). Pub. L. 116–9, § 8501(2), designated existing provisions as cl. (i) and inserted heading, sub- stituted ‘‘Except as provided in clause (ii), in carrying’’ for ‘‘In carrying’’ in introductory provisions, redesig- nated former cls. (i) and (ii) as subcls. (I) and (II), re- spectively, of cl. (i) and realigned margins, and added cl. (ii). Subsec. (e). Pub. L. 116–94 substituted ‘‘$530,000,000’’ for ‘‘$480,000,000’’. 2018—Subsec. (e). Pub. L. 115–244 substituted ‘‘$480,000,000’’ for ‘‘$450,000,000’’. 2016—Subsec. (e). Pub. L. 114–322 substituted ‘‘$450,000,000’’ for ‘‘$350,000,000’’. 2015—Subsec. (e). Pub. L. 114–113 substituted ‘‘$350,000,000’’ for ‘‘$300,000,000’’. 2014—Subsec. (e). Pub. L. 113–235 substituted ‘‘$300,000,000’’ for ‘‘$200,000,000’’. Statutory Notes and Related Subsidiaries FUNDING Pub. L. 114–322, title III, § 4009(d), Dec. 16, 2016, 130 Stat. 1870, as amended by Pub. L. 116–260, div. FF, title XI, § 1106(e), Dec. 27, 2020, 134 Stat. 3243, provided that: ‘‘Section 9504 of the Omnibus Public Land Management Act of 2009 (42 U.S.C. 10364) is amended in subsection (e) by striking ‘$350,000,000’ and inserting ‘$450,000,000’.’’ [Amendment of section 4009(d) of Pub. L. 114–322, set out above, by section 1106(e) of div. FF of Pub. L. 116–260 struck out before period at end ‘‘on the condi- tion that of that amount, $50,000,000 of it is used to carry out section 206 of the Energy and Water Develop- ment and Related Agencies Appropriations Act, 2015 (43 U.S.C. 620 note; Public Law 113–235)’’.] § 10365. Hydroelectric power assessment (a) Duty of Secretary of Energy The Secretary of Energy, in consultation with the Administrator of each Federal Power Mar- keting Administration, shall assess each effect of, and risk resulting from, global climate change with respect to water supplies that are required for the generation of hydroelectric power at each Federal water project that is ap- plicable to a Federal Power Marketing Adminis- tration. (b) Access to appropriate data (1) In general In carrying out each assessment under sub- section (a), the Secretary of Energy shall con- sult with the United States Geological Survey, the National Oceanic and Atmospheric Admin- istration, the program, and each appropriate State water resource agency, to ensure that the Secretary of Energy has access to the best available scientific information with respect to presently observed impacts and projected future impacts of global climate change on water supplies that are used to produce hydro- electric power. (2) Access to data for certain assessments In carrying out each assessment under sub- section (a), with respect to the Bonneville Power Administration and the Western Area Power Administration, the Secretary of En- ergy shall consult with the Commissioner to access data and other information that— (A) is collected by the Commissioner; and (B) the Secretary of Energy determines to be necessary for the conduct of the assess- ment. (c) Report Not later than 2 years after March 30, 2009, and every 5 years thereafter, the Secretary of En- ergy shall submit to the appropriate committees of Congress a report that describes— (1) each effect of, and risk resulting from, global climate change with respect to— (A) water supplies used for hydroelectric power generation; and (B) power supplies marketed by each Fed- eral Power Marketing Administration, pur- suant to— (i) long-term power contracts; (ii) contingent capacity contracts; and (iii) short-term sales; and (2) each recommendation of the Adminis- trator of each Federal Power Marketing Ad- ministration relating to any change in any op- eration or contracting practice of each Fed- eral Power Marketing Administration to ad- dress each effect and risk described in para- graph (1), including the use of purchased power to meet long-term commitments of each Fed- eral Power Marketing Administration. (d) Authority The Secretary of Energy may enter into con- tracts, grants, or other agreements with appro- priate entities to carry out this section. (e) Costs (1) Nonreimbursable Any costs incurred by the Secretary of En- ergy in carrying out this section shall be non- reimbursable. (2) PMA costs Each Federal Power Marketing Administra- tion shall incur costs in carrying out this sec- tion only to the extent that appropriated funds are provided by the Secretary of Energy for that purpose. (f) Authorization of appropriations There are authorized to be appropriated such sums as are necessary to carry out this section for each of fiscal years 2009 through 2023, to re- main available until expended. (Pub. L. 111–11, title IX, § 9505, Mar. 30, 2009, 123 Stat. 1336.) § 10366. Climate change and water intragovernmental panel (a) Establishment The Secretary and the Administrator shall es- tablish and lead a climate change and water intragovernmental panel— (1) to review the current scientific under- standing of each impact of global climate change on the quantity and quality of fresh- water resources of the United States; and (2) to develop any strategy that the panel de- termines to be necessary to improve observa- tional capabilities, expand data acquisition, or take other actions— (A) to increase the reliability and accu- racy of modeling and prediction systems to benefit water managers at the Federal, State, and local levels; and (B) to increase the understanding of the impacts of climate change on aquatic eco- systems.