[Senate Report 116-155]
[From the U.S. Government Publishing Office]
Calendar No. 276
116th Congress } { Report
SENATE
1st Session } { 116-155
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AQUIFER RECHARGE FLEXIBILITY ACT
_______
October 29, 2019.--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. 1570]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1570) to provide flexibility to allow
greater aquifer recharge, 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.
AMENDMENT
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Aquifer Recharge Flexibility Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Bureau.--The term ``Bureau'' means the Bureau of
Reclamation.
(2) Commissioner.--The term ``Commissioner'' means the
Commissioner of Reclamation.
(3) Eligible land.--The term ``eligible land'', with respect
to a Reclamation project, means land that--
(A) is authorized to receive water under State law;
and
(B) shares an aquifer with land located in the
service area of the Reclamation project.
(4) Net water storage benefit.--The term ``net water storage
benefit'' means an increase in the volume of water that is--
(A) stored in 1 or more aquifers; and
(B)(i) available for use within the authorized
service area of a Reclamation project; or
(ii) stored on a long-term basis to avoid or reduce
groundwater overdraft.
(5) Reclamation facility.--The term ``Reclamation facility''
means each of the infrastructure assets that are owned by the
Bureau at a Reclamation project.
(6) Reclamation project.--The term ``Reclamation project''
means any reclamation or irrigation project, including
incidental features thereof, authorized by Federal reclamation
law or the Act of August 11, 1939 (commonly known as the
``Water Conservation and Utilization Act'') (53 Stat. 1418,
chapter 717; 16 U.S.C. 590y et seq.), or constructed by the
United States pursuant to such law, or in connection with which
there is a repayment or water service contract executed by the
United States pursuant to such law, or any project constructed
by the Secretary through the Bureau for the reclamation of
land.
(7) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 3. FLEXIBILITY TO ALLOW GREATER AQUIFER RECHARGE IN WESTERN
STATES.
(a) Use of Reclamation Facilities.--
(1) In general.--The Commissioner may allow the use of excess
capacity in Reclamation facilities for aquifer recharge of non-
Reclamation project water, subject to applicable rates,
charges, and public participation requirements, on the
condition that--
(A) the use--
(i) shall not be implemented in a manner that
is detrimental to--
(I) any power service or water
contract for the Reclamation project;
or
(II) any obligations for fish,
wildlife, or water quality protection
applicable to the Reclamation project;
(ii) shall be consistent with water quality
guidelines for the Reclamation project;
(iii) shall comply with all applicable--
(I) Federal laws; and
(II) policies of the Bureau; and
(iv) shall comply with all applicable State
laws and policies; and
(B) the non-Federal party to an existing contract for
water or water capacity in a Reclamation facility
consents to the use of the Reclamation facility under
this subsection.
(2) Effect on existing contracts.--Nothing in this subsection
affects a contract--
(A) in effect on the date of enactment of this Act;
and
(B) under which the use of excess capacity in a
Bureau conveyance facility for carriage of non-
Reclamation project water for aquifer recharge is
allowed.
(b) Aquifer Recharge on Eligible Land.--
(1) In general.--Subject to paragraphs (3) and (4), the
Secretary may contract with a holder of a water service or
repayment contract for a Reclamation project to allow the
contractor, in accordance with applicable State laws and
policies--
(A) to directly use water available under the
contract for aquifer recharge on eligible land; or
(B) to enter into an agreement with an individual or
entity to transfer water available under the contract
for aquifer recharge on eligible land.
(2) Authorized project use.--The use of a Reclamation
facility for aquifer recharge under paragraph (1) shall be
considered an authorized use for the Reclamation project if
requested by a holder of a water service or repayment contract
for the Reclamation facility.
(3) Modifications to contracts.--The Secretary may contract
with a holder of a water service or repayment contract for a
Reclamation project under paragraph (1) if the Secretary
determines that a new contract or contract amendment described
in that paragraph is--
(A) necessary to allow for the use of water available
under the contract for aquifer recharge under this
subsection;
(B) in the best interest of the Reclamation project
and the United States; and
(C) approved by the contractor that is responsible
for repaying the cost of construction, operations, and
maintenance of the facility that delivers the water
under the contract.
(4) Requirements.--The use of Reclamation facilities for the
use or transfer of water for aquifer recharge under this
subsection shall be subject to the requirements that--
(A) the use or transfer shall not be implemented in a
manner that materially impacts any power service or
water contract for the Reclamation project; and
(B) before the use or transfer, the Secretary shall
determine that the use or transfer--
(i) results in a net water storage benefit
for the Reclamation project; or
(ii) contributes to the recharge of an
aquifer on eligible land; and
(C) the use or transfer complies with all
applicable--
(i) Federal laws and policies; and
(ii) interstate water compacts.
(c) Conveyance for Aquifer Recharge Purposes.--The holder of a
right-of-way, easement, permit, or other authorization to transport
water across public land administered by the Bureau of Land Management
may transport water for aquifer recharge purposes without requiring
additional authorization from the Secretary where the use does not
expand or modify the operation of the right-of-way, easement, permit,
or other authorization across public land.
(d) Effect.--Nothing in this Act creates, impairs, alters, or
supersedes a Federal or State water right.
(e) Exemption.--This Act shall not apply to the State of
California.
PURPOSE
The purpose of S. 1570, as ordered reported, is to provide
flexibility to allow greater aquifer recharge.
BACKGROUND AND NEED
Groundwater, water contained in aquifers and accessed by
wells, makes up about 38 percent of public water supplies and
48 percent of irrigation supplies nationally. The storage
capacity of aquifers is a critical component of many western
water management regimes and is often managed in conjunction
with surface storage (known as conjunctive use) to provide
water security and drought protection. Managed or artificial
groundwater recharge is an important storage and management
tool for many water managers. Groundwater recharge is done in
several ways, including through injection wells, constructed
recharge ponds, or simply spreading water in a basin favorable
to percolation into the aquifer. The ability and effectiveness
of aquifer recharge and storage is dependent on a variety of
natural characteristics, including soil type and underlying
geology, which influences water retention and the ability to
recover stored water.
If groundwater pumping exceeds the recharge (referred to as
overdraft) for an extended period of time, it will cause the
water table to drop and can lead to permanent land subsidence
or other impacts. The need to prevent overdraft and to preserve
and better utilize the storage capacity of aquifers has led to
increased management of groundwater. While state law is
responsible for the management and regulation of groundwater
supply, including pumping and recharge, Federal water
infrastructure, including dams and canals, are often designed
or operated to assist in the management and recharge of
groundwater resources.
In some cases, use of existing Federal water facilities for
aquifer recharge can be increased, to the extent it is allowed
under state law, by addressing specific aspects of Federal law
and policy. Specifically, the location of use of ``project
water''--state water rights held for use by a Bureau of
Reclamation (BOR or Reclamation) project and delivered through
the project facilities--is restricted by the project's
authorized boundary. However, aquifers frequently underlie both
project and non-project lands, and in certain cases adjacent
non-project lands may be more amenable, because of better
soils, existing land use patterns, or other factors, for
recharging the shared aquifer. S. 1570 would allow use of non-
project lands that share an aquifer with project lands for
groundwater recharge if those lands are eligible to receive the
water under state law and meet specific other requirements to
ensure the benefits accrue to the Reclamation project and its
contractors.
In addition, section 1 of the Warren Act (43 U.S.C. 523)
authorized the use of excess capacity above what is required to
meet contractual demands of the Reclamation project to be used
to impound, store or convey ``non-project water'' (state water
rights held by a non-Federal entity) through BOR facilities for
irrigation purposes. The ability to enter into a Warren Act
contract under this authority for water intended for
groundwater recharge has been unevenly applied. S. 1570 would
expressly authorize the use of excess capacity at BOR
facilities to be used for non-project water intended for
aquifer recharge. Similar issues related to different treatment
of water intended for irrigation and water intended for aquifer
recharge have also emerged for some non-Federal water
facilities on easements or rights-of-way across Federal land
and are addressed in S. 1570.
LEGISLATIVE HISTORY
S. 1570 was introduced by Senator Risch on May 21, 2019.
Representative Fulcher introduced identical legislation,
H.R. 2871, on May 21, 2019, in the House of Representatives.
The Natural Resources Committee's Subcommittee on Water and
Power held a hearing on the measure on July 18, 2019.
In the 115th Congress, similar language was included in S.
2563, which was introduced by Senator Flake on March 15, 2018.
The Committee held a hearing on S. 2563 on March 22, 2018.
The Senate Committee on Energy and Natural Resources met in
open business session on September 25, 2019, and ordered S.
1570 favorably reported, with an amendment in the nature of a
substitute.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on September 25, 2019, by a majority
voice vote of a quorum present, recommends that the Senate pass
S. 1570, if amended as described herein.6602
COMMITTEE AMENDMENT
During its consideration of S. 1570, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment strikes the definition and specific allowance in
section 3(c) related to in lieu recharge (the use of surface
water instead of groundwater), and it strikes the sense of
Congress in subsection (d). The substitute amendment also
clarifies that the request of a water service or repayment
contract holder is required to make aquifer recharge an
authorized use of a Reclamation project in section 3(b)(2);
adds a requirement that the use or transfer complies with
interstate water compacts in subsection (b)(4); and adds an
effects provision to clarify that nothing in the Act creates,
impairs, alters, or supersedes a Federal or State water right
in the new subsection (d). The substitute amendment also
contains a number of technical, conforming, and clarifying
changes.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
Section 1 sets forth the short title.
Sec. 2. Definitions
Section 2 defines key terms.
Sec. 3. Flexibility to allow greater aquifer recharge in western states
Section 3(a) authorizes the Commissioner of Reclamation
(Commissioner) to use excess capacity in Reclamation facilities
for aquifer recharge of non-Reclamation project water. The
subsection specifies several restrictions for such use,
including that the authorization shall not be implemented in a
detrimental manner to any power service or water contracts or
any existing obligations for fish, wildlife, or water quality
protection; is consistent with applicable water quality
guidelines; complies with State and Federal laws and policies;
and is consent to by the non-Federal party to an existing
contract. The subsection also states that contracts for use of
excess capacity of Reclamation conveyance facilities for
aquifer recharge in effect on the date of enactment are not
affected.
Subsection (b)(1) authorizes the Secretary of the Interior
(Secretary) to contract with a holder of a water service or
repayment contract to use available project water, either
directly or via transfer, for aquifer recharge on lands that
are outside a Reclamation project boundary if those lands are
eligible to receive water under state law and share a
groundwater sources with land located in the service area of
the Reclamation Project.
Subsection (b)(2) states that aquifer recharge use shall be
considered an authorized use of the Reclamation project if
requested by water service or repayment contract holder.
Subsection (b)(3) authorizes the Secretary to enter into a
new contract or contract amendment if the Secretary determines:
(A) it is needed to allow for the use of water for aquifer
recharge; (B) it is in the best interest of the Reclamation
project; and (C) it is approved by the contractor.
Subsection (b)(4) specifies that the use of Reclamation
facilities for the use or transfer water for aquifer recharge
is subject to the following requirements: (A) the
implementation does not materially impact any power service or
water contract; (B) the Secretary pre-determines that the use
or transfer will result in a net water storage benefit, or
contribute to the recharge of an aquifer on eligible land; and
(C) the use or transfer complies with applicable Federal laws
and policies, and interstate water contracts.
Subsection (c) allows the holder of a right-of-way,
easement, permit, or other authorization to transport water
across public land administered by the Bureau of Land
Management to also transport water for aquifer recharge
purposes without requiring additional authorization from the
Secretary, if that use does not expand or interfere with the
operation of the right-of-way, easement, permit, or other
authorization across public land.
Subsection (d) states that nothing in the Act creates,
impairs, alters, or supersedes a Federal or a State water
right.
Subsection (e) excludes the State of California from this
Act.6602
COST AND BUDGETARY CONSIDERATIONS
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the internet
at www.cbo.gov.
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. 1570. 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. 1570, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 1570, 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.6602
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the July 18, 2019, hearing on S. 1570 follows:
Statement of Brenda Burman, Commissioner, Bureau of Reclamation, U.S.
Department of the Interior
Chairman McSally, Ranking Member Cortez Masto, and members
of the Subcommittee, I am Brenda Burman, Commissioner for the
Bureau of Reclamation within the Department of the Interior
(Interior). Thank you for the opportunity to provide Interior's
views on S. 1932, the Drought Resiliency and Water Supply
Infrastructure Act, S. 2044, the Water Supply Infrastructure
Rehabilitation and Utilization Act, and S. 1570, the Aquifer
Recharge Flexibility Act.
Reclamation's dams and reservoirs, water conveyance
systems, and power generating facilities are integral
components of the Nation's infrastructure. This infrastructure
is key to Reclamation's continued success. Approximately 50
percent of Reclamation's dams were built between 1900 and 1950,
and approximately 90 percent of the dams were built before
adoption of currently used, state-of-the-art design and
construction practices. Effectively managing the modernization
of this infrastructure and the benefits that these structures
provide is among the significant challenges facing Reclamation
in the next several years. The reliability, safety, efficiency,
and cost effectiveness of Reclamation's infrastructure to
ensure water deliveries and power generation is a high
priority. Our FY 2020 budget proposed increases in funding for
extraordinary maintenance, including dam safety, to modernize
infrastructure. We appreciate that the bill sponsors are
working to improve western water reliability.
S. 1570--The Aquifer Recharge Flexibility Act
S. 1570, the Aquifer Recharge Flexibility Act, seeks to
improve aquifer levels across western states by expanding the
ability for aquifer recharge through federal lands and
facilities.
In Idaho, Reclamation has been working with the state and
water users on efforts to stabilize the Eastern Snake Plains
Aquifer (ESPA) and reduce conflict over groundwater
withdrawals. This comes on top of the ESPA Comprehensive
Aquifer Management Plan, adopted by the Idaho legislature in
2009, which sets forth strategies to stabilize the aquifer,
including a managed recharge. Reclamation has been assisting
with these efforts while still meeting obligations to the
Minidoka Project contractors and listed fish species.
In Idaho, and many other locations, aquifer recharge could
require the use of Federal property, sometimes after a lengthy
wait for congressional authorization. Reclamation provided
technical assistance on this legislation, and we believe its
new authorities will help reduce delays in using appropriate
federal lands to recharge local aquifers. We would like to work
with the committee and bill sponsors to clear up ambiguities
and avoid unintended consequences.
conclusion
Thank you for the opportunity to provide the Department's
views on these pieces of legislation. We look forward to
continuing our work with the sponsors and the Committee on
these bills.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill as ordered
reported.