42 U.S.C. § 10364

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 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 applicant to assist the eligible applicant in planning, designing, or constructing any improvement 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, 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 assist States and water users in complying with interstate compacts or reducing basin water supply-demand imbalances;

(G) to achieve the prevention of 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);

(H) to achieve the acceleration of 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;

(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 activity to be planned, designed, constructed, or implemented by the eligible applicant; and

(ii) for a project that is intended to have a quantifiable water savings and would receive 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 anticipate 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 objectives 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 subparagraphs (B) through (F).

(B) Agricultural operations

(i) In general

Except as provided in clause (ii), 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.

(ii) Indian tribes

In the case of an eligible applicant that is an Indian tribe, 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 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 authorities described in items (aa) through (cc); or

(II) to otherwise increase the consumptive 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 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

(I) In general

Except as provided in subclause (II), 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) Increased Federal share for certain infrastructure improvements and activities

The Federal share of the cost of an infrastructure improvement or activity shall not exceed 75 percent of the cost of the infrastructure improvement or activity, 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 activity, as determined by the Secretary, are for the purpose of advancing 1 or more components of an established strategy or plan to increase the reliability of water supply for consumptive 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 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 (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 (commonly 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 subsection, 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 research 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 nature-based feature to reduce water supply and demand imbalances or the risk of drought or flood; or

(D) to enhance the management of water resources, including increasing the use of renewable energy in the management and delivery 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 cooperative 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 agreement.

(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.

42 U.S.C. § 10364

Pub. L. 111-11, title IX, §95049504,, 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, §85018501,, 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 TEXTThe 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 subsec. (e) of this section by striking "$530,000,000" and inserting different new dollar amounts. In addition, section 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.

AMENDMENTS2024-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), inserted "or carrying out any activity" after "any improvement" 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), substituted "to achieve the prevention of" for "to prevent". 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), substituted "to achieve the acceleration of" for "to accelerate" 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), redesignated 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 application that includes a proposal of the improvement or activity to be planned, designed, constructed, or implemented 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 amendment, 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 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." 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 provisions.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 appear 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), substituted "within-" for "within", inserted cl. (i) designation 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, substituted "Except as provided in clause (ii), in carrying" for "In carrying" in introductory provisions, redesignated former cls. (i) and (ii) as subcls. (I) and (II), respectively, 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 condition that of that amount, $50,000,000 of it is 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)".]

Commissioner: The term "Commissioner" means the Commissioner of Reclamation.
eligible applicant: The term "eligible applicant" means-(A) any State, Indian tribe, irrigation district, or water district;(B) any State, regional, or local authority, the members of which include 1 or more organizations with water or power delivery authority;(C) any other organization with water or power delivery authority; and(D) any nonprofit conservation organization, if- (i) the nonprofit conservation organization is acting in partnership with and with the agreement of an entity described in subparagraph (A), (B), or (C); or(ii) in the case of an application for a project to improve the condition of a natural feature or nature-based feature on Federal land, the entities described in subparagraph (A), (B), or (C) from the applicable service area have been notified of the project application and there is no written objection to the project.
natural feature: The term "natural feature" means a feature that is created through the action of physical, geological, biological, and chemical processes over time.
nature-based feature: The term "nature-based feature" means a feature that is created by human design, engineering, and construction to provide a means to reduce water supply and demand imbalances or drought or flood risk by acting in concert with natural processes.
service area: The term "service area" means any area that encompasses a watershed that contains a federally authorized reclamation project that is located in any State or area described in section 391 of title 43.
project: The terms "federally assisted housing" and "project" mean-(A) a public housing project (as such term is defined in section 3(b) of the United States Housing Act of 1937 [42 U.S.C. 1437a(b)] );(B) housing for which project-based assistance is provided under section 8 of the United States Housing Act of 1937 [42 U.S.C. 1437f] ;(C) housing that is assisted under section 1701q of title 12;(D) housing that is assisted under section 1701q of title 12, as such section existed before November 28, 1990;(E) housing financed by a loan or mortgage insured under section 1715l(d)(3) of title 12 that bears interest at a rate determined under the proviso of section 1715l(d)(5) of title 12;(F) housing insured, assisted, or held by the Secretary or a State or State agency under section 1715z-1 of title 12;(G) housing constructed or substantially rehabilitated pursuant to assistance provided under section 8(b)(2) of the United States Housing Act of 1937 [42 U.S.C. 1437f(b)(2)], as in effect before October 1, 1983, that is assisted under a contract for assistance under such section; and(H) housing that is assisted under section 8013 1 of this title.
Secretary: the term "Secretary" means- (A) the Secretary of Education for purposes of subtitle A (other than section 3201),(B) the Secretary of Agriculture for purposes of the amendments made by section 3201, and(C) the Secretary of Health and Human Services for purposes of subtitle B,