Text: S.2842 — 110th Congress (2007-2008)All Information (Except Text)

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Reported to Senate (09/16/2008)

Calendar No. 988

110th CONGRESS
2d Session
S. 2842


To require the Secretary of the Interior to carry out annual inspections of canals, levees, tunnels, dikes, pumping plants, dams, and reservoirs under the jurisdiction of the Secretary, and for other purposes.


IN THE SENATE OF THE UNITED STATES

April 10, 2008

Mr. Reid (for himself, Mr. Bingaman, Mr. Salazar, and Mr. Tester) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources

September 16, 2008

Reported by Mr. Bingaman, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]


A BILL

To require the Secretary of the Interior to carry out annual inspections of canals, levees, tunnels, dikes, pumping plants, dams, and reservoirs under the jurisdiction of the Secretary, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Aging Water Infrastructure and Maintenance Act”.

SEC. 2. Definitions.

In this Act:

(1) INSPECTION.—The term “inspection” means an inspection of a project facility carried out by the Secretary—

(A) to assess and determine the general condition of the project facility; and

(B) to estimate the value of property, and the size of the population, that would be at risk if the project facility fails, is breached, or otherwise allows flooding to occur.

(2) PROJECT FACILITY.—The term “project facility” means any part or incidental feature of a reclamation or irrigation project (including any canal, levee, tunnel, dike, pumping plant, dam, or reservoir) that is—

(A) under the jurisdiction of the Secretary (including any facility owned by the Department of the Interior); and

(B) not covered by the Reclamation Safety of Dams Act of 1978 (43 U.S.C. 506 et seq.).

(3) RESERVED PROJECT FACILITY.—The term “reserved project facility” means any project facility at which the Secretary carries out the operation and maintenance of the project facility.

(4) SECRETARY.—The term “Secretary” means the Secretary of the Interior, acting through the Commissioner of Reclamation.

(5) TRANSFERRED PROJECT FACILITY.—The term “transferred project facility” means a project facility the operation and maintenance of which is carried out by a non-Federal entity.

SEC. 3. Inspection of project facilities.

(a) Inspections.—

(1) INITIAL INSPECTION PERIOD.—

(A) IN GENERAL.—In accordance with subparagraph (B), not later than 1 year after the date of enactment of this Act, the Secretary shall conduct an inspection of not less than 75 percent of all project facilities.

(B) SELECTION OF PROJECT FACILITIES.—In selecting project facilities to inspect during the initial inspection period under subparagraph (A), the Secretary shall take into account the risk posed by each project facility to public health or safety, or property.

(2) FINAL INSPECTION PERIOD.—Not later than 2 years after the date of enactment of this Act, the Secretary shall conduct an inspection of each project facility not inspected by the Secretary during the initial inspection period under paragraph (1)(A).

(3) REIMBURSEMENT RELATING TO INSPECTIONS OF TRANSFERRED PROJECT FACILITIES.—Notwithstanding any applicable law (including regulations), with respect to an inspection of a transferred project facility carried out under this subsection, the Secretary may not request from the non-Federal entity that carries out the operation and maintenance of the transferred project facility reimbursement for costs arising from the inspection.

(4) PERIODIC REVIEW OF INSPECTIONS.—Not later than 3 years after the date described in paragraph (2) and every 3 years thereafter, the Secretary shall carry out a review of each inspection carried out under paragraphs (1) and (2).

(b) Use of inspection data.—The Secretary shall use the data collected by the Secretary through the conduct of the inspections under paragraphs (1) and (2) of subsection (a)—

(1) to develop for each reserved project facility a detailed schedule for the conduct of regular maintenance;

(2) to develop for, and provide to, each non-Federal entity that carries out the operation and maintenance of a transferred project facility—

(A) a detailed schedule for the conduct of regular maintenance; and

(B) a document that contains guidance describing the manner by which to comply with the schedule described in subparagraph (A); and

(3) to create a national priorities list that contains a description of each project facility that requires the most urgent maintenance with respect to the infrastructure of the project facility.

(c) National priorities list.—

(1) ANNUAL REVIEW.—Not later than 1 year after the date on which the Secretary develops the national priorities list under subsection (b)(3) and annually thereafter, the Secretary shall carry out a review of each project facility to update the list for the year covered by the review.

(2) PUBLICATION.—The national priorities list shall be published by the Secretary in the budget justification of the Department of the Interior for the year covered by the national priorities list.

(d) State participation.—In conducting an inspection of a project facility under subsection (a), the Secretary shall—

(1) notify the appropriate State agency of the State in which the project facility is located of the inspection;

(2) allow the State agency described in paragraph (1) to participate in the inspection of the project facility; and

(3) provide to the State agency described in paragraph (1) a report that describes the results of the inspection of the project facility.

SEC. 4. Federal standards and guidelines for project facilities.

(a) Promulgation of standards.—

(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, in accordance with paragraph (2), the Secretary shall promulgate final regulations to establish standards for the condition and maintenance of project facilities.

(2) CONTENTS.—The regulations promulgated by the Secretary under paragraph (1) shall contain a detailed description of each condition with which a project facility shall comply to be eligible to be considered by the Secretary—

(A) to function properly and in accordance with the objectives of the project facility; and

(B) to operate in a manner to ensure, to the maximum extent practicable—

(i) the safety of populations located in close proximity to the project facility; and

(ii) the preservation of property located in close proximity to the project facility.

(b) Promulgation of guidelines.—

(1) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, in accordance with paragraph (2), the Secretary shall promulgate final regulations to establish guidelines—

(A) to implement this Act; and

(B) to ensure compliance with the regulations promulgated by the Secretary under subsection (a).

(2) CONTENTS.—The regulations promulgated by the Secretary under paragraph (1) shall reflect an agency-wide policy with respect to the type, and proportion of, activities relating to the operation and maintenance of a project facility that may be appropriately carried out by a non-Federal entity, taking into account—

(A) any economic benefit that may result from the carrying out of the activities by a non-Federal entity; and

(B) the capabilities of the non-Federal entity to carry out the activities.

SEC. 5. Modification of project facilities.

(a) In general.—The Secretary shall carry out or, in accordance with subsection (b), provide to a non-Federal entity financial support to carry out, any modification to a project facility that the Secretary determines to be reasonably required to preserve the structural safety of the project facility.

(b) Reimbursement of costs arising from the repair of structurally deficient transferred project facilities.—

(1) COMPLIANT TRANSFERRED PROJECT FACILITIES.—

(A) IN GENERAL.—Subject to subparagraph (B), to reimburse a non-Federal entity for costs arising from the carrying out of repair activities to improve the safety of a transferred project facility, the Secretary may provide to the non-Federal entity an amount equal to 65 percent of the costs incurred by the non-Federal entity to carry out the repair activities.

(B) DETERMINATION OF SECRETARY.—The Secretary shall reimburse the non-Federal entity described in subparagraph (A) if the Secretary determines that—

(i) the transferred project facility of the non-Federal entity is structurally deficient; and

(ii) the structural deficiency is not a result of noncompliance with any regulation promulgated by the Secretary under section 4.

(2) NONCOMPLIANT TRANSFERRED PROJECT FACILITIES.—

(A) IN GENERAL.—The Secretary may carry out any repair activity that the Secretary determines to be necessary to minimize the risk of imminent harm to public health or safety, or property—

(i) if the Secretary determines that—

(I) the transferred project facility is structurally deficient; and

(II) the structural deficiency is a result of noncompliance with any regulation promulgated by the Secretary under section 4; and

(ii) after the date on which the Secretary consults with the non-Federal entity that carries out the operation and maintenance of the transferred project facility.

(B) REIMBURSEMENT.—In accordance with any applicable law (including regulations) or agreement, the Secretary may seek reimbursement from the non-Federal entity that carries out the operation and maintenance of the transferred project facility described in subparagraph (A) for costs arising from each repair activity carried out by the Secretary under that subparagraph.

SEC. 6. Authorization of appropriations.

(a) Inspection of project facilities.—There are authorized to be appropriated to the Secretary to carry out section 3—

(1) $5,000,000 for fiscal year 2009; and

(2) $1,500,000 for each of fiscal years 2010 through 2013.

(b) Modification of project facilities.—There are authorized to be appropriated such sums as are necessary to carry out section 5.

SECTION 1. Short title.

This Act may be cited as the “Aging Water Infrastructure and Maintenance Act”.

SEC. 2. Definitions.

In this Act:

(1) INSPECTION.—The term “inspection” means an inspection of a project facility carried out by the Secretary—

(A) to assess and determine the general condition of the project facility; and

(B) to estimate the value of property, and the size of the population, that would be at risk if the project facility fails, is breached, or otherwise allows flooding to occur.

(2) PROJECT FACILITY.—The term “project facility” means any part or incidental feature of a project, excluding high- and significant-hazard dams, constructed under the Federal reclamation law (the Act of June 17, 1902 (32 Stat. 388, chapter 1093), and Acts supplemental to and amendatory of that Act (43 U.S.C. 371 et seq.).

(3) RESERVED WORKS.—The term “reserved works” mean any project facility at which the Secretary carries out the operation and maintenance of the project facility.

(4) SECRETARY.—The term “Secretary” means the Secretary of the Interior, acting through the Commissioner of Reclamation.

(5) TRANSFERRED WORKS.—The term “transferred works” means a project facility, the operation and maintenance of which is carried out by a non-Federal entity, under the provisions of a formal operation and maintenance transfer contract.

(6) TRANSFERRED WORKS OPERATING ENTITY.—The term “transferred works operating entity” means the organization which is contractually responsible for operation and maintenance of transferred works.

(7) EXTRAORDINARY OPERATION AND MAINTENANCE WORK.—The term “extraordinary operation and maintenance work” means major, nonrecurring maintenance to Reclamation-owned or operated facilities, or facility components, that is—

(A) intended to ensure the continued safe, dependable, and reliable delivery of authorized project benefits; and

(B) greater than 10 percent of the contractor’s or the transferred works operating entity’s annual operation and maintenance budget for the facility, or greater than $100,000.

SEC. 3. Guidelines and inspection of project facilities and technical assistance to transferred works operating entities.

(a) Guidelines and inspections.—

(1) DEVELOPMENT OF GUIDELINES.—Not later than 1 year after the date of enactment of this Act, the Secretary in consultation with transferred works operating entities shall develop, consistent with existing transfer contracts, specific inspection guidelines for project facilities which are in proximity to urbanized areas and which could pose a risk to public safety or property damage if such project facilities were to fail.

(2) CONDUCT OF INSPECTIONS.—Not later than 3 years after the date of enactment of this Act, the Secretary shall conduct inspections of those project facilities, which are in proximity to urbanized areas and which could pose a risk to public safety or property damage if such facilities were to fail, using such specific inspection guidelines and criteria developed pursuant to paragraph (1). In selecting project facilities to inspect, the Secretary shall take into account the potential magnitude of public safety and economic damage posed by each project facility.

(3) TREATMENT OF COSTS.—The costs incurred by the Secretary in conducting these inspections shall be nonreimbursable.

(b) Use of inspection data.—The Secretary shall use the data collected through the conduct of the inspections under subsection (a)(2) to—

(1) provide recommendations to the transferred works operating entities for improvement of operation and maintenance processes, operating procedures including operation guidelines consistent with existing transfer contracts, and structural modifications to those transferred works;

(2) determine an appropriate inspection frequency for such nondam project facilities which shall not exceed 6 years; and

(3) provide, upon request of transferred work operating entities, local governments, or State agencies, information regarding potential hazards posed by existing or proposed residential, commercial, industrial or public-use development adjacent to project facilities.

(c) Technical assistance to transferred works operating entities.—

(1) AUTHORITY OF SECRETARY TO PROVIDE TECHNICAL ASSISTANCE.—The Secretary is authorized, at the request of a transferred works operating entity in proximity to an urbanized area, to provide technical assistance to accomplish the following, if consistent with existing transfer contracts:

(A) Development of documented operating procedures for a project facility.

(B) Development of documented emergency notification and response procedures for a project facility.

(C) Development of facility inspection criteria for a project facility.

(D) Development of a training program on operation and maintenance requirements and practices for a project facility for a transferred works operating entity’s workforce.

(E) Development of a public outreach plan on the operation and risks associated with a project facility.

(F) Development of any other plans or documentation which, in the judgment of the Secretary, will contribute to public safety and the sage operation of a project facility.

(2) COSTS.—The Secretary is authorized to provide, on a non-reimbursable basis, up to 50 percent of the cost of such technical assistance, with the balance of such costs being advanced by the transferred works operating entity or other non-Federal source. The non-Federal 50 percent minimum cost share for such technical assistance may be in the form of in-lieu contributions of resources by the transferred works operating entity or other non-Federal source.

SEC. 4. Extraordinary operation and maintenance work performed by the Secretary.

(a) In general.—The Secretary or the transferred works operating entity may carry out, in accordance with subsection (b) and consistent with existing transfer contracts, any extraordinary operation and maintenance work on a project facility that the Secretary determines to be reasonably required to preserve the structural safety of the project facility.

(b) Reimbursement of costs arising from extraordinary operation and maintenance work.—

(1) TREATMENT OF COSTS.—For reserved works, costs incurred by the Secretary in conducting extraordinary operation and maintenance work will be allocated to the authorized reimbursable purposes of the project and shall be repaid within 50 years, with interest, from the year in which work undertaken pursuant to this Act is substantially complete.

(2) AUTHORITY OF SECRETARY.—For transferred works, the Secretary is authorized to advance the costs incurred by the transferred works operating entity in conducting extraordinary operation and maintenance work and negotiate appropriate 50-year repayment contracts with project beneficiaries providing for the return of reimbursable costs, with interest, under this subsection: Provided, however, That no contract entered into pursuant to this Act shall be deemed to be a new or amended contract for the purposes of section 203(a) of the Reclamation Reform Act of 1982 (43 U.S.C. 390cc(a)).

(3) DETERMINATION OF INTEREST RATE.—The interest rate used for computing interest on work in progress and interest on the unpaid balance of the reimbursable costs of extraordinary operation and maintenance work authorized by this Act shall be determined by the Secretary of the Treasury, as of the beginning of the fiscal year in which extraordinary operation and maintenance work is commenced, on the basis of average market yields on outstanding marketable obligations of the United States with the remaining periods of maturity comparable to the applicable reimbursement period of the project, adjusted to the nearest 18 of 1 percent on the unamortized balance of any portion of the loan.

(c) Emergency extraordinary operation and maintenance work.—

(1) IN GENERAL.—The Secretary or the transferred works operating entity shall carry out any emergency extraordinary operation and maintenance work on a project facility that the Secretary determines to be necessary to minimize the risk of imminent harm to public health or safety, or property.

(2) REIMBURSEMENT.—The Secretary may advance funds for emergency extraordinary operation and maintenance work and shall seek reimbursement from the transferred works operating entity or benefitting entity upon receiving a written assurance from the governing body of such entity that it will negotiate a contract pursuant to section 4 for repayment of costs incurred by the Secretary in undertaking such work.

(3) FUNDING.—If the Secretary determines that a project facility inspected and maintained pursuant to the guidelines and criteria set forth in section 3(a) requires extraordinary operation and maintenance pursuant to paragraph (1), the Secretary may provide Federal funds on a nonreimbursable basis sufficient to cover 35 percent of the cost of the extraordinary operation and maintenance allocable to the transferred works operating entity, which is needed to minimize the risk of imminent harm. The remaining share of the Federal funds advanced by the Secretary for such work shall be repaid under subsection (b).

SEC. 5. Relationship to Twenty-First Century Water Works Act.

Nothing in this Act shall preclude a transferred works operating entity from applying and receiving a loan-guarantee pursuant to the Twenty-First Century Water Works Act (43 U.S.C. 2401 et seq.).

SEC. 6. Authorization of appropriations.

There are authorized to be appropriated such sums as are necessary to carry out this Act.

SEC. 7. Loan guarantee finance demonstration program.

(a) Definitions.—In this section:

(1) SECRETARY.—The term “Secretary” means the Secretary of the Interior.

(2) FEDERAL LOAN GUARANTEE AND LOAN GUARANTEE.—The terms “Federal loan guarantee” and “loan guarantee” have the meaning given the terms in the Twenty-First Century Water Works Act (43 U.S.C. 2401 et seq.).

(3) DEMONSTRATION PROJECT AND PROJECT.—The terms “demonstration project” and “project” have the meaning given the term “project” in section 202 of the Twenty-First Century Water Works Act (43 U.S.C. 2421).

(4) LENDER.—The term “lender” has the meaning given the term in section 202 of the Twenty-First Century Water Works Act (43 U.S.C. 2421).

(5) LOAN GUARANTEE SUBSIDY COST.—The term “loan guarantee subsidy cost” has the meaning given under the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.) as the annual budget authority needed to cover the portion of credit assistance estimated to be un-recovered because of defaults, expressed as a percentage of the amount of each loan approved for guarantee. This definition shall apply to loan guarantees given to improve facilities to which the Federal Government holds title, as well as to non-Federal facilities.

(b) Demonstration program.—

(1) IDENTIFICATION OF DEMONSTRATION PROJECTS.—Within 180 days of enactment of this Act, the Secretary shall identify no more than 3 projects as eligible for Federal loan guarantees. The identified projects shall include at least 1 project involving extraordinary operation and maintenance work.

(2) MEMORANDUM OF AGREEMENT.—Within 90 days of enactment of this Act, the Secretary shall complete the Interagency Coordination and Cooperation actions in section 209 of the Twenty-First Century Water Works Act (43 U.S.C. 2428).

(3) ELIGIBILITY OF PROJECTS.—Within 270 days of enactment of this Act, and in accordance with an agreement with the entities seeking to carry-out the projects identified under paragraph (1), the Secretary shall make available to lenders Federal loan guarantees equal to the full cost of projects identified in this section.

(4) SUBSIDY.—The loan guarantee subsidy cost shall be the greater of 2 percent or the subsidy determined by the Secretary of Agriculture for covering the Federal cost of guaranteeing loans to lenders financing water projects under the United States Department of Agricultural Rural Development authorities.

(c) Authorization of appropriations.—There are authorized to be appropriated such sums as are necessary to carry out this title, to remain available until expended.


Calendar No. 988

110th CONGRESS
     2d Session
S. 2842

A BILL
To require the Secretary of the Interior to carry out annual inspections of canals, levees, tunnels, dikes, pumping plants, dams, and reservoirs under the jurisdiction of the Secretary, and for other purposes.

September 16, 2008
Reported with an amendment
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