H. Rept. 115-166 - WATER SUPPLY PERMITTING COORDINATION ACT115th Congress (2017-2018)
Committee Report
Show OverviewReport text available as:
- TXT
- PDF (PDF provides a complete and accurate display of this text.) Tip ?
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-166
======================================================================
WATER SUPPLY PERMITTING COORDINATION ACT
_______
June 12, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1654]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1654) to authorize the Secretary of the Interior
to coordinate Federal and State permitting processes related to
the construction of new surface water storage projects on lands
under the jurisdiction of the Secretary of the Interior and the
Secretary of Agriculture and to designate the Bureau of
Reclamation as the lead agency for permit processing, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
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 ``Water Supply Permitting Coordination
Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Bureau.--The term ``Bureau'' means the Bureau of
Reclamation.
(2) Cooperating agencies.--The term ``cooperating agency''
means a Federal agency with jurisdiction over a review,
analysis, opinion, statement, permit, license, or other
approval or decision required for a qualifying project under
applicable Federal laws and regulations, or a State agency
subject to section 3(c).
(3) Qualifying projects.--The term ``qualifying projects''
means new surface water storage projects in the States covered
under 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.) constructed on lands administered by the
Department of the Interior or the Department of Agriculture,
exclusive of any easement, right-of-way, lease, or any private
holding, unless the project applicant elects not to participate
in the process authorized by this Act.
(4) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 3. ESTABLISHMENT OF LEAD AGENCY AND COOPERATING AGENCIES.
(a) Establishment of Lead Agency.--The Bureau is established as the
lead agency for purposes of coordinating all reviews, analyses,
opinions, statements, permits, licenses, or other approvals or
decisions required under Federal law to construct qualifying projects.
(b) Identification and Establishment of Cooperating Agencies.--The
Commissioner of the Bureau shall--
(1) identify, as early as practicable upon receipt of an
application for a qualifying project, any Federal agency that
may have jurisdiction over a review, analysis, opinion,
statement, permit, license, approval, or decision required for
a qualifying project under applicable Federal laws and
regulations; and
(2) notify any such agency, within a reasonable timeframe,
that the agency has been designated as a cooperating agency in
regards to the qualifying project unless that agency responds
to the Bureau in writing, within a timeframe set forth by the
Bureau, notifying the Bureau that the agency--
(A) has no jurisdiction or authority with respect to
the qualifying project;
(B) has no expertise or information relevant to the
qualifying project or any review, analysis, opinion,
statement, permit, license, or other approval or
decision associated therewith; or
(C) does not intend to submit comments on the
qualifying project or conduct any review of such a
project or make any decision with respect to such
project in a manner other than in cooperation with the
Bureau.
(c) State Authority.--A State in which a qualifying project is being
considered may choose, consistent with State law--
(1) to participate as a cooperating agency; and
(2) to make subject to the processes of this Act all State
agencies that--
(A) have jurisdiction over the qualifying project;
(B) are required to conduct or issue a review,
analysis, or opinion for the qualifying project; or
(C) are required to make a determination on issuing a
permit, license, or approval for the qualifying
project.
SEC. 4. BUREAU RESPONSIBILITIES.
(a) In General.--The principal responsibilities of the Bureau under
this Act are--
(1) to serve as the point of contact for applicants, State
agencies, Indian tribes, and others regarding proposed
qualifying projects;
(2) to coordinate preparation of unified environmental
documentation that will serve as the basis for all Federal
decisions necessary to authorize the use of Federal lands for
qualifying projects; and
(3) to coordinate all Federal agency reviews necessary for
project development and construction of qualifying projects.
(b) Coordination Process.--The Bureau shall have the following
coordination responsibilities:
(1) Preapplication coordination.--Notify cooperating agencies
of proposed qualifying projects not later than 30 days after
receipt of a proposal and facilitate a preapplication meeting
for prospective applicants, relevant Federal and State
agencies, and Indian tribes--
(A) to explain applicable processes, data
requirements, and applicant submissions necessary to
complete the required Federal agency reviews within the
timeframe established; and
(B) to establish the schedule for the qualifying
project.
(2) Consultation with cooperating agencies.--Consult with the
cooperating agencies throughout the Federal agency review
process, identify and obtain relevant data in a timely manner,
and set necessary deadlines for cooperating agencies.
(3) Schedule.--Work with the qualifying project applicant and
cooperating agencies to establish a project schedule. In
establishing the schedule, the Bureau shall consider, among
other factors--
(A) the responsibilities of cooperating agencies
under applicable laws and regulations;
(B) the resources available to the cooperating
agencies and the non-Federal qualifying project
sponsor, as applicable;
(C) the overall size and complexity of the qualifying
project;
(D) the overall schedule for and cost of the
qualifying project; and
(E) the sensitivity of the natural and historic
resources that may be affected by the qualifying
project.
(4) Environmental compliance.--Prepare a unified
environmental review document for each qualifying project
application, incorporating a single environmental record on
which all cooperating agencies with authority to issue
approvals for a given qualifying project shall base project
approval decisions. Help ensure that cooperating agencies make
necessary decisions, within their respective authorities,
regarding Federal approvals in accordance with the following
timelines:
(A) Not later than 1 year after acceptance of a
completed project application when an environmental
assessment and finding of no significant impact is
determined to be the appropriate level of review under
the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(B) Not later than 1 year and 30 days after the close
of the public comment period for a draft environmental
impact statement under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), when an
environmental impact statement is required under the
same.
(5) Consolidated administrative record.--Maintain a
consolidated administrative record of the information assembled
and used by the cooperating agencies as the basis for agency
decisions.
(6) Project data records.--To the extent practicable and
consistent with Federal law, ensure that all project data is
submitted and maintained in generally accessible electronic
format, compile, and where authorized under existing law, make
available such project data to cooperating agencies, the
qualifying project applicant, and to the public.
(7) Project manager.--Appoint a project manager for each
qualifying project. The project manager shall have authority to
oversee the project and to facilitate the issuance of the
relevant final authorizing documents, and shall be responsible
for ensuring fulfillment of all Bureau responsibilities set
forth in this section and all cooperating agency
responsibilities under section 5.
SEC. 5. COOPERATING AGENCY RESPONSIBILITIES.
(a) Adherence to Bureau Schedule.--
(1) Timeframes.--On notification of an application for a
qualifying project, the head of each cooperating agency shall
submit to the Bureau a timeframe under which the cooperating
agency reasonably will be able to complete the authorizing
responsibilities of the cooperating agency.
(2) Schedule.--
(A) Use of timeframes.--The Bureau shall use the
timeframes submitted under this subsection to establish
the project schedule under section 4.
(B) Adherence.--Each cooperating agency shall adhere
to the project schedule established by the Bureau under
subparagraph (A).
(b) Environmental Record.--The head of each cooperating agency shall
submit to the Bureau all environmental review material produced or
compiled in the course of carrying out activities required under
Federal law, consistent with the project schedule established by the
Bureau under subsection (a)(2).
(c) Data Submission.--To the extent practicable and consistent with
Federal law, the head of each cooperating agency shall submit all
relevant project data to the Bureau in a generally accessible
electronic format, subject to the project schedule established by the
Bureau under subsection (a)(2).
SEC. 6. FUNDING TO PROCESS PERMITS.
(a) In General.--The Secretary, after public notice in accordance
with subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the ``Administrative Procedure Act''),
may accept and expend funds contributed by a non-Federal public entity
to expedite the evaluation of a permit of that entity related to a
qualifying project.
(b) Effect on Permitting.--
(1) Evaluation of permits.--In carrying out this section, the
Secretary shall ensure that the evaluation of permits carried
out using funds accepted under this section shall--
(A) be reviewed by the Regional Director of the
Bureau of the region in which the qualifying project or
activity is located (or a designee); and
(B) use the same procedures for decisions that would
otherwise be required for the evaluation of permits for
similar projects or activities not carried out using
funds authorized under this section.
(2) Impartial decisionmaking.--In carrying out this section,
the Secretary and the head of each cooperating agency receiving
funds under this section for a qualifying project shall ensure
that the use of the funds accepted under this section for the
qualifying project shall not--
(A) substantively or procedurally impact impartial
decisionmaking with respect to the issuance of permits;
or
(B) diminish, modify, or otherwise affect the
statutory or regulatory authorities of the cooperating
agency.
(c) Limitation on Use of Funds.--None of the funds accepted under
this section shall be used to carry out a review of the evaluation of
permits required under subsection (b)(1)(A).
(d) Public Availability.--The Secretary shall ensure that all final
permit decisions carried out using funds authorized under this section
are made available to the public, including on the Internet.
PURPOSE OF THE BILL
The purpose of H.R. 1654 is to authorize the Secretary of
the Interior to coordinate Federal and State permitting
processes relating to the construction of new surface water
storage projects on lands under the jurisdiction of the
Secretary of the Interior and the Secretary of Agriculture and
to designate the Bureau of Reclamation as the lead agency for
permit processing.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1654, as amended, creates a ``one-stop-shop''
permitting process through the Bureau of Reclamation to
streamline the current multi-agency permitting processes for
new or expanded non-federal surface storage facilities.
The regulatory process of constructing new surface water
storage--whether federally or non-federally owned--often
involves a host of federal, state, and local permits and
approvals from various agencies. Throughout this process
federal agencies are not required to coordinate their permits
and approvals with one another and have little incentive to do
so. As a result, conflicting agency permit requirements add
time to the project planning and implementation process and
increase the potential for last-minute surprises that could
endanger the success of a project or require significant
additional work. For example, it took 14 years to permit but
just two years to build the 22,400 acre-foot High Savery Dam
Project in Wyoming. At a 2012 Water and Power Subcommittee
oversight hearing, Mr. Pat O'Toole, a local rancher testified,
``the lead federal agency wasted a great deal of time making
decisions on the project and at times seemed unable to make
decisions. These delays not only postponed the project, they
resulted in wasted time and money.''
Previous Administrations have acknowledged the need for
coordinating permitting and review. In October 2009, nine
federal agencies entered into a Memorandum of Understanding
(MOU) ``to expedite the siting and construction of electric
transmission infrastructure in the United States . . . and to
improve coordination among project applicants, federal
agencies, and states and tribes involved in the siting and
permitting process.'' This MOU included provisions for the use
of a single unified environmental review document for each
project analysis. H.R. 1654 creates a similar ``one-stop-shop''
permitting process to expedite construction of new or expanded
non-federal surface storage facilities. Specifically, the bill
establishes Reclamation as the lead agency for purposes of
coordinating all reviews, analysis, opinions, statements,
permits, licenses, or other federal approvals required under
federal law. As the point of contact for the federal
government, Reclamation shall coordinate the preparation of the
unified environmental documentation that will serve as the
basis for all federal decisions necessary to authorize the use
of federal lands, as well as coordinate the project development
and construction of qualifying projects. The consolidated
permitting process authorized under this Title is modeled after
the Obama Administration's ``Interagency Rapid Response Team
for Transmission.''
Additionally, the bill allows the Secretary of the Interior
to accept and spend funds contributed by a non-federal public
entity to expedite the evaluation of a permit relating to the
qualifying project--similar to the one authorized under Section
140 of Public Law 108-137--to finance upgrades to the Hetch
Hetchy project in California. As amended, the bill allows
project sponsors to opt out and pursue other pathways to
development if they so choose. The bill is not intended to be a
``one-size-fits-all'' approach, but rather an approach to give
water project sponsors the flexibility to choose which agency
and process works best for them.
SECTION-BY-SECTION ANALYSIS
Section 1 provides short title for the bill: the ``Water
Supply Permitting Coordination Act''.
Section 2 defines key terms used throughout the Act. As
amended, qualifying projects include all new or expanded
surface water storage projects, unless the project applicant
elects not to participate in the process authorized under this
Act.
Section 3 establishes Reclamation as the lead agency and
sets forth the process by which cooperating agencies are
identified and established. This process requires Reclamation
to notify all agencies with permitting responsibilities related
to proposed projects that those projects have been received,
and gives agencies who are improperly identified an opportunity
to opt out of the process if they will not be performing any
review outside of the coordinated process. Section 3 also
provides states with discretion to participate as cooperating
agencies and to involve their state agencies in coordination
with the other cooperating agencies.
Section 4 sets forth the responsibilities of Reclamation as
the lead agency, including serving as the point of contact for
applicants, state agencies, Indian tribes, and others regarding
proposed qualifying projects. Reclamation must also coordinate
the preparation of the unified environmental review document
that serves as the basis for all federal decisions necessary to
authorize the use of federal lands for new surface water
storage construction. To begin the process, Section 4 requires
Reclamation to notify cooperating agencies of proposed projects
within 30 days and establishes a process by which Reclamation
explains the process and the proposed project, establishes a
schedule for the project and consults with cooperating
agencies. Section 4 also requires that Reclamation prepare a
unified environmental review document for each qualifying
project, incorporating a single environmental record on which
all cooperating agencies shall base project approval decisions,
and to maintain a consolidated administrative record of the
information assembled. Finally, Section 4 requires that all
project data, to the extent practicable and consistent with
existing law, be submitted to Reclamation as the lead agency
and made available online to the public.
Section 5 establishes the Cooperating Agency
responsibilities, including adhering to the coordinated
schedule set by Reclamation, cooperating with compilation of
the environmental record and adhering to it for all decisions,
and submitting all relevant data to Reclamation in a generally
accessible format.
Section 6 establishes the process for third party financial
contributions to the ``one-stop-shop'' review process and
requires that the Secretary of the Interior shall remain
impartial in all decision making with respect to permits both
substantively and procedurally.
COMMITTEE ACTION
H.R. 1654 was introduced on March 21, 2017, by Congressman
Tom McClintock (R-CA). The bill was referred to the Committee
on Natural Resources, and within the Committee to the
Subcommittee on Water, Power and Oceans. On April 26, 2017, the
Full Natural Resources Committee met to consider the bill. The
Subcommittee on Water, Power and Oceans was discharged by
unanimous consent. Congressman McClintock offered amendment
designated #1. It was adopted by voice vote. No further
amendments were offered and on April 27, 2017, the bill as
amended was ordered favorably reported by a bipartisan roll
call of 24 ayes to 16 noes, as follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 11, 2017.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1654, the Water
Supply Permitting Coordination Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1654--Water Supply Permitting Coordination Act
H.R. 1654 would direct the Bureau of Reclamation (BOR) to
act as the lead federal agency for coordinating with 17 western
states for issuing permits to construct new water storage
projects on land managed by the Department of the Interior or
the Department of Agriculture. The bill also would impose
deadlines for carrying out certain activities related to each
project. Based on information from BOR and other federal
agencies, CBO estimates that implementing those provisions
would cost about $1 million a year for staff to coordinate
agency reviews, to consolidate project data and documentation,
to review projects, and for regional directors to review
permits. Such spending would be subject to the availability of
appropriated funds.
The bill also would authorize BOR to receive and spend
funds contributed by nonfederal public entities to expedite the
evaluation of permit applications for new projects. (With the
aim of ensuring impartiality, amounts collected under the bill
would not be used to cover the cost of final reviews required
by regional directors; such spending would be subject to the
availability of appropriated funds.) The amount collected each
year would depend on the number of participants willing to
contribute funds to expedite their permits. Based on an
analysis of information from BOR, CBO estimates that in most
years BOR would collect and spend less than $500,000 for such
purposes and that the net effect on direct spending would be
negligible. Because implementing those provisions would affect
direct spending, pay-as-you-go procedures apply. Enacting H.R.
1654 would not affect revenues.
CBO estimates that enacting the bill would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1654 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act. The
bill would benefit public entities by expediting permits for
federal water supply projects that serve those entities. Any
costs incurred by state, local, or tribal governments that
participate as cooperating agencies, including cost-sharing
contributions, would result from voluntary commitments.
The CBO staff contacts for this estimate are Aurora Swanson
(for federal costs) and Jon Sperl (for intergovernmental
mandates). The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to authorize the Secretary of the
Interior to coordinate Federal and State permitting processes
relating to the construction of new surface water storage
projects on lands under the jurisdiction of the Secretary of
the Interior and the Secretary of Agriculture and to designate
the Bureau of Reclamation as the lead agency for permit
processing.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
H.R. 1654 would impose arbitrary deadlines for completing
key environmental reviews for new water storage projects and
create an ill-conceived new review process at odds with the
existing review process established under key laws such as the
National Environmental Policy Act (NEPA).
Section 3 of the bill establishes the Bureau of Reclamation
as the lead agency for all reviews, permits, approvals, and
other requirements necessary for project construction. As lead
agency, the Bureau of Reclamation could dictate deadlines and
scope for environmental reviews, thereby undermining the
management authority of expert federal agencies charged with
implementing our nation's most important environmental laws
such as the Endangered Species Act and Clean Water Act. Other
bill sections mandate various deadlines and timelines for
completing environmental reviews, determining project
schedules, and consulting with cooperating agencies. The bill
arises out of the Majority's notion that environmental
regulations are a significant impediment to the construction of
new dams.
Not a single water storage project has been denied
construction because of a lack of coordination between the
Bureau of Reclamation and other agencies or because of delays
associated with review or permitting. According to the Bureau
of Reclamation, project economics, pricing, and repayment
challenges are the primary reasons for some projects being
authorized but not constructed--not environmental compliance or
a lack of coordination.
It is far from clear if the review process established in
H.R. 1654 would dovetail or overlap with processes for review
that already exists under the Fish and Wildlife Coordination
Act, NEPA, and other major laws. For example, the bill's
definition of ``cooperating agency'' conflicts with the
definition of ``cooperating agency'' established under NEPA,
which establishes tribal, local, state, and federal entities as
potential cooperating agencies. In addition, the legislation
uses undefined terms such as ``unified environmental review
document'' with no further explanation. The confusion this bill
would cause, coupled with the compressed timeframe it mandates
to establish the merits of projects, will likely make favorable
recommendations for construction projects less probable. For
these reasons, we oppose H.R. 1654.
Raul M. Grijalva,
Ranking Member, House
Committee on Natural
Resources.
Grace F. Napolitano,
Ranking Member.
Jared Huffman,
Ranking Member, Subcommittee
on Water, Power and
Oceans.
Colleen Hanabusa,
Member of Congress.
Darren Soto,
Member of Congress.
A. Donald McEachin,
Ranking Member, Subcommittee
on Oversight and
Investigations.
Donald S. Beyer, Jr.,
Member of Congress.
Nanette Diaz Barragan,
Member of Congress.
Jimmy Panetta,
Member of Congress.
[all]