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                                                       Calendar No. 276
                                                       
116th Congress }                                      { Report
                                 SENATE
 1st Session   }                                      { 116-155

======================================================================



 
                    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.