43 U.S. Code § 390b–2 - Leveraging Federal infrastructure for increased water supply

(a) In general

At the request of a non-Federal interest, the Secretary may review proposals to increase the quantity of available supplies of water at a Federal water resources development project through—

(1) modification of the project;

(2) modification of how the project is managed; or

(3) accessing water released from the project.

(b) Proposals included

A proposal under subsection (a) may include—

(1) increasing the storage capacity of the project;

(2) diversion of water released or withdrawn from the project—

(A) to recharge groundwater;

(B) to aquifer storage and recovery; or

(C) to any other storage facility;

(3) construction of facilities for delivery of water from pumping stations constructed by the Secretary;

(4) construction of facilities to access water; and

(5) a combination of the activities described in paragraphs (1) through (4).

(c) Exclusions

This section shall not apply to a proposal that—

(1) reallocates existing water supply or hydropower storage; or

(2) reduces water available for any authorized project purpose.

(d) Other Federal projects

In any case in which a proposal relates to a Federal project that is not operated by the Secretary, this section shall apply only to activities under the authority of the Secretary.

(e) Review process

(1) Notice

On receipt of a proposal submitted under subsection (a), the Secretary shall provide a copy of the proposal to each entity described in paragraph (2) and, if applicable, the Federal agency that operates the project, in the case of a project operated by an agency other than the Department of the Army.

(2) Public participation

In reviewing proposals submitted under subsection (a), and prior to making any decisions regarding a proposal, the Secretary shall comply with all applicable public participation requirements under law, including consultation with—

(A) affected States;

(B) power marketing administrations, in the case of reservoirs with Federal hydropower projects;

(C) entities responsible for operation and maintenance costs;

(D) any entity that has a contractual right from the Federal Government or a State to withdraw water from, or use storage at, the project;

(E) entities that the State determines hold rights under State law to the use of water from the project; and

(F) units of local government with flood risk reduction responsibilities downstream of the project.

(f) Authorities

A proposal submitted to the Secretary under subsection (a) may be reviewed and approved, if applicable and appropriate, under—

(1) the specific authorization for the water resources development project;

(2) section 549a of title 33;

(3) section 390b of this title; and

(4) section 408 of title 33.

(g) Limitations

The Secretary shall not approve a proposal submitted under subsection (a) that—

(1) is not supported by the Federal agency that operates the project, if that agency is not the Department of the Army;

(2) interferes with an authorized purpose of the project;

(3) adversely impacts contractual rights to water or storage at the reservoir;

(4) adversely impacts legal rights to water under State law, as determined by an affected State;

(5) increases costs for any entity other than the entity that submitted the proposal; or

(6) if a project is subject to section 390b(e) of this title, makes modifications to the project that do not meet the requirements of that section unless the modification is submitted to and authorized by Congress.

(h) Cost share

(1) In general

Except as provided in paragraph (2), 100 percent of the cost of developing, reviewing, and implementing a proposal submitted under subsection (a) shall be provided by an entity other than the Federal Government.

(2) Planning assistance to states

In the case of a proposal from an entity authorized to receive assistance under section 1962d–16 of title 42, the Secretary may use funds available under that section to pay 50 percent of the cost of a review of a proposal submitted under subsection (a).

(3) Operation and maintenance costs

(A) In general

Except as provided in subparagraphs (B) and (C), the operation and maintenance costs for the non-Federal sponsor of a proposal submitted under subsection (a) shall be 100 percent of the separable operation and maintenance costs associated with the costs of implementing the proposal.

(B) Certain water supply storage projects

For a proposal submitted under subsection (a) for constructing additional water supply storage at a reservoir for use under a water supply storage agreement, in addition to the costs under subparagraph (A), the non-Federal costs shall include the proportional share of any joint-use costs for operation, maintenance, repair, replacement, or rehabilitation of the reservoir project determined in accordance with section 390b of this title.

(C) Voluntary contributions

An entity other than an entity described in subparagraph (A) may voluntarily contribute to the costs of implementing a proposal submitted under subsection (a).

(i) Contributed funds

(1) Contributed funds for corps projects

The Secretary may may receive and expend funds contributed by a non-Federal interest for the review and approval of a proposal submitted under subsection (a).

(2) Contributed funds for other Federal reservoir projects

The Secretary is authorized to receive and expend funds from a non-Federal interest to formulate, review, or revise operational documents, pursuant to a proposal submitted in accordance subsection (a), for any reservoir for which the Secretary is authorized to prescribe regulations for the use of storage allocated for flood control or navigation pursuant to section 709 of title 33.

(j) Assistance

On request by a non-Federal interest, the Secretary may provide technical assistance in the development or implementation of a proposal under subsection (a), including assistance in obtaining necessary permits for construction, if the non-Federal interest contracts with the Secretary to pay all costs of providing the technical assistance.

(k) Exclusion

This section shall not apply to reservoirs in—

(1) the Upper Missouri River;

(2) the Apalachicola-Chattahoochee-Flint river system;

(3) the Alabama-Coosa-Tallapoosa river system; and

(4) the Stones River.

(l) Effect of section

Nothing in this section affects or modifies any authority of the Secretary to review or modify reservoirs.

(Pub. L. 114–322, title I, § 1118, Dec. 16, 2016, 130 Stat. 1640; Pub. L. 116–260, div. AA, title I, § 162, Dec. 27, 2020, 134 Stat. 2667.)

Editorial Notes

Amendments

2020—Subsec. (i). Pub. L. 116–260 designated existing provisions as par. (1), inserted heading, and added par. (2).

Statutory Notes and Related Subsidiaries

“Secretary” Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of Title 33, Navigation and Navigable Waters.