Sec. 10325. Authorization of Phase III of Yakima River Basin Water Enhancement Project

2,973 words·~14 min read·/bill/114/s/2012/es/section-10325

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Title XII of Public Law 103–434 (108 Stat. 4550) is amended by adding at the end the following: The Secretary shall implement the Integrated Plan as Phase III of the Yakima River Basin Water Enhancement Project in accordance with this section and applicable laws. The Secretary, in coordination with the State of Washington and Yakama Nation and subject to feasibility studies, environmental reviews, and the availability of appropriations, shall implement an initial development phase of the Integrated Plan, to— complete the planning, design, and construction or development of upstream and downstream fish passage facilities, as previously authorized by the Hoover Power Plant Act of 1984 ( 43 U.S.C. 619 et seq. ) at Cle Elum Reservoir and another Yakima Project reservoir identified by the Secretary as consistent with the Integrated Plan, subject to the condition that, if the Yakima Project reservoir identified by the Secretary contains a hydropower project licensed by the Federal Energy Regulatory Commission, the Secretary shall cooperate with the Federal Energy Regulatory Commission in a timely manner to ensure that actions taken by the Secretary are consistent with the applicable hydropower project license; negotiate long-term agreements with participating proratable irrigation entities in the Yakima Basin and, acting through the Bureau of Reclamation, coordinate between Bureaus of the Department of the Interior and with the heads of other Federal agencies to negotiate agreements concerning leases, easements, and rights-of-way on Federal land, and other terms and conditions determined to be necessary to allow for the non-Federal financing, construction, operation, and maintenance of— new facilities needed to access and deliver inactive storage in Lake Kachess for the purpose of providing drought relief for irrigation (known as the Kachess Drought Relief Pumping Plant ); and a conveyance system to allow transfer of water between Keechelus Reservoir to Kachess Reservoir for purposes of improving operational flexibility for the benefit of both fish and irrigation (known as the K to K Pipeline ); participate in, provide funding for, and accept non-Federal financing for— water conservation projects, not subject to the provisions of the Basin Conservation Program described in section 1203, that are intended to partially implement the Integrated Plan by providing 85,000 acre-feet of conserved water to improve tributary and mainstem stream flow; and aquifer storage and recovery projects; study, evaluate, and conduct feasibility analyses and environmental reviews of fish passage, water supply (including groundwater and surface water storage), conservation, habitat restoration projects, and other alternatives identified as consistent with the purposes of this Act, for the initial and future phases of the Integrated Plan; coordinate with and assist the State of Washington in implementing a robust water market to enhance water management in the Yakima River basin, including— assisting in identifying ways to encourage and increase the use of, and reduce the barriers to, water transfers, leasing, markets, and other voluntary transactions among public and private entities in the Yakima River basin; providing technical assistance, including scientific data and market information; and negotiating agreements that would facilitate voluntary water transfers between entities, including as appropriate, the use of federally managed infrastructure; and enter into cooperative agreements with, or, subject to a minimum non-Federal cost-sharing requirement of 50 percent, make grants to, the Yakama Nation, the State of Washington, Yakima River basin irrigation districts, water districts, conservation districts, other local governmental entities, nonprofit organizations, and land owners to carry out this title under such terms and conditions as the Secretary may require, including the following purposes:

Land and water transfers, leases, and acquisitions from willing participants, so long as the acquiring entity shall hold title and be responsible for any and all required operations, maintenance, and management of that land and water. To combine or relocate diversion points, remove fish barriers, or for other activities that increase flows or improve habitat in the Yakima River and its tributaries in furtherance of this title. To implement, in partnership with Federal and non-Federal entities, projects to enhance the health and resilience of the watershed.

The Secretary shall commence implementation of the activities included under the initial development phase pursuant to this paragraph— on the date of enactment of this section; and on completion of applicable feasibility studies, environmental reviews, and cost-benefit analyses that include favorable recommendations for further project development. The Secretary, in coordination with the State of Washington and in consultation with the Yakama Nation, shall develop plans for intermediate and final development phases of the Integrated Plan to achieve the purposes of this Act, including conducting applicable feasibility studies, environmental reviews, and other relevant studies needed to develop the plans.

The Secretary shall develop an intermediate development phase to implement the Integrated Plan that, subject to authorization and appropriation, would commence not later than 10 years after the date of enactment of this section. The Secretary shall develop a final development phase to implement the Integrated Plan that, subject to authorization and appropriation, would commence not later than 20 years after the date of enactment of this section. The implementation by the Secretary of projects and activities identified for implementation under the Integrated Plan shall be— subject to authorization and appropriation; contingent on the completion of applicable feasibility studies, environmental reviews, and cost-benefit analyses that include favorable recommendations for further project development; implemented on public review and a determination by the Secretary that design, construction, and operation of a proposed project or activity is in the best interest of the public; and in compliance with all applicable laws, including the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) and the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ).

Not later than 5 years after the date of enactment of this section, the Secretary, in conjunction with the State of Washington and in consultation with the Yakama Nation, shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a progress report on the development and implementation of the Integrated Plan. The progress report under this paragraph shall— provide a review and reassessment, if needed, of the objectives of the Integrated Plan, as applied to all elements of the Integrated Plan; assess, through performance metrics developed at the initiation of, and measured throughout the implementation of, the Integrated Plan, the degree to which the implementation of the initial development phase addresses the objectives and all elements of the Integrated Plan; identify the amount of Federal funding and non-Federal contributions received and expended during the period covered by the report; describe the pace of project development during the period covered by the report; identify additional projects and activities proposed for inclusion in any future phase of the Integrated Plan to address the objectives of the Integrated Plan, as applied to all elements of the Integrated Plan; and for water supply projects— provide a preliminary discussion of the means by which— water and costs associated with each recommended project would be allocated among authorized uses; and those allocations would be consistent with the objectives of the Integrated Plan; and establish a plan for soliciting and formalizing subscriptions among individuals and entities for participation in any of the recommended water supply projects that will establish the terms for participation, including fiscal obligations associated with subscription.

Long-term agreements negotiated between the Secretary and participating proratable irrigation entities in the Yakima Basin for the non-Federal financing, construction, operation, and maintenance of the Drought Relief Pumping Plant and K to K Pipeline shall include provisions regarding— responsibilities of the participating proratable irrigation entities for the planning, design, and construction of infrastructure in consultation and coordination with the Secretary; property titles and responsibilities of the participating proratable irrigation entities for the maintenance of and liability for all infrastructure constructed under this title; operation and integration of the projects by the Secretary in the operation of the Yakima Project; costs associated with the design, financing, construction, operation, maintenance, and mitigation of projects, with the costs of Federal oversight and review to be nonreimbursable to the participating proratable irrigation entities and the Yakima Project; and responsibilities for the pumping and operational costs necessary to provide the total water supply available made inaccessible due to drought pumping during the preceding 1 or more calendar years, in the event that the Kachess Reservoir fails to refill as a result of pumping drought storage water during the preceding 1 or more calendar years, which shall remain the responsibility of the participating proratable irrigation entities.

The additional stored water made available by the construction of facilities to access and deliver inactive storage in Kachess Reservoir under subsection (a)(2)(A)(ii)(I) shall— be considered to be Yakima Project water; not be part of the total water supply available, as that term is defined in various court rulings; and be used exclusively by the Secretary— to enhance the water supply in years when the total water supply available is not sufficient to provide 70 percent of proratable entitlements in order to make that additional water available up to 70 percent of proratable entitlements to the Kittitas Reclamation District, the Roza Irrigation District, or other proratable irrigation entities participating in the construction, operation, and maintenance costs of the facilities under this title under such terms and conditions to which the districts may agree, subject to the conditions that— the Bureau of Indian Affairs, the Wapato Irrigation Project, and the Yakama Nation, on an election to participate, may also obtain water from Kachess Reservoir inactive storage to enhance applicable existing irrigation water supply in accordance with such terms and conditions to which the Bureau of Indian Affairs and the Yakama Nation may agree; and the additional supply made available under this clause shall be available to participating individuals and entities in proportion to the proratable entitlements of the participating individuals and entities, or in such other proportion as the participating entities may agree; and to facilitate reservoir operations in the reach of the Yakima River between Keechelus Dam and Easton Dam for the propagation of anadromous fish.

Nothing in this paragraph affects (as in existence on the date of enactment of this section) any contract, law (including regulations) relating to repayment costs, water right, or Yakama Nation treaty right. The Secretary shall not commence entering into agreements pursuant to subsection (a)(2)(A)(ii) or subsection (b)(1) or implementing any activities pursuant to the agreements before the date on which— all applicable and required feasibility studies, environmental reviews, and cost-benefit analyses have been completed and include favorable recommendations for further project development, including an analysis of— the impacts of the agreements and activities conducted pursuant to subsection (a)(2)(A)(ii) on adjacent communities, including potential fire hazards, water access for fire districts, community and homeowner wells, future water levels based on projected usage, recreational values, and property values; and specific options and measures for mitigating the impacts, as appropriate; the Secretary has made the agreements and any applicable project designs, operations plans, and other documents available for public review and comment in the Federal Register for a period of not less than 60 days; and the Secretary has made a determination, consistent with applicable law, that the agreements and activities to which the agreements relate— are in the public interest; and could be implemented without significant adverse impacts to the environment.

The Administrator of the Bonneville Power Administration, pursuant to the Pacific Northwest Electric Power Planning and Conservation Act ( 16 U.S.C. 839 et seq. ), shall provide to the Secretary project power to operate the Kachess Pumping Plant constructed under this title if inactive storage in Kachess Reservoir is needed to provide drought relief for irrigation, subject to the requirements of subparagraphs

(B)and (C). Power may be provided under subparagraph

(A)only if— there is in effect a drought declaration issued by the State of Washington; there are conditions that have led to 70 percent or less water delivery to proratable irrigation districts, as determined by the Secretary; and the Secretary determines that it is appropriate to provide power under that subparagraph. Power under subparagraph

(A)shall be provided until the date on which the Secretary determines that power should no longer be provided under that subparagraph, but for not more than a 1-year period or the period during which the Secretary determines that drought mitigation measures are necessary in the Yakima River basin. The Administrator of the Bonneville Power Administration shall provide power under subparagraph

(A)at the then-applicable lowest Bonneville Power Administration rate for public body, cooperative, and Federal agency customers firm obligations, which as of the date of enactment of this section is the priority firm Tier 1 rate, and shall not include any irrigation discount. During any period in which power is not being provided under subparagraph (A), the power needed to operate the Kachess Pumping Plant shall be obtained by the Secretary from a local provider. The cost of power for such pumping, station service power, and all costs of transmitting power from the Federal Columbia River Power System to the Yakima Enhancement Project pumping facilities shall be borne by irrigation districts receiving the benefits of that water. The Commissioner of Reclamation shall be responsible for arranging transmission for deliveries of Federal power over the Bonneville system through applicable tariff and business practice processes of the Bonneville system and for arranging transmission for deliveries of power obtained from a local provider. Any water supply that results from an aquifer storage and recovery project shall not be considered to be a part of the total water supply available if— the water for the aquifer storage and recovery project would not be available for use, but instead for the development of the project; the aquifer storage and recovery project will not otherwise impair any water supply available for any individual or entity entitled to use the total water supply available; and the development of the aquifer storage and recovery project will not impair fish or other aquatic life in any localized stream reach. The Secretary may provide technical assistance for, and participate in, any of the following 3 types of groundwater recharge projects (including the incorporation of groundwater recharge projects into Yakima Project operations, as appropriate): Aquifer recharge projects designed to redistribute Yakima Project water within a water year for the purposes of supplementing stream flow during the irrigation season, particularly during storage control, subject to the condition that if such a project is designed to supplement a mainstem reach, the water supply that results from the project shall be credited to instream flow targets, in lieu of using the total water supply available to meet those targets. Aquifer storage and recovery projects that are designed, within a given water year or over multiple water years— to supplement or mitigate for municipal uses; to supplement municipal supply in a subsurface aquifer; or to mitigate the effect of groundwater use on instream flow or senior water rights. Aquifer storage and recovery projects designed to supplement existing irrigation water supply, or to store water in subsurface aquifers, for use by the Kittitas Reclamation District, the Roza Irrigation District, or any other proratable irrigation entity participating in the repayment of the construction, operation, and maintenance costs of the facilities under this section during years in which the total water supply available is insufficient to provide to those proratable irrigation entities all water to which the entities are entitled, subject to the conditions that— the Bureau of Indian Affairs, the Wapato Irrigation Project, and the Yakama Nation, on an election to participate, may also obtain water from aquifer storage to enhance applicable existing irrigation water supply in accordance with such terms and conditions to which the Bureau of Indian Affairs and the Yakama Nation may agree; and nothing in this subparagraph affects (as in existence on the date of enactment of this section) any contract, law (including regulations) relating to repayment costs, water right, or Yakama Nation treaty right. The Federal cost-share of a project carried out under this section shall be determined in accordance with the applicable laws (including regulations) and policies of the Bureau of Reclamation. The Federal cost-share for the initial development phase of the Integrated Plan shall not exceed 50 percent of the total cost of the initial development phase. The Secretary may accept as part of the non-Federal cost-share of a project carried out under this section, and expend as if appropriated, any contribution (including in-kind services) by the State of Washington or any other individual or entity that the Secretary determines will enhance the conduct and completion of the project. Except as otherwise provided in this title, other Federal funds may not be used to provide the non-Federal cost-share of a project carried out under this section. Nothing in this section shall— be a new or supplemental benefit for purposes of the Reclamation Reform Act of 1982 ( 43 U.S.C. 390aa et seq. ); affect any contract in existence on the date of enactment of the Yakima River Basin Water Enhancement Project Phase III Act of 2016 that was executed pursuant to the reclamation laws; affect any contract or agreement between the Bureau of Indian Affairs and the Bureau of Reclamation; affect, waive, abrogate, diminish, define, or interpret the treaty between the Yakama Nation and the United States; or constrain the continued authority of the Secretary to provide fish passage in the Yakima Basin in accordance with the Hoover Power Plant Act of 1984 ( 43 U.S.C. 619 et seq. ). The Secretary shall retain authority and discretion over the management of project supplies to optimize operational use and flexibility to ensure compliance with all applicable Federal and State laws, treaty rights of the Yakama Nation, and legal obligations, including those contained in this Act. That authority and discretion includes the ability of the United States to store, deliver, conserve, and reuse water supplies deriving from projects authorized under this title. .

Connectionstraces to 5

Traces to 5 documents

U.S. Code

2 references not yet in our index