USC Subchapter I

in effect

43 U.S.C. § 2401 Definitions

In this subchapter: (1) ConstructionThe term “construction” means the installation of infrastructure and the upgrading of existing facilities in locations in which the infrastructure or facilities are associated with the new infrastructure of a rural water project recommended by the Secretary pursuant to this subchapter. (2) Federal reclamation lawThe term “Federal reclamation law” means 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) IndianThe term “Indian” means an individual who is a member of an Indian tribe. (4) Indian tribeThe term “Indian tribe” has the meaning given the term in section 5304 of title 25. (5) Non-Federal project entityThe term “non-Federal project entity” means a State, regional, or local authority, Indian tribe or tribal organization, or other qualifying entity, such as a water conservation district, water conservancy district, or rural water district or association. (6) Operations, maintenance, and replacement costs(A) In generalThe term “operations, maintenance, and replacement costs” means all costs for the operation of a rural water supply project that are necessary for the safe, efficient, and continued functioning of the project to produce the benefits described in a feasibility study. (B) InclusionsThe term “operations, maintenance, and replacement costs” includes—(i) repairs of a routine nature that maintain a rural water supply project in a well kept condition; (ii) replacement of worn-out project elements; and (iii) rehabilitation activities necessary to bring a deteriorated project back to the original condition of the project. (C) ExclusionThe term “operations, maintenance, and replacement costs” does not include construction costs. (7) ProgramThe term “Program” means the rural water supply program carried out under section 2402 of this title. (8) Reclamation StatesThe term “Reclamation States” means the States and areas referred to in the first section of the Act of June 17, 1902 (43 U.S.C. 391). (9) Rural water supply project(A) In generalThe term “rural water supply project” means a project that is designed to serve a community or group of communities, each of which has a population of not more than 50,000 inhabitants, which may include Indian tribes and tribal organizations, dispersed homesites, or rural areas with domestic, industrial, municipal, and residential water. (B) InclusionThe term “rural water supply project” includes—(i) incidental noncommercial livestock watering and noncommercial irrigation of vegetation and small gardens of less than 1 acre; and (ii) a project to improve rural water infrastructure, including—(I) pumps, pipes, wells, and other diversions; (II) storage tanks and small impoundments; (III) water treatment facilities for potable water supplies, including desalination facilities; (IV) equipment and management tools for water conservation, groundwater recovery, and water recycling; and (V) appurtenances. (C) ExclusionThe term “rural water supply project” does not include—(i) commercial irrigation; or (ii) major impoundment structures. (10) SecretaryThe term “Secretary” means the Secretary of the Interior. (11) Tribal organizationThe term “tribal organization” means—(A) the recognized governing body of an Indian tribe; and (B) any legally established organization of Indians that is controlled, sanctioned, or chartered by the governing body or democratically elected by the adult members of the Indian community to be served by the organization.

43 U.S.C. § 2402 Rural water supply program

(a) In generalThe Secretary, in cooperation with non-Federal project entities and consistent with this subchapter, may carry out a rural water supply program in Reclamation States to—(1) investigate and identify opportunities to ensure safe and adequate rural water supply projects for domestic, municipal, and industrial use in small communities and rural areas of the Reclamation States; (2) plan the design and construction, through the conduct of appraisal investigations and feasibility studies, of rural water supply projects in Reclamation States; and (3) oversee, as appropriate, the construction of rural water supply projects in Reclamation States that are recommended by the Secretary in a feasibility report developed pursuant to section 2405 of this title and subsequently authorized by Congress. (b) Non-Federal project entityAny activity carried out under this subchapter shall be carried out in cooperation with a qualifying non-Federal project entity, consistent with this subchapter. (c) Eligibility criteriaNot later than 1 year after December 22, 2006, the Secretary shall, consistent with this subchapter, develop and publish in the Federal Register criteria for—(1) determining the eligibility of a rural community for assistance under the Program; and (2) prioritizing requests for assistance under the Program. (d) FactorsThe criteria developed under subsection (c) shall take into account such factors as whether—(1) a rural water supply project—(A) serves—(i) rural areas and small communities; or (ii) Indian tribes; or (B) promotes and applies a regional or watershed perspective to water resources management; (2) there is an urgent and compelling need for a rural water supply project that would—(A) improve the health or aesthetic quality of water; (B) result in continuous, measurable, and significant water quality benefits; or (C) address current or future water supply needs; (3) a rural water supply project helps meet applicable requirements established by law; and (4) a rural water supply project is cost effective. (e) InclusionsThe Secretary may include—(1) to the extent that connection provides a reliable water supply, a connection to pre-existing infrastructure (including impoundments and conveyance channels) as part of a rural water supply project; and (2) notwithstanding the limitation on population under section 2401(9)(A) of this title, a town or community with a population in excess of 50,000 inhabitants in an area served by a rural water supply project if, at the discretion of the Secretary, the town or community is considered to be a critical partner in the rural supply project.

43 U.S.C. § 2403 Rural water programs assessment

(a) In generalIn consultation with the Secretary of Agriculture, the Administrator of the Environmental Protection Agency, the Director of the Indian Health Service, the Secretary of Housing and Urban Development, and the Secretary of the Army, the Secretary shall develop an assessment of—(1) the status of all rural water supply projects under the jurisdiction of the Secretary authorized but not completed prior to December 22, 2006, including appropriation amounts, the phase of development, total anticipated costs, and obstacles to completion; (2) the current plan (including projected financial and workforce requirements) for the completion of the projects identified in paragraph (1) within the time frames established under the provisions of law authorizing the projects or the final engineering reports for the projects; (3) the demand for new rural water supply projects; (4) rural water programs within other agencies and a description of the extent to which those programs provide support for rural water supply projects and water treatment programs in Reclamation States, including an assessment of the requirements, funding levels, and conditions of eligibility for the programs assessed; (5) the extent of the demand that the Secretary can meet with the Program; (6) how the Program will complement authorities already within the jurisdiction of the Secretary and the heads of the agencies with whom the Secretary consults; and (7) improvements that can be made to coordinate and integrate the authorities of the agencies with programs evaluated under paragraph (4), including any recommendations to consolidate some or all of the activities of the agencies with respect to rural water supply. (b) Consultation with StatesBefore finalizing the assessment developed under subsection (a), the Secretary shall solicit comments from States with identified rural water needs. (c) ReportNot later than 2 years after December 22, 2006, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a detailed report on the assessment conducted under subsection (a).

43 U.S.C. § 2404 Appraisal investigations

(a) In generalOn request of a non-Federal project entity with respect to a proposed rural water supply project that meets the eligibility criteria published under section 2402(c) of this title and subject to the availability of appropriations, the Secretary may—(1) receive and review an appraisal investigation that is—(A) developed by the non-Federal project entity, with or without support from the Secretary; and (B) submitted to the Secretary by the non-Federal project entity; (2) conduct an appraisal investigation; or (3) provide a grant to, or enter into a cooperative agreement with, the non-Federal project entity to conduct an appraisal investigation, if the Secretary determines that—(A) the non-Federal project entity is qualified to complete the appraisal investigation in accordance with the criteria published under section 2402(c) of this title; and (B) using the non-Federal project entity to conduct the appraisal investigation is a cost-effective alternative for completing the appraisal investigation. (b) DeadlineAn appraisal investigation conducted under subsection (a) shall be scheduled for completion not later than 2 years after the date on which the appraisal investigation is initiated. (c) Appraisal reportIn accordance with subsection (f), after an appraisal investigation is submitted to the Secretary under subsection (a)(1) or completed under paragraph (2) or (3) of subsection (a), the Secretary shall prepare an appraisal report that—(1) considers—(A) whether the project meets—(i) the appraisal criteria developed under subsection (d); and (ii) the eligibility criteria developed under section 2402(c) of this title; (B) whether viable water supplies and water rights exist to supply the project, including all practicable water sources such as lower quality waters, nonpotable waters, and water reuse-based water supplies; (C) whether the project has a positive effect on public health and safety; (D) whether the project will meet water demand, including projected future needs; (E) the extent to which the project provides environmental benefits, including source water protection; (F) whether the project applies a regional or watershed perspective and promotes benefits in the region in which the project is carried out; (G) whether the project—(i)(I) implements an integrated resources management approach; or (II) enhances water management flexibility, including providing for—(aa) local control to manage water supplies under varying water supply conditions; and (bb) participation in water banking and markets for domestic and environmental purposes; and (ii) promotes long-term protection of water supplies; (H) preliminary cost estimates for the project; and (I) whether the non-Federal project entity has the capability to pay 100 percent of the costs associated with the operations, maintenance, and replacement of the facilities constructed or developed as part of the rural water supply project; and (2) provides recommendations on whether a feasibility study should be initiated under section 2405(a) of this title. (d) Appraisal criteria(1) In generalNot later than 1 year after December 22, 2006, the Secretary shall promulgate criteria (including appraisal factors listed under subsection (c)) against which the appraisal investigations shall be assessed for completeness and appropriateness for a feasibility study. (2) InclusionsTo minimize the cost of a rural water supply project to a non-Federal project entity, the Secretary shall include in the criteria methods to scale the level of effort needed to complete the appraisal investigation relative to the total size and cost of the proposed rural water supply project. (e) Review of appraisal investigation(1) In generalNot later than 90 days after the date of submission of an appraisal investigation under paragraph (1) or (3) of subsection (a), the Secretary shall provide to the non-Federal entity that conducted the investigation a determination of whether the investigation has included the information necessary to determine whether the proposed rural water supply project satisfies the criteria promulgated under subsection (d). (2) No satisfaction of criteriaIf the Secretary determines that the appraisal investigation submitted by a non-Federal entity does not satisfy the criteria promulgated under subsection (d), the Secretary shall inform the non-Federal entity of the reasons why the appraisal investigation is deficient. (3) Responsibility of SecretaryIf an appraisal investigation as first submitted by a non-Federal entity does not provide all necessary information, as defined by the Secretary, the Secretary shall have no obligation to conduct further analysis until the non-Federal project entity submitting the appraisal study conducts additional investigation and resubmits the appraisal investigation under this subsection. (f) Appraisal reportOnce the Secretary has determined that an investigation provides the information necessary under subsection (e), the Secretary shall—(1) complete the appraisal report required under subsection (c); (2) make available to the public, on request, the appraisal report prepared under this subchapter; and (3) promptly publish in the Federal Register a notice of the availability of the results. (g) Costs(1) Federal shareThe Federal share of an appraisal investigation conducted under subsection (a) shall be 100 percent of the total cost of the appraisal investigation, up to $200,000. (2) Non-Federal share(A) In generalExcept as provided in subparagraph (B), if the cost of conducting an appraisal investigation is more than $200,000, the non-Federal share of the costs in excess of $200,000 shall be 50 percent. (B) ExceptionThe Secretary may reduce the non-Federal share required under subparagraph (A) if the Secretary determines that there is an overwhelming Federal interest in the appraisal investigation. (C) FormThe non-Federal share under subparagraph (A) may be in the form of any in-kind services that the Secretary determines would contribute substantially toward the conduct and completion of the appraisal investigation. (h) Consultation; identification of funding sourcesIn conducting an appraisal investigation under subsection (a)(2), the Secretary shall—(1) consult and cooperate with the non-Federal project entity and appropriate State, tribal, regional, and local authorities; (2) consult with the heads of appropriate Federal agencies to—(A) ensure that the proposed rural water supply project does not duplicate a project carried out under the authority of the agency head; and (B) if a duplicate project is being carried out, identify the authority under which the duplicate project is being carried out; and (3) identify what funding sources are available for the proposed rural water supply project.

43 U.S.C. § 2405 Feasibility studies

(a) In generalOn completion of an appraisal report under section 2404(c) of this title that recommends undertaking a feasibility study and subject to the availability of appropriations, the Secretary shall—(1) in cooperation with a non-Federal project entity, carry out a study to determine the feasibility of the proposed rural water supply project; (2) receive and review a feasibility study that is—(A) developed by the non-Federal project entity, with or without support from the Secretary; and (B) submitted to the Secretary by the non-Federal project entity; or (3)(A) provide a grant to, or enter into a cooperative agreement with, a non-Federal project entity to conduct a feasibility study, for submission to the Secretary, if the Secretary determines that—(i) the non-Federal entity is qualified to complete the feasibility study in accordance with the criteria promulgated under subsection (d); and (ii) using the non-Federal project entity to conduct the feasibility study is a cost-effective alternative for completing the appraisal investigation; or (B) if the Secretary determines not to provide a grant to, or enter into a cooperative agreement with, a non-Federal project entity under subparagraph (A), provide to the non-Federal project entity notice of the determination, including an explanation of the reason for the determination. (b) Review of non-Federal feasibility studies(1) In generalIn conducting a review of a feasibility study submitted under paragraph (2) or (3) of subsection (a), the Secretary shall—(A) in accordance with the feasibility factors described in subsection (c) and the criteria promulgated under subsection (d), assess the completeness of the feasibility study; and (B) if the Secretary determines that a feasibility study is not complete, notify the non-Federal entity of the determination. (2) RevisionsIf the Secretary determines under paragraph (1)(B) that a feasibility study is not complete, the non-Federal entity shall pay any costs associated with revising the feasibility study. (c) Feasibility factorsFeasibility studies authorized or reviewed under this subchapter shall include an assessment of—(1) near- and long-term water demand in the area to be served by the rural water supply project; (2) advancement of public health and safety of any existing rural water supply project and other benefits of the proposed rural water supply project; (3) alternative new water supplies in the study area, including any opportunities to treat and use low-quality water, nonpotable water, water reuse-based supplies, and brackish and saline waters through innovative and economically viable treatment technologies; (4) environmental quality and source water protection issues related to the rural water supply project; (5) innovative opportunities for water conservation in the study area to reduce water use and water system costs, including—(A) nonstructural approaches to reduce the need for the project; and (B) demonstration technologies; (6) the extent to which the project and alternatives take advantage of economic incentives and the use of market-based mechanisms; (7)(A) the construction costs and projected operations, maintenance, and replacement costs of all alternatives; and (B) the economic feasibility and lowest cost method of obtaining the desired results of each alternative, taking into account the Federal cost-share; (8) the availability of guaranteed loans for a proposed rural water supply project; (9) the financial capability of the non-Federal project entity to pay the non-Federal project entity’s proportionate share of the design and construction costs and 100 percent of operations, maintenance, and replacement costs, including the allocation of costs to each non-Federal project entity in the case of multiple entities; (10) whether the non-Federal project entity has developed an operations, management, and replacement plan to assist the non-Federal project entity in establishing rates and fees for beneficiaries of the rural water supply project that includes a schedule identifying the annual operations, maintenance, and replacement costs that should be allocated to each non-Federal entity participating in the project; (11)(A) the non-Federal project entity administrative organization that would implement construction, operations, maintenance, and replacement activities; and (B) the fiscal, administrative, and operational controls to be implemented to manage the project; (12) the extent to which assistance for rural water supply is available under other Federal authorities; (13) the engineering, environmental, and economic activities to be undertaken to carry out the proposed rural water supply project; (14) the extent to which the project involves partnerships with other State, local, or tribal governments or Federal entities; and (15) in the case of a project intended for Indian tribes and tribal organizations, the extent to which the project addresses the goal of economic self-sufficiency. (d) Feasibility study criteria(1) In generalNot later than 18 months after December 22, 2006, the Secretary shall promulgate criteria (including the feasibility factors listed under subsection (c)) under which the feasibility studies shall be assessed for completeness and appropriateness. (2) InclusionsThe Secretary shall include in the criteria promulgated under paragraph (1) methods to scale the level of effort needed to complete the feasibility assessment relative to the total size and cost of the proposed rural water supply project and reduce total costs to non-Federal entities. (e) Feasibility report(1) 11 So in original. No par. (2) has been enacted. In generalAfter completion of appropriate feasibility studies for rural water supply projects that address the factors described in subsection (c) and the criteria promulgated under subsection (d), the Secretary shall—(A) develop a feasibility report that includes—(i) a recommendation of the Secretary on—(I) whether the rural water supply project should be authorized for construction; and (II) the appropriate non-Federal share of construction costs, which shall be—(aa) at least 25 percent of the total construction costs; and (bb) determined based on an analysis of the capability-to-pay information considered under subsections (c)(9) and (f); and (ii) if the Secretary recommends that the project should be authorized for construction—(I) what amount of grants, loan guarantees, or combination of grants and loan guarantees should be used to provide the Federal cost share; (II) a schedule that identifies the annual operations, maintenance, and replacement costs that should be allocated to each non-Federal entity participating in the rural water supply project; and (III) an assessment of the financial capability of each non-Federal entity participating in the rural water supply project to pay the allocated annual operation, maintenance, and replacement costs for the rural water supply project; (B) submit the report to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives; (C) make the report publicly available, along with associated study documents; and (D) publish in the Federal Register a notice of the availability of the results. (f) Capability-to-pay(1) In generalIn evaluating a proposed rural water supply project under this section, the Secretary shall—(A) consider the financial capability of any non-Federal project entities participating in the rural water supply project to pay 25 percent or more of the capital construction costs of the rural water supply project; and (B) recommend an appropriate Federal share and non-Federal share of the capital construction costs, as determined by the Secretary. (2) FactorsIn determining the financial capability of non-Federal project entities to pay for a rural water supply project under paragraph (1), the Secretary shall evaluate factors for the project area, relative to the State average, including—(A) per capita income; (B) median household income; (C) the poverty rate; (D) the ability of the non-Federal project entity to raise tax revenues or assess fees; (E) the strength of the balance sheet of the non-Federal project entity; and (F) the existing cost of water in the region. (3) Indian tribesIn determining the capability-to-pay of Indian tribe project beneficiaries, the Secretary may consider deferring the collection of all or part of the non-Federal construction costs apportioned to Indian tribe project beneficiaries unless or until the Secretary determines that the Indian tribe project beneficiaries should pay—(A) the costs allocated to the beneficiaries; or (B) an appropriate portion of the costs. (g) Cost-sharing requirement(1) In generalExcept as otherwise provided in this subsection, the Federal share of the cost of a feasibility study carried out under this section shall not exceed 50 percent of the study costs. (2) FormThe non-Federal share under paragraph (1) may be in the form of any in-kind services that the Secretary determines would contribute substantially toward the conduct and completion of the study. (3) Financial hardshipThe Secretary may increase the Federal share of the costs of a feasibility study if the Secretary determines, based on a demonstration of financial hardship, that the non-Federal participant is unable to contribute at least 50 percent of the costs of the study. (4) Larger communitiesIn conducting a feasibility study of a rural water supply system that includes a community with a population in excess of 50,000 inhabitants, the Secretary may require the non-Federal project entity to pay more than 50 percent of the costs of the study. (h) Consultation and cooperationIn addition to the non-Federal project entity, the Secretary shall consult and cooperate with appropriate Federal, State, tribal, regional, and local authorities during the conduct of each feasibility assessment and development of the feasibility report conducted under this subchapter.

43 U.S.C. § 2406 Miscellaneous

(a) Authority of SecretaryThe Secretary may enter into contracts, financial assistance agreements, and such other agreements, and promulgate such regulations, as are necessary to carry out this subchapter. (b) Transfer of projectsNothing in this subchapter authorizes the transfer of pre-existing facilities or pre-existing components of any water system from Federal to private ownership or from private to Federal ownership. (c) Federal reclamation lawNothing in this subchapter supersedes or amends any Federal law associated with a project, or portion of a project, constructed under Federal reclamation law. (d) Interagency coordinationThe Secretary shall coordinate the Program carried out under this subchapter with existing Federal and State rural water and wastewater programs to facilitate the most efficient and effective solution to meeting the water needs of the non-Federal project sponsors. (e) Multiple Indian tribesIn any case in which a contract is entered into with, or a grant is made, to 11 So in original. The comma probably should follow “to”. an organization to perform services benefitting more than 1 Indian tribe under this subchapter, the approval of each such Indian tribe shall be a prerequisite to entering into the contract or making the grant. (f) Ownership of facilitiesTitle to any facility planned, designed, and recommended for construction under this subchapter shall be held by the non-Federal project entity. (g) Expedited proceduresIf the Secretary determines that a community to be served by a proposed rural water supply project has urgent and compelling water needs, the Secretary shall, to the maximum extent practicable, expedite appraisal investigations and reports conducted under section 2404 of this title and feasibility studies and reports conducted under section 2405 of this title. (h) Effect on State water law(1) In generalNothing in this subchapter preempts or affects State water law or an interstate compact governing water. (2) Compliance requiredThe Secretary shall comply with State water laws in carrying out this subchapter. (i) No additional requirementsNothing in this subchapter requires a feasibility study for, or imposes any other additional requirements with respect to, rural water supply projects or programs that are authorized before December 22, 2006.

43 U.S.C. § 2407 Reports

Beginning in fiscal year 2007, and each fiscal year thereafter through fiscal year 2012, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives an annual report that describes the number and type of full-time equivalent positions in the Department of the Interior and the amount of overhead costs of the Department of the Interior that are allocated to carrying out this subchapter for the applicable fiscal year.

43 U.S.C. § 2408 Authorization of appropriations

(a) In generalThere is authorized to be appropriated to carry out this subchapter $15,000,000 for each of fiscal years 2007 through 2016, to remain available until expended. (b) Rural water programs assessmentOf the amounts made available under subsection (a), not more than $1,000,000 may be made available to carry out section 2403 of this title for each of fiscal years 2007 and 2008. (c) Construction costsNo amounts made available under this section shall be used to pay construction costs associated with any rural water supply project.

43 U.S.C. § 2409 Termination of authority

The authority of the Secretary to carry out this subchapter terminates on September 30, 2016.