33 U.S.C. § 2330c: Aquatic ecosystem restoration

Summary

The Secretary can agree to pay for the design, study, and construction of projects in Reclamation States that improve fisheries, wildlife, or aquatic habitat, including by restoring fish passage (for example by removing or bypassing barriers). Eligible entities that can ask for and help carry out projects include: States and Indian Tribes; irrigation or water districts and similar local or regional authorities with water or power roles; owners of facilities that could be upgraded, changed, or removed; nonprofit conservation groups working with those owners; and state joint‑power agencies or combinations of the above. If a project would remove or change a dam and lower its storage or diversion, the Secretary can study it only with the dam owner’s consent. The Secretary can build it only after identifying and notifying all eligible entities that get water or power from the facility and waiting 120 days. Construction can go ahead only if no written objections come from entities that together receive one‑third (1/3) or more of the facility’s water or power. The Secretary must take public comment before starting design or study. Construction is voluntary and starts only after an eligible entity agrees to pay at least 35% of construction costs and to pay 100% of operation, maintenance, replacement, and rehabilitation costs. The Secretary must also find the project will not cause unaddressed harm to existing water deliveries or the environment, must honor Tribal trustee duties and treaties or compacts, must be in the United States’ financial interest for federal goals (including environmental gains in a Reclamation State), and must follow all federal and State laws, including NEPA, the Endangered Species Act, and subtitle III of title 54. The law authorizes $15,000,000 for each fiscal year 2022 through 2026, available until spent. Nothing in the program overrides other laws or state water law or interstate water compacts. The Secretary must give priority to projects with broad stakeholder support, projects that help two or more river basins and provide regional benefits, projects that are part of plans to replace aging facilities, and projects that help restore anadromous fish listed under the Endangered Species Act.

Title 33, §2330c

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(a)Definition of eligible entity

In this section, the term “eligible entity” means—

(1)any State, Indian Tribe, irrigation district, or water district;

(2)any State, regional, or local authority, the members of which include 1 or more organizations with water or power delivery authority;

(3)any other entity or organization that owns a facility that is eligible for upgrade, modification or removal under this section;

(4)any nonprofit conservation organization, acting in partnership with any entity listed in paragraphs (1) through (3), with respect to a project involving land or infrastructure owned by the entity; and

(5)an agency established under State law for the joint exercise of powers or a combination of entities described in paragraphs (1) through (4).

(b)General authority

(1)In general

Subject to the requirements of this section and paragraph (2), on request of any eligible entity the Secretary may negotiate and enter into an agreement on behalf of the United States to fund the design, study, and construction of an aquatic ecosystem restoration and protection project in a Reclamation State if the Secretary determines that the project is likely to improve the health of fisheries, wildlife or aquatic habitat, including through habitat restoration and improved fish passage via the removal or bypass of barriers to fish passage.

(2)Exception

With respect to an aquatic ecosystem restoration and protection project under this section that removes a dam or modifies a dam in a manner that reduces storage or diversion capacity, the Secretary may only negotiate and enter into an agreement to fund—

(A)the design or study of such project if the Secretary has received consent from the owner of the applicable dam; or

(B)the construction of such project if the Secretary—

(i)identifies any eligible entity that receives water or power from the facility that is under consideration for removal or modification at the time of the request;

(ii)notifies each eligible entity identified in clause (i) that the dam removal or modification project has been requested; and

(iii)does not receive, by the date that is 120 days after the date on which all eligible entities have been notified under clause (ii), written objection from 1 or more eligible entities that collectively receive ⅓ or more of the water or power delivered from the facility that is under consideration for removal or modification at the time of the request.

(c)Requirements

(1)In general

The Secretary shall accept and consider public comment prior to initiating design, study or development of a project under this section.

(2)Preconditions

Construction of a project under this section shall be a voluntary project initiated only after—

(A)an eligible entity has entered into an agreement with the Secretary to pay no less than 35 percent of the costs of project construction;

(B)an eligible entity has entered an agreement to pay 100 percent of any operation, maintenance, and replacement and rehabilitation costs with respect to the project;

(C)the Secretary determines the proposed project—

(i)will not result in an unmitigated adverse impact on fulfillment of existing water delivery obligations consistent with historical operations and applicable contracts;

(ii)will not result in an unmitigated adverse effect on the environment;

(iii)is consistent with the responsibilities of the Secretary—

(I)in the role as trustee for federally recognized Indian Tribes; and

(II)to ensure compliance with any applicable international and Tribal treaties and agreements and interstate compacts and agreements;

(iv)is in the financial interest of the United States based on a determination that the project advances Federal objectives including environmental enhancement objectives in a Reclamation State; and

(v)complies with all applicable Federal and State law, including environmental laws; and

(D)the Secretary has complied with all applicable environmental laws, including—

(i)the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(ii)the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and

(iii)subtitle III of title 54.

(d)Funding

There is authorized to be appropriated to carry out this section $15,000,000 for each of fiscal years 2022 through 2026, to remain available until expended.

(e)Effects

(1)In general

Nothing in this section supersedes or limits any existing authority provided, or responsibility conferred, by any provision of law.

(2)Effect on state water law

Nothing in this section preempts or affects any—

(A)State water law; or

(B)interstate compact governing water.

(f)Compliance required

The Secretary shall comply with applicable State water laws in carrying out this section.

(g)Priority for projects providing regional benefits and assistance for aging assets

When funding projects under this section, the Secretary shall prioritize projects that—

(1)are jointly developed and supported by a diverse array of stakeholders including representatives of irrigated agricultural production, hydroelectric production, potable water purveyors and industrial water users, Indian Tribes, commercial fishing interests, and nonprofit conservation organizations;

(2)affect water resources management in 2 or more river basins while providing regional benefits not limited to fisheries restoration;

(3)are a component of a broader strategy or plan to replace aging facilities with 1 or more alternate facilities providing similar benefits; and

(4)contribute to the restoration of anadromous fish species listed under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsec. (c)(2)(D)(i), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see

Short Title

note set out under section 4321 of Title 42 and Tables. The Endangered Species Act of 1973, referred to in subsecs. (c)(2)(D)(ii) and (g)(4), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§ 1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see

Short Title

note set out under section 1531 of Title 16 and Tables. Codification Section was enacted as part of Consolidated Appropriations Act, 2021, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

Definitions Pub. L. 116–260, div. FF, title XI, § 1115, Dec. 27, 2020, 134 Stat. 3251, provided that: “In this title [enacting this section and section 390g–9 and 1477 of Title 43, Public Lands, and amending section 1015 and 1015a of Title 16, Conservation, section 1645 and 1647b of Title 25, Indians, section 10362 and 10364 of Title 42, The Public Health and Welfare, section 510b of Title 43, and provisions set out as notes under section 10301 and 10364 of Title 42]: “(1) Indian tribe.—The term ‘Indian Tribe’ has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304). “(2) Reclamation state.—The term ‘Reclamation State’ means a State or territory described in the first section of the Act of

June 17, 1902 (32 Stat. 388, chapter 1093; 43 U.S.C. 391). “(3) Secretary.—The term ‘Secretary’ means the Secretary of the Interior.” [The first paragraph of 43 U.S.C. 391 is comprised of act

June 17, 1902, ch. 1093, § 1 (part), 32 Stat. 388. The second paragraph of 43 U.S.C. 391 is comprised of act

June 12, 1906, ch. 3288, 34 Stat. 259, as amended. See Codification note under section 391 of Title 43, Public Lands.]

§2330c Aquatic Ecosystem Restoration

Summary

Title 33, §2330c

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

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Statutory Notes and Related Subsidiaries

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