43 U.S.C. § 2904: Eligibility criteria

Summary

The Secretary must make rules to decide when a facility can be transferred out of Federal control. Any potential recipient must agree to take the facility, keep using it for basically the same purposes as when the Secretary reviews the transfer, and pay into the reclamation fund an amount equal to the net present value of any repayment or other income the United States gets from that facility as of the transfer date. The Secretary must be able to make legal, institutional, and financial arrangements with the recipient and must find that the transfer won’t cause an unmitigated serious environmental harm, fits the Secretary’s Tribal trustee and treaty/compact duties, is financially in the United States’ interest, protects public uses like water rights for flood control or fish and wildlife, follows Federal and State law, and won’t harm existing water delivery obligations. If the facility is a dam or diversion that affects a listed threatened or endangered species or critical habitat, the Secretary must find that protections under the Endangered Species Act remain at least as strong as under Federal ownership and that the facility is not part of the Central Valley Project in California. Any land to be transferred must be land the Secretary acquired, or withdrawn land only if the Secretary writes that the withdrawal makes it unsuitable to return to the public domain and the recipient pays fair market value based on historical or existing uses. Transfers must not hurt applicable Federal power rates, repayment obligations, or other project power uses.

Title 43, §2904

Public Lands, Source: USLM XML via OLRC

(a)Establishment

The Secretary shall establish criteria for determining whether a facility is eligible for conveyance under this chapter.

(b)Minimum requirements

(1)Agreement of qualifying entity

The criteria established under subsection (a) shall include a requirement that a qualifying entity shall agree—

(A)to accept title to the eligible facility;

(B)to use the eligible facility for substantially the same purposes for which the eligible facility is being used at the time the Secretary evaluates the potential transfer; and

(C)to provide, as consideration for the assets to be conveyed, compensation to the reclamation fund established by section 391 of this title, in an amount that is the equivalent of the net present value of any repayment obligation to the United States or other income stream that the United States derives from the eligible facility to be transferred, as of the date of the transfer.

(2)Determinations of Secretary

The criteria established under subsection (a) shall include a requirement that the Secretary shall—

(A)be able to enter into an agreement with the qualifying entity with respect to the legal, institutional, and financial arrangements relating to the conveyance;

(B)determine that the proposed transfer—

(i)would not have an unmitigated significant effect on the environment;

(ii)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;

(iii)is in the financial interest of the United States;

(iv)protects the public aspects of the eligible facility, including water rights managed for public purposes, such as flood control or fish and wildlife;

(v)complies with all applicable Federal and State law; and

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

(C)if the eligible facility proposed to be transferred is a dam or diversion works (not including canals or other project features that receive or convey water from the diverting works) diverting water from a water body containing a species listed as a threatened species or an endangered species or critical habitat under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), determine that—

(i)the eligible facility continues to comply with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) in a manner that provides no less protection to the listed species as existed under Federal ownership; and

(ii)the eligible facility is not part of the Central Valley Project in the State of California.

(3)Status of reclamation land

The criteria established under subsection (a) shall require that any land to be conveyed out of Federal ownership under this chapter is—

(A)land acquired by the Secretary; or

(B)land withdrawn by the Secretary, only if—

(i)the Secretary determines in writing that the withdrawn land is encumbered by facilities to the extent that the withdrawn land is unsuitable for return to the public domain; and

(ii)the qualifying entity agrees to pay fair market value based on historical or existing uses for the withdrawn land to be conveyed.

(c)Hold harmless

No conveyance under this chapter shall adversely impact applicable Federal power rates, repayment obligations, or other project power uses.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Endangered Species Act of 1973, referred to in subsec. (b)(2)(C), 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.

§2904 Eligibility Criteria