43 U.S.C. § 390g–9: Aquifer recharge flexibility

Summary

Allows the Bureau of Reclamation to let people use extra space in federal water projects to recharge groundwater in Western states, as long as rules are followed. Key defined words: Bureau — the Bureau of Reclamation; Commissioner — the head of Reclamation; Eligible land — land that state law allows to get water and that shares an aquifer with a Reclamation project; Net water storage benefit — more water stored in aquifers that helps the project area or cuts overdraft; Reclamation facility — Bureau-owned water infrastructure at a project; Reclamation project — a federal irrigation or reclamation project. The program can be used for non-project water if it won’t hurt power or water contracts, fish, wildlife, or water quality, and if it follows federal and state laws and Bureau policies. A non-Federal party to an existing contract must agree before their capacity is used. Contracts in effect on December 27, 2020 that already allow such use are not changed. The Secretary may make or change contracts to let contractors use or transfer water for recharge if it’s needed, approved by the contractor who repays the facility costs, and it gives a net water storage benefit or helps recharge eligible land. Water can travel across BLM lands for recharge without new permission if the route isn’t changed. The law does not create or change any Federal or State water rights. It does not apply to the State of California. The Secretary may join state advisory groups that monitor recharge activities.

Title 43, §390g–9

Public Lands, Source: USLM XML via OLRC

(a)Short title

This section may be cited as the “Aquifer Recharge Flexibility Act”.

(b)Definitions

In this section: (1) Bureau

(2)Commissioner

The term “Commissioner” means the Commissioner of Reclamation.

(3)Eligible land (4) Net water storage benefit

The term “eligible land”, with respect to a Reclamation project, means land that—

(A)is authorized to receive water under State law; and

(B)shares an aquifer with land located in the service area of the Reclamation project.

(5)Reclamation facility

The term “Reclamation facility” means each of the infrastructure assets that are owned by the Bureau at a Reclamation project.

(6)Reclamation project

The term “Reclamation project” means any reclamation or irrigation project, including incidental features thereof, authorized by Federal reclamation law or the Act of August 11, 1939 (commonly known as the “Water Conservation and Utilization Act”) (53 Stat. 1418, chapter 717; 16 U.S.C. 590y et seq.), or constructed by the United States pursuant to such law, or in connection with which there is a repayment or water service contract executed by the United States pursuant to such law, or any project constructed by the Secretary through the Bureau for the reclamation of land.

(c)Flexibility to allow greater aquifer recharge in Western States

(1)Use of Reclamation facilities

(A)In general

The Commissioner may allow the use of excess capacity in Reclamation facilities for aquifer recharge of non-Reclamation project water, subject to applicable rates, charges, and public participation requirements, on the condition that—

(i)the use—

(I)shall not be implemented in a manner that is detrimental to—

(aa)any power service or water contract for the Reclamation project; or

(bb)any obligations for fish, wildlife, or water quality protection applicable to the Reclamation project;

(II)shall be consistent with water quality guidelines for the Reclamation project;

(III)shall comply with all applicable—

(aa)Federal laws; and

(bb)policies of the Bureau; and

(IV)shall comply with all applicable State laws and policies; and

(ii)the non-Federal party to an existing contract for water or water capacity in a Reclamation facility consents to the use of the Reclamation facility under this subsection.

(B)Effect on existing contracts

Nothing in this subsection affects a contract—

(i)in effect on December 27, 2020; and

(ii)under which the use of excess capacity in a Bureau conveyance facility for carriage of non-Reclamation project water for aquifer recharge is allowed.

(2)Aquifer recharge on eligible land (3) Conveyance for aquifer recharge purposes

(A)In general

Subject to subparagraphs (C) and (D), the Secretary may contract with a holder of a water service or repayment contract for a Reclamation project to allow the contractor, in accordance with applicable State laws and policies—

(i)to directly use water available under the contract for aquifer recharge on eligible land; or

(ii)to enter into an agreement with an individual or entity to transfer water available under the contract for aquifer recharge on eligible land.

(B)Authorized project use

The use of a Reclamation facility for aquifer recharge under subparagraph (A) shall be considered an authorized use for the Reclamation project if requested by a holder of a water service or repayment contract for the Reclamation facility.

(C)Modifications to contracts

The Secretary may contract with a holder of a water service or repayment contract for a Reclamation project under subparagraph (A) if the Secretary determines that a new contract or contract amendment described in that subparagraph is—

(i)necessary to allow for the use of water available under the contract for aquifer recharge under this subsection;

(ii)in the best interest of the Reclamation project and the United States; and

(iii)approved by the contractor that is responsible for repaying the cost of construction, operations, and maintenance of the facility that delivers the water under the contract.

(D)Requirements

The use of Reclamation facilities for the use or transfer of water for aquifer recharge under this subsection shall be subject to the requirements that—

(i)the use or transfer shall not be implemented in a manner that materially impacts any power service or water contract for the Reclamation project; and

(ii)before the use or transfer, the Secretary shall determine that the use or transfer—

(I)results in a net water storage benefit for the Reclamation project; or

(II)contributes to the recharge of an aquifer on eligible land; and

(iii)the use or transfer complies with all applicable—

(I)Federal laws and policies; and

(II)interstate water compacts.

(4)Effect

Nothing in this section creates, impairs, alters, or supersedes a Federal or State water right.

(5)Exemption

This section shall not apply to the State of California.

(6)Advisory group

The Secretary may participate in any State-led collaborative, multi-stakeholder advisory group created in any watershed the purpose of which is to monitor, review, and assess aquifer recharge activities.

Notes & Related Subsidiaries

References in Text

This section, referred to in subsecs. (b) and (c)(4), (5), was in the original “this Act”, which was translated as meaning section 1105 of Pub. L. 116–260, div. FF, title XI, Dec. 27, 2020, 134 Stat. 3237, to reflect the probable intent of Congress. Act of August 11, 1939, referred to in subsec. (b)(6), is act Aug. 11, 1939, ch. 717, 53 Stat. 1418, popularly known as the Water Conservation and Utilization Act, which is classified generally to subchapter II (§ 590y et seq.) of chapter 3C of Title 16, Conservation. For complete classification of this Act to the Code, see Tables. Definitions For definition of “Secretary” as used in this section, see section 1115 of div. FF of Pub. L. 116–260, set out as a note under section 2330c of Title 33, Navigation and Navigable Waters.

§390g–9 Aquifer Recharge Flexibility

Summary

Title 43, §390g–9

Notes & Related Subsidiaries

References in Text

Citations & Metadata