H.R. 1352 — Introduced in House

I 113th CONGRESS 1st Session H. R. 1352 IN THE HOUSE OF REPRESENTATIVES March 21, 2013 Mr. Grijalva introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To provide for the protection of the quality of water in the Lower Colorado River and the development and implementation of a comprehensive plan for the prevention and elimination of pollution in the Lower Colorado River and the maintenance of a healthy Lower Colorado River ecosystem. 1. Short title This Act may be cited as the Lower Colorado River Protection Act. 2. Table of contents The table of contents of this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings. Sec. 4. Declaration of goals. Sec. 5. Definitions. Title I—Plan Development Sec. 101. Lower Colorado River Management Conference. Sec. 102. Lower Colorado River protection program. Sec. 103. Environmental and pollution control research program. Sec. 104. Lower Colorado River pollution elimination and ecosystem restoration plan. Sec. 105. Report on the plan to Congress. Title II—Plan Implementation Sec. 201. Management. Sec. 202. Qualified projects. Sec. 203. Encouraging involvement of other programs. Sec. 204. Public information program. Sec. 205. Report. Sec. 206. Compliance with State and Federal law. 3. Findings The Congress finds the following: (1) Safe supplies of water are fundamental to the health, economy, security, and ecology of the United States. (2) Research, development, and implementation of means and methods to protect the quality of the water resources of the United States will help ensure the continued existence of safe water to support— (A) increasing populations; (B) economic growth; (C) irrigated agriculture and a safe food supply; and (D) the protection of aquatic ecosystems. (3) The Colorado River is a multifaceted resource of the United States because— (A) the Colorado River is a natural wonder, a national treasure, and the lifeblood of the Southwest as it provides drinking water for more than 25,000,000 people and irrigates 1,800,000 acres of land, watering 15 percent of United States crops and over 80 percent of winter vegetables consumed in the United States; (B) the Colorado River is a major water recreation destination for boaters, fishermen, skiers, swimmers, hikers, and others with the Grand Canyon receiving approximately 4,500,000 visitors per year, the Glen Canyon National Recreation Area receiving approximately 2,000,000 visitors per year, and Lake Mead National Recreation Area receiving approximately 8,000,000 visitors per year; and (C) the Colorado River and its tributaries form a unique habitat that supports many rare and unusual species, including 36 native fish species (not including 2 that have already gone extinct), of which 25 species are found only in the Colorado River and its tributaries, 11 species are classified as endangered, 4 species are classified as threatened, and 5 species are classified as sensitive. (4) The Colorado River is endangered because— (A) the habitat along the Colorado River has been altered by dams, diversions, habitat loss and degradation, chemical pollution, and nonnative plant and animal species (including 62 nonnative species of fish), such that it is no longer the warm, silt-laden, sometimes turbulent, and ecologically balanced home to which native species are adapted, which has reduced the populations and ranges of many native species; (B) male fish in Las Vegas Bay of Lake Mead have relatively high levels of endocrine disrupting compounds (EDCs), low levels of sex hormones, and shrunken testes associated with exposure to EDCs in effluent discharged into Las Vegas Wash and making its way into the lake, and this effluent will soon be directly discharged into Lake Mead instead of Las Vegas Wash; (C) the dangers of increasing levels of EDCs are exemplified by the condition of the San Francisco Bay Estuary, the source of drinking water for 25,000,000 Californians, where fish populations are crashing and young fish are born with brain, liver, and other deformities associated with high levels of environmental exposure to EDCs, which are making their way into people as evidenced by levels of the fire retardant polybrominated diphenyl ether reaching up to 100 times normal concentrations in the breast milk of Bay Area women; (D) nitrate pollution from degrading septic tanks presents a current and continuing threat to the health of the Lower Colorado River and the ecosystems and the health of the people that depend on it; (E) nitrate pollution also threatens the beneficial use of recreation along the Lower Colorado River because excess nitrates cause algal blooms, which die and decompose, deoxygenating the water and killing large numbers of fish; (F) run-off and return flows from agricultural lands into the Lower Colorado River and adjacent aquifers and waterways are rich in nitrates and sediment and high in salinity; (G) a number of chemicals in addition to nitrates are current or emerging threats to the Lower Colorado River, including uranium and other uranium mining by-products, selenium, hexavalent chromium, perchlorate, mercury, EDCs, pharmaceuticals, and personal care products; (H) known chemical and radioactive threats to the river include a 100-foot high, 130 acre, 10.5 million ton pile of uranium mill tailings located 750 feet from the river near Moab, Utah, and being remediated by the Department of Energy; (I) thousands of new mining claims, mostly for uranium, on Federal lands adjacent to the Grand Canyon are an emerging threat to the Colorado River; (J) known chemical threats to the river include 2 plumes of perchlorate rocket fuel near Henderson, Nevada, now being voluntarily remediated by the land owners, but previously making its way into lettuce grown over 200 miles away near Yuma, Arizona; (K) known chemical threats to the river include 2 plumes of hexavalent chromium near Topock, California, and Lake Havasu City, Arizona, being voluntarily remediated by the land owners; (L) quagga mussels, tamarisk, and other invasive species are disrupting ecosystems and threatening infrastructure and water quality in the Lower Colorado River; and (M) other types of contaminants and sources of pollution are a present danger to the Lower Colorado River, including pathogens, stormwater run-off, and salinity. (5) Demands on and needs of the Colorado River that are increasing stresses on the ecosystems and water resources of the Lower Colorado River are increasing because— (A) the population of California is projected to increase from 39,000,000 in 2010 to almost 60,000,000 in 2050, and the population of Arizona is projected to increase from 7,000,000 in 2010 to almost 13,000,000 in 2050; (B) population along the Lower Colorado River is expected to grow from its current 290,000 to 480,000 by 2025; (C) more than $2 billion is needed by 2025 to build the wastewater treatment plants necessary to ameliorate the danger to the Lower Colorado River from septic tanks; and (D) according to the most recent Intergovernmental Panel on Climate Change report, the average annual temperature will increase by over 6 degrees Fahrenheit and annual run-off will decrease by 20 percent or more over much of the Lower Colorado River Basin by the end of the century. 4. Declaration of goals The goals of this Act are as follows: (1) To restore and maintain the ecosystems and the chemical, biological, and physical integrity of the waters of the Lower Colorado River to attain water quality that— (A) provides for the protection and propagation of plants, fish, shellfish, wildlife, and a balanced population of natural, safe microorganisms; (B) provides for recreation in and on the water; and (C) protects the health of the millions of citizens of the United States who drink the water of the Lower Colorado River and eat the produce grown with water withdrawn from the Lower Colorado River. (2) To reduce the discharge of toxic pollutants into the Lower Colorado River to below toxic amounts and to remediate existing sources of toxic pollutants. (3) To develop and implement programs in an expeditious manner for the control of nonpoint sources of pollution to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution. (4) To complete research and development based on science and engineering to enable the goals of this Act to be met. (5) To empower the Environmental Protection Agency to take the lead in the effort to meet these goals, working with other Federal agencies and State and local authorities. 5. Definitions For the purposes of this Act, the following definitions apply: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Agency The term Agency means the Environmental Protection Agency. (3) CRRSCo The term CRRSCo means the Colorado River Regional Sewer Coalition, an Arizona nonprofit corporation whose members are cities, towns, counties, Indian tribes, and political subdivisions in the Lower Colorado River Basin which have the financial and management responsibilities for the provision of wastewater services within their jurisdictions. (4) Federal agencies The term Federal agencies includes the Environmental Protection Agency, the Department of the Interior (including the Bureau of Reclamation, the United States Fish and Wildlife Service, the Bureau of Land Management, the National Park Service, and the United States Geological Survey), the Army Corps of Engineers, the Department of Commerce (including the National Marine Fisheries Service), the Department of Agriculture (including the Natural Resources Conservation Service and the Forest Service), and the Western Area Power Administration. (5) Federally recognized Indian tribes The term federally recognized Indian tribes means— (A) the Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; (B) the Chemehuevi Indian Tribe of the Chemehuevi Reservation, California; (C) the Fort Mohave Indian Tribe of Arizona, California, and Nevada; (D) the Quechan Tribe of the Fort Yuma Indian Reservation; and (E) the Cocopah Tribe of Arizona. (6) Lower Colorado River The term Lower Colorado River means that portion of the Colorado River downstream from Lees Ferry, as defined in the Colorado River Compact of 1922, and within the United States. (7) Lower Colorado River Basin The term Lower Colorado River Basin means the geographic areas in the States of Arizona, California, and Nevada that are hydrologically connected to the mainstem of the Lower Colorado River. (8) Management Conference The term Management Conference means the Lower Colorado River Management Conference established in section 101. (9) Plan The term Plan means the Lower Colorado River Pollution Elimination and Ecosystem Restoration Plan described in section 104; (10) Program The term Program means the Lower Colorado River Protection Program established in section 102. (11) Qualified Project The term qualified project means a project to be carried out in the Lower Colorado River Basin that— (A) monitors or evaluates the release or discharge of pollutants in the Lower Colorado River Basin; or (B) prevents, reduces, or eliminates pollution in the Lower Colorado River or restores or maintains the ecosystem health of the Lower Colorado River in accordance with the Plan; and (C) does not include the purchase of water for the purpose of flow regulation in the Lower Colorado River or its tributaries. I Plan Development 101. Lower Colorado River Management Conference (a) Establishment There is established a Lower Colorado River Management Conference to develop the Lower Colorado River Pollution Elimination and Ecosystem Restoration Plan. (b) Membership The members of the Management Conference shall be comprised of the following: (1) The Governors of the States of California, Arizona, and Nevada or their designees. (2) 1 representative from each of the following Federal agencies: (A) The Agency. (B) The Bureau of Reclamation. (C) The Western Area Power Administration. (D) The National Park Service. (E) The United States Fish and Wildlife Service. (F) The United States Geological Survey. (3) The chairperson of CRRSCo. (4) 5 members of the board of directors of CRRSCo that represent local governments, federally recognized Indian tribes, and sewer districts within the Lower Colorado River Basin, chosen by the board of directors of the CRRSCo. (5) 1 person representing any federally recognized Indian tribe that is not represented on the board of directors of CRRSCo. (6) Not more than a total of 18 representatives appointed by the Governors of the States of California, Arizona, and Nevada, comprised of the following: (A) 1 person representing each of the State environmental protection agencies of Arizona, California, and Nevada, for a total of 3 representatives. (B) 1 person representing each of the State water resources agencies of Arizona, California, and Nevada, for a total of 3 representatives. (C) Not more than 6 representatives of local governments having jurisdiction over any land or water within the Lower Colorado River Basin and that are not represented on the board of directors of CRRSCo. (D) 2 persons representing affected industries. (E) 2 persons representing nongovernmental organizations. (F) 2 persons representing the general public. (7) 1 person representing the Colorado River Energy Distributors Association. (8) 1 person representing the Colorado River Commission of Nevada. (9) 1 person representing the Colorado River Water Users Association. (c) Technical advisory committee Not later than 120 days after the date of enactment of this Act, the Management Conference shall appoint a Technical Advisory Committee consisting of officials of Federal agencies, the State governments of Arizona, California, and Nevada, the governments of political subdivisions of such States, and private research institutions to ensure the input of the technical expertise of those agencies and authorities in developing and implementing the Plan. 102. Lower Colorado River protection program (a) Establishment The Lower Colorado River Protection Program is hereby established within the Agency Region 9 office. (b) Director; staff The Program shall be headed by a Director and shall be staffed by not less than 2 persons in addition to the Director. (c) Purpose The Program shall provide staff and support services to the Management Conference and the Technical Advisory Committee. 103. Environmental and pollution control research program (a) Research program (1) Establishment The Administrator, acting through the Director of the Program, shall establish a multidisciplinary environmental research program for the Lower Colorado River. (2) Grants (A) In general For the purposes of carrying out this subsection, the Administrator may make grants to State water pollution control agencies, other public or nonprofit agencies, institutions, organizations, and individuals to conduct environmental and pollution control projects in the Lower Colorado River Basin. (B) Limitations (i) Amount for less than 45 percent cost share The amount of any such grant for which the non-Federal contribution to the total project cost is less than 45 percent may not exceed $50,000 per year. (ii) Other The amount of any such grant for which the non-Federal contribution to the total project cost is 45 percent or more may not exceed $100,000 per year. (iii) In-kind contributions The value of in-kind contributions may be included in the calculation of non-Federal contributions to project costs. (b) Priority In selecting projects to carry out the program established under subsection (a), the Administrator shall give priority to a project that meets one or more of the following: (1) Monitors emerging pollution problems that pose a potentially high level of risk to human health in the judgment of the Administrator or studies methods of remediating such problems in the Lower Colorado River. Projects can address emerging pollution problems in the Upper Colorado River that might reasonably be expected to pose a threat to the Lower Colorado River. (2) Monitors contamination by or studies methods of remediating contamination by pharmaceutical and personal care products and endocrine disrupting compounds in the Lower Colorado River, the effects of these compounds on the ecosystem of the Lower Colorado River, and the risk to human health due the presence of these contaminants in the Lower Colorado River. (3) Evaluates the effect of, or studies methods of preventing, reducing, or eliminating, nonpoint source pollution, including increased sedimentation, due to enhanced stormwater run-off created by human disturbance of the natural landscape, including from agricultural activities, mining activities, construction activities, and man-made impermeable surfaces. (4) Monitors the distribution of, or studies means of reducing or eliminating, quagga mussels in the Lower Colorado River or any other organism or pollutant that threatens infrastructure in and along the Lower Colorado River. (5) Uses an innovative approach, technique, or technology that may provide greater environmental benefits or equivalent environmental benefits at a reduced cost. 104. Lower Colorado River pollution elimination and ecosystem restoration plan (a) In general Not later than 2 years after the date of enactment of this Act, the Management Conference shall publish the Lower Colorado River Pollution Elimination and Ecosystem Restoration Plan, which shall be a comprehensive pollution prevention, reduction, elimination, and ecosystem restoration plan for the Lower Colorado River. (b) Contents The Plan shall— (1) identify corrective actions and compliance schedules addressing point and nonpoint sources of nitrate pollution and other pollution necessary to maintain the chemical, physical, and biological integrity of water quality; (2) incorporate environmental management concepts and programs established in State and Federal plans and programs in effect at the time of the development of the Plan; (3) clarify the duties of Federal and State agencies in pollution prevention and control activities; (4) describe the methods and schedules for funding of programs, activities, and projects identified in the Plan, including the use of Federal funds and other sources of funds; (5) include a strategy for pollution prevention and management practices to reduce the amount of pollution generated in the Lower Colorado River Basin and maintain the ecosystem health of the Lower Colorado River; and (6) be reviewed and revised, as necessary, at least once every 5 years in consultation with the Administrator and other appropriate Federal agencies. (c) Public review (1) In general The Administrator, in cooperation with the Management Conference, shall provide for public review and comment on the draft Plan. (2) Public meetings At a minimum, the Management Conference shall conduct 1 public meeting in each of Arizona, California, and Nevada to hear comments on the draft Plan. (d) Approval or disapproval of the plan (1) Deadline (A) In general Not later than 120 days after the publication of the Plan, the Administrator shall either approve or disapprove the Plan. (B) Portion The Administrator may approve a portion of the Plan under this paragraph. (C) Considered approved If the Administrator does not disapprove the Plan or a portion thereof within the 120-day period, the Plan or portion thereof shall be considered approved for the purposes of this subsection. (2) Procedure for disapproval If, after notice and opportunity for public comment and consultation with the appropriate Federal and State agencies and other interested persons, the Administrator determines that— (A) the Plan or any portion thereof does not meet the requirements of subsection (b) or is not likely to satisfy, in whole or in part, the goals and requirements of this Act; (B) adequate authority does not exist or adequate resources are not available to implement the Plan or portion thereof; (C) the schedule for implementing the Plan or portion thereof is not sufficiently expeditious; or (D) the practices and measures proposed in the Plan or portion thereof are not adequate to prevent, reduce, or eliminate pollution in the Lower Colorado River or restore the ecosystem of the Lower Colorado River in whole or in part; then the Administrator shall within 120 days of the publication of the Plan notify the Management Conference of any revisions or modifications necessary to obtain approval. The Management Conference shall have an additional 90 days to submit its revised Plan, and the Administrator shall approve or disapprove such revised Plan within 90 days after receipt. (e) Grant assistance for support of plan development (1) In general The Administrator may, in consultation with the Management Conference, make grants to State, interstate, and regional water pollution control agencies, federally recognized Indian tribes, local governments, and public or nonprofit agencies, institutions, and organizations for assisting with research, surveys, studies, modeling, and technical and supporting work necessary for the development of the Plan. (2) Restriction Only proposals whose work product can reasonably be expected to contribute directly to the development of the Plan may be funded under this section. (3) Cost-sharing The amount of grants made under this section for a fiscal year shall not exceed 65 percent of the costs of such research, survey, study, modeling, and technical and supporting work and shall be made available on the condition that the non-Federal share of the costs of such research, survey, study, modeling, and technical and supporting work may include the value of in-kind services contributed at any time after January 1, 2004, by a non-Federal sponsor. (4) Administration The Administrator may establish such requirements for the administration of grants as the Administrator determines appropriate. 105. Report on the plan to Congress Within 60 days after approval of the Plan, the Administrator shall submit to Congress a copy of the Plan and a comprehensive report that describes the activities of the Management Conference and the cost of the development and approval of the Plan. II Plan Implementation 201. Management (a) Coordination After approval of the Plan, the Director of the Program shall— (1) in cooperation with CRRSCo and the appropriate Federal, State, local, and tribal agencies, develop and carry out qualified projects to implement the Plan; (2) track schedules, finances, and performance of the implementation of the Plan; (3) provide multiagency oversight and coordination of Lower Colorado River protection activities to ensure balance and integration in the implementation of the Plan; (4) coordinate actions of the Program with the actions of other Federal agencies, State agencies, tribal agencies, and local governments to ensure the input of those agencies and governments in developing and implementing water quality strategies and to obtain the support of such agencies and governments in achieving the objectives of the Plan; (5) develop interagency cross-cut budgets and a comprehensive finance plan to allocate costs; and (6) develop annual reports. (b) Public participation In implementing the Plan, the Director of the Program shall coordinate with Federal, State, and tribal agencies, local governments, and the public to seek input on program elements such as planning, design, technical assistance, and development of peer review science programs. (c) Science In implementing the Plan, the Director of the Program shall seek to ensure, to the maximum extent practicable, that all major aspects of implementing the Plan are subjected to credible and objective scientific review and that major decisions are based upon the best available scientific information. 202. Qualified projects (a) Authority The Administrator, acting through the Director of the Program, may carry out qualified projects in accordance with priorities set by the Administrator in accordance with this Act. (b) Priority In selecting qualified projects to carry out under this Act, the Administrator shall give priority to a qualified project that— (1) addresses pollution problems that pose a potentially high level of risk to human health in the judgment of the Administrator; (2) has been identified in the Plan and is ready to be implemented; or (3) will use an innovative approach, technology, or technique that may provide greater environmental benefit or equivalent environmental benefit at reduced cost. (c) Limitation The Administrator may not carry out a project under this section if— (1) an evaluation of alternatives for the area of concern has not been conducted, including a review of the short-term and long-term effects of the alternatives on human health and the environment; or (2) the Administrator determines that the area of concern is likely to suffer increased contamination from existing sources of pollutants following the completion of the project. (d) Non-Federal cost share (1) Non-federal cost share The non-Federal share of the cost of a qualified project carried out under this section shall be not less than 45 percent. (2) Ability to pay Notwithstanding paragraph (1), the Administrator may reduce the non-Federal share of the cost of a qualified project carried out under this section to not less than 35 percent based on a determination by the Administrator that a non-Federal interest is unable to pay. The determination of inability to pay shall not affect the requirements of paragraph (4). In making such a determination, the Administrator— (A) shall consider— (i) per capita income data for the appropriate political division or divisions in which the project is to be located; and (ii) the per capita non-Federal cost of construction of the project for the appropriate political division or divisions in which the project is to be located; and (B) may consider additional criteria relating to the non-Federal interest’s financial ability to carry out its cost-sharing responsibilities, to the extent that the application of such criteria does not eliminate areas from eligibility for a reduction in the non-Federal share. (3) In-kind contributions The non-Federal share of the cost of a qualified project carried out under this section may include the value of in-kind services contributed at any time after January 1, 2001, by a non-Federal sponsor, including any in-kind service performed under an administrative order on consent or judicial consent decree, but not including any in-kind services performed under a unilateral administrative order or court order. (4) Operation and maintenance (A) In general The non-Federal share of the cost of the operation and maintenance of a qualified project carried out under this section shall be 100 percent. (B) Agreements The Administrator may require the appropriate non-Federal interests to enter into such agreements as the Administrator deems necessary to ensure the proper operation and maintenance of any qualified project, and the Administrator may not carry out any qualified project for which the appropriate non-Federal interests have not demonstrated to the satisfaction of the Administrator that they possess the resources for proper operation and maintenance of the qualified project. (e) Maintenance of effort The Administrator may not carry out a qualified project under this section unless the non-Federal sponsor enters into such agreements with the Administrator as the Administrator may require to ensure that the non-Federal sponsor will maintain its aggregate expenditures from all other sources for programs that will help achieve the goals of this Act in the area of concern in which the qualified project is located at or above the average level of such expenditures in its 2 fiscal years preceding the date on which the project is initiated. (f) Coordination In carrying out a qualified project under this section, the Administrator shall coordinate with the Secretary of the Interior, the Secretary of the Army, and with the Governors of States in which projects are located to ensure that Federal and State assistance for the prevention, reduction, and elimination of pollution in areas of concern is used as efficiently as possible. 203. Encouraging involvement of other programs (a) Maximizing program benefits In order to maximize the amount of pollution prevention, elimination, and ecosystem restoration in the Lower Colorado River Basin, the Administrator is directed, through the Program, to develop a list of pre-existing Federal programs that are authorized to conduct projects that fit the requirements to be considered qualified projects under this Act and to work with the agencies, departments, and offices responsible for such Federal programs to avoid committing resources authorized under this Act to projects if other programs will implement them. (b) Title XVI eligibility (1) Authority authorization The Reclamation Wastewater and Groundwater Study and Facilities Act (43 U.S.C. 390h et seq.; Public Law 102–575) is amended by adding at the end the following: 1658. Lower Colorado River water quality protection projects (a) In general The Secretary, in cooperation with the Colorado River Regional Sewer Coalition or other regional or local entities, shall participate in the planning, design, and construction of systems for the treatment of municipal wastewater. (b) Cost share The Federal share of the cost of the project authorized by this section shall not exceed 25 percent of the total cost of the project. (c) In-Kind contributions The non-Federal share of the cost of a project carried out under this subsection may include the value of in-kind services contributed at any time after January 1, 2001, by a non-Federal sponsor, including any in-kind service performed under an administrative order on consent or judicial consent decree, but not including any in-kind services performed under a unilateral administrative order or court order. (d) Authorization of appropriations There is authorized to be appropriated to carry out this section $20,000,000 to remain available until expended. . (2) Clerical amendment The table of sections in section 2 of the Reclamation Projects Authorization and Adjustment Act of 1992 is amended by inserting after the item relating to section 1657 the following: Sec. 1658. Lower Colorado River water quality protection projects. . 204. Public information program The Administrator, acting through the Director of the Program and in coordination with States, federally recognized Indian tribes, local governments, and other entities, shall carry out a public information program to provide information relating to the Plan and its implementation. 205. Report Not later than December 31, 2013, and annually thereafter, the Administrator shall submit to Congress a comprehensive report that describes the costs, accomplishments, and outcomes of the activities carried out in the implementation of the Plan. The report shall include a list of rejected project proposals with explanations for their rejection. 206. Compliance with State and Federal law Nothing in this Act preempts the authority of any Federal or State agency, under any State or Federal law, to prevent, reduce, or eliminate pollution in the Lower Colorado River or to restore or maintain the ecosystem health of the Lower Colorado River or the authority of a Federal agency that is being used or may be used to apportion, release, and deliver Lower Colorado River water.