WATER MANAGEMENT IMPROVEMENT.

SEC. 207. WATER MANAGEMENT IMPROVEMENT. (a) Purposes.—The purposes of this section are, through such means as are cost-effective and environmentally sound, to— (1) encourage the conservation and wise use of water; 106 STAT. 4617 (2) reduce the probability and duration of periods necessitating extraordinary curtailment of water use; (3) achieve beneficial reductions in water use and system costs; (4) prevent or eliminate unnecessary depletion of waters in order to assist in the improvement and maintenance of water quantity, quality, and streamflow conditions necessary to augment water supplies and support fish, wildlife, recreation, and other public benefits; (5) make prudent and efficient use of currently available water prior to any importation of Bear River water into Salt Lake County, Utah; and (6) provide a systematic approach to the accomplishment of these purposes and an objective basis for measuring their achievement. (b) Water Management Improvement Plan.—The District, after consultation with the State and with each petitioner of project water, shall prepare and maintain a water management improvement plan. The first plan shall be submitted to the Secretary by January 1, 1995. Every three years thereafter the District shall prepare and submit a supplement to this plan. The Secretary shall either approve or disapprove such plan or supplement thereto within six months of its submission. (1) Elements.— The plan shall include the following elements: (A) A water conservation goal, consisting of the greater of the following two amounts for each petitioner of project water: (i) 25 percent of each petitioner’s projected increase in annual water deliveries between the years 1990 and 2000, or such later ten-year period as the District may find useful for planning purposes; or (ii) the amount by which unaccounted for water or, in the case of irrigation entities, transport losses, exceeds 10 percent of recorded annual water deliveries. The minimum goal for the District shall be thirty thousand acre-feet per year. In the event that the pipeline conveyance system described in section 202(a)(1)(A) is not constructed due to expiration of the authorization pursuant to section 202(a)(1)(B), the minimum goal for the District shall be reduced by five thousand acre-feet per year. In the event that the Wasatch County Water Efficiency Project authorized in section 202(a)(3)(B) is not constructed due to expiration of the authorization pursuant to section 202(a)(3)(D), the minimum goal for the District shall be reduced by five thousand acre-feet per year. In the event the water supply which would have been supplied by the pipeline conveyance system described in section 202(a)(1)(A) is made available and delivered to municipal and industrial or agricultural petitioners in Salt Lake, Utah or Juab counties subsequent to the expiration of the authorization pursuant to section 202(a)(1)(B), the minimum goal for the District shall increase five thousand acre-feet per year. In no event shall the minimum goal for the District be less than twenty thousand acre-feet per year. (B) A water management improvement inventory, containing— 106 STAT. 4618 (i) conservation measures to improve the efficiency of the storage, conveyance, distribution, and use of water in a manner that contributes to the accomplishment of the purposes of this section, exclusive of any measures promulgated pursuant to subsection (f)(2) (A) through (D); (ii) the estimated economic and financial costs of each such measure; (iii) the estimated water yield of each such measure; and (iv) the socioeconomic and environmental effects of each such measure. (C) A comparative analysis of each cost-effective and environmentally acceptable measure. (D) A schedule of implementation for the following five years. (E) An assessment of the performance of previously implemented conservation measures, if any. Each plan or plan supplement shall be technically sound, internally consistent and supported by objective analysis. Not less than ninety days prior to its transmittal to the Secretary, the plan, or plan supplement, together with all supporting documentation demonstrating compliance with this section, shall be made available by the District for public review, hearing, and comment. All significant comments, and the District’s response thereto, shall accompany the plan transmitted to the Secretary. (2) Evaluation of conservation measures.— (A) Any conservation measure proposed to the District by the Executive Director of the Utah Department of Natural Resources shall be added to the water management improvement inventory and evaluated by the District. Any conservation measure, up to a cumulative five in number within any three-year period, submitted by nonprofit sportsmen or environmental organizations shall be added to the water management improvement inventory and evaluated by the District. (B) Each conservation measure that is found to be cost-effective, without significant adverse impact to the financial integrity of the District or a petitioner of project water, environmentally acceptable and for which the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) have been satisfied, and in the public interest shall be deemed to constitute the “active inventory”. For purposes of this section, the determination of benefits shall take into account: (i) the value of saved water, to be determined, in the case of municipal water, on the basis of the project municipal and industrial repayment obligation of the District, but in no case less than $200 per acre-foot, and, in the case of irrigation water, on the basis of operation, maintenance, and replacement costs plus the “full cost” rate for irrigation computed in accordance with section 302(3) of the Reclamation Reform Act of 1982 (96 Stat. 1263; 43 U.S.C. 390bb), but in no case less than $50 per acre-foot; 106 STAT. 4619 (ii) the reduced cost of wastewater treatment, if any; (iii) net additional hydroelectric power generation, if any, valued at avoided cost; (iv) net savings in operation, maintenance, and replacement costs; and (v) net savings in on-farm costs. (3) Implementation.— The District, and each petitioner of project water, as appropriate, shall implement and maintain, consistent with State law, conservation measures placed in the active inventory to the maximum practical extent necessary to achieve 50 percent of the water conservation goal within seven years after submission of the initial plan and 100 percent of the water conservation goal within fifteen years after submission of the initial plan. Priority shall be given to implementation of the most cost-effective measures that are— (A) found to reduce consumptive use of water without significant adverse impact to the financial integrity of the District or the petitioner of project water; (B) environmentally acceptable and for which the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been satisfied; and (C) found to be in the public interest. (4) Use of saved water.—All water saved by any conservation measure implemented by the District or a petitioner of project water under subsection (b)(3) may be retained by the District or the petitioner of project water which saved such water for its own use or disposition. The specific amounts of water saved by any conservation measure implemented under subsection (b)(3) shall be based upon the determination of yield under paragraph (b)(I)(B)(iii), and as may be confirmed or modified by assessment pursuant to paragraph (b)(I)(E). Each petitioner of project water may make available to the District water in an amount equivalent to the water saved, which the District may make available to the Secretary for instream flows in addition to the stream flow requirements established by section 303. Such instream flows shall be released from project facilities, subject to space available in project conveyance systems, to at least one watercourse in the Bonneville and Uinta River Basins, respectively, to be designated by the United States Fish and Wildlife Service as recommended by the Interagency Biological Assessment Team. Such flows shall be protected against appropriation in the same manner as the minimum streamflow requirements established by section 303. The Secretary shall reduce the annual contractual repayment obligation of the District equal to the project rate for delivered water, including operation and maintenance expenses, for water saved for instream flows pursuant to this subsection. The District shall credit or rebate to each petitioner of project water its proportionate share of the District’s repayment savings for reductions in deliveries of project water as a result of this subsection. (5) Status report on the planning process.—Prior to January 1, 1994, the District shall establish a continuous process for the identification, evaluation, and implementation of water conservation measures to achieve the purposes of this section, and submit a report thereon to the Secretary. The 106 STAT. 4620report shall include a description of this process, including its financial resources, technical support, public involvement, and identification of staff responsible for its development and implementation. (c) Water Conservation Pricing Study.— (1) Within three years from the date of enactment of this Act, the District, after consultation with the State and each petitioner of project water, shall prepare and transmit to the Secretary a study of wholesale and retail pricing to encourage water conservation as described in this subsection, together with its conclusions and recommendations. (2) The purposes of this study are— (A) to design and evaluate potential rate designs and pricing policies for water supply and wastewater treatment within the District boundary; (B) to estimate demand elasticity for each of the principal categories of end use of water within the District boundary; (C) to quantify monthly water savings estimated to result from the various designs and policies to be evaluated; and (D) to identify a water pricing system that reflects the incremental scarcity value of water and rewards effective water conservation programs. (3) Pricing policies to be evaluated in the study shall include but not be limited to the following, alone and m combination: (A) recovery of all costs, including a reasonable return on investment, through water and wastewater service charges; (B) seasonal rate differentials; (C) drought year surcharges; (D) increasing block rate schedules; (E) marginal cost pricing; (F) rates accounting for differences in costs based upon point of delivery; and (G) rates based on the effect of phasing out the collection of ad valorem property taxes by the District and the petitioners of project water over a five-year and ten-year period. The District may incorporate policies developed by the study in the Water Management Improvement Plan prepared under subsection (b). (4) Not less than ninety days prior to its transmittal to the Secretary, the study, together with the District’s preliminary conclusions and recommendations and all supporting documentation, shall be available for public review and comment, including public hearings. All significant comments, and the District’s response thereto, shall accompany the study transmitted to the Secretary. (5) Nothing in this subsection shall be deemed to authorize the Secretary, or grant new authority to the District or petitioners of project water, to require the implementation of any policies or recommendations contained in the study. (d) Study of Coordinated Operations.— (1) Within three years from the date of enactment of this Act, the District, after consultation with the State and each 106 STAT. 4621 petitioner of project water, shall prepare and transmit to the Secretary a study of the coordinated operation of independent municipal and industrial and irrigation water systems, together with its conclusions and recommendations. The District shall evaluate cost-effective flexible operating procedures that will— (A) improve the availability and reliability of water supply; (B) coordinate the timing of reservoir releases under existing water rights to improve instream flows for fisheries, wildlife, recreation, and other environmental values, if possible; (C) assist in managing drought emergencies by making more efficient use of facilities; (D) encourage the maintenance of existing wells and other facilities which may be placed on stand-by status when water deliveries from the project become available; (E) allow for the development, protection, and sustainable use of ground-water resources in the District boundary; (F) not reduce the benefits that would be generated in the absence of the joint operating procedures; and (G) integrate management of surface and ground-water supplies and storage capability. The District may incorporate measures developed by the study in the Water Management Improvement Plan prepared under subsection (b). (2) Not less than ninety days prior to its transmittal to the Secretary, the study, together with the District’s preliminary conclusions and recommendations and all supporting documentation, shall be available for public review and comment, including public hearings. All significant comments, and the District’s response thereto, shall accompany the study transmitted to the Secretary. (3) Nothing in this subsection shall be deemed to authorize the Secretary, or grant new authority to the District or petitioners of project water, to require the implementation of any operating procedures, conclusions, or recommendations contained in the study. (e) Authorization of Appropriations.— (1) For an amount not to exceed 50 percent of the cost of conducting the studies identified in subsections (c) and (d) and developing the plan identified in subsection (b), $3,000,000 shall be available from the amount authorized to be appropriated by section 201, and shall remain available until expended. The Federal share shall be allocated among project purposes in the same proportions as the joint costs of the Strawberry Collection System, and shall be repaid in the manner of repayment for each such purpose. (2) For an amount not to exceed 65 percent of the cost of implementation of the conservation measures in accordance with subsection (b), $50,000,000 shall be available from the amount authorized to be appropriated in section 201, and shall remain available until expended. $10,000,000 authorized by this paragraph shall be made available for conservation measures in Wasatch County identified in the study pursuant to section 202(a)(3)(A) which measures satisfy the requirements of subsection (b)(2)(B) and shall thereafter be available for the purposes of this paragraph. The Federal share shall be allocated between the purposes of municipal and industrial water supply and irrigation, as appro-106 STAT. 4622priate, and shall be repaid in the manner of repayment for each such purpose. (f) Utah Water Conservation Advisory Board.— (1) Within two years of the date of enactment of this Act, the Governor of the State may establish a board consisting of nine members to be known as the Utah Water Conservation Advisory Board, with the duties described in this subsection. In the event that the Governor does not establish said board by such date, the Secretary shall establish a Utah Water Conservation Advisory Board consisting of nine members appointed by the Secretary from a list of names supplied by the Governor. (2) The Board shall recommend water conservation standards and regulations for promulgation by State or local authorities in the service area of each petitioner of project water, including but not limited to the following: (A) metering or measuring of water to all customers, to be accomplished within five years. (For purposes of this paragraph, residential buildings of more than four units may be considered as single customers.); (B) elimination of declining block rate schedules from any system of water or wastewater treatment charges; (C) a program of leak detection and repair that provides for the inspection of all conveyance and distribution mains, and the performance of repairs, at intervals of three years or less; (D) low consumption performance standards applicable to the sale and installation of plumbing fixtures and fittings in new construction; (E) requirements for the recycling and reuse of water by all newly constructed commercial laundries and vehicle wash facilities; (F) requirements for soil preparation prior to the installation or seeding of turf grass in new residential and commercial construction; (G) requirements for the insulation of hot water pipes in all new construction; (H) requirements for the installation of water recycling or reuse systems on any newly installed commercial and industrial water-operative air conditioning and refrigeration systems; (I) standards governing the sale, installation, and removal of self-regenerating water softeners, including the identification of public water supply system service areas where such devices are prohibited, and the establishment of standards for the control of regeneration in all newly installed devices; and (J) elimination of evaporation as a principal method of wastewater treatment. (3) Any water conserved by implementation of subparagraphs (A), (B), (C), (D), or (F) of paragraph (2) shall not be credited to the conservation goal specified under subparagraph (b)(1)(A). All other water conserved after January 1, 1992, by a conservation measure which is placed on the active inventory shall be credited to the conservation goal specified under subparagraph (b)(1)(A). (4) The Governor may waive the applicability of paragraphs (2)(D) through (2)(H) above to any petitioner of project water that provides water entirely for irrigation use. (5) Within three years of the date of enactment of this Act, the board shall transmit to the Governor and the Secretary the 106 STAT. 4623 recommended standards and regulations referred to in subparagraph (f)(2) in such form as, in the judgment of the board, will be most likely to be promulgated within four years of the date of enactment of this Act, and the failure of the board to do so shall be deemed substantial noncompliance. (6) Nothing in this subsection shall be deemed to authorize the Secretary, or grant new authority to the District or petitioners of project water, to require the implementation of any standards or regulations recommended by the Utah Water Conservation Advisory Board. (g) Compliance.— (1) Notwithstanding subsections (c)(5), (d)(3) or (f)(6), if the Secretary after ninety days written notice to the District, determines that the plan referred to in subsection (b) has not been developed and implemented or the studies referred to in subsections (c) and (d) have not been completed or transmitted as provided for in this section, the District shall pay a surcharge for each year of substantial noncompliance as determined by the Secretary. The amount of the surcharge shall be— (A) for the first year of substantial noncompliance, five percent of the District’s annual Bonneville Unit repayment obligation to the Secretary; (B) for the second year of substantial noncompliance, ten percent of the District’s annual Bonneville Unit repayment obligation to the Secretary; and (C) for the third year of substantial noncompliance and any succeeding year of substantial noncompliance, fifteen percent of the District’s annual Bonneville Unit repayment obligation to the Secretary. (2) If the Secretary determines that compliance has been accomplished within twelve months after the first determination of substantial noncompliance, the Secretary shall refund 100 percent of the surcharge levied. (h) Reclamation Reform Act of 1982.—Compliance with this section shall be deemed as compliance with section 210 of the Reclamation Reform Act of 1982 (96 Stat. 1268; 43 U.S.C. 390jj) by the District and each petitioner of project water. (i) Judicial Review.— (1) For the purposes of sections 701 through 706 of title 5 (U.S.C.), the determinations made by the Secretary under subsections (b), (f)(1) or (g) shall be final actions subject to judicial review. (2) The record upon review of such final actions shall be limited to the administrative record compiled in accordance with sections 701 through 706 of title 5 (U.S.C.). Nothing in this subsection shall be construed to require a hearing pursuant to sections 554, 556, or 557 of title 5 (U.S.C.). (3) Nothing in this subsection shall be construed to preclude judicial review of other final actions and decisions by the Secretary. (j) Citizen Suits.— (1) In General.—Any person may commence a civil suit on their own behalf against only the Secretary for any determination made by the Secretary under this section which is alleged to have violated, is violating, or is about to violate any provision of this section or determination made under this section. (2) Jurisdiction and Venue.—The district courts shall have jurisdiction to prohibit any violation by the Secretary of this section, to compel any action required by this section, and to issue any other order to further the purposes of this section. An action under 106 STAT. 4624this subsection may be brought in the judicial district where the alleged violation occurred or is about to occur, where fish, wildlife, or recreation resources are located, or in the District of Columbia. (3) Limitations.— (A) No action may be commenced under paragraph (1) before sixty days after written notice of the violation has been given to the Secretary. (B) Notwithstanding subparagraph (A), an action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing a significant risk to the well-being of any species of fish or wildlife. (C) Subparagraph (A) is intended to provide reasonable notice where possible and not to affect the jurisdiction of the courts. (4) Costs Awarded by the Court.—The court may award costs of litigation (including reasonable attorney and expert witness fees and expenses) to any party, other than the United States, whenever the court determines such award is appropriate. (5) Disclaimer.—The relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief. (k) Preservation of State Law.—Nothing in this section shall be deemed to preempt or supersede State law.