Title Transfer for Bureau of Reclamation Facilities

Title Transfer for Bureau of Reclamation Facilities

Updated February 6, 2019
Title Transfer for Bureau of Reclamation Facilities
The Bureau of Reclamation (Reclamation), an agency
Under the current title transfer framework (established
within the Department of the Interior (DOI), was
administratively in 1996), to be eligible for transfer,
established to implement the Reclamation Act of 1902. As
Reclamation must consider a project or facility to be
amended, this act authorizes the construction and operations
“uncomplicated,” meaning that it is a single-purpose asset
of water resource projects for irrigation and other purposes
with simple financial arrangements. The project or facility
in the 17 arid states west of the Mississippi River. Along
also must have no competing interests, no hydrologic
with the U.S. Army Corps of Engineers, Reclamation is one
integration with other projects, and no legal and
of the two principal federal agencies that own and operate
institutional concerns (e.g., Endangered Species Act
water resources facilities. Today, Reclamation manages 492
considerations or disagreements among stakeholders). In
dams and 338 reservoirs, which are capable of storing and
some cases, a project with one or more of these issues may
delivering approximately 140 million acre-feet of water
be eligible to move forward with title transfer if the proper
annually. As of 2016, the agency’s inventory of 4,000
operational and/or stakeholder agreements are obtained.
constructed real property assets had a replacement value of
$99 billion.
Pursuant to Reclamation’s current title transfer framework,
qualifying assets are eligible for transfer to users if the
Reclamation is an agency in transition; it faces questions of
following criteria are met:
how it will manage its aging infrastructure inventory amid
other priorities, including new mission responsibilities and
 Protection of the federal Treasury (i.e., the federal
construction projects. As a tool for the bureau to deal with
government is fully reimbursed for its financial interest
its management challenges, some observers have proposed
in a project);
facilitating title transfer, a process by which ownership of
certain qualifying Reclamation facilities may be transferred
 Compliance with state and federal laws;
to nonfederal beneficiaries.
 Protection of interstate compacts and agreements;
Background on the Current Title
Transfer Process
 Fulfillment of Native American Trust responsibilities;
Costs of Reclamation facilities are initially funded by the
federal government, and users repay their allocated share of
 Fulfillment of treaty obligations and international
construction costs over extended terms (users also repay
agreements; and
Reclamation for annual operations and maintenance
expenses). Once construction costs have been repaid,
 Protection of the public aspects of a project.
responsibility for operations and maintenance of the project
may be transferred from Reclamation to project
Proposed title transfers must comply with the National
beneficiaries, but the project remains under federal
Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et
oversight and ownership and is subject to related
seq.) and the National Historic Preservation Act (54 U.S.C.
requirements unless Congress explicitly authorizes its
§100101), among other laws. Title transfers currently are
transfer.
considered “major federal actions” under NEPA, and in
most cases they require an environmental assessment (EA)
In some cases, Reclamation may divest qualifying assets to
or an environmental impact statement (EIS), depending on
users through the title transfer process. There are two main
the significance of the action. The costs for these reviews
steps in the title transfer process: (1) review and approval of
are shared between the transferee and the federal
a proposed transfer by Reclamation and (2) authorization of
government. According to Reclamation, to date eight title
the transfer by Congress (the two steps do not always occur
transfers have undergone EAs that resulted in Findings of
in this order). Title transfer can be beneficial for both
No Significant Impacts (FONSI) under NEPA, with no
Reclamation and users under specific circumstances; it
associated mitigation required.
frees Reclamation from project-specific responsibilities,
such as oversight of operations and design of future repair
Concerns with the Current Process
or construction efforts, and users may gain benefits
In 2014 House testimony, Reclamation expressed concern
associated with ownership of the underlying infrastructure
that the pace of title transfer was slowing due to cost and
(e.g., leveraging of assets for project upgrades/finance) and
administrative burdens associated with the process. Overall,
reduced reporting and administrative responsibilities.
from 1996 to 2018, Congress authorized and Reclamation
Reclamation has characterized title transfer as part of a
executed title transfer for 30 facilities. Whereas 20 title
“commitment to a Federal Government that works better
transfers were implemented from 1996 to 2006, 10 such
and costs less.”
transfers occurred from 2007 to 2018.
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Title Transfer for Bureau of Reclamation Facilities
In 2014 testimony, Reclamation expressed concerns
that largely mirrors the language previously proposed in S.
that the pace of title transfers was slowing due to cost
2560.
and administrative burdens.
Sections 8001-8007 of S. 47 would establish a process
whereby title of an eligible project or part of a project (i.e.,
Individual facility title transfers have been proposed for
specific facilities) could be transferred to a qualifying entity
authorizations in recent Congresses. For instance, in the
115th Congress, H.R. 6038, H.R. 6039, and H.R. 6040 all
without congressional authorization, as long as the
would have conveyed individual facilities to users.
Secretary of the Interior notifies Congress 90 days prior to
the proposed conveyance and Congress does not disapprove
Some have criticized specific aspects of the title transfer
with a joint resolution before the proposed date of
conveyance. Similar to proposals in prior Congresses, the
process, in particular the environmental study requirements
bill excludes hydropower facilities from eligibility for
and the need for congressional authorization of individual
title transfers. These observers have argued that the current
programmatic transfer. The bill would direct the Secretary
of the Interior to establish minimum eligibility criteria for
process is onerous, costly, and uncertain. They note that
transfers; these criteria appear to largely mirror the current
some beneficiaries who otherwise would be interested in
criteria discussed above.
title transfer choose not to pursue the process because of its
current requirements. In congressional testimony, some
Some stakeholders have noted that potential loss of the
users noted examples of previous title transfers that took 8-
10 years to implement. Proponents of efforts to facilitate
ability to purchase project power (i.e., low-cost power
produced by a Reclamation project that is available to water
title transfer believe that a reformed process has the
potential to benefit both water users and Reclamation.
users to cover pumping and other costs) is a potential
deterrent for some users considering title transfers. Section
8006 of S. 47 would allow a transferred facility to continue
Although most agree that title transfer can be beneficial
receiving project power if the transferee is receiving power
under some circumstances, a difference in opinion remains
as of the date of the bill’s enactment
over what changes to the process are warranted. Proposed
; the power would be
used for the delivery of Reclamation project water; and the
modifications have come in the form of both
transferee agrees to be responsible for a proportionate share
administrative/regulatory changes (e.g., altered NEPA study
requirements) and legislative changes (e.g., broad authority
of operations, maintenance, and capital costs associated
with this benefit.
for Reclamation to transfer title to certain project types,
without additional congressional approval). Both sets of
proposals are discussed below.
A primary issue related to programmatic title transfer
authorities has been what limits to place on the scale and
Proposed NEPA Categorical Exclusion
type of projects authorized for transfer. Neither bill
A category of actions may be excluded from further NEPA
explicitly limits the title transfer authority to
“uncomplicated” projects, as defined in the existing
review if a federal agency determines that the actions will
Reclamation title transfer framework (i.e., single-purpose,
not normally have an individually or cumulatively
significant effect on the environment and neither an EA nor
noncontroversial projects). However, Section 8004 of S. 47
would provide that if the facility to be transferred is a dam
an EIS is required. This is known as a categorical exclusion
(CE) under NEPA.
or water diversion facility affecting a body of water
containing an endangered species or critical habitat under
the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
On October 17, 2018, Reclamation proposed that a new
et seq.), it must continue to comply with ESA to the same
NEPA CE be created to facilitate title transfer for a limited
set of simple, “uncomplicated” projects. To be eligible for
extent as is currently the case. The bill also would provide
that dam and diversion works that are part of the Central
the CE, projects must not have competing demands for
Valley Project in California are not eligible for this
transferred facilities or be hydrologically integrated with
facilities that would impact other users, among other
authority (presumably, these facilities still would need to
pursue individual title transfer authorities from Congress).
criteria. Reclamation pointed to its eight previous
EA/FONSIs for title transfers as evidencing the need for
this CE.
Most Reclamation project water users support legislative
efforts to streamline the title transfer process. However,
Programmatic Title Transfer Authority
some have expressed concerns with the potential for
Proposal
programmatic title transfer authority to allow larger or more
complex title transfer projects to move forward without
Several bills proposed in recent Congresses have aimed to
congressional input. Some also have expressed a general
facilitate more title transfers by providing Reclamation with
a broad, non-project-specific authority (also referred to as
hesitancy with providing Reclamation the authority to carry
out transfers without existing levels of congressional
programmatic authority) to carry out title transfers that
oversight.
meet certain criteria without the express approval of
Congress. In the 115th Congress, H.R. 3281 and S. 2560
would have provided this authority but approached the issue
Charles V. Stern, Specialist in Natural Resources Policy
differently. In the 116th Congress, S. 47 (Natural Resources
IF10924
Management Act) would authorize title transfer authority

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Title Transfer for Bureau of Reclamation Facilities

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