Federal water law and the "double whammy": How the bureau of reclamation can help the west adapt to drought and climate change

Ecology Law Quarterly

Volumn 39, Issue 4, 2012, Pages 1047-1081

  Benson, Reed D ^a  

^a UNIVERSITY OF NEW MEXICO   (United States)

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[No Author keywords available]

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EID: 84884698111     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (133)

1. Drought and Climate Change on Water Resources: Hearing Before the S. Comm. on Energy and Natural Res., 112th Cong. 31 (2011) [hereinafter Drought Hearing] (statement of Dr. Jonathan Overpeck, Professor of Geosciences, University of Arizona). The report that Dr. Overpeck refers to here is discussed infra notes 84-101 and accompanying text.
2. U.S. DROUGHT MONITOR (June 26, 2012), http://www.droughtmonitor.unl.edu. The Drought Monitor classifies drought conditions by their intensity. "Extreme" drought is the second-worst category, followed by "Severe" and "Moderate." The Drought Monitor for June 26, 2012 shows nearly the entire territory of all five states, along with most of the southern half of California, as suffering at least moderate drought. Id. The region also suffered from scorching temperatures; for example, Colorado sweltered through its warmest June on record, with the statewide average temperature 6.4°F above the long-term average for the month.
3. See Lauren Morello, Weather: Hot, Dry June Broke an Array of Records -NOAA, CLIMATEWIRE (July 10, 2012), http://eenews.net/public/climatewire/2012/ 07/10/2.
4. See David H. Getches, The Metamorphosis of Western Water Policy: Have Federal Laws and Local Decisions Eclipsed the States' Role?, 20 STAN. ENVTL. L.J. 3 (2001).
5. A more recent article specifically addresses the implications of climate change for federalism in water law and policy. Robin Kundis Craig, Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources, 5 ENVTL. & ENERGY L. & POL'Y J. 183 (2010).
6. W. GOVERNORS' ASS'N, POLICY RESOLUTION 09-3, REGIONAL AND NATIONAL POLICIES REGARDING GLOBAL CLIMATE CHANGE ¶ A.2 (2009), available at http://www.tribesandclimatechange .org/docs/tribes-254.pdf.
7. The WGA is "an independent, non-partisan organization of Governors from 19 Western states, two Pacific-flag territories and one commonwealth," which identifies and addresses key policy and governance issues in several fields of regional importance, including natural resources and the environment. How Does WGA Work?, W. GOVERNORS' ASS'N, http://www.westgov.org/about/how-wga- works (last visited Mar. 22, 2012).
8. "WGA helps the Governors develop strategies both for the complex, long-term issues facing the West and for the region's immediate needs. Governors use the WGA to develop and advocate policies that reflect regional interests and relationships in debates at the national and state levels." Id. One of the WGA's major areas of emphasis has been water policy. See Water: Supplies, Transfers, & Drought, W. GOVERNORS' ASS'N, http://www.westgov.org/ initiatives/ water (last visited Mar. 22, 2012) (featuring numerous WGA resolutions and reports on water policy issues).
9. W. GOVERNORS' ASS'N, WATER NEEDS AND STRATEGIES FOR A SUSTAINABLE FUTURE 22 (2006), available at http://www.westgov.org/initiatives/water/Water06.pdf. The WGA noted that the water sector in the West is already stressed even without climate change, due to such factors as over-appropriated watersheds, "population growth, land use changes, and water needs for instream uses, including those necessary to meet federal laws like the Endangered Species Act and the Clean Water Act. . . . Climate change may pose additional stresses and could result in thresholds being reached earlier than currently anticipated." Id.
10. The seventeen states of the Reclamation program are the six Great Plains states from North Dakota down to Texas, the three West Coast states, and the eight states of the Intermountain West. 43 U.S.C. § 391 (2006).
11. Pub. L. No. 102-250, 106 Stat. 53 (1992)
12. codified as amended at 43 U.S.C. §§ 2201-2247 (2006).
13. Pub. L. No. 111-11, § 9503, 123 Stat. 991, 1332 (2009)
14. codified at 42 U.S.C. § 10363.
15. In this context, SECURE is one of those tortured legislative acronyms, standing for "Science and Engineering to Comprehensively Understand and Responsibly Enhance." S. 2156, 110th Cong. § 1 (2007).
16. Reclamation Act of June 17, 1902, ch. 1093, 32 Stat. 388
17. codified in scattered sections of 43 U.S.C. § 371-498.
18. See Peterson v. U.S. Dep't of the Interior, 899 F.2d 799, 802-03 (9th Cir. 1990) (explaining early features and purposes of the Reclamation program).
19. As stated by historian Donald Pisani, "Not until the 1930s, when the 'High Dam Era' gave the bureau responsibilities for providing water to cities as well as farms, did it become the most important federal agency in the West. From 1930 to 1970 the water and power provided by the bureau transformed the region." Donald J. Pisani, Federal Reclamation Law in the Twentieth Century: A Centennial Retrospective, in THE BUREAU OF RECLAMATION: HISTORY ESSAYS FROM THE CENTENNIAL SYMPOSIUM VOLUMES I AND II 611, 611 (2008), available at http://www.usbr.gov/history/ Symposium-2008/Historical-Essays.pdf.
20. Id. at 625 (placing the end of the dam building era in the 1970s and stating reasons why it ended). "The last really big project construction authorization occurred in 1968 when Congress approved the Colorado River Basin Project Act which included the Central Arizona Project, the Dolores Project, the Animas-La Plata Project, the Central Utah Project, and several other projects." U.S. BUREAU OF RECLAMATION, A BRIEF HISTORY OF THE BUREAU OF RECLAMATION 5 (2000).
21. USBR claims to provide irrigation water for one-fifth of the West's farmers, provide public water supply for more than thirty million people, generate forty billion kilowatt-hours of electricity per year, and host (with partners) ninety million recreational visitor-days annually. Bureau of Reclamation Facts & Information, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/main/about/fact.html (last visited Mar. 29, 2012).
22. Examples of general reclamation laws after 1902 include section 9 of the Reclamation Project Act of 1939, 43 Stat. 1194
23. codified at 43 U.S.C. § 485h (2006)
24. the Reclamation Reform Act of 1982, Pub. L. No. 97-295, 96 Stat. 1263
25. codified as amended at 43 U.S.C. §§ 390aa-390zz-1 (2006).
26. See, e.g., Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat. 156 (authorizing the San Luis Unit of the Central Valley Project).
27. The best-known example of a statute that addresses various aspects of a pre-existing project is the Central Valley Project Improvement Act of 1992, Pub. L. No. 102-575, 106 Stat. 4706 (1992).
28. See, e.g., Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981) (analyzing statutes authorizing the San-Juan Chama Project to determine whether they allowed project water to be used for recreational purposes).
29. See Reed D. Benson, Whose Water Is It? Private Rights and Public Authority over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 369-72 (1997) (noting that there is no standard definition of this term).
30. See generally U.S. BUREAU OF RECLAMATION, A BRIEF HISTORY OF THE BUREAU OF RECLAMATION 7-10 (2000).
31. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO/T-RCED-97-150, BUREAU OF RECLAMATION: RECLAMATION LAW AND THE ALLOCATION OF CONSTRUCTION COSTS FOR FEDERAL WATER PROJECTS 3-4 (1997). This report summarized cost allocations for a total of 133 reclamation projects; reimbursable costs (primarily irrigation and hydropower) far exceeded nonreimbursable ones, and the largest nonreimbursable categories in dollar terms were flood control and fish and wildlife. Id. at 8.
32. See generally South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 2003) (explaining Missouri River reservoir operations for flood control, fish habitat, navigation, and other uses).
33. See Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir. 1990) (recognizing that USBR's plan to reduce Palisades Dam releases during drought would harm downstream fishery, but holding that no environmental impact statement was needed).
34. 42 U.S.C. §§ 4321-4370f (2006).
35. NEPA's requirements ensure that an agency will acquire and consider detailed information on environmental impacts before making a decision, and will make such information available to the public to facilitate its involvement in the decision-making process. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
36. Reed D. Benson, Environmental Review of Western Water Project Operations: Where NEPA Has Not Applied, Will It Now Protect Farmers From Fish? 29 UCLA J. ENVTL. L. & POL'Y 269, 287-96 (2011). In this article, I offered both legal and policy reasons why USBR should do NEPA reviews of long-term project operating plans. Id. at 301-05. I also recognized, however, that USBR had substantial reasons for wanting to avoid NEPA reviews in this context. Id. at 273.
37. U.S. BUREAU OF RECLAMATION, SECURE WATER ACT SECTION 9503(C) -RECLAMATION CLIMATE CHANGE AND WATER 2011 18 (2011) [hereinafter USBR 2011 CLIMATE REPORT]. These flows were measured at the Lees Ferry gauging station, sixteen miles below Glen Canyon Dam, and just above the Grand Canyon. Id.
38. W.L. Rusho, Bumpy Road for Glen Canyon Dam, in THE BUREAU OF RECLAMATION: HISTORY ESSAYS FROM THE CENTENNIAL SYMPOSIUM VOLUMES I AND II 526 (2008), available at http://www.usbr.gov/history/Symposium-2008/Historical-Essays.pdf. The article notes that Lake Powell did indeed help the Colorado River Basin survive the 1999-2005 drought, and quotes an unnamed Bureau spokesman as saying, "Lake Powell releases kept Lake Mead from going dry." Id. at 547.
39. W. GOVERNORS' ASS'N & W. STATES WATER COUNCIL, IMPROVING DROUGHT PREPAREDNESS IN THE WEST 1 (2011), http://www.westgov.org/component/joomdoc/doc- download/ 1356-drought-climate-adaptation2010 (last visited Oct. 14, 2012).
40. See, e.g., Robin Kundis Craig, Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources, 5 ENVTL. & ENERGY LAW & POL'Y J. 183 (2010);
41. Robin Kundis Craig, Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation as Emergency Response and Preparedness, 11 VT. J. ENVTL. L. 709 (2010);
42. see also Robert H. Abrams & Noah D. Hall, Framing Water Policy in a Carbon Affected and Carbon Constrained Environment, 50 NAT. RESOURCES J. 3 (2010).
43. John Leshy's broad prescription for water policy reform deals with issues far beyond climate change, but concludes, "Climate change is a two-edged sword for U.S. water management. Its destabilizing effect on water supplies poses a huge challenge to water users and managers. But concern about climate change is also creating a more favorable political climate for adopting long needed reforms in water policy." John Leshy, Notes on a Progressive National Water Policy, 3 HARV. L. & POL'Y REV. 133, 159 (2009).
44. S. 2156, 110th Cong. (2007).
45. Pub. L. No. 111-11, 123 Stat. 991 (2009).
46. This bulky legislation primarily addressed federal public land designations, but Title IX also included several authorizations for USBR, including SECURE. 123 Stat. 1295-1414.
47. 42 U.S.C. § 10361(3) (2006).
48. See SECURE § 9503, 42 U.S.C. § 10363 (titled "Reclamation climate change and water program").
49. "The Secretary shall establish a climate change adaptation program" that will operate within the seventeen western states where USBR projects are located. 42 U.S.C. § 10363(a);
50. defining the term "service area" with reference to the seventeen reclamation states listed in 43 U.S.C. § 391.
51. 42 U.S.C. § 10363(a)(1).
52. "Ecological resiliency" is not defined in the statute, although the term has become increasingly familiar in the field of natural resource management. According to Alyson Flournoy, the concept of ecological resilience "can help us to describe the degree of disturbance a system can tolerate before it flips into another behavior regime. Resilience expresses the ability of a system to rebound from disturbance and the point at which a disturbance triggers a shift in the structure of the system." Alyson C. Flournoy, Protecting a Natural Resource Legacy While Promoting Resilience: Can It Be Done? 87 NEB. L. REV. 1008, 1024 (2009).
53. 42 U.S.C. § 10363(b)(4). A "non-federal participant" can be a state, regional or local authority; an Indian tribe or tribal entity; or "any other qualifying entity, such as a water conservation district, water conservancy district, or rural water district or association, or a nongovernmental organization." It is not clear what "qualifying" means in this context. See id. § 10362(13).
54. 42 U.S.C. § 10363(d)(2)(A). The non-federal cost share may be in the form of in-kind services rather than money. Id. § 10363(d)(2)(B).
55. 42 U.S.C. § 10363(b)(4). Similarly, the congressional findings speak in terms of federal agencies taking the lead in developing strategies, but say nothing about implementing them. Id. § 10361(5).
56. A feasibility study has been a prerequisite to project development in the Reclamation program since at least 1924. "Fact Finders Act" § 4.B, 43 Stat. 672, 702 (1924)
57. codified at 43 U.S.C. § 412.
58. 42 U.S.C. § 10363(e).
59. For example, the Yuma Desalting Plant was authorized in 1975 and completed in 1992 under the authority of a 1974 statute called the Salinity Control Act, but remained largely idle for the first 20 years of its existence. See Colorado River Basin Salinity Control Act, Pub. L. 93-320, 88 Stat. 266 (1974);
60. U.S. BUREAU OF RECLAMATION, THE COLORADO RIVER DOCUMENTS 2008 4-12 (2010). Recently USBR did a test run of the Yuma Desalting Plant, and mentioned this item in its 2011 report on the Climate Change and Water Program. See infra note 98 and accompanying text.
61. One piece of legislative history would suggest that SECURE does authorize USBR to implement these strategies. Just before the 2009 vote on final passage, Senator Jeff Bingaman made a statement on the Senate floor. Senator Bingaman was SECURE's lead sponsor, and his Senate Energy and Natural Resources Committee had held hearings on the bill, S. 2156, in the 110th Congress. SECURE Water Act: Hearing Before the S. Comm. on Energy and Natural Res., 110th Cong. (2007) [hereinafter SECURE Hearing].
62. In his 2009 floor statement, Senator Bingaman said that SECURE would "improve our understanding of the impacts of climate change on water and ensure that adaptation strategies are formulated and implemented." 155 CONG. REC. S3390 (Mar. 19, 2009) (statement of Senator Bingaman). Certainly Senator Bingaman -a very able and experienced legislator (and former state attorney general) -could be expected to describe his own bill accurately. But if his statement suggests that SECURE itself confers authority to implement climate change adaptation strategies, that reading finds limited support in the text of the statute.
63. 42 U.S.C. § 10363(c). This section required the initial report to Congress in 2011, with further reports to be filed every five years.
64. See U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA DESALTING PLANT DEMONSTRATION RUN REPORT 1-2 (2008).
65. Pub. L. 98-541, 98 Stat. 2721 (1984). Congress found, among other things, that the Interior Secretary "requires additional authority . . . to achieve the long-term goals of restoring fish and wildlife populations in the Trinity River Basin." Id. § 1(7).
66. 42 U.S.C. § 10363(d) (2006).
67. In fiscal year 2009, USBR funded studies in the interstate Colorado River Basin, in the St. Mary and Milk River Basins (Montana and Canada), and the Yakima River Basin (Washington). In fiscal year 2010, USBR funded studies in the Henry's Fork (Idaho), Niobrara (Nebraska), Santa Ana (California), and Truckee (Nevada) River Basins, as well as the Southeast California Regional Basin. Funding in fiscal year 2011 went to studies in the Hood (Oregon), Klamath (Oregon/California), Lower Rio Grande (Texas and Mexico), and Santa Fe (New Mexico) River Basins. As this article was being completed, USBR announced five new basin studies: the Los Angeles and Sacramento-San Joaquin (both in California), Pecos (New Mexico), Republican (Colorado, Kansas and Nebraska), and Upper Washita (Oklahoma). See WaterSMART Basin Studies: Funded Studies, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/WaterSMART/bsp/studies.html (last visited Mar. 1, 2012).
68. WaterSMART Basin Studies: Program Requirements, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/WaterSMART/bsp/require.html (last visited Mar. 14, 2012).
69. Press Release, U.S. Bureau of Reclamation, Yakima River Basin Study, First One Completed Under Reclamation's WaterSMART Program (Feb. 2, 2012), available at http://www.usbr.gov /newsroom/newsrelease/detail.cfm?RecordID= 39123.
70. Such problems had led Congress in 1994 to authorize the Yakima River Basin Water Enhancement Project. Pub. L. No. 103-434, tit. XII, 108 Stat. 4526, 4550 (1994).
71. U.S. BUREAU OF RECLAMATION & WASH. DEP'T OF ECOLOGY, YAKIMA RIVER BASIN INTEGRATED WATER RESOURCE MANAGEMENT PLAN, FINAL PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT EXECUTIVE SUMMARY i-ii (2012), available at http://www.usbr.gov/pn/programs/yrbwep/reports/FPEIS/summary.pdf.
72. Henrys Fork of the Snake River Basin Study, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/WaterSMART/bsp/docs/fy2010/Henry's -Fork-Factsheet-Final.pdf (last visited Mar. 14, 2012).
73. Niobrara River Basin Study Fact Sheet, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/WaterSMART/bsp/docs/fy2010/Niobrara-River-Basin-Study- Factsheet.pdf (last visited Mar. 14, 2012).
74. Klamath River Basin Study Fact Sheet, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/WaterSMART/bsp/docs/fy2011/Final-Factsheet-Klamath.pdf (last visited Mar. 14, 2012).
75. Pub. L. No. 102-250, 106 Stat. 53 (1992)
76. codified as amended at 43 U.S.C. §§ 2201-2247 (2006).
77. 43 U.S.C. § 2221 (authorizing Secretary "to conduct studies to identify opportunities to conserve, augment, and make more efficient use of water supplies available to federal Reclamation projects and Indian water resource developments in order to be prepared for and better respond to drought conditions").
78. An earlier version of the bill that became the Drought Relief Act would have delayed the effective date of each plan for at least sixty days after it had been submitted to the relevant committees in the U.S. House and Senate, unless each committee approved the plan within that sixty-day period. H.R. REP. NO. 102-21, at 4 (1991)
79. describing section 204 of H.R. 355, 102d Cong. (1991).
80. This feature was dropped before enactment, apparently in the Senate, leaving only the requirement of submittal to Congress. S. REP. NO. 102-185, at 65 (1991) (noting that any plan requiring either authorizing legislation or appropriations would require congressional approval, and that the Secretary would need to "approve any aspects of a plan which would involve the exercise of federal authorities which lie within the discretion of the Secretary").
81. 43 U.S.C. § 2224(a).
82. 43 U.S.C. § 2223(d). This requirement applies to the plans themselves, as well as "plan elements."
83. 43 U.S.C. § 2211(c).
84. Pub. L. No. 102-250, § 104(c), 106 Stat. 53, 56 (1992).
85. 43 U.S.C. § 2214(c).
86. Congress originally extended the effective date of Title I until September 30, 2005. Pub. L. No. 106-566, § 201(a), 114 Stat. 2818, 2820 (2000).
87. The authority lapsed, but Congress revived it in 2006. Pub. L. No. 109-234, §2306(a), 120 Stat. 418, 456 (2006).
88. In 2010, Congress provided a two-year extension. Pub. L. No. 111-212, § 404(a), 124 Stat. 2302, 1213 (2010).
89. 43 U.S.C. § 2225. This fund could also be used to make loans for certain types of small drought mitigation projects. Id.
90. In the Rio Grande Silvery Minnow litigation involving a dispute over USBR's discretion to implement the Endangered Species Act, the parties disagreed on the meaning of the Drought Relief Act, with the environmental plaintiffs focusing on the authority to make water available for fish and wildlife, and the federal government and water users focusing on the language requiring any such action to be consistent with the Bureau's other obligations. See Brief for Plaintiffs-Appellees at 51-52, Rio Grande Silvery Minnow v. Keys, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Dec. 18, 2002), 2002 WL 32879652;
91. Brief for Federal Appellants at 29-32, Rio Grande Silvery Minnow v. Keys, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Nov. 20, 2002), 2002 WL 32879498;
92. Reply Brief for Appellant Middle Rio Grande Conservancy District at 18-21, Rio Grande Silvery Minnow v. Rinne, Nos. 05-2399, 06-2020, and 06-2021 (9th Cir. Oct. 5, 2006), 2006 WL 3293790.
93. The Drought Relief Act played little if any part in the outcome of the litigation, however, and eventually all opinions in the case were vacated on mootness grounds. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1104, 1111-12, 1133 (10th Cir. 2010).
94. According to a report of the House Interior and Insular Affairs Committee, the "primary purpose" of the legislation was to give the Bureau "sufficient temporary authority to provide water to those users and areas which will suffer severe and irreplaceable losses because of the drought, . . . including providing water to those users and uses which do not normally receive water from Bureau projects." H.R. REP. NO. 102-21, at 6 (1991).
95. U.S. DEP'T OF THE INTERIOR, BW-20, BUDGET JUSTIFICATIONS AND PERFORMANCE INFORMATION, FISCAL YEAR 2011: BUREAU OF RECLAMATION (2010), available at http://www.usbr.gov/budget/2011/2011Budget.pdf. The fiscal year 2012 and 2013 budgets have no line item for drought relief.
96. Telephone interview with Ken Maxey, Reclamation Drought Coordinator, USBR, in Denver, Colo. (Mar. 16, 2012).
97. The States of Arizona, Hawaii, New Mexico, and Utah submitted plans, along with the Hopi and Hualapai Tribes and the Navajo Nation, as well as San Juan County, Utah. All of these plans were developed from 2000 to 2005. Drought Declarations and Contingency Plans as of May 13, 2010, e-mail attachment from Ken Maxey, Reclamation Drought Coordinator, to Reed D. Benson, Professor, Univ. Of New Mexico School of Law (Mar. 16, 2012, 11:33 MDT) (on file with author).
98. 43 U.S.C. § 2211(a) (2006).
99. USBR used this authority to acquire water from the City of Albuquerque during the drought of the early 2000s, for purposes of maintaining river flows for the endangered Rio Grande silvery minnow. See San Juan-Chama Project Contracts Between the Bureau of Reclamation and the City of Albuquerque to Lease the Use of San Juan-Chama Project Water, No. 00-WC-40-6630 (2000) and No. 02-WC-40-8210 (2002) (on file with author).
100. USBR has a web page devoted to its drought program, which includes a link to the Drought Relief Act. Policy and Program Services: Drought Program, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/drought (last visited Mar. 16, 2012). Under the heading "Interim Directives & Standards," the page states, "Reclamation is working to update and finalize the Drought Directives and Standards, which will be posted here when available. The drafts below are for reference only." Links below include "Title I: Emergency Assistance" and "Title II: Contingency Planning." Clicking on those links brings up documents marked "DRAFT" and dated "4/12/02." Id.
101. U.S. BUREAU OF RECLAMATION, INTERIM DIRECTIVES & STANDARDS, TITLE I, RECLAMATION STATES EMERGENCY DROUGHT RELIEF ACT OF 1991 ¶ 9.C (2002), available at http:// www.usbr.gov/drought/title1.pdf. USBR will consider drought declarations to be in effect for one year after issuance.
102. "Having such 'on-the-shelf' contingency plans in place will allow the Federal government and the States cooperatively to anticipate drought conditions and act early to prevent or at least mitigate the adverse impact that drought conditions may have on environmental resources and water users." H.R. REP. NO. 102-21, at 7 (1991).
103. 42 U.S.C. § 10363(b)(4) (2006).
104. 43 U.S.C. § 2222.
105. 42 U.S.C. § 10363(b)(4).
106. 43 U.S.C. § 2222.
107. 42 U.S.C. § 10363(b)(4)(A)-(C).
108. 43 U.S.C. § 2223(a).
109. Most notably, perhaps, SECURE allows for consideration of constructing significant, permanent new infrastructure. 42 U.S.C. § 10363(d)(1).
110. The Drought Relief Act contemplates only "minor structural actions," and focuses more on providing temporary water supplies through such measures as water banks, water transfers, and changes to the operation of existing facilities. 43 U.S.C. § 2223(a).
111. W. GOVERNORS' ASS'N, POLICY RESOLUTION 11-7, WATER RESOURCE MANAGEMENT IN THE WEST ¶ B.7 (2011), available at http://www.westgov.org/component/ joomdoc/doc-download/1441-11-7-.
112. SECURE section 9504, however, authorizes the Secretary to make grants to (or cooperative agreements with) states, tribes, water suppliers, and other entities to promote certain goals, including water conservation, enhanced water management, and fish and wildlife habitat protection. 42 U.S.C. § 10364.
113. Given the resource limitations and eligibility constraints of this program, however, these grants represent a very modest tool for addressing these problems. See Reed D. Benson, New Adventures of the Old Bureau: Modern-Day Reclamation Statutes and Congress's Unfinished Environmental Business, 48 HARV. J. ON LEGIS. 137, 169-72 (2011).
114. 42 U.S.C. § 10370(b) (2006);
115. 43 U.S.C. § 2244(a) (2006).
116. 43 U.S.C. § 2222.
117. Despite the ongoing, intense drought and its effects on agriculture across much of the country, the House in July 2012 was in no hurry to revive expired Farm Bill programs providing drought relief to farmers. David Pitt, USDA Chief Urges Action on Farm Bill as Drought Persists, ASSOCIATED PRESS, July 24, 2012, available at http://articles.philly.com/2012-07-24/news/32828949-1-farm- bill-livestock-farmers-agriculture-secretary-tom-vilsack. On the subject of water, the current Congress has also failed to approve a bill authorizing a much-heralded settlement of a major dispute in the Klamath Basin, although that measure carries a sizeable price tag.
118. See Allison Winter, Klamath: Interior Delays Decision on Dam Removal, GREENWIRE (Mar. 2, 2012), http://www.eenews.net/Greenwire/2012/03/02/archive/27 (noting that Congress's failure to act has delayed implementation of the settlement, including the Interior Secretary's decision on removal of certain dams). The failure of Congress to advance new wilderness bills, even compromise measures with support from a broad range of local stakeholders, speaks to the current difficulty facing nearly any legislation regarding natural resources.
119. See Danielle Venton, Wilderness Bills Languish in Legislative Limbo, HIGH COUNTRY NEWS (Mar. 5, 2012), http://www.hcn.org/issues/44.4/wilderness-bills- languish-in-legislative-limbo.
120. Pub. L. No. 102-250, § 104(c), 106 Stat. 53, 56 (1992).
121. USBR is apparently drafting legislation that would provide a five-year extension of Title I, and also raise the appropriations ceiling. Telephone interview with Ken Maxey, supra note 150. The statute currently caps appropriations at a total of $90 million for the period from fiscal year 2006 through fiscal year 2012. 43 U.S.C. § 2241 (2006).
122. Title I authority is triggered by an approved request for "temporary drought assistance" from a governor or tribe, or by an approved drought contingency plan under Title II. 43 U.S.C. § 2214(a) (2006). Title II provides that drought contingency plans must be "for the prevention or mitigation of adverse effects of drought conditions," id. § 2222, and refers to "drought levels that would trigger the implementation of contingency plans," id. § 2223(c). But the statute does not define "drought" or specify any particular requirement for putting such plans into practice.
123. See, e.g., Ryan A. Smith, Indian Water Settlements: Outlook for the 112th Congress and Beyond, WATER REPORT, Aug. 15, 2011, at 10, 12-13 (describing serious challenges in securing congressional approval to fund water right settlements with Indian tribes).
124. 43 U.S.C. § 392a provides in part, "All moneys received by the United States in connection with any irrigation projects, including the incidental power features thereof," constructed by USBR using federal funds, "shall be covered into the reclamation fund," except where otherwise authorized by law. The Reclamation Fund was created by the original 1902 Reclamation Act, and was originally seeded by the proceeds from federal land sales; this fund would provide the money to build reclamation projects, and irrigators would repay construction costs into the fund.
125. 43 U.S.C. § 375. Over time, however, Congress made major changes to the approach to project funding and repayment.
126. Congress in 2009 directed that money paid into the Reclamation Fund be diverted to provide funding for tribal water rights settlements. Pub. L. No. 111-11, § 10501, 123 Stat. 991, 1375 (2009)
127. codified at 43 U.S.C. § 407.
128. A bill in the current Congress would divert money from the Reclamation Fund to provide $80 million annually for USBR to complete construction of authorized rural water projects. If enacted, the bill would provide this amount for fiscal years 2013 through 2029 from "revenues that would otherwise be deposited for the fiscal year in the reclamation fund established by the first section of the Act of June 17, 1902." The bill stipulates, however, that such funds would not be made available if doing so would increase the federal deficit. S. 3385, 112th Cong. § 3(b) (2012).
129. Appropriations for USBR's drought relief program are currently capped at a total of $90 million for a seven-year period ending in fiscal year 2012. 43 U.S.C. § 2241. Congress not only must authorize new spending in the statute itself, but must also provide a level of appropriations -whether from the Reclamation Fund of some other source -adequate to support an effective drought relief program.
130. See 5 U.S.C. § 553(b) (2006) (requiring notice for proposed rules, but exempting interpretive rules and policy statements).
131. See United States v. Mead Corp., 533 U.S. 218, 234 (2001) (denying Chevron deference to a Customs Service ruling on tariff classification of a product, and noting that "interpretations contained in policy statements, agency manuals, and enforcement guidelines" do not normally merit such strong deference from the courts).
132. See, e.g., Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1227-28 (11th Cir. 2009) (using Chevron deference to uphold an EPA rule exempting certain water transfers from Clean Water Act permitting requirements, even though other courts had rejected EPA's position before the agency adopted it as a rule).
133. The second sentence of section 302 states that the Secretary "shall" do these things "[i]n carrying out the authorities under this Act . . . ." 43 U.S.C. § 2242.