I 

108TH CONGRESS 

2D SESSION H. R. 5373 

To authorize the Secretary of the Interior to enter into contracts for the 

use of excess storage and conveyance capacity of the Fryingpan-Arkansas 

Project, Colorado, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 17, 2004 

Mr. BEAUPREZ (for himself and Mr. TANCREDO) introduced the following bill; 

which was referred to the Committee on Resources 

A BILL 

To authorize the Secretary of the Interior to enter into 

contracts for the use of excess storage and conveyance 

capacity of the Fryingpan-Arkansas Project, Colorado, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. FEASIBILITY STUDY. 

4 (a) AUTHORIZED.—Pursuant to Federal reclamation 

5 law (the Act of June 7, 1902, and all Acts amendatory 

6 thereof or supplementary thereto), the Secretary of the In7 terior is authorized to conduct a feasibility study to deter8 mine the most feasible method of meeting the present and 
2 

•HR 5373 IH 

1 future water supply and related storage requirements 

2 within the area served by the Fryingpan-Arkansas Project, 

3 including the potential enlargement of Fryingpan-Arkan4 sas facilities. In conducting such study, the Secretary shall 

5 take into consideration the Preferred Storage Options 

6 Plan Report published September 21, 2000, by the South7 eastern Colorado Water and Storage Needs Assessment 

8 Enterprise and Final PSOP Implementation Committee 

9 Report dated April 19, 2001 (hereinafter referred to as 

10 the ‘‘PSOP Reports’’), the intergovernmental agreement 

11 dated May 27, 2004 among the City of Pueblo, the City 

12 of Aurora, the Southeastern Colorado Water Conservancy 

13 District, the City of Fountain, the City of Colorado 

14 Springs, the Board of Water Works of Pueblo, Colorado 

15 (hereinafter referred to as the ‘‘Regional IGA’’), and the 

16 need to ensure compliance with the Arkansas River Com17 pact as executed by the states of Colorado and Kansas 

18 on December 14, 1948 (hereinafter referred to as the ‘‘Ar19 kansas River Compact’’). 

20 (b) FUNDING.—Before funds are expended for the 

21 study authorized by this section, the Southeastern Colo22 rado Water Activity Enterprise shall first agree to partici23 pate in the feasibility study and to fund, at a minimum, 

24 50 percent of the costs of such study. The Southeastern 

25 Colorado Water Activity Enterprise’s share of the costs 
3 

•HR 5373 IH 

1 may be provided partly or wholly in the form of services 

2 directly related to the conduct of the study, as determined 

3 by the Secretary. Costs incurred prior to the enactment 

4 of this Act to develop the PSOP Reports may be credited 

5 toward such Enterprise’s share of the costs of the feasi6 bility study, as determined by the Secretary. 

7 (c) STUDY TO BE SUBMITTED.—The Secretary shall 

8 submit the feasibility study authorized by this section to 

9 the President and the President Pro Tempore of the Sen10 ate and the Speaker of the House of Representatives. 

11 (d) FURTHER AUTHORIZATION REQUIRED FOR CER12 TAIN EXPENDITURES.—No funds shall be expended for 

13 the construction of enlargements, or any other alternative 

14 identified in the feasibility study authorized by this section 

15 for which authority does not currently exist, without fur16 ther authorization by Congress. 

17 (e) AUTHORIZATION OF APPROPRIATIONS.—There is 

18 authorized to be appropriated $4,000,000 to conduct the 

19 feasibility study authorized by this section. 
4 

•HR 5373 IH 

1 SEC. 2. SECRETARY AUTHORIZED TO ENTER INTO CON2 TRACTS FOR THE USE OF EXCESS STORAGE 

3 AND CONVEYANCE CAPACITY OF THE 

4 FRYINGPAN-ARKANSAS PROJECT, COLO5 RADO. 

6 The Act of August 16, 1962, as amended, (76 Stat. 

7 389 et seq., as amended), is amended further by adding 

8 at the end the following new sections: 

9 ‘‘SEC. 8. (a)(1) Except as provided in Section 9, and 

10 subject to the provisions of this Act and all other applica11 ble Federal statutes, the Secretary is authorized to enter 

12 into contracts with any entity, private or public, (herein13 after referred to as ‘entity’), for the use of excess capacity 

14 in the Fryingpan-Arkansas Project for the purpose of di15 verting, storing, impounding, pumping, exchanging, or 

16 conveying nonproject water for irrigation, domestic, mu17 nicipal and industrial, or any other beneficial purpose. 

18 ‘‘(2) In entering into such contracts, the Secretary 

19 shall take into consideration the PSOP Reports, the Re20 gional IGA and the need to ensure compliance with the 

21 Arkansas River Compact. 

22 ‘‘(b) The Secretary is authorized to enter into con23 tracts pursuant to this section provided that— 

24 ‘‘(1) to the extent such contracts are with an 

25 entity that does not have an allocation of Project 

26 carry over storage space pursuant to the allocation 
5 

•HR 5373 IH 

1 principles adopted by the Southeastern Colorado 

2 Water Conservancy District on November 29, 1979, 

3 and confirmed by the District Court of Pueblo Coun4 ty in Civil Action No. 40487 by decree dated Decem5 ber 18, 1979, including any subsequent modifica6 tions made by the District that are confirmed by the 

7 District Court; the contracts shall not impair or oth8 erwise interfere with the ability of an entity that 

9 does have an allocation of Project carry over storage 

10 space to enter into contracts for the use of excess 

11 water storage and conveyance capacity pursuant to 

12 this section 8; and 

13 ‘‘(2) except as provided in section 9, before en14 tering into such a contract with an entity that will 

15 use water stored or conveyed under such contract 

16 outside of the natural basin of the Arkansas River 

17 within Colorado, the Secretary shall provide the 

18 Southeastern Colorado Water Conservancy District a 

19 first right of refusal, exercisable within 90 days, to 

20 enter into contracts for the use of excess water stor21 age and conveyance capacity made available to the 

22 individual or entity that will use water stored or con23 veyed under such contract outside of the natural 

24 basin of the Arkansas River within Colorado; Pro25 vided, in no event shall the Southeastern Colorado 
6 

•HR 5373 IH 

1 Water Conservancy District enter into a sub-con2 tract with an entity that will use water stored or 

3 conveyed under such contract outside of the natural 

4 basin of the Arkansas River. 

5 ‘‘(c) Subject to the provisions of subsection (b), the 

6 Secretary may enter into contracts authorized by this sec7 tion upon such terms and conditions as the Secretary may 

8 determine to be just and equitable. The term of any such 

9 contract shall be for such period, not to exceed 40 years, 

10 as the Secretary deems appropriate. Upon expiration, such 

11 contracts may be renewed upon such terms and conditions 

12 as may be mutually agreeable to the Secretary and the 

13 contractor for the use of excess capacity. 

14 ‘‘(d) All charges established pursuant to this section 

15 shall be just and equitable as to the rates paid by the those 

16 entities that receive project water from the Fryingpan-Ar17 kansas Project facilities. 

18 ‘‘(e) Prior to the execution of any contracts under 

19 this section, the Secretary shall execute an agreement with 

20 the Southeastern Colorado Water Activity Enterprise to 

21 provide guidelines for the terms to be contained in the con22 tracts executed pursuant to this section. Such guidelines 

23 shall appropriately address impacts associated with water 

24 operations under the contracts, surcharges established by 

25 the Enterprise, reimbursement of costs incurred, and 
7 

•HR 5373 IH 

1 water quality monitoring, as identified by the South2 eastern Colorado Water Activity Enterprise and the Sec3 retary. 

4 ‘‘SEC. 9. (a) The Secretary of the Interior may enter 

5 into new and renewal contracts with the City of Aurora, 

6 Colorado, or an enterprise of the City, for a term not to 

7 exceed the term referenced in Section 8(c), for the use 

8 of excess capacity in the Fryingpan-Arkansas Project for 

9 the purpose of diverting, storing, impounding, pumping, 

10 exchanging, or conveying nonproject water for irrigation, 

11 domestic, municipal and industrial, or any other beneficial 

12 purpose. Such contracts shall be— 

13 ‘‘(1) limited to waters appropriated from the 

14 Arkansas River held by the City of Aurora, Colo15 rado, or an enterprise of the City that— 

16 ‘‘(A) are decreed water rights and owned 

17 by the City of Aurora, Colorado, or an enter18 prise of the City as of December 7, 2001; 

19 ‘‘(B) are water rights described in a Colo20 rado Water Court water rights application 

21 pending as of December 7, 2001, or an amend22 ment or re-filing thereof, as long as such 

23 amendment or re-filing does not increase the 

24 draft of water from the Arkansas Basin that 

25 would have been available to City of Aurora, 
8 

•HR 5373 IH 

1 Colorado, or an enterprise of the City under the 

2 original application; 

3 ‘‘(C) result from water lease agreements 

4 existing as of December 7, 2001, including any 

5 renewal or replacement contract for no more 

6 than the existing amount of water; 

7 ‘‘(D) result from interruptible supply 

8 agreements or water bank transactions author9 ized under Colorado law, and operating no more 

10 than five calendar years during any period of 

11 ten consecutive calendar years; or 

12 ‘‘(E) is traded to, or exchanged with, the 

13 City of Aurora, Colorado, or an enterprise of 

14 the City for one of the foregoing items (A) 

15 through (C) as long as such trade or exchange 

16 does not increase the draft of water from the 

17 Arkansas River Basin that would have been 

18 available to the City of Aurora, Colorado, or an 

19 enterprise of the City under subparagraphs (A) 

20 through (C); 

21 ‘‘(2) are for water obtained by the City of Au22 rora, Colorado, or an enterprise of the City from the 

23 Colorado River consistent with section 12; or 

24 ‘‘(3) take into consideration the need to ensure 

25 compliance with the Arkansas River Compact as exe-
9 

•HR 5373 IH 

1 cuted by the states of Colorado and Kansas on De2 cember 14, 1948. 

3 ‘‘(b) Prior to the execution of any renewal contract 

4 with the City of Aurora, the Secretary of the Interior shall 

5 execute an Agreement with the Southeastern Colorado 

6 Water Activity Enterprise, which agreement shall provide 

7 guidelines for the terms to be contained in a renewal con8 tract executed pursuant to this section. Such guidelines 

9 shall appropriately address those impacts associated with 

10 water operations under the contracts, such as storage and 

11 convenience charges, surcharges established by the Enter12 prise, reimbursement of costs incurred, and water quality 

13 monitoring, as identified by the Southeastern Colorado 

14 Enterprise and the Secretary. 

15 ‘‘(c) Any contract executed under the authority of 

16 subsection (a) or (b) shall be in compliance with the provi17 sions of section 8(b)(1). 

18 ‘‘(d) The Secretary shall establish such charges under 

19 this section 9 in a manner consistent with the provisions 

20 of section 8(d). 

21 ‘‘SEC. 10. (a) Nonproject water diverted, stored, im22 pounded, pumped, exchanged, or conveyed under a con23 tract entered into pursuant to section 8 or 9 shall be ex24 empt from any acreage limitation provisions of the Act 

25 of June 17, 1902 (32 Stat. 388), and Acts amendatory 
10 

•HR 5373 IH 

1 thereof and supplementary thereto including, but not lim2 ited to, the Warren Act of 1911, the Reclamation Reform 

3 Act of 1982 (96 Stat. 1263; 43 U.S.C. 390aa-zz-1) and 

4 from any farm unit size limitations established pursuant 

5 to section 4(c)(5) of the Act of August 11, 1939 (Chapter 

6 717; 16 U.S.C. 59–2(c)(5)). 

7 ‘‘(b) Notwithstanding subsection (a), if such non8 project water is commingled with project water in Rec9 lamation project facilities, and the resulting commingled 

10 supply is used to irrigate lands in a project contractor’s 

11 service area, then such commingled water shall bear the 

12 same acreage limitations or farm unit size limitations as 

13 the project water unless— 

14 ‘‘(1) contract provisions are in effect which pro15 vide that project or nonproject water, or both, will 

16 be accounted for on a quantitative basis, that project 

17 water will not be delivered to ineligible land, and 

18 that appropriate charges, as determined by the Sec19 retary, will be paid for the project water; and 

20 ‘‘(2) the charges for the use of the excess ca21 pacity include an appropriate interest component, as 

22 determined by the Secretary. 

23 ‘‘SEC. 11. (a) Excess water storage capacity of the 

24 Fryingpan-Arkansas Project to divert, store, impound, 

25 pump, exchange, or convey nonproject water made avail-
11 

•HR 5373 IH 

1 able under contracts executed pursuant to the provisions 

2 of sections 8 and 9 shall not be utilized so as to increase 

3 diversion of nonproject water from the natural basin of 

4 the Colorado River within Colorado into another river 

5 basin for delivery or storage unless— 

6 ‘‘(1) the diversion is the subject of a decree en7 tered prior to the effective date of this section for 

8 which no new infrastructure or legal approvals are 

9 necessary to divert the water out of the natural 

10 basin; 

11 ‘‘(2) the diversion is the subject of an agree12 ment in existence on the date of the enactment of 

13 this section, contemplating additional diversions di14 verted through or stored in the facilities authorized 

15 by this Act, between the beneficiary of such 

16 transbasin diversion and the water conservation dis17 trict, as defined under Colorado law, from within 

18 whose boundaries the waters are proposed for diver19 sion; 

20 ‘‘(3) the diversion is the subject of an intergov21 ernmental agreement or other contractual arrange22 ment executed after the date of the enactment of 

23 this section, between the beneficiary of such 

24 transbasin diversion and the water conservation dis25 trict, as defined under Colorado law, from within 
12 

•HR 5373 IH 

1 whose boundaries the waters are proposed for diver2 sion; or 

3 ‘‘(4) the beneficiary of such transbasin diver4 sion provides compensatory storage or alternate 

5 water supply in an amount equal to the quantity di6 verted out of the basin for the benefit of the water 

7 conservation district, as defined under Colorado law, 

8 from within whose boundaries the waters are pro9 posed for diversion. 

10 ‘‘(b) Prior to executing any agreement, or arrange11 ment or agreement for provision of compensatory storage 

12 or alternative water supply, that allows for increased di13 versions of nonproject water as described in subsection 

14 (a), the parties to such agreements or arrangements shall 

15 submit the agreement or arrangement to the Secretary, 

16 who, within 30 days, shall submit such agreement or ar17 rangement to the President Pro Tempore of the Senate 

18 and the Speaker of the House of Representatives for a 

19 period of not less than 60 days. 

20 ‘‘(c) This section shall not be considered as precedent 

21 for any other Congressionally authorized project.’’. 

Æ