II 115th CONGRESS 1st Session S. 1012 IN THE SENATE OF THE UNITED STATES May 2, 2017 Mr. Udall (for himself and Mr. Heinrich ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To provide for drought preparedness measures in the State of New Mexico, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the New Mexico Drought Preparedness Act of 2017 . (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Water acquisition program. Sec. 4. Water conservation. Sec. 5. Middle Rio Grande peak flow restoration. Sec. 6. National Academy of Sciences study. Sec. 7. Emergency funding. Sec. 8. Secure Water Act reauthorization. Sec. 9. Reclamation States Emergency Drought Relief Act reauthorization. Sec. 10. Rio Grande Pueblo irrigation infrastructure reauthorization. Sec. 11. Regional conservation partnership program. Sec. 12. Conservation reserve program. Sec. 13. Effect on existing law. 2. Definitions Except as otherwise provided in this Act, in this Act: (1) Basin The term Basin — (A) is limited to areas within the State of New Mexico; and (B) means each of— (i) the Upper Rio Grande Basin; (ii) the Middle Rio Grande Basin; (iii) the Lower Rio Grande Basin; (iv) the Lower Pecos River Basin; (v) the Gila River Basin; (vi) the Canadian River Basin; (vii) the San Francisco River Basin; and (viii) the San Juan River Basin. (2) District The term District means the Middle Rio Grande Conservancy District. (3) Pueblo The term Pueblo means each of the following pueblos in the State: (A) Cochiti. (B) Santo Domingo. (C) San Felipe. (D) Santa Ana. (E) Sandia. (F) Isleta. (4) Rio Grande Compact The term Rio Grande Compact means the compact approved by Congress under the Act of May 31, 1939 (53 Stat. 785, chapter 155). (5) Secretaries The term Secretaries means— (A) the Administrator of the Environmental Protection Agency; (B) the Secretary of Commerce; and (C) the Secretary of the Interior. (6) Secretary The term Secretary means the Secretary of the Interior. (7) State The term State means the State of New Mexico. 3. Water acquisition program (a) In general The Secretary, acting through the Commissioner of Reclamation, shall carry out in the Basins a water acquisition program in coordination with the other appropriate Federal agencies, State agencies, and non-Federal stakeholders, under which the Secretary shall— (1) make acquisitions of water in the Basins by lease or purchase of water rights or contractual entitlements from willing lessors or sellers, consistent with section 8 of the Act of June 17, 1902 ( 43 U.S.C. 383 ), the Rio Grande Compact, and applicable State law relating to the acquisition and administration of water rights; and (2) take any other actions, consistent with section 8 of the Act of June 17, 1902 ( 43 U.S.C. 383 ), the Rio Grande Compact, and applicable State law, that the Secretary determines would achieve the purposes of the water acquisition program described in subsection (b). (b) Purposes The purposes of the water acquisition program are— (1) to enhance stream flow to benefit fish and wildlife (including endangered species), water quality, and river ecosystem restoration in the Basins; and (2) to enhance stewardship and conservation of working land, water, and watersheds in the Basins, consistent with the purpose described in paragraph (1). (c) Coordination To assist in developing and administering the program, the Secretary may provide funds to a federally established nonprofit entity with particular expertise in western water transactions. (d) District projects Subject to the Rio Grande Compact and applicable State law, the Secretary may develop programs to provide— (1) cost-share assistance to the District or agricultural producers and irrigators in the District for making irrigation system improvements and increase system efficiency; (2) incentives to the District for the establishment of a water leasing program from willing lessors for agricultural producers and irrigators in the District to temporarily lease pre-1907 water rights (instead of permanent severance from irrigable lands) for the purpose of providing benefits to species listed under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.) and other river ecosystem benefits; and (3) cost-share assistance to the District to implement infrastructure or operational changes that will allow for effective management of a leasing program, while maintaining adequate water deliveries to other agricultural producers and irrigators. 4. Water conservation (a) In general The Secretary, in cooperation with the District and in consultation with the Pueblos, may provide funding and technical assistance for the installation of metering and measurement devices and the construction of check structures on irrigation diversions, canals, laterals, ditches, and drains— (1) to ensure the conservation and efficient use of water within the District by— (A) reducing actual consumptive use; or (B) not increasing the use of water; and (2) to improve the measurement and allocation of water acquired through the water acquisition program established under section 3. (b) Rio Grande, San Acacia and Isleta reaches (1) In general The Secretary shall provide for development of a comprehensive plan for the San Acacia and Isleta reaches to plan, design, construct and prioritize projects that balance river maintenance, water availability, use, and delivery, and ecosystem benefits, including— (A) planning, permitting, and construction of a pumping station at Bosque del Apache National Wildlife Refuge for the purpose of more efficiently using water to provide— (i) a stable supply for the refuge; and (ii) an efficient and reliable supply of water to the Rio Grande for the benefit of the endangered silvery minnow and Southwestern willow flycatcher; (B) planning, permitting, and construction of a river channel realignment project near the Rio Grande mile-83 for the purpose addressing river channel aggradation while maintaining floodplain connectivity; (C) planning, permitting, and construction of a controlled outlet for the low flow conveyance channel to the Rio Grande between Fort Craig, New Mexico and Rio Grande mile-60 for the purpose of water use and delivery, enhancement and development of habitat areas, and possible creation of a single-channel river ecosystem; and (D) development of a Lower Reach Plan— (i) to identify additional projects and maintenance activities with water use, sediment management, and delivery and ecosystem benefits; and (ii) to prioritize implementation of all projects and activities. (2) Public participation In carrying out this subsection, the Secretary shall provide a process for public participation and comment during plan development and alternative analysis. 5. Middle Rio Grande peak flow restoration (a) Temporary deviation During the 5-year period beginning on the date of enactment of this Act, the Secretary of the Army shall continue the temporary deviation in the operation of Cochiti Lake and Jemez Canyon Dam, that was initiated in 2009 and terminated in 2013, to continue to evaluate the benefits of the deviation. (b) Feasibility study and report Not later than 1 year after the date of enactment of this Act, the Secretary of the Army and the Secretary shall— (1) conduct a feasibility study to address Cochiti Dam operation limitations on the timing, magnitude, and duration of flows that support federally listed species in the Middle Rio Grande, consistent with subsection (c); and (2) submit to Congress a feasibility report on the reauthorization of the purposes of Cochiti Dam. (c) Goals The deviation described in subsection (a) shall provide for the detention and release of native Rio Grande water and San Juan-Chama Project water with the goals of— (1) restoring natural river processes to the Rio Grande, including a spring peak flow to the Rio Grande; (2) increasing the spawning and recruitment of endangered Rio Grande silvery minnows; (3) creating overbanking flows that are necessary— (A) to maintain a healthy bosque; and (B) to support habitat for the Southwestern willow flycatcher and other wildlife; (4) maintaining channel capacity; and (5) increasing water operational flexibility and efficiencies in meeting irrigation and municipal and industrial purposes, if the increased water operational flexibility and efficiencies enhance the goals described in paragraphs (1) and (4). (d) Monitoring The Secretary of the Army, in cooperation with the Secretary and other Federal and non-Federal stakeholders shall— (1) monitor the environmental effects, benefits, and results of the deviation mandated under this section; and (2) compile any data necessary to evaluate the need for further amendment to the authorizations and water control manuals for Cochiti Lake or Jemez Canyon Dam. (e) Approval required Before implementing the proposed deviation under this section, as required by the applicable water control manuals, the Secretary of the Army shall first obtain approval from— (1) Pueblo de Cochiti; (2) Pueblo of Santa Ana; and (3) the Rio Grande Compact Commission. (f) Reports The Secretary of the Army shall prepare and submit to Congress— (1) for each year in which the deviations are being carried out under this section, annual reports that describe the data compiled under subsection (d)(2); and (2) at the end of the period described in subsection (a), a final, cumulative report that summarizes the data obtained during that period. 6. National Academy of Sciences study (a) Definition of basin (1) In general In this section, the term basin means the Rio Grande and the tributaries of the Rio Grande between— (A) the headwaters of the Rio Grande and the Rio Chama in the State of Colorado; and (B) Elephant Butte Reservoir in the State. (2) Exclusions In this section, the term basin does not include Elephant Butte Reservoir, Caballo Dam, or any portion of the Rio Grande or the tributaries of the Rio Grande downstream of Elephant Butte Reservoir. (b) Study Not later than 60 days after the date of enactment of this Act, the Secretary of the Army and the Secretary shall enter into an arrangement with the National Academy of Sciences to carry out a study on water and reservoir management and operation issues in the basin (including the Heron, El Vado, Abiquiu, Cochiti, and Jemez Canyon Dams and Reservoirs), which shall include— (1) an evaluation of existing basin reservoir authorizations and legal requirements; (2) a summary of— (A) the physical-hydrologic understanding of existing basin reservoir operations; and (B) any potential constraints on basin reservoirs in light of climate change projections; (3) an identification of opportunities to optimize water storage and management to benefit the basin ecosystem, irrigators and municipal users, and to promote water conservation through reauthorization of, reoperation of, regulation of, or physical improvements to the reservoirs; (4) an evaluation of the physical-hydrologic feasibility of the identified future basin reservoir management scenarios; (5) an identification of water use, supply, and accounting impacts to other stakeholders in the State; (6) consideration of operations such as— (A) the storage of supplemental water acquired by and under the control of the Bureau of Reclamation; (B) the carryover storage of San Juan-Chama Project contract water; (C) the Pueblo Prior and Paramount operation water; (D) changes in timing of water released to offset municipal pumping; (E) changes in the timing of storage and release of floodwaters; (F) the reduction of evaporative losses from basin reservoirs; (G) conservation of water resulting from irrigation operation changes by non-Indian and Pueblo irrigators; (H) the impacts of management and operations on recreation and hydropower; (I) the impacts of management and operations on the basin ecosystem and the habitats that support species listed under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); and (J) any other factors the Academy determines to be necessary for purposes of fully evaluating opportunities to achieve greater water conservation, drought resiliency, and ecological health in the basin; and (7) recommendations for future management scenarios and measures that Congress could take with respect to the basin, consistent with all applicable law, including the Act of June 17, 1902 ( 43 U.S.C. 383 ), and the Rio Grande Compact to assist the agencies in establishing more flexible operating procedures to improve the performance of basin reservoir operations in accommodating multiple purposes. (c) Cosponsors The Secretary of the Army and the Secretary may solicit cosponsors for the study under subsection (b), as appropriate, including State or private organizations. (d) Public availability of study On the date on which the National Academy of Sciences completes the study under this section, the National Academy of Sciences shall make available to the public the results of the study. (e) Report Not later than 2 years after the date of enactment of this Act, the National Academy of Sciences shall submit to the Secretary of the Army and the Secretary a report that contains a summary of the results of the study conducted under this section. 7. Emergency funding (a) Financial assistance (1) In general Financial assistance may be made available under the Reclamation States Emergency Drought Relief Act of 1991 ( 43 U.S.C. 2201 et seq.), title XII of the Food Security Act of 1985 ( 16 U.S.C. 3801 et seq.), and any other applicable Federal law (including regulations), to each applicable program at the discretion of the Secretaries for eligible water projects to assist western States and tribal governments to address drought-related impacts to water supplies or any other immediate water-related crisis or conflict. (2) Additional availability Financial assistance may be made available under this section to organizations and entities with water delivery authority that are engaged in collaborative processes to restore the environment or are part of a basin-wide solution for restoration. (b) Types of assistance Assistance under subsection (a) may include a range of projects, including— (1) the installation of pumps, temporary barriers, or operable gates for water diversion and fish protection; (2) the installation of drought-relief groundwater wells for Indian tribes and in wildlife refuges and other areas; (3) the acquisition or assistance in the acquisition of water from willing sellers to enhance stream flow for the benefit of fish and wildlife (including endangered species), water quality, river ecosystem restoration, and other beneficial purposes, to be carried out in accordance with the water acquisition program established under section 3; (4) agricultural and urban conservation and efficiency projects; (5) exchanges with any water district willing to provide water to meet the emergency water needs of other water districts in return for the delivery of equivalent quantities of water later that year or in future years; (6) maintenance of cover crops to prevent public health impacts from severe dust storms; (7) emergency pumping projects for critical health and safety purposes; (8) activities to reduce water demand consistent with a comprehensive program for environmental restoration and settlement of water rights claims; (9) the use of new or innovative on-farm water conservation technologies or methods that may— (A) assist in sustaining permanent crops in areas with severe water shortages; and (B) make water available for other beneficial uses; (10) activities that protect, restore, or enhance fish and wildlife habitat or otherwise improve environmental conditions, including water quantity or quality concerns and improved fish passage; (11) activities reducing or preventing groundwater depletion or promoting groundwater recharge; (12) technical assistance to improve existing irrigation practices to provide water supply benefits; (13) the investigation of, and pilot projects for, brackish water development and aquifer storage and recovery; (14) the lining of irrigation ditches and canals to reduce water loss and improve efficiency; (15) assistance to municipal water management entities for water supply planning in preparation for and in response to dry, critically dry, and below normal water years, including— (A) hydrological forecasting; (B) identification of alternative water supply sources; and (C) guidance on potential water transfer partners; and (16) any other assistance the Secretary determines to be necessary to increase available water supplies, maintain the health of river ecosystems, or mitigate drought impacts. 8. Secure Water Act reauthorization Section 9504(a) of the Omnibus Public Land Management Act of 2009 ( 42 U.S.C. 10364(a) ) is amended— (1) in paragraph (1)(H)— (A) in clause (i), by striking or at the end; (B) in clause (ii), by striking the period at the end and inserting ; or ; and (C) by adding at the end the following: (iii) to plan for or address the impacts of drought. ; and (2) in paragraph (3)(E), by adding at the end the following: (v) Authority of commissioner The Commissioner of Reclamation may, at the discretion of the Commissioner, waive any cost-share requirements. . 9. Reclamation States Emergency Drought Relief Act reauthorization Section 301 of the Reclamation States Emergency Drought Relief Act of 1991 ( 43 U.S.C. 2241 ) is amended by striking 2017 and inserting 2022 . 10. Rio Grande Pueblo irrigation infrastructure reauthorization Section 9106 of the Omnibus Public Land Management Act of 2009 ( Public Law 111–11 ; 123 Stat. 1304) is amended— (1) in subsection (c)(4), by striking 2 years after the date of enactment of this Act and inserting December 31, 2018 ; and (2) in subsection (g)(2), by striking 2010 through 2019 and inserting 2017 through 2025 . 11. Regional conservation partnership program The Secretary of Agriculture may allocate financial assistance made available under subtitle I of title XII of the Food Security Act of 1985 ( 16 U.S.C. 3871 et seq.) to establish special conservation initiatives at the local, State, or regional level to assist producers in implementing eligible activities on agricultural land in the western States for the purposes of— (1) mitigating the effects of drought on agricultural production and the environment; (2) improving water quality and quantity, including reducing groundwater depletion; (3) restoring, enhancing, and preserving fish and wildlife habitat; and (4) promoting innovative and collaborative conservation tools and approaches. 12. Conservation reserve program (a) Conservation priority areas Section 1231(f) of the Food Security Act of 1985 ( 16 U.S.C. 3831(f) ) is amended— (1) in paragraph (2), by striking or and all that follows through the period at the end and inserting , water quantity, or habitat impacts related to agricultural production activities. ; (2) in paragraph (3), by striking or and all that follows through the period at the end and inserting , water quantity, or habitat impacts related to agricultural production activities. ; and (3) in paragraph (4), by striking water quality and habitat benefits and inserting water quality, water quantity, and habitat benefits . (b) Special conservation reserve enhancement program Section 1234(g)(2)(B) of the Food Security Act of 1985 ( 16 U.S.C. 3834(g)(2)(B) ) is amended by inserting , including improving water conservation and drought mitigation before the period at the end. 13. Effect on existing law (a) In general An action taken by any of the Secretaries or another entity under this Act or an amendment made by this Act shall comply with applicable State laws in effect on the date of enactment of this Act, including a law described in subsection (b). (b) State law Nothing in this Act or an amendment made by this Act affects, is intended to affect, or interferes with a law of the State relating to the control, appropriation, use, or distribution of water, or any vested right acquired under the law. (c) Rio Grande Compact Nothing in this Act or an amendment made by this Act affects or is intended to affect or interfere with any obligation of a State under the Rio Grand Compact or any litigation related to the Rio Grande Compact.