[USC02] 43 USC CHAPTER 12, SUBCHAPTER X: PAYMENT OF CONSTRUCTION CHARGES
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43 USC CHAPTER 12, SUBCHAPTER X: PAYMENT OF CONSTRUCTION CHARGES
From Title 43—PUBLIC LANDSCHAPTER 12—RECLAMATION AND IRRIGATION OF LANDS BY FEDERAL GOVERNMENT

SUBCHAPTER X—PAYMENT OF CONSTRUCTION CHARGES

§485. Declaration of policy

For the purpose of providing for United States reclamation projects a feasible and comprehensive plan for an economical and equitable treatment of repayment problems and for variable payments of construction charges which can be met regularly and fully from year to year during periods of decline in agricultural income and unsatisfactory conditions of agriculture as well as during periods of prosperity and good prices for agricultural products, and which will protect adequately the financial interest of the United States in said projects, obligations to pay construction charges may be revised or undertaken pursuant to the provisions of this subchapter.

(Aug. 4, 1939, ch. 418, §1, 53 Stat. 1187.)

References in Text

This subchapter, referred to in text, was in the original "this Act", meaning act Aug. 4, 1939, ch. 418, 53 Stat. 1187, as amended, known as the Reclamation Project Act of 1939, which enacted this subchapter, sections 375a, 380a, and 387 to 389 of this title and section 16d of former Title 41, Public Contracts, and enacted provision set out as a note under section 485j of this title. For complete classification of this Act to the Code, see section 485k of this title and Tables.

§485a. Definitions

As used in this subchapter—

(a) The term "Federal reclamation laws" shall mean the Act of June 17, 1902 (32 Stat. 388), and all Acts amendatory thereof or supplementary thereto.

(b) The term "Secretary" shall mean the Secretary of the Interior.

(c) The term "project" shall mean any reclamation or irrigation project, including incidental features thereof, authorized by the Federal reclamation laws, or constructed by the United States pursuant to said laws, or in connection with which there is a repayment contract executed by the United States, pursuant to said laws, or any project constructed or operated and maintained by the Secretary through the Bureau of Reclamation for the reclamation of arid lands or other purposes.

(d) The term "construction charges" shall mean the amounts of principal obligations payable to the United States under water-right applications, repayment contracts, orders of the Secretary, or other forms of obligation entered into pursuant to the Federal reclamation laws, excepting amounts payable for water rental or power charges, operation and maintenance and other yearly service charges, and excepting also any other operation and maintenance, interest, or other charges which are not covered into the principal sums of the construction accounts of the Bureau of Reclamation.

(e) The term "repayment contract" shall mean any contract providing for payment of construction charges to the United States.

(f) The term "project contract unit" shall mean a project or any substantial area of a project which is covered or is proposed to be covered by a repayment contract. On any project where two or more repayment contracts in part cover the same area and in part different areas, the area covered by each such repayment contract shall be a separate project contract unit. On any project where there are either two or more repayment contracts on a single project contract unit or two or more project contract units, the repayment contracts or project contract units may be merged by agreements in form satisfactory to the Secretary.

(g) The term "organization" shall mean any conservancy district, irrigation district, water users' association, or other organization, which is organized under State law and which has capacity to enter into contracts with the United States pursuant to the Federal reclamation laws.

(h) The term "division of a project" shall mean any part of a project designated as a division by order of the Secretary or any phase or feature of project operations given a separate designation as a division by order of the Secretary for the purposes of orderly and efficient administration.

(i) The term "development unit" shall mean a part of a project which, for purposes of orderly engineering or reclamation development, is designated as a development unit by order of the Secretary.

(j) The term "irrigation block" shall mean an area of arid or semiarid lands in a project in which, in the judgment of the Secretary, the irrigable lands should be reclaimed and put under irrigation at substantially the same time, and which is designated as an irrigation block by order of the Secretary.

(Aug. 4, 1939, ch. 418, §2, 53 Stat. 1187; Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543.)

References in Text

This subchapter, referred to in text, was in the original "this Act", meaning act Aug. 4, 1939, ch. 418, 53 Stat. 1187, as amended, known as the Reclamation Project Act of 1939, which enacted this subchapter, sections 375a, 380a, and 387 to 389 of this title and section 16d of former Title 41, Public Contracts, and enacted provision set out as a note under section 485j of this title. For complete classification of this Act to the Code, see section 485k of this title and Tables.

Act of June 17, 1902, referred to in subsec. (a), is popularly known as the Reclamation Act, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 371 of this title and Tables.

Amendments

1958—Subsecs. (h) to (k). Pub. L. 85–611 repealed subsec. (h) which defined "annual returns" and "normal returns", and redesignated subsecs. (i) to (k) as (h) to (j), respectively.

§485b. Amendment of existing repayment contracts

In connection with any repayment contract or other form of obligation, existing on August 4, 1939, to pay construction charges, providing for repayment on the basis of a definite period, the Secretary is authorized, upon request by the water users involved or their duly authorized representatives for amendment under this section of said contract or other form of obligation, and if in the Secretary's judgement such amendment is both practicable and in keeping with the general purpose of this subchapter, to amend said contract or other form of obligation so as to provide that the construction charges remaining unaccrued on the date of the amendment, or any later date agreed upon, shall be spread in definite annual installments on the basis of a longer definite period fixed in each case by the Secretary: Provided, That for any construction charges said longer period shall not exceed forty years, exclusive of 1931 and subsequent years to the extent of moratoria or deferments of construction charges due and payable for such years effected pursuant to Acts of Congress, from the date when the first installment of said construction charges become due and payable under the original obligation to pay said construction charges and in no event shall the unexpired part of said longer period exceed double the number of remaining years, as of the date of the amendment made pursuant to this subchapter, in which installments of said construction charges would become due and payable under said existing repayment contract or other form of obligation to pay construction charges.

(Aug. 4, 1939, ch. 418, §3, 53 Stat. 1188.)

Extension of Date of Modification of Repayment Contracts

Act Mar. 6, 1952, ch. 94, 66 Stat. 16, as amended by acts Aug. 31, 1954, ch. 1168, 68 Stat. 1044; Pub. L. 85–156, Aug. 21, 1957, 71 Stat. 390; Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543; Pub. L. 86–308, §2, Sept. 21, 1959, 73 Stat. 585, provided that the authority vested in the Secretary of the Interior by sections 485b and 485f of this title should be extended through Dec. 31, 1960.

§485b–1. Deferment of installments under repayment contracts; determination of undue burden; conditions; supplemental contract; report to Congress

(a) The authority granted in section 485b of this title for modification of existing repayment contracts or other forms of obligations to pay construction charges shall continue through December 31, 1960.

(b) The Secretary is authorized, subject to the provisions of this subsection to defer the time for the payment of such part of any installments of construction charges under any repayment contract or other form of obligation as he deems necessary to adjust such installments to amounts within the probable ability of the water users to pay. Any such deferment shall be effected only after findings by the Secretary that the installments under consideration probably cannot be paid on their due date without undue burden on the water users, considering the various factors which in the Secretary's judgment bear on the ability of the water users so to pay.

The Secretary may effect the deferments hereunder subject to such conditions and provisions relating to the operation and maintenance of the project involved as he deems to be in the interest of the United States. If, however, any deferments would affect installments to accrue more than twelve months after the action of deferment, they shall be effected only by a formal supplemental contract. Such a contract shall provide by its terms that, it being only an interim solution of the repayment problems dealt with therein, its terms are not, in themselves, to be construed as a criterion of the terms of any amendatory contract that may be negotiated and that any such amendatory contract must be approved by the Congress unless it does not lengthen the repayment period for the project in question beyond that permitted by the laws applicable to that project, involves no reduction in the total amount payable by the water users, and is not in other respects less advantageous to the Government than the existing contract arrangements. The Secretary shall report to the Congress all deferments granted under this subsection.

(Aug. 4, 1939, ch. 418, §17, 53 Stat. 1198; Apr. 24, 1945, ch. 94, §3, 59 Stat. 76; Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543; Pub. L. 86–308, §1, Sept. 21, 1959, 73 Stat. 584.)

Amendments

1959—Subsec. (b). Pub. L. 86–308 made permanent the Secretary's authority to grant deferments in payment of installments of construction charges under repayment contracts.

1958—Subsec. (a). Pub. L. 85–611 substituted "section 485b" for "sections 485b and 485c".

1945—Subsec. (a). Act Apr. 24, 1945, extended authority for modification of existing repayment contracts or other forms of obligations to pay construction charges through Dec. 31, 1950, or Dec. 31 of the fifth full calendar year after the cessation of hostilities of World War II, as determined by proclamation of the President or concurrent resolution of Congress, whichever period was the longer.

Subsec. (b). Act Apr. 24, 1945, authorized Secretary, subject to provisions of this subsection, to defer the time for the payment of such part of any installments of construction charges under any repayment contract or other form of obligation that are due and unpaid as of Apr. 24, 1945, or which would become due prior to the expiration of authority under subsec. (a).

Applicability to Other Irrigation Projects

Pub. L. 86–308, §3, Sept. 21, 1959, 73 Stat. 585, provided that: "The provisions of section 17, subsection (b), of the Reclamation Project Act of 1939 [subsec. (b) of this section], as amended by section 1 of this Act, shall apply to any project within the administrative jurisdiction of the Bureau of Reclamation to which, if it had been constructed as a project under the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 383) and Acts amendatory thereof or supplementary thereto [see Short Title note set out under section 371 of this title]), these provisions would be applicable."

§485c. Repealed. Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543

Section, acts Aug. 4, 1939, ch. 418, §4, 53 Stat. 1189; Apr. 24, 1945, ch. 94, §1, 59 Stat. 75, related to repayment contracts with the United States. See section 485h(d)(3) of this title.

§485d. Time of payments to the United States

The Secretary in this discretion may require, in connection with any contract entered into pursuant to the authority of this subchapter, that the contract provide (1) that the payments for each year to be made to the United States shall become due and payable on such date or dates, not exceeding two, in each year as the Secretary determines will be substantially contemporaneous with the time or times in each year when water users receive crop returns and (2) if the contract be with an organization, that assessments or levies for the purpose of obtaining moneys sufficient to meet the organization's payments under said contract shall be made and shall become due and payable within a certain period or periods of time prior to the date or dates on which the organization's payments to the United States are due and payable, said period or periods of time to be agreed upon in each said contract.

The Secretary may provide such deferments of construction charges as in his judgment are necessary to prevent said requirements from resulting in inequitable pyramiding of payments of said charges.

(Aug. 4, 1939, ch. 418, §5, 53 Stat. 1191.)

Extension of Secretary's Authority To Enter Into Amendatory Contracts

Secretary's authority extended through Dec. 31, 1960, see section 485b–1 of this title.

§485e. Maintenance and operation of project works; delinquency penalties

In connection with any contract, relating to construction charges, entered into pursuant to the authority of this subchapter, the Secretary is authorized to require such provisions as he deems proper to secure the adoption of proper accounting, to protect the condition of project works and to provide for the proper use thereof, and to protect project lands against deterioration due to improper use of water. Any such contract shall require advance payment of adequate operation and maintenance charges. The Secretary is further authorized, in his discretion, to require such provisions as he deems proper to penalize delinquencies in payments of construction charges or operation and maintenance charges: Provided, That in any event there shall be penalties imposed on account of delinquencies of not less than one-half of 1 per centum per month of the delinquent charge from and after the date when such charge becomes due and payable: Provided further, That any such contract shall require that no water shall be delivered to lands or parties which are in arrears in the advance payment of operation and maintenance or toll charges, or to lands or parties which are in arrears for more than twelve months in the payment of construction charges due from such lands or parties to the United States or to the organization in which the lands or parties are included, or to any lands or parties included in an organization which is in arrears in the advance payment of operation and maintenance or toll charges or in arrears more than twelve months in the payment of construction charges due from such organization to the United States.

(Aug. 4, 1939, ch. 418, §6, 53 Stat. 1191.)

§485f. Negotiation of equitable contracts by Secretary

(a) Existing project contract unit

The Secretary is authorized and directed to investigate the repayment problems of any existing project contract unit in connection with which, in his judgment, a contract under section 485b or 485c 1 of this title would not be practicable nor provide an economically sound adjustment, and to negotiate a contract which, in his judgment, both would provide fair and equitable treatment of the repayment problems involved and would be in keeping with the general purpose of this subchapter.

(b) New projects or projects under construction; public lands; development periods

For any project, division of a project, development unit of a project, or supplemental works on a project, under construction on August 4, 1939, or for which appropriations had been made, and in connection with which a repayment contract had not been executed, allocations of costs may be made in accordance with the provisions of section 485h of this title and a repayment contract may be negotiated, in the discretion of the Secretary, (1) pursuant to the authority of subsection (a) of this section or (2) in accordance, as near as may be, with the provisions in section 485h(d) or 485h(e) of this title. In connection with any such project, division, or development unit, on which the majority of the lands involved are public lands of the United States, the Secretary, prior to entering into a repayment contract, may fix a development period for each irrigation block, if any, of not to exceed ten years from and including the first year in which water is delivered for the lands in said block: Provided, That in the event a development period is fixed prior to execution of a repayment contract, execution thereof shall be a condition precedent to delivery of water after the close of the development period. During any such development period water shall be delivered to the lands in the irrigation block involved only on a toll-charge basis, at a charge per annum per acre-foot to be fixed by the Secretary each year and to be collected in advance of delivery of water. Pending negotiation and execution of a repayment contract for any other such project, division, or development unit, water may be delivered for a period of not more than five years from August 4, 1939, on the same toll-charge basis. Any such toll charges collected and which the Secretary determines to be in excess of the cost of operation and maintenance during the toll-charge period shall be credited to the construction cost of the project in the manner determined by the Secretary.

(c) Report of proposed contracts to Congress; approval; amendment after approval

The Secretary from time to time shall report to the Congress on any proposed contracts negotiated pursuant to the authority of subsection (a) or (b)(1) of this section, and he may execute any such contract on behalf of the United States only after approval thereof has been given by Act of Congress. Contracts, so approved, however, may be amended from time to time by mutual agreement and without further approval by Congress if such amendments are within the scope of authority granted prior to or after April 24, 1945, to the Secretary under any Act, except that amendments providing for repayment of construction charges in a period of years longer than authorized by this subchapter, as it may be amended, shall be effective only when approved by Congress.

(Aug. 4, 1939, ch. 418, §7, 53 Stat. 1192; Apr. 24, 1945, ch. 94, §2, 59 Stat. 76.)

References in Text

Section 485c of this title, referred to in subsec. (a), was repealed by Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543.

Amendments

1945—Subsec. (c). Act Apr. 24, 1945, added second sentence.

Extension of Secretary's Authority To Enter Into Amendatory Contracts

Secretary's authority extended through Dec. 31, 1960, see section 485b–1 of this title.

1 See References in Text note below.

§485g. Classification of lands

(a) Generally

The Secretary is authorized and directed in the manner hereinafter provided to classify or to reclassify, from time to time but not more often than at five-year intervals, as to irrigability and productivity those lands which have been, are, or may be included within any project.

(b) Necessity for request

No classification or reclassification pursuant to the authority of this subchapter shall be undertaken unless a request therefor, by an organization or duly authorized representatives of the water users, in the form required by subsection (c) of this section has been made of the Secretary. The Secretary shall plan the classification work, undertaken pursuant to the authority of this section, in such manner as in his judgment will result in the most expeditious completion of the work.

(c) Furnishing data

In any request made to the Secretary for a land classification or reclassification under this section, the organization or representatives of the water users shall furnish a list of those lands which are considered to be of comparatively low productivity or to be nonproductive, and of those lands which are considered to be of greater or lesser productivity than indicated by existing classifications, if any, made pursuant to the Federal reclamation laws, and shall furnish also such data relating thereto as the Secretary by regulation may require.

(d) Primary determination

Upon receipt of any such request the Secretary shall make a preliminary determination whether the requested land classification or reclassification probably is justified by reason of the conditions of the lands involved and other pertinent conditions of the project, including its contractual relations with the United States.

(e) Probable justification

If the Secretary finds probable justification and if the advance to the United States hereinafter required is made, he shall undertake as soon as practicable the classification or reclassification of the lands listed in the request, and of any other lands which have been, are, or may be included within the project involved and which in his judgment should be classified or reclassified.

(f) Expenses

One-half of the expense involved in any classification work undertaken pursuant to this section shall be charged to operation and maintenance administration nonreimbursable; and one-half shall be paid in advance by the organization involved. On determining probable justification for the requested classification or reclassification as provided in this section, the Secretary shall estimate the cost of the work involved and shall submit a statement of the estimated cost to said organization. Said organization, before commencement of the work, shall advance to the United States one-half of the amount set forth in said statement and also shall advance one-half of the amount of supplementary estimates of costs which the Secretary may find it necessary to make from time to time during the progress of the work; and said amounts shall be and remain available for expenditure by the Secretary for the purposes for which they are advanced, until the work is completed or abandoned. After completion or abandonment of the work, the Secretary, shall determine the actual costs thereof; and said organization shall pay any additional amount required to make its total payments hereunder equal to one-half of the actual cost or shall be credited with any amount by which advances made by it exceed one-half of said actual cost, as the case may be.

(g) Classification as prerequisite to contract

If in the judgment of the Secretary a classification or reclassification pursuant to the provisions of this section is a necessary preliminary to entering into a contract under section 485b or 485c 1 of this title, he may require the same as a condition precedent to entering into such a contract.

(h) Modification of existing obligations

No modification of any existing obligation to pay construction charges on any project shall be made by reason of any classification or reclassification undertaken pursuant to this section without express authority therefor granted by Congress upon recommendations of the Secretary made in a report under subsection (f) of this section.

(Aug. 4, 1939, ch. 418, §8, 53 Stat. 1192; Pub. L. 93–608, §1(18), Jan. 2, 1975, 88 Stat. 1970.)

References in Text

The Federal reclamation laws, referred to in subsec. (c), are defined in section 485a of this title.

Section 485c of this title, referred to in subsec. (g), was repealed by Pub. L. 85–611, §3, Aug. 8, 1958, 72 Stat. 543.

Amendments

1975—Subsecs. (f) to (i). Pub. L. 93–608 redesignated subsecs. (g) to (i) as (f) to (h), respectively. Former subsec. (f), which required a report to Congress by the Secretary on classifications and reclassifications or project lands, was struck out.

1 See References in Text note below.

§485h. New projects; sale of water and electric power; lease of power privileges

(a) Findings of Secretary

No expenditures for the construction of any new project, new division of a project, or new supplemental works on a project shall be made, nor shall estimates be submitted therefor, by the Secretary until after he has made an investigation thereof and has submitted to the President and to the Congress his report and findings on—

(1) the engineering feasibility of the proposed construction;

(2) the estimated cost of the proposed construction;

(3) the part of the estimated cost which can properly be allocated to irrigation and probably be repaid by the water users;

(4) the part of the estimated cost which can properly be allocated to power and probably be returned to the United States in net power revenues;

(5) the part of the estimated cost which can properly be allocated to municipal water supply or other miscellaneous purposes and probably be returned to the United States.


If the proposed construction is found by the Secretary to have engineering feasibility and if the repayable and returnable allocations to irrigation, power, and municipal water supply or other miscellaneous purposes found by the Secretary to be proper, together with any allocation to flood control or navigation made under subsection (b) of this section, equal the total estimated cost of construction as determined by the Secretary, then the new project, new division of a project, or supplemental works on a project, covered by his findings, shall be deemed authorized and may be undertaken by the Secretary. If all such allocations do not equal said total estimated cost, then said new project, new division, or new supplemental works may be undertaken by the Secretary only after provision therefor has been made by Act of Congress enacted after the Secretary has submitted to the President and the Congress the report and findings involved.

(b) Allocation of part of cost to flood control or navigation

In connection with any new project, new division of a project, or supplemental works on a project there may be allocated to flood control or navigation the part of said total estimated cost which the Secretary may find to be proper. Items for any such allocations made in connection with projects which may be undertaken pursuant to subsection (a) of this section shall be included in the estimates of appropriations submitted by the Secretary for said projects, and funds for such portions of the projects shall not become available except as directly appropriated or allotted to the Department of the Interior. In connection with the making of such an allocation, the Secretary shall consult with the Chief of Engineers and the Secretary of the Army, and may perform any of the necessary investigations or studies under a cooperative agreement with the Secretary of the Army. In the event of such an allocation the Secretary of the Interior shall operate the project for purposes of flood control or navigation, to the extent justified by said allocation therefor.

(c) Furnishing water to municipalities; sale of electric power; lease of power privileges

(1) The Secretary is authorized to enter into contracts to furnish water for municipal water supply or miscellaneous purposes: Provided, That any such contract either (A) shall require repayment to the United States, over a period of not to exceed forty years from the year in which water is first delivered for the use of the contracting party, with interest not exceeding the rate of 3½ per centum per annum if the Secretary determines an interest charge to be proper, of an appropriate share as determined by the Secretary of that part of the construction costs allocated by him to municipal water supply or other miscellaneous purposes; or (B) shall be for such periods, not to exceed forty years, and at such rates as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, and shall require the payment of said rates each year in advance of delivery of water for said year. Any sale of electric power or lease of power privileges, made by the Secretary in connection with the operation of any project or division of a project, shall be for such periods, not to exceed forty years, and at such rates as in his judgment will produce power revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost, interest on an appropriate share of the construction investment at not less than 3 per centum per annum, and such other fixed charges as the Secretary deems proper: Provided further, That in said sales or leases preference shall be given to municipalities and other public corporations or agencies; and also to cooperatives and other nonprofit organizations financed in whole or in part by loans made pursuant to the Rural Electrification Act of 1936 [7 U.S.C. 901 et seq.]. Nothing in this subsection shall be applicable to provisions in existing contracts, made pursuant to law, for the use of power and miscellaneous revenues of a project for the benefit of users of water from such project. The provisions of this subsection respecting the sales of electric power and leases of power privileges shall be an authorization in addition to and alternative to any authority in existing laws related to particular projects, including small conduit hydropower development. No contract relating to municipal water supply or miscellaneous purposes or to electric power or power privileges shall be made unless, in the judgment of the Secretary, it will not impair the efficiency of the project for irrigation purposes.

(2)(A) When carrying out this subsection, the Secretary shall first offer the lease of power privilege to an irrigation district or water users association operating the applicable transferred conduit, or to the irrigation district or water users association receiving water from the applicable reserved conduit. The Secretary shall determine a reasonable time frame for the irrigation district or water users association to accept or reject a lease of power privilege offer for a small conduit hydropower project.

(B) If the irrigation district or water users association elects not accept 1 a lease of power privilege offer under subparagraph (A), the Secretary shall offer the lease of power privilege to other parties in accordance with this subsection.

(3) The Bureau of Reclamation shall apply its categorical exclusion process under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to small conduit hydropower development under this subsection, excluding siting of associated transmission facilities on Federal lands.

(4) The Power Resources Office of the Bureau of Reclamation shall be the lead office of small conduit hydropower policy and procedure-setting activities conducted under this subsection.

(5) Nothing in this subsection shall obligate the Western Area Power Administration, the Bonneville Power Administration, or the Southwestern Power Administration to purchase or market any of the power produced by the facilities covered under this subsection and none of the costs associated with production or delivery of such power shall be assigned to project purposes for inclusion in project rates.

(6) Nothing in this subsection shall alter or impede the delivery and management of water by Bureau of Reclamation facilities, as water used for conduit hydropower generation shall be deemed incidental to use of water for the original project purposes. Lease of power privilege shall be made only when, in the judgment of the Secretary, the exercise of the lease will not be incompatible with the purposes of the project or division involved, nor shall it create any unmitigated financial or physical impacts to the project or division involved. The Secretary shall notify and consult with the irrigation district or water users association operating the transferred conduit before offering the lease of power privilege and shall prescribe terms and conditions that will adequately protect the planning, design, construction, operation, maintenance, and other interests of the United States and the project or division involved.

(7) Nothing in this subsection shall alter or affect any existing agreements for the development of conduit hydropower projects or disposition of revenues.

(8) Nothing in this subsection shall alter or affect any existing preliminary permit, license, or exemption issued by the Federal Energy Regulatory Commission under Part I of the Federal Power Act (16 U.S.C. 792 et seq.) or any project for which an application has been filed with the Federal Energy Regulatory Commission as of August 9, 2013.

(9) In this subsection:

(A) Conduit.—The term "conduit" means any Bureau of Reclamation tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.

(B) Irrigation district.—The term "irrigation district" means any irrigation, water conservation or conservancy, multicounty water conservation or conservancy district, or any separate public entity composed of two or more such districts and jointly exercising powers of its member districts.

(C) Reserved conduit.—The term "reserved conduit" means any conduit that is included in project works the care, operation, and maintenance of which has been reserved by the Secretary, through the Commissioner of the Bureau of Reclamation.

(D) Transferred conduit.—The term "transferred conduit" means any conduit that is included in project works the care, operation, and maintenance of which has been transferred to a legally organized water users association or irrigation district.

(E) Small conduit hydropower.—The term "small conduit hydropower" means a facility capable of producing 5 megawatts or less of electric capacity.

(d) Delivery of water for irrigation; repayment contract prerequisites

No water may be delivered for irrigation of lands in connection with any new project, new division of a project, or supplemental works on a project until an organization, satisfactory in form and powers to the Secretary, has entered into a repayment contract with the United States, in a form satisfactory to the Secretary, providing among other things—

(1) That the Secretary may fix a development period for each irrigation block, if any, of not to exceed ten years from and including the first calendar year in which water is delivered for the lands in said block; and that during the development period water shall be delivered to the lands in the irrigation block involved at a charge per annum per acre-foot, or other charge, to be fixed by the Secretary each year and to be paid in advance of delivery of water: Provided, That where the lands included in an irrigation block are for the most part lands owned by the United States, the Secretary, prior to execution of a repayment contract, may fix a development period, but in such case execution of such a contract shall be a condition precedent to delivery of water after the close of the development period: Provided further, That when the Secretary, by contract or by notice given thereunder, shall have fixed a development period of less than ten years, and at any time thereafter but before commencement of the repayment period conditions arise which in the judgment of the Secretary would have justified the fixing of a longer period, he may amend such contract or notice to extend such development period to a date not to exceed ten years from its commencement, and in a case where no development period was provided, he may amend such contract within the same limits: Provided further, That when the Secretary shall have deferred the payment of all or any part of any installments of construction charges under any repayment contract pursuant to the authority of the Act of September 21, 1959 (73 Stat. 584), he may, at any time prior to the due date prescribed for the first installment not reduced by such deferment, and by agreement with the contracting organization, terminate the supplemental contract by which such deferment was effected, credit the construction payments made, and exercise the authority granted in this section. After the close of the development period, any such charges collected and which the Secretary determines to be in excess of the cost of the operation and maintenance during the development period shall be credited to the construction cost of the project in the manner determined by the Secretary.

(2) That the part of the construction costs allocated by the Secretary to irrigation shall be included in a general repayment obligation of the organization; and that the organization may vary its distribution of construction charges in a manner that takes into account the productivity of the various classes of lands and the benefits accruing to the lands by reason of the construction: Provided, That no distribution of construction charges over the lands included in the organization shall in any manner be deemed to relieve the organization or any party or any land therein of the organization's general obligation to the United States.

(3) That the general repayment obligation of the organization shall be spread in annual installments, of the number and amounts fixed by the Secretary, over a period of not more than 40 years, exclusive of any development period fixed under paragraph (1) of this subsection, for any project contract unit or, if the project contract unit be divided into two or more irrigation blocks, for any such block, or as near to said period of not more than forty years as is consistent with the adoption and operation of a variable payment formula which, being based on full repayment within such period under average conditions, permits variance in the required annual payments in the light of economic factors pertinent to the ability of the organization to pay.

(4) That the first annual installment for any project contract unit, or for any irrigation block, as the case may be, shall accrue, on the date fixed by the Secretary, in the year after the last year of the development period or, if there be not development period, in the calendar year after the Secretary announces that the construction contemplated in the repayment contract is substantially completed or is advanced to a point where delivery of water can be made to substantially all of the lands in said unit or block to be irrigated; and if there be no development period fixed, that prior to and including the year in which the Secretary makes said announcement water shall be delivered only on the toll charge basis hereinbefore provided for development periods.

(e) Contracts to furnish water

In lieu of entering into a repayment contract pursuant to the provisions of subsection (d) of this section to cover that part of the cost of the construction of works connected with water supply and allocated to irrigation, the Secretary, in his discretion, may enter into either short- or long-term contracts to furnish water for irrigation purposes. Each such contract shall be for such period, not to exceed forty years, and at such rates as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation; and shall require payment of said rates each year in advance of delivery of water for said year. In the event such contracts are made for furnishing water for irrigation purposes, the costs of any irrigation water distribution works constructed by the United States in connection with the new project, new division of a project, or supplemental works on a project, shall be covered by a repayment contract entered into pursuant to said subsection (d).

(f) Public participation

No less than sixty days before entering into or amending any repayment contract or any contract for the delivery of irrigation water (except any contract for the delivery of surplus or interim irrigation water whose duration is for one year or less) the Secretary shall—

(1) publish notice of the proposed contract or amendment in newspapers of general circulation in the affected area and shall make reasonable efforts to otherwise notify interested parties which may be affected by such contract or amendment, together with information indicating to whom comments or inquiries concerning the proposed actions can be addressed; and

(2) provide an opportunity for submission of written data, views and arguments, and shall consider all substantive comments so received.

(Aug. 4, 1939, ch. 418, §9, 53 Stat. 1193; July 26, 1947, ch. 343, title II, §205(a), 61 Stat. 501; Pub. L. 85–611, §§1, 3, Aug. 8, 1958, 72 Stat. 542, 543; Pub. L. 87–613, §2, Aug. 28, 1962, 76 Stat. 407; Pub. L. 97–293, title II, §226, Oct. 12, 1982, 96 Stat. 1273; Pub. L. 113–24, §2, Aug. 9, 2013, 127 Stat. 498.)

References in Text

The Rural Electrification Act of 1936, referred to in subsec. (c)(1), is act May 20, 1936, ch. 432, 49 Stat. 1363, as amended, which is classified generally to chapter 31 (§901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of Title 7 and Tables.

The National Environmental Policy Act of 1969, referred to in subsec. (c)(3), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The Federal Power Act, referred to in subsec. (c)(8), is act June 10, 1920, ch. 285, 41 Stat. 1063. Part I of the Act is classified generally to subchapter I (§791a et seq.) of chapter 12 of Title 16, Conservation. For complete classification of this Act to the Code, see section 791a of Title 16 and Tables.

Act of September 21, 1959, referred to in subsec. (d)(1), is Pub. L. 86–308, Sept. 21, 1959, 73 Stat. 584, which amended section 485b–1 of this title, enacted provisions set out as a note under section 485b–1 of this title, and amended provisions set out as a note under section 485b of this title. For complete classification of this Act to the Code, see Tables.

Amendments

2013—Subsec. (c). Pub. L. 113–24 designated existing provisions as par. (1) and redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), substituted "respecting the sales of electric power and leases of power privileges shall be an authorization in addition to and alternative to any authority in existing laws related to particular projects, including small conduit hydropower development" for "respecting the terms of sales of electric power and leases of power privileges shall be in addition and alternative to any authority in existing laws relating to particular projects", and added pars. (2) to (9).

1982—Subsec. (f). Pub. L. 97–293 added subsec. (f).

1962—Subsec. (d)(1). Pub. L. 87–613 authorized the Secretary, when a development period of less than ten years was fixed by contract and, before repayment period conditions arose which would justify a longer period, to amend such contract to extend such period to not exceed ten years from its start, and where no period was provided, to grant a period not to exceed ten years, and where he deferred payment of any construction charges pursuant to act of September 21, 1959, authorized him, prior to the due date of the first installment not reduced by such deferment, by agreement with the contracting organization, to terminate the supplemental contract by which such deferment was effected, credit the construction payments made, and exercise the authority granted in this section.

1958—Subsec. (d)(3). Pub. L. 85–611, §1, permitted the general repayment obligation to be spread in annual installments as near to the period of not more than 40 years as is consistent with the adoption and operation of a variable payment formula which permits variance in the required annual payments.

Subsec. (d)(5). Pub. L. 85–611, §3, struck out provisions which required repayment contracts to provide that each year the installment of the organization's repayment obligation scheduled for such year shall be the construction charges due and payable for such year, or that each year the installment for such year of the organization's repayment obligation shall be increased or decreased on the basis of the normal and percentages plan provided in former section 485c of this title for modification of existing obligations to pay construction charges, and the amount of the annual installment, as thus increased or decreased, shall be the construction charges due and payable for such year.

Change of Name

Department of War designated Department of the Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947, ch. 343, title II, 61 Stat. 501. Section 205(a) of act July 26, 1947, was repealed by section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted "Title 10, Armed Forces" which in sections 3010 to 3013 continued Department of the Army under administrative supervision of Secretary of the Army.

Construction With Section 101–1 of Title 33

Section as amended and modified by act Dec. 22, 1944, ch. 665, §1(c), 58 Stat. 665, see section 701–1(c) of Title 33, Navigation and Navigable Waters.

Municipal, Domestic, and Industrial Water Supply Contracts; Renewals; Conforming Amendments to Existing Contracts; "Long-Term Contract" Defined

Pub. L. 88–44, June 21, 1963, 77 Stat. 68, provided: "That the Secretary of the Interior shall, upon request of the other party to any long-term contract for municipal, domestic, or industrial water supply hereafter entered into under clause (2) in the proviso to the first sentence of section 9, subsection (c), of the Reclamation Project Act of 1939 (53 Stat. 1195, 43 U.S.C. 485h), include provision for renewal thereof subject to renegotiation of (1) the charges set forth in the contract in the light of circumstances prevailing at the time of renewal and (2) any other matters with respect to which the right to renegotiate is reserved in the contract. Any right of renewal shall be exercised within such reasonable time prior to the expiration of the contract as the parties shall have agreed upon and set forth therein.

"Sec. 2. The Secretary shall also, upon like request, provide in any such long-term contract or in any contract entered into under clause (1) of the proviso aforesaid that the other party to the contract shall, during the term of the contract and of any renewal thereof and subject to fulfillment of all obligations thereunder, have a first right for the purposes stated in the contract (to which right the holders of any other type of contract for municipal, domestic, or industrial water supply shall be subordinate) to a stated share or quantity of the project's water supply available for municipal, domestic, or industrial use.

"Sec. 3. The Secretary is hereby authorized, upon request by the other party, to negotiate amendments to existing contracts entered into pursuant to the first sentence of section 9, subsection (c), of the Reclamation Project Act of 1939 [subsec. (c) of this section] to conform said contracts to the provisions of this Act.

"Sec. 4. As used in this Act, the term 'long-term contract' means any contract the term of which is more than ten years."

Extension of Variable Payment Plan to Other Organizations

Pub. L. 85–611, §2, Aug. 8, 1958, 72 Stat. 542, provided that: "The benefits of a variable payment plan as provided in the amendment to paragraph (3) of section 9, subsection (d), of the Reclamation Project Act of 1939 [subsec. (d)(3) of this section] contained in section 1 of this Act may be extended by the Secretary to any organization with which he contracts or has contracted for the repayment of construction costs allocated to irrigation on any project undertaken by the United States, including contracts under the Act of August 11, 1939 (53 Stat. 1418), as amended [section 590y et seq. of Title 16, Conservation], and contracts for the storage of water or for the use of stored water under section 8 of the Act of December 22, 1944 (58 Stat. 887, 891) [section 390 of this title]. In the case of any project for which a maximum repayment period longer than that prescribed in said paragraph (3) has been or is allowed by Act of Congress, the period so allowed may be used by the Secretary in lieu of the forty-year period provided in said amendment to paragraph (3)."

1 So in original. Probably should be preceded by "to".

§485h–1. Administration of repayment contracts and long-term contracts to furnish water; renewal and conversion; credit for payments; right to available water supply; rates; construction component

In administering subsections (d) and (e) of section 485h of this title, the Secretary of the Interior shall—

(1) include in any long-term contract hereafter entered into under subsection (e) of section 485h of this title provision, if the other contracting party so requests, for renewal thereof under stated terms and conditions mutually agreeable to the parties. Such terms and conditions shall provide for an increase or decrease in the charges set forth in the contract to reflect, among other things, increases or decreases in construction, operation, and maintenance costs and improvement or deterioration in the party's repayment capacity. Any right of renewal shall be exercised within such reasonable time prior to the expiration of the contract as the parties shall have agreed upon and set forth therein;

(2) include in any long-term contract hereafter entered into under subsection (e) of section 485h of this title with a contracting organization provision, if the organization so requests, for conversion of said contract, under stated terms and conditions mutually agreeable to the parties, to a contract under subsection (d) of section 485h of this title at such time as, account being taken of the amount credited to return by the organization as hereinafter provided, the remaining amount of construction cost which is properly assignable for ultimate return by it can probably be repaid to the United States within the term of a contract under subsection (d) of section 485h of this title;

(3) credit each year to every party which has entered into or which shall enter into a long-term contract pursuant to subsection (e) of section 485h of this title so much of the amount paid by said party on or before the due date as is in excess of the share of the operation and maintenance costs of the project which the Secretary finds is properly chargeable to that party. Credit for payments heretofore made under any such contract shall be established by the Secretary as soon after July 2, 1956 as it is feasible for him to do so. After the sum of such credits is equal to the amount which would have been for repayment by the party if a repayment contract under subsection (d) of section 485h of this title had been entered into, which amount shall be established by the Secretary upon completion of the project concerned or as far in advance thereof as is feasible, no construction component shall be included in any charges made for the furnishing of water to the contracting party and any charges theretofore fixed by contract or otherwise shall be reduced accordingly;

(4) provide that the other party to any contract entered into pursuant to subsection (d) of section 485h of this title or to any long-term contract entered into pursuant to subsection (e) of section 485h of this title shall, during the term of the contract and of any renewal thereof and subject to fulfillment of all obligations thereunder, have a first right (to which right the rights of the holders of any other type of irrigation water contract shall be subordinate) to a stated share or quantity of the project's available water supply for beneficial use on the irrigable lands within the boundaries of, or owned by, the party and a permanent right to such share or quantity upon completion of payment of the amount assigned for ultimate return by the party subject to payment of an appropriate share of such costs, if any, as may thereafter be incurred by the United States in its operation and maintenance of the project works; and 1

(5) Provide 2 for payment of rates under any contract entered into pursuant to said subsection (e) in advance of delivery of water on an annual, semiannual, bimonthly, or monthly basis as specified in the contract.3

(6) include a reasonable construction component in the rates set out in any long-term contract hereafter entered into under subsection (e) of section 485h of this title prior to amortization of that part of the cost of constructing the project which is assigned to be repaid by the contracting party.

(July 2, 1956, ch. 492, §1, 70 Stat. 483; Pub. L. 96–375, §8, Oct. 3, 1980, 94 Stat. 1507.)

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

Amendments

1980—Cl. (5). Pub. L. 96–375 authorized payments on a bimonthly and monthly basis.

1 So in original. The word "and" probably should not appear.

2 So in original. Probably should not be capitalized.

3 So in original. The period probably should be "; and".

§485h–2. Amendments to existing contracts

The Secretary is authorized to negotiate amendments to existing contracts entered into pursuant to subsection (e) of section 485h of this title to conform said contracts to the provisions of sections 485h–1 to 485h–5 of this title.

(July 2, 1956, ch. 492, §2, 70 Stat. 484.)

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485h–3. "Long-term contract" defined

As used in sections 485h–1 to 485h–5 of this title, the term "long-term contract" shall mean any contract the term of which is more than ten years.

(July 2, 1956, ch. 492, §3, 70 Stat. 484.)

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485h–4. Application of State laws

Nothing in sections 485h–1 to 485h–5 of this title shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary in carrying out the provisions of such sections, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of such sections shall be appurtenant to the land irrigated and beneficial use shall be the basis, the measure, and the limit of the right.

(July 2, 1956, ch. 492, §4, 70 Stat. 484.)

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485h–5. Supplement to Federal reclamation laws

Sections 485h–1 to 485h–5 of this title shall be a supplement to the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or supplementary thereto).

(July 2, 1956, ch. 492, §5, 70 Stat. 484.)

References in Text

Act of June 17, 1902, referred to in text, is popularly known as the Reclamation Act, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 371 of this title and Tables.

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485h–6. Repayment contracts; amendment for provision, addition or modification of irrigation blocks

After the execution of a contract pursuant to the authority of section 9(d)(1) of the Reclamation Project Act of 1939 [43 U.S.C. 485h(d)(1)] and prior to the commencement of the development period provided thereunder, the Secretary of the Interior is authorized to amend such contract to provide for irrigation blocks, or if such are already provided, to add to or modify such irrigation blocks, as he shall deem desirable to carry out the purposes of that Act.

(Pub. L. 87–613, §1, Aug. 28, 1962, 76 Stat. 407.)

References in Text

That Act, referred to in text, means act Aug. 4, 1939, ch. 418, 53 Stat. 1187, as amended, which enacted this subchapter, sections 375a, 380a, and 387 to 389 of this title and section 16d of former Title 41, Public Contracts, and enacted provision set out as a note under section 485j of this title. For complete classification of this Act to the Code, see section 485k of this title and Tables.

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485h–7. Amendment of repayment contract for payment of annual installments in two parts

In any repayment contract which provides for payment of construction charges by single annual installments, the Secretary may by agreement with the contracting organization amend such contract to provide for the payment of such annual installments in two parts on such dates in the calendar year as may best enable the contracting organization to meet its payments.

(Pub. L. 87–613, §3, Aug. 28, 1962, 76 Stat. 408.)

Codification

Section was not enacted as part of the Reclamation Project Act of 1939 which comprises this subchapter.

§485i. Rules and regulations

The Secretary is authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this subchapter into full force and effect.

(Aug. 4, 1939, ch. 418, §15, 53 Stat. 1198.)

§485j. Effect on existing laws

The provisions of previous Acts of Congress not inconsistent with the provisions of this subchapter shall remain in full force and effect.

(Aug. 4, 1939, ch. 418, §16, 53 Stat. 1198.)

Construction With Other Laws

Act Aug. 4, 1939, ch. 418, §18, 53 Stat. 1198, provided that: "Nothing in this Act [see section 485k of this title] shall be construed to amend the Boulder Canyon Project Act (45 Stat. 1057), as amended [section 617 et seq. of this title]."

§485k. Short title

This subchapter may be cited as the "Reclamation Project Act of 1939."

(Aug. 4, 1939, ch. 418, §19, 53 Stat. 1198.)

References in Text

This subchapter, referred to in text, was in the original "this Act", meaning act Aug. 4, 1939, ch. 418, 53 Stat. 1187, as amended, which enacted this subchapter, sections 375a, 380a, and 387 to 389 of this title and section 16d of former Title 41, Public Contracts, and enacted provision set out as a note under section 485j of this title. For complete classification of this Act to the Code, see Tables.

Short Title of 2013 Amendment

Pub. L. 113–24, §1, Aug. 9, 2013, 127 Stat. 498, provided that: "This Act [amending section 485h of this title] may be cited as the 'Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act'."