Green Money for Western Waters: New Environmental Grants and Federal Water Policy

• Date: 01 January 2024
• Author: Reed D. Benson

54 ELR 10040ENVIRONMENTAL LAW REPORTER 12024

GREEN MONEY FOR WESTERN

WATERS: NEW ENVIRONMENTAL

GRANTS AND FEDERAL WATER POLICY

by Reed D. Benson

Reed D. Benson is Professor of Law and Director of the Natural Resources and

Environmental Law Program at the University of New Mexico School of Law.

The U.S. Congress in the 2020s has established new

federal grant programs to begin addressing envi-

ronmental problems aecting waters in the Ameri-

can West, and has appropriated hundreds of millions of

dollars in funding for t hese programs.1 us, Congress has

provided tools and resources that could help undo some

of the environmental harms caused by intensive water

development and management in the West. Federal fund-

ing for restoring degraded waterways is both appropriate

and overdue, since much of the environmental damage was

done by dams authorized by Congress and built by federal

agencies in the 20th century.

e U.S. Bureau of Reclamation is the agency most

responsible for constructing and operating dams in the

West, primarily for purposes of water supply and hydro-

1. See infra Section I.A (describing authorizing statutes for three programs);

Section I.B (explaining multi-year funding of $450 million for the three

programs combined).

power. e Bureau built hundreds of dams across the

region, including huge and famous ones like Hoover and

Grand Coulee, earning a major reputation for both engi-

neering achievement and environmental destruction. It

still operates many of these da ms, and proudly touts its role

as the nation’s largest water wholesaler and second-largest

generator of hydropower.2

It may seem surprising, then, that the agency respon-

sible for implementing the new environmental grant pro-

grams is that sa me Bureau of Reclamation. Environmental

grantmaki ng is indeed a remarkable new role for an agency

that built its reputation in concrete, and whose logo (since

the Donald Trump Administration) shows water owing

through an ang ular engineered structure.3 But the Bu reau’s

mission has been changing since major dam construction

ended around 1980, and the past 30 years have brought new

policy tools and a mission far broader than simply deliver-

ing water and power. While it still maintains and operates

many of the dams it built in the past century, the Bureau’s

expanded role now includes promoting drought resiliency,

water conservation, and climate adaptation through grants

2. U.S. Bureau of Reclamation, About Us—Mission, https://www.usbr.gov/

main/about/mission.html (last updated Aug. 4, 2023).

3. U.S. Bureau of Reclamation, Background Images, https://usbr.gov/history/

logo.html (last updated June 9, 2020) (showing logos over time, with the

current one dating to 2019).

SUMMARY

Congress in the 2020s has authorized three new environmentally focused grant programs relating to western

waters and appropriated $450 million in multi-year funding. The Bureau of Reclamation is responsible for creat-

ing and implementing these programs, giving it a new tool and resources for addressing stubborn environmental

problems—some caused by the Bureau’s many dams. These programs are part of a larger trend of Congress

authorizing and funding new grant programs across the government, and while competitive grant programs can

incentivize and fund good works, they also raise policy concerns. This Article examines the statutes authorizing

these new environmental grants, the funding provided, and the Bureau’s early actions to implement them. It then

examines policy choices made by Congress and the Bureau in establishing the environmental grant programs,

and concludes by assessing what the programs might mean for the western water environment, for the Bureau

itself, and for federal water policy.

Author’s Note: The author thanks the University of New

Mexico (UNM) School of Law for its support of the work

that went into this Article; Katherine Tara, UNM Law Class

of 2023, for her excellent research assistance; and espe-

cially the current and former federal officials who generously

shared their time, information, and insights on the Bureau of

Reclamation’s environmental grant programs. All errors of

omission, commission, or judgment are the author’s alone.

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

12024 ENVIRONMENTAL LAW REPORTER 54 ELR 10041

and other forms of assistance, making the agency a logical

choice to run the new environmental grant programs.4

Implementing these programs, however, brings signi-

cant challenges. Although the Bureau has operated some

relatively modest grant programs for much of the 21st cen-

tury, it now must gear up to disburse far more grant money

than it ever did before, much of it through programs that

are still being developed. Because Congress authorized

these programs without much detail on many key points,

the Bureau has been allowed—and eectively required—

to make major policy calls without clear statutory direc-

tion. And the Bureau must launch these program s at a time

when it must also focus on major conicts—most fa mously

in the Colorado River Basin— driven by drought and long-

standing overallocat ion of water in many parts of the West.

Congress has now invested nearly ha lf a billion taxpayer

dollars into addressing environmental problems facing

western waters through federal grants, and has charged

the Bureau with setting up and carrying out the grant

programs. ese new responsibilities carry risks for the

Bureau, which will face sc rutiny from Congress and stake-

holders over policy choices, bureaucratic performance,

and spending decisions. But these new authorities and

resources also provide a real opportunity for the Bureau to

expand its reach and clientele, incentivize positive action,

and make progress in resolving long-sta nding environmen-

tal water problems.

is Article begi ns by introducing the new environmen-

tally focused grant programs, summarizing their authoriz-

ing statutes, the money provided through the Bipartisan

Infrastructure Law5 (BIL), and the Bureau’s actions in

establishing and implementing these programs. Part II

examines policy choices m ade by Congress and the Bureau

in setting up these gra nt programs, starting with the choice

of the Bureau as the implementing agency, then review-

ing eligible project and applicant types, grantmaking pri-

orities, cost-share requirements, and other provisions. Part

III considers what the new environmental grant programs

might mean for the western water environment, for the

Bureau itself, and for federal water policy, and identies

some concerns with competitive grant programs as a polic y

tool. Part IV concludes.

I. The New Environmental Grant

Programs for Western Waters

Congress has made signicant moves in the past three

years to make federal money available to address envi-

ronmental problems relating to waters in the West. is

section examines the authorizations and funding for

4. See infra Section II.A (discussing the Bureau’s evolving mission and

Congress’ choice to have the Bureau implement the environmental

grant programs).

5. e Bipartisan Infrastructure Law, Pub. L. No. 117-58, 134 Stat. 429

(2021), was ocially titled the Infrastructure Investment and Jobs Act, id.

§1(a). It is sometimes referred to as the IIJA, or the Infrastructure Law, but

this Article refers to the law by the initials BIL.

these new programs, and the Bureau’s early actions to

implement them.

A. The Statutory Authorities

Beginning in late 2020, Congress enacted multiple new

grant programs to be implemented by the Bureau, all

focused largely on addressing environmental problems

relating to waters in the West. While all these authoriza-

tions call for funding water-related projects that will pro-

vide environmental benets, there are notable dierences

in the kinds of projects (or benets) to be prioritized for

grants, the types of entities eligible to apply, the require-

ments for paying a portion of project costs with nonfederal

funds, and more.

Congress rst acted to provide specically for environ-

mental grants in the Consolidated Appropriations Act for

Fiscal Year 2021 (FY21 Omnibus),6 enacted in late Decem-

ber 2020 near the end of the Trump Administration. e

FY21 Omnibus modestly “greened” an existing Bureau

grant program known as WaterSMART,7 and went fu rther

to establish the rst gra nt program specic to environmen-

tally focused projects.

e WaterSMART grant program was initially autho-

rized in the 2009 Science and Engineering to Comprehen-

sively Understand and Responsibly Enhance (SECURE)

Water Act,8 and its original focus (as expla ined below9) was

on water conservation projects to save water used for agri-

cultural or municipal purposes. States, tribes, irrigation or

water districts, or other organiz ations authorized to deliver

water or power could apply10 for a grant to cover up to one-

half of the cost of an eligible project. But nonprot conser-

vation groups were not eligible to apply, and the statutory

criteria prioritized projects with water savings, not environ-

mental benets.11

e FY21 Omnibus, in a section titled “WaterSMART

Extension and Ex pansion,”12 made several environmental ly

focused changes to the grant program authorizing stat-

ute. It made projects that would “improve the condition

6. Pub. L. No. 116-260, 134 Stat. 1182 (2020).

7. e “SMART” in WaterSMART stands for “Sustain and Manage America’s

Resources for Tomorrow.” U.S. Bureau of Reclamation, Interactive Dash-

board, https://www.usbr.gov/main/dashboard.html (last updated Aug. 25,

2021). Various Bureau programs for planning, technical assistance, stake-

holder engagement, and funding come under the WaterSMART umbrella.

U.S. Bureau of Reclamation, WaterSMART, https://www.usbr.watersmart/

index.html (last updated Aug. 25, 2021).

8. Pub. L. No. 111-11, §§9501-9510, 123 Stat. 991, 1329-46 (2009). While

dealing primarily with federal lands, this enactment also included several

Bureau of Reclamation authorizations in its Title IX, 123 Stat. 1295-414.

9. See infra notes 118-24and accompanying text.

10.Pub. L. No. 111-11,§9502(7), 123 Stat. 991, 1330 (2009) (dening “eli-

gible applicant”).

11. Id. §9504(a)(1), 123 Stat. 1334 (listing several purposes, including prevent-

ing the need to list species under the Endangered Species Act or accelerating

the recovery of already-listed species).

12.Pub. L. No. 116-260, §1106, 134 Stat. 1182, 3240 (2020). is section of

the FY21 Omnibus also increased the authorized spending limit for Water

SMART grants (over the lifetime of the program) from $530 million to $700

million. Id. §1106(d), 134 Stat. 3242 (codied at 42 U.S.C. §10364(e)).

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.