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facility dur_ng and after discrarge remains ac acceptable levels. The applicant shall be held liable for toxic substances which are introduced into Reclamation's facility by the applicant's water. 3. National -cnvi ro rmen tai Po L cv ?.ct 'NEPA1 The decision to accept urban storm water =nto Reclamation's facilities const:.tutes a federal action and is, therefore, subject to NEPA. NEPA compliance will be completed prior to licensing any discharge. ~. i0. structural Inteer~ty: Reclamation must ensure that its facilities will continue to operate as designed, without fear of periodic overloading. The applicant must provide assurance that anticipated runoff from a maximum probable storm event will not exceed the facility's designed capacity and cause facility failure. In cases wheie~such assurance cannot be provided, the application shall be denied unless the applicant is prepared to upgrade the facility to Reclamation's standard at his/her own expense. Reclamation must have final approval authority over all upgrade design and construction, and the impacts of the contemplated upgrade must be assessed under NEPA. 11. Tort claims: Liability for the United States is established by Federal statute, particularly the Federal Tort Claims Act. Accepting urban storm water discharge into existing Reclamation facilities may expose Reclamation to the possibility of tort claims. In general, a tort claim is a claim of civil wrong committed against a person or property, independent of any contractual arrangement. Under the Federal Tort Claims Act of 1948, Reclamation can be held liable for: . money damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if- a private person, would be liable to the claimant in accordance withthe law of the place where the act or omission occurred." Reclamation can significantly reduce the threat of successful tort claims through three principal avenues: a. Careful Review and Seieet+ve Authorization; 8y following the above-listed policy and guidance, Reclamation will screen out and~deny most high-risk applications. b. Hold Harmless Clause: All signatory documents (i.e., licenses, permits, o4M agreementsf used to authorize the discharge of urban storm water into existing Reclamation facilities must contain an appropriately worded "hold harmless" provision. For example: The Licensee hereby agrees to indemnify and hold harmless the United States, its employees, agents, and assigns from any loss or damage and from any liability on account of personal injury, property damage, or claims for personal injury or death arising out the Licensee's activities under this License. [Adapted from 43 CFR 429.9(a1J ~ c. Lecal Review: The licensing of urban storm water discharge is far too complex to be accomplished through use of pre-approved, fill-in-the- 5