[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2202 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 2202
To amend the Omnibus Public Land Management Act of 2009 to authorize
the modification of transferred works to increase public benefits and
other project benefits as part of extraordinary operation and
maintenance work, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 22, 2023
Mrs. Feinstein (for herself and Mr. Padilla) introduced the following
bill; which was read twice and referred to the Committee on Energy and
Natural Resources
_______________________________________________________________________
A BILL
To amend the Omnibus Public Land Management Act of 2009 to authorize
the modification of transferred works to increase public benefits and
other project benefits as part of extraordinary operation and
maintenance work, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Restore Aging Infrastructure Now
Act'' or the ``RAIN Act''.
SEC. 2. EXTRAORDINARY OPERATION AND MAINTENANCE WORK; PROJECT
MODIFICATION.
(a) Definitions.--Section 9601 of the Omnibus Public Land
Management Act of 2009 (43 U.S.C. 510) is amended--
(1) by redesignating paragraphs (1), (2), (3), (4), (5),
(6), and (7) as paragraphs (4), (7), (9), (10), (11), (12), and
(3), respectively, and moving the paragraphs so as to appear in
numerical order;
(2) by inserting before paragraph (3) (as so redesignated)
the following:
``(1) Adverse impact.--The term `adverse impact' means,
with respect to a project modification, a reduction in water
quantity or quality or a change in the timing of water
deliveries available to a project beneficiary from the modified
project as compared to the water quantity or quality or timing
of water deliveries from--
``(A) the project with restored capacity, if the
extraordinary operation and maintenance work under
section 9603 is intended to restore lost project
capacity;
``(B) the project prior to undertaking the
extraordinary operation and maintenance work under
section 9603, if the extraordinary operation and
maintenance work is for any purpose other than to
restore lost project capacity; or
``(C) project operations of the modified project
without an increase in benefits for a new project
beneficiary under section 9603(e)(1)(E).
``(2) Disadvantaged community.--The term `disadvantaged
community' has the meaning given the term `low-income
community' in section 45D(e) of the Internal Revenue Code of
1986.'';
(3) in paragraph (3) (as so redesignated)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(C) inclusive of any modifications to the
facilities or facility components authorized under
section 9603(e).'';
(4) by inserting after paragraph (4) (as so redesignated)
the following:
``(5) New benefit.--The term `new benefit' means the
increase in benefits of the modified project compared to the
benefits provided by--
``(A) the project with restored capacity, if the
extraordinary operation and maintenance work under
section 9603 is intended to restore lost project
capacity; or
``(B) the project as the project existed prior to
undertaking the extraordinary operation and maintenance
work under section 9603, if the extraordinary operation
and maintenance work is for any purpose other than to
restore lost project capacity.
``(6) Project beneficiary.--The term `project beneficiary'
means any entity that has a repayment, long-term water service,
or other form of long-term contract or agreement executed
pursuant to the Act of June 17, 1902 (32 Stat. 388, chapter
1093), and Acts supplemental to and amendatory of that Act (43
U.S.C. 371 et seq.), for water supply from the project.''; and
(5) by inserting after paragraph (7) (as so redesignated)
the following:
``(8) Public benefit.--The term `public benefit', with
respect to a modified project, means--
``(A) a public benefit identified under the
reclamation laws; or
``(B) a drinking water benefit for 1 or more
disadvantaged communities, including through
groundwater recharge, if--
``(i) the drinking water meets applicable
regulatory standards;
``(ii) the drinking water benefit exceeds
express mitigation or compliance requirements
under Federal or State law;
``(iii) the modified project reduces the
unit cost per volume, improves water quality,
or increases the reliability or quantity of the
drinking water supply of the disadvantaged
community as compared to the condition of the
drinking water or other sources of drinking
water available before the modification of the
project;
``(iv) the drinking water benefit is
quantified in a public process, including
outreach to representatives of the affected
disadvantaged community at the earliest
practicable opportunity, to determine the scope
of funding; and
``(v) negative impacts on water quality for
other communities are not caused as part of the
modified project.''.
(b) Reimbursement of Costs.--Section 9603(b) of the Omnibus Public
Land Management Act of 2009 (43 U.S.C. 510b(b)) is amended--
(1) in paragraph (2), by striking ``the costs'' and
inserting ``from the Aging Infrastructure Account established
by subsection (d)(1) or any other applicable available account
the costs, including reimbursable costs and nonreimbursable
costs,''; and
(2) by adding at the end the following:
``(4) Determination of nonreimbursable costs.--Any costs
advanced under paragraph (2) that are allocated to
nonreimbursable purposes of the project, including public
benefits described in section 9601(8)(B), shall be considered
to be nonreimbursable costs.''.
(c) Aging Infrastructure Account Conforming Amendments.--Section
9603(d) of the Omnibus Public Land Management Act of 2009 (43 U.S.C.
510b(d)) is amended--
(1) in paragraph (1), in the matter preceding subparagraph
(A), by striking ``the funds'' and inserting ``reimbursable
funds'';
(2) in paragraph (2)--
(A) by striking ``to fund'' and inserting ``to
fund,''; and
(B) by striking ``the funds for'' and inserting
``reimbursable funds for,'';
(3) in paragraph (3)(A), by striking ``the amounts'' and
inserting ``the reimbursable amounts''; and
(4) in paragraph (4)(B)(i), by inserting ``, including
projects under subsection (e)'' after ``this section''.
(d) Authorization To Modify Transferred Works To Increase Public
Benefits and Other Project Benefits as Part of Extraordinary Operation
and Maintenance Work.--Section 9603 of the Omnibus Public Land
Management Act of 2009 (43 U.S.C. 510b) is amended by adding at the end
the following:
``(e) Authorization To Modify Transferred Works To Increase Public
Benefits and Other Project Benefits as Part of Extraordinary Operation
and Maintenance Work.--
``(1) Authorization; requirements.--
``(A) In general.--The Secretary, in consultation
with any transferred works operating entity and any
project beneficiaries and as part of extraordinary
operation and maintenance work under this section, may
develop and carry out a proposal to modify project
features for transferred works to increase public
benefits and other project benefits, including carrying
out a feasibility study and conducting any applicable
environmental analysis required for the proposal,
subject to subparagraphs (B) through (G).
``(B) Maximum cost.--The maximum amount that may be
added to the original project cost as a result of a
project modification under subparagraph (A) shall not
exceed--
``(i) an amount equal to 25 percent of the
original cost of the planned extraordinary
operation and maintenance work, in the case of
a project for which the original cost of the
planned extraordinary operation and maintenance
work exceeds $100,000,000; or
``(ii) $25,000,000, in the case of a
project for which the original cost of the
planned extraordinary operation and maintenance
work is not more than $100,000,000.
``(C) Public benefits.--In the case of a project
modification under subparagraph (A), not less than 50
percent of the new benefits provided by the
modification of the project, as compared to the
original planned extraordinary operation and
maintenance work, shall be public benefits.
``(D) Written consent required.--A project
modification under subparagraph (A) shall not be
constructed until the date on which the Secretary has
obtained the written consent of--
``(i) the transferred works operating
entity; and
``(ii) consistent with paragraph (2), any
project beneficiary that would experience an
adverse impact as a result of the modification
of the project.
``(E) Adverse impact.--Any benefits that accrue to
a new project beneficiary resulting from operations of
the modified project shall not be increased without the
consent of existing project beneficiaries that would
experience an adverse impact as a result of the
modification of the project.
``(F) Reimbursement of costs.--The costs of
planning, design, and environmental compliance for a
project modification under subparagraph (A) shall be
reimbursed in accordance with subsection (b), except
that any of the costs that would otherwise be allocated
to a project beneficiary shall be considered
nonreimbursable if the project beneficiary does not
receive any increase in long-term average annual water
deliveries as a result of the modification.
``(G) Eligibility of certain project
modifications.--If a project modification that is
otherwise eligible under subparagraph (A) is in the
planning, design, or construction phase as of December
31, 2022, the project modification shall remain
eligible to be developed under that subparagraph.
``(2) Procedure for obtaining consent and time
limitation.--
``(A) Initial determination.--The Secretary shall
initially determine whether the consent of a project
beneficiary is required prior to construction under
paragraph (1)(D) based on whether the modification or
subsequent operations of the modified project would
have any adverse impacts on a project beneficiary.
``(B) Written request for consent.--The Secretary
shall provide to the transferred works operating
entity, and any project beneficiaries, in writing--
``(i) a description of the proposed
modification and subsequent operations of the
project; and
``(ii)(I) a request for consent under
paragraph (1)(D); or
``(II)(aa) an explanation that the
Secretary has determined that no consent is
required under paragraph (1)(D); and
``(bb) a statement that if the project
beneficiary believes that the consent of the
project beneficiary is required, the project
beneficiary shall send to the Secretary a reply
not later than 30 days after the date of
receipt of the notice that includes an
explanation of the reasons that the project
beneficiary would experience adverse impacts as
a result of the project modification.
``(C) Final determination.--
``(i) Written response.--The Secretary
shall respond in writing to any reply from a
project beneficiary under subparagraph
(B)(ii)(II)(bb) stating whether or not the
Secretary determines that the project
beneficiary would experience adverse impacts as
a result of the project modification.
``(ii) Final agency action.--A written
determination by the Secretary under clause (i)
shall be considered to be a final agency action
for purposes of section 704 of title 5, United
States Code.
``(iii) Written request.--If the Secretary
determines under clause (i) that the project
beneficiary would experience adverse impacts as
a result of the project modification, the
Secretary shall send to the project beneficiary
a written request for consent in accordance
with subparagraph (B)(ii).
``(D) Time period for consent.--
``(i) In general.--If written consent
required under paragraph (1)(D) is not obtained
by the date that is 1 year after the date on
which written consent is requested under
subparagraph (B)(ii), the transferred works
operating entity shall proceed with
extraordinary operation and maintenance work of
the project without the modification, unless
the Secretary extends the time for consent
under clause (ii).
``(ii) Extension.--At the discretion of the
Secretary, the Secretary may elect to extend
the time for obtaining consent under paragraph
(1)(D) by 1 year.
``(3) Reallocation of costs based on project changes and
increased public benefits.--The Secretary shall allocate costs,
including capital repayment costs and operation and maintenance
costs, for a project modification under paragraph (1), to
provide that--
``(A) annual operation and maintenance costs
associated with nonreimbursable purposes of the project
shall be nonreimbursable; and
``(B) the cost allocation of reimbursable costs to
each project beneficiary reflects any changes in the
benefits that the modified project is providing to the
project beneficiary.
``(4) Incentive for benefitting entities to participate in
projects with increased public benefits.--
``(A) In general.--The total amount of reimbursable
capital costs, as determined under paragraph (3), for
extraordinary operation and maintenance work described
in subparagraph (B) shall be reduced by 15 percent,
with each project beneficiary to be responsible for 85
percent of the reimbursable costs that would otherwise
be allocated to the project beneficiary.
``(B) Description of extraordinary operation and
maintenance work.--The extraordinary operation and
maintenance work referred to in subparagraph (A) is
extraordinary operation and maintenance work involving
a project modification that would increase
nonreimbursable public benefits without increasing
reimbursable municipal, industrial, or irrigation
benefits from the original design of the planned
extraordinary operation and maintenance work.
``(5) Reimbursable funds.--All reimbursable costs under
this subsection shall be repaid in accordance with subsection
(b).''.
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