[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2636 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 2636
To amend the Watershed Protection and Flood Prevention Act to improve
that Act, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 27, 2023
Mr. Bennet (for himself, Mrs. Fischer, and Mr. Merkley) introduced the
following bill; which was read twice and referred to the Committee on
Agriculture, Nutrition, and Forestry
_______________________________________________________________________
A BILL
To amend the Watershed Protection and Flood Prevention Act to improve
that Act, 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 ``Healthy Watersheds, Healthy
Communities Act of 2023''.
SEC. 2. SHORT TITLE; FINDINGS; DECLARATION OF POLICY.
The first section of the Watershed Protection and Flood Prevention
Act (16 U.S.C. 1001) is amended to read as follows:
``SECTION 1. SHORT TITLE; FINDINGS; DECLARATION OF POLICY.
``(a) Short Title.--This Act may be cited as the `Watershed
Protection and Flood Prevention Act'.
``(b) Findings.--Congress finds that erosion, floodwater, drought,
and sediment damages in the watersheds of the rivers and streams of the
United States cause loss of life, declines in agricultural production,
harm to fish, birds, wildlife, and recreation opportunities, and damage
to property, thereby constituting a menace to the national welfare.
``(c) Sense of Congress.--It is the sense of Congress that the
Federal Government should cooperate with States and political
subdivisions of States, Tribal organizations described in section
2(2)(C), insular areas (as defined in section 1404 of the National
Agricultural Research, Extension, and Teaching Policy Act of 1977 (7
U.S.C. 3103)), soil or water conservation districts, flood prevention
or control districts, irrigation districts or similar entities,
nonprofit organizations, and other local public agencies for the
purposes of--
``(1) preventing the damages described in subsection (b);
``(2) furthering the conservation, development,
utilization, and disposal of water, and the conservation and
utilization of land; and
``(3) thereby preserving, protecting, and improving land
and water resources and the quality of the environment.''.
SEC. 3. DEFINITIONS.
Section 2 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1002) is amended to read as follows:
``SEC. 2. DEFINITIONS.
``In this Act:
``(1) Irrigation efficiency.--The term `irrigation
efficiency' means a reduction in the quantity of non-consumed
water diverted at a source for irrigation purposes, consistent
with State water law.
``(2) Local organization.--The term `local organization'
means--
``(A)(i) any State, political subdivision of a
State, soil or water conservation district, flood
prevention or control district, or combination thereof;
or
``(ii) any other governmental agency having
authority under State law to carry out, maintain, and
operate a work of improvement;
``(B) any irrigation district or reservoir company,
water users' association, canal company, ditch
association, acequia, or similar entity, or
nongovernmental organization that is not being operated
for profit, with--
``(i) the capacity to engage in the
planning or implementation of land treatment
and related conservation measures; or
``(ii) the authority to construct and
maintain structural measures; or
``(C) any Indian Tribe or Tribal organization (as
those terms are defined in section 4 of the Indian
Self-Determination and Education Assistance Act (25
U.S.C. 5304)) having authority under Federal, State, or
Indian Tribal law to carry out, maintain, and operate a
work of improvement.
``(3) Multibenefit work of improvement.--The term
`multibenefit work of improvement' means a work of improvement,
including irrigation efficiency, flood-damage reduction, water
management, or watershed protection, that provides 2 or more of
the following public benefits:
``(A) Improvement in the condition of a natural
feature that increases fish or wildlife habitat,
reduces drought impact, or reduces flood-risk.
``(B) Improvement in water quality.
``(C) Water conservation.
``(D) Improvement to instream flow.
``(E) Enhanced fish passage or reduction in fish
entrainment.
``(F) Permanent protection of a natural feature.
``(G) Off-channel renewable energy production.
``(4) Natural feature.--The term `natural feature' means a
feature that is created through the action of physical,
geological, biological, and natural chemical processes over
time.
``(5) Secretary.--The term `Secretary' means the Secretary
of Agriculture.
``(6) Water conservation.--The term `water conservation'
means a reduction in total annual consumptive water use
compared to total annual consumptive water use before a work of
improvement is carried out under this Act.
``(7) Water management.--The term `water management' means
any project or activity carried out to increase the efficiency
of water use, transfer, diversion, or conveyance.
``(8) Work of improvement.--
``(A) In general.--The term `work of improvement'
means any undertaking carried out in a watershed or
subwatershed area not exceeding 250,000 acres
(including on Federal land necessary to accomplish the
purposes of the undertaking) for--
``(i) flood prevention (including
structural and land treatment measures);
``(ii) the conservation, development,
utilization, and disposal of water; or
``(iii) the conservation and proper
utilization of land.
``(B) Exclusion.--The term `work of improvement'
does not include any single structure that provides--
``(i) more than 12,500 acre-feet of
floodwater detention capacity; and
``(ii) more than 25,000 acre-feet of total
capacity.
``(C) Requirement for agriculture or conservation
benefits.--Each undertaking described in subparagraph
(A) shall contain benefits directly related to
agriculture or conservation, including communities in
rural areas (as defined in section 343(a) of the
Consolidated Farm and Rural Development Act (7 U.S.C.
1991(a))), that account for at least 20 percent of the
total benefits of the undertaking.
``(D) Consolidated planning.--1 or more
subwatersheds, when the subwatersheds are components of
a larger watershed, may be planned together at the
discretion of the local organization sponsoring the
applicable undertaking.''.
SEC. 4. ASSISTANCE TO LOCAL ORGANIZATIONS.
Section 3 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1003) is amended--
(1) by redesignating subsection (b) as subsection (e);
(2) in subsection (a)(6), in the first sentence, by
striking ``occupiers, individually'' and inserting the
following: ``occupiers in accordance with subsection (b).
``(b) Agreements With Landowners, Operators, and Occupiers.--
``(1) In general.--The Secretary may enter into agreements
under subsection (a)(6) with landowners, operators, and
occupiers, individually'';
(3) in subsection (b) (as so designated)--
(A) by striking ``supplemented. Applications'' and
inserting the following: ``supplemented.
``(2) Applications.--Applications'';
(B) in paragraph (2) (as so designated)--
(i) in the first sentence, by striking
``such conservation plans'' and inserting
``conservation plans described in paragraph
(1)''; and
(ii) by striking ``such district. In
return'' and all that follows through
``interest. The portion'' and inserting the
following: ``that district.
``(3) Cost sharing.--
``(A) In general.--The Secretary may agree to share
the costs of carrying out a work of improvement, or
specific practices and measures described in such an
agreement, if the Secretary determines that cost
sharing is appropriate and in the public interest.'';
``(B) Portion of costs.--The portion''; and
(iii) in subparagraph (B) (as so
designated)--
(I) by striking ``programs. The
Secretary'' and inserting the
following: ``programs.
``(4) Termination; modifications.--The Secretary'';
(C) in paragraph (4) (as so designated)--
(i) in the first sentence, by striking
``hereunder, as he'' and inserting ``under this
subsection, as the Secretary''; and
(ii) by striking ``herein.
Notwithstanding'' and inserting the following:
``under this subsection.
``(5) Preservation or surrender of history.--
Notwithstanding''; and
(D) in paragraph (5) (as so designated)--
(i) by striking ``he'' and inserting ``the
Secretary'';
(ii) by striking ``paragraph'' and
inserting ``subsection'';
(iii) by striking ``hereunder for (1)
preservation'' and inserting the following:
``under this paragraph for--
``(A) preservation''; and
(iv) in subparagraph (A) (as so
designated), by striking ``crop; or (2)
surrender'' and inserting the following:
``crop; or
``(B) surrender'';
(4) by inserting after subsection (b) (as so designated)
the following:
``(c) Delegation of Authorities.--The Secretary shall delegate
final decision-making authority to the State Conservationist, or the
agency having that responsibility, of the State in which the work of
improvement is located for the determination of when the watershed plan
for a work of improvement shall be released for final public comment.
``(d) Deadline for Approval or Disapproval.--
``(1) In general.--Subject to paragraph (2), not later than
45 days after the date on which an application for a work of
improvement is submitted to the Secretary, the Secretary shall
approve or disapprove the application.
``(2) Extensions.--The Secretary may extend the deadline
described in paragraph (1) by 45 days, if necessary.'';
(5) in subsection (e) (as so redesignated)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``or the delegated
authority under subsection (c)'' after ``The
Secretary''; and
(ii) by inserting ``or the delegated
authority'' after ``if the Secretary''; and
(B) in paragraph (2), by striking ``section 4'' and
inserting ``section 7''; and
(6) by adding at the end the following:
``(f) Approval of Plans That Improve the Condition of a Natural
Feature.--Notwithstanding subsection (a)(3), the Secretary may approve
a plan for a multibenefit work of improvement, regardless of the ratio
of costs to benefits of the multibenefit work of improvement.
``(g) Guarantee of Funding for Certain Construction Materials.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary may approve funding under a work of improvement for
construction materials for pipes to convey water if the
Secretary determines that the construction materials--
``(A) are fully recyclable;
``(B) maintain structural integrity for not less
than 100 years; and
``(C) are capable of being manufactured on-site.
``(2) Construction materials with less than 100-year
structural integrity.--The Secretary, at the election of a
project sponsor and with the recommendation of the applicable
State Conservationist of the project sponsor, may approve
funding under a work of improvement for construction materials
for pipes to convey water that do not meet the criteria
described in subparagraphs (A) through (C) of paragraph (1).''.
SEC. 5. NOTIFICATION REQUIREMENT.
Section 4 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1004) is amended to read as follows:
``SEC. 4. NOTIFICATION REQUIREMENT.
``(a) In General.--
``(1) Approval by secretary required.--No amounts shall be
provided under this Act for any plan for a work of improvement
involving an estimated Federal contribution to construction
costs in excess of $50,000,000, or that includes any structure
that provides more than 2,500 acre-feet of total capacity,
unless the Secretary has approved the work of improvement.
``(2) Notice.--Except in the case of a flood prevention
project described in subsection (b), not less than 60 days
before approving a plan described in paragraph (1), the
Secretary shall provide to the Committee on Agriculture,
Nutrition, and Forestry of the Senate and the Committee on
Agriculture of the House of Representatives a notice of the
approval, including a description of the justification for the
approval and a copy of the plan.
``(b) Flood Prevention Projects.--
``(1) Projects less than 4,000 acre-feet of capacity.--In
the case of any plan for a flood prevention project under this
Act involving no single structure providing more than 4,000
acre-feet of total capacity, not less than 60 days before
approving a plan described in subsection (a)(1), the Secretary
shall provide to the Committee on Agriculture, Nutrition, and
Forestry of the Senate and the Committee on Agriculture of the
House of Representatives a notice of the approval, including a
description of the justification for the approval and a copy of
the plan.
``(2) Projects more than 4,000 acre-feet of capacity.--In
the case of any plan for a flood prevention project under this
Act involving any single structure providing more than 4,000
acre-feet of total capacity, not less than 60 days before
approving a plan described in subsection (a)(1), the Secretary
shall provide to the Committee on Environment and Public Works
of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives a notice of the
approval, including a description of the justification for the
approval and a copy of the plan.
``(c) Watershed or Subwatershed Areas.--If the estimated Federal
contribution to the construction cost of works of improvement in the
plan for any watershed or subwatershed area exceeds $50,000,000 or
includes any structure that provides more than 2,500 acre-feet of total
capacity, the Secretary shall provide a copy of the plan and a
justification for the plan to--
``(1) the Committee on Agriculture, Nutrition, and Forestry
of the Senate and the Committee on Agriculture of the House of
Representatives, if the plan includes no single structure
providing more than 4,000 acre-feet of total capacity; or
``(2) the Committee on Environment and Public Works of the
Senate and the Committee on Transportation and Infrastructure
of the House of Representatives, if the plan includes any
single structure providing more than 4,000 acre-feet of total
capacity.''.
SEC. 6. MULTIBENEFIT WORK OF IMPROVEMENT ALLOCATION.
Section 5 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1005) is amended to read as follows:
``SEC. 5. MULTIBENEFIT WORK OF IMPROVEMENT ALLOCATION.
``The Secretary shall allocate not less than 50 percent of the
total amount made available under this Act for each fiscal year for the
planning, design, or construction of multibenefit works of
improvement.''.
SEC. 7. REPEALS; REDESIGNATIONS.
(a) Repeals.--Sections 9 and 11 of the Watershed Protection and
Flood Prevention Act (16 U.S.C. 1006b; 16 U.S.C. 1001 note; 68 Stat.
668; 70 Stat. 1090) are repealed.
(b) Redesignations.--The Watershed Protection and Flood Prevention
Act is amended by redesignating sections 3A, 6, 7, 8, 12, 13, 14, and
15 (16 U.S.C. 1003a, 1006; 68 Stat. 668; 16 U.S.C. 1006a, 1008, 1010,
1012, 1012a) as sections 6, 9, 11, 12, 13, 14, 15, and 16,
respectively.
(c) Conforming Amendments.--
(1) Section 515(b)(8)(B) of the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1265(b)(8)(B)) is amended by
striking ``Public Law 83-566 (16 U.S.C. 1006)'' and inserting
``section 9 of the Watershed Protection and Flood Prevention
Act''.
(2) Section 1211(a)(3)(D) of the Food Security Act of 1985
(16 U.S.C. 3811(a)(3)(D)) is amended--
(A) by striking ``or 8'';
(B) by striking ``and 1006a''; and
(C) by inserting ``or section 12 of that Act''
before the period at the end.
(3) Section 1221(b)(3)(D) of the Food Security Act of 1985
(16 U.S.C. 3821(b)(3)(D)) is amended--
(A) by striking ``or 8'';
(B) by striking ``and 1006a''; and
(C) by inserting ``or section 12 of that Act''
before the period at the end.
(4) Section 1271A(1)(F) of the Food Security Act of 1985
(16 U.S.C. 3871a(1)(F)) is amended by striking ``section 14 (16
U.S.C. 1012) of that Act'' and inserting ``section 15 of that
Act''.
(5) Section 10 of the Watershed Protection and Flood
Prevention Act (16 U.S.C. 1007) is amended, in the second
sentence, by striking ``provisions of section 3 or clause (a)
of section 8 of this Act'' and inserting ``section 3 or
subsection (a) of the first sentence of section 12''.
SEC. 8. COST SHARE ASSISTANCE.
Section 6 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1001 et seq.) (as redesignated by section 7(b)) is amended--
(1) in subsection (a), by inserting ``, as determined by
the Secretary,'' after ``assistance''; and
(2) by adding at the end the following:
``(c) Treatment of Other Federal Funds for Works of Improvement.--
Any funds provided for a work of improvement through any Federal
department or agency other than the Department of Agriculture shall be
considered to be part of the non-Federal share of the cost of the work
of improvement provided by the sponsor of the work of improvement.''.
SEC. 9. CONDITIONS FOR FEDERAL ASSISTANCE.
The Watershed Protection and Flood Prevention Act (16 U.S.C. 1001
et seq.) is amended by inserting after section 6 (as redesignated by
section 7(b)) the following:
``SEC. 7. CONDITIONS FOR FEDERAL ASSISTANCE.
``(a) In General.--The Secretary shall require, as a condition of
providing Federal assistance for the installation of a work of
improvement, that a local organization sponsoring the work of
improvement shall--
``(1) acquire, or, with respect to interests in land to be
acquired by condemnation, provide assurances satisfactory to
the Secretary that they will acquire, without cost to the
Federal Government from funds appropriated for the purposes of
this Act (except as provided in subsection (b)), such land,
easements, or rights-of-way as will be needed in connection
with works of improvement installed with Federal assistance;
``(2) make arrangements satisfactory to the Secretary for
defraying costs of operating and maintaining such works of
improvement, in accordance with regulations presented by the
Secretary;
``(3) acquire, or provide assurance that landowners or
water users have acquired, such water rights, pursuant to State
law, as may be needed in the installation and operation of the
work of improvement;
``(4) obtain agreements to carry out recommended soil
conservation measures and proper farm plans from owners of not
less than 50 percent of the land situated in the drainage area
above each retention reservoir to be installed with Federal
assistance; and
``(5) submit a plan of repayment satisfactory to the
Secretary for any loan or advancement made under section 12.
``(b) Cost Share or Advance Payments for Certain Activities.--
``(1) Public fish and wildlife or recreational
development.--
``(A) In general.--If a local organization agrees
to operate and maintain any reservoir or other area
included in a plan for public fish and wildlife or
recreational development, the Secretary shall not bear
more than 50 percent of the costs of--
``(i) the land, easements, or rights-of-way
acquired or to be acquired by the local
organization for such reservoir or other area;
and
``(ii) minimum basic facilities needed for
public health and safety, access to, and use of
such reservoir or other area for such purposes.
``(B) Recreational development.--
``(i) Conditions.--The Secretary may
participate in recreational development in any
watershed project under subparagraph (A) only
to the extent that the need for the
recreational development is demonstrated in
accordance with standards established by the
Secretary--
``(I) taking into account the
anticipated man-days of use of the
projected recreational development; and
``(II) giving consideration to the
availability within the region of
existing water-based outdoor
recreational developments.
``(ii) Limitations.--The Secretary may
participate in--
``(I) not more than 1 recreational
development in a watershed project
containing less than 75,000 acres;
``(II) not more than 2 recreational
developments in a watershed project
containing--
``(aa) not less than 75,000
acres; and
``(bb) not more than
150,000 acres; or
``(III) not more than 3
recreational developments in a
watershed project containing more than
150,000 acres.
``(2) Advance payments.--If the Secretary and a local
organization have agreed that the immediate acquisition by the
local organization of land, easements, or rights-of-way is
advisable for the preservation of sites for works of
improvement included in a plan from encroachment by
residential, commercial, industrial, or other development--
``(A) the Secretary may advance to the local
organization from funds appropriated for construction
of works of improvement the amounts required for the
acquisition of such land, easements, or rights-of-way;
and
``(B) except where such costs are to be borne by
the Secretary, such advance shall be repaid by the
local organization, with interest, prior to
construction of the works of improvement, for credit to
such construction funds.
``(3) Mitigation of fish and wildlife habitat losses.--
``(A) In general.--The Secretary may bear an amount
not to exceed 50 percent of the costs of the land,
easements, or rights-of-way acquired or to be acquired
by a local organization for mitigation of fish and
wildlife habitat losses.
``(B) Outside boundaries.--An acquisition under
subparagraph (A) shall not be limited to the confines
of the watershed project boundaries.
``(c) Future Demands.--
``(1) In general.--The Secretary shall require, as a
condition of providing Federal assistance for the installation
of works of improvement, that--
``(A) the cost of water storage to meet future
demands may not exceed 30 percent of the total
estimated cost of the reservoir structure; and
``(B) the local organization shall give reasonable
assurances, and provide evidence, that such demands for
the use of such storage will be made within a period of
time which will permit repayment within the life of the
reservoir structure of the cost of such storage.
``(2) Assurances.--The Secretary shall determine prior to
initiation of construction or modification of any reservoir
structure including water supply storage that there are
adequate assurances by the local organization or by an agency
of the State having authority to give such assurances, that--
``(A) the Secretary will be reimbursed the cost of
water supply storage for anticipated future demands;
and
``(B) the local organization will pay not less than
50 percent of the cost of storage for present water
supply demands.
``(3) Repayment.--
``(A) In general.--The cost to be borne by the
local organization for anticipated future demands may
be repaid within the life of the reservoir structure
but in no event to exceed 50 years after the reservoir
structure is first used for the storage of water for
anticipated future water supply demands, except that--
``(i) no reimbursement of the cost of such
water supply storage for anticipated future
demands need be made until such supply is first
used; and
``(ii) no interest shall be charged on the
cost of such water supply storage for
anticipated future demands until such supply is
first used, but in no case shall the interest-
free period exceed 10 years.
``(B) Interest rate.--The interest rate used for
purposes of computing the interest on the unpaid
balance under subparagraph (A)(ii) shall be determined
in accordance with section 12.
``(d) Condition of Funds.--Nothing in this Act shall be construed
to supersede or in any manner affect or conflict with State water law,
Federal water law, interstate compacts, or treaty obligations.''.
SEC. 10. CONTRACT SERVICES.
The Watershed Protection and Flood Prevention Act (16 U.S.C. 1001
et seq.) is amended by inserting after section 7 (as added by section
9) the following:
``SEC. 8. CONTRACT SERVICES.
``(a) In General.--
``(1) Securing services.--A local organization may secure
services, including for the planning, design, preparation of
contracts and specifications, awarding of contracts, and
supervision of construction, in connection with works of
improvement, if--
``(A) the Secretary and the interested local
organization have agreed on a plan for the works of
improvement;
``(B) the Secretary, in consultation with the
delegated authority under section 3(c), has determined
that the benefits exceed the costs, except that the
benefits of fish and wildlife habitat or water quality
improvement shall not be required to be monetized to be
considered against costs;
``(C) the local organization has met the
requirements for participation in carrying out the
works of improvement described in section 7; and
``(D) the Secretary, in consultation with the
delegated authority under section 3(c), has determined
that the services are satisfactory, based on the works
of improvement.
``(2) Services provided by the secretary.--The Secretary
may provide services under paragraph (1) on request by the
local organization, with priority given to multibenefit works
of improvement.
``(3) Reimbursement.--If the local organization elects to
secure services under paragraph (1), the Secretary shall
reimburse the local organization for the costs charged for work
in an amount not to exceed the amount agreed upon in the plan
for works of improvement or any modification thereof.
``(4) Advance payments.--
``(A) In general.--The Secretary may advance such
amounts as may be necessary to pay for services
described in paragraph (1).
``(B) Limitations.--Advances under subparagraph (A)
shall not exceed--
``(i) in the case of a work of improvement
for flood prevention or drought resiliency, 5
percent of the estimated installation cost of
the work of improvement; and
``(ii) in the case of a work of improvement
the primary purpose of which is fish and
wildlife habitat or water quality improvement,
75 percent of the estimated installation cost
of the work of improvement.
``(b) Construction of Structures.--
``(1) In general.--Except as to the installation of works
of improvement on Federal land and as provided in paragraph
(2), the Secretary shall not construct or enter into any
contract for the construction of any structure.
``(2) Requests of local organization.--The Secretary may
enter into a contract for the construction of structures on
request of a local organization.''.
SEC. 11. MAXIMUM LOAN AMOUNT.
Section 12 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1001 et seq.) (as redesignated by section 7(b)) is amended, in
the third sentence, by striking ``five million dollars'' and inserting
``$10,000,000''.
SEC. 12. DATA.
Section 14 of the Watershed Protection and Flood Prevention Act (16
U.S.C. 1001 et seq.) (as redesignated by section 7(b)) is amended--
(1) in the matter preceding paragraph (1), by striking
``collect and maintain'' and inserting ``collect, maintain, and
publish on the website of the Department of Agriculture'';
(2) in paragraph (1), by striking ``control and
conservation'' and inserting ``control, conservation, and
drought resilience''; and
(3) by striking paragraph (2) and inserting the following:
``(2) expenditures for--
``(A) improvement in the condition of a natural
feature that increases fish or wildlife habitat,
reduces drought impact, or reduces flood-risk;
``(B) improvement in water quality;
``(C) water conservation;
``(D) improvement to instream flow;
``(E) enhanced fish passage or reduction in fish
entrainment;
``(F) permanent protection of a natural feature;
and
``(G) off-channel renewable energy production.''.
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