[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5215 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 5215

 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

                            December 8, 2022

 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 ``Collaborative Modifications to Aging 
Infrastructure Projects 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 the original capacity 
                restored, if the extraordinary operation and 
                maintenance work under section 9603 is intended to 
                restore lost project capacity;
                    ``(B) the project prior to undertaking the planning 
                and design, if the extraordinary operation and 
                maintenance work under section 9603 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) 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 the original capacity 
                restored, if the extraordinary operation and 
                maintenance work under section 9603 is intended to 
                restore lost project capacity; or
                    ``(B) the project prior to undertaking the planning 
                and design, if the extraordinary operation and 
                maintenance work under section 9603 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
            (4) 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 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) 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 costs to 
        restore or add a public benefit, 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 project, in the case of a 
                        project for which the original cost of the 
                        project exceeds $100,000,000; or
                            ``(ii) $25,000,000, in the case of a 
                        project for which the original cost of the 
                        project 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 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, if applicable; 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, if any, 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 Secretary or the 
                        transferred works operating entity, as 
                        applicable, 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) the public benefits provided by the modified 
                project, including associated annual operation and 
                maintenance costs, 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.--The total amount of 
        reimbursable capital costs, as determined under paragraph (3), 
        for a project modification that would increase public benefits 
        without increasing municipal, industrial, or irrigation 
        benefits of a project, 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.
            ``(5) Reimbursable funds.--All reimbursable costs under 
        this subsection shall be repaid in accordance with subsection 
        (b).''.
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