Sec. 107. Extraordinary operation and maintenance work; project modification
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Section 9603(b) of the Omnibus Public Land Management Act of 2009 ( 43 U.S.C. 510b(b) ) is amended— in paragraph (1), by striking reimbursable purposes and inserting reimbursable and nonreimbursable purposes of the project and costs allocated to a reimbursable purpose ; in paragraph (2), by striking costs and inserting costs, including reimbursable and nonreimbursable costs ; and by adding at the end the following: Any costs expended under paragraph
(1)or advanced under paragraph
(2)that are allocated to existing nonreimbursable purposes of the project, including costs to restore or add a public benefit (as defined in section 2 of the Support To Rehydrate the Environment, Agriculture, and Municipalities Act), shall be considered to be nonreimbursable costs for purposes of this subsection. . 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: In this subsection: 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— the project with the original capacity restored, if the extraordinary operation and maintenance work under this section is intended to restore lost project capacity; the project prior to undertaking the planning and design, if the extraordinary operation and maintenance work under this section is for any purpose other than to restore lost project capacity; or project operations of the modified project without an increase in benefits for a new project beneficiary under paragraph (2)(E). The term new benefit means the increase in benefits of the modified project compared to the benefits provided by— the project with the original capacity restored, if the extraordinary operation and maintenance work under this section is intended to restore lost project capacity; or the project prior to undertaking the planning and design, if the extraordinary operation and maintenance work under this section is for any purpose other than to restore lost project capacity. 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 service from the project. The term public benefit has the meaning given the term in section 2 of the Support To Rehydrate the Environment, Agriculture, and Municipalities Act . In a case in which a project is anticipated to require extraordinary operation and maintenance work during the 10-year period beginning on January 1, 2023, the Secretary, in consultation with any transferred works operating entity and any project beneficiaries, may develop and carry out a proposal to modify project features 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 (F). 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— 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 $25,000,000, in the case of a project for which the original cost of the project is not more than $100,000,000. 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. A project modification under subparagraph
(A)shall not be constructed until the date on which the Secretary has obtained the written consent of— the transferred works operating entity, if applicable; and consistent with paragraph (3), any project beneficiary that would experience an adverse impact as a result of the modification of the project. 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. 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. The Secretary shall initially determine whether the consent of a project beneficiary is required prior to construction under paragraph (2)(D) based on whether the modification or subsequent operations of the modified project would have any adverse impacts on a project beneficiary. The Secretary shall provide to the transferred works operating entity, if any, and any project beneficiaries, in writing— a description of the proposed modification and subsequent operations of the project; and a request for consent under paragraph (2)(D); or an explanation that the Secretary has determined that no consent is required under paragraph (2)(D); and 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. 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. 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. 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). If written consent required under paragraph (2)(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). At the discretion of the Secretary, the Secretary may elect to extend the time for obtaining consent under paragraph (2)(D) by 1 year. The Secretary shall allocate costs, including capital repayment costs and operation and maintenance costs, for a project modification under paragraph (2), to provide that— the public benefits provided by the modified project, including associated annual operation and maintenance costs, shall be nonreimbursable; and 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. The total amount of reimbursable capital costs, as determined under paragraph (4), 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. All reimbursable costs under this subsection shall be repaid in accordance with subsection (b). .
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Sec. 107
Extraordinary operation and maintenance work; project modification
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