II 118th CONGRESS 1st Session S. 2636 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.

1. Short title This Act may be cited as the Healthy Watersheds, Healthy Communities Act of 2023 . 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: 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. . 3. Definitions Section 2 of the Watershed Protection and Flood Prevention Act ( 16 U.S.C. 1002 ) is amended to read as follows: 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. . 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). . 5. Notification requirement Section 4 of the Watershed Protection and Flood Prevention Act ( 16 U.S.C. 1004 ) is amended to read as follows: 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. . 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: 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. . 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 . 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. . 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: 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. . 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: 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. . 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 . 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. .