II 118th CONGRESS 1st Session S. 2202 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.

1. Short title This Act may be cited as the Restore Aging Infrastructure Now Act or the RAIN Act . 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). .