The Secretary of the Interior may create and operate within the available capacity of Navajo Reservoir a top water bank.

Water made available for the top water bank in accordance with subsections (c) and (d) shall not be subject to section 11 of Public Law 87–483 (76 Stat. 99).

The top water bank authorized under subsection (a) shall be operated in a manner that—

(1) is consistent with applicable law, except that, notwithstanding any other provision of law, water for purposes other than irrigation may be stored in the Navajo Reservoir pursuant to the rules governing the top water bank established under this section; and

does not impair the ability of the Secretary of the Interior to deliver water under contracts entered into under—

(A) Public Law 87–483 (76 Stat. 96); and

(B) New Mexico State Engineer File Nos. 2847, 2848, 2849, and 2917.

The terms and procedures developed under paragraph (1) shall include provisions requiring that—

(1) The Secretary of the Interior, in cooperation with the State of New Mexico (acting through the Interstate Stream Commission), shall develop any terms and procedures for the storage, accounting, and release of water in the top water bank that are necessary to comply with subsection (c).

The terms and procedures developed under paragraph (1) shall include provisions requiring that—

(A) the storage of banked water shall be subject to approval under State law by the New Mexico State Engineer to ensure that impairment of any existing water right does not occur, including storage of water under New Mexico State Engineer File No. 2849;

(B) water in the top water bank be subject to evaporation and other losses during storage;

(C) water in the top water bank be released for delivery to the owner or assigns of the banked water on request of the owner, subject to reasonable scheduling requirements for making the release;

(D) water in the top water bank be the first water spilled or released for flood control purposes in anticipation of a spill, on the condition that top water bank water shall not be released or included for purposes of calculating whether a release should occur for purposes of satisfying the flow recommendations of the San Juan River Basin Recovery Implementation Program; and

(E) water eligible for banking in the top water bank shall be water that otherwise would have been diverted and beneficially used in New Mexico that year.

The Secretary of the Interior may charge fees to water users that use the top water bank in amounts sufficient to cover the costs incurred by the United States in administering the water bank.

(Apr. 11, 1956, ch. 203, § 16, as added Pub. L. 111–11, title X, § 10401(b)(2), Mar. 30, 2009, 123 Stat. 1371.)