SUBCHAPTER I—COST SHARING

§2211. Harbors

(a) Construction

(1) Payments during construction

The non-Federal interests for a navigation project for a harbor or inland harbor, or any separable element thereof, on which a contract for physical construction has not been awarded before June 10, 2014, shall pay, during the period of construction of the project, the following costs associated with general navigation features:

(A) 10 percent of the cost of construction of the portion of the project which has a depth not in excess of 20 feet; plus

(B) 25 percent of the cost of construction of the portion of the project which has a depth in excess of 20 feet but not in excess of 50 feet; plus

(C) 50 percent of the cost of construction of the portion of the project which has a depth in excess of 50 feet.

(2) Additional 10 percent payment over 30 years

The non-Federal interests for a project to which paragraph (1) applies shall pay an additional 10 percent of the cost of the general navigation features of the project in cash over a period not to exceed 30 years, at an interest rate determined pursuant to section 2216 of this title. The value of lands, easements, rights-of-way, and relocations provided under paragraph (3) and the costs of relocations borne by the non-Federal interests under paragraph (4) shall be credited toward the payment required under this paragraph.

(3) Lands, easements, and rights-of-way

Except as provided under section 2283(c) of this title, the non-Federal interests for a project to which paragraph (1) applies shall provide the lands, easements, rights-of-way, and relocations (other than utility relocations under paragraph (4)) necessary for the project, including any lands, easements, rights-of-way, and relocations (other than utility relocations accomplished under paragraph (4)) that are necessary for dredged material disposal facilities.

(4) Utility relocations

The non-Federal interests for a project to which paragraph (1) applies shall perform or assure the performance of all relocations of utilities necessary to carry out the project, except that in the case of a project for a deep-draft harbor and in the case of a project constructed by non-Federal interests under section 2232 of this title, one-half of the cost of each such relocation shall be borne by the owner of the facility being relocated and one-half of the cost of each such relocation shall be borne by the non-Federal interests.

(5) Dredged material disposal facilities for project construction

In this subsection, the term "general navigation features" includes constructed land-based and aquatic dredged material disposal facilities that are necessary for the disposal of dredged material required for project construction and for which a contract for construction has not been awarded on or before October 12, 1996.

(b) Operation and maintenance

(1) In general

The Federal share of the cost of operation and maintenance of each navigation project for a harbor or inland harbor constructed by the Secretary pursuant to this Act or any other law approved after November 17, 1986, shall be 100 percent, except that in the case of a deep-draft harbor, the non-Federal interests shall be responsible for an amount equal to 50 percent of the excess of the cost of the operation and maintenance of such project over the cost which the Secretary determines would be incurred for operation and maintenance of such project if such project had a depth of 50 feet.

(2) Dredged material disposal facilities

The Federal share of the cost of constructing land-based and aquatic dredged material disposal facilities that are necessary for the disposal of dredged material required for the operation and maintenance of a project and for which a contract for construction has not been awarded on or before October 12, 1996, shall be determined in accordance with subsection (a). The Federal share of operating and maintaining such facilities shall be determined in accordance with paragraph (1).

(c) Erosion or shoaling attributable to Federal navigation works

Costs of constructing projects or measures for the prevention or mitigation of erosion or shoaling damages attributable to Federal navigation works shall be shared in the same proportion as the cost sharing provisions applicable to the project causing such erosion or shoaling. The non-Federal interests for the project causing the erosion or shoaling shall agree to operate and maintain such measures.

(d) Non-Federal payments during construction

The amount of any non-Federal share of the cost of any navigation project for a harbor or inland harbor shall be paid to the Secretary. Amounts required to be paid during construction shall be paid on an annual basis during the period of construction, beginning not later than one year after construction is initiated.

(e) Agreement

Before initiation of construction of a project to which this section applies, the Secretary and the non-Federal interests shall enter into a cooperative agreement according to the provisions of section 1962d–5b of title 42. The non-Federal interests shall agree to—

(1) provide to the Federal Government lands, easements, and rights-of-way, including those necessary for dredged material disposal facilities, and perform the necessary relocations required for construction, operation, and maintenance of such project;

(2) hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or negligence of the United States or its contractors;

(3) provide to the Federal Government the non-Federal share of all other costs of construction of such project; and

(4) in the case of a deep-draft harbor, be responsible for the non-Federal share of operation and maintenance required by subsection (b) of this section.

(f) Consideration of funding requirements and equitable apportionment

The Secretary shall ensure, to the extent practicable, that—

(1) funding requirements for operation and maintenance dredging of commercial navigation harbors are considered before Federal funds are obligated for payment of the Federal share of costs associated with the construction of dredged material disposal facilities in accordance with subsections (a) and (b);

(2) funds expended for such construction are apportioned equitably in accordance with regional needs; and

(3) use of a dredged material disposal facility designed, constructed, managed, or operated by a private entity is not precluded if, consistent with economic and environmental considerations, the facility is the least-cost alternative.

(Pub. L. 99–662, title I, §101, Nov. 17, 1986, 100 Stat. 4082; Pub. L. 100–676, §13(a), Nov. 17, 1988, 102 Stat. 4025; Pub. L. 102–580, title III, §333(b)(1), Oct. 31, 1992, 106 Stat. 4852; Pub. L. 104–303, title II, §201(a)–(d), Oct. 12, 1996, 110 Stat. 3671, 3672; Pub. L. 113–121, title II, §2102(b), June 10, 2014, 128 Stat. 1278; Pub. L. 114–322, title I, §1111, Dec. 16, 2016, 130 Stat. 1636.)

Editorial Notes

References in Text

This Act, referred to in subsec. (b)(1), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, as amended, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

Amendments

2016—Subsec. (a)(1). Pub. L. 114–322, §1111(1), substituted "June 10, 2014," for "November 17, 1986," in introductory provisions.

Subsec. (a)(1)(B). Pub. L. 114–322, §1111(2), substituted "50 feet" for "45 feet".

Subsec. (a)(1)(C). Pub. L. 114–322, §1111(3), substituted "50 feet" for "45 feet".

2014—Subsec. (b)(1). Pub. L. 113–121 substituted "50 feet" for "45 feet".

1996—Subsec. (a)(2). Pub. L. 104–303, §201(a)(1), inserted last sentence and struck out former last sentence which read as follows: "The value of lands, easements, rights-of-way, relocations, and dredged material disposal areas provided under paragraph (3) and the costs of relocations borne by the non-Federal interests under paragraph (4) shall be credited toward the payment required under this paragraph."

Subsec. (a)(3). Pub. L. 104–303, §201(a)(2), inserted "and" after "rights-of-way,", struck out ", and dredged material disposal areas" after "relocations under paragraph (4))", and inserted before period at end ", including any lands, easements, rights-of-way, and relocations (other than utility relocations accomplished under paragraph (4)) that are necessary for dredged material disposal facilities".

Subsec. (a)(5). Pub. L. 104–303, §201(a)(3), added par. (5).

Subsec. (b). Pub. L. 104–303, §201(b), designated existing provisions as par. (1), inserted heading, realigned margins, and substituted "by the Secretary pursuant to this Act or any other law approved after November 17, 1986" for "pursuant to this Act", and added par. (2).

Subsec. (e)(1). Pub. L. 104–303, §201(c), substituted "including those necessary for dredged material disposal facilities," for "and to provide dredged material disposal areas".

Subsec. (f). Pub. L. 104–303, §201(d), added subsec. (f).

1992—Subsec. (a)(3). Pub. L. 102–580 substituted "Except as provided under section 906(c), the non-Federal" for "The non-Federal".

1988—Subsec. (a)(2). Pub. L. 100–676 added par. (2) and struck out former par. (2) which read as follows: "The non-Federal interests for a project to which paragraph (1) applies shall pay an additional 10 percent of the cost of the general navigation features of the project in cash over a period not to exceed 30 years, at an interest rate determined pursuant to section 2216 of this title. The value of lands, easements, rights-of-way, relocations, and dredged material disposal areas provided under paragraph (3) shall be credited toward the payment required under this paragraph."

Statutory Notes and Related Subsidiaries

Effective Date of 1988 Amendment

Pub. L. 100–676, §13(b), Nov. 17, 1988, 102 Stat. 4026, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on November 17, 1986."

Deep Draft Harbor Cost Sharing

Pub. L. 106–53, title IV, §401, Aug. 17, 1999, 113 Stat. 322, provided that:

"(a) In General.—The Secretary shall undertake a study of non-Federal cost-sharing requirements for the construction and operation and maintenance of deep draft harbor projects to determine whether—

"(1) cost sharing adversely affects United States port development or domestic and international trade; and

"(2) any revision of the cost-sharing requirements would benefit United States domestic and international trade.

"(b) Recommendations.—

"(1) In general.—Not later than May 30, 2001, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives any recommendations that the Secretary may have in light of the study under subsection (a).

"(2) Considerations.—In making recommendations, the Secretary shall consider—

"(A) the potential economic, environmental, and budgetary impacts of any proposed revision of the cost-sharing requirements; and

"(B) the effect that any such revision would have on regional port competition."

Amendment of Cooperation Agreement

Pub. L. 104–303, title II, §201(f), Oct. 12, 1996, 110 Stat. 3673, provided that: "If requested by the non-Federal interest, the Secretary shall amend a project cooperation agreement executed on or before the date of the enactment of this Act [Oct. 12, 1996] to reflect the application of the amendments made by this section [amending this section and section 2241 of this title] to any project for which a contract for construction has not been awarded on or before that date."

Increases in Non-Federal Share of Costs

Pub. L. 104–303, title II, §201(g), Oct. 12, 1996, 110 Stat. 3673, provided that: "Nothing in this section [amending this section and section 2241 of this title and enacting provisions set out above] (including the amendments made by this section) shall increase, or result in the increase of, the non-Federal share of the costs of—

"(1) expanding any confined dredged material disposal facility that is operated by the Secretary and that is authorized for cost recovery through the collection of tolls;

"(2) any confined dredged material disposal facility for which the invitation for bids for construction was issued before the date of the enactment of this Act [Oct. 12, 1996]; and

"(3) expanding any confined dredged material disposal facility constructed under section 123 of the River and Harbor Act of 1970 (33 U.S.C. 1293a) if the capacity of the confined dredged material disposal facility was exceeded in less than 6 years."

Dredged Material Disposal Areas Study

Pub. L. 102–580, title II, §216, Oct. 31, 1992, 106 Stat. 4832, directed Secretary to conduct a study on the need for changes in Federal law and policy with respect to dredged material disposal areas for construction and maintenance of harbors and inland harbors by Secretary and, not later than 18 months after Oct. 31, 1992, to transmit to Congress a report on the results of the study, together with recommendations of the Secretary.

§2211a. Preserving United States harbors

(a) In general

Upon a request from a non-Federal interest, the Secretary shall review a report developed by the non-Federal interest that provides an economic justification for Federal investment in the operation and maintenance of a federally authorized harbor or inland harbor (referred to in this section as a "federally authorized harbor").

(b) Justification of investment

A report submitted under subsection (a) may provide for an economic justification of Federal investment in the operation and maintenance of a federally authorized harbor based on—

(1) the projected economic benefits, including transportation savings and job creation; and

(2) other factors, including navigation safety, national security, and sustainability of subsistence harbors.

(c) Written response

Not later than 180 days after the date on which the Secretary receives a report under subsection (a), the Secretary shall provide to the non-Federal interest a written response to the report, including an assessment of the information provided by the non-Federal interest.

(d) Prioritization

As the Secretary determines to be appropriate, the Secretary may use the information provided in the report under subsection (a) to justify additional operation and maintenance funding for a federally authorized harbor in accordance with section 2211(b) of this title.

(e) Limitation on statutory construction

Nothing in this section may be construed to preclude the operation and maintenance of a federally authorized harbor under section 2211(b) of this title.

(Pub. L. 113–121, title II, §2107, June 10, 2014, 128 Stat. 1281.)

Editorial Notes

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

§2212. Inland waterway transportation

(a) Construction

65 percent of the costs of construction—

(1) of each project authorized by title III of this Act,

(2) of the project authorized by section 652(j) of this title, and

(3) allocated to inland navigation for the project authorized by section 844 of this Act,

shall be paid only from amounts appropriated from the general fund of the Treasury. 35 percent of such costs shall be paid only from amounts appropriated from the Inland Waterways Trust Fund. For purposes of this subsection, the term "construction" shall include planning, designing, engineering, surveying, the acquisition of all lands, easements, and rights-of-way necessary for the project, including lands for disposal of dredged material, and relocations necessary for the project.

(b) Operation and maintenance

The Federal share of the cost of operation and maintenance of any project for navigation on the inland waterways is 100 percent.

(c) Floodgates on the Inland Waterways

(1) Operation and maintenance carried out by the Secretary

Notwithstanding any other provision of law, the Secretary shall be responsible for the operation and maintenance, including repair, of any flood gate, as well as any pumping station constructed within the channel as a single unit with that flood gate, that—

(A) was constructed as of June 10, 2014, as a feature of an authorized hurricane and storm damage reduction project; and

(B) crosses an inland or intracoastal waterway described in section 1804 of this title.

(2) Non-Federal cost share

The non-Federal share of the cost of operation, maintenance, repair, rehabilitation, and replacement of any structure under this subsection shall be 35 percent.

(d) Authorizations from general fund

Any Federal responsibility—

(1) with respect to a project authorized by title III or section 652(j) of this title, or

(2) with respect to the portion of the project authorized by section 844 allocated to inland navigation,

which responsibility is not provided for in subsection (a) of this section shall be paid only from amounts appropriated from the general fund of the Treasury.

(Pub. L. 99–662, title I, §102, Nov. 17, 1986, 100 Stat. 4084; Pub. L. 113–121, title II, §2013, June 10, 2014, 128 Stat. 1271; Pub. L. 117–263, div. H, title LXXXI, §8157(a), Dec. 23, 2022, 136 Stat. 3738.)

Editorial Notes

References in Text

Title III of this Act, referred to in subsecs. (a)(1) and (d)(1), is title III of Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4109, consisting of sections 301 and 302. The projects authorized by title III probably mean the projects authorized by section 301 of Pub. L. 99–662, which is not classified to the Code. Section 302 of Pub. L. 99–662, which established the Inland Waterways Users Board, is classified to section 2251 of this title.

Section 844 of this Act, referred to in subsecs. (a)(3) and (d)(2), is section 844 of Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4177, which is not classified to the Code.

Amendments

2022—Subsec. (a). Pub. L. 117–263 substituted "65 percent of the costs" for "One-half of the costs" in introductory provisions and "35 percent of such costs" for "One-half of such costs" in concluding provisions.

2014—Subsecs. (c), (d). Pub. L. 113–121 added subsec. (c) and redesignated former subsec. (c) as (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–263, div. H, title LXXXI, §8157(b), Dec. 23, 2022, 136 Stat. 3738, provided that: "The amendments made by subsection (a) [amending this section] shall apply beginning on October 1, 2022, to any construction of a project for navigation on the inland waterways that is new or ongoing on or after that date."

Inland Waterway Projects

Pub. L. 116–260, div. AA, title I, §109, Dec. 27, 2020, 134 Stat. 2624, as amended by Pub. L. 117–263, div. H, title LXXXI, §8157(c), Dec. 23, 2022, 136 Stat. 3738, provided that: "Notwithstanding section 102 of the Water Resources Development Act of 1986 (33 U.S.C. 2212), for a project for navigation on the inland waterways receiving a construction appropriation during any of fiscal years 2021 through 2022, 35 percent of the costs of construction of the project shall be paid from amounts appropriated from the Inland Waterways Trust Fund until such construction of the project is complete."

Acceptance of Contributed Funds To Increase Lock Operations

Pub. L. 113–121, title I, §1017, June 10, 2014, 128 Stat. 1223, as amended by Pub. L. 115–270, title I, §1135, Oct. 23, 2018, 132 Stat. 3783, provided that:

"(a) In General.—The Secretary [of the Army], after providing public notice, shall establish a pilot program for the acceptance and expenditure of funds contributed by non-Federal interests to increase the hours of operation of locks at water resources development projects.

"(b) Applicability.—The establishment of the pilot program under this section shall not affect the periodic review and adjustment of hours of operation of locks based on increases in commercial traffic carried out by the Secretary.

"(c) Public Comment.—Not later than 180 days before a proposed modification to the operation of a lock at a water resources development project will be carried out, the Secretary shall—

"(1) publish the proposed modification in the Federal Register; and

"(2) accept public comment on the proposed modification.

"(d) Reports.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act [June 10, 2014], the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report that evaluates the cost-savings resulting from reduced lock hours and any economic impacts of modifying lock operations.

"(2) Review of pilot program.—Not later than September 30, 2017, and each year thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes the effectiveness of the pilot program under this section.

"(e) Annual Review.—The Secretary shall carry out an annual review of the commercial use of locks and make any necessary adjustments to lock operations based on that review.

"(f) Termination.—The authority to accept funds under this section shall terminate 10 years after the date of enactment of this Act."

§2213. Flood control and other purposes

(a) Flood control

(1) General rule

The non-Federal interests for a project with costs assigned to flood control (other than a nonstructural project) shall—

(A) pay 5 percent of the cost of the project assigned to flood control during construction of the project;

(B) provide all lands, easements, rights-of-way, and dredged material disposal areas required only for flood control and perform all related necessary relocations; and

(C) provide that portion of the joint costs of lands, easements, rights-of-way, dredged material disposal areas, and relocations which is assigned to flood control.

(2) 35 percent minimum contribution

If the value of the contributions required under paragraph (1) of this subsection is less than 35 percent of the cost of the project assigned to flood control, the non-Federal interest shall pay during construction of the project such additional amounts as are necessary so that the total contribution of the non-Federal interests under this subsection is equal to 35 percent of the cost of the project assigned to flood control.

(3) 50 percent maximum

The non-Federal share under paragraph (1) shall not exceed 50 percent of the cost of the project assigned to flood control. The preceding sentence does not modify the requirement of paragraph (1)(A) of this subsection.

(4) Deferred payment of amount exceeding 30 percent

If the total amount of the contribution required under paragraph (1) of this subsection exceeds 30 percent of the cost of the project assigned to flood control, the non-Federal interests may pay the amount of the excess to the Secretary over a 15-year period (or such shorter period as may be agreed to by the Secretary and the non-Federal interests) beginning on the date construction of the project or separable element is completed, at an interest rate determined pursuant to section 2216 of this title. The preceding sentence does not modify the requirement of paragraph (1)(A) of this subsection.

(b) Projects using nonstructural, natural, or nature-based features

(1) In general

The non-Federal share of the cost of a flood risk management or hurricane and storm damage risk reduction measure using a nonstructural feature, or a natural feature or nature-based feature (as those terms are defined in section 2289a(a) of this title), shall be 35 percent of the cost of such measures. The non-Federal interests for any such measures shall be required to provide all lands, easements, rights-of-way, dredged material disposal areas, and relocations necessary for the project, but shall not be required to contribute any amount in cash during construction for a nonstructural feature if the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for such feature are estimated to exceed 35 percent.

(2) Non-Federal contribution in excess of 35 percent

At any time during construction of a project, if the Secretary determines that the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for the project, in combination with other costs contributed by the non-Federal interests, will exceed 35 percent, any additional costs for the project (not to exceed 65 percent of the total costs of the project) shall be a Federal responsibility and shall be contributed during construction as part of the Federal share.

(c) Other purposes

The non-Federal share of the cost assigned to other project purposes shall be as follows:

(1) hydroelectric power: 100 percent, except that the marketing of such power and the recovery of costs of constructing, operating, maintaining, and rehabilitating such projects shall be in accordance with existing law: Provided, That after November 17, 1986, the Secretary shall not submit to Congress any proposal for the authorization of any water resources project that has a hydroelectric power component unless such proposal contains the comments of the appropriate Power Marketing Administrator designated pursuant to section 7152 of title 42 concerning the appropriate Power Marketing Administration's ability to market the hydroelectric power expected to be generated and not required in the operation of the project under the applicable Federal power marketing law, so that, 100 percent of operation, maintenance and replacement costs, 100 percent of the capital investment allocated to the purpose of hydroelectric power (with interest at rates established pursuant to or prescribed by applicable law), and any other costs assigned in accordance with law for return from power revenues can be returned within the period set for the return of such costs by or pursuant to such applicable Federal power marketing law;

(2) municipal and industrial water supply: 100 percent;

(3) agricultural water supply: 35 percent;

(4) recreation, including recreational navigation: 50 percent of separable costs and, in the case of any harbor or inland harbor or channel project, 50 percent of joint and separable costs allocated to recreational navigation;

(5) hurricane and storm damage reduction: 35 percent;

(6) aquatic plant control: 50 percent of control operations; and

(7) environmental protection and restoration: 35 percent; except that nothing in this paragraph shall affect or limit the applicability of section 2283 of this title.

(d) Certain other costs assigned to project purposes

(1) Construction

Costs of constructing projects or measures for beach erosion control and water quality enhancement shall be assigned to appropriate project purposes listed in subsections (a), (b), and (c) and shall be shared in the same percentage as the purposes to which the costs are assigned, except that all costs assigned to benefits to privately owned shores (where use of such shores is limited to private interests) or to prevention of losses of private lands shall be borne by non-Federal interests and all costs assigned to the protection of federally owned shores shall be borne by the United States.

(2) Periodic nourishment

(A) In general

In the case of a project authorized for construction after December 31, 1999, except for a project for which a District Engineer's Report is completed by that date, the non-Federal cost of the periodic nourishment of the project, or any measure for shore protection or beach erosion control for the project, that is carried out—

(i) after January 1, 2001, shall be 40 percent;

(ii) after January 1, 2002, shall be 45 percent; and

(iii) after January 1, 2003, shall be 50 percent.

(B) Benefits to privately owned shores

All costs assigned to benefits of periodic nourishment projects or measures to privately owned shores (where use of such shores is limited to private interests) or to prevention of losses of private land shall be borne by the non-Federal interest.

(C) Benefits to federally owned shores

All costs assigned to the protection of federally owned shores for periodic nourishment measures shall be borne by the United States.

(e) Applicability

(1) In general

This section applies to any project (including any small project which is not specifically authorized by Congress and for which the Secretary has not approved funding before November 17, 1986), or separable element thereof, on which physical construction is initiated after April 30, 1986, as determined by the Secretary, except as provided in paragraph (2). For the purpose of the preceding sentence, physical construction shall be considered to be initiated on the date of the award of a construction contract.

(2) Exceptions

This section shall not apply to the Yazoo Basin, Mississippi, Demonstration Erosion Control Program, authorized by Public Law 98–8, or to the Harlan, Kentucky, or Barbourville, Kentucky, elements of the project authorized by section 202 of Public Law 96–367.

(f) "Separable element" defined

For purposes of this Act, the term "separable element" means a portion of a project—

(1) which is physically separable from other portions of the project; and

(2) which—

(A) achieves hydrologic effects, or

(B) produces physical or economic benefits,

which are separately identifiable from those produced by other portions of the project.

(g) Deferral of payment

(1) With respect to the projects listed in paragraph (2), no amount of the non-Federal share required under this section shall be required to be paid during the three-year period beginning on November 17, 1986.

(2) The projects referred to in paragraph (1) are the following:

(A) Boeuf and Tensas Rivers, Tensas Basin, Louisiana and Arkansas, authorized by the Flood Control Act of 1946;

(B) Eight Mile Creek, Arkansas, authorized by Public Law 99–88; and

(C) Rocky Bayou Area, Yazoo Backwater Area, Yazoo Basin, Mississippi, authorized by the Flood Control Act approved August 18, 1941.

(h) Assigned joint and separable costs

The share of the costs specified under this section for each project purpose shall apply to the joint and separable costs of construction of each project assigned to that purpose, except as otherwise specified in this Act.

(i) Lands, easements, rights-of-way, dredged material disposal areas, and relocations

Except as provided under section 2283(c) of this title, the non-Federal interests for a project to which this section applies shall provide all lands, easements, rights-of-way, and dredged material disposal areas required for the project and perform all necessary relocations, except to the extent limited by any provision of this section. The value of any contribution under the preceding sentence shall be included in the non-Federal share of the project specified in this section.

(j) Agreement

(1) Requirement for agreement

(A) In general

Any project to which this section applies (other than a project for hydroelectric power) shall be initiated only after non-Federal interests have entered into binding agreements with the Secretary to pay 100 percent of the operation, maintenance, and replacement and rehabilitation costs of the project, to pay the non-Federal share of the costs of construction required by this section, and to hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or negligence of the United States or its contractors.

(B) Inclusion

An agreement under subparagraph (A) shall include a brief description and estimation of the anticipated operations, maintenance, and replacement and rehabilitation costs of the non-Federal interest for the project.

(2) Elements of agreement

The agreement required pursuant to paragraph (1) shall be in accordance with the requirements of section 1962d–5b of title 42 and shall provide for the rights and duties of the United States and the non-Federal interest with respect to the construction, operation, and maintenance of the project, including, but not limited to, provisions specifying that, in the event the non-Federal interest fails to provide the required non-Federal share of costs for such work, the Secretary—

(A) shall terminate or suspend work on the project unless the Secretary determines that continuation of the work is in the interest of the United States or is necessary in order to satisfy agreements with other non-Federal interests in connection with the project; and

(B) may terminate or adjust the rights and privileges of the non-Federal interest to project outputs under the terms of the agreement.

(k) Payment options

(1) In general

Except as otherwise provided in this section, the Secretary may permit the full non-Federal contribution to be made without interest during construction of the project or separable element, or with interest at a rate determined pursuant to section 2216 of this title over a period of not more than thirty years from the date of completion of the project or separable element. Repayment contracts shall provide for recalculation of the interest rate at five-year intervals.

(2) Renegotiation of terms

(A) In general

At the request of a non-Federal interest, the Secretary and the non-Federal interest may renegotiate the terms and conditions of an eligible deferred payment, including—

(i) permitting the non-Federal contribution to be made without interest, pursuant to paragraph (1);

(ii) recalculation of the interest rate;

(iii) full or partial forgiveness of interest accrued during the period of construction; and

(iv) a credit against construction interest for a non-Federal investment that benefits the completion or performance of the project or separable element.

(B) Eligible deferred payment

An eligible deferred payment agreement under subparagraph (A) is an agreement for which—

(i) the non-Federal contribution was made with interest;

(ii) the period of project construction exceeds 10 years from the execution of a project partnership agreement or appropriation of funds; and

(iii) the construction interest exceeds $45,000,000.

(3) Credit for non-Federal contribution

(A) In general

The Secretary is authorized to credit any costs incurred by the non-Federal interest (including in-kind contributions) to remedy a design or construction deficiency of a covered project or separable element toward the non-Federal share of the cost of the covered project, if the Secretary determines the remedy to be integral to the completion or performance of the covered project.

(B) Credit of costs

If the non-Federal interest incurs costs or in-kind contributions for a project to remedy a design or construction deficiency of a project or separable element which has a 100 percent Federal cost share, and the Secretary determines the remedy to be integral to the completion or performance of the project, the Secretary is authorized to credit such costs to any interest accrued on a deferred non-Federal contribution.

(4) Treatment of pre-payment

(A) In general

Notwithstanding a deferred payment agreement with a non-Federal interest, the Secretary shall accept, without interest of any type, the repayment of a non-Federal contribution for any eligible deferred payment described in paragraph (2)(B) for which—

(i) the non-Federal interest makes a payment of at least $200,000,000 for that eligible deferred payment agreement on or before September 30, 2021;

(ii) the non-Federal interest repays an amount equal to 2/3 of the remaining principal by September 30, 2023; and

(iii) the non-Federal interest repays the balance of remaining principal by June 1, 2032.

(B) Repayment options

Repayment of a non-Federal contribution under subparagraph (A)(iii) may be satisfied through the provision by the non-Federal interest of fish and wildlife mitigation for one or more projects or separable elements, if the Secretary determines that—

(i) the non-Federal interest has incurred costs for the provision of mitigation that—

(I) equal or exceed the amount of the required repayment; and

(II) are in excess of any required non-Federal contribution for the project or separable element for which the mitigation is provided; and

(ii) the mitigation is integral to the project for which it is provided.

(l) Delay of payment

(1) Initial payment

At the request of any non-Federal interest the Secretary may permit such non-Federal interest to delay the initial payment of any non-Federal contribution under this section or section 2211 of this title for up to one year after the date when construction is begun on the project for which such contribution is to be made. Any such delay in initial payment shall be subject to interest charges for up to six months at a rate determined pursuant to section 2216 of this title.

(2) Interest

(A) In general

At the request of any non-Federal interest, the Secretary may waive the accrual of interest on any non-Federal cash contribution under this section or section 2211 of this title for a project for a period of not more than 1 year if the Secretary determines that—

(i) the waiver will contribute to the ability of the non-Federal interest to make future contributions; and

(ii) the non-Federal interest is in good standing under terms agreed to under subsection (k)(1).

(B) Limitations

The Secretary may grant not more than 1 waiver under subparagraph (A) for the same project.

(m) Ability to pay

(1) In general

Any cost-sharing agreement under this section for a feasibility study, or for construction of an environmental protection and restoration project, a flood control project, a project for navigation, storm damage protection, shoreline erosion, hurricane protection, or recreation, or an agricultural water supply project, shall be subject to the ability of the non-Federal interest to pay.

(2) Criteria and procedures

The ability of a non-Federal interest to pay shall be determined by the Secretary in accordance with criteria and procedures in effect under paragraph (3) on the day before December 11, 2000; except that such criteria and procedures shall be revised, and new criteria and procedures shall be developed, not later than December 31, 2007, to reflect the requirements of such paragraph (3).

(3) Revision of criteria and procedures

In revising criteria and procedures pursuant to paragraph (2), the Secretary—

(A) shall consider—

(i) per capita income data for the county or counties in which the project is to be located; and

(ii) the per capita non-Federal cost of construction of the project for the county or counties in which the project is to be located; and

(B) may consider additional criteria relating to the non-Federal interest's financial ability to carry out its cost-sharing responsibilities, to the extent that the application of such criteria does not eliminate areas from eligibility for a reduction in the non-Federal share as determined under subparagraph (A).

(4) Non-Federal share

Notwithstanding subsection (a), the Secretary may reduce the requirement that a non-Federal interest make a cash contribution for any project that is determined to be eligible for a reduction in the non-Federal share under criteria and procedures in effect under paragraphs (1), (2), and (3).

(n) Non-Federal contributions

(1) Prohibition on solicitation of excess contributions

The Secretary may not—

(A) solicit contributions from non-Federal interests for costs of constructing authorized water resources projects or measures in excess of the non-Federal share assigned to the appropriate project purposes listed in subsections (a), (b), and (c); or

(B) condition Federal participation in such projects or measures on the receipt of such contributions.

(2) Limitation on statutory construction

Nothing in this subsection shall be construed to affect the Secretary's authority under section 903(c).¹

(Pub. L. 99–662, title I, §103, Nov. 17, 1986, 100 Stat. 4084; Pub. L. 101–640, title III, §305(a), Nov. 28, 1990, 104 Stat. 4635; Pub. L. 102–580, title II, §201(a), title III, §333(b)(2), Oct. 31, 1992, 106 Stat. 4825, 4852; Pub. L. 104–303, title II, §§202(a)(1)(A), (2), (b)(1), 210(a), Oct. 12, 1996, 110 Stat. 3673, 3681; Pub. L. 106–53, title II, §§215(a), 219(c), Aug. 17, 1999, 113 Stat. 292, 295; Pub. L. 106–109, §5, Nov. 24, 1999, 113 Stat. 1495; Pub. L. 106–541, title II, §204, Dec. 11, 2000, 114 Stat. 2589; Pub. L. 110–114, title II, §§2001, 2019(a), Nov. 8, 2007, 121 Stat. 1067, 1078; Pub. L. 116–260, div. AA, title I, §§115(b), 143, title III, §351, Dec. 27, 2020, 134 Stat. 2627, 2653, 2717; Pub. L. 117–263, div. H, title LXXXI, §§8385, 8386, Dec. 23, 2022, 136 Stat. 3829, 3830.)

Editorial Notes

References in Text

Public Law 98–8, referred to in subsec. (e)(2), is Pub. L. 98–8, Mar. 24, 1983, 97 Stat. 13. For complete classification of this Act to the Code, see Tables.

Section 202 of Public Law 96–367, referred to in subsec. (e)(2), is section 202 of Pub. L. 96–367, title II, Oct. 1, 1980, 94 Stat. 1339, which is not classified to the Code.

This Act, referred to in subsecs. (f) and (h), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

The Flood Control Act of 1946, referred to in subsec. (g)(2)(A), is act July 24, 1946, ch. 596, 60 Stat. 641. For complete classification of this Act to the Code, see Tables.

Public Law 99–88, referred to in subsec. (g)(2)(B), is Pub. L. 99–88, Aug. 15, 1985, 99 Stat. 293, known as the Supplemental Appropriations Act, 1985. Provisions of Pub. L. 99–88 authorizing the project for Eight Mile Creek, Arkansas, are not classified to the Code. For complete classification of this Act to the Code, see Tables.

The Flood Control Act approved August 18, 1941, referred to in subsec. (g)(2)(C), is act Aug. 18, 1941, ch. 377, 55 Stat. 638. For complete classification of this Act to the Code, see Tables.

Section 903(c), referred to in subsec. (n)(2), is section 903(c) of Pub. L. 99–662, title IX, Nov. 17, 1986, 100 Stat. 4184, which is not classified to the Code.

Amendments

2022—Subsec. (k)(4). Pub. L. 117–263, §8386, designated existing provisions as subpar. (A) and inserted heading, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and realigned margins, substituted "$200,000,000" for "$200 million" in cl. (i), inserted "an amount equal to 2/3 of" after "repays" in cl. (ii), and added cl. (iii) of subpar. (A) and subpar. (B).

Subsec. (l). Pub. L. 117–263, §8385, struck out "initial" before "payment" in subsec. heading, designated existing provisions as par. (1) and inserted par. heading, and added par. (2).

2020—Subsec. (b). Pub. L. 116–260, §115(b)(1), substituted "Projects using nonstructural, natural, or nature-based features" for "Nonstructural flood control projects" in heading.

Subsec. (b)(1). Pub. L. 116–260, §115(b)(2), substituted "a flood risk management or hurricane and storm damage risk reduction measure using a nonstructural feature, or a natural feature or nature-based feature (as those terms are defined in section 2289a(a) of this title)," for "nonstructural flood control measures" and "cash during construction for a nonstructural feature if the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for such feature are estimated to exceed 35 percent" for "cash during construction of the project".

Subsec. (j)(1). Pub. L. 116–260, §143, designated existing provisions as subpar. (A), inserted heading, and added subpar. (B).

Subsec. (k). Pub. L. 116–260, §351, designated existing provisions as par. (1), inserted heading, and added pars. (2) to (4).

2007—Subsec. (m)(2). Pub. L. 110–114, §2019(a), substituted "December 31, 2007" for "180 days after December 11, 2000".

Subsec. (n). Pub. L. 110–114, §2001, added subsec. (n).

2000—Subsec. (m)(1), (2). Pub. L. 106–541, §204(1), added pars. (1) and (2) and struck out former pars. (1) and (2) which required any cost-sharing agreement to be subject to the ability of a non-Federal interest to pay and required the Secretary to determine ability to pay using certain criteria and procedures.

Subsec. (m)(3)(B), (C). Pub. L. 106–541, §204(2), redesignated subpar. (C) as (B) and struck out former subpar. (B) which read as follows: "shall not consider criteria (other than criteria described in subparagraph (A)) in effect on the day before October 12, 1996; and".

1999—Subsec. (b). Pub. L. 106–53, §219(c)(1), which directed insertion of the par. (1) designation and heading before "The non-Federal", was executed by making the insertion before that phrase the first place it appeared to reflect the probable intent of Congress.

Subsec. (b)(2). Pub. L. 106–53, §219(c)(2), added par. (2).

Subsec. (d). Pub. L. 106–53, §215(a), designated existing provisions as par. (1), inserted heading, and added par. (2).

Subsec. (d)(2)(A). Pub. L. 106–109 substituted "except for a project for which a District Engineer's Report is completed by that date," for "or for which a feasibility study is completed after that date,".

1996—Subsecs. (a)(2), (b). Pub. L. 104–303, §202(a)(1)(A), substituted "35 percent" for "25 percent" wherever appearing.

Subsec. (c)(7). Pub. L. 104–303, §210(a), added par. (7).

Subsec. (e)(1). Pub. L. 104–303, §202(a)(2), inserted at end "For the purpose of the preceding sentence, physical construction shall be considered to be initiated on the date of the award of a construction contract."

Subsec. (m). Pub. L. 104–303, §202(b)(1), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "Any cost-sharing agreement under this section for flood control or agricultural water supply shall be subject to the ability of a non-Federal interest to pay. The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary."

1992—Subsec. (i). Pub. L. 102–580, §333(b)(2), substituted "Except as provided under section 2283(c) of this title, the non-Federal" for "The non-Federal".

Subsec. (m). Pub. L. 102–580, §201(a), amended subsec. (m) generally. Prior to amendment, subsec. (m) read as follows:

"(1) General rule.—Any cost-sharing agreement under this section for flood control or agricultural water supply shall be subject to the ability of a non-Federal interest to pay.

"(2) Procedures.—

"(A) In general.—The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary.

"(B) Limitations.—The procedures established pursuant to this subsection shall provide for a reduction in any non-Federal cash contribution required under subsection (a)(2) of this section. In addition, such procedures shall provide for determination of the eligibility of the non-Federal interest for a reduction in the required cash contribution on the basis of local, not statewide, economic and financial data.

"(C) Regulations.—Not later than 1 year after November 28, 1990, the Secretary shall issue regulations establishing the procedures required by this paragraph."

1990—Subsec. (m). Pub. L. 101–640 amended subsec. (m) generally. Prior to amendment, subsec. (m) read as follows: "Any cost-sharing agreement under this section for flood control or agricultural water supply shall be subject to the ability of a non-Federal interest to pay. The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–303, title II, §202(a)(1)(B), Oct. 12, 1996, 110 Stat. 3673, provided that: "The amendments made by subparagraph (A) [amending this section] shall apply to any project authorized after the date of the enactment of this Act [Oct. 12, 1996] and to any flood control project that is not specifically authorized by Congress for which a Detailed Project Report is approved after such date of enactment or, in the case of a project for which no Detailed Project Report is prepared, construction is initiated after such date of enactment."

Pub. L. 104–303, title II, §202(b)(2), Oct. 12, 1996, 110 Stat. 3674, provided that:

"(A) Generally.—Subject to subparagraph (C), the amendment made by paragraph (1) [amending this section] shall apply to any project, or separable element thereof, with respect to which the Secretary and the non-Federal interest enter into a project cooperation agreement after December 31, 1997.

"(B) Amendment of cooperation agreement.—If requested by the non-Federal interest, the Secretary shall amend a project cooperation agreement executed on or before the date of the enactment of this Act [Oct. 12, 1996] to reflect the application of the amendment made by paragraph (1) to any project for which a contract for construction has not been awarded on or before such date of enactment.

"(C) Non-federal option.—If requested by the non-Federal interest, the Secretary shall apply the criteria and procedures established pursuant to section 103(m) of the Water Resources Development Act of 1986 [subsec. (m) of this section] as in effect on the day before the date of the enactment of this Act for projects that are authorized before the date of the enactment of this Act."

[Reference to "project cooperation agreement" deemed to be reference to "project partnership agreement", see section 2003(f)(2) of Pub. L. 110–114, set out as a note under section 1962d–5b of Title 42, The Public Health and Welfare.]

Pub. L. 104–303, title II, §210(b), Oct. 12, 1996, 110 Stat. 3681, provided that: "The amendments made by subsection (a) [amending this section] apply only to projects authorized after the date of the enactment of this Act [Oct. 12, 1996]."

Continuation of Existing Regulations

Pub. L. 101–640, title III, §305(b), Nov. 28, 1990, 104 Stat. 4635, provided that: "Regulations issued to carry out section 103(m) of the Water Resources Development Act of 1986 [33 U.S.C. 2213(m)] before the date of the enactment of this Act [Nov. 28, 1990] and in effect on such date shall continue in effect until regulations are issued pursuant to paragraph (2)(C) of such section, as added by subsection (a) of this section."

Reports to Congress

Pub. L. 100–71, title I, July 11, 1987, 101 Stat. 401, provided that: "The Secretary of the Army shall file a report with the appropriate committees of the House of Representatives and the Senate within ninety days after a written request is made pursuant to the provisions of subsection (m) of section 103 of Public Law 99–662 [33 U.S.C. 2213(m)] indicating the action taken on the request. In addition, the Secretary of the Army shall file a report with the appropriate committees of the House of Representatives and the Senate within ninety days after enactment of this Act [July 11, 1987] listing any project or study falling under the provisions of subsection (e)(1) of section 103 of Public Law 99–662."

¹ See References in Text note below.

§2213a. Treatment of certain benefits and costs

(a) In general

In the case of a flood risk management or coastal storm risk management project in a region of moderate or high seismic hazard, for the purpose of a benefit-cost analysis for the project, the Secretary shall not include in that analysis any additional design and construction costs resulting from addressing seismic concerns.

(b) Savings provision

Except with respect to the benefit-cost analysis, the additional costs referred to in subsection (a) shall be—

(1) included in the total project cost; and

(2) subject to cost-share requirements otherwise applicable to the project.

(Pub. L. 116–260, div. AA, title I, §152, Dec. 27, 2020, 134 Stat. 2658; Pub. L. 117–263, div. H, title LXXXI, §8380, Dec. 23, 2022, 136 Stat. 3828.)

Editorial Notes

Codification

Section was enacted as part of the Water Resources Development Act of 2020, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Amendments

2022—Subsec. (a). Pub. L. 117–263 substituted "a flood risk management or coastal storm risk management project in a region" for "flood risk management project that incidentally generates seismic safety benefits in regions".

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of div. AA of Pub. L. 116–260, set out as a note under section 2201 of this title.

§2214. General credit for flood control

(a) Guidelines

Within one year after November 17, 1986, the Secretary shall issue guidelines to carry out this section, consistent with the principles and guidelines on project formulation. The guidelines shall include criteria for determining whether work carried out by non-Federal interests is compatible with a project for flood control and procedures for making such determinations. The guidelines under this section shall be promulgated after notice in the Federal Register and opportunity for comment.

(b) Analysis of costs and benefits

The guidelines established under subsection (a) shall provide for the Secretary to consider, in analyzing the costs and benefits of a proposed project for flood control, the costs and benefits produced by any flood control work carried out by non-Federal interests that the Secretary determines to be compatible with the project. For purposes of the preceding sentence the Secretary may consider only work carried out after the date which is 5 years before the first obligation of funds for the reconnaissance study for such project. In no case may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, unless otherwise provided in this Act.

(c) Crediting of non-Federal share

The guidelines established under subsection (a) shall provide for crediting the cost of work carried out by the non-Federal interests against the non-Federal share of the cost of an authorized project for flood control as follows:

(1) Work which is carried out after the end of the reconnaissance study and before the submission to Congress of the final report of the Chief of Engineers on the project and which is determined by the Secretary to be compatible with the project shall be included as part of the project and shall be recommended by the Secretary in the final report for credit against the non-Federal share of the cost of the project.

(2) Work which is carried out after submission of the final report of the Chief of Engineers to Congress and which is determined by the Secretary to be compatible with the project shall be considered as part of the project and shall be credited by the Secretary against the non-Federal share of the cost of the project in accordance with the guidelines promulgated pursuant to subsection (a).

In no event may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, unless otherwise provided in this Act.

(d) Procedure for work done before November 17, 1986

The Secretary shall consider, under subsections (b) and (c), work carried out before November 17, 1986, by non-Federal interests on a project for flood control, if the non-Federal interests apply to the Secretary for consideration of such work not later than March 31, 1987. The Secretary shall make determinations under subsections (b) and (c) with respect to such work not later than 6 months after guidelines are issued under subsection (a).

(e) Procedure for work done after November 17, 1986

The Secretary shall consider work carried out after November 17, 1986, by non-Federal interests on a project for flood control under subsections (b) and (c) in accordance with the guidelines issued under subsection (a). The guidelines shall require prior approval by the Secretary of any flood control work carried out after November 17, 1986, in order to be considered under this section, taking into account the economic and environmental feasibility of the project.

(f) Limitation not applicable

Any flood control work included as part of the non-Federal share of the cost of a project under this section shall not be subject to the limitation contained in the last sentence of section 1962d–5a(a) of title 42.

(g) Cash contribution not affected

Nothing in this section affects the requirement of section 2213(a)(1)(A) of this title.

(Pub. L. 99–662, title I, §104, Nov. 17, 1986, 100 Stat. 4087.)

Editorial Notes

References in Text

This Act, referred to in subsecs. (b) and (c), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

§2215. Feasibility studies; planning, engineering, and design

(a) Feasibility studies

(1) Cost sharing

(A) In general

The Secretary shall not initiate any feasibility study for a water resources project after November 17, 1986, until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost of the study.

(B) Payment of cost share during period of study

During the period of the study, the non-Federal share of the cost of the study payable under subparagraph (A) shall be 50 percent of the sum of—

(i) the cost estimate for the study as contained in the feasibility cost-sharing agreement; and

(ii) any excess of the cost of the study over the cost estimate if the excess results from—

(I) a change in Federal law; or

(II) a change in the scope of the study requested by the non-Federal interests.

(C) Payment of cost share on authorization of project or termination of study

(i) Project timely authorized

Except as otherwise agreed to by the Secretary and the non-Federal interests and subject to clause (ii), the non-Federal share of any excess of the cost of the study over the cost estimate (excluding any excess cost described in subparagraph (B)(ii)) shall be payable on the date on which the Secretary and the non-Federal interests enter into an agreement pursuant to section 2211(e) or 2213(j) of this title with respect to the project.

(ii) Project not timely authorized

If the project that is the subject of the study is not authorized by the date that is 5 years after the completion of the final report of the Chief of Engineers concerning the study or the date that is 2 years after the termination of the study, the non-Federal share of any excess of the cost of the study over the cost estimate (excluding any excess cost described in subparagraph (B)(ii)) shall be payable to the United States on that date.

(D) Amendment of cost estimate

The cost estimate referred to in subparagraph (B)(i) may be amended only by agreement of the Secretary and the non-Federal interests.

(E) In-kind contributions

The non-Federal share required under this paragraph may be satisfied by the provision of services, materials, supplies, or other in-kind services necessary to prepare the feasibility report.

(2) Applicability

This subsection shall not apply to any water resources study primarily designed for the purposes of navigational improvements in the nature of dams, locks, and channels on the Nation's system of inland waterways.

(3) Detailed project reports

The requirements of this subsection that apply to a feasibility study also shall apply to a study that results in a detailed project report, except that—

(A) the first $100,000 of the costs of a study that results in a detailed project report shall be a Federal expense; and

(B) paragraph (1)(C)(ii) shall not apply to such a study.

(b) Planning and engineering

The Secretary shall not initiate any planning or engineering for a water resources project until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost of the planning and engineering during the period of the planning and engineering. Costs of planning and engineering of projects for which non-Federal interests contributed 50 percent of the cost of the feasibility study shall be treated as costs of construction.

(c) Design

Costs of design of a water resources project shall be shared in the same percentage as the purposes of such project.

(d) Definitions

In this section, the following definitions apply:

(1) Detailed project report

The term "detailed project report" means a report for a project not specifically authorized by Congress in law or otherwise that determines the feasibility of the project with a level of detail appropriate to the scope and complexity of the recommended solution and sufficient to proceed directly to the preparation of contract plans and specifications. The term includes any associated environmental impact statement and mitigation plan. For a project for which the Federal cost does not exceed $1,000,000, the term includes a planning and design analysis document.

(2) Feasibility study

The term "feasibility study" means a study that results in a feasibility report under section 2282 of this title, and any associated environmental impact statement and mitigation plan, prepared by the Corps of Engineers for a water resources project. The term includes a study that results in a project implementation report prepared under title VI of the Water Resources Development Act of 2000 (114 Stat. 2680–2694), a general reevaluation report, and a limited reevaluation report.

(Pub. L. 99–662, title I, §105, Nov. 17, 1986, 100 Stat. 4088; Pub. L. 101–640, title III, §301, Nov. 28, 1990, 104 Stat. 4633; Pub. L. 104–303, title II, §203(a), Oct. 12, 1996, 110 Stat. 3677; Pub. L. 106–541, title II, §225, Dec. 11, 2000, 114 Stat. 2598; Pub. L. 110–114, title II, §2043(a), Nov. 8, 2007, 121 Stat. 1101.)

Editorial Notes

References in Text

The Water Resources Development Act of 2000, referred to in subsec. (d)(2), is Pub. L. 106–541, Dec. 11, 2000, 114 Stat. 2572. Title VI of the Act is not classified to the Code. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 2201 of this title and Tables.

Amendments

2007—Subsec. (a)(3). Pub. L. 110–114, §2043(a)(1), added par. (3).

Subsec. (b). Pub. L. 110–114, §2043(a)(2), struck out "authorized by this Act" before "for a water resources project".

Subsec. (d). Pub. L. 110–114, §2043(a)(3), added subsec. (d).

2000—Subsec. (a)(1)(E). Pub. L. 106–541 substituted "The" for "Not more than ½ of the".

1996—Subsec. (a)(1). Pub. L. 104–303, §203(a)(1), inserted heading and amended text of par. (1) generally. Prior to amendment text read as follows: "The Secretary shall not initiate any feasibility study for a water resources project after November 17, 1986, until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost for such study during the period of such study. Not more than one-half of such non-Federal contribution may be made by the provision of services, materials, supplies, or other in-kind services necessary to prepare the feasibility report."

Subsec. (a)(2). Pub. L. 104–303, §203(a)(2), inserted heading.

1990—Subsec. (b). Pub. L. 101–640 inserted at end "Costs of planning and engineering of projects for which non-Federal interests contributed 50 percent of the cost of the feasibility study shall be treated as costs of construction."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–303, title II, §203(b), Oct. 12, 1996, 110 Stat. 3678, provided that: "The amendments made by subsection (a) [amending this section] shall apply notwithstanding any feasibility cost-sharing agreement entered into by the Secretary and the non-Federal interests. On request of the non-Federal interest, the Secretary shall amend any feasibility cost-sharing agreements in effect on the date of the enactment of this Act [Oct. 12, 1996] so as to conform the agreements with the amendments."

No Requirement of Reimbursement

Pub. L. 104–303, title II, §203(c), Oct. 12, 1996, 110 Stat. 3678, provided that: "Nothing in this section [amending this section and enacting provisions set out above] or any amendment made by this section requires the Secretary to reimburse the non-Federal interests for funds previously contributed for a study."

§2216. Rate of interest

Whenever a non-Federal interest is required or elects to repay an amount under this Act over a period of time, the amount to be repaid shall include interest at a rate determined by the Secretary of the Treasury, taking into consideration the average market yields on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the reimbursement period, during the month preceding the fiscal year in which costs for the construction of the project are first incurred (or in the case of recalculation the fiscal year in which the recalculation is made), plus a premium of one-eighth of one percentage point for transaction costs; except that such rates for hydroelectric power shall be in accordance with existing law.

(Pub. L. 99–662, title I, §106, Nov. 17, 1986, 100 Stat. 4089.)

Editorial Notes

References in Text

This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

§2217. Limitation on applicability of certain provisions in reports

If any provision in any report designated by this Act recommends that a State contribute in cash 5 percent of the construction costs allocated to non-vendible project purposes and 10 percent of the construction costs allocated to vendible project purposes, such provision shall not apply to the project recommended in such report.

(Pub. L. 99–662, title I, §107, Nov. 17, 1986, 100 Stat. 4089.)

Editorial Notes

References in Text

This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

§2218. General applicability of cost sharing

Unless otherwise specified, the cost sharing provisions of this subchapter shall apply to all projects in this Act. The Federal share of any cost of a project authorized by this Act for which cost a Federal share is not established in this subchapter, shall be the share of such cost otherwise provided by law.

(Pub. L. 99–662, title I, §108, Nov. 17, 1986, 100 Stat. 4089.)

Editorial Notes

References in Text

This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

§2219. Definitions

For purposes of this subchapter, terms shall have the meanings given by section 2241 of this title.

(Pub. L. 99–662, title I, §109, Nov. 17, 1986, 100 Stat. 4089.)

§2220. Rivers and harbors and other waterways projects for benefit of navigation, flood control, hurricane protection, beach erosion control, and other purposes

(a) Congressional declaration of policy; purchase of indebtedness and loans to local interests to meet contribution requirements

In the prosecution of projects for rivers and harbors and other waterways for the benefit of navigation, the control of destructive flood waters, hurricane protection, beach erosion control, and for other purposes, authorized to be prosecuted under the direction of the Secretary of the Army under the supervision of the Chief of Engineers in accordance with plans adopted and authorized by the Congress, it is hereby declared to be the policy of the Congress, that whenever such projects are located wholly or partially within an area which is eligible for financial assistance under the Public Works and Economic Development Act of 1965 [42 U.S.C. 3121 et seq.], the Secretary of Commerce is authorized to purchase evidences of indebtedness and to make loans for a period not exceeding fifty years to enable responsible local interests to meet the requirements of local cooperation pertaining to contributions toward the cost of construction of such projects within such areas.

(b) Authorization of appropriations

There is hereby authorized to be appropriated to carry out this section, not to exceed $10,000,000 per fiscal year for the fiscal year ending June 30, 1966, and for each fiscal year thereafter through and including the fiscal year ending June 30, 1970.

(Pub. L. 89–298, title II, §217, Oct. 27, 1965, 79 Stat. 1088.)

Editorial Notes

References in Text

The Public Works and Economic Development Act of 1965, referred to in subsec. (a), is Pub. L. 89–136, Aug. 26, 1965, 79 Stat. 552, which is classified generally to chapter 38 (§3121 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 3121 of Title 42 and Tables.

Codification

Section was formerly classified to section 3142a of Title 42, The Public Health and Welfare.

Section was not enacted as part of the Water Resources Development Act of 1986 which comprises this chapter.

§2221. Cost limitations on projects

Beginning in fiscal year 2006 and thereafter, agreements proposed for execution by the Assistant Secretary of the Army for Civil Works or the United States Army Corps of Engineers after November 19, 2005, pursuant to section 560 of this title; section 561 ¹ of this title; the Civil Functions Appropriations Act, 1936, Public Law 75–208 ¹ ; section 1962d–5a of title 42; sections 2214, 2231, and 2232 of this title; section 426i–1 ¹ of this title; section 701b–13 ¹ of this title; and any other specific project authority, shall be limited to total credits and reimbursements for all applicable projects not to exceed $100,000,000 in each fiscal year.

(Pub. L. 109–103, title I, §102, Nov. 19, 2005, 119 Stat. 2253.)

Editorial Notes

References in Text

Section 561 of this title, referred to in text, was repealed by Pub. L. 115–270, title I, §1166(c), Oct. 23, 2018, 132 Stat. 3798.

The Civil Functions Appropriations Act, 1936, Public Law 75–208, referred to in text, may mean the War Department Civil Appropriation Act, 1938, act July 19, 1937, ch. 511, 50 Stat. 515, 518, which amended act June 22, 1936, ch. 688, §5, by adding the proviso classified to section 701h of this title.

Sections 426i–1 and 701b–13 of this title, referred to in text, were repealed by Pub. L. 113–121, title I, §1014(c)(2), (3), June 10, 2014, 128 Stat. 1222.

Codification

Section was enacted as part of the Energy and Water Development Appropriations Act, 2006, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Prior Provisions

Provisions similar to those in this section were contained in the following prior appropriation acts:

Pub. L. 108–447, div. C, title I, §101, Dec. 8, 2004, 118 Stat. 2941; Pub. L. 109–13, div. A, title VI, §6005, May 11, 2005, 119 Stat. 282.

Pub. L. 108–137, title I, §101, Dec. 1, 2003, 117 Stat. 1833.

Pub. L. 108–7, div. D, title I, §101, Feb. 20, 2003, 117 Stat. 138.

Pub. L. 107–66, title I, §103, Nov. 12, 2001, 115 Stat. 493.

Pub. L. 106–377, §1(a)(2) [title I, §102], Oct. 27, 2000, 114 Stat. 1441, 1441A-65.

Pub. L. 106–60, title I, §102, Sept. 29, 1999, 113 Stat. 487.

¹ See References in Text note below.

§2222. Use of other Federal funds

The non-Federal interest for a water resources development study or project, including a study or project under a continuing authority program (as defined in section 2282d(c)(1)(D) of this title) and a study or project under an environmental infrastructure assistance program, may use, and the Secretary shall accept, funds provided by a Federal agency under any other Federal program, to satisfy, in whole or in part, the non-Federal share of the cost of the study or project if—

(1) the statutory authority for the funds provided by the Federal agency does not expressly prohibit use of the funds for a study or project of the Corps of Engineers; and

(2) the Federal agency that provides the funds determines that the study or project activities for which the funds will be used are otherwise eligible for funding under such statutory authority.

(Pub. L. 110–114, title II, §2007, Nov. 8, 2007, 121 Stat. 1073; Pub. L. 117–263, div. H, title LXXXI, §8149, Dec. 23, 2022, 136 Stat. 3731.)

Editorial Notes

Amendments

2022—Pub. L. 117–263 substituted "water resources development study or project, including a study or project under a continuing authority program (as defined in section 2282d(c)(1)(D) of this title) and a study or project under an environmental infrastructure assistance program," for "water resources study or project" and substituted "if—" and pars. (1) and (2) for "if the Federal agency that provides the funds determines that the funds are authorized to be used to carry out the study or project."

Codification

Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 110–114, set out as a note under section 2201 of this title.

§2223. Transfer of excess credit

(a) Application of credit

(1) In general

Subject to subsection (b), the Secretary may apply credit for in-kind contributions provided by a non-Federal interest that are in excess of the required non-Federal cost share for a water resources development study or project toward the required non-Federal cost share for a different water resources development study or project.

(2) Application prior to completion of project

On request of a non-Federal interest, the credit described in paragraph (1) may be applied prior to completion of a study or project, if the credit amount is verified by the Secretary.

(3) Studies and projects with multiple non-Federal interests

A credit described in paragraph (1) for a study or project with multiple non-Federal interests may be applied to the required non-Federal cost share for a study or project of any such non-Federal interest, if each such non-Federal interest agrees in writing to such application.

(b) Restrictions

(1) In general

Except for subsection (a)(4)(D)(i) of that section, the requirements of section 1962d–5b of title 42 (as amended by section 1018(a)) shall apply to any credit under this section.

(2) Conditions

Credit in excess of the non-Federal share for a study or project may be approved under this section only if—

(A) the non-Federal interest submits a comprehensive plan to the Secretary that identifies—

(i) the studies and projects for which the non-Federal interest intends to provide in-kind contributions for credit that are in excess of the non-Federal cost share for the study or project; and

(ii) the authorized studies and projects to which that excess credit would be applied;

(B) the Secretary approves the comprehensive plan; and

(C) the total amount of credit does not exceed the total non-Federal share for the studies and projects in the approved comprehensive plan.

(3) Conditional approval of excess credit

Notwithstanding paragraph (2)(A)(ii), the Secretary may approve credit in excess of the non-Federal share for a study or project prior to the identification of each authorized study or project to which the excess credit will be applied, subject to the condition that the non-Federal interest agrees to submit for approval by the Secretary an amendment to the comprehensive plan prepared under paragraph (2) that identifies each authorized study or project in advance of execution of the feasibility cost-sharing agreement or project partnership agreement for that authorized study or project.

(c) Additional criteria

In evaluating a request to apply credit in excess of the non-Federal share for a study or project toward a different study or project, the Secretary shall consider whether applying that credit will—

(1) help to expedite the completion of a project or group of projects;

(2) reduce costs to the Federal Government; and

(3) aid the completion of a project that provides significant flood risk reduction or environmental benefits.

(d) Termination of authority

The authority provided in this section shall terminate on December 31, 2028.

(e) Report

(1) Deadlines

(A) In general

Not later than 2 years after June 10, 2014, and once every 2 years thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available an interim report on the use of the authority under this section.

(B) Final report

Not later than December 31, 2028, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a final report on the use of the authority under this section.

(2) Inclusions

The reports described in paragraph (1) shall include—

(A) a description of the use of the authority under this section during the reporting period;

(B) an assessment of the impact of the authority under this section on the time required to complete projects; and

(C) an assessment of the impact of the authority under this section on other water resources projects.

(Pub. L. 113–121, title I, §1020, June 10, 2014, 128 Stat. 1227; Pub. L. 114–322, title I, §1166, Dec. 16, 2016, 130 Stat. 1670; Pub. L. 117–263, div. H, title LXXXI, §8383, Dec. 23, 2022, 136 Stat. 3829.)

Editorial Notes

References in Text

Section 1018(a), referred to in subsec. (b)(1), means section 1018(a) of Pub. L. 113–121.

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Amendments

2022—Subsec. (a)(3). Pub. L. 117–263, §8383(1), added par. (3).

Subsec. (b)(3). Pub. L. 117–263, §8383(2), added par. (3).

Subsec. (d). Pub. L. 117–263, §8383(3), substituted "on December 31, 2028" for "10 years after June 10, 2014".

Subsec. (e)(1)(B). Pub. L. 117–263, §8383(4), substituted "December 31, 2028" for "10 years after June 10, 2014".

2016—Subsec. (a). Pub. L. 114–322 substituted "Application of credit" for "In general" in subsec. heading, designated existing provisions as par. (1) and inserted par. (1) heading, and added par. (2).

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

§2224. Crediting authority for federally authorized navigation projects

A non-Federal interest may carry out operation and maintenance activities for an authorized navigation project, subject to the condition that the non-Federal interest complies with all Federal laws and regulations applicable to such operation and maintenance activities, and may receive credit for the costs incurred by the non-Federal interest in carrying out such activities towards the share of construction costs of that non-Federal interest for another element of the same project or another authorized navigation project, except that in no instance may such credit exceed 20 percent of the total costs associated with construction of the general navigation features of the project for which such credit may be applied pursuant to this section.

(Pub. L. 113–121, title I, §1021, June 10, 2014, 128 Stat. 1228.)

Editorial Notes

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

§2225. Credit or reimbursement

(a) Requests for credits

With respect to an authorized flood damage reduction project, or separable element thereof, that has been constructed by a non-Federal interest under section 701b–13 ¹ of this title, or an authorized coastal navigation project that has been constructed by the Corps of Engineers pursuant to section 561 of this title before October 23, 2018, the Secretary may provide to the non-Federal interest, at the request of the non-Federal interest, a credit in an amount equal to the estimated Federal share of the cost of the project or separable element, in lieu of providing to the non-Federal interest a reimbursement in that amount or reimbursement of funds of an equivalent amount, subject to the availability of appropriations.

(b) Application of credits

At the request of the non-Federal interest, the Secretary may apply all or a portion of such credit to the share of the cost of the non-Federal interest of carrying out other flood damage reduction and coastal navigation projects or studies.

(c) Application of reimbursement

At the request of the non-Federal interest, the Secretary may apply such funds, subject to the availability of appropriations, equal to the share of the cost of the non-Federal interest of carrying out other flood damage reduction and coastal navigation projects or studies.

(Pub. L. 113–121, title I, §1022, June 10, 2014, 128 Stat. 1228; Pub. L. 114–322, title I, §1171, Dec. 16, 2016, 130 Stat. 1671; Pub. L. 115–270, title I, §1136(a), Oct. 23, 2018, 132 Stat. 3783.)

Editorial Notes

References in Text

Section 701b–13 of this title, referred to in subsec. (a), was repealed by Pub. L. 113–121, title I, §1014(c)(3), June 10, 2014, 128 Stat. 1222.

Amendments

2018—Pub. L. 115–270 amended section generally. Prior to amendment, section related to credit in lieu of reimbursement.

2016—Subsec. (a). Pub. L. 114–322, §1171(1), substituted "for which a written agreement with the Corps of Engineers for construction was finalized on or before December 31, 2014, under section 701b–13 of this title (as it existed before the repeal made by section 1014(c)(3))" for "that has been constructed by a non-Federal interest under section 701b–13 of this title before June 10, 2014".

Subsec. (b). Pub. L. 114–322, §1171(2), substituted "non-Federal share of the cost of carrying out other water resources development projects or studies of the non-Federal interest" for "share of the cost of the non-Federal interest of carrying out other flood damage reduction projects or studies".

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

¹ See References in Text note below.

§2226. Water resources projects on Federal land

(a) In general

Subject to subsection (b), the Secretary may carry out an authorized water resources development project on Federal land that is under the administrative jurisdiction of another Federal agency where the cost of the acquisition of such Federal land has been paid for by the non-Federal interest for the project.

(b) MOU required

The Secretary may carry out a project pursuant to subsection (a) only after the non-Federal interest has entered into a memorandum of understanding with the Federal agency that includes such terms and conditions as the Secretary determines to be necessary.

(c) Applicability

Nothing in this section alters any non-Federal cost-sharing requirements for the project.

(Pub. L. 113–121, title I, §1025, June 10, 2014, 128 Stat. 1229.)

Editorial Notes

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

§2227. Clarification of impacts to other Federal facilities

In any case where the modification or construction of a water resources development project carried out by the Secretary adversely impacts other Federal facilities, the Secretary may accept from other Federal agencies such funds as may be necessary to address the adverse impact, including by removing, relocating, or reconstructing those facilities.

(Pub. L. 113–121, title I, §1026, June 10, 2014, 128 Stat. 1229.)

Editorial Notes

Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Statutory Notes and Related Subsidiaries

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.