CHAPTER 36 —WATER RESOURCES DEVELOPMENT
SUBCHAPTER I—COST SHARING
SUBCHAPTER II—HARBOR DEVELOPMENT
SUBCHAPTER III—INLAND WATERWAY TRANSPORTATION SYSTEM
SUBCHAPTER IV—WATER RESOURCES STUDIES
SUBCHAPTER V—GENERAL PROVISIONS
§2201. "Secretary" defined
For purposes of this Act, the term "Secretary" means the Secretary of the Army.
(
Editorial Notes
References in Text
This Act, referred to in text, is
Statutory Notes and Related Subsidiaries
Short Title of 2022 Amendment
Short Title of 2020 Amendment
Short Title of 2018 Amendment
Short Title of 2016 Amendment
Short Title of 2014 Amendment
Short Title of 2007 Amendment
Short Title of 2000 Amendment
Short Title of 1999 Amendment
Short Title of 1996 Amendment
Short Title of 1992 Amendment
Short Title of 1990 Amendment
Short Title of 1988 Amendment
Short Title
Pilot Programs on the Formulation of Corps of Engineers Projects in Rural Communities and Economically Disadvantaged Communities
"(a)
"(b)
"(1)
"(2)
"(A) annually publish a notice in the Federal Register that requests from non-Federal interests proposals for the potential feasibility study of a flood risk management project or hurricane and storm damage risk reduction project for an economically disadvantaged community;
"(B) upon request of a non-Federal interest for such a project, provide technical assistance to such non-Federal interest in the formulation of a proposal for a potential feasibility study to be submitted to the Secretary under the pilot program; and
"(C) review such proposals and, subject to the availability of appropriations, annually select 10 feasibility studies for such projects to be carried out by the Secretary, in coordination with the non-Federal interest, under this pilot program.
"(3)
"(A) the percentage of people living in poverty in the county or counties (or county-equivalent entity or entities) in which the project is located is greater than the percentage of people living in poverty in the State, based on census bureau data;
"(B) the percentage of families with income above the poverty threshold but below the average household income in the county or counties (or county-equivalent entity or entities) in which the project is located is greater than such percentage for the State, based on census bureau data;
"(C) the percentage of the population that identifies as belonging to a minority or indigenous group in the county or counties (or county-equivalent entity or entities) in which the project is located is greater than the average such percentage in the State, based on census bureau data; and
"(D) the project is addressing flooding or hurricane or storm damage effects that have a disproportionate impact on a rural community, a minority community, or an Indian Tribe.
"(4)
"(5)
"(6)
"(7)
"(c)
"(1)
"(2)
"(A) the community to be served by the project is an economically disadvantaged community or a rural community;
"(B) the long-term life safety, economic viability, and environmental sustainability of the community would be threatened without the project; and
"(C) the project is consistent with the requirements of section 1 of the Flood Control Act of 1936 (
"(3)
"(4)
"(d)
"(e)
"(1) a description of proposals received from non-Federal interests pursuant to subsection (b)(2)(A);
"(2) a description of technical assistance provided to non-Federal interests under subsection (b)(2)(B);
"(3) a description of proposals selected under subsection (b)(2)(C) and criteria used to select such proposals;
"(4) a description of the projects evaluated or recommended by the Secretary under subsection (c);
"(5) a description of the quantifiable monetary and nonmonetary benefits associated with the projects recommended under subsection (c); and
"(6) any recommendations to Congress on how the Secretary can address the flood risk management and hurricane and storm damage risk reduction needs of economically disadvantaged communities.
"(f)
"(g)
[For definition of "economically disadvantaged community" as used in section 118 of div. AA of
Non-Federal Project Implementation for Comprehensive Everglades Restoration Plan Projects
"(1)
"(2)
"(3)
Uniformity of Notification Systems
"(a)
"(b)
"(1)
"(2)
"(A) provide access to information in all forms practicable, including through email, text messages, news programs and websites, radio, and other forms of notification;
"(B) establish a notification system for any projects, initiatives, or facilities of the Corps of Engineers that do not have a notification system;
"(C) streamline existing communication and notification systems to improve the strength and uniformity of those systems; and
"(D) emphasize the necessity of timeliness in notification systems and ensure that the methods of notification can transmit information in a timely manner.
"(3)
"(A)
"(B)
"(4)
Continuing Authority Programs
"(a)
"(1)
"(2)
"(A) publish a notice in the Federal Register that requests non-Federal interest proposals for a project under a continuing authority program for an economically disadvantaged community; and
"(B) review such proposals and select a total of 20 projects, taking into consideration geographic diversity among the selected projects.
"(3)
"(4)
"(5)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(7)
"(8)
[For definition of "economically disadvantaged community" as used in section 165 of div. AA of
Reports to Congress
"(a)
"(b)
"(1) subparagraphs (A) and (B) of section 1043(a)(5) [
"(2) section 1046(a)(2)(B) [
"(3) section 210(e)(3) of the Water Resources Development Act of 1986 (
"(4) section 7001 [
"(c)
"(1)
"(2)
"(d)
"(1)
"(2)
"(e)
"(1) a major modification has been made to the content of the report that requires additional analysis for the Secretary to make a final decision on the report;
"(2) amounts have not been appropriated to the agency under this Act or any other Act to carry out the report; or
"(3) additional information is required from an entity other than the Corps of Engineers and is not available in a timely manner to complete the report by the deadline.
"(f)
Non-Federal Implementation Pilot Program
"(a)
"(1)
"(2)
"(A) to identify project delivery and cost-saving alternatives to the existing feasibility study process;
"(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out a feasibility study of 1 or more projects; and
"(C) to evaluate alternatives for the decentralization of the project planning, management, and operational decisionmaking process of the Corps of Engineers.
"(3)
"(A)
"(i) flood risk management;
"(ii) hurricane and storm damage reduction, including levees, floodwalls, flood control channels, and water control structures;
"(iii) coastal harbor and channel and inland navigation; and
"(iv) aquatic ecosystem restoration.
"(B)
"(i)
"(ii)
"(I) non-Federal funds were used to carry out the activities that would have been the responsibility of the Secretary;
"(II) the Secretary determines that the feasibility study complies with all applicable Federal laws and regulations; and
"(III) the project is authorized by any provision of Federal law enacted after the date on which an agreement is entered into under subparagraph (A).
"(C)
"(i)
"(I) if applicable, the balance of any unobligated amounts appropriated for the study, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
"(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of the feasibility study.
"(ii)
"(I) has the necessary qualifications to administer those funds; and
"(II) will comply with all applicable Federal laws (including regulations) relating to the use of those funds.
"(D)
"(E)
"(F)
"(G)
"(4)
"(5)
"(A)
"(i) a description of the progress of the non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (3)(G); and
"(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.
"(B)
"(C)
"(6)
"(7)
"(8)
"(b)
"(1)
"(2)
"(A) to identify project delivery and cost-saving alternatives that reduce the backlog of authorized Corps of Engineers projects;
"(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out the design, execution, management, and construction of 1 or more projects; and
"(C) to evaluate alternatives for the decentralization of the project management, design, and construction for authorized Corps of Engineers water resources projects.
"(3)
"(A)
"(i) identify a total of not more than 20 projects for flood risk management, hurricane and storm damage reduction (including levees, floodwalls, flood control channels, and water control structures), coastal harbor and channels, inland navigation, and aquatic ecosystem restoration that have been authorized for construction, including—
"(I) not more than 12 projects that have been authorized for construction prior to the date of enactment of this Act and that—
"(aa)(AA) have received Federal funds prior to the date of enactment of this Act; or
"(BB) for more than 2 consecutive fiscal years, have an unobligated funding balance for that project in the Corps of Engineers construction account; and
"(bb) to the maximum extent practicable, are located in each of the divisions of the Corps of Engineers;
"(II) not more than 3 projects that have been authorized for construction prior to the date of enactment of this Act and that have not received Federal funds in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act; and
"(III) not more than 5 projects that have been authorized for construction, but did not receive the authorization prior to the date of enactment of this Act;
"(ii) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the identification of each project under the pilot program;
"(iii) in collaboration with the non-Federal interest, develop a detailed project management plan for each identified project that outlines the scope, budget, design, and construction resource requirements necessary for the non-Federal interest to execute the project, or a separable element of the project;
"(iv) on the request of the non-Federal interest, enter into a project partnership agreement with the non-Federal interest for the non-Federal interest to provide full project management control for construction of the project, or a separable element of the project, in accordance with plans approved by the Secretary;
"(v) following execution of the project partnership agreement, transfer to the non-Federal interest to carry out construction of the project, or a separable element of the project—
"(I) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
"(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and
"(vi) regularly monitor and audit each project being constructed by a non-Federal interest under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.
"(B)
"(C)
"(i) any study, engineering activity, and design activity for construction carried out by the non-Federal interest under this subsection; and
"(ii) expeditiously obtaining any permits necessary for the project.
"(4)
"(5)
"(A)
"(i) a description of the progress of non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (2)(B); and
"(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.
"(B)
"(C)
"(6)
"(7)
"(8)
"(9)
"(A)
"(i) the metrics for measuring the success of the pilot program;
"(ii) a process for identifying future projects to participate in the pilot program;
"(iii) measures to address the risks of a non-Federal interest constructing projects under the pilot program, including which entity bears the risk for projects that fail to meet the Corps of Engineers standards for design or quality;
"(iv) the laws and regulations that a non-Federal interest must follow in carrying out a project under the pilot program; and
"(v) which entity bears the risk in the event that a project carried out under the pilot program fails to be carried out in accordance with the project authorization or this subsection.
"(B)
Water Infrastructure Public-Private Partnership Pilot Program
"(a)
"(b)
"(1) to identify cost-saving project delivery alternatives that reduce the backlog of authorized Corps of Engineers projects; and
"(2) to evaluate the technical, financial, and organizational benefits of allowing a non-Federal pilot applicant to carry out and manage the design or construction (or both) of 1 or more of such projects.
"(c)
"(d)
"(1) identify for inclusion in the program at least 15 projects that are authorized for construction for coastal harbor improvement, channel improvement, inland navigation, flood damage reduction, ecosystem restoration, or hurricane and storm damage reduction;
"(2) notify in writing the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of each project identified under paragraph (1);
"(3) in consultation with the non-Federal pilot applicant associated with each project identified under paragraph (1), develop a detailed project management plan for the project that outlines the scope, financing, budget, design, and construction resource requirements necessary for the non-Federal pilot applicant to execute the project, or a separable element of the project;
"(4) at the request of the non-Federal pilot applicant associated with each project identified under paragraph (1), enter into a project partnership agreement with the non-Federal pilot applicant under which the non-Federal pilot applicant is provided full project management control for the financing, design, or construction (or any combination thereof) of the project, or a separable element of the project, in accordance with plans approved by the Secretary;
"(5) following execution of a project partnership agreement under paragraph (4) and completion of all work under the agreement, issue payment, in accordance with subsection (g), to the relevant non-Federal pilot applicant for that work; and
"(6) regularly monitor and audit each project carried out under the program to ensure that all activities related to the project are carried out in compliance with plans approved by the Secretary and that construction costs are reasonable.
"(e)
"(1) is significant to the economy of the United States;
"(2) leverages Federal investment by encouraging non-Federal contributions to the project;
"(3) employs innovative project delivery and cost-saving methods;
"(4) received Federal funds in the past and experienced delays or missed scheduled deadlines;
"(5) has unobligated Corps of Engineers funding balances; and
"(6) has not received Federal funding for recapitalization and modernization since the project was authorized.
"(f)
"(g)
"(1) if applicable, the balance of the unobligated amounts appropriated for the project; and
"(2) other amounts appropriated to the Corps of Engineers, subject to the condition that the total amount transferred to the non-Federal pilot applicant may not exceed the estimate of the Federal share of the cost of construction, including any required design.
"(h)
"(1) a study, engineering activity, or design activity related to a project carried out by the non-Federal pilot applicant under the program; and
"(2) obtaining permits necessary for such a project.
"(i)
"(1)
"(A) except as provided in paragraph (2), identify any procedural requirements under the authority of the Secretary that impede greater use of public-private partnerships and private investment in water resources development projects;
"(B) develop and implement, on a project-by-project basis, procedures and approaches that—
"(i) address such impediments; and
"(ii) protect the public interest and any public investment in water resources development projects that involve public-private partnerships or private investment in water resources development projects; and
"(C) not later than 1 year after the date of enactment of this section [June 10, 2014], issue rules to carry out the procedures and approaches developed under subparagraph (B).
"(2)
"(A) sections 3141 through 3148 and
"(B) the National Environmental Policy Act of 1969 (
"(C) any other provision of Federal law.
"(j)
"(1)
"(2)
"(A) be completed in a period of not more than 90 days;
"(B) take into consideration any supporting materials and data submitted by the relevant non-Federal pilot applicant and other stakeholders; and
"(C) determine whether the proposed project partnership agreement is in the public interest by determining whether the agreement will provide public and financial benefits, including expedited project delivery and savings for taxpayers.
"(k)
"(l)
"(m)
"(n)
"(o)
"(1) the non-Federal sponsor of the water resources development project;
"(2) a non-Federal interest, as defined in section 221 of the Flood Control Act of 1970 (
"(3) a private entity with the consent of the local government in which the project is located or that is otherwise affected by the project."
Funding to Process Permits
Monitoring
"(a)
"(b)
"(c)
"(d)
"(1) for which a contract for physical construction has not been awarded before the date of enactment of this Act [Dec. 11, 2000];
"(2) that has a total cost of more than $25,000,000; and
"(3)(A) that has as a benefit-to-cost ratio of less than 1.5 to 1; or
"(B) that has significant environmental benefits or significant environmental mitigation components.
"(e)
Water Control Management
"(a)
"(b)
"(1) a description of the primary objectives of streamlining water control management activities;
"(2) a description of the benefits provided by streamlining water control management activities through consolidation of centers for those activities;
"(3) a determination whether the benefits to users of establishing regional water control management centers will be retained in each district office of the Corps of Engineers that does not have a regional center;
"(4) a determination whether users of regional centers will receive a higher level of benefits from streamlining water control management activities; and
"(5) a list of the members of Congress who represent a district that includes a water control management center that is to be eliminated under a proposed regionalized plan."
Buy American; Sense of Congress; Requirement Regarding Notice
"(a)
"(b)
"(a)
"(b)
Budget Act Requirements
Definition of Economically Disadvantaged Community
"(a)
"(b)
"(c)
"Secretary" Defined
Executive Documents
Promoting the Reliable Supply and Delivery of Water in the West
Memorandum of President of the United States, Oct. 19, 2018, 83 F.R. 53961, which related to water infrastructure throughout the western United States, was revoked by Ex. Ord. No. 13990, §7(d), Jan. 20, 2021, 86 F.R. 7042, set out in a note under
§2202. Non-Federal engagement and review
(a) Issuance
The Secretary shall expeditiously issue guidance to implement each covered provision of law in accordance with this section.
(b) Public notice
(1) In general
Prior to developing and issuing any new or revised implementation guidance for a covered water resources development law, the Secretary shall issue a public notice that—
(A) informs potentially interested non-Federal stakeholders of the Secretary's intent to develop and issue such guidance; and
(B) provides an opportunity for interested non-Federal stakeholders to engage with, and provide input and recommendations to, the Secretary on the development and issuance of such guidance.
(2) Issuance of notice
The Secretary shall issue the notice under paragraph (1) through a posting on a publicly accessible website dedicated to providing notice on the development and issuance of implementation guidance for a covered water resources development law.
(c) Stakeholder engagement
(1) Input
The Secretary shall allow a minimum of 60 days after issuance of the public notice under subsection (b) for non-Federal stakeholders to provide input and recommendations to the Secretary, prior to finalizing implementation guidance for a covered water resources development law.
(2) Outreach
The Secretary may, as appropriate (as determined by the Secretary), reach out to non-Federal stakeholders and circulate drafts of implementation guidance for a covered water resources development law for informal input and recommendations.
(d) Submission
The Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a copy of all input and recommendations received pursuant to subsection (c) and a description of any consideration of such input and recommendations.
(e) Development of guidance
When developing implementation guidance for a covered water resources development law, the Secretary shall take into consideration the input and recommendations received from non-Federal stakeholders, and make the final guidance available to the public on the publicly accessible website described in subsection (b)(2).
(f) Definitions
In this section:
(1) Covered provision of law
The term "covered provision of law" means a provision of law under the jurisdiction of the Secretary contained in, or amended by, a covered water resources development law, with respect to which—
(A) the Secretary determines guidance is necessary in order to implement the provision; and
(B) no such guidance has been issued as of October 23, 2018.
(2) Covered water resources development law
The term "covered water resources development law" means—
(A) the Water Resources Reform and Development Act of 2014;
(B) the Water Resources Development Act of 2016;
(C) this Act; and
(D) any Federal water resources development law enacted after October 23, 2018.
(
Editorial Notes
References in Text
The Water Resources Reform and Development Act of 2014, referred to in subsec. (f)(2)(A), is
The Water Resources Development Act of 2016, referred to in subsec. (f)(2)(B), is title I of
This Act, referred to in subsec. (f)(2)(C), probably means title I of
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Non-Federal Interest Advisory Committee
"(a)
"(b)
"(1)
"(A) be appointed by the Secretary; and
"(B) have the requisite experiential or technical knowledge needed to address issues related to water resources needs and challenges.
"(2)
"(A) 1 representative of each of the following:
"(i) A non-Federal interest for a project for navigation for an inland harbor.
"(ii) A non-Federal interest for a project for navigation for a harbor.
"(iii) A non-Federal interest for a project for flood risk management.
"(iv) A non-Federal interest for a project for coastal storm risk management.
"(v) A non-Federal interest for a project for aquatic ecosystem restoration.
"(B) 1 representative of each of the following:
"(i) A non-Federal stakeholder with respect to inland waterborne transportation.
"(ii) A non-Federal stakeholder with respect to water supply.
"(iii) A non-Federal stakeholder with respect to recreation.
"(iv) A non-Federal stakeholder with respect to hydropower.
"(v) A non-Federal stakeholder with respect to emergency preparedness, including coastal protection.
"(C) 1 representative of each of the following:
"(i) An organization with expertise in conservation.
"(ii) An organization with expertise in environmental policy.
"(iii) An organization with expertise in rural water resources.
"(c)
"(1)
"(A) efficiently and effectively delivering water resources development projects;
"(B) improving the capability and capacity of the workforce of the Corps of Engineers to deliver such projects and other assistance;
"(C) improving the capacity and effectiveness of Corps of Engineers consultation and liaison roles in communicating water resources needs and solutions, including regionally specific recommendations; and
"(D) strengthening partnerships with non-Federal interests to advance water resources solutions.
"(2)
"(3)
"(A) included in a report submitted to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives; and
"(B) made publicly available, including on a publicly available website.
"(d)
"(e)
"(1)
"(2)
"(3)
Implementation Guidance
"Secretary" Defined
Secretary means the Secretary of the Army, see section 102 of
§2203. Review of contracting policies
(a) Review of contractual agreements
(1) In general
Not later than 180 days after December 27, 2020, the Secretary shall complete a review of the policies, guidelines, and regulations of the Corps of Engineers for the development of contractual agreements between the Secretary and non-Federal interests and utilities associated with the construction of water resources development projects.
(2) Report
Not later than 90 days after completing the review under subsection (a)(1), the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate, and make publicly available, a report that includes—
(A) a summary of the results of the review; and
(B) public guidance on best practices for a non-Federal interest to use when writing or developing contractual agreements with the Secretary and utilities.
(3) Provision of guidance
The Secretary shall provide the best practices guidance included under paragraph (2)(A) to non-Federal interests prior to the development of contractual agreements with such non-Federal interests.
(b) Sense of Congress
It is the sense of Congress that the Secretary should maximize use of nonprice tradeoff procedures in competitive acquisitions for carrying out emergency work in an area with respect to which the President has declared a major disaster under
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
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
(3) Lands, easements, and rights-of-way
Except as provided under
(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
(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
(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.
(
Editorial Notes
References in Text
This Act, referred to in subsec. (b)(1), is
Amendments
2016—Subsec. (a)(1).
Subsec. (a)(1)(B).
Subsec. (a)(1)(C).
2014—Subsec. (b)(1).
1996—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(5).
Subsec. (b).
Subsec. (e)(1).
Subsec. (f).
1992—Subsec. (a)(3).
1988—Subsec. (a)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Deep Draft Harbor Cost Sharing
"(a)
"(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)
"(1)
"(2)
"(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
Increases in Non-Federal Share of Costs
"(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 (
Dredged Material Disposal Areas Study
§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
(e) Limitation on statutory construction
Nothing in this section may be construed to preclude the operation and maintenance of a federally authorized harbor under
(
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
§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
(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
(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
(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.
(
Editorial Notes
References in Text
Title III of this Act, referred to in subsecs. (a)(1) and (d)(1), is title III of
Section 844 of this Act, referred to in subsecs. (a)(3) and (d)(2), is section 844 of
Amendments
2022—Subsec. (a).
2014—Subsecs. (c), (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
Inland Waterway Projects
Acceptance of Contributed Funds To Increase Lock Operations
"(a)
"(b)
"(c)
"(1) publish the proposed modification in the Federal Register; and
"(2) accept public comment on the proposed modification.
"(d)
"(1)
"(2)
"(e)
"(f)
§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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(
Editorial Notes
References in Text
Section 202 of
This Act, referred to in subsecs. (f) and (h), is
The Flood Control Act of 1946, referred to in subsec. (g)(2)(A), is act July 24, 1946, ch. 596,
The Flood Control Act approved August 18, 1941, referred to in subsec. (g)(2)(C), is act Aug. 18, 1941, ch. 377,
Section 903(c), referred to in subsec. (n)(2), is section 903(c) of
Amendments
2022—Subsec. (k)(4).
Subsec. (l).
2020—Subsec. (b).
Subsec. (b)(1).
Subsec. (j)(1).
Subsec. (k).
2007—Subsec. (m)(2).
Subsec. (n).
2000—Subsec. (m)(1), (2).
Subsec. (m)(3)(B), (C).
1999—Subsec. (b).
Subsec. (b)(2).
Subsec. (d).
Subsec. (d)(2)(A).
1996—Subsecs. (a)(2), (b).
Subsec. (c)(7).
Subsec. (e)(1).
Subsec. (m).
1992—Subsec. (i).
Subsec. (m).
"(1)
"(2)
"(A)
"(B)
"(C)
1990—Subsec. (m).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
"(A)
"(B)
"(C)
[Reference to "project cooperation agreement" deemed to be reference to "project partnership agreement", see section 2003(f)(2) of
Continuation of Existing Regulations
Reports to Congress
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.
(
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).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§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
(g) Cash contribution not affected
Nothing in this section affects the requirement of
(
Editorial Notes
References in Text
This Act, referred to in subsecs. (b) and (c), is
§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
(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
(
Editorial Notes
References in Text
The Water Resources Development Act of 2000, referred to in subsec. (d)(2), is
Amendments
2007—Subsec. (a)(3).
Subsec. (b).
Subsec. (d).
2000—Subsec. (a)(1)(E).
1996—Subsec. (a)(1).
Subsec. (a)(2).
1990—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
No Requirement of Reimbursement
§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.
(
Editorial Notes
References in Text
This Act, referred to in text, is
§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.
(
Editorial Notes
References in Text
This Act, referred to in text, is
§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.
(
Editorial Notes
References in Text
This Act, referred to in text, is
§2219. Definitions
For purposes of this subchapter, terms shall have the meanings given by
(
§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 [
(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.
(
Editorial Notes
References in Text
The Public Works and Economic Development Act of 1965, referred to in subsec. (a), is
Codification
Section was formerly classified to
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
(
Editorial Notes
References in Text
The Civil Functions Appropriations Act, 1936,
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:
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
(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.
(
Editorial Notes
Amendments
2022—
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
§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
(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.
(
Editorial Notes
References in Text
Section 1018(a), referred to in subsec. (b)(1), means section 1018(a) of
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).
Subsec. (b)(3).
Subsec. (d).
Subsec. (e)(1)(B).
2016—Subsec. (a).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§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.
(
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
(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.
(
Editorial Notes
References in Text
Amendments
2018—
2016—Subsec. (a).
Subsec. (b).
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
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.
(
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
§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.
(
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
SUBCHAPTER II—HARBOR DEVELOPMENT
§2231. Study of water resources development projects by non-Federal interests
(a) Submission to Secretary
(1) In general
A non-Federal interest may undertake a federally authorized feasibility study of a proposed water resources development project, or, upon the written approval of the Secretary that the modifications are consistent with the authorized purposes of the project, undertake a feasibility study on modifications to a water resources development project constructed by the Corps of Engineers, and submit the study to the Secretary.
(2) Guidelines
To assist non-Federal interests, the Secretary, as soon as practicable, shall issue guidelines for the formulation of feasibility studies of water resources development projects undertaken by non-Federal interests to—
(A) ensure that any feasibility study with respect to which the Secretary submits an assessment to Congress under subsection (c) complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and
(B) provide sufficient information for the formulation of the studies, including processes and procedures related to reviews and assistance under subsection (e).
(b) Review by Secretary
(1) In general
The Secretary shall review each feasibility study received under subsection (a)(1) for the purpose of determining whether or not the study, and the process under which the study was developed, each comply with Federal laws and regulations applicable to feasibility studies of water resources development projects.
(2) Timing
The Secretary may not submit to Congress an assessment of a feasibility study under this section until such time as the Secretary—
(A) determines that the feasibility study complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and
(B) completes all of the Federal analyses, reviews, and compliance processes under the National Environmental Policy Act of 1969 (
(3) Initiation of review
(A) Request
(i) Submission
The non-Federal interest may submit to the Secretary a request that the Secretary initiate the analyses, reviews, and compliance processes described in paragraph (2)(B) with respect to the proposed project prior to the non-Federal interest's submission of a feasibility study under subsection (a)(1).
(ii) Effect
Receipt by the Secretary of a request submitted under clause (i) shall be considered the receipt of a proposal or application that will lead to a major Federal action that is subject to the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (
(B) Deadline
Not later than 10 days after the Secretary receives a request under this paragraph, the Secretary shall begin the required analyses, reviews, and compliance processes.
(4) Notification
Upon receipt of a request under paragraph (3), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate of the request and a timeline for completion of the required analyses, reviews, and compliance processes.
(5) Status updates
Not later than 30 days after receiving a request under paragraph (3), and every 30 days thereafter until the Secretary submits an assessment under subsection (c) for the applicable feasibility study, the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Environment and Public Works of the Senate, and the non-Federal interest of the status of the Secretary's required analyses, reviews, and compliance processes.
(c) Submission to Congress
(1) Review and submission of studies to Congress
Not later than 180 days after the completion of review of a feasibility study under subsection (b), 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 an assessment that describes—
(A) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
(B) any recommendations the Secretary may have concerning the plan or design of the project; and
(C) any conditions the Secretary may require for construction of the project.
(2) Limitation
The completion of the review by the Secretary of a feasibility study that has been submitted under subsection (a)(1) may not be delayed as a result of consideration being given to changes in policy or priority with respect to project consideration.
(d) Credit
If a project for which a feasibility study has been submitted under subsection (a)(1) is authorized by a Federal law enacted after the date of the submission to Congress under subsection (c), the Secretary shall credit toward the non-Federal share of the cost of construction of the project an amount equal to the portion of the cost of developing the study that would have been the responsibility of the United States if the study had been developed by the Secretary.
(e) Review and technical assistance
(1) Review
The Secretary may accept and expend funds provided by non-Federal interests to undertake reviews, inspections, certifications, and other activities that are the responsibility of the Secretary in carrying out this section.
(2) Technical assistance
At the request of a non-Federal interest, the Secretary shall provide to the non-Federal interest technical assistance relating to any aspect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assistance.
(3) Limitation
Funds provided by non-Federal interests under this subsection shall not be eligible for credit under subsection (d) or reimbursement.
(4) Impartial decisionmaking
In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, either substantively or procedurally.
(5) Savings provision
The provision of technical assistance by the Secretary under paragraph (2)—
(A) shall not be considered to be an approval or endorsement of the feasibility study; and
(B) shall not affect the responsibilities of the Secretary under subsections (b) and (c).
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (b)(2)(B), is
Amendments
2020—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (b).
Subsec. (c)(1).
2018—Subsec. (a)(1).
Subsec. (c).
"(1) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
"(2) any recommendations the Secretary may have concerning the plan or design of the project; and
"(3) any conditions the Secretary may require for construction of the project."
Subsec. (e).
2016—Subsec. (e).
2014—
Statutory Notes and Related Subsidiaries
Short Title
For short title of title II of
Deadline
Hold Harmless
"(1)
"(2) 2020
§2232. Construction of water resources development projects by non-Federal interests
(a) Water resources development project defined
In this section, the term "water resources development project" means a project recommendation that results from—
(1) a feasibility report, as such term is defined in section 2282d(f) 1 of this title;
(2) a completed feasibility study developed under
(3) a final feasibility study for water resources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Secretary.
(b) Authority
(1) In general
A non-Federal interest may carry out a federally authorized water resources development project, or separable element thereof—
(A) in accordance with a plan approved by the Secretary for the project or separable element; and
(B) subject to any conditions that the Secretary may require, including any conditions specified under
(2) Conditions
Before carrying out a water resources development project, or separable element thereof, under this section, a non-Federal interest shall—
(A) obtain any permit or approval required in connection with the project or separable element under Federal or State law, except as provided in paragraph (3); and
(B) ensure that a final environmental impact statement or environmental assessment, as appropriate, for the project or separable element has been filed.
(3) Permit exception
(A) In general
For a project described in subsection (a)(1) or subsection (a)(3), or a separable element thereof, with respect to which a written agreement described in subparagraph (B) has been entered into, a non-Federal interest that carries out a project under this section shall not be required to obtain any Federal permits or approvals that would not be required if the Secretary carried out the project or separable element unless significant new circumstances or information relevant to environmental concerns or compliance have arisen since development of the project recommendation.
(B) Written agreement
For purposes of this paragraph, a written agreement shall provide that the non-Federal interest shall comply with the same legal and technical requirements that would apply if the project or separable element were carried out by the Secretary, including all mitigation required to offset environmental impacts of the project or separable element as determined by the Secretary.
(C) Certifications
Notwithstanding subparagraph (A), if a non-Federal interest carrying out a project under this section would, in the absence of a written agreement entered into under this paragraph, be required to obtain a certification from a State under Federal law to carry out the project, such certification shall still be required if a written agreement is entered into with respect to the project under this paragraph.
(4) Data sharing
(A) In general
If a non-Federal interest for a water resources development project begins to carry out that water resources development project under this section, the non-Federal interest may request that the Secretary transfer to the non-Federal interest all relevant data and documentation under the control of the Secretary with respect to that water resources development project.
(B) Deadline
Except as provided in subparagraph (C), the Secretary shall transfer the data and documentation requested by a non-Federal interest under subparagraph (A) not later than the date that is 90 days after the date on which the non-Federal interest so requests such data and documentation.
(C) Limitation
Nothing in this paragraph obligates the Secretary to share any data or documentation that the Secretary considers to be proprietary information.
(c) Studies and engineering
(1) In general
When requested by an appropriate non-Federal interest, the Secretary shall undertake all necessary studies, engineering, and technical assistance on construction for any project to be undertaken under this section, and provide technical assistance in obtaining all necessary permits for the construction, if the non-Federal interest contracts with the Secretary to furnish the United States funds for the studies, engineering, or technical assistance on construction in the period during which the studies, engineering, or technical assistance on construction are being conducted.
(2) No waiver
Nothing in this section may be construed to waive any requirement of
(3) Limitation
Funds provided by non-Federal interests under this subsection shall not be eligible for credit or reimbursement under subsection (d).
(4) Impartial decisionmaking
In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, either substantively or procedurally.
(d) Credit or reimbursement
(1) General rule
Subject to paragraph (3), a project or separable element of a project carried out by a non-Federal interest under this section shall be eligible for credit or reimbursement for the Federal share of work carried out on a project or separable element of a project if—
(A) before initiation of construction of the project or separable element—
(i) the Secretary approves the plans for construction of the project or separable element of the project by the non-Federal interest;
(ii) the Secretary determines, before approval of the plans, that the project or separable element of the project is feasible; and
(iii) the non-Federal interest enters into a written agreement with the Secretary under
(B) the Secretary determines that all Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified under subsection (b)(1)(B), were complied with by the non-Federal interest during construction of the project or separable element of the project.
(2) Application of credit
The Secretary may apply credit toward—
(A) the non-Federal share of authorized separable elements of the same project; or
(B) subject to the requirements of this section and
(3) Requirements
The Secretary may only apply credit or provide reimbursement under paragraph (1) if—
(A) Congress has authorized construction of the project or separable element of the project;
(B) the Secretary certifies that the project has been constructed in accordance with—
(i) all applicable permits or approvals; and
(ii) this section; and
(C) in the case of reimbursement, appropriations are provided by Congress for such purpose.
(4) Monitoring
The Secretary shall regularly monitor and audit any water resources development project, or separable element of a water resources development project, constructed by a non-Federal interest under this section to ensure that—
(A) the construction is carried out in compliance with the requirements of this section; and
(B) the costs of the construction are reasonable.
(5) Discrete segments
(A) In general
The Secretary may authorize credit or reimbursement under this subsection for carrying out a discrete segment of a federally authorized water resources development project, or separable element thereof, before final completion of the project or separable element if—
(i) except as provided in clause (ii), the Secretary determines that the discrete segment satisfies the requirements of paragraphs (1) through (4) in the same manner as the project or separable element; and
(ii) notwithstanding paragraph (1)(A)(ii), the Secretary determines, before the approval of the plans under paragraph (1)(A)(i), that the discrete segment is technically feasible and environmentally acceptable.
(B) Determination
Credit or reimbursement may not be made available to a non-Federal interest pursuant to this paragraph until the Secretary determines that—
(i) the construction of the discrete segment for which credit or reimbursement is requested is complete; and
(ii) the construction is consistent with the authorization of the applicable water resources development project, or separable element thereof, and the plans approved under paragraph (1)(A)(i).
(C) Written agreement
(i) In general
As part of the written agreement required under paragraph (1)(A)(iii), a non-Federal interest to be eligible for credit or reimbursement under this paragraph shall—
(I) identify any discrete segment that the non-Federal interest may carry out; and
(II) agree to the completion of the water resources development project, or separable element thereof, with respect to which the discrete segment is a part and establish a timeframe for such completion.
(ii) Remittance
If a non-Federal interest fails to complete a water resources development project, or separable element thereof, that it agreed to complete under clause (i)(II), the non-Federal interest shall remit any reimbursements received under this paragraph for a discrete segment of such project or separable element.
(D) Discrete segment defined
In this paragraph, the term "discrete segment" means a physical portion of a water resources development project to be carried out, or separable element thereof—
(i) described by a non-Federal interest in a written agreement required under paragraph (1)(A)(iii); and
(ii) that the non-Federal interest can operate and maintain, independently and without creating a hazard, in advance of final completion of the water resources development project, or separable element thereof.
(e) Notification of committees
If a non-Federal interest notifies the Secretary that the non-Federal interest intends to carry out a project, or separable element thereof, under this section, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives concerning the intent of the non-Federal interest.
(f) Operation and maintenance
(1) Assumption of maintenance
Whenever a non-Federal interest carries out improvements to a federally authorized harbor or inland harbor, the Secretary shall be responsible for operation and maintenance in accordance with
(A) before construction of the improvements—
(i) the Secretary determines that the improvements are feasible and consistent with the purposes of this subchapter; and
(ii) the Secretary and the non-Federal interest execute a written agreement relating to operation and maintenance of the improvements;
(B) the Secretary certifies that the project or separable element of the project is constructed in accordance with applicable permits and appropriate engineering and design standards; and
(C) the Secretary does not find that the project or separable element is no longer feasible.
(2) Federal financial participation in the costs of a locally preferred plan.
In the case of improvements determined by the Secretary pursuant to paragraph (1)(A)(i) to deviate from the national economic development plan, the Secretary shall be responsible for all operation and maintenance costs of such improvements, as described in
(
Editorial Notes
References in Text
Amendments
2020—Subsec. (c)(1).
Subsec. (f).
2018—Subsec. (b)(1).
Subsec. (b)(2)(A).
Subsec. (b)(3), (4).
Subsec. (c).
Subsec. (d)(3)(C).
Subsec. (d)(5).
Subsec. (d)(5)(A).
Subsec. (d)(5)(D).
2016—Subsec. (d)(5).
2014—
1990—Subsec. (c).
Subsec. (e).
Subsec. (e)(1).
Subsec. (f).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Savings Provision
"(1) Section 204 of the Water Resources Development Act of 1986 (
"(2) Section 206 of the Water Resources Development Act of 1992 (
"(3) Section 211 of the Water Resources Development Act of 1996 (
Report on Improvements by Non–Federal Interest
"(1) the economic justification for the improvements;
"(2) details of the project improvement plan and design;
"(3) proposed arrangements for the work to be performed; and
"(4) documents relating to any applicable permits required for the project improvements."
Project Studies Subject to Independent Peer Review
Preconstruction Engineering Design Demonstration Program
"(a)
"(b)
"(c)
"(1) the project shall conform to the feasibility study and the environmental impact statement approved by the Secretary; and
"(2) the Secretary and the non-Federal sponsor shall jointly agree to the construction design of the project.
"(d)
"(e)
"(f)
"(1) section 906 of the Water Resources Development Act of 1986 (
"(2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (
Navigation Safety
Operation and Maintenance of Certain Projects
Demonstration of Construction of Federal Project by Non-Federal Interests
1 See References in Text note below.
§2233. Coordination and scheduling of Federal, State, and local actions
(a) Notice of intent
The Secretary, on request from an appropriate non-Federal interest in the form of a written notice of intent to construct a navigation project for a harbor or inland harbor under
(b) Procedural requirements
Within 15 days after receipt of notice under subsection (a), the Secretary shall publish such notice in the Federal Register. The Secretary also shall provide written notification of the receipt of a notice under subsection (a) to all State and local agencies that may be required to issue permits for the construction of the project or related activities. The Secretary shall solicit the cooperation of those agencies and request their entry into a memorandum of agreement described in subsection (c). Within 30 days after publication of the notice in the Federal Register, State and local agencies that intend to enter into the memorandum of agreement shall notify the Secretary of their intent in writing.
(c) Scheduling agreement
Within 90 days after receipt of notice under subsection (a), the Secretary of the Interior, the Secretary of Commerce, the Administrator of the Environmental Protection Agency, and any State or local agencies that have notified the Secretary under subsection (b) shall enter into an agreement with the Secretary establishing a schedule of decisionmaking for approval of the project and permits associated with it and with related activities. Such schedule may not exceed two and one-half years from the date of the agreement.
(d) Contents of agreement
The agreement entered into under subsection (c), to the extent practicable, shall consolidate hearing and comment periods, procedures for data collection and report preparation, and the environmental review and permitting processes associated with the project and related activities. The agreement shall detail, to the extent possible, the non-Federal interest's responsibilities for data development and information that may be necessary to process each permit, including a schedule when the information and data will be provided to the appropriate Federal, State, or local agency.
(e) Preliminary decision
The agreement shall include a date by which the Secretary, taking into consideration the views of all affected Federal agencies, shall provide to the non-Federal interest in writing a preliminary determination whether the project and Federal permits associated with it are reasonably likely to receive approval.
(f) Revision of agreement
The Secretary may revise the agreement once to extend the schedule to allow the non-Federal interest the minimum amount of additional time necessary to revise its original application to meet the objections of a Federal, State, or local agency which is a party to the agreement.
(g) Progress reports
Six months before the final date of the schedule, the Secretary shall provide to Congress a written progress report for each navigation project for a harbor or inland harbor subject to this section. The Secretary shall transmit the report to the Committee on Public Works and Transportation of the House of Representatives and the Committee on Environment and Public Works of the Senate. The report shall summarize all work completed under the agreement and shall include a detailed work program that will assure completion of all remaining work under the agreement.
(h) Final decision
Not later than the final day of the schedule, the Secretary shall notify the non-Federal interest of the final decision on the project and whether the permit or permits have been issued.
(i) Report on timesavings methods
Not later than one year after November 17, 1986, the Secretary shall prepare and transmit to Congress a report estimating the time required for the issuance of all Federal, State, and local permits for the construction of navigation projects for harbors or inland harbors and associated activities. The Secretary shall include in that report recommendations for further reducing the amount of time required for the issuance of those permits, including any proposed changes in existing law.
(
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2234. Nonapplicability to Saint Lawrence Seaway
(
Editorial Notes
Amendments
2020—
§2235. Construction in usable increments
Any navigation project for a harbor or inland harbor authorized by this subchapter or any other provision of law enacted before, on, or after November 17, 1986, may be constructed in usable increments.
(
§2236. Port or harbor dues
(a) Consent of Congress
Subject to the following conditions, a non-Federal interest may levy port or harbor dues (in the form of tonnage duties or fees) on a vessel engaged in trade entering or departing from a harbor and on cargo loaded on or unloaded from that vessel under clauses 2 and 3 of section 10, and under clause 3 of section 8, of Article 1 of the Constitution:
(1) Purposes
Port or harbor dues may be levied only in conjunction with a harbor navigation project whose construction is complete (including a usable increment of the project) and for the following purposes and in amounts not to exceed those necessary to carry out those purposes:
(A)(i) to finance the non-Federal share of construction and operation and maintenance costs of a navigation project for a harbor under the requirements of
(ii) to finance the cost of construction and operation and maintenance of a navigation project for a harbor under
(B) provide emergency response services in the harbor, including contingency planning, necessary personnel training, and the procurement of equipment and facilities.
(2) Limitation on port or harbor dues for emergency service
Port or harbor dues may not be levied for the purposes described in paragraph (1)(B) of this subsection after the dues cease to be levied for the purposes described in paragraph (1)(A) of this subsection.
(3) General limitations
(A) Port or harbor dues may not be levied under this section in conjunction with a deepening feature of a navigation improvement project on any vessel if that vessel, based on its design draft, could have utilized the project at mean low water before construction. In the case of project features which solely—
(i) widen channels or harbors,
(ii) create or enlarge bend easings, turning basins or anchorage areas, or provide protected areas, or
(iii) remove obstructions to navigation,
only vessels at least comparable in size to those used to justify these features may be charged under this section.
(B) In developing port or harbor dues that may be charged under this section on vessels for project features constructed under this subchapter, the non-Federal interest may consider such criteria as: elapsed time of passage, safety of passage, vessel economy of scale, under keel clearance, vessel draft, vessel squat, vessel speed, sinkage, and trim.
(C) Port or harbor dues authorized by this section shall not be imposed on—
(i) vessels owned and operated by the United States Government, a foreign country, a State, or a political subdivision of a country or State, unless engaged in commercial services;
(ii) towing vessels, vessels engaged in dredging activities, or vessels engaged in intraport movements; or
(iii) vessels with design drafts of 20 feet or less when utilizing general cargo and deep-draft navigation projects.
(4) Formulation of port or harbor dues
Port or harbor dues may be levied only on a vessel entering or departing from a harbor and its cargo on a fair and equitable basis. In formulating port and harbor dues, the non-Federal interest shall consider—
(A) the direct and indirect cost of construction, operations, and maintenance, and providing the facilities and services under paragraph (1) of this subsection;
(B) the value of those facilities and services to the vessel and cargo;
(C) the public policy or interest served; and
(D) any other pertinent factors.
(5) Notice and hearing
(A) Before the initial levy of or subsequent modification to port or harbor dues under this section, a non-Federal interest shall transmit to the Secretary—
(i) the text of the proposed law, regulation, or ordinance that would establish the port or harbor dues, including provisions for their administration, collection, and enforcement;
(ii) the name, address, and telephone number of an official to whom comments on and requests for further information on the proposal are to be directed;
(iii) the date by which comments on the proposal are due and a date for a public hearing on the proposal at which any interested party may present a statement; however, the non-Federal interest may not set a hearing date earlier than 45 days after the date of publication of the notice in the Federal Register required by subparagraph (B) of this paragraph or set a deadline for receipt of comments earlier than 60 days after the date of publication; and
(iv) a written statement signed by an appropriate official that the non-Federal interest agrees to be governed by the provisions of this section.
(B) On receiving from a non-Federal interest the information required by subparagraph (A) of this paragraph, the Secretary shall transmit the material required by clauses (i) through (iii) of subparagraph (A) of this paragraph to the Federal Register for publication.
(C) Port or harbor dues may be imposed by a non-Federal interest only after meeting the conditions of this paragraph.
(6) Requirements on non-Federal interest
A non-Federal interest shall—
(A) file a schedule of any port or harbor dues levied under this subsection with the Secretary and the Federal Maritime Commission, which the Commission shall make available for public inspection;
(B) provide to the Comptroller General of the United States on request of the Comptroller General any records or other evidence that the Comptroller General considers to be necessary and appropriate to enable the Comptroller General to carry out the audit required under subsection (b) 1 of this section;
(C) designate an officer or authorized representative, including the Secretary of the Treasury acting on a cost-reimbursable basis, to receive tonnage certificates and cargo manifests from vessels which may be subject to the levy of port or harbor dues, export declarations from shippers, consignors, and terminal operators, and such other documents as the non-Federal interest may by law, regulation, or ordinance require for the imposition, computation, and collection of port or harbor dues; and
(D) consent expressly to the exclusive exercise of Federal jurisdiction under subsection (c) 1 of this section.
(b) Jurisdiction
(1) The district court of the United States for the district in which is located a non-Federal interest that levies port or harbor dues under this section has original and exclusive jurisdiction over any matter arising out of or concerning, the imposition, computation, collection, and enforcement of port or harbor dues by a non-Federal interest under this section.
(2) Any person who suffers legal wrong or is adversely affected or aggrieved by the imposition by a non-Federal interest of a proposed scheme or schedule of port or harbor dues under this section may, not later than 180 days after the date of hearing under subsection (a)(5)(A)(iii) of this section, commence an action to seek judicial review of that proposed scheme or schedule in the appropriate district court under paragraph (1).
(3) On petition of the Attorney General or any other party, that district court may—
(A) grant appropriate injunctive relief to restrain an action by that non-Federal interest violating the conditions of consent in subsection (a) of this section;
(B) order the refund of any port or harbor dues not lawfully collected; and
(C) grant other appropriate relief or remedy.
(c) Collection of duties
(1) 2 Delivery of certificate and manifest
(A) Upon arrival of vessel
Upon the arrival of a vessel in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section, the master of that vessel shall, within forty-eight hours after arrival and before any cargo is unloaded from that vessel, deliver to the appropriate authorized representative appointed under subsection (a)(6)(C) of this section a tonnage certificate for the vessel and a manifest of the cargo aboard that vessel or, if the vessel is in ballast, a declaration to that effect.
(B) Before departure of vessel
The shipper, consignor, or terminal operator having custody of any cargo to be loaded on board a vessel while the vessel is in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section shall, within forty-eight hours before departure of that vessel, deliver to the appropriate authorized representative appointed under subsection (a)(6)(C) of this section an export declaration specifying the cargo to be loaded on board that vessel.
(d) Enforcement
At the request of an authorized representative referred to in subsection (a)(6)(C) of this section, the Secretary of the Treasury may:
(1) withhold the clearance required by
(2) assess a penalty or initiate a forfeiture of the cargo in the same manner and under the same procedures as are applicable for failure to pay customs duties under the Tariff Act of 1930 (
(e) Maritime Lien
Port or harbor dues levied under this section against a vessel constitute a maritime lien against the vessel and port or harbor dues levied against cargo constitute a lien against the cargo that may be recovered in an action in the district court of the United States for the district in which the vessel or cargo is found.
(
Editorial Notes
References in Text
Subsection (b) of this section, referred to in subsec. (a)(6)(B), which related to audits, was struck out by
Subsection (c) of this section, referred to in subsec. (a)(6)(D), which related to jurisdiction, was redesignated as subsec. (b) by
The Tariff Act of 1930, referred to in subsec. (d)(2), is act June 17, 1930, ch. 497,
Codification
In subsec. (d)(1), "
Amendments
1995—Subsecs. (b) to (f).
"(1) carry out periodic audits of the operations of non-Federal interests that elect to levy port or harbor dues under this section to determine if the conditions of subsection (a) of this section are being complied with;
"(2) submit to each House of the Congress a written report containing the findings resulting from each audit; and
"(3) make any recommendations that the Comptroller General considers appropriate regarding the compliance of those non-Federal interests with the requirements of this section."
1 See References in Text note below.
2 So in original. No par. (2) has been enacted.
§2237. Information for national security
Any non-Federal interest shall provide the United States the information necessary for military readiness planning and harbor, inland harbor, and national security, including information necessary to obtain national security clearances for individuals employed in critical harbor and inland harbor positions.
(
§2238. Authorization of appropriations
(a) Trust fund
There are authorized to be appropriated out of the Harbor Maintenance Trust Fund, established by
(1) 100 percent of the eligible operations and maintenance costs of those portions of the Saint Lawrence Seaway operated and maintained by the Great Lakes St. Lawrence Seaway Development Corporation for such fiscal year; and
(2) up to 100 percent of the eligible operations and maintenance costs assigned to commercial navigation of all harbors and inland harbors within the United States.
(b) General fund
There are authorized to be appropriated out of the general fund of the Treasury of the United States for each fiscal year such sums as may be necessary to pay the balance of all eligible operations and maintenance costs not provided by payments from the Harbor Maintenance Trust Fund under this section.
(c) Operation and maintenance of harbor projects
(1) In general
To the maximum extent practicable, the Secretary shall make expenditures to pay for operation and maintenance costs of the harbors and inland harbors referred to in subsection (a)(2), including expenditures of funds appropriated from the Harbor Maintenance Trust Fund, based on an equitable allocation of funds among all such harbors and inland harbors.
(2) Criteria
(A) In general
In determining an equitable allocation of funds under paragraph (1), the Secretary shall—
(i) consider the information obtained in the assessment conducted under subsection (e);
(ii) consider the national and regional significance of harbor operations and maintenance; and
(iii) as appropriate, consider national security and military readiness needs.
(B) Limitation
The Secretary shall not allocate funds under paragraph (1) based solely on the tonnage transiting through a harbor.
(3) Emerging harbor projects
(A) Allocation
Notwithstanding any other provision of this subsection, in making expenditures under paragraph (1) for each fiscal year, the Secretary shall allocate for operation and maintenance costs of emerging harbor projects an amount that is not less than 10 percent of the funds made available under this section for fiscal year 2012 to pay the costs described in subsection (a)(2).
(B) Additional uses at emerging harbors
(i) Uses
In each fiscal year, the Secretary may use not more than $5,000,000 of funds allocated for emerging harbor projects under paragraph (1) to pay for the costs of up to 10 projects for maintenance dredging of a marina or berthing area, in an emerging harbor, that includes an area that is located adjacent to, or is accessible by, a Federal navigation project, subject to clauses (ii) and (iii) of this subparagraph.
(ii) Eligible emerging harbors
The Secretary may use funds as authorized under clause (i) at an emerging harbor that—
(I) supports commercial activities, including commercial fishing operations, commercial fish processing operations, recreational and sport fishing, and commercial boat yards; or
(II) supports activities of the Secretary of the department in which the Coast Guard is operating.
(iii) Cost-sharing requirements
The Secretary shall require a non-Federal interest to contribute not less than 25 percent of the costs for maintenance dredging of that portion of a maintenance dredging project described in clause (i) that is located outside of the Federal navigation project, which may be provided as an in-kind contribution, including through the use of dredge equipment owned by non-Federal interest to carry out such activities.
(4) Management of Great Lakes Navigation System
To sustain effective and efficient operation and maintenance of the Great Lakes Navigation System, including any navigation feature in the Great Lakes that is a Federal responsibility with respect to operation and maintenance, the Secretary shall manage all of the individually authorized projects in the Great Lakes Navigation System as components of a single, comprehensive system, recognizing the interdependence of the projects.
(d) Prioritization
(1) Priority
(A) In general
For each fiscal year, if priority funds are available, the Secretary shall use at least 10 percent of such funds for emerging harbor projects.
(B) Additional considerations
For each fiscal year, of the priority funds available, the Secretary shall use—
(i) not less than 5 percent of such funds for underserved harbor projects; and
(ii) not less than 10 percent of such funds for projects that are located within the Great Lakes Navigation System.
(C) Underserved harbors
In determining which underserved harbor projects shall receive funds under this paragraph, the Secretary shall consider—
(i) the total quantity of commerce supported by the water body on which the project is located; and
(ii) the minimum width and depth that—
(I) would be necessary at the underserved harbor project to provide sufficient clearance for fully loaded commercial vessels using the underserved harbor project to maneuver safely; and
(II) does not exceed the constructed width and depth of the authorized navigation project.
(2) Expanded uses
(A) Definition of eligible harbor or inland harbor defined
In this paragraph, the term "eligible harbor or inland harbor" means a harbor or inland harbor at which the total amount of harbor maintenance taxes collected in the immediately preceding 3 fiscal years exceeds the value of the work carried out for the harbor or inland harbor using amounts from the Harbor Maintenance Trust Fund during those 3 fiscal years.
(B) Use of expanded uses funds
(i) Fiscal years 2015 through 2024
For each of fiscal years 2015 through 2024, of the priority funds available, the Secretary shall use not less than 10 percent of such funds for expanded uses carried out at an eligible harbor or inland harbor.
(ii) Subsequent fiscal years
For fiscal year 2025 and each fiscal year thereafter, the Secretary shall use not less than 10 percent of the priority funds available for expanded uses carried out at an eligible harbor or inland harbor.
(C) Prioritization
In allocating funds under this paragraph, the Secretary shall give priority to projects at eligible harbors or inland harbors for which the difference, calculated in dollars, is greatest between—
(i) the total amount of funding made available for projects at that eligible harbor or inland harbor from the Harbor Maintenance Trust Fund in the immediately preceding 3 fiscal years; and
(ii) the total amount of harbor maintenance taxes collected at that harbor or inland harbor in the immediately preceding 3 fiscal years.
(3) Remaining funds
(A) In general
For each of fiscal years 2015 through 2024, if after fully funding all projects eligible for funding under paragraphs (1)(B) and (2)(B)(i), priority funds made available under those paragraphs remain unobligated, the Secretary shall use those remaining funds to pay for operation and maintenance costs of any harbor or inland harbor referred to in subsection (a)(2) based on an equitable allocation of those funds among the harbors and inland harbors.
(B) Criteria
In determining an equitable allocation of funds under subparagraph (A), the Secretary shall—
(i) use the criteria specified in subsection (c)(2)(A); and
(ii) make amounts available in accordance with the requirements of paragraph (1)(A).
(4) Emergency expenditures
Nothing in this subsection prohibits the Secretary from making an expenditure to pay for the operation and maintenance costs of a specific harbor or inland harbor, including the transfer of funding from the operation and maintenance of a separate project, if—
(A) the Secretary determines that the action is necessary to address the navigation needs of a harbor or inland harbor where safe navigation has been severely restricted due to an unforeseen event; and
(B) the Secretary provides within 90 days of the action notice and information on the need for the action to the Committee on Environment and Public Works and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives.
(e) Assessment of harbors and inland harbors
(1) In general
Not later than 270 days after June 10, 2014, and biennially thereafter, the Secretary shall assess, and issue a report to Congress on, the operation and maintenance needs and uses of the harbors and inland harbors referred to in subsection (a)(2).
(2) Assessment of harbor needs and activities
(A) Total operation and maintenance needs of harbors
In carrying out paragraph (1), the Secretary shall identify—
(i) the total future costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors referred to in subsection (a)(2); and
(ii) the total expected costs for uses described in subsection (c)(3)(B) and expanded uses at eligible harbors or inland harbors referred to in subsection (d)(2).
(B) Uses of harbors and inland harbors
In carrying out paragraph (1), the Secretary shall identify current uses (and, to the extent practicable, assess the national, regional, and local benefits of such uses) of harbors and inland harbors referred to in subsection (a)(2), including the use of those harbors for—
(i) commercial navigation, including the movement of goods;
(ii) domestic trade;
(iii) international trade;
(iv) commercial fishing;
(v) subsistence, including use by Indian tribes (as defined in
(vi) use as a harbor of refuge;
(vii) transportation of persons;
(viii) purposes relating to domestic energy production, including the fabrication, servicing, or supply of domestic offshore energy production facilities;
(ix) activities of the Secretary of the department in which the Coast Guard is operating;
(x) activities of the Secretary of the Navy;
(xi) public health and safety related equipment for responding to coastal and inland emergencies;
(xii) recreation purposes; and
(xiii) other authorized purposes.
(C) Opportunities for beneficial use of dredged materials
In carrying out paragraph (1), the Secretary shall identify potential opportunities for the beneficial use of dredged materials obtained from harbors and inland harbors referred to in subsection (a)(2), including projects eligible under section 1122 of the Water Resources Development Act of 2016 (
(3) Report to Congress
(A) In general
For fiscal year 2016, and biennially thereafter, in conjunction with the President's annual budget submission to Congress under
(i) identifies the operation and maintenance costs associated with the harbors and inland harbors, including those costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors and the costs for expanded uses at eligible harbors and inland harbors, on a project-by-project basis;
(ii) identifies the amount of funding requested in the President's budget for the operation and maintenance costs associated with the harbors and inland harbors, on a project-by-project basis;
(iii) identifies the unmet operation and maintenance needs associated with the harbors and inland harbors, on a project-by-project basis; and
(iv) identifies the harbors and inland harbors for which the President will allocate funding over the subsequent 5 fiscal years for operation and maintenance activities, on a project-by-project basis, including the amounts to be allocated for such purposes.
(B) Additional requirement
In the first report submitted under subparagraph (A) following December 16, 2016, the Secretary shall identify, to the maximum extent practicable, transportation cost savings realized by achieving and maintaining the constructed width and depth for the harbors and inland harbors referred to in subsection (a)(2), on a project-by-project basis.
(C) Public availability
The Secretary shall make the report submitted under subparagraph (A) available to the public, including on the Internet.
(f) Definitions
In this section:
(1) Constructed width and depth
The term "constructed width and depth" means the width and depth to which a project has been constructed, which may not exceed the authorized width and depth of the project.
(2) Emerging harbor
The term "emerging harbor" means a harbor or inland harbor referred to in subsection (a)(2) that transits less than 1,000,000 tons of cargo annually.
(3) Emerging harbor project
The term "emerging harbor project" means a project that is assigned to an emerging harbor.
(4) Expanded uses
The term "expanded uses" means the following activities:
(A) The maintenance dredging of a berth in a harbor that is accessible to a Federal navigation project and that benefits commercial navigation at the harbor.
(B) The maintenance dredging and disposal of legacy-contaminated sediment, and sediment unsuitable for open water disposal, if—
(i) such dredging and disposal benefits commercial navigation at the harbor; and
(ii) such sediment is located in and affects the maintenance of a Federal navigation project or is located in a berth that is accessible to a Federal navigation project.
(C) An in-water improvement, if the improvement—
(i) is for the seismic reinforcement of a wharf or other berthing structure, or the repair or replacement of a deteriorating wharf or other berthing structure, at a port facility;
(ii) benefits commercial navigation at the harbor; and
(iii) is located in, or adjacent to, a berth that is accessible to a Federal navigation project.
(D) An activity to maintain slope stability at a berth in a harbor that is accessible to a Federal navigation project if such activity benefits commercial navigation at the harbor.
(5) Great Lakes Navigation System
The term "Great Lakes Navigation System" includes—
(A)(i) Lake Superior;
(ii) Lake Huron;
(iii) Lake Michigan;
(iv) Lake Erie; and
(v) Lake Ontario;
(B) all connecting waters between the lakes referred to in subparagraph (A) used for commercial navigation;
(C) any navigation features in the lakes referred to in subparagraph (A) or waters described in subparagraph (B) that are a Federal operation or maintenance responsibility; and
(D) areas of the Saint Lawrence River that are operated or maintained by the Federal Government for commercial navigation.
(6) Harbor maintenance tax
The term "harbor maintenance tax" means the amounts collected under
(7) Moderate-use harbor project
The term "moderate-use harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2) that transits annually—
(A) more than 1,000,000 tons of cargo; but
(B) less than 10,000,000 tons of cargo.
(8) Priority funds
The term "priority funds" means the difference between—
(A) the total funds that are made available under this section to pay the costs described in subsection (a)(2) for a fiscal year; and
(B) the total funds made available under this section to pay the costs described in subsection (a)(2) in fiscal year 2012.
(9) Underserved harbor project
(A) In general
The term "underserved harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2)—
(i) that is a moderate-use harbor project or an emerging harbor project;
(ii) that has been maintained at less than the constructed width and depth of the project during each of the preceding 6 fiscal years; and
(iii) for which State and local investments in infrastructure have been made at those projects during the preceding 6 fiscal years.
(B) Administration
For purposes of this paragraph, State and local investments in infrastructure shall include infrastructure investments made using amounts made available for activities under
(
Editorial Notes
References in Text
Section 1122 of the Water Resources Development Act of 2016, referred to in subsec. (e)(2)(C), is section 1122 of
Amendments
2020—Subsec. (a)(1).
Subsec. (c)(3).
Subsec. (e)(2)(A)(ii).
Subsec. (f)(2), (3).
Subsec. (f)(4).
Subsec. (f)(4)(C), (D).
Subsec. (f)(5).
Subsec. (f)(6).
2018—Subsec. (e)(1).
Subsec. (e)(2)(C).
2016—Subsec. (c)(3).
Subsec. (d)(1)(A).
"(i) 90 percent of the priority funds shall be used for high- and moderate-use harbor projects.
"(ii) 10 percent of the priority funds shall be used for emerging harbor projects."
Subsec. (d)(1)(B).
Subsec. (e)(3)(B), (C).
2014—Subsecs. (c) to (f).
1990—Subsec. (a)(2).
Statutory Notes and Related Subsidiaries
Criteria for Funding Operation and Maintenance of Small, Remote, and Subsistence Harbors
"(a)
"(1) The contribution of a harbor to the local and regional economy.
"(2) The extent to which a harbor has deteriorated since the last cycle of maintenance dredging.
"(3) Public safety concerns.
"(b)
"(c)
"(d)
"(1)
"(2)
Authorization of Appropriations for Navigation
"(1)
"(A) not less than 15 percent of such funds for emerging harbor projects, including eligible breakwater and jetty needs at such harbor projects;
"(B) not less than 13 percent of such funds for projects that are located within the Great Lakes Navigation System;
"(C) 12 percent of such funds for expanded uses carried out at donor ports and energy transfer ports, of which—
"(i) 1/3 shall be provided to energy transfer ports; and
"(ii) 2/3 shall be provided to donor ports;
"(D) not less than 17 percent of such funds for projects that are assigned to commercial strategic seaports; and
"(E) any remaining funds for operation and maintenance costs of any harbor or inland harbor referred to in such subsection (a)(2) [
"(2)
"(A)
"(B)
"(C)
"(3)
Guidance
§2238a. Estimate of harbor maintenance needs
For fiscal year 2014 and each fiscal year thereafter, the President's budget request submitted pursuant to
(1) an estimate of the nationwide average availability, expressed as a percentage, of the authorized depth and authorized width of all navigation channels authorized to be maintained using appropriations from the Harbor Maintenance Trust Fund that would result from harbor maintenance activities to be funded by the budget request; and
(2) an estimate of the average annual amount of appropriations from the Harbor Maintenance Trust Fund that would be required to increase that average availability to 95 percent over a 3-year period.
(
Editorial Notes
Codification
Section was enacted as part of the Moving Ahead for Progress in the 21st Century Act, also known as the MAP–21, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective Oct. 1, 2012, see section 3(a) of
§2238b. Funding for harbor maintenance programs
(a) Definitions
In this section:
(1) Total amount of harbor maintenance taxes received
The term "total amount of harbor maintenance taxes received" means, with respect to a fiscal year, the aggregate of amounts appropriated, transferred, or credited to the Harbor Maintenance Trust Fund under
(2) Total budget resources
The term "total budget resources" means the total amount made available by appropriations Acts from the Harbor Maintenance Trust Fund for a fiscal year for making expenditures under
(b) Target appropriations
(1) In general
Except as provided in subsection (c), the target total budget resources made available to the Secretary from the Harbor Maintenance Trust Fund for a fiscal year shall be not less than the following:
(A) For fiscal year 2015, 67 percent of the total amount of harbor maintenance taxes received in fiscal year 2014.
(B) For fiscal year 2016, 69 percent of the total amount of harbor maintenance taxes received in fiscal year 2015.
(C) For fiscal year 2017, 71 percent of the total amount of harbor maintenance taxes received in fiscal year 2016.
(D) For fiscal year 2018, 74 percent of the total amount of harbor maintenance taxes received in fiscal year 2017.
(E) For fiscal year 2019, 77 percent of the total amount of harbor maintenance taxes received in fiscal year 2018.
(F) For fiscal year 2020, 80 percent of the total amount of harbor maintenance taxes received in fiscal year 2019.
(G) For fiscal year 2021, 83 percent of the total amount of harbor maintenance taxes received in fiscal year 2020.
(H) For fiscal year 2022, 87 percent of the total amount of harbor maintenance taxes received in fiscal year 2021.
(I) For fiscal year 2023, 91 percent of the total amount of harbor maintenance taxes received in fiscal year 2022.
(J) For fiscal year 2024, 95 percent of the total amount of harbor maintenance taxes received in fiscal year 2023.
(K) For fiscal year 2025, and each fiscal year thereafter, 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(2) Use of amounts
The total budget resources described in paragraph (1) may be used only for making expenditures under
(c) Exception
If the target total budget resources for a fiscal year described in subparagraphs (A) through (J) of subsection (b)(1) is lower than the target total budget resources for the previous fiscal year, the target total budget resources shall be adjusted to be equal to the lesser of—
(1) 103 percent of the total budget resources appropriated for the previous fiscal year; or
(2) 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(d) Impact on other funds
(1) Sense of Congress
It is the sense of Congress that any increase in funding for harbor maintenance programs under this section shall result from an overall increase in appropriations for the civil works program of the Corps of Engineers and not from reductions in the appropriations for other programs, projects, and activities carried out by the Corps of Engineers for other authorized purposes.
(2) Application
The target total budget resources for a fiscal year specified in subsection (b)(1) shall only apply in a fiscal year for which the level of appropriations provided for the civil works program of the Corps of Engineers in that fiscal year is increased, as compared to the previous fiscal year, by a dollar amount that is at least equivalent to the dollar amount necessary to address such target total budget resources in that fiscal year.
(
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.
Amendments
Subsec. (b)(1).
Subsecs. (c), (d).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2238b–1. Budgetary treatment expansion and adjustment for the Harbor Maintenance Trust Fund
Any discretionary appropriation for the Corps of Engineers—
(1) derived from the Harbor Maintenance Trust Fund, in this fiscal year and thereafter, not to exceed the sum of—
(A) the total amount deposited in the Harbor Maintenance Trust Fund in the fiscal year that is two years prior to the fiscal year for which the appropriation is being made; and
(B)(i) $500,000,000 for fiscal year 2021;
(ii) $600,000,000 for fiscal year 2022;
(iii) $700,000,000 for fiscal year 2023;
(iv) $800,000,000 for fiscal year 2024;
(v) $900,000,000 for fiscal year 2025;
(vi) $1,000,000,000 for fiscal year 2026;
(vii) $1,200,000,000 for fiscal year 2027;
(viii) $1,300,000,000 for fiscal year 2028;
(ix) $1,400,000,000 for fiscal year 2029; and
(x) $1,500,000,000 for fiscal year 2030 and thereafter; and
(2) for the Operation and Maintenance account of the Corps of Engineers which is designated in statute as being to carry out subsection (c) of
(A) $50,000,000 for fiscal year 2021;
(B) $50,000,000 for fiscal year 2022;
(C) $56,000,000 for fiscal year 2023;
(D) $58,000,000 for fiscal year 2024;
(E) $60,000,000 for fiscal year 2025;
(F) $62,000,000 for fiscal year 2026;
(G) $64,000,000 for fiscal year 2027;
(H) $66,000,000 for fiscal year 2028;
(I) $68,000,000 for fiscal year 2029; and
(J) $70,000,000 for fiscal year 2030;
shall be subtracted from the estimate of discretionary budget authority and outlays for any estimate of an appropriations Act under the Congressional Budget and Impoundment Control Act of 1974 or the Balanced Budget and Emergency Deficit Control Act of 1985.
(
Editorial Notes
References in Text
The Congressional Budget and Impoundment Control Act of 1974, referred to in concluding provisions, is
The Balanced Budget and Emergency Deficit Control Act of 1985, referred to in concluding provisions, is title II of
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
2020—
§2238c. Additional measures at donor ports and energy transfer ports
(a) Definitions
In this section:
(1) Cargo container
The term "cargo container" means a cargo container that is 1 Twenty-foot Equivalent Unit.
(2) Discretionary cargo
The term "discretionary cargo" means maritime cargo for which the United States port of unlading is different than the United States port of entry.
(3) Donor port
(A) In general
The term "donor port" means a port—
(i) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(ii) at which the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund on an average annual basis for the previous 3 fiscal years;
(iii) that received less than 25 percent of the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) at that port in the previous 3 fiscal years; and
(iv) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded on to vessels on an average annual basis for the previous 3 fiscal years.
(B) Calculation
For the purpose of calculating the percentage described in subparagraph (A)(iii), payments described under subsection (c)(1) shall not be included.
(4) Energy commodity
The term "energy commodity" includes—
(A) petroleum products;
(B) natural gas;
(C) coal;
(D) wind and solar energy components; and
(E) biofuels.
(5) Energy transfer port
The term "energy transfer port" means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or any successor regulation); and
(B)(i) at which energy commodities comprised greater than 25 percent of all commercial activity by tonnage on an average annual basis for the previous 3 fiscal years; and
(ii) through which more than 40,000,000 tons of cargo were transported on an average annual basis for the previous 3 fiscal years.
(6) Expanded uses
The term "expanded uses" has the meaning given the term in
(7) Harbor maintenance tax
The term "harbor maintenance tax" has the meaning given the term in
(8) Harbor maintenance trust fund
The term "Harbor Maintenance Trust Fund" means the Harbor Maintenance Trust Fund established by
(9) Medium-sized donor port
The term "medium-sized donor port" means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(B) at which the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund on an average annual basis for the previous 3 fiscal years;
(C) that received less than 25 percent of the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) at that port in the previous 3 fiscal years; and
(D) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded onto vessels on an average annual basis for the previous 3 fiscal years.
(b) Authority
(1) In general
Subject to the availability of appropriations, the Secretary may provide to donor ports, medium-sized donor ports, and energy transfer ports amounts in accordance with this section.
(2) Limitations
Amounts provided under this section—
(A) for energy transfer ports shall be divided equally among all States with an energy transfer port;
(B) shall be made available to a port as either a donor port, medium-sized donor port, or an energy transfer port, and no port may receive amounts from more than 1 designation; and
(C) for donor ports and medium-sized donor ports—
(i) 50 percent of the funds shall be equally divided between the eligible donor ports as authorized by this section; and
(ii) 50 percent of the funds shall be divided between the eligible donor ports and eligible medium-sized donor ports based on the percentage of the total harbor maintenance tax revenues generated at each eligible donor port and medium-sized donor port.
(c) Use of funds
Amounts provided under this section may be used by a donor port, a medium-sized donor port, or an energy transfer port—
(1) to provide payments to importers entering cargo through that port, as calculated by the Secretary according to the value of discretionary cargo;
(2) for expanded uses; or
(3) for environmental remediation related to dredging berths and Federal navigation channels.
(d) Administration of payments
(1) In general
If a donor port, a medium-sized donor port, or an energy transfer port elects to provide payments to importers under subsection (c), the Secretary shall transfer to the Commissioner of U.S. Customs and Border Protection an amount equal to those payments that would otherwise be provided to the port under this section to provide the payments to the importers of the discretionary cargo that is—
(A) shipped through the port; and
(B) most at risk of diversion to seaports outside of the United States.
(2) Requirement
The Secretary, in consultation with a port electing to provide payments under subsection (c), shall determine the top importers at the port, as ranked by the value of discretionary cargo, and payments shall be limited to those top importers.
(e) Authorization of appropriations
(1) In general
There are authorized to be appropriated to carry out this section—
(A) $56,000,000 for fiscal year 2023;
(B) $58,000,000 for fiscal year 2024;
(C) $60,000,000 for fiscal year 2025;
(D) $62,000,000 for fiscal year 2026;
(E) $64,000,000 for fiscal year 2027;
(F) $66,000,000 for fiscal year 2028;
(G) $68,000,000 for fiscal year 2029; and
(H) $70,000,000 for fiscal year 2030.
(2) Division between donor ports, medium-sized donor ports, and energy transfer ports
For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to—
(A) donor ports and medium-sized donor ports; and
(B) energy transfer ports.
(f) Savings clause
Nothing in this section waives any statutory requirement related to the transportation of merchandise as authorized under
(
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.
Amendments
2020—Subsec. (a)(3)(A)(ii).
Subsec. (a)(3)(A)(iii).
Subsec. (a)(3)(A)(iv).
Subsec. (a)(5)(B).
Subsec. (a)(8), (9).
Subsec. (a)(9)(B).
Subsec. (a)(9)(C).
Subsec. (a)(9)(D).
Subsec. (e).
Subsec. (e)(1).
Subsec. (f).
Subsec. (f)(1).
Subsec. (f)(3).
Subsec. (g).
2016—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (a)(5)(A).
Subsec. (a)(6), (7).
Subsec. (a)(8).
Subsec. (b)(1).
Subsec. (b)(2)(B), (C).
Subsec. (c).
Subsec. (c)(1).
Subsec. (d).
Subsec. (f)(1).
Subsec. (f)(2).
Subsec. (f)(3).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2238d. Maintenance of harbors of refuge
The Secretary is authorized to maintain federally authorized harbors of refuge to restore and maintain the authorized dimensions of the harbors.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2238e. Additional projects for underserved community harbors
(a) In general
Subject to the availability of appropriations designated by statute as being for the purpose of carrying out this section, the Secretary may carry out projects for underserved community harbors for purposes of sustaining water-dependent commercial and recreational activities at such harbors.
(b) Beneficial use
(1) Justification
The Secretary may carry out a project under this section involving a disposal option for the beneficial use of dredged material that is not the least cost disposal option if the Secretary determines that the incremental cost of the disposal option is reasonable pursuant to the standard described in
(2) Cost share
The non-Federal share of the incremental cost of a project carried out under this section involving a disposal option for the beneficial use of dredged material that is not the least cost disposal option shall be determined as provided under subsections (a) through (d) of
(c) Prioritization
The Secretary shall prioritize carrying out projects using funds made available under this section based on an assessment of—
(1) the local or regional economic benefits of the project;
(2) the environmental benefits of the project, including the benefits to the aquatic environment to be derived from the creation of wetland and control of shoreline erosion; and
(3) other social effects of the project, including protection against loss of life and contributions to local or regional cultural heritage.
(d) Clarification
The Secretary shall not require the non-Federal interest for a project carried out under this section to perform additional operation and maintenance activities at the beneficial use placement site or the disposal site for such project as a condition of receiving assistance under this section.
(e) Federal participation limit
The Federal share of the cost of a project under this section shall not exceed $10,000,000.
(f) Statutory construction
Projects carried out under this section shall be in addition to operation and maintenance activities otherwise carried out by the Secretary for underserved community harbors using funds appropriated pursuant to
(g) Definitions
In this section:
(1) Project
The term "project" means a single cycle of maintenance dredging of an underserved community harbor and any associated placement of dredged material at a beneficial use placement site or disposal site.
(2) Underserved community harbor
The term "underserved community harbor" means an emerging harbor (as defined in
(A) no Federal funds have been obligated for maintenance dredging in the current fiscal year or in any of the 4 preceding fiscal years; and
(B) State and local investments in infrastructure have been made during any of the 4 preceding fiscal years.
(h) Authorization of appropriations
(1) In general
There is authorized to be appropriated to carry out this section $50,000,000 from the General Fund of the Treasury for each of fiscal years 2023 through 2026, to be deposited into the "
(2) Special rule
Not less than 35 percent of the amounts made available to carry out this section for each fiscal year shall be used for projects involving the beneficial use of dredged material.
(
Editorial Notes
References in Text
Section 102(a) of the Water Resources Development Act of 2020, referred to in subsec. (f), is section 102(a) of div. AA of
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2239. Repealed. Pub. L. 101–640, title IV, §412(f), Nov. 28, 1990, 104 Stat. 4650
Section,
Statutory Notes and Related Subsidiaries
Sediments Decontamination Technology
"(a)
"(1)
"(2)
"(3)
"(4)
"(5)
"(b)
"(c)
"(d)
"(e)
Alternatives to Mud Dump Site for Disposal of Dredged Material
"(a)
"(b)
"(1) an identification of the source, quantities, and characteristics of material to be dredged;
"(2) a discussion of potential alternative sites for disposal of dredged material, including the feasibility of altering the boundaries of the Mud Dump Site;
"(3) measures to reduce the quantities of dredged material proposed for ocean disposal;
"(4) measures to reduce the amount of contaminants in materials proposed to be dredged from the Harbor through source controls and decontamination technology;
"(5) a program for monitoring the physical, chemical, and biological effects of dumping dredged material at the Mud Dump Site; and
"(6) a study of the characteristics of the bottom sediments, including type and distribution.
"(c)
"(d)
"(e)
"(f)
§2240. Emergency response services
(a) Grants
The Secretary is authorized to make grants to any non-Federal interest operating a project for a harbor for provision of emergency response services in such harbor (including contingency planning, necessary personnel training, and the procurement of equipment and facilities either by the non-Federal interest, by a local agency or municipality, or by a combination of local agencies or municipalities on a cost-reimbursable basis, either by a cooperative agreement, mutual aid plan, or mutual assistance plan entered into between one or more non-Federal interests, public agencies, or local municipalities).
(b) Authorization of appropriations
There is authorized to be appropriated for fiscal years beginning after September 30, 1986, and ending before October 1, 1992, $5,000,000.
(
§2241. Definitions
For purposes of this subchapter—
(1) Deep-draft harbor
The term "deep-draft harbor" means a harbor which is authorized to be constructed to a depth of more than 45 feet (other than a project which is authorized by
(2) Eligible operations and maintenance
(A) Except as provided in subparagraph (B), the term "eligible operations and maintenance" means all Federal operations, maintenance, repair, and rehabilitation, including (i) maintenance dredging reasonably necessary to maintain the width and nominal depth of any harbor or inland harbor; (ii) the construction of dredged material disposal facilities that are necessary for the operation and maintenance of any harbor or inland harbor; (iii) dredging and disposing of contaminated sediments that are in or that affect the maintenance of Federal navigation channels; (iv) mitigating for impacts resulting from Federal navigation operation and maintenance activities; and (v) operating and maintaining dredged material disposal facilities.
(B) As applied to the Saint Lawrence Seaway, the term "eligible operations and maintenance" means all operations, maintenance, repair, and rehabilitation, including maintenance dredging reasonably necessary to keep such Seaway or navigation improvements operated or maintained by the Great Lakes St. Lawrence Seaway Development Corporation in operation and reasonable state of repair.
(C) The term "eligible operations and maintenance" does not include providing any lands, easements, or rights-of-way, or performing relocations required for project operations and maintenance.
(3) General cargo harbor
The term "general cargo harbor" means a harbor for which a project is authorized by
(4) Harbor
The term "harbor" means any channel or harbor, or element thereof, in the United States, capable of being utilized in the transportation of commercial cargo in domestic or foreign waterborne commerce by commercial vessels. The term does not include—
(A) an inland harbor;
(B) the Saint Lawrence Seaway;
(C) local access or berthing channels;
(D) channels or harbors constructed or maintained by nonpublic interests; and
(E) any portion of the Columbia River other than the channels on the downstream side of Bonneville lock and dam.
(5) Inland harbor
The term "inland harbor" means a navigation project which is used principally for the accommodation of commercial vessels and the receipt and shipment of waterborne cargoes on inland waters. The term does not include—
(A) projects on the Great Lakes;
(B) projects that are subject to tidal influence;
(C) projects with authorized depths of greater than 20 feet;
(D) local access or berthing channels; and
(E) projects constructed or maintained by nonpublic interests.
(6) Nominal depth
The term "nominal depth" means, in relation to the stated depth for any navigation improvement project, such depth, including any greater depths which must be maintained for any harbor or inland harbor or element thereof included within such project in order to ensure the safe passage at mean low tide of any vessel requiring the stated depth.
(7) Non-Federal interest
The term "non-Federal interest" has the meaning such term has under
(8) United States
The term "United States" means all areas included within the territorial boundaries of the United States, including the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Northern Mariana Islands, and any other territory or possession over which the United States exercises jurisdiction.
(
Editorial Notes
References in Text
Amendments
2020—Par. (2)(B).
1996—Par. (2)(A).
Par. (2)(C).
Statutory Notes and Related Subsidiaries
Increases in Non-Federal Share of Costs
Amendment by
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2242. Remote and subsistence harbors
(a) In general
In conducting a study of harbor and navigation improvements, the Secretary may recommend a project without the need to demonstrate that the project is justified solely by national economic development benefits if the Secretary determines that—
(1)(A) the community to be served by the project is at least 70 miles from the nearest surface accessible commercial port and has no direct rail or highway link to another community served by a surface accessible port or harbor; or
(B) the project would be located in the State of Hawaii or Alaska, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, or American Samoa;
(2) the harbor is economically critical such that over 80 percent of the goods transported through the harbor would be consumed within the region served by the harbor and navigation improvement, as determined by the Secretary, including consideration of information provided by the non-Federal interest; and
(3) the long-term viability of the community in which the project is located, or the long-term viability of a community that is located in the region that is served by the project and that will rely on the project, would be threatened without the harbor and navigation improvement.
(b) Justification
In considering whether to recommend a project under subsection (a), the Secretary shall consider the benefits of the project to—
(1) public health and safety of the local community and communities that are located in the region to be served by the project and that will rely on the project, including access to facilities designed to protect public health and safety;
(2) access to natural resources for subsistence purposes;
(3) local and regional economic opportunities;
(4) welfare of the regional population to be served by the project; and
(5) social and cultural value to the local community and communities that are located in the region to be served by the project and that will rely on the project.
(c) Prioritization
Projects recommended by the Secretary under subsection (a) shall be given equivalent budget consideration and priority as projects recommended solely by national economic development benefits.
(d) Disposition
(1) In general
The Secretary may carry out any project identified in the study carried out pursuant to subsection (a) in accordance with the criteria for projects carried out under the authority of the Secretary under
(2) Non-Federal interests
In evaluating and implementing a project under this section, the Secretary shall allow a non-Federal interest to participate in the financing of a project in accordance with the criteria established for flood control projects under section 903(c) of the Water Resources Development Act of 1986 (
(e) Annual report
For a project that cannot be carried out under the authority specified in subsection (d), on a determination by the Secretary of the feasibility of the project under subsection (a), the Secretary may include a recommendation concerning the project in the annual report submitted to Congress under
(
Editorial Notes
References in Text
Section 903(c) of the Water Resources Development Act of 1986 (
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.
Amendments
2016—Subsec. (a)(3).
Subsec. (b)(1).
Subsec. (b)(4).
Subsec. (b)(5).
2014—Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsecs. (c) to (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2243. Arctic deep draft port development partnerships
(a) In general
The Secretary may provide technical assistance to non-Federal public entities, including Indian tribes (as defined in
(b) Acceptance of funds
The Secretary is authorized to accept and expend funds provided by non-Federal public entities, including Indian tribes (as defined in
(c) Limitation
No assistance may be provided under this section until after the date on which the entity to which that assistance is to be provided enters into a written agreement with the Secretary that includes such terms and conditions as the Secretary determines to be appropriate and in the public interest.
(d) Prioritization
The Secretary shall prioritize technical assistance provided under this section for Arctic deep draft ports identified by the Secretary, the Secretary of the department in which the Coast Guard is operating, and the Secretary of Defense as important for Arctic development and security.
(e) Consideration of national security interests
In carrying out a study of the feasibility of an Arctic deep draft port, the Secretary—
(1) shall consult with the Secretary of the department in which the Coast Guard is operating to identify benefits in carrying out the missions specified in
(2) shall consult with the Secretary of Defense to identify national security benefits associated with an Arctic deep draft port; and
(3) may consider such benefits in determining whether an Arctic deep draft port is feasible.
(
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.
Amendments
2016—Subsecs. (a), (b).
Subsec. (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be followed by a closing parenthesis.
SUBCHAPTER III—INLAND WATERWAY TRANSPORTATION SYSTEM
Statutory Notes and Related Subsidiaries
Inland Waterways Regional Dredge Pilot Program
"(a)
"(b)
"(1) increase the reliability, availability, and efficiency of federally owned and federally operated inland waterways projects;
"(2) decrease operational risks across the inland waterways system; and
"(3) provide cost savings by combining work across multiple projects across different accounts of the Corps of Engineers.
"(c)
"(1)
"(2)
"(A) improve navigation reliability on inland waterways that are accessible year-round;
"(B) increase freight capacity on inland waterways; and
"(C) have the potential to enhance the availability of containerized cargo on inland waterways.
"(d)
"(e)
"(1) cost-effectiveness;
"(2) reliability and performance;
"(3) cost savings attributable to mobilization and demobilization of dredge equipment; and
"(4) response times to address navigational impediments.
"(f)
Inland Waterways Pilot Program
"(a)
"(1)
"(2)
"(3)
"(b)
"(c)
"(1)
"(A) accept and expend funds provided by a non-Federal interest to carry out, for an authorized project (or a separable element of an authorized project), modernization activities for such project; or
"(B) coordinate with the non-Federal interest in order to allow the non-Federal interest to carry out, for an authorized project (or a separable element of an authorized project), such modernization activities.
"(2)
"(3)
"(A) obtain any permit or approval required in connection with such activities under Federal or State law that would be required if the Secretary were to carry out such activities; and
"(B) ensure that a final environmental impact statement or environmental assessment, as appropriate, for such activities has been filed pursuant to the National Environmental Policy Act of 1969 [
"(4)
"(A) the modernization activities are carried out in accordance with this section; and
"(B) the cost of the modernization activities is reasonable.
"(5)
"(d)
"(1)
"(A)
"(i)
"(I) a plan approved by the Secretary; and
"(II) any other terms and conditions specified by the Secretary in the agreement.
"(ii)
"(B)
"(C)
"(2)
"(e)
"(1)
"(A) the non-Federal interest complies with the agreement entered into under subsection (d); and
"(B) with respect to modernization activities carried out by the non-Federal interest pursuant to the agreement, the Secretary determines that the non-Federal interest complied with all applicable Federal requirements in carrying out the modernization activities.
"(2)
"(f)
"(1) affects the responsibility of the Secretary for the operations and maintenance of the inland waterway system, as of the day before the date of enactment of this Act [Dec. 27, 2020], including the responsibility of the Secretary for the operations and maintenance costs for any covered project after the modernization activities are completed pursuant to this section;
"(2) prohibits or prevents the use of Federal funds for operations and maintenance of the inland waterway system or any authorized project within the inland waterway system; or
"(3) prohibits or prevents the use of Federal funds for construction or major rehabilitation activities within the inland waterway system or for any authorized project within the inland waterway system.
"(g)
"(h)
"(1)
"(2)
§2251. Inland Waterways Users Board
(a) Establishment of Users Board
There is hereby established an Inland Waterway Users Board (hereinafter in this section referred to as the "Users Board") composed of the eleven members selected by the Secretary, one of whom shall be designated by the Secretary as Chairman. The members shall be selected so as to represent various regions of the country and a spectrum of the primary users and shippers utilizing the inland and intracoastal waterways for commercial purposes. Due consideration shall be given to assure a balance among the members based on the ton-mile shipments of the various categories of commodities shipped on inland waterways. The Secretary of the Army shall designate, and the Secretaries of Agriculture, Transportation, and Commerce may each designate, a representative to act as an observer of the Users Board.
(b) Duties of Users Board
(1) In general
The Users Board shall meet not less frequently than semiannually to develop and make recommendations to the Secretary and Congress regarding the inland waterways and inland harbors of the United States.
(2) Advice and recommendations
For commercial navigation features and components of the inland waterways and inland harbors of the United States, the Users Board shall provide—
(A) prior to the development of the budget proposal of the President for a given fiscal year, advice and recommendations to the Secretary regarding construction and rehabilitation priorities and spending levels;
(B) advice and recommendations to Congress regarding any feasibility report for a project on the inland waterway system that has been submitted to Congress pursuant to
(C) advice and recommendations to Congress regarding an increase in the authorized cost of those features and components;
(D) not later than 60 days after the date of the submission of the budget proposal of the President to Congress, advice and recommendations to Congress regarding construction and rehabilitation priorities and spending levels; and
(E) advice and recommendations on the development of a long-term capital investment program in accordance with subsection (d).
(3) Project development teams
The chairperson of the Users Board shall appoint a representative of the Users Board to serve as an advisor to the project development team for a qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States.
(4) Independent judgment
Any advice or recommendation made by the Users Board to the Secretary shall reflect the independent judgment of the Users Board.
(c) Duties of Secretary
The Secretary shall—
(1) communicate not less frequently than once each quarter to the Users Board the status of the study, design, or construction of all commercial navigation features or components of the inland waterways or inland harbors of the United States; and
(2) submit to the Users Board a courtesy copy of all completed feasibility reports relating to a commercial navigation feature or component of the inland waterways or inland harbors of the United States.
(d) Capital investment program
(1) In general
Not later than 1 year after June 10, 2014, the Secretary, in coordination with the Users Board, shall develop and submit to Congress a report describing a 20-year program for making capital investments on the inland and intracoastal waterways based on the application of objective, national project selection prioritization criteria.
(2) Consideration
In developing the program under paragraph (1), the Secretary shall take into consideration the 20-year capital investment strategy contained in the Inland Marine Transportation System (IMTS) Capital Projects Business Model, Final Report published on April 13, 2010, as approved by the Users Board.
(3) Criteria
In developing the plan and prioritization criteria under paragraph (1), the Secretary shall ensure, to the maximum extent practicable, that investments made under the 20-year program described in paragraph (1)—
(A) are made in all geographical areas of the inland waterways system; and
(B) ensure efficient funding of inland waterways projects.
(4) Strategic review and update
Not later than 5 years after June 10, 2014, and not less frequently than once every 5 years thereafter, the Secretary, in coordination with the Users Board, shall—
(A) submit to Congress and make publicly available a strategic review of the 20-year program in effect under this subsection, which shall identify and explain any changes to the project-specific recommendations contained in the previous 20-year program (including any changes to the prioritization criteria used to develop the updated recommendations); and
(B) make revisions to the program, as appropriate.
(e) Project management plans
The chairperson of the Users Board and the project development team member appointed by the chairperson under subsection (b)(3) may sign the project management plan for the qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States.
(f) Administration
(1) In general
The Users Board shall be subject to
(2) Members not considered special Government employees
For the purposes of complying with
(3) Travel expenses
Non-Federal members of the Users Board while engaged in the performance of their duties away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by
(
Editorial Notes
Amendments
2022—Subsec. (f)(1).
Subsec. (f)(2).
2014—Subsec. (b).
Subsecs. (c) to (f).
1999—Subsec. (b).
§2252. Project delivery process reforms
(a) Requirements for qualifying projects
With respect to each qualifying project, the Secretary shall require—
(1) for each project manager, that—
(A) the project manager have formal project management training and certification; and
(B) the project manager be assigned from among personnel certified by the Chief of Engineers; and
(2) for an applicable cost estimation, that—
(A) the Secretary utilize a risk-based cost estimate with a confidence level of at least 80 percent; and
(B) the cost estimate be developed—
(i) for a qualifying project that requires an increase in the authorized amount in accordance with
(ii) for a qualifying project for which the first construction contract has not been awarded, prior to the award of the first construction contract;
(iii) for a qualifying project without a completed feasibility report in accordance with
(iv) for a qualifying project with a completed feasibility report in accordance with
(b) Additional project delivery process reforms
Not later than 18 months after June 10, 2014, the Secretary shall—
(1) establish a system to identify and apply on a continuing basis best management practices from prior or ongoing qualifying projects to improve the likelihood of on-time and on-budget completion of qualifying projects;
(2) evaluate early contractor involvement acquisition procedures to improve on-time and on-budget project delivery performance; and
(3) implement any additional measures that the Secretary determines will achieve the purposes of this subtitle, including—
(A) the implementation of applicable practices and procedures developed pursuant to management by the Secretary of an applicable military construction program;
(B) the development and use of a portfolio of standard designs for inland navigation locks, incorporating the use of a center of expertise for the design and review of qualifying projects;
(C) the use of full-funding contracts or formulation of a revised continuing contracts clause; and
(D) the establishment of procedures for recommending new project construction starts using a capital projects business model.
(c) Pilot projects
(1) In general
Subject to paragraph (2), the Secretary may carry out pilot projects to evaluate processes and procedures for the study, design, and construction of qualifying projects.
(2) Inclusions
At a minimum, the Secretary shall carry out pilot projects under this subsection to evaluate—
(A) early contractor involvement in the development of features and components;
(B) an appropriate use of continuing contracts for the construction of features and components; and
(C) applicable principles, procedures, and processes used for military construction projects.
(
Editorial Notes
References in Text
This subtitle, referred to in subsec. (b)(3), is subtitle A (§§2001–2013) of title II of
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.
Section is comprised of section 2002 of
Statutory Notes and Related Subsidiaries
Definitions
Secretary means the Secretary of the Army, see section 2 of
"(1)
"(2)
"(A) authorized before, on, or after the date of enactment of this Act [June 10, 2014];
"(B) not completed on the date of enactment of this Act; and
"(C) funded at least in part from the Inland Waterways Trust Fund."
§2253. Annual financial review
For any inland waterways project that the Secretary carries out that has an estimated total cost of $500,000,000 or more, the Secretary shall submit to the congressional committees referred to in subsection (a) 1 an annual financial plan for the project. The plan shall be based on detailed annual estimates of the cost to complete the remaining elements of the project and on reasonable assumptions, as determined by the Secretary, of any future increases of the cost to complete the project.
(
Editorial Notes
References in Text
The congressional committees referred to in subsection (a), referred to in text, mean the congressional committees referred to in subsec. (a) of section 2007 of
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
1 See References in Text note below.
§2254. Assessment of operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway
(a) In general
Not later than 90 days after June 10, 2014, the Secretary shall assess the operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway.
(b) Types of activities
In carrying out subsection (a), the Secretary shall assess the operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway as used for the following purposes:
(1) Commercial navigation.
(2) Commercial fishing.
(3) Subsistence, including utilization by Indian tribes (as defined in
(4) Use as ingress and egress to harbors of refuge.
(5) Transportation of persons.
(6) Purposes relating to domestic energy production, including fabrication, servicing, and supply of domestic offshore energy production facilities.
(7) Activities of the Secretary of the department in which the Coast Guard is operating.
(8) Public health and safety related equipment for responding to coastal and inland emergencies.
(9) Recreation purposes.
(10) Any other authorized purpose.
(c) Report to Congress
For fiscal year 2015, and biennially thereafter, in conjunction with the annual budget submission by the President to Congress under
(1) identifies the operation and maintenance costs required to achieve the authorized length, width, and depth;
(2) identifies the amount of funding requested in the President's budget for operation and maintenance costs; and
(3) identifies the unmet operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway.
(
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
§2255. Inland waterways riverbank stabilization
(a) In general
Not later than 1 year after June 10, 2014, and biennially thereafter, the Secretary shall conduct a study to determine the feasibility of—
(1) carrying out projects for the inland and intracoastal waterways for purposes of—
(A) flood damage reduction;
(B) emergency streambank and shoreline protection; and
(C) prevention and mitigation of shore damages attributable to navigation improvements; and
(2) modifying projects for the inland and intracoastal waterways for the purpose of improving the quality of the environment.
(b) Recommendations
In conducting the study, the Secretary shall develop specific project recommendations and prioritize those recommendations based on—
(1) the extent of damage and land loss resulting from riverbank erosion;
(2) the rate of erosion;
(3) the significant threat of future flood risk to public property, public infrastructure, or public safety;
(4) the destruction of natural resources or habitats; and
(5) the potential cost savings for maintenance of the channel.
(c) Disposition
The Secretary may carry out any project identified in the study conducted pursuant to subsection (a) in accordance with the criteria for projects carried out under one of the following authorities:
(1)
(2)
(3)
(4)
(d) Annual report
For a project recommended pursuant to the study that cannot be carried out under any of the authorities specified in subsection (c), upon a determination by the Secretary of the feasibility of the project, the Secretary may include a recommendation concerning the project in the annual report submitted to Congress under
(
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
§2255a. High water-low water preparedness
(a) Definitions
In this section:
(1) Bypass
The term "bypass" means an alternate water route adjacent to a lock and dam on a Federal inland waterway system that can be used for commercial navigation during high water conditions.
(2) Emergency condition
The term "emergency condition" means—
(A) unsafe conditions on a Federal inland waterway system that prevent the operation of commercial vessels, resulting from a major change in water level or flows;
(B) an obstruction in a Federal inland waterway system, including silt, sediment, rock formation, or a shallow channel;
(C) an impaired or inoperable Federal lock and dam; or
(D) any other condition determined appropriate by the Secretary.
(b) Emergency determination
The Secretary, in consultation with the District Commanders responsible for maintaining any Federal inland waterway system, the users of the waterway system, and the Coast Guard, may make a determination that an emergency condition exists on the waterway system.
(c) Emergency mitigation project
(1) In general
Subject to paragraph (2) and the availability of appropriations, and in accordance with all applicable Federal requirements, the Secretary may carry out an emergency mitigation project on a Federal inland waterway system with respect to which the Secretary has determined that an emergency condition exists under subsection (b), or on a bypass of such system, to remedy that emergency condition.
(2) Deadline
An emergency mitigation project under paragraph (1) shall—
(A) be initiated by not later than 60 days after the date on which the Secretary makes the applicable determination under subsection (b); and
(B) to the maximum extent practicable, be completed by not later than 1 year after the date on which the Secretary makes such determination.
(d) Authorization of appropriations
There is authorized to be appropriated to the Secretary to carry out this section $25,000,000 for each of fiscal years 2022 through 2024, to remain available until expended.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
SUBCHAPTER IV—WATER RESOURCES STUDIES
§2261. Territories development study
The Secretary is hereby authorized and directed to make studies in cooperation with the Secretary of the Interior and the governments of the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands for the purposes of providing plans for the development, utilization, and conservation of water and related land resources of such jurisdiction, at a total cost of $2,000,000 for each of the five studies. Such studies shall include appropriate consideration of the needs for flood protection, wise use of flood plain lands, navigation facilities, hydroelectric power generation, regional water supply and waste water management facilities systems, general recreation facilities, enhancement and control of water quality, enhancement and conservation of fish and wildlife, and other measures for environmental enhancement, economic and human resources development. Such studies shall be compatible with comprehensive development plans formulated by local planning agencies and other interested Federal agencies. Any funds made available under this section for a study for any such jurisdiction which is not needed for such study shall be available to the Secretary to construct authorized water resources projects in such jurisdiction and to implement the findings of such study with appropriate cost sharing as provided in this Act.
(
Editorial Notes
References in Text
This Act, referred to in text, is
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2262. Survey of potential for use of certain facilities as hydroelectric facilities
(a) Survey authority
The Secretary shall, upon the request of local public officials, survey the potential and methods for rehabilitating former industrial sites, millraces, and similar types of facilities already constructed for use as hydroelectric facilities. The Secretary shall, upon request, provide technical assistance to local public agencies, including electric cooperatives, in designing projects to rehabilitate sites that have been surveyed, or are qualified for such survey, under this section. The non-Federal share of the cost of carrying out this section shall be 50 percent.
(b) Authorization of appropriations
There is authorized to be appropriated to the Secretary, to implement this section, the sum of $5,000,000 for each of the fiscal years ending September 30, 1988, through September 30, 1992, such sums to remain available until expended.
(
§2263. Study of Corps capability to conserve fish and wildlife
(a) Investigation and study
The Secretary shall investigate and study the feasibility of utilizing the capabilities of the United States Army Corps of Engineers to conserve fish and wildlife (including their habitats) where such fish and wildlife are indigenous to the United States, its possessions, or its territories. The scope of such study shall include the use of engineering or construction capabilities to create alternative habitats, or to improve, enlarge, develop, or otherwise beneficially modify existing habitats of such fish and wildlife. The study shall be conducted in consultation with the Director of the Fish and Wildlife Service of the Department of the Interior, the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration, and the Administrator of the Environmental Protection Agency, and shall be transmitted within the 30-month period beginning on November 17, 1986, by the Secretary to Congress, together with the findings, conclusions, and recommendations of the Chief of Engineers. The Secretary, in consultation with the Federal officers referred to in the preceding sentence, shall undertake a continuing review of the matters covered in the study and shall transmit to Congress, on a biennial basis, any revisions to the study that may be required as a result of the review, together with the findings, conclusions, and recommendations of the Chief of Engineers.
(b) Projects
(1) In general
The Secretary is further authorized to conduct projects of alternative or beneficially modified habitats for fish and wildlife, including but not limited to man-made reefs for fish. There is authorized to be appropriated not to exceed $100,000,000 to carry out such projects.
(2) Inclusions
Such projects shall be developed, and their effectiveness evaluated, in consultation with the Director of the Fish and Wildlife Service and the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration. Such projects shall include—
(A) the construction of a reef for fish habitat in Lake Erie in the vicinity of Buffalo, New York;
(B) the construction of a reef for fish habitat in the Atlantic Ocean in the vicinity of Fort Lauderdale, Florida;
(C) the construction of a reef for fish habitat in Lake Ontario in the vicinity of the town of Newfane, New York; and
(D) the restoration and rehabilitation of habitat for fish, including native oysters, in the Chesapeake Bay and its tributaries in Virginia and Maryland, including—
(i) the construction of oyster bars and reefs;
(ii) the rehabilitation of existing marginal habitat;
(iii) the use of appropriate alternative substrate material in oyster bar and reef construction;
(iv) the construction and upgrading of oyster hatcheries; and
(v) activities relating to increasing the output of native oyster broodstock for seeding and monitoring of restored sites to ensure ecological success.
(3) Restoration and rehabilitation activities
The restoration and rehabilitation activities described in paragraph (2)(D) shall be—
(A) for the purpose of establishing permanent sanctuaries and harvest management areas; and
(B) consistent with plans and strategies for guiding the restoration of the Chesapeake Bay oyster resource and fishery.
(4) Cost sharing
(A) In general
The non-Federal share of the cost of any project under this subsection shall be 25 percent.
(B) Form
The non-Federal share may be provided through in-kind services, including—
(i) the provision by the non-Federal interest of shell stock material that is determined by the Secretary to be suitable for use in carrying out the project; and
(ii) in the case of a project carried out under paragraph (2)(D) after June 10, 2014, land conservation or restoration efforts undertaken by the non-Federal interest that the Secretary determines provide water quality benefits that—
(I) enhance the viability of oyster restoration efforts;
(II) are integral to the project; and
(III) are cost effective.
(C) Applicability
The non-Federal interest shall be credited with the value of in-kind services provided on or after October 1, 2000, for a project described in paragraph (1) completed on or after that date, if the Secretary determines that the work is integral to the project.
(5) Definition of ecological success
In this subsection, the term "ecological success" means—
(A) achieving a tenfold increase in native oyster biomass by the year 2010, from a 1994 baseline; and
(B) the establishment of a sustainable fishery as determined by a broad scientific and economic consensus.
In carrying out paragraph (4),1 the Chief of Engineers may solicit participation by and the services of commercial watermen in the construction of the reefs.
(
Editorial Notes
References in Text
Paragraph (4), referred to in concluding provisions of subsec. (b), meaning subsec. (b)(4) of this section, was redesignated subsec. (b)(1)(D) by
Amendments
2016—Subsec. (b)(1).
2014—Subsec. (b)(1).
Subsec. (b)(4)(B).
2007—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(2)(D).
Subsec. (b)(3), (4).
Subsec. (b)(5).
2005—Subsec. (b)(1).
2001—Subsec. (b).
2000—Subsec. (b).
Subsec. (b)(4).
1996—Subsec. (b).
Statutory Notes and Related Subsidiaries
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which a report required under subsec. (a) of this section is listed on page 68), see section 3003 of
1 See References in Text note below.
§2263a. Aquatic invasive species research
(a) In general
As part of the ongoing activities of the Engineer Research and Development Center to address the spread and impacts of aquatic invasive species, the Secretary shall undertake research on the prevention, management, and eradication of aquatic invasive species, including Asian carp, elodea, hydrilla, quagga mussels, and zebra mussels.
(b) Locations
In carrying out subsection (a), the Secretary shall work with Corps of Engineers district offices representing diverse geographical regions of the continental United States that are impacted or could be impacted in the future by aquatic invasive species, such as the Atlantic, Pacific, Arctic, and Gulf Coasts, the Great Lakes, and reservoirs operated and maintained by the Secretary.
(c) Report
Not later than 180 days after October 23, 2018, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report recommending a plan to address the spread and impacts of aquatic invasive species.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—Subsec. (a).
2020—Subsec. (a).
Subsec. (b).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 102 of
§2264. Repealed. Pub. L. 116–260, div. AA, title III, §360(a), Dec. 27, 2020, 134 Stat. 2732
Section,
§2265. Columbia River/Arkansas River Basin transfers
(a) No Federal agency shall study or participate in the study of any regional or river basin plan or any plan for any Federal water and related land resource project which has as its objective the transfer of water from the Columbia River Basin to any other region or any other major river basin of the United States, unless such study is approved by the Governors of all affected States.
(b) For a period of 5 years after November 17, 1986, no Federal agency shall study or participate in the study of any regional or river basin plan or any plan for any Federal water and related land resource project which has as its objective the transfer of water from the Arkansas River Basin to any other region or any other major river basin of the United States, unless such study is approved by the Governors of all affected States.
(
§2266. Canadian tidal power study
(a) Study authority
The Secretary, after consultation with the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service, the United States Fish and Wildlife Service, and other appropriate governmental agencies, and the National Research Council of the National Academy of Sciences, is authorized and directed to undertake studies to identify the impacts on the United States of potential Canadian tidal power development in the Bay of Fundy, and submit such studies to the appropriate committees of the Congress.
(b) Study phases
The Secretary shall conduct the studies authorized in subsection (a) of this section in two phases:
(1) Studies to be completed not later than October 1, 1988, to (A) identify effects of any such projects on tidal ranges and resulting impacts to beaches and estuarine areas, and (B) identify further studies which would be needed to meet the requirements of paragraph (2) of this subsection; and
(2) Studies to be completed not later than October 1, 1990, to (A) determine further environmental, social, economic, and institutional impacts of such tidal power development, and (B) determine what measures could be taken in Canada and the United States to offset or minimize any adverse impacts of such development on the United States.
(c) Authorization of appropriations
In the fiscal year ending September 30, 1987, or in any fiscal year thereafter, there is authorized to be appropriated to the Secretary the sum of $1,100,000 for the purposes of subsection (b)(1) of this section, and the sum of $8,900,000 for the purposes of subsection (b)(2) of this section, such sums to remain available until expended.
(
§2267. New York Bight study
(a) Study authority
The Secretary shall study a hydro-environmental monitoring and information system in the New York Bight in the form of a system using computerized buoys and radio telemetry that allows for the continual monitoring (at strategically located sites throughout the New York Bight) of the following: wind, wave, current, salinity and thermal gradients and sea chemistry, in order to measure the effect of changes due to air and water pollution, including changes due to continued dumping in the Bight.
(b) Study of physical hydraulic model
In addition, the Secretary shall study a proper physical hydraulic model of the New York Bight and for such an offshore model to be tied into the existing inshore physical hydraulic model of the Port of New York and New Jersey operated by the United States Army Corps of Engineers.
(c) Agency coordination; findings and recommendations
The Secretary shall coordinate fully with the Administrator of the Environmental Protection Agency in carrying out the study described in this section and shall report any findings and recommendations to Congress. The Secretary and the Administrator shall also consider the views of other appropriate Federal, State, and local agencies, academic institutions, and members of the public who are concerned about water quality in the New York Bight.
(d) Authorization of appropriations
There is authorized to be appropriated not more than $1,000,000 per fiscal year for each of fiscal years 1987, 1988, 1989, 1990, and 1991.
(
Statutory Notes and Related Subsidiaries
New York Bight and Harbor Study
"(a)
"(b)
"(c)
"(d)
"(e)
"(1)
"(2)
"(A) the dioxin study and monitoring required in this subsection; and
"(B) the effectiveness and costs of all reasonable remediation measures, including recommendations as to a plan for implementation of the most time and cost-effective measures.
"(f)
§2267a. Watershed and river basin assessments
(a) In general
The Secretary may assess the water resources needs of river basins and watersheds of the United States, including needs relating to—
(1) ecosystem protection and restoration;
(2) flood damage reduction;
(3) navigation and ports;
(4) watershed protection;
(5) water supply;
(6) drought preparedness;
(7) sea level rise;
(8) coastal storm damage reduction; and
(9) streambank and shoreline protection.
(b) Cooperation
An assessment under subsection (a) shall be carried out in cooperation and coordination with—
(1) the Secretary of the Interior;
(2) the Secretary of Agriculture;
(3) the Secretary of Commerce;
(4) the Administrator of the Environmental Protection Agency; and
(5) the heads of other appropriate agencies.
(c) Consultation
In carrying out an assessment under subsection (a), the Secretary shall consult with Federal, tribal, State, interstate, and local governmental entities.
(d) Priority river basins and watersheds
In selecting river basins and watersheds for assessment under this section, the Secretary shall give priority to—
(1) the Delaware River basin;
(2) the Kentucky River basin;
(3) the Potomac River basin;
(4) the Susquehanna River basin;
(5) the Willamette River basin;
(6) Tuscarawas River Basin, Ohio;
(7) Sauk River Basin, Snohomish and Skagit Counties, Washington;
(8) Niagara River Basin, New York;
(9) Genesee River Basin, New York;
(10) White River Basin, Arkansas and Missouri;
(11) New York-New Jersey Watershed Basin, which encompasses all the watersheds that flow into the New York-New Jersey Harbor and their associated estuaries, including the Hudson, Mohawk, Raritan, Passaic, Hackensack, and Bronx River Watersheds and the Hudson River Estuary;
(12) Mississippi River Watershed; and
(13) Chattahoochee River Basin, Alabama, Florida, and Georgia.
(e) Acceptance of contributions
In carrying out an assessment under subsection (a), the Secretary may accept contributions, in cash or in kind, from Federal, tribal, State, interstate, and local governmental entities to the extent that the Secretary determines that the contributions will facilitate completion of the assessment.
(f) Cost-sharing requirements
(1) Non-Federal share
The non-Federal share of the costs of an assessment carried out under this section on or after December 11, 2000, shall be 25 percent.
(2) Credit
(A) In general
Subject to subparagraph (B), the Secretary may credit toward the non-Federal share of an assessment under this section the cost of services, materials, supplies, or other in-kind contributions provided by the non-Federal interests for the assessment.
(B) Maximum amount of credit
The credit under subparagraph (A) may not exceed an amount equal to 25 percent of the costs of the assessment.
(
Editorial Notes
Amendments
2022—Subsec. (a)(7) to (9).
Subsec. (d)(11) to (13).
2007—Subsec. (d)(6) to (10).
Subsec. (f)(1).
Subsec. (g).
2000—
"(a) The Secretary, in coordination with the Secretary of the Interior and in consultation with appropriate Federal, State, and local agencies, is authorized to study the water resources needs of river basins and regions of the United States. The Secretaries shall report the results of such study to Congress not later than October 1, 1988.
"(b) In carrying out the studies authorized under subsection (a) of this section, the Secretaries shall consult with State, interstate, and local governmental entities.
"(c) There is authorized to be appropriated $5,000,000 for fiscal years beginning after September 30, 1986, to carry out this section."
§2267b. Post-disaster watershed assessments
(a) Watershed assessments
(1) In general
In an area that the President has declared a major disaster in accordance with
(2) Existing projects
A watershed assessment carried out paragraph 1 (1) may identify existing projects being carried out under 1 or more of the authorities referred to in subsection (b)(1).
(3) Duplicate watershed assessments
In carrying out a watershed assessment under paragraph (1), the Secretary shall use all existing watershed assessments and related information developed by the Secretary or other Federal, State, or local entities.
(b) Projects
(1) In general
The Secretary may carry out projects identified under a watershed assessment under subsection (a) in accordance with the criteria for projects carried out under one of the following authorities:
(A) Section 205 of the Flood Control Act of 1948 (
(B) Section 111 of the River and Harbor Act of 1968 (
(C) Section 206 of the Water Resources Development Act of 1996 (
(D) Section 1135 of the Water Resources Development Act of 1986 (
(E) Section 107 of the River and Harbor Act of 1960 (
(F) Section 3 of the Act of August 13, 1946 (
(2) Annual plan
For each project that does not meet the criteria under paragraph (1), the Secretary shall include a recommendation relating to the project in the annual report submitted to Congress by the Secretary in accordance with
(3) Existing projects
In carrying out a project under paragraph (1), the Secretary shall—
(A) to the maximum extent practicable, use all existing information and studies available for the project; and
(B) not require any element of a study completed for the project prior to the disaster to be repeated.
(c) Requirements
All requirements applicable to a project under the Acts described in subsection (b) shall apply to the project.
(d) Limitations on assessments
A watershed assessment under subsection (a) shall be initiated not later than 2 years after the date on which the major disaster declaration is issued.
(e) Assessments in territories of the United States
(1) In general
For any major disaster declared in a territory of the United States before October 23, 2018, all activities in the territory carried out or undertaken pursuant to the authorities described in this section shall be conducted at full Federal expense unless the President determines that the territory has the ability to pay the cost share for an assessment under this section without the use of loans.
(2) Territory defined
In this subsection, the term "territory of the United States" means an insular area specified in
(
Editorial Notes
References in Text
The Flood Control Act of 1948, referred to in subsecs. (b)(1)(A) and (c), is act June 30, 1948, ch. 771, title II,
The River and Harbor Act of 1968, referred to in subsecs. (b)(1)(B) and (c), is
The Water Resources Development Act of 1996, referred to in subsecs. (b)(1)(C) and (c), is
The Water Resources Development Act of 1986, referred to in subsecs. (b)(1)(D) and (c), is
The River and Harbor Act of 1960, referred to in subsecs. (b)(1)(E) and (c), is
The Act of August 13, 1946, referred to in subsecs. (b)(1)(F) and (c), is act Aug. 13, 1946, ch. 960,
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
2018—Subsec. (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be preceded by "under".
§2268. Marine technology review
(a) Dredging needs
The Secretary is authorized to conduct such studies as are necessary to provide a report to Congress on the dredging needs of the national ports and harbors of the United States. The report shall include existing and projected future project depths, types and sizes of ships in use, and world trade patterns, an assessment of the future national waterside infrastructure needs, and a comparison of drafts of United States and selected world ports.
(b) Authorization of appropriations
There is authorized to be appropriated $2,500,000 to carry out this section for fiscal years beginning after September 30, 1992. Such sums shall remain available until expended.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, 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 3 of
§2269. Tribal partnership program
(a) Definition of Indian tribe
In this section, the term "Indian tribe" has the meaning given the term in
(b) Program
(1) In general
In cooperation with Indian tribes and the heads of other Federal agencies, the Secretary may carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects, that—
(A) will substantially benefit Indian tribes; and
(B) are located primarily within Indian country (as defined in
(2) Authorized activities
An activity conducted under paragraph (1) may address—
(A) projects for flood 1 hurricane and storm damage reduction, including erosion control, environmental restoration and protection, and preservation of cultural and natural resources;
(B) watershed assessments and planning activities;
(C) technical assistance to an Indian tribe, including—
(i) assistance for planning to ameliorate flood hazards, to avoid repetitive flood impacts, to anticipate, prepare, and adapt to changing hydrological and climatic conditions and extreme weather events, and to withstand, respond to, and recover rapidly from disruption due to flood hazards; and
(ii) the provision of, and integration into planning of, hydrologic, economic, and environmental data and analyses; and
(D) such other projects as the Secretary, in cooperation with Indian tribes and the heads of other Federal agencies, determines to be appropriate.
(3) Feasibility study and reports
(A) In general
On the request of an Indian tribe, the Secretary shall conduct a study on, and provide to the Indian tribe a report describing, the feasibility of a water resources development project described in paragraph (1).
(B) Recommendation
A report under subparagraph (A) may, but shall not be required to, contain a recommendation on a specific water resources development project.
(C) Initial costs
The first $200,000 of the costs of a study under this section shall be at Federal expense.
(4) Design and construction
(A) In general
The Secretary may carry out the design and construction of a water resources development project, or separable element of a project, described in paragraph (1) that the Secretary determines is feasible if the Federal share of the cost of the project or separable element is not more than $26,000,000.
(B) Specific authorization
If the Federal share of the cost of the project or separable element described in subparagraph (A) is more than $26,000,000, the Secretary may only carry out the project or separable element if Congress enacts a law authorizing the Secretary to carry out the project or separable element.
(5) Project justification
Notwithstanding any requirement for economic justification established under
(A) significantly reduce potential flood or hurricane and storm damage hazards (which may be limited to hazards that may be addressed by measures for erosion mitigation or bank stabilization);
(B) improve the quality of the environment;
(C) reduce risks to life safety associated with the hazards described in subparagraph (A); and
(D) improve the long-term viability of the community.
(c) Consultation and coordination with Secretary of the Interior
(1) In general
In recognition of the unique role of the Secretary of the Interior concerning trust responsibilities with Indian tribes and in recognition of mutual trust responsibilities, the Secretary shall consult with the Secretary of the Interior concerning an activity conducted under subsection (b).
(2) Integration of activities
The Secretary shall—
(A) integrate civil works activities of the Department of the Army with activities of the Department of the Interior to avoid conflicts, duplications of effort, or unanticipated adverse effects on Indian tribes; and
(B) consider the authorities and programs of the Department of the Interior and other Federal agencies in any recommendations concerning an activity conducted under subsection (b).
(d) Cost sharing
(1) Ability to pay
(A) In general
Any cost-sharing agreement for an activity conducted under subsection (b) shall be subject to the ability of the non-Federal interest to pay.
(B) Use of procedures
(i) In general
The ability of a non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary.
(ii) Determination
Not later than 180 days after June 10, 2014, the Secretary shall issue guidance on the procedures described in clause (i).
(2) Credit
The Secretary may credit toward the non-Federal share of the costs of an activity conducted under subsection (b) the cost of services, studies, supplies, or other in-kind contributions provided by the non-Federal interest.
(3) Sovereign immunity
The Secretary shall not require an Indian tribe to waive the sovereign immunity of the Indian tribe as a condition to entering into a cost-sharing agreement under this subsection.
(4) Water resources development projects
(A) In general
The non-Federal share of costs for the study of a water resources development project described in subsection (b)(1) shall be 50 percent.
(B) Other costs
The non-Federal share of costs of design and construction of a project described in subparagraph (A) shall be assigned to the appropriate project purposes described in
(5) Water-related planning activities
(A) In general
The non-Federal share of costs of a watershed and river basin assessment conducted under subsection (b) shall be 25 percent.
(B) Other costs
The Federal share of costs of other water-related planning activities described in subsection (b)(1) shall be 100 percent.
(6) Technical assistance
The Federal share of the cost of activities described in subsection (b)(2)(C) shall be 100 percent.
(e) Restrictions
The Secretary is authorized to carry out activities under this section for fiscal years 2015 through 2033.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—Subsec. (a).
Subsec. (b)(2)(A).
Subsec. (b)(2)(C), (D).
Subsec. (b)(3)(C).
Subsec. (b)(4)(A).
Subsec. (b)(4)(B).
Subsec. (b)(5).
Subsec. (d)(5)(B).
Subsec. (d)(6).
Subsec. (e).
2020—Subsec. (b)(4).
2018—Subsec. (b)(4).
"(A)
"(B)
2016—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3), (4).
Subsec. (c)(1).
Subsec. (c)(2)(B).
Subsec. (d)(1)(A).
Subsec. (d)(2) to (5).
2014—Subsec. (d)(1)(B).
Subsec. (e).
2007—Subsec. (b)(1).
Subsec. (b)(1)(B).
Subsec. (b)(2).
Subsec. (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be followed by "or".
§2270. Subsurface drain systems research and development
Subject to the availability of appropriations, the Secretary, acting through the Director of the Engineer Research and Development Center and, where appropriate, in consultation with other Federal agencies, shall carry out research and development activities relating to the use of subsurface drain systems as—
(1) a flood risk-reduction measure; or
(2) a coastal storm risk-reduction measure.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
SUBCHAPTER V—GENERAL PROVISIONS
§2280. Maximum cost of projects
(a) In general
In order to insure against cost overruns, each total cost set forth with respect to a project for water resources development and conservation and related purposes authorized to be carried out by the Secretary in this Act or in a law enacted after the date of the enactment of this Act, including the Water Resources Development Act of 1988, or in an amendment made by this Act or any later law with respect to such a project shall be the maximum cost of that project, except that such maximum amount—
(1) may be increased by the Secretary for modifications which do not materially alter the scope or functions of the project as authorized, but not by more than 20 percent of the total cost stated for the project in this Act, in any later law, or in an amendment made by this Act or any later law; and
(2) shall be automatically increased for—
(A) changes in construction costs applied to unconstructed features (including real property acquisitions, preconstruction studies, planning, engineering, and design) from the date of enactment of this Act or any later law (unless otherwise specified) as indicated by engineering and other appropriate cost indexes; and
(B) additional studies, modifications, and actions (including mitigation and other environmental actions) authorized by this Act or any later law or required by changes in Federal law.
(b) Contributions by non-Federal interests
Notwithstanding subsection (a), in accordance with
(
Editorial Notes
References in Text
This Act, referred to in subsec. (a), is
The date of enactment of this Act, referred to in subsec. (a), is the date of enactment of
The Water Resources Development Act of 1988, referred to in subsec. (a), is
Amendments
2014—
1988—
Par. (1).
Par. (2).
Statutory Notes and Related Subsidiaries
Continuation of Construction
"(a)
"(1)
"(A) defer the initiation or continuation of construction of the water resources development project during the covered period; or
"(B) terminate during or after the covered period, a contract for design or construction of the water resources development project that was entered into prior to or during the covered period.
"(2)
"(b)
"(1)
"(2)
"(A) an estimate of the expected increase in the cost of the project that is in excess of the authorized maximum cost for the project;
"(B) a description of the reason for the increased cost of the project; and
"(C) the expected timeline for submission of a post-authorization change report for the project in accordance with section 1132 of the Water Resources Development Act of 2016 (
"(3)
"(c)
"(d)
"(e)
§2281. Matters to be addressed in planning
(a) In general
Enhancing national economic development (including benefits to particular regions of the Nation not involving the transfer of economic activity to such regions from other regions), the quality of the total environment (including preservation and enhancement of the environment), the well-being of the people of the United States, the prevention of loss of life, and the preservation of cultural and historical values shall be addressed in the formulation and evaluation of water resources projects to be carried out by the Secretary, and the associated benefits and costs, both quantifiable and unquantifiable, and information regarding potential loss of human life that may be associated with flooding and coastal storm events, shall be displayed in the benefits and costs of such projects.
(b) Assessments
For all feasibility reports for water resources projects completed after December 31, 2007, the Secretary shall assess whether—
(1) the water resources project and each separable element is cost-effective; and
(2) the water resources project complies with Federal, State, and local laws (including regulations) and public policies.
(
Editorial Notes
Amendments
2007—
1996—
1990—
Statutory Notes and Related Subsidiaries
Rural Project Evaluation and Selection Criteria
§2281a. Tribal Liaison
(a) In general
Beginning not later than 1 year after December 23, 2022, the District Commander for each Corps of Engineers district that contains a Tribal community shall have on staff a Tribal Liaison.
(b) Duties
Each Tribal Liaison shall make recommendations to the applicable District Commander regarding, and be responsible for—
(1) removing barriers to access to, and participation in, Corps of Engineers programs for Tribal communities, including by improving implementation of
(2) improving outreach to, and engagement with, Tribal communities about relevant Corps of Engineers programs and services;
(3) identifying and engaging with Tribal communities suffering from water resources challenges;
(4) improving, expanding, and facilitating government-to-government consultation between Tribal communities and the Corps of Engineers;
(5) coordinating and implementing all relevant Tribal consultation policies and associated guidelines, including the requirements of section 2356 of title;
(6) training and tools to facilitate the ability of Corps of Engineers staff to effectively engage with Tribal communities in a culturally competent manner, especially in regards to lands of ancestral, historic, or cultural significance to a Tribal community, including burial sites; and
(7) such other issues identified by the Secretary.
(c) Uniformity
Not later than 120 days after December 23, 2022, the Secretary shall finalize guidelines for—
(1) a position description for Tribal Liaisons; and
(2) required qualifications for Tribal Liaisons, including experience and expertise relating to Tribal communities and water resource issues.
(d) Funding
Funding for the position of Tribal Liaison shall be allocated from the budget line item provided for the expenses necessary for the supervision and general administration of the civil works program, and filling the position shall not be dependent on any increase in this budget line item.
(e) Definitions
In this section:
(1) Tribal community
The term "Tribal community" means a community of people who are recognized and defined under Federal law as indigenous people of the United States.
(2) Tribal Liaison
The term "Tribal Liaison" means a permanent employee of a Corps of Engineers district whose primary responsibilities are to—
(A) serve as a direct line of communication between the District Commander and the Tribal communities within the boundaries of the Corps of Engineers district; and
(B) ensure consistency in government-to-government relations.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2281b. Corps of Engineers support for underserved communities; outreach
(a) In general
It is the policy of the United States for the Corps of Engineers to strive to understand and accommodate and, in coordination with non-Federal interests, seek to address the water resources development needs of all communities in the United States.
(b) Outreach and access
(1) In general
The Secretary shall, at Federal expense, develop, support, and implement public awareness, education, and regular outreach and engagement efforts for potential non-Federal interests with respect to the water resources development authorities of the Secretary, with particular emphasis on—
(A) technical service programs, including the authorities under—
(i)
(ii)
(iii)
(B) continuing authority programs, as such term is defined in
(2) Implementation
In carrying out this subsection, the Secretary shall—
(A) develop and make publicly available (including on a publicly available website), technical assistance materials, guidance, and other information with respect to the water resources development authorities of the Secretary;
(B) establish and make publicly available (including on a publicly available website), an appropriate point of contact at each district and division office of the Corps of Engineers for inquiries from potential non-Federal interests relating to the water resources development authorities of the Secretary;
(C) conduct regular outreach and engagement, including through hosting seminars and community information sessions, with local elected officials, community organizations, and previous and potential non-Federal interests, on opportunities to address local water resources challenges through the water resources development authorities of the Secretary;
(D) issue guidance for, and provide technical assistance through technical service programs to, non-Federal interests to assist such interests in pursuing technical services and developing proposals for water resources development projects; and
(E) provide, at the request of a non-Federal interest, assistance with researching and identifying existing project authorizations or authorities to address local water resources challenges.
(3) Prioritization
In carrying out this subsection, the Secretary shall, to the maximum extent practicable, prioritize awareness, education, and outreach and engagement to economically disadvantaged communities (as defined by the Secretary under section 160 of the Water Resources Development Act of 2020 (
(4) Authorization of appropriations
There is authorized to be appropriated to carry out this section $30,000,000 for each fiscal year.
(
Editorial Notes
References in Text
Section 160 of the Water Resources Development Act of 2020, referred to in subsec. (b)(3), is section 160 of div. AA of
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Tribal and Economically Disadvantaged Communities Advisory Committee
"(a)
"(b)
"(1) 5 individuals representing organizations with expertise in environmental policy, rural water resources, economically disadvantaged communities, Tribal rights, or civil rights; and
"(2) 5 individuals, each representing a non-Federal interest for a Corps of Engineers project.
"(c)
"(1)
"(A) efficiently and effectively delivering solutions to the needs and challenges of water resources development projects for economically disadvantaged communities and Indian Tribes;
"(B) integrating consideration of economically disadvantaged communities and Indian Tribes, where applicable, in the development of water resources development projects and programs of the Corps of Engineers; and
"(C) improving the capability and capacity of the workforce of the Corps of Engineers to assist economically disadvantaged communities and Indian Tribes.
"(2)
"(3)
"(A) included in a report submitted to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives; and
"(B) made publicly available, including on a publicly available website.
"(d)
"(e)
"(1)
"(2)
"(3)
"(f)
"(1)
"(2)
"(3)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 8002 of
§2282. Feasibility reports
(a) Preparation of reports
(1) In general
In the case of any water resources project-related study authorized to be undertaken by the Secretary that results in recommendations concerning a project or the operation of a project and that requires specific authorization by Congress in law or otherwise, the Secretary shall prepare a feasibility report, subject to
(2) Contents of feasibility reports
A feasibility report shall describe, with reasonable certainty, the economic, environmental, and social benefits and detriments of the recommended plan and alternative plans considered by the Secretary and the engineering features (including hydrologic and geologic information), the public acceptability, and the purposes, scope, and scale of the recommended plan. A feasibility report shall also include the views of other Federal agencies and non-Federal agencies with regard to the recommended plan, a description of a nonstructural alternative to the recommended plan when such plan does not have significant nonstructural features, and a description of the Federal and non-Federal participation in such plan, and shall demonstrate that States, other non-Federal interests, and Federal agencies have been consulted in the development of the recommended plan. A feasibility report shall include a preliminary analysis of the Federal interest and the costs, benefits, and environmental impacts of the project.
(3) Applicability
This subsection shall not apply to—
(A) any study with respect to which a report has been submitted to Congress before November 17, 1986;
(B) any study for a project, which project is authorized for construction by this Act and is not subject to section 903(b); 1
(C) any study for a project which does not require specific authorization by Congress in law or otherwise; and
(D) general studies not intended to lead to recommendation of a specific water resources project.
(4) Feasibility report defined
In this subsection, the term "feasibility report" means each feasibility report, and any associated environmental impact statement and mitigation plan, prepared by the Corps of Engineers for a water resources project. The term includes a project implementation report prepared under title VI of the Water Resources Development Act of 2000 (
(b) Federal interest determination
(1) In general
(A) Economically disadvantaged communities
In preparing a feasibility report under subsection (a) for a study that will benefit an economically disadvantaged community, upon request by the non-Federal interest for the study, the Secretary shall first determine the Federal interest in carrying out the study and the projects that may be proposed in the study.
(B) Other communities
In preparing a feasibility report under subsection (a) for a study that will benefit a community other than a community described in subparagraph (A), upon request by the non-Federal interest for the study, the Secretary may, with respect to not more than 20 studies in each fiscal year, first determine the Federal interest in carrying out the study and the projects that may be proposed in the study.
(2) Cost share
The costs of a determination under paragraph (1)—
(A) shall be at Federal expense; and
(B) shall not exceed $200,000.
(3) Deadline
A determination under paragraph (1) shall be completed by not later than 120 days after the date on which funds are made available to the Secretary to carry out the determination.
(4) Treatment
(A) Timing
The period during which a determination is being completed under paragraph (1) for a study shall not be included for purposes of the deadline to complete a final feasibility report under
(B) Cost
The cost of a determination under paragraph (1) shall not be included for purposes of the maximum Federal cost under
(5) Report to non-Federal interest
If, based on a determination under paragraph (1), the Secretary determines that a study or project is not in the Federal interest because the project will not result, or is unlikely to result, in a recommended plan that will produce national economic development benefits greater than cost, but may result in a technically sound and environmentally acceptable plan that is otherwise consistent with
(c) Projects not specifically authorized by Congress
In the case of any water resources project-related study authorized to be undertaken by the Secretary without specific authorization by Congress in law or otherwise, the Secretary shall prepare a detailed project report.
(d) Indian tribes
For purposes of studies undertaken pursuant to this section, the Secretary is authorized to consider benefits which may accrue to Indian tribes as a result of a project resulting from such a study.
(e) Standard and uniform procedures and practices
The Secretary shall undertake such measures as are necessary to ensure that standard and uniform procedures and practices are followed by each district office (and each division office for any area in which there is no district office) of the United States Army Corps of Engineers in the preparation of feasibility reports on water resources projects.
(f) Enhanced public participation
(1) In general
The Secretary shall establish procedures to enhance public participation in the development of each feasibility study under subsection (a), including, if appropriate, establishment of a stakeholder advisory group to assist the Secretary with the development of the study.
(2) Membership
If the Secretary provides for the establishment of a stakeholder advisory group under this subsection, the membership of the advisory group shall include balanced representation of social, economic, and environmental interest groups, and such members shall serve on a voluntary, uncompensated basis.
(3) Limitation
Procedures established under this subsection shall not delay development of any feasibility study under subsection (a).
(g) Detailed project schedule
(1) In general
Not later than 180 days after June 10, 2014, the Secretary shall determine a set of milestones needed for the completion of a feasibility study under this subsection, including all major actions, report submissions and responses, reviews, and comment periods.
(2) Detailed project schedule milestones
Each District Engineer shall, to the maximum extent practicable, establish a detailed project schedule, based on full funding capability, that lists all deadlines for milestones relating to feasibility studies in the District developed by the Secretary under paragraph (1).
(3) Non-Federal interest notification
Each District Engineer shall submit by certified mail the detailed project schedule under paragraph (2) to each relevant non-Federal interest—
(A) for projects that have received funding from the General Investigations Account of the Corps of Engineers in the period beginning on October 1, 2009, and ending on June 10, 2014, not later than 180 days after the establishment of milestones under paragraph (1); and
(B) for projects for which a feasibility cost-sharing agreement is executed after the establishment of milestones under paragraph (1), not later than 90 days after the date on which the agreement is executed.
(4) Congressional and public notification
Beginning in the first full fiscal year after June 10, 2014, the Secretary shall—
(A) submit an annual report that lists all detailed project schedules under paragraph (2) and an explanation of any missed deadlines to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives; and
(B) make publicly available, including on the Internet, a copy of the annual report described in subparagraph (A) not later than 14 days after date 2 on which a report is submitted to Congress.
(5) Failure to act
If a District Engineer fails to meet any of the deadlines in the project schedule under paragraph (2), the District Engineer shall—
(A) not later than 30 days after each missed deadline, submit to the non-Federal interest a report detailing—
(i) why the District Engineer failed to meet the deadline; and
(ii) a revised project schedule reflecting amended deadlines for the feasibility study; and
(B) not later than 30 days after each missed deadline, make publicly available, including on the Internet, a copy of the amended project schedule described in subparagraph (A)(ii).
(
Editorial Notes
References in Text
This Act, referred to in subsec. (a)(3)(B), is
Section 903(b), referred to in subsec. (a)(3)(B), is section 903(b) of
The Water Resources Development Act of 2000, referred to in subsec. (a)(4), is
Amendments
2022—Subsec. (b)(1)(B).
2020—Subsec. (b).
2014—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (b).
Subsec. (g).
2007—Subsec. (a).
Subsec. (b).
Subsecs. (c) to (f).
2000—Subsec. (e).
Statutory Notes and Related Subsidiaries
Summary of Analysis
Natural Infrastructure
Continuation of Studies
Expedited Completion of Reports
"(1) expedite the completion of any on-going feasibility study for a project initiated before the date of enactment of this Act [June 10, 2014]; and
"(2) if the Secretary determines that the project is justified in a completed report, proceed directly to preconstruction planning, engineering, and design of the project in accordance with section 910 of the Water Resources Development Act of 1986 (
National Academy of Sciences Study
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(1)
"(2)
"(A) the cost, time requirements, and other considerations relating to the implementation of independent peer review; and
"(B) objective criteria that may be used to determine the most effective application of independent peer review to feasibility reports for each type of water resources project.
"(3)
"(A) the results of the study conducted under paragraphs (1) and (2); and
"(B) in light of the results of the study, specific recommendations, if any, on a program for implementing independent peer review of feasibility reports.
"(4)
"(c)
"(1)
"(A) a review of state-of-the-art methods;
"(B) a review of the methods currently used by the Secretary;
"(C) a review of a sample of instances in which the Secretary has applied the methods identified under subparagraph (B) in the analysis of each type of water resources project; and
"(D) a comparative evaluation of the basis and validity of state-of-the-art methods identified under subparagraph (A) and the methods identified under subparagraphs (B) and (C).
"(2)
"(A) the results of the study conducted under paragraph (1); and
"(B) in light of the results of the study, specific recommendations for modifying any of the methods currently used by the Secretary for conducting economic and environmental analyses of water resources projects.
"(3)
Engineering Consulting Services
Definitions
For definition of "economically disadvantaged community" as used in subsec. (b) of this section, see section 160 of div. AA of
1 See References in Text note below.
2 So in original. Probably should be preceded by "the".
§2282a. Planning
(a) Omitted
(b) Planning process improvements
The Chief of Engineers—
(1) shall adopt a risk analysis approach to project cost estimates for water resources projects; and
(2) not later than one year after November 8, 2007, shall—
(A) issue procedures for risk analysis for cost estimation for water resources projects; and
(B) submit to Congress a report that includes any recommended amendments to
(c) Benchmarks
(1) In general
Not later than 12 months after November 8, 2007, the Chief of Engineers shall establish benchmarks for determining the length of time it should take to conduct a feasibility study for a water resources project and its associated review process under the National Environmental Policy Act of 1969 (
(2) Benchmark goals
The Chief of Engineers shall establish, to the extent practicable, under paragraph (1) benchmark goals for completion of feasibility studies for water resources projects generally within 2 years. In the case of feasibility studies that the Chief of Engineers determines may require additional time based on the project type, size, cost, or complexity, the benchmark goal for completion shall be generally within 4 years.
(d) Calculation of benefits and costs for flood damage reduction projects
A feasibility study for a project for flood damage reduction shall include, as part of the calculation of benefits and costs—
(1) a calculation of the residual risk of flooding following completion of the proposed project;
(2) a calculation of the residual risk of loss of human life and residual risk to human safety following completion of the proposed project;
(3) a calculation of any upstream or downstream impacts of the proposed project; and
(4) calculations to ensure that the benefits and costs associated with structural and nonstructural alternatives are evaluated in an equitable manner.
(e) Centers of specialized planning expertise
(1) Establishment
The Secretary may establish centers of expertise to provide specialized planning expertise for water resources projects to be carried out by the Secretary in order to enhance and supplement the capabilities of the districts of the Corps of Engineers.
(2) Duties
A center of expertise established under this subsection shall—
(A) provide technical and managerial assistance to district commanders of the Corps of Engineers for project planning, development, and implementation;
(B) provide agency peer reviews of new major scientific, engineering, or economic methods, models, or analyses that will be used to support decisions of the Secretary with respect to feasibility studies for water resources projects;
(C) provide support for independent peer review panels under
(D) carry out such other duties as are prescribed by the Secretary.
(3) Deep draft navigation planning center of expertise
(A) In general
The Secretary shall consolidate deep draft navigation expertise within the Corps of Engineers into a deep draft navigation planning center of expertise.
(B) List
Not later than 60 days after the date of the consolidation required under subparagraph (A), 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 list of the grade levels and expertise of each of the personnel assigned to the center described in subparagraph (A).
(f) Completion of Corps of Engineers reports
(1) Alternatives
(A) In general
Feasibility and other studies and assessments for a water resources project shall include recommendations for alternatives—
(i) that, as determined in coordination with the non-Federal interest for the project, promote integrated water resources management; and
(ii) for which the non-Federal interest is willing to provide the non-Federal share for the studies or assessments.
(B) Constraints
The alternatives contained in studies and assessments described in subparagraph (A) shall not be constrained by budgetary or other policy.
(C) Reports of Chief of Engineers
The reports of the Chief of Engineers shall identify any recommendation that is not the best technical solution to water resource needs and problems and the reason for the deviation.
(2) Report completion
The completion of a report of the Chief of Engineers for a water resources project—
(A) shall not be delayed while consideration is being given to potential changes in policy or priority for project consideration; and
(B) shall be submitted, on completion, to—
(i) the Committee on Environment and Public Works of the Senate; and
(ii) the Committee on Transportation and Infrastructure of the House of Representatives.
(g) Completion review
(1) In general
Except as provided in paragraph (2), not later than 120 days after the date of completion of a report of the Chief of Engineers that recommends to Congress a water resources project, the Secretary shall—
(A) review the report; and
(B) provide any recommendations of the Secretary regarding the water resources project to Congress.
(2) Prior reports
Not later than 180 days after November 8, 2007, with respect to any report of the Chief of Engineers recommending a water resources project that is complete prior to November 8, 2007, the Secretary shall complete review of, and provide recommendations to Congress for, the report in accordance with paragraph (1).
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (c)(1), is
Codification
Section is comprised of section 2033 of
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.
Amendments
2014—Subsec. (e)(3).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2282b. Submission of reports to Congress
Beginning on January 17, 2014, and hereafter, not later than 120 days after the date of the Chief of Engineers Report on a water resource matter, the Assistant Secretary of the Army (Civil Works) shall submit the report to the appropriate authorizing and appropriating committees of the Congress.
(
Editorial Notes
Codification
Section was enacted as part of the Energy and Water Development and Related Agencies Appropriations Act, 2014, and also as part of the Consolidated Appropriations Act, 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2282c. Vertical integration and acceleration of studies
(a) In general
To the extent practicable, a feasibility study initiated by the Secretary, after June 10, 2014, under
(1) result in the completion of a final feasibility report not later than 3 years after the date of initiation;
(2) have a maximum Federal cost of $3,000,000; and
(3) ensure that personnel from the district, division, and headquarters levels of the Corps of Engineers concurrently conduct the review required under that section.
(b) Extension
If the Secretary determines that a feasibility study described in subsection (a) will not be conducted in accordance with subsection (a), the Secretary, not later than 30 days after the date of making the determination, shall—
(1) prepare an updated feasibility study schedule and cost estimate;
(2) notify the non-Federal feasibility cost-sharing partner that the feasibility study has been delayed; and
(3) provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives as to the reasons the requirements of subsection (a) are not attainable.
(c) Exception
(1) In general
The Secretary may extend the timeline of a study by a period not to exceed 3 years, if the Secretary determines that the feasibility study is too complex to comply with the requirements of subsection (a).
(2) Factors
In making a determination that a study is too complex to comply with the requirements of subsection (a), the Secretary shall consider—
(A) the type, size, location, scope, and overall cost of the project;
(B) whether the project will use any innovative design or construction techniques;
(C) whether the project will require significant action by other Federal, State, or local agencies;
(D) whether there is significant public dispute as to the nature or effects of the project; and
(E) whether there is significant public dispute as to the economic or environmental costs or benefits of the project.
(3) Notification
Each time the Secretary makes a determination under this subsection, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives as to the results of that determination, including an identification of the specific 1 or more factors used in making the determination that the project is complex.
(d) Reviews
Not later than 90 days after the date of the initiation of a study described in subsection (a) for a project, the Secretary shall—
(1) take all steps necessary to initiate the process for completing federally mandated reviews that the Secretary is required to complete as part of the study, including the environmental review process under section 1005;
(2) convene a meeting of all Federal, tribal, and State agencies identified under
(3) take all steps necessary to provide information that will enable required reviews and analyses related to the project to be conducted by other agencies in a thorough and timely manner.
(e) Interim report
Not later than 18 months after 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 describes—
(1) the status of the implementation of the planning process under this section, including the number of participating projects;
(2) a review of project delivery schedules, including a description of any delays on those studies participating in the planning process under this section; and
(3) any recommendations for additional authority necessary to support efforts to expedite the feasibility study process for water resource projects.
(f) Final report
Not later than 4 years after 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 describes—
(1) the status of the implementation of this section, including a description of each feasibility study subject to the requirements of this section;
(2) the amount of time taken to complete each feasibility study; and
(3) any recommendations for additional authority necessary to support efforts to expedite the feasibility study process, including an analysis of whether the limitation established by subsection (a)(2) needs to be adjusted to address the impacts of inflation.
(
Editorial Notes
References in Text
Section 1005, referred to in subsec. (d)(1), is section 1005 of
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
2020—Subsec. (c).
Subsec. (d).
Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (d)(4).
Subsecs. (e) to (g).
2018—Subsec. (d)(4).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2282d. Annual report to Congress
(a) In general
Not later than February 1 of each year, the Secretary shall develop and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an annual report, to be entitled "Report to Congress on Future Water Resources Development", that identifies the following:
(1) Feasibility reports
Each feasibility report that meets the criteria established in subsection (c)(1)(A).
(2) Proposed feasibility studies
Any proposed feasibility study submitted to the Secretary by a non-Federal interest pursuant to subsection (b) that meets the criteria established in subsection (c)(1)(A).
(3) Proposed modifications
Any proposed modification to an authorized water resources development project or feasibility study that meets the criteria established in subsection (c)(1)(A) that—
(A) is submitted to the Secretary by a non-Federal interest pursuant to subsection (b); or
(B) is identified by the Secretary for authorization.
(4) Programmatic modifications
Any programmatic modification for an environmental infrastructure assistance program.
(b) Requests for proposals
(1) Publication
Not later than May 1 of each year, the Secretary shall publish in the Federal Register a notice requesting proposals from non-Federal interests for proposed feasibility studies, proposed modifications to authorized water resources development projects and feasibility studies, and proposed modifications for an environmental infrastructure program to be included in the annual report.
(2) Deadline for requests
The Secretary shall include in each notice required by this subsection a requirement that non-Federal interests submit to the Secretary any proposals described in paragraph (1) by not later than 120 days after the date of publication of the notice in the Federal Register in order for the proposals to be considered for inclusion in the annual report.
(3) Notification
On the date of publication of each notice required by this subsection, the Secretary shall—
(A) make the notice publicly available, including on the Internet; and
(B) provide written notification of the publication to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.
(c) Contents
(1) Feasibility reports, proposed feasibility studies, and proposed modifications
(A) Criteria for inclusion in report
The Secretary shall include in the annual report only those feasibility reports, proposed feasibility studies, and proposed modifications to authorized water resources development projects and feasibility studies that—
(i) are related to the missions and authorities of the Corps of Engineers;
(ii) require specific congressional authorization, including by an Act of Congress;
(iii) have not been congressionally authorized;
(iv) have not been included in any previous annual report; and
(v) if authorized, could be carried out by the Corps of Engineers.
(B) Description of benefits
(i) Description
The Secretary shall describe in the annual report, to the extent applicable and practicable, for each proposed feasibility study and proposed modification to an authorized water resources development project or feasibility study included in the annual report, the benefits, as described in clause (ii), of each such study or proposed modification (including the water resources development project that is the subject of the proposed feasibility study or the proposed modification to an authorized feasibility study).
(ii) Benefits
The benefits (or expected benefits, in the case of a proposed feasibility study) described in this clause are benefits to—
(I) the protection of human life and property;
(II) improvement to transportation;
(III) the national, regional, or local economy;
(IV) the environment; or
(V) the national security interests of the United States.
(C) Identification of other factors
The Secretary shall identify in the annual report, to the extent practicable—
(i) for each proposed feasibility study included in the annual report, the non-Federal interest that submitted the proposed feasibility study pursuant to subsection (b); and
(ii) for each proposed feasibility study and proposed modification to an authorized water resources development project or feasibility study included in the annual report, whether the non-Federal interest has demonstrated—
(I) that local support exists for the proposed feasibility study or proposed modification to an authorized water resources development project or feasibility study (including the water resources development project that is the subject of the proposed feasibility study or the proposed modification to an authorized feasibility study); and
(II) the financial ability to provide the required non-Federal cost share.
(D) Modifications of projects carried out pursuant to continuing authority programs
(i) In general
With respect to a project being carried out pursuant to a continuing authority program for which a proposed modification is necessary because the project is projected to exceed, in the coming fiscal year, the maximum Federal cost of the project, the Secretary shall include a proposed modification in the annual report if the proposed modification will result in completion of construction the 1 project and the justification for the modification is not the result of a change in the scope of the project.
(ii) Inclusion
For each proposed modification included in an annual report under clause (i), the Secretary shall include in the annual report—
(I) a justification of why the modification is necessary;
(II) an estimate of the total cost and timeline required to complete construction of the project; and
(III) an indication of continued support by the non-Federal interest and the financial ability of the non-Federal interest to provide the required cost-share.
(iii) Definition
For the purposes of this subparagraph, the term "continuing authority program" means any of—
(I)
(II)
(III)
(IV)
(V)
(VI)
(VII)
(VIII)
(IX)
(2) Transparency
The Secretary shall include in the annual report, for each feasibility report, proposed feasibility study, and proposed modification to an authorized water resources development project or feasibility study included under paragraph (1)(A)—
(A) the name of the associated non-Federal interest, including the name of any non-Federal interest that has contributed, or is expected to contribute, a non-Federal share of the cost of—
(i) the feasibility report;
(ii) the proposed feasibility study;
(iii) the authorized feasibility study for which the modification is proposed; or
(iv) construction of—
(I) the water resources development project that is the subject of—
(aa) the feasibility report;
(bb) the proposed feasibility study; or
(cc) the authorized feasibility study for which a modification is proposed; or
(II) the proposed modification to an authorized water resources development project;
(B) a letter or statement of support for the feasibility report, proposed feasibility study, or proposed modification to an authorized water resources development project or feasibility study from each associated non-Federal interest;
(C) the purpose of the feasibility report, proposed feasibility study, or proposed modification to an authorized water resources development project or feasibility study;
(D) an estimate, to the extent practicable, of the Federal, non-Federal, and total costs of—
(i) the proposed modification to an authorized feasibility study; and
(ii) construction of—
(I) the water resources development project that is the subject of—
(aa) the feasibility report; or
(bb) the authorized feasibility study for which a modification is proposed, with respect to the change in costs resulting from such modification; or
(II) the proposed modification to an authorized water resources development project; and
(E) an estimate, to the extent practicable, of the monetary and nonmonetary benefits of—
(i) the water resources development project that is the subject of—
(I) the feasibility report; or
(II) the authorized feasibility study for which a modification is proposed, with respect to the benefits of such modification; or
(ii) the proposed modification to an authorized water resources development project.
(3) Certification
The Secretary shall include in the annual report a certification stating that each feasibility report, proposed feasibility study, and proposed modification to an authorized water resources development project or feasibility study included in the annual report meets the criteria established in paragraph (1)(A).
(4) Appendix
(A) In general
The Secretary shall include in the annual report an appendix listing the proposals submitted under subsection (b) that were not included in the annual report under paragraph (1)(A) and a description of why the Secretary determined that those proposals did not meet the criteria for inclusion under such paragraph.
(B) Limitation
In carrying out the activities described in this section—
(i) the Secretary shall not include proposals in the appendix of the annual report that otherwise meet the criteria for inclusion in the annual report solely on the basis of the Secretary's determination that the proposal requires legislative changes to an authorized water resources development project, feasibility study, or environmental infrastructure program;
(ii) the Secretary shall not include proposals in the appendix of the annual report that otherwise meet the criteria for inclusion in the annual report solely on the basis that the proposals are for the purposes of navigation, flood risk management, ecosystem restoration, or municipal or agricultural water supply; and
(iii) the Secretary shall not include proposals in the appendix of the annual report that otherwise meet the criteria for inclusion in the annual report solely on the basis of a policy of the Secretary.
(d) Programmatic modifications in annual report
The Secretary shall include in the annual report only proposed modifications for an environmental infrastructure assistance program that have not been included in any previous annual report. For each proposed modification, the Secretary shall include a letter or statement of support for the proposed modification from each associated non-Federal interest, description of assistance provided, and total Federal cost of assistance provided.
(e) Special rule for initial annual report
Notwithstanding any other deadlines required by this section, the Secretary shall—
(1) not later than 60 days after June 10, 2014, publish in the Federal Register a notice required by subsection (b)(1); and
(2) include in such notice a requirement that non-Federal interests submit to the Secretary any proposals described in subsection (b)(1) by not later than 120 days after the date of publication of such notice in the Federal Register in order for such proposals to be considered for inclusion in the first annual report developed by the Secretary under this section.
(f) Publication
Upon submission of an annual report to Congress, the Secretary shall make the annual report publicly available, including through publication on the Internet.
(g) Definitions
In this section:
(1) Annual report
The term "annual report" means a report required by subsection (a).
(2) Feasibility report
(A) In general
The term "feasibility report" means a final feasibility report developed under
(B) Inclusions
The term "feasibility report" includes—
(i) a report described in
(ii) where applicable, any associated report of the Chief of Engineers.
(3) Feasibility study
The term "feasibility study" has the meaning given that term in
(4) Non-Federal interest
The term "non-Federal interest" has the meaning given that term in
(5) Water resources development project
The term "water resources development project" includes a project under an environmental infrastructure assistance program.
(
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.
Amendments
2020—Subsec. (c)(1)(B)(ii)(III).
Subsec. (c)(1)(D).
Subsec. (c)(4)(B)(ii), (iii).
Subsec. (g)(5).
2018—Subsec. (a)(4).
Subsec. (b)(1).
Subsec. (c)(4).
Subsecs. (d) to (g).
2016—Subsec. (f)(5).
Statutory Notes and Related Subsidiaries
Over-Budget Cap Programs
Annual Report on Status of Feasibility Studies
Dissemination of Information
"(a)
"(1) Congress plays a central role in identifying, prioritizing, and authorizing vital water resources infrastructure activities throughout the United States.
"(2) The Water Resources Reform and Development Act of 2014 (
"(3) Section 7001 of the Water Resources Reform and Development Act of 2014 (
"(A) publish a notice in the Federal Register that requests from non-Federal interests proposed feasibility studies and proposed modifications to authorized water resources development projects and feasibility studies for inclusion in the report; and
"(B) review the proposals submitted and include in the report those proposed feasibility studies and proposed modifications that meet the criteria for inclusion established under such section 7001.
"(4) Congress will use the information provided in the annual Report to Congress on Future Water Resources Development to determine authorization needs and priorities for purposes of water resources development legislation.
"(5) To ensure that Congress can gain a thorough understanding of the water resources development needs and priorities of the United States, it is important that the Secretary take sufficient steps to ensure that non-Federal interests are made aware of the new annual report process, including the need for non-Federal interests to submit proposals during the Secretary's annual request for proposals in order for such proposals to be eligible for consideration by Congress.
"(b)
"(1)
"(A) develop and disseminate technical assistance materials, seminars, and guidance on the annual process as it relates to non-Federal interests;
"(B) provide written notice to local elected officials and previous and potential non-Federal interests on the annual process and on opportunities to address local water resources challenges through the missions and authorities of the Corps of Engineers;
"(C) issue guidance for non-Federal interests to assist such interests in developing proposals for water resources development projects that satisfy the requirements of such section 7001; and
"(D) provide, at the request of a non-Federal interest, assistance with researching and identifying existing project authorizations and Corps of Engineers decision documents.
"(2)
"(3)
"(A) issue guidance on the uniform implementation by each district of the Corps of Engineers of the process for submitting proposals under section 7001 of the Water Resources Reform and Development Act of 2014 (
"(B) each year, ensure compliance with the guidance issued under subparagraph (A)."
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be preceded by "of".
§2282d–1. Report to Congress on authorized studies and projects
(a) In general
Not later than February 1 of each year, the Secretary shall develop and submit to Congress an annual report, to be entitled "Report to Congress on Authorized Water Resources Development Projects and Studies", that identifies—
(1) ongoing or new feasibility studies, authorized within the previous 20 years, for which a Report of the Chief of Engineers has not been issued;
(2) authorized feasibility studies for projects in the preconstruction, engineering and design phase;
(3) ongoing or new water resources development projects authorized for construction within the previous 20 years; and
(4) authorized and constructed water resources development projects the Secretary has the responsibility to operate or maintain.
(b) Contents
(1) Inclusions
(A) Criteria
The Secretary shall include in each report submitted under this section only a feasibility study or water resources development project—
(i) that has been authorized by Congress to be carried out by the Secretary and does not require any additional congressional authorization to be carried out;
(ii) that the Secretary has the capability to carry out if funds are appropriated for such study or project under any of the "Investigations", "Construction", "Operation and Maintenance", or "Mississippi River and Tributaries" appropriations accounts for the Corps of Engineers; and
(iii) for which a non-Federal interest—
(I) in the case of a study or a project other than a project for which funds may be appropriated for operation and maintenance, has entered into a feasibility cost-sharing agreement, design agreement, or project partnership agreement with the Corps of Engineers, or has informed the Secretary that the non-Federal interest has the financial capability to enter into such an agreement within 1 year; and
(II) demonstrates the legal and financial capability to satisfy the requirements for local cooperation with respect to the study or project.
(B) Description of benefits
(i) Description
The Secretary shall, to the maximum extent practicable, describe in each report submitted under this section the benefits, as described in clause (ii), of each feasibility study and water resources development project included in the report.
(ii) Benefits
The benefits referred to in clause (i) are benefits to—
(I) the protection of human life and property;
(II) improvement to transportation;
(III) the national, regional, or local economy;
(IV) the environment; or
(V) the national security interests of the United States.
(2) Transparency
The Secretary shall include in each report submitted under this section, for each feasibility study and water resources development project included in the report—
(A) the name of the associated non-Federal interest, including the name of any non-Federal interest that has contributed, or is expected to contribute, a non-Federal share of the cost of the study or project;
(B) the purpose of the study or project;
(C) an estimate, to the extent practicable, of the Federal, non-Federal, and total costs of the study or project, including, to the extent practicable, the fully funded capability of the Corps of Engineers for—
(i) the 3 fiscal years following the fiscal year in which the report is submitted, in the case of a feasibility study; and
(ii) the 5 fiscal years following the fiscal year in which the report is submitted, in the case of a water resources development project; and
(D) an estimate, to the extent practicable, of the monetary and nonmonetary benefits of the study or project.
(3) Certification
The Secretary shall include in each report submitted under this section a certification stating that each feasibility study or water resources development project included in the report meets the criteria described in paragraph (1)(A).
(4) Omissions
(A) Limitation
The Secretary shall not omit from a report submitted under this section a study or project that otherwise meets the criteria for inclusion in the report solely on the basis of a policy of the Secretary.
(B) Appendix
If the Secretary omits from a report submitted under this section a study or project that otherwise meets the criteria for inclusion in the report, the Secretary shall include with the report an appendix that lists the name of the study or project and reason for its omission.
(c) Submission to Congress; publication
(1) Submission to Congress
The Secretary may submit a report under this section in conjunction with the submission of the annual report under
(2) Publication
On submission of each report under this section, the Secretary shall make the report publicly available, including through publication on the internet.
(d) Definitions
In this section:
(1) Non-Federal interest
The term "non-Federal interest" has the meaning given that term in
(2) Water resources development project
The term "water resources development project" includes a separable element of a project, a project under an environmental infrastructure assistance program, and a project the authorized purposes of which include water supply.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2282e. Post-authorization change reports
(a) In general
The completion of a post-authorization change report prepared by the Corps of Engineers for a water resources development project—
(1) may not be delayed as a result of consideration being given to changes in policy or priority with respect to project consideration; and
(2) shall be submitted, upon completion, to—
(A) the Committee on Environment and Public Works of the Senate; and
(B) the Committee on Transportation and Infrastructure of the House of Representatives.
(b) Completion review
With respect to a post-authorization change report subject to review by the Secretary, the Secretary shall, not later than 120 days after the date of completion of such report—
(1) review the report; and
(2) provide to Congress any recommendations of the Secretary regarding modification of the applicable water resources development project.
(c) Prior reports
Not later than 120 days after December 16, 2016, with respect to any post-authorization change report that was completed prior to December 16, 2016, and is subject to a review by the Secretary that has yet to be completed, the Secretary shall complete review of, and provide recommendations to Congress with respect to, the report.
(d) Post-authorization change report inclusions
In this section, the term "post-authorization change report" includes—
(1) a general reevaluation report;
(2) a limited reevaluation report; and
(3) any other report that recommends the modification of an authorized water resources development project.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2282f. Review of resiliency assessments
(a) Resiliency assessment
(1) In general
Not later than 180 days after December 27, 2020, and in conjunction with the development of procedures under
(2) Coordination
In carrying out this subsection, the Secretary shall—
(A) coordinate the review with the Engineer Research and Development Center, other Federal and State agencies, and other relevant entities; and
(B) to the maximum extent practicable and where appropriate, utilize data provided to the Secretary by such agencies.
(b) Assessment of benefits from addressing sea level rise and inland flooding resiliency in feasibility reports
(1) In general
Upon the request of a non-Federal interest, in carrying out a feasibility study for a project for flood risk mitigation, hurricane and storm damage risk reduction, or ecosystem restoration under
(2) Addressing sea level rise and inland flooding resiliency benefits
To the maximum extent practicable, in carrying out a study pursuant to paragraph (1), the Secretary shall document the potential effects of sea level rise or inland flooding on the project, and the expected benefits of the project relating to sea level rise or inland flooding, during the 50-year period after the date of completion of the project.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2282g. Scope of feasibility studies
(a) Flood risk management or hurricane and storm damage risk reduction
In carrying out a feasibility study for a project for flood risk management or hurricane and storm damage risk reduction, the Secretary, at the request of the non-Federal interest for the study, shall formulate alternatives to maximize the net benefits from the reduction of the comprehensive flood risk within the geographic scope of the study from the isolated and compound effects of—
(1) a riverine discharge of any magnitude or frequency;
(2) inundation, wave attack, and erosion coinciding with a hurricane or coastal storm;
(3) flooding associated with tidally influenced portions of rivers, bays, and estuaries that are hydrologically connected to the coastal water body;
(4) a rainfall event of any magnitude or frequency;
(5) a tide of any magnitude or frequency;
(6) seasonal variation in water levels;
(7) groundwater emergence;
(8) sea level rise;
(9) subsidence; or
(10) any other driver of flood risk affecting the area within the geographic scope of the study.
(b) Water supply, water conservation, and drought risk reduction
In carrying out a feasibility study for any purpose, the Secretary, at the request of the non-Federal interest for the study, shall formulate alternatives—
(1) to maximize combined net benefits for the primary purpose of the study and for the purposes of water supply or water conservation (including the use of water supply conservation measures described in section 1116 of the Water Resources Development Act of 2016 (
(2) to include 1 or more measures for the purposes of water supply or water conservation if the Secretary determines that such measures may reduce potential adverse impacts of extreme weather events, including drought, on water resources within the geographic scope of the study.
(c) Cost sharing
All costs to carry out a feasibility study in accordance with this section shall be shared in accordance with the cost share requirements otherwise applicable to the study.
(
Editorial Notes
References in Text
Section 1116 of the Water Resources Development Act of 2016, referred to in subsec. (b)(1), is section 1116 of
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2283. Fish and wildlife mitigation
(a) Steps to be taken prior to or concurrently with construction
(1) In the case of any water resources project which is authorized to be constructed by the Secretary before, on, or after November 17, 1986, construction of which has not commenced as of November 17, 1986, and which necessitates the mitigation of fish and wildlife losses, including the acquisition of lands or interests in lands to mitigate losses to fish and wildlife, as a result of such project, such mitigation, including acquisition of the lands or interests—
(A) shall be undertaken or acquired before any construction of the project (other than such acquisition) commences, or
(B) shall be undertaken or acquired concurrently with lands and interests in lands for project purposes (other than mitigation of fish and wildlife losses),
whichever the Secretary determines is appropriate, except that any physical construction required for the purposes of mitigation may be undertaken concurrently with the physical construction of such project.
(2) For the purposes of this subsection, any project authorized before November 17, 1986, on which more than 50 percent of the land needed for the project, exclusive of mitigation lands, has been acquired shall be deemed to have commenced construction under this subsection.
(b) Acquisition of lands or interests in lands for mitigation
(1) After consultation with appropriate Federal and non-Federal agencies, the Secretary is authorized to mitigate damages to fish and wildlife resulting from any water resources project under his jurisdiction, whether completed, under construction, or to be constructed. Such mitigation may include the acquisition of lands, or interests therein, except that—
(A) acquisition under this paragraph shall not be by condemnation in the case of projects completed as of November 17, 1986, or on which at least 10 percent of the physical construction on the project has been completed as of November 17, 1986; and
(B) acquisition of water, or interests therein, under this paragraph, shall not be by condemnation.
The Secretary, shall, under the terms of this paragraph, obligate no more than $30,000,000 in any fiscal year. With respect to any water resources project, the authority under this subsection shall not apply to measures that cost more than $7,500,000 or 10 percent of the cost of the project, whichever is greater.
(2) Whenever, after his review, the Secretary determines that such mitigation features under this subsection are likely to require condemnation under subparagraph (A) or (B) of paragraph (1) of this subsection, the Secretary shall transmit to Congress a report on such proposed modification, together with his recommendations.
(c) Allocation of mitigation costs
Costs incurred after November 17, 1986, including lands, easements, rights-of-way, and relocations, for implementation and operation, maintenance, and rehabilitation to mitigate damages to fish and wildlife shall be allocated among authorized project purposes in accordance with applicable cost allocation procedures, and shall be subject to cost sharing or reimbursement to the same extent as such other project costs are shared or reimbursed, except that when such costs are covered by contracts entered into prior to November 17, 1986, such costs shall not be recovered without the consent of the non-Federal interests or until such contracts are complied with or renegotiated.
(d) Mitigation plans as part of project proposals
(1) In general
After November 17, 1986, the Secretary shall not submit any proposal for the authorization of any water resources project to Congress in any report, and shall not select a project alternative in any report, unless such report contains (A) a recommendation with a specific plan to mitigate for damages to ecological resources, including terrestrial and aquatic resources, and fish and wildlife losses created by such project, or (B) a determination by the Secretary that such project will have negligible adverse impact on ecological resources and fish and wildlife without the implementation of mitigation measures. Specific mitigation plans shall ensure that impacts to bottomland hardwood forests are mitigated in-kind, and other habitat types are mitigated to not less than in-kind conditions, to the extent possible. If the Secretary determines that mitigation to in-kind conditions is not possible, the Secretary shall identify in the report the basis for that determination and the mitigation measures that will be implemented to meet the requirements of this section and the goals of
(2) Selection and design of mitigation projects
The Secretary shall select and design mitigation projects using a watershed approach to reflect contemporary understanding of the science of mitigating the adverse environmental impacts of water resources projects.
(3) Mitigation requirements
(A) In general
To mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from a water resources project, the Secretary shall ensure that the mitigation plan for each water resources project complies with, at a minimum, the mitigation standards and policies established pursuant to the regulatory programs administered by the Secretary.
(B) Inclusions
A specific mitigation plan for a water resources project under paragraph (1) shall include, at a minimum—
(i) a plan for monitoring the implementation and ecological success of each mitigation measure, including the cost and duration of any monitoring, and, to the extent practicable, a designation of the entities that will be responsible for the monitoring;
(ii) the criteria for ecological success by which the mitigation will be evaluated and determined to be successful based on replacement of lost functions and values of the habitat, including hydrologic and vegetative characteristics;
(iii) for projects where mitigation will be carried out by the Secretary—
(I) a description of the land and interest in land to be acquired for the mitigation plan;
(II) the basis for a determination that the land and interests are available for acquisition; and
(III) a determination that the proposed interest sought does not exceed the minimum interest in land necessary to meet the mitigation requirements for the project;
(iv) for projects where mitigation will be carried out through a third party mitigation arrangement in accordance with subsection (i)—
(I) a description of the third party mitigation instrument to be used; and
(II) the basis for a determination that the mitigation instrument can meet the mitigation requirements for the project;
(v) a description of—
(I) the types and amount of restoration activities to be conducted;
(II) the physical action to be undertaken to achieve the mitigation objectives within the watershed in which such losses occur and, in any case in which the mitigation will occur outside the watershed, a detailed explanation for undertaking the mitigation outside the watershed; and
(III) the functions and values that will result from the mitigation plan; and
(vi) a contingency plan for taking corrective actions in cases in which monitoring demonstrates that mitigation measures are not achieving ecological success in accordance with criteria under clause (ii).
(C) Responsibility for monitoring
In any case in which it is not practicable to identify in a mitigation plan for a water resources project the entity responsible for monitoring at the time of a final report of the Chief of Engineers or other final decision document for the project, such entity shall be identified in the partnership agreement entered into with the non-Federal interest under
(4) Determination of success
(A) In general
A mitigation plan under this subsection shall be considered to be successful at the time at which the criteria under paragraph (3)(B)(ii) are achieved under the plan, as determined by monitoring under paragraph (3)(B)(i).
(B) Consultation
In determining whether a mitigation plan is successful under subparagraph (A), the Secretary shall consult annually with appropriate Federal agencies and each State in which the applicable project is located on at least the following:
(i) The ecological success of the mitigation as of the date on which the report is submitted.
(ii) The likelihood that the mitigation will achieve ecological success, as defined in the mitigation plan.
(iii) The projected timeline for achieving that success.
(iv) Any recommendations for improving the likelihood of success.
(5) Monitoring
Mitigation monitoring shall continue until it has been demonstrated that the mitigation has met the ecological success criteria.
(e) First enhancement costs as Federal costs
In those cases when the Secretary, as part of any report to Congress, recommends activities to enhance fish and wildlife resources, the first costs of such enhancement shall be a Federal cost when—
(1) such enhancement provides benefits that are determined to be national, including benefits to species that are identified by the National Marine Fisheries Service as of national economic importance, species that are subject to treaties or international convention to which the United States is a party, and anadromous fish;
(2) such enhancement is designed to benefit species that have been listed as threatened or endangered by the Secretary of the Interior under the terms of the Endangered Species Act, as amended (
(3) such activities are located on lands managed as a national wildlife refuge.
When benefits of enhancement do not qualify under the preceding sentence, 25 percent of such first costs of enhancement shall be provided by non-Federal interests under a schedule of reimbursement determined by the Secretary. Not more than 80 percent of the non-Federal share of such first costs may be satisfied through in-kind contributions, including facilities, supplies, and services that are necessary to carry out the enhancement project. The non-Federal share of operation, maintenance, and rehabilitation of activities to enhance fish and wildlife resources shall be 25 percent.
(f) National benefits from enhancement measures for Atchafalaya Floodway System and Mississippi Delta Region projects
Fish and wildlife enhancement measures carried out as part of the project for Atchafalaya Floodway System, Louisiana, authorized by
(g) Fish and Wildlife Coordination Act supplementation
The provisions of subsections (a), (b), and (d) shall be deemed to supplement the responsibility and authority of the Secretary pursuant to the Fish and Wildlife Coordination Act [
(h) Programmatic mitigation plans
(1) In general
The Secretary may develop programmatic mitigation plans to address the potential impacts to ecological resources, fish, and wildlife associated with existing or future Federal water resources development projects.
(2) Use of mitigation plans
The Secretary shall, to the maximum extent practicable, use programmatic mitigation plans developed in accordance with this subsection to guide the development of a mitigation plan under subsection (d).
(3) Non-Federal plans
The Secretary shall, to the maximum extent practicable and subject to all conditions of this subsection, use programmatic environmental plans developed by a State, a body politic of the State, which derives its powers from a State constitution, a government entity created by State legislation, or a local government, that meet the requirements of this subsection to address the potential environmental impacts of existing or future water resources development projects.
(4) Scope
A programmatic mitigation plan developed by the Secretary or an entity described in paragraph (3) to address potential impacts of existing or future water resources development projects shall, to the maximum extent practicable—
(A) be developed on a regional, ecosystem, watershed, or statewide scale;
(B) include specific goals for aquatic resource and fish and wildlife habitat restoration, establishment, enhancement, or preservation;
(C) identify priority areas for aquatic resource and fish and wildlife habitat protection or restoration;
(D) include measures to protect or restore habitat connectivity;
(E) encompass multiple environmental resources within a defined geographical area or focus on a specific resource, such as aquatic resources or wildlife habitat; and
(F) address impacts from all projects in a defined geographical area or focus on a specific type of project.
(5) Consultation
The scope of the plan shall be determined by the Secretary or an entity described in paragraph (3), as appropriate, in consultation with the agency with jurisdiction over the resources being addressed in the environmental mitigation plan.
(6) Contents
A programmatic environmental mitigation plan may include—
(A) an assessment of the condition of environmental resources in the geographical area covered by the plan, including an assessment of recent trends and any potential threats to those resources;
(B) an assessment of potential opportunities to improve the overall quality of environmental resources in the geographical area covered by the plan through strategic mitigation for impacts of water resources development projects;
(C) standard measures for mitigating certain types of impacts, including impacts to habitat connectivity;
(D) parameters for determining appropriate mitigation for certain types of impacts, such as mitigation ratios or criteria for determining appropriate mitigation sites;
(E) adaptive management procedures, such as protocols that involve monitoring predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring;
(F) acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources; and
(G) any offsetting benefits of self-mitigating projects, such as ecosystem or resource restoration and protection.
(7) Process
Before adopting a programmatic environmental mitigation plan for use under this subsection, the Secretary shall—
(A) for a plan developed by the Secretary—
(i) make a draft of the plan available for review and comment by applicable environmental resource agencies and the public; and
(ii) consider any comments received from those agencies and the public on the draft plan; and
(B) for a plan developed under paragraph (3), determine, not later than 180 days after receiving the plan, whether the plan meets the requirements of paragraphs (4) through (6) and was made available for public comment.
(8) Integration with other plans
A programmatic environmental mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, and land use plans.
(9) Consideration in project development and permitting
If a programmatic environmental mitigation plan has been developed under this subsection, any Federal agency responsible for environmental reviews, permits, or approvals for a water resources development project may use the recommendations in that programmatic environmental mitigation plan when carrying out the responsibilities of the agency under the National Environmental Policy Act of 1969 (
(10) Preservation of existing authorities
Nothing in this subsection limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969 (
(11) Effect
Nothing in this subsection—
(A) requires the Secretary to undertake additional mitigation for existing projects for which mitigation has already been initiated, including the addition of fish passage to an existing water resources development project; or
(B) affects the mitigation responsibilities of the Secretary under any other provision of law.
(i) Third-party mitigation arrangements
(1) Eligible activities
In accordance with all applicable Federal laws (including regulations), mitigation efforts carried out under this section may include—
(A) participation in mitigation banking or other third-party mitigation arrangements, such as—
(i) the purchase of credits from commercial or State, regional, or local agency-sponsored mitigation banks; and
(ii) the purchase of credits from in-lieu fee mitigation programs; and
(B) contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetlands if the Secretary determines that the contributions will ensure that the mitigation requirements of this section and the goals of
(2) Inclusion of other activities
The banks, programs, and efforts described in paragraph (1) include any banks, programs, and efforts developed in accordance with applicable law (including regulations).
(3) Terms and conditions
In carrying out natural habitat and wetlands mitigation efforts under this section, contributions to the mitigation effort may—
(A) take place concurrent with, or in advance of, the commitment of funding to a project; and
(B) occur in advance of project construction only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and water resources development planning processes.
(4) Preference
At the request of the non-Federal project sponsor, preference may be given, to the maximum extent practicable, to mitigating an environmental impact through the use of a mitigation bank, in-lieu fee, or other third-party mitigation arrangement, if the use of credits from the mitigation bank or in-lieu fee, or the other third-party mitigation arrangement for the project has been approved by the applicable Federal agency.
(j) Use of funds
(1) In general
The Secretary, with the consent of the applicable non-Federal interest, may use funds made available for preconstruction engineering and design after authorization of project construction to satisfy mitigation requirements through third-party arrangements or to acquire interests in land necessary for meeting mitigation requirements under this section.
(2) Notification
Prior to the expenditure of any funds for a project pursuant to paragraph (1), the Secretary shall notify the Committee on Appropriations and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Appropriations and the Committee on Environment and Public Works of the Senate.
(k) Measures
The Secretary shall consult with interested members of the public, the Director of the United States Fish and Wildlife Service, the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration, States, including State fish and game departments, and interested local governments to identify standard measures under subsection (h)(6)(C) that reflect the best available scientific information for evaluating habitat connectivity.
(
Editorial Notes
References in Text
The Endangered Species Act, as amended, referred to in subsec. (e)(2), probably means the Endangered Species Act of 1973,
The Flood Control Act of 1965, referred to in subsec. (f), is title II of
The Fish and Wildlife Coordination Act, referred to in subsec. (g), is act Mar. 10, 1934, ch. 55,
The National Environmental Policy Act of 1969, referred to in subsec. (h)(9), (10), is
Amendments
2016—Subsec. (h)(4)(D) to (F).
Subsec. (h)(6)(C).
Subsec. (h)(11).
Subsecs. (j), (k).
2014—Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (d)(3)(A).
Subsec. (d)(3)(B)(iii) to (vi).
Subsecs. (h), (i).
2007—Subsec. (d)(1).
Subsec. (d)(3) to (5).
2000—Subsec. (d).
1999—Subsec. (e).
1992—Subsec. (c).
Statutory Notes and Related Subsidiaries
Applicability
Concurrent Mitigation
§2283a. Status report
(1) In general
Concurrent with the President's submission to Congress of the President's request for appropriations for the Civil Works Program for a fiscal year, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the status of construction of projects that require mitigation under
(2) Projects included
The status report shall include the status of—
(A) all projects that are under construction as of the date of the report;
(B) all projects for which the President requests funding for the next fiscal year; and
(C) all projects that have undergone or completed construction, but have not completed the mitigation required under
(3) Information included
In reporting the status of all projects included in the report, the Secretary shall—
(A) use a uniform methodology for determining the status of all projects included in the report;
(B) use a methodology that describes both a qualitative and quantitative status for all projects in the report; and
(C) provide specific dates for participation in the consultations required under
(4) Availability of information
The Secretary shall make information contained in the status report available to the public, including on the Internet.
(
Editorial Notes
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.
Amendments
2014—Pars. (3), (4).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2283b. Clarification of mitigation authority
(a) In general
The Secretary may carry out measures to improve fish species habitat within the boundaries and downstream of a water resources project constructed by the Secretary that includes a fish hatchery if the Secretary—
(1) has been explicitly authorized to compensate for fish losses associated with the project; and
(2) determines that the measures are—
(A) feasible;
(B) consistent with authorized project purposes and the fish hatchery; and
(C) in the public interest.
(b) Cost sharing
(1) In general
Subject to paragraph (2), the non-Federal interest shall contribute 35 percent of the total cost of carrying out activities under this section, including the costs relating to the provision or acquisition of required land, easements, rights-of-way, dredged material disposal areas, and relocations.
(2) Operation and maintenance
The non-Federal interest shall contribute 100 percent of the costs of operation, maintenance, replacement, repair, and rehabilitation of the measures carried out under this section.
(
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
§2283c. Technical assistance
(1) In general
The Secretary may provide technical assistance to States and local governments to establish third-party mitigation instruments, including mitigation banks and in-lieu fee programs, that will help to target mitigation payments to high-priority ecosystem restoration actions.
(2) Requirements
In providing technical assistance under this section, the Secretary shall give priority to States and local governments that have developed State, regional, or watershed-based plans identifying priority restoration actions.
(3) Mitigation instruments
The Secretary shall seek to ensure any technical assistance provided under this section will support the establishment of mitigation instruments that will result in restoration of high-priority areas identified in the plans under paragraph (2).
(
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
§2284. Benefits and costs attributable to environmental measures
In the evaluation by the Secretary of benefits and costs of a water resources project, the benefits attributable to measures included in a project for the purpose of environmental quality, including improvement of the environment and fish and wildlife enhancement, shall be deemed to be at least equal to the costs of such measures.
(
§2284a. Benefits to navigation
In evaluating potential improvements to navigation and the maintenance of navigation projects, the Secretary shall consider, and include for purposes of project justification, economic benefits generated by cruise ships as commercial navigation benefits.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, 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
§2284b. Scenic and aesthetic considerations
In conducting studies of potential water resources projects, the Secretary shall consider measures to preserve and enhance scenic and aesthetic qualities in the vicinity of such projects.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, 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
§2285. Environmental Protection and Mitigation Fund
There is established an Environmental Protection and Mitigation Fund. There is authorized to be appropriated to such fund $35,000,000 for fiscal years beginning after September 30, 1986. Amounts in the fund 1 shall be available for undertaking, in advance of construction of any water resources project authorized to be constructed by the Secretary, such measures authorized as part of such project, including the acquisition of lands and interests therein, as may be necessary to ensure that project-induced losses to fish and wildlife production and habitat will be mitigated. The Secretary shall reimburse the Fund for any amounts expended under this section for a water resources project from the first appropriations made for construction, including planning and designing, of such project.
(
1 So in original. Probably should be capitalized.
§2286. Acceptance of certain funds for mitigation
The Secretary is authorized to accept funds from any entity, public or private, in accordance with the Pacific Northwest Electric Power Planning and Conservation Act [
(
Editorial Notes
References in Text
The Pacific Northwest Electric Power Planning and Conservation Act, referred to in text, is
§2287. Continued planning and investigations
(a) Pre-authorization planning and engineering
After the Chief of Engineers transmits his recommendations for a water resources development project to the Secretary for transmittal to the Congress, as authorized in
(b) Omitted
(c) Authorizations as additions to other authorizations
The authorization made by this section shall be in addition to any other authorizations for planning, engineering, and design of water resources development projects and shall not be construed as a limitation on any other such authorization.
(
Editorial Notes
Codification
Subsec. (b) of this section, which required the Secretary to prepare and transmit an annual report to certain committees of Congress on activities undertaken under this section, terminated, effective May 15, 2000, pursuant to section 3003 of
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2288. Repealed. Pub. L. 113–121, title I, §1004, June 10, 2014, 128 Stat. 1199
Section,
§2289. Urban and rural flood control frequency
In the preparation of feasibility reports for projects for flood damage prevention in urban and rural areas, the Secretary may consider and evaluate measures to reduce or eliminate damages from flooding without regard to frequency of flooding, drainage area, and amount of runoff. This section shall apply with respect to any project, or separable element thereof, the Federal share of the cost of which is less than $3,000,000.
(
§2289a. Consideration of measures
(a) Definitions
In this section, the following definitions apply:
(1) Natural feature
The term "natural feature" means a feature that is created through the action of physical, geological, biological, and chemical processes over time.
(2) Nature-based feature
The term "nature-based feature" means a feature that is created by human design, engineering, and construction to provide risk reduction by acting in concert with natural processes.
(b) Requirement
In studying the feasibility of projects for flood risk management, hurricane and storm damage reduction, and ecosystem restoration the Secretary shall, with the consent of the non-Federal sponsor of the feasibility study, consider, as appropriate—
(1) natural features;
(2) nature-based features;
(3) nonstructural measures; and
(4) structural measures.
(c) Report to Congress
(1) In general
Not later than February 1, 2020, and 5 and 10 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 a report on the implementation of subsection (b).
(2) Contents
The report under paragraph (1) shall include, at a minimum, the following:
(A) A description of guidance or instructions issued, and other measures taken, by the Secretary and the Chief of Engineers to implement subsection (b).
(B) An assessment of the costs, benefits, impacts, and trade-offs associated with measures recommended by the Secretary for coastal risk reduction and the effectiveness of those measures.
(C) A description of any statutory, fiscal, or regulatory barriers to the appropriate consideration and use of a full array of measures for coastal risk reduction.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2018—Subsec. (a)(2).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 1002 of
§2290. Flood control in Trust Territory of the Pacific Islands
The Secretary is authorized to use the authority contained in section 205 of the Flood Control Act of 1948 (
(
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2291. Federal Project Repayment District
(a) The Secretary may enter into a contract providing for the payment or recovery of an appropriate share of the costs of a project under his responsibility with a Federal Project Repayment District or other political subdivision of a State prior to the construction, operation, improvement, or financing of such project. The Federal Project Repayment District shall include lands and improvements which receive identifiable benefits from the construction or operation of such project. Such districts shall be established in accordance with State law, shall have specific boundaries which may be changed from time to time based upon further evaluations of benefits, and shall have the power to recover benefits through any cost-recovery approach that is consistent with State law and satisfies the applicable cost-recovery requirement under subsection (b).
(b) Prior to execution of an agreement pursuant to subsection (a) of this section, the Secretary shall require and approve a study from the State or political subdivision demonstrating that the revenues to be derived from a contract under this section, or an agreement with a Federal Project Repayment District, will be sufficient to equal or exceed the cost recovery requirements over the term of repayment required by Federal law.
(
Editorial Notes
Amendments
1988—Subsec. (a).
§2292. Surveying and mapping
Any surveying or mapping services to be performed in connection with a water resources project which is or has been authorized to be undertaken by the Secretary shall be procured in accordance with title IX of the Federal Property and Administrative Services Act of 1949.1
(
Editorial Notes
References in Text
The Federal Property and Administrative Services Act of 1949, referred to in text, is act June 30, 1949, ch. 288,
Statutory Notes and Related Subsidiaries
Geomatic Data
"(a)
"(b)
"(c)
"(1) requires the Secretary to accept information that the Secretary determines does not meet the guidance developed under this section; or
"(2) changes the current statutory or regulatory requirements of the Corps of Engineers."
1 See References in Text note below.
§2293. Reprogramming during national emergencies
(a) Termination or deferment of civil works projects; application of resources to national defense projects
In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [
(b) Termination of state of war or national emergency
The Secretary shall immediately notify the appropriate committees of Congress of any actions taken pursuant to the authorities provided by this section, and cease to exercise such authorities not later than 180 calendar days after the termination of the state of war or national emergency, whichever occurs later.
(
Editorial Notes
References in Text
The National Emergencies Act, referred to in subsec. (a), is
§2293a. Reprogramming of funds for projects by Corps of Engineers
None of the funds made available before, on, or after June 15, 2006, in an appropriations Act may be expended to prevent or limit any reprogramming of funds for a project to be carried out by the Corps of Engineers using funds appropriated in any Act making appropriations for energy and water development, based on whether the project was included by the President in the budget transmitted under
(
Editorial Notes
Codification
Section was enacted as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2294. Office of Environmental Policy
The Secretary shall establish in the Directorate of Civil Works of the Office of the Chief of Engineers an Office of Environmental Policy. Such Office shall be responsible for the formulation, coordination, and implementation of all matters concerning environmental quality and policy as they relate to the water resources program of the United States Army Corps of Engineers. Such Office shall, among other things, develop, and monitor compliance with, guidelines for the consideration of environmental quality in formulation and planning of water resources projects carried out by the Secretary, the preparation and coordination of environmental impact statements for such projects, and the coordination with Federal, State, and local agencies of environmental aspects of such projects and regulatory responsibilities of the Secretary.
(
§2295. Compilation of laws; annual reports
(a) Federal laws relating to improvements of rivers and harbors, flood control, beach erosion, and other water resources development
Within one year after November 17, 1986, the laws of the United States relating to the improvement of rivers and harbors, flood control, beach erosion, and other water resources development enacted after November 8, 1966, and before January 1, 1987, shall be compiled under the direction of the Secretary and the Chief of Engineers and printed for the use of the Department of the Army, the Congress, and the general public. The Secretary shall reprint the volumes containing such laws enacted before November 8, 1966. In addition, the Secretary shall include an index in each volume so compiled or reprinted. The Secretary shall transmit copies of each such volume to Congress.
(b) Annual report
The Secretary shall prepare and submit the annual report required by
(c) Biennial reports for each State
The Secretary shall prepare biennially for public information a report for each State containing a description of each water resources project under the jurisdiction of the Secretary in such State and the status of each such project. Each report shall include an index. The report for each State shall be prepared in a separate volume. The reports under this subsection shall be published at the same time and the first such reports shall be published not later than one year after November 17, 1986.
(
Statutory Notes and Related Subsidiaries
Compilation of Laws
"(a)
"(b)
"(c)
"(d)
"(e)
§2295a. Policy and technical standards
Every 5 years, the Secretary shall revise, rescind, or certify as current, as applicable, each policy and technical standards publication for the civil works programs of the Corps of Engineers, including each engineer regulation, engineer circular, engineer manual, engineer pamphlet, engineer technical letter, planning guidance letter, policy guidance letter, planning bulletin, and engineering and construction bulletin.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2296. Acquisition of recreation lands
(a) In the case of any water resources project which is authorized to be constructed by the Secretary before, on, or after November 17, 1986, construction of which has not commenced before November 17, 1986, and which involves the acquisition of lands or interests in lands for recreation purposes, such lands or interests shall be acquired along with the acquisition of lands and interests in lands for other project purposes.
(b) The Secretary is authorized to acquire real property by condemnation, purchase, donation, exchange, or otherwise, as a part of any water resources development project for use for public park and recreation purposes, including but not limited to, real property not contiguous to the principal part of the project.
(
§2297. Operation and maintenance on recreation lands
The Secretary shall not require, under
(
Editorial Notes
References in Text
The Federal Water Project Recreation Act, referred to in text, is
§2298. Impact of proposed projects on existing recreation facilities
Any report describing a project having recreation benefits that is submitted after November 17, 1986, to the Committee on Environment and Public Works of the Senate or the Committee on Public Works and Transportation of the House of Representatives by the Secretary, or by the Secretary of Agriculture under authority of the Watershed Protection and Flood Protection Act (
(
Editorial Notes
References in Text
The Watershed Protection and Flood Prevention Act, referred to in text, is act Aug. 4, 1954, ch. 656,
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2299. Acquisition of beach fill
Notwithstanding any other provision of law, in any case in which the use of fill material for beach erosion and beach nourishment is authorized as a purpose of an authorized water resources project, the Secretary is authorized to acquire by purchase, exchange, or otherwise from nondomestic sources and utilize such material for such purposes if such materials are not available from domestic sources for environmental or economic reasons.
(
§2300. Study of Corps capabilities
The Secretary shall study and evaluate the measures necessary to increase the capabilities of the United States Army Corps of Engineers to undertake the planning and construction of water resources projects on an expedited basis and to adequately comply with all requirements of law applicable to the water resources program of the Corps of Engineers. As part of such study the Secretary shall consider appropriate measures to increase reliance on the private sector in the conduct of the water resources program of the Corps of Engineers. The Secretary shall implement such measures as may be necessary to improve the capabilities referred to in the first sentence of this section, including the establishment of increased levels of personnel, changes in project planning and construction procedures designed to lessen the time required for such planning and construction, and procedures for expediting the coordination of water resources projects with Federal, State, and local agencies.
(
Statutory Notes and Related Subsidiaries
GAO Review of Civil Works Program
§§2301, 2302. Omitted
Editorial Notes
Codification
Section 2301,
Subsec. (a) of section 2302,
Subsec. (b) of section 2302,
§2303. Historical properties
The Secretary is authorized to preserve, restore, and maintain those historic properties located on water resource development project lands under the jurisdiction of the Department of the Army if such properties have been entered into the National Register of Historic Places.
(
§2304. Separability
If any provision of this Act, or the application of any provision of this Act to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this Act, shall not be affected thereby.
(
Editorial Notes
References in Text
This Act, referred to in text, is
§2305. Use of FMHA funds
Notwithstanding any other provision of law, Federal assistance made available by the Farmers Home Administration may be used to pay the non-Federal share of any other Federal grant-in-aid program for any project for water resources, including water pollution control.
(
§2306. Reports
If any report required to be transmitted under this Act to the Committee on Public Works and Transportation of the House of Representatives or the Committee on Environment and Public Works of the Senate pertains in whole or in part to fish and wildlife mitigation, benthic environmental repercussions, or ecosystem mitigation, the Federal officer required to prepare or transmit that report also shall transmit a copy of the report to the Committee on Merchant Marine and Fisheries of the House of Representatives.
(
Editorial Notes
References in Text
This Act, referred to in text, is
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
Abolition of House Committee on Merchant Marine and Fisheries
Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of
§2307. Control of ice
(a) Program authority
The Secretary shall undertake a program of research for the control of ice, and to assist communities in breaking up ice, which otherwise is likely to cause or aggravate flood damage or severe streambank erosion.
(b) Assistance to units of local government
The Secretary is further authorized to provide technical assistance to units of local government to implement local plans to control or break up such ice. As part of such authority, the Secretary shall acquire necessary ice-control or ice-breaking equipment, which shall be loaned to units of local government together with operating assistance, where appropriate.
(c) Authorization of appropriations
There is authorized to be appropriated $5,000,000 per fiscal year for each of the fiscal years 1988, 1989, 1990, 1991, and 1992 for purposes of carrying out subsections (a) and (b) of this section, such sums to remain available until expended.
(d) Hardwick, Vermont, demonstration program
To implement further the purposes of this section, the Secretary, in consultation and cooperation with local officials, is authorized and directed to undertake a demonstration program for the control of ice at Hardwick, Vermont. The work authorized by this subsection shall be designed to minimize the danger of flooding due to ice problems in the vicinity of such community. In the design, construction, and location of ice-control structures for this project, full consideration will be given to the recreational, scenic, and environmental values of the reach of river affected by the project, in order to minimize project impacts on these values. Full opportunity shall be given to interested environmental and recreational organizations to participate in such planning. There is authorized to be appropriated $900,000 for fiscal years beginning after September 30, 1986, for the purposes of carrying out this subsection, such sum to remain available until expended.
(e) Salmon, Idaho, experimental program
(1) The Secretary is directed to complete an experimental program placing screens in the Salmon River in the vicinity of Salmon, Idaho, to trap frazil ice, and thus to eliminate flooding caused by ice dams in the river. Within one year of November 17, 1986, the Secretary shall report to the Congress on the feasibility of such experiment, including consideration of any adverse environmental or social effects that could result from such experiment. If, in the Secretary's judgment, such experiment is not feasible or acceptable, the Secretary is authorized to consult with local public interests to develop a plan that is workable and practical, and then to submit such plan to Congress.
(2) There is authorized to be appropriated $1,000,000 for fiscal years beginning after September 30, 1986, for purposes of carrying out this subsection, such sum to remain available until expended.
(f) Wilmington, Illinois, project
(1) To implement further the purposes of this section, the Secretary shall carry out a project for the control of ice on the Kankakee River in the vicinity of Wilmington, Illinois. The Secretary shall report to Congress not later than one year after November 17, 1986, and annually thereafter on the effectiveness of the program under this section with respect to the Kankakee River in the vicinity of Wilmington, Illinois.
(2) There is authorized to be appropriated $3,000,000 for fiscal years beginning after September 30, 1986, for purposes of carrying out this subsection, such sum to remain available until expended.
(g) Cost sharing
Cost sharing applicable to flood control projects under
(h) Report to Congress
Not later than March 1, 1989, the Secretary shall report to the Congress on activities under this section.
(
Statutory Notes and Related Subsidiaries
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (f)(1) of this section relating to the requirement that the Secretary report annually to Congress on the effectiveness of the program under this section, see section 3003 of
§2308. Campgrounds for senior citizens
(a) Establishment and development
The Secretary may establish and develop separate campgrounds for individuals sixty-two years of age or older at any lake or reservoir under the jurisdiction of the Secretary where camping is permitted.
(b) Control of campground use and access
The Secretary may prescribe regulations to control the use of and the access to any separate campground established and developed under subsection (a) of this section.
(c) Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary for fiscal years beginning after September 30, 1986, to carry out subsection (a) of this section.
(d) Campground at Sam Rayburn Dam and Reservoir, Texas
The Secretary shall establish and develop the parcel of land (located in the State of Texas at the Sam Rayburn Dam and Reservoir) described in subsection (g) of this section as a separate campground for individuals sixty-two years of age or older.
(e) Control of use and access to campground at Sam Rayburn Dam and Reservoir, Texas
The Secretary shall prescribe regulations to control the use of and the access to the separate campground established and developed pursuant to subsection (d) of this section.
(f) Authorization of appropriations
There are authorized to be appropriated for fiscal years beginning after September 30, 1986, $600,000 to carry out subsection (d) of this section.
(g) Boundaries of campground at Sam Rayburn Dam and Reservoir, Texas
The parcel of land to be established and developed as a separate campground pursuant to subsection (d) of this section is a tract of land of approximately 50 acres which is located in the county of Angelina in the State of Texas and which is part of the Thomas Hanks survey. The boundary of the parcel begins at a point at the corner furthest west of tract numbered 3420 of the Sam Rayburn Dam and Reservoir:
thence north 81 degrees 30 minutes east, approximately 2,800 feet to a point at the edge of the water;
thence south along the edge of the water approximately 2,600 feet;
thence north 80 degrees 30 minutes west, approximately 1,960 feet to a point at the reentrant corner of tract numbered 3419 of the Sam Rayburn Dam and Reservoir;
thence along the boundary line of tract numbered 3419 north 46 degrees 15 minutes west, 220 feet to a point at the center line of a road at the corner common to tract numbered 3419 and tract numbered 3420;
thence along the southwestern boundary line of tract numbered 3420 north 46 degrees 15 minutes west, 230 feet to a point at the corner furthest east of tract numbered 3424 of the Sam Rayburn Dam and Reservoir;
thence along the boundary line of tract numbered 3424 south 32 degrees 4 minutes west, 420 feet to a point;
thence along the boundary line of tract numbered 3424 north 28 degrees 34 minutes west, 170 feet to a point;
thence along the boundary line of tract numbered 3424 north 38 degrees 15 minutes east, 248 feet to a point;
thence along the boundary line of tract numbered 3424 north 32 degrees 44 minutes east, 120 feet to a point at the corner furthest north of tract numbered 3424;
thence along the southwestern boundary line of tract numbered 3420 north 46 degrees 15 minutes west, 460 feet to the beginning point.
(
§2309. Great Lakes Commodities Marketing Board
(a) Congressional declaration of purpose
To ensure the coordinated economic revitalization and environmental enhancement of the Great Lakes and their connecting channels and the Saint Lawrence Seaway (hereinafter in this section referred to as the "Great Lakes"), known as the "Fourth Seacoast" of the United States, it is hereby declared to be the intent of Congress to recognize the importance of the economic vitality of the Great Lakes region, the importance of exports from the region in the United States balance of trade, and the need to assure an environmentally and socially responsible navigation system for the Great Lakes. Congress finds that the Great Lakes provide a diversity of agricultural, commercial, environmental, recreational, and related opportunities based on their extensive water resources and water transportation systems.
(b) Establishment; strategy development; composition of Board; Director; report; termination
(1) There is hereby established a Board to be known as the Great Lakes Commodities Marketing Board (hereinafter in this subsection referred to as the "Board").
(2)(A) The Board shall develop a strategy to improve the capacity of the Great Lakes region to produce, market, and transport commodities in a timely manner and to maximize the efficiency and benefits of marketing products produced in the Great Lakes region and products shipped through the Great Lakes.
(B) The strategy shall address, among other things, environmental issues relating to transportation on the Great Lakes and marketing difficulties experienced due to late harvest seasons in the Great Lakes region. The strategy shall include, as appropriate alternative storage, sales, marketing, multimodal transportation systems, and other systems, to assure optimal economic benefits to the region from agricultural and other commercial activities. The strategy shall develop—
(i) methods to improve and promote both bulk and general cargo trade through Great Lakes ports;
(ii) methods to accelerate the movement of grains and other agricultural commodities through the Great Lakes;
(iii) methods to provide needed flexibility to farmers in the Great Lakes region to market grains and other agricultural commodities; and
(iv) methods and materials to promote trade from the Great Lakes region and through Great Lakes ports, particularly with European, Mediterranean, African, Caribbean, Central American, and South American nations.
(C) In developing the strategy, the Board shall conduct and consider the results of—
(i) an analysis of the feasibility and costs of using iron ore vessels, which are not being utilized, to move grain and other agricultural commodities on the Great Lakes;
(ii) an economic analysis of transshipping such commodities through Montreal, Canada, and other ports;
(iii) an analysis of the economic feasibility of storing such commodities during the non-navigation season of the Great Lakes and the feasibility of and need for construction of new storage facilities for such commodities;
(iv) an analysis of the constraints on the flexibility of farmers in the Great Lakes region to market grains and other agricultural commodities, including harvest dates for such commodities and the availability of transport and storage facilities for such commodities; and
(v) an analysis of the amount of grain and other agricultural commodities produced in the United States which are being diverted to Canada by rail but which could be shipped on the Great Lakes if vessels were available for shipping such products during the navigation season.
(D) In developing the strategy, the Board shall consider weather problems and related costs and marketing problems resulting from the late harvest of agricultural commodities (including wheat and sunflower seeds) in the Great Lakes region.
(E) In developing the strategy, the Board shall consult United States ports on the Great Lakes and their users, including farm organizations (such as wheat growers and soybean growers), port authorities, water carrier organizations, and other interested persons.
(3) The Board shall be composed of seven members as follows:
(A) the chairman of the Great Lakes Commission or his or her delegate,
(B) the Secretary or his or her delegate,
(C) the Secretary of Transportation or his or her delegate,
(D) the Secretary of Commerce or his or her delegate,
(E) the Administrator of the Great Lakes St. Lawrence Seaway Development Corporation or his or her delegate,
(F) the Secretary of Agriculture or his or her delegate, and
(G) the Administrator of the Environmental Protection Agency or his or her delegate.
(4)(A) Members of the Board shall serve for the life of the Board.
(B) Members of the Board shall serve without pay and those members who are full time officers or employees of the United States shall receive no additional pay by reason of their service on the Board, except that members of the Board shall be allowed travel or transportation expenses under subchapter I of
(C) Four members of the Board shall constitute a quorum but a lesser number may hold hearings.
(D) The co-chairmen of the Board shall be the Secretary or his or her delegate and the Administrator of the Great Lakes St. Lawrence Seaway Development Corporation or his or her delegate.
(E) The Board shall meet at the call of the co-chairmen or a majority of its members.
(5)(A) The Board shall, without regard to section 5311(b) 1 of title 5, have a Director, who shall be appointed by the Board and shall be paid at a rate which the Board considers appropriate.
(B) Subject to such rules as may be prescribed by the Board, without regard to 5311(b) 1 of title 5, the Board may appoint and fix the pay of such additional personnel as the Board considers appropriate.
(C) Upon request of the Board, the head of any Federal agency is authorized to detail, on a reimbursable basis, any of the personnel of such agency to the Board to assist the Board in carrying out its duties under this subsection.
(6)(A) The Board may, for purposes of carrying out this subsection, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Board considers appropriate.
(B) Any member or agent of the Board may, if so authorized by the Board, take any action which the Board is authorized to take by this paragraph.
(C) The Board may secure directly from any department or agency of the United States any information necessary to enable it to carry out this subsection. Upon request of the co-chairmen of the Board, the head of such department or agency shall furnish such information to the Board.
(D) The Board may use the United States mail in the same manner and under the same conditions as other departments and agencies of the United States.
(E) The Administrator of General Services shall provide to the Board on a reimbursable basis such administrative support services as the Board may request.
(7) Not later than September 30, 1989, the Board shall transmit to the President and to each House of the Congress a report stating the strategy developed under this subsection and the results of each analysis conducted under this subsection. Such report shall contain a detailed statement of the findings and conclusions of the Board together with its recommendations for such legislative and administrative actions as it considers appropriate to carry out such strategy and to assure maximum economic benefits to the users of the Great Lakes and to the Great Lakes region.
(8) The Board shall cease to exist 180 days after submitting its report pursuant to this subsection.
(9) The non-Federal share of the cost of carrying out this subsection shall be 25 percent. There is authorized to be appropriated such sums as may be necessary to carry out the Federal share of this subsection for fiscal years beginning after September 30, 1986, and ending before October 1, 1990.
(c) International advisory group
(1) The President shall invite the Government of Canada to join in the formation of an international advisory group whose duty it shall be (A) to develop a bilateral program for improving navigation, through a coordinated strategy, on the Great Lakes, and (B) to conduct investigations on a continuing basis and make recommendations for a system-wide navigation improvement program to facilitate optimum use of the Great Lakes. The advisory group shall be composed of five members representing the United States, five members representing Canada, and two members from the International Joint Commission established by the treaty between the United States and Great Britain relating to boundary waters between the United States and Canada, signed at Washington, January 11, 1909 (
(2) The United States representatives to the international advisory group shall serve without pay and the United States representatives to the advisory group who are full time officers or employees of the United States shall receive no additional pay by reason of their service on the advisory group, except that the United States representatives shall be allowed travel or transportation expenses under subchapter I of
(3) The international advisory group established by this subsection shall report to Congress and to the Canadian Parliament on its progress in carrying out the duties set forth in this subsection not later than one year after the formation of such group and biennially thereafter.
(d) Review of environmental, economic, and social impacts of navigation in United States portion of Great Lakes
The Secretary and the Administrator of the Environmental Protection Agency, in cooperation with the Secretary of the Interior, the Administrator of the National Oceanic and Atmospheric Administration, and other appropriate Federal and non-Federal entities, shall carry out a review of the environmental, economic, and social impacts of navigation in the United States portion of the Great Lakes. In carrying out such review, the Secretary and the Administrator shall use existing research, studies, and investigations relating to such impacts to the maximum extent possible. Special emphasis shall be made in such review of the impacts of navigation on the shoreline and on fish and wildlife habitat, including, but not limited to, impacts associated with resuspension of bottom sediment. The Secretary and the Administrator shall submit to Congress an interim report of such review not later than September 30, 1988, and a final report of such review along with recommendations not later than September 30, 1990.
(
Editorial Notes
References in Text
Amendments
2020—Subsec. (b)(3)(E), (4)(D).
Statutory Notes and Related Subsidiaries
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (c)(3) of this section relating to the requirement that the international advisory group report biennially to Congress, see section 3003 of
1 See References in Text note below.
§2309a. Project modifications for improvement of environment
(a) Determination of need
The Secretary is authorized to review water resources projects constructed by the Secretary to determine the need for modifications in the structures and operations of such projects for the purpose of improving the quality of the environment in the public interest and to determine if the operation of such projects has contributed to the degradation of the quality of the environment.
(b) Authority to make modifications
The Secretary is authorized to carry out a program for the purpose of making such modifications in the structures and operations of water resources projects constructed by the Secretary which the Secretary determines (1) are feasible and consistent with the authorized project purposes, and (2) will improve the quality of the environment in the public interest.
(c) Restoration of environmental quality
(1) In general
If the Secretary determines that construction of a water resources project by the Secretary or operation of a water resources project constructed by the Secretary has contributed to the degradation of the quality of the environment, the Secretary may undertake measures for restoration of environmental quality and measures for enhancement of environmental quality that are associated with the restoration, through modifications either at the project site or at other locations that have been affected by the construction or operation of the project, if such measures do not conflict with the authorized project purposes.
(2) Control of sea lamprey
Congress finds that—
(A) the Great Lakes navigation system has been instrumental in the spread of sea lamprey and the associated impacts on its fishery; and
(B) the use of the authority under this subsection for control of sea lamprey at any Great Lakes basin location is appropriate.
(d) Non-Federal share; limitation on maximum Federal expenditure
The non-Federal share of the cost of any modifications or measures carried out or undertaken pursuant to subsection (b) or (c) shall be 25 percent. The non-Federal share may be provided in kind, including a facility, supply, or service that is necessary to carry out the modification or measure. Not more than $10,000,000 in Federal funds may be expended on any single modification or measure carried out or undertaken pursuant to this section.
(e) Coordination of actions
The Secretary shall coordinate any actions taken pursuant to this section with appropriate Federal, State, and local agencies.
(f) Omitted
(g) Nonprofit entities
Notwithstanding
(h) Authorization of appropriations
There is authorized to be appropriated not to exceed $50,000,000 annually to carry out this section.
(i) Definition
In this section, the term "water resources project constructed by the Secretary" includes a water resources project constructed or funded jointly by the Secretary and the head of any other Federal agency (including the Natural Resources Conservation Service).
(
Editorial Notes
Codification
Subsec. (f) of this section, which required the Secretary to transmit biennial reports to Congress on the results of reviews conducted under subsec. (a) of this section and on the programs conducted under subsecs. (b) and (c) of this section, terminated, effective May 15, 2000, pursuant to section 3003 of
Section was formerly set out as a note under
Amendments
2018—Subsec. (h).
2014—Subsec. (d).
2007—Subsec. (h).
2000—Subsecs. (g) to (i).
1999—Subsec. (c).
1996—Subsec. (a).
Subsec. (b).
Subsecs. (c), (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1992—Subsec. (b).
Subsec. (e).
1990—Subsec. (a).
Subsec. (b).
Subsec. (d).
Subsec. (e).
1988—Subsec. (b).
Subsec. (d).
§2310. Cost sharing for Territories and Indian tribes
(a) In general
The Secretary shall waive local cost-sharing requirements up to $200,000 for all studies and projects—
(1) in American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, Puerto Rico, and the Trust Territory of the Pacific Islands;
(2) for any Indian tribe or tribal organization (as those terms are defined in
(3) for any organization that—
(A) is composed primarily of people who are—
(i) recognized and defined under Federal law as indigenous people of the United States; and
(ii) from a specific community; and
(B) assists in the social, cultural, and educational development of such people in that community.
(b) Inflation adjustment
The Secretary shall adjust the dollar amount specified in subsection (a) on an annual basis for inflation.
(c) Inclusion
For purposes of this section, the term "study" includes a watershed assessment.
(d) Application
The Secretary shall apply the waiver amount described in subsection (a) to reduce only the non-Federal share of study and project costs.
(
Editorial Notes
Amendments
2022—Subsec. (a)(3).
Subsecs. (c), (d).
2020—Subsec. (b).
2018—Subsec. (a)(2).
Subsec. (b).
2016—
Subsec. (a).
2014—
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2311. Report to Congress covering proposals for water impoundment facilities
Any report that is submitted to the Committee on Environment and Public Works of the Senate or the Committee on Public Works and Transportation of the House of Representatives by the Secretary, or the Secretary of Agriculture acting under
(
Editorial Notes
References in Text
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2312. Comments on certain changes in operations of reservoirs
Before the Secretary may make changes in the operation of any reservoir which will result in or require a reallocation of storage space in such reservoir or will significantly affect any project purpose, the Secretary shall provide an opportunity for public review and comment.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1988, 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
§2313. Research and development
(a) In general
The Secretary is authorized to carry out basic, applied, and advanced research activities as required to aid in the planning, design, construction, operation, and maintenance of water resources development projects and to support the missions and authorities of the Corps of Engineers.
(b) Testing and application
In carrying out subsection (a), the Secretary is authorized to test and apply technology, tools, techniques, and materials developed pursuant to such subsection, including the testing and application of such technology, tools, techniques, and materials at authorized water resources development projects, in consultation with the non-Federal interests for such projects.
(c) Other transactional authority for prototype projects
(1) In general
In carrying out subsection (b), the Secretary is authorized to enter into transactions (other than contracts, cooperative agreements, or grants) to carry out prototype projects to support basic, applied, and advanced research activities that are directly relevant to the civil works missions and authorities of the Corps of Engineers.
(2) Follow-on production transactions
A transaction entered into under paragraph (1) for a prototype project may provide for the award of a follow-on production contract or transaction to the participants in the transaction in accordance with the requirements of
(3) Guidance
Prior to entering into the first transaction under this subsection, the Secretary shall issue guidance for entering into transactions under this subsection (including guidance for follow-on production contracts or transactions under paragraph (2)).
(4) Conditions
In carrying out this subsection, the Secretary shall ensure that—
(A) competitive procedures are used to the maximum extent practicable to award each transaction; and
(B) at least one of the following conditions is met with respect to each transaction:
(i) The prototype project includes significant participation by at least one nonprofit research institution or nontraditional defense contractor, as that term is defined in
(ii) All significant participants in the transaction other than the Federal Government are small business concerns, as that term is used in
(iii) At least one-third of the total cost of the prototype project is to be paid out of funds provided by sources other than the Federal Government.
(iv) The Head of the Contracting Activity for the Corps of Engineers submits to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a notification that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract, cooperative agreement, or grant.
(5) Notification
Not later than 30 days before the Secretary enters into a transaction under paragraph (1), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate of—
(A) the dollar amount of the transaction;
(B) the entity carrying out the prototype project that is the subject of the transaction;
(C) the justification for the transaction; and
(D) as applicable, the water resources development project where the prototype project will be carried out.
(6) Report
Not later than 4 years after December 23, 2022, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report describing the use of the authority under this subsection.
(7) Comptroller General access to information
(A) Examination of records
Each transaction entered into under this subsection shall provide for mandatory examination by the Comptroller General of the United States of the records of any party to the transaction or any entity that participates in the performance of the transaction.
(B) Limitations
(i) Parties and entities
Examination of records by the Comptroller General pursuant to subparagraph (A) shall be limited as provided under clause (ii) in the case of a party to the transaction, an entity that participates in the performance of the transaction, or a subordinate element of that party or entity if the only transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that transaction were entered into under paragraph (1) or under
(ii) Records
The only records of a party, other entity, or subordinate element referred to in clause (i) that the Comptroller General may examine pursuant to subparagraph (A) are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous transactions referred to in such clause that were entered into by that particular party, entity, or subordinate element.
(C) Waiver
The Head of the Contracting Activity for the Corps of Engineers may waive the applicability of subparagraph (A) to a transaction if the Head of the Contracting Activity for the Corps of Engineers—
(i) determines that it would not be in the public interest to apply the requirement to the transaction; and
(ii) transmits to the Committee on Environment and Public Works of the Senate, the Committee on Transportation and Infrastructure of the House of Representatives, and the Comptroller General, before the transaction is entered into, a notification of the waiver, including the rationale for the determination under clause (i).
(D) Timing
The Comptroller General may not examine records pursuant to subparagraph (A) more than 3 years after the final payment is made by the United States under the transaction.
(E) Report
Not later than 1 year after December 23, 2022, and annually thereafter, the Comptroller General 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 on the use of the authority under this paragraph.
(8) Termination of authority
The authority to enter into a transaction under this subsection shall terminate on December 31, 2028.
(d) Coordination and consultation
In carrying out this section, the Secretary may coordinate and consult with Federal agencies, State and local agencies, Indian Tribes, universities, consortiums, councils, and other relevant entities that will aid in the planning, design, construction, operation, and maintenance of water resources development projects.
(e) Annual report
(1) In general
For fiscal year 2025, and annually thereafter, in conjunction with the annual budget submission of the President to Congress under
(2) Contents
Each report under paragraph (1) shall include—
(A) a description of each ongoing and new activity or project, including—
(i) the estimated total cost of the activity or project;
(ii) the amount of Federal expenditures for the activity or project;
(iii) the amounts provided by a non-Federal party to a transaction described in subsection (c), if applicable;
(iv) the estimated timeline for completion of the activity or project;
(v) the requesting district of the Corps of Engineers, if applicable; and
(vi) how the activity or project is consistent with subsection (a); and
(B) any additional information that the Secretary determines to be appropriate.
(f) Savings clause
Nothing in this section affects the authority of the Secretary to carry out, through the Engineer Research and Development Center, any activity requested by a district of the Corps of Engineers in support of a water resources development project or feasibility study (as defined in
(g) Establishment of account
The Secretary, in consultation with the Director of the Office of Management and Budget, shall establish a separate appropriations account for administering funds made available to carry out this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1988, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—
1996—Subsec. (a).
Subsecs. (b), (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Statutory Notes and Related Subsidiaries
Magnetic Levitation Technology
"(a)
"(b)
"(c)
"(d)
"(e)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2313a. Engineering and environmental innovations of national significance
(a) Surveys, plans, and studies
To encourage innovative and environmentally sound engineering solutions and innovative environmental solutions to problems of national significance, the Secretary may undertake surveys, plans, and studies and prepare reports that may lead to work under existing civil works authorities or to recommendations for authorizations.
(b) Funding
(1) Authorization of appropriations
There is authorized to be appropriated to carry out this section $1,000,000 for each of fiscal years 1997 through 2000.
(2) Funding from other sources
The Secretary may accept and expend additional funds from other Federal agencies, States, or non-Federal entities for purposes of carrying out this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, 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
§2313b. Support of Army civil works program
(a) General authority
In carrying out research and development in support of the civil works program of the Department of the Army, the Secretary may utilize contracts, cooperative research and development agreements, cooperative agreements, and grants with non-Federal entities, including State and local governments, colleges and universities, consortia, professional and technical societies, public and private scientific and technical foundations, research institutions, educational organizations, and nonprofit organizations.
(b) Commercial application
With respect to contracts for research and development, the Secretary may include requirements that have potential commercial application and may use such potential application as an evaluation factor where appropriate.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, 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
§2314. Innovative technology
(a) Use
The Secretary shall, whenever feasible, seek to promote long- and short-term cost savings, increased efficiency, reliability, and safety, and improved environmental results through the use of innovative technology in all phases of water resources development projects and programs under the Secretary's jurisdiction. To further this goal, Congress encourages the Secretary to—
(1) use procurement and contracting procedures that encourage innovative project design, construction, rehabilitation, repair, and operation and maintenance technologies;
(2) frequently review technical and design criteria to remove or modify unnecessary impediments to innovation;
(3) increase timely exchange of technical information with universities, private companies, government agencies, and individuals;
(4) foster design competition; and
(5) encourage greater participation by non-Federal project sponsors in the development and implementation of projects.
(b) Accelerated adoption of innovative technologies for management of contaminated sediments
(1) Test projects
The Secretary shall approve an appropriate number of projects to test, under actual field conditions, innovative technologies for environmentally sound management of contaminated sediments.
(2) Demonstration projects
The Secretary may approve an appropriate number of projects to demonstrate innovative technologies that have been pilot tested under paragraph (1).
(3) Conduct of projects
Each pilot project under paragraph (1) and demonstration project under paragraph (2) shall be conducted by a university with proven expertise in the research and development of contaminated sediment treatment technologies and innovative applications using waste materials.
(4) Location
At least 1 of the projects under this subsection shall be conducted in New England by the University of New Hampshire.
(c) Reports
Within 2 years after November 17, 1988, and thereafter at the Secretary's discretion, the Secretary shall provide Congress with a report on the results of, and recommendations to increase, the development and use of innovative technology in water resources development projects under the Secretary's jurisdiction. Such report shall also contain information regarding innovative technologies which the Secretary has considered and rejected for use in water resources development projects under the Secretary's jurisdiction.
(d) "Innovative technology" defined
For the purpose of this section, the term "innovative technology" means designs, methods, or materials, including roller compacted concrete, geosynthetic materials, and advanced composites, that the Secretary determines are appropriate to carry out this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1988, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2014—Subsec. (d).
1999—Subsecs. (b) to (d).
Statutory Notes and Related Subsidiaries
Design-Build Contracting
Review of Innovative Dredging Technologies
"(1)
"(2)
"(A)
"(B)
"(3)
Beneficial Use of Waste Tire Rubber
"(a)
"(b)
"(c)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2314a. Technical assistance program
(a) In general
The Secretary is authorized to provide technical assistance, on a nonexclusive basis, to any United States firm which is competing for, or has been awarded, a contract for the planning, design, or construction of a project outside the United States, if the United States firm provides, in advance of fiscal obligation by the United States, funds to cover all costs of such assistance. In determining whether to provide such assistance, the Secretary shall consider the effects on the Department of the Army civil works mission, personnel, and facilities. Prior to the Secretary providing such assistance, a United States firm must—
(1) certify to the Secretary that such assistance is not otherwise reasonably and expeditiously available; and
(2) agree to hold and save the United States free from damages due to the planning, design, construction, operation, or maintenance of the project.
(b) Federal employees' inventions
As to an invention made or conceived by a Federal employee while providing assistance pursuant to this section, if the Secretary decides not to retain all rights in such invention, the Secretary may—
(1) grant or agree to grant in advance, to a United States firm, a patent license or assignment, or an option thereto, retaining a nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention or have the invention practiced throughout the world by or on behalf of the United States and such other rights as the Secretary deems appropriate; or
(2) waive, subject to reservation by the United States of a nonexclusive, irrevocable, paid-up license to practice the invention or have the invention practiced throughout the world by or on behalf of the United States, in advance, in whole, or in part, any right which the United States may have to such invention.
(c) Protection of confidential information
Information of a confidential nature, such as proprietary or classified information, provided to a United States firm pursuant to this section shall be protected. Such information may be released by a United States firm only after written approval by the Secretary.
(d) Definitions
For purposes of this section—
(1) United States firm
The term "United States firm" means a corporation, partnership, limited partnership, or sole proprietorship that is incorporated or established under the laws of any of the United States with its principal place of business in the United States.
(2) United States
The term "United States", when used in a geographical sense, means the several States of the United States and the District of Columbia.
(
Editorial Notes
Codification
Section was formerly set out as a note under
Section was enacted as part of the Water Resources Development Act of 1988, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
1990—
Subsec. (a).
Subsecs. (d), (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2314b. Advanced modeling technologies
(a) In general
To the greatest extent practicable, the Secretary shall encourage and incorporate advanced modeling technologies, including 3-dimensional digital modeling, that can expedite project delivery or improve the evaluation of water resources development projects that receive Federal funding by—
(1) accelerating and improving the environmental review process;
(2) increasing effective public participation;
(3) enhancing the detail and accuracy of project designs;
(4) increasing safety;
(5) accelerating construction and reducing construction costs; or
(6) otherwise achieving the purposes described in paragraphs (1) through (5).
(b) Activities
In carrying out subsection (a), the Secretary, to the greatest extent practicable, shall—
(1) compile information related to advanced modeling technologies, including industry best practices with respect to the use of the technologies;
(2) disseminate to non-Federal interests the information described in paragraph (1); and
(3) promote the use of advanced modeling technologies.
(
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
§2315. Periodic statements
Upon receipt of a request from a non-Federal sponsor of a water resources development project under construction by the Secretary, the Secretary shall provide such sponsor with periodic statements of project expenditures. Such statements shall include an estimate of all Federal and non-Federal funds expended by the Secretary, including overhead expenditures, the purpose for expenditures, and a schedule of anticipated expenditures during the remaining period of construction. Statements shall be provided to the sponsor at intervals of no greater than 6 months.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1988, 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
§2315a. Transparency in accounting and administrative expenses
On the request of a non-Federal interest, the Secretary shall provide to the non-Federal interest a detailed accounting of the Federal expenses associated with a water resources project.
(
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
§2315b. Transparency and accountability in cost sharing for water resources development projects
(a) Definition of balance sheet
In this section, the term "balance sheet" means a document that describes—
(1) the funds provided by each Federal and non-Federal interest for a water resources development project; and
(2) the status of those funds.
(b) Establishment of balance sheet
Each district of the Corps of Engineers shall, using the authority of the Secretary under
(1) maintain a balance sheet for each water resources development project carried out by the Secretary for which a non-Federal cost share is required; and
(2) on request of a non-Federal interest that provided funds for the project, provide to the non-Federal interest a copy of the balance sheet.
(c) Under-budget projects
In the case of a water resources development project carried out by the Secretary that is completed at a cost less than the estimated cost, the Secretary shall transfer any excess non-Federal funds to the non-Federal interest in accordance with the cost-share requirement applicable to the project.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, 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 102 of
§2316. Environmental protection mission
(a) General rule
The Secretary shall include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, constructing, operating, and maintaining water resources projects.
(b) Limitation
Nothing in this section affects—
(1) existing Corps of Engineers' authorities, including its authorities with respect to navigation and flood control;
(2) pending Corps of Engineers permit applications or pending lawsuits involving permits or water resources projects; or
(3) the application of public interest review procedures for Corps of Engineers permits.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, 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
§2317. Wetlands
(a) Goals and action plan
(1) Goals
There is established, as part of the Corps of Engineers water resources development program, an interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation's wetlands, as defined by acreage and function.
(2) Use of authorities
The Secretary shall utilize all appropriate authorities, including those to restore and create wetlands, in meeting the interim and long-term goals.
(3) Action plan
(A) Development
The Secretary shall develop, in consultation with the Environmental Protection Agency, the Fish and Wildlife Service, and other appropriate Federal agencies, a wetlands action plan to achieve the goals established by this subsection as soon as possible.
(B) Contents
The plan shall include and identify actions to be taken by the Secretary in achieving the goals and any new authorities which may be necessary to accelerate attainment of the goals.
(C) Completion deadline
The Secretary shall complete the plan not later than 1 year after November 28, 1990.
(b) Constructed wetlands for Mud Creek, Arkansas
Notwithstanding any other provision of law, the Secretary is authorized and directed to establish and carry out a research and pilot project to evaluate and demonstrate—
(1) the use of constructed wetlands for wastewater treatment, and
(2) methods by which such projects contribute—
(A) to meeting the objective of the Federal Water Pollution Control Act [
(B) to attaining the goals established by subsection (a).
The project under this subsection shall be carried out to improve the quality of effluent discharged from publicly owned treatment works operated by the city of Fayetteville, Arkansas, into Mud Creek or its tributaries.
(c) Non-Federal responsibilities
For the project conducted under subsection (b), the non-Federal interest shall agree—
(1) to provide, without cost to the United States, all lands, easements, rights-of-way, relocations, and dredged material disposal areas necessary for construction and subsequent research and demonstration work;
(2) to hold and save the United States free from damages due to construction, operation, and maintenance of the project, except damages due to the fault or negligence of the United States or its contractors; and
(3) to operate and maintain the restored or constructed wetlands in accordance with good management practices; except that nothing in this paragraph shall be construed as precluding a Federal agency from agreeing to operate and maintain the restored or reconstructed wetlands.
The value of the non-Federal lands, easements, rights-of-way, relocations, and dredged material disposal areas provided by the non-Federal interest shall be credited toward the non-Federal share of project design and construction costs. The non-Federal share of project design and construction costs shall be 25 percent.
(d) Wetlands restoration and enhancement demonstration program
(1) Establishment and implementation
The Secretary, in consultation with the Administrator, is authorized to establish and implement a demonstration program for the purpose of determining the feasibility of wetlands restoration, enhancement, and creation as a means of contributing to the goals established by subsection (a).
(2) Goal
The goal of the program under this subsection shall be to establish a limited number of demonstration wetlands restoration, enhancement, and creation areas in districts of the Corps of Engineers for the purpose of evaluating the technical and scientific long-term feasibility of such areas as a means of contributing to the attainment of the goals established by subsection (a). Federal and State land-owning agencies and private parties may contribute to such areas.
(3) Factors to consider
In establishing the demonstration program under this subsection, the Secretary shall consider—
(A) past experience with wetlands restoration, enhancement, and creation;
(B) the appropriate means of measuring benefits of compensatory mitigation activities, including enhancement or restoration of existing wetlands or creation of wetlands;
(C) the appropriate geographic scope for which wetlands loss may be offset by restoration, enhancement, and creation efforts;
(D) the technical feasibility and scientific likelihood that wetlands can be successfully restored, enhanced, and created;
(E) means of establishing liability for, and long-term ownership of, wetlands restoration, enhancement, and creation areas; and
(F) responsibilities for short- and long-term project monitoring.
(4) Reporting
(A) To the Chief of Engineers
The district engineer for each district of the Corps of Engineers in which a wetlands restoration, enhancement, and creation area is established under this subsection shall transmit annual reports to the Chief of Engineers describing the amount and value of wetlands restored, enhanced, and created for the area and a summary of whether the area is contributing to the goal established in paragraph (2).
(B) To Congress
Not later than 3 years after November 28, 1990, the Secretary shall transmit to Congress a report evaluating the use of wetlands restoration, enhancement, and creation areas in fulfilling the goal established by paragraph (2), together with recommendations on whether or not to continue use of such areas as a means of meeting the goals established by subsection (a).
(5) Effect on other laws
Nothing in this subsection affects any requirements under section 404 of the Federal Water Pollution Control Act (
(e) Training and certification of delineators
(1) In general
The Secretary is authorized to establish a program for the training and certification of individuals as wetlands delineators. As part of such program, the Secretary shall carry out demonstration projects in districts of the Corps of Engineers. The program shall include training and certification of delineators and procedures for expediting consideration and acceptance of delineations performed by certified delineators.
(2) Reports
The Secretary shall transmit to Congress periodic reports concerning the status of the program and any recommendations on improving the content and implementation of the Federal Manual for Identifying and Delineating Jurisdictional Wetlands.
(
Editorial Notes
References in Text
The Federal Water Pollution Control Act, referred to in subsec. (b)(2)(A), is act June 30, 1948, ch. 758, as amended generally by
Codification
Section was enacted as part of the Water Resources Development Act of 1990, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which a report required under subsec. (e)(2) of this section is listed on page 70), see section 3003 of
Wetlands Enhancement Opportunities
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2317a. Cooperative agreements
(a) In general
For the purpose of expediting the cost-effective design and construction of wetlands restoration that is part of an authorized water resources project, the Secretary may enter into cooperative agreements under
(b) Limitations
(1) Per project limit
A cooperative agreement under this section may not obligate the Secretary to pay the nonprofit organization more than $1,000,000 for any single wetlands restoration project.
(2) Annual limit
The total value of work carried out under cooperative agreements under this section may not exceed $5,000,000 in any fiscal year.
(
Editorial Notes
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
§2317b. Mitigation banks and in-lieu fee arrangements
(1) In general
Not later than 180 days after December 16, 2016, the Secretary shall issue implementation guidance that provides for the consideration in water resources development feasibility studies of the entire amount of potential in-kind credits available at mitigation banks approved by the Secretary and in-lieu fee programs with an approved service area that includes the location of the projected impacts of the water resources development project.
(2) Requirements
All potential mitigation bank and in-lieu fee credits that meet the criteria under paragraph (1) shall be considered a reasonable alternative for planning purposes if—
(A) the applicable mitigation bank—
(i) has an approved mitigation banking instrument; and
(ii) has completed a functional analysis of the potential credits using the approved Corps of Engineers certified habitat assessment model specific to the region; and
(B) the Secretary determines that the use of such banks or in-lieu fee programs provide reasonable assurance that the statutory (and regulatory) mitigation requirements for a water resources development project are met, including monitoring or demonstrating mitigation success.
(3) Effect
Nothing in this subsection—
(A) modifies or alters any requirement for a water resources development project to comply with applicable laws or regulations, including
(B) shall be construed as to limit mitigation alternatives or require the use of mitigation banks or in-lieu fee programs.
(
Editorial Notes
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.
Amendments
2016—
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2318. Flood plain management
(a) Exclusion of elements from benefit-cost analysis
The Secretary shall not include in the benefit base for justifying Federal flood damage reduction projects—
(1)(A) any new or substantially improved structure (other than a structure necessary for conducting a water-dependent activity) built in the 100-year flood plain with a first floor elevation less than the 100-year flood elevation after July 1, 1991; or
(B) in the case of a county substantially located within the 100-year flood plain, any new or substantially improved structure (other than a structure necessary for conducting a water-dependent activity) built in the 10-year flood plain after July 1, 1991; and
(2) any structure which becomes located in the 100-year flood plain with a first floor elevation less than the 100-year flood elevation or in the 10-year flood plain, as the case may be, by virtue of constrictions placed in the flood plain after July 1, 1991.
(b) Flood damage reduction benefits
(1) In general
In calculating the benefits of a proposed project for nonstructural flood damage reduction, the Secretary shall calculate the benefits of the nonstructural project using methods similar to those used for calculating the benefits of structural projects, including similar treatment in calculating the benefits from losses avoided.
(2) Avoidance of double counting
In carrying out paragraph (1), the Secretary should avoid double counting of benefits.
(c) Counties substantially located within 100-year flood plain
For the purposes of subsection (a), a county is substantially located within the 100-year flood plain—
(1) if the county is comprised of lands of which 50 percent or more are located in the 100-year flood plain; and
(2) if the Secretary determines that application of the requirement contained in subsection (a)(1)(A) with respect to the county would unreasonably restrain continued economic development or unreasonably limit the availability of needed flood control measures.
(d) Cost sharing
Not later than January 1, 1992, the Secretary shall transmit to Congress a report on the feasibility and advisability of increasing the non-Federal share of costs for new projects in areas where new or substantially improved structures and other constrictions are built or placed in the 100-year flood plain or the 10-year flood plain, as the case may be, after the initial date of the affected governmental unit's entry into the regular program of the national flood insurance program of the National Flood Insurance Act of 1968 [
(e) Regulations
Not later than 6 months after the date on which a report is transmitted to Congress under subsection (c), the Secretary, in consultation with the Director of the Federal Emergency Management Agency, shall issue regulations to implement subsection (a). Such regulations shall define key terms, such as new or substantially improved structure, constriction, 10-year flood plain, and 100-year flood plain.
(f) Applicability
The provisions of this section shall not apply to any project, or separable element thereof, for which a final report of the Chief of Engineers has been forwarded to the Secretary before the last day of the 6-month period beginning on the date on which regulations are issued pursuant to subsection (a) but not later than July 1, 1993.
(
Editorial Notes
References in Text
The National Flood Insurance Act of 1968, referred to in subsec. (d), is title XIII of
Codification
Section was enacted as part of the Water Resources Development Act of 1990, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
1999—Subsec. (a).
Subsecs. (b) to (d).
Subsec. (e).
Subsec. (f).
Statutory Notes and Related Subsidiaries
Change of Name
References to the Director of the Federal Emergency Management Agency to be considered to refer and apply to the Administrator of the Federal Emergency Management Agency, see section 612(c) of
Transfer of Functions
For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal Emergency Management Agency, see
For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and
Reevaluation of Flood Control Projects
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2319. Reservoir management
The Secretary shall ensure that, in developing or revising reservoir operating manuals of the Corps of Engineers, the Corps shall provide significant opportunities for public participation, including opportunities for public hearings. The Secretary shall issue regulations to implement this section, including a requirement that all appropriate informational materials relating to proposed management decisions of the Corps be made available to the public sufficiently in advance of public hearings. Not later than January 1, 1992, the Secretary shall transmit to Congress a report on measures taken pursuant to this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
1996—Subsec. (a).
Subsec. (b).
Statutory Notes and Related Subsidiaries
Forecast-Informed Reservoir Operations
"(1)
"(2)
Dam Optimization
"(1)
"(2)
"(A)
"(i)
"(ii)
"(iii)
"(B)
"(i)
"(ii)
"(I) include—
"(aa) the date on which the most recent review of project operations was conducted and any recommendations of the Secretary relating to that review the Secretary determines to be significant;
"(bb) the activities carried out pursuant to each such review to improve the efficiency of operations and maintenance and to improve project benefits consistent with authorized purposes;
"(cc) the degree to which reviews of project operations and subsequent activities pursuant to completed reviews complied with the policies and requirements of applicable law and regulations; and
"(dd) a plan for reviewing the operations of individual projects, including a detailed schedule for future reviews of project operations, that—
"(AA) complies with the polices and requirements of applicable law and regulations;
"(BB) gives priority to reviews and activities carried out pursuant to such plan where the Secretary determines that there is support for carrying out those reviews and activities; and
"(CC) ensures that reviews and activities are carried out pursuant to such plan;
"(II) be coordinated with appropriate Federal, State, and local agencies and those public and private entities that the Secretary determines may be affected by those reviews or activities;
"(III) not supersede or modify any written agreement between the Federal Government and a non-Federal interest that is in effect on the date of enactment of this Act [June 10, 2014];
"(IV) not supersede or authorize any amendment to a multistate water control plan, including the Missouri River Master Water Control Manual (as in effect on the date of enactment of this Act);
"(V) not affect any water right in existence on the date of enactment of this Act;
"(VI) not preempt or affect any State water law or interstate compact governing water;
"(VII) not affect any authority of a State, as in effect on the date of enactment of this Act, to manage water resources within that State; and
"(VIII) comply with section 301 of the Water Supply Act of 1958 (
"(3)
"(A) conduct an audit to determine—
"(i) whether reviews of project operations carried out by the Secretary prior to the date of enactment of this Act complied with the policies and requirements of applicable law and regulations; and
"(ii) whether the plan developed by the Secretary pursuant to paragraph (2)(B)(ii)(I)(dd) complies with this subsection and with the policies and requirements of applicable law and regulation; and
"(B) not later than 2 years after the date of enactment of this Act, submit to Congress a report that—
"(i) summarizes the results of the audit required by subparagraph (A);
"(ii) includes an assessment of whether existing practices for managing and reviewing project operations could result in greater efficiencies that would enable the Corps of Engineers to better prepare for, contain, and respond to flood, storm, and drought conditions; and
"(iii) includes recommendations for improving the review of project operations to improve the efficiency and effectiveness of such operations and to better achieve authorized purposes while enhancing overall project benefits.
"(4)
"(5)
"(A)
"(B)
"(6)
"(A)
"(B)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2320. Protection of recreational and commercial uses
(a) General rule
In planning any water resources project, the Secretary shall consider the impact of the project on existing and future recreational and commercial uses in the area surrounding the project.
(b) Maintenance
Whenever the Secretary maintains, repairs, rehabilitates, or reconstructs a water resources project which will result in a change in the configuration of a structure which is a part of such project, the Secretary, to the maximum extent practicable, shall carry out such maintenance, repair, rehabilitation, or reconstruction in a manner which will not adversely affect any recreational use established with respect to such project before the date of such maintenance, repair, rehabilitation, or reconstruction.
(c) Mitigation
(1) In general
If maintenance, repair, rehabilitation, or reconstruction of a water resources project by the Secretary results in a change in the configuration of any structure which is a part of such project and has an adverse effect on a recreational use established with respect to such project before the date of such maintenance, repair, rehabilitation, or reconstruction, the Secretary, to the maximum extent practicable, shall take such actions as may be necessary to restore such recreational use or provide alternative opportunities for comparable recreational use.
(2) Maximum amount
The Secretary may not expend more than $2,000,000 in a fiscal year to carry out this subsection.
(3) Termination date
This subsection shall not be effective after the last day of the 5-year period beginning on November 28, 1990; except that the Secretary may complete any restoration commenced under this subsection on or before such last day.
(d) Applicability
(1) General rule
Subsections (b) and (c) shall apply to maintenance, repair, rehabilitation, or reconstruction for which physical construction is initiated after May 1, 1988.
(2) Limitation
Subsections (b) and (c) shall not apply to any action of the Secretary which is necessary to discontinue the operation of a water resources project.
(e) Cost sharing
Costs incurred by the Secretary to carry out the objectives of this section shall be allocated to recreation and shall be payable by the beneficiaries of the recreation.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, 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
§2321. Operation and maintenance of navigation and hydroelectric facilities
(a) In general
Activities currently performed by personnel under the direction of the Secretary in connection with the operation and maintenance of navigation or hydroelectric power generating facilities at Corps of Engineers water resources projects are to be considered as inherently governmental functions and not commercial activities.
(b) Major maintenance contracts allowed
This section does not prohibit contracting out major maintenance or other functions which are currently contracted out or studying services not directly connected with project maintenance and operations.
(c) Exclusion
This section does not—
(1) apply to a navigation facility that was under contract on or before October 23, 2018, with a non-Federal interest to perform operations or maintenance; and
(2) prohibit the Secretary from contracting out commercial activities after October 23, 2018, at a navigation facility.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2018—
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2321a. Hydroelectric power project uprating
(a) In general
In carrying out the operation, maintenance, rehabilitation, and modernization of a hydroelectric power generating facility at a water resources project under the jurisdiction of the Department of the Army, the Secretary may, to the extent funds are made available in appropriations Acts or in accordance with subsection (c), take such actions as are necessary to optimize the efficiency of energy production or increase the capacity of the facility, or both, if, after consulting with the heads of other appropriate Federal and State agencies, the Secretary determines that such actions—
(1) are economically justified and financially feasible;
(2) will not result in any significant adverse effect on the other purposes for which the project is authorized;
(3) will not result in significant adverse environmental impacts;
(4) will not involve major structural or operational changes in the project; and
(5) will not adversely affect the use, management, or protection of existing Federal, State, or tribal water rights.
(b) Consultation
Before proceeding with any proposed uprating under subsection (a), the Secretary shall provide affected State, tribal, and Federal agencies with a copy of the proposed determinations under subsection (a). If the agencies submit comments, the Secretary shall accept those comments or respond in writing to any objections those agencies raise to the proposed determinations.
(c) Use of funds provided by preference customers
In carrying out this section, the Secretary may accept and expend funds provided by preference customers under Federal law relating to the marketing of power.
(d) Application
This section does not apply to any facility of the Department of the Army that is authorized to be funded under
(e) Effect on other authority
This section shall not affect the authority of the Secretary and the Administrator of the Bonneville Power Administration under
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2000—Subsec. (a).
Subsec. (a)(1).
Subsec. (b).
Subsecs. (c) to (e).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2321b. Expediting hydropower at Corps of Engineers facilities
(a) Policy
Congress declares that it is the policy of the United States that—
(1) the development of non-Federal hydroelectric power at Corps of Engineers water resources development projects, including locks and dams, shall be given priority;
(2) Corps of Engineers approval of non-Federal hydroelectric power at Corps of Engineers water resources development projects, including permitting required under
(3) approval of hydropower at Corps of Engineers water resources development projects shall in no way diminish the other priorities and missions of the Corps of Engineers, including authorized project purposes and habitat and environmental protection.
(b) Implementation of policy
The Secretary shall—
(1) ensure that the policy described in subsection (a) is implemented nationwide in an efficient, consistent, and coordinated manner; and
(2) assess opportunities—
(A) to increase the development of hydroelectric power at existing water resources development projects of the Corps of Engineers with hydroelectric facilities; and
(B) to develop new hydroelectric power at existing nonpowered water resources development projects of the Corps of Engineers.
(c) Report
Not later than 2 years after June 10, 2014, and biennially 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 a report that, at a minimum, shall include—
(1) a description of initiatives carried out by the Secretary to encourage the development of hydroelectric power by non-Federal entities at Corps of Engineers water resources development projects and to meet the requirements of subsection (b);
(2) a list of all new hydroelectric power activities by non-Federal entities approved at Corps of Engineers water resources development projects in that fiscal year, including the length of time the Secretary needed to approve those activities;
(3) a description of the status of each pending application from non-Federal entities for approval to develop hydroelectric power at Corps of Engineers water resources development projects;
(4) a description of any benefits or impacts to the environment, recreation, or other uses associated with Corps of Engineers water resources development projects at which non-Federal entities have developed hydroelectric power in the previous fiscal year; and
(5) the total annual amount of payments or other services provided to the Corps of Engineers, the Treasury, and any other Federal agency as a result of approved non-Federal hydropower projects at Corps of Engineers water resources development projects.
(d) Reviewing hydropower at Corps of Engineers facilities
(1) Definition of eligible non-Federal interest
In this subsection, the term "eligible non-Federal interest" means a non-Federal interest that owns or operates an existing non-Federal hydropower facility at a Corps of Engineers water resources development project.
(2) Evaluation
(A) In general
On the written request of an eligible non-Federal interest, the Secretary shall conduct an evaluation to consider operational changes at the applicable project to facilitate production of non-Federal hydropower, consistent with authorized project purposes. The Secretary shall solicit input from interested stakeholders as part of the evaluation.
(B) Deadline
Not later than 180 days after the date on which the Secretary receives a written request under subparagraph (A), the Secretary shall provide to the non-Federal interest a written response to inform the non-Federal interest—
(i) that the Secretary has approved the request to conduct an evaluation; or
(ii) of any additional information necessary for the Secretary to approve the request to conduct an evaluation.
(3) Operational changes
An operational change referred to in paragraph (2)(A) may include—
(A) changes to seasonal pool levels;
(B) modifying releases from the project; and
(C) other changes included in the written request submitted under that paragraph that enhance the usage of the project to facilitate production of non-Federal hydropower, consistent with authorized project purposes.
(4) Cost share
The eligible non-Federal interest shall pay 100 percent of the costs associated with an evaluation under this subsection, including the costs to prepare the report under paragraph (6).
(5) Deadline
The Secretary shall complete an evaluation under this subsection by the date that is not later than 1 year after the date on which the Secretary begins the evaluation.
(6) Report
On completion of an evaluation under this subsection, 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 on the effects of the operational changes proposed by the non-Federal interest and examined in the evaluation on the authorized purposes of the project, including a description of any negative impacts of the proposed operational changes on the authorized purposes of the project, or on any Federal project located in the same basin.
(7) Savings provision
Nothing in this subsection—
(A) affects the authorized purposes of a Corps of Engineers water resources development project;
(B) affects existing authorities of the Corps of Engineers, including authorities with respect to navigation, flood damage reduction, environmental protection and restoration, water supply and conservation, and other related purposes; or
(C) authorizes the Secretary to make any operational changes to a Corps of Engineers water resources development project.
(
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.
Amendments
2022—Subsec. (b).
Subsec. (b)(1).
Subsecs. (c), (d).
2020—Subsecs. (a), (b).
Subsec. (c).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2322. Single entities
For purposes of Federal participation in water resource development projects which are to be carried out by the Secretary, benefits which are to be provided to a facility owned by a State (including the District of Columbia and a territory or possession of the United States), county, municipality, or other public entity shall not be treated as benefits to be provided a single owner or single entity. The Secretary shall not treat such a facility as a single owner or single entity for any purpose.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, 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
§2323. Technical assistance to private entities
(a) Use of Corps research and development labs
The Secretary is authorized to use Corps of Engineers research and development laboratories to provide research and development assistance to corporations, partnerships, limited partnerships, consortia, public and private foundations, universities, and nonprofit organizations operating within the United States, territories or possessions of the United States, and the Commonwealths of Puerto Rico and the Northern Mariana Islands—
(1) if the entity furnishes in advance of fiscal obligation by the United States such funds as are necessary to cover any and all costs of such research and development assistance;
(2) if the Secretary determines that the research and development assistance to be provided is within the mission of the Corps of Engineers and is in the public interest;
(3) if the entity has certified to the Secretary that provision of such research and development assistance is not otherwise reasonably and expeditiously obtainable from the private sector; and
(4) if the entity has agreed to hold and save the United States free from any damages due to any such research and development assistance.
(b) Contract
The Secretary may provide research and development assistance under subsection (a), or any part thereof, by contract.
(c) Omitted
(
Editorial Notes
Codification
Section is comprised of section 318 of
Section was enacted as part of the Water Resources Development Act of 1990, 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
§2323a. Interagency and international support authority
(a) In general
The Secretary may engage in activities (including contracting) in support of Federal departments or agencies, nongovernmental organizations, international organizations, or foreign governments to address problems of national significance to the United States.
(b) Consultation
The Secretary may engage in activities in support of international organizations or foreign governments only after consulting with the Department of State.
(c) Use of Corps' expertise
The Secretary may use the technical and managerial expertise of the Corps of Engineers to address domestic and international problems related to water resources, infrastructure development, and environmental protection and restoration.
(d) Funding
(1) In general
There is authorized to be appropriated to carry out this section $1,000,000 for fiscal year 2008 and each fiscal year thereafter.
(2) Acceptance of funds
The Secretary may accept and expend additional funds from Federal departments or agencies, nongovernmental organizations, international organizations, or foreign governments to carry out this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2014—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
2007—Subsec. (a).
Subsec. (b).
Subsec. (d).
2000—Subsec. (d).
Statutory Notes and Related Subsidiaries
National Recreation Reservation Service
"(1) participate in the National Recreation Reservation Service on an interagency basis; and
"(2) pay the Department of the Army's share of the activities required to implement, operate, and maintain the Service."
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2324. Reduced pricing for certain water supply storage
(a) Provision of storage space
If a low income community requests the Secretary to provide water supply storage space in a water resources development project operated by the Secretary and if the amount of space requested is available or could be made available through reallocation of water supply storage space in the project or through modifications to operation of the project, the Secretary may provide such space to the community at a price determined under subsection (c).
(b) Maximum amount of storage space
The maximum amount of water supply storage space which may be provided to a community under this section may not exceed an amount of water supply storage space sufficient to yield 3,000,000 gallons of water per day.
(c) Price
The Secretary shall provide water supply storage space under this section at a price which is the greater of—
(1) the updated construction cost of the project allocated to provide such amount of water supply storage space or $100 per acre foot of storage space, whichever is less; and
(2) the value of the benefits which are lost as a result of providing such water supply storage space.
(d) Determinations
For purposes of subsection (c), the determinations of updated construction costs and value of benefits lost shall be made by the Secretary on the basis of the most recent information available.
(e) Inflation adjustment of dollar amount
The $100 amount set forth in subsection (c) shall be adjusted annually by the Secretary for changes in the Consumer Price Index of All Urban Consumers published by the Bureau of Labor Statistics.
(f) Non-Federal responsibilities
Nothing in this section shall be construed as affecting the responsibility of non-Federal interests to provide operation and maintenance costs assigned to water supply storage provided under this section.
(g) "Low income community" defined
The term "low income community" means—
(1) a community with a population of less than 20,000 which is located in a county with a per capita income less than the per capita income of two-thirds of the counties in the United States; or
(2) a regional water system that serves a population of less than 100,000, for which the per capita income is less than the per capita income of not less than 50 percent of the counties in the United States.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1990, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2020—Subsec. (b).
Subsec. (g).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2325. Voluntary contributions for environmental and recreation projects
(a) Acceptance
In connection with carrying out a water resources project for environmental protection and restoration or a water resources project for recreation, the Secretary is authorized to accept contributions of cash, funds, materials, and services from persons, including governmental entities but excluding the project sponsor.
(b) Deposit
Any cash or funds received by the Secretary under subsection (a) shall be deposited into the account in the Treasury of the United States entitled "Contributions and Advances, Rivers and Harbors, Corps of Engineers (8862)" and shall be available until expended to carry out water resources projects described in subsection (a).
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
1996—Subsec. (b).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 3 of
§2325a. Authority to accept and use materials and services
(a) In general
Subject to subsection (b), the Secretary is authorized to accept and use materials, services, or funds contributed by a non-Federal public entity, a nonprofit entity, or a private entity to repair, restore, replace, or maintain a water resources project in any case in which the District Commander determines that—
(1) there is a risk of adverse impacts to the functioning of the project for the authorized purposes of the project; and
(2) acceptance of the materials and services or funds is in the public interest.
(b) Limitation
Any entity that contributes materials or services under subsection (a) shall not be eligible for credit or reimbursement for the value of such materials or services.
(c) Additional requirements
(1) Applicable laws and regulations
The Secretary may only use materials or services accepted under this section if such materials and services comply with all applicable laws and regulations that would apply if such materials and services were acquired by the Secretary.
(2) Supplementary services
The Secretary may only accept and use services under this section that provide supplementary services to existing Federal employees, and may only use such services to perform work that would not otherwise be accomplished as a result of funding or personnel limitations.
(d) Report
Not later than February 1 of each year after the first fiscal year in which materials, services, or funds are accepted under this section, 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 an annual report that includes—
(1) a description of the activities undertaken, including the costs associated with the activities; and
(2) a comprehensive description of how the activities are necessary for maintaining a safe and reliable water resources project.
(
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.
Amendments
2016—Subsec. (a).
Subsec. (c).
Subsec. (d).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2325b. Materials, services, and funds for repair, restoration, or rehabilitation of projects
(a) Definitions
In this section:
(1) Covered area
The term "covered area" means an area—
(A) for which the Governor of a State has requested a determination that an emergency exists; or
(B) covered by an emergency or major disaster declaration declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (
(2) Emergency period
The term "emergency period" means—
(A) with respect to a covered area described in paragraph (1)(A), the period during which the Secretary determines an emergency exists; and
(B) with respect to a covered area described in paragraph (1)(B), the period during which the applicable declaration is in effect.
(b) In general
In any covered area, the Secretary is authorized to accept and use materials, services, and funds, during the emergency period, from a non-Federal interest or private entity to repair, restore, or rehabilitate a federally authorized water resources development project, and to provide reimbursement to such non-Federal interest or private entity for such materials, services, and funds, in the Secretary's sole discretion, and subject to the availability of appropriations, if the Secretary determines that reimbursement is in the public interest.
(c) Additional requirement
The Secretary may only reimburse for the use of materials or services accepted under this section if such materials or services meet the Secretary's specifications and comply with all applicable laws and regulations that would apply if such materials and services were acquired by the Secretary, including
(d) Agreements
(1) In general
Prior to the acceptance of materials, services, or funds under this section, the Secretary and the non-Federal interest or private entity shall enter into an agreement that specifies—
(A) the non-Federal interest or private entity shall hold and save the United States free from any and all damages that arise from use of materials or services of the non-Federal interest or private entity, except for damages due to the fault or negligence of the United States or its contractors;
(B) the non-Federal interest or private entity shall certify that the materials or services comply with all applicable laws and regulations under subsection (c); and
(C) any other term or condition required by the Secretary.
(2) Exception
If an agreement under paragraph (1) was not entered prior to materials or services being contributed, a non-Federal interest or private entity shall enter into an agreement with the Secretary that—
(A) specifies the value, as determined by the Secretary, of those materials or services contributed and eligible for reimbursement; and
(B) ensures that the materials or services comply with subsection (c) and paragraph (1).
(
Editorial Notes
References in Text
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in subsec. (a)(1)(B), is
The National Environmental Policy Act of 1969, referred to in subsec. (c), is
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2326. Regional sediment management
(a) In general
(1) Sediment use
(A) Sediment from Federal water resources projects
For sediment obtained through or used in the construction, operation, or maintenance of an authorized Federal water resources project, including a project authorized for flood control, the Secretary shall develop, at Federal expense, regional sediment management plans and carry out projects at locations identified in plans developed under this section, or identified jointly by the non-Federal interest and the Secretary, for use in the construction, repair, modification, or rehabilitation of projects associated with Federal water resources projects for purposes listed in paragraph (3).
(B) Sediment from other Federal sources and non-Federal sources
For purposes of projects carried out under this section, the Secretary may include sediment from other Federal sources and non-Federal sources, subject to the requirement that any sediment obtained from a non-Federal source shall not be obtained at Federal expense.
(2) Cooperation
The Secretary shall develop plans under this subsection in cooperation with the appropriate Federal, State, regional, and local agencies.
(3) Purposes for sediment use in projects
The purposes of using sediment for the construction, repair, modification, or rehabilitation of Federal water resources projects are—
(A) to reduce storm damage to property;
(B) to protect, restore, and create aquatic and ecologically related habitats, including wetlands; and
(C) to transport and place suitable sediment for the purposes of improving environmental conditions in marsh and littoral systems, stabilizing stream channels, enhancing shorelines, and supporting State and local risk management adaptation strategies.
(4) Reducing costs
To reduce or avoid Federal costs, the Secretary shall consider the beneficial use of dredged material in a manner that contributes to the maintenance of sediment resources in the nearby coastal system.
(b) Secretarial findings
Subject to subsection (c), projects carried out under subsection (a) may be carried out in any case in which the Secretary finds that—
(1) the environmental, economic, and social benefits of the project, both monetary and nonmonetary, justify the cost of the project; and
(2) the project will not result in environmental degradation.
(c) Determination of project costs
(1) Costs of construction
(A) In general
Costs associated with construction of a project under this section or identified in a regional sediment management plan shall be limited solely to construction costs that are in excess of the costs necessary to carry out the dredging for construction, operation, or maintenance of an authorized Federal water resources project in the most cost-effective way, consistent with economic, engineering, and environmental criteria.
(B) Cost sharing
(i) In general
Except as provided in clause (ii), the non-Federal share of the construction cost of a project under this section shall be determined as provided in subsections (a) through (d) of
(ii) Special rule
Construction of a project under this section for one or more of the purposes of protection, restoration, or creation of aquatic and ecologically related habitat, the cost of which does not exceed $750,000 and which is located in a disadvantaged community as determined by the Secretary, may be carried out at Federal expense.
(C) Total cost
The total Federal costs associated with construction of a project under this section may not exceed $10,000,000.
(2) Operation, maintenance, replacement, and rehabilitation costs
Operation, maintenance, replacement, and rehabilitation costs associated with a project under this section are the responsibility of the non-Federal interest.
(d) Selection of dredged material disposal method for purposes related to environmental restoration or storm damage and flood reduction
(1) In general
At the request of the non-Federal interest for a water resources development project involving the disposal of dredged material, the Secretary, using funds appropriated for construction or operation and maintenance of the project, may select a disposal method that is not the least cost option if the Secretary determines that the incremental costs of the disposal method are reasonable in relation to—
(A) the environmental benefits, including the benefits to the aquatic environment to be derived from the creation of wetlands and control of shoreline erosion; or
(B) the hurricane and storm or flood risk reduction benefits, including shoreline protection, protection against loss of life, and damage to improved property.
(2) Federal share
The Federal share of such incremental costs shall be determined in accordance with subsection (c).
(3) Special rule
Disposal of dredged material under this subsection may include a single or periodic application of sediment for beneficial use and shall not require operation and maintenance.
(4) Disposal at non-Federal cost
The Secretary may accept funds from a non-Federal interest to dispose of dredged material as provided under
(5) Selection of dredged material disposal method for certain purposes
Activities carried out under this subsection—
(A) shall be carried out using amounts appropriated for construction or operation and maintenance of the project involving the disposal of the dredged material; and
(B) shall not carried 1 out using amounts made available under subsection (g).
(e) State and regional plans
The Secretary may—
(1) cooperate with any State or group of States in the preparation of a comprehensive State or regional sediment management plan within the boundaries of the State or among States;
(2) encourage State participation in the implementation of the plan; and
(3) submit to Congress reports and recommendations with respect to appropriate Federal participation in carrying out the plan.
(f) Priority areas
In carrying out this section, the Secretary shall give priority to a regional sediment management project in the vicinity of each of the following:
(1) Little Rock Slackwater Harbor, Arkansas.
(2) Fletcher Cove, California.
(3) Egmont Key, Florida.
(4) Calcasieu Ship Channel, Louisiana.
(5) Delaware River Estuary, New Jersey and Pennsylvania.
(6) Fire Island Inlet, Suffolk County, New York.
(7) Smith Point Park Pavilion and the TWA Flight 800 Memorial, Brookhaven, New York.
(8) Morehead City, North Carolina.
(9) Toledo Harbor, Lucas County, Ohio.
(10) Galveston Bay, Texas.
(11) Benson Beach, Washington.
(g) Authorization of appropriations
There is authorized to be appropriated to carry out this section $62,500,000 per fiscal year, of which not more than $5,000,000 per fiscal year may be used for the development of regional sediment management plans authorized by subsection (e) and of which not more than $3,000,000 per fiscal year may be used for construction of projects to which subsection (c)(1)(B)(ii) applies. Such funds shall remain available until expended.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2020—Subsec. (d)(1).
Subsec. (d)(1)(B).
Subsec. (d)(5).
2018—Subsec. (a)(1)(A).
Subsec. (g).
2016—Subsec. (a)(1).
Subsec. (d)(3), (4).
2014—Subsec. (a)(1).
Subsec. (a)(3)(C).
Subsec. (a)(4).
Subsec. (c)(1)(C).
Subsec. (d).
Subsec. (d)(1).
Subsec. (e)(1).
Subsec. (g).
2007—
1999—Subsec. (c).
Subsec. (g).
1996—Subsecs. (e), (f).
Statutory Notes and Related Subsidiaries
Applicability
Project Selection
Coordination With Existing Authorities
Dredge Pilot Program
"(a)
"(1) harbors and inland harbors referred to in section 210(a)(2) of the Water Resources Development Act of 1986 (
"(2) inland and intracoastal waterways of the United States described in section 206 of the Inland Waterways Revenue Act of 1978 (
"(b)
"(c)
"(1) cost effectiveness;
"(2) reliability and performance;
"(3) cost savings attributable to mobilization and demobilization of dredge equipment; and
"(4) response times to address navigational impediments.
"(d)
Beneficial Use of Dredged Sediment
"(a)
"(b)
Beneficial Use of Dredged Material
"(a)
"(1) reducing storm damage to property and infrastructure;
"(2) promoting public safety;
"(3) protecting, restoring, and creating aquatic ecosystem habitats;
"(4) stabilizing stream systems and enhancing shorelines;
"(5) promoting recreation;
"(6) supporting risk management adaptation strategies;
"(7) reducing the costs of dredging and dredged material placement or disposal, such as projects that use dredged material for—
"(A) construction or fill material;
"(B) civic improvement objectives; and
"(C) other innovative uses and placement alternatives that produce public economic or environmental benefits; and
"(8) recovering lost storage capacity in reservoirs due to sediment accumulation, if the project also has a purpose described in any of paragraphs (1) through (7).
"(b)
"(1) identify for inclusion in the pilot program and carry out 35 projects for the beneficial use of dredged material;
"(2) consult with relevant State agencies in selecting projects; and
"(3) select projects solely on the basis of—
"(A) the environmental, economic, and social benefits of the projects, including monetary and nonmonetary benefits; and
"(B) the need for a diversity of project types and geographical project locations.
"(c)
"(1)
"(2)
"(A)
"(B)
"(i) representatives of relevant Corps of Engineers districts and divisions;
"(ii) representatives of relevant State and local agencies; and
"(iii) representatives of Federal agencies and such other entities as the Secretary determines appropriate, consistent with the purposes of this section.
"(d)
"(1) maximizes the beneficial placement of dredged material from Federal and non-Federal navigation channels;
"(2) incorporates, to the maximum extent practicable, 2 or more Federal navigation, flood control, storm damage reduction, or environmental restoration projects;
"(3) coordinates the mobilization of dredges and related equipment, including through the use of such efficiencies in contracting and environmental permitting as can be implemented under existing laws and regulations;
"(4) fosters Federal, State, and local collaboration;
"(5) implements best practices to maximize the beneficial use of dredged sand and other sediments; and
"(6) ensures that the use of dredged material is consistent with all applicable environmental laws.
"(e)
"(1)
"(2)
"(f)
"(1) a description of the projects selected to be carried out under the pilot program;
"(2) documentation supporting each of the projects selected;
"(3) the findings of regional beneficial use teams regarding project selection; and
"(4) any recommendations of the Secretary or regional beneficial use teams with respect to the pilot program.
"(g)
"(h)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 3 of
1 So in original. Probably should be preceded by "be".
§2326a. Dredged material disposal facility partnerships
(a) Additional capacity or replacement capacity
(1) Provided by Secretary
(A) In general
Subject to subparagraph (B), at the request of a non-Federal interest with respect to a project, the Secretary may—
(i) provide additional capacity at a dredged material disposal facility constructed by the Secretary beyond the capacity that would be required for project purposes; or
(ii) permit the use of dredged material disposal facility capacity required for project purposes by the non-Federal interest if the Secretary determines that replacement capacity can be constructed at the facility or another facility or site before such capacity is needed for project purposes.
(B) Agreement
Before the Secretary takes an action under subparagraph (A), the non-Federal interest shall agree to pay—
(i) all costs associated with the construction of the additional capacity or replacement capacity in advance of construction of such capacity; and
(ii) in the case of use by a non-Federal interest of dredged material disposal capacity required for project purposes under subparagraph (A)(ii), any increase in the cost of operation and maintenance of the project that the Secretary determines results from the use of the project capacity by the non-Federal interest in advance of each cycle of dredging.
(C) Credit
In the event the Secretary determines that the cost to operate or maintain the project decreases as a result of use by the non-Federal interest of dredged material disposal capacity required for project purposes under subparagraph (A)(ii), the Secretary, at the request of the non-Federal interest, shall credit the amount of the decrease toward any cash contribution of the non-Federal interest required thereafter for construction, operation, or maintenance of the project, or of another navigation project.
(2) Cost recovery authority
The non-Federal interest may recover the costs assigned to the additional capacity under paragraph (1)(A)(i) through fees assessed on third parties whose dredged material is deposited at the facility and who enter into agreements with the non-Federal interest for the use of the facility. The amount of such fees may be determined by the non-Federal interest.
(3) Special rule for designation of replacement capacity facility or site
(A) In general
Subject to such terms and conditions as the Secretary determines to be necessary or advisable, an agreement under paragraph (1)(B) for use permitted under paragraph (1)(A)(ii) shall reserve to the non-Federal interest—
(i) the right to submit to the Secretary for approval at a later date an alternative to the facility or site designated in the agreement for construction of replacement capacity; and
(ii) the right to construct the replacement capacity at the alternative facility or site at the expense of the non-Federal interest.
(B) Requirement
The Secretary shall not reject a site for the construction of replacement capacity under paragraph (1)(A)(ii) that is submitted by the non-Federal interest for approval by the Secretary before the date of execution of the agreement under paragraph (1)(B), or thereafter, unless the Secretary—
(i) determines that the site is environmentally unacceptable, geographically unacceptable, or technically unsound; and
(ii) provides a written basis for the determination under clause (i) to the non-Federal interest.
(4) Public comment
The Secretary shall afford the public an opportunity to comment on the determinations required under this subsection for a use permitted under paragraph (1)(A)(ii).
(b) Non-Federal use of disposal facilities
(1) In general
The Secretary—
(A) may permit the use of any dredged material disposal facility under the jurisdiction of, or managed by, the Secretary by a non-Federal interest if the Secretary determines that such use will not reduce the availability of the facility for project purposes; and
(B) may impose fees to recover capital, operation, and maintenance costs associated with such use.
(2) Use of fees
Notwithstanding
(c) Dredged material facility
(1) In general
The Secretary may enter into a partnership agreement under
(2) Performance
One or more of the parties to a partnership agreement under this subsection may perform the acquisition, design, construction, management, or operation of a dredged material processing, treatment, contaminant reduction, or disposal facility.
(3) Multiple projects
If appropriate, the Secretary may combine portions of separate water resources projects with appropriate combined cost-sharing among the various water resources projects in a partnership agreement for a facility under this subsection if the facility serves to manage dredged material from multiple water resources projects located in the geographic region of the facility.
(4) Specified Federal funding sources and cost sharing
(A) Specified Federal funding
A partnership agreement with respect to a facility under this subsection shall specify—
(i) the Federal funding sources and combined cost-sharing when applicable to multiple water resources projects; and
(ii) the responsibilities and risks of each of the parties relating to present and future dredged material managed by the facility.
(B) Management of sediments
(i) In general
A partnership agreement under this subsection may include the management of sediments from the maintenance dredging of Federal water resources projects that do not have partnership agreements.
(ii) Payments
A partnership agreement under this subsection may allow the non-Federal interest to receive reimbursable payments from the Federal Government for commitments made by the non-Federal interest for disposal or placement capacity at dredged material processing, treatment, contaminant reduction, or disposal facilities.
(C) Credit
A partnership agreement under this subsection may allow costs incurred by the non-Federal interest before execution of the partnership agreement to be credited in accordance with
(5) Credit
(A) Effect on existing agreements
Nothing in this subsection supersedes or modifies an agreement in effect on November 8, 2007, between the Federal Government and any non-Federal interest for the cost-sharing, construction, and operation and maintenance of a water resources project.
(B) Credit for funds
Subject to the approval of the Secretary and in accordance with law (including regulations and policies) in effect on November 8, 2007, a non-Federal interest for a water resources project may receive credit for funds provided for the acquisition, design, construction, management, or operation of a dredged material processing, treatment, contaminant reduction, or disposal facility to the extent the facility is used to manage dredged material from the project.
(C) Non-Federal interest responsibilities
A non-Federal interest entering into a partnership agreement under this subsection for a facility shall—
(i) be responsible for providing all necessary lands, easements, relocations, and rights-of-way associated with the facility; and
(ii) receive credit toward the non-Federal share of the cost of the project with respect to which the agreement is being entered into for those items.
(d) Public-private partnerships
(1) In general
The Secretary may carry out a program to evaluate and implement opportunities for public-private partnerships in the design, construction, management, or operation and maintenance of dredged material processing, treatment, contaminant reduction, or disposal facilities in connection with construction or maintenance of Federal navigation projects. If a non-Federal interest is a sponsor of the project, the Secretary shall consult with the non-Federal interest in carrying out the program with respect to the project.
(2) Private financing
(A) Agreements
In carrying out this subsection, the Secretary may enter into an agreement with a non-Federal interest with respect to a project, a private entity, or both for the acquisition, design, construction, management, or operation and maintenance of a dredged material processing, treatment, contaminant reduction, or disposal facility (including any facility used to demonstrate potential beneficial uses of dredged material) using funds provided in whole or in part by the private entity.
(B) Reimbursement
If any funds provided by a private entity are used to carry out a project under this subsection, the Secretary may reimburse the private entity over a period of time agreed to by the parties to the agreement through the payment of subsequent user fees. Such fees may include the payment of a disposal or tipping fee for placement of suitable dredged material at the facility.
(C) Amount of fees
User fees paid pursuant to subparagraph (B) shall be sufficient to repay funds contributed by the private entity plus a reasonable return on investment approved by the Secretary in cooperation with the non-Federal interest with respect to the project and the private entity.
(D) Federal share
The Federal share of such fees shall be equal to the percentage of the total cost that would otherwise be borne by the Federal Government as required pursuant to existing cost-sharing requirements, including
(E) Budget Act compliance
Any spending authority (as defined in
(
Editorial Notes
References in Text
The Budget Act, referred to in subsec. (d)(2)(E) heading, probably means the Congressional Budget Act of 1974, titles I through IX of
Codification
Section was enacted as part of the Water Resources Development Act of 1996, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2020—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3), (4).
2007—Subsec. (c).
Subsec. (d).
Subsec. (d)(1).
Subsec. (d)(2)(A).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2326b. Sediment management
(a) In general
The Secretary may enter into cooperation agreements with non-Federal interests with respect to navigation projects, or other appropriate non-Federal entities, for the development of long-term management strategies for controlling sediments at such projects.
(b) Contents of strategies
Each strategy developed under subsection (a) shall—
(1) include assessments of sediment rates and composition, sediment reduction options, dredging practices, long-term management of any dredged material disposal facilities, remediation of such facilities, and alternative disposal and reuse options;
(2) include a timetable for implementation of the strategy; and
(3) incorporate relevant ongoing planning efforts, including remedial action planning, dredged material management planning, harbor and waterfront development planning, and watershed management planning.
(c) Consultation
In developing strategies under subsection (a), the Secretary shall consult with interested Federal agencies, States, and Indian tribes and provide an opportunity for public comment.
(d) Dredged material disposal
(1) Study
The Secretary shall conduct a study to determine the feasibility of constructing and operating an underwater confined dredged material disposal site in the Port of New York-New Jersey that could accommodate as much as 250,000 cubic yards of dredged material for the purpose of demonstrating the feasibility of an underwater confined disposal pit as an environmentally suitable method of containing certain sediments.
(2) Report
The Secretary shall transmit to Congress a report on the results of the study conducted under paragraph (1), together with any recommendations of the Secretary that may be developed in a strategy under subsection (a).
(e) Great Lakes tributary model
(1) In general
In consultation and coordination with the Great Lakes States, the Secretary shall develop a tributary sediment transport model for each major river system or set of major river systems depositing sediment into a Great Lakes federally authorized commercial harbor, channel maintenance project site, or Area of Concern identified under the Great Lakes Water Quality Agreement of 1978. Such model may be developed as a part of a strategy developed under subsection (a).
(2) Requirements for models
In developing a tributary sediment transport model under this subsection, the Secretary shall build on data and monitoring information generated in earlier studies and programs of the Great Lakes and their tributaries.
(3) Report
Not later than December 31, 2003, the Secretary shall transmit to Congress a report on the Secretary's activities under this subsection.
(f) "Great Lakes States" defined
In this section, the term "Great Lakes States" means the States of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.
(g) Coastal mapping
The Secretary shall develop and carry out a plan for the recurring mapping of coastlines that are experiencing rapid change, including such coastlines in—
(1) Alaska;
(2) Hawaii; and
(3) any territory or possession of the United States.
(h) Authorization of appropriations
(1) In general
There is authorized to be appropriated to the Secretary to carry out this section $5,000,000 for each of fiscal years 1998 through 2001.
(2) Great Lakes tributary model
In addition to amounts made available under paragraph (1), there is authorized to be appropriated to carry out subsection (e) $5,000,000 for each of fiscal years 2002 through 2012.
(3) Coastal mapping
In addition to amounts made available under paragraph (1), there is authorized to be appropriated to carry out subsection (g) with respect to Alaska, Hawaii, and the territories and possessions of the United States, $10,000,000, to remain available until expended.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2020—Subsecs. (g), (h).
Subsec. (h)(3).
2007—Subsec. (g)(2).
2000—Subsec. (e)(3).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Dredged Material Management Plans
"(a)
"(b)
New York-New Jersey Harbor, New York and New Jersey
"(a)
"(b)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2326c. Reservoir sediment
(a) In general
Not later than 180 days after October 23, 2018, and after providing public notice, the Secretary shall, using available funds, accept services provided by a non-Federal interest or commercial entity for removal of sediment captured behind a dam owned or operated by the United States and under the jurisdiction of the Secretary for the purpose of restoring the authorized storage capacity of the project concerned.
(b) Requirements
In carrying out this section, the Secretary shall—
(1) review the services of the non-Federal interest or commercial entity to ensure that the services are consistent with the authorized purposes of the project concerned;
(2) ensure that the non-Federal interest or commercial entity will indemnify the United States for, or has entered into an agreement approved by the Secretary to address, any adverse impact to the dam as a result of such services; and
(3) require the non-Federal interest or commercial entity, prior to initiating the services and upon completion of the services, to conduct sediment surveys to determine the pre- and post-services sediment profile and sediment quality.
(c) Limitation
(1) In general
The Secretary may not accept services under subsection (a) if the Secretary, after consultation with the Chief of Engineers, determines that accepting the services is not advantageous to the United States.
(2) Report to Congress
If the Secretary makes a determination under paragraph (1), the Secretary shall provide to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate written notice describing the reasoning for the determination.
(d) Disposition of removed sediment
In exchange for providing services under subsection (a), a non-Federal interest or commercial entity is authorized to retain, use, recycle, sell, or otherwise dispose of any sediment removed in connection with the services and the Corps of Engineers may not seek any compensation for the value of the sediment.
(e) Congressional notification
Prior to accepting services provided by a non-Federal interest or commercial entity under this section, the Secretary shall provide to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate written notice of the acceptance of the services.
(f) Report to Congress
Not later than 3 years after October 23, 2018, 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 describing the results of the program under this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2018—Subsec. (a).
Subsec. (b)(4).
Subsec. (f).
2016—
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2326d. Alternative projects to maintenance dredging
The Secretary may enter into agreements to assume the operation and maintenance costs of an alternative project to maintenance dredging for a Federal navigation channel if the costs of the operation and maintenance of the alternative project, and any remaining costs necessary for maintaining the Federal navigation channel, are less than the costs of maintaining such channel without the alternative project.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2326e. Non-Federal interest dredging authority
(a) In general
The Secretary may permit a non-Federal interest to carry out, for an authorized navigation project (or a separable element of an authorized navigation project), such maintenance activities as are necessary to ensure that the project is maintained to not less than the minimum project dimensions.
(b) Cost limitations
Except as provided in this section and subject to the availability of appropriations, the costs incurred by a non-Federal interest in performing the maintenance activities described in subsection (a) shall be eligible for reimbursement, not to exceed an amount that is equal to the estimated Federal cost for the performance of the maintenance activities, with any reimbursement subject to the non-Federal interest complying with all Federal laws and regulations that would apply to such maintenance activities if carried out by the Secretary.
(c) Agreement
Before initiating maintenance activities under this section, a non-Federal interest shall enter into an agreement with the Secretary that specifies, for the performance of the maintenance activities, the terms and conditions that are acceptable to the non-Federal interest and the Secretary.
(d) Provision of equipment
In carrying out maintenance activities under this section, a non-Federal interest shall—
(1) provide equipment at no cost to the Federal Government; and
(2) hold and save the United States free from any and all damage that arises from the use of the equipment of the non-Federal interest, except for damage due to the fault or negligence of a contractor of the Federal Government.
(e) Reimbursement eligibility limitations
Costs that are eligible for reimbursement under this section are the costs of maintenance activities directly related to the costs associated with operation and maintenance of a dredge based on the lesser of—
(1) the costs associated with operation and maintenance of the dredge during the period of time that the dredge is being used in the performance of work for the Federal Government during a given fiscal year; or
(2) the actual fiscal year Federal appropriations that are made available for the portion of the maintenance activities for which the dredge was used.
(f) Audit
Not earlier than 5 years after December 16, 2016, the Secretary may conduct an audit on any maintenance activities for an authorized navigation project (or a separable element of an authorized navigation project) carried out under this section to determine if permitting a non-Federal interest to carry out maintenance activities under this section has resulted in—
(1) improved reliability and safety for navigation; and
(2) cost savings to the Federal Government.
(g) Termination of authority
The authority of the Secretary under this section terminates on the date that is 10 years after December 16, 2016.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2326f. Maintenance dredging data
(a) In general
The Secretary shall establish, maintain, and make publicly available a database on maintenance dredging carried out by the Secretary, which shall include information on maintenance dredging carried out by Federal and non-Federal vessels.
(b) Scope
The Secretary shall include in the database maintained under subsection (a), for each maintenance dredging project and contract, estimated and actual data on—
(1) the volume of dredged material removed;
(2) the initial cost estimate of the Corps of Engineers;
(3) the total cost, including a separate line item for all Federal costs associated with the disposal of dredged material;
(4) the party and vessel carrying out the work; and
(5) the number of private contractor bids received and the bid amounts, including bids that did not win the final contract award.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—Subsec. (b)(3).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 1002 of
§2326g. Beneficial use of dredged material; dredged material management plans
(a) National policy on the beneficial use of dredged material
(1) In general
It is the policy of the United States for the Corps of Engineers to maximize the beneficial use, in an environmentally acceptable manner, of suitable dredged material obtained from the construction or operation and maintenance of water resources development projects.
(2) Placement of dredged materials
(A) In general
In evaluating the placement of dredged material obtained from the construction or operation and maintenance of water resources development projects, the Secretary shall consider—
(i) the suitability of the dredged material for a full range of beneficial uses; and
(ii) the economic and environmental benefits, efficiencies, and impacts (including the effects on living coral) of using the dredged material for beneficial uses, including, in the case of beneficial use activities that involve more than one water resources development project, the benefits, efficiencies, and impacts that result from the combined activities.
(B) Calculation of Federal standard
(i) Determination
The economic benefits and efficiencies from the beneficial use of dredged material considered by the Secretary under subparagraph (A) shall be included in any determination relating to the "Federal standard" by the Secretary under section 335.7 of title 33, Code of Federal Regulations, for the placement or disposal of such material.
(ii) Reports
The Secretary shall submit to Congress—
(I) a report detailing the method and all of the factors utilized by the Corps of Engineers to determine the Federal standard referred to in clause (i); and
(II) for each evaluation under subparagraph (A), a report displaying the calculations for economic and environmental benefits and efficiencies from the beneficial use of dredged material (including, where appropriate, the utilization of alternative dredging equipment and dredging disposal methods) considered by the Secretary under such subparagraph for the placement or disposal of such material.
(C) Omitted
(
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.
Section is comprised of section 125(a) of div. AA of
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2326h. Five-year regional dredged material management plans
(1) In general
Not later than 1 year after December 27, 2020, and annually thereafter, the District Commander of each district of the Corps of Engineers that obtains dredged material through the construction or operation and maintenance of a water resources development project shall, at Federal expense, develop and submit to the Secretary a 5-year dredged material management plan in coordination with relevant State agencies and stakeholders.
(2) Scope
Each plan developed under this subsection shall include—
(A) a dredged material budget for each watershed or littoral system within the district;
(B) an estimate of the amount of dredged material likely to be obtained through the construction or operation and maintenance of all water resources development projects projected to be carried out within the district during the 5-year period following submission of the plan, and the estimated timing for obtaining such dredged material;
(C) an identification of potential water resources development projects projected to be carried out within the district during such 5-year period that are suitable for, or that require, the placement of dredged material, and an estimate of the amount of dredged material placement capacity of such projects;
(D) an evaluation of—
(i) the suitability of the dredged material for a full range of beneficial uses; and
(ii) the economic and environmental benefits, efficiencies, and impacts (including the effects on living coral) of using the dredged material for beneficial uses, including, in the case of beneficial use activities that involve more than one water resources development project, the benefits, efficiencies, and impacts that result from the combined activities;
(E) the district-wide goals for beneficial use of the dredged material, including any expected cost savings from aligning and coordinating multiple projects (including projects across Corps districts) in the use of the dredged material; and
(F) a description of potential beneficial use projects identified through stakeholder solicitation and coordination.
(3) Public comment
In developing each plan under this subsection, each District Commander shall provide notice and an opportunity for public comment, including a solicitation for stakeholders to identify beneficial use projects, in order to ensure, to the extent practicable, that beneficial use of dredged material is not foregone in a particular fiscal year or dredging cycle.
(4) Public availability
Upon submission of each plan to the Secretary under this subsection, each District Commander shall make the plan publicly available, including on a publicly available website.
(5) Transmission to Congress
As soon as practicable after receiving a plan under subsection (a), the Secretary shall transmit the plan to Congress.
(6) Regional sediment management plans
A plan developed under this section—
(A) shall be in addition to regional sediment management plans prepared under
(B) shall not be subject to the limitations in
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2327. Definition of rehabilitation for inland waterway projects
For purposes of laws relating to navigation on inland and intracoastal waterways of the United States, the term "rehabilitation" means—
(1) major project feature restoration—
(A) which consists of structural work on an inland navigation facility operated and maintained by the Corps of Engineers;
(B) which will significantly extend the physical life of the feature;
(C) which is economically justified by a benefit-cost analysis;
(D) which will take at least 2 years to complete; and
(E)(i) which is initially funded before October 1, 1994, and will require at least $5,000,000 in capital outlays; or
(ii) which is initially funded on or after such date and will require at least $20,000,000 in capital outlays; and
(2) structural modification of a major project component (not exhibiting reliability problems)—
(A) which will enhance the operational efficiency of such component or any other major component of the project by increasing benefits beyond the original project design; and
(B) which will require at least $1,000,000 in capital outlays.
Such term does not include routine or deferred maintenance. The dollar amounts referred to in paragraphs (1) and (2) shall be adjusted annually according to the economic assumption published each year as guidance in the Annual Program and Budget Request for Civil Works Activities of the Corps of Engineers.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2014—Par. (1)(E)(ii).
§2327a. Rehabilitation of Corps of Engineers constructed pump stations
(a) Definitions
In this section:
(1) Eligible pump station
The term "eligible pump station" means a pump station—
(A) that is a feature of—
(i) a federally authorized flood or coastal storm risk management project; or
(ii) an integrated flood risk reduction system that includes a federally authorized flood or coastal storm risk management project; and
(B) the failure of which the Secretary has determined would demonstrably impact the function of the federally authorized flood or coastal storm risk management project.
(2) Rehabilitation
(A) In general
The term "rehabilitation", with respect to an eligible pump station, means to address a major deficiency of the eligible pump station caused by long-term degradation of the foundation, construction materials, or engineering systems or components of the eligible pump station.
(B) Inclusions
The term "rehabilitation", with respect to an eligible pump station, includes—
(i) the incorporation into the eligible pump station of—
(I) current design standards;
(II) efficiency improvements; and
(III) associated drainage; and
(ii) increasing the capacity of the eligible pump station, subject to the condition that the increase shall—
(I) significantly decrease the risk of loss of life and property damage; or
(II) decrease total lifecycle rehabilitation costs for the eligible pump station.
(b) Authorization
The Secretary may carry out rehabilitation of an eligible pump station, if the Secretary determines that—
(1) the eligible pump station has a major deficiency; and
(2) the rehabilitation is feasible.
(c) Cost sharing
The non-Federal interest for the eligible pump station shall—
(1) provide 35 percent of the cost of rehabilitation of an eligible pump station carried out under this section; and
(2) provide all land, easements, rights-of-way, and necessary relocations associated with the rehabilitation described in subparagraph (A), at no cost to the Federal Government.
(d) Agreement required
The rehabilitation of an eligible pump station pursuant to this section shall be initiated only after a non-Federal interest has entered into a binding agreement with the Secretary—
(1) to pay the non-Federal share of the costs of rehabilitation under subsection (c); and
(2) to pay 100 percent of the operation and maintenance costs of the rehabilitated eligible pump station, in accordance with regulations promulgated by the Secretary.
(e) Treatment
The rehabilitation of an eligible pump station pursuant to this section shall not be considered to be a separable element of the associated flood risk management project constructed by the Corps of Engineers.
(f) Authorization of appropriations
There is authorized to be appropriated to carry out this section $60,000,000, to remain available until expended.
(g) Prioritization
To the maximum extent practicable, the Secretary shall prioritize the rehabilitation of eligible pump stations under this section that benefit economically disadvantaged communities, as defined by the Secretary under section 160 of the Water Resources Development Act of 2020 (
(
Editorial Notes
References in Text
Section 160 of the Water Resources Development Act of 2020, referred to in subsec. (g), is section 160 of div. AA of
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)(1).
Subsec. (b).
Subsec. (g).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2328. Challenge cost-sharing program for management of recreation facilities
(a) In general
The Secretary is authorized to develop and implement a program to share the cost of managing recreation facilities and natural resources at water resource development projects under the Secretary's jurisdiction.
(b) Cooperative agreements
To implement the program under this section, the Secretary is authorized to enter into cooperative agreements with non-Federal public and private entities to provide for operation and management of recreation facilities and natural resources at civil works projects under the Secretary's jurisdiction where such facilities and resources are being maintained at complete Federal expense.
(c) User fees
(1) Collection of fees
(A) In general
The Secretary may allow a non-Federal public entity that has entered into an agreement pursuant to subsection (b) to collect user fees for the use of developed recreation sites and facilities, whether developed or constructed by that entity or the Department of the Army.
(B) Use of visitor reservation services
A non-Federal public entity described in subparagraph (A) may use, to manage fee collections and reservations under this section, any visitor reservation service that the Secretary has provided for by contract or interagency agreement, subject to such terms and conditions as the Secretary determines to be appropriate.
(2) Use of fees
A non-Federal public entity that collects user fees under paragraph (1)—
(A) may retain up to 100 percent of the fees collected, as determined by the Secretary; and
(B) notwithstanding
(3) Terms and conditions
The authority of a non-Federal public entity under this subsection shall be subject to such terms and conditions as the Secretary determines necessary to protect the interests of the United States.
(d) Contributions
For purposes of carrying out this section the Secretary may accept contributions of funds, materials, and services from non-Federal public and private entities. Any funds received by the Secretary under this section shall be deposited into the account in the Treasury of the United States entitled "Contributions and Advances, Rivers and Harbors, Corps of Engineers (8862)" and shall be available until expended to carry out the purposes of this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsecs. (c), (d).
1996—Subsec. (c).
Recreation Partnership Initiative
"(a)
"(b)
"(1)
"(2)
"(3)
"(4)
"(c)
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 3 of
§2328a. Special use permits
(a) Special use permits
(1) In general
The Secretary may issue special permits for uses such as group activities, recreation events, motorized recreation vehicles, and such other specialized recreation uses as the Secretary determines to be appropriate, subject to such terms and conditions as the Secretary determines to be in the best interest of the Federal Government.
(2) Fees
(A) In general
In carrying out this subsection, the Secretary may—
(i) establish and collect fees associated with the issuance of the permits described in paragraph (1); or
(ii) accept in-kind services in lieu of those fees.
(B) Outdoor recreation equipment
The Secretary may establish and collect fees for the provision of outdoor recreation equipment and services for activities described in paragraph (1) at public recreation areas located at lakes and reservoirs operated by the Corps of Engineers.
(C) Use of fees
Any fees generated pursuant to this subsection shall be—
(i) retained at the site collected; and
(ii) available for use, without further appropriation, solely for administering the special permits under this subsection and carrying out related operation and maintenance activities at the site at which the fees are collected.
(b) Cooperative management
(1) Program
(A) In general
Subject to subparagraph (B), the Secretary may enter into an agreement with a State or local government to provide for the cooperative management of a public recreation area if—
(i) the public recreation area is located—
(I) at a lake or reservoir operated by the Corps of Engineers; and
(II) adjacent to or near a State or local park or recreation area; and
(ii) the Secretary determines that cooperative management between the Corps of Engineers and a State or local government agency of a portion of the Corps of Engineers recreation area or State or local park or recreation area will allow for more effective and efficient management of those areas.
(B) Restriction
The Secretary may not transfer administration responsibilities for any public recreation area operated by the Corps of Engineers.
(2) Acquisition of goods and services
The Secretary may acquire from or provide to a State or local government with which the Secretary has entered into a cooperative agreement under paragraph (1) goods and services to be used by the Secretary and the State or local government in the cooperative management of the areas covered by the agreement.
(3) Administration
The Secretary may enter into 1 or more cooperative management agreements or such other arrangements as the Secretary determines to be appropriate, including leases or licenses, with non-Federal interests to share the costs of operation, maintenance, and management of recreation facilities and natural resources at recreation areas that are jointly managed and funded under this subsection.
(c) Use of funds
(1) In general
If the Secretary determines that it is in the public interest for purposes of enhancing recreation opportunities at Corps of Engineers water resources development projects, the Secretary may use funds made available to the Secretary to support activities carried out by State, local, and tribal governments and such other public or private nonprofit entities as the Secretary determines to be appropriate.
(2) Cooperative agreements
Any use of funds pursuant to this subsection shall be carried out through the execution of a cooperative agreement, which shall contain such terms and conditions as the Secretary determines to be necessary in the public interest.
(
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.
Section is comprised of section 1047 of
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2329. International outreach program
(a) Authorization
(1) In general
The Secretary may engage in activities to inform the United States of technological innovations abroad that could significantly improve water resources development in the United States.
(2) Inclusions
Activities under paragraph (1) may include—
(A) development, monitoring, assessment, and dissemination of information about foreign water resources projects that could significantly improve water resources development in the United States;
(B) research, development, training, and other forms of technology transfer and exchange; and
(C) offering technical services that cannot be readily obtained in the private sector to be incorporated into water resources projects if the costs for assistance will be recovered under the terms of each project.
(b) Cooperation
The Secretary may carry out the provisions of this section in cooperation with Federal departments and agencies, State and local agencies, authorities, institutions, corporations (profit or nonprofit), foreign governments, or other organizations.
(c) Funding
The funds to carry out the provisions of this section shall include funds deposited in a special account with the Secretary of the Treasury for such purposes by any cooperating entity or organization according to cost-sharing agreements proscribed by the Secretary. Reimbursement for services provided under this section shall be credited to the appropriation concerned.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsec. (a).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 3 of
§2330. Aquatic ecosystem restoration
(a) General authority
(1) In general
The Secretary may carry out a project to restore and protect an aquatic ecosystem or estuary if the Secretary determines that the project—
(A)(i) will improve the quality of the environment and is in the public interest; or
(ii) will improve the elements and features of an estuary (as defined in
(B) is cost-effective.
(2) Dam removal
A project under this section may include removal of a dam.
(3) Anadromous fish habitat and passage
(A) Measures
A project under this section may include measures to improve habitat or passage for anadromous fish, including—
(i) installing fish bypass structures on small water diversions;
(ii) modifying tide gates; and
(iii) restoring or reconnecting floodplains and wetlands that are important for anadromous fish habitat or passage.
(B) Benefits
A project that includes measures under this paragraph shall be formulated to maximize benefits for the anadromous fish species benefitted by the project.
(b) Cost sharing
(1) In general
Non-Federal interests shall provide 35 percent of the cost of construction of any project carried out under this section, including provision of all lands, easements, rights-of-way, and necessary relocations.
(2) Form
Before October 1, 2003, the Federal share of the cost of a project under this section may be provided in the form of reimbursements of project costs.
(c) Agreements
(1) In general
Construction of a project under this section shall be initiated only after a non-Federal interest has entered into a binding agreement with the Secretary to pay the non-Federal share of the costs of construction required by this section and to pay 100 percent of any operation, maintenance, and replacement and rehabilitation costs with respect to the project in accordance with regulations prescribed by the Secretary.
(2) Nonprofit entities
Notwithstanding
(d) Cost limitation
Not more than $10,000,000 in Federal funds may be allotted under this section for a project at any single locality.
(e) Use of natural and nature-based features
In carrying out a project to restore and protect an aquatic ecosystem or estuary under subsection (a), the Secretary shall consider, and may include, with the consent of the non-Federal interest, a natural feature or nature-based feature, as such terms are defined in
(f) Funding
There is authorized to be appropriated to carry out this section $62,500,000 for each fiscal year.
(g) Prioritization
The Secretary shall give projects that include measures described in subsection (a)(3) equal priority for implementation as other projects under this section.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1996, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2020—Subsec. (a)(3).
Subsec. (g).
2018—Subsec. (e).
Subsec. (f).
2014—Subsec. (d).
2007—Subsec. (a).
"(a)
"(1) will improve the quality of the environment and is in the public interest; and
"(2) is cost-effective."
Subsec. (e).
1999—Subsec. (b).
Subsec. (c).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2330a. Monitoring ecosystem restoration
(a) In general
In conducting a feasibility study for a project (or a component of a project) for ecosystem restoration, the Secretary shall ensure that the recommended project includes, as an integral part of the project, a plan for monitoring the success of the ecosystem restoration.
(b) Monitoring plan
The monitoring plan shall—
(1) include a description of the monitoring activities to be carried out, the criteria for ecosystem restoration success, and the estimated cost and duration of the monitoring; and
(2) specify that the monitoring shall continue until such time as the Secretary determines that the criteria for ecosystem restoration success will be met.
(c) Cost share
For a period of 10 years from completion of construction of a project (or a component of a project) for ecosystem restoration, the Secretary shall consider the cost of carrying out the monitoring as a project cost. If the monitoring plan under subsection (b) requires monitoring beyond the 10-year period, the cost of monitoring shall be a non-Federal responsibility.
(d) Inclusions
A monitoring plan under subsection (b) shall include a description of—
(1) the types and number of restoration activities to be conducted;
(2) the physical action to be undertaken to achieve the restoration objectives of the project;
(3) the functions and values that will result from the restoration plan; and
(4) a contingency plan for taking corrective actions in cases in which monitoring demonstrates that restoration measures are not achieving ecological success in accordance with criteria described in the monitoring plan.
(e) Conclusion of operation and maintenance responsibility
The responsibility of a non-Federal interest for operation and maintenance of the nonstructural and nonmechanical elements of a project, or a component of a project, for ecosystem restoration shall cease 10 years after the date on which the Secretary makes a determination of success under subsection (b)(2).
(f) Federal obligations
The Secretary is not responsible for the operation or maintenance of any components of a project with respect to which a non-Federal interest is released from obligations under subsection (e).
(
Editorial Notes
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.
Amendments
2016—Subsecs. (d) to (f).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2330b. Fish hatcheries
(a) In general
Notwithstanding any other provision of law, the Secretary may operate a fish hatchery for the purpose of restoring a population of fish species located in the region surrounding the fish hatchery that is listed as a threatened species or an endangered species under the Endangered Species Act of 1973 (
(b) Costs
A non-Federal entity, another Federal agency, or a group of non-Federal entities or other Federal agencies shall be responsible for 100 percent of the additional costs associated with managing a fish hatchery for the purpose described in subsection (a) that are not authorized as of December 16, 2016, for the fish hatchery.
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (a), is
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2330c. Aquatic ecosystem restoration
(a) Definition of eligible entity
In this section, the term "eligible entity" means—
(1) any State, Indian Tribe, irrigation district, or water district;
(2) any State, regional, or local authority, the members of which include 1 or more organizations with water or power delivery authority;
(3) any other entity or organization that owns a facility that is eligible for upgrade, modification or removal under this section;
(4) any nonprofit conservation organization, acting in partnership with any entity listed in paragraphs (1) through (3), with respect to a project involving land or infrastructure owned by the entity; and
(5) an agency established under State law for the joint exercise of powers or a combination of entities described in paragraphs (1) through (4).
(b) General authority
(1) In general
Subject to the requirements of this section and paragraph (2), on request of any eligible entity the Secretary may negotiate and enter into an agreement on behalf of the United States to fund the design, study, and construction of an aquatic ecosystem restoration and protection project in a Reclamation State if the Secretary determines that the project is likely to improve the health of fisheries, wildlife or aquatic habitat, including through habitat restoration and improved fish passage via the removal or bypass of barriers to fish passage.
(2) Exception
With respect to an aquatic ecosystem restoration and protection project under this section that removes a dam or modifies a dam in a manner that reduces storage or diversion capacity, the Secretary may only negotiate and enter into an agreement to fund—
(A) the design or study of such project if the Secretary has received consent from the owner of the applicable dam; or
(B) the construction of such project if the Secretary—
(i) identifies any eligible entity that receives water or power from the facility that is under consideration for removal or modification at the time of the request;
(ii) notifies each eligible entity identified in clause (i) that the dam removal or modification project has been requested; and
(iii) does not receive, by the date that is 120 days after the date on which all eligible entities have been notified under clause (ii), written objection from 1 or more eligible entities that collectively receive 1/3 or more of the water or power delivered from the facility that is under consideration for removal or modification at the time of the request.
(c) Requirements
(1) In general
The Secretary shall accept and consider public comment prior to initiating design, study or development of a project under this section.
(2) Preconditions
Construction of a project under this section shall be a voluntary project initiated only after—
(A) an eligible entity has entered into an agreement with the Secretary to pay no less than 35 percent of the costs of project construction;
(B) an eligible entity has entered an agreement to pay 100 percent of any operation, maintenance, and replacement and rehabilitation costs with respect to the project;
(C) the Secretary determines the proposed project—
(i) will not result in an unmitigated adverse impact on fulfillment of existing water delivery obligations consistent with historical operations and applicable contracts;
(ii) will not result in an unmitigated adverse effect on the environment;
(iii) is consistent with the responsibilities of the Secretary—
(I) in the role as trustee for federally recognized Indian Tribes; and
(II) to ensure compliance with any applicable international and Tribal treaties and agreements and interstate compacts and agreements;
(iv) is in the financial interest of the United States based on a determination that the project advances Federal objectives including environmental enhancement objectives in a Reclamation State; and
(v) complies with all applicable Federal and State law, including environmental laws; and
(D) the Secretary has complied with all applicable environmental laws, including—
(i) the National Environmental Policy Act of 1969 (
(ii) the Endangered Species Act of 1973 (
(iii) subtitle III of title 54.
(d) Funding
There is authorized to be appropriated to carry out this section $15,000,000 for each of fiscal years 2022 through 2026, to remain available until expended.
(e) Effects
(1) In general
Nothing in this section supersedes or limits any existing authority provided, or responsibility conferred, by any provision of law.
(2) Effect on state water law
Nothing in this section preempts or affects any—
(A) State water law; or
(B) interstate compact governing water.
(f) Compliance required
The Secretary shall comply with applicable State water laws in carrying out this section.
(g) Priority for projects providing regional benefits and assistance for aging assets
When funding projects under this section, the Secretary shall prioritize projects that—
(1) are jointly developed and supported by a diverse array of stakeholders including representatives of irrigated agricultural production, hydroelectric production, potable water purveyors and industrial water users, Indian Tribes, commercial fishing interests, and nonprofit conservation organizations;
(2) affect water resources management in 2 or more river basins while providing regional benefits not limited to fisheries restoration;
(3) are a component of a broader strategy or plan to replace aging facilities with 1 or more alternate facilities providing similar benefits; and
(4) contribute to the restoration of anadromous fish species listed under the Endangered Species Act of 1973 (
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (c)(2)(D)(i), is
The Endangered Species Act of 1973, referred to in subsecs. (c)(2)(D)(ii) and (g)(4), is
Codification
Section was enacted as part of Consolidated Appropriations Act, 2021, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Statutory Notes and Related Subsidiaries
Definitions
"(1)
"(2)
"(3)
[The first paragraph of
§2330d. Public recreational amenities in ecosystem restoration projects
At the request of a non-Federal interest, the Secretary is authorized to study the incorporation of public recreational amenities, including facilities for hiking, biking, walking, and waterborne recreation, into a project for ecosystem restoration, including a project carried out under
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2331. Use of continuing contracts for construction of certain projects
(a) In general
Notwithstanding any other provision of law, the Secretary shall not implement a fully allocated funding policy with respect to a water resource project if initiation of construction has occurred but sufficient funds are not available to complete the project.
(b) Continuing contracts
The Secretary shall enter into a continuing contract for a project described in subsection (a).
(c) Initiation of construction clarified
For the purposes of this section, initiation of construction for a project occurs on the date of enactment of an Act that appropriates funds for the project from 1 of the following appropriation accounts:
(1) Construction, General.
(2) Operation and Maintenance, General.
(3) Flood Control, Mississippi River and Tributaries.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1999, 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
§2331a. Initiating work on separable elements
With respect to a water resources development project that has received construction funds in the previous 6-year period, for purposes of initiating work on a separable element of the project—
(1) no new start or new investment decision shall be required; and
(2) the work shall be treated as ongoing work.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2332. Shoreline and riverine protection and restoration
(a) In general
The Secretary may carry out studies and projects to—
(1) reduce flood and hurricane and storm damage hazards; or
(2) restore the natural functions and values of rivers and shorelines throughout the United States.
(b) Studies and projects
(1) Authority
(A) Studies
In carrying out subsection (a), the Secretary may carry out studies to identify appropriate measures for—
(i) the reduction of flood and hurricane and storm damage hazards, including measures for erosion mitigation and bank stabilization; or
(ii) the conservation and restoration of the natural functions and values of rivers and shorelines.
(B) Projects
Subject to subsection (f)(2), in carrying out subsection (a), the Secretary may design and implement projects described in subsection (a).
(2) Consultation and coordination
The studies and projects carried out under this section shall be conducted, to the maximum extent practicable, in consultation and coordination with the Federal Emergency Management Agency and other appropriate Federal agencies, and in consultation and coordination with appropriate State and local agencies and tribes.
(3) Nonstructural approaches
The studies and projects shall emphasize, to the maximum extent practicable and appropriate, nonstructural approaches to preventing or reducing flood and hurricane and storm damages, including the use of natural features or nature-based features.
(4) Participation
The studies and projects shall be conducted, to the maximum extent practicable, in cooperation with State and local agencies and tribes to ensure the coordination of local flood and hurricane and storm damage reduction or riverine, shoreline, and wetland restoration studies with projects that conserve, restore, and manage hydrologic and hydraulic regimes and restore the natural functions and values of floodplains and coastal barriers.
(c) Cost-sharing requirements
(1) Studies
Studies conducted under this section shall be subject to cost sharing in accordance with
(2) Environmental restoration and nonstructural projects
(A) In general
Design and construction of a project under this section that includes a nonstructural measure, a natural feature or nature-based feature, or an environmental restoration measure, shall be subject to cost sharing in accordance with
(B) Items provided by non-Federal interests
The non-Federal interests shall provide all land, easements, rights-of-way, dredged material disposal areas, and relocations necessary for such projects.
(C) Credit
The value of such land, easements, rights-of-way, dredged material disposal areas, and relocations shall be credited toward the payment required under this paragraph.
(3) Structural flood control or hurricane and storm damage reduction projects
Any structural flood control or hurricane and storm damage reduction projects carried out under this section shall be subject to cost sharing in accordance with
(4) Operation and maintenance
The non-Federal interests shall be responsible for all costs associated with operating, maintaining, replacing, repairing, and rehabilitating all projects carried out under this section.
(d) Project justification
Notwithstanding any requirement for economic justification established under
(1) will significantly reduce potential flood, hurricane and storm, or erosion damages;
(2) will improve the quality of the environment; and
(3) is justified considering all costs and beneficial outputs of the project.
(e) Areas for Examination
(1) In general
In carrying out this section, the Secretary shall examine appropriate locations, including—
(A) Pima County, Arizona, at Paseo De Las Iglesias and Rillito River;
(B) Coachella Valley, Riverside County, California;
(C) Los Angeles and San Gabriel Rivers, California;
(D) Murrieta Creek, California;
(E) Napa River Valley watershed, California, at Yountville, St. Helena, Calistoga, and American Canyon;
(F) Santa Clara basin, California, at Upper Guadalupe River and Tributaries, San Francisquito Creek, and Upper Penitencia Creek;
(G) Pond Creek, Kentucky;
(H) Red River of the North, Minnesota, North Dakota, and South Dakota;
(I) Connecticut River, New Hampshire;
(J) Pine Mount Creek, New Jersey;
(K) Southwest Valley, Albuquerque, New Mexico;
(L) Upper Delaware River, New York;
(M) Briar Creek, North Carolina;
(N) Chagrin River, Ohio;
(O) Mill Creek, Cincinnati, Ohio;
(P) Tillamook County, Oregon;
(Q) Willamette River basin, Oregon;
(R) Blair County, Pennsylvania, at Altoona and Frankstown Township;
(S) Delaware River, Pennsylvania;
(T) Schuylkill River, Pennsylvania;
(U) Providence County, Rhode Island;
(V) Shenandoah River, Virginia;
(W) Lincoln Creek, Wisconsin;
(X) Perry Creek, Iowa;
(Y) Lester, St. Louis, East Savanna, and Floodwood Rivers, Duluth, Minnesota;
(Z) Lower Hudson River and tributaries, New York;
(AA) Susquehanna River watershed, Bradford County, Pennsylvania;
(BB) Clear Creek, Harris, Galveston, and Brazoria Counties, Texas;
(CC) Ascension Parish, Louisiana;
(DD) East Baton Rouge Parish, Louisiana;
(EE) Iberville Parish, Louisiana;
(FF) Livingston Parish, Louisiana; and
(GG) Pointe Coupee Parish, Louisiana.
(2) Priority projects
In carrying out this section, the Secretary shall prioritize projects for the following locations:
(A) Delaware beaches and watersheds, Delaware.
(B) Louisiana Coastal Area, Louisiana.
(C) Great Lakes Shores and Watersheds.
(D) Oregon Coastal Area and Willamette River basin, Oregon.
(E) Upper Missouri River Basin.
(F) Ohio River Tributaries and their watersheds, West Virginia.
(G) Chesapeake Bay watershed and Maryland beaches, Maryland.
(H) City of Southport, North Carolina.
(I) Maumee River, Ohio.
(J) Los Angeles and San Gabriel Rivers, California.
(K) Kentucky River and its tributaries and watersheds.
(f) Procedure
(1) All projects
The Secretary shall not implement any project under this section until—
(A) the Secretary submits to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a written notification describing the project and the determinations made under subsection (d)(1); and
(B) 21 calendar days have elapsed after the date on which the notification was received by the committees.
(2) Projects requiring specific authorization
If the Federal share of the cost to design and construct a project under this section exceeds $15,000,000, the Secretary may only carry out the project if Congress enacts a law authorizing the Secretary to carry out the project.
(g) Definitions
In this section:
(1) Economically disadvantaged community
The term "economically disadvantaged community" has the meaning given the term as defined by the Secretary under section 160 of the Water Resources Development Act of 2020 (
(2) Natural feature; nature-based feature
The terms "natural feature" and "nature-based feature" have the meanings given those terms in
(
Editorial Notes
References in Text
Section 160 of the Water Resources Development Act of 2020, referred to in subsec. (g)(1), is section 160 of div. AA of
Codification
Section was enacted as part of the Water Resources Development Act of 1999, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—
Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(2)(A).
Subsec. (c)(3).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (f)(2).
Subsec. (g).
Subsec. (h).
Subsec. (i).
2007—Subsec. (e)(23).
Subsec. (e)(29) to (33).
Subsec. (i)(1).
"(A) $20,000,000 for fiscal year 2001;
"(B) $30,000,000 for fiscal year 2002; and
"(C) $50,000,000 for each of fiscal years 2003 through 2005".
2000—Subsec. (e)(24) to (28).
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal Emergency Management Agency, see
For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2333. Irrigation diversion protection and fisheries enhancement assistance
(a) In general
The Secretary may provide technical planning and design assistance to non-Federal interests and may conduct other site-specific studies to formulate and evaluate fish screens, fish passages devices, and other measures to decrease the incidence of juvenile and adult fish inadvertently entering irrigation systems.
(b) Cooperation
Measures under subsection (a)—
(1) shall be developed in cooperation with Federal and State resource agencies; and
(2) shall not impair the continued withdrawal of water for irrigation purposes.
(c) Priority
In providing assistance under subsection (a), the Secretary shall give priority based on—
(1) the objectives of the Endangered Species Act of 1973 (
(2) cost-effectiveness; and
(3) the potential for reducing fish mortality.
(d) Non-Federal share
(1) In general
The non-Federal share of the cost of measures under subsection (a) shall be 50 percent.
(2) In-kind contributions
Not more than 50 percent of the non-Federal contribution may be made through the provision of services, materials, supplies, or other in-kind contributions.
(e) No construction activity
This section does not authorize any construction activity.
(f) Report
Not later than 2 years after August 17, 1999, the Secretary shall submit to Congress a report on—
(1) fish mortality caused by irrigation water intake devices;
(2) appropriate measures to reduce fish mortality;
(3) the extent to which those measures are currently being employed in arid States;
(4) the construction costs associated with those measures; and
(5) the appropriate Federal role, if any, to encourage the use of those measures.
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (c)(1), is
Codification
Section was enacted as part of the Water Resources Development Act of 1999, 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
§2334. Innovative technologies for watershed restoration
The Secretary shall examine using, and, if appropriate, encourage the use of, innovative treatment technologies, including membrane technologies, for watershed and environmental restoration and protection projects involving water quality.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1999, 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
§2335. Coastal aquatic habitat management
(a) In general
The Secretary may cooperate with the Secretaries of Agriculture and the Interior, the Administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, other appropriate Federal, State, and local agencies, and affected private entities, in the development of a management strategy to address problems associated with toxic microorganisms and the resulting degradation of ecosystems in the tidal and nontidal wetlands and waters of the United States.
(b) Assistance
As part of the management strategy, the Secretary may provide planning, design, and other technical assistance to each participating State in the development and implementation of nonregulatory measures to mitigate environmental problems and restore aquatic resources.
(c) Cost sharing
The Federal share of the cost of measures undertaken under this section shall not exceed 65 percent.
(d) Operation and maintenance
The non-Federal share of operation and maintenance costs for projects constructed with assistance provided under this section shall be 100 percent.
(e) Authorization of appropriations
There is authorized to be appropriated to carry out this section $7,000,000 for the period beginning with fiscal year 2000.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 1999, 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
§2336. Abandoned and inactive noncoal mine restoration
(a) In general
The Secretary may provide technical, planning, and design assistance to Federal and non-Federal interests for carrying out projects to address water quality problems caused by drainage and related activities from abandoned and inactive noncoal mines.
(b) Specific measures
Assistance provided under subsection (a) may be in support of projects for the purposes of—
(1) managing drainage from abandoned and inactive noncoal mines;
(2) restoring and protecting streams, rivers, wetlands, other waterbodies, and riparian areas degraded by drainage from abandoned and inactive noncoal mines; and
(3) demonstrating management practices and innovative and alternative treatment technologies to minimize or eliminate adverse environmental effects associated with drainage from abandoned and inactive noncoal mines.
(c) Non-Federal share
The non-Federal share of the cost of assistance under subsection (a) shall be 50 percent, except that the Federal share with respect to projects located on land owned by the United States, on land held in trust by the Secretary of the Interior on behalf of, and for the benefit of, an Indian Tribe, or on restricted land of any Indian Tribe, shall be 100 percent.
(d) Effect on authority of Secretary of the Interior
Nothing in this section affects the authority of the Secretary of the Interior under title IV of the Surface Mining Control and Reclamation Act of 1977 (
(e) Technology database for reclamation of abandoned mines
The Secretary may provide assistance to non-Federal and nonprofit entities to develop, manage, and maintain a database of conventional and innovative, cost-effective technologies for reclamation of abandoned and inactive noncoal mine sites. Such assistance shall be provided through the Restoration of Abandoned Mine Sites Program managed by the Albuquerque District Office of the Corps of Engineers.
(f) Authorization of appropriations
There is authorized to be appropriated to carry out this section $50,000,000.
(
Editorial Notes
References in Text
The Surface Mining Control and Reclamation Act of 1977, referred to in subsec. (d), is
Codification
Section was enacted as part of the Water Resources Development Act of 1999, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2022—Subsec. (c).
Subsec. (e).
Subsec. (f).
2020—Subsec. (f).
2007—Subsec. (f).
2003—Subsec. (f).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2337. Property protection program
(a) In general
The Secretary may carry out a program to reduce vandalism and destruction of property at water resources development projects under the jurisdiction of the Department of the Army.
(b) Provision of rewards
In carrying out the program, the Secretary may provide rewards (including cash rewards) to individuals who provide information or evidence leading to the arrest and prosecution of individuals causing damage to Federal property.
(c) Authorization of appropriations
There is authorized to be appropriated to carry out this section $500,000 for fiscal year 2001 and each fiscal year thereafter.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, 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
§2338. Reburial and conveyance authority
(a) Definition of Indian tribe
In this section, the term "Indian tribe" has the meaning given the term in
(b) Reburial
(1) Reburial areas
In consultation with affected Indian tribes, the Secretary may identify and set aside areas at civil works projects of the Department of the Army that may be used to rebury Native American remains that—
(A) have been discovered on project land; and
(B) have been rightfully claimed by a lineal descendant or Indian tribe in accordance with applicable Federal law.
(2) Reburial
In consultation with and with the consent of the lineal descendant or the affected Indian tribe, the Secretary may recover and rebury, at Federal expense, the remains at the areas identified and set aside under subsection (b)(1).
(c) Conveyance authority
(1) In general
Subject to paragraph (2), notwithstanding any other provision of law, the Secretary may convey to an Indian tribe for use as a cemetery an area at a civil works project that is identified and set aside by the Secretary under subsection (b)(1).
(2) Retention of necessary property interests
In carrying out paragraph (1), the Secretary shall retain any necessary right-of-way, easement, or other property interest that the Secretary determines to be necessary to carry out the authorized purposes of the project.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, 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
§2339. Assistance programs
(a) Conservation and recreation management
To further training and educational opportunities about water resources development projects under the jurisdiction of the Secretary, the Secretary may enter into cooperative agreements with non-Federal public and nonprofit entities for services relating to natural resources conservation or recreation management.
(b) Rural community assistance
In carrying out studies and projects under the jurisdiction of the Secretary, the Secretary may enter into cooperative agreements with multistate regional private nonprofit rural community assistance entities for services, including water resource assessment, community participation, planning, development, and management activities.
(c) Youth service and conservation corps organizations
The Secretary, to the maximum extent practicable, shall enter into cooperative agreements with qualified youth service and conservation corps organizations for services relating to projects under the jurisdiction of the Secretary and shall do so in a manner that ensures the maximum participation and opportunities for such organizations.
(d) Cooperative agreements
A cooperative agreement entered into under this section shall not be considered to be, or treated as being, a cooperative agreement to which
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsecs. (c), (d).
2014—Subsec. (a).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2339a. Cooperative agreements with Indian tribes
The Secretary may enter into a cooperative agreement with an Indian tribe (or a designated representative of an Indian tribe) to carry out authorized activities of the Corps of Engineers to protect fish, wildlife, water quality, and cultural resources.
(
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
§2340. Revision of project partnership agreement; cost sharing
(a) Federal allocation
Upon authorization by law of an increase in the maximum amount of Federal funds that may be allocated for a water resources project or an increase in the total cost of a water resources project authorized to be carried out by the Secretary, the Secretary shall enter into a revised partnership agreement for the project to take into account the change in Federal participation in the project.
(b) Cost sharing
An increase in the maximum amount of Federal funds that may be allocated for a water resources project, or an increase in the total cost of a water resources project, authorized to be carried out by the Secretary shall not affect any cost-sharing requirement applicable to the project.
(c) Cost estimates
The estimated Federal and non-Federal costs of water resources projects authorized to be carried out by the Secretary before, on, or after November 8, 2007, are for informational purposes only and shall not be interpreted as affecting the cost-sharing responsibilities established by law.
(
Editorial Notes
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
Reference to Partnership Agreement Deemed Reference to Cooperation Agreement
Reference to partnership agreement deemed to be reference to cooperation agreement, see section 2003(f)(3) of
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2341. Expedited actions for emergency flood damage reduction
The Secretary shall expedite any authorized planning, design, and construction of any project for flood damage reduction for an area that, within the preceding 5 years, has been subject to flooding that resulted in the loss of life and caused damage of sufficient severity and magnitude to warrant a declaration of a major disaster by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (
(
Editorial Notes
References in Text
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in text, is
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
§2341a. Prioritization
(a) Prioritization of hurricane and storm damage risk reduction efforts
(1) Priority
For authorized projects and ongoing feasibility studies with a primary purpose of hurricane and storm damage risk reduction, the Secretary shall give funding priority to projects and ongoing studies that—
(A) address an imminent threat to life and property;
(B) prevent storm surge from inundating populated areas;
(C) restore or prevent the loss of coastal wetlands that help reduce the impact of storm surge;
(D) protect emergency hurricane evacuation routes or shelters;
(E) prevent adverse impacts to publicly owned or funded infrastructure and assets;
(F) minimize disaster relief costs to the Federal Government; and
(G) address hurricane and storm damage risk reduction in an area for which the President declared a major disaster in accordance with
(2) Expedited consideration of currently authorized projects
Not later than 180 days after December 16, 2016, the Secretary shall—
(A) 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 list of all—
(i) ongoing hurricane and storm damage reduction feasibility studies that have signed feasibility cost-share agreements and have received Federal funds since 2009; and
(ii) authorized hurricane and storm damage reduction projects;
(B) identify those projects on the list required under subparagraph (A) that meet the criteria described in paragraph (1); and
(C) provide a plan for expeditiously completing the projects identified under subparagraph (B), subject to available funding.
(b) Prioritization of ecosystem restoration efforts
(1) In general
For authorized projects with a primary purpose of ecosystem restoration, the Secretary shall give funding priority to projects—
(A) that—
(i) address an identified threat to public health, safety, or welfare;
(ii) preserve or restore ecosystems of national significance; or
(iii) preserve or restore habitats of importance for federally protected species, including migratory birds; and
(B) for which the restoration activities will contribute to other ongoing or planned Federal, State, or local restoration initiatives.
(2) Expedited consideration of currently authorized programmatic authorities
Not later than 180 days after December 16, 2016, 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 contains—
(A) a list of all programmatic authorities for aquatic ecosystem restoration or improvement of the environment that—
(i) were authorized or modified in the Water Resources Development Act of 2007 (
(ii) that meet the criteria described in paragraph (1); and
(B) a plan for expeditiously completing the projects under the authorities described in subparagraph (A), subject to available funding.
(
Editorial Notes
References in Text
The Water Resources Development Act of 2007, referred to in subsec. (b)(2)(A)(i), is
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
2016—Subsec. (a)(1)(C).
Subsec. (a)(2).
Subsec. (a)(2)(A)(ii).
"(I) have been authorized for more than 20 years but are less than 75 percent complete; or
"(II) are undergoing a post-authorization change report, general reevaluation report, or limited reevaluation report".
Subsec. (b).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2341b. Prioritization of certain projects
The Secretary shall give priority to a project for flood risk management if—
(1) there is an executed project partnership agreement for the project; and
(2) the project is located in an area—
(A) with respect to which—
(i) there has been a loss of life due to flood events; and
(ii) the President has declared that a major disaster or emergency exists under
(B) that is at significant risk for catastrophic flooding.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2341c. Criteria for funding environmental infrastructure projects
(a) In general
Not later than 180 days after December 27, 2020, the Secretary shall develop specific criteria for the evaluation and ranking of individual environmental assistance projects authorized by Congress (including projects authorized pursuant to environmental assistance programs) for the Secretary to carry out.
(b) Minimum criteria
For the purposes of carrying out this section, the Secretary shall evaluate, at a minimum—
(1) the nature and extent of the positive and negative local economic impacts of the project, including—
(A) the benefits of the project to the local economy;
(B) the extent to which the project will enhance local development;
(C) the number of jobs that will be directly created by the project; and
(D) the ability of the non-Federal interest to pay the applicable non-Federal share of the cost of the project;
(2) the demographics of the location in which the project is to be carried out, including whether the project serves—
(A) a rural community; or
(B) an economically disadvantaged community, including an economically disadvantaged minority community;
(3) the amount of appropriations a project has received;
(4) the funding capability of the Corps of Engineers with respect to the project;
(5) whether the project could be carried out under other Federal authorities at an equivalent cost to the non-Federal interest; and
(6) any other criteria that the Secretary considers to be appropriate.
(c) Inclusion in guidance
The Secretary shall include the criteria developed under subsection (a) in the annual Civil Works Direct Program Development Policy Guidance of the Secretary.
(d) Report to Congress
For fiscal year 2022, and biennially thereafter, in conjunction with the President's annual budget submission to Congress under
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
Definitions
For definition of "economically disadvantaged community" as used in this section, see section 160 of div. AA of
§2342. Access to water resource data
(a) In general
Using available funds, the Secretary shall make publicly available, including on the Internet, all data in the custody of the Corps of Engineers on—
(1) the planning, design, construction, operation, and maintenance of water resources development projects; and
(2) water quality and water management of projects owned, operated, or managed by the Corps of Engineers.
(b) Limitation
Nothing in this section may be construed to compel or authorize the disclosure of data or other information determined by the Secretary to be confidential information, privileged information, law enforcement information, national security information, infrastructure security information, personal information, or information the disclosure of which is otherwise prohibited by law.
(c) Timing
The Secretary shall ensure that data is made publicly available under subsection (a) as quickly as practicable after the data is generated by the Corps of Engineers.
(d) Partnerships
In carrying out this section, the Secretary may develop partnerships, including through cooperative agreements, with State, tribal, and local governments and other Federal agencies.
(
Editorial Notes
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.
Amendments
2016—
Statutory Notes and Related Subsidiaries
Data Transparency
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2343. Independent peer review
(a) Project studies subject to independent peer review
(1) In general
Project studies shall be subject to a peer review by an independent panel of experts as determined under this section.
(2) Scope
The peer review may include a review of the economic and environmental assumptions and projections, project evaluation data, economic analyses, environmental analyses, engineering analyses, formulation of alternative plans, methods for integrating risk and uncertainty, models used in evaluation of economic or environmental impacts of proposed projects, and any biological opinions of the project study.
(3) Project studies subject to peer review
(A) Mandatory
A project study shall be subject to peer review under paragraph (1) if—
(i) the project has an estimated total cost of more than $200,000,000, including mitigation costs, and is not determined by the Chief of Engineers to be exempt from peer review under paragraph (6);
(ii) the Governor of an affected State requests a peer review by an independent panel of experts; or
(iii) the Chief of Engineers determines that the project study is controversial considering the factors set forth in paragraph (4).
(B) Discretionary
(i) Agency request
A project study shall be considered by the Chief of Engineers for peer review under this section if the head of a Federal or State agency charged with reviewing the project study determines that the project is likely to have a significant adverse impact on environmental, cultural, or other resources under the jurisdiction of the agency after implementation of proposed mitigation plans and requests a peer review by an independent panel of experts.
(ii) Deadline for decision
A decision of the Chief of Engineers under this subparagraph whether to conduct a peer review shall be made within 21 days of the date of receipt of the request by the head of the Federal or State agency under clause (i).
(iii) Reasons for not conducting peer review
If the Chief of Engineers decides not to conduct a peer review following a request under clause (i), the Chief shall make publicly available, including on the Internet, the reasons for not conducting the peer review.
(iv) Appeal to Chairman of Council on Environmental Quality
A decision by the Chief of Engineers not to conduct a peer review following a request under clause (i) shall be subject to appeal by a person referred to in clause (i) to the Chairman of the Council on Environmental Quality if such appeal is made within the 30-day period following the date of the decision being made available under clause (iii). A decision of the Chairman on an appeal under this clause shall be made within 30 days of the date of the appeal.
(4) Factors to consider
In determining whether a project study is controversial under paragraph (3)(A)(iii), the Chief of Engineers shall consider if—
(A) there is a significant public dispute as to the size, nature, or effects of the project; or
(B) there is a significant public dispute as to the economic or environmental costs or benefits of the project.
(5) Project studies excluded from peer review
The Chief of Engineers may exclude a project study from peer review under paragraph (1)—
(A) if the project study does not include an environmental impact statement and is a project study subject to peer review under paragraph (3)(A)(i) that the Chief of Engineers determines—
(i) is not controversial;
(ii) has no more than negligible adverse impacts on scarce or unique cultural, historic, or tribal resources;
(iii) has no substantial adverse impacts on fish and wildlife species and their habitat prior to the implementation of mitigation measures; and
(iv) has, before implementation of mitigation measures, no more than a negligible adverse impact on a species listed as endangered or threatened species under the Endangered Species Act of 1973 (
(B) if the project study—
(i) involves only the rehabilitation or replacement of existing hydropower turbines, lock structures, or flood control gates within the same footprint and for the same purpose as an existing water resources project;
(ii) is for an activity for which there is ample experience within the Corps of Engineers and industry to treat the activity as being routine; and
(iii) has minimal life safety risk; or
(C) if the project study does not include an environmental impact statement and is a project study pursued under
(6) Determination of total cost
For purposes of determining the estimated total cost of a project under paragraph (3)(A), the total cost shall be based upon the reasonable estimates of the Chief of Engineers at the completion of the reconnaissance study for the project. If the reasonable estimate of total costs is subsequently determined to be in excess of the amount in paragraph (3)(A), the Chief of Engineers shall make a determination whether a project study is required to be reviewed under this section.
(b) Timing of peer review
(1) In general
The Chief of Engineers shall determine the timing of a peer review of a project study under subsection (a). In all cases, the peer review shall occur during the period beginning on the date of the signing of the feasibility cost-sharing agreement for the study and ending on the date established under subsection (e)(1)(A) for the peer review and shall be accomplished concurrent with the conducting of the project study.
(2) Factors to consider
In any case in which the Chief of Engineers has not initiated a peer review of a project study, the Chief of Engineers shall consider, at a minimum, whether to initiate a peer review at the time that—
(A) the without-project conditions are identified;
(B) the array of alternatives to be considered are identified; and
(C) the preferred alternative is identified.
(3) Reasons for timing
If the Chief of Engineers does not initiate a peer review for a project study at a time described in paragraph (2), the Chief shall—
(A) not later than 7 days after the date on which the Chief of Engineers determines not to initiate a peer review—
(i) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of that decision; and
(ii) make publicly available, including on the Internet, the reasons for not conducting the review; and
(B) include the reasons for not conducting the review in the decision document for the project study.
(4) Limitation on multiple peer review
Nothing in this subsection shall be construed to require the Chief of Engineers to conduct multiple peer reviews for a project study.
(c) Establishment of panels
(1) In general
For each project study subject to peer review under subsection (a), as soon as practicable after the Chief of Engineers determines that a project study will be subject to peer review, the Chief of Engineers shall contract with the National Academy of Sciences or a similar independent scientific and technical advisory organization or an eligible organization to establish a panel of experts to conduct a peer review for the project study.
(2) Membership
A panel of experts established for a project study under this section shall be composed of independent experts who represent a balance of areas of expertise suitable for the review being conducted.
(3) Limitation on appointments
The National Academy of Sciences or any other organization the Chief of Engineers contracts with under paragraph (1) to establish a panel of experts shall apply the National Academy of Science's policy for selecting committee members to ensure that members selected for the panel of experts have no conflict with the project being reviewed.
(4) Congressional and public notification
Following the identification of a project study for peer review under this section, but prior to initiation of the review by the panel of experts, the Chief of Engineers shall, not later than 7 days after the date on which the Chief of Engineers determines to conduct a review—
(A) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of the review conducted under this section; and
(B) make publicly available, including on the Internet, information on—
(i) the dates scheduled for beginning and ending the review;
(ii) the entity that has the contract for the review; and
(iii) the names and qualifications of the panel of experts.
(d) Duties of panels
A panel of experts established for a peer review for a project study under this section shall—
(1) conduct the peer review for the project study;
(2) assess the adequacy and acceptability of the economic, engineering, and environmental methods, models, and analyses used by the Chief of Engineers;
(3) receive from the Chief of Engineers the public written and oral comments provided to the Chief of Engineers;
(4) provide timely written and oral comments to the Chief of Engineers throughout the development of the project study, as requested; and
(5) submit to the Chief of Engineers a final report containing the panel's economic, engineering, and environmental analysis of the project study, including the panel's assessment of the adequacy and acceptability of the economic, engineering, and environmental methods, models, and analyses used by the Chief of Engineers, to accompany the publication of the report of the Chief of Engineers for the project.
(e) Duration of project study peer reviews
(1) Deadline
A panel of experts established under this section shall—
(A) complete its peer review under this section for a project study and submit a report to the Chief of Engineers under subsection (d)(5) not more than 60 days after the last day of the public comment period for the draft project study, or, if the Chief of Engineers determines that a longer period of time is necessary, such period of time determined necessary by the Chief of Engineers; and
(B) terminate on the date of initiation of the State and agency review required by
(2) Failure to meet deadline
If a panel of experts does not complete its peer review of a project study under this section and submit a report to the Chief of Engineers under subsection (d)(5) on or before the deadline established by paragraph (1) for the peer review, the Chief of Engineers shall complete the project study without delay.
(f) Recommendations of panel
(1) Consideration by the Chief of Engineers
After receiving a report on a project study from a panel of experts under this section and before entering a final record of decision for the project, the Chief of Engineers shall consider any recommendations contained in the report and prepare a written response for any recommendations adopted or not adopted.
(2) Public availability and submission to Congress
After receiving a report on a project study from a panel of experts under this section, the Chief of Engineers shall make available to the public, including on the Internet, and 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) a copy of the report not later than 7 days after the date on which the report is delivered to the Chief of Engineers; and
(B) a copy of any written response of the Chief of Engineers on recommendations contained in the report not later than 3 days after the date on which the response is delivered to the Chief of Engineers.
(3) Inclusion in project study
A report on a project study from a panel of experts under this section and the written response of the Chief of Engineers shall be included in the final decision document for the project study.
(g) Costs
(1) In general
The costs of a panel of experts established for a peer review under this section—
(A) shall be a Federal expense; and
(B) shall not exceed $500,000.
(2) Waiver
The Chief of Engineers may waive the $500,000 limitation contained in paragraph (1)(B) in cases that the Chief of Engineers determines appropriate.
(h) Applicability
This section shall apply to—
(1) project studies initiated during the 2-year period preceding November 8, 2007, and for which the array of alternatives to be considered has not been identified; and
(2) project studies initiated during the period beginning on November 8, 2007, and ending 17 years after November 8, 2007.
(i) Reports
(1) Initial report
Not later than 3 years after November 8, 2007, the Chief of Engineers 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 on the implementation of this section.
(2) Additional report
Not later than 6 years after November 8, 2007, the Chief of Engineers shall update the report under paragraph (1) taking into account any further information on implementation of this section and submit such updated report to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.
(j) Nonapplicability of chapter 10 of title 5
(k) Savings clause
Nothing in this section shall be construed to affect any authority of the Chief of Engineers to cause or conduct a peer review of a water resources project existing on November 8, 2007.
(l) Definitions
In this section, the following definitions apply:
(1) Project study
The term "project study" means—
(A) a feasibility study or reevaluation study for a water resources project, including the environmental impact statement prepared for the study; and
(B) any other study associated with a modification of a water resources project that includes an environmental impact statement, including the environmental impact statement prepared for the study.
(2) Affected State
The term "affected State", as used with respect to a water resources project, means a State all or a portion of which is within the drainage basin in which the project is or would be located and would be economically or environmentally affected as a consequence of the project.
(3) Eligible organization
The term "eligible organization" means an organization that—
(A) is described in section 501(c)(3), and exempt from Federal tax under
(B) is independent;
(C) is free from conflicts of interest;
(D) does not carry out or advocate for or against Federal water resources projects; and
(E) has experience in establishing and administering peer review panels.
(4) Total cost
The term "total cost", as used with respect to a water resources project, means the cost of construction (including planning and designing) of the project. In the case of a project for hurricane and storm damage reduction or flood damage reduction that includes periodic nourishment over the life of the project, the term includes the total cost of the nourishment.
(
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (a)(5)(A)(iv), is
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.
Amendments
2022—Subsec. (j).
2018—Subsec. (h)(2).
2014—Subsec. (a)(3)(A)(i).
Subsec. (b)(3), (4).
Subsec. (c)(4).
Subsec. (f)(2), (3).
Subsec. (h)(2).
§2344. Safety assurance review
(a) Projects subject to safety assurance review
The Chief of Engineers shall ensure that the design and construction activities for hurricane and storm damage reduction and flood damage reduction projects are reviewed by independent experts under this section if the Chief of Engineers determines that a review by independent experts is necessary to assure public health, safety, and welfare.
(b) Factors
In determining whether a review of design and construction of a project is necessary under this section, the Chief of Engineers shall consider whether—
(1) the failure of the project would pose a significant threat to human life;
(2) the project involves the use of innovative materials or techniques;
(3) the project design lacks redundancy; or
(4) the project has a unique construction sequencing or a reduced or overlapping design construction schedule.
(c) Safety assurance review
(1) Initiation of review
At the appropriate point in the development of detailed engineering and design specifications for each water resources project subject to review under this section, the Chief of Engineers shall initiate a safety assurance review by independent experts on the design and construction activities for the project.
(2) Selection of reviewers
A safety assurance review under this section shall include participation by experts selected by the Chief of Engineers from among individuals who are distinguished experts in engineering, hydrology, or other appropriate disciplines. The Chief of Engineers shall apply the National Academy of Science's policy for selecting reviewers to ensure that reviewers have no conflict of interest with the project being reviewed.
(3) Compensation
An individual serving as an independent reviewer under this section shall be compensated at a rate of pay to be determined by the Secretary and shall be allowed travel expenses.
(d) Scope of safety assurance reviews
A safety assurance review under this section shall include a review of the design and construction activities prior to the initiation of physical construction and periodically thereafter until construction activities are completed on a regular schedule sufficient to inform the Chief of Engineers on the adequacy, appropriateness, and acceptability of the design and construction activities for the purpose of assuring public health, safety, and welfare. The Chief of Engineers shall ensure that reviews under this section do not create any unnecessary delays in design and construction activities.
(e) Safety assurance review record
The written recommendations of a reviewer or panel of reviewers under this section and the responses of the Chief of Engineers shall be available to the public, including through electronic means on the Internet.
(f) Applicability
This section shall apply to any project in design or under construction on November 8, 2007, and to any project with respect to which design or construction is initiated during the period beginning on November 8, 2007, and ending 7 years after November 8, 2007.
(g) Nonapplicability of chapter 10 of title 5
(
Editorial Notes
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.
Amendments
2022—Subsec. (g).
2014—Subsec. (g).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2345. Electronic submission and tracking of permit applications
(a) Development of electronic system
(1) In general
The Secretary shall research, develop, and implement an electronic system to allow the electronic preparation and submission of applications for permits and requests for jurisdictional determinations under the jurisdiction of the Secretary.
(2) Inclusion
The electronic system required under paragraph (1) shall address—
(A) applications for standard individual permits;
(B) applications for letters of permission;
(C) joint applications with States for State and Federal permits;
(D) applications for emergency permits;
(E) applications or requests for jurisdictional determinations; and
(F) preconstruction notification submissions, when required for a nationwide or other general permit.
(3) Improving existing data systems
The Secretary shall seek to incorporate the electronic system required under paragraph (1) into existing systems and databases of the Corps of Engineers to the maximum extent practicable.
(4) Protection of information
The electronic system required under paragraph (1) shall provide for the protection of personal, private, privileged, confidential, and proprietary information, and information the disclosure of which is otherwise prohibited by law.
(b) System requirements
The electronic system required under subsection (a) shall—
(1) enable an applicant or requester to prepare electronically an application for a permit or request;
(2) enable an applicant or requester to submit to the Secretary, by email or other means through the Internet, the completed application form or request;
(3) enable an applicant or requester to submit to the Secretary, by email or other means through the Internet, data and other information in support of the permit application or request;
(4) provide an online interactive guide to provide assistance to an applicant or requester at any time while filling out the permit application or request; and
(5) enable an applicant or requester (or a designated agent) to track the status of a permit application or request in a manner that will—
(A) allow the applicant or requester to determine whether the application is pending or final and the disposition of the request;
(B) allow the applicant or requester to research previously submitted permit applications and requests within a given geographic area and the results of such applications or requests; and
(C) allow identification and display of the location of the activities subject to a permit or request through a map-based interface.
(c) Documentation
All permit decisions and jurisdictional determinations made by the Secretary shall be in writing and include documentation supporting the basis for the decision or determination. The Secretary shall prescribe means for documenting all decisions or determinations to be made by the Secretary.
(d) Record of determinations
(1) In general
The Secretary shall maintain, for a minimum of 5 years, a record of each permit decision and jurisdictional determination made by the Secretary, including documentation supporting the basis of the decision or determination.
(2) Archiving of information
The Secretary shall explore and implement an appropriate mechanism for archiving records of permit decisions and jurisdictional determinations, including documentation supporting the basis of the decisions and determinations, after the 5-year maintenance period described in paragraph (1).
(e) Availability of determinations
(1) In general
The Secretary shall make the records of all permit decisions and jurisdictional determinations made by the Secretary available to the public for review and reproduction.
(2) Protection of information
The Secretary shall provide for the protection of personal, private, privileged, confidential, and proprietary information, and information the disclosure of which is prohibited by law, which may be excluded from disclosure.
(f) Deadline for electronic system implementation
(1) In general
The Secretary shall develop and implement, to the maximum extent practicable, the electronic system required under subsection (a) not later than 2 years after December 23, 2022.
(2) Update on electronic system implementation
The Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a quarterly update describing the status of the implementation of this section.
(g) Applicability
The requirements described in subsections (c), (d), and (e) shall apply to permit applications and requests for jurisdictional determinations submitted to the Secretary after December 16, 2016.
(h) Limitation
This section shall not preclude the submission to the Secretary, acting through the Chief of Engineers, of a physical copy of a permit application or a request for a jurisdictional determination.
(
Editorial Notes
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.
Amendments
2022—Subsec. (f)(1).
Subsec. (f)(2).
2016—
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2346. Project administration
(a) Project tracking
The Secretary shall assign a unique tracking number to each water resources project under the jurisdiction of the Secretary to be used by each Federal agency throughout the life of the project.
(b) Report repository
(1) In general
The Secretary shall provide to the Library of Congress a copy of each final feasibility study, final environmental impact statement, final reevaluation report, final post-authorization change report, record of decision, and report to Congress prepared by the Corps of Engineers.
(2) Availability to public
Each document described in paragraph (1) shall be made available to the public, and an electronic copy of each document shall be made permanently available to the public through the Internet.
(
Editorial Notes
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.
Amendments
2016—Subsec. (b)(1).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2347. Coordination and scheduling of Federal, State, and local actions
(a) Notice of intent
Upon request of the non-Federal interest in the form of a written notice of intent to construct or modify a non-Federal water supply, wastewater infrastructure, flood damage reduction, storm damage reduction, ecosystem restoration, or navigation project that requires the approval of the Secretary, the Secretary shall initiate, subject to subsection (c), procedures to establish a schedule for consolidating Federal, State, and local agency and Indian tribe environmental assessments, project reviews, and issuance of all permits for the construction or modification of the project. All States and Indian tribes having jurisdiction over the proposed project shall be invited by the Secretary, but shall not be required, to participate in carrying out this section with respect to the project.
(b) Coordination
The Secretary shall seek, to the extent practicable, to consolidate hearing and comment periods, procedures for data collection and report preparation, and the environmental review and permitting processes associated with the project and related activities. The Secretary shall notify, to the extent possible, the non-Federal interest of its responsibilities for data development and information that may be necessary to process each permit required for the project, including a schedule when the information and data should be provided to the appropriate Federal, State, or local agency or Indian tribe.
(c) Costs of coordination
The costs incurred by the Secretary to establish and carry out a schedule to consolidate Federal, State, and local agency and Indian tribe environmental assessments, project reviews, and permit issuance for a project under this section shall be paid by the non-Federal interest.
(d) Report on timesavings methods
Not later than 3 years after November 8, 2007, the Secretary shall prepare and transmit to Congress a report estimating the time required for the issuance of all Federal, State, local, and tribal permits for the construction of non-Federal projects for water supply, wastewater infrastructure, flood damage reduction, storm damage reduction, ecosystem restoration, and navigation.
(
Editorial Notes
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
Local Government Reservoir Permit Review
"(a)
"(1) any portion of the water resources available to the area served by the local governmental entity is polluted by chemicals used at a formerly used defense site under the jurisdiction of the Department of Defense that is undergoing (or is scheduled to undergo) environmental restoration under
"(2) mitigation of the pollution described in paragraph (1) is ongoing.
"(b)
"(c)
"(1) the National Environmental Policy Act of 1969 (
"(2) the Federal Water Pollution Control Act (
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2347a. Determination of project completion
(a) In general
The Secretary shall notify the applicable non-Federal interest when construction of a water resources project or a functional portion of the project is completed so the non-Federal interest may commence responsibilities, as applicable, for operating and maintaining the project.
(b) Non-Federal interest appeal of determination
(1) In general
Not later than 7 days after receiving a notification under subsection (a), the non-Federal interest may appeal the completion determination of the Secretary in writing with a detailed explanation of the basis for questioning the completeness of the project or functional portion of the project.
(2) Independent review
(A) In general
On notification that a non-Federal interest has submitted an appeal under paragraph (1), the Secretary shall contract with 1 or more independent, non-Federal experts to evaluate whether the applicable water resources project or functional portion of the project is complete.
(B) Timeline
An independent review carried out under subparagraph (A) shall be completed not later than 180 days after the date on which the Secretary receives an appeal from a non-Federal interest under paragraph (1).
(
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
§2347b. Purpose and need
(a) Purpose and need statements
(1) In general
Not later than 90 days after the date of receipt of a complete application for a water storage project, the District Engineer shall develop and provide to the applicant a purpose and need statement that describes—
(A) whether the District Engineer concurs with the assessment of the purpose of and need for the water storage project proposed by the applicant; and
(B) in any case in which the District Engineer does not concur as described in subparagraph (A), an assessment by the District Engineer of the purpose of and need for the project.
(2) Effect on environmental impact statements
No environmental impact statement or environmental assessment required under the National Environmental Policy Act of 1969 (
(b) Appeals request
A non-Federal interest may use the administrative appeals process described in part 331 of title 33, Code of Federal Regulations (or any succeeding regulation), in relation to a decision of the Secretary related to an application for a water storage project.
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (a)(2), is
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, 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 102 of
§2347c. Small water storage projects
(a) In general
The Secretary shall carry out a program to study and construct new, or enlarge existing, small water storage projects, in partnership with a non-Federal interest.
(b) Requirements
To be eligible to participate in the program under this section, a small water storage project shall—
(1) in the case of a new small water storage project, have a water storage capacity of not less than 2,000 acre-feet and not more than 30,000 acre-feet;
(2) in the case of an enlargement of an existing small water storage project, be for an enlargement of not less than 1,000 acre-feet and not more than 30,000 acre-feet;
(3) provide—
(A) flood risk management benefits;
(B) ecological benefits; or
(C) water management, water conservation, or water supply; and
(4) be—
(A) economically justified, environmentally acceptable, and technically feasible; or
(B) in the case of a project providing ecological benefits, cost-effective with respect to such benefits.
(c) Scope
In carrying out the program under this section, the Secretary shall give preference to a small water storage project located in a State with a population of less than 1,000,000.
(d) Expedited projects
For the 10-year period beginning on December 27, 2020, the Secretary shall expedite small water storage projects under this section for which applicable Federal permitting requirements have been completed.
(e) Use of data
In conducting a study under this section, to the maximum extent practicable, the Secretary shall—
(1) as the Secretary determines appropriate, consider and utilize any applicable hydrologic, economic, or environmental data that is prepared for a small water storage project under State law as the documentation, or part of the documentation, required to complete State water plans or other State planning documents relating to water resources management; and
(2) consider information developed by the non-Federal interest in relation to another study, to the extent the Secretary determines such information is applicable, appropriate, or otherwise authorized by law.
(f) Cost share
(1) Study
The Federal share of the cost of a study conducted under this section shall be—
(A) 100 percent for costs not to exceed $100,000; and
(B) 50 percent for any costs above $100,000.
(2) Construction
A small water storage project carried out under this section shall be subject to the cost-sharing requirements applicable to projects under
(A) municipal and industrial water supply: 100 percent non-Federal;
(B) agricultural water supply: 35 percent non-Federal; and
(C) 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.
(g) OMRRR responsibility
The costs of operation, maintenance, repair, and replacement and rehabilitation for a small water storage project constructed under this section shall be the responsibility of the non-Federal interest.
(h) Individual project limit
Not more than $65,000,000 in Federal funds may be made available to a small water storage project under this section.
(i) Authorization of appropriations
There is authorized to be appropriated to carry out this section $130,000,000 annually through fiscal year 2030.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2348. Project acceleration
(a) Definitions
In this section:
(1) Environmental impact statement
The term "environmental impact statement" means the detailed statement of environmental impacts of a project required to be prepared pursuant to the National Environmental Policy Act of 1969 (
(2) Environmental review process
(A) In general
The term "environmental review process" means the process of preparing an environmental impact statement, environmental assessment, categorical exclusion, or other document under the National Environmental Policy Act of 1969 (
(B) Inclusions
The term "environmental review process" includes the process for and completion of any environmental permit, approval, review, or study required for a project study under any Federal law other than the National Environmental Policy Act of 1969 (
(3) Federal jurisdictional agency
The term "Federal jurisdictional agency" means a Federal agency with jurisdiction delegated by law, regulation, order, or otherwise over a review, analysis, opinion, statement, permit, license, or other approval or decision required for a project study under applicable Federal laws (including regulations).
(4) Federal lead agency
The term "Federal lead agency" means the Corps of Engineers.
(5) Project
The term "project" means a water resources development project to be carried out by the Secretary.
(6) Project sponsor
The term "project sponsor" has the meaning given the term "non-Federal interest" in
(7) Project study
The term "project study" means a feasibility study for a project carried out pursuant to
(b) Applicability
(1) In general
This section—
(A) shall apply to each project study that is initiated after June 10, 2014, and for which an environmental impact statement is prepared under the National Environmental Policy Act of 1969 (
(B) may be applied, to the extent determined appropriate by the Secretary, to other project studies initiated after June 10, 2014, and for which an environmental review process document is prepared under that Act.
(2) Flexibility
Any authority granted under this section may be exercised, and any requirement established under this section may be satisfied, for the conduct of an environmental review process for a project study, a class of project studies, or a program of project studies.
(3) List of project studies
(A) In general
The Secretary shall annually prepare, and make publicly available, a separate list of each study that the Secretary has determined—
(i) meets the standards described in paragraph (1); and
(ii) does not have adequate funding to make substantial progress toward the completion of the project study.
(B) Inclusions
The Secretary shall include for each project study on the list under subparagraph (A) a description of the estimated amounts necessary to make substantial progress on the project study.
(c) Project review process
(1) In general
The Secretary shall develop and implement a coordinated environmental review process for the development of project studies.
(2) Coordinated review
The coordinated environmental review process described in paragraph (1) shall require that any review, analysis, opinion, statement, permit, license, or other approval or decision issued or made by a Federal, State, or local governmental agency or an Indian tribe for a project study described in subsection (b) be conducted, to the maximum extent practicable, concurrently with any other applicable governmental agency or Indian tribe.
(3) Timing
The coordinated environmental review process under this subsection shall be completed not later than the date on which the Secretary, in consultation and concurrence with the agencies identified under subsection (e), establishes with respect to the project study.
(d) Lead agencies
(1) Joint lead agencies
(A) In general
At the discretion of the Secretary and subject to the requirements of the National Environmental Policy Act of 1969 (
(B) Project sponsor as joint lead agency
A project sponsor that is a State or local governmental entity may—
(i) with the concurrence of the Secretary, serve as a joint lead agency with the Federal lead agency for purposes of preparing any environmental document under the National Environmental Policy Act of 1969 (
(ii) prepare any environmental review process document under the National Environmental Policy Act of 1969 (
(I) the Secretary provides guidance in the preparation process and independently evaluates that document;
(II) the project sponsor complies with all requirements applicable to the Secretary under—
(aa) the National Environmental Policy Act of 1969 (
(bb) any regulation implementing that Act; and
(cc) any other applicable Federal law; and
(III) the Secretary approves and adopts the document before the Secretary takes any subsequent action or makes any approval based on that document, regardless of whether the action or approval of the Secretary results in Federal funding.
(2) Duties
The Secretary shall ensure that—
(A) the project sponsor complies with all design and mitigation commitments made jointly by the Secretary and the project sponsor in any environmental document prepared by the project sponsor in accordance with this subsection; and
(B) any environmental document prepared by the project sponsor is appropriately supplemented to address any changes to the project the Secretary determines are necessary.
(3) Adoption and use of documents
Any environmental document prepared in accordance with this subsection shall be adopted and used by any Federal agency making any determination related to the project study to the same extent that the Federal agency could adopt or use a document prepared by another Federal agency under—
(A) the National Environmental Policy Act of 1969 (
(B) parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations).
(4) Roles and responsibility of lead agency
With respect to the environmental review process for any project study, the Federal lead agency shall have authority and responsibility—
(A) to take such actions as are necessary and proper and within the authority of the Federal lead agency to facilitate the expeditious resolution of the environmental review process for the project study; and
(B) to prepare or ensure that any required environmental impact statement or other environmental review document for a project study required to be completed under the National Environmental Policy Act of 1969 (
(e) Participating and cooperating agencies
(1) Identification of jurisdictional agencies
With respect to carrying out the environmental review process for a project study, the Secretary shall identify, as early as practicable in the environmental review process, all Federal, State, and local government agencies and Indian tribes that may—
(A) have jurisdiction over the project;
(B) be required by law to conduct or issue a review, analysis, opinion, or statement for the project study; or
(C) be required to make a determination on issuing a permit, license, or other approval or decision for the project study.
(2) State authority
If the environmental review process is being implemented by the Secretary for a project study within the boundaries of a State, the State, consistent with State law, may choose to participate in the process and to make subject to the process all State agencies that—
(A) have jurisdiction over the project;
(B) are required to conduct or issue a review, analysis, opinion, or statement for the project study; or
(C) are required to make a determination on issuing a permit, license, or other approval or decision for the project study.
(3) Invitation
(A) In general
The Federal lead agency shall invite, as early as practicable in the environmental review process, any agency identified under paragraph (1) to become a participating or cooperating agency, as applicable, in the environmental review process for the project study.
(B) Deadline
An invitation to participate issued under subparagraph (A) shall set a deadline by which a response to the invitation shall be submitted, which may be extended by the Federal lead agency for good cause.
(4) Procedures
Section 1501.6 of title 40, Code of Federal Regulations (as in effect on June 10, 2014) shall govern the identification and the participation of a cooperating agency.
(5) Federal cooperating agencies
Any Federal agency that is invited by the Federal lead agency to participate in the environmental review process for a project study shall be designated as a cooperating agency by the Federal lead agency unless the invited agency informs the Federal lead agency, in writing, by the deadline specified in the invitation that the invited agency—
(A)(i)(I) has no jurisdiction or authority with respect to the project;
(II) has no expertise or information relevant to the project; or
(III) does not have adequate funds to participate in the project; and
(ii) does not intend to submit comments on the project; or
(B) does not intend to submit comments on the project.
(6) Administration
A participating or cooperating agency shall comply with this section and any schedule established under this section.
(7) Effect of designation
Designation as a participating or cooperating agency under this subsection shall not imply that the participating or cooperating agency—
(A) supports a proposed project; or
(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.
(8) Concurrent reviews
Each participating or cooperating agency shall—
(A) carry out the obligations of that agency under other applicable law concurrently and in conjunction with the required environmental review process, unless doing so would prevent the participating or cooperating agency from conducting needed analysis or otherwise carrying out those obligations; and
(B) formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.
(f) Programmatic compliance
(1) In general
The Secretary shall issue guidance regarding the use of programmatic approaches to carry out the environmental review process that—
(A) eliminates repetitive discussions of the same issues;
(B) focuses on the actual issues ripe for analyses at each level of review;
(C) establishes a formal process for coordinating with participating and cooperating agencies, including the creation of a list of all data that is needed to carry out an environmental review process; and
(D) complies with—
(i) the National Environmental Policy Act of 1969 (
(ii) all other applicable laws.
(2) Requirements
In carrying out paragraph (1), the Secretary shall—
(A) as the first step in drafting guidance under that paragraph, consult with relevant Federal, State, and local governmental agencies, Indian tribes, and the public on the appropriate use and scope of the programmatic approaches;
(B) emphasize the importance of collaboration among relevant Federal, State, and local governmental agencies, and Indian tribes in undertaking programmatic reviews, especially with respect to including reviews with a broad geographical scope;
(C) ensure that the programmatic reviews—
(i) promote transparency, including of the analyses and data used in the environmental review process, the treatment of any deferred issues raised by Federal, State, and local governmental agencies, Indian tribes, or the public, and the temporal and special scales to be used to analyze those issues;
(ii) use accurate and timely information in the environmental review process, including—
(I) criteria for determining the general duration of the usefulness of the review; and
(II) the timeline for updating any out-of-date review;
(iii) describe—
(I) the relationship between programmatic analysis and future tiered analysis; and
(II) the role of the public in the creation of future tiered analysis; and
(iv) are available to other relevant Federal, State, and local governmental agencies, Indian tribes, and the public;
(D) allow not fewer than 60 days of public notice and comment on any proposed guidance; and
(E) address any comments received under subparagraph (D).
(g) Coordinated reviews
(1) Coordination plan
(A) Establishment
(i) In general
The Federal lead agency shall, after consultation with and with the concurrence of each participating and cooperating agency and the project sponsor or joint lead agency, as applicable, establish a plan for coordinating public and agency participation in, and comment on, the environmental review process for a project study or a category of project studies.
(ii) Incorporation
The plan established under clause (i) shall be incorporated into the project schedule milestones set under
(B) Schedule
(i) In general
As soon as practicable but not later than 45 days after the close of the public comment period on a draft environmental impact statement, the Federal lead agency, after consultation with and the concurrence of each participating and cooperating agency and the project sponsor or joint lead agency, as applicable, shall establish, as part of the coordination plan established in subparagraph (A), a schedule for completion of the environmental review process for the project study.
(ii) Factors for consideration
In establishing a schedule, the Secretary shall consider factors such as—
(I) the responsibilities of participating and cooperating agencies under applicable laws;
(II) the resources available to the project sponsor, joint lead agency, and other relevant Federal and State agencies, as applicable;
(III) the overall size and complexity of the project;
(IV) the overall schedule for and cost of the project; and
(V) the sensitivity of the natural and historical resources that could be affected by the project.
(iii) Modifications
The Secretary may—
(I) lengthen a schedule established under clause (i) for good cause; and
(II) shorten a schedule only with concurrence of the affected participating and cooperating agencies and the project sponsor or joint lead agency, as applicable.
(iv) Dissemination
A copy of a schedule established under clause (i) shall be—
(I) provided to each participating and cooperating agency and the project sponsor or joint lead agency, as applicable; and
(II) made available to the public.
(2) Comment deadlines
The Federal lead agency shall establish the following deadlines for comment during the environmental review process for a project study:
(A) Draft environmental impact statements
For comments by Federal and States 1 agencies and the public on a draft environmental impact statement, a period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of the draft environmental impact statement, unless—
(i) a different deadline is established by agreement of the Federal lead agency, the project sponsor or joint lead agency, as applicable, and all participating and cooperating agencies; or
(ii) the deadline is extended by the Federal lead agency for good cause.
(B) Other environmental review processes
For all other comment periods established by the Federal lead agency for agency or public comments in the environmental review process, a period of not more than 30 days after the date on which the materials on which comment is requested are made available, unless—
(i) a different deadline is established by agreement of the Federal lead agency, the project sponsor, or joint lead agency, as applicable, and all participating and cooperating agencies; or
(ii) the deadline is extended by the Federal lead agency for good cause.
(3) Deadlines for decisions under other laws
In any case in which a decision under any Federal law relating to a project study, including the issuance or denial of a permit or license, is required to be made by the date described in subsection (h)(5)(B)(ii), 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) as soon as practicable after the 180-day period described in subsection (h)(5)(B)(ii), an initial notice of the failure of the Federal agency to make the decision; and
(B) every 60 days thereafter until such date as all decisions of the Federal agency relating to the project study have been made by the Federal agency, an additional notice that describes the number of decisions of the Federal agency that remain outstanding as of the date of the additional notice.
(4) Involvement of the public
Nothing in this subsection reduces any time period provided for public comment in the environmental review process under applicable Federal law (including regulations).
(5) Transparency reporting
(A) Reporting requirements
Not later than 1 year after June 10, 2014, the Secretary shall establish and maintain an electronic database and, in coordination with other Federal and State agencies, issue reporting requirements to make publicly available the status and progress with respect to compliance with applicable requirements of the National Environmental Policy Act of 1969 (
(B) Project study transparency
Consistent with the requirements established under subparagraph (A), the Secretary shall publish the status and progress of any Federal, State, or local decision, action, or approval required under applicable laws for each project study for which this section is applicable.
(h) Issue identification and resolution
(1) Cooperation
The Federal lead agency, the cooperating agencies, and any participating agencies shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion of the environmental review process or result in the denial of any approval required for the project study under applicable laws.
(2) Federal lead agency responsibilities
(A) In general
The Federal lead agency shall make information available to the cooperating agencies and participating agencies as early as practicable in the environmental review process regarding the environmental and socioeconomic resources located within the project area and the general locations of the alternatives under consideration.
(B) Data sources
The information under subparagraph (A) may be based on existing data sources, including geographic information systems mapping.
(3) Cooperating and participating agency responsibilities
Based on information received from the Federal lead agency, cooperating and participating agencies shall identify, as early as practicable, any issues of concern regarding the potential environmental or socioeconomic impacts of the project, including any issues that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project study.
(4) Accelerated issue resolution and elevation
(A) In general
On the request of a participating or cooperating agency or project sponsor, the Secretary shall convene an issue resolution meeting with the relevant participating and cooperating agencies and the project sponsor or joint lead agency, as applicable, to resolve issues that may—
(i) delay completion of the environmental review process; or
(ii) result in denial of any approval required for the project study under applicable laws.
(B) Meeting date
A meeting requested under this paragraph shall be held not later than 21 days after the date on which the Secretary receives the request for the meeting, unless the Secretary determines that there is good cause to extend that deadline.
(C) Notification
On receipt of a request for a meeting under this paragraph, the Secretary shall notify all relevant participating and cooperating agencies of the request, including the issue to be resolved and the date for the meeting.
(D) Elevation of issue resolution
If a resolution cannot be achieved within the 30 day-period beginning on the date of a meeting under this paragraph and a determination is made by the Secretary that all information necessary to resolve the issue has been obtained, the Secretary shall forward the dispute to the heads of the relevant agencies for resolution.
(E) Convention by Secretary
The Secretary may convene an issue resolution meeting under this paragraph at any time, at the discretion of the Secretary, regardless of whether a meeting is requested under subparagraph (A).
(5) Financial penalty provisions
(A) In general
A Federal jurisdictional agency shall complete any required approval or decision for the environmental review process on an expeditious basis using the shortest existing applicable process.
(B) Failure to decide
(i) In general
If a Federal jurisdictional agency fails to render a decision required under any Federal law relating to a project study that requires the preparation of an environmental impact statement or environmental assessment, including the issuance or denial of a permit, license, statement, opinion, or other approval by the date described in clause (ii), the amount of funds made available to support the office of the head of the Federal jurisdictional agency shall be reduced by an amount of funding equal to the amounts specified in subclause (I) or (II) and those funds shall be made available to the division of the Federal jurisdictional agency charged with rendering the decision by not later than 1 day after the applicable date under clause (ii), and once each week thereafter until a final decision is rendered, subject to subparagraph (C)—
(I) $20,000 for any project study requiring the preparation of an environmental assessment or environmental impact statement; or
(II) $10,000 for any project study requiring any type of review under the National Environmental Policy Act of 1969 (
(ii) Description of date
The date referred to in clause (i) is the later of—
(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and
(II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969 (
(C) Limitations
(i) In general
No transfer of funds under subparagraph (B) relating to an individual project study shall exceed, in any fiscal year, an amount equal to 1 percent of the funds made available for the applicable agency office.
(ii) Failure to decide
The total amount transferred in a fiscal year as a result of a failure by an agency to make a decision by an applicable deadline shall not exceed an amount equal to 5 percent of the funds made available for the applicable agency office for that fiscal year.
(iii) Aggregate
Notwithstanding any other provision of law, for each fiscal year, the aggregate amount of financial penalties assessed against each applicable agency office under the Water Resources Reform and Development Act of 2014 and any other Federal law as a result of a failure of the agency to make a decision by an applicable deadline for environmental review, including the total amount transferred under this paragraph, shall not exceed an amount equal to 9.5 percent of the funds made available for the agency office for that fiscal year.
(D) No fault of agency
(i) In general
A transfer of funds under this paragraph shall not be made if the applicable agency described in subparagraph (A) notifies, with a supporting explanation, the Federal lead agency, cooperating agencies, and project sponsor, as applicable, that—
(I) the agency has not received necessary information or approvals from another entity in a manner that affects the ability of the agency to meet any requirements under Federal, State, or local law;
(II) significant new information, including from public comments, or circumstances, including a major modification to an aspect of the project, requires additional analysis for the agency to make a decision on the project application; or
(III) the agency lacks the financial resources to complete the review under the scheduled time frame, including a description of the number of full-time employees required to complete the review, the amount of funding required to complete the review, and a justification as to why not enough funding is available to complete the review by the deadline.
(ii) Lack of financial resources
If the agency provides notice under clause (i)(III), the Inspector General of the agency shall—
(I) conduct a financial audit to review the notice; and
(II) not later than 90 days after the date on which the review described in subclause (I) is completed, 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 on the notice.
(E) Limitation
The Federal agency from which funds are transferred pursuant to this paragraph shall not reprogram funds to the office of the head of the agency, or equivalent office, to reimburse that office for the loss of the funds.
(F) Effect of paragraph
Nothing in this paragraph affects or limits the application of, or obligation to comply with, any Federal, State, local, or tribal law.
(i) Memorandum of agreements for early coordination
(1) Sense of Congress
It is the sense of Congress that—
(A) the Secretary and other Federal agencies with relevant jurisdiction in the environmental review process should cooperate with each other, State agencies, and Indian tribes on environmental review and project delivery activities at the earliest practicable time to avoid delays and duplication of effort later in the process, prevent potential conflicts, and ensure that planning and project development decisions reflect environmental values; and
(B) the cooperation referred to in subparagraph (A) should include the development of policies and the designation of staff that advise planning agencies and project sponsors of studies or other information foreseeably required for later Federal action and early consultation with appropriate State and local agencies and Indian tribes.
(2) Technical assistance
If requested at any time by a State or project sponsor, the Secretary and other Federal agencies with relevant jurisdiction in the environmental review process, shall, to the maximum extent practicable and appropriate, as determined by the agencies, provide technical assistance to the State or project sponsor in carrying out early coordination activities.
(3) Memorandum of agency agreement
If requested at any time by a State or project sponsor, the Federal lead agency, in consultation with other Federal agencies with relevant jurisdiction in the environmental review process, may establish memoranda of agreement with the project sponsor, Indian tribe, State and local governments, and other appropriate entities to carry out the early coordination activities, including providing technical assistance in identifying potential impacts and mitigation issues in an integrated fashion.
(j) Limitations
Nothing in this section preempts or interferes with—
(1) any obligation to comply with the provisions of any Federal law, including—
(A) the National Environmental Policy Act of 1969 (
(B) any other Federal environmental law;
(2) the reviewability of any final Federal agency action in a court of the United States or in the court of any State;
(3) any requirement for seeking, considering, or responding to public comment; or
(4) any power, jurisdiction, responsibility, duty, or authority that a Federal, State, or local governmental agency, Indian tribe, or project sponsor has with respect to carrying out a project or any other provision of law applicable to projects.
(k) Timing of claims
(1) Timing
(A) In general
Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or other approval issued by a Federal agency for a project study shall be barred unless the claim is filed not later than 3 years after publication of a notice in the Federal Register announcing that the permit, license, or other approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law that allows judicial review.
(B) Applicability
Nothing in this subsection creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of a permit, license, or other approval.
(2) New information
(A) In general
The Secretary shall consider new information received after the close of a comment period if the information satisfies the requirements for a supplemental environmental impact statement under title 40, Code of Federal Regulations (including successor regulations).
(B) Separate action
The preparation of a supplemental environmental impact statement or other environmental document, if required under this section, shall be considered a separate final agency action and the deadline for filing a claim for judicial review of the action shall be 3 years after the date of publication of a notice in the Federal Register announcing the action relating to such supplemental environmental impact statement or other environmental document.
(l) Categorical exclusions
(1) In general
Not later than 180 days after June 10, 2014, the Secretary shall—
(A) survey the use by the Corps of Engineers of categorical exclusions in projects since 2005;
(B) publish a review of the survey that includes a description of—
(i) the types of actions that were categorically excluded or could be the basis for developing a new categorical exclusion; and
(ii) any requests previously received by the Secretary for new categorical exclusions; and
(C) solicit requests from other Federal agencies and project sponsors for new categorical exclusions.
(2) New categorical exclusions
Not later than 1 year after June 10, 2014, if the Secretary has identified a category of activities that merit establishing a categorical exclusion that did not exist on the day before June 10, 2014, based on the review under paragraph (1), the Secretary shall publish a notice of proposed rulemaking to propose that new categorical exclusion, to the extent that the categorical exclusion meets the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations (or successor regulation).
(m) Review of project acceleration reforms
(1) In general
The Comptroller General of the United States shall—
(A) assess the reforms carried out under this section; and
(B) not later than 5 years and not later than 10 years after June 10, 2014, 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 results of the assessment.
(2) Contents
The reports under paragraph (1) shall include an evaluation of impacts of the reforms carried out under this section on—
(A) project delivery;
(B) compliance with environmental laws; and
(C) the environmental impact of projects.
(n) Performance measurement
The Secretary shall establish a program to measure and report on progress made toward improving and expediting the planning and environmental review process.
(o) Implementation guidance
The Secretary shall prepare, in consultation with the Council on Environmental Quality and other Federal agencies with jurisdiction over actions or resources that may be impacted by a project, guidance documents that describe the coordinated environmental review processes that the Secretary intends to use to implement this section for the planning of projects, in accordance with the civil works program of the Corps of Engineers and all applicable law.
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsecs. (a)(1), (2), (b)(1), (d)(1), (3)(A), (4)(B), (f)(1)(D)(i), (g)(5)(A), (h)(5)(B), and (j)(1)(A), is
The Water Resources Reform and Development Act of 2014, referred to in subsec. (h)(5)(C)(iii), is
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.
Amendments
2014—
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be "State".
§2348a. NEPA reporting
(a) Definitions
In this section:
(1) Categorical exclusion
The term "categorical exclusion" has the meaning given the term in section 1508.1 of title 40, Code of Federal Regulations (or a successor regulation).
(2) Environmental assessment
The term "environmental assessment" has the meaning given the term in section 1508.1 of title 40, Code of Federal Regulations (or a successor regulation).
(3) Environmental impact statement
The term "environmental impact statement" means a detailed written statement required under section 102(2)(C) of the National Environmental Policy Act of 1969 (
(4) Finding of no significant impact
The term "finding of no significant impact" has the meaning given the term in section 1508.1 of title 40, Code of Federal Regulations (or a successor regulation).
(5) Project study
The term "project study" means a feasibility study for a project carried out pursuant to
(b) Reports
(1) NEPA data
(A) In general
The Secretary shall carry out a process to track, and annually 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 containing the information described in subparagraph (B).
(B) Information described
The information referred to in subparagraph (A) is, with respect to the Corps of Engineers—
(i) the number of project studies for which a categorical exclusion was used during the reporting period;
(ii) the number of project studies for which the decision to use a categorical exclusion, to prepare an environmental assessment, or to prepare an environmental impact statement is pending on the date on which the report is submitted;
(iii) the number of project studies for which an environmental assessment was issued during the reporting period, broken down by whether a finding of no significant impact, if applicable, was based on mitigation;
(iv) the length of time the Corps of Engineers took to complete each environmental assessment described in clause (iii);
(v) the number of project studies pending on the date on which the report is submitted for which an environmental assessment is being drafted;
(vi) the number of project studies for which an environmental impact statement was issued during the reporting period;
(vii) the length of time the Corps of Engineers took to complete each environmental impact statement described in clause (vi); and
(viii) the number of project studies pending on the date on which the report is submitted for which an environmental impact statement is being drafted.
(2) Public access to NEPA reports
The Secretary shall make each annual report required under paragraph (1) publicly available (including on a publicly available website).
(
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (a)(5), is
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2349. Categorical exclusions in emergencies
For the repair, reconstruction, or rehabilitation of a water resources project that is in operation or under construction when damaged by an event or incident that results in a declaration by the President of a major disaster or emergency pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (
(1) in the same location with the same capacity, dimensions, and design as the original water resources project as before the declaration described in this section; 1 and
(2) commenced within a 2-year period beginning on the date of a declaration described in this section.
(
Editorial Notes
References in Text
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in text, is
This section, referred to in par. (1), means section 1005 of title I of
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
1 See References in Text note below.
§2350. Corrosion prevention
(a) In general
To the greatest extent practicable, the Secretary shall encourage and incorporate corrosion prevention activities at water resources development projects.
(b) Activities
In carrying out subsection (a), the Secretary, to the greatest extent practicable, shall ensure that contractors performing work for water resources development projects—
(1) use best practices to carry out corrosion prevention activities in the field;
(2) use industry-recognized standards and corrosion mitigation and prevention methods when—
(A) determining protective coatings;
(B) selecting materials; and
(C) determining methods of cathodic protection, design, and engineering for corrosion prevention;
(3) use certified coating application specialists and cathodic protection technicians and engineers;
(4) use best practices in environmental protection to prevent environmental degradation and to ensure careful handling of all hazardous materials;
(5) demonstrate a history of employing industry-certified inspectors to ensure adherence to best practices and standards; and
(6) demonstrate a history of compliance with applicable requirements of the Occupational Safety and Health Administration.
(c) Corrosion prevention activities defined
In this section, the term "corrosion prevention activities" means—
(1) the application and inspection of protective coatings for complex work involving steel and cementitious structures, including structures that will be exposed in immersion;
(2) the installation, testing, and inspection of cathodic protection systems; and
(3) any other activities related to corrosion prevention the Secretary determines appropriate.
(d) Report
In the first annual report submitted to Congress after December 16, 2016, in accordance with
(1) a description of the actions the Secretary has taken to implement this section; and
(2) a description of the projects utilizing corrosion prevention activities, including which activities were undertaken.
(
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.
Amendments
2016—Subsec. (d).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2351. Durability, sustainability, and resilience
In carrying out the activities of the Corps of Engineers, the Secretary, to the maximum extent practicable, shall encourage the use of durable and sustainable materials and resilient construction techniques that—
(1) allow a water resources infrastructure project—
(A) to resist hazards due to a major disaster; and
(B) to continue to serve the primary function of the water resources infrastructure project following a major disaster;
(2) reduce the magnitude or duration of a disruptive event to a water resources infrastructure project; and
(3) have the absorptive capacity, adaptive capacity, and recoverability to withstand a potentially disruptive event.
(
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
§2351a. Operation and maintenance of existing infrastructure
The Secretary shall improve the reliability, and operation and maintenance of, existing infrastructure of the Corps of Engineers, and, as necessary, improve its resilience to cyber-related threats.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, 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 102 of
§2351b. Federal breakwaters and jetties
(a) In general
In carrying out repair or maintenance activity of a Federal jetty or breakwater associated with an authorized navigation project, the Secretary shall, notwithstanding the authorized dimensions of the jetty or breakwater, ensure that such repair or maintenance activity is sufficient to meet the authorized purpose of such project, including ensuring that any harbor or inland harbor associated with the project is protected from projected changes in wave action or height (including changes that result from relative sea level change over the useful life of the project).
(b) Classification of activity
The Secretary may not classify any repair or maintenance activity of a Federal jetty or breakwater carried out under subsection (a) as major rehabilitation of such jetty or breakwater—
(1) if the Secretary determines that—
(A) projected changes in wave action or height, including changes that result from relative sea level change, will diminish the functionality of the jetty or breakwater to meet the authorized purpose of the project; and
(B) such repair or maintenance activity is necessary to restore such functionality; or
(2) if—
(A) the Secretary has not carried out regular and routine Federal maintenance activity at the jetty or breakwater; and
(B) the structural integrity of the jetty or breakwater is degraded as a result of a lack of such regular and routine Federal maintenance activity.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of
§2352. Funding to process permits
(a) Funding to process permits
(1) Definitions
In this subsection:
(A) Natural gas company
The term "natural gas company" has the meaning given the term in
(B) Public-utility company
The term "public-utility company" has the meaning given the term in
(C) Railroad carrier
The term "railroad carrier" has the meaning given the term in
(2) Permit processing
(A) In general
The Secretary, after public notice, may accept and expend funds contributed by a non-Federal public entity or a public-utility company, natural gas company, or railroad carrier to expedite the evaluation of a permit of that entity, company, or carrier related to a project or activity for a public purpose under the jurisdiction of the Department of the Army.
(B) Mitigation bank instrument processing
An activity carried out by the Secretary to expedite evaluation of a permit described in subparagraph (A) may include the evaluation of an instrument for a mitigation bank if—
(i) the non-Federal public entity, public-utility company, natural gas company, or railroad carrier applying for the permit described in that subparagraph is the sponsor of the mitigation bank; and
(ii) expediting evaluation of the instrument is necessary to expedite evaluation of the permit described in that subparagraph.
(3) Effect on other entities
To the maximum extent practicable, the Secretary shall ensure that expediting the evaluation of a permit through the use of funds accepted and expended under this section does not adversely affect the timeline for evaluation (in the Corps district in which the project or activity is located) of permits under the jurisdiction of the Department of the Army of other entities that have not contributed funds under this section.
(4) GAO study
Not later than December 31, 2022, the Comptroller General of the United States shall carry out a followup study of the implementation by the Secretary of the authority provided under paragraph (2) to public-utility companies, natural gas companies, and railroad carriers, including an evaluation of the compliance with the requirements of this section and, with respect to a permit for those entities, the requirements of applicable Federal laws.
(b) Effect on permitting
(1) In general
In carrying out this section, the Secretary shall ensure that the use of funds accepted under subsection (a) will not impact impartial decisionmaking with respect to permits, either substantively or procedurally.
(2) Impartial decisionmaking
In carrying out this section, the Secretary shall ensure that the evaluation of permits carried out using funds accepted under this section shall—
(A) be reviewed by—
(i) the District Commander, or the Commander's designee, of the Corps District in which the project or activity is located; or
(ii) the Commander of the Corps Division in which the District is located if the evaluation of the permit is initially conducted by the District Commander; and
(B) utilize the same procedures for decisions that would otherwise be required for the evaluation of permits for similar projects or activities not carried out using funds authorized under this section.
(c) Limitation on use of funds
None of the funds accepted under this section shall be used to carry out a review of the evaluation of permits required under subsection (b)(2)(A).
(d) Public availability
(1) In general
The Secretary shall ensure that all final permit decisions carried out using funds authorized under this section are made available to the public in a common format, including on the Internet, and in a manner that distinguishes final permit decisions under this section from other final actions of the Secretary.
(2) Decision document
The Secretary shall—
(A) use a standard decision document for evaluating all permits using funds accepted under this section; and
(B) make the standard decision document, along with all final permit decisions, available to the public, including on the Internet.
(3) Agreements
The Secretary shall make all active agreements to accept funds under this section available on a single public Internet site.
(e) Reporting
(1) In general
The Secretary shall prepare an annual report on the implementation of this section, which, at a minimum, shall include for each district of the Corps of Engineers that accepts funds under this section—
(A) a comprehensive list of any funds accepted under this section during the previous fiscal year;
(B) a comprehensive list of the permits reviewed and approved using funds accepted under this section during the previous fiscal year, including a description of the size and type of resources impacted and the mitigation required for each permit; and
(C) a description of the training offered in the previous fiscal year for employees that is funded in whole or in part with funds accepted under this section.
(2) Submission
Not later than 90 days after the end of each fiscal year, the Secretary shall—
(A) submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives the annual report described in paragraph (1); and
(B) make each report received under subparagraph (A) available on a single publicly accessible Internet site.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2000, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Section was formerly classified as a note under
Amendments
2022—Subsec. (a)(2).
2018—Subsec. (a)(3).
Subsec. (a)(4), (5).
2016—Subsec. (a)(1)(C).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(5).
2014—Subsec. (a)(1), (2).
Subsec. (a)(3) to (5).
Subsecs. (d), (e).
"(d)
"(e)
2010—Subsec. (a).
Subsec. (b).
Subsecs. (c) to (e).
2009—Subsec. (c).
2007—Subsec. (c).
2006—Subsec. (c).
2005—Subsec. (a).
Subsec. (c).
2003—Subsec. (a).
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2353. Structural health monitoring
(a) In general
The Secretary shall design and develop a structural health monitoring program to assess and improve the condition of infrastructure constructed and maintained by the Corps of Engineers, including research, design, and development of systems and frameworks for—
(1) response to flood and earthquake events;
(2) predisaster mitigation measures;
(3) lengthening the useful life of the infrastructure; and
(4) identifying risks due to sea level rise.
(b) Consultation and considerations
In developing the program under subsection (a), the Secretary shall—
(1) consult with academic and other experts; and
(2) consider models for maintenance and repair information, the development of degradation models for real-time measurements and environmental inputs, and research on qualitative inspection data as surrogate sensors.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2353a. Aging infrastructure
(a) Definitions
In this section:
(1) Aging infrastructure
The term "aging infrastructure" means a water resources development project of the Corps of Engineers, or any other water resources, water storage, or irrigation project of another Federal agency, that is greater than 75 years old.
(2) Enhanced inspection
The term "enhanced inspection" means an inspection that uses current or innovative technology, including Light Detection and Ranging (commonly known as "LiDAR"), ground penetrating radar, subsurface imaging, or subsurface geophysical techniques, to detect whether the features of the aging infrastructure are structurally sound and can operate as intended, or are at risk of failure.
(b) Contracts for enhanced inspection
(1) In general
The Secretary may carry out enhanced inspections of aging infrastructure, pursuant to a contract with the owner or operator of the aging infrastructure.
(2) Certain circumstances
Subject to the availability of appropriations, or funds available pursuant to subsection (d), the Secretary shall enter into a contract described in paragraph (1), if—
(A) the owner or operator of the aging infrastructure requests that the Secretary carry out the enhanced inspections; and
(B) the inspection is at the full expense of such owner or operator.
(c) Limitation
The Secretary shall not require a non-Federal entity associated with a project under the jurisdiction of another Federal agency to carry out corrective or remedial actions in response to an enhanced inspection carried out under this section.
(d) Funding
The Secretary is authorized to accept funds from an owner or operator of aging infrastructure, and may use such funds to carry out an enhanced inspection pursuant to a contract entered into with such owner or operator under this section.
(
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.
Statutory Notes and Related Subsidiaries
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of div. AA of
§2354. Easements for electric, telephone, or broadband service facilities
(a) Definition of water resources development project
In this section, the term "water resources development project" means a project under the administrative jurisdiction of the Corps of Engineers that is subject to part 327 of title 36, Code of Federal Regulations (or successor regulations).
(b) No consideration for easements
The Secretary may not collect consideration for an easement across water resources development project land for the electric, telephone, or broadband service facilities of nonprofit organizations eligible for financing under the Rural Electrification Act of 1936 (
(c) Administrative expenses
Nothing in this section affects the authority of the Secretary under
(
Editorial Notes
References in Text
The Rural Electrification Act of 1936, referred to in subsec. (b), is act May 20, 1936, ch. 432,
Codification
Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, 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 1002 of
§2355. Prior project authorization
In any case in which a project under the jurisdiction of the Secretary is budgeted under a different business line than the business line under which the project was originally authorized, the Secretary shall ensure that the project is carried out in accordance with any requirements that apply to the business line under which the project was originally authorized.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, 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 102 of
§2356. Project consultation
(a) Reports required
Not later than 180 days after December 27, 2020, the Secretary shall submit the following reports:
(1) The report required under section 1214 of the Water Resources Development Act of 2018 (
(2) The report required under section 1120(a)(3) of the Water Resources Development Act of 2016 (
(b) Environmental justice updates
(1) In general
In the formulation of water development resources projects, the Secretary shall comply with any existing Executive order regarding environmental justice in effect as of December 27, 2020, to address any disproportionate and adverse human health or environmental effects on minority communities, low-income communities, and Indian Tribes.
(2) Update
Not later than 1 year after December 27, 2020, the Secretary shall review, and shall update, where appropriate, any policies, regulations, and guidance of the Corps of Engineers necessary to implement any Executive order described in paragraph (1) with respect to water resources development projects.
(3) Requirements
In updating the policies, regulations, or guidance under paragraph (2), the Secretary shall—
(A) provide notice to interested non-Federal stakeholders, including representatives of minority communities, low-income communities, and Indian Tribes;
(B) provide opportunities for interested stakeholders to comment on potential updates of policies, regulations, or guidance;
(C) consider the recommendations from the reports submitted under subsection (a); and
(D) promote the meaningful involvement of minority communities, low-income communities, and Indian Tribes.
(c) Community engagement
In carrying out a water resources development project, the Secretary shall, to the extent practicable—
(1) promote the meaningful involvement of minority communities, low-income communities, and Indian Tribes;
(2) provide guidance and technical assistance to such communities or Tribes to increase understanding of the project development and implementation activities, regulations, and policies of the Corps of Engineers; and
(3) cooperate with State, Tribal, and local governments with respect to activities carried out pursuant to this subsection.
(d) Tribal lands and consultation
In carrying out water resources development projects, the Secretary shall, to the extent practicable and in accordance with the Tribal Consultation Policy affirmed and formalized by the Secretary on November 1, 2012 (or a successor policy)—
(1) promote meaningful involvement with Indian Tribes specifically on any Tribal lands near or adjacent to any water resources development projects, for purposes of identifying lands of ancestral, cultural, or religious importance;
(2) consult with Indian Tribes specifically on any Tribal areas near or adjacent to any water resources development projects, for purposes of identifying lands, waters, and other resources critical to the livelihood of the Indian Tribes; and
(3) cooperate with Indian Tribes to avoid, or otherwise find alternate solutions with respect to, such areas.
(
Editorial Notes
References in Text
Section 1214 of the Water Resources Development Act of 2018, referred to in subsec. (a)(1), is section 1214 of
Section 1120(a)(3) of the Water Resources Development Act of 2016, referred to in subsec. (a)(2), is section 1120(a)(3) of
Codification
Section was enacted as a part of the Water Resources Development Act of 2020, and not as a 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 div. AA of
§2357. Managed aquifer recharge study and working group
(a) Assessment
(1) In general
The Secretary shall, in consultation with applicable non-Federal interests, conduct a national assessment of carrying out managed aquifer recharge projects to address drought, water resiliency, and aquifer depletion at authorized water resources development projects.
(2) Requirements
In carrying out paragraph (1), the Secretary shall—
(A) assess and identify opportunities to support non-Federal interests, including Tribal communities, in carrying out managed aquifer recharge projects; and
(B) assess preliminarily local hydrogeologic conditions relevant to carrying out managed aquifer recharge projects.
(3) Coordination
In carrying out paragraph (1), the Secretary shall coordinate, as appropriate, with the heads of other Federal agencies, States, regional governmental agencies, units of local government, experts in managed aquifer recharge, and Tribes.
(b) Feasibility studies
(1) Authorization
The Secretary is authorized to carry out feasibility studies, at the request of a non-Federal interest, of managed aquifer recharge projects in areas that are experiencing, or have recently experienced, prolonged drought conditions, aquifer depletion, or water supply scarcity.
(2) Limitation
The Secretary may carry out not more than 10 feasibility studies under this subsection.
(3) Use of information
The Secretary shall, to the maximum extent practicable, use information gathered from the assessment conducted under subsection (a) in identifying and selecting feasibility studies to carry out under this subsection.
(4) Cost share
The Federal share of the cost of a feasibility study carried out under this subsection shall be 90 percent.
(c) Working group
(1) In general
Not later than 180 days after December 23, 2022, the Secretary shall establish a managed aquifer recharge working group made up of subject matter experts within the Corps of Engineers and relevant non-Federal stakeholders.
(2) Composition
In establishing the working group under paragraph (1), the Secretary shall ensure that members of the working group have expertise working with—
(A) projects providing water supply storage to meet regional water supply demand, particularly in regions experiencing drought;
(B) the protection of groundwater supply, including promoting infiltration and increased recharge in groundwater basins, and groundwater quality;
(C) aquifer storage, recharge, and recovery wells;
(D) dams that provide recharge enhancement benefits;
(E) groundwater hydrology;
(F) conjunctive use water systems; and
(G) agricultural water resources, including the use of aquifers for irrigation purposes.
(3) Duties
The working group established under this subsection shall—
(A) advise the Secretary regarding the development and execution of the assessment under subsection (a) and any feasibility studies under subsection (b);
(B) assist Corps of Engineers offices at the headquarter, division, and district levels with raising awareness of non-Federal interests of the potential benefits of carrying out managed aquifer recharge projects; and
(C) assist with the development of the report required to be submitted under subsection (d).
(d) Report to Congress
Not later than 2 years after December 23, 2022, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on managed aquifer recharge that includes—
(1) the results of the assessment conducted under subsection (a) and any feasibility studies carried out under subsection (b), including data collected under such assessment and studies and any recommendations on managed aquifer recharge opportunities for non-Federal interests, States, local governments, and Tribes;
(2) a status update on the implementation of the recommendations included in the report of the U.S. Army Corps of Engineers Institute for Water Resources entitled "Managed Aquifer Recharge and the U.S. Army Corps of Engineers: Water Security through Resilience", published in April 2020 (2020–WP–01); and
(3) an evaluation of the benefits of creating a new or modifying an existing planning center of expertise for managed aquifer recharge, and identify potential locations for such a center of expertise, if feasible.
(e) Savings provision
Nothing in this section affects the non-Federal share of the cost of construction of a managed aquifer recharge project under
(f) Definitions
In this section:
(1) Managed aquifer recharge
The term "managed aquifer recharge" means the intentional banking and treatment of water in aquifers for storage and future use.
(2) Managed aquifer recharge project
The term "managed aquifer recharge project" means a project to incorporate managed aquifer recharge features into a water resources development project.
(
Editorial Notes
Codification
Section was enacted as part of the Water Resources Development Act of 2022, and also as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 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 8002 of