[USC10] 33 USC CHAPTER 36, SUBCHAPTER V: GENERAL PROVISIONS
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33 USC CHAPTER 36, SUBCHAPTER V: GENERAL PROVISIONS
From Title 33—NAVIGATION AND NAVIGABLE WATERSCHAPTER 36—WATER RESOURCES DEVELOPMENT

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 section 701h of this title, the Secretary may accept funds from a non-Federal interest for any authorized water resources development project that has exceeded its maximum cost under subsection (a), and use such funds to carry out such project, if the use of such funds does not increase the Federal share of the cost of such project.

(Pub. L. 99–662, title IX, §902, Nov. 17, 1986, 100 Stat. 4183; Pub. L. 100–676, §3(b), Nov. 17, 1988, 102 Stat. 4014; Pub. L. 113–121, title I, §1023, June 10, 2014, 128 Stat. 1228.)

References in Text

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

The date of enactment of this Act, referred to in subsec. (a), is the date of enactment of Pub. L. 99–662, which was approved Nov. 17, 1986.

The Water Resources Development Act of 1988, referred to in subsec. (a), is Pub. L. 100–676, Nov. 17, 1988, 102 Stat. 4012. For complete classification of this Act to the Code, see Short Title of 1988 Amendment note set out under section 2201 of this title and Tables.

Amendments

2014Pub. L. 113–121 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

1988Pub. L. 100–676, §3(b)(1), substituted "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" for "in this Act, or an amendment made by this Act, for a project".

Par. (1). Pub. L. 100–676, §3(b)(2), inserted ", in any later law," after "in this Act", and "or any later law" after "by this Act".

Par. (2). Pub. L. 100–676, §3(b)(3), (4), inserted "or any later law" after "of this Act" in subpars. (A) and (B).

§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.

(Pub. L. 99–662, title IX, §904, Nov. 17, 1986, 100 Stat. 4185; Pub. L. 101–640, title III, §315, Nov. 28, 1990, 104 Stat. 4641; Pub. L. 104–303, title II, §231, Oct. 12, 1996, 110 Stat. 3704; Pub. L. 110–114, title II, §2033(a), Nov. 8, 2007, 121 Stat. 1084.)

Amendments

2007Pub. L. 110–114 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

1996Pub. L. 104–303 inserted "and information regarding potential loss of human life that may be associated with flooding and coastal storm events," after "unquantifiable,".

1990Pub. L. 101–640 inserted "(including preservation and enhancement of the environment)" after "environment".

Rural Project Evaluation and Selection Criteria

Pub. L. 102–580, title II, §214, Oct. 31, 1992, 106 Stat. 4831, directed Comptroller General, not later than 18 months after Oct. 31, 1992, to report to Congress with specific legislative and other recommendations on improving the equitable distribution of water resources development projects in rural areas, prior to repeal by Pub. L. 104–316, title I, §117, Oct. 19, 1996, 110 Stat. 3835.

§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 section 2215 of this title.

(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 (114 Stat. 2680–2694), a general reevaluation report, and a limited reevaluation report.

(b) Repealed. Pub. L. 113–121, title I, §1002(a)(1), June 10, 2014, 128 Stat. 1198

(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).

(Pub. L. 99–662, title IX, §905, Nov. 17, 1986, 100 Stat. 4185; Pub. L. 106–541, title II, §222(a), Dec. 11, 2000, 114 Stat. 2597; Pub. L. 110–114, title II, §2043(b), Nov. 8, 2007, 121 Stat. 1101; Pub. L. 113–121, title I, §1002(a)–(c), June 10, 2014, 128 Stat. 1198.)

References in Text

This Act, referred to in subsec. (a)(3)(B), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables.

Section 903(b), referred to in subsec. (a)(3)(B), is section 903(b) of Pub. L. 99–662, title IX, Nov. 17, 1986, 100 Stat. 4184, which is not classified to the Code.

The Water Resources Development Act of 2000, referred to in subsec. (a)(4), is Pub. L. 106–541, Dec. 11, 2000, 114 Stat. 2572. Title VI of the Act is not classified to the Code. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 2201 of this title and Tables.

Amendments

2014—Subsec. (a)(1). Pub. L. 113–121, §1002(a)(2), struck out "perform a reconnaissance study and" after "shall".

Subsec. (a)(2). Pub. L. 113–121, §1002(b), inserted at end "A feasibility report shall include a preliminary analysis of the Federal interest and the costs, benefits, and environmental impacts of the project."

Subsec. (b). Pub. L. 113–121, §1002(a)(1), struck out subsec. (b) which related to performing reconnaissance studies prior to initiating feasibility studies.

Subsec. (g). Pub. L. 113–121, §1002(c), added subsec. (g).

2007—Subsec. (a). Pub. L. 110–114, §2043(b)(1), designated first sentence of existing provisions as par. (1) and inserted subsec. (a) and par. (1) headings, substituted "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 perform a reconnaissance study and" for "the Secretary, the Secretary shall" in par. (1), designated second and third sentences of existing provisions as par. (2) and inserted heading, substituted "A feasibility report" for "Such feasibility report" and "The feasibility report" in par. (2), added pars. (3) and (4), and struck out last sentence of existing provisions which read as follows: "This subsection shall not apply to (1) any study with respect to which a report has been submitted to Congress before November 17, 1986, (2) any study for a project, which project is authorized for construction by this Act and is not subject to section 903(b), (3) any study for a project which is authorized under any of the following sections: section 205 of the Flood Control Act of 1948 (33 U.S.C. 701s), section 2 of the Flood Control Act of August 28, 1946 (33 U.S.C. 701r), section 107 of the River and Harbor Act of 1960 (33 U.S.C. 577), section 3 of the Act entitled 'An Act authorizing Federal participation in the cost of protecting the shores of publicly owned property', approved August 13, 1946 (33 U.S.C. 426g), and section 111 of the River and Harbor Act of 1968 (33 U.S.C. 426i), and (4) general studies not intended to lead to recommendation of a specific water resources project."

Subsec. (b). Pub. L. 110–114, §2043(b)(2)(A), inserted heading.

Subsecs. (c) to (f). Pub. L. 110–114, §2043(b)(2)(B)–(E), added subsec. (c), redesignated former subsecs. (c) to (e) as (d) to (f), respectively, and inserted headings in subsecs. (d) and (e).

2000—Subsec. (e). Pub. L. 106–541 added subsec. (e).

Natural Infrastructure

Pub. L. 115–270, title I, §1149(c), Oct. 23, 2018, 132 Stat. 3787, provided that: "In carrying out a feasibility report developed under section 905 of the Water Resources Development Act of 1986 (33 U.S.C. 2282) for a project for flood risk management or hurricane and storm damage risk reduction, the Secretary [of the Army] shall consider the use of both traditional and natural infrastructure alternatives, alone or in conjunction with each other, if those alternatives are practicable."

Continuation of Studies

Pub. L. 113–121, title I, §1002(d), June 10, 2014, 128 Stat. 1199, provided that: "The Secretary [of the Army] shall continue to carry out a study for which a reconnaissance level investigation has been initiated before the date of enactment of this Act [June 10, 2014] as if this section [amending this section], including the amendments made by this section, had not been enacted."

Expedited Completion of Reports

Pub. L. 113–121, title I, §1003, June 10, 2014, 128 Stat. 1199, provided that: "The Secretary [of the Army] shall—

"(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 (33 U.S.C. 2287)."

National Academy of Sciences Study

Pub. L. 106–541, title II, §216, Dec. 11, 2000, 114 Stat. 2595, provided that:

"(a) Definitions.—In this section, the following definitions apply:

"(1) Academy.—The term 'Academy' means the National Academy of Sciences.

"(2) Method.—The term 'method' means a method, model, assumption, or other pertinent planning tool used in conducting an economic or environmental analysis of a water resources project, including the formulation of a feasibility report.

"(3) Feasibility report.—The term 'feasibility report' means each feasibility report, and each associated environmental impact statement and mitigation plan, prepared by the Corps of Engineers for a water resources project.

"(4) Water resources project.—The term 'water resources project' means a project for navigation, a project for flood control, a project for hurricane and storm damage reduction, a project for emergency streambank and shore protection, a project for ecosystem restoration and protection, and a water resources project of any other type carried out by the Corps of Engineers.

"(b) Independent Peer Review of Projects.—

"(1) In general.—Not later than 90 days after the date of enactment of this Act [Dec. 11, 2000], the Secretary [of the Army] shall contract with the Academy to study, and make recommendations relating to, the independent peer review of feasibility reports.

"(2) Study elements.—In carrying out a contract under paragraph (1), the Academy shall study the practicality and efficacy of the independent peer review of the feasibility reports, including—

"(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) Academy report.—Not later than 1 year after the date of a contract under paragraph (1), the Academy shall submit to the Secretary, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committee on Environment and Public Works of the Senate a report that includes—

"(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) Authorization of appropriations.—There is authorized to be appropriated to carry out this subsection $1,000,000, to remain available until expended.

"(c) Independent Peer Review of Methods for Project Analysis.—

"(1) In general.—Not later than 90 days after the date of enactment of this Act [Dec. 11, 2000], the Secretary [of the Army] shall contract with the Academy to conduct a study that includes—

"(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) Academy report.—Not later than 1 year after the date of a contract under paragraph (1), the Academy shall transmit to the Secretary, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committee on Environment and Public Works of the Senate a report that includes—

"(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) Authorization of appropriations.—There is authorized to be appropriated to carry out this subsection $2,000,000. Such sums shall remain available until expended."

Engineering Consulting Services

Pub. L. 106–541, title II, §219, Dec. 11, 2000, 114 Stat. 2596, provided that: "In conducting a feasibility study for a water resources project, the Secretary [of the Army], to the maximum extent practicable, should not employ a person for engineering and consulting services if the same person is also employed by the non-Federal interest for such services unless there is only 1 qualified and responsive bidder for such services."

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 section 2280 of this title.

(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 (42 U.S.C. 4321 et seq.). The Chief of Engineers shall use such benchmarks as a management tool to make the feasibility study process more efficient in all districts of the Corps of Engineers.

(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 section 2343 of this title; and

(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).

(Pub. L. 110–114, title II, §2033, Nov. 8, 2007, 121 Stat. 1084; Pub. L. 113–121, title II, §2103, June 10, 2014, 128 Stat. 1278.)

References in Text

The National Environmental Policy Act of 1969, referred to in subsec. (c)(1), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Codification

Section is comprised of section 2033 of Pub. L. 110–114. Subsec. (a) of section 2033 of Pub. L. 110–114 amended section 2281 of this title.

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). Pub. L. 113–121 added par. (3).

"Secretary" Defined

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

§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.

(Pub. L. 113–76, div. D, title I, §104, Jan. 17, 2014, 128 Stat. 157.)

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 section 2282(a) of this title shall—

(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) Termination of authorization

A feasibility study for which the Secretary has issued a determination under subsection (b) is not authorized after the last day of the 1-year period beginning on the date of the determination if the Secretary has not completed the study on or before such last day.

(d) Exception

(1) In general

Notwithstanding the requirements of subsection (c), 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 subsections (a) and (c).

(2) Factors

In making a determination that a study is too complex to comply with the requirements of subsections (a) and (c), 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.

(4) Limitation

The Secretary shall not extend the timeline for a feasibility study for a period of more than 10 years, and any feasibility study that is not completed before that date shall no longer be authorized.

(e) 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 section 2348(e) of this title that may be required by law to conduct or issue a review, analysis, or opinion on or to make a determination concerning a permit or license for the study; and

(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.

(f) 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.

(g) 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.

(Pub. L. 113–121, title I, §1001, June 10, 2014, 128 Stat. 1196; Pub. L. 115–270, title I, §1330(b), Oct. 23, 2018, 132 Stat. 3827.)

References in Text

Section 1005, referred to in subsec. (e)(1), is section 1005 of Pub. L. 113–121, which enacted section 2349 of this title and amended generally section 2348 of this title.

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. (d)(4). Pub. L. 115–270 substituted "10 years" for "7 years".

"Secretary" Defined

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

§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 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.

(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; and

(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 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 section 2282 of this title.

(B) Inclusions

The term "feasibility report" includes—

(i) a report described in section 2215(d)(2) of this title; and

(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 section 2215 of this title.

(4) Non-Federal interest

The term "non-Federal interest" has the meaning given that term in section 1962d–5b of title 42.

(5) Water resources development project

The term "water resources development project" includes a project under an environmental infrastructure assistance program if authorized before December 16, 2016.

(Pub. L. 113–121, title VII, §7001, June 10, 2014, 128 Stat. 1360; Pub. L. 114–322, title I, §1157(b), Dec. 16, 2016, 130 Stat. 1666; Pub. L. 115–270, title I, §1332(a), Oct. 23, 2018, 132 Stat. 3834.)

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. (a)(4). Pub. L. 115–270, §1332(a)(1), added par. (4).

Subsec. (b)(1). Pub. L. 115–270, §1332(a)(2), substituted "studies, proposed modifications to authorized water resources development projects and feasibility studies, and proposed modifications for an environmental infrastructure program" for "studies and proposed modifications to authorized water resources development projects and feasibility studies".

Subsec. (c)(4). Pub. L. 115–270, §1332(a)(5), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: "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."

Subsecs. (d) to (g). Pub. L. 115–270, §1332(a)(3), (4), added subsec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively.

2016—Subsec. (f)(5). Pub. L. 114–322 added par. (5).

Dissemination of Information

Pub. L. 115–270, title I, §1104, Oct. 23, 2018, 132 Stat. 3771, provided that:

"(a) Findings.—Congress finds the following:

"(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 (Public Law 113–121) established a new and transparent process to review and prioritize the water resources development activities of the Corps of Engineers with strong congressional oversight.

"(3) Section 7001 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 2282d) requires the Secretary [of the Army] to develop and submit to Congress each year a Report to Congress on Future Water Resources Development and, as part of the annual report process, to—

"(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) Dissemination of Process Information.—The Secretary shall develop, support, and implement education and awareness efforts for non-Federal interests with respect to the annual Report to Congress on Future Water Resources Development required under section 7001 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 2282d), including efforts to—

"(1) develop and disseminate technical assistance materials, seminars, and guidance on the annual process as it relates to non-Federal interests;

"(2) 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;

"(3) 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

"(4) provide, at the request of a non-Federal interest, assistance with researching and identifying existing project authorizations and Corps of Engineers decision documents."

"Secretary" Defined

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

§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.

(Pub. L. 114–322, title I, §1132, Dec. 16, 2016, 130 Stat. 1653.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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 section 2317(a)(1) of this title. In carrying out this subsection, the Secretary shall consult with appropriate Federal and non-Federal agencies.

(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 section 1962d–5b of title 42.

(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 (16 U.S.C. 1531, et seq.), or

(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 Public Law 99–88, and the project for Mississippi Delta Region, Louisiana, authorized by the Flood Control Act of 1965, shall be considered to provide benefits that are national for purposes of this section.

(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 [16 U.S.C. 661 et seq.], and nothing in this section is intended to affect that 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 (42 U.S.C. 4321 et seq.).

(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 (42 U.S.C. 4321 et seq.).

(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 section 2317(a)(1) of this title will be met.

(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.

(Pub. L. 99–662, title IX, §906, Nov. 17, 1986, 100 Stat. 4186; Pub. L. 102–580, title III, §333(a), Oct. 31, 1992, 106 Stat. 4852; Pub. L. 106–53, title II, §221, Aug. 17, 1999, 113 Stat. 295; Pub. L. 106–541, title II, §224(a), Dec. 11, 2000, 114 Stat. 2597; Pub. L. 110–114, title II, §2036(a), Nov. 8, 2007, 121 Stat. 1092; Pub. L. 113–121, title I, §1040(a), June 10, 2014, 128 Stat. 1239; Pub. L. 114–322, title I, §1162, Dec. 16, 2016, 130 Stat. 1668.)

References in Text

The Endangered Species Act, as amended, referred to in subsec. (e)(2), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified generally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.

Public Law 99–88, referred to in subsec. (f), is Pub. L. 99–88, Aug. 15, 1985, 99 Stat. 293, known as the Supplemental Appropriations Act, 1985. Provisions of Pub. L. 99–88 authorizing the project for the Atchafalaya Floodway System, Louisiana, are not classified to the Code. For complete classification of this Act to the Code, see Tables.

The Flood Control Act of 1965, referred to in subsec. (f), is title II of Pub. L. 89–298, Oct. 27, 1965, 79 Stat. 1073. Provisions of that Act authorizing the project for Mississippi Delta Region, Louisiana, are not classified to the Code. For complete classification of this Act to the Code, see Tables.

The Fish and Wildlife Coordination Act, referred to in subsec. (g), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sections 661 to 666c–1 of Title 16, Conservation. For complete classification of this Act to the Code, see section 661(a) of Title 16, Short Title note set out under section 661 of Title 16, and Tables.

The National Environmental Policy Act of 1969, referred to in subsec. (h)(9), (10), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Amendments

2016—Subsec. (h)(4)(D) to (F). Pub. L. 114–322, §1162(1)(A), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively.

Subsec. (h)(6)(C). Pub. L. 114–322, §1162(1)(B), substituted "impacts, including impacts to habitat connectivity" for "impacts".

Subsec. (h)(11). Pub. L. 114–322, §1162(1)(C), added par. (11) and struck out former par. (11). Prior to amendment, text read as follows: "Nothing in this subsection requires the Secretary to undertake additional mitigation for existing projects for which mitigation has already been initiated."

Subsecs. (j), (k). Pub. L. 114–322, §1162(2), added subsecs. (j) and (k).

2014—Subsec. (d)(1). Pub. L. 113–121, §1040(a)(1)(A), inserted "for damages to ecological resources, including terrestrial and aquatic resources, and" after "mitigate", "ecological resources and" after "impact on", "without the implementation of mitigation measures" before period at end of first sentence, and "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 section 2317(a)(1) of this title." after "to the extent possible."

Subsec. (d)(2). Pub. L. 113–121, §1040(a)(1)(B)(iii), which directed insertion of "using a watershed approach" after "projects" was executed by making the insertion after "projects" the first place appearing to reflect the probable intent of Congress.

Pub. L. 113–121, §1040(a)(1)(B)(i), (ii), substituted "Selection and design" for "Design" in heading and inserted "select and" before "design" in text.

Subsec. (d)(3)(A). Pub. L. 113–121, §1040(a)(1)(C)(i), inserted ", at a minimum," after "complies with".

Subsec. (d)(3)(B)(iii) to (vi). Pub. L. 113–121, §1040(a)(1)(C)(ii), added cls. (iii) and (iv), redesignated former cls. (iv) and (v) as (v) and (vi), respectively, and struck out former cl. (iii) which read as follows: "a description of the land and interests in land to be acquired for the mitigation plan and the basis for a determination that the land and interests are available for acquisition;".

Subsecs. (h), (i). Pub. L. 113–121, §1040(a)(2), added subsecs. (h) and (i).

2007—Subsec. (d)(1). Pub. L. 110–114, §2036(a)(1), (2), substituted "to Congress in any report, and shall not select a project alternative in any report," for "to the Congress" and inserted ", and other habitat types are mitigated to not less than in-kind conditions" after "mitigated in-kind".

Subsec. (d)(3) to (5). Pub. L. 110–114, §2036(a)(3), added pars. (3) to (5).

2000—Subsec. (d). Pub. L. 106–541 inserted subsec. heading, designated existing provisions as par. (1), inserted par. heading, realigned margins, substituted "November 17, 1986" for "the date of enactment of this Act", redesignated former cls. (1) and (2) as (A) and (B), respectively, and added par. (2).

1999—Subsec. (e). Pub. L. 106–53 inserted after second sentence "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."

1992—Subsec. (c). Pub. L. 102–580 inserted ", including lands, easements, rights-of-way, and relocations," before "for implementation and operation".

Applicability

Pub. L. 113–121, title I, §1040(b), June 10, 2014, 128 Stat. 1243, provided that: "The amendments made by subsection (a) [amending this section] shall not apply to a project for which a mitigation plan has been completed as of the date of enactment of this Act [June 10, 2014]."

Concurrent Mitigation

Pub. L. 106–541, title II, §224(b), Dec. 11, 2000, 114 Stat. 2598, provided that:

"(1) Investigation.—

"(A) In general.—The Comptroller General shall conduct an investigation of the effectiveness of the concurrent mitigation requirements of section 906 of the Water Resources Development Act of 1986 (33 U.S.C. 2283). In carrying out the investigation, the Comptroller General shall determine—

"(i) whether or not there are instances in which less than 50 percent of required mitigation is completed before initiation of project construction and the number of such instances; and

"(ii) the extent to which mitigation projects restore natural hydrologic conditions, restore native vegetation, and otherwise support native fish and wildlife species.

"(B) Special rule.—In carrying out subparagraph (A)(ii), the Comptroller General shall—

"(i) establish a panel of independent scientists, comprised of individuals with expertise and experience in applicable scientific disciplines, to assist the Comptroller General; and

"(ii) assess methods used by the Corps of Engineers to monitor and evaluate mitigation projects, and compare Corps of Engineers mitigation project design, construction, monitoring, and evaluation practices with those used in other publicly and privately financed mitigation projects.

"(2) Report.—Not later than 1 year after the date of enactment of this Act [Dec. 11, 2000], the Comptroller General shall transmit to Congress a report on the results of the investigation."

§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 section 2283 of this title, the status of such mitigation, and the results of the consultation under subsection (d)(4)(B) of such section.

(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 section 2283 of this title.

(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 section 2283(d)(4)(B) of this title.

(4) Availability of information

The Secretary shall make information contained in the status report available to the public, including on the Internet.

(Pub. L. 110–114, title II, §2036(b), Nov. 8, 2007, 121 Stat. 1094; Pub. L. 113–121, title I, §1041, June 10, 2014, 128 Stat. 1243.)

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). Pub. L. 113–121 added par. (3) and redesignated former par. (3) as (4).

"Secretary" Defined

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

§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.

(Pub. L. 113–121, title I, §1028, June 10, 2014, 128 Stat. 1230.)

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.

"Secretary" Defined

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

§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).

(Pub. L. 113–121, title I, §1040(c), June 10, 2014, 128 Stat. 1243.)

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.

"Secretary" Defined

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

§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.

(Pub. L. 99–662, title IX, §907, Nov. 17, 1986, 100 Stat. 4188.)

§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.

(Pub. L. 104–303, title II, §230, Oct. 12, 1996, 110 Stat. 3704.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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.

(Pub. L. 104–303, title II, §232, Oct. 12, 1996, 110 Stat. 3704.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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.

(Pub. L. 99–662, title IX, §908, Nov. 17, 1986, 100 Stat. 4188.)

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 [16 U.S.C. 839 et seq.] to be used to protect, mitigate, and enhance fish and wildlife in connection with projects constructed or operated by the Secretary. The Secretary may accept and use funds for such purposes without regard to any limitation established under any other provision of law or rule of law.

(Pub. L. 99–662, title XI, §1146, Nov. 17, 1986, 100 Stat. 4253.)

References in Text

The Pacific Northwest Electric Power Planning and Conservation Act, referred to in text, is Pub. L. 96–501, Dec. 5, 1980, 94 Stat. 2697, which is classified principally to chapter 12H (§839 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 839 of Title 16 and Tables.

§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 section 701–1 of this title, and before authorization for construction of such project, the Chief of Engineers is authorized to undertake continued planning and engineering (other than preparation of plans and specifications) for such project if the Chief of Engineers finds that the project is without substantial controversy and justifies further engineering, economic, and environmental investigations and the Chief of Engineers transmits to the Committee on Public Works and Transportation of the House of Representatives and the Committee on Environment and Public Works of the Senate a statement of such findings. In the one-year period after authorization for construction of such project, the Chief of Engineers is authorized to undertake planning, engineering, and design for such project.

(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.

(Pub. L. 99–662, title IX, §910, Nov. 17, 1986, 100 Stat. 4189.)

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 Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 72 of House Document No. 103–7.

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 Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress.

§2288. Repealed. Pub. L. 113–121, title I, §1004, June 10, 2014, 128 Stat. 1199

Section, Pub. L. 99–662, title IX, §911, Nov. 17, 1986, 100 Stat. 4189, related to review of cost effectiveness of design.

§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.

(Pub. L. 99–662, title IX, §914, Nov. 17, 1986, 100 Stat. 4190.)

§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.

(Pub. L. 114–322, title I, §1184, Dec. 16, 2016, 130 Stat. 1679; Pub. L. 115–270, title I, §1149(b), Oct. 23, 2018, 132 Stat. 3787.)

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). Pub. L. 115–270 struck out "in coastal areas" after "risk reduction".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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 (33 U.S.C. 701s), section 2 of the Flood Control Act of August 28, 1937 (33 U.S.C. 701g), section 14 of the Flood Control Act of 1946 (33 U.S.C. 701r), section 107 of the River and Harbor Act of 1960 (33 U.S.C. 577), section 3 of the Act entitled "An Act authorizing Federal participation in the cost of protecting the shores of publicly owned property", approved August 13, 1946 (33 U.S.C. 426g), and section 111 of the River and Harbor Act of 1968 (33 U.S.C. 426i) in the Trust Territory of the Pacific Islands.

(Pub. L. 99–662, title IX, §915(h), Nov. 17, 1986, 100 Stat. 4191.)

Termination of Trust Territory of the Pacific Islands

For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.

§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.

(Pub. L. 99–662, title IX, §916, Nov. 17, 1986, 100 Stat. 4191; Pub. L. 100–676, §15, Nov. 17, 1988, 102 Stat. 4026.)

Amendments

1988—Subsec. (a). Pub. L. 100–676 substituted "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)" for "include the power to collect a portion of the transfer price from any transaction involving the sale, transfer, or change in beneficial ownership of lands and improvements within the district boundaries".

§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

(Pub. L. 99–662, title IX, §918, Nov. 17, 1986, 100 Stat. 4192.)

References in Text

The Federal Property and Administrative Services Act of 1949, referred to in text, is act June 30, 1949, ch. 288, 63 Stat. 377. Title IX of the Act, which was classified generally to subchapter VI (§541 et seq.) of chapter 10 of former Title 40, Public Buildings, Property, and Works, was repealed and reenacted by Pub. L. 107–217, §§1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, as chapter 11 (§1101 et seq.) of Title 40, Public Buildings, Property, and Works. For disposition of sections of former Title 40 to revised Title 40, see Table preceding section 101 of Title 40. For complete classification of this Act to the Code, see Tables.

Geomatic Data

Pub. L. 115–270, title I, §1118, Oct. 23, 2018, 132 Stat. 3776, provided that:

"(a) In General.—The Secretary [of the Army] shall develop guidance for the acceptance and use of information obtained from a non-Federal interest through geomatic techniques, including remote sensing and land surveying, cartography, geographic information systems, global navigation satellite systems, photogrammetry, or other remote means, in carrying out any authority of the Secretary.

"(b) Considerations.—In carrying out this section, the Secretary shall ensure that use of information described in subsection (a) meets the data quality and operational requirements of the Secretary.

"(c) Savings Clause.—Nothing in this section—

"(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 [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army's civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.

(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.

(Pub. L. 99–662, title IX, §923, Nov. 17, 1986, 100 Stat. 4194.)

References in Text

The National Emergencies Act, referred to in subsec. (a), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, as amended, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.

§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 section 1105(a) of title 31 or is otherwise proposed by the President or considered part of the budget by the Office of Management and Budget, if the project received funds in an Act making appropriations for energy and water development or any other appropriations Act making additional funds available for energy and water development.

(Pub. L. 109–234, title II, §2307, June 15, 2006, 120 Stat. 457.)

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.

(Pub. L. 99–662, title IX, §924, Nov. 17, 1986, 100 Stat. 4194.)

§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 section 556 of this title, in two volumes. Volume I shall consist of a summary and highlights of Corps of Engineers' activities, authorities, and accomplishments. Volume II shall consist of detailed information and field reports on Corps of Engineers' activities. The Secretary shall publish an index with each annual report.

(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.

(Pub. L. 99–662, title IX, §925, Nov. 17, 1986, 100 Stat. 4194.)

Compilation of Laws

Pub. L. 110–114, title II, §2004, Nov. 8, 2007, 121 Stat. 1071, provided that:

"(a) Compilation of Laws Enacted After November 8, 1966.—The Secretary [of the Army] and the Chief of Engineers shall prepare a compilation of the laws of the United States relating to the improvement of rivers and harbors, flood damage reduction, beach and shoreline erosion, hurricane and storm damage reduction, ecosystem and environmental restoration, and other water resources development enacted after November 8, 1966, and before January 1, 2008, and have such compilation printed for the use of the Department of the Army, Congress, and the general public.

"(b) Reprint of Laws Enacted Before November 8, 1966.—The Secretary shall have the volumes containing the laws referred to in subsection (a) enacted before November 8, 1966, reprinted.

"(c) Index.—The Secretary shall include an index in each volume compiled, and each volume reprinted, pursuant to this section.

"(d) Congressional Copies.—Not later than April 1, 2008, the Secretary shall transmit at least 25 copies of each volume compiled, and of each volume reprinted, pursuant to this section to each of the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate.

"(e) Availability.—The Secretary [of the Army] shall ensure that each volume compiled, and each volume reprinted, pursuant to this section are available through electronic means, including on the Internet."

§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.

(Pub. L. 99–662, title IX, §926, Nov. 17, 1986, 100 Stat. 4195.)

§2297. Operation and maintenance on recreation lands

The Secretary shall not require, under section 460d of title 16, and the Federal Water Project Recreation Act [16 U.S.C. 460l–12 et seq.], non-Federal interests to assume operation and maintenance of any recreational facility operated by the Secretary at any water resources project as a condition to the construction of new recreational facilities at such project or any other water resources project.

(Pub. L. 99–662, title IX, §927, Nov. 17, 1986, 100 Stat. 4195.)

References in Text

The Federal Water Project Recreation Act, referred to in text, is Pub. L. 89–72, July 9, 1965, 79 Stat. 213, as amended, which is classified principally to part C (§460l–12 et seq.) of subchapter LXIX of chapter 1 of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 460l–12 of Title 16 and Tables.

§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 (68 Stat. 666; 16 U.S.C. 1001 et seq.), shall describe the usage of other, similar public recreational facilities within the general area of the project, and the anticipated impact of the proposed project on the usage of such existing recreational facilities.

(Pub. L. 99–662, title IX, §928, Nov. 17, 1986, 100 Stat. 4195.)

References in Text

The Watershed Protection and Flood Prevention Act, referred to in text, is act Aug. 4, 1954, ch. 656, 68 Stat. 666, which is classified principally to chapter 18 (§1001 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 16 and Tables.

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 Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress.

§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.

(Pub. L. 99–662, title IX, §935, Nov. 17, 1986, 100 Stat. 4197.)

§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.

(Pub. L. 99–662, title IX, §936, Nov. 17, 1986, 100 Stat. 4197.)

GAO Review of Civil Works Program

Pub. L. 100–676, §44, Nov. 17, 1988, 102 Stat. 4041, provided that the Comptroller General was to conduct a review of the Civil Works Program of the United States Army Corps of Engineers and to transmit the review to Congress with any recommendations the Comptroller General may make.

§§2301, 2302. Omitted

Codification

Section 2301, Pub. L. 99–662, title IX, §937, Nov. 17, 1986, 100 Stat. 4198, which required the Secretary of the Army to transmit to certain committees of Congress annual reports on electricity generated by water resource projects constructed by the Secretary and revenues and costs associated with the projects, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 72 of House Document No. 103–7.

Subsec. (a) of section 2302, Pub. L. 99–662, title IX, §938(a), Nov. 17, 1986, 100 Stat. 4198, which required the Secretary of the Army to transmit an annual report to certain committees of Congress describing contracts awarded, broken down by Engineer District of the Army Corps of Engineers, including the number and dollar amount of contracts set aside for small business concerns, awarded to small business or small disadvantaged business concerns, available for competition by qualified firms of all sizes, and awarded to other than small business or small disadvantaged business concerns, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 69 of House Document No. 103–7.

Subsec. (b) of section 2302, Pub. L. 99–662, title IX, §938(b), Nov. 17, 1986, 100 Stat. 4198, directed the Comptroller General to conduct a study of the contracting procedures of the Secretary of the Army for civil works projects, examining whether potential bidders or offerors, regardless of their size, are allowed to compete fairly in the interest of lowering cost on contracts for construction, and to report findings and recommendations to Congress within two years of Nov. 17, 1986.

§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.

(Pub. L. 99–662, title IX, §943, Nov. 17, 1986, 100 Stat. 4200.)

§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.

(Pub. L. 99–662, title IX, §949, Nov. 17, 1986, 100 Stat. 4201.)

References in Text

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

§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.

(Pub. L. 99–662, title IX, §950, Nov. 17, 1986, 100 Stat. 4201.)

§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.

(Pub. L. 99–662, title IX, §951, Nov. 17, 1986, 100 Stat. 4201.)

References in Text

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

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 Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress.

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 Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

§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 section 2213 of this title shall apply to projects under this section.

(h) Report to Congress

Not later than March 1, 1989, the Secretary shall report to the Congress on activities under this section.

(Pub. L. 99–662, title XI, §1101, Nov. 17, 1986, 100 Stat. 4223.)

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 Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 71 of House Document No. 103–7.

§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.

(Pub. L. 99–662, title XI, §1127, Nov. 17, 1986, 100 Stat. 4245.)

§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 Saint 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 chapter 57 of title 5 while away from their homes or regular places of business and engaged in the actual performance of duties vested in the Board.

(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 Saint 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 (36 Stat. 2448). The five members representing the United States shall include the Secretary of State, one member of the Great Lakes Commodities Marketing Board (as designated by the Board), and three individuals appointed by the President representing commercial, shipping, and environmental interests, respectively.

(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 chapter 57 of title 5 while away from their homes or regular place of business and engaged in the actual performance of duties vested in the advisory group.

(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.

(Pub. L. 99–662, title XI, §1132, Nov. 17, 1986, 100 Stat. 4246.)

References in Text

Section 5311(b) of title 5, referred to in subsec. (b)(5)(A), (B), was repealed by Pub. L. 101–509, title V, §529 [title I, §104(c)(1)], Nov. 5, 1990, 104 Stat. 1427, 1447.

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 Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 193 of House Document No. 103–7.

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 section 1962d–5b of title 42, a non-Federal sponsor for any project carried out under this section may include a nonprofit entity, with the consent of the affected local government.

(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).

(Pub. L. 99–662, title XI, §1135, Nov. 17, 1986, 100 Stat. 4251; Pub. L. 100–676, §41, Nov. 17, 1988, 102 Stat. 4040; Pub. L. 101–640, title III, §304, Nov. 28, 1990, 104 Stat. 4634; Pub. L. 102–580, title II, §202, Oct. 31, 1992, 106 Stat. 4826; Pub. L. 104–303, title II, §204, Oct. 12, 1996, 110 Stat. 3678; Pub. L. 106–53, title V, §506, Aug. 17, 1999, 113 Stat. 338; Pub. L. 106–541, title II, §210(c), Dec. 11, 2000, 114 Stat. 2592; Pub. L. 110–114, title II, §2024, Nov. 8, 2007, 121 Stat. 1079; Pub. L. 113–121, title I, §1030(f), June 10, 2014, 128 Stat. 1232; Pub. L. 115–270, title I, §1157(g), Oct. 23, 2018, 132 Stat. 3794.)

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 Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 72 of House Document No. 103–7.

Section was formerly set out as a note under section 2294 of this title.

Amendments

2018—Subsec. (h). Pub. L. 115–270 substituted "$50,000,000" for "$40,000,000".

2014—Subsec. (d). Pub. L. 113–121 substituted "The non-Federal share may be provided" for "Not more than 80 percent of the non-Federal share may be" and "$10,000,000" for "$5,000,000".

2007—Subsec. (h). Pub. L. 110–114 substituted "$40,000,000" for "$25,000,000".

2000—Subsecs. (g) to (i). Pub. L. 106–541 added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.

1999—Subsec. (c). Pub. L. 106–53 designated existing provisions as par. (1), inserted heading, and added par. (2).

1996—Subsec. (a). Pub. L. 104–303, §204(a), struck out "the operation of" after "to review" and inserted before period at end "and to determine if the operation of such projects has contributed to the degradation of the quality of the environment".

Subsec. (b). Pub. L. 104–303, §204(b), struck out at end "The non-Federal share of the cost of any modifications carried out under this section shall be 25 percent. No modification shall be carried out under this section without specific authorization by Congress if the estimated cost exceeds $5,000,000."

Subsecs. (c), (d). Pub. L. 104–303, §204(c)(2), added subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (e) and (f), respectively.

Subsec. (e). Pub. L. 104–303, §204(c)(1), redesignated subsec. (c) as (e). Former subsec. (e) redesignated (g).

Subsec. (f). Pub. L. 104–303, §204(c)(1), (3), redesignated subsec. (d) as (f) and substituted "programs conducted under subsections (b) and (c)" for "program conducted under subsection (b)".

Subsec. (g). Pub. L. 104–303, §204(c)(1), redesignated subsec. (e) as (g).

Subsec. (h). Pub. L. 104–303, §204(d), added subsec. (h).

1992—Subsec. (b). Pub. L. 102–580, §202(1), inserted at end "No modification shall be carried out under this section without specific authorization by Congress if the estimated cost exceeds $5,000,000."

Subsec. (e). Pub. L. 102–580, §202(2), substituted "$25,000,000" for "$15,000,000".

1990—Subsec. (a). Pub. L. 101–640, §304(a), struck out "before the date of enactment of this Act" after "constructed by the Secretary".

Subsec. (b). Pub. L. 101–640, §304(b), substituted "program" for "demonstration program in the 5-year period beginning on the date of enactment of this Act" and struck out "before the date of enactment of this Act" after "constructed by the Secretary".

Subsec. (d). Pub. L. 101–640, §304(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "Not later than 5 years after the date of enactment of this Act, the Secretary shall transmit to Congress a report on the results of the review conducted under subsection (a) and on the demonstration program conducted under subsection (b). Such report shall contain any recommendations of the Secretary concerning modification and extension of such program."

Subsec. (e). Pub. L. 101–640, §304(d), substituted "$15,000,000 annually to carry out this section" for "$25,000,000 to carry out this section".

1988—Subsec. (b). Pub. L. 100–676, §41(a), substituted "5-year period" for "two-year period".

Subsec. (d). Pub. L. 100–676, §41(b), substituted "5 years" for "two years".

§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; and

(2) for any Indian tribe or tribal organization (as those terms are defined in section 5304 of title 25).

(b) Inflation adjustment

The Secretary shall adjust the dollar amount specified in subsection (a) for inflation for the period beginning on November 17, 1986, and ending on October 23, 2018.

(Pub. L. 99–662, title XI, §1156, Nov. 17, 1986, 100 Stat. 4256; Pub. L. 113–121, title I, §1032, June 10, 2014, 128 Stat. 1233; Pub. L. 114–322, title I, §1119, Dec. 16, 2016, 130 Stat. 1643; Pub. L. 115–270, title I, §§1155(a), 1156, Oct. 23, 2018, 132 Stat. 3793.)

Amendments

2018—Subsec. (a)(2). Pub. L. 115–270, §1155(a), substituted "or tribal organization (as those terms are defined in section 5304 of title 25)." for "(as defined in section 5130 of title 25)."

Subsec. (b). Pub. L. 115–270, §1156, substituted "October 23, 2018" for "June 10, 2014".

2016Pub. L. 114–322, §1119(1), inserted "and Indian tribes" after "Territories" in section catchline.

Subsec. (a). Pub. L. 114–322, §1119(2), inserted dash after "projects" and par. (1) designation before "in American" and added par. (2).

2014Pub. L. 113–121 designated existing provisions as subsec. (a) and inserted heading, inserted "Puerto Rico," before "and the Trust Territory of the Pacific Islands", and added subsec. (b).

Termination of Trust Territory of the Pacific Islands

For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.

§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 Public Law 83–566, as amended [16 U.S.C. 1001 et seq.], which proposes construction of a water impoundment facility, shall include information on the consequences of failure and geologic or design factors which could contribute to the possible failure of such facility.

(Pub. L. 99–662, title XII, §1202, Nov. 17, 1986, 100 Stat. 4263.)

References in Text

Public Law 83–566, as amended, referred to in text, is act Aug. 4, 1954, ch. 656, 68 Stat. 666, known as the Watershed Protection and Flood Prevention Act, which is classified principally to chapter 18 (§1001 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 16 and Tables.

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 Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress.

§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.

(Pub. L. 100–676, §5, Nov. 17, 1988, 102 Stat. 4022.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 100–676, set out as a note under section 2201 of this title.

§2313. Collaborative research and development

(a) In general

For the purpose of improving the state of engineering and construction in the United States and consistent with the civil works mission of the Army Corps of Engineers, the Secretary is authorized to utilize Army Corps of Engineers laboratories and research centers to undertake, on a cost-shared basis, collaborative research and development with non-Federal entities, including State and local government, colleges and universities, and corporations, partnerships, sole proprietorships, and trade associations which are incorporated or established under the laws of any of the several States of the United States or the District of Columbia.

(b) Pre-agreement temporary protection of technology

(1) In general

If the Secretary determines that information developed as a result of research and development activities conducted by the Corps of Engineers is likely to be subject to a cooperative research and development agreement within 2 years of its development and that such information would be a trade secret or commercial or financial information that would be privileged or confidential if the information had been obtained from a non-Federal party participating in a cooperative research and development agreement under section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a), the Secretary may provide appropriate protection against the dissemination of such information, including exemption from subchapter II of chapter 5 of title 5, until the earlier of the date the Secretary enters into such an agreement with respect to such technology or the last day of the 2-year period beginning on the date of such determination.

(2) Treatment

Any technology covered by this section that becomes the subject of a cooperative research and development agreement shall be accorded the protection provided under section 12(c)(7)(B) of such Act (15 U.S.C. 3710a(c)(7)(B)) as if such technology had been developed under a cooperative research and development agreement.

(c) Administrative provisions

In carrying out this section, the Secretary may consider the recommendations of a non-Federal entity in identifying appropriate research or development projects and may enter into a cooperative research and development agreement, as defined in section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a); except that in such agreement, the Secretary may agree to provide not more than 50 percent of the cost of any research or development project selected by the Secretary under this section. Not less than 5 percent of the non-Federal entity's share of the cost of any such project shall be paid in cash.

(d) Applicability of other laws

The research, development, or utilization of any technology pursuant to an agreement under subsection (c), including the terms under which such technology may be licensed and the resulting royalties may be distributed, shall be subject to the provisions of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3701–3714).

(e) Authorization of appropriations

To carry out the purposes of this section, there is authorized to be appropriated to the Secretary of the Army civil works funds $3,000,000 for fiscal year 1989, $4,000,000 for fiscal year 1990, $5,000,000 for fiscal year 1991, and $6,000,000 for each fiscal year thereafter.

(f) Funding from other Federal sources

The Secretary may accept and expend additional funds from other Federal programs, including other Department of Defense programs, to carry out this section.

(Pub. L. 100–676, §7, Nov. 17, 1988, 102 Stat. 4022; Pub. L. 104–303, title II, §214, Oct. 12, 1996, 110 Stat. 3684.)

References in Text

The Stevenson-Wydler Technology Innovation Act of 1980, referred to in subsec. (d), is Pub. L. 96–480, Oct. 21, 1980, 94 Stat. 2311, as amended, which is classified generally to chapter 63 (§3701 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 3701 of Title 15 and Tables.

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

1996—Subsec. (a). Pub. L. 104–303, §214(a)(1), inserted "civil works" before "mission".

Subsecs. (b), (c). Pub. L. 104–303, §214(b)(1), (2), added subsec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 104–303, §214(b)(1), (3), redesignated subsec. (c) as (d) and substituted "subsection (c)" for "subsection (b)". Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 104–303, §214(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Pub. L. 104–303, §214(a)(2), added subsec. (e) and struck out heading and text of former subsec. (e). Text read as follows: "Notwithstanding the third proviso under the heading 'General Investigations' of title I of the Energy and Water Development Appropriations Act, 1989 (102 Stat. 857), an additional $3,000,000 of the funds appropriated under such heading shall be available to the Secretary for obligation to carry out the purposes of this section in fiscal year 1989."

Subsec. (f). Pub. L. 104–303, §214(b)(1), redesignated subsec. (e) as (f).

Magnetic Levitation Technology

Pub. L. 101–640, title IV, §417, Nov. 28, 1990, 104 Stat. 4652, provided that:

"(a) Research and Development.—The Secretary is authorized, in cooperation with the Secretary of Transportation, to conduct research and development activities on magnetic levitation technology or to provide for such research and development.

"(b) Collaboration.—The Secretary is authorized to collaborate with non-Federal entities (including State and local governments, colleges and universities, and corporations, partnerships, sole proprietorships, and trade associations which are incorporated or established under laws of a State or the District of Columbia) in carrying out research and development on magnetic levitation technology.

"(c) Cooperative Research Contracts.—In carrying out this section, the Secretary may enter into contracts or cooperative research and development agreements under section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a), except that the Secretary may fund up to 50 percent of the cost of each collaborative research and development project undertaken.

"(d) Licensing of Research and Development.—The research, development, and use of any technology developed under an agreement entered into pursuant to this section, including the terms under which such technology may be licensed and the resulting royalties may be distributed, shall be subject to the provisions of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3701–3714). In addition, the Secretary may require the non-Federal entity to certify that such research and development will be performed substantially in the United States and that products embodying inventions made under an agreement entered into pursuant to this section or produced through the use of such inventions will be manufactured substantially in the United States.

"(e) Authorization of Appropriations.—For purposes of carrying out this section, there is authorized to be appropriated $1,000,000 for fiscal year 1990 and $4,000,000 for fiscal year 1991. Such funds shall remain available until expended. No funds are authorized to be appropriated under this section for any fiscal year beginning after September 30, 1991."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 100–676, set out as a note under section 2201 of this title.

§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.

(Pub. L. 104–303, title II, §212, Oct. 12, 1996, 110 Stat. 3684.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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.

(Pub. L. 104–303, title II, §229, Oct. 12, 1996, 110 Stat. 3703.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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.

(Pub. L. 100–676, §8, Nov. 17, 1988, 102 Stat. 4023; Pub. L. 106–53, title V, §503(b), Aug. 17, 1999, 113 Stat. 337; Pub. L. 113–121, title III, §3021, June 10, 2014, 128 Stat. 1301.)

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). Pub. L. 113–121 substituted "methods, or materials, including roller compacted concrete, geosynthetic materials, and advanced composites, that the Secretary determines are appropriate to carry out this section." for "materials, or methods which the Secretary determines are previously undemonstrated or are too new to be considered standard practice."

1999—Subsecs. (b) to (d). Pub. L. 106–53 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.

Design-Build Contracting

Pub. L. 106–541, title II, §221, Dec. 11, 2000, 114 Stat. 2596, provided that:

"(a) Pilot Program.—The Secretary [of the Army] may conduct a pilot program consisting of not more than 5 authorized projects to test the design-build method of project delivery on various authorized civil works projects of the Corps of Engineers, including levees, pumping plants, revetments, dikes, dredging, weirs, dams, retaining walls, generation facilities, mattress laying, recreation facilities, and other water resources facilities.

"(b) Design-Build Defined.—In this section, the term 'design-build' means an agreement between the Federal Government and a contractor that provides for both the design and construction of a project by a single contract.

"(c) Report.—Not later than 4 years after the date of enactment of this Act [Dec. 11, 2000], the Secretary shall transmit to Congress a report on the results of the pilot program."

Review of Innovative Dredging Technologies

Pub. L. 106–53, title V, §503(a), Aug. 17, 1999, 113 Stat. 337, provided that:

"(1) In general.—Not later than June 1, 2001, the Secretary shall complete a review of innovative dredging technologies designed to minimize or eliminate contamination of a water column upon removal of contaminated sediments.

"(2) Testing.—

"(A) Selection of technology.—After completion of the review under paragraph (1), the Secretary shall select, from among the technologies reviewed, the technology that the Secretary determines will best increase the effectiveness of removing contaminated sediments and significantly reduce contamination of the water column.

"(B) Agreement.—Not later than December 31, 2001, the Secretary shall enter into an agreement with a public or private entity to test the selected technology in the vicinity of Peoria Lakes, Illinois.

"(3) Authorization of appropriations.—There is authorized to be appropriated to carry out this subsection $2,000,000."

Beneficial Use of Waste Tire Rubber

Pub. L. 106–53, title V, §561, Aug. 17, 1999, 113 Stat. 355, provided that:

"(a) In General.—The Secretary shall, when appropriate, encourage the beneficial use of waste tire rubber (including crumb rubber and baled tire products) recycled from tires.

"(b) Included Beneficial Uses.—Beneficial uses under subsection (a) may include marine pilings, underwater framing, floating docks with built-in flotation, utility poles, and other uses associated with transportation and infrastructure projects receiving Federal funds.

"(c) Use of Waste Tire Rubber.—The Secretary shall encourage the use, when appropriate, of waste tire rubber (including crumb rubber) in projects described in subsection (b)."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 100–676, set out as a note under section 2201 of this title.

§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.

(Pub. L. 100–676, §9, Nov. 17, 1988, 102 Stat. 4024; Pub. L. 101–640, title III, §318(c), Nov. 28, 1990, 104 Stat. 4642.)

Codification

Section was formerly set out as a note under section 2314 of this title.

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

1990Pub. L. 101–640, §318(c)(1), struck out "demonstration" after "Technical assistance" in section catchline.

Subsec. (a). Pub. L. 101–640, §318(c)(2), struck out "to undertake a demonstration program for a 2-year period, which shall begin within 6 months after the date of enactment of this Act," after "The Secretary is authorized".

Subsecs. (d), (e). Pub. L. 101–640, §318(c)(3), (4), redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: "Within 6 months after the end of the demonstration program authorized by this section, the Secretary shall submit to Congress a report on the results of such demonstration program."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 100–676, set out as a note under section 2201 of this title.

§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.

(Pub. L. 113–121, title I, §1034, June 10, 2014, 128 Stat. 1234.)

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.

"Secretary" Defined

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

§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.

(Pub. L. 100–676, §10, Nov. 17, 1988, 102 Stat. 4024.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 100–676, set out as a note under section 2201 of this title.

§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.

(Pub. L. 113–121, title I, §1012(a), June 10, 2014, 128 Stat. 1218.)

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.

"Secretary" Defined

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

§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 section 2315 of this title

(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.

(Pub. L. 115–270, title I, §1120, Oct. 23, 2018, 132 Stat. 3777.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 102 of Pub. L. 115–270, set out as a note under section 2201 of this title.

§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.

(Pub. L. 101–640, title III, §306, Nov. 28, 1990, 104 Stat. 4635.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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 [33 U.S.C. 1251 et seq.] to restore and maintain the physical, chemical, and biological integrity of the Nation's waters, and

(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 (33 U.S.C. 1344) or section 403 of this title.

(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.

(Pub. L. 101–640, title III, §307, Nov. 28, 1990, 104 Stat. 4635.)

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 Pub. L. 92–500, §2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§1251 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of this title and Tables.

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.

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 Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

Wetlands Enhancement Opportunities

Pub. L. 101–640, title IV, §409, Nov. 28, 1990, 104 Stat. 4648, provided that: "Not later than January 20, 1992, the Secretary shall transmit to Congress a list which specifically identifies opportunities of enhancing wetlands in connection with construction and operation of water resource projects."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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 section 6305 of title 31 with nonprofit organizations with expertise in wetlands restoration to carry out such design and construction on behalf of the Secretary.

(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.

(Pub. L. 110–114, title II, §2015, Nov. 8, 2007, 121 Stat. 1076.)

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.

"Secretary" Defined

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

§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 section 2283 of this title; or

(B) shall be construed as to limit mitigation alternatives or require the use of mitigation banks or in-lieu fee programs.

(Pub. L. 110–114, title II, §2036(c), Nov. 8, 2007, 121 Stat. 1094; Pub. L. 114–322, title I, §1163, Dec. 16, 2016, 130 Stat. 1669.)

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

2016Pub. L. 114–322 amended section generally. Prior to amendment, section related to use of the mitigation bank for certain water resources projects that involved wetlands mitigation.

"Secretary" Defined

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

§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 [42 U.S.C. 4001 et seq.].

(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.

(Pub. L. 101–640, title III, §308, Nov. 28, 1990, 104 Stat. 4638; Pub. L. 106–53, title II, §219(a), Aug. 17, 1999, 113 Stat. 294.)

References in Text

The National Flood Insurance Act of 1968, referred to in subsec. (d), is title XIII of Pub. L. 90–448, Aug. 1, 1968, 82 Stat. 572, as amended, which is classified principally to chapter 50 (§4001 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4001 of Title 42 and Tables.

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). Pub. L. 106–53, §219(a)(1), inserted "Exclusion of elements from" before "benefit-cost" in heading.

Subsecs. (b) to (d). Pub. L. 106–53, §219(a)(2), (3), added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively. Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 106–53, §219(a)(2), (4), redesignated subsec. (d) as (e) and substituted "subsection (c)" for "subsection (b)". Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 106–53, §219(a)(2), redesignated subsec. (e) as (f).

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 Pub. L. 109–295, set out as a note under section 313 of Title 6, Domestic Security.

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 section 315(a)(1) of Title 6, Domestic Security.

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 sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Reevaluation of Flood Control Projects

Pub. L. 106–53, title II, §219(b), Aug. 17, 1999, 113 Stat. 295, provided that: "At the request of a non-Federal interest for a flood control project, the Secretary shall conduct a reevaluation of a project authorized before the date of enactment of this Act [Aug. 17, 1999] to consider nonstructural alternatives in light of the amendments made by subsection (a) [amending this section]."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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.

(Pub. L. 101–640, title III, §310, Nov. 28, 1990, 104 Stat. 4639; Pub. L. 104–303, title II, §233, Oct. 12, 1996, 110 Stat. 3704.)

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). Pub. L. 104–303, §233(1), struck out heading and text of subsec. (a). Text read as follows: "Not later than 2 years after November 28, 1990, the Secretary shall establish for major reservoirs under the jurisdiction of the Corps of Engineers a technical advisory committee to provide to the Secretary and Corps of Engineers recommendations on reservoir monitoring and options for reservoir research. The Secretary shall determine the membership of the committee, except that the Secretary may not appoint more than 6 members and shall ensure a predominance of members with appropriate academic, technical, or scientific qualifications. Members shall serve without pay, and the Secretary shall provide any necessary facilities, staff, and other support services in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 1 et seq.)."

Subsec. (b). Pub. L. 104–303, §233(2), struck out "(b) Public Participation.—" before "The Secretary shall ensure", and substituted "section" for "subsection" in two places.

Dam Optimization

Pub. L. 113–121, title I, §1046(a), June 10, 2014, 128 Stat. 1251, provided that:

"(1) Definition of project.—In this subsection, the term 'project' means a water resources development project that is operated and maintained by the Secretary [of the Army].

"(2) Reports.—

"(A) Assessment of water supply in arid regions.—

"(i) In general.—The Secretary shall conduct an assessment of the management practices, priorities, and authorized purposes at Corps of Engineers reservoirs in arid regions to determine the effects of such practices, priorities, and purposes on water supply during periods of drought.

"(ii) Inclusions.—The assessment under clause (i) shall identify actions that can be carried out within the scope of existing authorities of the Secretary to increase project flexibility for the purpose of mitigating drought impacts.

"(iii) Report.—Not later than 1 year after the date of enactment of this Act [June 10, 2014], the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report on the results of the assessment.

"(B) Updated report.—

"(i) In general.—Not later than 2 years after the date of enactment of this Act, the Secretary shall update and make publicly available the report entitled 'Authorized and Operating Purposes of Corps of Engineers Reservoirs' and dated July 1992, which was produced pursuant to section 311 of the Water Resources Development Act of 1990 [Pub. L. 101–640] (104 Stat. 4639).

"(ii) Inclusions.—The updated report described in clause (i) shall—

"(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 (43 U.S.C. 390b).

"(3) General accountability office report to congress.—The Comptroller General shall—

"(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) Interagency and cooperative agreements.—The Secretary may enter into interagency agreements with other Federal agencies and cooperative agreements with non-Federal entities to carry out this subsection and reviews of project operations or activities resulting from those reviews.

"(5) Funding.—

"(A) In general.—The Secretary may use to carry out this subsection, including any reviews of project operations identified in the plan developed under paragraph (2)(B)(ii)(I)(dd), amounts made available to the Secretary.

"(B) Funding from other sources.—The Secretary may accept and expend amounts from non-Federal entities and other Federal agencies to carry out this subsection and reviews of project operations or activities resulting from those reviews.

"(6) Effect of subsection.—

"(A) In general.—Nothing in this subsection changes the authorized purpose of any Corps of Engineers dam or reservoir.

"(B) Administration.—The Secretary may carry out any recommendations and activities under this subsection pursuant to existing law."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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.

(Pub. L. 101–640, title III, §313, Nov. 28, 1990, 104 Stat. 4640.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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.

(Pub. L. 101–640, title III, §314, Nov. 28, 1990, 104 Stat. 4641; Pub. L. 115–270, title I, §1151(a), Oct. 23, 2018, 132 Stat. 3787.)

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

2018Pub. L. 115–270 inserted "navigation and" before "hydroelectric facilities" in section catchline, designated first sentence as subsec. (a), inserted heading, and inserted "navigation or" before "hydroelectric", designated second sentence as subsec. (b) and inserted heading, and added subsec. (c).

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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 section 839d–1 of title 16.

(e) Effect on other authority

This section shall not affect the authority of the Secretary and the Administrator of the Bonneville Power Administration under section 839d–1 of title 16.

(Pub. L. 104–303, title II, §216, Oct. 12, 1996, 110 Stat. 3694; Pub. L. 106–541, title II, §212, Dec. 11, 2000, 114 Stat. 2593.)

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). Pub. L. 106–541, §212(1), inserted introductory provisions and struck out former introductory provisions which read as follows: "In carrying out the 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 take, to the extent funds are made available in appropriations Acts, such actions as are necessary to increase the efficiency of energy production or the capacity of the facility, or both, if, after consulting with the heads of other appropriate Federal and State agencies, the Secretary determines that the increase—".

Subsec. (a)(1). Pub. L. 106–541, §212(1), substituted "are" for "is" before "economically justified".

Subsec. (b). Pub. L. 106–541, §212(2), substituted "any proposed uprating" for "the proposed uprating" in first sentence.

Subsecs. (c) to (e). Pub. L. 106–541, §212(3), (4), added subsecs. (c) and (d) and redesignated former subsec. (c) as (e).

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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 civil works projects, including locks and dams, shall be given priority;

(2) Corps of Engineers approval of non-Federal hydroelectric power at Corps of Engineers civil works projects, including permitting required under section 408 of this title, shall be completed by the Corps of Engineers in a timely and consistent manner; and

(3) approval of hydropower at Corps of Engineers civil works 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) 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 civil works projects;

(2) a list of all new hydroelectric power activities by non-Federal entities approved at Corps of Engineers civil works 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 civil works projects;

(4) a description of any benefits or impacts to the environment, recreation, or other uses associated with Corps of Engineers civil works 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 civil works projects.

(Pub. L. 113–121, title I, §1008, June 10, 2014, 128 Stat. 1215.)

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.

"Secretary" Defined

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

§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.

(Pub. L. 101–640, title III, §317, Nov. 28, 1990, 104 Stat. 4641.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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

(Pub. L. 101–640, title III, §318, Nov. 28, 1990, 104 Stat. 4641.)

Codification

Section is comprised of section 318 of Pub. L. 101–640. Subsec. (c) of section 318 of Pub. L. 101–640 amended section 2314a of this title.

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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.

(Pub. L. 104–303, title II, §234, Oct. 12, 1996, 110 Stat. 3704; Pub. L. 106–541, title II, §207, Dec. 11, 2000, 114 Stat. 2590; Pub. L. 110–114, title II, §2030, Nov. 8, 2007, 121 Stat. 1081; Pub. L. 113–121, title I, §1029, June 10, 2014, 128 Stat. 1230.)

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). Pub. L. 113–121, §1029(1), substituted "Federal departments or agencies, nongovernmental organizations," for "other Federal agencies,".

Subsec. (b). Pub. L. 113–121, §1029(2), inserted "or foreign governments" after "organizations".

Subsec. (c). Pub. L. 113–121, §1029(3), inserted "and restoration" after "protection".

Subsec. (d). Pub. L. 113–121, §1029(4), designated first and second sentences as pars. (1) and (2), respectively, inserted headings, and substituted "Federal departments or agencies, nongovernmental organizations," for "other Federal agencies," in par. (2).

2007—Subsec. (a). Pub. L. 110–114, §2030(1), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: "The Secretary may engage in activities in support of other Federal agencies or international organizations to address problems of national significance to the United States."

Subsec. (b). Pub. L. 110–114, §2030(2), substituted "Department of State" for "Secretary of State".

Subsec. (d). Pub. L. 110–114, §2030(3), substituted "$1,000,000 for fiscal year 2008" for "$250,000 for fiscal year 2001" and ", international organizations, or foreign governments" for "or international organizations".

2000—Subsec. (d). Pub. L. 106–541 substituted "There is authorized to be appropriated to carry out this section $250,000 for fiscal year 2001 and each fiscal year thereafter." for "There is authorized to be appropriated $1,000,000 to carry out this section." and inserted "out" after "carry" in second sentence.

National Recreation Reservation Service

Pub. L. 106–541, title II, §206, Dec. 11, 2000, 114 Stat. 2590, provided that: "Notwithstanding section 611 of the Treasury and General Government Appropriations Act, 1999 (112 Stat. 2681–515), the Secretary [of the Army] may—

"(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 Pub. L. 104–303, set out as a note under section 2201 of this title.

§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 2,000,000 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 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.

(Pub. L. 101–640, title III, §322, Nov. 28, 1990, 104 Stat. 4643.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 101–640, set out as a note under section 2201 of this title.

§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).

(Pub. L. 102–580, title II, §203, Oct. 31, 1992, 106 Stat. 4826; Pub. L. 104–303, title II, §236(a), Oct. 12, 1996, 110 Stat. 3705.)

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). Pub. L. 104–303 substituted "(8862)" for "(8662)".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 3 of Pub. L. 102–580, set out as a note under section 2201 of this title.

§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.

(Pub. L. 113–121, title I, §1024, June 10, 2014, 128 Stat. 1229; Pub. L. 114–322, title I, §1153, Dec. 16, 2016, 130 Stat. 1663.)

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). Pub. L. 114–322, §1153(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: "Subject to subsection (b), the Secretary is authorized to accept and use materials and services contributed by a non-Federal public entity, a nonprofit entity, or a private entity for the purpose of repairing, restoring, or replacing a water resources development project that has been damaged or destroyed as a result of an emergency if the Secretary determines that the acceptance and use of such materials and services is in the public interest."

Subsec. (c). Pub. L. 114–322, §1153(3), added subsec. (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 114–322, §1153(2), (4), redesignated subsec. (c) as (d) and, in introductory provisions, substituted "Not later than February 1 of each year after the first fiscal year in which materials, services, or funds are accepted under this section," for "Not later than 60 days after initiating an activity under this section," and "an annual report" for "a report".

"Secretary" Defined

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

§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 section 2213 of this title.

(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

In developing and carrying out a Federal water resources project involving the disposal of dredged material, the Secretary may select, with the consent of the non-Federal interest, 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 flood and storm damage and flood 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 section 2213(d)(1) of this title.

(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.

(Pub. L. 102–580, title II, §204, Oct. 31, 1992, 106 Stat. 4826; Pub. L. 104–303, title II, §207, Oct. 12, 1996, 110 Stat. 3680; Pub. L. 106–53, title II, §209, Aug. 17, 1999, 113 Stat. 287; Pub. L. 110–114, title II, §2037(a), Nov. 8, 2007, 121 Stat. 1094; Pub. L. 113–121, title I, §§1030(d)(1), 1038, June 10, 2014, 128 Stat. 1232, 1236; Pub. L. 114–322, title I, §1122(i), Dec. 16, 2016, 130 Stat. 1647; Pub. L. 115–270, title I, §§1150, 1157(d), Oct. 23, 2018, 132 Stat. 3787, 3794.)

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

2018—Subsec. (a)(1)(A). Pub. L. 115–270, §1150, inserted "including a project authorized for flood control," after "an authorized Federal water resources project,".

Subsec. (g). Pub. L. 115–270, §1157(d), substituted "$62,500,000" for "$50,000,000".

2016—Subsec. (a)(1). Pub. L. 114–322, §1122(i)(1), designated existing provisions as subpar. (A), inserted heading, and added subpar. (B).

Subsec. (d)(3), (4). Pub. L. 114–322, §1122(i)(2), added pars. (3) and (4).

2014—Subsec. (a)(1). Pub. L. 113–121, §1038(1)(A), inserted "or used in" after "obtained through".

Subsec. (a)(3)(C). Pub. L. 113–121, §1038(1)(B), inserted "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" before period at end.

Subsec. (a)(4). Pub. L. 113–121, §1038(1)(C), added par. (4).

Subsec. (c)(1)(C). Pub. L. 113–121, §1030(d)(1)(A), substituted "$10,000,000" for "$5,000,000".

Subsec. (d). Pub. L. 113–121, §1038(2)(A), substituted "Selection of dredged material disposal method for purposes related to environmental restoration or storm damage and flood reduction" for "Selection of dredged material disposal method for environmental purposes" in heading.

Subsec. (d)(1). Pub. L. 113–121, §1038(2)(B), substituted "in relation to—" for "in relation to the environmental benefits, including the benefits to the aquatic environment to be derived from the creation of wetlands and control of shoreline erosion." and added subpars. (A) and (B).

Subsec. (e)(1). Pub. L. 113–121, §1038(3), added par. (1) and struck out former par. (1) which read as follows: "cooperate with any State in the preparation of a comprehensive State or regional sediment management plan within the boundaries of the State;".

Subsec. (g). Pub. L. 113–121, §1030(d)(1)(B), substituted "$50,000,000" for "$30,000,000".

2007Pub. L. 110–114 amended section generally. Prior to amendment, section related to beneficial uses of dredged material.

1999—Subsec. (c). Pub. L. 106–53, §209(1), in introductory provisions, substituted "binding agreement with the Secretary" for "cooperative agreement in accordance with the requirements of section 1962d–5b of title 42".

Subsec. (g). Pub. L. 106–53, §209(2), added subsec. (g).

1996—Subsecs. (e), (f). Pub. L. 104–303 added subsec. (e) and redesignated former subsec. (e) as (f).

Applicability

Pub. L. 110–114, title II, §2037(c), as added by Pub. L. 113–121, title I, §1030(d)(2), June 10, 2014, 128 Stat. 1232, provided that: "The amendment made by subsection (a) [amending this section] shall not apply to any project authorized under this Act [see Tables for classification] if a report of the Chief of Engineers for the project was completed prior to the date of enactment of this Act [Nov. 8, 2007]."

Dredge Pilot Program

Pub. L. 115–270, title I, §1111, Oct. 23, 2018, 132 Stat. 3774, provided that:

"(a) In General.—The Secretary [of the Army] is authorized to carry out a pilot program to award contracts with a duration of up to 5 years for the operation and maintenance of harbors and inland harbors referred to in section 210(a)(2) of the Water Resources Development Act of 1986 (33 U.S.C. 2238(a)(2)).

"(b) Scope.—In carrying out the pilot program under subsection (a), the Secretary may award a contract described in such subsection, which may address one or more harbors or inland harbors in a geographical region, if the Secretary determines that the contract provides cost savings compared to the awarding of such work on an annual basis or on a project-by-project basis.

"(c) Report to Congress.—Not later than 1 year after the date on which the first contract is awarded pursuant to the pilot program carried out under subsection (a), the Secretary shall submit to Congress a report evaluating, with respect to the pilot program and any contracts awarded under the pilot program—

"(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) Sunset.—The authority of the Secretary to enter into contracts pursuant to the pilot program carried out under subsection (a), shall expire on the date that is 10 years after the date of enactment of this Act [Oct. 23, 2018]."

Beneficial Use of Dredged Sediment

Pub. L. 115–270, title I, §1148, Oct. 23, 2018, 132 Stat. 3787, provided that:

"(a) In General.—In carrying out a project for the beneficial reuse of sediment to reduce storm damage to property under section 204 of the Water Resources Development Act of 1992 (33 U.S.C. 2326) that involves only a single application of sediment, the Secretary [of the Army] may grant a temporary easement necessary to facilitate the placement of sediment, if the Secretary determines that granting a temporary easement is in the interest of the United States.

"(b) Limitation.—If the Secretary grants a temporary easement under subsection (a) with respect to a project, that project shall no longer be eligible for future placement of sediment under section 204 of the Water Resources Development Act of 1992 (33 U.S.C. 2326)."

Beneficial Use of Dredged Material

Pub. L. 114–322, title I, §1122(a)–(h), Dec. 16, 2016, 130 Stat. 1645, 1646, as amended by Pub. L. 115–270, title I, §1130, Oct. 23, 2018, 132 Stat. 3780, provided that:

"(a) In General.—Not later than 90 days after the date of enactment of this Act [Dec. 16, 2016], the Secretary [of the Army] shall establish a pilot program to carry out projects for the beneficial use of dredged material, including projects for the purposes of—

"(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; and

"(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.

"(b) Project Selection.—In carrying out the pilot program, the Secretary shall—

"(1) identify for inclusion in the pilot program and carry out 20 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) Regional Beneficial Use Teams.—

"(1) In general.—In carrying out the pilot program, the Secretary shall establish regional beneficial use teams to identify and assist in the implementation of projects under the pilot program.

"(2) Composition.—

"(A) Leadership.—For each regional beneficial use team established under paragraph (1), the Secretary shall appoint the Commander of the relevant division of the Corps of Engineers to serve as the head of the team.

"(B) Membership.—The membership of each regional beneficial use team shall include—

"(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) Considerations.—The Secretary shall carry out the pilot program in a manner that—

"(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) Cost Sharing.—

"(1) In general.—Projects carried out under this section shall be subject to the cost-sharing requirements applicable to projects carried out under section 204 of the Water Resources Development Act of 1992 (33 U.S.C. 2326).

"(2) Additional costs.—Notwithstanding paragraph (1), if the cost of transporting and depositing dredged material for a project carried out under this section exceeds the cost of carrying out those activities pursuant to any other water resources project in accordance, if applicable, with the Federal standard (as defined in section 335.7 of title 33, Code of Federal Regulations), the Secretary may not require the non-Federal interest to bear the additional cost of such activities.

"(f) Report.—Not later than 2 years after the date of enactment of this Act [Dec. 16, 2016], and annually thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that includes—

"(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) Termination.—The pilot program shall terminate after completion of the 20 projects carried out pursuant to subsection (b)(1).

"(h) Exemption From Other Standards.—The projects carried out under this section shall be carried out notwithstanding the definition of the term 'Federal standard' in section 335.7 of title 33, Code of Federal Regulations."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 3 of Pub. L. 102–580, set out as a note under section 2201 of this title.

§2326a. Dredged material disposal facility partnerships

(a) Additional capacity

(1) Provided by Secretary

At the request of a non-Federal interest with respect to a project, the Secretary may provide additional capacity at a dredged material disposal facility constructed by the Secretary beyond the capacity that would be required for project purposes if the non-Federal interest agrees to pay, during the period of construction, all costs associated with the construction of the additional capacity.

(2) Cost recovery authority

The non-Federal interest may recover the costs assigned to the additional capacity 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.

(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 section 1341(c) of this title but subject to advance appropriations, any monies received through collection of fees under this subsection shall be available to the Secretary, and shall be used by the Secretary, for the operation and maintenance of the disposal facility from which the fees were collected.

(c) Dredged material facility

(1) In general

The Secretary may enter into a partnership agreement under section 1962d–5b of title 42 with one or more non-Federal interests with respect to a water resources project, or group of water resources projects within a geographic region, if appropriate, for the acquisition, design, construction, management, or operation of a dredged material processing, treatment, contaminant reduction, or disposal facility (including any facility used to demonstrate potential beneficial uses of dredged material, which may include effective sediment contaminant reduction technologies) using funds provided in whole or in part by the Federal Government.

(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 section 1962d–5b of title 42.

(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 section 2213 of this title and section 2326 of this title.

(E) Budget Act compliance

Any spending authority (as defined in section 651(c)(2) of title 2) authorized by this section shall be effective only to such extent and in such amounts as are provided in appropriation Acts.

(Pub. L. 104–303, title II, §217, Oct. 12, 1996, 110 Stat. 3694; Pub. L. 110–114, title II, §2005, Nov. 8, 2007, 121 Stat. 1071.)

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 Pub. L. 93–344, July 12, 1974, 88 Stat. 297, as amended. For complete classification of this Act to the Code, see Short Title note set out under section 621 of Title 2, The Congress, and Tables.

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

2007—Subsec. (c). Pub. L. 110–114, §2005(2), added subsec. (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 110–114, §2005(1), redesignated subsec. (c) as (d).

Subsec. (d)(1). Pub. L. 110–114, §2005(3), inserted "and maintenance" after "operation" and "processing, treatment, contaminant reduction, or" after "dredged material".

Subsec. (d)(2)(A). Pub. L. 110–114, §2005(3), inserted "and maintenance" after "operation" and "processing, treatment, contaminant reduction, or" after "of a dredged material".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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) 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.

(Pub. L. 104–303, title V, §516, Oct. 12, 1996, 110 Stat. 3763; Pub. L. 106–541, title V, §505, Dec. 11, 2000, 114 Stat. 2645; Pub. L. 110–114, title V, §5013, Nov. 8, 2007, 121 Stat. 1195.)

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

2007—Subsec. (g)(2). Pub. L. 110–114 substituted "through 2012" for "through 2006".

2000—Subsec. (e)(3). Pub. L. 106–541, §505(1), added par. (3).

Subsec. (g). Pub. L. 106–541, §505(2), designated existing provisions as par. (1), inserted heading, realigned margins, and added par. (2).

Dredged Material Management Plans

Pub. L. 115–270, title I, §1116, Oct. 23, 2018, 132 Stat. 3776, provided that:

"(a) In General.—For purposes of dredged material management plans initiated after the date of enactment of this Act [Oct. 23, 2018], the Secretary [of the Army] shall expedite the dredged material management plan process in order that such plans make maximum use of existing information, studies, and innovative dredged material management practices, and avoid any redundant information collection and studies.

"(b) Report.—Not later than 60 days after the date of enactment of this Act, the Secretary shall submit to Congress a report on how the Corps of Engineers intends to meet the requirements of subsection (a)."

New York-New Jersey Harbor, New York and New Jersey

Pub. L. 106–53, title V, §540, Aug. 17, 1999, 113 Stat. 350, provided that:

"(a) In General.—The Secretary shall conduct a study to analyze the economic and environmental benefits and costs of potential sediment management and contaminant reduction measures.

"(b) Cooperative Agreements.—In conducting the study, the Secretary may enter into cooperative agreements with non-Federal interests to investigate, develop, and support measures for sediment management and reduction of sources of contaminant that affect navigation in the Port of New York-New Jersey and the environmental conditions of the New York-New Jersey Harbor estuary."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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.

(Pub. L. 106–541, title II, §215, Dec. 11, 2000, 114 Stat. 2594; Pub. L. 114–322, title I, §1115(a), Dec. 16, 2016, 130 Stat. 1638; Pub. L. 115–270, title I, §1146, Oct. 23, 2018, 132 Stat. 3786.)

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). Pub. L. 115–270, §1146(1), substituted "October 23, 2018" for "December 16, 2016" and "shall, using available funds, accept" for "shall establish, using available funds, a pilot program to accept".

Subsec. (b)(4). Pub. L. 115–270, §1146(2), struck out par. (4) which read as follows: "limit the number of dams for which services are accepted to 10."

Subsec. (f). Pub. L. 115–270, §1146(3), added subsec. (f) and struck out former subsec. (f). Prior to amendment, text read as follows: "Upon completion of services at the 10 dams allowed under subsection (b)(4), the Secretary shall make publicly available and 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 documenting the results of the services."

2016Pub. L. 114–322 amended section generally. Prior to amendment, section related to a program for direct marketing of dredged material and a pilot program for dredged material recycling.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.

§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.

(Pub. L. 114–322, title I, §1106, Dec. 16, 2016, 130 Stat. 1634.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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.

(Pub. L. 114–322, title I, §1113, Dec. 16, 2016, 130 Stat. 1637.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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;

(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.

(Pub. L. 114–322, title I, §1133, Dec. 16, 2016, 130 Stat. 1654.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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.

(Pub. L. 102–580, title II, §205, Oct. 31, 1992, 106 Stat. 4827; Pub. L. 113–121, title II, §2006(a)(4), June 10, 2014, 128 Stat. 1268.)

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). Pub. L. 113–121 substituted "$20,000,000" for "$8,000,000".

§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 section 460d–3(b)(4) of title 16, shall use any retained amount for operation, maintenance, and management activities at the recreation site at which the fee is collected.

(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.

(Pub. L. 102–580, title II, §225, Oct. 31, 1992, 106 Stat. 4838; Pub. L. 104–303, title II, §236(b), Oct. 12, 1996, 110 Stat. 3705; Pub. L. 114–322, title I, §1155, Dec. 16, 2016, 130 Stat. 1663.)

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). Pub. L. 114–322 added subsec. (c) and redesignated former subsec. (c) as (d).

1996—Subsec. (c). Pub. L. 104–303 substituted "(8862)" for "(8662)".

Recreation Partnership Initiative

Pub. L. 104–303, title V, §519, Oct. 12, 1996, 110 Stat. 3765, as amended by Pub. L. 106–53, title III, §350(a), Aug. 17, 1999, 113 Stat. 310, provided that:

"(a) In General.—The Secretary shall promote Federal, non-Federal, and private sector cooperation in creating public recreation opportunities and developing the necessary supporting infrastructure at water resources projects of the Corps of Engineers.

"(b) Infrastructure Improvements.—

"(1) Recreation infrastructure improvements.—In determining the feasibility of the public-private cooperative under subsection (a), the Secretary shall provide such infrastructure improvements as are necessary to support a potential private recreational development at the Raystown Lake Project, Pennsylvania, generally in accordance with the Master Plan Update (1994) for the project.

"(2) Agreement.—The Secretary shall enter into an agreement with an appropriate non-Federal public entity to ensure that the infrastructure improvements constructed by the Secretary on non-project lands pursuant to paragraph (1) are transferred to and operated and maintained by the non-Federal public entity.

"(3) Engineering and design services.—The Secretary may perform engineering and design services for project infrastructure expected to be associated with the development of the site at Raystown Lake, Hesston, Pennsylvania.

"(4) Authorization of appropriations.—There is authorized to be appropriated to carry out this subsection $3,000,000.

"(c) Report.—Not later than December 31, 1998, the Secretary shall transmit to Congress a report on the results of the cooperative efforts carried out under this section, including the improvements required by subsection (b)."

"Secretary" Defined

Secretary means the Secretary of the Army, see section 3 of Pub. L. 102–580, set out as a note under section 2201 of this title.

§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.

(Pub. L. 113–121, title I, §1047, June 10, 2014, 128 Stat. 1255.)

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 Pub. L. 113–121. Subsecs. (d) and (e) of section 1047 of Pub. L. 113–121 amended sections 569c and 2339 of this title, respectively.

"Secretary" Defined

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

§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.

(Pub. L. 102–580, title IV, §401, Oct. 31, 1992, 106 Stat. 4862; Pub. L. 114–322, title I, §1138, Dec. 16, 2016, 130 Stat. 1657.)

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). Pub. L. 114–322 amended subsec. (a) generally. Prior to amendment, subsec. (a) authorized the Secretary to engage in activities to inform the United States maritime industry and port authorities of technological innovations abroad that could significantly improve waterborne transportation in the United States, both inland and deep draft.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 3 of Pub. L. 102–580, set out as a note under section 2201 of this title.

§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 section 2902 of this title); and

(B) is cost-effective.

(2) Dam removal

A project under this section may include removal of a dam.

(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 section 1962d–5b of title 42, for any project carried out under this section, a non-Federal interest may include a nonprofit entity, with the consent of the affected local government.

(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 section 2289a of this title, if the Secretary determines that inclusion of such features is consistent with the requirements of subsection (a).

(f) Funding

There is authorized to be appropriated to carry out this section $62,500,000 for each fiscal year.

(Pub. L. 104–303, title II, §206, Oct. 12, 1996, 110 Stat. 3679; Pub. L. 106–53, title II, §210, Aug. 17, 1999, 113 Stat. 287; Pub. L. 110–114, title II, §2020, Nov. 8, 2007, 121 Stat. 1078; Pub. L. 113–121, title I, §1030(g), June 10, 2014, 128 Stat. 1232; Pub. L. 115–270, title I, §§1149(a), 1157(f), Oct. 23, 2018, 132 Stat. 3787, 3794.)

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

2018—Subsec. (e). Pub. L. 115–270, §1149(a)(2), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 115–270, §§1149(a)(1), 1157(f), redesignated subsec. (e) as (f) and substituted "$62,500,000" for "$50,000,000".

2014—Subsec. (d). Pub. L. 113–121 substituted "$10,000,000" for "$5,000,000".

2007—Subsec. (a). Pub. L. 110–114, §2020(1), added subsec. (a) and struck out former subsec. (a), which read as follows:

"(a) General authority.—The Secretary may carry out an aquatic ecosystem restoration and protection project if the Secretary determines that the project—

"(1) will improve the quality of the environment and is in the public interest; and

"(2) is cost-effective."

Subsec. (e). Pub. L. 110–114, §2020(2), substituted "$50,000,000" for "$25,000,000".

1999—Subsec. (b). Pub. L. 106–53, §210(1), designated existing provisions as par. (1), inserted heading, and added par. (2).

Subsec. (c). Pub. L. 106–53, §210(2), designated existing provisions as par. (1), inserted heading, and added par. (2).

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 104–303, set out as a note under section 2201 of this title.

§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).

(Pub. L. 110–114, title II, §2039, Nov. 8, 2007, 121 Stat. 1100; Pub. L. 114–322, title I, §1161, Dec. 16, 2016, 130 Stat. 1668.)

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). Pub. L. 114–322 added subsecs. (d) to (f).

"Secretary" Defined

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

§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 (16 U.S.C. 1531 et seq.) or a similar State law.

(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.

(Pub. L. 114–322, title I, §1168, Dec. 16, 2016, 130 Stat. 1671.)

References in Text

The Endangered Species Act of 1973, referred to in subsec. (a), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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.

(Pub. L. 106–53, title II, §206, Aug. 17, 1999, 113 Stat. 286.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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.

(Pub. L. 114–322, title I, §1146, Dec. 16, 2016, 130 Stat. 1659.)

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. Flood mitigation and riverine restoration program

(a) In general

The Secretary may undertake a program for the purpose of conducting projects to reduce flood hazards and restore the natural functions and values of rivers throughout the United States.

(b) Studies and projects

(1) Authority

In carrying out the program, the Secretary may conduct studies to identify appropriate flood damage reduction, conservation, and restoration measures and 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 damages.

(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 damage reduction or riverine and wetland restoration studies with projects that conserve, restore, and manage hydrologic and hydraulic regimes and restore the natural functions and values of floodplains.

(c) Cost-sharing requirements

(1) Studies

Studies conducted under this section shall be subject to cost sharing in accordance with section 2215 of this title.

(2) Environmental restoration and nonstructural flood control projects

(A) In general

The non-Federal interests shall pay 35 percent of the cost of any environmental restoration or nonstructural flood control project carried out under this section.

(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 projects

Any structural flood control projects carried out under this section shall be subject to cost sharing in accordance with section 2213(a) of this title.

(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

(1) In general

Notwithstanding any other provision of law or requirement for economic justification established under section 1962–2 of title 42, the Secretary may implement a project under this section if the Secretary determines that the project—

(A) will significantly reduce potential flood damages;

(B) will improve the quality of the environment; and

(C) is justified considering all costs and beneficial outputs of the project.

(2) Establishment of selection and rating criteria and policies

(A) In general

Not later than 180 days after August 17, 1999, the Secretary, in cooperation with State and local agencies and tribes, shall—

(i) develop, and submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate, criteria for selecting and rating projects to be carried out under this section; and

(ii) establish policies and procedures for carrying out the studies and projects undertaken under this section.

(B) Criteria

The criteria referred to in subparagraph (A)(i) shall include, as a priority, the extent to which the appropriate State government supports the project.

(e) Priority areas

In carrying out this section, the Secretary shall examine appropriate locations, including—

(1) Pima County, Arizona, at Paseo De Las Iglesias and Rillito River;

(2) Coachella Valley, Riverside County, California;

(3) Los Angeles and San Gabriel Rivers, California;

(4) Murrieta Creek, California;

(5) Napa River Valley watershed, California, at Yountville, St. Helena, Calistoga, and American Canyon;

(6) Santa Clara basin, California, at Upper Guadalupe River and Tributaries, San Francisquito Creek, and Upper Penitencia Creek;

(7) Pond Creek, Kentucky;

(8) Red River of the North, Minnesota, North Dakota, and South Dakota;

(9) Connecticut River, New Hampshire;

(10) Pine Mount Creek, New Jersey;

(11) Southwest Valley, Albuquerque, New Mexico;

(12) Upper Delaware River, New York;

(13) Briar Creek, North Carolina;

(14) Chagrin River, Ohio;

(15) Mill Creek, Cincinnati, Ohio;

(16) Tillamook County, Oregon;

(17) Willamette River basin, Oregon;

(18) Blair County, Pennsylvania, at Altoona and Frankstown Township;

(19) Delaware River, Pennsylvania;

(20) Schuylkill River, Pennsylvania;

(21) Providence County, Rhode Island;

(22) Shenandoah River, Virginia;

(23) Lincoln Creek, Wisconsin;

(24) Perry Creek, Iowa;

(25) Lester, St. Louis, East Savanna, and Floodwood Rivers, Duluth, Minnesota;

(26) Lower Hudson River and tributaries, New York;

(27) Susquehanna River watershed, Bradford County, Pennsylvania;

(28) Clear Creek, Harris, Galveston, and Brazoria Counties, Texas;

(29) Ascension Parish, Louisiana;

(30) East Baton Rouge Parish, Louisiana;

(31) Iberville Parish, Louisiana;

(32) Livingston Parish, Louisiana; and

(33) Pointe Coupee Parish, Louisiana.

(f) Program review

(1) In general

The program established under this section shall be subject to an independent review to evaluate the efficacy of the program in achieving the dual goals of flood hazard mitigation and riverine restoration.

(2) Report

Not later than April 15, 2003, 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 findings of the review conducted under this subsection with any recommendations concerning continuation of the program.

(g) Maximum Federal cost per project

Not more than $30,000,000 may be expended by the United States on any single project under this section.

(h) 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 exceeding $15,000,000

(A) Limitation on appropriations

No appropriation shall be made to construct any project under this section the total Federal cost of construction of which exceeds $15,000,000 if the project has not been approved by resolutions adopted by the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate.

(B) Report

For the purpose of securing consideration of approval under this paragraph, the Secretary shall submit a report on the proposed project, including all relevant data and information on all costs.

(i) Authorization of appropriations

(1) In general

There are authorized to be appropriated to carry out this section $20,000,000.

(2) Full funding

All studies and projects carried out under this section from Army Civil Works appropriations shall be fully funded within the program funding levels provided in this subsection.

(Pub. L. 106–53, title II, §212, Aug. 17, 1999, 113 Stat. 288; Pub. L. 106–541, title II, §227, Dec. 11, 2000, 114 Stat. 2599; Pub. L. 110–114, title V, §5005, Nov. 8, 2007, 121 Stat. 1192.)

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

2007—Subsec. (e)(23). Pub. L. 110–114, §5005(a)(1), struck out "and" at end.

Subsec. (e)(29) to (33). Pub. L. 110–114, §5005(a), added pars. (29) to (33).

Subsec. (i)(1). Pub. L. 110–114, §5005(b), substituted "section $20,000,000" for "section—

"(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). Pub. L. 106–541 added pars. (24) to (28).

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 section 315(a)(1) of Title 6, Domestic Security.

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 sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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 (16 U.S.C. 1531 et seq.);

(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.

(Pub. L. 106–53, title V, §515, Aug. 17, 1999, 113 Stat. 344.)

References in Text

The Endangered Species Act of 1973, referred to in subsec. (c)(1), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified generally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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.

(Pub. L. 106–53, title V, §516, Aug. 17, 1999, 113 Stat. 344.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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.

(Pub. L. 106–53, title V, §559, Aug. 17, 1999, 113 Stat. 354.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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 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 (30 U.S.C. 1231 et seq.).

(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 Rehabilitation of Abandoned Mine Sites Program managed by the Sacramento District Office of the Corps of Engineers.

(f) Authorization of appropriations

There is authorized to be appropriated to carry out this section $20,000,000.

(Pub. L. 106–53, title V, §560, Aug. 17, 1999, 113 Stat. 354; Pub. L. 108–137, title I, §118, Dec. 1, 2003, 117 Stat. 1836; Pub. L. 110–114, title II, §2025, Nov. 8, 2007, 121 Stat. 1079.)

References in Text

The Surface Mining Control and Reclamation Act of 1977, referred to in subsec. (d), is Pub. L. 95–87, Aug. 3, 1977, 91 Stat. 445, as amended. Title IV of the Act is classified generally to subchapter IV (§1231 et seq.) of chapter 25 of Title 30, Mineral Lands and Mining. For complete classification of this Act to the Code, see Short Title note set out under section 1201 of Title 30 and Tables.

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

2007—Subsec. (f). Pub. L. 110–114 substituted "$20,000,000" for "$7,500,000".

2003—Subsec. (f). Pub. L. 108–137 substituted "$7,500,000" for "$5,000,000".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–53, set out as a note under section 2201 of this title.

§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.

(Pub. L. 106–541, title II, §205, Dec. 11, 2000, 114 Stat. 2590.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.

§2338. Reburial and conveyance authority

(a) Definition of Indian tribe

In this section, the term "Indian tribe" has the meaning given the term in section 5304 of title 25.

(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.

(Pub. L. 106–541, title II, §208, Dec. 11, 2000, 114 Stat. 2590.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.

§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 chapter 63 of title 31 applies.

(Pub. L. 106–541, title II, §213, Dec. 11, 2000, 114 Stat. 2593; Pub. L. 113–121, title I, §1047(e), June 10, 2014, 128 Stat. 1257; Pub. L. 114–322, title I, §1101, Dec. 16, 2016, 130 Stat. 1632.)

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). Pub. L. 114–322 added subsec. (c) and redesignated former subsec. (c) as (d).

2014—Subsec. (a). Pub. L. 113–121 substituted "about" for "at".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.

§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.

(Pub. L. 113–121, title I, §1031(b), June 10, 2014, 128 Stat. 1233.)

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.

"Secretary" Defined

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

§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.

(Pub. L. 110–114, title II, §2008, Nov. 8, 2007, 121 Stat. 1073.)

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.

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 Pub. L. 110–114, set out as a note under section 1962d–5b of Title 42, The Public Health and Welfare.

"Secretary" Defined

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

§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 (42 U.S.C. 5121 et seq.).

(Pub. L. 110–114, title II, §2009, Nov. 8, 2007, 121 Stat. 1074.)

References in Text

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in text, is Pub. L. 93–288, May 22, 1974, 88 Stat. 143, which is classified principally to chapter 68 (§5121 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables.

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.

"Secretary" Defined

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

§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 section 5170 of title 42.

(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 (Public Law 110–114; 121 Stat. 1041) or any subsequent Act; and

(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.

(Pub. L. 113–121, title I, §1011, June 10, 2014, 128 Stat. 1217; Pub. L. 114–322, title I, §1322(a), Dec. 16, 2016, 130 Stat. 1706.)

References in Text

The Water Resources Development Act of 2007, referred to in subsec. (b)(2)(A)(i), is Pub. L. 110–114, Nov. 8, 2007, 121 Stat. 1041. For complete classificaton of this Act to the Code, see Tables.

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). Pub. L. 114–322, §1322(a)(1)(A), inserted "restore or" before "prevent the loss".

Subsec. (a)(2). Pub. L. 114–322, §1322(a)(1)(B)(i), substituted "December 16, 2016" for "June 10, 2014" in introductory provisions.

Subsec. (a)(2)(A)(ii). Pub. L. 114–322, §1322(a)(1)(B)(ii), struck out before semicolon at end "that—

"(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). Pub. L. 114–322, §1322(a)(2), designated existing provisions as par. (1) and inserted heading, redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), redesignated former subpars. (A) to (C) of former par. (1) as cls. (i) to (iii), respectively, of subpar. (A) of par. (1), and added par. (2).

"Secretary" Defined

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

§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 section 5170 of title 42; or


(B) that is at significant risk for catastrophic flooding.

(Pub. L. 114–322, title I, §1144, Dec. 16, 2016, 130 Stat. 1659.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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.

(Pub. L. 110–114, title II, §2017, Nov. 8, 2007, 121 Stat. 1077; Pub. L. 114–322, title I, §1135, Dec. 16, 2016, 130 Stat. 1656.)

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

2016Pub. L. 114–322 amended section generally. Prior to amendment, section related to access to water resource data.

"Secretary" Defined

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

§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 (16 U.S.C. 1531 et seq.) or the critical habitat of such species designated under such Act;


(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 section 701s of this title, section 701g of this title, section 701r of this title, section 577(a) of this title, section 426g of this title, section 426i of this title, section 603a of this title, section 2309a of this title, or section 2330 of this title.

(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 section 701–1 of this title.

(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 FACA

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to a peer review panel established under this section.

(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 section 501(a), of title 26;

(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.

(Pub. L. 110–114, title II, §2034, Nov. 8, 2007, 121 Stat. 1086; Pub. L. 113–121, title I, §1044, June 10, 2014, 128 Stat. 1250; Pub. L. 115–270, title I, §1141, Oct. 23, 2018, 132 Stat. 3785.)

References in Text

The Endangered Species Act of 1973, referred to in subsec. (a)(5)(A)(iv), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.

The Federal Advisory Committee Act, referred to in subsec. (j), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which is set out in the Appendix to Title 5, Government Organization and Employees.

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

2018—Subsec. (h)(2). Pub. L. 115–270 substituted "17 years" for "12 years".

2014—Subsec. (a)(3)(A)(i). Pub. L. 113–121, §1044(a), substituted "$200,000,000" for "$45,000,000".

Subsec. (b)(3), (4). Pub. L. 113–121, §1044(b), added par. (3) and redesignated former par. (3) as (4).

Subsec. (c)(4). Pub. L. 113–121, §1044(c), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: "Upon identification of a project study for peer review under this section, but prior to initiation of the review, the Chief of Engineers shall 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."

Subsec. (f)(2), (3). Pub. L. 113–121, §1044(d), added pars. (2) and (3) and struck out former par. (2) which related to public availability and transmittal to Congress of a report on a project study from a panel of experts under this section.

Subsec. (h)(2). Pub. L. 113–121, §1044(e), substituted "12 years" for "7 years".

§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 FACA

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to a safety assurance review conducted under this section.

(Pub. L. 110–114, title II, §2035, Nov. 8, 2007, 121 Stat. 1091; Pub. L. 113–121, title III, §3028, June 10, 2014, 128 Stat. 1305.)

References in Text

The Federal Advisory Committee Act, referred to in subsec. (g), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which is set out in the Appendix to Title 5, Government Organization and Employees.

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—Subsec. (g). Pub. L. 113–121 added subsec. (g).

"Secretary" Defined

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

§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 16, 2016.

(2) Report on electronic system implementation

Not later than 180 days after the expiration of the deadline under paragraph (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 a report describing the measures implemented and barriers faced in carrying out 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.

(Pub. L. 110–114, title II, §2040, Nov. 8, 2007, 121 Stat. 1100; Pub. L. 114–322, title I, §1134(a), Dec. 16, 2016, 130 Stat. 1654.)

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

2016Pub. L. 114–322 amended section generally. Prior to amendment, section related to electronic submission of permit applications.

"Secretary" Defined

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

§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.

(Pub. L. 110–114, title II, §2041, Nov. 8, 2007, 121 Stat. 1100; Pub. L. 114–322, title I, §1136(b), Dec. 16, 2016, 130 Stat. 1657.)

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). Pub. L. 114–322 inserted "final post-authorization change report," after "final reevaluation report,".

"Secretary" Defined

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

§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.

(Pub. L. 110–114, title II, §2044, Nov. 8, 2007, 121 Stat. 1102.)

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.

Local Government Reservoir Permit Review

Pub. L. 115–270, title I, §1119, Oct. 23, 2018, 132 Stat. 3777, provided that:

"(a) In General.—During the 10-year period after the date of enactment of this section [Oct. 23, 2018], the Secretary [of the Army] shall expedite review of applications for covered permits, if the permit applicant is a local governmental entity with jurisdiction over an area for which—

"(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 chapter 160 of title 10, United States Code; and

"(2) mitigation of the pollution described in paragraph (1) is ongoing.

"(b) Covered Permit Defined.—In this section, the term 'covered permit' means a permit to be issued by the Secretary to modify a reservoir owned or operated by the Secretary, with respect to which not less than 80 percent of the water rights are held for drinking water supplies, in order to accommodate projected water supply needs of an area with a population of less than 80,000.

"(c) Limitations.—Nothing in this section affects any obligation to comply with the provisions of any Federal law, including—

"(1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

"(2) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)."

"Secretary" Defined

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

§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).

(Pub. L. 113–121, title I, §1010, June 10, 2014, 128 Stat. 1217.)

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.

"Secretary" Defined

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

§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 (42 U.S.C. 4321 et seq.) shall substantially commence with respect to a water storage project until the date on which the District Engineer provides to the applicant a purpose and need statement as required under paragraph (1).

(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.

(Pub. L. 115–270, title I, §1126, Oct. 23, 2018, 132 Stat. 3779.)

References in Text

The National Environmental Policy Act of 1969, referred to in subsec. (a)(2), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 102 of Pub. L. 115–270, set out as a note under section 2201 of this title.

§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 (42 U.S.C. 4321 et seq.).

(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 (42 U.S.C. 4321 et seq.) for a project study.

(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 (42 U.S.C. 4321 et seq.).

(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 section 1962d–5b(b) of title 42.

(7) Project study

The term "project study" means a feasibility study for a project carried out pursuant to section 2282 of this title.

(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 (42 U.S.C. 4321 et seq.); and

(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 (42 U.S.C. 4321 et seq.) and the requirements of section 1506.8 of title 40, Code of Federal Regulations (or successor regulations), including the concurrence of the proposed joint lead agency, a project sponsor may serve as the joint lead agency.

(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 (42 U.S.C. 4321 et seq.); and

(ii) prepare any environmental review process document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) required in support of any action or approval by the Secretary if—

(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 (42 U.S.C. 4321 et seq.);

(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 (42 U.S.C. 4321 et seq.); and

(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 (42 U.S.C. 4321 et seq.) is completed in accordance with this section and applicable Federal law.

(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 (42 U.S.C. 4321 et seq.); and

(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 section 2282(g)(2) of this title.

(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 (42 U.S.C. 4321 et. seq.) and any other Federal, State, or local approval or action required for a project study for which this section is applicable.

(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 (42 U.S.C. 4321 et seq.) other than an environmental assessment or environmental impact statement.


(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 (42 U.S.C. 4321 et seq.).

(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 (42 U.S.C. 4321 et seq.); and

(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.

(Pub. L. 110–114, title II, §2045, Nov. 8, 2007, 121 Stat. 1103; Pub. L. 113–121, title I, §1005(a)(1), June 10, 2014, 128 Stat. 1199.)

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 Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The Water Resources Reform and Development Act of 2014, referred to in subsec. (h)(5)(C)(iii), is Pub. L. 113–121, June 10, 2014, 128 Stat. 1193. For complete classification of this Act to the Code, see Short Title of 2014 Amendment note set out under section 2201 of this title and Tables.

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

2014Pub. L. 113–121 amended section generally. Prior to amendment, section related to project streamlining.

"Secretary" Defined

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

1 So in original. Probably should be "State".

§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 (42 U.S.C. 5121 et seq.), the Secretary shall treat such repair, reconstruction, or rehabilitation activity as a class of action categorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 1508.4 of title 40, Code of Federal Regulations (or successor regulations), if the repair or reconstruction activity is—

(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.

(Pub. L. 113–121, title I, §1005(b), June 10, 2014, 128 Stat. 1212.)

References in Text

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in text, is Pub. L. 93–288, May 22, 1974, 88 Stat. 143, which is classified principally to chapter 68 (§5121 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables.

This section, referred to in par. (1), means section 1005 of title I of Pub. L. 113–121, which amended this section and section 2348 of this title.

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.

"Secretary" Defined

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

1 See References in Text note below.

§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 section 556 of this title, and section 2295(b) of this title, the Secretary shall report on the corrosion prevention activities encouraged under this section, including—

(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.

(Pub. L. 113–121, title I, §1033, June 10, 2014, 128 Stat. 1233; Pub. L. 114–322, title I, §1142, Dec. 16, 2016, 130 Stat. 1658.)

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). Pub. L. 114–322 added subsec. (d).

"Secretary" Defined

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

§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.

(Pub. L. 113–121, title III, §3022, June 10, 2014, 128 Stat. 1301.)

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.

"Secretary" Defined

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

§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.

(Pub. L. 115–270, title I, §1113, Oct. 23, 2018, 132 Stat. 3775.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 102 of Pub. L. 115–270, set out as a note under section 2201 of this title.

§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 section 16451 of title 42, except that the term also includes a person engaged in the transportation of natural gas in intrastate commerce.

(B) Public-utility company

The term "public-utility company" has the meaning given the term in section 16451 of title 42.

(C) Railroad carrier

The term "railroad carrier" has the meaning given the term in section 20102 of title 49.

(2) Permit processing

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.

(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.

(Pub. L. 106–541, title II, §214, Dec. 11, 2000, 114 Stat. 2594; Pub. L. 108–137, title I, §114, Dec. 1, 2003, 117 Stat. 1836; Pub. L. 109–99, §1, Nov. 11, 2005, 119 Stat. 2169; Pub. L. 109–209, §1, Mar. 24, 2006, 120 Stat. 318; Pub. L. 109–434, §1, Dec. 20, 2006, 120 Stat. 3197; Pub. L. 110–114, title II, §2002, Nov. 8, 2007, 121 Stat. 1067; Pub. L. 111–120, §1, Dec. 22, 2009, 123 Stat. 3478; Pub. L. 111–315, §1, Dec. 18, 2010, 124 Stat. 3450; Pub. L. 113–121, title I, §1006, June 10, 2014, 128 Stat. 1212; Pub. L. 114–322, title I, §1125, Dec. 16, 2016, 130 Stat. 1648; Pub. L. 115–270, title I, §1145, Oct. 23, 2018, 132 Stat. 3785.)

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 section 2201 of this title.

Amendments

2018—Subsec. (a)(3). Pub. L. 115–270, §1145(1), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "The authority provided under paragraph (2) to a public-utility company, natural gas company, or railroad carrier shall expire on the date that is 10 years after June 10, 2014."

Subsec. (a)(4), (5). Pub. L. 115–270 redesignated par. (5) as (4) and substituted "December 31, 2022" for "4 years after June 10, 2014" and "carry out a followup study" for "carry out a study".

2016—Subsec. (a)(1)(C). Pub. L. 114–322, §1125(1), added subpar. (C).

Subsec. (a)(2). Pub. L. 114–322, §1125(2), substituted ", natural gas company, or railroad carrier" for "or natural gas company" and ", company, or carrier" for "or company".

Subsec. (a)(3). Pub. L. 114–322, §1125(3), substituted ", natural gas company, or railroad carrier" for "or natural gas company" and "10 years" for "7 years".

Subsec. (a)(5). Pub. L. 114–322, §1125(4), substituted ", 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" for "and natural gas companies".

2014—Subsec. (a)(1), (2). Pub. L. 113–121, §1006(1)(A), (B), substituted "Funding to process permits" for "In general" in subsec. heading, added par. (1), redesignated text of subsec. (a) as par. (2), inserted heading, and inserted "or a public-utility company or natural gas company" after "non-Federal public entity" and "or company" after "that entity".

Subsec. (a)(3) to (5). Pub. L. 113–121, §1006(1)(C), added pars. (3) to (5).

Subsecs. (d), (e). Pub. L. 113–121, §1006(2), added subsecs. (d) and (e) and struck out former subsecs. (d) and (e) which read as follows:

"(d) Public Availability.—The Secretary shall ensure that all final permit decisions carried out using funds authorized under this section are made available to the public, including on the Internet.

"(e) Duration of Authority.—The authority provided under this section shall be in effect from October 1, 2000, through December 31, 2016."

2010—Subsec. (a). Pub. L. 111–315, §1(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: "The Secretary, after public notice, may accept and expend funds contributed by non-Federal public entities to expedite the evaluation of permits under the jurisdiction of the Department of the Army."

Subsec. (b). Pub. L. 111–315, §1(3), added subsec. (b) and struck out former subsec. (b). Prior to amendment, text read as follows: "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."

Subsecs. (c) to (e). Pub. L. 111–315, §1(2)–(4), added subsecs. (c) and (d), redesignated former subsec. (c) as (e), and, in subsec. (e), substituted "2016" for "2010".

2009—Subsec. (c). Pub. L. 111–120 substituted "2010" for "2009".

2007—Subsec. (c). Pub. L. 110–114 substituted "2009" for "2008".

2006—Subsec. (c). Pub. L. 109–434 substituted "December 31, 2008" for "December 31, 2006".

Pub. L. 109–209 substituted "December 31, 2006" for "March 31, 2006".

2005—Subsec. (a). Pub. L. 109–99, §1(1), substituted "The" for "In fiscal years 2001 through 2005, the".

Subsec. (c). Pub. L. 109–99, §1(2), added subsec. (c).

2003—Subsec. (a). Pub. L. 108–137 substituted "2005" for "2003".

"Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.

§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.

(Pub. L. 114–322, title I, §1151, Dec. 16, 2016, 130 Stat. 1661.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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 (7 U.S.C. 901 et seq.).

(c) Administrative expenses

Nothing in this section affects the authority of the Secretary under section 2695 of title 10 or under section 9701 of title 31 to collect funds to cover reasonable administrative expenses incurred by the Secretary.

(Pub. L. 114–322, title I, §1172, Dec. 16, 2016, 130 Stat. 1671.)

References in Text

The Rural Electrification Act of 1936, referred to in subsec. (b), is act May 20, 1936, ch. 432, 49 Stat. 1363, which is classified generally to chapter 31 (§901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of Title 7 and Tables.

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 1002 of Pub. L. 114–322, set out as a note under section 2201 of this title.

§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.

(Pub. L. 115–270, title I, §1127, Oct. 23, 2018, 132 Stat. 3780.)

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.

"Secretary" Defined

Secretary means the Secretary of the Army, see section 102 of Pub. L. 115–270, set out as a note under section 2201 of this title.