CHAPTER 36 —WATER RESOURCES DEVELOPMENT
SUBCHAPTER I—COST SHARING
SUBCHAPTER II—HARBOR DEVELOPMENT
SUBCHAPTER III—INLAND WATERWAY TRANSPORTATION SYSTEM
SUBCHAPTER IV—WATER RESOURCES STUDIES
SUBCHAPTER V—GENERAL PROVISIONS
§2201. "Secretary" defined
For purposes of this Act, the term "Secretary" means the Secretary of the Army.
(
References in Text
This Act, referred to in text, is
Short Title of 2018 Amendment
Short Title of 2016 Amendment
Short Title of 2014 Amendment
Short Title of 2007 Amendment
Short Title of 2000 Amendment
Short Title of 1999 Amendment
Short Title of 1996 Amendment
Short Title of 1992 Amendment
Short Title of 1990 Amendment
Short Title of 1988 Amendment
Short Title
Reports to Congress
"(a)
"(b)
"(1) subparagraphs (A) and (B) of section 1043(a)(5) [
"(2) section 1046(a)(2)(B) [
"(3) section 210(e)(3) of the Water Resources Development Act of 1986 (
"(4) section 7001 [
"(c)
"(1)
"(2)
"(d)
"(1)
"(2)
"(e)
"(1) a major modification has been made to the content of the report that requires additional analysis for the Secretary to make a final decision on the report;
"(2) amounts have not been appropriated to the agency under this Act or any other Act to carry out the report; or
"(3) additional information is required from an entity other than the Corps of Engineers and is not available in a timely manner to complete the report by the deadline.
"(f)
Non-Federal Implementation Pilot Program
"(a)
"(1)
"(2)
"(A) to identify project delivery and cost-saving alternatives to the existing feasibility study process;
"(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out a feasibility study of 1 or more projects; and
"(C) to evaluate alternatives for the decentralization of the project planning, management, and operational decisionmaking process of the Corps of Engineers.
"(3)
"(A)
"(i) flood risk management;
"(ii) hurricane and storm damage reduction, including levees, floodwalls, flood control channels, and water control structures;
"(iii) coastal harbor and channel and inland navigation; and
"(iv) aquatic ecosystem restoration.
"(B)
"(i)
"(ii)
"(I) non-Federal funds were used to carry out the activities that would have been the responsibility of the Secretary;
"(II) the Secretary determines that the feasibility study complies with all applicable Federal laws and regulations; and
"(III) the project is authorized by any provision of Federal law enacted after the date on which an agreement is entered into under subparagraph (A).
"(C)
"(i)
"(I) if applicable, the balance of any unobligated amounts appropriated for the study, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
"(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of the feasibility study.
"(ii)
"(I) has the necessary qualifications to administer those funds; and
"(II) will comply with all applicable Federal laws (including regulations) relating to the use of those funds.
"(D)
"(E)
"(F)
"(G)
"(4)
"(5)
"(A)
"(i) a description of the progress of the non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (3)(G); and
"(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.
"(B)
"(C)
"(6)
"(7)
"(8)
"(b)
"(1)
"(2)
"(A) to identify project delivery and cost-saving alternatives that reduce the backlog of authorized Corps of Engineers projects;
"(B) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out the design, execution, management, and construction of 1 or more projects; and
"(C) to evaluate alternatives for the decentralization of the project management, design, and construction for authorized Corps of Engineers water resources projects.
"(3)
"(A)
"(i) identify a total of not more than 20 projects for flood risk management, hurricane and storm damage reduction (including levees, floodwalls, flood control channels, and water control structures), coastal harbor and channels, inland navigation, and aquatic ecosystem restoration that have been authorized for construction, including—
"(I) not more than 12 projects that have been authorized for construction prior to the date of enactment of this Act and that—
"(aa)(AA) have received Federal funds prior to the date of enactment of this Act; or
"(BB) for more than 2 consecutive fiscal years, have an unobligated funding balance for that project in the Corps of Engineers construction account; and
"(bb) to the maximum extent practicable, are located in each of the divisions of the Corps of Engineers;
"(II) not more than 3 projects that have been authorized for construction prior to the date of enactment of this Act and that have not received Federal funds in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act; and
"(III) not more than 5 projects that have been authorized for construction, but did not receive the authorization prior to the date of enactment of this Act;
"(ii) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the identification of each project under the pilot program;
"(iii) in collaboration with the non-Federal interest, develop a detailed project management plan for each identified project that outlines the scope, budget, design, and construction resource requirements necessary for the non-Federal interest to execute the project, or a separable element of the project;
"(iv) on the request of the non-Federal interest, enter into a project partnership agreement with the non-Federal interest for the non-Federal interest to provide full project management control for construction of the project, or a separable element of the project, in accordance with plans approved by the Secretary;
"(v) following execution of the project partnership agreement, transfer to the non-Federal interest to carry out construction of the project, or a separable element of the project—
"(I) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and
"(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and
"(vi) regularly monitor and audit each project being constructed by a non-Federal interest under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.
"(B)
"(C)
"(i) any study, engineering activity, and design activity for construction carried out by the non-Federal interest under this subsection; and
"(ii) expeditiously obtaining any permits necessary for the project.
"(4)
"(5)
"(A)
"(i) a description of the progress of non-Federal interests in meeting milestones in detailed project schedules developed pursuant to paragraph (2)(B); and
"(ii) any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.
"(B)
"(C)
"(6)
"(7)
"(8)
Water Infrastructure Public-Private Partnership Pilot Program
"(a)
"(b)
"(1) to identify cost-saving project delivery alternatives that reduce the backlog of authorized Corps of Engineers projects; and
"(2) to evaluate the technical, financial, and organizational benefits of allowing a non-Federal pilot applicant to carry out and manage the design or construction (or both) of 1 or more of such projects.
"(c)
"(d)
"(1) identify for inclusion in the program at least 15 projects that are authorized for construction for coastal harbor improvement, channel improvement, inland navigation, flood damage reduction, or hurricane and storm damage reduction;
"(2) notify in writing the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of each project identified under paragraph (1);
"(3) in consultation with the non-Federal pilot applicant associated with each project identified under paragraph (1), develop a detailed project management plan for the project that outlines the scope, financing, budget, design, and construction resource requirements necessary for the non-Federal pilot applicant to execute the project, or a separable element of the project;
"(4) at the request of the non-Federal pilot applicant associated with each project identified under paragraph (1), enter into a project partnership agreement with the non-Federal pilot applicant under which the non-Federal pilot applicant is provided full project management control for the financing, design, or construction (or any combination thereof) of the project, or a separable element of the project, in accordance with plans approved by the Secretary;
"(5) following execution of a project partnership agreement under paragraph (4) and completion of all work under the agreement, issue payment, in accordance with subsection (g), to the relevant non-Federal pilot applicant for that work; and
"(6) regularly monitor and audit each project carried out under the program to ensure that all activities related to the project are carried out in compliance with plans approved by the Secretary and that construction costs are reasonable.
"(e)
"(1) is significant to the economy of the United States;
"(2) leverages Federal investment by encouraging non-Federal contributions to the project;
"(3) employs innovative project delivery and cost-saving methods;
"(4) received Federal funds in the past and experienced delays or missed scheduled deadlines;
"(5) has unobligated Corps of Engineers funding balances; and
"(6) has not received Federal funding for recapitalization and modernization since the project was authorized.
"(f)
"(g)
"(1) if applicable, the balance of the unobligated amounts appropriated for the project; and
"(2) other amounts appropriated to the Corps of Engineers, subject to the condition that the total amount transferred to the non-Federal pilot applicant may not exceed the estimate of the Federal share of the cost of construction, including any required design.
"(h)
"(1) a study, engineering activity, or design activity related to a project carried out by the non-Federal pilot applicant under the program; and
"(2) obtaining permits necessary for such a project.
"(i)
"(1)
"(A) except as provided in paragraph (2), identify any procedural requirements under the authority of the Secretary that impede greater use of public-private partnerships and private investment in water resources development projects;
"(B) develop and implement, on a project-by-project basis, procedures and approaches that—
"(i) address such impediments; and
"(ii) protect the public interest and any public investment in water resources development projects that involve public-private partnerships or private investment in water resources development projects; and
"(C) not later than 1 year after the date of enactment of this section [June 10, 2014], issue rules to carry out the procedures and approaches developed under subparagraph (B).
"(2)
"(A) sections 3141 through 3148 and
"(B) the National Environmental Policy Act of 1969 (
"(C) any other provision of Federal law.
"(j)
"(1)
"(2)
"(A) be completed in a period of not more than 90 days;
"(B) take into consideration any supporting materials and data submitted by the relevant non-Federal pilot applicant and other stakeholders; and
"(C) determine whether the proposed project partnership agreement is in the public interest by determining whether the agreement will provide public and financial benefits, including expedited project delivery and savings for taxpayers.
"(k)
"(l)
"(m)
"(n)
"(o)
"(1) the non-Federal sponsor of the water resources development project;
"(2) a non-Federal interest, as defined in section 221 of the Flood Control Act of 1970 (
"(3) a private entity with the consent of the local government in which the project is located or that is otherwise affected by the project."
Funding to Process Permits
Monitoring
"(a)
"(b)
"(c)
"(d)
"(1) for which a contract for physical construction has not been awarded before the date of enactment of this Act [Dec. 11, 2000];
"(2) that has a total cost of more than $25,000,000; and
"(3)(A) that has as a benefit-to-cost ratio of less than 1.5 to 1; or
"(B) that has significant environmental benefits or significant environmental mitigation components.
"(e)
Water Control Management
"(a)
"(b)
"(1) a description of the primary objectives of streamlining water control management activities;
"(2) a description of the benefits provided by streamlining water control management activities through consolidation of centers for those activities;
"(3) a determination whether the benefits to users of establishing regional water control management centers will be retained in each district office of the Corps of Engineers that does not have a regional center;
"(4) a determination whether users of regional centers will receive a higher level of benefits from streamlining water control management activities; and
"(5) a list of the members of Congress who represent a district that includes a water control management center that is to be eliminated under a proposed regionalized plan."
Buy American; Sense of Congress; Requirement Regarding Notice
"(a)
"(b)
"(a)
"(b)
Budget Act Requirements
"Secretary" Defined
Promoting the Reliable Supply and Delivery of Water in the West
Memorandum of President of the United States, Oct. 19, 2018, 83 F.R. 53961, provided:
Memorandum for the Secretary of the Interior[,] the Secretary of Commerce[,] the Secretary of Energy[,] the Secretary of the Army[, and] the Chair of the Council on Environmental Quality
By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Unless addressed, fragmented regulation of water infrastructure will continue to produce inefficiencies, unnecessary burdens, and conflict among the Federal Government, States, tribes, and local public agencies that deliver water to their citizenry. To meet these challenges, the Secretary of the Interior and the Secretary of Commerce should, to the extent permitted by law, work together to minimize unnecessary regulatory burdens and foster more efficient decision-making so that water projects are better able to meet the demands of their authorized purposes.
(a) Within 30 days of the date of this memorandum [Oct. 19, 2018], the Secretary of the Interior and the Secretary of Commerce shall:
(i) identify major water infrastructure projects in California for which the Department of the Interior and the Department of Commerce have joint responsibility under the Endangered Species Act of 1973 (ESA) (
(ii) for each such project, work together to facilitate the designation of one official to coordinate the agencies' ESA and NEPA compliance responsibilities. Within the 30-day time period provided by this subsection, the designated official shall also identify regulations and procedures that potentially burden the project and develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law. For purposes of this memorandum, "burden" means to unnecessarily obstruct, delay, curtail, impede, or otherwise impose significant costs on the permitting, utilization, transmission, delivery, or supply of water resources and infrastructure.
(b) Within 40 days of the date of this memorandum, the Secretary of the Interior and the Secretary of Commerce shall develop a timeline for completing applicable environmental compliance requirements for projects identified under section 2(a)(i) of this memorandum. Environmental compliance requirements shall be completed as expeditiously as possible, and in accordance with applicable law.
(c) To the maximum extent practicable and consistent with applicable law, including the authorities granted to the Secretary of the Interior and the Secretary of Commerce under the Water Infrastructure Improvements for the Nation Act (
(i) The Secretary of the Interior and the Secretary of Commerce shall ensure that the ongoing review of the long-term coordinated operations of the Central Valley Project and the California State Water Project is completed and an updated Plan of Operations and Record of Decision is issued.
(ii) The Secretary of the Interior shall issue final biological assessments for the long-term coordinated operations of the Central Valley Project and the California State Water Project not later than January 31, 2019.
(iii) The Secretary of the Interior and the Secretary of Commerce shall ensure the issuance of their respective final biological opinions for the long-term coordinated operations of the Central Valley Project and the California State Water Project within 135 days of the deadline provided in section 2(c)(ii) of this memorandum. To the extent practicable and consistent with law, these shall be joint opinions.
(iv) The Secretary of the Interior and the Secretary of Commerce shall complete the joint consultation presently underway for the Klamath Irrigation Project by August 2019.
(d) The Secretary of the Interior and the Secretary of Commerce shall provide monthly updates to the Chair of the Council on Environmental Quality and other components of the Executive Office of the President, as appropriate, regarding progress in meeting the established timelines.
(a) investment in technology and reduction of regulatory burdens to enable broader scale deployment of desalination technology;
(b) investment in technology and reduction of regulatory burdens to enable broader scale use of recycled water; and
(c) investment in programs that promote and encourage innovation, research, and development of technology that improve water management, using best available science through real-time monitoring of wildlife and water deliveries.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.
Donald J. Trump.
§2202. Non-Federal engagement and review
(a) Issuance
The Secretary shall expeditiously issue guidance to implement each covered provision of law in accordance with this section.
(b) Public notice
(1) In general
Prior to developing and issuing any new or revised implementation guidance for a covered water resources development law, the Secretary shall issue a public notice that—
(A) informs potentially interested non-Federal stakeholders of the Secretary's intent to develop and issue such guidance; and
(B) provides an opportunity for interested non-Federal stakeholders to engage with, and provide input and recommendations to, the Secretary on the development and issuance of such guidance.
(2) Issuance of notice
The Secretary shall issue the notice under paragraph (1) through a posting on a publicly accessible website dedicated to providing notice on the development and issuance of implementation guidance for a covered water resources development law.
(c) Stakeholder engagement
(1) Input
The Secretary shall allow a minimum of 60 days after issuance of the public notice under subsection (b) for non-Federal stakeholders to provide input and recommendations to the Secretary, prior to finalizing implementation guidance for a covered water resources development law.
(2) Outreach
The Secretary may, as appropriate (as determined by the Secretary), reach out to non-Federal stakeholders and circulate drafts of implementation guidance for a covered water resources development law for informal input and recommendations.
(d) Submission
The Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a copy of all input and recommendations received pursuant to subsection (c) and a description of any consideration of such input and recommendations.
(e) Development of guidance
When developing implementation guidance for a covered water resources development law, the Secretary shall take into consideration the input and recommendations received from non-Federal stakeholders, and make the final guidance available to the public on the publicly accessible website described in subsection (b)(2).
(f) Definitions
In this section:
(1) Covered provision of law
The term "covered provision of law" means a provision of law under the jurisdiction of the Secretary contained in, or amended by, a covered water resources development law, with respect to which—
(A) the Secretary determines guidance is necessary in order to implement the provision; and
(B) no such guidance has been issued as of October 23, 2018.
(2) Covered water resources development law
The term "covered water resources development law" means—
(A) the Water Resources Reform and Development Act of 2014;
(B) the Water Resources Development Act of 2016;
(C) this Act; and
(D) any Federal water resources development law enacted after October 23, 2018.
(
References in Text
The Water Resources Reform and Development Act of 2014, referred to in subsec. (f)(2)(A), is
The Water Resources Development Act of 2016, referred to in subsec. (f)(2)(B), is title I of
This Act, referred to in subsec. (f)(2)(C), probably means title I of
Codification
Section was enacted as part of the Water Resources Development Act of 2018, and also as part of the America's Water Infrastructure Act of 2018, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
"Secretary" Defined
Secretary means the Secretary of the Army, see section 102 of
SUBCHAPTER I—COST SHARING
§2211. Harbors
(a) Construction
(1) Payments during construction
The non-Federal interests for a navigation project for a harbor or inland harbor, or any separable element thereof, on which a contract for physical construction has not been awarded before June 10, 2014, shall pay, during the period of construction of the project, the following costs associated with general navigation features:
(A) 10 percent of the cost of construction of the portion of the project which has a depth not in excess of 20 feet; plus
(B) 25 percent of the cost of construction of the portion of the project which has a depth in excess of 20 feet but not in excess of 50 feet; plus
(C) 50 percent of the cost of construction of the portion of the project which has a depth in excess of 50 feet.
(2) Additional 10 percent payment over 30 years
The non-Federal interests for a project to which paragraph (1) applies shall pay an additional 10 percent of the cost of the general navigation features of the project in cash over a period not to exceed 30 years, at an interest rate determined pursuant to
(3) Lands, easements, and rights-of-way
Except as provided under
(4) Utility relocations
The non-Federal interests for a project to which paragraph (1) applies shall perform or assure the performance of all relocations of utilities necessary to carry out the project, except that in the case of a project for a deep-draft harbor and in the case of a project constructed by non-Federal interests under
(5) Dredged material disposal facilities for project construction
In this subsection, the term "general navigation features" includes constructed land-based and aquatic dredged material disposal facilities that are necessary for the disposal of dredged material required for project construction and for which a contract for construction has not been awarded on or before October 12, 1996.
(b) Operation and maintenance
(1) In general
The Federal share of the cost of operation and maintenance of each navigation project for a harbor or inland harbor constructed by the Secretary pursuant to this Act or any other law approved after November 17, 1986, shall be 100 percent, except that in the case of a deep-draft harbor, the non-Federal interests shall be responsible for an amount equal to 50 percent of the excess of the cost of the operation and maintenance of such project over the cost which the Secretary determines would be incurred for operation and maintenance of such project if such project had a depth of 50 feet.
(2) Dredged material disposal facilities
The Federal share of the cost of constructing land-based and aquatic dredged material disposal facilities that are necessary for the disposal of dredged material required for the operation and maintenance of a project and for which a contract for construction has not been awarded on or before October 12, 1996, shall be determined in accordance with subsection (a). The Federal share of operating and maintaining such facilities shall be determined in accordance with paragraph (1).
(c) Erosion or shoaling attributable to Federal navigation works
Costs of constructing projects or measures for the prevention or mitigation of erosion or shoaling damages attributable to Federal navigation works shall be shared in the same proportion as the cost sharing provisions applicable to the project causing such erosion or shoaling. The non-Federal interests for the project causing the erosion or shoaling shall agree to operate and maintain such measures.
(d) Non-Federal payments during construction
The amount of any non-Federal share of the cost of any navigation project for a harbor or inland harbor shall be paid to the Secretary. Amounts required to be paid during construction shall be paid on an annual basis during the period of construction, beginning not later than one year after construction is initiated.
(e) Agreement
Before initiation of construction of a project to which this section applies, the Secretary and the non-Federal interests shall enter into a cooperative agreement according to the provisions of
(1) provide to the Federal Government lands, easements, and rights-of-way, including those necessary for dredged material disposal facilities, and perform the necessary relocations required for construction, operation, and maintenance of such project;
(2) hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or negligence of the United States or its contractors;
(3) provide to the Federal Government the non-Federal share of all other costs of construction of such project; and
(4) in the case of a deep-draft harbor, be responsible for the non-Federal share of operation and maintenance required by subsection (b) of this section.
(f) Consideration of funding requirements and equitable apportionment
The Secretary shall ensure, to the extent practicable, that—
(1) funding requirements for operation and maintenance dredging of commercial navigation harbors are considered before Federal funds are obligated for payment of the Federal share of costs associated with the construction of dredged material disposal facilities in accordance with subsections (a) and (b);
(2) funds expended for such construction are apportioned equitably in accordance with regional needs; and
(3) use of a dredged material disposal facility designed, constructed, managed, or operated by a private entity is not precluded if, consistent with economic and environmental considerations, the facility is the least-cost alternative.
(
References in Text
This Act, referred to in subsec. (b)(1), is
Amendments
2016—Subsec. (a)(1).
Subsec. (a)(1)(B).
Subsec. (a)(1)(C).
2014—Subsec. (b)(1).
1996—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(5).
Subsec. (b).
Subsec. (e)(1).
Subsec. (f).
1992—Subsec. (a)(3).
1988—Subsec. (a)(2).
Effective Date of 1988 Amendment
Deep Draft Harbor Cost Sharing
"(a)
"(1) cost sharing adversely affects United States port development or domestic and international trade; and
"(2) any revision of the cost-sharing requirements would benefit United States domestic and international trade.
"(b)
"(1)
"(2)
"(A) the potential economic, environmental, and budgetary impacts of any proposed revision of the cost-sharing requirements; and
"(B) the effect that any such revision would have on regional port competition."
Amendment of Cooperation Agreement
Increases in Non-Federal Share of Costs
"(1) expanding any confined dredged material disposal facility that is operated by the Secretary and that is authorized for cost recovery through the collection of tolls;
"(2) any confined dredged material disposal facility for which the invitation for bids for construction was issued before the date of the enactment of this Act [Oct. 12, 1996]; and
"(3) expanding any confined dredged material disposal facility constructed under section 123 of the River and Harbor Act of 1970 (
Dredged Material Disposal Areas Study
§2211a. Preserving United States harbors
(a) In general
Upon a request from a non-Federal interest, the Secretary shall review a report developed by the non-Federal interest that provides an economic justification for Federal investment in the operation and maintenance of a federally authorized harbor or inland harbor (referred to in this section as a "federally authorized harbor").
(b) Justification of investment
A report submitted under subsection (a) may provide for an economic justification of Federal investment in the operation and maintenance of a federally authorized harbor based on—
(1) the projected economic benefits, including transportation savings and job creation; and
(2) other factors, including navigation safety, national security, and sustainability of subsistence harbors.
(c) Written response
Not later than 180 days after the date on which the Secretary receives a report under subsection (a), the Secretary shall provide to the non-Federal interest a written response to the report, including an assessment of the information provided by the non-Federal interest.
(d) Prioritization
As the Secretary determines to be appropriate, the Secretary may use the information provided in the report under subsection (a) to justify additional operation and maintenance funding for a federally authorized harbor in accordance with
(e) Limitation on statutory construction
Nothing in this section may be construed to preclude the operation and maintenance of a federally authorized harbor under
(
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
§2212. Inland waterway transportation
(a) Construction
One-half of the costs of construction—
(1) of each project authorized by title III of this Act,
(2) of the project authorized by
(3) allocated to inland navigation for the project authorized by section 844 of this Act,
shall be paid only from amounts appropriated from the general fund of the Treasury. One-half of such costs shall be paid only from amounts appropriated from the Inland Waterways Trust Fund. For purposes of this subsection, the term "construction" shall include planning, designing, engineering, surveying, the acquisition of all lands, easements, and rights-of-way necessary for the project, including lands for disposal of dredged material, and relocations necessary for the project.
(b) Operation and maintenance
The Federal share of the cost of operation and maintenance of any project for navigation on the inland waterways is 100 percent.
(c) Floodgates on the Inland Waterways
(1) Operation and maintenance carried out by the Secretary
Notwithstanding any other provision of law, the Secretary shall be responsible for the operation and maintenance, including repair, of any flood gate, as well as any pumping station constructed within the channel as a single unit with that flood gate, that—
(A) was constructed as of June 10, 2014, as a feature of an authorized hurricane and storm damage reduction project; and
(B) crosses an inland or intracoastal waterway described in
(2) Non-Federal cost share
The non-Federal share of the cost of operation, maintenance, repair, rehabilitation, and replacement of any structure under this subsection shall be 35 percent.
(d) Authorizations from general fund
Any Federal responsibility—
(1) with respect to a project authorized by title III or
(2) with respect to the portion of the project authorized by section 844 allocated to inland navigation,
which responsibility is not provided for in subsection (a) of this section shall be paid only from amounts appropriated from the general fund of the Treasury.
(
References in Text
Title III of this Act, referred to in subsecs. (a)(1) and (d)(1), is title III of
Section 844 of this Act, referred to in subsecs. (a)(3) and (d)(2), is section 844 of
Amendments
2014—Subsecs. (c), (d).
Acceptance of Contributed Funds To Increase Lock Operations
"(a)
"(b)
"(c)
"(1) publish the proposed modification in the Federal Register; and
"(2) accept public comment on the proposed modification.
"(d)
"(1)
"(2)
"(e)
"(f)
§2213. Flood control and other purposes
(a) Flood control
(1) General rule
The non-Federal interests for a project with costs assigned to flood control (other than a nonstructural project) shall—
(A) pay 5 percent of the cost of the project assigned to flood control during construction of the project;
(B) provide all lands, easements, rights-of-way, and dredged material disposal areas required only for flood control and perform all related necessary relocations; and
(C) provide that portion of the joint costs of lands, easements, rights-of-way, dredged material disposal areas, and relocations which is assigned to flood control.
(2) 35 percent minimum contribution
If the value of the contributions required under paragraph (1) of this subsection is less than 35 percent of the cost of the project assigned to flood control, the non-Federal interest shall pay during construction of the project such additional amounts as are necessary so that the total contribution of the non-Federal interests under this subsection is equal to 35 percent of the cost of the project assigned to flood control.
(3) 50 percent maximum
The non-Federal share under paragraph (1) shall not exceed 50 percent of the cost of the project assigned to flood control. The preceding sentence does not modify the requirement of paragraph (1)(A) of this subsection.
(4) Deferred payment of amount exceeding 30 percent
If the total amount of the contribution required under paragraph (1) of this subsection exceeds 30 percent of the cost of the project assigned to flood control, the non-Federal interests may pay the amount of the excess to the Secretary over a 15-year period (or such shorter period as may be agreed to by the Secretary and the non-Federal interests) beginning on the date construction of the project or separable element is completed, at an interest rate determined pursuant to
(b) Nonstructural flood control projects
(1) In general
The non-Federal share of the cost of nonstructural flood control measures shall be 35 percent of the cost of such measures. The non-Federal interests for any such measures shall be required to provide all lands, easements, rights-of-way, dredged material disposal areas, and relocations necessary for the project, but shall not be required to contribute any amount in cash during construction of the project.
(2) Non-Federal contribution in excess of 35 percent
At any time during construction of a project, if the Secretary determines that the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for the project, in combination with other costs contributed by the non-Federal interests, will exceed 35 percent, any additional costs for the project (not to exceed 65 percent of the total costs of the project) shall be a Federal responsibility and shall be contributed during construction as part of the Federal share.
(c) Other purposes
The non-Federal share of the cost assigned to other project purposes shall be as follows:
(1) hydroelectric power: 100 percent, except that the marketing of such power and the recovery of costs of constructing, operating, maintaining, and rehabilitating such projects shall be in accordance with existing law: Provided, That after November 17, 1986, the Secretary shall not submit to Congress any proposal for the authorization of any water resources project that has a hydroelectric power component unless such proposal contains the comments of the appropriate Power Marketing Administrator designated pursuant to
(2) municipal and industrial water supply: 100 percent;
(3) agricultural water supply: 35 percent;
(4) recreation, including recreational navigation: 50 percent of separable costs and, in the case of any harbor or inland harbor or channel project, 50 percent of joint and separable costs allocated to recreational navigation;
(5) hurricane and storm damage reduction: 35 percent;
(6) aquatic plant control: 50 percent of control operations; and
(7) environmental protection and restoration: 35 percent; except that nothing in this paragraph shall affect or limit the applicability of
(d) Certain other costs assigned to project purposes
(1) Construction
Costs of constructing projects or measures for beach erosion control and water quality enhancement shall be assigned to appropriate project purposes listed in subsections (a), (b), and (c) and shall be shared in the same percentage as the purposes to which the costs are assigned, except that all costs assigned to benefits to privately owned shores (where use of such shores is limited to private interests) or to prevention of losses of private lands shall be borne by non-Federal interests and all costs assigned to the protection of federally owned shores shall be borne by the United States.
(2) Periodic nourishment
(A) In general
In the case of a project authorized for construction after December 31, 1999, except for a project for which a District Engineer's Report is completed by that date, the non-Federal cost of the periodic nourishment of the project, or any measure for shore protection or beach erosion control for the project, that is carried out—
(i) after January 1, 2001, shall be 40 percent;
(ii) after January 1, 2002, shall be 45 percent; and
(iii) after January 1, 2003, shall be 50 percent.
(B) Benefits to privately owned shores
All costs assigned to benefits of periodic nourishment projects or measures to privately owned shores (where use of such shores is limited to private interests) or to prevention of losses of private land shall be borne by the non-Federal interest.
(C) Benefits to federally owned shores
All costs assigned to the protection of federally owned shores for periodic nourishment measures shall be borne by the United States.
(e) Applicability
(1) In general
This section applies to any project (including any small project which is not specifically authorized by Congress and for which the Secretary has not approved funding before November 17, 1986), or separable element thereof, on which physical construction is initiated after April 30, 1986, as determined by the Secretary, except as provided in paragraph (2). For the purpose of the preceding sentence, physical construction shall be considered to be initiated on the date of the award of a construction contract.
(2) Exceptions
This section shall not apply to the Yazoo Basin, Mississippi, Demonstration Erosion Control Program, authorized by
(f) "Separable element" defined
For purposes of this Act, the term "separable element" means a portion of a project—
(1) which is physically separable from other portions of the project; and
(2) which—
(A) achieves hydrologic effects, or
(B) produces physical or economic benefits,
which are separately identifiable from those produced by other portions of the project.
(g) Deferral of payment
(1) With respect to the projects listed in paragraph (2), no amount of the non-Federal share required under this section shall be required to be paid during the three-year period beginning on November 17, 1986.
(2) The projects referred to in paragraph (1) are the following:
(A) Boeuf and Tensas Rivers, Tensas Basin, Louisiana and Arkansas, authorized by the Flood Control Act of 1946;
(B) Eight Mile Creek, Arkansas, authorized by
(C) Rocky Bayou Area, Yazoo Backwater Area, Yazoo Basin, Mississippi, authorized by the Flood Control Act approved August 18, 1941.
(h) Assigned joint and separable costs
The share of the costs specified under this section for each project purpose shall apply to the joint and separable costs of construction of each project assigned to that purpose, except as otherwise specified in this Act.
(i) Lands, easements, rights-of-way, dredged material disposal areas, and relocations
Except as provided under
(j) Agreement
(1) Requirement for agreement
Any project to which this section applies (other than a project for hydroelectric power) shall be initiated only after non-Federal interests have entered into binding agreements with the Secretary to pay 100 percent of the operation, maintenance, and replacement and rehabilitation costs of the project, to pay the non-Federal share of the costs of construction required by this section, and to hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or negligence of the United States or its contractors.
(2) Elements of agreement
The agreement required pursuant to paragraph (1) shall be in accordance with the requirements of
(A) shall terminate or suspend work on the project unless the Secretary determines that continuation of the work is in the interest of the United States or is necessary in order to satisfy agreements with other non-Federal interests in connection with the project; and
(B) may terminate or adjust the rights and privileges of the non-Federal interest to project outputs under the terms of the agreement.
(k) Payment options
Except as otherwise provided in this section, the Secretary may permit the full non-Federal contribution to be made without interest during construction of the project or separable element, or with interest at a rate determined pursuant to
(l) Delay of initial payment
At the request of any non-Federal interest the Secretary may permit such non-Federal interest to delay the initial payment of any non-Federal contribution under this section or
(m) Ability to pay
(1) In general
Any cost-sharing agreement under this section for a feasibility study, or for construction of an environmental protection and restoration project, a flood control project, a project for navigation, storm damage protection, shoreline erosion, hurricane protection, or recreation, or an agricultural water supply project, shall be subject to the ability of the non-Federal interest to pay.
(2) Criteria and procedures
The ability of a non-Federal interest to pay shall be determined by the Secretary in accordance with criteria and procedures in effect under paragraph (3) on the day before December 11, 2000; except that such criteria and procedures shall be revised, and new criteria and procedures shall be developed, not later than December 31, 2007, to reflect the requirements of such paragraph (3).
(3) Revision of criteria and procedures
In revising criteria and procedures pursuant to paragraph (2), the Secretary—
(A) shall consider—
(i) per capita income data for the county or counties in which the project is to be located; and
(ii) the per capita non-Federal cost of construction of the project for the county or counties in which the project is to be located; and
(B) may consider additional criteria relating to the non-Federal interest's financial ability to carry out its cost-sharing responsibilities, to the extent that the application of such criteria does not eliminate areas from eligibility for a reduction in the non-Federal share as determined under subparagraph (A).
(4) Non-Federal share
Notwithstanding subsection (a), the Secretary may reduce the requirement that a non-Federal interest make a cash contribution for any project that is determined to be eligible for a reduction in the non-Federal share under criteria and procedures in effect under paragraphs (1), (2), and (3).
(n) Non-Federal contributions
(1) Prohibition on solicitation of excess contributions
The Secretary may not—
(A) solicit contributions from non-Federal interests for costs of constructing authorized water resources projects or measures in excess of the non-Federal share assigned to the appropriate project purposes listed in subsections (a), (b), and (c); or
(B) condition Federal participation in such projects or measures on the receipt of such contributions.
(2) Limitation on statutory construction
Nothing in this subsection shall be construed to affect the Secretary's authority under section 903(c).1
(
References in Text
Section 202 of
This Act, referred to in subsecs. (f) and (h), is
The Flood Control Act of 1946, referred to in subsec. (g)(2)(A), is act July 24, 1946, ch. 596,
The Flood Control Act approved August 18, 1941, referred to in subsec. (g)(2)(C), is act Aug. 18, 1941, ch. 377,
Section 903(c), referred to in subsec. (n)(2), is section 903(c) of
Amendments
2007—Subsec. (m)(2).
Subsec. (n).
2000—Subsec. (m)(1), (2).
Subsec. (m)(3)(B), (C).
1999—Subsec. (b).
Subsec. (b)(2).
Subsec. (d).
Subsec. (d)(2)(A).
1996—Subsecs. (a)(2), (b).
Subsec. (c)(7).
Subsec. (e)(1).
Subsec. (m).
1992—Subsec. (i).
Subsec. (m).
"(1)
"(2)
"(A)
"(B)
"(C)
1990—Subsec. (m).
Effective Date of 1996 Amendment
"(A)
"(B)
"(C)
[Reference to "project cooperation agreement" deemed to be reference to "project partnership agreement", see section 2003(f)(2) of
Continuation of Existing Regulations
Reports to Congress
1 See References in Text note below.
§2214. General credit for flood control
(a) Guidelines
Within one year after November 17, 1986, the Secretary shall issue guidelines to carry out this section, consistent with the principles and guidelines on project formulation. The guidelines shall include criteria for determining whether work carried out by non-Federal interests is compatible with a project for flood control and procedures for making such determinations. The guidelines under this section shall be promulgated after notice in the Federal Register and opportunity for comment.
(b) Analysis of costs and benefits
The guidelines established under subsection (a) shall provide for the Secretary to consider, in analyzing the costs and benefits of a proposed project for flood control, the costs and benefits produced by any flood control work carried out by non-Federal interests that the Secretary determines to be compatible with the project. For purposes of the preceding sentence the Secretary may consider only work carried out after the date which is 5 years before the first obligation of funds for the reconnaissance study for such project. In no case may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, unless otherwise provided in this Act.
(c) Crediting of non-Federal share
The guidelines established under subsection (a) shall provide for crediting the cost of work carried out by the non-Federal interests against the non-Federal share of the cost of an authorized project for flood control as follows:
(1) Work which is carried out after the end of the reconnaissance study and before the submission to Congress of the final report of the Chief of Engineers on the project and which is determined by the Secretary to be compatible with the project shall be included as part of the project and shall be recommended by the Secretary in the final report for credit against the non-Federal share of the cost of the project.
(2) Work which is carried out after submission of the final report of the Chief of Engineers to Congress and which is determined by the Secretary to be compatible with the project shall be considered as part of the project and shall be credited by the Secretary against the non-Federal share of the cost of the project in accordance with the guidelines promulgated pursuant to subsection (a).
In no event may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, unless otherwise provided in this Act.
(d) Procedure for work done before November 17, 1986
The Secretary shall consider, under subsections (b) and (c), work carried out before November 17, 1986, by non-Federal interests on a project for flood control, if the non-Federal interests apply to the Secretary for consideration of such work not later than March 31, 1987. The Secretary shall make determinations under subsections (b) and (c) with respect to such work not later than 6 months after guidelines are issued under subsection (a).
(e) Procedure for work done after November 17, 1986
The Secretary shall consider work carried out after November 17, 1986, by non-Federal interests on a project for flood control under subsections (b) and (c) in accordance with the guidelines issued under subsection (a). The guidelines shall require prior approval by the Secretary of any flood control work carried out after November 17, 1986, in order to be considered under this section, taking into account the economic and environmental feasibility of the project.
(f) Limitation not applicable
Any flood control work included as part of the non-Federal share of the cost of a project under this section shall not be subject to the limitation contained in the last sentence of
(g) Cash contribution not affected
Nothing in this section affects the requirement of
(
References in Text
This Act, referred to in subsecs. (b) and (c), is
§2215. Feasibility studies; planning, engineering, and design
(a) Feasibility studies
(1) Cost sharing
(A) In general
The Secretary shall not initiate any feasibility study for a water resources project after November 17, 1986, until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost of the study.
(B) Payment of cost share during period of study
During the period of the study, the non-Federal share of the cost of the study payable under subparagraph (A) shall be 50 percent of the sum of—
(i) the cost estimate for the study as contained in the feasibility cost-sharing agreement; and
(ii) any excess of the cost of the study over the cost estimate if the excess results from—
(I) a change in Federal law; or
(II) a change in the scope of the study requested by the non-Federal interests.
(C) Payment of cost share on authorization of project or termination of study
(i) Project timely authorized
Except as otherwise agreed to by the Secretary and the non-Federal interests and subject to clause (ii), the non-Federal share of any excess of the cost of the study over the cost estimate (excluding any excess cost described in subparagraph (B)(ii)) shall be payable on the date on which the Secretary and the non-Federal interests enter into an agreement pursuant to
(ii) Project not timely authorized
If the project that is the subject of the study is not authorized by the date that is 5 years after the completion of the final report of the Chief of Engineers concerning the study or the date that is 2 years after the termination of the study, the non-Federal share of any excess of the cost of the study over the cost estimate (excluding any excess cost described in subparagraph (B)(ii)) shall be payable to the United States on that date.
(D) Amendment of cost estimate
The cost estimate referred to in subparagraph (B)(i) may be amended only by agreement of the Secretary and the non-Federal interests.
(E) In-kind contributions
The non-Federal share required under this paragraph may be satisfied by the provision of services, materials, supplies, or other in-kind services necessary to prepare the feasibility report.
(2) Applicability
This subsection shall not apply to any water resources study primarily designed for the purposes of navigational improvements in the nature of dams, locks, and channels on the Nation's system of inland waterways.
(3) Detailed project reports
The requirements of this subsection that apply to a feasibility study also shall apply to a study that results in a detailed project report, except that—
(A) the first $100,000 of the costs of a study that results in a detailed project report shall be a Federal expense; and
(B) paragraph (1)(C)(ii) shall not apply to such a study.
(b) Planning and engineering
The Secretary shall not initiate any planning or engineering for a water resources project until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost of the planning and engineering during the period of the planning and engineering. Costs of planning and engineering of projects for which non-Federal interests contributed 50 percent of the cost of the feasibility study shall be treated as costs of construction.
(c) Design
Costs of design of a water resources project shall be shared in the same percentage as the purposes of such project.
(d) Definitions
In this section, the following definitions apply:
(1) Detailed project report
The term "detailed project report" means a report for a project not specifically authorized by Congress in law or otherwise that determines the feasibility of the project with a level of detail appropriate to the scope and complexity of the recommended solution and sufficient to proceed directly to the preparation of contract plans and specifications. The term includes any associated environmental impact statement and mitigation plan. For a project for which the Federal cost does not exceed $1,000,000, the term includes a planning and design analysis document.
(2) Feasibility study
The term "feasibility study" means a study that results in a feasibility report under
(
References in Text
The Water Resources Development Act of 2000, referred to in subsec. (d)(2), is
Amendments
2007—Subsec. (a)(3).
Subsec. (b).
Subsec. (d).
2000—Subsec. (a)(1)(E).
1996—Subsec. (a)(1).
Subsec. (a)(2).
1990—Subsec. (b).
Effective Date of 1996 Amendment
No Requirement of Reimbursement
§2216. Rate of interest
Whenever a non-Federal interest is required or elects to repay an amount under this Act over a period of time, the amount to be repaid shall include interest at a rate determined by the Secretary of the Treasury, taking into consideration the average market yields on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the reimbursement period, during the month preceding the fiscal year in which costs for the construction of the project are first incurred (or in the case of recalculation the fiscal year in which the recalculation is made), plus a premium of one-eighth of one percentage point for transaction costs; except that such rates for hydroelectric power shall be in accordance with existing law.
(
References in Text
This Act, referred to in text, is
§2217. Limitation on applicability of certain provisions in reports
If any provision in any report designated by this Act recommends that a State contribute in cash 5 percent of the construction costs allocated to non-vendible project purposes and 10 percent of the construction costs allocated to vendible project purposes, such provision shall not apply to the project recommended in such report.
(
References in Text
This Act, referred to in text, is
§2218. General applicability of cost sharing
Unless otherwise specified, the cost sharing provisions of this subchapter shall apply to all projects in this Act. The Federal share of any cost of a project authorized by this Act for which cost a Federal share is not established in this subchapter, shall be the share of such cost otherwise provided by law.
(
References in Text
This Act, referred to in text, is
§2219. Definitions
For purposes of this subchapter, terms shall have the meanings given by
(
§2220. Rivers and harbors and other waterways projects for benefit of navigation, flood control, hurricane protection, beach erosion control, and other purposes
(a) Congressional declaration of policy; purchase of indebtedness and loans to local interests to meet contribution requirements
In the prosecution of projects for rivers and harbors and other waterways for the benefit of navigation, the control of destructive flood waters, hurricane protection, beach erosion control, and for other purposes, authorized to be prosecuted under the direction of the Secretary of the Army under the supervision of the Chief of Engineers in accordance with plans adopted and authorized by the Congress, it is hereby declared to be the policy of the Congress, that whenever such projects are located wholly or partially within an area which is eligible for financial assistance under the Public Works and Economic Development Act of 1965 [
(b) Authorization of appropriations
There is hereby authorized to be appropriated to carry out this section, not to exceed $10,000,000 per fiscal year for the fiscal year ending June 30, 1966, and for each fiscal year thereafter through and including the fiscal year ending June 30, 1970.
(
References in Text
The Public Works and Economic Development Act of 1965, referred to in subsec. (a), is
Codification
Section was formerly classified to
Section was not enacted as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2221. Cost limitations on projects
Beginning in fiscal year 2006 and thereafter, agreements proposed for execution by the Assistant Secretary of the Army for Civil Works or the United States Army Corps of Engineers after November 19, 2005, pursuant to
(
References in Text
The Civil Functions Appropriations Act, 1936,
Codification
Section was enacted as part of the Energy and Water Development Appropriations Act, 2006, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
1 See References in Text note below.
§2222. Use of other Federal funds
The non-Federal interest for a water resources study or project may use, and the Secretary shall accept, funds provided by a Federal agency under any other Federal program, to satisfy, in whole or in part, the non-Federal share of the cost of the study or project if the Federal agency that provides the funds determines that the funds are authorized to be used to carry out the study or project.
(
Codification
Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2223. Transfer of excess credit
(a) Application of credit
(1) In general
Subject to subsection (b), the Secretary may apply credit for in-kind contributions provided by a non-Federal interest that are in excess of the required non-Federal cost share for a water resources development study or project toward the required non-Federal cost share for a different water resources development study or project.
(2) Application prior to completion of project
On request of a non-Federal interest, the credit described in paragraph (1) may be applied prior to completion of a study or project, if the credit amount is verified by the Secretary.
(b) Restrictions
(1) In general
Except for subsection (a)(4)(D)(i) of that section, the requirements of
(2) Conditions
Credit in excess of the non-Federal share for a study or project may be approved under this section only if—
(A) the non-Federal interest submits a comprehensive plan to the Secretary that identifies—
(i) the studies and projects for which the non-Federal interest intends to provide in-kind contributions for credit that are in excess of the non-Federal cost share for the study or project; and
(ii) the authorized studies and projects to which that excess credit would be applied;
(B) the Secretary approves the comprehensive plan; and
(C) the total amount of credit does not exceed the total non-Federal share for the studies and projects in the approved comprehensive plan.
(c) Additional criteria
In evaluating a request to apply credit in excess of the non-Federal share for a study or project toward a different study or project, the Secretary shall consider whether applying that credit will—
(1) help to expedite the completion of a project or group of projects;
(2) reduce costs to the Federal Government; and
(3) aid the completion of a project that provides significant flood risk reduction or environmental benefits.
(d) Termination of authority
The authority provided in this section shall terminate 10 years after June 10, 2014.
(e) Report
(1) Deadlines
(A) In general
Not later than 2 years after June 10, 2014, and once every 2 years thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available an interim report on the use of the authority under this section.
(B) Final report
Not later than 10 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 final report on the use of the authority under this section.
(2) Inclusions
The reports described in paragraph (1) shall include—
(A) a description of the use of the authority under this section during the reporting period;
(B) an assessment of the impact of the authority under this section on the time required to complete projects; and
(C) an assessment of the impact of the authority under this section on other water resources projects.
(
References in Text
Section 1018(a), referred to in subsec. (b)(1), means section 1018(a) of
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsec. (a).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2224. Crediting authority for federally authorized navigation projects
A non-Federal interest may carry out operation and maintenance activities for an authorized navigation project, subject to the condition that the non-Federal interest complies with all Federal laws and regulations applicable to such operation and maintenance activities, and may receive credit for the costs incurred by the non-Federal interest in carrying out such activities towards the share of construction costs of that non-Federal interest for another element of the same project or another authorized navigation project, except that in no instance may such credit exceed 20 percent of the total costs associated with construction of the general navigation features of the project for which such credit may be applied pursuant to this section.
(
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2225. Credit or reimbursement
(a) Requests for credits
With respect to an authorized flood damage reduction project, or separable element thereof, that has been constructed by a non-Federal interest under section 701b–13 1 of this title, or an authorized coastal navigation project that has been constructed by the Corps of Engineers pursuant to
(b) Application of credits
At the request of the non-Federal interest, the Secretary may apply all or a portion of such credit to the share of the cost of the non-Federal interest of carrying out other flood damage reduction and coastal navigation projects or studies.
(c) Application of reimbursement
At the request of the non-Federal interest, the Secretary may apply such funds, subject to the availability of appropriations, equal to the share of the cost of the non-Federal interest of carrying out other flood damage reduction and coastal navigation projects or studies.
(
References in Text
Amendments
2018—
2016—Subsec. (a).
Subsec. (b).
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 See References in Text note below.
§2226. Water resources projects on Federal land
(a) In general
Subject to subsection (b), the Secretary may carry out an authorized water resources development project on Federal land that is under the administrative jurisdiction of another Federal agency where the cost of the acquisition of such Federal land has been paid for by the non-Federal interest for the project.
(b) MOU required
The Secretary may carry out a project pursuant to subsection (a) only after the non-Federal interest has entered into a memorandum of understanding with the Federal agency that includes such terms and conditions as the Secretary determines to be necessary.
(c) Applicability
Nothing in this section alters any non-Federal cost-sharing requirements for the project.
(
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
§2227. Clarification of impacts to other Federal facilities
In any case where the modification or construction of a water resources development project carried out by the Secretary adversely impacts other Federal facilities, the Secretary may accept from other Federal agencies such funds as may be necessary to address the adverse impact, including by removing, relocating, or reconstructing those facilities.
(
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
SUBCHAPTER II—HARBOR DEVELOPMENT
§2231. Study of water resources development projects by non-Federal interests
(a) Submission to Secretary
(1) In general
A non-Federal interest may undertake a federally authorized feasibility study of a proposed water resources development project and submit the study to the Secretary.
(2) Guidelines
To assist non-Federal interests, the Secretary, as soon as practicable, shall issue guidelines for feasibility studies of water resources development projects to provide sufficient information for the formulation of the studies.
(b) Review by Secretary
The Secretary shall review each feasibility study received under subsection (a)(1) for the purpose of determining whether or not the study, and the process under which the study was developed, each comply with Federal laws and regulations applicable to feasibility studies of water resources development projects.
(c) Submission to Congress
(1) Review and submission of studies to Congress
Not later than 180 days after the date of receipt of a feasibility study of a project under subsection (a)(1), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes—
(A) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
(B) any recommendations the Secretary may have concerning the plan or design of the project; and
(C) any conditions the Secretary may require for construction of the project.
(2) Limitation
The completion of the review by the Secretary of a feasibility study that has been submitted under subsection (a)(1) may not be delayed as a result of consideration being given to changes in policy or priority with respect to project consideration.
(d) Credit
If a project for which a feasibility study has been submitted under subsection (a)(1) is authorized by a Federal law enacted after the date of the submission to Congress under subsection (c), the Secretary shall credit toward the non-Federal share of the cost of construction of the project an amount equal to the portion of the cost of developing the study that would have been the responsibility of the United States if the study had been developed by the Secretary.
(e) Review and technical assistance
(1) Review
The Secretary may accept and expend funds provided by non-Federal interests to undertake reviews, inspections, certifications, and other activities that are the responsibility of the Secretary in carrying out this section.
(2) Technical assistance
At the request of a non-Federal interest, the Secretary shall provide to the non-Federal interest technical assistance relating to any aspect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assistance.
(3) Limitation
Funds provided by non-Federal interests under this subsection shall not be eligible for credit under subsection (d) or reimbursement.
(4) Impartial decisionmaking
In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, either substantively or procedurally.
(5) Savings provision
The provision of technical assistance by the Secretary under paragraph (2)—
(A) shall not be considered to be an approval or endorsement of the feasibility study; and
(B) shall not affect the responsibilities of the Secretary under subsections (b) and (c).
(
Amendments
2018—Subsec. (a)(1).
Subsec. (c).
"(1) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
"(2) any recommendations the Secretary may have concerning the plan or design of the project; and
"(3) any conditions the Secretary may require for construction of the project."
Subsec. (e).
2016—Subsec. (e).
2014—
Short Title
For short title of title II of
§2232. Construction of water resources development projects by non-Federal interests
(a) Water resources development project defined
In this section, the term "water resources development project" means a project recommendation that results from—
(1) a feasibility report, as such term is defined in section 2282d(f) 1 of this title;
(2) a completed feasibility study developed under
(3) a final feasibility study for water resources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Secretary.
(b) Authority
(1) In general
A non-Federal interest may carry out a federally authorized water resources development project, or separable element thereof—
(A) in accordance with a plan approved by the Secretary for the project or separable element; and
(B) subject to any conditions that the Secretary may require, including any conditions specified under
(2) Conditions
Before carrying out a water resources development project, or separable element thereof, under this section, a non-Federal interest shall—
(A) obtain any permit or approval required in connection with the project or separable element under Federal or State law, except as provided in paragraph (3); and
(B) ensure that a final environmental impact statement or environmental assessment, as appropriate, for the project or separable element has been filed.
(3) Permit exception
(A) In general
For a project described in subsection (a)(1) or subsection (a)(3), or a separable element thereof, with respect to which a written agreement described in subparagraph (B) has been entered into, a non-Federal interest that carries out a project under this section shall not be required to obtain any Federal permits or approvals that would not be required if the Secretary carried out the project or separable element unless significant new circumstances or information relevant to environmental concerns or compliance have arisen since development of the project recommendation.
(B) Written agreement
For purposes of this paragraph, a written agreement shall provide that the non-Federal interest shall comply with the same legal and technical requirements that would apply if the project or separable element were carried out by the Secretary, including all mitigation required to offset environmental impacts of the project or separable element as determined by the Secretary.
(C) Certifications
Notwithstanding subparagraph (A), if a non-Federal interest carrying out a project under this section would, in the absence of a written agreement entered into under this paragraph, be required to obtain a certification from a State under Federal law to carry out the project, such certification shall still be required if a written agreement is entered into with respect to the project under this paragraph.
(4) Data sharing
(A) In general
If a non-Federal interest for a water resources development project begins to carry out that water resources development project under this section, the non-Federal interest may request that the Secretary transfer to the non-Federal interest all relevant data and documentation under the control of the Secretary with respect to that water resources development project.
(B) Deadline
Except as provided in subparagraph (C), the Secretary shall transfer the data and documentation requested by a non-Federal interest under subparagraph (A) not later than the date that is 90 days after the date on which the non-Federal interest so requests such data and documentation.
(C) Limitation
Nothing in this paragraph obligates the Secretary to share any data or documentation that the Secretary considers to be proprietary information.
(c) Studies and engineering
(1) In general
When requested by an appropriate non-Federal interest, the Secretary shall undertake all necessary studies, engineering, and technical assistance on construction for any project to be undertaken under subsection (b), and provide technical assistance in obtaining all necessary permits for the construction, if the non-Federal interest contracts with the Secretary to furnish the United States funds for the studies, engineering, or technical assistance on construction in the period during which the studies, engineering, or technical assistance on construction are being conducted.
(2) No waiver
Nothing in this section may be construed to waive any requirement of
(3) Limitation
Funds provided by non-Federal interests under this subsection shall not be eligible for credit or reimbursement under subsection (d).
(4) Impartial decisionmaking
In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, either substantively or procedurally.
(d) Credit or reimbursement
(1) General rule
Subject to paragraph (3), a project or separable element of a project carried out by a non-Federal interest under this section shall be eligible for credit or reimbursement for the Federal share of work carried out on a project or separable element of a project if—
(A) before initiation of construction of the project or separable element—
(i) the Secretary approves the plans for construction of the project or separable element of the project by the non-Federal interest;
(ii) the Secretary determines, before approval of the plans, that the project or separable element of the project is feasible; and
(iii) the non-Federal interest enters into a written agreement with the Secretary under
(B) the Secretary determines that all Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified under subsection (b)(1)(B), were complied with by the non-Federal interest during construction of the project or separable element of the project.
(2) Application of credit
The Secretary may apply credit toward—
(A) the non-Federal share of authorized separable elements of the same project; or
(B) subject to the requirements of this section and
(3) Requirements
The Secretary may only apply credit or provide reimbursement under paragraph (1) if—
(A) Congress has authorized construction of the project or separable element of the project;
(B) the Secretary certifies that the project has been constructed in accordance with—
(i) all applicable permits or approvals; and
(ii) this section; and
(C) in the case of reimbursement, appropriations are provided by Congress for such purpose.
(4) Monitoring
The Secretary shall regularly monitor and audit any water resources development project, or separable element of a water resources development project, constructed by a non-Federal interest under this section to ensure that—
(A) the construction is carried out in compliance with the requirements of this section; and
(B) the costs of the construction are reasonable.
(5) Discrete segments
(A) In general
The Secretary may authorize credit or reimbursement under this subsection for carrying out a discrete segment of a federally authorized water resources development project, or separable element thereof, before final completion of the project or separable element if—
(i) except as provided in clause (ii), the Secretary determines that the discrete segment satisfies the requirements of paragraphs (1) through (4) in the same manner as the project or separable element; and
(ii) notwithstanding paragraph (1)(A)(ii), the Secretary determines, before the approval of the plans under paragraph (1)(A)(i), that the discrete segment is technically feasible and environmentally acceptable.
(B) Determination
Credit or reimbursement may not be made available to a non-Federal interest pursuant to this paragraph until the Secretary determines that—
(i) the construction of the discrete segment for which credit or reimbursement is requested is complete; and
(ii) the construction is consistent with the authorization of the applicable water resources development project, or separable element thereof, and the plans approved under paragraph (1)(A)(i).
(C) Written agreement
(i) In general
As part of the written agreement required under paragraph (1)(A)(iii), a non-Federal interest to be eligible for credit or reimbursement under this paragraph shall—
(I) identify any discrete segment that the non-Federal interest may carry out; and
(II) agree to the completion of the water resources development project, or separable element thereof, with respect to which the discrete segment is a part and establish a timeframe for such completion.
(ii) Remittance
If a non-Federal interest fails to complete a water resources development project, or separable element thereof, that it agreed to complete under clause (i)(II), the non-Federal interest shall remit any reimbursements received under this paragraph for a discrete segment of such project or separable element.
(D) Discrete segment defined
In this paragraph, the term "discrete segment" means a physical portion of a water resources development project to be carried out, or separable element thereof—
(i) described by a non-Federal interest in a written agreement required under paragraph (1)(A)(iii); and
(ii) that the non-Federal interest can operate and maintain, independently and without creating a hazard, in advance of final completion of the water resources development project, or separable element thereof.
(e) Notification of committees
If a non-Federal interest notifies the Secretary that the non-Federal interest intends to carry out a project, or separable element thereof, under this section, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives concerning the intent of the non-Federal interest.
(f) Operation and maintenance
Whenever a non-Federal interest carries out improvements to a federally authorized harbor or inland harbor, the Secretary shall be responsible for operation and maintenance in accordance with
(1) before construction of the improvements—
(A) the Secretary determines that the improvements are feasible and consistent with the purposes of this subchapter; and
(B) the Secretary and the non-Federal interest execute a written agreement relating to operation and maintenance of the improvements;
(2) the Secretary certifies that the project or separable element of the project is constructed in accordance with applicable permits and appropriate engineering and design standards; and
(3) the Secretary does not find that the project or separable element is no longer feasible.
(
References in Text
Amendments
2018—Subsec. (b)(1).
Subsec. (b)(2)(A).
Subsec. (b)(3), (4).
Subsec. (c).
Subsec. (d)(3)(C).
Subsec. (d)(5).
Subsec. (d)(5)(A).
Subsec. (d)(5)(D).
2016—Subsec. (d)(5).
2014—
1990—Subsec. (c).
Subsec. (e).
Subsec. (e)(1).
Subsec. (f).
Subsec. (g).
Savings Provision
"(1) Section 204 of the Water Resources Development Act of 1986 (
"(2) Section 206 of the Water Resources Development Act of 1992 (
"(3) Section 211 of the Water Resources Development Act of 1996 (
Preconstruction Engineering Design Demonstration Program
"(a)
"(b)
"(c)
"(1) the project shall conform to the feasibility study and the environmental impact statement approved by the Secretary; and
"(2) the Secretary and the non-Federal sponsor shall jointly agree to the construction design of the project.
"(d)
"(e)
"(f)
"(1) section 906 of the Water Resources Development Act of 1986 (
"(2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (
Navigation Safety
Operation and Maintenance of Certain Projects
Demonstration of Construction of Federal Project by Non-Federal Interests
1 See References in Text note below.
§2233. Coordination and scheduling of Federal, State, and local actions
(a) Notice of intent
The Secretary, on request from an appropriate non-Federal interest in the form of a written notice of intent to construct a navigation project for a harbor or inland harbor under
(b) Procedural requirements
Within 15 days after receipt of notice under subsection (a), the Secretary shall publish such notice in the Federal Register. The Secretary also shall provide written notification of the receipt of a notice under subsection (a) to all State and local agencies that may be required to issue permits for the construction of the project or related activities. The Secretary shall solicit the cooperation of those agencies and request their entry into a memorandum of agreement described in subsection (c). Within 30 days after publication of the notice in the Federal Register, State and local agencies that intend to enter into the memorandum of agreement shall notify the Secretary of their intent in writing.
(c) Scheduling agreement
Within 90 days after receipt of notice under subsection (a), the Secretary of the Interior, the Secretary of Commerce, the Administrator of the Environmental Protection Agency, and any State or local agencies that have notified the Secretary under subsection (b) shall enter into an agreement with the Secretary establishing a schedule of decisionmaking for approval of the project and permits associated with it and with related activities. Such schedule may not exceed two and one-half years from the date of the agreement.
(d) Contents of agreement
The agreement entered into under subsection (c), to the extent practicable, shall consolidate hearing and comment periods, procedures for data collection and report preparation, and the environmental review and permitting processes associated with the project and related activities. The agreement shall detail, to the extent possible, the non-Federal interest's responsibilities for data development and information that may be necessary to process each permit, including a schedule when the information and data will be provided to the appropriate Federal, State, or local agency.
(e) Preliminary decision
The agreement shall include a date by which the Secretary, taking into consideration the views of all affected Federal agencies, shall provide to the non-Federal interest in writing a preliminary determination whether the project and Federal permits associated with it are reasonably likely to receive approval.
(f) Revision of agreement
The Secretary may revise the agreement once to extend the schedule to allow the non-Federal interest the minimum amount of additional time necessary to revise its original application to meet the objections of a Federal, State, or local agency which is a party to the agreement.
(g) Progress reports
Six months before the final date of the schedule, the Secretary shall provide to Congress a written progress report for each navigation project for a harbor or inland harbor subject to this section. The Secretary shall transmit the report to the Committee on Public Works and Transportation of the House of Representatives and the Committee on Environment and Public Works of the Senate. The report shall summarize all work completed under the agreement and shall include a detailed work program that will assure completion of all remaining work under the agreement.
(h) Final decision
Not later than the final day of the schedule, the Secretary shall notify the non-Federal interest of the final decision on the project and whether the permit or permits have been issued.
(i) Report on timesavings methods
Not later than one year after November 17, 1986, the Secretary shall prepare and transmit to Congress a report estimating the time required for the issuance of all Federal, State, and local permits for the construction of navigation projects for harbors or inland harbors and associated activities. The Secretary shall include in that report recommendations for further reducing the amount of time required for the issuance of those permits, including any proposed changes in existing law.
(
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2234. Nonapplicability to Saint Lawrence Seaway
(
§2235. Construction in usable increments
Any navigation project for a harbor or inland harbor authorized by this subchapter or any other provision of law enacted before, on, or after November 17, 1986, may be constructed in usable increments.
(
§2236. Port or harbor dues
(a) Consent of Congress
Subject to the following conditions, a non-Federal interest may levy port or harbor dues (in the form of tonnage duties or fees) on a vessel engaged in trade entering or departing from a harbor and on cargo loaded on or unloaded from that vessel under clauses 2 and 3 of section 10, and under clause 3 of section 8, of Article 1 of the Constitution:
(1) Purposes
Port or harbor dues may be levied only in conjunction with a harbor navigation project whose construction is complete (including a usable increment of the project) and for the following purposes and in amounts not to exceed those necessary to carry out those purposes:
(A)(i) to finance the non-Federal share of construction and operation and maintenance costs of a navigation project for a harbor under the requirements of
(ii) to finance the cost of construction and operation and maintenance of a navigation project for a harbor under
(B) provide emergency response services in the harbor, including contingency planning, necessary personnel training, and the procurement of equipment and facilities.
(2) Limitation on port or harbor dues for emergency service
Port or harbor dues may not be levied for the purposes described in paragraph (1)(B) of this subsection after the dues cease to be levied for the purposes described in paragraph (1)(A) of this subsection.
(3) General limitations
(A) Port or harbor dues may not be levied under this section in conjunction with a deepening feature of a navigation improvement project on any vessel if that vessel, based on its design draft, could have utilized the project at mean low water before construction. In the case of project features which solely—
(i) widen channels or harbors,
(ii) create or enlarge bend easings, turning basins or anchorage areas, or provide protected areas, or
(iii) remove obstructions to navigation,
only vessels at least comparable in size to those used to justify these features may be charged under this section.
(B) In developing port or harbor dues that may be charged under this section on vessels for project features constructed under this subchapter, the non-Federal interest may consider such criteria as: elapsed time of passage, safety of passage, vessel economy of scale, under keel clearance, vessel draft, vessel squat, vessel speed, sinkage, and trim.
(C) Port or harbor dues authorized by this section shall not be imposed on—
(i) vessels owned and operated by the United States Government, a foreign country, a State, or a political subdivision of a country or State, unless engaged in commercial services;
(ii) towing vessels, vessels engaged in dredging activities, or vessels engaged in intraport movements; or
(iii) vessels with design drafts of 20 feet or less when utilizing general cargo and deep-draft navigation projects.
(4) Formulation of port or harbor dues
Port or harbor dues may be levied only on a vessel entering or departing from a harbor and its cargo on a fair and equitable basis. In formulating port and harbor dues, the non-Federal interest shall consider—
(A) the direct and indirect cost of construction, operations, and maintenance, and providing the facilities and services under paragraph (1) of this subsection;
(B) the value of those facilities and services to the vessel and cargo;
(C) the public policy or interest served; and
(D) any other pertinent factors.
(5) Notice and hearing
(A) Before the initial levy of or subsequent modification to port or harbor dues under this section, a non-Federal interest shall transmit to the Secretary—
(i) the text of the proposed law, regulation, or ordinance that would establish the port or harbor dues, including provisions for their administration, collection, and enforcement;
(ii) the name, address, and telephone number of an official to whom comments on and requests for further information on the proposal are to be directed;
(iii) the date by which comments on the proposal are due and a date for a public hearing on the proposal at which any interested party may present a statement; however, the non-Federal interest may not set a hearing date earlier than 45 days after the date of publication of the notice in the Federal Register required by subparagraph (B) of this paragraph or set a deadline for receipt of comments earlier than 60 days after the date of publication; and
(iv) a written statement signed by an appropriate official that the non-Federal interest agrees to be governed by the provisions of this section.
(B) On receiving from a non-Federal interest the information required by subparagraph (A) of this paragraph, the Secretary shall transmit the material required by clauses (i) through (iii) of subparagraph (A) of this paragraph to the Federal Register for publication.
(C) Port or harbor dues may be imposed by a non-Federal interest only after meeting the conditions of this paragraph.
(6) Requirements on non-Federal interest
A non-Federal interest shall—
(A) file a schedule of any port or harbor dues levied under this subsection with the Secretary and the Federal Maritime Commission, which the Commission shall make available for public inspection;
(B) provide to the Comptroller General of the United States on request of the Comptroller General any records or other evidence that the Comptroller General considers to be necessary and appropriate to enable the Comptroller General to carry out the audit required under subsection (b) 1 of this section;
(C) designate an officer or authorized representative, including the Secretary of the Treasury acting on a cost-reimbursable basis, to receive tonnage certificates and cargo manifests from vessels which may be subject to the levy of port or harbor dues, export declarations from shippers, consignors, and terminal operators, and such other documents as the non-Federal interest may by law, regulation, or ordinance require for the imposition, computation, and collection of port or harbor dues; and
(D) consent expressly to the exclusive exercise of Federal jurisdiction under subsection (c) 1 of this section.
(b) Jurisdiction
(1) The district court of the United States for the district in which is located a non-Federal interest that levies port or harbor dues under this section has original and exclusive jurisdiction over any matter arising out of or concerning, the imposition, computation, collection, and enforcement of port or harbor dues by a non-Federal interest under this section.
(2) Any person who suffers legal wrong or is adversely affected or aggrieved by the imposition by a non-Federal interest of a proposed scheme or schedule of port or harbor dues under this section may, not later than 180 days after the date of hearing under subsection (a)(5)(A)(iii) of this section, commence an action to seek judicial review of that proposed scheme or schedule in the appropriate district court under paragraph (1).
(3) On petition of the Attorney General or any other party, that district court may—
(A) grant appropriate injunctive relief to restrain an action by that non-Federal interest violating the conditions of consent in subsection (a) of this section;
(B) order the refund of any port or harbor dues not lawfully collected; and
(C) grant other appropriate relief or remedy.
(c) Collection of duties
(1) 2 Delivery of certificate and manifest
(A) Upon arrival of vessel
Upon the arrival of a vessel in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section, the master of that vessel shall, within forty-eight hours after arrival and before any cargo is unloaded from that vessel, deliver to the appropriate authorized representative appointed under subsection (a)(6)(C) of this section a tonnage certificate for the vessel and a manifest of the cargo aboard that vessel or, if the vessel is in ballast, a declaration to that effect.
(B) Before departure of vessel
The shipper, consignor, or terminal operator having custody of any cargo to be loaded on board a vessel while the vessel is in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section shall, within forty-eight hours before departure of that vessel, deliver to the appropriate authorized representative appointed under subsection (a)(6)(C) of this section an export declaration specifying the cargo to be loaded on board that vessel.
(d) Enforcement
At the request of an authorized representative referred to in subsection (a)(6)(C) of this section, the Secretary of the Treasury may:
(1) withhold the clearance required by
(2) assess a penalty or initiate a forfeiture of the cargo in the same manner and under the same procedures as are applicable for failure to pay customs duties under the Tariff Act of 1930 (
(e) Maritime Lien
Port or harbor dues levied under this section against a vessel constitute a maritime lien against the vessel and port or harbor dues levied against cargo constitute a lien against the cargo that may be recovered in an action in the district court of the United States for the district in which the vessel or cargo is found.
(
References in Text
Subsection (b) of this section, referred to in subsec. (a)(6)(B), which related to audits, was struck out by
Subsection (c) of this section, referred to in subsec. (a)(6)(D), which related to jurisdiction, was redesignated as subsec. (b) by
The Tariff Act of 1930, referred to in subsec. (d)(2), is act June 17, 1930, ch. 497,
Codification
In subsec. (d)(1), "
Amendments
1995—Subsecs. (b) to (f).
"(1) carry out periodic audits of the operations of non-Federal interests that elect to levy port or harbor dues under this section to determine if the conditions of subsection (a) of this section are being complied with;
"(2) submit to each House of the Congress a written report containing the findings resulting from each audit; and
"(3) make any recommendations that the Comptroller General considers appropriate regarding the compliance of those non-Federal interests with the requirements of this section."
1 See References in Text note below.
2 So in original. No par. (2) has been enacted.
§2237. Information for national security
Any non-Federal interest shall provide the United States the information necessary for military readiness planning and harbor, inland harbor, and national security, including information necessary to obtain national security clearances for individuals employed in critical harbor and inland harbor positions.
(
§2238. Authorization of appropriations
(a) Trust fund
There are authorized to be appropriated out of the Harbor Maintenance Trust Fund, established by
(1) 100 percent of the eligible operations and maintenance costs of those portions of the Saint Lawrence Seaway operated and maintained by the Saint Lawrence Seaway Development Corporation for such fiscal year; and
(2) up to 100 percent of the eligible operations and maintenance costs assigned to commercial navigation of all harbors and inland harbors within the United States.
(b) General fund
There are authorized to be appropriated out of the general fund of the Treasury of the United States for each fiscal year such sums as may be necessary to pay the balance of all eligible operations and maintenance costs not provided by payments from the Harbor Maintenance Trust Fund under this section.
(c) Operation and maintenance of harbor projects
(1) In general
To the maximum extent practicable, the Secretary shall make expenditures to pay for operation and maintenance costs of the harbors and inland harbors referred to in subsection (a)(2), including expenditures of funds appropriated from the Harbor Maintenance Trust Fund, based on an equitable allocation of funds among all such harbors and inland harbors.
(2) Criteria
(A) In general
In determining an equitable allocation of funds under paragraph (1), the Secretary shall—
(i) consider the information obtained in the assessment conducted under subsection (e);
(ii) consider the national and regional significance of harbor operations and maintenance; and
(iii) as appropriate, consider national security and military readiness needs.
(B) Limitation
The Secretary shall not allocate funds under paragraph (1) based solely on the tonnage transiting through a harbor.
(3) Emerging harbor projects
Notwithstanding any other provision of this subsection, in making expenditures under paragraph (1) for each fiscal year, the Secretary shall allocate for operation and maintenance costs of emerging harbor projects an amount that is not less than 10 percent of the funds made available under this section for fiscal year 2012 to pay the costs described in subsection (a)(2).
(4) Management of Great Lakes Navigation System
To sustain effective and efficient operation and maintenance of the Great Lakes Navigation System, including any navigation feature in the Great Lakes that is a Federal responsibility with respect to operation and maintenance, the Secretary shall manage all of the individually authorized projects in the Great Lakes Navigation System as components of a single, comprehensive system, recognizing the interdependence of the projects.
(d) Prioritization
(1) Priority
(A) In general
For each fiscal year, if priority funds are available, the Secretary shall use at least 10 percent of such funds for emerging harbor projects.
(B) Additional considerations
For each fiscal year, of the priority funds available, the Secretary shall use—
(i) not less than 5 percent of such funds for underserved harbor projects; and
(ii) not less than 10 percent of such funds for projects that are located within the Great Lakes Navigation System.
(C) Underserved harbors
In determining which underserved harbor projects shall receive funds under this paragraph, the Secretary shall consider—
(i) the total quantity of commerce supported by the water body on which the project is located; and
(ii) the minimum width and depth that—
(I) would be necessary at the underserved harbor project to provide sufficient clearance for fully loaded commercial vessels using the underserved harbor project to maneuver safely; and
(II) does not exceed the constructed width and depth of the authorized navigation project.
(2) Expanded uses
(A) Definition of eligible harbor or inland harbor defined
In this paragraph, the term "eligible harbor or inland harbor" means a harbor or inland harbor at which the total amount of harbor maintenance taxes collected in the immediately preceding 3 fiscal years exceeds the value of the work carried out for the harbor or inland harbor using amounts from the Harbor Maintenance Trust Fund during those 3 fiscal years.
(B) Use of expanded uses funds
(i) Fiscal years 2015 through 2024
For each of fiscal years 2015 through 2024, of the priority funds available, the Secretary shall use not less than 10 percent of such funds for expanded uses carried out at an eligible harbor or inland harbor.
(ii) Subsequent fiscal years
For fiscal year 2025 and each fiscal year thereafter, the Secretary shall use not less than 10 percent of the priority funds available for expanded uses carried out at an eligible harbor or inland harbor.
(C) Prioritization
In allocating funds under this paragraph, the Secretary shall give priority to projects at eligible harbors or inland harbors for which the difference, calculated in dollars, is greatest between—
(i) the total amount of funding made available for projects at that eligible harbor or inland harbor from the Harbor Maintenance Trust Fund in the immediately preceding 3 fiscal years; and
(ii) the total amount of harbor maintenance taxes collected at that harbor or inland harbor in the immediately preceding 3 fiscal years.
(3) Remaining funds
(A) In general
For each of fiscal years 2015 through 2024, if after fully funding all projects eligible for funding under paragraphs (1)(B) and (2)(B)(i), priority funds made available under those paragraphs remain unobligated, the Secretary shall use those remaining funds to pay for operation and maintenance costs of any harbor or inland harbor referred to in subsection (a)(2) based on an equitable allocation of those funds among the harbors and inland harbors.
(B) Criteria
In determining an equitable allocation of funds under subparagraph (A), the Secretary shall—
(i) use the criteria specified in subsection (c)(2)(A); and
(ii) make amounts available in accordance with the requirements of paragraph (1)(A).
(4) Emergency expenditures
Nothing in this subsection prohibits the Secretary from making an expenditure to pay for the operation and maintenance costs of a specific harbor or inland harbor, including the transfer of funding from the operation and maintenance of a separate project, if—
(A) the Secretary determines that the action is necessary to address the navigation needs of a harbor or inland harbor where safe navigation has been severely restricted due to an unforeseen event; and
(B) the Secretary provides within 90 days of the action notice and information on the need for the action to the Committee on Environment and Public Works and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives.
(e) Assessment of harbors and inland harbors
(1) In general
Not later than 270 days after June 10, 2014, and biennially thereafter, the Secretary shall assess, and issue a report to Congress on, the operation and maintenance needs and uses of the harbors and inland harbors referred to in subsection (a)(2).
(2) Assessment of harbor needs and activities
(A) Total operation and maintenance needs of harbors
In carrying out paragraph (1), the Secretary shall identify—
(i) the total future costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors referred to in subsection (a)(2); and
(ii) the total expected costs for expanded uses at eligible harbors or inland harbors referred to in subsection (d)(2).
(B) Uses of harbors and inland harbors
In carrying out paragraph (1), the Secretary shall identify current uses (and, to the extent practicable, assess the national, regional, and local benefits of such uses) of harbors and inland harbors referred to in subsection (a)(2), including the use of those harbors for—
(i) commercial navigation, including the movement of goods;
(ii) domestic trade;
(iii) international trade;
(iv) commercial fishing;
(v) subsistence, including use by Indian tribes (as defined in
(vi) use as a harbor of refuge;
(vii) transportation of persons;
(viii) purposes relating to domestic energy production, including the fabrication, servicing, or supply of domestic offshore energy production facilities;
(ix) activities of the Secretary of the department in which the Coast Guard is operating;
(x) activities of the Secretary of the Navy;
(xi) public health and safety related equipment for responding to coastal and inland emergencies;
(xii) recreation purposes; and
(xiii) other authorized purposes.
(C) Opportunities for beneficial use of dredged materials
In carrying out paragraph (1), the Secretary shall identify potential opportunities for the beneficial use of dredged materials obtained from harbors and inland harbors referred to in subsection (a)(2), including projects eligible under section 1122 of the Water Resources Development Act of 2016 (
(3) Report to Congress
(A) In general
For fiscal year 2016, and biennially thereafter, in conjunction with the President's annual budget submission to Congress under
(i) identifies the operation and maintenance costs associated with the harbors and inland harbors, including those costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors and the costs for expanded uses at eligible harbors and inland harbors, on a project-by-project basis;
(ii) identifies the amount of funding requested in the President's budget for the operation and maintenance costs associated with the harbors and inland harbors, on a project-by-project basis;
(iii) identifies the unmet operation and maintenance needs associated with the harbors and inland harbors, on a project-by-project basis; and
(iv) identifies the harbors and inland harbors for which the President will allocate funding over the subsequent 5 fiscal years for operation and maintenance activities, on a project-by-project basis, including the amounts to be allocated for such purposes.
(B) Additional requirement
In the first report submitted under subparagraph (A) following December 16, 2016, the Secretary shall identify, to the maximum extent practicable, transportation cost savings realized by achieving and maintaining the constructed width and depth for the harbors and inland harbors referred to in subsection (a)(2), on a project-by-project basis.
(C) Public availability
The Secretary shall make the report submitted under subparagraph (A) available to the public, including on the Internet.
(f) Definitions
In this section:
(1) Constructed width and depth
The term "constructed width and depth" means the width and depth to which a project has been constructed, which may not exceed the authorized width and depth of the project.
(2) Emerging harbor project
The term "emerging harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2) that transits less than 1,000,000 tons of cargo annually.
(3) Expanded uses
The term "expanded uses" means the following activities:
(A) The maintenance dredging of a berth in a harbor that is accessible to a Federal navigation project and that benefits commercial navigation at the harbor.
(B) The maintenance dredging and disposal of legacy-contaminated sediment, and sediment unsuitable for open water disposal, if—
(i) such dredging and disposal benefits commercial navigation at the harbor; and
(ii) such sediment is located in and affects the maintenance of a Federal navigation project or is located in a berth that is accessible to a Federal navigation project.
(4) Great Lakes Navigation System
The term "Great Lakes Navigation System" includes—
(A)(i) Lake Superior;
(ii) Lake Huron;
(iii) Lake Michigan;
(iv) Lake Erie; and
(v) Lake Ontario;
(B) all connecting waters between the lakes referred to in subparagraph (A) used for commercial navigation;
(C) any navigation features in the lakes referred to in subparagraph (A) or waters described in subparagraph (B) that are a Federal operation or maintenance responsibility; and
(D) areas of the Saint Lawrence River that are operated or maintained by the Federal Government for commercial navigation.
(5) Harbor maintenance tax
The term "harbor maintenance tax" means the amounts collected under
(6) High-use harbor project
The term "high-use harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2) that transits not less than 10,000,000 tons of cargo annually.
(7) Moderate-use harbor project
The term "moderate-use harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2) that transits annually—
(A) more than 1,000,000 tons of cargo; but
(B) less than 10,000,000 tons of cargo.
(8) Priority funds
The term "priority funds" means the difference between—
(A) the total funds that are made available under this section to pay the costs described in subsection (a)(2) for a fiscal year; and
(B) the total funds made available under this section to pay the costs described in subsection (a)(2) in fiscal year 2012.
(9) Underserved harbor project
(A) In general
The term "underserved harbor project" means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2)—
(i) that is a moderate-use harbor project or an emerging harbor project;
(ii) that has been maintained at less than the constructed width and depth of the project during each of the preceding 6 fiscal years; and
(iii) for which State and local investments in infrastructure have been made at those projects during the preceding 6 fiscal years.
(B) Administration
For purposes of this paragraph, State and local investments in infrastructure shall include infrastructure investments made using amounts made available for activities under
(
References in Text
Section 1122 of the Water Resources Development Act of 2016, referred to in subsec. (e)(2)(C), is section 1122 of
Amendments
2018—Subsec. (e)(1).
Subsec. (e)(2)(C).
2016—Subsec. (c)(3).
Subsec. (d)(1)(A).
"(i) 90 percent of the priority funds shall be used for high- and moderate-use harbor projects.
"(ii) 10 percent of the priority funds shall be used for emerging harbor projects."
Subsec. (d)(1)(B).
Subsec. (e)(3)(B), (C).
2014—Subsecs. (c) to (f).
1990—Subsec. (a)(2).
Guidance
§2238a. Estimate of harbor maintenance needs
For fiscal year 2014 and each fiscal year thereafter, the President's budget request submitted pursuant to
(1) an estimate of the nationwide average availability, expressed as a percentage, of the authorized depth and authorized width of all navigation channels authorized to be maintained using appropriations from the Harbor Maintenance Trust Fund that would result from harbor maintenance activities to be funded by the budget request; and
(2) an estimate of the average annual amount of appropriations from the Harbor Maintenance Trust Fund that would be required to increase that average availability to 95 percent over a 3-year period.
(
Codification
Section was enacted as part of the Moving Ahead for Progress in the 21st Century Act, also known as the MAP–21, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Effective Date
Section effective Oct. 1, 2012, see section 3(a) of
§2238b. Funding for harbor maintenance programs
(a) Definitions
In this section:
(1) Total amount of harbor maintenance taxes received
The term "total amount of harbor maintenance taxes received" means, with respect to a fiscal year, the aggregate of amounts appropriated, transferred, or credited to the Harbor Maintenance Trust Fund under
(2) Total budget resources
The term "total budget resources" means the total amount made available by appropriations Acts from the Harbor Maintenance Trust Fund for a fiscal year for making expenditures under
(b) Target appropriations
(1) In general
Except as provided in subsection (c), the target total budget resources made available to the Secretary from the Harbor Maintenance Trust Fund for a fiscal year shall be not less than the following:
(A) For fiscal year 2015, 67 percent of the total amount of harbor maintenance taxes received in fiscal year 2014.
(B) For fiscal year 2016, 69 percent of the total amount of harbor maintenance taxes received in fiscal year 2015.
(C) For fiscal year 2017, 71 percent of the total amount of harbor maintenance taxes received in fiscal year 2016.
(D) For fiscal year 2018, 74 percent of the total amount of harbor maintenance taxes received in fiscal year 2017.
(E) For fiscal year 2019, 77 percent of the total amount of harbor maintenance taxes received in fiscal year 2018.
(F) For fiscal year 2020, 80 percent of the total amount of harbor maintenance taxes received in fiscal year 2019.
(G) For fiscal year 2021, 83 percent of the total amount of harbor maintenance taxes received in fiscal year 2020.
(H) For fiscal year 2022, 87 percent of the total amount of harbor maintenance taxes received in fiscal year 2021.
(I) For fiscal year 2023, 91 percent of the total amount of harbor maintenance taxes received in fiscal year 2022.
(J) For fiscal year 2024, 95 percent of the total amount of harbor maintenance taxes received in fiscal year 2023.
(K) For fiscal year 2025, and each fiscal year thereafter, 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(2) Use of amounts
The total budget resources described in paragraph (1) may be used only for making expenditures under
(c) Exception
If the target total budget resources for a fiscal year described in subparagraphs (A) through (J) of subsection (b)(1) is lower than the target total budget resources for the previous fiscal year, the target total budget resources shall be adjusted to be equal to the lesser of—
(1) 103 percent of the total budget resources appropriated for the previous fiscal year; or
(2) 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(d) Impact on other funds
(1) Sense of Congress
It is the sense of Congress that any increase in funding for harbor maintenance programs under this section shall result from an overall increase in appropriations for the civil works program of the Corps of Engineers and not from reductions in the appropriations for other programs, projects, and activities carried out by the Corps of Engineers for other authorized purposes.
(2) Application
The target total budget resources for a fiscal year specified in subsection (b)(1) shall only apply in a fiscal year for which the level of appropriations provided for the civil works program of the Corps of Engineers in that fiscal year is increased, as compared to the previous fiscal year, by a dollar amount that is at least equivalent to the dollar amount necessary to address such target total budget resources in that fiscal year.
(
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
Subsec. (b)(1).
Subsecs. (c), (d).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2238c. Additional measures at donor ports and energy transfer ports
(a) Definitions
In this section:
(1) Cargo container
The term "cargo container" means a cargo container that is 1 Twenty-foot Equivalent Unit.
(2) Discretionary cargo
The term "discretionary cargo" means maritime cargo for which the United States port of unlading is different than the United States port of entry.
(3) Donor port
(A) In general
The term "donor port" means a port—
(i) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(ii) at which the total amount of harbor maintenance taxes collected comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund established under
(iii) that received less than 25 percent of the total amount of harbor maintenance taxes collected at that port in the previous 5 fiscal years; and
(iv) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded on to vessels in fiscal year 2012.
(B) Calculation
For the purpose of calculating the percentage described in subparagraph (A)(iii), payments described under subsection (c)(1) shall not be included.
(4) Energy commodity
The term "energy commodity" includes—
(A) petroleum products;
(B) natural gas;
(C) coal;
(D) wind and solar energy components; and
(E) biofuels.
(5) Energy transfer port
The term "energy transfer port" means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or any successor regulation); and
(B)(i) at which energy commodities comprised greater than 25 percent of all commercial activity by tonnage in fiscal year 2012; and
(ii) through which more than 40,000,000 tons of cargo were transported in fiscal year 2012.
(6) Expanded uses
The term "expanded uses" has the meaning given the term in
(7) Harbor maintenance tax
The term "harbor maintenance tax" has the meaning given the term in
(8) Medium-sized donor port
The term "medium-sized donor port" means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(B) at which the total amount of harbor maintenance taxes collected comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund established under
(C) that received less than 25 percent of the total amount of harbor maintenance taxes collected at that port in the previous 5 fiscal years; and
(D) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded onto vessels in fiscal year 2012.
(b) Authority
(1) In general
Subject to the availability of appropriations, the Secretary may provide to donor ports, medium-sized donor ports, and energy transfer ports amounts in accordance with this section.
(2) Limitations
Amounts provided under this section—
(A) for energy transfer ports shall be divided equally among all States with an energy transfer port;
(B) shall be made available to a port as either a donor port, medium-sized donor port, or an energy transfer port, and no port may receive amounts from more than 1 designation; and
(C) for donor ports and medium-sized donor ports—
(i) 50 percent of the funds shall be equally divided between the eligible donor ports as authorized by this section; and
(ii) 50 percent of the funds shall be divided between the eligible donor ports and eligible medium-sized donor ports based on the percentage of the total harbor maintenance tax revenues generated at each eligible donor port and medium-sized donor port.
(c) Use of funds
Amounts provided under this section may be used by a donor port, a medium-sized donor port, or an energy transfer port—
(1) to provide payments to importers entering cargo through that port, as calculated by the Secretary according to the value of discretionary cargo;
(2) for expanded uses; or
(3) for environmental remediation related to dredging berths and Federal navigation channels.
(d) Administration of payments
(1) In general
If a donor port, a medium-sized donor port, or an energy transfer port elects to provide payments to importers under subsection (c), the Secretary shall transfer to the Commissioner of U.S. Customs and Border Protection an amount equal to those payments that would otherwise be provided to the port under this section to provide the payments to the importers of the discretionary cargo that is—
(A) shipped through the port; and
(B) most at risk of diversion to seaports outside of the United States.
(2) Requirement
The Secretary, in consultation with a port electing to provide payments under subsection (c), shall determine the top importers at the port, as ranked by the value of discretionary cargo, and payments shall be limited to those top importers.
(e) Report to Congress
(1) In general
Not later than 18 months after June 10, 2014, the Secretary shall assess the impact of the authority provided by this section 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 and make publicly available a report on the results of that assessment, including any recommendations for amending or reauthorizing the authority.
(2) Factors
In carrying out the assessment under paragraph (1), the Secretary shall assess—
(A) the impact of the amounts provided and used under this section on those ports that received funds under this section; and
(B) any impact on domestic harbors and ports that did not receive funds under this section.
(f) Authorization of appropriations
(1) In general
There is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2015 through 2020.
(2) Division between donor ports, medium-sized donor ports, and energy transfer ports
For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to—
(A) donor ports and medium-sized donor ports; and
(B) energy transfer ports.
(3) Additional appropriations
If the target total budget resources under subparagraphs (A) through (D) of
(g) Savings clause
Nothing in this section waives any statutory requirement related to the transportation of merchandise as authorized under
(
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)(2).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (a)(5)(A).
Subsec. (a)(6), (7).
Subsec. (a)(8).
Subsec. (b)(1).
Subsec. (b)(2)(B), (C).
Subsec. (c).
Subsec. (c)(1).
Subsec. (d).
Subsec. (f)(1).
Subsec. (f)(2).
Subsec. (f)(3).
Subsec. (g).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2238d. Maintenance of harbors of refuge
The Secretary is authorized to maintain federally authorized harbors of refuge to restore and maintain the authorized dimensions of the harbors.
(
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
§2239. Repealed. Pub. L. 101–640, title IV, §412(f), Nov. 28, 1990, 104 Stat. 4650
Section,
Sediments Decontamination Technology
"(a)
"(1)
"(2)
"(3)
"(4)
"(5)
"(b)
"(c)
"(d)
"(e)
Alternatives to Mud Dump Site for Disposal of Dredged Material
"(a)
"(b)
"(1) an identification of the source, quantities, and characteristics of material to be dredged;
"(2) a discussion of potential alternative sites for disposal of dredged material, including the feasibility of altering the boundaries of the Mud Dump Site;
"(3) measures to reduce the quantities of dredged material proposed for ocean disposal;
"(4) measures to reduce the amount of contaminants in materials proposed to be dredged from the Harbor through source controls and decontamination technology;
"(5) a program for monitoring the physical, chemical, and biological effects of dumping dredged material at the Mud Dump Site; and
"(6) a study of the characteristics of the bottom sediments, including type and distribution.
"(c)
"(d)
"(e)
"(f)
§2240. Emergency response services
(a) Grants
The Secretary is authorized to make grants to any non-Federal interest operating a project for a harbor for provision of emergency response services in such harbor (including contingency planning, necessary personnel training, and the procurement of equipment and facilities either by the non-Federal interest, by a local agency or municipality, or by a combination of local agencies or municipalities on a cost-reimbursable basis, either by a cooperative agreement, mutual aid plan, or mutual assistance plan entered into between one or more non-Federal interests, public agencies, or local municipalities).
(b) Authorization of appropriations
There is authorized to be appropriated for fiscal years beginning after September 30, 1986, and ending before October 1, 1992, $5,000,000.
(
§2241. Definitions
For purposes of this subchapter—
(1) Deep-draft harbor
The term "deep-draft harbor" means a harbor which is authorized to be constructed to a depth of more than 45 feet (other than a project which is authorized by
(2) Eligible operations and maintenance
(A) Except as provided in subparagraph (B), the term "eligible operations and maintenance" means all Federal operations, maintenance, repair, and rehabilitation, including (i) maintenance dredging reasonably necessary to maintain the width and nominal depth of any harbor or inland harbor; (ii) the construction of dredged material disposal facilities that are necessary for the operation and maintenance of any harbor or inland harbor; (iii) dredging and disposing of contaminated sediments that are in or that affect the maintenance of Federal navigation channels; (iv) mitigating for impacts resulting from Federal navigation operation and maintenance activities; and (v) operating and maintaining dredged material disposal facilities.
(B) As applied to the Saint Lawrence Seaway, the term "eligible operations and maintenance" means all operations, maintenance, repair, and rehabilitation, including maintenance dredging reasonably necessary to keep such Seaway or navigation improvements operated or maintained by the Saint Lawrence Seaway Development Corporation in operation and reasonable state of repair.
(C) The term "eligible operations and maintenance" does not include providing any lands, easements, or rights-of-way, or performing relocations required for project operations and maintenance.
(3) General cargo harbor
The term "general cargo harbor" means a harbor for which a project is authorized by
(4) Harbor
The term "harbor" means any channel or harbor, or element thereof, in the United States, capable of being utilized in the transportation of commercial cargo in domestic or foreign waterborne commerce by commercial vessels. The term does not include—
(A) an inland harbor;
(B) the Saint Lawrence Seaway;
(C) local access or berthing channels;
(D) channels or harbors constructed or maintained by nonpublic interests; and
(E) any portion of the Columbia River other than the channels on the downstream side of Bonneville lock and dam.
(5) Inland harbor
The term "inland harbor" means a navigation project which is used principally for the accommodation of commercial vessels and the receipt and shipment of waterborne cargoes on inland waters. The term does not include—
(A) projects on the Great Lakes;
(B) projects that are subject to tidal influence;
(C) projects with authorized depths of greater than 20 feet;
(D) local access or berthing channels; and
(E) projects constructed or maintained by nonpublic interests.
(6) Nominal depth
The term "nominal depth" means, in relation to the stated depth for any navigation improvement project, such depth, including any greater depths which must be maintained for any harbor or inland harbor or element thereof included within such project in order to ensure the safe passage at mean low tide of any vessel requiring the stated depth.
(7) Non-Federal interest
The term "non-Federal interest" has the meaning such term has under
(8) United States
The term "United States" means all areas included within the territorial boundaries of the United States, including the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Northern Mariana Islands, and any other territory or possession over which the United States exercises jurisdiction.
(
References in Text
Amendments
1996—Par. (2)(A).
Par. (2)(C).
Increases in Non-Federal Share of Costs
Amendment by
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2242. Remote and subsistence harbors
(a) In general
In conducting a study of harbor and navigation improvements, the Secretary may recommend a project without the need to demonstrate that the project is justified solely by national economic development benefits if the Secretary determines that—
(1)(A) the community to be served by the project is at least 70 miles from the nearest surface accessible commercial port and has no direct rail or highway link to another community served by a surface accessible port or harbor; or
(B) the project would be located in the State of Hawaii or Alaska, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, or American Samoa;
(2) the harbor is economically critical such that over 80 percent of the goods transported through the harbor would be consumed within the region served by the harbor and navigation improvement, as determined by the Secretary, including consideration of information provided by the non-Federal interest; and
(3) the long-term viability of the community in which the project is located, or the long-term viability of a community that is located in the region that is served by the project and that will rely on the project, would be threatened without the harbor and navigation improvement.
(b) Justification
In considering whether to recommend a project under subsection (a), the Secretary shall consider the benefits of the project to—
(1) public health and safety of the local community and communities that are located in the region to be served by the project and that will rely on the project, including access to facilities designed to protect public health and safety;
(2) access to natural resources for subsistence purposes;
(3) local and regional economic opportunities;
(4) welfare of the regional population to be served by the project; and
(5) social and cultural value to the local community and communities that are located in the region to be served by the project and that will rely on the project.
(c) Prioritization
Projects recommended by the Secretary under subsection (a) shall be given equivalent budget consideration and priority as projects recommended solely by national economic development benefits.
(d) Disposition
(1) In general
The Secretary may carry out any project identified in the study carried out pursuant to subsection (a) in accordance with the criteria for projects carried out under the authority of the Secretary under
(2) Non-Federal interests
In evaluating and implementing a project under this section, the Secretary shall allow a non-Federal interest to participate in the financing of a project in accordance with the criteria established for flood control projects under section 903(c) of the Water Resources Development Act of 1986 (
(e) Annual report
For a project that cannot be carried out under the authority specified in subsection (d), on a determination by the Secretary of the feasibility of the project under subsection (a), the Secretary may include a recommendation concerning the project in the annual report submitted to Congress under
(
References in Text
Section 903(c) of the Water Resources Development Act of 1986 (
Codification
Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsec. (a)(3).
Subsec. (b)(1).
Subsec. (b)(4).
Subsec. (b)(5).
2014—Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsecs. (c) to (e).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2243. Arctic deep draft port development partnerships
(a) In general
The Secretary may provide technical assistance to non-Federal public entities, including Indian tribes (as defined in
(b) Acceptance of funds
The Secretary is authorized to accept and expend funds provided by non-Federal public entities, including Indian tribes (as defined in
(c) Limitation
No assistance may be provided under this section until after the date on which the entity to which that assistance is to be provided enters into a written agreement with the Secretary that includes such terms and conditions as the Secretary determines to be appropriate and in the public interest.
(d) Prioritization
The Secretary shall prioritize technical assistance provided under this section for Arctic deep draft ports identified by the Secretary, the Secretary of the department in which the Coast Guard is operating, and the Secretary of Defense as important for Arctic development and security.
(e) Consideration of national security interests
In carrying out a study of the feasibility of an Arctic deep draft port, the Secretary—
(1) shall consult with the Secretary of the department in which the Coast Guard is operating to identify benefits in carrying out the missions specified in
(2) shall consult with the Secretary of Defense to identify national security benefits associated with an Arctic deep draft port; and
(3) may consider such benefits in determining whether an Arctic deep draft port is feasible.
(
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2016—Subsecs. (a), (b).
Subsec. (d).
Subsec. (e).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be followed by a closing parenthesis.
SUBCHAPTER III—INLAND WATERWAY TRANSPORTATION SYSTEM
§2251. Inland Waterways Users Board
(a) Establishment of Users Board
There is hereby established an Inland Waterway Users Board (hereinafter in this section referred to as the "Users Board") composed of the eleven members selected by the Secretary, one of whom shall be designated by the Secretary as Chairman. The members shall be selected so as to represent various regions of the country and a spectrum of the primary users and shippers utilizing the inland and intracoastal waterways for commercial purposes. Due consideration shall be given to assure a balance among the members based on the ton-mile shipments of the various categories of commodities shipped on inland waterways. The Secretary of the Army shall designate, and the Secretaries of Agriculture, Transportation, and Commerce may each designate, a representative to act as an observer of the Users Board.
(b) Duties of Users Board
(1) In general
The Users Board shall meet not less frequently than semiannually to develop and make recommendations to the Secretary and Congress regarding the inland waterways and inland harbors of the United States.
(2) Advice and recommendations
For commercial navigation features and components of the inland waterways and inland harbors of the United States, the Users Board shall provide—
(A) prior to the development of the budget proposal of the President for a given fiscal year, advice and recommendations to the Secretary regarding construction and rehabilitation priorities and spending levels;
(B) advice and recommendations to Congress regarding any feasibility report for a project on the inland waterway system that has been submitted to Congress pursuant to
(C) advice and recommendations to Congress regarding an increase in the authorized cost of those features and components;
(D) not later than 60 days after the date of the submission of the budget proposal of the President to Congress, advice and recommendations to Congress regarding construction and rehabilitation priorities and spending levels; and
(E) advice and recommendations on the development of a long-term capital investment program in accordance with subsection (d).
(3) Project development teams
The chairperson of the Users Board shall appoint a representative of the Users Board to serve as an advisor to the project development team for a qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States.
(4) Independent judgment
Any advice or recommendation made by the Users Board to the Secretary shall reflect the independent judgment of the Users Board.
(c) Duties of Secretary
The Secretary shall—
(1) communicate not less frequently than once each quarter to the Users Board the status of the study, design, or construction of all commercial navigation features or components of the inland waterways or inland harbors of the United States; and
(2) submit to the Users Board a courtesy copy of all completed feasibility reports relating to a commercial navigation feature or component of the inland waterways or inland harbors of the United States.
(d) Capital investment program
(1) In general
Not later than 1 year after June 10, 2014, the Secretary, in coordination with the Users Board, shall develop and submit to Congress a report describing a 20-year program for making capital investments on the inland and intracoastal waterways based on the application of objective, national project selection prioritization criteria.
(2) Consideration
In developing the program under paragraph (1), the Secretary shall take into consideration the 20-year capital investment strategy contained in the Inland Marine Transportation System (IMTS) Capital Projects Business Model, Final Report published on April 13, 2010, as approved by the Users Board.
(3) Criteria
In developing the plan and prioritization criteria under paragraph (1), the Secretary shall ensure, to the maximum extent practicable, that investments made under the 20-year program described in paragraph (1)—
(A) are made in all geographical areas of the inland waterways system; and
(B) ensure efficient funding of inland waterways projects.
(4) Strategic review and update
Not later than 5 years after June 10, 2014, and not less frequently than once every 5 years thereafter, the Secretary, in coordination with the Users Board, shall—
(A) submit to Congress and make publicly available a strategic review of the 20-year program in effect under this subsection, which shall identify and explain any changes to the project-specific recommendations contained in the previous 20-year program (including any changes to the prioritization criteria used to develop the updated recommendations); and
(B) make revisions to the program, as appropriate.
(e) Project management plans
The chairperson of the Users Board and the project development team member appointed by the chairperson under subsection (b)(3) may sign the project management plan for the qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States.
(f) Administration
(1) In general
The Users Board shall be subject to the Federal Advisory Committee Act (5 U.S.C. App.), other than section 14, and, with the consent of the appropriate agency head, the Users Board may use the facilities and services of any Federal agency.
(2) Members not considered special Government employees
For the purposes of complying with the Federal Advisory Committee Act (5 U.S.C. App.), the members of the Users Board shall not be considered special Government employees (as defined in
(3) Travel expenses
Non-Federal members of the Users Board while engaged in the performance of their duties away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by
(
References in Text
The Federal Advisory Committee Act, referred to in subsec. (f)(1) and (2), is
Amendments
2014—Subsec. (b).
Subsecs. (c) to (f).
1999—Subsec. (b).
§2252. Project delivery process reforms
(a) Requirements for qualifying projects
With respect to each qualifying project, the Secretary shall require—
(1) for each project manager, that—
(A) the project manager have formal project management training and certification; and
(B) the project manager be assigned from among personnel certified by the Chief of Engineers; and
(2) for an applicable cost estimation, that—
(A) the Secretary utilize a risk-based cost estimate with a confidence level of at least 80 percent; and
(B) the cost estimate be developed—
(i) for a qualifying project that requires an increase in the authorized amount in accordance with
(ii) for a qualifying project for which the first construction contract has not been awarded, prior to the award of the first construction contract;
(iii) for a qualifying project without a completed feasibility report in accordance with
(iv) for a qualifying project with a completed feasibility report in accordance with
(b) Additional project delivery process reforms
Not later than 18 months after June 10, 2014, the Secretary shall—
(1) establish a system to identify and apply on a continuing basis best management practices from prior or ongoing qualifying projects to improve the likelihood of on-time and on-budget completion of qualifying projects;
(2) evaluate early contractor involvement acquisition procedures to improve on-time and on-budget project delivery performance; and
(3) implement any additional measures that the Secretary determines will achieve the purposes of this subtitle, including—
(A) the implementation of applicable practices and procedures developed pursuant to management by the Secretary of an applicable military construction program;
(B) the development and use of a portfolio of standard designs for inland navigation locks, incorporating the use of a center of expertise for the design and review of qualifying projects;
(C) the use of full-funding contracts or formulation of a revised continuing contracts clause; and
(D) the establishment of procedures for recommending new project construction starts using a capital projects business model.
(c) Pilot projects
(1) In general
Subject to paragraph (2), the Secretary may carry out pilot projects to evaluate processes and procedures for the study, design, and construction of qualifying projects.
(2) Inclusions
At a minimum, the Secretary shall carry out pilot projects under this subsection to evaluate—
(A) early contractor involvement in the development of features and components;
(B) an appropriate use of continuing contracts for the construction of features and components; and
(C) applicable principles, procedures, and processes used for military construction projects.
(
References in Text
This subtitle, referred to in subsec. (b)(3), is subtitle A (§§2001–2013) of title II of
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Section is comprised of section 2002 of
Definitions
Secretary means the Secretary of the Army, see section 2 of
"(1)
"(2)
"(A) authorized before, on, or after the date of enactment of this Act [June 10, 2014];
"(B) not completed on the date of enactment of this Act; and
"(C) funded at least in part from the Inland Waterways Trust Fund."
§2253. Annual financial review
For any inland waterways project that the Secretary carries out that has an estimated total cost of $500,000,000 or more, the Secretary shall submit to the congressional committees referred to in subsection (a) 1 an annual financial plan for the project. The plan shall be based on detailed annual estimates of the cost to complete the remaining elements of the project and on reasonable assumptions, as determined by the Secretary, of any future increases of the cost to complete the project.
(
References in Text
The congressional committees referred to in subsection (a), referred to in text, mean the congressional committees referred to in subsec. (a) of section 2007 of
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 See References in Text note below.
§2254. Assessment of operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway
(a) In general
Not later than 90 days after June 10, 2014, the Secretary shall assess the operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway.
(b) Types of activities
In carrying out subsection (a), the Secretary shall assess the operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway as used for the following purposes:
(1) Commercial navigation.
(2) Commercial fishing.
(3) Subsistence, including utilization by Indian tribes (as defined in
(4) Use as ingress and egress to harbors of refuge.
(5) Transportation of persons.
(6) Purposes relating to domestic energy production, including fabrication, servicing, and supply of domestic offshore energy production facilities.
(7) Activities of the Secretary of the department in which the Coast Guard is operating.
(8) Public health and safety related equipment for responding to coastal and inland emergencies.
(9) Recreation purposes.
(10) Any other authorized purpose.
(c) Report to Congress
For fiscal year 2015, and biennially thereafter, in conjunction with the annual budget submission by the President to Congress under
(1) identifies the operation and maintenance costs required to achieve the authorized length, width, and depth;
(2) identifies the amount of funding requested in the President's budget for operation and maintenance costs; and
(3) identifies the unmet operation and maintenance needs of the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway.
(
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
§2255. Inland waterways riverbank stabilization
(a) In general
Not later than 1 year after June 10, 2014, and biennially thereafter, the Secretary shall conduct a study to determine the feasibility of—
(1) carrying out projects for the inland and intracoastal waterways for purposes of—
(A) flood damage reduction;
(B) emergency streambank and shoreline protection; and
(C) prevention and mitigation of shore damages attributable to navigation improvements; and
(2) modifying projects for the inland and intracoastal waterways for the purpose of improving the quality of the environment.
(b) Recommendations
In conducting the study, the Secretary shall develop specific project recommendations and prioritize those recommendations based on—
(1) the extent of damage and land loss resulting from riverbank erosion;
(2) the rate of erosion;
(3) the significant threat of future flood risk to public property, public infrastructure, or public safety;
(4) the destruction of natural resources or habitats; and
(5) the potential cost savings for maintenance of the channel.
(c) Disposition
The Secretary may carry out any project identified in the study conducted pursuant to subsection (a) in accordance with the criteria for projects carried out under one of the following authorities:
(1)
(2)
(3)
(4)
(d) Annual report
For a project recommended pursuant to the study that cannot be carried out under any of the authorities specified in subsection (c), upon a determination by the Secretary of the feasibility of the project, the Secretary may include a recommendation concerning the project in the annual report submitted to Congress under
(
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
SUBCHAPTER IV—WATER RESOURCES STUDIES
§2261. Territories development study
The Secretary is hereby authorized and directed to make studies in cooperation with the Secretary of the Interior and the governments of the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands for the purposes of providing plans for the development, utilization, and conservation of water and related land resources of such jurisdiction, at a total cost of $2,000,000 for each of the five studies. Such studies shall include appropriate consideration of the needs for flood protection, wise use of flood plain lands, navigation facilities, hydroelectric power generation, regional water supply and waste water management facilities systems, general recreation facilities, enhancement and control of water quality, enhancement and conservation of fish and wildlife, and other measures for environmental enhancement, economic and human resources development. Such studies shall be compatible with comprehensive development plans formulated by local planning agencies and other interested Federal agencies. Any funds made available under this section for a study for any such jurisdiction which is not needed for such study shall be available to the Secretary to construct authorized water resources projects in such jurisdiction and to implement the findings of such study with appropriate cost sharing as provided in this Act.
(
References in Text
This Act, referred to in text, is
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2262. Survey of potential for use of certain facilities as hydroelectric facilities
(a) Survey authority
The Secretary shall, upon the request of local public officials, survey the potential and methods for rehabilitating former industrial sites, millraces, and similar types of facilities already constructed for use as hydroelectric facilities. The Secretary shall, upon request, provide technical assistance to local public agencies, including electric cooperatives, in designing projects to rehabilitate sites that have been surveyed, or are qualified for such survey, under this section. The non-Federal share of the cost of carrying out this section shall be 50 percent.
(b) Authorization of appropriations
There is authorized to be appropriated to the Secretary, to implement this section, the sum of $5,000,000 for each of the fiscal years ending September 30, 1988, through September 30, 1992, such sums to remain available until expended.
(
§2263. Study of Corps capability to conserve fish and wildlife
(a) Investigation and study
The Secretary shall investigate and study the feasibility of utilizing the capabilities of the United States Army Corps of Engineers to conserve fish and wildlife (including their habitats) where such fish and wildlife are indigenous to the United States, its possessions, or its territories. The scope of such study shall include the use of engineering or construction capabilities to create alternative habitats, or to improve, enlarge, develop, or otherwise beneficially modify existing habitats of such fish and wildlife. The study shall be conducted in consultation with the Director of the Fish and Wildlife Service of the Department of the Interior, the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration, and the Administrator of the Environmental Protection Agency, and shall be transmitted within the 30-month period beginning on November 17, 1986, by the Secretary to Congress, together with the findings, conclusions, and recommendations of the Chief of Engineers. The Secretary, in consultation with the Federal officers referred to in the preceding sentence, shall undertake a continuing review of the matters covered in the study and shall transmit to Congress, on a biennial basis, any revisions to the study that may be required as a result of the review, together with the findings, conclusions, and recommendations of the Chief of Engineers.
(b) Projects
(1) In general
The Secretary is further authorized to conduct projects of alternative or beneficially modified habitats for fish and wildlife, including but not limited to man-made reefs for fish. There is authorized to be appropriated not to exceed $100,000,000 to carry out such projects.
(2) Inclusions
Such projects shall be developed, and their effectiveness evaluated, in consultation with the Director of the Fish and Wildlife Service and the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration. Such projects shall include—
(A) the construction of a reef for fish habitat in Lake Erie in the vicinity of Buffalo, New York;
(B) the construction of a reef for fish habitat in the Atlantic Ocean in the vicinity of Fort Lauderdale, Florida;
(C) the construction of a reef for fish habitat in Lake Ontario in the vicinity of the town of Newfane, New York; and
(D) the restoration and rehabilitation of habitat for fish, including native oysters, in the Chesapeake Bay and its tributaries in Virginia and Maryland, including—
(i) the construction of oyster bars and reefs;
(ii) the rehabilitation of existing marginal habitat;
(iii) the use of appropriate alternative substrate material in oyster bar and reef construction;
(iv) the construction and upgrading of oyster hatcheries; and
(v) activities relating to increasing the output of native oyster broodstock for seeding and monitoring of restored sites to ensure ecological success.
(3) Restoration and rehabilitation activities
The restoration and rehabilitation activities described in paragraph (2)(D) shall be—
(A) for the purpose of establishing permanent sanctuaries and harvest management areas; and
(B) consistent with plans and strategies for guiding the restoration of the Chesapeake Bay oyster resource and fishery.
(4) Cost sharing
(A) In general
The non-Federal share of the cost of any project under this subsection shall be 25 percent.
(B) Form
The non-Federal share may be provided through in-kind services, including—
(i) the provision by the non-Federal interest of shell stock material that is determined by the Secretary to be suitable for use in carrying out the project; and
(ii) in the case of a project carried out under paragraph (2)(D) after June 10, 2014, land conservation or restoration efforts undertaken by the non-Federal interest that the Secretary determines provide water quality benefits that—
(I) enhance the viability of oyster restoration efforts;
(II) are integral to the project; and
(III) are cost effective.
(C) Applicability
The non-Federal interest shall be credited with the value of in-kind services provided on or after October 1, 2000, for a project described in paragraph (1) completed on or after that date, if the Secretary determines that the work is integral to the project.
(5) Definition of ecological success
In this subsection, the term "ecological success" means—
(A) achieving a tenfold increase in native oyster biomass by the year 2010, from a 1994 baseline; and
(B) the establishment of a sustainable fishery as determined by a broad scientific and economic consensus.
In carrying out paragraph (4),1 the Chief of Engineers may solicit participation by and the services of commercial watermen in the construction of the reefs.
(
References in Text
Paragraph (4), referred to in concluding provisions of subsec. (b), meaning subsec. (b)(4) of this section, was redesignated subsec. (b)(1)(D) by
Amendments
2016—Subsec. (b)(1).
2014—Subsec. (b)(1).
Subsec. (b)(4)(B).
2007—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(2)(D).
Subsec. (b)(3), (4).
Subsec. (b)(5).
2005—Subsec. (b)(1).
2001—Subsec. (b).
2000—Subsec. (b).
Subsec. (b)(4).
1996—Subsec. (b).
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which a report required under subsec. (a) of this section is listed on page 68), see section 3003 of
1 See References in Text note below.
§2263a. Aquatic invasive species research
(a) In general
As part of the ongoing activities of the Engineer Research and Development Center to address the spread and impacts of aquatic invasive species, the Secretary shall undertake research on the management and eradication of aquatic invasive species, including Asian carp and zebra mussels.
(b) Locations
In carrying out subsection (a), the Secretary shall work with Corps of Engineers district offices representing diverse geographical regions of the continental United States that are impacted by aquatic invasive species, such as the Atlantic, Pacific, and Gulf coasts and the Great Lakes.
(c) Report
Not later than 180 days after October 23, 2018, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report recommending a plan to address the spread and impacts of aquatic invasive species.
(
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
§2264. Deauthorization of studies
(a) Notwithstanding section 3003 of
(1) the date of authorization and the manner in which the study was authorized;
(2) a description of the purposes of the study;
(3) a description of funding that has been made available for the study;
(4) a description of any work that has been performed in carrying out the study and the results and conclusions, if any, of such work; and
(5) a description of any work that remains to be done in carrying out the study and the time necessary for and estimated cost of completing such work.
(b) Each study included in a list under subsection (a) is not authorized on and after the 90th day following the submission to Congress of such list if no funds have been appropriated for such study after the list is submitted and before such 90th day.
(
Amendments
1999—Subsec. (a).
§2265. Columbia River/Arkansas River Basin transfers
(a) No Federal agency shall study or participate in the study of any regional or river basin plan or any plan for any Federal water and related land resource project which has as its objective the transfer of water from the Columbia River Basin to any other region or any other major river basin of the United States, unless such study is approved by the Governors of all affected States.
(b) For a period of 5 years after November 17, 1986, no Federal agency shall study or participate in the study of any regional or river basin plan or any plan for any Federal water and related land resource project which has as its objective the transfer of water from the Arkansas River Basin to any other region or any other major river basin of the United States, unless such study is approved by the Governors of all affected States.
(
§2266. Canadian tidal power study
(a) Study authority
The Secretary, after consultation with the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service, the United States Fish and Wildlife Service, and other appropriate governmental agencies, and the National Research Council of the National Academy of Sciences, is authorized and directed to undertake studies to identify the impacts on the United States of potential Canadian tidal power development in the Bay of Fundy, and submit such studies to the appropriate committees of the Congress.
(b) Study phases
The Secretary shall conduct the studies authorized in subsection (a) of this section in two phases:
(1) Studies to be completed not later than October 1, 1988, to (A) identify effects of any such projects on tidal ranges and resulting impacts to beaches and estuarine areas, and (B) identify further studies which would be needed to meet the requirements of paragraph (2) of this subsection; and
(2) Studies to be completed not later than October 1, 1990, to (A) determine further environmental, social, economic, and institutional impacts of such tidal power development, and (B) determine what measures could be taken in Canada and the United States to offset or minimize any adverse impacts of such development on the United States.
(c) Authorization of appropriations
In the fiscal year ending September 30, 1987, or in any fiscal year thereafter, there is authorized to be appropriated to the Secretary the sum of $1,100,000 for the purposes of subsection (b)(1) of this section, and the sum of $8,900,000 for the purposes of subsection (b)(2) of this section, such sums to remain available until expended.
(
§2267. New York Bight study
(a) Study authority
The Secretary shall study a hydro-environmental monitoring and information system in the New York Bight in the form of a system using computerized buoys and radio telemetry that allows for the continual monitoring (at strategically located sites throughout the New York Bight) of the following: wind, wave, current, salinity and thermal gradients and sea chemistry, in order to measure the effect of changes due to air and water pollution, including changes due to continued dumping in the Bight.
(b) Study of physical hydraulic model
In addition, the Secretary shall study a proper physical hydraulic model of the New York Bight and for such an offshore model to be tied into the existing inshore physical hydraulic model of the Port of New York and New Jersey operated by the United States Army Corps of Engineers.
(c) Agency coordination; findings and recommendations
The Secretary shall coordinate fully with the Administrator of the Environmental Protection Agency in carrying out the study described in this section and shall report any findings and recommendations to Congress. The Secretary and the Administrator shall also consider the views of other appropriate Federal, State, and local agencies, academic institutions, and members of the public who are concerned about water quality in the New York Bight.
(d) Authorization of appropriations
There is authorized to be appropriated not more than $1,000,000 per fiscal year for each of fiscal years 1987, 1988, 1989, 1990, and 1991.
(
New York Bight and Harbor Study
"(a)
"(b)
"(c)
"(d)
"(e)
"(1)
"(2)
"(A) the dioxin study and monitoring required in this subsection; and
"(B) the effectiveness and costs of all reasonable remediation measures, including recommendations as to a plan for implementation of the most time and cost-effective measures.
"(f)
§2267a. Watershed and river basin assessments
(a) In general
The Secretary may assess the water resources needs of river basins and watersheds of the United States, including needs relating to—
(1) ecosystem protection and restoration;
(2) flood damage reduction;
(3) navigation and ports;
(4) watershed protection;
(5) water supply; and
(6) drought preparedness.
(b) Cooperation
An assessment under subsection (a) shall be carried out in cooperation and coordination with—
(1) the Secretary of the Interior;
(2) the Secretary of Agriculture;
(3) the Secretary of Commerce;
(4) the Administrator of the Environmental Protection Agency; and
(5) the heads of other appropriate agencies.
(c) Consultation
In carrying out an assessment under subsection (a), the Secretary shall consult with Federal, tribal, State, interstate, and local governmental entities.
(d) Priority river basins and watersheds
In selecting river basins and watersheds for assessment under this section, the Secretary shall give priority to—
(1) the Delaware River basin;
(2) the Kentucky River basin;
(3) the Potomac River basin;
(4) the Susquehanna River basin;
(5) the Willamette River basin;
(6) Tuscarawas River Basin, Ohio;
(7) Sauk River Basin, Snohomish and Skagit Counties, Washington;
(8) Niagara River Basin, New York;
(9) Genesee River Basin, New York; and
(10) White River Basin, Arkansas and Missouri.
(e) Acceptance of contributions
In carrying out an assessment under subsection (a), the Secretary may accept contributions, in cash or in kind, from Federal, tribal, State, interstate, and local governmental entities to the extent that the Secretary determines that the contributions will facilitate completion of the assessment.
(f) Cost-sharing requirements
(1) Non-Federal share
The non-Federal share of the costs of an assessment carried out under this section on or after December 11, 2000, shall be 25 percent.
(2) Credit
(A) In general
Subject to subparagraph (B), the Secretary may credit toward the non-Federal share of an assessment under this section the cost of services, materials, supplies, or other in-kind contributions provided by the non-Federal interests for the assessment.
(B) Maximum amount of credit
The credit under subparagraph (A) may not exceed an amount equal to 25 percent of the costs of the assessment.
(
Amendments
2007—Subsec. (d)(6) to (10).
Subsec. (f)(1).
Subsec. (g).
2000—
"(a) The Secretary, in coordination with the Secretary of the Interior and in consultation with appropriate Federal, State, and local agencies, is authorized to study the water resources needs of river basins and regions of the United States. The Secretaries shall report the results of such study to Congress not later than October 1, 1988.
"(b) In carrying out the studies authorized under subsection (a) of this section, the Secretaries shall consult with State, interstate, and local governmental entities.
"(c) There is authorized to be appropriated $5,000,000 for fiscal years beginning after September 30, 1986, to carry out this section."
§2267b. Post-disaster watershed assessments
(a) Watershed assessments
(1) In general
In an area that the President has declared a major disaster in accordance with
(2) Existing projects
A watershed assessment carried out paragraph 1 (1) may identify existing projects being carried out under 1 or more of the authorities referred to in subsection (b)(1).
(3) Duplicate watershed assessments
In carrying out a watershed assessment under paragraph (1), the Secretary shall use all existing watershed assessments and related information developed by the Secretary or other Federal, State, or local entities.
(b) Projects
(1) In general
The Secretary may carry out projects identified under a watershed assessment under subsection (a) in accordance with the criteria for projects carried out under one of the following authorities:
(A) Section 205 of the Flood Control Act of 1948 (
(B) Section 111 of the River and Harbor Act of 1968 (
(C) Section 206 of the Water Resources Development Act of 1996 (
(D) Section 1135 of the Water Resources Development Act of 1986 (
(E) Section 107 of the River and Harbor Act of 1960 (
(F) Section 3 of the Act of August 13, 1946 (
(2) Annual plan
For each project that does not meet the criteria under paragraph (1), the Secretary shall include a recommendation relating to the project in the annual report submitted to Congress by the Secretary in accordance with
(3) Existing projects
In carrying out a project under paragraph (1), the Secretary shall—
(A) to the maximum extent practicable, use all existing information and studies available for the project; and
(B) not require any element of a study completed for the project prior to the disaster to be repeated.
(c) Requirements
All requirements applicable to a project under the Acts described in subsection (b) shall apply to the project.
(d) Limitations on assessments
A watershed assessment under subsection (a) shall be initiated not later than 2 years after the date on which the major disaster declaration is issued.
(e) Assessments in territories of the United States
(1) In general
For any major disaster declared in a territory of the United States before October 23, 2018, all activities in the territory carried out or undertaken pursuant to the authorities described in this section shall be conducted at full Federal expense unless the President determines that the territory has the ability to pay the cost share for an assessment under this section without the use of loans.
(2) Territory defined
In this subsection, the term "territory of the United States" means an insular area specified in
(
References in Text
The Flood Control Act of 1948, referred to in subsecs. (b)(1)(A) and (c), is act June 30, 1948, ch. 771, title II,
The River and Harbor Act of 1968, referred to in subsecs. (b)(1)(B) and (c), is
The Water Resources Development Act of 1996, referred to in subsecs. (b)(1)(C) and (c), is
The Water Resources Development Act of 1986, referred to in subsecs. (b)(1)(D) and (c), is
The River and Harbor Act of 1960, referred to in subsecs. (b)(1)(E) and (c), is
The Act of August 13, 1946, referred to in subsecs. (b)(1)(F) and (c), is act Aug. 13, 1946, ch. 960,
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2018—Subsec. (e).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
1 So in original. Probably should be preceded by "under".
§2268. Marine technology review
(a) Dredging needs
The Secretary is authorized to conduct such studies as are necessary to provide a report to Congress on the dredging needs of the national ports and harbors of the United States. The report shall include existing and projected future project depths, types and sizes of ships in use, and world trade patterns, an assessment of the future national waterside infrastructure needs, and a comparison of drafts of United States and selected world ports.
(b) Authorization of appropriations
There is authorized to be appropriated $2,500,000 to carry out this section for fiscal years beginning after September 30, 1992. Such sums shall remain available until expended.
(
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.
"Secretary" Defined
Secretary means the Secretary of the Army, see section 3 of
§2269. Tribal partnership program
(a) Definition of Indian tribe
In this section, the term "Indian tribe" has the meaning given the term in
(b) Program
(1) In general
In cooperation with Indian tribes and the heads of other Federal agencies, the Secretary may carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects, that—
(A) will substantially benefit Indian tribes; and
(B) are located primarily within Indian country (as defined in
(2) Authorized activities
An activity conducted under paragraph (1) may address—
(A) projects for flood damage reduction, environmental restoration and protection, and preservation of cultural and natural resources;
(B) watershed assessments and planning activities; and
(C) such other projects as the Secretary, in cooperation with Indian tribes and the heads of other Federal agencies, determines to be appropriate.
(3) Feasibility study and reports
(A) In general
On the request of an Indian tribe, the Secretary shall conduct a study on, and provide to the Indian tribe a report describing, the feasibility of a water resources development project described in paragraph (1).
(B) Recommendation
A report under subparagraph (A) may, but shall not be required to, contain a recommendation on a specific water resources development project.
(4) Design and construction
(A) In general
The Secretary may carry out the design and construction of a water resources development project, or separable element of a project, described in paragraph (1) that the Secretary determines is feasible if the Federal share of the cost of the project or separable element is not more than $12,500,000.
(B) Specific authorization
If the Federal share of the cost of the project or separable element described in subparagraph (A) is more than $12,500,000, the Secretary may only carry out the project or separable element if Congress enacts a law authorizing the Secretary to carry out the project or separable element.
(c) Consultation and coordination with Secretary of the Interior
(1) In general
In recognition of the unique role of the Secretary of the Interior concerning trust responsibilities with Indian tribes and in recognition of mutual trust responsibilities, the Secretary shall consult with the Secretary of the Interior concerning an activity conducted under subsection (b).
(2) Integration of activities
The Secretary shall—
(A) integrate civil works activities of the Department of the Army with activities of the Department of the Interior to avoid conflicts, duplications of effort, or unanticipated adverse effects on Indian tribes; and
(B) consider the authorities and programs of the Department of the Interior and other Federal agencies in any recommendations concerning an activity conducted under subsection (b).
(d) Cost sharing
(1) Ability to pay
(A) In general
Any cost-sharing agreement for an activity conducted under subsection (b) shall be subject to the ability of the non-Federal interest to pay.
(B) Use of procedures
(i) In general
The ability of a non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary.
(ii) Determination
Not later than 180 days after June 10, 2014, the Secretary shall issue guidance on the procedures described in clause (i).
(2) Credit
The Secretary may credit toward the non-Federal share of the costs of an activity conducted under subsection (b) the cost of services, studies, supplies, or other in-kind contributions provided by the non-Federal interest.
(3) Sovereign immunity
The Secretary shall not require an Indian tribe to waive the sovereign immunity of the Indian tribe as a condition to entering into a cost-sharing agreement under this subsection.
(4) Water resources development projects
(A) In general
The non-Federal share of costs for the study of a water resources development project described in subsection (b)(1) shall be 50 percent.
(B) Other costs
The non-Federal share of costs of design and construction of a project described in subparagraph (A) shall be assigned to the appropriate project purposes described in
(5) Water-related planning activities
(A) In general
The non-Federal share of costs of a watershed and river basin assessment conducted under subsection (b) shall be 25 percent.
(B) Other costs
The non-Federal share of costs of other water-related planning activities described in subsection (b)(1) shall be 50 percent.
(e) Restrictions
The Secretary is authorized to carry out activities under this section for fiscal years 2015 through 2024.
(
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. (b)(4).
"(A)
"(B)
2016—Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3), (4).
Subsec. (c)(1).
Subsec. (c)(2)(B).
Subsec. (d)(1)(A).
Subsec. (d)(2) to (5).
2014—Subsec. (d)(1)(B).
Subsec. (e).
2007—Subsec. (b)(1).
Subsec. (b)(1)(B).
Subsec. (b)(2).
Subsec. (e).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
SUBCHAPTER V—GENERAL PROVISIONS
§2280. Maximum cost of projects
(a) In general
In order to insure against cost overruns, each total cost set forth with respect to a project for water resources development and conservation and related purposes authorized to be carried out by the Secretary in this Act or in a law enacted after the date of the enactment of this Act, including the Water Resources Development Act of 1988, or in an amendment made by this Act or any later law with respect to such a project shall be the maximum cost of that project, except that such maximum amount—
(1) may be increased by the Secretary for modifications which do not materially alter the scope or functions of the project as authorized, but not by more than 20 percent of the total cost stated for the project in this Act, in any later law, or in an amendment made by this Act or any later law; and
(2) shall be automatically increased for—
(A) changes in construction costs applied to unconstructed features (including real property acquisitions, preconstruction studies, planning, engineering, and design) from the date of enactment of this Act or any later law (unless otherwise specified) as indicated by engineering and other appropriate cost indexes; and
(B) additional studies, modifications, and actions (including mitigation and other environmental actions) authorized by this Act or any later law or required by changes in Federal law.
(b) Contributions by non-Federal interests
Notwithstanding subsection (a), in accordance with
(
References in Text
This Act, referred to in subsec. (a), is
The date of enactment of this Act, referred to in subsec. (a), is the date of enactment of
The Water Resources Development Act of 1988, referred to in subsec. (a), is
Amendments
2014—
1988—
Par. (1).
Par. (2).
§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.
(
Amendments
2007—
1996—
1990—
Rural Project Evaluation and Selection Criteria
§2282. Feasibility reports
(a) Preparation of reports
(1) In general
In the case of any water resources project-related study authorized to be undertaken by the Secretary that results in recommendations concerning a project or the operation of a project and that requires specific authorization by Congress in law or otherwise, the Secretary shall prepare a feasibility report, subject to
(2) Contents of feasibility reports
A feasibility report shall describe, with reasonable certainty, the economic, environmental, and social benefits and detriments of the recommended plan and alternative plans considered by the Secretary and the engineering features (including hydrologic and geologic information), the public acceptability, and the purposes, scope, and scale of the recommended plan. A feasibility report shall also include the views of other Federal agencies and non-Federal agencies with regard to the recommended plan, a description of a nonstructural alternative to the recommended plan when such plan does not have significant nonstructural features, and a description of the Federal and non-Federal participation in such plan, and shall demonstrate that States, other non-Federal interests, and Federal agencies have been consulted in the development of the recommended plan. A feasibility report shall include a preliminary analysis of the Federal interest and the costs, benefits, and environmental impacts of the project.
(3) Applicability
This subsection shall not apply to—
(A) any study with respect to which a report has been submitted to Congress before November 17, 1986;
(B) any study for a project, which project is authorized for construction by this Act and is not subject to section 903(b); 1
(C) any study for a project which does not require specific authorization by Congress in law or otherwise; and
(D) general studies not intended to lead to recommendation of a specific water resources project.
(4) Feasibility report defined
In this subsection, the term "feasibility report" means each feasibility report, and any associated environmental impact statement and mitigation plan, prepared by the Corps of Engineers for a water resources project. The term includes a project implementation report prepared under title VI of the Water Resources Development Act of 2000 (
(b) 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).
(
References in Text
This Act, referred to in subsec. (a)(3)(B), is
Section 903(b), referred to in subsec. (a)(3)(B), is section 903(b) of
The Water Resources Development Act of 2000, referred to in subsec. (a)(4), is
Amendments
2014—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (b).
Subsec. (g).
2007—Subsec. (a).
Subsec. (b).
Subsecs. (c) to (f).
2000—Subsec. (e).
Natural Infrastructure
Continuation of Studies
Expedited Completion of Reports
"(1) expedite the completion of any on-going feasibility study for a project initiated before the date of enactment of this Act [June 10, 2014]; and
"(2) if the Secretary determines that the project is justified in a completed report, proceed directly to preconstruction planning, engineering, and design of the project in accordance with section 910 of the Water Resources Development Act of 1986 (
National Academy of Sciences Study
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(1)
"(2)
"(A) the cost, time requirements, and other considerations relating to the implementation of independent peer review; and
"(B) objective criteria that may be used to determine the most effective application of independent peer review to feasibility reports for each type of water resources project.
"(3)
"(A) the results of the study conducted under paragraphs (1) and (2); and
"(B) in light of the results of the study, specific recommendations, if any, on a program for implementing independent peer review of feasibility reports.
"(4)
"(c)
"(1)
"(A) a review of state-of-the-art methods;
"(B) a review of the methods currently used by the Secretary;
"(C) a review of a sample of instances in which the Secretary has applied the methods identified under subparagraph (B) in the analysis of each type of water resources project; and
"(D) a comparative evaluation of the basis and validity of state-of-the-art methods identified under subparagraph (A) and the methods identified under subparagraphs (B) and (C).
"(2)
"(A) the results of the study conducted under paragraph (1); and
"(B) in light of the results of the study, specific recommendations for modifying any of the methods currently used by the Secretary for conducting economic and environmental analyses of water resources projects.
"(3)
Engineering Consulting Services
1 See References in Text note below.
2 So in original. Probably should be preceded by "the".
§2282a. Planning
(a) Omitted
(b) Planning process improvements
The Chief of Engineers—
(1) shall adopt a risk analysis approach to project cost estimates for water resources projects; and
(2) not later than one year after November 8, 2007, shall—
(A) issue procedures for risk analysis for cost estimation for water resources projects; and
(B) submit to Congress a report that includes any recommended amendments to
(c) Benchmarks
(1) In general
Not later than 12 months after November 8, 2007, the Chief of Engineers shall establish benchmarks for determining the length of time it should take to conduct a feasibility study for a water resources project and its associated review process under the National Environmental Policy Act of 1969 (
(2) Benchmark goals
The Chief of Engineers shall establish, to the extent practicable, under paragraph (1) benchmark goals for completion of feasibility studies for water resources projects generally within 2 years. In the case of feasibility studies that the Chief of Engineers determines may require additional time based on the project type, size, cost, or complexity, the benchmark goal for completion shall be generally within 4 years.
(d) Calculation of benefits and costs for flood damage reduction projects
A feasibility study for a project for flood damage reduction shall include, as part of the calculation of benefits and costs—
(1) a calculation of the residual risk of flooding following completion of the proposed project;
(2) a calculation of the residual risk of loss of human life and residual risk to human safety following completion of the proposed project;
(3) a calculation of any upstream or downstream impacts of the proposed project; and
(4) calculations to ensure that the benefits and costs associated with structural and nonstructural alternatives are evaluated in an equitable manner.
(e) Centers of specialized planning expertise
(1) Establishment
The Secretary may establish centers of expertise to provide specialized planning expertise for water resources projects to be carried out by the Secretary in order to enhance and supplement the capabilities of the districts of the Corps of Engineers.
(2) Duties
A center of expertise established under this subsection shall—
(A) provide technical and managerial assistance to district commanders of the Corps of Engineers for project planning, development, and implementation;
(B) provide agency peer reviews of new major scientific, engineering, or economic methods, models, or analyses that will be used to support decisions of the Secretary with respect to feasibility studies for water resources projects;
(C) provide support for independent peer review panels under
(D) carry out such other duties as are prescribed by the Secretary.
(3) Deep draft navigation planning center of expertise
(A) In general
The Secretary shall consolidate deep draft navigation expertise within the Corps of Engineers into a deep draft navigation planning center of expertise.
(B) List
Not later than 60 days after the date of the consolidation required under subparagraph (A), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a list of the grade levels and expertise of each of the personnel assigned to the center described in subparagraph (A).
(f) Completion of Corps of Engineers reports
(1) Alternatives
(A) In general
Feasibility and other studies and assessments for a water resources project shall include recommendations for alternatives—
(i) that, as determined in coordination with the non-Federal interest for the project, promote integrated water resources management; and
(ii) for which the non-Federal interest is willing to provide the non-Federal share for the studies or assessments.
(B) Constraints
The alternatives contained in studies and assessments described in subparagraph (A) shall not be constrained by budgetary or other policy.
(C) Reports of Chief of Engineers
The reports of the Chief of Engineers shall identify any recommendation that is not the best technical solution to water resource needs and problems and the reason for the deviation.
(2) Report completion
The completion of a report of the Chief of Engineers for a water resources project—
(A) shall not be delayed while consideration is being given to potential changes in policy or priority for project consideration; and
(B) shall be submitted, on completion, to—
(i) the Committee on Environment and Public Works of the Senate; and
(ii) the Committee on Transportation and Infrastructure of the House of Representatives.
(g) Completion review
(1) In general
Except as provided in paragraph (2), not later than 120 days after the date of completion of a report of the Chief of Engineers that recommends to Congress a water resources project, the Secretary shall—
(A) review the report; and
(B) provide any recommendations of the Secretary regarding the water resources project to Congress.
(2) Prior reports
Not later than 180 days after November 8, 2007, with respect to any report of the Chief of Engineers recommending a water resources project that is complete prior to November 8, 2007, the Secretary shall complete review of, and provide recommendations to Congress for, the report in accordance with paragraph (1).
(
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (c)(1), is
Codification
Section is comprised of section 2033 of
Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2014—Subsec. (e)(3).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2282b. Submission of reports to Congress
Beginning on January 17, 2014, and hereafter, not later than 120 days after the date of the Chief of Engineers Report on a water resource matter, the Assistant Secretary of the Army (Civil Works) shall submit the report to the appropriate authorizing and appropriating committees of the Congress.
(
Codification
Section was enacted as part of the Energy and Water Development and Related Agencies Appropriations Act, 2014, and also as part of the Consolidated Appropriations Act, 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2282c. Vertical integration and acceleration of studies
(a) In general
To the extent practicable, a feasibility study initiated by the Secretary, after June 10, 2014, under
(1) result in the completion of a final feasibility report not later than 3 years after the date of initiation;
(2) have a maximum Federal cost of $3,000,000; and
(3) ensure that personnel from the district, division, and headquarters levels of the Corps of Engineers concurrently conduct the review required under that section.
(b) Extension
If the Secretary determines that a feasibility study described in subsection (a) will not be conducted in accordance with subsection (a), the Secretary, not later than 30 days after the date of making the determination, shall—
(1) prepare an updated feasibility study schedule and cost estimate;
(2) notify the non-Federal feasibility cost-sharing partner that the feasibility study has been delayed; and
(3) provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives as to the reasons the requirements of subsection (a) are not attainable.
(c) 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
(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.
(
References in Text
Section 1005, referred to in subsec. (e)(1), is section 1005 of
Codification
Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2018—Subsec. (d)(4).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2282d. Annual report to Congress
(a) In general
Not later than February 1 of each year, the Secretary shall develop and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an annual report, to be entitled "Report to Congress on Future Water Resources Development", that identifies the following:
(1) Feasibility reports
Each feasibility report that meets the criteria established in subsection (c)(1)(A).
(2) Proposed feasibility studies
Any proposed feasibility study submitted to the Secretary by a non-Federal interest pursuant to subsection (b) that meets the criteria established in subsection (c)(1)(A).
(3) Proposed modifications
Any proposed modification to an authorized water resources development project or feasibility study that meets the criteria established in subsection (c)(1)(A) that—
(A) is submitted to the Secretary by a non-Federal interest pursuant to subsection (b); or
(B) is identified by the Secretary for authorization.
(4) Programmatic modifications
Any programmatic modification for an environmental infrastructure assistance program.
(b) Requests for proposals
(1) Publication
Not later than May 1 of each year, the Secretary shall publish in the Federal Register a notice requesting proposals from non-Federal interests for proposed feasibility studies, proposed modifications to authorized water resources development projects and feasibility studies, and proposed modifications for an environmental infrastructure program to be included in the annual report.
(2) Deadline for requests
The Secretary shall include in each notice required by this subsection a requirement that non-Federal interests submit to the Secretary any proposals described in paragraph (1) by not later than 120 days after the date of publication of the notice in the Federal Register in order for the proposals to be considered for inclusion in the annual report.
(3) Notification
On the date of publication of each notice required by this subsection, the Secretary shall—
(A) make the notice publicly available, including on the Internet; and
(B) provide written notification of the publication to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.
(c) Contents
(1) Feasibility reports, proposed feasibility studies, and proposed modifications
(A) Criteria for inclusion in report
The Secretary shall include in the annual report only those feasibility reports, proposed feasibility studies, and proposed modifications to authorized water resources development projects and feasibility studies that—
(i) are related to the missions and authorities of the Corps of Engineers;
(ii) require specific congressional authorization, including by an Act of Congress;
(iii) have not been congressionally authorized;
(iv) have not been included in any previous annual report; and
(v) if authorized, could be carried out by the Corps of Engineers.
(B) Description of benefits
(i) Description
The Secretary shall describe in the annual report, to the extent applicable and practicable, for each proposed feasibility study and proposed modification to an authorized water resources development project or feasibility study included in the annual report, the benefits, as described in clause (ii), of each such study or proposed modification (including the water resources development project that is the subject of the proposed feasibility study or the proposed modification to an authorized feasibility study).
(ii) Benefits
The benefits (or expected benefits, in the case of a proposed feasibility study) described in this clause are benefits to—
(I) the protection of human life and property;
(II) improvement to transportation;
(III) the national 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
(B) Inclusions
The term "feasibility report" includes—
(i) a report described in
(ii) where applicable, any associated report of the Chief of Engineers.
(3) Feasibility study
The term "feasibility study" has the meaning given that term in
(4) Non-Federal interest
The term "non-Federal interest" has the meaning given that term in
(5) Water resources development project
The term "water resources development project" includes a project under an environmental infrastructure assistance program if authorized before December 16, 2016.
(
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).
Subsec. (b)(1).
Subsec. (c)(4).
Subsecs. (d) to (g).
2016—Subsec. (f)(5).
Dissemination of Information
"(a)
"(1) Congress plays a central role in identifying, prioritizing, and authorizing vital water resources infrastructure activities throughout the United States.
"(2) The Water Resources Reform and Development Act of 2014 (
"(3) Section 7001 of the Water Resources Reform and Development Act of 2014 (
"(A) publish a notice in the Federal Register that requests from non-Federal interests proposed feasibility studies and proposed modifications to authorized water resources development projects and feasibility studies for inclusion in the report; and
"(B) review the proposals submitted and include in the report those proposed feasibility studies and proposed modifications that meet the criteria for inclusion established under such section 7001.
"(4) Congress will use the information provided in the annual Report to Congress on Future Water Resources Development to determine authorization needs and priorities for purposes of water resources development legislation.
"(5) To ensure that Congress can gain a thorough understanding of the water resources development needs and priorities of the United States, it is important that the Secretary take sufficient steps to ensure that non-Federal interests are made aware of the new annual report process, including the need for non-Federal interests to submit proposals during the Secretary's annual request for proposals in order for such proposals to be eligible for consideration by Congress.
"(b)
"(1) 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
§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.
(
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
§2283. Fish and wildlife mitigation
(a) Steps to be taken prior to or concurrently with construction
(1) In the case of any water resources project which is authorized to be constructed by the Secretary before, on, or after November 17, 1986, construction of which has not commenced as of November 17, 1986, and which necessitates the mitigation of fish and wildlife losses, including the acquisition of lands or interests in lands to mitigate losses to fish and wildlife, as a result of such project, such mitigation, including acquisition of the lands or interests—
(A) shall be undertaken or acquired before any construction of the project (other than such acquisition) commences, or
(B) shall be undertaken or acquired concurrently with lands and interests in lands for project purposes (other than mitigation of fish and wildlife losses),
whichever the Secretary determines is appropriate, except that any physical construction required for the purposes of mitigation may be undertaken concurrently with the physical construction of such project.
(2) For the purposes of this subsection, any project authorized before November 17, 1986, on which more than 50 percent of the land needed for the project, exclusive of mitigation lands, has been acquired shall be deemed to have commenced construction under this subsection.
(b) Acquisition of lands or interests in lands for mitigation
(1) After consultation with appropriate Federal and non-Federal agencies, the Secretary is authorized to mitigate damages to fish and wildlife resulting from any water resources project under his jurisdiction, whether completed, under construction, or to be constructed. Such mitigation may include the acquisition of lands, or interests therein, except that—
(A) acquisition under this paragraph shall not be by condemnation in the case of projects completed as of November 17, 1986, or on which at least 10 percent of the physical construction on the project has been completed as of November 17, 1986; and
(B) acquisition of water, or interests therein, under this paragraph, shall not be by condemnation.
The Secretary, shall, under the terms of this paragraph, obligate no more than $30,000,000 in any fiscal year. With respect to any water resources project, the authority under this subsection shall not apply to measures that cost more than $7,500,000 or 10 percent of the cost of the project, whichever is greater.
(2) Whenever, after his review, the Secretary determines that such mitigation features under this subsection are likely to require condemnation under subparagraph (A) or (B) of paragraph (1) of this subsection, the Secretary shall transmit to Congress a report on such proposed modification, together with his recommendations.
(c) Allocation of mitigation costs
Costs incurred after November 17, 1986, including lands, easements, rights-of-way, and relocations, for implementation and operation, maintenance, and rehabilitation to mitigate damages to fish and wildlife shall be allocated among authorized project purposes in accordance with applicable cost allocation procedures, and shall be subject to cost sharing or reimbursement to the same extent as such other project costs are shared or reimbursed, except that when such costs are covered by contracts entered into prior to November 17, 1986, such costs shall not be recovered without the consent of the non-Federal interests or until such contracts are complied with or renegotiated.
(d) Mitigation plans as part of project proposals
(1) In general
After November 17, 1986, the Secretary shall not submit any proposal for the authorization of any water resources project to Congress in any report, and shall not select a project alternative in any report, unless such report contains (A) a recommendation with a specific plan to mitigate for damages to ecological resources, including terrestrial and aquatic resources, and fish and wildlife losses created by such project, or (B) a determination by the Secretary that such project will have negligible adverse impact on ecological resources and fish and wildlife without the implementation of mitigation measures. Specific mitigation plans shall ensure that impacts to bottomland hardwood forests are mitigated in-kind, and other habitat types are mitigated to not less than in-kind conditions, to the extent possible. If the Secretary determines that mitigation to in-kind conditions is not possible, the Secretary shall identify in the report the basis for that determination and the mitigation measures that will be implemented to meet the requirements of this section and the goals of
(2) Selection and design of mitigation projects
The Secretary shall select and design mitigation projects using a watershed approach to reflect contemporary understanding of the science of mitigating the adverse environmental impacts of water resources projects.
(3) Mitigation requirements
(A) In general
To mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from a water resources project, the Secretary shall ensure that the mitigation plan for each water resources project complies with, at a minimum, the mitigation standards and policies established pursuant to the regulatory programs administered by the Secretary.
(B) Inclusions
A specific mitigation plan for a water resources project under paragraph (1) shall include, at a minimum—
(i) a plan for monitoring the implementation and ecological success of each mitigation measure, including the cost and duration of any monitoring, and, to the extent practicable, a designation of the entities that will be responsible for the monitoring;
(ii) the criteria for ecological success by which the mitigation will be evaluated and determined to be successful based on replacement of lost functions and values of the habitat, including hydrologic and vegetative characteristics;
(iii) for projects where mitigation will be carried out by the Secretary—
(I) a description of the land and interest in land to be acquired for the mitigation plan;
(II) the basis for a determination that the land and interests are available for acquisition; and
(III) a determination that the proposed interest sought does not exceed the minimum interest in land necessary to meet the mitigation requirements for the project;
(iv) for projects where mitigation will be carried out through a third party mitigation arrangement in accordance with subsection (i)—
(I) a description of the third party mitigation instrument to be used; and
(II) the basis for a determination that the mitigation instrument can meet the mitigation requirements for the project;
(v) a description of—
(I) the types and amount of restoration activities to be conducted;
(II) the physical action to be undertaken to achieve the mitigation objectives within the watershed in which such losses occur and, in any case in which the mitigation will occur outside the watershed, a detailed explanation for undertaking the mitigation outside the watershed; and
(III) the functions and values that will result from the mitigation plan; and
(vi) a contingency plan for taking corrective actions in cases in which monitoring demonstrates that mitigation measures are not achieving ecological success in accordance with criteria under clause (ii).
(C) Responsibility for monitoring
In any case in which it is not practicable to identify in a mitigation plan for a water resources project the entity responsible for monitoring at the time of a final report of the Chief of Engineers or other final decision document for the project, such entity shall be identified in the partnership agreement entered into with the non-Federal interest under
(4) Determination of success
(A) In general
A mitigation plan under this subsection shall be considered to be successful at the time at which the criteria under paragraph (3)(B)(ii) are achieved under the plan, as determined by monitoring under paragraph (3)(B)(i).
(B) Consultation
In determining whether a mitigation plan is successful under subparagraph (A), the Secretary shall consult annually with appropriate Federal agencies and each State in which the applicable project is located on at least the following:
(i) The ecological success of the mitigation as of the date on which the report is submitted.
(ii) The likelihood that the mitigation will achieve ecological success, as defined in the mitigation plan.
(iii) The projected timeline for achieving that success.
(iv) Any recommendations for improving the likelihood of success.
(5) Monitoring
Mitigation monitoring shall continue until it has been demonstrated that the mitigation has met the ecological success criteria.
(e) First enhancement costs as Federal costs
In those cases when the Secretary, as part of any report to Congress, recommends activities to enhance fish and wildlife resources, the first costs of such enhancement shall be a Federal cost when—
(1) such enhancement provides benefits that are determined to be national, including benefits to species that are identified by the National Marine Fisheries Service as of national economic importance, species that are subject to treaties or international convention to which the United States is a party, and anadromous fish;
(2) such enhancement is designed to benefit species that have been listed as threatened or endangered by the Secretary of the Interior under the terms of the Endangered Species Act, as amended (
(3) such activities are located on lands managed as a national wildlife refuge.
When benefits of enhancement do not qualify under the preceding sentence, 25 percent of such first costs of enhancement shall be provided by non-Federal interests under a schedule of reimbursement determined by the Secretary. Not more than 80 percent of the non-Federal share of such first costs may be satisfied through in-kind contributions, including facilities, supplies, and services that are necessary to carry out the enhancement project. The non-Federal share of operation, maintenance, and rehabilitation of activities to enhance fish and wildlife resources shall be 25 percent.
(f) National benefits from enhancement measures for Atchafalaya Floodway System and Mississippi Delta Region projects
Fish and wildlife enhancement measures carried out as part of the project for Atchafalaya Floodway System, Louisiana, authorized by
(g) Fish and Wildlife Coordination Act supplementation
The provisions of subsections (a), (b), and (d) shall be deemed to supplement the responsibility and authority of the Secretary pursuant to the Fish and Wildlife Coordination Act [
(h) Programmatic mitigation plans
(1) In general
The Secretary may develop programmatic mitigation plans to address the potential impacts to ecological resources, fish, and wildlife associated with existing or future Federal water resources development projects.
(2) Use of mitigation plans
The Secretary shall, to the maximum extent practicable, use programmatic mitigation plans developed in accordance with this subsection to guide the development of a mitigation plan under subsection (d).
(3) Non-Federal plans
The Secretary shall, to the maximum extent practicable and subject to all conditions of this subsection, use programmatic environmental plans developed by a State, a body politic of the State, which derives its powers from a State constitution, a government entity created by State legislation, or a local government, that meet the requirements of this subsection to address the potential environmental impacts of existing or future water resources development projects.
(4) Scope
A programmatic mitigation plan developed by the Secretary or an entity described in paragraph (3) to address potential impacts of existing or future water resources development projects shall, to the maximum extent practicable—
(A) be developed on a regional, ecosystem, watershed, or statewide scale;
(B) include specific goals for aquatic resource and fish and wildlife habitat restoration, establishment, enhancement, or preservation;
(C) identify priority areas for aquatic resource and fish and wildlife habitat protection or restoration;
(D) include measures to protect or restore habitat connectivity;
(E) encompass multiple environmental resources within a defined geographical area or focus on a specific resource, such as aquatic resources or wildlife habitat; and
(F) address impacts from all projects in a defined geographical area or focus on a specific type of project.
(5) Consultation
The scope of the plan shall be determined by the Secretary or an entity described in paragraph (3), as appropriate, in consultation with the agency with jurisdiction over the resources being addressed in the environmental mitigation plan.
(6) Contents
A programmatic environmental mitigation plan may include—
(A) an assessment of the condition of environmental resources in the geographical area covered by the plan, including an assessment of recent trends and any potential threats to those resources;
(B) an assessment of potential opportunities to improve the overall quality of environmental resources in the geographical area covered by the plan through strategic mitigation for impacts of water resources development projects;
(C) standard measures for mitigating certain types of impacts, including impacts to habitat connectivity;
(D) parameters for determining appropriate mitigation for certain types of impacts, such as mitigation ratios or criteria for determining appropriate mitigation sites;
(E) adaptive management procedures, such as protocols that involve monitoring predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring;
(F) acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources; and
(G) any offsetting benefits of self-mitigating projects, such as ecosystem or resource restoration and protection.
(7) Process
Before adopting a programmatic environmental mitigation plan for use under this subsection, the Secretary shall—
(A) for a plan developed by the Secretary—
(i) make a draft of the plan available for review and comment by applicable environmental resource agencies and the public; and
(ii) consider any comments received from those agencies and the public on the draft plan; and
(B) for a plan developed under paragraph (3), determine, not later than 180 days after receiving the plan, whether the plan meets the requirements of paragraphs (4) through (6) and was made available for public comment.
(8) Integration with other plans
A programmatic environmental mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, and land use plans.
(9) Consideration in project development and permitting
If a programmatic environmental mitigation plan has been developed under this subsection, any Federal agency responsible for environmental reviews, permits, or approvals for a water resources development project may use the recommendations in that programmatic environmental mitigation plan when carrying out the responsibilities of the agency under the National Environmental Policy Act of 1969 (
(10) Preservation of existing authorities
Nothing in this subsection limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969 (
(11) Effect
Nothing in this subsection—
(A) requires the Secretary to undertake additional mitigation for existing projects for which mitigation has already been initiated, including the addition of fish passage to an existing water resources development project; or
(B) affects the mitigation responsibilities of the Secretary under any other provision of law.
(i) Third-party mitigation arrangements
(1) Eligible activities
In accordance with all applicable Federal laws (including regulations), mitigation efforts carried out under this section may include—
(A) participation in mitigation banking or other third-party mitigation arrangements, such as—
(i) the purchase of credits from commercial or State, regional, or local agency-sponsored mitigation banks; and
(ii) the purchase of credits from in-lieu fee mitigation programs; and
(B) contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetlands if the Secretary determines that the contributions will ensure that the mitigation requirements of this section and the goals of
(2) Inclusion of other activities
The banks, programs, and efforts described in paragraph (1) include any banks, programs, and efforts developed in accordance with applicable law (including regulations).
(3) Terms and conditions
In carrying out natural habitat and wetlands mitigation efforts under this section, contributions to the mitigation effort may—
(A) take place concurrent with, or in advance of, the commitment of funding to a project; and
(B) occur in advance of project construction only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and water resources development planning processes.
(4) Preference
At the request of the non-Federal project sponsor, preference may be given, to the maximum extent practicable, to mitigating an environmental impact through the use of a mitigation bank, in-lieu fee, or other third-party mitigation arrangement, if the use of credits from the mitigation bank or in-lieu fee, or the other third-party mitigation arrangement for the project has been approved by the applicable Federal agency.
(j) Use of funds
(1) In general
The Secretary, with the consent of the applicable non-Federal interest, may use funds made available for preconstruction engineering and design after authorization of project construction to satisfy mitigation requirements through third-party arrangements or to acquire interests in land necessary for meeting mitigation requirements under this section.
(2) Notification
Prior to the expenditure of any funds for a project pursuant to paragraph (1), the Secretary shall notify the Committee on Appropriations and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Appropriations and the Committee on Environment and Public Works of the Senate.
(k) Measures
The Secretary shall consult with interested members of the public, the Director of the United States Fish and Wildlife Service, the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration, States, including State fish and game departments, and interested local governments to identify standard measures under subsection (h)(6)(C) that reflect the best available scientific information for evaluating habitat connectivity.
(
References in Text
The Endangered Species Act, as amended, referred to in subsec. (e)(2), probably means the Endangered Species Act of 1973,
The Flood Control Act of 1965, referred to in subsec. (f), is title II of
The Fish and Wildlife Coordination Act, referred to in subsec. (g), is act Mar. 10, 1934, ch. 55,
The National Environmental Policy Act of 1969, referred to in subsec. (h)(9), (10), is
Amendments
2016—Subsec. (h)(4)(D) to (F).
Subsec. (h)(6)(C).
Subsec. (h)(11).
Subsecs. (j), (k).
2014—Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (d)(3)(A).
Subsec. (d)(3)(B)(iii) to (vi).
Subsecs. (h), (i).
2007—Subsec. (d)(1).
Subsec. (d)(3) to (5).
2000—Subsec. (d).
1999—Subsec. (e).
1992—Subsec. (c).
Applicability
Concurrent Mitigation
"(1)
"(A)
"(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)
"(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)
§2283a. Status report
(1) In general
Concurrent with the President's submission to Congress of the President's request for appropriations for the Civil Works Program for a fiscal year, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the status of construction of projects that require mitigation under
(2) Projects included
The status report shall include the status of—
(A) all projects that are under construction as of the date of the report;
(B) all projects for which the President requests funding for the next fiscal year; and
(C) all projects that have undergone or completed construction, but have not completed the mitigation required under
(3) Information included
In reporting the status of all projects included in the report, the Secretary shall—
(A) use a uniform methodology for determining the status of all projects included in the report;
(B) use a methodology that describes both a qualitative and quantitative status for all projects in the report; and
(C) provide specific dates for participation in the consultations required under
(4) Availability of information
The Secretary shall make information contained in the status report available to the public, including on the Internet.
(
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).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2283b. Clarification of mitigation authority
(a) In general
The Secretary may carry out measures to improve fish species habitat within the boundaries and downstream of a water resources project constructed by the Secretary that includes a fish hatchery if the Secretary—
(1) has been explicitly authorized to compensate for fish losses associated with the project; and
(2) determines that the measures are—
(A) feasible;
(B) consistent with authorized project purposes and the fish hatchery; and
(C) in the public interest.
(b) Cost sharing
(1) In general
Subject to paragraph (2), the non-Federal interest shall contribute 35 percent of the total cost of carrying out activities under this section, including the costs relating to the provision or acquisition of required land, easements, rights-of-way, dredged material disposal areas, and relocations.
(2) Operation and maintenance
The non-Federal interest shall contribute 100 percent of the costs of operation, maintenance, replacement, repair, and rehabilitation of the measures carried out under this section.
(
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
§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).
(
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
§2284. Benefits and costs attributable to environmental measures
In the evaluation by the Secretary of benefits and costs of a water resources project, the benefits attributable to measures included in a project for the purpose of environmental quality, including improvement of the environment and fish and wildlife enhancement, shall be deemed to be at least equal to the costs of such measures.
(
§2284a. Benefits to navigation
In evaluating potential improvements to navigation and the maintenance of navigation projects, the Secretary shall consider, and include for purposes of project justification, economic benefits generated by cruise ships as commercial navigation benefits.
(
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
§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.
(
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
§2285. Environmental Protection and Mitigation Fund
There is established an Environmental Protection and Mitigation Fund. There is authorized to be appropriated to such fund $35,000,000 for fiscal years beginning after September 30, 1986. Amounts in the fund 1 shall be available for undertaking, in advance of construction of any water resources project authorized to be constructed by the Secretary, such measures authorized as part of such project, including the acquisition of lands and interests therein, as may be necessary to ensure that project-induced losses to fish and wildlife production and habitat will be mitigated. The Secretary shall reimburse the Fund for any amounts expended under this section for a water resources project from the first appropriations made for construction, including planning and designing, of such project.
(
1 So in original. Probably should be capitalized.
§2286. Acceptance of certain funds for mitigation
The Secretary is authorized to accept funds from any entity, public or private, in accordance with the Pacific Northwest Electric Power Planning and Conservation Act [
(
References in Text
The Pacific Northwest Electric Power Planning and Conservation Act, referred to in text, is
§2287. Continued planning and investigations
(a) Pre-authorization planning and engineering
After the Chief of Engineers transmits his recommendations for a water resources development project to the Secretary for transmittal to the Congress, as authorized in
(b) Omitted
(c) Authorizations as additions to other authorizations
The authorization made by this section shall be in addition to any other authorizations for planning, engineering, and design of water resources development projects and shall not be construed as a limitation on any other such authorization.
(
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
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2288. Repealed. Pub. L. 113–121, title I, §1004, June 10, 2014, 128 Stat. 1199
Section,
§2289. Urban and rural flood control frequency
In the preparation of feasibility reports for projects for flood damage prevention in urban and rural areas, the Secretary may consider and evaluate measures to reduce or eliminate damages from flooding without regard to frequency of flooding, drainage area, and amount of runoff. This section shall apply with respect to any project, or separable element thereof, the Federal share of the cost of which is less than $3,000,000.
(
§2289a. Consideration of measures
(a) Definitions
In this section, the following definitions apply:
(1) Natural feature
The term "natural feature" means a feature that is created through the action of physical, geological, biological, and chemical processes over time.
(2) Nature-based feature
The term "nature-based feature" means a feature that is created by human design, engineering, and construction to provide risk reduction by acting in concert with natural processes.
(b) Requirement
In studying the feasibility of projects for flood risk management, hurricane and storm damage reduction, and ecosystem restoration the Secretary shall, with the consent of the non-Federal sponsor of the feasibility study, consider, as appropriate—
(1) natural features;
(2) nature-based features;
(3) nonstructural measures; and
(4) structural measures.
(c) Report to Congress
(1) In general
Not later than February 1, 2020, and 5 and 10 years thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the implementation of subsection (b).
(2) Contents
The report under paragraph (1) shall include, at a minimum, the following:
(A) A description of guidance or instructions issued, and other measures taken, by the Secretary and the Chief of Engineers to implement subsection (b).
(B) An assessment of the costs, benefits, impacts, and trade-offs associated with measures recommended by the Secretary for coastal risk reduction and the effectiveness of those measures.
(C) A description of any statutory, fiscal, or regulatory barriers to the appropriate consideration and use of a full array of measures for coastal risk reduction.
(
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).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 1002 of
§2290. Flood control in Trust Territory of the Pacific Islands
The Secretary is authorized to use the authority contained in section 205 of the Flood Control Act of 1948 (
(
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2291. Federal Project Repayment District
(a) The Secretary may enter into a contract providing for the payment or recovery of an appropriate share of the costs of a project under his responsibility with a Federal Project Repayment District or other political subdivision of a State prior to the construction, operation, improvement, or financing of such project. The Federal Project Repayment District shall include lands and improvements which receive identifiable benefits from the construction or operation of such project. Such districts shall be established in accordance with State law, shall have specific boundaries which may be changed from time to time based upon further evaluations of benefits, and shall have the power to recover benefits through any cost-recovery approach that is consistent with State law and satisfies the applicable cost-recovery requirement under subsection (b).
(b) Prior to execution of an agreement pursuant to subsection (a) of this section, the Secretary shall require and approve a study from the State or political subdivision demonstrating that the revenues to be derived from a contract under this section, or an agreement with a Federal Project Repayment District, will be sufficient to equal or exceed the cost recovery requirements over the term of repayment required by Federal law.
(
Amendments
1988—Subsec. (a).
§2292. Surveying and mapping
Any surveying or mapping services to be performed in connection with a water resources project which is or has been authorized to be undertaken by the Secretary shall be procured in accordance with title IX of the Federal Property and Administrative Services Act of 1949.1
(
References in Text
The Federal Property and Administrative Services Act of 1949, referred to in text, is act June 30, 1949, ch. 288,
Geomatic Data
"(a)
"(b)
"(c)
"(1) requires the Secretary to accept information that the Secretary determines does not meet the guidance developed under this section; or
"(2) changes the current statutory or regulatory requirements of the Corps of Engineers."
1 See References in Text note below.
§2293. Reprogramming during national emergencies
(a) Termination or deferment of civil works projects; application of resources to national defense projects
In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [
(b) Termination of state of war or national emergency
The Secretary shall immediately notify the appropriate committees of Congress of any actions taken pursuant to the authorities provided by this section, and cease to exercise such authorities not later than 180 calendar days after the termination of the state of war or national emergency, whichever occurs later.
(
References in Text
The National Emergencies Act, referred to in subsec. (a), is
§2293a. Reprogramming of funds for projects by Corps of Engineers
None of the funds made available before, on, or after June 15, 2006, in an appropriations Act may be expended to prevent or limit any reprogramming of funds for a project to be carried out by the Corps of Engineers using funds appropriated in any Act making appropriations for energy and water development, based on whether the project was included by the President in the budget transmitted under
(
Codification
Section was enacted as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
§2294. Office of Environmental Policy
The Secretary shall establish in the Directorate of Civil Works of the Office of the Chief of Engineers an Office of Environmental Policy. Such Office shall be responsible for the formulation, coordination, and implementation of all matters concerning environmental quality and policy as they relate to the water resources program of the United States Army Corps of Engineers. Such Office shall, among other things, develop, and monitor compliance with, guidelines for the consideration of environmental quality in formulation and planning of water resources projects carried out by the Secretary, the preparation and coordination of environmental impact statements for such projects, and the coordination with Federal, State, and local agencies of environmental aspects of such projects and regulatory responsibilities of the Secretary.
(
§2295. Compilation of laws; annual reports
(a) Federal laws relating to improvements of rivers and harbors, flood control, beach erosion, and other water resources development
Within one year after November 17, 1986, the laws of the United States relating to the improvement of rivers and harbors, flood control, beach erosion, and other water resources development enacted after November 8, 1966, and before January 1, 1987, shall be compiled under the direction of the Secretary and the Chief of Engineers and printed for the use of the Department of the Army, the Congress, and the general public. The Secretary shall reprint the volumes containing such laws enacted before November 8, 1966. In addition, the Secretary shall include an index in each volume so compiled or reprinted. The Secretary shall transmit copies of each such volume to Congress.
(b) Annual report
The Secretary shall prepare and submit the annual report required by
(c) Biennial reports for each State
The Secretary shall prepare biennially for public information a report for each State containing a description of each water resources project under the jurisdiction of the Secretary in such State and the status of each such project. Each report shall include an index. The report for each State shall be prepared in a separate volume. The reports under this subsection shall be published at the same time and the first such reports shall be published not later than one year after November 17, 1986.
(
Compilation of Laws
"(a)
"(b)
"(c)
"(d)
"(e)
§2296. Acquisition of recreation lands
(a) In the case of any water resources project which is authorized to be constructed by the Secretary before, on, or after November 17, 1986, construction of which has not commenced before November 17, 1986, and which involves the acquisition of lands or interests in lands for recreation purposes, such lands or interests shall be acquired along with the acquisition of lands and interests in lands for other project purposes.
(b) The Secretary is authorized to acquire real property by condemnation, purchase, donation, exchange, or otherwise, as a part of any water resources development project for use for public park and recreation purposes, including but not limited to, real property not contiguous to the principal part of the project.
(
§2297. Operation and maintenance on recreation lands
The Secretary shall not require, under
(
References in Text
The Federal Water Project Recreation Act, referred to in text, is
§2298. Impact of proposed projects on existing recreation facilities
Any report describing a project having recreation benefits that is submitted after November 17, 1986, to the Committee on Environment and Public Works of the Senate or the Committee on Public Works and Transportation of the House of Representatives by the Secretary, or by the Secretary of Agriculture under authority of the Watershed Protection and Flood Protection Act (
(
References in Text
The Watershed Protection and Flood Prevention Act, referred to in text, is act Aug. 4, 1954, ch. 656,
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2299. Acquisition of beach fill
Notwithstanding any other provision of law, in any case in which the use of fill material for beach erosion and beach nourishment is authorized as a purpose of an authorized water resources project, the Secretary is authorized to acquire by purchase, exchange, or otherwise from nondomestic sources and utilize such material for such purposes if such materials are not available from domestic sources for environmental or economic reasons.
(
§2300. Study of Corps capabilities
The Secretary shall study and evaluate the measures necessary to increase the capabilities of the United States Army Corps of Engineers to undertake the planning and construction of water resources projects on an expedited basis and to adequately comply with all requirements of law applicable to the water resources program of the Corps of Engineers. As part of such study the Secretary shall consider appropriate measures to increase reliance on the private sector in the conduct of the water resources program of the Corps of Engineers. The Secretary shall implement such measures as may be necessary to improve the capabilities referred to in the first sentence of this section, including the establishment of increased levels of personnel, changes in project planning and construction procedures designed to lessen the time required for such planning and construction, and procedures for expediting the coordination of water resources projects with Federal, State, and local agencies.
(
GAO Review of Civil Works Program
§§2301, 2302. Omitted
Codification
Section 2301,
Subsec. (a) of section 2302,
Subsec. (b) of section 2302,
§2303. Historical properties
The Secretary is authorized to preserve, restore, and maintain those historic properties located on water resource development project lands under the jurisdiction of the Department of the Army if such properties have been entered into the National Register of Historic Places.
(
§2304. Separability
If any provision of this Act, or the application of any provision of this Act to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this Act, shall not be affected thereby.
(
References in Text
This Act, referred to in text, is
§2305. Use of FMHA funds
Notwithstanding any other provision of law, Federal assistance made available by the Farmers Home Administration may be used to pay the non-Federal share of any other Federal grant-in-aid program for any project for water resources, including water pollution control.
(
§2306. Reports
If any report required to be transmitted under this Act to the Committee on Public Works and Transportation of the House of Representatives or the Committee on Environment and Public Works of the Senate pertains in whole or in part to fish and wildlife mitigation, benthic environmental repercussions, or ecosystem mitigation, the Federal officer required to prepare or transmit that report also shall transmit a copy of the report to the Committee on Merchant Marine and Fisheries of the House of Representatives.
(
References in Text
This Act, referred to in text, is
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
Abolition of House Committee on Merchant Marine and Fisheries
Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of
§2307. Control of ice
(a) Program authority
The Secretary shall undertake a program of research for the control of ice, and to assist communities in breaking up ice, which otherwise is likely to cause or aggravate flood damage or severe streambank erosion.
(b) Assistance to units of local government
The Secretary is further authorized to provide technical assistance to units of local government to implement local plans to control or break up such ice. As part of such authority, the Secretary shall acquire necessary ice-control or ice-breaking equipment, which shall be loaned to units of local government together with operating assistance, where appropriate.
(c) Authorization of appropriations
There is authorized to be appropriated $5,000,000 per fiscal year for each of the fiscal years 1988, 1989, 1990, 1991, and 1992 for purposes of carrying out subsections (a) and (b) of this section, such sums to remain available until expended.
(d) Hardwick, Vermont, demonstration program
To implement further the purposes of this section, the Secretary, in consultation and cooperation with local officials, is authorized and directed to undertake a demonstration program for the control of ice at Hardwick, Vermont. The work authorized by this subsection shall be designed to minimize the danger of flooding due to ice problems in the vicinity of such community. In the design, construction, and location of ice-control structures for this project, full consideration will be given to the recreational, scenic, and environmental values of the reach of river affected by the project, in order to minimize project impacts on these values. Full opportunity shall be given to interested environmental and recreational organizations to participate in such planning. There is authorized to be appropriated $900,000 for fiscal years beginning after September 30, 1986, for the purposes of carrying out this subsection, such sum to remain available until expended.
(e) Salmon, Idaho, experimental program
(1) The Secretary is directed to complete an experimental program placing screens in the Salmon River in the vicinity of Salmon, Idaho, to trap frazil ice, and thus to eliminate flooding caused by ice dams in the river. Within one year of November 17, 1986, the Secretary shall report to the Congress on the feasibility of such experiment, including consideration of any adverse environmental or social effects that could result from such experiment. If, in the Secretary's judgment, such experiment is not feasible or acceptable, the Secretary is authorized to consult with local public interests to develop a plan that is workable and practical, and then to submit such plan to Congress.
(2) There is authorized to be appropriated $1,000,000 for fiscal years beginning after September 30, 1986, for purposes of carrying out this subsection, such sum to remain available until expended.
(f) Wilmington, Illinois, project
(1) To implement further the purposes of this section, the Secretary shall carry out a project for the control of ice on the Kankakee River in the vicinity of Wilmington, Illinois. The Secretary shall report to Congress not later than one year after November 17, 1986, and annually thereafter on the effectiveness of the program under this section with respect to the Kankakee River in the vicinity of Wilmington, Illinois.
(2) There is authorized to be appropriated $3,000,000 for fiscal years beginning after September 30, 1986, for purposes of carrying out this subsection, such sum to remain available until expended.
(g) Cost sharing
Cost sharing applicable to flood control projects under
(h) Report to Congress
Not later than March 1, 1989, the Secretary shall report to the Congress on activities under this section.
(
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (f)(1) of this section relating to the requirement that the Secretary report annually to Congress on the effectiveness of the program under this section, see section 3003 of
§2308. Campgrounds for senior citizens
(a) Establishment and development
The Secretary may establish and develop separate campgrounds for individuals sixty-two years of age or older at any lake or reservoir under the jurisdiction of the Secretary where camping is permitted.
(b) Control of campground use and access
The Secretary may prescribe regulations to control the use of and the access to any separate campground established and developed under subsection (a) of this section.
(c) Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary for fiscal years beginning after September 30, 1986, to carry out subsection (a) of this section.
(d) Campground at Sam Rayburn Dam and Reservoir, Texas
The Secretary shall establish and develop the parcel of land (located in the State of Texas at the Sam Rayburn Dam and Reservoir) described in subsection (g) of this section as a separate campground for individuals sixty-two years of age or older.
(e) Control of use and access to campground at Sam Rayburn Dam and Reservoir, Texas
The Secretary shall prescribe regulations to control the use of and the access to the separate campground established and developed pursuant to subsection (d) of this section.
(f) Authorization of appropriations
There are authorized to be appropriated for fiscal years beginning after September 30, 1986, $600,000 to carry out subsection (d) of this section.
(g) Boundaries of campground at Sam Rayburn Dam and Reservoir, Texas
The parcel of land to be established and developed as a separate campground pursuant to subsection (d) of this section is a tract of land of approximately 50 acres which is located in the county of Angelina in the State of Texas and which is part of the Thomas Hanks survey. The boundary of the parcel begins at a point at the corner furthest west of tract numbered 3420 of the Sam Rayburn Dam and Reservoir:
thence north 81 degrees 30 minutes east, approximately 2,800 feet to a point at the edge of the water;
thence south along the edge of the water approximately 2,600 feet;
thence north 80 degrees 30 minutes west, approximately 1,960 feet to a point at the reentrant corner of tract numbered 3419 of the Sam Rayburn Dam and Reservoir;
thence along the boundary line of tract numbered 3419 north 46 degrees 15 minutes west, 220 feet to a point at the center line of a road at the corner common to tract numbered 3419 and tract numbered 3420;
thence along the southwestern boundary line of tract numbered 3420 north 46 degrees 15 minutes west, 230 feet to a point at the corner furthest east of tract numbered 3424 of the Sam Rayburn Dam and Reservoir;
thence along the boundary line of tract numbered 3424 south 32 degrees 4 minutes west, 420 feet to a point;
thence along the boundary line of tract numbered 3424 north 28 degrees 34 minutes west, 170 feet to a point;
thence along the boundary line of tract numbered 3424 north 38 degrees 15 minutes east, 248 feet to a point;
thence along the boundary line of tract numbered 3424 north 32 degrees 44 minutes east, 120 feet to a point at the corner furthest north of tract numbered 3424;
thence along the southwestern boundary line of tract numbered 3420 north 46 degrees 15 minutes west, 460 feet to the beginning point.
(
§2309. Great Lakes Commodities Marketing Board
(a) Congressional declaration of purpose
To ensure the coordinated economic revitalization and environmental enhancement of the Great Lakes and their connecting channels and the Saint Lawrence Seaway (hereinafter in this section referred to as the "Great Lakes"), known as the "Fourth Seacoast" of the United States, it is hereby declared to be the intent of Congress to recognize the importance of the economic vitality of the Great Lakes region, the importance of exports from the region in the United States balance of trade, and the need to assure an environmentally and socially responsible navigation system for the Great Lakes. Congress finds that the Great Lakes provide a diversity of agricultural, commercial, environmental, recreational, and related opportunities based on their extensive water resources and water transportation systems.
(b) Establishment; strategy development; composition of Board; Director; report; termination
(1) There is hereby established a Board to be known as the Great Lakes Commodities Marketing Board (hereinafter in this subsection referred to as the "Board").
(2)(A) The Board shall develop a strategy to improve the capacity of the Great Lakes region to produce, market, and transport commodities in a timely manner and to maximize the efficiency and benefits of marketing products produced in the Great Lakes region and products shipped through the Great Lakes.
(B) The strategy shall address, among other things, environmental issues relating to transportation on the Great Lakes and marketing difficulties experienced due to late harvest seasons in the Great Lakes region. The strategy shall include, as appropriate alternative storage, sales, marketing, multimodal transportation systems, and other systems, to assure optimal economic benefits to the region from agricultural and other commercial activities. The strategy shall develop—
(i) methods to improve and promote both bulk and general cargo trade through Great Lakes ports;
(ii) methods to accelerate the movement of grains and other agricultural commodities through the Great Lakes;
(iii) methods to provide needed flexibility to farmers in the Great Lakes region to market grains and other agricultural commodities; and
(iv) methods and materials to promote trade from the Great Lakes region and through Great Lakes ports, particularly with European, Mediterranean, African, Caribbean, Central American, and South American nations.
(C) In developing the strategy, the Board shall conduct and consider the results of—
(i) an analysis of the feasibility and costs of using iron ore vessels, which are not being utilized, to move grain and other agricultural commodities on the Great Lakes;
(ii) an economic analysis of transshipping such commodities through Montreal, Canada, and other ports;
(iii) an analysis of the economic feasibility of storing such commodities during the non-navigation season of the Great Lakes and the feasibility of and need for construction of new storage facilities for such commodities;
(iv) an analysis of the constraints on the flexibility of farmers in the Great Lakes region to market grains and other agricultural commodities, including harvest dates for such commodities and the availability of transport and storage facilities for such commodities; and
(v) an analysis of the amount of grain and other agricultural commodities produced in the United States which are being diverted to Canada by rail but which could be shipped on the Great Lakes if vessels were available for shipping such products during the navigation season.
(D) In developing the strategy, the Board shall consider weather problems and related costs and marketing problems resulting from the late harvest of agricultural commodities (including wheat and sunflower seeds) in the Great Lakes region.
(E) In developing the strategy, the Board shall consult United States ports on the Great Lakes and their users, including farm organizations (such as wheat growers and soybean growers), port authorities, water carrier organizations, and other interested persons.
(3) The Board shall be composed of seven members as follows:
(A) the chairman of the Great Lakes Commission or his or her delegate,
(B) the Secretary or his or her delegate,
(C) the Secretary of Transportation or his or her delegate,
(D) the Secretary of Commerce or his or her delegate,
(E) the Administrator of the 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
(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 (
(2) The United States representatives to the international advisory group shall serve without pay and the United States representatives to the advisory group who are full time officers or employees of the United States shall receive no additional pay by reason of their service on the advisory group, except that the United States representatives shall be allowed travel or transportation expenses under subchapter I of
(3) The international advisory group established by this subsection shall report to Congress and to the Canadian Parliament on its progress in carrying out the duties set forth in this subsection not later than one year after the formation of such group and biennially thereafter.
(d) Review of environmental, economic, and social impacts of navigation in United States portion of Great Lakes
The Secretary and the Administrator of the Environmental Protection Agency, in cooperation with the Secretary of the Interior, the Administrator of the National Oceanic and Atmospheric Administration, and other appropriate Federal and non-Federal entities, shall carry out a review of the environmental, economic, and social impacts of navigation in the United States portion of the Great Lakes. In carrying out such review, the Secretary and the Administrator shall use existing research, studies, and investigations relating to such impacts to the maximum extent possible. Special emphasis shall be made in such review of the impacts of navigation on the shoreline and on fish and wildlife habitat, including, but not limited to, impacts associated with resuspension of bottom sediment. The Secretary and the Administrator shall submit to Congress an interim report of such review not later than September 30, 1988, and a final report of such review along with recommendations not later than September 30, 1990.
(
References in Text
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec. (c)(3) of this section relating to the requirement that the international advisory group report biennially to Congress, see section 3003 of
1 See References in Text note below.
§2309a. Project modifications for improvement of environment
(a) Determination of need
The Secretary is authorized to review water resources projects constructed by the Secretary to determine the need for modifications in the structures and operations of such projects for the purpose of improving the quality of the environment in the public interest and to determine if the operation of such projects has contributed to the degradation of the quality of the environment.
(b) Authority to make modifications
The Secretary is authorized to carry out a program for the purpose of making such modifications in the structures and operations of water resources projects constructed by the Secretary which the Secretary determines (1) are feasible and consistent with the authorized project purposes, and (2) will improve the quality of the environment in the public interest.
(c) Restoration of environmental quality
(1) In general
If the Secretary determines that construction of a water resources project by the Secretary or operation of a water resources project constructed by the Secretary has contributed to the degradation of the quality of the environment, the Secretary may undertake measures for restoration of environmental quality and measures for enhancement of environmental quality that are associated with the restoration, through modifications either at the project site or at other locations that have been affected by the construction or operation of the project, if such measures do not conflict with the authorized project purposes.
(2) Control of sea lamprey
Congress finds that—
(A) the Great Lakes navigation system has been instrumental in the spread of sea lamprey and the associated impacts on its fishery; and
(B) the use of the authority under this subsection for control of sea lamprey at any Great Lakes basin location is appropriate.
(d) Non-Federal share; limitation on maximum Federal expenditure
The non-Federal share of the cost of any modifications or measures carried out or undertaken pursuant to subsection (b) or (c) shall be 25 percent. The non-Federal share may be provided in kind, including a facility, supply, or service that is necessary to carry out the modification or measure. Not more than $10,000,000 in Federal funds may be expended on any single modification or measure carried out or undertaken pursuant to this section.
(e) Coordination of actions
The Secretary shall coordinate any actions taken pursuant to this section with appropriate Federal, State, and local agencies.
(f) Omitted
(g) Nonprofit entities
Notwithstanding
(h) Authorization of appropriations
There is authorized to be appropriated not to exceed $50,000,000 annually to carry out this section.
(i) Definition
In this section, the term "water resources project constructed by the Secretary" includes a water resources project constructed or funded jointly by the Secretary and the head of any other Federal agency (including the Natural Resources Conservation Service).
(
Codification
Subsec. (f) of this section, which required the Secretary to transmit biennial reports to Congress on the results of reviews conducted under subsec. (a) of this section and on the programs conducted under subsecs. (b) and (c) of this section, terminated, effective May 15, 2000, pursuant to section 3003 of
Section was formerly set out as a note under
Amendments
2018—Subsec. (h).
2014—Subsec. (d).
2007—Subsec. (h).
2000—Subsecs. (g) to (i).
1999—Subsec. (c).
1996—Subsec. (a).
Subsec. (b).
Subsecs. (c), (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1992—Subsec. (b).
Subsec. (e).
1990—Subsec. (a).
Subsec. (b).
Subsec. (d).
Subsec. (e).
1988—Subsec. (b).
Subsec. (d).
§2310. Cost sharing for Territories and Indian tribes
(a) In general
The Secretary shall waive local cost-sharing requirements up to $200,000 for all studies and projects—
(1) in American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, Puerto Rico, and the Trust Territory of the Pacific Islands; and
(2) for any Indian tribe or tribal organization (as those terms are defined in
(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.
(
Amendments
2018—Subsec. (a)(2).
Subsec. (b).
2016—
Subsec. (a).
2014—
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§2311. Report to Congress covering proposals for water impoundment facilities
Any report that is submitted to the Committee on Environment and Public Works of the Senate or the Committee on Public Works and Transportation of the House of Representatives by the Secretary, or the Secretary of Agriculture acting under
(
References in Text
Change of Name
Committee on Public Works and Transportation of House of Representatives treated as referring to Committee on Transportation and Infrastructure of House of Representatives by section 1(a) of
§2312. Comments on certain changes in operations of reservoirs
Before the Secretary may make changes in the operation of any reservoir which will result in or require a reallocation of storage space in such reservoir or will significantly affect any project purpose, the Secretary shall provide an opportunity for public review and comment.
(
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
§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 (
(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 (
(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 (
(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 (
(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.
(
References in Text
The Stevenson-Wydler Technology Innovation Act of 1980, referred to in subsec. (d), is
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).
Subsecs. (b), (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Magnetic Levitation Technology
"(a)
"(b)
"(c)
"(d)
"(e)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2313a. Engineering and environmental innovations of national significance
(a) Surveys, plans, and studies
To encourage innovative and environmentally sound engineering solutions and innovative environmental solutions to problems of national significance, the Secretary may undertake surveys, plans, and studies and prepare reports that may lead to work under existing civil works authorities or to recommendations for authorizations.
(b) Funding
(1) Authorization of appropriations
There is authorized to be appropriated to carry out this section $1,000,000 for each of fiscal years 1997 through 2000.
(2) Funding from other sources
The Secretary may accept and expend additional funds from other Federal agencies, States, or non-Federal entities for purposes of carrying out this section.
(
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
§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.
(
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
§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.
(
Codification
Section was enacted as part of the Water Resources Development Act of 1988, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
2014—Subsec. (d).
1999—Subsecs. (b) to (d).
Design-Build Contracting
"(a)
"(b)
"(c)
Review of Innovative Dredging Technologies
"(1)
"(2)
"(A)
"(B)
"(3)
Beneficial Use of Waste Tire Rubber
"(a)
"(b)
"(c)
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2314a. Technical assistance program
(a) In general
The Secretary is authorized to provide technical assistance, on a nonexclusive basis, to any United States firm which is competing for, or has been awarded, a contract for the planning, design, or construction of a project outside the United States, if the United States firm provides, in advance of fiscal obligation by the United States, funds to cover all costs of such assistance. In determining whether to provide such assistance, the Secretary shall consider the effects on the Department of the Army civil works mission, personnel, and facilities. Prior to the Secretary providing such assistance, a United States firm must—
(1) certify to the Secretary that such assistance is not otherwise reasonably and expeditiously available; and
(2) agree to hold and save the United States free from damages due to the planning, design, construction, operation, or maintenance of the project.
(b) Federal employees' inventions
As to an invention made or conceived by a Federal employee while providing assistance pursuant to this section, if the Secretary decides not to retain all rights in such invention, the Secretary may—
(1) grant or agree to grant in advance, to a United States firm, a patent license or assignment, or an option thereto, retaining a nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention or have the invention practiced throughout the world by or on behalf of the United States and such other rights as the Secretary deems appropriate; or
(2) waive, subject to reservation by the United States of a nonexclusive, irrevocable, paid-up license to practice the invention or have the invention practiced throughout the world by or on behalf of the United States, in advance, in whole, or in part, any right which the United States may have to such invention.
(c) Protection of confidential information
Information of a confidential nature, such as proprietary or classified information, provided to a United States firm pursuant to this section shall be protected. Such information may be released by a United States firm only after written approval by the Secretary.
(d) Definitions
For purposes of this section—
(1) United States firm
The term "United States firm" means a corporation, partnership, limited partnership, or sole proprietorship that is incorporated or established under the laws of any of the United States with its principal place of business in the United States.
(2) United States
The term "United States", when used in a geographical sense, means the several States of the United States and the District of Columbia.
(
Codification
Section was formerly set out as a note under
Section was enacted as part of the Water Resources Development Act of 1988, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.
Amendments
1990—
Subsec. (a).
Subsecs. (d), (e).
"Secretary" Defined
Secretary means the Secretary of the Army, see section 2 of
§2314b. Advanced modeling technologies
(a) In general
To the greatest extent practicable, the Secretary shall encourage and incorporate advanced modeling technologies, including 3-dimensional digital modeling, that can expedite project delivery or improve the evaluation of water resources development projects that receive Federal funding by—
(1) accelerating and improving the environmental review process;
(2) increasing effective public participation;
(3) enhancing the detail and accuracy of project designs;
(4) increasing safety;
(5) accelerating construction and reducing construction costs; or
(6) otherwise achieving the purposes described in paragraphs (1) through (5).
(b) Activities
In carrying out subsection (a), the Secretary, to the greatest extent practicable, shall—
(1) compile information related to advanced modeling technologies, including industry best practices with respect to the use of the technologies;
(2) disseminate to non-Federal interests the information described in paragraph (1); and
(3) promote the use of advanced modeling technologies.
(
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
§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.
(
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
§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.
(
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
§2315b. Transparency and accountability in cost sharing for water resources development projects
(a) Definition of balance sheet
In this section, the term "balance sheet" means a document that describes—
(1) the funds provided by each Federal and non-Federal interest for a water resources development project; and
(2) the status of those funds.
(b) Establishment of balance sheet
Each district of the Corps of Engineers shall, using the authority of the Secretary under
(1) maintain a balance sheet for each water resources development project carried out by the Secretary for which a non-Federal cost share is required; and
(2) on request of a non-Federal interest that provided funds for the project, provide to the non-Federal interest a copy of the balance sheet.
(c) Under-budget projects
In the case of a water resources development project carried out by the Secretary that is completed at a cost less than the estimated cost, the Secretary shall transfer any excess non-Federal funds to the non-Federal interest in accordance with the cost-share requirement applicable to the project.
(
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
§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.
(
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
§2317. Wetlands
(a) Goals and action plan
(1) Goals
There is established, as part of the Corps of Engineers water resources development program, an interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation's wetlands, as defined by acreage and function.
(2) Use of authorities
The Secretary shall utilize all appropriate authorities, including those to restore and create wetlands, in meeting the interim and long-term goals.
(3) Action plan
(A) Development
The Secretary shall develop, in consultation with the Environmental Protection Agency, the Fish and Wildlife Service, and other appropriate Federal agencies, a wetlands action plan to achieve the goals established by this subsection as soon as possible.
(B) Contents
The plan shall include and identify actions to be taken by the Secretary in achieving the goals and any new authorities which may be necessary to accelerate attainment of the goals.
(C) Completion deadline
The Secretary shall complete the plan not later than 1 year after November 28, 1990.
(b) Constructed wetlands for Mud Creek, Arkansas
Notwithstanding any other provision of law, the Secretary is authorized and directed to establish and carry out a research and pilot project to evaluate and demonstrate—
(1) the use of constructed wetlands for wastewater treatment, and
(2) methods by which such projects contribute—
(A) to meeting the objective of the Federal Water Pollution Control Act [
(B) to attaining the goals established by subsection (a).
The project under this subsection shall be carried out to improve the quality of effluent discharged from publicly owned treatment works operated by the city of Fayetteville, Arkansas, into Mud Creek or its tributaries.
(c) Non-Federal responsibilities
For the project conducted under subsection (b), the non-Federal interest shall agree—
(1) to provide, without cost to the United States, all lands, easements, rights-of-way, relocations, and dredged material disposal areas necessary for construction and subsequent research and demonstration work;
(2) to hold and save the United States free from damages due to construction, operation, and maintenance of the project, except damages due to the fault or negligence of the United States or its contractors; and
(3) to operate and maintain the restored or constructed wetlands in accordance with good management practices; except that nothing in this paragraph shall be construed as precluding a Federal agency from agreeing to operate and maintain the restored or reconstructed wetlands.
The value of the non-Federal lands, easements, rights-of-way, relocations, and dredged material disposal areas provided by the non-Federal interest shall be credited toward the non-Federal share of project design and construction costs. The non-Federal share of project design and construction costs shall be 25 percent.
(d) Wetlands restoration and enhancement demonstration program
(1) Establishment and implementation
The Secretary, in consultation with the Administrator, is authorized to establish and implement a demonstration program for the purpose of determining the feasibility of wetlands restoration, enhancement, and creation as a means of contributing to the goals established by subsection (a).
(2) Goal
The goal of the program under this subsection shall be to establish a limited number of demonstration wetlands restoration, enhancement, and creation areas in districts of the Corps of Engineers for the purpose of evaluating the technical and scientific long-term feasibility of such areas as a means of contributing to the attainment of the goals established by subsection (a). Federal and State land-owning agencies and private parties may contribute to such areas.
(3) Factors to consider
In establishing the demonstration program under this subsection, the Secretary shall consider—
(A) past experience with wetlands restoration, enhancement, and creation;
(B) the appropriate means of measuring benefits of compensatory mitigation activities, including enhancement or restoration of existing wetlands or creation of wetlands;
(C) the appropriate geographic scope for which wetlands loss may be offset by restoration, enhancement, and creation efforts;
(D) the technical feasibility and scientific likelihood that wetlands can be successfully restored, enhanced, and created;
(E) means of establishing liability for, and long-term ownership of, wetlands restoration, enhancement, and creation areas; and
(F) responsibilities for short- and long-term project monitoring.
(4) Reporting
(A) To the Chief of Engineers
The district engineer for each district of the Corps of Engineers in which a wetlands restoration, enhancement, and creation area is established under this subsection shall transmit annual reports to the Chief of Engineers describing the amount and value of wetlands restored, enhanced, and created for the area and a summary of whether the area is contributing to the goal established in paragraph (2).
(B) To Congress
Not later than 3 years after November 28, 1990, the Secretary shall transmit to Congress a report evaluating the use of wetlands restoration, enhancement, and creation areas in fulfilling the goal established by paragraph (2), together with recommendations on whether or not to continue use of such areas as a means of meeting the goals established by subsection (a).
(5) Effect on other laws
Nothing in this subsection affects any requirements under section 404 of the Federal Water Pollution Control Act (
(e) Training and certification of delineators
(1) In general
The Secretary is authorized to establish a program for the training and certification of individuals as wetlands delineators. As part of such program, the Secretary shall carry out demonstration projects in districts of the Corps of Engineers. The program shall include training and certification of delineators and procedures for expediting consideration and acceptance of delineations performed by certified delineators.
(2) Reports
The Secretary shall transmit to Congress periodic reports concerning the status of the program and any recommendations on improving the content and implementation of the Federal Manual for Identifying and Delineating Jurisdictional Wetlands.