33 U.S.C. § 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)

1 See References in Text note below.

a feasibility report, as such term is defined in section 2282d(f)  of this title;

(2)

section 2231 of this title a completed feasibility study developed under ; or

(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)

section 2231(c)(3) of this title 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 a non-Federal interest carrying out a project or separable element of a project under this section, the Secretary shall undertake all necessary studies, engineering, and technical assistance on construction for any project or separable element of a project under this section, and provide technical assistance in obtaining all necessary permits for the construction, if the non-Federal interest contracts with the Secretary to provide funds to the United States for the studies, engineering, or technical assistance.

(2)

No waiver

section 3142 of title 40Nothing 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 plan for construction of the project or separable element of the project by the non-Federal interest;

(ii)

the Secretary determines, before approval of the plan, that the project or separable element of the project is feasible; and

(iii)

section 1962d–5b of title 42 the non-Federal interest enters into a written agreement with the Secretary under , including an agreement to pay the non-Federal share, if any, of the cost of operation and maintenance of the project; and

(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)

section 2223 of this title subject to the requirements of this section and , at the request of the non-Federal interest, the non-Federal share of a different water resources development project.

(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, discrete segment of the project, or separable element of 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 plan 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 plan 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.

(6)

Exclusions

The Secretary may not provide credit or reimbursement for—

(A)

activities required by the non-Federal interest to initiate design and construction that would otherwise not be required by the Secretary; or

(B)

delays incurred by the non-Federal interest resulting in project cost increases.

(e)

Notification of committees

If a non-Federal interest notifies the Secretary that the non-Federal interest intends to carry out a project, or separable element thereof, under this section, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives concerning the intent of the non-Federal interest.

(f)

Operation and maintenance

(1)

Assumption of maintenance

section 2211(b) of this titleWhenever 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 if—

(A)

before construction of the improvements—

(i)

the Secretary determines that the improvements are feasible and consistent with the purposes of this subchapter; and

(ii)

the Secretary and the non-Federal interest execute a written agreement relating to operation and maintenance of the improvements;

(B)

the Secretary certifies that the project or separable element of the project is constructed in accordance with applicable permits and appropriate engineering and design standards; and

(C)

the Secretary does not find that the project or separable element is no longer feasible.

(2)

Federal financial participation in the costs of a locally preferred plan.

section 2211(b) of this titleIn the case of improvements determined by the Secretary pursuant to paragraph (1)(A)(i) to deviate from the national economic development plan, the Secretary shall be responsible for all operation and maintenance costs of such improvements, as described in , including costs in excess of the costs of the national economic development plan, if the Secretary determines that the improvements satisfy the requirements of paragraph (1).

Pub. L. 99–662, title II, § 204Nov. 17, 1986100 Stat. 4099 Pub. L. 101–640, title III, § 303Nov. 28, 1990104 Stat. 4634 Pub. L. 113–121, title I, § 1014(b)(1)June 10, 2014128 Stat. 1220 Pub. L. 114–322, title I, § 1127Dec. 16, 2016130 Stat. 1648 Pub. L. 115–270, title I, § 1153Oct. 23, 2018132 Stat. 3789 Pub. L. 116–260, div. AA, title I, § 105(a)Dec. 27, 2020134 Stat. 2622 Pub. L. 118–272, div. A, title I, § 1110(a)Jan. 4, 2025138 Stat. 3009(, , ; , , ; , , ; , , ; , , ; , (b), , ; , , .)

Editorial Notes

References in Text

Section 2282d(f) of this title section 2282d(g) of this title Pub. L. 115–270, title I, § 1332(a)(3)Oct. 23, 2018132 Stat. 3834 Section 2282d(g) of this title section 2282d(i) of this title Pub. L. 118–272, div. A, title I, § 1111(2)Jan. 4, 2025138 Stat. 3010, referred to in subsec. (a)(1), was redesignated by , , . was subsequently redesignated by , , .

Amendments

Pub. L. 118–272, § 1110(a)(1)2025—Subsec. (c)(1). , added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: “When requested by an appropriate non-Federal interest, the Secretary shall undertake all necessary studies, engineering, and technical assistance on construction for any project to be undertaken under this section, and provide technical assistance in obtaining all necessary permits for the construction, if the non-Federal interest contracts with the Secretary to furnish the United States funds for the studies, engineering, or technical assistance on construction in the period during which the studies, engineering, or technical assistance on construction are being conducted.”

Pub. L. 118–272, § 1110(a)(2)(A)Subsec. (d)(1)(A)(i), (ii). , substituted “plan” for “plans”.

Pub. L. 118–272, § 1110(a)(2)(B)Subsec. (d)(3)(B). , inserted “, discrete segment of the project, or separable element of the project” after “certifies that the project”.

Pub. L. 118–272, § 1110(a)(2)(C)Subsec. (d)(5)(A)(ii), (B)(ii). , substituted “plan” for “plans”.

Pub. L. 118–272, § 1110(a)(2)(D)Subsec. (d)(6). , added par. (6).

Pub. L. 116–260, § 105(a)2020—Subsec. (c)(1). , substituted “under this section” for “under subsection (b)”.

Pub. L. 116–260, § 105(b)Subsec. (f). , amended subsec. (f) generally. Prior to amendment, subsec. (f) related to operation and maintenance.

Pub. L. 115–270, § 1153(1)(A)2018—Subsec. (b)(1). , inserted “federally authorized” before “water resources development project” in introductory provisions.

Pub. L. 115–270, § 1153(1)(B)Subsec. (b)(2)(A). , inserted “, except as provided in paragraph (3)” after “Federal or State law”.

Pub. L. 115–270, § 1153(1)(C)Subsec. (b)(3), (4). , added pars. (3) and (4).

Pub. L. 115–270, § 1153(2)Subsec. (c). , amended subsec. (c) generally. Prior to amendment, text read as follows: “When requested by an appropriate non-Federal interest, the Secretary may undertake all necessary studies and engineering for any construction 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 in the period during which the studies and engineering are being conducted.”

Pub. L. 115–270, § 1153(3)(A)Subsec. (d)(3)(C). , added subpar. (C).

Pub. L. 115–270, § 1153(3)(B)(i)Subsec. (d)(5). , substituted “water resources development” for “flood damage reduction” wherever appearing.

Pub. L. 115–270, § 1153(3)(B)(ii)Subsec. (d)(5)(A). , substituted “for carrying out a discrete segment of a federally authorized” for “for a discrete segment of a” in introductory provisions.

Pub. L. 115–270, § 1153(3)(B)(iii)Subsec. (d)(5)(D). , inserted “to be carried out” after “project” in introductory provisions.

Pub. L. 114–3222016—Subsec. (d)(5). added par. (5).

Pub. L. 113–1212014— amended section generally. Prior to amendment, section related to construction of projects by non-Federal interests.

Pub. L. 101–640, § 303(a)section 577 of this title1990—Subsec. (c). , inserted after first sentence “The Secretary is further authorized to complete and transmit to the appropriate non-Federal interest any study for improvement to harbors or inland harbors of the United States that is initiated pursuant to or, upon request of such non-Federal interest, to terminate such study and transmit such partially completed study to the non-Federal interest.”

Pub. L. 101–640, § 303(b)(1)Subsec. (e). , redesignated subsec. (e), relating to operation and maintenance, as (f).

Pub. L. 101–640, § 303(b)(2)section 577 of this titleSubsec. (e)(1). , (3), in introductory provisions inserted “including any small navigation project approved pursuant to ,” after “or separable element thereof,” and in subpar. (A) inserted “(or, in the case of a small navigation project, after completion of a favorable project report by the Corps of Engineers)” after “authorization of the project”.

Pub. L. 101–640, § 303(b)(1)Subsec. (f). , redesignated subsec. (e), relating to operation and maintenance, as (f). Former subsec. (f) redesignated (g).

Pub. L. 101–640, § 303(b)(1)Subsec. (g). , redesignated subsec. (f) as (g).

Statutory Notes and Related Subsidiaries

Savings Provision

Pub. L. 113–121, title I, § 1014(d)June 10, 2014128 Stat. 1222

section 2231 of this titleJune 10, 2014December 31, 2014“Nothing in this section [amending this section and , repealing sections 426i–1 and 701b–13 of this title, and repealing provisions set out as a note under this section] may be construed to affect an agreement in effect on the date of enactment of this Act [], or an agreement that is finalized between the Corps of Engineers and a non-Federal interest on or before , under any of the following sections (as such sections were in effect on the day before such date of enactment):

“(1)

33 U.S.C. 2232 Section 204 of the Water Resources Development Act of 1986 ().

“(2)

33 U.S.C. 426i–1 Section 206 of the Water Resources Development Act of 1992 ().

“(3)

33 U.S.C. 701b–13 Section 211 of the Water Resources Development Act of 1996 ().”

, , , provided that:

Guidance

Pub. L. 118–272, div. A, title I, § 1110(b)Jan. 4, 2025138 Stat. 3010

Jan. 4, 2025“Not later than 18 months after the date of enactment of this Act [], the Secretary [of the Army] shall update any guidance as necessary to reflect the amendments made by this section [amending this section].”

, , , provided that:

Implementation

Pub. L. 118–272, div. A, title I, § 1110(c)Jan. 4, 2025138 Stat. 3010

33 U.S.C. 2232Jan. 4, 2025“Any non-Federal interest that has entered in a written agreement with the Secretary [of the Army] to carry out a water resources development project pursuant to section 204 of the Water Resources Development Act of 1986 () before the date of enactment of this Act [] may submit to the Secretary a request to amend such agreement to reflect the amendments made by this section [amending this section].”

, , , provided that:

Report on Improvements by Non–Federal Interest

Pub. L. 116–260, div. AA, title I, § 105(c)Dec. 27, 2020134 Stat. 2623

33 U.S.C. 2232“A non-Federal interest may submit to the Secretary [of the Army] a report on improvements to a federally authorized harbor or inland harbor to be carried out by the non-Federal interest, containing any information necessary for the Secretary determine whether the improvements satisfy the requirements of section 204(f)(1) of the Water Resources Development Act of 1986 ([(f)(1)]), including—

“(1)

the economic justification for the improvements;

“(2)

details of the project improvement plan and design;

“(3)

proposed arrangements for the work to be performed; and

“(4)

documents relating to any applicable permits required for the project improvements.”

, , , provided that:

Project Studies Subject to Independent Peer Review

Pub. L. 116–260, div. AA, title I, § 105(d)Dec. 27, 2020134 Stat. 2623

33 U.S.C. 2232 33 U.S.C. 2343(a)(3)(A)(i)“The Secretary [of the Army] shall not be required to subject a project study for a project with a cost of less than $200,000,000, which the Secretary determines satisfies the requirements of section 204(f)(1) of the Water Resources Development Act of 1986 ([(f)(1)]), to independent peer review under section 2034(a)(3)(A)(i) of the Water Resources Development Act of 2007 ().”

, , , provided that:

Preconstruction Engineering Design Demonstration Program

Pub. L. 115–270, title I, § 1176Oct. 23, 2018132 Stat. 3801

“(a)

Definition of Environmental Impact Statement .—

42 U.S.C. 4332(2)(C)In this section, the term ‘environmental impact statement’ means the detailed written statement required under section 102(2)(C) of the National Environmental Policy Act of 1969 ().

“(b)

Demonstration Program .—

33 U.S.C. 701b–13 128 Stat. 1193June 10, 2014The Secretary [of the Army] shall establish a demonstration program to allow a project authorized to execute pursuant to [former] section 211 of the Water Resources Development Act of 1996 () (as in effect on the day before the date of enactment of the Water Resources Reform and Development Act of 2014 () []) to begin preconstruction engineering and design on a determination by the Secretary that the project is technically feasible, economically justified, and environmentally acceptable.

“(c)

Requirements .—

For each project authorized to begin preconstruction engineering and design under subsection (b)—

“(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)

Secretary Review of Potential Adverse Impacts .—

33 U.S.C. 2283When reviewing the feasibility study and the environmental impact statement for a project under subsection (b), the Secretary shall follow current USACE Policy, Regulations, and Guidance, to assess potential adverse downstream impacts to the Pearl River Basin. Upon completion of the Secretary’s determination under subsection (b), the non-Federal sponsor shall design the project in a manner that addresses any potential adverse impacts or that provides mitigation in accordance with section 906 of the Water Resources Development Act of 1986 ().

“(e)

Sunset .—

Oct. 23, 2018The authority to carry out the demonstration program under this section shall terminate on the date that is 5 years after the date of enactment of this Act [].

“(f)

Savings Provision .—

Nothing in this section supersedes, precludes, or affects any applicable requirements for a project under subsection (b) under—

“(1)

33 U.S.C. 2283 section 906 of the Water Resources Development Act of 1986 (); or

“(2)

42 U.S.C. 9601 the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( et seq.).”

, , , provided that:

Navigation Safety

Pub. L. 114–322, title I, § 1102Dec. 16, 2016130 Stat. 1633

section 5 of the Act of March 4, 1915 38 Stat. 1053 33 U.S.C. 562 33 U.S.C. 2232(f)“The Secretary [of the Army] shall use (, chapter 142; ), to carry out navigation safety activities at those projects eligible for operation and maintenance under section 204(f) of the Water Resources Development Act of 1986 ().”

, , , provided that:

Operation and Maintenance of Certain Projects

Pub. L. 113–121, title I, § 1016June 10, 2014128 Stat. 1223

33 U.S.C. 2211(b)December 31, 201433 U.S.C. 2232(f)“The Secretary [of the Army] may assume responsibility for operation and maintenance in accordance with section 101(b) of the Water Resources Development Act of 1986 () (as amended by section 2102(b)) for improvements to a federally authorized harbor or inland harbor that are carried out by a non-Federal interest prior to , if the Secretary determines that the requirements under paragraphs (2) and (3) of section 204(f) of the Water Resources Development Act of 1986 () are met.”

, , , provided that:

Demonstration of Construction of Federal Project by Non-Federal Interests

Pub. L. 101–640, title IV, § 404Nov. 28, 1990104 Stat. 4646 Pub. L. 113–121, title I, § 1014(c)(1)June 10, 2014128 Stat. 1222, , , which related to the demonstration of safety benefits and economic efficiencies of non-Federal management of harbor improvement projects, was repealed by , , .