I 

113TH CONGRESS 

1ST SESSION H. R. 2293 

To amend the Flood Control Act of 1970 with respect to credit for inkind contributions, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 6, 2013 

Ms. MATSUI (for herself and Mr. LAMALFA) introduced the following bill; 

which was referred to the Committee on Transportation and Infrastructure 

A BILL 

To amend the Flood Control Act of 1970 with respect to 

credit for in-kind contributions, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Flood Control Credit 

5 Act of 2013’’. 

6 SEC. 2. TRANSFER OF EXCESS WORK-IN-KIND CREDIT. 

7 (a) IN GENERAL.—Subject to subsection (b), the Sec8 retary of the Army may apply credit for in-kind contribu9 tions provided by a non-Federal interest that is in excess 

10 of the required non-Federal cost-share for a water remstockstill on DSK4VPTVN1PROD with BILLS

2 

•HR 2293 IH

1 sources study or project, including credit for in-kind con2 tributions provided to accelerate completion of a water re3 sources study or project, toward the required non-Federal 

4 cost-share for a different water resources study or project. 

5 (b) RESTRICTIONS.— 

6 (1) IN GENERAL.—Except for subsection 

7 (a)(4)(D)(i) of that section, the requirements of sec8 tion 221 of the Flood Control Act of 1970 (42 

9 U.S.C. 1962d–5b) (as amended by section 3 of this 

10 Act) shall apply to any credit under this section. 

11 (2) CONDITIONS.—Credit in excess of the non12 Federal cost-share for a study or project may be ap13 proved under this section only if— 

14 (A) the non-Federal interest submits a 

15 comprehensive plan to the Secretary that identi16 fies— 

17 (i) the studies and projects for which 

18 the non-Federal interest intends to provide 

19 in-kind contributions for credit that is in 

20 excess of the non-Federal cost share for 

21 the study or project; and 

22 (ii) the studies and projects to which 

23 that excess credit would be applied; 

24 (B) the Secretary approves the comprehen25 sive plan; and 

mstockstill on DSK4VPTVN1PROD with BILLS

3 

•HR 2293 IH

1 (C) the total amount of credit does not ex2 ceed the total non-Federal cost-share for the 

3 studies and projects in the approved com4 prehensive plan. 

5 (c) ADDITIONAL CRITERIA.—In evaluating a request 

6 to apply credit in excess of the non-Federal cost-share for 

7 a study or project toward a different study or project, the 

8 Secretary shall consider whether applying that credit 

9 will— 

10 (1) help to expedite the completion of a project 

11 or group of projects; 

12 (2) reduce costs to the Federal Government; 

13 and 

14 (3) aid the completion of a project that provides 

15 significant flood risk reduction or environmental 

16 benefits. 

17 (d) REPORT.— 

18 (1) DEADLINES.— 

19 (A) IN GENERAL.—Not later than 2 years 

20 after the date of enactment of this Act, the Sec21 retary shall submit to the Committee on Trans22 portation and Infrastructure of the House of 

23 Representatives and the Committee on Environ24 ment and Public Works of the Senate an inmstockstill on DSK4VPTVN1PROD with BILLS

4 

•HR 2293 IH

1 terim report on the use of the authority under 

2 this section. 

3 (B) FINAL REPORT.—Not later than 5 

4 years after the date of enactment of this Act, 

5 the Secretary shall submit to the Committee on 

6 Transportation and Infrastructure of the House 

7 of Representatives and the Committee on Envi8 ronment and Public Works of the Senate a final 

9 report on the use of the authority under this 

10 section. 

11 (2) INCLUSIONS.—The reports described in 

12 paragraph (1) shall include— 

13 (A) a description of the use of the author14 ity under this section during the reporting pe15 riod; 

16 (B) an assessment of the impact of the au17 thority under this section on the time required 

18 to complete projects; and 

19 (C) an assessment of the impact of the au20 thority under this section on other water re21 sources projects. 

22 SEC. 3. CREDIT FOR IN-KIND CONTRIBUTIONS. 

23 (a) IN GENERAL.—Section 221(a)(4) of the Flood 

24 Control Act of 1970 (42 U.S.C. 1962d–5b(a)(4)) is 

25 amended— 

mstockstill on DSK4VPTVN1PROD with BILLS

5 

•HR 2293 IH

1 (1) in subparagraph (A), in the matter pre2 ceding clause (i) by inserting ‘‘or a project under an 

3 environmental infrastructure assistance program’’ 

4 after ‘‘law’’; 

5 (2) in subparagraph (C), by striking ‘‘In any 

6 case’’ and all that follows through the period at the 

7 end and inserting the following: 

8 ‘‘(i) CONSTRUCTION.— 

9 ‘‘(I) IN GENERAL.—In any case 

10 in which the non-Federal interest is to 

11 receive credit under subparagraph (A) 

12 for the cost of construction carried 

13 out by the non-Federal interest before 

14 execution of a partnership agreement 

15 and that construction has not been 

16 carried out as of the date of enact17 ment of this subparagraph, the Sec18 retary and the non-Federal interest 

19 shall enter into an agreement under 

20 which the non-Federal interest shall 

21 carry out such work prior to the non22 Federal interest initiating construc23 tion or issuing a written notice to pro24 ceed for the construction. 

mstockstill on DSK4VPTVN1PROD with BILLS

6 

•HR 2293 IH

1 ‘‘(II) ELIGIBILITY.—Construc2 tion that is carried out after the exe3 cution of an agreement to carry out 

4 work described in subclause (I) and 

5 any design activities that are required 

6 for that construction, even if the de7 sign activity is carried out prior to the 

8 execution of the agreement to carry 

9 out work, shall be eligible for credit. 

10 ‘‘(ii) PLANNING.— 

11 ‘‘(I) IN GENERAL.—In any case 

12 in which the non-Federal interest is to 

13 receive credit under subparagraph (A) 

14 for the cost of planning carried out by 

15 the non-Federal interest before execu16 tion of a feasibility cost sharing agree17 ment, the Secretary and the non-Fed18 eral interest shall enter into an agree19 ment under which the non-Federal in20 terest shall carry out such work prior 

21 to the non-Federal interest initiating 

22 that planning. 

23 ‘‘(II) ELIGIBILITY.—Planning 

24 that is carried out by the non-Federal 

25 interest after the execution of an 

mstockstill on DSK4VPTVN1PROD with BILLS

7 

•HR 2293 IH

1 agreement to carry out work described 

2 in subclause (I) shall be eligible for 

3 credit.’’; 

4 (3) in subparagraph (D)(iii), by striking ‘‘sec5 tions 101 and 103’’ and inserting ‘‘sections 

6 101(a)(2) and 103(a)(1)(A) of the Water Resources 

7 Development Act of 1986 (33 U.S.C. 2211(a)(2); 33 

8 U.S.C. 2213(a)(1)(A))’’; 

9 (4) by redesignating subparagraph (E) as sub10 paragraph (H); 

11 (5) by inserting after subparagraph (D) the fol12 lowing: 

13 ‘‘(E) ANALYSIS OF COSTS AND BENE14 FITS.—In the evaluation of the costs and bene15 fits of a project, the Secretary shall not con16 sider construction carried out by a non-Federal 

17 interest under this subsection as part of the fu18 ture without project condition. 

19 ‘‘(F) TRANSFER OF CREDIT BETWEEN

20 SEPARABLE ELEMENTS OF A PROJECT.—Credit 

21 for in-kind contributions provided by a non22 Federal interest, under this section or section 

23 104 of the Water Resources Development Act 

24 of 1986 (33 U.S.C. 2214), that are in excess of 

25 the non-Federal cost share for an authorized 

mstockstill on DSK4VPTVN1PROD with BILLS

8 

•HR 2293 IH

1 separable element of a project may be applied 

2 toward the non-Federal cost share for a dif3 ferent authorized separable element of the same 

4 project or toward another authorized project, 

5 within the same watershed, for which the non6 Federal interest has a cost share responsibility. 

7 ‘‘(G) APPLICATION OF CREDIT.—To the 

8 extent that credit for in-kind contributions, as 

9 limited by subparagraph (D), and credit for re10 quired land, easements, rights-of-way, dredged 

11 material disposal areas, and relocations pro12 vided by the non-Federal interest exceed the 

13 non-Federal share of the cost of construction of 

14 a project other than a navigation project, the 

15 Secretary shall reimburse the difference to the 

16 non-Federal interest, subject to the availability 

17 of funds.’’; and 

18 (6) in subparagraph (H) (as redesignated by 

19 paragraph (4))— 

20 (A) in clause (i), by inserting ‘‘, and to 

21 water resources projects authorized prior to the 

22 date of enactment of the Water Resources De23 velopment Act of 1986 (Public Law 99–662), if 

24 correction of design deficiencies is necessary’’ 

25 before the period at the end; and 

mstockstill on DSK4VPTVN1PROD with BILLS

9 

•HR 2293 IH

1 (B) by striking clause (ii) and inserting the 

2 following: 

3 ‘‘(ii) AUTHORIZATION IN AD4 DITION TO SPECIFIC CREDIT

5 PROVISION.—In any case in 

6 which a specific provision of law 

7 authorizes credit for in-kind con8 tributions provided by a non-Fed9 eral interest before the date of 

10 execution of a partnership agree11 ment, the Secretary may apply 

12 the authority provided in this 

13 paragraph to allow credit for in14 kind contributions provided by 

15 the non-Federal interest on or 

16 after the date of execution of the 

17 partnership agreement.’’. 

18 (b) APPLICABILITY.—Section 2003(e) of the Water 

19 Resources Development Act of 2007 (42 U.S.C. 1962d– 

20 5b note) is amended by inserting ‘‘, or construction of de21 sign deficiency corrections on the project,’’ after ‘‘con22 struction on the project’’. 

23 (c) EFFECTIVE DATE.—The amendments made by 

24 subsections (a) and (b) take effect on November 8, 2007. 

25 (d) GUIDELINES.— 

mstockstill on DSK4VPTVN1PROD with BILLS

10 

•HR 2293 IH

1 (1) IN GENERAL.—Not later than 1 year after 

2 the date of enactment of this Act, the Secretary of 

3 the Army shall update any guidance or regulations 

4 for carrying out section 221(a)(4) of the Flood Con5 trol Act of 1970 (42 U.S.C. 1962d–5b(a)(4)) (as 

6 amended by subsection (a)) that are in existence on 

7 the date of enactment of this Act or issue new 

8 guidelines, as determined to be appropriate by the 

9 Secretary. 

10 (2) INCLUSIONS.—Any guidance, regulations, or 

11 guidelines updated or issued under paragraph (1) 

12 shall include, at a minimum— 

13 (A) the milestone for executing an in-kind 

14 memorandum of understanding for construction 

15 by a non-Federal interest; 

16 (B) criteria and procedures for evaluating 

17 a request to execute an in-kind memorandum of 

18 understanding for construction by a non-Fed19 eral interest that is earlier than the milestone 

20 under subparagraph (A) for that execution; and 

21 (C) criteria and procedures for determining 

22 whether work carried out by a non-Federal in23 terest is integral to a project. 

24 (3) PUBLIC AND STAKEHOLDER PARTICIPA25 TION.—Before issuing any new or revised guidance, 

mstockstill on DSK4VPTVN1PROD with BILLS

11 

•HR 2293 IH

1 regulations, or guidelines or any subsequent updates 

2 to those documents, the Secretary shall— 

3 (A) consult with affected non-Federal in4 terests; 

5 (B) publish the proposed guidelines devel6 oped under this subsection in the Federal Reg7 ister; and 

8 (C) provide the public with an opportunity 

9 to comment on the proposed guidelines. 

10 (e) INTERIM PERIOD.—During the period beginning 

11 on the date of enactment of this Act and ending on the 

12 date on which guidance, regulations, or guidelines are up13 dated or issued under subsection (d), the Secretary shall 

14 process credit under section 104 of the Water Resources 

15 Development Act of 1986 (33 U.S.C. 2214), upon request 

16 of a non-Federal interest, if— 

17 (1) the applicable non-Federal work meets the 

18 requirements for credit under section 104; and 

19 (2) the applicable non-Federal work does not 

20 meet the requirements for credit under existing 

21 guidelines for section 221 of the Flood Control Act 

22 of 1970 (42 U.S.C. 1962d–5b). 

23 (f) AVAILABILITY OF CREDIT.—Credit for in-kind 

24 contributions authorized under section 221 of the Flood 

25 Control Act of 1970 (42 U.S.C. 1962d–5b) or section 104 

mstockstill on DSK4VPTVN1PROD with BILLS

12 

•HR 2293 IH

1 of the Water Resources Development Act of 1986 (33 

2 U.S.C. 2214) shall be available for work performed by a 

3 non-Federal interest on any separable element of a project 

4 following the identification by the Secretary of project al5 ternatives as part of a feasibility study or a general or 

6 limited reevaluation report. 

7 (g) OTHER CREDIT.—Nothing in section 221(a)(4) 

8 of the Flood Control Act of 1970 (42 U.S.C. 1962d– 

9 5b(a)(4)) (as amended by subsection (a)) affects any eligi10 bility for credit under section 104 of the Water Resources 

11 Development of 1986 (33 U.S.C. 2214) that was approved 

12 by the Secretary prior to the date of enactment of this 

13 Act. 

Æ 

mstockstill on DSK4VPTVN1PROD with BILLS