33 U.S.C. § 2232 (NAVIGATION AND NAVIGABLE WATERS)
§ 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) of this title;
(2) a completed feasibility study developed under section 2231 of this title; 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 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 section 2231(c)(3) of this title.
(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; and
(B) ensure that a final environmental impact statement or environmental assessment, as appropriate, for the project or separable element has been filed.
(c) Studies and engineering
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.
(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 section 1962d–5b of title 42, 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) subject to the requirements of this section and section 2223 of this title, 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; and
(B) the Secretary certifies that the project has been constructed in accordance with—
(i) all applicable permits or approvals; and
(ii) this section.
(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 a discrete segment of a flood damage reduction 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 flood damage reduction 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 flood damage reduction 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 flood damage reduction 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 flood damage reduction project, 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 flood damage reduction 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 section 2211(b) of this title if—
(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.
(Pub. L. 99–662, title II, § 204, Nov. 17, 1986, 100 Stat. 4099; Pub. L. 101–640, title III, § 303, Nov. 28, 1990, 104 Stat. 4634; Pub. L. 113–121, title I, § 1014(b)(1), June 10, 2014, 128 Stat. 1220; Pub. L. 114–322, title I, § 1127, Dec. 16, 2016, 130 Stat. 1648.)
heading: Amendments
text: 2016—Subsec. (d)(5). Pub. L. 114–322 added par. (5).
2014—Pub. L. 113–121 amended section generally. Prior to amendment, section related to construction of projects by non-Federal interests.
1990—Subsec. (c). Pub. L. 101–640, § 303(a), 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 section 577 of this title or, upon request of such non-Federal interest, to terminate such study and transmit such partially completed study to the non-Federal interest.”
Subsec. (e). Pub. L. 101–640, § 303(b)(1), redesignated subsec. (e), relating to operation and maintenance, as (f).
Subsec. (e)(1). Pub. L. 101–640, § 303(b)(2), (3), in introductory provisions inserted “including any small navigation project approved pursuant to section 577 of this title,” 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”.
Subsec. (f). Pub. L. 101–640, § 303(b)(1), redesignated subsec. (e), relating to operation and maintenance, as (f). Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 101–640, § 303(b)(1), redesignated subsec. (f) as (g).
heading: Savings Provision
text: Pub. L. 113–121, title I, § 1014(d), June 10, 2014, 128 Stat. 1222, provided that:
“Nothing in this section [amending this section and section 2231 of this title, 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 [June 10, 2014], or an agreement that is finalized between the Corps of Engineers and a non-Federal interest on or before December 31, 2014, under any of the following sections (as such sections were in effect on the day before such date of enactment):
“(1) Section 204 of the Water Resources Development Act of 1986 (33 U.S.C. 2232).
“(2) Section 206 of the Water Resources Development Act of 1992 (33 U.S.C. 426i–1).
“(3) Section 211 of the Water Resources Development Act of 1996 (33 U.S.C. 701b–13).”
heading: Navigation Safety
text: Pub. L. 114–322, title I, § 1102, Dec. 16, 2016, 130 Stat. 1633, provided that: “The Secretary [of the Army] shall use section 5 of the Act of March 4, 1915 (38 Stat. 1053, chapter 142; 33 U.S.C. 562), 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 (33 U.S.C. 2232(f)).”
heading: Operation and Maintenance of Certain Projects
text: Pub. L. 113–121, title I, § 1016, June 10, 2014, 128 Stat. 1223, provided that: “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 (33 U.S.C. 2211(b)) (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 December 31, 2014, if the Secretary determines that the requirements under paragraphs (2) and (3) of section 204(f) of the Water Resources Development Act of 1986 (33 U.S.C. 2232(f)) are met.”
heading: Demonstration of Construction of Federal Project by Non-Federal Interests
text: Pub. L. 101–640, title IV, § 404, Nov. 28, 1990, 104 Stat. 4646, which related to the demonstration of safety benefits and economic efficiencies of non-Federal management of harbor improvement projects, was repealed by Pub. L. 113–121, title I, § 1014(c)(1), June 10, 2014, 128 Stat. 1222.