33 U.S.C. § 579d–2 (NAVIGATION AND NAVIGABLE WATERS)
§ 579d–2. Deauthorization of inactive projects
(a) Purposes
The purposes of this section are—
(1) to identify water resources development projects authorized by Congress that are no longer viable for construction due to—
(A) a lack of local support;
(B) a lack of available Federal or non-Federal resources; or
(C) an authorizing purpose that is no longer relevant or feasible;
(2) to create an expedited and definitive process for Congress to deauthorize water resources development projects that are no longer viable for construction; and
(3) to allow the continued authorization of water resources development projects that are viable for construction.
(b) Proposed deauthorization list
(1) Preliminary list of projects
(A) In general
The Secretary shall develop a preliminary list of each water resources development project, or separable element of a project, authorized for construction before November 8, 2007, for which—
(i) planning, design, or construction was not initiated before December 27, 2020; or
(ii) planning, design, or construction was initiated before December 27, 2020, but for which no funds, Federal or non-Federal, were obligated for planning, design, or construction of the project or separable element of the project during the current fiscal year or any of the 10 preceding fiscal years.
(B) Use of comprehensive construction backlog and operation and maintenance report
The Secretary may develop the preliminary list from the comprehensive construction backlog and operation and maintenance reports developed pursuant to section 1001(b)(2) of the Water Resources Development Act of 1986 (33 U.S.C. 579a [(b)(2)]).
(C) Exclusions
The Secretary shall not include on the preliminary list—
(i) an environmental infrastructure assistance project authorized to be carried out by the Secretary (including a project authorized pursuant to an environmental assistance program); or
(ii) a project or separable element of a project authorized as part of the Comprehensive Everglades Restoration Plan described in section 601 of the Water Resources Development Act of 2000 (114 Stat. 2680).
(2) Preparation of proposed deauthorization list
(A) Deauthorization amount
The Secretary shall prepare a proposed list of projects for deauthorization comprised of a subset of projects and separable elements identified on the preliminary list developed under paragraph (1) that have, in the aggregate, an estimated Federal cost to complete that is at least $10,000,000,000.
(B) Determination of Federal cost to complete
For purposes of subparagraph (A), the Federal cost to complete shall take into account any allowances authorized by section 2280 of this title, as applied to the most recent project schedule and cost estimate.
(C) Inclusion of deauthorization of antiquated projects
The Secretary shall reduce the amount identified for deauthorization under paragraph (2)(A) by an amount equivalent to the estimated current value of each project, or separable element of a project, that is deauthorized by subsection (f).
(3) Sequencing of projects
(A) In general
The Secretary shall identify projects and separable elements for inclusion on the proposed list of projects for deauthorization under paragraph (2) according to the order in which the projects and separable elements were authorized, beginning with the earliest authorized projects and separable elements and ending with the latest project or separable element necessary to meet the aggregate amount under paragraph (2)(A).
(B) Factors to consider
The Secretary may identify projects and separable elements in an order other than that established by subparagraph (A) if the Secretary determines, on a case-by-case basis, that a project or separable element is critical for interests of the United States, based on the possible impact of the project or separable element on public health and safety, the national economy, or the environment.
(4) Public comment and consultation
(A) In general
The Secretary shall solicit comments from the public and the Governors of each applicable State on the proposed deauthorization list prepared under paragraph (2)(A).
(B) Comment period
The public comment period shall be 90 days.
(5) Preparation of final deauthorization list
(A) In general
The Secretary shall prepare a final deauthorization list by—
(i) considering any comments received under paragraph (4); and
(ii) revising the proposed deauthorization list prepared under paragraph (2)(A) as the Secretary determines necessary to respond to such comments.
(B) Appendix
The Secretary shall include as part of the final deauthorization list an appendix that—
(i) identifies each project or separable element on the proposed deauthorization list that is not included on the final deauthorization list; and
(ii) describes the reasons why the project or separable element is not included on the final deauthorization list.
(c) Submission of final deauthorization list to Congress for congressional review; publication
(1) In general
Not later than 90 days after the date of the close of the comment period under subsection (b)(4), the Secretary shall—
(A) submit the final deauthorization list and appendix prepared under subsection (b)(5) to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate; and
(B) publish the final deauthorization list and appendix in the Federal Register.
(2) Exclusions
The Secretary shall not include in the final deauthorization list submitted under paragraph (1) any project or separable element with respect to which Federal funds for planning, design, or construction are obligated after the development of the preliminary list under subsection (b)(1)(A) but prior to the submission of the final deauthorization list under paragraph (1)(A) of this subsection.
(d) Deauthorization; congressional review
(1) In general
After the expiration of the 2-year period beginning on the date of publication of the final deauthorization list and appendix under subsection (c)(1)(B), a project or separable element of a project identified in the final deauthorization list is hereby deauthorized, unless Congress passes a joint resolution disapproving the final deauthorization list prior to the end of such period.
(2) Non-Federal contributions
(A) In general
A project or separable element of a project identified in the final deauthorization list under subsection (c) shall not be deauthorized under this subsection if, before the expiration of the 2-year period referred to in paragraph (1), the non-Federal interest for the project or separable element of the project provides sufficient funds to complete the project or separable element of the project.
(B) Treatment of projects
Notwithstanding subparagraph (A), each project and separable element of a project identified in the final deauthorization list shall be treated as deauthorized for purposes of the aggregate deauthorization amount specified in subsection (b)(2)(A).
(3) Projects identified in appendix
A project or separable element of a project identified in the appendix to the final deauthorization list shall remain subject to future deauthorization by Congress.
(e) Special rules
(1) Post-authorization studies
A project or separable element of a project may not be identified on the proposed deauthorization list developed under subsection (b), or the final deauthorization list developed under subsection (c), if the project or separable element received funding for a post-authorization study during the current fiscal year or any of the 10 preceding fiscal years.
(2) Treatment of project modifications
For purposes of this section, if an authorized water resources development project or separable element of the project has been modified by an Act of Congress, the date of the authorization of the project or separable element shall be deemed to be the date of the most recent such modification.
(f) Deauthorization of antiquated projects
(1) In general
Any water resources development project, or separable element of a project, authorized for construction prior to November 17, 1986, for which construction has not been initiated prior to December 27, 2020, or for which funds have not been obligated for construction in the 10-year period prior to December 27, 2020, is hereby deauthorized.
(2) Identification
Not later than 60 days after December 27, 2020, the Secretary shall issue 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 that identifies—
(A) the name of each project, or separable element of a project, deauthorized by paragraph (1); and
(B) the estimated current value of each such project or separable element of a project.
(g) Economic and environmental review of inactive water resources development projects
The Secretary or the non-Federal interest may not carry out any authorized water resources development project, or separable element of such project, for which construction has not been initiated in the 20-year period following the date of the authorization of such project or separable element, until—
(1) the Secretary provides to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a post-authorization change report that updates the economic and environmental analysis of the project or separable element; and
(2) the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate take appropriate action to address any modifications to the economic and environmental analysis for the project or separable element of the project contained in the post-authorization change report.
(h) Definitions
In this section:
(1) Post-authorization change report
The term “post-authorization change report” has the meaning given such term in section 1132(d) of the Water Resources Development Act of 2016 (33 U.S.C. 2282e[d]).
(2) Post-authorization study
The term “post-authorization study” means—
(A) a feasibility report developed under section 2282 of this title;
(B) a feasibility study, as defined in section 2215(d) of this title; or
(C) a review conducted under section 549a of this title, including an initial appraisal that—
(i) demonstrates a Federal interest; and
(ii) requires additional analysis for the project or separable element.
(Pub. L. 116–260, div. AA, title III, § 301, Dec. 27, 2020, 134 Stat. 2699.)
heading: Editorial Notes
heading: References in Text
text: Section 601 of the Water Resources Development Act of 2000, referred to in subsec. (b)(1)(C)(ii), is section 601 of Pub. L. 106–541, title VI, Dec. 11, 2000, 114 Stat. 2680, which is not classified to the Code.
heading: Statutory Notes and Related Subsidiaries
heading: “Secretary” Defined
text: Secretary means the Secretary of the Army, see section 2 of div. AA of Pub. L. 116–260, set out as a note under section 2201 of this title.