33 U.S.C. § 2269 (NAVIGATION AND NAVIGABLE WATERS)
§ 2269. Tribal partnership program
(a) Definition of Indian tribe
In this section, the term “Indian tribe” has the meaning given the term in section 5304 of title 25.
(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 section 1151 of title 18, and including lands that are within the jurisdictional area of an Oklahoma Indian tribe, as determined by the Secretary of the Interior, and are recognized by the Secretary of the Interior as eligible for trust land status under part 151 of title 25, Code of Federal Regulations) or in proximity to Alaska Native villages.
(2) Authorized activities
An activity conducted under paragraph (1) may address—
(A) projects for flood 1 hurricane and storm damage reduction, including erosion control, environmental restoration and protection, and preservation of cultural and natural resources;
(B) watershed assessments and planning activities;
(C) technical assistance to an Indian tribe, including—
(i) assistance for planning to ameliorate flood hazards, to avoid repetitive flood impacts, to anticipate, prepare, and adapt to changing hydrological and climatic conditions and extreme weather events, and to withstand, respond to, and recover rapidly from disruption due to flood hazards; and
(ii) the provision of, and integration into planning of, hydrologic, economic, and environmental data and analyses; and
(D) 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.
(C) Initial costs
The first $200,000 of the costs of a study under this section shall be at Federal expense.
(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 $26,000,000.
(B) Specific authorization
If the Federal share of the cost of the project or separable element described in subparagraph (A) is more than $26,000,000, 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.
(5) Project justification
Notwithstanding any requirement for economic justification established under section 1962–2 of title 42, the Secretary may implement a project (other than a project for ecosystem restoration) under this section if the Secretary determines that the project will—
(A) significantly reduce potential flood or hurricane and storm damage hazards (which may be limited to hazards that may be addressed by measures for erosion mitigation or bank stabilization);
(B) improve the quality of the environment;
(C) reduce risks to life safety associated with the hazards described in subparagraph (A); and
(D) improve the long-term viability of the community.
(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 sections 2211 and 2213 of this title and shared in the same percentages as the purposes to which the costs are assigned.
(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 Federal share of costs of other water-related planning activities described in subsection (b)(1) shall be 100 percent.
(6) Technical assistance
The Federal share of the cost of activities described in subsection (b)(2)(C) shall be 100 percent.
(e) Restrictions
The Secretary is authorized to carry out activities under this section for fiscal years 2015 through 2033.
(Pub. L. 106–541, title II, § 203, Dec. 11, 2000, 114 Stat. 2588; Pub. L. 110–114, title II, § 2011, Nov. 8, 2007, 121 Stat. 1074; Pub. L. 113–121, title I, § 1031(a), June 10, 2014, 128 Stat. 1232; Pub. L. 114–322, title I, § 1121, Dec. 16, 2016, 130 Stat. 1644; Pub. L. 115–270, title I, § 1157(i), Oct. 23, 2018, 132 Stat. 3794; Pub. L. 116–260, div. AA, title III, § 303, Dec. 27, 2020, 134 Stat. 2703; Pub. L. 117–263, div. H, title LXXXI, § 8111, Dec. 23, 2022, 136 Stat. 3703.)
heading: Editorial Notes
heading: Codification
text: 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.
heading: Amendments
text: 2022—Subsec. (a). Pub. L. 117–263, § 8111(1), made technical amendment to reference in original act which appears in text as reference to section 5304 of title 25.
Subsec. (b)(2)(A). Pub. L. 117–263, § 8111(2)(A)(i), inserted “hurricane and storm” after “flood” and “including erosion control,” after “reduction,”.
Subsec. (b)(2)(C), (D). Pub. L. 117–263, § 8111(2)(A)(ii)–(iv), added subpar. (C) and redesignated former subpar. (C) as (D).
Subsec. (b)(3)(C). Pub. L. 117–263, § 8111(2)(B), added subpar. (C).
Subsec. (b)(4)(A). Pub. L. 117–263, § 8111(2)(C)(i), substituted “$26,000,000” for “$18,500,000”.
Subsec. (b)(4)(B). Pub. L. 117–263, § 8111(2)(C)(ii), substituted “$26,000,000” for “$18,500,000”.
Subsec. (b)(5). Pub. L. 117–263, § 8111(2)(D), added par. (5).
Subsec. (d)(5)(B). Pub. L. 117–263, § 8111(3)(A), substituted “Federal” for “non-Federal” and “100 percent” for “50 percent”.
Subsec. (d)(6). Pub. L. 117–263, § 8111(3)(B), added par. (6).
Subsec. (e). Pub. L. 117–263, § 8111(4), substituted “2033” for “2024”.
2020—Subsec. (b)(4). Pub. L. 116–260 substituted “$18,500,000” for “$12,500,000” in subpars. (A) and (B).
2018—Subsec. (b)(4). Pub. L. 115–270 amended par. (4) generally. Prior to amendment, text read as follows:
“(A) In general.—The Secretary may carry out the design and construction of a water resources development project described in paragraph (1) that the Secretary determines is feasible if the Federal share of the cost of the project is not more than $10,000,000.
“(B) Specific authorization.—If the Federal share of the cost of a project described in subparagraph (A) is more than $10,000,000, the Secretary may only carry out the project if Congress enacts a law authorizing the Secretary to carry out the project.”
2016—Subsec. (b)(1). Pub. L. 114–322, § 1121(1)(A), substituted “the Secretary may carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects,” for “the Secretary may carry out water-related planning activities and study and determine the feasibility of carrying out water resources development projects” in introductory provisions.
Subsec. (b)(2). Pub. L. 114–322, § 1121(1)(B), substituted “Authorized activities” for “Matters to be studied” in heading and “An activity” for “A study” in introductory provisions.
Subsec. (b)(3), (4). Pub. L. 114–322, § 1121(1)(C), added pars. (3) and (4).
Subsec. (c)(1). Pub. L. 114–322, § 1121(2)(A), substituted “an activity” for “studies”.
Subsec. (c)(2)(B). Pub. L. 114–322, § 1121(2)(B), substituted “an activity conducted” for “carrying out projects studied”.
Subsec. (d)(1)(A). Pub. L. 114–322, § 1121(3)(A), substituted “an activity conducted” for “a study”.
Subsec. (d)(2) to (5). Pub. L. 114–322, § 1121(3)(B), added pars. (2) to (5) and struck out former par. (2). Prior to amendment, text of par. (2) read as follows: “The Secretary may credit toward the non-Federal share of the costs of a study under subsection (b) the cost of services, studies, supplies, or other in-kind contributions provided by the non-Federal interest if the Secretary determines that the services, studies, supplies, and other in-kind contributions will facilitate completion of the study.”
2014—Subsec. (d)(1)(B). Pub. L. 113–121, § 1031(a)(1), designated existing provisions as cl. (i), inserted heading, and added cl. (ii).
Subsec. (e). Pub. L. 113–121, § 1031(a)(2), added subsec. (e) and struck out former subsec. (e) which authorized appropriations for fiscal years 2002 to 2012.
2007—Subsec. (b)(1). Pub. L. 110–114, § 2011(a)(1), inserted “carry out water-related planning activities and” after “the Secretary may” in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 110–114, § 2011(a)(2), inserted “, and including lands that are within the jurisdictional area of an Oklahoma Indian tribe, as determined by the Secretary of the Interior, and are recognized by the Secretary of the Interior as eligible for trust land status under part 151 of title 25, Code of Federal Regulations” after “section 1151 of title 18”.
Subsec. (b)(2). Pub. L. 110–114, § 2011(a)(3), added subpar. (B) and redesignated former subpar. (B) as (C).
Subsec. (e). Pub. L. 110–114, § 2011(b), substituted “2012” for “2006”.
heading: Statutory Notes and Related Subsidiaries
heading: “Secretary” Defined
text: Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.