(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
(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.
Amendments
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).
Savings Provision
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).”
Navigation Safety
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)).”
Operation and Maintenance of Certain Projects
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.”
Demonstration of Construction of Federal Project by Non-Federal Interests
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.