33 U.S.C. § 2213 — Flood control and other purposes

Page 704 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 (c) Floodgates on the Inland Waterways (1) Operation and maintenance carried out by the Secretary Notwithstanding any other provision of law, the Secretary shall be responsible for the oper- ation and maintenance, including repair, of any flood gate, as well as any pumping station constructed within the channel as a single unit with that flood gate, that— (A) was constructed as of June 10, 2014, as a feature of an authorized hurricane and storm damage reduction project; and (B) crosses an inland or intracoastal wa- terway described in section 1804 of this title. (2) Non-Federal cost share The non-Federal share of the cost of oper- ation, maintenance, repair, rehabilitation, and replacement of any structure under this sub- section shall be 35 percent. (d) Authorizations from general fund Any Federal responsibility— (1) with respect to a project authorized by title III or section 652(j) of this title, or (2) with respect to the portion of the project authorized by section 844 allocated to inland navigation, which responsibility is not provided for in sub- section (a) of this section shall be paid only from amounts appropriated from the general fund of the Treasury. (Pub. L. 99–662, title I, § 102, Nov. 17, 1986, 100 Stat. 4084; Pub. L. 113–121, title II, § 2013, June 10, 2014, 128 Stat. 1271; Pub. L. 117–263, div. H, title LXXXI, § 8157(a), Dec. 23, 2022, 136 Stat. 3738; Pub. L. 118–272, div. A, title I, § 1126(a), Jan. 4, 2025, 138 Stat. 3018.) Editorial Notes REFERENCES IN TEXT Title III of this Act, referred to in subsecs. (a)(1) and (d)(1), is title III of Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4109, consisting of sections 301 and 302. The projects authorized by title III probably mean the projects authorized by section 301 of Pub. L. 99–662, which is not classified to the Code. Section 302 of Pub. L. 99–662, which established the Inland Waterways Users Board, is classified to section 2251 of this title. Section 844 of this Act, referred to in subsecs. (a)(3) and (d)(2), is section 844 of Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4177, which is not classified to the Code. AMENDMENTS 2025—Subsec. (a). Pub. L. 118–272 substituted ‘‘75 per- cent of the costs’’ for ‘‘65 percent of the costs’’ in intro- ductory provisions and ‘‘25 percent of such costs’’ for ‘‘35 percent of such costs’’ in concluding provisions. 2022—Subsec. (a). Pub. L. 117–263 substituted ‘‘65 per- cent of the costs’’ for ‘‘One-half of the costs’’ in intro- ductory provisions and ‘‘35 percent of such costs’’ for ‘‘One-half of such costs’’ in concluding provisions. 2014—Subsecs. (c), (d). Pub. L. 113–121 added subsec. (c) and redesignated former subsec. (c) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2025 AMENDMENT Pub. L. 118–272, div. A, title I, § 1126(b), Jan. 4, 2025, 138 Stat. 3018, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply be- ginning on October 1, 2024, to any construction of a project for navigation on the inland waterways that is new or ongoing on or after that date.’’ EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–263, div. H, title LXXXI, § 8157(b), Dec. 23, 2022, 136 Stat. 3738, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply beginning on October 1, 2022, to any construction of a project for navigation on the inland waterways that is new or ongoing on or after that date.’’ INLAND WATERWAY PROJECTS Pub. L. 116–260, div. AA, title I, § 109, Dec. 27, 2020, 134 Stat. 2624, as amended by Pub. L. 117–263, div. H, title LXXXI, § 8157(c), Dec. 23, 2022, 136 Stat. 3738, provided that: ‘‘Notwithstanding section 102 of the Water Re- sources Development Act of 1986 (33 U.S.C. 2212), for a project for navigation on the inland waterways receiv- ing a construction appropriation during any of fiscal years 2021 through 2022, 35 percent of the costs of con- struction of the project shall be paid from amounts ap- propriated from the Inland Waterways Trust Fund until such construction of the project is complete.’’ ACCEPTANCE OF CONTRIBUTED FUNDS TO INCREASE LOCK OPERATIONS Pub. L. 113–121, title I, § 1017, June 10, 2014, 128 Stat. 1223, as amended by Pub. L. 115–270, title I, § 1135, Oct. 23, 2018, 132 Stat. 3783, provided that: ‘‘(a) IN GENERAL.—The Secretary [of the Army], after providing public notice, shall establish a pilot program for the acceptance and expenditure of funds contributed by non-Federal interests to increase the hours of oper- ation of locks at water resources development projects. ‘‘(b) APPLICABILITY.—The establishment of the pilot program under this section shall not affect the periodic review and adjustment of hours of operation of locks based on increases in commercial traffic carried out by the Secretary. ‘‘(c) PUBLIC COMMENT.—Not later than 180 days before a proposed modification to the operation of a lock at a water resources development project will be carried out, the Secretary shall— ‘‘(1) publish the proposed modification in the Fed- eral Register; and ‘‘(2) accept public comment on the proposed modi- fication. ‘‘(d) REPORTS.— ‘‘(1) IN GENERAL.—Not later than 1 year after the date of enactment of this Act [June 10, 2014], the Sec- retary shall submit to the Committee on Environ- ment and Public Works of the Senate and the Com- mittee on Transportation and Infrastructure of the House of Representatives and make publicly avail- able a report that evaluates the cost-savings result- ing from reduced lock hours and any economic im- pacts of modifying lock operations. ‘‘(2) REVIEW OF PILOT PROGRAM.—Not later than September 30, 2017, and each year thereafter, the Sec- retary shall submit to the Committee on Environ- ment and Public Works of the Senate and the Com- mittee on Transportation and Infrastructure of the House of Representatives a report that describes the effectiveness of the pilot program under this section. ‘‘(e) ANNUAL REVIEW.—The Secretary shall carry out an annual review of the commercial use of locks and make any necessary adjustments to lock operations based on that review. ‘‘(f) TERMINATION.—The authority to accept funds under this section shall terminate 10 years after the date of enactment of this Act.’’ § 2213. Flood control and other purposes (a) Flood control (1) General rule The non-Federal interests for a project with costs assigned to flood control (other than a nonstructural project) shall— Page 705 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 (A) pay 5 percent of the cost of the project assigned to flood control during construc- tion of the project; (B) provide all lands, easements, rights-of- way, and dredged material disposal areas re- quired only for flood control and perform all related necessary relocations; and (C) provide that portion of the joint costs of lands, easements, rights-of-way, dredged material disposal areas, and relocations which is assigned to flood control. (2) 35 percent minimum contribution If the value of the contributions required under paragraph (1) of this subsection is less than 35 percent of the cost of the project as- signed to flood control, the non-Federal inter- est shall pay during construction of the project such additional amounts as are nec- essary so that the total contribution of the non-Federal interests under this subsection is equal to 35 percent of the cost of the project assigned to flood control. (3) 50 percent maximum The non-Federal share under paragraph (1) shall not exceed 50 percent of the cost of the project assigned to flood control. The pre- ceding sentence does not modify the require- ment of paragraph (1)(A) of this subsection. (4) Deferred payment of amount exceeding 30 percent If the total amount of the contribution re- quired under paragraph (1) of this subsection exceeds 30 percent of the cost of the project as- signed to flood control, the non-Federal inter- ests may pay the amount of the excess to the Secretary over a 15-year period (or such short- er period as may be agreed to by the Secretary and the non-Federal interests) beginning on the date construction of the project or sepa- rable element is completed, at an interest rate determined pursuant to section 2216 of this title. The preceding sentence does not modify the requirement of paragraph (1)(A) of this subsection. (b) Projects using nonstructural, natural, or na- ture-based features (1) In general The non-Federal share of the cost of a flood risk management or hurricane and storm dam- age risk reduction measure using a non- structural feature, or a natural feature or na- ture-based feature (as those terms are defined in section 2289a(a) of this title), shall be 35 per- cent of the cost of such measures. The non- Federal interests for any such measures shall be required to provide all lands, easements, rights-of-way, dredged material disposal areas, and relocations necessary for the project, but shall not be required to contribute any amount in cash during construction for a non- structural feature if the costs of land, ease- ments, rights-of-way, dredged material dis- posal areas, and relocations for such feature are estimated to exceed 35 percent. (2) Non-Federal contribution in excess of 35 percent At any time during construction of a project, if the Secretary determines that the costs of land, easements, rights-of-way, dredged material disposal areas, and reloca- tions for the project, in combination with other costs contributed by the non-Federal in- terests, will exceed 35 percent, any additional costs for the project (not to exceed 65 percent of the total costs of the project) shall be a Federal responsibility and shall be contributed during construction as part of the Federal share. (c) Other purposes The non-Federal share of the cost assigned to other project purposes shall be as follows: (1) hydroelectric power: 100 percent, except that the marketing of such power and the re- covery of costs of constructing, operating, maintaining, and rehabilitating such projects shall be in accordance with existing law: Pro- vided, That after November 17, 1986, the Sec- retary shall not submit to Congress any pro- posal for the authorization of any water re- sources project that has a hydroelectric power component unless such proposal contains the comments of the appropriate Power Marketing Administrator designated pursuant to section 7152 of title 42 concerning the appropriate Power Marketing Administration’s ability to market the hydroelectric power expected to be generated and not required in the operation of the project under the applicable Federal power marketing law, so that, 100 percent of oper- ation, maintenance and replacement costs, 100 percent of the capital investment allocated to the purpose of hydroelectric power (with inter- est at rates established pursuant to or pre- scribed by applicable law), and any other costs assigned in accordance with law for return from power revenues can be returned within the period set for the return of such costs by or pursuant to such applicable Federal power marketing law; (2) municipal and industrial water supply: 100 percent; (3) agricultural water supply: 35 percent; (4) recreation, including recreational naviga- tion: 50 percent of separable costs and, in the case of any harbor or inland harbor or channel project, 50 percent of joint and separable costs allocated to recreational navigation; (5) hurricane and storm damage reduction: 35 percent; (6) aquatic plant control: 50 percent of con- trol operations; and (7) environmental protection and restora- tion: 35 percent; except that nothing in this paragraph shall affect or limit the applica- bility of section 2283 of this title. (d) Certain other costs assigned to project pur- poses (1) Construction Costs of constructing projects or measures for beach erosion control and water quality enhancement shall be assigned to appropriate project purposes listed in subsections (a), (b), and (c) and shall be shared in the same per- centage as the purposes to which the costs are assigned, except that all costs assigned to ben- efits to privately owned shores (where use of such shores is limited to private interests) or Page 706 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 to prevention of losses of private lands shall be borne by non-Federal interests and all costs assigned to the protection of federally owned shores shall be borne by the United States. (2) Periodic nourishment (A) In general In the case of a project authorized for con- struction after December 31, 1999, except for a project for which a District Engineer’s Re- port is completed by that date, the non-Fed- eral cost of the periodic nourishment of the project, or any measure for shore protection or beach erosion control for the project, that is carried out— (i) after January 1, 2001, shall be 40 per- cent; (ii) after January 1, 2002, shall be 45 per- cent; and (iii) after January 1, 2003, shall be 50 per- cent. (B) Benefits to privately owned shores All costs assigned to benefits of periodic nourishment projects or measures to pri- vately owned shores (where use of such shores is limited to private interests) or to prevention of losses of private land shall be borne by the non-Federal interest. (C) Benefits to federally owned shores All costs assigned to the protection of fed- erally owned shores for periodic nourish- ment measures shall be borne by the United States. (e) Applicability (1) In general This section applies to any project (includ- ing any small project which is not specifically authorized by Congress and for which the Sec- retary has not approved funding before No- vember 17, 1986), or separable element thereof, on which physical construction is initiated after April 30, 1986, as determined by the Sec- retary, except as provided in paragraph (2). For the purpose of the preceding sentence, physical construction shall be considered to be initiated on the date of the award of a con- struction contract. (2) Exceptions This section shall not apply to the Yazoo Basin, Mississippi, Demonstration Erosion Control Program, authorized by Public Law 98–8, or to the Harlan, Kentucky, or Barbourville, Kentucky, elements of the project authorized by section 202 of Public Law 96–367. (f) ‘‘Separable element’’ defined For purposes of this Act, the term ‘‘separable element’’ means a portion of a project— (1) which is physically separable from other portions of the project; and (2) which— (A) achieves hydrologic effects, or (B) produces physical or economic bene- fits, which are separately identifiable from those produced by other portions of the project. (g) Deferral of payment (1) With respect to the projects listed in para- graph (2), no amount of the non-Federal share required under this section shall be required to be paid during the three-year period beginning on November 17, 1986. (2) The projects referred to in paragraph (1) are the following: (A) Boeuf and Tensas Rivers, Tensas Basin, Louisiana and Arkansas, authorized by the Flood Control Act of 1946; (B) Eight Mile Creek, Arkansas, authorized by Public Law 99–88; and (C) Rocky Bayou Area, Yazoo Backwater Area, Yazoo Basin, Mississippi, authorized by the Flood Control Act approved August 18, 1941. (h) Assigned joint and separable costs The share of the costs specified under this sec- tion for each project purpose shall apply to the joint and separable costs of construction of each project assigned to that purpose, except as oth- erwise specified in this Act. (i) Lands, easements, rights-of-way, dredged ma- terial disposal areas, and relocations Except as provided under section 2283(c) of this title, the non-Federal interests for a project to which this section applies shall provide all lands, easements, rights-of-way, and dredged material disposal areas required for the project and perform all necessary relocations, except to the extent limited by any provision of this sec- tion. The value of any contribution under the preceding sentence shall be included in the non- Federal share of the project specified in this sec- tion. (j) Agreement (1) Requirement for agreement (A) In general Any project to which this section applies (other than a project for hydroelectric power) shall be initiated only after non-Fed- eral interests have entered into binding agreements with the Secretary to pay 100 percent of the operation, maintenance, and replacement and rehabilitation costs of the project, to pay the non-Federal share of the costs of construction required by this sec- tion, and to hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or neg- ligence of the United States or its contrac- tors. (B) Inclusion An agreement under subparagraph (A) shall include a brief description and esti- mation of the anticipated operations, main- tenance, and replacement and rehabilitation costs of the non-Federal interest for the project. (2) Elements of agreement The agreement required pursuant to para- graph (1) shall be in accordance with the re- quirements of section 1962d–5b of title 42 and shall provide for the rights and duties of the United States and the non-Federal interest with respect to the construction, operation, and maintenance of the project, including, but not limited to, provisions specifying that, in Page 707 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 the event the non-Federal interest fails to pro- vide the required non-Federal share of costs for such work, the Secretary— (A) shall terminate or suspend work on the project unless the Secretary determines that continuation of the work is in the interest of the United States or is necessary in order to satisfy agreements with other non-Federal interests in connection with the project; and (B) may terminate or adjust the rights and privileges of the non-Federal interest to project outputs under the terms of the agreement. (k) Payment options (1) In general Except as otherwise provided in this section, the Secretary may permit the full non-Federal contribution to be made without interest dur- ing construction of the project or separable element, or with interest at a rate determined pursuant to section 2216 of this title over a pe- riod of not more than thirty years from the date of completion of the project or separable element. Repayment contracts shall provide for recalculation of the interest rate at five- year intervals. (2) Renegotiation of terms (A) In general At the request of a non-Federal interest, the Secretary and the non-Federal interest may renegotiate the terms and conditions of an eligible deferred payment, including— (i) permitting the non-Federal contribu- tion to be made without interest, pursuant to paragraph (1); (ii) recalculation of the interest rate; (iii) full or partial forgiveness of interest accrued during the period of construction; and (iv) a credit against construction inter- est for a non-Federal investment that ben- efits the completion or performance of the project or separable element. (B) Eligible deferred payment An eligible deferred payment agreement under subparagraph (A) is an agreement for which— (i) the non-Federal contribution was made with interest; (ii) the period of project construction ex- ceeds 10 years from the execution of a project partnership agreement or appro- priation of funds; and (iii) the construction interest exceeds $45,000,000. (3) Credit for non-Federal contribution (A) In general The Secretary is authorized to credit any costs incurred by the non-Federal interest (including in-kind contributions) to remedy a design or construction deficiency of a cov- ered project or separable element toward the non-Federal share of the cost of the covered project, if the Secretary determines the rem- edy to be integral to the completion or per- formance of the covered project. (B) Credit of costs If the non-Federal interest incurs costs or in-kind contributions for a project to rem- edy a design or construction deficiency of a project or separable element which has a 100 percent Federal cost share, and the Sec- retary determines the remedy to be integral to the completion or performance of the project, the Secretary is authorized to credit such costs to any interest accrued on a de- ferred non-Federal contribution. (4) Treatment of pre-payment (A) In general Notwithstanding a deferred payment agreement with a non-Federal interest, the Secretary shall accept, without interest of any type, the repayment of a non-Federal contribution for any eligible deferred pay- ment described in paragraph (2)(B) for which— (i) the non-Federal interest made a pay- ment of at least $200,000,000 for that eligi- ble deferred payment agreement on or be- fore September 30, 2021; (ii) the non-Federal interest made a pay- ment of an additional $200,000,000 for that eligible deferred payment agreement on or before September 30, 2023; and (iii) the non-Federal interest repays the balance of remaining principal by June 1, 2032. (B) Repayment options Repayment of a non-Federal interest’s contribution under subparagraph (A)(iii) may be satisfied through the provision by the non-Federal interest of fish and wildlife mitigation for one or more projects or sepa- rable elements, if the Secretary determines that— (i) the non-Federal interest has incurred costs for the provision of mitigation that— (I) equal or exceed the amount of the required repayment; and (II) are in excess of any required non- Federal interest’s contribution for the project or separable element for which the mitigation is provided; and (ii) the mitigation is integral to the project for which it is provided. (C) Refund of credit Any agreement made that applied credits to satisfy the terms of a pre-payment made under subsection (k)(4)(A) that resulted in total payment in excess of the amount now required under subsection (k)(4)(A) shall be modified to indicate that the excess credits continue to apply toward any remaining principal of the respective project, or at the request of the non-Federal interest, the agreement shall be modified to retroactively transfer back those excess credits to the non-Federal interest such that those credits may be applied by the non-Federal interest to any cost-shared project identified by the non-Federal interest. (5) Congressional notification (A) In general Upon receipt of a request for a renegoti- ation of terms by a non-Federal interest under paragraph (2), the Secretary shall sub- Page 708 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 mit to the Committee on Transportation and Infrastructure of the House and the Com- mittee on Environment and Public Works of the Senate a report 30 days after enactment and quarterly thereafter regarding the sta- tus of the request. (B) Sense of Congress It is the sense of Congress that the Sec- retary should respond to any request for a renegotiation of terms submitted under paragraph (2) in a timely manner. (l) Delay of payment (1) Initial payment At the request of any non-Federal interest the Secretary may permit such non-Federal interest to delay the initial payment of any non-Federal contribution under this section or section 2211 of this title for up to one year after the date when construction is begun on the project for which such contribution is to be made. Any such delay in initial payment shall be subject to interest charges for up to six months at a rate determined pursuant to section 2216 of this title. (2) Interest (A) In general At the request of any non-Federal interest, the Secretary may waive the accrual of in- terest on any non-Federal cash contribution under this section or section 2211 of this title for a project for a period of not more than 1 year if the Secretary determines that— (i) the waiver will contribute to the abil- ity of the non-Federal interest to make fu- ture contributions; and (ii) the non-Federal interest is in good standing under terms agreed to under sub- section (k)(1). (B) Limitations The Secretary may grant not more than 1 waiver under subparagraph (A) for the same project. (m) Ability to pay (1) In general Any cost-sharing agreement under this sec- tion for a feasibility study, or for construction of an environmental protection and restora- tion project, a flood control project, a project for navigation, storm damage protection, shoreline erosion, hurricane protection, or recreation, or an agricultural water supply project, shall be subject to the ability of the non-Federal interest to pay. (2) Criteria The Secretary shall determine the ability of a non-Federal interest to pay under this sub- section by considering— (A) per capita income data for the county or counties in which the project is to be lo- cated; (B) the per capita non-Federal cost of con- struction of the project for the county or counties in which the project is to be lo- cated; (C) the financial capabilities of the non- Federal interest for the project; (D) the extent to which the non-Federal interest is an economically disadvantaged community (as defined pursuant to section 160 of the Water Resources Development Act of 2020 (33 U.S.C. 2201 note)); and (E) any additional criteria relating to the non-Federal interest’s financial ability to carry out its cost-sharing responsibilities determined appropriate by the Secretary. (3) Procedures For purposes of carrying out paragraph (2), the Secretary shall develop procedures— (A) to allow a non-Federal interest to iden- tify the amount such non-Federal interest would likely be able to pay; and (B) for a non-Federal interest to submit a request to the Secretary to reduce the re- quired non-Federal share. (4) Non-Federal share Notwithstanding subsection (a), the Sec- retary may reduce the requirement that a non-Federal interest make a cash contribution for any project that is determined to be eligi- ble for a reduction in the non-Federal share under criteria and procedures in effect under paragraphs (1), (2), and (3). (5) Exception This subsection shall not apply to project costs greater than the national economic de- velopment plan. (6) Report (A) In general Not less frequently than annually, the Sec- retary shall submit 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 describing all determina- tions of the Secretary under this subsection regarding the ability of a non-Federal inter- est to pay. (B) Contents The Secretary shall include in each report required under subparagraph (A) a descrip- tion, for the applicable year, of— (i) requests by a non-Federal interest to reduce the non-Federal share required in a cost-sharing agreement, including— (I) the name of the non-Federal inter- est that submitted to the Secretary a re- quest for a determination under this sub- section; and (II) the name and location of the project; (ii) the determination of the Secretary with respect to each such request; (iii) the basis for each such determina- tion; and (iv) the adjusted share of the costs of the project of the non-Federal interest, if ap- plicable. (C) Inclusion in chief’s report The Secretary may include a determina- tion to reduce the non-Federal share re- quired in a cost-sharing agreement for con- struction of a project in the report of the Chief of Engineers for the project. Page 709 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213 1 See References in Text note below. (n) Non-Federal contributions (1) Prohibition on solicitation of excess con- tributions The Secretary may not— (A) solicit contributions from non-Federal interests for costs of constructing author- ized water resources projects or measures in excess of the non-Federal share assigned to the appropriate project purposes listed in subsections (a), (b), and (c); or (B) condition Federal participation in such projects or measures on the receipt of such contributions. (2) Limitation on statutory construction Nothing in this subsection shall be con- strued to affect the Secretary’s authority under section 903(c).1 (Pub. L. 99–662, title I, § 103, Nov. 17, 1986, 100 Stat. 4084; Pub. L. 101–640, title III, § 305(a), Nov. 28, 1990, 104 Stat. 4635; Pub. L. 102–580, title II, § 201(a), title III, § 333(b)(2), Oct. 31, 1992, 106 Stat. 4825, 4852; Pub. L. 104–303, title II, §§ 202(a)(1)(A), (2), (b)(1), 210(a), Oct. 12, 1996, 110 Stat. 3673, 3681; Pub. L. 106–53, title II, §§ 215(a), 219(c), Aug. 17, 1999, 113 Stat. 292, 295; Pub. L. 106–109, § 5, Nov. 24, 1999, 113 Stat. 1495; Pub. L. 106–541, title II, § 204, Dec. 11, 2000, 114 Stat. 2589; Pub. L. 110–114, title II, §§ 2001, 2019(a), Nov. 8, 2007, 121 Stat. 1067, 1078; Pub. L. 116–260, div. AA, title I, §§ 115(b), 143, title III, § 351, Dec. 27, 2020, 134 Stat. 2627, 2653, 2717; Pub. L. 117–263, div. H, title LXXXI, §§ 8385, 8386, Dec. 23, 2022, 136 Stat. 3829, 3830; Pub. L. 118–272, div. A, title I, § 1139(a), title III, §§ 1358, 1359, Jan. 4, 2025, 138 Stat. 3026, 3162.) Editorial Notes REFERENCES IN TEXT Public Law 98–8, referred to in subsec. (e)(2), is Pub. L. 98–8, Mar. 24, 1983, 97 Stat. 13. For complete classi- fication of this Act to the Code, see Tables. Section 202 of Public Law 96–367, referred to in sub- sec. (e)(2), is section 202 of Pub. L. 96–367, title II, Oct. 1, 1980, 94 Stat. 1339, which is not classified to the Code. This Act, referred to in subsecs. (f) and (h), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources Development Act of 1986. For complete clas- sification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables. The Flood Control Act of 1946, referred to in subsec. (g)(2)(A), is act July 24, 1946, ch. 596, 60 Stat. 641. For complete classification of this Act to the Code, see Ta- bles. Public Law 99–88, referred to in subsec. (g)(2)(B), is Pub. L. 99–88, Aug. 15, 1985, 99 Stat. 293, known as the Supplemental Appropriations Act, 1985. Provisions of Pub. L. 99–88 authorizing the project for Eight Mile Creek, Arkansas, are not classified to the Code. For complete classification of this Act to the Code, see Ta- bles. The Flood Control Act approved August 18, 1941, re- ferred to in subsec. (g)(2)(C), is act Aug. 18, 1941, ch. 377, 55 Stat. 638. For complete classification of this Act to the Code, see Tables. Section 160 of the Water Resources Development Act of 2020, referred to in subsec. (m)(2)(D), is section 160 of div. AA of Pub. L. 116–260, which is set out as a note under section 2201 of this title. Section 903(c), referred to in subsec. (n)(2), is section 903(c) of Pub. L. 99–662, title IX, Nov. 17, 1986, 100 Stat. 4184, which is not classified to the Code. AMENDMENTS 2025—Subsec. (k)(4)(A)(i). Pub. L. 118–272, § 1358(1)(A), substituted ‘‘made’’ for ‘‘makes’’. Subsec. (k)(4)(A)(ii). Pub. L. 118–272, § 1358(1)(B), sub- stituted ‘‘made a payment of an additional $200,000,000 for that eligible deferred payment agreement on or be- fore’’ for ‘‘repays an amount equal to 2⁄3 of the remain- ing principal by’’. Subsec. (k)(4)(B), (i)(II). Pub. L. 118–272, § 1358(2), which directed amendment of subpar. (B) by inserting ‘‘interest’s’’ after ‘‘non-Federal’’, was executed by mak- ing the insertion after ‘‘non-Federal’’ the first and fourth place appearing, to reflect the probable intent of Congress. Subsec. (k)(4)(C). Pub. L. 118–272, § 1358(3), added sub- par. (C). Subsec. (k)(5). Pub. L. 118–272, § 1359, added par. (5). Subsec. (m)(2), (3). Pub. L. 118–272, § 1139(a)(1), added pars. (2) and (3) and struck out former pars. (2) and (3) which related to criteria and procedures and revision of criteria and procedures, respectively. Subsec. (m)(5), (6). Pub. L. 118–272, § 1139(a)(2), added pars. (5) and (6). 2022—Subsec. (k)(4). Pub. L. 117–263, § 8386, designated existing provisions as subpar. (A) and inserted heading, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and realigned margins, substituted ‘‘$200,000,000’’ for ‘‘$200 million’’ in cl. (i), inserted ‘‘an amount equal to 2⁄3 of’’ after ‘‘repays’’ in cl. (ii), and added cl. (iii) of subpar. (A) and subpar. (B). Subsec. (l). Pub. L. 117–263, § 8385, struck out ‘‘initial’’ before ‘‘payment’’ in subsec. heading, designated exist- ing provisions as par. (1) and inserted par. heading, and added par. (2). 2020—Subsec. (b). Pub. L. 116–260, § 115(b)(1), sub- stituted ‘‘Projects using nonstructural, natural, or na- ture-based features’’ for ‘‘Nonstructural flood control projects’’ in heading. Subsec. (b)(1). Pub. L. 116–260, § 115(b)(2), substituted ‘‘a flood risk management or hurricane and storm dam- age risk reduction measure using a nonstructural fea- ture, or a natural feature or nature-based feature (as those terms are defined in section 2289a(a) of this title),’’ for ‘‘nonstructural flood control measures’’ and ‘‘cash during construction for a nonstructural feature if the costs of land, easements, rights-of-way, dredged material disposal areas, and relocations for such fea- ture are estimated to exceed 35 percent’’ for ‘‘cash dur- ing construction of the project’’. Subsec. (j)(1). Pub. L. 116–260, § 143, designated exist- ing provisions as subpar. (A), inserted heading, and added subpar. (B). Subsec. (k). Pub. L. 116–260, § 351, designated existing provisions as par. (1), inserted heading, and added pars. (2) to (4). 2007—Subsec. (m)(2). Pub. L. 110–114, § 2019(a), sub- stituted ‘‘December 31, 2007’’ for ‘‘180 days after Decem- ber 11, 2000’’. Subsec. (n). Pub. L. 110–114, § 2001, added subsec. (n). 2000—Subsec. (m)(1), (2). Pub. L. 106–541, § 204(1), added pars. (1) and (2) and struck out former pars. (1) and (2) which required any cost-sharing agreement to be sub- ject to the ability of a non-Federal interest to pay and required the Secretary to determine ability to pay using certain criteria and procedures. Subsec. (m)(3)(B), (C). Pub. L. 106–541, § 204(2), redesig- nated subpar. (C) as (B) and struck out former subpar. (B) which read as follows: ‘‘shall not consider criteria (other than criteria described in subparagraph (A)) in effect on the day before October 12, 1996; and’’. 1999—Subsec. (b). Pub. L. 106–53, § 219(c)(1), which di- rected insertion of the par. (1) designation and heading before ‘‘The non-Federal’’, was executed by making the insertion before that phrase the first place it appeared to reflect the probable intent of Congress. Subsec. (b)(2). Pub. L. 106–53, § 219(c)(2), added par. (2). Subsec. (d). Pub. L. 106–53, § 215(a), designated exist- ing provisions as par. (1), inserted heading, and added par. (2). Page 710 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2213a Subsec. (d)(2)(A). Pub. L. 106–109 substituted ‘‘except for a project for which a District Engineer’s Report is completed by that date,’’ for ‘‘or for which a feasibility study is completed after that date,’’. 1996—Subsecs. (a)(2), (b). Pub. L. 104–303, § 202(a)(1)(A), substituted ‘‘35 percent’’ for ‘‘25 percent’’ wherever ap- pearing. Subsec. (c)(7). Pub. L. 104–303, § 210(a), added par. (7). Subsec. (e)(1). Pub. L. 104–303, § 202(a)(2), inserted at end ‘‘For the purpose of the preceding sentence, phys- ical construction shall be considered to be initiated on the date of the award of a construction contract.’’ Subsec. (m). Pub. L. 104–303, § 202(b)(1), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘Any cost- sharing agreement under this section for flood control or agricultural water supply shall be subject to the ability of a non-Federal interest to pay. The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures estab- lished by the Secretary.’’ 1992—Subsec. (i). Pub. L. 102–580, § 333(b)(2), sub- stituted ‘‘Except as provided under section 2283(c) of this title, the non-Federal’’ for ‘‘The non-Federal’’. Subsec. (m). Pub. L. 102–580, § 201(a), amended subsec. (m) generally. Prior to amendment, subsec. (m) read as follows: ‘‘(1) GENERAL RULE.—Any cost-sharing agreement under this section for flood control or agricultural water supply shall be subject to the ability of a non- Federal interest to pay. ‘‘(2) PROCEDURES.— ‘‘(A) IN GENERAL.—The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Sec- retary. ‘‘(B) LIMITATIONS.—The procedures established pur- suant to this subsection shall provide for a reduction in any non-Federal cash contribution required under subsection (a)(2) of this section. In addition, such pro- cedures shall provide for determination of the eligi- bility of the non-Federal interest for a reduction in the required cash contribution on the basis of local, not statewide, economic and financial data. ‘‘(C) REGULATIONS.—Not later than 1 year after No- vember 28, 1990, the Secretary shall issue regulations establishing the procedures required by this para- graph.’’ 1990—Subsec. (m). Pub. L. 101–640 amended subsec. (m) generally. Prior to amendment, subsec. (m) read as follows: ‘‘Any cost-sharing agreement under this sec- tion for flood control or agricultural water supply shall be subject to the ability of a non-Federal interest to pay. The ability of any non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–303, title II, § 202(a)(1)(B), Oct. 12, 1996, 110 Stat. 3673, provided that: ‘‘The amendments made by subparagraph (A) [amending this section] shall apply to any project authorized after the date of the enactment of this Act [Oct. 12, 1996] and to any flood control project that is not specifically authorized by Congress for which a Detailed Project Report is approved after such date of enactment or, in the case of a project for which no Detailed Project Report is prepared, construc- tion is initiated after such date of enactment.’’ Pub. L. 104–303, title II, § 202(b)(2), Oct. 12, 1996, 110 Stat. 3674, provided that: ‘‘(A) GENERALLY.—Subject to subparagraph (C), the amendment made by paragraph (1) [amending this sec- tion] shall apply to any project, or separable element thereof, with respect to which the Secretary and the non-Federal interest enter into a project cooperation agreement after December 31, 1997. ‘‘(B) AMENDMENT OF COOPERATION AGREEMENT.—If re- quested by the non-Federal interest, the Secretary shall amend a project cooperation agreement executed on or before the date of the enactment of this Act [Oct. 12, 1996] to reflect the application of the amendment made by paragraph (1) to any project for which a con- tract for construction has not been awarded on or be- fore such date of enactment. ‘‘(C) NON-FEDERAL OPTION.—If requested by the non- Federal interest, the Secretary shall apply the criteria and procedures established pursuant to section 103(m) of the Water Resources Development Act of 1986 [sub- sec. (m) of this section] as in effect on the day before the date of the enactment of this Act for projects that are authorized before the date of the enactment of this Act.’’ [Reference to ‘‘project cooperation agreement’’ deemed to be reference to ‘‘project partnership agree- ment’’, see section 2003(f)(2) of Pub. L. 110–114, set out as a note under section 1962d–5b of Title 42, The Public Health and Welfare.] Pub. L. 104–303, title II, § 210(b), Oct. 12, 1996, 110 Stat. 3681, provided that: ‘‘The amendments made by sub- section (a) [amending this section] apply only to projects authorized after the date of the enactment of this Act [Oct. 12, 1996].’’ CONTINUATION OF EXISTING REGULATIONS Pub. L. 101–640, title III, § 305(b), Nov. 28, 1990, 104 Stat. 4635, provided that: ‘‘Regulations issued to carry out section 103(m) of the Water Resources Development Act of 1986 [33 U.S.C. 2213(m)] before the date of the en- actment of this Act [Nov. 28, 1990] and in effect on such date shall continue in effect until regulations are issued pursuant to paragraph (2)(C) of such section, as added by subsection (a) of this section.’’ UPDATE TO GUIDANCE Pub. L. 118–272, div. A, title I, § 1139(b), Jan. 4, 2025, 138 Stat. 3027, provided that: ‘‘Not later than 1 year after the date of enactment of this Act [Jan. 4, 2025], the Sec- retary [of the Army] shall update any agency guidance or regulation relating to the ability of a non-Federal interest to pay as necessary to reflect the amendments made by this section [amending this section].’’ REPORTS TO CONGRESS Pub. L. 100–71, title I, July 11, 1987, 101 Stat. 401, pro- vided that: ‘‘The Secretary of the Army shall file a re- port with the appropriate committees of the House of Representatives and the Senate within ninety days after a written request is made pursuant to the provi- sions of subsection (m) of section 103 of Public Law 99–662 [33 U.S.C. 2213(m)] indicating the action taken on the request. In addition, the Secretary of the Army shall file a report with the appropriate committees of the House of Representatives and the Senate within ninety days after enactment of this Act [July 11, 1987] listing any project or study falling under the provisions of subsection (e)(1) of section 103 of Public Law 99–662.’’ § 2213a. Treatment of certain benefits and costs (a) In general In the case of a flood risk management or coastal storm risk management project in a re- gion of moderate or high seismic hazard, for the purpose of a benefit-cost analysis for the project, the Secretary shall not include in that analysis any additional design and construction costs resulting from addressing seismic con- cerns. (b) Savings provision Except with respect to the benefit-cost anal- ysis, the additional costs referred to in sub- section (a) shall be— (1) included in the total project cost; and (2) subject to cost-share requirements other- wise applicable to the project.