33 U.S.C. § 2231 — Study of water resources development

Page 717 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2231 interest has entered into a memorandum of un- derstanding with the Federal agency that in- cludes such terms and conditions as the Sec- retary determines to be necessary. (c) Applicability Nothing in this section alters any non-Federal cost-sharing requirements for the project. (Pub. L. 113–121, title I, § 1025, June 10, 2014, 128 Stat. 1229.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of Pub. L. 113–121, set out as a note under section 2201 of this title. § 2227. Clarification of impacts to other Federal facilities In any case where the modification or con- struction of a water resources development project carried out by the Secretary adversely impacts other Federal facilities, the Secretary may accept from other Federal agencies such funds as may be necessary to address the ad- verse impact, including by removing, relocating, or reconstructing those facilities. (Pub. L. 113–121, title I, § 1026, June 10, 2014, 128 Stat. 1229.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of Pub. L. 113–121, set out as a note under section 2201 of this title. SUBCHAPTER II—HARBOR DEVELOPMENT § 2231. Study of water resources development projects by non-Federal interests (a) Submission to Secretary (1) In general A non-Federal interest may undertake and submit to the Secretary— (A) a federally authorized feasibility study of a proposed water resources development project; or (B) upon the determination of the Sec- retary that the modifications are consistent with the authorized purposes of the project, a feasibility study on modifications to a water resources development project con- structed by the Corps of Engineers or con- structed by a non-Federal interest pursuant to section 2232 of this title. (2) Guidelines To assist non-Federal interests, the Sec- retary shall issue guidelines for the formula- tion of feasibility studies of water resources development projects undertaken by non-Fed- eral interests that— (A) provide clear, concise, and transparent guidance for the non-Federal interest to use in developing a feasibility study that com- plies with requirements that would apply to a feasibility study undertaken by the Sec- retary; (B) provide sufficient information for the formulation of the studies, including proc- esses and procedures related to reviews and assistance under subsection (e); (C) provide guidance to a non-Federal in- terest on obtaining support from the Sec- retary to complete elements of a feasibility study that may be considered inherently governmental and required to be done by a Federal agency; and (D) provide contacts for employees of the Corps of Engineers that a non-Federal inter- est may use to initiate coordination with the Secretary and identify at what stages coordination may be beneficial. (3) Determination If a non-Federal interest requests to under- take a feasibility study on a modification to a constructed water resources development project under paragraph (1)(B), the Secretary shall expeditiously provide to the non-Federal interest the determination required under such paragraph with respect to whether con- ceptual modifications, as presented by the non-Federal interest, are consistent with the authorized purposes of the project. (b) Review by Secretary (1) In general The Secretary shall review each feasibility study received under subsection (a)(1) for the purpose of determining whether or not the study, and the process under which the study was developed, each comply with Federal laws and regulations applicable to feasibility stud- ies of water resources development projects. (2) Timing The Secretary may not submit to Congress an assessment of a feasibility study under this section until such time as the Secretary— (A) determines that the feasibility study complies with all of the requirements that would apply to a feasibility study under- taken by the Secretary; and (B) completes all of the Federal analyses, reviews, and compliance processes under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), that would be re- quired with respect to the proposed project if the Secretary had undertaken the feasi- bility study. (3) Initiation of review (A) Request (i) Submission The non-Federal interest may submit to the Secretary a request that the Secretary Page 718 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2231 initiate the analyses, reviews, and compli- ance processes described in paragraph (2)(B) with respect to the proposed project prior to the non-Federal interest’s submis- sion of a feasibility study under subsection (a)(1). (ii) Effect Receipt by the Secretary of a request submitted under clause (i) shall be consid- ered the receipt of a proposal or applica- tion that will lead to a major Federal ac- tion that is subject to the requirements of section 102(2)(C) of the National Environ- mental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) that would be required if the Secretary were to undertake the feasi- bility study. (B) Deadline Not later than 10 days after the Secretary receives a study submission under sub- section (a) or receives a request under sub- paragraph (A), the Secretary shall begin the required analyses, reviews, and compliance processes. (C) Additional information required The Secretary shall notify a non-Federal interest if, upon initial review of a submis- sion received under subsection (a) or a re- ceipt of a request under subparagraph (A), the Secretary requires additional informa- tion to perform the required analyses, re- views, and compliance processes and include in such notification a detailed description of the required information. (4) Notification Upon receipt of a study submission under subsection (a) or receipt of a request under paragraph (3)(A), the Secretary shall notify the Committee on Transportation and Infra- structure of the House of Representatives and the Committee on Environment and Public Works of the Senate of the submission or re- quest and a timeline for completion of the re- quired analyses, reviews, and compliance proc- esses and shall notify the non-Federal interest of such timeline. (5) Status updates Not later than 30 days after receiving a study submission under subsection (a) or a re- quest under paragraph (3)(A), and every 30 days thereafter until the Secretary submits an assessment under subsection (c) for the appli- cable feasibility study, the Secretary shall no- tify the Committee on Transportation and In- frastructure of the House of Representatives, the Committee on Environment and Public Works of the Senate, and the non-Federal in- terest of the status of the Secretary’s required analyses, reviews, and compliance processes. (c) Submission to Congress (1) Review and submission of studies to Con- gress Not later than 180 days after the completion of review of a feasibility study under sub- section (b), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transpor- tation and Infrastructure of the House of Rep- resentatives an assessment that describes— (A) the results of the Secretary’s review of the study under subsection (b), including a determination of whether the project is fea- sible; (B) any recommendations the Secretary may have concerning the plan or design of the project; and (C) any conditions the Secretary may re- quire for construction of the project. (2) Limitation The completion of the review by the Sec- retary of a feasibility study that has been sub- mitted under subsection (a)(1) may not be de- layed as a result of consideration being given to changes in policy or priority with respect to project consideration. (d) Credit (1) In general If a project for which a feasibility study has been submitted under subsection (a)(1) is au- thorized by a Federal law enacted after the date of the submission to Congress under sub- section (c), the Secretary shall credit toward the non-Federal share of the cost of construc- tion of the project or modification to the project an amount equal to the portion of the cost of developing the study that would have been the responsibility of the United States if the study had been developed by the Sec- retary. (2) Maximum amount Any credit provided to a non-Federal inter- est under this subsection may not exceed the Federal share of the cost for a feasibility study initiated by the Secretary under section 2282c(a) of this title. (e) Review and technical assistance (1) Review The Secretary may accept and expend funds provided by non-Federal interests to under- take reviews, inspections, certifications, and other activities that are the responsibility of the Secretary in carrying out this section. (2) Technical assistance At the request of a non-Federal interest, the Secretary shall provide to the non-Federal in- terest technical assistance relating to any as- pect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assist- ance. (3) Limitation Funds provided by non-Federal interests under this subsection shall not be eligible for credit under subsection (d) or reimbursement. (4) Impartial decisionmaking In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, ei- ther substantively or procedurally. (5) Savings provision The provision of technical assistance by the Secretary under paragraph (2)— Page 719 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2231 (A) shall not be considered to be an ap- proval or endorsement of the feasibility study; and (B) shall not affect the responsibilities of the Secretary under subsections (b) and (c). (f) Authorization of appropriations There is authorized to be appropriated to the Secretary $1,000,000 for each fiscal year to carry out this section. (Pub. L. 99–662, title II, § 203, Nov. 17, 1986, 100 Stat. 4098; Pub. L. 113–121, title I, § 1014(a), June 10, 2014, 128 Stat. 1219; Pub. L. 114–322, title I, § 1126, Dec. 16, 2016, 130 Stat. 1648; Pub. L. 115–270, title I, § 1152, Oct. 23, 2018, 132 Stat. 3788; Pub. L. 116–260, div. AA, title I, § 161(a), Dec. 27, 2020, 134 Stat. 2665; Pub. L. 118–272, div. A, title I, § 1109(a), Jan. 4, 2025, 138 Stat. 3007.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (b)(2)(B), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. AMENDMENTS 2025—Subsec. (a)(1)(A). Pub. L. 118–272, § 1109(a)(1)(A)(i), substituted ‘‘may undertake and sub- mit to the Secretary— ‘‘(A) a federally authorized feasibility study of a proposed water resources development project; or’’ for ‘‘may undertake a federally authorized feasibility study of a proposed water resources development project, or,’’. Subsec. (a)(1)(B). Pub. L. 118–272, § 1109(a)(1)(A)(ii), (iii), substituted ‘‘(B) upon the determination’’ for ‘‘upon the written approval’’, struck out ‘‘undertake’’ before ‘‘a feasibility’’, and substituted ‘‘or constructed by a non-Federal interest pursuant to section 2232 of this title’’ for ‘‘, and submit the study to the Sec- retary’’. Subsec. (a)(2). Pub. L. 118–272, § 1109(a)(1)(B)(i), in in- troductory provisions, struck out ‘‘, as soon as prac- ticable,’’ after ‘‘Secretary’’ and substituted ‘‘non-Fed- eral interests that’’ for ‘‘non-Federal interests to’’. Subsec. (a)(2)(A). Pub. L. 118–272, § 1109(a)(1)(B)(ii), added subpar. (A) and struck out former subpar. (A) which read as follows: ‘‘ensure that any feasibility study with respect to which the Secretary submits an assessment to Congress under subsection (c) complies with all of the requirements that would apply to a fea- sibility study undertaken by the Secretary; and’’. Subsec. (a)(2)(C), (D). Pub. L. 118–272, § 1109(a)(1)(B)(iii), (iv), added subpars. (C) and (D). Subsec. (a)(3). Pub. L. 118–272, § 1109(a)(1)(C), added par. (3). Subsec. (b)(3)(B). Pub. L. 118–272, § 1109(a)(2)(A)(i), sub- stituted ‘‘receives a study submission under subsection (a) or receives a request under subparagraph (A)’’ for ‘‘receives a request under this paragraph’’. Subsec. (b)(3)(C). Pub. L. 118–272, § 1109(a)(2)(A)(ii), added subpar. (C). Subsec. (b)(4). Pub. L. 118–272, § 1109(a)(2)(B), added par. (4) and struck out former par. (4). Prior to amend- ment, text read as follows: ‘‘Upon receipt of a request under paragraph (3), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Envi- ronment and Public Works of the Senate of the request and a timeline for completion of the required analyses, reviews, and compliance processes.’’ Subsec. (b)(5). Pub. L. 118–272, § 1109(a)(2)(C), sub- stituted ‘‘receiving a study submission under sub- section (a) or a request under paragraph (3)(A)’’ for ‘‘re- ceiving a request under paragraph (3)’’. Subsec. (d). Pub. L. 118–272, § 1109(a)(3), designated ex- isting provisions as par. (1), inserted heading, sub- stituted ‘‘of the project or modification to the project’’ for ‘‘of the project’’, and added par. (2). Subsec. (f). Pub. L. 118–272, § 1109(a)(4), added subsec. (f). 2020—Subsec. (a)(1). Pub. L. 116–260, § 161(a)(1)(A), in- serted ‘‘, or, upon the written approval of the Sec- retary that the modifications are consistent with the authorized purposes of the project, undertake a feasi- bility study on modifications to a water resources de- velopment project constructed by the Corps of Engi- neers,’’ after ‘‘water resources development project’’. Subsec. (a)(2). Pub. L. 116–260, § 161(a)(1)(B), sub- stituted ‘‘for the formulation of feasibility studies of water resources development projects undertaken by non-Federal interests to—’’ for ‘‘for feasibility studies of water resources development projects to provide suf- ficient information for the formulation of the studies.’’ and added subpars. (A) and (B). Subsec. (b). Pub. L. 116–260, § 161(a)(2), designated ex- isting provisions as par. (1), inserted heading, and added pars. (2) to (5). Subsec. (c)(1). Pub. L. 116–260, § 161(a)(3), in introduc- tory provisions, substituted ‘‘after the completion of review of a feasibility study under subsection (b)’’ for ‘‘after the date of receipt of a feasibility study of a project under subsection (a)(1)’’ and ‘‘an assessment’’ for ‘‘a report’’. 2018—Subsec. (a)(1). Pub. L. 115–270, § 1152(1), inserted ‘‘federally authorized’’ before ‘‘feasibility study’’. Subsec. (c). Pub. L. 115–270, § 1152(2), amended subsec. (c) generally. Prior to amendment, text read as follows: ‘‘Not later than 180 days after the date of receipt of a feasibility study of a project under subsection (a)(1), the Secretary shall submit to the Committee on Envi- ronment and Public Works of the Senate and the Com- mittee on Transportation and Infrastructure of the House of Representatives a report that describes— ‘‘(1) the results of the Secretary’s review of the study under subsection (b), including a determination of whether the project is feasible; ‘‘(2) any recommendations the Secretary may have concerning the plan or design of the project; and ‘‘(3) any conditions the Secretary may require for construction of the project.’’ Subsec. (e). Pub. L. 115–270, § 1152(3), amended subsec. (e) generally. Prior to amendment, text read as follows ‘‘At the request of a non-Federal interest, the Sec- retary may provide to the non-Federal interest tech- nical assistance relating to any aspect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assistance.’’. 2016—Subsec. (e). Pub. L. 114–322 added subsec. (e). 2014—Pub. L. 113–121 amended section generally. Prior to amendment, section related to studies of projects by non-Federal interests. Statutory Notes and Related Subsidiaries SHORT TITLE For short title of title II of Pub. L. 99–662, enacting this subchapter, as the Harbor Development and Navi- gation Improvement Act of 1986, see section 215 of Pub. L. 99–662, set out as a note under section 2201 of this title. GUIDANCE Pub. L. 118–272, div. A, title I, § 1109(b), Jan. 4, 2025, 138 Stat. 3009, provided that: ‘‘Not later than 18 months after the date of enactment of this Act [Jan. 4, 2025], the Secretary [of the Army] shall update any guidance as necessary to reflect the amendments made by this section [amending this section].’’ IMPLEMENTATION Pub. L. 118–272, div. A, title I, § 1109(c), Jan. 4, 2025, 138 Stat. 3009, provided that: ‘‘Any non-Federal interest Page 720 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2232 1 See References in Text note below. that has entered in a written agreement with the Sec- retary [of the Army] related to carrying out a feasi- bility study pursuant to section 203 of the Water Re- sources Development Act of 1986 (33 U.S.C. 2231) before the date of enactment of this Act [Jan. 4, 2025] may submit to the Secretary a request to amend such agree- ment to reflect the amendments made by this section [amending this section].’’ DEADLINE Pub. L. 116–260, div. AA, title I, § 161(b), Dec. 27, 2020, 134 Stat. 2667, provided that: ‘‘Not later than 90 days after the date of enactment of this Act [Dec. 27, 2020], the Secretary [of the Army] shall issue revised guide- lines under section 203 of the Water Resources Develop- ment Act of 1986 (33 U.S.C. 2231) to implement the amendments made by this section [amending this sec- tion].’’ HOLD HARMLESS Pub. L. 116–260, div. AA, title I, § 161(c), Dec. 27, 2020, 134 Stat. 2667, provided that: ‘‘(1) ONE-YEAR WINDOW.—The amendments made by this section [amending this section] shall not apply to any feasibility study submitted to the Secretary [of the Army] under section 203 of the Water Resources Devel- opment Act of 1986 (33 U.S.C. 2231) during the one-year period prior to the date of enactment of this section [Dec. 27, 2020]. ‘‘(2) 2020 PROJECTS.—The amendments made by this section shall not apply to any project authorized by section 403 of this Act [section 403 of div. AA of Pub. L. 116–260, 134 Stat. 2743, which is not classified to the Code].’’ § 2232. Construction of water resources develop- ment projects by non-Federal interests (a) Water resources development project defined In this section, the term ‘‘water resources de- velopment project’’ means a project rec- ommendation that results from— (1) a feasibility report, as such term is de- fined in section 2282d(f) 1 of this title; (2) a completed feasibility study developed under section 2231 of this title; or (3) a final feasibility study for water re- sources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Sec- retary. (b) Authority (1) In general A non-Federal interest may carry out a fed- erally authorized 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 Sec- retary may require, including any condi- tions specified under section 2231(c)(3) of this title. (2) Conditions Before carrying out a water resources devel- opment 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, except as provided in paragraph (3); and (B) ensure that a final environmental im- pact statement or environmental assess- ment, as appropriate, for the project or sepa- rable element has been filed. (3) Permit exception (A) In general For a project described in subsection (a)(1) or subsection (a)(3), or a separable element thereof, with respect to which a written agreement described in subparagraph (B) has been entered into, a non-Federal interest that carries out a project under this section shall not be required to obtain any Federal permits or approvals that would not be re- quired if the Secretary carried out the project or separable element unless signifi- cant new circumstances or information rel- evant to environmental concerns or compli- ance have arisen since development of the project recommendation. (B) Written agreement For purposes of this paragraph, a written agreement shall provide that the non-Fed- eral interest shall comply with the same legal and technical requirements that would apply if the project or separable element were carried out by the Secretary, including all mitigation required to offset environ- mental impacts of the project or separable element as determined by the Secretary. (C) Certifications Notwithstanding subparagraph (A), if a non-Federal interest carrying out a project under this section would, in the absence of a written agreement entered into under this paragraph, be required to obtain a certifi- cation from a State under Federal law to carry out the project, such certification shall still be required if a written agreement is entered into with respect to the project under this paragraph. (4) Data sharing (A) In general If a non-Federal interest for a water re- sources development project begins to carry out that water resources development project under this section, the non-Federal interest may request that the Secretary transfer to the non-Federal interest all rel- evant data and documentation under the control of the Secretary with respect to that water resources development project. (B) Deadline Except as provided in subparagraph (C), the Secretary shall transfer the data and documentation requested by a non-Federal interest under subparagraph (A) not later than the date that is 90 days after the date on which the non-Federal interest so re- quests such data and documentation. (C) Limitation Nothing in this paragraph obligates the Secretary to share any data or documenta- tion that the Secretary considers to be pro- prietary information.