33 U.S.C. § 3905 — Projects eligible for assistance

Page 1013 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 3905 the Administrator, as applicable, an application at such time, in such manner, and containing such information as the Secretary or the Ad- ministrator may require. (b) Combined projects In the case of an eligible project described in paragraph (9) or (10) of section 3905 of this title, the Secretary or the Administrator, as applica- ble, shall require the eligible entity to submit a single application for the combined group of projects. (Pub. L. 113–121, title V, § 5024, June 10, 2014, 128 Stat. 1333; Pub. L. 114–322, title IV, § 5008(b)(2)(B), Dec. 16, 2016, 130 Stat. 1897.) Editorial Notes AMENDMENTS 2016—Subsec. (b). Pub. L. 114–322 substituted ‘‘para- graph (9) or (10)’’ for ‘‘paragraph (8) or (9)’’. 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. § 3904. Eligible entities The following entities are eligible to receive assistance under this chapter: (1) A corporation. (2) A partnership. (3) A joint venture. (4) A trust. (5) A Federal, State, or local governmental entity, agency, or instrumentality. (6) A tribal government or consortium of tribal governments. (7) A State infrastructure financing author- ity. (Pub. L. 113–121, title V, § 5025, June 10, 2014, 128 Stat. 1334.) § 3905. Projects eligible for assistance The following projects may be carried out with amounts made available under this chap- ter: (1) Any project for flood damage reduction, hurricane and storm damage reduction, envi- ronmental restoration, coastal or inland har- bor navigation improvement, or inland and in- tracoastal waterways navigation improvement that the Secretary determines is technically sound, economically justified, and environ- mentally acceptable, including— (A) a project to reduce flood damage; (B) a project to restore aquatic eco- systems; (C) a project to improve the inland and in- tracoastal waterways navigation system of the United States; and (D) a project to improve navigation of a coastal or inland harbor of the United States, including channel deepening and construction of associated general naviga- tion features. (2) 1 or more activities that are eligible for assistance under section 1383(c) of this title, notwithstanding the public ownership require- ment under paragraph (1) of that subsection. (3) 1 or more activities described in section 300j–12(a)(2) of title 42. (4) A project for enhanced energy efficiency in the operation of a public water system or a publicly owned treatment works. (5) A project for repair, rehabilitation, or re- placement of a treatment works, community water system, or aging water distribution or waste collection facility (including a facility that serves a population or community of an Indian reservation). (6) A brackish or sea water desalination project, including chloride control, a managed aquifer recharge project, a water recycling project, or a project to provide alternative water supplies to reduce aquifer depletion. (7) A project to prevent, reduce, or mitigate the effects of drought, including projects that enhance the resilience of drought-stricken wa- tersheds. (8) Acquisition of real property or an inter- est in real property— (A) if the acquisition is integral to a project described in paragraphs (1) through (6); or (B) pursuant to an existing plan that, in the judgment of the Administrator or the Secretary, as applicable, would mitigate the environmental impacts of water resources infrastructure projects otherwise eligible for assistance under this section. (9) A combination of projects, each of which is eligible under paragraph (2) or (3), for which a State infrastructure financing authority submits to the Administrator a single applica- tion. (10) A combination of projects secured by a common security pledge, each of which is eli- gible under paragraph (1), (2), (3), (4), (5), (6), (7), or (8), for which an eligible entity, or a combination of eligible entities, submits a sin- gle application. (Pub. L. 113–121, title V, § 5026, June 10, 2014, 128 Stat. 1334; Pub. L. 114–322, title IV, § 5008(b)(1), Dec. 16, 2016, 130 Stat. 1896.) Editorial Notes AMENDMENTS 2016—Par. (6). Pub. L. 114–322, § 5008(b)(1)(A), sub- stituted ‘‘desalination project, including chloride con- trol’’ for ‘‘desalination project’’ and ‘‘a water recycling project, or a project to provide alternative water sup- plies to reduce aquifer depletion’’ for ‘‘or a water recy- cling project’’. Pars. (7) to (9). Pub. L. 114–322, § 5008(b)(1)(B), (C), added par. (7) and redesignated former pars. (7) and (8) as (8) and (9), respectively. Former par. (9) redesignated (10). Par. (10). Pub. L. 114–322, § 5008(b)(1)(B), (D), redesig- nated par. (9) as (10) and substituted ‘‘(7), or (8)’’ for ‘‘or (7)’’. 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. Page 1014 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 3906 § 3906. Activities eligible for assistance For purposes of this chapter, an eligible activ- ity with respect to an eligible project includes the cost of— (1) development-phase activities, including planning, feasibility analysis (including any related analysis necessary to carry out an eli- gible project), revenue forecasting, environ- mental review, permitting, preliminary engi- neering and design work, and other preconstruction activities; (2) construction, reconstruction, rehabilita- tion, and replacement activities; (3) the acquisition of real property or an in- terest in real property (including water rights, land relating to the project, and improve- ments to land), environmental mitigation (in- cluding acquisitions pursuant to section 3905(8) of this title), construction contin- gencies, and acquisition of equipment; and (4) capitalized interest necessary to meet market requirements, reasonably required re- serve funds, capital issuance expenses, and other carrying costs during construction. (Pub. L. 113–121, title V, § 5027, June 10, 2014, 128 Stat. 1335; Pub. L. 114–322, title IV, § 5008(b)(2)(C), Dec. 16, 2016, 130 Stat. 1897.) Editorial Notes AMENDMENTS 2016—Par. (3). Pub. L. 114–322 substituted ‘‘section 3905(8)’’ for ‘‘section 3905(7)’’. § 3907. Determination of eligibility and project selection (a) Eligibility requirements To be eligible to receive financial assistance under this chapter, a project shall meet the fol- lowing criteria, as determined by the Secretary or Administrator, as applicable: (1) Creditworthiness (A) In general The project and obligor shall be credit- worthy, which shall be determined by the Secretary or the Administrator, as applica- ble. (B) Considerations In determining the creditworthiness of a project and obligor, the Secretary or the Ad- ministrator, as applicable, shall take into consideration relevant factors, including— (i) the terms, conditions, financial struc- ture, and security features of the proposed financing; (ii) the dedicated revenue sources that will secure or fund the project obligations; (iii) the financial assumptions upon which the project is based; and (iv) the financial soundness and credit history of the obligor. (C) Security features The Secretary or the Administrator, as ap- plicable, shall ensure that any financing for the project has appropriate security fea- tures, such as a rate covenant, supporting the project obligations to ensure repayment. (D) Rating opinion letters (i) Preliminary rating opinion letter The Secretary or the Administrator, as applicable, shall require each project ap- plicant to provide, at the time of applica- tion, a preliminary rating opinion letter from at least 1 rating agency indicating that the senior obligations of the project (which may be the Federal credit instru- ment) have the potential to achieve an in- vestment-grade rating. (ii) Final rating opinion letters The Secretary or the Administrator, as applicable, shall require each project ap- plicant to provide, prior to final accept- ance and financing of the project, a final rating opinion letter from at least 1 rating agency indicating that the senior obliga- tions of the project have an investment- grade rating. (E) Special rule for certain combined projects The Administrator shall develop a credit evaluation process for a Federal credit in- strument provided to— (i) a State infrastructure financing au- thority for a project under section 3905(9) of this title, which may include requiring the provision of a final rating opinion let- ter from at least one rating agency; or (ii) an entity for a project under section 3905(10) of this title, which may include re- quiring the provision of a final rating opinion letter from at least two rating agencies. (2) Eligible project costs (A) In general Subject to subparagraph (B), the eligible project costs of a project shall be reasonably anticipated to be not less than $20,000,000. (B) Small community water infrastructure projects For a project described in paragraph (2) or (3) of section 3905 of this title that serves a community of not more than 25,000 individ- uals, the eligible project costs of a project shall be reasonably anticipated to be not less than $5,000,000. (3) Dedicated revenue sources The Federal credit instrument for the project shall be repayable, in whole or in part, from dedicated revenue sources that also se- cure the project obligations. (4) Public sponsorship of private entities (A) In general If an eligible project is carried out by an entity that is not a State or local govern- ment or an agency or instrumentality of a State or local government or a tribal gov- ernment or consortium of tribal govern- ments, the project shall be publicly spon- sored. (B) Public sponsorship For purposes of this chapter, a project shall be considered to be publicly sponsored