33 U.S.C. § 2215 — Feasibility studies; planning, engineering,

Page 711 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2215 (Pub. L. 116–260, div. AA, title I, § 152, Dec. 27, 2020, 134 Stat. 2658; Pub. L. 117–263, div. H, title LXXXI, § 8380, Dec. 23, 2022, 136 Stat. 3828.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2020, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2022—Subsec. (a). Pub. L. 117–263 substituted ‘‘a flood risk management or coastal storm risk management project in a region’’ for ‘‘flood risk management project that incidentally generates seismic safety bene- fits in regions’’. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of div. AA of Pub. L. 116–260, set out as a note under section 2201 of this title. § 2214. General credit for flood control (a) Guidelines Within one year after November 17, 1986, the Secretary shall issue guidelines to carry out this section, consistent with the principles and guidelines on project formulation. The guide- lines shall include criteria for determining whether work carried out by non-Federal inter- ests is compatible with a project for flood con- trol and procedures for making such determina- tions. The guidelines under this section shall be promulgated after notice in the Federal Register and opportunity for comment. (b) Analysis of costs and benefits The guidelines established under subsection (a) shall provide for the Secretary to consider, in analyzing the costs and benefits of a proposed project for flood control, the costs and benefits produced by any flood control work carried out by non-Federal interests that the Secretary de- termines to be compatible with the project. For purposes of the preceding sentence the Sec- retary may consider only work carried out after the date which is 5 years before the first obliga- tion of funds for the reconnaissance study for such project. In no case may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, un- less otherwise provided in this Act. (c) Crediting of non-Federal share The guidelines established under subsection (a) shall provide for crediting the cost of work carried out by the non-Federal interests against the non-Federal share of the cost of an author- ized project for flood control as follows: (1) Work which is carried out after the end of the reconnaissance study and before the sub- mission to Congress of the final report of the Chief of Engineers on the project and which is determined by the Secretary to be compatible with the project shall be included as part of the project and shall be recommended by the Secretary in the final report for credit against the non-Federal share of the cost of the project. (2) Work which is carried out after submis- sion of the final report of the Chief of Engi- neers to Congress and which is determined by the Secretary to be compatible with the project shall be considered as part of the project and shall be credited by the Secretary against the non-Federal share of the cost of the project in accordance with the guidelines promulgated pursuant to subsection (a). In no event may work which was carried out more than 5 years before November 17, 1986, be considered under this subsection, unless other- wise provided in this Act. (d) Procedure for work done before November 17, 1986 The Secretary shall consider, under sub- sections (b) and (c), work carried out before No- vember 17, 1986, by non-Federal interests on a project for flood control, if the non-Federal in- terests apply to the Secretary for consideration of such work not later than March 31, 1987. The Secretary shall make determinations under sub- sections (b) and (c) with respect to such work not later than 6 months after guidelines are issued under subsection (a). (e) Procedure for work done after November 17, 1986 The Secretary shall consider work carried out after November 17, 1986, by non-Federal interests on a project for flood control under subsections (b) and (c) in accordance with the guidelines issued under subsection (a). The guidelines shall require prior approval by the Secretary of any flood control work carried out after November 17, 1986, in order to be considered under this sec- tion, taking into account the economic and en- vironmental feasibility of the project. (f) Limitation not applicable Any flood control work included as part of the non-Federal share of the cost of a project under this section shall not be subject to the limita- tion contained in the last sentence of section 1962d–5a(a) of title 42. (g) Cash contribution not affected Nothing in this section affects the require- ment of section 2213(a)(1)(A) of this title. (Pub. L. 99–662, title I, § 104, Nov. 17, 1986, 100 Stat. 4087.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsecs. (b) and (c), 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. § 2215. Feasibility studies; planning, engineering, and design (a) Feasibility studies (1) Cost sharing (A) In general The Secretary shall not initiate any feasi- bility study for a water resources project after November 17, 1986, until appropriate non-Federal interests agree, by contract, to Page 712 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2215 contribute 50 percent of the cost of the study. (B) Payment of cost share during period of study During the period of the study, the non- Federal share of the cost of the study pay- able under subparagraph (A) shall be 50 per- cent of the sum of— (i) the cost estimate for the study as contained in the feasibility cost-sharing agreement; and (ii) any excess of the cost of the study over the cost estimate if the excess results from— (I) a change in Federal law; or (II) a change in the scope of the study requested by the non-Federal interests. (C) Payment of cost share on authorization of project or termination of study (i) Project timely authorized Except as otherwise agreed to by the Secretary and the non-Federal interests and subject to clause (ii), the non-Federal share of any excess of the cost of the study over the cost estimate (excluding any ex- cess cost described in subparagraph (B)(ii)) shall be payable on the date on which the Secretary and the non-Federal interests enter into an agreement pursuant to sec- tion 2211(e) or 2213(j) of this title with re- spect to the project. (ii) Project not timely authorized If the project that is the subject of the study is not authorized by the date that is 5 years after the completion of the final report of the Chief of Engineers concerning the study or the date that is 2 years after the termination of the study, the non-Fed- eral share of any excess of the cost of the study over the cost estimate (excluding any excess cost described in subparagraph (B)(ii)) shall be payable to the United States on that date. (D) Amendment of cost estimate The cost estimate referred to in subpara- graph (B)(i) may be amended only by agree- ment of the Secretary and the non-Federal interests. (E) In-kind contributions The non-Federal share required under this paragraph may be satisfied by the provision of services, materials, supplies, or other in- kind services necessary to prepare the feasi- bility report. (2) Applicability This subsection shall not apply to any water resources study primarily designed for the purposes of navigational improvements in the nature of dams, locks, and channels on the Na- tion’s system of inland waterways. (3) Detailed project reports The requirements of this subsection that apply to a feasibility study also shall apply to a study that results in a detailed project re- port, except that— (A) the first $100,000 of the costs of a study that results in a detailed project report shall be a Federal expense; and (B) paragraph (1)(C)(ii) shall not apply to such a study. (b) Planning and engineering The Secretary shall not initiate any planning or engineering for a water resources project until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost of the planning and engineering during the pe- riod of the planning and engineering. Costs of planning and engineering of projects for which non-Federal interests contributed 50 percent of the cost of the feasibility study shall be treated as costs of construction. (c) Design Costs of design of a water resources project shall be shared in the same percentage as the purposes of such project. (d) Definitions In this section, the following definitions apply: (1) Detailed project report The term ‘‘detailed project report’’ means a report for a project not specifically authorized by Congress in law or otherwise that deter- mines the feasibility of the project with a level of detail appropriate to the scope and complexity of the recommended solution and sufficient to proceed directly to the prepara- tion of contract plans and specifications. The term includes any associated environmental impact statement and mitigation plan. For a project for which the Federal cost does not ex- ceed $1,000,000, the term includes a planning and design analysis document. (2) Feasibility study The term ‘‘feasibility study’’ means a study that results in a feasibility report under sec- tion 2282 of this title, and any associated envi- ronmental impact statement and mitigation plan, prepared by the Corps of Engineers for a water resources project. The term includes a study that results in a project implementation report prepared under title VI of the Water Resources Development Act of 2000 (114 Stat. 2680–2694), a general reevaluation report, and a limited reevaluation report. (Pub. L. 99–662, title I, § 105, Nov. 17, 1986, 100 Stat. 4088; Pub. L. 101–640, title III, § 301, Nov. 28, 1990, 104 Stat. 4633; Pub. L. 104–303, title II, § 203(a), Oct. 12, 1996, 110 Stat. 3677; Pub. L. 106–541, title II, § 225, Dec. 11, 2000, 114 Stat. 2598; Pub. L. 110–114, title II, § 2043(a), Nov. 8, 2007, 121 Stat. 1101.) Editorial Notes REFERENCES IN TEXT The Water Resources Development Act of 2000, re- ferred to in subsec. (d)(2), is Pub. L. 106–541, Dec. 11, 2000, 114 Stat. 2572. Title VI of the Act is not classified to the Code. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 2201 of this title and Tables. AMENDMENTS 2007—Subsec. (a)(3). Pub. L. 110–114, § 2043(a)(1), added par. (3). Subsec. (b). Pub. L. 110–114, § 2043(a)(2), struck out ‘‘authorized by this Act’’ before ‘‘for a water resources project’’. Page 713 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2220 Subsec. (d). Pub. L. 110–114, § 2043(a)(3), added subsec. (d). 2000—Subsec. (a)(1)(E). Pub. L. 106–541 substituted ‘‘The’’ for ‘‘Not more than 1⁄2 of the’’. 1996—Subsec. (a)(1). Pub. L. 104–303, § 203(a)(1), in- serted heading and amended text of par. (1) generally. Prior to amendment text read as follows: ‘‘The Sec- retary shall not initiate any feasibility study for a water resources project after November 17, 1986, until appropriate non-Federal interests agree, by contract, to contribute 50 percent of the cost for such study dur- ing the period of such study. Not more than one-half of such non-Federal contribution may be made by the pro- vision of services, materials, supplies, or other in-kind services necessary to prepare the feasibility report.’’ Subsec. (a)(2). Pub. L. 104–303, § 203(a)(2), inserted heading. 1990—Subsec. (b). Pub. L. 101–640 inserted at end ‘‘Costs of planning and engineering of projects for which non-Federal interests contributed 50 percent of the cost of the feasibility study shall be treated as costs of construction.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–303, title II, § 203(b), Oct. 12, 1996, 110 Stat. 3678, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall apply notwith- standing any feasibility cost-sharing agreement en- tered into by the Secretary and the non-Federal inter- ests. On request of the non-Federal interest, the Sec- retary shall amend any feasibility cost-sharing agree- ments in effect on the date of the enactment of this Act [Oct. 12, 1996] so as to conform the agreements with the amendments.’’ NO REQUIREMENT OF REIMBURSEMENT Pub. L. 104–303, title II, § 203(c), Oct. 12, 1996, 110 Stat. 3678, provided that: ‘‘Nothing in this section [amending this section and enacting provisions set out above] or any amendment made by this section requires the Sec- retary to reimburse the non-Federal interests for funds previously contributed for a study.’’ § 2216. Rate of interest Whenever a non-Federal interest is required or elects to repay an amount under this Act over a period of time, the amount to be repaid shall in- clude interest at a rate determined by the Sec- retary of the Treasury, taking into consider- ation the average market yields on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the reimbursement period, during the month preceding the fiscal year in which costs for the construction of the project are first incurred (or in the case of recalculation the fiscal year in which the recalculation is made), plus a pre- mium of one-eighth of one percentage point for transaction costs; except that such rates for hy- droelectric power shall be in accordance with ex- isting law. (Pub. L. 99–662, title I, § 106, Nov. 17, 1986, 100 Stat. 4089.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources De- velopment Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables. § 2217. Limitation on applicability of certain pro- visions in reports If any provision in any report designated by this Act recommends that a State contribute in cash 5 percent of the construction costs allo- cated to non-vendible project purposes and 10 percent of the construction costs allocated to vendible project purposes, such provision shall not apply to the project recommended in such report. (Pub. L. 99–662, title I, § 107, Nov. 17, 1986, 100 Stat. 4089.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources De- velopment Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables. § 2218. General applicability of cost sharing Unless otherwise specified, the cost sharing provisions of this subchapter shall apply to all projects in this Act. The Federal share of any cost of a project authorized by this Act for which cost a Federal share is not established in this subchapter, shall be the share of such cost otherwise provided by law. (Pub. L. 99–662, title I, § 108, Nov. 17, 1986, 100 Stat. 4089.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, known as the Water Resources De- velopment Act of 1986. For complete classification of this Act to the Code, see Short Title note set out under section 2201 of this title and Tables. § 2219. Definitions For purposes of this subchapter, terms shall have the meanings given by section 2241 of this title. (Pub. L. 99–662, title I, § 109, Nov. 17, 1986, 100 Stat. 4089.) § 2220. Rivers and harbors and other waterways projects for benefit of navigation, flood con- trol, hurricane protection, beach erosion control, and other purposes (a) Congressional declaration of policy; purchase of indebtedness and loans to local interests to meet contribution requirements In the prosecution of projects for rivers and harbors and other waterways for the benefit of navigation, the control of destructive flood wa- ters, hurricane protection, beach erosion con- trol, and for other purposes, authorized to be prosecuted under the direction of the Secretary of the Army under the supervision of the Chief of Engineers in accordance with plans adopted and authorized by the Congress, it is hereby de- clared to be the policy of the Congress, that whenever such projects are located wholly or partially within an area which is eligible for fi- nancial assistance under the Public Works and