33 U.S.C. § 2223 — Transfer of excess credit

Page 715 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2223 § 2223. Transfer of excess credit (a) Application of credit (1) In general Subject to subsection (b), the Secretary may apply credit for in-kind contributions provided by a non-Federal interest that are in excess of the required non-Federal cost share for a water resources development study or project toward the required non-Federal cost share for a different water resources development study or project. (2) Application prior to completion of project On request of a non-Federal interest, the credit described in paragraph (1) may be ap- plied prior to completion of a study or project, if the credit amount is verified by the Sec- retary. (3) Studies and projects with multiple non-Fed- eral interests A credit described in paragraph (1) for a study or project with multiple non-Federal in- terests may be applied to the required non- Federal cost share for a study or project of any such non-Federal interest, if each such non-Federal interest agrees in writing to such application. (b) Restrictions (1) In general Except for subsection (a)(4)(D)(i) of that sec- tion, the requirements of section 1962d–5b of title 42 (as amended by section 1018(a)) shall apply to any credit under this section. (2) Conditions Credit in excess of the non-Federal share for a study or project may be approved under this section only if— (A) the non-Federal interest submits a comprehensive plan to the Secretary that identifies— (i) the studies and projects for which the non-Federal interest intends to provide in- kind contributions for credit that are in excess of the non-Federal cost share for the study or project; and (ii) the authorized studies and projects to which that excess credit would be ap- plied; (B) the Secretary approves the comprehen- sive plan; and (C) the total amount of credit does not ex- ceed the total non-Federal share for the studies and projects in the approved com- prehensive plan. (3) Conditional approval of excess credit Notwithstanding paragraph (2)(A)(ii), the Secretary may approve credit in excess of the non-Federal share for a study or project prior to the identification of each authorized study or project to which the excess credit will be applied, subject to the condition that the non- Federal interest agrees to submit for approval by the Secretary an amendment to the com- prehensive plan prepared under paragraph (2) that identifies each authorized study or project in advance of execution of the feasi- bility cost-sharing agreement or project part- nership agreement for that authorized study or project. (c) Additional criteria In evaluating a request to apply credit in ex- cess of the non-Federal share for a study or project toward a different study or project, the Secretary shall consider whether applying that credit will— (1) help to expedite the completion of a project or group of projects; (2) reduce costs to the Federal Government; and (3) aid the completion of a project that pro- vides significant flood risk reduction or envi- ronmental benefits. (d) Termination of authority The authority provided in this section shall terminate on December 31, 2030. (e) Report (1) Deadlines (A) In general Not later than 2 years after June 10, 2014, and once every 2 years thereafter, the Sec- retary shall submit to the Committee on En- vironment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representa- tives and make publicly available an interim report on the use of the authority under this section. (B) Final report Not later than December 31, 2030, the Sec- retary shall submit to the Committee on En- vironment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representa- tives and make publicly available a final re- port on the use of the authority under this section. (2) Inclusions The reports described in paragraph (1) shall include— (A) a description of the use of the author- ity under this section during the reporting period; (B) an assessment of the impact of the au- thority under this section on the time re- quired to complete projects; and (C) an assessment of the impact of the au- thority under this section on other water re- sources projects. (Pub. L. 113–121, title I, § 1020, June 10, 2014, 128 Stat. 1227; Pub. L. 114–322, title I, § 1166, Dec. 16, 2016, 130 Stat. 1670; Pub. L. 117–263, div. H, title LXXXI, § 8383, Dec. 23, 2022, 136 Stat. 3829; Pub. L. 118–272, div. A, title III, § 1303(g), Jan. 4, 2025, 138 Stat. 3114.) Editorial Notes REFERENCES IN TEXT Section 1018(a), referred to in subsec. (b)(1), means section 1018(a) of Pub. L. 113–121. CODIFICATION Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of Page 716 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2224 1 See References in Text note below. the Water Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2025—Subsecs. (d), (e)(1)(B). Pub. L. 118–272 sub- stituted ‘‘2030’’ for ‘‘2028’’. 2022—Subsec. (a)(3). Pub. L. 117–263, § 8383(1), added par. (3). Subsec. (b)(3). Pub. L. 117–263, § 8383(2), added par. (3). Subsec. (d). Pub. L. 117–263, § 8383(3), substituted ‘‘on December 31, 2028’’ for ‘‘10 years after June 10, 2014’’. Subsec. (e)(1)(B). Pub. L. 117–263, § 8383(4), substituted ‘‘December 31, 2028’’ for ‘‘10 years after June 10, 2014’’. 2016—Subsec. (a). Pub. L. 114–322 substituted ‘‘Appli- cation of credit’’ for ‘‘In general’’ in subsec. heading, designated existing provisions as par. (1) and inserted par. (1) heading, and added par. (2). 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. § 2224. Crediting authority for federally author- ized navigation projects A non-Federal interest may carry out oper- ation and maintenance activities for an author- ized navigation project, subject to the condition that the non-Federal interest complies with all Federal laws and regulations applicable to such operation and maintenance activities, and may receive credit for the costs incurred by the non- Federal interest in carrying out such activities towards the share of construction costs of that non-Federal interest for another element of the same project or another authorized navigation project, except that in no instance may such credit exceed 20 percent of the total costs associ- ated with construction of the general navigation features of the project for which such credit may be applied pursuant to this section. (Pub. L. 113–121, title I, § 1021, June 10, 2014, 128 Stat. 1228.) 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. § 2225. Credit or reimbursement (a) Requests for credits With respect to an authorized flood damage re- duction project, or separable element thereof, that has been constructed by a non-Federal in- terest under section 701b–13 1 of this title, or an authorized coastal navigation project that has been constructed by the Corps of Engineers pur- suant to section 561 of this title before October 23, 2018, the Secretary may provide to the non- Federal interest, at the request of the non-Fed- eral interest, a credit in an amount equal to the estimated Federal share of the cost of the project or separable element, in lieu of providing to the non-Federal interest a reimbursement in that amount or reimbursement of funds of an equivalent amount, subject to the availability of appropriations. (b) Application of credits At the request of the non-Federal interest, the Secretary may apply all or a portion of such credit to the share of the cost of the non-Federal interest of carrying out other flood damage re- duction and coastal navigation projects or stud- ies. (c) Application of reimbursement At the request of the non-Federal interest, the Secretary may apply such funds, subject to the availability of appropriations, equal to the share of the cost of the non-Federal interest of car- rying out other flood damage reduction and coastal navigation projects or studies. (Pub. L. 113–121, title I, § 1022, June 10, 2014, 128 Stat. 1228; Pub. L. 114–322, title I, § 1171, Dec. 16, 2016, 130 Stat. 1671; Pub. L. 115–270, title I, § 1136(a), Oct. 23, 2018, 132 Stat. 3783.) Editorial Notes REFERENCES IN TEXT Section 701b–13 of this title, referred to in subsec. (a), was repealed by Pub. L. 113–121, title I, §1014(c)(3), June 10, 2014, 128 Stat. 1222. AMENDMENTS 2018—Pub. L. 115–270 amended section generally. Prior to amendment, section related to credit in lieu of reim- bursement. 2016—Subsec. (a). Pub. L. 114–322, § 1171(1), substituted ‘‘for which a written agreement with the Corps of Engi- neers for construction was finalized on or before De- cember 31, 2014, under section 701b–13 of this title (as it existed before the repeal made by section 1014(c)(3))’’ for ‘‘that has been constructed by a non-Federal inter- est under section 701b–13 of this title before June 10, 2014’’. Subsec. (b). Pub. L. 114–322, § 1171(2), substituted ‘‘non-Federal share of the cost of carrying out other water resources development projects or studies of the non-Federal interest’’ for ‘‘share of the cost of the non- Federal interest of carrying out other flood damage re- duction projects or studies’’. 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. § 2226. Water resources projects on Federal land (a) In general Subject to subsection (b), the Secretary may carry out an authorized water resources devel- opment project on Federal land that is under the administrative jurisdiction of another Fed- eral agency where the cost of the acquisition of such Federal land has been paid for by the non- Federal interest for the project. (b) MOU required The Secretary may carry out a project pursu- ant to subsection (a) only after the non-Federal