33 U.S.C. § 2326 — Regional sediment management

Page 815 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2326 1 See References in Text note below. fied principally to chapter 68 (§ 5121 et seq.) of Title 42, The Public Health and Welfare. For complete classi- fication of this Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables. The National Environmental Policy Act of 1969, re- ferred to in subsec. (c), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. 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. 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. § 2326. Regional sediment management (a) In general (1) Sediment use (A) Sediment from Federal water resources projects For sediment obtained through or used in the construction, operation, or maintenance of an authorized Federal water resources project, including a project authorized for flood control, the Secretary shall develop, at Federal expense, regional sediment manage- ment plans and carry out projects at loca- tions identified in plans developed under this section, or identified jointly by the non-Fed- eral interest and the Secretary, for use in the construction, repair, modification, or re- habilitation of projects, including projects for the beneficial use of dredged materials described in section 1122 of the Water Re- sources Development Act of 2016 (33 U.S.C. 2326 note),1 associated with Federal water re- sources projects for purposes listed in para- graph (3). (B) Sediment from other Federal sources and non-Federal sources For purposes of projects carried out under this section, the Secretary may include sedi- ment from other Federal sources and non- Federal sources, subject to the requirement that any sediment obtained from a non-Fed- eral source shall not be obtained at Federal expense. (2) Cooperation The Secretary shall develop plans under this subsection in cooperation with the appropriate Federal, State, regional, and local agencies. (3) Purposes for sediment use in projects The purposes of using sediment for the con- struction, repair, modification, or rehabilita- tion of Federal water resources projects are— (A) to reduce storm damage to property; (B) to protect, restore, and create aquatic and ecologically related habitats, including wetlands; and (C) to transport and place suitable sedi- ment for the purposes of improving environ- mental conditions in marsh and littoral sys- tems, stabilizing stream channels, enhanc- ing shorelines, and supporting State and local risk management adaptation strate- gies. (4) Reducing costs To reduce or avoid Federal costs, the Sec- retary shall consider the beneficial use of dredged material in a manner that contributes to the maintenance of sediment resources in the nearby coastal system. (b) Secretarial findings Subject to subsection (c), projects carried out under subsection (a) may be carried out in any case in which the Secretary finds that— (1) the environmental, economic, and social benefits of the project, both monetary and nonmonetary, justify the cost of the project; and (2) the project will not result in environ- mental degradation. (c) Determination of project costs (1) Costs of construction (A) In general Costs associated with construction of a project under this section or identified in a regional sediment management plan shall be limited solely to construction costs that are in excess of the costs necessary to carry out the dredging for construction, operation, or maintenance of an authorized Federal water resources project in the most cost-effective way, consistent with economic, engineering, and environmental criteria. (B) Cost sharing (i) In general Except as provided in clause (ii), the non-Federal share of the construction cost of a project under this section shall be de- termined as provided in subsections (a) through (d) of section 2213 of this title. (ii) Special rule Construction of a project under this sec- tion for one or more of the purposes of pro- tection, restoration, or creation of aquatic and ecologically related habitat, the cost of which does not exceed $750,000 and which is located in a disadvantaged community as determined by the Secretary, may be carried out at Federal expense. (C) Total cost The total Federal costs associated with construction of a project under this section may not exceed $15,000,000. (2) Operation, maintenance, replacement, and rehabilitation costs Operation, maintenance, replacement, and rehabilitation costs associated with a project under this section are the responsibility of the non-Federal interest. Page 816 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2326 2 So in original. Probably should be preceded by ‘‘be’’. (d) Selection of dredged material disposal meth- od for purposes related to environmental res- toration or storm damage and flood reduc- tion (1) In general At the request of the non-Federal interest for a water resources development project in- volving the disposal of dredged material, the Secretary, using funds appropriated for con- struction or operation and maintenance of the project, may select a disposal method that is not the least cost option if the Secretary de- termines that the incremental costs of the dis- posal method are reasonable in relation to— (A) the environmental benefits, including the benefits to the aquatic environment to be derived from the creation of wetlands and control of shoreline erosion; or (B) the hurricane and storm or flood risk reduction benefits, including shoreline pro- tection, protection against loss of life, and damage to improved property. (2) Federal share The Federal share of such incremental costs shall be determined in accordance with sub- section (c). (3) Special rule Disposal of dredged material under this sub- section may include a single or periodic appli- cation of sediment for beneficial use and shall not require operation and maintenance. (4) Disposal at non-Federal cost The Secretary may accept funds from a non- Federal interest to dispose of dredged material as provided under section 2213(d)(1) of this title. (5) Selection of dredged material disposal method for certain purposes Activities carried out under this sub- section— (A) shall be carried out using amounts ap- propriated for construction or operation and maintenance of the project involving the disposal of the dredged material; and (B) shall not carried 2 out using amounts made available under subsection (g). (e) State and regional plans The Secretary may— (1) cooperate with any State or group of States in the preparation of a comprehensive State or regional sediment management plan within the boundaries of the State or among States; (2) encourage State participation in the im- plementation of the plan; and (3) submit to Congress reports and rec- ommendations with respect to appropriate Federal participation in carrying out the plan. (f) Priority areas In carrying out this section, the Secretary shall give priority to a regional sediment man- agement project in the vicinity of each of the following: (1) Little Rock Slackwater Harbor, Arkan- sas. (2) Fletcher Cove, California. (3) Egmont Key, Florida. (4) Calcasieu Ship Channel, Louisiana. (5) Delaware River Estuary, New Jersey and Pennsylvania. (6) Fire Island Inlet, Suffolk County, New York. (7) Smith Point Park Pavilion and the TWA Flight 800 Memorial, Brookhaven, New York. (8) Morehead City, North Carolina. (9) Toledo Harbor, Lucas County, Ohio. (10) Galveston Bay, Texas. (11) Benson Beach, Washington. (12) Osceola County, Florida. (g) Authorization of appropriations There is authorized to be appropriated to carry out this section $62,500,000 per fiscal year, of which not more than $5,000,000 per fiscal year may be used for the development of regional sediment management plans authorized by sub- section (e) and of which not more than $3,000,000 per fiscal year may be used for construction of projects to which subsection (c)(1)(B)(ii) applies. Such funds shall remain available until ex- pended. (Pub. L. 102–580, title II, § 204, Oct. 31, 1992, 106 Stat. 4826; Pub. L. 104–303, title II, § 207, Oct. 12, 1996, 110 Stat. 3680; Pub. L. 106–53, title II, § 209, Aug. 17, 1999, 113 Stat. 287; Pub. L. 110–114, title II, § 2037(a), Nov. 8, 2007, 121 Stat. 1094; Pub. L. 113–121, title I, §§ 1030(d)(1), 1038, June 10, 2014, 128 Stat. 1232, 1236; Pub. L. 114–322, title I, § 1122(i), Dec. 16, 2016, 130 Stat. 1647; Pub. L. 115–270, title I, §§ 1150, 1157(d), Oct. 23, 2018, 132 Stat. 3787, 3794; Pub. L. 116–260, div. AA, title I, § 125(a)(2)(C), Dec. 27, 2020, 134 Stat. 2637; Pub. L. 118–272, div. A, title I, §§ 1107(i), 1130(b), Jan. 4, 2025, 138 Stat. 3005, 3019.) Editorial Notes REFERENCES IN TEXT Section 1122 of the Water Resources Development Act of 2016, referred to in subsec. (a)(1)(A), is section 1122 of Pub. L. 114–322, title I, § 1122, Dec. 16, 2016, 130 Stat. 1645. Subsecs. (a) to (h) of section 1122, which was formerly set out as a note below, was transferred to section 2326i of this title. Subsec. (i) of section 1122 amended this section. Subsec. (j) of section 1122 amended section 1962d–5f of Title 42, The Public Health and Welfare. CODIFICATION Section was enacted as part of the Water Resources Development Act of 1992, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2025—Subsec. (a)(1). Pub. L. 118–272, § 1130(b)(1), sub- stituted ‘‘rehabilitation of projects, including projects for the beneficial use of dredged materials described in section 1122 of the Water Resources Development Act of 2016 (33 U.S.C. 2326 note),’’ for ‘‘rehabilitation of projects’’. Subsec. (c)(1)(C). Pub. L. 118–272, § 1107(i), substituted ‘‘$15,000,000’’ for ‘‘$10,000,000’’. Subsec. (f)(12). Pub. L. 118–272, § 1130(b)(2), added par. (12). 2020—Subsec. (d)(1). Pub. L. 116–260, § 125(a)(2)(C)(i)(I), in introductory provisions, substituted ‘‘At the request of the non-Federal interest for a water resources devel- opment project involving the disposal of dredged mate- rial, the Secretary, using funds appropriated for con- Page 817 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2326 struction or operation and maintenance of the project, may select’’ for ‘‘In developing and carrying out a Fed- eral water resources project involving the disposal of dredged material, the Secretary may select, with the consent of the non-Federal interest,’’. Subsec. (d)(1)(B). Pub. L. 116–260, § 125(a)(2)(C)(i)(II), substituted ‘‘hurricane and storm or flood risk reduc- tion benefits’’ for ‘‘flood and storm damage and flood reduction benefits’’. Subsec. (d)(5). Pub. L. 116–260, § 125(a)(2)(C)(ii), added par. (5). 2018—Subsec. (a)(1)(A). Pub. L. 115–270, § 1150, inserted ‘‘including a project authorized for flood control,’’ after ‘‘an authorized Federal water resources project,’’. Subsec. (g). Pub. L. 115–270, § 1157(d), substituted ‘‘$62,500,000’’ for ‘‘$50,000,000’’. 2016—Subsec. (a)(1). Pub. L. 114–322, § 1122(i)(1), des- ignated existing provisions as subpar. (A), inserted heading, and added subpar. (B). Subsec. (d)(3), (4). Pub. L. 114–322, § 1122(i)(2), added pars. (3) and (4). 2014—Subsec. (a)(1). Pub. L. 113–121, § 1038(1)(A), in- serted ‘‘or used in’’ after ‘‘obtained through’’. Subsec. (a)(3)(C). Pub. L. 113–121, § 1038(1)(B), inserted ‘‘for the purposes of improving environmental condi- tions in marsh and littoral systems, stabilizing stream channels, enhancing shorelines, and supporting State and local risk management adaptation strategies’’ be- fore period at end. Subsec. (a)(4). Pub. L. 113–121, § 1038(1)(C), added par. (4). Subsec. (c)(1)(C). Pub. L. 113–121, § 1030(d)(1)(A), sub- stituted ‘‘$10,000,000’’ for ‘‘$5,000,000’’. Subsec. (d). Pub. L. 113–121, § 1038(2)(A), substituted ‘‘Selection of dredged material disposal method for pur- poses related to environmental restoration or storm damage and flood reduction’’ for ‘‘Selection of dredged material disposal method for environmental purposes’’ in heading. Subsec. (d)(1). Pub. L. 113–121, § 1038(2)(B), substituted ‘‘in relation to—’’ for ‘‘in relation to the environmental benefits, including the benefits to the aquatic environ- ment to be derived from the creation of wetlands and control of shoreline erosion.’’ and added subpars. (A) and (B). Subsec. (e)(1). Pub. L. 113–121, § 1038(3), added par. (1) and struck out former par. (1) which read as follows: ‘‘cooperate with any State in the preparation of a com- prehensive State or regional sediment management plan within the boundaries of the State;’’. Subsec. (g). Pub. L. 113–121, § 1030(d)(1)(B), substituted ‘‘$50,000,000’’ for ‘‘$30,000,000’’. 2007—Pub. L. 110–114 amended section generally. Prior to amendment, section related to beneficial uses of dredged material. 1999—Subsec. (c). Pub. L. 106–53, § 209(1), in introduc- tory provisions, substituted ‘‘binding agreement with the Secretary’’ for ‘‘cooperative agreement in accord- ance with the requirements of section 1962d–5b of title 42’’. Subsec. (g). Pub. L. 106–53, § 209(2), added subsec. (g). 1996—Subsecs. (e), (f). Pub. L. 104–303 added subsec. (e) and redesignated former subsec. (e) as (f). Statutory Notes and Related Subsidiaries APPLICABILITY Pub. L. 110–114, title II, § 2037(c), as added by Pub. L. 113–121, title I, § 1030(d)(2), June 10, 2014, 128 Stat. 1232, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall not apply to any project authorized under this Act [see Tables for classification] if a report of the Chief of Engineers for the project was completed prior to the date of enactment of this Act [Nov. 8, 2007].’’ MAXIMIZATION OF BENEFICIAL USE IN DREDGED MATERIAL MANAGEMENT PLANS Pub. L. 118–272, div. A, title I, § 1130(d), Jan. 4, 2025, 138 Stat. 3019, provided that: ‘‘Each dredged material man- agement plan for a federally authorized water resources development project, and each regional sediment plan developed under section 204 of the Water Resources De- velopment Act of 1992 (33 U.S.C. 2326), including any such plan under development on the date of enactment of this Act [Jan. 4, 2025], shall— ‘‘(1) maximize the beneficial use of suitable dredged material; and ‘‘(2) to the maximum extent practicable, prioritize the use of such dredged material in water resources development projects in areas vulnerable to coastal land loss or shoreline erosion.’’ PROJECT SELECTION Pub. L. 116–260, div. AA, title I, § 125(b)(3), Dec. 27, 2020, 134 Stat. 2638, provided that: ‘‘In selecting projects for the beneficial use of dredged materials under sec- tion 1122 of the Water Resources Development Act of 2016 (33 U.S.C. 2326 note) [set out as a note below], the Secretary [of the Army] shall prioritize the selection of at least one project for the utilization of thin layer placement of dredged fine and coarse grain sediment and at least one project for recovering lost storage ca- pacity in reservoirs due to sediment accumulation au- thorized by subsection (a)(8) of such section, to the ex- tent that a non-Federal interest has submitted an ap- plication for such project purposes that otherwise meets the requirements of such section.’’ COORDINATION WITH EXISTING AUTHORITIES Pub. L. 116–260, div. AA, title I, § 125(d)(2), Dec. 27, 2020, 134 Stat. 2640, provided that: ‘‘The Secretary [of the Army] may carry out the dredge pilot program au- thorized by section 1111 of the Water Resources Devel- opment Act of 2018 (33 U.S.C. 2326 note) in coordination with Federal regional dredge demonstration programs in effect on the date of enactment of this Act [Dec. 27, 2020].’’ DREDGE PILOT PROGRAM Pub. L. 115–270, title I, § 1111, Oct. 23, 2018, 132 Stat. 3774, as amended by Pub. L. 116–260, div. AA, title I, § 125(d)(1), Dec. 27, 2020, 134 Stat. 2640, provided that: ‘‘(a) IN GENERAL.—The Secretary [of the Army] is au- thorized to carry out a pilot program to award con- tracts with a duration of up to 5 years for the operation and maintenance of— ‘‘(1) harbors and inland harbors referred to in sec- tion 210(a)(2) of the Water Resources Development Act of 1986 (33 U.S.C. 2238(a)(2)); or ‘‘(2) inland and intracoastal waterways of the United States described in section 206 of the Inland Waterways Revenue Act of 1978 (33 U.S.C. 1804). ‘‘(b) SCOPE.—In carrying out the pilot program under subsection (a), the Secretary may award a contract de- scribed in such subsection, which may address one or more harbors, inland harbors, or inland or intracoastal waterways in a geographical region, if the Secretary determines that the contract provides cost savings compared to the awarding of such work on an annual basis or on a project-by-project basis. ‘‘(c) REPORT TO CONGRESS.—Not later than 1 year after the date on which the first contract is awarded pursuant to the pilot program carried out under sub- section (a), the Secretary shall submit to Congress a re- port evaluating, with respect to the pilot program and any contracts awarded under the pilot program— ‘‘(1) cost effectiveness; ‘‘(2) reliability and performance; ‘‘(3) cost savings attributable to mobilization and demobilization of dredge equipment; and ‘‘(4) response times to address navigational impedi- ments. ‘‘(d) SUNSET.—The authority of the Secretary to enter into contracts pursuant to the pilot program car- ried out under subsection (a), shall expire on the date that is 10 years after the date of enactment of this Act [Oct. 23, 2018].’’ BENEFICIAL USE OF DREDGED SEDIMENT Pub. L. 115–270, title I, § 1148, Oct. 23, 2018, 132 Stat. 3787, provided that: Page 818 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2326a ‘‘(a) IN GENERAL.—In carrying out a project for the beneficial reuse of sediment to reduce storm damage to property under section 204 of the Water Resources De- velopment Act of 1992 (33 U.S.C. 2326) that involves only a single application of sediment, the Secretary [of the Army] may grant a temporary easement necessary to facilitate the placement of sediment, if the Secretary determines that granting a temporary easement is in the interest of the United States. ‘‘(b) LIMITATION.—If the Secretary grants a tem- porary easement under subsection (a) with respect to a project, that project shall no longer be eligible for fu- ture placement of sediment under section 204 of the Water Resources Development Act of 1992 (33 U.S.C. 2326).’’ BENEFICIAL USE OF DREDGED MATERIAL Pub. L. 114–322, title I, § 1122(a)–(h), Dec. 16, 2016, 130 Stat. 1645, 1646, as amended by Pub. L. 115–270, title I, § 1130, Oct. 23, 2018, 132 Stat. 3780; Pub. L. 116–260, div. AA, title I, § 125(b)(1), Dec. 27, 2020, 134 Stat. 2638; Pub. L. 118–272, div. A, title I, § 1130(a), Jan. 4, 2025, 138 Stat. 3018, which established a pilot program to carry out projects for various beneficial uses of dredged material and was formerly set out as a note under this section, was transferred to section 2326i of this title. ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 3 of Pub. L. 102–580, set out as a note under section 2201 of this title. § 2326a. Dredged material disposal facility part- nerships (a) Additional capacity or replacement capacity (1) Provided by Secretary (A) In general Subject to subparagraph (B), at the re- quest of a non-Federal interest with respect to a project, the Secretary may— (i) provide additional capacity at a dredged material disposal facility con- structed by the Secretary beyond the ca- pacity that would be required for project purposes; or (ii) permit the use of dredged material disposal facility capacity required for project purposes by the non-Federal inter- est if the Secretary determines that re- placement capacity can be constructed at the facility or another facility or site be- fore such capacity is needed for project purposes. (B) Agreement Before the Secretary takes an action under subparagraph (A), the non-Federal in- terest shall agree to pay— (i) all costs associated with the construc- tion of the additional capacity or replace- ment capacity in advance of construction of such capacity; and (ii) in the case of use by a non-Federal interest of dredged material disposal ca- pacity required for project purposes under subparagraph (A)(ii), any increase in the cost of operation and maintenance of the project that the Secretary determines re- sults from the use of the project capacity by the non-Federal interest in advance of each cycle of dredging. (C) Credit In the event the Secretary determines that the cost to operate or maintain the project decreases as a result of use by the non-Fed- eral interest of dredged material disposal ca- pacity required for project purposes under subparagraph (A)(ii), the Secretary, at the request of the non-Federal interest, shall credit the amount of the decrease toward any cash contribution of the non-Federal in- terest required thereafter for construction, operation, or maintenance of the project, or of another navigation project. (2) Cost recovery authority The non-Federal interest may recover the costs assigned to the additional capacity under paragraph (1)(A)(i) through fees assessed on third parties whose dredged material is de- posited at the facility and who enter into agreements with the non-Federal interest for the use of the facility. The amount of such fees may be determined by the non-Federal in- terest. (3) Special rule for designation of replacement capacity facility or site (A) In general Subject to such terms and conditions as the Secretary determines to be necessary or advisable, an agreement under paragraph (1)(B) for use permitted under paragraph (1)(A)(ii) shall reserve to the non-Federal in- terest— (i) the right to submit to the Secretary for approval at a later date an alternative to the facility or site designated in the agreement for construction of replacement capacity; and (ii) the right to construct the replace- ment capacity at the alternative facility or site at the expense of the non-Federal interest. (B) Requirement The Secretary shall not reject a site for the construction of replacement capacity under paragraph (1)(A)(ii) that is submitted by the non-Federal interest for approval by the Secretary before the date of execution of the agreement under paragraph (1)(B), or thereafter, unless the Secretary— (i) determines that the site is environ- mentally unacceptable, geographically un- acceptable, or technically unsound; and (ii) provides a written basis for the de- termination under clause (i) to the non- Federal interest. (4) Public comment The Secretary shall afford the public an op- portunity to comment on the determinations required under this subsection for a use per- mitted under paragraph (1)(A)(ii). (b) Non-Federal use of disposal facilities (1) In general (A) Non-Federal use The Secretary— (i) at the request of a non-Federal enti- ty, may permit the use of any dredged ma- terial disposal facility under the jurisdic- tion of, or managed by, the Secretary by the non-Federal entity if the Secretary de- termines that such use will not reduce the