33 U.S.C. § 2211 — Harbors

Page 701 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2211 ment of contractual agreements with such non-Federal interests. (b) Sense of Congress It is the sense of Congress that the Secretary should maximize use of nonprice tradeoff proce- dures in competitive acquisitions for carrying out emergency work in an area with respect to which the President has declared a major dis- aster under section 5170 of title 42. (Pub. L. 116–260, div. AA, title I, § 136, Dec. 27, 2020, 134 Stat. 2649.) 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. 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. SUBCHAPTER I—COST SHARING § 2211. Harbors (a) Construction (1) Payments during construction The non-Federal interests for a navigation project for a harbor or inland harbor, or any separable element thereof, on which a con- tract for physical construction has not been awarded before June 10, 2014, shall pay, during the period of construction of the project, the following costs associated with general navi- gation features: (A) 10 percent of the cost of construction of the portion of the project which has a depth not in excess of 20 feet; plus (B) 25 percent of the cost of construction of the portion of the project which has a depth in excess of 20 feet but not in excess of 55 feet; plus (C) 50 percent of the cost of construction of the portion of the project which has a depth in excess of 55 feet. (2) Additional 10 percent payment over 30 years The non-Federal interests for a project to which paragraph (1) applies shall pay an addi- tional 10 percent of the cost of the general navigation features of the project in cash over a period not to exceed 30 years, at an interest rate determined pursuant to section 2216 of this title. The value of lands, easements, rights-of-way, and relocations provided under paragraph (3) and the costs of relocations borne by the non-Federal interests under para- graph (4) shall be credited toward the payment required under this paragraph. (3) Lands, easements, and rights-of-way Except as provided under section 2283(c) of this title, the non-Federal interests for a project to which paragraph (1) applies shall provide the lands, easements, rights-of-way, and relocations (other than utility relocations under paragraph (4)) necessary for the project, including any lands, easements, rights-of-way, and relocations (other than utility relocations accomplished under paragraph (4)) that are necessary for dredged material disposal facili- ties. (4) Utility relocations The non-Federal interests for a project to which paragraph (1) applies shall perform or assure the performance of all relocations of utilities necessary to carry out the project, except that in the case of a project for a deep- draft harbor and in the case of a project con- structed by non-Federal interests under sec- tion 2232 of this title, one-half of the cost of each such relocation shall be borne by the owner of the facility being relocated and one- half of the cost of each such relocation shall be borne by the non-Federal interests. (5) Dredged material disposal facilities for project construction In this subsection, the term ‘‘general navi- gation features’’ includes constructed land- based and aquatic dredged material disposal facilities that are necessary for the disposal of dredged material required for project con- struction and for which a contract for con- struction has not been awarded on or before October 12, 1996. (b) Operation and maintenance (1) In general The Federal share of the cost of operation and maintenance of each navigation project for a harbor or inland harbor constructed by the Secretary pursuant to this Act or any other law approved after November 17, 1986, shall be 100 percent, except that in the case of a deep-draft harbor, the non-Federal interests shall be responsible for an amount equal to 50 percent of the excess of the cost of the oper- ation and maintenance of such project over the cost which the Secretary determines would be incurred for operation and mainte- nance of such project if such project had a depth of 55 feet. (2) Dredged material disposal facilities The Federal share of the cost of con- structing land-based and aquatic dredged ma- terial disposal facilities that are necessary for the disposal of dredged material required for the operation and maintenance of a project and for which a contract for construction has not been awarded on or before October 12, 1996, shall be determined in accordance with sub- section (a). The Federal share of operating and maintaining such facilities shall be deter- mined in accordance with paragraph (1). (c) Erosion or shoaling attributable to Federal navigation works Costs of constructing projects or measures for the prevention or mitigation of erosion or shoaling damages attributable to Federal navi- gation works shall be shared in the same propor- tion as the cost sharing provisions applicable to the project causing such erosion or shoaling. The non-Federal interests for the project caus- Page 702 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2211 ing the erosion or shoaling shall agree to oper- ate and maintain such measures. (d) Non-Federal payments during construction The amount of any non-Federal share of the cost of any navigation project for a harbor or in- land harbor shall be paid to the Secretary. Amounts required to be paid during construc- tion shall be paid on an annual basis during the period of construction, beginning not later than one year after construction is initiated. (e) Agreement Before initiation of construction of a project to which this section applies, the Secretary and the non-Federal interests shall enter into a co- operative agreement according to the provisions of section 1962d–5b of title 42. The non-Federal interests shall agree to— (1) provide to the Federal Government lands, easements, and rights-of-way, including those necessary for dredged material disposal facili- ties, and perform the necessary relocations re- quired for construction, operation, and main- tenance of such project; (2) hold and save the United States free from damages due to the construction or operation and maintenance of the project, except for damages due to the fault or negligence of the United States or its contractors; (3) provide to the Federal Government the non-Federal share of all other costs of con- struction of such project; and (4) in the case of a deep-draft harbor, be re- sponsible for the non-Federal share of oper- ation and maintenance required by subsection (b) of this section. (f) Consideration of funding requirements and equitable apportionment The Secretary shall ensure, to the extent prac- ticable, that— (1) funding requirements for operation and maintenance dredging of commercial naviga- tion harbors are considered before Federal funds are obligated for payment of the Federal share of costs associated with the construction of dredged material disposal facilities in ac- cordance with subsections (a) and (b); (2) funds expended for such construction are apportioned equitably in accordance with re- gional needs; and (3) use of a dredged material disposal facility designed, constructed, managed, or operated by a private entity is not precluded if, con- sistent with economic and environmental con- siderations, the facility is the least-cost alter- native. (Pub. L. 99–662, title I, § 101, Nov. 17, 1986, 100 Stat. 4082; Pub. L. 100–676, § 13(a), Nov. 17, 1988, 102 Stat. 4025; Pub. L. 102–580, title III, § 333(b)(1), Oct. 31, 1992, 106 Stat. 4852; Pub. L. 104–303, title II, § 201(a)–(d), Oct. 12, 1996, 110 Stat. 3671, 3672; Pub. L. 113–121, title II, § 2102(b), June 10, 2014, 128 Stat. 1278; Pub. L. 114–322, title I, § 1111, Dec. 16, 2016, 130 Stat. 1636; Pub. L. 118–272, div. A, title I, § 1117, Jan. 4, 2025, 138 Stat. 3012.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (b)(1), is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, as amended, known as the Water Resources Development 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. AMENDMENTS 2025—Subsec. (a)(1)(B), (C). Pub. L. 118–272, § 1117(a), substituted ‘‘55 feet’’ for ‘‘50 feet’’. Subsec. (b)(1). Pub. L. 118–272, § 1117(b), substituted ‘‘55 feet’’ for ‘‘50 feet’’. 2016—Subsec. (a)(1). Pub. L. 114–322, § 1111(1), sub- stituted ‘‘June 10, 2014,’’ for ‘‘November 17, 1986,’’ in in- troductory provisions. Subsec. (a)(1)(B). Pub. L. 114–322, § 1111(2), substituted ‘‘50 feet’’ for ‘‘45 feet’’. Subsec. (a)(1)(C). Pub. L. 114–322, § 1111(3), substituted ‘‘50 feet’’ for ‘‘45 feet’’. 2014—Subsec. (b)(1). Pub. L. 113–121 substituted ‘‘50 feet’’ for ‘‘45 feet’’. 1996—Subsec. (a)(2). Pub. L. 104–303, § 201(a)(1), in- serted last sentence and struck out former last sen- tence which read as follows: ‘‘The value of lands, ease- ments, rights-of-way, relocations, and dredged material disposal areas provided under paragraph (3) and the costs of relocations borne by the non-Federal interests under paragraph (4) shall be credited toward the pay- ment required under this paragraph.’’ Subsec. (a)(3). Pub. L. 104–303, § 201(a)(2), inserted ‘‘and’’ after ‘‘rights-of-way,’’, struck out ‘‘, and dredged material disposal areas’’ after ‘‘relocations under para- graph (4))’’, and inserted before period at end ‘‘, including any lands, easements, rights-of-way, and relocations (other than utility relocations accom- plished under paragraph (4)) that are necessary for dredged material disposal facilities’’. Subsec. (a)(5). Pub. L. 104–303, § 201(a)(3), added par. (5). Subsec. (b). Pub. L. 104–303, § 201(b), designated exist- ing provisions as par. (1), inserted heading, realigned margins, and substituted ‘‘by the Secretary pursuant to this Act or any other law approved after November 17, 1986’’ for ‘‘pursuant to this Act’’, and added par. (2). Subsec. (e)(1). Pub. L. 104–303, § 201(c), substituted ‘‘in- cluding those necessary for dredged material disposal facilities,’’ for ‘‘and to provide dredged material dis- posal areas’’. Subsec. (f). Pub. L. 104–303, § 201(d), added subsec. (f). 1992—Subsec. (a)(3). Pub. L. 102–580 substituted ‘‘Ex- cept as provided under section 906(c), the non-Federal’’ for ‘‘The non-Federal’’. 1988—Subsec. (a)(2). Pub. L. 100–676 added par. (2) and struck out former par. (2) which read as follows: ‘‘The non-Federal interests for a project to which paragraph (1) applies shall pay an additional 10 percent of the cost of the general navigation features of the project in cash over a period not to exceed 30 years, at an interest rate determined pursuant to section 2216 of this title. The value of lands, easements, rights-of-way, relocations, and dredged material disposal areas provided under paragraph (3) shall be credited toward the payment re- quired under this paragraph.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–676, § 13(b), Nov. 17, 1988, 102 Stat. 4026, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect on November 17, 1986.’’ DEEP DRAFT HARBOR COST SHARING Pub. L. 106–53, title IV, § 401, Aug. 17, 1999, 113 Stat. 322, provided that: ‘‘(a) IN GENERAL.—The Secretary shall undertake a study of non-Federal cost-sharing requirements for the construction and operation and maintenance of deep draft harbor projects to determine whether— ‘‘(1) cost sharing adversely affects United States port development or domestic and international trade; and Page 703 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2212 ‘‘(2) any revision of the cost-sharing requirements would benefit United States domestic and inter- national trade. ‘‘(b) RECOMMENDATIONS.— ‘‘(1) IN GENERAL.—Not later than May 30, 2001, the Secretary shall submit to the Committee on Environ- ment and Public Works of the Senate and the Com- mittee on Transportation and Infrastructure of the House of Representatives any recommendations that the Secretary may have in light of the study under subsection (a). ‘‘(2) CONSIDERATIONS.—In making recommenda- tions, the Secretary shall consider— ‘‘(A) the potential economic, environmental, and budgetary impacts of any proposed revision of the cost-sharing requirements; and ‘‘(B) the effect that any such revision would have on regional port competition.’’ AMENDMENT OF COOPERATION AGREEMENT Pub. L. 104–303, title II, § 201(f), Oct. 12, 1996, 110 Stat. 3673, provided that: ‘‘If requested by the non-Federal in- terest, the Secretary shall amend a project cooperation agreement executed on or before the date of the enact- ment of this Act [Oct. 12, 1996] to reflect the applica- tion of the amendments made by this section [amend- ing this section and section 2241 of this title] to any project for which a contract for construction has not been awarded on or before that date.’’ INCREASES IN NON-FEDERAL SHARE OF COSTS Pub. L. 104–303, title II, § 201(g), Oct. 12, 1996, 110 Stat. 3673, provided that: ‘‘Nothing in this section [amending this section and section 2241 of this title and enacting provisions set out above] (including the amendments made by this section) shall increase, or result in the in- crease of, the non-Federal share of the costs of— ‘‘(1) expanding any confined dredged material dis- posal facility that is operated by the Secretary and that is authorized for cost recovery through the col- lection of tolls; ‘‘(2) any confined dredged material disposal facility for which the invitation for bids for construction was issued before the date of the enactment of this Act [Oct. 12, 1996]; and ‘‘(3) expanding any confined dredged material dis- posal facility constructed under section 123 of the River and Harbor Act of 1970 (33 U.S.C. 1293a) if the capacity of the confined dredged material disposal fa- cility was exceeded in less than 6 years.’’ DREDGED MATERIAL DISPOSAL AREAS STUDY Pub. L. 102–580, title II, § 216, Oct. 31, 1992, 106 Stat. 4832, directed Secretary to conduct a study on the need for changes in Federal law and policy with respect to dredged material disposal areas for construction and maintenance of harbors and inland harbors by Sec- retary and, not later than 18 months after Oct. 31, 1992, to transmit to Congress a report on the results of the study, together with recommendations of the Sec- retary. § 2211a. Preserving United States harbors (a) In general Upon a request from a non-Federal interest, the Secretary shall review a report developed by the non-Federal interest that provides an eco- nomic justification for Federal investment in the operation and maintenance of a federally au- thorized harbor or inland harbor (referred to in this section as a ‘‘federally authorized harbor’’). (b) Justification of investment A report submitted under subsection (a) may provide for an economic justification of Federal investment in the operation and maintenance of a federally authorized harbor based on— (1) the projected economic benefits, includ- ing transportation savings and job creation; and (2) other factors, including navigation safe- ty, national security, and sustainability of subsistence harbors. (c) Written response Not later than 180 days after the date on which the Secretary receives a report under subsection (a), the Secretary shall provide to the non-Fed- eral interest a written response to the report, including an assessment of the information pro- vided by the non-Federal interest. (d) Prioritization As the Secretary determines to be appro- priate, the Secretary may use the information provided in the report under subsection (a) to justify additional operation and maintenance funding for a federally authorized harbor in ac- cordance with section 2211(b) of this title. (e) Limitation on statutory construction Nothing in this section may be construed to preclude the operation and maintenance of a federally authorized harbor under section 2211(b) of this title. (Pub. L. 113–121, title II, § 2107, June 10, 2014, 128 Stat. 1281.) 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. § 2212. Inland waterway transportation (a) Construction 75 percent of the costs of construction— (1) of each project authorized by title III of this Act, (2) of the project authorized by section 652(j) of this title, and (3) allocated to inland navigation for the project authorized by section 844 of this Act, shall be paid only from amounts appropriated from the general fund of the Treasury. 25 per- cent of such costs shall be paid only from amounts appropriated from the Inland Water- ways Trust Fund. For purposes of this sub- section, the term ‘‘construction’’ shall include planning, designing, engineering, surveying, the acquisition of all lands, easements, and rights- of-way necessary for the project, including lands for disposal of dredged material, and relocations necessary for the project. (b) Operation and maintenance The Federal share of the cost of operation and maintenance of any project for navigation on the inland waterways is 100 percent.