33 USC 2213 - Flood control and other purposes

U.S Code last checked for updates: Feb 22, 2025

§ 2213.

Flood control and other purposes

(a)

Flood control

(1)

General rule

The non-Federal interests for a project with costs assigned to flood control (other than a nonstructural project) shall—

(A)

pay 5 percent of the cost of the project assigned to flood control during construction of the project;

(B)

provide all lands, easements, rights-of-way, and dredged material disposal areas required only for flood control and perform all related necessary relocations; and

(C)

provide that portion of the joint costs of lands, easements, rights-of-way, dredged material disposal areas, and relocations which is assigned to flood control.

(2)

35 percent minimum contribution

(3)

50 percent maximum

(4)

Deferred payment of amount exceeding 30 percent

(b)

Projects using nonstructural, natural, or nature-based features

(1)

In general

(2)

Non-Federal contribution in excess of 35 percent

(c)

Other purposes

The non-Federal share of the cost assigned to other project purposes shall be as follows:

(1)

hydroelectric power: 100 percent, except that the marketing of such power and the recovery of costs of constructing, operating, maintaining, and rehabilitating such projects shall be in accordance with existing law: Provided, That after November 17, 1986, the Secretary shall not submit to Congress any proposal for the authorization of any water resources project that has a hydroelectric power component unless such proposal contains the comments of the appropriate Power Marketing Administrator designated pursuant to section 7152 of title 42 concerning the appropriate Power Marketing Administration’s ability to market the hydroelectric power expected to be generated and not required in the operation of the project under the applicable Federal power marketing law, so that, 100 percent of operation, maintenance and replacement costs, 100 percent of the capital investment allocated to the purpose of hydroelectric power (with interest at rates established pursuant to or prescribed by applicable law), and any other costs assigned in accordance with law for return from power revenues can be returned within the period set for the return of such costs by or pursuant to such applicable Federal power marketing law;

(2)

municipal and industrial water supply: 100 percent;

(3)

agricultural water supply: 35 percent;

(4)

recreation, including recreational navigation: 50 percent of separable costs and, in the case of any harbor or inland harbor or channel project, 50 percent of joint and separable costs allocated to recreational navigation;

(5)

hurricane and storm damage reduction: 35 percent;

(6)

aquatic plant control: 50 percent of control operations; and

(7)

environmental protection and restoration: 35 percent; except that nothing in this paragraph shall affect or limit the applicability of section 2283 of this title.

(d)

Certain other costs assigned to project purposes

(1)

Construction

(2)

Periodic nourishment

(A)

In general

In the case of a project authorized for construction after December 31, 1999, except for a project for which a District Engineer’s Report is completed by that date, the non-Federal cost of the periodic nourishment of the project, or any measure for shore protection or beach erosion control for the project, that is carried out—

(i)

after January 1, 2001, shall be 40 percent;

(ii)

after January 1, 2002, shall be 45 percent; and

(iii)

after January 1, 2003, shall be 50 percent.

(B)

Benefits to privately owned shores

(C)

Benefits to federally owned shores

(e)

Applicability

(1)

In general

(2)

Exceptions

(f)

“Separable element” defined

For purposes of this Act, the term “separable element” means a portion of a project—

(1)

which is physically separable from other portions of the project; and

(2)

which—

(A)

achieves hydrologic effects, or

(B)

produces physical or economic benefits,

which are separately identifiable from those produced by other portions of the project.

(g)

Deferral of payment

(1)

With respect to the projects listed in paragraph (2), no amount of the non-Federal share required under this section shall be required to be paid during the three-year period beginning on November 17, 1986.

(2)

The projects referred to in paragraph (1) are the following:

(A)

Boeuf and Tensas Rivers, Tensas Basin, Louisiana and Arkansas, authorized by the Flood Control Act of 1946;

(B)

Eight Mile Creek, Arkansas, authorized by Public Law 99–88; and

(C)

Rocky Bayou Area, Yazoo Backwater Area, Yazoo Basin, Mississippi, authorized by the Flood Control Act approved August 18, 1941.

(h)

Assigned joint and separable costs

(i)

Lands, easements, rights-of-way, dredged material disposal areas, and relocations

(j)

Agreement

(1)

Requirement for agreement

(A)

In general

(B)

Inclusion

(2)

Elements of agreement

The agreement required pursuant to paragraph (1) shall be in accordance with the requirements of section 1962d–5b of title 42 and shall provide for the rights and duties of the United States and the non-Federal interest with respect to the construction, operation, and maintenance of the project, including, but not limited to, provisions specifying that, in the event the non-Federal interest fails to provide the required non-Federal share of costs for such work, the Secretary—

(A)

shall terminate or suspend work on the project unless the Secretary determines that continuation of the work is in the interest of the United States or is necessary in order to satisfy agreements with other non-Federal interests in connection with the project; and

(B)

may terminate or adjust the rights and privileges of the non-Federal interest to project outputs under the terms of the agreement.

(k)

Payment options

(1)

In general

(2)

Renegotiation of terms

(A)

In general

At the request of a non-Federal interest, the Secretary and the non-Federal interest may renegotiate the terms and conditions of an eligible deferred payment, including—

(i)

permitting the non-Federal contribution to be made without interest, pursuant to paragraph (1);

(ii)

recalculation of the interest rate;

(iii)

full or partial forgiveness of interest accrued during the period of construction; and

(iv)

a credit against construction interest for a non-Federal investment that benefits the completion or performance of the project or separable element.

(B)

Eligible deferred payment

An eligible deferred payment agreement under subparagraph (A) is an agreement for which—

(i)

the non-Federal contribution was made with interest;

(ii)

the period of project construction exceeds 10 years from the execution of a project partnership agreement or appropriation of funds; and

(iii)

the construction interest exceeds $45,000,000.

(3)

Credit for non-Federal contribution

(A)

In general

(B)

Credit of costs

(4)

Treatment of pre-payment

(A)

In general

Notwithstanding a deferred payment agreement with a non-Federal interest, the Secretary shall accept, without interest of any type, the repayment of a non-Federal contribution for any eligible deferred payment described in paragraph (2)(B) for which—

(i)

the non-Federal interest made a payment of at least $200,000,000 for that eligible deferred payment agreement on or before September 30, 2021;

(ii)

the non-Federal interest made a payment of an additional $200,000,000 for that eligible deferred payment agreement on or before September 30, 2023; and

(iii)

the non-Federal interest repays the balance of remaining principal by June 1, 2032.

(B)

Repayment options

Repayment of a non-Federal interest’s contribution under subparagraph (A)(iii) may be satisfied through the provision by the non-Federal interest of fish and wildlife mitigation for one or more projects or separable elements, if the Secretary determines that—

(i)

the non-Federal interest has incurred costs for the provision of mitigation that—

(I)

equal or exceed the amount of the required repayment; and

(II)

are in excess of any required non-Federal interest’s contribution for the project or separable element for which the mitigation is provided; and

(ii)

the mitigation is integral to the project for which it is provided.

(C)

Refund of credit

(5)

Congressional notification

(A)

In general

(B)

Sense of Congress

(l)

Delay of payment

(1)

Initial payment

(2)

Interest

(A)

In general

At the request of any non-Federal interest, the Secretary may waive the accrual of interest on any non-Federal cash contribution under this section or section 2211 of this title for a project for a period of not more than 1 year if the Secretary determines that—

(i)

the waiver will contribute to the ability of the non-Federal interest to make future contributions; and

(ii)

the non-Federal interest is in good standing under terms agreed to under subsection (k)(1).

(B)

Limitations

(m)

Ability to pay

(1)

In general

(2)

Criteria

The Secretary shall determine the ability of a non-Federal interest to pay under this subsection by considering—

(A)

per capita income data for the county or counties in which the project is to be located;

(B)

the per capita non-Federal cost of construction of the project for the county or counties in which the project is to be located;

(C)

the financial capabilities of the non-Federal interest for the project;

(D)

the extent to which the non-Federal interest is an economically disadvantaged community (as defined pursuant to section 160 of the Water Resources Development Act of 2020 (33 U.S.C. 2201 note)); and

(E)

any additional criteria relating to the non-Federal interest’s financial ability to carry out its cost-sharing responsibilities determined appropriate by the Secretary.

(3)

Procedures

For purposes of carrying out paragraph (2), the Secretary shall develop procedures—

(A)

to allow a non-Federal interest to identify the amount such non-Federal interest would likely be able to pay; and

(B)

for a non-Federal interest to submit a request to the Secretary to reduce the required non-Federal share.

(4)

Non-Federal share

(5)

Exception

(6)

Report

(A)

In general

(B)

Contents

The Secretary shall include in each report required under subparagraph (A) a description, for the applicable year, of—

(i)

requests by a non-Federal interest to reduce the non-Federal share required in a cost-sharing agreement, including—

(I)

the name of the non-Federal interest that submitted to the Secretary a request for a determination under this subsection; and

(II)

the name and location of the project;

(ii)

the determination of the Secretary with respect to each such request;

(iii)

the basis for each such determination; and

(iv)

the adjusted share of the costs of the project of the non-Federal interest, if applicable.

(C)

Inclusion in chief’s report

(n)

Non-Federal contributions

(1)

Prohibition on solicitation of excess contributions

The Secretary may not—

(A)

solicit contributions from non-Federal interests for costs of constructing authorized water resources projects or measures in excess of the non-Federal share assigned to the appropriate project purposes listed in subsections (a), (b), and (c); or

(B)

condition Federal participation in such projects or measures on the receipt of such contributions.

(2)

Limitation on statutory construction

(Pub. L. 99–662, title I, § 103, Nov. 17, 1986, 100 Stat. 4084; Pub. L. 101–640, title III, § 305(a), Nov. 28, 1990, 104 Stat. 4635; Pub. L. 102–580, title II, § 201(a), title III, § 333(b)(2), Oct. 31, 1992, 106 Stat. 4825, 4852; Pub. L. 104–303, title II, §§ 202(a)(1)(A), (2), (b)(1), 210(a), Oct. 12, 1996, 110 Stat. 3673, 3681; Pub. L. 106–53, title II, §§ 215(a), 219(c), Aug. 17, 1999, 113 Stat. 292, 295; Pub. L. 106–109, § 5, Nov. 24, 1999, 113 Stat. 1495; Pub. L. 106–541, title II, § 204, Dec. 11, 2000, 114 Stat. 2589; Pub. L. 110–114, title II, §§ 2001, 2019(a), Nov. 8, 2007, 121 Stat. 1067, 1078; Pub. L. 116–260, div. AA, title I, §§ 115(b), 143, title III, § 351, Dec. 27, 2020, 134 Stat. 2627, 2653, 2717; Pub. L. 117–263, div. H, title LXXXI, §§ 8385, 8386, Dec. 23, 2022, 136 Stat. 3829, 3830; Pub. L. 118–272, div. A, title I, § 1139(a), title III, §§ 1358, 1359, Jan. 4, 2025, 138 Stat. 3026, 3162.)

cite as: 33 USC 2213

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