33 U.S.C. § 2213 : US Code - Section 2213: Flood control and other purposes

Search 33 U.S.C. § 2213 : US Code - Section 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
If the value of the contributions required under paragraph (1)
of this subsection is less than 35 percent of the cost of the
project assigned to flood control, the non-Federal interest shall
pay during construction of the project such additional amounts as
are necessary so that the total contribution of the non-Federal
interests under this subsection is equal to 35 percent of the
cost of the project assigned to flood control.
(3) 50 percent maximum
The non-Federal share under paragraph (1) shall not exceed 50
percent of the cost of the project assigned to flood control. The
preceding sentence does not modify the requirement of paragraph
(1)(A) of this subsection.
(4) Deferred payment of amount exceeding 30 percent
If the total amount of the contribution required under
paragraph (1) of this subsection exceeds 30 percent of the cost
of the project assigned to flood control, the non-Federal
interests may pay the amount of the excess to the Secretary over
a 15-year period (or such shorter period as may be agreed to by
the Secretary and the non-Federal interests) beginning on the
date construction of the project or separable element is
completed, at an interest rate determined pursuant to section
2216 of this title. The preceding sentence does not modify the
requirement of paragraph (1)(A) of this subsection.
(b) Nonstructural flood control projects
(1) In general
The non-Federal share of the cost of nonstructural flood
control measures shall be 35 percent of the cost of such
measures. The non-Federal interests for any such measures shall
be required to provide all lands, easements, rights-of-way,
dredged material disposal areas, and relocations necessary for
the project, but shall not be required to contribute any amount
in cash during construction of the project.
(2) Non-Federal contribution in excess of 35 percent
At any time during construction of a project, if the Secretary
determines that the costs of land, easements, rights-of-way,
dredged material disposal areas, and relocations for the project,
in combination with other costs contributed by the non-Federal
interests, will exceed 35 percent, any additional costs for the
project (not to exceed 65 percent of the total costs of the
project) shall be a Federal responsibility and shall be
contributed during construction as part of the Federal share.
(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
Costs of constructing projects or measures for beach erosion
control and water quality enhancement shall be assigned to
appropriate project purposes listed in subsections (a), (b), and
(c) of this section and shall be shared in the same percentage as
the purposes to which the costs are assigned, except that all
costs assigned to benefits to privately owned shores (where use
of such shores is limited to private interests) or to prevention
of losses of private lands shall be borne by non-Federal
interests and all costs assigned to the protection of federally
owned shores shall be borne by the United States.
(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
All costs assigned to benefits of periodic nourishment
projects or measures to privately owned shores (where use of
such shores is limited to private interests) or to prevention
of losses of private land shall be borne by the non-Federal
interest.
(C) Benefits to federally owned shores
All costs assigned to the protection of federally owned
shores for periodic nourishment measures shall be borne by the
United States.
(e) Applicability
(1) In general
This section applies to any project (including any small
project which is not specifically authorized by Congress and for
which the Secretary has not approved funding before November 17,
1986), or separable element thereof, on which physical
construction is initiated after April 30, 1986, as determined by
the Secretary, except as provided in paragraph (2). For the
purpose of the preceding sentence, physical construction shall be
considered to be initiated on the date of the award of a
construction contract.
(2) Exceptions
This section shall not apply to the Yazoo Basin, Mississippi,
Demonstration Erosion Control Program, authorized by Public Law
98-8, or to the Harlan, Kentucky, or Barbourville, Kentucky,
elements of the project authorized by section 202 of Public Law
96-367.
(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
The share of the costs specified under this section for each
project purpose shall apply to the joint and separable costs of
construction of each project assigned to that purpose, except as
otherwise specified in this Act.
(i) Lands, easements, rights-of-way, dredged material disposal
areas, and relocations
Except as provided under section 2283(c) of this title, the non-
Federal interests for a project to which this section applies
shall provide all lands, easements, rights-of-way, and dredged
material disposal areas required for the project and perform all
necessary relocations, except to the extent limited by any
provision of this section. The value of any contribution under the
preceding sentence shall be included in the non-Federal share of
the project specified in this section.
(j) Agreement
(1) Requirement for agreement
Any project to which this section applies (other than a project
for hydroelectric power) shall be initiated only after non-
Federal interests have entered into binding agreements with the
Secretary to pay 100 percent of the operation, maintenance, and
replacement and rehabilitation costs of the project, to pay the
non-Federal share of the costs of construction required by this
section, and to 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.
(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
Except as otherwise provided in this section, the Secretary may
permit the full non-Federal contribution to be made without
interest during construction of the project or separable element,
or with interest at a rate determined pursuant to section 2216 of
this title over a period of not more than thirty years from the
date of completion of the project or separable element. Repayment
contracts shall provide for recalculation of the interest rate at
five-year intervals.
(l) Delay of initial payment
At the request of any non-Federal interest the Secretary may
permit such non-Federal interest to delay the initial payment of
any non-Federal contribution under this section or section 2211 of
this title for up to one year after the date when construction is
begun on the project for which such contribution is to be made. Any
such delay in initial payment shall be subject to interest charges
for up to six months at a rate determined pursuant to section 2216
of this title.
(m) Ability to pay
(1) In general
Any cost-sharing agreement under this section for a feasibility
study, or for construction of an environmental protection and
restoration project, a flood control project, a project for
navigation, storm damage protection, shoreline erosion, hurricane
protection, or recreation, or an agricultural water supply
project, shall be subject to the ability of the non-Federal
interest to pay.
(2) Criteria and procedures
The ability of a non-Federal interest to pay shall be
determined by the Secretary in accordance with criteria and
procedures in effect under paragraph (3) on the day before
December 11, 2000; except that such criteria and procedures shall
be revised, and new criteria and procedures shall be developed,
not later than 180 days after December 11, 2000, to reflect the
requirements of such paragraph (3).
(3) Revision of criteria and procedures
In revising criteria and procedures pursuant to paragraph (2),
the Secretary -
(A) shall consider -
(i) per capita income data for the county or counties in
which the project is to be located; and
(ii) the per capita non-Federal cost of construction of the
project for the county or counties in which the project is to
be located; and
(B) may consider additional criteria relating to the non-
Federal interest's financial ability to carry out its cost-
sharing responsibilities, to the extent that the application
of such criteria does not eliminate areas from eligibility for
a reduction in the non-Federal share as determined under
subparagraph (A).
(4) Non-Federal share
Notwithstanding subsection (a) of this section, the Secretary
may reduce the requirement that a non-Federal interest make a
cash contribution for any project that is determined to be
eligible for a reduction in the non-Federal share under criteria
and procedures in effect under paragraphs (1), (2), and (3).