§ 2232.
(a)
Water resources development project defined
In this section, the term “water resources development project” means a project recommendation that results from—
(1)
a feasibility report, as such term is defined in section 2282d(f)
1
See References in Text note below.
of this title;
(3)
a final feasibility study for water resources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Secretary.
(b)
Authority
(1)
In general
A non-Federal interest may carry out a federally authorized water resources development project, or separable element thereof—
(A)
in accordance with a plan approved by the Secretary for the project or separable element; and
(2)
Conditions
Before carrying out a water resources development project, or separable element thereof, under this section, a non-Federal interest shall—
(A)
obtain any permit or approval required in connection with the project or separable element under Federal or State law, except as provided in paragraph (3); and
(B)
ensure that a final environmental impact statement or environmental assessment, as appropriate, for the project or separable element has been filed.
(3)
Permit exception
(A)
In general
For a project described in subsection (a)(1) or subsection (a)(3), or a separable element thereof, with respect to which a written agreement described in subparagraph (B) has been entered into, a non-Federal interest that carries out a project under this section shall not be required to obtain any Federal permits or approvals that would not be required if the Secretary carried out the project or separable element unless significant new circumstances or information relevant to environmental concerns or compliance have arisen since development of the project recommendation.
(B)
Written agreement
For purposes of this paragraph, a written agreement shall provide that the non-Federal interest shall comply with the same legal and technical requirements that would apply if the project or separable element were carried out by the Secretary, including all mitigation required to offset environmental impacts of the project or separable element as determined by the Secretary.
(C)
Certifications
Notwithstanding subparagraph (A), if a non-Federal interest carrying out a project under this section would, in the absence of a written agreement entered into under this paragraph, be required to obtain a certification from a State under Federal law to carry out the project, such certification shall still be required if a written agreement is entered into with respect to the project under this paragraph.
(4)
Data sharing
(A)
In general
If a non-Federal interest for a water resources development project begins to carry out that water resources development project under this section, the non-Federal interest may request that the Secretary transfer to the non-Federal interest all relevant data and documentation under the control of the Secretary with respect to that water resources development project.
(B)
Deadline
Except as provided in subparagraph (C), the Secretary shall transfer the data and documentation requested by a non-Federal interest under subparagraph (A) not later than the date that is 90 days after the date on which the non-Federal interest so requests such data and documentation.
(C)
Limitation
Nothing in this paragraph obligates the Secretary to share any data or documentation that the Secretary considers to be proprietary information.
(d)
Credit or reimbursement
(1)
General rule
Subject to paragraph (3), a project or separable element of a project carried out by a non-Federal interest under this section shall be eligible for credit or reimbursement for the Federal share of work carried out on a project or separable element of a project if—
(A)
before initiation of construction of the project or separable element—
(i)
the Secretary approves the plan for construction of the project or separable element of the project by the non-Federal interest;
(ii)
the Secretary determines, before approval of the plan, that the project or separable element of the project is feasible; and
(iii)
the non-Federal interest enters into a written agreement with the Secretary under
section 1962d–5b of title 42, including an agreement to pay the non-Federal share, if any, of the cost of operation and maintenance of the project; and
(B)
the Secretary determines that all Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified under subsection (b)(1)(B), were complied with by the non-Federal interest during construction of the project or separable element of the project.
(2)
Application of credit
The Secretary may apply credit toward—
(A)
the non-Federal share of authorized separable elements of the same project; or
(B)
subject to the requirements of this section and
section 2223 of this title, at the request of the non-Federal interest, the non-Federal share of a different water resources development project.
(3)
Requirements
The Secretary may only apply credit or provide reimbursement under paragraph (1) if—
(A)
Congress has authorized construction of the project or separable element of the project;
(B)
(i)
all applicable permits or approvals; and
(C)
in the case of reimbursement, appropriations are provided by Congress for such purpose.
(4)
Monitoring
The Secretary shall regularly monitor and audit any water resources development project, or separable element of a water resources development project, constructed by a non-Federal interest under this section to ensure that—
(A)
the construction is carried out in compliance with the requirements of this section; and
(B)
the costs of the construction are reasonable.
(5)
Discrete segments
(A)
In general
The Secretary may authorize credit or reimbursement under this subsection for carrying out a discrete segment of a federally authorized water resources development project, or separable element thereof, before final completion of the project or separable element if—
(i)
except as provided in clause (ii), the Secretary determines that the discrete segment satisfies the requirements of paragraphs (1) through (4) in the same manner as the project or separable element; and
(ii)
notwithstanding paragraph (1)(A)(ii), the Secretary determines, before the approval of the plan under paragraph (1)(A)(i), that the discrete segment is technically feasible and environmentally acceptable.
(B)
Determination
Credit or reimbursement may not be made available to a non-Federal interest pursuant to this paragraph until the Secretary determines that—
(i)
the construction of the discrete segment for which credit or reimbursement is requested is complete; and
(ii)
the construction is consistent with the authorization of the applicable water resources development project, or separable element thereof, and the plan approved under paragraph (1)(A)(i).
(C)
Written agreement
(i)
In general
As part of the written agreement required under paragraph (1)(A)(iii), a non-Federal interest to be eligible for credit or reimbursement under this paragraph shall—
(I)
identify any discrete segment that the non-Federal interest may carry out; and
(II)
agree to the completion of the water resources development project, or separable element thereof, with respect to which the discrete segment is a part and establish a timeframe for such completion.
(ii)
Remittance
If a non-Federal interest fails to complete a water resources development project, or separable element thereof, that it agreed to complete under clause (i)(II), the non-Federal interest shall remit any reimbursements received under this paragraph for a discrete segment of such project or separable element.
(D)
Discrete segment defined
In this paragraph, the term “discrete segment” means a physical portion of a water resources development project to be carried out, or separable element thereof—
(i)
described by a non-Federal interest in a written agreement required under paragraph (1)(A)(iii); and
(ii)
that the non-Federal interest can operate and maintain, independently and without creating a hazard, in advance of final completion of the water resources development project, or separable element thereof.
(6)
Exclusions
The Secretary may not provide credit or reimbursement for—
(A)
activities required by the non-Federal interest to initiate design and construction that would otherwise not be required by the Secretary; or
(B)
delays incurred by the non-Federal interest resulting in project cost increases.
(e)
Notification of committees
If a non-Federal interest notifies the Secretary that the non-Federal interest intends to carry out a project, or separable element thereof, under this section, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives concerning the intent of the non-Federal interest.
([Pub. L. 99–662, title II, § 204], Nov. 17, 1986, [100 Stat. 4099]; [Pub. L. 101–640, title III, § 303], Nov. 28, 1990, [104 Stat. 4634]; [Pub. L. 113–121, title I, § 1014(b)(1)], June 10, 2014, [128 Stat. 1220]; [Pub. L. 114–322, title I, § 1127], Dec. 16, 2016, [130 Stat. 1648]; [Pub. L. 115–270, title I, § 1153], Oct. 23, 2018, [132 Stat. 3789]; [Pub. L. 116–260, div. AA, title I, § 105(a)], (b), Dec. 27, 2020, [134 Stat. 2622]; [Pub. L. 118–272, div. A, title I, § 1110(a)], Jan. 4, 2025, [138 Stat. 3009].)
