§ 2213. — Flood control and other purposes.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC2213]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 36--WATER RESOURCES DEVELOPMENT
SUBCHAPTER I--COST SHARING
Sec. 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).
(Pub. L. 99-662, title I, Sec. 103, Nov. 17, 1986, 100 Stat. 4084; Pub.
L. 101-640, title III, Sec. 305(a), Nov. 28, 1990, 104 Stat. 4635; Pub.
L. 102-580, title II, Sec. 201(a), title III, Sec. 333(b)(2), Oct. 31,
1992, 106 Stat. 4825, 4852; Pub. L. 104-303, title II,
Secs. 202(a)(1)(A), (2), (b)(1), 210(a), Oct. 12, 1996, 110 Stat. 3673,
3681; Pub. L. 106-53, title II, Secs. 215(a), 219(c), Aug. 17, 1999, 113
Stat. 292, 295; Pub. L. 106-109, Sec. 5, Nov. 24, 1999, 113 Stat. 1495;
Pub. L. 106-541, title II, Sec. 204, Dec. 11, 2000, 114 Stat. 2589.)
References in Text
Public Law 98-8, referred to in subsec. (e)(2), is Pub. L. 98-8,
Mar. 24, 1983, 97 Stat. 13. For complete classification of this Act to
the Code, see Tables.
Section 202 of Public Law 96-367, referred to in subsec. (e)(2), is
section 202 of Pub. L. 96-367, title II, Oct. 1, 1980, 94 Stat. 1339,
which is not classified to the Code.
This Act, referred to in subsecs. (f) and (h), 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.
The Flood Control Act of 1946, referred to in subsec. (g)(2)(A), is
act July 24, 1946, ch. 596, 60 Stat. 641, as amended. For complete
classification of this Act to the Code, see Tables.
Public Law 99-88, referred to in subsec. (g)(2)(B), is Pub. L. 99-
88, Aug. 15, 1985, 99 Stat. 293, known as the Supplemental
Appropriations Act, 1985. Provisions of Pub. L. 99-88 authorizing the
project for Eight Mile Creek, Arkansas, are not classified to the Code.
For complete classification of this Act to the Code, see Tables.
The Flood Control Act approved August 18, 1941, referred to in
subsec. (g)(2)(C), is act Aug. 18, 1941, ch. 377, 55 Stat. 638. For
complete classification of this Act to the Code, see Tables.
Amendments
2000--Subsec. (m)(1), (2). Pub. L. 106-541, Sec. 204(1), added pars.
(1) and (2) and struck out former pars. (1) and (2) which required any
cost-sharing agreement to be subject to the ability of a non-Federal
interest to pay and required the Secretary to determine ability to pay
using certain criteria and procedures.
Subsec. (m)(3)(B), (C). Pub. L. 106-541, Sec. 204(2), redesignated
subpar. (C) as (B) and struck out former subpar. (B) which read as
follows: ``shall not consider criteria (other than criteria described in
subparagraph (A)) in effect on the day before October 12, 1996; and''.
1999--Subsec. (b). Pub. L. 106-53, Sec. 219(c)(1), which directed
insertion of the par. (1) designation and heading before ``The non-
Federal'', was executed by making the insertion before that phrase the
first place it appeared to reflect the probable intent of Congress.
Subsec. (b)(2). Pub. L. 106-53, Sec. 219(c)(2), added par. (2).
Subsec. (d). Pub. L. 106-53, Sec. 215(a), designated existing
provisions as par. (1), inserted heading, and added par. (2).
Subsec. (d)(2)(A). Pub. L. 106-109 substituted ``except for a
project for which a District Engineer's Report is completed by that
date,'' for ``or for which a feasibility study is completed after that
date,''.
1996--Subsecs. (a)(2), (b). Pub. L. 104-303, Sec. 202(a)(1)(A),
substituted ``35 percent'' for ``25 percent'' wherever appearing.
Subsec. (c)(7). Pub. L. 104-303, Sec. 210(a), added par. (7).
Subsec. (e)(1). Pub. L. 104-303, Sec. 202(a)(2), inserted at end
``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.''
Subsec. (m). Pub. L. 104-303, Sec. 202(b)(1), reenacted heading
without change and amended text generally. Prior to amendment, text read
as follows: ``Any cost-sharing agreement under this section for flood
control or agricultural water supply shall be subject to the ability of
a non-Federal interest to pay. The ability of any non-Federal interest
to pay shall be determined by the Secretary in accordance with
procedures established by the Secretary.''
1992--Subsec. (i). Pub. L. 102-580, Sec. 333(b)(2), substituted
``Except as provided under section 2283(c) of this title, the non-
Federal'' for ``The non-Federal''.
Subsec. (m). Pub. L. 102-580, Sec. 201(a), amended subsec. (m)
generally. Prior to amendment, subsec. (m) read as follows:
``(1) General rule.--Any cost-sharing agreement under this section
for flood control or agricultural water supply shall be subject to the
ability of a non-Federal interest to pay.
``(2) Procedures.--
``(A) In general.--The ability of any non-Federal interest to
pay shall be determined by the Secretary in accordance with
procedures established by the Secretary.
``(B) Limitations.--The procedures established pursuant to this
subsection shall provide for a reduction in any non-Federal cash
contribution required under subsection (a)(2) of this section. In
addition, such procedures shall provide for determination of the
eligibility of the non-Federal interest for a reduction in the
required cash contribution on the basis of local, not statewide,
economic and financial data.
``(C) Regulations.--Not later than 1 year after November 28,
1990, the Secretary shall issue regulations establishing the
procedures required by this paragraph.''
1990--Subsec. (m). Pub. L. 101-640 amended subsec. (m) generally.
Prior to amendment, subsec. (m) read as follows: ``Any cost-sharing
agreement under this section for flood control or agricultural water
supply shall be subject to the ability of a non-Federal interest to pay.
The ability of any non-Federal interest to pay shall be determined by
the Secretary in accordance with procedures established by the
Secretary.''
Effective Date of 1996 Amendment
Section 202(a)(1)(B) of Pub. L. 104-303 provided that: ``The
amendments made by subparagraph (A) [amending this section] shall apply
to any project authorized after the date of the enactment of this Act
[Oct. 12, 1996] and to any flood control project that is not
specifically authorized by Congress for which a Detailed Project Report
is approved after such date of enactment or, in the case of a project
for which no Detailed Project Report is prepared, construction is
initiated after such date of enactment.''
Section 202(b)(2) of Pub. L. 104-303 provided that:
``(A) Generally.--Subject to subparagraph (C), the amendment made by
paragraph (1) [amending this section] shall apply to any project, or
separable element thereof, with respect to which the Secretary and the
non-Federal interest enter into a project cooperation agreement after
December 31, 1997.
``(B) Amendment of cooperation agreement.--If requested by the non-
Federal interest, the Secretary shall amend a project cooperation
agreement executed on or before the date of the enactment of this Act
[Oct. 12, 1996] to reflect the application of the amendment made by
paragraph (1) to any project for which a contract for construction has
not been awarded on or before such date of enactment.
``(C) Non-federal option.--If requested by the non-Federal interest,
the Secretary shall apply the criteria and procedures established
pursuant to section 103(m) of the Water Resources Development Act of
1986 [subsec. (m) of this section] as in effect on the day before the
date of the enactment of this Act for projects that are authorized
before the date of the enactment of this Act.''
Section 210(b) of Pub. L. 104-303 provided that: ``The amendments
made by subsection (a) [amending this section] apply only to projects
authorized after the date of the enactment of this Act [Oct. 12,
1996].''
Continuation of Existing Regulations
Section 305(b) of Pub. L. 101-640 provided that: ``Regulations
issued to carry out section 103(m) of the Water Resources Development
Act of 1986 [33 U.S.C. 2213(m)] before the date of the enactment of this
Act [Nov. 28, 1990] and in effect on such date shall continue in effect
until regulations are issued pursuant to paragraph (2)(C) of such
section, as added by subsection (a) of this section.''
Reports to Congress
Pub. L. 100-71, title I, July 11, 1987, 101 Stat. 401, provided
that: ``The Secretary of the Army shall file a report with the
appropriate committees of the House of Representatives and the Senate
within ninety days after a written request is made pursuant to the
provisions of subsection (m) of section 103 of Public Law 99-662 [33
U.S.C. 2213(m)] indicating the action taken on the request. In addition,
the Secretary of the Army shall file a report with the appropriate
committees of the House of Representatives and the Senate within ninety
days after enactment of this Act [July 11, 1987] listing any project or
study falling under the provisions of subsection (e)(1) of section 103
of Public Law 99-662.''
Section Referred to in Other Sections
This section is referred to in sections 426h-1, 2214, 2215, 2307,
2326a, 2332 of this title.
