§ 701b-13. — Construction of flood control projects by nonFederal interests.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 33USC701b-13]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 15--FLOOD CONTROL
Sec. 701b-13. Construction of flood control projects by non-
Federal interests
(a) Authority
Non-Federal interests are authorized to undertake flood control
projects in the United States, subject to obtaining any permits required
pursuant to Federal and State laws in advance of actual construction.
(b) Studies and design activities
(1) By non-Federal interests
A non-Federal interest may prepare, for review and approval by
the Secretary, the necessary studies and design documents for any
construction to be undertaken pursuant to subsection (a) of this
section.
(2) By Secretary
Upon request of an appropriate non-Federal interest, the
Secretary may undertake all necessary studies and design activities
for any construction to be undertaken pursuant to subsection (a) of
this section and provide technical assistance in obtaining all
necessary permits for such construction if the non-Federal interest
contracts with the Secretary to provide to the United States funds
for the studies and design activities during the period in which the
studies and design activities will be conducted.
(c) Completion of studies and design activities
In the case of any study or design documents for a flood control
project that were initiated before October 12, 1996, the Secretary may
complete and transmit to the appropriate non-Federal interests the study
or design documents or, upon the request of such non-Federal interests,
terminate the study or design activities and transmit the partially
completed study or design documents to such non-Federal interests for
completion. Studies and design documents subject to this subsection
shall be completed without regard to the requirements of subsection (b)
of this section.
(d) Authority to carry out improvement
(1) In general
(A) Studies and design activities under subsection (b)
(i) In general
A non-Federal interest may carry out construction for
which studies and design documents are prepared under
subsection (b) of this section only if the Secretary
approves the project for construction.
(ii) Criteria for approval
The Secretary shall approve a project for construction
if the Secretary determines that the project is technically
sound, economically justified, and environmentally
acceptable and meets the requirements for obtaining the
appropriate permits required under the authority of the
Secretary.
(iii) No unreasonable withholding of approval
The Secretary shall not unreasonably withhold approval
of a project for construction.
(iv) No effect on regulatory authority
Nothing in this subparagraph affects any regulatory
authority of the Secretary.
(B) Studies and design activities under subsection (c)
Any non-Federal interest that has received from the
Secretary under subsection (c) of this section a favorable
recommendation to carry out a flood control project, or
separable element of a flood control project, based on the
results of completed studies and design documents for the
project or element may carry out the project or element if a
final environmental impact statement under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has
been filed for the project or element.
(2) Permits
Any plan of improvement proposed to be implemented in accordance
with this subsection (other than paragraph (1)(A)) shall be deemed
to satisfy the requirements for obtaining the appropriate permits
required under the Secretary's authority. Such permits shall be
granted subject to the non-Federal interest's acceptance of the
terms and conditions of such permits if the Secretary determines
that the applicable regulatory criteria and procedures have been
satisfied.
(3) Monitoring
The Secretary shall monitor any project for which a permit is
granted under this subsection in order to ensure that such project
is constructed, operated, and maintained in accordance with the
terms and conditions of such permit.
(e) Reimbursement
(1) General rule
Subject to appropriations Acts, the Secretary may reimburse any
non-Federal interest an amount equal to the estimate of the Federal
share, without interest, of the cost of any authorized flood control
project, or separable element of a flood control project,
constructed pursuant to this section and provide credit for the non-
Federal share of the project--
(A) if, after authorization and before initiation of
construction of the project or separable element, the Secretary
approves the plans for construction of such project by the non-
Federal interest;
(B) if the Secretary finds, after a review of studies and
design documents prepared pursuant to this section, that
construction of the project or separable element is economically
justified and environmentally acceptable; and
(C) if the construction work is substantially in accordance
with plans prepared under subsection (b) of this section.
(2) Special rules
(A) Reimbursement or credit
For work (including work associated with studies, planning,
design, and construction) carried out by a non-Federal interest
with respect to a project described in subsection (f) of this
section, the Secretary shall, subject to the availability of
appropriations, reimburse, without interest, the non-Federal
interest an amount equal to the estimated Federal share of the
cost of such work, or provide credit (depending on the request
of the non-Federal interest) for the non-Federal share of such
work, if such work is later recommended by the Chief of
Engineers and approved by the Secretary.
(B) Credit
If the non-Federal interest for a project described in
subsection (f) of this section carries out work before
completion of a reconnaissance study by the Secretary and if
such work is determined by the Secretary to be compatible with
the project later recommended by the Secretary, the Secretary
shall credit the non-Federal interest for its share of the cost
of the project for such work.
(3) Matters to be considered in reviewing plans
In reviewing plans under this subsection, the Secretary shall
consider budgetary and programmatic priorities and other factors
that the Secretary considers appropriate.
(4) Monitoring
The Secretary shall regularly monitor and audit any project for
flood control approved for construction under this section by a non-
Federal interest to ensure that such construction is in compliance
with the plans approved by the Secretary and that the costs are
reasonable.
(5) Limitation on reimbursements
The Secretary may not make any reimbursement under this section
until the Secretary determines that the work for which reimbursement
is requested has been performed in accordance with applicable
permits and approved plans.
(6) Schedule and manner of reimbursement
(A) Budgeting
The Secretary shall budget and request appropriations for
reimbursements under this section on a schedule that is
consistent with a Federal construction schedule.
(B) Commencement of reimbursements
Reimbursements under this section may commence on approval
of a project by the Secretary.
(C) Credit
At the request of a non-Federal interest, the Secretary may
reimburse the non-Federal interest by providing credit toward
future non-Federal costs of the project.
(D) Scheduling
Nothing in this paragraph affects the discretion of the
President to schedule new construction starts.
(f) Specific projects
For the purpose of demonstrating the potential advantages and
effectiveness of non-Federal implementation of flood control projects,
the Secretary shall enter into agreements pursuant to this section with
non-Federal interests for development of the following flood control
projects by such interests:
(1) Berryessa Creek, California
The Berryessa Creek element of the project for flood control,
Coyote and Berryessa Creeks, California, authorized by section
101(a)(5) of the Water Resources Development Act of 1990 (104 Stat.
4606); except that, subject to the approval of the Secretary as
provided by this section, the non-Federal interest may design and
construct an alternative to such element.
(2) Los Angeles County Drainage Area, California
The project for flood control, Los Angeles County Drainage Area,
California, authorized by section 101(b) of the Water Resources
Development Act of 1990 (104 Stat. 4611).
(3) Stockton Metropolitan Area, California
The project for flood control, Stockton Metropolitan Area,
California.
(4) Upper Guadalupe River, California
The project for flood control, Upper Guadalupe River,
California.
(5) Flamingo and Tropicana Washes, Nevada
The project for flood control, Las Vegas Wash and Tributaries
(Flamingo and Tropicana Washes), Nevada, authorized by section
101(13) of the Water Resources Development Act of 1992 (106 Stat.
4803).
(6) Brays Bayou, Texas
Flood control components comprising the Brays Bayou element of
the project for flood control, Buffalo Bayou and tributaries, Texas,
authorized by section 101(a)(21) of the Water Resources Development
Act of 1990 (104 Stat. 4610); except that, subject to the approval
of the Secretary as provided by this section, the non-Federal
interest may design and construct an alternative to the diversion
component of such element.
(7) Hunting Bayou, Texas
The Hunting Bayou element of the project for flood control,
Buffalo Bayou and tributaries, Texas, authorized by such section;
except that, subject to the approval of the Secretary as provided by
this section, the non-Federal interest may design and construct an
alternative to such element.
(8) White Oak Bayou, Texas
The project for flood control, White Oak Bayou watershed, Texas.
(g) Treatment of flood damage prevention measures
For the purposes of this section, flood damage prevention measures
at or in the vicinity of Morgan City and Berwick, Louisiana, shall be
treated as an authorized separable element of the Atchafalaya Basin
feature of the project for flood control, Mississippi River and
Tributaries.
(Pub. L. 104-303, title II, Sec. 211, Oct. 12, 1996, 110 Stat. 3681;
Pub. L. 106-53, title II, Sec. 223, Aug. 17, 1999, 113 Stat. 296; Pub.
L. 106-60, title VI, Sec. 606, Sept. 29, 1999, 113 Stat. 501.)
References in Text
The National Environmental Policy Act of 1969, referred to in
subsec. (d)(1), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as
amended, which is classified generally to chapter 55 (Sec. 4321 et seq.)
of Title 42, The Public Health and Welfare. For complete classification
of this Act to the Code, see Short Title note set out under section 4321
of Title 42 and Tables.
Section 101 of the Water Resources Development Act of 1990, referred
to in subsec. (f)(1), (2), (6), is section 101 of Pub. L. 101-640, title
I, Nov. 28, 1990, 104 Stat. 4605, which is not classified to the Code.
Section 101(13) of the Water Resources Development Act of 1992,
referred to in subsec. (f)(5), is section 101(13) of Pub. L. 102-580,
title I, Oct. 31, 1992, 106 Stat. 4803, which is not classified to the
Code.
Amendments
1999--Subsec. (d)(1). Pub. L. 106-53, Sec. 223(a)(1), added subpar.
(A), designated existing provisions as subpar. (B), inserted subpar.
heading, and substituted ``under subsection (c)'' for ``pursuant to
subsection (b) or (c)''.
Subsec. (d)(2). Pub. L. 106-53, Sec. 223(a)(2), inserted ``(other
than paragraph (1)(A))'' after ``this subsection'' in first sentence.
Subsec. (e)(1). Pub. L. 106-53, Sec. 223(b)(1), inserted ``and
provide credit for the non-Federal share of the project'' after
``constructed pursuant to this section'' in introductory provisions, and
added subpar. (C).
Subsec. (e)(2)(A). Pub. L. 106-60, which directed the amendment of
subpar. (A) by striking out ``in advance in appropriations Acts'', could
not be executed because that phrase did not appear in text subsequent to
the amendment by Pub. L. 106-53, Sec. 223(b)(2). See below.
Pub. L. 106-53, Sec. 223(b)(2), in subpar. heading, inserted ``or
credit'' after ``Reimbursement'' and, in text, substituted ``subject to
the availability of appropriations'' for ``subject to amounts being made
available in advance in appropriations Acts'' and inserted ``, or
provide credit (depending on the request of the non-Federal interest)
for the non-Federal share of such work,'' after ``the cost of such
work''.
Subsec. (e)(6). Pub. L. 106-53, Sec. 223(b)(3), added par. (6).
