Study of water resources development projects by non-Federal interests

33 U.S.C. § 2231

• Title: 33 — Navigation and Navigable Waters
• Chapter: SUBCHAPTER II—HARBOR DEVELOPMENT

Text

(a) Submission to Secretary
A non-Federal interest may undertake and submit to the Secretary—
(A) a federally authorized feasibility study of a proposed water resources development project; or
(B) upon the determination of the Secretary that the modifications are consistent with the authorized purposes of the project, a feasibility study on modifications to a water resources development project constructed by the Corps of Engineers or constructed by a non-Federal interest pursuant to section 2232 of this title.
To assist non-Federal interests, the Secretary shall issue guidelines for the formulation of feasibility studies of water resources development projects undertaken by non-Federal interests that—
(A) provide clear, concise, and transparent guidance for the non-Federal interest to use in developing a feasibility study that complies with requirements that would apply to a feasibility study undertaken by the Secretary;
(B) provide sufficient information for the formulation of the studies, including processes and procedures related to reviews and assistance under subsection (e);
(C) provide guidance to a non-Federal interest on obtaining support from the Secretary to complete elements of a feasibility study that may be considered inherently governmental and required to be done by a Federal agency; and
(D) provide contacts for employees of the Corps of Engineers that a non-Federal interest may use to initiate coordination with the Secretary and identify at what stages coordination may be beneficial.
If a non-Federal interest requests to undertake a feasibility study on a modification to a constructed water resources development project under paragraph (1)(B), the Secretary shall expeditiously provide to the non-Federal interest the determination required under such paragraph with respect to whether conceptual modifications, as presented by the non-Federal interest, are consistent with the authorized purposes of the project.
(b) Review by Secretary
The Secretary shall review each feasibility study received under subsection (a)(1) for the purpose of determining whether or not the study, and the process under which the study was developed, each comply with Federal laws and regulations applicable to feasibility studies of water resources development projects.
The Secretary may not submit to Congress an assessment of a feasibility study under this section until such time as the Secretary—
(A) determines that the feasibility study complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and
(B) completes all of the Federal analyses, reviews, and compliance processes under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), that would be required with respect to the proposed project if the Secretary had undertaken the feasibility study.
The non-Federal interest may submit to the Secretary a request that the Secretary initiate the analyses, reviews, and compliance processes described in paragraph (2)(B) with respect to the proposed project prior to the non-Federal interest's submission of a feasibility study under subsection (a)(1).
Receipt by the Secretary of a request submitted under clause (i) shall be considered the receipt of a proposal or application that will lead to a major Federal action that is subject to the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) that would be required if the Secretary were to undertake the feasibility study.
Not later than 10 days after the Secretary receives a study submission under subsection (a) or receives a request under subparagraph (A), the Secretary shall begin the required analyses, reviews, and compliance processes.
The Secretary shall notify a non-Federal interest if, upon initial review of a submission received under subsection (a) or a receipt of a request under subparagraph (A), the Secretary requires additional information to perform the required analyses, reviews, and compliance processes and include in such notification a detailed description of the required information.
Upon receipt of a study submission under subsection (a) or receipt of a request under paragraph (3)(A), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate of the submission or request and a timeline for completion of the required analyses, reviews, and compliance processes and shall notify the non-Federal interest of such timeline.
Not later than 30 days after receiving a study submission under subsection (a) or a request under paragraph (3)(A), and every 30 days thereafter until the Secretary submits an assessment under subsection (c) for the applicable feasibility study, the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Environment and Public Works of the Senate, and the non-Federal interest of the status of the Secretary's required analyses, reviews, and compliance processes.
(c) Submission to Congress
Not later than 180 days after the completion of review of a feasibility study under subsection (b), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an assessment that describes—
(A) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
(B) any recommendations the Secretary may have concerning the plan or design of the project; and
(C) any conditions the Secretary may require for construction of the project.
The completion of the review by the Secretary of a feasibility study that has been submitted under subsection (a)(1) may not be delayed as a result of consideration being given to changes in policy or priority with respect to project consideration.
(d) Credit
If a project for which a feasibility study has been submitted under subsection (a)(1) is authorized by a Federal law enacted after the date of the submission to Congress under subsection (c), the Secretary shall credit toward the non-Federal share of the cost of construction of the project or modification to the project an amount equal to the portion of the cost of developing the study that would have been the responsibility of the United States if the study had been developed by the Secretary.
Any credit provided to a non-Federal interest under this subsection may not exceed the Federal share of the cost for a feasibility study initiated by the Secretary under section 2282c(a) of this title.
(e) Review and technical assistance
The Secretary may accept and expend funds provided by non-Federal interests to undertake reviews, inspections, certifications, and other activities that are the responsibility of the Secretary in carrying out this section.
At the request of a non-Federal interest, the Secretary shall provide to the non-Federal interest technical assistance relating to any aspect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assistance.
Funds provided by non-Federal interests under this subsection shall not be eligible for credit under subsection (d) or reimbursement.
In carrying out this section, the Secretary shall ensure that the use of funds accepted from a non-Federal interest will not affect the impartial decisionmaking of the Secretary, either substantively or procedurally.
The provision of technical assistance by the Secretary under paragraph (2)—
(A) shall not be considered to be an approval or endorsement of the feasibility study; and
(B) shall not affect the responsibilities of the Secretary under subsections (b) and (c).
(f) Authorization of appropriations
There is authorized to be appropriated to the Secretary $1,000,000 for each fiscal year to carry out this section.

History

(Pub. L. 99–662, title II, §203, Nov. 17, 1986, 100 Stat. 4098; Pub. L. 113–121, title I, §1014(a), June 10, 2014, 128 Stat. 1219; Pub. L. 114–322, title I, §1126, Dec. 16, 2016, 130 Stat. 1648; Pub. L. 115–270, title I, §1152, Oct. 23, 2018, 132 Stat. 3788; Pub. L. 116–260, div. AA, title I, §161(a), Dec. 27, 2020, 134 Stat. 2665; Pub. L. 118–272, div. A, title I, §1109(a), Jan. 4, 2025, 138 Stat. 3007.)

Editorial Notes

Editorial Notes

References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (b)(2)(B), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§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.

Amendments
2025—Subsec. (a)(1)(A). Pub. L. 118–272, §1109(a)(1)(A)(i), substituted "may undertake and submit to the Secretary—
"(A) a federally authorized feasibility study of a proposed water resources development project; or" for "may undertake a federally authorized feasibility study of a proposed water resources development project, or,".
Subsec. (a)(1)(B). Pub. L. 118–272, §1109(a)(1)(A)(ii), (iii), substituted "(B) upon the determination" for "upon the written approval", struck out "undertake" before "a feasibility", and substituted "or constructed by a non-Federal interest pursuant to section 2232 of this title" for ", and submit the study to the Secretary".
Subsec. (a)(2). Pub. L. 118–272, §1109(a)(1)(B)(i), in introductory provisions, struck out ", as soon as practicable," after "Secretary" and substituted "non-Federal interests that" for "non-Federal interests to".
Subsec. (a)(2)(A). Pub. L. 118–272, §1109(a)(1)(B)(ii), added subpar. (A) and struck out former subpar. (A) which read as follows: "ensure that any feasibility study with respect to which the Secretary submits an assessment to Congress under subsection (c) complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and".
Subsec. (a)(2)(C), (D). Pub. L. 118–272, §1109(a)(1)(B)(iii), (iv), added subpars. (C) and (D).
Subsec. (a)(3). Pub. L. 118–272, §1109(a)(1)(C), added par. (3).
Subsec. (b)(3)(B). Pub. L. 118–272, §1109(a)(2)(A)(i), substituted "receives a study submission under subsection (a) or receives a request under subparagraph (A)" for "receives a request under this paragraph".
Subsec. (b)(3)(C). Pub. L. 118–272, §1109(a)(2)(A)(ii), added subpar. (C).
Subsec. (b)(4). Pub. L. 118–272, §1109(a)(2)(B), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: "Upon receipt of a request under paragraph (3), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate of the request and a timeline for completion of the required analyses, reviews, and compliance processes."
Subsec. (b)(5). Pub. L. 118–272, §1109(a)(2)(C), substituted "receiving a study submission under subsection (a) or a request under paragraph (3)(A)" for "receiving a request under paragraph (3)".
Subsec. (d). Pub. L. 118–272, §1109(a)(3), designated existing provisions as par. (1), inserted heading, substituted "of the project or modification to the project" for "of the project", and added par. (2).
Subsec. (f). Pub. L. 118–272, §1109(a)(4), added subsec. (f).
2020—Subsec. (a)(1). Pub. L. 116–260, §161(a)(1)(A), inserted ", or, upon the written approval of the Secretary that the modifications are consistent with the authorized purposes of the project, undertake a feasibility study on modifications to a water resources development project constructed by the Corps of Engineers," after "water resources development project".
Subsec. (a)(2). Pub. L. 116–260, §161(a)(1)(B), substituted "for the formulation of feasibility studies of water resources development projects undertaken by non-Federal interests to—" for "for feasibility studies of water resources development projects to provide sufficient information for the formulation of the studies." and added subpars. (A) and (B).
Subsec. (b). Pub. L. 116–260, §161(a)(2), designated existing provisions as par. (1), inserted heading, and added pars. (2) to (5).
Subsec. (c)(1). Pub. L. 116–260, §161(a)(3), in introductory provisions, substituted "after the completion of review of a feasibility study under subsection (b)" for "after the date of receipt of a feasibility study of a project under subsection (a)(1)" and "an assessment" for "a report".
2018—Subsec. (a)(1). Pub. L. 115–270, §1152(1), inserted "federally authorized" before "feasibility study".
Subsec. (c). Pub. L. 115–270, §1152(2), amended subsec. (c) generally. Prior to amendment, text read as follows: "Not later than 180 days after the date of receipt of a feasibility study of a project under subsection (a)(1), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes—
"(1) the results of the Secretary's review of the study under subsection (b), including a determination of whether the project is feasible;
"(2) any recommendations the Secretary may have concerning the plan or design of the project; and
"(3) any conditions the Secretary may require for construction of the project."
Subsec. (e). Pub. L. 115–270, §1152(3), amended subsec. (e) generally. Prior to amendment, text read as follows "At the request of a non-Federal interest, the Secretary may provide to the non-Federal interest technical assistance relating to any aspect of a feasibility study if the non-Federal interest contracts with the Secretary to pay all costs of providing such technical assistance.".
2016—Subsec. (e). Pub. L. 114–322 added subsec. (e).
2014—Pub. L. 113–121 amended section generally. Prior to amendment, section related to studies of projects by non-Federal interests.

Statutory Notes and Related Subsidiaries

Short Title
For short title of title II of Pub. L. 99–662, enacting this subchapter, as the Harbor Development and Navigation Improvement Act of 1986, see section 215 of Pub. L. 99–662, set out as a note under section 2201 of this title.

Guidance
Pub. L. 118–272, div. A, title I, §1109(b), Jan. 4, 2025, 138 Stat. 3009, provided that: "Not later than 18 months after the date of enactment of this Act [Jan. 4, 2025], the Secretary [of the Army] shall update any guidance as necessary to reflect the amendments made by this section [amending this section]."

Implementation
Pub. L. 118–272, div. A, title I, §1109(c), Jan. 4, 2025, 138 Stat. 3009, provided that: "Any non-Federal interest that has entered in a written agreement with the Secretary [of the Army] related to carrying out a feasibility study pursuant to section 203 of the Water Resources Development Act of 1986 (33 U.S.C. 2231) before the date of enactment of this Act [Jan. 4, 2025] may submit to the Secretary a request to amend such agreement to reflect the amendments made by this section [amending this section]."

Deadline
Pub. L. 116–260, div. AA, title I, §161(b), Dec. 27, 2020, 134 Stat. 2667, provided that: "Not later than 90 days after the date of enactment of this Act [Dec. 27, 2020], the Secretary [of the Army] shall issue revised guidelines under section 203 of the Water Resources Development Act of 1986 (33 U.S.C. 2231) to implement the amendments made by this section [amending this section]."

Hold Harmless
Pub. L. 116–260, div. AA, title I, §161(c), Dec. 27, 2020, 134 Stat. 2667, provided that:
"(1) One-year window.—The amendments made by this section [amending this section] shall not apply to any feasibility study submitted to the Secretary [of the Army] under section 203 of the Water Resources Development Act of 1986 (33 U.S.C. 2231) during the one-year period prior to the date of enactment of this section [Dec. 27, 2020].
"(2) 2020 projects.—The amendments made by this section shall not apply to any project authorized by section 403 of this Act [section 403 of div. AA of Pub. L. 116–260, 134 Stat. 2743, which is not classified to the Code]."