Rehabilitation of high hazard potential dams

33 U.S.C. § 467f–2

• Title: 33 — Navigation and Navigable Waters
• Chapter: 9 — PROTECTION OF NAVIGABLE WATERS AND OF HARBOR AND RIVER IMPROVEMENTS GENERALLY
• Subchapter: VII
• Current through: Pub. L. 119-99

Text

(a) Establishment of program
The Administrator shall establish, within FEMA, a program to provide technical, planning, design, and construction assistance in the form of grants to States with dam safety programs for rehabilitation of eligible high hazard potential dams.
(b) Eligible activities
A grant awarded under this section to a State may be used by the State to award grants to eligible subrecipients for—
(1) repair;
(2) removal; or
(3) any other structural or nonstructural measures to rehabilitate an eligible high hazard potential dam.
(c) Award of grants
(1) Application
(A) In general
A State interested in receiving a grant under this section may submit to the Administrator an application for the grant.
(B) Requirements
An application submitted to the Administrator under this section shall be submitted at such time, be in such form, and contain such information as the Administrator may prescribe by regulation.
(2) Grant
(A) In general
The Administrator may make a grant in accordance with this section for rehabilitation of eligible high hazard potential dams to a State that submits an application for the grant in accordance with the regulations prescribed by the Administrator.
(B) Grant agreement
The Administrator shall enter into a grant agreement with the State to establish the terms of the grant and the projects for which the grant is awarded, including the amount of the grant.
(C) Grant assurance
As part of a grant agreement under subparagraph (B), the Administrator shall require that each eligible subrecipient to which the State awards a grant under this section provides an assurance from the dam owner, with respect to the dam to be rehabilitated, that the dam owner will carry out a plan for maintenance of the dam during the expected life of the dam.
(D) Limitation
A State may not award a grant to an eligible subrecipient under this section that exceeds, for any 1 dam, the lesser of—
(i) 12.5 percent of the total amount of funds made available to carry out this section; or
(ii) $7,500,000.
(d) Requirements
(1) Approval
A grant awarded under this section to an eligible subrecipient for a project shall be approved by the relevant State dam safety agency.
(2) Eligible subrecipient requirements
To receive a grant under this section, an eligible subrecipient shall, with respect to the dam to be rehabilitated by the eligible subrecipient—
(A) demonstrate that the community in which the dam is located participates in, and complies with, all applicable Federal flood insurance programs, including demonstrating that such community is participating in the National Flood Insurance Program, and is not on probation, suspended, or withdrawn from such Program;
(B) beginning not later than 2 years after the date on which the Administrator publishes criteria for hazard mitigation plans under paragraph (3), demonstrate that the Tribal or local government with jurisdiction over the area in which the dam is located has in place a hazard mitigation plan that—
(i) includes all dam risks; and
(ii) complies with the Disaster Mitigation Act of 2000 (Public Law 106–390; 114 Stat. 1552);
(C) for a project not including removal, obtain a commitment from the dam owner to provide operation and maintenance of the project for the expected life of the dam following completion of rehabilitation;
(D) comply with such minimum eligibility requirements as the Administrator may establish to ensure that each owner and operator of a dam under a participating State dam safety program and that receives assistance under this section—
(i) acts in accordance with the State dam safety program; and
(ii) carries out activities relating to the public in the area around the dam in accordance with the hazard mitigation plan described in subparagraph (B); and
(E) comply with section 5196(j)(9) of title 42 (as in effect on December 16, 2016) with respect to projects receiving assistance under this section in the same manner as recipients are required to comply in order to receive financial contributions from the Administrator for emergency preparedness purposes.
(3) Hazard mitigation plan criteria
Not later than 1 year after December 27, 2020, the Administrator, in consultation with the Board, shall publish criteria for hazard mitigation plans required under paragraph (2)(B).
(e) Floodplain management plans
(1) In general
As a condition of receipt of assistance under this section, an eligible subrecipient shall demonstrate that a floodplain management plan to reduce the impacts of future flood events from a controlled or uncontrolled release from the dam or management of water levels in the area impacted by the dam—
(A) for a removal—
(i) is in place; and
(ii) identifies areas that would be impacted by the removal of the dam and includes a communication and outreach plan for the project and the impact of the project on the affected communities; or
(B) for a project not including removal—
(i) is in place; or
(ii) will be—
(I) developed not later than 2 years after the date of execution of a project agreement for assistance under this section; and
(II) implemented not later than 2 years after the date of completion of construction of the project.
(2) Requirement
In the case of a plan for a removal, the Administrator may not impose any additional requirements or conditions other than the requirements in paragraph (1)(A).
(3) Inclusions
A plan under paragraph (1)(B) shall address—
(A) potential measures, practices, and policies to reduce loss of life, injuries, damage to property and facilities, public expenditures, and other adverse impacts of flooding in the area protected or impacted by the dam;
(B) plans for flood fighting and evacuation; and
(C) public education and awareness of flood risks.
(4) Plan criteria and technical support
The Administrator, in consultation with the Board, shall provide criteria, and may provide technical support, for the development and implementation of floodplain management plans prepared under this subsection.
(f) Priority system
The Administrator, in consultation with the Board, shall develop a risk-based priority system for use in identifying eligible high hazard potential dams for which grants may be made under this section.
(g) Funding
(1) Cost sharing
(A) In general
Except as provided in subparagraph (C), any assistance provided under this section for a project shall be subject to a non-Federal cost-sharing requirement of not less than 35 percent.
(B) In-kind contributions
The non-Federal share under subparagraph (A) may be provided in the form of in-kind contributions.
(C) Underserved communities
Subparagraph (A) shall not apply to a project carried out by or for the benefit of an underserved community.
(2) Allocation of funds
The total amount of funds made available to carry out this section for each fiscal year shall be distributed as follows:
(A) Equal distribution
1/3 shall be distributed equally among the States in which the projects for which applications are submitted under subsection (c)(1) are located.
(B) Need-based
2/3 shall be distributed among the States in which the projects for which applications are submitted under subsection (c)(1) are located based on the proportion that—
(i) the number of eligible high hazard potential dams in the State; bears to
(ii) the number of eligible high hazard potential dams in all such States.
(h) Use of funds
None of the funds provided in the form of a grant or otherwise made available under this section shall be used—
(1) to rehabilitate a Federal dam;
(2) to perform routine operation or maintenance of a dam;
(3) to modify a dam to produce hydroelectric power;
(4) to increase water supply storage capacity; or
(5) to make any other modification to a dam that does not also improve the safety of the dam.
(i) Contractual requirements
(1) In general
Subject to paragraph (2), as a condition on the receipt of a grant under this section of an amount greater than $1,000,000, an eligible subrecipient that receives the grant shall require that each contract and subcontract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping, and related services entered into using funds from the grant be awarded in the same manner as a contract for architectural and engineering services is awarded under—
(A) chapter 11 of title 40; or
(B) an equivalent qualifications-based requirement prescribed by the relevant State.
(2) No proprietary interest
A contract awarded in accordance with paragraph (1) shall not be considered to confer a proprietary interest upon the United States.
(j) Authorization of appropriations
There are authorized to be appropriated to carry out this section—
(1) $10,000,000 for fiscal years 2017 and 2018;
(2) $25,000,000 for fiscal year 2019;
(3) $40,000,000 for fiscal year 2020; and
(4) $60,000,000 for each of fiscal years 2021 through 2026.

History

(Pub. L. 92–367, §8A, as added Pub. L. 114–322, title IV, §5006(b), Dec. 16, 2016, 130 Stat. 1893; amended Pub. L. 116–260, div. AA, title I, §132(b), Dec. 27, 2020, 134 Stat. 2645; Pub. L. 118–272, div. A, title I, §1132(c), Jan. 4, 2025, 138 Stat. 3022.)

Editorial Notes

Editorial Notes

References in Text
The Disaster Mitigation Act of 2000, referred to in subsec. (d)(2)(B)(ii), is Pub. L. 106–390, Oct. 30, 2000, 114 Stat. 1552. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 5121 of Title 42, The Public Health and Welfare, and Tables.

Amendments
2025—Subsec. (c)(2)(C). Pub. L. 118–272, §1132(c)(1), added subpar. (C) and struck out former subpar. (C). Prior to amendment, text read as follows: "As part of a grant agreement under subparagraph (B), the Administrator shall require that each eligible subrecipient to which the State awards a grant under this section provides an assurance, with respect to the dam to be rehabilitated by the eligible subrecipient, that the dam owner will carry out a plan for maintenance of the dam during the expected life of the dam."
Subsec. (d)(2)(C). Pub. L. 118–272, §1132(c)(2), substituted "for a project not including removal, obtain a commitment from the dam owner" for "commit".
Subsec. (e). Pub. L. 118–272, §1132(c)(3), added subsec. (e) and struck out former subsec. (e) which related to floodplain management plans to reduce impacts of future flood events in areas protected by projects.
Subsec. (g)(1)(A). Pub. L. 118–272, §1132(c)(4)(A), substituted "Except as provided in subparagraph (C), any" for "Any".
Subsec. (g)(1)(C). Pub. L. 118–272, §1132(c)(4)(B), added subpar. (C).
2020—Subsec. (a). Pub. L. 116–260, §132(b)(1), substituted "to States with dam safety programs" for "to non-Federal sponsors".
Subsec. (b). Pub. L. 116–260, §132(b)(2), substituted "to a State may be used by the State to award grants to eligible subrecipients for" for "a project may be used for" in introductory provisions.
Subsec. (c)(1)(A). Pub. L. 116–260, §132(b)(3)(A), substituted "State" for "non-Federal sponsor".
Subsec. (c)(2)(A). Pub. L. 116–260, §132(b)(3)(B)(i), substituted "eligible high hazard potential dams to a State" for "an eligible high hazard potential dam to a non-Federal sponsor".
Subsec. (c)(2)(B). Pub. L. 116–260, §132(b)(3)(B)(ii), in heading, substituted "Grant" for "Project grant" and, in text, substituted "grant agreement with the State" for "project grant agreement with the non-Federal sponsor" and "projects for which the grant is awarded," for "project,".
Subsec. (c)(2)(C). Pub. L. 116–260, §132(b)(3)(B)(iii), amended subpar. (C) generally. Prior to amendment, text read as follows: "As part of a project grant agreement under subparagraph (B), the Administrator shall require the non-Federal sponsor to provide an assurance, with respect to the dam to be rehabilitated under the project, that the owner of the dam has developed and will carry out a plan for maintenance of the dam during the expected life of the dam."
Subsec. (c)(2)(D). Pub. L. 116–260, §132(b)(3)(B)(iv), substituted "A State may not award a grant to an eligible subrecipient under this section that exceeds, for any 1 dam," for "A grant provided under this section shall not exceed" in introductory provisions.
Subsec. (d)(1). Pub. L. 116–260, §132(b)(4)(A), inserted "to an eligible subrecipient" after "this section".
Subsec. (d)(2). Pub. L. 116–260, §132(b)(4)(B)(i), (ii), substituted "Eligible subrecipient" for "Non-Federal sponsor" in heading and "an eligible subrecipient shall, with respect to the dam to be rehabilitated by the eligible subrecipient" for "the non-Federal sponsor shall" in introductory provisions.
Subsec. (d)(2)(A). Pub. L. 116–260, §132(b)(4)(B)(iii), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "participate in, and comply with, all applicable Federal flood insurance programs;".
Subsec. (d)(2)(B). Pub. L. 116–260, §132(b)(4)(B)(iv), substituted "beginning not later than 2 years after the date on which the Administrator publishes criteria for hazard mitigation plans under paragraph (3), demonstrate that the Tribal or local government with jurisdiction over the area in which the dam is located has" for "have" in introductory provisions.
Subsec. (d)(2)(C). Pub. L. 116–260, §132(b)(4)(B)(v), substituted "expected life of the dam" for "50-year period".
Subsec. (d)(3). Pub. L. 116–260, §132(b)(4)(C), added par. (3).
Subsec. (e)(1). Pub. L. 116–260, §132(b)(5)(A)(i), substituted "an eligible subrecipient" for "non-Federal sponsor" in introductory provisions.
Subsec. (e)(1)(B). Pub. L. 116–260, §132(b)(5)(A)(ii), substituted "2 years" for "1 year" in cls. (i) and (ii).
Subsec. (e)(3). Pub. L. 116–260, §132(b)(5)(B), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: "The Administrator may provide technical support for the development and implementation of floodplain management plans prepared under this subsection."
Subsec. (i)(1). Pub. L. 116–260, §132(b)(6), substituted "an eligible subrecipient" for "a non-Federal sponsor" in introductory provisions.

Statutory Notes and Related Subsidiaries

Rulemaking
Pub. L. 114–322, title IV, §5006(c), Dec. 16, 2016, 130 Stat. 1896, provided that:
"(1) Proposed rulemaking.—Not later than 90 days after the date of enactment of this Act [Dec. 16, 2016], the Administrator of the Federal Emergency Management Agency shall issue a notice of proposed rulemaking regarding applications for grants of assistance under the amendments made by subsection (b) to the National Dam Safety Program Act (33 U.S.C. 467 et seq.) [enacting this section].
"(2) Final rule.—Not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Emergency Management Agency shall promulgate a final rule regarding the amendments described in paragraph (1)."

Rehabilitation of Corps of Engineers Constructed Dams
Pub. L. 114–322, title I, §1177, Dec. 16, 2016, 130 Stat. 1674, as amended by Pub. L. 115–270, title I, §1132, Oct. 23, 2018, 132 Stat. 3781; Pub. L. 116–260, div. AA, title III, §305, Dec. 27, 2020, 134 Stat. 2703; Pub. L. 117–263, div. H, title LXXXI, §8370, Dec. 23, 2022, 136 Stat. 3806; Pub. L. 118–272, div. A, title III, §1367, Jan. 4, 2025, 138 Stat. 3164, provided that:
"(a) In General.—If the Secretary [of the Army] determines that the project is feasible, the Secretary may carry out a project for the rehabilitation of a dam described in subsection (b).
"(b) Eligible Dams.—A dam eligible for assistance under this section is a dam—
"(1) that has been constructed, in whole or in part, by the Corps of Engineers for flood control purposes;
"(2) for which construction was completed before 1940;
"(3) that is classified as 'high hazard potential' by the State dam safety agency of the State in which the dam is located; and
"(4) that is operated by a non-Federal entity.
"(c) Cost Sharing.—The non-Federal share of the cost of a project for rehabilitation of a dam under this section, including the cost of any required study, shall be the same share assigned to the non-Federal interest for the cost of initial construction of that dam, including provision of all land, easements, rights-of-way, and necessary relocations.
"(d) Agreements.—Construction of a project under this section shall be initiated only after a non-Federal interest has entered into a binding agreement with the Secretary [of the Army]—
"(1) to pay the non-Federal share of the costs of construction under subsection (c); and
"(2) to pay 100 percent of any operation, maintenance, and replacement and rehabilitation costs with respect to the project in accordance with regulations prescribed by the Secretary.
"(e) Cost Limitation.—
"(1) In general.—Except as provided in paragraph (2), the Secretary shall not expend more than $60,000,000 for a project at any single dam under this section.
"(2) Exception.—For a project under this section for which the Federal share of the costs is expected to exceed $60,000,000, the Secretary may expend more than such amount only if—
"(A) the Secretary submits to Congress the determination made under subsection (a) with respect to the project; and
"(B) construction of the project substantially in accordance with the plans, and subject to the conditions described in such determination, is specifically authorized by Congress.
"(f) Funding.—There is authorized to be appropriated to carry out this section $60,000,000 for each of fiscal years 2026 through 2030."