Transfer of excess work-in-kind credit

(a)

In general

Subject to subsection (b), the Secretary of the Army may apply credit for in-kind contributions provided by a non-Federal interest that is in excess of the required non-Federal cost-share for a water resources study or project, including credit for in-kind contributions provided to accelerate completion of a water resources study or project, toward the required non-Federal cost-share for a different water resources study or project. (b)

Restrictions

(1)

In general

Except for subsection (a)(4)(D)(i) of that section, the requirements of section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b) (as amended by section 3 of this Act) shall apply to any credit under this section. (2)

Conditions

Credit in excess of the non-Federal cost-share for a study or project may be approved under this section only if— (A)the non-Federal interest submits a comprehensive plan to the Secretary that identifies— (i)the studies and projects for which the non-Federal interest intends to provide in-kind contributions for credit that is in excess of the non-Federal cost share for the study or project; and (ii)the studies and projects to which that excess credit would be applied; (B)the Secretary approves the comprehensive plan; and (C)the total amount of credit does not exceed the total non-Federal cost-share for the studies and projects in the approved comprehensive plan. (c)

Additional criteria

In evaluating a request to apply credit in excess of the non-Federal cost-share for a study or project toward a different study or project, the Secretary shall consider whether applying that credit will— (1)help to expedite the completion of a project or group of projects; (2)reduce costs to the Federal Government; and (3)aid the completion of a project that provides significant flood risk reduction or environmental benefits. (d)

Report

(1)

Deadlines

(A)

In general

Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate an interim report on the use of the authority under this section. (B)

Final report

Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a final report on the use of the authority under this section. (2)

Inclusions

The reports described in paragraph (1) shall include— (A)a description of the use of the authority under this section during the reporting period; (B)an assessment of the impact of the authority under this section on the time required to complete projects; and (C)an assessment of the impact of the authority under this section on other water resources projects.

Credit for in-kind contributions

(a)

In general

Section 221(a)(4) of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b(a)(4)) is amended— (1)in subparagraph (A), in the matter preceding clause (i) by inserting or a project under an environmental infrastructure assistance program after law; (2)in subparagraph (C), by striking In any case and all that follows through the period at the end and inserting the following:

(i)

Construction

(I)

In general

In any case in which the non-Federal interest is to receive credit under subparagraph (A) for the cost of construction carried out by the non-Federal interest before execution of a partnership agreement and that construction has not been carried out as of the date of enactment of this subparagraph, the Secretary and the non-Federal interest shall enter into an agreement under which the non-Federal interest shall carry out such work prior to the non-Federal interest initiating construction or issuing a written notice to proceed for the construction. (II)

Eligibility

Construction that is carried out after the execution of an agreement to carry out work described in subclause (I) and any design activities that are required for that construction, even if the design activity is carried out prior to the execution of the agreement to carry out work, shall be eligible for credit. (ii)

Planning

(I)

In general

In any case in which the non-Federal interest is to receive credit under subparagraph (A) for the cost of planning carried out by the non-Federal interest before execution of a feasibility cost sharing agreement, the Secretary and the non-Federal interest shall enter into an agreement under which the non-Federal interest shall carry out such work prior to the non-Federal interest initiating that planning. (II)

Eligibility

Planning that is carried out by the non-Federal interest after the execution of an agreement to carry out work described in subclause (I) shall be eligible for credit.

;

(3)in subparagraph (D)(iii), by striking sections 101 and 103 and inserting sections 101(a)(2) and 103(a)(1)(A) of the Water Resources Development Act of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C. 2213(a)(1)(A)); (4)by redesignating subparagraph (E) as subparagraph (H); (5)by inserting after subparagraph (D) the following:

(E)

Analysis of costs and benefits

In the evaluation of the costs and benefits of a project, the Secretary shall not consider construction carried out by a non-Federal interest under this subsection as part of the future without project condition. (F)

Transfer of Credit between Separable Elements of a Project

Credit for in-kind contributions provided by a non-Federal interest, under this section or section 104 of the Water Resources Development Act of 1986 (33 U.S.C. 2214), that are in excess of the non-Federal cost share for an authorized separable element of a project may be applied toward the non-Federal cost share for a different authorized separable element of the same project or toward another authorized project, within the same watershed, for which the non-Federal interest has a cost share responsibility. (G)

Application of Credit

To the extent that credit for in-kind contributions, as limited by subparagraph (D), and credit for required land, easements, rights-of-way, dredged material disposal areas, and relocations provided by the non-Federal interest exceed the non-Federal share of the cost of construction of a project other than a navigation project, the Secretary shall reimburse the difference to the non-Federal interest, subject to the availability of funds.

; and

(6)in subparagraph (H) (as redesignated by paragraph (4))— (A)in clause (i), by inserting , and to water resources projects authorized prior to the date of enactment of the Water Resources Development Act of 1986 (Public Law 99–662), if correction of design deficiencies is necessary before the period at the end; and (B)by striking clause (ii) and inserting the following:

(ii)

Authorization in addition to specific credit provision

In any case in which a specific provision of law authorizes credit for in-kind contributions provided by a non-Federal interest before the date of execution of a partnership agreement, the Secretary may apply the authority provided in this paragraph to allow credit for in-kind contributions provided by the non-Federal interest on or after the date of execution of the partnership agreement.

(b)

Applicability

Section 2003(e) of the Water Resources Development Act of 2007 (42 U.S.C. 1962d–5b note) is amended by inserting , or construction of design deficiency corrections on the project, after construction on the project. (c)

Effective date

The amendments made by subsections (a) and (b) take effect on November 8, 2007. (d)

Guidelines

(1)

In general

Not later than 1 year after the date of enactment of this Act, the Secretary of the Army shall update any guidance or regulations for carrying out section 221(a)(4) of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b(a)(4)) (as amended by subsection (a)) that are in existence on the date of enactment of this Act or issue new guidelines, as determined to be appropriate by the Secretary. (2)

Inclusions

Any guidance, regulations, or guidelines updated or issued under paragraph (1) shall include, at a minimum— (A)the milestone for executing an in-kind memorandum of understanding for construction by a non-Federal interest; (B)criteria and procedures for evaluating a request to execute an in-kind memorandum of understanding for construction by a non-Federal interest that is earlier than the milestone under subparagraph (A) for that execution; and (C)criteria and procedures for determining whether work carried out by a non-Federal interest is integral to a project. (3)

Public and stakeholder participation

Before issuing any new or revised guidance, regulations, or guidelines or any subsequent updates to those documents, the Secretary shall— (A)consult with affected non-Federal interests; (B)publish the proposed guidelines developed under this subsection in the Federal Register; and (C)provide the public with an opportunity to comment on the proposed guidelines. (e)

Interim period

During the period beginning on the date of enactment of this Act and ending on the date on which guidance, regulations, or guidelines are updated or issued under subsection (d), the Secretary shall process credit under section 104 of the Water Resources Development Act of 1986 (33 U.S.C. 2214), upon request of a non-Federal interest, if— (1)the applicable non-Federal work meets the requirements for credit under section 104; and (2)the applicable non-Federal work does not meet the requirements for credit under existing guidelines for section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b). (f)

Availability of credit

Credit for in-kind contributions authorized under section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b) or section 104 of the Water Resources Development Act of 1986 (33 U.S.C. 2214) shall be available for work performed by a non-Federal interest on any separable element of a project following the identification by the Secretary of project alternatives as part of a feasibility study or a general or limited reevaluation report. (g)

Other credit

Nothing in section 221(a)(4) of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b(a)(4)) (as amended by subsection (a)) affects any eligibility for credit under section 104 of the Water Resources Development of 1986 (33 U.S.C. 2214) that was approved by the Secretary prior to the date of enactment of this Act.