Sec. 1018. CREDIT FOR IN-KIND CONTRIBUTIONS
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## SEC. 1018 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 November 8, 2007, the Secretary and the non-Federal interest shall enter into an agreement under which the non-Federal interest shall carry out such work and shall do so 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 and shall do so 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 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. > > > ##### “(G) Application of credit > > > ###### “(i) In general > > 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, subject to the availability of funds, shall enter into a reimbursement agreement with the non-Federal interest, which shall be in addition to a partnership agreement under subparagraph (A), to reimburse the difference to the non-Federal interest. > > > ###### “(ii) Priority > > If appropriated funds are insufficient to cover the full cost of all requested reimbursement agreements under clause (i), the Secretary shall enter into reimbursement agreements in the order in which requests for such agreements are received.” > ; 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 as addition to other authorizations > > The authority of the Secretary to provide credit for in-kind contributions pursuant to this paragraph shall be in addition to any other authorization to provide credit for in-kind contributions and shall not be construed as a limitation on such other authorization. The Secretary shall apply the provisions of this paragraph, in lieu of provisions under other crediting authority, only if so requested by the non-Federal interest.” > . ###
(b)Applicability Section 2003(e) of the Water Resources Development Act of 2007 (42 U.S.C. 1962d-5b note) is amended— ####
(1)by inserting “, or construction of design deficiency corrections on the project,” after “construction on the project”; and ####
(2)by inserting “, or under which construction of the project has not been completed and the work to be performed by the non-Federal interests has not been carried out and is creditable only toward any remaining non-Federal cost share,” after “has not been initiated”. ###
(c)Effective Date The amendments made by subsections
(a)and
(b)take effect on November 8, 2007. ###
(d)Guidelines **[**[42 U.S.C. 1962d-5](/us/usc/t42/s1962d-5)**]** ####
(1)In general Not later than 1 year after the date of enactment of this Act, the Secretary 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)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.
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- Pub. L. 99-662
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Sec. 1018
CREDIT FOR IN-KIND CONTRIBUTIONS
Pub. L.Pub. L. 99-662
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