
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-541 Section 201]
[CITE: 42USC1962d-5b]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                  CHAPTER 19B--WATER RESOURCES PLANNING
 
                 SUBCHAPTER IV--MISCELLANEOUS PROVISIONS
 
Sec. 1962d-5b. Water resources projects; written agreement 
        requirement
        

(a) Cooperation of non-Federal interest

    After December 31, 1970, the construction of any water resources 
project, or an acceptable separable element thereof, by the Secretary of 
the Army, acting through the Chief of Engineers, or by a non-Federal 
interest where such interest will be reimbursed for such construction 
under the provisions of section 1962d-5a of this title or under any 
other provision of law, shall not be commenced until each non-Federal 
interest has entered into a written agreement with the Secretary of the 
Army to furnish its required cooperation for the project or the 
appropriate element of the project, as the case may be; except that no 
such agreement shall be required if the Secretary determines that the 
administrative costs associated with negotiating, executing, or 
administering the agreement would exceed the amount of the contribution 
required from the non-Federal interest and are less than $25,000. In any 
such agreement entered into by a State, or a body politic of the State 
which derives its powers from the State constitution, or a governmental 
entity created by the State legislature, the agreement may reflect that 
it does not obligate future State legislative appropriations for such 
performance and payment when obligating future appropriations would be 
inconsistent with State constitutional or statutory limitations.

(b) Definition of non-Federal interest

    A non-Federal interest shall be a legally constituted public body 
with full authority and capability to perform the terms of its agreement 
and to pay damages, if necessary, in the event of failure to perform.

(c) Enforcement; jurisdiction

    Every agreement entered into pursuant to this section shall be 
enforcible in the appropriate district court of the United States.

(d) Nonperformance of terms of agreement by non-Federal interest; 
        notice; reasonable opportunity for performance; performance by 
        Chief of Engineers

    After commencement of construction of a project, the Chief of 
Engineers may undertake performance of those items of cooperation 
necessary to the functioning of the project for its purposes, if he has 
first notified the non-Federal interest of its failure to perform the 
terms of its agreement and has given such interest a reasonable time 
after such notification to so perform.

(e) Effective date

    This section shall not apply to any project the construction of 
which was commenced before January 1, 1972, or to the assurances for 
future demands required by the Water Supply Act of 1958, as amended [43 
U.S.C. 390b].

(Pub. L. 91-611, title II, Sec. 221, Dec. 31, 1970, 84 Stat. 1831; Pub. 
L. 92-222, Sec. 4, Dec. 23, 1971, 85 Stat. 799; Pub. L. 99-662, title 
IX, Sec. 912(a), Nov. 17, 1986, 100 Stat. 4189; Pub. L. 104-106, div. A, 
title X, Sec. 1064(d), Feb. 10, 1996, 110 Stat. 445; Pub. L. 104-303, 
title II, Sec. 220, Oct. 12, 1996, 110 Stat. 3696.)

                       References in Text

    The Water Supply Act of 1958, as amended, referred to in subsec. 
(e), is Pub. L. 85-500, title III, Sec. 301, July 3, 1958, 72 Stat. 319, 
as amended, which is classified to section 390b of Title 43, Public 
Lands.

                          Codification

    Section was enacted as part of the Flood Control Act of 1970, and 
not as part of the Water Resources Planning Act which comprises this 
chapter.


                               Amendments

    1996--Subsec. (a). Pub. L. 104-303, in first sentence, inserted 
before period at end ``; except that no such agreement shall be required 
if the Secretary determines that the administrative costs associated 
with negotiating, executing, or administering the agreement would exceed 
the amount of the contribution required from the non-Federal interest 
and are less than $25,000''.
    Subsecs. (e), (f). Pub. L. 104-106 redesignated subsec. (f) as (e) 
and struck out former subsec. (e) which read as follows: ``The Secretary 
of the Army, acting through the Chief of Engineers, shall maintain a 
continuing inventory of agreements and the status of their performance, 
and shall report thereon annually to the Congress.''
    1986--Subsec. (a). Pub. L. 99-662 inserted ``, or an acceptable 
separable element thereof,'', ``or the appropriate element of the 
project, as the case may be'', and ``In any such agreement entered into 
by a State, or a body politic of the State which derives its powers from 
the State constitution, or a governmental entity created by the State 
legislature, the agreement may reflect that it does not obligate future 
State legislative appropriations for such performance and payment when 
obligating future appropriations would be inconsistent with State 
constitutional or statutory limitations.''
    1971--Subsec. (f). Pub. L. 92-222 made provisions of section 
inapplicable to the assurances for future demands required by the Water 
Supply Act of 1958, as amended.


 Compliance With Cooperation Requirements for Non-Federal Interests in 
                        Water Resources Projects

    Section 912(b) of Pub. L. 99-662 provided that:
    ``(1) The Secretary may require compliance with any requirements 
pertaining to cooperation by non-Federal interests in carrying out any 
water resources project authorized before, on, or after the date of 
enactment of this Act [Nov. 17, 1986].
    ``(2) Whenever on the basis of any information available to the 
Secretary, the Secretary finds that any non-Federal interest is not 
providing cooperation required under subsection (a) [amending this 
section], the Secretary shall issue an order requiring such non-Federal 
interest to provide such cooperation. After notice and opportunity for a 
hearing, if the Secretary finds that any person is violating an order 
issued under this section [amending this section], such person shall be 
subject to a civil penalty not to exceed $10,000 per day of such 
violation, except that the total amount of civil penalties for any 
violation shall not exceed $50,000.
    ``(3) Non-Federal interests shall be liable for interest on any 
payments required pursuant to section 221 of the Flood Control Act of 
1970 [this section] that may fall delinquent. The interest rate to be 
charged on any such delinquent payment shall be at a rate, to be 
determined by the Secretary of the Treasury, equal to 150 percent of the 
average bond equivalent rate of the thirteen-week Treasury bills 
auctioned immediately prior to the date on which such payment became 
delinquent, or auctioned immediately prior to the beginning of each 
additional three-month period if the period of delinquency exceeds three 
months.
    ``(4) The Secretary may request the Attorney General to bring a 
civil action for appropriate relief, including permanent or temporary 
injunction, for any violation of an order issued under this section, to 
collect a civil penalty imposed under this section, to recover any cost 
incurred by the Secretary in undertaking performance of any item of 
cooperation under section 221(d) of the Flood Control Act of 1970 
[subsec. (d) of this section], or to collect interest for which a non-
Federal interest is liable under paragraph (3). Any action under this 
subsection may be brought in the district court of the United States for 
the district in which the defendant is located or resides, or is doing 
business, and such court shall have jurisdiction to restrain such 
violation, to require compliance, to require payment of any civil 
penalty imposed under this section, and to require payment of any costs 
incurred by the Secretary in undertaking performance of any such item.
    ``(5) The Secretary is authorized to determine that no funds 
appropriated for operation and maintenance, including operation and 
maintenance of the project for flood control, Mississippi River and 
Tributaries, are to be used for the particular benefit of projects 
within the jurisdiction of any non-Federal interest when such non-
Federal interest is in arrears for more than twenty-four months in the 
payment of charges due under an agreement entered into with the United 
States pursuant to section 221 of the Flood Control Act of 1970 (Public 
Law 91-611) [this section].''

                  Section Referred to in Other Sections

    This section is referred to in title 33 sections 2211, 2213, 2241, 
2326, 2330.
