42 U.S.C. § 1962d–5b — Written agreement requirement for water resources projects

(a)(1) After December 31, 1970, construction of a water-resources project^* or an acceptable separable element may not begin if it is being done by the Secretary^* through the Chief of Engineers, or by a non-Federal interest that will be reimbursed, until each non-Federal interest signs a written partnership agreement with the Secretary or, when appropriate, the district engineer. Each party must agree to perform its responsibilities and requirements for implementing or constructing the project or element. No agreement is required if the Secretary finds that negotiating, signing, and administering it would cost more than the non-Federal contribution and would cost less than $25,000. (2) The agreement may require liquidated damages if one or more parties fail to perform. (3) An agreement with a State^*, a State-created political body, or an entity created by the State legislature may say that it does not obligate future appropriations when such an obligation would conflict with constitutional or statutory limits. (4)(A) The agreement may credit toward the non-Federal share the value of in-kind contributions for a project, including an unauthorized project or an environmental-infrastructure assistance project. Credit may include planning and data collection, design, management, mitigation, construction, and construction services supplied by the non-Federal interest; materials or services supplied before the agreement, including work on constructed elements incorporated into the project; and materials or services supplied after the agreement. (B) The Secretary may give this credit only if the material or service is integral to the project. (C)(i)(I) If a non-Federal interest is to receive credit for construction done before the partnership agreement, and that construction was not done by November 8, 2007, the Secretary and the non-Federal interest must sign an agreement requiring the non-Federal interest to do the work before starting construction or issuing a written notice to proceed. (II) Construction done after that agreement, and design work required for it, qualifies for credit even if the design work occurred before the agreement. (ii)(I) If the non-Federal interest is to receive credit for planning done before a feasibility cost-sharing^* agreement, the parties must sign an agreement requiring the non-Federal interest to do the planning before starting it. (II) Planning done after that agreement qualifies for credit. (D) Credit may not exceed the non-Federal share of project cost; change requirements to provide land, easements, relocations, rights-of-way, or dredged-material disposal areas; change requirements to pay construction costs under 33 U.S.C. §§ 2211(a)(2) and 2213(a)(1)(A); or exceed the actual, reasonable value of what the non-Federal interest supplied, as determined by the Secretary. (E) In evaluating costs and benefits, the Secretary may not treat construction done under this subsection as part of the future condition without the project. (F) Excess credit for an authorized separable element may be applied to the non-Federal share of another authorized separable element of the same project. (G)(i) If in-kind credit, plus credit for required land, easements, rights-of-way, disposal areas, and relocations, exceeds the non-Federal share of construction cost for a non-navigation project, the Secretary must, subject to available funds, sign an additional reimbursement agreement to pay the difference. (ii) If funds cannot cover all requested agreements, requests are handled in the order received. (H)(i) This paragraph applies to projects authorized after November 16, 1986, including projects begun after that date without specific authorization, and to earlier projects when design deficiencies must be corrected. (ii) This credit authority supplements other credit authority and does not limit it. The Secretary uses this paragraph instead of another credit authority only when the non-Federal interest asks. (b) “Non-Federal interest” means a legally formed public body, including an Indian tribe, tribal organization, or inter-tribal consortium^* as defined in the cited provisions, or a nonprofit entity that has the affected local government’s consent and has full authority and ability to perform its agreement and pay damages if needed. (c) Every agreement under this section may be enforced in the appropriate United States district court. (d) After construction starts, the Chief of Engineers may perform cooperation items needed for the project to function if he first tells the non-Federal interest that it failed to perform and gives it a reasonable time to perform. (e) By June 30, 2008, the Secretary must issue policies and guidelines delegating to district engineers, at a minimum, authority to approve policies previously approved by the Secretary; approve policies dictated by law or a final feasibility study, environmental impact statement, or other final decision document; approve agreements complying with the policies and guidelines; and sign agreements unless the Secretary tells the district engineer within 30 days after project authorization that the Secretary will retain the authority to sign. (f) Within two years after November 8, 2007, and each year afterward, the Secretary must report to Congress the number of agreements signed by district engineers and by the Secretary, and, for each Secretary-signed agreement, why delegation was not appropriate. (g) Within 120 days after November 8, 2007, the Chief must ensure that each district engineer makes public, including online, all agreements from the prior 10 years and all agreements for projects then being carried out in that district. Each agreement signed after November 8, 2007, must be made public, including online, within seven days after signing. (h) This section does not apply to a project whose construction began before January 1, 1972, or to assurances for future demands required by the amended Water Supply Act of 1958, 43 U.S.C. § 390b.