33 U.S. Code § 2269 - Tribal partnership program

(a) Definitions

In this section:

(1) Indian tribe

The terms “Indian tribe” and “Indian Tribe” have the meanings given the terms “Indian tribe” has the meaning given the term [1] in section 5304 of title 25.

(2) Inter-tribal consortium

The term “inter-tribal consortium” has the meaning given the term in section 3202 of title 25.

(3) Tribal organization

The term “Tribal organization” has the meaning given the term in section 5304 of title 25.

(b) Program

(1) In general

In cooperation with Indian tribes, inter-tribal consortiums, Tribal organizations, and the heads of other Federal agencies, the Secretary may carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects, that—

(A) will substantially benefit Indian tribes, inter-tribal consortiums, or Tribal organizations; and

(B) are located primarily within Indian country (as defined in section 1151 of title 18, and including lands that are within the jurisdictional area of an Oklahoma Indian tribe, as determined by the Secretary of the Interior, and are recognized by the Secretary of the Interior as eligible for trust land status under part 151 of title 25, Code of Federal Regulations) or in proximity to Alaska Native villages.

(2) Authorized activities

An activity conducted under paragraph (1) may address—

(A) projects for flood or hurricane and storm damage reduction, including erosion control and stormwater management (including management of stormwater that flows at a rate of less than 800 cubic feet per second for the 10-percent flood), environmental restoration and protection, and preservation of cultural and natural resources;

(B) watershed assessments and planning activities;

(C) technical assistance to an Indian Tribe, an inter-tribal consortium, or a Tribal organization, including—

(i) assistance for planning to ameliorate flood hazards, to avoid repetitive flood impacts, to anticipate, prepare, and adapt to changing hydrological and climatic conditions and extreme weather events, and to withstand, respond to, and recover rapidly from disruption due to flood hazards; and

(ii) the provision of, and integration into planning of, hydrologic, economic, and environmental data and analyses;

(D) projects that improve emergency response capabilities and provide increased access to infrastructure that may be utilized in the event of a severe weather event or other natural disaster; and

(E) such other projects as the Secretary, in cooperation with Indian Tribes, inter-tribal consortiums, Tribal organizations, and the heads of other Federal agencies, determines to be appropriate.

(3) Feasibility study and reports

(A) In general

On the request of an Indian tribe, an inter-tribal consortium, or a Tribal organization, the Secretary shall conduct a study on, and provide to the Indian tribe, inter-tribal consortium, or Tribal organization a report describing, the feasibility of a water resources development project described in paragraph (1).

(B) Recommendation

A report under subparagraph (A) may, but shall not be required to, contain a recommendation on a specific water resources development project.

(C) Initial costs

The first $200,000 of the costs of a study under this section shall be at Federal expense.

(4) Design and construction

(A) In general

The Secretary may carry out the design and construction of a water resources development project, or separable element of a project, described in paragraph (1) that the Secretary determines is feasible if the Federal share of the cost of the project or separable element is not more than $28,500,000.

(B) Specific authorization

If the Federal share of the cost of the project or separable element described in subparagraph (A) is more than $26,000,000, the Secretary may only carry out the project or separable element if Congress enacts a law authorizing the Secretary to carry out the project or separable element.

(5) Project justification

Notwithstanding any requirement for economic justification established under section 1962–2 of title 42, the Secretary may implement a project (other than a project for ecosystem restoration) under this section if the Secretary determines that the project will—

(A) significantly reduce potential flood or hurricane and storm damage hazards (which may be limited to hazards that may be addressed by measures for erosion mitigation or bank stabilization);

(B) improve the quality of the environment;

(C) reduce risks to life safety associated with the hazards described in subparagraph (A); and

(D) improve the long-term viability of the community.

(c) Consultation and coordination with Secretary of the Interior

(1) In general

In recognition of the unique role of the Secretary of the Interior concerning trust responsibilities with Indian tribes and in recognition of mutual trust responsibilities, the Secretary shall consult with the Secretary of the Interior concerning an activity conducted under subsection (b).

(2) Integration of activities

The Secretary shall—

(A) integrate civil works activities of the Department of the Army with activities of the Department of the Interior to avoid conflicts, duplications of effort, or unanticipated adverse effects on Indian tribes; and

(B) consider the authorities and programs of the Department of the Interior and other Federal agencies in any recommendations concerning an activity conducted under subsection (b).

(d) Cost sharing

(1) Ability to pay

(A) In general

Any cost-sharing agreement for an activity conducted under subsection (b) shall be subject to the ability of the non-Federal interest to pay.

(B) Use of procedures

(i) In general

The ability of a non-Federal interest to pay shall be determined by the Secretary in accordance with procedures established by the Secretary.

(ii) Determination

Not later than 180 days after June 10, 2014, the Secretary shall issue guidance on the procedures described in clause (i).

(2) Credit

The Secretary may credit toward the non-Federal share of the costs of an activity conducted under subsection (b) the cost of services, studies, supplies, or other in-kind contributions provided by the non-Federal interest.

(3) Sovereign immunity

The Secretary shall not require an Indian tribe to waive the sovereign immunity of the Indian tribe as a condition to entering into a cost-sharing agreement under this subsection.

(4) Water resources development projects

(A) In general

The non-Federal share of costs for the study of a water resources development project described in subsection (b)(1) shall be 50 percent.

(B) Other costs

The non-Federal share of costs of design and construction of a project described in subparagraph (A) shall be assigned to the appropriate project purposes described in sections 2211 and 2213 of this title and shared in the same percentages as the purposes to which the costs are assigned.

(5) Water-related planning activities

(A) In general

The non-Federal share of costs of a watershed and river basin assessment conducted under subsection (b) shall be 25 percent.

(B) Other costs

The Federal share of costs of other water-related planning activities described in subsection (b)(1) shall be 100 percent.

(6) Technical assistance

The Federal share of the cost of activities described in subsection (b)(2)(C) shall be 100 percent.

(7) Congressional notification

(A) In general

The Secretary shall annually submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives written notification of determinations made by the Secretary of the ability of non-Federal interests to pay under this subsection.

(B) Contents

In preparing the written notification under subparagraph (A), the Secretary shall include, for each determination made by the Secretary—

(i) the name of the non-Federal interest that submitted to the Secretary a request for a determination under paragraph (1)(B);

(ii) the name and location of the project; and

(iii) the determination made by the Secretary and the reasons for the determination, including the adjusted share of the costs of the project of the non-Federal interest, if applicable.

(e) Pilot program

(1) In general

The Secretary shall establish a pilot program to carry out water-related planning activities or activities relating to the study, design, and construction of water resources development projects that otherwise meet the requirements of this section.

(2) Project selection

The Secretary shall carry out not more than 7 activities or projects under the pilot program described in paragraph (1), of which—

(A) one is located along the Mid-Columbia River, Washington, Tancum Creek, Washington, or Similk Bay, Washington;

(B) one is located at Big Bend, Lake Oahe, Fort Randall, or Gavins Point reservoirs, South Dakota; and

(C) notwithstanding the limitations described in subsection (b)(1)(B), 5 are in proximity to a river system or other aquatic habitat within the State of Washington with respect to which an Indian Tribe, an inter-tribal consortium, or a Tribal organization has Tribal treaty rights.

(3) Report to Congress

Not later than 3 years after January 4, 2025, and annually thereafter, 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 report that describes activities or projects carried out under the pilot program.

(4) Savings clause

Nothing in this subsection authorizes—

(A) a project for the removal of a dam that otherwise is a project described in paragraph (2);

(B) the study of the removal of a dam; or

(C) the study of any Federal dam, including the study of power, flood control, or navigation replacement, or the implementation of any functional alteration to that dam, that is located along a body of water described in paragraph (2).

(Pub. L. 106–541, title II, § 203, Dec. 11, 2000, 114 Stat. 2588; Pub. L. 110–114, title II, § 2011, Nov. 8, 2007, 121 Stat. 1074; Pub. L. 113–121, title I, § 1031(a), June 10, 2014, 128 Stat. 1232; Pub. L. 114–322, title I, § 1121, Dec. 16, 2016, 130 Stat. 1644; Pub. L. 115–270, title I, § 1157(i), Oct. 23, 2018, 132 Stat. 3794; Pub. L. 116–260, div. AA, title III, § 303, Dec. 27, 2020, 134 Stat. 2703; Pub. L. 117–263, div. H, title LXXXI, § 8111, Dec. 23, 2022, 136 Stat. 3703; Pub. L. 118–272, div. A, title I, § 1140, Jan. 4, 2025, 138 Stat. 3028.)

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[1]  So in original.

Editorial Notes

References in Text

January 4, 2025, referred to in subsec. (e)(3), was in the original “the date of enactment of this section”, which was translated as meaning the date of enactment of Pub. L. 118–272, which enacted subsec. (e), to reflect the probable intent of Congress.

Codification

Section was enacted as part of the Water Resources Development Act of 2000, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Amendments

2025—Subsec. (a). Pub. L. 118–272, § 1140(1), substituted “Definitions” for “Definition of Indian tribe” in heading, and in text, substituted “In this section:” for “In this section, the term”, inserted par. (1) designation and heading and “The terms ‘Indian tribe’ and ‘Indian Tribe’ have the meanings given the terms” before “ ‘Indian tribe’ has” and added pars. (2) and (3).

Subsec. (b)(1). Pub. L. 118–272, § 1140(2)(A)(i), inserted “, inter-tribal consortiums, Tribal organizations,” after “Indian tribes” in introductory provisions.

Subsec. (b)(1)(A). Pub. L. 118–272, § 1140(2)(A)(ii), inserted “, inter-tribal consortiums, or Tribal organizations” after “Indian tribes”.

Subsec. (b)(2). Pub. L. 118–272, § 1140(2)(B), added par. (2) and struck out former par. (2) which related to authorized activities conducted under paragraph (1).

Subsec. (b)(3)(A). Pub. L. 118–272, § 1140(2)(C), inserted “, an inter-tribal consortium, or a Tribal organization” after “an Indian tribe” and “, inter-tribal consortium, or Tribal organization” after “the Indian tribe”.

Subsec. (b)(4). Pub. L. 118–272, § 1140(2)(D), substituted “$28,500,000” for “$26,000,000”.

Subsec. (d)(7). Pub. L. 118–272, § 1140(3), added par. (7).

Subsec. (e). Pub. L. 118–272, § 1140(4), added subsec. (e) and struck out former subsec. (e). Prior to amendment, text read as follows: “The Secretary is authorized to carry out activities under this section for fiscal years 2015 through 2033.”

2022—Subsec. (a). Pub. L. 117–263, § 8111(1), made technical amendment to reference in original act which appears in text as reference to section 5304 of title 25.

Subsec. (b)(2)(A). Pub. L. 117–263, § 8111(2)(A)(i), inserted “hurricane and storm” after “flood” and “including erosion control,” after “reduction,”.

Subsec. (b)(2)(C), (D). Pub. L. 117–263, § 8111(2)(A)(ii)–(iv), added subpar. (C) and redesignated former subpar. (C) as (D).

Subsec. (b)(3)(C). Pub. L. 117–263, § 8111(2)(B), added subpar. (C).

Subsec. (b)(4)(A). Pub. L. 117–263, § 8111(2)(C)(i), substituted “$26,000,000” for “$18,500,000”.

Subsec. (b)(4)(B). Pub. L. 117–263, § 8111(2)(C)(ii), substituted “$26,000,000” for “$18,500,000”.

Subsec. (b)(5). Pub. L. 117–263, § 8111(2)(D), added par. (5).

Subsec. (d)(5)(B). Pub. L. 117–263, § 8111(3)(A), substituted “Federal” for “non-Federal” and “100 percent” for “50 percent”.

Subsec. (d)(6). Pub. L. 117–263, § 8111(3)(B), added par. (6).

Subsec. (e). Pub. L. 117–263, § 8111(4), substituted “2033” for “2024”.

2020—Subsec. (b)(4). Pub. L. 116–260 substituted “$18,500,000” for “$12,500,000” in subpars. (A) and (B).

2018—Subsec. (b)(4). Pub. L. 115–270 amended par. (4) generally. Prior to amendment, text read as follows:

“(A) In general.—The Secretary may carry out the design and construction of a water resources development project described in paragraph (1) that the Secretary determines is feasible if the Federal share of the cost of the project is not more than $10,000,000.

“(B) Specific authorization.—If the Federal share of the cost of a project described in subparagraph (A) is more than $10,000,000, the Secretary may only carry out the project if Congress enacts a law authorizing the Secretary to carry out the project.”

2016—Subsec. (b)(1). Pub. L. 114–322, § 1121(1)(A), substituted “the Secretary may carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects,” for “the Secretary may carry out water-related planning activities and study and determine the feasibility of carrying out water resources development projects” in introductory provisions.

Subsec. (b)(2). Pub. L. 114–322, § 1121(1)(B), substituted “Authorized activities” for “Matters to be studied” in heading and “An activity” for “A study” in introductory provisions.

Subsec. (b)(3), (4). Pub. L. 114–322, § 1121(1)(C), added pars. (3) and (4).

Subsec. (c)(1). Pub. L. 114–322, § 1121(2)(A), substituted “an activity” for “studies”.

Subsec. (c)(2)(B). Pub. L. 114–322, § 1121(2)(B), substituted “an activity conducted” for “carrying out projects studied”.

Subsec. (d)(1)(A). Pub. L. 114–322, § 1121(3)(A), substituted “an activity conducted” for “a study”.

Subsec. (d)(2) to (5). Pub. L. 114–322, § 1121(3)(B), added pars. (2) to (5) and struck out former par. (2). Prior to amendment, text of par. (2) read as follows: “The Secretary may credit toward the non-Federal share of the costs of a study under subsection (b) the cost of services, studies, supplies, or other in-kind contributions provided by the non-Federal interest if the Secretary determines that the services, studies, supplies, and other in-kind contributions will facilitate completion of the study.”

2014—Subsec. (d)(1)(B). Pub. L. 113–121, § 1031(a)(1), designated existing provisions as cl. (i), inserted heading, and added cl. (ii).

Subsec. (e). Pub. L. 113–121, § 1031(a)(2), added subsec. (e) and struck out former subsec. (e) which authorized appropriations for fiscal years 2002 to 2012.

2007—Subsec. (b)(1). Pub. L. 110–114, § 2011(a)(1), inserted “carry out water-related planning activities and” after “the Secretary may” in introductory provisions.

Subsec. (b)(1)(B). Pub. L. 110–114, § 2011(a)(2), inserted “, and including lands that are within the jurisdictional area of an Oklahoma Indian tribe, as determined by the Secretary of the Interior, and are recognized by the Secretary of the Interior as eligible for trust land status under part 151 of title 25, Code of Federal Regulations” after “section 1151 of title 18”.

Subsec. (b)(2). Pub. L. 110–114, § 2011(a)(3), added subpar. (B) and redesignated former subpar. (B) as (C).

Subsec. (e). Pub. L. 110–114, § 2011(b), substituted “2012” for “2006”.

Statutory Notes and Related Subsidiaries

Tribal Project Implementation Pilot Program

Pub. L. 118–272, div. A, title I, § 1141, Jan. 4, 2025, 138 Stat. 3030, provided that:

“(a) Definitions.—

In this section:

“(1) Eligible project.—

The term ‘eligible project’ means a project or activity eligible to be carried out under the Tribal partnership program under section 203 of the Water Resources Development Act of 2000 (33 U.S.C. 2269).

“(2) Indian tribe.—

The term ‘Indian Tribe’ has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

“(b) Authorization.—

Not later than 180 days after the date of enactment of this Act [Jan. 4, 2025], the Secretary [of the Army] shall establish and implement a pilot program under which Indian Tribes may directly carry out eligible projects.

“(c) Purposes.—

The purposes of the pilot program under this section are—

“(1) to authorize Tribal contracting to advance Tribal self-determination and provide economic opportunities for Indian Tribes; and

“(2) to evaluate the technical, financial, and organizational efficiencies of Indian Tribes carrying out the design, execution, management, and construction of 1 or more eligible projects.

“(d) Administration.—

“(1) In general.—

In carrying out the pilot program under this section, the Secretary shall—

“(A) identify a total of not more than 5 eligible projects that have been authorized for construction;

“(B) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the identification of each eligible project under the pilot program under this section;

“(C) in collaboration with the Indian Tribe, develop a detailed project management plan for each identified eligible project that outlines the scope, budget, design, and construction resource requirements necessary for the Indian Tribe to execute the project or a separable element of the eligible project;

“(D) on the request of the Indian Tribe and in accordance with subsection (f)(2), enter into a project partnership agreement with the Indian Tribe for the Indian Tribe to provide full project management control for construction of the eligible project, or a separable element of the eligible project, in accordance with plans approved by the Secretary;

“(E) following execution of the project partnership agreement, transfer to the Indian Tribe to carry out construction of the eligible project, or a separable element of the eligible project—

“(i) if applicable, the balance of the unobligated amounts appropriated for the eligible project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the eligible project and the pilot program under this section; and

“(ii) additional amounts, as determined by the Secretary, from amounts made available to carry out this section, except that the total amount transferred to the Indian Tribe shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and

“(F) regularly monitor and audit each eligible project being constructed by an Indian Tribe under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.

“(2) Detailed project schedule.—

Not later than 180 days after entering into an agreement under paragraph (1)(D), each Indian Tribe, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule, based on estimated funding levels, that lists all deadlines for each milestone in the construction of the eligible project.

“(3) Technical assistance.—

On the request of an Indian Tribe, the Secretary may provide technical assistance to the Indian Tribe, if the Indian Tribe contracts with and compensates the Secretary for the technical assistance relating to—

“(A) any study, engineering activity, and design activity for construction carried out by the Indian Tribe under this section; and

“(B) expeditiously obtaining any permits necessary for the eligible project.

“(e) Cost Share.—

Nothing in this section affects the cost-sharing requirement applicable on the day before the date of enactment of this Act to an eligible project carried out under this section.

“(f) Implementation Guidance.—

“(1) In general.—

Not later than 120 days after the date of enactment of this Act, the Secretary shall issue guidance for the implementation of the pilot program under this section that, to the extent practicable, identifies—

“(A) the metrics for measuring the success of the pilot program;

“(B) a process for identifying future eligible projects to participate in the pilot program;

“(C) measures to address the risks of an Indian Tribe constructing eligible projects under the pilot program, including which entity bears the risk for eligible projects that fail to meet Corps of Engineers standards for design or quality;

“(D) the laws and regulations that an Indian Tribe must follow in carrying out an eligible project under the pilot program; and

“(E) which entity bears the risk in the event that an eligible project carried out under the pilot program fails to be carried out in accordance with the project authorization or this section.

“(2) New project partnership agreements.—

The Secretary may not enter into a project partnership agreement under this section until the date on which the Secretary issues the guidance under paragraph (1).

“(g) Report.—

“(1) In general.—

Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report detailing the results of the pilot program under this section, including—

“(A) a description of the progress of Indian Tribes in meeting milestones in detailed project schedules developed pursuant to subsection (d)(2); and

“(B) any recommendations of the Secretary concerning whether the pilot program or any component of the pilot program should be implemented on a national basis.

“(2) Update.—

Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update to the report under paragraph (1).

“(3) Failure to meet deadline.—

If the Secretary fails to submit a report by the required deadline under this subsection, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed explanation of why the deadline was missed and a projected date for submission of the report.

“(h) Administration.—

All laws and regulations that would apply to the Secretary if the Secretary were carrying out the eligible project shall apply to an Indian Tribe carrying out an eligible project under this section.

“(i) Termination of Authority.—

The authority to commence an eligible project under this section terminates on December 31, 2029.

“(j) Authorization of Appropriations.—

In addition to any amounts appropriated for a specific eligible project, there is authorized to be appropriated to the Secretary to carry out this section, including the costs of administration of the Secretary, $15,000,000 for each of fiscal years 2024 through 2029.”

“Secretary” Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 106–541, set out as a note under section 2201 of this title.