EP 1165-2-1
30 Jul 99
(either finished or unfinished), so that the study information may be
used in the permitting process. If the transferred Corps study is
complete, it can be used (under subsection 204(d) in addressing the
requirements for obtaining the appropriate permits required under the
Secretary's authority as well as support for a request for Federal O&M
under subsection 204(g). (ER 1165-2-124)
(4) Section 204(d). This subsection states that if the Corps
of Engineers has completed a study and engineering for an improvement
to a harbor, including the filing of a Final Environmental Impact
Statement, and the non-Federal interest has requested and received
such study and engineering from the Secretary pursuant to subsection
(b) or (c) of Section 204, the non-Federal interest is authorized to
carry out the improvement. Any improvement implemented in accordance
with subsection (d) of Section 204 shall be deemed to satisfy the
requirements for obtaining the appropriate permits required under the
Secretary's authority, subject to a finding that (1) the applicable
regulatory criteria and procedures have been satisfied and that (2)
regulatory requirements and environmental conditions have not changed
since the studies were completed. This provision only applies to
satisfying the permits under the Secretary's authority. (ER 1165-2-
124)
(5) Section 204(e). Section 204(e)(Reimbursement) of WRDA
1986 permits a non-Federal interest to construct an authorized Federal
project improvement with subsequent reimbursement for the Federal
share of project costs. In order to qualify for reimbursement, the
proposed work must be construction of a project specifically
authorized by Congress or be a separable element of such a project
(Section 204(e)(Reimbursement) is not applicable to projects
undertaken under the continuing authority program). It must be
primarily for the benefit of commercial navigation and must currently
satisfy the same economic and environmental criteria that would be
applied for Federal implementation. Since construction responsibility
will rest with the non-Federal interests, all Federal and non-Federal
permits must be obtained. The Corps must approve the plans of
construction and monitor the project as it is being built. Only work
started after an agreement is reached between ASA(CW) and the
non-Federal interests is eligible for reimbursement. No reimbursement
shall made unless and until the ASA(CW) has certified that the work
for which reimbursement is requested is complete and has been
performed in accordance with applicable permits and the approved
plans. However, ASA(CW) certification can be made upon completion of
physical construction, even if there are claims outstanding. The
amount eligible for reimbursement will be limited to the cost of
completed construction, including all settled claims at the time of
certification. Unsettled claims would be a non-Federal
responsibility. (ER 1165-2-120)
(6) Section 204(f). This subsection allows the Secretary to
approve as many as two proposals whereby a non-Federal interest would
undertake all or part of an authorized Federal project as the agent of
the Secretary by utilizing its own personnel or by procuring outside
services, so long as the costs of doing so will not exceed the cost of
the Secretary undertaking the project. (ER 1165-2-124)
c. Construction Authority Applicable to Navigation. The Corps
regulations implementing both Section 204(e)(Reimbursement) of WRDA
1986 and Section 215 of the Flood Control Act of 1968, which provides
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