33 USC 3902 - Authority to provide assistance

Collapse to view only § 3902. Authority to provide assistance

§ 3901. Definitions
§ 3902. Authority to provide assistance
§ 3903. Applications
§ 3904. Eligible entities
§ 3905. Projects eligible for assistance
§ 3906. Activities eligible for assistance
§ 3907. Determination of eligibility and project selection
§ 3908. Secured loans
§ 3909. Program administration
§ 3910. State, tribal, and local permits
§ 3911. Regulations
§ 3912. Funding
§ 3913. Reports on program implementation
§ 3914. Requirements
§ 3915. Outreach plan

§ 3901. Definitions

In this chapter:

(1) Administrator

(2) Community water system

(3) Federal credit instrument

(4) Investment-grade rating

(5) Lender

(A) In general

(B) Inclusions

The term “lender” includes—

(i) a qualified retirement plan (as defined in section 4974(c) of title 26) that is a qualified institutional buyer; and

(ii) a governmental plan (as defined in section 414(d) of title 26) that is a qualified institutional buyer.

(6) Loan guarantee

(7) Obligor

(8) Project obligation

(A) In general

(B) Exclusion

(9) Rating agency

(10) Secured loan

(11) State

The term “State” means—

(A) a State;

(B) the District of Columbia;

(D) any other territory or possession of the United States.

(12) State infrastructure financing authority

(13) Subsidy amount

(14) Substantial completion

(15) Treatment works

(Pub. L. 113–121, title V, § 5022, June 10, 2014, 128 Stat. 1332.)

§ 3902. Authority to provide assistance

(a) In general

(b) Responsibility

(1) Secretary

(2) Administrator

(3) Other projects

(Pub. L. 113–121, title V, § 5023, June 10, 2014, 128 Stat. 1333; Pub. L. 114–322, title IV, § 5008(a), (b)(2)(A), Dec. 16, 2016, 130 Stat. 1896, 1897; Pub. L. 115–270, title IV, § 4201(a)(1), Oct. 23, 2018, 132 Stat. 3877.)

§ 3903. Applications

(a) In general

(b) Combined projects

(Pub. L. 113–121, title V, § 5024, June 10, 2014, 128 Stat. 1333; Pub. L. 114–322, title IV, § 5008(b)(2)(B), Dec. 16, 2016, 130 Stat. 1897.)

§ 3904. Eligible entities

The following entities are eligible to receive assistance under this chapter:

(1) A corporation.

(2) A partnership.

(3) A joint venture.

(4) A trust.

(5) A Federal, State, or local governmental entity, agency, or instrumentality.

(6) A tribal government or consortium of tribal governments.

(7) A State infrastructure financing authority.

(Pub. L. 113–121, title V, § 5025, June 10, 2014, 128 Stat. 1334.)

§ 3905. Projects eligible for assistanceThe following projects may be carried out with amounts made available under this chapter:

(1)

(A) a project to reduce flood damage;

(B) a project to restore aquatic ecosystems;

(D) a project to improve navigation of a coastal or inland harbor of the United States, including channel deepening and construction of associated general navigation features.

(2) 1 or more activities that are eligible for assistance under section 1383(c) of this title, notwithstanding the public ownership requirement under paragraph (1) of that subsection.

(3) 1 or more activities described in section 300j–12(a)(2) of title 42.

(4) A project for enhanced energy efficiency in the operation of a public water system or a publicly owned treatment works.

(5) A project for repair, rehabilitation, or replacement of a treatment works, community water system, or aging water distribution or waste collection facility (including a facility that serves a population or community of an Indian reservation).

(6) A brackish or sea water desalination project, including chloride control, a managed aquifer recharge project, a water recycling project, or a project to provide alternative water supplies to reduce aquifer depletion.

(7) A project to prevent, reduce, or mitigate the effects of drought, including projects that enhance the resilience of drought-stricken watersheds.

(8) Acquisition of real property or an interest in real property—

(A) if the acquisition is integral to a project described in paragraphs (1) through (6); or

(B) pursuant to an existing plan that, in the judgment of the Administrator or the Secretary, as applicable, would mitigate the environmental impacts of water resources infrastructure projects otherwise eligible for assistance under this section.

(9) A combination of projects, each of which is eligible under paragraph (2) or (3), for which a State infrastructure financing authority submits to the Administrator a single application.

(10) A combination of projects secured by a common security pledge, each of which is eligible under paragraph (1), (2), (3), (4), (5), (6), (7), or (8), for which an eligible entity, or a combination of eligible entities, submits a single application.

(Pub. L. 113–121, title V, § 5026, June 10, 2014, 128 Stat. 1334; Pub. L. 114–322, title IV, § 5008(b)(1), Dec. 16, 2016, 130 Stat. 1896.)

§ 3906. Activities eligible for assistance

For purposes of this chapter, an eligible activity with respect to an eligible project includes the cost of—

(1) development-phase activities, including planning, feasibility analysis (including any related analysis necessary to carry out an eligible project), revenue forecasting, environmental review, permitting, preliminary engineering and design work, and other preconstruction activities;

(2) construction, reconstruction, rehabilitation, and replacement activities;

(3) the acquisition of real property or an interest in real property (including water rights, land relating to the project, and improvements to land), environmental mitigation (including acquisitions pursuant to section 3905(8) of this title), construction contingencies, and acquisition of equipment; and

(4) capitalized interest necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction.

(Pub. L. 113–121, title V, § 5027, June 10, 2014, 128 Stat. 1335; Pub. L. 114–322, title IV, § 5008(b)(2)(C), Dec. 16, 2016, 130 Stat. 1897.)

§ 3907. Determination of eligibility and project selection

(a) Eligibility requirementsTo be eligible to receive financial assistance under this chapter, a project shall meet the following criteria, as determined by the Secretary or Administrator, as applicable:

(1) Creditworthiness

(A) In general

(B) ConsiderationsIn determining the creditworthiness of a project and obligor, the Secretary or the Administrator, as applicable, shall take into consideration relevant factors, including—

(i) the terms, conditions, financial structure, and security features of the proposed financing;

(ii) the dedicated revenue sources that will secure or fund the project obligations;

(iii) the financial assumptions upon which the project is based; and

(iv) the financial soundness and credit history of the obligor.

(D) Rating opinion letters

(i) Preliminary rating opinion letter

(ii) Final rating opinion letters

(E) Special rule for certain combined projectsThe Administrator shall develop a credit evaluation process for a Federal credit instrument provided to—

(i) a State infrastructure financing authority for a project under section 3905(9) of this title, which may include requiring the provision of a final rating opinion letter from at least one rating agency; or

(ii) an entity for a project under section 3905(10) of this title, which may include requiring the provision of a final rating opinion letter from at least two rating agencies.

(2) Eligible project costs

(A) In general

(B) Small community water infrastructure projects

(3) Dedicated revenue sources

(4) Public sponsorship of private entities

(A) In general

(B) Public sponsorship

(5) Use of existing financing mechanisms

(A) Notification

(B) DeterminationIf, not later than 60 days after the date of receipt of a notification under subparagraph (A), a State infrastructure financing authority notifies the Administrator that the State infrastructure financing authority intends to commit funds to the project in an amount that is equal to or greater than the amount requested under the application, the Administrator may not provide any financial assistance for that project under this chapter unless—

(i) by the date that is 180 days after the date of receipt of a notification under subparagraph (A), the State infrastructure financing authority fails to enter into an assistance agreement to provide funds for the project; or

(ii) the financial assistance to be provided by the State infrastructure financing authority will be at rates and terms that are less favorable than the rates and terms for financial assistance provided under this chapter.

(6) Operation and maintenance plan

(A) In general

(B) Special rule

(b) Selection criteria

(1) Establishment

(2) CriteriaThe selection criteria shall include the following:

(A) The extent to which the project is nationally or regionally significant, with respect to the generation of economic and public benefits, such as—

(i) the reduction of flood risk;

(ii) the improvement of water quality and quantity, including aquifer recharge;

(iii) the protection of drinking water, including source water protection; and

(iv) the support of international commerce.

(B) The extent to which the project financing plan includes public or private financing in addition to assistance under this chapter.

(C) The likelihood that assistance under this chapter would enable the project to proceed at an earlier date than the project would otherwise be able to proceed.

(D) The extent to which the project uses new or innovative approaches.

(E) The amount of budget authority required to fund the Federal credit instrument made available under this chapter.

(F) The extent to which the project—

(i) protects against extreme weather events, such as floods or hurricanes; or

(ii) helps maintain or protect the environment.

(G) The extent to which a project serves regions with significant energy exploration, development, or production areas.

(H) The extent to which a project serves regions with significant water resource challenges, including the need to address—

(i) water quality concerns in areas of regional, national, or international significance;

(ii) water quantity concerns related to groundwater, surface water, or other water sources;

(iii) significant flood risk;

(iv) water resource challenges identified in existing regional, State, or multistate agreements; or

(v) water resources with exceptional recreational value or ecological importance.

(I) The extent to which the project addresses identified municipal, State, or regional priorities.

(J) The readiness of the project to proceed toward development, including a demonstration by the obligor that there is a reasonable expectation that the contracting process for construction of the project can commence by not later than 90 days after the date on which a Federal credit instrument is obligated for the project under this chapter.

(K) The extent to which assistance under this chapter reduces the contribution of Federal assistance to the project.

(3) Special rule for certain combined projects

(Pub. L. 113–121, title V, § 5028, June 10, 2014, 128 Stat. 1335; Pub. L. 114–94, div. A, title I, § 1445, Dec. 4, 2015,

§ 3908. Secured loans

(a) Agreements

(1) In general

(2) Financial risk assessment

(3) Investment-grade rating requirement

(b) Terms and limitations

(1) In general

(2) Maximum amount

The amount of a secured loan under this section shall not exceed the lesser of—

(A) an amount equal to 49 percent of the reasonably anticipated eligible project costs; and

(B) if the secured loan does not receive an investment-grade rating, the amount of the senior project obligations of the project.

(3) Payment

A secured loan under this section—

(A) shall be payable, in whole or in part, from State or local taxes, user fees, or other dedicated revenue sources that also secure the senior project obligations of the relevant project;

(B) shall include a rate covenant, coverage requirement, or similar security feature supporting the project obligations; and

(4) Interest rate

(5) Maturity date

(A) In general

The final maturity date of a secured loan under this section shall be the earlier of—

(i) the date that is 35 years after the date of substantial completion of the relevant project (as determined by the Secretary or the Administrator, as applicable); and

(ii) if the useful life of the project (as determined by the Secretary or Administrator, as applicable) is less than 35 years, the useful life the project.

(B) Special rule for State infrastructure financing authorities

(6) Nonsubordination

(7) Fees

(A) In general

(B) Financing fees

(8) Non-Federal share

(9) Maximum Federal involvement

(A) In general

(B) Exceptions

Subparagraph (A) shall not apply to any rural water project—

(i) that is authorized to be carried out by the Secretary of the Interior;

(ii) that includes among its beneficiaries a federally recognized Indian tribe; and

(iii) for which the authorized Federal share of the total project costs is greater than the amount described in subparagraph (A).

(10) Credit

(1) Schedule

(2) Commencement

(A) In general

(B) Special rule for State infrastructure financing authorities

(i) Timing of scheduled loan repayments

(ii) Repayments

(3) Deferred payments

(A) Authorization

(B) Interest

Any payment deferred under subparagraph (A) shall—

(i) continue to accrue interest in accordance with subsection (b)(4) until fully repaid; and

(ii) be scheduled to be amortized over the remaining term of the secured loan.

(i) In general

(ii) Repayment standards

(4) Prepayment

(A) Use of excess revenues

(B) Use of proceeds of refinancing

(d) Sale of secured loans

(1) In general

(2) Consent of obligor

(e) Loan guarantees

(1) In general

(2) Terms

(Pub. L. 113–121, title V, § 5029, June 10, 2014, 128 Stat. 1338; Pub. L. 114–322, title IV, § 5008(c), Dec. 16, 2016, 130 Stat. 1897; Pub. L. 115–270, title IV, § 4201(a)(3), (b)(1), Oct. 23, 2018, 132 Stat. 3877, 3878.)

§ 3909. Program administration

(a) Requirement

(b) Fees

(1) In general

The Secretary or the Administrator, as applicable, may collect and spend fees, contingent on authority being provided in appropriations Acts, at a level that is sufficient to cover—

(A) the costs of services of expert firms retained pursuant to subsection (d); and

(B) all or a portion of the costs to the Federal Government of servicing the Federal credit instruments provided under this chapter.

(2) Prohibition on pass through fees

(1) In general

(2) Duties

(3) Fee

(d) Assistance from experts

(e) Special rule for State reviews of projects for State infrastructure financing authorities

(1) In general

A project described in section 3905(9) of this title for which funding is provided under this title shall comply with any applicable State environmental or engineering review requirements pursuant to, as applicable—

(A) title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.); and

(B)section 300j–12 of title 42.

(2) No new reviews required

(f) Special rule for expedited review of applications from State infrastructure financing authorities

Not later than 180 days after the date on which the Administrator receives a complete application from a State infrastructure financing authority for a project under section 3905(9) of this title, the Administrator shall, through a written notice to the State infrastructure financing authority—

(1) approve the application; or

(2) provide detailed guidance and an explanation of any changes to the application necessary for approval of the application.

(g) Agreements

(1) In general

(2) Duties

(3) Transfer of funds

The authority of the Administrator to provide assistance under paragraph (1) is subject to—

(A) the availability of funds appropriated to the other Federal agency that may be transferred to the Administrator to carry out an agreement entered into under paragraph (1); and

(B) the transfer of such funds to the Administrator to carry out such an agreement.

(4) Limitation

(h) Applicability of other laws

(Pub. L. 113–121, title V, § 5030, June 10, 2014, 128 Stat. 1341; Pub. L. 115–270, title IV, § 4201(b)(2), (c), Oct. 23, 2018, 132 Stat. 3878, 3880.)

§ 3910. State, tribal, and local permits

The provision of financial assistance for a project under this chapter shall not—

(1) relieve any recipient of the assistance of any obligation to obtain any required State, local, or tribal permit or approval with respect to the project;

(2) limit the right of any unit of State, local, or tribal government to approve or regulate any rate of return on private equity invested in the project; or

(3) otherwise supersede any State, local, or tribal law (including any regulation) applicable to the construction or operation of the project.

(Pub. L. 113–121, title V, § 5031, June 10, 2014, 128 Stat. 1342.)

§ 3911. Regulations

The Secretary or the Administrator, as applicable, may promulgate such regulations as the Secretary or Administrator determines to be appropriate to carry out this chapter.

(Pub. L. 113–121, title V, § 5032, June 10, 2014, 128 Stat. 1342.)

§ 3912. Funding

(a) In general

(1) Fiscal years 2015 through 2019

There are authorized to be appropriated to each of the Secretary and the Administrator to carry out this chapter, to remain available until expended—

(A) $20,000,000 for fiscal year 2015;

(B) $25,000,000 for fiscal year 2016;

(D) $45,000,000 for fiscal year 2018; and

(E) $50,000,000 for fiscal year 2019.

(2) Fiscal years 2020 and 2021

(3) Fiscal years 2022 through 2026

(b) Administrative costs

(1) Fiscal years 2015 through 2019

(2) Fiscal years after 2019

(1) In general

(2) Administration

(d) Additional funding

(e) Assistance for State infrastructure financing authorities

(1) In general

(2) No impact on other Federal funding

No funds shall be made available in a fiscal year to the Administrator for purposes of this subsection if—

(A) the total amount appropriated for the fiscal year for State loan funds under section 300j–12 of title 42 is less than either the amount made available for such purpose in fiscal year 2018, or 105 percent of the previous fiscal year’s appropriation for such purpose, whichever is greater; and

(B) the total amount appropriated for the fiscal year for water pollution control revolving funds under title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.] is less than either the amount made available for such purpose for fiscal year 2018, or 105 percent of the previous fiscal year’s appropriation for such purpose, whichever is greater.

(3) Inclusion in agreement

(Pub. L. 113–121, title V, § 5033, June 10, 2014, 128 Stat. 1342; Pub. L. 115–270, title IV, § 4201(a)(4), (b)(3), Oct. 23, 2018, 132 Stat. 3878, 3879; Pub. L. 117–58, div. E, title II, § 50215(a), Nov. 15, 2021, 135 Stat. 1174.)

§ 3913. Reports on program implementation

(a) Agency reporting

(1) each application received for assistance under this chapter; and

(2) a list of the projects selected for assistance under this chapter, including—

(A) a description of each project;

(B) the amount of financial assistance provided for each project; and

(b) Reports to Congress

(1) In generalNot later than 3 years after October 23, 2018, the Comptroller General of the United States 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 report summarizing for the projects that are receiving, or have received, assistance under this chapter—

(A) the applications received for assistance under this chapter;

(B) the projects selected for assistance under this chapter, including a description of the projects and the basis for the selection of those projects with respect to the requirements of this chapter;

(D) the financial performance of each project selected for assistance under this chapter, including an evaluation of whether the objectives of this chapter are being met;

(E) the benefits and impacts of implementation of this chapter, including the public benefit provided by the projects selected for assistance under this chapter, including, as applicable, water quality and water quantity improvement, the protection of drinking water, and the reduction of flood risk; and

(F) an evaluation of the feasibility of attracting non-Federal public or private financing for water infrastructure projects as a result of the implementation of this chapter.

(2) RecommendationsThe report under paragraph (1) shall include—

(A) an evaluation of the impacts (if any) of the limitation under section 3907(a)(5) 1

1 See References in Text note below.

of this title on the ability of eligible entities to finance water infrastructure projects under this chapter;

(B) a recommendation as to whether the objectives of this chapter would be best served—

(i) by continuing the authority of the Secretary or the Administrator, as applicable, to provide assistance under this chapter;

(ii) by establishing a Government corporation or Government-sponsored enterprise to provide assistance in accordance with this chapter; or

(iii) by terminating the authority of the Secretary and the Administrator under this chapter and relying on the capital markets to fund the types of infrastructure investments assisted by this chapter without Federal participation; and

(C) any proposed changes to improve the efficiency and effectiveness of this chapter in providing financing for water infrastructure projects, taking into consideration the recommendations made under subparagraphs (A) and (B).

(Pub. L. 113–121, title V, § 5034, June 10, 2014, 128 Stat. 1343; Pub. L. 115–270, title IV, § 4201(d), Oct. 23, 2018, 132 Stat. 3880.)

§ 3914. Requirements

(a) In general

(b) Definition of iron and steel products

Subsection (a) shall not apply in any case or category of cases in which the Administrator finds that—

(1) applying subsection (a) would be inconsistent with the public interest;

(2) iron and steel products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or

(3) inclusion of iron and steel products produced in the United States will increase the cost of the overall project by more than 25 percent.

(d) Waiver

(e) International agreements

(Pub. L. 113–121, title V, § 5035, June 10, 2014, 128 Stat. 1344.)

§ 3915. Outreach plan

(a) Definition of rural community

(b) Outreach required

(Pub. L. 113–121, title V, § 5036, as added Pub. L. 117–58, div. E, title II, § 50215(b), Nov. 15, 2021, 135 Stat. 1174.)