§3907 — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

To get federal financial help for a water project, the project must meet rules the Secretary or the Administrator sets. The project and its borrower must be creditworthy. Officials will look at the loan terms, the dedicated revenue that will pay back the debt, the project’s financial assumptions, and the borrower’s financial history. The loan must have security features (for example, a rate covenant). Applicants must give a preliminary rating letter from at least one rating agency when they apply showing the senior debt could reach an investment‑grade rating, and a final rating letter from at least one agency before final approval. The Administrator may require a special credit review and may ask for one or two final rating letters for certain types of borrowers. Most projects must be expected to cost at least $20,000,000. Projects that serve communities of not more than 25,000 people can be as small as $5,000,000. The federal loan must be repaid, in whole or part, from dedicated revenue that also secures the project. If a nongovernmental group runs the project, a state, local, or tribal government must publicly sponsor it and show it supports the project. The Administrator must tell the State infrastructure financing authority within 30 days of a complete application. If that State says within 60 days it will provide equal or greater funding, federal help is blocked unless the State fails to sign an agreement within 180 days or the State’s terms are worse than federal terms. Applicants must show they have a plan and revenue for operating and maintaining the project. Officials will pick projects using criteria such as regional or national benefits (like flood risk reduction, water quality, drinking water protection, or international commerce), other public or private financing, whether federal help speeds the project, innovation, budget cost, protection from extreme weather or environmental harm, service to energy or water‑stressed regions, local priorities, readiness to start construction contracting within 90 days after the federal loan is made, and the extent federal aid is reduced. Other federal laws and rules still apply.

Title 33, §3907

Navigation and Navigable Waters — Source: USLM XML via OLRC

(a)To 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)(A)The project and obligor shall be creditworthy, which shall be determined by the Secretary or the Administrator, as applicable.

(B)In 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.

(C)The Secretary or the Administrator, as applicable, shall ensure that any financing for the project has appropriate security features, such as a rate covenant, supporting the project obligations to ensure repayment.

(D)(i)The Secretary or the Administrator, as applicable, shall require each project applicant to provide, at the time of application, a preliminary rating opinion letter from at least 1 rating agency indicating that the senior obligations of the project (which may be the Federal credit instrument) have the potential to achieve an investment-grade rating.

(ii)The Secretary or the Administrator, as applicable, shall require each project applicant to provide, prior to final acceptance and financing of the project, a final rating opinion letter from at least 1 rating agency indicating that the senior obligations of the project have an investment-grade rating.

(E)The 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)(A)Subject to subparagraph (B), the eligible project costs of a project shall be reasonably anticipated to be not less than $20,000,000.

(B)For a project described in paragraph (2) or (3) of section 3905 of this title that serves a community of not more than 25,000 individuals, the eligible project costs of a project shall be reasonably anticipated to be not less than $5,000,000.

(3)The Federal credit instrument for the project shall be repayable, in whole or in part, from dedicated revenue sources that also secure the project obligations.

(4)(A)If an eligible project is carried out by an entity that is not a State or local government or an agency or instrumentality of a State or local government or a tribal government or consortium of tribal governments, the project shall be publicly sponsored.

(B)For purposes of this chapter, a project shall be considered to be publicly sponsored if the obligor can demonstrate, to the satisfaction of the Secretary or the Administrator, as appropriate, that the project applicant has consulted with the affected State, local, or tribal government in which the project is located, or is otherwise affected by the project, and that such government supports the proposed project.

(5)(A)For each eligible project for which the Administrator has authority under paragraph (2) or (3) of section 3902(b) of this title and for which the Administrator has received an application for financial assistance under this chapter, the Administrator shall notify, not later than 30 days after the date on which the Administrator receives a complete application, the applicable State infrastructure financing authority of the State in which the project is located that such application has been submitted.

(B)If, 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)(A)The Secretary or the Administrator, as applicable, shall determine whether an applicant for assistance under this chapter has developed, and identified adequate revenues to implement, a plan for operating, maintaining, and repairing the project over the useful life of the project.

(B)An eligible project described in section 3905(1) of this title that has not been specifically authorized by Congress shall not be eligible for Federal assistance for operations and maintenance.

(b)(1)The Secretary or the Administrator, as applicable, shall establish criteria for the selection of projects that meet the eligibility requirements of subsection (a), in accordance with paragraph (2).

(2)The 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)For a project described in section 3905(9) of this title, the Administrator shall only consider the criteria described in subparagraphs (B) through (K) of paragraph (2).

(c)Nothing in this section supersedes the applicability of other requirements of Federal law (including regulations).

Notes & Related Subsidiaries

Editorial Notes

Amendments

2021—Subsec. (a)(1)(D)(ii). Pub. L. 117–58 substituted “a final rating opinion letter from at least 1 rating agency” for “final rating opinion letters from at least 2 rating agencies”. 2018—Subsec. (a)(1)(E). Pub. L. 115–270 amended subpar. (E) generally. Prior to amendment, text read as follows: “The Administrator shall develop a credit evaluation process for a Federal credit instrument provided to a State infrastructure financing authority for a project under section 3905(9) of this title or 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 2 rating agencies.” 2016—Subsec. (a)(1)(E). Pub. L. 114–322, § 5008(b)(2)(D)(i), substituted “section 3905(9)” for “section 3905(8)” and “section 3905(10)” for “section 3905(9)”. Subsec. (b)(3). Pub. L. 114–322, § 5008(b)(2)(D)(ii), substituted “section 3905(9)” for “section 3905(8)”. 2015—Subsec. (a)(5) to (7). Pub. L. 114–94 redesignated pars. (6) and (7) as (5) and (6), respectively, and struck out former par. (5). Prior to amendment, text of par. (5) read as follows: “No project receiving Federal credit assistance under this chapter may be financed (directly or indirectly), in whole or in part, with proceeds of any obligation— “(A) the interest on which is exempt from the tax imposed under chapter 1 of title 26; or “(B) with respect to which credit is allowable under subpart I or J of part IV of subchapter A of chapter 1 of title 26.”

Statutory Notes and Related Subsidiaries

Effective Date

of 2015 AmendmentAmendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. “Secretary” Defined Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

§3907 Determination of eligibility and project selection