[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Proposed Rules]
[Pages 68386-68410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24543]
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DEPARTMENT OF DEFENSE
Corps of Engineers, Department of the Army
33 CFR Part 203
[Docket ID: COE-2021-0008]
RIN 0710-AA78
Natural Disaster Procedures: Preparedness, Response, and Recovery
Activities of the Corps of Engineers
AGENCY: U.S. Army Corps of Engineers (Corps), Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: The Corps is proposing to revise its natural disaster
procedures under this part of the Code of Federal Regulations (CFR),
which implements a section of the Flood Control Act of 1941, as
amended. Revisions will incorporate advances in risk-informed decision-
making approaches and disaster response lessons learned, as well as
recent amendments to this section of the Flood Control Act of 1941.
DATES: Comments must be received on or before January 17, 2023.
ADDRESSES: You may submit comments, identified by docket number COE-
2021-0008, using any of these methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. Email: [email protected] and include the docket number,
COE-2021-0008, in the subject line of the message.
3. Mail: HQ, U.S. Army Corps of Engineers, ATTN: 33CFR203/CECW-HS/
3D64, 441 G Street NW, Washington, DC 20314-1000.
4. Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2021-0008.
The public docket will include all comments exactly as submitted and
without change and may be made available on-line at http://www.regulations.gov. This will include any personal information
provided, unless the commenter indicates that the comment includes
information claimed to be Confidential Business Information (CBI) or
other information where disclosure is restricted by statute. Do not
submit information that you consider to be CBI, or otherwise protected,
through regulations.gov or email. The regulations.gov website is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
regulations.gov, your email address will be automatically captured and
included as part of the comment placed in the public docket and made
available on the internet. If you submit an electronic comment, we
recommend that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification, we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. All documents in
the docket are listed. Although listed in the index, some information
is not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Mr. Willem H.A. Helms, Office of
Homeland Security, Directorate of Civil Works, U.S. Army Corps of
Engineers, at (202) 761-5909 or [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Background
General Information for the Proposed Rule
Need for Revision
Overview of Proposed Changes
Expected Benefits and Costs of Proposed Changes
Incorporation of Public Comments
References
Procedural Requirements
Background
Section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C.
701n), commonly and hereinafter referred to as ``Public Law 84-99''
authorizes the Corps to undertake certain emergency management
activities. Specifically, Public Law 84-99 authorizes an emergency fund
to be expended in preparation for emergency response to any natural
disaster, in flood fighting and rescue operations, or in the repair or
restoration of any flood control work threatened or destroyed by flood.
These activities may include the strengthening, raising, extending,
realigning, or other modification thereof as may be necessary in the
discretion of the Chief of Engineers for the adequate functioning of
the work for flood control and subject to the condition that the Chief
of Engineers may include modifications to the structure or project, or
in implementation of nonstructural alternatives to the repair or
restoration of such flood control work if requested by the non-Federal
sponsor. The emergency fund may also be expended for use in the
emergency protection of federally authorized hurricane or shore
protection when in the discretion of the Chief of Engineers such
protection is warranted to protect against imminent
[[Page 68387]]
and substantial loss to life and property. In addition, the emergency
fund may be expended for the repair and restoration of any federally
authorized hurricane or shore protective structure or project damaged
or destroyed by wind, wave, or water action of other than an ordinary
nature. Such repair and restoration must be completed to either the
pre-storm level or the design level of risk reduction, whichever
provides greater protection, when, in the discretion of the Chief of
Engineers, such repair and restoration is warranted for the adequate
functioning of the structure or project for hurricane or shore
protection, subject to the condition that the Chief of Engineers may
include modifications to the structure or project to address major
deficiencies or implement nonstructural alternatives to the repair or
restoration of the structure if requested by the non-Federal sponsor.
The emergency fund may also be expended for emergency dredging for
restoration of authorized project depths for Federal navigable channels
and waterways made necessary by flood, drought, earthquake, or other
natural disasters. In any case in which the Chief of Engineers is
otherwise performing work under this section in an area for which the
Governor of the affected State has requested a determination that an
emergency exists or a declaration that a major disaster exists under
the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5121 et
seq.], the Chief of Engineers is further authorized to perform on
public and private lands and waters for a period of 10 days following
the Governor's request any emergency work made necessary by such
emergency or disaster. Such work must be essential for the preservation
of life and property, including, but not limited to, channel clearance,
emergency shore protection, clearance and removal of debris and
wreckage endangering public health and safety, and temporary
restoration of essential public facilities and services. The Chief of
Engineers, in the exercise of his discretion, is further authorized to
provide emergency supplies of clean water, on such terms as he
determines to be advisable, to any locality which he finds is
confronted with a source of contaminated water causing or likely to
cause a substantial threat to the public health and welfare of the
inhabitants of the locality.
The Corps' Public Law 84-99 Program is multi-faceted program that
encompasses disaster preparedness, response and recovery activities in
support of Federal, State, Tribal, and local stakeholders. The Corps'
Public Law 84-99 Rehabilitation Program is a voluntary disaster
recovery program that provides for the rehabilitation (e.g., repair) of
damage to eligible Federal and non-Federal flood risk management
projects damaged by flood or coastal storms.
The Corps and other Federal agencies can assist communities in
assessing, communicating, and managing their flood risks and can help
them prepare for and respond to a flood, hurricane, or other natural
disaster. However, State, Tribal, and local governments, and those
living and working behind a flood or coastal storm risk management
project have the primary responsibility and role in this effort. The
residual flood risk associated with their projects is a result of how
those projects are expected to perform under a range of potential
floods, and the consequences that would result from their failure
during a flood.
The focus of this rulemaking is the Public Law 84-99 program. In
addition to Public Law 84-99, the Corps has other authorities. For
example, through its Planning Assistance to States program and its
Flood Plain Management Services program, the Corps is able to assist a
community to identify and evaluate options where the flood risk is
increasing due to climate change. Similarly, through these planning and
technical assistance programs, the Corps is able to encourage and
facilitate a collaborative approach to address complex natural
resources issues and Tribal treaty rights. However, the Corps generally
does not perform this kind of work through the Public Law 84-99
program. The Corps also recognizes the importance of environmental
justice. It applies this policy both in the Public Law 84-99 program
and under its other authorities.
Part 203 of Title 33 of the CFR is the Corps' implementing
regulation for Public Law 84-99 and was last promulgated in 2003 (68 FR
19357, April 21, 2003). Engineering Regulation 500-1-1 provides
internal agency-specific procedures implementation guidance for
implementing Public Law 84-99.
General Information for the Proposed Rule
1. Does this action apply to me? This action is directed to the
public in general, but will be of particular interest to a variety of
organizations, to include legally constituted non-Federal public bodies
responsible for operating and maintaining flood and coastal storm risk
management projects (referred to as ``non-Federal sponsors'' in 33
U.S.C. 701n), State, Tribal, territorial, and local emergency
management agencies, water resources agencies, environmental agencies,
fish and wildlife management agencies and organizations, and
floodplain, dam, and levee safety managers. This proposed rule applies
to many communities nationwide, including those with environmental
justice interests, and commenters are encouraged to provide their views
and inputs on environmental justice strategies related to this
rulemaking effort.
2. What should I consider as I prepare my comments for submission?
Commenters not familiar with current policy should review the
references section. These resources are available on the Federal
eRulemaking portal at http://www.regulations.gov. For ease of comment
review and consideration, commenters should consider referencing a
specific section or paragraph of 33 CFR part 203. In addition to
solicitation on the specific changes being proposed, the Corps solicits
comments in general on other issues or concerns related to this part
that commenters may wish to raise. For example, commenters may provide
comments on how best to incorporate nature-based solutions into this
program. For these comments, the commenter should state the issue or
concern, provide or reference any supporting documentation (e.g.,
reports, statistical data, and studies), and make a proposal or
recommendation about how to improve the regulation.
Need for Revision
This rule includes a proposed change in the focus of the
Rehabilitation Program. The eligibility of a levee system for
consideration for rehabilitation assistance after a flood was once
based only on inspections conducted by the Corps. More recently, the
Public Law 84-99 program has been transitioning to risk-informed
eligibility determinations for projects, which are based on an
evaluation of the non-Federal sponsor's overall risk management
activities, including information developed through inspections.
Additional changes are also proposed to effectively implement recent
amendments to Public Law 84-99.
Since the last revision in 2003, significant disasters, including
Hurricane Katrina (2005), Hurricane Sandy (2012), flooding on the
Mississippi and Missouri Rivers (2008, 2011, and 2013), and Hurricanes
Harvey, Irma, and Maria (2017) have provided a more detailed
understanding of the nature and severity of the risks associated with
coastal storms and floods. These significant events
[[Page 68388]]
provided information regarding project performance and the effects of
climate change that the Corps has considered when formulating this rule
update.
During Hurricane Katrina, the Federal response was found to be
reactive once State and local governments had exhausted available
response resources, and was not necessarily anticipatory. This rule
update provides ability to lend expertise and gain a greater
understanding of State, Tribal, and local needs and requirements in
order to improve their ability to prepare for, respond, and recover
from natural disasters. Lessons learned have also resulted in the
``whole of community'' principles outlined in the National Preparedness
Goal and supporting frameworks and which are incorporated in this rule
update.
Additionally, the maturation of risk-informed decision-making
approaches and technological advancements from a purely standards-based
perspective has influenced the outlook on how Public Law 84-99
activities should be implemented, with a shift towards better alignment
with the Corps Levee Safety and National Flood Risk Management
Programs. Risk-informed decision making uses an iterative process to
reduce risk over time by identifying the areas of acceptable risk,
monitoring the acceptable risk, and then devoting resources to manage
the sources of unacceptable risk in priority order. The process begins
by capturing activities and efforts within three overarching
categories: risk assessment, risk management, and risk communications.
Through this process, the Corps and non-Federal sponsors assess the
flood risk to property, infrastructure, public safety, and the
environment; and seek to reduce that risk in stages by addressing the
highest priority flood risk management deficiencies first, and by
working with elected officials and other risk managers to identify
other priority areas for investment. Through risk communication, people
living and working behind flood risk management projects also can make
informed decisions regarding flood insurance, evacuation measures,
flood proofing, and relocation. Risk assessment, risk management, and
risk communication concepts are included in this proposed update.
Given these developments since the last revision in 2003, the Corps
is proposing to repeal and replace part 203. The proposed revisions
include updated eligibility criteria for rehabilitation assistance
under Public Law 84-99. The proposed criteria are more risk-informed,
with the intended result of improved targeting of non-Federal sponsor
investments.
In addition to the lessons learned identified previously and the
evolution of Corps and national policy related to risk-informed
decision making and disaster risk management, the proposed revisions
reflect the enactment of the following statutes, which amended or
otherwise affected the Public Law 84-99 program:
1. Subsection 3029(a) of the Water Resources Reform and Development
Act of 2014 (WRRDA) (Pub. L. 113-121) grants the Chief of Engineers
authority to restore eligible hurricane or shore protection works to
the design level of risk reduction and, under certain circumstances, to
make modifications to flood control and hurricane or shore protection
works damaged during flood or coastal storms events, as well as the
authority to implement nonstructural alternatives in the repair and
restoration of hurricane or shore protection works if requested by the
non-Federal sponsor.
2. Section 3011 of WRRDA 2014 mandates that a levee system shall
remain eligible for rehabilitation assistance under Public Law 84-99 as
long as the system's non-Federal sponsors continue to make satisfactory
progress, as determined by the Secretary of the Army, on an approved
system wide improvement framework or letter of intent.
3. Section 1176 of the Water Resources Development Act of 2016
(WRDA) (Pub. L. 114-322, Title I) provides an express definition of
``nonstructural alternatives,'' as that term is used in Public Law 84-
99, and authorizes the Chief of Engineers, under certain circumstances,
to increase the level of risk reduction of flood control works when
conducting repair or restoration activities to such works under Public
Law 84-99.
4. Section 1160 of the Water Resources Development Act of 2018
(WRDA) (Pub. L. 115-270, Title I) provides the option of realignment to
the kinds of modifications that can be made to flood control works; and
changes the authorized level of restoration for coastal storm risk
management (CSRM) projects.
5. Section 1161 of the Water Resources Development Act of 2018
(WRDA) (Pub. L. 115-270, Title I), as amended by section 120 of the
Water Resources Development Act of 2020 (Division AA, Pub. L. 116-260),
authorizes the Chief of Engineers to repair or restore Federal and non-
Federal flood risk management (FRM) projects and federally authorized
CSRM projects when the costs of the repair or restoration work exceed
the benefits, if the non-Federal sponsor agrees to pay, in cash or in-
kind contributions, all costs in excess of the benefits of the repair
or restoration work and the Secretary determines that the damage to the
structure was not a result of negligent operation or maintenance and
that repair of the project could benefit another Corps project.
Overview of Proposed Changes
The section titles referred to in this section of the preamble
reflect the titles in the proposed regulatory text which may be
different than what is reflected in the currently codified regulatory
text.
Rulemaking Alternatives Considered
1. No rule update: In this alternative, the Corps would follow
status quo and continue to implement all changes through agency
discretion and internal regulations. This alternative was not selected
because the Public Law 84-99 amendments are very prescriptive and
public rulemaking is necessary to ensure implementing policy will
achieve its intended purpose as described in the proposed rule.
2. Repeal and replace only those provisions that pertain to the
Public Law 84-99 Rehabilitation and Inspection Program: In this
alternative, the Corps would issue a separate rule for the Public Law
84-99 Rehabilitation Program and would repeal the provisions in the
current rule that affect that program. This alternative was not
selected because it would result in two published rules for the Public
Law 84-99 program. That could result in misunderstandings of program
activities and inhibit transparency.
3. Repeal and replace all of the current rule (selected
alternative): In this selected alternative, the Corps proposes to
incorporate and integrate the current state of the practice of flood
risk management principles and concepts through the provision of agency
policy codified in a federal rule. The intended benefit is to encourage
broader community flood risk management activities by non-Federal
project sponsors specific to the flood risk management projects they
operate and maintain and in coordination with the applicable
communities. This rule alternative also consolidates recent Public Law
84-99 amendments into one comprehensive rule, ensuring the public has a
clear understanding of the responsibilities and requirements.
Proposed Changes to Each Section
Subpart A--Introduction
Section 203.11 General. Minor editorial changes are proposed for
[[Page 68389]]
clarity to better describe the purpose of this section of the
regulation and to reflect the requirements of Public Law 84-99, as
amended (33 U.S.C. 701n). Editorial changes also are proposed for
clarity and accuracy to better reflect the current authorities and
activities of the Corps under Public Law 84-99, such as changing
``flood control works'' to the more appropriate ``flood risk management
projects.'' In addition, two new subsections are proposed for ``Form of
Assistance'' and ``Availability of Assistance.'' The ``Form of
Assistance'' proposed text clarifies that direct assistance is only
provided to responsible State, Tribal, territorial, and local interests
rather than individuals and that the Corps generally does not transfer
Federal funds for the non-Federal performance of assistance activities.
The ``Availability of Assistance'' subsection proposed text clarifies
that Public Law 84-99 assistance is only provided when similar
assistance is not reasonably available from other Federal agencies.
Section 203.12 Definitions. To enhance transparency and common
understanding, new definitions are proposed for coastal storm risk
management projects; emergency repair, rehabilitation, and restoration;
Federal coastal storm risk management project; Federal flood risk
management projects; flood risk management projects; Tribal Nation;
interim risk reduction measures (IRRM); Lands, Easesment, Right-of-Way,
Relocation, and Disposal/Borrow sites (LERRDs); levee segment; levee
system; maintenance; non-Federal flood risk management project;
nonstructural alternatives; operation; rehabilitation; repair;
replacement; responsible State, Tribal, and local interests. In
general, these are terms commonly used by the Corps. Updated
definitions are proposed for Governor, to clarify that the Governor is
the chief executive of a State; and non-Federal Sponsor, to clarify the
applicable types of agreements. The current definition of Federal
project, flood control project, hurricane shore protection project
(HSPP), non-Federal project, repair and rehabilitation are proposed to
be removed as the proposed new and updated definitions would supersede
the content in those existing definitions to provide added granularity
and clarity.
Section 203.13 Federally-recognized Tribal Nations and the Alaska
Native corporations. Minor changes are proposed. There is an exception
proposed for tribes regarding emergency water assistance as the statute
defines such assistance is provided to States. The proposed exception
is required to ensure emergency water assistance may be provided to
tribes, albeit indirectly through the States. In other Public Law 84-99
assistance areas, the Tribal Nations may submit requests for assistance
directly to the Corps.
Section 203.14 Exceptions to policy. An ``exception to policy''
section is proposed in order to ensure flexibility when accomplishing
activities, prescribed in this rule, with complex and/or unforeseen
interdependencies.
Subpart B--Emergency Preparedness
Section 203.21 Emergency preparedness assistance. A new section is
proposed to clarify the purpose of this assistance to Federal, State,
Tribal, and local agenciesTribal, which is to help support their
efforts to prepare for a specific identified storm or forecasted high
water event that may lead to flooding. It also provides examples of
types of emergency preparedness activities.
Section 203.22 Emergency preparedness responsibilities of non-
Federal sponsors. This existing section is being renamed to use
``emergency'' rather than ``disaster'' to identify the broader set of
circumstances and emergency nature of the preparedness responsibilities
of non-Federal sponsors. It is also being renumbered to accommodate the
new section proposed above.
Through experience gained in recent disasters, the Corps has
learned that increased local preparedness capability is crucial to
subsequent natural disaster response and recovery. Changes are proposed
to improve local capability for disaster preparedness and planning,
primarily through technical assistance in support of this goal.
Preparedness planning and training are proposed to be listed as
separate subsections for clarity and emphasis on the respective actions
under the responsibility of the non-Federal sponsor. Floodplain
management and interim risk reduction measures are recognized as a
local reponsibility in this proposed rule. The current subsection on
the Corps Rehabilitation and Inspection Program (RIP) is proposed to be
replaced by the ``Emergency repair, rehabilitation, and restoration
assistance'' subsection to reflect the proposed transition to a risk-
informed eligibility determination. The proposed subsection also
clarifies the actions a non-Federal sponsor must undertake to maintain
eligibility for the Public Law 84-99 Program.
Subpart C--Emergency Operations
Subpart C is proposed to be rearranged for clarity and to eliminate
redundancies with the addition of a new section at Sec. 203.33. Much
of the content remains the same as the current regulation other than
the changes described below.
Section 203.31 General. The title of the section is proposed to be
modified from the existing ``Authority'' to reflect that the section
describes both the authority of the Corps and the responsibilities of
non-Federal sponsors for Emergency Operations. Changes are also
proposed in this section to remove duplicative information already
found in the proposed renumbered Sec. Sec. 203.32 and 203.33.
Section 203.31(b) is being proposed to modify the current
regulation at Sec. 203.31(a), which states that the Corps' flood
response measures are not appropriate for projects which protect
strictly agricultural lands. The new subsection allows for the Corps,
in some cases, to provide such measures for an FRM project that
primarily reduces the flood risk to agricultural lands. This allows for
Corps assistance to be provided in these limited situations and
reflects the contribution of agricultural lands to the national
economy.
Section 203.31(c) is proposed to establish the non-Federal
sponsor's role and responsibilities for certain Emergency Operations
activities. These are not new responsibilities. Rather, the propsoed
changes serve to ensure understanding of the role and responsibilities
of the non-Federal sponsor for those Emergency Operations activities.
Section 203.32 Flood response procedures. Language is proposed and
intended to address coordination with other Federal agencies to ensure
there is appropriate consideration of relevant statutes related to
environmental and cultural resources taking into account the exigency
of the circumstances. This proposed addition recognizes that
environmental and cultural resource protection statutes are applicable
to emergency actions and that coordination with other agencies at the
time of or in advance of the emergency response may be necessary. The
proposed language recognizes the importance of these statutory
requirements and ensures appropriate compliance and coordination
occurs. As proposed, Corps Districts should evaluate their emergency
response portfolio in coordination with other relevant agencies (e.g.,
the National Marine Fisheries Service, the U.S. Fish and Wildlife
Service, or the applicable State Historic Preservation Office) and
their response partners to determine whether programmatic compliance or
establishment of common standard operating procedures in advance of any
[[Page 68390]]
emergency response may be appropriate.
Section 203.33 Post flood response procedures. Minor changes are
proposed to simplify and clarify post flood response policy.
Subpart D--Rehabilitation Assistance for Flood Risk Management Projects
Damaged by Flood
Changes to this subpart title are proposed to incorporate the more
appropriate title ``flood risk management projects'' as opposed to the
formerly used term ``flood control works.'' In addition, the coastal
storms have been removed from the title as coastal storm risk
management is now proposed to be discussed in the revised Subpart E--
Emergency Repair, Rehabilitation, and Restoration Assistance for
Federal Coastal Storm Risk Management (CSRM) projects, to provide
clarity in distinguishing between the FRM and CSRM projects. Lastly,
reference to the Corps' Rehabilitation and Inspection Program is
proposed to be removed from the title to reflect the change in focus of
the program from the RIP to the risk-informed determinations.
As discussed previously, this proposed section introduces revised
criteria for initial and continued eligibility in the Rehabilitation
Program, modifications to existing flood risk management projects, and
the System Wide Improvement Framework (SWIF). By incorporating lessons
learned from recent disasters, the proposed changes will help non-
Federal sponsors improve their flood risk management. Risk-informed
decision making uses an iterative process to reduce risk over time by
identifying the areas of acceptable risk, monitoring the acceptable
risk, and then effectively devoting resources to manage the sources of
unacceptable risk in priority order. The proposed changes in this
subpart will transition from eligibility criteria for rehabilitation
assistance based on an inspection to a risk-informed approach,
primarily based on an evaluation of a broader set of non-Federal
sponsor's risk management activities.
The changes are necessary to encourage broad flood risk management
actions, including establishing investment priorities at the local
level based on risk and cost-effectiveness, and to achieve greater
flexibility to protect and restore natural resources. The proposed
changes also are intended to promote community discussion and
engagement in a broader set of actions to help communities manage flood
risk; and to encourage dialogue and problem solving.
Section 203.41 General. The current section is proposed to be
completely replaced. The changes proposed in this section introduce the
reframing of the current inspection-only program for eligibility
determinations to the updated risk-informed determinations of the
Rehabilitation Program. It outlines both the proposed initial and
continuing eligibility criteria for Federal and non-Federal FRM
projects to include the components required and process for obtaining
an eligibility determination. These proposed changes provide clarity
and transparency to the program.
Section 203.42 Initial eligibility assessment of non-Federal flood
risk management projects. The current section is proposed to be
retitled and completely replaced to be consistent with the proposed
risk-informed approach. Therefore, the proposed language eliminates the
current focus on an inspection-only approach to support the initial
eligibility assessment (IEA) for non-Federal FRM projects in favor of
the risk-informed approach based on a broader assessment. This section
proposes to provide the process for the IEA and outlines the content of
the required initial eligibility application. As proposed, IEAs would
be primarily based on an evaluation of a broader set of non-Federal
sponsor's risk management activities through an initial eligibility
application package and assessment for non-Federal Flood Risk
Management Projects, as opposed to solely through a traditional
inspection. However, the Corps will also conduct a site inspection as
part of the IEA to supplement the application materials received. The
application as proposed would require documentation of the level of
risk reduction provided by the non-Federal FRM project and an
assessment of the expected performance of the project, as well as
documentation of maintenance status and identification of any
deficiencies of the project. Much of the information required in the
proposed application was already included in the current Sec. 203.48
describing the inspection procedures for the Corps. With the focus now
on a broader set of non-Federal sponsor's risk management activities
and a risk-informed decision-making approach, it is appropriate to
incorporate these elements in the proposed application by a non-Federal
sponsor rather than limit them to the Corps' inspection procedures.
Once completed, the assessment is proposed to be provided to the non-
Federal sponsor of the non-Federal FRM project for awareness and
transparency, and a record will also be maintained by the Corps. The
results of the assessment will determine initial eligibility for
emergency repair, rehabilitation, and restoration assistance. The
proposed eligibility criteria would ensure the non-Federal sponsor has
sufficiently demonstrated its project meets the level of function
necessary for inclusion in the Public Law 84-99 program, that the
project will essentially function as designed and intended. The
proposed regulation also provides for the non-Federal sponsor to
provide additional information and request reconsideration of an
assessment if it does not agree with the initial eligibility
determination.
Federal flood risk management projects would be automatically
granted initial eligibility in the Rehabilitation Program under the
proposed language, based upon the provision of notice of construction
completion, similar to the current initial eligibility pathway.
Section 203.43 Continuing eligibility assessment of Federal and
non-Federal flood risk management projects. The current section is
proposed to be completely retitled and replaced to be consistent with
the proposed risk-informed approach, and therefore eliminates the focus
on an inspection-only approach to support the continuing eligibility
assessment (CEA) for Federal and non-Federal FRM projects. The proposed
text in this section provides the procedures and content of required
elements for a CEA. As proposed, the CEA would assess the non-Federal
sponsor's risk management activities through: implementation of its
project Operation, Maintenance, and Inspection Activities; a review of
emergency preparedness planning; and a review of public outreach
activities accomplished to share FRM project condition and performance.
Inspection information would be verified in accordance with their
provided plan. The CEA also would include a review of the participation
for the non-Federal sponsor in past inspections and assessments
conducted by themselves or with the Corps. The CEA would identify
changed project conditions that could impact project performance. The
CEA would also verify that the criteria required for the IEA to
maintain its eligibility are being met. The specific requirements for a
favorable CEA determination would be defined in the project partnership
agreement, O&M manual, or Levee Owner's manual for non-Federal
sponsors. The proposed criteria would demonstrate whether the non-
Federal sponsor has continued to maintain the project to ensure it will
essentially function as designed and intended, and also would include
emergency planning and public
[[Page 68391]]
outreach to ensure it is adequately prepared for an emergency at the
local level. The Corps believes that improved local preparedness
capabilities are crucial to ensure natural disaster preparedness and
planning.
A favorable CEA determination under Sec. 203.43, or continued
progress under an approved system-wide improvement framework under
Sec. 203.50, would be required for the non-Federal sponsor to retain
its eligibility for emergency repair, rehabilitation, and restoration
assistance, which is similar to the current practice.
Section 203.44 Emergency repair, rehabilitation, and restoration of
Federal and non-Federal flood risk management projects. Minor changes
are proposed. The section title is proposed to be modified for updating
to the current terminology of FRM projects and to include both Federal
and non-Federal projects. The proposed language provides the
eligibility requirements for emergency repair, rehabilitation, and
restoration activities, which are the same for Federal and non-Federal
FRM projects. The proposed regulation eliminates inspection ratings,
which are no longer proposed to be used to determine eligibility;
instead, assessments of the previously described activities would be
performed. Also, the proposed text provides that all applicable
environmental compliance requirements must be satisfied to make clear
that even these emergency activities must comply with relevant
environmental statutes. In addition, the proposed rule describes the
non-Federal sponsor's responsibility to provide a share of certain
costs. Lastly, a new subsection is proposed which is moved from its
current location at Sec. 203.46 to clearly articulate the required
economic justification and minimum threshold for construction costs for
emergency repair, rehabilitation, and restoration efforts under the
Pubic Law 84-99 program. An increase is proposed to the minimum repair
cost for the rehabilitation of flood risk management projects from
$15,000 to $50,000 and is necessary to warrant Federal involvement.
Considerations in setting a minimum damage threshold include the Corps'
cost to complete Project Information Reports, experience with the
application of the existing minimum damage threshold, and feedback from
non-Federal sponsors regarding their investments in operation and
maintenance activities. These new clarifications ensure transparency
for the non-Federal sponsor regarding the cost and economic
justifcation requirements to qualify for consideration for assistance.
Section 203.45 Emergency repair, rehabilitation, and restoration of
Federal flood risk management projects. This section in the current
regulation has been combined into one section under proposed Sec.
203.44. In addition, the exception found in the current regulation
regarding certain conditions to cooperation agreements for Federal FRM
projects has been relocated to Sec. 203.114.
Section 203.46 Restrictions. This section is largely unchanged. The
Corps will not generally provide emergency repair, rehabilitation, and
restoration assistance under Public Law 84-99 to address damages by
occurrences other than floods or coastal storms. However, other natural
disasters may impact the structural integrity of a FRM project and
trigger an emergency flooding situations. Those cases are proposed to
be evalauted on a case-by-case basis.
Section 203.47 Modifications to flood risk management projects
during rehabilitation. Changes are necessary to implement provisions
for the authority under Subsection 3029(a) of WRRDA 2014 and Section
1176 of WRDA 2016, which authorize modification to flood risk
management projects under certain conditions. This section proposes to
prescribe how a non-Federal sponsor may request modification of an
existing flood risk management project that is undergoing
rehabilitation under Public Law 84-99 in order to address major
deficiencies or in certain circumstances to increase the level of risk
reduction or pump station capacity.
The proposed section (a) provides the criteria for when the Corps
would consider requests for a modification to address major
deficiencies. It also provides examples of allowable features of
modifications to address major deficiencies, such as incorporating
features to make the overall levee system more durable (e.g., low
sills, riprap, and hardening features), constructing setback levees, or
floodproofing.
The proposed section (b) provides allowances for consideration of a
new set of modifications to increase the pre-flood level of risk
reduction or pump station capacity. New criteria are also proposed for
consideration under these types of modifications.
The proposed criteria in both subsections would ensure that the
modifications are appropriate to undertake through the Public Law 84-99
program. This limitation will ensure the Corps can give continue to
give priority to short-term emergency repairs and to the rehabilitation
and restoration of projects that have sustained extensive damage. Where
a non-Federal sponsor wants to construct major modification of a flood
or coastal storm risk management project after a flood or coastal
storm, the Corps is able to provide technical and planning assistance
outside of the Public Law 84-99 program.
In addition, a new section is proposed to outline the procedures
for a request for modifications to ensure a consistent and transparent
process. Also, new sections are proposed to clarify cost-sharing
requirements with the non-Federal sponsor, to provide the requirement
for modifications to be economically justified, and to clarify that
modifications will not be undertaken under Public Law 84-99 to achieve
a purpose that is not related to flood risk management, as those are
outside the bounds of the intent of Public Law 84-99 program.
Section 203.48 Inspections and risk assessments for flood risk
management projects. Editorial changes and removal of duplicative
information are proposed. For example, inspection activities are now
proposed to be prescribed in Sec. Sec. 203.42 and 203.43 as a
component of the broad set of non-Federal sponsor's risk management
activities and requirements in the IEAs and CEAs and as such can be
removed from this section. Much of the content as described in the
current inspection procedures is now included in the IEA and CEA
descriptions as part of the proposed risk-informed approach for
information to be provided by the non-Federal sponsor.
Section 203.49 Levee Management Guide. The existing Sec. 203.49
(Rehabilitation of hurricane and shore protection projects) is proposed
to be removed in its entirety as the contents are now found in Subpart
E. The existing Sec. 203.50 content on non-structural alternatives is
moved to the proposed Subpart F. The current Sec. 203.51 is now moved
and renumbered as this proposed section. Only minor changes are
proposed for consistency with the proposed changes herein (e.g.,
referring to eligible projects as opposed to ``active'' projects under
the inspection-only RIP).
Section 203.50 System-wide improvement framework. This proposed new
section implements Section 3011 of WRRDA 2014, which provides that a
levee system shall remain eligible for rehabilitation assistance under
Public Law 84-99 as long as the system's non-Federal sponsor(s)
continues to make satisfactory progress under an approved system-wide
improvement framework (SWIF). As proposed, a SWIF is a plan developed
by a non-Federal sponsor(s) and accepted by the Corps to conduct a
[[Page 68392]]
series of improvements to a levee system (or multiple levee systems
within a watershed) to address system-wide deficiencies that are
complex or time-consuming to correct.
The proposed changes ensure committed non-Federal sponsors have the
opportunity to transition their levees over time to Corps standards. By
using a SWIF, non-Federal sponsors can prioritize deficiencies to
address the highest risk first to achieve system-wide risk reduction.
In the requirements for a SWIF, the proposed rule recognizes that some
non-Federal sponsors may also need to engage at the Federal, State, and
local levels to address complex levee system issues in a more long-
term, comprehensive approach to identify solutions that optimize
resources; prioritize improvements and corrective actions based on
risk; and coordinate overlapping or competing programs and
requirements. The Corps also is proposing to expand the use of a SWIF
to maintain the eligibility of these non-Federal sponsors where they
are making progress to correct complex system-wide issues or to address
a complex natural resources issue such as consultation/mitigation
actions for resources subject to the Endangered Species Act or Tribal
treaty rights.
Subpart E--Rehabilitation Assistance for Coastal Storm Risk Management
(CSRM) Projects
Subpart E is proposed to prescribe Rehabilitation Assistance
activities specific to CSRM projects formerly found in Subpart D of the
2003 version of 33 CFR part 203.
Section 203.61 General. Minor changes are proposed to the current
Sec. 203.49(a) to update the terminology from hurricane and shore
protection projects to CSRM projects. In addition, the proposed
language states that the Corps may include modifications to a CSRM
project to address major deficiencies and describes the circumstances
where nonstructural alternatives may be employed.
This proposed revised section clarifies that emergency repair,
rehabilitation, and restoration assistance for Federal CSRM projects
generally is limited to the project's design profile template. However,
at the request of the non-Federal sponsor, the Corps may evaluate
restoration to a pre-storm profile as a restoration alternative where
the pre-storm profile is greater than the design profile template and
is deemed necessary to ensure adequate functioning of the project. The
current regulation text states that the assistance is limited to the
pre-storm condition that allows for adequate functioning of the
project.
This proposed language implements Subsection 3029(a) of WRRDA 2014,
under which the Corps would be able to restore hurricane or shore
protection works to the design level of risk reduction. As proposed,
rehabilitation assistance for CSRM projects generally is limited to the
project's design profile, which is the level of restoration that will
allow for the adequate functioning of the structure. The proposed
language also implements Subsection 1160 of WRDA 2018, which allows
consideration of restoration to the pre-storm profile, which is the
profile that existed the day prior to the storm. In some circumstances,
the pre-storm profile may be greater than the design profile and
restoration to the pre-storm profile may be necessary to ensure
adequate functioning of the project based on project-specific
conditions, such as greater than anticipated erosion rates or as a
result of climate change. The proposed language uses the project's
design profile as the baseline profile for assistance, and also
provides that the Corps may evaluate circumstances when the pre-storm
profile may be more appropriate. In addition, if restoration to the
pre-storm profile is not necessary to ensure adequate functioning of
the project, the proposed language clarifies that the Corps may use
Public Law 84-99 funds to restore a beach to its the pre-storm profile
only if the incremental costs above the costs to restore to the design
profile are subject to the cost-sharing that would apply for periodic
nourishment and the non-Federal sponsor requests the Corps to proceed
on that basis. This would ensure the Corps does not default to and
cover the costs for the restoration to the pre-storm profile where that
exceeds what the Corps views as required for the adequate functioning
of the project.
The proposed language also clarifies that an extraordinary storm is
the event which triggers emergency repair, rehabilitation, and
restoration assistance. A proposed definition for extraordinary storm
is found in Sec. 203.63.
The revised language also proposes to clarify that Federal CSRM
projects would not be eligible for assistance if the non-Federal
sponsor has not established and maintained adequate conditions of
public use and access. This language also clarifies the roles and
responsibilities of the non-Federal sponsor to qualify for Corps
assistance to ensure the Corps is only repairing, rehabilitating, or
restoring. Restoration activities beyond the authorized design profile
or pre-storm condition (where determined appropriate) are considered
beyond the scope of the Public Law 84-99 program.
The proposed language also clarifies conditions for Corps
assistance on Federal CSRM projects located completely or partially
within a unit of the Coastal Barrier Resources System, focusing on
whether or not an exception to a statutory limitation on Federal
expenditures within the System has been provided.
Section 203.62 Non-Federal sponsor responsibilities for CSRM
projects. Clarification of non-Federal Sponsor roles and
responsibilities are proposed in this new proposed section.
Section 203.63 Emergency repair, rehabilitation, and restoration of
Federal CSRM projects. This proposed section includes the proposed
definition of ``extraordinary storm,'' which entails minor
modifications to the existing definition found at Sec. 203.49(b)(6).
Proposed modifications include removing the specific category of storm
or exceedance frequency required to meet the term, but retains a
finding that an extraordinary storm event is the cause of the
substantial damage to a Federal CSRM project, such that it no longer
provides significant risk reduction benefits. The key terms further
proposed to be defined relate to the ``duration or severity'' and the
``substantial damage'' incurred. The Corps has found over the 18 years
since the regulation was last promulgated that limiting the term of
``duration or severity'' to specific criteria of a particular category
of storm event, for example, did not always correlate to the damage
caused. For example, lower category repetitive storms within a short
period of time may combine to have a greater effect than a single
higher category storm. In addition, criteria are proposed for
identifying when ``substantial damage'' has been incurred, some of
which are carried forward from the current regulation with
modifications to modernize costs. New criteria are also proposed with
respect to ``substantial damage'', based on the Corps' experience in
implementing the program, such as where only hard structural features
of the project were damaged. One new subsection is proposed to be
consistent with other aspects of the program, by including a
requirement for the rehabilitation to be economically justified. The
proposed rule also clarifies that Corps assistance under the Public Law
84-99 program is available for a Federal CSRM project only if an
extraordinary storm significantly compromised the project's ability to
provided risk reduction.
[[Page 68393]]
Section 203.64 Modifications to CSRM projects undergoing
rehabilitation. The proposed changes implement Subsection 3029(a) of
WRRDA 2014. This section prescribes how a non-Federal sponsor may
request modification of an existing coastal storm risk management
project as part of the emergency repair, rehabilitation, and
restoration of the project under Public Law 84-99. As proposed, a
modification is a work effort that consists of the addition of new
features, elements, components, or items, or the upgrading of existing
ones, which would improve the structural integrity of the project, but
would not increase its level of risk reduction or have the effect of
expanding the area for which the project is effective in reducing the
coastal storm risk. The scope of modifications, as proposed, ensures
the Corps can effectively perform short-term emergency repairs. This
section maintains consistency, to the extent practicable, with previous
discussions of modifications to FRM projects.
Subpart F--Nonstructural Alternatives to Rehabilitation of Flood Risk
Management and Coastal Storm Risk Management Projects
The content for this proposed subpart is currently found in Sec.
203.50 but is proposed to be included as a separate subpart for clarity
and ease of reference. The separate subpart also allows for more
focused discussion of the nonstructural alternatives (NSAs) and how
they may be applied for both FRM and CSRM projects. This proposed
subpart replaces the current subpart F for ``Advanced Measures,'' which
is now proposed in subpart I.
Section 203.71 General. This proposed section implements Subsection
3029(a) of WRRDA 2014 and provides for the consideration of NSAs in
lieu of the repair and restoration of projects. As proposed, the Corps
may implement nonstructural alternatives to the rehabilitation, repair,
or restoration of flood or coastal storm risk management projects at
the request of the non-Federal sponsor, which may include efforts to
restore or protect natural resources, including streams, rivers,
floodplains, wetlands, or coasts, if those efforts are related to
achieving a reduction in the flood or coastal storm risk. The proposed
section carries forward the Corps' existing policy regarding NSAs with
minor changes.
A requirement for an amendment to the project partnership agreement
(PPA) is proposed to be included. This ensures the PPA is updated to
reflect the changes of including NSAs in the project to ensure the PPA
is consistent with the current state of the project.
Another proposed change is to include more specificity as to when
exceptions to the limitation on Corps expenditures may be approved. The
current regulation provides that the limitation may be waived when
compelling reasons exist but does not provide examples or criteria of
what such compelling reasons may be. The proposed regulatory text
provides specific criteria for when such exceptions may be approved for
improved public awareness and transparency in the process.
Subpart G--Emergency Drinking Water Assistance: Contaminated Water
Source
The content for this proposed subpart is currently found in subpart
E but is proposed to be moved to this subpart for organizational
purposes as a result of edits made to other subparts. This proposed
subpart replaces the current subpart G for ``Local Interests/
Cooperation Agreements,'' which is now proposed in subpart J. The
subpart title is proposed to be renamed from the current ``Emergency
Waters Supplies: Contaminated Water Sources and Drought Assistance'' to
reflect the specific focus of this proposed subpart on the emergency
drinking water assistance. The ``Drought Assistance'' topic is proposed
to be covered in a new separate subpart at subpart H. This allows for
improved clarity and discussion on these separate assistance efforts
provided under the Public Law 84-99 program. The proposed subpart G
carries forward the Corps' existing policy regarding drinking water
assistance in response to contaminated water sources with minor
changes.
Section 203.81 General. Minor changes are proposed for improved
readability. The duration of assistance is now proposed to be included
in Sec. 203.82 but maintains the current text with minor changes for
clarity.
Section 203.82 Eligibility criteria and procedures. This proposed
section proposes minor clarifying changes to the eligibility criteria
and procedures contained in the existing subpart E. For example, a
Tribal official, in addition to a Governor, may request assistance
under this section. The proposed section also clarifies that a
Cooperation Agreement (CA), as described in subpart J, is required for
Corps assistance under this section.
Subpart H--Drought Assistance
The content for this proposed subpart is currently found in subpart
E but is proposed to be moved to this subpart for organizational
purposes as a result of edits made to other subparts. This proposed
subpart adds a new subpart to the CFR. The subpart title is proposed to
be renamed from the current ``Emergency Waters Supplies: Contaminated
Water Sources and Drought Assistance'' to reflect the specific focus of
this proposed subpart on drought assistance. This allows for improved
clarity and discussion on this distinct assistance effort provided
under the Public Law 84-99 program. The proposed subpart H carries
forward the Corps' existing policy regarding drought assistance with
minor changes.
Section 203.91 General. Minor changes are proposed for readability.
In addition, the proposed language designates the Corps Deputy
Commanding General for Civil and Emergency Operations as the official
who designates a drought distressed area. The definitions included in
the current regulation text at Sec. 203.62 are proposed to be included
in this section.
Section 203.92 Eligibility criteria and procedures. Editorial and
clarifying changes are proposed. For example, a Tribal official may
request assistance directly under this section, without a requirement
to make this request through the Governor of the State in which the
Tribal lands are located, as is currently provided in the existing
regulation text. This proposed section also includes the contents of
the written request, which now are provided in Sec. 203.62. This
section also proposes that a CA is required for Corps assistance, which
is consistent with CA requirements proposed for other Corps assistance
efforts provided under this program. In addition, this section proposes
to provide clarity and transparency to the responsibilities of the non-
Federal sponsor for drought assistance under this section.
Subpart I--Advance Measures
The content for this proposed subpart is currently found in subpart
F but is proposed to be moved to this subpart for organizational
purposes as a result of edits made to other subparts. This proposed
subpart adds a new subpart to the CFR. The proposed subpart I carries
forward the Corps' existing policy regarding advance measures with
minor changes.
Section 203.101 General. Minor clarifying changes are proposed. The
primary proposed modification is to allow a Tribal official, in
addition to a Governor, to request assistance under this section.
Section 203.102 Eligibility criteria and procedures. Minor changes
are proposed for clarity and readability.
[[Page 68394]]
Subpart J--Cooperation Agreements
The content for this proposed subpart is currently found in subpart
G but is proposed to be moved to this subpart for organizational
purposes as a result of edits made to other subparts. This proposed
subpart adds a new subpart to the CFR. The proposed subpart J carries
forward the Corps' existing policy regarding cooperation agreements
with minor changes. The title is proposed to be modified from the
current, ``Local Interests/Cooperation Agreements'' to only include
``Cooperation Agreements'' for clarity on the specific focus of this
section on the cooperation agreements and to eliminate unnecessary
text.
Section 203.111 General. Minor changes and removal of duplicative
information are proposed for improved readability.
Section 203.112 Non-Federal sponsor requirements. Minor changes and
additional non-Federal sponsor requirements are proposed regarding
consideration of the non-Federal sponsor's prior performance
capability. In addition, elements of local cooperation required for
asssistance provided under Subpart C are proposed.
Section 203.113 Funds and cost sharing. Minor changes are proposed
for improved clarity. In addition and as proposed, assistance provided
under Subpart I in which ``permanent construction standards'' are
applied would be now subject to a 35 percent non-Federal cost share.
Cost share requirements are also proposed when accomplishing
modification activities to flood or coastal storm risk management
projects under Subparts D and E. These proposed changes are consistent
with the cost-sharing for this type of work under other Corps Civil
Works authorities. The proposed changes also implement provisions for
the authority under Subsection 1161(a) of WRDA 2018 in which a non-
Federal sponsor may contribute funds for all costs in excess of
benefits and subject to the conditions outlined in Sec. 203.113 of
this proposed rule. Subsection 1161(b) of WRDA 2018 is not addressed in
this proposal due to the sunset provision of that authorization.
Instead, the Corps will continue to implement this provision through
existing guidance (``Implementation Guidance for Section 1161 of the
Water Resources Development Act of 2018, Cost and Benefit Feasibility
Assessment, dated 12 April 2019.)
Section 203.114 Project partnership agreements. Minor changes are
proposed for improved clarity and readability.
Section 203.115 Procedures and responsibilities upon completion of
Corps work. Minor changes are proposed for improved clarity and
reability.
Expected Benefits and Costs of Proposed Changes
Over time, cities and towns have developed behind levees and along
our coasts, and the nature of the risk posed by the movement of water
in a flood or storm in our rivers, lakes, and coasts has changed due to
a variety of factors (e.g., more stormwater runoff due to development,
building of upstream dams, and climate change). As such a standards-
only-based approach (i.e., focus on the condition of the levee or beach
only) may not address some of the sources of unacceptable risk. For a
programmatic perspective, of the nearly 6,600 miles of levees currently
in the Rehabilitation Program, 4,850 miles are Federal levees
(federally authorized and constructed, but locally owned, operated, and
maintained) and 1,750 miles are non-Federal levees (locally
constructed, and locally owned, operated, and maintained). Overall, the
changes to this regulation will provide greater flexibility to the
Federal government and non-Federal sponsors and improve the
effectiveness of Federal and local investments in riverine and coastal
projects. These proposed changes take advantage of our increased
understanding of project risks, moving from an assessment of how the
project is expected to perform to a focus on a broader set of actions
to reduce risk through effective operation, maintenance, planning, and
execution actions; and to improve emergency warning and evacuation, and
the ability of communities and individuals to understand and manage
project-related risks. Informed by more detailed understanding of risk
for flood risk management projects, the Federal government and non-
Federal sponsors are able to apply available resources to the risk
management activities that most effectively reduce flood risk and avoid
expenditures that have little risk reduction benefit.
Changes reflected in this proposed rule are aimed at encouraging
and enabling emergency managers, local officials, and members of the
public to identify risks where loss of life may occur, and to prepare
for actions when needed to move people out of harm's way. Non-Federal
sponsors may see an initial cost increase associated with documenting
activities necessary for eligibility for the Rehabilitation program,
however the assessment and risk management activities are activities
already required as non-Federal sponsors and will likely result in
efficient use of available resources.
The Corps uses the funds appropriated in its Flood Control and
Coastal Emergencies account to pay for most of its costs for the work
covered by this rule. Over a recent 10-year period--from fiscal year
(FY) 2012 through FY 2021--the Corps spent an average of roughly $307
million per year from this account on the Public Law 84-99 program. The
Corps uses most of this funding to repair damaged flood and coastal
storm risk management projects.
The Corps also uses funds appropriated in its Operation and
Maintenance account to pay a portion of the work used as data for
eligibility determinations, outlined in this proposed rule. For
example, the Corps spends an average of roughly $30 million per year to
inspect locally owned levee systems that the Congress has authorized as
a Corps project.
We anticipate the costs to the Federal government to implement this
program to remain roughly the same under the proposed rule.
Incorporation of Public Comments
The Corps received input from State and Federal agencies,
stakeholders, and other interested parties through the issuance of an
Advanced Notice of Proposed Rulemaking (ANPR). The ANPR was published
in the Federal Register on February 13, 2015 (80 FR 8014; Federal
Register Document #2015-03033) soliciting public comment on specific
policy revision concepts being considered for this proposed rulemaking.
In response to the ANPR, we received 267 comments from 47 organizations
and individuals. Of the 47 submissions, 23 were from non-Federal
sponsors who contributed almost half (173) of all comments received.
The remaining comments were received from eight individuals, five
associations, four Tribal nation organizations, and four State
government agencies. Overall, the comments were generally supportive of
the policy revision concepts outlined in the ANPR and recognized the
value of using risk-informed approaches for decision making. There was
widespread support among commenters for continuing the System-wide
Improvement Framework (SWIF) policy. Several commenters indicated some
concerns about the proposed concepts and how they may impact non-
Federal sponsors. Commenters noted that the collaboration and
flexibility provided by this framework positively contributed to good
decision making, however several said that the current two-year
timeframe
[[Page 68395]]
under the current SWIF policy was too short. There was a perception
among commenters that the Corps would be deemphasizing the role and use
of inspections for eligibility determinations and commented that
continuing these inspections was important. Other Federal agencies
mentioned the need for compliance with all applicable statutes. We have
carefully considered all of these comments in developing the proposed
rule.
References
For additional information, see the following references:
33 CFR part 203 (68 FR 19359)
Engineer Regulation 500-1-1, ``Civil Emergency Management Program,''
September 30, 2001 Engineer Pamphlet 500-1-1, ``Civil Emergency
Management Program Procedures,'' September 30, 2001
Engineering and Construction Bulletin, ``Interim Risk Reduction
Measures (IRRMs) for Levee Safety,'' March 5, 2014
Levee Owner's Manual for Non-Federal Flood Control Works, March 2006
Memorandum, CECW-HS, 29 November 2011, subject: Policy for
Development and Implementation of System-Wide Improvement Frameworks
(SWIFs)
Memorandum, CECW-HS, 21 March 2014, subject: Interim Policy for
Determining Eligibility Status of Flood Risk Management (FRM)
Projects for the Rehabilitation Program Pursuant to Public Law
(P.L.) 84-99
Memorandum, CECW-HS, 30 May, 2017, Subject: Implementation Guidance
for Section 3029(a)(2) of the Water Resources Reform and Development
Act (WRRDA) of 2014, Emergency Response to Natural Disasters; Repair
or Restoration of Coastal Storm Risk Management Projects to Design
Level of Protection
Procedural Requirements
a. Review under the National Environmental Policy Act. As required
by the National Environmental Policy Act (NEPA), the Department of Army
prepares appropriate environmental analysis for its activities
affecting the quality of the human environment. We have preliminarily
determined that this proposed revision to the regulation, if finalized,
would not constitute a major Federal Action significantly affecting the
quality of the human environment because the part 203 regulations
require that the Corps conduct an action-specific NEPA analysis before
undertaking any activities that could potentially affect the quality of
the human environment. The draft Environmental Assessment to support
this preliminary determination is available at http://www.regulations.gov for public comment. The preliminary determination
that an Environmental Impact Statement (EIS) will not be required for
the promulgation of these regulations will be reviewed in consideration
of the comments received.
b. Unfunded Mandates Reform Act. The Unfunded Mandates Reform Act
does not apply to this proposed rule because this rule provides policy
for emergency assistance at the request of any State, Tribal, local
government, or non-Federal sponsor. The Corps has also found, under
section 203 of the Act, that small governments will not be
significantly and uniquely affected by this rulemaking.
c. National Technology Transfer and Advancement Act. This proposed
rule does not involve technical standards and as such there is no
anticipated requirements under this Act.
d. Executive Order 12866. Executive Order 12866 (58 FR 51735,
October 4, 1993), defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Tribal, or local governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This rule has been found to be a significant regulatory action,
because it raises novel policy issues in how the Corps implements its
Natural Disaster Procedures. Accordingly, the rule was submitted to the
Office of Management and Budget (OMB) for review.
e. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This
proposed rule does not impose any information collection requirements
for which Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act is required.
f. Executive Order 13132: Federalism. This rule will not have
substantial direct effects on the states, the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government.
g. Regulatory Flexibility Act. The Regulatory Flexibility Act
(RFA), as amended (5 U.S.C. 601 et seq.) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of the proposed rule on small entities, a
small entity is defined as: (1) A small business based on SBA size
standards; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district, or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. The U.S. Army Corps of Engineers
certifies that this proposed revision to the regulation does not have a
significant economic impact on a substantial number of small entities.
The proposed modifications to the regulation, and the regulation as a
whole, do not place any regulatory burdens on small entities or have a
significant economic impact on such entities. The regulation merely
provides a construct under which the Corps can provide limited forms of
emergency assistance and project rehabilitation to State, local, and
Tribal governments upon request from the same. Although small entities
might benefit from such emergency assistance--just as large entities
and private individuals might--the provision of such assistance under
the regulation does not place any burden on small entities nor does it
entail direct involvement by such entities.
h. Congressional Review Act (5 U.S.C. 801 et seq.). Pursuant to the
Congressional Review Act, this proposed rule has not been designated a
major rule, as defined by 5 U.S.C. 804(2). This proposed rule is not a
``major rule'' as defined by 5 U.S.C. 804(2), because it is not likely
to result in: (1) An annual effect on the economy of $100,000,000 or
more; (2) a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; or (3) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of the United
States-based enterprises to compete with foreign-
[[Page 68396]]
based enterprises in domestic and export markets.
i. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments. Under Executive Order 13175, the Federal government
may not issue a regulation that has substantial, direct effects on one
or more Tribal Nation, on the relationship between the Federal
government and Tribal Nation, or on the distribution of powers and
responsibilities between the Federal government and Tribal Nations, and
imposes substantial direct compliance costs on those communities, and
that is not required by statute, unless the Federal government provides
the funds necessary to pay the direct compliance cost incurred by the
Tribal Nation governments, or we consult with those governments. If
complying by consulting, Executive Order 13175 requires us to provide
the Office of Management and Budget, in a separately identified section
of the preamble to the rule, a description of the extent of prior
consultation with representatives of affected Tribal Nation
governments, a summary of the nature of Tribal Nation concerns, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 13175 requires that agencies develop an effective
process permitting elected officials and other representatives of
Tribal Nation governments an opportunity to provide timely input in the
development of regulatory policies on matters that significantly or
uniquely affect their communities. This proposed revision to the
regulation, and the regulation as a whole, do not impose significant
compliance costs on any Tribal Nation or otherwise have substantial
direct effects on the same. The regulation merely provides a construct
under which the Corps can provide limited forms of emergency assistance
and project rehabilitation to State, Tribal, and local governments upon
request from the same. Whether the Corps provides emergency assistance
under the regulation is completely at the discretion of State, local
and Tribal governments. When requested, and otherwise permissible, the
Corps' provision of such services does not affect the distribution of
power or responsibilities between the Federal government and Tribal
Nations. In the event that Tribal Nations have concerns with the
proposed regulation, they may submit them through the normal comment
process or to request government-to-government consultation.
List of Subjects in 33 CFR Part 203
Disaster assistance, Flood control, Intergovernmental relations,
Technical assistance, Water resources.
Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
Accordingly, for the reasons set out in the preamble, 33 CFR part
203 is proposed to be revised as follows:
PART 203--NATURAL DISASTER PROCEDURES: PREPAREDNESS, RESPONSE, AND
RECOVERY ACTIVITIES OF THE CORPS OF ENGINEERS
Sec.
Subpart A--Introduction
203.11 General.
203.12 Definitions.
203.13 Federally-recognized Tribal Nations and the Alaska Native
corporations.
203.14 Exceptions to policy.
Subpart B--Emergency Preparedness
203.21 Emergency preparedness assistance.
203.22 Emergency preparedness responsibilities of non-Federal
sponsors.
Subpart C--Emergency Operations
203.31 General.
203.32 Flood response procedures.
203.33 Post flood response procedures.
Subpart D--Emergency Repair, Rehabilitation, and Restoration Assistance
for Flood Risk Management Projects Damaged by Flood
203.41 General.
203.42 Initial eligibility assessment of non-Federal flood risk
management projects.
203.43 Continuing eligibility assessment of Federal and non-Federal
flood risk management projects.
203.44 Emergency repair, rehabilitation, and restoration of Federal
and non-Federal flood risk management projects.
203.46 Restrictions.
203.47 Modifications to flood risk management projects undergoing
emergency repair, rehabilitation, and restoration.
203.48 Inspections and risk assessments for flood risk management
projects.
203.49 Levee guide.
203.50 System-wide improvement framework.
Subpart E--Emergency Repair, Rehabilitation, and Restoration Assistance
for Federal Coastal Storm Risk Management Projects
203.61 General.
203.62 Non-Federal sponsor responsibilities for Federal CSRM
projects.
203.63 Emergency repair, rehabilitation, and restoration of Federal
CSRM projects.
203.64 Modifications to Federal CSRM projects undergoing emergency
repair, rehabilitation, and restoration.
Subpart F--Nonstructural Alternatives to Emergency Repair,
Rehabilitation, and Restoration of Flood Risk Management and Federal
Coastal Storm Risk Management Projects
203.71 General.
Subpart G--Emergency Drinking Water Assistance: Contaminated Water
Source
203.81 Authority and policy.
203.82 Eligibility criteria and procedures.
Subpart H--Drought Assistance
203.91 Authority and policy.
203.92 Eligibility criteria and procedures.
Subpart I--Advance Measures
203.101 General.
203.102 Eligibility criteria and procedures.
Subpart J--Local Interests/Cooperation Agreements
203.111 General.
203.112 Non-Federal sponsor requirements.
203.113 Funds and cost sharing.
203.114 Project partnership agreements.
203.115 Procedures and responsibilities upon completion of emergency
repair, rehabilitation, and restoration work.
Authority: 33 U.S.C. 701n.
Subpart A--Introduction
Sec. 203.11 General.
(a) This part prescribes the regulations implementing the authority
of the United States Army Corps of Engineers (Corps) to undertake
natural disaster preparedness, response, and recovery pursuant to
Public Law 84-99, as amended (33 U.S.C. 701n). In implementing this
authority, the Corps sets priorities on a risk-informed basis.
(b) Section 5 of the Flood Control Act of 1941, as amended (33
U.S.C. 701n), commonly and hereinafter referred to as Public Law 84-99,
authorizes an emergency fund to be expended at the discretion of the
Chief of Engineers for: preparation for natural disasters; flood
fighting and rescue operations; repair or restoration of flood risk
management projects threatened, damaged, or destroyed by flood, and
modifications or nonstructural alternatives thereto; emergency
protection of federally authorized coastal storm risk management
projects which are threatened, when such protection is warranted to
protect against imminent and substantial loss of life and property;
repair and restoration of federally authorized coastal storm risk
management projects damaged or destroyed by wind, wave, or water of
other than ordinary nature or modifications to the structure or project
to address major deficiencies; for emergency dredging for restoration
of authorized project depths for Federal navigable channels and
waterways made necessary by flood, drought,
[[Page 68397]]
earthquake, or other natural disasters; and, for a period of 10 days
subsequent to the end of a flood event, certain limited activities
which are essential for the preservation of life and property, or to
protect against significant threats to public health and welfare. The
law also authorizes the Chief of Engineers to provide emergency
supplies of clean water when a contaminated source threatens the public
health and welfare of a locality and authorizes the Secretary of the
Army to construct wells and transport water to areas determined to be
drought distressed. For the purposes of provision of emergency supplies
of clean water due to drought, the Secretary of the Army has delegated
the authority vested in the Secretary under Public Law through the
Assistant Secretary of the Army for Civil Works to the Chief of
Engineers.
(c) Form of assistance. The Corps implements the authority provided
in Public Law through the provision of direct assistance to responsible
State, Tribal, and local interests. Direct assistance to individual
homeowners, individual property owners, or individual businesses is not
permitted. Except as provided in Sec. 203.71(l)(9) of this part, the
Corps does not transfer Federal funds to non-Federal sponsors or other
responsible State, Tribal, or local interests for the non-Federal
performance of assistance activities described in this part.
(d) Availability of assistance. Except as provided in Sec.
203.91(b)(2) of this part, the provision of Public Law 84-99 assistance
is predicated upon a finding that similar assistance is not reasonably
available to responsible State, Tribal, and local interests from other
Federal agencies.
Sec. 203.12 Definitions.
The following definitions are applicable throughout this part:
Coastal storm. Hurricane and abnormal tide flooding.
Coastal storm risk management (CSRM) project. A project designed,
constructed, operated, and maintained to reduce the risk of damage to
property and public infrastructure, and the risk of loss of life, from
the non-riverine impacts of a coastal storm. These impacts generally
result from a combination of wave action, storm surge, wind, and tidal
effects during the storm. CSRM projects include Coastal Storm Damage
Reduction (CSDR) projects, Hurricane/Shore Protection Projects
(HSPP's), shore protection projects, shore protection structures,
periodic nourishment projects, and similar terms. A CSRM project may
include both structural measures (e.g., seawalls and jetties) and
natural and nature-based features (e.g., dunes and beach berms).
Emergency repair, rehabilitation, and restoration. Activities to
repair, rehabilitate, rebuild, or replace a project after it has been
damaged by a flood or coastal storm. Such activities may include
realigning segments of a FRM project in which substantial cross-
sectional damage has occurred when the Corps determines that
realignment would cost less or be more effective than an in-line
repair.
Federal coastal storm risk management (CSRM) project. A CSRM
project operated and maintained by a non-Federal sponsor that was
designed and constructed by the Corps or the non-Federal sponsor under
Federal erosion control or water resources development authorities. A
CSRM project, or portion of such a project, constructed by a non-
Federal sponsor is considered a Federal CSRM project only if the non-
Federal sponsor carried out construction in compliance with applicable
authorities for non-Federal construction of water resources development
projects, such as section 204 of the Water Resources Development Act of
1986 (33 U.S.C. 2232) or section 221(a)(4) of the Flood Control Act of
1970 (42 U.S.C. 1962d-5b(a)(4)).
Federal flood risk management (FRM) project. A flood risk
management (FRM) project that was designed and constructed by the Corps
or the non-Federal sponsor under Federal flood control or water
resources development authorities. A FRM project, or portion of such a
project, constructed by a non-Federal sponsor is considered a Federal
FRM project only if the non-Federal sponsor carried out construction in
compliance with applicable authorities for non-Federal construction of
water resources development projects, such as section 204 of the Water
Resources Development Act of 1986 (33 U.S.C. 2232) or section 221(a)(4)
of the Flood Control Act of 1970 (42 U.S.C. 1962d-5b(a)(4)).
Flood risk management (FRM) project. A project designed,
constructed, operated, and maintained to reduce the risk of damage to
property and public infrastructure, and the risk of loss of life, from
flooding.
Governor. The chief executive of a State. All references to the
``Governor'' or ``Governor of a State'' in this part also refer to the
Governors of United States commonwealths, territories, and possessions;
and to the Mayor of Washington, DC.
Tribal Nation (Federally recognized Indian tribe or Tribal
organization). An Indian or Alaska Native tribe, band, nation, pueblo,
village, or community that the Secretary of the Interior acknowledges
to exist as an Indian tribe pursuant to the Federally Recognized Indian
Tribe List Act of 1994, 25 U.S.C. 5130.
Interim risk reduction measure (IRRM). Actions that can be taken to
reduce flood risks posed by a flood risk management project while long-
term solutions are being pursued.
Lands, easements, rights-of-way, relocations, and disposal/borrow
sites (LERRDs). For a project or other assistance activity, the
required lands, easements, and rights-of-way, including those required
for borrow or disposal of dredged or excavated material; facility and
utility relocations; and improvements to land necessary to enable the
disposal of dredged or excavated material.
Levee segment. A discrete physical portion of a levee system that
is managed by a single non-Federal sponsor.
Levee system. A manmade barrier and ancillary drainage and
conveyance facilities, managed by one or more non-Federal sponsors,
that together function to reduce the risk that flood waters will
inundate the leveed area during flood events.
Maintenance. Short-term activities, normally accomplished at least
annually, such as vegetation management and control of burrowing
animals; and longer-term activities, such as repair, replacement, or
rehabilitation of the project and its structural components. All of
these activities are necessary for the proper care and efficient
operation of an FRM or CSRM project.
Non-Federal flood risk management (FRM) project. A FRM project that
is not a Federal FRM project. The term may include a project
constructed by the Works Progress Administration; a project constructed
by, or under a program administered by, a Federal agency other than the
Corps; or a project constructed under Federal emergency disaster
authorities, including Public Law 84-99 or the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C.
5121, et seq.) (hereinafter referred to as the Stafford Act).
Non-Federal sponsor. A legally constituted public body with full
authority and capability to perform the terms of the applicable
agreement with the Corps and to pay damages, if necessary, in the event
of its failure to perform. For Federal CSRM and Federal FRM projects,
the applicable agreement is generally the Project Partnership
[[Page 68398]]
Agreement required by section 221(a)(1) of the Flood Control Act of
1970 (42 U.S.C. 1962d-5b(a)(1)). For non-Federal FRM projects, the
applicable agreement is the Cooperation Agreement for the provision of
Public Law 84-99 assistance detailed in subpart J of this part. A non-
Federal sponsor may be a State, county, city, town, federally
recognized Tribal Nation or Tribal organization, Alaska Native
corporation, any political subdivision of a State, or a group of
States.
Nonstructural alternative. A measure or combination of measures
that reduces human exposure or vulnerability to a flood or coastal
storm without altering the nature or extent of the flooding. A
nonstructural alternative may include efforts to restore or protect
natural resources, including streams, rivers, floodplains, wetlands, or
coasts, if those efforts will also reduce flood risk.
Operation. Activities that are necessary for the safe and efficient
functioning of a project to produce the benefits set forth in the
project authorization. Operation includes exercising closure
structures, providing information about the condition of the project to
the public, and risk communication efforts.
Rehabilitation. Activities that are necessary to bring a damaged or
deteriorated project back to its original condition.
Repair. Activities of a routine or non-routine nature that are
necessary periodically to maintain a project in a well-kept condition.
Replacement. Activities undertaken when the project, or a worn-out
feature or component of the project, is replaced.
Responsible state, tribal, and local interests. Non-Federal
sponsors and State executive agencies, Tribal organizations, and
offices of political subdivisions of the State with responsibility for
disaster preparedness and emergency management within their respective
jurisdictions.
Tribal official. The elected or duly appointed official of a Tribal
Nation that may request assistance on behalf of the Tribal Nation.
Sec. 203.13 Federally-recognized Tribal Nations and the Alaska
Native corporations.
Except as provided in Sec. 203.92(a), all requests/for Public Law
84-99 assistance on Tribal lands held in trust by the United States, or
on lands of the Alaska Natives, may be submitted to the Corps directly
by the affected Federally recognized Tribal Nation or Alaska Native
corporation, or through the appropriate regional representative of the
Bureau of Indian Affairs, or through the Governor of the State where
such lands are located.
Sec. 203.14 Exceptions to policy.
Exceptions to any regulation or policy contained in this part may
be requested by a non-Federal sponsor or responsible State, Tribal, or
local interest. Exceptions must be requested in writing and will be
reviewed and approved by the Corps Director, Contingency Operations and
Office of Homeland Security.
Subpart B--Emergency Preparedness
Sec. 203.21 Emergency preparedness assistance.
Public Law 84-99 authorizes an emergency fund for use in
preparedness for emergency response to any natural disaster. The Corps
may provide technical assistance to responsible State, Tribal, and
local interests upon request to help support their efforts to prepare
for a specific identified storm or forecasted high water event that may
lead to flooding. Generally, the Corps will provide this technical
assistance to support State, Tribal, and local efforts to inspect the
condition of their FRM or Federal CSRM projects within their respective
jurisdictions before an approaching flood or coastal storm to identify
potential areas of vulnerability, and for related flood fight
preparedness and training activities related to the expected flooding.
Emergency preparedness activities include coordination, planning,
training and conducting exercises with other Federal agencies and
responsible State, Tribal, and local interests. These activities are to
both lend expertise and to gain a greater understanding of State,
Tribal, and local needs and requirements in order to mitigate against
natural disasters as well as reduce impacts from future floods or other
identified hazards. Technical assistance to support specialized studies
or to develop long-term options for managing flood risks is beyond the
scope of this emergency preparedness assistance.
Sec. 203.22 Emergency preparedness responsibilities of non-Federal
sponsors.
Assistance under Public Law 84-99 is intended to supplement the
maximum efforts of responsible State, Tribal, and local interests.
Assistance will not be provided when responsible State, Tribal, and
local interests have made insufficient efforts to prepare for the flood
event or other emergency, or when a request for assistance is based
entirely on a lack of fiscal resources with which to respond to the
flood event or other emergency. State, Tribal, and local interests'
responsibilities include the following:
(a) Operation and maintenance of FRM and Federal CSRM projects. FRM
and Federal CSRM projects must be operated and maintained by non-
Federal sponsors.
(b) Preparedness planning. Responsible State, Tribal, and local
interests must ensure that appropriate and current plans are in place
and ready to be implemented in the event of disaster. Considerations
for these plans may include emergency operations procedures, updated
contact information, identification of known problem areas that may
need to be addressed, and public notification procedures.
(c) Procurement/stockpiling. Responsible State, Tribal, and local
interests must procure and stockpile sandbags, pumps, and other
materials or equipment that might be needed during flood or coastal
storm events. The Corps will provide assistance when the resources of
responsible State, Tribal, and local interests are exhausted. Local
interests must request such materials from State assets prior to
seeking Corps assistance.
(d) Training. Responsible State, Tribal, and local interests must
train personnel to operate, maintain, and patrol FRM and Federal CSRM
projects during crisis situations (e.g., floods, storms, ice jam
conditions).
(e) Floodplain management. Responsible State, Tribal, and local
interests must develop and implement floodplain management plans that
comply with federal, state, and local policy for management of
activities in the floodplain intended to reduce loss of life, injuries,
damage to property and other impacts associated with flooding.
(f) Emergency repair, rehabilitation, and restoration assistance.
To be eligible for emergency repair, rehabilitation, and restoration
assistance under Public Law 84-99, non-Federal sponsors of FRM and
Federal CSRM projects must take those actions necessary to maintain
eligibility detailed in subparts D and E of this part.
(g) IRRMs. Non-Federal sponsors are responsible for implementing
IRRMs.
Subpart C--Emergency Operations
Sec. 203.31 General.
(a) Emergency operations assistance under Public Law 84-99 is
intended to supplement the efforts of responsible State, Tribal, and
local interests. Assistance is limited to temporary activities and
measures necessary to meet the immediate threat and to preserve life
and property. Assistance
[[Page 68399]]
may include Corps assumption of control over the management and
coordination of emergency operations; however, legal liability remains
with the responsible State, Tribal, or local interests. Emergency
operations assistance under Public Law 84-99 consists of direct
assistance during the flood response and post flood response phases.
(1) Flood response. Flood response assistance may include the
provision of technical advice and assistance, performance of flood
fighting activities, the procurement and issuance of flood fighting
supplies and equipment (e.g., sandbags, lumber, polyethylene sheeting,
and pumps), the lending of Federally owned equipment, performance of
rescue operations, and installation of temporary emergency measures to
strengthen FRM and Federal CSRM projects where no other federal
emergency flood fighting authority exists. Assistance may be provided
using emergency contracting procedures.
(2) Post flood response. Post flood response assistance may include
the provision of technical advice and assistance; cleaning of drainage
channels, bridge openings, or structures blocked by debris deposited
during a flood event, when the immediate threat of flooding of or
damage to public facilities has not abated; removal of debris blockages
of critical water supply intakes and sewer outfalls; clearance of the
minimum amounts of debris necessary to reopen critical transportation
routes or public facilities and services; and other activities intended
to reduce the risk of imminent loss of life or significant damage to
public property, or to protect against significant threats to public
health and welfare. The Corps may use its Public Law 84-99 authority to
furnish post flood response assistance for a period not to exceed 10
days from the date of the request of the Governor or Tribal official to
the Federal Emergency Management Agency (FEMA) for an emergency or
disaster declaration under authority of the Stafford Act.
(3) Rescue Operations. The Corps may assist in rescue operations
during flood response. Any Corps equipment and personnel used in the
operation should be directed by a local official such as a law
enforcement officer, or Tribal/State/city/county officials duly
appointed to conduct rescue operations.
(b) Agricultural lands. Emergency operations assistance may be
provided to a FRM project currently enrolled in the Rehabilitation
Program detailed in subpart D of this part that primarily reduces the
flood risk to agricultural lands only if the Corps determines that such
assistance is justified based on a finding that, in the absence of
Corps assistance, the project is likely to sustain significant damage
as a result of the flood event, and such damage poses a significant
risk to life safety or is likely to result in significant economic
losses.
(c) Non-Federal responsibilities during emergency operations. (1)
During emergency operations, responsible State, Tribal, and local
interests must commit their available resources, to include work force,
supplies, equipment, and funds, to flood response and post flood
response activities.
(2) Non-Federal sponsors must furnish formal written assurances of
local cooperation and legal liability for emergency operations
assistance related to FRM and Federal CSRM projects by entering into
Cooperation Agreements (CAs), as detailed in subpart J of this part, if
such assurances were not provided in an agreement entered into under
section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d-5b).
(3) After the risk of flooding from a flood event or coastal storm
has abated, the non-Federal sponsor for a FRM or Federal CSRM project
is responsible for removing temporary improvements installed by the
Corps at the flood response stage under Public Law 84-99 authority.
This includes the removal and disposal of used sandbags.
(4) Removal of ice jams is a non-Federal responsibility. In ice jam
situations, the Corps may provide technical advice and assistance with
flood fight operations. The Corps will not perform or provide advice on
ice jam blasting operations.
(5) Responsible State, Tribal, and local interests must promptly
return any equipment loaned to such interests by the Corps immediately
after emergency operations conclude. Responsible State, Tribal, and
local interests must properly maintain the equipment while it is in
their custody, and fund the cost of any repairs determined by the Corps
to be necessary upon the equipment's return to Federal custody.
(6) Responsible State, Tribal, and local interests must replace
expendable supplies provided by the Corps or reimburse the Corps for
the value of such supplies. Unused expendable supplies must be returned
to the Corps promptly after emergency operations conclude.
Sec. 203.32 Flood response procedures.
(a) Requesting flood response assistance. Requests for Corps flood
response assistance should be in writing from the responsible State,
Tribal, or local official, or his or her authorized representative, to
the responsible Corps district commander. When time does not permit a
written request, a verbal request from the responsible State, Tribal,
or local official will be accepted.
(b) Coordination. The Corps will coordinate all flood response
assistance with the Tribal or State Emergency Management Agency or
equivalent and will coordinate with other Federal agencies on an
emergency basis to ensure there is appropriate consideration of
environmental and cultural resources considering the exigency of the
circumstances if there has not been coordination in advance of the
emergency response.
(c) Termination of Corps flood response assistance. Corps flood
response assistance will be terminated when the flood waters recede
below bank full or storm surge associated with a coastal storm has
ended, absent a short-term threat (e.g., a significant storm front
expected to arrive within a day or two) likely to cause additional
flooding.
(d) Loan or issue of supplies and equipment and Reimbursement
Waiver Criteria for Issued Expendable Supplies. Corps supplies issued,
or equipment loaned, to responsible State, Tribal, and local interests
for use in supplementing their flood response operations must be hand
receipted to the receiving agency. The responsible Corps district
commander may waive the obligation of responsible State, Tribal, and
local interests to replace or pay for expendable supplies if a Stafford
Act Presidential disaster declaration has been made for the affected
locality or the responsible State, Tribal, or local interests have
issued over 500,000 sandbags from their own supplies in the applicable
calendar year. All unused expendable supplies will be returned to the
Corps when the operation is terminated.
Sec. 203.33 Post flood response procedures.
(a) Requesting post flood response assistance. A written request to
the responsible Corps district commander from the Governor or Tribal
official, or authorized representative thereof, is required to receive
Corps post flood response assistance. The written request will include
verification that the Federal Emergency Management Agency (FEMA) has
been requested to make an emergency or disaster declaration; a
statement that the assistance required is beyond the State's or Tribal
Nation's capability; specific damage locations; and the extent of Corps
assistance required to supplement State or Tribal Nation efforts.
[[Page 68400]]
(b) Coordination. The Corps will coordinate all post flood response
assistance with the Tribal Nation or State Emergency Management Agency
or equivalent and will coordinate with other Federal agencies on an
emergency basis to ensure there is appropriate consideration of
environmental and cultural resources considering the exigency of the
circumstances if there has not been coordination in advance of the
emergency response.
(c) Duration of post flood response assistance. The Corps may
furnish post flood response assistance for a period not to exceed 10
days (the statutory limitation) from the date of the Governor's request
to the Federal Emergency Management Agency for an emergency or disaster
declaration under authority of the Stafford Act. After a request has
triggered the 10-day period, a subsequent request for additional
assistance resulting from the same flood or coastal storm event will
not extend the 10-day period or trigger a new 10-day period.
Subpart D--Emergency Repair, Rehabilitation, and Restoration
Assistance for Flood Risk Management Projects Damaged by Flood
Sec. 203.41 General.
(a) Public Law 84-99 authorizes emergency repair, rehabilitation,
and restoration of FRM projects damaged in a flood. The Rehabilitation
Program implements this authority.
(b) The Corps will conduct an Initial Eligibility Assessment (IEA)
of non-Federal FRM projects, and a Continuing Eligibility Assessment
(CEA) of Federal and non-Federal FRM projects, to determine eligibility
for emergency repair, rehabilitation, and restoration assistance.
(c) Initial eligibility criteria. The following criteria are
required for initial eligibility:
(1) Federal FRM projects. A completed Federal FRM project, or
completed functional portion thereof, is granted initial eligibility
for emergency repair, rehabilitation, and restoration assistance upon
the provision of the written notice of completion of construction by
the responsible Corps district commander to the non-Federal sponsor.
(2) Non-Federal FRM projects. The following initial eligibility
requirements must be met in order for a non-Federal FRM project to be
considered eligible for emergency repair, rehabilitation, and
restoration assistance:
(i) Project must have a non-Federal sponsor as defined in Sec.
203.14.
(ii) Project may not provide exclusive benefits to an individual
homeowner, property owner, or a business (to include an individual
agricultural business or farming operation).
(iii) Non-Federal sponsor must prepare and submit an initial
eligibility application provided by the Corps for eligibility
consideration.
(iv) Project satisfies the initial eligibility assessment
requirements outlined in Sec. 203.42 to verify and document the level
of risk reduction provided by the FRM project and the status of
maintenance of the project.
(d) Continuing eligibility criteria. Non-Federal sponsors of
Federal and non-Federal FRM projects must conduct the following flood
risk management activities to maintain eligibility for emergency
repair, rehabilitation, and restoration assistance:
(1) Documentation that outlines the operation, maintenance, and
inspection activities taken by the non-Federal sponsor to effectively
operate and maintain the FRM project. The documentation will include
the following information:
(i) Identification of the project (or segment of a project). This
should include the name of the project; the name of the non-Federal
sponsor; a brief description of the project and its components; a brief
discussion of the population and infrastructure relying on the project
for flood risk reduction; and a map showing the project alignment and
area benefitted by the project.
(ii) Documentation of inspections conducted by the non-Federal
sponsor since the last inspection of the project by the Corps.
(iii) A schedule and summary of operation and maintenance
activities performed since the last inspection of the project by the
Corps.
(2) Develop, maintain, and exercise an emergency plan. The non-
Federal sponsor of a FRM project must develop and exercise an emergency
plan that outlines the planned preparedness activities and coordination
actions taken by the non-Federal sponsor to effectively prepare for and
manage the project during flood emergencies. If there is an existing
emergency preparedness plan for the jurisdiction that covers the
project area, the non-Federal sponsor's preparedness plan actions may
be incorporated in these jurisdictional plans. In such cases, a
separate emergency plan developed by the non-Federal sponsor is not
necessary. The emergency plan will include the following information:
(i) Roles and responsibilities of the project personnel as they
relate to preparedness, response, and recovery associated with the
project during emergency flood operations.
(ii) Levels of emergency activation and the actions being taken at
these various activation levels to ensure operations of the project
during flood emergencies.
(iii) Sharing Information. Communications and notification
procedures to ensure that public officials and the public impacted by
the projects are aware of FRM project condition and performance for the
purpose of evacuation planning and land-use planning.
(iv) Flood activation process to include notification procedures
and warnings.
(v) Evacuation notification process, emergency training and
exercises.
(vi) Emergency equipment and supplies that are maintained or
required during flood emergencies.
(3) Develop and implement public outreach activities to provide
information regarding the FRM project's condition and risks to
appropriate public officials and stakeholders of the project. The non-
Federal sponsor's activities must ensure that public officials and
decision-makers are aware of and informed about the condition of the
FRM project and the risks associated with the project, project
inspection and risk assessment results are available to appropriate
public officials and stakeholders, and public outreach activities are
included in the Emergency Preparedness Plan prepared by the non-Federal
sponsor under paragraph (d)(2) of this section.
(4) Actively participate in project inspections and assessments
conducted by the Corps as outlined in Sec. 203.48. Non-Federal
sponsors of levee segments and systems must also participate in Corps
Levee Safety Program activities including, but not limited to, risk
assessments, coordination with FEMA, and risk communication activities.
(5) Project satisfies the continuing eligibility assessment
requirements outlined in Sec. 203.43 to determine if the FRM project
maintains minimum engineering and maintenance criteria for continued
eligibility.
(e) Modifications. Public Law 84-99 provides authority to undertake
certain modifications to FRM projects undergoing emergency repair,
rehabilitation, and restoration. A modification is a work effort that
is the addition of new features, elements, components, or items, or the
upgrading of existing ones. Subject to certain conditions, the Corps
will consider requests from non-Federal sponsors for modifications to
address major deficiencies or to increase the design
[[Page 68401]]
level of risk reduction or pump station capacity. Policy, procedures,
and requirements for modifications are described in more detail in
Sec. 203.47.
(f) System-wide improvement framework (SWIF). A SWIF may be
developed to facilitate interagency collaboration to address complete
levee system deficiencies and encourage the establishment of
interagency teams to jointly identify and implement regionally
appropriate, science-based solutions and tools to reduce risk
associated with levees or levee systems while ensuring compliance with
other Federal laws, such as the Endangered Species Act, as appropriate.
Non-Federal sponsors will maintain or regain eligibility in the
Rehabilitation Program while they are developing and implementing a
SWIF. Policy, procedures, and requirements for a SWIF are described in
more detail in Sec. 203.50.
Sec. 203.42 Initial eligibility assessment of non-Federal flood risk
management projects.
(a) The Corps will conduct an Initial Eligibility Assessment (IEA),
including an onsite inspection, to verify project information,
determine if a project meets the definition of a non-Federal FRM
project and minimum engineering and maintenance criteria to ensure that
the project is capable of providing reliable flood risk reduction, and
determine the Federal interest in future emergency repair,
rehabilitation, and restoration of the project. A non-Federal FRM
project that is determined to meet the initial eligibility requirements
will be eligible for rehabilitation assistance beginning on the date
the responsible Corps district commander notifies the non-Federal
sponsor of the project in writing of the determination. To be initially
considered for rehabilitation assistance, the non-Federal sponsor for a
non-Federal FRM project must submit an initial eligibility application.
(b) Contents. The initial eligibility application must include:
(1) Documentation of the level of risk reduction provided by the
non-Federal FRM project that is expressed in terms of an exceedance
frequency (e.g., a 20% chance of a levee being overtopped in any given
year).
(2) The most recent inspection results provided by the non-Federal
sponsor.
(3) Documentation of the status of maintenance, to include recent
maintenance activities, and identification of deficiencies that
compromise the ability of the non-Federal FRM project to provide the
designed level of risk reduction.
(c) Level of detail. The level of detail required in the initial
eligibility application and on-site inspection will be commensurate
with the complexity of the non-Federal FRM project, the potential for
catastrophic failure of the project to cause significant loss of life,
the potential for significant economic losses, and other special
circumstances that may apply.
(d) Assessment results. Information on the results of an IEA will
be furnished in writing to the non-Federal sponsor of the non-Federal
FRM project and will be maintained in Corps district offices.
(1) The responsible Corps district commander will inform the non-
Federal sponsor in writing of the IEA determination. If the project
meets the IEA criteria, the project will be eligible for emergency
repair, rehabilitation, and restoration assistance. If the project does
not meet the IEA criteria, the project will not be eligible for
emergency repair, rehabilitation, and restoration assistance. The Corps
will provide a summary of the IEA criteria that resulted in the
decision.
(2) If the non-Federal sponsor does not agree with the initial
Corps eligibility assessment, the non-Federal sponsor may choose, at
its own expense, to provide additional information relative to the
eligibility criteria and request a reconsideration of the Corps
determination.
Sec. 203.43 Continuing eligibility assessment of Federal and non-
Federal flood risk management projects.
(a) Continuing Eligibility Assessments (CEA) for Federal and non-
Federal FRM projects are conducted periodically to ensure that projects
continue to meet Corps initial eligibility criteria outlined in Sec.
203.42 and the continuing eligibility criteria outlined in this
section. A CEA assesses the non-Federal sponsor's implementation of its
project operation, maintenance, and inspection activities; emergency
planning; and sharing information about FRM project condition and
performance. A CEA also seeks to detect changed project conditions that
could impact project performance. An acceptable CEA determination is
required to retain eligibility for emergency repair, rehabilitation,
and restoration assistance.
(b) Contents. Continuing eligibility assessment consists of:
(1) Verification that initial eligibility criteria outlined in
Sec. 203.42 continue to be met.
(2) A review of the operation, maintenance, and inspection
activities. The Corps will verify that the non-Federal sponsor is using
a risk-informed approach to prioritizing operation and maintenance
activities and is regularly inspecting the project. The Corps will
identify changes in project condition and/or consequences associated
with the non-performance of the project.
(3) A review of emergency plan and associated activities. The Corps
will verify the emergency plan is regularly updated and exercised.
(4) A review of information sharing/outreach activities
accomplished about FRM project condition and performance.
(5) A review of participation in project inspections and
assessments conducted by non-Federal sponsor and/or the Corps.
(c) Assessment Results. Information on the results of a CEA will be
furnished in writing to the non-Federal sponsor of the Federal or non-
Federal FRM project and will be maintained in Corps district offices.
(1) The responsible Corps district commander will inform the non-
Federal sponsor in writing of the CEA determination. If the project
meets the CEA criteria the project will retain eligibility for
emergency repair, rehabilitation, and restoration assistance. If the
project does not meet the CEA criteria the project will no longer be
eligible for emergency repair, rehabilitation, and restoration
assistance. The Corps will provide a summary of the CEA criteria that
resulted in the decision.
(2) The Corps will inform the non-Federal sponsor of the Corps'
determination of the project's ability to reliably provide a level of
risk reduction and the maintenance that must be accomplished to provide
that level of risk reduction for the non-Federal sponsor's information
and use in understanding risk and planning future maintenance
activities.
(3) If the results of a Corps eligibility assessment are not
acceptable to the non-Federal sponsor, the non-Federal sponsor may
choose, at its own expense, to provide additional information relative
to the eligibility criteria and request a reconsideration of the Corps
determination.
(d) Regaining eligibility. A Federal or non-Federal FRM project
determined by the Corps to not meet continuing eligibility requirements
will remain ineligible for emergency repair, rehabilitation, and
restoration assistance until such time as the continuing eligibility
criteria are met. Follow-up inspections can be made by the Corps to
monitor progress in correcting deficiencies when warranted.
[[Page 68402]]
Sec. 203.44 Emergency repair, rehabilitation, and restoration of
Federal and non-Federal flood risk management projects.
(a) Eligibility for emergency repair, rehabilitation, and
restoration assistance. An FRM project is eligible for emergency
repair, rehabilitation, and restoration assistance if the project has
received a favorable determination on the IEA and subsequent CEAs, the
damage was caused by the flood event, the work is economically
justified, and the work is not otherwise prohibited by subpart D. The
Corps will comply with all applicable environmental compliance
requirements prior to any emergency repair, rehabilitation, or
restoration of the project.
(b) Work at non-Federal sponsor expense. The Rehabilitation Program
will cost share the work required to restore the non-Federal FRM
project to its pre-flood event condition, as documented in the most
recent inspection, as well as any costs necessary to comply with
environmental requirements in accordance with cost share provisions in
Sec. 203.113. If deficient or deferred project maintenance is
outstanding when damage to an FRM project occurs, then the deficient
and deferred maintenance will be accomplished by or at the expense of
the non-Federal sponsor. At the earliest opportunity prior to
commencement of emergency repair, rehabilitation, and restoration work,
the responsible Corps district commander will inform the non-Federal
sponsor in writing of any work that must be accomplished at non-Federal
sponsor expense.
(c) Nonconforming works. The Corps will not provide emergency
repair, rehabilitation, and restoration assistance for any non-Federal
FRM project constructed or modified without the appropriate Federal,
State, Tribal, and local permits, or waivers thereof.
(d) Cooperation agreements. A Cooperation Agreement is required in
accordance with subpart J.
(e) Economic justification. Except as provided in Sec. 203.113(c)
of this part, the emergency repair, rehabilitation, and restoration
effort must be economically justified and the construction cost of the
work, excluding the cost of LERRDs, must exceed $50,000. Construction
costs greater than $50,000 do not preclude the Corps from making a
determination that the required work is a maintenance responsibility of
the non-Federal sponsor, and not eligible for emergency repair,
rehabilitation, and restoration assistance.
Sec. 203.46 Restrictions.
(a) Eligibility restricted to flood risk management projects.
Structures built primarily for the purposes of channel alignment,
navigation, recreation, fish and wildlife enhancement, land
reclamation, habitat restoration, drainage, bank protection, or erosion
protection, are generally ineligible for Public Law 84-99 emergency
repair, rehabilitation, and restoration assistance.
(b) Non-flood related emergency repair, rehabilitation, and
restoration. The Corps will not generally provide emergency repair,
rehabilitation, and restoration assistance under Public Law 84-99 to
address damages by occurrences other than floods or coastal storms.
However, there may be instances when other natural disasters may impact
the structural integrity of a FRM project. In these instances, the
provision of assistance will be evaluated on a case-by-case basis.
Sec. 203.47 Modifications to flood risk management projects
undergoing emergency repair, rehabilitation, and restoration.
(a) Modifications to address major deficiencies. (1) Modifications
to address a major deficiency that also would increase the level of
risk reduction provided prior to the most recent flood or floods are
beyond the scope of this subsection and must be evaluated under
paragraph (b) of this section. Where the modification would not
increase the level of risk reduction provided prior to the most recent
flood or floods, the Corps will consider requests by the non-Federal
sponsor for a modification to address major deficiencies as part of the
emergency repair, rehabilitation, and restoration of the project under
Public Law 84-99 based on one or more of the following criteria:
(i) The modification is expected to significantly decrease the risk
of loss of life and property damage.
(ii) The modification is expected to decrease the risk of loss of
life, the risk of damage to property and public infrastructure, or the
total life-cycle flood response, post flood response, and
rehabilitation costs for the project.
(iii) The modification is necessary to preserve the structural
integrity or otherwise reduce the risk of failure of the existing
project in a flood.
(iv) The modification is the most cost-effective means of complying
with substantive environmental requirements such as the Endangered
Species Act.
(2) Allowable features of modifications. Modifications to address
major deficiencies may include:
(i) Incorporating features to make the overall levee system more
durable, such as low sills, riprap, hardening features, and similar
measures.
(ii) Incorporating landscaping features that promote safety and/or
preserve natural protective features.
(iii) Constructing set back levees.
(iv) Constructing relief wells, if deemed an engineering necessity.
(v) Installing cutoff walls and stability or seepage berms to
address seepage issues.
(vi) Floodproofing or otherwise reducing the risk of damage to
essential project facilities in a flood.
(b) Modifications to increase the design level of risk reduction or
pump station capacity. The Corps will consider requests by the non-
Federal sponsor for modification of a FRM project to increase the
design level of risk reduction, or to increase pump station capacity,
as part of the emergency repair, rehabilitation, and restoration of
that project under Public Law 84-99 if all of the following criteria
are satisfied:
(1) The Corps previously provided emergency repair, rehabilitation,
and restoration assistance for that FRM project, or the flood response
or post flood response assistance that the Corps provided to that area
related to that project, at least twice in any 10-year period preceding
the requested modification.
(2) The requested modification is expected to significantly
decrease the risk of loss of life, the risk of damage to property and
public infrastructure, or the total life-cycle flood response, post
flood response, and rehabilitation costs for the project.
(3) The Corps has sufficient staffing and resources to accommodate
the requested modification without adversely impacting the timeline for
the provision of emergency repair, rehabilitation, and restoration
assistance for other FRM projects in that Corps district's other areas
of responsibility.
(4) The requested modification is unlikely to result in a
significant transfer of flood risk to areas outside the area protected
by the project, and the non-Federal sponsor agrees to pay all costs
associated with mitigating any transfer of flood risk determined to
result from the requested modification.
(c) Requests for modifications. The non-Federal sponsor for a FRM
project must submit a request in writing to the responsible Corps
district commander for consideration of modifications to address major
deficiencies or to increase the design level of risk reduction or pump
station capacity. The modification request must be provided
[[Page 68403]]
by the non-Federal sponsor concurrently with a request to determine
repair eligibility as outlined in Sec. 203.44 or Sec. 203.45. The
request must describe the modification and its purpose. Requests for
modifications will require the approval of the Corps Director,
Contingency Operations and Office of Homeland Security.
(d) Cost sharing for modifications. The non-Federal sponsor for the
FRM project must fund all costs associated with a modification that the
Corps determines to exceed the cost of emergency repair,
rehabilitation, and restoration.
(e) Economic justification. Both the emergency repair,
rehabilitation, and restoration work and the incremental cost of the
modifications must be economically justified.
(f) Timeline for modifications. Requested modifications must be
carried out within three years once the emergency repair,
rehabilitation, and restoration of the project under Public Law 84-99
has begun.
(g) Limitations of modifications. The Corps will not consider
modifications of a FRM project under Public Law 84-99 to improve the
condition of the project beyond its pre-flood condition, or to achieve
a purpose that is not related to flood risk management. The Corps also
will not consider modifications to a project under Public Law 84-99
that would have the effect of extending the length of a FRM project
beyond its current footprint.
Sec. 203.48 Inspections and risk assessments for flood risk
management projects.
The Corps will continue to conduct inspections and risk assessments
of all Federal and non-Federal FRM projects eligible for emergency
repair, rehabilitation, and restoration assistance. The primary purpose
of the inspections and risk assessments is to assess and communicate
the physical condition of the FRM project based on observations; to
verify the adequacy of operation and maintenance; and to inform the
non-Federal sponsors in the development and execution of their
operation, maintenance, and inspection plan, emergency preparedness
plan, and public outreach activities. Additionally, inspections are
performed to verify that non-Federal sponsors of Federal FRM projects
are fulfilling their responsibilities in accordance with Title 33--
Navigation and Navigable Waters; Chapter II--Corps of Engineers,
Department of the Army (33 CFR part 208) requirements and project
partnership/cooperation agreements.
Sec. 203.49 Levee guide.
(a) Section 202(f) of the Water Resources Development Act of 1996
(33 U.S.C. 701n(c)) directs the Corps to provide a levee manual (guide)
to the non-Federal sponsor of any project determined to be eligible for
emergency repair, rehabilitation, and restoration assistance.
(b)(1) Eligible non-Federal flood risk management projects. The
Corps will provide a levee guide to non-Federal sponsors of non-Federal
FRM projects determined to be eligible for emergency repair,
rehabilitation, and restoration assistance. The levee guide will
include the criteria that must be met to gain and maintain eligibility
in the rehabilitation program. Upon written request, the Corps will
also provide a levee guide to the non-Federal sponsor of a non-Federal
FRM project for which eligibility for assistance has not yet been
evaluated to aid the non-Federal sponsor in preparing for an initial
eligibility assessment.
(c) Procedural requirements. The Corps will provide a levee guide
to the non-Federal sponsor of a non-Federal FRM project during
scheduled initial and continued eligibility assessments, or upon
written request from a non-Federal sponsor to the responsible Corps
district commander.
Sec. 203.50 System-wide improvement framework.
(a) A system-wide improvement framework (SWIF) is a plan developed
by the non-Federal sponsors of a levee system or systems and accepted
by the Corps to maintain eligibility for emergency repair,
rehabilitation, and restoration assistance while conducting a series of
improvements to the levee system (or multiple levee systems within a
watershed) to address system-wide deficiencies that are complex or
time-consuming to correct.
(b) SWIF process. The SWIF process is available to non-Federal
sponsors of levee systems facing system-wide deficiencies as a way to
facilitate the development of solutions to satisfy multiple
requirements that apply to their levee systems while allowing the non-
Federal sponsors participating in the SWIF process to remain eligible
for emergency repair, rehabilitation, and restoration assistance while
addressing the deficiencies. The SWIF can be used to address
deficiencies or issues that cannot be addressed through routine
corrective actions, including:
(1) A reduction in the level of risk reduction of a FRM project
below the minimum basic eligibility criteria due to changed conditions.
(2) Improvements that involve multiple levee systems.
(3) Additional time or coordination is needed to adequately address
complex considerations to ensure life safety.
(4) Additional time or coordination is needed to address a complex
natural resource issue such as consultation/mitigation actions for
resources subject to the Endangered Species Act.
(5) Additional time or coordination is needed to observe and
protect the rights of Tribal Nations pursuant to treaty and statute.
Subpart E--Emergency Repair, Rehabilitation, and Restoration
Assistance for Federal Coastal Storm Risk Management Projects
Sec. 203.61 General.
(a) The Chief of Engineers is authorized to repair and restore
Federal coastal storm risk management (CSRM) projects damaged or
destroyed by wind, wave, or water action of other than an ordinary
nature to either the pre-storm level or to their design profile,
whichever provides greater risk reduction, when, in the discretion of
the Chief of Engineers, such repair and restoration is required for the
adequate functioning of the structure or project for hurricane or shore
protection. Further, the Chief of Engineers may include modifications
to these projects to address major deficiencies. Finally, the Chief of
Engineers may implement nonstructural alternatives to the repair or
restoration of the project if requested by the non-Federal sponsor.
(1) Emergency repair, rehabilitation, and restoration assistance
for Federal CSRM projects generally is limited to the project's design
profile, which is the level of restoration that will allow for the
adequate functioning of the project. In some circumstances, the pre-
storm profile, which is the profile that existed the day prior to the
storm, may be greater than the design profile, and restoration to the
pre-storm profile may be necessary to ensure adequate functioning of
the project based on project-specific conditions, such as much greater
than anticipated erosion rates. Accordingly, at the request of the non-
Federal sponsor for a Federal CSRM project, the responsible Corps
district will evaluate restoration to the pre-storm profile as an
additional restoration alternative. If the evaluation demonstrates that
restoration to the pre-storm profile is not necessary to ensure
adequate functioning of the project, restoration to the pre-storm
profile may only proceed if the incremental costs above the costs to
restore to the design profile are subject to the cost-sharing
[[Page 68404]]
that would apply for periodic nourishment. In these cases, a cost
allocation between emergency repair, rehabilitation, and restoration
assistance and periodic nourishment will be based on the necessary
material volumes.
(2) To be considered for emergency repair, rehabilitation, and
restoration assistance, a Federal CSRM project must be substantially
damaged by wind, wave, or water action of other than an ordinary
nature, commonly known as an extraordinary storm. The determination of
whether a storm qualifies as extraordinary will be made by the Corps
Deputy Commanding General of Civil and Emergency Operations, who may
delegate this authority to the Corps Director, Contingency Operations
and Office of Homeland Security. Criteria for the extraordinary storm
and substantial damage determinations are outlined in Sec. 203.63.
(3) For Federal CSRM projects that include a beach, the Corps will
provide emergency repair, rehabilitation, and restoration assistance
only to the extent that the non-Federal sponsor has established and
maintained adequate conditions of public use and access for the beach.
The Corps will undertake emergency repair, rehabilitation, and
restoration of a segment or reach of a Federal CSRM project that
includes a beach for which the non-Federal sponsor has not established
or maintained adequate conditions of public use and access only if the
non-Federal sponsor pays all costs allocated by the Corps to emergency
repair, rehabilitation, and restoration of the segment or reach.
(4) For Federal CSRM projects located completely or partially
within a unit of the Coastal Barrier Resources System, the Corps will
provide emergency repair, rehabilitation, and restoration assistance
only to the extent that the project, or segment or reach of the project
located within the System, qualifies for an exception under section 6
of the Coastal Barrier Resources Act (16 U.S.C. 3505) from the Act's
prohibition on federal expenditures within the System (16 U.S.C. 3504).
The Corps will undertake emergency repair, rehabilitation, and
restoration of a segment or reach of a project located within the
System that does not qualify for an exception only if the non-Federal
sponsor pays all costs allocated by the Corps to emergency repair,
rehabilitation, and restoration of that segment or reach.
Sec. 203.62 Non-Federal sponsor responsibilities for Federal CSRM
projects.
The non-Federal sponsor for a Federal CSRM project is responsible
for complying with the Project Partnership Agreement, Project
Cooperation Agreement (PCA), Local Cooperation Agreement (LCA), or
similar document including any project specific O&M manuals. The non-
Federal sponsor must provide to the Corps an accurate beach survey of
the project on at least an annual basis, unless this survey requirement
is otherwise provided for by other project authority.
Sec. 203.63 Emergency repair, rehabilitation, and restoration of
Federal CSRM projects.
(a) Extraordinary storm. Emergency repair, rehabilitation, and
restoration assistance is only available for Federal CSRM projects
after an extraordinary storm event. An extraordinary storm is a storm
that, due to duration or severity, causes substantial damage to a
Federal CSRM project such that it no longer provides significant risk
reduction benefits. Wave or water action of other than an ordinary
nature caused by a geological event such as an earthquake, volcano, or
tsunami may be determined to be an extraordinary storm. A determination
of an extraordinary storm requires a finding both of ``duration or
severity'' and of ``significant amount of damage'' incurred in
accordance with the following criteria:
(1) Duration or severity. ``Duration or severity'' may include but
is not limited to the following characteristics of the event: storm
surge, total water elevation, significant wave height, significant wave
period, local sustained winds, wave direction, wave power or storm
duration, which individually or collectively have exceeded the 90%
cumulative distribution function value, as determined by analysis of
regional historic storm characteristics for the project; or a storm
that is larger than or equal to the design storm of the project, if a
design storm has been identified; or a storm that is larger than or
equal to a comparable standard identified in the project authority or
design documents. ``Duration or severity'' may include repetitive
storms within a single hurricane season or over a comparable short
period of time where their combined effect meet these characteristics.
(2) Substantial damage. Substantial damage may have occurred when
one or more of the following criteria are satisfied:
(i) The cost of the construction effort to effect repair of the
Federal CSRM project for damages caused by the storm (exclusive of
dredge mobilization and demobilization costs) exceeds two million
dollars and is greater than 10 percent of the original costs required
to construct the initial CSRM project template (expressed in current-
day dollars) of the Federal CSRM project.
(ii) The cost of the construction effort to effect repair of the
Federal CSRM project for damages caused by the storm (exclusive of
dredge mobilization and demobilization costs) exceeds eight million
dollars.
(iii) More than 50 percent of the planned or historically placed
sand for nourishment efforts for the Federal CSRM project is lost in a
single season because of one or more extraordinary storms, which each
meet the criteria for duration or severity.
(iv) Only hard structural features of the project are damaged.
(b) Project function compromised. Emergency repair, rehabilitation,
and restoration assistance is available for a Federal CSRM project
following an extraordinary storm only if the damage sustained by the
project significantly compromises the project's ability to provide risk
reduction.
(c) Work at non-Federal sponsor expense. The Rehabilitation Program
will cost share the work required to restore the CSRM project to its
design profile, as documented in the most recent inspection, as well as
any costs necessary to comply with environmental requirements in
accordance with cost share provisions in Sec. 203.113. If deficient or
deferred project maintenance is outstanding when damage to an CSRM
project occurs, then the deficient and deferred maintenance will be
accomplished by or at the expense of the non-Federal sponsor. At the
earliest opportunity prior to commencement of emergency repair,
rehabilitation, and restoration work, the responsible Corps district
commander will inform the non-Federal sponsor in writing of any work
that must be accomplished at non-Federal sponsor expense.
(d) Economic justification. The rehabilitation of the Federal CSRM
project must be economically justified.
Sec. 203.64 Modifications to Federal CSRM projects undergoing
emergency repair, rehabilitation, and restoration.
Public Law 84-99 provides authority to include modifications to
Federal CSRM projects as part of the emergency repair, rehabilitation,
and restoration under Public Law 84-99. The Corps will consider
modifications proposed by the non-Federal sponsor to address a major
deficiency of a Federal CSRM project that has been damaged by the
effects of wind, wave, or water action of other than ordinary nature is
limited to those modifications that address major deficiencies
determined necessary to restore the adequate functioning of the
[[Page 68405]]
structure. Modifications that expand the area protected by a project,
or that alter the design profile in a manner that substantially change
the nature or magnitude of the project's benefits are beyond the scope
of Public Law 84-99 assistance.
(a) Principal purposes of modifications. If economically justified,
a Federal CSRM project undergoing emergency repair, rehabilitation, and
restoration under Public Law 84-99 may be modified at the request of
the non-Federal sponsor. A modification consists of the addition of new
features, elements, components, or items, or the upgrading of existing
ones, which would improve the structural integrity of the project. The
Corps will consider requests for such a modification of a Federal CSRM
project to address major deficiencies based on one or more of the
following criteria:
(1) The modification is expected to significantly decrease the risk
of loss of life and property damage without expanding the area
protected or substantially changing the nature or magnitude of the
project's benefits (e.g., armoring).
(2) The modification is expected to decrease total Corps life-cycle
rehabilitation costs (to include flood fight costs) for the project.
(3) The modification is necessary to preserve the structural
integrity of the existing project.
(4) The modification is the most cost-effective means of complying
with substantive environmental requirements such as the Endangered
Species Act.
(b) Allowable features of modifications. Modifications to address
major deficiencies may include:
(1) Adjusting the project's sand volume and distribution within the
authorized profile features (dunes, storm berm, and beach) to address
project performance deficiencies.
(2) Adjusting nourishment sediment size and type or sand sources.
(3) Strengthening or improving hard or hardened features of the
project.
(c) Cost sharing of modifications. The non-Federal sponsor for the
Federal CSRM project must fund all costs associated with a modification
that the Corps determines to exceed the cost of emergency repair,
rehabilitation, and restoration. Costs assigned to emergency repair,
rehabilitation, and restoration will be funded by the Corps. Cost
sharing requirements are described in more detail in Sec. 203.113.
(d) Requests for modifications. The non-Federal sponsor for a
Federal CSRM project must submit a request in writing to the
responsible Corps district commander for consideration of modifications
to address major deficiencies. The modification request must be
submitted by the non-Federal sponsor concurrently with a request to
determine repair eligibility as outlined in Sec. 203.63. The request
must include a description of the major deficiencies that the
modification is intended to correct. Requests for modifications will
require the approval of the Corps Director, Contingency Operations and
Office of Homeland Security.
(e) Limitations of modifications. The Corps will not consider
modifications of a Federal CSRM project under Public Law 84-99 to
improve the condition of the project beyond its pre-storm condition, or
to achieve a purpose that is not related to coastal storm risk
management.
Subpart F--Nonstructural Alternatives to Emergency Repair,
Rehabilitation, and Restoration of Flood Risk Management and
Federal Coastal Storm Risk Management Projects
Sec. 203.71 General.
(a) Under Public Law 84-99, the Chief of Engineers is authorized,
when requested by the non-Federal sponsor, to implement nonstructural
alternatives to the emergency repair, rehabilitation, and restoration
of FRM projects and Federal CSRM projects damaged by floods or coastal
storms.
(1) The option of implementing a nonstructural alternative project
(NSAP) in lieu of structural emergency repair, rehabilitation, and
restoration is available only to non-Federal sponsors of FRM or Federal
CSRM projects eligible for emergency repair, rehabilitation, and
restoration assistance in accordance with this part, and only upon the
written request of the non-Federal sponsor.
(2) A sponsor is required for implementation of an NSAP. The NSAP
sponsor must be either a non-Federal sponsor, as defined in Sec.
203.14, or another Federal agency with sufficient authority to jointly
fund implementation of the NSAP and assume the responsibilities
described in paragraph (d) of this section.
(3) The Corps shall not be responsible for the operation,
maintenance, or management of any NSAP implemented under this section.
(4) Implementation of a nonstructural alternative for a Federal FRM
project or Federal CSRM project requires an amendment to the project
partnership agreement for the project. The Corps Director, Contingency
Operations and Office of Homeland Security, will approve such
amendments.
(5) The criteria for evaluating a proposed NSAP include:
(i) Reduction of overall risk of loss of life and future flood
damages, including to areas that may be upstream or downstream of the
project.
(ii) Floodplain restoration.
(iii) Provision or restoration of floodways.
(iv) Habitat restoration, when incidental to the principal purpose
of reducing vulnerability to a flood or coastal storm event.
(6) The Corps may, in its sole discretion, reject any request for
an NSAP that would:
(i) Increase future Federal costs or economic damages;
(ii) Have a significant adverse impact on the integrity, stability,
or level of risk reduction of adjacent or nearby flood risk management
projects; or
(iii) Lead to an increased risk of loss of life or property during
flood events.
(c) Corps expenditures. Exclusive of the costs of investigation,
report preparation, engineering and design work, and related costs,
Corps expenditures for implementation of an NSAP are limited to the
lesser of the Federal share of emergency repair, rehabilitation, and
restoration construction costs of the project were the FRM or Federal
CSRM project to be structurally rehabilitated in accordance with
subparts D or E of this part, or the Federal share of computed benefits
which would be derived from such structural rehabilitation. The Corps
Director, Contingency Operations and Office of Homeland Security, may
approve exceptions to the limitations on Corps expenditures when the
following criteria are met:
(1) The costs of the NSAP are economically justified.
(2) The costs of the NSAP are reasonable in comparison to the
estimated total life-cycle Corps flood response, post flood response,
and rehabilitation costs for the FRM or Federal CSRM project.
(3) Implementation of the NSAP will significantly reduce the risk
of life loss and property damage in the area protected by the FRM or
Federal CSRM project.
(d) Responsibilities of the NSAP sponsor. Responsibilities of the
sponsor for the NSAP include:
(1) Operate and maintain the NSAP.
(2) Provide, or arrange for and obtain, all funding required to
implement the NSAP in excess of the limitation established in paragraph
(c) of this section.
(3) Acquire or provide all LERRDs required to implement the NSAP
or, if the Corps elects to perform acquisition
[[Page 68406]]
or relocations, accept the transfer of ownership of, or jurisdiction
over, any lands or interests in land acquired by the Corps.
(e) Federal agency acting as NSAP sponsor. If another Federal
agency serves as the NSAP sponsor, an interagency agreement between the
Corps and the Federal agency serving as the NSAP sponsor is required,
in accordance with paragraph (l) of this section.
(f) Responsibilities of the non-Federal sponsor for a non-Federal
flood risk management project, Federal flood risk management project,
and/or Federal Coastal Storm Risk Management project (FRM/CSRM)
requesting implementation of a NSAP.
(1) The non-Federal sponsor for a FRM or CSRM project must request
the Corps undertake a NSAP in lieu of emergency repair, rehabilitation,
and restoration of the FRM or CSRM project, in accordance with the
sponsor's applicable laws, ordinances, rules, and regulations.
(2) If not also the NSAP non-Federal sponsor, the non-Federal
sponsor for the FRM or CSRM project must:
(i) Divest itself of responsibility to operate and maintain the FRM
or CSRM project involved in the NSAP.
(ii) Provide to the NSAP sponsor such lands or interests in lands
as it may have which the Corps determines are necessary to implement
the NSAP.
(g) Allowable Public Law 84-99 expenses for NSAPs. Some of the
allowable expenses relative to implementing a NSAP reflect:
(1) Acquisition of land or interests in land.
(2) Removal of structures, including manufactured homes, for
salvage or reuse purposes.
(3) Demolition and removal of structures, including utility
connections and related items.
(4) Debris removal and debris reduction.
(5) Removal, protection, and relocation of highways, roads,
utilities, cemeteries, and railroads.
(6) Construction to promote, enhance, control, or modify water
flows into, out of, through, or around the nonstructural project area.
(7) Nonstructural habitat restoration, to include select planting
of native and desirable plant species, native species nesting site
enhancements, etc.
(8) Total or partial removal or razing of existing reaches of a
levee, to include removal of bank protection features and/or riprap.
(9) Flood proofing or otherwise reducing the risk of flood related
damages to essential public facilities within the non-structural
project area.
(10) Supervision, administrative, and contract administration costs
of other expenses allowed in this paragraph.
(h) Time limitation. Corps participation in development and
implementation of an NSAP may cease, at the sole discretion of the
Corps, three years after the date of approval of emergency repair,
rehabilitation, and restoration of the damaged FRM or CSRM project or
the date of receipt of the non-Federal sponsor's written request for an
NSAP, whichever is earlier, if insufficient progress is being made to
develop and implement the NSAP for reasons beyond the control of the
Corps. In such circumstances, the Corps may, at its sole discretion,
deny the emergency repair, rehabilitation, and restoration assistance
that the non-Federal sponsor would have received for the damaged
project in the absence of the proposed NSA.
(i) Participation and involvement of other Federal, State, Tribal,
local, and private interests. Nothing in this section shall be
construed to limit the participation of other Federal, State, Tribal,
local, and private interests in the development, implementation, or
future operation and maintenance of an NSAP under this section, subject
to the limitations of such participating interest's authorities and
regulations.
(j) Future assistance. After transfer of responsibility for all
future operation, maintenance, repair, replacement, and rehabilitation
of a NSAP to the NSAP non-Federal sponsor or the lead Federal agency,
flood-related assistance pursuant to Public Law 84-99 will not be
provided for the area for which the FRM or Federal CSRM project was
effective in reducing the risk of flood or storm damages, except for
rescue operations provided in accordance with Sec. 203.31(a)(3). As an
exception, on a case-by-case basis, levees repaired or set back as part
of the implementation of an NSAP may be considered for future flood-
related assistance by the Corps Director, Contingency Operations and
Office of Homeland Security.
(k) Environmental considerations. NSAPs are subject to the same
environmental requirements, restrictions, and limitations as are
structural rehabilitation projects.
(l) Requirement for cooperation agreement (CA) or Interagency
Agreement. (1) In order to clearly define the obligations of the Corps
and of the non-Federal sponsor of a NSAP, a CA with the non-Federal
sponsor is required. CA provisions for a NSAP are addressed in
paragraphs (l)(2) through (l)(9) of this section. When another Federal
agency serves as the NSAP sponsor, an interagency agreement between the
Corps and the Federal agency is required. The provisions of the
interagency agency agreement will be similar to, and consistent with,
requirements detailed in paragraphs (l)(2) through (l)(9) of this
section, with appropriate modifications based on the other Federal
agency's authorized expenditures and programs.
(2) In addition to the responsibilities described in paragraph (d)
of this section, the CA will require the non-Federal sponsor of the
NSAP or, in the case of a NSAP sponsored by another Federal agency, the
non-Federal sponsor of the FRM or CSRM project requesting
implementation of the NSAP, to hold and save the United States free
from damages due to the project, except for damages due to the fault or
negligence of the United States or its contractor.
(3) The CA will provide that the Corps will assume up to 100
percent of the costs of implementing a NSAP, subject to the limitations
set forth in paragraph (c) of this section.
(4) The CA may allow the non-Federal sponsor for a NSAP to use
funding from other Federal agencies to fulfill its sponsor
responsibilities, but only if the Federal agency providing the funding
determines in writing that use of the funds for such purposes is
specifically authorized by law.
(5) The CA will allow the non-Federal sponsor for a NSAP to elect
to assume responsibility for a larger percentage of eligible costs for
the NSAP than the maximum provided for in this section.
(6) The CA will include the prohibition of future assistance
described in paragraph (j) of this section.
(7) The CA will include acknowledgment of, and a statement of
planned adherence to, Executive Order 11988, Floodplain Management, 3
CFR part 117 (1977 Compilation), or as it may be revised in the future,
by the NSAP non-Federal sponsor.
(8) The CA will require the non-Federal sponsor for the NSAP to
place legal restrictions on lands formerly protected by the FRM or
Federal CSRM project that will preclude future use and development of
such lands in a fashion incompatible with the purposes of the NSAP.
(9) In the event the Corps does not elect to perform real property
acquisition for a NSAP, the CA will provide for reimbursement of the
costs incurred by the non-Federal sponsor to acquire lands or interests
in land that are required for the NSAP, subject to the limitations set
forth in paragraph (c) of this section. The Corps will not reimburse
the non-Federal sponsor of a NSAP for the value of lands or interests
[[Page 68407]]
in land required for the NSAP that are publicly owned on the effective
date of the CA, unless the lands or interests in land were acquired by
the non-Federal sponsor for purposes of implementing a NSAP after the
date of the flood or coastal storm event that damaged the eligible FRM
or Federal CSRM project.
Subpart G--Emergency Drinking Water Assistance: Contaminated Water
Source
Sec. 203.81 Authority and policy.
(a) Authority. The Chief of Engineers is authorized to provide
emergency supplies of clean water to any locality confronted with a
source of contaminated water causing, or likely to cause, a substantial
threat to the public health and welfare of the inhabitants of the
locality.
(b) Policy. (1) Any locality faced with a threat to public health
and welfare from a contaminated source of drinking water is eligible
for assistance.
(2) Eligibility for assistance will be based on one or more of the
following factors:
(i) Exceedance of the maximum contaminant level for a contaminant,
as established by the Environmental Protection Agency pursuant to the
Safe Drinking Water Act (see 40 CFR part 141).
(ii) The water supply has been identified as a source of illness by
a Federal, State, or Tribal public health official. The specific
contaminant does not have to be identified.
(iii) An emergency (e.g., a flood or chemical spill) has occurred
that has resulted in one of the following:
(A) One or more contaminants entering the source on a sufficient
scale to endanger health.
(B) Inoperability of the equipment necessary to remove known
contaminants.
(iv) The presence of a contaminant is indicated based on other
information available.
(3) Corps assistance will be scaled to provide the minimum amount
of water required to maintain the health and welfare requirements of
the affected population. The quantity of water and the means of
distribution will be at the discretion of the responsible Corps
district commander, who will consider the needs of the individual
situation, the needs of the affected community, and the cost-
effectiveness of providing water by various methods.
(4) If a locality has multiple sources of water, assistance will be
furnished only to the extent that the remaining sources, with
reasonable conservation measures, cannot provide adequate supplies of
drinking water.
(5) Loss of water supply is not a basis for assistance under this
authority.
(6) Water will not be furnished for commercial processes, except as
incidental to the use of existing distribution systems. This does not
prohibit the furnishing of water for drinking by employees and on-site
customers. Water for preparing retail meals and similar personal needs
may be provided to the extent it would be furnished to individuals.
(7) The permanent restoration of a safe supply of drinking water is
the responsibility of local interests.
(8) State, Tribal, and local governments must make full use of
their own resources, including National Guard capabilities.
Sec. 203.82 Eligibility criteria and procedures.
(a) Written request. The Governor or his/her authorized
representative or the responsible Tribal official must submit a written
request for assistance to the responsible Corps district commander.
Requests must provide the following information:
(1) Describe the State/Tribal/local efforts undertaken. Indicate if
all reasonably available resources have been committed.
(2) Identify the specific needs of the locality, and what is being
requested from the Corps.
(3) Identify additional commitments to be accomplished by the State
or Tribal Nation, to include the entity or agency responsible for
development of the permanent resolution.
(4) Identify the non-Federal project sponsor.
(b) Cooperation agreement. Corps assistance requires a non-Federal
sponsor to enter in a Cooperation Agreement (CA) subject to subpart J
of this part. This agreement must cover specified services and
responsibilities of each party, and provision of a firm schedule for
the non-Federal sponsor to provide normal supplies of water.
(c) Duration of assistance. Corps assistance is generally limited
to 30 days. Extension of this 30-day period requires execution of an
amendment to the CA between the non-Federal sponsor and the Corps.
(d) Non-Federal sponsor responsibilities. Non-Federal sponsors are
responsible for:
(1) Restoration of the routine supply of clean drinking water,
including correcting any situations that cause contamination.
(2) Adhering to the CA.
(3) Implementation of reasonable water conservation measures.
(4) Operating, fueling, and maintaining any leased or loaned
equipment.
(5) Removing and returning leased or loaned equipment in a fully
maintained condition to the Corps within a reasonable timeframe after
the assistance period in the CA has expired.
Subpart H--Drought Assistance
Sec. 203.91 Authority and policy.
(a) Authority. The Chief of Engineers, acting for the Secretary of
the Army, has the authority under certain conditions to construct wells
for farmers, ranchers, and political subdivisions, and to transport
water to political subdivisions, within areas determined to be drought-
distressed.
(b) Policy. (1) Corps assistance to provide emergency water
supplies will only be considered when eligible applicants have
exhausted reasonable means for securing necessary water supplies,
including assistance and support from other Federal agencies.
(2) Before Corps assistance is considered under this authority, the
applicability of other Federal assistance authorities must be
evaluated. If these programs cannot provide the needed assistance, then
maximum coordination should be made with appropriate agencies in
implementing Corps assistance.
(c) Definitions applicable to this subpart. (1) Construction.
Initial construction, reconstruction, or repair.
(2) Drought-distressed area. An area that the Corps Deputy
Commanding General for Civil and Emergency Operations has determined,
due to drought conditions, to have an inadequate water supply that is
causing, or is likely to cause, a substantial threat to the health and
welfare of the inhabitants of the impacted area, including the threat
of damage or loss of property.
(3) Eligible applicant. Any rancher, farmer, or political
subdivision within a designated drought-distressed area that is
experiencing an inadequate supply of water due to drought.
(4) Farmer or rancher. An individual who realizes at least one-
third of his or her gross annual income from agricultural sources and
is recognized in the community as a farmer or rancher. A farming
partnership, corporation, or similar entity engaged in farming or
ranching, which receives its majority income from such activity, is
also considered to be a farmer or rancher, and thus an eligible
applicant.
(5) Political subdivision. A city, town, borough, county, parish,
district, association, or other public body created by, or pursuant to,
State law, having jurisdiction over the water supply of such public
body.
[[Page 68408]]
(6) Reasonable cost. In connection with the Corps construction of a
well, means the lesser of:
(i) The cost of the Corps to construct a well in accordance with
these regulations, exclusive of:
(A) The cost of transporting equipment used in the construction of
wells.
(B) The cost of investigation and report preparation to determine
the suitability to construct a well.
(ii) The cost to a private business of constructing such a well.
(7) State. Any State, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, Northern Marianas Islands,
American Samoa, and the Trust Territory of the Pacific Islands.
Sec. 203.92 Eligibility criteria and procedures.
(a) Written request. The Governor or his/her authorized
representative must submit a request for assistance in writing to the
responsible Corps district commander. Tribal Nations may request
assistance through the Governor of the State where affected Tribal
lands are located. Requests must provide the following information:
(1) Describe the State, Tribal, and local efforts undertaken.
Indicate if all reasonably available resources have been committed.
(2) Identify the specific needs of the locality, and what is being
requested from the Corps.
(3) Identify additional commitments to be accomplished by the State
or Tribe, to include the entity or agency responsible for development
of the permanent resolution.
(4) Identify the non-Federal project sponsor.
(b) Cooperation agreement. Corps assistance requires a non-Federal
sponsor to enter into a Cooperation Agreement (CA) subject to subpart J
of this part. This agreement must cover specified services and
responsibilities of each party, and provision of a firm schedule for
local interests to provide normal supplies of water.
(c) Duration of assistance. Corps assistance is generally limited
to 90 days. Extension of this 90-day period requires execution of an
amendment to the CA between the non-Federal sponsor and the Corps.
(d) Non-Federal sponsor responsibilities. Non-Federal sponsors are
responsible for:
(1) Adhering to the CA.
(2) Implementation of reasonable water conservation measures.
(3) Operating, fueling, and maintaining any leased or loaned
equipment.
(4) Removing and returning leased or loaned equipment in a fully
maintained condition to the Corps within a reasonable timeframe after
the situation is resolved.
(e) Well construction. Assistance to an eligible applicant for the
construction of a well may be provided only on a cost-reimbursable
basis. Equipment owned by the United States will be utilized to the
maximum extent possible in exercising the authority to drill wells, but
only when commercial firms cannot provide comparable service within the
time needed to prevent the applicant from suffering significantly
increased hardships from the effects of an inadequate water supply.
Assistance may be provided when:
(1) It is in response to a written request by a farmer, rancher, or
political subdivision for construction of a well under Public Law 84-
99.
(2) The applicant is located within an area that has been
determined to be drought-distressed.
(3) The determination has been made that:
(i) The applicant, because of the drought, has an inadequate supply
of water.
(ii) An adequate supply of water can be made available to the
applicant through the construction of a well.
(iii) As a result of the drought, a private business could not
construct the well within a reasonable time.
(4) The applicant has secured the necessary funding for well
construction from commercial or other sources or has entered into a
contract to pay to the United States the reasonable cost of such
construction with interest over a period of years, not to exceed 30, as
the Assistant Secretary of the Army, Civil Works, deems appropriate.
(5) The applicant has obtained all necessary Federal, State and
local permits.
(f) Transport of water.
(1) Assistance may be provided when:
(i) It is in response to a written request by a political
subdivision for transportation of water; and
(ii) The applicant is located within an area that has been
determined to be drought-distressed.
(2) Transportation of water by vehicles, small diameter pipeline,
or other means as determined by the Corps will be at 100-percent
Federal cost.
(3) Corps assistance will be provided only in connection with water
needed for human consumption. Assistance will not be provided for
livestock, irrigation for crop production, recreation, commercial, or
industrial processing under this authority.
(4) Corps assistance will not include the purchase of water, or the
cost of loading or discharging the water into or from any Government
conveyance, to include Government-leased conveyance.
(5) Equipment owned by the United States will be utilized to the
maximum extent possible in exercising the authority to transport water,
consistent with lowest total Federal cost.
Subpart I--Advance Measures
Sec. 203.101 General.
Advance measures consist of those activities performed prior to
flooding or flood fighting activities to protect and mitigate against
loss of life and significant damages to urban areas, public facilities,
flood and coastal storm risk management systems or critical
infrastructure due to an imminent threat of unusual flooding.
(a) Emergency work. Emergency work under this authority will be
considered when requested by the Governor of a State or a Tribal
official confronted with an imminent threat of unusual flooding. Corps
assistance will be scaled to complement the maximum efforts of
responsible State, Tribal, and local interests. Projects will be
designed for the specific threat and temporary in nature.
(b) Contingency planning. The Corps will consider providing
contingency planning assistance for advance measures when requested by
the Governor of a State or Tribal official. Contingency planning
assistance consists of technical assistance and contingency planning
activities to supplement responsible State, Tribal, and local interests
in their efforts to plan for, and protect and mitigate against, loss of
life and significant damages.
(c) Definitions. (1) Imminent threat. A subjective statistical
evaluation of how quickly a threat scenario can develop, and how likely
that threat is to develop in each geographical location. Implicit in
the timing aspect can be considerations of available time (e.g., when
the next flood or storm event is likely to occur), season (e.g., a
snowpack that will melt in the coming spring runoff), or of known
cyclical activities. An imminent threat does not exist when a request
for advance measures identifies threats that can be addressed through
the water resources development project planning process.
(2) Unusual flooding. A subjective determination that considers the
potential for a flood or coastal storm event to cause flooding that
approaches an area's flood of record or is otherwise catastrophic and
that results in significant damage and disruption of the
[[Page 68409]]
normal functioning of a community for an extended period of time.
Sec. 203.102 Eligibility criteria and procedures.
(a) Advance measures assistance. (1) Qualifying conditions. An
imminent threat of unusual flooding must exist before the Corps will
approve advance measures. The threat may be established by National
Weather Service predictions, or by Corps determinations of a threat
unusual flooding due to specific adverse and unusual conditions. The
threat must be clearly defined to the extent that it is readily
apparent that damages will be incurred if preventive action is not
taken immediately.
(2) Written request. The Governor or Tribal official must submit a
request for advance measures assistance in writing to the responsible
Corps district commander. All requests must include the following
information:
(i) Describe the efforts undertaken by non-Federal sponsors and
responsible State, Tribal, and local interests. Verify that all
available resources have been committed.
(ii) Identify the specific needs and describe the advance measures
assistance requested to address those needs.
(iii) Identify additional commitments to be accomplished by non-
Federal sponsors or responsible State, Tribal, and local interests.
(iv) Identify the non-Federal sponsor for the requested advance
measures.
(3) Feasibility. Advance measures must be temporary in nature,
technically feasible, designed to deal effectively and efficiently with
the specific threat, and capable of construction in time to prevent
anticipated damages. A permanent standard of construction may be
considered in certain circumstances in which a specific threat exists
in a multi-year scenario such as wildfire burn scars and subsequent
denuded landscapes and/or cyclical high lake level events on the Great
Lakes.
(4) Economic justification. Advance measures must be economically
justified.
(5) Cooperation Agreement. The requirements of subpart J of this
part apply to the CA for advance measures. The non-Federal project
sponsor must remove temporary works constructed by the Corps when the
operation is over, at no cost to the Corps.
(b) Contingency planning efforts for potential advance measures
activities. Occasionally weather phenomena occur which produce a much
higher than normal probability or threat of flooding which may be
predicted several months in advance of occurrence or significant
impact. Impacts on specific locations may be unpredictable, but
regional impacts may have a high likelihood of occurrence. In such
situations, the Corps may provide technical and contingency planning
assistance to responsible State, Tribal, and local interests,
commensurate with the predicted weather phenomena, based on written
requests for assistance from responsible State, Tribal, and local
interests. Specific proposed advance measures resulting from such
planning efforts must be addressed as specified in paragraph (a) of
this section.
Subpart J--Local Interests/Cooperation Agreements
Sec. 203.111 General.
The Corps and the non-Federal sponsor will sign a Cooperation
Agreement (CA) whenever assistance (other than short-term technical
assistance) is furnished. A CA does not require approval by HQUSACE
unless they contain special or unusual conditions.
Sec. 203.112 Non-Federal sponsor requirements.
It is Corps policy that the provision of assistance under Public
Law 84-99 will, insofar as feasible, require a non-Federal sponsor to
provide, without cost to the United States, all LERRDs necessary for
the assistance activities; hold and save the United States free from
damages due to the assistance activities, exclusive of damages due to
the fault or negligence of the United States or its contractor; and
operate and maintain, in a manner satisfactory to the Corps, any works
constructed by the Corps after completion. If any permanent works are
constructed, then the non-Federal sponsor is required to operate and
maintain the works in accordance with requirements determined by the
Corps. In determining whether a non-Federal sponsor is capable of
fulfilling the non-Federal obligations for a project, the Corps will
consider the non-Federal sponsor's performance capability, taking into
account any shortcomings in meeting prior commitments with Federal
entities, including but not limited to past experiences with the Corps
and any instances when the non-Federal sponsor has been listed as
excluded or disqualified from receiving Federal assistance.
(a) Provision of LERRDs. This item requires the non-Federal sponsor
to provide LERRDs by acquiring all privately owned lands, easements,
and rights-of-way required for the assistance activities; authorizing
the Corps and its contractors to enter onto all lands, easements, and
rights-of-way required for the assistance activities for purposes of
carrying out the assistance activities; performing all facility and
utility relocations required for the assistance activities; and
constructing all improvements to land required to enable the disposal
of dredged or excavated material for the assistance activities. The
Corps will not generally credit the value of LERRDs provided by the
non-Federal sponsor towards any required non-Federal cash contribution
for an assistance activity. If more advantageous to the Federal
government, the Corps, at the discretion of the responsible district
commander, may assume responsibility for the provision of borrow and
disposal areas required for an assistance activity. The scope and
duration of easements and rights-of-way required for an assistance
activity will be determined by the responsible district commander based
on a review of the requirements for the assistance activity.
Requirements that continue for as long as a non-Federal FRM project, or
other public work constructed by the Corps or benefited by an
assistance activity, remains operational generally warrant the
provision of permanent easements and rights-of-way.
(b) Hold and save clause. This obligation serves as legal
protection for the United States. Where land required for an assistance
activity is under tenancy, both the property owner and the tenant
should acknowledge the non-Federal sponsor's signed CA.
(c) Operate and maintain clause. This obligation protects the
investment of Federal resources by requiring the non-Federal sponsor
for an assistance activity to operate and maintain non-Federal FRM
projects and other public works constructed by the Corps or benefited
by the provision of assistance by the Corps. This obligation extends to
all interrelated features of the non-Federal FRM project or other
public work benefited by the provision of assistance by the Corps.
(d) Removal of temporary works. The non-Federal sponsor is
responsible for the removal of all temporary flood risk management
structures and similar works constructed or installed by the Corps
during the provision of flood response, post flood response, advance
measures, or other assistance. This includes the removal of sandbags.
The non-Federal sponsor must initiate action to remove the temporary
works within 30 days after the flood threat has passed.
(e) Equipment. The non-Federal sponsor must operate, fuel, and
[[Page 68410]]
maintain any leased or loaned equipment, and return the leased or
loaned equipment in a fully maintained condition to the Corps within a
reasonable timeframe after the emergency situation is resolved.
(f) Adequacy of local cooperation. In determining the adequacy of
the pledge of local cooperation, responsible district commander must
consider the non-Federal sponsor's performance capability, considering
any shortcomings in meeting prior commitments. Non-Federal sponsors
should make provisions to establish and provide resources for a
``Contingency Fund'' to meet future maintenance requirements if
apparent inadequacies of protective works indicate maintenance costs
will be unusually high. Non-Federal sponsors should make provisions to
establish and provide resources for a ``Capital Improvement Fund'' to
meet future costs of capital improvement projects such as replacement
of culverts in levees, pump station equipment, etc.
(g) Eligibility under other federal programs. The CA must be worded
to allow the non-Federal sponsor to accept funding from other Federal
programs to meet non-Federal obligations. For example, removal of
temporary works will be without cost to the Corps under Public Law 84-
99 assistance but may not be at no cost to the United States. Use of
another Federal agency's funds is contingent upon that agency providing
the Corps a written determination that such usage is specifically
authorized by law.
Sec. 203.113 Funds and cost sharing.
In addition to the standard non-Federal obligations for an
assistance activity that requires execution of a CA, non-Federal
contributions to the assistance activity may be in the form of cash or
in-kind contributions. The final terms agreed upon will be documented
in writing and made a part of the CA before commencement of the
assistance activity.
(a) Provision of in-kind contributions. The non-Federal sponsor may
minimize the amount of any required non-Federal cash contribution for
an assistance activity by providing materials or services in-kind. In-
kind contributions are generally subject to the requirements in 2 CFR
200.306, Cost sharing or matching. In-kind contributions for assistance
activities may be in the form of labor, equipment, supplies, and/or
services. Only in-kind contributions identified in a CA and carried out
after execution of a CA are eligible to be accepted as part of the non-
Federal share of the cost of an assistance activity. In-kind
contributions do not include the provision of LERRDs.
(b) Cost sharing. (1) The Corps may assume up to 100 percent of
eligible costs for emergency repair, rehabilitation, and restoration of
a Federal FRM or Federal CSRM project and up to 80 percent of eligible
costs for emergency repair, rehabilitation, and restoration of a non-
Federal FRM project.
(2) The non-Federal sponsor may elect to assume responsibility for
a larger percentage of eligible costs for emergency repair,
rehabilitation, and restoration of Federal or non-Federal FRM projects
or Federal CSRM projects.
(3) The non-Federal sponsor will fund the cost to implement
modifications of a FRM or Federal CSRM project. The cost to implement
the modification is the difference between the cost to repair the
project to it pre-flood event condition and the cost to repair the
project with the requested modification.
(4) The Corps will normally provide 100 percent of the cost of
advance measures. However, for those projects where a permanent
construction standard (vice a temporary standard) is used, the non-
Federal sponsor will normally be required to provide 35 percent of the
total project cost.
(5) All costs for LERRDs and costs to repair, rehabilitate, or
replace project components or features that the Corps has determined do
not meet Corps guidelines are the responsibility of the non-Federal
sponsor and will not be accepted as part of any required non-Federal
cost share.
(6) The Corps will determine the dollar value of any in-kind
contributions provided by the non-Federal sponsor.
(c) Payment of Costs in Excess of Benefits for Emergency Repair,
Rehabilitation, and Restoration Assistance. The Corps may carry out
emergency repair, rehabilitation, and restoration of a FRM or Federal
CSRM project that is not economically justified if the non-Federal
sponsor provide funds or in-kind contributions in an amount sufficient
to result in a benefit cost ratio of unity or higher for the emergency
repair, rehabilitation, and restoration activities. All of the
following criteria must be satisfied:
(1) The non-Federal sponsor is willing to provide the necessary
funds or in-kind contributions.
(2) Deferred maintenance, deficient maintenance, or negligent
operation did not contribute to the damage.
(3) The proposed rehabilitation effort could benefit another water
resources development project constructed by the Corps.
Sec. 203.114 Project partnership agreements.
(a) Prior to the provision of assistance for, or at the location
of, a Federal FRM or Federal CSRM project, the Corps will review the
existing Project Partnership Agreement (PPA), Project Cooperation
Agreement (PCA) or Local Cooperation Agreement (LCA) to determine if
the PPA, PCA or LCA sufficiently protects the interests of the United
States and the non-Federal sponsor.
(b) If the existing PPA, PCA, or LCA is sufficient, in lieu of
executing a CA, the responsible Corps district commander will notify
the non-Federal sponsor in writing of the determination. The
notification will identify any known cost share requirements and the
requirements contained in Sec. 203.112. The notification will also
advise the non-Federal sponsor that the terms of the executed PPA,
specifically including the hold and save clause and the operation,
maintenance, repair, replacement, and rehabilitation obligation, remain
in full effect and apply as well to the work that will be undertaken
pursuant to Public Law 84-99. Prior to the provision of assistance, the
non-Federal sponsor must confirm in writing these responsibilities and
acknowledge that it will be providing all required LERRDs.
(c) If the responsible Corps district commander determines that the
existing PPA, PCA, or LCA is insufficient to protect the interests of
the United States and the non-Federal sponsor, the non-Federal sponsor
must execute a CA in accordance with this subpart.
Sec. 203.115 Procedures and responsibilities upon completion of
emergency repair, rehabilitation, and restoration work.
The non-Federal sponsor is responsible for the future operation,
maintenance, repair, replacement, and rehabilitation of all emergency
repair, rehabilitation, and restoration work carried out by the Corps
under Public Law 84-99.
[FR Doc. 2022-24543 Filed 11-14-22; 8:45 am]
BILLING CODE 3720-58-P