[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Proposed Rules]
[Pages 12066-12105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02448]



[[Page 12065]]

Vol. 89

Thursday,

No. 32

February 15, 2024

Part IV





Department of Defense





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Department of the Army, Corps of Engineers





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33 CFR Part 234





Corps of Engineers Agency Specific Procedures To Implement the 
Principles, Requirements, and Guidelines for Federal Investments in 
Water Resources; Proposed Rule

  Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / 
Proposed Rules  

[[Page 12066]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 234

[Docket ID: COE-2023-0005]
RIN 0710-AB41


Corps of Engineers Agency Specific Procedures To Implement the 
Principles, Requirements, and Guidelines for Federal Investments in 
Water Resources

AGENCY: U.S. Army Corps of Engineers (Corps), Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes Agency Specific Procedures 
(ASPs) for the Corps' implementation of the Principles, Requirements, 
and Guidelines for water resources investments. It provides a framework 
to govern how the Corps would evaluate proposed water resource 
investments, including identification of which Corps programs and 
activities are subject to the Principles, Requirements, and Guidelines. 
The Corps is proposing this rule in response to congressional direction 
provided in authorizing language in the Water Resources Development Act 
of 2020.

DATES: Comments must be received on or before April 15, 2024.

ADDRESSES: You may submit comments, identified by docket number COE-
2023-0005, 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-2023-0005, in the subject line of the message.
    3. Mail: Stacey M. Jensen, 108 Army Pentagon, Room 3E474, 
Washington, DC 20310-0108.
    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-2023-0005. 
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: Ms. Stacey M. Jensen, Acting Director 
for Policy and Legislation, Office of the Assistant Secretary of the 
Army (Civil Works), 108 Army Pentagon, Washington, DC 20310-0108, at 
(703) 459-6026 or [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Since the Rivers and Harbors Appropriations Act of 1903 (Pub. L. 
57-154), the Corps has been required to consider the benefits of water 
resources investments in relation to their costs. The Flood Control Act 
of 1936 (Pub. L. 74-738) called for the Federal government to improve 
navigable waters or their tributaries for flood control purposes if the 
benefits to whomever they may accrue are in excess of the estimated 
costs. Since then, the Corps has been developing tools and methods for 
developing and evaluating water resource plans and projects.
    Multi-objective water resource planning concepts on a comprehensive 
and nationally coordinated basis were central to the Water Resources 
Planning Act of 1965 (Pub. L. 89-80) and were reflected in Federal 
guidance, the Principles and Standards for Planning Water and Related 
Land Resources (P&S), issued by the Water Resources Council in 1973 (38 
FR 24778). The Water Resources Council was established by the Water 
Resources Planning Act of 1965 (Pub. L. 89-90) to assess and make 
recommendations on national water-related matters and policies (further 
information can be found at 18 CFR 701.3). The P&S reflected two 
Federal objectives for water resources planning, which were to enhance 
national economic development and to enhance the quality of the 
environment.
    Federal water policy moved away from this dual-objective concept 
with the 1983 Economic and Environmental Principles and Guidelines for 
Water and Related Land Resources Implementation Studies (P&G).\1\ The 
P&G combined the two objectives of the P&S into a single, integrated 
Federal objective, which was ``to contribute to national economic 
development consistent with protecting the Nation's environment, 
pursuant to national environmental statutes, applicable executive 
orders, and other planning requirements''. The Water Resources Council 
developed the P&G to guide the formulation and evaluation of 
alternatives in the project planning studies of four of the Federal 
water resources agencies, including the Corps. The Corps has 
implemented the P&G since 1983. The P&G provides that contributions to 
national economic development (NED) are the increases in net value of 
the national output of goods and services, expressed in monetary units. 
It also provides that contributions to NED are the direct net benefits 
that accrue in the planning area and the rest of the Nation.
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    \1\ https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf, last accessed on January 31, 2024.
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    In the P&G, four accounts were established to facilitate evaluation 
and display of effects of alternative plans. The only required account 
is the NED account. The other three accounts were: the environmental 
quality account, which displays nonmonetary effects on significant 
natural and cultural resources; the regional economic development (RED) 
account, which registers changes in the distribution of regional 
economic activity that result from each alternative plan; and the other 
social effects account, which registers plan effects from those other 
perspectives that are relevant to the

[[Page 12067]]

planning process, but are not reflected in the other accounts. Under 
the P&G, the Assistant Secretary of the Army for Civil Works (ASA(CW)) 
may grant an exception to allow the Corps to recommend a plan that is 
not the NED plan. In addition, each alternative plan must be formulated 
in consideration of four criteria: completeness, effectiveness, 
efficiency, and acceptability.
    In 1981, the Water Resources Council chairman requested reduced 
Council funding. The action was consistent with the Reagan 
Administration's position that states should play a more active role in 
water policy activities. All the organizational and staff planning 
functions of the Council and basin commissions were disbanded, and the 
revised set of ``Principles and Guidelines'' were issued in 1983 as one 
of the last formal actions of the Council. Although the Water Resources 
Planning Act has not been repealed and thus authorization of the 
Council remains statutorily, no funding for the Council has been 
appropriated since 1983 (CRS Report, May 11, 2009.) \2\
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    \2\ https://aquadoc.typepad.com/files/crs_report_35_years_water_policy_1973nwc_challenges_11may2009.pdf, 
last accessed on January 31, 2024.
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    Section 2031 of the Water Resources Development Act of 2007 (WRDA 
2007) (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) established a 
National Water Resources Planning Policy. The National Water Resources 
Planning Policy states that all water resource projects should reflect 
national priorities, encourage economic development, and protect the 
environment by: (1) seeking to maximize sustainable economic 
development; (2) seeking to avoid the unwise use of floodplains and 
flood-prone areas and minimizing adverse impacts and vulnerabilities in 
any case in which a floodplain or flood-prone area must be used; and, 
(3) protecting and restoring the functions of natural systems and 
mitigating any unavoidable damage to natural systems.
    Section 2031 of WRDA 2007 also called for the Secretary of the Army 
to revise the 1983 P&G for use by the Corps in the formulation, 
evaluation, and implementation of water resources projects. WRDA 2007 
required that these revisions to the P&G address the following: the use 
of best available economic principles and analytical techniques, 
including techniques in risk and uncertainty analysis; the assessment 
and incorporation of public safety in the formulation of alternatives 
and recommended plans; assessment methods that reflect the value of 
projects for low-income communities and projects that use nonstructural 
approaches to water resources development and management; the 
assessment and evaluation of the interaction of a project with other 
water resources projects and programs within a region or watershed; the 
use of contemporary water resources paradigms, including integrated 
water resources management and adaptive management; and evaluation 
methods that ensure that water resources projects are justified by 
public benefits.
    In 2014, the Council on Environmental Quality (CEQ) completed an 
interagency effort to update the 1983 P&G, which became effective on 
June 15, 2015 (79 FR 77460). This effort resulted in the Principles, 
Requirements and Guidelines (PR&G). CEQ developed the PR&G through this 
interagency process to improve Federal decisions on investments in 
water resources by giving more prominence to ecological, public safety, 
environmental justice, and related concerns.
    The PR&G, which govern how Federal agencies evaluate proposed water 
resource developments, include the following three components: (1) 
Principles and Requirements for Federal Investments in Water Resources 
(P&R, 2013,\3\) providing the overarching concepts that the Federal 
Government seeks to achieve through policy implementation and 
requirements for inputs into analysis of Federal investment 
alternatives; (2) Interagency Guidelines (IG, 2014,\4\) providing more 
detailed guidance for affected Federal agencies, including the 
Departments of the Interior, Agriculture, and Commerce, Environmental 
Protection Agency (EPA), the Corps, the Federal Emergency Management 
Agency (FEMA), and the Tennessee Valley Authority, for determining the 
applicability of the P&R and (3) agency specific procedures (ASPs) 
providing agency specific guidance for identifying which programs and 
activities are subject to the PR&G. The Corps has not issued final ASPs 
to implement the 2013 PR&G.
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    \3\ https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf, last accessed 
January 31, 2024.
    \4\ https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf, last accessed January 
31, 2024.
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    Section 110 of the Water Resources Development Act of 2020 (WRDA 
2020) (Division AA of Pub. L. 116-260) directs the Army to issue its 
final ASPs necessary for the Corps' Civil Works program to implement 
the PR&G. Section 110 of WRDA 2020 also provides that the Army must 
develop Corps projects in accordance with the PR&G as well as Section 
2031 of WRDA 2007. The WRDA 2020 directs Army to provide notice and 
opportunities for engagement and public comments on the development of 
the ASPs. The Army is pursuing this rulemaking to provide codified 
direction for the Corps project planning process, which will achieve 
the purposes of the PR&G, with input from a robust and meaningful 
Tribal and public engagement. This proposed rule follows the general 
framework laid out in the PR&G. The Corps also reviewed and considered 
the ASPs developed by other Federal agencies in developing this 
proposed rule. This rulemaking seeks to formalize the planning 
framework of the Corps under the PR&G in a transparent manner, by 
providing the public an opportunity to comment on the proposed new 
planning paradigm and its requirements. The proposed ASPs would apply 
to plans, projects, or programs that are initiated after any final rule 
may take effect. The Corps would also apply the ASPs to plans, 
projects, or programs that have not yet issued a Draft Environmental 
Impact Statement or similar level of documentation on or before any 
final rule effective date. Note that Army, through the Assistant 
Secretary of the Army for Civil Works, is responsible for policy 
direction and oversight of the Army's Civil Works program, whereas the 
Corps has the lead in implementing the program. Hence this document 
refers both to the Army (for policy direction) and the Corps (for 
implementation responsibility). Although the proposed rule uses the 
language ``water resources development project'', which is consistent 
with the statutory language of section 110 of the Water Resources 
Development Act of 2020, and is the terminology generally used in Corps 
statutes and regulations, the Corps does acknowledge that its role has 
evolved over the years to include developing, managing, restoring, and 
protecting water resources. A more appropriate term to use throughout 
would be ``water resources projects'' rather than ``water resources 
development projects.'' Consistent with this approach, section 2031 of 
the Water Resources Development Act of 2007, the 2013 P&R, and the 2014 
Interagency Guidelines (IG) refer to ``water resources projects''. The 
proposed rule uses ``water resources development projects,'' which is 
the term that the Corps traditionally has used. The Army solicits 
comment on this issue.
    The Army received input from Tribes, Federal and State agencies, 
stakeholders, and other interested

[[Page 12068]]

parties through the issuance of the Federal Register Notice of Virtual 
Public and Tribal Meetings Regarding the Modernization of Army Civil 
Works Policy Priorities; Establishment of a Public Docket; Request for 
Input (Modernize Civil Works) that was published on June 3, 2022 (87 FR 
33756). This Notice solicited public comment on topics including the 
ASPs being considered for this proposed rulemaking. In response to the 
Notice, we received generally supportive comments on the policy 
revision concepts outlined in the Notice and the comments recognized 
the value of using more modern approaches for decision making. Many 
commenters mentioned the need to consider a broader set of benefits 
than can be captured by the Corps' traditional NED account, and many 
endorsed the effort to more fully incorporate climate change, to 
increase collaboration with Tribal, state, and local organizations, and 
to better incorporate the potential ecosystem costs and benefits of 
water resources investments.\5\
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    \5\ Summary document of comments received in response to the 
Federal Register Notice can be found at https://api.army.mil/e2/c/downloads/2022/12/01/d5bd08a7/written-comment-summary-for-prg-for-frn-to-modernize-civil-works.pdf, last accessed January 31, 2024.
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    For ease of comment review and consideration, commenters should 
consider referencing a specific section or paragraph of the proposed 
rule and preamble when providing comments. In addition to solicitation 
on specific areas identified in the preamble, the Corps solicits 
comments in general on issues or concerns related to this proposed rule 
which are not specifically identified in the proposal. For these 
comments, the commenter should clearly 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 proposed regulation.

B. Overview of Proposed Rule

    To promote alignment across the Federal government in the 
implementation of the PR&G, Army opted to use the Department of 
Interior's (DOIs) ASPs as a basis for development of the Corps' ASPs. 
DOIs ASPs were released in 2015 and guide the Bureau of Reclamation in 
water resources investments that have similarities to Corps water 
resources investments. Other agencies with approved ASPs such as EPA, 
FEMA, and the Natural Resources Conservation Service make investments 
in water infrastructure that are less similar, although Army did review 
those agencies' ASPs for background and for areas where consistency 
would be appropriate.
    Two key concepts in the PR&G are ``Federal investment'' and 
``public benefit.'' While the P&G applied to the planning and 
evaluation of alternative plans in the formulation and evaluation of 
water and related land resources implementation studies, the PR&G does 
not merely apply to studies, but rather focuses on Federal water 
resources investments, including projects, plans, and programs that the 
Federal government undertakes whose purposes either directly or 
indirectly alter water quantity, quality, ecosystems, or related land 
management. The level of a given Federal investment would be determined 
on a present value basis over the life of the Federal investment and 
the net public benefits of an investment would be assessed and used to 
guide Federal decision making. Federal water resources investments 
should strive to achieve water resources goals and maximize discounted 
net public benefits, with appropriate considerations laid out in the 
PR&G. These concepts are described in further detail in this preamble. 
The proposed rule ASPs provide a framework for the Corps to be used for 
projects, plans, and programs, and in the planning process, in 
implementing the PR&G for water resources investments.

C. Proposed Sections

    Section 234.1 General. This section of the proposed rule describes 
the background on development of the PR&G as well as the authority for 
the development of the Corps' ASPs as described in the Background 
section of this preamble. Nothing in this proposed rule would change 
any other legal requirements to which the Corps is subject (e.g., 
applicable WRDA provisions).
    Section 234.2 Definitions. This section provides proposed 
definitions for relevant terms used in the ASPs. The Army solicits 
input on additional terms that need to be defined or whether the 
definitions proposed require additional clarity.
    Section 234.2(a) Acceptability. This paragraph provides a 
definition for acceptability. This definition is provided in the P&R. 
Acceptability is one of four criteria to be considered when formulating 
an alternative. Acceptability takes into consideration the general 
public's perspectives in the determination of an alternative's 
viability and appropriateness and ensures consistency with existing 
Federal laws, authorities, and public policies.
    Section 234.2(b) Adaptive management. This paragraph provides a 
definition for adaptive management. This definition is provided in the 
P&R and describes the process to address changes, uncertainty, and 
maximization of goals over time. Adaptive management should be 
incorporated into alternatives, where warranted, to address risk and 
uncertainty.
    Section 234.2(c) Completeness. This paragraph provides a definition 
for completeness. This definition is provided in the P&R and describes 
when an alternative is complete enough to realize the planned effects. 
Completeness does not equate to a particular scope or scale to be 
considered complete. Completeness is one of four criteria to be 
considered when formulating an alternative.
    Section 234.2(d) Effectiveness. This paragraph provides a 
definition for effectiveness. This definition is provided in the P&R 
and describes that an alternative is effective when it alleviates the 
specific problems and achieves the specified opportunities. 
Effectiveness is one of four criteria to be considered when formulating 
an alternative.
    Section 234.2(e) Efficiency. This paragraph provides a definition 
for efficiency. This definition is provided in the P&R and describes 
the extent to which a Federal investment is efficient such that an 
alternative may alleviate the specified problems and realizes the 
specific opportunities at the least cost. Efficiency is similar to 
effectiveness with the additional element of cost consideration. The 
P&R also describes how the Federal investment should promote water 
efficiency to the extent possible when considering water use. 
Efficiency is one of the four criteria to be considered when 
formulating an alternative.
    Section 234.2(f) Federal investment. This paragraph provides a 
definition for Federal investment. The ASPs for implementing the PR&G 
are intended to assist in designing and evaluating potential Corps 
investments in water resources. Federal investments as used in PR&G is 
broad and intended to capture a wide array of activities (e.g., 
projects, programs, and plans) that the Federal government directly 
undertakes relating to water resources. This proposed definition is 
specific to the Corps' potential Federal investments. The P&R does not 
define Federal investments. The P&R includes Federal investments that 
affect water quality or water quantity. However, using this language 
may result in confusion. The Corps has three main Civil Works mission 
areas (commercial navigation,

[[Page 12069]]

flood and storm risk reduction, and aquatic ecosystem restoration) and 
generally will not propose a project whose primary purpose is outside 
of these main missions. Many Corps flood risk management projects can 
be said to affect ``water quantity'' indirectly, insofar as they alter 
the timing and way that water flows in a flood. Similarly, many of the 
dams that the Corps has constructed (primarily to reduce flood risks or 
facilitate commercial navigation) also can be said to affect ``water 
quantity'' insofar as they store water to serve ancillary purposes such 
as hydropower, fish and wildlife, recreation, and water supply. With 
this in mind, the Army invites comments on whether the language 
provided in the P&R or other language on this issue should be included 
in the rule definition.
    Section 234.2(g) Federal objective. This paragraph provides a 
definition for Federal objective, which is the conceptual goal of 
Federal investments in water resources. This basic definition is 
provided in the P&R but originates in the WRDA 2007 where it is further 
detailed in Section 2031 and can be found in this proposed regulation 
at section 234.1(b). The Corps would develop investment alternatives 
based on the Federal objective. The Federal objective should result in 
investments which provide various public benefits, including community 
resilience.
    Section 234.2(h) Indigenous Knowledge. This paragraph provides a 
definition for Indigenous Knowledge based on the Guidance for Federal 
Departments and Agencies on Indigenous Knowledge \6\. Indigenous 
Knowledge shall be considered in and used to inform all aspects of the 
Corps' ASPs, where relevant and applicable.
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    \6\ https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf, last accessed January 31, 2024.
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    Section 234.2(i) Nature-based alternatives. This paragraph provides 
a definition for nature-based alternatives. The proposed definition 
aligns with and generally adopts the definition provided in the 
Opportunities to Accelerate Nature-based Solutions: A Roadmap for 
Climate Progress, Thriving Nature, Equity, & Prosperity \7\ issued by 
the Council on Environmental Quality, the Office of Domestic Climate 
Policy, and the Office of Science and Technology Policy. Consistency 
with this document is important to ensure the Corps approach aligns 
with the other Federal water resources agencies involved in nature-
based solutions. Section 1184 of WRDA 2016 provided definitions of 
``natural feature'' and ``nature-based feature'' specific to providing 
risk reduction. This authorization requires the Corps to consider such 
features, as appropriate, in its feasibility studies for flood risk 
management, hurricane and storm damage reduction, and ecosystem 
restoration projects, with the consent of the non-Federal interest. 
Section 1149 of WRDA 2018 modified Section 1184 of WRDA 2016 to include 
additional direction to the Corps on the inclusion of such features in 
flood risk management, hurricane and storm damage reduction, and 
aquatic ecosystem restoration projects. Section 116 of WRDA 2020 
requires the Corps to document the consideration of natural and nature-
based alternatives in the study of flood risk management and hurricane 
and storm damage reduction, including estimates of long-term costs and 
benefits of such alternatives. Under the proposed regulation, a nature-
based alternative is entirely comprised of nature-based features. The 
Corps would include for consideration in the final array of 
alternatives a nature-based alternative, if feasible. Where a nature-
based alternative is not feasible or would not be fully effective, the 
Corps would consider including in the final array an alternative that 
includes nature-based solutions along with other features. The Army 
recognizes that nature-based solutions have an important place for 
consideration in Civil Works projects but may not be appropriate in all 
circumstances as a way to address the subject water resources problems. 
For example, other considerations in the proposed ASPs may result in 
the maximization of public benefits being achieved through an 
alternative method. The Corps would focus on results-driven solutions 
as opposed to dictating one specific method over another for addressing 
the water resources solution at hand, with appropriate consideration of 
the net benefits. In addition, nature-based solutions as components of 
the other alternatives included in the final array and as part of any 
final recommendation as part of a comprehensive solution are 
encouraged.
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    \7\ https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf, last accessed January 31, 2024.
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    Section 234.2(j) Non-Federal interest. This paragraph provides a 
definition for the non-Federal interest. The proposed definition is 
taken from 42 U.S.C. 1962d-5(b). The P&R uses the term ``local 
interest'' and does not define ``non-Federal interest.'' The P&R 
definition of local interest is a non-Federal entity with some level of 
oversight or implementation responsibility associated with a water 
resources investment. Under the P&R, the local interest could be a 
community or a state or local government agency, for example. For Corps 
projects, this generally would be the non-Federal interest. For clarity 
on the Corps Civil Works process and consistency with who can legally 
be a partner on Corps projects and/or be responsible for operation and 
maintenance, as well as to tailor the PR&G to the Corps processes, the 
Army is proposing to use the term ``non-Federal interest'' rather than 
``local interest'' in the proposed regulation. However, the Army 
intends for the non-federal interest to fill the role of the local 
interest as identified in the PR&G. For many of the flood risk 
management projects that the Corps constructs, the non-federal interest 
owns the project and is responsible for its operation and maintenance 
after construction. The non-federal interest generally also is the 
cost-share partner on the project, which includes having a level of 
oversight and implementation responsibility as envisioned in the P&R 
definition of local interest. The Army solicits comments on whether 
equating the non-federal interest with the local interest is an 
appropriate approach for implementation of this provision of the PR&G. 
The P&R provides that an alternative plan, strategy, or action that is 
preferred by a local interest with oversight or implementation 
responsibilities must be included in the final analysis. Similarly, 
this proposed regulation provides that an alternative that is locally 
preferred (i.e., the alternative preferred by the non-federal interest) 
must be included in the final array of alternatives. The Army also 
recognizes that the planning process is shared with the non-Federal 
interest and solicits recommendations on how best the ASPs can 
incorporate and identify the role of the non-Federal interest in the 
process.
    Section 234.2(k) Nonstructural alternative. This paragraph provides 
a definition for nonstructural alternative. A nonstructural alternative 
is entirely comprised of nonstructural approaches. The proposed 
regulation would require the Corps to include for consideration in the 
final array of alternatives a nonstructural solution, if feasible. 
Where a nonstructural solution is not feasible or would not be fully 
effective, the Corps would include for consideration in the final array 
an alternative that is primarily nonstructural, if feasible.
    Section 234.2(l) Nonstructural approaches. This paragraph provides 
a definition for nonstructural approaches. This definition is provided 
in the P&R however, illustrative examples were

[[Page 12070]]

added for clarity. These examples are not intended to be limiting but 
instead provide a sense of the types of actions which fall under 
nonstructural approaches. The Army solicits comment on whether these 
are appropriate examples and context for the term ``nonstructural'' or 
whether modifications should be made to any final definition or list. 
The nonstructural approaches are intended to apply across the Corps 
missions and activities that are subject to the PR&G. Nonstructural 
approaches are methods and practices employed to alter the use of 
existing infrastructure through human activities as opposed to altering 
physical interaction of water and land. Nonstructural approaches can 
include things like policy modifications or floodproofing of existing 
infrastructure. Alternatively, structural approaches would include 
things such as new construction of water resources infrastructure or 
structural modification to enlarge an existing dam or levee. As 
referenced under the nature-based alternative definition discussion in 
the preamble, various WRDA provisions require the Corps to incorporate 
nonstructural and nature-based solutions in plan formulation. Army 
solicits comment on whether this proposed definition best meets or 
enables the implementation of the PR&G to achieve long-term planning 
goals and objectives of the PR&G, including the avoidance of the unwise 
use of floodplains and the Guiding Principle of healthy and resilient 
ecosystems.
    Section 234.2(m) Public benefits. This paragraph provides a 
definition for public benefits. Public benefits encompass economic, 
environmental, and social benefits, and include those that can 
currently be quantified in monetary terms, as well as those that can be 
quantified or described qualitatively. The PR&G provides for the 
maximization of public benefits relative to costs. This definition is 
provided in the P&R. In comparison, the P&G Federal objective of water 
and related land resources project planning is to contribute to 
national economic development (NED) (or national ecosystem restoration 
(NER) for aquatic ecosystem restoration), consistent with protecting 
the Nation's environment, pursuant to national environmental statutes, 
applicable executive orders, and other Federal planning requirements. 
Contributions to NED under P&G are increases in the net value of the 
national output of goods and services, expressed in monetary units and 
are the direct net benefits that accrue in the planning area and the 
rest of the Nation. Contributions to NED include increases in the net 
value of those goods and services that are marketed, and also of those 
that are not marketed.
    A particular alternative may create changes that result in benefits 
in more than one benefit category; however, the Corps would assign the 
benefits to the most appropriate category and thereby avoid double 
counting. The definition is not intended to be construed as privately 
driven benefits, but rather for the general public reflecting the goals 
of the nation. Typically, public benefits (like public goods) are 
available to all (nonexcludable) and are non-rivalrous. Generally, 
these benefits are intended to accrue to society as a whole and not 
solely for the benefit of certain private persons or entities, although 
private persons or entities may ultimately benefit (e.g., reduction in 
private property damages as a result of a coastal storm risk management 
project). Cost-savings to industry as a whole (e.g., navigation 
industry), for example, benefit society and therefore would be 
accounted for in the analysis. In addition, avoided property damages 
and life safety would also be accounted for as public benefits although 
they benefit individuals as well. Benefits which may be viewed as more 
local in nature are reflected in the ASPs through the use of the 
watershed-based approach that considers the benefits of water resources 
for a wide range of stakeholders within and around the watershed, 
through collaboration and coordination with communities and local 
governments, as well as including the locally preferred alternative 
identified in the final array. The Army solicits comment on how 
benefits to Tribal Nations should be described, such as whether 
benefits to Tribal Nations should be considered as a Federal trust 
responsibility, and whether Tribal Nation benefits should be called out 
separately from the overarching ``public benefits.''
    Section 234.2(n) Regulatory. This paragraph provides a definition 
for regulatory. This definition is provided in the P&R and is a general 
definition of actions which are regulatory in nature promulgated by the 
Federal government. Regulatory can include the promulgation of 
regulations as well as other activities such as permit decisions.
    Section 234.2(o) Resilience. This paragraph provides a definition 
for resilience. This definition is provided in the P&R and can be 
applied to many different areas within the proposed rule such as 
climate resilience, including grid resilience when relevant, ecosystem 
resilience, and water resilience, regarding how climate, ecosystems, 
and water responds to changes. The resilience of a water resource 
solution should be considered in alternatives analysis and tradeoffs 
discussion. The Corps implements four principles related to resilience: 
prepare, absorb, recover, and adapt. There is also a definition 
provided for resilience in Executive Order 13653 (78 FR 66817), which 
the Corps currently uses in its Resilience Initiative.\8\ The 
definition provides that resilience is the ability to anticipate, 
prepare for, and adapt to changing conditions and withstand, respond 
to, and recover rapidly from disruptions. This definition can have 
application to both natural and human-made entities. In addition, there 
is a definition of resilience provided in the National Climate 
Resilience Framework \9\ as well as in M-24-03, Advancing Climate 
Resilience through Climate-Smart Infrastructure Investments and 
Implementation Guidance for the Disaster Resiliency Planning Act.\10\ 
The Army solicits comment on whether the resilience definition provided 
in the Executive Order or the National Climate Resilience Framework or 
M-24-03 should be included in the regulation instead of or in addition 
to the proposed definition. The Army also solicits comment on whether 
additional concepts from these documents should be included in the 
rule, and if so, in what manner related to the use of resilience in the 
rule. The usage of the Corps' definition would be more efficient in 
implementation as it is familiar to the Corps and more directly relates 
to Corps missions; however, the proposed definition would be consistent 
with the PR&G and would apply resilience in a broader sense. There are 
areas discussed in the PR&G related to resilience that go beyond 
climate-related resilience.
---------------------------------------------------------------------------

    \8\ https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf, last accessed January 31, 2024.
    \9\ https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf, last accessed 
January 31, 2024.
    \10\ https://www.whitehouse.gov/wp-content/uploads/2023/11/M-24-03-Advancing-Climate-Resilience-through-Climate-Smart-Infrastructure-Investments.pdf, last accessed January 31, 2024.
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    Section 234.2(p) Sustainable. This paragraph provides a definition 
for sustainable. This definition is provided in the P&R and refers to 
the conditions where humans and nature are able to coexist. The P&R 
generally uses the term ``sustainable'' in the context of seeking to 
maximize sustainable economic development, which is one component to 
achieve the Federal objective. Investments in sustainable economic

[[Page 12071]]

development contribute to the Nation's resilience. The P&R also 
provides that alternative solutions should improve the economic well-
being of the Nation through the sustainable use and management of water 
resources ensuring both water supply and water quantity. Sustainability 
would also incorporate the maximization of net benefits while fully 
considering the option of, and value of, preserving resources for 
future uses or non-uses, and fully considering the preferences of 
future generations through appropriate analytical timeframes and 
discount rates.
    Section 234.2(q) Tribal Nation. This paragraph provides a 
definition for Tribal Nation. This definition is consistent with the 
Federal government's definition and identification of a Tribal Nation 
by the Secretary of Interior. This definition is also used and applied 
to other Corps programs, such as the Tribal Partnership Program. The 
Army recognizes that there are other Indigenous populations, Native 
Hawaiian Organizations, and non-federally recognized Tribes which may 
not meet the definition as proposed, and solicits comments on whether 
these populations should be defined separately for purposes of the 
PR&G. Regardless of definitions and legal authorities applied to the 
Civil Works programs, the Corps would ensure full outreach and 
coordination occurs with all Tribal Nations, Indigenous populations, 
Native Hawaiian Organizations, and non-federally recognized Tribes as 
relevant to a particular water resources investment as described in the 
preamble discussion under paragraph 234.6(d). Such outreach and 
coordination would be separate from government-to-government 
consultation requirements. Many of these include communities having 
environmental justice concerns. Environmental justice is one of the 
Guiding Principles of the PR&G and this proposed rule.
    Section 234.2(r) Unwise use of floodplain. This paragraph provides 
a definition for unwise use of floodplain. This definition is provided 
in the P&R and describes conditions which result in a floodplain that 
is no longer self-sustaining. Seeking to avoid the unwise use of 
floodplains is also a component of how to achieve the Federal 
objective. The appropriate floodplain per this definition and 
application under the proposed ASPs is case-specific and should 
consider the scope and scale of the problem and potential benefits when 
determining the geographic boundary. Per the P&R, Federal actions 
should seek to reduce the Nation's vulnerability to floods and storms. 
Unwise uses include those that would significantly increase or shift 
flood risks to other populated areas, or otherwise would result in net 
adverse impacts to human health, safety, welfare, property, natural 
resources, or the natural and beneficial functions of floodplains 
(e.g., natural water storage, water filtration, groundwater 
infiltration, sediment retention). The Army solicits comment on how 
evaluations of self-sustainment may occur in occupied or inhabited 
floodplains.
    Section 234.2(s) Watershed. This paragraph provides a definition 
for watershed. This general definition for watershed is provided in the 
P&R and does not go into detail regarding a specific method or size to 
identify a watershed. Using a watershed approach is a Principle under 
P&R to ensure a more holistic view of the problem and potential 
solutions. The appropriate size of watershed to assess is case-specific 
and should consider the scope and scale of the problem and potential 
benefits when determining the geographic boundary.
    Section 234.3 Exceptions. The proposed ASPs describe a way to 
request an exception to the rules or policies contained in the Corps' 
proposed ASPs. The exception must be submitted in writing and the 
decision-maker is the ASA(CW). As there are already proposed exemptions 
for the application of the PR&G laid out in the proposed rule as well 
as different levels of analysis proposed based on specific thresholds, 
the Army believes that exception requests would be a rare circumstance. 
In addition, since Army intends for PR&G to apply to those non-exempt 
programs and areas specified in the proposed rule, the ASA(CW) is the 
appropriate decision-maker level for approving exceptions.
    Section 234.4 Objectives and applicability.
    Section 234.4(a) Introduction. This paragraph of the proposed rule 
states the goals and objectives of the Corps' ASPs. The proposed rule 
would help ensure consistency and transparency in implementation of the 
PR&G by the Corps. The common framework provided in the ASPs will drive 
that consistency and codifying the ASPs in regulation would ensure 
transparency for the public, as well as an opportunity for review and 
comment prior to finalization through the rulemaking process. The Corps 
has various guidance documents for its water resources development 
project planning process, but the proposed ASPs would ensure all 
projects, plans, and programs subject to the PR&G are using the same 
Guiding Principles and considerations in developing alternatives and 
recommendations. Upon finalization of any rule regarding the Corps' 
ASPs, the Corps would review its existing guidance documents and 
rescind, modify, or develop new guidance as needed to comport with and 
further the objectives of the Corps' ASPs. However, these proposed ASPs 
are intended to stand on their own regarding the overall framework and 
provide the guideposts for the Corps when implementing the PR&G. 
Comments are solicited which may help identify where additional details 
may be warranted in any final rule and preamble and where additional 
specific technical tools or methodologies may be warranted in follow-on 
Corps guidance documents.
    Section 234.4(b) Objectives for Federal water resources 
investments. This paragraph of the proposed rule provides the Federal 
objective for Federal water resources investments as provided in WRDA 
2007 (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) and elaborates on 
the definition of Federal objective provided at 234.2(l). The WRDA 2007 
also described more specifically how to accomplish the Federal 
objective. The Federal investments must reflect national priorities, 
encourage economic development, and protect the environment by seeking 
to maximize sustainable economic development; by seeking to avoid the 
unwise use of floodplains; and by protecting and restoring the 
functions of natural systems and mitigating unavoidable impacts. 
Consideration of the Guiding Principles and the application of the 
Requirements in P&R through development of Federal water resources 
investment decisions assists in achieving the Federal objective. The 
WRDA provision did not provide a hierarchy for how to accomplish the 
objective nor does this proposed rule.
    National priorities may include general priorities (e.g., health 
and safety) but can also include more specific priorities that emerge 
and may evolve over time. There are also often multiple national 
priorities at any one time, all of which should be considered and 
reflected in Federal water resources investments to the extent 
relevant. Such priorities can be found in enacted laws and 
Administration priorities and are informed by stakeholder and community 
engagements. The Corps would also fulfill their Tribal trust 
responsibilities under applicable treaties.
    For example, the PR&G calls for sustained economic development 
through building more resilient

[[Page 12072]]

communities. The Federal water resources investments also must protect 
and restore the environment, where applicable, as part of the effort to 
maximize net public benefits to society. This protection and 
restoration could be achieved partly via improvements made to the 
environment through the proposed action, compliance with applicable 
environmental laws and regulations, including/or through the avoidance, 
minimization, and mitigation sequencing applied to impacts to the water 
resources environment, and through assuring the greatest provision of 
ecosystem services achievable that protects public health and welfare.
    One means to accomplish the Federal objective is to seek to 
maximize sustainable economic development. As described in the 
definitions section of the proposed rule at 234.2(y), sustainable 
economic development would provide the conditions where the coexistence 
of humans and nature flourishes. Sustainable economic development would 
improve the national welfare through investments that improve national 
economic efficiency, but not at the expense of the water resources. 
Rather, economic activity would proceed in such a manner that is not 
negatively impacting the sustainability of the water resources 
environment. In some cases, for example, nature-based solutions may be 
both more resilient and maximize net public benefits. The sustainable 
economic development Guiding Principle is further described in Section 
234.6(c)(5) of the proposed rule and preamble.
    In accordance with WRDA 2007, another means to accomplish the 
Federal objective is through seeking to avoid the unwise use of 
floodplains and flood-prone areas. This Guiding Principle is also 
further described in Section 234.6(c)(2) of the proposed rule and 
preamble. The key principle is to avoid actions that result in a 
reduction in public health and safety or result in a floodplain that is 
no longer self-sustaining. However, it is important to recognize that 
many Corps Civil Works water resources development projects are out of 
necessity located in floodplains and are not considered an unwise use 
of floodplains simply due to their location. The Corps will strive to 
sustain the floodplains natural and beneficial functions to the maximum 
extent practicable in light of the project's purpose. For example, 
public health and safety are considered in the evaluation and 
formulation development of a proposed Corps water resources development 
project, but this sometimes may result in a project that does not fully 
contribute to the sustainment of floodplain natural and beneficial 
functions.
    The last means to accomplish the Federal objective provides that 
the Corps shall protect and restore the functions of natural systems 
and mitigate any unavoidable damage to natural systems. This concept is 
embedded in the Corps' compliance with environmental laws and 
regulations, such as the Clean Water Act and NEPA. In general, the 
Corps aims to improve environmental conditions when possible, and when 
not possible, sequences consideration of mitigation related to 
potential damages as avoidance, minimization, and compensatory 
mitigation. Certain Corps water resources development projects have the 
goal to restore and protect aquatic ecosystems as their primary 
purpose, such as aquatic ecosystem restoration projects under Section 
206 of WRDA 1996 (Pub. L. 104-303), as amended.
    Section 234.4(c) Net public benefits. This paragraph of the 
proposed rule describes the net public benefits to society, which are 
to be maximized. Net public benefits are to be used to justify water 
resources development projects per WRDA 2007. Per the P&R, public 
benefits encompass three goals--economic, environmental, and social. In 
addition, public benefits include those that can be described in 
monetary terms, and those that can be quantified or described using 
other terms. The IG provides as a key aspect stating that the 
environmental, economic, and social impacts are interrelated, and there 
is no hierarchy among their goals in a PR&G analysis. In addition, the 
P&R provides that solutions to water resource needs may produce varying 
degrees of effects relative to environmental, economic, and social 
goals and that no hierarchal relationship exists among these three 
goals. As a result, tradeoffs among potential solutions will need to be 
assessed and communicated during the decision making process. All key 
benefits and effects relevant to the investment decision would be 
displayed and given consideration. For a particular water resources 
development project, the Corps study would take into consideration the 
given study purpose and specific water resource challenge to 
appropriately identify and assess benefits and effects across the 
categories which will naturally vary across Corps studies.
    Federal investments in water resources have been mostly based on 
economic performance assessments under the P&G, which largely focus on 
investments that will improve national economic efficiency. This focus 
on national economic gains sometimes resulted in an unduly narrow 
benefit-cost comparison of the monetized and quantified effects. The 
P&G provided that contributions to NED would be expressed in monetary 
units. Although the benefits in the other three accounts were included 
in the overall analysis and available to decision-makers under the P&G, 
they often, with some exceptions (e.g., aquatic ecosystem restoration 
studies and dam safety studies), were not the key drivers in the final 
decision-making as compared to the monetized and quantified national 
economic efficiency effects.
    The PR&G emphasizes that relevant environmental, social and 
economic effects should all be considered and that both quantified and 
unquantified information will form the basis for evaluating and 
comparing potential Federal investments in water resources to the 
Federal objective. The ASPs make clear that the Corps will use 
monetized and quantified data to the extent practicable, but that 
unquantified information will be fully considered as well. This more 
integrated approach would allow decision-makers to view a more complete 
range of effects of alternative actions and lead to more socially 
beneficial investments. See preamble sections 234.9 and 10 for further 
discussion on the use of unquantified data and decision-making.
    A separate distributional analysis can be utilized to examine 
regional economic benefits. The P&G included regional economic 
development as one of four ``accounts'' for facilitating evaluation and 
display of effects of alternative plans. As stated in the Background 
section, the RED account registered changes in the distribution of 
economic activity that result from each alternative plan. These 
economic effects amount to a transfer of resources from one part of the 
Nation to another (either from one region of the country to another, or 
within a region). They accrue in a local area or region but are offset 
by equivalent losses elsewhere in the country.
    The PR&G implementation would include other potentially important 
distributional effects, including environmental and social effects 
considerations at the regional level. The non-federal interest and 
local organizations and communities can provide valuable information to 
inform these assessments for a proposed water resources investment, 
providing that local knowledge and valuation as the Corps seeks to 
identify more of a community-driven solution under the

[[Page 12073]]

implementation of the ASPs than what is implemented under the current 
P&G policy.
    Having a more holistic view and recognition that water resources 
development projects can provide a multitude of benefits allows for the 
whole story to be told regarding alternatives being considered for 
Federal water resources investments. For example, this more holistic 
view will enable more informed decision-making for Federal investments 
to truly identify in the final array of alternatives what will best 
enable resilience for the Tribal Nation, when applicable, or the 
community, the region, and the Nation. Public benefits also include 
consideration of public assets that contribute to community resilience, 
such as by reducing the flood risk to property, housing, and other 
existing infrastructure, etc.
    Some benefits may be difficult to bucket into a category of 
economic, environmental, or social. Analysts are encouraged to be as 
specific as possible, and when categories cannot easily be assigned, 
and to describe the relevance when evaluating alternatives. Double 
counting should be avoided. If benefits appear to accrue to more than 
one category, development of logic models, exploration with experts or 
other methods can help specify benefits further and parse effects into 
different categories, representing the full set of effects and avoiding 
double counting. In addition, when economic, environmental, and social 
goals compete, the Corps would describe such instances and include the 
considerations in the tradeoff analysis (see 234.10(b)). The important 
component is to consider complementary and consistent formulation of 
the various benefits. Army solicits comment on whether net public 
benefits should be described without the additional step to categorize 
them into economic, environmental, and social in order to display all 
benefits in their entirety without the risk of double-counting or 
having to identify a specific benefit category when there may be 
overlap.
    Army is also soliciting comments on whether it should be 
acknowledged that Tribal benefits are part of the Tribal trust 
responsibility in implementing the PR&G and whether Tribal benefits 
should be called out separately from ``public benefits''. In addition, 
in many circumstances, Indigenous Knowledge can be used to inform the 
benefits that may accrue as a result of any given alternative providing 
more transparency on the entirety of benefits provided to better inform 
decision making.
    Some benefits are also difficult to monetize or quantify, for 
example, non-use values of wildlife loss (e.g., existence or bequest 
values), or some culturally valued experiences (e.g., spiritual 
connection to nature and option to lead a subsistence way of life). In 
this particular area, we solicit comments as to approaches and tools 
that may be employed to best enable the Corps to have consistent and 
transparent implementation, including through the use of any final 
guidance provided by the Office of Management and Budget on ecosystem 
services in response to its August 2, 2023 proposal (88 FR 50912).
    The quantification of benefits relates to several evolving fields 
and new methods may develop over time. The PR&G and the Corps' proposed 
ASPs emphasize that benefits should be monetized when possible, 
quantified when they cannot be monetized, and described when neither 
monetization nor quantification is possible with available 
methodologies and data. Where qualitative descriptions and analysis are 
used, they should be of sufficient detail and quality to enable the 
decision-maker to make informed decisions. In addition, the Army 
solicits comment on whether life safety benefits should be specifically 
identified, and if so, under which of the three ASPs benefits category, 
social, environmental, or economic category (see Section 234.9(c) for 
additional information on these categories).
    Under the ASPs, consideration of the range of benefits (economic, 
environmental, and social benefits) is the integral component of the 
planning process. The process should look beyond simply starting with 
the National Economic Development/National Ecosystem Restoration plan 
and then only filling in the other requirements of the ASPs when those 
benefits are needed for project justification.
    Development of a comprehensive plan to address the water resources 
challenge must begin in the earliest phases of the planning process and 
would continue throughout the process, as detailed through the Federal 
objective, Guiding Principles, and planning process framework provided 
in this proposed rule. There may also be instances where the Corps' 
existing tools and resources in calculating the four P&G accounts, 
national economic development, regional economic development, 
environmental quality, and other social effects, may still be relevant 
in implementing the PR&G, where appropriate.
    Section 234.4(d) Applicability. This proposed rule paragraph 
describes the projects and programs that must use the PR&G framework 
and outlines those projects and programs that are excluded from 
performing a PR&G analysis. Essentially the PR&G will apply to all 
Corps projects and programs that are not identified as excluded in 
234.4(d)(2). Per the PR&G, it was never intended that PR&G apply to all 
projects and programs for water resources agencies and the list of 
exclusions is consistent with the PR&G exclusions and applicability 
discussion. The Army invites comment on additional projects and 
programs that should be covered under the PR&G or, conversely, 
additional projects and programs to which the PR&G should not apply. 
The proposed excluded projects and programs either fall below the 
thresholds identified in Table 1 of the proposed rule, or are 
considered to be small and routine such that it would not be 
appropriate to have the PR&G apply. This does not mean that those 
projects or programs do not have to follow the relevant laws, 
regulations, and general planning processes simply because they are 
excluded from PR&G. Even though such projects or programs would be 
excluded from the full application of the ASPs and the PR&G, those 
projects and programs should still strive to meet the intent of the 
ASPs by applying similar concepts where relevant. With respect to a 
project or program that meets a NEPA categorical exclusion, such 
exclusion does not automatically trigger an exclusion for application 
of the PR&G. However, many of these projects and programs may meet the 
terms of an exclusion under both NEPA and the proposed ASPs.
    Also, the proposed ASPs would also apply to non-Federal interests 
who undertake feasibility studies, such as under Section 203 of WRDA 
1986, as amended. The WRDA provisions, as amended, provide that the 
study, and the process under which the study was developed and 
conducted by a non-Federal interest would be reviewed by the Secretary 
to determine whether it complies with Federal laws and regulations 
applicable to feasibility studies of water resources development 
projects. These would include this proposed rule.
    In proposed paragraph 234.4(d)(2), some actions that are excluded 
under the PR&G for the Corps' proposed ASPs include the Corps' 
Regulatory Program as well as Section 408 actions as there is no 
proposed Federal water resources investment being considered. As 
provided in section 14 of the River and Harbors Appropriations Act of 
1899, as

[[Page 12074]]

amended (33 U.S.C. 408), the Section 408 process serves to ensure that 
an action proposed by another entity (a party other than the Corps) for 
the temporary or permanent alteration or use of a civil works project 
will not be injurious to the public interest and will not impair the 
usefulness of that Corps project. Regulatory actions are listed in the 
Interagency Guidelines as excluded activities. However, this exclusion 
does not apply to regulatory compliance actions related to activities 
that are subject to the PR&G, such as compliance with the Endangered 
Species Act. Real estate actions of the Corps, such as easement 
decisions on existing Corps lands and land disposal actions, are also 
proposed to be excluded as these also do not result in a proposed 
Federal water resources investment. Technical services programs, such 
as Planning Assistance to States and Flood Plain Management Services, 
are also proposed to be excluded as these programs support state and 
local water resources planning efforts, rather than a proposed Federal 
water resources investment. Similarly, these actions were excluded 
under P&G as they do not develop Federal water resources planning 
studies.
    The Corps' PL 84-99 Program is also proposed to be excluded from 
the PR&G as the program provides for emergency activities prior to, 
during, and after a flood event. The framework for the PR&G generally 
is not well suited for this program, under which the Corps prepares 
for, responds to, and assists certain eligible communities in their 
recovery after a flood or other natural disaster. The Army solicits 
comment on whether modifications allowed under the PL 84-99 program 
should not be excluded from the PR&G. Emergency actions in general 
under the Corps' disaster response emergency operations are to be 
excluded from the PR&G as a different set of procedures and 
considerations must be employed in responses to emergencies, rather 
than a traditional planning-type process. The Interagency Guidelines 
provides that short-term actions to remove immediate danger to public 
health and safety or prevent imminent harm to property or the 
environment should be excluded. This would not apply to longer-term 
actions to rehabilitate damaged resources or prepare for future 
emergencies.
    Also proposed to be excluded is the Corps' implementation of its 
Water Infrastructure Finance and Innovation Act (WIFIA) program. The 
criteria for that program are included in the final rule issued for 
this program (88 FR 32661). In general, the Corps' WIFIA program is 
authorized to provide credit assistance in the form of direct loans and 
loan guarantees for investments by non-Federal interests to address dam 
safety concerns at their non-Federal dams. Corps water resources 
development projects are not eligible for funding under WIFIA and the 
program is limited to financial assistance for non-federal dam safety 
projects, so the PR&G would not apply. Similarly, environmental 
infrastructure projects are proposed to be excluded. The Corps may 
provide funding to certain of these non-federal projects such as 
wastewater treatment systems where authorized by law. These also are 
generally smaller-scale projects.
    In addition, land management plans are proposed to be excluded from 
implementing the PR&G for the Corps. Land management plans are broadly 
used to guide the management and development of recreational, natural, 
and cultural resources on Corps project lands throughout the life of 
the Corps project. The Interagency Guidelines also provides that there 
may be existing agency procedures that meet the purpose and intent of 
the PR&G for Federal investments, which includes land management 
planning processes. The Corps' development of land management plans is 
subject to such equivalent procedures.
    Also, operations and maintenance (O&M) activities carried out in a 
manner consistent with an existing O&M manual or O&M plan for an 
authorized project would be excluded under the proposed rule from the 
PR&G. The original O&M envisioned by the original project authorization 
would be considered and evaluated under the ASPs in the investment 
decision making process. In the absence of changed conditions, 
activities that are generally expected as part of normal, planned 
operations may be excluded from PR&G analysis using an appropriate 
threshold if they have been analyzed during the original project or 
program analysis and are consistent with the existing approved O&M 
manual or O&M plan. Compliance with other Federal statutes and laws 
would still be required. However, the PR&G would apply when significant 
changes to O&M plans are proposed or changes to meet new goals are 
proposed that raise additional considerations for water resources 
investments.
    Two other types of activities proposed to be excluded from the PR&G 
for the Corps are monitoring (e.g., water quality monitoring or fish 
monitoring) and research. Such activities may be used to inform Federal 
investments in a proposed or existing water resources development 
project, but they are not water resources development projects or 
investment decisions themselves. The Interagency Guidelines provide 
that the PR&G is not intended to include data collection, except 
insofar as its purpose is to inform an investment decision involving 
permanent site-specific actions.
    The Corps' Interagency and International Support and Support for 
Others program actions are also proposed to be excluded. In addition, 
these actions are provided on a reimbursable basis and as such are 
assistance to other programs and not part of Federal investments as 
other activities covered under the proposed ASPs. The Corps performs 
these activities on a reimbursable basis. All of the work that the 
Corps performs under this program is requested by other agencies, which 
pay the Corps the full cost of providing these services. For example, 
on a reimbursable basis, the Corps provides technical assistance under 
this program to non-DoD Federal agencies, state and local governments, 
Tribal Nations, private U.S. firms, international organizations, and 
foreign governments. The Corps also provides engineering and 
construction services, environmental restoration and management 
services, research and development assistance, management of water and 
land related natural resources, relief and recovery work, and other 
management and technical services. While some of this work may be 
related to a water resources investment by another Federal agency, it 
is not related to an investment decision by the Corps and, as such, is 
not covered under the proposed ASPs. Although excluded from the ASPs, 
the Corps' international programs are subject to other international 
environmental requirements and DoD environmental commitments.
    In addition, those projects, programs, or plans that meet the 
threshold criteria in the proposed Table 1 for exclusions are generally 
for routine investments. In most cases, these investments would not 
have significant adverse effects on water resources. Also included in 
the proposed list of exclusions are those programs, plans, or projects 
which fall under an exception at 234.3.
    The Army solicits comment on whether additional exclusions should 
be added, such as dredged material management plans, the Tribal 
Partnership Program, the Continuing Authorities Program, and Major 
Rehabilitation Evaluation Reports due to scope, scale, level of 
investment, project partner, technical nature of product, etc. Some of 
these also have programmatic

[[Page 12075]]

authorizations from Congress (i.e., Tribal Partnership Program and 
Continuing Authorities Program) and as such will not follow the full 
planning process provided in the proposed ASPs as they do not result in 
a recommendation to the Congress. In addition, the Army solicits 
comment on whether any of the actions identified as proposed exclusions 
in the rule should not be excluded, in which case the ASPs would apply 
to them. Also, the Army solicits comment on whether watershed studies 
should be specifically included to ensure that they align with the 
goals of the PR&G and result in better outcomes for integrated water 
resources management. These studies do not fit into the categories 
described above and additional clarity may be needed as to whether they 
are covered under the PR&G. Section 729 of WRDA 1986, as amended, and 
other specifically authorized watershed authorities allow the Corps to 
study the water resources needs of river basins and regions of the 
United States, in consultation with federal, state, tribal, interstate 
and local governmental entities. These studies go beyond project 
planning for specific Corps projects towards more comprehensive and 
strategic evaluations and analyses that include diverse political, 
geographic, physical, institutional, technical, and stakeholder 
considerations. Watershed planning addresses identified water resources 
problems and opportunities from any source, regardless of agency 
responsibilities, and provides a shared vision of a desired end state 
that may include recommendations for potential involvement by the 
Corps, other federal agencies, or non-federal interests. Generally, 
Corps watershed studies do not result in a water resources investment 
recommendation. Instead, they highlight more strategic actions, some of 
which may not be a Corps of Engineers responsibility. The three main 
Civil Works missions of the Corps are: commercial navigation, flood and 
storm damage reduction, and aquatic ecosystem restoration. The Army 
solicits comment on whether Corps watershed studies should be excluded 
from the PR&G.
    234.5 Level of analysis. This section of the proposed rule 
describes and defines the next step in the PR&G process under the 
Corps' proposed ASPs. Once a decision is made that the PR&G applies 
under 234.4, the next step is to determine what level of analysis 
should be applied.
    Section 234.5(a) Standard and scaled level of analysis. There are 
two levels of analysis under the PR&G that are proposed to be applied 
based on the scope and magnitude of the proposed projects, programs, or 
plans; and the significance of the Federal investment in terms of 
dollar value and potential environmental impacts. The different levels 
of analysis allow for investment decisions to be made effectively and 
efficiently. Just as not all investment decisions must trigger the 
application of the PR&G, not all investment decisions that do trigger 
the PR&G must require in-depth, extensive analysis. Many small, routine 
activities would be excluded from the PR&G analysis under the proposed 
rule (refer to 234.4(d)(2)) such as small-scale Tribal Partnership 
Program projects or routine investments in invasive species removal, 
while activities that are somewhat broader in scope but pose minimal 
risks are proposed to be subject to a scaled PR&G analysis, and those 
activities with larger potential impacts would be subject to a standard 
analysis. A scaled PR&G analysis would generally include fewer 
alternatives with a more streamlined formulation process and 
justification procedures than a standard analysis, while still adhering 
to the PR&G and resulting in a systematic decision. A scaled analysis 
reflects the scope and complexity of the problem being assessed. The 
proposed ASPs include Table 1, which provides the monetary threshold 
criteria for a general guideline to be used for identifying the types 
of projects, programs, or plans and their corresponding levels of 
analysis. The Army solicits comment on whether the proposed rule 
language regarding benefits/cost analysis in this section is adequate 
or whether additional content or examples is needed in the rule text.
    Various types of acceptable economic analyses and benefit 
categories may be applied,\11\ such as transportation rate savings, 
damages reduced, next least costly alternatives, commercial fishing, 
recreation benefits, etc. In addition, there are measurement standards 
by which such analysis may adhere, such as net changes to the ecosystem 
goods and services provisioned by the environment. The Corps would use 
best professional judgement in determining what is relevant to 
consider. Early engagement can also assist the Corps in providing 
considerations to inform selection of methodologies and benefit 
categories.
---------------------------------------------------------------------------

    \11\ See Circulars A-4 and A-94 for more information.
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    For scaled analysis, the rule proposes that methods reliant on 
secondary data sources may more frequently be used (e.g., benefit 
function transfer methods, expert opinion, proxy valuations, windshield 
analysis). Those same tools may also be used in the application of the 
standard level of analysis when appropriate. The Army would also use 
various modeling techniques for the cost-benefit analysis when 
appropriate. The Army solicits comments on the types of analyses that 
may best be used to evaluate the full range of public benefits under 
both standard and scaled level of analyses.
    Section 234.5(b) Determining the appropriate level of analysis. 
This paragraph of the proposed rule describes the process for 
determining the appropriate level of analysis for the PR&G. In addition 
to the considerations and descriptions provided in 234.5(a) for the 
scaled and standard analysis, as well as the criteria provided in the 
proposed Table 1 to be used as a general guide, the proposed ASPs note 
that professional judgment and available resources are also important 
factors in determining the appropriate levels of analysis. In some 
scenarios where a potential investment may meet the threshold criteria 
in the proposed Table 1 for a scaled analysis, based on considerations 
such as environmental or Tribal trust responsibilities or uncertainty 
in the information to be used in a decision, it may be best to conduct 
a standard analysis. And a similar scenario could occur in the reverse 
circumstances, such as where a potential investment meets the threshold 
criteria for a standard analysis but due to the routine nature or lack 
of complexity a scaled analysis may be more appropriate. This is not 
envisioned to be a common scenario. Even if a potential investment may 
otherwise meet the criteria to be excluded from the PR&G under the 
proposed Table 1, there may be circumstances that would nonetheless 
trigger analysis under the PR&G. Some areas to consider when making 
deviations from the criteria thresholds listed in the proposed Table 1 
include: magnitude and significance of specific problems and 
opportunities the investment seeks to address; significance of natural 
resources within the study area; significance of the environmental 
justice concerns; magnitude and significance of expected impacts of the 
investment; expected investment scale and/or costs; complexity or 
significance in science, engineering, or resource management; projected 
service or operational life of the project or facility; stakeholder 
concerns; authority under which the investment decision/recommendation 
is made; uncertainty in decision variables and resulting risk exposure; 
degree of performance or irreversibility of

[[Page 12076]]

potential investment decision; nature and extent of Tribal trust 
responsibilities in the study area; or, cumulative effects of, or 
controversy associated with, any of the above. Additional areas to 
consider include, when impacts may vary across alternatives such that 
analysis can help identify the best alternative, and when analysis will 
help the public and decisionmakers understand the effects of the 
project. Army solicits comments on additional considerations to be 
applied when making a determination as to the appropriate level of 
analysis under the PR&G, and whether additional clarity is needed on 
how such determinations may be made.
    Section 234.5(c) Scope and magnitude of analysis required. The 
threshold criteria provided in the proposed Table 1 are guidelines to 
establish an appropriate scope and magnitude for the analysis based on 
the Federal cost (excluding the non-Federal share) of a proposed 
activity, measured in terms of the present value of the Federal 
investment. The present value is the current dollar value, after 
discounting. The proposed Table 1 was taken straight from the 
Interagency Guidelines. The monetary thresholds were designed to be 
relevant to all the agencies implementing the PR&G to provide a common 
framework and baseline. The Army solicits comment on whether the values 
provided in Table 1 are the appropriate thresholds to apply for the 
Corps' ASPs, and also whether the amounts should be adjusted for 
inflation from the original amounts provided, which were developed in 
2014. If inflation adjustments are appropriate, the Corps further 
solicits what data should be used to make those adjustments going 
forward, e.g., GDP deflator, CPI, or something else. The Army also 
solicits comments on whether the Corps should account for the non-
Federal share of the costs in setting these thresholds, in order to 
reflect the cost to society (Federal plus non-Federal) of the proposed 
investment. In that case, the thresholds would be somewhat higher.
    The Interagency Guidelines state that the PR&G specifically applies 
to operational modifications, modernization of existing facilities, dam 
safety modifications, culvert replacements, water conveyance, and fish 
ladder modifications. The analysis of significant O&M investments of 
this kind would be subject to the thresholds provided in proposed Table 
1.
    Operation and maintenance activities resulting in consequential 
effects on water quantity or quality that have not been previously 
analyzed should be appropriately analyzed using either the project- or 
programmatic-level processes laid out in the proposed rule. More 
significant operational changes, such as adding a new project purpose 
or significantly modifying project outputs, warrant analysis under the 
PR&G. However, routine O&M activities are proposed to be excluded (see 
234.4(d)).
    To apply proposed Table 1 to an investment under consideration, the 
Corps would first determine whether the action is a project, program, 
or plan, then identify the appropriate relevant level of Federal 
investment under consideration. The Federal investment includes all 
capital and labor costs associated with the potential investment. Once 
those two steps have been made, the Corps can determine the recommended 
appropriate level of analysis for the Federal investment. However, in 
applying the proposed threshold criteria, the considerations and 
judgement described in 234.5(b) should be applied to determine whether 
a deviation from the criteria is appropriate. A scoping effort can be 
helpful in providing information needed to determine whether a 
deviation may be warranted.
    This paragraph also describes how to apply the threshold criteria 
for project, programmatic, and individual plan levels. A project-level 
analysis should be applied to water resources investments when the 
Corps has discretion in investment decisions for the planning process 
on a particular project. Project-level analyses typically require more 
detail and focus on a narrower scope and/or scale. This would include 
all of the relevant existing and proposed Federal, state, and local 
investments in infrastructure or ecosystem restoration, including any 
planned modifications or replacements to existing facilities, and their 
operation and maintenance. Programmatic-level analyses require the 
detail necessary to ensure decision-makers have sufficient information 
to make an informed decision, but it may be conducted differently than 
project-level analyses. For example, the scale and/or scope will likely 
be greater with a similarly broader level of detail. Programmatic-level 
analysis can apply when the Corps proposes a set of similar actions 
analyzed under one decision document. The Corps would apply the 
broadest and most rigorous analysis (e.g., standard analysis for a 
programmatic-level analysis) wherever appropriate. The Corps would not 
split an action that is more appropriate under programmatic review into 
smaller project-level actions simply to avoid any perceived analytical 
burdens. Such actions may include those that have cumulative effects on 
water resources. If an individual project within this broader program 
is noteworthy or raises particular concerns, the Corps may decide to 
evaluate that specific project individually under the PR&G. Care would 
be taken to ensure that evaluating individual projects does not lead to 
underestimation or exclusion of cumulative effects. The Army solicits 
comment on whether more clarity is needed for which types of projects 
would fall under the project vs. program vs. plan criteria. The 
Interagency Guidelines state that if the Corps develops a revised 
proposed Table 1 specific to the Corps, the following considerations 
should be taken into account: (1) thresholds relevant to the specific 
activities of the Corps; and (2) criteria relevant to the Corps for 
determining the level of analysis. The Army solicits comment on whether 
either of those considerations warrant a revision to proposed Table 1 
for the Corps' ASPs.
    Section 234.6 The Planning Process.
    Section 234.6(a) Introduction. This proposed paragraph describes 
how the planning process will incorporate the Guiding Principles from 
the PR&G in the analysis and development of Corps Federal investments 
in solving water resources problems. The section describes the planning 
process as orderly, systematic, and iterative, and establishes the 
desired outcome as investment advice in the form of a plan or plans 
that seek to maximize net public benefits. Investment advice supports 
the decision-making process. It provides analysis and a potential 
solution for the subject water resources problem and the Chief of 
Engineers uses such investment advice to make a recommendation to the 
Congress for consideration in the authorization process. Ultimately, 
the Congress decides whether or not to authorize a particular 
recommendation and how to consider such investment advice. The plan 
recommendation includes investment advice and shapes the federal role 
in a given planning situation. As in most Corps documents, Records 
Management and Freedom of Information Act (FOIA) requirements should be 
considered throughout the development of PR&G analysis documents, with 
the inclusion of an index to facilitate the collection of records for 
any future FOIA requests.
    Section 234.6(b) NEPA. This proposed paragraph encourages the Corps 
to integrate the NEPA and the PR&G processes as much as possible to 
produce a single analytic document to meet both requirements. This 
concept is

[[Page 12077]]

discussed in the Interagency Guidelines and is currently common 
practice for the Corps' planning processes. Through the integration, to 
the extent possible, a reduction in duplication is anticipated 
especially when the same information is being relied on when performing 
the PR&G and NEPA analyses. A single analytic document also could help 
to achieve reduced workload as well as consistency across alternatives 
analyzed and other components that are covered in both the PR&G and 
NEPA analyses. However, there may be instances when analyses under the 
PR&G results in a modification to the NEPA analysis, such as when an 
alternative under consideration is eliminated from further review 
because it conflicts with the Federal objective or a Guiding Principle. 
In this case, the Corps should include in the NEPA documentation why 
such alternative is not being carried forward in the review process. 
The formulation criteria are not appropriate screening criteria under 
NEPA. The Corps would include in the analysis an alternative that meets 
the purpose and need under NEPA and is feasible and reasonable. In all 
cases, the Corps would comply with NEPA while implementing the PR&G. 
Compliance under NEPA and this proposed rule, if finalized, does not 
eliminate the Corps' obligations under other statutory requirements 
(e.g., Endangered Species Act compliance) or fulfillment of Tribal 
trust responsibilities. For example, Corps proposed projects involving 
the discharge of dredged or fill material into waters of the United 
States would be developed in accordance with the guidelines promulgated 
by the Administrator of the Environmental Protection Agency (EPA) in 
conjunction with the Secretary of the Army under the authority of 
Section 404(b)(1) of the Clean Water Act (CWA) of 1972, unless these 
activities are exempted by Section 404(f) (40 CFR 230.1(a)). The Corps 
should seek to maximize integration and reduce redundancy or 
duplication with other federal law requirements and compliance with 
statutory provisions.
    Section 234.6(c) Guiding Principles. This section describes the 
Guiding Principles for the planning process that the P&R identifies, 
which are: environmental justice, floodplains, healthy and resilient 
ecosystems, public safety, sustainable economic development, and a 
watershed approach. The Guiding Principles are intended to be used as 
overarching concepts to promote through water resources investments. 
They are described below and in the proposed rule in alphabetical 
order.
    Section 234.6(c)(1) Environmental justice. A focus of the PR&G and 
these ASPs is environmental justice and meeting the needs of Tribal 
Nations and communities with environmental justice concerns to achieve 
environmental justice for all populations. The ASPs provide a 
description of environmental justice consistent with other agency 
definitions and with existing Corps policy \12\ on environmental 
justice. The proposed paragraph directs that environmental justice 
considerations shall be incorporated into all phases of the planning 
process and decision-making for Corps Civil Works programs. The 
proposed ASPs require that the planning process go beyond ``do no 
harm'' to also ensure meaningful engagement with Tribal Nations and 
other communities with environmental justice concerns as well as to 
increase community access to benefits provided by Civil Works programs. 
Working within congressional study authorizations provided to the 
Corps, the ASPs' guiding principle of environmental justice drives 
inclusion of restorative justice for communities with environmental 
justice concerns. Environmental justice efforts seek to find access for 
all to long-term, sustainable solutions. The ASPs require that burdens 
on Tribal Nations and communities with environmental justice concerns 
\13\ that are not avoidable are to be mitigated.
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    \12\ https://www.army.mil/article/254935/assistant_secretary_of_the_army_for_civil_works_issues_environmental_justice_guidance_to_the_army_corps_of_engineers, last accessed on 
January 31, 2024.
    \13\ To identify communities with environmental justice 
concerns, the Corps would use a suite of tools and sources of 
information, such as the Council on Environmental Quality's Climate 
and Economic Justice Screening Tool (CEJST), the EPA's EJScreen 
Tool, Indigenous Knowledge, state or local data or tools, and 
community- or resident-driven information. The CEJST ((https://screeningtool.geoplatform.gov/), last accessed on September 21, 
2023, identifies disadvantaged communities that have been 
marginalized by underinvestment and overburdened by pollution and 
was developed for agencies to use for the Justice40 Initiative and 
other resource allocation purposes. There may be some communities 
that are not considered disadvantaged by the CEJST because they do 
not meet the low-income threshold, but that face many environmental 
burdens and could be considered to have environmental justice 
concerns. The Corps would also evaluate any other relevant tools, 
including locally relevant data and any information received in 
public comment from any local communities with environmental justice 
concerns on unavoidable impacts and potential mitigation.
---------------------------------------------------------------------------

    By removing the potential barriers to community participation in 
the planning process and the potential barriers to receiving the 
benefits of Federal investments, the Corps, in its implementation of 
the PR&G, will strive to provide equal access to the Corps' services 
and programs and to ensure fairness in decision-making. As each 
community has different needs, allocation of resources for engagement 
may be different for different communities in order to reach an 
equitable outcome of participation opportunities. The Army acknowledges 
that every Tribal Nation and community with environmental justice 
concerns is unique, and may have different or preferred ways of 
engaging, different areas of concern, and different considerations for 
ways to address those concerns. For engagement, this may entail the use 
of different languages to ensure language access is achieved to support 
meaningful engagement, or various methods of providing information via 
written, oral, and virtual formats to ensure accessibility for 
individuals with disabilities, meetings held in the communities, etc.
    The Corps would ensure social (including health) environmental 
justice factors are evaluated during the planning process, to include 
consideration of such factors throughout the lifecycle of a water 
resources investment, and that consideration should be given to impacts 
that could affect Tribal Nations and communities with environmental 
justice concerns differently than other communities. For example, the 
historic disproportionate burden that a community may have faced in the 
past related to a lack of investment to reduce flood risks, or to 
exposure to toxins, should be considered in the impacts assessment in 
the planning process, similar to a cumulative impacts approach. An 
incremental change in an environmental impact may result in 
insignificant impacts to some communities, but significant impacts to 
others (e.g., a Tribal Nation or community with environmental justice 
concerns). In addition, the same could be said in the converse with 
benefits assessment. A small increase in recreational opportunities may 
have a much larger benefit to a community that has environmental 
justice concerns and also has limited access to recreational 
opportunities than it would benefit another community, which has 
environmental justice concerns but already has access to recreational 
opportunities. Potential issues that may be evaluated during the 
planning process for positive or negative impacts on a community with 
environmental justice concerns also may include, but are not limited 
to: exposure to climate-related risks and opportunities for climate 
resilience, factors that subject a community to poorer health or

[[Page 12078]]

environmental conditions, subsistence hunting and gathering, Tribal 
resources of cultural and religious significance, cultural resources, 
access to greenspace or other natural areas, community values, factors 
that contribute to poorer physical or mental health conditions, income 
level, education level, and crime. Indigenous Knowledge is also a 
critical component and source for the evaluation process related to 
environmental justice concerns. Such an evaluation process would help 
the Corps assess risk, including perceived risk, and economic measures 
by using scientific factors and Indigenous Knowledge in risk 
assessments to characterize the nature and magnitude of human health 
and ecological risk from contaminants and other stressors that may be 
present.
    In analyzing each alternative's potential environmental justice 
impacts, agencies can also use these tools to ensure a holistic view of 
the potential broader social effects. Environmental justice should be 
accounted for in all areas being assessed under the PR&G, the economic, 
environmental, and social, rather than solely as a social 
consideration. Every application of the PR&G would contain case-
specific environmental justice strategies and considerations. The goal 
under this Guiding Principle of the PR&G, therefore, is to ensure that 
the Corps works to reduce barriers to equal opportunity in engagement 
and participation in the planning process for Corps water resources 
development projects to produce more sustainable and resilient 
solutions that will help these communities, particularly those that are 
among the most vulnerable, to reach their fullest potential. A key 
component of this is to listen to the communities and ensure that they 
are engaged throughout the planning process. The communities themselves 
will likely help identify concerns and solutions to their water 
resources problems and opportunities as well as participate in the 
identification of any potential effects, mitigation measures, and 
benefits, including through sharing Indigenous Knowledge, as they deem 
appropriate.
    In implementing the proposed ASPs, the Corps would ensure that it 
considers the opportunities to overcome past inequities, and identifies 
any disproportionate and adverse public safety, human health, or 
environmental burdens of proposed water resources investments on 
communities with environmental justice concerns, including cumulative 
impacts for already overburdened communities. This is consistent with 
Executive Order 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All (88 FR 25251). The Corps would use all 
available means to gather such information, including Indigenous 
Knowledge and information received directly from communities. The Corps 
would seek to identify solutions that would eliminate or avoid those 
disproportionate adverse effects. Each alternative analyzed would be 
transparent in the discussion of the effects as well as benefits to 
Tribal Nations and other communities with environmental justice 
concerns, where applicable.
    The Corps would use available tools and resources to identify and 
describe communities with environmental justice concerns. This may 
include a suite of tools and sources of information, such as the 
Council on Environmental Quality's Climate and Economic Justice 
Screening Tool,\14\ the EPA's EJScreen Tool,\15\ Indigenous 
Knowledge,\16\ state or local data or tools, and community- or 
resident-driven information. The Army solicits comment in particular on 
how the navigation program can use tools and resources to directly 
assess and, as appropriate, demonstrate project benefits for 
disadvantaged communities, and other nearby communities.
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    \14\ https://screeningtool.geoplatform.gov/, last accessed on 
January 31, 2024. Federal agencies use the CEJST to help identify 
disadvantaged communities that will benefit from programs included 
in the Justice40 Initiative and other statutory programs that direct 
resources to disadvantaged communities.
    \15\ https://www.epa.gov/ejscreen, last accessed on January 31, 
2024.
    \16\ See OSTP-CEQ-IK-Guidance.pdf (whitehouse.gov) for 
additional information, last accessed on January 31, 2024.
---------------------------------------------------------------------------

    Section 234.6(c)(2) Floodplains. The proposed ASPs highlight the 
importance of floodplains and adopt the language of WRDA 2007 to avoid 
the unwise use of floodplains, and to minimize impacts to floodplains 
if those areas cannot be avoided. Floodplains are critical aspects of 
watersheds and connect land and water ecosystems while supporting high 
levels of biodiversity and productivity. Floodplains with unaltered 
natural and beneficial functions can increase the resilience of 
communities. There is no specific floodplain return interval identified 
for use in the PR&G and as such the floodplain should be considered on 
a case-by-case basis, as appropriate to evaluate the particular water 
resources problem or opportunity in that community and to identify the 
full range of reasonable alternatives.
    As part of the Corps' implementation of this Guiding Principle, the 
Corps will continue to implement the Federal Flood Risk Management 
Standard (FFRMS), where appropriate, which is a flexible framework to 
increase reliance against flooding and help preserve the natural values 
of floodplains as provided in Executive Order (E.O.) 13690 (80 FR 
6425).\17\ Executive Order 14030 (86 FR 27967), Climate-Related 
Financial Risk, reinstated the FFRMS as well as clarified that the 
guidelines for floodplain management under E.O. 13690 (80 FR 6425), 
Establishing a Federal Flood Risk Management Standard and a Process for 
Further Soliciting and Considering Stakeholder Input, remain in effect. 
The FFRMS provides four potential methods for delineating flood hazard 
areas, with the preferred method being the Climate-Informed Science 
Approach (CISA).\18\ The proposed ASPs recognize and incorporate the 
requirements of E.O. 13690 and FFRMS. The Corps water resources 
investments may include facilities that must be located in the 
floodplain to provide a desired function (e.g., levees). The Corps 
would implement CISA methods for all Civil Works studies via online 
tools and technical guidance. As provided in the IG, the Corps would 
continue to incorporate considerations such as sea-level rise and rely 
on the best available actionable science on both current and future 
risk when planning proposed water resources investments.
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    \17\ E.O. 13690 was revoked by E.O. 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects (82 FR 40463), but 
was later reinstated by E.O. 14030, Climate-Related Financial Risk 
(86 FR 27967).
    \18\ The Guidelines for Implementing Executive Order 11988, 
Floodplain Management, and Executive Order 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input (2015) identify CISA as 
the preferred FFRMS approach when climate science and future 
conditions data are available and actionable. Where data are not 
available or actionable for CISA, the FVA and 0.2PFA are acceptable 
approaches.
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    The CISA, as implemented by the Corps, considers two broad 
categories of climate change impacts on flood hazards: inland and 
coastal. Some projects located in the estuarine transition zone between 
inland and coastal water bodies may be required to consider both kinds 
of impacts. In the coastal zone, the Corps primarily considers the 
effects of relative sea level change, which can have a significant 
impact on the flood hazard. Internal Corps guidance (Engineer 
Regulation 1100-2-8162) \19\ requires Corps project delivery teams to 
consider the effects of sea level change when formulating,

[[Page 12079]]

selecting, and evaluating project alternatives. In addition, another 
internal guidance document (Engineer Pamphlet 1100-2-1) \20\ provides 
technical information for how this consideration should be achieved, 
with techniques specified for each Corps Civil Works program area.
---------------------------------------------------------------------------

    \19\ https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/ER_1100-2-8162.pdf Incorporating Sea Level Change in 
Civil Works Programs, last accessed January 31, 2024.
    \20\ https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP-1100-2-1.pdf, Procedures to Evaluate Sea Level 
Change: Impacts, Responses, and Adaptation, last accessed January 
31, 2024.
---------------------------------------------------------------------------

    Consideration of relative sea level change is made more accurate, 
timely, efficient, and reproducible through the use of web-based tools. 
The Sea Level Curve Calculator allows the user to plot and tabulate the 
three sea level scenarios for any NOAA National Water Level Observation 
Network (NWLON \21\) tide gage with sufficient period of record, along 
with coastal extreme water levels, other federal and local scenarios, 
tidal and geodetic datums, and water elevations critical to project 
performance. The Sea Level Tracker also allows plotting and tabulation 
of these three scenarios (see footnote 16, and consistent with the 
three scenarios proposed by the National Research Council as updated by 
the National Oceanic and Atmospheric Administration,\22\) alongside 
linear trendlines and computed water levels of various frequencies and 
averaging periods, based on observations. The Corps has also produced a 
static atlas of observed sea level change for offline viewing, and a 
specific calculator for the high-subsidence environment of coastal 
Louisiana. More information on these tools may be found at the Corps' 
public tools web page.\23\ The Corps would use the social cost of 
greenhouse gases where appropriate throughout implementation of the 
ASPs (88 FR 1196).
---------------------------------------------------------------------------

    \21\ https://tidesandcurrents.noaa.gov/nwlon.html, last accessed 
January 31, 2024.
    \22\ https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html, last accessed January 31, 2024.
    \23\ https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/sea_level_change/, last accessed January 
31, 2024.
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    The effects of climate change on pluvial, riverine, and lake flood 
risk is more complex and uncertain than the effects of sea level 
change. For inland hydrologic analyses, Corps teams implement the CISA 
using internal agency guidelines.\24\ Teams follow four basic steps to 
characterize potential project vulnerabilities to the effects of 
climate change on inland hydroclimatology: a review of available 
scientific literature; statistical detection of trends and changes in 
observed data; examination of projected future hydroclimatology based 
on climate modeling; and assessment of business-line specific 
indicators of project performance risks, which are related to the 
primary purpose or purposes of the proposed project.\25\
---------------------------------------------------------------------------

    \24\ https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14, Guidance for Incorporating Climate 
Change Impacts to Inland Hydrology in Civil Works Studies, Designs, 
and Projects, last accessed January 31, 2024.
    \25\ https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/, last accessed 
January 31, 2024.
---------------------------------------------------------------------------

    To aid teams in performing these analyses, the Corps has produced a 
suite of resources, several of which are publicly available. A series 
of 21 summaries of scientific literature, organized by two-digit 
hydrologic unit code (HUC), simplifies the review of scientific 
articles relevant to project locations. The Time Series Toolbox \26\ 
and Nonstationarity Detector \27\ are two tools to perform statistical 
tests for changes in observed data and identify the timing and nature 
of those changes. The Timeseries Toolbox also performs time series 
modeling, breakpoint analysis, seasonal decomposition, and statistical 
summaries of user-provided data.
---------------------------------------------------------------------------

    \26\ https://climate.sec.usace.army.mil/tst_app/, last accessed 
January 31, 2024.
    \27\ https://climate.sec.usace.army.mil/tst_app/, last accessed 
January 31, 2024.
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    The Climate Hydrology Assessment Tool (CHAT \28\) presents 
projected temperature, precipitation, and streamflow for 64 
combinations of climate model and greenhouse gas emissions scenario, at 
the scale of the HUC-8 watershed. These projections are combined with 
business-line specific indicators of project vulnerability in the Civil 
Works Vulnerability Assessment Tool, which is not publicly accessible 
outside the Corps. This tool reveals the dominant sources of climate 
vulnerability and regions of particularly high or low vulnerability to 
various climate change effects, to inform evaluations of potential 
project impacts and corresponding adaptation options. More information 
on Corps tools for analysis of climate change effects on inland 
hydroclimatology is available through the Corps web page.\29\
---------------------------------------------------------------------------

    \28\ https://climate.sec.usace.army.mil/chat/, last accessed 
January 31, 2024.
    \29\ https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/Climate-Impacted_Hydrology/.
---------------------------------------------------------------------------

    In addition to guidance on Climate Preparedness and Resilience, the 
Corps has also produced guidance for implementation of resilience 
principles across the agency. The internal agency guidance on 
resilience (Engineer Pamphlet 1100-1-2 \30\ and 1100-1-5,\31\ and 
Engineering and Construction Bulletin 2020-6) \32\ detail how Corps 
teams incorporate resilience principles into planning, design, and 
construction. While not related to hazard area delineation under the 
FFRMS, these documents can help inform lasting responses to those 
hazards. The Corps reviews and updates the tools and guidance on an 
ongoing basis, when necessary.
---------------------------------------------------------------------------

    \30\ https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_1100-1-2.pdf, U.S. Army Corps of 
Engineers Resilience Initiative Roadmap, last accessed January 31, 
2024.
    \31\ https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP%201100-1-5.pdf, U.S. Army Corps of Engineers Guide to 
Resilience Practices, last accessed January 31, 2024.
    \32\ https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2020-6, Implementation of Resilience 
Principles in the Engineering and Construction Community of 
Practice, last accessed January 31, 2024.
---------------------------------------------------------------------------

    The Corps implements four principles related to resilience: 
prepare, absorb, recover, and adapt. These principles provide a 
lifecycle perspective for resilience-related actions in recognition of 
the fact that adverse events happen and conditions change over time. 
This includes the ability to anticipate, prepare for, and adapt to 
changing conditions and withstand, respond to, and recover rapidly from 
disruptions. The Corps contributes at three levels of applied 
resilience: (1) project, (2) system, and (3) community. These three 
levels of resilience are interdependent, and actions taken at any level 
will ultimately affect the others.
    The proposed paragraph in the proposed rule on the Guiding 
Principle for floodplains notes that Corps action may be located in 
floodplains where that is the best way to address the water resources 
problem or opportunity, such as a levee system that helps to reduce a 
flood risk. Such placement does not automatically trigger the labeling 
of a particular flood risk management measure as an ``unwise use of 
floodplains.'' The proposed ASPs also require a fully nature-based 
alternative to be included in the final array of alternatives, when 
appropriate, which also ensures full visibility of alternative 
approaches regarding the use of floodplains to meet the Guiding 
Principle as well as the principles of EOs 13690 (80 FR 6425) and 11988 
(42 FR 26951), as amended.\33\ Where a fully

[[Page 12080]]

nature-based solution is not feasible or would not be fully effective, 
the proposal encourages the Corps to include nature-based solutions in 
other alternatives in the final array, where appropriate, as such 
solutions are required by law to be considered by the Corps in its 
water resource development project planning process.
---------------------------------------------------------------------------

    \33\ E.O. 11988, Floodplain Management, was amended by E.O. 
13690, Establishing a Federal Flood Risk Management Standard and a 
Process for Further Soliciting and Considering Stakeholder Input.
---------------------------------------------------------------------------

    The P&R provides that Federal actions should seek to reduce the 
Nation's vulnerability to floods and storms. However, that may 
necessitate water resources development projects located in the 
floodplain. The Corps would strive to sustain the floodplains' natural 
and beneficial functions to the maximum extent practicable given the 
project's purpose and need.
    The proposed rule provides that the Corps would avoid unwise uses 
of the floodplain where possible. This includes uses that would 
significantly increase or shift flood risks to other populated areas, 
or otherwise would result in adverse net impacts to human health, 
safety, welfare, property, natural resources, or the natural and 
beneficial functions of floodplains. Under this Guiding Principle, the 
Corps would comply with E.O. 11988 (42 FR 26951), E.O. 13690 (80 FR 
6425), and E.O. 14030 (86 FR 27967), and would implement FFRMS through 
CISA. This will ensure that there is no significant increase or 
transfer of flood risk to other populated areas, considering a systems 
approach that includes integrated water resource management. It also 
will ensure that the proposed water resources investment would not have 
a disproportionate effect on communities with environmental justice 
concerns or vulnerable populations, considering the relevant current, 
future, and potential economic, environmental, and social risks, costs, 
impacts, and benefits. Where this is not feasible, the Corps would 
identify and communicate the potential adverse effects on floodplain 
functions.
    Section 234.6(c)(3) Healthy and resilient ecosystems. The proposed 
ASPs reinforce WRDA 2007's direction to protect and restore ecosystem 
functions and to minimize and mitigate those impacts if they cannot be 
avoided. Ecosystems are dynamic complexes of plant, animal, 
microorganism, and other living communities and the non-living 
environment interacting as a system. Ecosystems provide important 
services to humans both directly and indirectly, and they also 
encompass vital intrinsic natural values.
    In order to implement this proposed Guiding Principle in the Corps' 
ASPs, the Corps would develop alternatives that first seek to improve 
environmental conditions, then avoid any adverse environmental impact. 
If there are any remaining adverse impacts that are unavoidable, the 
alternatives would seek to minimize those adverse environmental 
impacts. When impacts are unavoidable, compensatory mitigation for 
adverse effects would be required as mandated by laws and regulations, 
such as under the Clean Water Act. This is generally known as 
mitigation sequencing and is described in regulations such as under the 
Clean Water Act section 404(b)(1) guidelines (40 CFR 230).
    The Corps would seek to enhance the health and resilience of the 
natural environment in alternative plans, where feasible and 
appropriate. When formulating a project primarily for a purpose other 
than aquatic ecosystem restoration, the Corps should consider 
alternatives that would better protect or help to restore the natural 
ecosystem. A resilient ecosystem may provide the most cost-effective 
option for achieving a project purpose, and has the capacity to respond 
to changes, including climate change. Resilient ecosystems can enhance 
services provided by the natural environment as well as contribute to 
the economic vitality of the Nation. For example, the Corps can 
incorporate nature-based solutions, such as restored vegetated beach 
dunes or oyster reefs, into a coastal storm risk management water 
resources development project. Such incorporation of nature-based 
solutions is encouraged under the reinstated E.O. 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input (80 FR 6425), where 
possible.
    Ecosystem health is a measure of the performance of complex and 
interrelated systems. Ecological processes function normally, within 
the range of natural variability, in a healthy ecosystem. Ecosystem 
health is often expressed in terms of ecosystem functions, as reflected 
in the third part of the Federal objective in the P&R. Functions can be 
particularly hard to measure, whereas the services such functions 
provide can be more readily measured. A healthy ecosystem also includes 
organization, structure (e.g., biodiversity), and resilience. There are 
assessment methods to measure indicators of ecosystem functions (e.g., 
hydrogeomorphic approaches, California Rapid Assessment Method,\34\ 
etc.) The use of ecosystem services as a proxy for ecosystem function 
tends to put a more anthropocentric focus on measuring ecosystem health 
versus a more habitat-based focus. This can be particularly challenging 
when applied to the Corps' aquatic ecosystem restoration mission, which 
does not seek to maximize ecosystem services that may be more easily 
monetized (e.g., hunting, fishing, or timber sales) but rather focuses 
on improvements to the functions of the aquatic resources that will 
benefit the overall aquatic ecosystem. The Army solicits comment on 
whether there are alternative forms to measure ecosystem health such as 
specific assessment methods, in particular for the Corps' aquatic 
ecosystem restoration mission.
---------------------------------------------------------------------------

    \34\ www.cramwetlands.org, last accessed on January 31, 2024.
---------------------------------------------------------------------------

    Ecosystems are resilient when they are able to respond to and 
maintain their structure and function under external stress, including 
climate change and invasive species. Measures of ecosystem resilience 
often address its two basic components: (1) the magnitude of stress an 
ecosystem can absorb before fundamentally and irrevocably changing; and 
(2) the amount of time required before an ecosystem returns to its pre-
stressed condition or to another stable condition that functions in 
ways comparable to its original state. Some simple measures of 
ecosystem resilience include floodwater storage capacity and population 
recovery time for an appropriate, scientifically sound surrogate for 
designated species.
    However, systems-level models are needed to accurately describe the 
interactions of ecosystem components under stress and predict their 
response. No standard methods or models for measuring ecosystem 
resilience currently exist. Research on ecosystem resilience is rapidly 
changing how it is described and measured. Best available tools and 
methods would be used when evaluating ecosystem resilience of 
alternatives. The Army solicits comment on particular models, tools, 
methodology or other information that may be helpful in assessing 
ecosystem resilience, such as the use of keystone species to provide 
insight on resilience under changing conditions.
    When evaluating water resources investment alternatives, the health 
of the affected ecosystem should be measured in its current condition 
(baseline) and projected under each of the alternatives being 
considered. Where feasible and appropriate, alternatives also should be 
developed that would help to restore the health of a damaged ecosystem 
to a less degraded and more natural condition, where required by law 
(NEPA, ESA, etc.) or where the non-federal interest or others

[[Page 12081]]

agree to provide the non-federal share of the cost of this analysis.
    Section 234.6(c)(4) Public safety. The proposed ASPs explicitly 
call for alternatives to avoid, reduce and mitigate significant risks 
to public safety. Where appropriate, the Corps will incorporate 
measures to reduce the risk of loss of human life in the formulation of 
alternatives to address flood and coastal storm risks.\35\ The Corps 
would use available and appropriate tools and methodologies to evaluate 
the available options to reduce this risk. Although some other agencies 
use monetized life loss in various decision-making contexts, the 
proposed ASPs do not require monetization. The Army solicits comment on 
this issue.
---------------------------------------------------------------------------

    \35\ See, e.g., Planning Bulletin on Incorporating Life Safety 
into Flood and Coastal Storm Risk Management Studies, PB 2019-04, 
https://planning.erdc.dren.mil/toolbox/library/PB/PB2019-04.pdf, 
last accessed on January 31, 2024.
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    The proposed ASPs require the assessment of potential threats to 
people, including both loss of life and injury, from natural events in 
the determination of existing and future conditions as well as the 
decision-making process. Public safety threats are those resulting from 
environmentally-related events. The Corps would incorporate reasonable 
and appropriate public safety practices in its proposed water resources 
investments. In formulating and evaluating the alternatives, the Corps 
would use appropriate risk-based analysis techniques, including 
quantitative methods where practicable, to identify, address, and avoid 
any additional risk to public safety that a proposed water resources 
investment might otherwise present.
    The Corps would also include measures to manage and communicate the 
residual risks. The Corps would describe how the alternatives may 
affect the residual risks, as well as the reliability and durability of 
those estimates, and would share such evaluations with the public for 
transparency as well as to inform the investment decision.
    In this manner, decision-making would be improved by developing 
risk-reduction alternatives or recommending alternative courses of 
action to address potential safety issues, improving the capability to 
plan, prioritize, and implement risk-reduction actions, and identifying 
and communicating residual risk. In line with the PR&G, risk analysis 
to address public safety issues, including public health issues, would 
include relevant external factors, site-specific considerations, and 
quantified and non-quantified approaches to evaluate risks to public 
safety.
    The Corps, other Federal agencies, Tribes, state and local 
governments, non-Federal interest, and the affected public have a 
shared responsibility in flood risk management, including reducing the 
associated public safety risks. In implementing the ASPs, the Corps 
would work with each of these parties to help them understand their 
respective roles and responsibilities. The Army solicits comment on 
whether the description of public safety as proposed should be 
broadened, as public safety in general may also be threatened by acts 
of man, such as a terror attack causing a dam failure, or negligence, 
for example. The Army solicits comment on whether additional threats to 
public safety should be included for consideration beyond those related 
to natural events.
    Section 234.6(c)(5) Sustainable economic development. Federal 
investments in sustainable economic development activities contribute 
to the Nation's resilience. Sustainable is defined in the proposed rule 
at 234.2(y). As provided in the Guiding Principle under the PR&G, 
alternative solutions for resolving water resources problems should 
improve the economic well-being of the Nation for present and future 
generations through the sustainable use and management of water 
resources. The proposed ASPs describe sustainable economic development 
and call for economic, social, and environmental metrics to measure 
impacts to be incorporated into the analysis of alternatives. The 
analysis for sustainable economic development would include information 
on environmental resources and socio-economic conditions (e.g., income, 
demographics, etc.) in the affected area and how those resources and 
conditions may change over time. Physical capital, such as value or 
costs to maintain, may also be presented if relevant. The Corps would 
use this analysis, as well as the expected outcomes, as no standard set 
of metrics exist for analyzing sustainable economic development.
    As there are likely unintended effects that would be considered, 
metrics should be identified for both desired and other outcomes. 
Measures to consider in evaluating sustainable economic development 
include economic measures, social measures, and environmental measures. 
Additional measures could also be incorporated where necessary. The 
assessment would capture all of these measures. Economic measures may 
include net economic benefits and their distribution across vulnerable 
populations, income levels, unemployment considerations, labor force 
participation rates, job growth, among others where applicable. Social 
measures may include poverty rates, educational attainment, crime rate, 
disease rates, life expectancy and others, where applicable, which 
should be stratified by demographic metrics such as gender, age, race/
ethnicity, etc. Environmental measures may include measures of air 
quality, presence of priority pollutants, hazardous wastes, changes in 
land use/land cover, water quality issues (e.g., Clean Water Act 
Section 303(d) listed), species distribution patterns, endangered or 
threatened species, wildlife prevalence, diversity, changes in 
ecosystem services and their impact on wellbeing, among others where 
applicable. The economic, social, and environmental measures would be 
stratified where appropriate.
    Section 234.6(c)(6) Watershed approach. Another Guiding Principle 
from the PR&G is the use of the watershed approach in the planning 
process. Watershed is defined in the proposed rule at 234.2(yy). The 
proposed ASPs require that upstream and downstream relationships are 
considered in formulating alternatives and in evaluating benefits and 
costs.
    In some cases, a proposed Corps water resources development project 
or the alternatives may have the potential to provide benefits across 
multiple Corps program areas, such as flood risk management benefits in 
addition to aquatic ecosystem restoration benefits. In these cases, a 
study may result in a recommendation for a multi-purpose project. In a 
post-authorization study, the Corps should not use the existing project 
authorization as a screening tool to limit reasonable alternatives that 
may otherwise provide a more complete solution. The Congress can amend 
the existing project authorization based on a recommendation of the 
Corps study. Also, a Corps study can recommend a community-based 
solution that the Corps would not implement, where the solution is more 
suited to another Federal agency or to a Tribal, state, or local 
government.
    The Corps conducts each of its project studies primarily to address 
an identified, specific water resources problem or opportunity. The 
watershed approach primarily ensures that the Corps will assess how the 
proposed project and the alternatives would affect both the existing 
and a full range of the potential future uses of water in the 
watershed. However, in some cases, this kind of an analysis may also 
lead to a more complete range of holistic alternatives, which would 
achieve

[[Page 12082]]

multiple goals. A watershed approach is conducted at a systems level to 
identify root causes and how they connect to problem symptoms. A 
watershed approach also ensures that alternatives consider the effects, 
including cumulative effects, and benefits conveyed throughout the 
watershed to understand the full range of public effects. The Corps 
would also assess any effects which may occur beyond the watershed, 
where appropriate, such as existence value benefits.
    There is no particular watershed scale dictated by the PR&G for use 
in evaluation, and as such, the Corps would identify the most 
appropriate delineation to address the identified, specific water 
resources problem or opportunity. The study area would include the most 
immediate part of the watershed, which is most likely to be affected by 
the alternatives under consideration. The analysis may also need to 
include other parts of the watershed, for example, to include the 
effects on all of the people potentially affected by the ecosystem 
service changes (e.g., by identifying relevant servicesheds). Where 
appropriate, the analysis also may include areas beyond the watershed 
that are connected to it by infrastructure (e.g., that transfers or 
affects flows of water among hydrologically unconnected watersheds or 
populations). The study area would potentially include these additional 
areas, where the impacts are sufficient to warrant a broader review. 
The scope and scale of watershed assessments can vary and the 
geographic area under review should be large enough to ensure plans 
address relationships among affected resources and activities pertinent 
to realizing public benefits. The extent of evaluations across a 
watershed should also reflect the nature of the relationships.
    In addition, the Corps' assessments would evaluate the interaction 
of a potential Federal, state, local, or other known investment with 
other water resources projects and programs within a region or 
watershed. In this manner, all effects and potential benefits would be 
evaluated in an interconnected manner, as one Federal investment may 
affect another Federal or non-Federal investment. Watershed conditions 
would be assessed in the evaluation. Such information may include but 
is not limited to: current trends in aquatic habitat loss or 
conversion; cumulative impacts in the watershed; current and future 
projected water resources utilization trends; species and other natural 
resources conservation; and chronic problems such as flooding, among 
others as appropriate. This analysis would include the effects on the 
people, businesses, and environmental resources of the affected area, 
as well as relevant economic and social characteristics of this area. 
The watershed approach is not a mechanism to expand the scope of the 
proposed Federal investment, but is rather primarily a way to document 
and consider the context within which the Corps is proposing a targeted 
Federal investment.
    This type of approach may shift the Corps to think about water 
resources problems more holistically, to look at them from all sides 
and include all causes, effects and relationships, and then to identify 
who is best suited to implement the alternative (which may be another 
Federal agency, or a Tribal, state, or local government). The Army 
solicits comment on example frameworks, tools, and methods for 
implementing a watershed approach, such as whether the Basin-Scale 
Opportunity Assessment led by the Department of Energy could be adapted 
for use under the ASPs. However, the Corps would adapt to use the best 
available science for such evaluations as they are developed in the 
future.
    Section 234.6(d) Collaboration.
    Section 234.6(d)(1). This proposed paragraph outlines an increased 
focus on collaboration for the Corps to improve decision making and 
promote transparency. The Army recognizes that Tribal Nations, 
regional, state, local, and non-governmental entities, as well as 
communities and landowners are interested in the water resources 
problems that affect them, have expertise, and share in the 
responsibility of managing and protecting public water resources. The 
planning process would seek to collaborate fully with a wide range of 
affected entities and stakeholders, and the public in all stages of the 
planning process. The Corps would initiate coordination with 
appropriate Federal or state agencies administering Federal laws as 
early in the process as practicable to fully integrate environmental 
considerations into the planning process, identifying early on critical 
information and requirements needed for the planning decision, and 
maximizing opportunities to avoid and minimize impacts to the human 
environment to the extent practicable. For example, consistent and 
meaningful engagement between EPA and the Corps during early phases of 
the water resources project plan may help enable a more efficient and 
effective decision-making process, which meets all of the applicable 
environmental regulatory requirements. This proposed level of 
collaboration and engagement ensures that the Corps' planning process 
integrates various considerations from a multitude of perspectives, 
allowing for a more thoughtful and holistic consideration of potential 
alternatives, and potential effects and benefits of a proposed water 
resources investment. The proposed paragraph recognizes that such 
enhanced collaboration can assist the Corps in improving the planning 
process to better identify the problems, opportunities, constraints, 
and goals and objectives of a planning study. More locally preferred 
and locally appropriate project elements may also be identified from 
such collaboration resulting in improved benefits to such communities. 
Ensuring meaningful, regular, and robust engagement will result in more 
opportunities for communities to directly contribute to projects that 
may have positive benefits for their communities as well as contribute 
to considerations of effects and costs to those communities and ways to 
avoid, minimize or mitigate for those effects. These engagements should 
account for the desired form and type of engagement from communities, 
to ensure such engagements are culturally relevant and appropriate. 
Another key element of the enhanced collaboration is transparency, 
ensuring that all relevant Tribal Nations and interested parties are 
kept informed about the Corps process and various factors under 
consideration. The Army recognizes that enhanced collaboration and 
engagement will take time, skill, and commitment on the part of the 
Corps and project sponsors, as well as those who are engaging in the 
Corps' process. However, integration of enhanced collaboration into the 
planning process is necessary for informed and wise Federal investment 
decisions. Leveraging information and resources from others can result 
in improved efficiency and save resources.
    Collaboration can also be used to fulfill some of the Guiding 
Principles, such as a watershed approach, as working with others can 
best identify and understand problems and opportunities in a systems 
context. It is also useful to collaborate to identify other ongoing or 
planned activities in the watershed for understanding both the current 
and potential future conditions of a watershed. Environmental justice 
can also best be achieved when applying a collaborative approach to 
best understand community concerns. In addition, ecosystem services 
related to healthy and resilient ecosystems are also best understood 
using a collaborative approach.
    The proposed paragraph also makes clear that enhanced collaboration 
does

[[Page 12083]]

not obviate the need for Tribal consultation, where appropriate. In 
addition, Tribal consultation does not obviate the need for the Corps 
to ensure that enhanced collaboration with Tribal Nations occurs. 
Consultation and enhanced collaboration are not the same thing, and in 
certain circumstances Tribal engagements demonstrate a desire for and 
result in a greater understanding of the Tribal Nations needs than what 
may be achieved in consultation. Engagement beyond consultation is 
necessary to improve overall relationships and communication with 
Tribal Nations, and to identify areas for participation in and access 
to Civil Works programs.
    Section 234.6(d)(2) Although this proposed paragraph recognizes 
that tools and levels of engagement will vary based on a variety of 
factors, the section requires intentional design based on best 
practices of engagement (e.g., the spectrum of engagement from the 
International Association for Public Participation and modifications 
from various U.S. government agencies including the Corps). Whereas 
collaboration is standard in current Civil Works planning at the 
scoping stage and after a plan has been tentatively selected, this 
section explicitly urges collaboration throughout the planning process 
including during alternatives evaluation and tradeoffs. In addition, 
the Corps will ensure that it considers and incorporates the 
information that it receives from Tribal Nations and external sources 
into the problem definition, the forecast of future conditions, and the 
alternatives analysis. See the environmental justice section of the 
proposed rule and preamble for other considerations in engaging 
communities with environmental justice concerns (see 234.6(c)(1)).
    Another element of enhanced collaboration is in instances where a 
water resources problem identified in community engagement is beyond 
the Corps' traditional mission areas. In such instances, the Corps can 
collaborate with Tribal Nations, Federal, state, and local agencies, 
and non-governmental organizations or private entities, through a 
formal or public participation process such as in scoping, to identify 
alternative solutions to the problem, including solutions that may be 
outside Corps mission areas but where communities may seek further 
assistance elsewhere. The PR&G may result in alternatives that are 
outside (in whole or in part) of the Corps mission areas or its core 
capabilities, or are better suited to another Federal agency or a 
Tribal, state, or local government. The benefits of enhanced Federal 
collaboration can include the sharing of data to identify the 
alternative solutions that maximize net public benefits or the 
leveraging of resources outside of the Corps to implement these 
solutions.
    Enhanced collaboration also helps to ensure transparency, promotes 
Tribal and public participation, and assists in developing community-
driven solutions to water resources problems. In general, collaboration 
may include, but is not limited to: sharing of science and data, 
including Indigenous Knowledge; sharing of analytical tools or 
expertise; sharing of values and priorities; interdisciplinary or 
inter-agency teams; peer review processes; and post-project reviews. 
The Corps would ensure that the collaboration includes opportunities 
for engaged participants to assess the efficacy of the collaboration, 
identify areas of concern that could be redressed moving forward, note 
areas of success to continue to build on for the effort at hand, and 
discuss lessons learned to inform future efforts. It will also help 
ensure that the right problem is being identified and the study focuses 
on appropriate goals and objectives.
    Section 234.6(e) Investigations and data collection. This proposed 
section discusses that investigations and data collection should occur 
early and on a recurring basis throughout the planning process. The 
proposed section outlines areas for the study team to consider and 
relevant data to collect in investigations. It recommends that the 
Corps leverage existing information; and conduct new investigations and 
data collection, where appropriate, when existing information is not 
present.
    Section 234.6(f) Identify purpose, problems, needs, and 
opportunities. This proposed section sets out the requirements to 
identify purpose, problems, needs and opportunities. The section also 
sets expectations for early collaboration with Tribal Nations and 
stakeholders (also see 234.6(d)) to ensure that the right problem is 
being identified and the study focuses on appropriate goals and 
objectives. The Corps would begin with a clear definition of the water 
resources challenges, including a statement of the problems and/or 
opportunities to be addressed. The causes of the problems should be 
identified, as well as any constraints, and the relationship of the 
problems to the missions, statutory authorities, and other requirements 
of the Corps. Clearly defined problems, opportunities, and constraints 
are key to enable the Corps to identify a potential Federal investment 
for consideration. In general, this step corresponds to the 
identification of the project's purpose and need under the NEPA; 
however, the scoping process for a Corps study may be different than 
what is required under NEPA scoping. Typically, more background 
information is available when NEPA scoping is conducted. Corps study 
teams may not have all of the information that is identified in this 
proposed scoping section of the rule during the initial development of 
the project management plan. For example, the formulation of planning 
objectives and constraints to be used in the analysis of the Federal 
investment cannot be developed until other actions have been conducted, 
such as inventorying and forecasting, that are identified in the study 
scope. The scoping process is an iterative process. The scope would 
include actions to obtain stakeholder, partner, and public input; 
however, that input may not be available early on in the study process. 
The Corps would seek to align the study scoping for a project and NEPA 
scoping to the extent practicable. A watershed-based or systems 
approach should generally be applied when defining the scope of a water 
resources challenge. To most fully integrate the PR&G and NEPA 
processes at the earliest stages, the Corps would describe and request 
public input on the PR&G analysis in the Notice of Intent to prepare an 
EIS.
    As implementation of NEPA and the implementation of the PR&G should 
be fully integrated, the identification of problems, needs, and 
opportunities applies to both applications and can be accomplished in 
study scoping. The Corps would ensure that the planning goals and 
objectives are consistent with the authorizing legislation for the 
study. The Corps should not limit the consideration of alternatives to 
those that fall within Corps missions, if the inclusion of other 
alternatives may otherwise provide a more complete or community-based 
solution and such additional consideration is within the Corps' study 
authorization. Where possible, the Corps should strive to look 
holistically at the water resources problem. The Army solicits comment 
on how to address specific limitations on the scoping process, due to 
factors such as the scope of the study authority, cost sharing 
requirements, non-Federal interest support, and Corps mission areas and 
core capabilities. For example, other Federal, state, local, or Tribal 
programs or projects may align with the study's goals and objectives 
and the consideration of these measures within an alternative may 
produce additional, synergistic net benefits. The Army solicits comment 
on whether there may

[[Page 12084]]

be terms and conditions under which additional consideration may 
proceed that would enable the Corps to consider alternatives beyond 
those that the non-Federal interest supports.
    The Corps would also identify the purpose of the study, the role of 
the Federal government, and the various perspectives of those 
participating in the process. The purpose and scope of the study should 
be broad enough to cover the full range of reasonable alternatives, 
while avoiding an unwieldly number of alternatives. The various 
perspectives from those participating in the process can ensure a more 
robust and holistic view of the current conditions and potential 
solutions to the key water resources challenges.
    The Corps would identify the water resources problems or 
opportunities in scoping, but would not use this process to exclude 
reasonable alternatives. The Corps would use enhanced collaboration and 
the Guiding Principles in developing the scope of the study. The Corps 
would define the study area and describe stakeholder engagement 
strategies. The Corps would ensure in doing so that it employs the 
watershed approach, and considers enhanced collaboration, as well as 
the Guiding Principles, such as environmental justice. The Corps also 
may refine or reconsider the scope of the study during the study, based 
on new information or at the request of any interested party, where 
appropriate. The Corps would prepare a summary of the planning 
objectives and constraints, including a summary of input received. The 
constraints could be legal or environmental, for example. The summary 
of input received should also provide responses, where appropriate.
    The Corps would also include a discussion of the social and 
cultural aspects of the affected area and its resources, including 
Tribal resources, treaty rights, and matters related to environmental 
justice. This can help identify potential areas of concern, needs which 
should be addressed, and helps inform the current conditions as well as 
the future conditions. There may be other important areas to be 
identified in scoping that would be included, as appropriate, such as 
specific areas of consideration for the study area and water resource 
challenge under review that are not captured in this preamble.
    Section 234.6(g) Inventory Existing Resources and Forecast Future 
Conditions. To determine baselines, the Corps would identify the 
existing conditions and the baseline levels of ecosystems services and, 
to the extent practicable, identify current trends and variability in 
key environmental and economic indicators and conditions such as 
climate, population, urbanization, and land use. The current existing 
conditions provide the baseline for forecasting both the future with- 
and without-project conditions. This proposed section describes the 
need to inventory existing information and resources and to forecast 
future conditions. This step corresponds to the NEPA identification of 
the affected environment. The inventory and forecast provide a basis 
for comparison of the effects of alternative water resources 
investments on objectives. The proposed section also describes the 
without-project condition and the with-project condition including the 
need to consider climate and other likely changes in establishing 
scenarios to compare effects of alternatives. Such evaluation and 
forecasting across the alternatives would confirm the problems, needs, 
and opportunities that the study would address in the subsequent steps. 
The inventory and forecast would provide information for understanding 
existing conditions and establishing a baseline for forecasting with- 
and without-project conditions. The inventory and forecast should 
include other related Federal and non-Federal investments within the 
region or watershed, which the Corps would consider to ensure 
consistency of purpose, maximize effectiveness, reduce costs, or 
identify other potential alternative solutions.
    The existing and forecasted future conditions would include 
descriptions of the economic, environmental, and social setting within 
the study area. It would take into account future climate change, and 
economic development and land use change scenarios. A watershed 
approach should also be used in describing current and future 
conditions. Those descriptions would discuss how affected resources are 
interrelated, describing their functional relationships, as well as 
their ability to produce or impact ecosystem services. In this manner, 
the connections between the resources and services within the study 
area and broader watershed will become apparent and allow the Corps to 
better analyze how a change in targeted water resources may impact 
those resources and services. The descriptions would also provide 
details on the existing and future conditions with respect to economic 
metrics, such as investment, markets, and productivity; environmental 
metrics, such as water quality and quantity or air quality components; 
and social metrics, such as income levels, race and ethnicity, and 
health burdens.
    The Corps would use peer-reviewed (where possible and appropriate) 
and common projections of the factors listed above. In addition, 
Indigenous Knowledge and local knowledge should be included in the 
descriptions, following appropriate procedures for free, prior and 
informed consent for use in the descriptions. The conditions would be 
described as appropriate and applicable to the specific investment, 
with consideration for the Guiding Principles of the PR&G. The Corps 
would also ensure consistency in the approach applied and conditions 
assessed across the existing and future condition inventories. The 
level of detail provided in the inventories should be commensurate with 
the rest of the analysis and level of scope and scale of the proposed 
Federal investment. Not every analysis must include detailed surveys 
and fieldwork and the Corps should rely on existing data, and 
information, and leverage existing resources to the extent practicable. 
In some circumstances, a conceptual model can be used to best explain 
to the public and decision makers in plain language and visual 
representation, how natural, social, and economic systems interact and 
how ecosystems provide services to communities and the natural 
environment. The inventory would also define the ecosystem services 
that exist in the study area.
    The forecast of future conditions is comparable to the NEPA 
identification of future impacts associated with the proposed 
alternatives. The Corps would predict and identify what the future 
conditions of the study area may be across the various alternatives. 
Such comparison would also be conducted with the No Action alternative. 
Any key assumptions made for forecasting of future conditions would be 
disclosed.
    The ``without-project'' and ``with-project'' conditions refer to 
the conditions that the Corps estimates are ``most likely'' to occur in 
the future over the period of the analysis. Since the future is 
inherently uncertain, the Corps study should identify and describe the 
key known drivers of the uncertainties. In some cases, the Corps also 
would use scenario analysis to evaluate the extent to which the 
uncertainties may affect the investment decision. For example, for 
climate change, the Corps uses scenario analysis because the science 
relies on a range of values (i.e., levels of greenhouse gas emission 
and their impacts) and it is difficult to determine which value is more 
likely to occur than others within that range. The Corps

[[Page 12085]]

would implement additional scenario analyses in cases where a reliable 
forecast of future conditions is not possible. The inventory of 
existing resources and forecast of future conditions should also 
include assumptions for scenarios and for extreme weather events to 
evaluate sensitivity of alternatives to a range of conditions, such as 
drought or hurricanes. The E.O. 14008 (86 FR 7619) directs agencies to 
build resilience against the existing impacts of climate change as well 
as those which will continue to intensify according to current 
trajectories. The Corps would use the scenario analysis and discussions 
on extreme weather events to inform how alternatives may perform under 
future conditions with respect to climate resilience. There are also 
uncertainties from other sources that would benefit from additional 
scenario analyses.
    As described in the collaboration section (234.6(d)), the Corps 
should ensure other relevant Federal and non-Federal investments are 
included in the conditions assessments. Reasonably foreseeable actions 
by public and private entities should be included to understand how key 
resources and services may change in the future and to be used to 
better understand the most likely future condition in the absence of 
the proposed Federal investment. As with any projections of future 
conditions, there is an inherent degree of uncertainty; the Corps would 
identify and characterize the degree of uncertainty for the projections 
made. Such characterization should be quantitative, when feasible, and 
qualitative when not and provide a commensurate level of detail to the 
analysis. Any residual risk that is not proposed to be, or cannot be, 
addressed or mitigated would be disclosed to aid in the decision-making 
process. If the uncertainty regarding current conditions is sufficient 
to affect the analysis, the Corps may develop multiple baselines. Where 
the effects of climate variability and climate change are relevant to 
the investment decision, the study should fully describe the key 
sources of the uncertainty and the range of its possible effects over 
time.
    The proposed future ``without-project condition'' is what is 
expected to occur, over the period of analysis, in the absence of a 
Corps project or program. The Corps currently uses a 50-year timeframe 
for the period of analysis (see ER 1105-2-100 \36\ section 2-4j). 
Future land use changes would be incorporated. The future ``without-
project condition'' is the baseline for comparison of alternatives. The 
proposed future ``with-project condition'' is what is expected to occur 
in the future, over the period of analysis, with a specific Corps 
proposed project or program in place. As described in discussion of 
Floodplains in the preamble at 234.6(c)(2), the Corps uses the CISA 
when assessing climate change conditions and climate resilience related 
to flooding of all Civil Works studies, ensuring climate adaptation is 
considered. Climate change would need to be considered in both the 
future ``without-project'' and ``with-project'' conditions. The Corps 
has a host of tools and guidance that it uses to implement the CISA, as 
previously described in 234.6(c)(2). Projections of future conditions 
would account for expected environmental, social, and economic changes, 
including those that result from climate variability and climate 
change, in particular for projects with a relatively long service or 
operational lives, as these projects may be subject to additional 
climate variability and change.
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    \36\ https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf, last accessed 
January 31, 2024.
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    The Corps would develop a summary of the process used to identify 
the existing and future conditions for the administrative record. The 
summary ensures that appropriate considerations were incorporated and 
provides transparency in the process. The Corps would ensure the 
summary includes discussion of Tribal, partner, stakeholder, and public 
inputs. Identification of existing resources seeks to quantify relevant 
resource conditions in the study area as they currently exist. The 
forecasting of future conditions would do the same over the period of 
analysis. The period of analysis does not reflect the expected service 
or operational life of the investment. The Army solicits comment on 
what the standard period of analysis should be when the Corps 
implements the PR&G. For example, rather than a traditional 50-year 
period of analysis, should the Corps use a longer or shorter period of 
analysis of changes relative to the baseline and, if so, why? The Corps 
recognizes the importance of consistency and comparability both in 
evaluating alternatives and in comparing performance across a portfolio 
of projects. However, the Corps could consider multiple periods of 
analysis for different alternatives to not bias selection of one 
alternative over another. Where relevant, the Corps also could describe 
how the period of analysis may result in different assessments of 
alternatives to ensure transparency and informed decision-making.
    Section 234.6(h) Formulate Alternatives. The next proposed 
paragraph of the Corps' ASPs establishes the primary function for plan 
formulation as developing the full range of alternatives that will 
address the water resources problem and sets the evaluation criteria of 
acceptability, efficiency, effectiveness, and completeness. These 
criteria carry over from the 1983 P&G. Investigations, data collection, 
and analysis should be ongoing, and should leverage and incorporate 
information from Tribal, state, local, non-governmental, scientific and 
economic literature, and other relevant sources.
    A range of potential plans must be investigated with a subset 
retained for further analysis, including alternatives with only 
nonstructural elements and the environmentally preferred alternative. 
Nonstructural measures and nature-based solutions \37\ are important 
considerations of the PR&G and should be integrated into alternatives 
for water resources Federal investments wherever appropriate. As with 
structural solutions, considerations should be made for technical 
feasibility, land use, cost, past performance, and longevity, for 
example. In addition, the proposed rule requires the Corps to include 
the environmentally preferred alternative in the final array of 
alternatives, which is consistent with the current Corps' planning 
process as well as consistent with NEPA.
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    \37\ See https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf (last accessed on September 21, 
2023) for more information on nature-based solutions.
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    Alternatives analyzed shall seek to address the subject water 
resources challenge, problem, or need identified in 234.6(f) based on 
the most likely future conditions. Alternatives that do not address the 
problem should not be carried forward. The alternatives should seek to 
achieve the planning and Federal objectives and follow the Guiding 
Principles. Alternatives should identify solutions that are feasible 
and meet planning objectives. It is an unwise use of Federal 
investments to continue to explore alternatives that do not meet these 
goals. The range of alternatives provides a reasonable basis for 
comparing the relative effectiveness and efficiency of the 
alternatives. The alternatives must strive to achieve economic, 
environmental, and social goals. In addition, as noted in 234.6(e), the 
same period of analysis should be used in alternatives analysis. The 
period

[[Page 12086]]

of analysis selected can bias selection of one option or another. A 
shorter analysis period would benefit alternatives with less upfront 
costs and more upfront benefits, as compared to an alternative with 
more upfront costs but more long-term benefits and lower cost over 
time. Thus, the period of analysis selected must be long enough to 
account for costs and benefits including the principal significant 
long-term effects. On the other hand, some project features may have a 
very long expected lifetime. In these cases, it may not be productive 
to cover the project's full lifespan in the analysis, e.g., if the 
costs and benefits in the far distant future are very uncertain or 
would not affect the Federal investment decision.
    When an alternative is beyond the Corps missions (which are: 
commercial navigation, flood and storm damage reduction, and aquatic 
ecosystem restoration), such alternatives can be carried forward for 
further analysis where they provide solutions to the identified 
problem, meet the goals of the PR&G, and appropriate funding is 
available or may be available (including from other agencies and 
partners without Corps action). In such case, the alternative should 
specifically identify the relevant parties with requisite 
responsibility for any action beyond Corps missions, their authority 
for that action, the interrelation between that action and the 
recommended Corps project, and appropriate sequencing of 
implementation. Any recommendations for authorization should clearly 
delineate the federal water resources project(s) being recommended for 
authorization and Corps implementation and any condition precedent for 
construction, with specificity. The proposed rule provides that for 
Corps investments, the Corps would be the designated lead for 
completing the PR&G analysis. In many Corps studies, the non-Federal 
interest pays a share of the cost. The Army solicits comment on whether 
and when the Corps should consider alternatives beyond those that the 
non-Federal interest supports, such as when an alternative may be 
beyond Corps missions.
    The rule provides that the Corps would continue to justify each 
project purpose separately, and to size each of the project features, 
based on an incremental analysis of the benefits and costs. In this 
incremental formulation of the alternatives, the Corps would decide how 
best to weigh the different kinds of benefits (rather than 
automatically giving each of the benefit categories ``equal'' weight). 
Similarly, the rule also provides that the Corps would continue to 
justify each hydrologically separable element of a project separately, 
based on an incremental analysis of the benefits and costs, and to 
identify them in its recommendations as separable elements.
    Section 234.6(h)(1). In this proposed paragraph, the screening of 
alternatives in a systematic manner is discussed. An initial set of 
alternatives would be refined as determinations are made that such 
alternatives do not meet the purpose and need, are too costly, entail 
unacceptable unavoidable impacts, or do not meet other factors. The 
refinement would also consider the Federal objective and the Guiding 
Principles. Alternatives that are eliminated should still be briefly 
discussed in publicly available documents and the Corps would include 
the reasons for their elimination. The remaining alternatives are 
considered the reasonable range of alternatives to be carried through 
the analysis and NEPA evaluation. They should be distinct enough to 
warrant individual consideration and entail different potential 
solutions to the water resources challenges. The alternatives must also 
describe the avoidance, minimization, and compensatory mitigation 
considerations for each identified alternative solution. Appropriate 
mitigation of adverse effects is to be an integral part of each 
alternative plan. The alternatives should describe not just the 
economic, environmental, and social conditions and benefits but also 
impacts. Alternatives should also describe any institutional barriers 
that may be present to effectuate the solution, including statutory 
requirements, implementation authority, regulation changes, 
implementation policy, etc. Transparency and full consideration of 
economic, environmental, and social effects, both quantifiable and non-
quantifiable, must be provided for each alternative. The Corps would 
also describe the social, environmental, and economic impacts of not 
investing, or underinvesting, in any Tribal or disadvantaged 
communities, in particular under the future ``without-project'' 
condition and the ``no action'' alternative. Programmatic-level 
procedures would generally be expected to have fewer alternatives than 
project-level procedures, as they are generally of a lower level of 
detail with fewer options for developing them.
    In all cases, the alternatives analyzed under the PR&G would be 
included in the NEPA document. As discussed previously (234.6(f)), the 
Corps would work to integrate the PR&G analysis with NEPA to the extent 
practicable. Where differences exist, the Corps would describe such 
differences in the documentation. In addition, where a Corps 
alternative has discrete measures or separable elements, each should be 
evaluated as discrete units. Plan formulation needs to describe the 
features and capabilities of any discrete measures as well as the full 
alternatives.
    Section 234.7 Evaluation Framework.
    Section 234.7(a) The proposed ASPs are intended to provide a common 
framework and requirements for the Corps to use in evaluating potential 
alternatives for Federal investments. The Corps would use the Guiding 
Principles and evaluate the contributions to the Federal Objective to 
inform the process. While the basic planning framework for the PR&G is 
similar to the P&G framework, this section includes many areas of new 
or additional focus specific to the PR&G planning framework. To the 
extent applicable, the Corps may use existing frameworks and practices 
(e.g., aspects of ER 1105-2-100) \38\ as long as they are relevant and 
acceptable under the PR&G framework.
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    \38\ https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf, Planning 
Guidance Notebook, last accessed January 31, 2024.
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    The Corps would quantify/monetize effects to the extent feasible 
and appropriate, and describe effects that cannot be quantified or 
monetized. The Corps would focus evaluation on economic, environmental 
and social effects that could impact the decision-making to avoid 
unnecessary time and costs. The Corps would include all significantly 
affected economic, environmental, and social effects, and ensure the 
evaluation framework would not leave them out if they cannot be 
monetized or quantified. The Corps would generally follow Circulars A-4 
and A-94 in this approach.
    Section 234.7(b) Economic, environmental, and social effects. The 
Corps would identify and evaluate the economic, environmental, and 
social effects across the alternatives. In this evaluation, the Corps 
would focus in each study on the key data that will affect its 
estimates of the benefits and costs and are most pertinent to the 
decision at hand.
    The Corps proposes to consider adoption of any finalized OMB 
guidance on ecosystem services (proposed at 88 FR 50912) \39\ for any 
final rule issued for

[[Page 12087]]

the Corps' ASPs to evaluate the social and economic outcomes resulting 
from environmental changes. The Corps would also employ other methods 
to evaluate the direct economic and social effects as well as 
traditional benefit-cost analysis (see Circulars A-4 and A-94). 
Ecosystems provide services to people. Ecosystem goods and services are 
those aspects provided by nature that benefit humans. A distinction is 
sometimes made between ecosystem goods (tangible commodities produced 
by nature, e.g., timber production) and ecosystem services (less 
tangible benefits of well-functioning natural systems, e.g., wetland 
water quality maintenance), but the phrase ecosystem services often 
refers collectively to all of these benefits. Federal investment 
impacts on the environment or ecosystems that affect people may be 
understood in terms of changes in service flows. A complete accounting 
identifies, at a minimum, impacted services and the projected trend of 
each service flow. This framework is well suited for analyzing many 
values associated with the natural resource, as it starts from the 
assumption that all relevant ecosystem services should be evaluated. 
The ASPs, consistent with OMB guidance, call for monetization where 
possible, quantification where not possible, or description of effects 
if neither is possible, of all ecosystem services that have economic, 
social or environmental impacts that will affect decision making. 
Qualitative information used when it is not practicable to provide 
quantified or monetized information would be given similar 
consideration in evaluation.
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    \39\ Request for Comments on Proposed Guidance for Assessing 
Changes in Environmental and Ecosystem Services in Benefit-Cost 
Analysis. https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf, last accessed on January 31, 2024.
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    The Corps' PR&G analysis would display information on environmental 
and social effects in addition to economic effects in order to provide 
decision-makers with additional information as they select among 
alternative actions. Early engagement with communities that could be 
affected by a project would be helpful to obtain information on how 
various actions may improve or degrade social benefits. Environmental 
changes that result in changes in social benefits or changes in 
ecosystem services may include changes in social interaction and 
community; quality of life; safety, mental and physical health, family 
and individual well-being; improvements in attitudes, beliefs and 
values (includes culture and religion); and more. The Corps would 
ensure that these benefits are assigned to one category (environmental, 
social, or economic) to ensure that multiple benefits that may overlap 
are only counted once.
    Monetization should follow sound economic principles and practices 
(See OMB Circulars A-94 \40\ and A-4 \41\ for examples of currently 
accepted monetization practices). Discounting is to be used to convert 
future monetary values to present or annualized values, consistent with 
the statutory requirements for the agency and relevant agency or 
Administration guidance (e.g., OMB Circulars A-94 and A-4).
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    \40\ https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/a94/a094.pdf, last accessed January 31, 2024.
    \41\ https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf, last accessed January 31, 2024.
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    Ecosystem services of potential interest in water resource 
evaluations could include, but are not limited to: water quality 
maintenance for drinking, health, recreation, energy production, 
transportation or industrial uses; flood risk management to reduce the 
risk of loss of life and the risk of damage to property and 
infrastructure; water supply or drought risk reduction for drinking, 
recreation, real estate, energy production, agriculture, transportation 
or industrial uses; aquatic and riparian wildlife and places for 
recreation or culturally valued experiences; wild populations, places 
or features existence; greenhouse gas effects on various services; 
productivity for food, timber, fish, crops and other products; and 
nature for aesthetics in viewsheds.
    In its flood and coastal storm risk management project studies, the 
Corps may include an additional analysis of the benefits using 
distributional weights to inform investment decisions as well as allow 
for the weighting of costs, where appropriate. This analysis could 
provide a more equitable way to measure the welfare impacts of these 
projects on people and their communities, by reducing the extent to 
which the average value of the property that is at risk affects the 
estimated project benefits.
    The Army notes that one of the Guiding Principles of the PR&G is 
healthy and resilient ecosystems. NEPA analyses evaluate environmental 
changes and will provide important information on environmental effects 
of alternatives. NEPA analyses may also include or provide inputs for 
effects analyses. The Corps analysis would account for relevant effects 
of alternatives on environmental changes that impact people, including 
analysis beyond what may be included in NEPA analysis. In addition, the 
Corps analysis would include its estimates of the costs and benefits in 
accounting for overall net benefits. This framework supports the 
identification of alternatives that maximize net public benefits.
    When monetization and quantification are not possible, descriptions 
that merely list and/or laud benefits are less useful to decision-
makers than descriptions that allow meaningful differentiation of 
effects across alternatives. For quantified and non-quantified effects, 
professional judgment, bolstered by evidence where available, is 
expected to be exercised in determining how important the benefits or 
costs may be in the context of the overall analysis. If the quantified 
or non-quantified benefits and costs are likely to be important, 
``threshold'' or ``break-even'' analyses are approaches that may be 
useful to evaluate their significance, as well as ``screening'' or 
``order-of-magnitude'' analyses. Whatever analytical technique is used, 
reports should indicate, where possible, which non-monetized described 
changes are most important and why.
    The proposed paragraph describes that ecosystem services to be 
considered include market and non-market commodities, in addition to 
the services that provide use and non-use values. As there are various 
methodologies appropriate for identifying and measuring changes, the 
Corps would use the most appropriate metrics and methods to evaluate 
the alternatives, commensurate with the scale, scope, and complexity of 
the water resources investment decision.\42\
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    \42\ https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf, last accessed on January 31, 2024, provides additional 
information and guidance on this topic and the Corps proposes to 
consult that document upon finalization.
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    In some cases, monetizing ecosystem services may be as simple as 
adding an additional parameter to other equations or calculations. For 
example, an agency may already be using a flood risk model to estimate 
property damages, but that model may not capture the way that natural 
vegetation affects flood risk. Assessments should monetize effects when 
possible.
    When assessing economic, environmental, and social effects, the 
Corps will first look for existing data that may be relevant to the 
question at hand, including market and non-market data. The Corps will 
also consider Indigenous Knowledge. Assessments should monetize effects 
when possible. Market data on production and sale of such goods is 
readily available, for example through the U.S. Department of 
Agriculture. When monetization is not feasible, the Corps will quantify 
where possible and describe service changes, when it is not. 
Quantification does not have to be numerical; it can also be

[[Page 12088]]

categorical as long as the indicators are clearly defined, capture the 
intended attribute as precisely as possible, free of observer bias 
(i.e., the same regardless of who estimates it), repeatable over time, 
and sensitive to changing conditions. Qualitative, quantitative and 
monetized information will be given full consideration in decisions. 
Where qualitative descriptions and analysis are used, they would be of 
sufficient detail to enable the decision-maker to make informed 
decisions. Such qualitative descriptions would be considered with 
quantitative information.
    For a proper accounting of changes in ecosystem service value, it 
is important to fully articulate the processes and functions that 
relate ecosystem structure and processes to the benefits directly 
enjoyed by humans. The evaluation of benefits should then focus on the 
final endpoints of this relationship that might be produced by one or 
more intermediate ecosystem services and supported by other ecological 
processes. Focusing on these final endpoints will help avoid double 
counting. Changes over time as well as any uncertainty in assessing 
impacts of an action on ecosystem service production would be 
described.
    Many ecosystem services provide benefits to people not located 
where the service is produced. For example, while those who live just 
downstream from a wetland or regularly view scenic landscapes in a 
known park may be well-understood as beneficiaries, others who live 
farther away may be harder to identify. Services that provide non-use 
values (e.g., existence values) might provide benefits to individuals 
across the U.S., with no clear relationship between distance to the 
resource and value. The Corps would identify those populations who may 
be impacted by a change in the resource to the extent feasible. The 
results of the analysis would clearly define these groups and describe 
how the groups were identified. The Corps would also note whether 
subgroups within a population may be affected differently by a change, 
such as on the basis of geographic location, income levels, etc.
    The Corps' analysis would describe when benefits are likely to be 
realized, and when costs are likely to be incurred. To enable 
comparison of benefits and costs occurring at different times, 
appropriate discounting methods would be used. When benefits are not 
described monetarily, a discussion of the impact of waiting for future 
benefits would be included.
    The Corps uses ecosystem services now to evaluate the benefits and 
costs of its proposed water resources development projects, to assess 
resource-related losses and in determining restoration to compensate 
for resource-related losses, to improve resource program planning and 
management, and in application of modeling tools. This proposed rule 
preamble is not intended to provide a ``how to guide'' on ecosystem 
services or to provide comprehensive or specific instructions on how to 
implement the analysis but rather to provide general concepts. As 
stated earlier, the Corps would consider and seek to implement any 
forthcoming final ecosystem services guidance from OMB (88 FR 50912).
    The Army solicits comment on any specific tools and methodologies 
that commenters may wish to recommend for quantifying or monetizing 
economic, environmental, and social effects.
    Section 234.7(c) Best available actionable science and commensurate 
level of detail. To support the evaluation of alternatives, the 
analysis should use the best available actionable science, Indigenous 
Knowledge, data, techniques, procedures, models, and tools across the 
wide variety of pertinent subjects. As stated in other sections of this 
preamble, the effects of the alternatives should be monetized where 
feasible. Across the alternatives for any given proposed water 
resources investment, consistent methodology should be applied and 
established tools can also be routinely used to improve consistency 
across decisions. However, the Corps would adapt to new science, 
knowledge, data, and tools as they are developed and proven. This helps 
ensure the Corps does not simply react to constantly changing up-to-
date science. By relying on actionable science rather than latest 
available, the Corps avoids requiring the adoption of new procedures 
only to remove them again shortly thereafter if differing scientific 
views emerge. Similar to other areas within the proposed ASPs, the 
level of detail, scope, and complexity of analyses should be 
commensurate with the scope of complexity of the decision. By scaling 
the level of detail and collection of data to the relevant decision for 
investment, unnecessary and excessive cost and expenditure of resources 
may be avoided. For example, for a smaller study that qualifies for 
scaled analysis under this proposed rule in Table 1, such as a study 
under the Corps' Tribal Partnership Program or the Continuing 
Authorities Program, the Corps would generally use the best available 
actionable data and information using existing sources to the extent 
practicable. Rather than expending a large investment to gain a small 
level of refinement to existing data, the Corps may make judgments as 
to the range of acceptable information to make informed decisions. The 
level of detail and granularity of the data would generally be 
commensurate with the scale, scope, and complexity of the water 
resources investment decision. In addition, the most relevant and 
appropriate science for the particular investment would be used. This 
would result in the information best suited to inform a decision 
regarding a subject investment. Refer to 234.6(g) regarding describing 
future conditions and addressing the inherent uncertainty.
    Section 234.7(d) Risk and uncertainty. To improve decision-making, 
the ASPs require that risks and uncertainty be identified, described, 
considered, and quantified if possible. This section calls explicitly 
for consideration of the costs and benefits of reducing risks and 
uncertainties. The Corps would align its disclosure, consideration, and 
assessment of risk and uncertainty with Circulars A-4 and A-94 to the 
extent practicable. A useful definition of ``risk'' for planning 
purposes is the likelihood of a specific magnitude of a harmful outcome 
occurring in the future. ``Uncertainty'' is used to express doubt or 
lack of knowledge about a positive (beneficial) or negative (harmful) 
outcome. Risk and uncertainty may be expressed either qualitatively or 
quantitatively. Some elements of uncertainty are described at section 
234.6(g) regarding future conditions. The risks and uncertainties need 
to be disclosed for transparency and in plain language and made 
relevant to the comparison of alternatives. When available, such risks 
and uncertainties should be contextualized in a format more readily 
understandable by the public. The Corps would also work to identify 
whether improvements to existing data or models may lessen risks or 
uncertainties. In some instances, reducing risks and uncertainty may 
result in increased costs and the advantages of doing so in informing 
the decision-making should be weighed against those additional costs. 
When analyzing potential Federal water resource investments, areas of 
risk and uncertainty would be identified, described, quantified where 
possible, and considered as part of the decision. The first step to 
evaluate risk and uncertainty would be to identify the nature of the 
harmful outcomes and possible benefits. The second step would be to 
identify the likelihood of each harmful or beneficial outcome, either 
qualitatively or quantitatively. The third step would be to identify a

[[Page 12089]]

specific magnitude or range of magnitudes of each outcome and interpret 
the significance of each.
    The Corps solicits comment on risk informed frameworks that can 
supplement or improve its current risk informed planning processes (see 
Planning Manual Part II: Risk-Informed Planning).\43\ One approach that 
shows promise domestically (e.g., California Dept of Water Resources) 
and internationally \44\ is Climate Risk Informed Decision Analysis 
(CRIDA). CRIDA concepts for scenario planning use bottom-up, 
vulnerability-driven approaches including stress tests and triggers to 
provide a framework to consider the full range of future risks (e.g., 
climate, population, land-use change) that matter to communities and 
decisionmakers and help develop robust long-term decisions for large-
scale, multi-generational water resources investments. By collaborating 
with stakeholders to identify thresholds for system failure, CRIDA 
concepts can help identify and communicate risks and ensure that water 
resource solutions meet the needs of communities in the short and long 
term.
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    \43\ https://planning.erdc.dren.mil/toolbox/library/Guidance/PlanningManualPartII_IWR2017R03.pdf, last accessed January 31, 2024.
    \44\ https://en.unesco.org/crida, last accessed January 31, 
2024.
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    Section 234.7(e) Adaptive management. Adaptive management is 
defined under the proposed rule at 234.2(b). As cited in the PR&G, 
adaptive management is highlighted as a tool in the proposed rule to 
help reduce or manage within uncertainties. The proposed rule calls for 
adaptive management measures to be clearly identified and evaluated as 
part of the alternatives. It should be considered throughout the 
process and should be employed as soon as triggers are identified which 
necessitate such measures. Post-construction adaptive management to 
address unforeseen conditions or impacts of the project should also be 
included in Corps recommendations for project authorization.
    Section 234.7(f) and (g) Climate change and Water availability, 
water use, and resilience. These proposed paragraphs require 
consideration of climate change, water availability, water use, and 
drought and flood resilience in all aspects of the planning process. 
This will involve the use of best available actionable science and the 
leveraging of local information on future climate change, including the 
associated uncertainty and likely impacts. This approach is consistent 
with the ASA(CW) Climate Preparedness and Resilience Policy Statement 
and helps to ensure that the Corps does not have to react constantly to 
every new scientific report and update. By relying on actionable 
science rather than the latest available, the Corps avoids requiring 
the adoption of new procedures only to remove or modify them again 
shortly thereafter as scientific views emerge and evolve. See preamble 
section 234.6(c)(2) on Floodplains for further discussion on how the 
Corps considers climate change in the planning process. The discussion 
should include the interrelated nature of flood-related climate change, 
climate, drought, water, and ecosystem reliability, availability, and 
resilience. The evaluation should consider how these areas interrelate 
and how they would affect the net economic, environmental, and social 
benefits of the proposed water resources investment. Effects from 
climate change, including impacts on water availability, for example, 
have been noted as an environmental justice issue. Climate change, 
water availability, water use, and resilience also impact environmental 
factors, such as wetlands and river systems and the animal and plant 
species that they support. The evaluation should ensure these factors 
are considered for the current and future conditions assessment to 
identify water resource needs now and in the future across the 
alternatives, and how those alternatives may result in added 
resilience, when applicable to the project purpose.
    Resilience should be considered under both the drought and flooding 
scenarios. The consideration of multiple uses and competing demands on 
water resources shall be taken into account when designing solutions to 
water resources problems. Water availability, water use, and resilience 
will be particularly important for projects that serve multiple 
purposes.
    Section 234.7(h) Nonstructural and nature-based alternatives. This 
proposed paragraph further describes requirements to develop 
alternatives that use nonstructural measures to address the water 
resources problem. Nonstructural approaches are defined at section 
234.2(l) of the proposed rule text. The Corps led a large, diverse 
collaboration that developed and published (2021) the International 
Guidelines on Natural and Nature-Based Features for Flood Risk 
Management.\45\ In addition, a Report on nature-based solutions was 
recently issued to assist Federal agencies in moving ahead on 
implementing nature-based solutions to solve water resources 
challenges, where appropriate, titled ``Opportunities to Accelerate 
Nature-based Solutions: A Roadmap for Climate Progress, Thriving 
Nature, Equity, & Prosperity.'' \46\ The proposed paragraph requires 
the consideration of natural systems, ecosystem process and nature-
based approaches throughout alternatives development where they are 
feasible and consistent with the study purpose. A full nonstructural 
alternative and a full nature-based solutions alternative would also be 
included in the final array of alternatives. In some cases, these may 
be one and the same.
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    \45\ https://ewn.erdc.dren.mil/?page_id=4351, last accessed 
January 31, 2024.
    \46\ https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf, last accessed January 31, 2024.
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    Section 234.7(i) Tribal treaty rights. This proposed paragraph 
provides that any alternatives for water resources investments must 
protect Tribal treaty rights. Each treaty is unique and must be 
analyzed to ensure any possible impacts, as well as benefits, to treaty 
rights are fully understood and accounted for in the alternative 
evaluations. The Corps would ensure consistency with the ``Memorandum 
of Understanding Regarding Interagency Coordination and Collaboration 
for the Protection of Tribal Treaty Rights and Reserved Rights'' \47\ 
during the evaluation framework process. The Corps commits to enhancing 
interagency coordination and collaboration to protect Tribal treaty and 
reserved rights and to fully implement Federal government treaty 
obligations. If Tribal treaty rights preclude selection of an otherwise 
viable alternative, the Corps would disclose as such. The Corps also 
commits to following the ``Best-Practices for Identifying and 
Protecting Tribal Treaty Rights, Reserved Rights, and Other Similar 
Rights in Federal Regulatory Actions and Federal Decision-Making''.\48\
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    \47\ https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf, last 
accessed January 31, 2024.
    \48\ https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf, last accessed January 31, 2024.
---------------------------------------------------------------------------

    Section 234.7(j) and (k) State water law and International 
obligations. These proposed paragraphs provide that the alternatives 
for Federal investments must ensure compliance with State water laws to 
the extent they do not conflict with Federal laws and regulations as 
well as treaty and other international obligations, and if any 
constraints within that compliance require an otherwise viable 
alternative

[[Page 12090]]

to not be carried forward then the Corps would disclose as such.
    Section 234.7(l) Timing. This proposed paragraph provides in the 
regulation what is also discussed in section 234.6(g) regarding the 
period of analysis for review of alternatives. The time period selected 
would be documented with appropriate supporting information. The same 
timeframe would be used across all alternative evaluations. The Corps 
currently uses a 50-year timeframe for the period of analysis (see ER 
1105-2-100 \49\ section 2-4j). Under the proposed regulation, a better 
approach may be for the Corps to consider a period of analysis 
sufficient to capture all important effects of each alternative. The 
Army solicits comment on whether there should be an upper limit 
established for the period of analysis. If an upper limit is 
established, the Army solicits comment on whether the Corps' current 
timeframe is the appropriate period of analysis for implementing the 
Corps' ASPs. Alternatively, should the timeframe be longer given that 
some benefits could accrue over timescales beyond 50 years. In 
addition, comment is sought on whether the period of analysis should be 
variable based on the Corps' mission and particular purpose and need of 
the proposed investment. The Corps recognizes the importance of 
consistency and comparability in evaluating alternatives and projects.
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    \49\ https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf, last accessed 
January 31, 2024.
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    234.8 Final Array of Alternatives.
    This proposed paragraph of the ASPs outlines the final array of 
alternatives to address the problem that would be identified and 
subject to in-depth analysis and consideration. The proposed rule 
requires the Corps to include six types of alternatives in the final 
array: a no action or without-project condition alternative, a fully 
nonstructural alternative, a fully nature-based alternative, an 
environmentally preferred alternative, an alternative that maximizes 
net public benefits, and a locally-preferred alternative. A single 
alternative might satisfy more than one category (e.g., a nature-based 
alternative that is also the net benefit maximizing alternative and has 
broad support from local interests), and there may be cases where there 
are two alternatives in a category that need to be considered.
    The no action alternative describes the conditions where no Federal 
investment is made by the Corps in a water resources development 
project. The fully nonstructural alternative is comprised only of 
nonstructural approaches. This alternative must be considered feasible 
to be carried forward in the final array. There may be circumstances 
where a solely nonstructural approach alternative or fully nature-based 
alternative is not feasible due to technology or legal limitations, for 
example. The Corps would also consider nature-based solutions and non-
structural approaches as components in the other alternatives. The 
environmentally preferred alternative generally provides the solution 
that maximizes environmental benefits. It causes the least damage to 
the biological and physical environment and best protects, preserves, 
and enhances historical, cultural, and natural resources. The 
alternative that seeks to maximize net public benefits is also required 
to be included in the final array. This alternative is the plan that 
the Corps estimates would achieve the greatest net public benefits, 
based on its estimates of the costs and of the overall economic, 
environmental, and social benefits to society. The last alternative to 
be included is the alternative preferred by the non-federal interest, 
called the locally preferred alternative. All alternatives in the final 
array must be developed using a comparable level of rigor and detail. 
The non-federal interest is defined in the preamble at section 234.2(g) 
and as described, is the local interest envisioned by the PR&G for 
purposes of the Corps' implementation. The same alternative may be 
identified as one or more of these plans (e.g., the fully nonstructural 
alternative could also be the fully nature-based alternative, or the 
locally preferred alternative may be the same as the alternative that 
maximizes net public benefits). In addition, nonstructural measures and 
nature-based solutions should be considered as components of the other 
alternatives in the final array, essentially providing an integrated or 
``hybrid'' of gray (hard) infrastructure with these other measures. The 
section also requires inclusion of any needed mitigation for 
unavoidable adverse effects in the alternative and analysis. The 
section also provides that if an alternative requires any changes in 
law, regulations, or policy, such changes must be clearly identified 
and explained. The last paragraph provides a summary of what the 
discussion of the final array of alternatives should include to 
describe the purpose, study area, impacts, as well as considerations 
described in the Guiding Principles and evaluation framework.
    Section 234.9 Evaluate Effects of Alternatives.
    Section 234.9(a) and (b) These sections of the proposed ASPs 
establish the general framework for the analysis of the effects of the 
final array of alternatives. The analysis must evaluate how an 
alternative's benefits compare to its costs, how they perform with 
respect to the PR&G's Guiding Principles, how they perform against the 
objectives of the study, and how they perform against the prescribed 
formulation criteria of completeness, effectiveness, efficiency, and 
acceptability. Therefore, the final array of alternatives will be 
assessed in a manner to best inform decision-making. The objectives of 
the study may be related or stem from the project's purpose and need 
but must be clear and focused so that they can be used to evaluate 
alternatives. The Army notes that there can be tension between a plan 
that is efficient versus one that is robust or resilient. Ensuring that 
both resilience and uncertainty are accounted for in any decision-
making framework is important.
    Section 234.9(c) Consideration of benefits and costs. This proposed 
paragraph establishes three categories to fully account for the costs 
and benefits of an alternative and its contributions to the Federal 
objective that are to be evaluated fully: economic, environmental, and 
social. This framework corresponds to the ``triple bottom line'' of 
sustainable economic development. Alternatively, Army is soliciting 
comment on whether to eliminate the three categories to simply account 
for all costs and benefits without further categorization which may 
make it easier to avoid double counting, noting though that certain 
costs and benefits may not be as visible if they are not specifically 
called out in a category. Distributional analyses, including an 
analysis of regional economic benefits, may be used to further compare 
alternatives in some cases (see Section 234.10). These three categories 
will facilitate the display of alternatives, tradeoffs, and support the 
identification of the alternative(s) that maximize net public benefits. 
These three categories encompass all significant effects of a plan on 
the human environment as required by NEPA (42 U.S.C. 4321 et seq.). 
They also encompass social well-being as required by Section 122 of the 
Flood Control Act of 1970 (Pub. L. 91-611, 84 Stat. 1823). The proposed 
paragraph reiterates that the costs and benefits should be quantified 
and monetized to the extent practicable using a scientifically valid 
and acceptable way. If qualitative applications are used, they must be 
of sufficient detail to ensure the decision-

[[Page 12091]]

maker can make an informed decision understanding both the importance 
and magnitude of potential changes.
    This proposed paragraph is the heart of the PR&G and displays the 
largest change in current Corps planning. Rather than primarily 
focusing on national economic development in the alternatives analysis, 
the proposed ASPs require all three categories to be considered fully. 
As previously stated, this is consistent with the PR&G (see preamble 
Section 234.4(c). Some benefits may appear to fit in more than one 
category. If this occurs, the use of logic models, exploration with 
experts or other methods can help further specify benefits and parse 
them into their appropriate different categories, representing the full 
set of effects and avoiding double counting. For example, an 
alternative that restores riparian habitat may reduce erosion, 
improving in-stream habitat for aquatic species and improving 
navigability for shipping and recreational boating. The benefit to 
aquatic species should be captured as an environmental benefit, the 
effect on shipping should be captured as an economic benefit, and the 
effect on recreational boating should be captured as a social benefit. 
These are three distinct benefits and all should be included as 
relevant. Some social benefits can also be monetized, and when feasible 
should be. In those cases, they should count only once, as economic 
benefits. Qualitative information can be used to further contextualize 
their social relevance, but double counting should be avoided.
    This proposed paragraph calls for the current dollar value costs 
along with non-monetized measures and description to be measured 
against the current dollar value and non-monetized measures and 
description benefits of each alternative and compared to the no action 
alternative. Future predicted cost and benefit value (monetized) 
estimates would be discounted to present value terms for the analysis. 
The evaluation of alternatives is part of the NEPA alternatives 
analysis, in which the No Action Alternative and Action Alternatives 
are described, evaluated, and compared. The Army solicits comment on 
whether the selection of discount rates, and consideration of declining 
discount rates should follow the guidance in OMB Circulars A-4 and A-
94.
    The proposed ASPs intentionally do not dictate specific evaluation 
tools, methods, or processes. These tools and methods would evolve over 
time and the Corps would commit to using the best available tools and 
methods appropriate for the analysis, so the analysis does not get 
stale. In this manner, the Corps can be nimble in changing with the 
evolving science, knowledge, data, and methods, rather than 
promulgating a prescriptive method in regulatory text which may quickly 
be outdated. It is envisioned that internal agency guidance may be 
developed providing specific references for the Corps to employ in 
analysis, which can be updated more readily. This may include areas 
such as income weighting or the use of distributional analysis to 
inform a decision on a proposed investment that would primarily benefit 
a specific Tribal Nation or disadvantaged community. Such internal 
agency guidance would be posted for public transparency so the public 
understands which tools and methods the Corps may be applying. 
Recommendations for tools and methods are solicited through this 
proposed rule. In addition, as the Corps implements the ASPs, there may 
be lessons learned and best practices that also necessitate the Corps 
to be nimble with internal agency procedures regarding evaluation 
tools, methods, and processes to implement the ASPs. Due to regional 
variation in water resources and challenges, one common set of tools 
and methods may not be appropriate for nationwide use. The Corps would 
employ the most appropriate tools, methods and processes for different 
type of projects and problems.
    This framework would include the analysis of costs and benefits 
using tools that have long estimated the effects of an alternative on 
the Corps' existing P&G's four accounts where still relevant and 
appropriate: National Economic Development, Regional Economic 
Development, Environmental Quality, and Other Social Effects. Some of 
the tools the Corps uses to calculate the four accounts now may still 
be relevant when determining economic, environmental, and social 
effects under the ASPs. The Corps would do an assessment to determine 
which existing tools may still be helpful, which may need modification, 
and where gaps exist for creation of new tools. The Corps would not be 
identifying the four accounts but rather focusing on economic, 
environmental and social effects as described in this proposed rule. 
Additional methods, tools and processes may be used and would likely be 
developed over time to better achieve a fuller accounting of benefits 
and costs. In general, the Corps will follow Circulars A-4 and A-94 for 
implementing a benefit-cost analysis. The Army also solicits comment on 
how such analysis would best be conducted for projects affecting Tribal 
Nations, and whether the Corps should identify, characterize, and 
evaluate the benefits to the Tribal Nation separately, as opposed to 
including them in a broader assessment of the overfall benefits of the 
proposed project and the alternatives to the U.S. Nation (including the 
affected Tribal Nations).
    While the proposed ASPs do not prescribe the techniques to be used 
to quantify and monetize costs and benefits, the Corps' ASP analysis 
must include information to justify the use of any particular technique 
as the most appropriate given the circumstances. The justification of 
any analytical techniques used would include discussion on why the 
method is the most appropriate for the analysis, how it compares to 
other methods that could have been used (pros vs. cons), and what are 
the risks and uncertainties inherent in using that particular 
technique. The Corps' ASPs allows for the use of new analytical 
techniques and methodologies, as they become available and cost 
effective. Costs would include the costs of operations and maintenance.
    The PR&G does not direct the Corps to develop ASPs that require the 
selection of a particular alternative investment, but rather to 
evaluate a range of alternatives. When evaluating these alternatives, 
the Corps would keep in mind a number of key aspects, including: 
economic, environmental, and social impacts are interrelated; not all 
impacts can be monetized, and impacts described qualitatively should be 
given full consideration; and, there could be more than one alternative 
that reasonably and approximately meets the Federal objectives and 
maximizes the public benefits relative to costs.
    Section 234.10 Compare Alternatives.
    Section 234.10(a) Comparing alternatives. This proposed ASP section 
calls for plans to be compared with each other and the baseline. The 
alternatives would include a description of the adaptability and 
resilience of alternatives to climate change and other risks. The plan 
(or plans) that reasonably maximizes net public benefits would be 
identified to be included in the final array of alternatives. The 
proposed ASPs explicitly call for robust engagement to provide 
meaningful participation and input from Tribal Nations and stakeholders 
as they may have different perspectives, values, considerations, and 
information on potential effects to inform tradeoffs between 
alternatives. See section 234.6(d) in the preamble for

[[Page 12092]]

discussion on collaboration and engagement. Army recognizes that 
different preferences will exist and understanding these perspectives 
helps the Corps deliver sound investment advice.
    The Corps solicits comment on how it could compare alternatives and 
develop a recommendation. Are there multi-objective decision frameworks 
or approaches that may have successfully been used in other contexts or 
purposes that may assist? How can the rule best ensure that the Corps 
will be comparing the options and developing its project proposals 
objectively and consistently with a national perspective?
    For example, a multi-criteria decision analysis (MCDA) could be 
employed and the Army solicits comment on when MCDA would be 
appropriate for the application within a PR&G analysis. Another 
approach that could be followed is structured decision making (SDM).
    In addition, in certain instances the Corps has employed decision 
frameworks such as using resilience as a guiding strategy under the 
City Resilience Framework \50\ for the Coastal Texas study. The 
framework presents a broad, multi-dimensional perspective on the 
integrated conditions that support resilience within a community. The 
framework highlights four dimensions of resilience: Health & Wellbeing; 
Economy & Society; Infrastructure & Environment; and Leadership & 
Strategy. The Army solicits comment on whether the City Resilience 
Framework align with the PR&G Guiding Principles and could be employed 
in a decision framework under the proposed ASPs.
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    \50\ https://www.rockefellerfoundation.org/report/city-resilience-framework/, last accessed January 31, 2024.
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    In another example of a decision framework employed by the Corps 
for the Brandon Road project, system performance robustness was used as 
a criterion to evaluate alternative plan robustness in addressing 
current and future threats of invasive carp migrating from the 
Mississippi River into Great Lakes basins. Robustness considered the 
(1) ability to cycle in nonstructural measures, (2) ability to cycle in 
structural measures, (3) number of structural control points within the 
study area, and (4) number of modes of transport the alternative 
controls. Factors were assessed in a robustness tool that also 
considered cost effectiveness analysis as a component of plan 
selection.
    The Corps also collaborated with the State of Louisiana and 
researchers from RAND to develop a proof-of-concept application of 
Robust Decision-making (RDM) methods to support coastal storm risk 
management and ecosystem restoration multi-purpose planning for the 
Louisiana Coastal Protection and Restoration study. Although limited, 
the proof-of-concept illustrated how RDM may be an appropriate method 
in some cases to derive scenarios for planning and communicating risk 
and uncertainty to decisionmakers and stakeholders at the national, 
regional, state, and local levels. The process initially lacked a 
framework for integrating planning with the relevant uncertainties 
inherent to the problem. The method was later expanded to employ a 
risk-based tool to assess a full range of economic and non-economic 
assets at risk against various structural and nonstructural risk 
reduction measures. Information from this risk-based tool helped to 
inform decision-makers and the public on the risks, costs, and 
consequences of a full range of potential flood risk reduction, coastal 
restoration, and hurricane and storm damage reduction measures.
    In another example for the Sutter Basin Pilot Study, the Corps 
employed a study process that relied on sound professional engineering, 
economics, and environmental judgment and analyses, and focused the 
amount and type of data collected and analysis on the risk and 
consequences of the decisions being made. Costs and benefit estimates 
used for the initial steps of the planning process were based on an 
appropriate level of detail for screening of draft alternatives to a 
final array of alternatives. For the study, the appropriate level of 
detail was selected using comparative cost estimates, rather than 
absolute cost estimates. The range of confidence in cost and benefit 
estimates was presented in the comparison of alternatives; however, 
only mean estimates were presented in the study. More detailed cost 
estimates were prepared for the evaluation of the final array of 
alternatives leading to the identification of the recommended plan. In 
that study, the Corps found that no single factor provided the basis 
for the Corps decision for a recommendation for Federal investment. 
Alternative comparison and selection suggested that there was no single 
``best'' plan, and that there may be a variety of approaches 
(quantitative and qualitative) to decision-making using multiple 
criteria.
    The Army solicits comments on the various frameworks and methods 
listed above as well as other alternative frameworks that may be 
employed in the ASPs decision-making process when facing a multi-
dimensional problem with complex tradeoffs between monetary and non-
monetary outputs and quantitative and qualitative data, which would 
support objective analysis and sound decision-making.
    Section 234.10(b) Tradeoffs. Tradeoffs are anticipated and expected 
for the implementation of the ASPs regarding the potential 
alternatives. Tradeoffs are assessed from the perspective of the 
specific circumstances of each study, including the study area, 
resources, impacted populations, and study authority, to form the basis 
for deciding which plan best addresses the Federal Objective and 
Guiding Principles. The Army solicits comment on whether the Corps 
should pursue a more straightforward approach, using maximizing the net 
benefits as a primary metric for use in comparing the alternatives and 
evaluating the tradeoffs, and to clarify the decision framework.
    The tradeoffs would be described throughout the decision-making 
process to ensure an informed decision. They should describe the 
effectiveness of the alternatives in solving the water resources 
problems, the tradeoffs in monetary and nonmonetary terms of what must 
be given up to enjoy the benefits of the alternatives in relation to 
the baseline, and the differences among the alternatives. These factors 
will ensure the tradeoffs are fully described, contemplated, and 
understood for decision-making. Consideration should be given for 
whether some effects measured are more relevant than others, and 
whether others are more incidental in nature which should be noted and 
separated. The Corps would note effects that are irreversible or that 
have high end-of-lifecycle costs to reverse (including decommissioning 
costs). Different project elements may be justified on different types 
of public benefits, which should be described. Tradeoffs may be 
identified on the basis of both quantifiable and unquantifiable terms. 
In addition, each separable project element's goals and objectives 
should be identified to provide a rationale for inclusion or exclusion 
from the alternative.
    Tradeoffs among potential alternatives and their anticipated 
effects may require professional judgment when a computationally driven 
``best'' answer is not clear. Tradeoffs must be understandable and 
transparent, and the analysis should be conducted in a consistent 
manner across alternatives. The level of detail in assessing separable 
components and the associated description of the specific tradeoffs 
among the goals and objectives of the

[[Page 12093]]

investment decision should be sufficient to inform the decisions to be 
made and to provide transparency to the decision-making process. The 
frameworks discussion provided earlier in the preamble at 234.10(a) may 
also be helpful in evaluating these tradeoffs.
    Section 234.10(c) Information for inclusion in the analysis. This 
proposed paragraph outlines various information and tables that will 
promote consistency and transparency in comparisons across different 
studies. The information is also consistent with other Federal agency 
approaches in their ASPs so it can also provide consistency across the 
Federal government. Information must highlight how alternatives achieve 
the four evaluation criteria of completeness, effectiveness, 
efficiency, and acceptability. The information must include the content 
from the Guiding Principles and the evaluation framework described in 
Sections 234.6(c) and 234.7.
    Various tables that describe resource/ecosystem tradeoffs would 
also be required, including changes in each affected resource. This 
matrix would summarize the tradeoffs, relative to the baseline, 
resource-by-resource. The matrix would include information on the 
financial elements of an alternative. For example, if the alternative 
involves repayment by non-Federal entities or other financial 
considerations are required, then the table would display the magnitude 
of the annual payments as well as the present value of the payments 
over the period of analysis.
    The matrix would generally be constructed using an ecosystem 
service framework but would also ensure inclusion of economic, 
environmental, and social effects that are relevant but may be 
difficult to include in an ecosystem services framework. The matrix 
would generally include estimates of the annualized and total changes 
in the quantity and/or quality of each effect, relative to the No 
Action alternative, over the period of analysis. The metrics used to 
evaluate changes in services and display tradeoffs would be clearly 
defined. Estimates of changes to relevant benefit indicators relative 
to the No Action alternative may be used. In addition, a quantitative 
measure of affected ecosystem services, even if not monetary, that goes 
beyond biophysical measures to address relevant social welfare would be 
included. Changes in estimated benefits would be quantified and 
monetized to the greatest extent feasible. The monetized costs and 
benefits of the project benefits would generally be presented on an 
annual basis over the period of analysis as well as in present value 
terms. The major structural and nonstructural features of the 
recommended plan, any special considerations for implementation, and 
the estimated cost of implementation would also be provided in the 
analysis. The monetized costs relative to the baseline would be 
quantified and presented on an annual basis as well as in present value 
terms. Estimates of the annual changes in effects including those on 
the relevant ecosystem services, relevant time periods over which the 
changes are anticipated to occur would be included, as well as the 
level of certainty associated with each estimate. Non-monetized 
quantitative and qualitative measures and description of changes in 
costs and benefits would also be included along with the monetized 
values of the project and presented on an annual basis where feasible. 
While use of an ecosystem services decision matrix provides a useful 
construct, it should not be constraining if there are economic, 
environmental, or social effects that need to be included but would not 
be considered ecosystem services.
    Additional tradeoff displays should show any other relevant 
important information. A summary table would display the present value 
of costs and benefits, and another table would indicate the extent to 
which the alternatives achieve the Guiding Principles. The summary 
table would include all benefit estimates, regardless of the technique 
used to estimate them. To the extent feasible, all cost and benefit 
estimates should be accompanied by either quantitative or qualitative 
estimates or descriptions of the certainty of the estimate. Qualitative 
information is considered with quantitative information. The summary 
table should include entries for any benefits and costs that are not 
monetized and briefly provide a rationale for why they were not 
monetized. The text of the analysis must include a more in-depth 
discussion of these issues. The achievement of the objectives table 
information may be qualitative in nature and each of the Guiding 
Principles must be addressed individually.
    The Corps would use the most readily available, scientifically 
acceptable, and best available data and information, to include 
Indigenous Knowledge as described in previous sections of this preamble 
for assessing tradeoffs. However, the Army solicits comment on the 
tools, methods, and processes for assessing the tradeoffs to best 
elicit preferences resulting in the most informed recommendations in a 
consistent manner, although regional variation is expected by the 
nature of water resources and their challenges having great variation 
across the Nation. The Army would also consider tools and techniques to 
assess perceived risk in the description and assessment of tradeoffs, 
which can provide additional information regarding community concerns 
and needs.
    The IG provided that common displays that are used across agencies 
enhance transparency and clarity about the decision-making process and 
encouraged agencies to collaborate to develop these common displays. 
The displays discussed above are described in the Department of 
Interior's ASPs to help ensure a more common display for use by Federal 
agencies.
    Section 234.10(d) Risk and uncertainty. This section also requires 
a description of areas of risk and uncertainty with sufficient detail 
so that decisions can be made with knowledge of the degree of 
reliability and the limits of available information, recognizing that 
even with the best available engineering and science, risk and 
uncertainty will always remain.
    The economic analyses need to reflect the uncertainty inherent in 
the data or various assumptions as to future economic, demographic, 
environmental, and technological trends. The environmental analyses 
also should account for the uncertainties. Various projections and 
assumptions of reasonable alternative forecasts, if realized, should be 
analyzed to determine if they would appreciably affect estimated 
results. From the vantage point of one who is deciding whether to 
propose or make a particular investment, the risk and uncertainty in 
the outcome tend to increase over time. The risk and uncertainty 
include the extent to which the underlying assumptions that drive the 
predicted benefits and costs may overstate or understate the actual 
benefits and costs. To address this concern (at least in part), the 
Corps may include an estimate of the return on investment under current 
conditions both in its flood and coastal storm risk management project 
studies, and in its commercial navigation studies. The Army solicits 
comment on this approach. This could show the extent to which the 
estimated benefits assume a change in current conditions in the future:
     For flood and storm damage reduction studies, this 
analysis may help communities and decision makers understand the extent 
to which the Corps estimates that the current flood risk is likely to 
increase due to climate change and how quickly that risk may change.

[[Page 12094]]

     For commercial navigation studies, this analysis may 
enable decision makers to understand the extent to which the Corps 
could (or could not) justify the proposed navigation investment under 
current conditions. This analysis could help in establishing priorities 
for investment, and would underscore the extent to which a study relies 
on an assumed sustained long-term growth in future traffic.
    Section 234.11 Select the Recommended Plan.
    Section 234.11(a) Recommended plan. The final part of the proposed 
ASP's planning section describes how to recommend a decision to either: 
(1) implement an alternative project or program; or (2) take no Federal 
action. Federal investments would seek to achieve the Federal objective 
and maximize net public benefits, as measured by the economic, 
environmental, and social costs and benefits to the Nation. The Corps 
would clearly identify the alternative that achieves the water 
resources objectives and reasonably maximizes the public benefits to 
the Nation relative to costs. In addition, this proposed rule makes 
clear that more than one alternative in the final array may meet these 
conditions; for example, the non-federal interest locally preferred 
alternative may equate to the alternative which meets objectives and 
maximizes net public benefits. Decisions or recommendations involving 
Federal investments affecting water resources would be made through a 
dynamic process, both iterative and progressive. The process should be 
responsive to significant changes in information, conditions, and/or 
objectives. These can occur at any point in the process and, depending 
on the potential consequences of the changes, may dictate that previous 
decision points, assumptions, and forecasts be reviewed in light of 
these changes.
    Plan selection requires decision-makers to assess tradeoffs and to 
consider the extent of both monetized and non-monetized effects. The 
plan selection must disclose the criteria and considerations used to be 
transparent to the public in how the recommended plan was selected. In 
addition, the summary of Tribal and stakeholder engagement and their 
reflections on the various alternatives should be included in the plan 
selection.
    The selected plan recommendation would provide a complete 
discussion of the tradeoffs involved in making a decision regarding the 
proposed Federal investment; a discussion of how economic, 
environmental, and social benefits (monetized, quantified and 
described) justify the costs (monetized, quantified and described); and 
adequately attain the goals outlined in the Guiding Principles, 
recognizing how tradeoffs between the various goals affect the level of 
attainment within each Guiding Principle. If the basis for plan 
selection depends on non-monetized benefits or costs, the report would 
describe the benefit-cost analysis conducted for the alternative being 
selected which would include an explanation of the relative importance 
of these benefits/costs and why they are not monetized.
    Through this process, the PR&G helps the Federal government improve 
decision-making by accounting for long-term costs and benefits; 
developing investments to withstand or adapt to climate change; 
creating better, more resilient communities; and avoiding conflicts and 
project delays by including local input.
    Section 234.11(b) Exceptions. The proposed rule allows for 
exceptions for the recommended plan to maximize net public benefits; 
however, such exceptions must be approved by ASA(CW). This proposed 
policy underscores the importance of the PR&G approach to put forth the 
recommended plan that maximizes net public benefits.

D. Expected Benefits and Costs of Proposed Rule

    Overall, this proposed rule provides greater flexibility to the 
Federal government and non-Federal interests to consider a wider range 
of benefits, improve the effectiveness of Federal and local investments 
in Civil Works projects, and provide water resource projects that 
better serve communities and the public. Informed by more detailed 
understanding of various risks, Federal, state, local and Tribal 
governments are able to apply available resources to the activities 
that are most likely to produce public benefits. A full accounting of 
benefit and costs will result in projects that increase public 
benefits. An increased focus on collaboration throughout the planning 
process ensures projects benefit from local knowledge, improves Federal 
decision-making, and promotes transparency and responsiveness. A focus 
on environmental justice ensures that Federal government resources 
benefit disadvantaged communities, including many communities that are 
overburdened by pollution and marginalized by underinvestment. The 
Corps has 11 covered programs \51\ under the Justice40 Initiative \52\ 
which would apply the ASPs as described in this proposed rule. Use of 
an ecosystem services approach allows the planning process to better 
anticipate and account for the effects of a Federal investment.
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    \51\ See https://www.whitehouse.gov/wp-content/uploads/2023/11/Justice40-Initiative-Covered-Programs-List_v2.0_11.23_FINAL.pdf, 
last accessed January 31, 2024.
    \52\ See https://www.whitehouse.gov/environmentaljustice/justice40/, last accessed January 31, 2024.
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    As the Corps starts implementing this new approach, evaluation and 
decision-making methods tools and processes will need to be developed, 
resulting in increased costs in time and effort to all parties. More 
resources will likely be directed to the evaluation of social, 
environmental, and non-traditional economic benefits and costs; 
engagement with other governmental and non-governmental partners; and 
assessing and communicating risks and uncertainties to the public (see 
Preamble discussion at section 234.7(d)). Civil Works planning is 
committed to ensuring development of an adequate study scope and 
documentation and establishing a realistic schedule and budget early in 
the study process and ensuring adequate leveraging of data, models, 
methods and information from Tribal, State, local, and non-governmental 
resources to assist in development.
    This proposed rule will mostly affect the Investigations 
appropriations account of the Corps, which the Congress uses to provide 
funding for feasibility studies for potential new Civil Works projects, 
major rehabilitation studies, and general re-evaluation and review 
studies. The ASPs will also affect the Continuing Authorities program 
funded out of the Construction appropriations account, and Section 216 
and reallocation studies funded out the Operations and Maintenance 
appropriations account. We anticipate the costs to the Federal 
government to implement the proposed rule to remain roughly the same as 
under the current planning process as the ASPs change only the process 
to select the recommended project alternative rather than Congressional 
appropriation process. The estimated value added to these projects as a 
result of the application of the ASPs would exceed any estimated added 
costs. The change to the Corps' internal process results in a shift in 
focus from strictly an economic evaluation to one evaluating economic, 
environmental, and social considerations. This would require additional 
tools and methods as described in the proposed rule preamble which are 
existing or in development or

[[Page 12095]]

would evolve as science and analytical studies improve over time. The 
Corps uses tools and methods for the current approach and it would be a 
matter of adding tools and methods to the current approach to include 
social and environmental considerations. This new process will require 
additional trainings and development of tools and methods not currently 
available which may result in some minor additional costs to the Corps 
but those initial costs would be outweighed by long-term benefits of 
the Corps' implementation of the ASPs and efficiencies gained by the 
use of new tools and methods. The costs to the public would be the same 
as under the current planning process. The Corps' planning process and 
Civil Works programs and projects which fall under the proposed ASPs 
are not mandatory or obligatory requirements on the public but rather 
are initiated and voluntarily entered into by the non-federal interest 
and the Corps pursuant to congressional authorization. See the Corps' 
Regulatory Impact Analysis for further discussion on the benefits and 
costs of the proposed rule.

E. Procedural Requirements

    a. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review. Executive 
Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive 
Order 14094 (88 FR 21879, April 11, 2023), defines a ``significant 
regulatory action'' as one that is likely to result in a rule that may:
    (1) have an annual effect on the economy of $200 million or more 
(adjusted every 3 years by the Administrator of the Office of 
Information and Regulatory Affairs for changes in gross domestic 
product); 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, local, territorial, or tribal 
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 legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in this Executive order, as specifically authorized in a timely 
manner by the Administrator of OIRA in each case.
    This proposed rule has been found to be a significant regulatory 
action and has therefore been submitted to the Office of Management and 
Budget (OMB) for review.
    This rule establishing the Corps' ASPs to implement the PR&G does 
not by itself impose costs or benefits. Potential costs and benefits 
would only be incurred as a result of actions taken under existing 
Corps programs relying on these procedures. The Corps does not initiate 
any actions that may be undertaken under the proposed rule on their own 
but rather in response to engagements by a non-Federal interest or at 
Congressional direction. See Section D of the Preamble for a discussion 
on expected costs and benefits of the proposed rule. Primarily, these 
costs would be incurred by the Corps and the non-Federal interest. 
Benefits would be incurred by the communities and ecosystems where the 
Corps projects occur. See the Corps' Regulatory Impact Analysis for 
further discussion on costs and benefits of the proposed rule.
    b. 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. The Corps has 
preliminarily determined that this proposed regulation, if finalized, 
would not significantly affect the quality of the human environment. 
The rule establishes the procedure the Corps will consider in 
evaluating investments in projects, programs, and plans. The Corps will 
conduct an action-specific NEPA analysis before undertaking any 
activities that could potentially affect the quality of the human 
environment and will integrate the NEPA process with the procedure laid 
out in this rule. A. 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 the 
regulation will be reviewed in consideration of the comments received.
    c. Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The 
Unfunded Mandates Reform Act does not apply to this proposed rule 
because this rule provides policy for Corps planning processes 
authorized through congressional action. The Corps has also found, 
under section 203 of the Act, that small governments, as defined under 
the Regulatory Flexibility Act analysis, will not be significantly and 
uniquely affected by this rulemaking. Although small governments may be 
non-Federal interests for a Corps project and therefore be involved in 
the proposed ASPs, there are other forms of non-Federal interests and 
other entities engaged in the process so small governments are not 
uniquely affected. The action imposes no enforceable duty on any 
Tribal, state, or local governments, or the private sector.
    d. Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). 
This proposed rule does not impose any information collection 
requirements for which OMB approval under the PRA is required. However, 
this action may change terms and concepts used by the Corps to 
implement certain programs. The Corps does not believe any of their 
existing information collection instruments would need revision at this 
time.
    e. 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.
    The Army did engage in early outreach with state and local 
governments, or their representative national organizations, prior to 
proposing this regulation as a matter of policy (see 87 FR 33756, 
Notice of Virtual Public and Tribal Meetings Regarding the 
Modernization of Army Civil Works Policy Priorities; Establishment of a 
Public Docket; Request for Input). Twelve intergovernmental 
organizations attended the early engagement virtual sessions to provide 
oral comments or provided written comments to the docket, as well as 
three associations representing state and local governments. Their 
comments included support for moving to a fuller consideration of 
project benefits than just economics and on robust collaboration with 
state and locals including use of local and regional information in the 
planning process. The ASPs reflect these themes. The Army will continue 
to engage with state and local governments during the public comment 
period through virtual meetings.
    f. 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

[[Page 12096]]

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 the Small Business Administration 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 not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    This rule does not ``subject'' any entities of any size to any 
specific regulatory burden. The scope and content of the proposed rule 
is informed by the PR&G and would not be readily informed by an RFA 
analysis. See, e.g., Cement Kiln Recycling Coal. v. EPA, 255 F.3d 869 
(D.C. Cir. 2001) (``[T]o require an agency to assess the impact on all 
of the nation's small businesses possibly affected by a rule would be 
to convert every rulemaking process into a massive exercise in economic 
modeling, an approach we have already rejected.''); Michigan v. EPA, 
213 F.3d 663, 688-89 (D.C. Cir. 2000) (holding that the RFA imposes 
``no obligation to conduct a small entity impact analysis of effects'' 
on entities which it regulates only ``indirectly''); Am. Trucking Ass'n 
v. EPA, 175 F.3d 1027, 1045 (D.C. Cir. 1999) (``[A]n agency may justify 
its certification under the RFA upon the ``factual basis'' that the 
rule does not directly regulate any small entities.''); Mid-Tex Elec. 
Co-op, Inc. v. FERC, 773 F.2d 327, 343 (D.C. Cir. 1985) (``Congress did 
not intend to require that every agency consider every indirect effect 
that any regulation might have on small businesses in any stratum of 
the national economy.'').
    Under the RFA, the impact of concern is any significant adverse 
economic impact on small entities, because the primary purpose of the 
initial regulatory flexibility analysis is to identify and address 
regulatory alternatives ``which minimize any significant economic 
impact of the proposed rule on small entities.'' 5 U.S.C. 603. In this 
case, the Army certifies that this proposed regulation does not have a 
significant effect on a substantial number of small entities. The 
proposed regulation merely provides ASPs for the Corps' planning 
processes implementing the PR&G. Although small entities might benefit 
from such Corps water resources development projects--just as large 
entities and private individuals might--the agency procedures under the 
proposed regulation does not place any burden on small entities nor 
does it entail direct involvement by such entities except for those 
that may be non-federal interests for Corps projects. Nevertheless, the 
Army recognizes that the Corps' implementation of the PR&G may be of 
great national interest, including within the small business and small 
entity community. The Army commits to meeting with small entities 
during the public comment period to hear their thoughts on the proposed 
rule.
    h. 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. The 
Executive Order also states the Federal government may not issue a 
regulation that 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 agencies 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 regulation does not impose significant compliance 
costs on any Tribal Nation or otherwise have substantial direct effects 
on the same. The regulation merely provides agency procedures specific 
to the Corps to implement the PR&G. Whether the Corps initiates a water 
resources development project for Federal investment depends on if it 
is authorized by Congress. The Army believes that the regulation itself 
does not directly result in a substantial, direct effect on the 
relationship between the Army and Tribal Nations but does recognize 
that implementation of the ASPs at a project, program, or plan level 
may result in improved engagement and collaboration, and appropriate 
solutions to water resources problems in partnership with Tribal 
Nations. The Army initiatives to comply with the Executive Order 
includes: (1) initiating government-to-government consultation on the 
Federal Register notice to Modernize Civil Works (87 FR 33756) to 
permit meaningful, early, and robust engagement in development of this 
proposed rule; (2) conducting a virtual meeting on this effort with 
Tribal Nations held on July 21, 2022; (3) responding to all requests 
for one-on-one consultation and meeting with three Tribal Nations at a 
leader-to-leader level and one Tribal Nation at a staff-level. All 
letters received by the Army as part of Tribal consultation may be 
found in the docket for the Modernize Civil Works effort 
(www.regulations.gov at Docket ID No. COE-2022-0006).
    The Army has also initiated government-to-government consultation 
on this proposed rule action through a specific Dear Tribal Leaders 
letter sent to Tribal leaders. Tribal Nations may also submit written 
comments to the docket for this proposed rule. In addition, the Corps 
would engage in government-to-government consultation on a specific 
Federal action per the existing USACE Tribal Consultation Policy. The 
Corps' provision of water resources development projects and services 
does not affect the distribution of power or responsibilities between 
the Federal government and Tribal Nations. This proposed rule will 
neither impose substantial direct compliance costs on federally 
recognized Tribal governments, nor preempt Tribal law.
    i. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks. The Army interprets Executive Order 
13045 as applying only to those regulatory actions that concern 
environmental health or safety risks that the agencies have reason to 
believe may disproportionately affect children, per the definition of 
``covered regulatory action'' in section 2-202 of the Executive Order. 
This action is not subject to Executive Order 13045 because it does not 
concern an environmental health risk or safety risk.
    j. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use. This action 
is not a ``significant energy action'' because it is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy.

[[Page 12097]]

    k. National Technology Transfer and Advancement Act. This 
rulemaking does not involve technical standards, and as such, does not 
trigger requirements under the National Technology Transfer and 
Advancement Act.
    l. Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All; Executive Order 12898: Federal Actions 
to Address Environmental Justice in Minority Populations and Low-Income 
Populations. The Army believes that this action does not have 
disproportionate and adverse human health or environmental effects on 
communities with environmental justice concerns, as specified in 
Executive Order 14096 (88 FR 80 (Apr. 26, 2023); see also Executive 
Order 12898 (59 FR 7629, February 16, 1994)).
    The Army recognizes that the burdens of environmental pollution and 
climate change often fall disproportionately on communities with 
environmental justice concerns. Climate change will exacerbate the 
existing risks faced by communities with environmental justice 
concerns. The proposed ASPs further the goals of E.O. 14096 by 
incorporating environmental justice and social goals into the Corps' 
planning processes, in addition to environmental and economic goals, as 
opposed to solely relying on economic justification.
    For this rule, consistent with Executive Order 12898 and Executive 
Order 14096, the Army considered whether the change in benefits due to 
this rule may be differentially distributed among communities with 
environmental justice concerns in the affected areas when compared to 
both baselines. This proposed rule action establishes a process for 
Corps identification of a final array of alternatives for water 
resources development project investments and to inform the recommended 
plan. The proposed rule would not directly result or contribute to 
benefits to any particular communities as such projects must be 
congressionally authorized and appropriated. However, the consideration 
of social, environmental, and economic goals out of necessity 
incorporates environmental justice considerations into those 
alternatives and recommendation as the final recommendation must be the 
one that maximizes net public benefits. The impacts of the changes to 
the Corps processes proposed in this rule would be beneficial to 
communities with environmental justice concerns because it ensures 
environmental justice considerations are brought forth and considered 
in the Corps' processes.

List of Subjects in 33 CFR Part 234

    Administrative practice and procedure, Intergovernmental relations, 
Technical assistance, Water resources.


    Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).


0
Accordingly, the Corps proposes to add part 234 to title 33 of the Code 
of Federal Regulations as follows:

PART 234--CORPS OF ENGINEERS AGENCY SPECIFIC PROCEDURES TO 
IMPLEMENT THE PRINCIPLES, REQUIREMENTS AND GUIDELINES FOR FEDERAL 
INVESTMENTS IN WATER RESOURCES

Sec.
234.1 General.
234.2 Definitions.
234.3 Exceptions.
234.4 Objectives and applicability.
234.5 Level of analysis.
234.6 The planning process.
234.7 Evaluation framework.
234.8 Final array of alternatives.
234.9 Evaluate effects of alternatives.
234.10 Compare alternatives.
234.11 Select the recommended plan.

    Authority:  33 U.S.C. 701n.


Sec.  234.1   General.

    (a) This part prescribes the Agency Specific Procedures (ASPs) for 
the United States Army Corps of Engineers (Corps) to execute its Civil 
Works mission, in accordance with the Water Resources Principles and 
Guidelines defined in Section 2031 of the Water Resources and 
Development Act (WRDA) of 2007 (Pub. L. 110-114; 42 U.S.C. 1962-3), the 
Principles, Requirements and Guidelines (PR&G) issued by the Water 
Resources Council,\53\ and as called for in Section 110 of WRDA 2020 
(Division AA of Pub. L. 116-260).
---------------------------------------------------------------------------

    \53\ https://obamawhitehouse.archives.gov/administration/eop/ceq/initiatives/PandG, last accessed January 31, 2024.
---------------------------------------------------------------------------

    (b) Section 2031 of the WRDA of 2007 (Pub. L. 110-114) directed the 
Secretary of the Army to revise the March 10, 1983, Economic and 
Environmental Principles and Guidelines for Water and Related Land 
Resources Implementation Studies \54\ (P&G) for Corps use and to 
address the following considerations: advancements in economic and 
analytic techniques; public safety; low-income communities; 
nonstructural approaches; interaction with other water resources 
projects and programs; integrated and adaptive management; and, use of 
public benefits to justify projects. The WRDA provision also provided 
that the Federal Objective is to reflect national priorities, encourage 
economic development, and protect the environment by seeking to 
maximize sustainable economic development, avoid the unwise use of 
floodplains, and protect and restore natural ecosystems.
---------------------------------------------------------------------------

    \54\ https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf, last accessed January 31, 2024.
---------------------------------------------------------------------------

    (c) The PR&G was issued as an interagency effort to modernize the 
P&G. The PR&G is comprised of the Principles and Requirements (P&R) 
\55\ issued in March 2013 and the Interagency Guidelines (IG) \56\ 
issued in December 2014. The PR&G emphasizes that water resources 
projects should strive to meet the Federal Objective and maximize 
public benefits relative to public costs. The PR&G is designed to 
support water infrastructure projects with the greatest public benefits 
(economic, environmental, and social benefits) relative to costs.
---------------------------------------------------------------------------

    \55\ https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf, last accessed 
January 31, 2024.
    \56\ https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf, last accessed January 
31, 2024.
---------------------------------------------------------------------------

    (d) Congress directed the Secretary of the Army to issue ASPs to 
implement the PR&G in Section 110 of WRDA 2020 (Division AA of Pub. L. 
116-260).


Sec.  234.2   Definitions.

    (a) Acceptability. The viability and appropriateness of an 
alternative from the perspective of the Nation's general public and 
consistency with existing Federal laws, authorities, and public 
policies. It does not include local or regional preferences for 
solutions or political expediency.
    (b) Adaptive management. A deliberate, iterative, and scientific 
based process of designing, implementing, monitoring, and adjusting an 
action, measure, or project to address changing circumstances and 
outcomes, reduce uncertainty, and maximize one or more goals over time.
    (c) Completeness. The extent to which an alternative provides and 
accounts for all features, investments, and/or other actions necessary 
to realize the planned effects, including any necessary actions by 
others. It does not necessarily mean that alternative actions need to 
be large in scope or scale.
    (d) Effectiveness. The extent to which an alternative alleviates 
the specified problems and achieves the specified opportunities.
    (e) Efficiency. The extent to which an alternative alleviates the 
specified problems and realizes the specified opportunities at the 
least cost.

[[Page 12098]]

    (f) Federal investment. Investments made by the Corps related to 
water resources development projects, including flood and storm risk 
management, ecosystem restoration, land management activities, 
navigation, recreation, and hydropower.
    (g) Federal objective. The fundamental goal of Federal investments 
in water resources. Federal water resources investments shall reflect 
national priorities, encourage economic development, and protect the 
environment. Federal investments should strive to maximize net public 
benefits.
    (h) Indigenous Knowledge. A body of observations, oral and written 
knowledge, innovations, practices, and beliefs developed by Tribes and 
Indigenous Peoples through interaction and experience with the 
environment. It is applied to phenomena across biological, physical, 
social, cultural, and spiritual systems. Indigenous Knowledge can be 
developed over millennia, continues to develop, and includes 
understanding based on evidence acquired through direct contact with 
the environment and long-term experiences, as well as extensive 
observations, lessons, and skills passed from generation to generation.
    (i) Nature-based alternatives. An alternative comprised of actions 
to protect, sustainably manage, or restore natural or modified 
ecosystems to address societal challenges, while simultaneously 
providing benefits for people and the environment.
    (j) Non-federal interest. (1) a legally constituted public body 
(including an Indian tribe and a tribal organization (as those terms 
are defined in section 5304 of title 25); or (2) a nonprofit entity 
with the consent of the affected local government, that has full 
authority and capability to perform the terms of its agreement and to 
pay damages, if necessary, in the event of failure to perform.
    (k) Nonstructural alternative. An alternative comprised of a 
nonstructural approach or combination of nonstructural approaches that 
addresses the water resources problem.
    (l) Nonstructural approach. An approach that alters the use of 
existing infrastructure or human activities to generally avoid or 
minimize adverse changes to existing hydrologic, geomorphic, and 
ecological processes. This may include measures such as certain forms 
of nature-based solutions; modified floodplain practices; policy 
modifications; vessel speed limits; traffic management and tidal 
navigation restrictions; the reoperation of dams and reservoirs to 
restore or better mimic natural hydrology and flow patterns; invasive 
plant removal; signage to limit public access at an aquatic ecosystem 
restoration site; setbacks; elevations; relocation; and buyout/
acquisition including the acquisition of flowage easements; dry flood 
proofing and wet flood proofing; providing flood insurance; 
establishing building codes for new construction; other local 
floodplain management practices; installing early warning systems; and 
developing emergency evacuation plans.
    (m) Public benefits. Encompasses economic, environmental, and 
social impacts, and includes those that can be quantified in monetary 
terms, as well as those that can be quantified or described 
qualitatively.
    (n) Regulatory. Generally, those activities subject to legal 
restrictions promulgated by the Federal government.
    (o) Resilience. The capacity of an ecosystem or community to 
respond to changes, including climate changes.
    (p) Sustainable. The creation and maintenance of conditions under 
which humans and nature can coexist in the present and into future.
    (q) 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.
    (r) Unwise use of floodplains. Any action or change that diminishes 
public health and safety, or an action that is incompatible with or 
adversely impacts one or more floodplain functions that leads to a 
floodplain that is no longer self-sustaining or degrades ecosystem 
services.
    (s) Watershed. A land area that drains to a common waterbody.


Sec.  234.3   Exceptions.

    Exceptions to any requirements or policy contained in this part may 
be requested by the Corps or the non-Federal interest or responsible 
Tribal, State, or local government. Exceptions must be requested in 
writing and will be reviewed for a decision by the Assistant Secretary 
of the Army for Civil Works.


Sec.  234.4   Objectives and applicability.

    (a) Introduction. The goal of Department of the Army's ASPs is to 
ensure that Army Civil Works consistently applies a common framework 
for analyzing a diverse range of water resources development projects, 
programs, activities, and related actions involving Federal 
investments. The ASPs will advance transparency and consistency of the 
Corps' Federal investments in water resources. The intention of the 
ASPs is to outline the steps to apply the PR&G to Corps water resource 
investments, including a determination of the applicability of PR&G in 
the context of the Corps' missions and authorities, to provide a common 
framework for evaluation of investment alternatives, and to ensure that 
the Corps adequately addresses the Guiding Principles identified in 
P&R.
    (b) Objectives for Federal water resources investments. Section 
2031 of WRDA 2007 (Pub. L. 110-114; 42 U.S.C. 1962-3) specifies that 
Federal water resources investments shall reflect national priorities, 
encourage economic development, and protect the environment. The Corps 
shall accomplish this Federal objective of water resources planning 
policy by:
    (1) seeking to maximize sustainable economic development;
    (2) seeking to avoid the unwise use of floodplains and flood-prone 
areas and minimizing adverse impacts and vulnerabilities in any case in 
which a floodplain or flood-prone area must be used; and,
    (3) protecting and restoring the functions of natural systems and 
mitigating any unavoidable damage to natural systems.
    (c) Net public benefits. The Corps shall strive to maximize net 
public benefits to society. Public benefits encompass economic, 
environmental, and social goals, include monetized and un-monetized 
effects, and allow for the consideration of both quantified and 
unquantified effects. The Corps shall take a comprehensive view in 
evaluating net public benefits.
    (d) Applicability.
    (1) The objectives in paragraph (b) of this section shall be 
embodied in all new Army Civil Works' water resources investments, 
which include both structural and nonstructural approaches to water 
resources problems. The PR&G analysis under the Corps' ASPs described 
in this regulation is generally required for feasibility studies, 
General Re-evaluation reports, Major Rehabilitation reports, Continuing 
Authorities Programs, significant changes to operations through re-
allocation studies or Section 216 of the Flood Control Act of 1970 
(Pub. L. 91-611), and any other project or program not otherwise 
excluded under paragraph (2) of this paragraph.
    (2) Excluded activities. The PR&G is not intended to apply to all 
Federal actions. The following types of Federal investments are 
identified as excluded from the requirements of this regulation:

[[Page 12099]]

    (i) Regulatory actions, such as the issuance of permits associated 
with Section 404 of the Clean Water Act (33 U.S.C. 1344).
    (ii) Real estate actions.
    (iii) Planning Assistance to States program.
    (iv) Flood Plain Management Services program.
    (v) Section 14 of Rivers and Harbors Act of 1899 (33 U.S.C. 408) 
program.
    (vi) Public Law 84-99 program.
    (vii) Water Infrastructure Finance and Innovation Act Program.
    (viii) Environmental Infrastructure projects.
    (ix) Land management plans.
    (x) Operations and maintenance activities that are carried out in a 
manner consistent with the existing approved operations and maintenance 
manual or plan for an authorized project. This does not include 
significantly changed O&M plans or those changed to meet new goals 
which may require a new analysis under this regulation and potentially 
authorization.
    (xi) International and Interagency Support and Support for Others 
actions.
    (xii) Research or monitoring activities.
    (xiii) Emergency actions.
    (xiv) Projects, programs, or plans that meet the threshold criteria 
for exclusion or that fall below the thresholds identified in Table 1. 
These excluded actions generally occur when investments are routine and 
have inconsequential effects on water resources.
    (xv) Additional programs, plans, or projects which the Assistant 
Secretary of the Army for Civil Works has determined do not require 
analysis pursuant to section 3 of this regulation.


Sec.  234.5   Level of analysis.

    (a) Standard and scaled levels of analysis. Once a determination 
has been made that PR&G does apply, the level of analysis shall be 
determined. The level of PR&G analysis required will vary in scope and 
magnitude across programs and activities. There are two levels of 
analysis: ``standard'' and ``scaled''. In general, the level of 
analysis should be commensurate with the significance of the Federal 
investment in terms of dollar value and the potential environmental 
impacts. While there is not a clear distinction between the different 
levels of analysis, the two types of analysis can generally be 
distinguished in several ways:
    (1) A standard analysis seeks to evaluate all the relevant benefits 
and costs associated with the project or activity using original or 
secondary data. This type of analysis is typically used for new or 
significantly modified actions. The Corps would conduct a benefit-cost 
analysis of programs and activities that have some effect on the 
environment. For projects/activities that fall into the category of 
``standard analysis,'' the analysis should make significantly greater 
efforts to quantify and monetize impacts. The extent to which effects 
can and should be monetized should be made on a resource-by-resource 
basis and considering the estimated present value cost of the project/
activity and the significance of the effects.
    (2) A scaled analysis is an analysis that is more limited in scope 
for projects, programs, or plans that have low risk/low cost, or have 
minimal consequences of failure, posing minimal threats to human life 
or safety, or do not result in significant impacts to the environment. 
A scaled analysis may rely on benefits function transfer methods and 
readily available secondary data sources. Benefits function transfer 
methods are used to estimate monetary values by transferring available 
information about relationships from studies already completed to 
another location, context, or issue. Best practices would be applied 
when using this approach to avoid common pitfalls.
    (b) Determining the appropriate level of analysis. In many cases, 
professional judgment and available resources will be important factors 
in determining the appropriate level of analysis. The Corps will ensure 
that cumulative effects of many small, routine actions would not in 
itself elevate those investments to a scaled or standard analysis. Many 
of those small, routine actions would be excluded from PR&G analysis.
    (c) Scope and magnitude of analysis required. The threshold 
criteria for project, programmatic, and individual plan level analysis 
for Army Civil Works is shown in Table 1. These thresholds represent 
guidelines for the level of analysis that is likely to be most 
appropriate for an activity, given the level of investment in, 
appropriations for, or cost of that activity. In determining whether a 
given activity or project falls under or exceeds the financial 
thresholds, it is the level of present value of Federal investment that 
is the relevant criterion to use. However, for a particular activity, a 
different level of analysis may be more appropriate, and projects/
programs may depart from these guidelines where such a departure is 
justified. In general, a scoping effort should be undertaken to 
evaluate the level of effort needed to analyze the full range of 
potential effects. Project-level analysis should generally be used for 
water resources investments when the Corps has discretion in site-
specific investment decisions. A programmatic-level analysis generally 
has a broader scale and/or scope than a project-level analysis. 
Programmatic-level analysis generally relates to funding programs or 
where a proposal for a set of similar actions analyzed under one 
decision document may occur.
---------------------------------------------------------------------------

    \57\ The Corps may choose to analyze the effects of a federal 
investment at a higher level of detail than called for by Table 1. 
For example, if the Corps considers an investment to be high risk, 
it could undertake a scaled analysis for that investment which might 
otherwise be excluded from the PR&G analysis.
    \58\ The financial threshold amounts will be indexed to 
inflation to stay relevant.
    \59\ Operations and Maintenance (O&M) activities that are 
included in the original project authorizations do not require 
separate analysis if the activity is carried out in a manner that is 
consistent with that authorization. Significantly changed O&M plans 
or those changed to meet new goals may require a new analysis and 
potentially authorization.

                                 Table 1 \57\--Monetary Threshold Criteria \58\
----------------------------------------------------------------------------------------------------------------
                                                                    Annual
                                                    Federal     appropriations
                Type of activity                   investment       or plan             Level of analysis
                                                      ($M)        development
                                                                  costs ($M)
----------------------------------------------------------------------------------------------------------------
Projects: All new or existing Federal                     >20  ................  Standard analysis.
 investments, such as infrastructure, ecosystem         10-20  ................  Scaled analysis.
 restoration, new construction, modifications or          <10  ................  Excluded.
 replacements to existing facilities, and
 operations and maintenance \59\.
Programs........................................  ...........              >100  Standard analysis.
                                                  ...........            50-100  Scaled analysis.

[[Page 12100]]

 
                                                  ...........               <50  Excluded.
Individual Plans: Management plans, such as       ...........               >50  Standard analysis.
 watershed, master, etc.                          ...........             10-50  Scaled analysis.
                                                  ...........               <10  Excluded.
----------------------------------------------------------------------------------------------------------------

Sec.  234.6   The planning process.

    (a) Introduction. The following planning process will be used to 
implement the common framework summarized in the Interagency Guidelines 
for analyzing Federal investments in applicable water resources.\60\ 
The planning process will ensure that plan formulation, evaluation, and 
implementation of agency projects and programs reflect the Guiding 
Principles identified in the P&R: healthy and resilient ecosystems, 
sustainable economic development, floodplains, public safety, 
environmental justice, and a watershed approach. The planning process 
consists of a series of steps that identifies or responds to problems 
and opportunities, as well as specific Tribal, state, and local 
concerns, and, in most cases, culminates in a recommended plan. The 
process involves an orderly and systematic approach to making 
determinations and decisions at each step so that the interested public 
and decision-makers in the planning organization can be fully aware of 
the following: the basic assumptions employed; the data and information 
analyzed; the areas of risk and uncertainty; the reasons and rationales 
used; and the significant implications of each alternative. The 
planning process is iterative to adapt to new information and 
understanding. The result of the planning process is investment advice. 
The advice may be a recommended plan or plans that seek to maximize net 
public benefits in addressing the identified water resources problem 
and a description of the analysis of the benefits and costs of that and 
other potential plans.
---------------------------------------------------------------------------

    \60\ https://obamawhitehouse.archives.gov/administration/eop/ceq/initiatives/PandG, last accessed January 31, 2024.
---------------------------------------------------------------------------

    (b) National Environmental Policy Act. Where Federal investments in 
water resources require analysis under NEPA and this regulation, Army 
Civil Works should integrate, to the extent possible, the analysis in 
this regulation into existing planning processes, and may integrate 
this regulation and NEPA analyses in a single analytical document that 
reflects both processes. Army Civil Works shall seek opportunities to 
integrate other required Federal and state environmental reviews with 
their combined analyses.
    (c) Guiding principles. The Guiding Principles provide the 
overarching concepts that the Corps seeks to promote through 
investments in water resources.
    (1) Environmental justice. Environmental justice refers to the just 
treatment and meaningful involvement of all people regardless of 
income, race, color, national origin, Tribal affiliation, or 
disability, in agency decision-making and other Federal activities that 
affect human health and the environment so that people:
    (i) are fully protected from disproportionate and adverse human 
health and environmental effects (including risks) and hazards, 
including those related to climate change, the cumulative impacts of 
environmental and other burdens, and the legacy of racism or other 
structural or systemic barriers; and
    (ii) have equitable access to a healthy, sustainable, and resilient 
environment in which to live, play, work, learn, grow, worship, and 
engage in cultural and subsistence practices. Environmental justice 
shall be considered throughout the Civil Works program and in all 
phases of project planning and decision-making. Army Civil Works 
projects and programs shall advance equity by meeting the needs of 
communities, such as by reducing disparate environmental burdens, 
removing barriers to participation in decision-making, and increasing 
access to benefits provided by Civil Works programs, including for 
disadvantaged communities. The planning process shall put these 
communities at the front and center of studies, providing robust 
opportunities for effective participation in the planning and decision-
making processes. Any disproportionate adverse public safety, human 
health, or environmental burdens of project alternatives on communities 
with environmental justice concerns shall be avoided, minimized, or 
mitigated to the greatest extent reasonable. The Corps shall ensure 
that communities with environmental justice concerns have meaningful 
opportunities to identify potential alternatives, effects and 
mitigation measures. The Corps shall also be transparent in fully 
displaying the potential effects of alternative actions on communities 
with environmental justice concerns.
    (2) Floodplains. All future Federal investments in and affecting 
floodplains must meet some level of floodplain resilience. Alternatives 
affecting floodplains should aim to improve floodplain resilience if 
possible and also should avoid the unwise use of floodplains and/or 
flood-prone areas. If the areas cannot be avoided, then the alternative 
must minimize adverse impacts to these areas and mitigate unavoidable 
impacts using nature-based approaches where possible. The Corps shall 
identify and communicate potential adverse effects on floodplain 
functions for the various alternatives under consideration. Where the 
Corps proposes to construct a project feature in a floodplain because 
that is the best way to serve a public purpose such as flood risk 
reduction, that proposed Corps project is not automatically considered 
an unwise use of the floodplains. The Corps shall strive to sustain the 
floodplains natural and beneficial functions to the maximum extent 
practicable given the project's purpose and need.
    (3) Healthy and resilient ecosystems. Alternatives shall protect 
the existing functions of ecosystems and may restore the health of 
damaged ecosystems to a less degraded and more natural state where 
feasible, and in accordance with current study and cost sharing 
authorities. When adverse environmental impacts cannot be completely 
avoided, alternatives shall strive to minimize environmental impacts. 
When a particular alternative will cause unavoidable damage to the 
environment, mitigation to offset

[[Page 12101]]

damages shall be incorporated into that alternative and evaluated as 
part of that alternative. In developing alternatives, consideration 
shall be given to ecosystem resilience, including acknowledging the 
value of ecosystem services to people. When evaluating alternatives, 
the health of the affected ecosystem shall be measured in its current 
condition as the baseline and projected under the alternatives being 
considered, including the No Action alternative.
    (4) Public safety. Alternative solutions shall strive to avoid, 
reduce, or mitigate significant risks to public safety, including both 
loss of life and injury, and shall include measures to manage and 
communicate the residual risks. The impact and reliability of 
alternatives on significant risks to public safety must be evaluated 
for both existing and future conditions, considered in decision-making, 
and documented.
    (5) Sustainable economic development. The Corps' investments in 
water resources shall encourage sustainable economic development. This 
is accomplished through the sustainable use and management of water 
resources ensuring overall water resources resilience. Sustainable 
economic development creates and maintains conditions under which 
humans and nature can coexist. Analysis under sustainable economic 
development shall present, where feasible, information about the 
environmental resources in the project area or the area where 
activities are occurring, and how the resources and their value might 
be expected to change over time. Physical capital information may also 
be included where relevant. Analysis shall also include information on 
socio-economic conditions under current and projected conditions. 
Economic, social, and environmental effects and benefits shall be 
incorporated into the analysis of alternatives.
    (6) Watershed approach. When developing alternatives, the water 
resources problem being addressed should be analyzed on a watershed-
based level to facilitate inclusion of a complete range of solutions, 
after considering the breadth of impacts across the watershed. A key 
aspect of the watershed approach is the analysis of information 
regarding watershed conditions and needs, allowing for consideration of 
upstream and downstream conditions and needs, consideration of other 
projects and actions in place, underway or planned by other agencies 
within the watershed, and more thoroughly addressing the potential 
impacts of a proposed action. The scale of the watershed used to 
develop alternatives can vary. The appropriately sized watershed for 
the particular need being addressed shall be a case-specific 
determination based on the relevant facts and circumstances. The 
watershed scale used to develop alternatives should encompass a 
geographical area large enough to ensure plans address cause and effect 
relationships among affected resources and activities, both upstream 
and downstream and cumulative in nature that are important to gaining 
public benefits or avoiding harms from the project. The watershed 
approach ensures that the interconnectedness of systems is evaluated to 
fully understand the root causes and symptoms of the water resources 
problem and the full range of potential public benefits. Communication 
with other agencies or Tribal, territorial, state and local government 
partners working in the watershed starting in the scoping phase could 
help realize a watershed approach. In addition, other potential 
investments in the watershed shall also be accounted for under the 
watershed approach.
    (d) Collaboration.
    (1) The planning process will seek to achieve full collaboration 
with a wide range of affected Tribes, governmental and non-governmental 
stakeholders, communities with environmental justice concerns, and the 
public in all stages of the planning process. Collaboration with 
Tribes, governmental and non-governmental stakeholders, communities 
with environmental justice concerns and the general public throughout 
the planning process allows consideration of multiple perspectives and 
information sources (e.g., Indigenous Knowledge) and shall be 
emphasized throughout the planning process. Collaboration with Tribes, 
communities, and local and state governments is a critical element to 
help identify specific problems, opportunities, and significant 
constraints within the study area, and help establish planning goals 
and objectives that are consistent with the objectives of this 
regulation and are locally appropriate. Starting at the earliest phase 
in the planning process, Tribes and other communities with 
environmental justice concerns shall have an opportunity to play a key 
role in identifying alternatives, enhancing the positive benefits to 
their communities from potential Federal investment and in describing 
any concerns they may have with a potential project. Such early, 
meaningful, and robust engagement will help identify and address 
problems and possible solutions and scope studies. Robust, early 
collaboration with Tribes does not negate the need for Tribal 
consultation, when appropriate.
    (2) To improve federal decision-making and to promote transparency, 
Army Civil Works shall seek to meaningfully collaborate with other 
Federal and non-Federal entities. Engagement methods and scope of 
engagement will depend on the stage of the planning process, the 
issues, and the groups that will be contributing ideas and information 
to the planning process and shall be intentionally designed using best 
practices and techniques for engagement. Engagement strategies shall 
consider Corps, Tribal, and community resource constraints. Indigenous 
Knowledge, information from Tribal Nations, local and state 
governments, non-governmental organizations and the public shall be 
incorporated into problem definition and forecasting of future 
conditions as well as the development and analysis of alternatives. 
Robust engagement and transparency throughout the planning process, 
including during the evaluation and comparison of alternatives, will 
help deliver sound investment advice for water resources solutions that 
maximize net public benefits.
    (e) Investigations and data collection. Investigations, data 
collection, and analysis should be ongoing and integrated early in the 
planning process. Investigations should be relevant to the planning 
objectives and constraints. The interdisciplinary study team should 
identify the most important areas to focus on in the study, such as: 
engineering and design; surface water and groundwater hydrology; 
hydraulics; geology; operations; water quality; land resources; power 
generation and conservation; economics; financing; environmental, 
social, and cultural impacts and mitigation; opportunities for 
recreation; cost estimation for construction, operation, maintenance, 
replacement, energy consumption; and, climate change to include 
greenhouse gas emissions. Investigation, data collection and analysis 
should leverage and incorporate information from Tribal, state, local, 
and non-governmental sources, and the public. Additional investigations 
should be performed as necessary.
    (f) Identify purpose, problems, needs, and opportunities. To 
identify purpose, problems, needs, and opportunities, the Corps shall:
    (1) Ensure that the planning goals and objectives reflect the 
direction provided in the study authority.

[[Page 12102]]

    (2) Clearly identify the purpose of the study, the role of the 
Federal government, as well as the views of the non-Federal interest 
(if any), cooperating agencies, Tribes, various stakeholders, and the 
public.
    (3) Identify the problems and opportunities to which the agency is 
responding.
    (4) Define the study area including activities within the watershed 
that are relevant to the proposed project, and areas where impacts 
should be avoided.
    (5) Describe the plans for stakeholder involvement.
    (6) Prepare a summary of the planning objectives and constraints to 
be used in the analysis of the federal investment. This summary should 
include a discussion of stakeholder, partner, and public input.
    (6) Include a discussion of the social and cultural context of the 
region and resources.
    (g) Inventory existing resources and forecast future conditions. A 
summary of the specific economic, environmental, and social setting 
within the study area shall cover the condition and functional 
relationships of affected resources; their development potential and 
possible conflicts in producing affected ecosystem services; and the 
local situation with respect to investment, climate, markets, affected 
communities, and basic economic productivity.
    (1) ``Forecast Future Conditions'' generally relates to the 
identification of impacts associated with the alternatives, including 
the No Action Alternative. Future conditions should be assessed and 
analyzed as part of the evaluation process and the best available data 
and forecast should be used to complete an analysis of these uncertain 
conditions.
    (2) This exercise of identifying existing resources and forecasting 
future conditions will quantify, to the extent practicable, relevant 
water and related resource conditions as they currently exist within 
the study area and forecast future conditions over the period of 
analysis. This would also include resources and conditions regarding 
the economic, environmental, and social aspects within the study area, 
as well as ecosystem services and climate-related scenarios. The 
existing resources and future conditions will be established using 
generally accepted sources that are national, state, or regional in 
scope, such as from peer-reviewed sources or sources which are 
government-produced.
    (3) The ``without-project condition'' is the most likely condition 
expected to exist in the future over the period of analysis in the 
absence of the Corps project, or program under consideration, given 
current laws, policies, projects under construction, and any existing 
resources/conditions. It considers expected actions that may be 
executed by others, including potential future land use conditions, and 
shall consider effects of climate change using multiple scenario 
analyses.
    (4) The ``with-project condition'' is the most likely condition 
expected to exist in the future, over the period of analysis, with a 
specific Corps project or program in place. It considers expected 
actions that may be executed by others, including potential future land 
use conditions, and shall consider effects of climate change using 
multiple scenario analyses.
    (5) To ensure that the appropriate criteria and problems are 
incorporated into the analytical framework, a summary of the process 
used to define the relevant existing conditions and foreseeable future 
conditions shall be prepared and made available to the public and 
shared with stakeholders.
    (h) Formulate alternatives. The primary goal of an alternative is 
to meet the objective of the project to solve the water resources 
challenge as authorized, consistent with the Federal objective and 
Guiding Principles. The primary function of an alternative must be to 
alleviate unsatisfactory conditions or address a problem or opportunity 
that exists or will exist in the future without the programs or 
projects under consideration. Alternatives shall address the defined 
water resources challenge or function that is the subject of the 
analysis, and achieve multiple objectives as outlined in the P&R. 
Alternative formulations should focus on solutions that are feasible 
and meet the planning objectives. Alternatives should be formulated to 
meet planning objectives based on most likely future conditions 
expected with and without implementation of an alternative. The 
viability of an alternative should be determined through an evaluation 
of its acceptability, efficiency, effectiveness, and completeness, as 
required in the PR&G. The period of analysis should be the same for 
each alternative and sufficient to encompass the lifespan and 
significant long-term impacts of the project. In addition, alternatives 
may also include actions which are beyond the missions of the Corps 
where they provide solutions to the identified problem and meet the 
goals of the PR&G. However, such alternative shall identify the 
relevant parties with requisite responsibility for those actions beyond 
Corps missions (such as other Federal agencies and non-Federal 
partners), their authority for that action, the interrelation between 
that action and the recommended Corps project, and appropriate 
sequencing of implementation. For Corps investments, the Corps will be 
the designated lead for completing PR&G analysis.
    (1) Alternatives are to be developed in a systematic manner. A 
range of potential alternatives should be initially investigated 
reflecting a range of scales and measures, and as alternatives are 
refined, some would be screened out for reasons such as having 
excessive cost or unavoidable impacts, not sufficiently addressing the 
identified problem or opportunity, or other factors. The study report 
should include some analysis of the eliminated alternatives, and 
reasons for their elimination. The plans that are retained for 
additional analysis should determine the range of reasonable 
alternatives, as required for the NEPA analysis. Section 234.8 
describes the alternatives required in the final array.
    (2) Consideration of nonstructural approaches and nature-based 
solutions that meet the planning objectives shall be an integral part 
in the development and evaluation of Federal investments in water 
resources.
    (3) Each alternative formulated for the PR&G analysis should be 
included in the NEPA document.
    (4) The economic, environmental, and social effects of a water 
resources development project are interrelated. In formulating 
alternatives to address the identified water resources problem or 
opportunity, the Corps shall consider each of these effects and 
maximize net public benefits.


Sec.  234.7   Evaluation framework.

    (a) This section describes the common framework and general 
requirements to be used by the Corps in evaluating potential 
alternatives for Federal investments for their performance with respect 
to the Guiding Principles and their contributions to the Federal 
Objective to inform the overall decision-making process. Any 
assumptions made which are used in the analysis of alternatives shall 
be described in the analysis where applicable.
    (b) Economic, environmental, and social effects.
    (1) The Corps' analytical framework for evaluating Federal 
investments should focus on the key economic, environmental, and social 
effects that are relevant to the investment decision. Typical NEPA 
analyses emphasize environmental effects and benefits, including 
ecosystem services, and these should also be used as a core part of 
water resources alternatives analysis. A benefit-cost analysis would be 
conducted for each alternative.

[[Page 12103]]

Ecosystem services are an important benefit-cost category that should 
be included in the benefit-cost analysis.
    In addition, the scale of an analysis can be adjusted to meet the 
needs of an individual project. While all analyses should share common 
elements, how these elements are achieved can depend on the needs of 
the project. For example, while it is important to estimate how values 
vary across alternatives, many different metrics and methods can be 
used; the best approach will depend on the needs and scale of the 
project.
    When implementing its ASPs, the Corps will consider and, where it 
deems appropriate, align with the latest Federal methods and guidance 
(for example, updated OMB Circulars and applicable interagency 
guidance) to ensure that the analytical framework accounts for all 
significant economic, environmental and social costs and benefits, 
including ecosystem services. Where possible, monetization enables the 
incorporation of the values placed on the benefits and costs evaluated, 
and provides a way to evaluate trade-offs in common analytical units 
(dollars). OMB Circulars A-4 and A-94 provide guidance on appropriate 
use of monetization methods. The Corps anticipates that it will not be 
possible to monetize all social and environmental costs and benefits of 
project alternatives. In these cases, the Corps should quantify the 
social and environmental costs and benefits and when neither 
monetization or quantification is possible, the Corps should 
qualitatively describe the social and environmental costs and benefits 
in sufficient detail to allow differentiation across alternatives. The 
relevant monetary, quantitative, and descriptive information will be 
considered fully in the analysis.
    (c) Best available actionable science and commensurate level of 
detail.
    (1) Analysis to support the evaluation of alternatives shall use 
the best available actionable science, to include Indigenous Knowledge, 
data, analytical techniques, procedures, models, and tools in ecology, 
hydrology, economics, engineering, biology, and other disciplines to 
the extent that sufficient funding is available and to the extent such 
information is relevant and appropriate to the subject investment. To 
the extent feasible, the effects of the alternatives should be 
monetized. Effects will be monetized, quantified or described, in that 
order.
    (2) The level of detail required to support alternative analyses 
may vary but should be sufficient to inform the decision-making process 
efficiently and effectively. The level of detail, scope, and complexity 
of analyses should be commensurate with the scale, impacts, costs, 
scientific complexities, uncertainties, risk, and other aspects (e.g., 
public concern) inherent in potential decisions.
    (d) Risk and uncertainty. When analyzing potential Federal water 
resource investments, the Corps shall identify, describe, and quantify 
(if feasible), areas of risk and uncertainty and consider them in 
decision making. Risks and uncertainties shall be identified and 
described in a manner that is clear and understandable to the public 
and decision-makers. This includes describing the nature, likelihood, 
and magnitude of risks, as well as the uncertainties associated with 
key supporting data, projections, and evaluations of competing 
alternatives. When there are considerable uncertainties concerning the 
ability of an alternative to function as desired (e.g., produce desired 
outputs and/or the general acceptability of the alternative) the option 
of pursuing improved data or models should be considered. Reducing risk 
and uncertainty may involve increased costs or loss of benefits. The 
advantages and costs of reducing risk and uncertainty should be 
explicitly considered in formulating alternatives and the overall 
decision-making process.
    (e) Adaptive management. Adaptive management measures shall be 
clearly identified and evaluated as part of alternatives to the extent 
that such measures are commensurate with the significance of the 
proposed activity and available resources. Adaptive management measures 
are particularly useful when making management choices in the face of 
uncertainty, such as when detailed information and tools are not 
readily available.
    (f) Climate change. Conditions resulting from a changing climate 
shall be identified and accounted for in all stages of the planning 
process; uncertainties associated with climate change will be 
identified and described. Analysis of climate change impacts shall 
reflect best available actionable science and will leverage region-
specific information from federal, Tribal, state, local, and non-
governmental partners. The Corps shall incorporate a climate-informed 
science approach considering impacts such as inland and coastal climate 
change impacts on flood and drought hazards using the most up-to-date 
science, policies, and tools available. The Corps shall also ensure 
climate resilience and adaptation is incorporated and considered 
throughout the planning process and across alternatives, including a 
discussion on how climate, drought, and ecosystem resilience may 
intersect for that particular action and can contribute to the economic 
vitality and water resources resilience of the Nation. The changing 
climate should inform the understanding of water resource needs and how 
those needs can potentially be addressed.
    (g) Water availability, water use, and resilience. Water 
availability and efficient use of water shall be considered in 
alternative designs, as shall resilience, when applicable to the 
project purpose. The analysis shall consider water availability, water 
use, and resilience over a range of conditions, from too little in 
drought and multiple use scenarios to too much in flood scenarios. The 
consideration of multiple uses and competing demands on water resources 
shall be taken into account when designing solutions to water resources 
problems.
    (h) Nonstructural and nature-based solutions. Nonstructural 
measures alter the use of existing infrastructure or human activities 
to generally improve or avoid or minimize adverse changes to existing 
hydrologic, geomorphic, and ecological processes. Nonstructural 
measures may be combined with fewer or smaller traditional structural 
project components to produce a complete alternative plan or may be 
used instead of a structural project. In the development of 
alternatives, the use of natural systems, ecosystem processes, and 
nature-based solutions shall be considered, where feasible and 
consistent with the purpose of the water resources study. Full 
consideration and reporting on nonstructural and nature-based 
alternative actions shall be an integral part of the evaluation of 
Federal water resource investment alternatives, and a full 
nonstructural in addition to a full nature-based alternative will be 
included in the final array of alternatives. Nonstructural and nature-
based aspects should also be included in the other alternatives in the 
final array when appropriate.
    (i) Tribal treaty rights. Alternatives for water resources 
investments must be consistent with protection of Tribal treaty rights. 
Analyses should identify Tribal treaty rights that preclude selection 
of an otherwise viable alternative.
    (j) State water law. Alternatives for water resources investments 
must be consistent with State water laws, water rights, and decrees to 
the extent these do not conflict with federal laws and regulations. 
Analyses should identify legal constraints that preclude selection of 
an otherwise viable alternative.

[[Page 12104]]

    (k) International obligations. Alternatives for water resources 
investments must be consistent with meeting treaty and other 
international obligations. Analyses should identify international 
obligations that preclude selection of an otherwise viable alternative.
    (l) Timing. The period of analysis for alternatives shall be 
documented clearly and with the appropriate justification in the 
analysis and used to evaluate each alternative.


Sec.  234.8.   Final Array of Alternatives.

    (a) The final array of alternatives shall include, at a minimum, 
the following six alternatives:
    (1) A no action alternative.
    (2) A nonstructural alternative: An alternative, if one exists, 
that can effectively address the problem through the feasible use of 
nonstructural approaches.
    (3) A nature-based solution alternative: An alternative, if one 
exists, that can effectively address the problem through the feasible 
use of nature-based solutions (including natural systems and ecosystem 
processes).
    (4) An environmentally preferred alternative.
    (5) An alternative that seeks to maximize net public benefits.
    (6) An alternative that is locally preferred. If this alternative 
differs from the net public benefits alternative, it will be required 
to have a comparable level of detail and analyzed using the same 
analytical framework as the net public benefits alternative.
    (b) The nonstructural and nature-based alternatives do not preclude 
consideration of these elements in other alternatives. Nonstructural 
measures and nature-based solutions shall be considered as components 
of the other alternatives in the final array, essentially providing an 
integrated or ``hybrid'' of gray (hard) infrastructure with these other 
measures.
    (c) The same alternative may be identified as more than one of 
these required alternatives.
    (d) Mitigation of unavoidable adverse effects associated with each 
alternative must be included in the alternative and in the analyses.
    (e) If an alternative requires changes in existing laws, 
regulations, or policies, those changes must be clearly identified and 
explained.
    (f) The discussion of the final array of alternatives should 
include the primary purpose of the analysis; the geographic size of the 
study area; the types of impacts; number of people potentially affected 
and anticipated degree of impact; environmental justice considerations; 
and the size and location of communities potentially affected including 
the presence of Federally-recognized Tribes or Tribal members; and the 
type of data and information available from Indigenous Knowledge, 
collaboration, public involvement, and previous studies.


Sec.  234.9.   Evaluate Effects of Alternatives.

    (a) Analysis of alternatives. For the final array of alternatives, 
the analysis should describe, evaluate, and estimate the key social, 
environmental and economic effects, and assess the contributions of 
each alternative to the Guiding Principles.
    (b) Evaluation procedures. In addition to assessing how 
alternatives perform with respect to the Guiding Principles, the 
evaluation procedures shall incorporate methods to evaluate:
    (1) How public benefits of an alternative compare to its costs, 
including all important social, environmental and economic benefits and 
costs.
    (2) How alternatives perform against the objectives of the study.
    (3) How alternatives perform against the four formulation criteria: 
completeness, effectiveness, efficiency, and acceptability.
    (c) Consideration of benefits and costs. The report should fully 
account for the effects to society of alternative plans and their 
respective contributions to the Federal Objective, relative to the No 
Action alternative. The analysis will evaluate the economic benefits 
and costs, environmental benefits and costs, and social benefits and 
costs of alternatives, regardless of how they are included (monetized, 
quantified or described). To the extent practicable, such costs and 
benefits must be quantified in a scientifically valid and acceptable 
way, and such quantified costs shall be monetized where 
practicable.\61\ When monetization or quantification is not possible, 
costs and benefits must be described in sufficient detail to enable the 
decision-maker to understand the importance and magnitude of potential 
changes. For monetized costs and benefits, the present value cost of 
each alternative must be compared to the present value of the benefit 
to the public for monetized costs and benefits. For quantified but not 
monetized benefits and costs, the Corps would present the information 
on an average annual basis, and would also describe how the benefits 
and costs would accrue over the period of analysis. For qualitatively 
described benefits and costs, expectations would be described across 
the period of analysis. The effects of alternative plans are displayed 
in terms of costs and benefits.
---------------------------------------------------------------------------

    \61\ The Corps shall, in part, use Office of Management and 
Budget Circulars A-4 and A-94.
---------------------------------------------------------------------------


Sec.  234.10.   Compare Alternatives.

    (a) Comparing alternatives. Alternatives shall be compared to each 
other and to the No Action alternative and shall include a comparison 
of the ability of the alternatives to perform under changing 
conditions, including climate change. The alternative (or alternatives) 
that reasonably meets the Federal objective and maximizes net public 
benefits shall be identified. In addition, alternatives may be 
evaluated with respect to other considerations, including 
distributional effects, separately. These considerations may include:
    (1) Temporal. Certain effects may occur at different points in 
time.
    (2) Spatial. Certain costs, benefits, and transfers may accrue to 
different regions. Regional-scale analyses may be useful to inform 
regional level economic development objectives.
    (3) Beneficiaries. Tribal Nations and stakeholders (including other 
governmental agencies and communities with environmental justice 
concerns) may indicate different tradeoffs among the various benefits 
and costs of a federal action. Robust engagement at this stage shall 
focus on eliciting preferences among the alternatives, their component 
elements, and their effects. When calculating net benefits, these 
distributional effects can be examined using techniques like income 
weighting.
    (b) Tradeoffs. Tradeoffs among potential alternatives will be 
assessed and described throughout the decision-making process and in a 
manner that informs decision-making. Based on the available analytical 
information, the Corps would use its professional judgment in making 
its recommendations on decisions among tradeoffs. The tradeoff displays 
shall be understandable, transparent, and constructed in a generally 
consistent fashion for all analyses. The analysis shall include a 
combination of both tables and explanatory materials to help inform a 
decision. Displays shall facilitate the evaluation and comparison of 
alternatives necessary to make the following determination and reflect 
the following:
    (1) The effectiveness of alternatives in solving the water 
resources problem and taking advantage of the opportunities identified 
in the planning process.
    (2) What must be given up in monetary and nonmonetary terms to

[[Page 12105]]

enjoy the benefits of the various alternatives, relative to the 
baseline.
    (3) The differences among alternatives.
    (c) Information for inclusion in the analysis. To promote 
consistency across the Corps, the following tables and information 
shall be included in the analysis and in the documentation prepared for 
a decision process:
    (1) Criteria. The analysis must explicitly address the extent to 
which an alternative achieves each of the following criteria: 
completeness, effectiveness, efficiency, and acceptability. This 
evaluation must be systematic and can include both quantitative and 
qualitative components.
    (2) Effects matrix. A matrix summarizing the tradeoffs, relative to 
the baseline, effect-by-effect must be included in the integrated 
report.
    (3) Additional trade-off displays. Additional text and tables 
should display other important trade-offs, e.g., trade-offs along 
temporal, spatial, and beneficiary dimensions.
    (4) Summary table. A summary table displaying the economic, 
environmental, and social costs and benefits as measured (monetized, 
quantified, quantitative) for each alternative. In addition, the 
summary table will display the economic, environmental, and social 
costs and benefits which were derived qualitatively. The summary table 
will also separately include information on level of risk or 
uncertainty for each alternative.
    (5) Achievement of objectives table. A table indicating the extent 
to which the Guiding Principles have been achieved.
    (d) Risk and uncertainty. Knowledge of risk and uncertainty and the 
degree of reliability of the estimated consequences will better inform 
decision making. Risk and uncertainty are inherent in economic analyses 
as well as the analysis of physical and biological factors, no matter 
the technique or methodology employed. Areas of risk and uncertainty 
will be described clearly, so that decisions can be made with knowledge 
of the degree of reliability of the estimated consequences and of the 
effectiveness of alternatives.


Sec.  234.11.   Select the Recommended Plan.

    (a) Recommended plan.
    (1) Plan selection will require decision-makers to assess tradeoffs 
and to consider the extent of both monetized and non-monetized effects. 
The basis for selection of the recommended plan should be fully 
reported and documented in a transparent manner, including the criteria 
and considerations used. This section must provide a discussion about 
the extent to which the alternatives achieve the Federal objective and 
maximize net public benefits to society. If the basis for selecting the 
recommended plan depends on non-monetized benefits or costs, the report 
must include an explanation of the relative importance of these 
benefits/costs and why they are not monetized. This section will 
include a summary of elicited Tribal Nation and stakeholder 
perspectives on the alternatives and their effects.
    (2) The Corps should recommend a decision to either: (1) implement 
an alternative project, program, or plan, or (2) take no Federal 
action. Federal investments should seek to meet water resource 
objectives and maximize net public benefits, relative to public costs. 
It is possible that more than one alternative might ``reasonably and 
approximately'' meet these conditions. ``Net public benefits'' implies 
that the anticipated benefits will be presented relative to the costs 
associated with the accrual of those benefits. Net public benefits can 
include both quantified and non-quantified benefits. Any recommendation 
for authorization will clearly delineate the federal water resource 
project(s) being recommended for authorization and Corps implementation 
and any condition precedent for construction, with specificity.
    (b) Exceptions. A recommended plan for a federal water resources 
investment that does not maximize net public benefits requires an 
exception from the Assistant Secretary of the Army for Civil Works. 
Requests for exception should describe the project or activity, the 
rationale for the exception, and present relevant data and analysis to 
support the request.

[FR Doc. 2024-02448 Filed 2-14-24; 8:45 am]
BILLING CODE 3720-58-P