Hurricane Protection: Statutory and Regulatory Framework for
Levee Maintenance and Emergency Response for the Lake
Pontchartrain Project (15-DEC-05, GAO-06-322T).
The greatest natural threat posed to the New Orleans area is from
hurricane-induced storm surges, waves, and rainfalls. To protect
the area from this threat, the U.S. Army Corps of Engineers
(Corps) was authorized by Congress in 1965 to design and
construct a system of levees as part of the Lake Pontchartrain
and Vicinity, Louisiana Hurricane Protection Project. Although
federally authorized, the project was a joint federal, state, and
local effort. For the levees in the project, the Corps was
responsible for design and construction, with the federal
government paying 70 percent of the costs and state and local
interests paying 30 percent. As requested, GAO is providing
information on the (1) level of protection authorized by Congress
for the Lake Pontchartrain project; (2) authorities, roles, and
responsibilities of the Corps and local sponsors with respect to
the operation, maintenance, repair, replacement, and
rehabilitation of the levees; (3) procedures in place to ensure
that responsible parties maintain the levees in accordance with
the authorized protection level; (4) authorities, roles, and
responsibilities of the Corps and local parties when levees fail
or are damaged; and (5) plans, capabilities, and activities that
have been developed by the Corps to ensure an adequate emergency
response when levees fail. GAO is not making any recommendations
at this time. The Corps is authorized to prepare for emergency
response when levees fail by undertaking disaster preparedness,
advance measures, and hazard mitigation activities. The Corps'
New Orleans district has developed an all hazards emergency
response plan for the New Orleans area.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-322T
ACCNO: A43279
TITLE: Hurricane Protection: Statutory and Regulatory Framework
for Levee Maintenance and Emergency Response for the Lake
Pontchartrain Project
DATE: 12/15/2005
SUBJECT: Disaster relief aid
Emergency preparedness
Emergency response
Federal regulations
Flood control
Hurricanes
Inspection
Intergovernmental relations
Hurricane Katrina
Lake Pontchartrain Hurricane Protection
Project
New Orleans (LA)
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GAO-06-322T
Testimony
Before the Committee on Homeland Security and Governmental Affairs, U.S.
Senate
United States Government Accountability Office
GAO
Not to Be Released Before 10:00 a.m. EST
Thursday, December 15, 2005
HURRICANE PROTECTION
Statutory and Regulatory Framework for Levee Maintenance and Emergency
Response for the Lake Pontchartrain Project
Statement for the Record by Anu K. Mittal, Director Natural Resources and
Environment
GAO-06-322T
Madam Chairman and Members of the Committee:
As you requested, this statement discusses the legislative and statutory
framework governing levee maintenance and emergency response activities
for the Lake Pontchartrain and Vicinity, Louisiana Hurricane Protection
Project. This project, first authorized in 1965, is a joint federal,
state, and local effort designed to protect the lowlands in the Lake
Pontchartrain tidal basin within the greater New Orleans area from
flooding by hurricane-induced sea surges and rainfall. As you know, the
effects of Hurricane Katrina breached some of the approximately 125 miles
of levees that are part of this project and flooded a large part of New
Orleans. The breaches raised numerous questions about the design,
construction, operation, and maintenance of the project levees and flood
walls. In addition, the human suffering and loss of life resulting from
Hurricane Katrina raised questions about the emergency response activities
taken before, during, and after the flooding.
For this statement, we did not assess the extent to which the U.S. Army
Corps of Engineers (Corps) and local sponsors have complied with the
legislative and regulatory requirements. Some aspects of these assessments
will be part of our larger ongoing review of the federal response to the
Hurricane Katrina disaster, including the levees, which we plan to report
on in 2006. Specifically, this statement discusses the (1) level of
protection authorized by Congress for the Lake Pontchartrain project; (2)
authorities, roles, and responsibilities of the Corps and local sponsors
with respect to the operation, maintenance, repair, replacement, and
rehabilitation (OMRR&R) of the levees; (3) procedures required to ensure
that responsible parties maintain the levees in accordance with the
protection level authorized by Congress; (4) authorities, roles, and
responsibilities of the Corps and local parties when levees fail or are
damaged; and (5) plans, capabilities, and activities that have been
developed by the Corps to ensure an adequate emergency response when
levees fail. To conduct this work, we obtained and reviewed applicable
laws, regulations, guidance, intergovernmental agreements, and other
documents. We interviewed Corps personnel from headquarters, the
Mississippi Valley Division, and the New Orleans District to obtain their
perspectives on these issues. We performed the work reflected in this
statement between October and December 2005 in accordance with generally
accepted government auditing standards.
In summary:
o The Lake Pontchartrain project was authorized in 1965 to
protect New Orleans and the surrounding area from flooding
associated with a "standard project hurricane." A standard project
hurricane was expected to occur once in 200 years and represented
the most severe combination of meteorological conditions
considered characteristic for the region. When Congress authorized
the Lake Pontchartrain project, the current Saffir-Simpson Scale
used by the National Weather Service to categorize hurricanes by
intensity did not exist. According to the Corps, a standard
project hurricane is roughly equivalent to a fast-moving category
3 hurricane on the Saffir-Simpson Scale.
o Agreements between the Corps and local sponsors of the Lake
Pontchartrain project specify that, when a project unit is
complete, it will be turned over to the local sponsors for
operation, maintenance, repair, replacement, and rehabilitation.
According to the Corps, prior to Katrina, all but three sections
of the project that make up the Lake Pontchartrain project had
been completed and turned over to the local sponsors for operation
and maintenance.
o The Corps has the authority to repair or rehabilitate a flood
control project if (1) deficiencies are identified that are the
result of the original construction or (2) damage occurred from a
flood and the project is active in the Corps' Rehabilitation
Inspection Program. The Lake Pontchartrain project was active in
the Rehabilitation Inspection Program prior to Hurricane Katrina.
o Corps district and division employees are to oversee the OMRR&R
activities of the local sponsors through annual inspections. If,
in the course of these oversight activities, the Corps finds that
a local sponsor is not properly maintaining the levees, Corps
regulations outline a series of steps that the Corps can take to
bring the local sponsor back into compliance. These steps include
notifying the local sponsor or state governor, or initiating legal
action against the local sponsor if other steps do not result in
compliance. Based on Corps inspection reports from 2001 through
2004, all completed project units of the Lake Pontchartrain
project were inspected annually and considered in acceptable
condition.
o In the event that levees fail or are damaged, the Corps has
authority to provide a variety of emergency response actions.
These actions include emergency operations, such as providing
personnel and materials needed for flood fighting, and
rehabilitation of damaged levees.
o The Corps is also authorized to take actions in advance of
disasters to ensure an adequate emergency response if levees fail.
These actions are (1) disaster preparedness, including developing
emergency response plans and training personnel to respond to
emergencies; (2) advance measures, including providing supplies,
equipment, and contracting for the construction of temporary and
permanent flood control projects; and (3) hazard mitigation
activities, which are intended to help prevent or reduce the
possibility of a disaster, or reduce its damaging effects by
identifying lessons learned after the event. Although we have not
evaluated the Corps' efforts, Corps officials told us that they
employed these authorities in preparing for the potential flooding
that was predicted from Hurricane Katrina. In addition, after the
levees were breached, the Corps used its response and
rehabilitation authorities to provide flood-fighting assistance
and to begin the repair and restoration of the levees.
Since its founding in 1718, the city of New Orleans and its
surrounding areas have been subject to numerous floods from the
Mississippi River and hurricanes. The greater New Orleans area,
composed of Orleans, Jefferson, St. Charles, St. Bernard, and St.
Tammany Parishes, sits in the tidal lowlands of Lake Pontchartrain
and is bordered generally on its southern side by the Mississippi
River. Lake Pontchartrain, a tidal basin of some 640 square miles,
is connected with the Gulf of Mexico through Lake Borgne and the
Mississippi Sound.
The greatest natural threat posed to the New Orleans area is from
hurricane-induced storm surges, waves, and rainfalls. Because of
this threat, a series of control structures, concrete flood walls,
and levees was proposed for the area along Lake Pontchartrain in
the 1960s. Congress first authorized the construction of the Lake
Pontchartrain and Vicinity, Louisiana Hurricane Protection Project
in the Flood Control Act of 19651 to provide hurricane protection
to areas around the lake in Orleans, Jefferson, St. Bernard, and
St. Charles Parishes. Although federally authorized, the project
was a joint federal, state, and local effort. The Corps was
responsible for project design and construction of the
approximately 125 miles of levees, with the federal government
paying 70 percent of the costs, and state and local interests
paying 30 percent. Each of the four parishes protected by the
project is associated with a local levee district that is
generally composed of state-appointed officials and is considered
a state entity. Specifically, Orleans Parish is associated with
the Orleans Levee District, Jefferson Parish is associated with
the East Jefferson Levee District, St. Bernard Parish is
associated with the Lake Borgne Levee District, and St. Charles
Parish is associated with the Pontchartrain Levee District. These
levee districts are the local sponsors of the project, and their
responsibilities include ensuring the integrity of the levee
system in their districts throughout the year.
Congress authorized the Lake Pontchartrain project in 1965,
substantially in accordance with a Chief of Engineers report, to
protect the areas around the lake from flooding caused by storm
surge or rainfall associated with a standard project hurricane.
For the coastal region of Louisiana, a standard project hurricane
was expected to have a frequency of occurrence of once in about
200 years, and represented the most severe combination of
meteorological conditions considered reasonably characteristic for
the region. According to the Chief of Engineers report, a standard
project hurricane was selected as the design hurricane because of
the urban nature of the area.2
When Congress authorized the Lake Pontchartrain project, the 1
through 5 scale-known as the Saffir-Simpson Scale-that is
currently used by the National Weather Service to categorize
hurricanes from lowest to highest intensity did not yet exist.
According to the Corps, the standard project hurricane used for
the Lake Pontchartrain project would roughly equal a fast-moving
category 3 hurricane on the Saffir-Simpson Scale. In fact, the
standard project hurricane for coastal Louisiana approximates the
storm surge of a category 3 hurricane, the wind speed of a
category 2 hurricane, and the barometric pressure at the center of
a category 4 hurricane.3 Table 1 compares the coastal Louisiana
standard project hurricane parameters to which the Lake
Pontchartrain project was designed with the parameters for
category 2, 3, and 4 hurricanes on the Saffir-Simpson Scale.
Background
1Pub. L. No. 89-298, S: 204, 79 Stat. 1073, 1077 (1965).
Level of Protection Authorized by Congress
2H.R. Doc. No. 231, 89th Cong., 1st Sess. (1965).
3Barometric pressure is a key indicator of a hurricane's intensity. The
lower a hurricane's barometric pressure, the greater the wind speed and,
therefore, the storm surge.
Table 1: Comparison of Standard Project Hurricane Parameters for Coastal
Louisiana with Category 2, 3, and 4 Hurricane Parameters
Standard project Saffir-Simpson Saffir-Simpson Saffir-Simpson
hurricane for category 2 category 3 category 4
coastal Louisiana hurricane hurricane hurricane
Central 27.6 Hg 28.50-28.91 Hg 27.91-8.47 Hg 27.17-27.88 Hg
pressurea
Wind speedb 100 mph 96-110 mph 111-130 mph 131-155 mph
Radius of 30 miles N/A N/A N/A
maximum
windsc
Average 6 knots N/A N/A N/A
forward
speedc
Storm surge 11.2-13 feetd 6-8 feet 9-12 feet 13-18 feet
Source: GAO analysis of Corps and National Oceanic and Atmospheric
Administration data.
Notes: The shaded areas indicate those parameters on the Saffir-Simpson
Scale that are most closely aligned with those for the standard project
hurricane.
aCentral pressure is measured in inches of mercury (Hg) or millibars.
bWind speed for the standard project hurricane was measured as the maximum
5-minute average wind speed. The Saffir-Simpson Scale uses the maximum
1-minute average wind speed, a lower threshold.
cThe Corps estimated the radius of maximum winds and the average forward
speed for a standard project hurricane, and the Saffir-Simpson Scale does
not take either of these parameters into account.
dThe standard project hurricane calculated maximum surge heights for
different geographic areas within the Lake Pontchartrain area. The maximum
surge height for the South Shore of Lake Pontchartrain-where the 17th
Street, London, and Industrial Canals are located-was estimated at 11.2
feet.
At landfall, which was approximately 60 miles southeast of New Orleans,
Hurricane Katrina had a central pressure of 27.17 Hg and a wind speed of
140 mph. Wind speeds in New Orleans, which was west of the eye of
Hurricane Katrina, reached just over 100 mph. According to the National
Oceanic and Atmospheric Administration's National Climatic Data Center,
data on other Hurricane Katrina parameters are not readily available for
several reasons, including the destruction of certain buildings and
monitoring equipment and would have been used to measure storm surge.
Authorities, Roles, and Responsibilities for Operating and Maintaining the
Levees
Consistent with federal law, agreements between the Corps and local
sponsors of the Lake Pontchartrain project specify that local sponsors are
responsible for operation, maintenance, repair, replacement, and
rehabilitation of the levees when the construction of the project, or a
project unit, is complete.4 However, the Corps has authority to (1) repair
the project if deficiencies are the result of the original construction5
and (2) rehabilitate the project, if damage resulted from a flood and the
project is active in the Corps' Rehabilitation Inspection Program.6 Corps
district and division employees are to oversee OMRR&R activities performed
by the local sponsors on an annual basis.
Once construction of Lake Pontchartrain project units were completed, the
Corps was to transfer these project units to the local sponsors for
OMRR&R. These sponsors include the Orleans, East Jefferson, Lake Borgne,
and Pontchartrain levee districts. Although the Corps has not yet provided
us with dates on when the project units for the Lake Pontchartrain project
were completed, after Hurricane Katrina, the Corps' New Orleans District
and the Department of Defense's Task Force Guardian determined, based on
three criteria, that almost the entire Lake Pontchartrain hurricane
project had been turned over to local sponsors for ongoing OMRR&R
responsibilities. The criteria used to make this determination were (1) if
the project unit was completed in accordance with the designed level of
protection specified in the project decision document, (2) if the project
unit was being operated and maintained by the local sponsor, and (3) if
the project unit had passed the annual Inspection of Completed Works in
accordance with Corps regulations. Based on this evaluation, the task
force determined that only three project units-a bridge over the 17th
Street canal, a project unit in Jefferson Parish, and a project unit in
St. Charles Parish-had not yet been completed and turned over to the local
sponsors. Figure 1 shows the three project units that have not been
completed and turned over to the local sponsors.
433 U.S.C. S: 2213(j).
5Corps Regulation No. ER 1165-2-119.
6Corps Regulation No. ER 500-1-1.
Figure 1: Status of Completion and Turnover for Project Units in the Lake
Pontchartrain and Vicinity Project
While the assurances signed by local sponsors do not define project
completion, internal Corps regulations provide that completed projects or
completed project units will normally be turned over when all
construction, cleanup work, and testing of mechanical, electrical, and
other equipment are complete and the project is in proper condition for
the assumption of operation and maintenance by the local sponsors.7
Transfer is to be accomplished through a formal notice from the Corps to
the local sponsor that includes a transfer date determined by the Corps'
district engineers. According to Corps officials, the formal notice
generally is in the form of a letter to the local sponsor.
According to internal Corps regulations, upon transfer of a completed
project to the local sponsors, the Corps may no longer expend federal
funds on construction or project improvements.8 If the Corps determines
that unsatisfactory conditions have developed as a result of the original
levee construction, the Corps may undertake corrective action.9 For
example, a Corps district official responsible for operations and
maintenance oversight told us that if settlement of a completed levee
occurs, this is not considered a design or construction flaw. Instead,
this is considered a condition that should be addressed by the local
sponsors as part of their normal operations and maintenance
responsibilities.
Local sponsors' responsibilities for OMRR&R of the completed portions of
the Lake Pontchartrain project were established through local assurances
signed by the levee districts and the Corps. For the Lake Pontchartrain
hurricane project as constructed, these assurances were signed, and
subsequently accepted by the federal government for the Orleans Levee
District on June 21, 1985; the Pontchartrain Levee District on August 7,
1987; the East Jefferson Levee District on December 21, 1987; and the Lake
Borgne Basin Levee District on December 7, 1977. The formal assurances
commit the local sponsors to, among other things, operate and maintain all
features of the project in accordance with Corps regulations. Also, in
accordance with internal Corps regulations, the Corps is required to
provide local sponsors with an operations and maintenance manual at the
time of, or at the earliest practicable date after, the transfer of OMRR&R
responsibilities from the Corps to local sponsors for a completed project
or project unit. The manual is intended to assist the responsible local
authorities in carrying out their operation and maintenance obligations.
According to Corps officials, the OMRR&R responsibilities for levees are
straightforward, and the manual that the Corps provides local sponsors is
a one-page document that outlines the requirements as described by federal
regulations.10 Specifically, federal regulations require local sponsors to
ensure that the structure is operating as intended and to continuously
patrol the structure during flood periods to ensure that no conditions
exist that might endanger the structure and to take immediate steps to
control any condition that might endanger it. For maintenance, the
regulations require local sponsors to ensure at all times that the
structure is serviceable in times of flood. The regulations also require
periodic inspections and maintenance measures, including the following:
7Corps Regulation No. ER 1150-2-301.
8Corps Regulation No. ER 1150-2-301.
9Corps Regulation No. ER 1165-2-119.
o promoting the growth of sod, including routine mowing of the
grass and weeds;
o exterminating burrowing animals;
o removing drift material or wild growth from the levee (such as
brush and trees); and
o repairing any damage to the levee caused by erosion.
Repair, replacement, and rehabilitation are also considered part
of the local sponsors' maintenance responsibilities, as outlined
in internal Corps regulations. Repair refers to routine activities
that maintain the project in well-kept condition; replacement
refers to replacing worn-out elements; and rehabilitation refers
to activities necessary to bring a deteriorated project back to
its original condition. According to internal Corps' regulations,
local sponsors' maintenance is considered to be deficient when
these requirements have not fulfilled.11
Corps employees are to oversee local sponsors' OMRR&R activities
to ensure compliance and project integrity. Corps employees are
required to work directly with local sponsors to conduct annual
compliance inspections; review local sponsors' semiannual
compliance reports; and respond to engineering concerns,
maintenance questions, and reports of problems. A Corps district
official responsible for operations and maintenance oversight told
us that generally the Lake Pontchartrain project's local sponsors
have performed their operations and maintenance responsibilities
as required and have been responsive to the Corps' concerns.
Because the New Orleans district is part of the Mississippi Valley
Division of the Corps, the division also has responsibility for
managing and overseeing the periodic inspections conducted by
district engineers; reviewing and approving district engineers'
inspection reports; maintaining a database of information on
inspections and remedial measures taken; and receiving annual
OMRR&R summary reports from the districts under its command,
aggregating these reports, and sending them to Corps headquarters.
Federally authorized flood control projects, such as the Lake
Pontchartrain project, are eligible for 100 percent federal
rehabilitation if damaged by a flood as long as these projects are
active in the Corps' Rehabilitation Inspection Program
(rehabilitation program).12 To maintain active status in this
program, the Lake Pontchartrain project's levees are required to
pass an annual OMRR&R inspection conducted jointly by the Corps,
the local sponsor, the state Department of Transportation and
Development, and other stakeholders, as appropriate.13 According
to the Corps' inspection reports from 2001 through 2004, all
completed project units of the Lake Pontchartrain project were
inspected each year and had received an acceptable rating.
Both local sponsors and the Corps are required to conduct
oversight activities to ensure that levees are properly
maintained. If, in the course of these oversight activities, the
Corps finds that the local sponsors are not properly maintaining
the levees, internal Corps regulations outline a series of steps
that the Corps can take until the local sponsor comes into
compliance.
Federal regulations require that local levee districts are to
appoint a permanent committee, headed by a superintendent, that
will be responsible for all levee operation and maintenance
activities and inspections of federally constructed flood control
projects.14 The superintendent of the levee district is
responsible for performing periodic inspections of the levee to
ensure that routine maintenance responsibilities have been
effectively completed and that no hazards to the levee exist.
Typically, these inspections take place prior to the flood or
hurricane season, immediately following a high-water period, and
at other intermediate periods throughout the year. During an
inspection, the superintendent is required to examine and be
certain, among other things, that
o drainage systems are in good working condition and not becoming
clogged;
o no unusual settlement or material loss of grade or levee cross
section has taken place;
o cattle guards and gates are in good condition;
o the protective walls surrounding the levee have not been washed
out or removed;
o the levee crown is shaped to drain readily;
o no unauthorized vehicular traffic or cattle grazing has
occurred;
o no water seepage or saturated areas are occurring; and
o levee access roads are being properly maintained.
If, during these inspections, the superintendent discovers any
levee portion to be in substandard condition, it is the levee
district's responsibility to take immediate actions to correct the
inadequacy. The superintendent is required to submit a report
twice a year to the Corps District Engineer covering inspection,
maintenance, and operation activities of the levee district. At
this time, we have not examined the extent to which these steps
were taken by the local sponsors, and the Corps has not provided
us any documentation of such activities.
The Corps is responsible for overseeing the OMRR&R activities of
the Lake Pontchartrain project's local sponsors through an annual
compliance inspection program-known as the Inspection of Completed
Works program-and reviewing the local sponsors' semiannual reports
on OMRR&R activities submitted to the district office. According
to internal Corps regulations, the primary purposes of the
Inspection of Completed Works program are to prevent loss of life
and catastrophic damages, preserve the value of the federal
investment, and encourage local sponsors to bear responsibility
for their own protection. According to Corps officials, for the
Lake Pontchartrain project, the New Orleans District typically
completes this annual compliance inspection prior to the hurricane
season, in mid-May to early-June of each year. Our review of Corps
inspection reports for 2001 through 2004 indicate that while
inspections of the Lake Pontchartrain hurricane protection levees
in the Orleans and St. Bernard Parishes were generally conducted
in May of each year, the inspections of the levees in Jefferson
and St. Charles Parishes were generally conducted in the September
to November timeframe.15 According to the Corps, these inspections
are to cover the following items:
o level of protection,
o erosion control,
o slope stability,
o animal control,
o unwanted vegetative growth,
o concrete surfaces, and
o structural foundations.
Based on the results of these inspections, the district and
division are to characterize the inspected units on a scale from 1
to 3, where 1 means that the project units have been maintained in
accordance with the agreement between the Corps and the local
sponsors and are expected to perform as designed, and 3 means that
the project units have maintenance deficiencies such that the
project would probably fail during floods of project design or
lesser magnitudes. Within 120 days of an inspection, the district
is expected to prepare an inspection report and provide it to its
commanding unit. For example, the New Orleans District should
prepare an inspection report for the Lake Pontchartrain project
and forward it to the Mississippi Valley Division for review and
approval. Reports that indicate maintenance deficiencies are also
to be submitted annually to headquarters. All of the completed
units of the Lake Pontchartrain hurricane levees passed with an
acceptable rating for the period 2001 through 2004.
If a project receives a rating of 3 as a result of an inspection,
internal Corps regulations16 outline a progression of steps that
the Corps can take to ensure that local sponsors fulfill their
OMRR&R responsibilities and bring the levees back up to the
designed level of protection. The steps are as follows:
o Notify the sponsor orally of the deficiencies.
o Notify the sponsor in writing.
o Write a letter to the governor and the appropriate state
agencies-which, in the case of the Lake Pontchartrain project, is
the Department of Transportation and Development in Louisiana-to
enlist state participation to resolve the problem.
o Notify the Federal Emergency Management Agency (FEMA) of the
condition of the project.
o If acceptable actions are not taken by the nonfederal sponsor,
take actions to remove the project from eligibility for federal
emergency rehabilitation.
o Initiate legal action against the local sponsor to enforce
OMRR&R obligations as outlined in local assurances.
o Transmit a report to the Congress recommending authorization of
a new sponsor or reauthorization of the project along with
measures to eliminate hazards.
Although not documented in the annual inspection reports,
according to Corps officials, almost all past Lake Pontchartrain
project deficiencies have been resolved upon oral notification of
the local levee district. The official responsible for the
Inspection of Completed Works program in New Orleans only could
recall one or two instances when the Corps wrote a letter to a
local sponsor requesting that the sponsor commit resources to
repair a deficiency, which resulted in full compliance by the
local sponsor. Internal Corps regulations specifically prohibit
the use of federal funds to correct problems caused by a lack of
adequate local maintenance.
The Corps has authority to provide a variety of emergency response
actions when levees fail or are damaged. Section 5 of the Flood
Control Act of 1941, as amended, commonly referred to as Public
Law 84-99, authorizes the Corps to conduct emergency operations
and rehabilitation activities when levees fail or are damaged.17
In addition, under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act), as amended, the Corps and
other federal agencies may be tasked by FEMA to provide disaster
response, recovery, and mitigation assistance to state and local
governments.18 Furthermore, a Department of Defense Manual for
Civil Emergencies assigns responsibilities, prescribes procedures,
and provides guidance by which the Department of Defense responds
to all hazards in accordance with the Stafford Act.19 Although we
have not evaluated the Corps' efforts, Corps officials told us
that after the levees were breached the Corps used its response
and rehabilitation authorities to provide flood-fighting
assistance and to begin the repair and restoration of the levees.
State and local roles and responsibilities when levees fail are
similar to the Corps' responsibilities and are also described in
federal regulations.20
Public Law 84-99 authorizes the Corps to conduct emergency
operations and rehabilitation activities when levees fail or are
damaged during storms or other events. Federal regulations specify
that assistance is limited to providing emergency assistance to
save lives and protect property, such as public
facilities/services and residential, commercial, or industrial
developments.21 This emergency assistance may be provided during
and following a flood or coastal storm. However, under federal
regulations, nonfederal interests must fully utilize their own
resources, including manpower, supplies, equipment, and funds
before Corps assistance may be provided.22 The National Guard, as
part of the state's resources when it is under state control, must
be fully utilized as part of the nonfederal response. According to
federal regulations, the Corps is not to use funds to reimburse
local authorities for the costs of these emergency activities.23
To implement flood response operation authorities under Public Law
84-99, internal Corps regulations specify that Corps district
commanders must issue a Declaration of Emergency. The Declaration
of Emergency may initially be verbal, but must be made in writing
and reported in the district's situation report within 24 hours.
Authority to issue a Declaration of Emergency has been delegated
to deputy district engineers and includes all supervisors in the
chain of command, from the district commander to the chief of
emergency management.
Emergency operations include flood response and postflood response
activities.
o Flood response includes activities such as flood fighting and
rescue operations. These activities include providing technical
assistance, such as review and recommendations in support of state
and local efforts and help determining feasible solutions to
uncommon situations, and direct assistance by
o issuing supplies;
o conducting rescue operations;
o directing flood-fighting operations; and
o contingency contracting for emergency operations.
Corps assistance during flood-fighting operations is to be
temporary to meet the immediate threat and to supplement state and
local efforts. This assistance is not intended to provide
permanent solutions to flood problems and should be terminated
when the emergency is over-for example, when flood waters have
receded sufficiently.
o Postflood response includes emergency debris removal, temporary
restoration of critical transportation routes and public services
and utilities, and after action review and reporting.
Rehabilitation activities include the repair and restoration of
eligible flood control projects and federally constructed
hurricane or shore protection projects. Rehabilitation assistance
is limited to federal and nonfederal flood control works that are
in active status-those found to be properly maintained during
inspections-in the Corps' Rehabilitation Inspection Program at the
time of the hurricane, storm, or flood event.24 Rehabilitation
assistance is limited to repair or restoration of a flood control
work to its predisaster condition and level of protection (e.g.,
the actual elevation of the levee, allowing for normal
settlement).25 Any damage to federally constructed levees are
repaired with 100 percent of the cost borne by the federal
government; and damage to nonfederally constructed levees are
repaired with 80 percent of the cost borne by the federal
government and 20 percent by the local sponsor.26 Because the Lake
Pontchartrain project is federally constructed and was active in
the Corps' Rehabilitation Inspection Program, the Corps is
authorized to rehabilitate any levees that failed or were damaged
as a result of Hurricane Katrina, using this authority.
Additionally, in the aftermath of Hurricane Katrina, the Assistant
Secretary of the Army for Civil Works agreed to rehabilitate all
of the damaged Lake Pontchartrain and other hurricane and flood
control structures in the New Orleans area without any local cost
share, under emergency authority provided in statute.27 Further,
the federal government will fund the acquisition of lands,
easements, rights-of-way, and disposal or borrow areas not owned
or under control of the nonfederal sponsor, as well as the
performance of relocations, that are needed for the rehabilitation
and that are normally local responsibilities. The Corps estimates
that funding these activities for the Lake Pontchartrain project
will cost the federal government an additional $10 million and
over $248 million in total for all damaged levee systems in the
New Orleans area.
The Stafford Act, as amended, authorizes federal agencies,
including the Corps, to take emergency response actions when the
President has issued a major disaster declaration. Under the act,
a presidential declaration may be made after receiving a request
from the governor of the affected state.28 FEMA, within the
Department of Homeland Security, is responsible for administering
the major provisions of the Stafford Act. Actions taken under this
authority include disaster response, recovery, and mitigation
assistance to supplement state and local efforts.
To meet its obligations for emergency response, the Department of
Homeland Security developed a National Response Plan, which
describes the roles and responsibilities of various federal
agencies.29 Within the National Response Plan, the Department of
Defense has responsibility for Emergency Support Function
#3-Public Works and Engineering. The plan designates the Corps as
the operating agent for this function, to include planning,
preparedness, and response, with assistance to be provided by
other branches of the Department of Defense, as needed.
The National Response Plan lists the following activities for the
Corps:
o coordination and support of infrastructure risk and
vulnerability assessments;
o participation in preincident activities, such as prepositioning
assessment teams and contractors;
o participation in postincident assessments of public works and
infrastructure to help determine critical needs and potential work
loads;
o implementation of structural and nonstructural mitigation
measures to minimize adverse effects or fully protect resources
prior to an incident;
o execution of emergency contracting support for life-saving and
life-sustaining services, to include providing potable water, ice,
emergency power, and other emergency commodities and services;
o providing assistance in monitoring and stabilizing damaged
structures, and demolishing structures designated as immediate
hazards to public health and safety, and providing structural
specialist expertise to support inspection of mass care facilities
and urban search and rescue operations;
o providing emergency repair of damaged infrastructure and
critical public facilities, and supporting the restoration of
critical navigation, flood control, and other water infrastructure
systems;
o managing, monitoring, and providing technical advice in the
clearance, removal, and disposal of debris from public property
and the re-establishment of ground and water routes into impacted
areas; and
o implementing and managing FEMA's Public Assistance Program and
other recovery programs involving federal, state, and tribal
officials, including efforts to permanently repair, replace, or
relocate damaged or destroyed public facilities and
infrastructure.
A Department of Defense Manual For Civil Emergencies assigns
responsibilities, prescribes procedures, and provides guidance by
which the Department of Defense responds to all hazards in
accordance with the Stafford Act. The policy states that
commanders may conduct disaster relief operations when a serious
emergency or disaster is so imminent that waiting for instructions
from higher authority would preclude effective response. According
to the policy, commanders may do what is required and justified to
save human life, prevent immediate human suffering, or lessen
major property damage or destruction. Action taken in accordance
with the policy is limited to 10 days. A Corps commander providing
assistance to civil authorities under this guidance is not
required to obtain an agreement for reimbursement from the
requesting agency before providing assistance.
The Corps is authorized by Public Law 84-99 to prepare for
emergency response when levees fail by undertaking disaster
preparedness, advance measures, and hazard mitigation activities.
Although we have not evaluated the Corps' efforts, Corps officials
told us that they took action in advance of Hurricane Katrina to
prepare for the potential flooding that was predicted. As part of
this effort, according to Corps officials, the Corps' New Orleans
district used a draft hurricane preparedness plan for the New
Orleans area.
Corps division and district commanders are responsible for
providing immediate and effective response and assistance prior
to, during, and after emergencies and disasters. Although we have
not reviewed the extent to which the Corps undertook these
initiatives during the Katrina disaster, the Corps is responsible
for the following:
The Corps may take advance measures prior to a flooding event to
protect against loss of life and significant damages to urban
areas and public facilities.30 In the case of imminent danger of
levee failure or overtopping, the Corps can also take corrective
actions to ensure the stability, integrity, and safety of the
levee.31 Advance measures include the following:
1. Creating an emergency management organization.
Division and district commanders are expected to
provide adequate staffing for a readiness/emergency
management organization to accomplish the
preparedness mission. In addition, divisions and
districts should have teams readily available to
provide assistance under the Corps' authorities for
flood emergencies and other natural disasters;
execute responsibilities and missions under the
Stafford Act and the National Response Plan; staff a
Crisis Management Team, consisting of an Emergency
Manager and senior representatives from technical and
functional areas to provide guidance and direction
during emergency situations; and staff a Crisis
Action Team, consisting of the personnel necessary to
operate an emergency operations center.
2. Establishing and maintaining plans and procedures.
Corps headquarters, divisions, and districts are
expected to prepare and maintain plans for
emergencies and disasters, establishing an alternate
emergency operations center, and reconstituting the
district. These operation plans should cover
emergency/disaster assistance procedures under all
applicable authorities and potential mission
assignments. Each division and district should have,
at a minimum, an operation plan that provides
procedures for generic disasters within the division
and district. The plan should include general topics,
such as activating, staffing, and operating the
emergency operations center; reporting requirements;
notification and alert rosters; and organizing for
response to disasters. The plan should also have one
or more appendixes that specifically address the
disasters most likely to impact the division and
district. Operation plans are reviewed and updated
annually to reflect administrative changes. The
division/district's generic or principal disaster
operation plan is supposed to be reviewed, revised,
and republished biennially.
3. Training personnel for response. Divisions and
districts are expected to ensure that personnel who
are assigned emergency assistance responsibilities
have been properly trained.
4. Conducting exercises. Exercises are to be
conducted at least once every two years, consistent
with available funding. This requirement may be
waived if an actual emergency response was conducted
during the two-year period that was of sufficient
magnitude to have adequately trained emergency team
members and other personnel.
5. Establishing adequate command and control
facilities. Divisions, districts, and other Corps
groups should provide a dedicated facility for an
emergency operations center that will be able to
provide command and control for emergency/disaster
response and recovery activities.
6. Maintaining supplies, tools, and equipment.
Divisions and districts are expected to maintain
equipment and supplies that can be readily available
for use by the emergency operations center, disaster
field offices, disaster field teams, planning
response teams, and similar entities. Equipment
should be stockpiled for use during emergency
operations and exercises.
7. Managing inspections of flood control projects.
The Corps is responsible for ensuring that the levees
are properly maintained to perform as designed during
flood events.
1. Technical assistance: providing technical review,
advice, and recommendations to state and local
agencies before an anticipated flood event. For
example, the Corps may provide personnel to inspect
existing flood control works to identify potential
problems and solutions, evaluate conditions to
determine the requirements for additional flood
control protection, and recommend the most expedient
construction methods; provide hydraulic, hydrologic,
and geotechnical analysis; and provide information
readily available at Corps districts to local
entities for use in the preparation of local
evacuation and contingency flood plans.
2. Direct assistance: providing supplies, equipment,
and contracting for the construction of temporary and
permanent flood control projects. Examples of
emergency contracting work include the construction
of temporary levees; the repair, strengthening, or
temporary raising of levees or other flood control
works; shore protection projects; and removal of
stream obstructions, including channel dredging of
federal projects to restore the design flow.
Advance measures taken by the Corps are intended to supplement
ongoing or planned state and local efforts, and are designed to
deal with a specific threat. To implement advanced measures, the
governor should make a written request to the Corps. The local
sponsor for the advance measure assistance must agree to execute a
cooperative agreement and, at no cost to the Corps, when the
operation is over, remove all temporary work constructed by the
Corps or agree to upgrade the work to standards acceptable to the
Corps. In addition, the local sponsor is responsible for providing
traditional items of local cooperation, such as lands, easements,
rights-of-way, and disposal areas necessary for the work. Advance
measures assistance is temporary and must be terminated no later
than when the flood threat ends.
Hazard mitigation activities are intended to help prevent or
reduce the possibility of a disaster or reduce its damaging
effects. The Corps is required to participate on a FEMA-led hazard
mitigation team to identify postdisaster mitigation opportunities
and establish a framework for recovery. According to the Corps'
hazard mitigation policy, division commanders are to appoint
primary and alternate representatives to serve on the hazard
mitigation team; establish procedures for quick and effective
response to the requirements of the team; ensure essential
information and data necessary to assess mitigation opportunities
are available or capable of being obtained quickly; ensure
division hazard mitigation team representatives are trained in
flood hazard mitigation concepts and techniques; and provide
reports to FEMA and Corps headquarters. Recommendations of the
hazard mitigation team are intended to reduce or avoid federal
expenditures resulting from flood situations.32
The Corps' New Orleans District has a draft hurricane preparedness
plan that defines the district's role and responsibilities in the
event of an emergency due to a hurricane.33 The plan outlines the
essential functions of the district before, during, and after a
hurricane. These functions include pre-event planning,
organization, response, and recovery in order to minimize the
potential hazards to life and property. As part of this plan, the
district defines emergency organizational staffing to support
emergency operations. Selected personnel are assigned to specific
teams or offices that, in the event of a disaster, are to provide
the necessary liaison with federal, state, or local emergency
management agencies; make decisions relative to Corps'
capabilities and assignments; perform preliminary damage
assessments; or accomplish specific missions. According to the
plan, a New Orleans District Emergency Operations Center should be
staffed to respond to an emergency, and the center is to become
the focal point for collecting data, analyzing situations,
allocating resources, furnishing reports to higher headquarters,
and providing overall management and control of all district
activities. With the activation of the emergency operations
center, a crisis management team becomes responsible for
coordinating and directing district activities in the crisis
situation. A crisis action team is responsible for executing the
activities as directed by the crisis management team. According to
the plan, if a slow-moving category 3 or higher hurricane is
approaching the area, the team should be activated and deployed at
the direction of the commander. The plan does not contain any
specific guidance on how the district would respond to a levee
failure.
In closing, Madam Chairman, the legislative and regulatory
framework guiding the operations and maintenance of the levees
divides this responsibility among a number of partners, depending
upon specific circumstances. Similarly, the responsibilities for
emergency preparedness and response are dependent on a variety of
laws and regulations. As a result, the regulatory framework for
these activities is complex and oftentimes unclear. Whether these
responsibilities were appropriately fulfilled or played a role in
the flooding of New Orleans in the wake of Hurricane Katrina in
August 2005 is still to be determined.
For further information on this testimony, please contact Anu
Mittal at (202) 512-3841 or mittala@gao.gov. Individuals making
contributions to this testimony included Ed Zadjura, Assistant
Director; Allison Bawden; Kevin Bray; Kisha Clark; John Delicath;
Doreen Feldman; Jessica Marfurt; Barbara Patterson; and Barbara
Timmerman.
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1033 C.F.R. S: 208.10. According to Corps officials, the Corps has
provided local sponsors with specific operations and maintenance manuals
for the Bienvenue and Dupre floodgate structures in the Lake Pontchartrain
project.
11Corps Regulation No. ER 1130-2-530.
Procedures to Ensure That Levees Are Properly Maintained
Local Sponsors' Oversight Activities
12Locally authorized flood control projects can also participate in the
rehabilitation program. If active, locally authorized projects are damaged
in a flood emergency, the cost of rehabilitation is shared between the
local authority and the federal government-20 percent and 80 percent,
respectively. 33 C.F.R. S: 203.82(f).
13For projects other than levees that have mechanical or electrical parts,
such as locks, floodgates, drainage structures, and pumping stations,
periodic engineering inspections are also performed.
1433 C.F.R. S: 208.10(a)(2).
The Corps' Oversight Activities
15According to Corps officials, the majority of the protection in the
Jefferson and St. Charles Parishes is flood protection along the
Mississippi River as opposed to hurricane protection. Therefore,
inspections are done prior to the high-water period on the Mississippi
River.
16Corps Regulation No. ER 1130-2-530.
Authorities, Roles, and Responsibilities When Levees Fail
Public Law 84-99
1733 U.S.C. S: 701n. The Corps' administrative policies, guidance, and
operating procedures for natural disaster preparedness, response, and
recovery activities are set out in 33 C.F.R. part 203.
1842 U.S.C. S: 5121 et seq.
19DOD 3025.1-M (June 1994).
2033 C.F.R. S: 203.14.
2133 C.F.R. S: 203.32. The regulations also specify that the Corps is not
authorized to provide assistance to individual homeowners and businesses.
2233 C.F.R. S: 203.14.
2333 C.F.R. S: 203.32.
2433 C.F.R. S: 203.41.
25Corps Regulation No. ER 500-1-1.
26Corps Regulation No. ER 500-1-1.
Stafford Act
2733 U.S.C. S: 701n. According to the Corps, local sponsors requested that
the Corps undertake this work at full federal expense due to the
unprecedented damage and impacts to local governments and the inability of
the local sponsors to finance their share of the costs. According to the
Corps, the Assistant Secretary of the Army for Civil Works approved the
request with the concurrence of the Office of Management and Budget and
notified the House and Senate Appropriations Subcommittees on Energy and
Water Development.
2842 U.S.C. S: 5170.
29The Department of Homeland Security developed the National Response Plan
in response to a presidential directive, HSPD-5.
Department of Defense Manual for Civil Emergencies
Planned Emergency Response Activities
Disaster Preparedness
Advance Measures
30Corps Regulation Nos. ER 500-1-1 and EP 500-1-1.
Hazard Mitigation
31Corps Regulation Nos. ER 500-1-1 and EP 500-1-1.
New Orleans District's Hurricane Preparedness Plan
32Corps Regulation No. ER 500-1-1.
33The district's hurricane preparedness plan is in draft form. According
Corps officials, however, the draft plan was used to prepare and respond
to Hurricane Katrina. Corps District Regulation No. DR 500-1-3.
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Highlights of GAO-06-322T, a statement for the record to the Committee on
Homeland Security and Governmental Affairs, U.S. Senate
December 15, 2005
HURRICANE PROTECTION
Statutory and Regulatory Framework for Levee Maintenance and Emergency
Response for the Lake Pontchartrain Project
The greatest natural threat posed to the New Orleans area is from
hurricane-induced storm surges, waves, and rainfalls. To protect the area
from this threat, the U.S. Army Corps of Engineers (Corps) was authorized
by Congress in 1965 to design and construct a system of levees as part of
the Lake Pontchartrain and Vicinity, Louisiana Hurricane Protection
Project. Although federally authorized, the project was a joint federal,
state, and local effort. For the levees in the project, the Corps was
responsible for design and construction, with the federal government
paying 70 percent of the costs and state and local interests paying 30
percent.
As requested, GAO is providing information on the (1) level of protection
authorized by Congress for the Lake Pontchartrain project; (2)
authorities, roles, and responsibilities of the Corps and local sponsors
with respect to the operation, maintenance, repair, replacement, and
rehabilitation of the levees; (3) procedures in place to ensure that
responsible parties maintain the levees in accordance with the authorized
protection level; (4) authorities, roles, and responsibilities of the
Corps and local parties when levees fail or are damaged; and (5) plans,
capabilities, and activities that have been developed by the Corps to
ensure an adequate emergency response when levees fail.
GAO is not making any recommendations at this time.
Congress authorized the Lake Pontchartrain project to protect the New
Orleans area from flooding caused by storm surge or rainfall associated
with a hurricane that had the chance of occurring once in 200 years. This
was termed as the "standard project hurricane" and represented the most
severe combination of meteorological conditions considered reasonable for
the region. As hurricanes are currently characterized, the Corps' standard
project hurricane approximately equals a fast-moving category 3 hurricane,
according to the Corps.
Agreements between the Corps and four New Orleans levee districts-the
local sponsors for the Lake Pontchartrain project-specify that the local
sponsors are responsible for operation, maintenance, repair, replacement,
and rehabilitation of the levees after construction of the project, or a
project unit, is complete. Pre-Katrina, according to the Corps, most of
the levees included in the Lake Pontchartrain project had been completed
and turned over to the local sponsors for operations and maintenance. The
Corps has authority to repair or rehabilitate completed flood control
projects if (1) deficiencies are related to the original construction or
(2) damage is caused by a flood and the project is active in the Corps'
Rehabilitation Inspection Program. According to internal Corps
regulations, federal funds cannot be used for regular operations and
maintenance activities.
Both local sponsors and the Corps are required to conduct regular
inspections to ensure that levees are properly maintained. If the Corps
finds that local sponsors are not properly maintaining the levees,
internal Corps regulations outline a series of steps, such as notifying
the governor or taking legal action, that the Corps can take to bring the
local sponsor in to compliance. Corps inspection reports for 2001-2004
indicate that the completed portions of the Lake Pontchartrain project
were maintained at an acceptable level.
When levees fail or are damaged, the Corps has authority to provide a
variety of emergency response actions. Specifically, the Corps is
authorized to undertake emergency operations and rehabilitation activities
and, if tasked by the Federal Emergency Management Agency, to provide
disaster response, recovery, and mitigation assistance to state and local
governments, as needed. In addition, a Department of Defense manual
assigns responsibilities, prescribes procedures, and provides guidance for
responding to hazards. State and local roles and responsibilities when
levees fail are similar to the Corps' responsibilities and are described
in federal regulations.
The Corps is authorized to prepare for emergency response when levees fail
by undertaking disaster preparedness, advance measures, and hazard
mitigation activities. The Corps' New Orleans district has developed an
all hazards emergency response plan for the New Orleans area.
*** End of document. ***