The U.S. Army Corps of Engineers (USACE) recently issued an advance notice of proposed rulemaking for revisions to its natural disaster preparedness, response, and recovery programs. Interested parties – including state and local governments and tribal entities – may submit their comments until April 14, 2015.

USACE provides supplemental technical assistance to state, local, and tribal governments in six main areas of emergency response: disaster preparedness, emergency operations, rehabilitation, emergency water supplies, drought assistance, and advanced measures (emergency response to an imminent threat of unusual flooding). USACE is revising its policies to "incorporate information from recent storm events" such as Hurricane Sandy and flooding on the Mississippi and Missouri rivers.

The possible revisions to USACE programs would affect when and how a non-federal entity may seek USACE assistance. Additionally, the agency is considering changes that would alter the cost structure of certain disaster responses. The agency's request for comments on threatened species issues may also forecast new proposed species-related restrictions on USACE-sponsored projects.

Preparedness

USACE may undertake emergency measures in advance of imminent threats of unusual flooding to protect against loss of life and significant damages to urban areas and public facilities. Advance Measures may be technical (e.g., providing personnel to inspect projects to identify problems and solutions) and/or direct (e.g., construction to deal with a specific threat) assistance. Direct assistance is typically temporary in nature, and to be eligible for Advance Measures, a public sponsor must execute a cooperative agreement and, at no cost to USACE, when the operation is over, either agree to remove all temporary advance measures or upgrade them to standards acceptable to USACE. In regard to its Advance Measures responses, USACE presents the following questions for comment:

  • What (if any) additional types of Advance Measures assistance should be considered?
  • What (if any) additional eligibility or performance requirements should be considered generally for Advance Measures assistance?

In some cases, permanent structures may be constructed as Advance Measures. In these instances, the costs are shared at 75% federal and 25% local, with traditional lands, easements, rights-of-way, relocations, and borrow and dredged or excavated materials disposal areas (LERRDs) necessary for the Advance Measure being provided by the public sponsor at no cost to the federal government. Other flood control works have a minimum cost share of 65% federal and 35% local, with a credit being provided for the LERRDs necessary for the project. Regarding these Advance Measures permanent structures, the USACE seeks input on the following question:

  • Would changing the cost share for Advance Measures permanent structures serve as an effective incentive for promotion of the standard USACE planning process? If not, what would?

Rehabilitation

In order to qualify for USACE assistance under current regulations, a non-federal entity must satisfy strict requirements to show that it is adequately operating and maintaining its non-federal flood control structure. USACE is considering replacing these conditions with a broader spectrum of criteria. These criteria include the non-federal entity's emergency preparedness, planning, flood risk communication, and implementation of risk-prioritized operations and maintenance activities. Specifically, the agency presents the following questions for comment:

  • What should USACE evaluate to determine if a non-federal sponsor is adequately operating and maintaining its flood control project? What should be considered adequate operations and management for eligibility purposes?
  • How should USACE evaluate a non-federal sponsor's emergency preparedness, notification, risk communications plan, evacuation planning, and exercise plan and activities to determine if they are adequate? What should USACE evaluate? What should be considered adequate?
  • Are there other criteria that USACE should consider using to determine eligibility for rehabilitation assistance?

USACE is also soliciting comments on whether to extend the System Wide Improvement Framework (SWIF) to all non-federal flood projects. Currently, the SWIF program allows only non-federal levees and floodwalls to maintain eligibility for USACE rehabilitation assistance even if they are not adequately operated and maintained if the deficiency is due to a long-term challenge such as natural resource considerations, threatened species, or tribal rights. USACE is soliciting comments on whether and how to extend this flexibility to other flood control projects, such as channels.

Threatened species and tribal rights are also a consideration in shaping USACE's disaster response. USACE is soliciting comments on approaches that would "minimize or address impacts on threatened and endangered species and tribal treaty rights."

Finally, USACE is seeking to revise its Nonstructural Alternatives Projects (NSAP) program, which authorizes USACE to provide a NSAP instead of rehabilitating the existing flood prevention structure. The agency seeks comments on how to improve current NSAP policy and how to better inform non-federal entities of NSAP benefits.

This comment period presents a valuable opportunity for stakeholders to help shape anticipated revisions to USACE disaster response programs.