CECW-AG

Engineer Pamphlet

1165-2-1

Department of the Army

U.S. Army Corps of Engineers

Washington, DC 20314-1000

EP 1165-2-1

30 July 1999

Water Resources Policies and Authorities

DIGEST OF WATER RESOURCES 

POLICIES AND AUTHORITIES

Distribution Restriction Statement

Approved for public release; distribution is 

unlimited.
DIGEST OF WATER RESOURCES

POLICIES AND AUTHORITIES

EP 1165-2-1

30 July 1999
CECW-AG

Pamphlet

No. 1165-2-1

DEPARTMENT OF THE ARMY

U.S. Army Corps of Engineers

Washington, D.C. 20314-1000

EP 1165-2-1

30 July 1999

Water Resources Policies and Authorities

DIGEST OF WATER RESOURCES POLICIES AND AUTHORITIES

1. Purpose. This pamphlet provides a brief summary, in digest form,

of the existing administrative and legislative water resources

policies and authorities pertinent to the Civil Works activities of

the Corps of Engineers.

2. Applicability. This pamphlet applies to all HQUSACE elements,

major subordinate commands (MSC), districts, laboratories, and all

field operating activities (FOA) having Civil Works responsibilities.

3. References. Relevant published references indicated in the text

of each chapter of this pamphlet are listed at Appendix A.

4. Distribution. Approved for public release, distribution unlimited.

5. Use of this Pamphlet. This pamphlet was developed as a ready reference to policies spread throughout a voluminous body of engineer

regulations, manuals, technical letters and memoranda. Those

documents are cited in each chapter and should be consulted for

specific application in individual cases. In addition, the pamphlet

will be of value in orienting and familiarizing newly assigned

personnel, military and civilian, and study/project cost-sharing

partners with essential and paramount policies regarding Corps of

Engineers Civil Works activities.

6. Coverage. Although dated 30 July 1999, the information included

in this pamphlet summarizes policies as of 27 January 1999 (i.e.,

including Policy Guidance Letter No. 61).

FOR THE COMMANDER:

6 Appendices

(See Table of Contents)

This pamphlet supersedes EP 1165-2-1 dated 15 Feb 1996.
i

EP 1165-2-1

30 Jul 99

TABLE OF CONTENTS

Paragraph Page

CHAPTER 1 - THE FEDERAL RESPONSIBILITY IN WATER RESOURCES

General 1-1 1-1

Federal Powers 1-2 1-1

The Navigation Servitude 1-3 1-1

Sharing of Responsibility 1-4 1-2

Degrees of Federal Responsibility 1-5 1-2

Dynamic Nature of Federal Policy 1-6 1-2

CHAPTER 2 - LEGISLATIVE, EXECUTIVE, JUDICIAL ROLES AND POLICIES

Legislative Branch 2-1 2-1

Executive Branch 2-2 2-4

Administrative Policy 2-3 2-7

Judicial Branch 2-4 2-8

CHAPTER 3 - GENERAL POLICIES

General 3-1 3-1

Environmental Impact Statement (EIS) 3-2 3-2

Opposition by a State 3-3 3-3

Identification and Administration

 of Cultural Resources 3-4 3-4

Clean Water Act (CWA) 3-5 3-5

Marine Protection, Research and

 Sanctuaries Act (MPRSA) 3-6 3-5

National Pollution Discharge Elimination

 System (NPDES) Storm Water Discharge

 Permit Requirements 3-7 3-5

Clean Air Act (CAA) General Conformity

 Rule 3-8 3-6

Executive Order 11988, 24 May 1977,

 Flood Plain Management 3-9 3-6

Executive Order 11990, 24 May 1977,

 Protection of Wetlands 3-10 3-6

Executive Order 12898, 11 February 1994,

 Federal Actions to Address Environmental

 Justice in Minority Populations and Low-

 Income Populations 3-11 3-6

Executive Order 13007, 24 May 1996, Indian

 Sacred Sites 3-12 3-6

Influencing Legislation 3-13 3-8

OMB Circular A-76, 4 August 1983,

 Acquiring Products and Services 3-14 3-8

Environmental Efforts 3-15 3-8

Hazardous, Toxic, and Radioactive Wastes

 (HTRW) (ER 1165-2-132) 3-16 3-9

Expenditures on Aesthetics 3-17 3-10

Mobilization 3-18 3-12

Mitigation Banks for Corps Civil Works

 Projects 3-19 3-12

Watershed Perspective 3-20 3-14
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CHAPTER 4 - MANAGEMENT OF THE CIVIL WORKS PROGRAM

General Concept 4-1 4-1

Organizational Structure 4-2 4-2

Other Institutions for Management

 of River Basin Operations 4-3 4-7

Management and Administrative

 Controls 4-4 4-8

CHAPTER 5 - PLANNING STUDIES 

 Authorization of Studies 5-1 5-1

Types of Planning Studies 5-2 5-1

Preconstruction Engineering and Design 5-3 5-2

Planning Assistance to States 5-4 5-3

Corps Planning Guidance 5-5 5-3

The Planning Process 5-6 5-3

Procedures for Evaluating NED 5-7 5-6

Procedures for Evaluating Environmental 5-8 5-11

 Quality Outputs

Selection of a Recommended Plan 5-9 5-12

Indian Lands 5-10 5-13

Cost Allocation 5-11 5-13

 Identification of Non-Federal Sponsor

 Responsibilities in Planning Reports 5-12 5-15

Recommendations 5-13 5-17

Release of Information on Civil Works

 Investigations and Reports 5-14 5-18

Sale of Corps Civil Works 

 Publications and Reports 5-15 5-20

CHAPTER 6 - PROJECT COST SHARING AND REPAYMENT Principles and Objectives of Cost Sharing 6-1 6-1

Formulas, Legislative and Administrative

 Rules 6-2 6-1

Applicability of Cost Sharing 6-3 6-2

Navigation 6-4 6-3

Flood Damage Reduction 6-5 6-7

Hydroelectric Power 6-6 6-9

Municipal and Industrial Water Supply 6-7 6-10

Agricultural Water Supply 6-8 6-10

Recreation 6-9 6-10

Hurricane and Storm Damage Reduction 6-10 6-11

Aquatic Plant Control 6-11 6-12

Water Quality Enhancement 6-12 6-12

Fish and Wildlife Mitigation 6-13 6-12

Fish and Wildlife Enhancement 6-14 6-12

Deferred Payment by Non-Federal Sponsors 6-15 6-13

Environmental Protection

 (Environmental/Ecosystem Restoration) 6-16 6-13

Hazardous, Toxic, and Radioactive

 Wastes (HTRW) 6-17 6-14

Dam Safety Assurance 6-18 6-15

Correction of Design or Construction

 Deficiencies 6-19 6-15
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iii

CHAPTER 7 - REPORT PREPARATION, PROCESSING AND PROJECT AUTHORIZATION,

DEAUTHORIZATION

Preauthorization Planning Reports 7-1 7-1

Processing and Review of Pre-

 authorization Planning Reports 7-2 7-2

Authorization of Plans for

 Improvements 7-3 7-3

Preconstruction Engineering and Design 7-4 7-4

Deauthorization Review Program 7-5 7-4

CHAPTER 8 - PROGRAMMING, BUDGETING AND APPROPRIATIONS

Program Development 8-1 8-1

Appropriations 8-2 8-2

Budget Year New Starts 8-3 8-4

Classification of Projects 8-4 8-4

Acceptance and Return of Contributed

 or Advanced Funds 8-5 8-5

Credit or Reimbursement for Non-Federal

 Work on Projects 8-6 8-6

CHAPTER 9 - PRECONSTRUCTION ENGINEERING AND DESIGN AND ENGINEERING

DURING CONSTRUCTION

Preconstruction Engineering

 and Design Studies(PED) 9-1 9-1

Remaining Engineering and Design 9-2 9-1

Project Modifications 9-3 9-2

Design Sizing of Projects 9-4 9-3

Aesthetic Treatment and Environmental

 Design 9-5 9-3

Low Level Discharge Facilities 9-6 9-4

Engineering and Design Performance

 Analysis 9-7 9-4

Value Engineering 9-8 9-4

Use of Architect-Engineers 9-9 9-4

Use of Consultants 9-10 9-5

CHAPTER 10 - CONSTRUCTION

Requirements of Project Cooperation 10-1 10-1

Real Estate Requirements and

 Acquisition for Multiple Purpose

 Reservoir Projects 10-2 10-6

Real Estate Requirements for Single

 Purpose Flood Control Reservoirs

 and Non-Reservoir Projects 10-3 10-9

Relocations 10-4 10-10

Water Quality Requirements 10-5 10-14

Accomplishment of Construction Work 10-6 10-14

Reservoir Clearing 10-7 10-15

Use of Dredged Material 10-8 10-15

Housing of Project Personnel 10-9 10-16

Special Statutory Authority for

 Relocations and Alterations 10-10 10-16

Disposal of Land at non-Local Cooperation

 Projects Stopped During Construction 10-11 10-16
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iv

Transfer of Completed Local Cooperation

 Projects to non-Federal Interests 10-12 10-17

Project Cost Increase Limitations 10-13 10-17

Appraisal of Lands Containing Hazardous,

 Toxic, and Radioactive Wastes (HTRW) on

 Local Cooperation Projects 10-14 10-17

CHAPTER 11 - OPERATIONS, MAINTENANCE, AND PROJECT MANAGEMENT 

 Resource Management of Project Lands

 and Facilities 11-1 11-1

Responsibility for Operation, Maintenance,

 Repair, Replacement and Rehabilitation

 (OMRR&R) 11-2 11-3

Major Rehabilitation 11-3 11-10

Correction of Design or Construction

 Deficiencies 11-4 11-11

Dam Operations Management 11-5 11-11

Dam Safety Assurance 11-6 11-11

Changes in Water Control Plans 11-7 11-12

Mitigation of Damages Resulting from

 Construction and Operation of a Project 11-8 11-12

Use of Corps Reservoir Flowage Easement

 Lands 11-9 11-13

Granting Use of Civil Works Project

 Real Estate 11-10 11-14

Disposal of Civil Works Project

 Real Estate 11-11 11-15

Pest Management Program 11-12 11-16

Acceptance of Donations of Materials 11-13 11-16

Discontinuation of Maintenance of Projects 11-14 11-17

Operation and Maintenance Resumption after

 Suspension of Substantial Curtailment of

 Maintenance 11-15 11-17

Monitoring Coastal Projects 11-16 11-17

Energy Conservation 11-17 11-18

Environmental Compliance, Pollution

 Prevention and HTRW Site Restoration 11-18 11-18

CHAPTER 12 - NAVIGATION

The Federal Interest 12-1 12-1

Navigable Waters of the United States 12-2 12-2

NED Benefit Evaluation, Navigation 12-3 12-2

Priority Outputs, Cost Sharing, and

 Certain Kinds of Fishing Activities 12-4 12-4

Cost Sharing and Project Cooperation 

 for Navigation 12-5 12-5

Navigation Project for General Versus

 Restricted Interest 12-6 12-6

Transfer and Lightering Facilities,

 Barge Fleeting Areas 12-7 12-9

Ownership of Lands Created for

 Port Facilities 12-8 12-10

Development of Public Port or

 Industrial Facilities 12-9 12-10

Aids to Navigation 12-10 12-10

Waterway User Charges 12-11 12-10

Navigation Data 12-12 12-13
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Navigation Regulations 12-13 12-14

Danger Zones 12-14 12-14

Drift and Debris Removal 12-15 12-15

Wreck Removal 12-16 12-15

Charts, Publications and Notices 12-17 12-15

Channel Condition Surveys 12-18 12-16

Project Dimensions 12-19 12-16

Dredged Material Disposal 12-20 12-16

Placement of Dredged Materials on Beaches 12-21 12-19

Advanced Maintenance Dredging 12-22 12-19

Lock and Dam Replacements 12-23 12-19

Correction of Federal Navigation Project 

 Induced Shore Damage 12-24 12-20

Federal Project Development by Others 12-25 12-21

Navigation versus Hurricane and Storm

Damage Reduction 12-26 12-23

CHAPTER 13 - FLOOD DAMAGE REDUCTION

The Federal Interest 13-1 13-1

Flood Plain Management 13-2 13-1

Flood Related Planning Policy 13-3 13-2

Design Flood Criteria 13-4 13-2

Risk-Based Analysis 13-5 13-3

Structural Measures 13-6 13-3

Nonstructural Measures 13-7 13-5

Definition of the Flood Control Plan 13-8 13-5

Drainage 13-9 13-5

Project Cooperation and Cost Sharing 13-10 13-6

Single Owner Properties 13-11 13-9

Credit for Compatible Non-Federal Works 13-12 13-9

Flood Insurance 13-13 13-10

Evaluation of Economic Benefits for

 Flood Damage Reduction 13-14 13-10

Flood Emergency Operations and Disaster

 Assistance 13-15 13-13

Use of Storage Allocated for Flood

Damage Reduction and Navigation at

 Non-Corps Projects 13-16 13-15

Provision of Flood Protection at

 Urban Renewal Projects 13-17 13-15

Construction of Flood Control Projects by

 Non-Federal Interests 13-18 13-15

CHAPTER 14 - SHORE PROTECTION

Beach Erosion Control 14-1 14-1

Recreation 14-2 14-6

Hurricane and Abnormal Tidal Flood

 Protection 14-3 14-6

Lake Flood Protection 14-4 14-7

Evaluation 14-5 14-7

Project Cooperation 14-6 14-7

Technical and Engineering Assistance

 on Shore Erosion 14-7 14-9

Emergency Protection 14-8 14-9
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CHAPTER 15 - STREAM BANK EROSION CONTROL

The Federal Interest 15-1 15-1

Nature of Effects 15-2 15-1 

Special Continuing Authority 15-3 15-1

Specific Project Authority 15-4 15-2

Project Implementation 15-5 15-2

Technical and Engineering Assistance

 on Streambank Erosion 15-6 15-3

Streambank Erosion Resulting from

 Project Construction and Operation 15-7 15-3

CHAPTER 16 - HYDROELECTRIC POWER

 Authority and Corps Responsibilities 16-1 16-1

Evaluation 16-2 16-1

Cost Sharing 16-3 16-2

Coordination with Other Agencies 16-4 16-2

Marketing of Corps-Produced Power 16-5 16-3

Pumped Storage Power 16-6 16-3

Provision for Future Power 16-7 16-4

Control of Releases from Power Plants 16-8 16-4

Non-Federal Development at Corps

 Projects 16-9 16-5

Corps Developments at Non-Corps Sites 16-10 16-5

CHAPTER 17 - RECREATION

Authorities 17-1 17-1

Natural Resources Management Program

 Mission 17-2 17-2

Development of Outdoor Recreation

 Facilities 17-3 17-2

Recreation Use Projection and Benefit

 Evaluation 17-4 17-8

Cost Participation 17-5 17-8

Special Recreation Facility

 Considerations 17-6 17-10

Protection of Recreational Users at

 Civil Works Projects 17-7 17-11

CHAPTER 18 - WATER SUPPLY AND QUALITY MANAGEMENT 

The Federal Interest 18-1 18-1

Water Supply 18-2 18-1

Water Quality Enhancement and Management 18-3 18-5

Water Rights Involved in Project

 Development 18-4 18-6

Emergencies 18-5 18-7

CHAPTER 19 - ENVIRONMENTAL RESTORATION AND PROTECTION

Introduction 19-1 19-1

Ecosystem Restoration and Protection in

 the Civil Works Program 19-2 19-1

Corps Focus in Ecosystem Restoration and

 Protection 19-3 19-1

Restoration and the Ecosystem Approach 19-4 19-2

Federal and Ecosystem Restoration
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 Objectives 19-5 19-3

Collaboration with Other Agencies 19-6 19-3

Authorities Supporting Ecosystem

 Restoration 19-7 19-3

Environmental Authorities within WRDAs 19-8 19-4

Ecosystem Restoration Relationship to

 Traditional Environmental Topics 19-9 19-6 

Consideration of Wetland Resources within

 the Civil Works Program 19-10 19-7

Wetland Policy 19-11 19-7

Administration’s Wetlands Policy 19-12 19-8

Executive Order 11990, Protection of 

 Wetlands 19-13 19-8

Section 150 of the Water Resources

 Development Act of 1976 (PL 94-578) 19-14 19-9

Section 307 of the Water Resources

 Development Act of 1990 (PL 101-640) 19-15 19-9

Consideration of Fish and Wildlife

 Resources in the Civil Works Program 19-16 19-9

Fish and Wildlife Coordination Act (FWCA)

 of 1958 (PL 85-624; 16 U.S.C. 661-666) 19-17 19-10

The Endangered Species Act of 1973

 (PL 93-205) 19-18 19-12

The Clean Water Act of 1972, as amended

 (PL 92-500 and 33 USC 466 et seq.) 19-19 19-13

Legal Basis for Mitigation of Damages to

 Fish and Wildlife Resources 19-20 19-13

Mitigation Principals 19-21 19-14

Consideration of Beneficial Uses of

 Dredged Material within the Civil Works

 Program 19-22 19-17

Justification of Ecosystem Restoration

 Using Dredged Material 19-23 19-17

Cost Sharing of Ecosystem Restoration

 Using Dredged Material 19-24 19-18

Environmental Monitoring of Ecosystem

 Restoration Using dredged Material

 Projects 19-25 19-18

Procedures for Ecosystem Restoration

 Using Dredged Material for New

 Navigation Projects or Modifications

 (Construction) 19-26 19-18

Procedures for Ecosystem Restoration

 Using Dredged Material for Existing

 Navigation Projects (Maintenance

 Dredging) 19-27 19-18

Procedures for Ecosystem Restoration

 Using Dredged Material for Navigation

 Projects in Pre-Construction Engineering

 and Design (PED) or Construction 19-28 19-19

Consideration of Project Modifications

 for Improvement of the Environment

 within the Civil Works Program 19-29 19-19

Eligibility and Objectives for Section

 1135 Projects 19-30 19-19

Objectives and Constraints for Section

 1135 Projects 19-31 19-20
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Program Cost Sharing for Section 1135

 Projects 19-32 19-20

Operation and Maintenance for Section 1135

 Projects 19-33 19-21

Cost Allocation for Section 1135 Projects 19-34 19-21

Monitoring of Section 1135 Projects 19-35 19-21

Consideration of Aquatic Ecosystem

 Restoration Within the Civil Works

 Program 19-36 19-22

Consideration of Cultural Resources

 Management within the Civil Works

 Program 19-37 19-22

Cultural Resources Management in the

 Planning Process 19-38 19-23

Cultural Resources Management for

 Continuing Authority Projects 19-39 19-25

CHAPTER 20 - AQUATIC PLANT CONTROL

 Aquatic Plant Control Program 20-1 20-1

Program Controls 20-2 20-1

Budget 20-3 20-2

CHAPTER 21 - REGULATORY PROGRAM - PROTECTION OF THE PUBLIC INTEREST IN

THE WATERS OF THE UNITED STATES

Background 21-1 21-1

Authorities to Issue Permits 21-2 21-1

General Policies for Evaluating Permit

 Applications 21-3 21-3

Jurisdictional Limits 21-4 21-7

CHAPTER 22 - SUPPORT FOR OTHERS 

Support for Others (SFO) 22-1 22-1

Authorities 22-2 22-1

Guidance on Considering SFO Opportunities 22-3 22-1

Approval Authorities 22-4 22-1

Work for State and Local Governments 22-5 22-1

Work for Private Firms 22-6 22-2

Work on Problems of National Significance 22-7 22-2

Resourcing 22-8 22-2

Categories and Examples of Work 22-9 22-2

CHAPTER 23 - CIVIL WORKS RESEARCH AND DEVELOPMENT (R&D)

Purpose and Scope 23-1 23-1

Authorization 23-2 23-1

Program Development and Execution 23-3 23-1

Current Emphasis and Program Mix 23-4 23-2

Organizational Responsibilities 23-5 23-2

Transfer of Research Results 23-6 23-3

Internal and External Coordination and

 Information Exchange 23-7 23-3

Exclusion of Non-R&D Activities from

 R&D Funding 23-8 23-4

Research not Funded as R&D 23-9 23-4
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CHAPTER 24 - ACTIVITIES RELATED TO PROGRAMS ADMINISTERED BY OTHER 

FEDERAL AGENCIES

General 24-1 24-1

Environmental Review and Coordination 24-2 24-1

Watershed Protection 24-3 24-1

National Wild and Scenic Rivers System 24-4 24-1

Land and Water Conservation Fund 24-5 24-2

Community Development Program 24-6 24-2

Small Reclamation Projects 24-7 24-2

National Recreation Areas 24-8 24-2

Forest Service Lands 24-9 24-3

National Trails System 24-10 24-3

Endangered and Threatened Species 24-11 24-3

 Federal Energy Regulatory Commission

 (FERC) Licenses 24-12 24-4

Prime and Unique Farmland 24-13 24-6

Highly Erodible Lands and Wetlands

 Conservation 24-14 24-6

Superfund Program 24-15 24-7

Coastal Zone Management Act (CZMA) of

 1972, as amended (Public Laws 92-583

 and 101-508) 24-16 24-7

Coastal Barrier Resources Act of 1982

 (Public Law 92-348) 24-17 24-8

 Abandoned Shipwreck Act of 1987

 (Public Law 100-298) 24-18 24-8

Support to the National Flood Insurance

 Program 24-19 24-8

Department of Energy (DOE) Real Estate

 Assistance 24-20 24-9

Department of Commerce (DOC) Real Estate

 Assistance 24-21 24-9

National Estuary Program 24-22 24-9

APPENDICES

APPENDIX A - REFERENCES A-1

APPENDIX B - LEGISLATION PERTINENT TO THE WATER

 RESOURCES PROGRAM OF THE CORPS OF ENGINEERS B-1

APPENDIX C - EXECUTIVE ORDERS PERTINENT TO THE WATER 

 RESOURCES PROGRAM OF THE CORPS OF ENGINEERS C-1

APPENDIX D - OFFICE OF MANAGEMENT AND BUDGET CIRCULARS D-1

APPENDIX E - INTERAGENCY AGREEMENTS RELATED TO WATER 

 RESOURCES E-1

APPENDIX F - INDEX F-1
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TABLES AND FIGURES

Table 2-1 Continuing Authority Projects 2-2

Table 12-1 Non-Federal Share, Studies, PED 12-5

Table 12-2 Non-Federal Share, Construction, Operation and

 Maintenance 12-6

Table 12-3 General Policy for Proceeding with Proposed

 Projects In Single Owner Situations 12-7

Figure 4-1 Organization of HQUSACE 4-3

Figure 4-2 Organization of Directorate of Civil Works 4-4
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1-1

CHAPTER 1

THE FEDERAL RESPONSIBILITY IN WATER RESOURCES

1-1. General. The Constitution of the United States limits the

authority of the Federal Government to those powers expressly

delegated or as may reasonably be inferred from those granted. All

other powers belong to the states or the people. Regardless of the

character of Federal undertakings, enabling authority must be found

among the powers conferred upon the Federal Government by the states. 

Over the years the Congress has enacted large amounts of legislation

in accordance with those powers to define the Federal responsibility.

1-2. Federal Powers. Legislation which has been passed to define the

Federal role in water resource development is in conformance with the

following delegated powers.

 a. Commerce Power. Federal commerce authority includes

navigation, and Congress has jurisdiction over all navigable waters of

the United States. This power may be extended to nonnavigable

waterways and tributaries if the navigable capacity of the navigable

waterway or interstate commerce is affected.

 b. Proprietary Power. The Property Clause of the Constitution,

entrusts Congress with unlimited authority to control the use of

Federal public lands. This power is the basis for the 1902

Reclamation Act and provides the authority to sell power generated at

Federal dams.

 c. War Power. The scope of this power in relation to water

resources is largely unexplored by the judiciary. However, the Court

has found that the Wilson Dam on the Tennessee River was constructed

in the exercise of war and commerce powers.

 d. Treaty-Making Power. This power has importance,

particularly on international streams. Important functions with

respect to international streams have been vested in international

agencies created pursuant to the provisions of treaties. This power

is also the basis for treaties with Indian Tribes through which

certain rights to use of water have been reserved.

 e. General-Welfare Power. This power must be exercised for the

common benefit as distinguished from some mere local purpose and

provides sufficient power for many large-scale water resource projects

and other internal improvements.

 f. Judicial Power. Using this power the Supreme Court has

applied the principles of equitable apportionment to resolve

disposition of water controversies between states.

 g. Compact Power. This power provides that no state may enter

into an agreement with another state without the consent of Congress.

1-3. The Navigation Servitude. This sovereign power allows the

Government to use lands under navigable waters for navigation related

purposes without payment under the Fifth Amendment. The power

includes the right to remove any structures within the servitude. 
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1-2

The navigation servitude is derived from rights recognized under Roman

civil law and English common law for the public to use navigable

waterways without payment, despite the private ownership of the bed or

bank. The navigation servitude was incorporated into United States

law as part of the Commerce Power under the U.S. Constitution. Hence,

in exercise of Congress' power over navigation stemming from the

Commerce clause of the Constitution, no further Federal real estate

interest is required for navigation projects in navigable waters below

the ordinary high water mark. Further, the courts have also generally

held that, under the navigation servitude, claims of consequential

damages arising from Federal development for navigation, with respect

to property values or otherwise, are not compensable. However,

Congress has, to a degree, foregone that advantage through what some

may view as a definition of compensation for Federal real property

acquisitions (Section 111, Public Law 91-611, 31 December 1970)and the

definition of non-Federal sponsor cost-sharing requirements (Title I

of Public Law 99-662, 17 November 1986).

1-4. Sharing of Responsibility. In authorizing Federal participation

in water resource development projects Congress seeks to maintain a

reasonable balance between the powers of the Federal Government and

those retained by the states, local governmental entities, and private

enterprise. Many of the laws which Congress has enacted permit

Federal agencies to exercise latitude in developing plans which must

be specifically authorized by Act of Congress before they may be

carried out. This latitude requires that the responsible Federal

agency recommend to Congress, for each project or program planned, a

division of responsibility between Federal and non-Federal entities. 

This division of responsibility should represent a reasonable balance

between what the Federal Government should undertake and what should

be left to non-Federal interests. Arriving at that division requires

careful consideration of indicators of Congressional intent, as well

as the principles and policies spelled out by the legislation

authorizing the agency to propose projects and programs.

1-5. Degrees of Federal Responsibility. Acts of Congress, and

interpretations thereof by the Supreme Court, clearly indicate that

the Federal Government may participate to some degree in all aspects

of water and related land conservation, development, and management. 

However, the degree of Federal participation and financing is not the

same for all purposes. Also participation varies between planning,

construction, and operation and maintenance activities. Federal

participation in planning, construction, and operation or maintenance

activities is guided by careful consideration of applicable precedent

and law; the likelihood of widespread and general benefits; local

ability to solve problems; and savings to the Nation that might be

achieved by meeting needs through economies of scale. 

1-6. Dynamic Nature of Federal Policy. Legislative enactments

reflect both long- and short-range National priorities and require

progressive adaptation. Rigid policies are undesirable when dealing

with resources which affect the well-being of our people, and which

have broad economic, environmental, and social implications. Changing

technology and public priorities require flexible policies and

informed leadership to meet urgent needs and to assure the welfare of

future generations. Unusual and unique circumstances may present a

valid basis for exceptions to existing policies. However, approval of

departures from established Corps policies is not a delegated

authority. Reporting officers must request special guidance in such

circumstances. The Chief of Engineers will consult with higher

authority when necessary.
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2-1

 CHAPTER 2

LEGISLATIVE, EXECUTIVE, AND JUDICIAL ROLES AND POLICIES

2-1. Legislative Branch.

 a. Role. The basic legislation which governs the conduct of

the Corps civil works program consists of numerous separate enactments

of the Congress. The work of preparing and considering such

legislation is done largely in the Senate Committee on Environment and

Public Works and the House Committee on Transportation and

Infrastructure. The tendency has been for Congress to gradually

increase Federal responsibility in response to needs of the times. 

Some water resources project purposes were originally established

through specific legislation. Others were established as a result of

repetitive congressional authorization of projects containing resource

purposes incidental to the "primary" project purposes. Legislation

pertinent to the water resources program of the Corps of Engineers is

listed in Appendix B. While the public laws governing water resources

are the basic source of formal, explicit policy, the Congressional

intent which may be deduced from the documented history of these

legislative statements is also an important policy source. Sources

which express the sense of Congress include House and Senate Committee

reports and resolutions and the Congressional Record of discussions

during consideration of the proposed legislation.

 b. Authorizing Legislation. House Committee on Transportation

and Infrastructure and Senate Committee on Environment and Public

Works resolutions and specific legislation provide basic authorization

for feasibility studies by the Corps. Generally, water resource

developments recommended to the Congress in response to study

authorities may not be implemented without being specifically adopted

in law. The majority of the Corps water resources projects or

programs fall into that category. However, Section 201 of the 1965

Flood Control Act, as amended, delegated to the Secretary of the Army

the right to administratively authorize water resources developments

for which the estimated Federal cost is less than $15 million. 

Approval by the Public Works Committees is required prior to project

implementation. Additionally, subject to specific limits on the

allowable Federal expenditures, Congress has delegated continuing

authority to the Secretary of the Army acting through the Chief of

Engineers for study, adoption and construction of small projects for

navigation, flood control, beach erosion control, shore protection,

and ecosystem restoration as summarized in Table 2-1. Criteria for

design, evaluation, cost sharing and other local cooperation (with the

added requirement that local interests bear all project costs in

excess of the Federal limit, except for Section 111 projects) are the

same for these projects as for projects specifically authorized by

Congress.

 c. Legislative Landmarks. The Corps civil works responsibility

began with an Act of Congress in 1824 for the improvement of rivers

and harbors for navigation. This led to legislation in 1879 creating

the Mississippi River Commission and establishment of the Board of

Engineers for Rivers and Harbors(BERH) in 1902 (Note: The BERH ceased

to exist in 1993 in accordance with Section 223 of WRDA 1992). 

Legislative expansion of the Corps functional responsibility has

included:
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Table 2-1 Continuing Authority Projects

______________________________________________________________________

__

 Statutory Limit

 of Federal Costs 

Authority Type of Project for Which Used Per Project (2) 

 

Section 14 Streambank and Shoreline $1,000,000

1946 FC Act(1) Protection for Public 

 Facilities 

Section 103 Small Beach Erosion Control 2,000,000(3)

1962 R&H Act(1) Projects

Section 107 Small Navigation Projects 4,000,000(4)

1960 R&H Act(1)

Section 111 Mitigation of Shore Damage Due 2,000,000(3)(5)

1968 R&H Act(1) to Federal Navigation

 Projects

Section 204 Projects for Protection, None

1992 WRDA Restoration, and Creation of 

 Aquatic and Ecologically Related 

 Habitats, including Wetlands

 (Ecosystem Restoration Projects

 in Connection with Dredging) 

Section 205 Small Flood Control Projects 5,000,000

1948 FC Act(1)

Section 206 Aquatic Ecosystem Restoration 5,000,000

1996 WRDA Projects

Section 208 Snagging and Clearing for Flood 500,000

1954 FC Act(1) Control

Section 1135 Project Modifications for 5,000,000

1986 WRDA(1) Improvement of the Environment 

 (Ecosystem Restoration)

______________________________________________________________________

 

(1) As subsequently amended.

(2) Implementation, includes all Federal expenditures, including

preauthorization study costs.

(3) Includes actual costs for subsequent periodic nourishment, if

part of the adopted project, as well as for initial implementation.

(4) Also, the Federal share of total costs (initial implementation

costs plus the capitalized value of future maintenance costs) may not

exceed 2.25 times the initial Federal costs or $4.5 million, whichever

is greater.

(5) A project involving Federal costs in excess of $2 million will be

transmitted to Congress for specific authorization.

______________________________________________________________________
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 (a) Regulatory activities over waters, 1899, 1972, 1977 and

1987;

 (b) Hydroelectric power in dams, 1912 and 1917;

 (c) Flood control, 1917, 1927, 1936, 1974;

 (d) Recreation navigation, 1932;

 

 (e) Recreation, 1944, 1962, and 1965;

 (f) Irrigation (limited), 1944;

 (g) Water supply, 1944, 1958, and 1965;

 (h) Shore and beach erosion protection, 1946, 1956, 1962, 1974,

1996;

 (I) Hurricane protection, 1955, 1958;

 (j) Fish and wildlife conservation, 1958, 1965, and 1974;

 (k) Water quality, 1961, 1972, 1974;

 (l) Environmental concern and emphasis, 1970;

 (m) Wastewater management, 1972;

 (n) Wetlands development, 1976 and 1992;

 (o) Groundwater damages, 1986;

 (p) Environmental Protection, 1990;

 (q) Ecosystem Restoration, 1986 and 1996

The Water Resources Development Act (WRDA) of 1986 is the legislative

landmark of major current significance. In it, the Congress has

comprehensively reestablished and redefined, by purpose, the Federal

interest in water resources development and has--in recognition of the

limitations on Federal financial resources in an era of persistent

budgetary deficits--instituted requirements for proportionately

greater non-Federal cost sharing in Corps projects.

 d. Other Significant Legislation. During the 1970s there was a

qualitative change in public policy toward resource planning and

development, spurred by the recognition that this Nation's natural

resources are both interrelated and finite. Considerations other than

economic efficiency evolved. Among others, this legislation includes:

 (1) The Clean Water Act of 1977 (Public Law 95-217). This Act

amends Public Law 92-500 and continues the massive research and action

program designed to clean up U.S. waters. The Environmental

Protection Agency (EPA) has primary responsibility for implementing

this program. However, under Section 404 of the amended Act, the

Corps of Engineers retains primary responsibility for permits to

discharge dredged or fill material into waters of the United States. 

The Act also defines the conditions which must be met by Federal

projects before they may make discharges into the Nation's waters.
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 (2) Water Resources Development Act of 1976 (Public Law

94-587). Section 150 authorizes the Chief of Engineers to establish

wetland areas with dredged material from water resources projects. 

Although Section 150 authority has not been implemented, Section 204

of WRDA 1992 is currently the primary authority for implementation of

projects for the use of dredged material to protect, restore, or

create aquatic and related habitats.

 (3) Water Resources Development Act of 1974 (Public Law

93-251). Section 73 states a general policy that, during planning,

Federal agencies will give consideration to nonstructural measures to

reduce or prevent flood damage and that the Federal Government may

participate in the costs.

 (4) River and Harbor and Flood Control Act of 1970 (Public Law

91-611).

 (a) Section 122 directed the Secretary of the Army, acting

through the Chief of Engineers, to promulgate guidelines for

consideration of significant economic, social and environmental

effects of proposed water resources developments, so that final

project decisions are made in the best overall public interest.

 (b) Section 209 expressed the intent of Congress that the

objectives of enhancing regional economic development, quality of the

total environment, well-being of people, and national economic

development are to be included in the formulation and evaluation of

Federally financed water resource projects.

 (5) National Environmental Policy Act (NEPA) of 1969 (Public

Law 91-190). NEPA declared it a national policy to encourage

productive and enjoyable harmony between man and his environment, and

for other purposes. Specifically, it declared a "continuing policy of

the Federal Government ... to use all practicable means and measures

... to foster and promote the general welfare, to create conditions

under which man and nature can exist in productive harmony, and

fulfill the social, economic, and other requirements of present and

future generations of Americans." Section 102 authorized and

directed that, to the fullest extent possible, the policies,

regulations and public laws of the United States shall be interpreted

and administered in accordance with the policies of the Act.

2-2. Executive Branch. The Executive Branch of the Government is

responsible for implementing the policies and programs established by

law. This branch of Government includes the Executive Office of the

President and the various Federal departments and agencies. The

Department of the Army and the Corps of Engineers are charged by

Congress with the major Federal program of water resources

development. This has been the outgrowth of legislative and

administrative activity over many years. The term "civil works

program" is usually applied to these non-military Corps activities. 

The Executive Office of the President, acting directly or through

support offices, specifies policy, principles, methods, standards and

procedures on water and related land resources programs to be used by

Federal agencies in implementing their lawful activities. Executive

policies are generally issued through the Office of Management and

Budget (OMB). Pertinent Executive Orders (E.O.) are listed in

Appendix C. In addition, international commissions, and interagency

councils and agreements have been developed to aid in the

accomplishment of executive policy.
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 a. Department of the Army. The Secretary of the Army oversees

direction of the Corps of Engineers and its civil works program. 

Civil works laws authorize action in the following ways: action by

the Secretary; action under the direction of the Secretary and

supervision of the Chief of Engineers ; and by the Secretary, acting

through the Chief of Engineers. The Chief regularly submits reports

to the Secretary for transmittal, along with the Secretary’s comments

and recommendations, to OMB for its advice on the relation of the

report recommendations to the programs of the President. The Office

of the Assistant Secretary of the Army for Civil Works (OASA(CW))

works closely with the Headquarters, U.S. Army Corps of Engineers

(HQUSACE) on central or critical management areas, including general

programming of the Corps civil works budget; substantive policy

issues; quality assurance of the policy compliance process; priorities

for "new starts"; new or evolving functional areas of responsibilities

for the Corps; and legislative drafting services requested by members

of Congress. The OASA(CW) reviews and transmits the proposed Corps

civil works budget to OMB as a basis for the President's budget

recommendations to Congress.

 b. Office of Management and Budget (OMB). The current

structure of OMB was established by Executive Order 11541, July 1970,

in the Executive Office of the President. OMB coordinates Executive

Branch reports on proposed legislation and reviews proposed projects

to determine their relationship to the program of the President. It

reviews proposed Executive Orders and assists in the preparation of

the President's annual budget and in the formulation of the fiscal

program of the government, and also supervises and controls the

administration of the budget. Administration positions relating to

fiscal and budgetary matters are generally issued as OMB memoranda,

circulars and bulletins. Pertinent OMB circulars are listed in

Appendix D.

 c. Water Resources Council (WRC). The WRC was created as an

independent agency by the Water Resources Planning Act, Public Law

89-80, 22 July 1965, to be composed of member Federal agencies

involved in natural resources development. The purpose of the Act was

to encourage the conservation, development, and utilization of water

and related land resources on a comprehensive and coordinated basis by

the Federal Government, states, localities, and private enterprise. 

The Council members are the Secretaries of Agriculture; Army;

Commerce; Energy; Housing and Urban Development; Interior; and

Transportation; and the Administrator of the Environmental Protection

Agency. The principal functions of the Council were specified under

three titles of the Act:

 (1) Title I - Water Resources Council.

 (a) Prepare and maintain a national water assessment;

 (b) Coordinate water and related land resources planning

policies and programs with and among the Federal participants;

 © Establish principles, standards and procedures for Federal

participants in the preparation of plans and formulation and

evaluation of Federal water and related land projects. (*)

 (2) Title II - River Basin Commissions. (**)

 (a) Establish and assist river basin commissions, interagency 

committees and coordinating groups;
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 (b) Coordinate and review river basin and regional plans and

programs prepared by Federal - state interests;

 (3) Title III - Financial Assistance to the States. Administer

Federal financial grants to states for water and related land resource

planning.

Section 103 of the Act (*) directs WRC to promulgate, with the

approval of the President, principles, standards and procedures for

water and related land resources planning for use by member agencies. 

This is the only function currently being performed by WRC. (WRC is

no longer supported by permanent staff.) The six River Basin

Commissions (**) established pursuant to Title II were subsequently

terminated in accordance with Executive Order 12319, 17 February 1981.

 d. Council on Environmental Quality (CEQ). The CEQ was

established by Section 202 of the National Environmental Policy Act

(NEPA) of 1969. The Office of Environmental Quality (OEQ), which was

established by Public Law 91-224, 3 April 1970, provides staff for the 

CEQ. The CEQ advises and assists the President in providing

leadership in protecting and enhancing the quality of the Nation's

environment. It develops and evaluates Federal policies and

activities on environmental quality. One of CEQ's primary functions

in relation to water resources is the preparation of regulations

concerning the development of environmental impact statements

developed by the Corps and other agencies. CEQ regulations on

implementation of the procedural provision of NEPA are printed in 40

CFR 1500-1508.

 e. International Relations.

 (1) Canada. The International Joint Commission (IJC) was

established under the Boundary Water Treaty of 1909. It is empowered

to establish local international boards to assure adherence to the

rules and regulations pertaining to the utilization and safeguard of

United States and Canada boundary waters. IJC boards fall into two

broad categories: boards of control, which are more or less

permanent; and engineering or advisory boards, which are usually

dissolved after completing their investigation. Members on an IJC

board are in no sense representatives of their employers. Their board

service is of a professional capacity under the direction of the IJC;

their agency is not committed by their actions or those of the board. 

Initiation and approval of IJC reference actions by the U.S. Section

of the Commission is through the U.S. Department of State. Funding of

this activity is under the "International Waters Studies" account or

under an on-going study or project account.

 (2) Mexico. The International Boundary and Water Commission

(IBWC), United States and Mexico, was established pursuant to the Rio

Grande, Colorado and Tijuana Treaty of 1944 and deals with the

utilization of the waters of the three rivers basins. Activities of

the U.S. Section of the IBWC are funded under the Department of

State. The Corps, upon request of the U.S. Section, provides advisory

and technical services to the IBWC.

 (3) Management of Activities. Corps members serving on boards

of these International Commissions and their subordinate groups are

governed by USACE Supplement 1 to AR 15-1. Members submit an annual

fiscal year report on board activities per ER 25-2-1 for the Secretary

of the Army's Annual Report on Civil Works Activities.
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 (4) Native American Tribal Governments. The United States

Constitution specifically addresses Indian sovereignty by classing 

Indian treaties among the “supreme Law of the land,” and establishes

Indian affairs as a unique focus of Federal concern. Principles

outlined in the Constitution and treaties, as well as those

established by Federal laws, regulations and Executive Orders,

continue to guide our national policy toward Indian Nations. On 29

April 1994, the United States reaffirmed its “unique legal relationship

with Native American tribal governments.” In recognition of the

special considerations due to tribal interests, the President directed

Federal agencies to operate within a government-to-government

relationship with federally recognized Indian tribes; consult, to the

greatest extent practicable and permitted by law, with Indian tribal

governments; assess the impact of agency activities on tribal trust

resources and assure that tribal interests are considered before

activities are undertaken; and remove procedural impediments to

working directly with tribal governments on activities that affect

trust property or governmental rights of the tribes. The U.S. Army

Corps of Engineers has lasting and positive relations with many Indian

tribal governments (e.g., since 1990, Indian tribes have been local

partners in the development and construction of over 200 Corps water

resources development projects, and Indian tribes annually apply for

hundreds of permits under the Corps Clean Water Act permitting

responsibilities. To ensure that all Corps commands adhere to

principles of respect for Indian tribal governments and honor our

Nation’s trust responsibility, the “U.S. Army Corps of Engineers Tribal

Policy Principles” is to be used on an interim basis until more

detailed statements are developed. These Principles have been

developed with the OASA(CW) and are consistent with the President’s

goals and objectives.

 f. Interagency Agreements. These agreements represent a

coordination device agreed upon by two or more Federal agencies to

analyze or solve common problems in a consistent manner so as to

optimize the results of the joint effort. Interagency agreements,

adopted as common interagency policy, carry the authority of the

respective agency heads. Such agreements to which the Corps may be a

party are executed, on behalf of the Department of the Army, by

ASA(CW). The scope and degree of formality of this limited form of

Executive policy varies widely. Pertinent interagency agreements are

listed in Appendix E of this EP. 

2-3. Administrative Policy.

 a. Historic Policy. Administrative policy has developed

gradually but continuously over the years to implement laws and to

encompass the growth of economic and social need and changing

technology. Basic principles of formulation and evaluation were

outlined in the report to the Interagency Committee on Water Resources

entitled, "Proposed Practices for Economic Analysis of River Basin

Projects," originally issued in May 1950 and revised in May 1958

(generally referred to as the "Green Book"). In May 1962, the

President approved use of the principles and standards contained in

Senate Document 97, 87th Congress. In September 1973, the President

approved (and WRC published in the Federal Register) WRC's "Principles

and Standards for Planning Water and Related Land Resources" (P&S). 

The P&S set forth two co-equal national objectives, national economic

development (NED) and environmental quality (EQ); required, in

investigations of the member agencies, formulation of alternative NED

and EQ plans; and called for a display of the potential impacts of

plans in a system of four accounts--an account for each of the two
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national objectives, an account for regional development and an

account for social well-being. WRC later revised the P&S for clarity

and conciseness; to emphasize water conservation; and to require, in

investigations of member agencies, formulation of a primarily

nonstructural plan as one of the alternatives displayed. Separately,

WRC also promulgated procedures for NED evaluation and for EQ

evaluation. The WRC revised P&S, and the evaluation procedures were

published, 14 December 1979 and 29 September 1980, as final

administrative rules for the uniform observance of Federal agencies

engaged in level C planning. They were repealed 10 March 1983.

 b. Current Policy. On 11 September 1981, a proposal to repeal

the then standing administrative rules (P&S) was published by WRC in

the Federal Register. On 17 September 1981, the President ordered

that agency reports, proposals or plans be consistent with WRC's

existing P&S "or other such planning guidelines for water and related

land resources planning as shall hereafter be issued." (E.O. 12322) 

On 22 March 1982 WRC extended the period for comment on the proposed

repeal of the existing rules and published for public comment proposed

new Principles and Guidelines -- full title: "Economic and

Environmental Principles and Guidelines for Water and Related Land

Resources Implementation Studies." Thereafter, on 3 February 1983,

the President approved new principles superseding those incorporated

in P&S. On 10 March 1983 all of the elements of P&S were repealed (48

FR 10250) and notice of adoption and availability of the new

Principles and Guidelines (P&G) issued (48 FR 10259) in the Federal

Register. The effective date of change is 8 July 1983. These WRC P&G

are applicable to Corps implementation studies for civil works water

project plans (and to similar plans of the Bureau of Reclamation,

Tennessee Valley Authority, and the Natural Resources Conservation

Service). They have standing as Administrative Guidelines, not (as

did the P&S) Administrative Rules. The new principles differ from the

previous P&S most notably in that they prescribe a single Federal

objective, national economic development (NED), and do not

specifically characterize other plans that must be in the array of

alternatives considered. They do retain provision for display of

potential impacts in four accounts: NED, EQ, regional economic

development (RED) and other social effects (OSE). The new guidelines

are organized in three chapters: Chapter I - Standards integrates the

new principles into guidelines for carrying out the planning process;

Chapter II - National Economic Development (NED) Benefit Evaluation

Procedures; and Chapter III - Environmental Quality (EQ) Evaluation

Procedures which sets forth one alternative environmental evaluation

system that may be used.

2-4. Judicial Branch. Federal courts clarify and define the

responsibilities and limitations placed on the Corps civil works

activities by Federal statutes and the Constitution. Judicial

decisions have affected civil works policies in several major areas: 

basic authority to construct or operate projects; administrative

practices and required factors of consideration in project

construction and operation (including environmental factors); and the

scope and application of regulatory authorities.

 a. The Courts. The Federal courts include the Supreme Court of

the United States, the Court of Appeals, and the District Courts in

the eleven Federal Judicial Circuits. Questions of law decided in one

District or Circuit often foreclose similar questions in another

District or Circuit. However, cases regarding the conduct of specific

projects or activities are considered binding only with the District

or Circuit in which the case was decided. The Court of Claims is also
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a Court of original jurisdiction. Conflicting decisions among the

circuits are resolved by appeal to the Supreme Court.

 b. Relation to Congressional Authority. Congressionally

approved Corps projects must have been authorized in exercise of one

of the powers granted to Congress by the Constitution. Such

authorizations are generally based on the congressional powers to

regulate interstate and foreign commerce, or to tax and spend for the

general welfare. Major Supreme Court decisions have established that

those general powers include not only the power to promote navigation,

but also to provide for flood damage reduction, hydropower production,

watershed development, and similar activities of broad water resources

management. Furthermore, the powers can be applied by Congress not

only to the main portions of a river or other body of water, but to

it's watershed and non-navigable portions as well. Also involved is

the resolution of interstate water problems. States often assert

conflicting claims to the waters made available by a major interbasin

project. The Supreme Court has ruled that Congress may adopt a

comprehensive statutory plan for apportionment of the waters involved

when authorizing a project. Similarly, the court itself may

adjudicate such interstate disputes. Interstate cooperation is

approved by Congress in the form of an interstate compact. (Paragraph

4-3)

 c. Interpretation of Legislative Policy. Policies in new or

controversial fields often require judicial interpretation. In recent

years judicial effect on policy has been most pronounced in matters of

administrative procedures, particularly those involving public

participation in decision-making and related environmental questions. 

The provisions of the NEPA have been applied by the courts virtually

to the whole scope of the planning, construction, and operation of

water resources projects, resulting in numerous changes in agencies'

basic procedures. Due to this increased judicial scrutiny which

occurred in the early 197Os, individuals and groups affected by

present or proposed projects will have a continued opportunity to use

the courts to test the propriety and application of administrative

procedures.

 d. Legislation and Corps Regulatory Activity. Corps regulatory

authorities have been interpreted by the courts to require detailed

attention to systematic decision-making and protection of the

interests of the public at large as well as the particular interests

of the persons or entities subjected to Federal regulation. The

policies governing the administrative procedures in Corps regulatory

programs have accordingly become increasingly detailed.
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CHAPTER 3

GENERAL POLICIES

3-1. General. It is the policy of the Corps of Engineers to develop,

control, maintain, and conserve the Nation's water resources in

accordance with the laws and policies established by Congress and the

Administration. In accordance with those laws and policies, the Corps

carefully considers and seeks to balance the environmental and

developmental needs of the Nation. Actions taken comply with all

relevant environmental statutes, have no significant safety problem,

and are in the overall public interest. The following guidelines

summarize considerations taken to insure that actions taken are in the

public interest.

 a. Range of Alternative Solutions. The full range of

alternative solutions to a problem including their positive and

negative impacts should be considered from the outset of the planning

activity. Any water resource management proposal should be preceded

by a thorough assessment of all relevant alternative means, including

conservation, to achieve proposed project objectives and purposes

singly or in combinations reflecting different choice criteria. Such

an assessment should include a full range of structural and

nonstructural alternatives and an unbiased analysis of both Corps and

non-Corps means of resolving water and related land use problems;

while protecting the environment.

 b. With and Without Consequences. The with and without

consequences of each feasible alternative should be determined

adequately. The net effect of any proposed solution to a water

resource problem should be carefully considered under a with and

without action framework, using projections of economic, environmental

and social impacts. Beneficial and adverse project impacts may be

evaluated by measuring the differences between indicator values which

result if a proposed plan is implemented, and their values if the

natural forces of change continue to develop free of the influence of

action by the Corps. Proposed plans should include provisions for

protecting unique cultural and biological resources, such as historic

and archeological sites and threatened, endangered and otherwise

significant species and their habitats.

 c. Options Foreclosed. Options foreclosed by the proposed

action should be analyzed. Changing national values and priorities

will be reflected in different approaches to the future well-being of

the general public. In a rapidly changing society the needs of the

future cannot be forecast with accuracy. Where evolving technology

provides new alternatives a primary tenet of planning should be to

maintain flexibility for the future. Phased development or deliberate

delay may frequently be better than action for which incremental need

has not been demonstrated thoroughly and the resultant effects have

not been evaluated adequately. To maintain flexibility it is

necessary to devote extra attention to those actions which would

irrevocably limit freedom of action to deal with future changes to

project-area water development problems and needs. Significant

options retained or foreclosed should be specified. 

 d. Cumulative Effects of the Plan. The cumulative effects of

the plan and other similar activities should be analyzed. Each

proposed water resource development activity is but a piece of a

large-scale program. The combined beneficial and adverse economic,

environmental and social impacts of individual projects, each of which
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may be relatively minor, can have a significant regional or national

impact. At each level of the evaluation and review process it is

necessary to assess the cumulative beneficial and adverse effects of

individual project impacts. Significant effects should guide the

decisions.

 e. Public Participation. The civil works program is conducted

in an atmosphere of public understanding, trust and mutual cooperation

in a manner responsive to public needs and desires. To this end

opportunities for public input to the decision making process are

provided. 

 f. Program and Project Proponency.

 (1) The Corps is a program proponent of the budgetary priority

purposes of commercial navigation, flood damage reduction (including

hurricane and storm damage reduction), and ecosystem restoration. For

commercial navigation and flood damage reduction, the emphasis of

Corps program proponency is promoting national economic development

while protecting the Nation’s environment. Program proponency also

extends to restoration of degraded ecosystem functions and values with

a focus on ecological resources and functions associated with, or

directly dependent on, the hydrologic regime.

 (2) Project proponency is the support of specific action and

expenditure of funds to promote navigation, flood damage reduction, or

ecosystem restoration. Federal project proponency evolves through the

project implementation process. Initially, when a study is started,

there is no Corps project proponency even though the non-Federal

sponsor may have a project which it supports. When a project

recommendation is made, the Corps becomes the proponent for specific

Federal investment in that project. This project proponency, however,

is necessarily conditioned on the budgetary process. Corps

unconditional proponency in advocating that a project should be built

cannot be given until construction funds are budgeted and appropriated

for the project.

 g. Response to Goals and Priorities. The plan should respond

to the long-range development goals and priorities for the study area,

and to National policies and objectives. Many regions and basins have

long-range development goals and priorities, as specified in

assessments, framework studies, comprehensive basin studies, ecosystem

management plans, and in other sources. Any proposed plan should be

consistent with these objectives. To insure this consistency,

adequate coordination must be achieved with regional planning bodies

and all other interested parties.

3-2. Environmental Impact Statement (EIS). Section 102(2)(C) of NEPA

requires a detailed statement to accompany every recommendation or

report on proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment. The

Corps normally prepares EISs for feasibility reports for

authorization and construction of major projects, for changes in

projects which increase size substantially or incorporate additional

purposes, and for major changes in the operation and/or maintenance of

completed projects. Environmental assessments are normally prepared

for other Corps actions except for certain minor and/or routine

actions which are categorically excluded from NEPA documentation. A

finding of no significant impact is prepared by the reporting officer

to accompany an assessment when it is determined that an EIS will not

be prepared. NEPA documentation is accomplished prior to
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implementation of emergency work, if practicable. (ER 200-2-2)

 a. Notice of Intent. A notice of intent to prepare a draft EIS

is published in the Federal Register as soon as practicable after

reporting officers decide to prepare a draft EIS. (ER 200-2-2)

 b. Record of Decision. A Record of Decision is prepared to

document the Corps final decision on a proposed action requiring an

EIS. The Record of Decision identifies the reasonable alternatives;

designates the environmentally preferable alternative or alternatives

and the agency's preferred alternative; the relevant factors including

economic and technical considerations, statutory missions, and

national policy which were balanced to make the decision; and whether

all practicable means to avoid or minimize environmental harm have

been adopted, and if not, why not. (ER 200-2-2)

3-3. Opposition by a State. During the period from project

conception through construction, a governor or other state official

may request termination of a project or delay pending restudy of

modifications or alternatives. The views of the state are given great

weight in actions taken by the Corps as discussed in the following

paragraphs.

 a. Projects in Preauthorization Stages. The Corps

traditionally defers to adverse views of a governor on a proposed

project located in his/her state. A favorable recommendation over the

objections of a governor would be justified only if the project: is

physically located in more than one state and provides substantial and

urgently needed interstate benefits; is an indispensable element of a

major river basin plan; or involves compelling circumstances related

to national interest or security. The feasibility report would

contain a full documentation of the governor's opposition and would be

submitted to Congress for its decision.

 b. Authorized but Unfunded Projects. Projects in this category

are proposed for deauthorization using the authority of Section 1001

of Public Law 99-662 (paragraph 7-5.b). If not eligible for

deauthorization under Section 1001, consideration is given to placing

them in the inactive category (paragraph 8-4).

 c. Projects Funded for Preconstruction Engineering and Design. 

If gubernatorial opposition to projects in this stage occurs, the

Corps generally will phase out and suspend planning as long as the

governor remains opposed. Congress is informed during appropriation

hearings. If the project meets one of the criteria in paragraph 3-3.a

the Corps should propose to continue planning. If a project lacks

local support, or if a governor withholds or withdraws necessary

assurances or contractual requirements, planning should cease and

actions taken to classify the project as inactive. The final decision

to terminate planning on projects rests with Congress; the Corps

cannot unilaterally terminate planning.

 d. Projects with Construction Funds. Appropriation of

construction funds is a major project milestone, signifying a decision

by Congress to proceed with the project. All non-Federal commitments

have presumably been met, and at that late point a governor's

objection should not, in itself, be the grounds for terminating a

project. As a practical matter, projects that have been funded for

construction but have not proceeded--or have only had minimal land

acquisition--are in a somewhat different status than those actually

under physical construction. If a governor objects before
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construction is underway, the Appropriations Committees should be

notified and the Corps position outlined. Ordinarily, the Corps

defers all contract awards until after the next appropriations

hearings in order to give the Committees an opportunity to explore the

matter carefully, and construction would proceed if funding is

continued. For projects where construction is underway, the Corps

cannot, on its own, terminate construction except for engineering

reasons. If a governor raises objections to a project physically

under construction, existing contracts should be continued. New

contracts can be deferred until after appropriation hearings have been

conducted, if they do not seriously delay progress on the project. 

Otherwise, the Corps should inform the Committees of its intention to

award new contracts and do so unless instructed not to. Only the

courts or Congress can halt a project in this category.

3-4. Identification and Administration of Cultural Resources. The

Reservoir Salvage Act of 1960, Public Law 86-523, as amended, provides

Federal agencies the authority to expend up to one percent of the

amount authorized to be appropriated for the project to conduct

cultural resource surveys and follow-on activities on a

nonreimbursable basis. The consideration of the effects of projects

on cultural resources is initiated in preauthorization studies. 

Studies are coordinated with the National Park Service; the Advisory

Council on Historic Preservation; and the appropriate State Historic

Preservation Officer. A primary emphasis is to provide for cultural

activities prior to completion of project construction. However,

where need for such activities may occur during the operation and

maintenance of the project by the Federal Government, it will be

undertaken.

 a. Identification, Survey, and Evaluation. The costs of

identifying, surveying, and evaluating historical properties will be

treated as reimbursable planning costs, in accordance with Section

208(l) of Public Law 96-515 (16 U.S.C. 469c-2). Costs of these

activities during feasibility studies will be shared with the study

cost-sharing partner in accordance with Section 105(a) of WRDA 1986. 

Costs of these activities during or following preconstruction

engineering and design (PED) studies will be shared with the nonFederal sponsor in accordance with Section 105© of WRDA 1986.

 b. Recovery and Mitigation. The costs of recovery and

mitigation activities associated with historic preservation will be

treated as nonreimbursable project construction costs, up to the one

percent limitation specified in Section 7(a) of Public Law 93-291 (16

U.S.C. 469c). Nonreimbursable project costs are to be kept separate

from other project construction costs, and are not subject to cost

sharing. The costs of recovery and mitigation activities associated

with historic preservation which exceed the one percent limitation

specified in Section 7(a) of Public Law 93-291 will be treated as

follows:

 (1) Non-Federal sponsors will be asked to pay a portion of the

project costs over the one percent limitation, and waivers will be

obtained to spend more than the one percent on recovery and mitigation

activities, as specified in Section 208(3) of Public Law 96-515. 

Requests for waivers should be referred to HQUSACE (ATTN: CECW-A)

along with justification.

 (2) Once a waiver is obtained, expenditures for recovery and

mitigation activities over the one percent limitation will be shared

in the same manner as project costs are shared. For flood control,
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the cost sharing will be the minimum non-Federal cost-sharing

requirement for the underlying flood control purpose (see paragraph

6-5). 

3-5. Clean Water Act (CWA). There are two primary requirements of

the CWA with regard to Corps water resources projects. Full

compliance with the CWA must be attained before the initiation of

project construction. (ER 1105-2-100)

 a. Section 404. Corps projects involving the discharge of

dredged or fill material into the waters of the United States shall be

developed in accordance with 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 CWA (40 CFR 230) unless the activity is

exempt under Section 404(f). Procedures for the evaluation of

potential contaminant-related impacts associated with the discharge of

dredged material, as required by the Section 404(b)(1) Guidelines are

contained in the "Evaluation of Dredged Material Proposed for

Discharge in the Waters of the U.S. - Testing Manual" commonly

referred to as the Inland Testing Manual which was jointly developed

by the EPA and the Corps. The investigations and analysis required by

the Section 404(b)(1) Guidelines shall be included in feasibility

reports. (ER 1105-2-100) 

 b. State Water Quality Certification. Section 401 of the CWA

requires that the Corps obtain certification from the state or

interstate water control agencies that a proposed water resources

project is in compliance with established effluent limitations and

water quality standards. If the state in question has assumed

responsibilities for the 404 regulatory program, a state 404 permit

would be obtained which would serve as the certification of

compliance. Section 404(r) waives the requirement to obtain the state

water quality certificate if the information on the effects of the

discharge are included in an EIS on the proposed project submitted to

Congress before the discharge takes place and prior to either

authorization of the project or appropriation of construction funds. 

It is the general policy of the Corps to seek state water quality

certification rather than utilizing the Section 404(r) exemption. (ER

1105-2-100)

3-6. Marine Protection, Research and Sanctuaries Act (MPRSA). For

projects involving transportation of dredged material through the

territorial sea for the purpose of ocean disposal, or involving

dredged material disposal within the territorial seas for the primary

purpose of disposal, the discharge will be evaluated under Section 103

of the MPRSA. The disposal must meet the criteria established by the

EPA (40 CFR 227 & 228). Procedures for evaluating the potential

contaminant-related impacts of disposing dredged material in the ocean

are contained in the "Evaluation of Dredged Material Proposed for

Ocean Disposal - Testing Manual" jointly developed by EPA and the

Corps. The Corps will generally utilize ocean disposal sites

designated by the EPA to the maximum extent practical. Where no EPA

designated site is available, the Corps may select a suitable ocean

disposal site or sites using procedures and outlined criteria in 40

CFR 228.4(e), 228.5 and 228.6. Potential ocean disposal sites will be

specified in feasibility reports and, to the fullest extent

practicable, the Section 103 evaluation will be completed during the

feasibility study. (ER 1105-2-100) 

3-7. National Pollution Discharge Elimination System (NPDES) Storm
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Water Discharge Permit Requirements. All Corps facilities and

activities that meet the definition of an "industrial activity" under

40 CFR 122.26 are subject to the requirement to obtain storm water

permits. One Corps activity covered by the storm water rule is any

construction activity that disturbs five acres or more of land. The

“five acre” rule applies only in those states that do not have an

authorized NPDES storm water permit program. In the states where EPA

has delegated the NPDES responsibilities, the acreage rule

requirements may vary considerably between the states. Storm water

permits are issued by the states if they have an authorized NPDES

storm water permit program or by EPA for areas not covered by an

authorized state program. Activities regulated under Section 404 of

the CWA do not require permits under the NPDES program.

3-8. Clean Air Act (CAA) General Conformity Rule. Section 176(c) of

the CAA requires that Federal agencies assure that their activities

are in conformance with Federally-approved CAA state implementation

plans for geographical areas designated as "nonattainment" and

"maintenance" areas under the CAA. On 30 November 1993, EPA published

its final General Conformity Rule to implement Section 176(c). EPA's

final rule addresses how Federal agencies are to demonstrate that

activities in which they engage confirm with Federally approved CAA

state implementation plans. The EPA rule contains a number of

"exempted" or "presumed to conform" activities which include a number

of Corps activities. As applicable and required, CAA conformity

determinations will be completed during feasibility studies and

included in feasibility reports.

3-9. Executive Order (E.O.) 11988, 24 May 1977, Flood Plain

Management. This order outlines the responsibilities of Federal

agencies in the role of flood plain management. Each agency shall

evaluate the potential effects of actions on flood plains, and should

avoid undertaking actions which directly or indirectly induce growth

in the flood plain or adversely affect natural flood plain values. 

Agency regulations and operating procedures for licenses and permits

should include provisions for the evaluation and consideration of

flood hazards. Construction of structures and facilities on flood

plains must incorporate flood proofing and other accepted flood

protection measures. Agencies shall attach appropriate use

restrictions to property proposed for lease, easement, right-of-way,

or disposal to non-Federal public or private parties. (ER 1165-2-26)

3-10. Executive Order (E.O.) 11990, 24 May 1977, Protection of

Wetlands. This order directs Federal agencies to provide leadership

in minimizing the destruction, loss or degradation of wetlands. 

Section 2 of this order states that, in furtherance of the National

Environmental Policy Act of 1969, agencies shall avoid undertaking or

assisting in new construction located in wetlands unless there is no

practical alternative.

3-11. Executive Order (E.O.) 12898, 11 February 1994, Federal Actions

to Address Environmental Justice in Minority Populations and LowIncome Populations. A description of this order is provided in

Appendix C (paragraph 50, page C-9). The Corps is developing

implementation guidance to address this order and NEPA compliance.

3-12. Executive Order (E.O.) 13007, 24 May 1996, Indian Sacred Sites. Directs each executive branch agency with statutory or administrative

responsibility for the management of Federal lands, to the extent

practicable, permitted by law, and not clearly inconsistent with

essential agency functions, to (1) accommodate access to and
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ceremonial use of Indian sacred sites by Indian religious

practitioners and (2) avoid adversely affecting the physical integrity

of such sacred sites. Where appropriate, agencies are to maintain the

confidentiality of sacred sites. To implement this E.O., the Corps

has adopted the following policy:

 a. Goals. Corps Commands will use all reasonable means to

accommodate Indian tribes by providing meaningful access to sacred

sites on Corps lands. Corps Commands will also ensure that Indian

tribes have reasonable opportunities to review plans for activities

and programs on Corps lands that could potentially adversely affect

sacred sites.

 b. To accomplish the above policy goals, Corps Commands will

initiate consultation with Indian tribes on E.O. 13007, or will focus

ongoing consultation efforts on the requirements of the E.O. 

Consultation should address current needs and interests of the tribes

with regard to sacred places as well as a dialog on the development of

procedures for long-term tribal input and comment. The use of

Memoranda of Agreement (MOA) may be the most convenient vehicle for

both the Corps and the tribes to ensure the protections of the E.O. 

MOA can clearly delineate the responsible Corps/Indian tribe

officials, the responsibilities of all parties with respect to sacred

sites and safety issues associated with the accessing and use of

sacred places. These MOA can also be used to reinforce or augment

government-to-government protocols.

 c. The “sacred” nature and “ceremonial use” of an area may

imply a multiplicity of meanings. Ceremonial use can include, but is

not necessarily limited to, the collection of plants, the clearing of

habitat, the gathering of animal parts or feathers, and other types of

resource-consuming activities. Corps commanders have the discretion

to allow for consumptive use of Indian sacred sites if granting such

use is consistent with the functioning of Corps activities at the

site. Moreover, authorities other than E.O. 13007, such as treaties,

Federal laws, and other E.O.s may require a Corps commander to make

accommodations for ceremonial use that include consumption of

resources.

 d. Accommodating Indian tribes through access to sacred sites

may entail closing areas to the general public during particular times

of the year, as well as during certain seasons or months. In the

absence of a conflict with an essential command function, Corps

commanders should extend tribal accommodations to temporary partial

closures of narrowly delineated areas. This E.O. does not obligate

the Corps to permanently close any areas to the general public,

although Indian tribes may make, and Corps commanders may consider,

such requests.

 e. A serious concern that all parties share is the

confidentiality of information on sacred sites. One way to respond to

these concerns is to minimize the information needs regarding sacred

sites. There may be some, or indeed many, sacred sites on Corps that

have few, if any, outward signs discernable to non-Indians and these

sites may not be in jeopardy or threat. These sites might be visited

on a regular basis without being physically affected by religious

practices. As part of the above consultation process, Corps commands

and Indian tribes may agree that for these non-threatened and

physically unaffected sites, tribes can continue to visit without

reporting the sites’ nature or location to Corps officials.
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 f. For those sacred sites which tribes report to Corps

commanders, Corps documentation of the existence and location of these

sites may warrant protection from public disclosure under Exemption 3

of the Freedom of Information Act (FOIA), 5 U.S.C.A.

ss552(b)(3)(1998), and Section 304 of the National Historic

Preservation Act, as amended, 16 U.S.C.A. ss470w-3(a). The former

statute governs matters specifically exempted from disclosure by other

statutes. The latter allows the head of a Federal agency, under

specified circumstances and after consultation with the Secretary of

the Interior, to withhold disclosure of “information about the

location, character, or ownership of the historic resource.” In any

event, Corps commanders should not release information on Indian

sacred sites without first consulting with counsel.

3-13. Influencing Legislation. 18 U.S.C. 1913 prohibits the use of

appropriated funds, directly or indirectly, to pay for any personal

service, telegram, telephone, letter, printed matter, or any other

device intended to influence a member of Congress to favor or oppose,

by vote or otherwise, any legislation by Congress. It is the policy

of the Chief of Engineers that the spirit and intent of the referenced

statute be fully adhered to by all Corps of Engineers personnel. 

3-14. OMB Circular A-76, 4 August 1983, Acquiring Products and

Services. This circular sets forth the policies and procedures for

determining which method of performance will be used to obtain

services that can be performed in-house using Government resources

facilities or by contract with private sources. The Government's

business is not to be in business. The general policy of the

Government is to rely on competitive private enterprise to supply

necessary goods and services. However, it is recognized that certain

functions are so closely allied with the general public interest that

performance by Federal employees is required. Where private

performance is possible and no overriding factors require in-house

performance, the most economical method is to be chosen. (This is

reinforced and reemphasized in E.O. 12615.) It is the policy of the

Corps of Engineers to adhere to this policy and the Department of the

Army implementing guidance in carrying out its civil works activities. 

(ER 5-1-3)

3-15. Environmental Efforts.

 a. Policy. The Corps conducts its civil works program in full

compliance with the NEPA, the CEQ’s regulations (40 CFR 1500-1508),

and other environmental statutes and executive guidelines.

 b. Chief of Engineers Environmental Award Program. The Corps 

conducts a biennial awards program applicable to all field operating

activities (FOA) having civil works and/or military programs

construction responsibilities. This is part of the Chief of Engineers

Design and Environmental Awards Program. The categories of

competition, types of awards, basis of awards, and the procedures are

covered in an annual engineer circular. The objectives of the awards

program are:

 (1) Recognize excellence in the design and environmental

achievement of recently completed structures, developments, or

demonstrated research by the Corps FOAs and design firms.

 (2) Provide an incentive for design and environmental

professionals to develop new projects which will exhibit excellence in

function, economy, resource conservation, aesthetics and creativity,
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while being in harmony with the environment.

3-16. Hazardous, Toxic, and Radioactive Wastes (HTRW)(ER 1165-2-132).

 a. Definitions.

 (1) Except for dredged material and sediments beneath

navigable waters proposed for dredging, HTRW includes any material

listed as a “hazardous substance” under the Comprehensive Environmental

Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq

(CERCLA). Hazardous substances regulated under CERCLA include

“hazardous wastes” under Section 3001 of the Resource Conservation and

Recovery Act, 42 U.S.C. 6921 et seq (RCRA); “hazardous substances”

identified under Section 311 of the CAA, 33 U.S. C. 1321, “toxic

pollutants” designated under Section 307 of the CWA, 33 U.S.C. 1317,

“hazardous air pollutants” designated under Section 112 of the Clean

Air Act, 42 U.S.C. 7412; and “imminently hazardous chemical substances

or mixtures” on which EPA has taken action under Section 7 of the

Toxic Substance Control Act, 15 U.S.C. 2606; these do not include

petroleum or natural gas unless already included in the above

categories.

 (2) Dredged material and sediments beneath navigable waters

proposed for dredging qualify as HTRW only if they are within the

boundaries of a site designated by the EPA or a state for a response

action (either a removal or a remedial action) under CERCLA, or if

they are part of a National Priority List (NPL) site under CERCLA. 

Dredged material and sediments beneath the navigable waters proposed

for dredging shall be tested and evaluated for their suitability for

disposal in accordance with the appropriate guidelines and criteria

adopted pursuant to Section 404 of the CWA and/or Section 103 of the

MPRSA and supplemented by the Corps of Engineers Management Strategy

for Disposal of Dredged Material: Containment Testing and Controls (or

its appropriate updated version) as cited in Title 33 Code of Federal

Regulations, Section 336.1.

 b. Policy. Civil works project funds are not to be employed

for HTRW-related activities except as provided below, or otherwise

specified in law.

 (1) Civil Works Project Construction. Construction of civil

works projects in HTRW-contaminated areas should be avoided where

practicable. This can be accomplished by early identification of

potential problems in reconnaissance, feasibility, and PED phases

before any land acquisition begins. Costs of environmental

investigations to identify any existence of HTRW and studies required

for formulation of the NED plan, recognizing the existence and extent

of any HTRW, and studies required to evaluate alternatives to avoid

HTRW will be cost shared the same as cost sharing for the phase the

project is in (i.e., feasibility, PED, or construction). Where HTRW

contaminated areas or impacts cannot be avoided, response actions must

be acceptable to EPA and applicable state regulatory agencies. Table

1 in ER 1165-2-132 provides the policy on cost sharing of activities

for HTRW.

 (a) For cost-shared projects, the non-Federal sponsor shall be

responsible for ensuring that the development and execution of

Federal, state, and/or locally required HTRW response actions are

accomplished at 100 percent non-project cost. No cost sharing credit

shall be given for the cost of the response actions.
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 (b) For non-cost-shared projects where Federal funds are spent

for HTRW response actions, the cost of response actions will be a

project cost to be borne by the Department of the Army except when

another Federal agency is responsible for the HTRW, in which case the

response action should be borne by the responsible agency. A district

should not proceed with any response action for which another agency

is responsible until appropriate agreements have been reached with

that agency regarding funding for the response.

 (c) Funding arrangements and responsibilities for HTRW

response actions involving Federally owned lands, including those

administered by the Department of the Army, will be approved on an

individual basis.

 (d) Only where the cost of the reponse action is a project

cost will it be part of the economic evaluation.

 (2) Non-CERCLA Regulated Contaminents. Costs for necessary

special handling or remediation of wastes, pollutants and other

contaminents which are not regulated under CERCLA will be treated as

project costs if the requirement is the result of a validly

promulgated Federal, state, or local regulation. In such cases, land

value included in the economic analysis will be the fair market value

of the land considering the contamination, and the cost of the

required treatment will be a construction cost. The land value to be

credited to the sponsor will be the fair market value of the land in

the condition acquired. Credit will not be allowed for both costs of

the treatment or remediation and for the value of the land as if

clean.

 (3) Civil Works Project Plans. The plan for, and execution

of, each civil works project will routinely include a phased and

documented review to provide for early identification of HTRW

potential at civil works project sites.

 (4) Civil Works “Transition” Projects. On projects in

“transition”, where no HTRW investigation was conducted and where a

Project Cooperation Agreement (PCA) for construction has not been

executed, the district may conduct studies to determine the existence

and extent of HTRW as part of PED. After a PCA is executed, HTRW

investigations must be performed by the sponsor or the sponsor must

provide funds up front to pay for the district’s performance of the

studies. Costs of the studies will be shared based on the project

purpose and the project stage.

 (5) Response Actions. Response actions, involving HTRW

discovered on lands where the Government has been an owner and/or the

Corps has been an operator, will be handled on an individual basis.

3-17. Expenditures on Aesthetics. Incorporating environmental

quality into project design, including consideration of the visual

quality of the project, continues to be an important goal of the civil

works program. Guidance for assessing the aesthetic impacts of civil

works projects, and planning and designing projects to make positive

contributions to aesthetic quality is provided in the following: ER

1105-2-100; EM 1110-2-38; EM 1110-2-301; EM 1110-2-1205; EM 1110-2-

1202; EM 1110-2-1204. However, reasonableness must also be applied in

defining the appropriate levels of expenditures for aesthetic quality

at civil works projects. Current budgetary constraints and the

intense competition for Federal funds dictate a greater level of

discipline in meeting our responsibilities to harmoniously blend
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projects with the surrounding environment while avoiding excessive

expenditures. The following principles should be applied in defining

the appropriate measures for aesthetic quality at civil works projects

at all stages of project development.

 a. Project Relationship. Any aesthetic project features must

be related to harmoniously blending the project into the project

setting and not aimed at "beautifying" the surrounding area. This is

not at issue with measures that are integral to project design but is

an important consideration for measures that are not integral. For

example, plant materials can be used to reduce visual contrast or

screen projects. Landscape plantings must be limited to the land

required for the project and plantings will not extend to adjacent

property even if the adjacent property is a public park or recreation

area.

 b. Project Setting. The acceptability and compatibility of

aesthetic features of project design are affected by the project

setting and the expectation of the users and viewers of the project. 

The land use in the area surrounding the project is an important

consideration in determining the appropriate measures for aesthetics. 

For example, a concrete channel without aesthetic treatment may not be

visually objectionable in a heavy industrial area but a concrete

channel in a residential area may require texturing and screening with

trees and shrubs to be visually compatible with the residential land

use. Linear projects such as levees and channels may incorporate

different aesthetic features in different reaches of the same project,

depending on the visual qualities and land uses of the adjacent

property in that reach, with an appropriately designed transition

between different treatment reaches.

 c. Partnership. Project aesthetic features will be closely

coordinated with the non-Federal project sponsor. The objectives,

goals, desires, and values of the non-Federal sponsor will be

carefully considered in formulating the aesthetic features of the

project within the limits of a uniform application of standard Corps

practices for aesthetic quality, as defined in the above mentioned ER,

EMs, and paragraph 3-17.a-f of this EP. This does not preclude the

incorporation of measures into a project that would exceed the

standard Corps practice if the non-Federal sponsor is willing to bear

all of the incremental costs of such measures as elements of a locally

preferred plan. Equity is also an important consideration in working

in partnership with local sponsors. The preservation and enhancement

of aesthetic quality must be an important goal in all projects,

regardless of the socioeconomic conditions of the project area.

 d. Compatibility. All aesthetic measures must be designed so

that they are fully compatible with the project purpose and in no way

compromise the safety, integrity, or function of the project. For

example, it may be appropriate to screen a floodwall with vegetative

plantings but it would be inappropriate to plant trees directly on a

levee that might endanger its structural integrity or diminish its

hydraulic characteristics.

 e. Cost Allocation. Costs for aesthetic measures that are in

accordance with standard Corps practices are shared as project costs. 

Cost allocation would be an issue in multi-purpose projects where

aesthetic costs would be shared in accordance with the purpose to

which the costs are allocated. The addition of recreation as a

project purpose may introduce the need for an increased consideration

of aesthetics since it results in increased public visibility and use
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of the project. An example would be a hiking trail on a flood control

levee. In these cases, any incremental aesthetic costs associated

with the recreation purpose should be allocated to the recreation

purpose and cost shared with the non-Federal sponsor on a 50-percent

basis.

 f. Definition in the Feasibility Phase. Project measures to

preserve and restore aesthetic quality should be fully defined (i.e.,

described and displayed) in the feasibility report with engineering

appendix and reflected in the project cost estimate. The report

should include a description of the project setting and the

relationship of aesthetic features of the project to the setting. To

the extent practical, all the incremental costs of the project

aesthetic features should be identified, recognizing that some

aesthetic considerations are completely integral to the project design

and are not separable. This complete description and display of costs

will allow any issues on the reasonableness of the aesthetic measures

to be addressed prior to project authorization and be reflected in the

authorization document. Increases in levels of project costs for

aesthetics during pre-construction engineering and design, beyond

inflation, will not be approved.

3-18. Mobilization. The Corps of Engineers is one component of the

United States Army team. The Congress, by assigning the Chief of

Engineers' national missions of civil works for water resources

development in addition to the military missions, has provided the

nation a vital element of insurance for the rapid mobilization and

discharge of military engineering, construction and logistic services

in time of emergency. The civil works program and the peacetime

military construction program provide the base for maintenance of a

well rounded organization providing engineering, construction and

logistic services to the Army. In times of emergency those civil

works projects not essential to National defense will be rapidly

curtailed to provide an immediate working staff to execute military

engineering work. Inasmuch as all phases of rapid mobilization depend

on rapid construction, appropriate elements of the Corps of Engineers

maintain plans for mobilization. The civil works program is

accomplished in a manner which enhances this mobilization capability. 

(EP 500-1-2)

3-19. Mitigation Banks for Corps Civil Works Projects. In the

context of Federal activities, and in accordance with “Federal Guidance

for the Establishment, Use and Operation of Mitigation Banks” (Federal

Register, Volume 60, No. 228, November 28, 1995), mitigation banking

means the restoration, creation, enhancement and, in exceptional

circumstances, preservation of wetlands and/or other aquatic resources

expressly for the purpose of providing compensatory mitigation in

advance of authorized impact to similar resources. “Authorized

impacts” refers to impacts resulting from federally regulated

activities or impacts resulting from Federal projects or programs. To

date, there is no established Federal policy on the establishment, use

and operation of mitigation banks to compensate for impacts on upland

resources. Therefore, mitigation banks will not be used to compensate

for upland impacts of Corps civil works projects.

 a. General Policy. As defined in “Federal Guidance for the

Establishment, Use and Operation of Mitigation Banks”, the objective

of a mitigation bank is to provide for the replacement of the

chemical, physical and biological functions of wetlands and other

aquatic resources which are lost as a result of authorized impacts. 

Conceptually, there is no net gain in ecological value as a result of
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the creation and operation of a mitigation bank. Therefore, the Corps

permanent ecosystem restoration authorities under Section 1135 of the

WRDA 1986, as amended; Section 1103 of WRDA 1986; Section 204 of WRDA 

1992, as amended; and Section 206 of WRDA 1996, will not be used for

the creation of mitigation banks. Similarly, funding will not be

requested to initiate feasibility studies solely for the creation of

mitigation banks, but may be considered for joint ecosystem

restoration and mitigation banking projects as discussed below.

 b. Exceptions to General Policy. The Corps can participate in

implementing joint projects that include both ecosystem restoration

and mitigation banking elements as long as the Corps financial

participation in the project is limited to the ecosystem restoration

element. An exception to the general policy of not budgeting for the

creation of mitigation banks will also be considered where a

mitigation bank is being established primarily to mitigate for Corps

civil works projects. For example, a central mitigation bank could be

proposed for Corps implementation to provide credits for compensatory

mitigation for multiple projects in the same geographic area or for a

large project that is built in stages. Corps implementation of a

mitigation bank could also be considered to compensate for the impacts

of operation and maintenance activities. These exceptions will be

considered on a case-by-case basis. Any Corps bank must be

established in accordance with “Federal Guidance for the Establishment,

Use and Operation of Mitigation Banks”.

 c. Use of Mitigation Banks in Civil Works Projects. While, as

a general policy, Corps civil works funds will not be used to finance

the creation of mitigation banks, credits from mitigation banks

established by others may be used to compensate for environmental

impacts from construction or operation and maintenance of Corps civil

works projects. The following policies apply to use of credits from

mitigation banks.

 (1) Mitigation banks that can be considered for meeting the

mitigation requirements for civil works projects include public and

privately sponsored banks. To be eligible for consideration, a bank

must have been established and approved in accordance with “Federal

Guidance for the Establishment, Use and Operation of Mitigation

Banks”. This guidance provides for a Corps led interagency process

for 

review and approval of mitigation banks which addresses all relevant

issues including accounting procedures, the banking instrument,

management, monitoring and contingencies actions in the event of bank

failure and default. Where a mitigation bank was established prior to

the Federal guidelines, the bank can be considered if it meets the

standards established by the Federal guidance.

 (2) The use of credits from a mitigation bank to meet the

compensatory mitigation requirements for a civil works project must be

evaluated in accordance with guidance for mitigation planning and

recommendation in paragraph 7-35 of ER 1105-2-100.

 (3) Credits from a mitigation bank are a service which is

acquired to meet the compensatory mitigation requirements of a civil

works project. This service includes acquisition of required lands,

easements and rights-of-way; construction and management activities to

produce credits; and operation and maintenance of the bank. However,

there will be no division of costs for credits into its components for

cost sharing purposes. All costs associated with acquisition of

credits from a mitigation bank will be classified as construction
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costs of the civil works project for which the mitigation is being

provided. The costs for acquisition of credits will be shared in

accordance with the cost sharing applicable to construction costs for

that project purpose.

 (4) The purchase of mitigation credits must comply with any

applicable Federal procurement laws and regulations such as the

Federal Acquisition Regulation (FAR) codified at 48 C.F.R.

3-20. Watershed Perspective. The watershed perspective applies to

all Civil Works programs through planning, design, construction,

operation, maintenance, restoration, rehabilitation, and regulatory

activities. The application of this perspective into the Civil Works

program encourages opportunities for enhancing the operations and

maintenance of existing projects, especially the management of the

natural resources. In addition, this perspective facilitates the

integration of the nine Civil Works business programs into the

identification and development of new Corps initiatives. The

perspective recognizes the responsibility of the Corps as a major

stakeholder in many of the Nation’s watersheds. 

 

 a. Definitions. Federal, tribal, State, and local agencies

and organizations have varying interpretations of the definition of a

watershed, the identification of the range of water resources issues,

and the methods of evaluation. They also have differing views on the

anticipated purposes and goals of watershed initiatives. These

interpretations are based on defining manageable units and specific

issues that a particular agency or organization have determined to be

appropriate for their individual mission areas and identifying ways to

meet their program goals. For the purpose of Corps Civil Works

initiatives, the following definitions apply:

 (1) Watershed perspective is the viewpoint which requires that

all activities be accomplished within the context of an understanding

and appreciation of the impacts of those activities on other resources

in the watershed. The watershed perspective encourages the active

participation of all interested groups and requires the use of the

full spectrum of technical disciplines in activities and decision

making. This viewpoint takes into account: the interconnectedness of

water and land resources; the dynamic nature of the economy and

environment; and the variability of social interests over time. It

recognizes that watershed activities are not static, and that the

strategy for managing the resources of the watershed needs to be

adaptive.

 (2) A watershed is an area of land within which all surface

waters flow to a single point. It encompasses the area necessary to

adequately scope, analyze, and manage related water and land

resources. 

 (3) Watershed management is the administration of and

potential adjustments to the level and type of interaction among

various human activities and natural processes occurring in the

watershed through the application of the watershed perspective. 

Watershed management includes the planning, development, use,

monitoring, regulation and preservation of the water and land

resources. It should achieve a desirable balance among multiple, and

often competing, watershed goals and objectives.

 (4) Watershed studies are planning initiatives that have a

multi-purpose and multi-objective scope and that accommodate
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flexibility in the formulation and evaluation process. The outcome of

a watershed study will generally be a watershed management plan, which

identifies the combination of recommended actions to be undertaken by

various partners and stakeholders in order to achieve the needs and

opportunities identified in the study and may or may not identify

further Corps studies or implementation projects. However, budgetary

priority will be given to those studies likely to result in further

Corps activities or which will provide benefits to an existing Corps

project whose uses are being impaired by activities or conditions

within the watershed. Further consideration for funding will be given

to Corps involvement in watershed studies of national importance which

do not necessarily lead to a Corps project.

 b. Policy. The Corps will integrate the watershed perspective

into opportunities within, and among, Civil Works elements. 

Opportunities should be explored and identified where joint watershed

resource management efforts can be pursued to improve the efficiency

and 

effectiveness of the Civil Works Programs. The Corps will solicit

participation from Federal, tribal, state, and local agencies,

organizations, and the local community to ensure that their interests

are considered in the formulation and implementation of the effort. 

Due to the complexity and interrelation of systems within a watershed,

an array of technical experts, stakeholders, and decision-makers

should be involved in the process. This involvement will provide a

better understanding of the consequences of actions and activities and

provide a mechanism for sound decision making when addressing the

watershed resource needs, opportunities, conflicts, and trade-offs.
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CHAPTER 4

MANAGEMENT OF THE CIVIL WORKS PROGRAM

4-1. General Concept. Decentralization through delegation of

authority is a basic tenet of the Corps organization and structure. 

Managers at each level should have sufficient authority to discharge

their missions. The Chief of Engineers attempts to provide every

manager clearly defined policies, principles, and criteria. 

Compliance with this guidance is checked with a minimum number of

essential personal contacts, such as Command Inspections, staff

visits, Inspector General (IG) inspections, various types of audits

and management reports. Authority is ordinarily delegated to the next

subordinate manager if: facts upon which to formulate a prudent

decision are available to the manager; adequate resources, including

personnel possessing the specialties and experience to make a

professionally acceptable decision are available to the manager, or

can be economically made available; no restriction on delegating or

discharging the authority has been imposed by law or regulation of

higher authority. (ER 10-1-2)

 a. Corps Missions. The mission of the U.S. Army Corps of

Engineers is to provide quality, responsive engineering services to

the nation. The Corps provides water resources and other civil works

projects, facilities for the U.S. Army and U.S. Air Force, support for

other U.S. Department of Defense agencies in times of both war and

peace, and support for other Federal agencies. The U.S. Army Corps of

Engineers’ Civil Works mission is to contribute to national welfare by

providing quality authorized water resources and emergency response

programs through partnerships. Civil Works programs are: navigation;

flood and storm damage reduction; environmental protection; regulation

of work by others in waters of the United States, including wetlands;

emergency operations; research and development; and support to other

Federal agencies. Additional outputs of Corps Civil Works projects

may include hydropower, water supply (municipal/industrial;

irrigation), and recreation.

 

 b. Command Goals and Objectives. The Chief of Engineers 

establishes a set of goals and objectives at the beginning of his tour

(as commander of the Corps) and they generally remain unchanged for

the duration of his tenure. However, the Chief can revise his goals

as may be appropriate based on significant events impacting on the

Corps missions. The goals are selected to mesh with the goals of the

Army and to meet the Corps' long-term management needs. These goals

and objectives are used to focus Corps-wide efforts on improving

performance. Major Subordinate Commands (MSC), District Commands

(DC), field operating activities (FOA), and laboratories, establish

programs supporting the command goals and objectives, tailoring their

supporting objectives to local situations and periodically assessing

progress to assure supporting objectives are met.

 c. Civil Works Program Goals and Objectives. Prior to the

beginning of each fiscal year the Assistant Secretary of the Army for

Civil Works (ASA(CW)) establishes a set of broad goals for the Civil

Works Program. The Director of Civil Works establishes specific

objectives to accomplish each goal and identifies specific actions for

each objective and the office responsible to accomplish the action.

This process establishes the management and direction of the Civil

Works Program for each fiscal year and provides a framework of action

and accountability to meet Civil Works goals.
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 d. Command Inspections. At the direction of the Chief, 

Headquarters staff elements undertake on-site inspections of MSCs,

DCs, FOAs, and laboratories, to review compliance with delegated

authorities. Items inspected include the assigned missions and

functions of the MSC and FOA; establishment of programs and

accomplishments in support of the command objectives; future planning

and programming; impacts of HQUSACE policies and guidance; and special

topics selected by the Chief. Reports are prepared by the inspecting

team and submitted to the Chief for approval and resolution of

findings. The inspection cycle is three years.

 e. Weekly Significant Activities Report (WSAR). The WSAR is a

very important source of information for the Chief of Engineers, and

provides the Chief a quick view of the key and significant events that

are happening across the U.S. Army Corps of Engineers and about which

he should be informed. The intent of the report is to provide a

snapshot of significant achievements, key decisions, National

Performance Review initiatives, critical meetings and other such

events that have taken place each week at district, division,

laboratory, and Headquarters level. This report does not replace

established emergency operations reporting procedures or Serious

Incident Reports.

 f. Corps-Wide Areas of Work Responsibility (ER 5-1-10). As an

integral part of the Corps normal business practices, USACE activities

have been assigned geographical or functional responsibilities to

ensure customers receive the best corporate response to their needs

and expectations. Each USACE activity is expected to conduct business

in accordance with these responsibilities and to be open and flexible

to entering into voluntary agreements with each other to jointly

satisfy a customer’s needs when it is in the best interest of the

customer and the Corps to do so. This voluntary agreement, which is

referred to as “brokering”, allows for customer access to the total

capabilities of the Corps regardless of geographical location. USACE

activities are expected to advise customers of how the Corps normally

conducts business and to encourage customers to follow these business

practices. When the customer desires to deviate from normal Corps

business practices, the USACE activity with whom the customer desires

to work must broker the work with the affected USACE activities or

obtain written approval from HQUSACE prior to executing the work.

 

4-2. Organizational Structure.

 a. Headquarters, U.S. Army Corps of Engineers (HQUSACE). Prior

to 1979 the Corps of Engineers was an Army staff element. The Office

of the Chief of Engineers (OCE) supervised all Corps activities, of

whatever nature. The Corps became a major Army command (MACOM) in

1979. Now OCE is confined in its use to the portion of the Chief's

staff that is involved in direct support of the Army staff. HQUSACE

is used as the designation for the portion of the Chief's staff

involved in supervision of the missions assigned to the Corps as a

MACOM. HQUSACE assists the Chief of Engineers in planning, directing,

and controlling the civil works activities assigned to the Chief. The

organization of HQUSACE is shown in Figure 4-1. The role of

Headquarters is to develop the policies, procedures, and business

processes needed to make Corps programs run well and to provide

oversight of the Corps programs. Headquarters also conducts policy

compliance review to ensure that there is uniform application of

established policies and procedures nationwide and identifies policy

issues that must be resolved in the absence of established criteria,
Executive

Office

Office of

Congressional Affairs

Secretary of the

General Staff

Office of the

Chief of Engineers

(Pentagon)

Commander's

Planning Group

Office of Interagency and

Intergovernmental Support

Directorate of

Civil Works

Office of the

 Deputy Chief of Staff

for

Corporate Information

Office of

Equal Employment

Opportunity

Directorate of

Military Programs

Directorate of

Human Resources

Safety and

OccupationalHealth Office

Directorate of

Real Estate

Office of the

Chief of Counsel

Office of the

Principal Assistant

Responsible for

Contracting (PARC)

Directorate of

Logistics

Offce of

Public

Affairs

Small

Business

Office

Audit

Office

Office of Security, Plans

and Operations

Directorate of

Research and

Development

Office of the

Engineer

Inspector General

Figure 4-1 Organization of

HQUSACE 

4-3
Executive Office

Director of Civil Works

Office of

Directorate

Support

Assistant

Directors

Planning

Division

Policy

Division

Program

Management

Division

Engineering

Division

Operations

and Readiness

Division

Figure 4-2 Organization of Directorate of Civil Works 

4-4
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4-5

guidance, regulations, laws, codes, or where judgment plays a

substantial role. Districts execute the Corps program which includes

technical review of their products and development and implementation

of a Quality Control (QC) plan. Each division’s primary

responsibility is to oversee the execution of the program by the

districts. Through appropriate Quality Assurance (QA) mechanisms, the

division assures that the districts are able to plan, design, and

deliver quality projects on schedule, within budget, that meet

customer expectations. 

 b. Directorate of Civil Works. The Deputy Commanding General

for Civil Works is responsible to the Commander USACE for staff

supervision of policy, planning, programming, design and construction,

operation, and maintenance of the Corps civil works activities. Such

works include management and improvement of rivers, harbors, and

waterways, for navigation, flood control, regulatory, environmental,

multiple-use purposes and shore protection projects or programs. The

Director is also responsible for the administration of laws to protect

and preserve the navigable waters of the United States; for the

conduct and direction of emergency operations pursuant to special

authorities for flood control and navigation; and for the

accomplishment of special projects as assigned. The organization of

the Civil Works Directorate in HQUSACE is shown in Figure 4-2.

 c. Major Subordinate Commands (MSC) and District Commands (DC). 

The bulk of the Civil Works program assigned to the Chief of Engineers

is accomplished through delegation to field officers, under the staff

supervision of HQUSACE.

 (1) U.S. Army Engineer Divisions. These supervisory offices,

also known as Major Subordinate Commands (MSC), have jurisdiction over

specified geographical areas, usually based on watershed boundaries. 

The role of a division is to have oversight of district programs, to

ensure that district programs are producing quality products on time

and within budget, and to support policy compliance. Divisions no

longer perform technical review. These reviews are performed at the

district level. In discharging these responsibilities, division

commanders:

 (a) Administer the mission of the Chief of Engineers involving

civil works planning, engineering, construction, operation and

maintenance of facilities and related real estate matters. 

 

 (b) Command and supervise districts assigned to their control. 

This supervisory responsibility includes review and approval of the

major plans and programs of the districts, implementation of plans and

policies of the Chief of Engineers and review and control of district

operations. (ER 10-1-2) MSCs evaluate and recommend changes to the

district’s business and quality control processes and ensure that the

districts deliver products and services in innovative and costefficient ways. MSCs support project priorities established by

districts and provide the necessary resources to meet commitments made

to customers.

 (2) U.S. Army Engineer Districts. These are the principal

planning and project implementation offices of the Corps, also known

as District Commands (DC). The role of a district is to execute

projects on schedule, within budget, and in compliance with law and

policy. Districts perform technical reviews. In executing their

programs, the districts focus on establishing and maintaining 
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effective and continuous interface with customers to ensure that the

customers’ requirements and expectations are met or exceeded. In

discharging their responsibilities, district commanders:

 (a) Prepare water and related land resources studies in

response to specific congressional resolutions.

 (b) Conduct engineering design and operations and maintenance

studies.

 (c) Construct civil works facilities.

 (d) Operate and maintain major water resource projects.

 (e) Administer the laws for the protection and preservation of

the navigable waters of the United States.

 (f) Acquire, manage and dispose of real estate in connection

with civil works functions and assigned military functions. (ER

10-1-2)

 d. Boards and Commissions. Organizations which advise and

support the Chief of Engineers in civil works functions include:

 (1) Coastal Engineering Research Board (CERB). This advisory

board provides policy guidance and reviews plans for research and

development in coastal engineering and recommends priorities of

research projects. (ER 10-1-16)

 (2) Board of Engineers for Rivers and Harbors (BERH). In

accordance with Section 223 of WRDA 1992, the BERH ceased to exist in

1993.

 (3) Mississippi River Commission (MRC). The MRC’s jurisdiction

extends from the Mississippi River’s headwaters in Minnnesota to its

mouth in Louisiana. The statutory mission of the MRC is to "take into

consideration and to mature such plan or plans and estimates as will

correct, permanently locate, and deepen the channel and protect the

banks of the Mississippi; improve and give safety and ease to the

navigation thereof; prevent destructive floods; promote and facilitate

commerce, trade, and the postal service and, when so prepared and

matured, to submit to the Secretary of the Army a full and detailed

report of these proceedings and actions and of such plans with

estimates of the cost thereof for the purposes aforesaid to be by him

transmitted to Congress" (33 USC 647). MRC and its work are funded

separately from other Civil Works projects under "Mississippi River

and Tributaries (MR&T) Appropriations Accounts." (ER 10-1-5)

 (4) Chief of Engineers Environmental Advisory Board (EAB). The

Environmental Advisory Board consists of six members selected by the

Chief of Engineers representing a broad range of expertise and

experience in environmental matters. The Board serves as advisor to

the Chief of Engineers primarily for environmental policy and

procedural matters. (OM 15-2-1)

 (5) Board of Contract Appeals. This board is established under

the Contracts Disputes Act of of 1978 (Public Law 95-563) to decide

disputes arising under Civil Works contracts of the Corps of

Engineers. (Charter issued 6 August 1979; revised 20 January 1984)
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 e. Research and Development (R&D) and Field Operating

Activities (FOA).

 (1) Water Resources Support Center (WRSC). WRSC provides

information, advice and guidance to HQUSACE, MSCs and DCs concerning

water resources (including navigation) data collection, processing and

monitoring, including remote sensing; performs research and

development in the field of hydrologic engineering, and provides

expert services to MSCs and DCs in this field; collects, compiles and

distributes data and statistics on waterborne commerce and vessel

movements in the United States, on U.S. commercial ports and waterway

facilities, on lock characteristics and performance, and on Corps

dredging activities; and, organizes, manages and performs special

studies for meeting national water resources needs and objectives. 

The Institute for Water Resources; the Hydrologic Engineering Center,

Davis, California; and the Navigation Data Center (with its Waterborne

Commerce Statistics Center, New Orleans, Louisiana) are assigned to

WRSC. (ER 10-1-23)

 (2) U.S. Army Engineer Waterways Experiment Station (WES). WES

conducts studies through the operation of a complex of laboratories in

the broad fields of coastal engineering and nearshore oceanography,

hydraulics, soil mechanics, concrete, engineering geology, rock

mechanics, pavements, expedient construction, and environmental

relationships. WES provides MSCs and DCs specialized consulting

services and training in coastal engineering. WES accomplishes model

studies for site-specific MSC and DC design problems. The individual

laboratories are: the Information Technology Laboratory; the

Hydraulics Laboratory; the Geotechnical Laboratory; the Structures

Laboratory; the Environmental Laboratory; and the Coastal Engineering

Research Center (CERC). (ER 10-1-8)

 (3) U.S. Army Construction Engineering Research Laboratory

(CERL). CERL develops methods of advancing the concepts and

technology of the design, construction, operation, and maintenance of

all types of Federal structures and facilities, through research,

investigation, and analytical studies. (ER 10-1-26)

 (4) U.S. Army Cold Regions Research and Engineering Laboratory

(CRREL). As the Army Laboratory for science and technology in the

cold environments of the world, CRREL conducts and coordinates

research and surveillance of technology applicable to the Army's needs

in those geographic areas of the world where cold presents a severe

problem. It also has responsibility for the research project on Ice

Engineering. (ER 10-1-25) 

 (5) U.S. Army Engineer Topographic Engineering Center (TEC). 

TEC accomplishes research and development into the topographic

sciences; provides scientific and technical advisory service to meet

environmental design criteria requirements of military material

developers; provides environmental resource inventory requirements of

military and non-military programs. (ER 10-1-45)

4-3. Other Institutions for Management of River Basin Operations. 

The Water Resources Council (WRC) published a report in August 1967,

on "Alternative Institutional Arrangements for Managing River Basin

Operations." This report describes institutional arrangements

developed and used to improve basinwide management of the Nation's

water and related land resources. The report identifies eight

patterns of administrative organization which can be used to integrate

management efforts: Interstate Compact; Federal Interstate Compact;

River Basin Commission; Basin Inter-Agency Committees; Regional
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Federal-State Commissions (Appalachian Regional Commission);

Intra-State Special District (Soil and Water Conservation Districts);

Federal Regional Agency (Tennessee Valley Authority); and a Single

Federal Administrator (Colorado River):

 a. Interstate Compact. This is an agreement between two or

more states whereby they obligate themselves to the terms of the

compact. Such a compact must be consented to by Congress, but does

not obligate the Federal Government to the terms and conditions of the

compact. The Federal Government often assists, through a Federal

representative, in the development of the compact and in the work of

any compact-created agency. Interstate compacts can serve a wide

range of functions, from the simple one-time allocation of the waters

of an interstate stream to the vesting of enforcement and regulatory

powers in an entity whose judgments are binding upon the member states

(for example, as to water quality). A compilation of interstate

compacts relating to water resources is contained in House Document

319, 90th Congress, "Documents on the Use and Control of the Waters of

Interstate and International Streams".

 b. Federal-Interstate Compact. The most significant difference

between this agreement and the interstate compact is that the United

States is a signatory party. Except as stated in the compact, the

exercise of Federal powers is subjected to the terms and conditions of

the compact and the authority of any compact created agency. The

compact form must, as with the interstate compact, be consented to by

the Congress. The Federal-Interstate compacts have been used to

implement, in a single basin authority, the full range of managerial

planning, construction, and operation and maintenance functions. The

first of two such compacts, the Delaware River Basin Compact, is

administered by the Delaware River Basin Commission. The second is

the Susquehanna River Basin Compact administered by the Susquehanna

River Basin Commission. In granting consent to the compacts, Congress

attached reservations to prevent impairment of the future exercise of

Federal power and to avoid limitations on congressional power to pass

laws inconsistent with the compact.

 c. River Basin Commissions (Title II). River basin commissions

may be established by the President pursuant to Title II of the Water

Resources Planning Act of 1965. WRC and not less than one-half of the

states within which the subject basin lies must concur. Members of a

commission include representatives of interested Federal agencies and

the affected states. The commissions may conduct planning and

coordinating activities, which may include preparing and keeping

up-to-date a comprehensive plan for water and related land resources

development within the basin; recommending priorities for data

collection, planning, and construction of projects; and submission to

WRC of recommendations for implementing the plan. They would not have

authority to construct or operate projects. There currently are no

Title II river basin commissions (six such commissions at one time

created under Title II have been terminated).

4-4. Management and Administrative Controls.

 a. Guidance and Controls. The goal of HQUSACE management

efforts is to assure timely completion of quality studies and projects

and otherwise accomplish continuing operations, maintenance and

regulatory responsibilities assigned to the Corps, as most needed to

satisfy existing public concerns and future needs. Management is

founded on issuance, for the uniform observance by all internal Corps

offices, of guidance on all aspects of Corps activities in the form of

Engineer Regulations (ERs), Engineer Manuals (EMs), Engineer Circulars
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(ECs) and Engineer Technical Letters (ETLs). In special

circumstances, less formal "guidance letters" (e.g., Policy Guidance

Letters (PGLs)) are addressed directly to the MSCs and DCs. For

dissemination of information, Engineer Pamphlets (EPs) are sometimes

issued. Procurement guidance is provided in an Engineer Federal

Acquisition Regulation Supplement (EFARS) which establishes uniform

procedures to be followed by the Corps in connection with the making,

administration and termination of contracts, and the resolution of

claims and appeals. Many individual project decisions are subject to

review and approval in HQUSACE prior to implementation although, based

on criteria set forth in the published guidance, MSCs and DCs are

empowered to make most determinations without referral. Conferences

are occasionally needed to resolve questions and reach HQUSACE/MSC and

DC agreement on unusual or particularly complicated problem solutions. 

In connection with planning, standing guidance specifically provides

for Issue Resolution Conferences during the course of MSC and DC

feasibility or preconstruction planning and engineering studies. 

Civil Works program management data is required quarterly from the 

MSCs and DCs under the Command Management Review (CMR). CMR requires

data on various performance indicators--both measurable "bottom line"

indicators and influencing indicators which, in a project delivery

cycle format, provide comprehensive program management information. 

For civil works, CMR includes progammatic/financial and manpower

planning data; project planning (including status of reconnaissance

reports, cost sharing agreements and feasibility studies), design,

real estate, construction and operations data; and data on regulatory

and readiness programs.

 b. Program and Project Management (ER 5-1-11). The Program and

Project Management Business Process (PMBP) is the corporate management

approach for execution of all USACE programs and projects under

business processes that are uniform throughout the command. The PMBP

emphasizes the importance of project teams and the role of the project

manager, whose focus is on the overall process and the members of the

team, who are empowered to act on behalf of their functional

organizations. It focuses attention on the end results -- execution

of projects and programs, and customer satisfaction. The PMBP is

appicable to all USACE activities (i.e., laboratories, field operating

activities (FOAs), and centers). Each commander has the

responsibility for ensuring his or her organization is aligned to

support the PMBP. The essential elements of the USACE PMBP are

outlined below.

 (1) Program and Project Management Imperatives -“Above the

Line”.

These are to be followed across USACE:

 (a) Consistent project definition;

 (b) Each project has one project manager (PM);

 (c) The PM is the team leader;

 (d) The PM is the primary point of contact with the customer;

 (e) Every project will be managed with a management plan;

 (f) PMs manage project resources, data, and commitments;

 (g) The Deputy for Project Management (DPM) has programmatic

oversight for all work;

 (h) All work will be managed using the project management

automation information systems (AIS) and the PMBP.
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 (2) Program and Project Management Imperatives -“Below the

Line”.

Authorities not detailed in ER 5-1-11 or prohibited in other

regulations remain under the purview of individual commanders.

 (3) Project Management. This is the component of the PMBP used

by USACE for delivering individual projects to its customers. The

project management business process embodies leadership, systematic

and coordinated management, teamwork, partnering, effective balancing

of competing demands, and primary accountability for the life-cycle

(including the warranty period and, often, operation and maintenance)

of a project. It reflects the USACE corporate commitment to provide

customer service that is seamless, flexible, effective, efficient, and

focuses on the customers’ expectations, participation, and

satisfaction, consistent with law and policy. The individual PM is

assigned by the commander or DPM and serves as an advisor and

consultant to the corporate board and each of its members. The PM is

responsible and accountable for successful completion and delivery of

assigned projects to customers within established costs, schedules and

quality parameters. The PM can make district commitments within

preassigned constraints as defined in the management plan in

coordination with the functional elements. The PM is responsible for

ensuring that the organization speaks with one voice by coordinating

all matters relating to the project, and acting as the customer’s

representative within USACE to ensure requirements are conveyed,

understood, and met. Each project will have a single PM regardless of

how many USACE organizations are represented on the team. The PM

will ensure that the direction and efforts of the team are unified,

focused, and coordinated. 

 (4) Program Management. This is the component of the PMBP used

by all USACE levels to manage a collection of similar projects,

activities and services derived from assigned missions. It consists

of the development, justification, management, defense and execution

of programs within available resources, in accordance with applicable

laws, policies, and regulations, and includes accountability and

performance measurements. Under program management, the entire

district’s or division’s programs, projects and other commitments are

aggregated for oversight and direction by the organization’s senior

leadership. Program management takes project management to a greater

level of interdependencies and broadens the corporate perspectives and

responsibilities.

 c. Financial Resources Management.

 (1) Budget Process. The Programs Management Division of

HQUSACE directs the annual development of the Civil Works budget and

funding activities of studies and projects throughout the year. In

districts and divisions, this function is performed by the Program and

Project Management Office. Detailed information is contained in

Chapter 8.

 (2) Procurement of Planning Investigation Services. The Corps

enters into a contract for services for planning studies upon the

signature of the Contracting Officer, usually a district or division 

commander. When a contract for services for planning studies is

prepared, the immediate responsibility for a successful contracting

effort lies with the project manager who functions as the Contracting

Officer's Authorized Representative. The project manager furnishes

the contracting division with a proposed scope of work developed by

the appropriate team members who have the requisite technical

expertise. When the request for proposals is prepared, it is
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advertised in the Commerce Business Daily and then generally

competitively negotiated. In competitive negotiation, a list of

criteria against which the proposers will be judged is announced in

the solicitation. These are such items as price, management ability,

previous experience in similar work, etc. The criteria may vary with

the nature of the work and internal numerical weights are assigned by

the evaluation board (of the Corps soliciting office). The weights to

be applied are not revealed to the prospective contractors but the

criteria are listed in the solicitation in order of priority. A

proposed award to other than the low (price) proposal must be

justified in writing, as must a sole-source procurement. 

 (a) Should it be considered that the requirement can only be

filled by a professional engineer, the specialized method of

procurement from an Architect-Engineer firm is used. This, too, is

advertised and the responding firms are ranked in order of preference

by a selection board of engineers. Negotiations are then carried out

with the first ranked firm. If the firm is able to agree to a fair

and reasonable price, award is made. If not, the negotiator moves on

to the second ranked firm, and so on.

 (b) The Contracting Officer's Authorized Representative has the

responsibility to monitor and assure the effective performance of the

contractor. As a control, he or she may initiate action to withhold

partial and final payment if the contractor does not perform in

accordance with the contract. He or she also prepares the

contractor's performance rating if it is an Achitect-Engineer

contract. (EFARS Section 36, Part 6)

 d. Miscellaneous Controls. The objective of the Paperwork

Reduction Act of 1980, the Paperwork Reduction Reauthorization Act of

1986, and prior legislation, is to reduce the paperwork load on

individuals and private industry by Federal agencies. Whenever

information is to be collected from ten or more non-government

employees by the use of identical forms, the Federal agency concerned

must first obtain the approval of the Office of Management and Budget.
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CHAPTER 5

PLANNING STUDIES

5-1. Authorization of Studies. 

 a. Authorization. The Corps undertakes studies of water and

related land resources problems and opportunities in response to

directives, called authorizations, from the Congress. Congressional

authorizations are contained in public laws, and in resolutions of

either the House Transportation and Infrastructure Committee or the

Senate Environment and Public Works Committee. Study authorizations

are either unique, study-specific authorities; or standing, program

authorities, usually called continuing authorities, under which

specific studies related to the program authority may be done at the

discretion of the Secretary of the Army or the Chief of Engineers. 

The focus of the studies is on determining whether a Federal project

responding to the problems and opportunities of concern should be

recommended, within the general bounds of Congressional interest in

authorizing Federal participation in water resources development (see

paragraph 6-1).

 

 b. Naming. Whenever the name of a project is established by

separate legislation, that designation shall be used exactly as stated

in the law. Otherwise, study and project titles will be assigned

during the reconnaissance or feasibility study, based on a nearby

geographic feature; i.e., town, river or mountain. Projects which

impound water are designated as "lakes". 

 c. Deauthorization. Section 710 of the Water Resources

Development Act (WRDA) of 1986 (PL 99-662) specifies that authorized

studies will be deauthorized if study funds have not been appropriated

for five fiscal years preceding the submission of the annual list, and

if funds are not appropriated within 90 days of submittal of the list. 

Section 1001 of that act specifies a similar mechanism for

deauthorization of projects (authorized for construction). 

5-2. Types of Planning Studies. There are several types of planning

studies as discussed in the following paragraphs. Most studies are

conducted in two phases and include the reconnaissance phase and the

feasibility phase.

 a. Reconnaissance Phase. The reconnaissance phase is fully

funded by the Federal Government and is usually completed in 12

months. 

The reconnaissance phase shall accomplish the following four essential

tasks:

 (1) Determine that the water and related land resources

problem(s) warrant Federal participation in feasibility studies. 

Defer comprehensive review of other problems and opportunities to

feasibility studies;

 (2) Define the Federal interest based on a preliminary

appraisal consistent with Army policies, costs, benefits and

environmental impacts of identified potential project alternatives;

 (3) Prepare a Management Plan; and,

 (4) Assess the level of interest and support from non-Federal

entities in the identified potential solutions and cost sharing of the 
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feasibility phase and construction. A letter of intent from the nonFederal sponsor stating the willingness to pursue the feasibility

study described in the Management Plan and to share in the costs of

construction is required.

The reconnaissance phase is completed upon the signing of the

Feasibility Cost Sharing Agreement (FCSA) by the Corps and the nonFederal sponsor. The feasibility study cannot be initiated until the

FCSA is signed.

 b. Feasibility Phase. The feasibility phase can take up to

four years to complete and is cost shared equally between the Federal

Government and the non-Federal sponsor. At least 50 percent of the

non-Federal share (25 percent of the total feasibility phase cost)

will be in cash; the remaining 50 percent of the sponsors share may be

contributed as in-kind products or services. Feasibility phase cost 

sharing is not applicable to navigation studies on the Nation's inland

waterways. The non-Federal cost share for feasibility studies in

American Samoa, Guam, Northern Mariana Islands, Virgin Islands, and

the Trust Territory of the Pacific Islands, is reduced by $200,000 for

each study (Section 1156 of WRDA 1986). The report results in

recommendations to Congress for or against Federal participation in

solutions to the water and related land resources problems and

opportunities identified in the study. A recommendation for Federal

participation is generally a recommendation for construction

authorization. 

 

 c. Legislative Phase I Studies. This is a special type of

study, where only continuation of planning, rather than construction,

was authorized for selected projects in the WRDAs of 1974 (Public Law

93-251) and 1976 (Public Law 94-587). For these studies, which are

subject to a two-stage authorization process, a new feasibility report

would be submitted to Congress for construction authorization.

 d. Review of Completed Projects Studies. This type of study is

in response to the standing authority of Section 216 of the Flood

Control Act of 1970, which authorizes studies to review the operation

of completed Federal projects and recommend project modifications

"when found advisable due to significantly changed physical or

economic conditions... and for improving the quality of the

environment in the overall public interest". An initial appraisal is

conducted using Operation and Maintenance (O&M), General funds to

determine whether or not a study is warranted. If it is determined

that further study is warranted, these studies are conducted in the

two phase study process in the same manner as feasibility studies.

 e. Continuing Authorities Studies. These types of studies are

in response to one of the body of standing study and construction

authorities listed in Table 2-1. With some exceptions, they are

conducted in the same two-phase study process as feasibility studies

specifically authorized by Congress.

5-3. Preconstruction Engineering and Design (PED). Continuation of

planning efforts following completion of the feasibility report is

discussed in Chapter 9. The PED phase (including preparation of the

General Reevaluation Report (if needed), Design Memorandums and Plans

and Specifications) will be cost shared in accordance with the

authorized construction cost sharing for the project. During the PED

phase, non-Federal financial contributions are to be 25 percent of the

total PED cost, with offsetting credits or debits during the first

year of construction.
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5-4. Planning Assistance to States. Section 22 of Public Law 93-251

authorized cooperation with states in the preparation of comprehensive

plans for the development, utilization and conservation of the water

and related resources of drainage basins located within the boundaries

of the state. Expenditures in any one state cannot exceed $500,000 in

any one year, as amended by Section 221 of WRDA 1996. Federal input

to the state planning program is on an effort or service basis in

lieu of an outright grant. Section 214 of Public Law 89-298 and

Section 204 of Public Law 91-611 provide separate authority to

undertake studies in New York and Puerto Rico; however, funding for

planning assistance to New York and Puerto Rico shall ordinarily be

funded under Section 22. Section 605 of Public Law 96-597 defines the

Virgin Islands and the territories in the Pacific as "states" for the

purpose of eligibility under Section 22 of Public Law 93-251. Section

319 of WRDA 1990 authorizes the Corps to establish, collect, and

expend appropriate fees from states and other non-Federal public

bodies to recover approximately 50 percent of the total cost of

providing assistance under the Planning Assistance to States Program. 

Section 208 of WRDA 1992 gives federally-recognized Indian Tribes the

same status as states and territories under the Planning Assistance to

States Program.

5-5. Corps Planning Guidance. Detailed planning guidance essential

for the conduct of Corps planning studies is contained in ER 1105-2-

100 which incorporates the Water Resources Council’s (WRC) Principles

and Guidelines (P&G) in its entirety. 

5-6. The Planning Process. The WRC’s P&G state that "the Federal

objective of water and related land resources project planning is to

contribute to national economic development consistent with protecting

the Nation's environment, pursuant to national environmental statutes,

applicable executive orders, and other Federal planning requirements." 

Accordingly, this is the primary objective of the Federal water

resources planning process. Ecosystem restoration is a Federal

planning requirement and a Corps priority mission. In water and

related resources planning which involves restoration of ecosystems,

contributions are to National Ecosystem Restoration (NER). As

required by the P&G, and with the advent of non-Federal study cost

sharing, state and local water resource objectives are also

incorporated into the planning process. The planning process consists

of a series of steps that identify and respond to the problems and

opportunities associated with the Federal objective and specific state

and local concerns and culminates in the selection of a recommended

plan. 

 a. Major Planning Steps. The planning process consists of the

following six major steps:

 (1) Specify Problems and Opportunities. The problems and

opportunities statements should be framed in terms of the Federal

objective and specific state and local concerns. The statements

should be constructed to encourage a wide range of alternative

solutions with identifiable levels of achievement. Statements should

encompass current as well as future conditions and the planner should

be cognizant that initial expressions of problems and opportunities

may need to be modified during the study.

 (2) Inventory and Forecast of Conditions Without a Plan. The

inventory and forecast step quantifies and qualifies the planning area

resources important to the identified water resources problems and

opportunities, now and in the future in the absence of a plan. This
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step is a statement of the without project condition. It is the most

important step in the planning process because it is the baseline from

which alternative plans are formulated; benefits are measured; and

impacts are assessed. Since benefits and impact assessment are the

bases for plan comparison and selection, clear definition and full

documentation of the without project condition are essential. For

ecosystem restoration studies, inventory and forecast of past, present

and future environmental conditions require that some form of

qualitative measurement be defined and used. Where indicators or

other units of measure of ecosystem function or structure are used,

the models used to develop them must be fully described.

 (3) Formulate Alternative Plans. An alternative plan consists

of a system of structural and/or nonstructural measures, strategies,

or programs formulated to alleviate specific problems or take

advantage of specific opportunities associated with the water and land

related resources in the planning area. Alternative plans are to be

formulated in a systematic manner to ensure that all reasonable

alternative solutions are evaluated. A full range of alternative

plans are identified at the beginning of the planning process and are

screened and refined in subsequent iterations throughout the planning

process. However, additional alternative plans may be introduced at

any time. In the reconnaissance study, the potential non-Federal

sponsor should be apprised of the need to develop alternative plans

during the feasibility study and the cost of the analyses to be

undertaken. A plan that reasonably maximizes net national economic

development (NED) benefits, consistent with protecting the nation's

environment, is to be identified as the NED Plan in the feasibility

report. Other plans which reduce net NED benefits in order to further

address other Federal, state, local and international concerns should

also be formulated. Specifically, plans contributing to ecosystem

restoration may be formulated. Plans should be in compliance with

existing statutes, administrative regulations, and common law or

propose the required changes in law. Each alternative plan is to be

formulated in consideration of four criteria described in the P&G: 

completeness, efficiency, effectiveness, and acceptability. 

Appropriate mitigation of adverse effects is to be an integral part of

each alternative plan. Existing resources plans, such as state water

resources plans, are to be considered as alternative plans if they are

within the scope of the planning effort.

 (4) Evaluate Effects. The evaluation of effects is a

comparison of the with- and without-plan conditions for each

alternative. The evaluation is conducted by assessing or measuring

the differences between each with- and without-plan condition and by

appraising or weighting those differences. Four accounts are

established to facilitate evaluation and display effects of

alternative plans.

 (a) The national economic development (NED) account displays

changes in the economic value of the national output of goods and

services.

 (b) The environmental quality (EQ) account displays nonmonetary

effects on ecological, cultural, and aesthetic resources. Positive

and adverse effects of ecosystem restoration plans are displayed in

the EQ account as separate entries.
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5-5

 (c) The regional economic development (RED) account registers

changes in the distribution of regional economic activity (i.e.,

income and employment). 

 (d) The other social effects (OSE) account registers plan

effects from perspectives that are relevant to the planning process,

but are not reflected in the other three accounts (e.g., community

impacts, health and safety, displacement, and energy conservation).

 (e) Display of the national economic development account is

required. Since technical data concerning benefits and costs in the

NED account are expressed in monetary units, the NED account already

contains a weighting of effects; therefore, appraisal is applicable

only to EQ, RED and OSE evaluations. The period of analysis is to be

the same for each alternative plan. Planners shall also identify

areas of risk and uncertainty in their analyses and describe them

clearly, so that decisions can be made with knowledge of the degree of

the reliability of the estimated benefits and cost and of the

effectiveness of alternative plans. Flood damage reduction, storm

damage reduction, deep-draft navigation and major rehabilitation

studies will be performed using a risk-based analytical framework. 

This framework captures and quantifies the extent of the risk and

uncertainty, and enables quantified trade-offs between risk and cost.

 (5) Compare Alternative Plans. Plan comparison focuses on the

differences among the alternative plans determined in the evaluate

effects step. Differences should be organized on the basis of the

effects in the four accounts. Monetary and nonmonetary effects should

be comparably represented in narrative or display.

 (6) Plan Selection. The culmination of the planning process is

the selection of a recommended plan or the decision to take no action. 

After consideration of the various alternative plans, their effects,

the sponsor's and public comments, the NED plan is selected unless an

exception is justified and granted by the Assistant Secretary of the

Army. For plans having only ecosystem restoration outputs, the plan

with the greatest net ecosystem restoration benefits, and for plans

having both economic and restoration benefits, the plan with the

greatest net sum of economic and restoration benefits is to be

selected, consistent with both protecting the Nation’s environment and

Secretarial exception.

 b. Iteration. Planning is a dynamic process requiring

refinement and refocusing during the course of the study. Planners

should be flexible and responsive to internal and external data

development which could necessitate a reiteration of one or more of

the planning steps.

 c. Two-Phase Planning Process. Studies are generally to be

conducted under the two phase planning process. The two-phase

planning process consists of: (1) a reconnaissance phase culminating

in a certified Section 905(b) of WRDA 1986 Analysis and the negotiated

feasibility cost sharing agreement, and (2) the feasibility phase

resulting in the Corps feasibility report, expression of related views

by the Office of Management and Budget, and the ASA(CW) report to the

Congress. An expedited reconnaissance phase process was implemented

in FY 97. The new process will result in a Section 905(b) of WRDA

1986 Analysis of limited scope that complies with the requirements for

signing the FCSA. Most of the reconnaissance phase effort and funds

will be devoted to the preparation of the Project Study Plan (PSP). 
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5-6

 d. General Planning Considerations.

 (1) Interdisciplinary Planning. An interdisciplinary approach

should be used in planning to ensure the involvement of physical,

natural and social sciences personnel. The disciplines of the

planners should be appropriate to the problems and opportunities

identified in the planning process.

 

 (2) Public Involvement. Interested and affected agencies,

groups, and individuals (collectively termed the public) should be

provided opportunities to participate throughout the planning process. 

The purpose of public involvement is to ensure that Federal programs

are responsive to the needs and concerns of the public. The

objectives of public involvement are to provide information about

proposed Federal activities to the public; make the public's desires,

needs, and concerns known to decision makers; to provide for

consultation with the public before decisions are reached; and to take

into account the public's views in reaching decisions. Public

involvement and coordination with certain agencies (e.g., U.S. Fish

and Wildlife Service) is statutorily required in the planning process.

Coordination with other agencies and potential non-Federal sponsors

should be initiated as early in the planning process as possible. 

 

 (3) Federal-State Relationship in Planning. The governor or

his or her designated representative for each affected state is to be

contacted before initiating a study and such agreements as are

appropriate to carry out a coordinated planning effort are to be

established. The state agency or agencies responsible for or

concerned with water resource planning are to be provided with the

opportunity to participate on the study management team in defining

the problems and opportunities, scoping the study, and in review and

consultation.

5-7. Procedures for Evaluating NED. Procedures for evaluating NED

benefits of alternative plans are prescribed in P&G, Chapter II

(incorporated in Corps planning guidance as part of ER 1105-2-100). 

 a. Period of Analysis. The period of analysis for comparing

costs and benefits following project implementation shall be the

lesser of: (1) the period of time over which any alternative plan

would have significant beneficial or adverse effects; or (2) a period

not to exceed 50 years except for major multiple-purpose reservoir

projects; or (3) a period not to exceed 100 years for multiple-purpose

reservoir projects.

 b. Price Level. Project NED benefits and costs must be

compared at a common point in time. (P&G 1.4.10)

 c. Cost Estimating Procedure. Resources required or displaced

to achieve project purposes by project installation and/or operation,

maintenance, and replacement activities represent an NED (real) cost

and are evaluated as such. Resources required or displaced to

minimize adverse impacts or mitigate environmental losses are also

evaluated as NED costs. Costs incurred for features other than those

required for project purposes are not project costs and therefore not

NED costs. (P&G 2.12, ER 1110-2-1302)

 (1) Real and Financial Costs. Two concepts of cost are used in

Federal planning. The two are related but distinct; care must be

taken in their use. The two concepts are real cost and financial

cost, and each has several synonyms. Synonomous with real cost is
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economic cost, NED cost, alternative cost, opportunity cost, resource

cost and exchange value. Real costs are values of resources. 

Resources are valued at their opportunity costs, that is their value

in the best alternative use. Opportunity cost is the conceptual basis

for cost in economic analysis. Real costs are used exclusively in all

aspects of benefit-cost analysis, including benefit-cost ratios. Monetary cost and accounting cost mean the same as financial cost. 

Financial costs are any money outlays or accounting transactions or

entries whether or not they are payments for resources. Therefore, it

follows that the presence of financial payments do not necessarily

imply the presence of real costs.

 (2) Project Outlays. The real costs of project outlays include

the costs incurred by the responsible Federal entity and, where

appropriate, contributed by other Federal and non-Federal entities to

construct, operate, maintain, repair, replace, and rehabilitate a

project in accordance with sound engineering and environmental

principles. These costs include:

 (a) Postauthorization Investigation, Survey, Planning and

Design Costs. These costs are estimated based on actual current costs

incurred for carrying out these activities for similar projects and

measures.

 (b) Construction Costs. These costs include the direct cost of

project measure installation goods and services. They are estimated

based on current contract bid items in the project area or on the

current market value of purchased materials and services, etc.

 (c) Construction Contingency Costs. These are costs added to

estimates to reflect the effects of unforeseen conditions on estimates

of construction costs. They are computed as a percentage of the

estimated construction cost depending on the intensity of the

investigations performed, the variability of site conditions, and the

type of measure being installed.

 (d) Administrative Services Costs. These are costs associated

with the installation of project measures, including the cost of

contract administration, permits, inspection, etc. Estimates of these

costs are based on current costs of carrying out these activities on

similar projects or as a percentage of the construction cost when such

a rate is documented.

 (e) Fish and Wildlife Habitat Mitigation Costs. These are the

costs involved in implementing measures recommended to mitigate losses

of fish and wildlife habitat caused by project construction,

operation, maintenance, and replacement. The cost of implementation

of these measures is assumed to be expended concurrently and

proportionately with their related project measures.

 (f) Relocation Costs. These are project costs associated with

the requirements of the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970 (P.L. 91-646); and the

relocation of highways, railroads, utilities, and other existing

facilities. Real property acquisition relocation payments are

applicable to a displaced person, business or farm operation. The NED

cost of replacement housing is based on replacement in kind. Costs

over and above replacement in kind are not considered economic costs

for purposes of project evaluation. The relocation costs of railroads

and utilities shall be based on the costs of replacement in kind. In

the case of highways, the relocation cost shall be based on
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5-8

replacement that reflects the current traffic count and current

standards of the owner. (ER 1165-2-117, ER 405-1-12, EFARS)

 

 (g) Historical and Archaeological Salvage Operation Costs. 

These are project costs associated with salvaging artifacts that have

historical or archaeological values as described in Public Law 86-523

as amended. (See paragraph 3-4) 

 (h) Land, Water and Mineral Rights Costs. These costs include

all costs of acquiring the land, water and mineral rights required for

installing, operating, maintaining and replacing project measures. 

These costs are estimated based on current market values and the

actual costs incurred for carrying out similar acquisitions. The

value of easements is based on the difference in market value of the

land with and without the easement.

 (i) Operation, Maintenance, Repair, Replacement and

Rehabilitation Costs (OMRR&R). These costs represent the current

value of materials, equipment, services, and facilities needed to

operate the project and make repairs, replacements, and

rehabilitations necessary to maintain project measures in sound

operating condition during the period of analysis. Estimates are

based on actual current costs incurred for carrying out these

activities for similar projects and project measures. For those

projects currently in Preconstruction Engineering and Design (PED),

and those with Project Cooperation Agreements (PCAs) yet to be

submitted to HQUSACE as of 7 February 1991, estimates of OMRR&R costs

and schedules will need to be individually set out in the technical

document that accompanies the PCA and addressed in the non-Federal

sponsor's financing plan. In particular, estimates for Operation and

Maintenance and for future Repair and Rehabilitation must be

emphasized. Non-Federal sponsors need to specifically show their

capability to fund such costs in their financing plans accompanying

PCA packages. For projects in the initial stages of development, the

Project Management Plan is to include procedures for developing

detailed OMRR&R costs.

 (3) Associated Costs. These are costs other than those

involved directly in establishing, maintaining, and operating the

project, but necessary for realization of certain benefits of the

project. An example is the cost of on-farm drainage systems required

to produce the increased outputs on which benefit computations are

based.

 (4) Other Direct Costs. These are the costs of resources

directly required for a project or plan, but for which no financial

outlays are made. Consequently, they are included in the economic

costs of a plan but not in the financial costs. Other direct costs

also include uncompensated NED losses caused by the installation,

operation, maintenance, or replacement of project or plan measures. 

An example would be increased downstream flood damages caused by

channel modification.

 d. Benefit Estimating Procedures. Beneficial effects in the

NED account are increases in the economic value of the national output

of goods and services. These beneficial effects include: the direct

value of goods and services resulting from implementation of a plan;

increases in external economies caused by implementation of a plan;

and the value associated with the use of otherwise unemployed or

underemployed labor resources. (P&G 1.2 and 1.7.2) 
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 (1) Value of Goods and Services Resulting from a Plan. The

specific procedures for computing these NED benefits are presented in

P&G, Chapter II. Provision is made for computing other benefits when

documented in the planning report and consistent with P&G 1.7.2(b). 

That reference sets forth the general measurement standard:

willingness to pay as conceptually measured by the area under the

demand schedule. Since it is not possible in most instances for the

planners to measure the actual demand schedule, four alternatives are

permitted:

 (a) Actual or Simulated Market Price. Where the market is

considered reasonably adequate and competitive, the value of outputs

is based on probable exchange values that are determined by supply and

demand factors, and expressed in monetary terms by means of price, at

the time of project construction. Where project output is substantial

and is expected to influence market prices, a price midway between

that expected with and without the plan may be used to estimate the

total value. The appropriate market value for certain principal

agricultural commodities is specified by the WRC.

 

 (b) Change in Net Income. The benefit is measured by the

value of output of intermediate goods as inputs to producers with, as

compared to without, the plan.

 (c) Cost of the Most Likely Alternative. The expected costs of

production by the most likely alternative source that would be

utilized in the absence of the project may serve as a basis for

measuring the value of goods and services.

 (d) Administratively Established Value. Administratively

established values are values for specific goods and services

explicity set and published by WRC. An example is the unit-day value

for recreation.

 (2) Unemployed or Underemployed Labor Resources. These

benefits are conceptually an adjustment to the cost of the project,

because there is no economic cost associated with the use of an

otherwise unemployed resource. Benefits are limited to payments to

unemployed and underemployed labor resources directly employed in the

construction and installation of the plan for projects in areas

designated by WRC as having "substantial and persistent" unemployment. 

(P&G 2.11)

 e. Risk and Uncertainty. The degree of risk and uncertainty

associated with the project evaluation is displayed in a manner that

makes clear to decision makers the types and degrees of risk and

uncertainty believed to characterize the project; the adjustments in

project design that could be made to modify the degree of risk and

uncertainty; and the gains and losses in various dimensions that might

accrue from those adjustments. The guidelines (P&G 1.4.13) state that

planners have a role to characterize to the extent possible the

different degrees of risk and uncertainty and to describe them clearly

so decisions can be based on the best available information. A riskbased approach to water resources planning captures and quantifies the

extent of risk and uncertainty in the various planning and design

components of an investment project. The total effect of risk and

uncertainty on the project’s design and economic viability can be

examined and conscious decisions made reflecting an explicit trade-off

between risk and costs. Risk-based analysis can be used to compare

plans in terms of the likelihood and variability of their physical

performance, economic success and residual risks. 
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 f. Net Economic Benefit Analysis.

 (1) NED Plan. Net national economic benefits, the difference

between average annual benefits and average annual cost, is an

indicator of economic efficiency. The plan which provides for the

maximum net benefits is the NED plan. The Federal objective in water

resources planning other than for environmental restoration purposes

is achieved by maximizing net benefits in plans that are consistent

with protecting the nation's environment. A plan other than the NED

plan may be recommended if it would help respond to other

international, national, state or local concerns. Its acceptance,

however, requires an exception by ASA(CW) to the Federal NED objective

(during processing of the Federal preauthorization report before

submittal to Congress). The NED plan must be formulated, evaluated,

displayed, and carried forward in selectable form, even if it is not

the recommended plan. 

 (2) Determination of Net Economic Benefits. NED benefits and

costs are calculated at a common point in time, the end of the

installation period. This is accomplished by discounting the

benefits, deferred installation costs, and OMRR&R costs to that date

using the applicable project discount rate and bringing installation

expenditures forward to that date by charging compound interest at the

project discount rate from the date the costs are incurred.

 (3) Interest and Discount Rate. The interest rate for

discounting future benefits and computing costs, or otherwise

converting benefits and costs to a common time basis, is specified

annually by the Water Resources Council, pursuant to Section 80 of

WRDA 1974. Currently, however, HQUSACE obtains the rate directly from

U.S. Treasury Department. Under the existing formula it represents

the average yield during the preceding fiscal year on interest-bearing

marketable securities of the United States which, at the time the

computation is made, have terms of 15 years or more to maturity. The

rate may not be raised or lowered more than one quarter of one percent

for any year. The computation is made as of 1 October each year by

the Treasury Department and the rate thus computed is used during the

succeeding 12 months. Present policy for projects which have received

appropriations for construction is that the interest rates used to

prepare the supporting economic data presented to Congress in

justification of the initial appropriation of construction funds

(including land acquisition) will be retained in making subsequent

evaluations. This is a long standing administrative policy not to be

confused with the statutory "grandfather" clause in Section 80 of the

1974 Act. Section 80 freezes the interest rates at the rate in effect

immediately prior to 24 December 1968 for projects authorized prior to

3 January 1969 provided satisfactory assurances of local cooperation

were received by 31 December 1969. The administrative policy agrees

with the intent and purpose of the grandfather provision of Section

80. It recognizes that local interests may have undertaken financial

arrangements or other actions in anticipation of the project. The

appropriation of construction funds implies a commitment and raises a

strong and reasonable expectation that the project will be built. If

after initiation of construction, reformulation studies indicate that

another alternative solution to the basic problem is desirable, the

current discount rate is applicable to the new solution. Partial

reformulation to consider adding a new purpose or expanding an

existing purpose, to a project under construction, would also use the

current discount rate. An exception would be the addition of fish and

wildlife mitigation to an authorized project, for which it is

permissable to use the discount rate applicable to the authorized
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project. Reimbursement rates are based upon the computed rates except

for water supply, recreation and irrigation for which rates are

specified by legislation.

5-8. Procedures for Evaluating Environmental Quality (EQ) Outputs. 

Environmental planning is more similar to traditional water resources 

planning than it is dissimilar. Only two important differences

between planning for environmental outputs and planning for NED

outputs exist. Both result from the absence of readily estimated and

generally accepted monetized environmental benefits. This absence

means environmental outputs' worth must be based on some other sense

of value, and following from this, that a decision rule for

identifying best projects completely analagous (simple, quantified,

objective) to the NED decision rule does not exist. A reasonable and

workable decision rule can be developed however. In most other

respects planning for environmental outputs is the same as for NED

outputs. 

 a. Missions. Outputs considered Corps priority outputs change

or evolve over time. Chronologically, these descriptors have been

used to give specificity to, identify and label Corps environmental

missions: "mitigation", "fish and wildlife habitat restoration",

"protection", and "ecosystems restoration". Regardless of how

narrowly or broadly the mission is described, and how the range of

environmental outputs for which planning may be conducted is modified,

the same planning considerations and principles apply.

 b. Planning Considerations. Paragraph 5-6 (above, "The

Planning Process") applies generally to planning for environmental

outputs. Alterations are in some cases appropriate. For example, for

mitigation, specification of problems and opportunities would be

truncated. Those portions of paragraph 5-7 (above, "Procedures for

Evaluating NED") that deal specifically with monetized benefit

estimation are not relevant. Much of the rest of the paragraph is

relevant.

 c. Special Emphasis. Risk of redundancy notwithstanding,

several planning considerations are worth special emphasis. First,

environmental planning is quantified planning. Outputs should be

precisely defined, with appropriate units of measurement. Second,

formulation of alternative plans and plan scales is as much a part of

environmental planning as it is for NED planning. All or nothing, or

inappropriately limited options available for decision makers is not

acceptable. Third, a justified plan is to be recommended. The

incremental cost analysis/cost effectiveness technique is an

acceptable tool for identifying the most cost effective and efficient

environmental restoration plan. The rationale for justification and

selection of a recommended plan must be fully documented and

reasonable.

 d. EQ Planning Procedures. Detailed environmental quality

planning procedures (i.e., how to do it) similar to those for NED

evaluation (i.e., the NED Manuals) have been developed as well as

comprehensive environmental restoration policy and procedures guidance

(i.e., what to do, with some how to do it information). The following

three key ideas, or fundamentals, from that guidance form a cursory

analysis.

 (1) Outputs. Environmental projects produce outputs. These

outputs are precisely defined, unambiguous and quantitative. Examples

might be habitat units of a particular species; habitat units of a mix
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of species representing a specified and recognized resource type,

ecosystem, community, etc.; biodiversity as expressed by changes in

biodiversity index "alpha"; and so on. Corps environmental projects

produce changes in the number of units of specified outputs: habitat

units, value of an index.

 (2) Significance. Significance is the environmental

counterpart to monetized NED benefits. It is the basis for valuing

the worth of outputs. Significance is established using standard

categories and criteria. The categories within which significance

arguments are made and evidence presented, as established by the WRC,

are legal/institutional, scientific/technical, and public perception. 

Supplementing the WRC categories the Corps adds the idea of scarcity. 

In other words, continuing scarcity is a necessary component of

significance. Outputs of Corps projects must be significant. The

significance of outputs is the justification for Corps environmental

investments, just as monetized benefits are the justification for

traditional water resources projects. Significance arguments must be

substantial and documented.

 (3) Cost Effectiveness. Each plan and each plan scale eligible

for recommendation must be the least cost way of achieving its level

of output. Furthermore, the cost effectiveness of plans and plan

scales should be supported by documentation. This will frequently

mean recognized techniques for formulating or discovering/isolating

cost effective plans should be employed. Except in simple cases, cost

effective plans and plan scales can not be formulated or

discovered/isolated by intuition, negotiation or trial and error.

Plans developed in these ways may be good plans, but they can not

usually be demonstrated to be cost effective plans. 

 e. Environmental Restoration Projects and Recreation. 

Environmental restoration projects are not recreation projects. 

Formulation proceeds for environmental outputs and justification is

based on the relative value of the those outputs. Recreation

associated with the outputs may be important ancillary information. 

Except in true mulitple-purpose projects, recreation is not the

principal justification.

 f. Decision Rule for Environmental Projects. The decision rule

is to recommend a justified environmental project. The best

environmental project is that project for which the value, as based on

significance and scarcity, of the last added increment of output just

equals the (minimum) cost of producing that increment. Another plan

or plan scale may be recommended as long as it is justified, and the

tradeoffs when compared to the best environmental project are evident

and reasonable.

5-9. Selection of a Recommended Plan. The planning process leads to

the identification of alternative plans that could be recommended; one

of which is to be designated as the NED plan, or the plan for

projects with environmental restoration outputs only, and/or the plan

for projects with economic and environmental restoration outputs

(multi-purpose). The culmination of the process is the selection of

the recommended plan from among the alternatives, or the decision to

take no action. This selection is based on a comparison of the

evaluated effects (NED, environmental, social, regional; tangible or

intangible) and consideration of how well each plan meets tests of

completeness, effectiveness, efficiency and acceptability and how well

they meet the planning objectives. For Federal development, the NED

plan, the plan for single-purpose environmental restoration projects
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or the plan for multi-purpose economic and environmental restoration

projects, is to be recommended unless there are believed to be

overriding reasons favoring the selection of another alternative which

would justify an exception by ASA(CW). In cases where local interests

strongly favor a plan other than the Federally supportable plan (NED

plan, plan for single purpose environmental restoration, plan for

multi-purpose economic and environmental restoration projects, or

ASA(CW) granted exception ) the locally preferred plan may be

recommended subject to special cost sharing.

 a. ASA(CW) Exceptions. ASA(CW) granted exceptions are cost

shared on the same basis as the NED plan (i.e., in accordance with

project cost sharing as outlined in Chapter 6) and becomes a Federally

supportable plan. Circumstances which would support a recommendation

for such an ASA(CW) exception and in which such exception would most

likely be granted are:

 

 (1) When another justified plan, less costly than the NED plan,

is the locally preferred plan.

 

 (2) When the local sponsor prefers a plan more costly than the

NED plan and the incremental costs for the increased development are

not justified, that plan may be recommended if the sponsor is willing

to pay 100 percent of the difference in costs between the Federally

supportable plan and the locally preferred plan. (The balance of

costs would be shared in accordance with policies outlined in Chapter

6.) The increment of cost between the Federally supportable plan and

the locally preferred plan will not be included in the benefit-cost

ratio calculation for the recommended project, but designated as a

sponsor's adjunct costs. Also, the locally preferred plan must have

outputs similar in-kind, and equal to or greater than, the outputs of

the Federally supportable plan.

5-10. Indian Lands. Indian Tribal Lands, which have been set aside

by treaty, may be acquired by eminent domain only where there is a

clear expression of congressional intent to abrogate or modify the

treaty. Pre-authorization reports must clearly identify Indian Tribal

Lands to be acquired to ensure that sufficient congressional authority

is stated.

5-11. Cost Allocation.

 a. Objective. The objective of the cost allocation is to

divide the project costs among the purposes served so that all

purposes share equitably in the savings realized from multipurpose

construction. In order to obtain an equitable distribution, the

project costs are allocated so that it can be determined that the

share of the costs to any purpose does not exceed its benefits and

that each purpose will carry at least its separable cost. A

preliminary cost allocation will be included in the feasibility

report.

 b. Legislation. There is no uniform cost allocation method

established by law. For the hydropower function, Section 5 of the

1944 Flood Control Act established that power costs should be repaid

through revenues. For municipal and industrial (M&I) water supply,

the Water Supply Act of 1958, as amended, allows for repayment over a

period of thirty years. However, current policy is for investment

cost allocated to hydropower and water supply to be paid during

construction. Existing law does not assign responsibility to any one

agency for making allocations of cost, except for a few projects
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covered by specific legislation. Thus, the agency responsible for

planning, constructing, operating, and maintaining the project is

assumed to be responsible for the cost allocation.

 c. Administrative Procedures. An inter-agency agreement, 12

March 1954, among the Departments of Army and Interior and the Federal

Power Commission recognized three methods of allocation as acceptable

for multipurpose reservoir projects. These were the Separable

Costs-Remaining Benefits (SCRB), the Alternative Justifiable

Expenditure, and the Use of Facilities methods. This agreement and

subsequent understanding standardized major principles and practices

for allocations at multipurpose projects.

 d. Principles and Guidelines. The P&G address cost allocation

briefly, and specifically permit the SCRB and Use of Facilities

methods. (P&G 1.9.3)

 e. Principles and Methods of Allocation. Selection of the

method to use in each case, except where specified by legislation,

must be based on informed judgment. For this reason, it is considered

undesirable to set rigid rules for assigning project costs among

project purposes. Although there are exceptions, the Corps considers

the SCRB method as preferable for general application. In most

instances this method provides an equitable distribution of total

project cost among the different project purposes. 

 (1) The objectives of the SCRB method of cost allocation are:

 (a) To allocate to each project purpose all costs associated

with inclusion of that purpose in the project. This amount, referred

to as incremental or separable cost, is the minimum that would be

allocated to the included purpose.

 (b) To allocate costs in such a way that costs allocated to a

purpose do not exceed the benefits associated with inclusion of that

purpose or the costs of the most economical alternative way of

providing equivalent benefits. This amount would be the maximum that

would be allocated to the included purpose.

 (c) To distribute joint (or common) costs among all project

purposes in such a way that each purpose shares equitably in the

advantages of multiple-purpose development as compared with

alternative single-purpose developments.

 (2) While the procedure is complex, the principle is simple. 

All project costs are distributed among the purposes on the basis of

the alternative costs that could justifiably be incurred to achieve

equivalent benefits by alternative means. The costs used in an

allocation include investment costs and operation, maintenance and

replacement costs, all reduced to a common time basis. These costs

may be expressed either as a present worth amount or an average annual

amount. For allocation purposes, costs and benefits are presented as

average annual equivalents.

 (3) Although the above principles and methods followed by the 

Corps in allocations have been developed largely in connection with

the determination of power costs, allocations are also necessary where

other reimbursable functions such as water supply and irrigation are

involved. Also, a cost allocation is required if the project includes

future water supply and/or recreation to determine if the costs

assigned to these purposes are within legal and administration
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limitations. Essentially the same principles and standards apply for

these other purposes.

 (4) Allocation of actual operation and ordinary maintenance

expenses is consistent with the basic allocation.

5-12. Identification of Non-Federal Sponsor Responsibilities in

Planning Reports. Section 221 of the Flood Control Act of 1970

requires that a written agreement be executed between the Secretary of

the Army and the non-Federal sponsor to identify the "items of local

cooperation" for Corps projects. Section 102 of WRDA 1986 added the

requirement for feasibility study cost sharing. The purpose of this

paragraph is to define what different types of planning reports must

say regarding general and specific responsibilities of the non-Federal

sponsor. This paragraph identifies those responsibilities in general

terms. The specific requirements of non-Federal sponsorship vary

according to the purpose(s) of the project. For definition of what

those specific requirements are, refer to the appropriate project

purpose chapter(s) (Chapters 12-20), presented later in this pamphlet.

 a. Legal Basis. It is important to identify general and

specific responsibilities of the non-Federal sponsor in the

recommendations of the planning report because that document will

serve as the basis of understanding among the Federal Government, the

non-Federal sponsor and third parties who have an interest in or are

affected by the project. It is a general principle that the

requirements specified in the law or document prevail despite any

administrative direction or guidelines issued previously or

thereafter.

 b. Preauthorization Studies. 

 (1) Feasibility Studies. Feasibility studies, irrespective of

funding source, will identify the extent of non-Federal sponsor

responsibilities and the ability of the non-Federal sponsor to fulfill

its responsibilities. In the reconnaissance phase of the feasibility

study, the sponsor will provide a letter of intent (LOI) stating both

that the sponsor intends to sign the Feasibility Study Cost Sharing

Agreement (FCSA) and understands the cost sharing requirements and

financing options for project implementation. Prior to initiating the

feasibility phase of the study, the Federal Government and the nonFederal sponsor will execute the FCSA, based on the Management Plan

which delineates the Federal and non-Federal responsibilities for the

study and prospective project. During the feasibility phase study,

and prior to the Feasibility Review Conference (FRC), a preliminary

draft PCA, a preliminary financial capability statement and supporting

financial information will be developed to establish implementability

of the project, as prescribed by the P&G. The process of developing

the draft PCA will ensure that the non-Federal sponsor has a clear

understanding of the type of agreement that they will be expected to

sign and its requirements prior to the start of construction. The

draft PCA will not be included in the draft feasibility report or

provided with it; rather, the PCA will be a subject for the FRC. In

addition, if flood control or agricultural water supply purposes are

to be included in the recommendations of the study, the report will

include an ability to pay analysis.
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 (2) Preconstruction Engineering and Design (PED). PED studies

presume that the recommended project will be authorized for

construction. Accordingly, PED studies should follow the same rules

defined in subparagraph e below (Postauthorization Studies). 

 c. Continuing Authorities Studies. For potential projects

pursued under the Continuing Authorities Program (Sections 14, 103,

107, 111, 205 and 208), the same procedures apply as for Feasibility

Studies above, except that the financial analysis requirement are

adjusted for the complexity and cost of the project involved. Often,

the construction of these projects can be completed under one contract

and, therefore, the non-Federal cooperation is provided in advance of 

construction. In such cases, the financial analysis requirement can

be satisfied by a statement of financial capability and financial plan

in the form of a letter from the sponsor and a short narrative in the

"Findings and Conclusions" section of the Detailed Project Report. In

more complicated cases, appropriately more of the financial analysis

requirements for a feasibility study will apply. 

 d. Ecosystem Restoration Studies (Section 1135 of WRDA 1986; 

Section 204 of WRDA 1992; and Section 206 of WRDA 1996). Prior to

approval to initiate a study under these authorities, the non-Federal

sponsor must provide a letter of intent stating its understanding of

the cost-sharing requirements and its capability and willingness to

participate as the sponsor for the proposed project. The project

approval document will be accompanied by a draft PCA which has been

fully coordinated with the sponsor and a financial analysis. When a

feasibility phase report is prepared, the report will contain a

discussion of the sponsor's responsibilities. 

 e. Postauthorization Studies. A final PCA is required,

pursuant to Section 221, as a prerequisite to initiating construction. 

Consequently, during the postauthorization planning, the emphasis is

on ensuring that the items of non-Federal cooperation for the

authorized project, as identified in the report cited in the

authorizing language, are specified and that the non-Federal sponsor

can comply with them. Inasmuch as a considerable period of time may

have passed since the project was authorized for construction, the

items of non-Federal cooperation should be reviewed for compliance

with current policy. When a policy change affects an item of nonFederal cooperation, the post authorization study should address the

question of whether the policy change is applicable to the authorized

project and whether the non-Federal sponsor is willing to continue

into construction of the project subject to the change in the

particular item(s) of non-Federal cooperation. The postauthorization

planning document will recommend items of non-Federal cooperation only

if they are directly related to: implementation of the recommended

Federal project; achievement of specified objectives of the Federal

project; or realization of benefits attributed to the Federal project. 

Cash contributions generally are expressed as percentages of

construction cost to allow the Chief of Engineers to make final

determinations without further Congressional action. It is not

necessary to list all routine requirements of generally applicable

Federal legislation such as those for pollution control, civil rights

and safety. PCAs are not required for projects to construct or

improve the inland waterway transportation system where all of the

costs are assigned to the Federal Government. To add recreation

improvements though, PCAs are required.

 f. Payment. Project costs are sometimes shared by assignment

of specific items of work, such as acquisition of land, provision of
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relocations, etc. In some cases, however, cash payments are required

toward first costs, as in non-Federal contributions required toward

certain purposes and in return for special benefits (see subparagraph 

5-13.c below). Normally the payment is in a single lump sum, though

Section 40 of Public Law 93-251 provides general authority to permit

non-Federal interests to make annual payments of required contributed

funds as construction proceeds. While legislative authorities permit

extending repayment for certain projects under certain conditions, the

Corps views such arrangements as contrary to the intent of non-Federal

cost sharing, which is to maximize the number of projects that can be

undertaken in each year's Federal appropriations. The terms of

payment should be specified in the planning report. Authorities for

advance project work by non-Federal sponsors subject to subsequent

reimbursement or credit toward items of non-Federal cooperation are

available and may be considered when helpful in achieving timely

accomplishment of needed actions (see paragraphs 8-6 and 13-12). 

Otherwise, there is no general authority to allow non-Federal sponsors

to substitute work-in-kind for required cash contributions. Any such

substitutions, to be allowable, must have been provided for in report

recommendations or specified by the subsequent project authorization

language. 

5-13. Recommendations. The recommendations in a study report are

based upon the study findings and are a concise statement of the plan

or improvements recommended, or of no Federal participation at this

time, as appropriate. When Federal participation is recommended,

clear, standard wording in simple statement form is used since it

becomes the basis of authorization and is thus, for all practical

purposes, draft legislation. Reliance is placed on a simple citing of

the selected plan presented in the report. Similarly, citations of

Acts bearing on non-Federal participation is simple and paraphrasing

avoided. When separable elements of a plan are independently

justified and functional, reports may recommend implementation of the

plan by separable element. Such recommendations provide for obtaining

written agreements for items of local cooperation for each element and

proceeding with construction of that element independent of remaining

elements.

 a. Nature of Recommendations. Recommendations for Federal

participation generally consist of two parts. The first is the

authority being sought for the Chief of Engineers to undertake,

modify, and maintain, as appropriate, the cited inprovements as

Federal projects or programs, with discretionary authority for

modifications (and any clarifying provisions needed to cover desirable

project-related divergences from general-law-related Federal

practice). Second, is the specification of non-Federal participation

in construction, operation, maintenance and the requirements of

non-Federal assurances for other necessary cooperation, such as the

prevention of encroachments on flood control channels. Where cost

estimates are shown, they will be presented in the context of

estimates for information and not as binding amounts.

 b. Changes in Recommendations. The initial recommendations

are those in the basic report, which is usually that of the District 

Commander, and will be consistent with legislative requirements,

precedents, and policies. They may be modified in the subsequent

correspondence. It is acknowledged in the Chief's report that the

recommendations therein are subject to modification before they are

transmitted to Congress as proposals for authorization and

implementation funding.
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 c. Special Beneficiary Situations. Special beneficiary

situations will be identified in preauthorization studies, and the

basis for including or excluding special non-Federal cooperation will

be stated in the report and its recommendations. The policy basis is

Section 2 of the River and Harbor Appropriations Act approved 5 June

1920 (33 U.S.C. 547) which specifies that "Every report submitted to

Congress ... shall include a statement of special or local benefits

... with recommendations as to what local cooperation should be

required, if any, on account of such special or local benefits." 

Generally, the Corps does not support projects that serve only

property owned by a single individual, commercial/business enterprise,

corporation, or club or association with restrictive membersip

requirements (see paragraph 12-6). When a project provides large

benefits to a few beneficiaries, the Corps gives close scrutiny to the

existence of:

 (1) windfall land enhancement benefits accruing to limited

special interests resulting from reduction of flood hazards; 

 (2) land creation benefits resulting from harbor projects (see 

ER 1105-2-100, paragraph 4-7); and

 (3) special savings to land owners in the cost of fill

material or enhancement of land values as a result of disposal of

material excavated from project areas.

5-14. Release of Information on Civil Works Investigations and

Reports. 

 

 a. Disclosure of Information. It is Federal policy that the

maximum amount of information shall be made available to the public. 

Disclosure of information is the rule and withholding of information

is the exception. The Freedom of Information Act Amendments of 1974

(Public Law 93-502) include a requirement, among other provisions,

that a decision to release or not to release records must be made

"within ten days" (as defined therein). The Federal Civil Works

function requires preparation of many types of reports leading to a

variety of actions. Information must be gathered and used to permit a

thorough analysis, reach sound conclusions, and make appropriate

recommendations. Information needed includes market and sales

information; present and future commodity movements; plans of

expansion and new locations of industry; operating costs of

transportation companies; damage estimates of real and personal

property; and real estate appraisals. These data are vital to

preparation of the Civil Works reports that lead to recommendations

concerning sizeable expenditures of public funds. While in many

instances the necessary information can be obtained only on a

privileged "in confidence" basis, the Corps will endeavor to release

sufficient information to permit public scrutiny of the non-privileged

data supporting the reports, especially those recommending

expenditures of public funds. Questions as to the propriety of

release of data considered sensitive or privileged must be identified

and forwarded to the Chief of Engineers, the initial denial authority

(IDA), within three working days following receipt of the request for

a determination. 

 b. Collection and Use of Privileged Data.

 (1) Whenever feasible, information will be requested and

obtained in such a manner that it can be released to the public.
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 (2) Any information which has been obtained with the express

understanding it will not be disclosed will be used in a manner that

will protect the privileged nature of that information.

 (3) Upon request, the maximum information consistent with the

above will be made available to the public from the Corps Civil Works

records. 

 c. Releasable Information. The following types of data can be

made available upon request:

 (1) Final reports in response to Acts of Congress and

Resolutions of Congressional Committees.

 (2) Complete records of public hearings, including

transcripts, correspondence, and information from the public except

any requested to be held in confidence.

 (3) Reports of the District and Division Commanders after

issuance of the public notice, or approval of the report by HQUSACE.

 (4) Letters and information to and from the public regarding

any type of Civil Works reports except those containing a statement

that the contents are to be held in confidence.

 (5) Material previously published for public use.

 (6) Engineer Regulations (ERs) and Engineer Manuals (EMs) on

Civil Works activities.

 d. Non-Releasable Information. The following types of

information will not be released by the action officer but must be

forwarded to the IDA for a determination:

 (1) Trade secrets, inventions and discoveries, or other

proprietary data. Formula, designs, drawings, and other technical

data submitted in confidence in connection with research, grants, or

contracts.

 (2) Items specifically exempted from disclosure by statute.

 (3) Privileged or commercial and financial information

obtained expressly as confidential (for such time as the person

furnishing the information specifies that it is privileged).

 (4) Interagency and intra-agency memorandums and letters which

would not be available by law to a private individual in litigation

with the DOD or any agency of the Department.

 (5) Internal letters, memorandums, and other internal

communications within the Civil Works element of the Corps of

Engineers that contain evaluations, opinions, recommendations, or

proposed solutions, and are primarily of a decision-making nature. 

These include staff papers containing advice, opinions, suggestions or

recommendations preliminary to decision or action by the Chief of

Engineers and the Department of the Army.

 (6) Records, papers and advice exchanged internally in

preparation for administrative settlement of potential litigation. 

Evaluation of contractors and their products which constitute internal

recommendations or advice and which involve a significant measure of
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judgment on the part of evaluating personnel.

 (7) Advance information on such matters as proposed plans to

procure, lease or otherwise hire and dispose of materials, real

estate, facilities, or functions when such information could provide

undue or unfair competitive advantage to private personal interests.

 (8) Design Memoranda for Real Estate, Gross Appraisals for

Real Estate, Public Use Plan, Land Requirements for Public Use, and

Master Plans until final acquisition of lands covered has been

completed.

 (9) Data on commodity origins and destinations, tonnages,

costs, etc., if it would identify specific firms or persons and

thereby disclose or reveal other privileged information.

 (10) Drafts of reports in the process of preparation

presenting unresolved questions are not released to the public without

prior HQUSACE approval. This does not include completed drafts which,

in accordance with ER 1105-2-100, must be coordinated with interested

agencies and the public in order to obtain views needed as input to

selection of the reporting officer's recommendations. In particular,

care is taken that final reports requiring notification of the Office

of Management and Budget and the Public Works and Appropriations

Committees of Congress are not released prior to completion of such

notifications. This does not preclude necessary coordination with

state, local and Federal agencies who are requested to withhold public

release of such information prior to completion of the required

coordination. Special care is taken to avoid releasing project

proposals which are often changed during the review and approval

process. Premature disclosure of such preliminary proposals is a

disservice to both the public and to the Corps. (AR 340-17) 

5-15. Sale of Corps Civil Works Publications and Reports. Public Law

85-480 authorizes publishing and sale of information pamphlets, maps,

brochures, and other material on river and harbor, flood control, and

other Civil Works Activities, including related public park and

recreation facilities under the jurisdiction of the Chief of

Engineers.

 a. One or more gratuitous copies of publications are available

upon request by industry, private organizations, or the general public

provided stocks permit and there are no restrictions on release, such

as inclusion of classified, protected, proprietary, or copyrighted

information.

 b. Quantities distributed per request will not exceed 50

copies. If production cost of the copies is less than $50, the

quantity limitation does not apply.

 c. When considered appropriate, a fee may be charged for the

copies. See AR 37-60 for a schedule of fees and charges.

 d. Sale price cannot be less than cost of reproduction. The

cost formula authorized by Title 44 of the United States Code for use

by the Superintendent of Documents, Government Printing Office, is

applied. The components of the formula are: Cost of press time, cost

of paper, cost of bindery operations, and a 50 percent surcharge added

to the total of the first three items. The sale price is obtained by

dividing the total cost of these components by the number of

publications produced.
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 e. Proceeds received from the sale of publications are

transmitted to the Finance and Accounting Officers for deposit in

accordance with Chapter 4, ER 37-2-10.

 f. Construction drawings and specifications can be sold to

potential contractor bidders. 
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CHAPTER 6

PROJECT COST SHARING AND REPAYMENT

6-1. Principles and Objectives of Cost Sharing. A fundamental

objective of the Congress in authorizing Federal participation in

water resources development is to insure that such action makes an

optimum contribution to the public good. At the same time, Congress

has sought to maintain a reasonable balance between the

responsibilities assumed by the Federal Government and those left with

the states and other non-Federal entities. A planning agency,

accordingly, must carefully consider all available specific

indications in law as well as those principles and policies defined by

Congress. As reflected in existing Federal water resources

legislation, Congress has established generally that the Federal

Government:

 a. Should undertake only those activities which local levels of

government or private enterprise cannot do as readily or as well from

the standpoint of the national interest;

 b. May bear a part of the costs of projects and programs that

benefit the Nation as a whole, or are deemed necessary to protect the

interest of future generations, particularly in those fields in which

profit-making organizations do not operate;

 c. Should provide for mitigation of any damaging effects of

Federal projects, or carry out measures to compensate for such

effects;

 d. May, where special circumstances make such action necessary

or desirable in the National interest, provide services which normally

would be provided by private enterprise or non-Federal public

entities. (Examples are when long-range financial returns are not

sufficiently attractive in the short-range view of private enterprise;

or when costs are included for purposes not readily marketable; or

when problems of comprehensive and coordinated development cannot be

readily resolved below the Federal level);

 e. May construct certain works for which local interests will

be willing to pay, or may provide subsidies, as by permitting

repayment at low Federal interest rates;

 f. May develop comprehensive plans embracing even those

purposes for which a high degree of responsibility remains with

non-Federal entities;

 

 g. Should not consider all purposes to warrant equal or maximum

Federal participation.

The costs of establishing and maintaining resource programs must be

borne, in one way or another, by the primary beneficiaries, secondary

beneficiaries, state or other non-Federal public entities, or the

Nation. 

6-2. Formulas, Legislative, and Administrative Rules. The costs of

water resources projects under the jurisdiction of the Corps of

Engineers are shared between Federal and non-Federal interests in

accordance with: (1) the provisions of water resource development,

flood control, and other laws; (2) the specific requirements of acts

authorizing the projects in some cases; and (3) administrative
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instructions. Legislative authorizations have defined general rules

for cost sharing, or have prescribed percentages of costs required by

non-Federal entities. Prescribed percentages were traditionally

developed on the basis of analogous precedents or from a sense of

equity. With Congressional acceptance and approval of recommendations

for projects proposed on such basis, these rules became established

policy. Enactment of the Water Resources Development Act of 1986

(WRDA 1986), Public Law 99-662, produced the first comprehensive

treatment of cost sharing, with formulas for all water resources

purposes. Arrangements for cost sharing may include one or a

combination of several aspects of the program, such as planning,

design, construction, operation, maintenance and management, or an

interest therein such as through provision of advice, data, materials,

labor, cash, or other contributions. The amount of the local

(non-Federal) cooperation involved, both monetary and non-monetary, is

thus dependent upon the nature of the project under consideration and

the general and specific laws pertinent thereto. The new cost sharing

rules for project construction and repayment are summarized in this

chapter and discussed further in subsequent chapters devoted to the

individual water resources purposes. 

6-3. Applicability of Cost Sharing.

 a. General. Unless otherwise specified, the cost sharing

provisions of Title I of WRDA 1986, as amended, apply to all projects

and separable elements authorized in the Act, or in subsequent Acts,

as well as to previously authorized projects, depending on the date

when physical construction is started, and the type of project. For

harbor projects under Section 101 of WRDA 1986, the new cost sharing

applies to any project or separable element thereof, on which a

contract for physical construction was not awarded before 17 November

1986. On projects for flood control and other purposes, under Section

103 of WRDA 1986, new cost sharing applies to any project (including

any small project which is not specifically authorized by Congress and

for which the Secretary has not approved funding before 17 November

1986), or separable element thereof, on which physical construction

was initiated after 30 April 1986. Under Section 202(a)(2) of WRDA

1996, physical construction is defined to be initiated on the date of

award of a construction contract. Physical construction is

distinguished from the acquisition of land which is accomplished

before physical construction can begin. Title I cost sharing is also

applicable to the small projects not specifically authorized by

Congress. When the Federal share of any project authorized in WRDA

1986 is not established in Title I, the Federal share is as otherwise

provided by law (Section 108 of WRDA 1986). 

 b. Definition of Separable Element. The concept of "separable

element" was intended as an equitable way of phasing new cost sharing

policy into an ongoing program, by applying the new rules to work that

represents new commitments. Section 103(f) of WRDA 1986 defines

"separable element" as a portion of a project which is physically

separable from other portions of the project and which achieves

hydrologic effects, or produces physical or economic benefits, which

are separately identifiable from those produced by other portions of

the project. For separability, operational, environmental, and

economic impacts must be directly related to, and only associated

with, the individual project element. In the case of environmental

impact, the environmental treatment for the element must be capable of

passing the legal test for adequacy of coverage. Independent

hydrologic effects connote a hydrologic and hydraulic independence

from the output and benefits of other projects and separable elements. 
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Economic separability refers to the criterion requiring the separable

element to have net NED benefits as the next construction element. In

the programming of project construction, separable elements may be

identified so as to avoid a commitment to work beyond that which has

been planned in detail or to which full approval has not been granted

within the Executive Branch. When construction funding for a project

is programmed initially and supported by a local cooperation agreement

with the project sponsor, authorized elements beyond this scope are

implemented as separable elements.

 c. Consistent Application. Cost sharing reforms embodied in

WRDA 1986 represent a long-sought compromise between the

Administration and Congress. Consistent application of the new cost

sharing policy is essential, and special treatment in the form of

exemption and/or exception is to be avoided.

 d. Cost Sharing Exceptions and Limits. 

 (1) Exceptions. Title I cost sharing does not apply to the

Yazoo Basin, Mississippi, Demonstration Erosion Control Program,

authorized by Public Law 98-8 or to the Harlan, Kentucky, and

Barbourville, Kentucky, elements of the project authorized by Section

202 of Public Law 96-367, in accordance with Section 103(e)(2) of WRDA

1986.

 (2) Cost Sharing Waiver for the Territories (Section 1156 of

WRDA 1986). Local cost sharing requirements for all studies and

projects in American Somoa, Guam, the Northern Mariana Islands, the

Virgin Islands, and the Trust Territories of the Pacific Islands, will

be reduced, up to $200,000 for each study and project. Cost sharing

for each study and for each project will be established using the

general cost sharing criteria. The non-Federal cost for each study

and/or project will then be reduced by $200,000, or to zero if the

non-Federal share is less than $200,000. Waivers for studies and

projects are considered separately. If the waiver for a study is less

than the $200,000 maximum, there is no "balance" remaining for

transfer to a project waiver. 

 (3) Small Project Authorization Limits (Section 915(i) of WRDA

1986). The amendments increasing small project cost limits (Section

915) do not apply to any project under contract for construction on 17

November 1986.

 (4) Ability-to-Pay (Section 103(m) of WRDA 1986, as amended by

Section 202(b) of WRDA 1996). Cost sharing agreements for flood

control or agricultural water supply are subject to the ability of a

non-Federal interest to pay, as discussed in paragraphs 6-5.f and 6-8.

6-4. Navigation. 

 a. Commercial Harbors, and Inland Harbors (Section 101 of WRDA

1986, as amended by Section 201 of WRDA 1996). 

 (1) Non-Federal sponsors must pay during the period of

construction, a portion of the costs associated with the general

navigation features (GNF) of the project. GNF include navigation

channels, anchorages, turning basins, jetties, breakwaters, and landbased and aquatic dredged material disposal areas. The non-Federal

share is based upon the project depth: 10 percent of that portion of

the total cost of construction of the GNF assigned to dredging to a

depth not in excess of 20 feet and any overdepth dredging associated
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therewith; 25 percent of that portion of the total cost of

construction of the GNF assigned to dredging to a depth in excess of

20 feet but not in excess of 45 feet and any overdepth dredging

associated therewith; and 50 percent of that portion of the total cost

of construction of the GNF assigned to dredging to a depth in excess

of 45 feet and any overdepth dredging associated therewith. At

projects where depths are not modified, non-Federal sponsors must

provide a share of the GNF costs, using the appropriate percentage

corresponding to the authorized or existing project depth, whichever

is greater. Non-Federal sponsors must pay an additional 10 percent of

the total cost of construction of the GNF, in cash, over a period not

to exceed 30 years. The value of lands, easements, rights-of-way, and

relocations (LERRs) provided by the non-Federal sponsor (paragraph

6-4.a(2)) for the construction, operation and maintenance of the GNF,

is credited toward this 10 percent payment, including credit for

utility relocation costs except in the case of deep-draft harbors

(depth over 45 feet) or harbors constructed by non-Federal interests

under Section 204 of WRDA 1986 (see paragraph 12-26.b) where the

credit would be limited to one-half of the cost of utility

relocations. In addition, no credit can be given to the non-Federal

sponsor for lands which lie within the Navigational Servitude. The

owner of a bridge requiring modification must share in the costs

according to the principles of the Truman-Hobbs Act (P.L. 77-647); the

balance is cost shared as part of the GNF.

 (2) Non-Federal sponsors must provide the necessary LERR,

including LERR required for fish and wildlife mitigation for the

construction, operation and maintenance of the GNF. Non-Federal

sponsors must also perform or assure the performance of all

relocations and alterations of utilities, cemeteries, highways,

railroads, or public facilities, but excluding bridges over navigable

waters, necessary for the project, except that in the case of a

project for a deep-draft harbor (depth over 45 feet), including those

constructed by non-Federal sponsors under Section 204 of WRDA 1986,

one-half of the cost of each such utility relocation is borne by the

owner of the facility being relocated, and one-half by the non-Federal

project sponsor (see also paragraph 10-4.b). 

 (3) A sponsor must also provide and maintain, without cost to

the Federal Government, all local service facilities other than those

for GNF needed to achieve anticipated project benefits, including

dredging in berthing areas and local access channels serving GNF.

 (4) Dredged Material Disposal Facilities (Section 201 of WRDA

1996). Upon request of a non-Federal sponsor, the Secretary of the

Army (SA) shall modify a Project Cooperation Agreement (PCA) executed

on or before 12 October 1996 to reflect the new cost sharing

provisions for dredged material disposal facilities for which a

contract for construction of such facilities has not been awarded. 

The cost sharing provisions shall not increase the non-Federal share

of the construction, operation, or maintenance of:

 (a) expanding any confined dredged material disposal facility

which is operated by the U.S. Army Corps of Engineers and which is

authorized for cost recovery through the collection of tolls;

 (b) any confined dredged material disposal facility for which

the Invitation for Bids for construction was issued prior to 12

October 1996; and
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 (c) expanding any confined dredged material disposal facility

authorized by Section 123 of the River and Harbor Act of 1970, for

which the capacity of the confined dredged material disposal facility

was exceeded in less than six years. 

 (5) Dredged Material Disposal Facility Partnerships (Section

217 of WRDA 1996).

 (a) The SA/Federal Government may, at the request of a nonFederal interest, add capacity at a dredged material disposal site

being constructed by the SA/Federal Government if the non-Federal

sponsor pays, during the period of construction, all costs associated

with the additional capacity. The non-Federal interest can set and

collect fees assessed to third parties to recover those costs.

 (b) The SA/Federal Government may allow non-Federal interests

to use capacity in an existing Corps disposal site if such use will

not reduce the availability of the facility for the Federal project. 

The (SA)/Federal Government can impose fees to recover capital,

operation, and maintenance costs associated with the partner’s use.

 (c) The SA/Federal Government may use public-private

partnerships in the design, construction, management, or operation of

dredged material disposal facilities in connection with construction

or maintenance of Federal navigation projects. These partnerships may

be implemented through agreements with non-Federal interests, a

private entity, or both. Funds for the work may be provided in whole

or in part by the private entity. The SA/Federal Government may

reimburse the private entity, subject to appropriations, for the

disposal of dredged material in the facility through the payment of a

disposal user fee. The fee shall be sufficient to recover the funds

contributed by the private entity plus a reasonable rate of return on

investment. The Federal share of the fee shall equal the Federal

percentage of the disposal facility cost, in accordance with existing

cost sharing requirements. 

 (6) Cost Sharing Applications.

 (a) Where channel deepening is not limited to one depth zone

(e.g., where a channel is being deepened from 40 to 50 feet) cost

sharing is determined as shown in Appendix G to ER 1165-2-131. This

approach also applies to GNF features associated with such a project

which involves deepening which crosses different depth zones such as

widenings, turning basins, and anchorage areas. The existing and

improved main channel depths will be used to determine cost sharing

(e.g., for a channel deepened from 40 to 50 feet, there are two depth

zones - one to from 40 to 45 feet, and a second from 45 to 50 feet -

even though widening or other GNF features may be in areas that have

natural depths of 20 feet or less).

 (b) Where channel deepening is limited to one depth zone (e.g.,

where a channel is deepened from 40 to 45 feet) cost sharing is

determined by the improved depth.

 (c) Where channel deepening is limited to one depth zone (e.g.,

where a channel is deepened from 40 to 45 feet) the cost sharing for

the entire cost of GNF associated with that deepening project are

determined by the improved depth (e.g., if there is channel widening

associated with a project deepened from 40 to 45 feet, all of the

widening costs will be shared at the cost sharing which applies to the

45 foot depth (25 percent during construction) even though the
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widening may be in areas adjacent to the existing channel that have

depths of 20 feet or less. The same would apply to a new turning

basin or new anchorage area associated with such a project).

 (d) For navigation projects that involve no deepening (e.g., a

widening only project or a project involving addition of a

breakwater), the entire GNF costs are shared at either the cost

sharing associated with th existing project depth, or if there is no

improved depth, the natural controlling depth. 

 b. Inland Waterways. 

 (1) In WRDA 1986, and subsequent legislation, projects on

waterways that are subject to fuel taxes, are specifically authorized

to be funded in part by the Inland Waterways Trust Fund, with 50

percent of the construction costs paid from amounts appropriated from

the General Fund of the Treasury, and the other 50 percent from the

Trust Fund. The term construction in these specific cases is defined

to include planning, designing, engineering, surveying, and

acquisition of LERRD, including lands for disposal of dredged material

and maintenance disposal, and LERRD required for fish and wildlife

mitigation. Future proposals to modify or rehabilitate elements of

the inland and coastal waterways system of the United States, as

identified in Section 206 of the Inland Waterways Revenue Act (IWRA)

of 1978, as amended, should recommend financing on this basis (see

paragraph 12-4.a).

 (2) Costs for all waterways outside the system identified in

Section 206 of the IWRA of 1978, as amended, will be shared as

commercial or recreational harbors, based on allocation to these

project purposes.

 c. Recreational Navigation (Section 103(c)(4) of WRDA 1986).

 (1) Non-Federal sponsors for a recreational navigation project,

or separable element thereof, must pay 50 percent of the joint and

separable costs of constructing the GNF allocated to recreational

navigation during the construction period. Non-Federal sponsors

receive credit for the value of LERRD contributions (paragraph

6-4.c(2)) against the 50 percent share. The non-Federal sponsors must

accomplish or pay for 100 percent of GNF operations and maintenance

costs allocated to recreational navigation.

 (2) Non-Federal sponsors must provide all LERRD, including

LERRD required for fish and wildlife mitigation, with all retaining

dikes, bulkheads, and embankments, or pay the cost of such retaining

works. The value of LERRD contributions are included in the 50

percent non-Federal share of project costs assigned to recreational

navigation. The non-Federal sponsors must also provide and maintain,

without cost to the Federal Government, all local service facilities

other than GNF needed to achieve anticipated project benefits,

including dredging in berthing areas and local access channels serving

GNF.

 d. Emergency Navigation Authority. The cost sharing in Title I

of WRDA 1986 does not apply to activities under the special authority

for emergency clearing provided by Section 3 of the River and Harbor

Act of 1945 (see paragraph 11-2.a(3)). 
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6-5. Flood Damage Reduction.

 a. Single Purpose Structural Flood Control (Section 103(a) of

WRDA 1986, as amended by Section 202(a) of WRDA 1996). 

 (1) Before construction, non-Federal sponsors must agree to:

pay 5 percent of the project first costs assigned to structural flood

control, in cash, during the construction of the project, proportional

to the rate of Federal expenditures; and to provide all lands,

easements, rights-of-way, including suitable borrow and dredged

material disposal areas, and perform all related necessary relocations

(LERRD), including LERRD required for fish and wildlife mitigation. 

All costs for relocations are part of LERRD, including costs for

measures needed to prevent serious adverse effects to the flood

control project structures, in the event of failure/rupture (e.g.,

stronger pipe requirements, special compacting or cementing to provide

for added strength or to prevent piping, mechanical bolt joints to

prevent leakage, new valves, relocated structures, etc.).

 (2) Minimum and Maximum Contributions. If the value of the

contributions in paragraph 6-5.a(1) is less than 25 percent of the

costs of the project (35 percent for projects authorized, or

reauthorized after formal deauthorization, after 12 October 1996)

assigned to structural flood control, the non-Federal interest shall

pay during construction of the project any additional amounts

necessary for the total non-Federal contribution to equal 25 percent

(35 percent for projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996). Pursuant to Section

103(a)(3) of WRDA 1986, the total non-Federal contribution cannot

exceed 50 percent of the first costs assigned to structural flood

control (5 percent cash contribution is required, with the remaining

contribution consisting of LERRD limited to 45 percent). Guidance on

funding the value of LERRD that exceeds the 45 percent is contained in

ER 1165-2-131 and its successor regulation. Regarding project

modifications, new cost sharing (i.e., post 12 October 1996) will not

be required for project authorizations necessitated by increases in

project costs in accordance with Section 902 of WRDA 1986, i.e., the

basic project has not changed. However, the increased/new cost

sharing (i.e., post 12 October 1996) will apply to all projects where

reevaluation studies have indicated a significant change in project

scope or purpose has occurred necessitating the need for a new

congressional authorization. The increased/new non-Federal cost share

also applies to those Section 205 projects whose Detailed Project

Reports are approved after 12 October 1996, and to those Section 14

and 208 projects which are approved for construction by the division

commander after 12 October 1996 unless these projects have been

specifically authorized in or prior to WRDA 1996. 

 (3) Deferred Payment. Section 103(a)(4) of WRDA 1986 permits

non-Federal sponsors to defer payment of contributions in excess of 30

percent of the costs assigned to structural flood control (5 percent

cash plus 25 percent LERRD). The excess costs may be paid over a

15-year period, or shorter period, if agreed to by the ASA(CW) and

non-Federal sponsors. Repayment shall begin on the date construction

of the project or separable element is completed, and must include

interest from the date payments would otherwise have been made, at the

interest rate determined pursuant to Section 106 of WRDA 1986. 

However, full payment during construction is preferred.
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 b. Nonstructural Flood Control (Section 103(b) of WRDA 1986, as

amended by Section 202(a) of WRDA 1996).

 (1) Before construction, non-Federal sponsors must agree to

provide the LERRD, with that necessary for construction to be

furnished the Federal Government prior to the advertisement of any

construction contract. Demolition and removal of structures is

usually performed by the Government, and costs associate therewith are

considered construction, not LERRD, costs. 

 (2) Minimum and Maximum Contributions. If the value of the

LERRD contributions is less than 25 percent of the costs of the

nonstructural flood control features/project (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996), the non-Federal sponsor shall

pay upon completion of construction, such additional amounts as are

necessary for its share to be equal to 25 percent (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996). The value of non-Federal

contributions shall not exceed 25 percent of the costs of the

nonstructural flood control features/project (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996). When the value of LERRD is

more than 25 percent (35 percent for features/projects authorized, or

reauthorized after formal deauthorization, after 12 October 1996),

agreement must be reached with the non-Federal sponsor on the most

efficient and practical means for acquisition of the portion of the

LERRD over 25 percent (35 percent for features/projects authorized, or

reauthorized after formal deauthorization, after 12 October 1996)(see

ER 1165-2-131, paragraph 12.c(8)). Regarding project modifications,

new cost sharing (i.e., post 12 October 1996) will not be required for

project authorizations necessitated by increases in project costs in

accordance with Section 902 of WRDA 1986, i.e., the basic project has

not changed. However, the increased/new cost sharing (i.e., post 12

October 1996) will apply to all projects where reevaluation studies

have indicated a significant change in project scope or purpose has

occurred necessitating the need for a new congressional authorization. 

The increased/new non-Federal cost share also applies to those Section

205 projects whose Detailed Project Reports are approved after 12

October 1996, unless these projects have been specifically authorized

in or prior to WRDA 1996.

 (3) Deferred Payment. Additional funds needed to bring

non-Federal contributions up to 25 percent of the cost of the

nonstructural flood control features, may be paid over a 15-year

period, or shorter period if agreed to by the ASA(CW) and non-Federal

sponsor. Repayment shall begin on the date construction of the

project or separable element is completed, and must include interest

at the rate determined pursuant to Section 106 of WRDA 1986. However,

full payment upon completion of construction is preferred.

 c. Application to Projects Containing Both Structural and

Nonstructural Elements. Costs will be allocated and shared in

accordance with the formulas applicable to each element.

 d. Special Cost Sharing Considerations.

 (1) Betterments. Betterments are defined as changes in the

design and construction of an element of a project resulting from the

application of standards that the government determines exceed those

that the government would otherwise apply for accomplishing the design
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6-9

and construction of that element. Betterments desired by non-Federal 

sponsors that are related to the basic project and that can be

accommodated in the construction of the basic project, may be approved

for implementation, as part of the project, if non-Federal sponsors

agree to provide any additional costs incurred by the Federal

Government upfront prior to the Government incurring any obligations. 

Costs for betterments are not included in the total project cost

estimate or economic evaluation.

 (2) Comparable Features. In some projects, construction of the

project and portions of the LERRD constitute approximately the same

work. An example would be a bridge abutment constructed as part of a

flood wall. If a clearly identifiable increase in construction costs

results from these provisions (such as when abutment requirements

exceed flood wall section requirements), the increased cost shall be

included as part of the LERRD responsibilities and non-Federal

sponsors shall contribute an equivalent amount in cash.

 e. Emergency Flood Control Authorities. The cost sharing in

Title I of WRDA 1986, as amended, does not apply to emergency

operations and disaster assistance programs pursuant to Section 5 of

the 1941 Flood Control Act (FCA), as amended. Flood control cost

sharing in Title I is applicable to recommendations under the special

continuing authorities provided by Section 14 of the 1946 FCA, as

amended (see paragraph 15-3.c).

 f. Ability-to-Pay (Section 103(m) of WRDA 1986,as amended by

Section 202(b) of WRDA 1996). All local cooperation agreements for

flood control projects, for which the cost sharing provisions of WRDA

1986, as amended by WRDA 1996, apply, are subject to the ability of

the non-Federal sponsor to pay. Procedures for applying an

ability-to-pay test were published as a Final Rule in the Federal

Register, 2 October 1989, and are codified at 33 CFR 241. (ER 1165-2-

121). Projects qualify for a reduction in the non-Federal share only

if they meet the conditions of an "income test" (comparison of project

area per capita income to national average) and a "benefit test"

(comparison of one-fourth the benefit cost ratio to the normal

non-Federal cost share requirement). The income test requires the use

of the latest available information, which is perodically published in

ECs by HQUSACE. An amendment to the ability-to-pay rule for flood

control was published in the Federal Register, 26 January 1995. The

amended rule establishes an eligibility for reductions in the nonFederal cost share using higher cost criteria. Projects which do not

qualify for a reduction under the income and benefits receive

additional consideration under the high cost test. (A proposed Final

Rule further amending the amended ability-to-pay rule to reflect

Section 202(b) of WRDA 1996 is in preparation)

6-6. Hydroelectric Power (Section 103(c)(1) of WRDA 1986). All costs

associated with development of hydroelectric power at the site of a

Corps project are borne, one way or another, by non-Federal sponsors. 

Current policy is to encourage non-Federal sponsors to undertake the

development of the power potential at a Corps project under the

Federal Energy Regulatory Commission (FERC) licensing process, and to

pursue Federal development only where such non-Federal activity would

be impractical. In those cases where non-Federal development is

impractical and Federal development is authorized as part of a Corps

multiple purpose project, a non-Federal sponsor is sought who will

agree to provide the share of project development costs (joint and

separable) allocated to the hydroelectric power purpose during the

period of project construction in return for later reimbursement by
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6-10

the Federal marketing agency out of revenues realized from sale of the

power (allocated OMRR&R costs will be funded by the Corps and repaid

to the U.S. Treasury out of the revenues also). In the event the

development is undertaken without such a sponsor, all allocated

hydroelectric power costs will be funded by the Corps and ultimately

repaid to the U.S. Treasury out of the power revenues collected by the

Federal marketing agency. (See paragraphs 16-3 and 16-9.)

6-7. Municipal and Industrial Water Supply (Section 103(c)(2) of WRDA

1986). For new construction of Corps multiple purpose projects in

which municipal and industrial (M&I) water supply is one of the

purposes (including unstarted projects previously funded for

construction, resumptions, and separable elements of ongoing projects)

all separable and joint costs allocated to that purpose must be

provided by a non-Federal water supply sponsor during the period of

construction. The sponsor is also responsible for the share of

project OMRR&R costs allocated to M&I water supply. These costs are

to be paid as they are incurred or in lump sum after completion of the

work involved. The sponsor should be encouraged to establish a

sinking fund in order to cover the replacement and rehabilitation

costs when the occasion should arise. Non-Federal cost sharing and

repayment arrangements required in connection with M&I water supply

functions of completed Corps projects are discussed in paragraph 18-2.

6-8. Agricultural Water Supply (Section 8 of the FCA of 1944 and

Section 103(c)(3) of WRDA 1986). When irrigation storage is included 

in a Corps reservoir pursuant to Section 8 of the Flood Control Act of

1944 (see paragraph 18-2.i), costs allocated to the irrigation purpose

are funded by the Corps and ultimately repaid to the U.S. Treasury by

the non-Federal users in conformity with reclamation law, under

contract arrangements with the Department of the Interior. Section 8

authority is used only in the 17 western states to which reclamation

law applies. Section 103(c)(3) of WRDA 1986 provides that non-Federal

interests are to be responsible for 35 percent of costs (joint and

separable) allocated to agricultural water supply purposes in a Corps

project, to be paid during the period of construction, and for the

allocated OMRR&R costs as they are incurred. Section 103(c)(3)

applies to irrigation water outside the 17 western states and to other

agricultural water supply functions in all areas. The non-Federal

cost sharing requirements for agricultural water supply provided

pursuant to this section are subject to the ability-to-pay provision

in Section 103(m) of WRDA 1986,as amended by Section 202(b) of WRDA

1996. Related rules for applying an ability-to-pay test have not been

formulated; policy questions should be addressed to HQUSACE (CECW-AA). 

6-9. Recreation (Section 103(c)(4) of WRDA 1986). Cost sharing

pursuant to Section 103(c)(4) of WRDA 1986 as applicable to

recreational navigation improvements is covered in paragraph 6-4.c. 

The following policies are applicable to recreational elements of

other Corps projects.

 a. Investment Costs. The non-Federal share of the costs

assigned to recreation, is 50 percent of the separable costs, to be

paid during the construction period. Non-Federal sponsors must also

provide all LERRD assigned to the recreation purpose and insure the

performance of all necessary relocations. The value of these

contributions is counted as part of the 50 percent non-Federal share

of separable recreation costs.
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 b. Additional Cash Contribution. When the fair market value of

the LERRD contributions for recreation is less than 50 percent of the

separable recreation costs, the difference must be provided by

non-Federal sponsors as a cash contribution during construction. When

the fair market value of the LERRD contributions exceeds 50 percent of

the separable recreation costs, the non-Federal share is limited to 50

percent (the Corps becomes responsible for the increment of LERRD

which exceeds 50 percent of separable recreation costs).

6-10. Hurricane and Storm Damage Reduction (Section 103(c)(5) of WRDA

1986). Section 103(c)(5) designates cost sharing for the purpose of

hurricane and storm damage reduction (HSDR). This introduced a new

way of viewing shore protection projects which, prior to WRDA 1986,

were viewed as either being for beach erosion control or for

hurricane, tidal, and lake flood protection. Pursuant to Section

103(d), the costs of constructing measures for "beach erosion control"

are now assigned to one of the basic purposes designated in Sections

103(a), (b) or (c). Normally this will be either HSDR or recreation. 

The following policies are applicable to HSDR shore protection

projects.

 a. Investment Costs. The non-Federal share of the costs

assigned to HSDR (project or separable element) is 35 percent, to be

paid during the construction period. Non-Federal sponsors must also

provide all related LERRD requirements, the value of which (see

paragraph 6-10.c, following) is counted as part of the 35 percent

non-Federal share.

 b. Additional Cash Contribution. When the value of the LERRD

contributions for HSDR is less than 35 percent of the project costs

assigned to HSDR, the difference must be provided by non-Federal 

sponsors as a cash contribution during construction. When the value

of the LERRD contributions exceeds 35 percent of the assigned costs,

the non-Federal share is limited to 35 percent (the Corps becomes

responsible for the increment of LERRD which exceeds 35 percent of

HSDR costs).

 c. Valuation of LERRD. Non-Federal sponsors must provide all

of the LERRD for shore protection projects, including borrow areas, at

non-Federally-owned shores. The value of these items is included in

the total project cost, and non-Federal sponsors receive equivalent

credit against the non-Federal cost share. There are special

considerations with respect to valuing the real estate interests

involved.

 (1) Lands, Easements, and Rights-of Way (LER) for Project

Features. Private land holdings (LER) subject to shore erosion and

required for project purposes must be appraised considering special

benefits in accordance with relevant statutes and Department of

Justice regulations implemented by ER 405-1-12. Generally, in the

absence of the protective project features the shore would erode away

and be lost. However, the non-Federal sponsor should receive credit

for land values, if any, resulting from this special benefits

analysis, in addition to administrative and/or other costs associated

with the acquisition or condemnation of the requisite elements. The

market value of the entire tract at the time of acquisition, excluding

any enhancement or diminution from the project, is compared to the

market value of the remainder property, including any benefits or

diminution in value from the project. Public land holdings (LER)

subject to shore erosion and required for project purposes must also

be appraised considering special benefits, but any land values
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developed in this analysis must be approved by CERE-E.

 (2) Borrow Areas. Similarly, when a borrow area is provided

by the sponsor as part of LERRD, the resource invested by the sponsor

and available for credit against its share of project costs, is the

net cost of the borrow area, which reflects the change in fair market

value of the borrow area before and after its use. Only the net cost

should be included in project evaluations and credited against the

non-Federal cost sharing responsibilities. If a sponsor makes

available a borrow area already in its ownership, the net value for

crediting purposes will be established on the basis of borrow area

appraisals before and after use for project borrow. Normally no

credit will be given when offshore borrow areas are used, since the

before and after market values are considered identical.

6-11. Aquatic Plant Control (Section 103(c)(6) of WRDA 1986). Costs

are shared 50 percent Federal, 50 percent non-Federal (see paragraph

21-1). 

6-12. Water Quality Enhancement (Section 103(d) of WRDA 1986). This

legislation provides new cost sharing policy for water quality

enhancement. The costs of measures for water quality enhancement are

to be assigned to the appropriate project purposes and shared in the

same percentage as the purposes to which the costs are assigned. 

Normally, costs for water quality enhancement will be assigned to the

purposes of M&I and/or agricultural water supply, recreation, or

fisheries enhancement.

6-13. Fish and Wildlife Mitigation (Section 906(c) of WRDA 1986). 

Costs incurred after 17 November 1986 will be allocated among the

authorized purposes which caused the requirement for mitigation, and

cost shared to the same extent as other project costs allocated to

these purposes. However, no cost sharing will be imposed without the

consent of the non-Federal sponsor where contracts have previously

been signed for repayment of costs unless such contracts are complied

with or renegotiated. Non-Federal sponsors are also required to

provide all LERRD where this is a requirement of the purpose which

necessitates the mitigation, except where it is otherwise agreed that

the Corps will provide them using non-Federal funds.

6-14. Fish and Wildlife Enhancement (Section 906(e) of WRDA 1986 as

amended by Section 107(b) of WRDA 1992).

 a. When the Secretary of the Army recommends fish and wildlife

enhancement in reports to Congress, the first costs are all Federal

when any of the following apply (different provisions may apply to

previously completed or authorized projects; see paragraph 19-5.b):

 (1) Enhancement benefits are determined to be national in

character;

 (2) Enhancement is designed to benefit species that have been

listed as threatened or endangered by the Secretary of the Interior;

or

 (3) Enhancement activities will be located on lands managed as

a national wildlife refuge.
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 b. When enhancement benefits do not qualify as above,

non-Federal sponsors are responsible for 25 percent of the first costs

associated with these benefits, paid during implementation.

 c. In all cases, the cost of operation and maintenance is the

responsibility of the agency that manages the land for fish and

wildlife purposes. (ER 1105-2-100, Chapter 4, Section VIII, Fish and

Wildlife Enhancement, Paragraph 4-37, Federal and Non-Federal

Participation) 

6-15. Deferred Payments by Non-Federal Sponsors. The cost sharing

established by WRDA 1986 specifies: (1) non-Federal payments to the

Federal Government for its share of the cost of works accomplished

under Federal control; and (2) non-Federal accomplishment of certain

activities such as provision of LERRD. The general concept to be

followed is for each party to provide its share of cost shared work

prior to initiation of that work and for each party to produce its

separate work activities in a time frame that permits efficient

accomplishment of the overall effort (pay-as-you-go). The legislation

does, however, make provision for deferral of certain non-Federal

payments, most of which are at the discretion of the ASA(CW). Certain

conventions have been adopted for computing interest charges for

non-Federal payments made later than they would have been made under

the "pay-as-you-go" concept described above. (ER 1165-2-131)

6-16. Environmental Protection (Environmental/Ecosystem Restoration). 

Section 306 of WRDA 1990 authorizes the Secretary of the Army to

include environmental protection as one of the primary missions of the

Corps. Section 307(a), WRDA 1990, establishes "no net loss of

wetlands" and an "increase in the quality and quantity of the nations

wetlands" as goals of the water resources development program. 

However, neither section provides a specific new authority to study,

construct or implement specific measures. Section 210 of WRDA 1996

establishes the cost sharing for ecosystem (environmental) protection

and restoration projects by amending Section 103(c) of WRDA 1986 to

add environmental protection and restoration to the list of project

purposes and establishes the the non-Federal share as 35 percent. 

Current Corps policy on cost sharing for ecosystem restoration

improvements proposed for congressional authorization (i.e., projects

authorized after 12 October 1996) is 50 Federal/50 percent non-Federal

for feasibility study, 65 percent Federal/35 percent non-Federal for

implementation (preconstruction engineering and design, construction)

including separable elements, and 100 percent non-Federal for

operation, maintenance, repair, rehabilitation, and replacement

(OMRR&R). The non-Federal sponsor provides all LERRDs and the value

of the LERRDs are included in the non-Federal 35-percent share. Where

the LERRDs exceed the non-Federal sponsor’s 35-percent share, the

sponsor will be reimbursed for the value of the the LERRDs that exceed

the 35-percent non-Federal share. Section 103 of WRDA 1986, as

amended, makes no provision for work-in-kind and the non-Federal

sponsor 35-percent share, after appropriate accounting for LERRD and

required non-Federal sponsor project coordination activities under the

terms of the Preconstruction Engineering and Design Agreement and 

PCA, will be provided in cash during construction. Section 206 (of

WRDA 1996) Aquatic Ecosystem Restoration projects (with Federal costs

limited to $5 million per project) are also cost shared 65 percent

Federal/35 percent non-Federal for implementation costs and 100

percent non-Federal for LERRDs and OMRR&R costs. However, Section

1135 (of WRDA 1986) and Section 204 (of WRDA 1992) projects are cost

shared 75 percent Federal/25 percent non-Federal for both feasibility

study costs and implementation costs, and 100 percent non-Federal for
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the incremental OMRR&R.

6-17. Hazardous, Toxic, and Radioactive Wastes (HTRW). Expending

Civil Works funds is to be avoided for remediation of HTRW. 

Construction of Civil Works projects in HTRW-contaminated areas should

be avoided where practicable. The reconnaissance and feasibility

study for each project will routinely include a phased and documented

review to provide for early identification of HTRW potential. Studies

to determine the the existence and extent of HTRW problems will be

treated as study cost and shared accordingly. Investigations for the

purpose of identifying the existence and extent of any HTRW performed

during PED (i.e., prior to execution of the PCA) will be performed by

the Federal Government, and these costs will be included in total

project costs and cost shared in accordance with the basic project

purpose. However, where hazardous substances regulated under CERCLA

are found to exist, the non-Federal sponsor shall be responsible for

any subsequent studies and investigations required to determine the

appropriate response and clean up actions. Should HTRW be discovered

on lands required for the project, the non-Federal sponsor shall not

proceed with land acquisition until mutually agreed upon by both

parties. If the land has already been purchased, the Federal

Government and the non-Federal sponsor shall decide whether to proceed

with construction. 

 a. Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA) Regulated Contaminants. The design and

construction of remediation measures for CERCLA regulated contaminants

will be the responsibility of the project sponsor and the cost will

not be considered a project cost nor will the sponsor receive credit

for any HTRW response costs. The non-Federal sponsor must indemnify

the Government for all response costs for which the Government is

found liable under CERCLA, except for such response costs or clean up

costs which result from negligence of the Government or its

contractors during construction. If a decision is made to avoid an

HTRW site by redesigning the project (e.g., realignment of a channel

or levee), the costs of redesigning and constructing the change will

be cost shared in accordance with the basic project purpose, even if

the realignment option costs more to construct. For projects which

are not cost shared, any necessary HTRW costs will be a part of

project cost. ER 1165-2-132 provides details for consideration of

HTRW potential at Civil Works projects. 

 b. Non-CERCLA Regulated Contaminants. For all contaminants

not regulated under CERCLA, but for which there is a validly

promulgated Federal, state, or local requirement necessitating special

action which would apply to the Government and others pursuing similar

initiatives, the cost of the special action necessary to comply with

the requirements will be included in project costs and will be shared

as a construction cost in accordance with the cost sharing provisions

of WRDA 1986. Land value credited to a non-Federal sponsor will be

the fair market value of the land in the condition acquired,

considering any contamination that may be present. Investigations

will be undertaken during the planning phase to indicate the presence

of contaminated material in the project area. Any required action

(e.g., remediation, treatment, handling, disposal) will be included in

the design and cost estimate as part of the project. If, prior to

initiation of project construction, the non-Federal sponsor wishes to

accomplish the required action, the action is considered to be a

separate undertaking, independent of the Civil Works project. 

Therefore, for project cost and economic analysis the value of the

land is the fair market value after the required action. The non-
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Federal sponsor receives credit for the fair market value of the land

after the required action, but does not receive credit for the cost of

undertaking the required action.

6-18. Dam Safety Assurance. Dam safety assurance modifications are

those modifications which are required by new hydrologic or seismic

data or changes in state-of-the-art design or construction criteria

deemed necessary for safety purposes. These criteria are defined more

specifically in ER 1110-2-1155. Work that does not meet these

criteria is accomplished as maintenance or as major rehabilitation. 

All dam safety assurance modifications are subject to the cost sharing

requirements of Section 1203 of WRDA 1986:

 a. Section 1203(a)(1). Costs incurred in dam safety assurance

modifications shall be recovered: Fifteen percent of the cost of the

modification is to be assigned to project purposes in accordance with

the cost allocation in effect for the project at the time the

modification is initiated, and shared in accordance with cost sharing

in effect at the time of initial project construction. Costs assigned

to irrigation will be recovered by the Secretary of the Interior in

accordance Public Law 98-404. The basis for cost sharing will be the

cost sharing for the basic project, based on a cost allocation,

project or local cooperation agreement, letter of assurance from a

local interest, or contract for use of storage, whichever was used for

initial project construction cost sharing or for subsequent

reallocation.

 b. Section 1203(a)(2). Repayment of costs, except for costs

assigned to irrigation, may be made, with interest, over a period not

to exceed 30 years from the date of completion of the work.

 c. Cost Recovery. Recovery of the non-Federal share of the

dam safety assurance modification cost will be determined by the

current arrangement for project cost recovery. For costs which are

reimbursable through the sale of power, the share of dam safety cost

will be reported to the power marketing agency for recovery in the

same manner as major rehabilitation costs. For cost sharing based on

a project local cooperation agreement which does not have a provision

for dam safety cost sharing, the agreement will need to be modified to

include the dam safety costs, or a new agreement will be required. 

Where the project cost sharing was based on a letter of intent, an

agreement will be negotiated with the sponsor. In the case of water

supply, the existing contract may need to be modified, or a new

contract signed to cover the dam safety cost sharing. If no current

agreement addresses this cost, the sponsor may elect to repay the

cost, with interest, over a period of 30 years.

6-19. Correction of Design or Construction Deficiencies. Proposals

for correction of design or construction deficiencies evident in

completed Corps projects will be cost shared as follows:

 a. A reconnaissance-type initial appraisal and report will be

made at full Federal expense. This reconnaissance report will serve

as the decision document.

 b. If a proposal for corrective measures is made and adopted,

involving cost sharing, a PCA to cover the cost sharing requirements

shall be executed prior to accomplishment of further work on the

adopted project. Consistent with this guidance, the PCA shall provide

that:
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 (1) All further preconstruction engineering and design work

will be cost shared in the same percentages as specified in Public Law

99-662 for the project purposes.

 (2) Construction costs will be shared in the same percentages

as specified in WRDA 1986, as amended, for the project purposes.

 c. Provision of the non-Federal share of preconstruction

engineering and design costs may be deferred until the first year of

corrective measures construction. The non-Federal share of the

construction costs will be provided, in each year of construction,

proportionate to the anticipated Federal expenditures in that year. 

 
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CHAPTER 7

REPORT PREPARATION, PROCESSING AND PROJECT

AUTHORIZATION, DEAUTHORIZATION

7-1. Preauthorization Planning Reports.

 a. Types and Objectives. Feasibility studies are undertaken in

response to specific Congressional direction or other available

authority, with the basic objective of formulating recommendable

solutions to water resources problems. Several kinds of planning

reports are prepared, depending on the genesis of the study, to

document results and seek project authorizations.

 (1) Feasibility (Survey) Report. This report is prepared in

partial or full response to a Congressional study authority. (When in

partial response it is referred to as an "interim" feasibility report,

unless it follows one or more such reports and completes response to

the study authority. Then it is referred to as the "final"

feasibility report.)

 

 (2) Section 216 Report. This is a feasibility (survey) report

to Congress recommending changes to a completed project. Decision to

undertake feasibility studies and prepare a report rests with the

Corps. Such reports are authorized by Section 216 of the Flood

Control Act of 1970.

 (3) Fish and Wildlife Report. This is a report to Congress

recommending the addition, to an authorized project, of land

acquisition and other measures for fish and wildlife purposes as

warranted but not provided for in the project authority. Such reports

are prepared under authority of Section 2 of the Fish and Wildlife

Coordination Act or, if the project is complete, under Section 216.

 b. Organization and Content. It is intended that each report

be a complete decision making document. Detail shall be sufficient to

fully support the essential analyses and conclusions of the study, to

support the recommendations, and to enable reviewers to understand the

rationale for the conclusions and recommendations. The main report

will describe and summarize the results of studies so that, in

combination with conclusions and recommendations, it will constitute a

cohesive, readable document easily understood by interested laymen. 

The report shall demonstrate conformance with WRC's Principles and

Guidelines (P&G) including suitable consideration of the National

Environmental Policy Act (NEPA) and other environmental statutes. If

recommendations are for authorization of a Federal project or other

overt Federal action, the main report will incorporate a concise

environmental assessment (EA) or environmental impact statement (EIS)

whichever is most appropriate. Particular care shall be given to so

writing the report recommendations that, should Congressional

authorization be provided by reference thereto, there can be no doubt

about what was intended and what is authorized. (See paragraph 5-13)

 c. Study Conduct. Feasibility studies will be conducted in two

phases to provide a mechanism to accommodate greater non-Federal

participation in Corps feasibility studies. The reconnaissance

(first) phase will provide a preliminary indication of the potential

of the study to yield solutions which could be recommended to the

Congress as Federal projects. The results will provide the basis for

evaluation, within and outside the Corps and the Administration, of

the merits of continuing the study and allocating feasibility phase
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funds. The reconnaissance phase is expected to accomplish the

following four essential tasks:

 (1) Determine that the water resource problem(s) warrant

Federal participation in feasibility studies. Comprehensive review of

other problems and opportunities is deferred to feasibility studies.

 (2) Define the Federal interest based on a preliminary

appraisal consistent with Army policies, costs, benefits, and

environmental impacts of identified potential project alternatives.

 (3) Prepare a Management Plan.

 (4) Assess the level of interest and support from non-Federal

entities in the identified potential solutions and cost sharing of

feasibility phase and construction. A letter of intent from the nonFederal sponsor stating the willingness to pursue the feasibility

study described in the Management Plan and to share in the costs of

construction is required.

The reconnaissance phase shall be based on the P&G and the needs of

prospective non-Federal sponsors. The outputs of the reconnaissance

phase are a Section 905(b) (WRDA 86) Preliminary Analysis and a

Management Plan. The feasibility (second) phase will be conducted

under current Federal guidelines and statutes and will result in a

feasibility report with a recommendation to Congress. This two-phase

procedure is intended to result in concentration of resources on those

studies with substantial non-Federal support, and should increase the

proportion of completed studies that lead to implementation of

projects.

 d. Programming. Feasibility studies, once initiated, are to be

prosecuted with a view to completion in as short a period as possible

and at the least cost consistent with achieving sound, professional

determinations and quality reports. The reconnaissance phase should

be scheduled for completion within 6-12 months from initial

obligation of funds to a signed Feasibility Cost Sharing Agreement

(FCSA). The feasibility phase should, normally, be completed in no

more than three years from the date of the first allotment of funds

after completion of the reconnaissance phase. Reporting officers must

be alert to the need to terminate study at any time when accumulated

information establishes this is advisable. When no recommendation for

Federal action can be made, the goal is nevertheless to conclude the

study in such a way that a useful product can be provided to nonFederal interests. Report organization will be the same as for

reports in which Federal action is recommended, but abbreviated to the

essential information needed to support the recommendation, consistent

with the level of study. It may, however, be expansive enough to

record any basic data developed in the course of study which might be

of future use to local interests.

7-2. Processing and Review of Preauthorization Planning Reports.

 a. Assignment. Investigations of potential water resources

projects by the Corps are commonly authorized in acts or resolutions

of Congress. After the President has signed a Congressional Act

authorizing an investigation, or after the Chief of Engineers has

received formal notification of a committee resolution authorizing an

investigation, the Chief of Engineers normally assigns the task of

report preparation to (1) the division which has jurisdiction in the

area subject to investigation, who in turn, assigns the task to the
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district for the location; or (2) the Mississippi River Commission, in

the case of localities under jurisdiction of that commission, who then

will normally assign the task to the district for the location.

 b. Single Review. Feasibility reports will be reviewed only

once. Technical review is accomplished at the district level, and

policy compliance review is accomplished at HQUSACE. HQUSACE policy

compliance review focuses on underlying assumptions, conclusions and

recommendations, and analyses in the context of established policy and

guidance. Districts are responsible for the quality and accuracy of

the technical aspects of the feasibility report. Major Subordinate

Commands are responsible for quality assurance of the district review

process. The goal is to resolve issues and policies as they arise

during the course of the feasibility study rather than identifying and

resolving issues after the feasibility report is prepared. 

 c. HQUSACE Policy Compliance Review. Transmittal letters

forwarding the feasibility report are sent to the Director of Civil

Works with a copy to the Chief of Planning Division. Concurrently

copies of the feasibility report and transmittal letter will be sent

to the Policy Division (CECW-A) for initiation of the policy

compliance review. HQUSACE goal is to initiate the state and agency

review as soon as possible after receipt of the feasibility report and

complete all other HQUSACE review actions necessary to process the

report immediately after the state and agency review period expires. 

HQUSACE policy compliance review of feasibility reports will

concentrate on the adequacy of district compliance with the Project

Guidance Memorandum. After completion of the state and agency review,

and after HQUSACE has completed its review of the final feasibility

report, the Chief of Engineers will sign the final Chief's Report and

transmit the report package to the Assistant Secretary of the Army for

Civil Works (ASA(CW)).

 d. Consideration by Office Management and Budget (OMB). The

report package, along with a copy of ASA(CW)'s proposed letter of

transmittal to Congress, is furnished to OMB by the Office of the

Assistant Secretary for review and determination of the relationship

to the program of the President. (Executive Order 12322)

 e. Submission by the Secretary of the Army. ASA(CW)'s letter

transmits the report of the Chief of Engineers and accompanying

papers, including a letter from OMB setting forth its views, to

Congress. This constitutes the final step in the processing of

feasibility studies authorized by Congress.

7-3. Authorization of Plans for Improvements. Projects undertaken

under the Civil Works program receive specific authorization by

legislative action of the Congress, except for projects under certain

continuing or special authorities. Upon receipt of a report in

Congress, it is referred to the Senate Environment and Public Works

Committee (SEPWC) and House Transportation and Infrastructure

Committee (HTIC). Reports that contain recommendations for

authorization or information which should be made readily available

for future reference are printed as a House or Senate Document and

become the basis for Congressional authorization action. Reports

which do not contain recommendations for authorization are usually not

printed but are available to the committees for consideration. The

committees or individual members of Congress may introduce a special

bill proposing authorization of a particular project. Usually, the

reports are accumulated and are considered by the committees for

inclusion in an omnibus authorization bill. However, projects of less
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than $15 million Federal cost may be approved by resolutions of both

Committees.

 a. Congressional Hearings. The SEPWC and HTIC establish a

schedule of hearings. Each report is discussed at their hearings to

permit the Corps to present a brief summary of information and to

permit interested members of Congress, other Federal agencies, the

States and the public, opportunity to present their views.

 b. Authorization of Projects under $15 million Federal Cost. 

Section 201 of the 1965 Flood Control Act, Public Law 89-298, as

amended, provides a procedure for authorization of projects with an

estimated Federal first cost of construction of less than $15 million. 

Under the Section 201 procedures, qualifying projects may be

authorized upon adoption of approval resolutions by both SEPWC and

HTIC. The decision to recommend authorization in accordance with

Section 201 is made by the Secretary of the Army. Such recommendation

is made in the letter transmitting the study report to Congress. Use

of this authority will be recommended by the Secretary of the Army

only in those cases where there is little or no controversy and there

is no departure from established policy.

7-4. Preconstruction Engineering and Design. Preconstruction studies

are required to establish the basic design of the project features in

final detail. The further planning and engineering study and

reporting efforts required subsequent to completion of the

preauthorization feasibility report are discussed in Chapter 9.

7-5. Deauthorization Review Program. 

 a. Studies. Section 710 of WRDA 1986 requires an annual Corps

submission to Congress of a list of authorized but incomplete

preauthorization feasibility studies which have not had funds

appropriated during the preceding five full fiscal years. Submission

of the list will not constitute a recommendation for deauthorization,

but merely fulfillment of the requirement to provide a list of studies

that meet the criteria for listing as set by Congress. Congress then

has until 90 days after its submission to appropriate funds for

studies on the list. Any studies which do not have funds appropriated

before the end of the 90-day period will, thereafter, no longer be

authorized.

 b. Projects. The provisions of Section 1001 of WRDA 1986

provide for automatic deauthorization of projects specifically

authorized by Congress. They supercede all requirements and

provisions of Section 12 of Public Law 93-251, as amended.

 (1) Section 1001 provides criteria for submission of a list to

Congress identifying any unconstructed project or separable element

that has not had funds obligated during 7 full fiscal years. 

Submission of the list does not constitute a recommendation for

deauthorization, but rather fulfillment of the requirement to submit a

list of projects meeting the criteria set by Congress. A project or

separable element on the list which does not have funds obligated

within the 30-month period following submission of the list to

Congress is no longer authorized after that period. A list of those

projects and separable elements meeting the Section 1001 criteria is

required every two years.
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 (2) Pursuant to Section 1001, the lists of projects and

separable elements deauthorized in accordance with (1) above, will be

published in the Federal Register.

 
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8-1

CHAPTER 8

PROGRAMMING, BUDGETING AND APPROPRIATIONS

8-1. Program Development.

 a. General. The Corps of Engineers' annual recommendation for

the Civil Works Program is submitted by the Assistant Secretary of the

Army for Civil Works (ASA(CW)) to the Office of Management and Budget

(OMB) for review in behalf of the President. The recommendation is

prepared in HQUSACE in consultation with the ASA(CW) after review and

analysis of recommendations of the division commanders. Submissions

are based on principles and requirements outlined in the annual

program guidance and OMB circulars. OMB places specific ceilings on

overall funding, associated employment strength, and spending for the

Civil Works program .

 b. Agency Submission. Agencies of the Executive Branch of

Government develop recommendations for the President's Program and

Budget in compliance with the guidelines set forth in OMB Circular

A-11, and within overall funding and spending ceilings set by OMB. 

The Corps publishes its own annual program guidance incorporating

requirements of OMB Circular A-11 and policy and related guidance of

HQUSACE and ASA(CW). Existing activities (projects, studies,

programs) are reexamined to determine their validity and necessity. 

Each activity is rejustified as to funding, manpower requirements, and

spending each time a program is prepared. The process involves

assigning a priority to individual studies and projects.

 c. OMB Passback. The Corps of Engineers recommended Civil

Works Program is defended by ASA(CW) and HQUSACE at hearings before

OMB. Following the hearings, OMB reviews and revises the recommended

program in accordance with then prevailing objectives and criteria of

the Administration. The program is evaluated against recommended

programs of other agencies to determine its relative performance in

meeting the Administration's requirements. OMB “passes back”, through

ASA(CW), tentative overall funding, employment, and spending

allowances for programs, studies, and projects; and other guidance, as

conditions warrant. ASA(CW), together with HQUSACE, reviews the OMB

passback and submits one or more appeals, as warranted. Subsequently,

the President’s Program and Budget are prepared and submitted to the

Congress, usually in February.

 d. Program Defense and Congressional Hearings. Following

establishment of the President's Program and Budget, the Corps

prepares supporting data and defends the President's Program and

Budget at hearings before the House and Senate Appropriations

Committees. The Corps fully supports the President's Program and

Budget. Testifying Officers do not encourage appropriations in 

amounts different than budgeted. Congress reviews and revises the

President's Program and Budget based on then prevailing objectives of

the Congress. The Congress has established a budget process and

timetable for completing specific activities towards establishing the

annual appropriation and revenue amounts. The Congressional Budget

and Impoundment Control Act of 1974 (Public Law 93-344), as amended,

principally by Title XIII (Budget Enforcement Act) of the Omnibus

Budget Reconciliation Act of 1990 (Public Law 101-508), establishes

these requirements.

 e. Capabilities.
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 (1) The capability for any specific project or study is the

maximum amount of funding that could be used efficiently in the fiscal

year if that project or study were the first added increment over the 

recommended program for a given district. The capability amount does

not reflect budgeting or fiscal constraints, but does reflect manpower

constraints, sound engineering practice and the timing of funds

availability. If a district has the capability to initiate or

increase funding for any study or project in addition to the basic

program, it normally would have a capability to initiate or increase

any other study or project, unless there are specific factors

justifying a zero capability or lack of increase.

 (2) Capability amounts may be released to anyone but only in

response to a specific request. Capability amounts are not

volunteered. They are expressed in accordance with formally specified

language. Part of that language notes that while the Corps can use

additional funds on individual projects and studies, offsetting

reductions would be required to maintain overall budgeting objectives. 

(ER 11-2-240, ER 11-2-220)

 f. Disclosure of Budgetary Information. All budgetary data,

such as the budget recommendations of the district commanders, the

division commanders, the Chief of Engineers, and the Secretary of the

Army are of a confidential nature. These data are not to be released

outside of the Department of the Army, except in response to specific

questions from Congressional Committee members and staff during

official testimony on the President's Budget requests. When all

hearings on the President's Program and Budget have been completed by

the Appropriations Committees of Congress, disclosure is then only in

response to a written request from a Member of Congress to the

Director of Civil Works. The President's Budget amounts are not

disclosed until after the budget message is presented to the Congress. 

In those cases where OMB releases budget amounts to congressional

committees prior to presentation of the budget message, those amounts

may be discussed with members and staff of those committees only. 

Budgetary records may be disclosed to the public, if otherwise

appropriate, upon request pursuant to the Freedom of Information Act

following the end of the fiscal year to which such information

pertains. (ER 11-2-240, ER 11-2-220, ER 360-1-1)

8-2. Appropriations.

 a. General. The Corps policy is to allocate and use

appropriated funds as closely as practicable in accordance with the

program presented to the Congress, including any modifications by the

Congress in its action on the Appropriations bill. Allowances for

surveys and projects agreed to by the conferees at the time of

passage of the annual Energy and Water Development Appropriations

Bills are referred to as appropriations, even though these amounts are

subject to reductions when making final allocations to district

commanders. The reduction is necessary to distribute an overall

Appropriation Title reduction for "savings and slippage" and other

undistributed reductions applied by Congress to the total of the

individual allowances.

 b. Deferral and Rescission Actions Under Public Law 93-344.

 (1) Deferrals. Deferrals are the withholding or delaying of

obligation or expenditure of budget authority provided for projects or

activities. Deferrals also include any other type of Executive action

or inaction which effectively precludes the obligation or expenditure
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of budget authority. Whenever the President, the Director of OMB, the

head of any department or agency of the United States, or any other

officer or employee of the United States proposes to defer any budget

authority provided for a specific purpose or project, the President

shall transmit to the House of Representatives and the Senate a

special message. A deferral may not be proposed for any period of

time extending beyond the end of the fiscal year in which the special

message proposing the deferral is transmitted to the House and the

Senate. Any amount of budget authority proposed to be deferred shall

be made available for obligation if either House of Congress passes a

resolution disapproving such proposed deferral. Otherwise, the funds

proposed for deferral become available at the start of the next fiscal

year or on the earlier date specified in the deferral message.

 (2) Rescissions. Rescissions are the permanent withdrawal of 

funding authority because such authority is not required to carry out

the full objectives and scope of the appropriations concerned. A

rescission differs from a deferral in that there is no intent ever to

spend the funds being proposed for rescission. In effect, it is a

de-appropriation. A rescission message to Congress is required

whenever the President determines that all or part of any budget

authority will not be required to carry out the full objectives or

scope of programs for which it is provided or that such budget

authority should be rescinded for fiscal policy or other reasons

(including the termination of authorized projects or activities for

which budget authority has been provided), or whenever all or part of

budget authority provided for only one fiscal year is to be reserved

from obligation for such fiscal year. The President is required to

transmit to both Houses of Congress a special message. Congress must

pass a resolution within 45 days for a rescission to be implemented.

 c. Reprogramming. 

 (1) The Appropriations Committees have delegated to the Chief

of Engineers the authority to reprogram funds among projects in the

construction category, not to exceed 15 percent of the amount

available for obligation to a project for any fiscal year, including

the Conference allowance plus the unobligated balance at the beginning

of the fiscal year. An exception to the percent limitation permits

the reprogramming of up to $300,000 for projects on which the amount

available for the fiscal year is $2,000,000 or less. A second

exception permits the reprogramming of up to $5,000,000 for settled

contractor claims, accelerated contractor earnings, or real estate

deficiency judgments. Reprogramming beyond these limits must be

coordinated with the Appropriations Committees. Funds cannot be

reprogrammed from one appropriation account to another without an act

of Congress such as a supplemental appropriation. (ER 11-2-201)

 (a) Surveys and Preconstruction Engineering and Design

reprogramming are approved on a different basis. The minimum

reprogramming authority is $25,000 in any case. Where existing

allowances equal or exceed $25,000, the reprogramming authority is 100

percent up to $50,000 and 25 percent of the increment over $50,000,

not to exceed a total of $150,000.

 (b) Reprogramming within the above cited limits is made only to

those projects and surveys which have previously received an approved

allocation through the budgetary process.

 (c) Unless specifically limited by Congress, reprogramming

between operations and maintenance items is without limit and is
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approved on a case-by-case basis considering the urgency,

justification, and availability of funds.

 (2) District and Division Commanders Authority. Within the

reprogramming authorities of the Commander, USACE, division and

district commanders have been delegated authority to reprogram, within

limits prescribed by HQUSACE, to optimize program progress within

Administration and Congressional guidelines. (ER 11-2-201)

 d. Overprogramming. Overprogramming is the establishment of

progress goals slightly higher than possible by use of then available

funds. For high priority activities, division commanders are

encouraged to prepare advance plans for application of additional

funds, should such funds become available for reprogramming due to

unanticipated slippages in other similar activities. The purpose of

overprogramming is to provide better utilization of current year funds

and to reduce carryovers of unobligated and unexpended balances. 

Overprogramming of activities must be consistent with anticipated

funding in the following fiscal year. (ER 11-2-240)

8-3. Budget Year New Starts. The Corps budget recommendation to OMB

each year includes a separate section of the budget memorandum which

identifies each new start in many subprograms. These include

reconnaissance studies, preconstruction engineering and design,

construction of specifically authorized projects, major rehabilitation

of federally maintained projects, reconstruction of non-Federally

maintained projects, and large Revolving Fund items, such as dredges. 

Also considered under the Other New Starts category are separable

elements of continuing construction projects, deficiency corrections,

resumptions of construction, and initiation of construction of

previously funded new starts. Current budget procedures involve a

joint effort of the staffs of the Chief of Engineers and ASA(CW) in

developing criteria for selection of each category of new starts to be

recommended to OMB for inclusion in the President's Budget. These

criteria are published each year in the budget guidance for the year. 

The selection is made so as to fit, together with the continuing

program, within the budget ceiling which OMB had established for the

budget year.

8-4. Classification of Projects. The inventory of uncompleted

authorized projects is divided into three categories, "Active,"

"Deferred," and "Inactive." (ER 11-2-240)

 a. Classification Criteria.

 (1) "Active" Category. Projects considered to be necessary and

economically justified; engineeringly feasible without requiring

modification of the authorized plan beyond the discretionary authority

of the Chief of Engineers; generally supported by local interests; and

with no anticipated major problems of compliance with requirements of

local cooperation.

 (2) "Deferred" Category.

 (a) Projects for which a restudy is necessary to determine

whether they are economically justified.

 (b) Projects not opposed by local interests, but for which

local interests are currently unable to furnish the required

cooperation.
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 (c) Projects whose authorized plan could be significantly

affected by an authorized survey investigation and, therefore, should

not be undertaken pending the outcome of the survey and Congressional

action based thereon.

 (3) "Inactive" Category.

 (a) Authorized projects with obvious lack of economic

justification and for which it is apparent that a current restudy

would not develop an economically justified plan;

 (b) Projects which, as authorized, are not adequate to meet

current and prospective needs, and which would require such

substantial modifications and involve such increased costs to obtain

an adequate improvement that they should not proceed without new

authorization.

 (c) Projects generally opposed by local interests, or for which

there is no reasonable prospect that the required local cooperation

will be forthcoming.

 (d) Projects, or parts thereof, which have been accomplished by

local interests, or another agency, or which have been superseded by

another project, or for other reasons are no longer required. 

 b. Reclassification. Recommendations for reclassification of

projects may be made by district commanders as the need develops. The

division commander is the approval authority for all reclassifications

to deferred or inactive. Requests for reclassification to active must

be approved at HQUSACE (CECW-P). (ER 11-2-240)

8-5. Acceptance and Return of Contributed or Advanced Funds.

 a. Categories.

 (1) "Required Contributed Funds" are provided by non-Federal

interests as specified in the authorizing project document and

included in the terms of the project cooperation agreement, to be

used in association with Federal funds, for the accomplishment of

authorized Federal project construction work.

 (2) "Non-required Contributed Funds" are gratuitously provided

by non-Federal interests (i.e., there is no requirement to

contribute, no repayment, and no credit) to be used, in association

with Federal funds, for accomplishment of portions of an authorized

Federal project (i.e., a project which has been authorized by a Water

Resources Development Act or similar Act, or authorized for planning

and design by House and Senate resolutions).

 (3) "Contributed Funds, Other" are provided by non-Federal

interests to be used, in association with appropriated Federal funds, 

for constructing a special feature of an authorized Federal project 

desired by non-Federal interests, for locally desired betterments, or

for improvements intended to be accomplished by non-Federal interests

with their own resources.

 (4) "Advanced Funds" are non-Federal funds contributed in the

absence of Federal project funding to finance Federal construction of

all or part of an authorized Federal project.
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 (5) "Other Non-Federal Funds" are non-Federal funds received

for acquiring lands, easements, and rights-of-way or performing

relocations required to be provided by and which are the obligation of

non-Federal interests pursuant to the terms of project cooperation

agreements (PCAs), or for design and/or construction of facilities

physically related to the authorized Federal project and desired by

the non-Federal sponsor, including betterments.

 b. Acceptance. District commanders are authorized to accept

"Required Contributed Funds" once a PCA has been executed. District

commanders are authorized to accept "Other Non-Federal Funds"

pursuant to the terms of relocation agreements or agreements with nonFederal interests as provided in PCAs. Action by ASA(CW) is required

prior to acceptance of "Non-required Contributed Funds," "Contributed

Funds, Other," and "Advanced Funds." "Non-required Contributed Funds"

and "Contributed Funds, Other" cannot be accepted until Federal funds

have been appropriated for the work to which they relate and until

informing the Appropriations Committees of the Congress of such

proposed action. The authority to accept “Non-required Contributed

Funds” and “Contributed Funds, Other” in the amount of $2,000,000 or

less may be exercised by district commanders for certain actions under

the Operations and Maintenance (O&M) Program (See paragraph 10 of ER

1165-2-30). The authority to accept "Advanced Funds" shall be 

exercised by district commanders only after prior approval by

HQUSACE, the ASA(CW), OMB, and notification of the Appropriations

Committees of the Congress prior to negotiation of the agreement for

advanced funds. (See paragraph 11 and Appendix A of ER 1165-2-30)

 c. Return. Action by ASA(CW) is required for the return

(refund or repayment) of all "Advanced Funds" contingent upon

availability of the funds. Authority for return of excess or unused

portions of contributed funds is normally granted concurrently with

approval for acceptance. District commanders are authorized to return

unused portions of "Required Contributed Funds", "Non-required

Contributed Funds," "Contributed Funds, Other," and "Other Non-Federal

Funds" as part of the final settlements of non-Federal cooperation

requirements and relocation agreements. (ER 1165-2-30, ER 37-2-10)

 d. Time and Manner of Payment. Unless otherwise specifically

set out in authorizing documents or general legislation, contributions

will be received prior to initiation of construction of facilities to

which they apply. In the event the project is programmed for

accomplishment over a considerable period of time, escrow arrangements

may be established. In addition, Section 40 of the Water Resources

Development Act of 1974 authorized annual installment payments of

"Required Contributed Funds" during the construction period. When

escrow accounts are established, sufficient funds are deposited in the

Federal Treasury to cover the non-Federal share of the work prior to

obligation of funds. (ER 1165-2-30)

8-6. Credit or Reimbursement for Non-Federal Work on Projects. 

Pursuant to Section 215 of the Flood Control Act of 1968 (Public Law

90-483), as amended, ASA(CW) may execute agreements providing for

credit or reimbursement to states or political subdivisions thereof

for construction work undertaken at authorized projects. As provided

in Section 215, reimbursement may take the form of cash repayment or

crediting the non-Federal sponsor for an equivalent reduction in the

project contributions the local sponsor would otherwise be required to

make pursuant to a PCA for the project. In practice, the non-Federal

interests will be initially compensated by crediting the value of

their work against the local contributions toward the Federal project
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required by the governing legislation (credit cannot, however, be

given against the minimum 5 percent cash contribution required for

structural flood control projects). Reimbursement by a cash payment

will be allowed only to the extent the value of their work exceeds the

total of required non-Federal contributions against which credit may

be given. (ER 1165-2-18)

 a. Limits. The Section 215 authority will not be used in

connection with projects authorized under continuing authorities. Use

is limited to projects specifically authorized by Congress and cases

that meet all of the following conditions:

 (1) The work, even if the Federal Government does not complete

the authorized project, will be separately useful or will be an

integral part of a larger non-Federal undertaking that is separately

useful;

 (2) The work done by the non-Federal entity will not create a

potential hazard;

 (3) Approval of the proposal will be in the general public

interest;

 (4) Only work commenced after project authorization and

execution of a Section 215 agreement is eligible for reimbursement or

credit;

 (5) Proposed reimbursement (credit and/or repayment) will not

exceed the greater of $5 million or 1 percent of total project costs

and is limited to the amount that the district commander considers a

reasonable estimate of the reduction in Federal project expenditures

resulting from the construction of the project component by the

non-Federal entity. (The $5 million limitation is set by Section 224, 

WRDA 1996, Public Law 104-303, and the 1-percent limitation is set by

Section 12, WRDA 1988, Public Law 100-676.) 

 b. Congressional Notification. Before negotiation of an

agreement under Section 215 begins, the ASA(CW) will inform the

Chairman (Senate and House), Subcommittee on Energy and Water

Development, Committee on Appropriations of the proposed arrangements. 

 c. Timing of Reimbursement. Any reimbursement shall depend

upon appropriation of funds applicable to the project and shall not

take precedence over other pending projects of higher priority. (ER

1165-2-18)
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CHAPTER 9

PRECONSTRUCTION ENGINEERING AND DESIGN

AND

ENGINEERING DURING CONSTRUCTION

9-1. Preconstruction Engineering and Design Studies (PED). This

phase of project development encompasses all planning and engineering

necessary for project construction, after release of the Division

Engineer's Public Notice on a favorable preauthorization study. These

studies are required to review the earlier study data, obtain current

data, evaluate any changed conditions, establish the most suitable

plan for accomplishment of the improvement and establish the basic

design of the project features in final detail. Preconstruction

planning and engineering studies for projects authorized for

construction will be programmed as "continuing" activities. For

projects authorized for planning, engineering and design only by the

Water Resources Development Act (WRDA) of 1986, studies will be

budgeted only after "new start" selection by the Assistant Secretary

of the Army for Civil Works (ASA(CW)) and concurrence by the Office of

Management and Budget (OMB). The results of preconstruction planning

and engineering studies are presented in reports identified as "design

memorandums." Preparation of design memorandums, and plans and

specifications will be cost shared in accordance with the cost sharing

required for project construction. The non-Federal share of costs for

this work will ordinarily be recovered during the first year of

construction. Current engineering guidance respecting document

preparation and approvals should be consulted. (ER 1110-2-1150)

9-2. Preconstruction Engineering and Design (PED) Agreement. The

model agreement for PED was approved by the ASA(CW) on 1 October 1996. 

Under this model PED agreement, no non-Federal credit will be given

for non-Federal costs to negotiate the project cooperation agreement

(PCA). However, non-Federal credit for PED Coordination Team costs

incurred during the period of PED will be provided in accordance with

the policy below. 

 a. Projects With PED Agreements. Credit for PED Coordination

Team activities will be provided to non-Federal sponsors. Credit will

be against the 25-percent cash payment for PED by non-Federal sponsors

that have entered into a PED agreement.

 b. Projects Without PED Agreements. Credit for PED

Coordination Team activities will be provided under the following

criteria:

 (1) A PED Coordination Team has been established and nonFederal sponsor coordination activities to be credited occurred after

the establishment of the PED Coordination Team.

 (2) Only PED Coordination Team activities after 1 October 1996

are creditable. 

 (3) PED Coordination Team activities eligible for credit are

activities involving the oversight of issues related to PED, including

scheduling of report and work products; plans and specifications;

anticipated real property and relocation requirements for construction

or implementation of the project; contract awards and modifications;

contract costs; the Government’s cost projections; anticipated

requirements and needed capabilities for performance of OMRR&R of the

project; and other related matters. Eligibility of expenses for
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credit will depend upon documentation that the expenses were incurred

during the PED period in accordance with the audit and other financial

standards established in model PCAs language. 

9-3. Project Modifications. Congressional authorizations of Corps

projects normally include a provision for implementation of the

recommended plan with such modifications as the Chief of Engineers may

deem advisable, in the interest of the purposes specified. However,

for projects authorized or amended in WRDA 1986 (or in any law enacted

after WRDA 1986 or amendment thereto) the total modified project cost,

exclusive of price level changes, may not exceed 120 percent of the

cost authorized in that Act without further congressional approval. 

Procedures for adoption of proposed project changes differ depending

on whether they may be approved by the Chief of Engineers using such

delegated discretionary authority or must be submitted to Congress for

consideration and legislative modification of the existing

authorization. To a limited extent, approval authority for some

changes which are within the Chief's discretion has been redelegated

to the division commanders. Where proposed changes are more

significant, they are documented in a Post Authorization Change (PAC)

Notification Report submitted to HQUSACE (unless timely coverage can

be provided in a design memorandum or other routine preconstruction

planning document submitted to HQUSACE). If it is determined, after

review, that the proposed changes are not within delegated authority

but are of sufficient importance to warrant a recommendation for

modification of the project authorization, procedures and further

reporting requirements for processing such a recommendation to the

Congress will be selected as best suits that specific case. 

Occasionally, a project may warrant modification because its original

development was inherently deficient. Given certain conditions,

measures to correct such deficiencies may be undertaken (see paragraph

11-4). (ER 1165-2-119)

 a. Modification Authority Delegated to the Chief of Engineers. 

Modifications and changes of a project necessary for engineering or

construction reasons to produce the degree and extent of flood

protection or the extent of navigation improvement or other purpose

intended by the Congress are within the latitude delegated to the

Chief of Engineers. Examples of such changes are shift of a dam to a

nearby better foundation location; changes in channel alignment and

dimensions indicated by more detailed studies; changes from a concrete

to an earth structure because of lack of proper concrete aggregate; or

moderate extensions of project scope, such as necessary to provide

flood protection to adjacent urban areas developed since the project

was authorized. The Chief of Engineers recognizes that this latitude

for changes and modifications of authorized projects is an important

delegation of authority which must be exercised carefully. Changes

involving the addition of project purposes, significant changes in

project cost, scale, features, benefit, location, and costs allocated

to reimbursable project purposes require notification of OMB.

 b. Modifications Beyond Delegated Authority. A proposed

modification of an authorized project is brought to the attention of

Congress if study after authorization shows that: the scope of

functions of the project will be changed materially; the plan of

improvement will be materially changed from that originally authorized

by Congress; special circumstances exist which were not known to the

Corps or recognized by Congress when the project was authorized; or,

for projects authorized or amended in WRDA 1986 (or in any law

enacted after WRDA 1986 or amendment thereto), the updated estimate of

total project costs exceeds the limitation on increases set in that
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Act. Decisions regarding project modifications are made on an

individual case basis. Questionable cases are reported to HQUSACE in

a PAC report (if not as one subject in a routine precontruction

planning document of broader project coverage) with the views and

recommendations of the division and district commander. 

Recommendations for modifications beyond the authority delegated to

the Chief of Engineers are submitted to the ASA(CW) with supporting

documentation suitable to the case, for review and subsequent

transmittal to Congress for authorization.

9-4. Design Sizing of Projects. The basic scope of projects is

established in the project authorization and, if necessary, reaffirmed

in a subsequent Design Memorandum or other post-authorization report. 

Modification of the project from authorized dimensions may require

additional authorization in accordance with paragraph 9-3.

 a. Flood Control. Flood damage reduction projects are 

authorized to provide a specific "degree of protection" with a given

"degree of certainty". The "degree of protection" and the certainty

with which it is provided for a particular project is the measure of

flood severity and the certainty for its elimination of detrimental

flood effects downstream from a reservoir or within the confines of a

local flood protection project. This type of presentation gives the

decision makers the opportunity to assess the degree of protection and

the costs associated with increasing the certainty of obtaining the

degree of protection desired. Risk based analysis is an approach to

evaluation and decision making that explicitly, and to the extent

practical, analytically, incorporates considerations of risk and

uncertainty in the engineering and economic analysis of a project. 

Such analyses are particularly useful in evaluating levees and

floodwalls, where the consequences of an overtopping may be severe and

the benefits of increasing the certainty of protection may make such

action desirable.

 

 b. Navigation. Navigation projects are generally authorized to

provide a channel of specific dimensions. In accordance with Section

5 of the River and Harbor Act of 1915 channel depths generally signify

the depth at mean low water in tidal waters tributary to the Atlantic

and Gulf coasts, at mean lower low water in tidal waters tributary to

the Pacific coast, and the mean depth for a continuous period of 15

days of the lowest water in the navigation season of any year in

rivers and non-tidal channels. Authorized channel dimensions are

understood to permit increase at entrances, bends, sidings and turning

places to allow free movement of vessels. Authorized channel depths

include allowances for vessel draft, squat, roll, pitch, yaw and

underkeel clearance. (EM 1110-2-1607, ER 1110-2-1403, 1457, 1458)

9-5. Aesthetic Treatment and Environmental Design. All project

features are designed so that the visual and human-cultural values

associated with the project will be protected, preserved, or

maintained to the maximum extent practicable. Specific ecological

considerations include actions to preserve critical habitats of fish

and wildlife; accomplish sedimentation and erosion control; maintain

water quality; regulate streamflow, runoff and groundwater supplies;

and avoidance or mitigation of actions whose effect would be to reduce

scarce biota, ecosystems, or basic resources. In the development of

individual project features, consideration is given to the needs for

architectural design, land treatment or other resource conservation

measures. Emphasis is given to developing measures for realizing the

full scenic potential of the project feature as it affects the overall

project. This is accomplished by providing for cover reforestation,
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erosion control, landscape planting, management of vegetation, healing

of construction scars, prevention of despoilment, and other related

activities for all project lands. (EM 1110-2-38)

9-6. Low Level Discharge Facilities. Generally, lakes impounded by

Civil Works projects provide low level discharge facilities. Low

level discharge facilities, capable of essentially emptying the lake,

provide flexibility in future project operation for unanticipated

needs such as major repair of the structure, environmental controls or

changes in reservoir regulation. (ER 1110-2-50)

9-7. Engineering and Design Performance Analysis. The analysis,

based on Command Management Review (CMR) data, includes performance in

meeting scheduled physical milestones, performance in meeting

scheduled funds expenditure, accurate cost estimating, and cost

control. Quarterly reports are required from districts and divisions

monitoring engineering and design performance.

9-8. Value Engineering (VE). VE is defined as the systematic

application of recognized techniques which identify the function(s) of

a product or service; establish a monetary value for that function;

and provide the necessary function reliably at the lowest overall

cost. VE is concerned with the elimination or modification of

anything that contributes to the cost of an item or task but is not

necessary for needed performance, quality, maintainability,

reliability, aesthetic or interchangeability, or other intended

function or objective of a product. VE is performed on the earliest

document that satisfies the functional requirements of the project

that includes a comprehensive micro-computer aided cost estimating

system (M-CACES) cost estimate.

 

 a. Use. VE is a permanent and integral part of Corps design

and is applied actively to all Civil Works projects costing in excess

of $2,000,000. VE studies adhere to specifically prescribed methods

of procedure and supplements the analysis of alternatives that is part

of normal management or design procedures. 

 b. Non-Applicability. In Civil Works planning, VE is not

substituted for economic value or feasibility studies. VE is not

applied to aesthetic or environmental features of a project, except

where it can be shown that the resulting design, after VE, is as

pleasing from an environmental or aesthetic viewpoint as the original

design. (OCE Supplement No. 1 to AR 5-4)

9-9. Use of Architect-Engineers (A-Es). Engineering for the civil

works program usually requires: continuity of project investigations

and planning over a period of several years; integration of project

planning with related projects in basin-wide developments; engineering

and design skills distinctive to the field of water resource

development; and special coordination responsibilities with the

public. Because of these requirements, the engineering required for

survey investigations and basic design memoranda involving formulation

of plans of improvements for civil works projects can be performed

by Corps staff or by supporting A-Es. When existing workload or

resources (including manpower restraints or lack of specialized

technical skills) in any district prevents accomplishment of these

tasks in a timely and efficient manner, all or part of the

investigations or design may be reassigned to another Corps office or

to private A-E or consulting firms. Such reassignment is encouraged

pursuant to effective utilization of funds, particularly for those

field installations having difficulty in meeting scheduled obligation
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9-5

and expenditure of funds.

9-10. Use of Consultants. Services of individual experts and

specialists outside the Corps of Engineers may be utilized for advice

and consultation at appropriate stages of Civil Works project

investigation, design, construction and operation activities. 

Consultants are often employed when problems are encountered that

involve specialized fields in which Corps personnel are not regularly

employed, or special problems of such magnitude or importance are

encountered that it is advisable to obtain the views and advice of

eminent experts to supplement conclusions of the Corps staff.

 a. Other Federal Agencies. Services of other Federal agencies

will be utilized as appropriate in their special fields to complement

the investigations and planning of Civil Works by the Corps. Such

agencies include the Environmental Protection Agency (EPA), National

Park Service (NPS) and Fish and Wildlife Service (F&WS), among others.

 b. Owners of Existing Facilities. Services of the owners of

existing facilities to be relocated for Civil Works projects may be

engaged for planning and design of relocations of their facilities. 

Procurement of such services from states, local governmental units,

railroad companies, utility companies, etc., may be accomplished by

use of a separate contract for engineering services. Alternately,

these services may be made a part of the relocations contract.
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CHAPTER 10

CONSTRUCTION

10-1. Requirements of Project Cooperation.

 a. General. Prior to the initiation of construction, the nonFederal sponsor of a water resources project and the Government must

enter into a binding agreement in the form of a Project Cooperation

Agreement (PCA) as required by Section 221 of the Flood Control Act of

1970 (Public Law 91-611), as amended, and by Section 101(e) {Harbors}

and Section 103(j) {Flood Control and Other Projects} of the Water

Resources Development Act (WRDA) of 1986 (Public Law 99-662), as

amended. The PCA must describe, among other things, all of the

requirements and responsibilities relating to construction of the

project including items of local cooperation required from the nonFederal sponsor. Local cooperation requirements typically include

that the non-Federal sponsor pay a percentage share of the costs of

construction. The required percentage varies depending on the project

purpose (e.g., harbor navigation projects, flood control) and is

generally prescribed by law (see, for example, Sections 101, 103 and

1135 of WRDA 1986, as amended). In addition, a non-Federal sponsor

must also provide all lands, easements, rights-of-way, and suitable

borrow and dredged or excavated material disposal areas required for

the project (except in the case of navigation projects where dredged

material disposal areas are part of the general navigation features

(GNF) under Section 201 of WRDA 1996) as well as perform or ensure the

performance of all necessary relocations (collectively referred to as

LERRD requirements; see Section 101(a) and (e), Section 103(a) and (j)

of P.L. 99-662). Generally, the value of the required LERRD provided

by the non-Federal sponsor will be credited against the non-Federal

sponsor’s percentage share of the costs of construction. The portion

of the non-Federal sponsor’s required share of costs that remains

after LERRD credit is afforded must be paid to the Government in cash. 

If construction of the project will be completed within one fiscal

year, the cash payment must be made in a lump sum prior to

solicitation of the first construction contract. If construction of

the project will not be completed within one fiscal year, the nonFederal sponsor must make cash payments each fiscal year in proportion

to the Government's estimated financial obligations for construction

in each fiscal year. (ER 1165-2-131; Chapter 12, ER 405-1-12).

 b. PCA Approval. The PCA for a project is initially

negotiated between representatives of the district and the non-Federal

sponsor following the terms of a model PCA if one has been approved

for the project purpose by ASA(CW). For structural flood control

projects, District commanders have authority to execute PCAs for

projects with a Federal cost of less than $50 million for PCAs which

do not deviate from the flood control model. Division commanders may

execute PCAs with Federal cost greater than $50 million if the model

is used. Delegated authority for PCA execution with use of an

approved model also applies to the continuing authorities and the

Section 1135 and Section 204 programs. PCAs for other purposes

without approved models must be approved by the ASA(CW). 

 c. Projects Specifically Authorized by Congress. n addition

to the general requirement imposed by law, there may be further

required items of local cooperation provided in the authorizing

legislation for the projects or in any report referenced therein. 

Therefore, such legislation and reports must be carefully reviewed to 
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determine all applicable items of local cooperation for the project.

 d. Projects Under Continuing Authorities. Similar to

specifically authorized projects, the continuing authority project

decision document or report may require additional items of local

cooperation. Therefore, such legislation and document or report must

be carefully examined to determine all applicable items of local

cooperation for the continuing authority project. 

 e. Other Specific Requirements.

 (1) Facilities for recreation require a 50 percent non-Federal

contribution and a PCA which includes the recreation elements. 

Construction of the rest of the project may commence without formal

local agreement for recreation, provided the benefit-cost ratio is

recomputed and economic justification for the balance of the project

is achieved with inclusion of minimum basic facilities provided at

Federal expense.

 (2) Section 77 of the Water Resources Development Act of 1974

(Public Law 93-251) amended the requirements for local participation

in measures for the enhancement of fish and wildlife to provide for 75

percent Federal and 25 percent non-Federal sharing of separable first

costs at projects not substantially complete on the date of enactment.

However, Section 906(e)of WRDA 1986, as amended by Section 107(b) of

WRDA 1992, sets forth various conditions and associated cost sharing

when the Secretary of the Army recommends fish and wildlife

enhancement in reports to the Congress. See paragraph 6-14.a - c.

 (3) Assurances required for future water supply should be

reasonable but in accordance with Section 4 of Public Law 92-222 need

not be a binding contract in strict conformance with the requirements

of Section 221 of the River and Harbor Act of 1970 (Public Law

91-611). However, see paragraph 18-2.a.

 f. Use of Other Federal Funds. Project sponsors sometimes

wish to meet their cost sharing responsibilities in connection with a

Corps project not with local funds, but with funds they have received

from the Federal Government. The use of Federal funds by non-Federal

sponsors to satisfy any part of the non-Federal cost share is

prohibited, in principle, because such use of Federal funds is not

generally authorized. District commanders should carefully examine

the sources of local project funding. The Corps can accept the use of

Federal funds by the non-Federal sponsor only if the statute under

which the funds were provided to the sponsor allows the use of the

funds for cost sharing. This policy applies to any intended use of

Federal funds by the non-Federal sponsor to either acquire lands,

easements, or rights-of-way; or perform construction in advance of a

Federal project; or perform or assure performance of relocations; or

to satisfy cash contributions to construct a project. This policy

also applies to Section 215 (Public Law 90-483, as amended) projects,

and project work performed inder provisions of Section 104 and 204(e)

of Public law 99-662. The burden is on the sponsor to demonstrate

that acceptable authorization exists. The sponsor can meet this

burden by providing the Corps with a letter from the Federal agency

that administers the statute in question, approving the use of the

funds to satisfy the Corps' non-Federal cost sharing requirements. 

District commanders should also investigate sources of Federal funding

that may be connected to providing a local cooperation requirement

other than a cash contribution. Sponsors may, for example, request

credit for resources (e.g., LERRD) purchased with Federal funds. The

same general cost sharing prohibition applies: a sponsor cannot
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receive cost sharing credit for such resources unless the Federal

granting agency verifies in writing that such credit is expressly

authorized by statute. (ER 1165-2-131)

 g. Project Cooperation Agreement (PCA) Process. Once a

project is authorized for construction, the budget/appropriations

process drives the PCA process. Current policy dictates that PCAs

will not be executed until: (1) the project document has been

approved by HQUSACE; (2) the project is budgeted as a new construction

start or construction funds are added by Congress, apportioned by OMB,

and their allocation approved by ASA(CW); (3) documentation of

compliance with the National Environmental Policy Act (NEPA) and other

associated environmental laws and statutes in the PCA checklist has

been furnished; and (4) the draft PCA has been reviewed and approved

by ASA(CW).

 (1) Budgeted New Construction Starts. PCA issues (e.g., items

of local cooperation, cost sharing allocation, credit, sponsor

coordination and understanding of PCA language requirements, etc.) are

to be an integral part of the project document in each stage of report

development. During the Reconnaissance Phase, the Project Manager

will coordinate with the prospective sponsor, communicating the

requirements of study and project cost sharing under WRDA 1986, as

amended. During the Feasibility Phase, the full implications of

local cooperation requirements are discussed with the sponsor within

the context of the current model PCA. The first draft PCA is prepared

by the Project Manager in conjunction with the non-Federal sponsor in

the latter stages of the Feasibility Phase prior to the feasibility

review conference (FRC). Ideally, once the draft PCA has been

reviewed as part of the FRC, the PCA would then require only minor

changes once the project is authorized and budgeted as a construction

new start.

 (2) Congressional Adds. After each MSC has coordinated with

HQUSACE (CECW-B) on its recommended implementation plan for work added

by the Congress, the Project Manager will document what the final

project report will be, what it will cover, and the schedule for

development of the complete detailed decision document and PCA package

through submittal to HQUSACE and ASA(CW). Once agreement is worked

out, the Project Manager will follow the same PCA submission

procedures as in 10-1.f(3) below. 

 (3) Execution. Once a project has been funded by Congress as

a new construction start, the Project Manager shall begin final

negotiations with the local sponsor and submit the draft PCA package

(i.e., transmittal letter with draft PCA, financing plan, and current

approved project document) to HQUSACE (CECW-A). In the district's

transmittal, the Project Manager reaffirms that the draft PCA and

financing plan reflect the project as approved by ASA(CW) in the OMBcleared Chief's Report or subsequent report so approved and cleared. 

Any changes to the last ASA(CW) cleared report must be fully

documented by the Project Manager in the transmittal memorandum. If a

Limited Reevaluation Report (LRR) is required due to a time lag in the

economic analysis, it should precede any PCA submission. HQUSACE

staff will review the PCA package for policy compliance with the basic

detailed decision document and prior ASA(CW) instructions, and legal

sufficiency. For PCA packages found to be in compliance, CECW-A will

prepare the draft DCW transmittal memo to ASA(CW) and forward it to

the ASA(CW) for approval to execute. For PCAs with outstanding

issues, HQUSACE will return the PCA to the MSC for resolution before

the PCA can be approved for execution. Upon resolution, CECW-A will

transmit the PCA to ASA(CW) for approval to execute.
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 (4) Forecast Final Cost Estimate. All Civil Works projects

are managed, planned, and executed under the Life Cycle Project

Management System (LCPM) (ER 5-1-11). Consistent with ER 5-1-11, the

forecast final cost estimate to be entered into PCAs for all

specifically authorized new starts (including separable elements,

resumptions, and unstarted projects previously funded for

construction) will be based on the most current cost estimate prepared

in accordance with the Micro-Computer Aided Cost Estimating System (MCACES) in the Code of Accounts format. The ASA(CW) will not execute

any PCA for a new construction start which does not have an M-CACES

cost estimate presented in the Code of Accounts format. District and

division commanders must ensure that the financing plan and PB-2a

accompanying the PCA package that are submitted to HQUSACE, are based

upon the appropriate cost estimate as described above. District and

division commanders must also ensure that M-CACES cost estimates are

completed for projects proposed for authorization (in feasibility

reports) and projects for which construction capabilities are

expressed in any particular fiscal year. Feasibility reports that

recommend a project must include the project's baseline estimate

(i.e., fully funded: escalated for inflation through construction)

which is the fully-funded M-CACES estimate developed for the

recommended scope and schedule. Final approval of the project

baseline estimate lies at the division and will become fixed in value

at the time the division commander issues the public notice.

 

 (5) Disclosure of Lobbying Activities. Section 319 of the

Department of the Interior and Related Agencies Appropriations Act for

Fiscal Year 1990 amends Title 31 of the United States Code by adding

Section 1352 entitled, "Limitation on use of appropriated funds to

influence certain Federal contracting and financial transactions". 

Section 1352 affects, among other things, Federal contracts, grants,

and cooperative agreements, that are entered into after December 23,

1989. All PCAs executed subsequent to December 23, 1989, for all

specifically authorized and Continuing Authorities projects, together

with all feasibility studies, Section 204 and Section 215 Agreements,

and water supply and recreation contracts, will require an

accompanying signed Certification Regarding Lobbying, and if

applicable, a completed Disclosure Form. These forms must be

thoroughly discussed with the non-Federal sponsors prior to submission

of the final PCA to HQUSACE, or in the case of Continuing Authorities,

prior to final approval of the PCA. Signed certificates and, if

necessary, disclosure forms will be attached to the PCA prior to

execution by the appropriate Department of the Army official and must

be kept on file by the executing office for later submission to

HQUSACE, if requested.

 h. Credit for Non-Federal Sponsor Indirect Costs. The policy

for crediting the costs associated with the non-Federal sponsor's

efforts towards implementation of a project is generally established

in OMB Circular A-87 and ER 1165-2-131.

 (1) Specifically, credit will be allowed for all reasonable,

allocable and allowable costs incurred or accrued by the non-Federal

sponsor in connection with its responsibilities associated with the

project. This includes the actual cost of efforts to acquire lands,

easements. rights-of-way and provision of relocations and disposal

areas (i.e., LERRD) required for the project, either 5 years prior to

or any time after execution of the PCA. These creditable costs

include the necessary engineering and design, actual project

management costs as well as the actual costs of establishing and

maintaining management systems necessary to conduct non-Federal LERRD
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responsibilities. Where non-Federal interests actually undertake

construction of all or part of the authorized project under a specific

statutory authority allowing construction of features of authorized

projects, or construction under the provisions of Section 215 of the

Flood Control Act of 1968, as amended, and Sections 104 and 204 of

WRDA 1986, Section 206 of WRDA 1992 and Section 211 of WRDA 1996, or

for hazardous and toxic waste investigations when deemed warranted by

the government and the sponsor, the sponsor's reasonable, allocable

and allowable costs associated with engineering, design, construction,

supervision, administration, inspection and investigation as well as

the costs of these functions themselves, would be eligible for credit. 

The approval of such a request would be formalized in a separate

agreement prepared in accordance with the requlations that govern the

implementation of such actions. Only those actual associated costs

stipulated above are eligible for credit and are to be included in

total project costs and costs shared based on project purposes. 

However, the one exception to this rule is that any costs encountered

by the non-Federal sponsor in auditing the Federal records on the

project to assure that their funds were properly used are allowed to

be included in the total project cost and cost shared. 

 (2) Costs incurred and/or accrued by the non-Federal sponsor

which complement Federal project responsibilities for construction of

the project are not creditable. Such costs include but are not

limited to: participating in and attending meetings to formally

develop and negotiate the PCA; efforts related to developing a

financing plan and costs associated with actually obtaining and

managing local funds; review of the engineering and design documents

related to the construction of the project; a construction inspector

specifically appointed or hired by the non-Federal sponsor to oversee

construction; and attending meetings to discuss the progress of

construction.

 (3) While PCAs executed by non-Federal sponsors and the

Federal Government urge close cooperation and joint management of a

project throughout its design and construction, and indeed the sponsor

has the prerogative of conducting such activities in any way they see

fit, it is the reponsibility of the Federal Government's Contracting

Officer to assure that design and construction of a project takes

place in compliance with the plans and specifications and in a timely

and efficient manner. This approach is significantly different from

the approach taken in crediting the non-Federal sponsor for their

efforts in connection with conducting the feasibility study (i.e., all

negotiated costs for efforts performed by the non-Federal sponsor up

to the issuance of the division commander’s notice, including but not

limited to: labor (direct and indirect), overhead, supervision and

administration, travel, costs associated with attendance at meetings

(both locally and in Washington, if necessary), are included in total

project cost and cost shared). This distinction must be made clear to

non-Federal sponsors in the earliest stages of PCA negotiation (during

feasibility), in order to avoid confusion and erroneous expectations

as a project progresses toward construction.

 i. Credits for Work-in-Kind Performed by Non-Federal Sponsors. Construction may not be performed by non-Federal sponsors on Civil

Works projects except pursuant to Section 215 of the 1968 Flood

Control Act, as amended; Section 104 of WRDA 1986, as amended (for

flood control); Section 211 of WRDA 1996 (for flood control); Section

204 of WRDA 1986, as amended (for harbor projects); Section 4 of the

Flood Control Act of 1944, as amended (for recreation facilities);

Public Law 84-826, as amended (for beach erosion control projects);

Section 206 of WRDA 1992 (for shoreline protection); or other limited
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or project specific authority (e.g., Section 211(e)(2)(B) of WRDA

1996). This prohibition applies not only to construction items, but

also to preconstruction engineering and design; engineering and design

during construction; and construction management. The approval

authority for performance of work-in-kind by non-Federal sponsors is

the ASA(CW). Any credit afforded a non-Federal sponsor for approved

work-in-kind is limited to the lesser of the following: (1) actual

costs that are auditable, allowable, and allocable to the project; or

(2) the Government's estimate of the cost of the work; or (3) in the

case of certain 104 credits, the estimated reduction in the cost of

the remaining project construction. Audit requirements of the

following regulations must be followed, as appropriate: ER 1165-2-29;

ER 1165-2-120; ER 1165-2-18; ER 1165-2-131; and, ER 1165-2-124. In

affording credit to non-Federal sponsors for work-in-kind, price

levels shall not be adjusted. This requirement applies whether the

work-in-kind is performed prior to, or after, the award of the initial

Government construction contract. Not only shall actual costs not be

adjusted for price levels, but also any estimated cost or cost

reduction that is the basis for a credit shall be computed using the

same price levels as those in effect at the time the non-Federal work

is performed. Furthermore, any credit approved by the ASA(CW) for

Section 104 work performed prior to 17 November 1986 shall not

subsequently be adjusted for price levels.

 j. Provision of Non-Federal Cash for Construction. NonFederal sponsor's funds for construction of Civil Works projects and

separable elements should be made available and obligated in a timely

fashion such that Federal funds are not inappropriately substituted

for non-Federal funds. Methods for computing and collecting the nonFederal sponsors' annual cash contributions are provided in ER 1165-2-

131 (Appendix B) and Project Management Guidance Letter (PMGL) No. 11

(revised 18 Dec 1992). Appendix B (of ER 1165-2-131) procedures are

to be applied to all Civil Works projects and separable elements

except where the Government is already bound to do otherwise by

contractual agreements with non-Federal sponsors. For Appendix B

projects and separable elements, proportional Federal/non-Federal cash

funding of fiscal obligations for construction is required. This

means that the non-Federal sponsor's funds must be made available and

obligated so that, at any point in time, the ratio of cumulative

obligations of non-Federal funds to cumulative obligations of all

funds is the same as the currently estimated ratio of ultimate

obligations of non-Federal funds to ultimate obligations of all funds. 

The non-Federal sponsor's cash share in a given fiscal year is derived

from an estimate for the non-Federal sponsor's overall cash share, and

is not affected dollar-for-dollar by changes in the estimated amount

of credits for LERRDs in that fiscal year. However, credits afforded

for work by a non-Federal public entity at a Federal water resources

project authorized under Section 104 (General Credit for Flood

Control) of WRDA 1986 (for the flood control project purpose), under

Section 215 (Reimbursement for non-Federal Expenditures) of the Flood

Control Act of 1968, and under any authorized work-in-kind are applied

dollar for dollar against cash requirements. In the event that a nonFederal sponsor fails to make available the funds required, the 

division commander should immediately notify CECW-B of such failure. 

 

10-2. Real Estate Requirements and Acquisition for Multiple Purpose

Reservoir Projects.

 a. Requirements. Real estate requirements are governed by the

Joint Policies of the Departments of the Interior and Army, which is

published in 27 F.R. 1734, 22 February 1962. This policy provides

that fee title is acquired to lands needed for the dam site,
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construction areas, and permanent structures. Further, for the

reservoir itself, land is acquired in fee up to the maximum flowage

line (the top of controlled storage, including flood control, plus a

reasonable freeboard to safeguard against the adverse effects of

saturation, wave action and bank erosion). Where this is insufficient

to provide a minimum of 300 feet horizontally from the conservation

pool (all planned storage except that which is exclusively for flood

control) fee acquisition is increased to that extent. Fee title is

also required for separable areas used for recreation (At multiple

purpose reservoir projects Federal participation in recreation

facilities may extend to separable lands); access to the lake; and

land required for fish and wildlife mitigation and enhancement. 

Easement interests may be acquired in lieu of fee title for areas in

the upper reaches of the project above the conservation pool if

financially advantageous and not required for fish and wildlife or

recreation purposes. Also, easements are generally acceptable for

rights-of-way for the relocation of public highways, public utilities,

and railroads. Lands downstream from the dam may be acquired in fee

or easement for operational purposes. A real estate interest will be

obtained in those areas downstream of a spillway where spillway

discharge could create or significantly increase a hazardous

condition. (ER 1110-2-1451; Chapter 2, ER 405-1-12)

 b. Acquisition. Section 103(i) of WRDA 1986 (Public Law

99-662) assigns responsibility for lands, easements, rights-of-way,

relocations dredged material disposal areas (LERRD) to non-Federal

interests (subject to cost sharing limits). Interpretation of the

Act, however, allows for several possibilities as to which partner

(Corps or non-Federal sponsor) actually carries out acquisition of the

required real estate interests or holds title to those interests. The

possibilities range from non-Federal interests performing all aspects

of required acquisitions to acceptance of their request that the

Federal Government perform all real estate acquisition for the

project. Provided the Corps and the sponsor agree, the Corps may

acquire the required lands, easements, rights-of-way and dredged

material disposal areas on behalf of the sponsor, subject to advance

receipt of payment from the sponsor. The authority for Corps

acquisition stems from the project authority itself and the Civil

Functions Appropriations Act of 1938, approved 19 July 1937 (50 Stat.

515, 518; 33 U.S.C. 701h) which authorizes the Secretary of the Army

to receive states and political subdivisions funds to be expended in

connection with funds appropriated for authorized flood control

projects, whenever the expenditures may be considered as advantageous

to the public interest. Acquisition generally starts at the damsite

and moves progressively upstream. Required real estate interests for

authorized fish and wildlife mitigation shall be acquired before any

project construction commences or concurrently with real estate

interests for other project functions, whichever ASA(CW) deems

appropriate. Project lands may be acquired from landowners by

purchase, condemnation or donation. In most cases the sponsor (or the

Corps, if the Corps has accepted the effort) should be able to

negotiate an agreement satisfactory to the landowners. Prior to

closing, title evidence is reviewed, title clearance is completed and

an inspection is made of the premises. At closing, a deed to the

sponsor (or the United States) is accepted and payment of the purchase

price is made to the landowner. If agreement with the owner cannot be

reached on a mutually acceptable price or if a title defect cannot be

readily resolved, condemnation proceedings will be filed by the

sponsor in the appropriate state court (or, if the Corps is acquiring

the land, the United States Department of Justice institutes

condemnation proceedings in Federal District Court). The landowner

will be paid or reimbursed for expenses incurred by the landowner in
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conveying his or her property to the sponsor or the United States,

such as recording fees, mortgage prepayment penalties, and transfer

taxes. Generally, mineral rights will not be acquired unless

development thereof would interfere with project purposes. However,

mineral rights not acquired will be subordinated to the Federal

Government's right to regulate their development in a manner that will

not interfere with project purposes. Following project authorization

and appropriation of construction funds, public meetings are conducted

in the vicinity of the project to discuss the project, the acquisition

program and acquisition schedule, and to afford landowners an

opportunity to comment. (Chapters 2 and 5, ER 405-1-12) 

 c. The Uniform Relocation Assistance and Real Property

Acquisition Policies Act of 1970 (Public Law 91-646), as amended. This legislation provides for uniform and equitable treatment of all

persons displaced from their homes, farms, and businesses as a result

of land acquisition for Federal and Federally-assisted projects. The

Act authorizes reimbursement for actual moving expenses and losses of

personal property resulting from moving for a person displaced from

his or her residence by such a project. In lieu of actual expenses,

such person may elect a fixed payment for a dislocation allowance

according to a schedule established by the Department of

Transportation. Actual reestablishment expenses not to exceed $10,000

may be recovered by a displaced small business, farm, or non-profit

organization. Likewise, business or farm operations may be reimbursed

for actual expenses of moving and losses to personal property, or they

may be eligible to choose a fixed payment in lieu of a payment for

actual moving or related expenses. Such fixed payment shall equal the

average annual net earnings of the operation, as computed in

accordance with the implementing regulations, which shall be not less

than $1,000 nor more than $20,000. A replacement housing payment is

also provided to enable the displaced person to be relocated in a

comparable replacement dwelling. This payment (up to $5,250 for

tenants and $22,500 for homeowners) is in addition to the purchase

price paid for the property acquired for the Federal project. These

costs are not included in the project benefit-cost ratio, but they are

allocated to reimbursable purposes. (ER 1165-2-117; Chapter 6, ER

405-1-12)

 d. Special Federal Authorities and Policies Pertinent to LERRD

Responsibilities.

 

 (1) Relocation of Public Highways, Public Utilities, Railroads

and Pipelines. Lands necessary for a project are acquired subject to

outstanding easements for public highways, public utilities, railroads

and pipelines. However, when there will be a taking of these

easements, the owner must be compensated. Federal courts have held

that when the Federal Government acquires public highways and public

utilities, the measure of compensation may be the cost of providing

substitute facilities where necessary. Conversely, where there is no

further necessity for such a facility, the Federal Government is only

required to pay nominal consideration for the right-of-way. When

privately-owned roads, pipelines and railroads, are required it may be

in the best interest of the Federal Government to provide for

relocating them since relocation may be the least costly alternative. 

A relocated facility should serve the owner in the same manner and

reasonably as well as does the existing facility. However, substitute

roads can be constructed to the standards which the state or

municipality would use in constructing a new road taking into

consideration geography and projected traffic not including project

induced traffic. In project planning, Corps determination of needed

relocations will be based on the foregoing, and related sponsor costs
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for their accomplishment will count toward the value of project LERRD. 

At request of the state or political subdivision, a substitute road

may also be constructed to even higher standards than as provided

above if the state or political subdivision pays the added cost prior

to initiation of construction. (ER 1165-2-117; Appendix Q, EFARS)

 (2) Relocation of Cemeteries. The relocation and/or

protection of cemeteries is premised on acquisition of a real estate

interest and extinguishment of the legal right of the next-of-kin to

visit and preserve the burial grounds of their ancestors and

relatives. It is the policy of the Corps of Engineers to respect the

wishes of the next-of-kin as to the removal and reinterment of bodies. 

Ordinarily, just compensation for the acquisition of an existing

cemetery site will consist of furnishing a new site comparable to the

old site, plus disinterment and reinterment of the bodies, and

transferring monuments and other facilities from the old to the new

site. All costs would be considered part of the LERRD responsibility. 

Should the cemetery be protected in place, by construction of a levee

or similar structure, and access preserved, costs would be considered

part of project construction, and cost shared accordingly. (Appendix

Q, EFARS)

 (3) Reestablishment of Towns. In certain cases, Congress has

authorized relocation of specific communities. However, there is no

general authority vested in the Secretary of the Army (by way of

Federal legislation or Federal court decisions) to pay the cost of

physically relocating a town. Recognizing that project requirements

dictate the acquisition of private property within the project, the

Federal Government can participate in financing the cost of comparable

streets and utilities in a new town in the event the governing body of

the town and its citizens decide that a new town will, in fact, be

established. If no new town is to be established, the Federal

Government has no legal authority to pay other than a nominal

consideration for the streets and utility systems in the old town

since no substitute facilities would be necessary. Traditionally,

community relocation issues were treated following project authorization. However, the new policy is to address these issues during

preauthorization planning. This will assure the community that the

Corps is aware of their concerns and will outline the respective roles

of the Corps, the project sponsor, and community in the authorizing

documents. (Appendix Q, EFARS)

10-3. Real Estate Requirements for Single-Purpose Flood Control

Reservoir and Non-Reservoir Projects.

 a. Requirements. No construction contract is awarded until a

valid right of possession has been obtained to the entire project

area, or for a usable segment thereof. The minimum interests in real

estate which the non-Federal sponsor must obtain are given below. In

addition to these estates in lands, appropriate real estate interest

must be acquired by the sponsor in any area where project operations

will effect a taking within the meaning of the Fifth Amendment of the

U.S. Constitution. (Chapters 2 & 12, ER 405-1-12)

 (1) Flood Control and Shore Protection Projects. Fee title,

or permanent easements, for levees, walls, other permanent structures,

channel rectification works, and adequate access thereto. Permanent

easements for lands in reservoir areas of flood control only projects

which do not provide conservation pools, spoil disposal and borrow

areas required for future maintenance work, and adequate access

thereto. Permit, or temporary easements, for spoil, work and borrow

areas required during construction, and adequate access thereto.
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 (2) River and Habor Projects. Fee title for lock site and for

all other permanent structures. Permanent easements for right-of-way

for the waterway improvements. Permanent easements in lands required

for the erection and maintenance of aids to navigation. (For

improvements which are part of the Inland Waterway System, real estate

requirements are similar, but the responsibility therefore is entirely

Federal.)

 (3) Separable Recreation Lands. Federal participation in

recreation facilities at non-reservoir projects and dry dams must be

within the project lands (required for purposes other than recreation)

for which fee title is available. Fee title is also required for any

separable recreation lands needed for access, parking health and

safety.

 b. Relocations Assistance. The provisions of the Uniform

Relocation Assistance and Real Property Acquisitions Policies Act of

1970, as amended, described in paragraph 10-2c, are applicable to

acquisitions for all types of Federal projects. Whether acquisitions

are actually accomplished by the Corps (see below) or the project

sponsor, the provisions of the Act must be followed and the related

costs counted as part of project LERRD costs.

 

 c. Condemnation on Behalf of Local Interests. Under the

provisions of Acts of Congress approved 29 June 1906 (33 U.S.C. 592),

8 August 1917 (33 U.S.C. 593), 18 July 1918 (33 U.S.C. 594) and 18

August 1941 (33 U.S.C. 701c-2), the Secretary of the Army may cause

proceedings to be instituted, in the name of the United States, for

acquisition by condemnation of real estate interests which non-Federal

entities undertake to furnish free of cost to the United States. The

Chief of Engineers may request such action on behalf of the nonFederal sponsor if the non-Federal sponsor lacks condemnation

authority or cannot meet the construction schedule, or if the measure

of just compensation is different under local law and Federal law. 

(Chapter 12, ER 405-1-12)

 d. Special Federal Authorities and Policies Pertinent to LERRD

Responsibilities.

 (1) Evacuation in Lieu of Levees. Section 3 of the 1938 Flood

Control Act, dated 28 June 1938 (Public Law 761, 75th Congress),

authorizes the Chief of Engineers to substitute evacuation in lieu of

authorized levees or floodwalls for a portion or all of the areas

proposed to be protected. A sum not exceeding the amount saved in

construction costs may be expended for evacuation of the locality

eliminated from protection, including rehabilitation of the persons

evacuated. Where this authority might be used, the evacuation effort

substituting for levee construction would be treated as a

nonstructural element of the project, and cost shared accordingly. 

(See paragraph 13-10.b.)

 (2) Other. The special authorities and policies cited in

paragraph 10-2.d for multiple purpose reservoirs are also applicable

to other Corps projects to such extent as there may be analogous

situations and possibilities.

10-4. Relocations. The term "relocation", with the exceptions noted

below, means providing a functionally equivalent facility to the owner

of an exisiting utility, cemetery, highway, railroad, or other public

facility when such action is authorized in accordance with applicable

legal principles of just compensation. A "relocation" is also

providing a functionally equivalent facility when such action is
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specifically provided for, and is identified as a relocation, in the

authorizing legislation for a navigation project or any report

referenced in the authorizing legislation. Providing a functionally

equivalent facility may take the form of alteration, lowering,

raising, or replacement and attendant removal of the affected facility

or part thereof. The non-Federal sponsor is required to perform or

assure the performance of the relocation. For a relocation other than

a utility relocation, the value of the relocation is creditable

against the non-Federal sponsor's required additional 10 percent

payment under Section 101(a)(2) of WRDA 1986, as amended. For a

utility relocation, the non-Federal sponsor's actual costs in

performing or assuring the performance of the utility relocation are

creditable against the non-Federal sponsor's required additional 10

percent repayment under Section 101(a)(2) of WRDA 1986, as amended. 

In practice, under the terms of the PCA, the cost of the relocation

will be the basis for computing non-Federal sponsor credit for all

relocations.

 a. Flood Control Projects. (Generally applicable also to

projects for other purposes, except navigation.)

 (1) Highway Bridges. Alteration of highway bridges

necessitated by a flood control project (channel realignments,

widening, etc.) is considered part of the sponsor's LERRD

responsibility. However, alterations to provide for the continued

structural integrity of highway bridge foundations, piers, or

abutments that are to remain in place should be included as part of

basic project construction (e.g., when channel deepening would extend

below existing bridge piers and consequential reinforcement, underpinning or other reconstruction of the piers are the only alterations

required), and cost shared accordingly.

 (2) Railroad Bridges.

 

 (a) Alterations/Relocations. Alterations or modifications to

existing railroad bridges necessitated by changes in the configuration

of the channel at the existing crossing will be considered part of the

project construction cost and cost shared accordingly. As needed,

this may include alteration of foundations for a bridge that will

remain in place, relocation of the existing superstructure to new

foundations, complete reconstruction of the bridge, temporary detours,

and approaches thereto, including trackage that must be

altered/modified to suit. Alterations or relocations of other

trackage or railroad facilities required for the project, but not

related to a railroad bridge change, are to be performed or arranged

for by the project sponsor as part of the sponsor's LERRD

responsibility.

 (b) New Railroad Bridges. The cost of new railroad bridges

required because of project construction in fast land or new channel

alignments (i.e., where there is no counterpart existing crossing)

will be designated in the authorizing document as part of project

construction costs, and cost shared accordingly. However, if not

authorized by Congress, a new bridge and its approaches on fast land

are considered a part of the relocation of the track that crossed the

fast land, and such costs are categorized as a LERRD item.

 (3) Utilities. Utility relocations required for a project are

to be performed at 100 percent non-Federal expense, as part of the

sponsor's LERRD responsibility. However, construction of the segments

of relocated utilities that pass under or through the line of

protection to be provided by the project may be incorporated in Corps
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plans for construction of the structures in the line of protection,

subject to sponsor contributions equal to the related contract costs. 

 (4) Removals. The cost of removal of facilities (i.e., those

not being relocated from lands needed for the project development) are

considered to be part of project construction costs, and cost shared

accordingly. However, the cost of acquiring such facilities, so that

they may be removed, is part of the sponsor's LERRD responsibility.

 b. River and Harbor Projects.

 (1) Highway and Railroad Bridges. Bridge alteration costs are

project construction costs to be assigned partially to the bridge

owner and partially to the navigation project, using the procedures of

the Truman-Hobbs Act (as described in ER 1165-2-25). The portion of

bridge alteration costs so assigned to the navigation project are

considered to be part of the general navigation features (GNF), and

are cost shared accordingly. In the case of new bridges, required

because of construction of new navigation channels that would

otherwise intercept existing highway or railroad routes, all costs are

considered to be part of GNF.

 (2) Relocations and the Navigation Servitude. A relocation

must occur when a facility or part of a facility must be altered,

lowered, raised, or removed to allow for the construction of a

navigation project and the owner of the facility is entitled to a

substitute facility due to just compensation principles. Just

compensation principles generally require a substitute facility when

the facility's owner has a real property interest in the land on which

the facility is located, there is a public necessity for the service

provided by the facility and market value has been too difficult to

find, or the application of market value would result in injustice to

the owner or public. This definition focuses on the issue of just

compensation as between the facility owner and Federal Government and

takes into account rights the Federal Government has within the

navigation servitude. Therefore, the owner of a facility within the

navigation servitude has no compensable real property interest with

regard to the Federal Government for the portion of the structure

within the navigation servitude and the owner of the facility within

the servitude is not entitled to a substitute facility when compelled

to remove the facility because it is an obstruction to the Federal

navigation project.

 

 (3) Deep-Draft Utility Relocations. "Deep draft utility

relocations" are handled differently and are only applicable to

projects authorized at a depth of greater than 45 feet and applicable

only to utilities located within the navigation servitude. A deep

draft utility relocation is defined as providing a functionally

equivalent facility to the owner of an existing utility serving the

general public when such action is not a "relocation" as defined in

paragraph 10-4. In accordance with Section 101(a)(4) of WRDA 1986, as

amended, one-half of the cost of the deep draft utility relocation

shall be borne by the utility owner and one-half shall be borne by the

non-Federal sponsor. Actual costs of deep draft utility relocations

borne by the non-Federal sponsor up to 50 percent of the total cost of

the utility relocation will be creditable against the non-Federal

sponsor's additional 10 percent share. The Corps might compel deep

draft utility relocations if confronted with reluctant utility owners. 

However, such involuntary deep draft utility relocations would be for

the purpose of facilitating project construction and would not serve

to change the statutory requirement for 50/50 cost sharing between the

non-Federal sponsor and the utility owner. Therefore, in those cases
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where the utility owners are compelled to relocate under permit

conditions, the non-Federal sponsor is responsible for one-half of the

cost of these deep draft utility relocations. Administrative and any

legal costs incurred by the Corps to compel deep draft utility

relocations would be shared 50/50 between the non-Federal sponsor and

the utility owner.

 (4) Removals. The cost of removal of facilities (i.e., those

not being relocated) which are located on fastlands are considered to

be part of GNF costs, to be cost shared accordingly. However, the

cost of acquiring such facilities, so that they may be removed, is

part of the sponsor's LERRD responsibility. Where there is an

obstruction to a navigation project that is within the navigation

servitude, and that obstruction does not fit within the definition of

a relocation as discussed in paragraph 10-4 or a deep draft utility

relocation as presented in paragraph 10-4.b.(3), the obstruction will

be removed at owner cost to accommodate the navigation project. If

facilities exist which are partially located on fastland and partially

subject to the navigation servitude, a reasonable allocation of costs

will be made between owner costs and relocation or GNF costs as

appropriate.

 (5) Removal Responsibility. Where the non-Federal sponsor has

the capability to compel the owner of a facility obstructing a

navigation project to remove the facility solely at owner cost, the

non-Federal sponsor will exercise this capability. The capability of

the non-Federal sponsor to successfully compel the removal of

facilities at owner cost will be jointly assessed by the Corps and the

non-Federal sponsor. Factors in this assessment will include the

legal authorities available to the non-Federal sponsor and their

strength, the applicability of the non-Federal sponsor's authorities

to the Federal navigation project and the record of success in

exercising the non-Federal sponsor's authorities. The non-Federal

sponsor may also elect to directly negotiate with the owner of a

facility obstructing a navigation project for the removal of the

facility in lieu of exercising any non-Federal sponsor or Corps

authorities to compel the facility removal at owner cost. However,

any payments or reimbursements by the non-Federal sponsor to the

facility owner for the removal of the facility would not be creditable

against the non-Federal sponsor's required additional 10 percent

repayment under Section 101(a)(2) of WRDA 1986, as amended. In the

event it is determined that the non-Federal sponsor does not have the

capability to compel the owner of a facility obstructing a navigation

project to remove the facility at owner cost and the non-Federal

sponsor does not elect to directly negotiate with the facility owner

for the removal of the facility, the Corps will exercise its rights

under the navigation servitude and any applicable Corps permit

conditions to require the owner to perform the removal of the facility

at the owner’s expense.

 (6) Accounting for Removal Costs. When a facility is removed

at owner cost, the facility removal cost and any cost to replace the

facility at a new location (for example at a greater depth) will be an

owner cost. The administrative and legal cost to the non-Federal

sponsor or the Corps of requiring the owner to remove the obstruction

will be considered GNF costs and shared accordingly. Corps regulatory

program funds will not be used for accomplishing removals or

permitting owner replacements of removed facilities. Costs to the

owner of a facility for its removal and any owner replacement costs,

including any costs voluntarily paid or reimbursed by the non-Federal

sponsor, will be accounted for as associated costs of the project and

are not shared GNF costs nor non-Federal sponsor costs for lands,
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easements, rights-of-way or relocations. Owner removal and

replacement costs are economic costs of the project that must be

reflected in the calculation of net national economic development

benefits. Where necessary, the Corps may also have the option to

remove the obstruction itself. The costs to the Corps of removing the

obstruction will be considered costs of the GNFs of the project and

shared accordingly. In the event a court determines that the owner of

a facility within the navigation servitude is entitled to payment of

just compensation as a result of a removal action, that compensation

amount will be considered a cost for lands, easements, and rights-ofway, which the non-Federal sponsor will be required to pay in

accordance with Section 101(a)(3) of WRDA 1986, as amended. If the

court also determines the appropriate measure of just compensation is

provision of, or payment based on, a substitute facility, this will be

considered a relocation, which the non-Federal sponsor will be

required to provide in accordance with Section 101(a)(3) of WRDA 1986,

as amended.

10-5. Water Quality Requirements. State water quality certification

or a waiver thereof is required by the Clean Water Act of 1977 prior

to discharge of dredged or fill material into waters of the United

States. (See paragraph 3-5)

10-6. Accomplishment of Construction Work.

 a. Use of Contractors. It is Corps policy to accomplish

Federal civil works improvement by contract with private construction

firms through competitive bidding to the greatest extent possible. 

Contracts are advertised and administered in accordance with the

Federal Acquisition Regulation (FAR) and as further defined in the

Department of Defense Supplement (DFARS), Army Supplement (AFARS) and

Engineer Supplement (EFARS).

 b. Construction Management Support Services. Contracting with

private firms to perform construction management services is

appropriate under certain circumstances, such as, when adequate

numbers of Corps personnel are not available or when specific

technical expertise must be obtained. Surveying and materials testing

services are examples of supportiveness which lend themselves to

contracting out. The management functions of all Civil Works field

offices is to be retained as an internal function and not delegated to

private contractors. See ER 415-2-100 for detailed guidance on

staffing of Civil Works projects.

 c. Use of Government Plant and Hired Labor. Work is

accomplished with Government owned plant and hired labor when it is of

a type in which contractors are not interested; where advertisement of

the work resulted in procurement of unacceptable bids and suitable

government plant existed and was utilized as the basis of the

Government estimate; or when it requires special equipment or

qualifications for doing the work which are not generally available to

the contracting industry. Bank revetment work with special

Government-owned plant is an example of the latter case. Public Law

95-269 provides that the Secretary of the Army, acting through the

Chief of Engineers, carry out projects for river and harbor

improvements by contract or otherwise in the manner most economical

and advantageous to the United States. The Act provides for carrying

out dredging and related work by contract when this work can be

accomplished at reasonable prices and in a timely manner. In this

regard, Public Law 95-269 provides that dredging or related works of

river and harbor improvement shall be done by contract if: (1) the

contract price is less than 125 percent of the cost of doing the work
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by government plant; or (2) in any other circumstance, if the contract

price is less than 125 percent of a fair and reasonable estimated cost

of a well-equipped contractor doing the work. Public Law 95-269

further provides for the reduction of the existing fleet of Federallyowned dredges to a fully operational minimum fleet of technologically

modern, efficient dredges to meet emergency and national defense

requirements. The Act also provides that the Secretary of the Army

shall maintain a sufficient number of Federally-owned dredges to

insure the capability of the Federal Government and private industry

together to carry out projects for improvements of rivers and harbors.

(ER 1110-2-1302, ER 1130-2-520, EFARS)

 d. Contracting with Small and Small Disadvantaged Business. 

Contracting with small business concerns is governed by the provisions

of the FAR. (FAR, 19.0) 

 e. Buy American Act. Part 25 of the FAR and supplements

govern the implementation of the Buy American Act (41 U.S.C. 10a-d)

and its application to civil works construction contracts. New rules

have made Trade Agreement Acts such as the North American Fair Trade

Act (NAFTA) applicable to the Corps of Engineers. These recent

changes are reflected in FAR Part 25.407(d).

 f. Construction Quality Management. Part 46 of the FAR and

supplements require the use of a Quality Management System consisting

of Contractor Quality Control (CQC) and Government Quality Assurance

(QA) for fixed price construction contracts where the contract amount

is expected to exceed the small purchase limitation. CQC is the

contractor's inspection system used to ensure that work performed

under the contract is performed in conformance with contract

requirements. QA is the system through which the government assures

that the CQC system is working and that the contract quality

requirements are fulfilled. (ER 1180-1-6)

10-7. Reservoir Clearing. The general objective in clearing

reservoir areas is to hold such clearings to a minimum compatible with

project purposes in order to effect an over-all reduction in

construction costs. All areas which are potential hazards in

achieving primary project purposes should be cleared in accordance

with established guidelines. Clearing and disposal of cleared

material must comply with all local and state laws applicable in the

area where the project is located.

10-8. Use of Dredged Material. It is Corps policy to secure the

maximum practicable benefits through the use of material dredged from

navigation channels and harbors, provided such use is in the public

interest. Such use of suitable non-contaminated dredged materials can

include creation of wetlands, nourishment of beaches, erosion control

of river banks, and land reclamation. In accordance with Section 150

of Public Law 94-587 up to $400,000 may be expended by the United

States to create a wetland area from dredged material (paragraph

20-5). However, since this authority does not require cost sharing,

it will not be used. Section 145 of Public Law 94-587, as amended,

authorizes the placement of sand obtained from dredging operations

onto adjacent beaches if requested by states, if deemed to be in the

public interest, and if increased disposal costs are provided 100

percent by the state, or are shared (50-50) when certain criteria are

met (paragraph 12-22). Section 204 of WRDA 1992, as amended,

authorizes the Secretary of the Army to carry out projects for the

protection, restoration, and creation of aquatic and ecologically

related habitats, including wetlands. Project implementation is

conditioned on non-Federal interests entering into a cooperative
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agreement to provide 25 percent of the cost associated with project

construction and agreeing to pay 100 percent of operation,

maintenance, repair, replacement, and rehabilitation costs. 

Utilization of dredged material for other uses may also be undertaken

provided extra cost to the United States is not incurred. However,

under Section 207 of WRDA 1996, the Secretary of the Army may select

(and cost share incremental costs in accordance with Section 204(c) of

WRDA 1996), with the consent of the non-Federal interest, a disposal

method that is not the least-cost option if the Secretary determines

that the incremental costs of such disposal method are reasonable in

relation to the environmental benefits. If it is evident during the

initial planning of dredged operations that additional costs would be

incurred, non-Federal interests will be given reasonable opportunity

to finance the additional costs. Prior to enactment of WRDA 1996,

non-Federal interests normally provided without cost to the United

States all suitable areas for initial and subsequent disposal of

dredged material, including all necessary retaining dikes, bulkheads,

and embankments therefor. However, under Section 201 of WRDA 1996,

dredged material disposal areas are part of a navigation project’s

GNFs and are no longer required to be provided by non-Federal

interests. Also see paragraph 12-21 discussion of land enhancement

from placement of dredged material and restriction on Ocean Dumping. 

The right to remove material deposited in a disposal area was not

included in many older Corps dredged material disposal easements. 

Where the Government does not own fee title to a disposal area or has

not included the right to remove in its existing easement, the removal

of previously deposited material may require the acquisition of an

additional interest, or credit for such interest in the case of a

sponsor-owned facility. (ER 1130-2-520)

10-9. Housing of Project Personnel. It is Corps policy that

government housing for permanent duty stations at Civil Works projects

not be provided. Such government housing is not constructed or

acquired unless justified and approved by HQUSACE on an exception

basis. Employees are not required to occupy government quarters as a

condition of employment unless specifically determined necessary and

approval obtained.

10-10. Special Statutory Authority for Relocations and Alterations. 

Section 111 of the River and Harbor Act of 1958, as amended, provides

authority for replacing, relocating, or reconstructing any structure

or facility owned by an agency of government and utilized in the

performance of a government function when threatened or adversely

affected by construction of a project. This authority does not modify

any existing requirement of local cooperation.

10-11. Disposal of Land at non-Local Cooperation Projects Stopped

During Construction. Prior to recommending deauthorization of

projects stopped during construction it is the policy of the Corps to

conduct a study of the status of land acquisition of the project and

recommend an appropriate method of land disposal. Recommendations may

include, among other things, that: tracts be acquired because of

hardships, desires of others, or other compelling reasons; tracts

still in open condemnation be revested to former owners; authority be

obtained for revestment of tracts to former owners; relocations of

highways, railroads, and utilities be concluded; or lands be retained

in public ownership. Disposal other than in accordance with the

Federal Property and Administrative Services Act of 1949 will be

dependent on special legislation providing therefor. (See paragraph

11-10.)
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10-12. Transfer of Completed Local Cooperation Projects to nonFederal Interests. Under the terms of the PCA, when the Government

determines that an entire project, or functional portion thereof, is

complete, the Government provides written notice to the non-Federal

sponsor of such determination and furnishes an Operations,

Maintenance, Repair, Replacement, and Rehabilitation (OMRR&R) Manual

to the non-Federal sponsor. The non-Federal sponsor is then

responsible for the OMRR&R of the project, or functional portion. 

After completion and notice to the non-Federal sponsor, authority is

considered to expire for expenditure of Federal funds for construction

of additional improvements on the project or for maintenance thereof. 

10-13. Project Cost Increase Limitations. Section 902 of WRDA 1986,

as amended by Section 3.b of Public Law 100-676, provides that,

excluding the impacts of general price increases and any project

additions otherwise authorized, the total project costs for any

project authorized in WRDA 1986 and all subsequently authorized

projects may not exceed the authorization limit by more than 20

percent. Procedures for calculating this limit are described in

Appendix P of ER 1105-2-100. A construction contract can not be

awarded if the estimated total project costs after bid opening exceed

the Section 902 limit (unless and until the limit is modified by law). 

Also, no reimbursement can be made to a non-Federal sponsor if

subsequent to contract award, total project costs exceed the Section

902 limit (unless the limit is modified).

10-14. Appraisal of Lands Containing Hazardous,Toxic, and Radioactive

Wastes (HTRW) on Local Cooperation Projects. Regardless of whether or

not the land required for a local cooperation project is in the nonFederal sponsor's possession, or whether or not HTRWs exist on or

beneath the property, ER 1165-2-131 (paragraph 12.c) is the basic

guidance for appraising land values for credit. The credit amount

shall be based on an approved appraisal using the principles outlined

in the Uniform Appraisal Standards for Federal Land Acquisitions under

the assumption that the lands are clean. Therefore, regardless of

whether the non-Federal sponsor paid a nominal price or an exhorbitant

price and whether the lands are actually clean or contain HTRW, the

credit appraisal should assume clean lands. The cost of HTRW cleanup

is not a factor in the appraisal (or credit) nor are any cleanup costs

to be included in the fair market value of the land or in the estimate

of total project cost. 
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CHAPTER 11

OPERATIONS, MAINTENANCE, AND PROJECT MANAGEMENT

11-1. Resource Management of Project Lands and Facilities.

 a. Management Objectives. The developed and natural resources

at Civil Works projects are the public property of both present and

future generations. Corps resource management activity is directed

toward the continued enjoyment and maximum sustained use by the public

of lands, waters, forests, other vegetative cover, and associated

recreational resources, consistent with their aesthetic and biological

values, and to allow such other new and innovative uses of the project

that are not detrimental thereto. Projects administered by the Corps

have resource use objectives, based on the expressed preferences of

the residents of the region served, the needs of the ecosystem in

which the project occurs, and on the capabilities of the natural and

man-made resources of the project. Maintenance and administration of

recreation areas, where they remain under Corps jurisdiction, is part

of the overall management objective to preserve and protect the

quality of project resources. Major considerations, in addition to

management of recreation facilities, include: (ER 1130-2-540, ER

1130-2-550, ER 1165-2-400)

 (1) Protection of project visitors and employees.

 (2) Conservation and protection of project resources,

including enforcement of land use requirements to prevent conflict

between uses.

 (3) Prevention of visual and physical encroachments upon

project lands and waters.

 (4) Preservation and enhancement of the aesthetic integrity of

banks and shorelines and retention of access for public use.

 (5) Prevention or elimination of unauthorized structures and

habitation on project lands or on the water surface.

 (6) Compatibility between recreation uses and equipment

employed in recreation activity and established water quality

standards.

 (7) Environmental improvement through vegetative management.

 (8) Interim use of project lands for appropriate agricultural

practices to optimize recreation and fish and wildlife benefits.

 (9) Monitoring of public recreation use and recreation

technology being used to insure that management practices and future

recreation developments are consistent with discernible public

preferences and needs.

 (10) Encouragement of local officials to adopt and enforce

zoning and building codes to: control private developments adjacent to

any project reservation; and to avoid resultant problems in water

pollution from septic tank drain fields or sewage disposal, visual

pollution due to poor siting or design, solid waste disposal on public

areas, or use of project roads for access to private property.

 b. Visitor Centers. It is the policy of the Corps to plan,
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develop, manage and operate Visitor Centers at water resource

development projects. Visitor Centers educate and inform the public

with regard to the history and mission of the Corps, its role in water

resources development, the project, its purposes, benefits and costs. 

Visitor Centers are further operated to ensure the public is provided

with the information necessary for the safe use and enjoyment of Corps

projects. (ER 1130-2-550)

 c. Public Access. Appropriate access to the project will be

provided for the general public except in areas which are restricted

for security or safety reasons. (ER 1130-2-550)

 d. Shoreline Management Policy. It is the policy of the Corps

to protect and manage shorelines of all Civil Works water resource

development projects under Corps jurisdiction in a manner which will

promote the safe and healthful use of these shorelines by the public

while maintaining environmental safeguards to ensure a quality

resource for use by the public. The objectives of all management

actions will be to achieve a balance between permitted private uses

and resource protection for general public use. Public pedestrian

access to and exit from these shorelines shall be preserved. Corps

management practices are directed toward gaining the maximum benefit

for the general public. (ER 1130-2-406)

 e. General Use of Public Recreation Areas. Public use areas

on Civil Works projects are available for use by all members of the

general public on a first-come, first-served basis. Corps operated

group camp areas may be managed on a reservation system. (ER

1130-2-550)

 f. Use Fees. See Chapter 17, paragraph 17-5.d.

 g. Law Enforcement. States, local governments, and Federal

law enforcement agencies retain statutory authority and responsibility

to enforce the law at Civil Works projects. Section 234 of the Flood

Control Act of 1970 provided that the Secretary of the Army may cause

to be issued citations for aggravated cases of refuse dumping and

other violations of the rules and regulations under Chapter III, Title

36, CFR. Division commanders have been authorized to designate Civil

Works installations wherein the citation authority will be

implemented. Oral and written warnings will be used in minor cases to

the maximum extent possible. There is no authority for Corps

personnel to take an offender into custody. Weapons will not be

carried or used for citation enforcement. Federal, state, and local

law enforcement agencies, as applicable, retain the authority and

responsibility to enforce all laws. Section 120 of Public Law 94-587,

as amended, authorizes the Chief of Engineers to enter into

agreements with states and their political subdivisions for the

purpose of obtaining increased law enforcement services at projects. 

(ER 1130-2-550, USACE Supplement to AR 190-29)

 h. Forest Management. Public Law 86-717 requires that

projects be developed and maintained to encourage, promote, and assure

adequate and dependable future resources, including supplies of forest

products. Multiple-use forest management, including sustained yield

timber production, should be maintained unless a reasonable

determination is made that such a program is incompatible with

recreation, conservation, or other beneficial uses of the project. 

Corps land managers have discretion to determine whether timber

harvesting is practicable with other beneficial uses of the land, and

whether it would yield the maximum benefit and improve such areas. 
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Vegetation, living or dead, will be removed only with justification

such as urgent disease control, urgent insect pest control, fire

hazard reduction, wildlife management practice, removal for

construction of recreational facilities or other specific essential

uses. (ER 1130-2-540)

 i. Wildlife and Fisheries Management. Section 3 of the Fish

and Wildlife Coordination Act (Public Law 85-624) provides for the use

of Civil Works projects for conservation, maintenance and management

of fish and wildlife resources and wildlife habitat. This is

accomplished through licensing of lands and waters to state wildlife

agencies or by cooperative agreement with the Secretary of the

Interior under terms of a General Plan. The General Plan must be

approved jointly by the Secretary of the Army, the Secretary of the

Interior and the head of the State wildlife agency. Licensees may

plant or harvest crops, either directly or by share crop agreement, to

provide food and/or wildlife habitat. Proceeds from the sale of crops

may be used to further fish and wildlife uses in accordance with

project management plans. Proceeds not used for this purpose will be

paid to the United States at the expiration of each five-year period. 

(ER 1130-2-540)

 j. Sanitation and Pollution Control. Sanitation for public

use of Corps projects will be in accord with all Federal, state and

local laws. Solid waste disposal and the control of air and water

pollution will be in accordance with Executive Order 12088 on

prevention, control and abatement of air and water pollution at

Federal facilities. OMB receives a report on the prevention, control,

and abatement of environmental pollution of Federal facilities

annually. Section 107 of Public Law 93-251 permits Federal

participation in the costs of local sewage treatment plant

installations as warranted to provide for treatment of the additional

sewage resulting from the operation of facilities (including

recreation) at Corps projects. All potable water at Civil Works

projects will meet or exceed the minimum standards prescribed by the

Safe Drinking Water Act. (ER 200-2-3)

 k. Soil Erosion Control. Erosion of project lands will be

controlled as practicable to prevent land despoilment, improve project

aesthetic appeal and extend the project life through reduced

siltation.

 l. Distribution of Rental Receipts. Under Section 7 of the

Flood Control Act of 1941 (Public Law 77-228), as amended, the Corps 

shall pay 75 percent of the annual rental receipts from the leasing of

project land under its jurisdiction to the state in which the leased

properties are located. 

 m. Restrictions on Seaplane Operations. Seaplane operations

on all or portions of lakes under the jurisdiction of the Corps may be

prohibited or restricted by district commanders to protect all

authorized uses of the project and the safety of all users. (ER

1130-2-550)

 n. Private Exclusive Use. See Chapter 17, paragraph 17-6.c.

11-2. Responsibility for Operation, Maintenance, Repair, Replacement

and Rehabilitation (OMRR&R). Responsibility for OMRR&R of Civil Works

projects has been established by the general requirements of River and

Harbor and Flood Control laws and administrative policy. Also, under

Section 103(j) of WRDA 1986, non-Federal sponsors are responsible for
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the OMRR&R of any new cost shared projects and/or modifications to

portions of existing projects accomplished under Section 103 of WRDA

1986. However, local sponsors are not responsible for OMRR&R of those

portions of existing projects that are not modified under Section 103

of WRDA 1986.

 a. Navigation.

 (1) Completed Projects. Authorizations for most existing

completed navigation improvements established that operation and

maintenance (O&M) is solely a Federal responsibility to be

accomplished at Federal cost.

 (2) Uncompleted Projects. It is general policy to recommend

that improvements for commercial navigation be maintained by the

Federal Government. The Federal Government is responsible for the

costs of O&M of the "general navigation features" (GNF) of commercial

navigation projects, except that in the case of a deep-draft harbor,

the local project sponsor shall be responsible for an amount equal to

50 percent of the incremental cost of O&M for depths greater than 45

feet (Section 101(b) of WRDA 1986, Public Law 99-662). The

non-Federal sponsor is responsible for the OMRR&R of all public

berthing areas; public terminals, wharves, and transfer facilities;

and dredged material dikes, bulkheads, spillways and embankments

necessary for the project, except as provided under Section 201 of

WRDA 1996 (see paragraph 11-2.a(4) below). The U.S. Coast Guard is

responsible for OMRR&R of all aids to navigation. At projects having

commercial and recreational features, the non-Federal sponsor is

responsible for 100 percent of the OMRR&R cost allocated to

recreation.

 (3) Emergency Clearing and Snagging. Section 3 of the River

and Harbor Act of 1945 provided continuing authority for limited

emergency clearing and snagging of navigation channels of non-vessel

debris (amended by Section 915(g), WRDA 1986). A limit per project is

not specified; however, in any given year a maximum of $1,000,000 may

be used nationwide. Section 3 actions are approved on a case-by-case

basis by HQUSACE (CECW-O).

 (4) Emergency removal of wrecks (i.e., vessels or other

similar obstructions) is authorized by Section 20 of the River and

Harbor Act of 1899, as amended, and is handled as an operational

activity subject to the October 1985 Memorandum of Agreement with the

U.S. Coast Guard (Appendix E, paragraph 6g). A limit per wreck is not

specified; however, in any given year a maximum of $500,000 may be

used nationwide. Section 20 actions are approved on a case-by-case

basis by HQUSACE (CECW-O). Paragraph 12-16, Wreck Removal, contains

further discussion of this authority. Wreck removal actions are

approved on a case-by-case basis by HQUSACE (CECW-O). 

 (5) Dredged Material Disposal Facilities (DMDF).

 (a) Prior to WRDA 1996 (on or before 12 October 1996),

provisions and preparation of disposal areas for initial construction

and subsequent O&M were the responsibility of non-Federal interests,

unless authorizing legislation provided otherwise. All necessary

disposal area retaining works were to be provided by local interests. 

Subsequent to WRDA 1996 (after 12 October 1996), land-based and

aquatic DMDF associated with the construction and O&M of all Federal

navigation harbors and inland harbors (but not the inland navigation

system including the Atlantic Intracoastal Waterway and the Gulf
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Intracoastal Waterway) are considered to be general navigation

features (GNF) of a project and subject to cost sharing (for both

construction and O&M) in accordance with procedures set forth in

Section 101 of WRDA 1986. The Federal share of construction of DMDF

associated with the O&M of Federal harbor projects, Federal DMDF O&M

costs, Federal costs of dredging and disposal of contaminated

sediments that are in or that affect the maintenance of a Federal

navigation channel and Federal costs of mitigation for storm damage

and environmental impacts resulting from Federal maintenance activity

are eligible O&M costs under Section 210 of WRDA 1986 and are

reimbursed from the Harbor Maintenance Trust Fund. The use of a DMDF

designed, constructed, managed or operated by a private entity is not

precluded if, consistent with economic and environmental

considerations, the use of such facility is the least-cost

environmentally acceptable alternative.

 (b) On Federal projects without a non-Federal sponsor,

mosquito control programs are generally a Federal responsibility. 

When, however, non-Federal regulations impose project operational

requirements that create conditions conducive to mosquito propagation,

control programs are their responsibility. Section 148 of Public Law

94-587 calls for using appropriate management practices to extend the

capacity and life of disposal areas. Section 401(c) of Public Law

92-500 provides that when the Chief of Engineers deems it to be in the

public interest, others may be permitted to use dredge material

disposal areas under Corps jurisdiction, subject to an appropriate

charge. Section 217 of WRDA 1996 provides for DMDF partnerships: (a)

the Secretary of the Army may, at the request of a non-Federal

interest, provide additional capacity at a DMDF being constructed by

the Secretary; (b) the Secretary of the Army may permit the use of any

DMDF managed by the Secretary by a non-Federal interest; and (c) the

Secretary of the Army may implement opportunities for public-private

pertnerships in the design, construction, management, or operation of

DMDFs in connection with construction or maintenance of Federal

navigation projects (see paragraph 6-4.a(5) for further conditions and

cost sharing). 

 (6) Environmental Dredging. There are two distinct

authorities in Section 312 of WRDA 1990, as amended by Section 205 of

WRDA 1996 (P.L. 104-303), as described below, under which the

Secretary of the Army is authorized to remove and/or remediate

contaminated sediments from the navigable waters of the United States. 

The authorities of Section 312, as amended, will not be used to remove

or remediate contaminated sediment which are classified as hazardous,

toxic and radioactive wastes (HTRW) (i.e., sediments within the

boundaries of a site designated by the U.S. Environmental Protection

Agency (EPA) or a state for a response action (either a removal action

or remedial action) under the Comprehensive Environmental Compensation

and Liability Act (CERCLA; 42 U.S.C. 9601 et seq), or if they are part

of a National Priority List (NPL) site under CERCLA. Environmental

cleanup of such sites is the primary responsibility of EPA and Civil

Works funds will not be used for cleanup activities. However, direct

assistance to EPA will continue to be provided on a reimbursable basis

for environmental cleanup activities including cleanup dredging and

related studies. Sediments beneath the navigable waters, which are

not classified as HTRW and proposed for removal and remediation under

the authorities of Section 312, as amended, shall be tested and

evaluated for their suitability for disposal in accordance with the

appropriate guidelines and criteria adopted pursuant to Section 404 of

the Clean Water Act (CWA) of 1972 and/or Section 103 of the Marine

Protection and Sanctuaries Act (MPRSA) of 1972 and supplemented by the
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Testing Manuals.

 (a) Section 312(a). Implementation of this section may be

considered where the contaminated material is located outside and

adjacent to a Federal navigation channel and contributes to

contamination of material in the Federal navigation channel and it can

be demonstrated that the costs of removal and remediation, as

appropriate, of the contaminated sediment are economically justified

based on savings in future O&M costs. Savings in future O&M costs are

those associated with reduction in dredging and disposal costs through

the reduction of contaminated sediment input into the navigation

channel (e.g., reduction of contaminated sediment may allow

continuation or resumption of open water disposal, remediation, and

elimination of the need for more costly confined disposal). 

Implementation of this section will require agreement by a non-Federal

sponsor to provide all costs related to disposal of contaminated

sediment. Under this policy, disposal costs are considered those

costs not directly related to removal (dredging), remediation

(treatment), and transport of the material to reasonably proximate

disposal sites; and includes those costs associated with lands,

easements, rights-of-way, retaining dikes, bulkheads, embankments,

excavation of subaqueous pits, capping/liner requirements, fish and

wildlife mitigation associated with the disposal area, and maintenance

and management of the disposal area. The dredging, transport,

disposal, and remediation must be environmentally acceptable pursuant

to all applicable Federal statutes and regulations.

 (b) Section 312(b). Removal and remediation of contaminated

sediment from the navigable waters of the United States for the

purposes of environmental enhancement (restoration) and water quality

improvement may be considered for implementation if requested by an

appropriate non-Federal sponsor and if it is consistent with current

program and budget priorities in effect at the time of consideration. 

Implementation of Section 312(b) will require agreement by a nonFederal sponsor to provide 50 percent of the costs of removal and

remediation. In addition, all costs related to the disposal of

contaminated sediment are a non-Federal responsibility. Disposal

costs are considered those not directly related to removal (dredging),

remediation (treatment), and transport of the material to reasonably

proximate disposal sites; and includes those costs associated with

lands, easements, rights of way, retaining dikes, bulkheads,

embankments, excavation of subaqueous pits, capping/liner

requirements, fish and wildlife mitigation associated with the

disposal area, and maintenance and management of the disposal area. A

project under Section 312(b) authority may include removal and

disposal of contaminated sediment, removal and remediation of

contaminated sediment, or remediation of contaminated sediments in

place.

 (7) Dredged Material Management Studies. The policy in the

following paragraphs regarding development and financing of studies

required for dredged material management at existing Federal

navigation (harbor and inland harbor) projects is applicable to all

Federal navigation projects maintained by the Corps which are eligible

for reimbursement of O&M costs from the Harbor Maintenance Trust Fund

(HMTF). The policy is not applicable to the inland waterways subject

to the waterways user fuel taxes under Public Law 95-502, as amended.

 (a) Study Authorities. Dredged material management plan

(DMMP) studies for existing Federal navigation projects shall be

conducted pursuant to existing authorities for individual project O&M
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as provided in public laws authorizing specific projects, and as may

be supplemented by general authorities relating primarily to

beneficial uses of dredged material. Where DMMP studies disclose the

need to consider expanding or enlarging existing projects, such

studies may only be pursued under specific study authority or under

Section 216 of the Flood Control Act of 1970.

 (b) Management Plans. DMMPs for existing Federal navigation

projects or groups of interrelated projects shall identify specific

measures necessary to manage the volume of material likely to be

dredged over a 20-year period. In those cases where two or more

Federal projects are physically interrelated (share a common disposal

area or a common channel) or are economically complementary, one DMMP

may encompass that group of projects. Non-Federal permitted dredging

within the related geographic area shall be considered in formulating

DMMPs to the extent that disposal of material from these sources

affects the size and capacity of disposal areas required for the

Federal project(s).

 (c) DMMP Study Financing. The cost of DMMP studies for

continued maintenance of existing Federal navigation projects are O&M

costs and shall be federally funded and reimbursable from the HMTF

subject to the following:

 -- Project sponsors, port authorities and other project users,

are partners in dredged material management and must pay the costs of

their participation in the DMMP studies including participation in

meetings, providing information and other coordination activities.

 -- Budgeting priority for the navigation purpose is limited to

the least cost plan that is consistent with sound engineering practice

and meeting environmental standards established by Section 404 of the 

CWA of 1972 or Section 103 of the MPRSA of 1972, as amended (i.e.,

the "base plan"). Therefore, the cost for any component of a DMMP

study attributable to meeting local or state environmental standards

that are not provided for by the requirements of Federal laws and

regulations, shall be a non-Federal cost, and not be recoverable from

the HMTF.

 -- Study activities related to dredged material manangement

for the Federal project but not required for continued maintenance

dredging and dredged material disposal, will not be funded from the

HMTF and will not be included in DMMP studies unless funded by others. 

Such activities would include contamination source identification and

studies leading to the control of non-point sources of pollution.

 -- Studies of project modifications needing Congressional

authorization, including dredged material management requirements

related to the modification, will be pursued as cost shared

feasibility studies with General Investigation funding. Where the

need for such modifications are identified as part of DMMP studies,

O&M funding for the study of the modification should be terminated and

a new feasibility study start sought through the budget process under

the authority of Section 216 of WRDA 1970.

 (d) Costs for beneficial uses that are consistent with and

part of the base plan are O&M costs and the cost of studies pursuant

to these beneficial uses are a Federal cost, recoverable from the

HMTF. However, study costs for beneficial uses which are not part of

the base plan, beyond those reconnaissance level studies needed to

identify these potential uses as part of DMMP studies, are either a
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non-Federal responsibility or are a shared Federal and non-Federal

responsibility depending on the type of beneficial use (i.e.,

restoration and protection of environmental resources; placement of

material on beaches).

 (e) Where there is a feasibility study for modification of an

existing Federal navigation (harbor and inland harbor) project and a

need for dredged material management planning for the maintenance of

the existing Federal navigation project being modified, the costs of

dredged material management and disposal studies will be allocated

between the existing project and the feasibility study for the project

modification. Costs will be allocated by first identifying all costs

that would be associated with planning for dredged material management

for the existing authorized Federal project at existing depths and

widths. These costs will be allocated to maintenance of the existing

project and be funded from the O&M, General, appropriation at 100

percent Federal cost. Increments of dredged material management study

costs above those required for planning for continued maintenance of

the existing project, which are associated with disposal of dredged

material from construction of the project modification or increments

of new maintenance cost attributable to the project modification, will

be shared 50-50 with the non-Federal sponsor as feasibility study

costs. The definition of the required dredged material management

studies and the allocation of costs of these studies between the

existing project and the feasibility study must be a carefully

coordinated effort involving planning and operations elements and the

non-Federal sponsor. While the costs for dredged material management

are allocated between O&M and the feasibility study, the dredged

material management studies will be conducted as a unified study

within the context of the feasibility study.

 b. Flood Control. 

 (1) WRDA 1986 does require that the non-Federal sponsor(s) pay

for, and be responsible for, the cost of project OMRR&R. The general

policy is that the non-Federal sponsor shall operate, maintain,

repair, replace and rehabilitate (OMRR&R) the project and that any

agreement made during PCA negotiations with more local involvement is

satisfactory and within policy guidelines. Corps reservoir projects,

both multiple-purpose and single purpose flood control (dam) projects,

undertaken prior to 1986 are operated and maintained by the Federal

Government. WRDA 1986, enacted 17 November 1986, provides that, for

new reservoir (dam) projects, non-Federal interests shall be

responsible for OMRR&R requirements related to the flood control

function. In the case of modification to an existing Corps operated

and maintained reservoir, interpretation of the Act allows for several

possibilities as to which partner (Corps or non-Federal sponsor)

actually OMRR&Rs the project for flood control. The possibilities

range from a non-Federal sponsor performing all these functions to a

request by the non-Federal interests to have the Federal Government

perform project OMRR&R. The use of an incremental approach to

determine sharing of the flood control OMRR&R costs would be

equitable. The Federal Government should pay the flood control OMRR&R

costs of the existing reservoir and the non-Federal sponsor is to pay

for the increment of costs introduced by the modification. NonFederal sponsors for flood control and multipurpose dams constructed

under the provisions of WRDA 1986 should be fully prepared by the

Corps to accept their responsibility for OMRR&R:

 (a) During the feasibility phase, all project OMRR&R and dam

safety requirements should be identified and discussed with the non-
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Federal. The non-Federal must be made aware of the project design,

the expected function of each project element, the requirements of

operation, and all state and other Federal requirements. A turnover

plan that establishes responsibilities and a definite point for the

turnover of the project to the non-Federal should be documented in the 

Management Plan and in the feasibility report.

 (b) In the PED phase, the responsible Corps commands should

hold necessary meetings between the non-Federal, the state, and other

Federal agencies to refine all criteria and requirements of project

design, construction and OMRR&R. The non-Federal must be made aware

that after transfer of the project, the Corps is in a supporting role

with respect to dam safety and will only participate in inspections

and review performance data.

 (c) In the construction phase, the responsible Corps commands

should schedule and coordinate visits to the site for the non-Federal

and state representatives to observe construction of significant and

critical features of the project. During these visits, the nonFederal should be briefed on the construction records and reports.

 (d) The turnover of the project to the non-Federal will occur

after the first periodic inspection which will be conducted and

documented by the Corps with participation by the non-Federal. Future

periodic inspections will be conducted by the non-Federal with a

representative of the Corps. The following items will be included in

the turnover plan and be completed prior to project turnover: OMRR&R

Manual; initial dam safety training for the non-Federal; the emergency

identification, emergency operations and repair, inundation maps and

the Federal portion of the notification subplans of the Emergency

Action Plan (EAP); instrumentation, monitoring and surveillance plans;

periodic inspection schedule; and, appropriate review and

certification by the State. Responsible Corps commands should monitor

the performance of these projects by reviewing yearly instrumentation

records and by the observations of the Corps representative

participating in the scheduled inspections. 

 (2) Flood control works such as levees, channel improvements, 

and emergency repair work under Section 5 of the 1941 FCA (often

referred to as Public Law 84-99) authority are OMRR&R'd by non-Federal

interests. There is one exception: channel improvements specifically

authorized under the Flood Control Act of 1938 are a Federal O&M

responsibility.

 (3) Projects for snagging and clearing for flood control under

Section 208 of the Flood Contol Act of 1954 and emergency bank

protection under Section 14 of the Flood Control Act of 1946, as

amended, require O&M by non-Federal interests. 

 c. O&M Controls, Flood Control Projects. Section 208.10,

Title 33, CFR contains regulations for the O&M of local flood

protection works approved by the Secretary of the Army in accordance

with authorities contained in Section 3 of the Flood Control Act of 22

June 1936 (49 Stat. 1571), as amended and supplemented. District

commanders are to keep informed as to the extent of compliance with

the local O&M requirements through the Inspection of Completed Works

Program, and analysis of semi-annual reports required to be submitted

by the operating and maintaining agency. (ER 1130-2-530)

 d. Flood Control (Mississippi River and Tributaries). Local

responsibility is limited to regular levee maintenance, but this is
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defined by law to consist only of mowing grass and weeds, local

drainage and minor repairs of main river levees. The Federal

Government is responsible for extraordinary maintenance of levees and

all maintenance of structures other than levees. 

 e. Shore Protection Projects (including Hurricane and Storm

Damage Reduction). Maintenance is a non-Federal responsibility. 

Federal participation may be provided for a specified period in

periodic nourishment when nourishment has been selected and adopted in

lieu of more extensive construction, and such Federal participation is

adopted as part of the recommended project. (ER 1165-2-130)

 f. Other Projects. Except for the OMRR&R on fish and wildlife

enhancement lands, the non-Federal sponsor is responsible for 100

percent of the OMRR&R cost for all non-navigation projects. On fish

and wildlife enhancement lands, the non-Federal sponsor is responsible

for 25 percent of the OMRR&R costs.

 g. Requirements of Project Cooperation for Cost Shared

Projects. During the negotiation of a PCA, the non-Federal sponsor

should be made aware of activities it will be required to undertake in

the performance of its O&M responsibilities, including the estimated

annual cost to perform those OMRR&R functions. Non-Federal sponsors

should be made aware that the estimated annual OMRR&R cost will be

refined as the final project design is completed and will be adjusted

accordingly after the project is transferred for OMRR&R. (See, also,

paragraph 13-8.)

11-3. Major Rehabilitation. Major rehabilitation shall consist of

either one or both of two mutually exclusive categories, i.e.,

reliability or efficiency improvement.

 a. Reliability.

 (1) Rehabilitation is a major project feature restoration

consisting of structural work on a Corps operated and maintained

facility, such as a lock, dam, hydropower plant, etc., intended to

improve reliability of an existing structure, the result of which will

be a deferral of capital expenditures to replace the structure.

 (2) Rehabilitation will be considered as an alternative when

it can significantly extend the physical life of the feature and can

be economically justified by benefit-cost analysis. The work will

extend over at least two full construction seasons and will require at

least $5.1 million in capital outlays if initially funded before 1

October 1994. For inland navigation projects initially funded in

Fiscal Year 1997, the reliability threshold will increase to $8.2

million.

 b. Efficiency Improvement. The efficiency improvement

category will enhance operational efficiency of major project

components. Operational efficiency will increase outputs beyond the

original project design. Efficiency improvement will require at least

$1.03 million in capital outlays on a component which does not exhibit

reliability problems.

 c. Threshold Considerations. The threshold amounts listed for

the reliability and efficiency improvement categories shall be

adjusted annually according to the Administration's economic

assumption published each year as guidance in the Annual Program and

Budget Request for Civil Works Activities of the Corps of Engineers
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(i.e., "Budget EC"). In determining whether project work falls within

the dollar thresholds set forth in paragraphs 11-3.a(2) and 11-3.b

above, the dollar value of work on separate projects shall not be

aggregated, even if within the same river or waterway system. 

11-4. Correction of Design or Construction Deficiencies. 

Occasionally a project may require modification after project

completion because of a deficiency detected in the original Federal

engineering design or construction of the project. A design or

construction deficiency is a flaw in the Federal project that

interferes significantly with the project's authorized purposes or

full usefulness as intended by Congress at the time of initial

construction. A design deficiency may be patent and readily

observable or latent and remain hidden for years after completion of

the project. Work required to correct a design or construction

deficiency can be accomplished under existing project authority

without further congressional authorization if the proposed corrective

action meets all the following criteria: (ER 1165-2-119)

 a. It is required to make the project function as initially

intended by the designer in a safe, viable and reliable manner.

 b. It is not required because of changed conditions.

 c. It does not change the authorized scope, function, or

purpose of the project.

 d. It is incrementally justified by current economic

considerations or otherwise needed and justified for safety reasons.

 e. It is not required because of inadequate local maintenance.

 f. If corrective measures are proposed and adopted that

involve cost sharing, there is a non-Federal sponsor willing to enter

into a project cost sharing agreement to cover the cost sharing

requirements (using the same percentage as specified in WRDA 1986 for

the project purpose(s)).

11-5. Dam Operations Management. Corps of Engineers dams are managed

in accordance with the safest and most effective criteria and

procedures that can practicably be established. Projects are

inspected at appropriate intervals for signs of weakness or distress

by trained personnel. A Dam Safety Plan is prepared for each dam

consisting of: an emergency notification procedure; a description or

list of conditions leading to emergency situations and way of dealing

with them; reservoir de-watering procedure; dam failure inundation

maps; a listing of location, types, and quantity of emergency repair

materials and equipment; details outlining responsibilities for

inspection and execution of emergency repairs; and a list of

contractors available within a reasonable distance of the dam. (ER

1130-2-530)

11-6. Dam Safety Assurance. This program provides for modification

of completed Corps dam projects when detailed studies indicate that

safety improvements are warranted in light of present day engineering

standards and knowledge. The program facilitates upgrading of dams

and related facilities constructed or operated by the Corps when new

hydrologic or seismic data or changes in state-of-the-art design or

construction criteria make upgrading necessary for safety purposes. 

The indicated modifications must be within the Chief of Engineers

discretionary authority to rectify, or a specific congressional
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authority must be obtained. Generally, existing authorities are

sufficient to permit improvements to a project for safety purposes if

such improvements do not alter the scope or function of the project or

substantially change any of its specifically authorized purposes. 

Primary examples of project features eligible for upgrading under this

program are: enlarging existing or constructing new facilities to

provide adequate flood discharge capability; raising the dam height to

provide adequate freeboard allowance; and increasing structural

stability of the dam foundation or structure to withstand hydraulic

and/or seismic loading. Modifications based on changes in

state-of-the-art design or construction criteria require thorough

documentation. Other modifications to correct conditions that may

threaten the integrity of a dam are accomplished as part of major

rehabilitation or routine maintenance. The Dam Safety Assurance

Program is also designed to upgrade dams built by the Corps and turned

over to local interests to operate and maintain; however, additional

authorization may be required for such projects. (ER 1110-2-1155)

11-7. Changes in Water Control Plans. Authorities for the allocation

and regulation of reservoir storage in projects operated by the Corps

are contained in project authorization acts. Some modifications to

approved water control plans may be undertaken to provide more

efficient use of the project. It is the policy of the Chief of

Engineers that reservoir regulation procedures be evaluated

continually. The objective of this policy is to improve water

management in light of changing conditions. However, proposed

changes, including those required to maintain instream flow needs,

must be carefully reviewed in conjunction with the authorizing

legislation to determine the extent of the change which may be

undertaken. Further, PL 101-640 requires that any change to a water

control plan, regardless of purpose, must be developed with full

public involvement. Water control plans may be modified to add a

purpose for which the Congress has granted general authority to all

Corps reservoirs. Such purposes are limited to: recreation (PL 78-

534); municipal and industrial water supply (PL 85-500); fish and

wildlife conservation (PL 85-624); water quality control (PL 92-500);

and threatened and endangered species preservation (PL 93-205). The

addition of any other purpose would require congressional

authorization. (To the extent practical, without adverse impacts on

Federal project functions, other adjustments to suit locally-desired

objectives may be considered and proposed contingent upon suitable

non-Federal fees or contributions.) Often, proposals for changes of

this type involve increases in the length of time waters are stored at

various levels in the reservoir. Such proposals may require 

acquisition of a greater interest in reservoir lands on which flowage

easements were initially obtained. The cost of those additional land

takings along with all other benefits and costs should be considered

in the decision to change reservoir regulation. If such lands are

leased, amendments to the lease may be required. (ER 1110-2-240, ER

1165-2-119).

11-8. Mitigation of Damages Resulting from Construction and Operation

of Project. The Federal Government is not normally held responsible

for damages incidental to Civil Works activities within areas subject

to the Navigation Servitude. Normally, as a condition of project

authorization, local interests are required to hold and save the

United States free from damages due to construction, operation, and

maintenance of the project works. Section 9 of Public Law 93-251

states that such requirement does not include damages due to the fault

or negligence of the United States or its contractors. While the

Federal Government may be liable for damages resulting from the
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negligence of a government employee, no recovery is allowable

resulting from the exercise of a discretionary function by a

government official. The Chief of Engineers has discretionary

authority under certain conditions to provide remedial work to correct

certain adverse conditions resulting directly from a Civil Works

project. This includes any destructive erosion of lands beyond

Federal property limits around reservoir boundaries. The Office of

Counsel should be consulted on the applicability of this authority to

individual cases. (33 U.S.C. 633, 701(q))

11-9. Use of Corps Reservoir Flowage Easement Lands. Flowage

easement lands present a difficult challange. The Corps has only

purchased certain rights associated with periodic water storage on the

property and does not exercise the absolute control associated with

ownership in fee. Therefore, the Corps ability to plan for developing

and using flowage easement lands in the master planning process is

limited. Though easement provisions may vary, ER 405-1-12 sets forth

the current flowage easement requirements. It provides that no

structure for human habitation shall be constructed or maintained on

the land, that no other structure shall be constructed or maintained

on the land except as may be approved in writing by the Corps, and

that no excavation shall be conducted or landfill placed without Corps

approval. Under the standard flowage easement, the land use decisions

under the purview of the district commander are approval for

structures other than for human habitation, and approval of

excavations or landfill placements. Final approval authority for

release of the restriction on human habitation rests with the ASA(CW). 

Guidance on considerations in making the land use decisions and

recommendations for flowage easements is presented in the following

paragraphs. This guidance applies to decisions on future land use and

does not apply to corrective actions for unpermitted encroachments on

flowage easement areas.

 a. Structures Other Than for Human Habitation. Approval for

structures other than for human habitation rests with the district

commander. However, to ensure national and regional consistency in

policy application, any approval action must be coordinated with the 

division commander before it is finalized. The following criteria

should be used for evaluating the approval of these structure on

flowage easement lands.

 (1) Compatibility with Project Operations. The structure

must be compatible with project operations. Therefore, any proposal

which would result in a significant increase in debris or

sedimentation in the reservoir will not be approved. Any proposed

structure for the production or storage of highly volatile, hazardous,

toxic, or water reactive materials will not be approved.

 (2) Compatibility with Floodplain Management. In accordance

with the requirements of the national policies on floodplain

management, any non-residential structure (building), including such

structures as barns and storage buildings, must be elevated above the

100-year flood plain or floodpool or floodproofed watertight to or

above the 100-year flood level. Also the landowner must demonstrate

that there is no practical alternative to location of the structure

other than within the floodpool or flood plain. Certain types of

development are compatible with periodic low velocity inundation

including parking lots and other paved surfaces, field recreation

facilities (backstops, goalpost, etc.) and open type structures

(picnic shelters). These kinds of developments would generally be

approved unless their construction reduced the flood control storage
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capacity of the project or considerations of safety or property damage

preclude the approval (e.g., inadequate warning time to evacuate

people from a recreation area).

 (3) Excavation or Landfills. The primary consideration in

approving excavations or landfill placements is the preservation of

the flood storage capacity of the project. Therefore, landfill

placements will not be approved unless substitute flood storage is

provided. Proposals for excavation and grading of flowage easement

areas will not be approved if they result in loss of flood control

storage. Approval authority for excavations and landfills rests with

the district commander. However, to ensure national and regional

consistency in policy application, any approval action must be

coordinated with the division commander before it is finalized.

 c. Release from Restriction on Human Habitation. Generally,

the restriction on human habitation will not be recommended for

release. Human habitation below the flood control or navigation pool

elevation places an undue limitation on the Congressionally authorized

operation of the project. However, if it can be demonstrated that the

release will not result in a significant threat to human life, health,

or safety, and will not place or suggest any restriction on the

operation of the project, the release may be approved under certain

conditions. As with other structures, such developments must meet the

requirements of national policy on flood plain management as set forth

in Executive Order 11988 and its implementating regulations. 

Executive Order 11988 requires consideration of alternatives which

avoid the flood plain whereever practical. Therefore, any landowner

requesting relief from the restriction on human habitation in a flood

plain or project pool must also demonstrate that there is no practical

alternative to the location of the habitable structure. In addition

to satisfying these requirements, if there is any threat to human

life, the proposal for release of the human habitation restriction

will not be recommended for approval. However, if it can be

demonstrated that there would be adequate warning time to evacuate the

structure in the event of a flood that would inundate the site and

that non-flooded egress out of the project area (offsite) then it may

receive approval. Proposals for release of human habitation

restriction must be submitted through the Major Subordinate Command to

HQUSACE for approval by the ASA(CW). The human habitation restriction

is a property right acquired by the Federal Government which must be

released by a deed, including the provision for adequate compensation

for the disposal, in accordance with ER 405-1-12.

11-10. Granting Use of Civil Works Project Real Estate. Lands and

waters of Civil Works projects frequently can, without detriment to

the primary project purposes, also be used to provide many other forms

of public and private benefits. Such uses may take place either under

Corps management or by third parties under the following authorities:

 a. 10 U.S.C. 2667 provides for the lease of real and personal

property which is not excess or required for public use. Leases are

limited to five-year terms unless the Assistant Secretary of the Army

(Installations and Logistics) determines that a longer lease term will

promote the national defense or will be in the public interest. 

Agricultural and grazing leases are examples of leases issued under

this authority. 

 b. 16 U.S.C. 460d provides for lease of real property at water

resources development projects when it is determined to be in the

public interest. Generally, these leases are for commercial
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concessions and recreational purposes. This authority is also used

for licenses for fish and wildlife purposes. 

 c. 43 U.S.C. 961 provides authority to grant easements on

Government lands for electric power and communication lines.

 d. 10 U.S.C. 2669 provides authority to grant easements for

gas, water and sewer pipelines.

 e. 10 U.S.C. 2668 provides authority to grant various types of

easements for rights-of-way.

 f. 30 U.S.C. 185 provides authority to grant easements for

fuel-carrying pipelines and related facilities.

 g. 10 U.S.C. 4777 provides authority for ferry landings,

bridges and livestock crossings.

 h. 40 U.S.C. 319 provides for easements for rights-of-way or

other purposes.

 i. The general administrative power of the Secretary of the

Army allows for use of Army real property by a license or permit. 

11-11. Disposal of Civil Works Project Real Estate. Power to dispose

of real estate belonging to the United States is vested in Congress

(Article VI, Section 3, clause 2 of the Constitution) and no Corps

real estate will be sold or otherwise disposed of without authority of

Congress. The major portion of real estate disposal actions performed

by the Corps is predicated on authority derived from the Federal

Property and Administrative Services Act of 1949 (Public Law 152, 81st

Congress), as amended (40 U.S.C. 471, et seq.), and the rules,

regulations and delegations of authority issued by the General

Services Administration (GSA) thereunder. For example, GSA has

delegated to the Secretary of the Army the authority to dispose of

real property that has an estimated value of $15,000 or less. 

However, absent specific delegation from GSA or specific authorization

by Act of Congress to dispose of project lands, lands excess to

project requirements must be turned over by the Corps to GSA for

disposal in conformance with the 1949 Act. Some general examples of

specific disposal authority are:

 a. 10 U.S.C. 2571(a) authorizes the transfer, without

reimbursement, of real estate between the Army, Navy, Air Force and

Coast Guard.

 b. Specific authority exists for transfers to the Tennessee

Valley Authority, Federal Prison Industries, Inc., the Veterans

Administration, the Department of Transportation, the National Weather

Service, and to the District of Columbia.

 c. 16 U.S.C. 505a, 505b authorizes the interchange of

national forest lands and lands under the control of the military

departments.

 d. 33 U.S.C. 558b authorizes the exchange of Government-owned

excess fee-owned land and easement interests for land or interests in

land required for river and harbor project purposes. 33 U.S.C. 558b-1

extends this authority to flood control projects.

 e. 49 U.S.C. 2215 provides for disposal of lands for airport
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development.

 f. 33 U.S.C. 578 provides for the conveyance of land which is

part of a water resources development project to a state, political

subdivision thereof, port district, port authority, or other body

created by a state for the purpose of public port or industrial

facility development. As a matter of policy, only lands within a

navigation project will be made available for conveyance for these

purposes.

 g. Public Law 84-999 provides authority for the sale of lots

for cottage development and use. 

11-12. Pest Management Programs. 

 a. Administration. HQUSACE assigns responsibilities, issues

guidance, and exercises management controls to assure compliance with

prescribed pest management procedures at Corps reservoir projects. 

Objectives are to attain an acceptable level of pest control while

providing for the safety of the environment, the public, and pest

management personnel. Division commanders coordinate with EPA

regional offices and assure compliance with guidance and regulatory

requirements. District commanders may approve and supervise

implementation of pest management plans.

 b. Annual Pest Management Plans. Field project managers

prepare and submit detailed annual plans, including anticipated use of

pesticides, to their district offices for review and approval.

 c. Training, Personnel Protection and Surveillance. All

personnel directly involved in pesticide application must be properly

trained prior to making applications. Specialized training and/or

certification is required for restricted use pesticide applicators. 

Personnel whose duties include supervision of pesticide applications

must have a practical knowledge of applicable Federal and state

regulations. Health and safety practices and procedures, including

the use of personal protective equipment and clothing where

appropriate, are required. Pesticide applicators also receive medical

surveillance, which at a minimum consists of annual physical

examinations. (ER 1130-2-540, EP 1130-2-540) 

 d. Documentation. Pesticide application data is promptly

recorded and retained at project offices. (ER 1130-2-540, EP 1130-2-

540)

11-13. Acceptance of Donations of Materials. 

 a. The Act of 24 April 1888 (33 USC 591) authorizes the

Secretary of the Army to accept donations of lands or materials

required for maintenance or prosecution of works for the improvement

of rivers and harbors for which provision has been made by law. This

authority has been delegated to the Chief of Engineers. Division

commanders are delegated authority to accept unconditioned donations

of such materials not to exceed a value of $5,000. Acceptance of

donations of lands has not been delegated by the Secretary of the

Army.

 b. Section 203 of the Water Resources Development Act of 1992

authorizes the Corps to accept contributions from groups and

individuals in connection with carrying out water resources projects,

for environmental protection and restoration or for recreation. The
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Corps may accept and use contributions to provide for operation and/or

maintenance of recreation areas and the protection and restoration of

natural resources at water resource development projects. Cash,

funds, materials, and services may be accepted, but real estate can

not be accepted. (ER 1130-2-500, Chapter 11)

 c. Section 225 of the Water Resources Development Act of 1992

authorizes the Corps to develop and implement a program to share the

cost of managing recreation facilities and natural resources at water

resource development projects. The Corps is authorized to enter into

cooperative agreements (Challenge Cost Share Agreements) with nonFederal public and private entities to provide for operation and/or

management and development of recreation facilties and natural

resources where such facilities and resources are being maintained at

complete Federal expense. Funds, materials, and services may be

accepted in conjuction with this program. (ER 1130-2-500)

11-14. Discontinuation of Maintenance of Projects. Some waterways

and harbor improvements constructed years ago may no longer be needed

or used for the purposes for which originally intended, because of

changed physical and economic conditions. Efforts are made to

transfer the projects to appropriate state or local agencies for

maintenance where obsolete waterways serve local purposes such as

recreation or as sources of municipal or industrial water; or where

local developments have grown up along the navigation pools. Where

Federal improvements are not justified or no longer serve their

authorized purpose, the Corps will recommend discontinuation of

maintenance to Congress. Pending arrangements for disposition, they

are maintained as economically as possible to ensure that public

health and safety are not endangered. Obsolete harbor improvements,

which no longer have importance for commercial or recreational

traffic, are not maintained by the Federal Government.

11-15. Operation and Maintenance Resumption after Suspension of

Substantial Curtailment of Maintenance.

 a. Suspended or substantially curtailed maintenance defines a

situation where a conscious decision has been made in the past to

suspend, stop, or curtail normal Federal maintenance practices for a

project or specific feature(s) of a project. This decision may not

have been from a study or a document but may reflect budget realities

of competing needs of scarce resources, benefits diminished or gone at

the project, or environmental compliance constraints. Presently the

project dimensions or capacities are diminished enough to require a

special one-time funding to bring the project up to a level of

performance to accrue benefits for authorized purposes.

 b. The reinstatement of Federal O&M budgetary support in

authorized projects with suspended or substantially curtailed

maintenance requires: (1) reaffirmation of Federal interest; (2)

determination that the proposed maintenance is engineeringly,

economically, and environmnetally sound; and, (3) approvals.

 

11-16. Monitoring Coastal Projects. In the planning, design,

construction and O&M of coastal projects, elements of uncertainty

about the performance and ultimate effectiveness of the project works

are always present in some degree because of the complex and forceful

processes at work. Monitoring of completed, in-place projects is a

means of achieving new insights for future application in development

of other projects. The Corps O&M budget generally includes provision

for undertaking intensive monitoring programs at a select few Corps
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projects -- shore protection and navigation. Where the shore

protection project is Construction, General funded, no funds will be

used to undertake monitoring. (Proposals for new projects should

include, as part of the recommended project authority, provision for

accomplishment of monitoring efforts foreseen as desirable.) The

Waterways Experiment Station (WES) will provide technical advice on

program preparation and execution to Corps districts. (ER

1110-2-8151)

11-17. Energy Conservation. Energy conservation goals were

established by the Office of the Assistant Secretary of Defense

(Logistics and Material Management) in Defense Energy Program policy

Memorandum 86-3. FOAs have been directed to meet the energy

conservation goals. 

11-18. Environmental Compliance, Pollution Prevention and HTRW Site

Restoration.

 a. General.

 (1) Corps Projects and Facilities. This paragraph (11-18)

addresses the Corps policies and responsibilities for proper

environmental stewardship of Corps operated and maintained Civil Works

projects and facilities. Elements of the Corps Environmental

Management System are presented. Policy guidance is contained in ER

200-2-3, Environmental Compliance Policies, dated 30 October 1996.

 (2) Sponsor Projects. This paragraph (11-18) does not apply

to projects operated and maintained by sponsors. While the

environmental laws apply equally to projects and facilities

irrespective of who operates them, this paragraph (11-18) includes

Corps regulations, procedures and processes that are not imposed on

others.

 (3) Outgrants. All real estate outgrants have a provision

that requires the grantee to protect project property against

pollution of its air, ground, and water. Disposal of any toxic or

hazardous materials on the premises is specifically prohibited. All

laws, regulations, conditions or instructions affecting the grantee’s

use of land issued by the Environmental Protection Agency, or any

Federal, state, interstate or local governmental agency having

jurisdiction are made a condition of the outgrant. Periodic

compliance inspections are performed to assure the grantee’s

compliance with all environmental provisions. If noncompliance is

found with an environmental provision that is potentially a regulatory

violation, the lessee must be notified in writing. The appropriate

regulatory agency will determine if there is a violation, and when

compliance is achieved. (See ER 405-1-12, paragraph 8-99.e(3)(d))

 b. Environmental Compliance.

 (1) Policy. The Corps will be a proactive facility leader in

attaining and sustaining compliance with environmental standards 

established in applicable Federal, DOD, DA, state, and local laws and

regulations. Locks, dams, dredges, campgrounds and property under

Corps control and facilities under lease or license, such as marinas,

oil and gas exploration and extraction areas, and grazing lands, must

be managed to be compatible with the environment.

 (2) The Environmental Compliance Program. 
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 (a) Environmental Compliance Assessments. The purpose of

Environmental Compliance Assessments is to identify and correct

noncompliance. Environmental Compliance Assessments, conducted on a

regular basis, provide a picture of compliance levels and corrective

action requirements. Environmental Compliance Assessments are a

proactive approach to assuring that potential environmental protection

and compliance issues are promptly identified. Once identified, the

full range of specialties within the Corps can be called on to assist

in their resolution. Deficiencies are prioritized and corrective

actions taken as routine maintenance work or programmed in the Civil

Works budget process.

 (b) The Environmental Assessment and Management (TEAM) Guide

and the Environmental Review Guide for Operations (ERGO). These

manuals are the foundation of a comprehensive program to achieve,

maintain, and monitor compliance with applicable environmental laws

and regulations, and to implement good management practices. The TEAM

and ERGO manuals contain checklists of Code of Federal Regulations,

Engineer Regulations, and Management Practices that show legal

requirements and specific operations or items to review at Civil Works

projects and facilities. The manuals are divided into categories or

“protocols” to assist in the evaluation of such items as: air

emissions, cultural resources, hazardous materials and waste, natural

resources, pesticides, solid waste, wastewater, underground storage

tanks and toxic substances. They are designed for on-site personnel

to use for internal (self) assessments or for district teams,

contractors, and others to use for external assessments.

 (c) Annual Assessments. Annual external or internal

assessments are performed to evaluate environmental compliance and to

give necessary feedback so supervisors can organize, direct, and

control environmental compliance and protection activities. A

multidisciplinary approach is essential to resolving environmental

issues because most activities that affect the environment must be

assessed from various perspectives to achieve the most effective

environmental management. TEAM/ERGO assessments: enhance Corps

environmental compliance at Federal, state and local levels; improve

Corps environmental management; build supporting budget requirements;

and, assure supervisors that their environmental programs will be

implemented effectively according to Corps goals and objectives.

 c. Enforcing Environmental Regulations. Managing Corps

projects and facilities includes accepting responsibility for

compliance with applicable environmental regulations. The EPA and

other Federal and state agencies are charged with enforcing

environmental regulations. An effective TEAM/ERGO assessment program

will help to reduce risks and liability.

 d. Pollution Prevention. 

 (1) Policy. As in the case of environmental compliance,

pollution prevention is one of the four pillars of the Army

Environmental Strategy. It is Corps policy that:

 (a) The Corps will comply with all applicable Federal, state, 

and local environmental laws and regulations.

 (b) Pollution shall be prevented or reduced at the source. 

Wastes and by-products that cannot be prevented shall be recycled. 

Pollutants that cannot be recycled shall be treated to minimize

environmental hazards. Disposal or other release into the environment
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shall be employed only as a last resort and shall be conducted in an

environmentally safe manner.

 (c) Pollution prevention plans shall be prepared, maintained,

and used as a basis for pollution prevention at each Corps project or

facility. Corps operations and activities shall incorporate pollution

prevention practices on a life-cycle basis.

 (d) Corps personnel shall practice pollution prevention.

 (2) The Pollution Prevention Program.

 (a) Executive Order (EO) 12856. Signed by the President on 3

August 1993, EO 12856 "Federal Compliance With Right-to-Know Laws and

Pollution Prevention Requirements", sets a goal of fifty percent

reduction in toxic chemical releases by 1999. The Secretary of

Defense issued a directive on 11 August 1994, subject: Comprehensive

Pollution Prevention Strategy, which incorporates the requirements of

several EOs, including EO 12856, as well as recommendations from the

Deputy Under Secretary of Defense (Acquisition Reform). Civil Works

projects and facilities subject to the Emergency Planning and

Community Right to Know Act of 1986 (EPCRA) reporting requirements

must develop and implement pollution prevention program plans as an

ongoing process.

 (b) EPCRA. Starting in calendar year 1994, Corps Civil Works

facilities, as do all Federal facilities, are required to comply with

the reporting requirements of EPCRA. The basic philosophy of EPCRA is

to get the community involved with emergency planning by letting them

know what kinds of danger they can be exposed to based on the kinds of

chemicals, the quantities of those chemicals, and the possible effects

of those chemicals on the population during an unforeseen incident. 

It requires that detailed information about the nature of hazardous

substances in or near communities be made available to the public. In

addition to informing the public, certain EPCRA reports are submitted

directly to the EPA. Whenever possible, EPA expects the facility to

use information already in existence, such as permit information and

monitoring data already being collected and used by the facility for

compliance with other environmental, health, and safety activities.

 (c) EPCRA Reporting. EPCRA contains several different

reporting and planning requirements. Whether a facility must comply

with a particular section of EPCRA, for example: Sections 302, 304,

311, 312, 313, is based on certain thresholds for storage, use,

manufacturing, processing, or release of listed chemicals. Because

each section of EPCRA has discrete thresholds and chemical lists, most

facilities are likely to be subject to one or more sections of EPCRA.

 e. HTRW Site Restoration.

 (1) Policy. HTRW considerations at Corps operated and

maintained projects and facilities are generally anticipated to be of

a localized nature. Examples of HTRW situations may include

unanticipated discovery of HTRW sites, contaminated discharges, and

illegal disposal of HTRW materials on project lands. Corps policy is

to work closely with appropriate Federal, state, and local agencies to

address completely its responsibilities for HTRW situations.

 
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(2) HTRW Guidance. When HTRW sites are discovered at a Corps

operated project or facility, the affected area must be secured and

protected until the contaminants are identified and site safety and

health programs and plans are put into effect. HTRW considerations of

appropriate post-response monitoring will be included in the project 

O&M Manual. ER 1165-2-132, Hazardous, Toxic, and Radioactive Waste

(HTRW) Guidance for Civil Works Projects, is a reference for this

topic.
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CHAPTER 12

NAVIGATION

12-1. The Federal Interest. Federal interest in navigation is

established by the Commerce Clause of the Constitution, and subsequent

court decisions, defining the right to regulate navigation and

improvement of the navigable waterways. The navigable waters are

important to the nation as a major means of commercial transportation

and as a part of national defense. The merits of Civil Works projects

for improvement of navigation are currently measured against a single

Federal objective--national economic development--in accord with the

Water Resources Council’s (WRC) Principles and Guidelines (P&G).

 a. Project Scope. Navigation improvements are directed and

authorized by congressional legislation or other action. Over the

years, these actions have circumscribed the scope of improvements to

include providing waterway channels, anchorages, turning basins, locks

and dams, harbor areas, protective jetties and breakwaters--with

adequate dimensions for safe and efficient movement of vessels. Not

included are facilities such as docks, terminal and transfer

facilities, berthing areas, and local access channels, which have

traditionally been the responsibility of local interests.

 b. Project Beneficiaries. Federal improvements must be in the

general public interest and must be accessible and available to all on

equal terms. Although federally-provided general navigation

facilities may serve them, improvements are not made to provide

navigation access to privately-owned facilities (including commercial

marinas) or access to restricted membership yacht clubs and similar

establishments not open to the general public on equal terms, nor are

improvements undertaken to enhance and primarily benefit land

development schemes, waterway cargo transfer and lightering

facilities, or to provide barge fleeting areas.

 c. Navigation Servitude. The Corps role in navigation is

heavily influenced by the common law principle of navigation

servitude, essentially the public's right of way to reasonably free

use of all streams and water bodies for navigation. Federal concern

does not extend, however, to providing unrestricted use of unlimited,

obstructionless water areas.

 d. Federal Funding. Until passage of the Water Resources

Development Act (WRDA) of 1986 (Public Law 99-662), commercial

navigation improvements were constructed, operated and maintained by

100 percent Federal funding (except for land and relocations

requirements). Such projects authorized by that Act, and

subsequently, may involve local cost sharing. Non-Federal cost

sharing for recreational navigation projects has always been the norm. 

(See paragraph 6-4.c)

 e. Improvements by Others. There is no general authority

available to the Chief of Engineers whereby a grant or contribution of

Federal funds can be made for navigation features or navigation

benefits of a non-Corps project to be constructed by another agency or

by local interests. The Chief of Engineers cannot reimburse, or in

any way credit, local interests for their expenditures on navigation

improvements which they undertake prior to the approval and adoption

of a Corps project, unless specifically authorized by the Congress to
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do so (project proposals will not recommend such reimbursement). 

There are, however, certain general authorities under which local

interests may receive reimbursement for work they accomplish on a

Corps project after it is authorized (See paragraphs 8-6 and 12-26).

 f. Federal Assumption of Operation and Maintenance (O&M). 

Specific authorization by Congress is required to assume Federal

maintenance of channel improvements provided by others which extend

beyond the limits of the authorized project. Section 204(f) of WRDA

1986, as amended, as implemented by ER 1165-2-124, provides the basis

for the Federal assumption of maintenance of navigation (harbor)

projects constructed by non-Federal interests. Section 204(f)

generally provides that a non-Federal project must be approved by the

Secretary of the Army for Federal assumption of maintenance prior to

construction. In view of the provisions of Section 204(f) and in

recognition of budget constraints, the Corps of Engineers will no

longer seek authorization for Federal maintenance of existing nonFederal navigation projects. Only assumption of maintenance under the

provision of Section 204(f) will be considered. This policy does not

apply to the study of improvements (deepening or widening) of existing

non-Federal projects and recommendations for authorization for

construction of these improvements with subsequent Federal

maintenance.

12-2. Navigable Waters of the United States. Federal jurisdiction

over navigation extends to all navigable waters of the United States

(U.S.). The definition of "navigable waters of the U.S." is derived

from a history of judicial decisions and interpretations, along with

administrative determinations of the Corps and legislative actions

which may declare certain specific waters to be non-navigable (33

U.S.C., Chapter I). The Corps defines navigable waters as "...those

waters that are subject to the ebb and flow of the tide and/or are

presently used, or have been used in the past, or may be susceptible

for use to transport interstate or foreign commerce. Corps

jurisdiction is limited to lands below the ordinary high water mark in

non-tidal waters and land below the mean high tide line in tidal

waters. In non-tidal waters the extent of this jurisdiction is also

limited horizontally to the bed and bank of the navigable stream. A

determination of navigability, once made, applies laterally over the

entire surface of the waterbody, and is not extinguished by later

actions or events which impede or destroy navigable capacity." (33

CFR 329) The jurisdictional limits of Corps interest with respect to

navigation and with respect to other Corps regulatory responsibilities

are not consistent. (See paragraph 22-4)

12-3. National Economic Development (NED) Benefit Evaluation,

Navigation. Chapter II of the P&G contains NED benefit evaluation

procedures for specific types of projects. The relevant procedures

for navigation projects are: Section VI, Inland Navigation; Section

VII, Deep-Draft Navigation; Section VIII, Recreation; and, Section IX,

Commercial Fishing. The economic principles, legislation, and

policies to be considered in all navigation studies are summarized

below.

 a. Priority Outputs. In considering funding for studies and

project implementation, commercial navigation benefits are a priority

output, while recreation navigation benefits are not. By Act of 10

February 1932 (47 Stat. 42, 33 U.S.C. 541), Congress expanded the

definition of waterborne commerce to "include the use of waterways by
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seasonal passenger craft, yachts, house boats, fishing boats, motor

boats and other similar watercraft, whether or not operated for hire."

However, "waterborne commerce" is not exactly the same thing as

"commercial navigation" for priority output purposes. 

 b. NED Benefits. NED benefits are expressed in monetary

units. The conceptual basis for determining those values is

willingness to pay. Generally the costs of and return from commercial

activities are readily quantifiable. The benefits of commercial

navigation projects are (1) reduced cost of transportation through use

of vessels (modal shift), safer or more efficient operation of vessels

and use of larger and more efficient vessels (channel or lock

improvements), and use of new or alternate vessel routes (new channels

or port shift); (2) reduced cost or increased net return to producers

from new sources or markets (shift of origin or destination); and (3)

increased production through new or induced commodity movements

(industrial production) or greater production opportunity (commercial

fishing and offshore minerals). The benefits of recreation navigation

projects are reduced cost of recreation (usually delay cost or boat

damage cost avoided) and willingness to pay for recreation

experiences. 

 c. NED Costs. The requirement is to identify all costs, with

and without the considered navigation improvements. The facilities to

accommodate and service vessels or load and unload cargo or passengers 

usually required to achieve the navigation benefits are a non-Federal

responsibility. Their cost is an associated cost that must be

accounted for in the evaluation. The preferred accounting is as an

NED cost. Associated costs may be handled by the self-liquidating

cost concept. That is, facility costs are assumed liquidated by user

charges. The concept may be used only if estimated benefits are net

of the associated costs. Associated costs must always be shown. 

Pursuant to WRDA 1986, Federal user charges will be assessed for use

of certain waterways (fuel tax) and harbors (harbor maintenance tax),

and project sponsors may assess local user fees to recover their cost

share. These fees do not reduce the NED cost of the project. 

 d. Economic Justification. Economic justification is 

determined by comparison of NED benefits and costs. In addition to

NED, the P&G specifies three other accounts for evaluating effects,

one of which, regional economic development (RED), is also measured in

economic terms. Some or all benefits specific to a region may be at

the expense of other regions, and these are recognized as transfers. 

Such transfers result in no additional benefits contributory to

project justification from a national (NED) perspective. 

 e. Net NED Benefits. Reports should include information and

data for a number of alternative plans and plan scales sufficient to

satisfactorily define both the upper and lower portions of the net

benefits curve. So that the relationship between costs and benefits

is evident, either the total benefits and total cost curves or the

incremental benefits and incremental cost curves, shall be displayed. 

The relationship between costs and benefits thus determined and

displayed serves as the basis for comparisons of the efficiencies of

various plans, including the locally preferred plan if it differs from

the Federally supportable plan (NED plan or granted exception to the

NED plan). 

 

 f. Sensitivity and Risk Analyses. The P&G contain a general
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requirement to analyze risk and uncertainty (Chapter I) and specify

certain sensitivity analyses for inland and deep-draft navigation

(Chapter II). The general requirement is to identify all assumptions,

predicted variables, estimated values, and parameter values which are

critical to the report recommendation, and the value of each critical

factor where the recommendation would change or feasibility would be

questioned. The specific analyses which are or may be required

address assumptions as to traffic projections, rates or vessel

operating costs, and vessel fleet composition or characteristics. 

Waterway studies are also required to address modal shift, alternate

discount rates, and cost recovery fees. Whenever benefits are

dependent on the size and life of a resource, as in commercial

fishing, sensitivity analyses may be needed. 

 g. System Analysis. Systems analysis is required in almost

all navigation studies. The P&G emphasizes systems considerations and

requires evaluation of all reasonable alternatives. P&G procedures

specifically require system analysis for inland waterways, and the

requirement is implicit in the deep-draft requirement for multiport

analysis.

 h. Identification of Alternatives. The P&G have a general

requirement that all studies formulate and evaluate alternative

improvement plans; the aim is to provide a basis for determining the

completeness, effectiveness, acceptability, and especially the

efficiency of the recommended plan.

12-4. Priority Outputs, Cost Sharing, and Certain Kinds of Fishing

Activities. Certain types of fishing have been legislatively or

administratively defined as commercial fishing for project cost

sharing purposes. These may or may not be commercial navigation for

priority output purposes. These special cases are as follows:

 a. Charter Fishing Craft, Head Boats, and Similar

Recreation-Oriented Commercial Activities. Section 119 of the River

and Harbor Act of 1970 (Public Law 91-611), states, "The Chief of

Engineers, for the purpose of determining Federal and non-Federal

cost-sharing, relating to proposed construction of small-boat

navigation projects, shall consider charter fishing craft as

commercial vessels." This Act applies only to cost allocation and

cost apportionment and does not involve project formulation or

evaluation. Evaluation of charter fishing benefits must be based on

change in net income of the operator for commercial navigation

benefits to be claimed. This change in net income measure of benefits

is appropriate only for existing vessels using harbor facilities. 

Benefits may be evaluated in accordance with procedures for

recreational boats, but such benefits are then recreation benefits. A

combination of commercial and recreation benefits may apply if the

boat operator's income does not capture all increase in value of the

recreation opportunity.

 b. Subsistence Fishing. Subsistence fishing is not a high

priority output. When allocating costs, subsistence fishing is placed

in the commercial fishing category, however. Subsistence fishing is

defined as fishing activity carried out by those at or below the

minimum subsistence level to obtain food. The minimum subsistence

level is as defined by the Department of Commerce. The appropriate

evaluation procedure depends on site-specific conditions. The basic

requirement is to identify benefits based on willingness to pay. 
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Evaluation based on changes in net income is preferable since

subsistence fishing is not recreation. 

 c. Cruise Ships. Section 230 of WRDA 1996 directs the Corps of

Engineers to categorize all benefits generated by cruise ships as

commercial navigation benefits. Benefits of navigation improvements

affecting cruise ships arise from more efficient ship operations and

increased tourism or enhanced tourism experience. Prior to WRDA 1996,

efficiency improvement was classified as commercial navigation and

improved tourism was classified as recreation. Consistent with

Section 230 of WRDA 1996, economic benefits generated by cruise ships

are to be categorized as commercial navigation benefits for project

justification and cost sharing purposes. 

12-5. Cost Sharing and Project Cooperation for Navigation. For

waterway projects included within the definition of the "Inland

Waterway System," all requirements for project development are

Federal. Federal participation in other navigation projects, based on

the cost sharing provisions of WRDA 1986, as amended, is limited to

sharing costs for design and construction of the general navigation

features (GNF) consisting of breakwaters and jetties, entrance and

primary access channels, turning basins, anchorage areas, structures

designed to protect the channel from shoreline erosion, locks, and

land-based and aquatic dredged material disposal areas. Non-Federal

interests are responsible for and bear all costs for: provision of

the necessary lands, easements, rights-of-way, and relocations

(LERRs); and, local service facilities (LSF) such as terminal

facilities, dredging in berthing areas and interior access channels

thereto. They must agree to hold and save the United States free from

damages due to project construction and maintenance. For relocations

of utilities within the navigation servitude in projects greater than

45 feet (deep draft utility relocations), one-half of the cost of the

relocation shall be borne by the utility owner and one-half shall be

borne by the non-Federal sponsor. Non-Federal sponsors may also be

required to provide at least one public terminal open to the use of

all on equal terms and compel the removal of obstructions to the

project when they have the authority to compel the removal at owner

cost. Additional local cooperation may be required because of special

benefits such as land enhancement from placement of dredged material,

betterment in bridge changes, and special limited-interest facilities. 

 a. Studies. The cost sharing provisions of WRDA 1986 require

non-Federal participation (50 percent) in the costs for

preauthorization feasibility studies, except for studies of waterways

included within the definition of the "Inland Waterways System." 

Studies of waterways not so exempted (because not clearly included in

that definition), may be accomplished at 100 percent Federal cost if

approved, in each case, by HQUSACE, based on recommendations and

rationale submitted by the division commander. In any such instance,

the resulting feasibility report, based on the reasons accepted for

exempting the study from cost sharing, will recommend inclusion of the

waterway in the system subject to fuel tax. For cost shared studies,

the non-Federal share is to be paid during the period of study.

 b. Preconstruction Engineering and Design (PED). PED is cost

shared at the same percentage as applies to construction of the GNF. 

The Federal Government finances the non-Federal share, with

adjustments in funding arrangements for the first year of project

construction providing for non-Federal reimbursement.
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 Table 12-1, Non-Federal Share, Studies, PED 

Preconstruction Commercial Recreational Inland

 Work Navigation Navigation Waterways

Reconnaissance Study -0- -0- -0-

Feasibility Study 50% 50% -0-

PED --------(See Construction)---------

 c. Construction, Operation, and Maintenance. Sections 101,

102, and 103 of WRDA 1986, as amended, specify the cost sharing for

commercial harbor, inland waterway, and recreational navigation

projects, respectively.

 (1) Harbors. Section 101, as amended, requires the project

sponsor to bear a percentage share of harbor construction costs for

project components that are cost-shared (general navigation features,

mitigation), that varies according to the range of water depths where

the work is done (20 feet or less, greater than 20 feet but not in

excess of 45 feet, and greater than 45 feet). This variable cost

share is paid during construction. In addition, Section 101 requires

the sponsor to pay 10 percent of the construction costs that are

cost-shared, on completion of construction or over time with interest,

up to 30 years. Credit against this 10 percent contribution is

allowed for the value of lands, easements, rights-of-way, relocations,

and the non-Federal sponsor share of deep-draft utility relocations.

 (2) Waterways. Waterways that are determined to be "inland

waterways" for the purpose of Section 102 are exempt from cost

sharing, and construction and O&M are 100 percent Federal. Waterways

that are not "inland waterways" are cost shared as commercial or

recreational harbors depending on project purpose.

 

 (3) Recreation. Section 103 sets fixed percentages for the

non- Federal share of construction and O&M costs for recreation

projects (50 and 100 percent, respectively). These cost shares apply

to recreational navigation projects, and the joint and separable costs

allocated to recreation in other navigation projects.

Table 12-2, Non-Federal Share, Construction, Operation and Maintenance 

 

 Commercial Navigation

 (Cost Assignable to Project Depth:) Recreatn Inland

 to 20' >20' to 45' >45' Navigatn Waterways

 (to 6.10 (>6.10m to (>13.72m)

 meters(m)) 13.72m) 

Construction

GNF, incl Mit. 10%+10%1/ 25%+10%1/ 50%+10%1/ 50% -0-

Aids to Navigation -0- -0- -0- -0- -0-

LSF 100% 100% 100% 100% -0-

LERR 100% 100% 100% 100% -0-

Operation and

Maintenance

GNF, incl Mit. -0- -0- 50% 100% -0-

Aids to Navigation -0- -0- -0- -0- -0-

LSF 100% 100% 100% 100% 100%

 

1/ This additional 10% of GNF may be offset by creditable LERR.

12-6. Navigation Project for General Versus Restricted Interest.
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Section 2 of the River and Harbor Act of 5 June 1920 provides that the

Chief of Engineers in recommending navigation improvements shall make

a determination of the general versus the special interest in an

improvement, and recommend an appropriate sharing of costs between

Federal and non-Federal interests. The cost sharing prescribed by

WRDA 1986 will be the basis for such recommendations. The

determination of Federal interest requires consideration of the number

of properties served by a proposed project and/or project modification

and the types of ownerships of such properties.

 a. Single-Owner Situations. The Corps will not recommend any

Federal cost participation in construction or expansion of a Federal

navigation project (or any other type of Federal water resources

project) where the improvement would serve (for the forseeable future)

only property owned by a single individual, commercial/business

enterprise, corporation, or club or association with restrictive

membership requirements. This situation exists when restrictive

conditions of any sort afford a single property owner the exclusive

present and future enjoyment of the project benefits. A principal

example of opportunity for such exclusive enjoyment of benefits would 

be where one owner controls all the land giving access to the

improvement; single land ownership creates the possibility of the 

owner so structuring and constraining uses thereof that all net 

benefits of related improvements can be caused to devolve upon and be

reserved to the owner. Only economically justified improvements would

be recommended as a Federal project, and if the considered 

improvements are so justified the interest which would be solely

benefited should undertake them as a business expense. The Corps may

recommend Federal cost participation in the construction and expansion

of a Federal water resource development project where the project 

would serve only property owned publicly by a single state (including

the District of Columbia and territories and possessions of the United

States), county, municipality, or other duly appointed public entity. 

Table 12-3 summarizes single-owner situation policy for proceeding for

a variety of Federal project purposes and types of improvements. (ER

1165-2-123)

Table 12-3, General Policy for Proceeding with Proposed Projects (1)

In Single Owner Situations (2) 

 Ownership of Single Property Served

 Public(3) Private 

Federal Project Purpose and

 Types of Improvement Non-Federal Nonprofit For Profit

Flood Control

 Structural measures(4) Yes(5) No No

 Nonstructural measures(6) Yes(5) No(7) No(7) 

Storm Damage Yes(5)(9) No No 

Reduction(8)

Navigation Yes(10) Yes(11) No

Ecosystem Restoration Yes(12) N/A N/A

Emergency Streambank and Shoreline Yes Yes(13) No

Protection (Section 14 Authority)

______________________________________________________________________

(1a) Equally applicable to separable elements.

(1b) This table does not list other purposes such as municipal

and industrial (M&I) or agricultural (Ag) water supply,

hydropower, recreation or environmental enhancement, for which
EP 1165-2-1

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single-purpose Corps projects would not be recommended

single-owner issues could arise in connection with separable

elements for these purposes in multiple-purpose proposals only

to the extent that the non-Federal share of assigned costs is

less than 100 percent and then only in cases where the sponsor

is not a public entity.

(1c) Other than for work under the Section 14 authority, as

indicated, this table does not relate to Corps emergency

activities.

(2) Includes such things as trailer parks, apartment houses,

and industrial development sites wherein, although many

parties may have an interest, the lands involved are owned

by an individual, or by a single company, corporation, or

partnership. (Land is not considered to have

multiple ownership simply because it is titled in a

corporation with stockholders.) 

(3) This table does not apply to Federally-owned property or

facilities; Corps costs of improvements to Federally-owned

property are entirely (100 percent) reimbursable by the

Federal agency that owns the property.

(4) Measures which alter the flood regime.

(5) Proposed projects for flood control and storm damage reduction

that would protect public facilities which are separable

portions of larger protection plans must have such separable

portions presented separately in budget requests so that they

compete for new starts as reconnaissance studies and

construction projects.

(6) Measures which reduce or avoid flood damages without

significantly altering the nature or extent of flooding.

(7) Unless part of a larger plan for nonstructural measures (solely

or as an element of a combined structural-nonstructural project

proposal) which benefits multiple owners collectively.

(8) If benefits consist solely of land loss prevention (i.e.,

no buildings or facilities subject to damage), recommendations

for Federal participation will not be made regardless of number

of owners.

(9) May be recommended where formulated and justified in accordance

with policies applicable to hurricane and storm damage

reduction. 

(10) Includes ferry lines that are publicly owned and operated

(terminal and vessels).

(11) Unless multiple users (beneficiaries) have formed a

nonprofit cooperative to minimize facility costs.

(12) Such as cases where multiple users (beneficiaries) form a

non-profit cooperative to minimize facility costs. Fish

and wildlife habitat restoration projects are normally required

to be implemented on lands that either are, or become, public

(Federal and/or non-Federal) lands.

(13) Section 14 projects may protect private nonprofit facilities

such as hospitals and schools.

 b. Initial Single(Non-Public)- Owner, Later Multiple-Owner

Situations. Federal participation may be recommended in a significant

increment of improvement for navigation when the improvement would

initially serve property owned by a single individual,

commercial/business enterprise, corporation, or club or association

with restrictive membership requirements but a reasonable prospect

exists for the improvement to later serve multiple properties with

multiple owners. A significant increment is defined as one involving 
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major increases in project length, depth, or width. 

 (1) Basis for Recommendation. The test for reasonable

prospect is controlled by factors such as availability, ownership, and

suitability of adjacent waterfront land for development and location

by other industries and users; availability of land transport and

other essential services; the area's economic potential; intent of

land owner and/or the potential developer; and the determination that

no restrictive conditions exist that would prohibit the proposed

improvement from serving/benefiting two or more single-owner

properties (and property owners) in the forseeable future.

 (2) Special Cost Sharing. The project will be recommended for

development with cost sharing and other local cooperation in

accordance with regular requirements (i.e., as specified in WRDA

1986). There shall be a further requirement that, when the project is

in service, local interests shall contribute annually, until such time

as multiple properties/owners are served by the general navigation

facility, 50 percent of the annual charges for interest and

amortization of the Federal first cost of the improvement, exclusive

of aids to navigation, and 50 percent of operations and maintenance

costs solely associated with the improvement. The requirement for

annual contributions may end when the Secretary of the Army determines

that the improvement is actually serving/benefiting at least two

properties that are owned by at least two different owners.

 c. Progressive Development. The Federal interest is satisfied

and the regular cost sharing requirements apply where the improvement

serves/benefits two or more properties having different owners or one

publicly-owned property at the outset or if new properties/owners

would be served immediately after project completion. A principle of

progressive development also applies. Progressive development

includes nominal incremental extension "end of the line" situations

where part of the improvement is a last project increment serving the

last non-public property or property owner. The last 

property/property owner served may be "at the end" in terms of length,

depth, or width, necessitating some project investment in that service

alone. This is treated as a multiple-owner situation unless

disproportionate incremental investment is required.

 

12-7. Transfer and Lightering Facilities, Barge Fleeting Areas. NonFederal interests are responsible for provision of mooring facilities

for the convenience of individual users or that are associated with

localized operations. Facilities for the purpose of transfer of cargo

between vessels and barge fleeting areas are a non-Federal

responsibility. The Coast Guard sets regulations for lightering and

designates those areas set aside for that purpose. Barge fleeting

areas are defined as mooring areas or temporary anchorages used for

assembling tows; making barge transfers between tows; transferring

supplies; awaiting arrival of additional barges; or serving as a barge

holding area. Consideration will be given to providing barge mooring

at Federal cost when it can be demonstrated that such facility is

required and necessary for safe and efficient use of a Federal

navigation project. Examples would be provision of a mooring to

permit reshaping a tow for: (a) safe and efficient passage through a

navigaton lock; (b) safe passage through congested Federal channel

areas; or (c) safer passage crossing exposed waters. The advanced

approval of HQUSACE must be obtained before such facilities are

recommended at Federal cost. 
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12-10

12-8. Ownership of Lands Created for Port Facilities. Some

navigation project proposals include the filling of adjacent lands by

placement of the dredged material to provide lands suitable for

development of port facilities. Often development of these lands for

port use would be necessary to insure that the traffic used to justify

the navigation project would occur. It is the policy of the Corps of

Engineers that reports that include a proposal to fill lands for

development of port facilities shall also incorporate a local

cooperation requirement that the local sponsoring agency will retain

fee ownership of those lands for the economic life of the project. In

addition, local interests shall be required to regulate the use,

growth and development of harbor facilities and limit occupancy of the

subject created lands area to those industries whose activities are

dependent upon water transportation.

12-9. Development of Public Port or Industrial Facilities. Section

108 of Public Law 86-645 authorizes the Secretary of the Army

(notwithstanding the provisions of the Federal Property and

Administative Services Act of 1949, as amended, with respect to

disposal of surplus property) to convey land which is a part of a

water resources development project to a state, or other public body

for the purpose of developing or encouraging the development of public

port or industrial facilities. Only lands within a navigation project

are made available for this purpose. No action is initiated to sell

lands for these purposes until interest is indicated by an eligible

agency. Lands are sold at the fair market value upon a finding that

the development: (1) is in the public interest; (2) will not interfere

with the O&M of the project; and (3) will serve the objectives of the

project. (ER 405-1-12)

12-10. Aids to Navigation. The installation and maintenance of

primary navigation aids (buoys, lights, daymarks, regulatory signs) is

the responsibility of the U. S. Coast Guard, Department of

Transportation. The Coast Guard regulates all public and private aids

to navigation for uniformity and conformity with the "lateral system"

of buoyage as described in 33 CFR 60-79 (14 U.S.C. 89). 

 a. Funding. All costs for aids to navigation associated with

Federal navigation projects are borne by the Coast Guard; however,

estimated costs are included in calculations to determine project

benefit-cost ratios.

 b. Dredging Buoys. The Corps is responsible for temporary

navigation aids which are required for construction or maintenance

operations, such as dredging buoys and certain regulatory signs in the

vicinity of locks and dams. All Corps aids to navigation must conform

to Coast Guard standards. (ER 1130-2-520)

 c. Permit Requirements. The Corps has issued a nationwide

general permit for aids to navigation installed by or approved by the

Coast Guard (33 CFR 330.5(a)(11)).

12-11. Waterway User Charges.

 a. Fuel Tax. Section 202 of the Inland Waterways Revenue Act

of 1978 (Public Law 95-502) imposes an excise tax on fuel used by

certain commercial cargo vessels using specified inland or

intracoastal waterways of the United States. This law was amended 17

November 1986, by Section 1404 of WRDA 1986 (Public Law 99-662), 
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increasing the tax schedule and adding the Tennessee-Tombigbee

Waterway to the original list of taxable waterways. The Inland

Waterways Tax applies only to those segments of the inland waterways

specified in Section 206 of Public Law 95-502 as amended, and are

differentiated from coastal harbors, Great Lakes channels and harbors,

and deep-draft segments of certain inland rivers. The fuel tax

schedule became effective on 1 October 1980, at which time the tax was

4 cents per gallon increasing to 10 cents per gallon on 1 October 1985

on fuel used in commercial transportation on specified inland

waterways. WRDA 1986 established a new schedule:

 Before 1990....................10 cents per gallon.

 During 1990....................11 " " " 

 During 1991....................13 " " " 

 During 1992....................15 " " " 

 During 1993....................17 " " " 

 During 1994....................19 " " " 

 During 1995(and beyond)........20 " " " 

The Inland Waterways Fuel Tax does not apply to deep-draft (draft of

more than 14 feet) ocean-going vessels; passenger vessels; state or

local government vessels used in official business, movements of LASH

and SEABEE barges, or recreation craft. 

 b. Inland Waterways Trust Fund. Section 1405 of WRDA 1986

amended Sections 203 and 204 of Public Law 95-502 which originally

established the Inland Waterways Trust Fund (IWTF). Expenditures from

the fund may be made available, as provided by appropriation Acts, for

making construction and rehabilitation expenditures for navigation on

those Inland Waterways described in Section 206 of Public Law 95-502

as amended. It is the policy of the Corps that these projects be cost

shared 50 percent from the IWTF. It is the responsibility of the

Secretary of the Treasury to manage the trust fund and make money

available as authorized by law. The responsibility for administering

the Inland Waterways Fuel Tax is with the Internal Revenue Service

(IRS). Inquiries from outside the Corps should be referred to the

Legislation and Regulations Division, Office of the Chief Counsel, at

the Internal Revenue Service, Washington, D.C. 20224.

 c. Inland Waterways Users Board. Section 302 of WRDA 1986

established an Inland Waterways Users Board of eleven members,

representing both shippers and primary users, to be selected by the

Secretary of the Army. The Users Board is to make recommendations to

the Secretary regarding construction and rehabilitation priorities and

spending levels on the commercial navigational features and components

of the inland waterways and inland harbors of the United States. The

Users Board report is filed annually with the Secretary and with the

Congress, and is to make recommendations for the following fiscal

year. The first meeting of the Inland Waterways Users Board was held

on 15 July 1987. 

 d. Tolls. Effective October 1, 1994, tolls for the use of the

U.S. portion of the St. Lawrence Seaway were rescinded (Public Law

103-331).

 e. Harbor Maintenance Fee (HMF). Section 1401 and 1402 WRDA

of 1986 amended Chapter 36 of the Internal Revenue Code of 1954

(relating to certain other excise taxes) and imposed a fee on the use

of any port upon which has been made a Federal expenditure for 
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construction, maintenance, or operation since 1977. Although

legislated as a "tax" for enforcement purposes, the HMF is viewed by

the Administration as a fee to recover the costs of port and harbor

maintenance by the Corps of Engineers. In keeping with this view, the

implementing regulations have made "Federal expenditure" synonymous

with Corps of Engineer expenditure. The fee went into effect on 1

April 1987, and is administered by the U.S. Customs Service

(Department of the Treasury). The fee, 0.04 percent of the value of

the commercial cargo loaded or unloaded at a port subject to the fee,

was increased to 0.125 percent under Section 11214 of the Omnibus

Budget Reconciliation Act of 1990 (Public Law 101-580). The fee is

paid by the shipper in the case of exports and domestic ocean cargo,

and by the receiver in the case of imports. There are a number of

exemptions to the law, mostly pertaining to certain shipments to and

from Alaska, Hawaii, and U.S. possessions and the U.S. mainland. The

responsibility for administering the regulations is with the U.S.

Customs Service. Inquiries from outside the Corps should be referred

to the Director, Users Fee Task Force, U.S. Customs Service, 1301

Constitution Avenue N.W., Washington, D.C. 20229. The March 31, 1998

decision by the Supreme Court in U.S. Shoe Corporation vs. The United

States, found the HMF unconstitutional as applied to exports. 

Collection of the ad velorum tax on exports was halted on April 25,

1998 although collections continue on imports and domestic cargo.

 f. Harbor Maintenance Trust Fund. Section 1403 of WRDA 1986

established in the U.S. Treasury a trust fund to be known as the

Harbor Maintenance Trust Fund consisting of such amounts as may be

collected by the Harbor Maintenance Fee, transferred to the trust fund

by the St. Lawrence Seaway Development Corporation, or appropriated by

Congress. Section 210 of WRDA 1986 authorizes to be appropriated out

of the Harbor Maintenance Trust Fund such sums as may be necessary to

pay 100 percent of the eligible operations and maintenance costs of

the U.S. portion of the Saint Lawrence Seaway, and not more than 100

percent of the eligible O&M costs assigned to commercial navigation

of all harbors and inland harbors within the United States. The WRDA

1990 (Public Law 101-640) increased this authorization to 100 percent

of the eligible Corps of Engineers expenditures as well. The WRDA

1996 added the costs of construction of dredged material disposal

facilities for O&M of Federal navigation projects, the Federal O&M

costs of disposal facilities, dredging and disposal costs of

contaminated sediments in or affecting the maintenance of Federal

channels, and mitigating for the impact of Federal O&M activities as

eligible costs for the Harbor Maintenance Trust Fund.

 g. Port or Harbor Dues. Section 208 of WRDA 1986 permits

non-Federal sponsors of Federal navigation projects to recover the

non-Federal sponsor's share of the cost of construction, operation and

maintenance, and provisions for emergency response services. The

decision to levy dues, as well as establishment of the dues, is the

responsibility of the sponsor. There are some requirements and

restrictions on the dues that may be levied, and on what vessels are

subject to the dues. A process of public participation is required

prior to establishment of the schedule of dues. The non-Federal

sponsor must submit specific information, including the proposal for

collection of dues, to the Secretary of the Army. The Secretary must

then transmit the required information for publication in the Federal

Register. The role of the Secretary is to assure that the public

involvement process allows opportunity for public review and input. 

The responsibility of the Corps under Section 208 is to assure that 
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the schedule of dues is established in a manner which allows for

public input and comment. Assistance should be provided in meeting

the requirements for public involvement as specified in the Section

208 of WRDA 1986 in accordance with the following specific actions:

 (1) Review the material submitted by the sponsor in response

to Section 208(a)(5) to determine that the required information is

provided;

 (2) Submit the information for publication in the Federal

Register;

 (3) Coordinate with the sponsor to assure that the dates of

the required public meetings and dates for comments allow the

necessary time from the date of publication;

 (4) When the material is submitted to the Federal Register,

transmit draft letters for the signature of the Assistant Secretary of

the Army (Civil Works)(ASA(CW)), providing the same informtion as a

courtesy to the Comptroller General, the Secretary of the Treasury,

and the Federal Maritime Commission;

 (5) Keep on permanent file a copy of the dues schedule

established by the sponsor; and

 (6) Forward a copy of the schedule to HQUSACE and to the

Secretary of the Army.

 h. Definition of Rehabilitation for Inland Waterway Projects. 

The definition of major rehabilitation relating to inland and

intracoastal waterways of the United States is provided in Section 205

of WRDA 1992 and paragraph 11-3.

12-12. Navigation Data. The Navigation Data Center (NDC) located in

Alexandria, Virginia is responsible for the Federal water

transportation statistical programs including waterborne commerce,

domestic vessels, port and waterway facilities, lock characteristics

and operations and dredging.

 a. Waterborne Commerce Statistics.

 (1) NDC's Waterborne Commerce Statistics Center in New

Orleans, Louisiana collects waterborne commerce--passenger, tonnage

and vessel data--from domestic vessel operating companies engaged in

commercial waterborne commerce activity (33 CFR Part 207 and 33 U.S.C.

555). Foreign imports, exports, in-transit (commodities with origin

and destination outside of U.S.) and foreign vessel movements data are

collected by U.S. Customs and processed by the Bureau of the Census

for the Corps under interagency agreements of 1946, 1997 and 1998. 

U.S. Bureau of the Census processes imports and exports and the U.S.

Maritime Administration processes vessel movement data and merges

these with Census import and export data and Corps in-transit data to

create the historic U.S./Foreign Waterborne Transportation Statistics

per OMB’s 28 September 1998 directive. Archived statistical reports

are available from 1915 to present.

 (2) NDC is the responsible agency for compiling the Federal

data and disseminating both foreign and domestic waterborne statistics

for all U.S. waterborne transportation from water origin to water 
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destination and for each dock, waterway, channel and harbor in the

U.S. NDC may assess a civil penalty to domestic operators of $2,500

per reporting violation (i.e., failure of a vessel operating company

to report their waterborne commerce movements in a timely and accurate

manner). Violators are also liable to a fine of $5,000 and up to two

months imprisonment. Additionally the Corps may refuse service at

Corps locks to such violators. (ER 1130-2-520)

 (3) Release of Data: Detailed data furnished by vessel

operators and others will not be disclosed, except in compilation form

which will prevent identification of specific vessel operators or

operations. Corps policy on release is found in 33 CFR 209.320. 

Government employees are subject to the sanction in 18 U.S.C. 1905 for

unauthorized disclosures. Penalties may include imprisonment for not

more than one year, fine of not more than $1,000 and removal from

employment. Data released to other Corps, Federal, state and local

government agencies, private companies, and public are done in

accordance with the Freedom of Information Act (5 U.S.C. 552).

 b. Lock Performance Monitoring System and Lock

Characteristics. NDC compiles data for each Corps owned and/or

operated lock. Included are a locks physical properties (length,

depth over sill, width, type of gate, year opened, etc), its

performance under various physical conditions (ice, fog, flood and

accidents), and vessel traffic (lockage time, wait time, size of

vessel, number of recreational vessels, etc). Cargo and passenger

statistical data are obtained under the authority of 33 U.S.C. 554-

555. Data should not be released if it identifies any individual

vessel owner and related commerce. (ER 1130-2-520)

 c. Port and Waterway Facilities. NDC inventories cargo

handling, storage and transfer facilities at the nation's coastal,

Great Lakes and inland ports and waterways. Data also include

facility location, point of contact and identification of access roads

and railroads. Current data are available electronically and in hard

copy. Archived publications date to 1922. All data are in the public

domain.

 d. Dredging Statistics. NDC compiles data from each Corps

office pertaining to Government and contract dredging. Data includes

project, quantity, type of dredge, method of disposal, Government

estimates, bidders, and winning bid. All data are in the public

domain.

12-13. Navigation Regulations. Section 4 of the River and Harbor Act

of 1894, as amended (33 U.S.C.), authorizes the Corps to publish

regulations governing the use of navigable waters, except where

authority is specifically delegated to another Federal agency. 

Regulations for specific waterways and for locks and dams are

published in 33 CFR 207. Certain restricted areas are regulated in 33

CFR 334. The Coast Guard also regulates "restricted areas" in 33 CFR

165. The distinction between Corps and Coast Guard jurisdiction is

outlined in the memorandum of understanding between the two agencies

dated 7 May 1977 clarifying their respective responsibilities as a

result of enactment of the Ports and Waterways Safety Act of 1972

(Public Law 92-340). Restricted areas for hazardous waters at dams

and other Civil Works structures are defined in ER 1130-2-520. 

12-14. Danger Zones. Section 1 of the Army Appropriation Act of 1919 
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(33 U.S.C. 3) authorizes the Corps to establish danger zones and

regulate navigation in areas likely to be endangered by target

practice or other military operations. Regulations for specific

danger zones are published in 33 CFR 334. Danger zone regulations are

generally enforced by the military commander of the affecting command. 

12-15. Drift and Debris Removal. The term "drift" includes any

buoyant material that could cause damage to a commercial or

recreational vessel. The term "debris" includes any abandoned or

dilapidated structure or any partially sunken vessel or other object

that can reasonably be expected to collapse or otherwise enter

navigable waters as drift. Action by the Corps in removing drift or

debris from navigable waterways is generally limited to the removal

and disposal from the authorized project limits and immediate adjacent

waterway areas (where the material may be carried into the channel) in

the interest of general navigation. Drift collection is not

accomplished in the slips of piers and wharves. Material lying in the

shallow areas outside of the channels or along the shore is not

gathered.

 a. Existing Corps Projects. Specific and limited local

programs for continuing debris collection and disposal have been

authorized by Congress for New York, Baltimore, and Norfolk Harbors;

Potomac and Anacostia Rivers in the Washington, D.C. Metropolitan

area; and San Francisco Harbor and Bay, California. These

authorizations are on an individual basis, and the work is carried out

as authorized at each locality as a separate, distinct project.

 b. General Project Authorization. Section 202 of WRDA 1976

(Public Law 94-587) provides general authority for developing projects

for the collection and removal of drift and debris from publicly

maintained commercial boat harbors and from land and water areas

immediately adjacent thereto. The Federal participation in the cost

of any such project can be two-thirds of the cost of the project. 

Non-Federal interests are required to recover the full cost of drift

or debris removal from any identified owner of the source of drift or

debris and repair potential sources so that they no longer create a

potential source of drift or debris. Non-Federal interests must also

provide all needed land, easements and rights-of-way; hold and save

the United States free from damages which may result from the

sponsor's performance of, or failure to perform, any of its required

responsibilities, and regulate the project environs to prevent

creation of future sources of drift. Although WRDA 1976 provides

general authority for development of drift and debris removal

projects, Department of the Army does not currently support

authorization of, or budgeting for such projects.

12-16. Wreck Removal. Removal of sunken vessels, or other similar

obstructions is governed by Sections 15, 19, and 20 of the River and

Harbor Act of 1899, as amended. Primary responsibility for removal

belongs to the owner, operator, or lessee. If the obstruction is a

hazard to navigation and removal is not undertaken promptly and

diligently, the Corps may obtain a court judgment requiring removal,

or remove the wreck and seek reimbursement for the full cost of

removal and disposal. Determinations of hazard to navigation and

Federal marking/removal actions are coordinated with the Coast Guard

in accordance with the related memorandum of agreement between the two

agencies dated 16 October 1985. Removal and procedures are outlined

in 33 CFR 245. (ER 1130-2-520)
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12-17. Charts, Publications and Notices. The Corps publishes

navigation charts for the inland waterways, and various publications

containing navigational information and Federal regulations. Public

Law 85-480 authorizes publication and sale generally, and requires

that charges to the public for copies cover the cost of printing. (ER

1130-2-520)

12-18. Channel Condition Surveys. Every active waterway and harbor

project will be surveyed a minimum of once per year to determine the

condition of the channel used by navigation traffic. More frequent

surveys may be made if justified by rapid shoaling rates. District

and division commanders will then take necessary action to perform

maintenance dredging to the appropriate project depth based on a valid

economic analysis. (ER 1130-2-520)

12-19. Project Dimensions.

 a. Authorized Dimensions. The dimensions of proposed

features of improvement are set forth in preauthorization planning

reports and, when project authorization is referenced to such reports,

those dimensions constitute limitations with respect to the authorized

works. This includes depths, widths and lengths of channels, harbor

maneuvering areas and anchorages, lock sizes, horizontal and vertical

bridge clearances and lengths of breakwaters. Unless otherwise

provided in the project authorization, channel depths specified will

be construed as actual dredging limits (exclusive of overdepth

dredging) and not as the draft limit of vessels to be accommodated. 

In planning for initial development of authorized channels, channel

widths specified shall (in accordance with Section 5 of the 1915 River

and Harbor Act) be understood to admit of such increases at the

entrances, bends, sidings and turning places as necessary to allow for

the free movement of vessels. (ER 1130-2-520)

 

 b. Dimensions Maintained. Full authorized project dimensions

are maintained for Federal navigation projects where feasible and

justified. To avoid frequent redredging in order to maintain full

project depths, advance maintenance dredging is performed in critical,

fast shoaling areas to the extent that it would result in the least

overall cost. Such additional depth dredging is exclusive of and

beyond the allowable overdepth included to compensate for dredging

inaccuracies. In some waterways and harbors, the current needs of

navigation can be met by dredging the project channel or basin to less

than the authorized depth and/or width. If a temporary reduction in

width from that authorized is acceptable, removal of moderate shoaling

along channel lines is deferred until essential dredging in the

channel is undertaken. Only where known progressive shoaling along

channel lines is unduly restrictive to navigation will its removal be

undertaken prior to the normal scheduling of maintenance dredging. 

(ER 1130-2-520)

12-20. Dredged Material Disposal. In planning new navigation

projects prior to WRDA 1996 (on or before 12 October 1996), the policy

was to require non-Federal interests to provide without cost to the

United States all suitable areas required for initial and subsequent

disposal of dredged material and all necessary retaining dikes,

bulkheads and embankments therefor, or the costs of such retaining

works. Subsequent to WRDA 1996 (after 12 October 1996), land-based

and aquatic dredged material disposal facilities (DMDF) associated

with the construction and O&M of all Federal navigation harbors and 
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inland harbors (but not the inland navigation system including the

Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway) are

considered to be general navigation features (GNF) of a project and

subject to cost sharing (for both construction and O&M) in accordance

with procedures set forth in Section 101 of WRDA 1986.

 a. Maintenance Dredging Provisions of the Clean Water Act

(CWA) of 1977. Maintenance dredging efforts of the Corps are governed

by the environmental compliance requirements and procedures set forth

in 33 CFR 335-338. Section 404(t) of the CWA authorizes any state to

regulate, in accordance with its laws, the discharge of dredged

material in any portion of the navigable waters within the

jurisdiction of the state that results from maintenance dredging

involving Corps of Engineers navigation projects. District commanders

obtain state water quality certification, and a permit for disposal of

maintenance dredged material required by Section 404(t) unless the

state elects to waive these requirements. In cases where the project

authorization requires a local sponsor to provide disposal areas and

state or Federal requirements call for upland disposal, disposal areas

must be made available by the sponsor before dredging proceeds. On

projects where there are no local sponsor requirements to provide

disposal areas, and state requirements call for upland disposal and

Federal requirements do not, local or state assistance in providing

suitable disposal areas is sought. If such assistance is not

forthcoming, the increased project cost is evaluated with other

national maintenance requirements to determine the relative priority

of continuing maintenance dredging at that project. No maintenance

dredging is performed unless disposal activities are in full

compliance with state requirements unless a waiver from those

requirements is obtained pursuant to Section 404(t) and Section

511(a). Restrictions on ocean dumping have been imposed by the Marine

Protection, Research and Sanctuaries Act (MPRSA) of 1972 (see

subparagraph c, following).

 b. Land Creation or Enhancement at Inland Harbors. Federal

participation in inland waterway harbor improvements under the Civil

Works program is not warranted and shall not be recommended when (1)

resale or lease of lands used for disposal of excavated material can

recover the cost of the improvements or (2) the acquisition of land

outside the navigation servitude is necessary for construction of the

improvements and would permit local interest to control access to the

project. The latter case is assumed to exist where the proposed

improvement consists of a new channel cut into fast land.

 c. Land Creation at Harbors (Other Than Inland Harbors). 

Formulation and cost sharing of harbor projects that include land

creation benefits must be in accordance with the following procedures.

 (1) The NED Plan will be formulated using navigation benefits

exclusively (Land creation will not be considered in the net benefit

evaluation). Special cost sharing will be required for land creation

benefits associated with this NED Plan in proportion to the magnitude

of these benefits to the total benefits. The cost sharing formula by

which this policy is to be applied is as follows:

 (a) Assign LERR to non-Federal interests.

 (b) Special non-Federal cost sharing equal to:
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 Land Creation Benefits for this plan X (GNF Costs)

 Total Benefits for this Plan

 (c) Remaining GNF costs shared in accordance with Section 101

of WRDA 1996, as amended, as described in paragraph 12-6.c(1).

 (d) Provide full credit for this Plan's LERR toward the 10

percent requirement of Section 101(a)(2), as described in paragraph

12-6.c(1).

 (e) This computation establishes the maximum Federal share.

 (2) Non-Federal requests for modification of the NED Plan

formulated using navigation benefits may be allowed provided all

additional implementation costs are non-Federal and the incremental

navigation benefits equal or exceed the incremental O&M costs for the

GNF. No additional cost sharing will be required for the land

creation benefits associated with the project modifications beyond the

NED Plan which are requested and paid for by non-Federal interests. 

The modified NED plan may be recommended for authorization,

implementation, and maintenance. However, the recommendation should

be worded so as to provide the authority to construct the project

formulated for navigation only in the event the non-Federal sponsor

later decides to forego the requested modification. The cost sharing

formula by which this policy is to be applied is as follows:

 (a) The non-Federal share shall be the non-Federal costs

determined in paragraph c.(1)(a) above plus 100 percent of the

difference between the NED Plan and the cost of the requested modified

plan; or all costs not assigned to the Federal Government under

paragraph c.(2)(b) below, whichever is greater.

 (b) The Federal share shall be the Federal costs determined

in paragraph c.(1)(a) above; or, when the modified NED Plan results in

a cost for GNF that is less than the cost for GNF for the NED Plan,

the Federal share of costs will be limited to the Federal percentage

of the total GNF derived in paragraph c.(1) above times the cost of

the GNF for the modified NED Plan.

 (3) Reports proposing the creation of lands to be utilized

for development of port facilities required to accommodate projected

traffic shall require local interests to retain fee ownership of those

lands, and to regulate the use, growth and development on such lands

to those industries whose activities are dependent upon water

transportation. 

 d. Restriction on Ocean Disposal. Section 103 of the MPRSA

of 1972 (Public Law 92-532) states that, subject to certain

provisions, and after notification to the Administrator of the

Environmental Protection Agency, the Secretary of the Army "may issue

permits, after notice and opportunity for public hearings, for the

transportation of dredged material for the purpose of dumping it into

ocean waters, where the Secretary determines that the dumping will not

unreasonably degrade or endanger human health, welfare, or amenities,

or the marine environment, ecological systems, or economic

potentialities." Ocean disposal in connection with Federal dredging

projects may be authorized by the Secretary using the same procedure

required for issuance of permits (see paragraph 22-2.f).
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 e. Ecosystem Restoration Projects. Section 204 of WRDA 1992

(Public Law 102-580)authorizes the Secretary of the Army to carry out

projects for the protection, restoration, and creation of aquatic and

ecologically related habitats, including wetlands in connection with

dredging for construction, operation, or maintenance of an authorized

Federal navigation project. A non-Federal sponsor must agree to

provide 25 percent of the cost associated with the construction,

including provision of all lands, easements, rights-of-way, and

necessary relocations, and 100 percent of the operation, maintenance,

replacement, and rehabilitation costs.

12-21. Placement of Dredged Materials on Beaches. Section 145 of 

WRDA 1976 (Public Law 94-587) as amended by Section 933 of WRDA 1986

(Public Law 99-662) authorizes the Secretary of the Army, if requested

by a state, to "place on the beaches of such state beach-quality sand

which has been dredged in constructing or maintaining navigation

inlets and channels adjacent to such beaches if the Secretary deems

such action to be in the public interest and upon payment by such

state of 50 percent of the increased cost thereof above the cost for

alternative methods of disposing of such sand." The Corps will share

the additional costs with the state (50-50) only if the beneficial NED

outputs from placing the dredged material on a beach satisfactorily

meet economic justification and other priority criteria generally

applicable to all proposed Civil Works "new work" outlays. If those

criteria are not met and the state still desires that the material be

placed on state beaches, 100 percent of the additional costs involved

must be provided by non-Federal interests. When the initial state

request is received, a study, funded from available appropriations for

the navigation project to be dredged, must be performed to establish

the merit of so disposing of the dredged material and whether 50

percent of the additional costs should be Federally funded. If beach

disposal is ultimately agreed to, the study costs will be considered

to be part of the additional cost for such disposal. If 50 percent of

the costs are to be Federally funded, the remainder of such Federal

share will be funded from appropriations for the navigation project. 

The amounts attributable to the additional costs for beach disposal

will, however, be recorded separately from the other navigation

project costs--since navigation benefits do not justify them. If the

state requests, the Corps may enter into an agreement with a political

subdivision of the state to place the sand on the beaches of the

political subdivision, with the political subdivision responsible for

the additional costs of placement. Consideration must be given to the

schedule of a state, or political subdivision of a state, for

providing its share of funds for placing sand on its beaches, and, to

the maximum extent practicable, accommodation of such schedule. 

12-22. Advanced Maintenance Dredging. For the purpose of maintaining

projects, division commanders may approve advanced maintenance

dredging within authorized project limits to avoid frequent redredging

throughout the year. Such advanced maintenance (dredging to depths or

widths in excess of authorized project dimensions) can be performed in

critical, fast shoaling areas to the extent it will result in the

least overall cost. Project files must contain the written

justification and approvals for advanced maintenance. Such additional

dredging is exclusive of the allowable overdepth provided to

compensate for dredging inaccuracies. Advance maintenance dredging

shall not be used to provide channel dimensions for vessels that

exceed design limitations of the project. Overdepth dredging may also

be provided and maintained specifically for military requirements, as 
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12-20

authorized by Section 117 of the River and Harbor Act of 1968 (33

U.S.C. 562a). (ER 1130-2-520)

12-23. Lock and Dam Replacements. Section 4 of the River and Harbor

Act approved 5 July 1884 as amended by Section 6 of the River and

Harbor Act approved 3 March 1909 provides in part that whenever, in

the judgement of the Secretary of the Army, the condition of any of

the navigation works of the United States is such that its entire

reconstruction is absolutely essential to its efficient and economical

maintenance and operation, the reconstruction thereof may include such

modifications in plan and location as may be necessary to provide

adequate facilities for existing navigation: provided, that the

modifications are necessary to make the reconstructed work conform to

similar works previously authorized by Congress and forming a part of

the same improvement, and that such modifications shall be considered

and approved by the Chief of Engineers before the work of

reconstruction is commenced. Use of the 1909 authority will be for

essential repairs, rehabilitation, replacement, or reconstruction of

existing navigation structures which are required for continued use of

the project for authorized purposes and which do not change the

authorized project in scope, scale, or location. Also included under

the 1909 authority are measures to improve operational efficiency such

as modernization of operating equipment. The 1909 Act authority will

not be used where it is determined that the necessary reconstruction

work includes improvements, additions, or betterments which constitute

a change in project purpose, size, location, or increased capacity

beyond that obtainable from improved operational efficiency. In

recent years use of the 1909 Act authority has been rare. Extensive

repair work on existing projects has been accomplished as major

rehabilitation. Section 205 of WRDA 1992 (Public Law 102-580)

addresses the funding of major rehabilitation modifications to enhance

operating efficiency beyond the original project design.

12-24. Correction of Federal Navigation Project Induced Shore Damage. 

Section 111 of the River and Harbor Act of 1968 (Public Law 90-483) as

amended by Section 940 of WRDA 1986 (Public Law 99-662) provides

authority to "...investigate, study, plan and implement structural and

nonstructural measures for the prevention or mitigation of shore

damages attributable to Federal navigation works." This is subject to

requirement that a non-Federal public body agree to operate and

maintain the measures and, in the case of real property acquired in

conjunction with nonstructural measures, to operate and maintain the

property for public purposes in accordance with regulations prescribed

by the Corps. The costs for implementing measures under this

authority will be shared by non-Federal interests in the same

proportion as the costs for the project causing the shore damage were

so shared. (In the case of a navigation project comprised of a number

of authorized modifications, costs for Section 111 measures will be

cost shared in accordance with the cost sharing for the specific

modification or modifications to which the cause of shore damage can

be traced.) When adopted, the plan for Section 111 measures is

considered to constitute a modification to the related navigation

project. When the Federal share of the construction costs on this

basis for suitable mitigation measures would exceed $2 million (based

on bids, or Corps estimates prior to obtaining bids) the measures may

not be undertaken pursuant to the Section 111 authority; specific

congressional authorization is required in such circumstances. The

Section 111 authority applies to both public and privately owned

shores located along the coastal and Great Lakes shorelines damaged by 
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12-21

Federal navigation projects. Exercise of the Section 111 authority to

provide mitigation measures with the authorized Federal cost sharing

is not mandatory. Normally, the degree of the mitigation is the

reduction of erosion or accretion to the level which would prevail

without the influence of navigation works at the time navigation works

were accepted as a Federal responsibility. It is not intended that

shorelines be restored to historic dimensions, but only to lessen the

existing shore damage or prevent subsequent damages by action based on

sound engineering and economic principles when equitable and in the

public interest. This authority is not utilized to construct,

maintain, modify or change an authorized shore protection project or

an authorized shore damage mitigation element of a navigation project,

or for river bank erosion or vessel-generated wave wash damage. (ER

1105-2-100)

12-25. Federal Project Development by Others. WRDA 1986 (Public Law

99-662) includes special provisions under which non-Federal interests

may undertake work on a navigation project, both study and

construction, for which they may obtain either credit (study), 

reimbursement (construction), or Federal assumption of O&M.

 a. Study. Section 203 of WRDA 1986 permits a non-Federal

interest to undertake a study of a harbor or inland harbor improvement

for the purpose of getting the work authorized by Congress. The study

is submitted to the Secretary of the Army, who transmits it to

Congress, with recommendations, within 180 days of receipt from the

non-Federal interests. If the proposed work becomes an authorized

Federal project, a portion of the non-Federal study costs (the

equivalent of the Federal share of study costs had the study been

accomplished by the Corps) will be credited against the local share of

the costs of construction, as the project is built. (ER 1165-2-122)

 b. Construction. The authority for non-Federal construction

of harbor and inland harbor projects by non-Federal interests is

contained in Section 204 of WRDA 1986, as amended, in Sections 204(a)

through (g). 

 (1) Section 204(a). This subsection authorizes a non-Federal

interest to undertake navigational improvements in harbors or inland

harbors. Projects constructed under this subsection are not

considered to be Federal projects unless the Federal Government later

assumes responsibility for O&M after project construction is completed

pursuant to subsection 204(f) (See paragraph 1.f.). For any project

constructed in accordance with subsection 204(a), the non-Federal

interest is fully responsible for all construction costs incurred and

for obtaining all necessary permits. (ER 1165-2-124) 

 (2) Section 204(b). This subsection allows the non-Federal

interest to contract with the Corps of Engineers to have the Corps

undertake studies and engineering for projects which the non-Federal

interest will construct under subsection 204(a). The studies,

conducted at the expense of the non-Federal interest, can be used

(under subsection 204(d), in addressing the requirements for obtaining

the appropriate permits required under the Secretary's authority as

well as support for a request for Federal O&M under subsection 204(f). 

(ER 1165-2-124)

 (3) Section 204(c). This permits the Corps to turn over to

non-Federal interests Corps studies initiated before 17 November 1986 
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12-22

(either finished or unfinished), so that the study information may be

used in the permitting process. If the transferred Corps study is

complete, it can be used (under subsection 204(d) in addressing the

requirements for obtaining the appropriate permits required under the

Secretary's authority as well as support for a request for Federal O&M

under subsection 204(g). (ER 1165-2-124)

 (4) Section 204(d). This subsection states that if the Corps

of Engineers has completed a study and engineering for an improvement

to a harbor, including the filing of a Final Environmental Impact

Statement, and the non-Federal interest has requested and received

such study and engineering from the Secretary pursuant to subsection

(b) or (c) of Section 204, the non-Federal interest is authorized to

carry out the improvement. Any improvement implemented in accordance

with subsection (d) of Section 204 shall be deemed to satisfy the

requirements for obtaining the appropriate permits required under the

Secretary's authority, subject to a finding that (1) the applicable

regulatory criteria and procedures have been satisfied and that (2)

regulatory requirements and environmental conditions have not changed

since the studies were completed. This provision only applies to

satisfying the permits under the Secretary's authority. (ER 1165-2-

124)

 (5) Section 204(e). Section 204(e)(Reimbursement) of WRDA

1986 permits a non-Federal interest to construct an authorized Federal

project improvement with subsequent reimbursement for the Federal

share of project costs. In order to qualify for reimbursement, the

proposed work must be construction of a project specifically

authorized by Congress or be a separable element of such a project

(Section 204(e)(Reimbursement) is not applicable to projects

undertaken under the continuing authority program). It must be

primarily for the benefit of commercial navigation and must currently

satisfy the same economic and environmental criteria that would be

applied for Federal implementation. Since construction responsibility

will rest with the non-Federal interests, all Federal and non-Federal

permits must be obtained. The Corps must approve the plans of

construction and monitor the project as it is being built. Only work

started after an agreement is reached between ASA(CW) and the

non-Federal interests is eligible for reimbursement. No reimbursement

shall made unless and until the ASA(CW) has certified that the work

for which reimbursement is requested is complete and has been

performed in accordance with applicable permits and the approved

plans. However, ASA(CW) certification can be made upon completion of

physical construction, even if there are claims outstanding. The

amount eligible for reimbursement will be limited to the cost of

completed construction, including all settled claims at the time of

certification. Unsettled claims would be a non-Federal

responsibility. (ER 1165-2-120)

 (6) Section 204(f). This subsection allows the Secretary to

approve as many as two proposals whereby a non-Federal interest would

undertake all or part of an authorized Federal project as the agent of

the Secretary by utilizing its own personnel or by procuring outside

services, so long as the costs of doing so will not exceed the cost of

the Secretary undertaking the project. (ER 1165-2-124)

 c. Construction Authority Applicable to Navigation. The Corps

regulations implementing both Section 204(e)(Reimbursement) of WRDA

1986 and Section 215 of the Flood Control Act of 1968, which provides 
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12-23

general authority for credit or reimbursement of limited non-Federal

construction work on congressionally authorized water resources

development projects of all kinds (paragraph 8-6), have much in

common. As it is the most recent legislation, and the one that

specifically makes provision for non-Federal construction of a

complete or separable element of a Federal navigation project, the

Section 204(e) (Reimbursement) authority is considered the one

applicable to non-Federal navigation works of such scope. Hence, for

any item of proposed non-Federal construction that would constitute

complete construction of a Federal navigation project or a separable

element thereof, provision for credit or reimbursement of non-Federal

interests for the Federal share of project costs will generally be

considered only under the Section 204(e)(Reimbursement) authority. 

For non-Federal navigation works of similar scope undertaken pursuant

to Section 215, agreements will ordinarily provide that only credit

against the non-Federal share of future project costs will be

afforded.

 d. Federal Assumption of O&M. Section 204(e)(O&M) of WRDA

1986 gives the Secretary of the Army responsibility for O&M of any

project constructed by non-Federal interests under Section 204(a),

Section 204(d), or Section 204(e)(Reimbursement) of WRDA 86, provided

that before construction, the Secretary determines that the proposed

work is economically justified and environmentally acceptable. The

Secretary must also certify that the work has been completed in

accordance with applicable permits and acceptable design standards. 

Further guidance on Section 204(e)(O&M) is provided in ER 1165-2-124. 

Federal O&M responsibilities for authorized Federal projects subject

to Section 204(e)(Reimbursement) are addressed in ER 1165-2-120.

12-26. Navigation versus Hurricane and Storm Damage Reduction (HSDR). 

Measures which contribute to the increase in net income of commercial

navigation activities or result in a decrease in commercial

transportation costs will be evaluated and cost shared as navigation

(harbor) measures. This includes measures to prevent wave induced

damages to commercial vessels while berthed at docks, piers, and

slips, and that incidentally prevent wave induced damages to the

commercial docks, piers, and slips. Measures to prevent wave induced

damages to non-commercial (recreational) vessels while berthed at

docks, piers, or slips and measures to prevent wave induced damages to

docks, piers, slips and other shoreline facilities, are to be

evaluated and cost shared under the HSDR provisions of Sections

103(c)(5) and 103(j) of WRDA 1986. Measures to provide for safe and

efficient movement of commercial and recreational vessels into and

within a harbor and measures to prevent loss and damage to vessels in

transit will continue to be evaluated and cost shared as navigation

(harbor) measures. This policy does not provide any Federal interest

in the construction of docks, terminal or transfer facilities, or

berthing areas.

 a. Application of Policy for Harbors. The above policy

applies to existing berthed vessels and shoreline facilities and to

vessels and facilities that would exist in the future without-project

condition at the project or an alternate location. For vessels that

would not be present at any location in the without-project condition,

but would be present in the future as a result of the project,

benefits are only evaluated as commercial or recreational navigation

benefits, as appropriate.
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12-24

 b. Application of Policy for Multiple Purpose Facilities. 

Where measures are formulated to serve both HSDR and navigation, an

allocation of multiple purpose joint costs must be made and the joint

costs shared in accordance with the purpose to which they are

allocated along with any specific costs for features which serve only

one purpose. This cost allocation must include operation,

maintenance, repair, replacement, and rehabilitation responsibility

under the HSDR purpose. No cost allocation is required where a

measure is formulated to serve a single purpose but results in

incidental benefits, provided that the single purpose feature

maximizes net benefits. For example, a breakwater formulated to

provide HSDR, which is part of a NED plan, may produce incidental

navigation benefits but would be cost shared as an HSDR feature. 

Conversely, a breakwater formulated to provide reductions in

transportation costs and/or increased net income to commercial

navigation activities may produce incidental HSDR benefits but would

be cost shared as a navigation feature. 
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CHAPTER 13

FLOOD DAMAGE REDUCTION

13-1. The Federal Interest. Congress, in the Flood Control Act of

1936, established as a nationwide policy that flood control (i.e.,

flood damage reduction) on navigable waters or their tributaries is in

the interest of the general public welfare and is therefore a proper

activity of the Federal Government in cooperation with the states and

local entities. The 1936 Act, as amended, and more recently the Water

Resources Development Act (WRDA) of 1986, specify the details of

Federal participation. They have established the scope of the Federal

interest to include consideration of all alternatives in controlling

flood waters, reducing the susceptibility of property to flood damage,

and relieving human and financial losses. 

13-2. Flood Plain Management. Flood plain management (FPM) is a

continuing process, involving both Federal and non-Federal action,

that seeks a balance between use and environmental quality in the

management of the inland and coastal flood plains as components of the

larger human communities. The flood damage reduction aspects of flood

plain management involve modifying floods and modifying the

susceptibility of property to flood damages. The former embraces the

physical measures commonly called "flood control;" the latter includes

regulatory and other measures intended to reduce damages by means

other than modifying flood waters. By guiding flood plain land use

and development, flood plain regulations seek to reduce future

susceptibility to flood hazards and damages consistent with the risk

involved and serve in many cases to preserve and protect natural flood

plain values.

 a. Flood Plain Management Services. The Corps is authorized

by Section 206 of the Flood Control Act of 1960, as amended, to

provide information, technical planning assistance, and guidance to

aid states, local governments, and Indian Tribes in identifying the

magnitude and extent of the flood hazard and in planning wise use of

the flood plains. Direct response and assistance of this kind are

provided upon request through the Flood Plain Management Services

Program. The Corps also provides support for the National Flood

Insurance Program to the Federal Emergency Management Agency on a

reimbursable basis under interagency agreement. (ER 1105-2-100)

 b. Executive Order (EO) 11988. This EO requires the Corps to

provide leadership and take action to: (1) avoid development in the

base (100-year) flood plain unless it is the only practicable

alternative; (2) reduce the hazards and risk associated with floods;

(3) minimize the impact of floods on human safety, health and welfare;

and (4) restore and preserve the natural and beneficial values of the

base flood plain. In this regard, the policy of the Corps is to

formulate projects which, to the extent possible, avoid or minimize

adverse impacts associated with use of the base flood plain and avoid

inducing development in the base flood plain unless there is no

practicable alternative for the development. (ER 1165-2-26)

 c. Modification of Federal Facilities. In planning or

modifying Federal facilities on flood plains and in disposing of

Federal lands and property, the Corps will follow the Flood Plain

Management Guidelines (43 FR 6030), 10 February 1978, issued by the

Water Resources Council pursuant to EO 11988.
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13-2

13-3. Flood Related Planning Policy. It is the policy of the Corps

of Engineers to consider in the planning process all practicable and

relevant alternatives applicable to flood damage reduction. No one

alternative will be pre-judged superior to any other. Consideration

will be given both to measures intended to modify flood behavior

(structural measures) and those intended to modify damage

susceptibility by altering the ways in which people would otherwise

occupy and use flood plain lands and waters (nonstructural measures). 

The fundamental goal is to develop, define and recommend a robust

solution that has public and institutional support (having

appropriately determined how well an economical plan can be made to

function, how capable are the responsible interests to operate and

maintain it, and how safe will be the people who will depend on it). 

(ER 1105-2-100)

 a. Structural Measures. These include dams and reservoirs,

levees, walls, diversion channels, bridge modifications, channel

alterations, pumping, and land treatment. All such measures reduce

the frequency of damaging overflows.

 b. Nonstructural Measures. These include flood warning and

preparedness; temporary or permanent evacuation and relocation; land

use regulations including floodway delineation, flood plain zoning,

subdivision regulations and building codes; flood proofing; area

renewal policies; and conversion to open space.

13-4. Design Flood Criteria. The Corps policy in design of flood

damage reduction projects is to provide an optimum degree of

protection consistent with safety of life and property. The Corps

seeks an economically efficient degree of protection and land use in

agricultural areas, and acceptable reduction of risks and preservation

of environmental values in protecting other rural and urban areas. 

Definitions for certain significant storms and floods, and for terms

that relate flood magnitude to project performance, have been adopted

as follows: 

 a. Standard Project Storm (SPS). The SPS is a hypothetical

storm having the most severe flood-producing rainfall depth-areaduration relationship and areal distribution pattern that is

considered reasonably characteristic of the region in which the

drainage area is located. It is developed by studying the major storm

events in the region, excluding the most extreme. Development of the

SPS may involve transposition and adjustment of a large storm from its

observed location to the locality of concern (EM 1110-2-1411). When

that is the case, studies are to be coordinated through CECW-EH for

review by the Hydrometeorological Section of NWS.

 b. Standard Project Flood (SPF). The SPF is the discharge

hydrograph resulting from the SPS. SPF for projects east of the 105th

meridian may be developed using EM 1110-2-1411. For projects located

west of the 105th meridian, use 50 percent of the Probable Maximum

Flood (PMF) for SPF.

 c. Probable Maximum Precipitation (PMP). Theoretically, the

PMP is the greatest depth of precipitation for a given duration that

is physically possible over a given size storm area at a particular

geographical location during a certain time of the year. Development

of the PMP considers all storms of record and the observed

precipitation is increased by maximizing the moisture inflows to the

storm system. Generalized depth-area-duration and seasonal 
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relationships for the continental U.S. are published by the National

Weather Service in a series of hyrometeorological reports .

 d. Probable Maximum Flood (PMF). The PMF is the flood that

may be expected from the most severe combination of critical

meteorologic and hydrologic conditions that are reasonably possible in

the drainage basin under study. A PMF is developed from PMP. 

Assumptions concerning rainfall losses, snowmelt runoff, channel

efficiency, etc. are adjusted to produce the largest flood reasonably

possible. The PMF is used to design high hazard structures (top of

dam, outlet and spillway capacities) where failure cannot be

tolerated.

 e. Inflow Design Flood (IDF). The IDF for a dam is the flood

hydrograph used in the design or evaluation of a dam and its

appurtenant works (ER 1110-8-2(FR)). In some older documents, this

may be referred to as the spillway design flood. The upper limit of

the IDF is the PMF.

 f. Project Performance. The analysis will quantify the

project reliability and performance by explicitly incorporating the

uncertainties associated with key hydrologic, hydraulic, and other

engineering variables. This reliability and performance will be

reported as the protection for a target percent chance exceedance

flood with a specified reliability. For example, the proposed project

is expected to contain the one-half percent (0.5 percent) chance

exceedance flood, should it occur, with a ninety percent (90%)

reliability. This performance may also be described in terms of the

percent chance of containing a specific historic flood should it

occur. To fully define how a project is expected to function requires

describing project impacts at several flood levels and locations. 

There is no minimum level of performance or reliability required for

Corps projects; therefore, any project increments beyond the NED plan

represents explicit risk management options. It is, therefore, vital

that all participants understand the performance, reliability and

costs of the NED plan, as well as, increments and decrements of the

plan, in order to fully participate in an informed decision-making

process.

13-5. Risk-Based Analysis. The risk-based analysis framework is

defined as an approach to evaluation and decision making that

explicitly, and to the extent practical, analytically, incorporates

considerations of risk and uncertainty. These risks and uncertainties

arise from measurement errors, short data records, and from the innate

variability of complex physical, social, and economic situations,

particularly those dealing with future occurrences. Because it

captures and quantifies the extent of the risk and uncertainty in the

various planning and design components of an investment project, this

approach has been found very useful. Each of the components can be

examined and conscious decisions made reflecting an explicit tradeoff

between risk and costs. Risk-based analysis can identify which plans

are more robust and can be used to compare plans in terms of their

likely physical performance and economic success. 

13-6. Structural Measures. Different types of structural flood

damage reduction measures have different primary and secondary impacts

on flooding. Plan formulation and impact assessment should take into

account all impacts, and residual flooding from all sources. (The

dominant flooding may be from a different source under without and

with project conditions.) In project planning, both the primary

beneficial effects and the secondary effects of the alternatives must

be borne in mind and appopriately accommodated.
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 a. Reservoirs. Reservoirs regulate floods downstream from the

dam by temporarily storing some part of the flood volume and releasing

it later. The impact downstream is to lower flood stages, increase

the duration of flooding, and shift the flood to a later time. It is

normal for dam and reservoir projects to effect some control on, and

lower flood stages for, all magnitudes of floods. This is especially

true of dams with ungated spillways. The amount of control and

effectiveness will, however, decrease when flood volumes exceed the

storage reserved for flood control. For the large flood, dams with

gated spillways may exert lesser control on downstream flood stages

than comparable ungated dams. Reservoir releases downstream can raise

groundwater levels in fields adjacent (and even more distant) to the

river and rapid change in stages can exacerbate bank caving. 

Downstream of dams, uncontrolled tributaries will continue to

contribute to flooding, causing stage reductions to become less and

less farther downstream. (Tributary flooding may then assume

increased significance.) Channel capacities downstream of dams may

increase over time; however, farther downstream, especially below a

tributary carrying heavy sediment loads, channel capacity may be

reduced. (Reservoir regulation tends to shift channel rating curves

upward--less flow at a given stage--especially upstream of

tributaries.) Upstream of a dam, sediment deposition can be expected

to occur mostly in upper pool areas, decreasing the flood control

effectiveness over time and raising flood stages and ground water

levels around the pool. 

 b. Channel Enlargements. Channel enlargement will act like a

negative reservoir, raising flood stages downstream, shortening flood

durations and shifting the flood to an earlier time. Flood stages

will be lower in the enlarged channel reach for all floods including

those exceeding the channel capacity, if the channel is not

excessively long. (Long, oversize channels may have increased flood

stages in the lower part of the channel.) With main stem flooding

reduced, direct overbank flooding from tributaries may assume

increased significance. How flows from upstream and from tributaries

are collected, controlled, and transitioned into the enlarged channel

can greatly influence the project's beneficial impacts. Some control

is generally required to direct overbank flow into the channel. 

Erosion and considerable attendant damage may occur upstream of the

enlarged channel unless there is appropriate hydraulic control; the

same applies where tributaries enter. All artificially enlarged

channels will tend toward a new equilibrium state where sediment

inflow and carrying capacity are in balance; the trend may be to a

smaller or larger channel than the one constructed. Whatever the

trend, it may be so slow as to be hardly noticeable, may occur at some

intermediate rate, or may take place suddenly with one dramatic large

flood. 

 c. Levees and Floodwalls. Levees and floodwalls are

constructed to exclude flood waters from the protected area, up to a

certain magnitude of flood. Unlike reservoirs and channel

enlargements, the flood control effectiveness of a levee or floodwall

will cease abrubtly if a flood should overtop it. Interior runoff

impeded by the structure may cause interior flooding if there are not

proper provisions for interim storage behind it or discharge past the

barrier. Potential effects outside a levee, upstream and downstream,

are too complex and too site dependent to generalize otherwise, but

generally the constriction of flow area caused by the structure will

raise flood stages upstream. Within the levee reach, flood stages may

be increased or decreased depending on whether the structure forms a

hydraulically long or short constriction. A levee may reduce valley 
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13-5

storage enough to cause the same impacts downstream as a channel. 

13-7. Nonstructural Measures. Section 73 of Public Law 93-251

expresses Congressional policy and, in effect, endorses Corps practice

that consideration shall be given to nonstructural measures in the

planning and formulation of all flood damage reduction plans. 

Nonstructural measures are defined as those which reduce or avoid

flood damages, without significantly altering the nature or extent of

flooding, by changing the use made of flood plains or accommodating

existing uses to the flood hazard. Examples of nonstructural measures

are flood proofing, flood warning/preparedness, temporary or permanent

evacuation, and regulation of flood plains. These measures are

considered separately, in combination and as incremental elements of

plans which may include structural measures also. Economic

justification can be based on combined flood damage reduction and

other (e.g., recreational) benefits. Nonstructural plans should be

formulated without preconception as to what would constitute an

acceptable minimum level of protection. The level of protection may

vary in order to achieve a more coherent and cohesive plan. The level

of protection is a Corps decision; individual owners may decide

whether to participate. Plans that would leave occupied buildings

inaccessible during a flood are normally not recommended. The

separable costs allocated to recreation and fish and wildlife shall

not exceed the costs for flood damage reduction. 

13-8. Definition of the Flood Control Plan. The Federal flood

control project is comprised of two obvious elements: the physical

aspects of improvement recommended and the associated requirements of

local cooperation. The intended flood control plan (i.e., the outputs

from the Federal project) may, however, be dependent upon other

elements as well. The assumptions made about how the Federal project

improvements will function may depend upon other assumptions about the

continued effectiveness of already existing non-Federal developments

that shape or control flows (whether specifically intended for flood

control, or not). They may reflect the assumed existence of other

non-Federal developments planned but not yet in place. It is critical

that the non-Federal sponsor, responsible for operation and

maintenance (O&M) of the Federal project, understand the importance of

all the elements that go together to make the plan function. A

complete description of a plan includes all structural, nonstructural,

legal, and institutional features, both proposed and existing, that

contribute to the intended flood control outputs. The outputs of the

plan, and of individual elements if they have separable outputs,

should be quantified in understandable physical, economic and

environmental terms. The operating requirements should be developed

for each element requiring operation (e.g., statement of the trigger

that will say it is time to close a gate and the amount of time it

will take to close it). Finally, there should be explication of the

overall resources required to operate and maintain the plan, i.e.,

manpower, equipment, cost. The requirement for definition of the plan

in these terms begins in the preauthorization feasibility phase and

ends with preparation of the O&M manual furnished to the non-Federal

sponsor when the project is turned over (See paragraphs 10-12,

11-2.c).

 

13-9. Drainage. Section 2 of the Flood Control Act of 1944 redefined

flood control to include "channel and major drainage improvements." 

Section 403 of WRDA 1986 modified this by inserting after "drainage

improvements" the following: "and flood prevention improvements for

protection from groundwater-induced damages."

 
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 a. Major Outlets. Legislative recognition that the provision

of major drainage outlets is an essential part of and complement to

flood damage reduction improvements, is interpreted to permit major

drainage improvements of natural waterways and their tributaries, and

of existing artificial waterways. Major outlets are designated as

those for the drainage from an organized or contemplated drainage

district, groups of drainage districts, or local governmental unit

such as county, town, or city. Normally, the Federal project for an

outlet drainage channel will consist of works in a natural stream or

existing artificial waterway. However, new artificial drainage

channels may be constructed under the Federal program wherever that

procedure would be technically more effective, environmentally sound,

and would be more economical than improvement of existing drainage

courses. (The costs of major drainage outlets are included with

costs for other project flood control elements and cost shared

accordingly.)

 b. Agricultural. In agricultural areas, collection of

drainage water is considered a local responsibility. This includes

such work as ditching, diking, and grading on farms and within local

drainage districts or governmental units. Federal outlets works may

"tie" into such local works.

 c. Urban. Flood damage reduction works in urban areas are the

adjustments in land use and the facilities designed to reduce flood

damages in urban areas from overflow or backwater due to major storms

and snowmelt. They include structural and other engineering

modifications to natural streams or to previously modified natural

waterways. In urban or urbanizing areas, provision of a basic

drainage system to collect and convey the local runoff to a stream is

a non-Federal responsibility. Water damage problems may be addressed

under the flood control authorities downstream from the point where

the flood discharge is greater than 800 cubic feet per second for the

10 percent flood (one chance in ten of being exceeded in any given

year) under conditions expected to prevail during the period of

analysis. Drainage areas of less than 1.5 square miles shall be

assumed to lack adequate discharge to meet the above criterion. 

Exceptions may be granted in areas of hydrologic disparity producing

limited discharges for the 10 percent flood but in excess of 1800 cfs

for the one percent flood. (ER 1165-2-21)

 d. Groundwater. Section 403 of WRDA 1986 defines flood control

to include measures for the prevention of groundwater-induced damages. 

Study and analysis of this expanded definition of flood control has

not produced a satisfactory classification system for defining Corps

interest in a groundwater-induced damage prevention program. 

Accordingly, budget and authorization support is not available at this

time for a generic program of groundwater-induced damage prevention. 

Individual cases involving urban groundwater-induced flooding believed

to have merit within the general context of traditional flood damage

reduction should be referred to CECW-P prior to implying any Corps

interest to potential sponsors. 

13-10. Project Cooperation and Cost Sharing. WRDA 1986, superseding

previous legislative provisions, and as amended by WRDA 1996,

established the basic requirements for non-Federal participation in

Federal flood damage reduction projects. Separable costs of

recreation features included in structural and nonstructural flood

damage reduction projects are cost shared 50-percent Federal/50-

percent non-Federal.
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 a. Structural Measures. For structural projects (or

structural components of a project combining both structual and

nonstructural elements) non-Federal interests must:

 (1) Provide a cash contribution equal to 5 percent of total

project costs;

 (2) Provide all lands, easements, rights-of-way, relocations

(except alterations to railroad bridges and approaches thereto

including constructing new railroad bridges over flood control

channels constructed in fast lands or new channel alignments which are

assigned as construction costs), and dredged material disposal areas

(referred to as LERRD);

 (3) Provide an additional cash payment when the sum of items

(1) and (2) is less than 25 percent of total project costs (35 percent

for projects authorized, or reauthorized after formal deauthorization,

after 12 October 1996) (if the sum of items (1) and (2) should exceed

50 percent of total project costs, local contributions in excess of 50

percent will be reimbursed by the Federal Government);

 (4) Operate, maintain, repair, replace, and rehabilitate the

project after completion (referred to as OMRR&R);

 (5) Hold and save the United States free from damages due to

the construction or subsequent maintenance of the project, except any

damages due to the fault or negligence of the United States or its

contractors;

 (6) Prevent future encroachments which might interfere with

proper functioning of the project;

 (7) For any project for local flood protection, participate

in and comply with applicable Federal flood plain management and flood

insurance programs (i.e., the National Flood Insurance Program),

pursuant to Section 402, Public Law 99-662, as amended, (Note: Item

(7) is applicable to projects designed for the primary benefit of

specific localities; for projects such as large reservoirs designed to

provide widespread benefits of varying significance to disparate

jurisdictions thoughout an extended area or region, it may be omitted)

and, prepare a flood plain management plan designed to reduce the

impacts of future flood events in the project area within one year of

signing a project cooperation agreement (PCA), and implement such plan

not later than one year after completion of construction of the

project; and,

 (8) Provide guidance and leadership to prevent unwise future

development in the flood plain.

 b. Nonstructural Measures. The non-Federal costs for

nonstructural measures (as complete projects or as components of a

project combining both structural and nonstructural elements) will be

limited to 25 percent of total project costs (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996) for such measures. 

Non-Federal interests are required to provide all LERRD. If the cost

of LERRD should be less than 25 percent of total costs (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996) for the nonstructural

measures, non-Federal interests shall pay the difference in cash. If 
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LERRD costs are in excess of 25 percent (35 percent for

features/projects authorized, or reauthorized after formal

deauthorization, after 12 October 1996), the difference will be

reimbursed by the Federal Government. Non-Federal interests are

responsible for all related OMRR&R. They are also required to

participate in and comply with applicable Federal flood plain

management and flood insurance programs and prepare and implement a

flood plain management plan. (The 5 percent cash contribution

required for structural components is not required for nonstructural

components, nor are non-Federal interests required to contribute any

cash for which they may be responsible during the period of project

construction, as they might be in connection with structural

components.) Nonstructural measures adopted as part of a project,

regardless of why so included (e.g., to achieve mitigation of

secondary impacts of structural measures), shall, for cost sharing

purposes, be treated as a nonstructural components of the project.

 c. Special Cases. Special local requirements, cost sharing

or otherwise, may be recommended in order to provide equitable and

practical Federal/non-Federal cooperation. 

 (1) Projects providing windfall-type benefits of

"unconscionable" magnitude to a few beneficiaries are considered to

warrant special and equal cost sharing, usually as a cash

contribution, from the responsible local entity, in addition to other

requirements of cooperation. Sub-allocation of this added cost is the

responsibility of the local entity.

 (2) Local interests are assigned the cost of covering flood

control channels when provision of the cover is not required for

safety or when it decreases net National Economic Development (NED)

flood damage reduction benefits. (ER 1165-2-118)

 (3) Special items of construction may be assigned to the

Corps or to local entities, depending on practical considerations of

construction procedures, safety, and efficiency, if provided for in

the project authorization.

 d. Regulation of the Flood Plain. Responsibility for

adoption and enforcement of regulations for flood plain management is

entirely local. In the absence of a Federal project the Corps cannot

require local interests to implement flood plain regulations (for

instance, where feasibility studies result in conclusion that

regulation is the most appropriate or only feasible response to the

flood problem). However, before construction of any Federal project

for local flood protection, or any Federal project for hurricane or

storm damage reduction, or separable element thereof, including

projects developed under Section 103, Section 205, and Section Section

208 of the Continuing Authorities Program, that involves Federal

assistance from the Secretary of the Army (and for which the Secretary

and the non-Federal interest enter into a project cooperation

agreement (PCA) after 12 October 1996), non-Federal interests are

required to agree to participate in and comply with applicable

Federal floodplain management and flood insurance programs (e.g., the

National Flood Insurance Program which requires the adoption of land

use control measures to prevent construction in the floodway or

construction of permanent structures in the balance of the flood plain

with first floors below the 100-year flood level). Within one year

after the date of signing a PCA for construction of a project to which

the aforementioned requirement applies, the non-Federal interest is

required to prepare a flood plain management plan (FPMP) designed to

reduce the impacts of future flood events in the project area, and to
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implement such FPMP not later than one year after completion of

construction of the project. To promote prudent flood plain

management at the non-Federal level, it is Corps policy to encourage a

non-Federal sponsor to develop its FPMP during the preparation of the

feasibility study. A non-Federal sponsor’s FPMP should implement

measures, public expenditures, and policies to reduce loss of life,

injuries, damages to to property and facilities, public expenditures,

and other adverse impacts associated with flooding, and to preserve

and enhance natural flood plain values and should address measures

which will help preserve levels of protection provided by the Corps

flood damage reduction or hurricane or storm damage reduction project. 

Also, local interests may be required to adopt and enforce other,

special regulations if they are necessary to protect the Federal

investment or to achieve expected project benefits (e.g., preservation

of channel capacity by adoption of regulations controlling channel

encroachments, preservation and reservation of ponding areas, etc.). 

In general, the local sponsor should adopt flood plain management

programs necessary to ensure wise use of flood plains in, as well as

adjacent to, the project area. (ER 1105-2-100). 

13-11. Single Owner Properties. The Corps will not recommend

adoption of a Federal project, or include as a separable element in a

recommended structural project plan, flood control improvements which

would solely benefit the private property of a single owner. (See

Table 12-3 and paragraph 12-7.a) The Corps may recommend Federal cost

participation in the construction of a flood control project where the

project would serve/benefit property owned publicly by a single state

(including the District of Columbia and territories and possessions of

the United States), county, municipality, or other duly appointed

public entity. (ER 1165-2-123)

13-12. Credit for Compatible Non-Federal Works. The non-Federal

sponsor of a Corps flood control project may, pursuant to Section 104

of WRDA 1986 (Public Law 99-662), receive credit toward the sponsor's

costs for required local cooperation for compatible flood control

works constructed in advance by non-Federal interests. Basically this

is limited to such works undertaken by non-Federal sponsors while

Federal preauthorization studies for the Federal project are in

progress. (ER 1165-2-29)

 

 a. Work accomplished prior to completion of the

reconnaissance phase of the preauthorization studies is not eligible.

 b. Thereafter, credit may be afforded if, before the work is

undertaken, the non-Federal sponsor applies for and receives

conditional assurance from the Corps that the work can reasonably be

expected to be recommended for credit. (This procedure must be

completed prior to project authorization.)

 c. The work must subsequently be completed by the non-Federal 

sponsor; a Federal project must ultimately be authorized by Congress;

the completed non-Federal work must still be a relevant element of

whatever final plan for the Federal project is adopted; and the

Federal project must actually be undertaken.

 d. In completion of the feasibility phase of preauthorization

studies, the non-Federal works for which credit applications have been

favorably acted upon will be included as elements of at least one of 
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the alternative plans under consideration for recommendation as a

Federal project; in evaluation of the alternatives, such non-Federal

works, whether completed or not, will not be assumed part of the

"without" project condition.

 e. Proposed crediting will be addressed in feasibility report

recommendations.

 f. Credit for completed compatible work may be given after

the PCA is approved against all requirements of local cooperation for

the Federal project, except against the basic 5 percent cash

contribution; the creditable work will be valued as the lesser of the

actual non-Federal costs or the estimated cost for the work if

accomplished as part of Federal project construction; if such value

exceeds the final value of the local cooperation requirements against

which credit can be given, non-Federal sponsor is not entitled to

reimbursement for any such excess.

13-13. Flood Insurance. The National Flood Insurance Program (NFIP)

is available to protect the individual in participating communities

from extreme financial loss in the event of a disasterous flood. 

Under the NFIP (Public Law 90-448, as amended) insurance is

subsidized, up to an amount specified, on properties in areas

designated as hazardous by the Federal Emergency Management Agency

(FEMA). The land use control measures required of communities to gain

and maintain eligibility for flood insurance are complementary to

other flood plain management efforts. Section 202 of Public Law

93-234 states that no Federal officer or agency shall approve any

financial assistance for acquisition or construction purposes after

July 1, 1975, for use in any area identified by FEMA as an area having

special flood hazards unless the community in which such area is

situated is then participating in the NFIP. Section 402 of WRDA 1986

expands the prohibition against Federal participation in flood hazard

areas by including "Federal participation in construction of local

flood control projects”; and Section 14 of WRDA 1988 amended Section

402 to extend prohibition to “hurricane and storm damage reduction

projects." Throughout the planning, engineering, and construction

process, coordination, investigations and responsibilities of the

parties involved must be identified to ensure that the necessary

technical data is developed and available for the community to

maintain active participation in the NFIP.

13-14. Evaluation of Economic Benefits for Flood Damage Reduction. 

Flood plain management, including flood control and prevention, can

contribute to the NED objective by improving the net productivity of

flood prone land resources. This occurs either by an increase in

output of goods and services and/or by reducing the cost of using the

land resources (improvement in economic efficiency). The benefit

standard is the willingness of users (benefiting activities) to pay

for each increment of output from a plan. (P&G, Chapter II)

 a. Evaluation Procedure. Each flood plain management plan

under consideration is evaluated on a with and without basis. The

without condition is that most likely to occur without the specific

plan and gives proper recognition of the effect of existing and

authorized plans, laws, policies and the flood hazard on the probable

course of development. The adoption and enforcement of appropriate

land use regulations pursuant to the Flood Disaster Protection Act of

1973 (Public Law 93-234) and compliance with EO 11988 and EO 11990 are

assumed, both with and without a Corps plan. For purposes of

evaluating structural components of a plan, rational economic use of

the flood plain is assumed. Economic rationality assumes that users
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of the flood plain will attempt to maximize returns, and take actions

with full knowledge of the flood hazard unless constrained by laws or

policies as mentioned above. Benefits and costs are evaluated under

prices existing at the time of submission of the report to HQUSACE.

 b. Flood Damage Reduction Benefits. NED benefits are

categorized according to their effect as inundation reduction

benefits, intensification benefits, or location benefits. Inundation

reduction benefit is the value of reducing or modifying the flood

losses to the economic activity using the flood plain without any

plan. Inundation reduction benefits are usually measured as the

reduction in the amount of flood damages or related costs (those which

would be voluntarily undertaken by economically rational individuals

to reduce damages). Intensification benefit is the value of more

intensive use of the land (e.g., a shift from lower to higher value

crops or higher crop yields). Location benefit is the value of making

flood plain land available for a new economic use (e.g., where a shift

from agricultural to industrial use occurs).

 c. Benefits from Evacuation or Relocation. NED benefits

resulting from evacuation and relocation plans consist of: benefits

from the new use of the flood plain; reduction of externalized flood

damages (damages absorbed by non-flood plain occupants); and benefits

accruing to off-flood-plain properties adjacent to open space. In

addition, non-monetary values such as increases in significant

environmental outputs on the evacuated flood-prone lands may be

considered in establishing justification for evacuation and relocation

plans. 

 d. Land Development Benefits. Land development, as used here

for policy purposes, is defined as the conversion of primarily vacant

land (land without significant structural improvements) to more

valuable (economically defined) use as a result of a flood damage

reduction project. Benefits for land development are usually

categorized as "location" benefits and are equivalent to the net

change in land value. An example would be the conversion of farmland

to residential land as a result of provision of flood protection. 

Land development does not include cases where land use is the same

with or without the flood damage reduction project but would be used

more intensively (intensification). It also does not include cases

where land use would change without the project and project benefits

are achieved through savings in future flood proofing costs or

prevention of damages to future development. The following general

policy principles apply to the consideration of land development

benefits at structural flood damage reduction projects.

 (1) Project or separable increments of projects that achieve

only land development (location) benefits do not address the prioity

purpose of flood damage reduction and, therefore, have a low budget

priority. Federal participation in these projects or separable

increments will not be recommended.

 (2) The NED plan will be formulated to protect existing

development and vacant property that is interspersed with existing

development. All project benefits, including land development

benefits for interspersed vacant property, will be included for

project formulation and justification. The NED plan may also provide

protection of vacant property that is not interspersed with existing

development if it can be demonstrated that the vacant property would 
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be developed without the project and benefits are based on savings in

future flood proofing costs or reduction in damages to future

development.

 (3) If no project or separable project increment can be

economically justified to protect existing development, interspersed

vacant property and/or property that would be developed without the

project, there is ordinarily no budgetary interest in expanding the

area of protection to achieve land development (location) benefits

even if net benefits are increased and economic justification can be

achieved.

 (4) A limited exception to policy principles (1) through (3)

above can be considered in the case where the cost of protecting

existing development can be substantially reduced if some vacant

property that is not interspersed with existing development is

included in the protected area. This situation typically exists where

an existing levee or floodwall is being raised to provide a higher

degree of protection. These exceptions will be considered on a caseby-case basis. Compatibility with EO 11988 still must be

demonstrated. It also must be clear that the primary objective of the

project is not land development but the minimization of the cost of

protecting existing development.

 e. Benefit Determination Involving Existing Levees. Problems

have often arisen in the benefit evaluation of flood damage reduction

studies when there are existing levees of uncertain reliability. 

Specifically, the problem is one of engineering judgment but has

implications for benefit evaluation: engineering opinion may differ or

be uncertain on the ability of the levees to contain flows with water

surface elevations of given heights. This may lead to difficulty in

arriving at a clear, reasonable and agreed upon without project

condition.

 (1) General. Investigations for flood damage prevention

involving the evaluation of the physical effectiveness of existing

levees and the related effect on the economic analysis shall use a

systematic approach to resolving indeterminate, or arguable, degrees

of reliability. Reasonable technical investigations shall be pursued

to establish the minimum and, to the extent possible, the maximum

estimated levels of physical effectiveness. Necessary information and

summary of analyses shall be included in report presentations of plan

formulation and shall be documented in appropriate supporting

materials.

 (2) Sources of Uncertainty. Studies involving existing

levees will focus on the sources of uncertainty (likely causes of

failure). Other than overtopping, levees principally fail due to one

or a combination of four causes: surface erosion, internal erosion

(piping), underseepage, and slides within the levee embankment or

foundation soils. Reasonable investigations, commensurate with the

level of detail suitable to the planning activity underway, shall

determine the condition of existing levees with respect to the factors

that can lead to failure, if this information does not already exist.

 (3) Performance Record. Existing levees either have or have

not failed during previous flood events or have shown evidence of

distress such as various degrees of piping, underseepage and

sloughing. Information regarding their performance is relevant and

vitally important in forming judgments regarding future performance. 

However, it should not be assumed that because a levee has passed a 
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flood of a given frequency it will always do so in the future or vice

versa, assuming the levee has been repaired.

 (4) Reliability.

 (a) Reliability judgments should be based solely on physical

phenomena. The question to be answered is: what percent of the time

will a given levee withstand water at height "x"? This means that

considerations such as degree of protection, induced damages, induced

flood heights, potential for increased risk of loss of life due to

false sense of security, etc., are not included. These considerations

will be dealt with separately during the plan formulation process.

 (b) The purpose of reliability determination is to be able to

estimate the without-project damages. Its purpose is not to make

statements about the degree of protection afforded by the existing

levees. Major subordinate commands (MSC) and district commands (DC)

making reliability determinations should gather information to enable

them to identify two points on the existing levees. The first point

is the highest vertical elevation on the levee such that it is highly

likely that the levee would not fail if the water surface elevation

were to reach this level. This point shall be referred to as the

Probable Non-failure Point (PNP). The second point is the lowest

vertical elevation on the levee such that it is highly likely that the

levee would fail. This point shall be referred to as the Probable

Failure Point (PFP). As used here, "highly likely" means 85+ percent

confidence. As defined, the PNP will be at a lower elevation than the

the PFP. When there are unresolved uncertainties or differences of

opinion, consideration should be given to having the range of

uncertainty extend from the lower of arguable PNPs to the higher of

the PFPs. Because of lack of information or other reasons, if the PFP

cannot be determined then the PFP shall be the low point in the levee

where the levee is first overtopped. When determining the low point

in the levee, MSC and DC shall assume that closure actions have taken

place.

 (5) Benefit Evaluation Procedure. Even if no degree of

protection is claimed for an existing levee, it does, most likely,

provide some benefits. Assessment of these benefits must be in some

degree arbitrary in the absence of illuminating engineering or

statistical analyses. The function of identifying the probable

failure and non-failure points is to create a range of water surface

elevations on the levee over which it may be presumed that the

probability of levee failure increases as water height increases. The

requirement that as the water surface height increases the probability

of failure increases, incorporates the reasonable assumption that as

the levee becomes more and more stressed it is more and more likely to

fail. If the form of the probability distribution is not known, a

linear relationship is an acceptable approach for calculating the

benefits associated with the existing levees. For benefit evaluation,

assume all flood damages will be prevented below the PNP; and no

damages will be prevented above the PFP.

 f. Restoration of Market Values. Valid estimates of restored

market value are difficult and costly to make in typical flood control

project evaluations. Therefore, no resources should be used in

efforts to quantify restoration of market values for flood control

projects.

13-15. Flood Emergency Operations and Disaster Assistance.
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 a. Corps of Engineers Authority. Emergency activities

pursuant to Section 5 of Public Law 77-288, as amended by Public Law

99, 84th Congress, Section 206 of the Flood Control Act of 1962 and

Section 302 of WRDA 1990, and others, includes the following work

whenever and wherever required: preparation for emergency response to

any natural disaster; flood fighting and rescue operations; post flood

response; emergency repair and restoration of flood damaged or

destroyed flood control works such as levees; emergency protection of

Federally authorized hurricane and shore protection works being

threatened; and the repair or restoration of Federal hurricane or

shore protection structures damaged or destroyed by wind, wave, or

water action of other than an ordinary nature. The authority under

Section 5, as amended, was expanded by Section 82 of Public Law

93-251, which authorized providing emergency supplies of clean water

to any locality confronted with a source of contaminated water causing

or likely to cause a substantial threat to the public health and

welfare of the inhabitants of the locality. Public Law 95-51 further

amended Section 5 to provide the Secretary of the Army authority to

provide emergency water supplies in areas determined to be drought

distressed. Authorized emergency activities are financed from an

Emergency Fund authorized by Section 5, to be replenished on an

annual basis. (ER 11-1-320, ER 500-1-1)

 (1) The provision of advance flood damage reduction measures

by the Corps is supplemental to state and local community efforts,

rather than replacements for them. Corps protective and preventive

measures will generally be of a temporary nature designed to meet an

imminent flood threat. Permanent rehabilitation work to protect

against the threat of future disasters will be considered separately

from advance measures. A declaration of a state of emergency or

written request by the governor of a state is a prerequisite to

furnishing advance measures. Local interests are required to remove

temporary works provided as advanced measures.

 (2) It is Corps policy that local assurances and appropriate

requests for assistance will be obtained. Local cooperation for

accomplishment of advance measures and rehabilitation works require

local assurances to (a) provide without cost to the United States all

lands, easements and rights-of-way necessary for the authorized

emergency work; (b) hold and save the United States free from damage

due to the authorized emergency work; and (c) maintain and operate all

the rehabilitation work after its completion. Additional features of

local participation should also be considered, as appropriate, and

included in the assurance agreement; e.g., the removal of emergency

flood damage reduction measures, after their purpose has been served,

is a local responsibility.

 (3) Requests for providing emergency supplies of clean water

due to contamination or drought are considered separately from the

flood and coastal storm emergency activities. Requests for assistance

due to a contaminated source must be made in writing by the governor

of the state affected. Assistance for contaminated source situations

is limited to 30 days. Applications from drought distressed areas may

be presented by individuals or political subdivisions who must agree

to the terms deemed necessary by the Secretary of the Army. 

Assistance is limited to Federally owned equipment and Federal

manpower for implementation.

 (4) Under Section 5, as amended, emergency funds may be

expended directly by the Corps for authorized purposes. However, 
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there is no authority under Section 5 whereby local interests may be

reimbursed for any of their costs for emergency operations

accomplished on their own behalf. Also, Section 5 authority and funds

are not used in lieu of other appropriate Corps continuing

authorities.

 (5) After a flood event, the Corps may perform emergency work

on public and private lands and waters for a period of 10 days

following a governor's request for assistance. This work must be

essential for the preservation of life and property, including, but

not limited to, channel clearance, emergency shore protection,

clearance and removal of debris and wreckage endangering health and

safety, and temporary restoration of essential public facilities and

services.

 b. Other Disaster Assistance. Disaster assistance beyond

Corps statutory authority will conform to the provisions of AR 500-60

which pertains primarily to military assistance. In the event of

Presidential declaration of a major disaster, or emergency declared by

the Director, Federal Emergency Management Agency (FEMA), assistance

to state and local governments is provided in essential response and

recovery operations when and as directed by the President through FEMA

under the provisions of The Robert T. Stafford Disaster Relief Act

(42 U.S.C. 5121 et seq). The Corps fully responds to all requests

from the FEMA Director or Regional Director. (ER 11-1-320, ER

500-1-1)

13-16. Use of Storage Allocated for Flood Damage Reduction and

Navigation at Non-Corps Projects. Section 7 of the Flood Control Act

of 1944 requires the Secretary to prescribe regulations for the use of

storage allocated for flood control or navigation at all reservoirs

constructed wholly or in part with Federal funds. During the planning

and design phases, project owners consult with the Corps regarding the

quantity and value of space to reserve in the reservoir for flood

damage reduction and/or navigation. (ER 1110-2-241, EM 1110-2-3600)

13-17. Provision of Flood Protection at Urban Renewal Projects. The

inclusion of flood protection at urban renewal projects must be in

accordance with the WRC Principles and Guidelines (P&G).

13-18. Construction of Flood Control Projects by Non-Federal

Interests. Section 211 of WRDA 1996 provides authority for nonFederal sponsors to undertake the design and construction of federally

authorized flood control projects without Federal funding, and to be

eligible to be reimbursed an amount equal to the estimate of the

Federal share, without interest (or inflation), of the design and

construction cost of the project or separable element thereof. The

Energy and Water Development Appropriations Act of 1998 provides

additional guidance on Section 211 of WRDA 1996 regarding notification

of the Committees on Appropriations of the House and Senate on

scheduling of reimbursements.

 a. General. Reimbursement for the construction of any

authorized flood control project undertaken by a non-Federal sponsor

pursuant to Section 211 of WRDA 1996 is contingent upon approval by

the Secretary of the Army of the plans for construction and the

Secretary’s determination, after a review of studies and design

documents, that the project or separable element thereof, is

economically justified and environmentally acceptable. This approval

must be obtained prior to the initiation of construction of the work

for which the reimbursement request will be made. Further, prior to

initiating negotiations for a reimbursement agreement for the
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construction of any project pursuant to Section 211 of WRDA 1996, the

Secretary of the Army must notify the Committees on Appropriations of

the House and the Senate. This notification must include the total

commitment and the reimbursement requirements that the Administration

intends to support in future budget submissions. Budgetary and

programmatic priorities will be taken into account when reviewing

plans submitted by non-Federal sponsors. Only projects or separable

elements of projects which have been specifically authorized by

Congress will be considered eligible for reimbursement under this

provision. Reimbursement of non-Federal sponsor work under Section

211(e) of WRDA 1996 will not be considered for the Continuing

Authorities Program projects.

 b. Non-Federal Requirements. All projects pursued under the

authority of Section 211 must be planned, designed and constructed in

accordance with appropriate Federal criteria, standards and policies,

including the appropriate National Environmental Policy Act (NEPA)

documentation, and construction must comply with all applicable

Federal and state laws and regulations. The non-Federal sponsor will

normally be required to develop the design, engineering plans and

specifications for the construction it proposes to undertake. In

addition, the non-Federal sponsor must conduct NEPA investigations,

prepare appropriate NEPA documents, conduct all public and agency

coordination, and obtain all necessary Federal and state permits. The

Corps may undertake these efforts if funds are provided by the nonFederal sponsor and if such work does not delay the completion of

other Corps assignments. Further, funds for activities undertaken by

the Corps district offices which are necessary for the successful

completion of a Section 211 project or separable element thereof, and

construction of the sponsor proposed work including, but not limited

to, design, review of project economics, environmental assessments,

determination of LERRDs requirements, auditing, permit evaluations,

and inspections, must also be provided by the non-Federal sponsor. 

The non-Federal sponsor must provide all LERRDs and shall perform or

ensure performance of all relocations that the Corps determines are

required for the construction, operation and maintenance of the

project. The value of LERRDs provided by the non-Federal sponsor that

are required for the project will be determined in accordance with

standard valuation procedures as contained in the model PCA for

structural flood control projects. In addition, the non-Federal

sponsor will be responsible for the operation, maintenance, repair,

replacement and rehabilitation of the project in accordance with

regulations or directions prescribed by the Corps and shall perform

all other items of sponsor cooperation required by the project

authorization.

 c. Section 211 Agreement. In the development of a Section

211 agreement, the normal procedures for processing and reviewing

a PCA will be used. The decision document approved by the

Secretary must be included as support for the Section 211

agreement. Negotiations for proceeding with a project under

Section 211 are to be accomplished at the district level once

approval to initiate the negotiations has been received.

 d. Reimbursement. Reimbursements pursuant to Section

211(e)(1) of WRDA 1996 cannot occur until the flood control project,

or separable element thereof, has been constructed. Reimbursements

are subject to appropriations Acts. Any eligible reimbursable Federal

share of costs associated with studies or design efforts conducted by

non-Federal sponsors after authorization and prior to construction

will be included in the final auditing of the total project costs upon

completion of the construction of a project or separable element
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thereof. Any reimbursement desired by a non-Federal sponsor for

studies or design it accomplished prior to authorization must be

specifically identified and requested in the authorizing document.
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CHAPTER 14

SHORE PROTECTION

(NOTE: Storm damage reduction policies are currently undergoing

Administration/Congressional review, and the policies in this chapter

will be updated when this review is completed).

14-1. Beach Erosion Control.

 a. Federal Interest. Before 1930, Federal interest in shore

erosion problems was limited to the protection of Federal property and

improvements for navigation. At that time, an advisory "Board on Sand

Movement and Beach Erosion" appointed by the Chief of Engineers was

the prinicipal instrumentality of the Federal Government in this

field. The need for a central agency to assemble data and provide

engineering expertise regarding coastal protection was recognized by

Congress with creation of the Beach Erosion Board authorized by

Section 2 of the River and Harbor Act approved 3 July 1930 (Public Law

520, 7lst Congress, 33 U.S.C. 426). The board was empowered to make

studies of beach erosion problems at the request of, and in

cooperation with cities, counties, or states. The Federal Government

bore up to half the cost of each study but did not bear any

construction costs unless Federally-owned property was involved. An

Act of Congress approved 13 August 1946 (Public Law 727, 79th

Congress) established a policy of Federal aid in construction costs

where projects protected publicly-owned shores. An Act approved 28

July 1956 (Public Law 826, 84th Congress) amended that basic beach

erosion legislation to authorize Federal participation in the

protection of private property if such protection was incidental to

the protection of publicly owned shores, or if such protection would

result in public benefits. The River and Harbor Act of 1962 (Public

Law 87-874) increased the proportion of construction costs borne by

the Federal Government and made the total cost of studies a Federal

responsibility. An Act approved 7 November 1963 (Public Law 88-172)

abolished the Beach Erosion Board, transferred its review functions to

the Board of Engineers for Rivers and Harbors, and established the

Coastal Engineering Research Center. The Water Resources Development

Act (WRDA) of 1986 (Public Law 99-662) recognizes hurricane and storm

damage reduction (HSDR) and/or recreation as the primary purposes of

beach erosion control (BEC) projects, alters the proportion of

construction costs that may be borne by the Federal Government, and

reduces the Federal cost participation in feasibility studies to 50

percent. (ER 1165-2-130)

 b. Definitions. Under existing shore protection laws Congress

has authorized Federal participation in the cost of restoring and

protecting the shores of the United States, its territories and

possessions. The intent of this legislation is to prevent or control

shore erosion in order to reduce damage to upland developments caused

by wind- and tidal-generated waves and currents along the Nation's

coasts and shores, and lakes, estuaries, and bays directly connected

therewith. Such adverse effect extends only the distance up tributary

streams where it can be demonstrated that the dominant causes of

erosion are ocean tidal action (or Gulf of Mexico and Great Lakes

water motion) and wind-generated waves. Shore protection legislation

does not authorize correction of erosion at upstream locations caused

by stream flows. Shore or beach erosion is primarily the result of

persistent littoral processes and by the battering action of waves

occurring during storms. Shore or beach erosion damages include both

losses to upland development--land and structures--and losses of
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recreational uses (however, see paragraph 14-2). The mitigation of

shore erosion caused by Federal navigation works is discussed in

paragraph 12-25.

 (1) Restoration and Protection. The term "restoration" was

substituted for "improvement" in the amendment of July 28, 1956

(Public Law 826, 84th Congress, 70 Stat. 702) so that the basis for

Federal concern became "restoration and protection" as opposed to

creation of new lands (House Report No. 2544 and Senate Report No.

2691, 84th Congress). Accordingly, Federal participation in

restoration is limited to the historic shoreline. It does not provide

for Federal cost sharing in extending a beach beyond its historic

shoreline unless required for protection of upland areas.

 (2) Public Use. The term "public use", particularly of

private property, means recreational use by all on equal terms and

open to all regardless of origin or home area. Prohibited is any

device for limitation of use to specific segments of population, such

as local residents, or similar restrictions on outside visitors,

directly or indirectly. This definition allows a reasonable beach

entrance fee, uniformly applied to all, for use in payment of local

project costs. Normal charges made by concessionaires and

municipalities for use of facilities such as bridges, parking areas,

bath houses and umbrellas are not construed as a charge for the use of

the Federal beach project, as long as they are commensurate with the

value of the service they provide and return only a reasonable profit. 

Fees for such services must be applied uniformly to all concerned and

not as a prerequisite to beach use. Lack of sufficient parking

facilities for the general public (including non-resident users)

located reasonably near and accessible to the project beaches or lack

of public pedestrian rights-of-way to the beaches at suitable

intervals would constitute de facto restriction on public access and

use of such beaches, thereby precluding eligibility for Federal

assistance.

 (3) Operation, Maintenance, Repair, Replacement, and

Rehabilitation (OMRR&R) for Beachfills. The following definitions

apply for OMRR&R for beach fills which are recommended for

authorization with continuing Federal construction participation in

periodic nourishment. It is recognized that the non-Federal

responsibilities at existing projects may vary from these definitions.

Also, these definitions do not deal with hardened structures (e.g.,

groins, bulkheads, sea walls, and revetments) which may be features of

shore protection projects. For projects constructed since enactment

of WRDA 1986, the non-Federal sponsor is responsible for all

activities related to the OMRR&R of hardened structures, including

terminal groins which may be included in beach fill projects. There

is no Federal continuing construction responsibility associated with

hardened structures.

 (a) Operations. This is the non-Federal sponsor's continuing

oversight activities to assure that the beach design section provides

storm damage reduction and promotes and encourages safe and healthful

public enjoyment of the recreational opportunities provided by the

beach fill. Operation activities include protection of dunes,

prevention of encroachments, monitoring of beach design section

conditions, provision of life guards and beach patrols, and trash

collection (see ER 1110-2-2902 for more details). Operations are a

non-Federal sponsor responsibility and there is no Federal financial

participation in operations activities.
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 (b) Maintenance, Repair, Replacement, and Rehabilitation. For

beach fill there is, generally, no meaningful distinction between

maintenance, repair, replacement, and rehabilitation. A beach fill

project is designed to provide a certain level of erosion and storm

surge protection to landward facilities through the sacrifice of

project fill material. The protection provided depends on the crown

elevation and the amount and characteristcs of sacrificial sand

maintained within the project design section. The project function

depends on maintenance of the horizontal and vertical dimensions of

the project design section. Preservation of this design section can

be achieved through a combination of the following activities which

generally describe the non-Federal sponsor responsibility for

maintenance, repair, replacement, and rehabilitation under the terms

of the project cooperation agreement (PCA):

 (1) Grading and shaping the beach and dune using sand within

the project design section.

 (2) Maintenance of dune vegetation, sand fencing and dune

cross-overs.

 (c) Continuing Project Construction (Periodic Nourishment). 

The following activities may be classified as continuing project

construction and may be shared as periodic nourishment under the terms

of the PCA:

 (1) Placement of additional sand fill to restore an advanced

nourishment berm.

 (2) Placement of additional sand fill on the projet to restore

the design section.

 c. Cost Sharing. Federal participation in shore protection

projects(excluding HSDR projects designed to protect against storm

wave action and/or tidal inundation only without providing any

shoreline protection and/or beach erosion control) is based on

shoreline ownership, shore use, and type and incidence of benefits. 

Non-Federal interests are responsible for providing all lands,

easements, rights-of-way, relocations and dredged material disposal

areas (LERRD). The non-Federal costs for LERRD are credited against

the sponsor's total responsibility for sharing construction costs

(determined as a weighted percentage), and any excess LERRD costs will

be reimbursed to the sponsor after initial project construction is

completed. Lands, easements, and rights-of-way (LER) needed for the

placement of shore protection project features that prevent the loss

of the land itself have no value for crediting purposes since such

land is lost in the absence of the project. However, the real estate

market may not reflect this and a non-Federal project sponsor may in

fact incur costs in acquiring requisite interests. Accordingly, a

non-Federal sponsor will be credited for actual costs or for the net

reduction in total market valuation of the parcels (from which

interests for the project must be drawn) assuming no Federal project

compared to assuming the project is in place (i.e., including

consideration of special benefits to the property owners), whichever

is least. Non-Federal interests must pay 100 percent of the OMRR&R)

costs assigned to non-Federal shores.

 (1) Federal Shores. Costs assigned to protection of

Federally-owned lands and shore are 100 percent Federal if the Federal

agency owning the land and shore requests protection. It is 
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inappropriate that projects wholly for protection of Federal lands

(for example, military installations and National Park Service lands)

compete for funding under the Corps civil works program in with

studies and projects requested by non-Federal public agencies. The

Corps should not be placed in the position of defending the programs

of another Federal agency before the Office of Management and Budget

and the Congress. Costs or work specifically to protect lands

controlled by another Federal agency will usually be borne by that

agency. The Corps will accomplish such work on a reimbursable basis

upon request (See Chapter 23). An exception would be a case wherein

the lands in question involve only a minor, but integral, part of the

overall protection frontage. In such a case, protection would be

included to assure a complete overall project, with the related costs

assigned as 100 percent Federal. If, upon request, funding could not

be obtained from the Federal agency concerned, this segment of the

project would be funded from project appropriations. Another

exception would be a case where the other Federal agency lands

comprise part of the alignment of the least cost plan for providing

protection.

 (2) Non-Federal Shores.

 (a) Privately Owned and Used. Costs assigned to

privately-owned undeveloped lands and to developed lands where the use

of the shore is limited to private interests are 100 percent

non-Federal. Federal aid to private shores owned by beach clubs and

hotels is incompatible with the intent of Public Law 84-826. Actual

use of their beaches is subject to the limitation of club membership

or to being a guest at the hotels, even though the clubs or hotels may

indicate that membership or guest privileges are open to all on equal

terms. Usually, these establishments are operated for private profit

or to restrict beach use. They exclude all members of the general

public except for membership or paying guests. It is considered that

their facilities, including parking facilities therefor, are not open

to the general public. However, protection of such private shores may

sometimes be included when determined essential to a complete overall

project. The related costs would be assigned, 100 percent, to the

non-Federal project sponsor. If the upland part of a segment of beach

is privately owned and used, that segment will be assigned 100 nonFederal responsibility for project work, both below and above the mean

high tide line.

 (b) Privately Owned and Publicly Used. Costs assigned to

prevention of damage to privately-owned developed lands, where use of

the shore meets criteria for public use, are 35 percent non-Federal. 

 (c) Publicly Owned and Used. Costs assigned to non-Federal

public lands and shores used for parks and recreation purposes are 50

percent non-Federal. In the case of non-Federal public lands

developed for other purposes and subject to hurricane or storm

damages, the assigned costs may be 35 percent non-Federal.

 (3) Shores Combining Categories. Where a shore protection

project encompasses more than one category of ownership and use, the

non-Federal share of project costs will ordinarily be expressed as a

composite percentage of total project costs derived by weighting the

appropriate cost sharing percentages for the given categories (as

above) by the linear feet of project shoreline within those

categories. This is where the initial construction costs are

reasonably uniform for the entire project; where they are not, the

project shoreline will be first subdivided into segments that are
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relatively uniform in costs and a weighted percentage calculated from

the total costs, from all segments, assigned to each category.

 d. Periodic Nourishment. No Federal contribution toward

maintenance of a shore protection project is authorized. However, the

Act of 1956 (Public Law 84-826) provides that Federal participation

may be made toward periodic beach nourishment when it is found to

comprise a more suitable and economical remedial measure for shore

protection than retaining structures such as groins. Periodic

nourishment (if not specifically authorized on another basis) is to be

considered "construction" for funding and cost-sharing purposes. 

Corps participation in periodic beach nourishment (sand replacement)

is limited to the period specified in authorizing documents. Section

934 of WRDA 1986 allows extension of the authorized period to 50 years

from the date of initiation of construction, if it is determined that,

based on current evaluation guidelines and policies, the existing

project is economically justified. Preauthorization reports will

generally recommend Federal assistance in periodic nourishment for the

economic life of the project. Nourishment costs will be shared in the

same percentages as initial project installation costs were shared. 

 (1) Replacement of Dunes. Prior to WRDA 1986, many shore

protection projects were formulated with two separate purposes: BEC

and HSDR. Different cost sharing and local cooperation requirements

applied to these two purposes. Beach berms were generally cost shared

as erosion protection measures. The Federal Government participated

in periodic nourishment. Protective dunes, on the other hand, were

cost shared as HSDR features based on their use for storm surge and

wave damage protection. The local sponsor was responsible for all

OMRR&R, including placement of additional sand to restore the dune

section. WRDA 1986 established the single unified purpose of HSDR. 

Accordingly, where protective dunes are included as part of the HSDR

project, the Corps will recommend authorization for continued Federal

participation in periodic nourishment of the protective dune. The

rationale for this policy is that the protective dune, along with the

protective beach, is part of the sacrificial storm damage reduction

system where loss of material from the system is anticipated. The

replacement of dune vegetation following periodic nourishment and

replacement of dune cross-overs, however, is a non-Federal

responsibility. This policy does not extend to HSDR levees which do

not function as sacrificial systems, or to hard features (e.g.,

groins, revetments, seawalls). Also the non-Federal sponsor has sole

responsibility for maintenance, including maintenance of dune

vegetation, sand fencing, and grading and reshaping the dune to the

design section with available material.

 (2) Recognition of Costs in Non-Federal Sponsor Financing

Plan. The continuing requirement for periodic nourishment for beach

fill projects must be reflected in the schedule of estimated Federal

and non-Federal expenditures. This schedule is furnished to the nonFederal sponsor to prepare the sponsor's financing plan and statement

of financial capability. The assessment of the non-Federal sponsor's

financial capability must include a demonstration of the sponsor's

capability to meet its share of periodic nourishment costs. The

sponsor must also understand that, while an "average" periodic

nourishment cycle is estimated, the need for periodic nourishment is

most often associated with replacement of erosive losses that occur

during storm periods. Therefore, the local sponsor should demonstrate

the financial capability to respond quickly to periodic nourishment

requirements. This may involve establishing a contingency fund or

emergency response account. 
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14-6

 e. Project Formulation. Shore protection projects are

formulated to provide for hurricane and storm damage reduction. On

this basis any enhancement of recreation that may also result is

considered incidental. Such recreation benefits are NED benefits,

however, and are included in the economic analysis. Additional beach

fill, beyond that needed to achieve the hurricane and storm damage

reduction purpose, to better satisfy recreation demand would be a

separable recreation feature requiring separable 50-50 cost sharing.

14-2. Recreation. Shore protection projects (particularly those

featuring beachfill) are innately conducive to beach and shoreline

recreation activities. Provided that hurricane and storm damage

reduction benefits combined with incidentally generated recreation

benefits limited to an amount equal to the hurricane and storm damage

reduction benefits are sufficient in themselves for economic

justification, the Corps will propose undertaking the project as a

HSDR project (all recreation benefits are included in computation of

the overall benefit-cost ratio). If, in this limiting initial

evaluation, a greater amount of recreation benefits is required to be

combined with hurricane and storm damage reduction benefits in order

to demonstrate economic justification, the project is characterized as

being primarily for recreation. As such, it will not be proposed by

the Corps as a Federal undertaking, since recreation developments are

not accorded priority in Civil Works budget decisions. For the same

reason, separable recreation elements in a shore protection project

will not be recommended.

14-3. Hurricane and Abnormal Tidal Flood Protection.

 a. Federal Interest. Before enactment of WRDA 1986 (Public

Law 99-662), Federal interest in projects to protect against hurricane

and abnormal tidal flooding was established case-by-case based on

specific Congressional authorizations for Corps construction of such

projects. Although project works were usually similar to beach

erosion control works, hurricane protection projects were viewed as

being more like flood control projects. The 1986 Act, however,

authorizes Federal participation in HSDR projects and establishes

cost sharing for that category of projects. WRDA 1988 prohibits

expenditure of Federal funds on construction of HSDR projects unless

the community in which the project is located is then participating in

the National Flood Insurance Program (NFIP). Other than the magnitude

of storms considered there are now no real distinctions between shore

protection measures for hurricane, storm or tidal induced flooding and

erosion. (ER 1165-2-130)

 b. Definition. Hurricane and tidal flooding result from

abnormal rises in tidal levels due to storms and from the in-rush of

waters as a result of waves. 

 c. Cost Sharing. Federal participation in HSDR projects is

usually determined in the same way as for beach erosion control

projects--based on shoreline ownership, shore use, and type and

incidence of benefits as covered in paragraph 14-1.c. In the event a

HSDR project, in whole or part, provides protection from storm wave

action and/or tidal inundation only without providing any shoreline 

protection and/or beach erosion control, construction costs are

usually 65 percent Federal, unless the lands protected are Federal, in

which case construction costs are usually 100 percent Federal.
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14-4. Lake Flood Protection.

 a. Federal Interest. The extent of Federal interest in

projects to protect against lake flooding (e.g., the Great Lakes) is

not explicitly defined by legislation. Congressional authorizations

for Corps construction of such projects on a case-by-case basis (e.g.,

Great Salt Lake, Utah) is establishing the Federal concern. 

 b. Definition. Lake flooding results from storm-induced

inundation superimposed on the ordinary fluctuation of the lake level,

or inundation from abnormal rises in static water level due to

climatological changes (e.g., extended periods of abnormal

precipitation, temperatures and/or humidity) or tectonic changes.

14-5. Evaluation. Shore protection projects may derive economic

benefits from HSDR, land losses prevented, and increased recreation

values. Benefits are measured as the differences in these values

under conditions expected with and without the project.

14-6. Project Cooperation.

 a. Project Sponsor. Formal assurances of project cooperation

must be furnished by a municipality or public agency fully authorized

under state laws to give such assurances and financially capable of

fulfilling all measures of project cooperation.

 b. Requirements. Project cooperation requirements for all

types of shore protection projects (e.g., HSDR, BEC) are the same. 

The sponsor must agree to:

 (1) Provide to the United States all necessary LERRDs

determined by the Government to be necessary for the construction

(including periodic nourishment), OMRR&R of the project.

 (2) Provide or pay to the United States the cost of providing

all retaining dikes, waste weirs, bulkheads, and embankments,

including all monitoring features and stilling basins, that may be

required at any dredged or excavated material disposal areas required

for the construction (including periodic nourishment), and OMRR&R of

the project.

 (3) Contribute in cash, during project construction, the

appropriate percentage of project construction cost, the percentage to

be in accordance with existing law and based on shore ownership and

use at the time of implementation, provided that credit will be given

for the value of LERRDs.

 (4) Contribute in cash the appropriate percent of the cost of

periodic nourishment, where and to the extent applicable (up to 50

years), as required to serve the intended purpose(s).

 (5) Hold and save the United States free from all damages

arising from the construction (including periodic nourishment), and

OMRR&R of the project and any project related betterments, except for

damages due to the fault or negligence of the United States or its

contractors.

 (6) OMRR&R the completed project, or functional portion of the

project, at no cost to the United States in accordance with applicable 
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Federal and state laws and specific direction prescribed by the United

States.

 (7) Grant the United States the right to enter, at reasonable

times and in a reasonable manner, upon land which the local sponsor

owns or controls for access to the project for the purpose of

inspection, and, if necessary, for the purpose of completing,

operating, maintaining, repairing, replacing, or rehabilitating the

project.

 (8) Maintain public ownership and public use of the shore upon

which the amount of Federal participation is based for so long as the

project remains authorized.

 (9) Provide and maintain necessary access roads, parking

areas, and other public use facilities open and available to all on

equal terms.

 (10) Keep and maintain books, records, documents, and other

evidence pertaining to costs and expenses incurred pursuant to the

project to the extent and in such detail as will properly reflect

total project costs.

 (11) Perform, or cause to be performed, such investigations

for hazardous substances as are determined necessary to identify the

existence and extent of any hazardous substances regulated under the

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA), 42 U.S.C. 9601-9675, on all lands necessary for project

construction, and OMRR&R. 

 (12) To the maximum extent practicable, OMRR&R the project in

a manner that will not cause liability to arise under CERCLA.

 (13) Assume complete financial responsibility for all

necessary cleanup and response costs of any CERCLA regulated materials

located on any lands necessary for the construction, and OMRR&R of the

project.

 (14) Comply with the applicable provisions of the Uniform

Relocation Assistance and Real Property Acquisition Policies Act of

1970, Public Law 91-646, as amended by Title IV of the Surface

Transportation and Uniform Relocation Assistance Act of 1987 (Public

Law 100-17), and the Uniform Regulations contained in 49 CFR 24 Part

24, in acquiring lands, easements, and rights-of-way, and performing

relocations for construction, and OMRR&R of the project, and inform

all affected persons of applicable benefits, policies, and procedures

in connection with said Act.

 (15) Comply with all applicable Federal and state laws and

regulations, including Section 601 of the Civil Rights Act of 1964,

Public Law 88-352, and Department of Defense Directive 5500.11 issued

pursuant thereto as well as Army Regulation 600-7, entitled

Nondiscrimination on the Basis of Handicap in Programs and Activities

Assisted or Conducted by the Department of the Army.

 (16) Publicize floodplain information in the area concerned

and provide this information to zoning and other regulatory agencies

for their guidance and leadership in preventing unwise future

development in the flood plain and in adopting such regulations as may

be necessary to prevent unwise future development and ensure

compatibility with protection levels provided by the project.
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14-9

 (17) At least annually notify affected interests of the

limitations of the protection afforded by the project.

 (18) Participate in and comply with applicable Federal flood

plain management and flood insurance programs, and, for any project

for HSDR, prepare a flood plain management plan (FPMP) designed to

reduce the impacts of future flood events in the project area within

one year of signing a project cooperation agreement (PCA), and

implement such plan not later than one year after completion of

construction of the project.

 (19) Prevent future encroachments which might interfere with

proper functioning of the project.

 (20) Specific cases may also warrant assigning other

additional local responsibilities, such as providing appurtenant

facilities required for realization of recreational benefits.

14-7. Technical and Engineering Assistance on Shore Erosion. Section

55 of 1974 (Public Law 93-251) authorizes the Secretary of the Army,

acting through the Chief of Engineers, to provide technical and

engineering assistance to non-Federal public interests in developing

structural and nonstructural methods of preventing damages

attributable to shore and streambank erosion.

14-8. Emergency Protection.

 a. Section 14 of the Flood Control Act of 1946 (Public Law

79-526), as amended. Provides authority for the Secretary of the Army

to undertake emergency measures to prevent erosion damages to

endangered highways, public works, and non-profit public facilities

(paragraph 15-3). (ER 1105-2-100)

 b. Section 5 of the Flood Control Act of 1941 (Public Law 72-

228), as amended. Provides authority to provide emergency protection

of Federally-authorized and constructed hurricane and shore protection

works being threatened; and to repair and restore, at 100 percent

Federal cost, Federally-authorized and constructed hurricane or shore

protection structures damaged or destroyed by wind, wave, or water

action of other than an ordinary nature when, in the discretion of the 

Chief of Engineers, such repair and restoration is warranted for the

adequate functioning of the structure. (ER 500-1-1) Conditions under

which the Corps will repair and rehabilitate beach fills, and the

limitations of the work that will be undertaken, are set forth in the

following paragraphs.

 (1) Completed Project. To be eligible for Section 5 funds, a

beach fill project must be completed or must be a completed functional

element of a larger project. A beach fill project or functional

element is considered to be complete when it has been formally

transferred to the non-Federal sponsor for OMRR&R. Public Law 84-99

funds will not be used for uncompleted projects that are eroded by

storm events before they are formally transferred to the non-Federal

sponsor. Uncompleted projects that are eroded by storm events before

they are formally transferred to the non-Federal sponsor will be

restored to their design dimensions using Construction, General,

funds. Costs will be shared by the non-Federal sponsor as project

construction costs under the terms of the PCA.
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14-10

 (2) Extraordinary Storm. To be eligible for use of Section 5

funds, a beach fill project must be substantially eroded by wind,

wave, or water action of other than an ordinary nature. It is

difficult to precisely define an "extraordinary" storm. Therefore,

the determination of whether a storm qualifies as extraordinary will

be made by the Director of Civil Works in consultation with the

Assistant Secretary of the Army for Civil Works (ASA(CW)). The

severity of the storm will be discussed in the Project Information

Report which accompanies the Project Approval/Funding Request to the

Director of Civil Works. The report should include a description of

the damaging storm(s) in relation to established parameters for

coastal storms including shoreline recession, storm surge elevation

and duration, wave height, and wave interval. To the extent possible

a frequency should be estimated for these paramenters to provide a

basis to assess the storm's severity. A description of the storm in

relation to established classification systems should also be

presented.

 (3) Adequate Functioning. Under the provisions of Section 5,

as amended, and existing policy implementing the legislation (ER 500-

1-1), funds are to be used to restore adequate functioning of the

structure for storm damage protection. For a beach fill project, the

degree of project restoration eligible for funding under Section 5

versus periodic nourishment to be accomplished under the terms of the

PCA will be decided on a case-by-case basis by the Director of Civil

Works in conjunction with the ASA(CW). The need for funding under

Section 5 will be based on an assessment of the risk to life and

property and the need for immediate action. In no case, however, will

a beach fill project be restored with Section 5 funds beyond it prestorm condition. Considerations in making the assessment on degree of

restoration required will be discussed in the Project Information

Report and include the following:

 (a) Pre-Storm Conditions. The pre-storm condition of the

project must be described. A beach fill project is designed to a

certain level of erosion protection. In some cases, particularly

where a protective dune is included, it also provides storm surge and

wave damage protection. These design paramenters are generally

expressed as a frequency or probability. The pre-storm condition of

the project with respect to its ability to meet its design parameters

should be described. If the pre-storm condition of the project was

not at a level that would have provided the design level of erosion,

storm surge, or wave protection, the volume of material in the prestorm condition needed to restore a project to its design profile

should be estimated. Replacement of this volume of material would not

be eligible for funding under Section 5. Information should also be

presented on the nourishment history of the project, including the

estimated nourishment cycle and the date of the last nourishment.

 (b) Remaining Protection. The degree of erosion and storm

surge protection remaining is an important factor in assessing the

degree of restoration required. The severity of the event that would

cause significant damages with the remaining project should be

described. An assessment of the remaining property subject to damage

should also be presented.

 (c) Storm Season. Section 5 funds are to be used to restore

adequate functioning of a project to provide protection against future

storms. Therefore, an assessment of the risk of a subsequent damaging

storm is an important consideration in the use of emergency funds and 
EP 1165-2-1

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14-11

should be discussed in the Project Information Report. Damaging

coastal storms are more frequent during certain seasons (e.g., the

late summer and early fall hurricane season on the Gulf and east

coast). The need for immediate emergency action and the extent of

immediate restoration required will be influenced by whether the storm

causing the damage occurs early or late in the storm season. If it is

late in the storm season, and the risk of a subsequent storm in the

current season is low, there is no need for emergency action under

Section 5. In such cases, the project should be renourished under the

terms of the PCA.

 (4) Combined Emergency and Periodic Nourishment. In some

cases the non-Federal sponsor may wish to fully restore a beach fill

project where only a partial restoration is justified under the

provisions of Section 5. In these cases, a cost allocation

recommendation for the complete restoration project will be made

between emergency response under Section 5 (100 percent Federal cost)

and periodic nourishment under the terms of the PCA. This recommended

cost allocation and its rationale will be presented in the Project

Information Report.
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CHAPTER 15

STREAM BANK EROSION CONTROL

15-1. The Federal Interest. Remedial or corrective measures for bank

erosion should be considered in studies of regulating river flows. 

However, except in serious cases affecting the general public welfare,

and as otherwise stated below, the Federal interest is limited to bank

stabilization measures required as components of flood control,

navigation and other water resources developments. Costs of such

components will be shared in accordance with the basic policies

applicable to the project functions served. Justification may be

judged in terms of economic and environmental damages prevented or

improvement of economic and environmental values, whether the measures

are independent or component parts of larger systems of works.

15-2. Nature of Effects. Bank erosion causes loss of land and

monetary income therefrom, affects the tax base, pollutes streams,

depletes reservoir storage, silts up wetlands and estuaries, and

disrupts ecologic and economic activities. Control of such erosion

would alleviate these effects. However, practicable remedial

measures, limited to those that are economically justified, would

probably have only a limited effect on the overall impact of naturally

occurring bank erosion.

15-3. Special Continuing Authority.

 a. Authority. Section 14 of the 1946 Flood Control Act, as

amended, states that: "The Secretary of Army is hereby authorized to

allot from any appropriations heretofore or hereinafter made for flood

control, not to exceed $15,000,000 per year, for the construction,

repair, restoration, and modification of emergency streambank and

shoreline protection works to prevent damage to highways, bridge

approaches, and public works, churches, hospitals, schools and other

non-profit public services when in the opinion of the Chief of

Engineers such work is advisable: Provided, that not more than $1

million shall be allocated for this purpose at any single locality

from the appropriations for any one fiscal year." (Project size is

not limited; see c. below.)

 b. Applicablility. 

 (1) The purpose of work under this authority is to prevent

flood or erosion damage to endangered highways, highway bridge

approaches, and similar, essential and important public works, or

non-profit public facilities. (Not to prevent loss of land per se.) 

In addition to major highways systems of national importance, eligible

highways include principal highways, streets, and roads of significant

importance to the community, such as arterial streets, important

access routes to other communities and adjacent settlements, as well

as roads designated as primary farm to market roads. "Public Works"

means those essential facilities which serve the general public and

are owned and operated by the Federal, state or local government, such

as municipal water supply systems, and sewage treatment plants. 

"Non-profit public services" are structures or related services fully

open and available to the general public such as churches, and public

and private non-profit hospitals, and schools. (ER 1105-2-100) Also

eligible are known cultural resources whose significance has been

demonstrated by a determination of eligibility for listing on, or

actual listing on, the National Register of Historic Places and/or 
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15-2

equivalent State register. The cultural resource must be open to all

on equal terms, and meet all other Section 14 eligibility criteria.

 (2) Work under this authority does not encompass repair,

restoration or modification of the facility to be protected--needed

because of damages already sustained by reason of progressive erosion. 

That kind of work, and the related costs therefor, remain the

responsibility of the owner of such facility. Work designed solely to

prevent land loss or the protection of non-essential, temporary or

mobile facilities is not eligible for implementation under the Section

14 authority.

 c. Project Cooperation. The flood control cost sharing

established in Section 103(a) of the Water Resources Development Act

(WRDA) of 1986 (Public Law 99-662), as amended by Section 202(a) of 

WRDA 1996 (Public Law 104-303), is applicable to projects under this

authority. The project sponsor/beneficiary must provide needed lands,

easements or rights-of-way for construction and subsequence

maintenance of the project works and, to the extent these are new

costs therefor (the values of lands already owned for purposes

associated with the facilities to be protected are excluded), these

are included in project costs and count toward the sponsor's minimum

25 percent cost sharing responsibility (35 percent for those Section

14 projects which are approved for construction by the division

commander after 12 October 1996 unless these projects have been

specifically authorized in or prior to WRDA 1996). The project

sponsor must agree to maintain the completed project works. In

addition to the general cost sharing requirements, the non-Federal

sponsor must agree to bear all other project costs exceeding the $1

million limit on Federal expenditures.

15-4. Specific Project Authority. Other single-purpose stream bank

erosion control projects are potentially possible, if specifically

considered and authorized by the Congress. Section 14 of the 1946

Flood Control Act, as amended, provides clear indication of Federal

interest in one form of control measures--those required to prevent

damages to public works and non-profit public service facilities. The

$1 million limitation set by Section 14 is considered to be not so

much a limitation of that interest as it is of the extent to which

Congress is willing to have the Corps of Engineers proceed without

detailed Congressional oversight. Hence, where Federal costs in

connection with a project to address Section 14 kinds of problems

would exceed $1 million (and the sponsor could not accept the excess

costs), the Corps could appropriately address a recommendation to

Congress for specific authorization. Corps studies may not proceed on

this basis, however, unless there is specific Congressional direction

for such study. There may be other kinds of problems (other than

endangered public or public-use facilities) where unchecked stream

bank erosion could be construed as having potentially serious

consequences affecting the general public welfare. Corps

consideration of these would also be dependent upon specific

Congressional authorizations.

15-5. Project Implementation. Responses to local requests for

assistance under the Section 14 program (i.e., initial site

inspection, coordination with local interests, identification of a

potential Federal interest, and decision to initiate a study) are

completed entirely at Federal expense using funds from the Section 14

Coordination Account. The study and design of Section 14 projects are

conducted in a single stage, the Planning and Design Analysis (PDA),

and are cost shared. The PDA consists of all planning and design
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activities required to demonstrate that Federal participation in a

project is warranted, and completes all activities to award the

construction contract. The PDA begins with issuance of funds for

initial analysis and ends (within a 12 month target time) with the

division request for construction funds. HQUSACE role during the

implementation process is limited to assessing the financial impact of

funding requests on the Section 14 program, and the routine

acknowledgement of construction funding commitment. HQUSACE monitors

policy compliance and technical adequacy by way of audits at periodic

program review meetings (i.e., there is no HQUSACE policy or technical

review or approval during the implementation process). (ER 1105-2-

100)

15-6. Technical and Engineering Assistance on Streambank Erosion. Section 55 of Public Law 93-251 authorizes the Secretary of the Army,

acting through the Chief of Engineers, to provide technical and

engineering assistance to non-Federal public interests in developing

structural and non-structural methods of preventing damages

attributable to shore and streambank erosion.

15-7. Streambank Erosion Resulting from Project Construction and

Operation. See paragraph 11-8. 
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CHAPTER 16

HYDROELECTRIC POWER

16-1. Authority and Corps Responsibilities. Through various

statutes, Congress has directed consideration of hydroelectric power

in water resource development plans. The Corps formulates

comprehensive plans which include development of hydroelectric power

by a non-Federal sponsor. Congress has authorized projects that

involved hydropower development on the basis of these recommendations. 

 a. General Responsibilities. The various functions of

multiple-purpose water resource development projects are interrelated,

and operation for individual functions is coordinated with operation

for all functions. The Corps is responsible for insuring the maximum

sustained public benefits from each of its projects for all desirable

purposes, including power, as integral parts of comprehensive plans

for the regulation, control, conservation and utilization of water

resources. Consistent with the project authorizations, this is a

continuing responsibility throughout the planning, design,

construction, and operation phases. Particular attention is given to

the operation of projects to obtain the benefits which were

anticipated during the planning stages. Within the scope of projects

as authorized, the Corps is responsible for determining the proper

design and plan of operation for each of its projects so that maximum

sustained public benefits will be obtained. Valuable assistance is

obtained from other agencies on special aspects such as expected

market for power and the value of the power. The Corps must review

data and recommendations furnished by others and make such additional

investigations as are necessary so that its responsibilities are

fulfilled.

 b. Additional Responsibilities. Congressional authorizations

include the responsibility for the Corps to operate projects under its

jurisdiction for all authorized purposes. The Corps is responsible

for determining the costs and annual charges of recommended plans of

improvement, allocation of those costs and charges to functions served

(except where provided otherwise by law), maintaining cost accounting

records, maintaining records of project operations, and furnishing

others such information as required or appropriate. 

16-2. Evaluation. The value of power to the users is measured by the

amount that they should be willing to pay for such power. The usual

practice is to measure the benefit in terms of the cost of achieving

the same result by the most likely alternative means that would exist

in the absence of the project. Project capacity benefits are based on

the cost of the most likely alternative means of constructing a like

amount of capacity financed on the same basis as the Federal project. 

Energy benefits are based on the expected operating costs of the most

likely means of producing a like amount of energy in the absence of

the Federal project. Energy benefits assume unregulated fuel prices

unconstrained by existing long term contracts and may, where

supported, reflect increased costs resulting from relative scarcity. 

Operating experience indicates that the installed capacity in excess

of that considered dependable may have a value. This "intermittent"

power capacity is given a value when system operation studies show

such capacity has value. Simplified procedures are used for small

scale hydroelectric projects (25 MW or less) so that plans for

environmentally and economically sound projects may be reported in a

timely fashion. (18 CFR 713.601)
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16-3. Cost Sharing. In multiple-purpose reservoirs under the

jurisdiction of the Corps, the Chief of Engineers is responsible for

determining the costs allocated to the hydroelectric power function,

except where otherwise required by law. It is Corps policy that all

purposes in a multiple-purpose project should share equitably in the

benefits of multiple-purpose development and that no purpose should be

subsidized by other project purposes to enable sale of services at

lower rates. By the interagency agreement of 12 March 1954, the

Federal agencies, Departments of the Interior, Army, and Federal

Power Commission (now Federal Energy Regulatory Commission (FERC))

have accepted the Separable Costs-Remaining Benefits (SCRB) method of

cost allocation, as a preferred method of distributing project costs. 

This method permits equitable allocations of project costs to power

for use as a basis for establishing power rates. 

 a. When development of the power function is funded out of

project appropriations, the cost (including OMRR&R) allocated to power

is fully repaid to the U.S. Treasury by revenues collected by the

marketing agency. This is in accord with existing law (see paragraph

16-5) as referenced in subsection 103(c)(1) of WRDA 1986.

 b. When development of the power function is funded up-front

by a non-Federal sponsor (the preferred option), the allocated

investment cost will be recovered by the sponsor under a tri-party

agreement between the sponsor, the Corps and the appropriate Federal

marketing agency, either through receipt of the developed power or (if

specifically authorized by Congress) by repayment from revenues

collected by the marketing agency through sale of the power. The

allocated share of Corps project OMRR&R costs funded from project

appropriations will be repaid to the U.S. Treasury accordingly, either

by assessments to the sponsor as costs are incurred or out of the

power revenues collected by the marketing agency.

 c. A non-Federal sponsor will be required to contribute 50

percent of preauthorization feasibility study costs, during the course

of studies. 

16-4. Coordination with Other Agencies.

 a. The FERC. The FERC, in carrying out its functions under

the Federal Power Act, is concerned with all the elements involved in

determining power values. The Corps collaborates with the FERC in

evaluating power benefits on the basis of unit power values developed

by that agency. The Corps Hydroelectric Design Center in the North

Pacific Division works closely with FERC on development of power

values and can provide assistance, upon request, to Corps FOAs.

 b. Others. Federal, state and local agencies which would have

an interest in the power function or the possible effect of the

contemplated plan, are consulted. Views of interested and affected

agencies are considered and covered in Corps reports. Representatives

of the marketing agency are consulted.

 c. Project Rewind and Uprating. Consultation with other

agencies is required for rewind and uprating of hydroelectric

generators carried out in the maintenance, rehabilitation, and

modernization of existing generating facilities at water resources

projects. The Secretary of the Army shall provide affected state,

tribal, and Federal agencies with a copy of the proposed

determinations that the proposed actions are economically justified

and financially feasible; will not result in significant adverse
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affect on other project purposes; will not result in significant

adverse environmental impacts; will not involve major structural or

operational changes in the project; and will not adversely affect the

use, management, or protection of existing Federal, state, or tribal

water rights. If the agencies submit comments, the Secretary shall

accept those comments or respond in writing to any objections raised

to the proposed determinations. (Section 216 of WRDA 1996)

16-5. Marketing of Corps-Produced Power. 

 a. Under the provisions of Section 5 of the Flood Control Act

of 1944 (Public Law 534, 78th Congress) and other acts, power

developed at projects under the jurisdiction of the Chief of

Engineers, which is surplus to project needs, is turned over to the

Secretary of Energy for marketing. Law requires that the Secretary of

Energy shall transmit and dispose of Federal power and energy so as to

encourage the most widespread use at the lowest possible rates to

consumers, consistent with sound business principles. It also provides

that, in the sale of power, preference is given to public bodies and

cooperatives. Agencies of the Department of Energy which market the

power are: The Bonneville Power Administration, Southwestern Power

Administration, Southeastern Power Administration, the Western Area

Power Administration and the Alaska Power Administration. Rates for

sale of power to recover allocated costs are established by the

marketing agency of the Department of Energy and approved by the FERC. 

The marketing agency is required to so establish the rates as to

recover the cost of producing and transmitting the power, including

repayment of the Federal investment, over a reasonable period of years

(50 years is established by the Secretary). (ER 1130-2-510)

 b. If development of the power is funded by a non-Federal

sponsor, the power must still be marketed by the appropriate Federal

marketing agency pursuant to Federal law. Repayment of the sponsor's

investment will be pursuant to a tri-party agreement between the

sponsor, Corps and marketing agency (the period of recovery should not

exceed 50 years).

 c. Marketing of power produced from FERC licensed power plants

at Corps projects is the responsibility of the licensee. The Corps

and the Federal marketing agencies are not involved in the related

marketing arrangements. See paragraph 16-9.

16-6. Pumped Storage Power. Possibilities for pumped storage

developments are investigated in pre- and postauthorization planning

studies for the optimum development of water resources. Where

potentials exist, the engineering and economic aspects are reported to

a degree consistent with the nature and scope of the report.

 a. Integral Facilities. Integral facilities (usually a

conventional powerhouse with reversible units) are considered in

reports and recommended as a part of a Federal project when such

facilities are justified and represent the best development of the

site. Adjoining plants (usually detached plants using the reservoir

for an afterbay) which are similarly qualified, and the operations of

which would have a significant interrelation with other project

operations, may also be included in the recommended plan.
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 b. Adjoining Plants. Reports also take note of other possible

adjoining pumped storage plants which might be developed near a

Federal project but which do not appear to require operation as an

integral part of the proposed Federal project. They are not generally

included as part of a Federal plan. Non-Federal interests may wish to

consider the construction of adjoining plants that could be operated

relatively independently of Federal project operations. Such action

requires application to the FERC for license under the provisions of

the Federal Power Act. The potential effect of such proposals on

Federal project operations is considered incidental to processing of

license applications. Non-Federal interests may, however, be

furnished readily available information concerning such possibilities

to facilitate their preparation of applications for licenses.

16-7. Provision for Future Power. Under continuing Congressional

authorities, penstocks and other facilities adapted to possible future

use in the development of power may be installed in any dam when

approved by the Secretary of the Army on the recommendation of the

Chief of Engineers and FERC. The decision to recommend provisions for

future power requires consideration of the additional cost involved,

the probability of future installation and other factors concerning

the potential and feasibility of the power development and

marketability of its output. The investigation should indicate the

minimum provisions, if any, required to avoid precluding future

development. If the minimum provision is a block-out at a dam to

accommodate future hydropower installation, then it is good

engineering practice to incorporate a block-out in the design and

construction of the authorized project in coordination with FERC. 

Field level coordination is undertaken with FERC concerning economic

feasibility and with the appropriate Department of Energy marketing

agency for hydropower provision other than a block-out. The actual

costs for this type of provisions plus interest (compounded, at the

initial Corps project construction rate) shall, if power is ultimately

developed, be included in the investment costs allocated to that

function and subject to repayment (see paragraphs 16-3a and b). If

the power is developed under FERC license (see paragraph 16-9), an

equivalent amount will be assessed to the licensee as a precondition. 

This is separate from the charge assessed by FERC for use of the

Federal dam as required by the Federal Power Act.

16-8. Control of Releases from Power Plants.

 a. Effects of Releases. Reservoir releases to provide peak

power service may result in a substantial change in the regimen of a

stream. In some cases, the change from relatively steady rates of

flow to frequent fluctuation may cause undesirable effects. 

Fluctuation may reduce the benefits from other reservoir functions,

such as recreation, pollution abatement, and water supply.

 b. Mitigation. Positive means to prevent or reduce adverse

effects are considered in planning and project operation phases. 

Tangible and intangible benefits may be obtained with measures such

as: modification in power output; location of a re-regulating

reservoir downstream; or acquisition of additional interest in lands.

 c. Minimum Releases. Determination of the project power

capabilities will involve consideration of rates and volume of minimum

releases required for downstream purposes. Consideration of

downstream effects will also include requirements for limiting the

range and rate of stage and discharge fluctuations. Continued

attention is given to the effects of releases downstream and to
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possibilities for modifications in project operations which will have

beneficial results.

16-9. Non-Federal Development at Corps Projects. Non-Federal

hydroelectric power developments may be constructed at Corps projects

through FERC licensing procedures (paragraph 24-12). As a general

policy, development of suitable non-Federal hydropower at Corps

projects is encouraged. In evaluating proposals for such non-Federal

development, total power potential of a site must be considered. This

potential can be developed in stages as the local and regional demand

for electric power dictates. However, the first stage design and

construction should include provisions for future expansion of power

facilities compatible with the total power potential of the site and

other project uses. The Corps in reviewing an application for permit

will not object to issuance of a preliminary permit by FERC for a

feasibility study of hydropower development at Corps projects. FERC

is informed of any planned or concurrent Corps hydropower study

covering the same site as the applicant's study, but the status of

Corps studies should not be an impediment to non-Federal hydropower

development at Corps sites:

 a. Potential New Project (No Existing Dam). Where potential

apparently exists, possible development of hydroelectric power should

be evaluated in Corps reconnaissance phase studies of new project

proposals. Such studies are entirely at Federal expense; if the

evaluation effort supports a conclusion that hydropower development

could be justifiable, the reconnaissance studies will have the further

goal of identifying a non-Federal sponsor willing to costs share,

50-50, project feasibility studies including hydropower. Upon

completion of feasibility studies in which hydropower development is

considered and found feasible, the resulting preauthorization report

will not recommend Federal development of the power unless it would be

impractical for non-Federal interests to develop it. Any

recommendation for Federal development will be founded on recognition

that priority for such development is afforded only to developments

for which a non-Federal sponsor willing to fund the investment costs

during the period of construction (with later repayment out of power

revenues) is available.

 b. Addition of Hydropower at Existing Dams. Where Federal

development of hydropower is specifically authorized as an element of

a Corps project, FERC will not issue a license. Arrangements for

construction, including non-Federal financing, are reserved to the

Corps. In the absence of any specific hydropower provisions in the

project authorization, FERC licensing procedures have proven to be the

choice of non-Federal sponsors. (Such licensing is consistent with

Corps policy subject to provisions expressed in ER 1130-2-510.)

 c. Special Studies. Special studies, such as those undertaken

pursuant to Section 216 of the 1970 Flood Control Act, that identify

hydropower potential from the reformulation of an existing project,

should also identify a non-Federal sponsor for development of that

potential. Studies will be programmed and cost shared in the same way

as studies responsive to Congressional directives (changes in existing

authorized project purposes, so as to include hydropower, require

Congressional authorization).

16-10. Corps Developments at Non-Corps Sites. The Corps has no

general legislative authority to construct hydroelectric facilities at

non-Federal dams. However, under specific congressional authorities,

the Corps has constructed multiple purpose projects which have
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included hydropower development at other (non-Corps) Federal agency

sites. The New Melones project on the Stanislaus River in California

is an example of such an instance. The project was constructed by the

Corps for the Bureau of Reclamation. Marketing of power from this

project is accomplished, as from Corps developments at Corps projects,

by the Department of Energy--in this case through the Western Area

Power Administration.
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CHAPTER 17

RECREATION

17-1. Authorities.

 a. Section 4 of the Flood Control Act of 1944, as amended. This Act authorized the Chief of Engineers "...to construct, maintain,

and operate public park and recreational facilities at water resource

development projects under the control of the Secretary of the Army,

and to permit the construction, maintenance, and operation of such

facilities." It also provides that the water areas of projects shall

be open to public use generally for boating, fishing, and other

recreational purposes, and ready access to and exit from areas along

the shores of such projects shall be maintained for general public use

when in the public interest.

 b. The Federal Water Project Recreation Act of 1965 (Public

Law 89-72), as amended. This act established development of the

recreational potential at Federal water resources projects as a full

project purpose.

 (1) Section 2(a) specifies that benefits for recreation should

be included in the economics of a contemplated project, provided that

non-Federal public entities agree (letter of intent) to participate in

the recreation development. All purposes share in the savings from

multiple-purpose development.

 (2) Section 3(b) provides for inclusion, in recommendations

for project authorization, of land acquisition to preserve the

recreation potential of the project for a 10-year period, when no

local sponsor can be found. (It is current policy, however, that

lands will not be acquired to preserve their potential for recreation

if there is not a willing local sponsor at the time of project

construction.)

 (3) Section 6(e) excepts certain other sections of the Act

from applying to specified projects including local flood control,

beach erosion, small-boat harbor and hurricane protection projects.

 (4) Section 9 limits the cost allocated to recreation and fish

and wildlife enhancement (excepting special types) to no more than 50

percent of the sum of the allocations to all project purposes.

 (5) The Act further requires beneficiaries to bear part of the

costs of installing and all the cost for managing recreation

developments at Federal water resources projects. It also sanctions

collection of use fees for services by non-Federal agencies

administering the recreation resources of Federal projects. (ER

1130-2-400, ER 1165-2-400)

 c. The Water Resources Development Act of 1986 (Public Law

99-662). This Act defines the basis for sharing the financial

responsibilities in joint Federal/non-Federal development, enhancement

and management of recreation and fish and wildlife resources at

Federal water resource development projects.

 d. The Water Resources Development Act of 1990 (Public Law

101-640). Section 313 of this Act provides that any maintenance,

repair, rehabilitation, or reconstruction which results in a change in

configuration of a structure should be carried out in a manner which,
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to the maximum extent practicable, will not adversely affect any

existing recreational use even if the recreational use was not an

authorized purpose. If the recreation uses are adversely impacted,

they may be restored or alternatives provided for comparable

recreational use. Costs incurred shall be allocated to recreation and

shall be payable by the beneficiaries of the recreation.

 e. The Water Resources Development Act of 1992 (Public Law

102-580). Section 203 of this Act authorizes the Secretary of the

Army to accept contributions of cash, funds, materials, and services

from anyone except project sponsors for a water resources project for

environmental protection and restoration or for recreation. Section

225 authorizes the Secretary of the Army to develop and implement a

program to accept contributions of funds, materials, and services from

non-Federal public and private entities to be used in managing

recreation facilities and natural resources.

17-2. Natural Resources Management Program Mission. 

 a. The Army Corps of Engineers is the steward of lands and

waters at Corps water resources projects. Its natural resources

management mission is to manage and conserve those natural resources,

consistent with ecosystem management principles, while providing

quality public outdoor recreation experiences to serve the needs of

present and future generations.

 b. In all aspects of natural and cultural resources

management, the Corps promotes awareness of environmental values and

adheres to sound environmental stewardship, protection, compliance and

restoration practices.

 c. The Corps manages for long-term public access to, and use

of, the natural resources in cooperation with other Federal, state and

local agencies as well as the private sector.

 d. The Corps integrates the management of diverse natural

resources components such as fish, wildlife, forest, wetlands,

grasslands, soils, air, and water with the provision of public

recreation opportunities. The Corps conserves natural resources and

provides public recreation opportunities that contribute to the

quality of American life. (ER 1130-2-540, ER 1130-2-550)

17-3. Development of Outdoor Recreation Facilities. Outdoor recreational facilities are provided at Corps reservoir projects and at

certain non-reservoir projects subject to requirements of local

cooperation. However, if a recreation feature could be built at the

same location without the Corps reservoir or non-reservoir project and

not lose any of its utility or value, it can "stand alone" and the

Corps should not participate in its development. In formulating water

resource plans for reservoir projects, consideration is given to

alternative scales of recreation development ranging from minimum

facilities to optimum development. In the absence of a recreation

cost sharing agreement with a non-Federal sponsor, Federal provision

of recreation facilities at reservoirs is limited to the minimum

needed for public health and safety. Such "minimum facilities" should

not exceed provision of a turnaround, guard rails, barriers, and

minimum sanitary facilities at existing road ends. All costs for such

minimum facilities will be allocated to project purposes and shared

with non-Federal sponsors on the same basis as those purposes. No

facilities are provided at non-reservoir projects or at flood control

impoundments creating incidental minor pools in the absence of local
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participation. Recommendations for cost shared recreation development

shall not exceed the scale for which a qualified non-Federal sponsor

will furnish a written letter of intent of participation. Cost shared

recreation development is also limited to those facilities included in

the approved facilities list contained in ER 1165-2-400. Non-Federal

sponsors must furnish their share of costs during the course of

development; subsequent payment over time is not acceptable. 

Recreation developments at Corps water resources projects shall be

available for the general public use on an equal basis. (ER 1105-2-

100, ER 1165-2-400) 

 

 a. Recreation Development at Non-reservoir Flood Damage

Reduction and Navigation Projects. Recreation facilities at

non-reservoir projects, including new non-reservoir (non-lake)

structural flood control projects (i.e., channel and/or levee and

floodwall projects, and dry bed reservoirs) and harbor projects, must

comply with the following policies.

 (1) Recreation developments must be within the lands acquired

for the basic project, except for separable lands required for access,

parking, potable water, sanitation and related developments for

health, safety and public access. The cost of lands provided by nonFederal interests for the basic project are not included for

recreation cost sharing purposes. Fee title to land is required for

recreation development. However, in the case where the basic nonreservoir project and its associated lands would provide a recreation

opportunity but the approved interest in the land acquired for the

basic project is not sufficient to allow for recreation use of the

land or to allow for development of recreation facilities, increasing

the interest in real estate (e.g., from permanent easement to fee) may

be included as part of a cost shared recreation development, and

credit for recreation cost sharing for any incremental costs of

increasing the real estate interest in land within the boundary

acquired for the basic non-reservoir project is permitted. The nonFederal sponsor for the recreation development would provide the land

in fee for the recreation development and receive appropriate credit

for the increment of value above the value of the real estate interest

approved for the basic project. This policy does not apply to the

provision of increased real estate interest for recreation development

for temporary construction easements or for permanent easements for

disposal and borrow areas and Federal participation in the recreation

development of these areas will not be recommended. Operation,

maintenance, repair, replacement, and rehabilitation (OMRR&R) costs

are the responsibility of the non-Federal sponsor.

 (2) Recreation will not influence formulation of the

structural project which must attain a benefit/cost ratio greater than

unity without recreation. Non-lake structural flood control projects

are to be formulated to assure identification of the National Economic

Development (NED) flood control project. Recreation features at nonlake structural flood control projects must be incrementally

economically justified. However, nonstructural flood reduction

projects can be justified on the basis of their combined NED effects

including recreation benefits. Section 73 of Public Law 93-251

provides that all benefits associated with new uses of flood plain

lands, including recreation, are to be fully considered when

evaluating nonstructural measures.
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 (3) The level of recreation development at a structural

project may not increase the Federal project cost by more than 10

percent without approval of the Assistant Secretary of the Army (Civil

Works) (ASA(CW)) prior to issuance of the district commander’s report. 

Recreation development at nonstructural projects is not limited to the

above 10 percent constraint applicable to structural type projects. 

Separable recreation costs at nonstructural projects shall be in

conformance with Section 9 of Public Law 89-72.

 (4) Recreation development, including separable lands required

for public access, health, and safety, are cost shared on a 50 percent

basis between Federal and non-Federal public interests.

 (5) Appropriate facilities for cost sharing should be in

accordance with the approved list in ER 1165-2-400 which includes the

approved list of recreation facilities that may be cost shared at new

non-lake projects. Recreation facilities that are not on the approved

list, are more elaborate than permitted, do not meet the "stand-alone"

principle, exceed the ten percent limit rule, are not on lands

required for the basic flood control project, or cannot be

economically justified, may be recommended as the locally preferred

plan. The cost of planning and implementation of facilities provided

as the locally preferred plan must be financed entirely by the nonFederal sponsor and cannot be included in the benefit/cost ratio, and

will not be credited against the sponsor's share of cost shared

facilities. In the case where there is a locally preferred flood

control plan that includes a greater land base than required by the

NED flood control plan (extending the project beyond the real limits

of the NED flood control plan), the Federal Government can participate

in the recreation development of the locally preferred plan but such

participation will be limited to appropriate facilities shown on the

approved list in ER 1165-2-400 and can not exceed ten percent of the

Federal share of the cost of the structural NED flood control plan.

 (6) While most recreational facilities at Corps non-lake

projects would "stand alone", the Corps will participate in facility

development to provide access to and along the project features. The

development of these facilities should not involve extensive

structural modification of the terrain and may include rest areas and

picnic facilities. Ideally these facilities would be a part of a

larger non-Corps recreation plan (e.g., a regional trail system) or

provide access to other non-Federal recreation facilities or areas.

 (7) Except for jetty sport fishing facilities, no funds are to

be spent planning or developing recreation facilities at harbor

projects.

 b. Shore Protection Projects. Federal participation in shore

protection projects is limited to construction and sharing in the

costs of construction for hurricane and storm damage reduction (HSDR)

measures, based on ownership of shorefront properties and the extent

of public use (see Chapter 14). In connection with these projects,

any associated recreation facilities developments are entirely

non-Federal responsibilities except on Federally-owned shores. (ER

1165-2-130)

 c. Facilities at Jetties, Groins and Breakwaters. Corps

policy is to operate and maintain (O&M) these structures for their

navigation and shoreline protection functions in a manner that does

not enhance or encourage recreational or other public use, unless a

non-Federal entity has sponsored recreation. Where non-Federal
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interests do not choose to sponsor and cost share in related

recreation facilities, the Corps is authorized to provide "minimum

facilities for public health and safety." (ER 1130-2-520)

 d. Facilities at Completed Projects. When available, funds

for cost shared recreation development at completed projects and

correction of sanitary deficiencies are obtained from the Operations

and Maintenance General (O&MG) account. Currently, priority is not

accorded to budgeting O&MG funds for new cost shared recreational

developments. Under Section 926(b) of WRDA 1986 (Public Law 99-662),

the Corps has sufficient authority to acquire additional lands for

public park and recreation purposes. Were such lands provided by

local interests, the value of those lands would be credited towards

the local share of development costs. Just as for recreation

developments in connection with initial project implementations,

expenditure of Federal funds for the addition of recreation at

completed projects would require that a non-Federal public agency

enter into an agreement with the Corps to pay for not less than 50

percent of the cost of development and assume operations, maintenance

and replacement responsibility for the new facilities. Upgrading

sanitary facilities to meet Federal and state health standards may be

undertaken at 100 percent Federal cost where existing recreation areas

are managed directly by the Corps.

 e. Reallocation of Reservoir Storage for Recreation. Many

projects, including those for which recreation facilities may have

been included under general provisions of the Flood Control Act of

1944, as amended, do not have separable storage costs for recreation. 

In these circumstances recreation is an authorized project purpose but

it is secondary, as far as storage operation is concerned, to project

functions for which the storage was formulated. Any reallocation of

reservoir storage to provide more stable recreation levels that would

have a significant effect on other authorized purposes, or that would

involve major structural or operational change, requires Congressional

authorization. Costs reallocated to recreation will be established as

the highest of the benefits or revenues foregone, replacement costs,

or the updated cost of the storage, will be treated as a separable

cost, and will be subject to non-Federal cost sharing. (ER

1105-2-100)

 f. Plan for Future Recreation Facilities. Optimally, each

primary or major recreation area is initially developed to a level of

two-thirds of its expected ultimate potential. Master plans are

maintained and updated showing facilities planned for future

development to meet the ultimate project recreation potential, to

achieve maximum consistency with authorized plans, and to insure that

planned future development is fully responsive to current recreation

and resource management policies. Lands designated for future

recreation development may be utilized for appropriate interim uses

until needed. (ER 1130-2-550, ER 1165-2-400)

 g. Recreation Development at Ecosystem Restoration Projects. 

The Corps may participate in the provision of cost shared outdoor

recreation facilities at single purpose ecosystem restoration projects

and projects under the authorities of Section 1135 of WRDA 1986

(Project Modifications for Improvement of the Environment), Section

204 of WRDA 1992 (Projects for Protection, Restoration, and Creation

of Aquatic and Ecologically Related Habitats, including Wetlands), and

Section 206 of WRDA 1996 (Aquatic Ecosystem Restoration Projects),

subject to compliance with three major criteria: (1) philosophy and

checklist; (2) economic justification; and, (3) the ten percent limit

rule.
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 (1) Philosophy and Checklist.

 (a) Philosophy. The Federal interest, for the purpose of

Federal investment, is determined from the nature of the benefits

derived from a facility or activity. Recreation at ecosystem

restoration projects should not only be compatible, but also enhance

the visitation experience by taking advantage of the natural values. 

The social, cultural, scientific, and educational values should be

considered within the framework of the ecosystem restoration project

purpose. For example, while educational values, through such things

as nature study and interpretive signs, can be an integral part of

ecosystem restoration projects, this does not mean it is appropriate

to build recreation/visitor facilities that overwhelm the natural

values. The recreational experience should build upon the ecosystem

restoration objective and take advantage of the restored resources

rather than distract from them.

 -- Formulation. Ecosystem restoration projects should be

formulated to address significant resources and must be justified

through a determination that the combined monetary and non-monetary

value of the last increment of benefits or losses prevented or

replaced exceeds the combined monetary and non-monetary cost of the

last added increment of the ecosystem restoration measure. Recreation

development will not influence that formulation. Ecosystem and

recreation projects proposed for construction at existing Corps

projects should be consistent with the approved Master Plan.

 -- Recreation Development. Recreation development at an

ecosystem restoration project should be totally ancillary (see

paragraph 5-8.e). Recreation facilities may be added to take

advantage of the education and recreation potential of the ecosystem

project, but the project cannot be specifically formulated for a

recreation purpose. The recreation potential may be satisfied only to

the extent that recreation does not diminish the ecosystem restoration

purpose. Where an ecosystem restoration project provides critical

habitat for a Federally listed threatened or endangered species,

recreation facilities at that project should be precluded in the

critical habitat and limited to only those facilities needed for

minimum health and safety and/or natural resources interpretation. 

Where appropriate, recreation at ecosystem restoration projects should

be designed for day use only, precluding the need of extensive night

lighting. Whenever conflicts occur between the ecosystem restoration

purpose and recreation, ecosystem restoration shall have priority. 

Plans should seek to optimize public use in harmony with the

objectives of the restoration project over the period of analysis. 

Without a non-Federal sponsor to cost share recreation, ecosystem

restoration projects should not encourage public use.

 -- Vendibility. If recreation benefits are vendible (type

usually provided by private enterprise), then the facility should be

provided by others.

 -- Stand-alone Principle. Simply stated, if a recreation

feature could be built at the same location without the ecosystem

restoration project and not lose any of its utility or value, it 

stands alone. When facilities stand alone, the Corps should not

participate in their development.

 -- Access, Health and Safety. While most facilities at

ecosystem restoration projects would "stand-alone" (without Corps 
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participation) the Corps will participate in facility development to

provide access to and along the project features. The development of

these facilities should not involve extensive structural modification

of the terrain and may include rest areas and picnic facilities. 

Ideally these facilities would be a part of a larger non-Corps

recreation plan such as a regional trail system or provide access to

other non-Federal recreation facilities or areas.

 (b) Check List of Recreation Facilities. Corps regulations,

ER 1165-2-400 and ER 1105-2-100, include a checklist of facilities

which may be provided in recreation developments at all types of Corps

water resource projects. The referenced list is all encompassing and

it includes not only facilities that can be cost shared, but those

minimum facilities that may be included at lake projects as a part of

the joint cost as well as those that can be constructed by others at

non-Federal expense. This list is applicable for lake projects

(reservoirs) and the associated recreation experience. Approved

recreation facilities which may be cost shared at new ecosystem

restoration projects will also be identified on the aforementioned

checklist when the ERs are updated. Exceptions to the approved

recreation facilities must be fully justified and approved by CECW-P

prior to submitting the project report. The scope of the recreation

development must also be appropriate. Facilities to be cost shared

are limited to standard designs consistent with the natural

environment of the surrounding area but should not include

embellishments such as decorative stone work planters, elaborate

designs or be ostentatious. Recreation development for projects 

identified in paragraph 17-3.g above must be provided on the lands

needed and acquired for the basic ecosystem restoration project,

except that additional recreation land may be acquired if needed for

access, parking, potable water, sanitation and related development for

health, safety and public access.

 (2) Economic Justification. Reports recommending recreation

development will clearly present the formulation and justification of

the recreation plan to be recommended for Federal implementation. 

Federal participation should be limited to support development that

capitalizes on the recreation potential afforded by the ecosystem

restoration project. Incremental justification of recreation features

will be demonstrated in the report. The addition of recreation to the

plan will not influence formulation of the basic ecosystem restoration

project which must produce monetary and/or non-monetary benefits which

justify the monetary and/or non-monetary costs without recreation. 

The report will include a description of the competing recreation

facilities, their existing and expected future use with and without

the project, and the unfulfilled demand for the recreation facilities

as identified in such documents as the Statewide Comprehensive Outdoor

Recreation Plan. Recreation benefits, costs and cost sharing must be

shown separately.

 (3) The Ten Percent Limit Rule. The level of financial

participation in recreation development by the Corps at an otherwise

justifiable project may not increase the Federal cost of the ecosystem

restoration project by more than ten percent without prior approval of

the ASA(CW). The policy to limit the Federal share in recreation

development was first established in a 2 June 1996 memorandum from the 

ASA(CW). The purpose of the policy is to allow concentration of

scarce Civil Works funds on high priority features rather than

recreation development. The ten percent limit should be viewed as an

upper limit on Federal cost sharing and not as a goal for

expenditures. The cost of recreation facilities to be cost shared

would normally be less than the ten percent limit.
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 (4) Locally Preferred Plan. A non-Federal sponsor for

recreation development may desire to include recreation facilities

that are not on the checklist, are more elaborate than permitted, do

not meet the "stand alone" principle, exceed the ten percent limit

rule, are not on lands required for the basic ecosystem restoration

project, or cannot be economically justified. Such facilities may be

recommended as the locally preferred plan only if they are compatible

with the ecosystem restoration purpose. Cost of planning and

implementation of facilities provided as the locally preferred plan

must be financed by the non-Federal sponsor, cannot be included in the

benefit/cost ratio, and will not be credited against the sponsors

share of cost shared facilities. Another application of this

principle concerns the case where there is a locally preferred

ecosystem restoration plan that includes a greater land base than

required by the recommended ecosystem restoration plan, extending the

project beyond the real limits of the ecosystem restoration plan. In

this case, the Federal Government can participate in recreation

development of the locally preferred ecosystem restoration plan. 

However, Federal participation in recreation development will be

limited to those facilities shown on the checklist and cannot exceed

ten percent of the Federal share of the cost of the recommended

ecosystem restoration plan, and all lands must be provided by the nonFederal sponsor.

17-4. Recreation Use Projection and Benefit Evaluation.

 a. Projections. Projected recreation attendance is based upon

regional use models, specific site use models, attendance at similar 

projects and/or the capacity of the project where excess demand can be

demonstrated. The same methods are used to estimate recreation use

displaced by the project. (See P&G paragraph 2.8.9)

 b. Benefit Evaluation. Benefits arising from recreation

opportunities created are measured in terms of willingness to pay for

each increment of supply provided and considers both recreation gains

and losses. There are three generally acceptable procedures to

evaluate proposed projects: travel cost; contingent valuation; and 

unit day values. The procedure used depends upon the size of the

recreation benefit created, displaced, or transferred by the project

and the nature of the recreation activities affected. (See P&G

paragraphs 2.8.2 and 2.8.10). When the unit day value method is

applied, for activities such as swimming, picnicking, hiking,

bicycling, skiing, boating, and most warm water fishing, the range of

values for "general recreation activities" should be used. Certain

specialized activities may be assigned higher values. Examples of

such "specialized activities" include big game hunting, white water

canoeing, specialized nature photography, wilderness pack trips and

similar activities for which opportunities are limited and intensity

of use is low. Values for both the "general recreation activities"

and the "specialized activities" are updated annually (and made

available in Economic Guidance Memorandums issued by HQUSACE). 

17-5. Cost Participation. Non-Federal participation is required in

the development and administration of recreation opportunities

provided at Corps projects. Public Law 89-72, as amended, and as

supplemented by WRDA 1986 defines the basis for sharing of financial

responsibilities in joint Federal/non-Federal development,

enhancement, and management of recreation and fish and wildlife

resources of Federal multipurpose water projects. Long established

policy precludes cost sharing development of new recreation facilities

at completed water resources projects. (ER 1165-2-400, ER 1105-2-100) 

However, new recreation facilities or improvements to existing
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facilities to increase visitation may be added at existing Corps owned

and operated reservoir and lock and dam projects where such recreation

work is on Corps-owned project lands (or on project lands dedicated to

this purpose) and is an authorized purpose of, but not a separable

element of, a project for which construction was initiated between

June 9, 1965 and April 30, 1986. In implementing the aforementioned

recreation facilities under the Construction General (CG) Program, the

model Project Cooperation Agreement (PCA) for Recreation Cost-Shared

in Accordance with Public Law 89-72 must be used, but only after

construction funds have been appropriated and allocated for the

planned recreation features. 

 a. Cost Allocation. Recreation costs for multiple-purpose

reservoirs, including reservoirs created by navigation improvements,

are allocated by using the Separable Costs-Remaining Benefits (SCRB)

method. Costs allocated to recreation at non-reservoir projects are

confined to the specific incremental costs of the added lands and

facilities. The added cost of modifying the design for maintenance,

repair, rehabilitation, or reconstruction to protect recreational uses

at Civil Works projects, or for alternative provision of recreation

facilities, will be allocated to recreation and will be cost shared in

accordance with Section 103 of WRDA 1986.

 b. Cost Apportionment.

 (1) Reservoirs. The Federal Government assumes joint costs

allocated to recreation and not more than one-half of the separable

first costs of construction of recreation facilities, including

one-half of the cost of any project lands acquired specifically for

recreation. The non-Federal entity must assume: a) at least one-half

of the separable first cost of post-authorization planning and

construction of recreation facilities, including project land acquired

specifically for recreation and b) all costs and full responsibility

for the operation maintenance, replacement, and management of

recreation lands and facilities. 

 (2) Non-Reservoir Projects. Reports proposing recreation

facilities in accordance with paragraph 17-3.a will recommend that the

non-Federal entity provide fee title (other than for access roads, for

which easements may suffice) to project lands required for development

and control of the recreation areas. If these are lands needed to

support the basic project functions, they are not allocated to

recreation. However, any separable lands (that is, additional lands

needed for public access, health and safety), or increase in real

estate interest in land within the boundary acquired for the basic

non-reservoir project (e.g., from permanent easement to fee), are

credited towards the non-Federal sponsor's 50 percent share of the

recreation development costs. Where the appraised value of separable

lands or increase in real estate interest so provided amounts to less

than 50 percent of the total first cost of the recreation development,

the non-Federal sponsor must make additional contributions sufficient

to bring the non-Federal share to at least that level. This

additional contribution may consist of the actual cost of carrying out

an agreed-upon portion of the development, a cash contribution at the

time of construction or a combination of both. The non-Federal entity

must OMRR&R without expense to the Federal Government the

recreational areas and all installed facilities.
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 (3) Revenue Producing Facilities. There is no apportionment

to the Federal Government for revenue producing facilities such as

golf courses, swimming pools, riding stables, and marinas.

 c. Payment. Traditionally, non-Federal interests have been

afforded the option of furnishing their share of separable recreation

costs by cash payment during construction, provision of lands or

facilities, by long-term payment with interest (at reservoirs), or a

combination of these. Currently, up front financing (payment during

the course of development) is required for any part of the local share

of responsibility that is to be contributed in cash.

 d. Use Fees and Day Use Fees. 16 USC 4601, as amended,

provides that fair and equitable fees will be assessed the users of

specialized sites, facilities, equipment or services provided at

substantial Federal expense. Entrance or admission fees are not

charged at Corps projects. Use fees are charged for the use of single

user unit campsites, group use campsites, developed day use

facilities, special facilities (e.g., group picnic shelters,

amphitheaters, multipurpose courts, etc.), special event permits, and

reservation services. Fees will be charged for the use of certain

boat launching ramps and designated, developed swimming beaches in

Corps operated day use recreation areas. Fees will not be charged for

drinking water, wayside exhibits, roads, scenic drives, overlook

sites, picnic tables, toilet facilities, surface water areas,

undeveloped or lightly developed shore land, or general visitor

information. Day user fees will not be charged for the use of visitor

centers. Use fees are comparable with fees charged by other Federal

and non-Federal agencies for similar facilities or services. Fee

revenues collected at Corps projects are deposited into the Corps

special account in the U.S. Treasury for use in authorized recreation

activities. All persons 62 years of age or older, bearing a Golden

Age Passport, receive a 50 percent reduction in the normal use fee at

Corps projects. Golden Age Passports are issued for a one time $10

fee and are valid during the lifetime of the bearer. Facilities

provided at Corps projects are to be open to all on equal terms and

require a uniform fee schedule to all users. Persons eligible to

receive Federal disability benefits may be issued a Golden Access

Passport, which also provides a 50-percent reduction in use fees. (ER

1130-2-550)

17-6. Special Recreation Facility Considerations.

 a. Commercial Concessions. Concessions are planned where

warranted. Development is accomplished through lease arrangement with

non-Federal interests.

 b. Trails.

 (1) Project planning shall consider the incorporation of

trails for nature study, hiking, self-propelled bicycle, horseback

riding, snowshoe, cross-country ski, and access by fisherman and

hunters. When practicable, such trails are located to tie into

existing hiking trails and metropolitan bicycle trails. (EM

1110-2-410) Also see "National Trails System" in Chapter 24.

 (2) Trails For Use by Off-Road Vehicles. Executive Order (EO)

11644, "Use of Off-Road Vehicles on the Public Lands", dated 8

February 1972 as amended by EO 11989, dated 24 May 1977 established

policies and provides for procedures to ensure that the use of

off-road vehicles on public land is controlled to protect the

resources, promote safety of all users, and minimize conflicts among
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the various uses. Where a demand exists, consideration is given to

providing separate specific trails for snowmobiles, trail bikes, and

similar motorized vehicles. Such trails are located to minimize

damage to soil, vegetation, or other resources of the public lands, to

minimize harassment of wildlife or disruption of wildlife habitats,

and to minimize conflicts with other existing or proposed recreation

uses. Full public participation is sought through public meetings in

the process of designation of areas or trails for off-road vehicles. 

(ER 1130-2-550, EP 1130-2-550)

 c. Private Exclusive Use. Water and land areas at Corps

projects are maintained for the benefit of the general public. Since

the early l960's, the permanent siting of floating cabins, cottages

and non-transient mobile homes and trailers for private exclusive use

at project areas has been discouraged. However, Section 6 of Public

Law 97-140 established a moratorium until 31 December 1989 on enforced

removal of certain existing private exclusive use type structures and

Section 1134 of the WRDA of 1986 (Public Law 99-662) extended the

moratorium, indefinitely, for all such leased or permitted structures

that existed on 17 November 1986 (date of the Act) if certain

conditions (detailed in the Act) are met. Present policy stresses

procedures for management based on regional, project or site specific

considerations. These established procedures are applicable to all

new, expanded or existing developments. Division commanders’ regional

plans pertaining to private exclusive use are in effect for each

respective division. (ER 1130-2-540)

 d. Alchoholic Beverages. The sale of alcholic beverages on

Corps projects by lessees is permitted only in accordance with state

and local laws and regulations in those facilities where such service

is traditionally found. Bar facilities are permitted only if offered

in connection with other approved activities. Advertising of such

beverages outside of buildings is not permitted. Carry-out package

sales of hard liquor is prohibited. (ER 1130-2-550)

 e. Gambling. It is the policy of the Corps to prohibit

gambling on all leased premises, such as slot machines, video gambling

machines, or other casino-type devices that would detract from a

family atmosphere. However, District Commanders may allow the sale of

state lottery tickets, in accordance with state and local laws and

regulations, as long as the sale of tickets constitutes a collateral

activity, rather than primary activity of the lessee. In addition,

nonprofit organizations may be allowed to conduct some games of

chance, such as raffles, games or sporting events, under special use

permits in conjunction with special events on Corps lands, if

permissible under state laws and regulations. (ER 1130-2-550)

17-7. Protection of Recreational Uses at Civil Works Projects. A

project may have been constructed to serve only one purpose, but over

the years, recreational use of the structures may have evolved. As

the project ages, maintenance, repair, rehabilitation or

reconstruction may become necessary. The cost effective method of

rehabilitation may result in a structure unsuited to the recreation

which has evolved. Section 313 of WRDA 1990 provides that any

maintenance, repair, rehabilitation, or reconstruction which results

in a change in configuration of a structure should be carried out in a

manner which, to the maximum extent practicable, will not adversely

affect any existing recreational use even if the recreational use was

not an authorized purpose. If recreational uses are adversely

impacted they may be restored or alternatives provided for comparable

recreational use. Costs incurred shall be allocated to recreation and

shall be payable by the beneficiaries of the recreation. 
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 a. Work Under Major Rehabilitation Program. For work proposed

under the Major Rehabilitation Program, the rehabilitation report

required by ER 1130-2-500 should contain a discussion of any

recreation use associated with the project structures and impact of

the proposed work. If recreation use would be lost, alternative plans

to accommodate the recreation may be considered. If recreation

benefits are greater than the added costs, and there is a non-Federal

sponsor willing to provide the required cost sharing, provision for

the recreation use may be recommended as part of the rehabilitation to

be undertaken. The report will be forwarded to HQUSACE for review and

approval, and will include a letter of intent from a non-Federal

sponsor, a financing plan, and a draft PCA. The PCA will be prepared

for signature of the ASA(CW). If a sponsor is unwilling to provide

the required project cooperation, the rehabilitation report should be

submitted recommending the most economical rehabilitation without the

provision for recreation. the required analysis will be funded as a

part of the Major Rehabilitation Program.

 b. Recurring Maintenance Work. For recurring maintenance

work, submission of the report required by ER 1130-2-500 is not

normally required. If recreation use associated with the project

structures would be impacted by the proposed work, submit a letter

report which provides the required information concerning the

recreation use. The report should be accompanied by a letter of

intent from a non-Federal sponsor, a financing plan, and a draft PCA. 

The letter report should be prepared with O&M General funds and

submitted for review and approval to CECW-O.

 c. Cost Sharing. The added cost of modifying the design for

maintenance, repair, rehabilitation or reconstruction, or for

alternative provision of recreation facilities, will be allocated to

recreation and will be cost shared in accordance with Section 103 of 

WRDA 1986, which requires the non-Federal sponsor to pay 50 percent of

the separable cost allocated to recreation, and to pay the cost of 

OMRR&R of the recreation facilities. A PCA will be required

containing the standard requirements for recreation cost sharing and

responsibilities. The PCA and financing plan will be reviewed by

CECW-A and submitted to the ASA(CW) for approval.

 d. Mitigation. If a potential non-Federal sponsor at a

project for which maintenance, repair, rehabilitation or

reconstruction was initiated since 1 May 1988, requests mitigation for

recreation use lost, the district will submit a written request to

undertake a study to CECW-O. The request will describe briefly the

extent of the proposed analysis and, if known, the extent of effort

which may be required, as well as the cost of the analysis. The

analysis should not exceed a cost of $10,000. If approved by HQUSACE,

an analysis will be undertaken to determine whether the maintenance,

repair, rehabilitatiion, or reconstruction caused a loss of recreation

use. If a plan to mitigate the loss of recreation use is economically

justified and supported by a non-Federal sponsor who is willing to

provide the required cost sharing, it may be recommended for

undertaking as a new start under this authority. A report, including

a financing plan and PCA, will be submitted to CECW-O for review and

approval by the ASA(CW). Costs for work undertaken for such

mitigation will be funded from O&M General, and will be monitored at

HQUSACE to ensure that expenditures are within the limit of $2,000,000

per year.
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CHAPTER 18

WATER SUPPLY AND QUALITY MANAGEMENT

18-1. The Federal Interest. National policy, defined by Congress,

has been developed over a number of years and is still being clarified

and extended by legislation. This policy recognizes a significant but

declining Federal interest in the long range management of water

supplies and assigns the financial burden of supply to users.

18-2. Water Supply.

 a. Water Supply Storage. Municipal and industrial (M&I) water

supply is considered the primary responsibility of the municipalities

or other non-Federal entities. However, M&I storage space may be

recommended for inclusion in any Corps reservoir pursuant to the Water

Supply Act of 1958 (Title III, Public Law 85-500), as amended. If

such storage space is economically justified and represents the least

cost alternative, it may be added to any project at any time. 

However, modification of existing projects for this purpose which

would severely affect the project, its other purposes, or its

operation, requires Congressional authorization. An agreement

covering all costs allocated to present use and future water supply

must be negotiated, and submitted to HQUSACE for approval and

execution by the Assistant Secretary of the Army for Civil Works

(ASA(CW)), prior to initiation of project construction. The

legislation provides that allocated costs must be reimbursed by the

water users within the life of the project but not to exceed 30 years

after project completion; current administative policy for new

constuction starts, however, requires that all construction costs

allocated to water supply be repaid during the period of construction. 

Federal interest rates are as defined in Section 932 of WRDA 1986

(Public Law 99-662). Storage in existing projects assigned to M&I

prior to enactment of WRDA 1986 (17 November 1986) and not yet covered

under an agreement as of that date shall be repaid within 30 years of

the plant-in-service date (which includes a 10-year interest free

period for water supply) at the interest rate defined in the Water

Supply Act. Water supply agreements are for water supply storage

space only. The Federal Government makes no representation with

respect to the quantity or quality of water and assumes no

responsibility for the treatment or availablity of the water. 

 b. Permanent Rights to Storage. Public Law 88-140 grants

permanent rights to use storage to local interests when they have paid

the costs of including the storage in the project under an agreement

with the Government. Their rights to use the storage continue as long

as the storage is physically available, taking into account equitable

reallocations as necessitated by sedimentation. They must also agree

to continue to pay their share of annual operation and maintenance

(O&M) costs allocated to the water supply storage, together with their

share of the costs allocated to any necessary repair, reconstruction,

rehabilitation, or replacement of any features which may be required

to operate the project. Storage space for raw water is provided. 

Surplus water agreements executed under the authority of Section 6 of

the 1944 Flood Control Act do not provide permanent right to the

storage.

 c. Modification of Completed Projects. Reallocation of

reservoir storage that would have a significant effect on other

authorized purposes or that would involve major structural or

operational changes requires Congressional approval. Procedures for
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this type of agreement are the same as for provision of water supply

storage as part of original project construction. The cost for such

storage will normally be established as the higher of either benefits

or revenues foregone, replacement cost, or the cost of storage in the

Federal project. The interest rate used for discounting future

benefits, revenues or costs is the current rate used for project

evaluations--see paragraph 5-7.f(3). The cost of storage is

determined by computing costs, at the time of construction, by the use

of facilities cost allocation method, and then updating such costs to

present day price levels by use of a combination of the Engineering

News Record Construction Index and the Corps of Engineers Construction

Cost Index. Any specific costs of construction allocated to the new

water supply storage must be repaid during the period of construction. 

The cost associated with the storage space may be repaid over a 30-

year period from the date the storage is available--which generally

will be the date the agreement is signed by ASA(CW). Interest on

unpaid balances shall be at the rate specified in Section 932 of WRDA

1986. Prior to recommending a reallocation of storage in a project,

the district commander shall provide an opportunity for public review

and comment. This shall be documented and included as part of any

request for reallocation approval. 

 d. Surplus Water. 

 (1) Authority. Under Section 6 of the 1944 Flood Control Act

(Public Law 78-534), the Secretary of the Army is authorized to make

agreements for surplus water with states, municipalities, private

concerns, or individuals at such prices and on such terms as he or she

may deem reasonable. These agreements may be for domestic, municipal,

and industrial uses, but not for crop irrigation, from surplus water

that may be available at any reservoir under the control of the

Department of the Army. 

 (2) Surplus water is defined as either:

 (a) Water stored in a Department of the Army reservoir that is

not required because the authorized use for the water never developed

or the need was reduced by changes that occurred since authorization

or construction; or

 (b) Water that would be more beneficially used as municipal

and industrial water than for the authorized purpose and which, when

withdrawn, would not significantly affect authorized purposes over

some specified time period.

 (3) Requirements and Restrictions.

 (a) Surplus water declarations will only be made when related

withdrawals will not significantly affect authorized purposes.

 (b) Surplus water agreements shall be accompanied by a brief

letter report similar to reallocation reports (reference paragraph

4-32 d.(1)) and shall include how and why the storage is determined to

be surplus.

 (c) Surplus water agreements will normally be for small

amounts of water and/or for temorary use as opposed to storage

reallocations and permanent right to that storage. Normally, surplus

water agreements will be limited to 5 year periods.
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 (d) Use of the Section 6 authority should be encouraged only

where non-Federal interests do not want to buy storage because the

need of the water is short term or the use is temporary pending the

development of the authorized use.

 (e) The views of the affected state(s) will be obtained, as

appropriate, prior to entering into any agreement under Section 6.

 (f) The annual price deemed reasonable for this use of surplus

water is to be determined by the same procedure used to determine the

annual payment for an equivalent amount of reallocated storage plus an

estimated annual cost for operation and maintenance, repair,

replacement, and rehabilitation. The total annual price is to be

limited to the annual costs of the least cost alternative, but never

less than the benefits foregone (in the case of hydropower, revenues

forgone).

 (g) Declaration of surplus irrigation water in the 17 western

states will require appropriate coordination/consultation with the

Department of the Interior (Bureau of Reclamation).

 (h) For certain small withdrawals (including a group of

separate users at a specific project), under Section 6 authority, a

standard minimum charge or standard unit charge should be established

and applied for all of the numerous withdrawals. All proposals for

establishment of such standard charges must be submitted to HQUSACE

(CECW-A) for approval. 

 e. Interim Use Of Water Supply for Irrigation. Section 931 of

WRDA 1986 provides that, for any reservoir project constructed and

operated by the Corps, the Secretary of the Army is authorized to

allocate storage which was allocated in the project for M&I water

supply, and which is not under agreement, for interim use for

irrigation purposes. In accordance with Subsection 103(c)(3) of WRDA

of 1986, the cost to the local sponsor shall be 35 percent of the

original project investment allocated to M&I water supply (for the

block of storage to be used for irrigation). The period of analysis

for computing the annualized payments shall be 30 years, with the

payment based on the original project interest rate as established by

the Water Supply Act of 1958. The non-Federal sponsor shall also be

responsible for 100 percent of OMRR&R costs allocated to the storage

space being put under agreement. The term of the agreement for this

interim use shall not exceed five years. An option for incremental

five year extensions is allowed in the basic agreement only if it

provides for recalculation of annual OMRR&R costs at the end of each

5-year increment. Agreements for such interim use of water supply

storage for irrigation are subject to the same reporting and

submission requirements as those for water supply agreements. Future

sponsors for M&I use of the storage space shall not receive any

credit, in consequence of the interim use payments, toward repayment

of project water supply investment costs.

 f. Seasonal Operation for Water Supply. Congress has not

granted general authority for including storage space in Corps

projects for seasonal M&I use, either as withdrawals or to improve

groundwater supplies. Where not specifically authorized, seasonal

operation of a project for water supply may be conducted, consistent

with authorized project purposes and law. Seasonal storage can be

accomplished under the deviation from water control plan authority as

described in ER 1110-2-240. There can not be a continuing or

recurring deviation from approved water control plans. In the case of
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a continuing or recurring change, the water control plan must be

changed and the required approval obtained from HQUSACE. Pricing

policy for changes in project operations requires that non-Federal

interests be responsible for payments/repayments equalling the

following:

 (1) Any new construction costs and new operations costs (100

percent);

 (2) A share of joint-use project operation, maintenance and

replacement cost, based on use-of-facilities storage allocation;

 (3) Benefits foregone;

 (4) Compensation to others for losses in their operations (may

be the same as (3) above); and

 (5) An amount equal to one-half the savings to the benefited

non-Federal interests (least cost alternative minus the specific costs

of the modification listed in (1) through (4) above).

 g. Single Purpose Water Supply. Single-purpose water supply

projects will not be recommended as Federal projects by the Corps. A

proposed project which includes M&I water supply will be defined as a

single-purpose water supply project where less than 20 percent of the

anticipated NED benefits are attributable to flood control,

navigation, environmental restoration, and/or agricultural water

supply. (This definition does not apply to proposed modifications to

existing projects.) An exception is possible if separable,

economically justified storage is required to realize flood control,

navigation, environmental restoration, and/or agricultural water

supply benefits. In this case, at least 10 percent of the total NED

benefits must be attributable to these purposes for the project to be

considered multi-purpose. 

 h. Withdrawal and Conveyance Systems. Releases through a dam,

into the stream, are frequently used to convey water from an

impoundment to downstream users. It is the user's responsibility to

protect the releases made for it from intervening diversion or

consumption. The feasibility report must present the evaluation of

alternative water supply measures, which must consider the costs of

all facilities needed to withdraw and convey water from the various

sources to user's system, the impact on project justification of both

including or not including these facilities, and the ability and

willingness of potential water users to pay for the delivery system. 

Withdrawal and conveyance facilities may be incorporated as components

of Federal projects when they are essential components of plans for

effective development and use of water resources for flood control,

M&I water supply, agricultural water supply (irrigation), navigation,

hydroelectric power production or other purposes in which Federal

interest resides. (This provision does not extend to inclusion of

local water distribution systems.) If, prior to initiation of project

construction, one or more users can be found to enter into an

agreement for repayment of conduit costs, the conduit may be included

as part of the dam structure. These costs will be identified as
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specific water supply costs with 100 percent of the investment and

OMRR&R costs being repaid by the user. 

 i. Agricultural Water Supply (Irrigation). The Corps may

include irrigation storage in reservoirs outside the 17 western states

provided that non-Federal interests bear 35 percent of reservoir costs

allocated to irrigation. Non-Federal interests requesting irrigation

capacity as a project purpose should provide a firm expression of

intent to use and pay for the requisite storage, should obtain, as

necessary, water rights or their equivalent, from the state, and

possess legal power to enter into an agreement with the Federal

Government.

 j. Agreement Approvals. Approval authority for water supply

storage space agreements is laid out in ER 1105-2-100, Table 4-5.

18-3. Water Quality Enhancement and Management.

 a. Water Quality Standards. The Federal Water Pollution

Control Act of 1948 (Public Law 845, 80th Congress), as amended in

1956, 1961, 1965, 1970, 1972, 1977 and 1987, established the basic

tenet of uniform state standards for water quality. The Federal Water

Pollution Control Act Amendments of 1972 (Public Law 92-500) strongly

affirms the Federal interest in this area. "The objective of this act

is to restore and maintain the chemical, physical, and biological

integrity of the Nation's waters." While the Act is to be

administered by the Environmental Protection Agency (EPA), the primary

responsibility for its implementation, including the provision of

adequate water quality standards, is to remain with individual states. 

However, state standards must meet EPA established guidelines, and are

subject to EPA approval or revision. Prior to 1986 (see paragraph

18-3(c)), pursuant to Subsection 102(b)(3) of Public Law 92-500, the

need for, the value of, and impact of storage for water quality was to

be determined by the Administrator of EPA and set forth in Corps

reports to Congress proposing authorization or construction of any

reservoir including such storage.

 b. Completed Reservoir Projects. Although water quality

legislation does not require permits for discharges from reservoirs,

downstream water quality standards should be met whenever possible. 

When releases are found to be incompatible with state standards they

should be studied to establish an appropriate course of action for

upgrading release quality, for the opportunity to improve water

quality in support of ecosystem restoration, or for otherwise meeting

their potential to best serve downstream water quality needs. Any

physical or operational modification to a project (for purposes other

than water quality) shall not degrade water quality in the reservoir

or project discharges. (EM 1110-2-1201, ER 1110-2-8154)

 (1) Changes in Water Control Plans for Water Quality

Management. Authorities for allocation and regulation of reservoir

storage in projects operated by the Corps are in the acts authorizing

the projects. Proposed changes in water control plans must be

carefully reviewed to determine the extent of change which may be

undertaken consistent with the authorizing legislation. (With some
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specific exceptions, revised plans for purposes not encompassed by the

existing project authority require new Congressional authorization.) 

Further Congressional authorization is not required to add water

quality functions if the related revisions in regulation would not

significantly affect operation of the project for the originally

authorized purposes. (EM 1110-2-3600, ER 1110-2-240, ER 1165-2-119)

 (2) Modification of Completed Projects to Meet Water Quality

Needs. Recommendations for modification of a project for water

quality reasons (involving alteration of original project purposes or

addition of environmental restoration as a project purpose), if they

are to be adopted, must be presented in a feasibility report and

submitted to Congress for specific authorization of such modification. 

Evaluation of benefits from such modifications and allocation of costs

to the basic purposes served (and, hence, cost sharing as appropriate

to those purposes) will be in accordance with policy for new projects

as discussed in paragraph 18-3c.

 c. New Projects. Pursuant to Subsection 103(d) and Section

1135 of WRDA 1986, as amended, water quality enhancement provisions

may be included in new Corps reservoir developments to the extent that

the related benefits can be identified with basic project purposes as

listed in Subsections 103(a),(b),(c)and Section 1135: flood control,

hydroelectric power, municipal and industrial water supply, agricultural water supply, recreation, hurricane and storm damage

reduction, aquatic plant control, and fish and wildlife. The need for

and the value of storage for regulation of streamflow for these

purposes, as well as for navigation and fish and wildlife, is

determined by the Corps. The value of storage for water quality and

streamflow regulation for such purposes shall be included with the

other monetary and non-monetary benefits of project development for

these purposes in the determination of project justification. Costs

associated with water quality enhancement and streamflow regulation

shall be allocated to the purposes that are served by these provisions

(listed in Subsections 103(a)(b)(c), navigation, and fish and

wildlife). If conjunctive use of the same storage serves more than

one of these basic purposes, allocation to streamflow regulation with

a suballocation to the basic purposes may be appropriate. As a

condition of authorization for projects which incorporate provisions

for streamflow regulation, states or other qualified sponsors shall

normally be required to furnish assurances that they will protect

regulated low flow releases against withdrawals or diversions to other

uses when Federal cost sharing is provided for the purpose served.

18-4. Water Rights Involved in Project Development.

 a. Definitions. Water rights in some states are a form of

real property, protected by state and Federal laws. In other states,

water may be considered part of the public trust and subject to use

under state regulatory laws. Depending on the State law in the

locale, water rights may originate in ownership of riparian lands or

be acquired by statutorily-recognized methods of appropriation. 

Riparian lands are those which immediately adjoin a river. Riparian

water rights are the right to use, on that land, an amount of water

considered "reasonable:" that amount which allows maximum use by a
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riparian landowner without unreasonably impairing other riparian

owners. Appropriation systems, predominant in the western states,

permit use of a carefully designated amount of water, regardless of

land ownership or place of use. Allocations among users are made by

temporal priority. Differences between the two basic systems,

however, are being overshadowed by state permit systems which require

all water users to obtain finite determinations of their water rights. 

 b. Effects on Projects. States have wide powers to legislate

the use of property within their borders, except these powers are

restricted by several paramount Federal powers granted under the

Constitution. Civil Works water resource projects are built under

Congressional authorization and usually are not subject to concurrent

authorization by state agencies. In particular cases, such as those

involving inter-basin transfers, interstate compacts, or Supreme Court

allocations, projects must be designed to recognize water rights

claimed by the residents of an affected state. Congress has also

established policies which protect and recognize certain state-created

rights, such as Section 1 of the Flood Control Act of 1944, which

subordinates use of water for navigation purposes to beneficial

consumptive uses of the streams in the western states. Water rights

may also be affected by authorized projects in which Congress has made

a quantified allocation of waters between the involved states.

 c. Effects of Regulated Flows. Water resource projects, by

their very nature, often have significant effect on the quantity and

timing of flows in a river system. Whether such actions constitute an

injury to private water or other property rights for which the Federal

Government or a non-Federal project sponsor must pay compensation

depends on whether its actions come within the Government’s rights

under the navigation servitude. This will depend on the degree of

interference, the navigability of the stream, and other related

factors. Careful consideration is given to the existence of lawful

water uses in the downstream areas. Encroachment on those uses is

avoided as much as possible.

 d. Acquisition of Water Rights. Downstream waters made

available by a project are subject to allocation under state laws. 

The parties desiring to use the waters impounded by a reservoir must

acquire the necessary water rights under the provisions of state laws,

and regulations, and resolve conflicts among users at the local or

state level. The Corps provides flow regulation service or storage

space within the reservoir to water users as authorized and is not

involved in adequacy or timing of the acquisition of water rights.

 e. Legal Sources. United States v. Cress, 243 U.S. 316(1917);

United States v. Kansas City Life Ins. Co. 339 U.S.799 (1950); Wyoming

v. Colorado, 353 U.S. 953(1957); Arizona v. California, 373 U.S.

546(1963); Turner v. Kings River Conser. Dist. 360 F. 2d184 (9th Cir.

1966).

18-5. Emergencies.

 a. Water Supply. Section 5 of Public Law 77-228, as amended

by Section 82 of Public Law 93-251 provides the Chief of Engineers

with discretionary authority to provide emergency supplies of clean

water, on such terms as he determines to be advisable, to any locality

which he finds is confronted with a source of contaminated water

causing or likely to cause a substantial threat to the public health

and welfare of the inhabitants of the locality. Work under this
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authority requires a request from the governor of the state where the

source of water has become contaminated and is normally limited to 30

days. Loss of water source or supply is not correctable under this

authority. Public Law 95-51 further amended Section 5 to provide the

Secretary of the Army authority under certain statutory conditions to

construct wells and to transport water to farmers, ranchers, and

political subdivisions within areas the ASA(CW) determines to be

drought distressed. A written request for assistance may be made by

any farmer, rancher or political subdivision within a distressed area. 

Corps assistance will only be considered when non-Federal interests

have exhausted reasonable means for securing necessary water supplies

(within the limits of their financial resources) including assistance

from other Federal agencies. Evaluations of requests for assistance

are to be tempered by the fact that Corps assistance is supplemental

to state and local efforts. Long term solutions to water supply

problems are the responsibility of state and local interests. This

authority is not to be used to provide drought emergency water

assistance in cases where a livestock owner has other options. Those

options include raising funds from private sources through a loan, and

by selling all or part of the herd, even though the sale may be at

deflated prices, to purchase water or facilitate relocation of the

animals to an area where water is available. Federally-owned

equipment must be used to the maximum extent possible. Assistance can

be provided to transport water for consumption. The cost of

transporting water is provided by the Corps; however, cost of

purchasing and storing water is the non-Federal interest's

responsibility. In addition, assistance can be provided to construct

wells. Federal costs for well construction must, however, be repaid. 

(ER 500-1-1 and ER 11-1-320)

 b. Water Supply Planning. The Department of the Army has

absorbed emergency water supply functions which formerly were a

responsibility of the Department of the Interior. The transfer will

enable the Corps to develop, nationwide, emergency plans and

preparedness programs for water. The transferred responsibilities

will complement previously held authorities and will permit more

comprehensive and efficient management of water as a scarce resource

during an emergency. (Paragraph 28-2.a)

 c. Water Quality. Emergency or unusual conditions have

developed in past years on rivers and waterways as a result of

accidental spills of pollutants and extreme, short-term low flows. 

The Corps has adequate authority under existing laws to regulate

projects in the public interest under emergency conditions, with one

possible exception. In very rare instances, water supply under

agreement might be the only water in storage available for immediate

release. In those instances it is necessary to obtain the cooperation

of the water supply owner to make releases. Approval of HQUSACE is

required to deviate from the approved water control plans.

 d. Drought Contingency Plans. Water control managers will

continually review and adjust water control in response to changing

public needs. Many areas of the country face chronic or serious

drought conditions. Preparation of drought contingency plans is, for 
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Corps projects with controlled reservoir storage, a part of the Corps

overall water control management activities. Existing authority

(Section 6 of the Flood Control Act of 1944) is adequate to permit

temporary withdrawal of water from Corps projects to supplement normal

supplies in time of drought. Under Section 6 of the Flood Control Act

of 1944, the Secretary of the Army is authorized to make agreements

with states, municipalties, private concerns or individuals at such

prices and on such terms as he may deem reasonable for domestic and

industrial uses for surplus water (see paragraph 18-2.d) that may be

available in any reservoir under the control of the Department of the

Army. In providing such surplus water, the preferred approach is for

a state or subdivision of a state to enter into an agreement with the

Secretary of the Army and agree to act as wholesaler for all of the

water requirements of individual users. This places the local

government in a position to help their citizens during difficult times

and minimizes the potential for problems that could arise if the

Secretary had to determine who was entitled to shares of surplus water

based on assessment of local needs. Such withdrawals require a fee

for the service provided, even in the case of a declared national

disaster area. (ER 1110-2-1941)
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CHAPTER 19

ENVIRONMENTAL RESTORATION AND PROTECTION

19-1. Introduction. This chapter has been significantly revised to

reflect the increased emphasis being placed upon ecosystem restoration

and protection within the Corps of Engineers (Corps) Civil Works

Program. In particular, this chapter attempts to clarify the linkages

among the various environmental statutes and the programs and policies

established by recent Water Resources Development Acts (WRDAs), such

that the Corps role in ecosystem restoration and protection is more

clearly defined. Ecosystem restoration and protection is the concept

or “umbrella” under which the Corps’ more traditional environmental

responsibilities involving, e.g., wetlands, fish and wildlife

resources, and endangered species, are to be implemented. Each of

these traditional environmental topics are discussed and their

relationship to ecosystem restoration and protection established. In

addition to examining these more traditional environmental policies

and their relationship to ecosystem restoration and protection we also

discuss the application of ecosystem principles in our more

traditional mission areas of flood control and navigation, i.e., the

beneficial use of dredged material and the modification of project

features and/or their operations to benefit the environment.

19-2. Ecosystem Restoration and Protection in the Civil Works

Program. The Corps began seriously considering environmental issues

following the passage of the National Environmental Policy Act (NEPA)

of 1969 (Public Law 91-190), as amended, which required that all

Federal agencies prepare a statement describing the environmental

impacts of any proposed activity on the natural and social resources

within a project area. (see also paragraphs 3-2 and 25-2; ER 200-2-2;

ER 1105-2-100, Chapter 2; and, 40 CFR 1500-1508) since the initial

response to NEPA’s requirements, the Corps Civil Works Program has

matured to now include projects whose purpose is to restore and/or

protect significant environmental resources. Within the Civil Works

Program, one of the project purposes considered for inclusion in the

budget are projects whose purpose is the restoration of degraded

ecosystem functions and values, including the ecosystem’s hydrology,

plant and animal communities, and/or portions thereof, to a less

degraded ecological condition (see current Corps annual budget

guidance; ER 1105-2-100, Chapter 4, Section VIII). Budgetary priority

is to be given to cases where Corps projects have contributed to the

degradation of the ecosystem or where the modification of existing

Corps projects is the most cost-effective means of restoring the

resources of the degraded ecosystem.

19-3. Corps Focus in Ecosystem Restoration and Protection. Corps

activities in ecosystem restoration and protection will concentrate on

engineering solutions to water and related land resource problems. 

The Corps principal focus in ecosystem restoration will be on those

ecological resources and processes that are directly associated with, 

or are directly dependent upon, the hydrologic regime of the

ecosystem(s) and/or watershed(s) in which they are found. There will

be instances where components of an ecosystem restoration plan are

better addressed by other agencies through their missions and

programs; however, given the dependent nature of ecosystem components

it would be prudent to collaborate, to the extent permitted by our

authorities, with other agencies in the implementation of ecosystem

restoration activities. Those ecosystem restoration activities that

involve modification of hydrology or aquatic substrates are most

likely to be appropriate for Corps initiatives and include ecosystems

classified as wetlands, riparian and other aquatic systems. Budget
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limitations require the Corps to focus its restoration efforts on

those initiatives most closely tied to the Corps traditional mission

areas of flood control and navigation and its areas of expertise;

however, it is emphasized that collaborative efforts with other

agencies will allow limited appropriations to be focused in areas of

identified ecosystem restoration need. Generally, it will not be

appropriate for the Corps to conduct ecosystem restoration activities

on upland, terrestrial sites unless they are closely linked to water

and related land resources projects in the Corps Civil Works Program. 

Ecosystem-based restoration will be authorized in the same manner that

flood damage reduction and navigation projects are authorized, i.e.,

by individual study authorities, by Congressional resolutions, or by

favorable studies initiated under Section 216 of the River and Harbor

and Flood Control Act of 1970 (Public Law 91-611). Ecosystem-based

restoration can also be pursued under Section 1135 of WRDA 1986,

and/or the authority of Section 204 of WRDA 1992 for the beneficial

use of dredged material, and/or Section 206 (Aquatic Ecosystem

Restoration) and Section 210 (Environmental Protection and

Restoration) of WRDA 1996 (See also paragraphs 19-22 through 19-35

below, ER 1105-2-100, and the current guidance on Section 1135,

Section 204, Section 206 and Section 210, respectively).

19-4. Restoration and the Ecosystem Approach. Corps activities to

meet natural resource restoration and stewardship objectives will be

conducted using an ecosystem approach while maintaining the

traditional Corps watershed focus on water and related land resources. 

An ecosystem is a dynamic and interrelated complex of plant and animal

communities, including humans, and their associated non-living

environment. Ecosystems occur at spatial scales that range from local

through regional to global. Restoration is the process of

implementing measures to return a degraded ecosystem's functions and

values, including its hydrology, plant and animal communities, and/or

portions thereof, to a less degraded ecological condition. The goal

of restoration is to return the study area to as near a desired

natural condition as is justified and technically feasible. 

Consideration of ecosystems within (or encompassing) a watershed

provides a useful organizing tool to approach ecosystem-based

restoration planning as watersheds are physically and hydrologically

distinct. The ecosystem approach consists of restoring and/or

protecting the structure and function of an ecosystem, or parts

thereof, recognizing that all its components are interrelated. The

ecosystem approach also recognizes and seeks to address the problems

of habitat fragmentation and the piecemeal restoration and mitigation

efforts that have been previously applied in dealing with the Nation's

natural resources. Further, the ecosystem approach also recognizes

that existing and planned infrastructure is a legitimate feature of

the human environment and should co-exist and benefit (restore and

protect) the natural features of the ecosystems in which they are

placed. Projects should also be conceived and operated in a more

comprehensive, holistic context. This means including the activities

of other Federal, state, tribal and local agencies and considering

aquatic (including marine and estuarine), wetland and closely

associated terrestrial complexes, in order to provide the potential

for long-term survival as productive and sustainable ecosystems. In

recognition of the principles of the ecosystem approach the Corps,

along with 13 other Federal agencies, signed a MOU “To Foster the

Ecosystem Approach” in December of 1995. The MOU states it is the

policy of the Federal Government to “ ... provide leadership in and

cooperate with activities that foster the ecosystem approach to

natural resource management, protection and assistance. Federal

agencies will use their authorities in a manner that facilitates an

ecosystem approach. Consistent with their authorities, Federal
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agencies will administer their programs in a manner that is sensitive

to the needs and rights of landowners, local communities, and the

public and will work with the public to achieve common goals”.

19-5. Federal and Ecosystem Restoration Objectives. The Federal

objective in water resources planning, as defined within the 

Water Resources Council’s Principles and Guidelines (P&G), is to

contribute to National Economic Development (NED) in order to

alleviate problems and/or realize opportunities related to water and

related land resources, consistent with protecting the Nation's

environment. The P&G allow for the formulation of alternative plans

which reduce net NED benefits in order to address other Federal,

state, local and international concerns not fully addressed by the NED

plan. The P&G state that the NED plan is to be selected unless the

Secretary of the Army grants an exception when there are overriding

reasons for selecting another plan, such as Federal, state, tribal,

local and international concerns, or the provision of significant

environmental outputs, such as ecosystem restoration. Consistent with

the analytical framework established in the P&G, alternative plans to

address ecosystem restoration should be formulated, and measures for

restoring ecological resources recommended, based upon their projected

monetary and nonmonetary benefits. These ecosystem restoration

measures do not need to exhibit net NED benefits, but should be judged

on the basis of both nonmonetary and monetary outputs consistent with

the procedures outlined in paragraph 19-21.a and the P&G selection

criteria (P&G, 1.10.2), and be offered for consideration and budget

support. 

19-6. Collaboration with Other Agencies. The collaborative efforts

of multiple Federal agencies as well as nonfederal interests will

often be necessary to achieve ecosystem restoration goals. Successful

restoration at the landscape level will depend on program coordination

and integration among those agencies responsible for management

decisions on separate ecosystem components. Corps ecosystem

restoration efforts should complement and be complemented by the

various authorities and activities of other Federal and state

agencies, Native American tribes and private groups, such that common

management and restoration objectives are identified early in the

study process. The Corps will, in some instances, lead in the

development of alternative restoration plans, and in other instances,

play only a supporting role. Collaborative partnerships provide the

means to more efficiently use limited dollars and resources among

participants. Major Subordinate Commands (MSCs) should encourage and

develop partnerships with Federal and state agencies and tribal and

nongovernmental organizations in the accomplishment of restoration

studies and project implementation and financing. It is particularly

important that potential cost-sharing partners understand the Corps

ecosystem restoration program philosophy. The Corps now focuses more

on ecosystems and the restoration and protection of their associated

plant and animal communities rather than on recreation oriented

(hunting and fishing) outputs. The use of recreation-oriented outputs

are still legitimate in an ecosystem restoration project; however, 

recreation benefits should be considered “add-on” and their generation

should not in any way jeopardize the production of ecological outputs

anticipated from the ecosystem restoration project. (See also

paragraph 5-8.e)
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19-7. Authorities Supporting Ecosystem Restoration. The Federal

involvement in environmental quality, including ecosystem restoration,

is supported in law, Executive Order, and International treaties.

Consequently, the Corps Civil Works Program’s involvement in the

protecting and restoring the quality of environmental resources is

also broadly supported, but not limited to, the following examples:

 a. Fish and Wildlife Coordination Act of 1958, as amended.

 b. Federal Water Project Recreation Act of 1965, as amended.

 c. National Environmental Policy Act of 1969, as amended.

 d. Coastal Zone Management Act of 1972, as amended.

 e. Clean Water Act of 1972, as amended.

 f. Marine Protection, Research and Sanctuaries Act of 1972, as

amended.

 g. Endangered Species Act of 1973, as amended.

 h. Water Resources Development Acts of 1986, 1988, 1990, 1992,

and 1996.

 i. Coastal Wetlands Planning, Protection, and Restoration Act

of 1990 (Title III of Public Law 101-646).

 j. Executive Order 11990, “The Protection of Wetlands”.

 k. Executive Order 11991, “Relating to Protection and

Enhancement of Environmental Quality ”.

 m. Numerous International Conventions on the Conservation of

Habitat and Migratory Birds dating from 1929 through 1989. 

19-8. Environmental Authorities within WRDAs. Environmental

authorities with direct applicability to the Civil Works Program are

found within the various WRDAs and include the following:

 a. Section 906 of WRDA 1986 (Public Law 99-662) establishes a

comprehensive mitigation policy for water resources projects,

including: 

 (1) Subsection 906(a) authorizes mitigation activities to be

done either before the start of construction or concurrently with the

initiation of project construction. Mitigation measures will

generally be scheduled for accomplishment concurrently with the

initiation of construction of other project features. Should there be

circumstances warranting accomplishment of mitigation activities as

the first or the last element of project construction, the prior

approval of HQUSACE will be required before proceeding.

 (2) Subsection 906(b) authorizes the Secretary of the Army to

provide for fish and wildlife mitigation resulting from any water

resources project under his or her jurisdiction, whether completed,

under construction or to be constructed without specific Congressional

authorization. Such mitigation activities may include the acquisition

of lands, or interests therein, except for certain limitations. The

limitations are:
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 (a) Land acquisition will be on a willing seller basis if, on 

17 November 1986, 10 percent or more of the project is physically

completed.

 (b) Acquisition of water or interests therein will be on a

willing seller basis.

 (c) Up to $30,000,000 may be obligated in any fiscal year to

study and implement fish and wildlife mitigation under this authority,

with a single project limit of $7,500,000 or 10 percent of total

project costs (including the mitigation), whichever is greater. The

authority of subsection 906(b), however, does not apply to fish and

wildlife enhancement activities and because of policy and budget

restrictions has been limited to projects under construction or to be

constructed. (See ER 1105-2-100, Chapter 4, Section VIII)

 (3) Subsection 906(c) requires that fish and wildlife

mitigation costs be allocated among the purposes which caused the need

for the mitigation activities and that they be cost shared to the same

extent as other costs for such project purposes are shared, except

where contracts were previously signed with non-Federal interests

prior to enactment of WRDA 1986.

 (4) Subsection 906(d) requires that all subsequent reports to

Congress will contain either a determination by the Secretary of the

Army that such projects will have negligible adverse impacts on fish

and wildlife resources or they will contain specific mitigation

recommendations to address fish and wildlife losses. Such plans will

mitigate impacts to bottomland hardwood forests in-kind to the fullest

extent possible. The requirement to justify mitigation measures was

not rescinded, as the amount of mitigation recommended is still

dependent upon the development of justifiable and cost effective

mitigation measures. (See paragraph 19-21a below)

 (5) Subsection 906(e) provides that when the Secretary of the

Army recommends fish and wildlife enhancement measures in reports to

Congress the first costs shall be Federal when:

 (a) The benefits are determined to be national in character -

including benefits for species identified by the National Marine

Fisheries Service (NMFS) as of national economic importance; species

subject to treaties or international convention to which the United

States is a party, and anadromous fish; or

 (b) The recommended enhancement is designed to benefit species

listed as threatened or endangered by the Secretary of the Interior

(under the terms of the Endangered Species Act, as amended; 16 U.S.C.

1531, et seq.); or

 (c) The recommended enhancement activities are located on

lands managed as a national refuge. If the benefits do not so

qualify, 25 percent of first costs of enhancement shall be provided by

non-Federal interests during implementation. In either event, the

non-Federal share of subsequent operations, maintenance, and

rehabilitation (OMR) costs for fish and wildlife enhancement shall be

25 percent. (See also paragraph 6-14) The authority of subsection

906(e), however, is not being implemented because of policy and budget

restrictions (See ER 1105-2-100, Chapter 4, Section VIII).

 

 b. Section 907 of WRDA 1986 (Public Law 99-662) authorizes the

Secretary of the Army, in the evaluation of the costs and benefits of

a water resources project, to consider the benefits attributable to
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measures included in a project for the purpose of environmental

quality, including environmental improvements and fish and wildlife

enhancement, to be at least equal to the costs of such measures. (See

also paragraph 19-23)

 c. Section 908 of WRDA 1986 (Public Law 99-662) provides that

the Secretary may undertake mitigation prior to project construction

funding using appropriated mitigation funds. Monies so used must be

repaid to the mitigation fund established under Section 906(b) from

the first appropriation for construction. Section 908 has not been

implemented since normal project funding would allow for the

accomplishment of mitigation features as an early project

implementation item, thus there was no need to establish a separate

mitigation fund.

 d. Section 1135 of WRDA 1986 (Public Law 99-662), as amended,

authorizes the Secretary of the Army to modify the structures and

operations of water resources projects constructed by the Corps to

improve the quality of the environment consistent with authorized

purposes; and to undertake measures for restoration of environmental

quality where the construction or operation of a water resources

project built by the Corps has contributed to the degradation of the

quality of the environment and such measures do not conflict with the

authorized project purposes. (See also paragraphs 19-29 through 19-

35).

 e. Section 306 of WRDA 1990 (Public Law 101-640) authorizes

the Secretary of the Army to include environmental protection (i.e.,

measures undertaken to protect and preserve elements of an ecosystem's

structure and functions against degradation) as one of the primary

missions of the Corps. Guidance on this provision of WRDA 1990 has

not been specifically developed, as the guidance on ecosystem

restoration is believed to account for the requirements of this

provision.

 f. Section 307(a) of WRDA 1990 (Public Law 101-640) 

establishes a "no net loss of wetlands" and an "increase in the

quality and quantity of the Nation's wetlands" as goals of the Corps

Civil Works water resources development program. (See also paragraphs

19.10 through 19.13).

 g. Section 203 of WRDA 1992 (Public Law 102-580) authorizes

the Secretary of the Army to accept contributions of cash, funds,

materials and services from persons, including governmental entities,

but excluding the project sponsor, in connection with the

implementation of a water resources project for environmental

protection and restoration purposes or for recreation. (See paragraph

11-13.b and ER 1130-2-500, Chapter 11)

 h. Section 204 of WRDA 1992 (Public Law 102-580),as amended,

by Section 207 of WRDA 1996 authorizes the Secretary to carry out

projects for the protection, restoration, and creation of aquatic and

ecologically related habitats, including wetlands, in connection with

dredging conducted for construction, operation, or maintenance of an

authorized Federal navigation project. (See also paragraphs 19-22

through 19-28 below).

 i. Section 206 of WRDA 96 (Public Law 104-303) authorizes the

Secretary to carry out projects for aquatic ecosystem restoration and 
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protection if the Secretary determines that the project will improve

the quality of the environment, is in the public interest, and is

cost-effective. (See paragraph 19-36 below and the most recent

guidance on the Section 206 program)

19-9. Ecosystem Restoration Relationship to Traditional Environmental

Topics. Thus, as can be seen from the discussion of authorities

above, there is a large body of legislation that supports the Corps

role in ecosystem restoration. Following are discussions that cover a

number of traditional environmental topics and how they relate to

ecosystem restoration and protection.

19-10. Consideration of Wetland Resources Within the Civil Works

Program. Wetlands represent an ecosystem that has generated vast

political, social and scientific interest. Many wetlands are

important natural resources contributing significant benefits to both

the natural and human environments because they are transition areas

between purely terrestrial and aquatic ecosystems. As transitional

areas wetlands possess features of both aquatic and terrestrial

systems. Consequently wetlands are generally areas of great natural

productivity, hydrologic utility, and biodiversity, providing natural

flood control, and contributing to improved water quality, flow

stabilization of streams and rivers and habitat for fish and wildlife

resources. Wetlands can also contribute to the production of

agricultural products and timber and provide numerous recreational,

scientific and aesthetic resources of national interest. Because of

the regulatory program established under Section 404 of the Clean

Water Act, as amended, a legal definition of wetlands has been

developed that defines wetlands as “ ... areas that are inundated or

saturated by surface or groundwater at a frequency and duration

sufficient to support, and that under normal circumstances do support,

a prevalence of vegetation typically adapted for life in saturated

soil conditions. Wetlands generally include swamps, marshes, bogs and

similar areas.” (33 CFR 328.3; see also paragraph 3-5 and Chapter 22)

19-11. Wetland Policy. The Corps recognizes that certain wetlands

constitute a productive and valuable public resource. Their

unnecessary alteration or destruction is discouraged as contrary to

the public interest as these wetlands perform functions important to

the public interest. Wetlands which perform important public interest

functions include:

 a. Wetlands which provide significant natural biological

functions, including food chain production, general habitat, and

nesting, spawning, rearing, and resting sites for aquatic or land

species;

 b. Wetlands set aside for the study of the aquatic

environments or as sanctuaries or refuges;

 c. Wetlands, the destruction or alteration of which, would

detrimentally affect natural drainage characteristics, sedimentation

patterns, salinity distribution, flushing characteristics, current

patterns, or other environmental characteristics;

 d. Wetlands which are significant in shielding landward areas

from wave action, erosion, or storm damage. Such wetlands are often

associated with barrier beaches, islands, reefs and bars;
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 e. Wetlands which serve as valuable storage areas for storm

and flood waters;

 f. Wetlands which are groundwater discharge areas that

maintain minimum base flows important to aquatic resources and those

which are prime natural recharge areas. Prime recharge areas are

locations where surface and groundwater are directly interconnected;

and

 

 g. Wetlands which through natural water filtration processes

serve significant water purification functions.

19-12. Administration’s Wetlands Plan. The Administration announced

its wetlands policy on 24 August 1993. This policy is based upon five

principles including the adoption of the interim goal of no overall

net loss of the Nation’s wetlands and the long term goal to increase

the quality and quantity of the Nation’s wetland base in a manner

similar to that described in Section 307 of WRDA 1990. The five

principles are as follows: 

 a. Support for the interim goal of no net loss of the

Nation's remaining wetlands and the long-term goal of increasing the

quality and quantity of Nation's wetlands base;

 b. Regulatory programs must be efficient, equitable, flexible

and predictable and administered in a manner that avoids unnecessary

impacts upon private property;

 c. Non-regulatory programs, such as advanced planning and

wetlands restoration, are vital elements of meeting the wetlands

goals; 

 d. The Federal Government should expand partnerships with

state, tribal and local governments and the private sector and

approach wetlands protection and restoration in an ecosystem/watershed

context; and 

 e. Federal wetlands policy should be based upon the best

scientific information available. It was further stated that the

restoration of drained or otherwise degraded wetlands would be key to

achieving this goal, thus it can be seen that the Civil Works water

resources program has a unique opportunity to make a significant

contribution to the President’s wetland goals through the development

and implementation of ecosystem restoration and protection projects

and through its regulatory functions.

19-13. Executive Order (EO) 11990, Protection of Wetlands. This EO

directs the Corps, along with other executive branch agencies, to provide

leadership and take action to minimize the destruction, loss or

degradation of wetlands, and to preserve and enhance the natural and

beneficial values of wetlands in carrying out its Civil Works activities.

The EO sets forth several major requirements that Federal agencies are

required to comply with before undertaking any new construction in

wetlands. They are: 

 a. Prior to undertaking an action in wetlands, determine

whether a practicable alternative to the action exists (if a

practicable alternative exists, the action should not be undertaken in

wetlands). 
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 b. If the action must be undertaken in wetlands, include all

practical measures to minimize harm to wetlands which may result from

such use. 

 c. Preserve and enhance the natural and beneficial values of

the wetlands; and 

 d. Involve the public early in the decision-making process

for any action involving new construction in wetlands. 

The key requirement of the EO is determining whether a practicable

alternative to locating an action in wetlands exists. This requires

the identification and evaluation of alternatives that could be

located outside of wetlands, i.e., alternative sites; other means that

would accomplish the same purpose(s) as the proposed action, i.e.,

alternative actions; and, no action. If there is no practicable

alternative to locating an action in wetlands, the EO requires that

the action include all practical measures to minimize harm to the

wetlands and preserve and enhance the natural and beneficial values,

i.e., the provision of appropriate and justified mitigation. 

Provision for Corps compliance with this EO is its incorporation

within Corps planning guidance, as part of the required specific and

general environmental compliance considerations for every planning

investigation undertaken. (See also ER 1105-2-100, Chapter 7)

19-14. Section 150 of the Water Resources Development Act of 1976

(Public Law 94-587). This provision authorizes the Chief of Engineers

to plan and establish wetland areas in connection with the dredging

required for authorized water resources development projects where the

increased cost of such wetland areas will not exceed $400,000. This

provision does not include any requirement for non-Federal costsharing and has been supplanted with the partnership principles

established by WRDA 1986 and Section 204 of WRDA 1992 (See also

paragraphs 19-22 through 19-28 and the most recent guidance on Section

204). Therefore, Section 150 authority will not be pursued. 

19-15. Section 307 of the Water Resources Development Act of 1990

(Public Law 101-640). Section 307(a) of WRDA 1990 establishes,as part

of the Corps of Engineers water resources development program, an

interim goal of no overall net loss of the Nation's remaining wetlands

base and a long-term goal to increase the quality and quantity of the

Nation's wetlands, as defined by acreage and function. The Corps

shall utilize all appropriate authorities, including those to restore

and create wetlands, in meeting the interim and long-term goals, e.g.,

the Section 1135 Program, the Section 204 Program, the Ecosystem

Restoration Program, the Natural Resources Management Program, the

Regulatory Program, etc. in an effort to support this provision of

WRDA 1990 and the President’s wetland goals as discussed above.

19-16. Consideration of Fish and Wildlife Resources in the Civil

Works Program. Fish and wildlife resources were initially of concern

as being representative of those natural resources most conspicuously

utilized by humans, primarily hunting and fishing. Originally defined

to include only those living natural resources such as terrestrial and

aquatic animal populations, the description of fish and wildlife

resources now includes their required habitat, including the

vegetation, necessary to satisfy feeding, nesting and resting

requirements, along with the necessary soil, moisture and temperature

conditions to sustain the required vegetative communities. Clearly,

our growing knowledge of the linkages among animal and vegetative 
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communities along with the relationships to their physical conditions

represents a greater recognition and appreciation of complex natural

ecosystems. Perhaps equally or more important to our growing

knowledge of ecosystems, is how our activities have and will

potentially impact these resources in the future. Today, the

sustainability of many fish and wildlife resources are threatened on

numerous fronts ranging from unwise land use and development to

contamination from pollutants. There are opportunities within the

Corps Works Program that should be recognized and alternative

solutions examined in the development of new and the rehabilitation of

older water resources projects using the principals of ecosystem

restoration and protection described above in paragraphs 19-2 through

19-6 and within the most recent guidance on ecosystem restoration. 

Additionally, efforts undertaken in implementing the Fish and Wildlife

Coordination Act, the Endangered Species Act, the Clean Water Act,

discussed below, and the environmental provisions of several WRDAs,

discussed above in paragraph 19-8, support the Corps ecosystem

restoration and protection goals and ultimately the fish and wildlife

resources of the nation.

19-17. Fish and Wildlife Coordination Act (FWCA) of 1958 (Public Law

85-624; 16 U.S.C. 661-666). The FWCA directs that equal consideration

be given to fish and wildlife resources and that measures to conserve

these resources are incorporated, along with other project features,

into water resources development projects. Further, the Act requires

the Corps to give full consideration to the recommendations, including

those for mitigation, of the USFWS, the NMFS and those of the

appropriate state agencies. Funds are transferred to the USFWS in

accordance with a 1982 Transfer Funding Agreement with the Department

of the Interior, which requires a coordination act report be developed

and included in any feasibility study of a proposed water resources

project with the potential to impact fish and wildlife resources. The

FWCA, in Section 662(h), exempts new impoundments of less than ten

surface acres or land management and use activities carried out by

Federal agencies on Federal lands from its provisions. Each of the

important provisions of the FWCA are summarized below.

 a. Section 661 provides, in part, that fish and wildlife

conservation shall receive equal consideration with other project

purposes and be coordinated with other features of water resources

development programs through effective planning, development,

maintenance and coordination of fish and wildlife conservation and

rehabilitation features.

 b. Section 662 describes the compliance responsibilities of

Federal agencies, with the exception, in subsection 662(g), that

projects or separable project units that had obligated sixty percent

of their estimated construction costs, as of 12 August 1958, are

exempt from the requirements of the FWCA.

 (1) Subsection 662(a) provides that whenever the waters of

any stream or other body of water are proposed to be impounded,

diverted, the channel deepened, or otherwise controlled or modified,

including the issuance of permits to conduct such a modification, the

Corps shall consult with the USFWS and/or the NMFS as appropriate, and

the agency administering the fish and wildlife resources of the state.

This consultation shall consider conservation of fish and wildlife

resources with the view of preventing loss of and damages to such

resources as well as providing for their development and improvement

in connection with such water resources development. Additionally, 
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although not a requirement of the FWCA, full consideration should also

be given to the potential for collaboration with the programs of the

USFWS, the NMFS and the appropriate state fish and wildlife agencies

in order to more efficiently utilize the financial and technical

resources of the parties involved in a manner similar to the process

established under the Coastal America Partnership to which the Corps

is a signatory; both the original MOU, dated 16 April 1992 and the

most recent MOU, dated 12 July 1994.

 (2) Subsection 662(b) provides that any reports and

recommendations of the fish and wildlife agencies shall be included in

authorization documents for the construction or for the modification

of water resources projects. The Corps shall give full consideration

to the reports and recommendations of the fish and wildlife agencies,

and include such justifiable means and measures for fish and wildlife

mitigation and/or enhancement as the Corps finds should be adopted to

obtain maximum overall project benefits and that are consistent with

the principals of ecosystem restoration and protection.

 (3) Subsection 662(c) authorizes the modification or

additions of structures and operations to water resources projects not

substantially completed as of the date of the Act and to acquire lands

for the conservation of fish and wildlife resources. For projects

authorized prior to the date of enactment, such modifications or land

acquisition shall be compatible with the basic project purposes; the

costs shall be an integral part of the cost of such projects; and the

costs allocated to fish and wildlife conservation may be cost shared

by a non-Federal interest. However, prior to any land acquisition a

report must be provided to Congress and the acquisition authorized in

accordance with subsection 663(c).

 (4) Subsection 662(d) requires that the planning,

construction or installation, and maintenance of such means and

measures adopted for fish and wildlife conservation purposes shall be

an integral part of the cost of such projects. The costs associated

with improvements for fish and wildlife conservation shall not extend

beyond those necessary for land acquisition; facilities as recommended

in project reports; modification of the project; and/or modification

of project operations. These costs shall not include the operation of

fish and wildlife facilities.

 (5) Subsection 662(e) authorizes the Corps, if construction

is to be conducted by the Corps, to transfer general investigation,

engineering, or construction funds to the USFWS and/or the NMFS, as

appropriate, to conduct all or part of the investigations necessary to

carry out the provisions of Section 662(a). This requirement, along

with those of subsections (a), (b), (d) and (f) are met with the

execution of the 1982 Transfer Funding Agreement with the between the

Corps and the Department of the Interior (USFWS). This agreement

establishes procedures whereby information on fish and wildlife

resources is provided to the Corps for consideration in all

investigations and activities covered by the FWCA.

 (6) Subsection 662(f) requires that reports to Congress

include an estimate of the fish and wildlife benefits or losses for

projects, including benefits for measures recommended specifically for

enhancement; that part of the cost of joint-use facilities allocated

to fish and wildlife; and, that part of the cost to be reimbursed by

non-Federal interests.
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 c. Section 663 provides that in subsection 663(a) consistent

with primary project purposes, project land and water areas shall be

made available for conservation, maintenance, and management of fish

and wildlife and their habitat by the states or the Secretary of the

Interior. Use of such areas under the authority of this Act shall be

in accordance with general plans as provided for in subsection 663(b)

and the 1955 agreement between USFWS and the Corps. Subsection 663(c)

provides that before properties are acquired to preserve and assure,

for the public benefit, the fish and wildlife potentials of a project

area, specific authorization must be obtained from Congress; unless,

these properties are consistent with the requirements of Section

906(b) of WRDA 1986. (See also paragraph 19-8(a)(2))

19-18. The Endangered Species Act (ESA) of 1973 (Public Law 93-205). The (ESA), as amended, has a unique place within the water resources

program of the Corps as it is one of the few pieces of environmental

legislation that has criminal liability associated with non-compliance

with its provisions. The ESA itself is divided into three principal

areas. First, Section 4 requires the identification and listing of

imperiled species, as well as their critical habitat. Second, and

perhaps the most important provision for Corps activities, Section 7

prohibits agency actions from jeopardizing listed species or adversely

modifying their designated critical habitat. Section 7 also requires

agencies to undertake affirmative programs for the conservation of

listed species. Finally, Section 9 prohibits all persons, including

all Federal, state and local governments, from taking listed species

of fish and wildlife. The important provisions of Section 7 are

outlined below, with additional information provided in paragraph 25-

11 and in ER 1105-2-100, Chapter 7 which provides the guidance

necessary for compliance. Offsetting measures, environmental design

features, or environmental protection measures for endangered species

under Section 7 of ESA should be a separable element from habitat

mitigation under the (FWCA) and Corps regulations for wetlands (ER

1105-2-100, para. 7-49).

 a. Section 7(a) of the amended ESA, requires all Federal

agencies, in consultation with the Secretary of the Interior or

Commerce, to utilize their authorities in furtherance of the purposes

of the ESA by carrying out programs for the conservation of endangered

and threatened species protected by the ESA. Additionally, on 

28 September 1994 a Memorandum of Understanding (MOU) was signed by

the Acting Assistant Secretary of the Army along with six other

Federal departments to establish a general framework for greater

cooperation and participation among the departments in the exercise of

their responsibilities under the ESA. The MOU stated that the

departments “ ... will work together to achieve the common goals of (1)

conserving species listed as threatened or endangered under the ESA;

(2) using existing federal authorities and programs to further the

purposes of the ESA; and, (3) improving the efficiency and

effectiveness of interagency consultations conducted pursuant to

Section 7(a)(2) of the ESA.” Further, Section 7 of the ESA also

requires that all Federal agencies, in consultation with either the

USFWS or the NMFS, shall insure that any action authorized is not

likely to jeopardize the continued existence of any endangered species

or threatened species or result in the destruction of their critical

habitat.

 

 b. Section 7(b) of the amended ESA requires the USFWS and/or

the NMFS to complete the consultation within 90 days after the date it

was initiated unless the Corps, the USFWS and/or the NMFS mutually

agree to an extension.
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 c. Section 7(c) of the amended ESA, requires the Corps, on

all construction projects for which no contract for construction had

been entered into or for which no construction had begun as of 10

November 1978, to request of the USFWS and/or the NMFS information

regarding species listed or proposed to be listed that may be in the

proposed project area. If the USFWS and/or the NMFS advises that

listed species may be present, the Corps shall conduct a biological

assessment to identify any listed species which are likely to be

affected by the project. The biological assessment shall be completed

within a time period mutually agreed to by the Corps, the USFWS,

and/or the NMFS, but before any contract for construction is entered

into and before construction is begun. If the findings of the

biological assessment determine that an endangered or threatened

species or its critical habitat will be impacted, the Corps must

notify the USFWS and/or the NMFS of these findings. This notification

triggers the formal consultation process. Under the ESA, the finding

by the Corps that a proposed construction or operational activity will

negatively impact an endangered or threatened species or its critical

habitat will initiate the preparation of a biological opinion by the

USFWS and/or the NMFS. This biological opinion must include a summary

of the information upon which the opinion is based; a detailed

discussion of the proposed action’s effects on the species or its

critical habitat; and the opinion of the USFWS and/or the NMFS as to

whether the proposed action is likely to jeopardize the continued

existence of a listed species or result in the destruction or adverse

modification of its critical habitat. The USFWS and/or the NMFS have

basically two options, (1) to determine that the proposed action will

not jeopardize the species and/or its critical habitat or (2) that the

proposed action will result in jeopardy to the species and/or its

critical habitat. When there is a finding of potential jeopardy, the

USFWS and/or the NMFS must include in their biological opinion

reasonable and prudent alternatives that would allow the project to

continue.

 d. Section 7(d) of the amended ESA states that after

initiation of consultation required under Section 7(a) the Corps shall

not make any irreversible or irretrievable commitment of resources

which will have the effect of foreclosing the formulation or

implementation of any reasonable and prudent alternatives to avoid

jeopardizing the continued existence of any endangered or threatened

species or their critical habitat.

 e. Section 7(e) provides authority for the establishment of

the Endangered Species Committee (composed of six cabinet level

members and one state representative) that is empowered to grant an

exemption from the requirements of Section 7(a) to Federal agencies,

the governor of a state and/or permit applicants.

 f. Section 7(h) provides the criteria to be considered by the

Endangered Species Committee whether or not to grant an exemption to

Section 7(a) of the ESA.

19-19. The Clean Water Act of 1972, as amended (Public Law 92-500 and

33 USC 466 et. seq.). The objective of the Clean Water Act (CWA) as

amended, is to “... restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” The CWA goes on to state

that this objective is to be achieved, in part, by providing interim

water quality which provides for the “ ... protection and propagation

of fish, shellfish , and wildlife ...”. The Corps has two primary

responsibilities under the CWA, i.e., compliance with Section 401,

state water quality certification, and Section 404 (b)(1), the

discharge of dredged or fill materials into the waters of the United
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States. (See also Chapter 3, paragraph 3-5 and ER 1105-2-100, Chapter

7; and, 40 CFR 230)

19-20. Legal Basis for Mitigation of Damages to Fish and Wildlife

Resources. There are three different and substantive legal

requirements as to when the Corps must provide mitigation for adverse

impacts on the environment, including fish and wildlife resources as

discussed in paragraph 19-16. For Corps projects involving the

discharge of dredged or fill materials into the waters of the United

States, the 404 (b)(1) guidelines (40 CFR 230) establish the

mitigation standard for adverse impacts on the aquatic environment. 

The guidelines (40 CFR 230.10(d)) prohibit the discharge of dredged or

fill material “... unless appropriate and practicable steps have been

taken which will minimize potential adverse impacts of the discharge

on the aquatic ecosystem.” In addition, the FWCA, Section 662(b)

requires that reports submitted to Congress for authorization of Civil

Works projects include “ ... such justifiable means and measures” of

mitigation “ ... to obtain maximum overall project benefits”. Finally,

supplementing the responsibilities and authorities of the Secretary of

the Army under the Fish and Wildlife Coordination Act, Section 906,

entitled “Fish and Wildlife Mitigation” was enacted in 1986 as part of

the comprehensive Water Resources Development Act. Section 906(d)

requires reports submitted to Congress for authorization shall contain

“ ... a recommendation with a specific plan to mitigate fish and

wildlife losses created by such project or a determination by the

Secretary that such project will have negligible adverse impacts on

fish and wildlife.” (See also paragraph 19-8.a(4) above). Finally,

while not technically defined as mitigation, “reasonable and prudent

measures” are to be provided by either the USFWS or the NMFS when a

project will jeopardize the continued existence of an endangered or

threatened species and/or their critical habitat under the ESA. These

reasonable and prudent measures must be complied with in order to

construct and/or operate a project and, because they represent a means

to lessen or eliminate an impact, could be classified as a mitigation

requirement. 

19-21. Mitigation Principals. Damages to fish and wildlife resources

will be prevented to the extent practicable through good planning and

design incorporating the mitigation principles defined within Council

on Environmental Quality’s (CEQ) NEPA guidelines, i.e., first avoid

the impact; next, minimize the impact; and, finally compensate for

unavoidable damages to significant fish and wildlife resources. 

Measures to offset unavoidable damages to significant fish and

wildlife resources will be included in projects when the cost of these

measures are justified by the combined monetary and nonmonetary

benefits attributable to the proposed measures. These mitigation

plans are to contain the most efficient and least costly measures

appropriate to reduce fish and wildlife resource losses. Mitigation

of losses will be provided to the maximum extent practicable through

the development and implementation of mitigation measures on project

lands. If project lands cannot fulfill our mitigation requirements,

then separable public lands adjacent to project lands, to the extent

possible, should be considered next. Any consideration of separable

private lands not adjacent to project lands should be the last option

considered. Acquisition of an interest in any lands or waters for

mitigation of damages to fish and wildlife resources that do not

comply with the limited authority provided by Subsection 906(b) of

WRDA 1986 requires specific congressional authorization (See paragraph

19-8.a(2)). Measures to mitigate project caused damages to

significant fish and wildlife resources are project costs and will be

allocated to the responsible (causative) purposes of the project in

the same way as other project costs. Mitigation costs will also be
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shared to the same extent as the other costs allocated to such

purposes are shared. The mitigation costs include separable first

costs (any lands and construction) and separable operation,

maintenance, repair, replacement, and rehabilitation (OMRR&R) costs. 

 a. Justification. The basis for justifying which fish and

wildlife resources are to be mitigated should be a combination of two

major factors: (1) those significant fish and wildlife resources that

will be unavoidably damaged as determined by an impact assessment of

various alternative plans being considered; and (2) an examination of

the cost effectiveness of various mitigation alternatives designed to

achieve the mitigation goals established by the impact analysis. The

significance of ecological resources to be protected, restored or

created must be established through their legal or institutional

recognition, their scientific recognition, and/or their public

recognition. (See also the P&G and ER 1105-2-100) A separate benefit

cost ratio for mitigation measures will not be computed, nor should

economics be used as the only basis for justification of mitigation. 

However, dollar values associated with user-days generated by a

mitigation plan, as well as user-days lost because of project

construction, are proper factors to consider. Additionally,

nonmonetary values, e.g., habitat units lost and gained with each

proposed mitigation measure, should be developed and considered, along

with the monetary values, when selecting and determining the

justification of mitigation plans. Nonmonetary benefits should be

quantified in appropriate units such as, e.g., increased number of

nests, habitat units, quantity and quality of acres modified

(including acres of specific habitat type), diversity indices, etc.

With and without project conditions should be briefly described and

each additional increment of the proposed modification should have its

associated quantifiable benefits documented. Nonmonetary values

should also reflect the importance or significance of the affected

fish and wildlife resources from local, regional and national

recognition, as noted above. The objective is to maintain the

integrity and viability of significant natural resources and their

contributions to local and regional ecosystems rather than considering

all resource losses inherently equal. This demands that the concept

of ecosystem management be fully applied, i.e., planners need to be

aware of the biological and physical relationships among individual

species and among different species in assessing significance. 

Finally, mitigation plans shall be justified incrementally, i.e., when

an increment or management measure is added to a plan, it should

increase the plan’s net benefits.

 b. Implementation. Generally, the Corps implements

mitigation measures concurrently with the initiation of construction

of other project features as per Subsection 906(a) WRDA 1986 (See also

paragraph 19-8a(1) and ER 1105-2-100, Chapter 7). Since this requires

that the Corps maintain the ability to condemn lands, reports

proposing land acquisition for mitigation purposes should not contain

recommendations that would preclude the Corps from exercising the

power of eminent domain.

 c. Operation and Maintenance. Responsibility for operation,

maintenance, rehabilitation and replacement (OMRR&R) of mitigation 
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features is typically defined in authorizing legislation. However,

since the passage of WRDA 1986, Corps policy has been for the nonFederal interest to assume 100 percent of the OMRR&R. Mitigation

features should be operated and maintained by the agency that can most

efficiently do the job. Reports proposing the authorization of

mitigation measures should identify the agency that will subsequently

be responsible for funding and managing the OMRR&R. Responsibility

for funding OMRR&R rests with the agency responsible for those

activities. Authorization reports should not propose that the Corps

budget funds annually for transfer to other agencies for OMRR&R

activities. At projects not operated and maintained by the Corps,

where local interests other than the project sponsor is the managing

agency for mitigation features, a lump sum payment for the Federal

share of the OMRR&R (when minor) will be made to the managing agency

rather than being deducted from the non-Federal contribution toward

first costs. This will be covered in preauthorization planning

studies, and, unless there is some legal restraint, the Corps will

require the project sponsor's share of mitigation OMRR&R costs to be

capitalized and turned over to the managing agency concurrently with

the Federal contribution.

 e. Review of Completed Projects. It is the general policy of

the Corps to review completed projects for additional mitigation

measures only in response to congressional authorization, other legal

requirements, or through the application of Section 216 of the River

and Harbor and Flood Control Act of 1970 (RHFCA 1970). This provision

of the RHFCA 1970 authorizes the Corps to undertake studies to review

the operation of completed federal projects and recommend project

modifications “ ... when found advisable due to significantly changed

physical or economic conditions ... and for improving the quality of

the environment in the overall public interest”. (See also ER 1165-2-

119, “Modifications to Completed Projects”)

 f. Monitoring. Post-construction monitoring of mitigation

measures may be necessary, in some cases, and should be designed to

evaluate whether or not the mitigation measures are working as planned

following their construction. Adaptive management is a technique that

should be considered for monitoring programs for projects/measures

that have the potential for uncertainty in achieving their objectives. 

(See ER 1105-2-100, Chapter 4) The cost and duration of a mitigation

monitoring program should be included in the estimate of the

construction cost of the project and in appropriate reports

(feasibility reports, re-evaluation reports, or other decision

documents, as well as cost sharing agreements). The monitoring plan

will describe the nature of the monitoring required as well as the

period of time within which it will be conducted. Monitoring

proposals will consider the local sponsor's ability to carry out and

fund its monitoring responsibilities and specify who will actually

carry out the monitoring activities. Any monitoring requirements will

be clearly specified in the Project Cooperation Agreement (PCA).

 (1) Monitoring for mitigation measures will be cost-shared

with the local sponsor in accordance with the project purpose that

caused the damages to the fish and wildlife resources.

 (2) The local sponsor will assume normal O&M responsibility

for the project, including any monitoring requirements specified in

the PCA, upon receipt of the O&M manual. There may be instances where

it would be more cost effective for Corps operational elements to

conduct specified monitoring responsibilities, with appropriate nonFederal reimbursement.
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 g. Relationship of Mitigation to Ecosystem Restoration and

Protection. As discussed above in paragraphs 19-2 through 19-6 and in

paragraph 19-16 the Corps focus is upon recognizing the importance of

fully functioning ecosystems. Mitigation deals, in part, with the

concept of ecosystem restoration and protection by its recognition of

the importance of certain features of the ecosystem. Mitigation

addresses these ecosystem features by attempting to eliminate and/or

lessen the impact of our water resource activities upon these

features. Restoration and protection activities, on the other hand,

will often utilize the same techniques as used in mitigation; however,

the purpose of our activities will be to restore some ecological

condition that has been degraded, either by our activities or those of

others. Consequently, the procedures used to justify our activities,

whether they are for mitigation or restoration purposes, will

typically be the same. The only distinguishable difference between

mitigation and restoration activities is when they are applied. This

is further clarified in the discussions that follow on the beneficial

uses of dredged material and the project modifications for improvement

of the environment.

19-22. Consideration of the Beneficial Uses of Dredged Material

Within the Civil Works Program. Section 204 of WRDA 1992 (Public Law

102-580), as amended by Section 207 of WRDA 1996 (Public Law 104-303),

and ER 1105-2-100 recognize that clean dredged materials can be used

as a resource to benefit aquatic ecosystems. Important provisions of

Section 204 include:

 a. Section 204(a) authorizes the Secretary of the Army to

carry out projects for the protection, restoration, and creation of

aquatic and ecologically related habitats, including wetlands

(hereinafter referred to as ecosystem restoration and protection

projects) in connection with dredging for construction, operation, or

maintenance by the Corps of an authorized Federal navigation project.

 b. Section 204(b) states that projects may be undertaken upon

a finding by the Secretary of the Army that the environmental,

economic, and social benefits of the project, both monetary and

nonmonetary, justify the cost thereof and the project would not result

in environmental degradation.

 c. Section 204(c) requires non-Federal interests to enter

into a cooperative agreement in accordance with the requirements of

Section 221 of the Flood Control Act of 1970 and provide 25 percent of

the cost associated with the construction of the project including

provision of all lands, easements, rights-of-way, and necessary

relocations (LERR). The non-Federal sponsor must also agree to pay

100 percent of the OMRR&R costs associated with the project.

 d. Section 204(d) states that project costs are limited to

incremental construction costs in excess of those costs necessary to 

dredge the authorized navigation project in the most cost effective

way, consistent with economic, engineering, and environmental

criteria. 

 e. Section 204(e) indicates that in developing and carrying

out a project for navigation involving the disposal of dredged

material, the Secretary of the Army may select a disposal method that

is not the least cost option if the Secretary determines that the

incremental costs of such disposal method are reasonable in relation

to the environmental benefits.
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 f. Section 204(f) establishes an annual appropriations limit

of $15,000,000 for the Section 204 program.

19-23. Justification of Ecosystem Restoration Using Dredged Material. 

Justification is established by demonstrating that the monetary and

nonmonetary benefits (outputs) of the ecosystem restoration project

are greater than the incremental costs above the base plan, in a

manner consistent with the justification process described for

mitigation in paragraph 19-21.a above. The base plan for navigation

purposes is defined as the plan that accomplishes the disposal of

dredged material associated with the construction or maintenance

dredging of navigation projects in the least costly manner, consistent

with sound engineering practices and in compliance with all applicable

Federal and state environmental standards, including those established

by Section 404 of the CWA of 1972, as amended, and Section 103 of the

Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as

amended. If the ecosystem restoration project is part of the base

plan, it is a navigation (harbor or inland system) construction or

maintenance cost and funded accordingly. Where the ecosystem

restoration project is not part of the base plan for the navigation

purpose, the base plan serves as a reference point for measuring the

incremental costs of the ecosystem restoration project that are

attributable to the environmental purpose. Where the ecosystem

restoration project involves separable increments, each increment must

be justified. In the case of recommendations for new navigation

improvements, where justification of the ecosystem restoration

measures have been demonstrated, the incremental costs of such

measures shall not be included in the overall navigation project

benefit-cost ratio and navigation net benefits in accordance with

Section 907 of WRDA 1986. (See also paragraph 19-8.b)

19-24. Cost Sharing of Ecosystem Restoration Using Dredged Material. 

Ecosystem restoration projects are funded as navigation construction

or O&M costs up to the level of the base plan. 

 a. Non-Federal interests must agree to provide 25 percent of

the incremental costs above the base plan associated with construction

of the ecosystem restoration project, including provision of all LERR.

No credit will be allowed for work-in-kind. Where the value of LERR

exceeds the non-Federal sponsors 25 percent share, the sponsor will be

reimbursed for the value of LERR exceeding the 25 percent non-Federal

share. The non-Federal sponsor is responsible for the entire cost of

OMRR&R associated with the project. 

 b. While the cost sharing policy for ecosystem restoration

projects allows for reimbursement in cases where the value of lands,

easements and rights-of-way exceed the 25 percent non-Federal share,

the land values for most ecosystem restoration projects should be less

than 25 percent of total project costs. 

19-25. Environmental Monitoring of Ecosystem Restoration Using

Dredged Material Projects. Allowance in project costs can be made for

reasonable follow-up and monitoring studies to assure performance

criteria or environmental compliance commitments are met. Monitoring

costs will be considered part of construction costs and cost shared

accordingly. 
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19-26. Procedures for Ecosystem Restoration Using Dredged Material

for New Navigation Projects or Modifications (Construction). Feasibility studies for new navigation projects or modifications to

existing navigation projects shall include an examination of the

feasibility of using dredged material for ecosystem restoration. 

Ecosystem restoration measures included in specifically authorized

navigation projects do not rely on the authority of Section 204 of

WRDA 1992 and do not count against the annual appropriation limits of

Section 204. Funding for implementation of these measures would be

requested as part of the specific Construction, General (CG) funding

for the new navigation project or improvement following authorization. 

19-27. Procedures for Ecosystem Restoration Using Dredged Material

for Existing Navigation Projects (Maintenance Dredging). Identifying

opportunities for use of maintenance dredging material for ecosystem

restoration projects will require the close cooperation of planning

and operations elements and early coordination with potential nonFederal sponsors. In the development of dredged material management

plans for each Federal project, an examination of the potential for

ecosystem restoration projects using dredged material should be

included. Large habitat projects using maintenance dredging material

which are beyond the scope of the Section 204 program may be pursued

under a specific study authority or studied under the authority of

Section 216 of the River and Harbor and Flood Control Act of 1970, (PL

91-611) and be specifically authorized. (See paragraph 5-2.d)

19-28. Procedures for Ecosystem Restoration Using Dredged Material

for Navigation Projects In Pre-Construction Engineering and Design

(PED) or Construction. The authority of Section 204 of WRDA 1992 may

be used to add ecosystem restoration measures to utilize dredged

material from navigation projects in the PED or construction phases

where such measures were not included in the authorized plan for the

project. PED or construction funds for the basic navigation project

would be utilized for the initial appraisal for these ecosystem

restoration projects. Ecosystem restoration projects added during the

PED phase must be carefully coordinated to be compatible with the

navigation project schedule and not unduly delay the initiation of

navigation project construction. 

19-29. Consideration of Project Modifications for Improvement of the

Environment. Section 1135 of WRDA 1986, as amended (Public Law 99-

662) recognizes the potential of modifying existing Corps project

structures, operations, and/or areas where the Corps project

contributed to the degradation of the ecosystem for the purposes of

providing environmental benefits in the public interest. Relevant

provisions of Section 1135 of WRDA 1986, as amended, include: 

 a. Section 1135(a) which authorizes the Secretary of the Army

to review the operation of water resources projects constructed by the

Secretary to determine the need for modifications for the purpose of

improving the quality of the environment in the public interest. 

 b. Section 1135(b) which authorizes the Secretary of the Army

to make such modifications in the structures and operations of water

resources projects which are feasible and consistent with the

authorized project purposes, and which will improve the environment in

the public interest. 
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 c. Section 1135(c) which states that if the Secretary

determines that construction of a water resources project by the

Secretary or operation of a water resources project constructed by the

Secretary has contributed to the degradation of the quality of the

environment, the Secretary may undertake measures for the restoration

of environmental quality at locations that have been affected by the

construction or operation of the project.

 d. Section 1135(d) which states that the non-Federal share of

the cost shall be 25 percent and not more than 80 percent of the nonFederal share may be in-kind. Not more than $5,000,000 in Federal

funds may be expended on any single modification.

 e. Section 1135(g) which authorizes maximum annual

appropriations of $25 million for this section.

 f. Section 1135(h) which defines a “water resources project

constructed by the Secretary” to include a water resources project

constructed or funded jointly by the Secretary and the head of any

other Federal agency.

19-30. Eligibility and Objectives for Section 1135 Projects. 

 a. The proposed project must modify the structures or

operations of a permanent project constructed by the Secretary of the

Army in response to a Corps construction authority. The scale of the

proposed project modification should be reasonable with respect to the

project being modified. Section 1135 may not be used to modify

projects where the Corps involvement consists of works constructed

under the generic Disaster Relief Acts and Section 5 of Public Law 77-

228, as amended. Consideration should be given to using an authority

other than Section 1135, if operational only changes are proposed

which can be accomplished without additional cost.

 b. The focus of the project modification should be on

measures designed to achieve ecosystem restoration and protection

objectives, as discussed in paragraphs 19-2 through 19-6 above, to a

level that could be expected to sustain the natural carrying

capacities of fish and wildlife resources. Considerations include:

 (1) The emphasis of the proposed modification should be to

restore or otherwise improve degraded ecosystems to their natural

integrity, productivity, stability and/or biological diversity. 

 (2) The focus should be more toward multiple species that are

representative of the biological communities being examined and not

solely those of recreational and/or commercial importance. 

Acknowledgment of recreation-oriented outputs of an ecosystem

restoration project is appropriate; however, these cannot be the 

primary basis for justification.

19-31. Objectives and Constraints for Section 1135 Projects.

 a. The acquisition of additional lands should be kept to a

minimum. As a target, land acquisition should not exceed 25 percent

of total project modification cost.

 b. Using the Corps engineering expertise to develop innovative

solutions to ecosystem problems is encouraged; however, the

accompanying design standards should reflect the legitimate risks

associated with potential failure.
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 c. Since the purpose of any proposed modification is ecosystem

restoration and protection, proposals should be designed to avoid any

need for a mitigation requirement. Further, Section 1135 proposals

should not be used to fulfill the mitigation requirements of the basic

project or any mitigation requirements that have been incurred by the

local sponsor including their use as part of a mitigation bank.

 

 d. The proposed modification must be justified on the basis of

its monetary and nonmonetary benefits exceeding the monetary and

nonmonetary costs, in a manner consistent with the justification

process described for mitigation in paragraph 19-21a above.

 

 e. Modifications designed primarily to halt erosion, to

control sedimentation, to add a new project purpose such as water

supply, or the addition of waterborne recreation at an existing dry

reservoir should not be pursued using Section 1135 authority.

19-32. Program Cost Sharing for Section 1135 Projects. The planning

and design phase(s) will initially be fully funded by the Government. 

However, these costs shall be included as part of the total project

modification costs to be shared 75 percent Federal and 25 percent nonFederal.

 a. In meeting its responsibility, the non-Federal sponsor

shall provide all lands, easements, rights-of-way, suitable borrow and

dredged or excavated material disposal areas, and perform or ensure

performance of all relocations (LERRD), required for the project

modification which are not otherwise available due to the construction

or operation of the existing project. 

 b. The value and credit for LERRD provided for the project

modification by the non-Federal sponsor shall be determined as

described in ER 405-1-12 and the Section 1135 program guidance. If

the value of the identified LERRD represents less than 25 percent of

the total project modification costs, the non-Federal sponsor shall

provide, during the period of implementation, a cash contribution in

the amount necessary to make its total contribution equal to 25

percent.

 c. If the value of LERRD contributions exceeds 25 percent of

the total project modification costs, the Government shall refund the

excess to the non-Federal sponsor. However, the non-Federal sponsor

shall not receive any credit for LERRD previously provided as an item

of cooperation for another Federal project nor shall the value thereof

be included in the total project modification costs.

 d. Credit will be allowed for work-in-kind provided that these

services do not result in a reimbursement by the Government and their

combination with the LERRD does not exceed 25 percent of project

costs.

 e. Federal Aid in Wildlife Restoration Act (Pittman-Robertson)

and Federal Aid in Sport Fisheries Restoration Act (Dingel-Johnson)

funds, and North American Wetlands Conservation Act funds (Mitchell

Bill) may not be used by states as the non-Federal share of a Section

1135 project modification.

19-33. Operation and Maintenance for Section 1135 Projects. Usually,

the non-Federal sponsor shall be responsible for 100 percent of the

incremental OMRR&R costs associated with the project modification. 

The non-Federal sponsor shall OMRR&R the project modification in a

manner so that liability will not arise under the Comprehensive
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Environmental Response, Compensation and Liability Act (CERCLA). 

19-34. Cost Allocation for Section 1135 Projects. Costs for

implementation and OMRR&R of project modifications undertaken pursuant

to Section 1135 are incremental to the existing costs of the project

being modified. The ecosystem restoration and protection features are

in addition to authorized project purposes, and are not for

mitigation. Therefore, the costs of the project modifications should

not be allocated to other project purposes, but should be considered

solely as ecosystem restoration and protection costs and shared in

accordance with the provisions of Section 1135 of WRDA 1986, as

amended. (See also paragraph 19-32 above)

19-35. Monitoring of Section 1135 Projects. Post-implementation

monitoring may be warranted for some project modifications. The

discussion of the recommended plan should include a description of and

the rationale for any proposed monitoring. Monitoring should be

limited to a 3- to 5-year period. The cost of monitoring will be

included in the total project modification cost and cost shared with

the non-Federal sponsor.

19-36. Consideration of Aquatic Ecosystem Restoration Within the Civil

Works Program. Section 206 of WRDA 1996 authorizes the Secretary to

carry out projects for aquatic ecosystem restoration and protection if

the Secretary determines that the project will improve the quality of

the environment, is in the public interest and is cost-effective. 

Section 206 projects will be accomplished in a manner generally

consistent with the plan formulation and evaluation concepts outlined

in paragraphs 19-2 through 19-6, above, and ER 1105-2-100. Project

justification will require the use of cost effectiveness and

incremental cost analysis techniques. Not more than $5 million in

Federal funds may be spent at a single locality. The program is

limited to $25 million in appropriations in a fiscal year. A nonFederal interest must provide 35 percent of the project cost including

all LERR as well as a 100 percent of all OMRR&R costs. Funds are

budgeted and appropriated at the program level, and managed at

Headquarters Planning Division.

19-37. Consideration of Cultural Resources Management Within the Civil

Works Program. Cultural resources management is an equal and integral

component of natural resource management at operating Civil Works

projects. Further, our traditional view of cultural resources as

representative of only the non-living and non-renewable components of

natural resources as discussed under Section 101(b) of NEPA is

changing. Today, as we gain greater insights and knowledge of other

cultures, we are realizing that landscape features can have

significant cultural significance as well as corresponding ecosystem

values. Thus, it is the policy of the Corps to identify, evaluate,

and manage cultural resources that are eligible for listing in, or

listed in, the National Register of Historic Places. Associated with

this policy is the Corps responsibility to ensure that cultural

resource management activities are consistent with Federal laws and

regulations pertaining to Native American rights, curation and

collections management, and the protection of resources from looting

and vandalism.
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a. Mandatory Center of Expertise (MCX). The Corps MCX for

Curation and Management of Archaeological Collections at St. Louis 

manages Corps-wide curation needs assessments and design services for

the curation of archaeological collections. The MCX reviews the

status of Corps-wide curation of collections and associated documents

and ensures USACE compliance with the provisions of the Native

American Graves Protection and Repatriation Act (NAGPRA), Public Law

101-601, and 36 CFR Part 79 (Curation of Federally-Owned and

Administered Archeological

Collections).

b. Tribal Consultation. Consistent with NAGPRA, Public Law

95-341, American Indian Religious Freedom Act and Public Law 103-141,

Religious Freedom Restoration Act of 1993, commanders are required to

consult with affected tribes, groups, or individuals regarding

appropriate action for project effect upon sacred sites, important to

the practice of traditional Native American religion. Native American

consultation topics may include access to sites, use and possession of

sacred objects, freedom to worship unburdened except when government

limitations meet the compelling interest test, and suitable

preservation measures. Tribal consultation pursuant to cultural

resource law may require Native American and/or Native Hawaiian

attendance at meetings, on-site visits, and the sharing of information

akin to intellectual property.

 c. Cultural Resources Management Plans. In accordance with

provisions of the Archeological Resources Protection Act (ARPA) of

1979, as amended, and the National Historic Preservation Act (NHPA) of

1966, as amended, district commanders ensure that Cultural Resources

Management Plans (CRMP), where appropriate, are developed for

subordinate USACE projects.

 d. Cultural Resources Protection Policy. Commanders have the

ability to restrict access to associated records that contain

information relating to the nature, location or character of a

prehistoric or historic resource unless the commander determines that

such disclosure would not create a risk of harm, theft or destruction

to the resource or to the area or place where the resource is located. 

In addition, requests by other agencies or persons to conduct historic

or archeological investigations of any type on Corps managed or

controlled lands, sites, or properties, must be in accordance with the

requirements of the ARPA of 1979, as amended (Public Law 96-95). 

Procedures for the development of permit requests as well as review

and approval of permits for these investigations can be found in ER

405-1-12. Corps land managers should note that violators of protected

properties can be prosecuted under 36 CFR Part 327, 14(a), which

provides protection for historic properties and public property, or

ARPA. 

 e. Additional or more detailed information on the treatment

of the cultural environment at Corps operating projects can be found

in ER/EP 1130-2-540, Project Operations: Environmental Stewardship.

19-38. Cultural Resources Management in the Planning Process. Historic properties are finite, nonrenewable resources which must be

taken into account in formulating recommendations for project

authorization and implementation. Preservation of significant

cultural resources through avoidance of effects is preferable to any

other form of mitigation. As early in the planning process as is

possible, alternative solutions are sought to water resources problems

that avoid effects on properties that are either listed or eligible

for listing in the National Register, and when such properties can be
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preserved, full consideration is given to this course of action. 

Those actions having an unavoidable effect or no effect on National

Register or eligible historic properties are fully coordinated with

the appropriate State Historic Preservation Officer (SHPO) and the

Advisory Council on Historic Preservation (ACHP) in accordance with 36

CFR Part 800.

 a. In the multi-phased process leading to Congressional

authorization and construction of a project, cultural resource

considerations are characterized by the following activities.

 (1) Reconnaissance Phase Studies. Cultural resources

investigations during the Reconnaissance Phase of Planning are usually

restricted to a literature and records review, coupled with an on-site

inspection (including, when possible, field check of recorded or

potential site locations) or pedestrian overview. In unusual cases,

the results of the Reconnaissance Phase studies may indicate that the

cost of adequately mitigating the effects of alternative plans upon

historic properties could exceed one percent of the total Federal

amount authorized for appropriation. In those cases, the

Reconnaissance Phase Report includes a narrative on the potential

need to exceed the one percent level. This narrative includes the

factual basis for concern and the need or likelihood of seeking a

waiver under Section 208 of the National Historic Preservation Act

Amendments of 1980.

 (2) Feasibility Phase Studies. In consultation with the SHPO, 

commands design and implement such studies as are necessary to

evaluate alternative plans in terms of their relative impact on

historic properties. These studies should, when conducted on a

sampling basis, provide for the efficient planning of any further

cultural resource investigations that may be needed prior to

initiation of construction. Feasibility phase studies are normally

accomplished on a sampling basis formulated within a research strategy

tailored to insure adequate coverage of the environmental zones within

the alternative plan impact areas. However, when considered necessary

or appropriate by the district commander, a sample survey may be

waived in favor of an intensive survey/inventory, approaching 100

percent coverage, during the Feasibility Phase. Again, cultural

resource studies completed during this phase of planning, may indicate

that the cost of adequately mitigating the effects of a selected or

primary plan upon historic properties could exceed one percent of the

total Federal amount authorized for appropriation. In those cases,

the feasibility phase report shall include a narrative on the

potential need to exceed the one percent level. 

 b. Preconstruction Engineering and Design Phase Studies.

 (1) During the period between completion of the feasibility

report and initiation of construction, intensive surveys/inventories,

if required or not previously conducted, are accomplished in the area

of potential environmental impact of the recommended plan or

authorized project. The results of such inventories serve as the

basis for formulation of plans for management of historic properties

prior to or during the construction and operational stages of

projects.

 (2) Such inventories are accomplished within the context of

an explicit research design, formulated in recognition of prior work

by the Corps and others, and include such testing and other

comparisons and evaluations as may be required to formulate a program

which provides a defensible basis to:
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 (a) Seek determinations of eligibility of resources for the

National Register of Historic Places.

 (b) Determine when a project will have "no effect" on historic

properties.

 (c) Identify historic properties whose value lie only in their

potential contribution to archeological, historic, or architectural

research. For such properties, it may be appropriate to develop

determinations of "no adverse effect" when a property's value can be

substantially preserved through the conduct of appropriate research,

and such research is conducted in accordance with applicable

professional standards and guidelines.

 (d) Determine the need to mitigate adverse project effects on

National Register and eligible properties in light of their historic

or architectural significance or their potential to further

archeological knowledge.

 (e) Develop plans and cost estimates for such mitigation or

other treatment of historic properties affected by the project.

 (f) Serve as the basis for negotiation of a memorandum of

agreement (if no memorandum has been previously prepared) with the

ACHP and the SHPO specifying actions which will be taken by the Corps

of Engineers prior to or during the project construction period to

mitigate adverse effects on National Register and eligible properties.

 (3) Should the estimated cost of these mitigation measures

exceed one percent of the total estimated Federal appropriation

required for construction of a project for which Congress has not

specifically authorized expenditures in excess of this amount, a

waiver request is submitted in accordance with Section 208 of the

National Historic Preservation Act Amendments of 1980 and procedures

established in ER 1105-2-100.

 c. When Civil Works planning studies include cultural

resources studies of lands held in fee title by the Corps of

Engineers, provisions of NAGPRA apply to cultural items covered by the

Act that are discovered in the fee owned lands. 

 (1) Cultural items, as defined by the Act, include human

remains, associated funerary objects, unassociated funerary objects,

sacred objects, and objects of cultural patrimony. 

 (2) In treating cultural items and coordinating with Native

American and/or Native Hawaiian groups, Corps commands are guided by

the CECW-O/CECW-P "Interim Guidance for the Native American Graves

Protection and Repatriation Act, Public Law 101-601", dated 5 June

1991, subsequent Corps-wide guidance issued from HQUSACE, and 43 CFR

Part 10 “NAGPRA Regulations, Final Rule”, dated 4 December 1995

19-39. Cultural Resources Management for Continuing Authority

Projects. Procedures for the identification, evaluation, and

mitigation of effects on historic properties within the impact area of

projects planned and implemented under Continuing Authorities for

flood control, navigation, streambank erosion control and shore

protection are also established in ER 1105-2-100.
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 a. Sections 103, 107, 111, and 205. The implementation of

projects under these authorities includes two planning phases

(reconnaissance and feasibility), preparation of plans and

specifications, and construction. Cultural resources investigations

during the reconnaissance phase of planning is consistent with the

overall objectives of the study as well as time and cost limitations. 

The purpose of this appraisal is to evaluate, document the extent of,

and validate the present knowledge of historic properties which might

be effected by water resource development. The review of available

information may also assist in the design of more intensive

investigations of the planning area and the development of cost

figures for later implementation phases. The feasibility phase should

complete the plan formulation process and result in the preparation of

a Detailed Project Report (DPR). If the literature and records review

and limited field examination conducted in the reconnaissance planning

phase reveal the presence, or likely presence of historic properties

within the areas of potential project effect, the Corps command

conducts an intensive survey/inventory. The results of the intensive

survey/inventory shall be presented in the DPR along with the proposed

plan for mitigation if adverse effects on historic properties will

occur.

 b. Should the estimated cost of mitigation measures exceed

one percent of the total estimated Federal appropriation required for

construction of a project for which Congress has not specifically

authorized expenditures in excess of this amount, a waiver request

shall be submitted in accordance with Section 208 of the National

Historic Preservation Act Amendments of 1980 and ER 1105-2-100.

 c. Section 14 and 208. Projects considered pursuant to these

Continuing Authorities are subject to a single planning phase prior to

the preparation of plans and specifications. Because of this

accelerated implementation process, all necessary literature and

records reviews, intensive survey/inventory, and interagency

coordination are accomplished prior to the preparation of plans and

specifications. If historic preservation mitigation is required, it

is completed prior to the award of contract for construction.

d. Section 14 and 208 projects are not exempt from compliance

with the National Historic Preservation Act of 1966 and 36 CFR Part

800.4 through 800.6 unless such projects comply with requirements

under 36 CFR Part 78 and/or occur within 30 days of a disaster or

emergency, or otherwise qualify as an emergency in accordance with

provisions of 36 CFR Part 800.12 "Emergency Undertakings."
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CHAPTER 20

AQUATIC PLANT CONTROL

20-1. Aquatic Plant Control Program. Section 104 of the River and

Harbor Act of 1958 (Public Law 85-500), as amended, and Sections 103,

105, and 712 of the Water Resources Development Act of 1986 (Public

Law 99-662) authorize the Corps of Engineers to cooperate with other

Federal and non-Federal (usually state) agencies in comprehensive

programs for the control of obnoxious aquatic plants. (ER 1130-2-500

and EP 1130-2-500 are applicable to this Corps program.) Funds

appropriated for this program are applied to three general categories

of activities, as follows:

 a. Planning. The planning part of the program is necessary to

determine whether there is justification for Federal (Corps)

involvement in an aquatic plant problem and to establish a specific

plan of action for dealing with plant infestations. There are three

planning studies: (1) Initial Appraisal; (2) Reconnaissance Report,

and; (3) Detailed Project Report (DPR). The Initial Appraisal and

Reconnaissance Report are accomplished with Federal funds. Subsequent

development of the DPR must be cost shared 50 percent Federal and 50

percent non-Federal.

 b. Management Operations. Where Federal involvement is

determined to be appropriate, aquatic plant control operations are

cost shared 50 percent Federal and 50 percent non-Federal in

accordance with the DPR, Project Cooperation Agreement (PCA) and

Annual Work Plan.

 c. Research. The thrust of the research effort is to identify

new and more efficient tools for aquatic plant control. The cost of

research dealing with problems and outputs that have regional or

nationwide importance is 100 percent Federal. The cost of research

conducted to provide local or site specific information is cost shared

50 percent Federal and 50 percent non-Federal. The Waterways

Experiment Station is the lead laboratory for the Corps Aquatic Plant

Control Research Program.

20-2. Program Controls.

 a. Through the use of an initial appraisal, the district will

determine the need for further study. If justified, a request for

authorization and funding for a reconnaissance report is forwarded

through the division and HQUSACE (CECW-ON) to the OASA(CW) in a letter

report. The initiation of aquatic plant control reconnaissance

reports must be approved by the ASA(CW). New studies will not be

initiated unless the proposed project outputs are consistent with

current budget criteria for new start construction projects. A

reconnaissance report must be completed and submitted through the

division and HQUSACE (CECW-ON) to the OASA(CW) for review and

approval. A negotiated detailed study cost sharing agreement and a

letter from the local sponsor indicating a willingness and intent to

sign the agreement must be included. If approved, the ASA(CW) will

authorize the district to conduct a DPR addressing details of the

aquatic plant problem and the proposed plan of action.

 b. An Environmental Assessment and, where appropriate, an

Environmental Impact Statement must be completed for any proposed

control operations.
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 c. All herbicide applications are to be performed in

compliance with applicable Federal and state laws, including Federal

Insecticide, Fungicide, and Rodenticide Act of 1972, as amended, and

the Occupation Safety and Health Act of 1970. 

 d. Non-Federal program sponsors must agree to hold and save

the United States free from damages resulting from control operations.

20-3. Budget. In the annual budget process, the Aquatic Plant

Control Program is presented as part of the Corps Construction,

General appropriation request. There is a $12 million annual

limitation on Corps expenditures for the total program.
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CHAPTER 21

REGULATORY PROGRAM - PROTECTION OF THE PUBLIC INTEREST

IN THE WATERS OF THE UNITED STATES

21-1. Background.

 a. Regulatory Approach of the Corps of Engineers.

 (1) The U.S. Army Corps of Engineers has been involved in

regulating certain activities in the Nation's waters since 1890. 

Until 1968, the primary thrust of the Corps' regulatory program was to

protect navigation. As a result of new laws and judicial decisions,

the Corps' 1968 permit regulations required for the first time a full

public interest review involving a balancing of the favorable impacts

against the detrimental impacts as the primary basis of permit

decisions.

 (2) Most of the authority for administering the regulatory

program has been given to the 36 district commanders and 8 division 

commanders. There is no administrative appeal of a district or

division commander’s decision, except as provided for Federal

agencies under agreements pursuant to Section 404(q) of the Clean

Water Act (CWA).

 (3) The Corps seeks to avoid unnecessary regulatory controls. 

The general permit program is the primary method of reducing the

intensity of Federal regulation of minor activities.

 (4) Applicants are not necessarily due a favorable decision

but they are due a timely one. Reducing unnecessary paperwork and

delays is a continuing Corps goal.

 (5) State and Federal regulatory programs should complement

rather than duplicate one another. Use of general permits, joint

processing procedures, interagency review coordination and authority

transfers (where authorized by law) is encouraged to reduce

duplications.

 b. Types of Activities Regulated.

 (1) Dams and dikes in navigable waters of the United States;

 (2) Other structures or work including excavation, dredging,

and/or disposal activities, in navigable waters of the United States;

 (3) Activities that alter or modify the course, condition,

location, or physical capacity of a navigable water of the United

States;

 (4) Construction of fixed structures, artificial islands, and

other devices on the outer continental shelf;

 (5) Discharges of dredged or fill material into the waters of

the United States, including incidental discharges associated with

mechanized land clearing, channelization, dredging and other

excavation activities;

 (6) The transportation of dredged material for the purpose of

dumping it in ocean waters.

21-2. Authorities to Issue Permits.
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 a. Section 7 of the River and Harbor Act approved 8 August

1917 authorizes the Secretary of the Army to promulgate regulations

for the use, administration, and navigation of the navigable waters of

the United States as public necessity may require for the protection

of life and property or for operations of the United States in

providing channel improvements. Procedures followed for promulgation

of such regulations, although they do not involve issuance of permits,

are similar to those for the permit program. (33 CFR Part 324) 

 (1) Danger Zones. Regulations can be prescribed for the use

and navigation of any area likely to be endangered by Department of

Defense (DoD) operations. The authority to prescribe danger zone

regulations is exercised so as not to interfere with or restrict

unreasonably the commercial fishing industry. (33 CFR Part 324)

 (2) Restricted Areas. When required for the protection of

life and property at DoD installations, certain areas maybe set aside

and reserved, such as naval restricted areas. Reasonable regulations

may be prescribed, after public notice, restricting or prohibiting the

use of such areas by vessels. The Coast Guard is authorized to

establish restricted areas for safety but not restricted areas for DoD

facilities. (33 CFR Part 324)

 b. Section 9 of the River and Harbor Act approved March 3,

1899 (33 U.S.C. 401) prohibits the construction of any dam or dike

across any navigable water of the United States in the absence of

congressional consent and approval of the plans by the Chief of

Engineers and the Secretary of the Army. Where the navigable portions

of the waterbody lie wholly within the limits of a single state, the

structure may be built under authority of the legislature of that

state, if the location and plans or any modification thereof are

approved by the Chief of Engineers and by the Secretary of the Army. 

Section 9 also pertains to bridges and causeways but the authority of

the Secretary of the Army and Chief of Engineers with respect to

bridges and causeways was transferred to the Secretary of

Transportation under the Department of Transportation Act of October

15, 1966.

 c. Section 10 of the River and Harbor Act of 1899 prohibits

the unauthorized obstruction or alteration of any navigable water of

the United States. This section provides that the construction of any

structure in or over any navigable water of the United States, or the

accomplishment of any other work affecting the course, location,

condition, or physical capacity of such waters is unlawful unless the

work has been recommended by the Chief of Engineers and authorized by

the Secretary of the Army. The Secretary's approval authority has

since been delegated to the Chief of Engineers.

 

 d. Section 13 of the River and Harbor Act of 1899

(33 U.S.C. 407) provides that the Secretary of the Army, whenever the

Chief of Engineers determines that anchorage and navigation will not

be injured thereby, may permit the discharge of refuse into navigable

waters. In the absence of a permit, such discharge of refuse is

prohibited. While the prohibition of this section, known as the

Refuse Act, is still in effect, the permit authority of the Secretary

of the Army has been superseded by the permit authority provided the

Administrator, Environmental Protection Agency (EPA), and the states

under Sections 402 and 405 of the CWA, respectively.

 e. Section 404 of the CWA authorizes the Secretary of the

Army, acting through the Chief of Engineers, to issue permits for

discharges of dredged or fill materials into the waters of the United
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States, provided that such discharges are found to be in compliance

with the guidelines published by EPA to implement Section 404(b)(1) of

the CWA. Section 404(c) of the CWA authorizes the Administrator of

EPA to prohibit or restrict the use of a disposal site whenever he

determines that the discharge of such materials will have an

unacceptable adverse effect on municipal water supplies, shellfish

beds and fishery areas, wildlife, or recreational areas.

 f. Section 103 of the Marine Protection, Research and

Sanctuaries Act (MPRSA) of 1972, as amended, authorizes the Secretary

of the Army to issue permits for the transportation of dredged

material for ocean disposal when the dumping will not unreasonably

degrade or endanger human health, welfare, or amenities, or the marine

environment, ecological system, or economic potentialities. The

selection of disposal sites will be in accordance with criteria

developed by the Administrator of EPA in consultation with the

Secretary of the Army. The Administrator can prevent the issuance of

a permit if he finds that the dumping of the material will result in

an unacceptable adverse impact on municipal water supplies, shellfish

beds, wildlife, fisheries or recreational areas.

21-3. General Policies for Evaluating Permit Applications. The

following policies are applicable to the review of all applications

for Department of the Army permits.

 a. Public Interest Review.

 (1) The decision whether to issue a permit is based on an

evaluation of the probable impacts (including cumulative impacts) of

the proposed activity on the public interest. Evaluation of the

probable impacts which the proposed activity may have on the public

interest requires a careful weighing of all those factors which become

relevant in each specific case. The benefits which may reasonably

accrue from the proposal must be balanced against its reasonably

foreseeable detrimental impacts. The decision whether to authorize a

proposed activity, and if authorized, the conditions under which it

will be allowed to occur, are therefore determined by the outcome of

the general public interest balancing process. That decision should

reflect the national concern for both protection and utilization of

important resources. All factors which may be relevant to the

proposal must be considered, as must their cummulative effects. 

Considered are: conservation, economics, aesthetics, general

environmental concerns, wetlands, cultural values, fish and wildlife

values, flood hazards, flood plain values, land use, navigation, shore

erosion and accretion, recreation, water supply and conservation,

water quality, energy needs, safety, food and fiber production,

mineral needs and, in general, the needs and welfare of the people. 

No permit will be granted if issuance is found to be contrary to the

public interest.

 (2) The following general criteria will be considered in the

evaluation of every application:

 (a) The relative public and private need for the proposed

structure or work;

 (b) Where there are unresolved conflicts respecting resource

use, the practicability of using reasonable alternative locations and

methods to accomplish the objective of the proposed structure or work;
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 (c) The extent and permanence of the beneficial and/or

detrimental effects which the proposed structure or work may have on

public and private uses to which the area is suited.

 b. Effect on Wetlands.

 (1) Some wetlands are vital areas that constitute a productive

and valuable public resource. The unnecessary alteration or

destruction of those areas should be discouraged as contrary to the

public interest. 

 (2) Wetlands considered to perform functions important to the

public interest are listed in Chapter 20, paragraph 20-3.

 (3) Although a particular alteration of wetlands may

constitute a minor change, the cumulative effect of numerous such

piecemeal changes often results in a major impairment of the wetland

resources. Thus, the wetland site to which a particular application

relates will be evaluated with the recognition that it is part of a

complete and interrelated wetland area.

 (4) No permit will be granted which involves the alteration of

wetlands identified as important unless the district commander

concludes, based on the public interest review, that the benefits of

the proposed alteration outweigh the damage to the wetlands resource

and the proposed alteration is necessary to realize those benefits. 

In evaluating whether a particular alteration is necessary, the

district commander shall consider whether the proposed activity is

primarily dependent on being located in, or in close proximity to the

aquatic environment or whether practicable alternative sites are

available. The applicant must provide sufficient information on the

need to locate the proposed activity in the wetland and must provide

data to evaluate the availability of practicable alternative sites.

 (5) The congressional policy expressed in the Estuary

Protection Act, Public Law 90-454, and state regulatory laws or

programs for classification and protection of wetlands will also be

given great weight.

 c. Fish and Wildlife. In accordance with the Fish and

Wildlife Coordination Act, the Corps of Engineers will consult with

the Regional Director, U.S. Fish and Wildlife Service, the Regional

Director, National Marine Fisheries Service, and the head of the

agency responsible for fish and wildlife for the state in which the

work is to be performed, with a view to the conservation of wildlife

resources by prevention of their direct or indirect loss and damage

due to the activity proposed in a permit application. The district

commander will give full consideration to these views in evaluating

the application.

 d. Water Quality. Applications for permits for activities

which may affect water quality will be evaluated for compliance with

applicable effluent limitations, water quality standards, and best

management practices. Certification by the state under provisions of

Section 401 of the CWA will be considered conclusive with respect to

water quality considerations unless the Regional Administrator, EPA,

advises of other water quality aspects to be taken into consideration. 

Any permit issued may be conditioned to implement water quality

protection measures.

 e. Historic, Cultural, Scenic, and Recreational Values. Application for permits may involve areas which possess recognized
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historic, cultural, scenic, conservation, recreational, or similar

values. Full evaluation of the general public interest requires that

due consideration be given to the effect the proposed structure or

activity may have on values such as those associated with wild and

scenic rivers, registered historic places and natural landmarks,

National Rivers, National Wilderness Areas, National Seashores,

National Recreation Areas, National Lakeshores, National Parks,

National Monuments, estuarine and marine sanctuaries, archeological

resources, including Indian religious or cultural sites, and such

other areas as may be established under Federal or state law for

similar and related functions.

 f. Interference with Adjacent Properties or Water Resource

Projects. Authorization of work or structures by the Department of the

Army does not convey a property right, nor authorize any injury to

property or invasion of other rights.

 (1) Because a landowner has the general right to protect his

or her property from erosion, application to erect protective

structures will usually receive favorable consideration. However, if

the protective structure may cause damage to the property of others,

adversely affect public health and safety, adversely impact flood

plain or wetland values, or otherwise appear not to be in the public

interest, the district commander will so advise the applicant and

inform him or her of possible alternative methods of protecting his or

her property. Such advice will be given in terms of general guidance

only so as not to compete with private engineering firms nor require

undue use of Government resources.

 (2) A riparian landowner's general right of access to

navigable waters of the United States is subject to the similar rights

of access held by nearby riparian landowners and to the general

public's right of navigation on the water surface. In the case of

proposals which create undue interference with access to, or use of,

navigable waters, the authorization will generally be denied.

 (3) Where it is found that the work for which a permit is

desired is in navigable waters of the United States and may interfere

with an authorized Federal project, the applicant should be apprised

in writing of the fact and of the possibility that a Federal project

which may be constructed in the vicinity of the proposed work might

necessitate its removal or reconstruction.

 (4) Proposed activities which are in the area of a Federal

project which exists or is under construction will be evaluated to

insure that they are compatible with the purposes of the project.

 g. Activities Affecting Coastal Zones. Applications for

Department of the Army permits for activities affecting the coastal

zones of those states having a coastal zone management program

approved by the Secretary of Commerce will be evaluated with respect

to compliance with that program. No permit will be issued to a

non-Federal applicant until certification has been provided that the

proposed activity complies with the Coastal Zone Management Program,

and the appropriate state agency has concurred with the certification

or has waived its right to do so. However, a permit may be issued to

a non-Federal applicant if the Secretary of Commerce, on his or her

own initiative or upon appeal by the applicant, finds that the

proposed activity is consistent with the objectives of the Coastal

Zone Management Act or is otherwise necessary in the interest of

National security. Federal agency and Indian tribe applicants for

Department of the Army permits are responsible for complying with the
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Coastal Zone Management Act's directives for assuring that their

activities which directly affect the coastal zone are consistent, to

the maximum extent practicable, with approved state coastal zone

management programs.

 h. Activities in Marine Sanctuaries. Applications for permits

in a marine sanctuary established by the Secretary of Commerce will be

evaluated for impact on the marine sanctuary. No permit will be

issued until the applicant provides a certification from the Secretary

of Commerce that the proposed activity is consistent with the purposes

of the MPRSA of 1972, as amended, and implementing regulations.

 i. Other Federal, State, or Local Requirements.

 (1) Processing of an application for a Department of the Army

permit normally will proceed concurrently with the processing of other

required Federal, state, and/or local authorizations or

certifications. Final action on the Department of the Army permit

will normally not be delayed pending action by other Federal, state or

local agencies. Where a required Federal, state or local permit or

certification has been denied before final action on the Army permit,

a Corps permit will be denied without prejudice. The applicant can

reinstate processing of his or her application if subsequent approval

is received from the Federal, state or local agency originally denying

authorization.

 (2) Where officially adopted Federal, state, regional, local

or tribal land-use classifications, determinations or policies are

applicable to areas under consideration, they shall be presumed to

reflect local factors of the public interest and shall be considered

in addition to the other National factors of the public interest.

 (3) A proposed activity may result in conflicting comments

from several agencies within the same state. The district commander

will elicit from the governor an expression of his or her view

concerning the application or an expression as to which state agency

represents the official state position.

 (4) In the absence of overriding National interest factors, a

permit will generally be issued following receipt of a favorable state

determination provided the concerns, policies, goals and requirements

expressed in applicable statutes and 33 CFR 320-330 have been followed

and considered. Similarly, a permit will generally be issued for

Federal and Federally-authorized activities; another Federal agency's

determination to proceed is entitled to substantial consideration in

the Corps public interest review.

 (5) The district commanders are encouraged to develop joint

procedures with those states and other Federal agencies with ongoing

permit programs for activities also regulated by the Department of the

Army. In such cases, applications for Department of the Army permits

may be processed jointly with the state or with the other Federal

entities, but with conclusion and decision by the district commander

independent of the Federal or state agency determinations. 

Alternatively, the Corps may issue a general permit to eliminate

regulatory duplication.

 j. Safety of Impoundment Structures. To insure that all

impoundment structures are designed for safety, non-Federal applicants

may be required to demonstrate that the structure has been designed by

qualified persons or independently reviewed (and modified as the

review would indicate) by similarly qualified persons. (See 33 CFR
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325).

 k. Flood Plain Management. Although a particular alteration

to a flood plain may constitute a minor change, the cumulative impact

of such changes often results in a degradation of flood plain values

and functions and results in increased potential for harm to upstream

and downstream activities. In accordance with the requirements of

Executive Order (EO) 11988, district commanders, as part of their

public interest review, will consider alternatives that will avoid to

the extent possible the long and short term adverse impacts associated

with the occupancy and modification of flood plains.

 l. Water Supply and Conservation. Full consideration will be

given to water conservation as a factor in the public interest review,

including opportunities to reduce demand and improve efficiency in

order to minimize new supply requirements. This policy is subject to

Congressional policy stated in 101(g) of the CWA--that the authority

of states to allocate water quantities shall not be superseded,

abrogated or otherwise impaired.

 m. Energy Conservation and Development. District commanders

will give great weight to energy needs as a factor in the public

interest review and will give high priority to permit actions

involving energy projects.

 n. Navigation. Navigation in all navigable waters of the

United States continues to be a primary concern of the Federal

Government and will be given great weight in the public interest

balancing process.

21-4. Jurisdictional Limits:

 a. The River and Harbor Act of 1899. With respect to this Act

("Navigable Waters of the United States"):

 (1) Rivers and Lakes. Federal regulatory jurisdiction extends

laterally to the entire water surface and bed of a navigable

waterbody, which includes all the land and waters below the ordinary

high water mark. (33 CFR 329.11(a)) At some point along its length, a

navigable waterbody will change its character and lose its real or

potential physical ability to support commerce. That upper limit

point where the waterbody ceases to be a navigable water of the United

States is usually termed the "head of navigation". (33 CFR 329.11(b))

 (2) Ocean and Tidal Waters. The Corps regulatory jurisdiction

includes all ocean and coastal waters generally within a zone three

nautical miles seaward from the coast line. For bays and estuaries,

jurisdiction extends to the entire surface and bed of all waterbodies

subject to tidal action. This includes marshlands and similar areas

insofar as those areas are subject to inundation by the mean high

tidal waters. The base line (ordinary low tide line) from which the

territorial sea is measured is specified in the Convention on the

Territorial Sea and the Contiguous Zone. (15 UST 1606; TIAS 5639; 33

CFR 329.12)

 b. The Clean Water Act of 1977. With respect to this Act

("waters of the United States") jurisdiction is more extensive than

under the River and Harbor Act of 1899. (33 CFR 328)

 c. Marine Protection, Research and Sanctuaries Act of 1972. 
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This Act defines a regulatory jurisdiction with respect to "Ocean

Waters." (33 CFR 324.2)
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CHAPTER 22

SUPPORT FOR OTHERS

22-1. Support for Others (SFO). SFO is Corps-performed work funded

by non-Department of Defense (DoD) Federal agencies or by state,

local, tribal and foreign governments, international organizations,

and the private sector. (ER 1140-1-211 is applicable to this

program.)

22-2. Authorities. The authorities governing the SFO program are the

Economy in Government Act (31 U.S.C. 1535), 10 U.S.C. 3036(d) and the

Intergovernmental Cooperation Act (31 U.S.C. 6505). ER 1165-2-30

describes special authorities for performing work for state and local

governments in connection with authorized Civil Works projects.

22-3. Guidance on SFO Opportunities. The SFO program provides the

Corps with opportunities to serve the Nation and enhance its

capability to accomplish its assigned missions. Work accepted (see

paragraph 22-4, Approval Authorities) must be consistent with Corps

organizational purposes and be accomplished within manpower and

resource constraints. Work which is accepted should maintain or

enhance Corps ability to perform assigned missions and must not

adversely impact on their accomplishment. The Corps should provide

its SFO customers with a quality product, on time, and within cost

(i.e., same service as mission activity beneficiaries) and provide the

customer with a completed effort, using breadth of technical skills

and Corps review procedures, not simply Corps manpower. SFO

activities rely heavily on the design and construction talents of the

private sector when feasible, and recognize that the SFO customer

agency will retain responsibility for program planning and development

and budgetary justification.

22-4. Approval Authorities.

 a. MSC Authorities. Major Subordinate Command (MSC)

commanders and heads of separate field operating activities (FOAs) are

encouraged to accept reimbursable work when the following criteria are

met (MSC commanders may delegate their authority to district

commanders):

 (1) The work can be accomplished within the existing MSC

resource allocations until the next resourcing cycle occurs. If this

is not possible, the MSC (or FOA) should advise CERM-M of the

additional resources required to determine if a reallocation of

resources is possible.

 (2) The work is within the MSC's civil works boundary, unless

other customer boundaries have been established.

 (3) The work complies with the criteria checklist and

accompanying instructions of ER 1140-1-211.

 (4) ER 5-1-10, Corps-wide Areas of Responsibility, establishes

procedures to follow when accepting, asigning and/or brokering work

and procedures to follow when performing work outside the geographic

or functional area of responsibility.

22-5. Work for State and Local Governments. Before commands can

support state and local governments the requesting government must

certify that it cannot obtain the services reasonably and

expeditiously from private firms.
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 22-2

 a. Work Not Involving Federal Funding Assistance. The

technical services that may be provided (within the scope of the

activities defined in OMB Circular A-97 Revised and DoD Instruction

7730.53) include studies and planning activities, engineering and

design (including plans and specifications), construction management

assistance and training. Construction management assistance is

limited to: technical advice to improve state or local management

capability in contract preparation, negotiating and evaluation,

contract administration, quality assurance and supervision and

inspection. (District commanders must concur in the certification

required by paragraph 7.c. of Circular A-97 Revised.) Commands may

not acquire real estate nor be the construction contracting officer

for a state or local government under 31 U.S.C. 6505.

 b. Work Involving Federal Funding Assistance. 10 U.S.C.

3036(d) provides authority for the Corps to serve as the construction

contracting officer for a state or local government, provided the work

involves Federal funding assistance and provided the department or

agency providing the Federal funding does not object to the provision

of these services by the Corps. The requesting entity must certify

(in accordance with the procedures set forth in paragraph 7.c. in

Office of Management and Budget (OMB) Circular No. A-76) that the

services to be provided by the Corps cannot be procured reasonably and

expeditiously by it through ordinary business channels. The services

would normally be project-associated government management functions

which involve the exercise of discretion in applying government

authority and the use of value judgments in project management in the

role of contracting officer.

22-6. Work for Private Firms. 33 U.S.C. 2314(a) provides authority

for USACE to provide reimbursable support to U.S. private firms

competing for or awarded a contract for work overseas. USACE

laboratories are authorized to provide reimbursable services to U.S.

firms in the United States.

22-7. Work on Problems of National Significance. 33 U.S.C. 2323

provides authority for the Corps to provide support to other Federal

agencies or international organizations (after consultation with the

State Department) to address problems of national significance to the

United States.

22-8. Resourcing. All USACE costs must be provided by the customer

agency. OMB provides separate full time equivalent (FTE) resourcing

to USACE for the SFO program. HQUSACE allocates FTE through Civilian

Force Configuration and Management (FORCON).

22-9. Categories and Examples of Work. SFO work generally falls

under either environmental protection and restoration or, facilities

and infrastructure. Work varies from employing one or a few of the

Corps skills to using the whole range of the Corps planning,

engineering, real estate, contracting, construction management, and

legal skills. The majority of the work occurs in the United States

but work overseas is not uncommon. The following paragraphs summarize

some of the major characteristic work items.

 a. Environmental Protection and Restoration. The Corps

supports the Environmental Protection Agency’s (EPA's) Superfund

Program by managing remedial designs and remedial actions

(construction). The Corps provides a wide range of management

assistance to the Department of Energy's Environmental Restoration and

Waste Management Program and to the cleanup programs of about 20 other

Federal agencies including agencies within the Departments of
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 22-3

Agriculture, Justice, Transportation and Interior.

 b. Facilities and Infrastructure. The Corps supports the

facilities and infrastructure missions of over 60 other Federal

agencies. Overseas, this includes technical advice and infrastructure

of benefit to foreign nations for the Agency for International

Development, U.S. Information Agency, and State Department. In the

United States, this includes flood insurance and hurricane evacuation

studies and emergency response work for the Federal Emergency

Management Agency; public housing renovation grant oversight for the

Department of Housing and Urban Development; and design and

construction for the National Park Service, Immigration and

Naturalization Service, Bureau of Prisons, and Department of Energy.
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CHAPTER 23

CIVIL WORKS RESEARCH AND DEVELOPMENT

23-l. Purpose and Scope. The Civil Works (CW) Research and Development

(R&D) Program supports USACE's performance of CW missions and business

programs. The CW R&D Program addresses CW mission-related problems to

enhance the performance of all USACE elements. Typically programs focus

on the highest priority problems. All USACE organizations regularly

review their present and future CW missions and business programs to

identify managerial, operational, and engineering problems that could be

solved or improved through research and development. Research that is

project-specific will not be conducted using CW R&D Program funding

unless the research has a broader application.

23-2. Authorization. R&D is an integral and essential component in the

overall management of Civil Works programs and functions. Therefore,

special authorization is not required.

23-3. Program Development and Execution. The Director of Research and

Development (CERD) manages the CW R&D Program. Oversight is based on

management by mission-related objectives with appropriate delegation of

authority and responsibility to USACE Laboratories and Research

Performing Elements. (ER 70-l-5)

a. Program Development. Program development consists of three

steps: (1) strategic directions and research needs identification, (2)

program formulation, review and approval, and (3) program submission and

budget defense.

(1) Strategic Directions and Needs Identification. The overall

CW R&D strategic directions and priority issues are provided by the

Civil Works R&D Coordinating Committee, based on the Civil Works vision

and goals. The CW R&D Coordinating Committee is composed of the CW

Division Chiefs or their designees. The Committee meets as required to

review research directions and provide policy guidance. Based on the

guidance of the CW R&D Coordinating Committee, CERD, with input from the

HQ Program Monitors, Field Review Groups, and laboratory Program

Managers, identifies research areas, major new initiatives, overall

priorities, and funding requirements for review and approval by the CW

R&D Coordinating Committee. Once approved, a guidance memorandum from

CERD is sent, generally during the first quarter of the fiscal year, to

laboratory Program Managers establishing the research program areas,

preliminary funding, and other related guidance for the upcoming fiscal

year. Laboratory Program Managers, in close consultation with the

Program Monitors and Field Review Group, use this guidance memorandum to

develop detailed CW R&D programs, critical milestones, and to prepare

R&D program documentation.

(2) Program Review and Approval. Program Review Meetings,

chaired by CERD, are conducted jointly with the lead laboratory.

Participants include CERD representatives, Program Monitors, Laboratory

Program Managers, Field Review Groups, Principal Investigators, and

other HQUSACE and field staff where appropriate. The Program Review

Meetings review the status and direction of ongoing R&D and determine,

in detail, the recommended needs and priorities of R&D work units

commensurate with the strategic directions, priority requirements, and

funding allocation. In addition, the Program Reviews address the

23-l
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overall program strategy, technology transfer, product implementation,

and program justification. After Program Reviews, the Laboratory

Program Managers, in close consultation with the Program Monitors,

submit the annual prioritization of work units to CERD for HQUSACE

review and approval. This prioritization is based on the discussions

and Field review Group input during the Program review, as well as on

other appropriate CW needs and business program requirements.

(3) Program Submission and Budget Defense. CERD has the primary

responsibility for all subsequent program documentation requirements and

for its subsequent defense to ASA(CW), OMB, and the Congress.

b. Program Execution. CERD has the overall management

responsibility for the proper execution of the approved CW R&D program.

Laboratory Program Managers manage the execution of the research program

to ensure that program objectives, goals, and critical milestones are

met. The Laboratory Program Managers, in consultation with Program

Monitors and Field Review Group, are responsible for developing and

periodically updating a Strategic Plan that includes a vision statement

of overall R&D goals and objectives to support the established Civil

Works business programs.

23-4. Current Emphasis and Program Mix. The existing base R&D Program

is funded under the General Investigations Account. Additional funding

is also provided for problem-specific, and usually fixed year R&D under

the Operation and Maintenance (O&M), Construction General (CG), and

General Expense (GE) Accounts.

23-5. Organizational Responsibilities. ER 70-l-5 prescribes the

functional responsibilities and interrelationships of the field offices,

research laboratories and research performing elements, and HQUSACE.

a. HQUSACE Directorate of Research and Development (CERD). The

CERD is responsible to the Chief of Engineers for centralized management

of the Corps R&D activities at Corps research laboratories and research

performing elements. CERD, in close consultation with the CW Divisions,

annually recommends a CW R&D Program, including priorities and funding,

to the CW R&D Coordinating Committee. CERD defends the approved CW R&D

program before the Office of Management and Budget and the Congressional

Appropriations Committees.

b. Civil Works Directorate

(1) CW division chiefs appoint the program monitors to provide

strategic direction, assist in structuring the R&D program, recommend

work unit priorities and funding, review technical documents, assist

technology transfer, and communicate field needs and concerns.

(2) The CW R&D Coordinating Committee reviews the proposed

distribution of CW R&D funds within the current fiscal year and the

upcoming fiscal year to determine program balance, assure future

problems are properly evaluated, and determine proper emphasis. Upon

completion of the review, the Committee makes specific recommendations

to the Director/CW and the Director/CERD.

c. Field Commands. Each R&D Program includes a separate field

review group (FRG). The FRG acts as a consultant to the CW program

monitor, laboratory program manager and to CERD on the scope and conduct

23-2
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of the R&D and effective implementation of R&D end-products.

23-6. Transfer of Research Results.

a. Technology transfer is an integral part of the entire R&D

process. The laboratory program manager, in consultation with the

program monitor(s), the field review group, and principal investigator

develops a Technology Transfer Plan. This plan is a general description

of the direction and approach for technology transfer of a research

program. Each research program must provide for consistent transfer of

products and information to the USACE field offices primarily and to

other agencies including the private sector secondarily. The technology

transfer process will involve active participation of all members of the

USACE family to assure the products of the CW R&D Program are usable,

timely, and appropriate. Appropriate implementation mechanisms to

consider include PROSPECT or other long-term training courses,

recommended technical revisions to ECs, EMS and ETLs, draft technical

input to new or revised Engineering Guide Specifications, and

development of technical/procedural guidance necessary for effective

implementation of ERs and other CW policy documents.

b. The CW R&D Program shall consider transferring technology to

other DOD and Federal agencies, state and local governments, and private

enterprises as authorized by the Stevenson-Wydler Technology Innovation

Act of 1980, as amended. It is the joint responsibility of the

Directorate of Civil Works, program monitors, CERD, and the field review

group to advise and assist the program manager in technology transfer to

such organizations. Procedures for complying with the Act are given in

AR 70-57, which gives the Office of Research and Technology Applications

(ORTA) the responsibility for managing the domestic technology transfer

activities. The laboratory's ORTA will assist in identifying

technologies suitable for transfer through Cooperative Research and

Development Agreements (CRDA), Small Business Innovation Research

Program (SBIR), Patent License Agreements (PLA), and other methods for

technology transfer to the domestic civilian sector. The CW R&D program

manager may consider technology transfer to foreign governments. CERD

will decide each foreign technology transfer after coordination with

appropriate officials.

23-7. Internal and External Coordination and Information Exchange.

a. In the interest of eliminating unnecessary duplication of

research efforts, Corps laboratories are charged with the

responsibility for identifying R&D efforts by others that have potential

application to the CW R&D Program.

b. To assure coordination of the CW R&D Program with the

programs of other agencies, the Corps maintains close contacts with

other Federal water resource agencies, including Bureau of Reclamation,

Tennessee Valley Authority, and Bonneville Power Administration.

Professional contacts with Federal Highway Administration, National

Resources Conservation Service, National Marine Fisheries Service, Fish

and Wildlife Service, Environmental Protection Agency, the Bureau of

Mines, Federal Emergency Management Agency, National Science Foundation,

and National Institute of Standards and Technology are also maintained.

c. External coordination is accomplished through the Defense

Documentation Center, National Technical Information Service, and the

23-3
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Water Resources Scientific Information Service. In addition, Corps

technical people serve on committees which discuss each agency's

programs and capabilities, and participate in professional society

activities and committees.

d. Internal information exchange is accomplished by publishing

the documented research effort, ETLs, EMS and special research center

bulletins. The Corps maintains a Scientific and Technical Information

System that is a coordinated network of research and technical libraries

interfaced with other national public and private systems.

23-8. Exclusion of Non-R&D Activities from R&D Funding. Non-R&D

activities such as routine data collection, training, development of

manuals and standard computer programs and Scientific and Technical

Information (STINFO) Centers are not funded from "General Investigations

- Research and Development" fiscal category.

23-9. Research not Funded as R&D. Congress has specifically authorized

programs which include R&D. R&D is funded under these specific programs

(e.g., Aquatic Plant Program). When R&D is related to a specific

project and is not transferable, the effort is funded by the specific

project. All R&D efforts, regardless of source of funds, are integral

to the CW R&D Program.

23-4
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24-1

CHAPTER 24

ACTIVITIES RELATED TO PROGRAMS

ADMINISTERED BY OTHER FEDERAL AGENCIES

24-1. General. Originally, Federal functions with respect to water

resources development involved single-purpose projects by specific

agencies with clear-cut divisions of responsibility. Successive acts

of Congress have extended the functions, authorities, jurisdictions

and interests of Federal agencies in different phases of land and

water resources conservation and development. In view of frequent

incompatability among various uses, it is important that maximum

possible coordination be achieved. This is required by legislation

and various Administration directives. Consideration of work for

other agencies is an important factor in preparation of budgets and

capabilities. Authorities and procedures for assisting agencies in

accomplishing activities are discussed in Chapter 22 - Support for

Others. Following are brief summaries of the policies on other agency

activities that are related to Corps programs. See also Appendix D -

Interagency Agreements.

24-2. Environmental Review and Coordination. The Council on

Environmental Quality (CEQ) regulations (40 CFR 1500-1508)

implementing the provisions of the National Environmental Policy Act

(NEPA) of 1969 (Public Law 91-190) require the Federal agency having

primary responsibility for preparing an environmental impact statement

(EIS) to determine whether any other Federal agencies have

jurisdiction by law, a statutorily mandated consultive role, or

special expertise on environmental quality issues. "Jurisdiction by

law" is defined as authority to approve, deny, or finance all or part

of a proposal, and encompasses permits and licenses. "Special

expertise" is defined as statutory responsibility, agency mission or

related program experience. Appendix II of CEQ regulations lists

Federal agencies so defined. The Corps review of another agency's EIS

should be specific and may address either the adequacy of the EIS or

the merits of the alternatives, or both, where the Corps has

jurisdiction by law (Section 10, Section 404, etc.) or special

expertise (flood control, navigation, water supply, etc.). District

commanders are designated as responsible NEPA officials for providing

comments on other agencies EIS's except proposals requiring HQUSACE or

ASA(CW) review. (ER 200-2-2)

24-3. Watershed Protection. The Natural Resources Conservation

Service (NRCS), under authority of the Watershed Protection and Flood

Prevention Act of 1954 (Public Law 83-566, as amended), constructs

dams and implements other measures in upstream watersheds for a

variety of purposes including flood control. The Corps cooperates

fully with the NRCS in carrying out its program and strives to bring

about coordination between the Public Law 83-566 program and the

programs of the Corps. (EP 1165-2-2)

24-4. National Wild and Scenic Rivers System. The National Wild and

Scenic River System was established by the Wild and Scenic Rivers Act

(Public Law 90-542, as amended) to protect the environmental values of

free-flowing streams from degradation by impacting activities

including water resources projects. The system is administered

jointly by the Forest Service, Department of Agriculture, and the

National Park Service (NPS), Department of the Interior. Corps

activities on the streams included in the system are subject to review

by whichever of these agencies is responsible for the specific stream. 

Discharges into streams, impoundments, diversions, channel

alterations, and other measures can alter the stream discharge,
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24-2

velocity, and channel dimensions. These hydraulic changes may cause

modifications to the free-flowing character of the stream, resulting

in loss or diminution of its environmental values. The Wild and

Scenic River Act requires consideration of the impacts and

consultation with the responsible agency prior to implementation of a

project.

24-5. Land and Water Conservation Fund. The NPS provides assistance

to the states and territories in preparing and maintaining Statewide

Comprehensive Outdoor Recreation Plans (SCORPs) under the Land and

Water Conservation Act of 1964 (Public Law 88-578, as amended). 

Planning for recreation development at Corps projects is coordinated

with the appropriate states so that the plans are consistent with

public needs as identified in the SCORPs. The Corps must coordinate

with the Secretary of Interior to insure that no property acquired or

developed with assistance from this Act will be converted to other

than outdoor recreation use. (ER 1165-2-400)

24-6. Community Development Program. Title I of the Housing and

Community Development Act of 1974 (Public Law 93-383) establishes a

program of community development block grants. This program is

administered by the Department of Housing and Urban Development. The

primary objective of the Community Development Program is the

development of viable communities, including decent housing and

suitable living environment and expanded economic opportunities,

principally for persons of low and moderate income. Under the

program, cities may undertake a wide range of activities directed

toward neighborhood revitalization, economic development, and

provision of improved community facilities and services. Some of the

specific activities that can be carried out with block grant funds

include acquisition of real property; relocation, demolition and

rehabilitation of residential and nonresidential structures; and

provision of public facilities and improvements such as neighborhood

centers, streets, water and sewer facilities and flood and drainage

facilities. In addition, block grant funds are available to pay for

certain public services which are appropriate or necessary to support

other block grant activities. The Corps participates in community

development activities in various ways. Participation includes acting

under existing authorities for flood damage reduction, beach erosion

control, or navigation improvement. The Corps provides technical

information and advice or, where appropriate, serves as an engineering

consultant in areas of special Corps expertise.

24-7. Small Reclamation Projects. The Small Reclamation Projects Act

of 1956 (Public Law 984, 84th Congress, as amended), established a

program under which non-Federal organizations in the 17 contiguous

western states and Hawaii can obtain loans for small reclamation

projects. The Corps, in cooperation with the Bureau of Reclamation,

assists in analysis and evaluation of the Federal interest when loan

applications propose projects which involve flood control effects. 

(ER 1165-2-111)

24-8. National Recreation Areas. National Recreation Areas (NRA) at

Corps reservoirs will normally be developed and managed by the Corps

of Engineers in accordance with the project's authorizing legislation. 

A Corps project may be so located, or may be of such size and nature,

that it would make a desirable addition to a major resource area being

administered by another Federal agency. In such cases, the Corps may

enter into an agreement under which the area will be managed as an NRA

by that agency. (ER 1165-2-400)
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24-9. Forest Service Lands. The policy of developing recreation as

an integal part of a coordinated overall management plan includes

reservoir projects of the Corps located within or partly within the

National Forest System. District commanders and Forest Supervisors

cooperate at all project stages in accordance with a Memorandum of

Agreement, dated 13 August 1964, by the Secretaries of the Army and

Agriculture. The objective is to meet the public needs of both the

national forest and the water resource projects in a cost efficient

manner. (EP 1165-2-2)

24-10. National Trails System. Public Law 90-543 prescribes

procedures for setting up national recreation and scenic trails. 

National recreation trails located near urban areas may be established

by the Secretary of the Interior or by the Secretary of Agriculture

where lands administered by either are involved. National scenic

trails, and extended trails so located as to provide for maximum

outdoor recreation potential, are established by Acts of Congress. 

The Corps recognizes that the aesthetic attractiveness of scenic

corridors available on project lands can be enhanced by incorporation

of trails or trail systems. Accordingly, wherever warranted by the

current or potential public use of Corps water resource projects,

consideration is given in planning to the incorporation of trails. In

addition, as part of coordination with NPS, the Corps must identify,

evaluate, and coordinate any impacts to the National Trails System as

a result of proposed or ongoing activities. 

24-11. Endangered and Threatened Species. The Endangered Species Act

of 1973 (Public Law 93-205), as amended (Public Laws 95-632, 96-159

and 97-304), states the policy of Congress is that all Federal

departments and agencies shall seek to conserve endangered species and

threatened species and shall utilize their authorities in furtherance

of the purposes of this Act. The purposes of this Act are to provide

a means whereby the ecosystems upon which endangered species and

threatened species depend may be conserved and to provide a program

for the conservation of such endangered species and threatened

species. Section 7 states that all Federal departments and agencies

shall, in consultation with and with the assistance of the Secretary

of the Interior/Commerce, insure that any actions authorized, funded,

or carried out by them do not jeopardize the continued existence of

any endangered species or threatened species or result in the

destruction or adverse modification of habitat...determined by the

Secretary(Interior/Commerce)...to be critical unless an exception has

been granted by the Endangered Species Committee. Additional

guidelines for protection of marine mammals are established in Public

Law 92-522, as amended. Consultation procedures are administered by

the Fish and Wildlife Service (FWS), Department of the Interior, and

the National Marine Fisheries Service (NMFS), Department of Commerce. 

Federal agencies must request the FWS or NMFS, as appropriate, to

furnish information as to whether any listed species or designated

critical habitat are in the proposed project area. If the FWS/NMFS

provides listed or proposed species or designated critical habitat,

the agency must prepare a biological assessment to determine if the

proposed project may affect the species or habitat. The biological

assessment must be completed within 180 days. No construction

contract will be awarded before completion of the assessment. Based

on the biological assessment results and other information the agency

shall initiate formal consultation with the FWS/NMFS if listed

endangered or threatened species or designated critical habitat may be

affected. Consultation shall be concluded within a 90-day period (or

other period mutually acceptable to the agency and FWS/NMFS). During

consultation, the agency shall not make any irreversible or

irretrievable commitment of resources that would have the effect of
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foreclosing the formulation or implementation of any reasonable and

prudent alternative measures. Promptly after conclusion of

consultation, the FWS/NMFS shall provide the agency with a biological

opinion on how the agency's proposed action will affect the species or

critical habitat and, if appropriate, shall suggest reasonable and

prudent alternatives. Federal agencies are required to consider

reasonable and prudent measures to protect and conserve the species

and critical habitat.

24-12. Federal Energy Regulatory Commission (FERC) Licenses. Under

the Federal Power Act (Public Law 280, 66th Congress), non-Federal

entities are required to obtain from the Federal Power Commission (now

FERC) a license for construction and operation of hydroelectric power

developments affecting navigable waters, lands of the United States,

or interstate commerce. The Act requires the proposed power project

to be optimally related to comprehensive development plans. All

applications for license are referred to the Corps and other agencies

for views and recommendations concerning licensing and provisions to

be included in the license or renewal if issued. Applications for

FERC permits which give the applicant priority of interest in a power

site pending completion of studies, but do not authorize construction,

are likewise referred to the Corps. The Act also specifies that no

license affecting navigation shall be issued until the plans are

approved by the Chief of Engineers and the Secretary of the Army. (ER

1110-2-1454)

 a. License Renewal. The United States has the right, upon

the expiration of any FERC license, to take over and thereafter to

operate the project under certain circumstances, if such action is in

the public interest. The Corps is required to comment on license

renewal applications. Although a number of licenses have recently

expired, the Corps has, to date, not recommended takeover in any case

to the FERC.

 b. Distinction between Corps of Engineers and FERC

Jurisdiction with Respect to Non-Federal Hydroelectric Project.

 (1) The following procedures are currently being followed in

connection with Department of Army permit responsibilities involving

pre-1920 legislation:

 (a) In regard to FERC licensing of projects, Corps

responsibilities under Section 10 of the River and Harbor Act of 1899,

for power related activities, may normally be met through the FERC

licensing procedure including insertion in the license of terms and

conditions in the interest of navigation. Section 4(e) of the Federal

Power Act provides for approval of project plans by the Chief of

Engineers and Secretary of the Army from the standpoint of interests

of navigation. On 11 March 1975, the Secretary of the Army delegated

the subject authority to the Chief of Engineers. On 5 September 1980,

the Chief of Engineers delegated Section 4(e) approval to the

respective division. The consideration for Corps approval under

Section 4(e) will be limited to effects of a project on navigation.

 (b) Non-Federal hydroelectric power proposals at Corps

projects must satisfy public interest requirements in water resources

development as required by the Federal Power Act and must meet the

following Corps of Engineers general requirements:

 -- Hydroelectric power development must be compatible with

authorized purposes of the Federal project. Verification of

compatibility may require physical and/or mathematical modeling, costs
EP 1165-2-1

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24-5

of which should be borne by the applicant.

 -- Full hydroelectric power potential of the site must be

considered in planning, design and construction of a power plant. 

 -- Design, construction and operation of all power facilities

that will be an integral part of the dam or that would affect the

structural integrity of the Federal dam, including construction

procedures and sequence, must be approved by the Corps. 

 -- In the interest of multiple-purpose water management, the

Corps requires a signed memorandum of understanding (MOU) between the

prospective licensee and the Corps specifying the operational

procedures and power rule curves consistent with overall project

management objectives. The MOU must be signed prior to start of power

operation.

 -- Prospective licensee must reimburse the Federal Government

for the use of lands and facilities and for an appropriate part of the

costs of the existing Federal project by which the head created at the

Federal project makes the installation of power feasible. Assessment

of these costs, development of charges therefrom, and collection of

charges will be accomplished by FERC.

 -- Reimbursement to the Federal Government will also be

required for any additional construction costs incurred by the Federal

Government as a result of installation of the power facilities. Such

costs will be determined and collected by the Corps.

 -- Prospective licensee must furnish electric power free of

cost to the United States for operation and maintenance of the project

navigation facilities. The power will be furnished at voltage and

frequency required by such facilities, whether such facilities are

constructed by the licensee or by the United States.

 -- The prospective licensee shall furnish, operate and

maintain adequate lights, signals and protective warning devices in

conjunction with the pondage operation to provide for safe navigation

and for the safety of persons using the public recreational facilities

at the Federal project.

 (c) Applications to Corps division or district commanders for

approval of repairs, maintenance or modification of non-Federal

hydroelectric projects authorized under River and Harbor Acts as well

as special Acts of Congress prior to 1920, or requests for advice with

respect thereto, should be referred to FERC for consideration in

accordance with the provisions of the Federal Power Act. The

applicant should be advised that the matter is being referred to the

FERC for consideration and that, if a FERC license is required, Corps

recommendations will be furnished to the FERC.

 (2) Responsibilities under Section 404 of the Clean Water Act

(CWA) of 1977 pertinent to discharge of dredged or fill material into

the navigable waters at specified disposal sites will be met only

through the Department of Army permit procedures. In regard to FERC

cases involving Section 404, the Corps report to the FERC will specify

the need for a Department of Army permit (Section 404) if, on the

basis of the division and district commanders' findings, such permit

is deemed necessary. A Department of the Army permit will be required

for any portion of a proposed project which involves the discharge of

dredged or fill material into the waters of the United States. This

includes the placement of fill necessary for construction of a
EP 1165-2-1

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24-6

project's dam and appurtenant structures.

 (3) When applicable, FERC will be advised that the

requirement for Department of the Army permit pursuant to Section 103

of the Marine Protection, Research and Sanctuaries Act of 1972 for the

transport of dredged material from the project site for the purpose of

dumping it into the ocean waters will be met only through the

Department of the Army permit program.

 (4) In connection with FERC licensed projects, there may be

proposed nonpower water oriented activities, such as recreational

development, which are associated with the overall project but may not

be a part of the hydroelectric power facilities at the project. If

such cases involve navigable waters, they should be reviewed from the

standpoint of need for a Section 10 permit. Such Section 10 permit

actions would involve consideration of the overall public interest

including water quality, fish and wildlife, recreation, general

environmental concerns and the needs and welfare of the people. Corps

responsibilities for permit requirements under Section 10 of the River

and Harbor Act of 1899 for nonpower activities affecting navigable

waters at licensed FERC projects will be met only through the Army

permit procedures. The Corps report by the division commanders to

FERC will specify the need for such permit as deemed necessary.

24-13. Prime and Unique Farmland. 

 a. Farmland Protection Policy Act. This Act (Subtitle I of

Title XV of the Agriculture and Food Act of 1981) is implemented under

Department of Agriculture final rule effective 6 August 1984 (7 CFR

658). The final rule requires that Corps FOAs contact the NRCS for

identification of prime or unique farmland which might be impacted by

proposed Corps actions. Prior to taking any action that would result

in conversion of designated prime or unique farmland to

nonagricultural uses, the Corps must examine the potential impacts of

the proposed action and, if there are adverse effects on farmland

preservation, consider alternatives to lessen the adverse effects. It

is within the Corps discretion to proceed with a project that would

result in conversion of farmland to nonagricultural uses once the

required examination has been completed. The final rule also requires

the Corps to ensure that its programs, to the extent practicable, are

compatible with state, local and private programs for the protection

of farmlands and encourages the Corps and other Federal agencies to

make the analysis of farm conversion impacts an integral part of their

review under NEPA.

 b. CEQ 11 August 1980 Memorandum. The Corps has considered

the effects of its proposed actions on agricultural lands, through the

environmental assessment process, since issuance of a 30 August 1976

CEQ memorandum. The 11 August 1980 memorandum superceded the earlier

one and reinforced the prior requirement that Federal agencies analyze

the effects of their proposed actions on prime and unique farmland as

an integral part of their environmental assessment process under NEPA. 

It is the Corps position that compliance with the evaluation

requirements of the Farmland Protection Policy Act (final rule) also

will satisfy the assessment requirements set forth in the CEQ

memorandum. Preliminary reviews and assessments will be summarized in

the draft NEPA document, and the results of the completed evaluations

in the final document. 

24-14. Highly Erodible Lands and Wetlands Conservation. The Food

Security Act of 1985 (Public Law 99-198) contains provisions designed

to discourage the conversion of wetlands into non-wetland areas
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(these, collectively, are commonly referred to as "Swampbuster"

provisions). These provisions, implemented under Department of

Agriculture (USDA) final rule effective 17 September 1987 (7 CFR 12),

are administered by the NRCS. The final rule sets forth the terms and

conditions under which a person, who has produced an agricultural

commodity on newly converted wetlands, shall be declared ineligible

for certain benefits provided by USDA. Such benefits include:

commodity price support or production adjustment payments; farm

storage facility loans; disaster payments; payments for storage of

grain owned or controlled by the Commodity Credit Corporation; Federal

crop insurance; and FmHA loans. Farmers who plant commodity crops,

after 23 December 1985, on lands that were converted from a wetland to

a non-wetland condition by a Corps project will trigger "Swampbuster"

considerations which may lead to the cited USDA program

ineligibilities. This could result in lessening of sponsor support

for a project and a reduction in estimated benefits that might

otherwise have been attributed to the project proposal. It could also

change the with and without project assumptions used to establish

environmental impacts and associated mitigation needs; this is

particularly significant where habitat preservation credit is a

component of mitigation plans. The Corps coordinates its flood

control plans involving agricultural lands with the NRCS, and alerts

project sponsors and affected farmers of their responsibilities for

meeting requirements set forth in the "Swampbuster" provisions of the

Food Security Act of 1985. The Act provides for certain "third party"

exemptions which may be available to landowners who receive ancillary

drainage benefits from Corps projects. It is the responsibility of

the individual landowner, not the Corps, to request such an exemption.

24-15. Superfund Program. The Environmental Protection Agency (EPA)

is assigned primary responsibility under Executive Order 12580 for

implementing the Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (Public Law 96-510), commonly referred to as

"Superfund." An interagency agreement with EPA executed 3 December

1984 (replacing an earlier agreement of 3 February 1982) provides for

the Corps to assist EPA in certain ways. EPA has a three-tiered

process that will determine the extent of Corps assistance. Under the

process, EPA will: (1) determine whether a private entity is liable

for clean-up and will approach that entity to perform the work of

clean-up; if that does not develop, then (2) determine whether the

state can/will do the clean-up; if not (3) determine that Federal

clean-up is appropriate and request the Corps to undertake the work. 

The Corps will serve as contract manager as follows:

 a. Review design

 b. Monitor construction

 c. Provide technical assistance to EPA

 d. Review state plans at EPA request

The actual design and construction will be performed by contract with

private firms under supervision by the Corps.

24-16. Coastal Zone Management Act (CZMA) of 1972, as amended (Public

Laws 92-583 and 101-508). This Act declared a national interest in

the effective management, beneficial use, protection and development

of the coastal zone. It indicates that the primary responsibility for

planning and regulation of land and water uses rests with the state

and local governments. The Act states that Congress finds that the

key to more effective protection and use of the land and water
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resources of the coastal zone is to encourage the states to exercise

their full authority over lands and waters in the coastal zone. The

Secretary of Commerce is authorized to award Federal grants to assist

the states in developing and administering land and water use

management programs for the coastal zone giving full consideration to

ecological, cultural, historic and esthetic values as well as to the

need for economic development. Federal agencies proposing activities

or development projects including civil works activities, whether

within or outside of the coastal zone, that are reasonably likely to

affect any land or water use or natural resource of the coastal zone,

must assure that those activities or projects are consistent, to the

maximum extent practicable, with the approved state programs. For

non-Federal projects, a required Corps permit listed in the state's

coastal management program cannot be issued until the state has

concurred with the permit applicant's certification of compliance with

the plan or until the state has waived its right to do so.

24-17. Coastal Barrier Resources Act of 1982 (Public Law 92-348). 

This act established the Coastal Barrier Resources System, consisting

of 182 units of undeveloped barrier islands on the Atlantic and Gulf

coasts, and prohibits Federal expenditures for construction, purchase,

or stabilization projects within those units. It is administered by

the Secretary of the Interior through the FWS. The intent is to

protect fish, wildlife, and migratory habitats; to prevent loss of

human life; and to preclude Federal expenditures that induce

development on coastal barrier islands and adjacent nearshore areas. 

Except for maintenance of existing projects, e.g., dredging, no new

Federal expenditures or financial assistance is allowed for areas

within the system.

24-18. Abandoned Shipwreck Act of 1987 (Public Law 100-298). This

act creates Federal authority to transfer ownership of abandoned

shipwrecks to the state on whose submerged lands the wreck is located. 

The Department of the Interior administers the Act through regulations

issued by the NPS. Exceptions are those shipwrecks on public lands of

the United States, which will be kept in Federal ownership, and those

on Indian lands, which will be the property of the Indian tribe owning

the land rights. The Act provides Federal protection to any shipwreck

which meets the criteria for elegibility for inclusion in the National

Register for Historic Places. Therefore, disposal of dredged or other

material on or in the near vicinity of such wrecks is prohibited.

24-19. Support to the National Flood Insurance Program (NFIP). Under

interagency agreements, the Corps provides technical assistance to

FEMA on a reimbursable basis in support of the NFIP. Two components

of that program, the accomplishment of Flood Insurance Studies (FISs)

and Limited Map Maintenance Program (LMMP) efforts, require detailed

hydrologic and hydraulic analyses to determine areas of flood hazards

and the degree of flood risk. Study requirements for these components

are outlined in the Corps "Instructions for Flood Insurance Studies,"

FEMA's "Guidelines and Specifications for Study Contractors" and

supplementary directives by FEMA. Another component of the NFIP, the

Community Assistance Program (CAP), requires tasks which assist local

officials in the administration of the NFIP for their community. 

Applicable tasks include surveying of additional elevation reference

marks, performing community assessment visits, holding floodproofing

workshops, etc. Guidance for this component is outlined in FEMA's

"Community Assistance Program Manual" and subsequent directives by

FEMA.

24-20. Department of Energy (DOE) Real Estate Assistance. Pursuant

to a memorandum of agreement between DOE and Army, effective 26 August
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1987, Corps offices assist DOE in the acquisition and management of

real estate. According to this agreement, Corps offices acquire lands

and interests on behalf of DOE in accordance with existing Corps

procedures and in accordance with applicable laws, including the

Uniform Relocation Assistance and Real Property Acquisition Policies

Act of 1970 (Public Law 91-646). (ER 405-1-12)

24-21. Department of Commerce (DOC) Real Estate Assistance. Pursuant

to a memorandum of agreement between the DOC and the Corps, effective

6 September 1985, Corps offices assist the DOC in the acquisition of

real estate for National Weather Service (NWS) installations. (ER

405-1-12)

24-22. National Estuary Program. This program was established under

Section 317 of the Water Quality Act of 1987 (Public Law 100-4). 

Compliance requires coordination with the EPA and the designated state

agency.
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APPENDIX A

REFERENCES

PUBLIC LAWS (P.L.) 

Chapter (Ch.) 229, 5 July 1884, River and Harbor Act of 1884.

Ch. 860, 11 August 1888, River and Harbor Act of 1888.

Ch. 907, 19 September 1890, River and Harbor Act of 1890.

Ch. 299, 18 August 1894, River and Harbor Act of 1894.

Ch. 425, 3 March 1899, River and Harbor Act of 1899.

P.L. 60-317, (Ch. 264), 3 March 1909, River and Harbor Act of 1909.

P.L. 63-291, (Ch. 142), 4 March 1915, River and Harbor Act of 1915.

P.L. 65-37, (Ch. 49), 8 August 1917, River and Harbor Act of 1917.

P.L. 66-152, (Ch. 91), 28 February 1920, Transportation Act of 1920.

P.L. 66-261, (Ch. 250), 5 June 1920, Merchant Marine Act of 1920.

P.L. 66-263, (Ch. 252), 5 June 1920, River and Harbor Appropriation

Act of 1920.

P.L. 66-280, (Ch. 285), 10 June 1920, The Federal Water Power Act.

P.L. 71-520, (Ch. 847), 3 July 1930, River and Harbor Act of 1930.

P.L. 74-738, (Ch. 688), 22 June 1936, Flood Control Act of 1936.

P.L. 75-761, (Ch. 795), 28 June 1938, Flood Control Act of 1938.

P.L. 76-647, (Ch. 409), 21 June 1940, Bridge Alterations (TrumanHobbs) Act.

P.L. 77-228, (Ch. 377), 18 August 1941, Flood Control Act of 1941.

P.L. 78-534, (Ch. 665), 22 December 1944, Flood Control Act of 1944.

P.L. 79-14, (Ch. 19), 2 March 1945, River and Harbor Act of 1945.

P.L. 79-526, (Ch. 596), 24 July 1946, Flood Control Act of 1946.

P.L. 79-727, (Ch. 960), 13 August 1946, Shores of Publicly Owned

Property.

P.L. 80-858, (Ch. 771), 30 June 1948, Flood Control Act of 1948.

P.L. 81-152, (Ch. 288), 30 June 1949, Federal Property and

Administrative Services Act of 1949.
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P.L. 83-780, (Ch. 1264), 3 September 1954, Flood Control Act of 1954.

P.L. 84-99, (Ch. 194), 28 June 1955, Emergency Flood Control Work.

P.L. 84-826, (Ch. 768), 28 July 1956, Shores - Construction Against

Erosion.

P.L. 85-480, 2 July 1958, Publications.

P.L. 85-500, 3 July 1958, River and Harbor and Flood Control Act of

1958.

P.L. 85-624, 12 August 1958, Fish and Wildlife Coordination Act.

P.L. 86-523, 27 June 1960, The Reservoir Salvage Act of 1960.

P.L. 86-645, 14 July 1960, River and Harbor and Flood Control Act of

1960.

P.L. 86-717, 6 September 1960, Forest Conservation.

P.L. 87-874, 23 October 1962, River and Harbor and Flood Control Act

of 1962.

P.L. 88-172, 7 November 1963, Coastal Engineering Research.

P.L. 88-206, 17 December 1963, Clean Air Act of 1963.

P.L. 88-352, 2 July 1964, Civil Rights Act of 1964.

P.L. 88-578, 3 September 1964, Land and Water Conservation Fund Act of

1964.

P.L. 89-72, 9 July 1965, The Federal Water Project Recreation Act of

1965.

P.L. 89-80, 22 July 1965, Water Resources Planning Act.

P.L. 89-298, 27 October 1965, River and Harbor and Flood Control Act

of 1965.

P.L. 89-665, 15 October 1966, National Historic Preservation Act of

1966.

P.L. 90-448, 1 August 1968, Flood Insurance.

P.L. 90-454, 3 August 1968, Estuary Protection Act.

P.L. 90-483, 13 August 1968, River and Harbor and Flood Control Act of

1968.

P.L. 90-542, 2 October 1968, Wild and Scenic Rivers Act.

P.L. 90-577, 16 October 1968, Intergovernmental Cooperation Act of

1968.
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P.L. 91-190, 1 January 1970, National Environmental Policy Act of

1969.

P.L. 91-224, 3 April 1970, Water Quality Improvement Act of 1970 and

Environment Quality Improvement Act of 1970.

P.L. 91-604, 31 December 1970, Clean Air Act Amendments.

P.L. 91-611, 31 December 1970, River and Harbor and Flood Control Act

of 1970.

P.L. 91-646, 2 January 1971, Uniform Relocations Assistance and Real

Property Acquisition Policies Act of 1970.

P.L. 92-340, 10 July 1972, Ports and Waterways Act of 1972.

P.L. 92-500, 18 October 1972, The Federal Water Pollution Control Act

Amendments of 1972.

P.L. 92-532, 23 October 1972, Marine Protection, Research and

Sanctuaries Act.

P.L. 92-583, 27 October 1972, Coastal Zone Management Act of 1972.

P.L. 93-205, 28 December 1973, Conservation, Protection, and

Propagation of Endangered Species.

P.L. 93-234, 31 December 1973, Flood Disaster Protection Act of 1973.

P.L. 93-251, 7 March 1974, Water Resources Development Act of 1974.

P.L. 93-288, 22 May 1974, Disaster Relief Act Amendments of 1974.

P.L. 93-291, 24 May 1974, Preservation of Historical and Archeological

Data.

P.L. 93-344, 12 July 1974, Congressional Budget and Impoundment

Control Act of 1974.

P.L. 93-502, 21 November 1974, Freedom of Information Act Amendments.

P.L. 94-587, 22 October 1976, Water Resources Development Act of 1976.

P.L. 95-217, 27 October 1977, Clean Water Act of 1977.

P.L. 95-269, 26 April 1978, Rivers and Harbors - Improvements.

P.L. 95-341, 11 August 1978, American Indian Religious Freedom Act.

P.L. 95-367, 17 September 1978, National Climate Program Act.

P.L. 95-502, 21 October 1978, Internal Revenue Code of 1954,

Amendment.

P.L. 95-563, 1 November 1978, Contracts Disputes Act of 1978.
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P.L. 95-632, 10 November 1978, Endangered Species Act Amendments of

1978.

P.L. 96-95, 31 October 1979, Archeological Resources Protection Act of

1979.

P.L. 96-480, 21 October 1980, Stevenson-Wydler Technology Innovation

Act of 1980.

P.L. 96-510, 11 December 1980, Comprehensive Environmental Response,

Conservation and Liability Act (CERCLA) of 1980.

P.L. 96-511, 11 December 1980, Paperwork Reduction Act of 1980.

P.L. 96-515, 12 December 1980, National Historic Preservation Act

Amendments of 1980.

P.L. 96-597, 24 December 1980, Appropriations Act, U.S. Insular Areas.

P.L. 97-258, 13 September 1982, The Economy Act.

P.L. 99-198, 23 December 1985, Food Security Act of 1985.

P.L. 99-499, 17 October 1986, The Emergency Planning and Community

Right to Know Act of 1986.

P.L. 99-502, 20 October 1986, Federal Technology Transfer Act of 1986.

P.L. 99-662, 17 November 1986, Water Resources Development Act of

1986.

P.L. 100-17, 2 April 1987, Uniform Relocation Act Amendments of 1987

(Title IV).

P.L. 100-676, 17 November 1988, Water Resources Development Act of

1988.

P.L. 101-580, 5 November 1990, Omnibus Budget Reconciliation Act of

1990.

P.L. 101-601, 16 November 1990, Native American Grave and Repatriation

Act.

P.L. 101-640, 29 November 1990, Water Resources Development Act of

1990.

P.L. 102-580, 31 October 1992, Water Resources Development Act of

1992.

P.L. 103-141, 16 November 1993, Religious Freedom Restoration Act of

1993.

P.L. 104-303, 12 October 1996, Water Resources Development Act of

1996.
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EXECUTIVE ORDERS (E.O.)

E.O. 11541, 1 July 1970, Office of Management and Budget.

E.O. 11644, 8 February 1972, Use of Off-Road Vehicles on Public Lands

(as amended by E.O. 11989, 24 May 1977).

E.O. 11988, 24 May 1977, Floodplain Management.

E.O. 11990, 24 May 1977, Protection of Wetlands.

E.O. 12088, 13 October 1978, Federal Compliance with Pollution Control

Standards.

E.O. 12319, 9 September 1981, River Basin Commissions.

E.O. 12322, 17 September 1981, Water Resources Projects.

E.O. 12580, 23 January 1987, Superfund Implementation (as amended by

E.O. 13016, 28 August 1996).

E.O. 12615, 19 November 1987, Performance of Commercial Activities.

E.O. 12856, 3 August 1993, Federal Compliance with Right-to-Know Laws

and Pollution Prevention Requirements.

E.O. 12898, 11 February 1994, Federal Actions to Address Environmental

Justice in Minority Populations and Low-Income Populations.

E.O. 13007, 24 May 1996, Indian Sacred Sites.

DEPARTMENT OF DEFENSE (DOD) DIRECTIVES/INSTRUCTIONS

DOD Directive 5500.11, Nondiscrimination in Federally Assisted

Programs.

DOD Instruction 7730.53, Specialized or Technical Services Provided to

State or Local Government.

ARMY REGULATIONS (AR)

AR 5-4 (OCE Supplement 1), Department of the Army Productivity

Improvement Program. 

AR 15-1 (HQUSACE Supplement 1), Committee Management.

AR 27-40, Litigation.

AR 37-60, Pricing for Materiel and Services.

AR 70-57, Military - Civilian Technology Transfer.

AR 190-29, Misdemeanors & Uniform Violation Notices Referred to U.S.

Magistrates or District Courts.
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A-6

AR 500-60, Disaster Relief.

AR 600-7, Nondiscrimination on the Basis of Handicap in Programs and

Activities Assisted or Conducted by the Department of the Army.

ENGINEER REGULATIONS (ER)

ER 5-1-3, Commercial Activities Program.

ER 5-1-11, Program and Project Management.

ER 10-1-1, Mission and Command Organization of the Chief of Engineers.

ER 10-1-2, U.S. Army Corps of Engineers Division and District Offices

Policies.

ER 10-1-5, Mississippi River Commission.

ER 10-1-8, US Army Engineer Waterways Experiment Station.

ER 10-1-16, US Army Coastal Engineering Research Board.

ER 10-1-23, US Army Corps of Engineers Water Resources Support Center.

ER 10-1-25, US Army Cold Regions Research and Engineering Laboratory.

ER 10-1-26, US Army Construction Engineering Research Laboratories.

ER 10-1-45, US Army Engineer Topographic Center (TEC).

ER 11-1-320, Civil Works Emergency Management Activities.

ER 11-2-201, Civil Works Activities - Funding, Work Allowances, and

Reprogramming.

ER 11-2-220, Civil Works Activities General Investigation (RCS: DAENCWB-12).

ER 11-2-240, Civil Works Activities - Construction & Design.

ER 25-2-1, Annual Report of the Secretary of the Army on Civil Works

Activities.

ER 37-2-10, Accounting and Reporting Civil Works Activities.

ER 70-1-5, Corps of Engineers Research and Development Program.

ER 200-2-2, Procedures for Implementing NEPA.

ER 360-1-1, Public Affairs.

ER 405-1-12, Real Estate Handbook.

ER 415-2-1, Policies & Practices - Clearing.
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A-7

ER 415-2-100, Staffing for Civil Works Projects.

ER 500-1-1, Natural Disaster Procedures.

ER 1105-2-100, Guidance for Conducting Civil Works Planning Studies.

ER 1110-2-50, Low Level Discharge Facilities for Drawdown of

Impoundments.

ER 1110-2-240, Water Control Management.

ER 1110-2-241, Use of Storage Allocated for Flood Control and

Navigation at Non-Corps Projects.

ER 1110-2-1150, Engineering and Design for Civil Works Projects.

ER 1110-2-1155, Dam Safety Assurance Program.

ER 1110-2-1156, Dam Safety - Organization, Responsibilities,and

Activities.

ER 1110-2-1302, Civil Works Cost Engineering.

ER 1110-2-1403, Studies by Corps Hydraulic and Hydrologic Facilities

and Others.

ER 1110-2-1451, Acquisition of Lands Downstream from Spillways for

Hydrologic Safety Purposes.

ER 1110-2-1454, Corps Responsibilities for Non-Federal Hydroelectric

Power Development under the Federal Power Act.

ER 1110-2-1457, Hydraulic Design of Small Boat Navigation.

ER 1110-2-1458, Hydraulic Design of Shallow Draft Navigation Projects.

ER 1110-2-1941, Drought Contingency Plans.

ER 1110-2-2902, Prescribed Procedures for the Maintenance and

Operation of Shore Protection Works.

ER 1110-2-8151, Monitoring Coastal Projects.

ER 1110-2-8154, Water Quality and Environmental Management for Corps

Civil Works Projects.

ER 1110-8-2(FR), Inflow Design Floods for Dams and Reservoirs.

ER 1130-2-406, Shoreline Management at Civil Works Projects.

ER 1130-2-500, Project Operations - Partners and Support (Work

Management Policies).

ER 1130-2-510, Project Operations - Hydroelectric Power Operations and 

Maintenance Policies.
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A-8

ER 1130-2-520, Project Operations - Navigation and Dredging Operations

and Maintenance Policies.

ER 1130-2-530, Project Operations - Flood Control Operations and 

Maintenance Policies.

ER 1130-2-540, Project Operations - Environmental Stewardship

Operations and Maintenance Policies.

ER 1130-2-550, Project Operations - Recreationn Operations and 

Maintenance Policies.

ER 1140-1-211, Support for Others: Reimbursable Work. 

ER 1150-2-302, Annual Report on Local Cooperation Agreements.

ER 1165-2-18, Reimbursement for Non-Federal Participation in Civil

Works Projects.

ER 1165-2-21, Flood Damage Reduction Measures in Urban Areas.

ER 1165-2-25, Navigation Policy: Cost Apportionment of Bridge

Alterations.

ER 1165-2-26, Implementation of Executive Order 11988 on Flood Plain

Management.

ER 1165-2-29, General Credit for Flood Control.

ER 1165-2-30, Acceptance and Return of Required, Contributed,or

Advanced Funds.

ER 1165-2-111, Corps of Engineers Activities under the Small

Reclamation Projects Act of 1956, as Amended.

ER 1165-2-117, Responsibility for Costs of Improved Standards in

Highway and Housing Relocations.

ER 1165-2-118, Federal Participation in Covered Flood Control

Channels.

ER 1165-2-119, Modifications to Completed Projects.

ER 1165-2-120, Reimbursement for Advance Non-Federal Construction of

Federally Authorized Harbor and Inland Harbor Improvements.

ER 1165-2-121, Flood Control Cost-Sharing Requirements under the

Ability-to-Pay Provision - Section 103(m) of P.L. 99-662.

ER 1165-2-123, Single-Owner Situations.

ER 1165-2-124, Construction of Harbor and Inland Harbor Projects by

Non-Federal Interests.

ER 1165-2-130, Federal Participation in Shore Protection.
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A-9

ER 1165-2-131, Local Cooperation Agreements for New Start Construction

Projects.

ER 1165-2-132, Hazardous, Toxic and Radioactive Waste (HTRW) Guidance

for Civil Works Projects.

ER 1165-2-400, Recreation Planning, Development, and Management

Policies.

ER 1180-1-6, Construction Quality Management.

ENGINEER PAMPHLETS (EP)

EP 500-1-2, Corps of Engineers Mobilization and Operations Planning

System (CEMOPS).

EP 1130-2-540, Project Operations - Environmental Stewardship

Operations and Maintenance Policies.

EP 1165-2-2, Indices of Interagency and International Agreements.

ENGINEER MANUALS (EM)

EM 1110-2-38, Environmental Quality in Design of Civil Works Projects.

EM 1110-2-301, Guidelines for Landscape Planting at Floodwalls, Levees

& Embankment Dams.

EM 1110-2-410, Design of Recreation Areas and Facilities - Access and

Circulation.

EM 1110-2-1201, Reservoir Water Quality Analyses.

EM 1110-2-1202, Environmental Engineering for Deep-Draft Navigation

Projects.

EM 1110-2-1204, Environmental Engineering for Coastal Shore

Protection.

EM 1110-2-1205, Environmental Engineering and Local Flood Control

Channels.

EM 1110-2-1411, Standard Project Flood Determinations.

EM 1110-2-1607, Tidal Hydraulics.

EM 1110-2-1611, Layout and Design of Shallow-Draft Waterways.

EM 1110-2-1613, Hydraulic Design of Deep-Draft Navigation Projects. 

EM 1110-2-1615, Hydraulic Design of Small Boat Harbors.

EM 1110-2-3600, Management of Water Control Systems.
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OFFICE MEMORANDUMS (OM) 

OM 15-2-1, Chief of Engineers Environmental Advisory Board.

OTHER PUBLICATIONS

Proposed Practices for Economic Analysis of River Basin Projects,

Interagency Committee on Water Resources, May 1950 (Revised May 1958).

Principles and Standards for Planning Water and Related Land

Resources, U.S. Water Resources Council, September 1973 (Revised 14

December 1979 and 29 September 1980).

Economic and Environmental Principles and Guidelines for Water and

Related Land Resources Implementation Studies, U.S. Water Resources

Council, 10 March 1983.

U.S. Army Corps of Engineers Tribal Policy Principles,
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 APPENDIX B

LEGISLATION PERTINENT TO THE WATER RESOURCES

PROGRAM OF THE CORPS OF ENGINEERS

B-1. 11 March 1779, Corps of Engineers. Resolved, "That the

engineers in the service of the United States shall be formed into a

corps and styled the 'Corps of Engineers,' ...That a commandant of the

Corps of Engineers shall be appointed by Congress, ...." However, the

Corps was mustered out of service in 1783 and was not permanently

organized until 1802.

B-2. 7 August 1789, Lighthouse Act of 1789. The ninth statute

enacted by the First Congress, this act initiated Federal navigational

improvements. It authorized the Secretary of the Treasury to maintain

existing lighthouses, beacons, buoys, and piers to aid navigation in

the nation's bays, inlets, ports, and harbors, provided that the

states would cede the structures to the new federal government. He

was also authorized to build a new lighthouse near the entrance to

Chesapeake Bay (1 Stat. 53-54). 

B-3. 16 March 1802, An Act Fixing the Military Establishment of the

United States. Authorizes the President "when he shall deem it

expedient, to organize and establish a corps of engineers" and

establishes that the Corps "shall be stationed at West Point in the

state of New York, and shall constitute a military academy." The

Corps traces its continuous existence to this act.

B-4. 30 April 1824, An Act to Procure the Necessary Surveys, Plans,

and Estimates, upon the subject of roads and canals (General Survey

Act). Authorizes the President to "employ two or more skilfull (sic)

engineers, and such officers of the corps of engineers, or who may be

detailed to do duty with that corps" to survey "routes of such roads

and canals as he may deem of national importance in a commercial or

military point of view, or necessary for the transportation of the

public mail." (4 Stat. 22-23) Although this act did not authorize

surveys of inland rivers, the Corps generally traces its permanent

involvement in civil works to this legislation.

B-5. 24 May 1824, Navigation. The first appropriation by Congress

for work in inland navigable waters was $75,000 for improving

navigation over sand bars in the Ohio River and for removing snags

from the Ohio and Mississippi Rivers (4 Stat. 32).

B-6. 20 May 1826, River and Harbor Act of 1826. This was the first

act that authorized both surveys and construction for numerous water

projects throughout the country. In consolidating in one act both

planning and construction, it became the first true river and harbor

law.

B-7. 3 March 1841, U.S. Lake Survey. Appropriated $15,000 for a

"hydrographic survey of the coasts of the northern and northwestern

lakes of the United States" thus initiating the U.S. Lake Survey

supervised by the Corps. This survey lasted until 1970, when most of

its responsibilities were transferred to the newly established

National Oceanic and Atmospheric Administration of the Department of

Commerce.

B-8. 11 September 1841, Joint Resolution. Land Titles. A joint

resolution, which had the force of law, prohibited the expenditure of
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B-2

public funds on lands purchased for "public buildings of any kind

whatever" until the Attorney General certified the validity of Federal

title and the relevant state legislature consented to its purchase. 

This resolution would ultimately be applied to the sites of structures

designed to improve navigation (5 Stat. 468).

B-9. 30 September 1850, Mississippi River Survey. Appropriated

$50,000 for a "topographical and hydrographical survey of the Delta of

the Mississippi". The Corps' eventual product was the Report Upon the

Physics and Hydraulics of the Mississippi River, a massive study by

Captain Andrew A. Humphreys and Lieutenant Henry L. Abbot of the Corps

of Topographical Engineers, which in its insistence upon "levees only"

substantially influenced the Corps' approach to flood problems on the

lower Mississippi and other alluvial rivers.

B-10. 31 August 1852, Lighthouse Act of 1852. Created a nine-member

Lighthouse Board, headed by the Secretary of the Treasury, to oversee

the construction, operation, and repair of Federal lighthouses, lightvessels, beacons, and buoys. Three seats on this board were to be

held by Army engineers (10 Stat. 119-20).

B-11. 3 March 1875, River and Harbor Act of 1875. Work by Contract. 

Section 1 directed that Secretary of the Army apply funds as far as

may be advantageous by contract, after public advertisement, with the

lowest responsible bidders.

B-12. 14 August 1876, River and Harbor Act. Protection of

Navigational Improvements. Section 3 first imposed Federal criminal

sanctions for wilfully injuring any federal navigational improvement

(19 Stat. 139).

B-13. 28 June 1879, Mississippi River Commission. Federal flood

control activity took definite form by the establishment of the

Mississippi River Commission with jurisdiction over navigation work

and flood control related thereto on the lower Mississippi River (21

Stat. 37, U.S.C. 641-647).

B-14. 14 June 1880, River and Harbor Act of 1880. Authorized a dam

at Lake Winnibigoshish on the headwaters of the Mississippi River for

navigation purposes. This was the first reservoir built by the Corps

of Engineers.

B-15. 24 April 1888, Land Acquisition and Condemnation Proceedings

for River and Harbor Improvements. Authorized the Secretary of the

Army to initiate condemnation proceedings for or to purchase at a

mutually agreed price any lands, rights-of-way, or material needed to

maintain, operate, or prosecute authorized works for the improvement

of rivers and harbors and to accept donations of lands or materials

required for the maintenance or prosecution of such works (24 Stat.

94, 33 U.S.C. 591)

B-16. 11 August 1888, River and Harbor Act. Fishway Construction. 

Section 11 authorized construction of fishways whenever Federal river

and harbor improvements obstruct passage of fish (26 Stat. 426, 33

U.S.C. 608).

B-17. 19 September 1890, River and Harbor Act of 1890. Mississippi

River Levees. Congress replaced language in earlier river and harbor

appropriation acts allowing the Mississippi River Commission to build

or repair levees only for navigation purposes and not to prevent flood

damages (22 Stat. 208, 23 Stat. 146, 24 Stat. 329, and 25 Stat. 421)
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B-3

with more relaxed authority to spend the appropriated funds "for the

general improvement of the river, for the building of levees, [and]

for surveys. . . in such proportion as in their opinion shall best

promote the interests of commerce and navigation" (26 Stat. 450). 

This initiated Corps activities to provide general flood relief along

the Mississippi River. The first comprehensive anti-obstruction law. 

Discharge of Wastes. Section 6 first prohibited the discharge into

navigable waters of wastes "which shall tend to impede or obstruct

navigation," except under permit from the Secretary of the Army.

Building of Structures. Section 7 prohibited the building of

structures in navigable waters outside harbor lines or the building of

bridge piers and abutments anywhere in those waters without permission

of the Secretary of the Army, except for bridges previously

authorized.

Removal of Wrecks. Section 8 authorizes the Secretary of the Army to

remove wrecks that obstruct navigation if they remain obstructions for

longer than two months.

Defacing River and Harbor Improvements. Section 9 prohibits private

persons from defacing river and harbor improvements or taking

possession of such improvements.

Unauthorized Obstructions. Section 10 provided criminal sanctions for

creating or permitting the continuance of any unauthorized obstruction

to navigation (26 Stat. 453-55).

Authorization of Harbor Lines. Section 12 authorizes the Secretary of 

the Army to establish harbor-lines where he thinks it necessary.

B-18. 21 February 1891, Commercial Statistics. Required owners,

agents, masters and clerks of vessels arriving or departing from

locations on waterway improvements to furnish statistics on vessels,

passengers, freight and tonnage (26 Stat. 766, 46 U.S.C. 48). (See

Section 11, Public Law 362, 67th Congress)

B-19. 13 July 1892, River and Harbor Act. Dredging Restrictions. 

Section 5 prohibited the expenditure of money appropriated for the

improvement of rivers and harbors, for dredging inside of duly

established harbor lines (27 Stat. 111, 38 U.S.C. 628).

B-20. 1 March 1893, Debris Commission. The California Debris

Commission was established with certain jurisdiction over hydraulic

mining of the territory drained by the Sacramento and San Joaquin

River Systems. The Commission was abolished 17 November 1988, by

Section 1106, Public Law 99-662. 

B-21. 7 August 1894, River and Harbor Act of 1894. Authorization to

Regulate New York Harbor. Sections 2 and 3 authorized the supervisor

of New York Harbor to regulate fishing, dumping, and the

transportation of waste materials within the harbor and to arrest

violators.

Rules and Regulations. Section 4 provided that "it shall be the duty

of the Secretary of the Army to prescribe such rules and regulations

for the use, administration, and navigation of any or all canals and

similar works of navigation that now are, or that hereafter may be,

owned operated or maintained by the United States as in his judgment

the public necessity may require." This section amended section 7 of

the 1884 River and Harbor Act and was itself amended by sections 6 and

11 of the 1902 River and Harbor Act.

Disposal of Wastes in Harbors. Section 6 prohibits the placing,

discharging, or depositing of any waste into the waters of any harbor

or river except for the waste flowing from streets and sewers and

"passing therefrom in a liquid state." Notably, the prohibition was

not confined to navigable waters but extended to all harbors and
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B-4

rivers of the United States. The section also prohibited the defacing

of bulkheads, jetties, dikes, levees, wharfs, pier, or other works

built by the United States and provided criminal penalties.

B-22. 3 March 1899, River and Harbor Act. Permits. Section 9

requires approval of the Chief of Engineers, the Secretary of the Army

and the consent of Congress for the construction of bridges, dams,

dike, etc., across any navigable water of the U.S. Structures built

under state authority in a single state require approval of the Chief

of Engineers and the Secretary of the Army (33 U.S.C. 401). Section

10 prohibited placing obstructions to navigation outside established

Federal lines and excavating from or depositing material in such

waters, unless a permit for the works has been authorized by the

Secretary of the Army (30 Stat. 1151, 33 U.S.C. 403).

Harbor Lines. Section 11 authorized the Secretary of the Army to

establish harbor lines beyond which no piers, wharves, etc., shall be

extended without a permit (30 Stat. 1151, 33 U.S.C. 404).

Refuse. Section 13 prohibited depositing refuse, except that flowing

from streets and sewers in a liquid state, into any navigable water

(30 Stat. 1152, 33 U.S.C. 407).

Obstructions. Section 15 prohibited obstructions by anchoring vessels

and outlines the duties of an owner of a sunken vessel (30 Stat. 1152,

33 U.S.C. 409).

Sunken Vessels. Section 19 authorized removal of sunken vessels or

other obstructions to navigation, if not removed by owner. (33 U.S.C.

414).

Vessel Grounding. Section 20 authorized removal or destruction of

sunken or grounded vessels in emergencies endangering navigation. (33

U.S.C. 415).

B-23. 13 June 1902, Public Law 154, 57th Congress--River and Harbor

Act. BERH. Section 3 authorized the establishment of the Board of

Engineers for Rivers and Harbors with a primary function of reviewing

all reports upon examinations and surveys authorized by Congress. (32

Stat. 372, 33 U.S.C. 541).

B-24. 17 June 1902, Public Law 161, 57th Congress--Reclamation. The

Reclamation Act of 1902 established irrigation in the West as a

National policy. The Act authorized the Secretary of the Interior to

locate, construct, operate and maintain works for the storage,

diversion, and development of waters for the reclamation of arid and

semi-arid lands in the Western States (32 Stat. 388, 43 U.S.C. 1457).

B-25. 3 March 1905, Public Law 215, 58th Congress--River and Harbor

Act. Refuse Regulations. Section 4 authorized the Secretary of the

Army to prescribe regulations to govern the transportation and

depositing of refuse in navigable waters (33 Stat. 1147, 33 U.S.C.

419). Section 6 provides for funding of activities associated with

implementation of the above.

B-26. 8 June 1906, Antiquities Act. Provides for criminal penalties

for anyone desecrating, injuring, excavating, or otherwise destroying

any historic or prehistoric ruin or monument without express Federal

permission. Authorizes the President to declare by public

proclamation historic and prehistoric landmarks as national monuments. 

Permits Federal agencies to transfer objects of antiquity to properly

qualified institutions. (16 U.S.C. 431 -433)
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B-5

B-27. 3 March 1909 Public Law 317, 6Oth Congress--River and Harbor

Act. Lock and Dam Replacement - Free Passage. Section 6 provided for

replacement of obsolete locks and dams on authorized waterways. (35

Stat. 818, 33 U.S.C. 5).

Hydropower Development. Sections 11 and 12 directed the Secretary of 

the Army to acquire, either by condemnation or purchase, land owned

and developed by power companies at the Falls of Marys River in

Michigan and to revoke their water-power franchises, and they

authorized him to lease water-power rights there for "a just and

reasonable compensation" as he was building a new lock and dam at the

site (35 Stat. 820-22). These provisions led to an important Supreme

Court affirmation of Federal multipurpose water development rights and

opened the way to many more multipurpose projects.

Contents of Survey Reports. Section 13 directed that reports contain

such data as may be practicable to secure regarding the establishment

of terminal and transfer facilities, development and utilization of

water power for industrial and commercial purposes, and other subjects

properly connected with the project (35 Stat. 822).

B-28. 17 June 1910, Public Law 217, 61st Congress -- Lighthouse Act

of 1910. The Lighthouse Board was replaced by a wholly civilian

Bureau of Lighthouses in the Departments of Commerce and Labor (36

Stat. 537-38).

B-29. 25 June 1910, Public Law 264, 6lst Congress--River and Harbor

Act. Stream Flow Measurements. Section 3 directed that surveys of

navigable streams include such streamflow measurements and other

investigations of the watersheds as necessary for preparation of plans

of improvements (36 Stat. 669, 33 U.S.C. 546).

B-30. 27 February 1911, Public Law 425, 6lst Congress--River and

Harbor Act. Uniform Freight Classification. Section 1 directed the

Corps to adopt a uniform system or freight classification in the

collection of statistics related to traffic and to collate ton-mileage

statistics upon rivers or inland waterways. Section 1 of 25 July 1912

Act also calls for such a uniform system. (37 Stat. 201, 33 U.S.C.

405).

B-31. 1 March 1911, Public Law 435, 6lst Congress--Conservation of

Watersheds. Section 1 enables the states to enter into compacts or

agreements with other states or the United States for the purpose of

conserving the forests, water supplies and navigability of rivers (36

Stat. 961, 16 U.S.C. 552).

B-32. 25 July 1912, Public Law 241, 62d Congress--River and Harbor

Act. BERH Functions. Section 3 authorized the BERH to examine and

review previous reports on request by Committee Resolutions (37 Stat.

232).

Future Power. Section 12 authorized the Secretary of the Army on

recommendation of Chief of Engineers to provide in any authorized dam

for navigation such foundations, sluices, and other works as may be

considered desirable for future water power development (37 Stat. 233,

33 U.S.C. 609).

B-33. 4 March 1913, Public Law 429, 62d Congress--River and Harbor

Act. Contents of Survey Reports. Section 3 required that additional

information be included in reports on terminal and transfer

facilities, water power development, and other subjects that could be

properly connected with a project (37 Stat. 825, 33 U.S.C. 545).

B-34. 4 March 1915, Public Law 291, 64th Congress--River and Harbor

Act. Contributed Funds. Section 4 authorized the Secretary of the
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B-6

Army to receive contributions from private parties for expenditure

with Federal funds on authorized river and harbor improvements (38

Stat. 1053, 33 U.S.C. 560).

Bends. Section 5 provides that channel dimensions include increases

at entrances, bends, sidings, and turning places for free movement of

vessels.

Anchorages. Section 7 authorized the Secretary of the Army to

establish anchorage grounds for vessels in all harbors, rivers, bays

and other navigable waters (38 Stat. 1053, 33 U.S.C. 471). NOTE: This

function was transferred to Secretary of Transportation by the

Department of Transportation Act of 15 Oct 1966, Public Law 89-670.

B-35. 1 March 1917, Public Law 367, 64th Congress--Flood Control Act.

Flood Control. Federal construction of flood control improvements was

extended outside the Mississippi Valley for the first time. Section 2

authorized a project for the Sacramento River, California (39 Stat.

949, 33 U.S.C. 703).

Contents of Survey for Flood Control. Section 3 provided that all

provisions of existing law on reports and projects for rivers and

harbors should apply, insofar as applicable, to flood control and

prescribed that all surveys for flood control should include a

comprehensive study of the watershed, including water power, the

effect of the improvement on navigation, and "such other uses as maybe

properly related to or coordinated with the project." This

legislation is generally considered the first Federal flood control

law.

BERH Opinion. Requires BERH, in considering flood control projects,

to state its opinion as to Federal interest, share of expense to be

borne by the Federal Government, and advisability of adopting

projects. (39 Stat. 950, 33 U.S.C. 701).

B-36. 8 August 1917, Public Law 37, 65th Congress--River and Harbor

Act of 1917. Condemnation Proceedings. Section 9 authorized the

Secretary of the Army to institute condemnation proceedings in the

name of the United States for the acquisition of any land or easement

whenever any state, any reclamation, flood control or drainage

district, or other public agency created by the state is unable to

obtain such land or easement for projects authorized by Congress (40

Stat. 267, 33 U.S.C. 593).

B-37. 18 July 1918, Public Law 200, 65th Congress--River and Harbor

Act of 1918. Condemnation. Section 5 granted the Secretary of the

Army the right to take immediate possession of lands on which he has

instituted condemnation proceedings in the name of the United States

for the acquisition of dry lands, easements, or rights-of-way needed

for authorized river and harbor improvements.

Compensation Determination. Section 6 stated that when only part of a

parcel of land is taken for navigational improvements, "any special

and direct benefits" which those improvements will cause the remainder

of the parcel must be taken into account in determining compensation

(40 Stat. 911, 33 U.S.C. 594-95).

 

B-38. 2 March 1919, Public Law 323, 65th Congress--River and Harbor

Appropriation Act. Public Terminal. Section 1 stated the policy of

Congress that "...at least one public terminal should exist,

constructed, owned, and regulated by the municipality, or other public

agency of the state and open to the use of all on equal terms,..." (40

Stat. 1286, 33 U.S.C. 551).

Contract Price. Section 8 provided that contract price should not

exceed by 25 percent the estimated cost of doing work by government 
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plant. (Amended by Public Law 95-269)

B-39. 28 February 1920, Public Law 152, 66th Congress--Transportation

Act. Section 500 stated the policy of Congress to promote water

transportation. Duties of the Secretary of the Army with the object

of promoting water transportation, were outlined. Among the

Secretary's duties was "to compile, publish, and distribute, from time

to time, such useful statistics, data and information concerning

transportation on inland waterways as he may deem to be of value to

the commercial interests of the country." This initiated the Corps'

Port Series. (41 Stat. 499, 49 U.S.C. 142).

B-40. 5 June 1920, Public Law 152, 66th Congress--Merchant Marine

Act of 1920. Section 8 provides that the United States Shipping Board

shall cooperate with the Secretary of War in promoting, encouraging,

and developing ports and transportation facilities.

B-41. 5 June 1920, Public Law 263, 66th Congress--River and Harbor

Appropriation Act. Contents of Survey Reports. Section 2 provided

that reports "shall contain a statement of special or local benefit

which will accrue to localities affected by such improvement and a

statement of general or National benefits, with recommendations as to

what local cooperation should be required, if any, on account of such

special or local benefit" (41 Stat. 1010, 33 U.S.C. 547).

B-42. 10 June 1920, Public Law 280, 66th Congress--The Federal Water

Power Act. Control non-Federal development of hydroelectric power

through a licensing system to be administered by the newly created

Federal Power Commission (FPC). Public Law 95-91 created the Federal

Energy Regulatory Commission to replace functions administered by the

FPC. (41 Stat. 1063, 16 U.S.C. 797e).

B-43. 22 September 1922, Public Law 362, 67th Congress. Adoption of

Projects Time Limit. Section 9 directs that no projects will be

considered for adoption, except with a view to a survey, if five years

elapsed since the report on the proposed project was submitted to

Congress.

Waterborne Commerce Statistics. Section 11 provides for the principal

program governing the collection and compilation of statistics on the

water borne commerce of the U.S.

Extension of Jurisdiction of Mississippi River Commission. Section 13

extends jurisdiction of Mississippi River Commission for the purposes

of levee and bank protection, to the tributaries and outlets of the

Mississippi River between Cairo, Ill. and the Head of the Passes. (42

Stat. 1043, 33 U.S.C. 555).

B-44. 7 June 1924, the Oil Pollution Control Act, 1924. Prohibited

the discharge of oil into navigable waters except for certain

emergencies, authorized the Secretary of War to prescribe regulations,

and authorized Army Engineer officers and officers of the Customs and

Coast Guard Service to arrest violators.

B-45. 3 March 1925, Public Law 585, 68th Congress--River and Harbor

Act. Contributed Funds. Section 11 authorizes acceptance of funds

advanced by local interests for prosecution of rivers and harbors

work.

B-46. 21 January 1927, Public Law 560, 7Oth Congress--River and

Harbor Act. 308 Reports. Section 1 authorized surveys in accordance

with H. Doc. 308, 69th Congress. (Usually referred to as "308
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Reports") on comprehensive development for navigation, waterpower, and

flood control. This provided Congress basis for some emergency relief

projects of the l930’s and the basic plan of TVA. (45 Stat. 534).

B-47. 15 May 1928, Public Law 391, 7Oth Congress--The Flood Control 

Act of 1928. Comprehensive MR&T. Section 1 authorized the

comprehensive plan for control of the Mississippi River and

tributaries. (45 Stat. 534, 33 U.S.C. 7O2a).

B-48. 3 July 1930, Public Law 520, 7lst Congress--River and Harbor

Act. Beach Erosion Board Established. Section 2 established the

Beach Erosion Board (BEB). This Act of Congress provided for the

Federal Government to make shore and beach protection studies in

cooperation with local interests. The BEB was directed to furnish

technical assistance and review reports of the investigations (46

Stat. 945, 33 U.S.C. 426). NOTE: The Act of 7 November 1963 abolished

BEB, transferred review functions to BERH, and established the Coastal

Engineering Research Center.

B-49. 10 February 1932, Public Law 16, 72d Congress--Recreational

Boating. "The Fletcher Act" broadened the scope of Federal interest

in navigation to include as "commerce" the use of waterways by

"seasonal passenger craft, yachts, houseboats, fishing boats,

motorboats, and other similar water craft, whether or not operated for

hire". (47 Stat. 42, 33 U.S.C. 541)

B-50. 16 June 1933, National Industrial Recovery Act. Under the

provisions of this legislation, President Franklin D. Roosevelt

authorized the construction of several Corps locks and dams, including

Fort Peck and Bonneville.

B-51. 23 April 1934, Payment for Levee Rights-of-Way in the Lower

Mississippi Valley (Overton-Dear Act). This Act resolved the bitter

controversy which had arisen from conflicting interpretations of the

1928 Flood Control Act. The government abandoned its efforts to compel

owners of property along the tributaries of the lower Mississippi

River to donate levee rights-of-way at no cost to the Government.

B-52. 30 August 1935, Public Law 409, 74th Congress--River and Harbor

Act. Content of Survey Reports. Section 5 required that studies of

the improvement of the entrance of the mouth of any river or of any

inlet contain information concerning the possible accretion/erosion

effects of the improvements on the shoreline for at least 10 miles on

either side (49 Stat. 1048, 33 U.S.C. 546a).

B-53. 22 June 1936, Public Law 738, 74th Congress--Flood Control Act. 

Federal Interest. Section 1 declared flood control to be a proper

Federal activity; that improvements for flood control purposes are in

the interest of the general welfare; that the Federal Government

should improve or participate in the improvement of navigable waters

or their tributaries for flood control "if the benefits to whomsoever

they may accrue are in excess of the estimated costs, and if the lives

and social security of people are otherwise adversely affected" (49

Stat. 1570, 33 U.S.C. 7Ola). 

Jurisdiction. Section 2 set forth the jurisdiction of Federal

activities and prescribed among other things, "That, hereafter,

Federal investigations and improvements of rivers and other waterways

for flood control and allied purposes shall be under the jurisdiction

of and shall be prosecuted by the Army Department under direction of 
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the Secretary of the Army and supervision of the Chief of Engineers"

(49 Stat. 1570, 33 U.S.C. 7Olb). 

Local Cooperation. Section 3 stipulated for the projects authorized

therein what have become known as the "a-b-c" requirements of local

cooperation; that local interests should: (a) provide without cost to

the United States all lands, easements, and rights-of-way necessary

for the construction of the project; (b) hold and save the United

States free from damages due to the construction works; (c) maintain

and operate all the works after completion in accordance with

regulations prescribed by the Secretary of the Army (49 Stat. 1571, 33

U.S.C. 7Olc). Requirement (b) was amended by Section 9 of the Water

Resources Development Act (WRDA) of 1974 (Public Law 93-251).

B-54. 26 June 1936, An Act For the Improvement and Protection of the

Beaches Along the Shores of the United States. Federal Assistance. 

Section 1 provided for Federal assistance in the construction, but not

maintenance, of shore improvement and protection projects to prevent

coastal erosion in areas where "Federal interests" were involved.

Investigations. Section 2 authorized the Beach Erosion Board to make

investigations to determine "the most suitable means of beach

protection and restoration of beaches in different localities" and to

advise states, political subdivisions, and individuals of appropriate

places for recreational facilities, and to publish its findings.

Beach Erosion Board Opinion. Section 3 directed the Beach Erosion

Board, when making reports on potential shore protection projects, to

state its opinion on the advisability of the project, the Federal

interest in the project, and the share of the expense that should be

borne by the United States.

B-55. 19 July 1937, Public Law 208, 75th Congress--Contributed Funds. 

Authorized the Secretary of the Army to receive and expend funds

contributed by states and political subdivisions in connection with

funds appropriated by the United States for flood control projects

when considered advantageous to the public interest (50 Stat. 518, 33

U.S.C. 7Olh).

B-56. 28 August 1937, Public Law 406, 75th Congress--Flood Control

Act. Clearing and Snagging. Section 2 authorized small clearing and

snagging projects for flood control, limited in Federal cost per

project (50 Stat. 877, 33 U.S.C. 7Olg). Subsequently amended 24 July

1946 by Section 13, Public Law 526, 79th Congress; 24 September 1954

by Section 208, Public Law 780, 83d Congress (these projects are

customarily referred to as "Section 208 Projects"); 7 March 1974 by

Section 26, Public Law 93-251, and 17 November 1986 by Section 915(b),

Public Law 99-662. The latter amended the Federal limit per project

to $500,000.

B-57. 20 June 1938, Public Law 685, 75th Congress--River and Harbor

Act of 1938. Land Exchange. Section 2 authorized the Secretary of

the Army upon the recommendation of the Chief of Engineers, to

exchange land or other property of the Government for private lands or

property which may be advisable in the execution of authorized work of

river and harbor improvement.

Easements. Section 10 authorized the Secretary of the Army to grant

easements for rights-of-way for public roads across Federal lands. 

(52 Stat. 804, 33 U.S.C. 558b).

B-58. 28 June 1938, Public Law 761, 75th Congress--Flood Control Act

of 1938. Modified a-b-c's. Section 2 modified the Flood Control Act

of 22 June 1936 eliminating the a-b-c requirements for flood control

reservoirs, channel improvement or channel rectification projects. 
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Lands, easements and rights-of-way include highway, railway and

utility relocation. Amended by Act of 18 August 1941 (52 Stat. 1215,

33 U.S.C. 701 c-1). 

Flood Area Evacuation. Section 3 provided for modification of

authorized projects to provide for evacuation of all or parts of flood

areas where such action would substantially reduce protection costs of

authorized flood walls or levees (52 Stat. 1216, 33 U.S.C. 7Oli).

Future Power. Section 4 authorized installation of facilities for

future power use when approved by the Secretary of the Army on

recommendation of the Chief of Engineers and the Federal Power

Commission (52 Stat. 1216, 33 U.S.C. 7Olj).

B-59. 4 August 1939, Public Law 260, 76th Congress--Reclamation

Project Act of 1939. Section 9(b) permitted the Bureau of

Reclamation to allocate part of reclamation project costs to flood

control and navigation. In connection with the making of such an

allocation, the Secretary of Interior shall consult with Chief of

Engineers and Secretary of the Army and may perform necessary

investigations or studies under a cooperative agreement with the

Secretary of the Army (53 Stat. 1193, 43 U.S.C. 485h).

B-60. 1 February 1940, Public Law 409, 76th Congress. Federal

Jurisdiction. Repealed the provision of the Joint Resolution of 11

September 1841 requiring state consent to the purchase of land for

Federal buildings prior to the expenditure of public funds at the

site. The Federal Government would henceforth have the option of

obtaining civil and criminal jurisdiction at each site. This law

eliminated the legal ability of state governments to veto Federal

navigational or flood control projects.

B-61. 21 June 1940, Public Law 647, 77th Congress--Bridge

Alterations. The Bridge Alteration Act (Truman-Hobbs Act) provided

for apportionment, between the U.S. and the owners, of the cost of

altering or relocating railroad and combined railroad and highway

bridges, when found unreasonably obstructive to navigation. (Amended

16 July 1952 to be applicable to public highway bridges also). The

owner must bear the part of the cost attributable to direct and

special benefits accruing to the owner and the U.S. pays the balance

including that attributable to the necessities of navigation (54 Stat.

497, 33 U.S.C. 516). Corps responsibility for administration of the

Act were transferred to Department of Transportation 15 Oct 1966. 

Section 6 remains the basis for sharing cost of bridge changes in

navigation survey reports.

B-62. 18 August 1941, Public Law 228, 77th Congress--Flood Control

Act of 1941. Local Cooperation. Section 2 modified the 1936 and the

1938 Flood Control Acts (FCA) and required the a-b-c requirements only

for channel and local protection projects and not for flood control

reservoirs. This section also provided that authorization for any

flood control project shall expire unless cooperation is furnished

within 5 years after notification. This provision has been included

in subsequent Flood Control Acts (55 Stat. 638, U.S.C. 701-c).

Emergency Flood Control Work. Section 5 authorized $1 million per

year to be used for rescue work or repair, restoration or

maintenance of damaged or threatened flood control works. (Section 5

was subsequently amended by Section 12 of the 1946 FCA; Section 206 of

the 1948 FCA; Section 210 of the 1950 FCA; Public law 84-99; Section

206 of the 1962 FCA; Section 917 of WRDA 1986; Section 9 of the Farm

Disaster Assistance Act of 1987; Section 302 of WRDA 1990; and Section

202 of WRDA 1996.)
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Sharing Leasing Monies. Section 7 provided that 25 percent of money

from leasing of reservoir lands be paid to the state for schools and

roads. Later amended to 75 percent by Public Law 780, 83d Congress.

(33 U.S.C. 701c-3)

B-63. 22 December 1944, Public Law 534, 78th Congress--Flood Control

Act of 1944. Rights of States. Section 1 declared policy of Congress

to recognize rights and interests of the states in water resource

development, and requirement for consultation and coordination with

affected states (58 Stat. 887, 33 U.S.C. 701-1). 

Coordination with Department of Interior. Section 1 calls for

coordination with the Department of the Interior in cases involving

water rising west of the 97th meridian.

Major Drainage. Section 2 defined major drainage as flood control. 

This provides legislative basis for consideration of major drainage

improvements in flood control investigations and reports (58 Stat.

889, 33 U.S.C. 701a-1).

Recreation. Section 4 authorized providing facilities in reservoir

areas for public use, including recreation and conservation of fish

and wildlife (58 Stat. 889, 16 U.S.C. 460-b).

Power Disposition. Section 5 provided for disposal by the Secretary

of the Interior of surplus electric power from Corps projects (58

Stat. 890, 16 U.S.C. 825-s).

Water Supply. Section 6 authorized disposal by the Secretary of the

Army, for domestic and industrial uses, of surplus water available at

reservoirs. (33 U.S.C. 708)

Regulations for Use of Storage. Section 7 specified that the

Secretary of the Army shall prescribe regulations for the use of

storage allocated for flood control or navigation to all reservoirs

constructed wholly or in part with Federal funds, except those of the

TVA (58 Stat. 890, 33 U.S.C. 709).

Irrigation. Section 8 provided that Corps reservoirs may include

irrigation purpose in 17 western states.

B-64. 2 March 1945, Public Law 14, 79th Congress--River and Harbor

Act of 1945. Clearing and Snagging. Section 3 authorized small

clearing and snagging projects for navigation or flood control. 

Annual expenditure for Nation limited to $300,000 (59 Stat. 23, 33

U.S.C. 603a). This limit was raised to $1 million per year, 17

November 1986, by Section 915(g), Public Law 99-662.

B-65. 31 July 1945, Public Law 166, 79th Congress--Shore Protection

Studies. This Act established authority for the Beach Erosion Board

to pursue a program of general investigation and research and to

publish technical papers (59 Stat. 508, 33 U.S.C. 426a). (BEB

abolished and functions transferred to the BERH by Section 1 and

Section 3, respectively, of Public Law 88-172).

B-66. 24 July 1946, Public Law 526, 79th Congress--Flood Control Act

of 1946. Submission of reports. Section 2 states that no project or

modification not authorized, of a project for flood control or rivers

and harbors shall be authorized by the Congress unless a report for

such project has been previously submitted by the Chief of Engineers.

R.R. Bridge Alterations. Section 3 authorized the Chief of Engineers

to include at Federal expense necessary alterations to railroad

bridges on authorized flood-protection projects (60 Stat. 642, 33

U.S.C. 7Olp).

Leases. Section 4 amended Public Law 534, 78th Congress, to include

authority to grant leases to non-profit organizations at recreation

facilities in reservoir areas at reduced or nominal charges (60 Stat. 
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30 Jul 99

B-12

642, 16 U.S.C. 460d).

Repair of Facilities Damaged by Operation of Corps Dam. Section 9

authorized repair of highway, railroad, or utility damaged by the

operation of a dam or reservoir (60 Stat. 643, 33 U.S.C. 70lq).

Emergency Flood Control Work. Section 12 amends Section 5 of the 1941

FCA to increase the authorized annual funding level from $1 million to

$2 million.

Emergency Bank Protection. Section 14 authorized emergency bank

protection works to prevent flood damage to highways, bridge

approaches and public works. Annual expenditures were limited to

$1,000,000 with not more than $50,000 at any single locality (60 Stat.

654, 33 U.S.C. 70lr). NOTE: Amended by Public Law 93-251 which

granted authority to protect churches, hospitals, schools, and other

non-profit public services. Expenditure limits were raised to $ 15

million a year for the program and $ 1,000,000 per locality, 12

October 1996, by Section 219, Public Law 104-303.

B-67. 13 August 1946, Public Law 727, 79th Congress. Shore

Protection Cost Sharing. Authorized Federal participation up to

one-third of the cost, but not the maintenance, of protecting shores

of publicly-owned property (Amended by Acts dated 28 July 1956, 23

October 1962, 31 December 1970 and WRDAs of 1986 and 1996) (60 Stat.

1056, 33 U.S.C. 426e).

B-68. 14 August 1946, Public Law 732, 79th Congress--Fish and

Wildlife Coordination Act. Provides for coordination with Fish and

Wildlife Service. This Act amended Act of 10 March 1934 and was

amended, in turn, by The Act of 12 August 1958.

B-69. 30 June 1948, Public Law 845, 80th Congress--Water Pollution

Control Act. Authorized the Surgeon General to assist in and

encourage studies and plans, interstate compacts, and creation of

uniform state laws to control pollution (62 Stat. 1155, 33 U.S.C.

1151).

Pollution Control Board. The Federal Water Pollution Control Advisory

Board was established. Provisions were made for low interest loans,

grants to states for pollution studies, and grants in drafting

construction plans.

B-70. 30 June 1948, Public Law 858, 80th Congress--Flood Control Act

of 1948. Small Flood Control Projects. Section 205 authorized the

construction of small flood control projects not been specifically

authorized by Congress. A Federal expenditure limit was placed on

each project as well as the total program funds allotted per fiscal

year. The latest amendment is Section 915(a), Public Law 99-662,

which sets the Federal limit per project at $5 million and the total

annual program limit at $40 million. (62 Stat. 1182, 33 U.S.C. 70ls).

Emergency Flood Control Work. Section 206 expanded Section 5 of the

1941 FCA, as amended, to authorize the Chief of engineers to raise ,

extend, or modify such flood control works.

B-71. 17 May 1950, Public Law 516, Title I--River and Harbor Act of

1950. Consultants. Section 105 authorized the Chief of Engineers to

procure temporary or intermittent services of experts or consultants

or organizations in connection with civil functions of the Corps of

Engineers without regard to the Classification Act (64 Stat. 168, 33

U.S.C. 569a). 

Transfer of Bridges. Section 109 authorized the Secretary of the Army

to transfer or convey to state authorities or political subdivisions

all rights, title and interest of the United States in and to all 
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30 Jul 99

B-13

bridges constructed or acquired in connection with the improvement of

canals, rivers, harbors or flood control works etc., if determined to

be in the best interest of the United States (64 Stat. 169, 33 U.S.C.

534).

Title II--Flood Control Act of 1950. Section 210 amended Section 5 of

the 1941 FCA, as amended, to increase the annual authorized funding

level from $2 million to $15 million, and to authorize the Secretary

of the Army to allot funds from other flood control appropriations for

immediate works until appropriations are made.

B-72. 17 July 1952, Public Law 579, 82d Congress--Water Pollution

Control Act Extension. Extended the provisions of the Water Pollution

Control Act (Public Law 845, 80th Congress) for an added three years

through fiscal years 1954-1956 (66 Stat. 755, 33 U.S.C. 1159, 1160).

B-73. 7 August 1953, Public Law 212, 83rd Congress--Outer Continental

Shelf Lands Act. Section 4(f) extended the authority of the Secretary

of the Army to prevent obstructions to navigation in the navigable

waters of the United States by including artificial islands and fixed

structures located on the outer continental shelf (67 Stat. 463; 43

U.S.C. 1333(f)).

B-74. 4 August 1954, Public Law 566, 83rd Congress--Watershed

Protection and Flood Prevention Act. Authorized the Secretary of

Agriculture to cooperate with states and other public agencies in

works for flood prevention and soil conservation. Established the

Small Watershed Program of the Soil Conservation Service, Department

of Agriculture.

B-75. 3 September 1954, Public Law 780, 83rd Congress--Flood Control

Act of 1954.

B-76. 15 June 1955, Public Law 71, 84th Congress--Hurricane Studies. 

Authorized studies of the coastal and tidal areas of the eastern and

southern U.S. with reference to areas where damages had occurred from

hurricanes (69 Stat. 132).

B-77. 28 June 1955, Public Law 99, 84th Congress--Emergency Flood

Control Work. Amends Section 5 of the 1941 FCA, as amended, to

authorize flood emergency preparation and delete the requirement for

maintenance of subject flood control works.

B-78. 28 July 1956, Public Law 826, 84th Congress--Beach Nourishment. 

Section 1(c) defines periodic beach nourishment as "construction" for

the protection of shores, when it is the most suitable and economical

remedial measure. Section 1(d) provided for Federal assistance to

privately owned shores if there is benefit from public use or from

protection of nearby public property (70 Stat. 702, 33 U.S.C. 426e).

B-79. 2 July 1958, Public Law 85-480--Publications. Authorized the

Chief of Engineers to publish and sell information pamphlets, maps,

brochures and other material on river and harbor, flood control and

other civil works activities (72 Stat. 279, 33 U.S.C. 557a-b).

B-80. 3 July 1958 Public Law 85-500,--River and Harbor and Flood

Control Act of 1958. Relocation of Governmental Structures. Section

111 authorizes the Chief of Engineers to protect, alter, reconstruct,

relocate, or replace any governmental structure or facility to meet a

navigation or flood control purpose; or preserve the facility when it

is determined that the safety or usefulness will be adversely affected 
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B-14

or threatened by the project. (72 Stat. 303) NOTE: Amended by

Section 309, Public Law 89-298.

Hurricane Projects. Section 203 added provisions of local cooperation

on three hurricane flood protection projects which established an

administrative precedent for cost sharing in hurricane projects. 

Non-Federal interests were required to assume 30 percent of total

first costs, including the value of land, easements and rights of way,

and operate and maintain the project. (72 Stat. 297). NOTE: Section

103 of Public Law 99-662 now prescribes hurricane and storm damage

reduction project cost sharing.

Water Supply. Section 301 (Water Supply Act of 1958) provided that

storage may be included for present and future municipal or industrial

water supply in Corps or Bureau of Reclamation projects; the costs

plus interest to be repaid by non-Federal entities within the life of

the project but not to exceed 50 years after first use for water

supply. No more than 30 percent of total project costs may be

allocated to future demands. An interest-free period, until supply is

first used, but not to exceed ten years, was permitted. (72 Stat. 319,

43 U.S.C. 390b). NOTE: These provisions were modified by Public Law

99-662.

Aquatic Plant Control Program. Section 104 authorized a comprehensive

project for control and progressive eradication of water-hyacinth,

alligator weed, and other obnoxious aquatic plant growths in eight

southern states. (72 Stat. 297, 300).

B-81. 12 August 1958, Public Law 85-624--Fish and Wildlife

Coordination Act. Provided that fish and wildlife conservation

receive equal consideration and coordination with other project

purposes. (72 Stat. 563, 16 U.S.C. 661).

B-82. 28 August 1958, Public Law 85-767. Authorized Federal agencies

to design and construct dams in such a manner to support a public

highway bridge, including construction of the bridge itself. (72 Stat.

917; 23 U.S.C. 320).

B-83. 27 June 1960, Public Law 86-523--Reservoir Salvage Act. 

Provides for the preservation of historical and archeological data, by

the Secretary of the Interior, which might otherwise be lost as the

result of the construction of a dam (74 Stat. 220). Act further

amended by Public Law 93-291.

B-84. 14 July 1960, Public Law 86-645--River and Harbor and Flood

Control Act of 1960. Small Navigation Projects. Section 107

established a special continuing authority authorizing construction of

small navigation projects. Latest amendment is Section 915(d) of

Public Law 99-662, which sets the annual program limit at $35 million

and the limit on Federal expenditures per project at $4 million. (74

Stat. 486, 33 U.S.C. 577).

Development of Public Port or Industrial Facilities. Section 108

authorizes disposition of property for the purpose of developing or

encouraging the development of such facilities (74 Stat. 486; 33

U.S.C. 578).

Flood Plain Information. Section 206 (as subsequently amended by

Section 206 of Public Law 89-789) authorized flood plain information

studies (74 Stat. 500, 33 U.S.C. 709a).

Road Relocations. Section 207 authorizes the Chief of Engineers to

either improve, reconstruct, or maintain existing public roads used

for the construction of a project (74 Stat. 501). NOTE: Criteria for

design of replacement roads established in Section 13, Public Law

93-251.

Land Acquisition. Title III known as the "Land Acquisition Policy Act
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B-15

of 1960" established the policy of Congress that owners and tenants

whose property is acquired for a project "shall be paid a just and

reasonable consideration therefor" (74 Stat. 502, 33 U.S.C. 596).

B-85. 6 September 1960, Public Law 86-717--Forest Conservation. 

Provided for the protection of forest cover for reservoir areas under

the jurisdiction of the Secretary of the Army and the Chief of

Engineers (74 Stat. 817, 16 U.S.C. 580m).

B-86. 20 July 1961, Public Law 87-88--Federal Water Pollution Control

Act Amendments of 1961. Amended the Federal Water Control Act (70

Stat. 498) to provide for a more effective program of water pollution

control, and for other purposes (75 Stat. 204, 33 U.S.C. 1151).

Water Quality Storage. Section 2 amended existing law to include

consideration of storage in Federal projects for water quality

control, except that such storage shall not be a substitute for

adequate treatment or control at the source (75 Stat. 204, 33 U.S.C.

1153). NOTE: Amended and restated by Sec 102(b), Public Law 92-500.

B-87. 14 September 1961, Public Law 87-236. Authorizes the Secretary

of the Army to modify certain leases entered into prior to 1 November

1965 for the provision of recreational facilities in reservoir areas

(75 Stat. 509; 16 U.S.C. 460d-1).

B-88. 5 September 1962, Public Law 87-639. Joint Investigations. 

Section 1 authorizes the Secretary of the Army and the Secretary of

Agriculture to make joint investigations and surveys of watershed

areas and prepare joint reports on those investigations and surveys

when authorized by the Public Works Committee of the Senate or House

of Representatives.

B-89. 23 October 1962, Public Law 87-874--River and Harbor and Flood

Control Act of 1962. Shore Protection. Section 103 amended the Act

approved 13 August 1946, as amended by the Act approved 28 July 1956

and indicated the extent of Federal participation in the cost of beach

erosion and shore protection (50 percent of the construction cost when

the beach are publicly owned or used, and 70 percent Federal

participation for seashore parks and conservation areas when certain

conditions of ownership and use of the beaches are met--these

provisions are modified by the provisions of Public Law 99-662. Also

see Section 227 of WRDA 1996). 

Small Beach Erosion Projects. Authority for the Secretary of the Army

to undertake construction of small beach and shore protection projects

was also established under Section 103. (Latest amendment, setting

the limit of Federal expenditures per project at $2 million, is

Section 915(e) of Pubic Law 99-662.) (76 Stat. 1178, 33 U.S.C. 426g).

Aquatic Plant Control. Section 104 changed cost-sharing so that all

research and planning costs prior to construction are borne by U.S.

Survey Studies of U.S. Coastal Areas. Section 110 allows survey

studies to be made in the interest of beach erosion control, hurricane

protection, and related purposes, provided such studies are authorized

by appropriate resolutions of either the Committee on Public Works of

the U.S. Senate or the Committee on Public Works of the House of

Representatives.

Emergency Flood Control Works. Section 206 amends Section 5 of the

1941 FCA, as amended, to authorize the Chief of Engineers to undertake

measures to protect, repair or restore federally authorized hurricane

or shore protection projects threatened, damaged or destroyed by wind,

wave or water action of other than ordinary nature.
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Recreation, Non-Reservoir Projects. Section 207 amended Section 4 of

the 1944 Flood Control Act and permitted recreational developments at

on-reservoir projects (76 Stat. 1195, 16 U.S.C. 460d).

Road Improvement and Replacement. Section 208 amends Section 207(b)

of the Flood Control Act of 1960 to allow improvement of existing

public roads for construction access to Federal projects and to allow

construction of relocated roads to present day standards rather than

replacement in kind (76 Stat. 1196, 33 U.S.C. 70lr-1). (Amended by

Section 13, Public Law 93-251)

B-90. 16 October 1963, Public Law 88-140--Extension of Right to Water

Supply Storage. Extended non-Federal right to use reservoir water

supply storage to the physical life of the project. This removed an

uncertainty as to the continued availability of the storage space

after the 50-year maximum period previously allowed in contracts (77

Stat. 249, 43 U.S.C. 390-c-e).

B-91. 7 November 1963, Public Law 88-172. CERC Established. Section

1 abolished the Beach Erosion Board and established the Coastal

Engineering Research Center (77 Stat. 304, 33 U.S.C. 426-1nt). BEB

Functions Transferred. Section 3 transferred the review functions of

the Beach Erosion Board to BERH (77 Stat. 305, 33 U.S.C. 4263).

B-92. 3 September 1964, Public Law 88-578--Land and Water

Conservation Fund Act of 1964. Established a fund from which Congress

can make appropriations for outdoor recreation. The fund derives

revenue from entrance and user fees, sale of surplus Federal property,

and the Federal motorboat fuel tax. Entrance and user fees at

reservoirs were made possible by Section 2 (a) which deleted the words

"without charge" from Section 4 of the 1944 Flood Control Act as

amended (78 Stat. 897, 16 U.S.C. 4601-4). NOTE: Section amended and

restated by Section 101(1), Public Law 94-422.

B-93. 9 July 1965, Public Law 89-72--Federal Water Project Recreation

Act-Uniform Policies. Required consideration of opportunities for

outdoor recreation and fish and wildlife enhancement in planning water

resources projects. Recreational use of the project will be

coordinated with other existing and planned Federal, state, or local

recreational developments. Non-Federal bodies will be encouraged to

operate and maintain the project recreational and fish and wildlife

enhancement facilities. If non-Federal bodies agree in writing to

administer the facilities at their expense and to pay one-half the

separable first cost, the recreation and fish and wildlife benefits

shall be included in the project benefits and project cost allocated

to recreation and fish and wildlife. Fees may be charged by the

non-Federal interests to repay their costs. If non-Federal bodies do

not so agree, no facilities for recreation and fish and wildlife may

be provided except those justified to serve other purposes or as

needed for public health and safety. However, project land may be

acquired to preserve the recreational potential. If within 10 years

after initial project operation there is no local agreement, the land

may be used for other purposes or sold (79 Stat. 213, 16 U.S.C.

460-1-12). (Amended by Section 77 Public Law 93-251)

B-94. 22 July 1965, Public Law 89-80 (Amended by Public Law

94-112)--Water Resources Planning Act. Water Resources Council

Established. Established a Water Resources Council. The Act

establishes river basin commissions and provides for financial

assistance to the states (79 Stat. 244, 42 U.S.C. 1962).
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B-17

B-95. 27 October 1965, Public Law 89-298--River and Harbor and Flood

Conrol Act. Administrative Authority. Section 201 permits the

Secretary of the Army to administratively authorize water resources

development projects where the estimated Federal cost is less than $10

million. Approval by Public Works Committees is required prior to

appropriation of funds (79 Stat. 1073, 42 U.S.C. l962d-5). NOTE:

Monetary limit increased to $15 million by Section 131, Public Law

94-587. 

Work for Other Agencies. Section 219 authorizes accepting orders from

other Federal agencies for work or services.

Aquatic Plant Control. Section 302 extended the program nationwide

(79 Stat. 1093, 33 U.S.C. 610).

Relocation of Government Facilities. Section 309 amends Section 111

of the R&H Act of 1958 to define further the Federal policy on

relocation of structures "or" facilities owned by an agency of

government and used in a governmental function (79 Stat. 1094, 33

U.S.C. 633).

B-96. 4 July 1966, Public Law 89-487--Freedom of Information Act. Provided guidelines for public availability of records of Federal

agencies. Public Law 90-23, approved 5 June 1967, codified the

provisions of Public Law 89-487 (80 Stat. 250 and 81 Stat. 54, 5

U.S.C. 552). Amended by Public Law 93-502.

B-97. 15 October 1966, Public Law 89-670--The Department of

Transportation Act. DOT Established. Established the Department of

Transportation (80 Stat. 931, 49 U.S.C. l65 lnt).

Navigation Benefits Defined. Section 7(a) stated that standards and

criteria for economic evaluation of water resource projects shall be

developed by the Water Resources Council, defined "primary direct

navigation benefits," and expands the Council to include the Secretary

of Transportation on matters pertaining to navigation features of

water resource projects.

Transferred Corps Activities. Corps activities transferred to

Department of Transportation included:

 a. Regulation of the location of vessels at anchor. 

 b. Prescribing drawbridge operating regulations. 

 c. Determining and ordering the alteration of obstructive

bridges (Truman-Hobbs). 

 d. Review and determination of the reasonableness of tolls 

charged for crossing bridges.

 e. Administration of laws relating to prevention of pollution of

the high seas by oil (Oil Pollution Act, 1961). 

 f. Control of the location and clearances of bridges and

causeways in the navigable waters (80 Stat. 941, 49 U.S.C. 1656).

B-98. 15 October 1966, Public Law 89-665--National Historic

Preservation Act of 1966. Directs the Federal Government to provide

leadership in preserving, restoring and maintaining the historic and

cultural environment of the Nation. Authorizes the Secretary of the

Interior to expand and maintain a national register of districts,

sites, buildings, structures, and objects significant in American

history, architecture, archaeology and culture, referred to as the

National Register. Also establishes the Advisory Council on Historic

Preservation composed of 29 members, one of which is the Secretary of

Defense. (80 Stat. 915, 16 U.S.C. 470 et seq.)

B-99. 1 August 1968, Public Law 90-448--Flood Insurance. Title XIII

authorized a flood insurance program and provided means for necessary 
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coordination between agencies and states as required for studies

pertaining to land management, zoning or other appropriate

arrangements to carry out such authority (82 Stat. 572, 42 U.S.C.

4001).

B-100. 3 August 1968, Public Law 90-454--Estuary Protection Act. 

Section 4 requires all Federal agencies, in planning for the use or

development of water and related land resources, to give consideration

to estuaries and their natural resources (82 Stat. 625, 16 U.S.C. 1221

et seq.).

B-101. 13 August 1968, Public Law 90-483--River and Harbor and Flood

Control Act of 1968. Mitigation of Shore Damages. Section 111

authorized investigation and construction of projects to prevent or

mitigate shore damages resulting from Federal navigation works, at

full Federal cost limited to $1 million per project. Amended 17

November 1986 by Sections 915(f) and 940, Public Law 99-662 which,

among other things, increased the limit on Federal costs per project

to $2 million. (82 Stat. 735, 33 U.S.C. 426i).

Excess Depths Maintenance. Section 117 authorized use of Civil Works

funds for maintenance of excess depths required and constructed for

defense purposes where the project also serves essential needs of

general commerce (82 Stat. 737, 33 U.S.C. 562a).

User Charges. Section 210 restricted (after 31 March 1970) collection

of entrance fees at Corps lakes and reservoirs to users of highly

developed facilities requiring continuous presence of personnel (82

Stat. 746, 16 U.S.C. 4600d-3).

Reimbursement for Non-Federal Expenditures. Section 215 authorized

reimbursement (including credit against local cooperation

requirements) for work performed by non-Federal public bodies after

authorization of water resource development projects. Execution of a

prior agreement with the Corps was required and reimbursement was not

to exceed $1 million for any single project. Amended 17 November 1986

by Section 913, Public Law 99-662, 17 November 1988 by Section 12,

Public Law 100-676, and 12 October 1996 by Section 224, Public Law

104-303 to increase the limit on reimbursements per project to $5

million. (82 Stat. 747, 42 U.S.C. l962d-5a).

B-102. 2 October 1968, Public Law 90-542--Wild and Scenic Rivers Act.

Selection of Wild Rivers. Section 3 listed eight rivers as the

initial components of the National Wild and Scenic Rivers System (82

Stat. 907, 16 U.S.C. 1274).

Potential Rivers. Section 5 listed 27 rivers as potential additions

to the system. Section 5 (d) required that plans for water resource

development consider setting aside certain streams as wild, scenic, or

recreational rivers as an alternative to other uses (82 Stat. 910, 16

U.S.C. 1276).

B-103. 2 October 1968, Public Law 90-543--National Trails System Act. Provided for a National system of trails and designates the

Appalachian and Pacific Crest Trails as the initial components of the

system (82 Stat. 919, 16 U.S.C. 1241).

B-104. 16 October 1968, Public Law 90-577--Intergovernmental

Cooperation Act of 1968. Provides for cooperation and coordination of

activities among levels of government, improved administration of

programs for technical services to states and local governments,

intergovernmental coordination on policy and administration of

development assistance programs within urban areas, and periodic

Congressional review of such grants-in-aid programs (82 Stat. 1098; 42 
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U.S.C. 4201).

B-105. 24 December 1969, Public Law 91-152--National Flood Insurance

Act Amended. Extended insurance to mud slides, and date for local

assurances to 31 December 1971 (83 Stat. 397, 42 U.S.C. 4121).

B-106. 1 January 1970, Public Law 91-190--National Environmental

Policy Act of 1969. Federal Policy. Section 101 established a broad

Federal policy on environmental quality (83 Stat. 852, 42 U.S.C.

4331).

Agency Requirements. Section 102 directed that policies, regulations,

and public laws, will be interpreted and administered to the fullest

extent possible in accordance with the policies of the Act, and

imposes general and specific requirements on all Federal agencies (83

Stat. 853, 42 U.S.C. 4332).

Five-Point Statement. Section 102(2)(C) required a five-point

Environmental Impact Statement (EIS) on proposed Federal actions

affecting the environment (83 Stat. 853, 42 U.S.C. 4332). NOTE:

Section 102(2)(D), added by Public Law 94-83, August 9, 1975,

describes statement requirements for any major Federal action funded

under a program of grants to states.

CEQ Established. Section 202 established the Council on Environmental

Quality (83 Stat. 854, 42 U.S.C. 4341). The duties and functions of

the Council are outlined under Section 203, as amended by Public Law

94-52, July 3, 1975 (83 Stat. 855, 42 U.S.C. 4343).

B-107. 3 April 1970, Public Law 91-224--Water Quality Improvement Act

of 1970 and Environmental Quality Improvement Act of 1970. CEQ Staff. 

The Office of Environmental Quality, which provides staff for the

Council on Environmental Quality (see Public Law 91-190), was

established by Title II of this Act (84 Stat. 114, 42 U.S.C. 4371).

B-108. 31 December 1970, Public Law 91-604, Clean Air Act Amendments. 

Amended the Clean Air Act of 1963 (PL 88-206).

Control of Pollution from Federal Facilities. Section 118 specifies

that any Federal facility, or activity which may result in the

discharge of air pollutants, shall comply with Federal, state,

interstate, and local requirements respecting control and abatement of

air pollution.

Policy Review. Section 309 calls for the Administrator, Environmental

Protection Agency to review and comment upon the environmental impact

of (1) legislation proposed by any Federal agency (2) newly authorized

Federal projects for construction and any major agency action (84

Stat. 1709, 42 U.S.C. l857h-7).

B-109. 31 December 1970, Public Law 91-611--River and Harbor and

Flood Control Act of 1970.

Navigation Project Maintenance. Section 103 provided for Federal

operation and maintenance of the general navigation features of

small-boat harbor projects authorized during calendar year 1970 (84

Stat. 1819, 33 U.S.C. 426-2nt). Amended by Section 6, Public Law

93-251.

Land Acquisition Compensation Defined. Section 111 approved

compensation for real property acquired above normal high water mark

of navigable waters in connection with any Federal waterway

improvement at the "fair market value" of the land, including the

highest and best use dependent upon access to navigable waters (84

Stat. 1821, 33 U.S.C. 595a).

Small Projects. Section 112 increased the limit on Federal costs for

small navigation and small beach erosion projects from $500,000 to

$1,000,000. The annual authorization limit was also raised in each
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case to $25,000,000 (84 Stat. 1821). NOTE: limits have subsequently

been raised further (most recently by Section 915, Public Law 99-662).

Project Cost Sharing for Charter Fishing Craft. Section 119 provided

that charter fishing craft shall be considered as commercial vessels

for the purpose of determining cost sharing in small-boat navigation

projects (84 Stat. 1822, 33 U.S.C. 577a).

Economic, Social, Environmental Effects. Section 122 provided for

submission and promulgation of guidelines, not later than 1 July 1972,

for considering possible adverse economic, social, and environmental

effects of proposed projects.

Disposal Area Criteria. Section 123 authorized construction,

operation, and maintenance of contained spoil disposal areas for the

Great Lakes area, subject to specific conditions of coordination with

other agencies, local cooperation and applicability with water quality

standards (84 Stat. 1823, 33. U.S.C. ll65a).

Hurricane Protection Cost Sharing. Section 208 authorized

discretionary modifications in Federal participation in cost sharing

for hurricane protection projects (84 Stat. 1829, 33 U.S.C. 426e). 

Section 103 of WRDA 1986, Public Law 99-662, now specifies this cost

sharing.

Planning "Objectives". Section 209 expressed the intent of Congress

that the objectives of enhancing regional economic development, the

quality of the total environment, including its protection and

improvement, the well-being of the people, and the national economic

development are the objectives to be included in Federally financed

water resource projects (84 Stat. 1829, 42 U.S.C. 1962-2).

Completed Project Review. Section 216 authorized review and report to

Congress of the operation of completed projects when found advisable

due to significantly changed physical or economic conditions.

Written Agreement. Section 221 provides that the construction of any

water resources project by the Corps shall not be commenced until each

non-Federal interest has entered into a written agreement to furnish

its required cooperation for the project (84 Stat. 1831, 42 U.S.C.

l962d-5b). Amended 17 November 1988 by Section 912, Public Law

99-662.

Citation Authority. Section 234 provides that persons designated by

the Chief of Engineers shall have authority to issue a citation for

violations of regulations and rules of the Secretary of the Army,

published in the Code of Federal Regulations.

B-110. 2 January 1971, Public Law 91-646--Uniform Relocations

Assistance and Real Property Acquisition Policies Act of 1970. 

Treatment of Displaced Persons. Section 201 established a uniform

policy for the fair and equitable treatment of persons displaced as a

result of Federal and Federally assisted programs in order that such

persons shall not suffer disproportionate injuries as a result of

programs designed for the benefit of the public as a whole (84 Stat.

1895, 42 U.S.C. 462). Displacement Payments. Section 202 outlined the

moving and related expense payment for persons displaced by Federal

programs and projects (84 Stat. 1895, 42 U.S.C. 4622). NOTE: Section

210 of the act made the same benefits available to persons displaced

by programs and projects of state agencies with Federal financial

assistance.

B-111. 23 December 1971, Public Law 92-222--River Basin Monetary

Authorization Act of 1971. Section 4 clarifies that Section 221 of

Public Law 91-611 does not apply to storage for future water supply.

B-112. 10 July 1972, Public Law 92-340--Ports and Waterways Act of

1972. Title I provides the Coast Guard with authority for

establishment of vessel traffic control systems in congested or
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hazardous ports and waterways (other than the Panama Canal) (86 Stat.

424, 33 U.S.C. 1221).

B-113. 11 July 1972, Public Law 92-347--Golden Eagle Passbook and

Special Recreation User Fees. Each Federal agency developing,

administering, or providing specialized sites, facilities, equipment,

or services related to outdoor recreation shall provide for the

collection of special recreation use fees for the use of sites,

facilities, equipment, or services furnished at Federal expense (86

Stat. 459, 16 U.S.C. 460).

B-114. 8 August 1972, Public Law 92-367--National Dam Safety Act. 

Authorized a national program of inspection of "dams" for the purpose

of protecting human life and property. Calls for an inventory of all

dams located in the U.S. and recommendations for a comprehensive

national program of dam inspection and regulation (86 Stat. 506, 33

U.S.C. 467).

Amended by Section 215 of WRDA 1996, Public law 104-303.

B-115. 13 October 1972, Public Law 92-487--Federal Loans to Public

Agencies for Constructing Local Water Supply Works. The Act of July

4, 1955, as amended, relating to Federal loans for the construction of

irrigation distribution systems, is further amended to include the

delivery and distribution of municipal and industrial water as an

authorized purpose of the program. Repayment of loans for municipal

and industrial water shall include interest (86 Stat. 804, 43 U.S.C.

42lc).

B-116. 18 October 1972, Public Law 92-500--The Federal Water

Pollution Control Act Amendments of 1972. National Goal. Section

101 established a national goal of eliminating all pollutant

discharges into U.S. waters by 1985 and an interim goal of making the

waters safe for fish, shellfish, wildlife and people by July 1, 1983

(86 Stat. 816, 33 U.S.C. 1251). 

Reservoir Storage for Streamflow Augmentation. Section 102(b)

provides that in the planning of any Corps reservoir consideration

shall be given to inclusion of storage for regulation of streamflow. 

Such storage is not to be provided as a substitute for adequate

treatment or other methods of controlling waste at the source. The

need for, value of, and the impact of storage for the purpose of water

quality control are determined by the Administrator of the EPA. The

need for and value of storage for regulation of streamflow for other

purposes are to be determined by the Corps. The costs of storage are

to be non-reimbursable if the benefits are widespread or National in

scope. 

National Oil and Hazardous Substances Pollution Contingency Plan. 

Section 311 authorizes the President to prepare and publish a National

Contingency Plan for the removal of oil and hazardous substances and

establishes a revolving fund that is used to pay the costs for

cleaning up oil and hazardous substances discharged into navigable

waters.

The Refuse Act Permit Program. Sections 402 and 403 establish a

permit program in EPA which is to regulate (or prohibit) the discharge

of pollutants into the waters of the United States, to include the

territorial sea and which is to be in accordance with the

EPA-established effluent limitations previously mentioned. Section 402

replaces the Corps Refuse Act Permit Program under the Act of 1899

without repealing the Act. All permits issued under the Corps program

are considered permits under the new EPA program.

Permits for Dredged or Fill Material. Section 404 authorizes a

separate permit program for the disposal of dredged or fill material
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in the Nation's waters, to be administered by the Secretary of the

Army, acting through the Chief of Engineers. Under the program,

permits are to be issued, after notice and opportunity for public

hearings, for disposal of such material at specified sites. These

sites are to be selected in compliance with guidelines developed by

EPA in conjunction with the Secretary of the Army. EPA is authorized

to forbid or restrict the use of specified areas whenever it

determines that disposal of material at a specific site would have an

unacceptable adverse effect on municipal water supplies, shellfish,

and fishery areas, or recreational activities.

Authority to Maintain Navigation. Section 511(a) provides that

nothing in the Act is to be considered as affecting or impairing the

authority of the Secretary of the Army to maintain navigation (86

Stat. 816, 33 U.S.C. 1371). NOTE: See Public Law 95-217, October 27,

1977, for amendments.

B-117. 21 October 1972, Public Law 92-516--Federal Environmental

Pesticide Control Act. This law revises the Federal Insecticide,

Fungicide, and Rodenticide Act. It provides for more complete

regulation of pesticides to include regulation, restrictions on use,

actions within a single state, and strengthened enforcement (86 Stat.

973, 7 U.S.C. 136).

B-118. 23 October 1972, Public Law 92-532--Marine Protection,

Research and Sanctuaries Act of 1972. Bans the unregulated dumping of

materials into the oceans, estuaries and Great Lakes, (86 Stat. 1052,

33 U.S.C. 1401).

Policy Statements. Section 2 states that unregulated ocean dumping is

injurious to man and the environment and must be strictly controlled. 

Prohibited Acts. Section 101 exercises regulatory control, over any

materials which are transported from the United States which would be

dumped in any ocean waters; over any materials which would be dumped

in the territorial sea or the contiguous zone of the United States;

and over any materials transported from any location outside the

United States which would be dumped in ocean waters by any

instrumentality of the United States Government. NOTE: Amended and

restated by Act of March 22, 1974 (Public Law 93-254).

Environmental Protection Agency Permits. Section 102 provides that

the Administrator of the EPA may issue permits for the dumping of

material (not to include dredged material) if he determines that such

dumping would not unreasonably degrade or endanger human health,

welfare or amenities, or the marine environment, ecological systems,

or economic potentialities. The Administrator is permitted to

establish and issue various categories of permits including general

permits (see Section 104), and to designate dump and no-dump sites or

times after consultation with the Secretary of the Army.

Corps of Engineers Permits. Section 103 provides the Secretary of the

Army with permit authority over the transportation of dredged material

for the purpose of dumping in ocean waters. The Secretary may issue

such permits where he determines that such dumping will not

unreasonably degrade or endanger human health, welfare or amenities,

or the marine environment, ecological systems, or economic

potentialities.

Permit Conditions. Section 104 requires that permits granted by

either the Administrator or the Secretary of the Army shall designate

the amount, type and location of the material to be dumped, and the

length of time for the dumping, and, after consultation with the Coast

Guard, provide for any special monitoring and surveillance provisions.

Marine Sanctuaries. Title III permits the Secretary of Commerce,

after appropriate consultation with affected state and Federal

agencies, and public hearings, to designate certain areas of ocean
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waters lying as far seaward as the edge of the outer continental shelf

and areas of the waters of the Great Lakes as marine sanctuaries which

he determines necessary to preserve, restore, such areas for

conservation, recreation, ecology or esthetics. He is permitted,

after consultation with other interested Federal agencies, to issue

regulations controlling activities within these sanctuaries. No

permit for activities within such sanctuaries shall be deemed valid

unless the Secretary of Commerce shall certify that the permitted

activity is consistent with the purpose of Title III and carried out

in accordance with the regulations promulgated by him.

B-119. 27 October 1972, Public Law 92-583--Coastal Zone Management

Act of 1972. National Policy. Section 302 declares a National

interest in the effective management of the coastal zone, that present

planning and regulation of land and water uses is in adequate, and

that primary responsibilty rests with state and local governments with

Federal assistance. (86 Stat. 1280, 16 U.S.C. 1451).

Federal-State Coordination. Section 307 requires all Federal agencies

with activities directly affecting the coastal zone, or with

development projects within that zone, to assure that those activities

or projects are consistent with the approved state program. 

Applicants for Federal licenses shall provide to the agency state

certification that the proposed activity complies with the state's

approved management program. No Federal license or permit shall be

granted by the agency without the state's concurrence or unless the

state has failed to act within six months (amended to three months by

Public Law 95-372) after receiving the applicant's certification. 

NOTE: This section amended by Section 6, Act of July 26, 1976 and

Section 504 of Act of September 18, 1978. Sections 302, 303, 304,

306, 308, 312, 315, 316, and 318 amended by Public Law 96-464.

B-120. 1 August 1973, Public Law 93-81--Collection of Fees for Use of

Certain Federal Outdoor Recreation Facilities. Amends Section 4 of

the Land and Water Conservation Fund Act of 1965 (P.L. 88-578). 

Requires each Federal agency to collect special recreation fees for

the use of sites, facilities, equipment or services furnished at

Federal expense. NOTE: Amended and restated by Section 1 of Public 

Law 93-303. (87 Stat. 178).

B-121. 28 December 1973, Public Law 93-205--Conservation, Protection,

and Propagation of Endangered Species. Repeals the Endangered Species

Conservation Act of 1969. Directs all Federal Departments/Agencies to

carry out programs to conserve endangered and threatened species, in

consultation with the Secretary of the Interior (or Commerce in

appropriate situations), and to preserve the habitat of such species. 

(87 Stat. 884) NOTE: Section 7 of the Endangered Species Act

Amendments of 1978 (Public Law 95-632) authorizes procedures by which

a Federal agency, state governor, or license applicant may apply for

an exemption to the Act.

B-122. 31 December 1973, Public Law 93-234--Flood Disaster Protection

Act of 1973. This law increases limits of coverage authorized under

the national flood insurance program; provides for accelerated

identification of flood risk zones; requires states or local

communities, as a condition of future Federal financial assistance, to

participate in the flood insurance program; requires the purchase of

flood insurance by property owners who are being Federally assisted in

the acquisition/improvement of land in flood hazard areas; extends the

flood insurance program to cover losses from the erosion and

undermining of shorelines by waves or currents (87 Stat. 975). 
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B-123. 7 March 1974, Public Law 93-251--Water Resources Development

Act of 1974. Project Authorization. Section 1 establishes two phase

authorization procedure for major projects.

Maintenance. Section 6 states that the cost of operation and

maintenance of the general navigation features of small boat harbor

projects shall be borne by the United States.

Hold and Save. Section 9 provides that the requirement that

non-Federal interests hold and save the United States free from

damages shall not include damages due to the fault or negligence of

the United States or its contractors.

Project Deauthorization. Section 12 establishes a procedure for

deauthorization of projects that have not received any Congressional

appropriations within 8 years. (Superceded by Section 1001, Public

Law 99-662.)

Public Road Replacement. Section 13 establishes criteria for design

of replacement roads.

Comprehensive Planning Cooperation. Section 22 provides authority for

cooperating with any state in preparation of comprehensive plans for

water resources development, utilization, and conservation. Amended

by Section 221 of WRDA 1996, Public Law 104-303.

Snagging and Clearing Projects. Section 26 raises the project cost

limitation to $250,000 and annual program funding limit to $5 million. 

These limits were raised to $500,000 per project and $7.5 million

annually for the program, 17 November 1986, by Section 915(b), Public

Law 99-662.

Emergency Bank Protection Projects. Section 27 raises the project

cost limitation to $250,000 and program fiscal funding limit to $10

million per year. Project purpose was extended to cover construction,

repair, restoration, and modification of emergency streambank and

shoreline protection works. Eligibility definition was extended to

include churches, hospitals, schools, and similar non-profit public

services. Limitations were further raised to $ 1,000,000 per project

and $ 15 million annually for the program, 12 October 1996, by

Section 219, Public Law 104-303.

Streambank Erosion Control Evaluation and Demonstration Act of 1974. 

Section 32 established a national streambank erosion prevention and

control demonstration program. Authorized conduct of the program for

5 fiscal years with total Federal appropriations not to exceed $25

million. (NOTE: The demonstration program undertaken pursuant to this

provision was completed with a report submitted to Congress in April

1982.)

Local Cash Contributions. Section 40 provides general authority to

permit local interests to make cash contributions in annual payments

as construction proceeds, rather than in a lump sum prior to

initiation of construction.

Shoreline Erosion Control Demonstration Act of 1974. Section 54

authorized a program to develop, demonstrate, and disseminate

information about low cost means to prevent and control shoreline

erosion. Conduct of the program authorized for 5 fiscal years with

total appropriations not to exceed $8 million. Provides for

establishment of a Shoreline Erosion Advisory Panel. (NOTE: the

demonstration program undertaken pursuant to this provision was

essentially completed with a comprehensive report submitted to

Congress in June 1982.)

Technical and Engineering Assistance. Section 55 authorizes technical

and engineering assistance to non-Federal public interests in

developing structural and nonstructural methods of preventing damages

attributable to shore and streambank erosion.

Small Flood Control Projects. Section 61 raised the Federal limit per 
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project from $1 million to $2 million only in areas that have been

designated disaster areas within preceding 5 years. The program

funding limit was increased to $30 million annually. NOTE: Limits

were subsequently revised upward by Section 133, Public Law 94-587,

Section 2, Public Law 97-140. and Section 915(a), Public Law 99-662.

Flood Plain Management. Section 64 increases the Corps FPMS program

appropriation authorization to $15 million annually.

Water Quality Storage. Section 65 permits conversion of water quality

storage in authorized reservoirs to another use when EPA determines

such storage is unnecessary.

Non-structural Measures for Flood Protection. Section 73 requires

that consideration be given to non-structural alternatives for flood

damage prevention or reduction. Where such measures are recommended,

the non-Federal participation was to be comparable to that for

structural protection, but not exceed 20 percent of the project costs. 

Cost sharing requirements were subsequently modified by Section 103,

Public Law 99-662, and Section 202 of WRDA 1996, Public Law 104-303.

Visitor Protection. Section 75 authorizes study of the need for a

means of providing visitor protection services at Corps projects.

Fish and Wildlife Enhancement. Section 77 amends the Federal Water

Project Recreation Act to increase the Federal share of costs for fish

and wildlife enhancement to 75 percent. Cost sharing requirements

were subsequently modified by Section 906, Public Law 99-662.

Interest and Discount Rates. Section 80 directs the interest rate for

discounting future benefits and computing costs be based on Water

Resources Council formula published 24 Dec 1968. It also calls for

study and report by the President on principles and standards,

discount rates, and cost sharing. 

Emergency Water Supplies. Section 82 modified Section 5 of 1941 FCA,

as amended, to authorize providing emergency supplies of clean

drinking water when contaminated supplies are a threat to public

health and welfare of locality. Contamination must result from flood.

Utilization of Regional or Municipal Sewage Treatment Plant. Section

107 authorizes Corps participation in construction cost of regional

sewage treatment plants for treating sewage resulting from the

operation of recreation and other facilities at Corps projects. (88

Stat. 12)

B-124. 22 March 1974, Public Law 93-254--Implementation of the

Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matters. Amends the "Ocean Dumping" Act to make it fully

consonant with the treaty responsibilities of the U.S. under the

Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matters, particularly as to the regulation of U.S. vessels

carrying or dumping foreign source waste (88 Stat. 50).

B-125. 22 May 1974, Public Law 93-288, Disaster Relief Act Amendments

of 1974. Broadens Federal responsibility for disaster assistance,

assigns responsibilities to agencies, and establishes coordination

among the Federal agencies. Establishes criteria for financial and

other aid to needy communities and governmental entities and the forms

of aid available . (Amended by Public Law 100-707).

B-126. 24 May 1974, Public Law 93-291--Preservation of Historical and

Archeological Data. The Secretary of the Interior shall coordinate

all Federal survey and recovery activities authorized under this

expansion of the 1960 Act (Public Law 86-523). The Federal

construction agency may expend up to 1 percent of project funds with

such funds considered non-reimbursable project costs. (88 Stat. 174).
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B-127. 7 June 1974 Public Law 93-303--Recreation Use Fees. Amends

Section 4 of the Land and Water Conservation Fund Act of 1965 (Public

Law 88-578), as amended, to establish less restricted criteria under

which Federal agencies may charge fees for the use of campgrounds

developed and operated at Federal areas under their control. (88 Stat.

192).

B-128. 22 August 1974, Public Law 93-383--Housing and Community

Development Act of 1974. Title I establishes within HUD new community

development program block grants and loans to replace several existing

grant/loan programs. Section 816 amends the National Flood Insurance

Act to provide that any community that has made adequate progress on

the construction of a flood protection system meeting the 100-year

protection standard, as determined by HUD, shall be eligible for flood

insurance at subsidy premium rates if otherwise eligible under the

Act. (88 Stat. 633).

B-129. 21 November 1974, Public Law 93-502--Freedom of Information

Act Amendments. Provided, among other requirements that: the decision

to release or not release records shall be made "within ten days" (as

defined therein). (88 Stat. 1561) NOTE: See Public Law 94-409 to

require that meetings of Government agencies shall be open to the

public.

B-130. 3 January 1975, Public Law 93-627--Deepwater Port Act of 1974. 

Provides authority for Secretary of Transportation to issue a license

for the ownership, construction and operation of a deepwater port.

B-131. 4 January 1975, Public Law 93-643--Federal Aid Highway

Amendments of 1974. Authorizes Department of Transportation to

construct/reconstruct access roads to reservoir created lakes and

established that the road cost sharing would be 70 percent Federal 30

percent local. The law specifically was made applicable to providing

access to Corps "lakes". Amended by Public Law 95-599 to change

Federal share from 70 to 75 percent.

B-132. 24 March 1976, Public Law 94-241. Approves and sets forth the

text of "Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America."

B-133. 5 May 1976, Public Law 94-280--Federal Aid Highway Act of

1976. Section 132 amends Chapter I of Title 23, U.S.C. 156, to

authorize construction of a public highway or bridge across a Federal

public works project where costs and requirements have changed

substantially. A National Transportation Policy Study Commission is

established by Section 154. (90 Stat. 425).

B-134. 26 July 1976, Public Law 94-370--Coastal Zone Management Act

Amendments of 1976. Grants. Sections 4 and 5expanded the

requirements for and types of work accomplished under the management

program development (Section 305) and administrative (Section 306)

grants.

Coastal Energy Impact Program. Section 7directs the Secretary of

Commerce to administer and coordinate a coastal energy impact program

to assist coastal states in their planning and management of energy

developments in their coastal waters.

Interstate Coordination. Section 8encourages the coastal states to

coordinate with each other and to develop joint plans for the sake of

uniformity. It also gives Congressional consent to agreements and

compacts developed between two or more states.
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National Shellfish Safety Program. Section 16directs the Secretary of

Commerce to undertake a comprehensive review of the molluscan

shellfish industry and promulgation of regulations for the national

shellfish safety program by the Secretary of Health, Education, and

Welfare. (90 Stat. 1013-1033).

B-135. 20 October 1976, Public Law 94-565--Entitlement Lands. This

act provides for payments to local governments by the Secretary of the

Interior based on the amount of entitlement lands within the local

boundaries. Entitlement lands include reservoir areas of water

resource projects.

B-136. 22 October 1976, Public Law 94-587--Water Resources

Development Act of 1976. Phase I Studies. Section 101(c) authorizes, upon transmittal of the

Chief's recommendation to the Secretary of the Army, the Chief of

Engineers to begin the Phase I design memorandum on a project if the

Chief finds and transmits to the appropriate Committees of the House

and Senate that the project is without substantial controversy and

justifies further investigation. (90 Stat. 2917-2948).

Law Enforcement. Section 120 authorizes the Corps to contract with

states or their subdivisions to provide for increased law enforcement

during periods of peak visitation.

Administrative Authority. Section 131 raises the limit on projects

authorzed under Section 201 of Flood Control Act of 1965 from

$10,000,000 to $15,000,000. 

Continuing Authorities. Section 133 raised the Federal monetary limit

for construction of an individual navigation project authorized under

Section 107 of the River and Harbor Act of 1960 from $1,000,000 to

$2,000,000. For small flood control projects authorized under Section

205 of the Flood Control Act of 1948 it raised the basic limit for an

individual project from $1,000,000 to $2,000,000 and for projects

within a major disaster area it raised the limit from $2,000,000 to

$3,000,000. Limits for Section 107 projects were subsequently raised

by Section 915(d), Public Law 99-662, and for Section 205 projects by

Section 2 of Public Law 97-140 and Section 915(a), Public Law 99-662.

Regional Benefits. Section 140 authorizes the inclusion of regional

economic benefits in the economic analysis of any authorized

interstate project which has been partially constructed or is to be

constructed at the time of enactment (33 U.S.C. 547a).

Sand Fill. Section 145 authorized the placement of sand obtained from

dredging operations on adjacent beaches if requested by the interested

state government and in the public interest--with the increased costs

paid by local interests. Amended by Section 933, Public Law 99-662,

to allow for Federal funding of 50 percent of the increased costs.

Disposal Areas. Section 148 directs the Corps to utilize those

management practices which will extend the life of dredged material

disposal areas thus keeping the need for new sites to a minimum (33

U.S.C. 4l9a).

Wetlands. Section 150 authorizes the Corps to plan and establish new

wetlands utilizing dredged material from any water resources

development project.

Permits. Section 154 removes Section 10 permit requirement on wharves

and piers in interstate bodies of water which are considered to be

navigable based on historical data of interstate commerce.

Periodic Nourishment. Section 156 authorizes the Corps to extend

Federal aid in periodic beach nourishment up to 15 years from date of

initiation of construction. Amended by Section 934, Public Law

99-662, to allow for extension of up to 50 years.
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Hydroelectric Power. Section 167 authorizes the Chief of Engineers to

study efficient methods of using hydroelectric power resources at

Corps' water resource development projects.

Comprehensive Planning Cooperation. Section 168: Increases the

authorized funding in Section 22 of WRDA of 1974 from $2,000,000 to

$4,000,000.

Drift Removal. Section 202 establishes the drift and debris removal

program. The Corps may undertake a project costing less than $400,000

without Congressional approval. Cost sharing is 2/3 Federal and 1/3

non-Federal. (90 Stat. 2917-2948).

Alaska Hydropower Fund. Section 203 establishes the Alaska

Hydroelectric Power Fund (initial sum deposited $25,000,000) for use

by the Secretary of the Army to study and develop hydropower

facilities in Alaska.

B-137. 20 June 1977, Public Law 95-51--Disaster Relief Act of 1974

Appropriations. Amends Section 5 of the 1941 FCA, as amended, to 

authorize the Secretary of the Army to construct wells and transport

water in drought areas. (91 Stat. 233-234).

B-138. 3 August 1977, Public Law 95-87--Surface Mining Control and

Reclamation Act of 1977. Provides for the cooperation between the

Secretary of the Interior and the states with respect to the

regulation of surface coal mining operations, and the acquisition and

reclamation of abandoned mines.

Establishment of Standards. Section 515 provides for the Secretary of

the Interior with concurrence of the Chief of Engineers to establish

standards and criteria regarding new and existing coal mine waste

piles when used as dams or embankments. (91 Stat. 445-532).

Other Federal Agency Assistance. Section 702allows the Secretary to

obtain assistance from other Federal agencies.

B-139. 12 October 1977, Public Law 95-128. 

Title VII: Extends the time and fiscal constraints of the National

Flood Insurance Program. In addition; procedures are established for

the purchase and/or designation of flood prone properties. (91 Stat.

1111-1150).

B-140. 27 October 1977, Public Law 95-217--Clean Water Act of 1977. 

Amends Federal Water Pollution Control Act and extends the

appropriations authorization.

Written Agreements. Section 51 requires EPA to enter into written

agreements with Secretaries of Agriculture, Army, and Interior to

provide maximum utilization of the laws and programs to maintain water

quality. 

Federal Compliance. Section 60 provides for Federal compliance with

all Federal, state, interstate, and local requirements, administrative

authority, and process and sanctions in the same manner and extent as

other entities.

Processing of Permits. Section 67 provides for the processing of

permits for dredged or fill material through the Secretary of the Army

acting through the Chief of Engineers and defines requirements to be

met in the construction of Federal projects. (91 Stat. 1566).

B-141. 22 October 1977, Public Law 95-220--Federal Program

Information Act. Authorizes the preparation and publishing of the

catalog of Federal Assistance Programs. (91 Stat. 1617).

B-142. 26 April 1978, Public Law 95-269. Amends Acts of 11 August 
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1888 and 2 March 1919. Provides conditions under which dredging work

is performed by private interest and the Federal dredge fleet. 

Authorizes a technologically modern minimum Federal dredging fleet.

(91 Stat. 218-219).

B-143. Public Law 95-341--American Indian Religious Freedom Act.

B-144. 18 September 1978, Public Law 95-372--Outer Continental Shelf

Lands Act Amendments of 1978. Establishes policy for the management

of oil and natural gas in the Outer Continental Shelf and to protect

the marine and coastal environment, in part, by creating an oil spill

liability fund. Section 504 amends Sec. 307 of the Coastal Zone

Management Act. The revised section requires that a state provide to

the Secretary of Commerce a status report if it has not concurred or

objected to a proposed activity within 3 months after having received

the applicants certification. (92 Stat. 629).

B-145. 19 October 1978, Public Law 95-474--Port and Tanker Safety Act

of 1978. Vests responsibility for establishment of fairways in the

Coast Guard.

B-146. 21 October 1978, Public Law 95-502--Internal Revenue Code of

1954, Amendment. Fuel Tax. Section 202 amends the Internal Revenue

Code (new Sec. 4042 added) to impose a tax on fuel used by vessels in

commercial waterway transportation. Deep-draft ocean-going vessels

and passenger vessels, among others, are exempted.

Inland Waterways Trust Fund. Section 203 establishes an Inland

Waterways Trust Fund (IWTF) for revenue received from the tax on fuel.

Availability of Funds in IWTF. Section 204 provides that amounts in

the Trust Fund shall be available, as provided by appropriation Acts,

for construction and rehabilitation for navigation on inland and

intracoastal waterways.

Study. Section 205 directs the Secretaries of the Departments of

Transportation and Commerce to study inland waterway user taxes and

charges in consultation with other agencies.

Relevant Waterways. Section 206 lists inland and intracoastal

waterways relevant to Section 4042 of the Internal Revenue Code and

the Act. (92 Stat. 1693-1703). (Amended by Section 1405, Public Law

99-662.)

B-147. Public Law 95-563--Contracts Dispute Act of 1978.

B-148. 10 November 1978, Public Law 95-632--Endangered Species Act

Amendments of 1978. Amends the 1973 Act (Public Law 93-205) to

establish an Endangered Species Interagency Committee to review

proposed actions to determine whether exemptions from certain

requirements of the Act should be granted. Prescribes a consultation

process between Federal agencies and the Secretary of the Interior,

Secretary of Commerce, or Secretary of Agriculture, as appropriate,

for carrying out programs for the conservation of endangered and

threatened species. Directs agencies to conduct a biological

assessment to identify endangered or threatened species which may be

present. (92 Stat. 3752).

B-149. 31 October 1979, Public Law 96-95--Archaeological Resources

Protection Act of 1979. Protects archoeological resources and sites

which are on public lands and Indian lands, and fosters increased

cooperation and exchange of information between governmental

authorities, the professional archaeological community, and private

individuals. Establishes requirements for issuance of permits by the

Federal land managers to excavate or remove any archaeological
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30 Jul 99

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resource located on public lands or Indian lands. (93 Stat. 721, 16

U.S.C. 470ac. et seq.)

B-150. 28 December 1979, Public Law 96-159--Endangered Species Act of

1973. Expanded the Act to protect endangered plants, require the

Secretary of Interior--when proposing land as critical habitat--to

publish a summary of the proposal and a map in the local newspapers

and to require Federal agencies to insure their projects "are not

likely" to jeopardize an endangered species. It also authorized all

those seeking exemptions from the Act to get permanent exemptions for

a project unless a biological study indicates the project would result

in the extinction of a species. (93 Stat. 1225)

B-151. 11 December 1980, Public Law 96-511--Paperwork Reduction Act

of 1980.

B-152. 8 August 1980, Public Law 96-324--High Seas and Inland Waters

Demarcation Lines. Amends Section 2 of the Act of February 19, 1895

(28 Stat. 672) to direct the Coast Guard to establish appropriate

identifiable demarcation lines dividing the high seas from harbors,

river and other inland waters of the United States for navigation and

other purposes. (94 Stat. 1020)

B-153. 29 September 1980, Public Law 96-366--Fish and Wildlife

Conservation Act of 1980. Provides funds to states to conduct

inventories and conservation plans for conservation of non-game

wildlife. Also encourages Federal departments and agencies to use

their statutory and administrative authority to conserve and promote

conservation in accordance with this act. (94 Stat. 1322, 16 U.S.C.

2901 et seq.) 

B-154. 17 October 1980, Public Law 96-464--Coastal Zone Management

Improvement Act of 1980. Amends the Coastal Zone Management Act of

1972 (16 U.S.C. 1450 et. seq.) to incorporate numerous minor changes. 

A new Section, lO6A, provides for preservation of specific areas of

recreational or ecological values, and for there development of urban

waterfronts and ports. (94 Stat. 2060)

B-155. 21 October 1980, Public Law 96-480--Stevenson-Wydler

Technology Innovation Act of 1980.

B-156. 11 December 1980, Public Law 96-510--Comprehensive

Environmental Response and Liability Act (CERCLA) of 1980.

B-157. 12 December 1980, Public Law 96-515--National Historic

Preservation Act (Amendment of 1980). Amends the National Historic

Preservation Act of 1966 and authorizes Secretary of Interior to

expand and maintain a National Register of Historic Places. Within

one year after the date of enactment the Secretary shall establish in

consultation with the Secretary of Defense and other agencies,

standards for the preservation of historic properties in Federal

ownership or control. (94 Stat. 2987)

B-158. 24 December 1980, Public Law 96-597--Appropriations Act, U.S.

Insular Areas. Section 605 made the provisions of Section 22, Public

Law 93-251 (Assistance to States), applicable to Guam, American Samoa,

the Virgin Islands, the Northern Marianas, and the Trust Territory of

the Pacific Islands.
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B-159. 29 December 1981, Public Law 97-140--Water Supply Storage in

Benbrook Lake, etc. Small Flood Control Projects. Section 2 raises

the limit for a project (at a single location) authorized under

Section 205 of the Flood Control Act of 1948 from $2,000,000 (or

$3,000,000 for projects in declared disaster areas) to $4,000,000. 

The limit was raised further by Section 915(a), Public Law 99-662.

Removal of Private-Use Facilities. Section 6 imposes a moratorium

through 30 December 1989 on enforced removal of certain private-use

facilities from any Corps reservoir or lake project. Subsequently, by

Section 1134, Public Law 99-662, the moratorium was extended

indefinitely.

B-160. 12 October 1982, Public Law 97-293--Reclamation Reform Act of

1982. Section 212 makes clear that the provisions of Federal

reclamation law are not applicable to lands which receive benefits

from water resources projects constructed by the Corps of Engineers,

except in the limited circumstances specified in this section.

B-161. 13 October 1982, Public Law 97-304--Endangered Species Act

Amendments of 1982. Further amends the 1973 Act (Public Law 93-205)

to streamline the listing and delisting process for species and

critical habitat designations. Directs the Secretary of the Interior

to make determinations regarding species or critical habitats solely

on the basis of the best scientific and commercial data available. 

Defines the period of consultation required between the Secretary of

the Interior, another Federal agency and any permit or license

applicant (including those for exemptions). Prescribes conditions for

the permitted taking of endangered species and the establishment of

experimental populations.

B-162. 18 October 1982, Public Law 97-348--Coastal Barrier Resources

Act. Establishes policy that coastal barriers and their associated

inlets, waterways, and wetlands resources are to be protected by

restricting Federal expenditures which have the effect of encouraging

development of coastal barriers. The Act provides for a Coastal

Barrier Resources System (the extent of which is defined by a set of

maps approved by Congress dated 30 September 1982) which identifies

undeveloped coastal barriers within which Federal expenditures

(including expenditures for flood insurance, roads, bridges, shoreline

structures) may not be made. There are some specific exceptions to

the expenditure prohibition, including navigation and research works. 

(16 USC 3501)

B-163. 30 July 1983, Public Law 98-63--Supplemental Appropriations

Act of 1983. Aquatic Plant Control. Increased the limitation on

annual expenditures by the Corps for the program to $10 million.

Volunteers. Authorizes the Corps to accept the services of volunteers

as a means of carrying out Corps activities.

Assault on Corps Employees. Makes it a Federal offense to assault or

murder a Corps employee; sets penalties.

B-164. 27 March 1984, Public Law 98-242--Water Resources Research Act

of 1984. Authorizes an ongoing program of water resources research

through the Secretary of the Interior, including the establishment of

one water resources research and technology institute in each state

and monetary grants to these institutes and other qualified

educational institutions, private foundations, private firms,

individuals, and agencies of local or state government for research

concerning any aspect of a water resource-related problem the

Secretary deems to be of national interest.
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B-165. 19 October 1984, Public Law 98-498--Marine Sanctuaries

Amendments of 1984. Provides amendments to Title III, National Marine

Sanctuaries, of the Marine Protection, Research, and Sanctuaries Act

of 1972. Includes in Title II, Marine Safety, the Maritime Safety Act

of 1984 which specifies vessel inspection and reporting requirements.

B-166. 19 October 1984, Public Law 98-501--Public Works Improvement

Act of 1984 (Title I) and Federal Capital Investment Program

Information Act of 1984 (Title II). Established a National Council on

Public Works Impovement to prepare three annual reports on the state

of the nation's infrastructure, including publically-owned water

resources projects, and requires the President's budget separately

identify and summarize the capital investment expenditures of the

U.S., including expenditures on water resources projects.

B-167. 23 December 1985, Public Law 99-198--Food Security Act of

1985. Title XII, Subtitles B and C, provides that persons who produce

an agricultural commodity on highly erodible lands or newly converted

wetlands shall be declared ineligible for certain benefits provided by

the U.S. Department of Agriculture, i.e., commodity price support or

production adjustment payments, farm storage facility loans, disaster

payments, payments for storage of Commodity Credit Corporation grain,

Federal crop insurance, and farm loans administered by the Farmers

Home Administration. ("Swampbuster Act")

B-168. 27 August 1986, Public Law 99-402--Federal Lands Cleanup Act

of 1985. Provides for a program of cleanup and maintenance of Federal

lands and designates the first Saturday after Labor Day of each year

as "Federal Lands Cleanup Day." Requires each Federal land management

agency, including the Corps, to organize, coordinate, and participate

with citizen volunteers and state and local agencies in cleanup and

maintenance of Federal public lands, recreation areas, and waterways

within the jurisdiction of such agency.

B-169. 17 October 1986, Public Law 99-499--The Emergency Planning and

Community Right to Know Act of 1986.

B-170. 20 October 1986, Public Law 99-502--Federal Technology

Transfer Act of 1986. This Act authorizes joint efforts with industry

through Cooperative Research and Development Agreements (CRDAs) and

Licensing Agreements (LAs). A Corps laboratory commander is

authorized to enter into CRDAs with interested parties for performing

collaborative research and development leading to commercially-viable

products or systems, and to enter into LAs for Government-owned

inventions or technology that could be commercially exploitable.

B-171. 17 November 1986, Public Law 99-662--Water Resources

Development Act of 1986. Project Cost Sharing. Section 101

establishes new requirements for non-Federal interests sharing of

costs for Harbor construction and maintenance. Section 103

establishes new cost sharing requirements for Flood Control and Other

Purposes. (See Chapter 6 of this EP) (Amended by Sections 201 and

202, Public Law 104-303)

Credit for Non-Federal Flood Control Works. Section 104 provides that

the non-Federal costs for certain compatible flood control works,

accomplished by non-Federal interests prior to Congressional

authorization of a Federal flood contol project, may be credited

against the non-Federal share of costs for the Federal project when it

becomes authorized.

Study Cost Sharing. Section 105 establishes a requirement that, for

Corps feasibility studies, appropriate non-Federal interests
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contribute 50 percent of the study costs.

Non-Federal Feasibility Studies. Section 203 provides that

non-Federal interests may undertake navigation studies and submit them

to the Secretary of the Army for transmittal to Congress.

Non-Federal Project Construction. Section 204 provides that

non-Federal interests may contract with the Corps for accomplishment

of navigation improvement studies and, in accordance with such

studies, may carry out the improvements. Under certain conditions,

their costs may ultimately be reimbursed by the United States.

Non-Federal Port Dues. Section 208 allows non-Federal interests to

levy tonnage duties or fees on vessels using improved harbors, to

finance the non-Federal share of project improvements.

Grants to Non-Federal Interests. Section 212 authorizes grants to a

non- Federal interest operating a harbor project, for provision of

emergency response services.

Inland Waterways. Section 302 establishes the Inland Waterways Users

Board.

Flood Plain Management. Section 402 requires, as a pre-condition for

a local protection project, that non-Federal interests must agree to

participate in and comply with applicable Federal flood plain

management and flood insurance programs. (Amended by Section 202,

Public Law 104-303)

Ground Water Damage. Section 403 includes in the definition of flood

control "improvements for protection from groundwater-induced

damages."

Technical Assistance. Section 703 authorizes technical and

engineering assistance to local public agencies in developing plans

for rehabilitating former industrial sites and facilities for use as

hydroelectric facilities. Section 942 authorizes assistance in

developing plans for snagging and clearing navigable streams and

tributaries, and for nonstructural renovation. Under both programs,

the non-Federal share of Corps costs shall be 50 percent.

Fish Habitat Modification Projects. Section 704(b) authorizes the

construction of projects for development of beneficial fish habitat

not specifically authorized by Congress. A limit was not placed on

the Federal expenditures per project; however, a $5 million limit on

total Federal expenditures for the program was established.

Study Deauthorization. Section 710 establishes a procedure for

deauthorization of studies that have not received any Congressional

appropriations for 5 years.

Project Cost Increase Limitations. Section 902 provides that,

excluding the impacts of general price increases and any project

additions otherwise authorized, total project costs for any project

authorized in Public Law 99-662 may not exceed the authorization

estimate by more than 20 percent. (Amended by Section 3(b), Public

Law 100-676)

Uneconomic Increments of Projects. Section 903(c) indicates that

uneconomic increments may, at full non-Federal expense, be added to an

otherwise economically justified project.

Planning. Sections 904 and 905 summarize matters which should be

addressed in planning studies and contained in the resultant

feasibility report. Included is a requirement for description of a

nonstructural alternative to the to the recommended plan (if that is

not a nonstructural plan). Section 905(b) establishes that before

initiating a feasibility study a reconnaissance is first to be

performed at full Federal expense.

Fish and Wildlife Mitigation. Section 906 provides that, for new

projects, needed mitigation measures shall be undertaken before or

concurrently with project construction. It provides general authority

to undertake mitigation measures for projects, whether completed,

underway or unstarted, including acquisition of any needed related
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lands (excluding condemnation in connection with projects already

completed or well underway). It provides that mitigation costs shall

be allocated to the project purposes and cost shared accordingly. It

requires that feasibility reports contain a specific plan to mitigate

fish and wildlife losses, unless a determination is made that there

would be negligible adverse impact. Such plans shall provide that

impacts on bottomland hardwood forests are mitigated in-kind to the

extent possible.

Fish and Wildlife Enhancement. Section 906 also provides that for any

project measures recommended to enhance fish and wildlife, costs will

be entirely Federal when the benefits have a national character and,

where they do not, non-Federal interests shall reimburse 25 percent of

the costs. The non-Federal share of operations, maintenance and

rehabilitation costs will, in all cases, be 25 percent.

Environmental Measures Justification. Section 907 provides that the

benefits from environmental measures included in a project (including

measures for fish and wildlife enhancement) shall be deemed to be at

least equal to the related project costs.

Mitigation Fund. Section 908 establishes an Environmental Protection

and Mitigation Fund from which the undertaking of authorized fish and

wildlife mitigation measures may be funded in advance of project

appropriations.

Continued Planning and Engineering (CP&E). Authorizes the Corps to

proceed with CP&E after the Chief transmits his feasibility study

recommendations to the Secretary favoring Congressional authorization

of a project.

Section 221 Agreements. Section 912 amends Section 221 of the Flood

Control Act of 1970 with respect to written agreements for local

cooperation and has added provisions designed to enforce local

fulfillment of the agreements.

Reimbursement for Non-Federal Expenditures. Section 913 modifies

Section 215 of the Flood Control Act of 1968 to increase the limit of

Federal reimbursement costs per project--for non-Federal construction

work on an authorized project--to $3 million.

Urban Flood Control. Section 914 provides that, where the Federal

costs for improvement measures would be less than $3 million, Corps

feasibility reports may consider such measures regardless of drainage

area and frequency of flooding.

Continuing Authorities. Section 915 raises the Federal monetary limit

for construction of an individual flood control project authorized

under Section 205 of the 1968 FCA, as amended, from $4 to $5 million;

for a flood control clearing and snagging project under Section 2 of

the 1937 FCA, as amended, ("Section 208 project"), from $250,000 to

$500,000; for emergency bank protection authorized under Section 14 of

the 1946 FCA, as amended, from $250,000 to $500,000; for a navigation

project authorized under Section 107 of the 1960 R&H Act, as amended,

from $2 to $4 million; for a beach erosion control project authorized

under Section 103 of the 1962 R&H Act, as amended, from $1 to $2

million; and for mitigation of shore damages due to a navigation

project, pursuant to Section 111 of the 1968 R&H Act, from $1 to $2

million. Section 915 also authorizes use of all of the foregoing

authorities in the Trust Territory of the Pacific Islands. For

navigation clearing and snagging projects authorized under Section 3

of the 1945 R&H Act, the annual program limitation was raised from

$300,000 to $1 million.

Emergency and Disaster Authority. Emergency Water Supplies. Section

917 amends Section 5 of the 1941 FCA, as amended, by deleting the

term “drinking” in the provision of emergency supplies of clean water

to meet critical needs in contaminated source situations.
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Disaster Recovery Efforts. Section 917 further amends Section 5 of

the 1941 FCA, as amended, to authorize the Chief of Engineers, in an

area where the Corps is already performing flood emergency work, for

a 10-day period following a Governor's request for a disaster or

emergency declaration under the Disaster Relief Act of 1974, to

perform any emergency work essential for the preservation of life and

property.

Waterborne Petroleum Product Information Release. Section 919 directs

the Secretary to disclose information about petroleum products

transported by vessel and reported to the Waterborne Commerce

Statistics Center to any State taxing agency upon written request for

purposes of administration of State tax laws when State law forbids

disclosure to the public.

Waterborne Commerce Non-Compliance: Civil and Criminal Penalties. Section 919 amends 33 U.S.C. 555 by increasing the fine for noncompliance from $100 to $5,000 and added a civil penalty of up to

$2,500 per violation. 

Acquisition of Recreation Lands. Section 926 provides that lands for

project recreation shall be acquired concurrently with land for other

project purposes. Also, it authorizes aquisition of lands, as part of

a Corps project, for public park and recreation uses.

Interim Use of Water Supply Storage for Irrigation. Section 931

authorizes interim allocation of future water supply storage for

irrigation purposes. 

Water Supply Act Amendments. Section 932 eliminates the 10-year

interest free period for future water supply; modifies the interest

rate formula; limits the repayment period to 30 years; and requires

allocated annual operation, maintenance and replacement costs to be

reimbursed annually. (Amendments apply only to Corps projects.)

Sand Fill. Section 933 modifies Section 145 of Public Law 94-587 to

authorize 50 percent Federal cost sharing of the extra costs for using

dredged sand from Federal navigation improvements and maintenance

efforts for beach nourishment.

Periodic Nourishment. Section 934 modifies Section 156 of Public Law

94-587 to authorize the Corps to extend aid in periodic nourishment up

to 50 years from the date of initiation of project construction.

Removal of Wrecks. Section 939 amends Section 15 of the 1899 R&H Act

to require owners to reimburse the Corps for costs of removal in

excess of salvage value.

Mitigation of Shore Damage. Section 940 amends Section 111 of Public

Law 90-483 to allow implementation of nonstructural measures to

mitigate shore damages resulting from Federal navigation works; to

require local interests to operate and maintain Section 111 measures;

and to require cost sharing of implementation costs in the same

proportion as for the works causing the shore damage.

Aquatic Plant Control. Section 941 increased the limitation on annual

expenditures by the Corps for the program to $12 million.

Historical Properties. Section 943 authorizes restoration,

preservation and maintenance of historic properties on Corps lands if

they are entered in the National Register of Historic Places.

Dredge Disposal. Section 945 sets limitations on permissable disposal

of Corps dredging vessels.

Use of FmHA Funds. Section 950 provides that Farmers Home

Administration funds can be used to pay the non-Federal share of any

other Federal grant-in-aid program.

Project Deauthorization. Section 1001(a) provides that any project

authorized for construction in this Act shall be deauthorized as of

the fifth anniversary of its enactment if funds have not been

allocated for construction prior to that date. Section 1001(b)

establishes a new procedure, replacing the procedure established by

Section 12 of Public Law 93-251, for deauthorization of previously
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authorized projects or separable elements for which no funds have been

obligated for a period of 10 fiscal years. (Amended by Section 52,

Public Law 100-676 and Section 228, Public Law 104-303)

Control of Ice. Section 1101 authorizes a limited program for ice

research and technical assistance.

California Debris Commission. Section 1106 abolishes this Commission,

first established in 1893.

Private Use Facilities. Section 1134 extends, indefinitely, beyond

December 31, 1989, prohibition against enforced removal of certain

private-use facilities from Corps lands.

Project Modifications to Improve Environment. Section 1135 authorizes

review of the operation of completed water resouces projects to

determine need for modifications for the purpose of improving

environmental quality.

Cost Sharing, Territories. Section 1156 authorizes waiver of

non-Federal cost sharing requirements up to $200,000 for all studies

and projects in American Samoa, Guam, the Northern Mariana Islands,

the Virgin Islands, and the Trust Territory of the Virgin Islands.

Dam Safety. Section 1201 authorizes Corps grants to states that

establish and maintain an approved dam safety program, and establishes

a National Dam Safety Review Board. Section 1203 requires non-Federal

interests which are participating in reimbursable purposes of a

project to share in the costs of modifying Corps dams and related

facilities resulting from changes deemed necessary for safety

purposes. (Amended by Section 215, Public Law 103-404)

Harbor Maintenance Tax. Section 1402 amends the Internal Revenue Code

of 1954 to provide for imposition of a tax on any port use.

Harbor Maintenance Trust Fund. Section 1403 amends the Internal

Revenue Code of 1954 to provide for establishing a "Harbor Maintenance

Trust Fund" in the United States Treasury.

Inland Waterways Tax. Section 1404 amends the Internal Revenue Code

of 1954 to modify the schedule for taxes imposed on fuels used in

commercial transportation on inland waterways.

Inland Waterways Trust Fund. Section 1405 amends the Internal Revenue

Code of 1954 to establish the "Inland Waterways Trust Fund" in the

United States Treasury.

B-172. 4 February 1987, Public Law 100-4--Water Quality Act of 1987. 

Section 407 requires the Administrator of EPA and the Secretary of the

Army to enter into an agreement regarding coordination of permitting

for log transfer facilities to designate a lead agency and to process

permits required under Sections 402 and 404 of the Federal Water

Pollution Control Act, where both sections apply, for discharges

associated with the construction and operation of log transfer

facilities.

B-173. 2 April 1987, Public Law 100-17--Uniform Relocation Act

Amendments of 1987 (Title IV). Section 403 provides for the head of a

Federal agency to discharge his/her responsibility under the Act

(Public Law 91-646) by accepting certification by a state agency that

it will carry out such responsibility, if the head of the U.S.

Department of Transportation (i.e., lead agency) determines that such

responsibility when carried out in accordance with state laws will

accomplish the purpose of the Act.

B-174. 27 May 1987, Public Law 100-45--Farm Disaster Assistance Act

Of 1987. Section 9 amends Section 5 of the 1941 FCA, as amended, by

requiring the Corps to consider benefits to residential, commercial

and agricultural establishments in preparing a benefit-cost analysis

for any emergency project.
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B-175. 1 October 1988, Public Law 100-460--Rural Development,

Agriculture, and Related Agencies Appropriation Act, 1989. Section

632 of this Act provides: "Hereafter, none of the funds appropriated

in this or any other Act shall be used to alter the method of

computing normalized prices for agricultural commodities for use by

any Federal agency in evaluating water resources development projects

to be undertaken in whole or in part with Federal funds that was in

effect as of January 1, 1986." As of the date cited, the U.S.

Department of Agriculture (USDA) estimated the normalized prices by

using a computer model of the U.S. agriculture sector. (The model is

designed to "normalize" prices, i.e., remove any short run seasonal or

cyclical variation.) The prices furnished by USDA are used by the

Corps and other Federal agencies to evaluate the benefits of projects

affecting agriculture.

B-176. 17 November 1988, Public Law 100-676--Water Resources

Development Act of 1988. Project Cost Increase Limitations. Section

3(b) extends the provisions of Section 902 of Public Law 99-662 to

projects authorized in this and subsequent Acts.

Reservoir Operations. Section 5 requires that there be opportunity

for public review and comment before a change is made in reservoir

operation involving reallocation of storage or significantly affecting

any project purpose.

Collaborative Research and Development. Section 7 authorizes use of

Corps labs and research centers for cost shared R&D with non-Federal

entities.

Reimbursement for Non-Federal Expenditures. Section 12 further amends

Section 215 of the Flood Control Act of 1968 to provide that the limit

of Federal reimbursement costs per project may be 1 percent of total

project costs if that would be greater than $3 million. For any such

project, reimbursement in any one year may not exceed $5 million.

Utility Relocations. Section 13 amends Section 101(a) of Public Law

99-662 to include, retroactively, sponsor costs for related utility

relocations as part of sponsor LERRD costs creditable against their

required post-construction repayment (over a period not exceeding 30

years) of 10 percent of total project costs.

Flood Plain Management. Section 14 amends Section 402 of Public Law

99-662 to extend Federal flood insurance and flood plain management

programs compliance requirements to sponsors of hurricane and storm

damage reduction projects.

Contained Disposal Areas, Great Lakes. Section 24 provides that such

facilities, developed pursuant to Section 123 of the River and Harbor

Act of 1970, may continue to be used by the Corps until filled or no

longer needed.

Project Deauthorization. Section 52 extends the provisions of Section

1001(a) of Public Law 99-662 to projects authorized in this and

subsequent Acts.

B-177. 23 November 1988, Public Law 100-707--Robert T. Stafford

Disaster Relief and Emergency Assistance Act. A major amendment to

the Disaster Relief Act Amendments of 1974, Public Law 93-288. 

Authorized the Federal Government to assist state and local

governments in disaster preparedness, response, and recovery efforts. 

Provided for the appointment of a Federal Coordinating Officer (FCO)

to coordinate the overall delivery of Federal assistance. Federal

departments and agencies will provide response assistance directly to

the state, under the FCO's direction.
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B-178. 13 December 1989, Public Law 101-233--North American Wetland

Conservation Act. Directs the conservation of North American wetland

ecosystems for waterfowl and the other migratory birds and fish and

wildlife that depend upon such habitats. Section 9 requires agencies

to manage their lands for wetland/waterfowl purposes to extent

consistent with missions.

B-179. 18 August 1990, Public Law 101-380--Oil Pollution Prevention,

Response, Liability, and Compensation Act of 1989. Section 4112

requires the Secretary of the Army to conduct a study and report in

one year on the feasibility of modifying dredges and using them to

remove spills of oil and other hazardous substances.

B-180. 5 November 1990, Public Law 101-508--Omnibus Budget

Reconciliation Act of 1990. TITLE VI, Subtitle C, reauthorizes the

Coastal Zone Management Act and requires Federal activities within or

outside the coastal zone, which may affect the natural resources, land

uses, or water uses in the coastal zone, to be consistent to the

maximum extent practicable with the enforceable policies of a Stateapproved management plan. TITLE XI, Subtitle B, Section 11214,

increases the Harbor Maintenance User Fee from 0.04 percent to 0.125

percent effective 1 January 1991.

B-181. 16 November 1990, Public Law 101-591--Coastal Barrier

Improvement Act of 1990. Reauthorizes the Coastal Barrier Resources

Act and expands the size of the Coastal Barrier System. Prohibits the

use of Federal assistance to develop lands within the system; however,

Federal assistance can be used for certain specified activities,

including maintenance or construction of improvements of existing

Federal navigation channels.

B-182. 16 November 1990, Public Law 101-595--Federal Maritime

Commission Authorization Act of 1990. Section 307 exempts dredges

from Federal pilotage requirements, unless the Secretary of

Transportation determines that a navigation hazard would be created.

B-183. 16 November 1990, Public Law 101-596--Great Lakes Critical

Programs Act of 1990. Title I (Great Lakes) sets schedules and

deadlines for the EPA Administrator to accomplish a number of tasks

including completion of demonstration projects for achieving a

specified numerical standard for contaminated sediments at certain

lake sites. Section 102 requires the Administrator to publish

information concerning the public health and environmental

consequences of contaminants in Great Lakes sediment including

specific numerical limits on bioaccumulation of toxins. Section 104

directs the Administrator, in consultation with the Secretary of the

Army, to develop and implement within one year management plans for

Great Lakes confined disposal facilities.

B-184. 16 November 1990, Public Law 101-601--Native American Grave

Protection and Repatriation Act. Requires that Federal agencies

inventory within 5 years their collection of human skeletal remains

and associated funerary objects and identify cultural descendants. 

Human skeletal remains and funerary objects must be transferred to

these cultural descendants for disposition in accordance with their

customs if they so request. A summary of all unassociated funerary

objects and sacred objects must be completed within three years and

records made available to Native American organizations.
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B-185. 28 November 1990, Public Law 101-624--Food, Agriculture,

Conservation and Trade Act of 1990. Section 1422 modifies the

'Swampbuster' provision of the 1985 Food Security Act to provide for

delineation of wetlands which are defined as having a predominance of

hydric soils which under normal circumstances support a prevalence of

hydrophytic vegetation. It also provides for additional exemptions

for activities in wetlands that have been frequently cropped, if a

converted wetland is restored. Penalties are reduced when activities

were conducted in good faith, if the wetland is being actively

restored.

B-186. 28 November 1990, Public Law 101-640--Water Resources

Development Act of 1990. Planning and Engineering. Section 301

directs that1`zaq if a non-Federal sponsor contributes 50 percent of

the cost of the feasibility study, costs of planning and engineering

for the project shall be treated as costs of construction.

Emergency Response. Section 302 amends Section 5 of the 1941 FCA, as

amended, to authorize the Secretary of the Army to prepare for

emergency response to any natural disaster and to expend funds for

emergency dredging to restore Federal navigation channels and

waterways after a natural disaster.

Construction of Navigation Projects by Non-Federal Interests. Section

303 amends Section 204 of Public Law 99-662 to permit a non-Federal

sponsor to complete a small navigation project initiated under the

Section 107 program, and to authorize the Secretary of the Army to

reimburse the sponsor for the Federal share of the cost of the

project.

Project Modifications for the Improvement of the Environment. Section

304 amends Section 1135 of Public Law 99-662 to delete the time period

for the Section 1135 program, and to change the authorized

appropriations to $15 million annually to carry out the program.

Ability to Pay. Section 305 directs the Secretary of the Army to

consider local, not statewide, economic and financial data when

evaluating a non-Federal sponsor's ability to pay and the revised

procedures must provide for a reduction in the non-Federal cash

contribution required in excess of minimum 5 percent. Revised

regulations must be published within 1 year.

Environmental Protection Mission. Section 306 directs the Secretary

of the Army to include environmental protection as one of the primary

missions of the Corps.

Wetlands. Section 307 establishes for the Corps water resources

program an interim goal of no overall net loss of wetlands and a longterm goal to increase the quality and quantity of the Nation's

wetlands. Directs the Secretary of the Army to establish an action

plan to achieve this goal and others within 1 year. Authorizes the

Secretary of the Army to establish a 3-year demonstration program for

wetlands restoration, enhancement, and creation. In addition,

authorizes the Secretary to establish a program for the training and

certification of wetlands delineators.

Flood Plain Management. Section 308 directs that the Secretary of the 

Army cannot consider for justifying new Federal project benefits from

protecting specified new or substantially improved structures built in

the flood plain after 1 July 1991. Structures which are not waterdependent would be affected if they are either built in the 100-year

flood plain with the first floor elevation less than the 100-year

flood elevation after 1 July 1991 or the 10-year flood plain if the

county is substantially located within the 100-year flood plain. Also 
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directs the Secretary to report by 1 January 1992 on the advisability

of increasing the non-Federal share in areas where certain new flood

plain development occurs after a community enters into the national

flood insurance program.

Shoreline Protection. Section 309 directs the Secretary of the Army

to report within 1 year on the advisability of not participating in

shoreline protection projects unless the state has established a

management program which includes restrictions on new development,

provisions for the relocation of structures, and for assuring public

access.

Reservoir Management. Section 310 directs the Secretary of the Army

to establish within 2 years a technical advisory committee to provide

to the Secretary and Corps recommendations on reservoir monitoring and

options for reservoir research. Also directs the Secretary to ensure

that significant opportunities for public participation are provided

in developing or revising reservoir operating manuals and report on

implementation of this matter by 1 January 1992. (Amended by Section

233, Public Law 103-404)

Reservoir Project Operations. Section 311 directs the Secretary of

the Army to report within 6 months on the purposes for which each

Corps reservoir project is authorized and the purposes for which it is

being operated.

Environmental Dredging. Section 312 authorizes the Secretary of the

Army to establish a 5-year, $10 million per year environmental

dredging program. The dredging must be performed in accordance with a

plan developed by interested Federal and non-Federal officials, and

the non-Federal sponsor must agree to pay the disposal costs and 50

percent of the cost of the dredging. (Amended by Section 205, Public

Law 103-404) 

Protection of Recreational and Commercial Uses. Section 313 directs

the Secretary of the Army to consider recreational impacts in planning

projects and in operating and maintaining them. The Secretary may

expend up to $2 million annually to mitigate for adverse recreational

impacts of maintenance, repair, rehabilitation, or reconstruction

activities. A non-Federal sponsor must agree to share the costs. 

Operation and Maintenance of Federal Hydropower Facilities. Section

314 declares that operation and maintenance of Federal hydropower

facilities are to be considered as inherently governmental functions

and not commercial activities.

Environmental Planning. Section 315 amends Section 904 of Public Law

99-662 to specify that, under the general requirement that projects

enhance the quality of the total environment, preservation and

enhancement of the environment are specific factors to be addressed in

planning.

Harbor Maintenance Trust Fund. Section 316 amends Section 210 of

Public Law 99-662 to authorize the use of appropriations from the

Harbor Maintenance Trust Fund to pay up to 100 per cent of the

eligible operation maintenance costs assigned to commercial

navigation.

Single Entities. Section 317 directs the Secretary of the Army to not

consider facilities owned by a state, county, municipality or other

public entity as a single owner or single entity for any purpose.

Technical Assistance to Private Entities. Section 318 authorizes the

Secretary of the Army to use Corps research and development

laboratories to provide assistance on a reimbursable basis to the

private sector. The assistance must be within the mission of the

Corps and not otherwise obtainable from the private sector. In

addition, Section 9 of Public Law 100-676 is amended by removing the

2-year limit on the program to provide technical assistance, on a

nonexclusive basis, to U.S. firms working outside the United States.

Cabin Site Leases. Section 320 amends Section 1134 of Public Law 99-
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662 to add cabins and trailers to the list of property interests

protected from lease cancellation at Corps reservoirs.

Information on Floods and Flood Damages. Section 321 amends Section

206 of Public Law 86-645 to authorize the Secretary of the Army to

collect fees from Federal agencies and private persons for flood plain

management services and specifically prohibit the Secretary from

collecting fees from non-Federal public entities.

Reduced Pricing for Certain Water Supply Storage. Section 322

authorizes the Secretary of Army to provide at a reduced price up to 2

MGD of water to a community of less than 20,000 with a per capita

income less than that of two-thirds of the counties in the U.S. The

price shall be the greater of (1) the updated construction cost of the

water supply storage or $100 per acre foot, whichever is less and (2)

the value of the benefits lost by providing the water.

Demonstration of Construction of Federal Project by Non-Federal

Interests. Section 404 directs the Secretary of the Army within 1

year, to enter into agreements with two non-Federal interests which

permit the non-Federal interests to undertake all or part of a

navigation project by utilizing their own personnel or by procuring

outside services. The non-Federal cost must not exceed the cost of

the Secretary undertaking the project.

Wetlands Enhancement Opportunities. Section 409 directs the Secretary

of the Army to submit a report by 20 January 1992 that identifies

opportunities for enhancing wetlands in connection with the

construction and operation of water projects.

Magnetic Levitation Technology. Section 417 authorizes the Secretary

of the Army in fiscal years 1990 and 1991 to conduct research and

development activities on magnetic levitation technology or to provide

for such activities in cooperation with the Secretary of

Transportation. The Secretary may collaborate with non-Federal

entities. The non-Federal share of the costs is 50 percent.

B-187. 29 November 1990, Public Law 101-646--Nonindigenous Aquatic

Nuisance Prevention and Control Act of 1990 (Title I). Section 1202

directs the Assistant Secretary of the Army for Civil Works to serve

on the Aquatic Nuisance Species Task Force; directs the Task Force to

develop a research and technology development program aimed at

controlling the zebra mussels in and around public facilities and to

make grants for implementation of public facilities management plans

of states.

Great Lakes Fish and Wildlife Restoration Act of 1990 (Title II). This

title is essentially the same as Title I of Public Law 101-537, except

that Section 2009(b) authorizes $1.5 million to be annually

appropriated to the Secretary of the Army.

Coastal Wetlands Planning, Protection and Restoration Act (Title III)

(also known as the Breaux Bill). Sections 303 and 304 direct a Task

Force chaired by the Secretary of the Army to develop within three

years a Louisiana Coastal Wetlands Restoration Plan and to carry out

restoration projects. Section 305 directs the Director of the Fish

and Wildlife Service to make matching grants to other coastal states

to carry out coastal wetlands conservation projects. Eighteen percent

of the funds appropriated annually from the DOI's Sport Fish

Restoration Account are to be used to implement these provisions.

B-188. 17 August 1991, Public Law 102-104--Energy and Water

Development Appropriations. Makes appropriations for energy and water

development for the fiscal year ending 30 September 1992. Regulatory

Program. Title I states that funds may not be expended to delineate

wetlands using the 1989 manual, causing the Corps to revert back to

use of the 1987 manual. 
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B-189. 18 December 1991, Public Law 102-240--Intermodal Surface

Transportation Efficiency Act of 1991 (ISTEA). Establishes a national

intermodal surface transportation system, authorizes funds for

construction of highways, for highway safety programs and for mass

transit programs. 

Wetlands Mitigation. Sections 1006 and 1007 authorize use of

transportation funds for wetlands mitigation efforts, including

participation in wetlands mitigation banks.

National High-Speed Ground Transportation Programs. Section 1036

establishes a National Magnetic Levitation Prototype Development

Program to be managed by a Program Director appointed jointly by the

Secretary of Transportation and Assistant Secretary of the Army for

Civil Works. A portion of the funds shall be derived from the Highway

Trust Fund.

B-190. 30 September 1992, Public Law 102-372--Tourism Policy and

Export Promotion Act of 1991. Amends the International Travel Act of

1961 to assist in the growth of international travel and tourism into

the United States. 

Tourism Policy Council. Section 15 amends Section 302 of the

International Travel Act of 1961 by adding the Chief of Engineers and

others as members of the tourism policy council.

B-191. 6 October 1992, Public Law 102-386--Federal Facilities

Compliance Act of 1992. Section 102 amends Section 6001 of the Solid

Waste Disposal Act to provide that Federal facilities must comply with

Federal and state environmental laws and requirements. Section 104

amends section 3007(c) of the Solid Waste Disposal Act to require

annual inspection of Federal facilities by the Administrator of EPA. 

States with an authorized hazardous waste program may also conduct

inspections for the purposes of enforcing the facilities' compliance

with the State hazardous waste program. The department or agency must

reimburse the EPA for the costs of the inspection. At the first

inspection, EPA is to conduct comprehensive groundwater monitoring.

(42 U.S.C. 690)

B-192. 6 October 1992, Public Law 102-396--Department of Defense

Appropriations Act of 1993. Section 9137 states the sense of the

Congress that the Corps of Engineers should evaluate new concrete

construction technologies to identify those that could, if used in

future construction, reduce the extent of damages caused by

hurricanes.

B-193. 24 October 1992, Public Law 102-486--Comprehensive National

Energy Policy Act. Section 2406 authorizes the Secretaries of

Interior and Army to plan, design, construct, operate and maintain

power generation improvements and replacements at their projects in

the Pacific Northwest Region. They are also authorized to operate and

maintain their power facilities that they and the Administrator of the

Bonneville Power Administration determine necessary or appropriate

with any funds that the Administrator makes available for such

purpose. 

B-194. 31 October 1992, Public Law 102-575--Reclamation Projects

Authorization and Adjustments Act of 1992. 

 Cost Sharing for New Recreation Facilities. Section 2804 amends P.L.

89-72 (Federal Water Project Recreation Act) regarding cost sharing

requirements for the provision of new recreation facilities. The

requirement for the sponsor to assume 100 percent of operations,

maintenance, and replacement costs is changed to "not less than one

half the costs." Although the original law was directed at the Bureau
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of Reclamation, these amendments extend to the Corps as well.

Western Water Policy Review. Title XXX directs the President to

undertake a comprehensive review of Federal activities in the 19

Western States which affect the allocation and use of water resources. 

An advisory commission which includes the Secretary of the Army shall

assist in the preparation and review of the report.

National Historic Preservation Act Amendments. Title XL amends the

National Historic Preservation Act by expanding Tribal Historic

Preservation Programs, establishing professional standards, and

creating a National Center for Preservation Technology and Training.

B-195. 31 October 1992, Public Law 102-580--Water Resources

Development Act of 1992. Ability to Pay. Section 201(a) modifies

Section 103(m) of Public Law 100-676 concerning the ability of

non-Federal interests to pay under cost-sharing agreements for flood

control and agricultural water supply. This ability to pay shall be

determined by the Secretary of the Army. Section 201(b) directs the

Secretary of the Army to: (1) review regulations on ability to pay in

light of locally prevailing conditions such as those associated with

specified projects; and (2) amend the regulations to the extent that

the Secretary determines necessary to more appropriately take into

account locally prevailing conditions which would limit the ability of

local interest to participate as non-Federal project sponsors in

accordance with established cost-sharing formulas.

Projects for Improvements of the Environment. Amends Section 1135 of

Public Law 100-676 to increase annual program limit to $25 million but

requires that modifications exceeding $5 million be authorized by

Congress.

Voluntary Contributions for Environmental and Recreation Projects. 

Section 203 authorizes the Secretary of the Army to accept

contributions of cash, funds, materials, and services from anyone

except project sponsors for a water resources project for

environmental protection and restoration or for recreation.

Beneficial Uses of Dredged Material. Section 204(a) establishes a new

program for beneficial uses of dredged material for construction,

operation or maintenance of an authorized navigation project. Section

204(c) requires non-Federal interests to agree to provide 25 percent

of construction costs including all LERR, and 100 percent of OMRR&R

associated with the project. Section 204(e) establishes an annual

program limit of $15 million. 

Definition of Rehabilitation for Inland Waterway Projects. Section

205 establishes a definition for "rehabilitation" for inland and

intracoastal waterway projects, to include major project feature

restoration, structural modification of a major project component

(not exhibiting reliability problems). Routine or deferred

maintenance are explicitly excluded.

Construction of Shoreline Protection Projects by Non-Federal

Interests. Section 206 authorizes construction of shoreline

protection projects on the U.S. coastlines by non-Federal interests

subject to permits and approval of the Secretary. Section 206 also

allows non-Federal entities to utilize Corps study information or

contract with the Corps to do studies, directs monitoring of

construction and O&M where appropriate, and authorizes the Secretary

of the Army to reimburse non-Federal interests the appropriate Federal

share of a project approved for construction.

Cost-Sharing for Disposal of Dredged Material on Beaches. Section 207

modifies section 145 of Public Law 94-587 to authorize political

subdivisions of States to enter into agreements (with concurrence of

States) for disposal of dredged material on beaches and to consider,

and to the maximum extent practicable, accommodate the schedule of the

sponsor in providing its share of costs.
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Dam Safety Program Extension. Amends Public Law 92-367. 

Section 209(a) extends the appropriations authority for State Safety

Programs element for two years, through FY 1994. Section 209(b)

extends the appropriations authority for State Training Programs

element for two years, through FY 1994. Section 209(c) extends the

appropriations authority for Research Program element for two years,

through FY 1994. Section 209(d) extends the appropriations authority

for Dam Inventory element for two years, through FY 1994. 

Safety Award and Promotional Materials. Section 210 authorizes a

$350,000 annual program for safety promotion and employee recognition.

Work for Others. Section 211 modifies the definition of "State" in 10

USC 3036(d) for those eligible for assistance under "Work for Others".

Use of Private Sector Resources in Surveying and Mapping. Section 212

directs the Secretary of the Army to use private sector resources to

the maximum extent practicable in carrying out surveying and mapping

activities in the civil works program.

Use of Domestic Products. Section 213 reaffirms need for compliance

with "Buy American Act" for procurements with funds appropriated to

carry out this Act and establishes reporting requirement and defines

"domestic product" for this provision.

Rural Project Evaluation and Selection Criteria. Section 214 directs

the Comptroller General to report to Congress in 18 months of

enactment on legislative and other recommendations to meet identified

objectives to enhance water resources development projects in rural

areas.

Dredged Material Disposal Areas. Section 216 directs the Secretary of

the Army to conduct a study on the need for changes in Federal law and

policy with respect to dredged material disposal areas for the

construction and maintenance of harbors and inland harbors. 

Board of Engineers. Section 223 abolishes the Board of Engineers for

Rivers and Harbors as of 180 days after enactment. Duties may be

transferred to other elements as determined necessary.

Channel Depths and Dimensions. Section 224 amends Section 5 of the

Act of March 4, 1915. (After construction of a navigation project,

this will allow required dredging outside authorized dimensions of

entrances, bends, sidings, and turning places as necessary to maintain

an effective project.)

Challenge Cost-Sharing Program for the Management of Recreation

Facilities. Section 225 authorizes the Secretary of the Army to

develop and implement a program to accept contributions of funds,

materials, and services from non-Federal public and private entities

to be used in managing recreation facilities and natural resources.

Debarment of Persons Convicted of Fraudulent Use of "Made in America"

Labels. Section 226 directs the Secretary of the Army to debar from

contracting with the Federal Government for three to five years a

person determined by the Secretary to have intentionally affixed "Made

in America" labels on products used in a civil works project and not

meeting criteria for such labeling.

Extension of Jurisdiction of Mississippi River Commission. Section

301 extends jurisdiction of the Mississippi River Commission to

include Terrebonne Parish and certain areas east of the East

Atchafalaya Basin Protection Levee and west of the Mississippi River

Levee.

Availability of Contaminated Sediments Information. Section 327

directs the Secretary of the Army to conduct a national study and

compile information on contaminated sediments and to report to

Congress in one year.

Harbor Maintenance Trust Fund Deposits and Expenditures. Section 330

requires the President to report to Congress on expenditures from and

deposits to the Harbor Maintenance Trust Fund by 1 Mar 93 and annually

thereafter. 
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Fish and Wildlife Mitigation. Section 333 modifies Section 906(c) of

Public Law 99-662 to provide that costs of LERR required for fish and

wildlife mitigation shall be allocated the same as other costs.

International Outreach Program. Section 401(a) authorizes the

Secretary of the Army to collect, analyze and make available

information and technology from abroad that could improve U.S.

waterborne transportation, both inland and deep draft. Efforts can

include R&D, training, technology transfer and technical services. 

Section 401(b) authorizes provision of such assistance to Federal,

state and local agencies, other public entities, corporations (profit

or nonprofit) and foreign governments. Section 401(c) authorizes that

funds to carry out programs can include those deposited in special

Treasury account by cooperating entity or organization.

Marine Technology Review. Section 402 authorizes the Secretary of the

Army to conduct a study and report to Congress on dredging needs of

U.S. ports and harbors based on all relevant physical, economic and

world trade factors.

Contaminated Sediment and Ocean Dumping. Title V establishes a 

National Contaminated Sediment Assessment and Management program.

Section 502(a) establishes a National Contaminated Sediment Task Force

to advise the Secretary of the Army and EPA Administrator on

implementation of Title V; review reports, programs and pollutants

selected for criteria; advise and make recommendations on guidelines

and prevention and control measures; and review and advise on means

and methods to locate long-term disposal sites.

Section 502(b) establishes membership for the Task Force, designates

the Administrator and Secretary as cochairmen; establishes method for

provision of clerical and technical assistance and compensation of

non-Federal members.

Section 502(c) directs the Task Force to provide a report to Congress

within two years on findings and recommendations.

Section 503(a) directs the Administrator to conduct a comprehensive

survey of aquatic sediment quality in the United States, including

potential source of pollution and within 24 months of enactment to

report to Congress on findings with recommendations to prevent

contamination.

Section 503(b) directs the Administrator to conduct a comprehensive

and continuing monitoring program to assess aquatic sediment quality. 

The monitoring program includes location and extent of pollution;

methods and protocols for monitoring; system for data management;

assessment of trends over time; identify locations of where pollutants

may pose threats to specific resources; establish clearinghouse for

information; and, provide a report to Congress on findings within two

years.

Section 504(a) amends Sections 103(c) & (e) of the Marine Protection,

Research, and Sanctuaries Act of 1972 (MPRSA) to set procedures and

time limits for the Administrator to review and concur, concur with

conditions, or nonconcur with a proposed permit by the Secretary for

sediment disposal. The permit cannot be issued if a "nonconcur". If

a "concur with conditions", the permit issued has to include the

specific conditions and require compliance.

Section 505 amends Section 106(d) of the MPRSA to define the

applicability of state rules and establish an exception for Federal

projects.

Section 506(a) amends Section 102(c) of the Marine Protection,

Research, and Sanctuaries Act to direct the Administrator to designate

sites or time periods for dumping, and in conjunction with Secretary,

to develop a site management plan for each designated site and

describe what should be included in plan and periodic review time

frames. A deadline of 1 January 1997 is established for development

of management plans at all sites.
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Section 506(b) amends Section 103(b) of the MPRSA to establish basis

for selection and time limits on use of "alternative" disposal sites,

designated by the Secretary.

Section 507 amends Section 104 of the MPRSA to ensure consistency

with site management plan and set time limit for permits.

Section 508 amends Section 105 of the MPRSA to establish criminal

penalties for violation of provisions and authorize seizure and

forfeiture of vessels involved in violation.

Section 510 amends Section 112 of the MPRSA to provide that existing

reports required to Congress will include specific information on

permits issued, actions taken for each permit, and descriptive

information on permitted site, material disposed and management

practices implemented.

B-196. 16 November 1993, Public law 103-141--Religious Freedom

Restoration Act.

B-197. 3 December 1993, Public Law 103-181--Hazard Mitigation and

Relocation Assistance Act of 1993. Amends Public Law 93-288, as

amended, the Stafford Act, to: (1) increase from 50 to 75 percent of

the cost of hazard mitigation measures the amount authorized to be

contributed by the President when determined to be cost-effective

while substantially reducing the damage or loss suffered in a major

disaster; (2) increase the total Federal contributions for mitigation

authorized for damages from a major disaster to 15 percent of the

estimated aggregate amounts of grants to be provided under such Act

for such disaster; and (3) provide the terms and conditions under

which the Director of the Federal Emergency Management Agency may

provide property acquisition and relocation assistance in connection

with flood damaged property. States that the purchase of any real

property under a qualified buyout program (the Federally assisted

purchase of property damaged by the major Midwest flood of 1993) shall

not constitute the making of Federal financial assistance available

for the cost of a program resulting in the acquisition of real

property or in an owner of real property being a displaced person

within the meaning of the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970.

B-198. 12 February 1994, Public Law 103-211--Emergency Supplemental

Appropriations Act of 1994. Makes appropriations to the Department of

Agriculture to repair damage to the waterways and watersheds resulting

from the Midwest floods and California fires of 1993 and other natural

disasters, provided, among other things, that the Secretary of the

Army determines that the cost of land and levee restoration exceeds

the fair market value of an affected cropland, the Secretary may use

sufficient amounts from funds provided under this heading to accept

bids from willing sellers to enroll such cropland inundated by the

Midwest floods of 1993 in any of the affected States in the Wetlands

Reserve Program.

B-199. 26 August 1994, Public Law 103-316--Energy and Water

Development Appropriations Act, 1995. Report language directs the

Secretary of the Army to take whatever steps are possible to ensure

that fees charged be the private lessees for the use of boat launch

facilities constructed by the Corps do not exceed those charged by the

Corps for the use of similar facilities. In addition, the Secretary

is directed to take whatever steps are possible to ensure that

individuals who purchase season passes for the use of Corps boat

launching facilities can use those passes at all facilities

constructed by the Corps even if they are operated by private lessees.
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B-200. 23 September 1994, Public Law 103-325--National Flood

Insurance Reform Act of 1994 (Title VI). Section 641 amends the

Housing and Urban Development Act of 1968 to require the FEMA Director

to coordinate all flood and erosion mitigation activities under the

Act. 

B-201. 5 October 1994, Public Law 103-337--National Defense

Authorization Act for FY 1995. Section 1143 directs the Secretary of

Defense to establish a plan for the development and deployment of

existing defense environmental technologies in support of the dredging

requirements of dual-use ports. The plan, to be submitted to Congress

not later than 180 days after 5 October 1994 (the date of enactment),

shall include: (1) the environmentally secure containment and

management of contaminated dredged material, and (2) the

decontamination of dredged material. 

B-202. 31 October 1994, Public Law 103-426--A bill to authorize the

Secretary of the Interior to negotiate agreements for the use of Outer

Continental Shelf sand, gravel, and shell resources. Amends the Outer

Continental Shelf Lands Act to authorize the Secretary of the Interior

to negotiate agreements for the use of sand, gravel and shell

resources from the Outer Continental Shelf for use in 1) shore

protection, beach restoration or coastal wetlands restoration programs

or projects undertaken by a Federal, state or local government entity

or 2) a construction project that is funded in whole or in part by or

authorized by the Federal Government. The Secretary may assess a fee

based on an assessment of the value of the resources and the public

interest served by promoting development of the resources. Requires

any Federal agency which proposes to make use of sand, gravel and

shell resources under provisions of this Act to enter into a MOA with

the Secretary concerning the potential use of those resources; and

Secretary of the Interior to notify the House Committee on Merchant

Marine and Fisheries, the House Committee on Natural Resources, and

the Senate Committee on Energy and Natural Resources.

B-203. 10 February 1996, Public Law 104-106--National Defense

Authorization Act for FY 1996. Value Engineering for Federal

Agencies. Section 4306 amends the Office of Federal Procurement

Policy Acy (431 U.S.C. 401 et seq.) to direct that each Executive

agency shall establish and maintain cost-effective value engineering

procedures and processes.

B-204. 12 October 1996, Public Law 104-303--Water Resources

Development Act of 1996. Cost Sharing for Dredged Material Disposal

Areas. Section 201 directs that dredged material disposal facilities

for O&M be considered a general navigation feature and cost shared in

accordance with Title I of Public Law 99-662. The Harbor Maintenance

Trust Fund will be the source of the Federal portion of the funds for

construction of dredged material disposal facilities for O&M.

Project Cost Sharing. Section 202 increases to 35 percent the nonFederal cost sharing requirements for flood control and most

environmental restoration projects authorized after the date of

enactment of this act. (The Section 1135 Program remains at 25

percent). Revises ability-to-pay rules for flood control projects and

requires preparation of a flood plain management plan by the nonFederal sponsors within one year of signing a PCA.

Emergency Response. Section 202(e) amends Section 5 of the 1941 FCA,

as amended, to authorize implementation of nonstructural alternatives 
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in the repair or restoration of damaged flood control works.

Levee Owners Manual. Section 202(f) amends Section 5 of the 1941 FCA,

as amended, to require the Secretary of the Army to prepare Levee

Owners Manual on potentially eligible flood control works, provide to

non-Federal interests, and defines the terms “maintenance and upkeep”

and “repair and rehabilitation”.

Restoration of Environmental Quality. Section 204 broadens the

Section 1135 program to specifically allow restoration work off of

project lands as long as it is shown that a Corps project contributed

to the degradation of the environment.

Aquatic Ecosystem Restoration. Section 206 authorizes the Secretary

of the Army to carry out aquatic ecosystem restoration and protection

projects subject to a Federal cost limitation of $5 million per

project. Beneficial Uses of Dredged Materials. Section 207 directs

that, in connection with carrying out navigation projects, the

Secretary may select a disposal method that is not the least cost

option if the incremental costs are reasonable in relation to the

environmental benefits, including wetlands development and shoreline

erosion control.

Environmental Protection and Restoration. Section 210 amends Section

103(e) of Public Law 99-662 to add environmental protection and

restoration as another project purpose with a non-Federal cost share

of 35 percent.

Construction of Flood Control Projects by Non-Federal Interests. 

Section 211 allows non-Federal interests to construct authorized flood

control projects.

Emergency Bank Protection. Section 219 amends Section 14 of the 1946

FCA to increase program expenditure limits to $15 million per year and

$1 million per locality.

Reimbursement for Non-Federal Expenditures. Section 224 amends

Section 215 of the 1968 FCA, as amended, to increase the limit on

reimbursements per project to $5 million.

Planning Assistance to States. Section 221 expands the Planning

Assistance to States Program to include ecosystem and watershed

planning. Increases the annual program limit and per state limit.

State and Federal Review Period. Section 223 changes the Federal

review period for feasibility studies from 90 down to 30 days.

Shore Protection. Section 227 clarifies shore protection policy to

maintain a Federal interest in shoreline and beach protection and

restoration, including the use of periodic beach nourishment.

Hopper Dredges. Section 237 directs initiation of a program to

increase the use of private industry hopper dredges in navigation

maintenance.

B-205. 26 October 1996, Public Law 104-332--National Invasive Species

Act. Establishes a national ballast-water management program to

reduce the introduction and spread of foreign aquatic species in all

U.S. waters.

Public Facility Research and Development. Section 2(e) amends

subtitle C of the Nonindigeneous Aquatic Nuisance Prevention and

Control Act of 1990 to direct the Assistant Secretary of the Army, in

consultation with the Aquatic Nuisance Species Task Force, to develop

a program of research, technology development, and demonstration for

the environmentally sound control of zebra mussels in and around

public facilities.

Dispersal Barrier Demonstration. Section 2(e) amends subtitle C of

the Nonindigeneous Aquatic Nuisance Prevention and Control Act of 1990

to direct the Assistant Secretary of the Army, in consultation with

the Aquatic Nuisance Species Task Force, to investigate and identify

environmentally sound methods for preventing and reducing the

dispersal of aquatic nuisance species between the Great Lakes-Saint
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Lawrence drainage and the Mississippi River drainage through the

Chicago River Ship and Sanitary Canal, including any of those methods

that could be incorporated into the operation or construction of the

lock system of the Chicago River Ship and Sanitary Canal.

B-206. 12 November 1996, Public Law 104-333--Omnibus Parks and Public

Lands Management Act of 1996. National Recreation Study. Section

1021 amends the Land and Water Conservation Fund Act of 1965 to

require the President to appoint a nine-member advisory commission (to

include the Secretary of the Army or his/her designee) to review the

current and anticipated demand for recreational opportunities at lakes

and reservoirs managed by the Federal government. Once the review is

complete, the commission is to submit a report addressing the extent

of water related recreation at Federal manmade lakes and reservoirs

and develop alternatives to enhance the opportunities for such use by

the public. 

B-207. 12 June 1997, Public Law 105-18--Emergency Supplemental

Appropriations Act. 

Susquehanna River Basin Compact and the Delaware River Basin Compact

Membership. Section 3001 directs that, beginning in FY 1997, U.S.

members and alternates appointed under the Susquehanna River Basin

Compact and the Delaware River Basin Compact shall be Presidentially

appointed and Senate-confirmed Regular Army officers of the Corps of

Engineers.

Consultation and Conferencing under the Endangered Species Act. 

Section 3003 suspends reviews mandated by the Endangered Species Act

for flood-control projects if it is determined that the repairs are

necessary to prevent an imminent disaster.

B-208. 19 November 1997, Public Law 105-85--National Defense

Authorization Act for Fiscal Year 1998. Report on the Command

Selection Process for District Engineers of the Army Corps Of

Engineers. Section 508 directs that not later than 31 March 1998, the

Secretary of the Army shall submit to Congress a report on the command

selection process for officers serving as Corps District Engineers. 

B-209. 5 October 1998, Public Law 105-270--Federal Activities

Inventory Reform Act. Requires the head of each executive agency to

annually submit to the Director of the Office of Management and Budget

(OMB) a list of their functions that, in the judgment of the agency,

are not inherently governmental functions. The entry for each

activity on the list is to include: (1) the fiscal year for which the

activity first appeared on a list prepared under this Act; (2) the

number of full-time employees (or its equivalent) that are necessary

for the performance of the activity by a Federal Government source;

and (3) the name of a Federal Government employee responsible for the

activity from whom additional information about the activity may be

obtained. Directs the OMB Director to review each list and consult

with the agency regarding the content of the final list for that

fiscal year. The agency must then transmit a copy of the list to

Congress and make the list available to the public. After the notice

of public availability of a list is published by OMB, each time the

agency considers contracting with a private sector source for the

performance of such an activity, it must use a competitive process to

select the source (except as may otherwise be provided in other laws,

Executive Orders, regulations, or any executive branch circular

setting forth requirements or guidance that is issued by competent

executive authority).
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APPENDIX C

EXECUTIVE ORDERS PERTINENT TO THE WATER RESOURCES

PROGRAM OF THE CORPS OF ENGINEERS

C-1. Executive Order 10913, 18 January 1961, Amending Executive Order

No. 10584 Prescribing Rules and Regulations Relating to the

Administration of the Watershed Protection and Flood Prevention Act. (P.L. 566, 83rd Congress, as amended). Sections 3 and 4 provide for

notification and coordination of agencies in the use, conservation,

and development of water and related land resources.

C-2. Executive Order 11017, 27 April 1962, Providing for Coordination

with Respect to Outdoor Recreation Resources and Establishing the

Recreation Advisory Council. This order establishes the Recreation

Advisory Council which shall provide policy advice to heads of Federal

agencies, on matters affecting outdoor recreation resources, and

facilitate coordinated efforts among the various Federal agencies.

C-3. Executive Order 11200, 2 March 1965, Providing for Establishing

User Fees Pursuant to the Land and Water Conservation Fund Act of

1965. This order provides criteria for designating areas where

entrance, admission and other recreation user fees will be charged. 

Section 5 prescribes the establishment of these fees.

C-4. Executive Order 11426, 31 August 1968, Federal and State Liaison

and Cooperation. This order directs and outlines additional duties of

the Director of the Office of Emergency Planning in his capacity as

the President's liaison with the Governors of the States and

Territories.

C-5. Executive Order 11472, 29 May 1969, Establishing the

Environmental Quality Council and the Citizens Advisory Committee on

Environmental Quality. This order established a council and committee

to advise and assist the President with respect to environmental

quality matters. (Amended by E.O. 12007, 22 Aug 77.)

C-6. Executive Order 11514, 5 March 1970, Protection and Enhancement

of Environmental Quality. Section 2 of the order outlines the

responsibilities of Federal agencies in consonance with Title I of the

National Environmental Policy Act of 1969. (Amended by E.O. 11991, 24

May 77.)

C-7. Executive Order 11592, 16 May 1971, Delegates Certain Authority

of the President to the Director of the Office of Management and

Budget. The Director of OMB is empowered to grant approvals

authorized, or required to be granted by the President, by any

provisions of the River and Harbor Act of 1970 and the Flood Control

Act of 1970.

C-8. Executive Order 11593, 13 May 1971, Protection and Enhancement

of the Cultural Environment. Section 2 of the order outlines the

responsibilities of Federal agencies in consonance with The National

Environmental Policy Act of 1969, The National Historic Preservation

Act of 1966, The Historic Sites Act of 1935, and the Antiquities Act

of 1906. Section 3 outlines specific responsibilities of the

Secretary of the Interior including review and comment upon Federal

agency procedures submitted under this order.

C-9. Executive Order 11643, 8 February 1972, Environmental Safeguards

on Activities for Animal Damage Control on Federal Lands. This order 
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states a Federal policy to restrict the use of chemical toxicants for

mammal or bird damage control on any Federal lands or in any Federal

control programs as authorized by law. Included are chemical

toxicants which cause any secondary poisoning effects. (Amended by

E.O. 11870, 18 Jul 75 and E.O. 11917, 28 May 76.)

C-10. Executive Order 11644, 8 February 1972, Use of Off-Road

Vehicles on the Public Lands. This order establishes a uniform

Federal policy regarding the use of vehicles such as trail bikes,

snowmobiles, dune-buggies and others, on public lands. Section 3

provides guidance for establishing zones of use for such vehicles. 

(Amended by E.O. 11989, 24 May 77.)

C-11. Executive Order 11735, 3 August 1973, Assignment of Functions

under Section 311 of the Federal Water Pollution Control Act, as

amended. Delegates authority to the Administrator of the

Environmental Protection Agency and the Secretary of the Department in

which the Coast Guard is operating for determinations of threats due

to discharge of oil or hazardous substances. (Amended by E.O. 12418,

5 May 83.)

C-12. Executive Order 11747, 7 November 1973, Delegating Certain

Authority of the President under the Water Resources Planning Act, as

amended. Section 1 authorizes the Director of the Office of

Management and Budget to approve rules, procedures, arrangements, and

provisions relating to coordination of the Federal planning assistance

program and utilization of Federal agencies administering related

programs. (This was revoked by E.O. 12608, 9 Sep 87.) Section 2

designates and empowers the Chairman of the Water Resources Council to

approve standards and procedures vested in the President by Section

103 of the Water Resources Planning Act.

C-13. Executive Order 11795, 11 July 1974, Delegating Disaster Relief

Functions Pursuant to the Disaster Relief Act of 1974. All but

Section 3 revoked by E.O. 12148. The Secretary of Agriculture may

still exercise Section 409 of Public Law 93-288 concerning food

coupons and distribution during relief activities.

C-14. Executive Order 11814, 11 October 1974, Activation of the

Energy Resources Council. This order is in response to Section 108 of

the Energy Reorganization Act of 1974 (P.L. 93-438). The Secretary of

the Interior is designated as Chairman. Additional officials

including the Secretary of Defense are members. Functions of the

Council include development of a single national energy policy and

program.

C-15. Executive Order 11821, 27 November 1974, Inflation Impact

Statements. This order directs that major proposals for legislation,

and for the promulgation of regulations or rules by any executive

branch agency must be accompanied by a statement which certifies that

the inflationary impact of the proposal has been evaluated.

C-16. Executive Order 11870, 18 July 1975, Environmental Safeguard on

Activities for Animal Damage Control on Federal Lands. This order

amends E.O. 11643 of the same title. Section 1 adds to the Federal

policy, the assurance that where chemical toxicants are used pursuant

to Section 3(b), only those combinations of toxicants and techniques

will be used which best protect nontarget wildlife species and

individuals. (Also see E.O. 11917, 28 May 76.)

C-17. Executive Order 11917, 28 May 1976, Animal Damage Control on 
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Federal Lands. This order further amends E.O. 11643 by adding that

agency heads may authorize the use of sodium cyanide in Federal

programs or on Federal lands, in accordance with regulations, and

subject to all present restrictions and those prescribed hereafter by

EPA.

C-18. Executive Order 11921, 11 June 1976, Adjusting Emergency

Preparedness Assignments to Organizational and Functional Changes in

Federal Departments and Agencies. This order amends E.O. 11490 of

October 1969. The Corps or other Defense elements, under the guidance

of the Department of Interior, will develop plans and programs to help

meet emergency water requirements in watershed areas under their

jurisdiction. In accordance with the Department of Transportation and

other Federal agencies, emergency plans and procedures will be

developed for: improvement, rehabilitation, operation and maintenance

of Federally authorized river and harbor projects, locating and

removing obstructions to navigation, and dredging to clear and

straighten navigation channels. Plans and procedures will also be

developed for management, control and allocation of water resources,

including establishing priorities for water use during emergencies. 

Amended by E.O. 12656 to transfer the lead in emergency water

requirements preparedness planning to the Secretary of the Army.

C-19. Executive Order 11954, 7 January 1977, Federal Property Review. 

Amended by E.O. 12030, 15 December 1978. Revoked by E.O. 12348, 25

February 1982.

C-20. Executive Order 11988, 24 May 1977, Flood Plain Management. 

This order outlines the responsibilities of Federal agencies in the

role of flood plain management. Each agency shall evaluate the

potential effects of actions on flood plains, and should not undertake

actions which directly or indirectly induce growth in the floodplain,

unless there is no practical alternative. Agency regulations and

operating procedures for licenses and permits should include

provisions for the evaluation and consideration of flood hazards. 

Agencies are required to prepare their procedures in consultation with

the Water Resources Council, the Federal Insurance Administration, and

the Council on Environmental Quality. Construction of structures and

facilities on flood plains must incorporate flood proofing and other

accepted flood protection measures. Agencies shall attach appropriate

use restrictions to property proposed for lease, easement,

right-of-way, or disposal to non-Federal public or private parties. 

This order revokes E.O. 11296, 10 August 1966. (This order was

modified by E.O. 12148 by deleting "Federal Insurance Administration"

and substituting "Director of the Federal Emergency Management

Agency.")

C-21. Executive Order 11989, 24 May 1977, Off-Road Vehicles in Public

Lands. Agency heads are authorized to close areas or trails, within

their jurisdiction, to off-road vehicles which cause adverse effects

to soil, vegetation, wildlife, wildlife habitat, culture or historic

resources. Fire, military, emergency, and law enforcement vehicles

are excluded, when used for emergency purposes. This order amends

E.O. 11644, 8 February 1972.

C-22. Executive Order 11990, 24 May 1977, Protection of Wetlands. 

This order directs Federal agencies to provide leadership in

minimizing the destruction, loss or degradation of wetlands. Section

2 of this order states that, in furtherance of the National

Environmental Policy Act of 1969, agencies shall avoid undertaking or

assisting in new construction located in wetlands unless there is no

practical alternative. Each agency will provide opportunity for early
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public review of plans and proposals for construction in wetlands,

including those whose impact is not significant to require EIS

preparation. Section 9 exempts assistance provided for emergency

work, essential to protect lives, health, and property performed

pursuant to Sections 305 and 306 of the Disaster Relief Act of 1974. 

(Amended, to delete reference to the Water Resources Council in

Section 6, by E.O. 12608, 9 Sep 87.)

C-23. Executive Order 11991, 24 May 1977, Relating to Protection and

Enhancement of Environmental Quality. Section 1 of this order amends

Section 3(h) of E.O. 11514, by directing the Council of Environmental

Quality to issue guidelines to Federal agencies for implementing

procedural provisions of NEPA (1969). These regulations will include

procedures for early EIS preparation and require impact statements to

be concise, clear, and supported by evidence that agencies have made

the necessary analyses. The Council will resolve conflicts between

agencies, concerning the implementation of NEPA and Section 309 of

Clean Air Act, as amended.

C-24. Executive Order 12007, 22 August 1977, Termination of Certain

Advisory Committee. This order terminates several presidential

advisory committees, including the Citizens Advisory Committee on

Environmental Quality, which was established by E.O. 11472. This

order also amends Section 4 of E.O. 11514 in reference to the

Committee. 

C-25. Executive Order 12030, 15 December 1977, Termination of the

Federal Property Council. This order terminates the Federal Property

Council established by E.O. 11724, of 25 June 1973, and amends E.O.

11954 of 7 January 1977.

C-26. Executive Order 12088, 13 October 1978, Federal Compliance with

Pollution Control Standards. The head of each Executive agency is

responsible for ensuring that all necessary actions are taken for the

prevention, control and abatement of environment pollution, with

respect to Federal facilities and activities under control of the

agency. Each agency head will consult with the Administrator of EPA,

state, interstate, and local agencies concerning the best techniques

and methods for pollution control and prevention. Each agency is

directed to submit an annual environmental pollution control plan to

the Director of OMB. Section 1-4 describes this plan. This order

revokes E.O. 11752 of 17 December 1973.

C-27. Executive Order 12113, 4 January 1979, Independent Water

Project Review. This order provided that Federal agencies that

prepare comprehensive regional or river basin plans, and formulate and

evaluate water and related land resources plans, were to follow a

current set of principles, standards and procedures established by the

Water Resources Council. The order directed the Council to ensure

impartial technical reviews of preauthorization reports or proposals,

and preconstruction plans for Federal or Federally assisted water and

land resources projects and programs. It required that reports,

proposals and plans must be submitted to the Council for review prior

to approval by Agency heads and subsequent submission to OMB for

authorization or funding requests. The order was amended by E.O.

12141, 5 June 1979; it was revoked by E.O. 12322, 17 September 1981.

C-28. Executive Order 12114, 4 January 1979, Environmental Effects

Abroad of Major Federal Actions. This order pertains to Federal

agencies whose actions have significant effects on the environment 
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outside of the United States, its territories and possessions. 

Agencies will establish a program for exchanging environmental

information. This program will provide information to decision

makers, facilitate cooperative use of information among Federal

agencies, and facilitate environmental cooperation with foreign

nations. The order directs agencies to establish procedures for

preparing documents (EIS's, summary environmental analyses, etc.) in

connection with Federal action abroad. Sections 2-3 and 2-4 describe

the categories of these actions and the necessary appropriate

documents. Actions exempt from this Order are described in Section

2-5. The Department of State and the Council on Environmental Quality

will provide consultation on procedures for implementing this Order.

C-29. Executive Order 12148, 20 July 1979, Federal Emergency

Management. This order establishes a new lead agency for civil

preparedness, which includes earthquake and other natural emergencies. 

The director will be responsible for promotion of dam safety. Revises

E.O. 11795 by revoking all portions except Section 3. Amends E.O.

11988 by deleting "Federal Insurance Administration" and substituting

"Director of the Federal Emergency Management Agency". This order was

itself amended by E.O. 12381. 

C-30. Executive Order 12291, 17 February 1981, Federal Regulation. 

Section 1 defines, relative to agency regulations, a "major rule." 

Section 2 sets forth requirements of regulations with respect to

benefits and costs to society. Section 3 requires development of a

"regulatory impact analysis" for each major rule. Section 4 requires

agency finding that a major rule is within the law and consistent with

congressional intent and inclusion of a memorandum to that effect in

the Federal Register at the time of promulgation.

C-31. Executive Order 12319, 9 September 1981, River Basin

Commissions. This order provided for termination of the six river

basin commissions established pursuant to Title II of the Water

Resources Planning Act of 1965. The Pacific Northwest River Basins

Commission, Great Lakes Basin Commission, Ohio River Basin Commission,

New England River Basins Commission, and Missouri River Basin

Commission were terminated as of 30 September 1981. The Upper

Mississippi River Basin Commission was terminated as of 31 December

1981.

C-32. Executive Order 12322, 17 September 1981, Water Resources

Projects. This order revokes E.O. 12113, as amended (thereby doing

away with independent water project review by the Water Resources

Council). It provides that: before any agency submits to Congress,

for approval, appropriations, or legislative action, any report,

proposal or plan relating to a Federal or Federally assisted water and

related land resources project or program, such report, proposal or

plan shall be submitted to OMB. OMB shall review each report,

proposal or plan for consistency with: the policy and programs of

President; the principles and standards established by the Water

Resources Council (18 CFR 711) or other such guidelines issued

subsequent to the date of this E.O.; and other laws, regulations and

requirements relevant to the planning process. The agency report,

proposal or plan, when thereafter submitted to Congress, shall include

astatement of the advice received from OMB based on its review.

C-33. Executive Order 12372, 14 July 1982, Intergovernmental Review

of Federal Programs. Supercedes prior procedures for obtaining state

and local government coordination and review of proposed Federal

assistance and direct Federal development. Provides that Federal 
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agencies shall rely for such purposes, to the extent permitted by law,

upon the processes established by each state. Provides that each

state may, as part of its process, select the kinds of Federal

programs with which it desires to be consulted--excluding others from

review and comment. Provides for revocation of OMB Circular A-95. 

Amended by E.O. 12416, 8 April 1983.

C-34. Executive Order 12381, 8 September 1982, Delegation of

Emergency Management Functions. Amends E.O. 12148 to delegate to the

Director of the Federal Emergency Management Agency (FEMA) certain

functions vested in the President by the Disaster Relief Act of 1974,

the Earthquake Hazards Reduction Act of 1977, and the Federal Civil

Defense Act of 1950.

C-35. Executive Order 12407, 22 February 1983, Federal Regional

Councils. Terminated the councils originally established pursuant to

E.O. 11647, 8 February 1972.

C-36. Executive Order 12498, 4 January 1985, Regulatory Planning

Process. Estabishes (complementary to E.O. 12291) a regulatory

planning process in which the agencies will propose their overall

regulatory program for the forthcoming year to OMB which, after

review, will compile the Administration's annual regulatory program. 

Section 3 provides that proposed regulations subsequently submitted

which are at variance with the original submittal or were not included

in the approved program may be returned to the agencies by OMB for

reconsideration.

C-37. Executive Order 12512, 29 April 1985, Federal Real Property

Management. Invested the Domestic Policy Council as the forum for

approving Government-wide real property management policies. Required

all Executive departments to set annual real property management goals

and designated OMB as the agency to review progress towards those

goals. Revoked E.O. 12348 of 25 February 1982.

C-38. Executive Order 12580, 23 January 1987, Superfund

Implementation. Delegates to Executive departments and agencies

various functions vested in the President by the Comprehensive

Environmental Response, Compensation and Liability Act of 1980, as

amended. Establishes a National Response Team (NRT), which includes

the Department of Defense, for Superfund matters. Establishes the

Administrator of the Environmental Protection Agency (EPA) as the

chairman of the NRT and a Coast Guard representative as vice-chairman. 

The NRT is to oversee the National Contingency Plan (NCP). The E.O.

delegates enforcement responsibilities to the EPA, in conjunction with

the Attorney General. Clean-up responsibilities are the responsibility

of the agency which has jurisdiction over the particular sites or

facilities. Amended by E.O. 13016 dated 28 August 1996.

C-39. Executive Order 12612, 26 October 1987, Federalism. Directs

Federal agencies and departments to minimize Federal actions that

would limit the policymaking discretion of the States and to grant to

States the maximum administrative discretion possible. If an agency

plans through adjudication or rule-making to preempt State law, the

agency must provide all affected states the opportunity to participate

in the proceedings. 

C-40. Executive Order 12615, 19 November 1987, Performance of 
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Commercial Activities. Established an ongoing study effort throughout

the Federal establishment directed toward identifying of commercial

activities by the Federal agencies and determining whether they could

be performed more economically by private industry.

C-41. Executive Order 12630, 15 March 1988, Governmental Actions and

Interference with Constitutionally Protected Property Rights. Required the Department of Justice to issue guidelines to enable

Executive departments and agencies to evaluate the risk of effecting a

fifth amendment taking through their policies and actions. The E.O.

requires an analysis of possible "taking" problems be submitted to OMB

in advance of proposed actions that impact private property in

furtherance of "public health and safety" concerns. The E.O. seeks

to reduce the possibility of a "regulatory taking" being embedded in

the actions and policies of the Federal Government.

C-42. Executive Order 12656, 18 November 1988, Assigning Emergency

Preparedness Responsibilities to Federal Departments and Agencies. 

Assigns national security preparedness responsibilities to Federal

departments and agencies. DOD's responsibilities include: develop

and maintain, in cooperation with other departments and agencies,

national security plans and programs; develop and maintain damage

assessment capabilities and assist FEMA Director and heads of other

departments and agencies in developing and maintaining capabilities to

assess attack damage; acting through the Secretary of the Army,

develop overall plans for the management, control and allocation of

all usable waters from sources within the jurisdiction of the U.S.;

develop plans to assure emergency operations of waterways and harbors;

and develop plans for provision of potable water. 

C-43. Executive Order 12770, 25 July 1991, Metric Usage in Federal

Government Programs. Designates the Secretary of Commerce to direct

and coordinate efforts by Federal departments and agencies to

implement Government metric usage in accordance with Section 3 of the

Metric Conversion Act (15 U.S.C. 205b), as amended by Section 5164(b)

of the Trade and Competitive Act. All Executive branch departments

and agencies of the United States Government are directed to take all

appropriate measures within their authority to carry out the

provisions of this order which include: "(a) use, to the extent

economically feasible.., the metric system of measurement in Federal

Government procurements, grants, and other business-related

activities...", and "(b)...The transition to use of metric units in

Government publications should be made as publications are revised on

normal schedules or new publications developed..." 

C-44. Executive Order 12777, 18 October 1991, Implementation of

Section 311 of the Federal Water Pollution Control Act of October 18,

1972, as Amended, and the Oil Pollution Act of 1990. Revises

Executive Order 12580 and specifies responsibilities and procedures to

be followed in the event of accidental discharges of oil or hazardous

substances into the waters of the United States. Specifies lead

agencies for issuing regulations concerning financial responsibility

for accidental discharges. 

C-45. Executive Order 12803, 30 April 1992, Infrastructure

Privatization. Directs Federal agencies and departments to review

procedures affecting the management and disposition of federally

financed infrastructure assets owned by state and local governments 
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and to modify those procedures to encourge "appropriate privatization

of such assets consistent with this order." Federal agencies and

departments are to assist state and local governments in their efforts

to advance the objectives of the E.O. by approving state and local

governments' requests to privatize infrastructure assets if the nonFederal entity (1) agrees to use the proceeds to invest in additional

infrastructure assets, and (2) demonstrates that a "market mechanism,

legally enforceable agreement, or regulatory mechanism" is in place

that will ensure that the infrastructure asset will be used for its

originally authorized purpose.

C-46. Executive Order 12805, 11 May 1992, Integrity and Efficiency in

Federal Programs. Establishes a President's Council on Integrity and

Efficiency and an Executive Council on Integrity and Efficiency to

"identify, review, and discuss areas of weakness and vulnerability in

Federal programs and operation to fraud, waste, and abuse", and to

develop plans that will promote economy and efficiency in Government

programs. 

C-47. Executive Order 12862, 11 September 1993, Setting Customer

Service Standards. Directs Federal agencies and departments to

identify and survey customers (individual or entity served), establish

and measure results against service standards, address barriers to

being the best in the business, provide customers with choices, make

information and services easily accessible, and address complaints. A

customer service plan is required to be published.

C-48. Executive Order 12866, 30 September 1993, Regulatory Planning

and Review. Designed to "reform and make more efficient the

regulatory process," this E.O. directs Federal agencies and

departments with regulatory programs to evaluate alternatives to

regulation, assess the risks posed by the substances or activities

under their jurisdiction, and to develop the most cost-effective

manner of meeting the regulatory objective. The E.O. establishes that

each Federal agency shall "avoid regulations that are inconsistent,

incompatible, or duplicative with its other regulations or those of

other Federal agencies". Furthermore, regulations are to be drafted

in such a way as to impose the least burden on society and in "simple

and easy to understand" language. Directs OMB (Office of Information

and Regulatory Affairs (OIRA)) to review proposed regulations and

designates the Vice-President as the principal advisor to the

President on regulatory matters. Directs Federal agencies and

departments to submit to OIRA a program that will establish a periodic

review of agency regulations. Prescribes the process for drafting

and publishing regulations.

C-49. Executive Order 12893, 26 January 1994, Principles for Federal

Infrastructure Investments. Starting with the Fiscal Year 1996 budget

submission, directs Federal agencies and departments to make a

systematic analysis of programs’ benefits and costs for major programs

(a single account or grouping of accounts greater than $50 million

annually); to conduct periodic reviews of operation and maintenance

practices to consider a variety of management practices that can

improve the return from infrastructure investments; and to submit

implementation plans to the OMB by 15 March 1994. 

C-50. Executive Order 12898, 11 February 1994, Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income

Populations. Directs Federal agencies and departments to make

achieving environmental justice a part of their mission "to the

greatest extent practicable and permitted by law, and consistent with

the principles set forth in the report on the National Performance
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Review." Establishes an Interagency Working Group on Environmental

Justice, which includes the Department of Defense, to develop

guidelines for Federal agencies. Directs agencies to "collect,

maintain, and analyse information assessing and comparing

environmental and human health risks borne by populations identified

by race, national origin, or income." Federal agencies are also to

collect and analyse information on the consumption patterns of

populations who principally rely on fish and/or wildlife for

subsistence.

C-51. Executive Order 12962, 7 June 1995, Recreational Fisheries. Directs Federal agencies to improve the quantity, function,

sustainable productivity, and distribution of U.S. aquatic resources

for increased recreational fishing opportunities by means of a number

of duties. Establishes a National Recreational Fisheries Coordination

Council consisting of seven members (including one designated by the

Secretary of Defense). The “Coordination Council” is charged with

developing a comprehensive Recreational Fishery Resources Conservation

Plan. Directs all Federal agencies to identify and minimize conflicts

between recreational fisheries and their responsibilities under the

Endangered Species Act of 1973. Expands the role of the Sport Fishing

and Boating Partnership Council.

C-52. Executive Order 13007, 24 May 1996, Indian Sacred Sites. 

Directs each Executive Branch agency with statutory or administrative

responsibility for the management of Federal lands, to the extent

practicable, permitted by law, and not clearly inconsistent with

essential agency functions, to (1) accommodate access to and

ceremonial use of Indian sacred sites by Indian religious

practitioners and (2) avoid adversely affecting the physical integrity

of such sacred sites. Where appropriate, agencies are to maintain the

confidentiality of sacred sites.

C-53. Executive Order 13016, 28 August 1996, Amending Executive Order

12580, 23 January 1987, Superfund Implementation. Amends E.O. 12580

by adding two new subsections to section 4. Subsection (c)(3) is

added to delegate the functions vested in the President by sections

106(a) and 122 (except subsection (b)(1)) of the Act) to the

Secretaries of the Interior, Commerce, Agriculture, Defense, and

Energy, to be exercised only with the concurrence of the Coast Guard,

with respect to any release or threatened release in the coastal zone,

Great Lakes waters, ports, and harbors, affecting (1) natural

resources under their trusteeship, or (2) a vessel or facility subject

to their custody, jurisdiction, or control. Such authority is not to

be exercised at any vessel or facility at which the Coast Guard is the

lead Federal agency for the conduct or oversight of a response action. 

Subsection (d)(3) is added to delegate the functions vested in the

President by sections 106(a) and 122 (except subsection (b)(1)) of the

Act) to the Secretaries of the Interior, Commerce, Agriculture,

Defense, and Energy, to be exercised only with the concurrence of the

Administrator, with respect to any release or threatened release

affecting (1) natural resources under their trusteeship, or (2) a

vessel or facility subject to their custody, jurisdiction, or control. 

Such authority is not to be exercised at any vessel or facility at

which the EPA Administrator is the lead Federal official for the

conduct or oversight of a response action.

C-54. Executive Order 13048, 11 June 1997, Improving Administrative

Management in the Executive Branch. Establishes an Interagency 
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Council on Administrative Management as an interagency coordination

mechanism to address administrative management matters not currently

being addressed by the President's Management Council, the Chief

Financial Officers Council, and the Chief Information Officers

Council. The Council shall be chaired by the Deputy Director for

Management of the Office of Management and Budget and shall include

one senior administrative management official from each of numerous

named agencies, including the Department of Defense and the Department

of the Army. The Council shall plan, promote, and recommend

improvements in Government administration and operations and provide

advice to the Chair on matters pertaining to the administrative

management of the Federal Government.

C-55. Executive Order 13057, 26 July 1997, Federal Actions in the

Lake Tahoe Region. Directs the Secretary of Agriculture, the

Secretary of the Interior, the Secretary of Transportation, the

Administrator of the Environmental Protection Agency, the Secretary of

the Army, and the heads of any other Federal agencies operating in the

Region that choose to participate to establish a Federal Interagency

Partnership on the Lake Tahoe Ecosystem. The Partnership shall, among

other things, facilitate coordination of Federal programs, projects,

and activities within the Lake Tahoe Region and promotion of

consistent policies and strategies to address the Region's

environmental and economic concerns; ensure that Federal agencies

closely coordinate with the States of California and Nevada and

appropriate tribal or local government entities to facilitate the

achievement of desired terrestrial and aquatic ecosystem conditions

and the enhancement of recreation, tourism, and other economic

opportunities within the Region; encourage the development of

appropriate public, private, and tribal partnerships for the

restoration and management of the Lake Tahoe ecosystem and the health

of the local economy; and support appropriate actions to improve the

water quality of Lake Tahoe through all appropriate means, including

restoration of shorelines, streams, riparian zones, wetlands, and

other parts of the watershed; management of uses of the lake; and

control of airborne and other sources of contaminants. The

Partnership shall negotiate with the States of California and Nevada,

the Washoe Tribal Government, the Tahoe Regional Planning Agency, and

interested local governments to develop a Memorandum of Agreement to

facilitate coordination among the parties to the Agreement and

document areas of mutual interest and concern and opportunities for

cooperation, support, or assistance.

C-56. Executive Order 13061, 11 September, 1997, Federal Support of

Community Efforts Along American Heritage Rivers. Establishes

National policy that the American Heritage Rivers initiative has three

objectives: natural resource and environmental protection, economic

revitalization, and historic and cultural preservation. Directs

executive agencies to (1) coordinate Federal plans, functions,

programs, and resources to preserve, protect, and restore rivers and

their associated resources important to our history, culture, and

natural heritage; and (2) develop plans to bring increased

efficiencies to existing and authorized programs with goals that are

supportive of protection and restoration of communities along rivers. 

No new regulatory authority is created as a result of the American

Heritage Rivers initiative. This initiative will not interfere with

matters of State, local, and tribal government jurisdiction. 

Establishes that the President will designate rivers that meet certain

criteria as "American Heritage Rivers." Establishes policy that

communities shall nominate rivers as American Heritage Rivers and the

Federal role will be solely to support community-based efforts to

preserve, protect, and restore these rivers and their communities. 
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Stipulates the process for nominating an American Heritage River. The

President is to designate ten rivers as American Heritage in the first

phase of the initiative.

Established the American Heritage Rivers Interagency Committee, which

is to be permanently co-chaired by the Chair of the CEQ and is to be

composed of the following members or their designees at the Assistant

Secretary level or equivalent: (1) the Attorney General; (2) the

Secretaries of Defense the Interior, Agriculture, Commerce, Housing

and Urban Development, Transportation, Energy; (3) the Administrator

of the Environmental Protection Agency; (4) the Chair of the Advisory

Council on Historic Preservation; (5) the Chairperson of the National

Endowment for the Arts; and (6) the Chairperson of the National

Endowment for the 

Humanities. (Amended by E.O. 13093, 27 July 1998.)

C-57. Executive Order 13073, 4 February 1998, Year 2000 Conversion. Establishes policy that agencies shall, among other things: (1) assure

that no critical Federal program experiences disruption because of the

Y2K problem; (2) assist and cooperate with State, local, and tribal

governments to address the Y2K problem where those governments depend

on Federal information or information technology or the Federal

Government is dependent on those governments to perform critical

missions; and (3) cooperate with the private sector operators of

critical national and local systems, including the banking and

financial system, the telecommunications system, the public health

system, the transportation system, and the electric power generation

system, in addressing the Y2K problem. Establishes the President's

Council on Year 2000 Conversion. Directs Agency Heads to assure that

efforts to address the Y2K problem receive the highest priority

attention in the agency, to assure that the policies established in

this order are carried out, and to identify a responsible official to

represent the head of the executive department or agency on the

Council with sufficient authority and experience to commit agency

resources to address the Y2K problem.

C-58. Executive Order 13080, 8 April 1998, American Heritage Rivers

Initiative Advisory Committee. Establishes an Advisory Committee

consisting of up to 20 members appointed by the President from the

public and private sectors. The Committee is directed to review

nominations from communities and recommend to the President up to 20

rivers for consideration for designation as American Heritage Rivers. 

From the rivers recommended for consideration, the President shall

designate ten as American Heritage Rivers. The Committee is to

consider whether the natural, economic (including agricultural),

scenic, historic, cultural, and/or recreational resources featured in

the application are distinctive or unique, and whether the community's

plan of action addresses all three American Heritage Rivers objectives

-- natural resource and environmental protection, economic

revitalization, and historic and cultural preservation. The Committee

is to be supported both administratively and financially by the

Secretary of Defense, acting through the Assistant Secretary of the

Army for Civil Works and shall terminate no later than 2 years from

the date of this order. (Amended by E.O. 13093, 27 July 1998.)

C-59. Executive Order 13084, 14 May 1998, Consultation and

Coordination with Indian Tribal Governments. Orders that, in

formulating policies

significantly or uniquely affecting Indian tribal governments,

agencies

shall be guided, to the extent permitted by law, by principles of

respect for Indian tribal self-government and sovereignty, for tribal

treaty and other rights, and for responsibilities that arise from the
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unique legal relationship between the Federal Government and Indian

tribal governments. Directs each agency to have an effective process

to permit elected officials and other representatives of Indian tribal

governments to provide meaningful and timely input in the development

of regulatory policies on matters that significantly or uniquely

affect their communities. Orders that, to the extent practicable and

permitted by law, no agency shall promulgate any regulation that is

not required by statute, that significantly or uniquely affects the

communities of the Indian tribal governments, and that imposes

substantial direct compliance costs on such communities, unless: (1)

funds necessary to pay the direct costs incurred by the Indian tribal

government in complying with the regulation are provided by the

Federal Government; or (2) the agency, prior to the formal

promulgation of the regulation, provides to the Director of OMB a

description of the extent of the agency's prior consultation with

representatives of affected Indian tribal governments, a summary of

the nature of their concerns, and the agency's position supporting the

need to issue the regulation, and makes available to the Director of

OMB any written communications submitted to the agency by such Indian

tribal governments.

C-60. Executive Order 13089, 11 June 1998, Coral Reef Protection. 

Establishes a policy that all Federal agencies whose actions may

affect U.S. coral reef ecosystems must: (1) identify those actions;

(2) utilize their programs and authorities to protect and enhance the

conditions of such ecosystems; and (3) to the extent permitted by law,

ensure that any actions they authorize, fund, or carry out will not

degrade the conditions of such ecosystems. Exceptions may be allowed

under the following conditions: (1) during time of war or national

emergency; (2) when necessary for reasons of national security, as

determined by the President; (3) during emergencies posing an

unacceptable threat to human health or safety or to the marine

environment and admitting of no other feasible solution; or (4) in any

case that constitutes a danger to human life or a real threat to

vessels, aircraft, platforms, or other man-made structures at

sea, such as cases of force majeure caused by stress of weather or

other act of God. Federal agencies whose actions affect U.S. coral

reef ecosystems are ordered, subject to the availability of

appropriations, to provide for implementation of measures needed to

research, monitor, manage, and restore affected ecosystems, including,

but not limited to, measures reducing impacts from pollution,

sedimentation, and fishing.

Directs the Secretaries of the Interior and Commerce, through the

Administrator of the National Oceanic and Atmospheric Administration

to co-chair a U.S. Coral Reef Task Force, whose members shall include,

but not be limited to, the Administrator of the Environmental

Protection Agency, the Attorney General, the Secretaries of the

Interior, Agriculture, Commerce, Defense, State, and Transportation,

the Director of the National Science Foundation, the Administrator of

the Agency for

International Development, and the Administrator of the National

Aeronautics and Space Administration. The Task Force is to oversee

implementation of the policy and Federal agency responsibilities set

forth in this order, and guide and support activities under the

U.S. Coral Reef Initiative. Duties of the U.S. Coral Reef Task Force

are to include coordination of a comprehensive program to map and

monitor U.S. coral reefs and to develop and implement, with the

scientific community, research aimed at identifying the major causes

and consequences of degradation of coral reef ecosystems.

C-61. Executive Order 13093, 27 July 1998, American Heritage Rivers,

Amending Executive Orders 13061 and 13080. Increases the number of
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rivers that the President may designate as American Heritage Rivers,

by ordering that the second sentence of both section 2(d)(1) of E.O.

13061 and of section 2(a) of E.O. 13080 are amended by deleting "ten"

and inserting "up to 20" in lieu thereof.

C-62. Executive Order 13101, 14 September 1998, Greening the

Government through Waste Prevention, Recycling, and Federal

Acquisition. Orders that, consistent with the demands of efficiency

and cost effectiveness, the executive agencies shall incorporate waste

prevention and recycling in the agency's daily operations and work to

increase and expand markets for recovered materials through greater

Federal Government preference and demand for such products. 

Establishes as National policy that preference be given to pollution

prevention, whenever feasible; and that pollution that cannot be

prevented should be recycled; pollution that cannot be prevented or

recycled should be treated in an environmentally safe manner. 

Disposal should be employed only as a last resort. Directs agencies

to comply with executive branch policies for the acquisition and use

of environmentally preferable products and services and implement

cost-effective procurement preference programs favoring the purchase

of these products and services. Creates a Steering Committee, a

Federal Environmental Executive (FEE), and a Task Force, and

establishes Agency Environmental Executive (AEE) positions within each

agency, to be responsible for ensuring the implementation of the E.O. 

Directs that within 6 months of the date of this order, the EPA

Administrator shall, in consultation with the Federal Environmental

Executive, prepare guidance for use in determining Federal facility

compliance with section 6002 of RCRA and the related requirements of

this EO. EPA inspections of Federal facilities conducted pursuant to

RCRA and the Federal Facility Compliance Act and EPA "multi-media"

inspections carried out at Federal facilities will include, where

appropriate, evaluation of facility compliance with section 6002 of

RCRA and any implementing guidance. EPA is ordered to develop

guidance within 90 days from the date of this order to address

environmentally preferable purchasing. The guidance may be based on

the EPA's September 1995 Proposed Guidance on the Acquisition of

Environmentally Preferable Products and Services and comments received

thereon. Directs each executive agency that has not already done so

to initiate a program to promote cost-effective waste prevention and

recycling of reusable materials in all of its facilities. The

recycling programs implemented pursuant to this section must be

compatible with applicable State and local recycling requirements.
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APPENDIX D

OFFICE OF MANAGEMENT AND BUDGET CIRCULARS

This appendix lists Office of Management and Budget instructions of a

continuing nature applicable to or of interest to civil works.

No. Subject Date

A-1 Office of Management and Budget system of

(Revised) Circulars and Bulletins to Executive

departments and establishments.................... 08/07/52

A-3 Governmental periodicals.......................... 05/02/85

(Revised)

A-11 Preparation and submission of budget estimates

(Revised) Transmittal Memorandum No. 71....................07/01/98

A-16 Coordination of surveying and mapping

(Revised) activities........................................ 05/06/67

 

A-18 Policies on construction of family housing........ 10/18/57

(Revised) Transmittal Memorandum No. 1.................... 08/23/67

A-19 Legislative Coordination and Clearance............ 07/31/72

(Revised) Transmittal Memorandum No. 1.................... 09/20/79

A-25 User Charges...................................... 09/23/59

 Transmittal Memorandum No. 1.................... 07/08/93

 Transmittal Memorandum No. 2.................... 04/16/74

A-34 Instructions on budget execution.................. 07/15/76

(Revised) Transmittal Memorandum No. 14.................. 

 11/07/97

A-50 Audit followup.................................... 09/29/82

A-67 Coordination of Federal activities on the

acquisition of certain water data................. 08/28/64

 

A-70 Federal credit policy............................. 08/24/84

(Revised)

A-73 Audit of Federal operations and programs.......... 06/20/83

A-76 Performance of commercial activities.............. 08/04/83

 Transmittal Memorandum No. 1.................... 08/12/85 

 Transmittal Memorandum No. 13................... 03/02/94

Revised Retirement Cost Factors 

 Transmittal Memorandum No. 6.................... 03/04/88

A-87 Cost principles for State and Local

(Revised) Governments....................................... 01/15/81

A-89 Catalog of Federal Domestic Assistance............ 08/17/84

(Revised)

A-94 Discount rates to be used in evaluating

(Revised) time-distributed costs and benefits............... 02/25/93
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A-97 Rules and regulations permitting Federal

(Revised) agencies to provide specialized or technical

services to state and local units of government

under Title III of the Inter-governmental

Cooperation Act of 1968........................... 08/29/69

 Transmittal Memorandum No. 1.................... 03/27/81

A-99 Direction and control of litigation............... 06/30/70

A-102 Uniform administration requirements for

(Revised) grants-in-aid to state and local

governments....................................... 03/03/88

A-104 Comparative cost analysis for decisions to lease

or purchase general purpose real 

property.......................................... 03/02/87

A-105 Standard Federal Regions.......................... 04/04/74

A-106 Reporting requirements in connection with prevention, control, and abatement of environmental

pollution at existing Federal facilities.......... 12/31/74

A-120 Guidelines for the use of consulting services .... 01/04/88

 Transmittal Memorandum No. 1.................... 11/19/93 

A-123 Internal control systems.......................... 08/04/86

(Revised)

A-125 Prompt payment.................................... 12/12/89

A-127 Financial management systems...................... 12/19/84

 Transmittal Memorandum No. 1.................... 07/23/93 

A-130 Management of Federal information resources ...... 12/12/85

 Transmittal Memorandum No. 2.................... 07/15/94 

Memo Designation under 44 U.S.C. 3509 and 3510 of the

(Actg Adm) U.S. Army Corps of Engineers as a “Central

Collection Agency” for certain data on U.S. 

Foreign Waterborne Transportation................. 09/28/98
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APPENDIX E

INTERAGENCY AGREEMENTS RELATED TO WATER RESOURCES

E-1. Army-Interior.

 a. 16-17 October 1944, Missouri River Basin (S.D. 247, 78th Congress). Agreement on the coordination of plans and the

responsibilities for development of main stream and tributaries in the

Missouri River Basin.

 b. 25 July 1947, Middle Rio Grande Project (H.D. 653, 8lst

Congress). A joint agreement on a unified plan for control of floods,

irrigation, and use of water on the Middle Rio Grande Basin in New

Mexico. Sets forth the works to be constructed by each agency in

completing the unified plan. The comprehensive plan of the two

agencies, in substantial accord with the joint agreement, was approved

by the Congress in the Flood Control Act of 1948.

 c. 11 April 1949, Columbia River Basin (H.D. 531 and 473, 8lst

Congress). Agreement between the Corps of Engineers and the Bureau of

Reclamation on principles and responsibilities for the comprehensive

plans of development in the Columbia River Basin. Also provides for

agency construction responsibility for projects under construction,

authorized or recommended in the comprehensive plans of development.

 d. 9 September 1953, Snake River Basin. Agreement on division of

planning responsibility and responsibility for recommending projects

on the Snake River. Based upon specific reaches of the main stream

and tributaries entering the main stream in those reaches.

 e. 20 August 1954. Agreement between the U.S. Fish and Wildlife

Service (USFWS) and the Corps of Engineers specifies procedures for

carrying out sound planning on fish and wildlife matters related to

river basin projects of the Corps of Engineers under the Coordination

Act of 1946. (P.L.732, 79th Congress). 

 f. 6 April 1955. Agreement between USFWS and the Corps specifies

the procedures and general provisions for carrying out general plans

for fish and wildlife management as specified in Section 3 of the

Coordination Act of 1946.

 g. 31 December 1958, Central Valley Basin, California. Comprehensive agreement dividing responsibilities for planning and

construction of water resources projects, for integrated operation of

facilities, and for marketing of services.

 h. 19 February 1962, Joint Policies Relative to Reservoir Project

Lands. Changed the former real estate policy adopted in 1953 to one

providing essentially for fee acquisition.

 i. March 1962, Texas River Basins Projects. By direction of the

Vice President, representatives of the Bureau of Reclamation, Corps of

Engineers, Agriculture, and the State of Texas agreed on construction

responsibilities among those agencies for the individual projects in

the basin plan. Transmitted to the Vice President by representatives

of the U. S. Study Commission and endorsed by the State of Texas.

 j. 14 March 1962, Alaska, Columbia, and Missouri River Basin. 
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30 Jul 99

E-2

Agreement on principles, procedures and designations of responsibility

in planning and carrying out Federal water resource development

activities in Alaska, the Columbia River Basin, and the Missouri River

Basin.

 k. 2 November 1970. Agreement between the Corps and the Bureau of

Reclamation to reinforce the coordination of engineering design and

construction practices through a common philosophy and alignment of

methodology. The agreement provides for exchange of information on

design standards, criteria, guide specifications, cost estimating

guidelines and lists of engineer computer programs.

 l. 2 February 1973. Memorandum of Agreement between the

Secretaries of Army and Interior sets forth the principles and

procedures for coordination of Corps and Bureau of Land Management

(BLM) programs where the Corps constructs and operates water resources

projects in the adjacent lands administered by BLM.

 m. 11 July 1976. Memorandum of Agreement between the U.S.

Geological Survey (USGS) and the Corps relating to use of the

Geological Survey's National Water Data Storage and Retrieval System

(WATSTORE).

 n. 8 June 1978. Memorandum of Understanding between the USGS and

the Corps which recognizes the Corps as a participating member of the

National Water Data Exchange (NAWDEX).

 o. 31 August 1978. Memorandum of Understanding between the USGS

and the Corps which establishes procedures for implementing

cooperation on the exchange of available information. Such

information includes results of research and investigations of

regional and local geology, seismology, and hydrology that are

relevant to site selection and design considerations for Corps

facilities, such as dams and other critical installations.

 p. 13 May 1980. Agreement between USFWS and the Corps covering

principles to be used by both agencies in the conduct and funding of

activities in accordance with the Fish and Wildlife Coordination Act

of 1958. This was amended by a further agreement dated 21 September

1982.

 q. 16 March 1984. Memorandum of Understanding to formulize a

system of annual meetings, both regionally and in Washington, D.C.,

between the Corps and the Bureau of Reclamation, to discuss each

agency's current water resources planning and construction agenda with

the overall objective of avoiding duplication of efforts.

 r. 8 November 1985. Memorandum of Agreement for review and

processing of permit applications under the Section 404, Section 10,

and Section 103 programs.

 s. 10 January 1989. Memorandum of Agreement to provide

coordination and cooperation for the conservation, development and

management of habitat for waterfowl and associated wetland species on

Army civil works projects, in response to goals set forth in the joint

United States and Canadian North American Waterfowl Management Plan.

 t. 26 October 1992. Memorandum of Agreement between the Corps and

the Bureau of Reclamation for the mutual backup of satellite data
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E-3

collection.

 u. 30 November 1994. Memorandum of Understanding between the Army

and the USGS to cooperate in the Federal Interagency Sedimentation

Project (FISP). MOU provides that activities and interagency staff of

FISP will be located at the Waterways Experiment Station. Other

agencies are invited to participate.

 v. 23 June 1995. Memorandum of Understanding between the Army and

the U.S. Department of the Interior concerning the trasnsfer,

operation, maintenance, repair, and rehabilitation of the Columbia

River Treaty Fishing Access Sites.

E-2. Defense-Interior.

 a. 8 March 1983. Transfer Agreement concurred in by the Federal

Emergency Management Agency (FEMA) 28 March 1983. Provides for

transfer to the Secretary of Defense acting through the Secretary of

the Army of responsibilities and functions assigned to the Secretary

of the Interior under E.0. 11490. That E.O., issued 28 October 1969

(and amended by E.0. 11921 issued 11 June 1976) provided that the

Secretary should: prepare a national emergency plan and develop

preparedness programs covering all usable waters, from all sources

within the jurisdiction of the United States, which can be managed

controlled and allocated to meet emergency requirements; give

appropriate consideration to emergency preparedness factors in the

conduct of regular agency functions; and be prepared to implement, in

the event of an emergency, the prepared plan for such event.

 b. 14 June 1985. Memorandum of Understanding to provide a

framework whereby research activities can be closely coordinated in

the wildlife and ecological sciences, vertebrate pest management, land

management, and other areas of mutual interest.

E-3. Army-Interior-Federal Power Commission (now known as Federal

Energy Regulatory Commission). 12 March 1954. Agreement that the

costs of combining reservoir project purposes shall be allocated in

proportion to the distribution of resulting savings. The following

three methods were considered acceptable: Separable Cost-Remaining

Benefit (SCRB), Alternative Expenditures, and Use of Facilities.

E-4. Army-Agriculture.

 a. 23 June 1948. Memorandum of Understanding between the Corps

and the Soil Conservation Service (SCS) (now Natural Resources

Conservation Service (NRCS)) which provides for each agency to keep

the other advised of its current drainage and related water management

activities, exchange technical information, and correlate drainage improvement measures.

 b. 19 March 1959. Agreement between Corps and SCS (now NRCS)

which provides for consultation between the agencies with a view to

reaching a mutually satisfactory decision as to whether the Corps of

Engineers or the SCS (now NRCS) should provide the Federal flood

control assistance desired by local urban areas. Supplemented by

agreement of 23 September 1965.

 c. 13 August 1964. Memorandum of Agreement provides policy

guidelines for the use, development and management of lands under
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E-4

control of the Departments of Army and Agriculture in the vicinity of

Corps water resource projects within or partly within the National

Forest System. Supersedes the agreement of 16 December 1946.

 d. 23 September 1965. Agreement between the Corps and SCS (now

NRCS) provides a basis for establishing responsibilities, policies and

coordination in the preparation of flood protection plans for areas in

which there is a mutual interest, including those affecting urbanized

areas.

 e. 7 January 1983. Memorandum of Agreement for review and

processing of permit applications under Section 404, Section 10, and

Section 103 programs.

 f. 20 May 1986. Memorandum of Agreement between Army and SCS

(now NRCS) provides for cooperation in the execution of emergency

assistance for repair and restoration of non-Federal water control

facilities damaged by floods.

E-5. Defense-Agriculture. 27 March 1963. Memorandum of

Understanding for the conservation of forests, vegetative cover, soil,

and water on lands administered by the Department of Defense.

E-6. Army-Transportation.

 a. 25 April 1969. Agreement between the Corps and the U.S. Coast

Guard (USCG) which provides that the USCG upon prior application will

inspect Corps of Engineers vessels.

 b. 28 January 1970. Agreement on procedures between Bureau of

Public Roads (now known as Federal Highway Administration) and the

Corps for incorporation of betterments at non-Corps expense in the

relocations of highways due to construction of Corps reservoir

projects.

 c. 18 April 1973. Memorandum of Agreement between the Corps and

USCG to clarify areas of jurisdiction and responsibilities under

Federal statutes to regulate certain activities in navigable waters of

the United States. Agreement covers alteration of bridges;

construction, operation and maintenance of bridges and causeways as

distinguished from other types of structures; closure of waterways and

restriction of passage through or under bridges; design flood flows;

and provides for mutual coordination and consultation on projects and

activities in or affecting navigable waters.

 d. 7 September 1976. Agreement between the Corps and USCG

intended to help the parties effectively utilize their resources and

to delineate their responsibilites in carrying out the surveillance

and enforcement of federally contracted ocean dumping activities

associated with Federal navigation projects.

 e. 7 May 1977. Memorandum of Understanding between the Corps and

USCG to clarify the responsibility for safety on the navigable waters

of the U.S. as a result of the Ports and Waterways Safety Act of 1972

(PL 92-340).

 f. 26 November 1984. Memorandum of Understanding between Army

and the Maritime Administration (MARAD) to define those areas of

research, development and engineering activities in which the Corps
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E-5

and MARAD can jointly apply their technical capabilities and to

promote cooperation and integration of their activities in port and

waterway development, navigation projects, and related areas.

 g. 16 October 1985. Memorandum of Agreement between the Corps

and USCG to clarify respective responsibilities for marking and

removal of sunken vessels and other obstructions to navigation.

 h. 23 February 1994. Agreement between the Corps and USCG to

provide the mechanism for cooperative efforts in establishing widearea Differential Global Positioning System (DGPS) navigation coverage

in Corps project areas.

E-7. Army-Environmental Protection Agency (EPA).

 a. 15 April 1971. Agreement on division of responsibility for

providing additional assistance to state and local governments for

enhancing environmental quality and for meeting cost-effectiveness

requirements for investments in pollution abatement.

 b. 22 November 1974. Agreement defines the relationship between

areawide waste treatment management planning conducted by the Corps

under the Urban Studies Program and areawide waste treatment

management planning authorized under Title II of the Federal Water

Pollution Control Act Amendments of 1972 and administered by EPA. The

agreement also acknowledges that the Corps may provide technical

assistance in Section 208 (Public Law 92-500) planning outside the

Corps Urban Studies Program.

 c. 25 March 1976. Memorandum describing ways in which the Corps

can participate in state and areawide water quality planning and

management programs authorized under Section 208 and 303 of Public Law

92-500.

 d. 8 July 1980. Interagency agreement for the Corps to act as

EPA's agent in the construction of sewage treatment facilities under

the Construction Grants Program. The mission normally includes:

review of plans and specs for biddability and constructability, review

of change orders, site inspections of construction, and providing

training and assistance to state personnel and grantees. This

revision of an earlier agreement placed additional responsibility on

the Corps to discover and remedy safety deficiencies.

 e. 3 December 1984. Interagency Agreement which defines the

management and technical assistance the Corps will provide 

EPA for implementation of the Superfund program (responses to problems

of hazardous substances).

 f. 19 January 1989. Agreement concerning the determination of

the geographic jurisdiction of the Section 404 Program and the

application of the exemptions under Section 404(f) of the Clean Water

Act.

 g. 19 January 1989. Agreement concerning Federal enforcement of

the Section 404 Program.

 h. 19 January 1989. Agreement concerning Section 404 Enforcement

Memorandum of Agreement procedures regarding the applicability of

previously issued Corps permits.

 i. 6 February 1990. Agreement to articulate policy and

procedures to be used in the determination of the type and level of
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E-6

mitigation for the Section 404 Regulatory Program.

 j. 11 August 1992. Memorandum of Agreement for review and

processing of permit applications under the Section 404, Section 10,

and Section 103 programs.

E-8. Army-Nuclear Regulatory Commission. 2 July 1975. Memorandum of

Understanding between the Corps and the Nuclear Regulatory Commission

defining the roles each agency shall play in the licensing of nuclear

plants to avoid conflicting and unnecessary duplication of efforts and

of standards related to overall public health and safety and

environmental protection.

E-9. Army-Commerce.

 a. 1947. Interagency agreement between the Corps, U.S. Customs,

and Department of Commerce, Bureau of the Census regarding the

provision of waterborne import, export, intransits, and vessel

movement data to the Corps. 

 b. 17 November 1975. Memorandum of Agreement regarding the use

of the Geostationary Operational Environmental Satellite (GOES).

 c. 2 July 1982. Memorandum of Agreement for review and

processing of permit applications under the Section 404, Section 10,

and Section 103 programs.

 d. 6 September 1985. Memorandum of Understanding between the

Corps and the Department of Commerce on assistance of the Corps in

real estate acquisitions for the National Weather Service.

 e. 31 January 1991. Cooperative Agreement between the Army and

the National Oceanic and Atmospheric Administration to establish a

continuing cooperative nationwide National Marine Fisheries Service

and Corps Habitat Restoration and Creation Program.

 f. 31 January 1994. Memorandum of Agreement between the Army and

the Economic Development Administration (EDA) for the provision of

Corps support on EDA’s Levee Restoration Program.

 g. 21 July 1995. Memorandum of Agreement between the Army and

the National Oceanic and Atmospheric Administration for cooperative

activities and reimbursable technical assistance. Cooperative

activities include policy and regulatory development and

implementation potentially affecting coastal and ocean resources.

 h. 20 October 1998. Agreement concerning the transfer of the

U.S. Foreign Waterborne Transportation Statistics Program between the

U.S. Army Corps of Engineers, Maritime Administration, and U.S. Bureau

of the Census. 

 i. October 1998. National Interest Determination for U.S. Army

Corps of Engineers to receive and use certain Census Bureau

confidential export data including: Access to Shippers Export

Declaration (SED), Outbound In-transit files (7513), SED for Intransit Goods, and hard copy 7513.

E-10. Army-Federal Emergency Management Agency.

 a. 8 June 1973. Memorandum of Agreement with the Office of

Emergency Preparedness (predecessor of FEMA) prescribing policies and

procedures governing reimbursement to the Corps for expenditures in
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30 Jul 99

E-7

providing disaster assistance.

 b. 9 May 1987. Memorandum of Agreement outlining Army and FEMA

responsibilities to cooperatively fund and manage hurricane evacuation

studies.

 c. 29 September 1992. Agreement to establish a mutual

understanding of the responsibilities of the Army and FEMA for

delivering management and administrative assistance in implementing

the National Dam Safety Program.

E-11. Army-Housing and Urban Development. 11 October 1979. 

Memorandum of Agreement on review of permit applications which affect

the urban environment.

E-12. Army-Energy.

 a. 22 November 1980. Memorandum of Understanding between the

Corps and the Department of Energy on promotion of sound hydropower

development.

 b. 2 November 1981. Memorandum of Understanding between the

Department of the Army and the Federal Energy Regulatory Commission

(FERC) on non-Federal development of hydropower at Corps of Engineers

projects.

 c. 26 August 1987. Memorandum of Understanding between the Department of the Army and the Department of Energy on assistance of the

Corps in real estate acquisitions for the Department of Energy.

E-13. Other Agreements.

 a. Army-Federal Inspector, ANGTS. 16 May 1980. Memorandum of

Understanding between the Corps of Engineers and the Office of the

Federal Inspector, Alaska Natural Gas Transportation System. 

Memorandum provides for technical assistance by the Corps in the areas

of frost heave and other cold-region problems.

 b. Multiple agencies. 16 December 1980. Interagency Agreement

for nonstructural damage reduction measures as applied to common flood

disaster planning and post-flood recovery practices. (The signatory

agencies were: the FEMA; the Departments of Agriculture, Army,

Commerce, Health and Human Services, Education, Housing and Urban

Development, Interior, Transportation; the EPA; the Small Business

Administration; and the Tennessee Valley Authority (TVA).)

 c. Army-Tennessee Valley Authority. 12 August 1985. Memorandum

of Understanding covering regulation of waters of mutual concern. It

applies to public activities in the Tennessee River basin for which

both TVA and Army permits are required and activities of TVA for which

an Army permit may be required.

 d. Army-Defense. 18 September 1987. Memorandum of Agreement

providing for reimbursable technical assistance by Army to the Office

of Economic Adjustment, DoD, in connection with study of water

resources in the Federeated States of Micronesia and the Republic of

the Marshall Islands.

 
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E-8

e. Army-Girl Scouts of America. 16 November 1990. Establishes

a framework for cooperation to assist each other in areas of mutual

concern to the extent permitted by law.

 f. Multiple Agencies. 3 December 1990. Memorandum of

Understanding to provide a framework for cooperative activities

necessary to develop, implement, maintain, and enhance a Watchable

Wildlife Program on Federal and State lands, and to assist private

landowners. (The signatories were the Departments of Agriculture,

Interior, Defense and several non-governmental organizations.)

 g. Army-Health and Human Services. 29 January 1991. Sets forth

the relationship between the Corps and the Public Health Service for

emergency planning and response. Establishes procedures whereby each

agency may provide each other with certain services and expertise

relating to the development of disaster response plans.

 h. Army-NASA. 30 October 1991. Agreement defines areas of

mutual interests and develops a framework for cooperative programs

related to NASA's Mission-To-Planet-Earth Program including: data

information and management systems; analytical, modeling and

predictive tools; the development of earth observing instruments and

the conduct of related research investigations.

 i. Multiple agencies. 1 May 1992. Agreement concerning

implementation of the Intermodal Surface Transportation Efficiency Act

of 1991 (ISTEA). Signatory agencies committed to removing any

unnecessary impediments to construction of transportation projects and

to streamline and improve the efficiency of the environmental review

and clearance process. (The signatory agencies were the Departments

of Army and Transportation and the EPA.)

 j. Multiple agencies. 24 November 1992. Agreement to establish

and carry out a coordinated research, development and support effort

related to Geographical Information Systems (GIS) technology and

specifically the Geographic Resources Analysis Support System (GRASS)

software. (The signatories to the agreement were the Corps, the SCS

(now NRCS), the USGS and the National Park Service.)

 k. Multiple agencies. July 1994. Agreement to set forth the

principles for a Coastal America Partnership for Action to protect,

restore, and maintain the Nation's coastal living resources. (The

signatory agencies were the Departments of Agriculture, Air Force,

Army, Commerce, Defense, Energy, Housing and Urban Development,

Interior, Navy, Transportation and the EPA.)

 l. Multiple agencies. 14 July 1994. Agreement establishing a

partnership for Chesapeake Bay ecosystem management. (The signatory

agencies were the Departments of Agriculture, Air Force, Army,

Defense, Housing and Urban Development, Interior, the Defense

Logistics Agency, NOAA, USCG, the Federal Highway Administration,

the Corporation for National and Community Service, the National

Civilian Community Corps, the Susquehanna River Basin Commission, the

Smithsonian Institution, the Commonwealths of Pennsylvania and

Virginia, the State of Maryland, the District of Columbia and the

Chesapeake Bay Commission.)

 m. Multiple Agencies. September 1994. Memorandum of

Understanding to establish a general framework for cooperation and

participation among the cooperators in the exercise of their

responsibilities under the Endangered Species Act. (Signatory

agencies were the Departments of the Interior, Transportation, Army,
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30 Jul 99

E-9

Defense, Agriculture and the EPA).

 n. Multiple Agencies. 9 May 1995. Memorandum of Understanding

to establish a general framework for coordination and cooperation

between the signatory agencies and the Walt Disney Corporation. The

agreement provides a foundation to work in partnership on issues of

common interest and to jointly plan and carry out mutually beneficial

programs and activities consistent with each organization’s mission

and objectives. (Signatory agencies were the Departments of the Army,

Interior and Agriculture and the Walt Disney Corporation).

o. Army-American Waterways Operators. 19 August 1997. 

Agreement establishing a partnership to strengthen the communication

and working relationship between the Corps and the barge and towing

industry toward the mutually-shared objective of improving the

operational and financial efficiencies of the inland waterways

infrastructure.

p. Army-Bass Anglers Sportsman Society. 5 June 1996. Agreement

establishing a framework for communication, cooperative activities,

and research necessary to maintain and enhance the productivity of

sportfishery resources, consistent with other fishery goals on the

Corps waterways, maintain and enhance public fishing opportunities on

the Corps system, and to increase public understanding of the

importance of aquatic environment to sportfish species.

q. Army-Port of Oakland. 23 September 1998. Agreement

establishing a mutual framework governing the feasibility study for

improvements to the Oakland Harbor, California. To provide

appropriate assistance to the Port in the Port’s development of a

feasibility level study for channel deepening and related improvements

at Oakland Harbor, California, for a Federal navigation project

servicing the Port and such other related goods or services as may be

agreed upon in the future. 

r. Army-Appalachian Regional Commission. 6 May 1997. Agreement

establishing the mutual framework governing the respective

responsibilities of the parties for the design of the Cullman Duck

River Water Supply Dam, Cullman, Alabama, and related acquisition

activities.

s. Army-U.S. Customs. 3 December 1997. Agreement regarding

exchange of waterborne in-bond data and acceptance of responsibility

regarding disclosure of information.

t. Army-U.S. Customs. 22 April 1998. Agreement that

confidential or proprietary waterborne transportation data received

from Customs will be used only for the National Waterborne

Transportation Statistics Program (including release to the Maritime

Administration) and internal Corps use. In event of unauthorized

release by the Corps, the Corps will intercede on Customs behalf and

assume responsibility.
F-1

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30 Jul 99

APPENDIX F

INDEX

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

Ability-to-pay....................................... 6-3d(4),5f,8

Access Channels...................................... 12-6 

Access Roads......................................... B-88,131

Active Projects...................................... 8-4a(1)

Advanced Funds....................................... 8-5

Advance Maintenance Dredging......................... 12-23 

Aesthetic Design..................................... 9-5

Agricultural Drainage................................ 13-9b 

Agricultural Water Supply............................ 18-2i

Aids to Navigation................................... 12-11

Air Pollution Control, Federal Facilities............ B-107

Alaska Hydroelectric Power Fund...................... B-136

Alaska Power Administration.......................... 16-5

Alcoholic Beverages.................................. 17-6d

Allocation of Costs.................................. 5-11

16-3

17-5

18-2c 

Alternative Plans.................................... 3-1a 

 5-6a(3),

 7d(1)(c)

12-3h

Anchorages........................................... B-34

Appropriations....................................... 8

Appropriations Committees............................ 3-3d

 8-1d,2c,6b

23-6a,

Aquatic Plant Control................................ 20

23-10

 B-79,88,94

 B-158,165 

Archaeological Preservation and Salvage.............. 5-7c(2)g 

 B-82,126,147

Architect-Engineers, Use of.......................... 4-4c(2) 

 9-9

Assignment of Studies................................ 7-2a

ASA(CW).............................................. 2-2a

Authorization Committees............................. 2-1a and b

 5-1

 7-3

Bank Protection...................................... 2-1b

14-8a 

15-3

Barge Fleeting Areas................................. 12-1b,7

Barrier Act, Coastal Resources....................... B-157

Beach Erosion Control................................ 2-1b

12-22

14-1

Beach Nourishment.................................... 11-2e 

12-22

14-1d 

 B-77,136

Bends, Widening of................................... 9-4b

 B-34
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-2

Benefits, Navigation.................................. 12-3

 B-96

Benefits, Environmental Measures..................... B-165

Benefits, Flood Damage Reduction..................... 13-1

 B-53

Benefits, Hydroelectric Power........................ 16-2

Benefits, Inland Waterways........................... 12-3,4

Benefits, Land Enhancement........................... 12-21b 

Benefits, Recreation................................. 17-4

Benefits, Shore Protection........................... 14-5 

Berthing Areas....................................... 12-6 

Board of Engineers for Rivers and Harbors (BERH)..... 2-1c

 4-2d(2)

 5-13b

 7-2c 

14-1a

 B-23,32,35

Bonneville Power Administration...................... 16-5 

23-8b

Borrow Areas......................................... 6-10c(2)

Bridge Alterations for Flood Control................. 10-4a 

 B-66

Bridge Alterations for Navigation.................... 10-4b

 B-61

Bridges Across Public Works.......................... B-133

Bridges on Federal Dams.............................. B-81

Bridges, Transfer Authority.......................... B-71

Budgetary Information, Disclosure.................... 8-1f 

Budgeting............................................ 4-4c 

 8

Bureau of Census, Bureau of Customs.................. 12-13a

Bureau of Mines...................................... 23-8b

Bureau of Reclamation................................ 2-3b

23-8b 

24-7

California Debris Commission......................... B-20,165 

Capabilities......................................... 8-1e 

Cemeteries........................................... 10-2d(2) 

Continuation of Studies.............................. 5-2a(3)

Channels, Navigation................................. 9-4b 

12-1f,19,20

Charter Fishing...................................... 12-4a(1)

 B-109

Charges for Water Withdrawal......................... 18-2d 

Civil Preparedness Lead Agency (FEMA)................ C-29 

Civil Works Program.................................. 2-2

 4

Clean Water Act...................................... 2-1d(1)

 3-5

18-3a 

22-2,3,4

24-12b(2)

 B-140

Coastal Engineering Research Board (CERB)............ 4-2d(1)

Coastal Engineering Research Center.................. 4-2e(2)

14-1a

 B-48,90

Coastal Projects, Monitoring of...................... 11-14
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30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-3

Coastal Barrier Resources Act........................ 24-17 

 B-157

Coastal Zone Management Act.......................... 22-3g

24-18

 B-119,134

 B-143,151

Coast Guard.......................................... 11-2a(3)

12-7,14 

22-2a(2) 

 B-112,144,149

Cold Regions Research and Engineering Laboratory

 (CRREL)............................................ 4-2e(4) 

Collection of Data................................... 5-13

Command Goals and Objectives......................... 4-1a

Command Inspections.................................. 4-1b

Command Management Review (CMR)...................... 4-4a

 9-7

Commercial Fishing Benefits.......................... 12-3

Community Development Program........................ 24-6

 B-128

Concessions.......................................... 17-6a

Condemnation......................................... 10-2b,3c

19-3b

 B-15,36,37

Condition Surveys.................................... 12-19

Consequential Damages................................ 1-3

Conservation Pool.................................... 10-2a

Construction......................................... 10

 B-11,38

Construction Deficiencies............................ 11-4 

Construction Engineering Research Laboratory (CERL).. 4-2e(3)

Construction of Flood Control Projects by

 Non-Federal Interests.............................. 13-18

Consultants, Use of.................................. 9-10

 B-71

Contingencies........................................ 5-7c

Continuation of Planning and Engineering (CP&E)...... B-136,165

Continuing Authorities Program....................... 2-1b

 5-1,2d,12

 6-3d(3) 

10-1b

Contracting Out...................................... 3-9

 4-4a(2)

10-6 

Contributed Funds.................................... 8-5

 B-34,45,55

Conveyance Facilities for Water...................... 18-2h 

 B-115

Coordination with States and Agencies................ 7-2d

Cost Allocation...................................... 5-11

Cost Estimating...................................... 5-7c

Cost Sharing......................................... 6

 B-165 

Cost Sharing Exceptions.............................. 6-3e(1)

Cost Sharing for Aquatic Plant Control............... 6-11

21-1 

Cost Sharing for Beach Erosion Control............... 6-10 

14-1c 
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30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-4

Cost Sharing for Fish and Wildlife Enhancement....... 6-14 

Cost Sharing for Fish and Wildlife Measures.......... 6-13

19-5

Cost Sharing for Flood Control....................... 6-5

13-7,10

Cost Sharing for Hydroelectric Power................. 6-6 

16-3

Cost Sharing for Hurricane and Storm Damage Reduction 6-10 

14-3c 

Cost Sharing for Irrigation.......................... 6-8 

18-2e and i

Cost Sharing for Navigation.......................... 6-12 

12-6

Cost Sharing for Pacific Territories................. 6-3e(2)

Cost Sharing for Planning Studies.................... 5-2a(2) 

12-6a

Cost Sharing for Recreation.......................... 6-4c,9

17-5

Cost Sharing for Water Quality Enhancement........... 6-12

Cost Sharing for Water Supply........................ 6-7,8

Council on Environmental Quality (CEQ)............... 2-2d 

 3-10a

24-2 

Courts............................................... 2-4

Crediting............................................ 5-12f

 8-6

10-1f,4b(3)

13-12

 B-165

Cultural Resources................................... 3-4

19-37,38,39

21-3e

Cumulative Effects................................... 3-1d

Damages, Due to Negligence........................... 11-8 

 B-123

Damages, Project Related............................. 11-8,11 

12-25

 B-66,100

Dam Safety........................................... B-114,165

Dam Safety Assurance................................. 11-6

22-3j 

Danger Zones......................................... 12-15

21-2a(1)

Deauthorization of Projects.......................... 3-3b

 5-12b

 7-5b

 B-165,170

Deauthorization of Studies........................... 5-1c

 7-5a

 B-165

Deepwater Ports...................................... B-130

Deferred Payments.................................... 6-4a(1),5,15

Deferred Projects.................................... 8-4a(2)

Deficiencies, Design or Construction................. 11-4

Degree of Protection................................. 9-4a

Department of Agriculture............................ 2-2c

 5-10,13,14

 B-74,87
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-5

 B-162,169

 E-4,5

Department of Commerce............................... 2-2c

19-1

22-3g and h

24-11,18,23

 E-9

Department of Energy................................. 2-2c

16-5,8

24-22

 E-12

Department of Housing and Urban Development (HUD).... 2-2c

24-6

 E-11

Department of the Interior........................... 2-2c

 6-8

10-2a

11-1i

16-3

18-5b 

19-17

24-10,11

 B-135,138

 B-152,159

 E-1,2,3

Department of Transportation (DOT)................... 2-2c

11-10b

 B-96,130,167

 E-6

DOT,Corps Functions Transferred to................... B-96

Design Deficiencies.................................. 11-14

Design Flood......................................... 13-4

Directorate of Civil Works........................... 4-2b

Disaster Assistance.................................. 13-15

 B-137,165

Discharge of Dredged or Fill Material................ 3-5b

Discontinuation of Maintenance, Navigation Projects.. 11-13

Discount Rate........................................ 5-7f(3)

Disposal Areas....................................... 11-2a(4),5 

 B-136 

Disposal Areas for the Great Lakes................... B-109,170

Disposal of Property................................. 10-11

11-10 

13-2c

Division Review...................................... 7-2b

Donations of Lands................................... 10-2b

Donations of Materials............................... 11-12 

Drainage Improvements................................ 13-9

Dredging Excess Depths............................... B-100 

Dredged Material Disposal............................ 12-21,22 

 B-116

Dredged Material, Use of............................. 10-8

12-21b 

 B-136,165

Dredging Statistics.................................. 12-12d

Drift Removal........................................ 12-16

 B-136,189 

Drought............................................ 18-5d
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-6

Easements............................................ 10-2b and d

11-9

 B-57

Emergency Activities................................. 14-8

Emergency Bank Protection............................ 2-1b

 6-5e

11-2b(3)

14-8a

Emergency Clearing for Navigation.................... 6-4d

11-2a(3)

Emergency Flood Control Work......................... 6-5a 

13-15 

14-8b

 B-62,76

Emergency Water Supply............................... 18-5a 

 B-123,137,165

Endangered Species................................... 19-6 

24-11 

 B-121,146

 B-148,156

Energy Conservation.................................. 11-15 

21-3m 

EFARS................................................ 4-4a

ECs, EPs, ERs, ETLs.................................. 4-4a

 23-9,10

Engineer Topographic Engineering Center (TEC)........ 4-2e(7) 

Entitlement Lands.................................... B-135

Entrance Fees........................................ B-91,100 

Environmental Advisory Board......................... 4-2d(4)

Environmental Assessment (EA)........................ 7-1b

20-2b

Environmental Design................................. 3-10

 9-5

Environmental Dredging............................... 11-2a(5)

Environmental Impact Statement (EIS)................. 3-2,5

 7-1b,2c

20-2b

24-2

Environmental Protection Agency (EPA)................ 2-1c

 7-2c 

 9-10a 

11-2a(5),12a

18-3 

20-2 

21-2,3

23-10b

24-15,16,17

 B-107

 D-7

Environmental Quality (EQ)........................... 2-3a and b

 5-6a(4),8 

Estimating Costs..................................... 5-7c

Estuarine Protection Act............................. 21-3b(5)

 B-99

Evacuation........................................... 10-3d 

13-5,14c 

 B-58 

Exceptions to NED Plan............................... 5-9a
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-7

Executive Orders..................................... C 

Executive Order 11988, Flood Plain Management........ 3-6

13-2b and c

21-3k 

 C-20

Executive Order 11990, Protection of Wetlands........ 3-7

19-13

 C-22 

Executive Order 12898, Federal Actions to Address

 Environmental Justice in Minority Populations and

 Low-Income Populations.............................. 3-11,C-50

Executive Order 13007, Indian Sacred Sites........... 3-12,C-52

Fast-Land Channel Cuts............................... 10-4a and b

Feasibility Cost Sharing Agreement (FCSA)............ 5-12a

Feasibility (Survey) Reports......................... 7-1

12-25a

 B-165

Feasibility Studies.................................. 4-4a 

 5-2a,12 

 7-1d

Feature Design Memoranda............................. 9-1b

Federal Agencies, Related Programs................... 24

Federal Emergency Management Agency (FEMA)........... 13-1a,13,15b

24-19

 C-29,34

 E-10

Federal Energy Regulatory Commission (FERC).......... 16-3,4a,6,7,9

24-12

 B-42 

 E-3

Federal Facilities, Flood Plains..................... 13-2c

Federal Highway Administration....................... 23-8b

Federal Water Power Act.............................. B-42

FERC Licenses........................................ 6-6 

16-5c

24-12 

Fees, Public Use..................................... 17-5d

Field Operating Activities (FOAs).................... 4-2c,4

Financial Capability Statement....................... 5-12a

Financial Costs...................................... 5-7c

Finding of No Significant Impact (FONSI)............. 3-2

Fish and Wildlife.................................... 10-1c,1d(2)

11-1h,7,9b

17-1,6b(2)

19-16,17,20,21 

21-3c 

 B-63,92,123

Fish and Wildlife Conservation Act................... B-150

Fish and Wildlife Coordination Act................... 6-1a(4)

11-1i 

19-17

21-3c 

 B-68,80

Fish and Wildlife Enhancement....................... 6-14

10-1d(2)

11-2f

17-1b(4)

 B-165
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-8

Fish and Wildlife Mitigation......................... 5-7c,7f

 6-13 

19-20,21

 B-165

Fish and Wildlife Report............................. 7-1a(4)

Fish and Wildlife Service............................ 9-10a

19-17,18

21-3c

23-8b

24-11,19

Fish Passage Facilities.............................. B-16

Fletcher Act......................................... 12-3a 

 B-49

Fleeting Areas....................................... 12-1b,8 

Flood Control........................................ 9-4a

11-2b 

13

 B-35,53,58

Flood Damage Prevention/Reduction.................... 13 

Flood Emergency Response and Recovery (P.L. 84-99)... 11-2b(2) 

13-15 

14-8b

18-5a

 B-76

Flood Insurance...................................... 13-10a and d,13

24-21

 B-98,104,122

 B-128,139,157 

Flood Plain Information Studies...................... B-83

Flood Plain Management (FPM)......................... 3-9

13-2

21-3k

 B-123,165,170

Flood Plain Regulation............................... 13-10d,14a

Floodproofing........................................ 3-9

13-5

Flood Warning........................................ 13-5

Flowage Easements.................................... 10-2a 

Forest Management.................................... 11-1h 

 B-84

Forest Service....................................... 24-4,9 

Freeboard............................................ 9-4a

10-2a 

13-5

Freedom of Information Act........................... 5-14

 B-95,129

Future Power Provisions.............................. 16-8

 B-32,58

Future Recreation Provisions......................... 17-3d and f

Future Water Supply Provisions....................... 10-1d(4)

 B-79,111

Gambling............................................. 17-6e

GEneral Design Memorandums (GDMs).................... 9-1a(4)

General Navigation Features (GNF)......... 6-4a

10-4b

12-6

General Services Administration (GSA)................ 11-10

Government Structures................................ B-79,94
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-9

Green Book........................................... 2-3a

Groundwater.......................................... 13-9d 

18-2f

 B-165

Harbor Lines......................................... B-8,10

High Seas Demarcation Lines.......................... B-149

Hired Labor.......................................... 10-6c 

Historical Preservation.............................. 3-4

 5-7c(2)(g)

21-3e 

24-18

 B-82,97,126

 B-152,165

Housing of Project Personnel......................... 10-9

HQUSACE.............................................. 4-2a,4

Hurricane Protection................................. 14-3 

 B-79

Hurricane Studies.................................... B-75

Hydroelectric Power.................................. 16 

24-12 

 B-42,63

Hydroelectric Power Fund, Alaska..................... B-136

Hydrologic Engineering Center (HEC).................. 4-2e(1)

23-6a

Ice Control.......................................... B-165

Inactive Projects.................................... 8-4a(3)

Indian Affairs....................................... 1-2d

21-3e

Indian Sacred Sites.................................. 3-12

Inland Waterways..................................... 6-4b

10-3a(2) 

12-4,6

Inland Waterway Trust Fund.......................... 12-12b

 B-145,165 

Inspection of Local Protection Projects.............. 11-2c

Issue Resolution Conferences (IRCs).................. 4-4a

 5-2a(3)

Institute of Water Resources......................... 4-2e(1)

23-7a

Intensification Benefits............................. 13-14b 

Interagency Agreements............................... 2-2f 

 E

Interdisciplinary Planning........................... 5-6d(1)

Interest Rate........................................ 5-7f(3)

 B-123

Intergovernmental Cooperation Act.................... 22-2 

 B-103

International Boundary and Water Commission (IBWC)... 2-2e(2)

International Joint Commission (IJC)................. 2-2e(1)

International Streams................................ 1-2d

Interstate Compacts.................................. 1-2g

 2-4b

 4-3

 B-31

Irrigation........................................... 6-8 

18-2e and i

 B-24,63,165

Joint Costs.......................................... 5-11
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-10

Joint Studies of Watersheds.......................... B-87

Land Acquisition..................................... 5-7c(2)(h)

 B-83,109,165

Land and Water Conservation Fund..................... 24-5

 B-91

Land Disposal........................................ 10-11

Land Enhancement..................................... 12-21b 

Land Exchanges....................................... B-57

Lands, Entitlement Payments to Local Governments..... B-135

Lands, Forest Service................................ 24-9

Lands for Recreation................................. 10-3a(3) 

 B-92

Lands for Fish and Wildlife Mitigation............... 6-13

19-3 

Lands for Flood Control Projects..................... 6-5 

10-2,3

Lands for Navigation Projects........................ 6-4 

Lands for Hurricane and Storm Damage Reduction

 Projects........................................... 6-10

10-3a(2)

 B-170

Lands for Port Developments.......................... 11-10f

12-9,10

 B-83

Lands for Recreational Developments.................. 6-9 

Lands for Reservoirs................................. 10-2

Lands for Shore Protection Projects.................. 10-3a(1)

Law Enforcement...................................... 11-1g 

 B-136

Leases of Project Lands.............................. B-62,66,86

Legislative Landmarks (Corps Civil Works)............ 2-1c 

Legislative Phase I Studies.......................... 5-2b 

 7-1a(2),3c

Letters of Intent.................................... 5-12a

17-1b(1),3

Levees and Floodwalls................................ 13-6c

Life Cycle Project Managers.......................... 4-4b

 5-6d(1)

Local Cooperation.................................... 1-4

 5-12

10-1,13

11-2g 

12-6 

13-8,10

Local Cooperation for Beach Erosion Control.......... 14-6 

Local Cooperation for Flood Control.................. 13-8,10

 B-53,58,62

Local Cooperation for Navigation..................... 12-6 

Local Cooperation for Streambank Protection.......... 15-3c 

Local Cooperation, Use of Other Federal Funds........ 10-1e

Local Interests, Transfer of Projects to............. 10-12

Local Protection Projects............................ 11-2c 

13-10 

Locally Preferred Plans.............................. 3-1f

 5-9b

 B-165

Location Benefits.................................... 13-14b 

Lock and Dam Replacements............................ 12-24
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-11

 B-27

Lock Statistics...................................... 12-12b

Maintenance of Flood Control Projects................ 11-2b,c and d

Maintenance of Navigation Projects................... 11-2a,13 

12-1f,23 

 B-100,116,123

Maintenance of Shore Protection Projects............. 11-2e

14-1c

Major Rehabilitation Program......................... 11-3 

Marine Sanctuaries................................... 21-2f,

3e,3h,4c

24-12b(3)

 B-118,160

Marketing Corps-Produced Power....................... 16-5 

Mineral Rights....................................... 5-7c(2)(h)

10-2b

Minimum Facilities, Recreation....................... 17-3 

 B-92 

Minimum, Low-Flow Releases........................... 16-8c 

Mississippi River Commission (MRC)................... 4-2d(3)

 B-13,43

Mississippi River and Tributaries (MR&T)............. 11-2d 

 B-47

Mitigation Banks for Corps Civil Works Projects...... 3-18

Mitigation, Cultural Resources....................... 3-4

Mitigation, Fish and Wildlife........................ 5-7c(2),7f(3)

 6-13 

19-20,21

Mitigation of Damages from Project 

 Construction and Operation......................... 6-1c

 11-8 

 B-66

Mitigation of Shore Damages due to Navigation

 Projects........................................... 2-1b

12-25

 B-100,165

Mitigation, Power Plant Releases..................... 16-8b 

Mobilization......................................... 3-11

Modification of Projects............................. 18-2

Mud Slides........................................... B-104

Multiple Use......................................... 12-7c

National Economic Development (NED).................. 2-3a and b

 5-6,7 

12-1,3,22

National Dam Safety Act.............................. B-114 

National Environmental Policy Act (NEPA)............. 2-1d(5),2d,4c

 3-2,7

 7-1b and c,2c

24-2,13

 B-105

National Estuary Program............................. 24-22

 B-166

National Flood Insurance Program..................... 13-10a and d

13-13

National Historic Preservation Act................... B-97,152

National Marine Fisheries Service.................... 19-17,18a,b,

and c

21-3c
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-12

23-8b

24-11 

National Park Service (NPS).......................... 3-4 

 9-10a

24-4,5,20

National Weather Service............................. 11-10b

13-4c

24-23

National Recreation Areas............................ 24-8

National Resources Conservation Service (NRCS)....... 2-3b

24-8b

24-3,13,14

National Trails System............................... 24-10

 B-102

National Wild and Scenic Rivers System............... 24-4

Native American Tibal Governments.................... 2-2e(4)

Naming Projects...................................... 5-1b

Navigable Waters of the U.S.......................... 1-2a

12-2

21-4

Navigation........................................... 12 

21-3n 

 B-5,109,123

Navigation Channels.................................. 9-4b

Navigation Projects, Condition Surveys............... 12-19

Navigation Projects, Induced Shore Damages........... 12-25

 B-100,165

Navigation Servitude................................. 1-3

10-4b(5)

11-8

12-1c

NED Benefits......................................... 5-7d

12-3,4,

13-14

NED Plan............................................. 5-7f(1) 

Net Benefits......................................... 5-7f 

12-3e

New Starts........................................... 8-3 

Non-Corps Reservoirs................................. B-63

Non-Federal Hydropower at Corps Sites................ 16-9 

24-12b 

Non-Federal Hydropower Sites......................... 16-10

Nonstructural Measures for Flood Control............. 2-1d(3)

 6-5b 

10-3d(1) 

13-3b,7,10

17-3a

 B-123

Nonstructural R&D.................................... 23-6f

Notice of Intent..................................... 3-2a

OCE.................................................. 4-2a

Ocean Dumping........................................ 12-21c

21-2f 

 B-118,124

Office of Management and Budget (OMB)................ 2-2b

 5-6c,13b

 7-2

 8-1,2b(1),3
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-13

 9-3a

11-1 

12-13a

14-1c(1)

22-3a

23-7a

 C-12,32

OMB Budget Circulars................................. 3-9

22-5

 D

Off-Road Vehicles.................................... 17-6b(2)

 C-10,21

Operations, Maintenance and Replacement.............. 5-7c(2)(i)

 8-2c(1)(c)

11

Operations and Maintenance Costs for Water Supply.... 18-2b

Operations and Maintenance Manual.................... 10-12

Operations and Maintenance of Mitigation Features.... 19-21c 

Operations and Maintenance of Recreation Faci1ities.. 17-5b 

Opportunity Cost..................................... 5-7c

Opposition of a State................................ 3-3

Other Social Effects (OSE)........................... 2-3b

 5-6a(4)

Overdepth Dredging................................... 12-23

Payment, Local Cooperation........................... 5-12d 

Performance Measurement System....................... 12-13c

Periodic Letters..................................... 4-1c

Periodic Beach Nourishment........................... 11-2e

14-1d 

 B-77,136,165

Period of Analysis................................... 5-7a

Permits.............................................. 3-5

12-11c

21-2 

24-18 

 B-22,116,

 118,119

 B-136,139,166

Pest Management, Pesticide Control................... 11-2a(4),11

 B-117

Planning Assistance to States........................ 5-4 

 B-123,136,153

Planning, Cost Sharing for........................... 5-2a(2) 

12-26a

Planning, Engineering and Design..................... 5-2e

Planning Guidance Notebook........................... 5-5

Planning Studies..................................... 5

12-26a

Planning Reports..................................... 7

Policies, Corps...................................... 12-26a

Ports and Waterways Facilities....................... 12-12c

Port Series.......................................... B-39

Post Authorization Change (PAC) Notification Report.. 9-3

Preauthorization Studies and Reports................. 5-12a

 7-1,2

12-26a

16-9

Preconstruction Engineering and Design (PED)......... 5-3
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-14

 7-4

 9

12-5b

Price Level.......................................... 5-7b

Prime Farmland....................................... 24-13

Principles and Guidelines (P&G)...................... 2-3b

 5-5,6,11d

 7-1b and c

12-1,3

Principles and Standards............................. 2-3a

Private Beaches, Protection of....................... 14-1c(2)

Private Faci1ities, Navigation Access to............. 12-1b,7

Private Use of Project Lands......................... 11-1n,9

17-6c

 B-154,165 

Probable Maximum Flood (PMF)......................... 13-4d 

Programming, Budgeting and Appropriations............ 8

Progressive Development.............................. 12-7d

Project Authorization................................ 7-3

 B-43

Project Authorization Expiration..................... 7-5b(1)and 2

 B-62

Project Classification............................... 8-4

 Project Cooperation Agreement (PCA)........... 5-12

 8-5b

10-1c

11-2b(1)

Project Construction by Others....................... 5-12d

 8-6

12-26

13-12

Project Cost Estimate Increases...................... B-165,170

Project Deauthorization ............................. 3-3b

 5-12b

 7-5b 

 B-123,165,170

Project Housing...................................... 10-9

Project Lands, Disposal of........................... 10-11

11-10 

Project Lands for Port Development................... 12-10 

Project Lands, Leases for Other Use.................. 11-1,9

Project Life......................................... 5-7a

Project Management................................... 11-1

 B-158,163

Project Managers (PMs).............................. 4-4b

Project Modifications................................ 9-3

 B-165

Project Names........................................ 5-1b

Project Recommendations.............................. 5-13

 7-1b

Public Access........................................ 11-1

Publications......................................... 5-15

 B-78

Public Interest Review............................... 21-3a

Public Law 84-99..................................... 11-2b(2) 

13-15 

14-8b

18-5a
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-15

 B-76

Public Law 89-72..................................... 17-1b

 B-92

Public Law 566 Program............................... 24-3

 B-74

 C-1

Public Notice........................................ 7-2c

Public Participation................................. 3-1e

 5-6d(2)

Public Ports......................................... 12-10

 B-83

Public Terminal...................................... 12-6 

 B-38

Public Use of Beaches................................ 14-1b(2)

Public Use of Project Lands.......................... 11-9

Public Works Committees.............................. 2-1a and b

 5-1 

 7-3

Pumped Storage Power................................. 16-6

Railroad Bridges..................................... 10-4a(2),b(1)

Real Estate Acquisition.............................. 10-2,3

24-20,21

 B-83,109

 C-37

Real Estate Disposal................................. 10-11

11-10

12-10 

 C-37 

Reclamation Acts..................................... 1-2b 

25-7 

 B-24,59,155

Reconnaissance Phase of Study........................ 5-2

 7-1c

16-9a

Reconnaissance Report................................ 21-1a,2a

Record of Decision (ROD)............................. 3-2b

 7-2c

Recreation........................................... 10-1c and d(1)

11-1e,7

14-2

17 

21-2e 

24-5

 B-63,86,92

Recreational Navigation.............................. 6-4c 

12-6 

 B-49

Recreation Developments, Completed Projects.......... 17-3d

Recreation Developments, Non-Reservoir Projects...... 17-3a 

 B-88

Recreation Developments, Nonstructural Projects...... 17-3a 

Recreation Developments, Shore Protection Projects... 17-3b

Recreation, National Areas........................... 24-8

Recreation on Forest Service Lands................... 24-9

Regional Commissions................................. 4-3

Regional Economic Development (RED).................. 2-1d(4),3

 5-6a(4)(c)

12-3d 
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-16

 B-109,136

Register of Historic Places.......................... B-152

Regulation of Flood Plains........................... 13-2,3b,7,10d

Regulation of Non-Corps Reservoirs................... B-63

Regulatory Program................................... 2-4d

 3-5

21

 B-22,25,73

 B-116,140

Reimbursement by Non-Federal Interests............... 17-5c 

18-2a and d

 B-123

Reimbursement for Work of Others..................... 8-6

12-1f,26

 B-100,165

Release of Information on Corps Studies.............. 5-14

Relocations.......................................... 5-7c(2)(f)

 6-4a 

10-1c,2d,4

12-6

13-10

Relocations Assistance............................... 5-7c(2)(f) 

10-1c,3c 

 B-110,167

Relocations of Bridges............................... 10-4

Relocations of Cemetaries............................ 10-2d(2)

Relocations of Towns................................. 10-2d(3)

Relocations of Utilities............................. 10-4a(3),b(3)

Relocations Services of Owners....................... 9-10b

Relocations Special Authority........................ 10-10

 B-79,94

Removal of Facilities................................ 10-4a(4),b(4)

Rental Receipts...................................... 11-1

Report Assignments................................... 7-2a

Report Recommendations............................... 5-13

Report Review........................................ 7-2

Reports Reviewed by Local Entities................... C-33

Reports Reviewed by OMB.............................. 5-13b 

 7-2e

Reports, Sales of.................................... 5-15

Research and Development (R&D),Civil Works........... 23

Reservoir Clearing................................... 10-7

Reservoir Lands...................................... 10-2

Reservoir Releases................................... 9-6

13-6a

16-8

 B-170

Reservoir Salvage Act................................ 3-4

 B-82 

Reservoir Water Supply Storage....................... 18-2

Reservoirs........................................... 13-6a

Reservoirs, Changes in Water Control Plans........... 11-7

16-8 

17-3e

Reservoirs, Non-Corps................................ 13-16

Restrictive Interest, Use............................ 12-7

14-1c(2)

 B-63
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-17

Retaining Works...................................... 10-8

11-2a(4) 

12-6 

Risk and Uncertainty................................. 5-7e 

River Basin Commissions.............................. 2-2c

 4-3 

 B-93

 C-31

Road Relocation Standards............................ 10-2d(1)

 B-88,123

Road Rights-of-Ways.................................. B-57

Roads Across Public Works............................ B-133

Roads Used for Access................................ B-88,131

Roads Used for Construction.......................... B-83

St. Lawrence Seaway.................................. 12-12d 

Sale of Corps Publications........................... 5-15

12-18

 B-79

Seaplane Operations.................................. 11-1m 

Section 22, Planning Assistance to States (P.L.

93-251)...................................... 5-4

Section 3 Projects................................... 6-4d 

11-2a(3)

 B-64,165

Section 14 Projects.................................. 2-1b

11-2b(3)

14-8a

15-3 

 B-66,123,165

Section 103 Projects................................. 2-1b

 B-88,109,165

Section 107 Projects................................. 2-1b

 B-83,109

 B-136,165

Section 111 Projects................................. 2-1b

12-25

 B-100,165

Section 205 Projects................................. 2-1b

 B-70,123,136

 B-154,165

Section 208 Projects................................. 2-1b

 B-56,123,165

Section 201, 1965 Flood Control Act.................. 2-1b

 7-3b 

 B-94,136

Section 215, 1968 Flood Control Act.................. 8-6

26-100,165,170

Section 216, 1970 Flood Control Act.................. 5-2d

16-9c

 B-109

Section 216 Reports.................................. 7-1a(3),(4)

Section 221, 1970 River and Harbor Act............... 10-1

 B-109,111,165

Sensitivity Analysis................................. 5-7e

12-3f 

Separable Costs-Remaining Benefits................... 5-11

16-3
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-18

17-5a

 C-3 

Separable Elements................................... 6-3

Sewage Treatment Plants.............................. 11-1j 

 B-123

Sharing Responsibility............................... 1-4,5

 B-63

Shore Damages Induced by Navigation Projects......... 12-24 

 B-100,165

Shore Damages........................................ 14-1b

Shore Protection Projects............................ 11-2e

Single Purpose Water Supply.......................... 18-2g

Single User.........................................e 12-7 

13-11 

Small Beach Erosion Control Projects................. 2-1b

Small Business....................................... 10-6d

Small Flood Control Projects......................... 2-1b

Small Navigation Projects............................ 2-1b

Small Reclamation Projects........................... 24-7 

Snagging and Clearing for Flood Control.............. 2-1b

 B-56

Snagging and Clearing for Navigation................. 2-1b

 B-64

Social Effects....................................... 2-1d(4),3

Soil Erosion Control of Project Lands................ 11-1k

Southeastern Power Administration.................... 16-5

Southwestern Power Administration.................... 16-5

Standard Project Flood (SPF)......................... 13-4b

State and Agency Review.............................. 7-2d

State Participation in Studies....................... 5-6d(3)

Streambank Erosion Control........................... 15 

 B-123

Streambank Protection................................ 2-1b

11-2b(3)

14-8a

 15-3

Streamflow Measurements.............................. B-29

Streamflow Regulation................................ 18-3b,4c

 B-116

Structural Flood Control Measures.................... 13-3b,6

Study Deauthorization................................ 5-1c

 7-5a

Subsistence Fishing.................................. 12-4b

Substitute Facilities................................ 10-2d(1)

Superfund Program.................................... 24-15

 C-38

Support for Others................................... 22

Surface Mining Control Act........................... B-138

Surplus Water........................................ 18-2d

 B-63

Survey Reports, Contents of.......................... B-27,33,35,41

 B-52,165

Survey Studies and Reports........................... 5-2a(1)

 7-1a(1)

 8-2c(1)(a)

 B-66

Swampbuster Act...................................... 24-14

 B-162
EP 1165-2-1

30 Jul 99

Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-19

Systems Analysis..................................... 12-3g 

Technical Assistance................................. 13-2a 

14-7 

15-5 

24-6 

 B-123,165

Technical Managers (TMs)............................. 4-4b

Tennessee Valley Authority (TVA)..................... 2-3b

11-10

23-10b

 B-46

 D-13c

Trails............................................... 17-6b 

24-10 

 B-102 

Transfer of Projects to Local Interests.............. 10-12

Treasury, U.S........................................ 5-7f(3)

 6-6,8

16-3

17-5d

Truman-Hobbs Act..................................... 10-4b

 B-61,96

Two Phase Authorization.............................. B-123

Two Phases of Planning............................... 5-6c

 7-1c

Unemployed or Underemployed Labor Resources.......... 5-7d(2)

Unique Farmland...................................... 24-13

Unit-Day Recreational Values......................... 17-4b

Urban Drainage....................................... 13-9c 

 B-165

Urban Studies........................................ 13-7 

User Charges and Fees, Navigation.................... 12-12 

 B-165

User Charges and Fees, Recreation.................... 14-1b(2)

17-1b(5),5d

 B-91,92,100

 B-113,120,127

 C-3

Utility Relocations.................................. 10-4a(3),b(3)

12-6

 B-165

Utility Relocations for Navigation................... 6-4a

Value Engineering.................................... 9-8

Vessel Data.......................................... 12-12a

Visitor Centers...................................... 11-1b

Volunteers........................................... B-158,163

Washington Level Review.............................. 7-2c

Waterborne Commerce.................................. 12-3a

Waterborne Commerce Information Release.............. 12-12a,B-165

Waterborne Commerce Non-Compliance: Penalties........ 12-12a,B-165

Waterborne Commerce Statistics....................... 12-12a 

 B-18,30,43

Waterborne Commerce Statistics Center................ 4-2e(1)

Water Control Plans.................................. 18-3b,5c and d

Water Quality........................................ 3-5

 9-5 
EP 1165-2-1

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Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-20

11-7

18

21-3d 

 B-69,72,85,116

Water Quality Certificate............................ 3-5b

10-5

12-21a

Water Quality Storage................................ B-85,116,123

Water Resource Council (WRC)......................... 2-2c,3a

 4-3

13-2c

 B-93

 C-12,32

Water Resources Development Act (WRDA) of 1986....... 2-1c

 6-2 thru 19

 B-165

Water Resources Support Center....................... 4-2e(1)

Water Rights......................................... 5-7c(2)(h)

18-4

Water Supply......................................... 10-1c 

18 

21-3l 

 B-63,79,115,165

Water Supply, Emergency.............................. 13-15a

18-5a 

 B-123,137

 E-2a 

Water Supply, Future................................. 10-1d(3)

18-2a

Water Supply Storage................................. B-79,89

Watershed Joint Studies.............................. B-87 

Watershed Perspective................................ 3-20

Watershed Protection................................. 24-3

 B-74

Waterways Experiment Station (WES)................... 4-2e(2)

11-14

20-1c

Waterway User Charges and Fees....................... 12-12 

Well-Being of People................................. 2-1d(4)

 B-109

Western Area Power Administration.................... 16-5,10

Wetland Conservation, Protection..................... 3-7

19-10,11,12,13

21-3b

Wetlands Creation.................................... 2-1d(2)

10-8

19-14,15

 B-136

Widening of Bends.................................... 9-4b

12-20a 

 B-34

Wild and Scenic Rivers............................... B-101 

Windfall Benefits.................................... 5-12d

13-10c(1) 

With-and-Without Analysis............................ 3-1b

 5-6a(2)

13-14

Work-in-kind......................................... 5-12d 
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Subject/Keyword(s) Ch. No./App. Ltr. - Para. No.

F-21

Work for Others...................................... 14-1c(1)

22

23-8 

24-1,20,21

 B-94

Wrecks, Abandoned.................................... 24-18

Wrecks, Removal of................................... 12-17

 B-22,165
Comments on this pamphlet are welcome.

Particularly desired are suggestions

about how it might be made more useful,

informative and readable. Please

address comments to:

Chief, Policy Division

 (Attn: CECW-A)

Directorate of Civil Works

HQ, U.S. Army Corps of Engineers

20 Massachusetts Avenue, NW.

Washington, D.C. 20314-1000

 (202) 761-0847