103992 Federal Register / Vol. 89, No. 244 / Thursday, December 19, 2024 / Rules and Regulations 

1See https://obamawhitehouse.archives.gov/ 

sites/default/files/final_principles_and_

requirements_march_2013.pdf. Last accessed May 

21, 2024. 

2See https://planning.erdc.dren.mil/toolbox/ 

library/Guidance/Principles_Guidelines.pdf. Last 

accessed May 21, 2024. 

3See https://obamawhitehouse.archives.gov/ 

sites/default/files/docs/prg_interagency_guidelines_

12_2014.pdf. Last accessed May 21, 2024. 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 234 

[Docket ID: COE–2023–0005] 

RIN 0710–AB41 

Corps of Engineers Agency Specific 

Procedures To Implement the 

Principles, Requirements, and 

Guidelines for Federal Investments in 

Water Resources 

AGENCY: U.S. Army Corps of Engineers, 

Army, Department of Defense (DoD). 

ACTION: Final rule. 

SUMMARY: This rule establishes Agency 

Specific Procedures (ASPs) for the U.S. 

Army Corps of Engineers (Corps) to 

implement the Principles, 

Requirements, and Guidelines (PR&G) 

for Federal water resources investments. 

It provides a framework to govern how 

the Corps would evaluate proposed 

water resources investments, subject to 

the PR&G. The rule incorporates 

recommendations from interested 

parties. The Army is issuing this rule in 

response to congressional direction in 

the Water Resources Development Act 

of 2020. 

DATES: This rule is effective on January 

17, 2025. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Milton Boyd, Acting Director for Policy 

and Legislation, Office of the Assistant 

Secretary of the Army (Civil Works), 108 

Army Pentagon, Washington, DC 

20310–0108, at (202) 761–8546 or 

milton.w.boyd.civ@army.mil. 

SUPPLEMENTARY INFORMATION: 

A. Executive Summary 

B. Background 

C. Response to Public Comments 

D. Section-by-Section Discussion of the Final 

Rule and Revisions from the Proposed 

Rule 

E. Expected Benefits and Costs 

F. Procedural Requirements 

A. Executive Summary 

The Principles and Requirements for 

Federal Investments in Water Resources 

(P&R) 1 were established pursuant to the 

Water Resources Planning Act of 1965 

(Pub. L. 89–8), as amended (42 

U.S.C.1962a–2), and consistent with 

Section 2031 of the Water Resources 

Development Act of 2007 (WRDA 2007) 

(Pub. L. 110–114, 42 U.S.C. 1962–3). In 

WRDA 2007, Congress instructed the 

Secretary of the Army to revise the 1983 

Economic and Environmental Principles 

and Guidelines for Water and Related 

Land Resources Implementation Studies 

(P&G) 2 for the U.S. Army Corps of 

Engineers (Corps). Section 110 of the 

Water Resources Development Act of 

2020 (WRDA 2020) (Division AA of Pub. 

L. 116–260) directed the Army to issue 

its final Agency Specific Procedures 

(ASPs) necessary for the Corps’ Civil 

Works program to implement the P&R 

and Interagency Guidelines 3

(henceforth ‘‘Principles, Requirements 

and Guidelines,’’ or PR&G). 

The P&R were released in March 2013 

and set the overarching policy direction. 

The Interagency Guidelines were 

finalized in 2014 and provide a common 

framework for Federal agencies to 

implement the P&R. The PR&G provide 

a framework to guide how Federal water 

resources agencies develop proposed 

investments in water resources. The 

PR&G replace the 1983 P&G. Each water 

resources agency is to develop ASPs to 

implement the PR&G. 

This rule establishes the Corps’ ASPs 

to implement the PR&G. The ASPs 

provide a framework for the Corps to 

use in the planning process for projects, 

plans, and programs. The ASPs focus 

project development on maximizing net 

public benefits. Public benefits are 

documented across economic, 

environmental, and social categories. 

The evaluation of alternatives will be 

consistent with the principle that 

environmental, economic, and social 

impacts are interrelated. The analysis of 

benefits may be quantified using 

monetary or non-monetary metrics. 

Qualitative descriptions of benefits may 

also be developed. The environmental, 

economic, and social benefits and costs 

are to be fully considered in formulating 

and evaluating alternative plans and 

making recommendations to decisionmakers. 

B. Background 

The Army, through the Assistant 

Secretary of the Army for Civil Works, 

is responsible for policy direction and 

oversight of the Army’s Civil Works 

program, whereas the Corps has the lead 

in implementing the Civil Works 

program. This document refers both to 

the Army (for policy direction) and the 

Corps (for implementation 

responsibility). 

Section 2031 of WRDA 2007 (Pub. L. 

110–114, 42 U.S.C. 1962–3) established 

a national water resources planning 

policy. The national water resources 

planning policy states that all water 

resources projects should reflect 

national priorities, encourage economic 

development, and protect the 

environment by: (1) seeking to 

maximize sustainable economic 

development; (2) seeking to avoid the 

unwise use of floodplains and floodprone areas and minimizing adverse 

impacts and vulnerabilities in any case 

in which a floodplain or flood-prone 

area must be used; and, (3) protecting 

and restoring the functions of natural 

systems and mitigating any unavoidable 

damage to natural systems. 

Section 2031 of WRDA 2007 also 

called for the Secretary of the Army to 

revise the 1983 P&G for use by the Corps 

in the formulation, evaluation, and 

implementation of water resources 

projects. WRDA 2007 required that 

these revisions to the P&G address the 

following: the use of best available 

economic principles and analytical 

techniques, including techniques in risk 

and uncertainty analysis; the assessment 

and incorporation of public safety in the 

formulation of alternatives and 

recommended plans; assessment 

methods that reflect the value of 

projects for low-income communities 

and projects that use nonstructural 

approaches to water resources 

development and management; the 

assessment and evaluation of the 

interaction of a project with other water 

resources projects and programs within 

a region or watershed; the use of 

contemporary water resources 

paradigms, including integrated water 

resources management and adaptive 

management; and evaluation methods 

that ensure that water resources projects 

are justified by public benefits. 

In 2014, the Council on 

Environmental Quality (CEQ) completed 

an interagency effort to update the 1983 

P&G (79 FR 77460). The PR&G were 

developed through this interagency 

process to improve Federal decisions on 

investments in water resources by 

giving more prominence to ecological, 

public safety, environmental justice, 

and related concerns. 

The PR&G, which govern how Federal 

agencies evaluate proposed water 

resources projects, programs activities, 

and related actions, consist of the 

following three components: (1) the 

P&R, providing the overarching 

concepts that the Federal Government 

seeks to achieve through policy 

implementation and requirements for 

inputs into analysis of Federal 

investment alternatives; (2) Interagency 

Guidelines, providing more detailed 

guidance for affected Federal agencies, 


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including the Departments of the 

Interior, Agriculture, and Commerce, 

the Environmental Protection Agency, 

the Corps, the Federal Emergency 

Management Agency, and the Tennessee 

Valley Authority, for determining the 

applicability of the P&R; and (3) the 

ASPs, outlining agency-specific 

procedures for incorporating the P&R 

into agency missions and programs. 

The P&R describe the Federal 

Objective as reflecting national 

priorities, encouraging economic 

development, and protecting the 

environment. The Federal Objective is 

rooted in the national water resources 

planning policy established in Section 

2031 of WRDA 2007. Two key concepts 

are ‘‘Federal investment’’ and ‘‘public 

benefit.’’ The PR&G focus on Federal 

water resources investments, including 

projects, plans, and programs that either 

directly or indirectly affect water quality 

or water quantity, including ecosystem 

restoration or related land management 

activities. The level of a given Federal 

investment will be determined on a 

present value basis over the life of the 

Federal investment, and the net public 

benefits of an investment will be 

assessed and used to guide Federal 

decision-making. Federal water 

resources investments should strive to 

achieve water resources goals and seek 

to maximize net public benefits, 

consistent with the PR&G. 

The PR&G modernize the Federal 

Government’s approach to water 

resources development. They take a 

more comprehensive approach to water 

projects that seeks to maximize public 

benefits relative to the cost of an 

investment in water resources. Under 

the PR&G, decision-making is intended 

to be more transparent and better 

informed through risk recognition. 

Recommendations will be aimed at 

meeting the broader Federal Objective of 

reflecting national priorities, 

encouraging economic development, 

and protecting the environment by 

seeking to maximize sustainable 

economic development, seeking to 

avoid the unwise use of floodplains, and 

protecting and restoring the functions of 

natural systems and mitigating 

unavoidable damage to natural systems. 

The ASPs will serve as the framework 

for how the Corps will implement the 

PR&G. 

The Army pursued rulemaking to 

provide codified direction for the Corps 

project planning process, which will 

achieve the purposes of the PR&G with 

input from robust and meaningful Tribal 

and public engagement. The Corps also 

reviewed and considered the approved 

ASPs of other Federal agencies in 

developing this final rule. 

This final rule follows the general 

framework laid out in the PR&G. This 

rule formalizes the planning framework 

of the Corps under the PR&G in a 

transparent manner. 

The final ASPs will apply to plans, 

projects, or programs that are initiated 

after this final rule takes effect. The 

Corps will apply the ASPs to plans, 

projects, or programs that have not yet 

issued a Draft Environmental Impact 

Statement or similar level of 

documentation on or before the final 

rule effective date. 

C. Response to Public Comments 

Initially, the Army sought input from 

Tribes, Federal, and State agencies, 

stakeholders, and other interested 

parties through the issuance of the 

Notice of Virtual Public and Tribal 

Meetings Regarding the Modernization 

of Army Civil Works Policy Priorities; 

Establishment of a Public Docket; 

Request for Input (Modernize Civil 

Works) that was published on June 3, 

2022 (87 FR 33756). 

Subsequently, on February 15, 2024, 

the Assistant Secretary of the Army for 

Civil Works published a proposed rule 

to establish the ‘‘Corps of Engineers 

Agency Specific Procedures To 

Implement the Principles, 

Requirements, and Guidelines for 

Federal Investments in Water 

Resources’’ (89 FR 12066). A 60-day 

public comment period closed on April 

15, 2024. 

On February 16, 2024, the Assistant 

Secretary of the Army for Civil Works 

sent letters to Tribal Nations, Alaska 

Native Corporations, and Native 

Hawaiian Organizations and 

Communities requesting consultation 

and seeking comments on the proposed 

rule. Tribal Nations, Alaska Native 

Corporations, and Native Hawaiian 

Organizations could request 

consultation through April 26, 2024. 

During the comment period, three 

virtual public meetings were held to 

accept oral comments on the proposed 

rule. In addition, written comments 

were submitted by almost 250 

organizations and individuals. 

Comments were provided by States, 

agencies, local governments, utilities, 

business interest groups, environmental 

organizations, academic institutions, 

farmers, businesses, and private 

citizens. Comments ranged from fully 

supportive of the proposed rule to 

viewpoints that were skeptical or not 

supportive. Many groups and 

individuals offered support along with 

recommendations to change parts of the 

proposed rule. 

Virtual public meetings were hosted 

by the Office of the Assistant Secretary 

of the Army for Civil Works on February 

26, 2024, and March 12, 2024, and a 

virtual Tribal meeting was held on 

March 19, 2024. In total, 133 people 

attended the virtual meetings. The 

Office of the Assistant Secretary of the 

Army for Civil Works led the meetings 

and presented slides and moderated the 

public comment sessions. Verbal 

comments were accepted along with 

comments in the chat messages. Some of 

the meeting participants asked 

questions, and clarifying responses were 

provided to assist the public in 

understanding the proposed rule. All 

presentation materials, transcripts, and 

video recordings from the virtual 

meetings are available on the Army’s 

website (https://www.army.mil/article/ 

273436/procedures_to_evaluate_water_

resource_investments). 

The Army received 13,292 pages of 

comments during the comment period. 

There were public comment letter 

submissions with multiple cosigners, 

including a single letter with over 100 

signing organizations. The Army also 

received thousands of duplicated form 

letters within a single submission. Not 

counting the duplicated comments, the 

Army received over 500 unique 

comments. 

One Tribal Nation elected to conduct 

Government-to-Government 

consultation on the proposed rule that 

resulted in revisions to the rule 

regarding Tribal treaty and reserved 

rights and consultation requirements. 

The supporting materials used to 

prepare this rule, and the comments and 

materials received on the proposed rule 

are available on the Federal erulemaking portal (https://

www.regulations.gov) (search Docket ID: 

COE–2023–0005). 

The Office of the Assistant Secretary 

of the Army for Civil Works reviewed 

all comments and made changes, as 

appropriate, to the final rule based on 

those comments and an internal review. 

Those changes are described in detail in 

the ‘‘Section-by-Section Discussion of 

the Final Rule and Revisions from the 

Proposed Rule’’ in this preamble. 

Most comments received were 

supportive of the ASPs but included 

specific recommendations and/or lineby-line edits. A significant portion of 

entries requested additional guidance 

on how to appropriately value nonmonetized benefits when comparing 

economic, environmental, and social 

parameters and determining the net 

public benefits. Several commenters 

were concerned that the rule 

incorporates too much subjectivity into 

the planning and decision-making 

process. Others encouraged earlier and 

more consequential involvement of 


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Tribes and communities from the onset 

of and throughout the study process. A 

few letters expressed concerns that the 

rule will not be sufficient to ensure 

substantial changes on its own. At least 

two commenters recommended that the 

ASPs not be codified, indicating that not 

every agency went through rulemaking 

for their respective ASPs, and cited 

concerns over litigation. At least one 

commenter supported the decision to 

codify the ASPs, indicating it aligned 

with the good government principles of 

consistency, predictability, 

transparency, and accountability. 

Some commenters did not broadly 

support the proposed rule. A couple 

commenters asserted that the ASPs 

exceed Congressional intent and the 

Army’s authority. The Army notes that 

Congress expressly directed it to 

develop these ASPs for the PR&G in 

Section 110 of WRDA 2020. The Army 

is executing this direction. 

A few comments focused on potential 

Federal budgeting and financing 

implications of the rule. One comment 

expressed that economic development 

remains an important objective of 

Federal budgetary criteria. Others 

sought the inclusion of Federal budget 

considerations in the rule and other 

supporting information. While these are 

valid considerations, the budget 

development and approval processes are 

separate from the framework outlined in 

the rule. Federal budgets are developed 

and proposed by the Administration 

and presented to Congress for 

appropriations considerations and 

approvals. These are separate and 

independent actions not related to the 

formulation of solutions to water 

resources related problems for potential 

implementation via the Army Civil 

Works program. 

There were a few comments on 

specific project concerns. The rule will 

apply to plans, projects, or programs 

that are initiated after this final rule 

takes effect. In general, the Corps will 

apply the ASPs to plans, projects, or 

programs that have not yet issued a 

Draft Environmental Impact Statement 

or similar level of documentation on or 

before the final rule effective date. 

In general, changes to the final rule 

included technical and grammatical 

corrections. In accordance with the 

Office of the Federal Register 

‘‘Document Drafting Handbook,’’ 

footnotes have been removed from the 

rule. A technical correction to the rule 

included updating the cited authority. 

The authority for the rule has been 

corrected to 42 U.S.C. 1962–3. 

Throughout the rule, the abbreviation of 

ASPs was added when necessary. Other 

technical corrections made to the final 

rule, not covered in Section D of this 

preamble, included: correction of the 

issuing office for the PR&G in § 234.1; 

removal of ‘‘and’’ prior to ‘‘buyouts/ 

acquisition’’ in the second sentence of 

§ 234.2(l); name correction for the 

Corps’ Interagency and International 

Services program in § 234.4(d)(2)(xi); 

clarifying the reference in paragraph 

234.4(d)(2)(xv) to ‘‘Section 234.3’’; 

added ‘‘protect Tribal treaty rights’’ to 

list of environmental justice principles 

in § 234.6(c)(1)(ii); deleted duplicative 

text in next-to-last sentence within 

§ 234.6(c)(6); fixing a typographical 

error in the numbering of § 234.6(f)(7); 

deleting the caveat in § 234.7(h) ‘‘where 

feasible and consistent with the purpose 

of the water resources study’’; deleted 

the caveats in § 234.8(a) ‘‘, if one 

exists,’’; deleted duplicative text in the 

sixth sentence of § 234.9(c); and a 

numbering correction within 

§ 234.11(a)(2). 

Based on comments received, text 

within the rule was updated to better 

describe the full consideration of 

economic, environmental, and social 

benefits in decision-making. The rule 

text has also been updated to add clarity 

and emphasis to respecting Tribal treaty 

rights throughout the planning process 

for any plan, project, or program. 

A large majority of comments 

received were seeking further clarity on 

process, procedures, methodology, and 

tools. The Corps will review current 

guidance following publication of the 

final rule to determine the need for 

updates. 

The Army received many comments 

stressing the importance of 

environmental protection or 

conservation. This input is incorporated 

into various sections of the rule ranging 

from Guiding Principles to alternatives 

formulation to benefits analysis and the 

clear presentation of evaluation results. 

The proposed rule included 58 items 

where the Army solicited specific input 

from interested parties. The public 

provided input on 44 of the topic areas. 

The input received is presented in the 

‘‘Section-by-Section Discussion of the 

Final Rule and Revisions from the 

Proposed Rule’’ section of this 

preamble, including how the 

information was used to change the rule 

or whether the information was not 

incorporated into the rule. 

The items that did not receive input 

were: the use of the term ‘‘water 

resources development projects;’’ the 

inclusion of additional resilience 

measurement concepts; the exclusion of 

Corps watershed studies from the ASPs; 

the type of data to use in inflating the 

monetary applicability thresholds; 

whether to account for the non-Federal 

share of the costs in setting the 

monetary thresholds; whether there are 

alternative forms to measure ecosystem 

health; comment on particular models, 

tools, methodologies, or other 

information that may be helpful in 

assessing ecosystem resilience; whether 

the description of public safety as 

proposed should be broadened; whether 

additional threats to public safety 

should be included for consideration 

beyond those related to natural events; 

comment on risk informed frameworks 

that can supplement or improve the 

current risk informed planning 

processes used by the Corps; comment 

on when a multi-criteria decision 

analysis would be appropriate for the 

application within PR&G analysis; and 

comment on the tools, methods, and 

processes for assessing the tradeoffs to 

best elicit preferences resulting in the 

most informed recommendations in a 

consistent manner. 

The input request also solicited 

comment in general on issues or 

concerns related to this proposed rule. 

That feedback, when received, is noted 

in the ‘‘Section-by-Section Discussion of 

the Final Rule and Revisions from the 

Proposed Rule’’ section of this 

preamble. 

D. Section-by-Section Discussion of the 

Final Rule and Revisions From the 

Proposed Rule 

The final rule incorporates changes 

based on input received through the 

comment process. A summary of the 

comments received, responses, and 

changes to each section are as follows: 

Section 234.1 General. This section 

of the rule describes the background of 

the PR&G as well as the authority for the 

development of the Corps’ ASPs. 

Nothing in this rule will change any 

other legal requirements to which the 

Corps is subject, including applicable 

WRDA provisions. There were no public 

comments submitted on this section. No 

changes were made to the final rule. 

Section 234.2 Definitions. This 

section provides definitions for relevant 

terms used in the rule. The Army 

solicited input on additional terms that 

needed to be defined and on whether 

the definitions required additional 

clarity. Several commenters 

recommended adding various 

definitions to § 234.2. A letter was 

received seeking clarity on the terms 

‘‘actionable science’’ and/or ‘‘best 

available science,’’ and another sought 

to include a definition of 

‘‘environmental infrastructure projects.’’ 

The following paragraphs describe other 

comments received with respect to 

definitions and the Army responses. 


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Response: As a result of the public 

comment process, the only addition 

made to the definitions section is the 

addition of the term ‘‘professional 

judgment.’’ 

Section 234.2(a) Acceptability. This 

paragraph provides a definition for the 

term ‘‘acceptability.’’ This definition is 

provided in the P&R. Acceptability is 

one of four criteria to be considered 

when formulating an alternative. 

Acceptability takes into consideration 

the general public’s perspectives in the 

determination of an alternative’s 

viability and appropriateness and 

ensures consistency with existing 

Federal laws, authorities, and public 

policies. There were no public 

comments concerning the definition of 

the term ‘‘acceptability.’’ 

Response: No changes were made to 

the definition of the term 

‘‘acceptability.’’ 

Section 234.2(b) Adaptive 

management. This paragraph provides a 

definition for the term ‘‘adaptive 

management.’’ This definition is 

provided in the P&R and describes the 

process to address changes, uncertainty, 

and maximization of goals over time. 

Adaptive management should be 

incorporated into alternatives, where 

warranted, to address risk and 

uncertainty. One Tribal Organization 

proposed that the definition should 

reference the need to monitor ecological 

responses to the Corps’ operations and 

to institute operational flexibility to 

respond to changing conditions. 

Another comment was received 

suggesting that future guidance related 

to adaptive management include 

requirements for how and when those 

measures are to be evaluated throughout 

a project’s lifecycle. 

Response: No changes were made to 

the definition of the term ‘‘adaptive 

management.’’ The Army disagrees with 

the comment proposing a change to the 

definition. The ASPs will apply to all 

Army Civil Works water resources 

investments (except in cases outlined in 

§ 234.3(d)(1)), where analysis may 

include the monitoring of ecological 

responses to proposed Civil Works 

projects. 

Section 234.2(c) Completeness. This 

paragraph provides a definition for the 

term ‘‘completeness.’’ This definition is 

provided in the P&R and describes 

when an alternative is complete enough 

to realize the planned effects. 

Completeness does not equate to a 

particular scope or scale to be 

considered complete. Completeness is 

one of four criteria to be considered 

when formulating an alternative. No 

comments were received concerning the 

definition of the term ‘‘completeness.’’ 

Response: No changes were made to 

the definition of the term 

‘‘completeness.’’ 

Section 234.2(d) Effectiveness. This 

paragraph provides a definition for the 

term ‘‘effectiveness’’ and describes that 

an alternative is effective when it 

alleviates the specific problems and 

achieves the specified opportunities. 

One comment letter was received that 

recommended adding resiliency to the 

definition. 

Response: No changes were made to 

the definition of the term 

‘‘effectiveness.’’ The Army does not 

agree that the suggested changes would 

improve the definition, and is retaining 

the definition provided in the P&R for 

consistency with other Federal agencies. 

Section 234.2(e) Efficiency. This 

paragraph provides a definition for the 

term ‘‘efficiency.’’ This definition is 

provided in the P&R and describes the 

extent to which an alternative may 

alleviate the specified problems and 

realize the specific opportunities at the 

least cost. Efficiency is similar to 

effectiveness with the additional 

element of cost consideration. Two 

commenters recommended including 

environmental and social efficiency in 

the definition. Another commenter 

recommended referencing economic 

efficiency in the definition. 

Response: No changes were made to 

the definition of the term ‘‘efficiency.’’ 

The Army does not agree that the 

suggested changes would improve the 

definition, and is retaining the 

definition provided in the P&R for 

consistency with other Federal agencies. 

Section 234.2(f) Federal investment. 

This paragraph provides a definition for 

the term ‘‘Federal investment.’’ The 

ASPs are intended to assist the Corps in 

designing and evaluating potential 

Federal investments in water resources. 

Federal investment, as used in the 

PR&G, is broad and intended to capture 

a wide array of activities that the 

Federal Government undertakes relating 

to water resources, including projects, 

programs, and plans. The definition in 

this rule is specific to the Corps. A few 

comment letters recommended 

expanding the definition to reference 

Corps mission areas and to include 

water supply and hydropower, among 

others. 

Response: No changes were made to 

the definition of the term ‘‘Federal 

investment.’’ The final rule applies 

broadly, including investments in 

primary missions, as well as 

hydropower and water supply. 

Section 234.2(g) Federal objective. 

This paragraph provides a definition for 

the term ‘‘Federal Objective,’’ which is 

the fundamental goal of Federal 

investments in water resources. This 

basic definition is provided in the PR&G 

but originates in Section 2031 of WRDA. 

Multiple comments were received 

about the definition of the term ‘‘Federal 

Objective.’’ Comments were received 

recommending the inclusion of the 

complete text from Section 2031 of 

WRDA 2007. One commenter 

recommended text from Engineer 

Regulation 1105–2–100 where the 

planning objectives describe the desired 

results of the planning process. Two 

commenters recommended adding the 

terms ‘‘resiliency’’ and ‘‘sustainability’’ 

and including broader public benefits to 

key parts of the definition. One 

comment recommended including 

‘‘remedying past inequities’’ and 

‘‘respecting the treaty rights of Tribal 

Nations’’ as a part of the definition of 

the term ‘‘Federal Objective.’’ One 

commenter recommended the rule 

clearly state that the Federal Objective 

be considered as project outcomes for 

all Federal water resource projects. 

Another comment sought to incorporate 

clearer standards, thresholds, and 

directives in the definition to provide 

for robust stakeholder engagement 

similar to current guidance in Engineer 

Regulations and Engineer Pamphlets. 

Response: No changes were made to 

the definition of the term ‘‘Federal 

Objective.’’ The Army does not agree 

with adding the terms ‘‘resiliency’’ or 

‘‘sustainability’’ or broader public 

benefits to the definition. The full 

definition of Federal Objective is 

detailed in law (Section 2031 of WRDA 

2007) and mirrored in the PR&G. The 

definition in the ASPs is abbreviated but 

the full concepts are detailed in other 

parts of the rule. See §§ 234.4 and 234.6 

of the rule. 

The Army does not agree with adding 

text from Engineer Regulation 1105–2– 

100 as that description explains the 

planning objectives of the study and not 

necessarily the Federal Objective itself. 

The Army already provides guidance 

that the alternatives should be 

compared to the Federal Objective 

during the formulation stage of a study. 

The Army does not agree with 

including ‘‘remedying past inequities’’ 

in the definition of the term ‘‘Federal 

Objective.’’ The P&R defines the Federal 

Objective based on section 2031(a) of 

WRDA 2007, which does not include 

this term. 

Regarding respecting treaty rights of 

Tribal Nations, the Corps is committed 

to meeting its trust responsibility by 

integrating the Civil Works Tribal 

Consultation Policy into the 

implementing guidance for the PR&G. 

The Corps will review existing guidance 

and provide updated guidance, where 


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4See https://www.whitehouse.gov/wp-content/ 

uploads/2022/11/Nature-Based-SolutionsRoadmap.pdf. Late accessed May 21, 2024. 

warranted, following completion of the 

final rule. This would include 

identification of any guidance needed to 

address the protection of Tribal treaty 

rights and trust resources and 

identifying opportunities for 

communities with environmental justice 

concerns. The final rule was modified 

with respect to the treatment of Tribal 

treaty rights in §§ 234.6, 234.7, and 

234.9. 

Section 234.2(h) Indigenous 

Knowledge. This paragraph provides a 

description of the term ‘‘Indigenous 

Knowledge’’. The description used in 

the rule is consistent with the definition 

codified by the Department of Interior, 

Bureau of Land Management in 43 CFR 

2361.5, and 43 CFR 6101.4 (h); and with 

the description in the November 30, 

2022 White House memorandum, 

‘‘Guidance for Federal Departments and 

Agencies on Indigenous Knowledge.’’ 

Indigenous Knowledge must be 

considered in and used to inform all 

aspects of the implementation of the 

ASPs, where relevant and applicable. 

Multiple comments were received 

concerning the proposed rule’s 

definition of Indigenous Knowledge. 

One noted that the term should be 

defined by Tribal Governments through 

Government-to-Government 

consultation. Another called for 

incorporating a definition from the 

Advisory Council on Historic 

Preservation. The other expressed the 

need to recognize other types of firsthand and long-term knowledge from 

local communities. 

Response: The final rule describes 

Indigenous Knowledge, and is 

consistent with the descriptions and 

definitions used in existing law and 

existing Federal guidance. The Corps 

has revised the description for clarity. 

While no substantive changes were 

made, aspects of the comments received 

are key to the successful 

implementation of the Corps’ Civil 

Works Tribal Consultation Policy and 

will be considered in the development 

of future Corps guidance. 

Section 234.2(i) Nature-based 

alternatives. This paragraph provides a 

definition for the term ‘‘nature-based 

alternatives.’’ Two commenters 

recommended changes to the definition 

by adding text recognizing that the same 

land can be used for multiple purposes 

and benefits as well as the addition of 

created ecosystems. One comment letter 

requested further details regarding 

establishing clear objectives for use of 

nature-based solutions, monitoring 

requirements, and adaptive management 

parameters. One commenter indicated 

that nature-based solutions should be 

excluded from the definition of 

nonstructural approaches. Another 

commenter recommended that the 

Corps actively partner with industry to 

test technologies for nature-based 

solutions. 

Response: No changes were made to 

the definition of the term ‘‘nature-based 

alternatives.’’ The Army does not agree 

that the suggested changes would 

improve the definition, and is using the 

definition provided in the report 

entitled, ‘‘Opportunities to Accelerate 

Nature-based Solutions: A Roadmap for 

Climate Progress, Thriving Nature, 

Equity, & Prosperity’’,4 issued by CEQ, 

the White House Office of Science and 

Technology Policy, and the White 

House Domestic Climate Policy Office 

(2022). This approach aligns with the 

practice of other Federal water resources 

agencies. 

The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the rule to include any 

necessary details regarding the 

application, evaluation, and 

recommendation of nature-based 

alternatives. 

Section 234.2(j) Non-Federal interest. 

This paragraph provides a definition for 

the term ‘‘non-Federal interest.’’ The 

definition is taken from 42 U.S.C. 

1962d–5b(b). The Army solicited 

comment on whether equating the nonFederal interest with the local interest is 

an appropriate approach for 

implementation. The Army also 

solicited recommendations on how the 

ASPs can incorporate and identify the 

role of the non-Federal interest. 

Multiple commenters recommended 

expansion of the definition of the term 

‘‘non-Federal interest’’ to include 

responsibilities required of the nonFederal interest as well as their role in 

the development of a water resources 

development project. Several comments 

were received suggesting early 

coordination with non-Federal interests 

to establish a solid foundation for any 

study, to include problem identification, 

objectives, constraints, etc. One 

comment letter suggested the definition 

be expanded to acknowledge 

contributions of non-Federal interests in 

defining problems, objectives, and 

constraints associated with a water 

resources development project. One 

comment letter sought details on costsharing and ownership responsibilities 

associated with a completed project. 

One comment letter requested the 

acknowledgement of multiple nonFederal partners on any given study/ 

project. One comment letter requested 

early coordination to leverage 

contributions from a non-Federal 

interest in a study/project. Another 

suggested the Army should recognize 

that many projects with non-Federal 

and local interests are also of Federal 

interest because regional economic 

benefits have spillover and additive 

benefits to the national economy. 

Another comment letter requested 

clarity on the implementation 

authorities of the non-Federal interest 

and details on locally preferred plans. 

Response: No changes were made to 

the definition of the term ‘‘non-Federal 

interest.’’ The Army does not agree that 

changes to the definition of the term 

‘‘non-Federal interest’’ are required as 

the definition is codified in law. 

Existing Corps documents such as 

‘‘Partnering with the U.S. Army Corps of 

Engineers: A Guide for Communities, 

Local Governments, States, Tribes, and 

Non-Governmental Organizations’’ 

(2019) outline the role and 

responsibilities of the non-Federal 

interest(s) in development (planning, 

design, construction, and maintenance) 

of water resources projects. Cost-share 

requirements for non-Federal interest(s) 

are established in statute, or otherwise 

directed by Congress. 

Section 234.2(k) Nonstructural 

alternative. This paragraph provides a 

definition for the term ‘‘nonstructural 

alternative.’’ One comment letter was 

received stating the opinion that 

nonstructural measures are distinctively 

different from natural and nature-based 

measures. 

Response: No changes were made to 

the definition of the term ‘‘nonstructural 

alternative.’’ The Army has retained the 

definition provided in the P&R for 

consistency with other Federal agencies. 

Section 234.2(l) Nonstructural 

approaches. This paragraph provides a 

definition for the term ‘‘nonstructural 

approaches.’’ Nonstructural approaches 

are intended to apply across the Corps 

missions and activities that are subject 

to the PR&G. Since WRDA 1974, the 

Corps has been required to evaluate 

opportunities to reduce flood damages 

using nonstructural approaches in plan 

formulation. Congress has expanded the 

definition of nonstructural approaches 

and included the requirement for 

nonstructural approaches in specific 

study authorities and for the 

rehabilitation of existing structures. 

The Army solicited comment on 

whether the examples in the definition 

are appropriate and provide context for 

the term ‘‘nonstructural’’ or whether 

modifications should be made to the 

definition. The Army also solicited 

comment on whether the definition best 


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enables the Corps to achieve the longterm planning goals and objectives of 

the PR&G, including the P&R’s healthy 

and resilient ecosystems and 

floodplains Guiding Principles. 

A few commenters recommended 

modifying the definition of the term 

‘‘nonstructural approaches’’ to show 

that the approach contributes to the 

Federal Objective and reduces project 

risks or accounts for externalities. One 

commenter recommended removing the 

nature-based alternative from the list of 

examples so that it may be presented as 

its own alternative during the 

evaluation process. One comment letter 

suggested that nonstructural approaches 

should not be mandatory when none 

exist to address the water resources 

problem under investigation. Another 

commenter worried that developing 

nonstructural alternatives would add 

unnecessary cost to studies. 

Response: No changes were made to 

the definition of the term ‘‘nonstructural 

approaches.’’ The Army does not agree 

that the suggested changes would 

improve the definition, and is retaining 

the definition provided in the P&R for 

consistency with other Federal agencies. 

Text was added to § 234.8(f) of the rule 

requiring documentation of any 

decision to not evaluate a particular 

measure/alternative if none exists. The 

Corps already routinely develops 

nonstructural measures and approaches 

in many of its studies without adding 

undue costs. 

Section 234.2(m) Professional 

judgment. In response to comments 

seeking clarity on use of the term, a 

definition was added to the rule. 

Note: From this point forward, the 

definitions within § 234.2 will advance one 

position in the rule (i.e., § 234.2(m) in the 

proposed rule will become (n)), due to the 

addition of the term ‘‘professional 

judgment.’’ 

Section 234.2(n) Public benefits. This 

paragraph provides a definition for the 

term ‘‘public benefits.’’ Public benefits 

encompass economic, environmental, 

and social benefits, and include those 

that can be quantified in monetary 

terms, as well as those that can be 

quantified or described in other ways 

qualitatively. The PR&G provide for the 

maximization of public benefits relative 

to costs. This definition is adapted from 

the definition provided in the P&R. 

One comment letter suggested public 

benefits should capture benefits for 

affected populations and not 

communities further removed from the 

issue at hand. One comment letter 

requested further details on how public 

benefits will be used to determine the 

price of storage and water supply 

investigations. Another sought 

clarification of the meaning and role of 

public benefits. 

The Army solicited comment on how 

benefits to Tribal Nations should be 

described, such as whether benefits to 

Tribal Nations should be considered a 

Federal trust responsibility, and 

whether benefits to Tribal Nation 

should be called out separately from the 

overarching ‘‘public benefits.’’ The 

Army also solicited comment on how 

such analysis would best be conducted 

for projects affecting Tribal Nations, and 

whether the Corps should identify, 

characterize, and evaluate the benefits 

to the Tribal Nation separately, as 

opposed to including them in a broader 

assessment of the overall benefits of the 

proposed project and the alternatives to 

the U.S. Nation (including the affected 

Tribal Nations). 

Multiple comments supported the 

distinction of Tribal benefits from 

public benefits. Two comments 

highlighted the challenges with 

adequately capturing or quantifying 

Tribal benefits through a cost-benefit 

analysis. One Tribal Nation stated that 

Tribal treaty and reserved rights, 

including treaty-protected resources and 

habitats, are not and should not be 

characterized as ‘‘benefits’’ (whether 

‘‘Tribal’’ or ‘‘public’’); rather, they are 

the supreme law of the land, which 

should not be evaluated in a costbenefits analysis. 

Response: No changes were made to 

the definition of the term ‘‘public 

benefits.’’. The Army acknowledges that 

Tribal benefits are categorically separate 

from public benefits and must be 

identified in consultation with the 

Tribal Nation to which the benefits 

would accrue. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the rule to include 

additional details or procedures for 

presenting quantitative or qualitative 

public benefits and benefits to Tribal 

Nations. Additional clarifying text was 

added to the rule regarding the 

treatment of Tribal treaty rights in 

§§ 234.6, 234.7, and 234.9. 

Section 234.2(o) Regulatory. This 

paragraph provides a definition for the 

term ‘‘regulatory.’’ This definition is 

provided in the P&R and is a general 

definition of actions which are 

regulatory in nature promulgated by the 

Federal Government. ‘‘Regulatory’’ 

actions can include the promulgation of 

regulations as well as other activities 

such as permit decisions. There were no 

public comments concerning the use of 

the term ‘‘regulatory.’’ 

Response: No change was made to the 

definition of the term ‘‘regulatory.’’ 

Section 234.2(p) Resilience. This 

paragraph provides a definition for the 

term ‘‘resilience.’’ This definition is 

provided in the P&R. The Army 

solicited comment on whether the 

resilience definition provided in 

Executive Order 13653 (Preparing the 

United States for the Impacts of Climate 

Change) (78 FR 66817 (Nov. 6, 2013)), 

the National Climate Resilience 

Framework, or M–24–03 (Advancing 

Climate Resilience through Climate 

Smart Infrastructure Investments and 

Implementation Guidance for the 

Disaster Resiliency Planning Act) 

should be included in the regulation 

instead of or in addition to the proposed 

definition. The Army also solicited 

comment on whether additional 

concepts from these documents should 

be included in the rule. 

Some commenters felt the proposed 

definition of resilience was too narrow 

and recommended expanding the 

definition. Other commenters suggested 

that the definition was too broad, and 

asked that it be aligned with current 

Corps guidance. 

Response: The Army updated the 

definition of resilience in the final Rule 

in accordance with the National Climate 

Resilience Framework. 

Section 234.2(q) Sustainable. This 

paragraph provides a definition for the 

term ‘‘sustainable.’’ This definition is 

provided in the P&R and refers to the 

conditions where humans and nature 

can coexist. 

One commenter recommended 

expansion of the definition of 

sustainable to include a characterization 

of the effects or outcomes of potential 

actions to be assigned to benefits. 

Response: No changes were made to 

the definition of the term ‘‘sustainable.’’ 

The Army does not agree that the 

suggested changes would improve the 

definition, and is retaining the 

definition provided in the P&R for 

consistency with other Federal agencies. 

Section 234.2(r) Tribal Nation. This 

paragraph provides a definition for the 

term ‘‘Tribal Nation.’’ This definition is 

consistent with the Federal 

Government’s definition and 

identification of a Tribal Nation by the 

Secretary of the Interior (25 U.S.C. 

5130). 

Environmental justice is one of the 

Guiding Principles of the P&R and this 

rule. The Army recognizes that there are 

other Indigenous populations, Native 

Hawaiian Organizations, and nonFederally recognized Tribes that may 

not meet the definition of the term 

‘‘Tribal Nation.’’ Many of these include 

communities having environmental 

justice concerns. Regardless of 

definitions and legal authorities 


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applicable to the Civil Works programs, 

the Corps would ensure full outreach 

and coordination occurs with all Tribal 

Nations, Indigenous populations, Native 

Hawaiian Organizations, and nonFederally recognized Tribes as relevant 

to a particular water resources 

investment as addressed in the 

preamble’s discussion of § 234.6(d). 

Such outreach and coordination would 

be separate from Government-toGovernment consultation requirements. 

The Army solicited comment on 

whether non-Federally recognized 

Indigenous populations should be 

defined separately for the purposes of 

the PR&G. One public comment 

recommended that Indigenous 

populations be defined separately from 

Federally recognized Tribes for the 

purposes of the PR&G. One public 

comment supported full outreach with 

all Indigenous populations, regardless of 

Federal recognition, to fully assess 

environmental and equity concerns. 

One Tribal Nation supported the 

definition as proposed in the draft rule. 

Response: In consideration of the 

comments received and after Nation-toNation consultation, the Army did not 

make a change to the definition of the 

term ‘‘Tribal Nation.’’ The Army 

recognizes the complexities of Federal 

recognition for Indigenous 

communities, many of which have 

significant environmental justice 

concerns regardless of any status as 

Federally recognized Tribes. The Army 

will continue outreach and other best 

practices for Indigenous populations 

that do not have Federal recognition. 

Section 234.2(s) Unwise use of 

floodplains. This paragraph provides a 

definition for the term ‘‘unwise use of 

floodplains.’’ This definition is adapted 

from the definition provided in the P&R. 

The proposed definition of ‘‘unwise use 

of floodplains’’ included any action that 

is incompatible with or adversely 

impacts one or more floodplain 

functions that leads to a floodplain that 

is no longer self-sustaining. The Army 

solicited comment on how the Corps 

should evaluate the self-sustainment of 

a floodplain that is occupied or 

inhabited. 

Multiple commenters recommended 

clarification and/or expansion of the 

definition. One commenter 

recommended alignment of the 

definition with Executive Order 11988. 

Others sought the inclusion of broader 

concepts such as a climate-informed 

science approach and a Federal Flood 

Risk Management Standard. Other 

commenters supplied recommended 

language to identify the category of 

broad impacts on attributes of the 

floodplain. One comment letter 

requested the definition be expanded to 

acknowledge the importance of 

floodplains to fish and wildlife. Others 

noted that wetlands and floodplains are 

essential resources that provide 

numerous ecosystem services. 

Response: The Army added the 

following sentence to the Rule 

definition: ‘‘To identify floodplain areas 

for the purpose of this section, the Corps 

will use the best-available and 

actionable science including a climateinformed science approach.’’ This was 

done for consistency with the Federal 

Flood Risk Management Standard 

established under Executive Order 

13690 (Establishing a Federal Flood 

Risk Management Standard and a 

Process for Further Soliciting and 

Considering Stakeholder Input) (80 FR 

6425 (Feb. 4, 2015)). 

Section 234.2(t) Watershed. This 

paragraph provides a definition for the 

term ‘‘watershed.’’ This general 

definition for watershed is provided in 

the P&R. There were no public 

comments concerning the definition of 

the term ‘‘watershed.’’ 

Response: No changes were made to 

the definition of the term ‘‘watershed.’’ 

Section 234.3 Exceptions. This 

section describes a way to request an 

exception from the Assistant Secretary 

of the Army for Civil Works to the 

requirements or policy contained in this 

rule. Exception requests must be 

submitted in writing. 

Several comments were received on 

this topic. One comment letter, from a 

Tribal Organization group representing 

seven Tribal Nations, recommended 

including criteria for the Assistant 

Secretary of the Army for Civil Works to 

grant exceptions. Several comment 

letters similarly requested clear 

parameters and criteria for seeking an 

exception from the Secretary for any 

policy exception. One comment letter 

requested additional details on unique 

circumstances that may require 

exceptions. Two comments were 

received requesting a public notification 

process when exceptions are obtained 

for an undertaking. Another 

recommended striking the provision 

allowing non-Federal sponsors to 

request exemptions. One comment 

requested an explanation of the 

intended use of the exception authority 

and a requirement for periodic reporting 

of the use of exceptions. A State water 

agency noted that stranded asset 

situations should be specifically 

identified as eligible for an exception. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the rule regarding process 

and procedures for exceptions. 

Section 234.4 Objectives and 

applicability. 

Section 234.4(a) Introduction. This 

paragraph of the final rule states the 

goals and objectives of the ASPs. The 

final rule will help ensure consistency 

and transparency in the Corps’ 

implementation of the PR&G by 

providing a common framework 

codified in regulation. The rulemaking 

process provided an opportunity for 

review and comment prior to 

finalization. The Corps has various 

guidance documents for its water 

resources development project planning 

process, but the final ASPs will ensure 

all projects, plans, and programs subject 

to the PR&G are using the same Guiding 

Principles and considerations in 

developing alternatives and 

recommendations. After finalizing the 

ASPs, the Corps will review its 

guidance documents and rescind, 

modify, or develop new guidance as 

needed to comport with and further the 

objectives of the ASPs. However, the 

final ASPs are intended to stand on 

their own regarding the overall 

framework and provide the guideposts 

for the Corps when implementing the 

PR&G. 

The Army solicited comment to 

identify where additional details may be 

warranted in the final rule and 

preamble, and where additional specific 

technical tools or methodologies may be 

warranted in follow-on Corps guidance 

documents. 

A comment was received during a 

virtual public meeting questioning how 

the ASPs will integrate with the 

Engineer Regulation 1105–2–100, which 

was recently updated with Engineer 

Regulation 1105–2–103. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the rule for any process 

and procedures necessary to implement 

the final rule. 

Section 234.4(b) Objectives for 

Federal water resources investments. 

This paragraph of the rule discusses the 

Federal objectives for Federal water 

resources investments, building on the 

definition of the Federal Objective 

provided in § 234.2(g). Section 2031 of 

WRDA 2007 describes more specifically 

how to accomplish the Federal 

Objective. The Federal investments 

must reflect national priorities, 

encourage economic development, and 

protect the environment by seeking to 

maximize sustainable economic 

development; by seeking to avoid the 

unwise use of floodplains; and by 


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protecting and restoring the functions of 

natural systems and mitigating any 

unavoidable damage to natural systems. 

Consideration of the P&R Guiding 

Principles when developing Federal 

water resources investments will assist 

in achieving the Federal Objective. 

Section 2031 did not provide a 

hierarchy for how to accomplish the 

objective nor does this final rule. 

National priorities may include 

general priorities (for example, health 

and safety) but can include more 

specific priorities that emerge and may 

evolve over time. There are often 

multiple national priorities at any one 

time, all of which should be considered 

and reflected in Federal water resources 

investments to the extent relevant. Such 

priorities can be found in laws or 

developed by the Administration and 

are informed by stakeholder and 

community engagements. The Corps 

will also fulfill its Tribal trust 

responsibilities under applicable 

treaties. 

Response: No changes were made to 

the final rule. Please see this preamble’s 

discussion of § 234.2(g) for a response to 

the public comments on the definition 

of the term ‘‘Federal Objective.’’ 

Section 234.4(c) Net public benefits. 

This paragraph of the rule describes the 

net public benefits to society, which are 

sought to be maximized. Per the P&R, 

public benefits encompass economic, 

environmental, and social goals. Public 

benefits include benefits that can be 

described in monetary terms and those 

that can be quantified or described in 

other ways or qualitatively. 

A key aspect of the PR&G is that the 

environmental, economic, and social 

impacts are interrelated. In addition, the 

potential solutions to a water resources 

challenge or opportunity may produce 

varying degrees of effects relative to 

environmental, economic, and social 

goals. As a result, the Corps will 

describe, assess, and consider the 

tradeoffs among the potential solutions 

to inform the decision-making process. 

The study should evaluate all key 

benefits and costs to society that are 

relevant to the investment decision. The 

extent to which the alternatives would 

have effects across the three categories 

will naturally vary across Corps studies. 

The PR&G emphasizes that relevant 

environmental, social, and economic 

effects should all be considered and that 

both quantified and unquantified 

information will form the basis for 

evaluating and comparing potential 

Federal investments in water resources 

to the Federal Objective. The ASPs 

make clear that the Corps will use 

monetized and quantified data to the 

extent practicable, but that unquantified 

information will be fully considered as 

well. This more integrated approach 

will allow decision-makers to view a 

more complete range of effects of 

alternative actions and will lead to more 

socially beneficial investments. 

Some benefits may be difficult to 

categorize as economic, environmental, 

or social. Analysts should be as specific 

as possible when categories cannot 

easily be assigned and to describe the 

relevance when evaluating alternatives. 

Double-counting should be avoided. In 

addition, when economic, 

environmental, and social goals 

compete, the Corps will describe such 

instances and include the 

considerations in the tradeoff analysis 

(see § 234.10(b)). 

Under the ASPs, consideration of the 

range of economic, environmental, and 

social benefits is an integral component 

of the planning process. Development of 

a comprehensive plan to address the 

water resources challenge or 

opportunity must begin in the earliest 

phases of the planning process and 

continue throughout the process. 

The Army solicited comment on 

whether net public benefits should be 

described without the additional step of 

categorizing them into economic, 

environmental, and social categories, in 

order to display all benefits in their 

entirety without the risk of doublecounting or having to identify a specific 

benefit category when there may be 

overlap. 

The Army received a number of 

comments on this topic. Several 

commenters indicated that 

environmental, economic, and social 

impacts should be displayed separately. 

One commenter indicated that 

providing both combined and 

segregated data may provide a better 

understanding of projects as a whole 

and in parts but indicated that the 

benefit-to-cost ratio should not 

commingle non-economic costs in an 

economic efficiency analysis. Another 

commenter indicated that net public 

benefits should be described and 

displayed in separate national accounts 

for analysis, evaluation, and 

comparison. It suggested that tradeoffs, 

double-counting, overlaps, and other 

relationships between national accounts 

can be more easily identified when 

displayed in separate accounts. A 

commenter suggested that benefits 

should not be categorized as they felt 

that avoiding categorization implicitly 

avoids double-counting and allows the 

benefits to be included independent of 

any bias or importance ascribed to a 

particular category. Another felt that 

they should not be categorized as doing 

so suggests sharp distinctions between 

economic, environmental, and social 

effects. 

One comment suggested the 

consideration and evaluation of a range 

of benefits (environmental, economic, 

and social), especially for natural and 

nature-based solutions. Related 

comments focused on including 

environmental and social considerations 

in the comprehensive evaluation of 

costs and benefits. 

Another commenter indicated that 

details on the methodology for 

determining net public benefits are not 

included in the rule and said that it is 

unclear how economic benefits 

calculated in the traditional national 

economic development approach will 

be reformulated to remove the bias 

toward higher property values, which it 

said is inherent to the calculation of 

avoidable damages. Multiple 

commenters mentioned the need for 

future guidance on how net benefits will 

be determined and displayed. One 

comment specifically called for 

clarification on how this concept will be 

used in pricing water supply storage. 

Several commenters recommended 

including in the rule language from the 

Interagency Guidelines stating that there 

is no hierarchy among environmental, 

social, and economic benefits to ensure 

that economic objectives do not remain 

the driving force. However, one 

commenter suggested that life safety be 

given priority over all other 

considerations. 

One commenter indicated that 

adherence to the P&G’s national 

economic development objective, which 

avoids internal redistribution of 

economic benefits and costs, is 

inconsistent with elements of social 

impacts where the intent is the 

redistribution of benefits towards 

disenfranchised communities, and also 

said that a philosophical reconciliation 

needs to be explicitly addressed or a 

higher emphasis placed on regional 

economic development. 

Response: No changes were made to 

the final rule. Net public benefits will be 

determined based on the economic, 

environmental, and social benefits and 

costs to society as a whole. There is no 

stated goal of redistribution of benefits 

for Corps projects but rather an 

emphasis on analyses and metrics that 

can account for communities with 

environmental justice concerns and 

Tribal lands. The use of social impacts 

(positive or negative) in the evaluation 

of potential Federal actions will allow 

the direct consideration of effects that 

are not captured by traditional 

economics. Any new metrics or 

monetization will be economically and 

scientifically sound. 


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5See https://www.whitehouse.gov/wp-content/ 

uploads/2024/02/ESGuidance.pdf. Last accessed 

May 21, 2024. 

Regional economic development 

effects are the changes in the 

distribution of economic activity that 

would result from implementation of an 

alternative plan. These economic effects 

amount to a transfer of resources from 

one part of the Nation to another (either 

from one region of the country to 

another, or within a region). They 

accrue in a local area or region but are 

offset by equivalent losses elsewhere in 

the country. A separate regional 

economic development analysis can 

account for the transfer effects of a 

proposed Federal investment where the 

effects of spending or jobs on the local 

area may be a consideration. 

The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

The Army solicited comment on 

whether it should be acknowledged that 

Tribal benefits are part of the trust 

responsibility in implementing the 

PR&G. 

Response: No changes were made to 

the final rule. In many circumstances, 

Indigenous Knowledge can be used to 

inform the benefits that may accrue as 

a result of any given alternative 

providing more transparency on the 

entirety of benefits provided to better 

inform decision-making. Some benefits 

are also difficult to monetize or 

quantify, for example, non-use values of 

wildlife loss (such as existence or 

bequest values), or some culturally 

valued experiences (for example, 

spiritual connection to nature and 

option to lead a subsistence way of life). 

The Army solicited comment on 

approaches and tools that may be 

employed to best enable the Corps to 

have consistent and transparent 

implementation, including using any 

final guidance provided by the Office of 

Management and Budget (OMB) on 

ecosystem services in response to its 

August 2, 2023, proposal (88 FR 50912). 

OMB finalized its ecosystem services 

guidance, ‘‘Guidance for Assessing 

Changes in Environmental and 

Ecosystem Services in Benefit-Cost 

Analysis,’’ in February 2024.5

The Army received some comments 

suggesting potential tools and 

considerations regarding the use of 

ecosystem services valuations when 

assessing project alternative plans. One 

commenter indicated that the ASPs 

should state that the Corps must 

account for the value of ecosystem 

services lost as a project cost, and 

account for the value of ecosystem 

services gained as a project benefit and 

that potential mitigation measures may 

not be used to offset the loss of 

ecosystem services. Another commenter 

mentioned that discounting 

methodologies applied to ecosystem 

services or natural resources incorporate 

the impact of potential scarcity into 

future cost/value of these natural 

services and resources. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. Ecosystem 

service impacts will be considered in 

the benefit costs analysis as appropriate. 

The Army disagrees that mitigation may 

not be used to offset the loss of 

ecosystem services. 

The quantification of benefits relates 

to several evolving fields and new 

methods may develop over time. The 

PR&G and the ASPs emphasize that 

benefits should be monetized, when 

possible, quantified when they cannot 

be monetized, and described when 

neither monetization nor quantification 

is possible with available methodologies 

and data. Where qualitative descriptions 

and analysis are used, they should be of 

sufficient detail and quality to enable 

the decision-maker to make informed 

decisions. 

The Army solicited comment on 

whether life safety benefits should be 

specifically identified, and if so, under 

which of the three benefits categories. 

Several commenters responded to this 

inquiry. One responder indicated that 

life safety benefits should be identified, 

include national security, and be 

considered under other social effects. 

Another responder indicated that they 

should be identified and have a greater 

focus while being integrated across 

economic, environmental, and social 

categories. Another responder indicated 

that they should be front and center to 

any analysis and not placed in any one 

category. 

Response: No changes were made to 

the final rule. Life safety benefits will be 

displayed in the social benefits category. 

The Corps will review existing guidance 

and provide updated guidance, where 

warranted, following completion of the 

final rule. 

Section 234.4(d) Applicability. This 

paragraph describes the projects and 

programs that must use the ASPs and 

outlines those projects and programs 

that are excluded from the requirements 

of this rule. Essentially, the PR&G apply 

to all Corps projects and programs that 

are not identified as excluded in 

§ 234.4(d)(2) or granted an exception 

under § 234.3. Even though such 

projects or programs would be excluded 

from the full application of the ASPs 

and the PR&G, those projects and 

programs should still strive to meet the 

intent of the ASPs by applying similar 

concepts where relevant. 

With respect to a project or program 

that qualifies for a NEPA categorical 

exclusion, such exclusion does not 

automatically trigger an exclusion for 

applicability of the ASPs. However, 

projects or programs may meet the terms 

of an exclusion under both NEPA and 

this rule. 

This rule will also apply to nonFederal interests who undertake 

feasibility studies to support an 

authorization to construct a Corps water 

resources development project, such as 

under Section 203 of WRDA 1986, as 

amended (33 U.S.C. 2231). 

The following actions are excluded 

from the ASPs as these actions and 

activities do not result in the 

consideration of a proposed Federal 

water resources investment: Corps 

Regulatory actions; real estate actions; 

technical services programs, such as 

Planning Assistance to States and Flood 

Plain Management Services; Section 408 

actions; the Public Law 84–99 program; 

the Water Infrastructure Finance and 

Innovation Act Program; environmental 

infrastructure projects; land 

management plans; operation and 

maintenance (O&M) activities carried 

out in a manner consistent with an 

existing O&M manual or O&M plan; 

Interagency and International Services 

and Support for Others program actions; 

research or monitoring activities; and 

emergency actions. 

Monitoring (e.g., water quality 

monitoring or fish monitoring) and 

research activities are excluded from the 

requirements of this rule. Such activities 

may be used to inform Federal 

investments in a proposed or existing 

water resources development project, 

but they are not themselves a water 

resources development project, 

program, or a related Federal investment 

decision. The Interagency Guidelines 

provide that the PR&G are not intended 

to include data collection, except 

insofar as its purpose is to inform an 

investment decision involving 

permanent site-specific actions. 

The Corps’ Interagency and 

International Services and Support for 

Others program actions are excluded 

from the requirements of this rule. 

These actions are provided on a 

reimbursable basis and as such are 

assistance to other programs and not a 

proposed Federal investment by the 

Corps, as are the other activities covered 

under the ASPs. All the work that the 

Corps performs under these programs is 

requested by other agencies that pay the 


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Corps the full cost of providing these 

services. For example, on a 

reimbursable basis, the Corps provides 

technical assistance under this program 

to non-DoD Federal agencies, State and 

local governments, Tribal Nations, 

private U.S. firms, international 

organizations, and foreign governments. 

The Corps provides engineering and 

construction services, environmental 

restoration and management services, 

research and development assistance, 

management of water and related land 

natural resources, relief and recovery 

work, and other management and 

technical services. While some of this 

work may be related to a water 

resources investment by another Federal 

agency, it is not related to an investment 

decision by the Corps and, as such, is 

not covered under the Corps ASPs. 

Although excluded from the Corps 

ASPs, the Corps’ international programs 

are subject to other international 

environmental requirements and DoD 

environmental commitments. 

In addition, those projects, programs, 

or plans that meet the threshold criteria 

in the Table 1 are generally for routine 

investments. In most cases, these 

investments would not have significant 

adverse effects on water resources. 

Projects or plans implemented under 

programmatic authorizations from 

Congress (e.g., Tribal Partnership 

Program and Continuing Authorities 

Program) are potentially included under 

the ASPs depending on the monetary 

thresholds for the actions. Any study, 

project, or plan that meets the monetary 

thresholds contained in Table 1 would 

need to be assessed to determine the 

appropriate level of analysis to be 

applied. Any study, project, or plan that 

falls below the $15 million threshold 

would be excluded from the ASPs. 

Also included in the list of exclusions 

are those programs, plans, or projects 

that fall under an exception in § 234.3. 

Excluded activities within these 

projects or programs will follow the 

relevant laws, Tribal treaty and reserved 

rights, regulations, and general planning 

processes, and will still strive to meet 

the intent of the PR&G by applying 

similar concepts where relevant. 

The Army solicited comment on 

whether modifications allowed under 

the Public Law 84–99 program should 

not be excluded from the requirements 

of this rule. Two responders commented 

on the ASPs applicability to the Public 

Law 84–99 program. One commenter 

indicated that the Corps should apply 

the improved planning framework in 

the ASPs to Public Law 84–99 to the 

greatest extent practicable to help 

communities prepare for natural 

disasters and ensure these projects are 

designed and evaluated for the full 

range of comprehensive benefits, and 

that the process for applying these ASPs 

to the Public Law 84–99 program should 

be scaled in a manner to be consistent 

with the emergency response nature of 

this program. Another responder 

indicated that the Army and the Corps 

should consider removing or limiting 

the proposed exclusion of the Public 

Law 84–99 program regarding repair or 

restoration activities on flood control 

and shoreline management works 

threatened or destroyed by flooding. 

However, the commenter indicated that 

it is appropriate to retain the exclusion 

for inspections, preparedness activities, 

technical assistance, direct flood 

fighting assistance, rescue operations, 

and post-flood response. 

Response: No changes were made to 

the final rule. Upon further 

consideration, modifications 

implemented under the Public Law 84– 

99 program are better addressed in the 

Public Law 84–99 rule (33 CFR part 203) 

and associated guidance and thus have 

been excluded from the PR&G. 

The Army solicited comment on 

whether additional exclusions should 

be added, such as dredged material 

management plans, Tribal Partnership 

Program activities, Continuing 

Authorities Program, and major 

rehabilitation evaluation reports due to 

scope, scale, level of investment, project 

partner, technical nature of the product, 

etc. 

One commenter suggested that the 

ASPs should be applied to operating 

manuals and water control plans. One 

comment sought the addition of 

renewals and replacements to the 

actions in § 234.4(d)(2)(x). Another 

suggested removing § 234.4(d)(2)(xv) or 

prescribing a process for these 

decisions. It was also suggested that 

§ 234.4(d)(2)(xiv) be deleted or clarified 

with provisions. Another commenter 

indicated that the ASPs should apply to 

existing projects. Comments received 

from a Tribal Nation and a Tribal 

Organization also recommended that the 

PR&G should apply to existing 

operations of Corps’ projects affecting 

Tribal land or water. One commenter 

responded and suggested that when 

formulating dredged material placement 

alternatives, the Corps should account 

for all benefits of beneficial use 

placement opportunities, including the 

economic value of clean dredged 

material for ecosystem restoration and 

storm damage reduction and cost 

savings available. 

One comment recommended adding a 

sentence indicating that excluded 

projects should still strive to meet the 

intent of the PR&G and ASPs by 

applying similar concepts where 

relevant. 

Response: No changes were made to 

the final rule. The ASPs will apply to all 

new Army Civil Works’ water resources 

investments that meet the threshold 

criteria contained in Table 1, to include 

feasibility studies; general reevaluation 

reports; major rehabilitation reports; 

studies performed under the continuing 

authorities program of the Corps; 

studies to support significant changes to 

operations including any such changes 

that warrant preparation of an 

environmental impact statement, reallocation studies, and studies 

conducted under Section 216 of the 

Flood Control Act of 1970 (33 U.S.C. 

349a); and any other project or program 

not otherwise excluded under 

§ 234.4(d)(2). 

The suggestion to add operating 

manuals and water control plans under 

the ASPs was not adopted for O&M 

activities that are carried out in a 

manner consistent with the existing 

approved O&M manual or plan that are 

routine in nature. However, the ASPs 

would apply to significant proposed 

changes to an existing O&M plan that 

may be controversial, significant 

changes to the existing plan to meet new 

goals, and other significant changes that 

may warrant a fresh exploration of the 

options. 

Section 234.4(d)(2)(xiv) was modified 

to remove ‘‘that meet the threshold 

criteria for exclusion or’’. This was done 

to clarify that Table 1 determines the 

cost-based threshold criteria for the 

application of the ASPs to projects, 

programs or plans. 

Section 234.4(d)(2)(xv) was retained 

to preserve the Assistant Secretary of 

the Army for Civil Works’ ability to 

make exceptions on a case-by-case basis. 

The ASPs provide a framework to 

govern how the Corps would evaluate 

proposed water resources investments 

and do not apply to existing projects 

where no changes are proposed. The 

Corps will review existing guidance and 

provide updated guidance, where 

warranted, following completion of the 

final rule. 

In addition, the Army solicited 

comment on whether any of the actions 

identified as proposed exclusions in the 

rule should not be excluded, in which 

case the ASPs would apply to them. The 

Army did receive input in response to 

whether any of the actions identified as 

proposed exclusions should not be 

excluded. This input was related to the 

Public Law 84–99 program and those 

comments are addressed earlier in this 

section of the preamble. 

Response: The final rule clarifies the 

scope of the O&M exclusions. No other 


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changes were made to the list of 

exclusions in the final rule. 

The Army solicited comment on 

whether watershed studies should be 

specifically included to ensure that they 

align with the goals of the PR&G and 

result in better outcomes for integrated 

water resources management. 

A number of respondents indicated 

that studies should follow a watershed 

approach. Multiple responders 

indicated that the PR&G should apply to 

watershed studies. One responder 

indicated that if watershed studies 

include the development of specific 

future projects or potential future 

projects, they should follow the ASPs. 

The specific requirement for such plans 

might be less than the full planning 

approach outlined for specific projects, 

but these studies seek to maximize net 

public benefits in a manner consistent 

with the ASPs and the Federal 

Objective. 

Response: No changes were made to 

the final rule. 

The Army solicited comment on 

whether watershed studies should be 

excluded from the requirements of this 

rule. A responder indicated that the 

concept of watershed studies brings its 

own set of challenges, highlighted by 

concerns regarding the practicability of 

advancing individual Civil Works 

projects within broader watershed study 

areas. 

Response: No changes were made to 

the final rule. Watershed studies do not 

typically result in specific Federal 

investment construction 

recommendations; in those cases, they 

would not be subject to the ASPs. If a 

watershed study does include 

recommendations that meet the 

monetary thresholds for inclusion, then 

the ASPs would apply. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule. 

Section 234.5 Level of analysis. 

Once a decision is made that the PR&G 

apply under § 234.4, the next step is to 

determine what level of analysis should 

be applied. 

Section 234.5(a) Standard and scaled 

level of analysis. There are two levels of 

analysis under the PR&G that are 

applied based on the scope and 

magnitude of the proposed projects, 

programs, or plans, and the significance 

of the Federal investment. The different 

levels of analysis allow for investment 

decisions to be made effectively and 

efficiently. Many small, routine 

activities are excluded from the PR&G 

analysis under the rule (refer to 

§ 234.4(d)(2)) such as O&M activities 

that are carried out in a manner 

consistent with the existing approved 

O&M manual or routine investments in 

invasive species removal. A scaled 

PR&G analysis would generally include 

fewer alternatives with a more 

streamlined formulation process and 

justification procedures than a standard 

analysis, while still adhering to the 

PR&G and resulting in a systematic 

decision. A scaled analysis reflects the 

scope and complexity of the problem 

being assessed. The ASPs include a 

table that provides the monetary 

threshold criteria to be used for 

identifying the types of projects, 

programs, or plans and their 

corresponding level of analysis. 

The Army solicited comment on 

whether the proposed rule language 

regarding benefit-cost analysis in this 

section is adequate or whether 

additional content or examples are 

needed in the rule text. The Army also 

solicited comment on the types of 

analyses that may best be used to 

evaluate the full range of public benefits 

under both standard and scaled levels of 

analysis. 

The Army received comments that 

more rigorous analysis may be 

warranted if significant non-monetized 

effects are likely to occur. The Army 

also received comments that the 

standard level of analysis is appropriate 

for any proposal that would require an 

Environmental Impact Statement under 

NEPA. Another comment advised indepth analysis when the uncertainty is 

so high that the performance metric 

ceases to be informative. 

Other comments were that the benefit 

transfer methods discussed in this 

section of the proposed rule were weak 

and that the Army should define what 

should be similar for projects to apply 

other studies’ benefit functions, and to 

include guidance on how to scale or 

weight studies to better match the local 

context. Another comment expressed 

concern over the use of benefit transfer 

and expressed the need for more clarity 

regarding when it is appropriate. 

One organization offered that a 

benefit-cost analysis tool has an 

inherent error that could be avoided 

with external review. One commenter 

expressed concern that the ASPs should 

also clarify that they do not establish a 

new requirement for a positive, 

quantified benefit-cost determination to 

justify the recommendation of an 

ecosystem restoration project. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.5(b) Determining the 

appropriate level of analysis. This 

paragraph of the rule describes the 

process for determining the appropriate 

level of analysis under the PR&G. In 

addition to the considerations and 

descriptions provided in § 234.5(a) for 

the scaled and standard analysis and the 

criteria provided in Table 1 to be used 

as a general guide, the ASPs note that 

professional judgment and available 

resources are also important factors in 

determining the appropriate levels of 

analysis. 

The Army solicited comment on 

additional considerations to be applied 

when determining the appropriate level 

of analysis under the PR&G and whether 

additional clarity is needed on how 

such determinations may be made. 

One commenter indicated that 

mechanisms other than project cost 

should be considered to determine the 

appropriate level of analysis and 

indicated that planning efforts that do 

not exceed the monetary thresholds can 

inform major investment decisions that 

vastly exceed these thresholds, and it 

would be difficult to reassess climate 

change during the implementation 

phase if a quantitative climate change 

analysis is not included in the planning 

phase. 

One commenter indicated that the 

rule fails to identify specific criteria that 

will be applied to determine the level of 

analysis, and to address this lack of 

clarity additional content or examples 

are needed in the regulatory text. 

Another commenter indicated that the 

Corps should consult with State and 

local partners when determining the 

appropriate level of analysis. In 

particular, the Corps should work with 

State partners that have permitting and 

review obligations to ensure that the 

planning analysis, including 

investigations and data collection, meets 

both the Corps’ and State review data 

needs. Another commenter expressed 

concern that the ASPs puts too much 

emphasis on monetary criteria and 

inadequate emphasis on potential 

environmental impacts in discussing 

how the Corps will determine which 

level of analysis to apply to a particular 

project. The commenter recommended 

including language describing factors 

that could justify deviating from Table 

1 in the text of the final rule. The 

responder also recommended adding 

language to Table 1 to clarify that the 

monetary thresholds are not decisive on 

their own. Finally, this responder 

indicated that that the standard level of 

analysis is appropriate for any project 

that would require an Environmental 

Impact Statement under NEPA. Another 

commenter stated that industrial-scale 

offshore wind projects that involve 

significant ocean area must trigger the 

full PR&G and must require in-depth, 


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extensive scientific analysis as part of 

the Corps’ regulatory process to ensure 

no harm to the ocean ecosystem and the 

communities that depend on access to 

fisheries. 

Response: No changes were made to 

the final rule. This rule does not apply 

to the Corps’ Regulatory program. The 

Corps will consult with Federal, State, 

and local partners in determining the 

appropriate level of analysis to include 

State partners with permitting and 

review obligations. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule 

regarding the level of analysis to be used 

in planning studies. 

Section 234.5(c) Scope and magnitude 

of analysis required. The threshold 

criteria provided in Table 1 are 

guidelines to establish an appropriate 

scope and magnitude for the analysis 

based on the Federal cost (excluding the 

non-Federal share) of a proposed 

activity, measured in terms of the 

present value of the Federal investment. 

The present value is the current dollar 

value, after discounting. In the proposed 

rule, Table 1 was taken straight from the 

Interagency Guidelines. The monetary 

thresholds were designed to be relevant 

to all agencies implementing the PR&G 

to provide a common framework and 

baseline. Programmatic-level analyses 

require the detail necessary to ensure 

decision-makers have sufficient 

information to make an informed 

decision, but they may be conducted 

differently than project-level analyses. 

The Corps may choose to analyze the 

effects of a Federal investment at a 

higher level of detail than called for by 

Table 1. 

The Interagency Guidelines state that 

the P&R specifically apply to 

operational modifications, 

modernization of existing facilities, dam 

safety modifications, culvert 

replacements, water conveyance, and 

fish ladder modifications. The analysis 

of significant O&M investments of this 

kind would be subject to the thresholds 

in Table 1. O&M activities resulting in 

consequential effects on water quantity 

or water quality that have not been 

previously analyzed should be 

appropriately analyzed using either the 

project- or programmatic-level processes 

laid out in the rule. More significant 

operational changes, such as adding a 

new project purpose or significantly 

modifying project outputs, warrant 

analysis under the PR&G. However, 

routine O&M activities are excluded (see 

§ 234.4(d)). O&M activities that are 

included in original project 

authorizations do not require a separate 

analysis if the activity is carried out in 

a manner that is consistent with that 

authorization. Significantly changed 

O&M plans or those changed to meet 

new goals may require a new analysis at 

the standard or the scaled level. 

The Army solicited comment on 

whether the values provided in Table 1 

are the appropriate thresholds to apply 

for the Corps and also whether the 

amounts should be adjusted for inflation 

from the original amounts provided, 

which were developed in 2014. The 

Corps further solicited comment about 

what data should be used to make those 

adjustments going forward, such as 

Gross Domestic Product deflator, 

Consumer Price Index, or something 

else. The Army solicited comment on 

whether the Corps should account for 

the non-Federal share of the costs in 

setting these thresholds to reflect the 

total cost to society (Federal plus nonFederal costs) of the proposed 

investment. The Army also solicited 

comment on whether more clarity is 

needed for which types of projects 

would fall under the project vs. program 

vs. plan criteria. 

The Interagency Guidelines state that 

if the Corps develops a revised proposed 

Table 1 specific to the Corps, the 

following considerations should be 

taken into account: (1) thresholds 

relevant to the specific activities of the 

Corps; and (2) criteria relevant to the 

Corps for determining the level of 

analysis. The Army solicited comment 

on whether either of those 

considerations warrant a revision to 

Table 1 for the Corps. 

Comments received from a Tribal 

Nation and a Tribal Organization 

recommend threshold criteria provided 

in Table 1 should not limit the 

evaluation of proposed activities that 

could impact Tribal Nations. Another 

commenter recommended indexing the 

threshold values to account for 

economic conditions since 2014. 

Response: Table 1 was modified in 

response to comments received. 

Threshold values and ranges were 

updated and increased to reflect total 

investment (Federal and non-Federal). 

These thresholds are not intended to 

preclude or minimize the Tribal trust 

responsibility and resulting 

Government-to-Government 

consultation requirements when 

determining the scope and scale of 

analysis where a Federal action may 

have Tribal implications. 

Section 234.6 The planning process. 

Section 234.6(a) Introduction. This 

paragraph describes how the planning 

process will incorporate the Guiding 

Principles from the P&R in the analysis 

and development of Corps Federal 

investments in solving water resources 

problems. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. In response to comments from 

Tribes and a Tribal Organization 

concerned that the Army recognizes 

Tribal treaty rights, the following text 

was added to this section of the rule: 

‘‘The Corps will identify impacts to 

Tribal treaty and water rights at the 

earliest phases and throughout the plan 

evaluation process, screening 

alternatives that impact Tribal treaty 

and water rights.’’ 

Section 234.6(b) National 

Environmental Policy Act. This 

paragraph encourages the Corps to 

integrate the NEPA and the PR&G 

processes as much as possible to 

produce a single analytic document to 

meet both requirements. Compliance 

under NEPA and this rule does not 

eliminate the Corps’ obligations under 

other statutory requirements (for 

example, Endangered Species Act 

compliance) or fulfillment of Tribal 

trust responsibilities. 

The Army solicited comment on how 

the navigation program can use tools 

and resources to directly assess and, as 

appropriate, demonstrate project 

benefits for disadvantaged communities 

and other nearby communities, in 

particular. 

One comment was received 

requesting that the Corps update its 

models and policies to better reflect the 

full economic and environmental 

benefits of channel expansion projects. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.6(c) Guiding principles. 

This section describes the Guiding 

Principles for the planning process that 

the P&R identify, which are 

environmental justice, avoiding the 

unwise use of floodplains, healthy and 

resilient ecosystems, public safety, 

sustainable economic development, and 

a watershed approach. The Guiding 

Principles are intended as overarching 

concepts to ensure that Federal water 

resources investments best serve the 

public. 

Many comments suggested that the 

rule provides insufficient guidance for 

achieving goals aligned with the 

Guiding Principles. Another comment 

suggested including a new Guiding 

Principle associated with rising sea 

levels. 

Response: No changes were made to 

the final rule. The Guiding Principles 

were identified in the P&R. The Corps 

will review existing guidance and 


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provide updated guidance, where 

warranted, following completion of the 

final rule. 

Section 234.6(c)(1) Environmental 

justice. This section defines the term 

‘‘environmental justice’’ and states that 

communities with environmental justice 

concerns will be ‘‘at the front and center 

of studies.’’ 

The Army received multiple 

comments about the Guiding Principle 

of environmental justice. The majority 

of commenters support the inclusion of 

environmental justice as a Guiding 

Principle. Comments recognized the 

benefits to communities with 

environmental justice concerns of the 

broader evaluation framework and the 

decision-making criteria in the ASPs. 

Another organization suggested adding 

text from the preamble to the rule itself 

to highlight potential issues that should 

be evaluated. 

Some commenters requested 

additional specifics about how the 

Corps will realize the goals of 

environmental justice, including how 

relevant communities will be identified. 

One commenter mentioned the need to 

define communities with environmental 

justice concerns and disadvantaged 

communities. 

Some commenters recommended 

specific tools, techniques, or procedures 

to help realize these goals; others called 

for environmental justice to be 

prioritized throughout all aspects of the 

ASPs. Others advocated to strengthen 

the standard for project selection. 

Commenters noted the need to 

transparently include communities in 

decision-making. One commenter 

recommended targeted outreach to 

ensure equitable access to participation. 

Another commenter asked how 

communities would be compensated 

should they endure negative 

environmental impacts from Corps’ 

projects. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. In 

accordance with the Water Resources 

Development Act of 2007, Section 2036, 

the Corps is required to develop a 

mitigation plan to address 

environmental impacts from Corps 

projects. If a community is enduring 

long-term negative environmental 

impacts from a Corps project, 

appropriate response could be 

considered on a case-by-case basis in 

accordance with Federal law, 

regulation, and policy. 

The opportunity for meaningful input 

by affected communities is a component 

of the definition of the term 

‘‘environmental justice.’’ Comments 

pertaining to outreach and collaboration 

with communities with environmental 

justice concerns are addressed under 

this preamble’s discussion of § 234.6(d). 

Additional commenters expressed 

concerns, not about the Guiding 

Principle itself, but about the tone with 

which environmental justice is 

discussed in the rule. Some wished for 

the principle to be emphasized more 

strongly; others expressed concern that 

the rule over-emphasizes the 

importance of environmental justice and 

that such over-emphasis ultimately 

could impair the quality of the Corps’ 

decision-making, especially in cases 

when achieving environmental justicerelated goals may appear to conflict 

with the objectives or feasibility of 

specific projects. 

Response: The Army reiterates that 

environmental justice is an important 

Guiding Principle of these ASPs, 

identified in the P&R alongside the 

other Guiding Principles. The Army 

disagrees with the supposition that any 

of these principles, including 

environmental justice, will negatively 

impact the Corps’ work. On their own, 

the Guiding Principles do not mandate 

specific mission or project outcomes; 

rather, they act as policy guideposts to 

ensure that the Corps serves the public 

in the execution of its authorities. 

One commenter asserted that the 

inclusion of environmental justice as a 

Guiding Principle exceeds 

Congressional intent and asked for it to 

be removed from the rule. 

Response: The P&R identifies 

environmental justice as a Guiding 

Principle, and the consideration of 

impacts on local communities embodied 

by that principle is reflected in Section 

2031(a) and (b)(3) of WRDA 2007. 

Congress expressly directed the Corps to 

develop these ASPs for the PR&G in 

Section 110 of WRDA 2020. The Army 

is executing this direction. 

Some commenters, including a Tribal 

Organization, suggested that remedying 

past inequities should be a Guiding 

Principle or a standard decision-making 

factor in the planning criteria for 

existing and future water resources 

development projects. One comment 

from a Tribal Nation supported the 

inclusion of subsistence and social 

impact assessments, and greater 

transparency for evaluating benefits and 

impacts under environmental justice 

analysis of a proposed project. Through 

Government-to-Government 

consultation with another Tribal Nation, 

a comment was made to differentiate 

broader environmental justice concerns 

from protected Tribal treaty or reserved 

rights. 

Response: The Guiding Principles are 

defined in the P&R. The Army agrees 

that subsistence activities should be 

considered in agency decision-making 

under the environmental justice 

Guiding Principle. The rule includes 

this language at § 234.6(c)(1)(ii). The 

Corps will review existing guidance and 

provide updated guidance, where 

warranted, following completion of the 

final rule. 

Related to environmental justice, the 

Army solicited comment on how the 

navigation program can use tools and 

resources to assess and, as appropriate, 

demonstrate project benefits for 

disadvantaged communities and other 

nearby communities. 

Commenters representing Tribes 

recommended a social impact 

assessment tool, not specific to 

navigation, for identifying impacts on 

Tribes and other communities with 

environmental justice concerns. These 

comments are addressed under the 

discussion of § 234.9(c) in this 

preamble. 

Response: No changes were made to 

the final rule. 

Section 234.6(c)(2) Floodplains. This 

section states that Federal investments 

shall strive to sustain floodplains’ 

natural and beneficial functions to the 

maximum extent practicable. 

The Army received comments 

expressing support for the inclusion of 

floodplains in the Guiding Principles. 

Some sought for the principle to be 

strengthened, especially with respect to 

long-term implications of a changing 

climate, or to be aligned expressly with 

current Corps guidance and other 

Federal policy documents. Other 

commenters wanted to see explicit 

language in the ASPs ensuring that 

projects are self-sustaining and do not 

result in the unwise use of a floodplain. 

A commenter suggested that the rule 

specifically address how the Corps 

would implement the Federal Flood 

Risk Management Standard established 

under Executive Order 13690 

(Establishing a Federal Flood Risk 

Management Standard and a Process for 

Further Soliciting and Considering 

Stakeholder Input) (80 FR 6425 (Feb. 4, 

2015)). 

The Army solicited comment on how 

the Corps should evaluate the selfsustainment of a floodplain that is 

occupied or inhabited. Some 

commenters suggested a variety of 

specific assessment methodologies. 

They also recommended working with 

academic experts to identify approaches 

after the ASPs are finalized. 


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Response: The following information 

was added to the Rule: ‘‘To identify 

floodplain areas for the purpose of this 

section, the Corps will use the bestavailable and actionable science 

including a climate-informed science 

approach.’’ The Army reiterates that 

effective floodplain management and 

increasing resilience to flooding and 

storms are important Guiding Principles 

of these ASPs and the PR&G. For a 

discussion specific to the term ‘‘unwise 

use of floodplains,’’ see § 234.2(s) of this 

preamble. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.6(c)(3) Healthy and 

resilient ecosystems. The ASPs reinforce 

the directive in WRDA 2007 to protect 

and restore ecosystem functions and to 

minimize and mitigate those impacts if 

they cannot be avoided. The rule states: 

‘‘Alternatives shall protect the existing 

functions of ecosystems and may restore 

the health of damaged ecosystems to a 

less degraded and more natural state 

where feasible . . .’’ Alternatives must 

include avoidance, minimization, and 

compensatory mitigation considerations 

for each identified alternative solution. 

Appropriate mitigation of adverse 

effects is to be an integral part of each 

alternative plan. 

Some commenters suggested that the 

phrase ‘‘may restore’’ be changed to 

‘‘shall restore,’’ and others suggested 

removing ‘‘where feasible’’ from the 

text. Commenters also recommended 

specific approaches for how best to 

follow this Guiding Principle. 

The Army solicited input on whether 

there are alternative forms to measure 

ecosystem health such as specific 

assessment methods in particular for the 

Corps’ aquatic ecosystem restoration 

mission. 

One commenter recommended 

quantification of multi-purpose benefits 

and effects of nature-based solutions. 

When evaluating water resources 

investment alternatives, the health of 

the affected ecosystem should be 

measured in its current condition 

(baseline) and projected under each of 

the alternatives being considered. A 

Tribal Organization commented that the 

current baseline may already be 

degraded by an existing project or as a 

cumulative effect of a different Federal 

action and that this should be 

considered when establishing the 

baseline conditions. 

When determining the environmental 

baseline for new water resources 

development investment decisions, the 

Corps does consider impacts by existing 

projects or Federal actions. 

Response: No changes were made to 

the final rule. Regarding ‘‘may’’ versus 

‘‘shall,’’ the Army notes that, while 

aquatic ecosystem restoration is one of 

the Corps’ missions, not all studies are 

authorized to restore damaged 

ecosystems. In some cases, imperative 

language would put the ASPs at odds 

with congressional authority. On the 

other hand, contingent language 

acknowledges potential opportunities. 

Thus, the original language has been 

retained. The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.6(c)(4) Public safety. The 

rule describes ‘‘public safety’’ in terms 

of loss of life and injury. It calls for 

alternatives to avoid, reduce, or mitigate 

significant risks to public safety. 

The Army solicited comment on 

whether the description of the term 

‘‘public safety’’ should be broadened 

and whether additional threats to public 

safety should be included for 

consideration beyond those related to 

natural events. 

Several commenters responded. One 

suggested that life safety should be 

recognized as a benefit of national 

security. Another commenter indicated 

that public safety should include both 

drought and flood resilience and 

stressed the role of water supply in 

ensuring public health and safety. Some 

commenters suggested that improved 

life safety be recognized as a benefit of 

many navigation projects. Another 

commenter indicated that alternatives 

should consider any risk of harm or 

injury to persons and property and 

should utilize qualified design 

professionals to achieve these safety 

goals. 

The Army solicited comment on 

whether life loss should be monetized. 

Some commenters supported 

monetizing loss of life, with one of these 

commenters suggesting that the Corps 

consider the methodologies used to 

determine the value of a statistical life 

presented in U.S. Department of 

Transportation and Federal Emergency 

Management Agency documents. 

Response: No changes were made to 

the final rule. The Army will consider 

additional factors in the discussion of 

public safety through future updates to 

planning and engineering guidance. 

However, the Army does not believe 

that changes to the rule are required to 

address these factors. 

The Corps includes an analysis of the 

risk to life safety in its flood and coastal 

storm risk management studies and in 

its dam safety modification studies. The 

Corps generally considers this risk in 

assessing costs and benefits and in 

formulating potential solutions. The 

Corps will review existing guidance and 

provide updated guidance, where 

warranted, following completion of the 

final rule, to include a review of 

Department of Transportation and 

Federal Emergency Management Agency 

approaches. 

Section 234.6(c)(5) Sustainable 

economic development. The term 

‘‘sustainable’’ is defined in the rule at 

§ 234.2(p). The sustainable economic 

development Guiding Principle in the 

P&R states, ‘‘alternative solutions for 

resolving water resources problems 

should improve the economic wellbeing of the Nation for present and 

future generations through the 

sustainable use and management of 

water resources . . .’’ 

Numerous commenters expressed 

support for the Guiding Principle of 

sustainable economic development. 

Commentors suggested that a set of 

quantitative and qualitative metrics 

and/or methodologies be developed for 

measuring sustainable development. 

Another commenter argued that the goal 

of sustainable development should be 

not just for humans and nature to 

coexist but to thrive. This commenter 

requested that the definition of 

sustainable development be 

strengthened accordingly. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. The need 

for metrics and methodologies will be a 

specific area of review. The Guiding 

Principle of sustainable economic 

development is defined in the P&R. The 

Army reiterates the importance of this 

Guiding Principle. 

Section 234.6(c)(6) Watershed 

approach. The term ‘‘watershed’’ is 

defined in the rule at § 234.2(s). When 

developing alternatives, the water 

resources problem being addressed 

should be analyzed on a watershedbased level to facilitate inclusion of a 

complete range of solutions, after 

considering the breadth of impacts 

across the watershed. 

The Army received multiple 

comments on the Guiding Principle of 

taking a watershed approach in the 

planning process. The majority of 

commenters expressed support for this 

principle. Some commenters offered 

suggestions for how best to implement 

this Guiding Principle. Some 

commenters worried that the watershed 

approach Guiding Principle effectively 

mandates a minimum scope 

(comprehensive, multipurpose 

watershed analysis) and geographic 


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scale for all Corps studies, increasing 

study costs and complexity. 

The Army solicited comment on 

example frameworks, tools, and 

methods for implementing a watershed 

approach, such as whether the 

Department of Energy’s Basin-Scale 

Opportunity Assessment methodology 

could be adapted for use under the 

ASPs. 

Response: No changes were made to 

the final rule. The Army reiterates the 

importance of this Guiding Principle in 

the PR&G. As a Guiding Principle, the 

watershed approach does not mandate 

specific study methodologies or 

outcomes. The approach does not 

require all studies to conduct robust and 

detailed watershed analyses at any 

specific scope or scale, or require a 

multipurpose or comprehensive 

watershed analysis; rather, it 

acknowledges that watersheds are 

complex systems and that water 

resources management entails 

identifying and addressing systemically 

interdependent problems. A watershed 

approach encourages Corps planning 

teams to maintain awareness of 

watersheds as systemic units. The Corps 

will review existing guidance and 

provide updated guidance, where 

warranted, following completion of the 

final rule. 

Section 234.6(d) Collaboration. 

Section 234.6(d)(1). This paragraph 

outlines an increased focus on 

collaboration for the Corps to improve 

decision-making and promote 

transparency. The Army recognizes that 

Tribal Nations, regional, State, local, 

and non-governmental entities, as well 

as communities and landowners, are 

interested in the water resources 

problems that affect them, have 

expertise, and share in the 

responsibility of managing and 

protecting public water resources. The 

Corps will seek to collaborate fully with 

a wide range of affected entities, 

stakeholders, and the public in all stages 

of the planning process. The Corps will 

initiate coordination with appropriate 

Federal or State agencies administering 

Federal laws as early in the process as 

practicable to fully integrate 

environmental considerations into the 

planning process, identifying early on 

critical information, analyses, and 

requirements needed for the planning 

decision and maximizing opportunities 

to avoid and minimize impacts to the 

human environment to the extent 

practicable. These engagements should 

account for the desired form and type of 

engagement from communities to ensure 

such engagements are culturally 

relevant and appropriate. Another key 

element of the enhanced collaboration is 

transparency, ensuring that Tribal 

Nations and interested parties are kept 

informed about the Corps’ process and 

various factors under consideration. The 

Army recognizes that enhanced 

collaboration and engagement will take 

time, skill, and commitment on the part 

of the Corps and project sponsors, as 

well as those who are engaging in the 

Corps’ process. 

Section 234.6(d)(1) also makes clear 

that enhanced collaboration does not 

obviate the need for Tribal consultation, 

where appropriate. In addition, Tribal 

consultation does not obviate the need 

for the Corps to ensure that enhanced 

collaboration with Tribal Nations 

occurs. Consultation and enhanced 

collaboration are not the same thing, 

and in certain circumstances, Tribal 

engagements result in a greater 

understanding of the Tribal Nations’ 

needs than what may be achieved in 

consultation. Tribal Nations may serve 

as Cooperating Agencies under the 

NEPA process, contributing their 

expertise on environmental issues. 

Engagement beyond consultation is 

necessary to improve overall 

relationships and communication with 

Tribal Nations and to identify areas for 

participation in and access to Civil 

Works programs. 

Multiple comments supported the 

intent of this section to enhance 

collaboration to ensure transparency, 

promote public participation, and have 

full collaboration with a wide range of 

affected Tribal, State, and local 

governments, non-governmental 

stakeholders, communities, and the 

general public. A significant number of 

letters were received requesting that the 

rule retain provisions that require the 

Corps to fully engage with local 

interests, stakeholders, and Tribal 

Nations. These letters also 

recommended that the Corps vigorously 

assess the impacts of climate change 

during project planning. 

One comment received through 

Nation-to-Nation consultation on the 

rule emphasized the importance of early 

and robust Government-to-Government 

consultation, not just collaboration, 

with Tribal Nations, and that 

consultation, both at the initial stage of 

formulating alternatives and following 

more detailed analysis of alternatives, is 

critical to identifying Tribal treaty rights 

and water rights that may be impacted 

by a potential water resources 

development project. The comment also 

stated that details regarding the timing 

and notification of Tribal partners 

would be helpful guidance to include in 

the rule. Another comment from a 

Tribal Organization representing seven 

Tribal Nations expressed concern that 

the Corps will not follow the extensive 

requirements to consult and collaborate 

as prescribed in the ASPs. 

One commenter expressed concern 

over Indigenous communities being 

informed of any changes that could be 

made on potentially sacred lands. 

Response: In response to comments 

received, the rule was revised. The 

Corps acknowledges the unique 

relationship with Tribal governments 

and is committed to meeting its Federal 

trust responsibility in accordance with 

the Corps’ Civil Works Tribal 

Consultation Policy. The rule was 

amended in § 234.6(d)(1) to 

acknowledge that robust, early 

collaboration with Tribes is in addition 

to the requirement to conduct early, 

meaningful, and robust Government-toGovernment consultation with Tribal 

Nations. 

Section 234.6(d)(2). Although this 

paragraph recognizes that tools and 

levels of engagement will vary based on 

a variety of factors, the section requires 

use of best practices of engagement, 

such as the spectrum of engagement 

from the International Association for 

Public Participation and modifications 

from various U.S. government agencies, 

including the Corps. In addition, the 

Corps will ensure that it considers and 

incorporates the information that it 

receives from Tribal Nations and 

external sources into the problem 

definition, the forecast of future 

conditions, and the alternatives 

analysis. See § 234.6(c)(1) of the rule 

and the discussion of § 234.6(c)(1) in the 

preamble for other considerations in 

engaging communities with 

environmental justice concerns. 

Another element of enhanced 

collaboration is in instances where a 

water resources problem identified in 

community engagement is beyond the 

Corps’ traditional mission areas. In such 

instances, the Corps can collaborate 

with Tribal Nations, Federal, State, and 

local agencies, and non-governmental 

organizations or private entities, 

through either formal or informal public 

participation processes, such as in 

scoping, to identify alternative solutions 

to the problem, including solutions that 

may be outside Corps mission areas but 

where communities may seek further 

assistance elsewhere. Following the 

ASPs may result in alternatives that are 

outside (in whole or in part) of the 

Corps mission areas or its core 

capabilities, or are better suited to 

another Federal agency or a Tribal, 

State, or local government to 

implement. 

Enhanced collaboration also helps to 

ensure transparency, promote Tribal 

and public participation, and assist in 


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developing community-driven solutions 

to water resources problems. The Corps 

would ensure that the collaboration 

includes opportunities for engaged 

participants to assess the effectiveness 

of the collaboration, identify areas of 

concern that could be redressed moving 

forward, note areas of success to 

continue to build on for the effort at 

hand, and discuss lessons learned to 

inform future efforts. 

Multiple commenters expressed 

strong support for robust collaboration 

and enhanced transparency in the 

planning process, with many offering 

suggestions for implementation. One 

comment suggested incorporating more 

specific and explicit engagement 

requirements throughout the regulation, 

including that the Corps should bring to 

the table all relevant State agencies at 

key points in the planning process. 

Another comment recommended that 

the rule direct planners to establish a 

collaboration and public engagement 

plan prior to initiation of the formal 

scoping phase and to modify the plan as 

needed to improve collaboration 

throughout the planning process. Other 

comments suggested the Corps identify 

and perform outreach to a wide variety 

of organizations and informal groups, 

and that the Corps should be required 

to hold meetings with stakeholders at 

various stages of the planning process or 

invest in dedicated staff members for 

community engagement. Comments 

requested more details on, and made 

recommendations for, achieving robust 

collaboration throughout the planning 

process and developing a formal 

approach for community engagement in 

decision-making. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. The Army appreciates the 

supportive comments on this section. 

The Corps will review existing guidance 

and provide updated guidance, where 

warranted, following completion of the 

rule. This may include additional 

details on public engagement tools, 

techniques, and the use of information 

from local sources. 

Section 234.6(e) Investigations and 

data collection. This section discusses 

investigations and data collection, 

which should be ongoing and integrated 

early in planning process. However, 

additional investigations should be 

performed as necessary. The section 

outlines areas for the study team to 

consider and relevant data to collect in 

investigations. It recommends that the 

Corps leverage existing information and 

conduct new investigations and data 

collection, where appropriate, when 

existing information is not present. 

Federally recognized Tribes indicated 

support for the inclusion of 

environmental considerations as 

discussed in the rule and noted that 

cultural impacts must also be 

considered. Additionally, one Tribal 

Nation commented that the rule should 

identify impacts on historic properties 

and traditional cultural properties, 

requesting that the planning process 

described in § 234.6 identify the need to 

comply with the National Historic 

Preservation Act and Native American 

Graves Protection and Repatriation Act 

in water resources planning and the 

operation of existing projects. 

Another comment urged that local 

and regional technical and scientific 

data be included in the study when that 

data is available and more specific than 

Federal data. 

Response: No changes were made to 

the final rule. The Army concurs that 

impacts on cultural resources and 

practices will be identified in the 

planning process for water resources 

development investment decisions. The 

Corps must comply with existing 

Federal laws and regulations, such as 

the National Historic Preservation Act 

and Native American Graves Protection 

and Repatriation Act, as well as treaties 

with Tribal Nations. 

Section 234.6(f) Identify purpose, 

problems, needs, and opportunities. 

This section sets out the requirements 

for framing the investigation of Federal 

water resources investments. The 

section also sets expectations for early 

collaboration with Tribal Nations and 

stakeholders (also see § 234.6(d)). The 

Corps would begin with a clear 

statement of the water resources 

challenges, including the problems and 

opportunities to be addressed. The 

causes of the problems should be 

identified, as well as any planning 

objectives, constraints, and the 

relationship of the problems to the 

missions, statutory authorities, and 

other requirements of the Corps. A 

watershed-based or systems approach 

should generally be applied when 

defining the scope of a water resources 

challenge. 

The scope of any study should be 

broad enough to cover the full range of 

reasonable alternatives while avoiding 

an unwieldy number of alternatives. 

The various perspectives from those 

participating in the process can ensure 

a more robust and holistic view of the 

current conditions and potential 

solutions to the key water resources 

challenges. 

The scoping process is an iterative 

process. The scope would include 

actions to obtain stakeholder, partner, 

and public input; however, that input 

may not be available early in the study 

process. 

Clearly defined problems, 

opportunities, and constraints are key to 

enable the Corps to identify a potential 

Federal investment for consideration. In 

general, this step corresponds to the 

identification of the project’s purpose 

and need under NEPA; however, the 

scoping process for a Corps study may 

be different than what is required under 

NEPA scoping. To most fully integrate 

the PR&G and NEPA processes at the 

earliest stages, the Corps should 

describe and request public input on the 

study purpose, problems, needs and 

opportunities in the Notice of Intent to 

prepare an Environmental Impact 

Statement. 

The Corps would seek to align the 

study scoping for a project and NEPA 

scoping to the extent practicable. As 

implementation of NEPA and the PR&G 

should be fully integrated, the 

identification of problems, needs, and 

opportunities apply to both applications 

and can be accomplished in study 

scoping. Typically, more background 

information is available when NEPA 

scoping is conducted. Corps study 

teams may not have all the information 

that is identified in this section of the 

rule during the initial development of 

the project management plan. For 

example, finalizing the planning 

objectives and constraints to be used in 

the analysis of the Federal investment 

cannot be developed until other actions 

have been conducted, such as 

inventorying and forecasting, that are 

identified in the study scope. 

The Army solicited comment on how 

to address specific limitations on the 

scoping process due to factors such as 

the scope of the study authority, costsharing requirements, non-Federal 

interest support, and Corps mission 

areas and core capabilities. The Army 

also solicited comment on whether 

there may be terms and conditions 

under which additional consideration 

may proceed that would enable the 

Corps to consider alternatives beyond 

those that the non-Federal interest 

supports. 

Several comments were received on 

this topic. One commenter suggested 

that study goals and objectives should 

align with the Federal Objective. 

Another commenter asked for this 

section of the rule to spell out 

specifically how the Guiding Principles 

would guide and constrain the planning 

process. One comment letter suggested 

that the Corps explain how individual 

study objectives comply with the 

Federal Objective established in WRDA 

2007. Another stated that objectives 

should be broadly framed to avoid the 


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6See https://www.publications.usace.army.mil/ 

Portals/76/ER%201105-2-103_7Nov2023.pdf. Last 

accessed May 21, 2024. 

pre-selection of recommended 

alternatives and to avoid locking in 

structural approaches. Another letter 

encouraged early collaboration to reach 

agreement on problems to be addressed 

in a study. One Tribal letter expressed 

the need to establish study problems, 

needs, and objectives following 

consultation with Tribal Nations to 

better understand Tribal treaty rights. 

Another comment suggested the rule 

more clearly describe how social and 

environmental justice will be 

considered in the selection of the 

project study area. 

Response: A typographic correction 

was made to the numbering of this 

subsection. Additional edits were made 

to this section of the Rule for clarity. 

Planning objectives will be developed 

with input from stakeholders, including 

consultation with Tribes, and framed in 

such a manner that they do not 

prescribe a particular solution. The 

Guiding Principles are neither 

procedural mandates nor hard 

constraints; they are overarching policy 

polestars. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. Future 

planning guidance may provide 

additional details regarding the 

development of planning objectives, 

problems, needs, and opportunities. 

Section 234.6(g) Inventory existing 

resources and forecast future conditions. 

To determine baselines, the Corps will 

identify the existing conditions and the 

baseline levels and, to the extent 

practicable, identify current trends and 

variability in key environmental and 

economic indicators and conditions 

such as climate, population, 

urbanization, and land use. The current 

existing conditions provide the baseline 

for forecasting both the future ‘‘withproject conditions’’ and the future 

‘‘without-project conditions.’’ The 

inventory and forecast provide 

information for understanding existing 

conditions and for establishing a 

baseline for forecasting ‘‘with-project 

conditions’’ and ‘‘without-project 

conditions.’’ The existing conditions 

and forecast provide a basis for 

comparing the effects of alternative 

water resources investments. These 

forecasts help define the problems, 

needs and opportunities that the study 

will address in the subsequent steps. 

The existing and forecasted future 

conditions will include descriptions of 

the economic, environmental, and social 

settings within the study area. The 

Corps will consider future climate 

change and economic development and 

land use change scenarios. A watershed 

approach should also be used in 

describing current and future 

conditions. 

The Corps will use peer-reviewed 

(where possible and appropriate) and 

reasonable projections. In addition, 

Indigenous Knowledge and local 

knowledge should be included in the 

descriptions, following appropriate 

procedures for free, prior, and informed 

consent for use in the descriptions, 

consistent with memoranda and 

Executive Orders on the recognition and 

inclusion of Indigenous Knowledge. The 

conditions would be described as 

appropriate and applicable to the 

specific investment, with consideration 

for the Guiding Principles of the P&R. 

The level of detail provided in the 

inventories should be commensurate 

with the rest of the analysis and level of 

scope and scale of the proposed Federal 

investment. 

The forecast of future conditions is 

comparable to the NEPA identification 

of future impacts associated with the 

proposed alternatives. Such 

comparisons will also be conducted 

with the No Action alternative. Any key 

assumptions made for forecasting future 

conditions will be disclosed. 

The terms ‘‘without-project 

condition’’ and ‘‘with-project 

condition’’ refer to the conditions that 

the Corps estimates are most likely to 

occur in the future over the period of 

the analysis. Since the future is 

inherently uncertain, the Corps study 

should identify and describe the key 

known drivers of the uncertainties. The 

inventory of existing resources and 

forecast of future conditions should also 

include assumptions for scenarios and 

for extreme weather events to evaluate 

sensitivity of alternatives to a range of 

conditions, such as drought or 

hurricanes. The Corps will use the 

scenario analysis and discussions on 

extreme weather events to inform how 

alternatives may perform under future 

conditions with respect to climate 

resilience. Scenario analyses may help 

to evaluate other sources of uncertainty 

beyond those associated with extreme 

weather or climate conditions. 

Reasonably foreseeable actions by 

public and private entities should be 

included to understand how key 

resources and services may change in 

the future, and used to better 

understand the most likely future 

condition in the absence of the 

proposed Federal investment. As with 

any projections of future conditions, 

there is an inherent degree of 

uncertainty. Characterization of 

uncertainty should be quantitative, 

when feasible, and qualitative when not, 

and should provide a commensurate 

level of detail to the analysis. Residual 

risk that is not proposed to be, or cannot 

be, addressed or mitigated should be 

disclosed to aid in the decision-making 

process. Where the effects of climate 

variability and climate change are 

relevant to the investment decision, the 

study should fully describe the key 

sources of uncertainty and the range of 

its possible effects over time. 

The proposed future ‘‘without-project 

condition’’ is what is expected to occur, 

over the period of analysis, in the 

absence of a proposed further 

investment by the Corps in a project, 

action, or program. The Corps typically 

uses a 50-year timeframe for the period 

of analysis (see Engineer Regulation 

1105–2–103 6 paragraph 2–4b(4)). 

Future land use changes would be 

incorporated. The future ‘‘withoutproject condition’’ is the baseline for 

comparison of alternatives. The 

proposed future ‘‘with-project 

condition’’ is what is expected to occur 

in the future, over the period of 

analysis, with a specific Corps proposed 

project or program in place. Climate 

change would need to be considered in 

both the future ‘‘without-project 

condition’’ and the future ‘‘with-project 

condition.’’ Projections of future 

conditions would account for expected 

environmental, social, and economic 

changes, including those that result 

from climate variability and climate 

change, particularly for projects with 

relatively long service or operational 

lives, as these projects may be subject to 

additional climate variability and 

change. 

A summary of the process used to 

identify the existing and future 

conditions for the administrative record 

ensures that appropriate considerations 

were incorporated and provides 

transparency in the process. The 

summary includes discussion of Tribal, 

partner, stakeholder, and public inputs. 

Identification of existing resources 

seeks to quantify relevant resource 

conditions in the study area as they 

currently exist. The forecasting of future 

conditions would do the same over the 

period of analysis. The period of 

analysis does not reflect the expected 

service or operational life of the 

investment. The Army solicited 

comment on what the standard period 

of analysis should be when the Corps 

implements the PR&G. 

The Corps received several comments 

indicating that the period of analysis 

should not be limited to 50 years. Two 

commenters indicated that the period of 

evaluation should be extended to 100 


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years. One commenter indicated that the 

design analysis of structures should 

reflect their actual use life rather than 

being limited to 50 years, and instead 

use an ‘‘adaptive adaptation’’ approach 

rather than planning for a time horizon 

and then rebuilding when the 

infrastructure is obsolete. Another 

commenter recommended that the final 

rule include new text clarifying the 

period of analysis regarding project 

lifespan and the cumulative effects of 

Federal projects. In particular, they 

noted that a shorter period of analysis 

may not account for sea level rise 

impacts. Another commenter stated that 

certain Corps projects have conflated 

existing conditions with the future 

‘‘without-project conditions,’’ and 

requested that the rule specify 

parameters for the future ‘‘withoutproject conditions.’’ One comment was 

received suggesting that when 

forecasting future conditions, the Corps 

should also include scenarios for 

extreme weather events to determine 

sensitivity to a range of conditions, such 

as drought or hurricanes. The Corps also 

received a comment that the analysis 

consider future conditions that are 

plausible and result in a high risk of 

failure. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. The Army concurs that a period 

of evaluation longer than 50 years may 

be appropriate in some instances. The 

Corps may issue additional guidance on 

how the period of analysis will be 

determined and used in studies. As 

described above, in standard Corps 

analyses, future ‘‘without-project 

conditions’’ include what is expected to 

occur, over the period of analysis, in the 

absence of a proposed further 

investment by the Corps in a project, 

action, or program. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule. 

Section 234.6(h) Formulate 

alternatives. The paragraph establishes 

the framework for developing a full 

range of alternatives that will address 

the water resources problem and sets 

the evaluation criteria of acceptability, 

efficiency, effectiveness, and 

completeness. Investigations, data 

collection, and analysis should be 

ongoing and should leverage and 

incorporate information from Tribal, 

State, local, non-governmental, 

scientific, and economic literature, and 

other relevant sources. 

A range of potential plans must be 

investigated with a subset retained for 

further analysis, including alternatives 

with only nonstructural elements and 

an environmentally preferred 

alternative. Nonstructural measures and 

nature-based solutions are important 

considerations of the PR&G and should 

be integrated into alternatives for 

Federal water resources investments 

wherever appropriate. As with 

structural solutions, considerations 

should be made for technical feasibility, 

land use, cost, past performance, and 

longevity. In addition, the rule requires 

the Corps to include an environmentally 

preferred alternative in the final array of 

alternatives, which is consistent with 

the current Corps’ planning process as 

well as consistent with NEPA. 

The Corps will formulate the 

alternative plans in a systematic manner 

that ensures that it has identified and 

considered the full range of reasonable 

alternatives. The studies will evaluate 

alternatives based on the most likely 

future conditions. The alternatives 

should seek to address the water 

resources challenge, problem, or need 

identified in § 234.6(f), achieve the 

planning objectives of the study and the 

Federal Objective, and follow the 

Guiding Principles. Alternatives should 

reflect potential solutions that are 

feasible. The range of alternatives 

provides a framework for comparing the 

relative effectiveness and efficiency of 

the alternatives in achieving economic, 

environmental, and social goals. 

In addition, as noted in § 234.6(e), the 

same period of analysis should be used 

in alternatives analysis. The period of 

analysis selected can bias selection of 

one option or another. A shorter 

analysis period would benefit 

alternatives with fewer upfront costs 

and more upfront benefits, as compared 

to an alternative with more upfront 

costs but more long-term benefits and 

lower cost over time. Thus, the period 

of analysis selected must be long 

enough to account for costs and benefits 

including the principal significant longterm effects. 

When an alternative is beyond the 

Corps missions, such an alternative may 

be carried forward for further analysis 

where it provides solutions to the 

identified problem, meets the identified 

economic, environmental and social 

goals, and appropriate funding is 

available or may be made available 

(including from other agencies and 

partners without Corps action). In such 

case, the alternative should specifically 

identify the relevant parties with 

requisite responsibility for any action 

beyond Corps missions, their authority 

for that action, the interrelation between 

that action and the recommended Corps 

project, action, or program and 

appropriate sequencing of 

implementation. Any recommendations 

for authorization should clearly and 

specifically delineate the Federal water 

resources project being recommended 

for Corps authorization, and any 

condition precedent for construction. 

The rule provides that for Corps 

investments, the Corps would be the 

designated lead for completing the 

PR&G analysis. 

The Army solicited comment on 

whether and when the Corps should 

consider alternatives beyond those that 

the non-Federal interest supports, such 

as when an alternative may be beyond 

Corps missions. 

Several comment letters were 

received that supported no limitations 

on alternatives when identifying 

effective water resources solutions. 

Another comment letter was received 

which suggested that in no case should 

a sponsor or non-Federal interest be 

asked to support water resources 

investments that include increments 

that do not meet their objectives or are 

beyond their capabilities. 

Additional comment letters were 

received regarding the treatment of 

alternative solutions, incremental 

analysis of separable elements and any 

additional costs to meet investment 

objectives. Specifically, comments were 

received indicating that the Corps 

should establish clear principles on how 

separable elements and investment 

increments will be considered within 

the budget formulation process. One 

recommended identification and 

evaluation of all investment increments 

and separable elements to achieve 

efficient and effective investment 

outcomes, to illuminate the value and 

impact of each project component. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. The Corps will review existing 

guidance and provide updated guidance 

needs, where warranted, following 

completion of the final rule. 

Specifically, the Corps will review 

guidance regarding the development of 

alternatives and treatment of separable 

elements. 

Section 234.6(h)(1). In this paragraph, 

the screening of alternatives in a 

systematic manner is discussed. An 

initial set of alternatives would be 

refined for reasons such as having 

excessive cost or unavoidable impacts, 

not sufficiently addressing the problem 

or opportunity, or other factors. The 

refinement would also consider the 

Federal Objective and the Guiding 

Principles. Alternatives that are 

eliminated should still be briefly 

discussed in publicly available 

documents, as well as the reasons for 

their elimination. The remaining 

alternatives are considered the 

reasonable range of alternatives to be 


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carried through the analysis and NEPA 

evaluation. They should be distinct 

enough to warrant individual 

consideration and entail different 

potential solutions to the water 

resources challenges. The alternatives 

should describe not just the economic, 

environmental, and social conditions 

and benefits, but also impacts. 

Alternatives should also describe any 

potential institutional barriers that the 

Corps or others would have to address 

or overcome to implement the 

alternative, including Federal, State, or 

local statutory or regulatory 

requirements, and current policies. 

Transparency and full consideration of 

economic, environmental, and social 

effects, both quantifiable and nonquantifiable, must be provided for each 

alternative. Descriptions of the social, 

environmental, and economic impacts 

of not investing, or underinvesting, in 

any Tribal or disadvantaged community, 

under the future ‘‘without-project 

condition’’ and the No Action 

alternative, should be included. 

Programmatic-level procedures would 

generally be expected to have fewer 

alternatives than project-level 

procedures, as they are generally of a 

lower level of detail with fewer options 

for developing them. In all cases, the 

alternatives analyzed under the PR&G 

will be included in the NEPA 

document. As discussed previously in 

§ 234.6(f) of the preamble, the Corps 

will work to integrate the PR&G analysis 

with NEPA to the extent practicable. 

Response: The Rule was modified to 

clarify that the Corps will identify and 

consider a full range of reasonable 

alternatives. 

Section 234.7 Evaluation framework. 

Section 234.7(a) The ASPs provide a 

common framework and general 

requirements for the Corps to use in 

evaluating full consideration of social, 

environmental, and economic benefits 

and costs of any separable elements and 

potential alternatives for Federal 

investment. This will include their 

performance with respect to the Guiding 

Principles, and their contributions to 

the Federal Objective. 

Response: The Army made changes to 

the Rule for clarity. The Rule was 

updated to stress the need to fully 

consider all attributes when evaluating 

separable elements and alternatives. The 

Army added the word ‘‘clearly’’ for 

emphasis. 

Section 234.7(b) Economic, 

environmental, and social effects. The 

Corps will identify and evaluate the 

economic, environmental, and social 

effects across alternatives. Such effects 

comprise the full range of relevant 

public benefits potentially provided by 

Corps projects. 

Many commenters supported 

evaluation of the economic, 

environmental, and social effects in the 

Corps planning process. Some 

commenters wanted to see stronger 

language emphasizing that the three 

categories of effects would be balanced 

and nonhierarchical between each 

other, and that the three categories 

would be equally considered. 

Multiple commenters wished to see 

methodologies detailed in this 

paragraph. For example, one commenter 

requested more specifics on how the 

Corps would account for the social, 

environmental, and economic impacts 

of chronic underinvesting in 

communities, especially disadvantaged 

communities, during the planning 

process, while another wanted to know 

how the Corps would incorporate 

evaluation of ecosystem services, and 

yet another wished to see inclusion of 

cost-effectiveness and reasonable cost as 

key approaches for evaluating 

environmental effects. One organization 

recommended adding language 

clarifying that the Corps must account 

for the value of ecosystem services lost 

as a project cost, and account for the 

value of ecosystem services gained as a 

project benefit. 

One commenter discussed discount 

rates and OMB Circulars A–4 and A–94 

in the context of this section. Another 

commenter discussed the similarities 

between this Section and OMB Circulars 

A–4 and A–94 and suggested that this 

section simply reference the OMB 

Circulars. See preamble § 234.9(c) for 

the Army’s response to comments on 

this topic. 

Another commenter proposed adding 

a new paragraph to § 234.7, identifying 

biodiversity as a priority of alternative 

plans. 

The Army solicited comment on 

specific tools and methodologies that 

commenters wished to recommend for 

quantifying or monetizing economic, 

environmental, and social effects. 

Multiple such recommendations were 

received. Additional recommendations 

were received regarding qualitative and 

non-monetary evaluation approaches. 

Some commenters wished to see an 

explicit constraint on prioritizing any 

type of data (quantitative vs. qualitative, 

monetized vs. non-monetized) over any 

other. One commenter mentioned that 

monetization should follow sound 

economic principles and practices. 

Response: The Army edited the rule 

for clarity: ‘‘Relevant monetary, 

quantitative, and descriptive 

information will be fully assessed and 

considered in the analysis.’’ It is 

important to include relevant monetary, 

quantitative, and qualitative descriptive 

information in this section. The Army 

acknowledges the importance of 

biodiversity as an index of ecosystem 

health. The Corps already evaluates 

biodiversity in its studies; future 

guidance will describe any changes to 

biodiversity evaluation in the planning 

process, as appropriate. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule. 

This may include how the Corps will 

identify, collect, assess, and consider 

relevant data of all types. 

Section 234.7(c) Best available 

actionable science and commensurate 

level of detail. This section of the rule 

specifies that to support the evaluation 

of alternatives, the analysis should use 

the best available actionable science, 

Indigenous Knowledge, data, 

techniques, procedures, models, and 

tools across a wide variety of pertinent 

subjects. 

Regarding data used for planning 

studies, one comment letter found the 

terms ‘‘actionable science’’ and ‘‘best 

available science’’ to be confusing. One 

commenter recommended including in 

the rule a commitment to use a specific 

sea level rise scenario adopted by an 

interagency task force. Another 

comment letter conveyed that the Corps 

should ensure that data utilized in 

planning studies should meet multiple 

objectives by producing it in a 

transferable, accessible, multi-use 

format at a high enough resolution for 

use by others beyond the planning 

context. An additional letter was 

received commenting on the capabilities 

that non-Federal interests contribute to 

water resources investigations, and how 

this should allow for the use of local or 

region-specific analysis. One commenter 

suggested inclusion of ‘‘other placebased knowledge’’ in addition to 

Indigenous Knowledge. One Tribal 

Nation letter supported the inclusion of 

environmental considerations as 

discussed in 89 FR 10266 and said that 

cultural impacts must also be 

considered in evaluations. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.7(d) Risk and uncertainty. 

To improve decision-making, the ASPs 

require that risks and uncertainty be 

identified, described, considered, and 

quantified if feasible. This section 

explicitly calls for consideration of the 

costs and benefits of reducing risks and 

uncertainties. 


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7See https://planning.erdc.dren.mil/toolbox/ 

library/Guidance/PlanningManualPartII_

IWR2017R03.pdf. Last accessed May 21, 2024. 

For project planning purposes, the 

‘‘risk’’ of an adverse outcome reflects 

two factors—the probability that an 

adverse outcome will occur; and its 

consequences if it were to occur. The 

term ‘‘uncertainty’’ is used to express 

doubt or lack of knowledge about a 

positive (beneficial) or negative 

(harmful) outcome. Risk and uncertainty 

may be expressed either qualitatively or 

quantitatively. Some elements of 

uncertainty are described in § 234.6(g) 

regarding future conditions. The risks 

and uncertainties need to be disclosed 

for transparency and in plain language 

and made relevant to the comparison of 

alternatives. When available, such risks 

and uncertainties should be 

contextualized in a format readily 

understandable by the public. In some 

instances, reducing risks and 

uncertainties may result in increased 

costs, and the advantages of doing so in 

informing decision-making should be 

weighed against those additional costs. 

The Corps practices risk-informed 

decision-making (see Planning Manual 

Part II: Risk-Informed Planning).7

The Army solicited comment on riskinformed frameworks to supplement or 

improve the current risk-informed 

planning process. 

Multiple commenters stated that all 

risk-informed planning should conform 

to OMB Circular A–4 and that the Corps 

should make risk-informed decisionmaking apply to levee safety consistent 

with Circular A–4, and refrain from 

unconventional notions, such as 

tolerable risk, which are no more than 

expressions of the risk preferences of 

the agency or analysts within the 

agency. Another commenter indicated 

that the Corps needs to clearly and 

specifically articulate, in this rule and 

elsewhere, what the term ‘‘risk-informed 

decision-making’’ is, how it is to be 

applied, and under what statutory 

authorities. 

Response: OMB Circular A–4 covers 

regulatory actions, which are beyond 

the scope of the ASPs. The Corps may 

follow OMB Circular A–4, where 

applicable. The Corps consolidated the 

discussion of risk and uncertainty in 

one place in the final rule. Therefore, 

the final rule no longer includes 

§ 234.10(d); and some of the language 

proposed in that subsection has moved 

to § 234.7(d). The Corps also has revised 

§ 234.7(d) to include language on 

providing an estimate in the study of the 

extent to which the uncertainty may 

change over time. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. That review 

will encompass risk-informed decisionmaking as well as levee safety guidance 

and practice. 

Section 234.7(e) Adaptive 

management. Adaptive management is 

defined under this rule in § 234.2(b). 

Adaptive management is highlighted as 

a tool to help reduce or manage 

uncertainties. The rule calls for adaptive 

management measures to be clearly 

identified and evaluated as part of the 

alternatives. Adaptive management 

should be considered throughout the 

process and should be employed as 

soon as triggers are identified which 

necessitate such measures. Postconstruction adaptive management 

measures to address unforeseen 

conditions or impacts of the project 

should also be included in Corps 

recommendations for project 

authorization. 

No comments were received on this 

section. 

Response: No changes were made to 

the final rule. 

Section 234.7(f) and (g) Climate 

change and water availability, water 

use, and resilience. These paragraphs 

require consideration of climate change, 

water availability, water use, and 

drought and flood resilience in all 

aspects of the planning process. 

The Army received multiple 

comments supporting this requirement. 

Many commenters stressed the 

importance of both climate change and 

drought resilience and water supply to 

the health of ecosystems and 

communities. Some comments 

recommended specific methods, 

approaches, or data sources to meet the 

requirements described in the rule. One 

comment recommended that a 

framework be developed that establishes 

processes and procedures for using 

inland climate change in the evaluation, 

design, authorization, and construction 

of flood risk reduction facilities. One 

commenter stated that it would be 

difficult to reassess climate change if it 

was not evaluated during the planning 

stage. Another commenter stressed the 

importance of considering 

nonstationarity for drought resilience 

and water supply projects as well as 

flood risk management studies. One 

organization sought the inclusion of the 

consideration of multiple flood risks 

when conducting investigations. 

One commenter asserted that there 

may be a contradiction between 

maximizing economic outputs, and 

protecting and conserving the 

environment. The commenter did not 

make specific recommendations to 

change the rule. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.7(h) Nonstructural and 

nature-based alternatives. This 

paragraph further describes 

requirements to develop alternatives 

that use nonstructural and nature-based 

solutions to address the water resources 

problem. Nonstructural approaches are 

defined in § 234.2(l) of the rule. The 

paragraph requires the consideration of 

natural systems, ecosystem processes, 

and nature-based solutions. 

Nonstructural and nature-based 

alternatives are to be developed with the 

same rigor as other alternatives. A full 

nonstructural alternative and a full 

nature-based solutions alternative will 

also be included in the final array of 

alternatives, to the extent that such a 

solution exists. In some cases, these may 

be one and the same. Nature-based 

solutions should also be considered as 

components of other alternatives in the 

final array, providing integrated or 

‘‘hybrid’’ alternatives with these other 

measures. 

The Army received a comment on this 

section questioning the inclusion of 

caveat language for these types of 

alternatives but not including similar 

caveat language for structural 

alternatives. One comment letter was 

received which expressed the opinion 

that natural and nature-based solutions 

may not always be compatible as a 

remedy and recommended that 

flexibility be allowed for each situation. 

The Army received multiple comments 

suggesting that nonstructural and 

nature-based alternatives be prioritized, 

by default, over other alternatives in the 

formulation and consideration of 

alternative plans. The Army received 

comment that nature-based solutions 

may reduce overall costs and offer more 

benefits than static-built infrastructure. 

Response: The rule text was changed 

to remove the caveat language. The 

Army disagrees with the prioritization 

of various alternatives because they 

would be inconsistent with a requisite 

standard of rigor in the evaluation and 

comparison of potential solutions to 

water resources problems. In addition, 

the PR&G note that nonstructural 

approaches must be given full and equal 

consideration in the decision-making 

process. Establishing a higher priority 

for certain alternatives would contradict 

the concept of equal consideration. The 

Corps will review existing guidance and 

provide updated guidance, where 

warranted, following completion of the 

final rule. 


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8See https://www.doi.gov/sites/doi.gov/files/ 

interagency-mou-protecting-tribal-treaty-andreserved-rights-11-15-2021.pdf.. Last accessed May 

21, 2024. 

9See https://www.bia.gov/sites/default/files/dup/ 

inline-files/best_practices_guide.pdf. Last accessed 

May 21, 2024. 

Section 234.7(i) Tribal treaty rights. 

This paragraph provides that each of the 

alternatives considered for a water 

resources investment must protect 

Tribal treaty rights. Each treaty is 

unique and must be analyzed to ensure 

any possible impacts, as well as 

benefits, to treaty rights are fully 

understood and accounted for in the 

evaluation of alternatives. The Corps 

will ensure consistency with the 

‘‘Memorandum of Understanding 

Regarding Interagency Coordination and 

Collaboration for the Protection of 

Tribal Treaty Rights and Reserved 

Rights’’ 8 during the evaluation 

framework process. The Corps commits 

to enhancing interagency coordination 

and collaboration to protect Tribal treaty 

and reserved rights and to fully 

implement Federal Government treaty 

obligations. If Tribal treaty rights 

preclude selection of an alternative, the 

Corps will disclose such details. The 

Corps also commits to following the 

‘‘Best-Practices for Identifying and 

Protecting Tribal Treaty Rights, 

Reserved Rights, and Other Similar 

Rights in Federal Regulatory Actions 

and Federal Decision-Making.’’ 9

Several commenters supported the 

inclusion of evaluating Tribal treaty and 

reserved rights during scoping and 

throughout the alternatives 

development and evaluation process in 

§ 234.7(i) of the rule. One public 

comment suggests consideration of 

Tribal treaty rights and other 

environmental justice impacts to ensure 

that Corps investments appropriately 

address the needs of historically 

underrepresented stakeholders and 

potential uncertainties that may 

threaten the viability of a project 

alternative. A Tribal Organization and a 

Federally recognized Tribe commented 

that only Congress may abrogate or 

interfere with Tribal treaty rights, and 

that the Corps may not recommend a 

water resources development project 

that violates Tribal treaty rights. 

Further, the Federally recognized Tribe 

recommends that evaluation of Tribal 

treaty rights starts as a threshold 

inquiry, not to be deferred to the 

evaluation phase, as any alternative that 

violates Tribal treaty rights is not a 

viable alternative and should be 

eliminated as soon as it is identified. 

One comment from a Tribal Nation 

acknowledges that in some cases the full 

extent of impacts to Tribal treaty rights 

and water rights may not be known 

until detailed environmental analysis is 

completed and recommends that 

impacts to Tribal treaty rights continue 

to be evaluated at each stage of the 

project planning process. The comment 

continues, stating if the Corps 

determines in consultation with a Tribal 

Nation that an alternative does not 

interfere with Tribal treaty or water 

rights, the Corps must then take 

affirmative steps to protect and advance 

Tribal interests throughout the 

remainder of the planning process, as 

required by its trust responsibility to 

Tribal Nations through consultation. 

Response: Section 234.7(i) was 

updated to remove reference to ‘‘an 

otherwise viable alternative’’ when 

identifying impacts to Tribal treaty and 

water rights. The Army agrees that 

unless Congress provides explicit 

authority, the agency does not have 

authority to recommend projects that 

interfere with Tribal treaty rights. The 

Army also concurs that this analysis 

must be done at the earliest phases and 

iteratively through the plan formulation 

and evaluation process. Additional edits 

in § 234.6(d) of the rule added emphasis 

on the requirement to conduct Nationto-Nation consultation in addition to the 

robust, early collaboration with Tribal 

Nations, which will be paramount in the 

development of implementing guidance 

for the PR&G. 

Another comment states while Tribal 

treaty rights should be considered in the 

analysis, it would be inappropriate for 

the Corps to determine any treaty or 

reserved rights that may be in dispute, 

that Federal agencies are not the 

appropriate arbitrators of these rights, 

and this determination is beyond the 

Corps’ expertise and authority. 

Response: Treaties are between the 

Federal Government and Federally 

recognized Tribes. The Corps is required 

to consult with Tribal Nations on 

potential impacts on Tribal treaty rights 

through Nation-to-Nation consultation, 

as treaties are ‘‘not a grant of rights to 

the Indians, but a grant of rights from 

them, a reservation of those not 

granted’’ (United States v. Winans, 198 

U.S. 371, 381 (1905)). While the Corps 

does not get involved in water rights or 

treaty rights determinations unless it is 

a part of developing a water resources 

project, the Corps does have relevant 

expertise developed through 

implementation of its statutory 

authorities and in fulfilling the Federal 

trust responsibility. 

One comment recommends that this 

evaluation of Tribal treaty rights follow 

the Department of the Army permitting 

context to balance the broad range of 

public and private interest factors and 

weigh the cost and benefits of a 

proposed activity (33 CFR 320.4). Lastly, 

one comment recommended revisions to 

the existing Missouri River operations to 

comply with the treaty provisions in 

§ 234.7(i). 

Response: When planning a future 

water resources investment, the Corps is 

engaged at each stage of the process— 

from the initial scoping, through project 

formulation and evaluation, and 

ultimately to the recommendation of a 

water resources investment. In 

comparison to the Department of the 

Army permitting context, the project 

planning process provides multiple 

opportunities to identify and screen out 

alternatives that may adversely impact 

Tribal treaty rights. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule. 

The Corps will review existing guidance 

and provide updated guidance, where 

warranted, following completion of the 

rule to include an evaluation of 

guidance related to the Tribal Treaty 

Rights Effects Determination process. 

Section 234.7(j) and (k) State water 

law and international obligations. These 

paragraphs provide that the alternatives 

for Federal investments must ensure 

compliance with State water laws to the 

extent they do not conflict with Federal 

laws and regulations as well as treaty 

and other international obligations. If 

any constraints within that compliance 

require an otherwise viable alternative 

to not be carried forward, then the Corps 

would disclose those details. 

A commenter suggested that a similar 

statement be added requiring 

compliance with Federal environmental 

laws. Another commented that the 

procedures should require deference to 

State and local preferences on trade-offs. 

A commenter noted that a set of statutes 

broader than ‘‘state water laws’’ may 

apply to Corps projects and 

recommended broadening the language 

to acknowledge all applicable State 

laws. Another commenter stated the 

rule must be revised to give deference 

to State water allocation decisions. 

Response: Section 234.7(j) of the rule 

was modified to broaden the 

applicability of State laws. Compliance 

with applicable Federal law is a 

required baseline. These paragraphs 

acknowledge the diversity of State laws 

and international obligations, and 

explicitly establish a requirement to 

comply with all applicable such laws. 

The Army has not included language 

in the rule to give deference to State 

water allocations. The Water Supply Act 

of 1958 (Title III of Pub. L. 85–500) 

recognizes the primary responsibilities 

of the States and local interests in 


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developing water supplies. The Army 

does not allocate water but allocates the 

storage space within its reservoirs. 

Section 234.7(l) Period of Analysis. 

This paragraph complements the 

preamble discussion of § 234.6(g) of the 

rule regarding the period of analysis and 

review of alternatives. The period of 

analysis selected will be documented 

with appropriate supporting 

information. The same timeframe would 

be used across all alternative 

evaluations. The Corps has typically 

used a 50-year timeframe for the period 

of analysis (see Engineer Regulation 

1105–2–103 paragraph 2–4b). The Corps 

recognizes the importance of 

consistency and comparability within a 

given study in evaluating the 

alternatives. Under the final rule, the 

Corps would determine the period of 

analysis for each study to reflect a time 

frame that will sufficiently capture all 

important effects of each of the 

alternatives. 

The Army solicited comment on 

whether there should be an upper limit 

established for the period of analysis. 

The Army also solicited comment on 

whether the Corps’ current timeframe is 

the appropriate period of analysis for 

implementing the Corps’ projects. 

Further, the Army solicited comment on 

whether the period of analysis should 

be longer given that some benefits could 

accrue over timescales beyond 50 years. 

To round out the period of analysis 

considerations the Army solicited 

comment on whether the period of 

analysis should vary based upon the 

mission area and the particular purpose 

and need of the proposed investment. 

The Corps received three comments 

addressing the period of analysis. Two 

commenters indicated that the period of 

evaluation should be extended to 100 

years. Another indicated that the design 

analysis of structures should reflect 

their actual use life rather than being 

limited to 50 years, and instead use an 

‘‘adaptive adaptation’’ approach rather 

than planning for a time horizon and 

then rebuilding when the infrastructure 

is obsolete. Another commenter 

recommended that the final rule include 

new text clarifying the period of 

analysis, including regarding project 

lifespan and the cumulative effects of 

Federal projects. In particular, the 

commenter noted that a shorter period 

of analysis may not account for sea level 

rise impacts. 

Response: The Army changed the 

name of this subsection from ‘‘Timing’’ 

to ‘‘Period of Analysis’’ and made 

additional edits for clarity. As 

previously discussed within the 

Preamble for § 234.6(g), the Army 

concurs that a period of evaluation 

longer than 50 years may be appropriate 

in some instances. The Corps will 

review existing guidance and provide 

updated guidance relative to the period 

of analysis for investigations, where 

warranted, following completion of the 

final rule. 

Section 234.8 Final array of 

alternatives. This paragraph outlines the 

final array of alternatives to address the 

problem that would be identified and 

subject to analysis and consideration. 

The rule requires the Corps to include 

six alternatives in the final array: a No 

Action or ‘‘without-project condition’’ 

alternative, a fully nonstructural 

alternative, a fully nature-based 

alternative, an environmentally 

preferred alternative, an alternative that 

seeks to maximize net public benefits, 

and a locally-preferred alternative. A 

single alternative might satisfy more 

than one category, such as a naturebased alternative that is also the net 

public benefits alternative. There may 

be cases where there are two or more 

alternatives in a category that will be 

considered as part of the final array of 

alternatives. All alternatives in the final 

array must be developed using a 

comparable level of rigor and detail. 

The Army received public comments 

about locally preferred alternatives. One 

commenter noted that impacted 

communities should have meaningful 

and informed input regarding the 

identification of the locally preferred 

alternative. Another emphasized the 

need for analysis to help justify a locally 

preferred plan as a Federal plan, while 

another mentioned a need to consider 

the locally preferred plan in a revised 

definition of non-Federal interest. 

Another commenter requested clarity on 

cost allocation among project purposes 

and the corresponding cost sharing. 

A number of letters were received 

regarding the treatment of alternatives. 

One comment identified conflicting 

statements regarding the requirements 

to include nonstructural approaches. 

Another commenter recommended that 

if any of the required alternatives is not 

included in the final array, the analysis 

will need to fully justify that decision. 

One comment letter suggested that the 

Corps consider alternatives outside of 

its authorities if they could maximize 

net public benefits. Another commenter 

suggested alternatives be described 

based on method rather than have 

alternatives that are based on achieving 

an objective. Another comment 

requested that any caveats associated 

with consideration of alternative plans 

be removed to force creative thinking 

about nonstructural and natural and 

nature-based solutions. One comment 

letter suggested consideration of natural 

and nature-based solutions over all 

other measures; whereas another letter 

suggested priority for structural 

measures in certain applications. One 

comment letter went further, requesting 

future guidance clearly identify 

procedural and methodology 

requirements to include nonstructural 

and natural and nature-based solutions. 

A commenter suggested that the Corps 

has the discretion to modify the 

identification of the nature-based 

solution alternative based on projectspecific considerations of local 

conditions. One commenter indicated 

that a fully nature-based alternative may 

limit efforts to identify an 

implementable nature-based alternative 

and that nature-based solutions could 

include structural and non-structural 

features. One comment recommended 

that the non-Federal interest be fully 

involved in determining the final array 

of alternatives, especially to ensure that 

they can fulfill any associated 

requirements for lands, cost-share, and 

maintenance activities. Another 

commenter recommended that § 234.8 

be accompanied by standard guidance 

and case studies that exemplify the use 

of innovative and diverse tools and 

methods for comprehensive evaluation 

of economic, social, and environmental 

benefits. Another commenter indicated 

that the discussion on the final array of 

alternatives should be revised to reflect 

the fact that the final array will include 

the primary purpose of the analysis and 

the Federal Objective. 

Response: Changes were made to the 

rule to acknowledge that if one or more 

of the required alternatives is not 

included because the Corps was not able 

to identify a potential solution that is 

feasible and would be effective, the 

study must document that decision. The 

Corps will review existing guidance and 

provide updated guidance, including 

procedural requirements and 

methodology considerations for 

determining the final array of 

alternatives, where warranted, following 

completion of the final rule. The Corps 

will consider the use of case studies to 

help illustrate examples of the types of 

alternatives required to be presented in 

the final array of alternatives. 

For the locally preferred alternatives, 

all costs above the identified alternative 

that maximizes net public benefits 

would be a 100 percent non-Federal 

cost. Additional policies and procedures 

for recommending locally preferred 

alternatives will be covered in future 

implementing guidance. 

Section 234.9 Evaluate effects of 

alternatives. 

Section 234.9(a) and (b). These 

sections establish the general framework 


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for the analysis of the effects of the final 

array of alternatives. The analysis must 

evaluate how each alternative’s benefits 

compare to its costs, how the 

alternatives perform with respect to the 

PR&G’s Guiding Principles, how they 

perform against the objectives of the 

study, and how they perform against the 

prescribed formulation criteria of 

completeness, effectiveness, efficiency, 

and acceptability. In doing so, the final 

array of alternatives will be assessed in 

a manner to best inform decisionmaking. The objectives of the study 

should be related to, or stem from, the 

identified water resources problem or 

opportunity, and must be clear and 

focused so that they can be used to 

evaluate alternatives. 

The Army received several comments 

that recommended including in the rule 

language from the Interagency 

Guidelines stating that there is no 

hierarchy among economic and 

environmental goals. The Army also 

received comments requesting that 

Tribal treaty rights evaluation be 

acknowledged throughout the planning 

process in consultation with Tribal 

Nations. One commenter supports 

aspects of this section and recommends 

the ASPs should include a methodology 

framework and plan selection criteria. 

Another commenter recommended that 

the Corps evaluate alternatives for 

potential impacts on the status of 

Federal jurisdiction for wetlands. 

Another comment suggested changing 

the text of § 234.9(b)(2) to evaluate each 

alternative against the study objectives 

and the Federal Objective. One 

commenter noted that the Army needs 

to clarify the benefits analysis process 

on how benefits will be compared, 

leading to a clear and transparent path 

to project selection. Another commenter 

provided suggestions for how best to 

evaluate alternatives built around 

nature-based solutions. Another 

commenter suggested that guidance be 

developed to ensure the Corps analyzes 

multiple types of inundation risk in 

flood risk management studies. 

Response: The Army modified the 

rule text to require full consideration of 

economic, environmental, or social 

benefit categories and to require the 

analysis for the final array of 

alternatives to identify any impacts to 

Tribal treaty rights that were unknown 

earlier in the planning process and 

which prevent the selection of an 

alternative. The Corps will review 

existing guidance and provide updated 

guidance relative to methodologies and 

criteria, where warranted, following 

completion of the final rule. The Corps 

considers jurisdictional status of 

wetlands during the planning process. 

Section 234.9(c) Consideration of 

benefits and costs. This paragraph 

establishes three categories to fully 

account for the costs and benefits of an 

alternative and its contributions to the 

Federal Objective: economic, 

environmental, and social. 

The PR&G does not direct the Corps 

to develop ASPs that require the 

selection of a particular alternative 

investment, but rather to evaluate a 

range of alternatives. When evaluating 

an array of alternatives, the Corps will 

keep in mind a number of key aspects, 

such as economic, environmental, and 

social impacts, which are interrelated; 

not all impacts can be monetized, and 

impacts described qualitatively should 

be given full consideration; and there 

could be more than one alternative that 

reasonably and approximately meets the 

Federal Objective and seeks to 

maximize the public benefits relative to 

costs. 

The paragraph reiterates that the costs 

and benefits should be quantified and 

monetized to the extent practicable 

using a scientifically valid and 

acceptable way. If qualitative 

applications are used, they must be of 

sufficient detail to ensure the decisionmaker can make an informed decision 

understanding both the importance and 

magnitude of potential changes. 

This paragraph is the heart of the 

PR&G and encapsulates the largest 

change in Corps decision-making and 

consideration of Federal water resources 

investment alternatives. Rather than 

primarily focusing on national 

economic development in the 

alternatives analysis, the ASPs require 

economic, environmental, and social 

benefit categories to be considered fully. 

Qualitative information can be used to 

further contextualize their social 

relevance, but double-counting should 

be avoided. 

This paragraph calls for the current 

dollar value costs, along with nonmonetized measures and descriptions of 

benefits, to be measured against the 

current dollar value benefits and nonmonetized measures and description of 

benefits of each alternative, and 

compared to the No Action alternative. 

Future predicted cost and benefit value 

(monetized) estimates will be 

discounted to present value terms for 

the analysis. The evaluation of 

alternatives is part of the NEPA 

alternatives analysis, in which the No 

Action alternative and Action 

alternatives are described, evaluated, 

and compared. 

The Army solicited comment on 

whether to eliminate the three 

categories to simply account for all costs 

and benefits without further 

categorization which may make it easier 

to avoid double-counting, although 

noting that certain costs and benefits 

may not be as visible if they are not 

specifically called out in a category. 

Several commenters indicated that the 

Corps should use the three categories. 

Some commenters mentioned the need 

for additional guidance, and some 

recommended that future guidance 

discuss how non-monetary outputs are 

weighed against monetary. Multiple 

commenters suggested that the Corps 

continue to identify the national 

economic development plan but should 

modernize it to reflect environmental 

and social values. 

Response: No changes were made to 

the final rule regarding the three benefit 

categories. The Corps will review 

existing guidance and provide updated 

guidance relative to benefit and cost 

methodologies, where warranted, 

following completion of the final rule. 

The Army solicited comment on the 

selection of discount rates and 

consideration of whether declining 

discount rates should follow the 

guidance in OMB Circulars A–4 and A– 

94. 

The Army received multiple 

responses on this topic. Two 

commenters expressed concern about 

the use of higher discount rates and 

their impact on analyses. One of these 

commenters suggested that the Corps 

expand its consideration of relevant 

factors to include additional social and 

environmental factors, and that net 

present value estimates be reported at a 

zero-percent discount rate. They felt this 

can be invaluable when benchmarking 

new assumptions, methods, and policy 

approaches. Several commenters 

indicated that, to the extent practicable 

and allowable by law, the Corps and 

OMB should follow the guidance in 

OMB Circulars A–4 and A–94 related to 

discount rates. Another commenter 

suggested that the Corps define the term 

‘‘minimum standards’’ in the final rule 

that can be supplemented with OMBand Corps-specific guidance. 

Specifically, the commenter 

recommended that the Corps should 

follow A–4 and A–94, adopt the 

declining discount rate schedule 

outlined in Circular A–4, and should 

update the long-term discount rate 

schedule every three years. Another 

commenter expressed concern with 

OMB Circulars A–4 and A–94 and their 

use of risk adjusted discount rates to 

account for risk to discount future costs 

and benefits, and indicated that 

discounting should only be done to 

account for the time value of money. 

This commenter also expressed concern 

with using declining discount rates. 


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While not specific to discount rates, a 

commenter asked for the Corps’ 

perspective on weighted benefit-to-cost 

ratios as discussed in OMB Circular A– 

94, while also providing support for 

including distributional effects in 

analyses. Support for inclusion of 

distributional effects was echoed by 

multiple respondents. Another 

commenter responded that discounting 

methodologies applied to ecosystem 

services or natural resources incorporate 

the impact of potential scarcity into the 

future cost and value of these natural 

services and resources. 

Response: No changes were made to 

the final rule regarding discount rates. 

In general, the Corps will follow the 

principles presented in Circulars A–4 

and A–94 for implementing a benefitcost analysis. For clarification, Circular 

A–94 emphasizes that the preferred way 

to address risk is through project level 

certainty equivalents, which adjust 

uncertain expected values to account for 

risk. Per Circular A–94, when direct 

determination of individuals’ certainty 

equivalent valuations is not feasible, the 

inclusion of a risk premium in the 

discount rate serves as a practical 

alternative. The discount rate used by 

the Corps is based on a requirement in 

section 80 of WRDA 1974. Where 

appropriate, the Corps will consider 

using weighted benefit-to-cost ratios as 

part of a sensitivity analysis to inform 

an investment decision. 

Distributional effects are often 

considered but may not be appropriate 

for some types of investments. For 

example, the primary benefits 

associated with an aquatic ecosystem 

restoration project are realized by the 

ecosystem that is being restored 

including the plant and animal species 

that use that habitat, rather than by any 

specific members of the public. The 

Corps does not discount non-monetized 

outputs. 

Another commenter provided several 

comments regarding how the Corps 

conducts economic analyses. In 

particular, the commenter expressed 

concern with the use of average annual 

values and the inclusion of interest 

costs of borrowing. The commenter also 

mentioned a spreadsheet tool that the 

Army uses for calculating benefit-to-cost 

ratios. 

Response: No changes were made to 

the final rule regarding how the Corps 

performs its economic analyses. The 

Corps utilizes a constant dollar analysis. 

There is no comingling of constant or 

inflated values. Costs are counted in the 

analysis in the year they are incurred. 

The average annual calculations are the 

result of the present value being 

factored with the capital recovery factor. 

The capital recovery factor is calculated 

utilizing the discount rate used in the 

present value calculations and the 

period of analysis and represents sound 

economic evaluation. Current technical 

practices utilize the best available tools 

and are subject to peer review 

requirements. The Corps does not have 

a singular spreadsheet tool that is used 

to determine benefit-to-cost ratios. 

While a particular study may use such 

a tool, the Corps uses a variety of 

approved models in aiding with 

economic analyses. 

The ASPs intentionally do not dictate 

specific evaluation tools, methods, or 

processes. These tools and methods will 

evolve over time and the Corps is 

committed to using the best available 

tools and methods appropriate for the 

analysis, now and in the future. In this 

manner, the Corps can be nimble in 

changing with the evolving science, 

knowledge, data, and methods, rather 

than promulgating a prescriptive 

method in regulatory text that may 

quickly become outdated. 

The Army solicited comment on tools 

and methodologies. While the ASPs do 

not prescribe the techniques to be used 

to quantify and monetize costs and 

benefits, the Corps’ analysis must 

include information to justify the use of 

any technique as the most appropriate 

given the circumstances, how it 

compares to other methods that could 

have been used (pros vs. cons), and 

what are the risks and uncertainties 

inherent in using that particular 

technique. The ASPs allow for the use 

of new analytical techniques and 

methodologies as they become available 

and cost-effective. Costs would include 

the costs of O&M. One comment was 

provided which indicated that the final 

regulation should more clearly describe 

how O&M costs projected for the Corps 

and local sponsors are to be included in 

the benefit-cost analysis used to 

evaluate the range of project 

alternatives. 

Response: No changes were made to 

the final rule regarding tools and 

methodologies. All O&M costs incurred 

by the Corps or others during the period 

of evaluation for the study are included 

in the analysis. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

The Army solicited comment on how 

such analysis would best be conducted 

for projects affecting Tribal Nations, and 

whether the Corps should identify, 

characterize, and evaluate the benefits 

to the Tribal Nation separately, as 

opposed to including them in a broader 

assessment of the overall benefits of the 

proposed project and the alternatives to 

the U.S. Nation (including the affected 

Tribal Nations). 

One comment supported the 

inclusion of subsistence and social 

impact assessments and greater 

transparency for evaluating benefits and 

impacts under the environmental justice 

analysis of a proposed project. One 

comment stated that the impacts of 

existing Corps projects and climate 

change on Tribal watersheds should be 

fully evaluated, as the costs suffered by 

Tribes should be identified separately 

from any other costs or damages 

incurred, including mitigation. Two 

comments specifically supported the 

use of a social impact assessment 

methodology to determine social costs 

of a proposed water resources project, 

with one comment asking for it to be 

added as a Guiding Principle of the 

PR&G. 

Response: Changes were made to the 

final rule regarding the treatment of 

Tribal benefits. As noted in the 

discussion of § 234.4(c) in this 

preamble, several comments supported 

the separation of Tribal benefits from 

public benefits. The rule was amended 

to state that the consideration of benefits 

to Federally recognized Tribes will be 

done in direct consultation with the 

respective Tribal Nation and will 

supplement the public benefit analysis. 

While the PR&G apply to new water 

resources development investment 

decisions (except for those Federal 

activities noted in § 234.4(d)(2)), 

compliance with other Federal statutes 

and laws would still be required. Social 

impact analysis is a methodology that 

could be used to evaluate social costs 

and will be considered during the 

development of implementing guidance, 

where warranted, following the 

completion of the final rule. 

Section 234.10 Compare 

alternatives. 

Section 234.10(a) Comparing 

alternatives. This section calls for 

alternatives to be compared with each 

other and the No Action alternative. The 

alternatives would include a description 

of the adaptability and resilience of 

alternatives to climate change and other 

risks. The alternative plan (or plans) 

that reasonably maximizes net public 

benefits would be identified. The ASPs 

explicitly call for robust engagement to 

provide meaningful participation and 

input from Tribal Nations and 

stakeholders as they may have different 

perspectives, values, considerations, 

and information on potential effects to 

inform tradeoffs between alternatives. 

The Army solicited comment on how 

it could compare alternatives and 

develop a recommendation. 


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10See https://www.rockefellerfoundation.org/ 

report/city-resilience-framework/. Last accessed 

May 21, 2024. 

One comment recommended that this 

section of the rule be strengthened to 

indicate that the considerations must 

include beneficiaries and any others 

that will be significantly impacted, and 

that their perspectives and preferences 

will be elicited on alternatives. Another 

commenter suggested the text in 

§ 234.10(a) include obtaining values and 

input from stakeholders and the affected 

community. One commenter 

recommended additional guidance to 

assist planners in determining how to 

maximize net public benefits. One 

commenter supported the inclusion of 

environmental justice benefits and costs 

among the display of effects of 

alternatives. 

Response: The Army made minor 

edits to this section of the Rule for 

clarity. The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

The Army also solicited comment on 

when it would be appropriate to apply 

multi-criteria decision analysis within a 

PR&G analysis. One commenter 

responded and indicated that multicriteria decision analysis would be 

appropriate to use as a decision aiding 

tool. 

Response: No changes were made to 

the final rule regarding the use of multicriteria decision analysis. Multi-criteria 

decision analysis is a tool that may be 

used for assessing the tradeoffs among 

alternatives and can aid in decisionmaking. The Corps will review existing 

guidance and provide updated guidance 

relative to comparing alternatives, 

where warranted, following completion 

of the final rule. 

Another approach that could be 

followed is structured decision-making. 

In addition, in certain instances, the 

Corps has employed decision 

frameworks such as using resilience as 

a guiding strategy under the City 

Resilience Framework 10 for the Coastal 

Texas study. The City Resilience 

Framework presents a broad, multidimensional perspective on the 

integrated conditions that support 

resilience within a community. The 

framework highlights four dimensions 

of resilience: Health and Wellbeing, 

Economy and Society, Infrastructure 

and Environment, and Leadership and 

Strategy. The Army solicited comment 

on whether the City Resilience 

Framework aligns with the PR&G 

Guiding Principles and if it could be 

employed in a decision framework 

under the ASPs. 

One commenter mentioned that the 

City Resilience Framework could be 

used for assessing tradeoffs and effects 

of alternatives. 

Response: No changes were made to 

the rule. The Corps will review existing 

guidance and provide updated guidance 

relative to the PR&G decision 

framework, where warranted, following 

completion of the final rule. 

The Army solicited comment on the 

various frameworks and methods that 

may be employed in the decisionmaking process when facing a multidimensional problem with complex 

tradeoffs between monetary and nonmonetary outputs and quantitative and 

qualitative data, which would support 

objective analysis and sound decisionmaking. 

The Army received comments that 

there should be a specific system of 

accounts to realistically evaluate and 

balance tradeoffs. Others recommended 

that the four accounts from the 1983 

P&G be included in the ASPs. One 

commenter requested additional detail 

and guidance related to the evaluation 

and comparison of factors that cannot be 

monetized or quantitatively evaluated. 

The Army solicited comment on 

whether the Corps should pursue a 

more straightforward approach, 

maximizing net public benefits as a 

primary metric for comparing the 

alternatives and evaluating the tradeoffs, 

and clarify the decision framework. 

The Army received comments that 

additional direction should be provided 

to assist planners in determining how to 

maximize net public benefits. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance relative to tools, methods, and 

processes, where warranted, following 

completion of the final rule. 

The Army received comments 

through Government-to-Government 

consultation regarding Tribal Nations as 

beneficiaries and appropriately 

identifying benefits to Tribes. Tradeoff 

analysis will not be used to identify 

potential mitigation of loss of treaty 

rights, and benefits to Tribal Nations 

can only be identified through direct 

consultation. 

Response: The rule was amended in 

§ 234.10(a)(3) to state that Tribal treaty 

rights are guaranteed by such treaties. 

As mentioned earlier, § 234.9(c) was 

amended to ensure that the 

consideration of benefits to Federally 

recognized Tribes is done in 

consultation with the respective Tribal 

Nation. 

Section 234.10(b) Tradeoffs. Tradeoffs 

are anticipated and expected for the 

implementation of the ASPs regarding 

the potential alternatives. Tradeoffs are 

assessed from the perspective of the 

specific circumstances of each study, 

including the study area, resources, 

impacted populations, and study 

authority to inform plan selection. 

The tradeoffs will be described 

throughout the decision-making process 

to ensure an informed decision. 

Different project elements may be 

justified for different types of public 

benefits, that should be described. 

Tradeoffs may be identified on the basis 

of both quantifiable and unquantifiable 

terms. In addition, each alternative’s 

separable element’s goals and objectives 

should be identified to provide a 

rationale for inclusion or exclusion from 

the alternative. 

The Army solicited comment on 

whether the Corps should pursue a 

more straightforward approach, using 

maximizing the net benefits as a 

primary metric for use in comparing the 

alternatives and evaluating the tradeoffs, 

and to clarify the decision framework. 

Multiple commenters indicated that a 

system of accounts to evaluate tradeoffs 

should be displayed to be complete and 

transparent. Several commenters 

suggested that the non-Federal interest 

and other stakeholders be included in 

the decision of the tradeoff analysis. 

One commenter requested that the 

phrase ‘‘professional judgment’’ be 

clarified. Another noted that investment 

decisions should be based on complete 

and transparent tradeoffs. One 

commenter mentioned that the Corps 

should clarify that benefit-cost analysis 

is an appropriate decision framework 

and that net benefit maximization is an 

appropriate decision criterion. 

Response: No changes were made to 

the final rule. Benefit-cost analysis is 

the basis for plan selection, and net 

public benefit maximization is 

fundamental to the ASPs. Section 

234.10(a)(3) of the rule explicitly 

requires consideration of the 

preferences of Tribal Nations and 

stakeholders when comparing 

alternatives. The phrase ‘‘professional 

judgment’’ is now defined in § 234.2(m) 

of the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.10(c) Information for 

inclusion in the analysis. This 

paragraph outlines the information and 

tables that will promote consistency and 

transparency in comparisons across 

different studies. The information to be 

included in the analysis and 

documentation is consistent with other 


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Federal agency approaches in their 

ASPs, so it can also provide consistency 

across the Federal Government. 

Information must highlight how 

alternatives achieve the four evaluation 

criteria of completeness, effectiveness, 

efficiency, and acceptability. 

Additional tradeoff displays should 

show any other relevant important 

information. A summary table will 

display the economic, environmental, 

and social costs and benefits, and 

another table would indicate the extent 

to which the alternatives achieve the 

Guiding Principles. 

The Corps should use the most 

readily available, scientifically 

acceptable, and best available data and 

information, to include Indigenous 

Knowledge, for assessing tradeoffs. 

The Interagency Guidelines support 

use of a common framework that would 

be used across agencies enhance 

transparency and clarity about the 

decision-making process, and encourage 

agencies to collaborate to develop these 

common displays. 

The Army solicited comment on the 

tools, methods, and processes for 

assessing the tradeoffs to best elicit 

preferences resulting in the most 

informed recommendations in a 

consistent manner, although variation is 

expected due to the nature and diversity 

of water resources and their associated 

challenges, which vary greatly across 

the Nation. 

Several commenters identified the 

need to refine methodologies to ensure 

that local and regional benefits are not 

overshadowed by national 

considerations and should be 

acknowledged in the benefit evaluations 

and decisions. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

Section 234.10(d) Risk and 

uncertainty. This section requires a 

description of areas of risk and 

uncertainty with sufficient detail so that 

decisions can be made with knowledge 

of the degree of reliability and the limits 

of available information, recognizing 

that even with the best available 

engineering and science, risk and 

uncertainty will always remain. From 

the vantage point of one who is deciding 

now whether to propose an investment 

in water resources to achieve results in 

the future, the risk and uncertainty in 

the outcome tend to increase over time. 

Therefore, the study should include an 

analysis of the range of expected results 

from the investment both in the shortterm and in the less predictable future, 

in order more fully to account for the 

effects of the risk and uncertainty. 

The Army solicited comment on the 

Corps’ approach to identifying areas of 

risk and uncertainty, including whether 

certain Corps studies should include an 

estimate of the return on investment 

under current conditions. 

Commenters supported using science 

to describe risks and uncertainty. One 

commenter suggested alternative 

methods to conduct efficiency analysis. 

Response: The Corps consolidated the 

discussion of risk and uncertainty in 

one place in the final rule. Therefore, 

the final rule no longer includes 

§ 234.10(d); and some of the language 

proposed in that subsection has moved 

to § 234.7(d). The Corps also has revised 

§ 234.7(d) to include language on 

providing an estimate in the study of the 

extent to which the uncertainty may 

change over time. The Corps will review 

existing guidance and provide updated 

guidance relative to methods to account 

for risks and uncertainties, where 

warranted, following completion of the 

final rule. 

Section 234.11 Select the 

recommended plan. 

Section 234.11(a) Recommended plan. 

The Corps will recommend a decision to 

either: (1) propose authorization of an 

alternative project, program or plan; (2) 

pursue an alternative under existing 

law; (3) propose implementation of a 

project, program or plan to be 

implemented by others; or (4) take no 

further Corps action. Federal 

investments should seek to achieve the 

Federal Objective and maximize net 

public benefits, as measured by the 

economic, environmental, and social 

costs and benefits to the Nation. 

The PR&G help the Federal 

Government improve decision-making 

by accounting for long-term costs and 

benefits; developing investments to 

withstand or adapt to climate change; 

creating better, more resilient 

communities; and avoiding conflicts 

and project delays by including local 

input. 

Multiple letters were received 

containing comments associated with 

§ 234.11. One comment suggested 

additional explanation of how 

preferences from non-Federal sponsors, 

Tribal Nations, stakeholders, and others 

will be considered in the decisionmaking process. The same letter also 

suggested the rule incorporate methods 

for monetizing environmental and social 

effects. One comment expressed a need 

for a requirement to explain how these 

preferences were incorporated into the 

analysis and considered in the decisionmaking process. A letter supported 

consideration of tools for tradeoff 

analysis for a more structured decisionmaking process, and supported 

explicitly documenting the process. 

Another letter requested that the rule 

require the rationale for plan selection 

to include how non-Federal sponsors 

and stakeholders were engaged in plan 

selection. One comment expanded on a 

recommendation to include plan 

selection criteria in the rule to inform 

non-Federal interests and the public of 

these requirements, and to further 

support Congressional authorization 

and appropriation steps to lead to 

successful cost-shared project 

implementation. One comment 

recommended an edit to § 234.11 by 

adding ‘‘consistent with achieving the 

Federal objective of protecting and 

restoring the nation’s environment.’’ 

Another commenter suggested tying the 

selection of a plan to the Federal 

Objective. One organization commented 

that it remains to be seen how benefits 

analysis would be used to select a plan 

and that there could be inconsistencies 

nationwide. 

Response: Edits were made to the 

final rule regarding investment 

recommendations and consideration of 

monetized and non-monetized outputs 

in the decision-making process. The 

Rule was further modified to require the 

Corps to analyze and fully consider all 

social, environmental, and economic 

benefits and costs of each separable 

element of a proposed investment. 

Section 234.10(a)(3) of the final rule 

explicitly requires consideration of the 

preferences of Tribal Nations and 

stakeholders when comparing 

alternatives. Sections 234.6 and 234.7(i) 

of the final rule specify that the Corps 

will identify potential impacts to Tribal 

treaty rights at the earliest phases and 

throughout the plan evaluation process, 

screening alternatives that impact Tribal 

treaty and water rights. The Corps will 

review existing guidance and provide 

updated guidance, where warranted, 

following completion of the final rule. 

The Army disagrees with comments 

about the use of benefits analysis and 

potential nationwide inconsistencies. 

No changes were made to the rule in 

this regard. 

Section 234.11(b) Exceptions. The 

rule allows for exceptions for a 

recommended plan that does not 

maximize net public benefits; however, 

such exceptions must be approved by 

the Assistant Secretary of the Army for 

Civil Works. This policy underscores 

the importance of the PR&G approach to 

put forth a recommended plan that 

seeks to maximize net public benefits. 

Multiple comment letters were 

provided regarding this section of the 

rule. One questioned whether an 


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11See https://www.usace.army.mil/Missions/ 

Civil-Works/Project-Planning/Legislative-Links/ 

WRDA-2022/. Last accessed May 21, 2024. 

exception would not be required for 

recommended plans that do not meet 

the authorized study purpose. Another 

letter suggested the rule consider 

options to require additional support 

from cost-share partners and others. 

Another recommended removing 

language in §§ 234.3 and/or 234.11(b) 

potentially allowing unbounded 

exceptions. 

Response: No changes were made to 

the rule. Input from non-Federal 

interests, Tribal Nations, stakeholders, 

affected populations, and other 

interested parties is routinely 

considered in the decision-making 

process. The Corps will review existing 

guidance and provide updated guidance 

relative to policy and procedural 

requirements, where warranted, 

following completion of the final rule. 

An exception from the Assistant 

Secretary of the Army for Civil Works 

will be required if recommending a plan 

other than the plan that maximizes net 

public benefits. 

Additional comments received. A 

number of comments that are outside of 

the various sections of the rule or did 

not explicitly address questions posed 

by Army in the proposed rule. For 

example, one commenter recommended 

the use of a commercial ecosystemfriendly marine concrete product that 

can be used for marine infrastructure 

work. While this input is noted, specific 

products are beyond the scope of the 

ASPs. 

Many of the comments received on 

the rule asked for additional details on 

the specific methods, procedures, tools, 

techniques, and relevant examples that 

the Corps would use for implementation 

of these ASPs. One comment requested 

that future guidance address 

requirements for how the Corps will 

complete studies under the ASPs within 

the three-year study duration and threemillion-dollar Federal cost framework of 

Section 1001 of the Water Resources 

Reform and Development Act of 2014 

(Pub. L. 113–121). This letter further 

recommended earlier vertical 

integration within the Corps while 

freeing up more time for plan 

formulation. One comment stressed the 

need for vertical integration during the 

initial application of these ASPs to 

ensure implementation challenges are 

addressed efficiently. A comment was 

received during a virtual public meeting 

requesting that non-Federal interests be 

included in training opportunities 

associated with the application of the 

ASPs. A number of comments requested 

that any implementation guidance be 

developed in a transparent manner to 

include an opportunity for public input. 

Response: No changes were made to 

the final rule. The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. The Corps 

will review the need for updated 

procedures, methodologies, and other 

requirements, as well as public 

engagement, to effectively implement 

the rule. 

A comment was received from a 

professional association recommending 

that project delivery teams be comprised 

of qualified staff and disciplines, 

including landscape architects, during 

all project phases. This association also 

indicated that landscape architecture 

design and planning can reduce and 

mitigate ecological harm, improve 

resilience, and adapt communities to 

the effects of climate change. Another 

organization offered its support and 

services in developing water resources 

projects and facilitating public 

processes. A local entity suggested 

adding language recognizing the nonFederal sponsor as a true member of the 

team. One letter noted the non-Federal 

sponsor should be highly valued and 

leveraged in the development of project 

authorization documents and for 

insights into the decision-making 

process. One organization suggested the 

inclusion of Engineering With Nature 

scientists to support the development 

and design of nature-based solutions for 

risk reduction. 

Response: No changes were made to 

the rule. These comments are noted. It 

is current practice to build project 

delivery teams from appropriate 

qualified staff to address the particular 

water resources issue under 

investigation. This would include staff 

from within the Corps, non-Federal 

interests, partners, and other external 

resources. 

One commenter suggested that the 

ASPs include a discussion on the 

requirements of Section 8106 of WRDA 

2022. 

Response: No changes were made to 

the rule. The Corps issued 

implementation guidance for Section 

8106(a) and 8106(b) of WRDA 2022 in 

February 2024.11 The Corps will review 

existing guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. 

One comment expressed concern that 

the ASPs mandate multi-purpose 

projects, and expressed particular 

concern about the impact that such a 

mandate would have on shoreline 

protection projects. 

Response: No changes were made to 

the rule. The ASPs do not mandate 

multi-purpose projects. Alternatives 

will be formulated based on the specific 

study authorization and in consultation 

with the non-Federal sponsor and other 

stakeholders with no requirement for a 

project to be multi-purpose. While 

projects will evaluate social, economic, 

and environmental benefits, many 

studies will remain single purpose. 

One comment focused on regulatory 

protections for fishing grounds. 

Response: Comment is noted although 

it is beyond the scope of this rule. No 

changes were made to the rule. 

One organization noted that 

conflicting State and Federal regulations 

may hinder the implementation of 

nature-based solutions. They 

recommended convening leadership of 

State and Federal agencies to discuss 

which existing laws are relevant to 

promoting marsh and wetland 

preservation and restoration in response 

to the impacts of sea level rise, and 

which laws hinder improvements to 

coastal resilience. They noted that 

determining how to accept and 

compromise on habitat trade-offs will be 

an important discussion topic and that 

placing dredged sediment in open water 

to maintain wetland footprints is 

needed for long-term coastal resilience. 

The commenters suggested that the 

meeting would aim to develop 

exemptions or revise regulations and 

policies to help promote the costeffectiveness of nature-based solutions. 

Response: The proposed resolution of 

the comment extends beyond the need 

and intent of this rule. No changes were 

made to the rule. 

One comment was received regarding 

the feasibility of land acquisition that 

non-Federal interests are required to 

provide for project implementation. 

Response: No changes were made to 

the rule. Real estate is the responsibility 

of the non-Federal interest for any Corps 

water resources development project. If 

a non-Federal interest is unable to 

acquire the necessary real estate, plan 

selection could be affected. 

A responding organization offered 

comment on the need for the Corps to 

expand its capacity and to begin 

attracting and elevating the skills 

necessary to apply the ASPs from 

within its ranks. 

Response: No changes were made to 

the rule. The Corps recognizes the need 

to develop and train staff to perform the 

analysis and other elements of the ASPs. 

These efforts will be a key factor in the 

success of the new framework. 

One commenter indicated that the 

Corps should base cost estimates on 

realistic projections of the project’s full 


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12See https://www.whitehouse.gov/ 

environmentaljustice/justice40/. Last accessed May 

21, 2024. 

life-cycle costs, likely construction start 

date, likely funding streams over time, 

and historical cost increases by project 

type and geographic location. 

Response: No changes were made to 

the rule. The Corps will review existing 

guidance and provide updated 

guidance, where warranted, following 

completion of the final rule. The Corps 

considers life cycle costs, likely 

construction start dates, and geographic 

locations when developing its cost 

estimates. 

E. Expected Benefits and Costs of the 

Rule 

Overall, this rule provides greater 

flexibility to the Federal Government 

and non-Federal interests to consider a 

wider range of benefits, improve the 

effectiveness of Federal and local 

investments in Civil Works projects, and 

provide water resources projects that 

better serve communities and the 

public. Informed by a more detailed 

understanding of various risks, Federal, 

State, local, and Tribal governments can 

apply available resources to the 

activities that are most likely to produce 

public benefits. A full accounting of 

benefits and costs will result in projects 

that increase public benefits. An 

increased focus on collaboration 

throughout the planning process: 

ensures projects benefit from local 

knowledge, improves Federal decisionmaking, and promotes transparency and 

responsiveness. A focus on 

environmental justice ensures that the 

Federal Government’s resources benefit 

disadvantaged communities, including 

many communities that are 

overburdened by pollution and 

marginalized by underinvestment. The 

Corps has eleven covered programs 

under the Justice40 Initiative 12 that 

would apply the ASPs as described in 

this rule. The use of an ecosystem 

services approach allows the planning 

process to better anticipate and account 

for the effects of a Federal investment. 

As the Corps starts implementing this 

new approach, evaluation and decisionmaking methods, tools, and processes 

will need to be developed, resulting in 

increased costs in time and effort for all 

parties. More resources will likely be 

directed to the evaluation of social, 

environmental, and non-traditional 

economic benefits and costs; 

engagement with other governmental 

and non-governmental partners; and 

assessing and communicating risks and 

uncertainties to the public. The Corps 

Civil Works program is committed to 

ensuring development of an adequate 

study scope and documentation; 

establishing a realistic schedule and 

budget early in the study process; and 

ensuring adequate leveraging of data, 

models, methods, and information from 

Tribal, State, local, and nongovernmental resources to assist in 

development and evaluation of 

alternatives. 

This rule will mostly affect the 

Investigations appropriations account of 

the Corps, that Congress uses to provide 

funding for authorized feasibility 

studies of potential new Civil Works 

projects, major rehabilitation studies, 

and general reevaluation and review 

studies. The ASPs will also affect the 

Continuing Authorities Program funded 

out of the Construction appropriations 

account, and Section 216 and 

reallocation studies funded out of the 

O&M appropriations account. We 

anticipate the costs to the Federal 

Government to implement the rule to 

remain roughly the same as under the 

current planning process since the ASPs 

change only the process to select the 

recommended project alternative rather 

than the Congressional appropriation 

process. The estimated value added to 

these projects as a result of the 

application of the ASPs would exceed 

any estimated added costs. The change 

to the Corps’ internal process results in 

a shift in focus from strictly an 

economic evaluation to one evaluating 

economic, environmental, and social 

considerations. This would require 

additional tools and methods as 

described in the rule preamble which 

are existing, in development, or would 

evolve as science and analytical studies 

improve over time. The Corps uses tools 

and methods for the current approach, 

and will tools and methods to the 

current approach to include social and 

environmental considerations. This new 

process will require additional trainings 

and the development of tools and 

methods not currently available, which 

may result in some minor additional 

costs to the Corps. Those initial costs 

would be outweighed by the long-term 

benefits of the implementation of the 

ASPs and efficiencies gained by the use 

of new tools and methods. The costs to 

the public would be the same as under 

the current planning process. The 

Corps’ planning process and Civil 

Works programs and projects that fall 

under the ASPs are not mandatory or 

obligatory requirements on the public, 

but rather are initiated and voluntarily 

entered into by the non-Federal interest 

and the Corps pursuant to Congressional 

authorization. 

See the Regulatory Impact Analysis 

for further discussion on the benefits 

and costs of the rule. 

F. Procedural Requirements 

a. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review. Executive Order 

12866 (58 FR 51735 (Oct. 4, 1993)), as 

amended by Executive Order 14094 (88 

FR 21879 (Apr. 11, 2023)), defines a 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) have an annual effect on the 

economy of $200 million or more 

(adjusted every three years by the 

Administrator of the Office of 

Information and Regulatory Affairs for 

changes in gross domestic product); or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, territorial, or Tribal 

governments or communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) raise legal or policy issues for 

which centralized review would 

meaningfully further the President’s 

priorities or the principles set forth in 

this Executive Order, as specifically 

authorized in a timely manner by the 

Administrator of the Office of 

Information and Regulatory Affairs in 

each case. 

This rule has been found to be a 

significant regulatory action and has 

therefore been submitted to OMB for 

clearance. 

This rule establishes the procedures 

to implement the PR&G but does not, by 

itself, impose costs or benefits. Potential 

costs and benefits would only be 

incurred as a result of actions taken 

under existing Corps programs relying 

on these procedures. See the Regulatory 

Impact Analysis for further discussion 

on the costs and benefits of the rule. 

b. Review under the National 

Environmental Policy Act. As required 

by NEPA, the Department of the Army 

prepares appropriate environmental 

analyses for its activities affecting the 

quality of the human environment. The 

Corps has determined that this 

regulation would not significantly affect 

the quality of the human environment. 

The rule establishes the procedure the 

Corps will consider in evaluating 

investments in projects, programs, and 

plans. The Corps will conduct an 

action-specific NEPA analysis before 


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undertaking any activities that could 

potentially affect the quality of the 

human environment and will integrate 

the NEPA process with the procedure 

laid out in this rule. A draft 

Environmental Assessment was 

prepared and circulated to support this 

rule-making process. As a result of the 

public comment period, no significant 

changes were made to the final 

Environmental Assessment. The only 

edits included the removal of the 

proposed rule, adding a summary of the 

public involvement process, and adding 

the determination that an 

Environmental Impact Statement is not 

required for the promulgation of the 

regulation. The final Environmental 

Assessment to support this 

determination is available at http://

www.regulations.gov. 

c. Unfunded Mandates Reform Act of 

1995 (Pub. L. 104–4). The Unfunded 

Mandates Reform Act does not apply to 

this rule because this rule provides 

policy for Corps Civil Works planning 

processes authorized through 

congressional action. The Corps has also 

found, under Section 203 of the Act, 

that small governments, as defined 

under the Regulatory Flexibility Act 

analysis, will not be significantly and 

uniquely affected by this rulemaking. 

Although small governments may be 

non-Federal interests for a Corps project 

and therefore be involved in the ASPs, 

there are other forms of non-Federal 

interests and other entities engaged in 

the process, so small governments are 

not uniquely affected. The action 

imposes no enforceable duty on any 

Tribal, State, or local governments, or 

the private sector. 

d. Paperwork Reduction Act (PRA) of 

1995 (44 U.S.C. 3501 et seq.). This rule 

does not impose any information 

collection requirements for which OMB 

approval under the PRA is required. 

e. Executive Order 13132: Federalism. 

This rule will not have substantial 

direct effects on the States, the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

f. Regulatory Flexibility Act. The 

Regulatory Flexibility Act, as amended 

(5 U.S.C. 601 et seq.), generally requires 

an agency to prepare a regulatory 

flexibility analysis of any rule subject to 

notice-and-comment rulemaking 

requirements under the Administrative 

Procedure Act or any other statute 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small organizations, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of the 

rule on small entities, a small entity is 

defined as: (1) a small business based on 

the Small Business Administration size 

standards; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; and (3) a small not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

The Army certified that this 

regulation does not have a significant 

effect on a substantial number of small 

entities. The regulation merely provides 

ASPs for the Corps’ planning processes 

implementing the PR&G. Although 

small entities might benefit from such 

Corps water resources development 

projects—just as large entities and 

private individuals might—the agency 

procedures under the regulation do not 

place any burden on small entities. 

g. Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments. Under 

Executive Order 13175, the Federal 

Government may not issue a regulation 

that has substantial, direct effects on 

one or more Tribal Nations, on the 

relationship between the Federal 

Government and Tribal Nations, or on 

the distribution of powers and 

responsibilities between the Federal 

Government and Tribal Nations. The 

Executive Order also states the Federal 

Government may not issue a regulation 

that imposes substantial direct 

compliance costs on those communities, 

and that is not required by statute, 

unless the Federal Government provides 

the funds necessary to pay the direct 

compliance cost incurred by the Tribal 

Nation governments, or the Federal 

Government consults with those 

governments. If complying by 

consulting, Executive Order 13175 

requires agencies to provide OMB, in a 

separately identified section of the 

preamble to the rule, a description of 

the extent of prior consultation with 

representatives of affected Tribal Nation 

governments, a summary of the nature 

of Tribal Nation concerns, and a 

statement supporting the need to issue 

the regulation. In addition, Executive 

Order 13175 requires that agencies 

develop an effective process permitting 

elected officials and other 

representatives of Tribal Nation 

governments an opportunity to provide 

timely input in the development of 

regulatory policies on matters that 

significantly or uniquely affect their 

communities. 

This regulation does not impose 

significant compliance costs on any 

Tribal Nation, nor does it otherwise 

have substantial direct effects on any 

Tribal Nation. The regulation merely 

provides agency procedures specific to 

the Corps to implement the PR&G. 

Whether the Corps initiates a water 

resources development project for 

Federal investment depends on if it is 

authorized by Congress. The Army 

believes that the regulation itself does 

not directly result in a substantial, 

direct effect on the relationship between 

the Army and Tribal Nations but does 

recognize that implementation of the 

ASPs at a project, program, or plan level 

may result in improved engagement and 

collaboration and appropriate solutions 

to water resources problems in 

partnership with Tribal Nations. The 

Army’s initiatives to comply with the 

Executive Order include: (1) initiating 

Government-to-Government 

consultation on the Federal Register 

notice to Modernize Civil Works (87 FR 

33756 (June 3, 2022)) to permit 

meaningful, early, and robust 

engagement in development of the 

proposed rule; (2) conducting a virtual 

meeting on this effort with Tribal 

Nations held on July 21, 2022; (3) 

responding to all requests for one-onone consultation and meeting with three 

Tribal Nations at a leader-to-leader level 

and one Tribal Nation at a staff-level. 

The Army conducted Government-toGovernment consultation on this rule 

action through a specific Dear Tribal 

Leaders letter sent to Tribal leaders. In 

addition, the virtual public meeting 

held on March 19, 2024, was intended 

to receive Tribal comments on the 

proposed rule. Tribal Nations were 

invited to submit written comments to 

the docket for this rule. All letters 

received by the Army as part of the 

Tribal consultation process may be 

found in the docket 

(www.regulations.gov at Docket ID COE– 

2023–0005). In addition, the Army 

engaged in Government-to-Government 

consultation with one Tribal Nation on 

this rule in accordance with the existing 

Tribal Consultation Policy. The Corps’ 

provision of water resources 

development projects and services does 

not affect the distribution of power or 

responsibilities between the Federal 

Government and Tribal Nations. This 

rule will neither impose substantial 

direct compliance costs on federally 

recognized Tribal governments nor 

preempt Tribal law. 

h. Executive Order 13045: Protection 

of Children from Environmental Health 

Risks and Safety Risks. The Army 

interprets Executive Order 13045 as 

applying only to those regulatory 

actions that concern environmental 

health or safety risks that the agencies 


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have reason to believe may 

disproportionately affect children, per 

the definition of the term ‘‘covered 

regulatory action’’ in Section 2–202 of 

the Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

i. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. This action is not 

a significant energy action because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

j. National Technology Transfer and 

Advancement Act. This rulemaking 

does not involve technical standards, 

and as such does not trigger 

requirements under the National 

Technology Transfer and Advancement 

Act. 

k. Executive Order 14096: Revitalizing 

Our Nation’s Commitment to 

Environmental Justice for All; Executive 

Order 12898: Federal Actions To 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations. The Army believes that 

this action does not have 

disproportionate and adverse human 

health or environmental effects on 

communities with environmental justice 

concerns. 

The ASPs amplify the goals of 

Executive Order 14096 by incorporating 

environmental justice principles into 

the Corps’ planning processes, 

connected with and as part of 

environmental and economic goals, as 

opposed to solely relying on economic 

justification. 

For this rule, consistent with the 

governing statute and Executive Order 

14096, the Army considered whether 

the change in benefits due to this rule 

may be differentially distributed among 

communities with environmental justice 

concerns in the affected areas when 

compared to both baselines. This rule 

action establishes a process for the 

Corps to identify a final array of 

alternatives for water resources 

development project investments and to 

inform the recommended plan. The rule 

would not directly result or contribute 

to benefits to any particular community, 

as such projects must be congressionally 

authorized and appropriated. However, 

the consideration of social, 

environmental, and economic goals, out 

of necessity, incorporates environmental 

justice considerations into those 

alternatives and the Corps’ 

recommended alternative. The impacts 

of the changes to the Corps’ processes 

proposed in this rule would be 

beneficial to communities with 

environmental justice concerns because 

it ensures environmental justice 

considerations are brought forth and 

considered in the Corps’ Civil Works 

processes. 

l. Congressional Review Act (CRA). 

This action is subject to the CRA, and 

the Corps will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. Pursuant to the CRA (5 U.S.C. 

801 et seq.), the Office of Information 

and Regulatory Affairs designated this 

rule as not a ‘‘major rule’’, as defined by 

5 U.S.C. 804(2). 

List of Subjects in 33 CFR Part 234 

Administrative practice and 

procedure, Intergovernmental relations, 

Technical assistance, Water resources. 

Approved by: 

Jaime A. Pinkham, 

Acting Assistant Secretary of the Army (Civil 

Works). 

■ Accordingly, for reasons stated in the 

preamble, 33 CFR part 234 is added to 

read as follows: 

PART 234—CORPS OF ENGINEERS 

AGENCY SPECIFIC PROCEDURES TO 

IMPLEMENT THE PRINCIPLES, 

REQUIREMENTS AND GUIDELINES 

FOR FEDERAL INVESTMENTS IN 

WATER RESOURCES 

Sec.

234.1 General. 

234.2 Definitions. 

234.3 Exceptions. 

234.4 Objectives and applicability. 

234.5 Level of analysis. 

234.6 The planning process. 

234.7 Evaluation framework. 

234.8 Final array of alternatives. 

234.9 Evaluate effects of alternatives. 

234.10 Compare alternatives. 

234.11 Select the recommended plan. 

Authority: 42 U.S.C. 1962–3. 

§ 234.1 General. 

(a) This part prescribes the Agency 

Specific Procedures (ASPs) for the 

United States Army Corps of Engineers 

(Corps) to execute its Civil Works 

mission, in accordance with the Water 

Resources Principles and Guidelines 

defined in section 2031 of the Water 

Resources and Development Act 

(WRDA) of 2007 (Pub. L. 110–114; 42 

U.S.C. 1962–3), the Principles, 

Requirements and Guidelines (PR&G) 

issued by the Council on Environmental 

Quality and approved by the Water 

Resources Council, and as called for in 

section 110 of WRDA 2020 (Division AA 

of Pub. L. 116–260). 

(b) Section 2031 of the WRDA of 2007 

(Pub. L. 110–114) directed the Secretary 

of the Army to revise the March 10, 

1983, Economic and Environmental 

Principles and Guidelines for Water and 

Related Land Resources Implementation 

Studies (P&G) for Corps use and to 

address the following considerations: 

advancements in economic and analytic 

techniques; public safety; low-income 

communities; nonstructural approaches; 

interaction with other water resources 

projects and programs; integrated and 

adaptive management; and use of public 

benefits to justify projects. This WRDA 

provision also provided that the Federal 

Objective is to reflect national priorities, 

encourage economic development, and 

protect the environment by seeking to 

maximize sustainable economic 

development, avoid the unwise use of 

floodplains, and protect and restore 

natural ecosystems. 

(c) The PR&G was issued as an 

interagency effort to modernize the P&G. 

The PR&G is comprised of the 

Principles and Requirements (P&R) 

issued in March 2013 and the 

Interagency Guidelines issued in 

December 2014. The PR&G emphasizes 

that water resources projects should 

strive to meet the Federal Objective and 

maximize public benefits relative to 

public costs. The PR&G is designed to 

support water infrastructure projects 

with the greatest public benefits 

(economic, environmental, and social 

benefits) relative to costs. 

(d) Congress directed the Secretary of 

the Army to issue ASPs to implement 

the PR&G in section 110 of WRDA 2020 

(Division AA of Pub. L. 116–260). 

§ 234.2 Definitions. 

Acceptability. The viability and 

appropriateness of an alternative from 

the perspective of the Nation’s general 

public and consistency with existing 

Federal laws, authorities, and public 

policies. It does not include local or 

regional preferences for solutions or 

political expediency. 

Adaptive management. A deliberate, 

iterative, and scientific-based process of 

designing, implementing, monitoring, 

and adjusting an action, measure, or 

project to address changing 

circumstances and outcomes, reduce 

uncertainty, and maximize one or more 

goals over time. 

Completeness. The extent to which an 

alternative provides and accounts for all 

features, investments, and/or other 

actions necessary to realize the planned 

effects, including any necessary actions 

by others. It does not necessarily mean 

that alternative actions need to be large 

in scope or scale. 

Effectiveness. The extent to which an 

alternative alleviates the specified 


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problems and achieves the specified 

opportunities. 

Efficiency. The extent to which an 

alternative alleviates the specified 

problems and realizes the specified 

opportunities at the least cost. 

Federal investment. Investments made 

by the Corps related to water resources 

development projects, including flood 

and storm risk management, ecosystem 

restoration, land management activities, 

navigation, recreation, and hydropower. 

Federal Objective. The fundamental 

goal of Federal investments in water 

resources. Federal water resources 

investments shall reflect national 

priorities, encourage economic 

development, and protect the 

environment. Federal investments 

should strive to maximize net public 

benefits. 

Indigenous Knowledge. Indigenous 

Knowledge may be described as a body 

of observations, oral and written 

knowledge, innovations, practices, and 

beliefs developed by Tribes and 

Indigenous Peoples through interaction 

and experience with the environment, 

consistent with the definitions used in 

43 CFR 2361.5 and 6101.4(h) and the 

Guidance for Federal Departments and 

Agencies on Indigenous Knowledge, 

issued November 30, 2022. It is applied 

to phenomena across biological, 

physical, social, cultural, and spiritual 

systems. Indigenous Knowledge can be 

developed over millennia, continues to 

develop, and includes understanding 

based on evidence acquired through 

direct contact with the environment and 

long-term experiences, as well as 

extensive observations, lessons, and 

skills passed from generation to 

generation. 

Nature-based alternatives. An 

alternative comprised of actions to 

protect, sustainably manage, or restore 

natural or modified ecosystems to 

address societal challenges, while 

simultaneously providing benefits for 

people and the environment. 

Non-Federal interest. (1) a legally 

constituted public body (including an 

Indian Tribe and a Tribal Organization 

(as those terms are defined in 25 U.S.C. 

5304)); or 

(2) a nonprofit entity with the consent 

of the affected local government, that 

has full authority and capability to 

perform the terms of its agreement and 

to pay damages, if necessary, in the 

event of failure to perform. 

Nonstructural alternative. An 

alternative comprised of a nonstructural 

approach or combination of 

nonstructural approaches that addresses 

the water resources problem. 

Nonstructural approach. An approach 

that alters the use of existing 

infrastructure or human activities to 

generally avoid or minimize adverse 

changes to existing hydrologic, 

geomorphic, and ecological processes. 

This may include measures such as 

certain forms of nature-based solutions; 

modified floodplain practices; policy 

modifications; vessel speed limits; 

traffic management and tidal navigation 

restrictions; the reoperation of dams and 

reservoirs to restore or better mimic 

natural hydrology and flow patterns; 

invasive plant removal; signage to limit 

public access at an aquatic ecosystem 

restoration site; setbacks; elevations; 

relocation; buyout/acquisition including 

the acquisition of flowage easements; 

dry flood proofing; and wet flood 

proofing. They may also include actions 

that are not the responsibility of the 

Corps such as providing flood 

insurance, establishing building codes 

for new construction, and other local 

floodplain management practices, 

installing early warning systems, and 

developing emergency evacuation plans. 

Professional judgment. An evidencebased decision that relies on appropriate 

training and experience. 

Public benefits. Encompasses 

economic, environmental, and social 

impacts, and includes those that can be 

quantified in monetary terms, as well as 

those that can be quantified or described 

qualitatively. 

Regional economic development 

effects. The changes in the distribution 

of regional economic activity that would 

result from implementation of an 

alternative plan. These economic effects 

amount to a transfer of resources from 

one part of the Nation to another (either 

from one region of the country to 

another, or within a region). They 

accrue in a local area or region but are 

offset by equivalent losses elsewhere in 

the country. 

Regulatory. Generally, those activities 

subject to legal restrictions promulgated 

by the Federal Government. 

Resilience. Resilience is the ability to 

prepare for threats and hazards, adapt to 

changing conditions, and withstand and 

recover rapidly from adverse conditions 

and disruptions. 

Sustainable. The creation and 

maintenance of conditions under which 

humans and nature can coexist in the 

present and into the future. 

Tribal Nation (Federally recognized 

Indian Tribe or Tribal Organization). An 

Indian or Alaska Native tribe, band, 

nation, pueblo, village, or community 

that the Secretary of the Interior 

acknowledges to exist as an Indian Tribe 

pursuant to the Federally Recognized 

Indian Tribe List Act of 1994, 25 U.S.C. 

5130. 

Unwise use of floodplains. Any action 

or change that diminishes public health 

and safety, or an action that is 

incompatible with or adversely impacts 

one or more floodplain functions that 

leads to a floodplain that is no longer 

self-sustaining or degrades ecosystem 

services. 

Watershed. A land area that drains to 

a common waterbody. 

§ 234.3 Exceptions. 

Exceptions to any requirements or 

policy contained in this part may be 

requested by the Corps or the nonFederal interest or responsible Tribal, 

State, or local government. Exceptions 

must be requested in writing and will be 

reviewed for a decision by the Assistant 

Secretary of the Army for Civil Works. 

§ 234.4 Objectives and applicability. 

(a) Introduction. The goal of the 

Department of the Army’s ASPs is to 

ensure that Army Civil Works 

consistently applies a common 

framework for analyzing a diverse range 

of water resources development 

projects, programs, activities, and 

related actions involving Federal 

investments. The ASPs will advance 

transparency and consistency of the 

Corps’ Federal investments in water 

resources. The intention of the ASPs is 

to outline the steps to apply the PR&G 

to Corps water resources investments, 

including a determination of the 

applicability of the PR&G in the context 

of the Corps’ missions and authorities, 

to provide a common framework for 

evaluation of investment alternatives, 

and to ensure that the Corps adequately 

addresses the Guiding Principles 

identified in the P&R. 

(b) Objectives for Federal water 

resources investments. Section 2031 of 

WRDA 2007 (Pub. L. 110–114; 42 U.S.C. 

1962–3) specifies that Federal water 

resources investments shall reflect 

national priorities, encourage economic 

development, and protect the 

environment. The Corps shall 

accomplish this Federal Objective of 

water resources planning policy by: 

(1) Seeking to maximize sustainable 

economic development; 

(2) Seeking to avoid the unwise use of 

floodplains and flood-prone areas and 

minimizing adverse impacts and 

vulnerabilities in any case in which a 

floodplain or flood-prone area must be 

used; and 

(3) Protecting and restoring the 

functions of natural systems and 

mitigating any unavoidable damage to 

natural systems. 

(c) Net public benefits. The Corps 

shall strive to maximize net public 

benefits to society. Public benefits 


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encompass economic, environmental, 

and social goals, include monetized and 

un-monetized effects, and allow for the 

consideration of both quantified and 

unquantified effects. 

(d) Applicability. (1) The objectives in 

paragraph (b) of this section shall be 

embodied in all new Army Civil Works’ 

water resources investments, which 

include both structural and 

nonstructural approaches to water 

resources problems. The PR&G analysis 

under the Corps’ ASPs described in this 

part is generally required for feasibility 

studies; general re-evaluation reports; 

major rehabilitation reports; studies 

performed under the continuing 

authorities program of the Corps; 

studies to support significant changes to 

project operations including any such 

changes that warrant preparation of an 

environmental impact statement, reallocation studies, and studies 

conducted under section 216 of the 

Flood Control Act of 1970 (33 U.S.C. 

549a); and any other project or program 

not otherwise excluded under paragraph 

(d)(2) of this section. 

(2) The PR&G is not intended to apply 

to all Federal actions. The following 

types of Federal investments are 

identified as excluded from the 

requirements of this part: 

(i) Regulatory actions, such as the 

issuance of permits associated with 

section 404 of the Clean Water Act (33 

U.S.C. 1344). 

(ii) Real estate actions. 

(iii) Planning Assistance to States 

program. 

(iv) Flood Plain Management Services 

program. 

(v) Section 14 of the Rivers and 

Harbors Act of 1899 (33 U.S.C. 408) 

program. 

(vi) Public Law 84–99 program. 

(vii) Water Infrastructure Finance and 

Innovation Act Program. 

(viii) Environmental Infrastructure 

projects. 

(ix) Land management plans. 

(x) Operation and maintenance 

activities that are carried out in a 

manner consistent with the existing 

approved operation and maintenance 

manual or plan for an authorized 

project. This exclusion does not apply 

to significant proposed changes to an 

existing O&M plan including proposals 

that may be controversial, significant 

changes to the existing plan to meet new 

goals, and other significant changes that 

may warrant a further analysis of the 

options for operation and maintenance. 

(xi) International and Interagency 

Services and Support for Others actions. 

(xii) Research or monitoring activities. 

(xiii) Emergency actions. 

(xiv) Projects, programs, or plans that 

fall below the thresholds identified in 

table 1 to § 234.5(c). These excluded 

actions generally occur when 

investments are routine and have 

inconsequential effects on water 

resources. 

(xv) Additional programs, plans, or 

projects which the Assistant Secretary 

of the Army for Civil Works determines 

do not require analysis pursuant to 

§ 234.3. 

§ 234.5 Level of analysis. 

(a) Standard and scaled levels of 

analysis. Once a determination has been 

made that the PR&G does apply, the 

level of analysis shall be determined. 

The level of PR&G analysis required will 

vary in scope and magnitude across 

programs and activities. There are two 

levels of analysis: standard and scaled. 

In general, the level of analysis should 

be commensurate with the significance 

of the Federal investment in terms of 

dollar value and the potential 

environmental impacts. While there is 

not a clear distinction between the 

different levels of analysis, the two 

types of analysis can generally be 

distinguished in several ways: 

(1) A standard analysis seeks to 

evaluate all the relevant benefits and 

costs associated with the project or 

activity using original or secondary 

data. This type of analysis is typically 

used for new or significantly modified 

actions. The Corps would conduct a 

benefit-cost analysis of programs and 

activities that have some effect on the 

environment. For projects/activities that 

fall into the category of standard 

analysis, the analysis should make 

significantly greater efforts to quantify 

and monetize impacts. The extent to 

which effects can and should be 

monetized should be made on a 

resource-by-resource basis and should 

consider the estimated present value 

cost of the project/activity and the 

significance of the effects. 

(2) A scaled analysis is an analysis 

that is more limited in scope for 

projects, programs, or plans that have 

low risk/low cost, have minimal 

consequences of failure, pose minimal 

threats to human life or safety, or do not 

result in significant impacts to the 

environment. A scaled analysis may rely 

on benefits function transfer methods 

and readily available secondary data 

sources. Benefits function transfer 

methods are used to estimate monetary 

values by transferring available 

information about relationships from 

studies already completed to another 

location, context, or issue. Best practices 

would be applied when using this 

approach to avoid common pitfalls. 

(b) Determining the appropriate level 

of analysis. In many cases, professional 

judgment and available resources will 

be important factors in determining the 

appropriate level of analysis. The Corps 

will ensure that cumulative effects of 

many small, routine actions would not 

in itself elevate those investments to a 

scaled or standard analysis. Many of 

those small, routine actions would be 

excluded from PR&G analysis. 

(c) Scope and magnitude of analysis 

required. The threshold criteria for 

project, programmatic, and individual 

plan level analysis for Army Civil 

Works is shown in table 1 to this 

paragraph (c). These thresholds 

represent guidelines for the level of 

analysis that is likely to be most 

appropriate for an activity, given the 

level of investment in, appropriations 

for, or cost of that activity. In 

determining whether a given activity or 

project falls under or exceeds the 

financial thresholds, it is the level of the 

present value of Federal investment that 

is the relevant criterion to use. However, 

for a particular activity, a different level 

of analysis may be more appropriate, 

and projects/programs may depart from 

these guidelines where such a departure 

is justified. In general, a scoping effort 

should be undertaken to evaluate the 

level of effort needed to analyze the full 

range of potential effects. Project-level 

analysis should generally be used for 

water resources investments when the 

Corps has discretion in site-specific 

investment decisions. A programmaticlevel analysis generally has a broader 

scale and/or scope than a project-level 

analysis. Programmatic-level analysis 

generally relates to funding programs or 

where a proposal for a set of similar 

actions analyzed under one decision 

document may occur. 


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TABLE 1 TO PARAGRAPH (c)—MONETARY THRESHOLD CRITERIA

Type of activity 

Total 

investment 

($M) 

Annual federal 

appropriations 

($M) 

Level of analysis 

Projects ..................................................................................................

Proposed Corps investments in water resources, such as infrastructure, ecosystem restoration, new construction, modifications or replacements to existing facilities, and operations and maintenance.

>30 

15–30 

<15 

.............................. Standard analysis. 

Scaled analysis. 

Excluded. 

Programs ................................................................................................ ........................ >100 

50–100 

<50 

Standard analysis. 

Scaled analysis. 

Excluded. 

Individual Plans ......................................................................................

Management plans, such as watershed, master, etc. 

........................ >50 

10–50 

<10 

Standard analysis. 

Scaled analysis. 

Excluded. 

§ 234.6 The planning process. 

(a) Introduction. The following 

planning process will be used to 

implement the common framework 

summarized in the Interagency 

Guidelines for analyzing Federal 

investments in applicable water 

resources. The planning process will 

ensure that plan formulation, 

evaluation, and recommendations for 

proposed Corps investments reflect the 

Guiding Principles identified in the 

P&R: healthy and resilient ecosystems, 

sustainable economic development, 

floodplains, public safety, 

environmental justice, and a watershed 

approach. The planning process consists 

of a series of steps that identify or 

respond to problems and opportunities, 

as well as specific Tribal, State, and 

local concerns, and, in most cases, 

culminates in a recommended plan. The 

process involves an orderly and 

systematic approach to making 

determinations and decisions at each 

step so that the interested public and 

decision-makers in the planning 

organization can be fully aware of the 

following: the basic assumptions 

employed; the data and information 

analyzed; the areas of risk and 

uncertainty; the reasons and rationales 

used; and the significant implications of 

each alternative. The Corps will identify 

impacts to Tribal treaty and water rights 

at the earliest phases and throughout the 

plan evaluation process, screening 

alternatives that impact Tribal treaty 

and water rights. The planning process 

is iterative to adapt to new information 

and understanding. The result of the 

planning process is investment advice. 

The advice may be a recommended plan 

or plans that seek to maximize net 

public benefits in addressing the 

identified water resources problem and 

a description of the analysis of the 

benefits and costs of that and other 

potential plans. 

(b) National Environmental Policy Act 

(NEPA). Where Federal investments in 

water resources require analysis under 

NEPA and this part, Army Civil Works 

should integrate, to the extent possible, 

the analysis in this part into existing 

planning processes, and may integrate 

this part and NEPA analyses in a single 

analytical document that reflects both 

processes. Army Civil Works shall seek 

opportunities to integrate other required 

Federal and State environmental 

reviews with their combined analyses. 

(c) Guiding Principles. The Guiding 

Principles provide the overarching 

concepts that the Corps seeks to 

promote through investments in water 

resources. 

(1) Environmental justice. 

Environmental justice refers to the just 

treatment and meaningful involvement 

of all people regardless of income, race, 

color, national origin, Tribal affiliation, 

or disability, in agency decision-making 

and other Federal activities that affect 

human health and the environment so 

that people: 

(i) Are fully protected from 

disproportionate and adverse human 

health and environmental effects 

(including risks) and hazards, including 

those related to climate change, the 

cumulative impacts of environmental 

and other burdens, and the legacy of 

racism or other structural or systemic 

barriers; and 

(ii) Have equitable access to a healthy, 

sustainable, and resilient environment 

in which to live, play, work, learn, 

grow, worship, and engage in cultural 

and subsistence practices. 

Environmental justice shall be 

considered throughout the Civil Works 

program and in all phases of project 

planning and decision-making. Army 

Civil Works projects and programs shall 

advance equity by meeting the needs of 

communities, such as by reducing 

disparate environmental burdens, 

protecting Tribal treaty rights, removing 

barriers to participation in decisionmaking, and increasing access to 

benefits provided by Civil Works 

programs, including for disadvantaged 

communities. The planning process 

shall put these communities at the front 

and center of studies, providing robust 

opportunities for effective participation 

in the planning and decision-making 

processes. Any disproportionate adverse 

public safety, human health, or 

environmental burdens of project 

alternatives on communities with 

environmental justice concerns shall be 

avoided, minimized, or mitigated to the 

greatest extent reasonable. The Corps 

shall ensure that communities with 

environmental justice concerns have 

meaningful opportunities to identify 

potential alternatives, effects, and 

mitigation measures. The Corps shall 

also be transparent in fully displaying, 

disclosing and considering the potential 

effects of alternative actions on 

communities with environmental justice 

concerns. 

(2) Floodplains. All future Federal 

investments in and affecting floodplains 

must meet some level of floodplain 

resilience. Alternatives affecting 

floodplains should aim to improve 

floodplain resilience if possible and also 

should avoid the unwise use of 

floodplains. To identify floodplain areas 

for the purpose of this section, the Corps 

will use the best-available and 

actionable science including a climateinformed science approach. If 

construction in the floodplain or 

adverse impacts to a floodplain’s natural 

and beneficial functions cannot be 

avoided, then the alternative must 

minimize adverse impacts to these areas 

and mitigate unavoidable impacts using 

nature-based approaches where 

possible. The Corps shall identify and 

communicate potential adverse effects 

on floodplain functions for the various 

alternatives under consideration. Where 

the Corps proposes to construct a 

project feature in a floodplain because 

that is the best way to achieve flood risk 

reduction or other public purposes, that 

proposed Corps project is not 

automatically considered an unwise use 

of the floodplain. The Corps shall strive 

to sustain the floodplain’s natural and 


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beneficial functions to the maximum 

extent practicable given the project’s 

purpose and need. 

(3) Healthy and resilient ecosystems. 

Alternatives shall protect the existing 

functions of ecosystems and may restore 

the health of damaged ecosystems to a 

less degraded and more natural state 

where feasible and in accordance with 

current study and cost-sharing 

authorities. When adverse 

environmental impacts cannot be 

completely avoided, alternatives shall 

strive to minimize environmental 

impacts. When a particular alternative 

will cause unavoidable damage to the 

environment, mitigation to offset 

damages shall be incorporated into that 

alternative and evaluated as part of that 

alternative. In developing alternatives, 

consideration shall be given to 

ecosystem resilience, including 

acknowledging the value of ecosystem 

services to people. When evaluating 

alternatives, the health of the affected 

ecosystem shall be measured in its 

current condition as the baseline and 

projected under the alternatives being 

considered, including the No Action 

alternative. 

(4) Public safety. Alternative solutions 

shall strive to avoid, reduce, or mitigate 

significant risks to public safety, 

including both loss of life and injury, 

and shall include measures to manage 

and communicate the residual risks. 

The impact and reliability of 

alternatives on significant risks to 

public safety must be evaluated for both 

existing and future conditions, 

considered in decision-making, and 

documented. 

(5) Sustainable economic 

development. The Corps’ investments in 

water resources shall encourage 

sustainable economic development. 

This is accomplished through the 

sustainable use and management of 

water resources, ensuring overall water 

resources resilience. Sustainable 

economic development creates and 

maintains conditions under which 

humans and nature can coexist. 

Analysis under sustainable economic 

development shall present, where 

feasible, information about the 

environmental resources in the project 

area or the area where activities are 

occurring, and how the resources and 

their value might be expected to change 

over time. Physical capital information 

may also be included where relevant. 

Analysis shall also include information 

on socio-economic conditions under 

current and projected conditions. 

Economic, social, and environmental 

effects and benefits shall be 

incorporated into the analysis of 

alternatives. 

(6) Watershed approach. When 

developing alternatives, the water 

resources problem being addressed 

should be analyzed on a watershedbased level to facilitate inclusion of a 

complete range of solutions, after 

considering the breadth of impacts 

across the watershed. A key aspect of 

the watershed approach is the analysis 

of information regarding watershed 

conditions and needs, allowing for 

consideration of upstream and 

downstream conditions and needs; 

consideration of other projects and 

actions in place, underway or planned 

by other agencies within the watershed; 

and the more thorough addressing of the 

potential impacts of a proposed action. 

The scale of the watershed used to 

develop alternatives can vary. The 

appropriately sized watershed for the 

particular need being addressed shall be 

a case-specific determination based on 

the relevant facts and circumstances. 

The watershed scale used to develop 

alternatives should encompass a 

geographical area large enough to ensure 

plans address cause and effect 

relationships among affected resources 

and activities, both upstream and 

downstream, and cumulative in nature, 

that are important to gaining public 

benefits or avoiding harm from the 

project. The watershed approach 

ensures that the interconnectedness of 

systems is evaluated to fully understand 

the root causes and symptoms of the 

water resources problem and the full 

range of potential public benefits. 

Communication starting in the scoping 

phase with other agencies or Tribal, 

territorial, State, and local government 

partners working in the watershed will 

help realize a watershed approach. In 

addition, other potential investments in 

the watershed shall also be accounted 

for under the watershed approach. 

(d) Collaboration. (1) The planning 

process will seek to achieve full 

collaboration with a wide range of 

affected Tribes, governmental and nongovernmental stakeholders, 

communities with environmental justice 

concerns, and the public in all stages of 

the planning process. Collaboration 

with Tribes, governmental and nongovernmental stakeholders, 

communities with environmental justice 

concerns, and the general public 

throughout the planning process allows 

consideration of multiple perspectives 

and information sources, such as 

Indigenous Knowledge, and shall be 

emphasized throughout the planning 

process. Collaboration with Tribes, 

communities, and local and State 

governments is a critical element to help 

identify specific problems, 

opportunities, and significant 

constraints within the study area, and to 

help establish planning goals and 

objectives that are consistent with the 

objectives of this part and are locally 

appropriate. Starting at the earliest 

phase in the planning process, Tribes 

and other communities with 

environmental justice concerns shall 

have an opportunity to play a key role 

in identifying alternatives, enhancing 

the positive benefits to their 

communities from potential Federal 

investment, and describing any 

concerns they may have with a potential 

project. Such early, meaningful, and 

robust engagement will help identify 

and address problems, possible 

solutions, and scope studies. Robust, 

early collaboration with Tribes does not 

negate the need for Tribal consultation. 

Robust, early collaboration with Tribes 

is in addition to the requirement to 

conduct early, meaningful, and robust 

Government-to-Government 

consultation with Tribal Nations when 

appropriate. 

(2) To improve Federal decisionmaking and to promote transparency, 

Army Civil Works shall seek to 

meaningfully collaborate with other 

Federal and non-Federal entities. 

Engagement methods and scope of 

engagement will depend on the stage of 

the planning process, the issues, and the 

groups that will be contributing ideas 

and information to the planning 

process, and shall use best practices and 

techniques for engagement. Engagement 

strategies shall consider Corps, Tribal, 

and community resource constraints. 

Indigenous Knowledge, information 

from Tribal Nations, local and State 

governments, non-governmental 

organizations, and the public shall be 

incorporated into the problem definition 

and forecasting of future conditions as 

well as the development and analysis of 

alternatives. Robust engagement and 

transparency throughout the planning 

process, including during the evaluation 

and comparison of alternatives, will 

help deliver sound investment advice 

for water resources solutions that 

maximize net public benefits. 

(e) Investigations and data collection. 

Investigations, data collection, and 

analysis should be ongoing and 

integrated early in the planning process. 

Investigations should be relevant to the 

planning objectives and constraints. The 

interdisciplinary study team should 

identify the most important areas to 

focus on in the study, such as: 

engineering and design; surface water 

and groundwater hydrology; hydraulics; 

geology; operations; water quality; land 

resources; power generation and 

conservation; economics; financing; 


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environmental, social, and cultural 

impacts and mitigation; opportunities 

for recreation; cost estimation for 

construction, operation, maintenance, 

replacement, and energy consumption; 

and climate change (to include 

greenhouse gas emissions). 

Investigation, data collection, and 

analysis should leverage and 

incorporate information from Tribal, 

State, local, non-governmental sources, 

and the public. Additional 

investigations should be performed as 

necessary. 

(f) Identify purpose, problems, needs, 

and opportunities. To identify purpose, 

problems, needs, and opportunities, the 

Corps shall: 

(1) Ensure that the planning goals and 

objectives are consistent with the study 

authority. 

(2) Clearly identify the purpose of the 

study, the role of the Federal 

Government, as well as the views of the 

non-Federal interest (if any), 

cooperating agencies, Tribes, various 

stakeholders, and the public. 

(3) Describe the problems and 

opportunities to which the agency is 

responding in a manner that will not 

foreclose consideration of the full range 

of reasonable alternatives, including 

options that the non-Federal sponsor 

may not support. 

(4) Define the study area, including 

activities within the watershed that are 

relevant to the proposed project and 

areas where impacts should be avoided. 

(5) Describe the plans for stakeholder 

involvement. 

(6) Prepare a summary of the planning 

objectives and constraints to be used in 

the analysis of the Federal investment. 

This summary should include a 

discussion of stakeholder, partner, and 

public input. 

(7) Include a discussion of the social 

and cultural context of the region and 

resources. 

(g) Inventory existing resources and 

forecast future conditions. A summary 

of the specific economic, 

environmental, and social setting within 

the study area shall cover the condition 

and functional relationships of affected 

resources; their development potential 

and possible conflicts in producing 

affected ecosystem services; and the 

local situation with respect to 

investment, climate, markets, affected 

communities, and basic economic 

productivity. 

(1) The phrase ‘‘forecast future 

conditions’’ generally relates to the 

identification of impacts associated with 

the alternatives, including the No 

Action alternative. Future conditions 

should be assessed and analyzed as part 

of the evaluation process, and the best 

available data and forecast should be 

used to complete an analysis of these 

uncertain conditions. 

(2) This exercise of identifying 

existing resources and forecasting future 

conditions will quantify, to the extent 

practicable, relevant water and related 

resource conditions as they currently 

exist within the study area, and forecast 

future conditions over the period of 

analysis. This would also include 

resources and conditions regarding the 

economic, environmental, and social 

aspects within the study area, as well as 

ecosystem services and climate-related 

scenarios. The existing resources and 

future conditions will be established 

using generally accepted sources that 

are national, State, or regional in scope, 

such as from peer-reviewed sources or 

sources which are governmentproduced. 

(3) The ‘‘without-project condition’’ is 

the most likely condition expected to 

exist in the future over the period of 

analysis in the absence of a Federal 

investment by the Corps (through the 

proposed Corps project, action, or 

program that is under consideration), 

given current laws, policies, projects 

under construction, and any existing 

resources/conditions. It considers 

expected actions that may be executed 

by others, including potential future 

land use conditions, and shall consider 

effects of climate change using multiple 

scenario analyses. 

(4) The ‘‘with-project condition’’ is 

the most likely condition expected to 

exist in the future, over the period of 

analysis, with a specific Corps project or 

program in place. It considers expected 

actions that may be executed by others, 

including potential future land use 

conditions, and shall consider effects of 

climate change using multiple scenario 

analyses. 

(5) To ensure that the appropriate 

criteria and problems are incorporated 

into the analytical framework, a 

summary of the process used to define 

the relevant existing conditions and 

foreseeable future conditions shall be 

prepared and made available to the 

public and shared with stakeholders. 

(h) Formulate alternatives. The 

primary goal of an alternative is to 

address a water resources challenge, 

consistent with the Federal Objective 

and Guiding Principles. The primary 

function of an alternative must be to 

alleviate unsatisfactory conditions or 

address a problem or opportunity that 

exists or will exist in the future without 

the proposed Federal investment that is 

under consideration. Alternatives 

should address the defined water 

resources challenge that is the subject of 

the analysis, and may achieve multiple 

purposes. Alternative formulations 

should focus on solutions that are 

feasible and meet the planning 

objectives of the study, based on the 

most likely future conditions expected 

with and without implementation of an 

alternative. The viability of an 

alternative should be determined 

through an evaluation of its 

acceptability, efficiency, effectiveness, 

and completeness, as required in the 

PR&G. The period of analysis should be 

the same for each alternative and 

sufficient to encompass the lifespan and 

significant long-term impacts of the 

project. In addition, alternatives may 

also include actions which are beyond 

the missions of the Corps where others 

may help provide solutions to the 

identified problem and meet the goals of 

the PR&G. However, such alternatives 

shall identify the relevant parties with 

requisite responsibility for those actions 

beyond Corps missions (such as other 

Federal agencies and non-Federal 

partners), their authority for that action, 

the interrelation between that action 

and the recommended Corps project, 

action, or program and appropriate 

sequencing of implementation. For 

Corps investments, the Corps will be the 

designated lead for completing PR&G 

analysis. 

(1) Alternatives are to be developed in 

a systematic manner that ensures that 

the Corps has identified and considered 

the full range of reasonable alternatives. 

A range of potential alternatives should 

be initially investigated reflecting a 

range of scales and measures, and as 

alternatives are refined, some would be 

screened out for reasons such as having 

excessive cost or unavoidable impacts, 

not sufficiently addressing the 

identified problem or opportunity, or 

other factors. The study report should 

include some analysis of the eliminated 

alternatives and reasons for their 

elimination. The plans that are retained 

for additional analysis will comprise the 

range of reasonable alternatives required 

for the NEPA analysis. Section 234.8 

describes the alternatives required in 

the final array. 

(2) Consideration of nonstructural 

approaches and nature-based solutions 

that meet the planning objectives shall 

be an integral part of the development 

and evaluation of Federal investments 

in water resources. 

(3) Each alternative formulated for the 

PR&G analysis should align with the 

alternatives evaluated in the 

corresponding NEPA document. 

(4) The Corps should formulate the 

alternatives based on an incremental 

analysis of their benefits and costs to 

society. The economic, environmental, 

and social effects of a water resources 


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development project are interrelated. In 

formulating alternatives to address the 

identified water resources problem or 

opportunity, the Corps shall consider 

each of these effects and seek to 

maximize net public benefits. 

§ 234.7 Evaluation framework. 

(a) General. To inform the overall 

decision-making process, this section 

describes the common framework and 

general requirements to be used by the 

Corps in evaluating and ensuring full 

consideration of the social, 

environmental, and economic benefits 

and costs to society of any separable 

elements and potential alternatives for 

Federal investment. This will include 

their performance with respect to the 

Guiding Principles and their 

contributions to the Federal Objective. 

Any key assumptions that affect the 

analysis of alternatives shall be clearly 

described in the study. 

(b) Economic, environmental, and 

social effects. (1) The Corps’ analytical 

framework for evaluating Federal 

investments should focus on the key 

economic, environmental, and social 

effects that are relevant to the 

investment decision. Typical NEPA 

analyses emphasize environmental 

effects and benefits, including 

ecosystem services, and these should 

also be used as a core part of water 

resources alternatives analysis. A 

benefit-cost analysis would be 

conducted for each alternative. 

Ecosystem services are an important 

benefit-cost category that should be 

included in the benefit-cost analysis. 

(2) In addition, the scale of the 

analysis can be adjusted for a given 

study. While all analyses should share 

common elements, how these elements 

are achieved can depend on the 

identified problem or opportunity. It is 

important to establish a consistent 

analytic approach for each study. When 

implementing its ASPs, the Corps will 

consider and, where it deems 

appropriate, align with the latest 

Federal methods and guidance (for 

example, updated OMB Circulars and 

applicable interagency guidance) to 

ensure that the analytical framework 

accounts for all significant economic, 

environmental, and social costs and 

benefits, including ecosystem services. 

Where possible, monetization enables 

the incorporation of the values placed 

on the benefits and costs evaluated and 

provides a way to evaluate trade-offs in 

common analytical units (dollars). OMB 

Circulars A–4 and A–94 provide 

guidance on appropriate use of 

monetization methods. The Corps 

anticipates that it will not be possible to 

monetize all social and environmental 

costs and benefits of the alternatives. In 

these cases, the Corps should quantify 

the social and environmental costs and 

benefits and when neither monetization 

nor quantification is possible, the Corps 

should qualitatively describe the social 

and environmental costs and benefits in 

sufficient detail to allow differentiation 

across alternatives. Relevant monetary, 

quantitative, and descriptive 

information will be fully assessed and 

considered in the analysis. 

(c) Best available actionable science 

and commensurate level of detail. (1) 

Analysis to support the evaluation of 

alternatives shall use the best available 

actionable science, to include 

Indigenous Knowledge, data, analytical 

techniques, procedures, models, and 

tools in ecology, hydrology, economics, 

engineering, biology, and other 

disciplines to the extent that sufficient 

funding is available, and to the extent 

such information is relevant and 

appropriate to the subject investment. 

To the extent feasible, the effects of the 

alternatives should be monetized. 

Effects will be monetized, quantified, or 

described, in that order. 

(2) The level of detail required to 

support alternatives analysis may vary 

but should be sufficient to inform the 

decision-making process efficiently and 

effectively. The level of detail, scope, 

and complexity of analyses should be 

commensurate with the scale, impacts, 

costs, scientific complexities, 

uncertainties, risk, and other aspects 

(such as public concern) inherent in 

potential decisions. 

(d) Risk and uncertainty. When 

analyzing potential Federal water 

resources investments, the Corps shall 

identify, describe, and quantify (if 

feasible) areas of risk and uncertainty 

and consider them in decision-making. 

Risks and uncertainties shall be 

identified and described in a manner 

that is clear and understandable to the 

public and decision-makers. This 

includes describing the nature, 

likelihood, and magnitude of risks, as 

well as the uncertainties associated with 

key supporting data, projections, and 

evaluations of competing alternatives. 

Risk and uncertainty are inherent in 

economic analyses as well as the 

analysis of physical and biological 

factors, no matter the technique or 

methodology employed. The study 

should estimate the extent to which the 

outcomes from an investment may vary 

over time from the estimates provided 

in the study, both in the short-term and 

in the less predictable future, due to 

uncertainty. Knowledge of risk and 

uncertainty and the degree of reliability 

of the estimated consequences will 

better inform decision-making. When 

there are considerable uncertainties 

concerning the ability of an alternative 

to function as desired (such as 

producing the desired outputs and/or 

the general acceptability of the 

alternative) the option of pursuing 

improved data or models should be 

considered. Reducing risk and 

uncertainty may involve increased costs 

or loss of benefits. The advantages and 

costs of reducing risk and uncertainty 

should be explicitly considered in 

formulating alternatives and the overall 

decision-making process. 

(e) Adaptive management. Adaptive 

management measures shall be clearly 

identified and evaluated as part of 

alternatives to the extent that such 

measures are commensurate with the 

significance of the proposed activity and 

available resources. Adaptive 

management measures are particularly 

useful when making management 

choices in the face of uncertainty, such 

as when detailed information and tools 

are not readily available. 

(f) Climate change. Conditions 

resulting from a changing climate shall 

be identified and accounted for in all 

stages of the planning process, and 

uncertainties associated with climate 

change will be identified and described. 

Analysis of climate change impacts 

shall reflect the best available actionable 

science and will leverage region-specific 

information from Federal, Tribal, State, 

local, and non-governmental partners. 

The Corps shall incorporate a climateinformed science approach considering 

impacts such as inland and coastal 

climate change impacts on flood and 

drought hazards using the most up-todate science, policies, and tools 

available. The Corps shall also ensure 

climate resilience and adaptation are 

incorporated and considered throughout 

the planning process and across 

alternatives, including a discussion on 

how climate, drought, and ecosystem 

resilience may intersect for that 

particular action and can contribute to 

the economic vitality and water 

resources resilience of the Nation. The 

changing climate should inform the 

understanding of water resources needs 

and how those needs can potentially be 

addressed. 

(g) Water availability, water uses, and 

resilience. The consideration of multiple 

uses, competing demands, and the 

potential future uses of the water 

resources shall be taken into account 

when formulating and evaluating 

solutions to a water resources problem 

or challenge. Water availability and 

efficient use of water shall be 

considered in designing the alternatives, 

as shall resilience, when applicable to 

the purpose of the study. The analysis 


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shall consider water availability, water 

uses, and resilience over a range of 

conditions, from too little water in 

drought and multiple-use scenarios, to 

too much water in flood scenarios. 

(h) Nonstructural and nature-based 

solutions. Nonstructural measures alter 

the use of existing infrastructure or 

human activities to generally improve, 

avoid, or minimize adverse changes to 

existing hydrologic, geomorphic, and 

ecological processes. Nonstructural 

measures may be combined with fewer 

or smaller traditional structural project 

components to produce a complete 

alternative plan or may be used instead 

of a structural project. In the 

development of alternatives, the use of 

natural systems, ecosystem processes, 

and nature-based solutions shall be 

considered. Full consideration and 

reporting on nonstructural and naturebased alternative actions shall be an 

integral part of the evaluation of Federal 

water resources investment alternatives, 

and a full nonstructural in addition to 

a full nature-based alternative will be 

included in the final array of 

alternatives. Nonstructural and naturebased aspects should also be included 

in the other alternatives in the final 

array when appropriate. 

(i) Tribal treaty rights. Each of the 

alternatives considered for a water 

resources investment must be consistent 

with the protection of Tribal treaty 

rights. Alternatives that impact Tribal 

treaty and water rights should be 

screened out as soon as the Corps 

becomes aware of such impacts, and the 

study will document why the 

alternatives have been screened. 

(j) State water law. Alternatives for 

water resources investments must be 

consistent with applicable State laws, 

including water rights and decrees, to 

the extent that these do not conflict with 

Federal laws and regulations. Analyses 

should identify legal constraints that 

preclude selection of an otherwise 

viable alternative. 

(k) International obligations. 

Alternatives for water resources 

investments must be consistent with 

meeting treaty and other international 

obligations. Analyses should identify 

international obligations that preclude 

selection of an otherwise viable 

alternative. 

(l) Period of analysis. The period of 

analysis for the study shall be 

documented with an appropriate 

justification, and used to evaluate each 

alternative. 

§ 234.8 Final array of alternatives. 

(a) Except as provided in paragraphs 

(c) and (f) of this section, the final array 

of alternatives shall include, at a 

minimum, the following six 

alternatives: 

(1) A No Action alternative. 

(2) A nonstructural alternative: An 

alternative that can effectively address 

the problem through the feasible use of 

nonstructural approaches. 

(3) A nature-based solution 

alternative: An alternative that can 

effectively address the problem through 

the feasible use of nature-based 

solutions (including natural systems 

and ecosystem processes). 

(4) An environmentally preferred 

alternative. 

(5) An alternative that seeks to 

maximize net public benefits to society. 

In developing this alternative, the Corps 

shall not consider regional economic 

development effects. 

(6) An alternative that is locally 

preferred. If this alternative differs from 

the net public benefits alternative, it 

will be required to have a comparable 

level of detail and analyzed using the 

same analytical framework as the net 

public benefits alternative. 

(b) The nonstructural and naturebased alternatives do not preclude 

consideration of these elements in other 

alternatives. Nonstructural measures 

and nature-based solutions shall be 

considered as components of the other 

alternatives in the final array, 

essentially providing an integrated or 

‘‘hybrid’’ of gray (hard) infrastructure 

with these other measures. 

(c) The same alternative may be 

identified as more than one of these 

required alternatives. 

(d) Mitigation of unavoidable adverse 

effects associated with each alternative 

must be included in the alternative and 

in the analyses. 

(e) If an alternative requires changes 

in existing laws, regulations, or policies, 

those changes must be clearly identified 

and explained. 

(f) If one or more of the required 

alternatives is not included because the 

Corps was not able to identify a 

potential solution that is feasible and 

consistent with the purpose of the 

study, the study must document that 

decision. 

(g) The discussion of the final array of 

alternatives should include the primary 

purpose of the analysis; the geographic 

size of the study area; the types of 

impacts; the number of people 

potentially affected and anticipated 

degree of impact; environmental justice 

considerations; the size and location of 

communities potentially affected 

including the presence of Federallyrecognized Tribes or Tribal members; 

and the type of data and information 

available from Indigenous Knowledge, 

collaboration, public involvement, and 

previous studies. 

§ 234.9 Evaluate effects of alternatives. 

(a) Analysis of alternatives. For the 

final array of alternatives, the analysis 

should describe, evaluate, and estimate 

the key social, environmental, and 

economic effects, and assess the 

contributions of each alternative to the 

Guiding Principles. The analysis should 

identify any impacts to Tribal treaty 

rights which were unknown earlier in 

the planning process and which prevent 

the selection of an alternative. 

(b) Evaluation procedures. In addition 

to assessing how alternatives perform 

with respect to the Guiding Principles, 

the evaluation procedures shall 

incorporate methods to evaluate: 

(1) How public benefits of an 

alternative compare to its costs, 

including full consideration of all 

important social, environmental, and 

economic benefits and costs. 

(2) How alternatives perform against 

the objectives of the study. 

(3) How alternatives perform against 

the four formulation criteria: 

completeness, effectiveness, efficiency, 

and acceptability. 

(c) Consideration of benefits and 

costs. The report should fully account 

for the effects to society of alternative 

plans and their respective contributions 

to the Federal Objective, relative to the 

No Action alternative. The analysis will 

evaluate the economic benefits and 

costs, environmental benefits and costs, 

and social benefits and costs of 

alternatives, regardless of how they are 

included (monetized, quantified, or 

described). The consideration of 

benefits to federally recognized Tribes 

will be done in direct consultation with 

the respective Tribal Nation and will 

supplement the public benefit analysis. 

To the extent practicable, such costs and 

benefits must be quantified in a 

scientifically valid and acceptable way, 

and such quantified costs shall be 

monetized where practicable. When 

monetization or quantification is not 

possible, costs and benefits must be 

described in sufficient detail to enable 

the decision-maker to understand the 

importance and magnitude of potential 

changes. For monetized costs and 

benefits, the present value cost of each 

alternative must be compared to the 

present value of the benefit to the 

public. For quantified but not 

monetized benefits and costs, the Corps 

would present the information on an 

average annual basis, and would also 

describe how the benefits and costs 

would accrue over the period of 

analysis. For qualitatively described 

benefits and costs, expectations would 


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be described across the period of 

analysis. The effects of alternative plans 

are displayed in terms of costs and 

benefits. 

§ 234.10 Compare alternatives. 

(a) Comparing alternatives. 

Alternatives shall be compared to each 

other and to the No Action alternative 

and shall include a comparison of the 

ability of the alternatives to perform 

under changing conditions, including 

climate change. The alternative (or 

alternatives) that reasonably meets the 

Federal Objective and maximizes net 

public benefits shall be identified. In 

addition, alternatives may be evaluated 

separately with respect to other 

considerations, including distributional 

effects. These considerations may 

include: 

(1) Temporal factors, since certain 

effects may occur at different points in 

time. 

(2) Spatial factors, since certain costs, 

benefits, and transfers may accrue to 

different regions. Regional-scale 

analyses may be useful to inform 

regional-level economic development 

objectives. It is important to note that 

such regional analyses, while useful, are 

completely separate from the 

calculation of net public benefits 

described in § 234.4(c). 

(3) Beneficiaries. Tribal Nations and 

stakeholders (including other 

governmental agencies and 

communities with environmental justice 

concerns) may indicate different 

tradeoffs among the various benefits and 

costs of a Federal action. Tribal reserved 

rights, including treaty-protected 

resources and habitats, are not benefits 

to the Tribal Nation, rather, they are 

guaranteed by such treaties. Robust 

engagement at this stage shall focus on 

eliciting preferences among the 

alternatives, their component elements, 

and their effects. When calculating net 

benefits, these distributional effects can 

be examined using techniques like 

income weighting. 

(b) Tradeoffs. Tradeoffs among 

potential alternatives will be assessed 

and described throughout the decisionmaking process and in a manner that 

informs decision-making. Based on the 

available analytical information, the 

Corps would use its professional 

judgment in making its 

recommendations on decisions among 

tradeoffs. The tradeoff displays shall be 

understandable, transparent, and 

constructed in a generally consistent 

fashion for all analyses. The analysis 

shall include a combination of both 

tables and explanatory materials to help 

inform a decision. Displays shall 

facilitate the evaluation and comparison 

of alternatives necessary to make the 

following determination and reflect the 

following: 

(1) The effectiveness of alternatives in 

solving the water resources problem and 

taking advantage of the opportunities 

identified in the planning process. 

(2) What must be given up in 

monetary and nonmonetary terms to 

enjoy the benefits of the various 

alternatives, relative to the baseline. 

(3) The differences among 

alternatives. 

(c) Information for inclusion in the 

analysis. To promote consistency across 

the Corps, the following tables and 

information shall be included in the 

analysis and documentation prepared 

for a decision process: 

(1) Criteria. The analysis must 

explicitly address the extent to which 

an alternative achieves each of the 

following criteria: completeness, 

effectiveness, efficiency, and 

acceptability. This evaluation must be 

systematic and can include both 

quantitative and qualitative 

components. 

(2) Effects matrix. A matrix 

summarizing the tradeoffs, relative to 

the baseline, effect-by-effect must be 

included in the integrated report. 

(3) Additional trade-off displays. 

Additional text and tables should 

display other important trade-offs, such 

as trade-offs along temporal, spatial, and 

beneficiary dimensions. 

(4) Summary table. A summary table 

displaying the economic, 

environmental, and social costs and 

benefits as measured (monetized, 

quantified, quantitative) for each 

alternative. In addition, the summary 

table will display the economic, 

environmental, and social costs and 

benefits which were derived 

qualitatively. The summary table will 

also separately include information on 

the level of risk or uncertainty for each 

alternative. 

(5) Achievement of objectives table. A 

table indicating the extent to which the 

Guiding Principles have been achieved. 

§ 234.11 Select the recommended plan. 

(a) Recommended plan. (1) Plan 

selection will require decision-makers 

to assess tradeoffs and to consider the 

extent of both monetized and nonmonetized effects. The basis for 

selection of the recommended plan 

should be fully reported and 

documented in a transparent manner, 

including the criteria and 

considerations used. This section must 

provide a discussion about the extent to 

which the alternatives achieve the 

Federal Objective and maximize net 

public benefits to society. The report 

must include an explanation of the 

assumptions in the evaluation of 

monetized and non-monetized benefits 

and costs. This section will include a 

summary of elicited Tribal Nation and 

stakeholder perspectives on the 

alternatives and their effects. 

(2) The Corps should recommend: 

(i) Authorization of an alternative 

project, program, or plan; 

(ii) Implementation of an alternative 

under existing law; 

(iii) Implementation of a project, 

program or plan by others; or 

(iv) No action. 

(3) In its studies, the Corps shall 

analyze, evaluate, fully consider, and 

justify each separable element of the 

proposed investment independently of 

the other separable elements, based on 

its social, environmental, and economic 

benefits and costs to society. 

(4) The Corps should seek to meet 

water resources objectives and 

maximize net public benefits, relative to 

public costs. It is possible that more 

than one alternative might reasonably 

and approximately meet these 

conditions. ‘‘Net public benefits’’ 

implies that the anticipated benefits will 

be presented relative to the costs 

associated with the accrual of those 

benefits. Net public benefits can include 

both quantified and non-quantified 

benefits. Any recommendation will 

clearly delineate the Federal water 

resources project(s) or actions being 

recommended, including any condition 

precedent for construction. 

(b) Exceptions. A recommended plan 

for a Federal water resources investment 

that does not maximize net public 

benefits requires an exception from the 

Assistant Secretary of the Army for Civil 

Works. Requests for exception should 

describe the project or activity, the 

rationale for the exception, and present 

relevant data and analysis to support the 

request. 

[FR Doc. 2024–29652 Filed 12–18–24; 8:45 am] 

BILLING CODE 3720–58–P 


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