Trump Executive Order Issued on Federal Flood Risk Management Standard and Regulatory Reform

August 15, 2017 was a busy day for the Trump Administration. While interacting with the press and other politicians regarding the protests and counter-protests in Charlottesville, Virginia, the White House was also issuing an Executive Order with potentially far-reaching effects on flood management.

The first action was a new Executive Order (not numbered as of release to the press) entitled “Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure.

  • This EO seeks to shorten the time for environmental reviews for infrastructure projects. Those projects are defined as projects “to develop the public and private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production and generation, including from fossil, renewable, nuclear, and hydro sources; electricity transmission; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; and other sectors as may be determined by the FPISC.”
  • Under the EO, the Office of Management and Budget (OMB) and the Council of Environmental Quality (CEQ) will develop tools and scoring that allow quarterly review and evaluation of the speed and efficiency at which Federal agencies are processing approvals for projects. The goal of this effort is for agencies to process environmental review and permits in around two years at most.
  • The core tool of the approach is called the “One Federal Decision.” Under it, “each major infrastructure project shall have a lead Federal agency, which shall be responsible for navigating the project through the Federal environmental review and authorization process. . . . With respect to the applicability of NEPA to a major infrastructure project, the Federal lead, cooperating, and participating agencies for each major infrastructure project shall all record any individual agency decision in one Record of Decision (ROD), which shall be coordinated by the lead Federal agency unless the project sponsor requests that agencies issue separate NEPA documents, the NEPA obligations of a cooperating or participating agency have already been satisfied, or the lead Federal agency determines that a single ROD would not best promote completion of the project’s environmental review and authorization process.”

The second action, which is related procedurally, but not substantively, is the repeal of Executive Order 13690.  Indeed, buried as section 6 of the new EO discussed above, is the following:

“Sec. 6.  Executive Order 13690 of January 30, 2015 (Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input), is revoked.”

For those of you who haven’t been tracking this EO, we have provided a number of blogs on it, including an overview, potential comments, concerns from Congress, and our thoughts on FEMA’s proposed regulations here and here. The question now, is whether the mere revocation of 13690 kills the beast. Presumably, each agency that has adopted regulations under the EO will now (or at some point in the future will) revoke those regulations. But the more interesting question is whether the EO has caused Federal employees to think differently about the original EO 11988 (which 13690 amended), such that a new and more robust Federal standard will exist even without 13690. In other words, will the spirit of 13690 live on, even without the force of law, but causing Federal employees to set a more robust standard for projects to be built with Federal funds?

Only time will tell the answer to this question, and we are sure not every agency will think alike. But this is a little bit like saying, don’t think about a pink elephant.  Once you say that, it is hard to not think about the elephant.

A Welcome Surprise From Congress

Today’s post features commentary from guest author Julie Minerva.

For lobbyists, reading through annual appropriations reports is like hunting for Easter eggs. Unlike appropriations bills which are slim and rather constrained documents, appropriations reports provide an opportunity for the House and Senate Appropriations Committees to communicate directly to federal agencies. Whether it be prescribing direction to an agency on a particular federal program, conveying the committee’s opinion on an agency’s action (or as the case often is, inaction), or holding back federal funds until an agency performs in accordance with the wishes of the committee, appropriations reports are both entertaining and insightful for Washington insiders.  Continue Reading

USACE Issues Guidance on Contributed Funds for Section 408 Review

Guidance

As many in the industry have learned recently, the FY 17 budget only included approximately $3 million nationwide for processing 33 U.S.C. Section 408 review. This is the Section under which the U.S. Army Corps of Engineers (USACE) claims jurisdiction to review and approve any alterations or encroachments to Federally authorized water resources facilities such as levees and channels. As a result, in the last few weeks the funds were all expended and, even after a $500,000 reprogramming, the USACE has only been able to fund a limited number of 408 reviews nationwide. In order to address this issue, and keep review moving, USACE just issued new guidance for a simpler form of funding USACE’s review. Continue Reading

James Dalton, Director of Civil Works at USACE, Offers Valuable Perspectives at Annual NAFSMA Conference

Process

One of the best ways to learn about the direction of national flood risk management is to attend the annual conference of the National Association of Flood and Stormwater Management Agencies (NAFSMA). The NAFSMA conference is an amazing meeting of decision-makers and thought-leaders from around the country, with important topics discussed at a plenary session-only conference. And one of my favorite sessions is where the Director of Civil Works for the U.S. Army Corps of Engineers has a chance to present. Following are some high-level thoughts shared by Mr. Dalton on his June 21 Memorandum that we highlighted yesterday:

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New Guidance from USACE Could Streamline Processes

Project EfficiencyA June 21, 2017 Memorandum issued by James Dalton, the U.S. Army Corps of Engineers Director of Civil Works, is designed to streamline a number of USACE processes, including:

  • Embracing risk-based decision-making.  While USACE has always been good at evaluating the risk of flooding from the present condition, or the future condition, it has not been good at evaluating whether you get better decisions from the delay associates with collecting more data.  Hopefully, this new direction will provide useful guidance in this area.
  • Determining what level of decision-making should be made at the different levels within USACE.
  • Better understanding the ways in which HQ can support, and where appropriate review, the actions of the Districts and Divisions (Major Subordinate Commands).
  • Evaluating and understanding the thousands of USACE policies so that there isn’t duplication and clarity exists about what policies should be followed.
  • Better performance to ensure the incorporation of social and environmental benefits into project formulations.

For more details, you can review the Memorandum here.

A Lobbyist’s Thoughts on Whether the Work Plan Foreshadows Trump’s View of the Corps’ Future Role

Sound the alarmToday’s post features commentary from guest author Julie Minerva.

I must admit, my right hand is numb from hitting the refresh button on my computer since about 11 am EST on Tuesday. That’s because this week the U.S. Army Corps of Engineers (Corps) was expected to release the Fiscal Year 2017 work plan. That finally happened around 6 pm EST on Wednesday (see previous blog post) and I’ve been combing through its pages ever since. The work plan is a companion document to the annual Energy & Water Appropriations bill and in the absence of earmarks, it’s how projects that didn’t make the cut for inclusion in the President’s budget get funded and also how new studies and new construction projects win coveted new start designations. Continue Reading

USACE Releases FY17 Work Plan; Media Book Released on FY18 Budget Proposal

Dollar Sign

With not too much extra waiting, the key documents were released by the U.S. Army Corps of Engineers. Instead of a long post, here are the key links to the documents you need:

  • At this link you can expand the FY17 Work Plan (at the bottom) to see Investigations, Construction, etc.
  • At this link you can see the press book on the FY18 Budget Proposal.
  • In terms of the six construction new starts in the FY 17 Work Plan, the plan heavily favored navigation projects (4 total), maintained the President’s environmental restoration request for Mud Mountain Dam (the only new start in any account recommended in the FY17 President’s Budget) and gave the only flood risk reduction slot to a project in the Majority Leader’s home state of Kentucky.

As always, we will continue to update you and make information available as we can.

Rumors of an Impending Work Plan to be Released with the Draft USACE Budget on May 23?? Well, Not Quite Yet.

Dollar Signs

Good day!  As many of you know, the U.S. Army Corps of Engineers had scheduled a press conference for Tuesday, May 23 to go over the President’s proposed USACE budget for FY18. The rumor had been that the FY17 Work Plan would be released at the same time. This would have been a pretty monumental accomplishment for USACE and the Assistant Secretary of the Army, especially since Congress did not mandate a workplace until mid-June. But, there is a certain logic to releasing both on the same day as the FY18 Budget should flow from the policy decisions made in the FY17 Work Plan.

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The FY2017 Budget Continues to Support Army Corps Activities

Washington DCOn Friday May 5 President Trump signed the budget deal that allows the Federal government to move from its one week continuing resolution to an adopted budget for the 2017 Fiscal Year.  The budget deal includes a healthy set of appropriations for flood risk reduction and puts the U.S. Army Corps of Engineers (USACE) on a path toward moving more projects ahead this year.  But the late passage of the budget (after 7 months of the 12 month fiscal year), will hamstring certain USACE actions.

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The Army Corps of Engineers, a Continuing Resolution Expiration, and a Congress That Hasn’t Yet Made Up Its Mind.

April 28

Today’s post features a collaboration between guest author Julie Minerva and Scott and Andrea.

After a grueling six-week legislative stretch, Members of Congress have returned home for a two-week district work period (weeks of April 10 and April 17).  Senators are scheduled to return to the Capitol on Monday, April 24th, while the House of Representatives will follow one day behind with a series of evening votes on Tuesday, April 25th.  This schedule gives the House just three full legislative days before the current continuing resolution (CR) expires at midnight on Friday, April 28th.  In preparation for this looming deadline Congress essentially has five options: Continue Reading

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