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On a recent visit to Washington, D.C. to work on client issues, I attended any number of meetings where we discussed Federal appropriations.  But before we get to an observation or two, here is a recap on the process for how Congress can choose to invest money into a flood risk management project with the U.S. Army Corps of Engineers:

  • First, Congress must authorize the project, typically through the Water Resources Development Act, periodic legislation used for Congress to choose projects that are eligible to receive funding.  Due to the earmark ban, such an authorization must occur as a result of an administration recommendation, typically a Chief’s Report that follows a Corps study.
  • Second, a project needs a “new construction start.”  This is like a mini-authorization for a project to be advanced from authorization to appropriations.  In the past few years, Congress has instructed the administration to award a certain number of new starts, and then the administration does so in a work plan.
  • Finally, after authorization and a new start, the project can receive appropriations.  Those appropriations can come via a project-specific appropriation (as a result of an administration budget request) or funds allocated by the Corps in the annual work plan from funds that are not project-specific allocations.

While I always think of a calendar as a linear thing, this funding process can actually be circular, as I was reminded when I saw this drawing on a white board during my most recent visit:

Here’s how it might work:

  • In a recent typical year, Congress can’t pass a budget by October 1, so it passes a continuing resolution that keeps funding flowing to the Federal government at the same levels as the previous year.  That continuing resolution, or CR, might be for two-three months.  For this year, it expires on December 9.
  • Let’s assume that Congress does adopt a final budget for Fiscal Year (FY) 18 (running from Oct 1, 2017-Sept 30, 2018) by December 9.  In that budget Congress will allocate some money for specific Corps projects, and also provide non project-specific funds, with a requirement that the Corps submit a work plan back to Congress in a short period, say 60 days.  That would make the work plan due by February 9.
  • Interestingly, mid-February is also when the administration releases its draft budget for the next fiscal year.  So, in this example, during the months of December and January the Corps (with oversight from the Assistant Secretary of the Army and the Office of Management and Budget) will be determining how to spend the non project-specific money given to the administration for FY 18 at the same time that it is also developing the proposal for how to spend money in FY 19 that needs to go to Congress.
  • And then, the process starts all over again with the Corps working on FY19 non project-specific money in the work plan, while proposing a budget for FY20.

Now any number of things can mess up this cycle.  For example, when the Trump administration came into office, it had very little time to develop a budget and a work plan, and Congress didn’t get around to passing a budget until well into 2017.  Or, Congress could pass a budget by October 1, in which case the budget and the work plan will not be issued at the same time.  But under any of these scenarios, it is a little bit like Groundhog Day, in that the same processes happen over and over, each year, requiring one to think about the calendar more as a circle, and less as a linear series of events.

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Photo of Scott L. Shapiro Scott L. Shapiro

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the…

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) throughout the Western United States.

With a special focus on massive flood protection improvement projects, Scott advises clients through regulatory, contractual, financing, and legislative challenges. Acting as general or special counsel, he regularly interacts with senior management at USACE (Headquarters, South Pacific Division, and Sacramento District), the California Department of Water Resources, and the Central Valley Flood Protection Board. He was named to the National Section 408 Task Force and has been invited to give testimony to the National Academies. Scott was instrumental in helping the first regional flood improvement agency that took a basin threatened by flood risk from less than 30-year level of protection to a level of protection approaching 200-year.

Having worked with FEMA on issues of floodplain mapping and levee accreditation for many years, Scott has developed collaborative environments in which he fosters win-win solutions for his clients. He is also currently serving as the lead counsel on a flood insurance rate map (FIRM) appeal and has drafted Federal legislation to modify the National Flood Insurance Program (NFIP) several times.

Scott is known throughout the region for his extensive litigation experience focusing on cases arising from levee failures. He has litigated levee failures resulting from underseepage, failed encroachments, and rodent burrows as well as briefing levee overtopping cases at the appellate level. Scott is one of the few attorneys with experience litigating flood cases on behalf of plaintiffs as well as defendant government entities.

Photo of Andrea P. Clark Andrea P. Clark

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea…

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea for her ability to explain in understandable terms the wide range of issues impacting them, including basic transparency laws (Brown Act and Public Records Act), public bidding and contracting, bond financing, the unique nature of joint powers authorities, and elections. She also regularly counsels clients on water transfers, Proposition 218 compliance, the California Environmental Quality Act, the National Environmental Policy Act, and financing strategies for major capital improvement projects.

With a special expertise in flood control and floodplain management, Andrea is regularly asked to speak on topics ranging from flood insurance to climate change and the future of flood control policy in California. Through her representation of clients in state flood policy and speaking engagements, she has forged strong relationships with key members of the flood control community in California.

Andrea also counsels private clients, including landowners and mutual water companies, on water supply matters, including proceedings before the State Water Resources Control Board, water rights determinations, and contractual disputes with Federal agencies.