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In late June, President Trump unveiled his administration’s plan to reorganize the federal government.  The proposed shakeup is entitled “Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations.”  On page 15 of the proposal you will find:  “Move the Army Corps of Engineers (Corps) Civil Works out of the Department of Defense (DOD) to the Department of Transportation (DOT) and Department of the Interior (DOI).”  This proposal has left many people asking questions, such as how would it work?  Would it be better?  Does Congress need to approve it?  And how is this different than every other proposal made in the past?  Indeed, during a recent Senate hearing, Senators voiced inquiries about the Department of Defense’s views:

  • “I also would like the Department of Defense’s view on picking up the Corps of Engineers and dropping it in various parts of the United States government.” Sen. Angus King, (Maine-Independent).
  • “Where is DoD on some of the Corps issues?”  Sen. Lisa Murkowski (R-Alaska).

Well, now we know what the Department of Defense thinks, because the Chief of Engineers has issued a memorandum sharing the view of the Secretary of Defense which is making its way through the internet from multiple sources.  The memo takes the topic seriously, lays out some steps for how the subject will be approached, and encourages the existing team to focus on the mission and not get distracted:

> TEAMMATES:
>
>    As all of you may be aware, the Administration has outlined a number of reforms within the US Government, including the movement of our Civil Works program outside of USACE.
>
>    I want to update you on the latest activity regarding this effort.  Some of you may have seen by now… the Secretary of Defense on July 30, 2018, approved a Secretary of the Army memorandum identifying SPECIFIC ACTIONS the Army will take in support of the Administration’s proposed reorganization of USACE’s Civil Works Program. The memo states that the Army will:
>
>    * convene a team to commence planning for the reorganization,
>    * engage with the Departments of Interior and Transportation to prepare for the transfer of functions and responsibilities,
>    * work with OMB to ensure DOD equities are addressed in the final transfer order, and
>    * conduct an external review to assess how USACE can be more effective and efficient after the reorganization.
>
>    As with any proposed change of this type, new legislation will be required.
>
>    In accordance with the Secretary’s memorandum, we have begun assembling a team that will coordinate these actions for the U.S. Army and the Nation.  While these efforts are underway, I encourage you to remain FOCUSED on DELIVERING THE PROGRAM!  At the same time, we have identified over 100 initiatives we are taking to REVOLUTIONIZE the Corps, so we can be more effective and efficient.  We have a tremendous workload and it’s only through your disciplined attention to your work that we will succeed.  Each of you are an ESSENTIAL MEMBER of this team and a critical player in our ability to DELIVER INFRASTRUCTURE TO THE NATION and ENERGIZE the ECONOMY!  Thank you for all you do!
>
>                                    V/r LTG TODD T. SEMONITE
>
> LTG Todd T. Semonite
> 54th Chief of Engineers
> Commanding General, USACE
The Memo certainly comports to our understanding that legislation would be required.  The United State Code is replete with obligations of the Army Corps of Engineers that are assigned to the Secretary of Defense.  And of course, the Federal budget assigns money for this mission to USACE as well.
As to what a successful reorganization might look like?  Our money would be that the navigation mission would go to the Department of Transportation, in light of the link to transporting commerce.  Likewise, we would bet that dams would move to the Bureau of Reclamation within the Department of Interior, where that expertise lies.  Similarly, ecosystem restoration could move to Bureau of Land Management or the Fish and Wildlife Service within Interior.  But the levee portion of flood risk reduction doesn’t seem to have a logical home.  We will have to wait to see a more detailed proposal.
So will this happen?  We are not betting that it will happen in the short term.  But we think that the discussion can be good, requiring that we all sharpen our pencils on how USACE’s mission can continue to be made more efficient, no matter who is implementing it.
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.