Most of our past Blog posts have been focused on current events, analysis of new trends, and breaking news. Today, we are sharing some news that is eight months old but that offers a potential and promising path for getting things done. Some of you may already know of a not-very publicized policy memo distributed by James Dalton, USACE’s Director of Civil Works. This policy memo takes a creative approach in giving direction to MSCs (“major subordinate commands,” or “divisions” in plain English) and districts. That approach is: If you can’t get done what you need to get done, and the reason is a policy that we at USACE have adopted, then we will allow you to waive the policy so long as you have a good reason. This, is a good idea!
So let’s start with the policy. Issued on January 24, 2019, this policy directive ONLY APPLIES to the 2018 Emergency Supplemental Program. So, if you are partnering with USACE on a project that is funded by the 2018 supplemental, then this could have a big impact on project implementation. And if your project is not funded by the 2018 supplemental, then this policy has no impact on you at all, Unless . . . . well, more about that below.
The policy memo’s stated purpose is to “empower [USACE’s] highly trained and experienced MSC/District teams to use their Technical Expertise and Professional Judgment to make and document authoritative decisions regarding USACE policy and guidance which will enhance delivery of the 2018 Emergency Supplemental within the spirit and intent of USACE policy and guidance.” In other words, follow policy and guidance when it makes sense, but when a technical reading of the policy is getting in the way, or a procedure is really long and doesn’t add value, have the strength and wisdom to recognize that not every circumstance can be correctly captured by generic policy and guidance. We applaud this move and find it completely consistent with the vision that James Dalton has been sharing since he became Director of Civil Works.
Of course, in creating the flexibility to waive some policies, Mr. Dalton and USACE recognize that that some things cannot be waived, such as:
- The law
- Procedures adopted under the Administrative Procedures Act as official rule making (which is also “the law”)
- Policies adopted by “higher authorities” such as the Department of Defense, Office of Management and Budget, etc
- Anything that will reduce the quality and performance of the project over its authorized lifetime
- Anything that will materially increase the probability of severity of loss of life.
And in traditional USACE form, a decision to waive a policy requires compliance with a policy on how it is done (see pages 2 through 5 of the memo and the checklist and form on pages 7 and 8). But despite the needed guidance on how to evaluate requests and how to get things done, this policy memo offers districts and divisions some very effective tools to ensure that projects can be implemented in sensible ways.
So, as noted above, this only applies to the 2018 supplemental. And in light of the language in the supplemental appropriation that funds should be expended within five years, it makes complete sense that this policy would be applied to the supplemental. But we think the more interesting question is whether this policy memo might be a glimpse into how USACE may operate its entire Civil Works program in the future. Whether or not an appropriation is tied to urgent need or not, this sensible approach to implementing guidance and policy is something that USACE should consider adopting mission-wide. Bravo!