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[It would seem silly to post this article without first acknowledging an elephant in the room:  We haven’t posted in 23 months.  Why, you might ask?  Is it because there is nothing going on in the flood world?  No.  Is it because we have retired to tropical islands?  No.  Is it because we got really busy, and this kept slipping to the bottom of the list?  No.  Well, actually, yes, that’s it.  Nothing dramatic or sinister.  Life just got in the way.  But we promise to be better about this going forward.]

This article is about money.  You see, the Federal government has a lot of money.  Even in an era of budget cutting, it still has a lot of money, and it chooses to spend that money on a whole bunch of different things.  And one category of things it spends its money on are the projects implemented by the U.S. Army Corps of Engineers (USACE).  Now as everyone knows, even though the Federal government has a lot of money, there are still many more things that the Federal government can fund.  Indeed, the last time I heard the statistic, there was approximately $60 billion worth of projects authorized for USACE construction that had not yet been funded.  When you have more things to spend money on than you have money to spend, you have to make some decisions.  So the Federal government needs a way to decide how to spend its money.  And that is what the Principles, Requirements, and Guidelines (PR&G) are all about.  The current version of the PR&Gs was released in 2009 (as required by the Water Resources Development Act of 2007 and finalized in 2013. 

Since March of 2013, USACE has wanted to develop agency-specific guidance on how to implement the PR&G, but also, for years, Congress has not funded its efforts to do so.  But now that is changing.  Under the leadership of the Assistant Secretary of the Army for Civil Works (ASA-CW), the office that oversees USACE, the Federal government will soon have that agency-specific guidance, which will be in the form of actual regulations.  These regulations will provide the framework for future decisions on how USACE will spend its money, whether for flood protection, ecosystem restoration, recreation, navigation, or any other project purpose.  Consistent with this Administration’s EJ40 initiative, the regulations will have a much heavier focus on environmental justice and Tribal consultation.  These new regulations will introduce new ways of thinking about spending decisions that will likely result in different elements being included in projects, at different scales, and at different locations, then in the past

USACE typically adopts much of its guidance as Engineering Circulars, a more informal, easier to adopt, and easier to change, form of guidance than regulations.  But there is a growing acknowledgment within the office of the ASA-CW that the guidance needs to be both durable and binding.  Durability is important because it offers more consistency than the ever-changing views of each successive administration (think about the ever-changing definition of waters of the U.S. under the Clean Water Act).  And binding is important because it is the way to make sure that large agencies, such as USACE, all operate under a single set of rules, rather than just doing it the way that someone learned it when they started.  Regulations use words like “shall” and can facilitate a culture shift.

The ASA-CW is working right now on draft regulations.  Once they are ready for the first level of external review, they will be transmitted to the Office of Management and Budget (“OMB”), an agency in the President’s Executive Office that reviews all proposed regulations for consistency with the Administration’s priorities.  This will likely happen in the next month or so.  Once blessed by OMB, a process that is supposed to take no longer than 90 days, notice of proposed rulemaking will be published in the Federal Register, creating an opportunity for the world to provide comments on the draft rule.  And that’s where you come in.

First, track rules that will be posted to the Federal Register and ask to be notified of all proposed rules that interest you.  You can use this link here.  That way, you will know when the proposed rules are published.  Second, read the proposed rule.  Read the preamble too.  The preamble offers lots of context on the relevant issues, why the rule reads as it does, and how it will be implemented.  Third, submit comments, because they really do matter.  Tell the agency what you like about the proposed rule, and what you don’t like about it.  Share a perspective the agency didn’t think of.  Raise an implementation issue that requires people to think a little longer and a little harder.  Also, don’t just comment on the proposed rule.  After you comment on the proposed rule, comment on the preamble too. Now, we will do our best to offer some observations on the proposed rule (and preamble, too) once it is out.  But you need to do your work too.  If you are reading this blog, it’s because flood protection is important to you.  And if it is important to you, then you should do your part to shape a very important rule that will affect how the Federal government invests billions of dollars every year.  We mean it.  And thank you.

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.