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Our April 26, 2023 article noted that the Principles, Requirements, and Guidelines (PR&G) are about money. 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. One category of things it spends its money on is the projects implemented by the U.S. Army Corps of Engineers (USACE). 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 PR&G are all about. The current version of the PR&G was released in draft in 2009 (as required by the Water Resources Development Act of 2007 and finalized in 2013). Well, the Agency Specific Procedures (ASPs) released in draft this last month how USACE proposes to implement the PR&G.

The first thing to note is that the draft ASPs are out for a 60-day public notice period. Public comments are due on or before April 15, 2024 – so you still have time. You can find the draft ASPs in the Federal Register. The document is many pages long, and like all procedures that are to be adopted pursuant to the Administrative Procedures Act, the Federal Register notice tells you what the document does, tells you how to provide public comments, provides a section-by-section analysis, provides the draft procedures, and then ends with enough bureaucratic small print as to make your head spin. Rather than go through all that, we thought we would share some high-level thoughts on the draft in this article.  Our next article will get into some of the nitty-gritty.

But first, what would the ASPs apply to? Do they apply to 404 permitting? Section 408 permissions? Operation and maintenance of facilities? Well, by their own terms, they apply to plans, projects, or programs that are initiated after any final rule that may take effect. They would also be applied to plans, projects, or programs that have not yet issued a draft environmental impact statement or similar level of documentation on or before any final rule effective date. So, that’s plans, projects, or programs. If you have one of those, then pay attention.

The next question is how will USACE decide, under the ASPs, to make recommendations on future investments? Well, kind of like they have been doing. For example, the ASPs define the Federal objective as follows; “Federal water resources investments shall reflect national priorities, encourage economic development, and protect the environment. Federal investments should strive to maximize net public benefits.” But the old Principles and Guidelines from 1983 stated: “The Federal objective of water and related and land resources project planning is to contribute to national economic development consistent with protecting the Nation’s environment…” So, what is the big change here? Well, there are two: first, we need to make decisions consistent with “national priorities,” and second, now we don’t need to achieve maximizing net benefits, only to strive to maximize those benefits. Now before you send hate mail, those are actually two important differences. Think about it. It is important that we invest our Federal resources to maximize the financial benefits. But importantly, the ASPs now recognize that sometimes that is not the most important thing. And when might it not be the most important thing? Well, when required to reflect national priorities, priorities like minimizing loss of life, protecting disadvantaged communities, or restoring the environment, for example.

More specifically, the ASPs direct that USACE should seek to maximize sustainable economic development, avoid the unwise use of floodplains, and protect and restore natural systems. But more than just looking at sustainable economic development, USACE is to look at maximizing net “public benefits” to society. Are public benefits just economic? No they are not: “Public benefits encompass economic, environmental, and social goals, include monetized and un-monetized effects, and allow for the consideration of both quantified and unquantified effects. [USACE] shall take a comprehensive view in evaluating net public benefits.” And how should the analysis be performed? “In general, the level of analysis should be commensurate with the significance of the Federal investment in terms of dollar value and the potential environmental impacts.” So, lots of money or impacts equals a more detailed analysis, and less money or impacts equals a less detailed analysis.

In doing this analysis, the ASPs share six guiding principles that USACE should follow:

  • Environmental justice, referring to the just treatment of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability in Federal agency decision making.
  • Floodplains, referring to the need that all Federal investments in floodplains must be designed to ensure those floodplains meet some level of floodplain resilience.
  • Healthy and resilient ecosystems, referring to the need for alternatives to protect the existing functions of ecosystems and to restore the health of damaged ecosystems where feasible. 
  • Public safety, referring to the need for alternatives to strive to avoid, reduce, or mitigate significant risks to public safety, including both loss of life and injury and communicating residual risk.
  • Sustainable economic development, through the sustainable use and management of water resources ensuring overall water resource resilience.
  • A watershed approach, ensuring that the problems being addressed are analyzed on a watershed based level to facilitate a complete range of solutions.

Well, that’s enough for today. Tune back in next time as we dive a little deeper and get into the “evaluation framework” that USACE is supposed to use in evaluating potential alternatives for Federal investments for their performance with respect to the Guiding Principles listed above and their contributions to informing the overall decisionmaking process.

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.