Army Corps of Engineers: Water Resource
Authorizations, Appropriations, and
Activities
Nicole T. Carter
Specialist in Natural Resources Policy
Charles V. Stern
Specialist in Natural Resources Policy
October 18, 2013January 29, 2014
Congressional Research Service
7-5700
www.crs.gov
R41243
Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
Summary
The U.S. Army Corps of Engineers undertakes activities to maintain navigable channels, reduce
flood and storm damage, and restore aquatic ecosystems. Congress directs the Corps through
authorizations, appropriations, and oversight of its studies, construction projects, and other
activities. This report summarizes congressional authorization and appropriations processes for
the Corps. It also discusses agency activities under general authorities.
Omnibus Authorization Legislation. Congress generally authorizes numerous Corps activities
and provides policy direction in an omnibus Corps authorization bill, typically called the Water
Resources Development Act (WRDA). The most recent WRDA was enacted in 2007 (P.L. 110114). WRDAs historically are omnibus bills including many provisions for site-specific activities.
How to construct a WRDA bill that complied with House rules related to a moratorium on
earmarks complicated WRDA consideration in the 112th Congress. The House is set to consider
the omnibus Corps authorization and policy bill, Both chambers have
developed and passed omnibus water resources legislation—H.R. 3080, the Water Resources
Reform and
Development Act (WRRDA).
The Senate passed WRDA 2013, S. 601, on May 15, 2013. S. 601 would authorize Corps
activities and modifications of existing authorizations that meet certain criteria; the bill includes
numerous other provisions as it attempts to address issues with the duration and cost of Corps
projects. The bill also would establish new procedures for using Harbor Maintenance Trust Fund
, and S. 601, WRDA 2013 (which was later substituted
by the Senate into H.R. 3080); conferees for H.R. 3080 were assigned in November 2013. Both
bills would authorize new Corps construction projects and some modifications of existing
authorizations. Both the bills also include numerous other provisions to address issues with the
duration and cost of Corps projects, and would establish new procedures for using Harbor
Maintenance Trust Fund monies, in an effort to expand spending above current levels.
Agency Appropriations. Federal funding for Corps civil works activities is provided in annual
Energy and Water Development appropriations acts or supplemental appropriations acts. Annual
Corps civil works appropriations have ranged from $4.5 billion to $5.5 billion in the last decade.
An increasing share of the agency’s appropriations is used for operations and maintenance.
Another trend has been increasing emergency supplemental appropriations. From 1987 to 2013,
Congress appropriated $32.2 billion in Corps supplemental funding. Of this funding, $30.8 billion
came through acts passed between 2003 and 2013. This funding was more than half of the Corps’
regular appropriations from 2003 through 2013 ($55 billion). In part because of competition for
funds and because Corps authorizations outpace appropriations, many authorized activities have
not received appropriations. There is a backlog of more than 1,000 authorized studies and
construction projects. In recent years, few new studies and new construction activities have been
in either the President’s budget request or enacted appropriations.
Standard Project Development. The standard process for a Corps project requires two separate
congressional authorizations—one for investigation and one for construction—as well as
appropriations. The investigation phase starts with Congress authorizing a study; if it is funded,
the Corps conducts an initial reconnaissance study followed by a more detailed feasibility study.
Congressional authorization for construction is based on the feasibility study. For most activities,
Congress requires a nonfederal sponsor to share some portion of study and construction costs.
These cost-sharing requirements vary by the type of project. For many project types (e.g., levees),
nonfederal sponsors are responsible for operation and maintenance once construction is complete.
Other Corps Activities and Authorities. Although the project development process just
described is standard, there are exceptions. Congress has granted the Corps some general
authorities to undertake some studies, small projects, technical assistance, and emergency actions
such as flood-fighting and, repair of damaged levees, and limited drought assistance. Additionally, the
Corps conducts emergency
response actions directed by the Federal Emergency Management
Agency.
Congressional Research Service
Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
Contents
Army Corps of Engineers ................................................................................................................ 1
Corps Authorizations ....................................................................................................................... 1
New Construction Projects Awaiting Authorization .................................................................. 2
Most Recent Developments in Omnibus Authorization Legislation ......................................... 32
House Action ....................................................................................................................... 3
Senate Action ...................................................................................................................... 54
Administration and Agency Action Action ...................................................................................................... 7... 6
Energy and Water Development Appropriations ............................................................................. 76
Standard Corps Project Delivery Process ........................................................................................ 98
Study Authority to Initiate a Corps Project.............................................................................. 10.. 9
Reconnaissance Study ............................................................................................................. 1110
Feasibility Study and Construction Authorization ................................................................... 1110
Cost Shares for Construction and Operation and Maintenance......................................... 1211
Engineering and Design .......................................................................................................... 1311
Changes After Construction Authorization.............................................................................. 1311
Study and Project Deauthorization .......................................................................................... 1412
Other Corps Activities and Authorities .......................................................................................... 1413
Small Projects Under Continuing Authorities Programs ......................................................... 1413
Technical Assistance ................................................................................................................ 15
Natural Disaster and Emergency Response Activities............................................................. 1715
National Response Framework Activities Under FEMA .................................................. 1715
Flood-Fighting and Emergency Response ........................................................................ 1716
Repair of Damaged Levees and Other Flood and Storm Projects ..................................... 1816
Environmental Infrastructure/Municipal Water and Wastewater Projects ............................... 19
Tables
Table 1. Corps Studies Awaiting Authorization or Nearing Completion and Transmittal to
Congress ....................................................................................................................................... 2
Table 2. Corps 17
Tables
Table 1. Corps Project Phases, Average Phase Duration If Fully Funded, and Federal
Cost ............................................................................................................................................. 10.. 9
Table 32. Standard Cost-Shares for Construction and Operation of New Corps Projects ............... 12
Table 43. Select Corps Continuing Authorities Programs (CAP) for Small Projects ...................... 1614
Table 54. Corps Technical Assistance Authorities ........................................................................... 1715
Appendixes
Appendix. Evolution of the Army Corps Civil Works Mission ..................................................... 2019
Contacts
Author Contact Information........................................................................................................... 2221
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
Army Corps of Engineers
The U.S. Army Corps of Engineers is an agency in the Department of Defense with both military
and civil works responsibilities. Under its civil works program, it plans, builds, operates, and
maintains a wide range of water resource facilities. Its civil works responsibilities are principally
to support navigation, reduce flood and storm damage, and protect and restore aquatic
ecosystems.1 The agency attracts congressional attention because its projects can have significant
local and regional economic benefits and environmental effects. The civil works program is led
by a civilian Assistant Secretary of the Army for Civil Works. A military Chief of Engineers
oversees the Corps’ civil and military operations and reports on civil works matters to the
Assistant Secretary for Civil Works. A Director of Civil Works reports to the Chief of Engineers.
The Corps’ civil works responsibilities are organized under eight divisions that are further divided
into 38 districts.2
This report provides an overview of the Corps civil works program, including congressional
authorization and appropriations. It reflects consideration of the Water Resources Development
Act (WRDA) of 2013 in the Senate (S. 601) and the related Water Resources Reform and
Development Act (WRRDA) in the House (H.R. 3080) during the 113th Congress. The report also
covers the standard project development process for Corps projects and other Corps activities and
authorities. For more on the financial challenges facing the Corps, see CRS Report R41961, Army
Corps Fiscal Challenges: Frequently Asked Questions, by Nicole T. Carter and Charles V. Stern.
Corps Authorizations
The Corps must be authorized to undertake an activity; the authorization can be project-specific,
programmatic, or general.3 While necessary, authorizations are usually insufficient for a Corps
study or construction project to proceed; action on an authorization requires funding.
In recent decades, Congress has legislated on most Corps authorizations in omnibus Water
Resources Development Acts.4 Authorizations at times have appeared in appropriations or
supplemental appropriations legislation, especially in years when a WRDA is not enacted. If
authorizations are included in an appropriations bill, they could be subject to a point of order on
the floor for being non-germane.
1
Other Corps responsibilities include flood emergency and natural disaster response, such as flood-fighting, repair to
damaged levees, and emergency water supply assistance. Congress also has authorized Corps participation in select
environmental infrastructure projects (e.g., municipal water and wastewater treatment systems) and other nontraditional
activities. The Appendix provides more on the evolution of Corps civil works missions and authorities.
2
A division map and district links are available at http://www.usace.army.mil/about/Pages/Locations.asp.
3
While most Corps authorizations are in legislation, many studies are undertaken under other authorities. Authorizing
committees can authorize a study to reexamine a geographic area previously studied by the Corps for a similar purpose;
this authority derives from §4 of the Rivers and Harbors Act of 1913 (37 Stat. 801, 33 U.S.C. §542). Similarly, some
studies reviewing operations of completed projects proceed under general study authorizations without congressional
action; this is pursuant to §216 of the Flood Control Act of 1970 (P.L. 91-611, 33 U.S.C. §549a).
4
WRDAs are distinguished from each other by referencing the year of enactment; that is, WRDA 1986 refers to the act
passed in 1986. The authorizing committee generally develops a bill for introduction by the chairperson; alternatively,
the Administration can propose a bill for congressional consideration. Once a committee of jurisdiction—the House
Transportation and Infrastructure Committee or the Senate Environment and Public Works Committee—decides to
consider a WRDA or similar legislation, Members of Congress often may request inclusion of particular provisions. If
the Administration proposes a WRDA, Congress generally receives the proposal at the same time as the President’s
budget. More than a decade has passed since the last Administration-proposed WRDA bill.
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
WRDAs generally authorize Corps studies, projects, and programs and establish policies for
Corps civil works activities (e.g., nonfederal cost-share requirements). A WRDA is not a
reauthorization bill, but an authorization bill. That is, WRDAs generally authorize new activities
which are added to the pool of existing authorized activities.5 Most project-specific authorizations
in WRDAs fall into three general categories: project studies, construction projects, and
modifications to existing project authorizations.
WRDAs do not appropriate funds for activities; project funding is provided typically through the
annual appropriations process for the agency. That is, congressional authorizations make certain
projects and activities eligible for receiving federal funding. While use of monies from trust funds
associated with Corps activities generally requires congressional appropriations action (i.e., the
funds are on-budget), a WRDA may be a legislative vehicle for altering trust fund collections and
disbursement policies and procedures.
New Construction Projects Awaiting Authorization
Although WRDAs consists of many elements, a common prominent feature is authorizing studied
activities for construction. The universe of studied activities awaiting congressional authorization
generally is increasing as additional reports are completed and transmitted from the
Administration to Congress. The Corps has roughly 200 active feasibility studies; a number are
completed or nearing completion, as shown in Table 1. Between the most recent enactment of a
WRDA in 2007 (P.L.
110-114) and October 1, 2013January 2014, the Assistant Secretary of the Army (Civil
Works) had transmitted to
Congress 23 reports with recommendations for congressional
construction authorization.6 Another 7 reports were
completed and awaiting transmittal to
Congress, which would occur after a policy review by the
Assistant Secretary of the Army and the
Office of Management and Budget; these projects have
completed reports with favorable
recommendations by the agency’s Chief of Engineers, referred to as a Chief’s Report. These 30
reports recommend projects representing $27 billion, of which nearly $17 billion would be
federal and more than $10 billion nonfederal; most Corps construction projects require nonfederal
cost-sharing. Another five projects have draft feasibility reports.
Table 1. Corps Studies Awaiting Authorization or
Nearing Completion and Transmittal to Congress
Status of Corps Studies with
Reports Nearing Completion
Number of
Reports
Total Authorization of
Appropriations
($ in billions)a
Federal Authorization
of Appropriations
($ in billions)a
Chief’s Report Transmitted to Congress
23
$14.1
$8.4
Chief’s Report Awaiting Transmission
7
$12.8b
$8.3
Draft Feasibility Report
2
$0.08
$0.05
Chief’s Report Anticipated by July 2014
13
NAc
NA
Source: CRS using Corps data and project information as of October 1, 2013.
a. Figure includes initial construction and renourishment; it does not include operation and maintenance.
b. The Morgana to the Gulf, LA, hurricane protection project at $10.3 billion represents most of these costs
of the projects in this status.
c. NA = Not Available. Data on the estimated cost of the construction projects studied in these reports
become available once the draft feasibility report becomes available.
5
Typically only a few projects are removed from the pool through legislation or the deauthorization processes.
Some Chief’s Reports cover multiple projects. For example, the Mississippi Coastal Improvement Program Chief’s
Report covers 11 projects; the Louisiana Coastal Area report covers six projects.
6
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
to as a Chief’s Report. Of these 30 completed studies, H.R. 3080 would authorize a fixed set of
23 new construction projects and project scope modifications at a total cost of $13.0 billion ($7.7
billion in federal costs and $5.3 billion in nonfederal costs), and two project cost modifications.
Instead of identifying specific projects for new construction authorizations and authorizations of
modifications, §1002 of S. 601 would authorize any new construction project or project
modification meeting specified criteria. As of early January 2014, 23 projects at a total cost of
$22.9 billion ($14.1 billion federal and $8.8 billion nonfederal) appeared to meet the criteria.6
Most Recent Developments in Omnibus Authorization Legislation
The 113th Congress is confronted with multiple Corps authorization and policy issues, some of
which have been addressed in proposed WRDA bills in the House and the Senate. Recent WRDA
consideration has been shaped by multiple factors, including congressional earmark debate,7
backlog of authorized but unconstructed projects, rate of project delivery, use and balance of
navigation trust funds, opportunities for innovative financing, and nonfederal role in project
delivery. Some stakeholders also are interested in returning to a more frequent enactment of
WRDA, which was originally discussed as a biennial authorization bill.
5
Typically only a few projects are removed from the pool through legislation or the deauthorization processes.
When the Senate passed S. 601 on May 15, 2013, there were 19 projects representing $10.8 billion ($6.3 billion
federal and $4.5 billion nonfederal) in construction costs that appeared to meet the criteria in §1002.
7
Earmark moratoriums that apply not only to appropriations but also authorizations of site-specific projects have
influenced recent congressional action related to the Corps.
6
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
Some stakeholders support enactment of a
WRDA in order to address developments
since WRDA 2007, including authorization of
new construction projects and changes to
authorized construction projects.8 Supporters
of action on WRDA also point to the shortterm employment and long-term economic
and environmental benefits of water resources
projects as a reason for WRDA action. Others
argue that a typical WRDA may exacerbate
rather than alleviate issues with the Corps,
such as a growing backlog of authorized
projects. These interests argue that if WRDA
consideration is pursued, the bill should
establish authorization and funding priorities,
manage the backlog, and improve
performance at the project and agency level.
House Action
WRDAs in Recent Decades
Beginning in 1986, a biennial WRDA cycle was loosely
followed for a number of years. WRDAs were enacted in
1988 (P.L. 100-676), 1990 (P.L. 101-640), 1992 (P.L. 102580), 1996 (P.L. 104-303), 1999 (P.L. 106-53), and 2000
(P.L. 106-541). WRDA 1986 marked the end of a
stalemate between Congress and the executive branch
regarding authorizations. It resolved long-standing
disputes related to cost-sharing, user fees, and
environmental requirements. Prior to 1986, disputes
over these and other matters had largely prevented
enactment of major civil works legislation since 1970.
Biennial authorizations were resumed after WRDA 1986
to avoid long delays between the planning and execution
of projects and so that Congress could review proposed
projects on a regular basis. Pressure to authorize new
projects, increase authorized funding levels, and modify
existing projects is often intense, thus promoting a fairly
regular biennial consideration of WRDA, although
enactment has been less consistent. Controversial
project authorizations and disagreements over the need
for and direction of changes to the way the Corps plans,
constructs, and operates projects contributed to WRDA
bills not being enacted in the 107th, 108th, and 109th
Congresses. The 110th Congress enacted WRDA 2007 in
November 2007, overriding a presidential veto.
Brief descriptions of House and Senate action
on Corps omnibus authorization legislation are
provided below. For more information, CRS
Report R43298, H.R. 3080 and S. 601: Sideby-Side Comparison of Selected Provisions,
by Nicole T. Carter et al., provides a more
detailed discussion of a number of provisions in both bills.
House Action
The House Transportation and Infrastructure The House Transportation and Infrastructure
(T&I) Committee marked up H.R. 3080, the
Water Water
Resources Reform and Development
Act of 2013, in September 2013. The WRRDA
House passed the bill
in October 2013, and began conference with the Senate on its Corps omnibus authorization bill in
November 2013. The WRRDA title is in lieu of the more traditional WRDA. According to the
committee’s press release,
This legislation will contain no earmarks and will make major reforms to increase
transparency, accountability, and Congressional oversight in reviewing and prioritizing future
water resources development activities. WRRDA will cut federal red tape and bureaucracy,
streamline the project delivery process, promote fiscal responsibility, and strengthen our water
transportation networks to promote American competitiveness, prosperity, and economic
growth.9
7
Earmark moratoriums that apply not only to appropriations but also authorizations of site-specific projects have
influenced recent congressional action related to the Corps.
H.R. 3080 as passed by the House includes provisions to:
8
No estimate is publicly available of the total construction cost associated with post-authorization change studies of
construction projects that require authorization modifications in order to proceed as a result of cost increase or
significant project changes.
9
House Transportation and Infrastructure Committee, “Shuster and Gibbs Announce Plans for Committee to Consider
Water Resources Reform Legislation in September,” press release, August 2, 2013.
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
The Subcommittee on Water Resources and Environment held a hearing on June 5, 2013, on
water resources infrastructure projects; the hearing focused on Corps projects that had a
completed Chief’s Report and the process to develop these reports.10
H.R. 3080 as marked up includes provisions to
•
•
••
•
•
•
•
•
•
•
•
authorize 23 specific new construction projects, which the bill identifies as
totaling $13 billion (almost $87.7 billion in federal costs, and $5.3 billion in
nonfederal costs);11
authorize modifications to three specific ongoing projects (estimated at $2
billion); 10
establish a deauthorization process that begins with the Secretary of the Army
(Civil Works) identifying $12 billion in authorized federal costs associated with
pre-WRDA 2007 projects that meet certain criteria;
alter the process by which Corps projects are studied and delivered (e.g.,
eliminating the reconnaissance study, altering the environmental review process);
expand the authorities for nonfederal contributions and roles (e.g., maintenance
of harbors);
authorize a public-private project delivery pilot program for 15 projects;
establish target appropriations levels from the Harbor Maintenance Trust Fund
(HMTF), expand HMTF eligible activities (e.g., berth dredging, dredging of
some contaminated sediment), and provide direction on the distribution of HMTF
funds among different types of harbors;
authorize modifications to inland waterways financing and project development,
including alterations to the delivery process and cost-sharing requirements for
one construction project, and a study of potential future revenue sources;1211
authorize technical assistance for state levee safety programs (no authorized
amount specified); and
clarify crediting arrangement for work by nonfederal sponsors.
The committee report accompanying the bill is anticipated to be filed on Monday, October 21,
2013. Floor consideration is anticipated soon thereafter.
10
U.S. Congress, House Transportation and Infrastructure, Water Resources and Environment, A Review of the United
States Army Corps of Engineers Chief’s Reports (video)Senate Action
Senate consideration of its WRDA 2013, S. 601, began in March 2013; the bill was reported by
the Senate Environment and Public Works (EPW) Committee with S.Rept. 113-13. S. 601 as
passed by the Senate would authorize Corps activities and modifications of existing
authorizations that meet certain criteria; the bill includes numerous other provisions as it attempts
to address issues concerning the duration and cost of Corps projects. The bill also would establish
new procedures for using HMTF monies, in an effort to expand spending above current levels.
Among other things, S. 601 includes project-related provisions that
•
•
authorize new Corps construction projects and a process for proceeding with
modifications to existing authorizations;
amend the process for environmental compliance for Corps activities;12 and
10
The Subcommittee on Water Resources and Environment held a hearing on June 5, 2013, on water resources
infrastructure projects; the hearing focused on Corps projects that had a completed Chief’s Report and the process to
develop these reports (U.S. Congress, House Transportation and Infrastructure, Water Resources and Environment, A
Review of the United States Army Corps of Engineers Chief’s Reports [video], 113th Cong., 1st sess., June 5, 2013,
http://transportation.house.gov/hearing/review-united-states-army-corps-engineers-chief%E2%80%99s-reports.
11
Of the 23 new project construction authorizations included in H.R. 3080, as of October 1, 2013, 21 had reports that
had been transmitted to Congress and two had completed Chief’s Reports but had not been transmitted by the Secretary
to Congress.
12). The
projects discussed at the hearing are the basis for the projects included in the House-passed H.R. 3080.
11
The Inland Waterway Trust Fund (IWTF) has a declining balance that appears to have limited waterway construction
in recent years. H.R. 3080 would authorize changes to the inland waterways project delivery process and reduce from
50% to 25% the IWTF cost-sharing requirement for the Olmsted Locks and Dam Project, which has taken up the
majority of IWTF appropriations in recent years. For more details . For more details
on the IWTF and proposals for altering inland
waterways financing arrangement, see CRS Report R41430, Inland
Waterways: Recent Proposals and Issues for
Congress, by Charles V. Stern.
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities
Senate Action
Senate consideration of its WRDA 2013, S. 601, began in March 2013; the bill was reported by
the Senate Environment and Public Works (EPW) Committee with S.Rept. 113-13, and passed by
the Senate on May 15, 2013. S. 601 would authorize Corps activities and modifications of
existing authorizations that meet certain criteria; the bill includes numerous other provisions as it
attempts to address issues concerning the duration and cost of Corps projects. The bill also would
establish new procedures for using HMTF monies, in an effort to expand spending above current
levels. There is no official estimate of the total authorization of appropriations in S. 601; due to
the programmatic nature of some of the authorizations in the bill, more activities would be
authorized or eligible for Administration action as more reports are transmitted to Congress for
new project construction and for changes to existing project authorizations.13
Among other things, S. 601 includes project-related provisions that
•
•
•
authorize new Corps construction projects and a process for proceeding with
modifications to existing authorizations;
amend the process for environmental compliance for Corps activities;14 and
Congress, by Charles V. Stern. For additional information on the
evolution and options for inland waterway financing, see CRS Report R43101, Inland Waterways: Financing and
Management Options in Federal Studies, by John Frittelli
12
CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning:
(continued...)
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authorize an effort to review and possibly deauthorize activities approved by
Congress prior to WRDA 1996.
S. 601 would change water resource project financing through provisions that
•
•
expand crediting opportunities for nonfederal work on Corps projects and
increase the opportunities for nonfederal roles in project management;1513 and
create new funding mechanisms for certain projects, such as a pilot program for
the Corps and the U.S. Environmental Protection Agency (EPA) to provide
financial assistance in the form of direct loans and loan guarantees for certain
flood control and water supply projects.1614
For navigation infrastructure, S. 601 would
•
•
establish new procedures for using the Harbor Maintenance Trust Fund (HMTF)
monies, in an effort to expand harbor maintenance spending above current
levels;17 and
13
While an estimate of total authorizations is not available, the Congressional Budget Office (CBO) produced a cost
estimate for S. 601 as reported by the Senate Committee on Environment and Public Works; CBO evaluated the
budgetary impact of the projects covered by the 20 Chief’s Reports that had been transmitted to Congress at the time
the bill was reported. According to CBO, implementation of S. 601, as reported, was estimated at $5.7 billion for 2014
to 2018, and $6.5 billion from 2019 to 2023.
14
CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning:15 and
authorize limited alterations to inland waterways financing and project
development, including alterations to the delivery process for these projects and
alterations to inland waterway cost-sharing for rehabilitation projects and one
construction project.16
S. 601 would address flood infrastructure issues through provisions that
•
•
expand Corps authorities for levee improvements and certifications (see box on
“Limited Corps Role in NFIP Levee Data Certification” on page 20);17
authorize federal support for the creation of state levee safety programs and
grants for levee safety activities;18 and
(...continued)
Background and Issues for Congress, by Linda Luther, describes Corps projects and environmental compliance.
1513
A CRS analysis of the proposed changes is available to congressional offices upon request (Congressional
Distribution Memorandum: “Credit for Nonfederal Work on Army Corps Projects” by Nicole T. Carter, April 12,
2013).
1614
While WRDA bills generally have been focused on Corps civil works activities, other agencies’ activities have been
included when water resources actions are undertaken in collaboration or jointly with the Corps (e.g., FEMA’s role in
the National Dam Safety Program). The new funding mechanism is among several proposals for financing water
infrastructure; for a discussion of the legislative options for water infrastructure financing, see CRS Report R42467,
Legislative Options for Financing Water Infrastructure, by Claudia Copeland, Steven Maguire, and William J. Mallett,
and CRS Report R43315, Water Infrastructure Financing: Proposals to Create a Water Infrastructure Finance and
Innovation Act (WIFIA) Program, by Claudia Copeland.
15.
17
The HMTF has a growing balance. For more on the HMTF, see CRS Report R41042, Harbor Maintenance Trust
Fund Expenditures, by John Frittelli.
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authorize limited alterations to inland waterways financing and project
development, including alterations to the delivery process for these projects and
alterations to inland waterway cost-sharing for rehabilitation projects and one
construction project.18
S. 601 would address flood infrastructure issues through provisions that
•
•
•
expand Corps authorities for levee improvements and certifications (see box on
“Limited Corps Role in NFIP Levee Data Certification” on page 20);19
authorize federal support for the creation of state levee safety programs and
grants for levee safety activities;20 and
reauthorize appropriations (which expired in September 2011) for and modify the
National Dam Safety Program.
While S. 601 and H.R. 3080 provide authorization and congressional direction on a number of the
same topics, they often propose different legislative solutions. S. 601 also includes a number of
provisions with no counterparts in H.R. 3080 (e.g., Corps-EPA pilot program for loans, federal
support for levee safety programs and related grants).
Other Corps Authorization Issues
While S. 601 and H.R. 3080 address a number of Corps authorization issues, there are a number of additional topics
that are of interest to stakeholders that may receive attention as Congress continues to consider an omnibus Corps
authorization. Among the additional issues are those associated with legislation introduced in the 113th Congress
16
S. 601 would authorize changes to the inland waterways project delivery process; alter cost-sharing for these projects
so that the federal government is responsible for paying all rehabilitation costs less than $20 million out of the General
Revenue fund (previously the federal government only covered costs less than $8 million); for more on the fund and its
history and issues, see footnote 11.
17
For more on levee policy, a CRS memorandum is available to congressional offices upon request (Congressional
Distribution Memorandum: “Levee Policy Development During the 113th Congress” by Nicole T. Carter, September 5,
2013).
18
The S. 601 national levee safety program is similar to recommendations by the National Levee Safety Committee
established by WRDA 2007. It would promote establishment of state and tribal levee safety programs through a federal
grant program, create a National Levee Safety Advisory Board to annually report on the program, and establish federal
leadership in developing national levee safety standards and guidelines and the provision of technical assistance.
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•
reauthorize appropriations (which expired in September 2011) for and modify the
National Dam Safety Program.
While S. 601 and H.R. 3080 provide authorization and congressional direction on a number of the
same topics, they often propose different legislative solutions. S. 601 also includes a number of
provisions with no counterparts in H.R. 3080 (e.g., Corps-EPA pilot program for loans, federal
support for levee safety programs and related grants).
Administration Action
The Assistant Secretary of the Army (Civil Works) commented on the Administration’s
preferences for a WRDA bill in the 113th Congress in various letters sent to the Senate EPW,
House T&I, and to the conference managers.19 For many of the topics raised in the letters, the
approach taken in the bills and the Administration’s desired direction for the Corps authorizations
and policies do not appear to coincide. For example, the Administration raised concerns about
both what is included in the bills (e.g., significant increases to federal spending for harbor
maintenance, reduced nonfederal cost shares for some projects, and changes to environmental
review of projects) and what was not included (e.g., Administration’s proposal to raise more
revenue for inland waterway construction financing). At the same time, the Administration has
also expressed support for waterways improvements.
Other Corps Authorization Issues
While S. 601 and H.R. 3080 address a number of Corps authorization issues, several additional topics of interest to
stakeholders may receive attention during the 113th Congress. Among the additional issues are those associated with
legislation introduced in the 113th Congress, including:
•
adjustments to the Inland Waterway Trust Fund that would further alter financing for these projects (H.R. 1149);
•
barring the Corps from promulgating or enforcing regulations that prohibit possessing firearms, including
assembled and functional firearms, at Corps water resources projects (H.R. 2046 and Section 113 of H.R. 2609);
for more information see CRS Report R42602, Firearms at Army Corps Water ResourcesResource Projects: Proposed
Legislation Legislation
and Issues for Congress, by Nicole T. Carter);
•
amending the Water Supply Act of 1958 (H.R. 2813); for more, see CRS Report R42805, Reallocation of Water
Storage at Federal Water Projects for Municipal and Industrial Water Supply, by Cynthia Brougher and Nicole T.
Carter);
•
establishing policies for fees associated with Corps facilities on the Missouri River (H.R. 2741); see CRS Report
18
The Inland Waterway Trust Fund (IWTF) has a declining balance that appears to have limited waterway construction
in recent years. S. 601 would authorize changes to the inland waterways project delivery process; alter cost-sharing for
these projects so that the federal government is responsible for paying all rehabilitation costs less than $20 million out
of the General Revenue fund (previously the federal government only covered costs less than $8 million); and exempt
the Olmsted Locks and Dam Project from IWTF cost-sharing requirements. For more details on the IWTF and
proposals for altering inland waterways financing arrangement, see CRS Report R41430, Inland Waterways: Recent
Proposals and Issues for Congress, by Charles V. Stern. For additional information on the evolution and options for
inland waterway financing, see CRS Report R43101, Inland Waterways: Financing and Management Options in
Federal Studies , by John Frittelli
19
For more on levee policy, a CRS memorandum is available to congressional offices upon request (Congressional
Distribution Memorandum: “Levee Policy Development During the 113th Congress” by Nicole T. Carter, September 5,
2013).
20
The S. 601 national levee safety program is similar to recommendations made by the National Levee Safety
Committee established by WRDA 2007. The program would promote the establishment of state and tribal levee safety
programs through a federal grant program, create a National Levee Safety Advisory Board to annually report on the
effectiveness of the program, and establish federal leadership in developing national levee safety standards and
guidelines and the provision of technical assistance.
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R42836, Federal and State Authority over Surplus Water Stored at Federal Water Projects, by Cynthia Brougher;
•
adjusting the factors the Corps considers in its benefit-cost analyses (H.R. 1769); and
•
altering the Corps recreational fee authorities (S. 400).
Administration and Agency Action
The Assistant Secretary of the Army (Civil Works) commented on the Administration’s
preferences for a WRDA bill in the 113th Congress in a letter sent to the Senate EPW on March
14, 2013, just prior to the introduction of S. 601.21 For many of the items raised in the letter, the
approach taken in S. 601 and the Administration’s desired direction for the WRDA bill appear not
to coincide. The Administration also produced a Statement of Administration Policy (SAP) on S.
601 on May 6, 2013.22 It stated: “S. 601 would weaken Congressional involvement and
transparency in the authorization of Corps studies and construction projects while expanding
Federal obligations without ensuring taxpayer dollars are targeted to achieve the highest overall
return to the Nation.” The Administration also raised concerns about both what is included in S.
601 (e.g., tripling of federal spending for harbor maintenance, reduced nonfederal cost shares for
some projects, and changes to project permitting) and what is not included (e.g., Administration’s
proposal to raise more revenue for inland waterway construction financing; see CRS Report
R42836, Federal and State Authority over Surplus Water Stored at Federal Water Projects, by Cynthia Brougher); and
•
altering the Corps recreational fee authorities (S. 400).
Energy and Water Development Appropriations
The rate of Corps authorizations exceeds the rate of the agency’s annual appropriations.
Consequently, only a subset of authorized activities are included in the President’s budget request
and funded by enacted appropriations. This results in competition for funds among authorized
activities during the appropriations process. To concentrate limited resources and to move
ongoing projects toward completion, budget requests by the George W. Bush and Obama
19
Letter from Jo-Ellen Darcy, Assistant Secretary of the Army, Civil Works, to Senator Barbara Boxer, Senator David
Vitter, Representative Bill Shuster, and Representative Nick J. Rahall, II, December 11, 2013, http://www.eenews.net/
assets/2013/12/12/document_daily_03.pdf.
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Administrations have focused funding on projects near completion, and have limited new studies
and projects. Both Administrations also have focused funds on projects within the Corps’ primary
missions of flood and storm damage reduction, navigation, and aquatic ecosystem restoration.
While this report addresses Corps appropriations in general, the following CRS reports provide
more detailed information and analysis of recent Corps funding issues:
•
•
•
•
CRS Report R41961, Army Corps Fiscal Challenges: Frequently Asked
Questions, by Nicole T. Carter and Charles V. Stern;
CRS Report R43069, Energy and Water Development: FY2014 Appropriations,
Preliminary Tables, coordinated by Carl E. Behrens;
CRS Report R42498, Energy and Water Development: FY2013 Appropriations,
coordinated by Carl E. Behrens; and
CRS Report R42841, Army Corps Supplemental Appropriations: Recent History,
Trends, and Policy Issues, by Charles V. Stern and Nicole T. Carter.
21
Letter from Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works), to Senator Barbara Boxer, Chairwoman,
Senate Environment and Public Works Committee, March 14, 2013.
22
Executive Office of the President, Statement of Administration Policy, S. 601—Water Resources Development Act of
2013, May 6, 2013, http://www.whitehouse.gov/omb/113/legislative_sap_date_2013.
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Army Corps of Engineers: Water Resource Authorizations, Appropriations, and ActivitiesR41961, Army Corps Fiscal Challenges: Frequently Asked
Questions, by Nicole T. Carter and Charles V. Stern; and
CRS Report R42841, Army Corps Supplemental Appropriations: Recent History,
Trends, and Policy Issues, by Charles V. Stern and Nicole T. Carter.
Enacted annual Corps civil works appropriations (excluding supplemental appropriations) have
remained steady or increased slightly over the last decade, ranging from $4.5 billion to $5.5
billion in recent years. As the agency’s inventory of infrastructure grows and ages, an increasing
share of the agency’s appropriations is used for operations and maintenance.2320
Another trend has been increasing emergency supplemental appropriations for the agency. From
1987 to 2013, Congress appropriated $32.2 billion in supplemental funding to the Corps.2421 Of this
funding, $30.8 billion came through supplemental appropriations acts passed between 2003 and
2013. This funding was approximately half of the amount provided to the Corps for regular
appropriations over this same period ($55 billion).
Roughly 85% of the Corps budget is for geographically specified studies or projects. Funding for
geographically specific studies or projects requested in the Administration’s budget or identified
in agency-developed work plans (which have been used for FY2011, FY2012, and FY2013, and
for portions of the agency’s FY2014 funding) are ) are
not considered congressional earmarks. Prior to
FY2011 and the onset of congressional earmark
moratoria, congressional appropriations to the
Corps generally funded a larger set of studies,
projects, and maintenance activities (e.g., dredging
of low- and medium-use harbors) than
proposed by the Administration. This makes the Corps a
significant part of the debate over the
impact and efficacy of earmarking (also referred to as
congressionally directed spending).
Most recently, due in part to earmark moratoria, congressionally directed additions have largely
been for broad categories of ongoing activities not included in the President’s budget (e.g.,
additional funding for harbor maintenance), with the Corps responsible for selecting which
projects are funded based on the direction provided by Congress.
2320
For more information, see U.S. Congress, Senate Energy and Natural Resources, Water and Power, Hearing to
Address Aging Water Resource Infrastructure in the United States (video), 113th Cong., 1st sess., July 25, 2013,
http://www.energy.senate.gov/public/index.cfm/hearings-and-business-meetings?ID=59c93dec-c9da-4f94-a15fbe363706c1d4.
2421
This includes $5.3 billion in supplemental funds provided for response and recovery related to Hurricane Sandy in
P.L. 113-2.
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Nonfederal Funding of and Action on Corps ProjectsCorps Activities
Nonfederal entities recently have shown interest in conducting the required studies and construction activities for
Corps water resources projects and for augmenting the federal appropriations for specific Corps water resources
projects. These authorities may receive some attention during the 113th Congress as nonfederal interests seek ways
to move their water resources projects forward. These authorities include the following.
•
33 U.S.C. Section 701h allows the Secretary of the Army to accept contributed funds from states and their
political subdivisions for work on any authorized Corps water resources development study or project in
connection with federal funds when considered in the public interest by the Secretary.
•
33 U.S.C Section 560 allows the Secretary to accept funds contributed by private parties for authorized work for
public improvement of rivers and harbors if considered advantageous for navigation.
•
33 U.S.C. Section 701b-13 provides that a nonfederal interest may undertake flood control activities, including
studies and construction, and later may be reimbursed (subject to the availability of federal funds) or credited for
its portion of the work subject to the approval of the Secretary of the Army.
•
33 U.S.C. Section 2231 provides that a nonfederal interest may use its funds to undertake a study of a proposed
harbor or inland harbor project and may be credited for its portion of the work subject to the Secretary’s
approval.
•
33 U.S.C. Section 2232 provides that a nonfederal interest may perform navigation construction activities for
authorized projects with the Secretary’s approval, and may be reimbursed for the nonfederal portion of the
construction work if federal funds become available.
These authorities come with risks and challenges for nonfederal entities (e.g., slow or no federal reimbursement) and
can require significant up-front financing by nonfederal interests. For example, Corps studies and construction
projects must comply with applicable federal laws and regulations. Producing a compliant study or construction
project may be a challenge for many nonfederal interests.
Few new Corps studies or projects have received funding in recent fiscal years. New activities or
activities that have not recently received funding in Administration requests are often referred to
as “new starts.” Since FY2011, Congress has included in enacted appropriations bills a provision
that prohibits funding for all new starts. As a result, the majority of studies and construction
projects authorized in WRDA 2007 remain without federal funding. The Consolidated
Appropriations Act, 2014 (P.L. 113-76) would provide the Corps with limited authority and
funding to initiate a maximum of nine new start studies and four new start construction projects.
Standard Corps Project Delivery Process
The congressional authorization and the appropriations processes are critical steps in a multi-step
process to deliver a Corps project. This section describes the standard study and construction
process for most Corps projects, and some exceptions to the standard process. The standard
process consists of the following basic steps (also see Table 21):
•
•
•
•
•
Study authorization is obtained in WRDA or a committee resolution.
The Corps performs a reconnaissance study using appropriated funds.
The Corps performs a feasibility study if the reconnaissance study is favorable
and funds are appropriated.
Construction authorization is pursued. The Corps can perform preconstruction
engineering and design while construction authorization is being pursued.
Congress authorizes construction, and the Corps constructs the project if funds
are appropriated.
The process is not automatic. Appropriations are required to perform studies and undertake
construction; that is, congressional study and construction authorizations are necessary but
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insufficient for the Corps to pursue a project. For most activities, the Corps also needs a
nonfederal sponsor to share the study and construction costs. Nonfederal sponsors generally are
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state, tribal, county, or local agencies or governments. Although sponsors typically need to have
some taxing authority, some Corps activities can be cost-shared with nonprofit and other entities.
Since WRDA 1986 (P.L. 99-662), nonfederal sponsors are responsible for a significant portion of
the financing of studies, construction, and operation and maintenance (O&M) of most projects.
Generally, projects take longer than the times shown to complete the steps shown in Table 21
because they have to wait for appropriations or congressional authorizations.
Table 21. Corps Project Phases, Average Phase Duration If Fully Funded,
and Federal Cost
Reconnaissance
Avg. Duration
(years), once
congressionally
authorized and
funded
Federal Share of
Costs
1
100%
Feasibility
Preconstruction
Engineering and
Design (PED)
Construction
2-3
approx. 2
varies
authorized
project
duration
50%a
varies by
project purposeb
varies, see
Table 32
varies, see
Table 32
Operation &
Maintenance
Source: CRS.
a. Inland waterways feasibility studies are a 100% federal responsibility (33 U.S.C. §2215). These projects are
not considered “local” by their nature.
b. Generally PED costs shares are the same as construction cost-shares in Table 32.
Study Authority to Initiate a Corps Project
A Corps project starts with a study of the water resource issue and alternatives to address it. The
purpose of the Corps study process is to inform federal decision-makers on whether there is a
federal interest in authorizing a Corps construction project. The Corps generally requires two
types of congressional action to initiate a study—study authorization and then appropriations.
Interest in Corps assistance with a water resource need often originates with a request from a
local or state government entity or community, business, or other local interests.
If the Corps has performed a study in the geographic area before, a new study can be authorized
by a resolution (known commonly as a “survey resolution”) of either the House Transportation
and Infrastructure Committee or the Senate Environment and Public Works Committee.2522 To be
eligible for a resolution authorization, the new study must stay within the scope of the
authorization of the original completed report. If the Corps has not previously investigated,
Congress needs to authorize the study in legislation, typically WRDA.
Once a study is authorized, appropriations are sought through the annual Energy and Water
Development appropriations acts. Within the Corps, projects are largely planned at the district
level, and approved at the division and Corps headquarters. Early in the study process, the Corps
assesses the level of interest and support of nonfederal entities that may be potential sponsors.
The reconnaissance study, feasibility study, and preconstruction engineering and design are
2522
To request a study’s inclusion in a resolution, a Member of Congress may send a letter to the chairman of the House
T&I Committee or the Senate EPW Committee. The number of studies authorized by resolution varies by Congress.
The 108th Congress authorized 63 studies via survey resolutions; the 109th Congress authorized 29.
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The reconnaissance study, feasibility study, and preconstruction engineering and design are
conducted under a single congressional study authorization. The length of each phase varies by
project, with larger and more complex projects typically requiring a longer process.
Reconnaissance Study
The reconnaissance study investigates the nature of the water resources problem and assesses the
federal government’s interest. The reconnaissance study also examines the interest of nonfederal
sponsors, who generally are involved in all phases of project delivery. Corps policy is to complete
most reconnaissance studies within 12 months. The costs of reconnaissance studies and their
related project study plans generally are limited to $100,000 at full federal expense. Around onethird of reconnaissance studies eventually lead to feasibility studies; some 16 of every 100
reconnaissance studies lead to constructed projects.2623
Feasibility Study and Construction Authorization
If a nonfederal sponsorship is secured and the Corps recommends proceeding, a feasibility study
begins. The cost of the feasibility study (including related environmental studies) is split equally
between the Corps and the nonfederal project sponsor, as shown in Table 21. The objective of the
feasibility study is to formulate and recommend solutions to the water resources problem
identified in the reconnaissance phase. During the first few months of a feasibility study, the local
Corps district formulates alternative plans, investigates engineering feasibility, conducts benefitcost analyses, and assesses environmental impacts under the National Environmental Policy Act
of 1969 (NEPA, 42 U.S.C. §4321).2724 The evaluation of federal water resources projects, including
Corps activities, is governed by the 1983 Principles and Guidelines for Water and Related
Resources Implementation Studies, written by the Water Resources Council, and policy direction
provided in WRDA bills and other enacted legislation.2825 An important outcome of the feasibility
analysis is determination of whether the project warrants further federal investment (i.e., whether
it has sufficient national economic development benefits).
The feasibility phase ends when the Chief of Engineers signs a final recommendation on the
project, known as the Chief’s Report. The Corps sends an “informational copy” of the Chief’s
Report to Congress when it transmits the report to the Assistant Secretary and the Office of
Management and Budget (OMB). Since the mid-1990s, Congress has authorized a significant
number of projects based on these informational copies, prior to the projects receiving a full
review by the Assistant Secretary and OMB. Congress also has authorized construction of a small
set of projects prior to the availability of informational copies of feasibility studies; these
construction authorizations generally are contingent on a favorable Chief’s Report or a
determination of feasibility by the Secretary of the Army.
Once construction is authorized and funds appropriated, the Corps typically functions as the
project manager; that is, Corps staff typically are responsible for implementing construction.
2623
General Robert B. Flowers, Army Corps Chief of Engineers, oral statement, Reforms to Address the Corps of
Engineers Feasibility Studies, hearing before Senate EPW Subcommittee on Transportation and Infrastructure on
March 15, 2001, available at http://epw.senate.gov/stm1_107.htm. More recent statistics are not publicly available.
2724
CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning:
Background and Issues for Congress, by Linda Luther, discusses in detail how the Corps study process is combined
with its NEPA compliance process.
2825
Available at http://www.usace.army.mil/CECW/Pages/pgr.aspx. Pursuant to WRDA 2007, the Administration is
updating the Principles and Guidelines; information on the revision process is available at http://www.whitehouse.gov/
administration/eop/ceq/initiatives/PandG.
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While some construction may be performed by Corps personnel and equipment, the majority of
construction work is contracted out to private engineering and construction contractors. Postconstruction Post-construction
ownership and operations responsibilities depend on the type of project. When
construction is
complete, the Corps may own and operate the constructed project (e.g., navigation
projects), or
ownership may be turned overtransfer to the nonfederal sponsor (e.g., most flood damage
reduction projects).
Cost Shares for Construction and Operation and Maintenance
The feasibility study also evaluates how construction costs will be split between the federal
government and the nonfederal sponsor. The split of federal and nonfederal financial
cost-share responsibilities for construction and
O&M varies by project purpose, as shown in Table 32. Corps
projects generally have primary
purposes of navigation, flood and hurricane storm damage
reduction, and/or aquatic ecosystem restoration. While these are primary purposes, the agency has
restoration. The agency also has the authority to undertake activities with other purposes as part
of multi-purpose projects. Table 3
2 lists these additional project purposes, which can be added to a
project that has at least one of the
three primary purposes at its core.
How to allocate the construction and O&M costs of Corps projects among nonfederal sponsors
and the federal government has been debated for decades. WRDA 1986 significantly increased
local cost-share requirements; some subsequent WRDAs made further adjustments in cost
sharing. The waiving of cost-share requirements for individual projects is infrequent and typically
requires specific authorization by Congress. Congress has established that the cost shares shall be
subject to the nonfederal sponsors’ ability to pay (33 U.S.C. §2213(m)(2)).2926 Which contributions
should be credited toward the nonfederal cost share—for example, in-kind services and work
performed prior to the signing of a construction agreement—has also been debated; Section 2003
of WRDA 2007 (42 U.S.C. §1962d-5b) provided congressional direction on this subject.
Table 3. Standard Cost-Shares for Construction and Operation
of New Corps Projects
Maximum Federal
Share of Construction
Maximum Federal
Share of O&M
<20 ft. harbor
80%a
100%b
20-45 ft. harbor
65%a
100%b
>45 ft. harbor
40%a
50%b
100%c
100%
Inland Flood Control
65%
0%
Coastal Hurricane and Storm Damage Reduction
except Periodic Beach Renourishment
65%
50%
0%
0%
Project Purpose
Navigation
Coastal Ports—
Inland Waterways
Flood and Hurricane Damage Reduction
Repair of Damaged Flood and Coastal Storm Projects
29
Engineering and Design
The study phase—preconstruction engineering and design—that follows the feasibility analysis
takes two years, on average, and is conducted while pursuing congressional authorization for the
project and construction funding (33 U.S.C. §2287). Preconstruction costs are distributed between
the federal and nonfederal sponsor in the same proportion as the cost-share arrangement for the
construction phase. Once the project receives congressional authorization, federal funds for
construction are sought in the annual Energy and Water Development Appropriations Act. The
federal cost share for construction varies by project purpose. Nonfederal parties are responsible
for all operation and maintenance expenses, absent a few exceptions, mainly for harbors and
inland waterways.
Changes After Construction Authorization
A project is likely to undergo some changes after authorization. If project features or the
estimated cost change significantly, additional congressional authorization may be necessary.
Authorization for a significant modification is typically sought in a WRDA. For less significant
modifications, additional authorization is often not necessary. Section 902 of WRDA 1986 (33
U.S.C. §2280) allows for increases in total project costs of up to 20% without additional
authorization for modifications that do not materially change the project’s scope or function.
26
The most recent publicly available guidance on how the Corps implements the ability to pay provision is from 1989,
which is available at http://140.194.76.129/publications/eng-regs/er1165-2-121/toc.htm. It does not reflect enacted
changes in the Corps authority, including those in Section 2019 of WRDA 2007.
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Maximum Federal
Share of Construction
Maximum Federal
Share of O&MTable 2. Standard Cost-Shares for Construction and Operation
of New Corps Projects
Maximum Federal
Share of Construction
Maximum Federal
Share of O&M
<20 ft. harbor
80%a
100%b
20-45 ft. harbor
65%a
100%b
>45 ft. harbor
40%a
50%b
100%c
100%
Inland Flood Control
65%
0%
Coastal Hurricane and Storm Damage Reduction
except Periodic Beach Renourishment
65%
50%
0%
0%
Locally Constructed Flood Projects
not applicable
80%d
Federally Constructed Flood and Coastal Projects
not applicable
100%d
65%
0%
Hydroelectric Power
0%e
0%
Municipal and Industrial Water Supply Storage
0%
0%
Agricultural Water Supply Storage
65%f
0%
Recreation at Corps Facilities
50%
0%
not applicable
50%
75%g
0%
Project Purpose
Navigation
Coastal Ports—
Inland Waterways
Flood and Hurricane Damage Reduction
Repair of Damaged Flood and Coastal Storm Projects
Aquatic Ecosystem Restoration
Multi-Purpose Project Components
Aquatic Plant Control
Environmental Infrastructure (typically municipal
water and wastewater infrastructure)
Source: 33 U.S.C. §§2211-2215, unless otherwise specified below.
a.
b.
c.
d.
e.
f.
g.
These percentages reflect that the nonfederal sponsors pay 10%, 25%, or 30% during construction and an
additional 10% over a period not to exceed 30 years.
Appropriations from the Harbor Maintenance Trust Fund, which is funded by collections on commercial
cargo imports at federally maintained ports, are used for 100% of these costs.
Appropriations from the Inland Waterway Trust Fund, which is funded by a fuel tax on vessels engaged in
commercial transport on designated waterways, are used for 50% of these costs.
33 U.S.C. §701n. Repair assistance is restricted to projects eligible for and participating in the Corps’
Rehabilitation and Inspection Program and to fixing damage caused by natural events.
Capital costs initially are federally funded and are repaid by fees collected from power customers.
For the 17 western states where reclamation law applies, irrigation costs initially are funded by the Corps
but repaid by nonfederal water users.
Most environmental infrastructure projects are authorized with a 75% federal cost share; a few have a 65%.
Engineering and Design
The study phase—preconstruction engineering and design—that follows the feasibility analysis
takes two years, on average, and is conducted while pursuing congressional authorization for the
project and construction funding (33 U.S.C. §2287). The preconstruction costs are distributed
between the federal and nonfederal sponsor in the same proportion as the cost-share arrangement
for the construction phase. Once the project receives congressional authorization, federal funds
for construction are sought in the annual Energy and Water Development Appropriations Act. The
federal cost share for construction varies by project purpose. Nonfederal parties are responsible
for all operation and maintenance expenses, absent a few exceptions mainly for harbors and
inland waterways.
Changes After Construction Authorization
A project is likely to undergo some changes after authorization. If project features or the
estimated cost changes significantly, additional congressional authorization may be necessary.
Authorization for a significant modification is typically sought in a WRDA. For less significant
modifications, additional authorization is often not necessary. Section 902 of WRDA 1986 (33
U.S.C. §2280) allows for increases in total project costs of up to 20% without additional
authorization for modifications that do not materially change the project’s scope or function.
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Study and Project Deauthorization
Although WRDA largely is an authorization bill, Congress at times has used WRDA to
reauthorize activities that would soon expire under established deauthorization processes or that
were already deauthorized. Authorizations of Corps construction projects generally are not timelimitedtime-
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limited; however, there are processes to begin deauthorization of studies and projects that have
not been funded for five years. Congress has established two deauthorization processes, one for
Corps studies and one for projects, unless congressional appropriations action is taken.
Under 33 U.S.C. Section 579a(b)(2), every year the Secretary is directed to annually transmit to Congress
a a
list of authorized projects and project elements that have receivedwith no obligations of funding
during the last full
five fiscal years. The project deauthorization list is published in the Federal
Register. If funds are
not obligated for the planning, design, or construction of the project or
element during the next
fiscal year, the project or element is deauthorized. The Secretary last
transmitted a new list of
construction projects eligible for deauthorization in 2007; those
deauthorizations became final in
2009. Without a secretarial transmittal of a list, the
deauthorization process is not initiated. That is, there There
have been no deauthorizations under this
authority since 2009.
Under 33 U.S.C. Section 2264, every year the Secretary of the Army is directed to transmit a list
to Congress of incomplete authorized studies that have not received appropriations for five full
fiscal years. The study list is not published in the Federal Register. Congress has 90 days after
submission of the study list to appropriate funds; otherwise the study is deauthorized. CRS has no
data indicating that studies have been deauthorized through this process in recent years.
Other Corps Activities and Authorities
Although the project delivery process described above is standard, there are exceptions. The
Corps has some general authorities to undertake small projects, technical assistance, and
emergency actions. Congress also has specifically authorized the Corps to undertake numerous
municipal water and wastewater projects. These exceptions are described herein.
Small Projects Under Continuing Authorities Programs
The Corps’ authorities to undertake small projects are called Continuing Authorities Programs
(CAPs). Projects under these authorities can be conducted without obtaining a project-specific
study or construction authorization or project-specific appropriations; these activities can be
performed at the discretion of the Corps. For most CAP authorities, Congress has limited the size
and scope of the projects, as shown in Table 4.303.27 The CAPs are typically referred to by the section
number in the bill where the CAP was first authorized.
In recent years, Congress has reduced the Corps’ discretion in managing the CAPs by directing
funds to particular CAP projects. Congress also increasingly has authorized specific CAP
projects. Some of these project-specific authorizations under the CAPs are used to apply special
rules to a project or to ensure that a project is considered eligible under a particular CAP. Demand
30for CAP projects has increased in recent years, although at the same time, Congress has criticized
Corps planning for CAP projects and considered reduced funding for some of these projects.28
Table 3 shows the backlog of projects competing for CAP funding.
27
There is also an authority under 33 U.S.C. §610 for the Corps to control noxious aquatic plant growths at a 70%
federal - 30% nonfederal cost share; the authority is capped at $15 million annually. This authority has not been
operated as a CAP. Most, but not all, of the work under this authority has been for research.
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for CAP projects has increased in recent years, although at the same time, Congress has criticized
Corps planning for CAP projects and considered reduced funding for some of these projects.31
Table 4 shows the backlog of projects competing for CAP funding.
Technical Assistance
Congress has also granted the Corps some general authorities to provide technical assistance. The
Corps does not need project-specific authority to undertake activities that are eligible under the
authorities listed in Table 5.
31
28
For instance, enacted appropriations for FY2011 (P.L. 112-10, Section 1457) rescinded $100 million from prior year
CAP balances. Additional reductions and a freeze on new CAP projects were proposed but not enacted in FY2012.
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Table 43. Select Corps Continuing Authorities Programs (CAP) for Small Projects
(in $ millions)
Common
Name of
the CAP
Authority
Eligible Activities
Max. Federal
Construction
Cost Share
PerProject
Federal
Limit
Annual
Federal
Program
Limit
FY2011
Work
Plan
FY2012
Work
Plan
FY2013
Work
Plan
FY2014
Est.
Federal
Backlog of
Active
Projectsa
Est.
Federal
Backlog of
Un-started
Projectsb
§14
Streambank and shoreline
erosion of public works
and nonprofit services
65%
$1.5
$15.0
$0
$3.9
$10.1
$4.0
$66.1
$19.1
§103
Beach erosion/ hurricane
storm damage reduction
65%
$5.0
$30.0
$0
$0.9
$0
$2.5
$42.1
$.2
§107
Navigation improvements
Commercial navigation
varies (see Table 32);
50% for recreational
$7.0
$35.0
$0
$2.9
$0
$4.7
$119.3
$39.4
§111
Prevention/mitigation of
shore damage by federal
navigation projects
Same as the project
causing the damage
$5.0
Not
Applicable
$0
$2.9
$0.5
$1.3
$48.6
$0.1
§204, §207,
§993
Regional sediment
management/beneficial
use of dredged material
65%
$5.0
$30.0
$0
$3.9
$3.8
$7.0
$65.2
$3.2
§205
Flood control
65%
$7.0
$55.0
$0
$18.7
$10.5
$15.0
$312.4
$206.0
§206
Aquatic ecosystem
restoration
65%
$5.0
$50.0
$0
$7.9
$19.7
$8.0
$422.6
$142.0
§208
Removal of obstructions,
clearing channels for
flood control
65%
$0.5
$7.5
$0
$0
$0
$0.4
$1.4
§1135
Project modifications for
improvement of the
environment
75%
$5.0
$40.0
$0
$7.9
$10.4
$10.5
$166.6
$84.6
Source: CRS, compiled from H.Rept. 111-278; Corps Work Plans for FY2011, FY2012, and FY2013FY2012 and FY2013; Rules Committee Print 113-32 accompanying Consolidated Appropriations Act,
2014 (P.L. 113-76); and other Corps documents, including Appendix F of Planning
Guidance Notebook, Engineering Regulation 1105-2-100, and Corps-provided data to
CRS in November 2011.
a. Federal share of active CAP projects (i.e., projects that have received some CAP funds in the last four fiscal years) as of the end of FY2011.
b. Federal share of un-started CAP projects (i.e., nonfederal sponsors have approached the Corps but the project had received no CAP funding as of the end of FY2011.
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Table 5Technical Assistance
Congress has also granted the Corps some general authorities to provide technical assistance. The
Corps does not need project-specific authority to undertake activities that are eligible under the
authorities listed in Table 4.
Table 4. Corps Technical Assistance Authorities
(in $ millions)
Program
Activities
Authorized
Planning
Assistance
to States
Technical assistance to
states and
communities for
communities
for regional water
resources planning
Flood Plain
Management
Service
Technical assistance
on flood and
floodplain on
flood and floodplain
issues
Tribal
Partnership
Program
Studies of water
projects that benefit
Indian tribes
Max.
Federal
Cost
Share
50%
Federal
Share
PerProject
Limit
$0.5
annually
per state
100% for
Not
eligible
Applicable
activities
50%a
$1.0
Annual
Federal
Program
Limit
FY2011
Work
Plan
FY2012
Work
Plan
FY2013
Work
Plan
FY2014
Not
Applicable
$6.350
$5.284
$6.077
$154.0
$8.81515.0
$9.110
$14.187
Not
Applicable
$1.000$8.0
Not
Applicable
$0.957
$0.698
$1.0
Source: CRS, compiled from H.Rept. 111-278; Corps Work Plans for FY2011, FY2012, and FY2013; and other
Corps documents, FY2012 and FY2013; Rules Committee
Print 113-32, accompanying Consolidated Appropriations Act, 2014 (P.L. 113-76); and other Corps documents,
including Appendix G of Planning Guidance Notebook, Engineering Regulation 1105-2-100.
a. Section 203 of WRDA 2000 (P.L. 106-541) states that cost sharing shall be subject to the ability of the
nonfederal entity to pay. A draft “Ability to Pay” rule is under development. If finalized, this rule would
apply to these studies. Until then, reductions in nonfederal costs are not to be applied.
Natural Disaster and Emergency Response Activities
National Response Framework Activities Under FEMA
The Stafford Act (42 U.S.C. §5170b) authorizes the Federal Emergency Management Agency
(FEMA) to direct the Department of Defense to provide assistance for a major disaster or under
an emergency declaration by the President. Under the National Response Framework, the Corps
coordinates emergency support for public works and engineering. This includes technical
assistance, engineering, and construction management as well as emergency contracting, power,
and repair of public water and wastewater and solid waste facilities. The Corps also assists in
monitoring and stabilizing damaged structures and demolishing structures designated as
immediate hazards to public health and safety. It also provides technical assistance in clearing,
removing, and disposing of contaminated and uncontaminated debris from public property, and
establishing ground and water routes into affected areas; contaminated debris management is
coordinated with the U.S. Environmental Protection Agency. The Corps’ funding for these
activities is provided through FEMA appropriations, often through supplemental appropriations.
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Flood-Fighting and Emergency Response
In addition to work performed as part of the National Response Framework, Congress has given
the Corps its own emergency response authority. This authority is commonly referred to as the
Corps’ P.L. 84-99 authority, based on the act in which it was originally authorized, the Flood
Control and Coastal Emergency Act. P.L. 84-99 (33 U.S.C. §701n) authorizes the Corps to
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perform emergency response and disaster assistance.3229 P.L. 84-99 authorizes disaster
preparedness, advance measures, emergency operations (disaster response and post-flood
response), rehabilitation of flood control works threatened by floods, protection or repair of
federally authorized shore protection works threatened by coastal storms, emergency dredging,
and flood-related rescue operations. These activities are limited to actions to save lives and
protect improved property (public facilities/services and residential or commercial
developments). The Corps also has some authorities to assist with select activities during
drought.30
Most of the Corps Most of the disaster response work performed under this authority (including the
repair program described
below) generally is funded through supplemental appropriations
provided directly to the Corps.
Until supplemental appropriations are provided, Congress has
provided the Corps with authority
in 33 U.S.C. Section 701n to transfer money from ongoing
Corps projects to emergency
operations.
Repair of Damaged Levees and Other Flood and Storm Projects
In P.L. 84-99, Congress also authorized the Corps to rehabilitate damaged flood control works
(e.g., levees) and federally constructed hurricane or shore protection projects (e.g., federal beach
nourishment projects) and to conduct related inspections.3331 This authority is referred to as the
Rehabilitation and Inspection Program (RIP). To be eligible for rehabilitation assistance, the
project must be in active status at the time of damage by wind, wave, or water action other than
ordinary nature.3432 Active RIP status is maintained by proper project maintenance as determined
during an annual or semiannual inspection and by the correction of deficiencies identified during
periodic inspections.3533 Approximately 14,000 miles of levees participate in RIP—2,250 miles of
locally constructed and operated levees; 9,650 miles of Corps-constructed, locally operated
levees; and 2,100 miles of federally operated levees.36
For locally constructed projects, 80% of the cost to repair the damage is paid using federal funds
and 20% by the levee owner (as shown in Table 3). For federally constructed projects, the repair
cost is entirely a federal responsibility (except for cost of obtaining the sand or other material
used in the repair). For damage to be repaired, the Corps must determine that repair has a
favorable benefit-cost ratio. Local sponsors assume any rehabilitation cost for damage to an
active project attributable to deficient maintenance.
A common issue under RIP is that nonfederal sponsors often are interested in not only repairing
but also making modifications and improvements to provide more protection, which is prohibited
under RIP. The Corps’ authority is expressly restricted to repair or restoration to the pre-disaster
level of protection; no betterments or levee setbacks are allowed under this authority. The RIP
program is not designed to evaluate the federal interest in investments to further reduce the flood
32
The Corps also has other limited authorities related to emergency response (e.g., an Emergency Streambank and
Shoreline Erosion Protection program) and recovery (e.g., a Snagging and Clearing for Flood Control program).
3334
29
The Corps also has other limited authorities related to emergency response (e.g., an Emergency Streambank and
Shoreline Erosion Protection program) and recovery (e.g., a Snagging and Clearing for Flood Control program).
30
For more information on the Corps’ drought related authorities and actions, see CRS Report RL34580, Drought in
the United States: Causes and Issues for Congress, by Peter Folger, Betsy A. Cody, and Nicole T. Carter.
31
For more information on the roles of the Corps and other federal agencies in levees, see CRS Report R41752, Locally
Operated Levees: Issues and Federal Programs, by Natalie Keegan et al.
3432
33 U.S.C. §701n. For more on RIP, see U.S. Army Corps of Engineers, Engineer Regulation 500-1-1, Emergency
Employment of Army and Other Resources Civil Emergency Management Program.
3533
An aspect of RIP implementation receiving attention is the Corps’ guidance on vegetation on levees. Some levee
owners are having difficulty conducting regular maintenance and emergency repairs while also complying with
environmental laws, such as the Endangered Species Act. In some areas, the vegetation on and near levees provides
species habitat and other environmental benefits. This and other environmental issues associated with levee
maintenance are beyond the scope of this report.
3634
Corps data provided to CRS on April 30, 2010. In January 2009, the Corps published a temporary extension of RIP
to locally operated levees with deficient conditions if the owner is making system-wide improvements. It is available at
http://www.iwr.usace.army.mil/nfrmp/docs/HQS-ECOPY3I50-Exchange-01132009-162045.pdf.
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For locally constructed projects, 80% of the cost to repair the damage is paid using federal funds
and 20% by the levee owner (as shown in Table 2). For federally constructed projects, the repair
cost is entirely a federal responsibility (except for cost of obtaining the sand or other material
used in the repair). For damage to be repaired, the Corps must determine that repair has a
favorable benefit-cost ratio. Local sponsors assume any rehabilitation cost for damage to an
active project attributable to deficient maintenance.
A common issue under RIP is that nonfederal sponsors often are interested in not only repairing
but also making modifications and improvements to provide more protection, which is prohibited
under RIP. The Corps’ authority is expressly restricted to repair or restoration to the pre-disaster
level of protection; no betterments or levee setbacks are allowed under this authority. The RIP
program is not designed to evaluate the federal interest in investments to further reduce the flood
risk at a location. If federal participation is sought in increasing protection, the typical route
would be to pursue a Corps flood damage reduction study, thus triggering the previously
described standard Corps project delivery process and the related cost-sharing.
Environmental Infrastructure/Municipal Water and
Wastewater Projects
Since 1992 Congress has authorized and provided the Corps with funds to assist with design and
construction of municipal drinking water and wastewater infrastructure projects (including
treatment facilities such as recycling and desalination plants, and distribution and collection
facilities such as stormwater collection and recycled water distribution) and surface water
protection and development projects. These projects are broadly labeled environmental
infrastructure. Although no Administration has included environmental infrastructure in a Corps
budget request since the first authorization in 1992, Congress regularly includes Corps
environmental infrastructure funds in appropriations bills. Environmental infrastructure projects
repeatedly have been called out by various Administrations as a low priority for the agency and
by the co-chairs of the National Commission on Fiscal Responsibility and Reform.3735
Most Corps environmental infrastructure projects are authorized for a specific geographic
location (e.g., city or county) under Section 219 of WRDA 1992 (P.L. 102-580), as amended;
however, other similar authorities, sometimes covering regions or states, exist in multiple sections
of WRDAs and in select Energy and Water Development appropriations acts. Management of the
Corps and nonfederal financing varies according to the specifics of the authorization. Under
Section 219, the Corps performs the authorized work; for environmental infrastructure projects
authorized in other provisions, the Corps often can use appropriated funds to reimburse
nonfederal sponsors for work they perform.
Since 1992, Congress has authorized the Corps to contribute to more than 400 of these projects
and programs, with authorized appropriations totaling more than $5 billion. The Corps received
$140 million for environmental infrastructure projects in FY2010 and $200 million in the
American Recovery and Reinvestment Act of 2009 (P.L. 111-5). The Administration did not fund
any environmental infrastructure activities in its FY2013 work plan.
Congress recommended $44
million for these projects in Rules Committee Print 113-32, accompanying the Consolidated
Appropriations Act, 2014 (P.L. 113-76).
35
National Commission on Fiscal Responsibility, CoChairs’ Proposal: $200 Billion in Illustrative Savings, Draft
Document, November 12, 2010, http://www.fiscalcommission.gov/news/cochairs-proposal.
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Because environmental infrastructure activities are not traditional Corps water resources projects,
they are not subject to the Corps planning process (e.g., a benefit-cost analysis is not performed),
or to the deauthorization process previously described. The projects, however, are subject to
federal laws, such as the National Environmental Policy Act. As indicated in Table 32, most Corps
environmental infrastructure financing is 75% federal and 25% nonfederal.
37
National Commission on Fiscal Responsibility, CoChairs’ Proposal: $200 Billion in Illustrative Savings, Draft
Document, November 12, 2010, http://www.fiscalcommission.gov/news/cochairs-proposal.
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Appendix. Evolution of the Army Corps Civil
Works Mission
The Corps’ oldest civil responsibilities are creating navigable channels and flood control projects.
Navigation projects include river deepening, channel widening, lock expansion, dam operations,
and disposal of dredged material. Flood control projects are intended to reduce riverine and
coastal storm damage; these projects range from levees and floodwalls to dams and river
channelization. Many Corps projects are multipurpose—that is, they provide water supply,
recreation, and hydropower in addition to navigation or flood control. Its environmental activities
involve wetlands and aquatic ecosystem restoration and environmental mitigation activities for
Corps facilities. The agency’s regulatory responsibility for navigable waters extends to issuing
permits for private actions that might affect wetlands and other waters of the United States.
Navigation and Flood Control (1802-1950s)
In the 19th century, the Corps’ mission evolved into civil and military building for the nation. In
1824, Congress passed legislation charging military engineers with planning roads and canals to
move goods and people. In 1850, Congress directed the Corps to engage in its first planning
exercise—flood control for the lower Mississippi River. During the 1920s, Congress expanded
the Corps’ ability to incorporate hydropower into multipurpose projects and authorized the
agency to undertake comprehensive surveys to establish river-basin development plans. The
modern era of federal flood control emerged with the Flood Control Act of 1936 (49 Stat. 1570),
which declared flood control a “proper” federal activity in the national interest. The 1944 Flood
Control Act (33 U.S.C. §708) significantly augmented the Corps’ involvement in large
multipurpose projects and authorized agreements for the temporary use of surplus water. The
Flood Control Act of 1950 (33 U.S.C. §701n) began the Corps’ emergency operations through
authorization for flood preparedness and emergency operations.3836 The Water Supply Act of 1958
(43 U.S.C. §390b) gave the Corps authority to include some storage for municipal and industrial
water supply in reservoir projects at 100% local cost.
Changing Priorities (1960-1986)
By the late 1960s, construction of major waterworks had declined. Changing national priorities
and local needs, increasing construction costs, and completed projects at most prime locations
decreased the attractiveness of water projects. Water supply for traditional off-stream uses, such
as domestic, commercial, industrial, and agricultural uses, was increasingly in direct competition
with in-stream uses, such as recreation, fisheries, and wildlife habitat. From 1970 to 1985,
Congress authorized no major water projects, scaled back several authorized projects, and passed
laws that altered project operations and water delivery programs to protect the environment. The
1970s marked a transformation in Corps project planning. The 1969 National Environmental
Policy Act and the Endangered Species Act of 1973 (16 U.S.C. §1531) required federal agencies
to consider environmental impacts, increase public participation in planning, and consult with
other federal agencies. Executive orders (E.O. 11988 and E.O. 11990) united the goals of
reducing flood losses and environmental damage by recognizing the value of wetlands and
3836
Emergency response activities are also conducted under the Disaster Relief Act of 1974 (42 U.S.C. §5121), also
known as the Stafford Disaster and Emergency Assistance Act.
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required federal agencies to evaluate potential effects of actions on floodplains and to minimize
impacts on wetlands.
Corps Regulatory Activities: Permits and Their Authorities
The Corps has several different regulatory responsibilities and issues several different types of permits. Sections 10
and 13 of the Rivers and Harbors Act of 1899 (22 U.S.C. §407) require that a permit be obtained from the Corps for
alteration or obstruction of and refuse discharge in U.S. navigable waters. The Corps also has regulatory
responsibilities under other laws, notably Section 404 of the Clean Water Act (33 U.S.C. §1344), which requires a
permit for dredging or filling activities into waters of the United States. Since the mid-1960s, court decisions and
administrative actions have altered the jurisdictional reach of the Corps’ regulatory program. For more information
on the Corps’ Clean Water Act authorities, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits
Program: Issues and Regulatory Developments, by Claudia Copeland and CRS Report RL33483, Wetlands: An Overview of
Issues, by Claudia Copeland. The Corps also regulates and authorizes disposal of materials into the ocean under the
Marine Protection Research and Sanctuaries Act; for more information, see CRS Report RS20028, Ocean Dumping Act:
A Summary of the Law, by Claudia Copeland.
Environmental Mission and Local Responsibility (1986-2000)
Congress fundamentally transformed the ground rules for Corps water project planning and
funding through WRDA 1986 (33 U.S.C. §2211) by establishing new cost-share formulas,
resulting in greater financial and decision-making roles for local stakeholders. WRDA 1986
reestablished the tradition of a biennial omnibus authorization bill. Congress has since enacted
WRDAs in 1988, 1990, 1992, 1996, 1999, 2000, and 2007. WRDA 1986 also provided the Corps
with authority to determine if changes can be made in existing structures or operations to improve
environmental quality. WRDA 1990 (33 U.S.C. §§1252, 2316) explicitly expanded the Corps’
mission to include environmental protection and increased the Corps’ responsibility for
contamination cleanup, dredged material disposal, and hazardous waste management. WRDA
1992 (33 U.S.C. §2326) authorized the Corps to use the “spoils” from dredging in implementing
projects for protecting, restoring, and creating aquatic and ecologically related habitats, including
wetlands. WRDA 1996 (33 U.S.C. §2330) gave the Corps the authority to undertake aquatic
ecosystem restoration projects. While the Corps has been involved with numerous environmental
restoration projects in recent years, WRDA 2000 approved a restoration program for the Florida
Everglades that represented the agency’s first multiyear, multibillion-dollar effort of this type.
These legislative changes have given the Corps an aquatic ecosystem restoration and
environmental protection mission.
Evolving Demands (2001-present)
The agency’s aging infrastructure and efforts to enhance the security of its infrastructure from
terrorism and natural threats have expanded Corps activities in infrastructure rehabilitation,
maintenance, and protection. WRDA 2007 continued the expansion of the Corps’ ecosystem
restoration activities by authorizing billions of dollars for ecosystem restoration activities,
including large-scale efforts in coastal Louisiana and in the Upper Mississippi River. The Corps
also retooled its long-standing flood control mission to use a flood risk management approach.
This was undertaken in response to congressional direction in WRDA 2007 and disasters like
Hurricanes Katrina, Rita, and Ike and the significant floods in the Midwest. This approach
emphasizes a greater appreciation and accountability for the shared responsibilities across levels
of government for managing flood. The regularity with which the Corps has received significant
congressional appropriations for natural disaster response has increased attention to its role in
emergency response, infrastructure repair, and post-disaster recovery.
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Limited Corps Role in NFIP Levee Data Certification
The Corps currently has a limited role in the steps leading up to levee accreditation by the Federal Emergency
Management Agency (FEMA) for FEMA’s floodmaps for the National Flood Insurance Program (NFIP). Levee
accreditation determines how the levees are shown on the NFIP maps which are used to determine flood insurance
premiums and mandatory purchase requirements. Since late 2005, FEMA has increased the amount of information it
requires to accredit a levee as providing protection for the 1% chance (100-year) flood. In particular, it requests more
information on the structural integrity of the levee and the hydrology and hydraulics to which the levee is exposed
(44 C.F.R. 65.10 (b)).
Preparing NFIP levee accreditation packages, including data certifications, is the responsibility of the levee owner.
Local owners of some levees previously accredited by FEMA are having trouble obtaining and paying for accreditation.
They face a lack of readily available data on their levees’ construction, materials, and structural integrity and are
confronting assessments indicating a lower level of protection than previously thought. Prior to 2006, FEMA often had
accepted the Corps’ inspection of levees for its Rehabilitation and Inspection Program (RIP) as sufficient for the data
certification used as the basis for FEMA’s levee accreditation. Since 2005, Corps RIP inspections are insufficient to
meet the additional information sought by FEMA for levee accreditation. In Section 100226 of P.L. 112-141 (BiggertWaters Flood Insurance Reform Act of 2012), Congress called for the creation of a Flood Protection Structure
Accreditation Task Force. Among its duties is the development of a process to better align the data collected by the
Corps RIP inspections with the FEMA requirements. The task force released an interim report in January 2013. The
act required the task force to transmit to Congress by July 2013 a final report. As of early October 2013, the final
report was undergoing review within the Administration and had not been delivered to Congressa final report, which was delivered in November 2013. The
report identified a number of actions to improve data exchange and methodologies of the two agencies, while also
stressing that the two agencies and their programs are fundamentally different authorities with different purposes,
which ultimately limits their alignment.
Some levee owners have looked to the Corps to assist with levee data certification. The Corps does perform data
certification for federally operated levees, for locally operated levees that are part of a larger ongoing Corps study or
project, and at the request of another federal agency. The Corps currently has no general authority to perform NFIPcompliant data certifications using discretionary appropriations for locally operated levees and is restricted from
performing FEMA data certification on a reimbursable basis for nonfederal entities if the work can be provided by the
private sector. This restriction is established for all Corps civil works activities of Section 211 of WRDA 2000 (P.L.
106-541, 31 U.S.C. §6505), commonly known as the Thomas Amendment. Whether the Corps should be authorized
to perform NFIP levee data certifications for locally operated levees (as provided for in S. 601) and who would bear
or share the costs, are matters of active debate.
It is unknown whether the cost for the Corps to perform the certification would be less than if a private sector firm
performed the certification. The Corps may be able to perform the data certification at a lower cost if it already has
some of the data (e.g., for Corps-constructed projects) and if the private sector’s cost is significantly influenced by
liability protection.
Author Contact Information
Nicole T. Carter
Specialist in Natural Resources Policy
ncarter@crs.loc.gov, 7-0854
Congressional Research Service
Charles V. Stern
Specialist in Natural Resources Policy
cstern@crs.loc.gov, 7-7786
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