Redirecting Army Corps of Engineers Civil Works Resources During National Emergencies

Redirecting Army Corps of Engineers Civil Works Resources During National Emergencies

Updated February 26, 2019
Redirecting Army Corps of Engineers Civil Works Resources
During National Emergencies
In January 2019, news outlets reported that the Trump
accordance with the National Emergencies Act [50
Administration was investigating redirecting U.S. Army
U.S.C. 1601 et seq.] that requires or may require use
Corps of Engineers (USACE) civil works funds to construct
of the Armed Forces, the Secretary, without regard
physical barriers along the U.S.-Mexico border. USACE is
to any other provision of law, may (1) terminate or
an agency in the Department of Defense (DOD) that
defer the construction, operation, maintenance, or
performs both military and civil works activities. Section
repair of any Department of the Army civil works
923 of the Water Resources Development Act of 1986
project that he deems not essential to the national
(WRDA 1986; 33 U.S.C. §2293) provides the Secretary of
defense, and (2) apply the resources of the
the Army authority to redirect civil works resources in the
Department of the Army’s civil works program,
event of a declared war or national emergency that requires
including funds, personnel, and equipment, to
or may require use of the Armed Forces. On February 15,
construct or assist in the construction, operation,
2019, President Trump declared a national emergency at the
maintenance, and repair of authorized civil works,
southern border; 33 U.S.C. §2293 was not among the
authorities invoked in the President’s proclamation.
military construction, and civil defense projects that

are essential to the national defense.
In 1985 and 1986, during deliberations on the proposed
If 33 U.S.C. §2293 were to be used, the Administration’s
authority for the Secretary of the Army to redirect civil
interpretation of the legal authority provided in 33 U.S.C.
works resources, the authority was discussed as a means to
§2293 and policy decisions regarding the use of the
more easily draw upon civil works resources to meet
authority are among the factors that might shape which
mobilization construction requirements in times of war and
USACE budget accounts and which civil works projects
national emergencies (e.g., building barracks for mobilized
would be affected. As previously noted, there is no publicly
reserve units). The authority appears not to have been used
available implementation guidance regarding the process
since enactment. In January 2019, USACE indicated it had
for the Secretary of the Army to use this authority. Beyond
no information on past uses of the authority, and was
requiring that the Secretary deem the terminated or deferred
unable to provide current implementation guidance for the
civil works project as not essential to national defense, the
authority. Among the issues for Congress that might be
language in 33 U.S.C. §2293 does not specify which
raised if 33 U.S.C. §2293 were to be invoked is the effect
USACE civil works budget accounts may be tapped or
that a redirection of funds might have on USACE’s water
which types of projects may be terminated or deferred.
resource projects. USACE civil works responsibilities
Current, publicly available FY2019 information on USACE
consist primarily of three types of water resource projects:
financial resources is limited (e.g., no information on
improvements for supporting commercial navigation,
current obligated and unobligated amounts in USACE civil
measures to reduce flood damage, and restoration of aquatic
works accounts or at the project level). According to the
ecosystems.
FY2018 United States Army Corps of Engineers—Civil
Works Annual Financial Report, the agency had $37.7
This CRS product provides a primer on the authority to
billion in civil works funding (including emergency
redirect civil works resources, USACE civil works funding,
supplemental funds) available for expenditure across all
and the legislative history of 33 U.S.C. §2293. It also
USACE civil works accounts in FY2018.
discusses ways other than 33 U.S.C. §2293 that USACE has
been or could be involved in wall or fence construction
Congressional Notification
along the U.S.-Mexico border. For a broader discussion of
Pursuant to 33 U.S.C. §2293(b), the Secretary of the Army
issues for Congress related to using various authorities and
is required to immediately notify the “appropriate
DOD funding for border wall or barrier construction, see
committees of Congress” of any action taken pursuant to
CRS Legal Sidebar LSB10242, Can the Department of
the authority. The Secretary also is required to cease using
Defense Build the Border Wall?
33 U.S.C. §2293 authorities within 180 days of the end of
Authority to Redirect Resources
the state of war or termination of the national emergency
(pursuant to 50 U.S.C. §1622).
In 1986, Congress provided the Secretary authority to
terminate or defer certain civil works projects and redirect
Civil Works Funding
these resources. Specifically, 33 U.S.C. §2293(a) states:
USACE uses most of its civil works appropriations to work
on specific studies and projects authorized by Congress.
In the event of a declaration of war or a declaration
Congress typically funds USACE civil works activities
by the President of a national emergency in
through multiple accounts in annual Energy and Water
https://crsreports.congress.gov

Redirecting Army Corps of Engineers Civil Works Resources During National Emergencies
Development appropriations acts (e.g., $7 billion for
Although Congress in annual and supplemental
USACE civil works accounts in the Energy and Water,
appropriations bills, such as P.L. 115-244 and BBA 2018,
Legislative Branch, and Military Construction and Veterans
may condition the use of appropriated civil works funds
Affairs Appropriations Act, 2019 [P.L. 115-244]). In late
(e.g., geographic eligibility criteria for the use of BBA 2018
2018, USACE published an FY2019 work plan for its civil
funds), a President may choose to declare a national
works activities. The work plan identified specific USACE
emergency and have the Secretary of the Army exercise the
projects to receive the funds that Congress provided in P.L.
authority in 33 U.S.C. §2293 to redirect funds and resources
115-244. Similar to recent annual Energy and Water
away from civil works projects deemed not essential to the
Development Appropriations acts, P.L. 115-244 restricts
national defense.
the agency’s reprogramming and use of funds (e.g.,
Sections 101, 102, and 103 of Title I of Division A, Title I
Legislative History of 33 U.S.C. §2293
of P.L. 115-244).
The authority to redirect civil works resources during a
declared war or national emergency was submitted by the
Since FY2005, Congress has expanded the use of
Reagan Administration in February 1985 as part of its
emergency supplemental appropriations legislation to fund
proposal for a water resources development bill. The Senate
USACE to perform not only flood response, but also long-
authorizing committee’s reported WRDA 1986 legislation
term flood recovery projects (e.g., constructing new flood
(S. 1567, 99th Congress) identified a declared war as the
control projects) in the wake of various flood disasters.
circumstances in which the authority to redirect civil works
These funds are provided directly to USACE civil works
funds would become available. An amendment on the
accounts. These are not Federal Emergency Management
Senate floor expanded the provision to include a declared
Agency funds or funding connected to the Disaster Relief
national emergency. Other aspects of the legislative history
Fund. (For more on disaster relief funding, see CRS Report
of 33 U.S.C. §2293 from the mid-1980s that may shape
R41981, Congressional Primer on Responding to Major
perspectives on the authority include statements describing
Disasters and Emergencies.)
the anticipated scope and use of the authority.
In February 2018, in the Bipartisan Budget Act of 2018
USACE and Border Wall Construction
(BBA 2018; P.L. 115-123), Congress appropriated more
Other departments and agencies often call upon USACE’s
than $17 billion in emergency supplemental appropriations
engineering and contracting expertise. For example,
to USACE civil works accounts. Congress specifically
USACE has the lead under the National Response
appropriated $15 billion in BBA 2018 funds for the
Framework for public works and engineering. In these
USACE Construction account for use on construction of
circumstances, the requesting department or agency uses its
flood and storm damage reduction projects. The use of
own funds to pay for the work performed by USACE.
BBA 2018 study and construction funds was limited to
flood and storm damage reduction projects in states and
USACE has been involved in past border security
territories affected by three hurricanes in 2017 (Harvey,
construction efforts, largely through work performed for the
Irma, and Maria), and to states and territories affected by
Department of Homeland Security. USACE performs this
more than one flood-related major disaster declared
work on a reimbursable basis; that is, there is no indication
pursuant to the Robert T. Stafford Disaster Relief and
that USACE civil works project funds have been used
Emergency Assistance Act (42 U.S.C. §§5121 et seq.) in
directly for past border wall or fencing construction.
calendar years 2014, 2015, 2016, or 2017. The Stafford Act
declarations are a BBA 2018-established requirement for
Another potential avenue for USACE involvement in
states and territories to qualify for some of the BBA 2018
border wall or barrier construction is through the military
funds; the BBA 2018 funds for USACE civil works are not
construction authorities in the event of a national
derived from Stafford Act-related authorities or funds.
emergency (e.g., 10 U.S.C. §2808). For more on the
military construction authorities, see CRS Insight IN11017,
BBA 2018 also established other conditions that apply
Military Construction Funding in the Event of a National
specifically to the BBA 2018 funds for USACE, such as
Emergency. Commitment of USACE staff, expertise, and
waiving the nonfederal cost-sharing requirements for
resources to border wall or barrier construction may raise
USACE construction projects in Puerto Rico. From July
questions about USACE readiness and capabilities to
2018 through September 2018, USACE released a series of
perform its military, civil works, and disaster response
tables identifying the projects on which the agency
roles. USACE readiness is an example of potential tradeoffs
anticipated using the BBA 2018 funds. The table for the
that the 116th Congress and the Trump Administration face
$15 billion in USACE construction funds showed flood and
as part of deliberation on approaches to manage
storm damage reduction projects representing $13.9 billion
immigration enforcement and other activities at the U.S.-
(e.g., $4.9 billion for projects in Texas, $2.5 billion for
Mexico border.
projects in Puerto Rico, $2.4 billion for projects in
California). For more on USACE civil works budget
accounts and appropriations, including BBA 2018 funds
Nicole T. Carter, Specialist in Natural Resources Policy
and related projects, see CRS Report R45326, Army Corps
IF11084
of Engineers Annual and Supplemental Appropriations:
Issues for Congress.

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Redirecting Army Corps of Engineers Civil Works Resources During National Emergencies

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