Contents

• Introduction
• Primer on USACE Activities
• USACE Projects
• USACE Environmental Infrastructure Assistance
• Other USACE Roles and Responsibilities
• Characteristics of USACE Federal Water Resource Projects and USACE Assistance for Nonfederal Environmental Infrastructure
• Process for Federal Water Resource Projects
• Study Phase
• Design Phase
• Construction Phase
• Changes During Construction
• Operations Phase
• USACE Rehabilitation Program for Flood Control and Storm Damage Protection Projects
• Modification to Completed Projects
• USACE Modification to Completed Projects
• Non-USACE Modification to Completed Projects
• Deauthorization and Divestiture
• Process for Continuing Authorities Program Projects and Other Small Projects
• Continuing Authorities Programs
• Other Small Project Authorities
• Process for Assistance for Nonfederal Environmental Infrastructure
• Concluding Considerations
• Nonfederal Responsibilities
• Flood Risk Management
• Water Supply and Conservation
• EI Assistance

Summary

Civil responsibilities of the U.S. Army Corps of Engineers (USACE) include undertaking federal water resource development projects and assisting nonfederal environmental infrastructure (EI, typically municipal water and wastewater) projects, among others. This report discusses the processes for USACE projects and assistance.

Authorization and Appropriations. Congress often considers new USACE authorization legislation biennially and discretionary USACE appropriations annually. The authorization bill is typically titled a Water Resources Development Act (WRDA). After inclusion of a study, project, project modification, or EI assistance authorization in an enacted WRDA, USACE action on the authorization usually requires federal funding. Congress typically funds a subset of the authorized USACE EI activities through annual Energy and Water Development appropriations acts.

Federal Water Resource Projects. USACE develops federal water resource projects principally to (1) improve navigable channels, (2) reduce flood risks along rivers and coasts, and (3) restore aquatic ecosystems. These federal projects may have additional project benefits; for example, some multipurpose projects may serve water supply storage, hydropower, and recreation purposes, among others.

Standard Process for USACE Federal Water Resource Projects

Source: Congressional Research Service.

The standard process for a USACE project consists of four phases: study, design, construction, and operations, as shown in the figure. This process generally requires two separate congressional authorizations—one for studying feasibility and a subsequent one for undertaking the project (e.g., construction)—as well as appropriations for each phase. An exception to the required two-authorization process is smaller projects (i.e., typically projects with a federal cost less than $15 million) that can be performed under USACE's continuing authorities programs; these projects also largely follow the process described in this report.

For most activities, Congress requires a nonfederal sponsor to share some portion of study and construction costs and to provide the necessary real estate interests for the project (e.g., lands, rights-of-way). The standard study and construction cost-share requirements vary by project type.

Assistance for Nonfederal Environmental Infrastructure. In addition to authorizing federal water resource projects, Congress has authorized USACE to assist with the design and construction of certain nonfederal publicly owned and operated water-related infrastructure (i.e., EI assistance). WRDAs have contained EI assistance authorizations mostly related to water distribution works, stormwater management, surface water protection, and environmental restoration in specified municipalities, counties, and states. Following authorization, appropriations for EI assistance are required before USACE can proceed, generally at a 75% federal cost share. USACE provides assistance typically by contracting for design and/or construction work of the nonfederal project.

Introduction

The U.S. Army Corps of Engineers (USACE) is an agency within the Department of Defense with both military and civil works responsibilities. As part of USACE's civil works responsibilities, the agency undertakes federal water resource projects that are authorized and funded by appropriations acts passed by Congress. Figure 1 describes the three primary purposes of most federal water resource projects performed by USACE—navigation, flood risk management, and aquatic ecosystem restoration. In addition to one of these three primary purposes, USACE projects may have additional benefits; for example, some multipurpose projects may serve water supply storage, hydropower, and recreation purposes, as well as one or more of the three primary USACE project purposes. In legislation since 1992, Congress has authorized USACE to provide assistance to nonfederal, public environmental infrastructure (EI) projects, consisting primarily of design and construction of municipal water and wastewater infrastructure; this USACE assistance for others' projects is not shown in Figure 1, which is focused on USACE projects' primary purposes.

Figure 1. Primary Purposes of USACE Federal Water Resource Projects

Source: Congressional Research Service. Notes: U.S. Army Corps of Engineers (USACE) projects may have purposes in addition to one or more of the primary purposes shown.

The Assistant Secretary of the Army for Civil Works (ASACW) provides civilian oversight of USACE's civil works projects. A military Chief of Engineers commands USACE's civil and military operations. The agency's responsibilities are organized into regional divisions, which are further divided into local districts.¹ Many of the districts and divisions perform both military and civil works activities and are led by Army officers.²

Congress typically legislates on authorization of most USACE federal water resource projects and USACE assistance for nonfederal EI through Water Resources Development Acts (WRDAs).³ Congress often considers a WRDA biennially. Appropriations are typically provided through annual Energy and Water Development appropriations acts and are at times provided through supplemental appropriations acts.

This report summarizes the processes for both USACE federal water resource projects and USACE assistance for nonfederal EI.⁴ After a primer on the range of USACE activities and their characteristics, this report discusses the process for USACE to

• undertake federal water resource projects that require project-specific congressional authorizations;
• undertake small federal water resource projects under continuing authorities programs (CAPs), typically with federal project costs less than $15 million; and
• assist with nonfederal EI.

Primer on USACE Activities

USACE Projects

USACE's water resource activities have evolved with the changing needs of the nation. In the 19^th century, Congress first authorized USACE to undertake federal projects to improve navigation channels, thereby facilitating the movement of goods between states and for import and export. In the mid-20^th century, Congress began charging the agency to undertake congressionally authorized projects to reduce the damages from riverine floods and coastal storms. Since the 1990s, Congress has authorized USACE to undertake federal projects to restore aquatic ecosystems. Local stakeholders and Members of Congress often are particularly interested in USACE pursuing a federal water resource project, because these projects can have significant local and regional economic benefits and environmental effects. The agency typically works with nonfederal project sponsors in the development of these federal water resource projects. The nonfederal demand for USACE projects and congressional authorization of these projects often exceed available federal appropriations for USACE to complete construction on all authorized projects. In addition to studying and constructing projects, USACE operates and maintains various types of assets. For example, USACE operates more than 700 federally owned dams and improves and maintains roughly 25,000 miles of navigable waterways, channels, and harbors.⁵

While USACE civil works projects and authorities have been concentrated on three principal purposes—navigation, flood risk management, and aquatic ecosystem restoration—some USACE activities may support additional purposes, such as water supply storage (e.g., for agricultural use or municipal and industrial use), hydroelectric generation, fish and wildlife, and recreation. The most common way that USACE infrastructure supports water supply is through storage at a USACE reservoir.⁶ Congress passed the Grace F. Napolitano Priority for Water Supply, Water Conservation, and Drought Resiliency Act of 2024, as Title I, Subtitle B, of Division A of the Thomas R. Carper Water Resources Development Act of 2024 (WRDA 2024; P.L. 118-272). The act's water supply provisions included a declaration of U.S. policy for USACE to maximize opportunities for water supply and conservation measures and drought resilience efforts at and in the operation of the agency's water resource projects. The act also directed the Secretary of the Army to give full consideration to requests and proposals by nonfederal sponsors for USACE to use its authorities to further such measures and efforts in alignment with the authorized purposes of the agency's projects. WRDA 2024 also authorized USACE to conduct specific single-purpose water supply feasibility studies (e.g., to assess the feasibility of USACE projects with water supply as the studies' only purpose, rather than water supply as part of a multipurpose study).⁷ How implementation of the act may affect USACE water supply activities remains to be seen.

USACE Environmental Infrastructure Assistance

In legislation since 1992, Congress has authorized and funded USACE to assist with the design and construction of certain publicly owned and operated water-related infrastructure (i.e., EI assistance). EI assistance is mostly related to projects for water supply and distribution, stormwater management, surface water protection, and environmental restoration, among other purposes. These projects typically are authorized for specified municipalities, counties, or states. Local interests and Members of Congress often pursue cost-shared USACE EI assistance as an alternative to applying for assistance from other federal programs.

Other USACE Roles and Responsibilities

The USACE civil works mission also encompasses the agency's regulatory activities pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344) and the Rivers and Harbors Act of 1899 (33 U.S.C. §403),⁸ as well as the agency's administration of the Formerly Utilized Sites Remedial Action Program (FUSRAP). Through FUSRAP, USACE remediates radiological contamination at nonfederal sites that were used during the early years of the U.S. nuclear weapons program.⁹ Neither FUSRAP nor USACE regulatory activities are addressed in this report. USACE also has authorities to provide technical assistance; these authorities are largely beyond the scope of this report. This report focuses on the processes for USACE federal water resource projects and USACE assistance for nonfederal EI, rather than these other roles and responsibilities.

Characteristics of USACE Federal Water Resource Projects and USACE Assistance for Nonfederal Environmental Infrastructure

USACE implements federal water resource projects for navigation, flood risk management, aquatic ecosystem restoration and for other purposes associated with these projects (e.g., recreation, water supply storage, hydropower). These various federal projects, regardless of which purpose they serve, often follow fairly similar processes for their development and authorization. In contrast, USACE's EI assistance is for work on nonfederal projects; as a result, much of the process for EI assistance is distinct from the process for USACE federal water resource projects. Figure 2 depicts some basic differences in the authorization processes for federal projects and assistance with nonfederal EI projects. USACE implements federal water resource projects pursuant to either project-specific congressional authorizations or without additional congressional authorization for smaller projects (i.e., often less than $15 million of federal costs) under preexisting CAP authorities. For assistance with nonfederal EI projects, Congress must authorize USACE to perform the assistance; that is, Congress authorizes not the nonfederal projects themselves but the assistance for certain nonfederal projects that qualify under the authority. EI assistance authorizations specify the types of projects that may receive assistance and the eligible geographic location of projects. Table 1 provides information on various characteristics for federal water resource projects, small federal water resource projects under CAPs, and EI assistance.

Figure 2. Congressional Authorization for USACE Federal Projects and USACE Assistance for Nonfederal Environmental Infrastructure

Source: Congressional Research Service. Note: USACE = U.S. Army Corps of Engineers.

Process for Federal Water Resource Projects

For USACE federal water resource projects, congressional authorization and appropriations processes are critical actions in a multistep process to deliver a USACE project for navigation, flood risk management, and aquatic ecosystem restoration. This section describes the standard delivery process for USACE federal water resource projects.

Nonfederal project sponsors typically share in study, design, and construction costs of USACE federal projects. The division of these costs and other responsibilities is set out in agreements signed by USACE and the nonfederal sponsors—feasibility cost-share agreements, design agreements, and project partnership agreements (PPAs), respectively. Among the other nonfederal responsibilities for many USACE projects are (1) the provision of land and other real estate interests for most projects and (2) operation, maintenance, repair, rehabilitation, and replacement (OMRR&R). Nonfederal project sponsors generally are state, tribal, or territorial organizations; political subparts of a state or group of states (e.g., local governments); or quasi-public organizations chartered under state law (e.g., port authorities).¹⁰ Congress has authorized that some USACE activities can have nonprofit organizations with local government consent as nonfederal sponsors and that an interstate agency created by compact can serve as a nonfederal sponsor for a navigation project.¹¹ The sponsor must have the legal and financial capability to fulfill the requirements of cost sharing and local cooperation.

The standard USACE project delivery consists of USACE leading the study, design, and construction of congressionally authorized federal water resource projects, as shown in Figure 3. The process shown in Figure 3 is not automatic. Appropriations are required in order to initiate and complete studies, preconstruction engineering and design (PED), and construction; that is, both authorization and appropriations are needed for USACE to proceed. Appropriations are typically provided through annual Energy and Water Development Appropriations acts; at times, they are provided through supplemental appropriations acts. For USACE federal water resource projects, the report accompanying annual appropriations typically identifies with a line item the specific studies and projects to be funded for construction and operations. Congress also may provide additional funding that the Administration can apply to specific congressionally authorized studies and projects pursuant to the accompanying congressional direction. The Administration typically allocates this funding in work plans that are subsequently provided to Congress.

During the operations phase, there may be interest in modifying the USACE project. Modification may take the form of restarting the process shown in Figure 3 (although a new study authority may not be required), or it may entail a nonfederal entity pursuing a nonfederal project that alters the existing federal water resource project.

The remainder of this section describes in more detail the four phases shown in Figure 3. The section then describes how, after construction, USACE can study whether to modify an existing project, or an entity other than USACE can ask permission to modify a USACE project. The section also briefly addresses deauthorization of studies and projects.

Figure 3. Typical Process for USACE Federal Water Resource Projects (process for projects that require project-specific congressional authorization)

Source: Congressional Research Service. Notes: USACE = U.S. Army Corps of Engineers; WRDA = Water Resources Development Act.

Study Phase

The study phase consists of various planning activities to develop enough information to decide whether to recommend to Congress project implementation. This phase includes the development of alternative plans, initial design and cost estimating, economic analysis,¹² environmental analyses, and real estate evaluations, among other activities. Table 2 provides an overview of the study phase.

To proceed with a study, USACE must have an authorization for the study. Congress generally authorizes USACE studies in WRDAs. (See the text box titled "How Studies Are Considered for Inclusion in a WRDA" for information on the process for identifying studies to be included in a WRDA.) The congressional authorizing committees—the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee—also may use a committee resolution to direct USACE to reexamine or restudy a geographic area previously studied by USACE for a similar purpose (33 U.S.C. §542). USACE may initiate studies that review the operations of completed USACE projects without obtaining additional congressional authorization under its general reexamination authority (33 U.S.C. §549a).

The study process consists of the following steps:

• scoping, in which USACE specifies the water resource problems and opportunities and formulates alternative plans to address the problems;
• evaluation and analysis of alternatives, in which USACE evaluates and compares the effects of various plans and chooses a tentatively selected plan;
• assessment of the feasibility of the tentatively selected plan; and
• review and finalization of the feasibility report, which includes review by the USACE division, state and federal agencies, and USACE headquarters and the ASACW.

Once the final feasibility report is available and if it is favorable, the Chief of Engineers signs a recommendation on the project, known as the Chief's report. USACE submits the completed Chief's reports to the congressional authorizing committees (33 U.S.C. §2282a). The Chief of Engineers also transmits the reports to the ASACW and the Office of Management and Budget (OMB) for Administration review.¹³ Since the mid-1990s, Congress has authorized many projects based on Chief's reports prior to completion of project review by the ASACW and OMB.

As part of its consideration of alternatives, USACE evaluates whether a plan is technically feasible, economically justified, and environmentally acceptable. For flood risk reduction projects and navigation projects, USACE performs a benefit-cost analysis to compare the economic benefits of project alternatives to the investment costs of those alternatives. For ecosystem restoration projects, USACE performs a cost-effectiveness analysis to evaluate for each project alternative its associated costs and anticipated environmental benefits.

The USACE feasibility study process often occurs concurrently with the agency's efforts to comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. §§4321 et seq.). NEPA requires federal agencies to fully consider a federal action's significant impacts on the quality of the human environment—and to inform the public of those impacts—before making a final decision. Often USACE integrates into a single document a project's feasibility report and its NEPA documents.

There is no current, definitive, comprehensive, publicly available list of all authorized USACE water resource studies and projects. The status of existing authorizations for a given project or geographic area can be determined by reviewing enacted legislation, deauthorization actions (e.g., construction project deauthorization lists published in the Federal Register), and other relevant documents.

Although a USACE federal water resource project generally must have navigation, flood risk management, or aquatic ecosystem restoration as a primary project purpose, many USACE projects are multipurpose. Other purposes can include recreation, fish and wildlife enhancement, hydropower, agricultural water supply storage, and municipal and industrial water supply storage.

In addition, and separate from the above discussion of the study phase of a USACE federal water resource project, USACE has some technical assistance authorities. These authorities allow the agency to conduct other types of studies and provide technical assistance to nonfederal entities on water resource topics (see text box titled "USACE Technical Assistance, Including Studies and Information"). The information and studies produced pursuant to these authorities generally are not intended to justify a USACE federal water resource project; that is, they generally do not lead to a USACE federal water resource project. These studies and authorities are not discussed further in this report.

Design Phase

USACE preconstruction engineering and design consists of finalizing a project's design, preparing construction plans and specifications, and drafting construction contracts. PED may begin on a project before the project has obtained congressional authorization for construction.¹⁴ PED begins once federal funds are provided to the PED activity and a design agreement is executed between USACE and the nonfederal sponsor. Once funded, the average duration of PED is two years, but the duration varies widely depending on the project's size and complexity. PED costs are shared between the federal and nonfederal sponsor in the same proportion as the cost-share arrangement for the construction phase (see "Construction Phase" discussion below for information on the construction cost-share requirements). During PED, USACE districts prepare a design documentation report, which records the post-feasibility phase final design. The report is the technical basis for the plans and specifications.

Construction Phase

After Congress authorizes a project (typically in a WRDA), federal funds for construction are needed for USACE to proceed with these activities. USACE and the nonfederal sponsor enter into a project partnership agreement for construction of a water resource project. The PPA describes the project and the responsibilities of the government and the nonfederal sponsor in the cost sharing and execution of project construction. Once federal construction funds are available, USACE typically functions as the project manager; that is, USACE staff usually are responsible for leading on construction. Table 3 provides an overview of the USACE construction phase.

Although project management is generally performed by USACE personnel, physical construction is contracted out to private engineering and construction contractors. There are authorities for nonfederal entities to lead on construction of authorized projects (e.g., 33 U.S.C. §2232); however, nonfederal leadership of a project's construction is much less common than USACE leadership.

Table 4 provides the standard construction and operations phase cost-share requirements for the primary project purposes of navigation, flood risk management, and aquatic ecosystem restoration. The table also identifies whether USACE or the nonfederal sponsor is the responsible entity for the operations phase. Table 5 provides the standard construction and operations phase cost-share requirements for other purposes at USACE multipurpose projects; that is, the purposes shown in Table 5 generally are added to a project that has at least one of the three primary purposes of navigation, flood risk management, and aquatic ecosystem restoration. Deviation from the standard cost-sharing arrangements for individual projects often requires specific authorization by Congress.¹⁵

In addition to USACE accepting the nonfederal cost share as required by statute and a project's authorization, USACE has authorities to accept funds from nonfederal sponsors to expedite the delivery of federal water resource projects. These may be advanced funds, accelerated funds, or contributed funds.¹⁶

• Advanced funds are nonfederal funds provided as an advance of the federal share for construction of an authorized water resource project, with eligibility for potential repayment subject to the availability of federal appropriations.¹⁷
• Accelerated funds are nonfederal funds provided in excess of the nonfederal proportional share of costs based on federal funds provided for that year but are within the ultimate required nonfederal cash contribution for the project's phase, thereby allowing work to continue pending the provision of additional federal funds. Credit for accelerated funds is provided if additional federal funding is provided for that project phase.
• Contributed funds are nonfederal funds that are provided and that are above the statutorily required nonfederal cost share, with no credit or repayment authorized for such funds.¹⁸

Changes During Construction

Figure 3 shows a project moving from construction to operations without additional reports required. For many projects, issues may arise during the construction phase that result in USACE developing a post-authorization change report (PACR). That is, a project may undergo some changes after authorization, such as cost increases or the addition of a project purpose (e.g., recreation). USACE may evaluate and document such changes in a PACR. There are various types of PACRs that end in different types of decisions, and approval authority varies based on what has changed, what needs to be analyzed, and whether new congressional authorization is required. If additional congressional authorization is necessary for the changes captured in a PACR, Congress typically authorizes these modifications in a WRDA. For less significant modifications, additional authorization often is not necessary. Section 902 of WRDA 1986, as amended (33 U.S.C. §2280), generally allows for increases in total project costs of up to 20% (after accounting for inflation of construction costs) without additional congressional authorization. If USACE needs more funds to complete a project than the combined 20%- and inflation-adjusted amount, an increase in the congressional authorization of appropriations is likely needed to proceed with the project; for these projects, USACE generally does not pursue additional contracts until Congress has adjusted the authorization of appropriations.

USACE and the nonfederal sponsor enter into a feasibility cost-share agreement to produce these reports. USACE may undertake three types of PACRs during the construction phase: general reevaluation reports (GRRs), limited reevaluation reports (LRRs), and engineering documentation reports (EDRs).

• General Reevaluation Report. A GRR is a reanalysis of a previously completed study, using current planning criteria and policies, which is required due to changed conditions and/or assumptions. The results may affirm the previous plan, reformulate and modify the previous plan, or find that no plan is currently justified. If reauthorization is necessary, the document will be processed in the same manner as a feasibility report and will conclude with a Chief's report as the design document.
• Limited Reevaluation Report. An LRR evaluates a specific portion of a project plan under current policies, criteria, and guidelines and may be limited to economics, environmental effects, or—in rare cases—project formulation. An LRR often ends with a Director's memorandum or Director's report. LRRs documenting the justification for an increase in the project's authorization of appropriations (due to the project costs exceeding the amount allowed under Section 902 of WRDA 1986, as amended) require congressional authorization.
• Engineering Documentation Report. An EDR documents other information when project reformulation is not required and the changes are technical in nature or the reformulation changes are minor.

Operations Phase

Post-construction operations and upkeep responsibilities depend on the type of project. When construction is complete, USACE may own and operate the constructed project (e.g., navigation projects) or operations responsibilities may transfer to the nonfederal sponsor (e.g., most flood damage reduction projects and aquatic ecosystem restoration projects). The responsible entity and the cost-share responsibilities during the operations phase vary by project purpose, as shown in Table 4 and Table 5.

USACE generally uses the term operation and maintenance for the operations phase of federally operated projects and the term operation, maintenance, repair, replacement, and rehabilitation (OMRR&R) for the operations phase of nonfederally operated projects. OMRR&R consists of the suite of activities necessary to maintain the project in sound operating condition. For nonfederally operated projects, USACE prepares an OMRR&R manual for the nonfederal sponsor. During the operations phase, the nonfederal sponsor completes operations reports on a regular basis (e.g., semiannual reports), and USACE periodically inspects the project to assess and evaluate the project's performance and safety during its operating life. For nonfederal flood risk management projects, USACE operates a rehabilitation program to support with federal funding the repair of certain damaged flood control and storm damage reduction facilities, as discussed in the next section.

USACE Rehabilitation Program for Flood Control and Storm Damage Protection Projects

USACE operates a repair program—the P.L. 84-99 Rehabilitation Program—for nonfederal flood control works, including federal water resource projects for which the nonfederal sponsor has assumed OMRR&R. Through the program, USACE can fund the repair of damage by "other than ordinary" water, wind, or wave action to (1) certain nonfederal flood control works (e.g., levees, dams) and (2) federally constructed hurricane and shore protection projects. To be eligible for this assistance, the damaged project must be eligible for and active in the rehabilitation program and the project must have been in an acceptable condition, as inspected and assessed by USACE, at the time of damage. USACE regularly inspects the 1,600 nonfederal levee systems (consisting of 13,000 miles of levees) that participate in the program. The damage rehabilitation program does not fund repairs associated with regular OMRR&R.

Modification to Completed Projects

During a USACE project's operations phase, nonfederal sponsors and other stakeholders may be interested in modifications to the existing project. Often, there is interest in having USACE modify an existing project (e.g., by deepening a federal navigation channel). In some circumstances, a nonfederal entity is interested in undertaking its own modification.

USACE Modification to Completed Projects

USACE can review the operations of completed USACE projects under a reexamination authority (33 U.S.C. §549a), established by Section 216 of the Flood Control Act of 1970 (P.L. 91-611). These reviews are often referred to as Section 216 studies. The reexamination authority allows for review of the operation of USACE-constructed projects for navigation, flood control, water supply, and related purposes when advisable due to significantly changed physical or economic conditions. These USACE studies result in a report to Congress with recommendations on the advisability of modifying the structures or their operation and for improving the quality of the environment in the overall public interest. Congress would need to authorize the changes for USACE to proceed.

Non-USACE Modification to Completed Projects

If a nonfederal entity is interested in altering a USACE civil works project after construction, the entity generally must obtain permission from USACE. USACE's authority to allow alterations to its projects derives from Section 14 of the Rivers and Harbors Act of 1899, also known as Section 408 (based on its codification at 33 U.S.C. §408). This provision states that the Secretary of the Army may "grant permission for the alteration or permanent occupation or use of any of the aforementioned public works when in the judgment of the Secretary such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work."¹⁹ To reach a decision on a Section 408 permission, USACE conducts a technical review of the proposed alteration's effects on the USACE project. Section 408 permissions may be required not only for projects operated and maintained by USACE but also for federally authorized projects that are operated by nonfederal project sponsors (e.g., many USACE-constructed, locally maintained levees).²⁰ At the end of the Section 408 process, USACE chooses to approve or deny permission for the alteration. USACE may attach conditions to its Section 408 permission.

Deauthorization and Divestiture

At times, Congress deauthorizes specific USACE projects or project elements. USACE may conduct a Section 216 study to determine whether to recommend deauthorizing a completed USACE project that no longer serves its congressionally authorized project purposes. If Congress deauthorizes the project, USACE will proceed with a divestiture process.²¹ For example, a few inland waterway locks and dams that no longer support commercial navigation have been deauthorized and divested to nonfederal interests.

Congress also has used WRDAs to deauthorize unconstructed projects and project elements and to deauthorize studies. In previous WRDAs, Congress established various processes to deauthorize existing study and project authorities meeting certain criteria. Some of these deauthorization processes have since been repealed. For example, previously enacted study deauthorizations were repealed by WRDA 2020 (Division AA of P.L. 116-260). Current statutes for deauthorization processes consist of the following:

• Pursuant to statute (33 U.S.C. §579d-2 paragraphs (b)-(e)), the ASACW is to submit a preliminary list of authorized but unconstructed projects or separable elements of projects for deauthorization that meet congressionally specified criteria (e.g., authorization prior to June 10, 2014, which would be before enactment of the Water Resources Reform and Development Act of 2014 [WRRDA 2014; P.L. 113-121]), solicit public comment on the list, prepare a final deauthorization list, submit the list to the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee, and publish the list in the Federal Register. WRDA 2022 (Division H, Title LXXXI, of P.L. 117-263) repealed a separate part of this authority that had provided for an automatic deauthorization of projects after a two-year period for congressional review of the final list. No other step following the transmittal of the list and publication in the Federal Register is specified in the current amended authority.²²
• Pursuant to statute enacted in 2020 (33 U.S.C. §579d-2(f)), projects or separable elements of "antiquated" projects were automatically deauthorized if they met the following criteria: they were authorized for construction prior to November 17, 1986, and either construction had not begun by December 27, 2020, or funds had not been obligated for construction in the 10 years prior to December 27, 2020. As of early 2024, a list of the projects deauthorized by the provision had not been made publicly available.

Process for Continuing Authorities Program Projects and Other Small Projects

Continuing Authorities Programs

USACE can plan, design, and implement certain types of water resource projects without project-specific congressional authorization under CAPs established by Congress. Under CAPs, USACE has authority to plan and implement projects of limited size, cost, scope, and complexity. For most CAP authorities, Congress has limited the project's federal cost and scope, as shown in Table 6.²³ Once funded, CAP projects generally take two to three years for the study phase, and the construction phase often takes two to five years. CAPs typically are referred to by the section number in the bill in which the CAP was first authorized.

CAP projects move through phases: study (feasibility), design and construction, and operations. During the study phase, USACE identifies alternative project plans and develops initial cost estimations, environmental impact analyses, and a real estate evaluation, among other actions to formulate a project. The study phase typically consists of developing a feasibility report as the decision document, in which USACE identifies the preferred project alternative. For CAP projects, USACE can proceed directly to design and construction after the study phase without obtaining specific congressional project authorization. The design and construction phase includes the final project design and specifications, nonfederal real estate acquisition, project contracting, and physical construction.

The study phase is initially federally funded up to $100,000, and then the study cost sharing for most CAPs is 50% nonfederal after executing a feasibility cost-share agreement (see Table 6), with two exceptions. Studies under the Section 204 CAP (i.e., regional sediment management to reduce storm damage) are 0% nonfederal. For studies under Section 111 (prevention/mitigation of shore damage by federal navigation projects), after the first $100,000 in costs, which are federally funded, costs are shared the same as construction of the navigation project causing the damage.

The design and construction phase consists of actions to implement the project, such as design, preparation of contract plans and specifications, permitting, real estate acquisition, contracting, and construction. Near the beginning of the design and construction phase, USACE and the nonfederal sponsor sign a project partnership agreement. Costs for the construction phase are shared as specified in the authorizing legislation for the CAP, as shown in Table 6. Under CAPs, the operations phase is a nonfederal responsibility, except for general navigation feature improvements under the Section 107 CAP.

Although USACE does not need any additional authorization to perform projects under CAPs, Congress in some WRDA bills has included references to specific CAP projects, such as noting that the Secretary shall expedite completion of certain CAP projects.

CAPs are often funded as a program (which leaves USACE with the discretion of which CAP projects to fund); at times, Congress has directed funding to specific CAP projects. As part of the annual Energy and Water Development appropriations process, CAP authorities typically are funded through inclusion of a line item for each CAP in the USACE Construction account in the report accompanying the legislation. At times, some CAPs have been funded through supplemental appropriations (e.g., flood-related CAPs funded in flood-related or disaster-related supplemental appropriations acts).

Other Small Project Authorities

Apart from the regularly funded CAPs previously discussed, Congress has established other authorities that share many CAP characteristics or are authorized in conjunction with CAPs. Below are a few authorities allowing USACE to perform work without project-specific study or project authorization if federal project costs are below a specified amount; the list of programs below is not comprehensive. Although some of these authorities have received funding (e.g., Tribal Partnership Program [TPP]), others have not been funded. A number of these authorities reference economically disadvantaged communities; USACE has developed implementation guidance that defines this term and related criteria,²⁴ and this guidance applies unless more specific direction is provided in law.

Two authorities that have received funding are the TPP and the Community Revitalization Program for Small Projects for Economically Disadvantaged Communities.

• Tribal Partnership Program (TPP). Under this authority, USACE can perform feasibility studies and construct water resource development projects (with a federal cost up to $26 million before congressional authorization is required) that benefit Indian tribes primarily within Indian country or in proximity to Alaska Native villages (33 U.S.C. §2269). Under the TPP, USACE also can perform other types of studies, such as watershed studies and non-feasibility studies, for various purposes. Although the tribal cost sharing varies by activity (e.g., 50% for studies, 25% for water and river basin assessment, 0% for technical assistance and other studies, and consistent with Table 4 and Table 5 for construction and operations), all program activities are subject to tribal ability-to-pay considerations that may reduce or eliminate the tribal cost sharing.²⁵ WRDA 2024 (33 U.S.C. §2269 note) authorized a pilot program for tribes to carry out five TPP projects.
• Community Revitalization Program. Section 165(a) of WRDA 2020 (33 U.S.C. §2281c), as amended, authorized USACE to carry out projects at 100% federal cost under various CAPs for economically disadvantaged communities. The included CAPs are Sections 14, 103, 107, 204, 205, 206, 208, and 1135. On the basis of submissions in response to a 2023 request for project proposals, in 2024, USACE selected 12 projects to proceed under the program.²⁶

Other authorities have been enacted in statute but have not received appropriations in recent years or since being enacted.

• Small Projects for Shoreline and Riverine Protection and Restoration. Section 8103 of WRDA 2022 amended 33 U.S.C. §2332 to authorize USACE to perform shoreline and riverine protection and restoration projects without project-specific congressional authorization for projects with federal costs of $15 million or less. After the first $200,000, which is 100% federal, nonfederal cost sharing is 50%. Nonfederal design and construction cost sharing is consistent with Table 4, except nonfederal costs for design and construction are 10% for projects benefitting economically disadvantaged communities for ecosystem restoration, nonstructural measures, natural or nature-based features, or structural flood and storm damage reduction projects.
• Permanent Measures to Reduce Emergency Flood-Fighting Needs for Communities Subject to Repetitive Flooding. Section 119 of WRDA 2020 authorized USACE to study and perform flood and coastal storm risk management projects for communities that have been subject to two or more flooding events in any 10-year period and that have received USACE emergency flood-fighting assistance. The authority requires that the project have a benefit-to-cost ratio greater than 1.0 (and allows for affected communities to pay, or provide contributions equal to, an amount sufficient to reduce the remaining project costs enough to meet the benefit-to-cost requirement). USACE can study, design, and perform the projects without project-specific congressional authorization for projects with federal costs of $17.5 million or less. After the first $100,000, which is 100% federal, nonfederal cost sharing is 50%. Nonfederal design and construction cost sharing is consistent with Table 4. When planning the project, to the maximum extent practicable, USACE is to incorporate natural features or nature-based features, or a combination of such features and nonstructural features, that avoid or reduce at least 50% of flood or storm damage in one or more of the alternatives included in the final alternatives evaluated.
• Small Water Storage Projects. Under Section 155 of WRDA 2020 (33 U.S.C. §2347c), USACE may study and construct new—or enlarge existing—small water storage projects for the purpose of flood risk management, ecological benefit, water management, water conservation, or water supply (including agricultural or municipal and industrial water supply). Implementation guidance for the Section 155 program indicates that the policy of USACE not conducting single-purpose water supply studies is superseded for purposes of this program.²⁷ The water storage capacity of a project under the program is to be not less than 2,000 acre-feet and not more than 30,000 acre-feet.²⁸ The program is authorized to be appropriated $130 million annually through FY2030. The per project federal cost limit is $65 million. The nonfederal cost share for studies is 50% after the first $100,000, and the cost sharing for design and construction is consistent with Table 5.
• Stormwater Projects. Section 1108 of WRDA 2024 (33 U.S.C. §2289b) authorized a CAP for projects to control, retain, and reuse stormwater associated with flood control. The per project federal cost limit is $10 million, the nonfederal cost sharing for construction is 35%, and the program's annual authorization of appropriations is $50 million. After the first $100,000, which is 100% federal, the nonfederal cost share for studies is 50%.

Process for Assistance for Nonfederal Environmental Infrastructure

Congress has authorized and appropriated funding for USACE EI assistance for the design and construction of certain nonfederal infrastructure in specified municipalities, counties, and states. These authorizations typically appear in a WRDA.

The authorized assistance supports different nonfederal projects at publicly owned and operated facilities. These nonfederal projects often may include construction of water distribution works, stormwater management, surface water protection, and environmental restoration, among other activities. CRS estimates that there are 600 EI assistance authorities with cumulative authorizations of appropriations totaling approximately $18 billion.²⁹

USACE evaluates a proposed EI activity's eligibility for assistance by identifying whether an EI assistance authorization exists for the nonfederal project's geographic area and whether the proposed work is an eligible type of assistance provided for in the specific EI authorization. The EI authorization's specifics determine the nature of USACE's involvement and the nonfederal cost share. USACE is typically authorized to perform design or design and construction work with USACE funds. For certain programmatic authorities, USACE may use appropriated funds to reimburse nonfederal sponsors for work they perform.

Most USACE EI assistance requires cost sharing at 75% federal and 25% nonfederal, and the nonfederal sponsor—the owner of the constructed facility—is responsible for operation and maintenance. Unlike traditional USACE water resource projects, EI assistance is not subject to the USACE planning process (e.g., it does not require a feasibility study); however, other federal laws, including NEPA, apply to EI assistance. USACE and the nonfederal sponsors sign either a design cost-share agreement or a design and construction cost-share agreement before EI assistance may be initiated.

For more information on USACE EI assistance, including a list of authorities and appropriations information, see CRS Report R47162, Overview of U.S. Army Corps of Engineers Environmental Infrastructure (EI) Assistance, by Anna E. Normand.

Concluding Considerations

Congress regularly considers during its WRDA deliberations various topics related to the processes for USACE federal water resource projects and USACE assistance with nonfederal EI. Some examples of process-related topics include nonfederal responsibilities, USACE's role in water supply and conservation, and the future of USACE EI assistance.

Nonfederal Responsibilities

Nonfederal sponsors are often interested in altering their responsibilities associated with USACE federal water resource projects. Among the changes that some stakeholders support are reducing the nonfederal cost share for specific projects or certain types of projects (e.g., projects that benefit economically disadvantaged communities). Some stakeholders view the current nonfederal cost-share requirements as prohibitive or burdensome. Other stakeholders support nonfederal beneficiaries continuing to contribute to the costs of USACE projects, as set out in current statute, as a lowering of nonfederal cost sharing may reduce the number of studies and projects that USACE can perform with available federal appropriations.

Flood Risk Management

As described in this report, Congress primarily directs USACE's flood risk management through geographically specific study and project authorizations. The current process for USACE flood risk management projects at times raises questions regarding how effectively, efficiently, and equitably the agency's planned and funded projects are reducing the nation's current and future flood risk.³⁰ For example, in a 2024 report on community relocation away from environmentally high-risk areas, the National Academies of Sciences, Engineering, and Medicine stated, "the requirement that USACE seek congressional authorization to address flood risk in a specific locality, with no organic statute governing overall authority of USACE to determine its own agenda, has resulted in piecemeal and inequitable distribution of [flood risk management] projects."³¹ Others also have questioned whether the USACE project process favors certain types of approaches to reducing flood risk, such as structural approaches rather than nonstructural or nature-based approaches.

Water Supply and Conservation

Pursuant to Section 221 of WRDA 2020, USACE delivered a report to Congress on the benefits and consequence of including water supply and water conservation as a primary USACE mission.³² As previously noted, WRDA 2024 included multiple provisions on USACE's water supply activities. This interest in the role that USACE's projects have in addressing the demands on existing water supplies may continue. How the agency integrates recent WRDAs' water-supply provisions into its project planning and development processes and the level to which these actions are supported by federal appropriations may shape the future portfolio and purposes of USACE projects.

EI Assistance

Congress since 1992 has continued to expand the suite of locations where USACE can provide EI assistance to nonfederal projects; for example, WRDA 2022 included over 600 EI assistance authorizations. The increased authorizations have resulted in expanded eligibility for many more nonfederal projects. Nonetheless, EI assistance is not available nationwide and is limited to authorized geographic areas. In addition, the authorization amounts of EI assistance vary widely, from a few thousand dollars to hundreds of millions of dollars. Although some of the larger EI authorities rival the size of individual USACE federal water resource project authorizations, the process for EI assistance remains distinct from the process for federal water resource projects; this distinction is due in part to the nonfederal nature of this infrastructure.

Congress may consider whether to add, amend, or deauthorize EI assistance authorities. It also may consider altering the scope of EI assistance authorities (e.g., geographic area, authorization of appropriations, activities). Further, Congress may consider whether to define prioritization for EI assistance (e.g., for economically disadvantaged communities) or whether to establish a more formal program (e.g., a competitive program or a program with national eligibility).

Footnotes