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The Corps is proposing to update the Federal regulation for its natural disaster procedures currently promulgated in 33 CFR part 203. This proposed rule continues the rulemaking process to revise 33 CFR part 203, which implements section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C. 701n), commonly referred to as Public Law 84-99. The Corps initiated this process through advanced notice of proposed rulemaking (ANPR) on February 13, 2015. The revisions under consideration would respond to the comments to the ANPR. The revisions address statutory changes to the program enacted in section 3011 and 3029 of the Water Resources and Reform Development Act of 2014 (WRRDA 2014) regarding the System Wide Improvement Framework (SWIF), modifications to Flood Control Works (FCW) and Coastal Storm Risk Management Projects (formerly referred to as Hurricane and Shore Protection Projects); and nonstructural alternatives to rehabilitation, if requested by the non-Federal sponsor. Additional revisions address statutory changes from section 1176 of the Water Resources Development Act of 2016 (WRDA) which provided an express definition of nonstructural alternatives,” as that term is used in Public Law 84-99, and authorized the Chief of Engineers, under certain circumstances, to increase the level of protection of flood control or hurricane or shore protection works when conducting repair or restoration activities to such works under Public Law 84-99. Other significant changes under consideration include revisions to the eligibility criteria for rehabilitation assistance for flood control works (FCW), an increase to the minimum repair cost for FCW projects, revised policies to address endangered species and vegetation management during rehabilitation, and a change in the cost share for emergency measures constructed using permanent construction standards.

Statement of Need:

Since the last revision in 2003, significant disasters, including Hurricane Katrina (2005), Hurricane Sandy (2012), flooding on the Mississippi and Missouri Rivers (2008, 2011, and 2013), and Hurricanes Harvey, Irma and Maria (2017) have provided a more detailed understanding of the nature and severity of risk associated with flood control projects. Additionally, the maturation of risk-informed decision making approaches and technological advancements have influenced the outlook on how Public Law 84-99 activities should be implemented, with a shift towards better alignment with Corps Levee Safety and National Flood Risk Management Programs, as well as the National Preparedness and Response Frameworks. Through these programs,the Corps works with non-federal sponsors and stakeholders to assess, communicate, and manage the risks to people, property, and the environment associated with levee systems and flood risks. Revisions to part 203 are necessary to implement statutes that amended or otherwise affected Public Law 84-99, as explained in the next section.

Summary of the Legal Basis:

Public Law 84-99 authorizes an emergency fund to be expended at the discretion of the Chief of Engineers for preparation for natural disasters, flood fighting, rescue operations, repairing or restoring flood control works, emergency protection of federally authorized hurricane or shore protection projects, and the repair and restoration of federally authorized hurricane and shore protection projects damaged or destroyed by wind, wave, or water of other than ordinary nature. 

1. Subsection 3029(a) of the Water Resources Reform and Development Act of 2014 (WRRDA) (Pub. L. 113-121) granted the Chief of Engineers authority, under certain circumstances, to make modifications to flood control and hurricane or shore protections works damaged during flood or coastal storms events, as well as the authority to implement nonstructural alternatives in the repair and restoration of hurricane or shore protection works.

2. Subsection 3029(b) of WRRDA 2014 directed the Secretary of the Army to undertake a review of implementation of Public Law 84-99 to ensure the safety of affected communities to future flooding and storm events; the resiliency of water resources development projects to future flooding and storm events; the long-term cost-effectiveness of water resources development projects that provide flood control and hurricane and storm damage reduction benefits; and the policy goals and objectives that were outlined by the President as a response to recent extreme weather events at that time are met.

3. Section 3011 of WRRDA 2014 mandated that a levee system shall remain eligible for rehabilitation assistance under Public Law 84-99 as long as the system sponsor continues to make satisfactory progress, as determined by the Secretary of the Army, on an approved system wide improvement framework or letter of intent.

4. Section 1176 of the Water Resources Development Act of 2016 (WRDA) (Pub. L. 114-322, title I) provided an express definition of nonstructural alternatives, as that term is used in Public Law 84-99, and authorized the Chief of Engineers, under certain circumstances, to increase the level of protection of flood control or hurricane or shore protection works when conducting repair or restoration activities to such works under PL 84-99.

Alternatives:

1. No rule update: Implement all changes through agency discretion. Alternative not selected because the Public Law 84-99 amendments are very prescriptive and it is inappropriate for those conflicts to exist.

2. Modify: Evaluate required changes and determine which require implementation via agency discretion and those requiring an update to the rule, thereby only updating the rule where necessary. Alternative not selected because of inconsistencies resulting from a lack of comprehensive consideration and a mix of policies. It would result in misunderstandings of program activities and inhibit transparency.

3. Repeal and replace (Selected Alternative): Incorporate and integrate the current state of the practice of flood risk management principles and concepts through the provision of agency policy codified in a federal rule. The intended benefit is to encourage broader community flood risk management activities, as enacted by non-federal project sponsors. The rule alternative also consolidates recent Public Law 84-99 amendments into one comprehensive rule, ensuring the Public has a clear understanding of the responsibilities and requirements.

Anticipated Costs and Benefits:

Overall, the changes to this regulation provide greater flexibility to the federal government and non-Federal sponsors and improve the effectiveness of federal and local investments in riverine and coastal projects. These proposed changes take advantage of our increased understanding of project risks, moving from an assessment of how the project is expected to perform to a focus on a broader set of actions to reduce risk to life, including operations, maintenance, planning, and execution actions to improve emergency warning and evacuation and other activities to improve the ability of communities and individuals to understand and manage project-related risks. Informed by more detailed understanding of risk for levee projects, the federal government and non-federal sponsors are able to apply limited resources to the risk management activities that most effectively reduce riverine flood risk and avoid expenditures that have little risk reduction benefit.

Risks:

The rule will is expected to reduce risks to public health and safety by improving the Corps' ability to prepare for national response framework missions that contribute to the restoration of critical lifelines that are necessary for life sustaining activities and economic recovery. The rule is also expected to encourage broader community flood risk management activities, as enacted by non-federal project sponsors.