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The U.S. Army Corps of Engineers (Corps) is finalizing an update to the Federal regulation that covers the procedures that the Corps uses under 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 relies on this program to prepare for, respond to, and help communities recover from a flood, hurricane, or other natural disaster, including the repair of damage to eligible flood risk reduction infrastructure. The Corps initiated this rulemaking process through an advanced notice of proposed rulemaking (ANPRM) on February 13, 2015. The Corps published a notice of proposed rulemaking (NPRM) on November 15, 2022.  The NPRM included a summary of the comments to the ANPRM.  The NPRM proposed to repeal the existing regulation and replace it with a new regulation that addresses statutory changes under various Water Resources Development Act provisions, reflects lessons learned over the past 20 years, and incorporates agency policies now in guidance relating to natural disaster procedures.

In 2015, the Corps published an Advance Notice of Proposed Rule Making (ANPR) in the Federal Register for a 60 day public comment period on policy revision concepts being considered for 33 CFR Part 203. The Corps then published proposed revisions to 33 CFR Part 203 in the Federal Register with a public comment period from November 15, 2022 to January 17, 2023. The Corps hosted nine regional workshops in Kansas City, MO; Fort Worth, TX; Seattle, WA; Sacramento, CA; Chicago, IL; Rock Island, IL; New Orleans, LA; and Wilmington, NC; Concord, MA; and two webinars to solicit input from interested parties. The Corps also met with two Tribal Nations for direct consultation and input. The final rule will address the input received by the Corps through the comment and public engagement process.

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) led to a great understanding of the nature and severity of risk associated with flood and storm damage reduction projects. In addition, the maturation of risk-informed decision making approaches and technological advancements have influenced the outlook on the implementation of Public Law 84-99 activities, with a shift toward 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 also would implement certain 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 2014) (Pub. L. 113-121) authorized the Chief of Engineers, 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 authorized the Secretary of the Army to undertake a review of implementation of Public Law 84-99 to improve 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 achieve certain other policy goals and objectives.

3. Section 3011 of WRRDA 2014 states 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 2016) (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 or increase the capacity of a pumping station when conducting repair or restoration activities to such works under Public Law 84-99.

Alternatives:

1. No rule update: Continue to implement all changes through agency guidance documents and agency discretion.

2. Modify: Incorporate in the rule only those changes related to changes in the program that the Congress has mandated in law. 

3. Repeal and replace (Selected Alternative): Incorporate and integrate the current state of practice for 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 undertaken by non-Federal project sponsors. The rule alternative also consolidates recent Public Law 84-99 amendments into one comprehensive rule, ensuring the public understands how the Corps would implement them.

Anticipated Costs and Benefits:

Overall, the purpose of the proposed changes to this regulation is to improve the effectiveness of Federal and local investments to reduce flood risks in both riverine and coastal settings. These proposed changes take advantage of our increased understanding of flood and storm 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 systems, the Federal Government and non-Federal sponsors should be able to apply the available 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 would repeal and replace the current 33 CFR 203 in order to reflect the current state of practice for flood risk management principles and concepts. It would also amend and clarify the current role of the Corps in preparing for, and responding a natural disaster, and in helping in the recovery effort. The rule may also encourage broader community flood risk management activities, as undertaken by non-Federal project sponsors.