Proposed Rule2024-02448
Corps of Engineers Agency Specific Procedures To Implement the Principles, Requirements, and Guidelines for Federal Investments in Water Resources
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Published
February 15, 2024
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
This proposed rule establishes Agency Specific Procedures (ASPs) for the Corps' implementation of the Principles, Requirements, and Guidelines for water resources investments. It provides a framework to govern how the Corps would evaluate proposed water resource investments, including identification of which Corps programs and activities are subject to the Principles, Requirements, and Guidelines. The Corps is proposing this rule in response to congressional direction provided in authorizing language in the Water Resources Development Act of 2020.
Full Text
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[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Proposed Rules]
[Pages 12066-12105]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02448]
[[Page 12065]]
Vol. 89
Thursday,
No. 32
February 15, 2024
Part IV
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 234
Corps of Engineers Agency Specific Procedures To Implement the
Principles, Requirements, and Guidelines for Federal Investments in
Water Resources; Proposed Rule
Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 /
Proposed Rules
[[Page 12066]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 234
[Docket ID: COE-2023-0005]
RIN 0710-AB41
Corps of Engineers Agency Specific Procedures To Implement the
Principles, Requirements, and Guidelines for Federal Investments in
Water Resources
AGENCY: U.S. Army Corps of Engineers (Corps), Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: This proposed rule establishes Agency Specific Procedures
(ASPs) for the Corps' implementation of the Principles, Requirements,
and Guidelines for water resources investments. It provides a framework
to govern how the Corps would evaluate proposed water resource
investments, including identification of which Corps programs and
activities are subject to the Principles, Requirements, and Guidelines.
The Corps is proposing this rule in response to congressional direction
provided in authorizing language in the Water Resources Development Act
of 2020.
DATES: Comments must be received on or before April 15, 2024.
ADDRESSES: You may submit comments, identified by docket number COE-
2023-0005, using any of these methods:
1. Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow
the instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#bbc8cfdad8dec295d695d1ded5c8ded595d8d2cdfbdac9d6c295d6d2d7"><span class="__cf_email__" data-cfemail="3e4d4a5f5d5b47105310545b504d5b50105d57487e5f4c534710535752">[email protected]</span></a> and include the docket
number, COE-2023-0005, in the subject line of the message.
3. Mail: Stacey M. Jensen, 108 Army Pentagon, Room 3E474,
Washington, DC 20310-0108.
4. Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2023-0005.
The public docket will include all comments exactly as submitted and
without change and may be made available on-line at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This will include any personal information
provided, unless the commenter indicates that the comment includes
information claimed to be Confidential Business Information (CBI) or
other information where disclosure is restricted by statute. Do not
submit information that you consider to be CBI, or otherwise protected,
through <a href="http://regulations.gov">regulations.gov</a> or email. The <a href="http://regulations.gov">regulations.gov</a> website is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
<a href="http://regulations.gov">regulations.gov</a>, your email address will be automatically captured and
included as part of the comment placed in the public docket and made
available on the internet. If you submit an electronic comment, we
recommend that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification, we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All documents in
the docket are listed. Although listed in the index, some information
is not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Ms. Stacey M. Jensen, Acting Director
for Policy and Legislation, Office of the Assistant Secretary of the
Army (Civil Works), 108 Army Pentagon, Washington, DC 20310-0108, at
(703) 459-6026 or <a href="/cdn-cgi/l/email-protection#0b787f6a686e72256625616e65786e652568627d4b6a79667225666267"><span class="__cf_email__" data-cfemail="ddaea9bcbeb8a4f3b0f3b7b8b3aeb8b3f3beb4ab9dbcafb0a4f3b0b4b1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
A. Background
Since the Rivers and Harbors Appropriations Act of 1903 (Pub. L.
57-154), the Corps has been required to consider the benefits of water
resources investments in relation to their costs. The Flood Control Act
of 1936 (Pub. L. 74-738) called for the Federal government to improve
navigable waters or their tributaries for flood control purposes if the
benefits to whomever they may accrue are in excess of the estimated
costs. Since then, the Corps has been developing tools and methods for
developing and evaluating water resource plans and projects.
Multi-objective water resource planning concepts on a comprehensive
and nationally coordinated basis were central to the Water Resources
Planning Act of 1965 (Pub. L. 89-80) and were reflected in Federal
guidance, the Principles and Standards for Planning Water and Related
Land Resources (P&S), issued by the Water Resources Council in 1973 (38
FR 24778). The Water Resources Council was established by the Water
Resources Planning Act of 1965 (Pub. L. 89-90) to assess and make
recommendations on national water-related matters and policies (further
information can be found at 18 CFR 701.3). The P&S reflected two
Federal objectives for water resources planning, which were to enhance
national economic development and to enhance the quality of the
environment.
Federal water policy moved away from this dual-objective concept
with the 1983 Economic and Environmental Principles and Guidelines for
Water and Related Land Resources Implementation Studies (P&G).\1\ The
P&G combined the two objectives of the P&S into a single, integrated
Federal objective, which was ``to contribute to national economic
development consistent with protecting the Nation's environment,
pursuant to national environmental statutes, applicable executive
orders, and other planning requirements''. The Water Resources Council
developed the P&G to guide the formulation and evaluation of
alternatives in the project planning studies of four of the Federal
water resources agencies, including the Corps. The Corps has
implemented the P&G since 1983. The P&G provides that contributions to
national economic development (NED) are the increases in net value of
the national output of goods and services, expressed in monetary units.
It also provides that contributions to NED are the direct net benefits
that accrue in the planning area and the rest of the Nation.
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\1\ <a href="https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf">https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf</a>, last accessed on January 31, 2024.
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In the P&G, four accounts were established to facilitate evaluation
and display of effects of alternative plans. The only required account
is the NED account. The other three accounts were: the environmental
quality account, which displays nonmonetary effects on significant
natural and cultural resources; the regional economic development (RED)
account, which registers changes in the distribution of regional
economic activity that result from each alternative plan; and the other
social effects account, which registers plan effects from those other
perspectives that are relevant to the
[[Page 12067]]
planning process, but are not reflected in the other accounts. Under
the P&G, the Assistant Secretary of the Army for Civil Works (ASA(CW))
may grant an exception to allow the Corps to recommend a plan that is
not the NED plan. In addition, each alternative plan must be formulated
in consideration of four criteria: completeness, effectiveness,
efficiency, and acceptability.
In 1981, the Water Resources Council chairman requested reduced
Council funding. The action was consistent with the Reagan
Administration's position that states should play a more active role in
water policy activities. All the organizational and staff planning
functions of the Council and basin commissions were disbanded, and the
revised set of ``Principles and Guidelines'' were issued in 1983 as one
of the last formal actions of the Council. Although the Water Resources
Planning Act has not been repealed and thus authorization of the
Council remains statutorily, no funding for the Council has been
appropriated since 1983 (CRS Report, May 11, 2009.) \2\
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\2\ <a href="https://aquadoc.typepad.com/files/crs_report_35_years_water_policy_1973nwc_challenges_11may2009.pdf">https://aquadoc.typepad.com/files/crs_report_35_years_water_policy_1973nwc_challenges_11may2009.pdf</a>,
last accessed on January 31, 2024.
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Section 2031 of the Water Resources Development Act of 2007 (WRDA
2007) (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) established a
National Water Resources Planning Policy. The National Water Resources
Planning Policy states that all water resource projects should reflect
national priorities, encourage economic development, and protect the
environment by: (1) seeking to maximize sustainable economic
development; (2) seeking to avoid the unwise use of floodplains and
flood-prone areas and minimizing adverse impacts and vulnerabilities in
any case in which a floodplain or flood-prone area must be used; and,
(3) protecting and restoring the functions of natural systems and
mitigating any unavoidable damage to natural systems.
Section 2031 of WRDA 2007 also called for the Secretary of the Army
to revise the 1983 P&G for use by the Corps in the formulation,
evaluation, and implementation of water resources projects. WRDA 2007
required that these revisions to the P&G address the following: the use
of best available economic principles and analytical techniques,
including techniques in risk and uncertainty analysis; the assessment
and incorporation of public safety in the formulation of alternatives
and recommended plans; assessment methods that reflect the value of
projects for low-income communities and projects that use nonstructural
approaches to water resources development and management; the
assessment and evaluation of the interaction of a project with other
water resources projects and programs within a region or watershed; the
use of contemporary water resources paradigms, including integrated
water resources management and adaptive management; and evaluation
methods that ensure that water resources projects are justified by
public benefits.
In 2014, the Council on Environmental Quality (CEQ) completed an
interagency effort to update the 1983 P&G, which became effective on
June 15, 2015 (79 FR 77460). This effort resulted in the Principles,
Requirements and Guidelines (PR&G). CEQ developed the PR&G through this
interagency process to improve Federal decisions on investments in
water resources by giving more prominence to ecological, public safety,
environmental justice, and related concerns.
The PR&G, which govern how Federal agencies evaluate proposed water
resource developments, include the following three components: (1)
Principles and Requirements for Federal Investments in Water Resources
(P&R, 2013,\3\) providing the overarching concepts that the Federal
Government seeks to achieve through policy implementation and
requirements for inputs into analysis of Federal investment
alternatives; (2) Interagency Guidelines (IG, 2014,\4\) providing more
detailed guidance for affected Federal agencies, including the
Departments of the Interior, Agriculture, and Commerce, Environmental
Protection Agency (EPA), the Corps, the Federal Emergency Management
Agency (FEMA), and the Tennessee Valley Authority, for determining the
applicability of the P&R; and (3) agency specific procedures (ASPs)
providing agency specific guidance for identifying which programs and
activities are subject to the PR&G. The Corps has not issued final ASPs
to implement the 2013 PR&G.
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\3\ <a href="https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf">https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf</a>, last accessed
January 31, 2024.
\4\ <a href="https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf">https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf</a>, last accessed January
31, 2024.
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Section 110 of the Water Resources Development Act of 2020 (WRDA
2020) (Division AA of Pub. L. 116-260) directs the Army to issue its
final ASPs necessary for the Corps' Civil Works program to implement
the PR&G. Section 110 of WRDA 2020 also provides that the Army must
develop Corps projects in accordance with the PR&G as well as Section
2031 of WRDA 2007. The WRDA 2020 directs Army to provide notice and
opportunities for engagement and public comments on the development of
the ASPs. The Army is pursuing this rulemaking to provide codified
direction for the Corps project planning process, which will achieve
the purposes of the PR&G, with input from a robust and meaningful
Tribal and public engagement. This proposed rule follows the general
framework laid out in the PR&G. The Corps also reviewed and considered
the ASPs developed by other Federal agencies in developing this
proposed rule. This rulemaking seeks to formalize the planning
framework of the Corps under the PR&G in a transparent manner, by
providing the public an opportunity to comment on the proposed new
planning paradigm and its requirements. The proposed ASPs would apply
to plans, projects, or programs that are initiated after any final rule
may take effect. The Corps would also apply the ASPs to plans,
projects, or programs that have not yet issued a Draft Environmental
Impact Statement or similar level of documentation on or before any
final rule effective date. Note that Army, through the Assistant
Secretary of the Army for Civil Works, is responsible for policy
direction and oversight of the Army's Civil Works program, whereas the
Corps has the lead in implementing the program. Hence this document
refers both to the Army (for policy direction) and the Corps (for
implementation responsibility). Although the proposed rule uses the
language ``water resources development project'', which is consistent
with the statutory language of section 110 of the Water Resources
Development Act of 2020, and is the terminology generally used in Corps
statutes and regulations, the Corps does acknowledge that its role has
evolved over the years to include developing, managing, restoring, and
protecting water resources. A more appropriate term to use throughout
would be ``water resources projects'' rather than ``water resources
development projects.'' Consistent with this approach, section 2031 of
the Water Resources Development Act of 2007, the 2013 P&R, and the 2014
Interagency Guidelines (IG) refer to ``water resources projects''. The
proposed rule uses ``water resources development projects,'' which is
the term that the Corps traditionally has used. The Army solicits
comment on this issue.
The Army received input from Tribes, Federal and State agencies,
stakeholders, and other interested
[[Page 12068]]
parties through the issuance of the Federal Register Notice of Virtual
Public and Tribal Meetings Regarding the Modernization of Army Civil
Works Policy Priorities; Establishment of a Public Docket; Request for
Input (Modernize Civil Works) that was published on June 3, 2022 (87 FR
33756). This Notice solicited public comment on topics including the
ASPs being considered for this proposed rulemaking. In response to the
Notice, we received generally supportive comments on the policy
revision concepts outlined in the Notice and the comments recognized
the value of using more modern approaches for decision making. Many
commenters mentioned the need to consider a broader set of benefits
than can be captured by the Corps' traditional NED account, and many
endorsed the effort to more fully incorporate climate change, to
increase collaboration with Tribal, state, and local organizations, and
to better incorporate the potential ecosystem costs and benefits of
water resources investments.\5\
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\5\ Summary document of comments received in response to the
Federal Register Notice can be found at <a href="https://api.army.mil/e2/c/downloads/2022/12/01/d5bd08a7/written-comment-summary-for-prg-for-frn-to-modernize-civil-works.pdf">https://api.army.mil/e2/c/downloads/2022/12/01/d5bd08a7/written-comment-summary-for-prg-for-frn-to-modernize-civil-works.pdf</a>, last accessed January 31, 2024.
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For ease of comment review and consideration, commenters should
consider referencing a specific section or paragraph of the proposed
rule and preamble when providing comments. In addition to solicitation
on specific areas identified in the preamble, the Corps solicits
comments in general on issues or concerns related to this proposed rule
which are not specifically identified in the proposal. For these
comments, the commenter should clearly state the issue or concern,
provide or reference any supporting documentation (e.g., reports,
statistical data, and studies), and make a proposal or recommendation
about how to improve the proposed regulation.
B. Overview of Proposed Rule
To promote alignment across the Federal government in the
implementation of the PR&G, Army opted to use the Department of
Interior's (DOIs) ASPs as a basis for development of the Corps' ASPs.
DOIs ASPs were released in 2015 and guide the Bureau of Reclamation in
water resources investments that have similarities to Corps water
resources investments. Other agencies with approved ASPs such as EPA,
FEMA, and the Natural Resources Conservation Service make investments
in water infrastructure that are less similar, although Army did review
those agencies' ASPs for background and for areas where consistency
would be appropriate.
Two key concepts in the PR&G are ``Federal investment'' and
``public benefit.'' While the P&G applied to the planning and
evaluation of alternative plans in the formulation and evaluation of
water and related land resources implementation studies, the PR&G does
not merely apply to studies, but rather focuses on Federal water
resources investments, including projects, plans, and programs that the
Federal government undertakes whose purposes either directly or
indirectly alter water quantity, quality, ecosystems, or related land
management. The level of a given Federal investment would be determined
on a present value basis over the life of the Federal investment and
the net public benefits of an investment would be assessed and used to
guide Federal decision making. Federal water resources investments
should strive to achieve water resources goals and maximize discounted
net public benefits, with appropriate considerations laid out in the
PR&G. These concepts are described in further detail in this preamble.
The proposed rule ASPs provide a framework for the Corps to be used for
projects, plans, and programs, and in the planning process, in
implementing the PR&G for water resources investments.
C. Proposed Sections
Section 234.1 General. This section of the proposed rule describes
the background on development of the PR&G as well as the authority for
the development of the Corps' ASPs as described in the Background
section of this preamble. Nothing in this proposed rule would change
any other legal requirements to which the Corps is subject (e.g.,
applicable WRDA provisions).
Section 234.2 Definitions. This section provides proposed
definitions for relevant terms used in the ASPs. The Army solicits
input on additional terms that need to be defined or whether the
definitions proposed require additional clarity.
Section 234.2(a) Acceptability. This paragraph provides a
definition for acceptability. This definition is provided in the P&R.
Acceptability is one of four criteria to be considered when formulating
an alternative. Acceptability takes into consideration the general
public's perspectives in the determination of an alternative's
viability and appropriateness and ensures consistency with existing
Federal laws, authorities, and public policies.
Section 234.2(b) Adaptive management. This paragraph provides a
definition for adaptive management. This definition is provided in the
P&R and describes the process to address changes, uncertainty, and
maximization of goals over time. Adaptive management should be
incorporated into alternatives, where warranted, to address risk and
uncertainty.
Section 234.2(c) Completeness. This paragraph provides a definition
for completeness. This definition is provided in the P&R and describes
when an alternative is complete enough to realize the planned effects.
Completeness does not equate to a particular scope or scale to be
considered complete. Completeness is one of four criteria to be
considered when formulating an alternative.
Section 234.2(d) Effectiveness. This paragraph provides a
definition for effectiveness. This definition is provided in the P&R
and describes that an alternative is effective when it alleviates the
specific problems and achieves the specified opportunities.
Effectiveness is one of four criteria to be considered when formulating
an alternative.
Section 234.2(e) Efficiency. This paragraph provides a definition
for efficiency. This definition is provided in the P&R and describes
the extent to which a Federal investment is efficient such that an
alternative may alleviate the specified problems and realizes the
specific opportunities at the least cost. Efficiency is similar to
effectiveness with the additional element of cost consideration. The
P&R also describes how the Federal investment should promote water
efficiency to the extent possible when considering water use.
Efficiency is one of the four criteria to be considered when
formulating an alternative.
Section 234.2(f) Federal investment. This paragraph provides a
definition for Federal investment. The ASPs for implementing the PR&G
are intended to assist in designing and evaluating potential Corps
investments in water resources. Federal investments as used in PR&G is
broad and intended to capture a wide array of activities (e.g.,
projects, programs, and plans) that the Federal government directly
undertakes relating to water resources. This proposed definition is
specific to the Corps' potential Federal investments. The P&R does not
define Federal investments. The P&R includes Federal investments that
affect water quality or water quantity. However, using this language
may result in confusion. The Corps has three main Civil Works mission
areas (commercial navigation,
[[Page 12069]]
flood and storm risk reduction, and aquatic ecosystem restoration) and
generally will not propose a project whose primary purpose is outside
of these main missions. Many Corps flood risk management projects can
be said to affect ``water quantity'' indirectly, insofar as they alter
the timing and way that water flows in a flood. Similarly, many of the
dams that the Corps has constructed (primarily to reduce flood risks or
facilitate commercial navigation) also can be said to affect ``water
quantity'' insofar as they store water to serve ancillary purposes such
as hydropower, fish and wildlife, recreation, and water supply. With
this in mind, the Army invites comments on whether the language
provided in the P&R or other language on this issue should be included
in the rule definition.
Section 234.2(g) Federal objective. This paragraph provides a
definition for Federal objective, which is the conceptual goal of
Federal investments in water resources. This basic definition is
provided in the P&R but originates in the WRDA 2007 where it is further
detailed in Section 2031 and can be found in this proposed regulation
at section 234.1(b). The Corps would develop investment alternatives
based on the Federal objective. The Federal objective should result in
investments which provide various public benefits, including community
resilience.
Section 234.2(h) Indigenous Knowledge. This paragraph provides a
definition for Indigenous Knowledge based on the Guidance for Federal
Departments and Agencies on Indigenous Knowledge \6\. Indigenous
Knowledge shall be considered in and used to inform all aspects of the
Corps' ASPs, where relevant and applicable.
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\6\ <a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf</a>, last accessed January 31, 2024.
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Section 234.2(i) Nature-based alternatives. This paragraph provides
a definition for nature-based alternatives. The proposed definition
aligns with and generally adopts the definition provided in the
Opportunities to Accelerate Nature-based Solutions: A Roadmap for
Climate Progress, Thriving Nature, Equity, & Prosperity \7\ issued by
the Council on Environmental Quality, the Office of Domestic Climate
Policy, and the Office of Science and Technology Policy. Consistency
with this document is important to ensure the Corps approach aligns
with the other Federal water resources agencies involved in nature-
based solutions. Section 1184 of WRDA 2016 provided definitions of
``natural feature'' and ``nature-based feature'' specific to providing
risk reduction. This authorization requires the Corps to consider such
features, as appropriate, in its feasibility studies for flood risk
management, hurricane and storm damage reduction, and ecosystem
restoration projects, with the consent of the non-Federal interest.
Section 1149 of WRDA 2018 modified Section 1184 of WRDA 2016 to include
additional direction to the Corps on the inclusion of such features in
flood risk management, hurricane and storm damage reduction, and
aquatic ecosystem restoration projects. Section 116 of WRDA 2020
requires the Corps to document the consideration of natural and nature-
based alternatives in the study of flood risk management and hurricane
and storm damage reduction, including estimates of long-term costs and
benefits of such alternatives. Under the proposed regulation, a nature-
based alternative is entirely comprised of nature-based features. The
Corps would include for consideration in the final array of
alternatives a nature-based alternative, if feasible. Where a nature-
based alternative is not feasible or would not be fully effective, the
Corps would consider including in the final array an alternative that
includes nature-based solutions along with other features. The Army
recognizes that nature-based solutions have an important place for
consideration in Civil Works projects but may not be appropriate in all
circumstances as a way to address the subject water resources problems.
For example, other considerations in the proposed ASPs may result in
the maximization of public benefits being achieved through an
alternative method. The Corps would focus on results-driven solutions
as opposed to dictating one specific method over another for addressing
the water resources solution at hand, with appropriate consideration of
the net benefits. In addition, nature-based solutions as components of
the other alternatives included in the final array and as part of any
final recommendation as part of a comprehensive solution are
encouraged.
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\7\ <a href="https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf</a>, last accessed January 31, 2024.
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Section 234.2(j) Non-Federal interest. This paragraph provides a
definition for the non-Federal interest. The proposed definition is
taken from 42 U.S.C. 1962d-5(b). The P&R uses the term ``local
interest'' and does not define ``non-Federal interest.'' The P&R
definition of local interest is a non-Federal entity with some level of
oversight or implementation responsibility associated with a water
resources investment. Under the P&R, the local interest could be a
community or a state or local government agency, for example. For Corps
projects, this generally would be the non-Federal interest. For clarity
on the Corps Civil Works process and consistency with who can legally
be a partner on Corps projects and/or be responsible for operation and
maintenance, as well as to tailor the PR&G to the Corps processes, the
Army is proposing to use the term ``non-Federal interest'' rather than
``local interest'' in the proposed regulation. However, the Army
intends for the non-federal interest to fill the role of the local
interest as identified in the PR&G. For many of the flood risk
management projects that the Corps constructs, the non-federal interest
owns the project and is responsible for its operation and maintenance
after construction. The non-federal interest generally also is the
cost-share partner on the project, which includes having a level of
oversight and implementation responsibility as envisioned in the P&R
definition of local interest. The Army solicits comments on whether
equating the non-federal interest with the local interest is an
appropriate approach for implementation of this provision of the PR&G.
The P&R provides that an alternative plan, strategy, or action that is
preferred by a local interest with oversight or implementation
responsibilities must be included in the final analysis. Similarly,
this proposed regulation provides that an alternative that is locally
preferred (i.e., the alternative preferred by the non-federal interest)
must be included in the final array of alternatives. The Army also
recognizes that the planning process is shared with the non-Federal
interest and solicits recommendations on how best the ASPs can
incorporate and identify the role of the non-Federal interest in the
process.
Section 234.2(k) Nonstructural alternative. This paragraph provides
a definition for nonstructural alternative. A nonstructural alternative
is entirely comprised of nonstructural approaches. The proposed
regulation would require the Corps to include for consideration in the
final array of alternatives a nonstructural solution, if feasible.
Where a nonstructural solution is not feasible or would not be fully
effective, the Corps would include for consideration in the final array
an alternative that is primarily nonstructural, if feasible.
Section 234.2(l) Nonstructural approaches. This paragraph provides
a definition for nonstructural approaches. This definition is provided
in the P&R; however, illustrative examples were
[[Page 12070]]
added for clarity. These examples are not intended to be limiting but
instead provide a sense of the types of actions which fall under
nonstructural approaches. The Army solicits comment on whether these
are appropriate examples and context for the term ``nonstructural'' or
whether modifications should be made to any final definition or list.
The nonstructural approaches are intended to apply across the Corps
missions and activities that are subject to the PR&G. Nonstructural
approaches are methods and practices employed to alter the use of
existing infrastructure through human activities as opposed to altering
physical interaction of water and land. Nonstructural approaches can
include things like policy modifications or floodproofing of existing
infrastructure. Alternatively, structural approaches would include
things such as new construction of water resources infrastructure or
structural modification to enlarge an existing dam or levee. As
referenced under the nature-based alternative definition discussion in
the preamble, various WRDA provisions require the Corps to incorporate
nonstructural and nature-based solutions in plan formulation. Army
solicits comment on whether this proposed definition best meets or
enables the implementation of the PR&G to achieve long-term planning
goals and objectives of the PR&G, including the avoidance of the unwise
use of floodplains and the Guiding Principle of healthy and resilient
ecosystems.
Section 234.2(m) Public benefits. This paragraph provides a
definition for public benefits. Public benefits encompass economic,
environmental, and social benefits, and include those that can
currently be quantified in monetary terms, as well as those that can be
quantified or described qualitatively. The PR&G provides for the
maximization of public benefits relative to costs. This definition is
provided in the P&R. In comparison, the P&G Federal objective of water
and related land resources project planning is to contribute to
national economic development (NED) (or national ecosystem restoration
(NER) for aquatic ecosystem restoration), consistent with protecting
the Nation's environment, pursuant to national environmental statutes,
applicable executive orders, and other Federal planning requirements.
Contributions to NED under P&G are increases in the net value of the
national output of goods and services, expressed in monetary units and
are the direct net benefits that accrue in the planning area and the
rest of the Nation. Contributions to NED include increases in the net
value of those goods and services that are marketed, and also of those
that are not marketed.
A particular alternative may create changes that result in benefits
in more than one benefit category; however, the Corps would assign the
benefits to the most appropriate category and thereby avoid double
counting. The definition is not intended to be construed as privately
driven benefits, but rather for the general public reflecting the goals
of the nation. Typically, public benefits (like public goods) are
available to all (nonexcludable) and are non-rivalrous. Generally,
these benefits are intended to accrue to society as a whole and not
solely for the benefit of certain private persons or entities, although
private persons or entities may ultimately benefit (e.g., reduction in
private property damages as a result of a coastal storm risk management
project). Cost-savings to industry as a whole (e.g., navigation
industry), for example, benefit society and therefore would be
accounted for in the analysis. In addition, avoided property damages
and life safety would also be accounted for as public benefits although
they benefit individuals as well. Benefits which may be viewed as more
local in nature are reflected in the ASPs through the use of the
watershed-based approach that considers the benefits of water resources
for a wide range of stakeholders within and around the watershed,
through collaboration and coordination with communities and local
governments, as well as including the locally preferred alternative
identified in the final array. The Army solicits comment on how
benefits to Tribal Nations should be described, such as whether
benefits to Tribal Nations should be considered as a Federal trust
responsibility, and whether Tribal Nation benefits should be called out
separately from the overarching ``public benefits.''
Section 234.2(n) Regulatory. This paragraph provides a definition
for regulatory. This definition is provided in the P&R and is a general
definition of actions which are regulatory in nature promulgated by the
Federal government. Regulatory can include the promulgation of
regulations as well as other activities such as permit decisions.
Section 234.2(o) Resilience. This paragraph provides a definition
for resilience. This definition is provided in the P&R and can be
applied to many different areas within the proposed rule such as
climate resilience, including grid resilience when relevant, ecosystem
resilience, and water resilience, regarding how climate, ecosystems,
and water responds to changes. The resilience of a water resource
solution should be considered in alternatives analysis and tradeoffs
discussion. The Corps implements four principles related to resilience:
prepare, absorb, recover, and adapt. There is also a definition
provided for resilience in Executive Order 13653 (78 FR 66817), which
the Corps currently uses in its Resilience Initiative.\8\ The
definition provides that resilience is the ability to anticipate,
prepare for, and adapt to changing conditions and withstand, respond
to, and recover rapidly from disruptions. This definition can have
application to both natural and human-made entities. In addition, there
is a definition of resilience provided in the National Climate
Resilience Framework \9\ as well as in M-24-03, Advancing Climate
Resilience through Climate-Smart Infrastructure Investments and
Implementation Guidance for the Disaster Resiliency Planning Act.\10\
The Army solicits comment on whether the resilience definition provided
in the Executive Order or the National Climate Resilience Framework or
M-24-03 should be included in the regulation instead of or in addition
to the proposed definition. The Army also solicits comment on whether
additional concepts from these documents should be included in the
rule, and if so, in what manner related to the use of resilience in the
rule. The usage of the Corps' definition would be more efficient in
implementation as it is familiar to the Corps and more directly relates
to Corps missions; however, the proposed definition would be consistent
with the PR&G and would apply resilience in a broader sense. There are
areas discussed in the PR&G related to resilience that go beyond
climate-related resilience.
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\8\ <a href="https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf</a>, last accessed January 31, 2024.
\9\ <a href="https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf</a>, last accessed
January 31, 2024.
\10\ <a href="https://www.whitehouse.gov/wp-content/uploads/2023/11/M-24-03-Advancing-Climate-Resilience-through-Climate-Smart-Infrastructure-Investments.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/11/M-24-03-Advancing-Climate-Resilience-through-Climate-Smart-Infrastructure-Investments.pdf</a>, last accessed January 31, 2024.
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Section 234.2(p) Sustainable. This paragraph provides a definition
for sustainable. This definition is provided in the P&R and refers to
the conditions where humans and nature are able to coexist. The P&R
generally uses the term ``sustainable'' in the context of seeking to
maximize sustainable economic development, which is one component to
achieve the Federal objective. Investments in sustainable economic
[[Page 12071]]
development contribute to the Nation's resilience. The P&R also
provides that alternative solutions should improve the economic well-
being of the Nation through the sustainable use and management of water
resources ensuring both water supply and water quantity. Sustainability
would also incorporate the maximization of net benefits while fully
considering the option of, and value of, preserving resources for
future uses or non-uses, and fully considering the preferences of
future generations through appropriate analytical timeframes and
discount rates.
Section 234.2(q) Tribal Nation. This paragraph provides a
definition for Tribal Nation. This definition is consistent with the
Federal government's definition and identification of a Tribal Nation
by the Secretary of Interior. This definition is also used and applied
to other Corps programs, such as the Tribal Partnership Program. The
Army recognizes that there are other Indigenous populations, Native
Hawaiian Organizations, and non-federally recognized Tribes which may
not meet the definition as proposed, and solicits comments on whether
these populations should be defined separately for purposes of the
PR&G. Regardless of definitions and legal authorities applied to the
Civil Works programs, the Corps would ensure full outreach and
coordination occurs with all Tribal Nations, Indigenous populations,
Native Hawaiian Organizations, and non-federally recognized Tribes as
relevant to a particular water resources investment as described in the
preamble discussion under paragraph 234.6(d). Such outreach and
coordination would be separate from government-to-government
consultation requirements. Many of these include communities having
environmental justice concerns. Environmental justice is one of the
Guiding Principles of the PR&G and this proposed rule.
Section 234.2(r) Unwise use of floodplain. This paragraph provides
a definition for unwise use of floodplain. This definition is provided
in the P&R and describes conditions which result in a floodplain that
is no longer self-sustaining. Seeking to avoid the unwise use of
floodplains is also a component of how to achieve the Federal
objective. The appropriate floodplain per this definition and
application under the proposed ASPs is case-specific and should
consider the scope and scale of the problem and potential benefits when
determining the geographic boundary. Per the P&R, Federal actions
should seek to reduce the Nation's vulnerability to floods and storms.
Unwise uses include those that would significantly increase or shift
flood risks to other populated areas, or otherwise would result in net
adverse impacts to human health, safety, welfare, property, natural
resources, or the natural and beneficial functions of floodplains
(e.g., natural water storage, water filtration, groundwater
infiltration, sediment retention). The Army solicits comment on how
evaluations of self-sustainment may occur in occupied or inhabited
floodplains.
Section 234.2(s) Watershed. This paragraph provides a definition
for watershed. This general definition for watershed is provided in the
P&R and does not go into detail regarding a specific method or size to
identify a watershed. Using a watershed approach is a Principle under
P&R to ensure a more holistic view of the problem and potential
solutions. The appropriate size of watershed to assess is case-specific
and should consider the scope and scale of the problem and potential
benefits when determining the geographic boundary.
Section 234.3 Exceptions. The proposed ASPs describe a way to
request an exception to the rules or policies contained in the Corps'
proposed ASPs. The exception must be submitted in writing and the
decision-maker is the ASA(CW). As there are already proposed exemptions
for the application of the PR&G laid out in the proposed rule as well
as different levels of analysis proposed based on specific thresholds,
the Army believes that exception requests would be a rare circumstance.
In addition, since Army intends for PR&G to apply to those non-exempt
programs and areas specified in the proposed rule, the ASA(CW) is the
appropriate decision-maker level for approving exceptions.
Section 234.4 Objectives and applicability.
Section 234.4(a) Introduction. This paragraph of the proposed rule
states the goals and objectives of the Corps' ASPs. The proposed rule
would help ensure consistency and transparency in implementation of the
PR&G by the Corps. The common framework provided in the ASPs will drive
that consistency and codifying the ASPs in regulation would ensure
transparency for the public, as well as an opportunity for review and
comment prior to finalization through the rulemaking process. The Corps
has various guidance documents for its water resources development
project planning process, but the proposed ASPs would ensure all
projects, plans, and programs subject to the PR&G are using the same
Guiding Principles and considerations in developing alternatives and
recommendations. Upon finalization of any rule regarding the Corps'
ASPs, the Corps would review its existing guidance documents and
rescind, modify, or develop new guidance as needed to comport with and
further the objectives of the Corps' ASPs. However, these proposed ASPs
are intended to stand on their own regarding the overall framework and
provide the guideposts for the Corps when implementing the PR&G.
Comments are solicited which may help identify where additional details
may be warranted in any final rule and preamble and where additional
specific technical tools or methodologies may be warranted in follow-on
Corps guidance documents.
Section 234.4(b) Objectives for Federal water resources
investments. This paragraph of the proposed rule provides the Federal
objective for Federal water resources investments as provided in WRDA
2007 (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) and elaborates on
the definition of Federal objective provided at 234.2(l). The WRDA 2007
also described more specifically how to accomplish the Federal
objective. The Federal investments must reflect national priorities,
encourage economic development, and protect the environment by seeking
to maximize sustainable economic development; by seeking to avoid the
unwise use of floodplains; and by protecting and restoring the
functions of natural systems and mitigating unavoidable impacts.
Consideration of the Guiding Principles and the application of the
Requirements in P&R through development of Federal water resources
investment decisions assists in achieving the Federal objective. The
WRDA provision did not provide a hierarchy for how to accomplish the
objective nor does this proposed rule.
National priorities may include general priorities (e.g., health
and safety) but can also include more specific priorities that emerge
and may evolve over time. There are also often multiple national
priorities at any one time, all of which should be considered and
reflected in Federal water resources investments to the extent
relevant. Such priorities can be found in enacted laws and
Administration priorities and are informed by stakeholder and community
engagements. The Corps would also fulfill their Tribal trust
responsibilities under applicable treaties.
For example, the PR&G calls for sustained economic development
through building more resilient
[[Page 12072]]
communities. The Federal water resources investments also must protect
and restore the environment, where applicable, as part of the effort to
maximize net public benefits to society. This protection and
restoration could be achieved partly via improvements made to the
environment through the proposed action, compliance with applicable
environmental laws and regulations, including/or through the avoidance,
minimization, and mitigation sequencing applied to impacts to the water
resources environment, and through assuring the greatest provision of
ecosystem services achievable that protects public health and welfare.
One means to accomplish the Federal objective is to seek to
maximize sustainable economic development. As described in the
definitions section of the proposed rule at 234.2(y), sustainable
economic development would provide the conditions where the coexistence
of humans and nature flourishes. Sustainable economic development would
improve the national welfare through investments that improve national
economic efficiency, but not at the expense of the water resources.
Rather, economic activity would proceed in such a manner that is not
negatively impacting the sustainability of the water resources
environment. In some cases, for example, nature-based solutions may be
both more resilient and maximize net public benefits. The sustainable
economic development Guiding Principle is further described in Section
234.6(c)(5) of the proposed rule and preamble.
In accordance with WRDA 2007, another means to accomplish the
Federal objective is through seeking to avoid the unwise use of
floodplains and flood-prone areas. This Guiding Principle is also
further described in Section 234.6(c)(2) of the proposed rule and
preamble. The key principle is to avoid actions that result in a
reduction in public health and safety or result in a floodplain that is
no longer self-sustaining. However, it is important to recognize that
many Corps Civil Works water resources development projects are out of
necessity located in floodplains and are not considered an unwise use
of floodplains simply due to their location. The Corps will strive to
sustain the floodplains natural and beneficial functions to the maximum
extent practicable in light of the project's purpose. For example,
public health and safety are considered in the evaluation and
formulation development of a proposed Corps water resources development
project, but this sometimes may result in a project that does not fully
contribute to the sustainment of floodplain natural and beneficial
functions.
The last means to accomplish the Federal objective provides that
the Corps shall protect and restore the functions of natural systems
and mitigate any unavoidable damage to natural systems. This concept is
embedded in the Corps' compliance with environmental laws and
regulations, such as the Clean Water Act and NEPA. In general, the
Corps aims to improve environmental conditions when possible, and when
not possible, sequences consideration of mitigation related to
potential damages as avoidance, minimization, and compensatory
mitigation. Certain Corps water resources development projects have the
goal to restore and protect aquatic ecosystems as their primary
purpose, such as aquatic ecosystem restoration projects under Section
206 of WRDA 1996 (Pub. L. 104-303), as amended.
Section 234.4(c) Net public benefits. This paragraph of the
proposed rule describes the net public benefits to society, which are
to be maximized. Net public benefits are to be used to justify water
resources development projects per WRDA 2007. Per the P&R, public
benefits encompass three goals--economic, environmental, and social. In
addition, public benefits include those that can be described in
monetary terms, and those that can be quantified or described using
other terms. The IG provides as a key aspect stating that the
environmental, economic, and social impacts are interrelated, and there
is no hierarchy among their goals in a PR&G analysis. In addition, the
P&R provides that solutions to water resource needs may produce varying
degrees of effects relative to environmental, economic, and social
goals and that no hierarchal relationship exists among these three
goals. As a result, tradeoffs among potential solutions will need to be
assessed and communicated during the decision making process. All key
benefits and effects relevant to the investment decision would be
displayed and given consideration. For a particular water resources
development project, the Corps study would take into consideration the
given study purpose and specific water resource challenge to
appropriately identify and assess benefits and effects across the
categories which will naturally vary across Corps studies.
Federal investments in water resources have been mostly based on
economic performance assessments under the P&G, which largely focus on
investments that will improve national economic efficiency. This focus
on national economic gains sometimes resulted in an unduly narrow
benefit-cost comparison of the monetized and quantified effects. The
P&G provided that contributions to NED would be expressed in monetary
units. Although the benefits in the other three accounts were included
in the overall analysis and available to decision-makers under the P&G,
they often, with some exceptions (e.g., aquatic ecosystem restoration
studies and dam safety studies), were not the key drivers in the final
decision-making as compared to the monetized and quantified national
economic efficiency effects.
The PR&G emphasizes that relevant environmental, social and
economic effects should all be considered and that both quantified and
unquantified information will form the basis for evaluating and
comparing potential Federal investments in water resources to the
Federal objective. The ASPs make clear that the Corps will use
monetized and quantified data to the extent practicable, but that
unquantified information will be fully considered as well. This more
integrated approach would allow decision-makers to view a more complete
range of effects of alternative actions and lead to more socially
beneficial investments. See preamble sections 234.9 and 10 for further
discussion on the use of unquantified data and decision-making.
A separate distributional analysis can be utilized to examine
regional economic benefits. The P&G included regional economic
development as one of four ``accounts'' for facilitating evaluation and
display of effects of alternative plans. As stated in the Background
section, the RED account registered changes in the distribution of
economic activity that result from each alternative plan. These
economic effects amount to a transfer of resources from one part of the
Nation to another (either from one region of the country to another, or
within a region). They accrue in a local area or region but are offset
by equivalent losses elsewhere in the country.
The PR&G implementation would include other potentially important
distributional effects, including environmental and social effects
considerations at the regional level. The non-federal interest and
local organizations and communities can provide valuable information to
inform these assessments for a proposed water resources investment,
providing that local knowledge and valuation as the Corps seeks to
identify more of a community-driven solution under the
[[Page 12073]]
implementation of the ASPs than what is implemented under the current
P&G policy.
Having a more holistic view and recognition that water resources
development projects can provide a multitude of benefits allows for the
whole story to be told regarding alternatives being considered for
Federal water resources investments. For example, this more holistic
view will enable more informed decision-making for Federal investments
to truly identify in the final array of alternatives what will best
enable resilience for the Tribal Nation, when applicable, or the
community, the region, and the Nation. Public benefits also include
consideration of public assets that contribute to community resilience,
such as by reducing the flood risk to property, housing, and other
existing infrastructure, etc.
Some benefits may be difficult to bucket into a category of
economic, environmental, or social. Analysts are encouraged to be as
specific as possible, and when categories cannot easily be assigned,
and to describe the relevance when evaluating alternatives. Double
counting should be avoided. If benefits appear to accrue to more than
one category, development of logic models, exploration with experts or
other methods can help specify benefits further and parse effects into
different categories, representing the full set of effects and avoiding
double counting. In addition, when economic, environmental, and social
goals compete, the Corps would describe such instances and include the
considerations in the tradeoff analysis (see 234.10(b)). The important
component is to consider complementary and consistent formulation of
the various benefits. Army solicits comment on whether net public
benefits should be described without the additional step to categorize
them into economic, environmental, and social in order to display all
benefits in their entirety without the risk of double-counting or
having to identify a specific benefit category when there may be
overlap.
Army is also soliciting comments on whether it should be
acknowledged that Tribal benefits are part of the Tribal trust
responsibility in implementing the PR&G and whether Tribal benefits
should be called out separately from ``public benefits''. In addition,
in many circumstances, Indigenous Knowledge can be used to inform the
benefits that may accrue as a result of any given alternative providing
more transparency on the entirety of benefits provided to better inform
decision making.
Some benefits are also difficult to monetize or quantify, for
example, non-use values of wildlife loss (e.g., existence or bequest
values), or some culturally valued experiences (e.g., spiritual
connection to nature and option to lead a subsistence way of life). In
this particular area, we solicit comments as to approaches and tools
that may be employed to best enable the Corps to have consistent and
transparent implementation, including through the use of any final
guidance provided by the Office of Management and Budget on ecosystem
services in response to its August 2, 2023 proposal (88 FR 50912).
The quantification of benefits relates to several evolving fields
and new methods may develop over time. The PR&G and the Corps' proposed
ASPs emphasize that benefits should be monetized when possible,
quantified when they cannot be monetized, and described when neither
monetization nor quantification is possible with available
methodologies and data. Where qualitative descriptions and analysis are
used, they should be of sufficient detail and quality to enable the
decision-maker to make informed decisions. In addition, the Army
solicits comment on whether life safety benefits should be specifically
identified, and if so, under which of the three ASPs benefits category,
social, environmental, or economic category (see Section 234.9(c) for
additional information on these categories).
Under the ASPs, consideration of the range of benefits (economic,
environmental, and social benefits) is the integral component of the
planning process. The process should look beyond simply starting with
the National Economic Development/National Ecosystem Restoration plan
and then only filling in the other requirements of the ASPs when those
benefits are needed for project justification.
Development of a comprehensive plan to address the water resources
challenge must begin in the earliest phases of the planning process and
would continue throughout the process, as detailed through the Federal
objective, Guiding Principles, and planning process framework provided
in this proposed rule. There may also be instances where the Corps'
existing tools and resources in calculating the four P&G accounts,
national economic development, regional economic development,
environmental quality, and other social effects, may still be relevant
in implementing the PR&G, where appropriate.
Section 234.4(d) Applicability. This proposed rule paragraph
describes the projects and programs that must use the PR&G framework
and outlines those projects and programs that are excluded from
performing a PR&G analysis. Essentially the PR&G will apply to all
Corps projects and programs that are not identified as excluded in
234.4(d)(2). Per the PR&G, it was never intended that PR&G apply to all
projects and programs for water resources agencies and the list of
exclusions is consistent with the PR&G exclusions and applicability
discussion. The Army invites comment on additional projects and
programs that should be covered under the PR&G or, conversely,
additional projects and programs to which the PR&G should not apply.
The proposed excluded projects and programs either fall below the
thresholds identified in Table 1 of the proposed rule, or are
considered to be small and routine such that it would not be
appropriate to have the PR&G apply. This does not mean that those
projects or programs do not have to follow the relevant laws,
regulations, and general planning processes simply because they are
excluded from PR&G. Even though such projects or programs would be
excluded from the full application of the ASPs and the PR&G, those
projects and programs should still strive to meet the intent of the
ASPs by applying similar concepts where relevant. With respect to a
project or program that meets a NEPA categorical exclusion, such
exclusion does not automatically trigger an exclusion for application
of the PR&G. However, many of these projects and programs may meet the
terms of an exclusion under both NEPA and the proposed ASPs.
Also, the proposed ASPs would also apply to non-Federal interests
who undertake feasibility studies, such as under Section 203 of WRDA
1986, as amended. The WRDA provisions, as amended, provide that the
study, and the process under which the study was developed and
conducted by a non-Federal interest would be reviewed by the Secretary
to determine whether it complies with Federal laws and regulations
applicable to feasibility studies of water resources development
projects. These would include this proposed rule.
In proposed paragraph 234.4(d)(2), some actions that are excluded
under the PR&G for the Corps' proposed ASPs include the Corps'
Regulatory Program as well as Section 408 actions as there is no
proposed Federal water resources investment being considered. As
provided in section 14 of the River and Harbors Appropriations Act of
1899, as
[[Page 12074]]
amended (33 U.S.C. 408), the Section 408 process serves to ensure that
an action proposed by another entity (a party other than the Corps) for
the temporary or permanent alteration or use of a civil works project
will not be injurious to the public interest and will not impair the
usefulness of that Corps project. Regulatory actions are listed in the
Interagency Guidelines as excluded activities. However, this exclusion
does not apply to regulatory compliance actions related to activities
that are subject to the PR&G, such as compliance with the Endangered
Species Act. Real estate actions of the Corps, such as easement
decisions on existing Corps lands and land disposal actions, are also
proposed to be excluded as these also do not result in a proposed
Federal water resources investment. Technical services programs, such
as Planning Assistance to States and Flood Plain Management Services,
are also proposed to be excluded as these programs support state and
local water resources planning efforts, rather than a proposed Federal
water resources investment. Similarly, these actions were excluded
under P&G as they do not develop Federal water resources planning
studies.
The Corps' PL 84-99 Program is also proposed to be excluded from
the PR&G as the program provides for emergency activities prior to,
during, and after a flood event. The framework for the PR&G generally
is not well suited for this program, under which the Corps prepares
for, responds to, and assists certain eligible communities in their
recovery after a flood or other natural disaster. The Army solicits
comment on whether modifications allowed under the PL 84-99 program
should not be excluded from the PR&G. Emergency actions in general
under the Corps' disaster response emergency operations are to be
excluded from the PR&G as a different set of procedures and
considerations must be employed in responses to emergencies, rather
than a traditional planning-type process. The Interagency Guidelines
provides that short-term actions to remove immediate danger to public
health and safety or prevent imminent harm to property or the
environment should be excluded. This would not apply to longer-term
actions to rehabilitate damaged resources or prepare for future
emergencies.
Also proposed to be excluded is the Corps' implementation of its
Water Infrastructure Finance and Innovation Act (WIFIA) program. The
criteria for that program are included in the final rule issued for
this program (88 FR 32661). In general, the Corps' WIFIA program is
authorized to provide credit assistance in the form of direct loans and
loan guarantees for investments by non-Federal interests to address dam
safety concerns at their non-Federal dams. Corps water resources
development projects are not eligible for funding under WIFIA and the
program is limited to financial assistance for non-federal dam safety
projects, so the PR&G would not apply. Similarly, environmental
infrastructure projects are proposed to be excluded. The Corps may
provide funding to certain of these non-federal projects such as
wastewater treatment systems where authorized by law. These also are
generally smaller-scale projects.
In addition, land management plans are proposed to be excluded from
implementing the PR&G for the Corps. Land management plans are broadly
used to guide the management and development of recreational, natural,
and cultural resources on Corps project lands throughout the life of
the Corps project. The Interagency Guidelines also provides that there
may be existing agency procedures that meet the purpose and intent of
the PR&G for Federal investments, which includes land management
planning processes. The Corps' development of land management plans is
subject to such equivalent procedures.
Also, operations and maintenance (O&M) activities carried out in a
manner consistent with an existing O&M manual or O&M plan for an
authorized project would be excluded under the proposed rule from the
PR&G. The original O&M envisioned by the original project authorization
would be considered and evaluated under the ASPs in the investment
decision making process. In the absence of changed conditions,
activities that are generally expected as part of normal, planned
operations may be excluded from PR&G analysis using an appropriate
threshold if they have been analyzed during the original project or
program analysis and are consistent with the existing approved O&M
manual or O&M plan. Compliance with other Federal statutes and laws
would still be required. However, the PR&G would apply when significant
changes to O&M plans are proposed or changes to meet new goals are
proposed that raise additional considerations for water resources
investments.
Two other types of activities proposed to be excluded from the PR&G
for the Corps are monitoring (e.g., water quality monitoring or fish
monitoring) and research. Such activities may be used to inform Federal
investments in a proposed or existing water resources development
project, but they are not water resources development projects or
investment decisions themselves. The Interagency Guidelines provide
that the PR&G is not intended to include data collection, except
insofar as its purpose is to inform an investment decision involving
permanent site-specific actions.
The Corps' Interagency and International Support and Support for
Others program actions are also proposed to be excluded. In addition,
these actions are provided on a reimbursable basis and as such are
assistance to other programs and not part of Federal investments as
other activities covered under the proposed ASPs. The Corps performs
these activities on a reimbursable basis. All of the work that the
Corps performs under this program is requested by other agencies, which
pay the Corps the full cost of providing these services. For example,
on a reimbursable basis, the Corps provides technical assistance under
this program to non-DoD Federal agencies, state and local governments,
Tribal Nations, private U.S. firms, international organizations, and
foreign governments. The Corps also provides engineering and
construction services, environmental restoration and management
services, research and development assistance, management of water and
land related natural resources, relief and recovery work, and other
management and technical services. While some of this work may be
related to a water resources investment by another Federal agency, it
is not related to an investment decision by the Corps and, as such, is
not covered under the proposed ASPs. Although excluded from the ASPs,
the Corps' international programs are subject to other international
environmental requirements and DoD environmental commitments.
In addition, those projects, programs, or plans that meet the
threshold criteria in the proposed Table 1 for exclusions are generally
for routine investments. In most cases, these investments would not
have significant adverse effects on water resources. Also included in
the proposed list of exclusions are those programs, plans, or projects
which fall under an exception at 234.3.
The Army solicits comment on whether additional exclusions should
be added, such as dredged material management plans, the Tribal
Partnership Program, the Continuing Authorities Program, and Major
Rehabilitation Evaluation Reports due to scope, scale, level of
investment, project partner, technical nature of product, etc. Some of
these also have programmatic
[[Page 12075]]
authorizations from Congress (i.e., Tribal Partnership Program and
Continuing Authorities Program) and as such will not follow the full
planning process provided in the proposed ASPs as they do not result in
a recommendation to the Congress. In addition, the Army solicits
comment on whether any of the actions identified as proposed exclusions
in the rule should not be excluded, in which case the ASPs would apply
to them. Also, the Army solicits comment on whether watershed studies
should be specifically included to ensure that they align with the
goals of the PR&G and result in better outcomes for integrated water
resources management. These studies do not fit into the categories
described above and additional clarity may be needed as to whether they
are covered under the PR&G. Section 729 of WRDA 1986, as amended, and
other specifically authorized watershed authorities allow the Corps to
study the water resources needs of river basins and regions of the
United States, in consultation with federal, state, tribal, interstate
and local governmental entities. These studies go beyond project
planning for specific Corps projects towards more comprehensive and
strategic evaluations and analyses that include diverse political,
geographic, physical, institutional, technical, and stakeholder
considerations. Watershed planning addresses identified water resources
problems and opportunities from any source, regardless of agency
responsibilities, and provides a shared vision of a desired end state
that may include recommendations for potential involvement by the
Corps, other federal agencies, or non-federal interests. Generally,
Corps watershed studies do not result in a water resources investment
recommendation. Instead, they highlight more strategic actions, some of
which may not be a Corps of Engineers responsibility. The three main
Civil Works missions of the Corps are: commercial navigation, flood and
storm damage reduction, and aquatic ecosystem restoration. The Army
solicits comment on whether Corps watershed studies should be excluded
from the PR&G.
234.5 Level of analysis. This section of the proposed rule
describes and defines the next step in the PR&G process under the
Corps' proposed ASPs. Once a decision is made that the PR&G applies
under 234.4, the next step is to determine what level of analysis
should be applied.
Section 234.5(a) Standard and scaled level of analysis. There are
two levels of analysis under the PR&G that are proposed to be applied
based on the scope and magnitude of the proposed projects, programs, or
plans; and the significance of the Federal investment in terms of
dollar value and potential environmental impacts. The different levels
of analysis allow for investment decisions to be made effectively and
efficiently. Just as not all investment decisions must trigger the
application of the PR&G, not all investment decisions that do trigger
the PR&G must require in-depth, extensive analysis. Many small, routine
activities would be excluded from the PR&G analysis under the proposed
rule (refer to 234.4(d)(2)) such as small-scale Tribal Partnership
Program projects or routine investments in invasive species removal,
while activities that are somewhat broader in scope but pose minimal
risks are proposed to be subject to a scaled PR&G analysis, and those
activities with larger potential impacts would be subject to a standard
analysis. A scaled PR&G analysis would generally include fewer
alternatives with a more streamlined formulation process and
justification procedures than a standard analysis, while still adhering
to the PR&G and resulting in a systematic decision. A scaled analysis
reflects the scope and complexity of the problem being assessed. The
proposed ASPs include Table 1, which provides the monetary threshold
criteria for a general guideline to be used for identifying the types
of projects, programs, or plans and their corresponding levels of
analysis. The Army solicits comment on whether the proposed rule
language regarding benefits/cost analysis in this section is adequate
or whether additional content or examples is needed in the rule text.
Various types of acceptable economic analyses and benefit
categories may be applied,\11\ such as transportation rate savings,
damages reduced, next least costly alternatives, commercial fishing,
recreation benefits, etc. In addition, there are measurement standards
by which such analysis may adhere, such as net changes to the ecosystem
goods and services provisioned by the environment. The Corps would use
best professional judgement in determining what is relevant to
consider. Early engagement can also assist the Corps in providing
considerations to inform selection of methodologies and benefit
categories.
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\11\ See Circulars A-4 and A-94 for more information.
---------------------------------------------------------------------------
For scaled analysis, the rule proposes that methods reliant on
secondary data sources may more frequently be used (e.g., benefit
function transfer methods, expert opinion, proxy valuations, windshield
analysis). Those same tools may also be used in the application of the
standard level of analysis when appropriate. The Army would also use
various modeling techniques for the cost-benefit analysis when
appropriate. The Army solicits comments on the types of analyses that
may best be used to evaluate the full range of public benefits under
both standard and scaled level of analyses.
Section 234.5(b) Determining the appropriate level of analysis.
This paragraph of the proposed rule describes the process for
determining the appropriate level of analysis for the PR&G. In addition
to the considerations and descriptions provided in 234.5(a) for the
scaled and standard analysis, as well as the criteria provided in the
proposed Table 1 to be used as a general guide, the proposed ASPs note
that professional judgment and available resources are also important
factors in determining the appropriate levels of analysis. In some
scenarios where a potential investment may meet the threshold criteria
in the proposed Table 1 for a scaled analysis, based on considerations
such as environmental or Tribal trust responsibilities or uncertainty
in the information to be used in a decision, it may be best to conduct
a standard analysis. And a similar scenario could occur in the reverse
circumstances, such as where a potential investment meets the threshold
criteria for a standard analysis but due to the routine nature or lack
of complexity a scaled analysis may be more appropriate. This is not
envisioned to be a common scenario. Even if a potential investment may
otherwise meet the criteria to be excluded from the PR&G under the
proposed Table 1, there may be circumstances that would nonetheless
trigger analysis under the PR&G. Some areas to consider when making
deviations from the criteria thresholds listed in the proposed Table 1
include: magnitude and significance of specific problems and
opportunities the investment seeks to address; significance of natural
resources within the study area; significance of the environmental
justice concerns; magnitude and significance of expected impacts of the
investment; expected investment scale and/or costs; complexity or
significance in science, engineering, or resource management; projected
service or operational life of the project or facility; stakeholder
concerns; authority under which the investment decision/recommendation
is made; uncertainty in decision variables and resulting risk exposure;
degree of performance or irreversibility of
[[Page 12076]]
potential investment decision; nature and extent of Tribal trust
responsibilities in the study area; or, cumulative effects of, or
controversy associated with, any of the above. Additional areas to
consider include, when impacts may vary across alternatives such that
analysis can help identify the best alternative, and when analysis will
help the public and decisionmakers understand the effects of the
project. Army solicits comments on additional considerations to be
applied when making a determination as to the appropriate level of
analysis under the PR&G, and whether additional clarity is needed on
how such determinations may be made.
Section 234.5(c) Scope and magnitude of analysis required. The
threshold criteria provided in the proposed Table 1 are guidelines to
establish an appropriate scope and magnitude for the analysis based on
the Federal cost (excluding the non-Federal share) of a proposed
activity, measured in terms of the present value of the Federal
investment. The present value is the current dollar value, after
discounting. The proposed Table 1 was taken straight from the
Interagency Guidelines. The monetary thresholds were designed to be
relevant to all the agencies implementing the PR&G to provide a common
framework and baseline. The Army solicits comment on whether the values
provided in Table 1 are the appropriate thresholds to apply for the
Corps' ASPs, and also whether the amounts should be adjusted for
inflation from the original amounts provided, which were developed in
2014. If inflation adjustments are appropriate, the Corps further
solicits what data should be used to make those adjustments going
forward, e.g., GDP deflator, CPI, or something else. The Army also
solicits comments on whether the Corps should account for the non-
Federal share of the costs in setting these thresholds, in order to
reflect the cost to society (Federal plus non-Federal) of the proposed
investment. In that case, the thresholds would be somewhat higher.
The Interagency Guidelines state that the PR&G specifically applies
to operational modifications, modernization of existing facilities, dam
safety modifications, culvert replacements, water conveyance, and fish
ladder modifications. The analysis of significant O&M investments of
this kind would be subject to the thresholds provided in proposed Table
1.
Operation and maintenance activities resulting in consequential
effects on water quantity or quality that have not been previously
analyzed should be appropriately analyzed using either the project- or
programmatic-level processes laid out in the proposed rule. More
significant operational changes, such as adding a new project purpose
or significantly modifying project outputs, warrant analysis under the
PR&G. However, routine O&M activities are proposed to be excluded (see
234.4(d)).
To apply proposed Table 1 to an investment under consideration, the
Corps would first determine whether the action is a project, program,
or plan, then identify the appropriate relevant level of Federal
investment under consideration. The Federal investment includes all
capital and labor costs associated with the potential investment. Once
those two steps have been made, the Corps can determine the recommended
appropriate level of analysis for the Federal investment. However, in
applying the proposed threshold criteria, the considerations and
judgement described in 234.5(b) should be applied to determine whether
a deviation from the criteria is appropriate. A scoping effort can be
helpful in providing information needed to determine whether a
deviation may be warranted.
This paragraph also describes how to apply the threshold criteria
for project, programmatic, and individual plan levels. A project-level
analysis should be applied to water resources investments when the
Corps has discretion in investment decisions for the planning process
on a particular project. Project-level analyses typically require more
detail and focus on a narrower scope and/or scale. This would include
all of the relevant existing and proposed Federal, state, and local
investments in infrastructure or ecosystem restoration, including any
planned modifications or replacements to existing facilities, and their
operation and maintenance. Programmatic-level analyses require the
detail necessary to ensure decision-makers have sufficient information
to make an informed decision, but it may be conducted differently than
project-level analyses. For example, the scale and/or scope will likely
be greater with a similarly broader level of detail. Programmatic-level
analysis can apply when the Corps proposes a set of similar actions
analyzed under one decision document. The Corps would apply the
broadest and most rigorous analysis (e.g., standard analysis for a
programmatic-level analysis) wherever appropriate. The Corps would not
split an action that is more appropriate under programmatic review into
smaller project-level actions simply to avoid any perceived analytical
burdens. Such actions may include those that have cumulative effects on
water resources. If an individual project within this broader program
is noteworthy or raises particular concerns, the Corps may decide to
evaluate that specific project individually under the PR&G. Care would
be taken to ensure that evaluating individual projects does not lead to
underestimation or exclusion of cumulative effects. The Army solicits
comment on whether more clarity is needed for which types of projects
would fall under the project vs. program vs. plan criteria. The
Interagency Guidelines state that if the Corps develops a revised
proposed Table 1 specific to the Corps, the following considerations
should be taken into account: (1) thresholds relevant to the specific
activities of the Corps; and (2) criteria relevant to the Corps for
determining the level of analysis. The Army solicits comment on whether
either of those considerations warrant a revision to proposed Table 1
for the Corps' ASPs.
Section 234.6 The Planning Process.
Section 234.6(a) Introduction. This proposed paragraph describes
how the planning process will incorporate the Guiding Principles from
the PR&G in the analysis and development of Corps Federal investments
in solving water resources problems. The section describes the planning
process as orderly, systematic, and iterative, and establishes the
desired outcome as investment advice in the form of a plan or plans
that seek to maximize net public benefits. Investment advice supports
the decision-making process. It provides analysis and a potential
solution for the subject water resources problem and the Chief of
Engineers uses such investment advice to make a recommendation to the
Congress for consideration in the authorization process. Ultimately,
the Congress decides whether or not to authorize a particular
recommendation and how to consider such investment advice. The plan
recommendation includes investment advice and shapes the federal role
in a given planning situation. As in most Corps documents, Records
Management and Freedom of Information Act (FOIA) requirements should be
considered throughout the development of PR&G analysis documents, with
the inclusion of an index to facilitate the collection of records for
any future FOIA requests.
Section 234.6(b) NEPA. This proposed paragraph encourages the Corps
to integrate the NEPA and the PR&G processes as much as possible to
produce a single analytic document to meet both requirements. This
concept is
[[Page 12077]]
discussed in the Interagency Guidelines and is currently common
practice for the Corps' planning processes. Through the integration, to
the extent possible, a reduction in duplication is anticipated
especially when the same information is being relied on when performing
the PR&G and NEPA analyses. A single analytic document also could help
to achieve reduced workload as well as consistency across alternatives
analyzed and other components that are covered in both the PR&G and
NEPA analyses. However, there may be instances when analyses under the
PR&G results in a modification to the NEPA analysis, such as when an
alternative under consideration is eliminated from further review
because it conflicts with the Federal objective or a Guiding Principle.
In this case, the Corps should include in the NEPA documentation why
such alternative is not being carried forward in the review process.
The formulation criteria are not appropriate screening criteria under
NEPA. The Corps would include in the analysis an alternative that meets
the purpose and need under NEPA and is feasible and reasonable. In all
cases, the Corps would comply with NEPA while implementing the PR&G.
Compliance under NEPA and this proposed rule, if finalized, does not
eliminate the Corps' obligations under other statutory requirements
(e.g., Endangered Species Act compliance) or fulfillment of Tribal
trust responsibilities. For example, Corps proposed projects involving
the discharge of dredged or fill material into waters of the United
States would be developed in accordance with the guidelines promulgated
by the Administrator of the Environmental Protection Agency (EPA) in
conjunction with the Secretary of the Army under the authority of
Section 404(b)(1) of the Clean Water Act (CWA) of 1972, unless these
activities are exempted by Section 404(f) (40 CFR 230.1(a)). The Corps
should seek to maximize integration and reduce redundancy or
duplication with other federal law requirements and compliance with
statutory provisions.
Section 234.6(c) Guiding Principles. This section describes the
Guiding Principles for the planning process that the P&R identifies,
which are: environmental justice, floodplains, healthy and resilient
ecosystems, public safety, sustainable economic development, and a
watershed approach. The Guiding Principles are intended to be used as
overarching concepts to promote through water resources investments.
They are described below and in the proposed rule in alphabetical
order.
Section 234.6(c)(1) Environmental justice. A focus of the PR&G and
these ASPs is environmental justice and meeting the needs of Tribal
Nations and communities with environmental justice concerns to achieve
environmental justice for all populations. The ASPs provide a
description of environmental justice consistent with other agency
definitions and with existing Corps policy \12\ on environmental
justice. The proposed paragraph directs that environmental justice
considerations shall be incorporated into all phases of the planning
process and decision-making for Corps Civil Works programs. The
proposed ASPs require that the planning process go beyond ``do no
harm'' to also ensure meaningful engagement with Tribal Nations and
other communities with environmental justice concerns as well as to
increase community access to benefits provided by Civil Works programs.
Working within congressional study authorizations provided to the
Corps, the ASPs' guiding principle of environmental justice drives
inclusion of restorative justice for communities with environmental
justice concerns. Environmental justice efforts seek to find access for
all to long-term, sustainable solutions. The ASPs require that burdens
on Tribal Nations and communities with environmental justice concerns
\13\ that are not avoidable are to be mitigated.
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\12\ <a href="https://www.army.mil/article/254935/assistant_secretary_of_the_army_for_civil_works_issues_environmental_justice_guidance_to_the_army_corps_of_engineers">https://www.army.mil/article/254935/assistant_secretary_of_the_army_for_civil_works_issues_environmental_justice_guidance_to_the_army_corps_of_engineers</a>, last accessed on
January 31, 2024.
\13\ To identify communities with environmental justice
concerns, the Corps would use a suite of tools and sources of
information, such as the Council on Environmental Quality's Climate
and Economic Justice Screening Tool (CEJST), the EPA's EJScreen
Tool, Indigenous Knowledge, state or local data or tools, and
community- or resident-driven information. The CEJST ((<a href="https://screeningtool.geoplatform.gov/">https://screeningtool.geoplatform.gov/</a>), last accessed on September 21,
2023, identifies disadvantaged communities that have been
marginalized by underinvestment and overburdened by pollution and
was developed for agencies to use for the Justice40 Initiative and
other resource allocation purposes. There may be some communities
that are not considered disadvantaged by the CEJST because they do
not meet the low-income threshold, but that face many environmental
burdens and could be considered to have environmental justice
concerns. The Corps would also evaluate any other relevant tools,
including locally relevant data and any information received in
public comment from any local communities with environmental justice
concerns on unavoidable impacts and potential mitigation.
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By removing the potential barriers to community participation in
the planning process and the potential barriers to receiving the
benefits of Federal investments, the Corps, in its implementation of
the PR&G, will strive to provide equal access to the Corps' services
and programs and to ensure fairness in decision-making. As each
community has different needs, allocation of resources for engagement
may be different for different communities in order to reach an
equitable outcome of participation opportunities. The Army acknowledges
that every Tribal Nation and community with environmental justice
concerns is unique, and may have different or preferred ways of
engaging, different areas of concern, and different considerations for
ways to address those concerns. For engagement, this may entail the use
of different languages to ensure language access is achieved to support
meaningful engagement, or various methods of providing information via
written, oral, and virtual formats to ensure accessibility for
individuals with disabilities, meetings held in the communities, etc.
The Corps would ensure social (including health) environmental
justice factors are evaluated during the planning process, to include
consideration of such factors throughout the lifecycle of a water
resources investment, and that consideration should be given to impacts
that could affect Tribal Nations and communities with environmental
justice concerns differently than other communities. For example, the
historic disproportionate burden that a community may have faced in the
past related to a lack of investment to reduce flood risks, or to
exposure to toxins, should be considered in the impacts assessment in
the planning process, similar to a cumulative impacts approach. An
incremental change in an environmental impact may result in
insignificant impacts to some communities, but significant impacts to
others (e.g., a Tribal Nation or community with environmental justice
concerns). In addition, the same could be said in the converse with
benefits assessment. A small increase in recreational opportunities may
have a much larger benefit to a community that has environmental
justice concerns and also has limited access to recreational
opportunities than it would benefit another community, which has
environmental justice concerns but already has access to recreational
opportunities. Potential issues that may be evaluated during the
planning process for positive or negative impacts on a community with
environmental justice concerns also may include, but are not limited
to: exposure to climate-related risks and opportunities for climate
resilience, factors that subject a community to poorer health or
[[Page 12078]]
environmental conditions, subsistence hunting and gathering, Tribal
resources of cultural and religious significance, cultural resources,
access to greenspace or other natural areas, community values, factors
that contribute to poorer physical or mental health conditions, income
level, education level, and crime. Indigenous Knowledge is also a
critical component and source for the evaluation process related to
environmental justice concerns. Such an evaluation process would help
the Corps assess risk, including perceived risk, and economic measures
by using scientific factors and Indigenous Knowledge in risk
assessments to characterize the nature and magnitude of human health
and ecological risk from contaminants and other stressors that may be
present.
In analyzing each alternative's potential environmental justice
impacts, agencies can also use these tools to ensure a holistic view of
the potential broader social effects. Environmental justice should be
accounted for in all areas being assessed under the PR&G, the economic,
environmental, and social, rather than solely as a social
consideration. Every application of the PR&G would contain case-
specific environmental justice strategies and considerations. The goal
under this Guiding Principle of the PR&G, therefore, is to ensure that
the Corps works to reduce barriers to equal opportunity in engagement
and participation in the planning process for Corps water resources
development projects to produce more sustainable and resilient
solutions that will help these communities, particularly those that are
among the most vulnerable, to reach their fullest potential. A key
component of this is to listen to the communities and ensure that they
are engaged throughout the planning process. The communities themselves
will likely help identify concerns and solutions to their water
resources problems and opportunities as well as participate in the
identification of any potential effects, mitigation measures, and
benefits, including through sharing Indigenous Knowledge, as they deem
appropriate.
In implementing the proposed ASPs, the Corps would ensure that it
considers the opportunities to overcome past inequities, and identifies
any disproportionate and adverse public safety, human health, or
environmental burdens of proposed water resources investments on
communities with environmental justice concerns, including cumulative
impacts for already overburdened communities. This is consistent with
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All (88 FR 25251). The Corps would use all
available means to gather such information, including Indigenous
Knowledge and information received directly from communities. The Corps
would seek to identify solutions that would eliminate or avoid those
disproportionate adverse effects. Each alternative analyzed would be
transparent in the discussion of the effects as well as benefits to
Tribal Nations and other communities with environmental justice
concerns, where applicable.
The Corps would use available tools and resources to identify and
describe communities with environmental justice concerns. This may
include a suite of tools and sources of information, such as the
Council on Environmental Quality's Climate and Economic Justice
Screening Tool,\14\ the EPA's EJScreen Tool,\15\ Indigenous
Knowledge,\16\ state or local data or tools, and community- or
resident-driven information. The Army solicits comment in particular on
how the navigation program can use tools and resources to directly
assess and, as appropriate, demonstrate project benefits for
disadvantaged communities, and other nearby communities.
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\14\ <a href="https://screeningtool.geoplatform.gov/">https://screeningtool.geoplatform.gov/</a>, last accessed on
January 31, 2024. Federal agencies use the CEJST to help identify
disadvantaged communities that will benefit from programs included
in the Justice40 Initiative and other statutory programs that direct
resources to disadvantaged communities.
\15\ <a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>, last accessed on January 31,
2024.
\16\ See OSTP-CEQ-IK-Guidance.pdf (<a href="http://whitehouse.gov">whitehouse.gov</a>) for
additional information, last accessed on January 31, 2024.
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Section 234.6(c)(2) Floodplains. The proposed ASPs highlight the
importance of floodplains and adopt the language of WRDA 2007 to avoid
the unwise use of floodplains, and to minimize impacts to floodplains
if those areas cannot be avoided. Floodplains are critical aspects of
watersheds and connect land and water ecosystems while supporting high
levels of biodiversity and productivity. Floodplains with unaltered
natural and beneficial functions can increase the resilience of
communities. There is no specific floodplain return interval identified
for use in the PR&G and as such the floodplain should be considered on
a case-by-case basis, as appropriate to evaluate the particular water
resources problem or opportunity in that community and to identify the
full range of reasonable alternatives.
As part of the Corps' implementation of this Guiding Principle, the
Corps will continue to implement the Federal Flood Risk Management
Standard (FFRMS), where appropriate, which is a flexible framework to
increase reliance against flooding and help preserve the natural values
of floodplains as provided in Executive Order (E.O.) 13690 (80 FR
6425).\17\ Executive Order 14030 (86 FR 27967), Climate-Related
Financial Risk, reinstated the FFRMS as well as clarified that the
guidelines for floodplain management under E.O. 13690 (80 FR 6425),
Establishing a Federal Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder Input, remain in effect.
The FFRMS provides four potential methods for delineating flood hazard
areas, with the preferred method being the Climate-Informed Science
Approach (CISA).\18\ The proposed ASPs recognize and incorporate the
requirements of E.O. 13690 and FFRMS. The Corps water resources
investments may include facilities that must be located in the
floodplain to provide a desired function (e.g., levees). The Corps
would implement CISA methods for all Civil Works studies via online
tools and technical guidance. As provided in the IG, the Corps would
continue to incorporate considerations such as sea-level rise and rely
on the best available actionable science on both current and future
risk when planning proposed water resources investments.
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\17\ E.O. 13690 was revoked by E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects (82 FR 40463), but
was later reinstated by E.O. 14030, Climate-Related Financial Risk
(86 FR 27967).
\18\ The Guidelines for Implementing Executive Order 11988,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input (2015) identify CISA as
the preferred FFRMS approach when climate science and future
conditions data are available and actionable. Where data are not
available or actionable for CISA, the FVA and 0.2PFA are acceptable
approaches.
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The CISA, as implemented by the Corps, considers two broad
categories of climate change impacts on flood hazards: inland and
coastal. Some projects located in the estuarine transition zone between
inland and coastal water bodies may be required to consider both kinds
of impacts. In the coastal zone, the Corps primarily considers the
effects of relative sea level change, which can have a significant
impact on the flood hazard. Internal Corps guidance (Engineer
Regulation 1100-2-8162) \19\ requires Corps project delivery teams to
consider the effects of sea level change when formulating,
[[Page 12079]]
selecting, and evaluating project alternatives. In addition, another
internal guidance document (Engineer Pamphlet 1100-2-1) \20\ provides
technical information for how this consideration should be achieved,
with techniques specified for each Corps Civil Works program area.
---------------------------------------------------------------------------
\19\ <a href="https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/ER_1100-2-8162.pdf">https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/ER_1100-2-8162.pdf</a> Incorporating Sea Level Change in
Civil Works Programs, last accessed January 31, 2024.
\20\ <a href="https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP-1100-2-1.pdf">https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP-1100-2-1.pdf</a>, Procedures to Evaluate Sea Level
Change: Impacts, Responses, and Adaptation, last accessed January
31, 2024.
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Consideration of relative sea level change is made more accurate,
timely, efficient, and reproducible through the use of web-based tools.
The Sea Level Curve Calculator allows the user to plot and tabulate the
three sea level scenarios for any NOAA National Water Level Observation
Network (NWLON \21\) tide gage with sufficient period of record, along
with coastal extreme water levels, other federal and local scenarios,
tidal and geodetic datums, and water elevations critical to project
performance. The Sea Level Tracker also allows plotting and tabulation
of these three scenarios (see footnote 16, and consistent with the
three scenarios proposed by the National Research Council as updated by
the National Oceanic and Atmospheric Administration,\22\) alongside
linear trendlines and computed water levels of various frequencies and
averaging periods, based on observations. The Corps has also produced a
static atlas of observed sea level change for offline viewing, and a
specific calculator for the high-subsidence environment of coastal
Louisiana. More information on these tools may be found at the Corps'
public tools web page.\23\ The Corps would use the social cost of
greenhouse gases where appropriate throughout implementation of the
ASPs (88 FR 1196).
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\21\ <a href="https://tidesandcurrents.noaa.gov/nwlon.html">https://tidesandcurrents.noaa.gov/nwlon.html</a>, last accessed
January 31, 2024.
\22\ <a href="https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html">https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html</a>, last accessed January 31, 2024.
\23\ <a href="https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/sea_level_change/">https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/sea_level_change/</a>, last accessed January
31, 2024.
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The effects of climate change on pluvial, riverine, and lake flood
risk is more complex and uncertain than the effects of sea level
change. For inland hydrologic analyses, Corps teams implement the CISA
using internal agency guidelines.\24\ Teams follow four basic steps to
characterize potential project vulnerabilities to the effects of
climate change on inland hydroclimatology: a review of available
scientific literature; statistical detection of trends and changes in
observed data; examination of projected future hydroclimatology based
on climate modeling; and assessment of business-line specific
indicators of project performance risks, which are related to the
primary purpose or purposes of the proposed project.\25\
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\24\ <a href="https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14">https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14</a>, Guidance for Incorporating Climate
Change Impacts to Inland Hydrology in Civil Works Studies, Designs,
and Projects, last accessed January 31, 2024.
\25\ <a href="https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/">https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/</a>, last accessed
January 31, 2024.
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To aid teams in performing these analyses, the Corps has produced a
suite of resources, several of which are publicly available. A series
of 21 summaries of scientific literature, organized by two-digit
hydrologic unit code (HUC), simplifies the review of scientific
articles relevant to project locations. The Time Series Toolbox \26\
and Nonstationarity Detector \27\ are two tools to perform statistical
tests for changes in observed data and identify the timing and nature
of those changes. The Timeseries Toolbox also performs time series
modeling, breakpoint analysis, seasonal decomposition, and statistical
summaries of user-provided data.
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\26\ <a href="https://climate.sec.usace.army.mil/tst_app/">https://climate.sec.usace.army.mil/tst_app/</a>, last accessed
January 31, 2024.
\27\ <a href="https://climate.sec.usace.army.mil/tst_app/">https://climate.sec.usace.army.mil/tst_app/</a>, last accessed
January 31, 2024.
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The Climate Hydrology Assessment Tool (CHAT \28\) presents
projected temperature, precipitation, and streamflow for 64
combinations of climate model and greenhouse gas emissions scenario, at
the scale of the HUC-8 watershed. These projections are combined with
business-line specific indicators of project vulnerability in the Civil
Works Vulnerability Assessment Tool, which is not publicly accessible
outside the Corps. This tool reveals the dominant sources of climate
vulnerability and regions of particularly high or low vulnerability to
various climate change effects, to inform evaluations of potential
project impacts and corresponding adaptation options. More information
on Corps tools for analysis of climate change effects on inland
hydroclimatology is available through the Corps web page.\29\
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\28\ <a href="https://climate.sec.usace.army.mil/chat/">https://climate.sec.usace.army.mil/chat/</a>, last accessed
January 31, 2024.
\29\ <a href="https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/Climate-Impacted_Hydrology/">https://www.usace.army.mil/corpsclimate/Public_Tools_Dev_by_USACE/Climate-Impacted_Hydrology/</a>.
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In addition to guidance on Climate Preparedness and Resilience, the
Corps has also produced guidance for implementation of resilience
principles across the agency. The internal agency guidance on
resilience (Engineer Pamphlet 1100-1-2 \30\ and 1100-1-5,\31\ and
Engineering and Construction Bulletin 2020-6) \32\ detail how Corps
teams incorporate resilience principles into planning, design, and
construction. While not related to hazard area delineation under the
FFRMS, these documents can help inform lasting responses to those
hazards. The Corps reviews and updates the tools and guidance on an
ongoing basis, when necessary.
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\30\ <a href="https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_1100-1-2.pdf">https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_1100-1-2.pdf</a>, U.S. Army Corps of
Engineers Resilience Initiative Roadmap, last accessed January 31,
2024.
\31\ <a href="https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP%201100-1-5.pdf">https://www.publications.usace.army.mil/Portals/76/Users/182/86/2486/EP%201100-1-5.pdf</a>, U.S. Army Corps of Engineers Guide to
Resilience Practices, last accessed January 31, 2024.
\32\ <a href="https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2020-6">https://www.wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2020-6</a>, Implementation of Resilience
Principles in the Engineering and Construction Community of
Practice, last accessed January 31, 2024.
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The Corps implements four principles related to resilience:
prepare, absorb, recover, and adapt. These principles provide a
lifecycle perspective for resilience-related actions in recognition of
the fact that adverse events happen and conditions change over time.
This includes the ability to anticipate, prepare for, and adapt to
changing conditions and withstand, respond to, and recover rapidly from
disruptions. The Corps contributes at three levels of applied
resilience: (1) project, (2) system, and (3) community. These three
levels of resilience are interdependent, and actions taken at any level
will ultimately affect the others.
The proposed paragraph in the proposed rule on the Guiding
Principle for floodplains notes that Corps action may be located in
floodplains where that is the best way to address the water resources
problem or opportunity, such as a levee system that helps to reduce a
flood risk. Such placement does not automatically trigger the labeling
of a particular flood risk management measure as an ``unwise use of
floodplains.'' The proposed ASPs also require a fully nature-based
alternative to be included in the final array of alternatives, when
appropriate, which also ensures full visibility of alternative
approaches regarding the use of floodplains to meet the Guiding
Principle as well as the principles of EOs 13690 (80 FR 6425) and 11988
(42 FR 26951), as amended.\33\ Where a fully
[[Page 12080]]
nature-based solution is not feasible or would not be fully effective,
the proposal encourages the Corps to include nature-based solutions in
other alternatives in the final array, where appropriate, as such
solutions are required by law to be considered by the Corps in its
water resource development project planning process.
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\33\ E.O. 11988, Floodplain Management, was amended by E.O.
13690, Establishing a Federal Flood Risk Management Standard and a
Process for Further Soliciting and Considering Stakeholder Input.
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The P&R provides that Federal actions should seek to reduce the
Nation's vulnerability to floods and storms. However, that may
necessitate water resources development projects located in the
floodplain. The Corps would strive to sustain the floodplains' natural
and beneficial functions to the maximum extent practicable given the
project's purpose and need.
The proposed rule provides that the Corps would avoid unwise uses
of the floodplain where possible. This includes uses that would
significantly increase or shift flood risks to other populated areas,
or otherwise would result in adverse net impacts to human health,
safety, welfare, property, natural resources, or the natural and
beneficial functions of floodplains. Under this Guiding Principle, the
Corps would comply with E.O. 11988 (42 FR 26951), E.O. 13690 (80 FR
6425), and E.O. 14030 (86 FR 27967), and would implement FFRMS through
CISA. This will ensure that there is no significant increase or
transfer of flood risk to other populated areas, considering a systems
approach that includes integrated water resource management. It also
will ensure that the proposed water resources investment would not have
a disproportionate effect on communities with environmental justice
concerns or vulnerable populations, considering the relevant current,
future, and potential economic, environmental, and social risks, costs,
impacts, and benefits. Where this is not feasible, the Corps would
identify and communicate the potential adverse effects on floodplain
functions.
Section 234.6(c)(3) Healthy and resilient ecosystems. The proposed
ASPs reinforce WRDA 2007's direction to protect and restore ecosystem
functions and to minimize and mitigate those impacts if they cannot be
avoided. Ecosystems are dynamic complexes of plant, animal,
microorganism, and other living communities and the non-living
environment interacting as a system. Ecosystems provide important
services to humans both directly and indirectly, and they also
encompass vital intrinsic natural values.
In order to implement this proposed Guiding Principle in the Corps'
ASPs, the Corps would develop alternatives that first seek to improve
environmental conditions, then avoid any adverse environmental impact.
If there are any remaining adverse impacts that are unavoidable, the
alternatives would seek to minimize those adverse environmental
impacts. When impacts are unavoidable, compensatory mitigation for
adverse effects would be required as mandated by laws and regulations,
such as under the Clean Water Act. This is generally known as
mitigation sequencing and is described in regulations such as under the
Clean Water Act section 404(b)(1) guidelines (40 CFR 230).
The Corps would seek to enhance the health and resilience of the
natural environment in alternative plans, where feasible and
appropriate. When formulating a project primarily for a purpose other
than aquatic ecosystem restoration, the Corps should consider
alternatives that would better protect or help to restore the natural
ecosystem. A resilient ecosystem may provide the most cost-effective
option for achieving a project purpose, and has the capacity to respond
to changes, including climate change. Resilient ecosystems can enhance
services provided by the natural environment as well as contribute to
the economic vitality of the Nation. For example, the Corps can
incorporate nature-based solutions, such as restored vegetated beach
dunes or oyster reefs, into a coastal storm risk management water
resources development project. Such incorporation of nature-based
solutions is encouraged under the reinstated E.O. 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input (80 FR 6425), where
possible.
Ecosystem health is a measure of the performance of complex and
interrelated systems. Ecological processes function normally, within
the range of natural variability, in a healthy ecosystem. Ecosystem
health is often expressed in terms of ecosystem functions, as reflected
in the third part of the Federal objective in the P&R. Functions can be
particularly hard to measure, whereas the services such functions
provide can be more readily measured. A healthy ecosystem also includes
organization, structure (e.g., biodiversity), and resilience. There are
assessment methods to measure indicators of ecosystem functions (e.g.,
hydrogeomorphic approaches, California Rapid Assessment Method,\34\
etc.) The use of ecosystem services as a proxy for ecosystem function
tends to put a more anthropocentric focus on measuring ecosystem health
versus a more habitat-based focus. This can be particularly challenging
when applied to the Corps' aquatic ecosystem restoration mission, which
does not seek to maximize ecosystem services that may be more easily
monetized (e.g., hunting, fishing, or timber sales) but rather focuses
on improvements to the functions of the aquatic resources that will
benefit the overall aquatic ecosystem. The Army solicits comment on
whether there are alternative forms to measure ecosystem health such as
specific assessment methods, in particular for the Corps' aquatic
ecosystem restoration mission.
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\34\ <a href="http://www.cramwetlands.org">www.cramwetlands.org</a>, last accessed on January 31, 2024.
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Ecosystems are resilient when they are able to respond to and
maintain their structure and function under external stress, including
climate change and invasive species. Measures of ecosystem resilience
often address its two basic components: (1) the magnitude of stress an
ecosystem can absorb before fundamentally and irrevocably changing; and
(2) the amount of time required before an ecosystem returns to its pre-
stressed condition or to another stable condition that functions in
ways comparable to its original state. Some simple measures of
ecosystem resilience include floodwater storage capacity and population
recovery time for an appropriate, scientifically sound surrogate for
designated species.
However, systems-level models are needed to accurately describe the
interactions of ecosystem components under stress and predict their
response. No standard methods or models for measuring ecosystem
resilience currently exist. Research on ecosystem resilience is rapidly
changing how it is described and measured. Best available tools and
methods would be used when evaluating ecosystem resilience of
alternatives. The Army solicits comment on particular models, tools,
methodology or other information that may be helpful in assessing
ecosystem resilience, such as the use of keystone species to provide
insight on resilience under changing conditions.
When evaluating water resources investment alternatives, the health
of the affected ecosystem should be measured in its current condition
(baseline) and projected under each of the alternatives being
considered. Where feasible and appropriate, alternatives also should be
developed that would help to restore the health of a damaged ecosystem
to a less degraded and more natural condition, where required by law
(NEPA, ESA, etc.) or where the non-federal interest or others
[[Page 12081]]
agree to provide the non-federal share of the cost of this analysis.
Section 234.6(c)(4) Public safety. The proposed ASPs explicitly
call for alternatives to avoid, reduce and mitigate significant risks
to public safety. Where appropriate, the Corps will incorporate
measures to reduce the risk of loss of human life in the formulation of
alternatives to address flood and coastal storm risks.\35\ The Corps
would use available and appropriate tools and methodologies to evaluate
the available options to reduce this risk. Although some other agencies
use monetized life loss in various decision-making contexts, the
proposed ASPs do not require monetization. The Army solicits comment on
this issue.
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\35\ See, e.g., Planning Bulletin on Incorporating Life Safety
into Flood and Coastal Storm Risk Management Studies, PB 2019-04,
<a href="https://planning.erdc.dren.mil/toolbox/library/PB/PB2019-04.pdf">https://planning.erdc.dren.mil/toolbox/library/PB/PB2019-04.pdf</a>,
last accessed on January 31, 2024.
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The proposed ASPs require the assessment of potential threats to
people, including both loss of life and injury, from natural events in
the determination of existing and future conditions as well as the
decision-making process. Public safety threats are those resulting from
environmentally-related events. The Corps would incorporate reasonable
and appropriate public safety practices in its proposed water resources
investments. In formulating and evaluating the alternatives, the Corps
would use appropriate risk-based analysis techniques, including
quantitative methods where practicable, to identify, address, and avoid
any additional risk to public safety that a proposed water resources
investment might otherwise present.
The Corps would also include measures to manage and communicate the
residual risks. The Corps would describe how the alternatives may
affect the residual risks, as well as the reliability and durability of
those estimates, and would share such evaluations with the public for
transparency as well as to inform the investment decision.
In this manner, decision-making would be improved by developing
risk-reduction alternatives or recommending alternative courses of
action to address potential safety issues, improving the capability to
plan, prioritize, and implement risk-reduction actions, and identifying
and communicating residual risk. In line with the PR&G, risk analysis
to address public safety issues, including public health issues, would
include relevant external factors, site-specific considerations, and
quantified and non-quantified approaches to evaluate risks to public
safety.
The Corps, other Federal agencies, Tribes, state and local
governments, non-Federal interest, and the affected public have a
shared responsibility in flood risk management, including reducing the
associated public safety risks. In implementing the ASPs, the Corps
would work with each of these parties to help them understand their
respective roles and responsibilities. The Army solicits comment on
whether the description of public safety as proposed should be
broadened, as public safety in general may also be threatened by acts
of man, such as a terror attack causing a dam failure, or negligence,
for example. The Army solicits comment on whether additional threats to
public safety should be included for consideration beyond those related
to natural events.
Section 234.6(c)(5) Sustainable economic development. Federal
investments in sustainable economic development activities contribute
to the Nation's resilience. Sustainable is defined in the proposed rule
at 234.2(y). As provided in the Guiding Principle under the PR&G,
alternative solutions for resolving water resources problems should
improve the economic well-being of the Nation for present and future
generations through the sustainable use and management of water
resources. The proposed ASPs describe sustainable economic development
and call for economic, social, and environmental metrics to measure
impacts to be incorporated into the analysis of alternatives. The
analysis for sustainable economic development would include information
on environmental resources and socio-economic conditions (e.g., income,
demographics, etc.) in the affected area and how those resources and
conditions may change over time. Physical capital, such as value or
costs to maintain, may also be presented if relevant. The Corps would
use this analysis, as well as the expected outcomes, as no standard set
of metrics exist for analyzing sustainable economic development.
As there are likely unintended effects that would be considered,
metrics should be identified for both desired and other outcomes.
Measures to consider in evaluating sustainable economic development
include economic measures, social measures, and environmental measures.
Additional measures could also be incorporated where necessary. The
assessment would capture all of these measures. Economic measures may
include net economic benefits and their distribution across vulnerable
populations, income levels, unemployment considerations, labor force
participation rates, job growth, among others where applicable. Social
measures may include poverty rates, educational attainment, crime rate,
disease rates, life expectancy and others, where applicable, which
should be stratified by demographic metrics such as gender, age, race/
ethnicity, etc. Environmental measures may include measures of air
quality, presence of priority pollutants, hazardous wastes, changes in
land use/land cover, water quality issues (e.g., Clean Water Act
Section 303(d) listed), species distribution patterns, endangered or
threatened species, wildlife prevalence, diversity, changes in
ecosystem services and their impact on wellbeing, among others where
applicable. The economic, social, and environmental measures would be
stratified where appropriate.
Section 234.6(c)(6) Watershed approach. Another Guiding Principle
from the PR&G is the use of the watershed approach in the planning
process. Watershed is defined in the proposed rule at 234.2(yy). The
proposed ASPs require that upstream and downstream relationships are
considered in formulating alternatives and in evaluating benefits and
costs.
In some cases, a proposed Corps water resources development project
or the alternatives may have the potential to provide benefits across
multiple Corps program areas, such as flood risk management benefits in
addition to aquatic ecosystem restoration benefits. In these cases, a
study may result in a recommendation for a multi-purpose project. In a
post-authorization study, the Corps should not use the existing project
authorization as a screening tool to limit reasonable alternatives that
may otherwise provide a more complete solution. The Congress can amend
the existing project authorization based on a recommendation of the
Corps study. Also, a Corps study can recommend a community-based
solution that the Corps would not implement, where the solution is more
suited to another Federal agency or to a Tribal, state, or local
government.
The Corps conducts each of its project studies primarily to address
an identified, specific water resources problem or opportunity. The
watershed approach primarily ensures that the Corps will assess how the
proposed project and the alternatives would affect both the existing
and a full range of the potential future uses of water in the
watershed. However, in some cases, this kind of an analysis may also
lead to a more complete range of holistic alternatives, which would
achieve
[[Page 12082]]
multiple goals. A watershed approach is conducted at a systems level to
identify root causes and how they connect to problem symptoms. A
watershed approach also ensures that alternatives consider the effects,
including cumulative effects, and benefits conveyed throughout the
watershed to understand the full range of public effects. The Corps
would also assess any effects which may occur beyond the watershed,
where appropriate, such as existence value benefits.
There is no particular watershed scale dictated by the PR&G for use
in evaluation, and as such, the Corps would identify the most
appropriate delineation to address the identified, specific water
resources problem or opportunity. The study area would include the most
immediate part of the watershed, which is most likely to be affected by
the alternatives under consideration. The analysis may also need to
include other parts of the watershed, for example, to include the
effects on all of the people potentially affected by the ecosystem
service changes (e.g., by identifying relevant servicesheds). Where
appropriate, the analysis also may include areas beyond the watershed
that are connected to it by infrastructure (e.g., that transfers or
affects flows of water among hydrologically unconnected watersheds or
populations). The study area would potentially include these additional
areas, where the impacts are sufficient to warrant a broader review.
The scope and scale of watershed assessments can vary and the
geographic area under review should be large enough to ensure plans
address relationships among affected resources and activities pertinent
to realizing public benefits. The extent of evaluations across a
watershed should also reflect the nature of the relationships.
In addition, the Corps' assessments would evaluate the interaction
of a potential Federal, state, local, or other known investment with
other water resources projects and programs within a region or
watershed. In this manner, all effects and potential benefits would be
evaluated in an interconnected manner, as one Federal investment may
affect another Federal or non-Federal investment. Watershed conditions
would be assessed in the evaluation. Such information may include but
is not limited to: current trends in aquatic habitat loss or
conversion; cumulative impacts in the watershed; current and future
projected water resources utilization trends; species and other natural
resources conservation; and chronic problems such as flooding, among
others as appropriate. This analysis would include the effects on the
people, businesses, and environmental resources of the affected area,
as well as relevant economic and social characteristics of this area.
The watershed approach is not a mechanism to expand the scope of the
proposed Federal investment, but is rather primarily a way to document
and consider the context within which the Corps is proposing a targeted
Federal investment.
This type of approach may shift the Corps to think about water
resources problems more holistically, to look at them from all sides
and include all causes, effects and relationships, and then to identify
who is best suited to implement the alternative (which may be another
Federal agency, or a Tribal, state, or local government). The Army
solicits comment on example frameworks, tools, and methods for
implementing a watershed approach, such as whether the Basin-Scale
Opportunity Assessment led by the Department of Energy could be adapted
for use under the ASPs. However, the Corps would adapt to use the best
available science for such evaluations as they are developed in the
future.
Section 234.6(d) Collaboration.
Section 234.6(d)(1). This proposed paragraph outlines an increased
focus on collaboration for the Corps to improve decision making and
promote transparency. The Army recognizes that Tribal Nations,
regional, state, local, and non-governmental entities, as well as
communities and landowners are interested in the water resources
problems that affect them, have expertise, and share in the
responsibility of managing and protecting public water resources. The
planning process would seek to collaborate fully with a wide range of
affected entities and stakeholders, and the public in all stages of the
planning process. The Corps would initiate coordination with
appropriate Federal or state agencies administering Federal laws as
early in the process as practicable to fully integrate environmental
considerations into the planning process, identifying early on critical
information and requirements needed for the planning decision, and
maximizing opportunities to avoid and minimize impacts to the human
environment to the extent practicable. For example, consistent and
meaningful engagement between EPA and the Corps during early phases of
the water resources project plan may help enable a more efficient and
effective decision-making process, which meets all of the applicable
environmental regulatory requirements. This proposed level of
collaboration and engagement ensures that the Corps' planning process
integrates various considerations from a multitude of perspectives,
allowing for a more thoughtful and holistic consideration of potential
alternatives, and potential effects and benefits of a proposed water
resources investment. The proposed paragraph recognizes that such
enhanced collaboration can assist the Corps in improving the planning
process to better identify the problems, opportunities, constraints,
and goals and objectives of a planning study. More locally preferred
and locally appropriate project elements may also be identified from
such collaboration resulting in improved benefits to such communities.
Ensuring meaningful, regular, and robust engagement will result in more
opportunities for communities to directly contribute to projects that
may have positive benefits for their communities as well as contribute
to considerations of effects and costs to those communities and ways to
avoid, minimize or mitigate for those effects. These engagements should
account for the desired form and type of engagement from communities,
to ensure such engagements are culturally relevant and appropriate.
Another key element of the enhanced collaboration is transparency,
ensuring that all relevant Tribal Nations and interested parties are
kept informed about the Corps process and various factors under
consideration. The Army recognizes that enhanced collaboration and
engagement will take time, skill, and commitment on the part of the
Corps and project sponsors, as well as those who are engaging in the
Corps' process. However, integration of enhanced collaboration into the
planning process is necessary for informed and wise Federal investment
decisions. Leveraging information and resources from others can result
in improved efficiency and save resources.
Collaboration can also be used to fulfill some of the Guiding
Principles, such as a watershed approach, as working with others can
best identify and understand problems and opportunities in a systems
context. It is also useful to collaborate to identify other ongoing or
planned activities in the watershed for understanding both the current
and potential future conditions of a watershed. Environmental justice
can also best be achieved when applying a collaborative approach to
best understand community concerns. In addition, ecosystem services
related to healthy and resilient ecosystems are also best understood
using a collaborative approach.
The proposed paragraph also makes clear that enhanced collaboration
does
[[Page 12083]]
not obviate the need for Tribal consultation, where appropriate. In
addition, Tribal consultation does not obviate the need for the Corps
to ensure that enhanced collaboration with Tribal Nations occurs.
Consultation and enhanced collaboration are not the same thing, and in
certain circumstances Tribal engagements demonstrate a desire for and
result in a greater understanding of the Tribal Nations needs than what
may be achieved in consultation. Engagement beyond consultation is
necessary to improve overall relationships and communication with
Tribal Nations, and to identify areas for participation in and access
to Civil Works programs.
Section 234.6(d)(2) Although this proposed paragraph recognizes
that tools and levels of engagement will vary based on a variety of
factors, the section requires intentional design based on best
practices of engagement (e.g., the spectrum of engagement from the
International Association for Public Participation and modifications
from various U.S. government agencies including the Corps). Whereas
collaboration is standard in current Civil Works planning at the
scoping stage and after a plan has been tentatively selected, this
section explicitly urges collaboration throughout the planning process
including during alternatives evaluation and tradeoffs. In addition,
the Corps will ensure that it considers and incorporates the
information that it receives from Tribal Nations and external sources
into the problem definition, the forecast of future conditions, and the
alternatives analysis. See the environmental justice section of the
proposed rule and preamble for other considerations in engaging
communities with environmental justice concerns (see 234.6(c)(1)).
Another element of enhanced collaboration is in instances where a
water resources problem identified in community engagement is beyond
the Corps' traditional mission areas. In such instances, the Corps can
collaborate with Tribal Nations, Federal, state, and local agencies,
and non-governmental organizations or private entities, through a
formal or public participation process such as in scoping, to identify
alternative solutions to the problem, including solutions that may be
outside Corps mission areas but where communities may seek further
assistance elsewhere. The PR&G may result in alternatives that are
outside (in whole or in part) of the Corps mission areas or its core
capabilities, or are better suited to another Federal agency or a
Tribal, state, or local government. The benefits of enhanced Federal
collaboration can include the sharing of data to identify the
alternative solutions that maximize net public benefits or the
leveraging of resources outside of the Corps to implement these
solutions.
Enhanced collaboration also helps to ensure transparency, promotes
Tribal and public participation, and assists in developing community-
driven solutions to water resources problems. In general, collaboration
may include, but is not limited to: sharing of science and data,
including Indigenous Knowledge; sharing of analytical tools or
expertise; sharing of values and priorities; interdisciplinary or
inter-agency teams; peer review processes; and post-project reviews.
The Corps would ensure that the collaboration includes opportunities
for engaged participants to assess the efficacy of the collaboration,
identify areas of concern that could be redressed moving forward, note
areas of success to continue to build on for the effort at hand, and
discuss lessons learned to inform future efforts. It will also help
ensure that the right problem is being identified and the study focuses
on appropriate goals and objectives.
Section 234.6(e) Investigations and data collection. This proposed
section discusses that investigations and data collection should occur
early and on a recurring basis throughout the planning process. The
proposed section outlines areas for the study team to consider and
relevant data to collect in investigations. It recommends that the
Corps leverage existing information; and conduct new investigations and
data collection, where appropriate, when existing information is not
present.
Section 234.6(f) Identify purpose, problems, needs, and
opportunities. This proposed section sets out the requirements to
identify purpose, problems, needs and opportunities. The section also
sets expectations for early collaboration with Tribal Nations and
stakeholders (also see 234.6(d)) to ensure that the right problem is
being identified and the study focuses on appropriate goals and
objectives. The Corps would begin with a clear definition of the water
resources challenges, including a statement of the problems and/or
opportunities to be addressed. The causes of the problems should be
identified, as well as any constraints, and the relationship of the
problems to the missions, statutory authorities, and other requirements
of the Corps. Clearly defined problems, opportunities, and constraints
are key to enable the Corps to identify a potential Federal investment
for consideration. In general, this step corresponds to the
identification of the project's purpose and need under the NEPA;
however, the scoping process for a Corps study may be different than
what is required under NEPA scoping. Typically, more background
information is available when NEPA scoping is conducted. Corps study
teams may not have all of the information that is identified in this
proposed scoping section of the rule during the initial development of
the project management plan. For example, the formulation of planning
objectives and constraints to be used in the analysis of the Federal
investment cannot be developed until other actions have been conducted,
such as inventorying and forecasting, that are identified in the study
scope. The scoping process is an iterative process. The scope would
include actions to obtain stakeholder, partner, and public input;
however, that input may not be available early on in the study process.
The Corps would seek to align the study scoping for a project and NEPA
scoping to the extent practicable. A watershed-based or systems
approach should generally be applied when defining the scope of a water
resources challenge. To most fully integrate the PR&G and NEPA
processes at the earliest stages, the Corps would describe and request
public input on the PR&G analysis in the Notice of Intent to prepare an
EIS.
As implementation of NEPA and the implementation of the PR&G should
be fully integrated, the identification of problems, needs, and
opportunities applies to both applications and can be accomplished in
study scoping. The Corps would ensure that the planning goals and
objectives are consistent with the authorizing legislation for the
study. The Corps should not limit the consideration of alternatives to
those that fall within Corps missions, if the inclusion of other
alternatives may otherwise provide a more complete or community-based
solution and such additional consideration is within the Corps' study
authorization. Where possible, the Corps should strive to look
holistically at the water resources problem. The Army solicits comment
on how to address specific limitations on the scoping process, due to
factors such as the scope of the study authority, cost sharing
requirements, non-Federal interest support, and Corps mission areas and
core capabilities. For example, other Federal, state, local, or Tribal
programs or projects may align with the study's goals and objectives
and the consideration of these measures within an alternative may
produce additional, synergistic net benefits. The Army solicits comment
on whether there may
[[Page 12084]]
be terms and conditions under which additional consideration may
proceed that would enable the Corps to consider alternatives beyond
those that the non-Federal interest supports.
The Corps would also identify the purpose of the study, the role of
the Federal government, and the various perspectives of those
participating in the process. The purpose and scope of the study should
be broad enough to cover the full range of reasonable alternatives,
while avoiding an unwieldly number of alternatives. The various
perspectives from those participating in the process can ensure a more
robust and holistic view of the current conditions and potential
solutions to the key water resources challenges.
The Corps would identify the water resources problems or
opportunities in scoping, but would not use this process to exclude
reasonable alternatives. The Corps would use enhanced collaboration and
the Guiding Principles in developing the scope of the study. The Corps
would define the study area and describe stakeholder engagement
strategies. The Corps would ensure in doing so that it employs the
watershed approach, and considers enhanced collaboration, as well as
the Guiding Principles, such as environmental justice. The Corps also
may refine or reconsider the scope of the study during the study, based
on new information or at the request of any interested party, where
appropriate. The Corps would prepare a summary of the planning
objectives and constraints, including a summary of input received. The
constraints could be legal or environmental, for example. The summary
of input received should also provide responses, where appropriate.
The Corps would also include a discussion of the social and
cultural aspects of the affected area and its resources, including
Tribal resources, treaty rights, and matters related to environmental
justice. This can help identify potential areas of concern, needs which
should be addressed, and helps inform the current conditions as well as
the future conditions. There may be other important areas to be
identified in scoping that would be included, as appropriate, such as
specific areas of consideration for the study area and water resource
challenge under review that are not captured in this preamble.
Section 234.6(g) Inventory Existing Resources and Forecast Future
Conditions. To determine baselines, the Corps would identify the
existing conditions and the baseline levels of ecosystems services and,
to the extent practicable, identify current trends and variability in
key environmental and economic indicators and conditions such as
climate, population, urbanization, and land use. The current existing
conditions provide the baseline for forecasting both the future with-
and without-project conditions. This proposed section describes the
need to inventory existing information and resources and to forecast
future conditions. This step corresponds to the NEPA identification of
the affected environment. The inventory and forecast provide a basis
for comparison of the effects of alternative water resources
investments on objectives. The proposed section also describes the
without-project condition and the with-project condition including the
need to consider climate and other likely changes in establishing
scenarios to compare effects of alternatives. Such evaluation and
forecasting across the alternatives would confirm the problems, needs,
and opportunities that the study would address in the subsequent steps.
The inventory and forecast would provide information for understanding
existing conditions and establishing a baseline for forecasting with-
and without-project conditions. The inventory and forecast should
include other related Federal and non-Federal investments within the
region or watershed, which the Corps would consider to ensure
consistency of purpose, maximize effectiveness, reduce costs, or
identify other potential alternative solutions.
The existing and forecasted future conditions would include
descriptions of the economic, environmental, and social setting within
the study area. It would take into account future climate change, and
economic development and land use change scenarios. A watershed
approach should also be used in describing current and future
conditions. Those descriptions would discuss how affected resources are
interrelated, describing their functional relationships, as well as
their ability to produce or impact ecosystem services. In this manner,
the connections between the resources and services within the study
area and broader watershed will become apparent and allow the Corps to
better analyze how a change in targeted water resources may impact
those resources and services. The descriptions would also provide
details on the existing and future conditions with respect to economic
metrics, such as investment, markets, and productivity; environmental
metrics, such as water quality and quantity or air quality components;
and social metrics, such as income levels, race and ethnicity, and
health burdens.
The Corps would use peer-reviewed (where possible and appropriate)
and common projections of the factors listed above. In addition,
Indigenous Knowledge and local knowledge should be included in the
descriptions, following appropriate procedures for free, prior and
informed consent for use in the descriptions. The conditions would be
described as appropriate and applicable to the specific investment,
with consideration for the Guiding Principles of the PR&G. The Corps
would also ensure consistency in the approach applied and conditions
assessed across the existing and future condition inventories. The
level of detail provided in the inventories should be commensurate with
the rest of the analysis and level of scope and scale of the proposed
Federal investment. Not every analysis must include detailed surveys
and fieldwork and the Corps should rely on existing data, and
information, and leverage existing resources to the extent practicable.
In some circumstances, a conceptual model can be used to best explain
to the public and decision makers in plain language and visual
representation, how natural, social, and economic systems interact and
how ecosystems provide services to communities and the natural
environment. The inventory would also define the ecosystem services
that exist in the study area.
The forecast of future conditions is comparable to the NEPA
identification of future impacts associated with the proposed
alternatives. The Corps would predict and identify what the future
conditions of the study area may be across the various alternatives.
Such comparison would also be conducted with the No Action alternative.
Any key assumptions made for forecasting of future conditions would be
disclosed.
The ``without-project'' and ``with-project'' conditions refer to
the conditions that the Corps estimates are ``most likely'' to occur in
the future over the period of the analysis. Since the future is
inherently uncertain, the Corps study should identify and describe the
key known drivers of the uncertainties. In some cases, the Corps also
would use scenario analysis to evaluate the extent to which the
uncertainties may affect the investment decision. For example, for
climate change, the Corps uses scenario analysis because the science
relies on a range of values (i.e., levels of greenhouse gas emission
and their impacts) and it is difficult to determine which value is more
likely to occur than others within that range. The Corps
[[Page 12085]]
would implement additional scenario analyses in cases where a reliable
forecast of future conditions is not possible. The inventory of
existing resources and forecast of future conditions should also
include assumptions for scenarios and for extreme weather events to
evaluate sensitivity of alternatives to a range of conditions, such as
drought or hurricanes. The E.O. 14008 (86 FR 7619) directs agencies to
build resilience against the existing impacts of climate change as well
as those which will continue to intensify according to current
trajectories. The Corps would use the scenario analysis and discussions
on extreme weather events to inform how alternatives may perform under
future conditions with respect to climate resilience. There are also
uncertainties from other sources that would benefit from additional
scenario analyses.
As described in the collaboration section (234.6(d)), the Corps
should ensure other relevant Federal and non-Federal investments are
included in the conditions assessments. Reasonably foreseeable actions
by public and private entities should be included to understand how key
resources and services may change in the future and to be used to
better understand the most likely future condition in the absence of
the proposed Federal investment. As with any projections of future
conditions, there is an inherent degree of uncertainty; the Corps would
identify and characterize the degree of uncertainty for the projections
made. Such characterization should be quantitative, when feasible, and
qualitative when not and provide a commensurate level of detail to the
analysis. Any residual risk that is not proposed to be, or cannot be,
addressed or mitigated would be disclosed to aid in the decision-making
process. If the uncertainty regarding current conditions is sufficient
to affect the analysis, the Corps may develop multiple baselines. Where
the effects of climate variability and climate change are relevant to
the investment decision, the study should fully describe the key
sources of the uncertainty and the range of its possible effects over
time.
The proposed future ``without-project condition'' is what is
expected to occur, over the period of analysis, in the absence of a
Corps project or program. The Corps currently uses a 50-year timeframe
for the period of analysis (see ER 1105-2-100 \36\ section 2-4j).
Future land use changes would be incorporated. The future ``without-
project condition'' is the baseline for comparison of alternatives. The
proposed future ``with-project condition'' is what is expected to occur
in the future, over the period of analysis, with a specific Corps
proposed project or program in place. As described in discussion of
Floodplains in the preamble at 234.6(c)(2), the Corps uses the CISA
when assessing climate change conditions and climate resilience related
to flooding of all Civil Works studies, ensuring climate adaptation is
considered. Climate change would need to be considered in both the
future ``without-project'' and ``with-project'' conditions. The Corps
has a host of tools and guidance that it uses to implement the CISA, as
previously described in 234.6(c)(2). Projections of future conditions
would account for expected environmental, social, and economic changes,
including those that result from climate variability and climate
change, in particular for projects with a relatively long service or
operational lives, as these projects may be subject to additional
climate variability and change.
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\36\ <a href="https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf">https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf</a>, last accessed
January 31, 2024.
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The Corps would develop a summary of the process used to identify
the existing and future conditions for the administrative record. The
summary ensures that appropriate considerations were incorporated and
provides transparency in the process. The Corps would ensure the
summary includes discussion of Tribal, partner, stakeholder, and public
inputs. Identification of existing resources seeks to quantify relevant
resource conditions in the study area as they currently exist. The
forecasting of future conditions would do the same over the period of
analysis. The period of analysis does not reflect the expected service
or operational life of the investment. The Army solicits comment on
what the standard period of analysis should be when the Corps
implements the PR&G. For example, rather than a traditional 50-year
period of analysis, should the Corps use a longer or shorter period of
analysis of changes relative to the baseline and, if so, why? The Corps
recognizes the importance of consistency and comparability both in
evaluating alternatives and in comparing performance across a portfolio
of projects. However, the Corps could consider multiple periods of
analysis for different alternatives to not bias selection of one
alternative over another. Where relevant, the Corps also could describe
how the period of analysis may result in different assessments of
alternatives to ensure transparency and informed decision-making.
Section 234.6(h) Formulate Alternatives. The next proposed
paragraph of the Corps' ASPs establishes the primary function for plan
formulation as developing the full range of alternatives that will
address the water resources problem and sets the evaluation criteria of
acceptability, efficiency, effectiveness, and completeness. These
criteria carry over from the 1983 P&G. Investigations, data collection,
and analysis should be ongoing, and should leverage and incorporate
information from Tribal, state, local, non-governmental, scientific and
economic literature, and other relevant sources.
A range of potential plans must be investigated with a subset
retained for further analysis, including alternatives with only
nonstructural elements and the environmentally preferred alternative.
Nonstructural measures and nature-based solutions \37\ are important
considerations of the PR&G and should be integrated into alternatives
for water resources Federal investments wherever appropriate. As with
structural solutions, considerations should be made for technical
feasibility, land use, cost, past performance, and longevity, for
example. In addition, the proposed rule requires the Corps to include
the environmentally preferred alternative in the final array of
alternatives, which is consistent with the current Corps' planning
process as well as consistent with NEPA.
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\37\ See <a href="https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf</a> (last accessed on September 21,
2023) for more information on nature-based solutions.
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Alternatives analyzed shall seek to address the subject water
resources challenge, problem, or need identified in 234.6(f) based on
the most likely future conditions. Alternatives that do not address the
problem should not be carried forward. The alternatives should seek to
achieve the planning and Federal objectives and follow the Guiding
Principles. Alternatives should identify solutions that are feasible
and meet planning objectives. It is an unwise use of Federal
investments to continue to explore alternatives that do not meet these
goals. The range of alternatives provides a reasonable basis for
comparing the relative effectiveness and efficiency of the
alternatives. The alternatives must strive to achieve economic,
environmental, and social goals. In addition, as noted in 234.6(e), the
same period of analysis should be used in alternatives analysis. The
period
[[Page 12086]]
of analysis selected can bias selection of one option or another. A
shorter analysis period would benefit alternatives with less upfront
costs and more upfront benefits, as compared to an alternative with
more upfront costs but more long-term benefits and lower cost over
time. Thus, the period of analysis selected must be long enough to
account for costs and benefits including the principal significant
long-term effects. On the other hand, some project features may have a
very long expected lifetime. In these cases, it may not be productive
to cover the project's full lifespan in the analysis, e.g., if the
costs and benefits in the far distant future are very uncertain or
would not affect the Federal investment decision.
When an alternative is beyond the Corps missions (which are:
commercial navigation, flood and storm damage reduction, and aquatic
ecosystem restoration), such alternatives can be carried forward for
further analysis where they provide solutions to the identified
problem, meet the goals of the PR&G, and appropriate funding is
available or may be available (including from other agencies and
partners without Corps action). In such case, the alternative should
specifically identify the relevant parties with requisite
responsibility for any action beyond Corps missions, their authority
for that action, the interrelation between that action and the
recommended Corps project, and appropriate sequencing of
implementation. Any recommendations for authorization should clearly
delineate the federal water resources project(s) being recommended for
authorization and Corps implementation and any condition precedent for
construction, with specificity. The proposed rule provides that for
Corps investments, the Corps would be the designated lead for
completing the PR&G analysis. In many Corps studies, the non-Federal
interest pays a share of the cost. The Army solicits comment on whether
and when the Corps should consider alternatives beyond those that the
non-Federal interest supports, such as when an alternative may be
beyond Corps missions.
The rule provides that the Corps would continue to justify each
project purpose separately, and to size each of the project features,
based on an incremental analysis of the benefits and costs. In this
incremental formulation of the alternatives, the Corps would decide how
best to weigh the different kinds of benefits (rather than
automatically giving each of the benefit categories ``equal'' weight).
Similarly, the rule also provides that the Corps would continue to
justify each hydrologically separable element of a project separately,
based on an incremental analysis of the benefits and costs, and to
identify them in its recommendations as separable elements.
Section 234.6(h)(1). In this proposed paragraph, the screening of
alternatives in a systematic manner is discussed. An initial set of
alternatives would be refined as determinations are made that such
alternatives do not meet the purpose and need, are too costly, entail
unacceptable unavoidable impacts, or do not meet other factors. The
refinement would also consider the Federal objective and the Guiding
Principles. Alternatives that are eliminated should still be briefly
discussed in publicly available documents and the Corps would include
the reasons for their elimination. The remaining alternatives are
considered the reasonable range of alternatives to be carried through
the analysis and NEPA evaluation. They should be distinct enough to
warrant individual consideration and entail different potential
solutions to the water resources challenges. The alternatives must also
describe the avoidance, minimization, and compensatory mitigation
considerations for each identified alternative solution. Appropriate
mitigation of adverse effects is to be an integral part of each
alternative plan. The alternatives should describe not just the
economic, environmental, and social conditions and benefits but also
impacts. Alternatives should also describe any institutional barriers
that may be present to effectuate the solution, including statutory
requirements, implementation authority, regulation changes,
implementation policy, etc. Transparency and full consideration of
economic, environmental, and social effects, both quantifiable and non-
quantifiable, must be provided for each alternative. The Corps would
also describe the social, environmental, and economic impacts of not
investing, or underinvesting, in any Tribal or disadvantaged
communities, in particular under the future ``without-project''
condition and the ``no action'' alternative. Programmatic-level
procedures would generally be expected to have fewer alternatives than
project-level procedures, as they are generally of a lower level of
detail with fewer options for developing them.
In all cases, the alternatives analyzed under the PR&G would be
included in the NEPA document. As discussed previously (234.6(f)), the
Corps would work to integrate the PR&G analysis with NEPA to the extent
practicable. Where differences exist, the Corps would describe such
differences in the documentation. In addition, where a Corps
alternative has discrete measures or separable elements, each should be
evaluated as discrete units. Plan formulation needs to describe the
features and capabilities of any discrete measures as well as the full
alternatives.
Section 234.7 Evaluation Framework.
Section 234.7(a) The proposed ASPs are intended to provide a common
framework and requirements for the Corps to use in evaluating potential
alternatives for Federal investments. The Corps would use the Guiding
Principles and evaluate the contributions to the Federal Objective to
inform the process. While the basic planning framework for the PR&G is
similar to the P&G framework, this section includes many areas of new
or additional focus specific to the PR&G planning framework. To the
extent applicable, the Corps may use existing frameworks and practices
(e.g., aspects of ER 1105-2-100) \38\ as long as they are relevant and
acceptable under the PR&G framework.
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\38\ <a href="https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf">https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf</a>, Planning
Guidance Notebook, last accessed January 31, 2024.
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The Corps would quantify/monetize effects to the extent feasible
and appropriate, and describe effects that cannot be quantified or
monetized. The Corps would focus evaluation on economic, environmental
and social effects that could impact the decision-making to avoid
unnecessary time and costs. The Corps would include all significantly
affected economic, environmental, and social effects, and ensure the
evaluation framework would not leave them out if they cannot be
monetized or quantified. The Corps would generally follow Circulars A-4
and A-94 in this approach.
Section 234.7(b) Economic, environmental, and social effects. The
Corps would identify and evaluate the economic, environmental, and
social effects across the alternatives. In this evaluation, the Corps
would focus in each study on the key data that will affect its
estimates of the benefits and costs and are most pertinent to the
decision at hand.
The Corps proposes to consider adoption of any finalized OMB
guidance on ecosystem services (proposed at 88 FR 50912) \39\ for any
final rule issued for
[[Page 12087]]
the Corps' ASPs to evaluate the social and economic outcomes resulting
from environmental changes. The Corps would also employ other methods
to evaluate the direct economic and social effects as well as
traditional benefit-cost analysis (see Circulars A-4 and A-94).
Ecosystems provide services to people. Ecosystem goods and services are
those aspects provided by nature that benefit humans. A distinction is
sometimes made between ecosystem goods (tangible commodities produced
by nature, e.g., timber production) and ecosystem services (less
tangible benefits of well-functioning natural systems, e.g., wetland
water quality maintenance), but the phrase ecosystem services often
refers collectively to all of these benefits. Federal investment
impacts on the environment or ecosystems that affect people may be
understood in terms of changes in service flows. A complete accounting
identifies, at a minimum, impacted services and the projected trend of
each service flow. This framework is well suited for analyzing many
values associated with the natural resource, as it starts from the
assumption that all relevant ecosystem services should be evaluated.
The ASPs, consistent with OMB guidance, call for monetization where
possible, quantification where not possible, or description of effects
if neither is possible, of all ecosystem services that have economic,
social or environmental impacts that will affect decision making.
Qualitative information used when it is not practicable to provide
quantified or monetized information would be given similar
consideration in evaluation.
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\39\ Request for Comments on Proposed Guidance for Assessing
Changes in Environmental and Ecosystem Services in Benefit-Cost
Analysis. <a href="https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf">https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf</a>, last accessed on January 31, 2024.
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The Corps' PR&G analysis would display information on environmental
and social effects in addition to economic effects in order to provide
decision-makers with additional information as they select among
alternative actions. Early engagement with communities that could be
affected by a project would be helpful to obtain information on how
various actions may improve or degrade social benefits. Environmental
changes that result in changes in social benefits or changes in
ecosystem services may include changes in social interaction and
community; quality of life; safety, mental and physical health, family
and individual well-being; improvements in attitudes, beliefs and
values (includes culture and religion); and more. The Corps would
ensure that these benefits are assigned to one category (environmental,
social, or economic) to ensure that multiple benefits that may overlap
are only counted once.
Monetization should follow sound economic principles and practices
(See OMB Circulars A-94 \40\ and A-4 \41\ for examples of currently
accepted monetization practices). Discounting is to be used to convert
future monetary values to present or annualized values, consistent with
the statutory requirements for the agency and relevant agency or
Administration guidance (e.g., OMB Circulars A-94 and A-4).
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\40\ <a href="https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/a94/a094.pdf">https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/a94/a094.pdf</a>, last accessed January 31, 2024.
\41\ <a href="https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf</a>, last accessed January 31, 2024.
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Ecosystem services of potential interest in water resource
evaluations could include, but are not limited to: water quality
maintenance for drinking, health, recreation, energy production,
transportation or industrial uses; flood risk management to reduce the
risk of loss of life and the risk of damage to property and
infrastructure; water supply or drought risk reduction for drinking,
recreation, real estate, energy production, agriculture, transportation
or industrial uses; aquatic and riparian wildlife and places for
recreation or culturally valued experiences; wild populations, places
or features existence; greenhouse gas effects on various services;
productivity for food, timber, fish, crops and other products; and
nature for aesthetics in viewsheds.
In its flood and coastal storm risk management project studies, the
Corps may include an additional analysis of the benefits using
distributional weights to inform investment decisions as well as allow
for the weighting of costs, where appropriate. This analysis could
provide a more equitable way to measure the welfare impacts of these
projects on people and their communities, by reducing the extent to
which the average value of the property that is at risk affects the
estimated project benefits.
The Army notes that one of the Guiding Principles of the PR&G is
healthy and resilient ecosystems. NEPA analyses evaluate environmental
changes and will provide important information on environmental effects
of alternatives. NEPA analyses may also include or provide inputs for
effects analyses. The Corps analysis would account for relevant effects
of alternatives on environmental changes that impact people, including
analysis beyond what may be included in NEPA analysis. In addition, the
Corps analysis would include its estimates of the costs and benefits in
accounting for overall net benefits. This framework supports the
identification of alternatives that maximize net public benefits.
When monetization and quantification are not possible, descriptions
that merely list and/or laud benefits are less useful to decision-
makers than descriptions that allow meaningful differentiation of
effects across alternatives. For quantified and non-quantified effects,
professional judgment, bolstered by evidence where available, is
expected to be exercised in determining how important the benefits or
costs may be in the context of the overall analysis. If the quantified
or non-quantified benefits and costs are likely to be important,
``threshold'' or ``break-even'' analyses are approaches that may be
useful to evaluate their significance, as well as ``screening'' or
``order-of-magnitude'' analyses. Whatever analytical technique is used,
reports should indicate, where possible, which non-monetized described
changes are most important and why.
The proposed paragraph describes that ecosystem services to be
considered include market and non-market commodities, in addition to
the services that provide use and non-use values. As there are various
methodologies appropriate for identifying and measuring changes, the
Corps would use the most appropriate metrics and methods to evaluate
the alternatives, commensurate with the scale, scope, and complexity of
the water resources investment decision.\42\
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\42\ <a href="https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf">https://www.govinfo.gov/content/pkg/FR-2023-08-02/pdf/2023-16272.pdf</a>, last accessed on January 31, 2024, provides additional
information and guidance on this topic and the Corps proposes to
consult that document upon finalization.
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In some cases, monetizing ecosystem services may be as simple as
adding an additional parameter to other equations or calculations. For
example, an agency may already be using a flood risk model to estimate
property damages, but that model may not capture the way that natural
vegetation affects flood risk. Assessments should monetize effects when
possible.
When assessing economic, environmental, and social effects, the
Corps will first look for existing data that may be relevant to the
question at hand, including market and non-market data. The Corps will
also consider Indigenous Knowledge. Assessments should monetize effects
when possible. Market data on production and sale of such goods is
readily available, for example through the U.S. Department of
Agriculture. When monetization is not feasible, the Corps will quantify
where possible and describe service changes, when it is not.
Quantification does not have to be numerical; it can also be
[[Page 12088]]
categorical as long as the indicators are clearly defined, capture the
intended attribute as precisely as possible, free of observer bias
(i.e., the same regardless of who estimates it), repeatable over time,
and sensitive to changing conditions. Qualitative, quantitative and
monetized information will be given full consideration in decisions.
Where qualitative descriptions and analysis are used, they would be of
sufficient detail to enable the decision-maker to make informed
decisions. Such qualitative descriptions would be considered with
quantitative information.
For a proper accounting of changes in ecosystem service value, it
is important to fully articulate the processes and functions that
relate ecosystem structure and processes to the benefits directly
enjoyed by humans. The evaluation of benefits should then focus on the
final endpoints of this relationship that might be produced by one or
more intermediate ecosystem services and supported by other ecological
processes. Focusing on these final endpoints will help avoid double
counting. Changes over time as well as any uncertainty in assessing
impacts of an action on ecosystem service production would be
described.
Many ecosystem services provide benefits to people not located
where the service is produced. For example, while those who live just
downstream from a wetland or regularly view scenic landscapes in a
known park may be well-understood as beneficiaries, others who live
farther away may be harder to identify. Services that provide non-use
values (e.g., existence values) might provide benefits to individuals
across the U.S., with no clear relationship between distance to the
resource and value. The Corps would identify those populations who may
be impacted by a change in the resource to the extent feasible. The
results of the analysis would clearly define these groups and describe
how the groups were identified. The Corps would also note whether
subgroups within a population may be affected differently by a change,
such as on the basis of geographic location, income levels, etc.
The Corps' analysis would describe when benefits are likely to be
realized, and when costs are likely to be incurred. To enable
comparison of benefits and costs occurring at different times,
appropriate discounting methods would be used. When benefits are not
described monetarily, a discussion of the impact of waiting for future
benefits would be included.
The Corps uses ecosystem services now to evaluate the benefits and
costs of its proposed water resources development projects, to assess
resource-related losses and in determining restoration to compensate
for resource-related losses, to improve resource program planning and
management, and in application of modeling tools. This proposed rule
preamble is not intended to provide a ``how to guide'' on ecosystem
services or to provide comprehensive or specific instructions on how to
implement the analysis but rather to provide general concepts. As
stated earlier, the Corps would consider and seek to implement any
forthcoming final ecosystem services guidance from OMB (88 FR 50912).
The Army solicits comment on any specific tools and methodologies
that commenters may wish to recommend for quantifying or monetizing
economic, environmental, and social effects.
Section 234.7(c) Best available actionable science and commensurate
level of detail. To support the evaluation of alternatives, the
analysis should use the best available actionable science, Indigenous
Knowledge, data, techniques, procedures, models, and tools across the
wide variety of pertinent subjects. As stated in other sections of this
preamble, the effects of the alternatives should be monetized where
feasible. Across the alternatives for any given proposed water
resources investment, consistent methodology should be applied and
established tools can also be routinely used to improve consistency
across decisions. However, the Corps would adapt to new science,
knowledge, data, and tools as they are developed and proven. This helps
ensure the Corps does not simply react to constantly changing up-to-
date science. By relying on actionable science rather than latest
available, the Corps avoids requiring the adoption of new procedures
only to remove them again shortly thereafter if differing scientific
views emerge. Similar to other areas within the proposed ASPs, the
level of detail, scope, and complexity of analyses should be
commensurate with the scope of complexity of the decision. By scaling
the level of detail and collection of data to the relevant decision for
investment, unnecessary and excessive cost and expenditure of resources
may be avoided. For example, for a smaller study that qualifies for
scaled analysis under this proposed rule in Table 1, such as a study
under the Corps' Tribal Partnership Program or the Continuing
Authorities Program, the Corps would generally use the best available
actionable data and information using existing sources to the extent
practicable. Rather than expending a large investment to gain a small
level of refinement to existing data, the Corps may make judgments as
to the range of acceptable information to make informed decisions. The
level of detail and granularity of the data would generally be
commensurate with the scale, scope, and complexity of the water
resources investment decision. In addition, the most relevant and
appropriate science for the particular investment would be used. This
would result in the information best suited to inform a decision
regarding a subject investment. Refer to 234.6(g) regarding describing
future conditions and addressing the inherent uncertainty.
Section 234.7(d) Risk and uncertainty. To improve decision-making,
the ASPs require that risks and uncertainty be identified, described,
considered, and quantified if possible. This section calls explicitly
for consideration of the costs and benefits of reducing risks and
uncertainties. The Corps would align its disclosure, consideration, and
assessment of risk and uncertainty with Circulars A-4 and A-94 to the
extent practicable. A useful definition of ``risk'' for planning
purposes is the likelihood of a specific magnitude of a harmful outcome
occurring in the future. ``Uncertainty'' is used to express doubt or
lack of knowledge about a positive (beneficial) or negative (harmful)
outcome. Risk and uncertainty may be expressed either qualitatively or
quantitatively. Some elements of uncertainty are described at section
234.6(g) regarding future conditions. The risks and uncertainties need
to be disclosed for transparency and in plain language and made
relevant to the comparison of alternatives. When available, such risks
and uncertainties should be contextualized in a format more readily
understandable by the public. The Corps would also work to identify
whether improvements to existing data or models may lessen risks or
uncertainties. In some instances, reducing risks and uncertainty may
result in increased costs and the advantages of doing so in informing
the decision-making should be weighed against those additional costs.
When analyzing potential Federal water resource investments, areas of
risk and uncertainty would be identified, described, quantified where
possible, and considered as part of the decision. The first step to
evaluate risk and uncertainty would be to identify the nature of the
harmful outcomes and possible benefits. The second step would be to
identify the likelihood of each harmful or beneficial outcome, either
qualitatively or quantitatively. The third step would be to identify a
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specific magnitude or range of magnitudes of each outcome and interpret
the significance of each.
The Corps solicits comment on risk informed frameworks that can
supplement or improve its current risk informed planning processes (see
Planning Manual Part II: Risk-Informed Planning).\43\ One approach that
shows promise domestically (e.g., California Dept of Water Resources)
and internationally \44\ is Climate Risk Informed Decision Analysis
(CRIDA). CRIDA concepts for scenario planning use bottom-up,
vulnerability-driven approaches including stress tests and triggers to
provide a framework to consider the full range of future risks (e.g.,
climate, population, land-use change) that matter to communities and
decisionmakers and help develop robust long-term decisions for large-
scale, multi-generational water resources investments. By collaborating
with stakeholders to identify thresholds for system failure, CRIDA
concepts can help identify and communicate risks and ensure that water
resource solutions meet the needs of communities in the short and long
term.
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\43\ <a href="https://planning.erdc.dren.mil/toolbox/library/Guidance/PlanningManualPartII_IWR2017R03.pdf">https://planning.erdc.dren.mil/toolbox/library/Guidance/PlanningManualPartII_IWR2017R03.pdf</a>, last accessed January 31, 2024.
\44\ <a href="https://en.unesco.org/crida">https://en.unesco.org/crida</a>, last accessed January 31,
2024.
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Section 234.7(e) Adaptive management. Adaptive management is
defined under the proposed rule at 234.2(b). As cited in the PR&G,
adaptive management is highlighted as a tool in the proposed rule to
help reduce or manage within uncertainties. The proposed rule calls for
adaptive management measures to be clearly identified and evaluated as
part of the alternatives. It should be considered throughout the
process and should be employed as soon as triggers are identified which
necessitate such measures. Post-construction adaptive management to
address unforeseen conditions or impacts of the project should also be
included in Corps recommendations for project authorization.
Section 234.7(f) and (g) Climate change and Water availability,
water use, and resilience. These proposed paragraphs require
consideration of climate change, water availability, water use, and
drought and flood resilience in all aspects of the planning process.
This will involve the use of best available actionable science and the
leveraging of local information on future climate change, including the
associated uncertainty and likely impacts. This approach is consistent
with the ASA(CW) Climate Preparedness and Resilience Policy Statement
and helps to ensure that the Corps does not have to react constantly to
every new scientific report and update. By relying on actionable
science rather than the latest available, the Corps avoids requiring
the adoption of new procedures only to remove or modify them again
shortly thereafter as scientific views emerge and evolve. See preamble
section 234.6(c)(2) on Floodplains for further discussion on how the
Corps considers climate change in the planning process. The discussion
should include the interrelated nature of flood-related climate change,
climate, drought, water, and ecosystem reliability, availability, and
resilience. The evaluation should consider how these areas interrelate
and how they would affect the net economic, environmental, and social
benefits of the proposed water resources investment. Effects from
climate change, including impacts on water availability, for example,
have been noted as an environmental justice issue. Climate change,
water availability, water use, and resilience also impact environmental
factors, such as wetlands and river systems and the animal and plant
species that they support. The evaluation should ensure these factors
are considered for the current and future conditions assessment to
identify water resource needs now and in the future across the
alternatives, and how those alternatives may result in added
resilience, when applicable to the project purpose.
Resilience should be considered under both the drought and flooding
scenarios. The consideration of multiple uses and competing demands on
water resources shall be taken into account when designing solutions to
water resources problems. Water availability, water use, and resilience
will be particularly important for projects that serve multiple
purposes.
Section 234.7(h) Nonstructural and nature-based alternatives. This
proposed paragraph further describes requirements to develop
alternatives that use nonstructural measures to address the water
resources problem. Nonstructural approaches are defined at section
234.2(l) of the proposed rule text. The Corps led a large, diverse
collaboration that developed and published (2021) the International
Guidelines on Natural and Nature-Based Features for Flood Risk
Management.\45\ In addition, a Report on nature-based solutions was
recently issued to assist Federal agencies in moving ahead on
implementing nature-based solutions to solve water resources
challenges, where appropriate, titled ``Opportunities to Accelerate
Nature-based Solutions: A Roadmap for Climate Progress, Thriving
Nature, Equity, & Prosperity.'' \46\ The proposed paragraph requires
the consideration of natural systems, ecosystem process and nature-
based approaches throughout alternatives development where they are
feasible and consistent with the study purpose. A full nonstructural
alternative and a full nature-based solutions alternative would also be
included in the final array of alternatives. In some cases, these may
be one and the same.
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\45\ <a href="https://ewn.erdc.dren.mil/?page_id=4351">https://ewn.erdc.dren.mil/?page_id=4351</a>, last accessed
January 31, 2024.
\46\ <a href="https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf</a>, last accessed January 31, 2024.
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Section 234.7(i) Tribal treaty rights. This proposed paragraph
provides that any alternatives for water resources investments must
protect Tribal treaty rights. Each treaty is unique and must be
analyzed to ensure any possible impacts, as well as benefits, to treaty
rights are fully understood and accounted for in the alternative
evaluations. The Corps would ensure consistency with the ``Memorandum
of Understanding Regarding Interagency Coordination and Collaboration
for the Protection of Tribal Treaty Rights and Reserved Rights'' \47\
during the evaluation framework process. The Corps commits to enhancing
interagency coordination and collaboration to protect Tribal treaty and
reserved rights and to fully implement Federal government treaty
obligations. If Tribal treaty rights preclude selection of an otherwise
viable alternative, the Corps would disclose as such. The Corps also
commits to following the ``Best-Practices for Identifying and
Protecting Tribal Treaty Rights, Reserved Rights, and Other Similar
Rights in Federal Regulatory Actions and Federal Decision-Making''.\48\
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\47\ <a href="https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf">https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf</a>, last
accessed January 31, 2024.
\48\ <a href="https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf">https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf</a>, last accessed January 31, 2024.
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Section 234.7(j) and (k) State water law and International
obligations. These proposed paragraphs provide that the alternatives
for Federal investments must ensure compliance with State water laws to
the extent they do not conflict with Federal laws and regulations as
well as treaty and other international obligations, and if any
constraints within that compliance require an otherwise viable
alternative
[[Page 12090]]
to not be carried forward then the Corps would disclose as such.
Section 234.7(l) Timing. This proposed paragraph provides in the
regulation what is also discussed in section 234.6(g) regarding the
period of analysis for review of alternatives. The time period selected
would be documented with appropriate supporting information. The same
timeframe would be used across all alternative evaluations. The Corps
currently uses a 50-year timeframe for the period of analysis (see ER
1105-2-100 \49\ section 2-4j). Under the proposed regulation, a better
approach may be for the Corps to consider a period of analysis
sufficient to capture all important effects of each alternative. The
Army solicits comment on whether there should be an upper limit
established for the period of analysis. If an upper limit is
established, the Army solicits comment on whether the Corps' current
timeframe is the appropriate period of analysis for implementing the
Corps' ASPs. Alternatively, should the timeframe be longer given that
some benefits could accrue over timescales beyond 50 years. In
addition, comment is sought on whether the period of analysis should be
variable based on the Corps' mission and particular purpose and need of
the proposed investment. The Corps recognizes the importance of
consistency and comparability in evaluating alternatives and projects.
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\49\ <a href="https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf">https://www.publications.usace.army.mil/portals/76/publications/engineerregulations/er_1105-2-100.pdf</a>, last accessed
January 31, 2024.
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234.8 Final Array of Alternatives.
This proposed paragraph of the ASPs outlines the final array of
alternatives to address the problem that would be identified and
subject to in-depth analysis and consideration. The proposed rule
requires the Corps to include six types of alternatives in the final
array: a no action or without-project condition alternative, a fully
nonstructural alternative, a fully nature-based alternative, an
environmentally preferred alternative, an alternative that maximizes
net public benefits, and a locally-preferred alternative. A single
alternative might satisfy more than one category (e.g., a nature-based
alternative that is also the net benefit maximizing alternative and has
broad support from local interests), and there may be cases where there
are two alternatives in a category that need to be considered.
The no action alternative describes the conditions where no Federal
investment is made by the Corps in a water resources development
project. The fully nonstructural alternative is comprised only of
nonstructural approaches. This alternative must be considered feasible
to be carried forward in the final array. There may be circumstances
where a solely nonstructural approach alternative or fully nature-based
alternative is not feasible due to technology or legal limitations, for
example. The Corps would also consider nature-based solutions and non-
structural approaches as components in the other alternatives. The
environmentally preferred alternative generally provides the solution
that maximizes environmental benefits. It causes the least damage to
the biological and physical environment and best protects, preserves,
and enhances historical, cultural, and natural resources. The
alternative that seeks to maximize net public benefits is also required
to be included in the final array. This alternative is the plan that
the Corps estimates would achieve the greatest net public benefits,
based on its estimates of the costs and of the overall economic,
environmental, and social benefits to society. The last alternative to
be included is the alternative preferred by the non-federal interest,
called the locally preferred alternative. All alternatives in the final
array must be developed using a comparable level of rigor and detail.
The non-federal interest is defined in the preamble at section 234.2(g)
and as described, is the local interest envisioned by the PR&G for
purposes of the Corps' implementation. The same alternative may be
identified as one or more of these plans (e.g., the fully nonstructural
alternative could also be the fully nature-based alternative, or the
locally preferred alternative may be the same as the alternative that
maximizes net public benefits). In addition, nonstructural measures and
nature-based solutions should be considered as components of the other
alternatives in the final array, essentially providing an integrated or
``hybrid'' of gray (hard) infrastructure with these other measures. The
section also requires inclusion of any needed mitigation for
unavoidable adverse effects in the alternative and analysis. The
section also provi
[…truncated; see source link]Indexed from Federal Register on February 15, 2024.
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