Rule2024-29652
Corps of Engineers Agency Specific Procedures To Implement the Principles, Requirements, and Guidelines for Federal Investments in Water Resources
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 19, 2024
Effective
January 17, 2025
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
This rule establishes Agency Specific Procedures (ASPs) for the U.S. Army Corps of Engineers (Corps) to implement the Principles, Requirements, and Guidelines (PR&G) for Federal water resources investments. It provides a framework to govern how the Corps would evaluate proposed water resources investments, subject to the PR&G. The rule incorporates recommendations from interested parties. The Army is issuing this rule in response to congressional direction in the Water Resources Development Act of 2020.
Full Text
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[Federal Register Volume 89, Number 244 (Thursday, December 19, 2024)]
[Rules and Regulations]
[Pages 103992-104029]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29652]
[[Page 103991]]
Vol. 89
Thursday,
No. 244
December 19, 2024
Part III
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; Final Rule
Federal Register / Vol. 89 , No. 244 / Thursday, December 19, 2024 /
Rules and Regulations
[[Page 103992]]
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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, Army, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: This rule establishes Agency Specific Procedures (ASPs) for
the U.S. Army Corps of Engineers (Corps) to implement the Principles,
Requirements, and Guidelines (PR&G) for Federal water resources
investments. It provides a framework to govern how the Corps would
evaluate proposed water resources investments, subject to the PR&G. The
rule incorporates recommendations from interested parties. The Army is
issuing this rule in response to congressional direction in the Water
Resources Development Act of 2020.
DATES: This rule is effective on January 17, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. Milton Boyd, Acting Director for
Policy and Legislation, Office of the Assistant Secretary of the Army
(Civil Works), 108 Army Pentagon, Washington, DC 20310-0108, at (202)
761-8546 or <a href="/cdn-cgi/l/email-protection#91fcf8fde5feffbfe6bff3fee8f5bff2f8e7d1f0e3fce8bffcf8fd"><span class="__cf_email__" data-cfemail="64090d08100b0a4a134a060b1d004a070d12240516091d4a090d08">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
A. Executive Summary
B. Background
C. Response to Public Comments
D. Section-by-Section Discussion of the Final Rule and Revisions
from the Proposed Rule
E. Expected Benefits and Costs
F. Procedural Requirements
A. Executive Summary
The Principles and Requirements for Federal Investments in Water
Resources (P&R) \1\ were established pursuant to the Water Resources
Planning Act of 1965 (Pub. L. 89-8), as amended (42 U.S.C.1962a-2), and
consistent with Section 2031 of the Water Resources Development Act of
2007 (WRDA 2007) (Pub. L. 110-114, 42 U.S.C. 1962-3). In WRDA 2007,
Congress instructed the Secretary of the Army to revise the 1983
Economic and Environmental Principles and Guidelines for Water and
Related Land Resources Implementation Studies (P&G) \2\ for the U.S.
Army Corps of Engineers (Corps). Section 110 of the Water Resources
Development Act of 2020 (WRDA 2020) (Division AA of Pub. L. 116-260)
directed the Army to issue its final Agency Specific Procedures (ASPs)
necessary for the Corps' Civil Works program to implement the P&R and
Interagency Guidelines \3\ (henceforth ``Principles, Requirements and
Guidelines,'' or PR&G).
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\1\ See <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 May 21, 2024.
\2\ See <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 May 21, 2024.
\3\ See <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 May
21, 2024.
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The P&R were released in March 2013 and set the overarching policy
direction. The Interagency Guidelines were finalized in 2014 and
provide a common framework for Federal agencies to implement the P&R.
The PR&G provide a framework to guide how Federal water resources
agencies develop proposed investments in water resources. The PR&G
replace the 1983 P&G. Each water resources agency is to develop ASPs to
implement the PR&G.
This rule establishes the Corps' ASPs to implement the PR&G. The
ASPs provide a framework for the Corps to use in the planning process
for projects, plans, and programs. The ASPs focus project development
on maximizing net public benefits. Public benefits are documented
across economic, environmental, and social categories. The evaluation
of alternatives will be consistent with the principle that
environmental, economic, and social impacts are interrelated. The
analysis of benefits may be quantified using monetary or non-monetary
metrics. Qualitative descriptions of benefits may also be developed.
The environmental, economic, and social benefits and costs are to be
fully considered in formulating and evaluating alternative plans and
making recommendations to decision-makers.
B. Background
The 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
Civil Works program. This document refers both to the Army (for policy
direction) and the Corps (for implementation responsibility).
Section 2031 of WRDA 2007 (Pub. L. 110-114, 42 U.S.C. 1962-3)
established a national water resources planning policy. The national
water resources planning policy states that all water resources
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 (79 FR 77460). The PR&G were
developed 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
resources projects, programs activities, and related actions, consist
of the following three components: (1) the P&R, 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,
providing more detailed guidance for affected Federal agencies,
[[Page 103993]]
including the Departments of the Interior, Agriculture, and Commerce,
the Environmental Protection Agency, the Corps, the Federal Emergency
Management Agency, and the Tennessee Valley Authority, for determining
the applicability of the P&R; and (3) the ASPs, outlining agency-
specific procedures for incorporating the P&R into agency missions and
programs.
The P&R describe the Federal Objective as reflecting national
priorities, encouraging economic development, and protecting the
environment. The Federal Objective is rooted in the national water
resources planning policy established in Section 2031 of WRDA 2007. Two
key concepts are ``Federal investment'' and ``public benefit.'' The
PR&G focus on Federal water resources investments, including projects,
plans, and programs that either directly or indirectly affect water
quality or water quantity, including ecosystem restoration or related
land management activities. The level of a given Federal investment
will be determined on a present value basis over the life of the
Federal investment, and the net public benefits of an investment will
be assessed and used to guide Federal decision-making. Federal water
resources investments should strive to achieve water resources goals
and seek to maximize net public benefits, consistent with the PR&G.
The PR&G modernize the Federal Government's approach to water
resources development. They take a more comprehensive approach to water
projects that seeks to maximize public benefits relative to the cost of
an investment in water resources. Under the PR&G, decision-making is
intended to be more transparent and better informed through risk
recognition. Recommendations will be aimed at meeting the broader
Federal Objective of reflecting national priorities, encouraging
economic development, and protecting the environment by seeking to
maximize sustainable economic development, seeking to avoid the unwise
use of floodplains, and protecting and restoring the functions of
natural systems and mitigating unavoidable damage to natural systems.
The ASPs will serve as the framework for how the Corps will implement
the PR&G.
The Army pursued rulemaking to provide codified direction for the
Corps project planning process, which will achieve the purposes of the
PR&G with input from robust and meaningful Tribal and public
engagement. The Corps also reviewed and considered the approved ASPs of
other Federal agencies in developing this final rule.
This final rule follows the general framework laid out in the PR&G.
This rule formalizes the planning framework of the Corps under the PR&G
in a transparent manner.
The final ASPs will apply to plans, projects, or programs that are
initiated after this final rule takes effect. The Corps will 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 the final rule effective date.
C. Response to Public Comments
Initially, the Army sought input from Tribes, Federal, and State
agencies, stakeholders, and other interested parties through the
issuance of the 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).
Subsequently, on February 15, 2024, the Assistant Secretary of the
Army for Civil Works published a proposed rule to establish the ``Corps
of Engineers Agency Specific Procedures To Implement the Principles,
Requirements, and Guidelines for Federal Investments in Water
Resources'' (89 FR 12066). A 60-day public comment period closed on
April 15, 2024.
On February 16, 2024, the Assistant Secretary of the Army for Civil
Works sent letters to Tribal Nations, Alaska Native Corporations, and
Native Hawaiian Organizations and Communities requesting consultation
and seeking comments on the proposed rule. Tribal Nations, Alaska
Native Corporations, and Native Hawaiian Organizations could request
consultation through April 26, 2024.
During the comment period, three virtual public meetings were held
to accept oral comments on the proposed rule. In addition, written
comments were submitted by almost 250 organizations and individuals.
Comments were provided by States, agencies, local governments,
utilities, business interest groups, environmental organizations,
academic institutions, farmers, businesses, and private citizens.
Comments ranged from fully supportive of the proposed rule to
viewpoints that were skeptical or not supportive. Many groups and
individuals offered support along with recommendations to change parts
of the proposed rule.
Virtual public meetings were hosted by the Office of the Assistant
Secretary of the Army for Civil Works on February 26, 2024, and March
12, 2024, and a virtual Tribal meeting was held on March 19, 2024. In
total, 133 people attended the virtual meetings. The Office of the
Assistant Secretary of the Army for Civil Works led the meetings and
presented slides and moderated the public comment sessions. Verbal
comments were accepted along with comments in the chat messages. Some
of the meeting participants asked questions, and clarifying responses
were provided to assist the public in understanding the proposed rule.
All presentation materials, transcripts, and video recordings from the
virtual meetings are available on the Army's website (<a href="https://www.army.mil/article/273436/procedures_to_evaluate_water_resource_investments">https://www.army.mil/article/273436/procedures_to_evaluate_water_resource_investments</a>).
The Army received 13,292 pages of comments during the comment
period. There were public comment letter submissions with multiple
cosigners, including a single letter with over 100 signing
organizations. The Army also received thousands of duplicated form
letters within a single submission. Not counting the duplicated
comments, the Army received over 500 unique comments.
One Tribal Nation elected to conduct Government-to-Government
consultation on the proposed rule that resulted in revisions to the
rule regarding Tribal treaty and reserved rights and consultation
requirements.
The supporting materials used to prepare this rule, and the
comments and materials received on the proposed rule are available on
the Federal e-rulemaking portal (<a href="https://www.regulations.gov">https://www.regulations.gov</a>) (search
Docket ID: COE-2023-0005).
The Office of the Assistant Secretary of the Army for Civil Works
reviewed all comments and made changes, as appropriate, to the final
rule based on those comments and an internal review. Those changes are
described in detail in the ``Section-by-Section Discussion of the Final
Rule and Revisions from the Proposed Rule'' in this preamble.
Most comments received were supportive of the ASPs but included
specific recommendations and/or line-by-line edits. A significant
portion of entries requested additional guidance on how to
appropriately value non-monetized benefits when comparing economic,
environmental, and social parameters and determining the net public
benefits. Several commenters were concerned that the rule incorporates
too much subjectivity into the planning and decision-making process.
Others encouraged earlier and more consequential involvement of
[[Page 103994]]
Tribes and communities from the onset of and throughout the study
process. A few letters expressed concerns that the rule will not be
sufficient to ensure substantial changes on its own. At least two
commenters recommended that the ASPs not be codified, indicating that
not every agency went through rulemaking for their respective ASPs, and
cited concerns over litigation. At least one commenter supported the
decision to codify the ASPs, indicating it aligned with the good
government principles of consistency, predictability, transparency, and
accountability.
Some commenters did not broadly support the proposed rule. A couple
commenters asserted that the ASPs exceed Congressional intent and the
Army's authority. The Army notes that Congress expressly directed it to
develop these ASPs for the PR&G in Section 110 of WRDA 2020. The Army
is executing this direction.
A few comments focused on potential Federal budgeting and financing
implications of the rule. One comment expressed that economic
development remains an important objective of Federal budgetary
criteria. Others sought the inclusion of Federal budget considerations
in the rule and other supporting information. While these are valid
considerations, the budget development and approval processes are
separate from the framework outlined in the rule. Federal budgets are
developed and proposed by the Administration and presented to Congress
for appropriations considerations and approvals. These are separate and
independent actions not related to the formulation of solutions to
water resources related problems for potential implementation via the
Army Civil Works program.
There were a few comments on specific project concerns. The rule
will apply to plans, projects, or programs that are initiated after
this final rule takes effect. In general, the Corps will 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 the final rule effective date.
In general, changes to the final rule included technical and
grammatical corrections. In accordance with the Office of the Federal
Register ``Document Drafting Handbook,'' footnotes have been removed
from the rule. A technical correction to the rule included updating the
cited authority. The authority for the rule has been corrected to 42
U.S.C. 1962-3. Throughout the rule, the abbreviation of ASPs was added
when necessary. Other technical corrections made to the final rule, not
covered in Section D of this preamble, included: correction of the
issuing office for the PR&G in Sec. 234.1; removal of ``and'' prior to
``buyouts/acquisition'' in the second sentence of Sec. 234.2(l); name
correction for the Corps' Interagency and International Services
program in Sec. 234.4(d)(2)(xi); clarifying the reference in paragraph
234.4(d)(2)(xv) to ``Section 234.3''; added ``protect Tribal treaty
rights'' to list of environmental justice principles in Sec.
234.6(c)(1)(ii); deleted duplicative text in next-to-last sentence
within Sec. 234.6(c)(6); fixing a typographical error in the numbering
of Sec. 234.6(f)(7); deleting the caveat in Sec. 234.7(h) ``where
feasible and consistent with the purpose of the water resources
study''; deleted the caveats in Sec. 234.8(a) ``, if one exists,'';
deleted duplicative text in the sixth sentence of Sec. 234.9(c); and a
numbering correction within Sec. 234.11(a)(2).
Based on comments received, text within the rule was updated to
better describe the full consideration of economic, environmental, and
social benefits in decision-making. The rule text has also been updated
to add clarity and emphasis to respecting Tribal treaty rights
throughout the planning process for any plan, project, or program.
A large majority of comments received were seeking further clarity
on process, procedures, methodology, and tools. The Corps will review
current guidance following publication of the final rule to determine
the need for updates.
The Army received many comments stressing the importance of
environmental protection or conservation. This input is incorporated
into various sections of the rule ranging from Guiding Principles to
alternatives formulation to benefits analysis and the clear
presentation of evaluation results.
The proposed rule included 58 items where the Army solicited
specific input from interested parties. The public provided input on 44
of the topic areas. The input received is presented in the ``Section-
by-Section Discussion of the Final Rule and Revisions from the Proposed
Rule'' section of this preamble, including how the information was used
to change the rule or whether the information was not incorporated into
the rule.
The items that did not receive input were: the use of the term
``water resources development projects;'' the inclusion of additional
resilience measurement concepts; the exclusion of Corps watershed
studies from the ASPs; the type of data to use in inflating the
monetary applicability thresholds; whether to account for the non-
Federal share of the costs in setting the monetary thresholds; whether
there are alternative forms to measure ecosystem health; comment on
particular models, tools, methodologies, or other information that may
be helpful in assessing ecosystem resilience; whether the description
of public safety as proposed should be broadened; whether additional
threats to public safety should be included for consideration beyond
those related to natural events; comment on risk informed frameworks
that can supplement or improve the current risk informed planning
processes used by the Corps; comment on when a multi-criteria decision
analysis would be appropriate for the application within PR&G analysis;
and comment on the tools, methods, and processes for assessing the
tradeoffs to best elicit preferences resulting in the most informed
recommendations in a consistent manner.
The input request also solicited comment in general on issues or
concerns related to this proposed rule. That feedback, when received,
is noted in the ``Section-by-Section Discussion of the Final Rule and
Revisions from the Proposed Rule'' section of this preamble.
D. Section-by-Section Discussion of the Final Rule and Revisions From
the Proposed Rule
The final rule incorporates changes based on input received through
the comment process. A summary of the comments received, responses, and
changes to each section are as follows:
Section 234.1 General. This section of the rule describes the
background of the PR&G as well as the authority for the development of
the Corps' ASPs. Nothing in this rule will change any other legal
requirements to which the Corps is subject, including applicable WRDA
provisions. There were no public comments submitted on this section. No
changes were made to the final rule.
Section 234.2 Definitions. This section provides definitions for
relevant terms used in the rule. The Army solicited input on additional
terms that needed to be defined and on whether the definitions required
additional clarity. Several commenters recommended adding various
definitions to Sec. 234.2. A letter was received seeking clarity on
the terms ``actionable science'' and/or ``best available science,'' and
another sought to include a definition of ``environmental
infrastructure projects.'' The following paragraphs describe other
comments received with respect to definitions and the Army responses.
[[Page 103995]]
Response: As a result of the public comment process, the only
addition made to the definitions section is the addition of the term
``professional judgment.''
Section 234.2(a) Acceptability. This paragraph provides a
definition for the term ``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. There were no public
comments concerning the definition of the term ``acceptability.''
Response: No changes were made to the definition of the term
``acceptability.''
Section 234.2(b) Adaptive management. This paragraph provides a
definition for the term ``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. One Tribal Organization proposed that the
definition should reference the need to monitor ecological responses to
the Corps' operations and to institute operational flexibility to
respond to changing conditions. Another comment was received suggesting
that future guidance related to adaptive management include
requirements for how and when those measures are to be evaluated
throughout a project's lifecycle.
Response: No changes were made to the definition of the term
``adaptive management.'' The Army disagrees with the comment proposing
a change to the definition. The ASPs will apply to all Army Civil Works
water resources investments (except in cases outlined in Sec.
234.3(d)(1)), where analysis may include the monitoring of ecological
responses to proposed Civil Works projects.
Section 234.2(c) Completeness. This paragraph provides a definition
for the term ``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. No comments were
received concerning the definition of the term ``completeness.''
Response: No changes were made to the definition of the term
``completeness.''
Section 234.2(d) Effectiveness. This paragraph provides a
definition for the term ``effectiveness'' and describes that an
alternative is effective when it alleviates the specific problems and
achieves the specified opportunities. One comment letter was received
that recommended adding resiliency to the definition.
Response: No changes were made to the definition of the term
``effectiveness.'' The Army does not agree that the suggested changes
would improve the definition, and is retaining the definition provided
in the P&R for consistency with other Federal agencies.
Section 234.2(e) Efficiency. This paragraph provides a definition
for the term ``efficiency.'' This definition is provided in the P&R and
describes the extent to which an alternative may alleviate the
specified problems and realize the specific opportunities at the least
cost. Efficiency is similar to effectiveness with the additional
element of cost consideration. Two commenters recommended including
environmental and social efficiency in the definition. Another
commenter recommended referencing economic efficiency in the
definition.
Response: No changes were made to the definition of the term
``efficiency.'' The Army does not agree that the suggested changes
would improve the definition, and is retaining the definition provided
in the P&R for consistency with other Federal agencies.
Section 234.2(f) Federal investment. This paragraph provides a
definition for the term ``Federal investment.'' The ASPs are intended
to assist the Corps in designing and evaluating potential Federal
investments in water resources. Federal investment, as used in the
PR&G, is broad and intended to capture a wide array of activities that
the Federal Government undertakes relating to water resources,
including projects, programs, and plans. The definition in this rule is
specific to the Corps. A few comment letters recommended expanding the
definition to reference Corps mission areas and to include water supply
and hydropower, among others.
Response: No changes were made to the definition of the term
``Federal investment.'' The final rule applies broadly, including
investments in primary missions, as well as hydropower and water
supply.
Section 234.2(g) Federal objective. This paragraph provides a
definition for the term ``Federal Objective,'' which is the fundamental
goal of Federal investments in water resources. This basic definition
is provided in the PR&G but originates in Section 2031 of WRDA.
Multiple comments were received about the definition of the term
``Federal Objective.'' Comments were received recommending the
inclusion of the complete text from Section 2031 of WRDA 2007. One
commenter recommended text from Engineer Regulation 1105-2-100 where
the planning objectives describe the desired results of the planning
process. Two commenters recommended adding the terms ``resiliency'' and
``sustainability'' and including broader public benefits to key parts
of the definition. One comment recommended including ``remedying past
inequities'' and ``respecting the treaty rights of Tribal Nations'' as
a part of the definition of the term ``Federal Objective.'' One
commenter recommended the rule clearly state that the Federal Objective
be considered as project outcomes for all Federal water resource
projects. Another comment sought to incorporate clearer standards,
thresholds, and directives in the definition to provide for robust
stakeholder engagement similar to current guidance in Engineer
Regulations and Engineer Pamphlets.
Response: No changes were made to the definition of the term
``Federal Objective.'' The Army does not agree with adding the terms
``resiliency'' or ``sustainability'' or broader public benefits to the
definition. The full definition of Federal Objective is detailed in law
(Section 2031 of WRDA 2007) and mirrored in the PR&G. The definition in
the ASPs is abbreviated but the full concepts are detailed in other
parts of the rule. See Sec. Sec. 234.4 and 234.6 of the rule.
The Army does not agree with adding text from Engineer Regulation
1105-2-100 as that description explains the planning objectives of the
study and not necessarily the Federal Objective itself. The Army
already provides guidance that the alternatives should be compared to
the Federal Objective during the formulation stage of a study.
The Army does not agree with including ``remedying past
inequities'' in the definition of the term ``Federal Objective.'' The
P&R defines the Federal Objective based on section 2031(a) of WRDA
2007, which does not include this term.
Regarding respecting treaty rights of Tribal Nations, the Corps is
committed to meeting its trust responsibility by integrating the Civil
Works Tribal Consultation Policy into the implementing guidance for the
PR&G. The Corps will review existing guidance and provide updated
guidance, where
[[Page 103996]]
warranted, following completion of the final rule. This would include
identification of any guidance needed to address the protection of
Tribal treaty rights and trust resources and identifying opportunities
for communities with environmental justice concerns. The final rule was
modified with respect to the treatment of Tribal treaty rights in
Sec. Sec. 234.6, 234.7, and 234.9.
Section 234.2(h) Indigenous Knowledge. This paragraph provides a
description of the term ``Indigenous Knowledge''. The description used
in the rule is consistent with the definition codified by the
Department of Interior, Bureau of Land Management in 43 CFR 2361.5, and
43 CFR 6101.4 (h); and with the description in the November 30, 2022
White House memorandum, ``Guidance for Federal Departments and Agencies
on Indigenous Knowledge.'' Indigenous Knowledge must be considered in
and used to inform all aspects of the implementation of the ASPs, where
relevant and applicable.
Multiple comments were received concerning the proposed rule's
definition of Indigenous Knowledge. One noted that the term should be
defined by Tribal Governments through Government-to-Government
consultation. Another called for incorporating a definition from the
Advisory Council on Historic Preservation. The other expressed the need
to recognize other types of first-hand and long-term knowledge from
local communities.
Response: The final rule describes Indigenous Knowledge, and is
consistent with the descriptions and definitions used in existing law
and existing Federal guidance. The Corps has revised the description
for clarity. While no substantive changes were made, aspects of the
comments received are key to the successful implementation of the
Corps' Civil Works Tribal Consultation Policy and will be considered in
the development of future Corps guidance.
Section 234.2(i) Nature-based alternatives. This paragraph provides
a definition for the term ``nature-based alternatives.'' Two commenters
recommended changes to the definition by adding text recognizing that
the same land can be used for multiple purposes and benefits as well as
the addition of created ecosystems. One comment letter requested
further details regarding establishing clear objectives for use of
nature-based solutions, monitoring requirements, and adaptive
management parameters. One commenter indicated that nature-based
solutions should be excluded from the definition of nonstructural
approaches. Another commenter recommended that the Corps actively
partner with industry to test technologies for nature-based solutions.
Response: No changes were made to the definition of the term
``nature-based alternatives.'' The Army does not agree that the
suggested changes would improve the definition, and is using the
definition provided in the report entitled, ``Opportunities to
Accelerate Nature-based Solutions: A Roadmap for Climate Progress,
Thriving Nature, Equity, & Prosperity'',\4\ issued by CEQ, the White
House Office of Science and Technology Policy, and the White House
Domestic Climate Policy Office (2022). This approach aligns with the
practice of other Federal water resources agencies.
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\4\ 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>. Late accessed May 21, 2024.
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The Corps will review existing guidance and provide updated
guidance, where warranted, following completion of the rule to include
any necessary details regarding the application, evaluation, and
recommendation of nature-based alternatives.
Section 234.2(j) Non-Federal interest. This paragraph provides a
definition for the term ``non-Federal interest.'' The definition is
taken from 42 U.S.C. 1962d-5b(b). The Army solicited comment on whether
equating the non-Federal interest with the local interest is an
appropriate approach for implementation. The Army also solicited
recommendations on how the ASPs can incorporate and identify the role
of the non-Federal interest.
Multiple commenters recommended expansion of the definition of the
term ``non-Federal interest'' to include responsibilities required of
the non-Federal interest as well as their role in the development of a
water resources development project. Several comments were received
suggesting early coordination with non-Federal interests to establish a
solid foundation for any study, to include problem identification,
objectives, constraints, etc. One comment letter suggested the
definition be expanded to acknowledge contributions of non-Federal
interests in defining problems, objectives, and constraints associated
with a water resources development project. One comment letter sought
details on cost-sharing and ownership responsibilities associated with
a completed project. One comment letter requested the acknowledgement
of multiple non-Federal partners on any given study/project. One
comment letter requested early coordination to leverage contributions
from a non-Federal interest in a study/project. Another suggested the
Army should recognize that many projects with non-Federal and local
interests are also of Federal interest because regional economic
benefits have spillover and additive benefits to the national economy.
Another comment letter requested clarity on the implementation
authorities of the non-Federal interest and details on locally
preferred plans.
Response: No changes were made to the definition of the term ``non-
Federal interest.'' The Army does not agree that changes to the
definition of the term ``non-Federal interest'' are required as the
definition is codified in law. Existing Corps documents such as
``Partnering with the U.S. Army Corps of Engineers: A Guide for
Communities, Local Governments, States, Tribes, and Non-Governmental
Organizations'' (2019) outline the role and responsibilities of the
non-Federal interest(s) in development (planning, design, construction,
and maintenance) of water resources projects. Cost-share requirements
for non-Federal interest(s) are established in statute, or otherwise
directed by Congress.
Section 234.2(k) Nonstructural alternative. This paragraph provides
a definition for the term ``nonstructural alternative.'' One comment
letter was received stating the opinion that nonstructural measures are
distinctively different from natural and nature-based measures.
Response: No changes were made to the definition of the term
``nonstructural alternative.'' The Army has retained the definition
provided in the P&R for consistency with other Federal agencies.
Section 234.2(l) Nonstructural approaches. This paragraph provides
a definition for the term ``nonstructural approaches.'' Nonstructural
approaches are intended to apply across the Corps missions and
activities that are subject to the PR&G. Since WRDA 1974, the Corps has
been required to evaluate opportunities to reduce flood damages using
nonstructural approaches in plan formulation. Congress has expanded the
definition of nonstructural approaches and included the requirement for
nonstructural approaches in specific study authorities and for the
rehabilitation of existing structures.
The Army solicited comment on whether the examples in the
definition are appropriate and provide context for the term
``nonstructural'' or whether modifications should be made to the
definition. The Army also solicited comment on whether the definition
best
[[Page 103997]]
enables the Corps to achieve the long-term planning goals and
objectives of the PR&G, including the P&R's healthy and resilient
ecosystems and floodplains Guiding Principles.
A few commenters recommended modifying the definition of the term
``nonstructural approaches'' to show that the approach contributes to
the Federal Objective and reduces project risks or accounts for
externalities. One commenter recommended removing the nature-based
alternative from the list of examples so that it may be presented as
its own alternative during the evaluation process. One comment letter
suggested that nonstructural approaches should not be mandatory when
none exist to address the water resources problem under investigation.
Another commenter worried that developing nonstructural alternatives
would add unnecessary cost to studies.
Response: No changes were made to the definition of the term
``nonstructural approaches.'' The Army does not agree that the
suggested changes would improve the definition, and is retaining the
definition provided in the P&R for consistency with other Federal
agencies. Text was added to Sec. 234.8(f) of the rule requiring
documentation of any decision to not evaluate a particular measure/
alternative if none exists. The Corps already routinely develops
nonstructural measures and approaches in many of its studies without
adding undue costs.
Section 234.2(m) Professional judgment. In response to comments
seeking clarity on use of the term, a definition was added to the rule.
Note: From this point forward, the definitions within Sec.
234.2 will advance one position in the rule (i.e., Sec. 234.2(m) in
the proposed rule will become (n)), due to the addition of the term
``professional judgment.''
Section 234.2(n) Public benefits. This paragraph provides a
definition for the term ``public benefits.'' Public benefits encompass
economic, environmental, and social benefits, and include those that
can be quantified in monetary terms, as well as those that can be
quantified or described in other ways qualitatively. The PR&G provide
for the maximization of public benefits relative to costs. This
definition is adapted from the definition provided in the P&R.
One comment letter suggested public benefits should capture
benefits for affected populations and not communities further removed
from the issue at hand. One comment letter requested further details on
how public benefits will be used to determine the price of storage and
water supply investigations. Another sought clarification of the
meaning and role of public benefits.
The Army solicited comment on how benefits to Tribal Nations should
be described, such as whether benefits to Tribal Nations should be
considered a Federal trust responsibility, and whether benefits to
Tribal Nation should be called out separately from the overarching
``public benefits.'' The Army also solicited comment on how such
analysis would best be conducted for projects affecting Tribal Nations,
and whether the Corps should identify, characterize, and evaluate the
benefits to the Tribal Nation separately, as opposed to including them
in a broader assessment of the overall benefits of the proposed project
and the alternatives to the U.S. Nation (including the affected Tribal
Nations).
Multiple comments supported the distinction of Tribal benefits from
public benefits. Two comments highlighted the challenges with
adequately capturing or quantifying Tribal benefits through a cost-
benefit analysis. One Tribal Nation stated that Tribal treaty and
reserved rights, including treaty-protected resources and habitats, are
not and should not be characterized as ``benefits'' (whether ``Tribal''
or ``public''); rather, they are the supreme law of the land, which
should not be evaluated in a cost-benefits analysis.
Response: No changes were made to the definition of the term
``public benefits.''. The Army acknowledges that Tribal benefits are
categorically separate from public benefits and must be identified in
consultation with the Tribal Nation to which the benefits would accrue.
The Corps will review existing guidance and provide updated guidance,
where warranted, following completion of the rule to include additional
details or procedures for presenting quantitative or qualitative public
benefits and benefits to Tribal Nations. Additional clarifying text was
added to the rule regarding the treatment of Tribal treaty rights in
Sec. Sec. 234.6, 234.7, and 234.9.
Section 234.2(o) Regulatory. This paragraph provides a definition
for the term ``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'' actions can
include the promulgation of regulations as well as other activities
such as permit decisions. There were no public comments concerning the
use of the term ``regulatory.''
Response: No change was made to the definition of the term
``regulatory.''
Section 234.2(p) Resilience. This paragraph provides a definition
for the term ``resilience.'' This definition is provided in the P&R.
The Army solicited comment on whether the resilience definition
provided in Executive Order 13653 (Preparing the United States for the
Impacts of Climate Change) (78 FR 66817 (Nov. 6, 2013)), the National
Climate Resilience Framework, or M-24-03 (Advancing Climate Resilience
through Climate Smart Infrastructure Investments and Implementation
Guidance for the Disaster Resiliency Planning Act) should be included
in the regulation instead of or in addition to the proposed definition.
The Army also solicited comment on whether additional concepts from
these documents should be included in the rule.
Some commenters felt the proposed definition of resilience was too
narrow and recommended expanding the definition. Other commenters
suggested that the definition was too broad, and asked that it be
aligned with current Corps guidance.
Response: The Army updated the definition of resilience in the
final Rule in accordance with the National Climate Resilience
Framework.
Section 234.2(q) Sustainable. This paragraph provides a definition
for the term ``sustainable.'' This definition is provided in the P&R
and refers to the conditions where humans and nature can coexist.
One commenter recommended expansion of the definition of
sustainable to include a characterization of the effects or outcomes of
potential actions to be assigned to benefits.
Response: No changes were made to the definition of the term
``sustainable.'' The Army does not agree that the suggested changes
would improve the definition, and is retaining the definition provided
in the P&R for consistency with other Federal agencies.
Section 234.2(r) Tribal Nation. This paragraph provides a
definition for the term ``Tribal Nation.'' This definition is
consistent with the Federal Government's definition and identification
of a Tribal Nation by the Secretary of the Interior (25 U.S.C. 5130).
Environmental justice is one of the Guiding Principles of the P&R
and this rule. The Army recognizes that there are other Indigenous
populations, Native Hawaiian Organizations, and non-Federally
recognized Tribes that may not meet the definition of the term ``Tribal
Nation.'' Many of these include communities having environmental
justice concerns. Regardless of definitions and legal authorities
[[Page 103998]]
applicable 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 addressed in the preamble's discussion of Sec. 234.6(d).
Such outreach and coordination would be separate from Government-to-
Government consultation requirements.
The Army solicited comment on whether non-Federally recognized
Indigenous populations should be defined separately for the purposes of
the PR&G. One public comment recommended that Indigenous populations be
defined separately from Federally recognized Tribes for the purposes of
the PR&G. One public comment supported full outreach with all
Indigenous populations, regardless of Federal recognition, to fully
assess environmental and equity concerns. One Tribal Nation supported
the definition as proposed in the draft rule.
Response: In consideration of the comments received and after
Nation-to-Nation consultation, the Army did not make a change to the
definition of the term ``Tribal Nation.'' The Army recognizes the
complexities of Federal recognition for Indigenous communities, many of
which have significant environmental justice concerns regardless of any
status as Federally recognized Tribes. The Army will continue outreach
and other best practices for Indigenous populations that do not have
Federal recognition.
Section 234.2(s) Unwise use of floodplains. This paragraph provides
a definition for the term ``unwise use of floodplains.'' This
definition is adapted from the definition provided in the P&R. The
proposed definition of ``unwise use of floodplains'' included any
action that is incompatible with or adversely impacts one or more
floodplain functions that leads to a floodplain that is no longer self-
sustaining. The Army solicited comment on how the Corps should evaluate
the self-sustainment of a floodplain that is occupied or inhabited.
Multiple commenters recommended clarification and/or expansion of
the definition. One commenter recommended alignment of the definition
with Executive Order 11988. Others sought the inclusion of broader
concepts such as a climate-informed science approach and a Federal
Flood Risk Management Standard. Other commenters supplied recommended
language to identify the category of broad impacts on attributes of the
floodplain. One comment letter requested the definition be expanded to
acknowledge the importance of floodplains to fish and wildlife. Others
noted that wetlands and floodplains are essential resources that
provide numerous ecosystem services.
Response: The Army added the following sentence to the Rule
definition: ``To identify floodplain areas for the purpose of this
section, the Corps will use the best-available and actionable science
including a climate-informed science approach.'' This was done for
consistency with the Federal Flood Risk Management Standard established
under Executive Order 13690 (Establishing a Federal Flood Risk
Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input) (80 FR 6425 (Feb. 4, 2015)).
Section 234.2(t) Watershed. This paragraph provides a definition
for the term ``watershed.'' This general definition for watershed is
provided in the P&R. There were no public comments concerning the
definition of the term ``watershed.''
Response: No changes were made to the definition of the term
``watershed.''
Section 234.3 Exceptions. This section describes a way to request
an exception from the Assistant Secretary of the Army for Civil Works
to the requirements or policy contained in this rule. Exception
requests must be submitted in writing.
Several comments were received on this topic. One comment letter,
from a Tribal Organization group representing seven Tribal Nations,
recommended including criteria for the Assistant Secretary of the Army
for Civil Works to grant exceptions. Several comment letters similarly
requested clear parameters and criteria for seeking an exception from
the Secretary for any policy exception. One comment letter requested
additional details on unique circumstances that may require exceptions.
Two comments were received requesting a public notification process
when exceptions are obtained for an undertaking. Another recommended
striking the provision allowing non-Federal sponsors to request
exemptions. One comment requested an explanation of the intended use of
the exception authority and a requirement for periodic reporting of the
use of exceptions. A State water agency noted that stranded asset
situations should be specifically identified as eligible for an
exception.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the rule regarding process and procedures for
exceptions.
Section 234.4 Objectives and applicability.
Section 234.4(a) Introduction. This paragraph of the final rule
states the goals and objectives of the ASPs. The final rule will help
ensure consistency and transparency in the Corps' implementation of the
PR&G by providing a common framework codified in regulation. The
rulemaking process provided an opportunity for review and comment prior
to finalization. The Corps has various guidance documents for its water
resources development project planning process, but the final ASPs will
ensure all projects, plans, and programs subject to the PR&G are using
the same Guiding Principles and considerations in developing
alternatives and recommendations. After finalizing the ASPs, the Corps
will review its guidance documents and rescind, modify, or develop new
guidance as needed to comport with and further the objectives of the
ASPs. However, the final ASPs are intended to stand on their own
regarding the overall framework and provide the guideposts for the
Corps when implementing the PR&G.
The Army solicited comment to identify where additional details may
be warranted in the final rule and preamble, and where additional
specific technical tools or methodologies may be warranted in follow-on
Corps guidance documents.
A comment was received during a virtual public meeting questioning
how the ASPs will integrate with the Engineer Regulation 1105-2-100,
which was recently updated with Engineer Regulation 1105-2-103.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the rule for any process and procedures
necessary to implement the final rule.
Section 234.4(b) Objectives for Federal water resources
investments. This paragraph of the rule discusses the Federal
objectives for Federal water resources investments, building on the
definition of the Federal Objective provided in Sec. 234.2(g). Section
2031 of WRDA 2007 describes 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
[[Page 103999]]
protecting and restoring the functions of natural systems and
mitigating any unavoidable damage to natural systems. Consideration of
the P&R Guiding Principles when developing Federal water resources
investments will assist in achieving the Federal Objective. Section
2031 did not provide a hierarchy for how to accomplish the objective
nor does this final rule.
National priorities may include general priorities (for example,
health and safety) but can include more specific priorities that emerge
and may evolve over time. There are 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 laws or developed by the Administration and
are informed by stakeholder and community engagements. The Corps will
also fulfill its Tribal trust responsibilities under applicable
treaties.
Response: No changes were made to the final rule. Please see this
preamble's discussion of Sec. 234.2(g) for a response to the public
comments on the definition of the term ``Federal Objective.''
Section 234.4(c) Net public benefits. This paragraph of the rule
describes the net public benefits to society, which are sought to be
maximized. Per the P&R, public benefits encompass economic,
environmental, and social goals. Public benefits include benefits that
can be described in monetary terms and those that can be quantified or
described in other ways or qualitatively.
A key aspect of the PR&G is that the environmental, economic, and
social impacts are interrelated. In addition, the potential solutions
to a water resources challenge or opportunity may produce varying
degrees of effects relative to environmental, economic, and social
goals. As a result, the Corps will describe, assess, and consider the
tradeoffs among the potential solutions to inform the decision-making
process.
The study should evaluate all key benefits and costs to society
that are relevant to the investment decision. The extent to which the
alternatives would have effects across the three categories will
naturally vary across Corps studies.
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 will allow decision-makers to view a more complete
range of effects of alternative actions and will lead to more socially
beneficial investments.
Some benefits may be difficult to categorize as economic,
environmental, or social. Analysts should be as specific as possible
when categories cannot easily be assigned and to describe the relevance
when evaluating alternatives. Double-counting should be avoided. In
addition, when economic, environmental, and social goals compete, the
Corps will describe such instances and include the considerations in
the tradeoff analysis (see Sec. 234.10(b)).
Under the ASPs, consideration of the range of economic,
environmental, and social benefits is an integral component of the
planning process. Development of a comprehensive plan to address the
water resources challenge or opportunity must begin in the earliest
phases of the planning process and continue throughout the process.
The Army solicited comment on whether net public benefits should be
described without the additional step of categorizing them into
economic, environmental, and social categories, 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.
The Army received a number of comments on this topic. Several
commenters indicated that environmental, economic, and social impacts
should be displayed separately. One commenter indicated that providing
both combined and segregated data may provide a better understanding of
projects as a whole and in parts but indicated that the benefit-to-cost
ratio should not commingle non-economic costs in an economic efficiency
analysis. Another commenter indicated that net public benefits should
be described and displayed in separate national accounts for analysis,
evaluation, and comparison. It suggested that tradeoffs, double-
counting, overlaps, and other relationships between national accounts
can be more easily identified when displayed in separate accounts. A
commenter suggested that benefits should not be categorized as they
felt that avoiding categorization implicitly avoids double-counting and
allows the benefits to be included independent of any bias or
importance ascribed to a particular category. Another felt that they
should not be categorized as doing so suggests sharp distinctions
between economic, environmental, and social effects.
One comment suggested the consideration and evaluation of a range
of benefits (environmental, economic, and social), especially for
natural and nature-based solutions. Related comments focused on
including environmental and social considerations in the comprehensive
evaluation of costs and benefits.
Another commenter indicated that details on the methodology for
determining net public benefits are not included in the rule and said
that it is unclear how economic benefits calculated in the traditional
national economic development approach will be reformulated to remove
the bias toward higher property values, which it said is inherent to
the calculation of avoidable damages. Multiple commenters mentioned the
need for future guidance on how net benefits will be determined and
displayed. One comment specifically called for clarification on how
this concept will be used in pricing water supply storage.
Several commenters recommended including in the rule language from
the Interagency Guidelines stating that there is no hierarchy among
environmental, social, and economic benefits to ensure that economic
objectives do not remain the driving force. However, one commenter
suggested that life safety be given priority over all other
considerations.
One commenter indicated that adherence to the P&G's national
economic development objective, which avoids internal redistribution of
economic benefits and costs, is inconsistent with elements of social
impacts where the intent is the redistribution of benefits towards
disenfranchised communities, and also said that a philosophical
reconciliation needs to be explicitly addressed or a higher emphasis
placed on regional economic development.
Response: No changes were made to the final rule. Net public
benefits will be determined based on the economic, environmental, and
social benefits and costs to society as a whole. There is no stated
goal of redistribution of benefits for Corps projects but rather an
emphasis on analyses and metrics that can account for communities with
environmental justice concerns and Tribal lands. The use of social
impacts (positive or negative) in the evaluation of potential Federal
actions will allow the direct consideration of effects that are not
captured by traditional economics. Any new metrics or monetization will
be economically and scientifically sound.
[[Page 104000]]
Regional economic development effects are the changes in the
distribution of economic activity that would result from implementation
of an 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. A separate regional economic development analysis can
account for the transfer effects of a proposed Federal investment where
the effects of spending or jobs on the local area may be a
consideration.
The Corps will review existing guidance and provide updated
guidance, where warranted, following completion of the final rule.
The Army solicited comment on whether it should be acknowledged
that Tribal benefits are part of the trust responsibility in
implementing the PR&G.
Response: No changes were made to the final rule. 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 (such as
existence or bequest values), or some culturally valued experiences
(for example, spiritual connection to nature and option to lead a
subsistence way of life).
The Army solicited comment on approaches and tools that may be
employed to best enable the Corps to have consistent and transparent
implementation, including using any final guidance provided by the
Office of Management and Budget (OMB) on ecosystem services in response
to its August 2, 2023, proposal (88 FR 50912). OMB finalized its
ecosystem services guidance, ``Guidance for Assessing Changes in
Environmental and Ecosystem Services in Benefit-Cost Analysis,'' in
February 2024.\5\
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\5\ See <a href="https://www.whitehouse.gov/wp-content/uploads/2024/02/ESGuidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2024/02/ESGuidance.pdf</a>. Last accessed May 21, 2024.
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The Army received some comments suggesting potential tools and
considerations regarding the use of ecosystem services valuations when
assessing project alternative plans. One commenter indicated that the
ASPs should state that the Corps must account for the value of
ecosystem services lost as a project cost, and account for the value of
ecosystem services gained as a project benefit and that potential
mitigation measures may not be used to offset the loss of ecosystem
services. Another commenter mentioned that discounting methodologies
applied to ecosystem services or natural resources incorporate the
impact of potential scarcity into future cost/value of these natural
services and resources.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule. Ecosystem service impacts will
be considered in the benefit costs analysis as appropriate. The Army
disagrees that mitigation may not be used to offset the loss of
ecosystem services.
The quantification of benefits relates to several evolving fields
and new methods may develop over time. The PR&G and the 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.
The Army solicited comment on whether life safety benefits should
be specifically identified, and if so, under which of the three
benefits categories. Several commenters responded to this inquiry. One
responder indicated that life safety benefits should be identified,
include national security, and be considered under other social
effects. Another responder indicated that they should be identified and
have a greater focus while being integrated across economic,
environmental, and social categories. Another responder indicated that
they should be front and center to any analysis and not placed in any
one category.
Response: No changes were made to the final rule. Life safety
benefits will be displayed in the social benefits category. The Corps
will review existing guidance and provide updated guidance, where
warranted, following completion of the final rule.
Section 234.4(d) Applicability. This paragraph describes the
projects and programs that must use the ASPs and outlines those
projects and programs that are excluded from the requirements of this
rule. Essentially, the PR&G apply to all Corps projects and programs
that are not identified as excluded in Sec. 234.4(d)(2) or granted an
exception under Sec. 234.3. 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 qualifies for a NEPA
categorical exclusion, such exclusion does not automatically trigger an
exclusion for applicability of the ASPs. However, projects or programs
may meet the terms of an exclusion under both NEPA and this rule.
This rule will also apply to non-Federal interests who undertake
feasibility studies to support an authorization to construct a Corps
water resources development project, such as under Section 203 of WRDA
1986, as amended (33 U.S.C. 2231).
The following actions are excluded from the ASPs as these actions
and activities do not result in the consideration of a proposed Federal
water resources investment: Corps Regulatory actions; real estate
actions; technical services programs, such as Planning Assistance to
States and Flood Plain Management Services; Section 408 actions; the
Public Law 84-99 program; the Water Infrastructure Finance and
Innovation Act Program; environmental infrastructure projects; land
management plans; operation and maintenance (O&M) activities carried
out in a manner consistent with an existing O&M manual or O&M plan;
Interagency and International Services and Support for Others program
actions; research or monitoring activities; and emergency actions.
Monitoring (e.g., water quality monitoring or fish monitoring) and
research activities are excluded from the requirements of this rule.
Such activities may be used to inform Federal investments in a proposed
or existing water resources development project, but they are not
themselves a water resources development project, program, or a related
Federal investment decision. The Interagency Guidelines provide that
the PR&G are 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 Services and Support for
Others program actions are excluded from the requirements of this rule.
These actions are provided on a reimbursable basis and as such are
assistance to other programs and not a proposed Federal investment by
the Corps, as are the other activities covered under the ASPs. All the
work that the Corps performs under these programs is requested by other
agencies that pay the
[[Page 104001]]
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 provides engineering and construction
services, environmental restoration and management services, research
and development assistance, management of water and related land
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
Corps ASPs. Although excluded from the Corps 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 Table 1 are generally for routine
investments. In most cases, these investments would not have
significant adverse effects on water resources. Projects or plans
implemented under programmatic authorizations from Congress (e.g.,
Tribal Partnership Program and Continuing Authorities Program) are
potentially included under the ASPs depending on the monetary
thresholds for the actions. Any study, project, or plan that meets the
monetary thresholds contained in Table 1 would need to be assessed to
determine the appropriate level of analysis to be applied. Any study,
project, or plan that falls below the $15 million threshold would be
excluded from the ASPs.
Also included in the list of exclusions are those programs, plans,
or projects that fall under an exception in Sec. 234.3.
Excluded activities within these projects or programs will follow
the relevant laws, Tribal treaty and reserved rights, regulations, and
general planning processes, and will still strive to meet the intent of
the PR&G by applying similar concepts where relevant.
The Army solicited comment on whether modifications allowed under
the Public Law 84-99 program should not be excluded from the
requirements of this rule. Two responders commented on the ASPs
applicability to the Public Law 84-99 program. One commenter indicated
that the Corps should apply the improved planning framework in the ASPs
to Public Law 84-99 to the greatest extent practicable to help
communities prepare for natural disasters and ensure these projects are
designed and evaluated for the full range of comprehensive benefits,
and that the process for applying these ASPs to the Public Law 84-99
program should be scaled in a manner to be consistent with the
emergency response nature of this program. Another responder indicated
that the Army and the Corps should consider removing or limiting the
proposed exclusion of the Public Law 84-99 program regarding repair or
restoration activities on flood control and shoreline management works
threatened or destroyed by flooding. However, the commenter indicated
that it is appropriate to retain the exclusion for inspections,
preparedness activities, technical assistance, direct flood fighting
assistance, rescue operations, and post-flood response.
Response: No changes were made to the final rule. Upon further
consideration, modifications implemented under the Public Law 84-99
program are better addressed in the Public Law 84-99 rule (33 CFR part
203) and associated guidance and thus have been excluded from the PR&G.
The Army solicited comment on whether additional exclusions should
be added, such as dredged material management plans, Tribal Partnership
Program activities, Continuing Authorities Program, and major
rehabilitation evaluation reports due to scope, scale, level of
investment, project partner, technical nature of the product, etc.
One commenter suggested that the ASPs should be applied to
operating manuals and water control plans. One comment sought the
addition of renewals and replacements to the actions in Sec.
234.4(d)(2)(x). Another suggested removing Sec. 234.4(d)(2)(xv) or
prescribing a process for these decisions. It was also suggested that
Sec. 234.4(d)(2)(xiv) be deleted or clarified with provisions. Another
commenter indicated that the ASPs should apply to existing projects.
Comments received from a Tribal Nation and a Tribal Organization also
recommended that the PR&G should apply to existing operations of Corps'
projects affecting Tribal land or water. One commenter responded and
suggested that when formulating dredged material placement
alternatives, the Corps should account for all benefits of beneficial
use placement opportunities, including the economic value of clean
dredged material for ecosystem restoration and storm damage reduction
and cost savings available.
One comment recommended adding a sentence indicating that excluded
projects should still strive to meet the intent of the PR&G and ASPs by
applying similar concepts where relevant.
Response: No changes were made to the final rule. The ASPs will
apply to all new Army Civil Works' water resources investments that
meet the threshold criteria contained in Table 1, to include
feasibility studies; general reevaluation reports; major rehabilitation
reports; studies performed under the continuing authorities program of
the Corps; studies to support significant changes to operations
including any such changes that warrant preparation of an environmental
impact statement, re-allocation studies, and studies conducted under
Section 216 of the Flood Control Act of 1970 (33 U.S.C. 349a); and any
other project or program not otherwise excluded under Sec.
234.4(d)(2).
The suggestion to add operating manuals and water control plans
under the ASPs was not adopted for O&M activities that are carried out
in a manner consistent with the existing approved O&M manual or plan
that are routine in nature. However, the ASPs would apply to
significant proposed changes to an existing O&M plan that may be
controversial, significant changes to the existing plan to meet new
goals, and other significant changes that may warrant a fresh
exploration of the options.
Section 234.4(d)(2)(xiv) was modified to remove ``that meet the
threshold criteria for exclusion or''. This was done to clarify that
Table 1 determines the cost-based threshold criteria for the
application of the ASPs to projects, programs or plans.
Section 234.4(d)(2)(xv) was retained to preserve the Assistant
Secretary of the Army for Civil Works' ability to make exceptions on a
case-by-case basis.
The ASPs provide a framework to govern how the Corps would evaluate
proposed water resources investments and do not apply to existing
projects where no changes are proposed. The Corps will review existing
guidance and provide updated guidance, where warranted, following
completion of the final rule.
In addition, the Army solicited 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. The Army did
receive input in response to whether any of the actions identified as
proposed exclusions should not be excluded. This input was related to
the Public Law 84-99 program and those comments are addressed earlier
in this section of the preamble.
Response: The final rule clarifies the scope of the O&M exclusions.
No other
[[Page 104002]]
changes were made to the list of exclusions in the final rule.
The Army solicited 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.
A number of respondents indicated that studies should follow a
watershed approach. Multiple responders indicated that the PR&G should
apply to watershed studies. One responder indicated that if watershed
studies include the development of specific future projects or
potential future projects, they should follow the ASPs. The specific
requirement for such plans might be less than the full planning
approach outlined for specific projects, but these studies seek to
maximize net public benefits in a manner consistent with the ASPs and
the Federal Objective.
Response: No changes were made to the final rule.
The Army solicited comment on whether watershed studies should be
excluded from the requirements of this rule. A responder indicated that
the concept of watershed studies brings its own set of challenges,
highlighted by concerns regarding the practicability of advancing
individual Civil Works projects within broader watershed study areas.
Response: No changes were made to the final rule. Watershed studies
do not typically result in specific Federal investment construction
recommendations; in those cases, they would not be subject to the ASPs.
If a watershed study does include recommendations that meet the
monetary thresholds for inclusion, then the ASPs would apply. The Corps
will review existing guidance and provide updated guidance, where
warranted, following completion of the final rule.
Section 234.5 Level of analysis. Once a decision is made that the
PR&G apply under Sec. 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 applied based on the
scope and magnitude of the proposed projects, programs, or plans, and
the significance of the Federal investment. The different levels of
analysis allow for investment decisions to be made effectively and
efficiently. Many small, routine activities are excluded from the PR&G
analysis under the rule (refer to Sec. 234.4(d)(2)) such as O&M
activities that are carried out in a manner consistent with the
existing approved O&M manual or routine investments in invasive species
removal. 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
ASPs include a table that provides the monetary threshold criteria to
be used for identifying the types of projects, programs, or plans and
their corresponding level of analysis.
The Army solicited comment on whether the proposed rule language
regarding benefit-cost analysis in this section is adequate or whether
additional content or examples are needed in the rule text. The Army
also solicited comment on the types of analyses that may best be used
to evaluate the full range of public benefits under both standard and
scaled levels of analysis.
The Army received comments that more rigorous analysis may be
warranted if significant non-monetized effects are likely to occur. The
Army also received comments that the standard level of analysis is
appropriate for any proposal that would require an Environmental Impact
Statement under NEPA. Another comment advised in-depth analysis when
the uncertainty is so high that the performance metric ceases to be
informative.
Other comments were that the benefit transfer methods discussed in
this section of the proposed rule were weak and that the Army should
define what should be similar for projects to apply other studies'
benefit functions, and to include guidance on how to scale or weight
studies to better match the local context. Another comment expressed
concern over the use of benefit transfer and expressed the need for
more clarity regarding when it is appropriate.
One organization offered that a benefit-cost analysis tool has an
inherent error that could be avoided with external review. One
commenter expressed concern that the ASPs should also clarify that they
do not establish a new requirement for a positive, quantified benefit-
cost determination to justify the recommendation of an ecosystem
restoration project.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
Section 234.5(b) Determining the appropriate level of analysis.
This paragraph of the rule describes the process for determining the
appropriate level of analysis under the PR&G. In addition to the
considerations and descriptions provided in Sec. 234.5(a) for the
scaled and standard analysis and the criteria provided in Table 1 to be
used as a general guide, the ASPs note that professional judgment and
available resources are also important factors in determining the
appropriate levels of analysis.
The Army solicited comment on additional considerations to be
applied when determining the appropriate level of analysis under the
PR&G and whether additional clarity is needed on how such
determinations may be made.
One commenter indicated that mechanisms other than project cost
should be considered to determine the appropriate level of analysis and
indicated that planning efforts that do not exceed the monetary
thresholds can inform major investment decisions that vastly exceed
these thresholds, and it would be difficult to reassess climate change
during the implementation phase if a quantitative climate change
analysis is not included in the planning phase.
One commenter indicated that the rule fails to identify specific
criteria that will be applied to determine the level of analysis, and
to address this lack of clarity additional content or examples are
needed in the regulatory text. Another commenter indicated that the
Corps should consult with State and local partners when determining the
appropriate level of analysis. In particular, the Corps should work
with State partners that have permitting and review obligations to
ensure that the planning analysis, including investigations and data
collection, meets both the Corps' and State review data needs. Another
commenter expressed concern that the ASPs puts too much emphasis on
monetary criteria and inadequate emphasis on potential environmental
impacts in discussing how the Corps will determine which level of
analysis to apply to a particular project. The commenter recommended
including language describing factors that could justify deviating from
Table 1 in the text of the final rule. The responder also recommended
adding language to Table 1 to clarify that the monetary thresholds are
not decisive on their own. Finally, this responder indicated that that
the standard level of analysis is appropriate for any project that
would require an Environmental Impact Statement under NEPA. Another
commenter stated that industrial-scale offshore wind projects that
involve significant ocean area must trigger the full PR&G and must
require in-depth,
[[Page 104003]]
extensive scientific analysis as part of the Corps' regulatory process
to ensure no harm to the ocean ecosystem and the communities that
depend on access to fisheries.
Response: No changes were made to the final rule. This rule does
not apply to the Corps' Regulatory program. The Corps will consult with
Federal, State, and local partners in determining the appropriate level
of analysis to include State partners with permitting and review
obligations. The Corps will review existing guidance and provide
updated guidance, where warranted, following completion of the final
rule regarding the level of analysis to be used in planning studies.
Section 234.5(c) Scope and magnitude of analysis required. The
threshold criteria provided in 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. In the proposed
rule, Table 1 was taken straight from the Interagency Guidelines. The
monetary thresholds were designed to be relevant to all agencies
implementing the PR&G to provide a common framework and baseline.
Programmatic-level analyses require the detail necessary to ensure
decision-makers have sufficient information to make an informed
decision, but they may be conducted differently than project-level
analyses. The Corps may choose to analyze the effects of a Federal
investment at a higher level of detail than called for by Table 1.
The Interagency Guidelines state that the P&R specifically apply 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 in Table 1. O&M activities
resulting in consequential effects on water quantity or water quality
that have not been previously analyzed should be appropriately analyzed
using either the project- or programmatic-level processes laid out in
the 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 excluded
(see Sec. 234.4(d)). O&M activities that are included in original
project authorizations do not require a separate analysis if the
activity is carried out in a manner that is consistent with that
authorization. Significantly changed O&M plans or those changed to meet
new goals may require a new analysis at the standard or the scaled
level.
The Army solicited comment on whether the values provided in Table
1 are the appropriate thresholds to apply for the Corps and also
whether the amounts should be adjusted for inflation from the original
amounts provided, which were developed in 2014. The Corps further
solicited comment about what data should be used to make those
adjustments going forward, such as Gross Domestic Product deflator,
Consumer Price Index, or something else. The Army solicited comment on
whether the Corps should account for the non-Federal share of the costs
in setting these thresholds to reflect the total cost to society
(Federal plus non-Federal costs) of the proposed investment. The Army
also solicited 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 solicited comment
on whether either of those considerations warrant a revision to Table 1
for the Corps.
Comments received from a Tribal Nation and a Tribal Organization
recommend threshold criteria provided in Table 1 should not limit the
evaluation of proposed activities that could impact Tribal Nations.
Another commenter recommended indexing the threshold values to account
for economic conditions since 2014.
Response: Table 1 was modified in response to comments received.
Threshold values and ranges were updated and increased to reflect total
investment (Federal and non-Federal). These thresholds are not intended
to preclude or minimize the Tribal trust responsibility and resulting
Government-to-Government consultation requirements when determining the
scope and scale of analysis where a Federal action may have Tribal
implications.
Section 234.6 The planning process.
Section 234.6(a) Introduction. This paragraph describes how the
planning process will incorporate the Guiding Principles from the P&R
in the analysis and development of Corps Federal investments in solving
water resources problems.
Response: The Army made minor edits to this section of the Rule for
clarity. In response to comments from Tribes and a Tribal Organization
concerned that the Army recognizes Tribal treaty rights, the following
text was added to this section of the rule: ``The Corps will identify
impacts to Tribal treaty and water rights at the earliest phases and
throughout the plan evaluation process, screening alternatives that
impact Tribal treaty and water rights.''
Section 234.6(b) National Environmental Policy Act. This 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. Compliance under NEPA and this rule does not eliminate
the Corps' obligations under other statutory requirements (for example,
Endangered Species Act compliance) or fulfillment of Tribal trust
responsibilities.
The Army solicited comment 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, in particular.
One comment was received requesting that the Corps update its
models and policies to better reflect the full economic and
environmental benefits of channel expansion projects.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
Section 234.6(c) Guiding principles. This section describes the
Guiding Principles for the planning process that the P&R identify,
which are environmental justice, avoiding the unwise use of
floodplains, healthy and resilient ecosystems, public safety,
sustainable economic development, and a watershed approach. The Guiding
Principles are intended as overarching concepts to ensure that Federal
water resources investments best serve the public.
Many comments suggested that the rule provides insufficient
guidance for achieving goals aligned with the Guiding Principles.
Another comment suggested including a new Guiding Principle associated
with rising sea levels.
Response: No changes were made to the final rule. The Guiding
Principles were identified in the P&R. The Corps will review existing
guidance and
[[Page 104004]]
provide updated guidance, where warranted, following completion of the
final rule.
Section 234.6(c)(1) Environmental justice. This section defines the
term ``environmental justice'' and states that communities with
environmental justice concerns will be ``at the front and center of
studies.''
The Army received multiple comments about the Guiding Principle of
environmental justice. The majority of commenters support the inclusion
of environmental justice as a Guiding Principle. Comments recognized
the benefits to communities with environmental justice concerns of the
broader evaluation framework and the decision-making criteria in the
ASPs. Another organization suggested adding text from the preamble to
the rule itself to highlight potential issues that should be evaluated.
Some commenters requested additional specifics about how the Corps
will realize the goals of environmental justice, including how relevant
communities will be identified. One commenter mentioned the need to
define communities with environmental justice concerns and
disadvantaged communities.
Some commenters recommended specific tools, techniques, or
procedures to help realize these goals; others called for environmental
justice to be prioritized throughout all aspects of the ASPs. Others
advocated to strengthen the standard for project selection.
Commenters noted the need to transparently include communities in
decision-making. One commenter recommended targeted outreach to ensure
equitable access to participation.
Another commenter asked how communities would be compensated should
they endure negative environmental impacts from Corps' projects.
Response: The Army made minor edits to this section of the Rule for
clarity. The Corps will review existing guidance and provide updated
guidance, where warranted, following completion of the final rule. In
accordance with the Water Resources Development Act of 2007, Section
2036, the Corps is required to develop a mitigation plan to address
environmental impacts from Corps projects. If a community is enduring
long-term negative environmental impacts from a Corps project,
appropriate response could be considered on a case-by-case basis in
accordance with Federal law, regulation, and policy.
The opportunity for meaningful input by affected communities is a
component of the definition of the term ``environmental justice.''
Comments pertaining to outreach and collaboration with communities with
environmental justice concerns are addressed under this preamble's
discussion of Sec. 234.6(d).
Additional commenters expressed concerns, not about the Guiding
Principle itself, but about the tone with which environmental justice
is discussed in the rule. Some wished for the principle to be
emphasized more strongly; others expressed concern that the rule over-
emphasizes the importance of environmental justice and that such over-
emphasis ultimately could impair the quality of the Corps' decision-
making, especially in cases when achieving environmental justice-
related goals may appear to conflict with the objectives or feasibility
of specific projects.
Response: The Army reiterates that environmental justice is an
important Guiding Principle of these ASPs, identified in the P&R
alongside the other Guiding Principles. The Army disagrees with the
supposition that any of these principles, including environmental
justice, will negatively impact the Corps' work. On their own, the
Guiding Principles do not mandate specific mission or project outcomes;
rather, they act as policy guideposts to ensure that the Corps serves
the public in the execution of its authorities.
One commenter asserted that the inclusion of environmental justice
as a Guiding Principle exceeds Congressional intent and asked for it to
be removed from the rule.
Response: The P&R identifies environmental justice as a Guiding
Principle, and the consideration of impacts on local communities
embodied by that principle is reflected in Section 2031(a) and (b)(3)
of WRDA 2007. Congress expressly directed the Corps to develop these
ASPs for the PR&G in Section 110 of WRDA 2020. The Army is executing
this direction.
Some commenters, including a Tribal Organization, suggested that
remedying past inequities should be a Guiding Principle or a standard
decision-making factor in the planning criteria for existing and future
water resources development projects. One comment from a Tribal Nation
supported the inclusion of subsistence and social impact assessments,
and greater transparency for evaluating benefits and impacts under
environmental justice analysis of a proposed project. Through
Government-to-Government consultation with another Tribal Nation, a
comment was made to differentiate broader environmental justice
concerns from protected Tribal treaty or reserved rights.
Response: The Guiding Principles are defined in the P&R. The Army
agrees that subsistence activities should be considered in agency
decision-making under the environmental justice Guiding Principle. The
rule includes this language at Sec. 234.6(c)(1)(ii). The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
Related to environmental justice, the Army solicited comment on how
the navigation program can use tools and resources to assess and, as
appropriate, demonstrate project benefits for disadvantaged communities
and other nearby communities.
Commenters representing Tribes recommended a social impact
assessment tool, not specific to navigation, for identifying impacts on
Tribes and other communities with environmental justice concerns. These
comments are addressed under the discussion of Sec. 234.9(c) in this
preamble.
Response: No changes were made to the final rule.
Section 234.6(c)(2) Floodplains. This section states that Federal
investments shall strive to sustain floodplains' natural and beneficial
functions to the maximum extent practicable.
The Army received comments expressing support for the inclusion of
floodplains in the Guiding Principles. Some sought for the principle to
be strengthened, especially with respect to long-term implications of a
changing climate, or to be aligned expressly with current Corps
guidance and other Federal policy documents. Other commenters wanted to
see explicit language in the ASPs ensuring that projects are self-
sustaining and do not result in the unwise use of a floodplain. A
commenter suggested that the rule specifically address how the Corps
would implement the Federal Flood Risk Management Standard established
under Executive Order 13690 (Establishing a Federal Flood Risk
Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input) (80 FR 6425 (Feb. 4, 2015)).
The Army solicited comment on how the Corps should evaluate the
self-sustainment of a floodplain that is occupied or inhabited. Some
commenters suggested a variety of specific assessment methodologies.
They also recommended working with academic experts to identify
approaches after the ASPs are finalized.
[[Page 104005]]
Response: The following information was added to the Rule: ``To
identify floodplain areas for the purpose of this section, the Corps
will use the best-available and actionable science including a climate-
informed science approach.'' The Army reiterates that effective
floodplain management and increasing resilience to flooding and storms
are important Guiding Principles of these ASPs and the PR&G. For a
discussion specific to the term ``unwise use of floodplains,'' see
Sec. 234.2(s) of this preamble. The Corps will review existing
guidance and provide updated guidance, where warranted, following
completion of the final rule.
Section 234.6(c)(3) Healthy and resilient ecosystems. The ASPs
reinforce the directive in WRDA 2007 to protect and restore ecosystem
functions and to minimize and mitigate those impacts if they cannot be
avoided. The rule states: ``Alternatives shall protect the existing
functions of ecosystems and may restore the health of damaged
ecosystems to a less degraded and more natural state where feasible . .
.'' Alternatives must include 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.
Some commenters suggested that the phrase ``may restore'' be
changed to ``shall restore,'' and others suggested removing ``where
feasible'' from the text. Commenters also recommended specific
approaches for how best to follow this Guiding Principle.
The Army solicited input on whether there are alternative forms to
measure ecosystem health such as specific assessment methods in
particular for the Corps' aquatic ecosystem restoration mission.
One commenter recommended quantification of multi-purpose benefits
and effects of nature-based solutions.
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. A Tribal Organization commented that the current baseline
may already be degraded by an existing project or as a cumulative
effect of a different Federal action and that this should be considered
when establishing the baseline conditions.
When determining the environmental baseline for new water resources
development investment decisions, the Corps does consider impacts by
existing projects or Federal actions.
Response: No changes were made to the final rule. Regarding ``may''
versus ``shall,'' the Army notes that, while aquatic ecosystem
restoration is one of the Corps' missions, not all studies are
authorized to restore damaged ecosystems. In some cases, imperative
language would put the ASPs at odds with congressional authority. On
the other hand, contingent language acknowledges potential
opportunities. Thus, the original language has been retained. The Corps
will review existing guidance and provide updated guidance, where
warranted, following completion of the final rule.
Section 234.6(c)(4) Public safety. The rule describes ``public
safety'' in terms of loss of life and injury. It calls for alternatives
to avoid, reduce, or mitigate significant risks to public safety.
The Army solicited comment on whether the description of the term
``public safety'' should be broadened and whether additional threats to
public safety should be included for consideration beyond those related
to natural events.
Several commenters responded. One suggested that life safety should
be recognized as a benefit of national security. Another commenter
indicated that public safety should include both drought and flood
resilience and stressed the role of water supply in ensuring public
health and safety. Some commenters suggested that improved life safety
be recognized as a benefit of many navigation projects. Another
commenter indicated that alternatives should consider any risk of harm
or injury to persons and property and should utilize qualified design
professionals to achieve these safety goals.
The Army solicited comment on whether life loss should be
monetized.
Some commenters supported monetizing loss of life, with one of
these commenters suggesting that the Corps consider the methodologies
used to determine the value of a statistical life presented in U.S.
Department of Transportation and Federal Emergency Management Agency
documents.
Response: No changes were made to the final rule. The Army will
consider additional factors in the discussion of public safety through
future updates to planning and engineering guidance. However, the Army
does not believe that changes to the rule are required to address these
factors.
The Corps includes an analysis of the risk to life safety in its
flood and coastal storm risk management studies and in its dam safety
modification studies. The Corps generally considers this risk in
assessing costs and benefits and in formulating potential solutions.
The Corps will review existing guidance and provide updated guidance,
where warranted, following completion of the final rule, to include a
review of Department of Transportation and Federal Emergency Management
Agency approaches.
Section 234.6(c)(5) Sustainable economic development. The term
``sustainable'' is defined in the rule at Sec. 234.2(p). The
sustainable economic development Guiding Principle in the P&R states,
``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 . . .''
Numerous commenters expressed support for the Guiding Principle of
sustainable economic development. Commentors suggested that a set of
quantitative and qualitative metrics and/or methodologies be developed
for measuring sustainable development. Another commenter argued that
the goal of sustainable development should be not just for humans and
nature to coexist but to thrive. This commenter requested that the
definition of sustainable development be strengthened accordingly.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule. The need for metrics and
methodologies will be a specific area of review. The Guiding Principle
of sustainable economic development is defined in the P&R. The Army
reiterates the importance of this Guiding Principle.
Section 234.6(c)(6) Watershed approach. The term ``watershed'' is
defined in the rule at Sec. 234.2(s). When developing alternatives,
the water resources problem being addressed should be analyzed on a
watershed-based level to facilitate inclusion of a complete range of
solutions, after considering the breadth of impacts across the
watershed.
The Army received multiple comments on the Guiding Principle of
taking a watershed approach in the planning process. The majority of
commenters expressed support for this principle. Some commenters
offered suggestions for how best to implement this Guiding Principle.
Some commenters worried that the watershed approach Guiding Principle
effectively mandates a minimum scope (comprehensive, multipurpose
watershed analysis) and geographic
[[Page 104006]]
scale for all Corps studies, increasing study costs and complexity.
The Army solicited comment on example frameworks, tools, and
methods for implementing a watershed approach, such as whether the
Department of Energy's Basin-Scale Opportunity Assessment methodology
could be adapted for use under the ASPs.
Response: No changes were made to the final rule. The Army
reiterates the importance of this Guiding Principle in the PR&G. As a
Guiding Principle, the watershed approach does not mandate specific
study methodologies or outcomes. The approach does not require all
studies to conduct robust and detailed watershed analyses at any
specific scope or scale, or require a multipurpose or comprehensive
watershed analysis; rather, it acknowledges that watersheds are complex
systems and that water resources management entails identifying and
addressing systemically interdependent problems. A watershed approach
encourages Corps planning teams to maintain awareness of watersheds as
systemic units. The Corps will review existing guidance and provide
updated guidance, where warranted, following completion of the final
rule.
Section 234.6(d) Collaboration.
Section 234.6(d)(1). This 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 Corps will seek to collaborate
fully with a wide range of affected entities, stakeholders, and the
public in all stages of the planning process. The Corps will 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, analyses, and requirements needed for
the planning decision and maximizing opportunities to avoid and
minimize impacts to the human environment to the extent practicable.
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 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.
Section 234.6(d)(1) also makes clear that enhanced collaboration
does 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 result in a greater
understanding of the Tribal Nations' needs than what may be achieved in
consultation. Tribal Nations may serve as Cooperating Agencies under
the NEPA process, contributing their expertise on environmental issues.
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.
Multiple comments supported the intent of this section to enhance
collaboration to ensure transparency, promote public participation, and
have full collaboration with a wide range of affected Tribal, State,
and local governments, non-governmental stakeholders, communities, and
the general public. A significant number of letters were received
requesting that the rule retain provisions that require the Corps to
fully engage with local interests, stakeholders, and Tribal Nations.
These letters also recommended that the Corps vigorously assess the
impacts of climate change during project planning.
One comment received through Nation-to-Nation consultation on the
rule emphasized the importance of early and robust Government-to-
Government consultation, not just collaboration, with Tribal Nations,
and that consultation, both at the initial stage of formulating
alternatives and following more detailed analysis of alternatives, is
critical to identifying Tribal treaty rights and water rights that may
be impacted by a potential water resources development project. The
comment also stated that details regarding the timing and notification
of Tribal partners would be helpful guidance to include in the rule.
Another comment from a Tribal Organization representing seven Tribal
Nations expressed concern that the Corps will not follow the extensive
requirements to consult and collaborate as prescribed in the ASPs.
One commenter expressed concern over Indigenous communities being
informed of any changes that could be made on potentially sacred lands.
Response: In response to comments received, the rule was revised.
The Corps acknowledges the unique relationship with Tribal governments
and is committed to meeting its Federal trust responsibility in
accordance with the Corps' Civil Works Tribal Consultation Policy. The
rule was amended in Sec. 234.6(d)(1) to acknowledge that robust, early
collaboration with Tribes is in addition to the requirement to conduct
early, meaningful, and robust Government-to-Government consultation
with Tribal Nations.
Section 234.6(d)(2). Although this paragraph recognizes that tools
and levels of engagement will vary based on a variety of factors, the
section requires use of best practices of engagement, such as the
spectrum of engagement from the International Association for Public
Participation and modifications from various U.S. government agencies,
including the Corps. 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 Sec.
234.6(c)(1) of the rule and the discussion of Sec. 234.6(c)(1) in the
preamble for other considerations in engaging communities with
environmental justice concerns.
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 either
formal or informal public participation processes, 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. Following the ASPs 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 to implement.
Enhanced collaboration also helps to ensure transparency, promote
Tribal and public participation, and assist in
[[Page 104007]]
developing community-driven solutions to water resources problems. The
Corps would ensure that the collaboration includes opportunities for
engaged participants to assess the effectiveness 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.
Multiple commenters expressed strong support for robust
collaboration and enhanced transparency in the planning process, with
many offering suggestions for implementation. One comment suggested
incorporating more specific and explicit engagement requirements
throughout the regulation, including that the Corps should bring to the
table all relevant State agencies at key points in the planning
process. Another comment recommended that the rule direct planners to
establish a collaboration and public engagement plan prior to
initiation of the formal scoping phase and to modify the plan as needed
to improve collaboration throughout the planning process. Other
comments suggested the Corps identify and perform outreach to a wide
variety of organizations and informal groups, and that the Corps should
be required to hold meetings with stakeholders at various stages of the
planning process or invest in dedicated staff members for community
engagement. Comments requested more details on, and made
recommendations for, achieving robust collaboration throughout the
planning process and developing a formal approach for community
engagement in decision-making.
Response: The Army made minor edits to this section of the Rule for
clarity. The Army appreciates the supportive comments on this section.
The Corps will review existing guidance and provide updated guidance,
where warranted, following completion of the rule. This may include
additional details on public engagement tools, techniques, and the use
of information from local sources.
Section 234.6(e) Investigations and data collection. This section
discusses investigations and data collection, which should be ongoing
and integrated early in planning process. However, additional
investigations should be performed as necessary. The 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.
Federally recognized Tribes indicated support for the inclusion of
environmental considerations as discussed in the rule and noted that
cultural impacts must also be considered. Additionally, one Tribal
Nation commented that the rule should identify impacts on historic
properties and traditional cultural properties, requesting that the
planning process described in Sec. 234.6 identify the need to comply
with the National Historic Preservation Act and Native American Graves
Protection and Repatriation Act in water resources planning and the
operation of existing projects.
Another comment urged that local and regional technical and
scientific data be included in the study when that data is available
and more specific than Federal data.
Response: No changes were made to the final rule. The Army concurs
that impacts on cultural resources and practices will be identified in
the planning process for water resources development investment
decisions. The Corps must comply with existing Federal laws and
regulations, such as the National Historic Preservation Act and Native
American Graves Protection and Repatriation Act, as well as treaties
with Tribal Nations.
Section 234.6(f) Identify purpose, problems, needs, and
opportunities. This section sets out the requirements for framing the
investigation of Federal water resources investments. The section also
sets expectations for early collaboration with Tribal Nations and
stakeholders (also see Sec. 234.6(d)). The Corps would begin with a
clear statement of the water resources challenges, including the
problems and opportunities to be addressed. The causes of the problems
should be identified, as well as any planning objectives, constraints,
and the relationship of the problems to the missions, statutory
authorities, and other requirements of the Corps. A watershed-based or
systems approach should generally be applied when defining the scope of
a water resources challenge.
The scope of any study should be broad enough to cover the full
range of reasonable alternatives while avoiding an unwieldy 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 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 in the study process.
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 NEPA; however, the scoping
process for a Corps study may be different than what is required under
NEPA scoping. To most fully integrate the PR&G and NEPA processes at
the earliest stages, the Corps should describe and request public input
on the study purpose, problems, needs and opportunities in the Notice
of Intent to prepare an Environmental Impact Statement.
The Corps would seek to align the study scoping for a project and
NEPA scoping to the extent practicable. As implementation of NEPA and
the PR&G should be fully integrated, the identification of problems,
needs, and opportunities apply to both applications and can be
accomplished in study scoping. Typically, more background information
is available when NEPA scoping is conducted. Corps study teams may not
have all the information that is identified in this section of the rule
during the initial development of the project management plan. For
example, finalizing the 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 Army solicited 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. The Army also solicited
comment on whether there may 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.
Several comments were received on this topic. One commenter
suggested that study goals and objectives should align with the Federal
Objective. Another commenter asked for this section of the rule to
spell out specifically how the Guiding Principles would guide and
constrain the planning process. One comment letter suggested that the
Corps explain how individual study objectives comply with the Federal
Objective established in WRDA 2007. Another stated that objectives
should be broadly framed to avoid the
[[Page 104008]]
pre-selection of recommended alternatives and to avoid locking in
structural approaches. Another letter encouraged early collaboration to
reach agreement on problems to be addressed in a study. One Tribal
letter expressed the need to establish study problems, needs, and
objectives following consultation with Tribal Nations to better
understand Tribal treaty rights. Another comment suggested the rule
more clearly describe how social and environmental justice will be
considered in the selection of the project study area.
Response: A typographic correction was made to the numbering of
this subsection. Additional edits were made to this section of the Rule
for clarity. Planning objectives will be developed with input from
stakeholders, including consultation with Tribes, and framed in such a
manner that they do not prescribe a particular solution. The Guiding
Principles are neither procedural mandates nor hard constraints; they
are overarching policy polestars. The Corps will review existing
guidance and provide updated guidance, where warranted, following
completion of the final rule. Future planning guidance may provide
additional details regarding the development of planning objectives,
problems, needs, and opportunities.
Section 234.6(g) Inventory existing resources and forecast future
conditions. To determine baselines, the Corps will identify the
existing conditions and the baseline levels 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-project
conditions'' and the future ``without-project conditions.'' The
inventory and forecast provide information for understanding existing
conditions and for establishing a baseline for forecasting ``with-
project conditions'' and ``without-project conditions.'' The existing
conditions and forecast provide a basis for comparing the effects of
alternative water resources investments. These forecasts help define
the problems, needs and opportunities that the study will address in
the subsequent steps.
The existing and forecasted future conditions will include
descriptions of the economic, environmental, and social settings within
the study area. The Corps will consider future climate change and
economic development and land use change scenarios. A watershed
approach should also be used in describing current and future
conditions.
The Corps will use peer-reviewed (where possible and appropriate)
and reasonable projections. 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, consistent with memoranda and Executive Orders on the
recognition and inclusion of Indigenous Knowledge. The conditions would
be described as appropriate and applicable to the specific investment,
with consideration for the Guiding Principles of the P&R. 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.
The forecast of future conditions is comparable to the NEPA
identification of future impacts associated with the proposed
alternatives. Such comparisons will also be conducted with the No
Action alternative. Any key assumptions made for forecasting future
conditions will be disclosed.
The terms ``without-project condition'' and ``with-project
condition'' 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. 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 Corps will use the scenario analysis and
discussions on extreme weather events to inform how alternatives may
perform under future conditions with respect to climate resilience.
Scenario analyses may help to evaluate other sources of uncertainty
beyond those associated with extreme weather or climate conditions.
Reasonably foreseeable actions by public and private entities
should be included to understand how key resources and services may
change in the future, and 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. Characterization of uncertainty should be quantitative,
when feasible, and qualitative when not, and should provide a
commensurate level of detail to the analysis. Residual risk that is not
proposed to be, or cannot be, addressed or mitigated should be
disclosed to aid in the decision-making process. Where the effects of
climate variability and climate change are relevant to the investment
decision, the study should fully describe the key sources of
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
proposed further investment by the Corps in a project, action, or
program. The Corps typically uses a 50-year timeframe for the period of
analysis (see Engineer Regulation 1105-2-103 \6\ paragraph 2-4b(4)).
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. Climate change would need to be
considered in both the future ``without-project condition'' and the
future ``with-project condition.'' Projections of future conditions
would account for expected environmental, social, and economic changes,
including those that result from climate variability and climate
change, particularly for projects with relatively long service or
operational lives, as these projects may be subject to additional
climate variability and change.
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\6\ See <a href="https://www.publications.usace.army.mil/Portals/76/ER%201105-2-103_7Nov2023.pdf">https://www.publications.usace.army.mil/Portals/76/ER%201105-2-103_7Nov2023.pdf</a>. Last accessed May 21, 2024.
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A summary of the process used to identify the existing and future
conditions for the administrative record ensures that appropriate
considerations were incorporated and provides transparency in the
process. 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 solicited comment on
what the standard period of analysis should be when the Corps
implements the PR&G.
The Corps received several comments indicating that the period of
analysis should not be limited to 50 years. Two commenters indicated
that the period of evaluation should be extended to 100
[[Page 104009]]
years. One commenter indicated that the design analysis of structures
should reflect their actual use life rather than being limited to 50
years, and instead use an ``adaptive adaptation'' approach rather than
planning for a time horizon and then rebuilding when the infrastructure
is obsolete. Another commenter recommended that the final rule include
new text clarifying the period of analysis regarding project lifespan
and the cumulative effects of Federal projects. In particular, they
noted that a shorter period of analysis may not account for sea level
rise impacts. Another commenter stated that certain Corps projects have
conflated existing conditions with the future ``without-project
conditions,'' and requested that the rule specify parameters for the
future ``without-project conditions.'' One comment was received
suggesting that when forecasting future conditions, the Corps should
also include scenarios for extreme weather events to determine
sensitivity to a range of conditions, such as drought or hurricanes.
The Corps also received a comment that the analysis consider future
conditions that are plausible and result in a high risk of failure.
Response: The Army made minor edits to this section of the Rule for
clarity. The Army concurs that a period of evaluation longer than 50
years may be appropriate in some instances. The Corps may issue
additional guidance on how the period of analysis will be determined
and used in studies. As described above, in standard Corps analyses,
future ``without-project conditions'' include what is expected to
occur, over the period of analysis, in the absence of a proposed
further investment by the Corps in a project, action, or program. The
Corps will review existing guidance and provide updated guidance, where
warranted, following completion of the final rule.
Section 234.6(h) Formulate alternatives. The paragraph establishes
the framework for developing a full range of alternatives that will
address the water resources problem and sets the evaluation criteria of
acceptability, efficiency, effectiveness, and completeness.
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 an environmentally preferred alternative.
Nonstructural measures and nature-based solutions are important
considerations of the PR&G and should be integrated into alternatives
for Federal water resources investments wherever appropriate. As with
structural solutions, considerations should be made for technical
feasibility, land use, cost, past performance, and longevity. In
addition, the rule requires the Corps to include an environmentally
preferred alternative in the final array of alternatives, which is
consistent with the current Corps' planning process as well as
consistent with NEPA.
The Corps will formulate the alternative plans in a systematic
manner that ensures that it has identified and considered the full
range of reasonable alternatives. The studies will evaluate
alternatives based on the most likely future conditions. The
alternatives should seek to address the water resources challenge,
problem, or need identified in Sec. 234.6(f), achieve the planning
objectives of the study and the Federal Objective, and follow the
Guiding Principles. Alternatives should reflect potential solutions
that are feasible. The range of alternatives provides a framework for
comparing the relative effectiveness and efficiency of the alternatives
in achieving economic, environmental, and social goals.
In addition, as noted in Sec. 234.6(e), the same period of
analysis should be used in alternatives analysis. The period of
analysis selected can bias selection of one option or another. A
shorter analysis period would benefit alternatives with fewer 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.
When an alternative is beyond the Corps missions, such an
alternative may be carried forward for further analysis where it
provides solutions to the identified problem, meets the identified
economic, environmental and social goals, and appropriate funding is
available or may be made 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, action, or program and appropriate
sequencing of implementation. Any recommendations for authorization
should clearly and specifically delineate the Federal water resources
project being recommended for Corps authorization, and any condition
precedent for construction. The rule provides that for Corps
investments, the Corps would be the designated lead for completing the
PR&G analysis.
The Army solicited 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.
Several comment letters were received that supported no limitations
on alternatives when identifying effective water resources solutions.
Another comment letter was received which suggested that in no case
should a sponsor or non-Federal interest be asked to support water
resources investments that include increments that do not meet their
objectives or are beyond their capabilities.
Additional comment letters were received regarding the treatment of
alternative solutions, incremental analysis of separable elements and
any additional costs to meet investment objectives. Specifically,
comments were received indicating that the Corps should establish clear
principles on how separable elements and investment increments will be
considered within the budget formulation process. One recommended
identification and evaluation of all investment increments and
separable elements to achieve efficient and effective investment
outcomes, to illuminate the value and impact of each project component.
Response: The Army made minor edits to this section of the Rule for
clarity. The Corps will review existing guidance and provide updated
guidance needs, where warranted, following completion of the final
rule. Specifically, the Corps will review guidance regarding the
development of alternatives and treatment of separable elements.
Section 234.6(h)(1). In this paragraph, the screening of
alternatives in a systematic manner is discussed. An initial set of
alternatives would be refined for reasons such as having excessive cost
or unavoidable impacts, not sufficiently addressing the problem or
opportunity, or 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, as well as the reasons for their elimination. The remaining
alternatives are considered the reasonable range of alternatives to be
[[Page 104010]]
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 should describe not just the economic, environmental, and
social conditions and benefits, but also impacts. Alternatives should
also describe any potential institutional barriers that the Corps or
others would have to address or overcome to implement the alternative,
including Federal, State, or local statutory or regulatory
requirements, and current policies. Transparency and full consideration
of economic, environmental, and social effects, both quantifiable and
non-quantifiable, must be provided for each alternative. Descriptions
of the social, environmental, and economic impacts of not investing, or
underinvesting, in any Tribal or disadvantaged community, under the
future ``without-project condition'' and the No Action alternative,
should be included. 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
will be included in the NEPA document. As discussed previously in Sec.
234.6(f) of the preamble, the Corps will work to integrate the PR&G
analysis with NEPA to the extent practicable.
Response: The Rule was modified to clarify that the Corps will
identify and consider a full range of reasonable alternatives.
Section 234.7 Evaluation framework.
Section 234.7(a) The ASPs provide a common framework and general
requirements for the Corps to use in evaluating full consideration of
social, environmental, and economic benefits and costs of any separable
elements and potential alternatives for Federal investment. This will
include their performance with respect to the Guiding Principles, and
their contributions to the Federal Objective.
Response: The Army made changes to the Rule for clarity. The Rule
was updated to stress the need to fully consider all attributes when
evaluating separable elements and alternatives. The Army added the word
``clearly'' for emphasis.
Section 234.7(b) Economic, environmental, and social effects. The
Corps will identify and evaluate the economic, environmental, and
social effects across alternatives. Such effects comprise the full
range of relevant public benefits potentially provided by Corps
projects.
Many commenters supported evaluation of the economic,
environmental, and social effects in the Corps planning process. Some
commenters wanted to see stronger language emphasizing that the three
categories of effects would be balanced and nonhierarchical between
each other, and that the three categories would be equally considered.
Multiple commenters wished to see methodologies detailed in this
paragraph. For example, one commenter requested more specifics on how
the Corps would account for the social, environmental, and economic
impacts of chronic underinvesting in communities, especially
disadvantaged communities, during the planning process, while another
wanted to know how the Corps would incorporate evaluation of ecosystem
services, and yet another wished to see inclusion of cost-effectiveness
and reasonable cost as key approaches for evaluating environmental
effects. One organization recommended adding language clarifying that
the Corps must account for the value of ecosystem services lost as a
project cost, and account for the value of ecosystem services gained as
a project benefit.
One commenter discussed discount rates and OMB Circulars A-4 and A-
94 in the context of this section. Another commenter discussed the
similarities between this Section and OMB Circulars A-4 and A-94 and
suggested that this section simply reference the OMB Circulars. See
preamble Sec. 234.9(c) for the Army's response to comments on this
topic.
Another commenter proposed adding a new paragraph to Sec. 234.7,
identifying biodiversity as a priority of alternative plans.
The Army solicited comment on specific tools and methodologies that
commenters wished to recommend for quantifying or monetizing economic,
environmental, and social effects. Multiple such recommendations were
received. Additional recommendations were received regarding
qualitative and non-monetary evaluation approaches. Some commenters
wished to see an explicit constraint on prioritizing any type of data
(quantitative vs. qualitative, monetized vs. non-monetized) over any
other. One commenter mentioned that monetization should follow sound
economic principles and practices.
Response: The Army edited the rule for clarity: ``Relevant
monetary, quantitative, and descriptive information will be fully
assessed and considered in the analysis.'' It is important to include
relevant monetary, quantitative, and qualitative descriptive
information in this section. The Army acknowledges the importance of
biodiversity as an index of ecosystem health. The Corps already
evaluates biodiversity in its studies; future guidance will describe
any changes to biodiversity evaluation in the planning process, as
appropriate. The Corps will review existing guidance and provide
updated guidance, where warranted, following completion of the final
rule. This may include how the Corps will identify, collect, assess,
and consider relevant data of all types.
Section 234.7(c) Best available actionable science and commensurate
level of detail. This section of the rule specifies that to support the
evaluation of alternatives, the analysis should use the best available
actionable science, Indigenous Knowledge, data, techniques, procedures,
models, and tools across a wide variety of pertinent subjects.
Regarding data used for planning studies, one comment letter found
the terms ``actionable science'' and ``best available science'' to be
confusing. One commenter recommended including in the rule a commitment
to use a specific sea level rise scenario adopted by an interagency
task force. Another comment letter conveyed that the Corps should
ensure that data utilized in planning studies should meet multiple
objectives by producing it in a transferable, accessible, multi-use
format at a high enough resolution for use by others beyond the
planning context. An additional letter was received commenting on the
capabilities that non-Federal interests contribute to water resources
investigations, and how this should allow for the use of local or
region-specific analysis. One commenter suggested inclusion of ``other
place-based knowledge'' in addition to Indigenous Knowledge. One Tribal
Nation letter supported the inclusion of environmental considerations
as discussed in 89 FR 10266 and said that cultural impacts must also be
considered in evaluations.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
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 feasible. This section explicitly calls
for consideration of the costs and benefits of reducing risks and
uncertainties.
[[Page 104011]]
For project planning purposes, the ``risk'' of an adverse outcome
reflects two factors--the probability that an adverse outcome will
occur; and its consequences if it were to occur. The term
``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 in Sec. 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 readily understandable by the public. In
some instances, reducing risks and uncertainties may result in
increased costs, and the advantages of doing so in informing decision-
making should be weighed against those additional costs. The Corps
practices risk-informed decision-making (see Planning Manual Part II:
Risk-Informed Planning).\7\
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\7\ See <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 May 21, 2024.
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The Army solicited comment on risk-informed frameworks to
supplement or improve the current risk-informed planning process.
Multiple commenters stated that all risk-informed planning should
conform to OMB Circular A-4 and that the Corps should make risk-
informed decision-making apply to levee safety consistent with Circular
A-4, and refrain from unconventional notions, such as tolerable risk,
which are no more than expressions of the risk preferences of the
agency or analysts within the agency. Another commenter indicated that
the Corps needs to clearly and specifically articulate, in this rule
and elsewhere, what the term ``risk-informed decision-making'' is, how
it is to be applied, and under what statutory authorities.
Response: OMB Circular A-4 covers regulatory actions, which are
beyond the scope of the ASPs. The Corps may follow OMB Circular A-4,
where applicable. The Corps consolidated the discussion of risk and
uncertainty in one place in the final rule. Therefore, the final rule
no longer includes Sec. 234.10(d); and some of the language proposed
in that subsection has moved to Sec. 234.7(d). The Corps also has
revised Sec. 234.7(d) to include language on providing an estimate in
the study of the extent to which the uncertainty may change over time.
The Corps will review existing guidance and provide updated guidance,
where warranted, following completion of the final rule. That review
will encompass risk-informed decision-making as well as levee safety
guidance and practice.
Section 234.7(e) Adaptive management. Adaptive management is
defined under this rule in Sec. 234.2(b). Adaptive management is
highlighted as a tool to help reduce or manage uncertainties. The rule
calls for adaptive management measures to be clearly identified and
evaluated as part of the alternatives. Adaptive management should be
considered throughout the process and should be employed as soon as
triggers are identified which necessitate such measures. Post-
construction adaptive management measures to address unforeseen
conditions or impacts of the project should also be included in Corps
recommendations for project authorization.
No comments were received on this section.
Response: No changes were made to the final rule.
Section 234.7(f) and (g) Climate change and water availability,
water use, and resilience. These paragraphs require consideration of
climate change, water availability, water use, and drought and flood
resilience in all aspects of the planning process.
The Army received multiple comments supporting this requirement.
Many commenters stressed the importance of both climate change and
drought resilience and water supply to the health of ecosystems and
communities. Some comments recommended specific methods, approaches, or
data sources to meet the requirements described in the rule. One
comment recommended that a framework be developed that establishes
processes and procedures for using inland climate change in the
evaluation, design, authorization, and construction of flood risk
reduction facilities. One commenter stated that it would be difficult
to reassess climate change if it was not evaluated during the planning
stage. Another commenter stressed the importance of considering
nonstationarity for drought resilience and water supply projects as
well as flood risk management studies. One organization sought the
inclusion of the consideration of multiple flood risks when conducting
investigations.
One commenter asserted that there may be a contradiction between
maximizing economic outputs, and protecting and conserving the
environment. The commenter did not make specific recommendations to
change the rule.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
Section 234.7(h) Nonstructural and nature-based alternatives. This
paragraph further describes requirements to develop alternatives that
use nonstructural and nature-based solutions to address the water
resources problem. Nonstructural approaches are defined in Sec.
234.2(l) of the rule. The paragraph requires the consideration of
natural systems, ecosystem processes, and nature-based solutions.
Nonstructural and nature-based alternatives are to be developed with
the same rigor as other alternatives. A full nonstructural alternative
and a full nature-based solutions alternative will also be included in
the final array of alternatives, to the extent that such a solution
exists. In some cases, these may be one and the same. Nature-based
solutions should also be considered as components of other alternatives
in the final array, providing integrated or ``hybrid'' alternatives
with these other measures.
The Army received a comment on this section questioning the
inclusion of caveat language for these types of alternatives but not
including similar caveat language for structural alternatives. One
comment letter was received which expressed the opinion that natural
and nature-based solutions may not always be compatible as a remedy and
recommended that flexibility be allowed for each situation. The Army
received multiple comments suggesting that nonstructural and nature-
based alternatives be prioritized, by default, over other alternatives
in the formulation and consideration of alternative plans. The Army
received comment that nature-based solutions may reduce overall costs
and offer more benefits than static-built infrastructure.
Response: The rule text was changed to remove the caveat language.
The Army disagrees with the prioritization of various alternatives
because they would be inconsistent with a requisite standard of rigor
in the evaluation and comparison of potential solutions to water
resources problems. In addition, the PR&G note that nonstructural
approaches must be given full and equal consideration in the decision-
making process. Establishing a higher priority for certain alternatives
would contradict the concept of equal consideration. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
[[Page 104012]]
Section 234.7(i) Tribal treaty rights. This paragraph provides that
each of the alternatives considered for a water resources investment
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 evaluation of
alternatives. The Corps will ensure consistency with the ``Memorandum
of Understanding Regarding Interagency Coordination and Collaboration
for the Protection of Tribal Treaty Rights and Reserved Rights'' \8\
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
alternative, the Corps will disclose such details. 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.'' \9\
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\8\ See <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 May 21, 2024.
\9\ See <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 May 21, 2024.
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Several commenters supported the inclusion of evaluating Tribal
treaty and reserved rights during scoping and throughout the
alternatives development and evaluation process in Sec. 234.7(i) of
the rule. One public comment suggests consideration of Tribal treaty
rights and other environmental justice impacts to ensure that Corps
investments appropriately address the needs of historically
underrepresented stakeholders and potential uncertainties that may
threaten the viability of a project alternative. A Tribal Organization
and a Federally recognized Tribe commented that only Congress may
abrogate or interfere with Tribal treaty rights, and that the Corps may
not recommend a water resources development project that violates
Tribal treaty rights. Further, the Federally recognized Tribe
recommends that evaluation of Tribal treaty rights starts as a
threshold inquiry, not to be deferred to the evaluation phase, as any
alternative that violates Tribal treaty rights is not a viable
alternative and should be eliminated as soon as it is identified. One
comment from a Tribal Nation acknowledges that in some cases the full
extent of impacts to Tribal treaty rights and water rights may not be
known until detailed environmental analysis is completed and recommends
that impacts to Tribal treaty rights continue to be evaluated at each
stage of the project planning process. The comment continues, stating
if the Corps determines in consultation with a Tribal Nation that an
alternative does not interfere with Tribal treaty or water rights, the
Corps must then take affirmative steps to protect and advance Tribal
interests throughout the remainder of the planning process, as required
by its trust responsibility to Tribal Nations through consultation.
Response: Section 234.7(i) was updated to remove reference to ``an
otherwise viable alternative'' when identifying impacts to Tribal
treaty and water rights. The Army agrees that unless Congress provides
explicit authority, the agency does not have authority to recommend
projects that interfere with Tribal treaty rights. The Army also
concurs that this analysis must be done at the earliest phases and
iteratively through the plan formulation and evaluation process.
Additional edits in Sec. 234.6(d) of the rule added emphasis on the
requirement to conduct Nation-to-Nation consultation in addition to the
robust, early collaboration with Tribal Nations, which will be
paramount in the development of implementing guidance for the PR&G.
Another comment states while Tribal treaty rights should be
considered in the analysis, it would be inappropriate for the Corps to
determine any treaty or reserved rights that may be in dispute, that
Federal agencies are not the appropriate arbitrators of these rights,
and this determination is beyond the Corps' expertise and authority.
Response: Treaties are between the Federal Government and Federally
recognized Tribes. The Corps is required to consult with Tribal Nations
on potential impacts on Tribal treaty rights through Nation-to-Nation
consultation, as treaties are ``not a grant of rights to the Indians,
but a grant of rights from them, a reservation of those not granted''
(United States v. Winans, 198 U.S. 371, 381 (1905)). While the Corps
does not get involved in water rights or treaty rights determinations
unless it is a part of developing a water resources project, the Corps
does have relevant expertise developed through implementation of its
statutory authorities and in fulfilling the Federal trust
responsibility.
One comment recommends that this evaluation of Tribal treaty rights
follow the Department of the Army permitting context to balance the
broad range of public and private interest factors and weigh the cost
and benefits of a proposed activity (33 CFR 320.4). Lastly, one comment
recommended revisions to the existing Missouri River operations to
comply with the treaty provisions in Sec. 234.7(i).
Response: When planning a future water resources investment, the
Corps is engaged at each stage of the process--from the initial
scoping, through project formulation and evaluation, and ultimately to
the recommendation of a water resources investment. In comparison to
the Department of the Army permitting context, the project planning
process provides multiple opportunities to identify and screen out
alternatives that may adversely impact Tribal treaty rights. The Corps
will review existing guidance and provide updated guidance, where
warranted, following completion of the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the rule to include an evaluation of guidance
related to the Tribal Treaty Rights Effects Determination process.
Section 234.7(j) and (k) State water law and international
obligations. These 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. If any constraints within
that compliance require an otherwise viable alternative to not be
carried forward, then the Corps would disclose those details.
A commenter suggested that a similar statement be added requiring
compliance with Federal environmental laws. Another commented that the
procedures should require deference to State and local preferences on
trade-offs. A commenter noted that a set of statutes broader than
``state water laws'' may apply to Corps projects and recommended
broadening the language to acknowledge all applicable State laws.
Another commenter stated the rule must be revised to give deference to
State water allocation decisions.
Response: Section 234.7(j) of the rule was modified to broaden the
applicability of State laws. Compliance with applicable Federal law is
a required baseline. These paragraphs acknowledge the diversity of
State laws and international obligations, and explicitly establish a
requirement to comply with all applicable such laws.
The Army has not included language in the rule to give deference to
State water allocations. The Water Supply Act of 1958 (Title III of
Pub. L. 85-500) recognizes the primary responsibilities of the States
and local interests in
[[Page 104013]]
developing water supplies. The Army does not allocate water but
allocates the storage space within its reservoirs.
Section 234.7(l) Period of Analysis. This paragraph complements the
preamble discussion of Sec. 234.6(g) of the rule regarding the period
of analysis and review of alternatives. The period of analysis selected
will be documented with appropriate supporting information. The same
timeframe would be used across all alternative evaluations. The Corps
has typically used a 50-year timeframe for the period of analysis (see
Engineer Regulation 1105-2-103 paragraph 2-4b). The Corps recognizes
the importance of consistency and comparability within a given study in
evaluating the alternatives. Under the final rule, the Corps would
determine the period of analysis for each study to reflect a time frame
that will sufficiently capture all important effects of each of the
alternatives.
The Army solicited comment on whether there should be an upper
limit established for the period of analysis. The Army also solicited
comment on whether the Corps' current timeframe is the appropriate
period of analysis for implementing the Corps' projects. Further, the
Army solicited comment on whether the period of analysis should be
longer given that some benefits could accrue over timescales beyond 50
years. To round out the period of analysis considerations the Army
solicited comment on whether the period of analysis should vary based
upon the mission area and the particular purpose and need of the
proposed investment.
The Corps received three comments addressing the period of
analysis. Two commenters indicated that the period of evaluation should
be extended to 100 years. Another indicated that the design analysis of
structures should reflect their actual use life rather than being
limited to 50 years, and instead use an ``adaptive adaptation''
approach rather than planning for a time horizon and then rebuilding
when the infrastructure is obsolete. Another commenter recommended that
the final rule include new text clarifying the period of analysis,
including regarding project lifespan and the cumulative effects of
Federal projects. In particular, the commenter noted that a shorter
period of analysis may not account for sea level rise impacts.
Response: The Army changed the name of this subsection from
``Timing'' to ``Period of Analysis'' and made additional edits for
clarity. As previously discussed within the Preamble for Sec.
234.6(g), the Army concurs that a period of evaluation longer than 50
years may be appropriate in some instances. The Corps will review
existing guidance and provide updated guidance relative to the period
of analysis for investigations, where warranted, following completion
of the final rule.
Section 234.8 Final array of alternatives. This paragraph outlines
the final array of alternatives to address the problem that would be
identified and subject to analysis and consideration. The rule requires
the Corps to include six 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 seeks to maximize net public
benefits, and a locally-preferred alternative. A single alternative
might satisfy more than one category, such as a nature-based
alternative that is also the net public benefits alternative. There may
be cases where there are two or more alternatives in a category that
will be considered as part of the final array of alternatives. All
alternatives in the final array must be developed using a comparable
level of rigor and detail.
The Army received public comments about locally preferred
alternatives. One commenter noted that impacted communities should have
meaningful and informed input regarding the identification of the
locally preferred alternative. Another emphasized the need for analysis
to help justify a locally preferred plan as a Federal plan, while
another mentioned a need to consider the locally preferred plan in a
revised definition of non-Federal interest. Another commenter requested
clarity on cost allocation among project purposes and the corresponding
cost sharing.
A number of letters were received regarding the treatment of
alternatives. One comment identified conflicting statements regarding
the requirements to include nonstructural approaches. Another commenter
recommended that if any of the required alternatives is not included in
the final array, the analysis will need to fully justify that decision.
One comment letter suggested that the Corps consider alternatives
outside of its authorities if they could maximize net public benefits.
Another commenter suggested alternatives be described based on method
rather than have alternatives that are based on achieving an objective.
Another comment requested that any caveats associated with
consideration of alternative plans be removed to force creative
thinking about nonstructural and natural and nature-based solutions.
One comment letter suggested consideration of natural and nature-based
solutions over all other measures; whereas another letter suggested
priority for structural measures in certain applications. One comment
letter went further, requesting future guidance clearly identify
procedural and methodology requirements to include nonstructural and
natural and nature-based solutions. A commenter suggested that the
Corps has the discretion to modify the identification of the nature-
based solution alternative based on project-specific considerations of
local conditions. One commenter indicated that a fully nature-based
alternative may limit efforts to identify an implementable nature-based
alternative and that nature-based solutions could include structural
and non-structural features. One comment recommended that the non-
Federal interest be fully involved in determining the final array of
alternatives, especially to ensure that they can fulfill any associated
requirements for lands, cost-share, and maintenance activities. Another
commenter recommended that Sec. 234.8 be accompanied by standard
guidance and case studies that exemplify the use of innovative and
diverse tools and methods for comprehensive evaluation of economic,
social, and environmental benefits. Another commenter indicated that
the discussion on the final array of alternatives should be revised to
reflect the fact that the final array will include the primary purpose
of the analysis and the Federal Objective.
Response: Changes were made to the rule to acknowledge that if one
or more of the required alternatives is not included because the Corps
was not able to identify a potential solution that is feasible and
would be effective, the study must document that decision. The Corps
will review existing guidance and provide updated guidance, including
procedural requirements and methodology considerations for determining
the final array of alternatives, where warranted, following completion
of the final rule. The Corps will consider the use of case studies to
help illustrate examples of the types of alternatives required to be
presented in the final array of alternatives.
For the locally preferred alternatives, all costs above the
identified alternative that maximizes net public benefits would be a
100 percent non-Federal cost. Additional policies and procedures for
recommending locally preferred alternatives will be covered in future
implementing guidance.
Section 234.9 Evaluate effects of alternatives.
Section 234.9(a) and (b). These sections establish the general
framework
[[Page 104014]]
for the analysis of the effects of the final array of alternatives. The
analysis must evaluate how each alternative's benefits compare to its
costs, how the alternatives perform with respect to the PR&G's Guiding
Principles, how they perform against the objectives of the study, and
how they perform against the prescribed formulation criteria of
completeness, effectiveness, efficiency, and acceptability. In doing
so, the final array of alternatives will be assessed in a manner to
best inform decision-making. The objectives of the study should be
related to, or stem from, the identified water resources problem or
opportunity, and must be clear and focused so that they can be used to
evaluate alternatives.
The Army received several comments that recommended including in
the rule language from the Interagency Guidelines stating that there is
no hierarchy among economic and environmental goals. The Army also
received comments requesting that Tribal treaty rights evaluation be
acknowledged throughout the planning process in consultation with
Tribal Nations. One commenter supports aspects of this section and
recommends the ASPs should include a methodology framework and plan
selection criteria. Another commenter recommended that the Corps
evaluate alternatives for potential impacts on the status of Federal
jurisdiction for wetlands. Another comment suggested changing the text
of Sec. 234.9(b)(2) to evaluate each alternative against the study
objectives and the Federal Objective. One commenter noted that the Army
needs to clarify the benefits analysis process on how benefits will be
compared, leading to a clear and transparent path to project selection.
Another commenter provided suggestions for how best to evaluate
alternatives built around nature-based solutions. Another commenter
suggested that guidance be developed to ensure the Corps analyzes
multiple types of inundation risk in flood risk management studies.
Response: The Army modified the rule text to require full
consideration of economic, environmental, or social benefit categories
and to require the analysis for the final array of alternatives to
identify any impacts to Tribal treaty rights that were unknown earlier
in the planning process and which prevent the selection of an
alternative. The Corps will review existing guidance and provide
updated guidance relative to methodologies and criteria, where
warranted, following completion of the final rule. The Corps considers
jurisdictional status of wetlands during the planning process.
Section 234.9(c) Consideration of benefits and costs. This
paragraph establishes three categories to fully account for the costs
and benefits of an alternative and its contributions to the Federal
Objective: economic, environmental, and social.
The PR&G does not direct the Corps to develop ASPs that require the
selection of a particular alternative investment, but rather to
evaluate a range of alternatives. When evaluating an array of
alternatives, the Corps will keep in mind a number of key aspects, such
as economic, environmental, and social impacts, which are interrelated;
not all impacts can be monetized, and impacts described qualitatively
should be given full consideration; and there could be more than one
alternative that reasonably and approximately meets the Federal
Objective and seeks to maximize the public benefits relative to costs.
The paragraph reiterates that the costs and benefits should be
quantified and monetized to the extent practicable using a
scientifically valid and acceptable way. If qualitative applications
are used, they must be of sufficient detail to ensure the decision-
maker can make an informed decision understanding both the importance
and magnitude of potential changes.
This paragraph is the heart of the PR&G and encapsulates the
largest change in Corps decision-making and consideration of Federal
water resources investment alternatives. Rather than primarily focusing
on national economic development in the alternatives analysis, the ASPs
require economic, environmental, and social benefit categories to be
considered fully. Qualitative information can be used to further
contextualize their social relevance, but double-counting should be
avoided.
This paragraph calls for the current dollar value costs, along with
non-monetized measures and descriptions of benefits, to be measured
against the current dollar value benefits and non-monetized measures
and description of benefits of each alternative, and compared to the No
Action alternative. Future predicted cost and benefit value (monetized)
estimates will be discounted to present value terms for the analysis.
The evaluation of alternatives is part of the NEPA alternatives
analysis, in which the No Action alternative and Action alternatives
are described, evaluated, and compared.
The Army solicited comment on whether to eliminate the three
categories to simply account for all costs and benefits without further
categorization which may make it easier to avoid double-counting,
although noting that certain costs and benefits may not be as visible
if they are not specifically called out in a category.
Several commenters indicated that the Corps should use the three
categories. Some commenters mentioned the need for additional guidance,
and some recommended that future guidance discuss how non-monetary
outputs are weighed against monetary. Multiple commenters suggested
that the Corps continue to identify the national economic development
plan but should modernize it to reflect environmental and social
values.
Response: No changes were made to the final rule regarding the
three benefit categories. The Corps will review existing guidance and
provide updated guidance relative to benefit and cost methodologies,
where warranted, following completion of the final rule.
The Army solicited comment on the selection of discount rates and
consideration of whether declining discount rates should follow the
guidance in OMB Circulars A-4 and A-94.
The Army received multiple responses on this topic. Two commenters
expressed concern about the use of higher discount rates and their
impact on analyses. One of these commenters suggested that the Corps
expand its consideration of relevant factors to include additional
social and environmental factors, and that net present value estimates
be reported at a zero-percent discount rate. They felt this can be
invaluable when benchmarking new assumptions, methods, and policy
approaches. Several commenters indicated that, to the extent
practicable and allowable by law, the Corps and OMB should follow the
guidance in OMB Circulars A-4 and A-94 related to discount rates.
Another commenter suggested that the Corps define the term ``minimum
standards'' in the final rule that can be supplemented with OMB- and
Corps-specific guidance. Specifically, the commenter recommended that
the Corps should follow A-4 and A-94, adopt the declining discount rate
schedule outlined in Circular A-4, and should update the long-term
discount rate schedule every three years. Another commenter expressed
concern with OMB Circulars A-4 and A-94 and their use of risk adjusted
discount rates to account for risk to discount future costs and
benefits, and indicated that discounting should only be done to account
for the time value of money. This commenter also expressed concern with
using declining discount rates.
[[Page 104015]]
While not specific to discount rates, a commenter asked for the Corps'
perspective on weighted benefit-to-cost ratios as discussed in OMB
Circular A-94, while also providing support for including
distributional effects in analyses. Support for inclusion of
distributional effects was echoed by multiple respondents. Another
commenter responded that discounting methodologies applied to ecosystem
services or natural resources incorporate the impact of potential
scarcity into the future cost and value of these natural services and
resources.
Response: No changes were made to the final rule regarding discount
rates. In general, the Corps will follow the principles presented in
Circulars A-4 and A-94 for implementing a benefit-cost analysis. For
clarification, Circular A-94 emphasizes that the preferred way to
address risk is through project level certainty equivalents, which
adjust uncertain expected values to account for risk. Per Circular A-
94, when direct determination of individuals' certainty equivalent
valuations is not feasible, the inclusion of a risk premium in the
discount rate serves as a practical alternative. The discount rate used
by the Corps is based on a requirement in section 80 of WRDA 1974.
Where appropriate, the Corps will consider using weighted benefit-to-
cost ratios as part of a sensitivity analysis to inform an investment
decision.
Distributional effects are often considered but may not be
appropriate for some types of investments. For example, the primary
benefits associated with an aquatic ecosystem restoration project are
realized by the ecosystem that is being restored including the plant
and animal species that use that habitat, rather than by any specific
members of the public. The Corps does not discount non-monetized
outputs.
Another commenter provided several comments regarding how the Corps
conducts economic analyses. In particular, the commenter expressed
concern with the use of average annual values and the inclusion of
interest costs of borrowing. The commenter also mentioned a spreadsheet
tool that the Army uses for calculating benefit-to-cost ratios.
Response: No changes were made to the final rule regarding how the
Corps performs its economic analyses. The Corps utilizes a constant
dollar analysis. There is no comingling of constant or inflated values.
Costs are counted in the analysis in the year they are incurred. The
average annual calculations are the result of the present value being
factored with the capital recovery factor. The capital recovery factor
is calculated utilizing the discount rate used in the present value
calculations and the period of analysis and represents sound economic
evaluation. Current technical practices utilize the best available
tools and are subject to peer review requirements. The Corps does not
have a singular spreadsheet tool that is used to determine benefit-to-
cost ratios. While a particular study may use such a tool, the Corps
uses a variety of approved models in aiding with economic analyses.
The ASPs intentionally do not dictate specific evaluation tools,
methods, or processes. These tools and methods will evolve over time
and the Corps is committed to using the best available tools and
methods appropriate for the analysis, now and in the future. In this
manner, the Corps can be nimble in changing with the evolving science,
knowledge, data, and methods, rather than promulgating a prescriptive
method in regulatory text that may quickly become outdated.
The Army solicited comment on tools and methodologies. While the
ASPs do not prescribe the techniques to be used to quantify and
monetize costs and benefits, the Corps' analysis must include
information to justify the use of any technique as the most appropriate
given the circumstances, how it compares to other methods that could
have been used (pros vs. cons), and what are the risks and
uncertainties inherent in using that particular technique. The ASPs
allow for the use of new analytical techniques and methodologies as
they become available and cost-effective. Costs would include the costs
of O&M. One comment was provided which indicated that the final
regulation should more clearly describe how O&M costs projected for the
Corps and local sponsors are to be included in the benefit-cost
analysis used to evaluate the range of project alternatives.
Response: No changes were made to the final rule regarding tools
and methodologies. All O&M costs incurred by the Corps or others during
the period of evaluation for the study are included in the analysis.
The Corps will review existing guidance and provide updated guidance,
where warranted, following completion of the final rule.
The Army solicited comment on how such analysis would best be
conducted for projects affecting Tribal Nations, and whether the Corps
should identify, characterize, and evaluate the benefits to the Tribal
Nation separately, as opposed to including them in a broader assessment
of the overall benefits of the proposed project and the alternatives to
the U.S. Nation (including the affected Tribal Nations).
One comment supported the inclusion of subsistence and social
impact assessments and greater transparency for evaluating benefits and
impacts under the environmental justice analysis of a proposed project.
One comment stated that the impacts of existing Corps projects and
climate change on Tribal watersheds should be fully evaluated, as the
costs suffered by Tribes should be identified separately from any other
costs or damages incurred, including mitigation. Two comments
specifically supported the use of a social impact assessment
methodology to determine social costs of a proposed water resources
project, with one comment asking for it to be added as a Guiding
Principle of the PR&G.
Response: Changes were made to the final rule regarding the
treatment of Tribal benefits. As noted in the discussion of Sec.
234.4(c) in this preamble, several comments supported the separation of
Tribal benefits from public benefits. The rule was amended to state
that the consideration of benefits to Federally recognized Tribes will
be done in direct consultation with the respective Tribal Nation and
will supplement the public benefit analysis. While the PR&G apply to
new water resources development investment decisions (except for those
Federal activities noted in Sec. 234.4(d)(2)), compliance with other
Federal statutes and laws would still be required. Social impact
analysis is a methodology that could be used to evaluate social costs
and will be considered during the development of implementing guidance,
where warranted, following the completion of the final rule.
Section 234.10 Compare alternatives.
Section 234.10(a) Comparing alternatives. This section calls for
alternatives to be compared with each other and the No Action
alternative. The alternatives would include a description of the
adaptability and resilience of alternatives to climate change and other
risks. The alternative plan (or plans) that reasonably maximizes net
public benefits would be identified. The ASPs explicitly call for
robust engagement to provide meaningful participation and input from
Tribal Nations and stakeholders as they may have different
perspectives, values, considerations, and information on potential
effects to inform tradeoffs between alternatives.
The Army solicited comment on how it could compare alternatives and
develop a recommendation.
[[Page 104016]]
One comment recommended that this section of the rule be
strengthened to indicate that the considerations must include
beneficiaries and any others that will be significantly impacted, and
that their perspectives and preferences will be elicited on
alternatives. Another commenter suggested the text in Sec. 234.10(a)
include obtaining values and input from stakeholders and the affected
community. One commenter recommended additional guidance to assist
planners in determining how to maximize net public benefits. One
commenter supported the inclusion of environmental justice benefits and
costs among the display of effects of alternatives.
Response: The Army made minor edits to this section of the Rule for
clarity. The Corps will review existing guidance and provide updated
guidance, where warranted, following completion of the final rule.
The Army also solicited comment on when it would be appropriate to
apply multi-criteria decision analysis within a PR&G analysis. One
commenter responded and indicated that multi-criteria decision analysis
would be appropriate to use as a decision aiding tool.
Response: No changes were made to the final rule regarding the use
of multi-criteria decision analysis. Multi-criteria decision analysis
is a tool that may be used for assessing the tradeoffs among
alternatives and can aid in decision-making. The Corps will review
existing guidance and provide updated guidance relative to comparing
alternatives, where warranted, following completion of the final rule.
Another approach that could be followed is structured decision-
making. In addition, in certain instances, the Corps has employed
decision frameworks such as using resilience as a guiding strategy
under the City Resilience Framework \10\ for the Coastal Texas study.
The City Resilience Framework presents a broad, multi-dimensional
perspective on the integrated conditions that support resilience within
a community. The framework highlights four dimensions of resilience:
Health and Wellbeing, Economy and Society, Infrastructure and
Environment, and Leadership and Strategy. The Army solicited comment on
whether the City Resilience Framework aligns with the PR&G Guiding
Principles and if it could be employed in a decision framework under
the ASPs.
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\10\ See <a href="https://www.rockefellerfoundation.org/report/city-resilience-framework/">https://www.rockefellerfoundation.org/report/city-resilience-framework/</a>. Last accessed May 21, 2024.
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One commenter mentioned that the City Resilience Framework could be
used for assessing tradeoffs and effects of alternatives.
Response: No changes were made to the rule. The Corps will review
existing guidance and provide updated guidance relative to the PR&G
decision framework, where warranted, following completion of the final
rule.
The Army solicited comment on the various frameworks and methods
that may be employed in the decision-making process when facing a
multi-dimensional problem with complex tradeoffs between monetary and
non-monetary outputs and quantitative and qualitative data, which would
support objective analysis and sound decision-making.
The Army received comments that there should be a specific system
of accounts to realistically evaluate and balance tradeoffs. Others
recommended that the four accounts from the 1983 P&G be included in the
ASPs. One commenter requested additional detail and guidance related to
the evaluation and comparison of factors that cannot be monetized or
quantitatively evaluated.
The Army solicited comment on whether the Corps should pursue a
more straightforward approach, maximizing net public benefits as a
primary metric for comparing the alternatives and evaluating the
tradeoffs, and clarify the decision framework.
The Army received comments that additional direction should be
provided to assist planners in determining how to maximize net public
benefits.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance relative to
tools, methods, and processes, where warranted, following completion of
the final rule.
The Army received comments through Government-to-Government
consultation regarding Tribal Nations as beneficiaries and
appropriately identifying benefits to Tribes. Tradeoff analysis will
not be used to identify potential mitigation of loss of treaty rights,
and benefits to Tribal Nations can only be identified through direct
consultation.
Response: The rule was amended in Sec. 234.10(a)(3) to state that
Tribal treaty rights are guaranteed by such treaties. As mentioned
earlier, Sec. 234.9(c) was amended to ensure that the consideration of
benefits to Federally recognized Tribes is done in consultation with
the respective Tribal Nation.
Section 234.10(b) Tradeoffs. Tradeoffs are anticipated and expected
for the implementation of the ASPs regarding the potential
alternatives. Tradeoffs are assessed from the perspective of the
specific circumstances of each study, including the study area,
resources, impacted populations, and study authority to inform plan
selection.
The tradeoffs will be described throughout the decision-making
process to ensure an informed decision. Different project elements may
be justified for different types of public benefits, that should be
described. Tradeoffs may be identified on the basis of both
quantifiable and unquantifiable terms. In addition, each alternative's
separable element's goals and objectives should be identified to
provide a rationale for inclusion or exclusion from the alternative.
The Army solicited comment on whether the Corps should pursue a
more straightforward approach, using maximizing the net benefits as a
primary metric for use in comparing the alternatives and evaluating the
tradeoffs, and to clarify the decision framework.
Multiple commenters indicated that a system of accounts to evaluate
tradeoffs should be displayed to be complete and transparent. Several
commenters suggested that the non-Federal interest and other
stakeholders be included in the decision of the tradeoff analysis. One
commenter requested that the phrase ``professional judgment'' be
clarified. Another noted that investment decisions should be based on
complete and transparent tradeoffs. One commenter mentioned that the
Corps should clarify that benefit-cost analysis is an appropriate
decision framework and that net benefit maximization is an appropriate
decision criterion.
Response: No changes were made to the final rule. Benefit-cost
analysis is the basis for plan selection, and net public benefit
maximization is fundamental to the ASPs. Section 234.10(a)(3) of the
rule explicitly requires consideration of the preferences of Tribal
Nations and stakeholders when comparing alternatives. The phrase
``professional judgment'' is now defined in Sec. 234.2(m) of the final
rule. The Corps will review existing guidance and provide updated
guidance, where warranted, following completion of the final rule.
Section 234.10(c) Information for inclusion in the analysis. This
paragraph outlines the information and tables that will promote
consistency and transparency in comparisons across different studies.
The information to be included in the analysis and documentation is
consistent with other
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Federal agency approaches in their ASPs, so it can also provide
consistency across the Federal Government. Information must highlight
how alternatives achieve the four evaluation criteria of completeness,
effectiveness, efficiency, and acceptability.
Additional tradeoff displays should show any other relevant
important information. A summary table will display the economic,
environmental, and social costs and benefits, and another table would
indicate the extent to which the alternatives achieve the Guiding
Principles.
The Corps should use the most readily available, scientifically
acceptable, and best available data and information, to include
Indigenous Knowledge, for assessing tradeoffs.
The Interagency Guidelines support use of a common framework that
would be used across agencies enhance transparency and clarity about
the decision-making process, and encourage agencies to collaborate to
develop these common displays.
The Army solicited comment on the tools, methods, and processes for
assessing the tradeoffs to best elicit preferences resulting in the
most informed recommendations in a consistent manner, although
variation is expected due to the nature and diversity of water
resources and their associated challenges, which vary greatly across
the Nation.
Several commenters identified the need to refine methodologies to
ensure that local and regional benefits are not overshadowed by
national considerations and should be acknowledged in the benefit
evaluations and decisions.
Response: No changes were made to the final rule. The Corps will
review existing guidance and provide updated guidance, where warranted,
following completion of the final rule.
Section 234.10(d) Risk and uncertainty. This section requires a
description of areas of risk and uncertainty with sufficient detail so
that decisions can be made with knowledge of the degree of reliability
and the limits of available information, recognizing that even with the
best available engineering and science, risk and uncertainty will
always remain. From the vantage point of one who is deciding now
whether to propose an investment in water resources to achieve results
in the future, the risk and uncertainty in the outcome tend to increase
over time. Therefore, the study should include an analysis of the range
of expected results from the investment both in the short-term and in
the less predictable future, in order more fully to account for the
effects of the risk and uncertainty.
The Army solicited comment on the Corps' approach to identifying
areas of risk and uncertainty, including whether certain Corps studies
should include an estimate of the return on investment under current
conditions.
Commenters supported using science to describe risks and
uncertainty. One commenter suggested alternative methods to conduct
efficiency analysis.
Response: The Corps consolidated the discussion of risk and
uncertainty in one place in the final rule. Therefore, the final rule
no longer includes Sec. 234.10(d); and some of the language proposed
in that subsection has moved to Sec. 234.7(d). The Corps also has
revised Sec. 234.7(d) to include language on providing an estimate in
the study of the extent to which the uncertainty may change over time.
The Corps will review existing guidance and provide updated guidance
relative to methods to account for risks and uncertainties, where
warranted, following completion of the final rule.
Section 234.11 Select the recommended plan.
Section 234.11(a) Recommended plan. The Corps will recommend a
decision to either: (1) propose authorization of an alternative
project, program or plan; (2) pursue an alternative under existing law;
(3) propose implementation of a project, program or plan to be
implemented by others; or (4) take no further Corps action. Federal
investments should seek to achieve the Federal Objective and maximize
net public benefits, as measured by the economic, environmental, and
social costs and benefits to the Nation.
The PR&G help the Federal Government improve decision-making by
accounting for long-term costs and benefits; developing investments to
withstand or adapt to climate change; creating better, more resilient
communities; and avoiding conflicts and project delays by including
local input.
Multiple letters were received containing comments associated with
Sec. 234.11. One comment suggested additional explanation of how
preferences from non-Federal sponsors, Tribal Nations, stakeholders,
and others will be considered in the decision-making process. The same
letter also suggested the rule incorporate methods for monetizing
environmental and social effects. One comment expressed a need for a
requirement to explain how these preferences were incorporated into the
analysis and considered in the decision-making process. A letter
supported consideration of tools for tradeoff analysis for a more
structured decision-making process, and supported explicitly
documenting the process. Another letter requested that the rule require
the rationale for plan selection to include how non-Federal sponsors
and stakeholders were engaged in plan selection. One comment expanded
on a recommendation to include plan selection criteria in the rule to
inform non-Federal interests and the public of these requirements, and
to further support Congressional authorization and appropriation steps
to lead to successful cost-shared project implementation. One comment
recommended an edit to Sec. 234.11 by adding ``consistent with
achieving the Federal objective of protecting and restoring the
nation's environment.'' Another commenter suggested tying the selection
of a plan to the Federal Objective. One organization commented that it
remains to be seen how benefits analysis would be used to select a plan
and that there could be inconsistencies nationwide.
Response: Edits were made to the final rule regarding investment
recommendations and consideration of monetized and non-monetized
outputs in the decision-making process. The Rule was further modified
to require the Corps to analyze and fully consider all social,
environmental, and economic benefits and costs of each separable
element of a proposed investment. Section 234.10(a)(3) of the final
rule explicitly requires consideration of the preferences of Tribal
Nations and stakeholders when comparing alternatives. Sections 234.6
and 234.7(i) of the final rule specify that the Corps will identify
potential impacts to Tribal treaty rights at the earliest phases and
throughout the plan evaluation process, screening alternatives that
impact Tribal treaty and water rights. The Corps will review existing
guidance and provide updated guidance, where warranted, following
completion of the final rule.
The Army disagrees with comments about the use of benefits analysis
and potential nationwide inconsistencies. No changes were made to the
rule in this regard.
Section 234.11(b) Exceptions. The rule allows for exceptions for a
recommended plan that does not maximize net public benefits; however,
such exceptions must be approved by the Assistant Secretary of the Army
for Civil Works. This policy underscores the importance of the PR&G
approach to put forth a recommended plan that seeks to maximize net
public benefits.
Multiple comment letters were provided regarding this section of
the rule. One questioned whether an
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exception would not be required for recommended plans that do not meet
the authorized study purpose. Another letter suggested the rule
consider options to require additional support from cost-share partners
and others. Another recommended removing language in Sec. Sec. 234.3
and/or 234.11(b) potentially allowing unbounded exceptions.
Response: No changes were made to the rule. Input from non-Federal
interests, Tribal Nations, stakeholders, affected populations, and
other interested parties is routinely considered in the decision-making
process. The Corps will review existing guidance and provide updated
guidance relative to policy and procedural requirements, where
warranted, following completion of the final rule. An exception from
the Assistant Secretary of the Army for Civil Works will be required if
recommending a plan other than the pl
[…truncated; see source link]Indexed from Federal Register on December 19, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.