Today’s issue is a briefing of the Water Resources Development Act of 2018 (WRDA18). The main topics discussed are provisions related to transparency, dredging, non-Federal interests, disaster and nature & environment. There is an extraordinary number of provisions that were drafted as a ‘sense of Congress’ in earlier versions of the House and Senate bills. These provisions express what Congress would like to see happen, or what it believes should happen, but don’t incorporate language that specifically directs action. These are recognized in the bill by the word expedite and any conjugation of the word. For a copy of the bill, click here.
Let’s dive in.
The passing of WRDA18 last Wednesday continues Congress’ trend of producing a biennial water resources bill – Let’s have a round of applause for Congress. The authorization bill supports the nation’s water infrastructure, inland and coastal, and for those of us seeking changes in Corps of Engineers programs and processes, the bill demonstrates some progress towards increasing resilience and regionality, two of the topics discussed below. Despite the dozens of multi-million dollar figures in the bill, WRDA18 doesn’t appropriate a single dollar. It only authorizes the expenditure of money. Click here for a sheet explaining the difference between authorizations and appropriations.
Shore protection projects currently face the issue of having a benefit cost ratio (BCR) that is too low - The Secretary may proceed with a project if the project’s benefits are greater than its costs, but the White House Office of Management and Budget prefers to use a 2.5:1 ratio to determine the eligibility of shore protection projects for inclusion in the President’s annual budget proposal. This rejects many projects nowadays. Not only do our shore protection projects deliver significant direct financial returns on investment, they also create social and recreational opportunities that are not easily quantified in the economic justification of a project. This hinders the real benefits that a community gains from beach nourishment. Both the Government Accountability Office (GAO) and the National Academy of Sciences (NAS) are directed by WRDA18 to study this subject, with the GAO studying BCR concerns and the NAS covering the scope of economic and budgetary analyses. In addition, the NAS will do a comprehensive audit of the Corps to better understand its internal capabilities. This study will focus on improving the project delivery process, including identifying how appropriations, internal structure, organization and change of leadership affect the Corps’ delivery process. Of particular importance is the discount rate OMB uses for water resources projects, which is typically 6-7%, and far higher than a rate set in law by Congress. The NAS will look at this too. Click here for a sheet explaining the water resources discount rate.
When developing policy guidance, the Secretary is required to notify non-Federal stakeholders and provide an opportunity for their input and recommendations. Typically guidance is developed in a siloed fashion without much consultation outside of Corps Headquarters. This provision will empower local communities by allowing their mayors and staff to influence policy guidance to better reflect their local needs.
The Secretary shall issue a comprehensive construction backlog and operations and maintenance report not less than every two years. The report must include a complete list of all projects and separable elements of Corps of Engineers projects that are authorized for construction but not yet completed, all feasibility studies for which a Chief’s Report has not been issued, all environmental infrastructure projects and all major Federal operation and maintenance needs of projects and properties under the control of the Corps of Engineers. In addition, project data must include:
- Date of authorization
- Original budget authority
- Project description
- The estimated date of completion
- Estimated total present cost
- Total funds expended to date
- Appropriations required each year to complete the project
- Location of the project
- A statement from the non-Federal indicating the non-Federal’s capability to undertake a project
- The benefit-cost ratio
- The benefit cost ratio calculated using the discount rate of the Corps of Engineers
- The last year the project incurred Federal obligations
In order to prevent further expansion of the backlog, projects will be deauthorized if no funds have been appropriated for construction within 10 years of the date of authorization. The Secretary will submit a report to Congress within 60 days following the 10-year period for which has occurred since the date of authorization. In addition, the Secretary will issue a report that contains relevant information consistent with the list above for each expired project.
WRDA18 has raised the authorized funding limits of the Continuing Authorities Program (CAP). As noted above, that doesn’t cause an increase in appropriations. Annual appropriations are still at the mercy of the budgeting folks at OMB. However, they can be increased by Congress. We urge communities to utilize the CAP programs as much as possible to manage sediment and protect the environment. Some of the CAP programs are not well-known to States and local governments. Using them more will result in increased congressional appropriations and perhaps another increase in authorization limits. For more information on Continuing Authorities Programs, please see our Continuing Authorities Program Cheat Sheet.
A report on vulnerable areas that have not yet completed feasibility studies for the purpose of mitigating damages is to be provided to Congress within 1 year after the date of enactment of WRDA18.
Communities will be engaged by the Secretary in consultation of whether Corps projects in their region have had an adverse local effect on health or environment. A report is to be submitted to the House Committee on Transportation and Infrastructure and the Senate Committee on Environment and Public Works within 2 years after the date of enactment of WRDA18.
Report to Congress on Future Water Resources Development – Previously the report, required under Section 7001 of WRRDA 2014, included only a list of projects that were not selected by the Assistant Secretary of the Army. Now the report will include the actual details of projects and policies not selected in ASA’s annual report to Congress.
Prior Project Authorization – If a water resources project was authorized under a different business line, for example a flood risk management project authorized under a navigation business line, the Secretary shall ensure the project is carried out in accordance with any requirements that apply to the business line in which the project was originally authorized.
Balance Sheets - At the request of a non-Federal interest, the Corps is required to provide a balance sheet of the funds provided by Federal and non-Federal interests and the status of those funds. This is a level of transparency that has not always been followed by Corps Districts.
A new dredge pilot program will allow contracts to be awarded that address one or more harbors or inland harbors in a geographical region if the Secretary determines that the contract provides costs savings compared to the awarding of such work on an annual or project-by-project basis. This paper written almost 5 years ago highlights this idea, and we are thrilled that Congress is finally recognizing our concept of regionality. In addition to harbors, a separate pilot program allows the same contract awarding process for hurricane and storm damage reduction projects. As Congress recognizes the savings of combined mobilizations, we hope it encourages the Corps to avoid awarding contracts for single projects whenever contracts for regional mobilizations make sense. In addition, the assessment of harbors and inland harbors will identify opportunities for increasing beneficial use of dredged materials in the pilot program.
Dredged material management plans are to make maximum use of existing information, studies and innovative dredged material management practices. A report on this will be provided within 60 days after enactment of WRDA18.
All looks good until we get to Section 1148 – Beneficial use of dredged sediment. This needs to be changed and we’re hoping it wasn’t intentional. This provision states that, if a temporary easement is provided for the beneficial use of dredged material under CAP Section 204, the project shall no longer be eligible for future placement of sediment under section 204.
The Secretary shall complete operation and maintenance of Federal project structures in the Northeast: Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island and New York, ‘for which a feasibility study has been completed by December 31, 2019, that includes findings that a Federal project structure is disrupting the natural flow of sediment and causing erosion.’ We know of at least one project in Massachusetts with a feasibility study that is intended to be completed by the date stated above, which is experiencing severe erosion – that project is Sandwich, MA. Could it be?
Non-Federal implementation pilot program has been increased from 15 projects to 20. This is a pilot program that determines the delivery efficiency and cost effectiveness of a non-Federal interest in taking on a Federally authorized water resources project.
Until WRDA18, non-Federal interests were able to study water resources projects and have their feasibility studies taken at total value. Now, the feasibility study must first be Federally authorized or else the Secretary shall not review it.
Construction by non-Federal interests of a Federally authorized project will no longer require the non-Federal interest to acquire a permit if the Corps would not have been required to do so. In addition, the Corps must make available all project relevant documents. The non-Federal is also permitted to pay the Corps for technical assistance but may not be reimbursed for those costs.
The authority for providing technical assistance to states under Planning Assistance to States for the development of comprehensive water resource plans has been expanded from states to regional coalitions and institutions of higher education. This is a notable change because it provides the opportunity for NGO’s (with the approval of the State) to take a greater initiative in developing coastal resilience plans.
Have a benefit-cost ratio problem that gives your project a low budget priority, and, have some extra cash to throw at it? Raise your BCR by contributing more non-Federal funds towards the Federal share, thereby artificially increasing the Fed’s calculated BCR. In essence, by lowing the Federal share while providing the same level of benefits, the BCR increases. A provision in WRDA18 does just that.
For local government water management plans, a non-Federal interest may enter into an agreement with the Secretary to determine if a watershed element within the local watershed is eligible to be included in a feasibility study if that would be justified by a regional water management plan. We think this is related to California’s regional water management plans – but if you know, please let us know.
For all US territories that have experienced a natural disaster (Hello Puerto Rico!), all activities conducted, (the provision refers to certain specific Continuing Authorities Programs (CAP) but not Section 204, which is for the beneficial use of dredged material), are to be at full Federal expense. This includes small projects for flood control, mitigation of erosion caused by Federal navigation projects, aquatic ecosystem restoration, project modifications for the improvement of the environment, navigation improvements and for a storm and hurricane restoration and impact minimization program – see Section 103 of the Continuing Authorities Program.
Hurricane and storm damage reduction projects that will expire after their 50-year authorization will now have 10 years (instead of 5) added to their 50-year authorization while they await completion of a Section 1039 study that would lead to a 15-year extension of their project. This can result in a total extension of a project by 50% or 25 years. Please let us know if any of the affected projects would exceed their Section 902 limit while they await completion of the Section 1039 study.
Here is an issue we’ve discussed before, and this needs to be revised. It’s in regard to beach project profiles post-disaster. Congress retained the language in Section 1160 that authorized Flood Control & Coastal Emergency (FCCE) funds to restore damaged authorized projects to a ‘design level of protection’ or pre-storm levels. This is a problem because the pre-storm level already needs more sand, and a ‘design level of protection’ doesn’t exist. This means that a damaged beach can only be returned back to an inadequate state. The purpose here is to save money on building bigger beaches intermittently with FCCE funds, but the real cost is that beaches that need a full nourishment will only get a partial one, and that will consequently lead to a greater overall cost when that dredge comes back a year or two later for a scheduled periodic nourishment, or even worse, another storm comes before another nourishment occurs. The image below is from the policy guidance released by Corps Headquarters on May 11, 2018. The ‘design level of protection’ is “the project’s design profile template that reflects the project’s minimum (emphasis added) design dimensions that provide for the project’s benefits that would trigger (emphasis added) renourishment of the project.” The minimum dimensions that provide for the project benefits are thereby, in theory, an eroded beach ready for nourishment that has one grain of additional sand added to it. Once that single grain of sand is gone, that beach’s condition triggers the need for renourishment, and the gateway for this funding opens up. This needs to be clarified so that beaches are restored to ‘pre-storm levels’ or to the full project profile.
Image: Policy Guidance Memorandum, Corps HQ
A report on debris removal is to be made to Congress within 180 days after enactment of WRDA18 that describes the extent to which the Secretary has carried out debris removal in water bodies for the purpose of navigation, flood control and recreation. The Secretary is authorized to provide up to $5,000,000 for this purpose. This can be applied post-disaster for clean up operations in both Federal channels and adjacent channels.
Hurricane Barriers and Harbors of Refuge – Within 1 year the Secretary is required to consult with state and local experts in the North Atlantic Division on the durability and resiliency of existing hurricane barriers and harbors of refuge. Special attention will be given to how such barriers and harbors will survive and fully serve their planned level of protection the current, near and longer term, future predicted sea level rise, storm surges and storm strength.
The Secretary shall expeditiously carry out flood risk management projects or hurricane and storm damage risk reduction projects in Texas, Florida, Georgia, Louisiana, South Carolina, the Commonwealth of Puerto Rico or the US Virgin Islands. This is a direct response to the devasting storms that have impacted these regions in the past two years.
Nature & Environment
For aquatic ecosystem restoration, the Secretary shall consider and may include nature-based features if the inclusion of such features is consistent with project requirements.
The Great Lakes Coastal Resiliency Study – Is authorized for a Section 729 (watershed management study) to study resilience initiatives recognized as part of the Great Lakes Restoration Initiative. This is an initiative worked on heavily by the Coastal States Organization, which is spearheading the involvement of coastal states in the study. This is a model project for regionality and collaboration. If you’re not familiar with the GLCRS, reach out to CSO learn more.
The Coastal Texas Study is to be expedited by the Secretary by completing studies that are identified in the yet-to-be published interim report that describes a tentatively selected plan.
The Comprehensive Everglades Restoration plan is included in WRDA18. The State’s Gulf and (more recently) Atlantic Ocean shorelines have been especially hard hit by red tides and harmful algal blooms. The plan is for modifications and operational changes to the Central and Southern Florida Project that are needed to restore, preserve, and protect the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection. The plan shall be implemented to ensure the protection of water quality in, the reduction of the loss of fresh water from, and the improvement of the environment of the South Florida ecosystem and to achieve and maintain the benefits to the natural system and human environment described in the Plan, and required pursuant to this section, for as long as the project is authorized.
Lake Okeechobee – The heart of Florida’s freshwater system will have a regulation schedule to coincide with the completion of the Herbert Hoover Dike project. This is intended to reduce flows of nutrient-laden water from the lake to the ocean and to prevent harmful algal blooms.
The Corps of Engineers Engineering Research and Development Center (ERDC) is to implement a 5-year harmful algal bloom technology demonstration program to prevent harmful algal blooms across the nation, particularly in Florida and the Great Lakes.
We hope you found this briefing useful. If you are still searching for the answer to a question, please ask us.