Process for Requesting a Variance From Vegetation Standards for Levees and Floodwalls; Additional Filings, 9637-9650 [2012-3701]

Download as PDF Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices The Wilmington District will periodically issue Public Notices soliciting public and agency comment on the proposed action and alternatives to the proposed action as they are developed. Dated: February 8, 2012. Henry M. Wicker, Acting Chief, Wilmington Regulatory District. [FR Doc. 2012–3751 Filed 2–16–12; 8:45 am] BILLING CODE 3720–58–P DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Process for Requesting a Variance From Vegetation Standards for Levees and Floodwalls; Additional Filings United States Army Corps of Engineers, Department of Defense. ACTION: Notice. AGENCY: The U.S. Army Corps of Engineers (USACE) is updating the process for requesting a variance from vegetation standards for levees and floodwalls to reflect organizational changes and incorporate current agencywide review processes. DATES: Written comments must be submitted on or before April 17, 2012. ADDRESSES: You may submit comments, identified by docket number COE– 2010–0007 by any of the following methods: Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. Email: tammy.conforti@usace.army.mil. Include the docket number, COE–2010– 0007 in the subject line of the message. Mail: U.S. Army Corps of Engineers, Attn: CECW–CE, Tammy Conforti, 441 G Street NW., Washington, DC 20314– 1000. Hand Delivery/Courier: Due to security requirements, we cannot receive comments by hand delivery or courier. Instructions: Direct your comments to docket number COE–2010–0007. All comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, unless the commenter indicates that the comment includes information that is Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through regulations.gov or email. The mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 regulations.gov web site is an anonymous access system, therefore, if you wish to provide your identity or contact information it must be included in the text of your comment. If you send an email directly to USACE, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses. Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov. All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. FOR FURTHER INFORMATION CONTACT: Tammy Conforti, Levee Safety Program Manager, Headquarters, USACE, Washington, DC at 202–761–4649. SUPPLEMENTARY INFORMATION: The variance request process was developed to implement Section 202(g) of the Water Resources Development Act (WRDA) of 1996. Consistent with our regulations for implementing NEPA for our Civil Works programs, we have included a Finding of No Significant Impact (FONSI) for review. To comply with the requirements of the National Environmental Policy Act, a draft environmental assessment (EA) has been prepared. A copy of the draft EA is available at www.regulations.gov in docket number COE–2010–0007. If you would like to submit comments on the draft EA, you must do so before the end of the comment period specified in the DATES section above. The current commenting period is the second solicitation for comments on the revised Process for Requesting a Variance from Vegetation Standards for Levees and Floodwalls. The first comment period was open from 9 February 2010 to 26 April 2010. USACE reviewed and considered 561 comments from 110 separate organizations and PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 9637 individuals. The USACE response to these comments received can be found at http://www.nfrmp.us/guidance.cfm. Authority: We are proposing to issue this Policy Guidance Letter under the authority of 33 U.S.C. 701n. Dated: February 7, 2012. James C. Dalton, Chief, Engineering and Construction, Directorate of Civil Works. Policy Guidance Letter (PGL)—Process for Requesting a Variance From Vegetation Standards for Levees and Floodwalls 1. Purpose. This policy guidance letter (PGL) revises the procedures for obtaining a variance from U.S. Army Corps of Engineers (USACE) mandatory vegetation-management standards contained in Engineer Technical Letter (ETL) 1110–2–571—‘‘Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures’’ pursuant to Section 202(g) of the Water Resources Development Act (WRDA) of 1996. This PGL also includes timeframes and options for existing variances. These procedures align with the USACE Levee Safety Program goals of ensuring life safety as a top priority and applying consistent processes to make well-informed decisions. This PGL supersedes the existing regional variance policy and process contained in Engineer Regulation (ER) 500–1–1 and Engineer Pamphlet (EP) 500–1–1 (including Appendix E), dated 30 September 2001, and will serve as the applicable guidance until this process is incorporated into a USACE engineer publication. 2. Applicability. This PGL applies to all Headquarters USACE (HQUSACE) elements, Major Subordinate Commands (MSCs), districts, and field operating activities having responsibility for Civil Works projects. This policy applies to levees within the USACE Levee Safety Program, including those (1) USACE operated and/or maintained; (2) federally authorized, typically USACE constructed, and locally operated and maintained; and (3) locally constructed and locally operated and maintained, but associated with the USACE Rehabilitation and Inspection Program (RIP) (also known as the Pub. L. 84–99 program). 3. References. a. Engineer Regulation (ER) 500–1–1, Emergency Employment of Army and Other Resources, Civil Emergency Management Program, 30 September 2001. E:\FR\FM\17FEN1.SGM 17FEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 9638 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices b. Engineer Circular (EC) 1110–2– 6066, Design of I–Walls, 1 April 2011. c. Engineer Circular (EC) 1165–2–209, Civil Works Review Policy, 31 January 2010. d. Engineer Pamphlet (EP) 500–1–1, Emergency Employment of Army and Other Resources, Civil Emergency Management Program—Procedures, 30 September 2001. e. Engineer Manual (EM) 1110–2– 1913, Design and Construction of Levees, 30 April 2000. f. Engineer Manual (EM) 1110–2– 1601, Hydraulic Design of Flood Control Channels, 30 June 1994. g. Engineer Manual (EM) 1110–2– 2502, Retaining and Flood Walls, 29 September 1989. h. Engineer Technical Letter (ETL) 1110–2–575, Evaluation of I-walls, 1 September 2011. i. Engineer Technical Letter (ETL) 1110–2–571, Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures, 10 April 2009. j. Engineer Technical Letter, (ETL) 1110–2–569, Design Guidance for Levee Underseepage, 1 May 2005. k. Memorandum, HQ USACE (CECW– HS), Subject: Policy for Development and Implementation of System-wide Improvement Frameworks (SWIFs), 29 November 2011. 4. Background. The purpose stated in Section 202(g) of WRDA of 1996, is ‘‘to provide a coherent and coordinated policy for vegetation management for levees’’ so as to ‘‘address regional variations in levee management and resource needs.’’ In general, the resulting policy set forth in ER 500–1– 1 allowed the levee sponsor, meeting all eligibility criteria for rehabilitation assistance pursuant to 33 U.S.C. 701n (Pub. L. 84–99), to seek a variance to USACE vegetation standards when such a variance would preserve, protect, and/ or enhance natural resources and/or protect rights of Tribal Nations. However, it was required that the safety, structural integrity, and functionality of the levee, in addition to accessibility for inspection and floodfighting purposes be retained. 5. Definitions. For use in this document: a. A levee consists of one or more earthen embankment or floodwall segments. b. A levee system consists of one or more segments of earthen embankment or floodwall, and all appurtenant structures (such as closures, berms, pumping stations, culverts, and interior drainage) which are interconnected and necessary to reasonably reduce the VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 potential of floodwater entering a defined area. c. A variance is defined as alternative vegetation management standards to be applied to a levee system or portion thereof that provide for the same levee functionality as intended in ETL 1110– 2–571. 6. Eligibility Requirements for Requesting a Vegetation Variance. a. For consideration of a vegetation variance that preserves, protects, and/or enhances natural resources, the requester must demonstrate that a variance is the only reasonable means to achieve the following criteria: (1) Comply with applicable law concerning the environment, cultural or historic preservation; or (2) Protect the rights of Tribal Nations, pursuant to treaty, statute, or Executive Order; or (3) Address a unique environmental consideration, such as to maintain sensitive species populations and to preclude the need for future federal listings under the Endangered Species Act (ESA), endorsed by the National Marine Fisheries Service (NMFS) or U.S. Fish and Wildlife Service (USFWS). b. Levee systems as described below do not have to meet the criteria established in Paragraph 6.a. in order to be eligible to request a variance: (1) Existing levees, federal or nonfederal, in which it can be demonstrated through written documentation that there is an existing vegetation variance or vegetation deviation agreement between the local USACE District and the levee sponsor prior to the date of this memorandum; or, (2) Levee systems for which a variance is requested for a planting berm. c. A USACE District may submit a vegetation variance request for the following situations (Note: For Paragraphs 1–3 below, criteria established in Paragraph 6.a. do not have to be met and the USACE District must have concurrence from the levee sponsor): (1) Federally authorized levees that have advanced into the preconstruction, engineering, design (PED) or construction phase of development, but for which USACE has not provided written notice of their completion and of the levee sponsor’s duty to begin operation, maintenance, repair, rehabilitation, and replacement as of the date of this memorandum; or, (2) Existing federally authorized levees in which it can be demonstrated that vegetation was previously part of the original design prior to the date of this memorandum or, PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 (3) Existing federally authorized levees in which the existing operations and maintenance (O&M) manual allows vegetation within the vegetation-free zone or, (4) Levee systems for which USACE has operations and/or maintenance responsibilities; or, (5) In areas with ESA considerations or where the rights of Tribal Nations pursuant to treaty, statute, or Executive Order may be impacted, the USACE District may submit, in advance of actual need, cross-sections for Public Law 84–99 repairs that include vegetation, for a specific levee system. The submittal must: (a) Have concurrence from the levee sponsor and, if different from the levee sponsor, the maintaining entity and, (b) Have been shared with and commented on by the appropriate USFWS and/or NMFS office in order to anticipate measures that are likely to adequately address impacts to listed species and critical habitat in order to streamline formal consultation when repairs are to be implemented. d. In addition to the requirements in Paragraph 6.a., all vegetation variance requests must also demonstrate that the following are retained: (1) Structural integrity, and functionality of the levee system; and, (2) Accessibility for operations, maintenance, repair, inspection, monitoring, and floodfighting of the levee system. 7. Process. A request for a vegetation variance can originate from a USACE District (see Paragraph 6.c.) or a levee sponsor. In cases where a levee sponsor is considering applying for a vegetation variance, it is recommended that the levee sponsor contact their respective USACE District and review minimum requirements as set forth in Enclosures 1–3. Early coordination between USACE and the levee sponsor is strongly recommended because it will aid in focusing efforts and minimizing costs. Once the vegetation variance request has been submitted, the following describes the process USACE will follow to review the request. a. The USACE District shall ensure timely coordination with appropriate federal and state agencies and Tribal Nations concerning regional environmental, cultural, and historic considerations throughout the vegetation variance request process. The USACE District shall notify the appropriate regional offices of the federal resource agencies and Tribal Nations in writing within 30 days upon initiation of a vegetation variance request or when a request has been received. E:\FR\FM\17FEN1.SGM 17FEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices b. The USACE District (along with the levee sponsor if appropriate) shall initiate timely coordination upon initiation of a vegetation variance request with the MSC and the Vegetation Variance Lead for the Risk Management Center (RMC) to assure that the review process is well coordinated and allows for timely feedback on submittal requirements. This early coordination in the development of the variance request is intended to appropriately scale the scope of the request and/or identify conditions for which variance approval is unlikely. c. The USACE District Levee Safety Officer (LSO) shall review the variance request for completeness and compliance and recommend initiation of an Agency Technical Review (ATR) to the RMC. d. The RMC shall lead and manage the ATR for each variance request. HQUSACE will fund the ATR. The timeline for the ATR will depend on the complexity of the request, but will not exceed 90 days after the ATR team receives the final request package unless special circumstances warrant additional time. The ATR will be documented and certified as per requirements in EC 1165–2–209. Final ATR documentation shall be part of the variance request package. The following are the typical disciplines that will be included on the ATR team: geotechnical, geological, hydraulics/ hydrology, environmental/biological sciences, emergency management, operations/maintenance, and landscape architecture. Other disciplines will be added to the ATR team as needed and based on the variance request. e. Following completion of the ATR, the USACE District Commander shall either endorse or not endorse the request and provide the rationale for the recommendation. If the request is endorsed, the District Commander shall submit the request package through the MSC LSO to the MSC Commander. The USACE MSC LSO shall review the request and recommend to the MSC Commander, either for or against endorsement. The USACE MSC Commander shall either endorse or not endorse the request and provide the rationale for the recommendation. If endorsed, the USACE MSC Commander shall submit the request to HQUSACE, via the Regional Integration Team (RIT) process, for approval. f. The HQUSACE LSO, or the HQUSACE LSO designee, will be the final approving official for the request and will document the basis for the decision. VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 g. The USACE District shall serve as the main point of contact for coordination with the levee sponsor throughout the variance request process, including providing the levee sponsor with documentation of final decision of the vegetation variance request. h. All final documentation for the vegetation variance request shall be uploaded by the USACE District to the National Levee Database (NLD). i. Upon final approval but prior to implementation of the variance, the USACE District and the requester shall sign a Vegetation Variance Agreement, based on the template at Enclosure 2. The USACE District shall involve the District Office of Counsel in the drafting of the agreement. The agreement can be approved and executed at the District level unless changes to the template are made that would affect the terms of the approved variance. For levee systems with multiple levee sponsors, each levee sponsor must sign the agreement and certificate of authority. j. During inspections, levees will be rated for eligibility for federal rehabilitation assistance under Public Law 84–99 in accordance with the levee inspection checklist and requirements set forth in an approved variance(s). Levee systems with an Acceptable or Minimally Acceptable rating will remain eligible for federal rehabilitation assistance under Public Law 84–99, including any features associated with an approved variance such as planting berms and overbuilt sections k. The associated vegetation management plan and approved variance shall be added to the levee’s operation and maintenance (O&M) manual as an addendum. 8. Vegetation Variance Request Submittal Requirements. Submittal requirements are detailed in Enclosure 3. 9. Special Considerations. The following points should be considered prior to initiating a vegetation variance request. a. This vegetation variance policy does not apply to embankment dams and their appurtenant structures, channels, or shore-line or river-bank protection systems such as revetments, sand dunes, and barrier islands. b. New federally authorized costshared levee projects shall be designed to meet the current vegetation management standards. It should be noted that landside planting berms may be incorporated into a new levee project design without a vegetation variance request. c. Regional variances or variances that cover all levees within a geographical area will not be issued. Vegetation PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 9639 variances will be considered only for individual levee systems or portions thereof. However, regional conditions, with regard to soils, local climate and vegetation, and other pertinent factors, will be taken into consideration. d. To ensure the ability to implement floodfighting activities, such as placement of sandbags or other temporary floodfight measures near the waterside crown, and to see areas of distress on the landside during a flood event, typically the upper third of the waterside slope, the crown, the landside slope, and within 15 feet of the landside toe (subject to preexisting real estate interest) of the levee needs to remain vegetation free, as defined in ETL 1110– 2–571. Any vegetation variance requests proposed for these areas will be carefully evaluated to ensure requirements in Paragraph 6 are met. e. The types of approvable vegetation variances near floodwalls may be very limited, especially for I-walls of concern as identified per Paragraph 3.h. For floodwalls, the landside and waterside corridors are areas of particular concern due to potential impacts of root damage to joints, drains, and foundations, as well as, acute tree-overturning damage (breakage, destabilization and displacement). Any vegetation variance requests proposed for areas containing floodwalls will be carefully evaluated to ensure requirements in Paragraph 6 are met. f. The vegetation variance process is not a mechanism to validate conditions that have developed as a result of inadequate levee operations and maintenance. g. Past USACE inspection reports that did not identify noncompliant vegetation as a deficiency do not constitute an existing vegetation variance or approved deviation. h. In the case of a levee sponsor seeking initial eligibility for federal rehabilitation assistance under Public Law 84–99, prior to acceptance, the levee system must meet all eligibility requirements including current vegetation standards or an approved vegetation variance must be obtained if criteria in Paragraph 6 are met. i. To avoid duplication of effort, vegetation variance applications involving planting berms that are part of a study or PED should take advantage of the analysis and documentation review performed as part of the authorized project (see Enclosure 3, Figure 3). j. If implementation of a vegetation variance will constitute a modification or is part modification of a federally authorized levee, then the levee sponsor must also seek approval under 33 U.S.C. 408 as part of the vegetation variance E:\FR\FM\17FEN1.SGM 17FEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 9640 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices request. The levee sponsor should work with the USACE District to ensure that the variance request satisfies the requirements of the current guidance on the implementation of 33 U.S.C. 408. k. USACE District costs for processing or submitting a vegetation variance request shall be funded by the appropriate account based on authorization of the levee system (Operations and Maintenance (O&M) General, Inspection of Completed Works, or Flood Control and Coastal Emergencies). l. For instances in which a request for a vegetation variance accompanies or is part of other actions that require the execution of an agreement between the levee sponsor and USACE (e.g., modifications under 33 U.S.C. 408 or Public Law 84–99 repairs), a single agreement that satisfies the requirements for each of the actions should be used. In such cases, the template agreement at Enclosure 2 need not be used, but the substantive terms from the template should be incorporated into the agreement that is signed. The USACE District shall ensure coordination with USACE District Office of Counsel on final agreements. m. The process outlined in this memorandum may be implemented as part of a system-wide improvement framework (SWIF) per Paragraph 3.k. Enclosure 4 contains scenarios for the vegetation variance process and SWIFs. 10. Timeframes for Existing Vegetation Variances or Other Vegetation Deviations. Deviation from the national standards as defined in ETL 1110–2–571 is permitted only through a vegetation variance approved by the HQUSACE LSO via the process described herein. USACE recognizes that areas with sensitive environmental considerations will require planning and coordination; therefore, the following provisions are being provided: a. For levees meeting the requirements of Paragraph 6.b.1, the levee sponsor will have one year from the date of this memorandum to submit a letter of intent to their respective USACE District expressing intent to either submit a vegetation variance request or develop a system-wide improvement framework (SWIF) as per Paragraph 3.k. (1) If the decision is to submit a vegetation variance, the levee sponsors will have one additional year to submit a vegetation variance request. Until the vegetation request is submitted and the review process is complete, the levee system will continue to be inspected in accordance to the existing vegetation variance or other vegetation deviation VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 for determining Public Law 84–99 rehabilitation assistance eligibility. (2) If the decision is to develop and implement a SWIF, procedures in Paragraph 3.k. shall be followed. For levee sponsors already implementing an agreed SWIF, no letter of intent is required. b. For levee sponsors with existing vegetation variances or deviations that do not submit a letter of intent, vegetation variance request, or SWIF by the required timelines, the existing vegetation variances, agreements, or other deviations applied to their levees may no longer be considered valid. The USACE District should verify with the levee sponsors if they wish to continue participating in Public Law 84–99. If the levee sponsor does choose to continue their participation, the USACE District LSO will inform the levee sponsor via letter (copy furnished to the MSC and HQUSACE LSO) of the vegetation management standards to be applied to that levee. c. For levees that meet the requirements of Paragraph 6.c.2 and/or 6.c.3 and currently have an Acceptable or Minimally Acceptable inspection rating, excluding the vegetation designed into the levee by USACE and/ or allowed by USACE in the O&M manual (in other words the levee has been properly maintained in accordance to the current O&M manual), the USACE District will have one year from the date of this memorandum to submit a letter to the MSC LSO expressing intent to either submit a vegetation variance request or pursue a plan to meet ETL 1110–2–571. It must be demonstrated that the letter of intent was coordinated with the levee sponsor(s). For levees that meet the requirements of Paragraph 6.c.2 and/or 6.c.3 and currently have an Unacceptable inspection rating, the levee sponsor must correct the unacceptable deficiencies, excluding the vegetation designed into the levee by USACE and/or allowed by USACE through the O&M manual, prior to the USACE District taking action to seek a vegetation variance or plan to meet ETL 1110–2–571. Should the levee sponsor seek a SWIF per Paragraph 3.k, then the USACE District shall ensure that its action to pursue a variance or other means to meet ETL 1110–2–571 is incorporated into the comprehensive SWIF process. d. For levees meeting the requirements of Paragraph 6.c.1, depending on the status of the project phase, USACE Districts must either submit vegetation variance request or pursue a plan to meet ETL 1110–2–571 as soon as possible. PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 e. For levee systems operated and maintained by USACE, the USACE District will have one year from the date of this memorandum to submit a letter to the MSC LSO expressing intent to either submit a vegetation variance request or pursue a plan to meet ETL 1110–2–571. f. USACE Districts should copy furnish all letters of intent to the HQUSACE LSO. 11. Environmental Compliance. USACE is responsible for assuring compliance with all applicable environmental requirements before a decision can be made on a vegetation variance request. As a condition of the levee sponsor choosing to participate in Public Law 84–99, the levee sponsor is responsible for providing all background studies, data, and other information required by USACE to complete the environmental compliance processes under the National Environmental Policy Act (NEPA), ESA, and any other applicable environmental resource protection statute (except for those instances in which a USACE District is the proponent of a variance as provided in Paragraph 6.c.). The documentation must analyze, as alternatives, the effects of the implementation of the proposed vegetation variance and the implementation of the national standards. The levee sponsor must commit to implementation of any measures (such as monitoring, reasonable and prudent alternatives, etc.) needed to comply with ESA or other legal requirements before the levee sponsor may participate, or continue participation, in the Public Law 84–99 program and must commit to bearing the costs for implementation of these measures. 12. Submittal Process for New Vegetation Related Science and Technology. For instances in which an entity would like to submit new science or technology related to vegetation for USACE consideration, submitters must ensure that any submitted document produced from research be peer reviewed prior to following the submittal process described below. Documents submitted to USACE through this process must be submitted by the author(s) of the documents. Submittal packages should be sent to the US Army Engineer Research and Development Center (ERDC), 3909 Halls Ferry Road, Vicksburg, MS, 39180, Point of Contact (POC): To Be Determined (TBD). a. Submittal of a peer-reviewed final document must include the following: (1) Cover letter by the submitter requesting USACE consideration for E:\FR\FM\17FEN1.SGM 17FEN1 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices identified relevant areas of application within USACE existing policies; and, (2) Documentation of the peer review demonstrating that a standard procedure for peer review was followed; and, (3) Relevant documents for the science and technology submitted. b. Once a submittal package is received, the responsibilities of ERDC are as follows: (1) Inform HQUSACE (CERD) of receipt of the submittal; and, (2) Review the submittal package to ensure that peer review requirements have been met; and, (3) Review, evaluate, and summarize the methods, procedures, and results; and (4) Provide the ERDC evaluation and submittal package to HQUSACE within 60 days of receiving the submittal package. c. Once the ERDC review is received, the responsibilities of HQUSACE (CERD in coordination with applicable Communities of Practice) are as follows: (1) Review the ERDC summary and submittal documents for potential applicability within USACE; and, (2) Further coordinate with ERDC, if needed; and, (3) Provide a written response letter and the basis for the HQUSACE determination to the submitters within 60 days of receiving the ERDC evaluation. 13. After vegetation variance request packages are reviewed through this process, results will be posted by the HQUSACE LSO to the Levee Safety Community of Practice page, on the Technical Excellence Network (TEN) at https://ten.usace.army.mil. 14. The points of contact for this guidance are (TBD). James C. Dalton, P.E., SES, Chief, Engineering and Construction Directorate of Civil Works Enclosures: 1. Submittal Checklist and Review and Approval Signature Sheet 2. Vegetation Variance Agreement 3. Submittal Requirements 4. Scenarios and Timelines for Attaining Compliance with USACE Standards 5. Scenarios of Responsibility for PreExisting Variances and Other Documented Deviations mstockstill on DSK4VPTVN1PROD with NOTICES Enclosure 1—Submittal Checklist Vegetation Variance Request Submittal Checklist The items checked below are submitted herewith, consistent with the requirements outlined in Enclosure 3 (Vegetation Variance Request Submittal Requirements) of Policy Guidance Letter (PGL)—Process for Requesting a VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 Variance from Vegetation Standards for Levees and Floodwalls, dated TBD. b (1) A general description of the levee system. b (2) A brief narrative describing the proposed vegetation variance. b (3) A brief narrative explaining why the proposed changes are necessary to address the criteria presented in PGL Paragraph 6. b (4) Detailed, annotated, plan and section drawings and photographs. b (5) All pertinent engineering analyses: cross-section, hydraulic, geotechnical, and structural, as needed. b (6) The most recent Routine Inspection Report and Periodic Inspection Report completed by the USACE District. b (7) A summary of levee system performance history for all significant flood events. b (8) A Vegetation Management Plan, detailing the conditions to be maintained. b (9) Any National Environmental Policy Act (NEPA), Endangered Species Act (ESA), or other environmental compliance documentation that the USACE District determines necessary to the review. b (10) Any requested excerpts of the current project O&M manual. b (11) Any other information, as appropriate to specific conditions. b (12) ATR team review documentation. b (13) The Requester’s primary point(s) of contact (POCs) for this request, as follows. NAME: ORGANIZATION: TITLE: TELEPHONE: E-MAIL ADDRESS: Enclosure 1—REVIEW AND APPROVAL SIGNATURE SHEET SUBMITTED BY: lllllllllllllllllllll The (name of entity) (signature) lllllllllllllllllllll (full name, typed) (title, in full) lllllllllllllllllllll DATE (If a USACE District is the submitter, additional levee sponsor signature blocks shall be added to ensure all levee sponsors concur. If a levee system has multiple levee sponsors, additional levee sponsor signature blocks shall be added for each levee sponsor’s signature.) REVIEWED BY: U.S. Army Corps of Engineers, (insert name) District lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 9641 Levee Safety Officer lllllllllllllllllllll DATE ENDORSED BY: U.S. Army Corps of Engineers, Risk Management Center lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) Leader, Agency Technical Review Team lllllllllllllllllllll DATE ENDORSED BY: U.S. Army Corps of Engineers, (insert name) District lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) Commander lllllllllllllllllllll DATE REVIEWED BY: U.S. Army Corps of Engineers, (insert name) MSC lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) lllllllllllllllllllll DATE Levee Safety Officer ENDORSED BY: U.S. Army Corps of Engineers, (insert name) MSC lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) Commander lllllllllllllllllllll DATE APPROVED BY: U.S. Army Corps of Engineers, HQ lllllllllllllllllllll (signature) lllllllllllllllllllll (full name, typed) Levee Safety Officer lllllllllllllllllllll DATE Enclosure 2—VEGETATION VARIANCE AGREEMENT Vegetation Variance Agreement for (enter the levee system name, location and ID number, as defined in the National Levee Database) I. Purpose. The purpose of this Agreement is to allow for specific and limited variance from US Army Corps of Engineers (USACE) vegetation standards, for the levee named above. II. Authority. This Agreement is made pursuant to the authority of Public Law 99, 84th Congress (33 U.S.C. 701n), as regulated by Title 33, Code of Federal E:\FR\FM\17FEN1.SGM 17FEN1 9642 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Regulations, Sections 203 and 208.10, and as implemented by policy guidance letter, Subject: Policy Guidance Letter— Requesting a Variance from Vegetation Standards for Levees and Floodwalls, dated TBD. III. Applicability. This Agreement is applicable only to those portions of the above-named levee system that are identified as vegetation variance zones in the attached submittal drawings. IV. References. (Insert any references that are applicable, including the existing project cooperation agreement. This could include state law, county ordinances, Federal or state court documents, technical manuals, etc. References may be incorporated into this Agreement). V. Scope. A detailed description of the conditions proposed under this Agreement is provided in attachment (attach approved vegetation request package). VI. Actions During and After Emergencies A. Definition of Emergency. For the purposes of application of this Agreement, the term emergency is defined as any situation as declared by the District Commander in which a levee is threatened with either failure or overtopping. B. Definition of Flood Fight. For the purposes of application of this Agreement, the term flood fight is defined as actions taken immediately before or during a flood to protect human life and reduce flood damages, such as evacuation, emergency sandbagging and diking, and providing assistance to flood victims. C. Conduct of Flood Fight Activities. During an emergency, any responsible party engaged in flood fight activities, to specifically include the USACE, the (list states, cities, or counties as necessary), and the levee sponsor may take whatever actions are necessary to preserve the structural integrity of the levee addressed by this Agreement. Actions necessary to preserve the structural integrity of the system may include removal of any and all vegetation on or near the levee or floodwall. D. Rehabilitation. Any levee repairs, modifications, or improvements following the emergency event shall be in accordance with current USACE vegetation management standards or the approved vegetation variance for the levee. VII. Obligations of the Levee Sponsor A. The levee sponsor agrees to maintain the levee system in accordance with the attached approved vegetation VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 variance and assume the responsibility for implementing and bearing the costs of any measures that are required for compliance with the ESA or any mitigation requirements that result from environmental compliance processes such as the NEPA or required permits. B. The levee sponsor shall hold and save the Government free from all damages arising from any and all activities associated with this Agreement. VIII. Notices A. All notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally, given by prepaid telegram, or mailed by first-class (postage prepaid), registered, or certified mail, to the address provided. B. A party may change the address to which such communications are to be directed by giving written notice to the other parties in the manner provided in Paragraph C (below). C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at such time as it is personally delivered, or, seven calendar days after it is mailed. IX. Expiration of This Agreement (Approval of this agreement may be contingent upon agreement to an expiration mechanism. Use one of the three conditions below to complete this paragraph.) (This Vegetation Variance is intended to be permanent.) (This Vegetation Variance shall expire on [insert date].) (This Vegetation Variance shall expire upon [explain event].) However, the Corps reserves the right to revoke this Agreement if USACE determines that it results in conditions that threaten levee system reliability and public safety. (signature) (full name, typed) (title) DATE: lllllllllllllllll (Other signature blocks may be added as necessary.) XI. Certificate of Authority Certificate of Authority I, lllllllllllllll llllllllllllllll llllll, do hereby certify that I am the principal legal officer of the (Name of Public Sponsor), that (Name of Public Sponsor) is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the (Name of Public Sponsor) in connection with this Vegetation Variance Request and Agreement Addressing the Vegetation Standards for (enter the levee system name and location, as defined in the National Levee Database) and that the persons who have executed this Agreement on behalf of (Name of Public Sponsor) have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this l lllllllllllll day of lllllllllllll 20ll. (Name of Counsel for signing entity) (Full Formal title) Enclosure 3—VEGETATION VARIANCE REQUEST SUBMITTAL REQUIREMENTS Submittal Requirements Recommended First Steps 1. Contact the local USACE District. Early coordination may help to focus efforts and minimize costs. 2. Consider submittal requirement in Paragraph 4.b.(2) below. If the prism is not smaller than the existing levee cross section, it is unlikely that a variance involving woody vegetation will be approved without compensating structural modifications. 3. Please note the following points: X. Signatures a. A variance may not result in an IN WITNESS HEREOF, the parties expected level of reliability below that hereto have executed this Agreement, provided by a structure designed to which shall become effective upon the minimum standards as detailed in the date it is signed by the USACE District following USACE Engineer Manuals Commander. (EMs), Engineer Technical Letters (ETLs), and Engineer Circular (EC). THE DEPARTMENT OF THE ARMY (1) EM 1110–2–1913, Engineering and BY: lllllllllllllllllll Design—Design and Construction of (signature) Levees, 30 April 2000 (full name, typed) (2) EM 1110–2–1601, Engineering and DISTRICT COMMANDER Design—Hydraulic Design of Flood (district name) DISTRICT DATE: lllllllllllllllll Control Channels, 30 June 1994 (3) EM 1110–2–2502, Engineering and BY: lllllllllllllllllllll Design—Retaining and Flood Walls, 29 September 1989 (name of requester) PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\17FEN1.SGM 17FEN1 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES (4) ETL 1110–2–575, Evaluation of Iwalls, 1 September 2011 (5) ETL 1110–2–569, Engineering and Design—Design Guidance for Levee Underseepage, 1 May 2005 (in-effect through August 2012, content to be incorporated into other guidance) (6) EC 1110–2–6066, Engineering and Design—Design of I–Walls, 1 April 2011 b. Minimum design standards may not be sufficient for all situations: sufficiency of minimum standards, for specific conditions, will be subject to engineering analysis and evaluation. c. The levee, or floodwall, and any appurtenant structures are designed to function together, as a system. Any likely incidental impacts to system functionality must also be considered. d. A request for a vegetation variance for a planting berm need not satisfy the environmental or Tribal criteria outlined in Paragraph 6.a. of the PGL, and it need not address the associated submittal requirement in Paragraph 3 (below). e. The graphic information provided in response to the submittal requirements in Paragraph 4 (below), and the vegetation management plan provided in response to Paragraph 8 (below), together shall fully define the extent and conditions of the vegetation variance. f. The USACE District shall assure the accuracy of all information submitted in satisfaction of the Submittal Requirements. Submittal Requirements Information satisfying the numbered requirements below shall be submitted in Adobe Systems portable document format (PDF), under cover of the completed Submittal Checklist provided herein, Enclosure 1. The Review and Approval Signature Sheet shall then be attached to the vegetation variance request package for tracking of the review process. Advance coordination between the requestor(s), the USACE District/MSC, and the Risk Management Center (RMC), prior to preparing the variance request, is recommended and may result in situation-specific amendment to these submittal requirements. Any clarifications to this guidance, and examples of vegetation variance request documents, will be available through the USACE District. 1. A general description of the levee system including system name, project authority, location, and National Levee Database (NLD) identification number (available through the USACE District). 2. A brief narrative describing the proposed deviations from the USACE vegetation-free-zone standards prescribed in ETL 1110–2–571 VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures. Include a general description of existing and proposed plant locations, and type of vegetation (e.g. tree or shrub). Also include a representative list of species and the following characteristics of each, at maturity and, if different, at the maximum maturity to be permitted under the vegetation management plan: height, crown diameter, and root pattern and extent (horizontal and vertical). Cite source(s) used for information on plant characteristics. 3. A brief narrative explaining why the proposed variance(s) are necessary to address the criteria presented in Paragraph 6.a. of the main policy memorandum. Explain why these needs cannot be satisfied at a location other than on the levee; what alternatives to a vegetation variance were considered, and why the requested variance the only reasonable means to address applicable criteria. If Paragraph 6.a. of the PGL does not apply then simply state why it does not. 4. Detailed, annotated, plan and section drawings, and photographs, using an 11 x 17 format at a scale and resolution appropriate to the level of detail and enlarged on-screen viewing, which clearly convey pertinent information as follows: a. Provide a plan-view drawing, showing the overall levee system, in context, and identifying each reach to which the variance is to apply. As used here, the term ‘‘reach’’ may be defined as follows: a length of levee that may be accurately represented by a single crosssection drawing and set of conditions. Provide overall stationing (in feet or miles), and identify the beginning and ending points for each levee reach to be considered. The variance request should not include any portion of the levee system for which there are reasonable alternatives; for example, a variance will not be granted for an entire levee system when only a portion of that system meets the criteria described in Paragraph 6.a. of the PGL. b. Provide a cross-section drawing for each levee reach to which the variance is to apply. Each cross-section drawing shall include the following information. (1) Show, label, and dimension the entire levee and/or floodwall. Include any existing or proposed planning berms. Include any appurtenant structures (e.g. berms, reinforcement, cut-off walls, drains, relief wells) necessary for reliable performance. Include the stream bank (to the stream bottom) and any other pertinent features, such as roads or trails. PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 9643 (2) Show, label, and dimension the levee prism (see Figure 1). The prism is the minimum analytical cross section that, given site-specific soil conditions, satisfies all applicable design criteria with regard to seepage and slope stability, as defined in EM 1110–2–1913 and ETL 1110–2–569. In addition, if the USACE District levee design standards exceed the minimums defined in EM 1110–2–1913, or conditions warrant, the USACE District may require a larger prism. The prism must also satisfy the requirements of any other applicable standard. For example, some USACE District projects adhere to the Code for Utilization of Soil Data for Levees, Mississippi River Commission, Vicksburg, Mississippi, April 1947, applicable to Mississippi River and Tributaries levees. The determination and documentation of site-specific soil conditions shall be consistent with the requirements and procedures outlined in EM 1110–2–1913, and must be confirmed by the District. The prism shall assume loading to the top of the structure; or, where loading to top of structure is not possible, maximum possible loading. Note: variance approval is unlikely where the analytical prism is equal to or larger than the existing levee cross section. (3) Show, label, and dimension the project right-of-way. (4) Show to-scale, annotated soil profiles, to an appropriate depth but not less than 20 feet below the levee toe. The determination and documentation of site-specific soil conditions shall be consistent with the requirements and procedures outlined in EM 1110–2– 1913. (5) Show, label, and dimension the extent of the requested Variance Zone and the remaining Vegetation-Free Zone. (6) Show, label, and dimension any structural modifications proposed in conjunction with existing or proposed vegetation. (7) Include a graphic velocity profile, on the waterside, indicating flow rates at pertinent water surface elevations, including the design-event, the flood of record, and top-of-structure. (8) Indicate the normal water elevation. For variance purposes, the normal water elevation is that below which riparian terrestrial plant species are unable to thrive, due to the frequency and duration of inundation. (9) Indicate the Ordinary High Water Mark. The Ordinary High Water Mark is used to establish waterway boundaries, it is a regulatory term defined in ETL 1110–2–571 and in the Code of Federal Regulations (CFR)—33 CFR Part 328.3 (e). E:\FR\FM\17FEN1.SGM 17FEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 9644 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices (10) List the dominant plant species likely to occupy the proposed variance zone: include those known to be the largest (in cross-sectional crown area) and to have the most extensive root systems. Cite source(s) used for information on plant characteristics. (a) Of these species, select the one with the most extensive likely root system: this will often be the species with the largest cross-sectional crown area at maturity. If two species have the most extensive likely root system (one for depth and one for spread) select both. (b) Develop a cross-sectional illustration of the selected species: if two species were selected, the illustration shall show the larger of the two, with a composite root system showing the complete root systems of both. The entire individual (or composite) shall be shown to-scale, at maturity (or, if different, at the maximum maturity to be permitted under the vegetation management plan), as developed in-the-open, under local conditions (e.g. climate, soils, and moisture conditions)—and shall clearly show the typical extent and character of the mature root system, truncated at the point where roots are no greater than 0.5 in. in diameter. Root depth assumptions must be developed specific to species and local conditions. Unless reliable information to the contrary is presented, it shall be assumed that roots greater than 0.5 in. in diameter will extend to the edge of the natural canopy of the mature tree or shrub. The ATR team will determine the acceptability of information on a case-by-case basis. (c) Place the completed illustration of this individual in the cross-section drawing(s). If specific planting locations are not known, then place an instance of the illustration, centered, on both the upper and lower boundary line of the proposed variance area. If the distance between the two is such that the illustrated root systems do not meet or overlap, then place one or more additional illustrations between the two. In the cross section below each of these illustrations, show the potential pit, as an arc (as shown in Figure 2b.), centered under the trunk of each illustrated tree. c. For each levee reach, provide representative, appropriately-scaled photographs both plan view (aerial) and cross-sectional (oblique angle photos taken from ground level looking towards the cross-sectional view) of the levee clearly showing existing conditions. d. Provide details of any structural measures (such as armoring or overbuilt sections) intended to preserve system reliability and resiliency by preventing or mitigating vegetation impacts. VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 5. Provide the following analyses illustrating that the changes proposed will result in conditions consistent with the criteria in PGL Paragraph 6.d. of this policy. Include graphics, text, and other information (e.g. construction materials, methods, and standards) as needed to clearly support conclusions. Analyses must show that the levee prism (or floodwall) remains intact and consistent with the design and performance intent of the USACE design standards detailed in EM 1110–2–1913 (EM 1110–2–2502 and/or EC 1110–2–6066 (with consideration of ETL 1110–2–575) for floodwalls) and ETL 1110–2–569. a. Cross section analysis. The crosssection drawing(s) must demonstrate the following. (1) No significant roots (those greater than 0.5 in. in diameter) will enter the levee prism or approach within 8 feet of structures critical to performance, such as drains or seepage-cutoff walls. (2) No tree-overthrow pit will penetrate the levee prism. The assumed pit/mound is illustrated in Figure 2a and, in plan-view, is less than a full circle; however, because the tree may fall in any direction, the potential pit must be assumed to be a full circle. Unless reliable information to the contrary, acceptable to the ATR team, is available for a specific situation, the dimensions provided in Figure 2 shall be used. These dimensions, which are consistent with USACE observation and experience, were derived from field data presented in the following paper: Clinton, B.D. and C.R. Baker. 2000. ‘‘Catastrophic windthrow in the southern Appalachians: characteristics of pits and mounds and initial vegetation responses.’’ Forest Ecology and Management 126:51–60. (3) No roots or tree-overthrow pit will significantly impact the function of any appurtenant structure, such as those designed to control seepage. b. Hydraulic analyses must demonstrate the following, assuming worst-case combinations of flow, elevation, hydraulic roughness, duration, and velocity. Analysis must include the full range of flows encompassing the lowest levee-toe elevation to the highest top-of-levee elevation within the variance reach. Generally, the worst-case hydraulic condition results from a high-flow/lowtailwater-elevation combination. However, a full range of flow/tailwater combinations should be analyzed to ensure that the worst-case condition is accounted for. The worst-case size and density of vegetation must also be considered, assuming the highest annual crown foliage density. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 (1) The overall level of flood risk reduction and reliability of the system must be maintained. Channel geometry and roughness changes shall result in no increase in water surface elevations for the required range of flows, as demonstrated by a graphic and a tabular summary of changes in water surface elevation and velocity that extends sufficiently upstream, because hydraulic impacts are typically transmitted upstream. If an increase in water surface elevations or velocities cannot be avoided, they must be mitigated. (2) Erosion and scour, associated with standing vegetation, will not impact the levee prism. This analysis should utilize an appropriate methodology, such as application of an adapted bridge scour model or 2D/3D hydraulic design model, with sediment transport, that shall provide a quantitative assessment of the maximum extent of erosion and local scour potential. This analysis shall provide an estimate of the maximum extent of erosion and scour, which shall be illustrated in the cross-section drawing(s). This assessment shall cover long-term trends as well as event-driven scour/erosion. (3) In the event of waterside tree overthrow, subsequent erosion and scour at the overthrow site will not impact the levee prism. Analyses must consider assumed pit/mound topography (as illustrated in Figure 2a) at all possible points on the variance cross section, determining the worstcase orientation to flow and the resulting extent of erosion and scour. This analysis should utilize an appropriate methodology, such as application of an adapted bridge scour model or 2D/3D hydraulic design model, with sediment transport, that considers the erosion mechanisms and local scour potential. This analysis shall provide an estimate of the maximum extent of erosion and scour, which shall be illustrated in the cross-section drawing(s). c. Geotechnical analyses or review must determine that the levee prism, defined in submittal requirement in Paragraph 4.b.(2) (above), is sufficiently buffered from vegetation impacts. d. Structural analyses must determine that floodwalls and other non-earthen structures are sufficiently buffered from vegetation impacts and that any proposed structures will function as intended. e. Analysis must find that access is retained, consistent with the intent of Paragraph 6.d of the main PGL. 6. Provide the most recent Routine Inspection Report and Periodic Inspection Report completed by the USACE district. E:\FR\FM\17FEN1.SGM 17FEN1 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices 7. Provide a summary of levee performance history for all significant flood events. Indicate the levee’s authorized capacity (formerly referred to as the design flood or design water surface elevation) and, for each event, the year of occurrence, event probability (e.g., the 0.2% flood), flood duration, and description of any floodfighting challenges, failures, and outcomes. 8. Provide a vegetation management plan, detailing (1) the vegetation conditions to be maintained, (2) how and on what schedule the maintenance will be performed, and (3) how the boundaries of the vegetation variance zone will be clearly identifiable, on site, for maintenance and inspection purposes. The vegetation management plan shall also stipulate that all grades and cross sections shall be maintained as approved and that any reduction to grade or cross section will be restored in a timely fashion. 9. Provide any National Environmental Policy Act (NEPA), Endangered Species Act (ESA), or any other environmental compliance documentation that the district determines is required to conduct the review. Identify the pertinent paragraphs or sections. 10. Provide excerpts of the current project operations and maintenance (O&M) manual as requested as supplemental information for the review process. 11. Provide other information, as appropriate to specific conditions. 12. Provide the levee sponsor’s primary point of contact (POC) for this request. GLOSSARY OF TERMS USED IN FIGURES 1–3 mstockstill on DSK4VPTVN1PROD with NOTICES Bank (Figure 1) The bank is the ground line between the bottom and the top of the channel. When there is no significant horizontal separation between the top of the bank and the waterside levee toe, such that the bank slope and the waterside levee slope are essentially continuous, then the bank becomes critical to levee reliability, as significant erosion of the bank may result in a loss of prism. Corridors (Figure 1) Corridors provide a functional platform from which to conduct operations and maintenance activities, especially those involving major improvements or repairs. In addition, the landside corridor provides critical access during floodfighting operations, VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 especially under conditions that prevent adequate access from the crown. Crown (Figure 1) The crown is the level top of the levee design cross section. It serves as the primary means of access for routine operations, but during major flood events may not be useable due either to saturation-induced reduction in stability or to floodfighting measures such as sandbagging. Design Cross Section (Figure 1) The design cross section consists of the prism plus any additional material provided to increase crown width and/ or flatten slopes in order to reduce erosion or improve accessibility. Additional material and placement methods are often similar or identical to that used for the prism. While accessibility may be the purpose, the additional material also increases levee resiliency. A levee that meets USACE design standards has a design cross section that is equal to or larger than the prism. Pit/Mound Topography (Figure 2) The topography that results from the overturning of a tree; it includes the pit, the mound (or rootball) and the overturned tree. Planting Berm—Landside (Figure 3) Additional cross section required to accommodate desired vegetation. It preserves access and protects the prism from root-related damage. Analyses results may require cross section in excess of the prescribed minimums. To serve as compensation for lost landside access, the planting-berm crown must support all vehicular access necessary to inspection, maintenance, and floodfighting. Planting Berm—Waterside (Figure 3) Additional cross section required to accommodate desired vegetation. It preserves access and protects the prism from root-related damage. Analyses results may require cross section in excess of the minimums. Analysis must show no unacceptable impacts to channel capacity. The berm crown must support all vehicular access necessary to conduct inspection, maintenance, and floodfighting. Prism (Figure 1) The prism is the portion of the levee identified as the minimum acceptable cross section as defined in Paragraph PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 9645 4.b. 2 (above, Enclosure 3), for a given water elevation, such as the design flood event. Prism dimensions, slopes, materials, and placement methods are designed to meet standards that will give reasonable assurance of successful performance. The prism is not typically designed to control underseepage. Setbacks (Figure 1) Setbacks are a sustainability measure for both the levee and environment. Setbacks are an important consideration that should be addressed in the planformulation process. While they are critical to sustainability of a floodplain, they are not specifically prescribed in the levee design manual (EM 1110–2– 1913). The waterside setback provides space in which to maintain a measure of floodplain function and riparian habitat: this serves the environment, but also protects the levee from pressures to develop critical riparian habitat. Additionally, in-place riparian habitat serves as a protective buffer between the levee and erosive flows. The landside setback reserves space for future levee improvements or repairs: while this space is in reserve it may be used as a recreational greenway and/or a landscape buffer between the levee and adjacent development. Slopes (Figure 1) Levee slopes, among other considerations, must be sufficiently accessible to facilitate effective operation and maintenance activities that might be impractical on steeper prism slopes. A slope may have a spatial/functional relationship coincident with a bank (see Figures 1a. and 1b., respectively). Toe (Figure 1) The landside toe is generally the point at which the levee slope intersects with adjacent level ground. The waterside toe is generally the point on the waterside slope at which the elevation is equal to that of the landside toe. This is a general definition and there are nuances and exceptions. Vegetation–Free Zone The vegetation free zone (VFZ) includes the ground on, or within 15 feet of, the levee and its appurtenant structures. The VFZ shall remain free of any vegetation other than grasses, except as allowed in ETL 1110–2–571 and USACE vegetation variance policy. BILLING CODE 3720—58–P E:\FR\FM\17FEN1.SGM 17FEN1 VerDate Mar<15>2010 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices 19:08 Feb 16, 2012 Jkt 226001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4725 E:\FR\FM\17FEN1.SGM 17FEN1 EN17FE12.008</GPH> mstockstill on DSK4VPTVN1PROD with NOTICES 9646 VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4725 E:\FR\FM\17FEN1.SGM 17FEN1 9647 EN17FE12.009</GPH> mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices VerDate Mar<15>2010 Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices 19:08 Feb 16, 2012 Jkt 226001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4725 E:\FR\FM\17FEN1.SGM 17FEN1 EN17FE12.010</GPH> mstockstill on DSK4VPTVN1PROD with NOTICES 9648 VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4725 E:\FR\FM\17FEN1.SGM 17FEN1 9649 EN17FE12.011</GPH> mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices Federal Register / Vol. 77, No. 33 / Friday, February 17, 2012 / Notices [FR Doc. 2012–3701 Filed 2–16–12; 8:45 am] BILLING CODE 3720–58–C VerDate Mar<15>2010 19:08 Feb 16, 2012 Jkt 226001 PO 00000 Frm 00031 Fmt 4703 Sfmt 9990 E:\FR\FM\17FEN1.SGM 17FEN1 EN17FE12.012</GPH> mstockstill on DSK4VPTVN1PROD with NOTICES 9650

Agencies

[Federal Register Volume 77, Number 33 (Friday, February 17, 2012)]
[Notices]
[Pages 9637-9650]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3701]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Process for Requesting a Variance From Vegetation Standards for 
Levees and Floodwalls; Additional Filings

AGENCY: United States Army Corps of Engineers, Department of Defense.

ACTION: Notice.

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SUMMARY: The U.S. Army Corps of Engineers (USACE) is updating the 
process for requesting a variance from vegetation standards for levees 
and floodwalls to reflect organizational changes and incorporate 
current agency-wide review processes.

DATES: Written comments must be submitted on or before April 17, 2012.

ADDRESSES: You may submit comments, identified by docket number COE-
2010-0007 by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: tammy.conforti@usace.army.mil. Include the docket number, 
COE-2010-0007 in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CE, Tammy Conforti, 
441 G Street NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2010-0007. 
All comments received will be included in the public docket without 
change and may be made available on-line at http://www.regulations.gov, 
including any personal information provided, unless the commenter 
indicates that the comment includes information that is Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI, or otherwise protected, through regulations.gov or email. The 
regulations.gov web site is an anonymous access system, therefore, if 
you wish to provide your identity or contact information it must be 
included in the text of your comment. If you send an email directly to 
USACE, your email address will be automatically captured and included 
as part of the comment that is placed in the public docket and made 
available on the Internet. If you submit an electronic comment, we 
recommend that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification, we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov. All documents in the 
docket are listed. Although listed in the index, some information is 
not publicly available, such as CBI or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Tammy Conforti, Levee Safety Program 
Manager, Headquarters, USACE, Washington, DC at 202-761-4649.

SUPPLEMENTARY INFORMATION: The variance request process was developed 
to implement Section 202(g) of the Water Resources Development Act 
(WRDA) of 1996. Consistent with our regulations for implementing NEPA 
for our Civil Works programs, we have included a Finding of No 
Significant Impact (FONSI) for review.
    To comply with the requirements of the National Environmental 
Policy Act, a draft environmental assessment (EA) has been prepared. A 
copy of the draft EA is available at www.regulations.gov in docket 
number COE-2010-0007. If you would like to submit comments on the draft 
EA, you must do so before the end of the comment period specified in 
the DATES section above.
    The current commenting period is the second solicitation for 
comments on the revised Process for Requesting a Variance from 
Vegetation Standards for Levees and Floodwalls. The first comment 
period was open from 9 February 2010 to 26 April 2010. USACE reviewed 
and considered 561 comments from 110 separate organizations and 
individuals. The USACE response to these comments received can be found 
at http://www.nfrmp.us/guidance.cfm.

    Authority: We are proposing to issue this Policy Guidance Letter 
under the authority of 33 U.S.C. 701n.

    Dated: February 7, 2012.
James C. Dalton,
Chief, Engineering and Construction, Directorate of Civil Works.

Policy Guidance Letter (PGL)--Process for Requesting a Variance From 
Vegetation Standards for Levees and Floodwalls

    1. Purpose. This policy guidance letter (PGL) revises the 
procedures for obtaining a variance from U.S. Army Corps of Engineers 
(USACE) mandatory vegetation-management standards contained in Engineer 
Technical Letter (ETL) 1110-2-571--``Guidelines for Landscape Planting 
and Vegetation Management at Levees, Floodwalls, Embankment Dams, and 
Appurtenant Structures'' pursuant to Section 202(g) of the Water 
Resources Development Act (WRDA) of 1996. This PGL also includes 
timeframes and options for existing variances. These procedures align 
with the USACE Levee Safety Program goals of ensuring life safety as a 
top priority and applying consistent processes to make well-informed 
decisions. This PGL supersedes the existing regional variance policy 
and process contained in Engineer Regulation (ER) 500-1-1 and Engineer 
Pamphlet (EP) 500-1-1 (including Appendix E), dated 30 September 2001, 
and will serve as the applicable guidance until this process is 
incorporated into a USACE engineer publication.
    2. Applicability. This PGL applies to all Headquarters USACE 
(HQUSACE) elements, Major Subordinate Commands (MSCs), districts, and 
field operating activities having responsibility for Civil Works 
projects. This policy applies to levees within the USACE Levee Safety 
Program, including those (1) USACE operated and/or maintained; (2) 
federally authorized, typically USACE constructed, and locally operated 
and maintained; and (3) locally constructed and locally operated and 
maintained, but associated with the USACE Rehabilitation and Inspection 
Program (RIP) (also known as the Pub. L. 84-99 program).
    3. References.
    a. Engineer Regulation (ER) 500-1-1, Emergency Employment of Army 
and Other Resources, Civil Emergency Management Program, 30 September 
2001.

[[Page 9638]]

    b. Engineer Circular (EC) 1110-2-6066, Design of I-Walls, 1 April 
2011.
    c. Engineer Circular (EC) 1165-2-209, Civil Works Review Policy, 31 
January 2010.
    d. Engineer Pamphlet (EP) 500-1-1, Emergency Employment of Army and 
Other Resources, Civil Emergency Management Program--Procedures, 30 
September 2001.
    e. Engineer Manual (EM) 1110-2-1913, Design and Construction of 
Levees, 30 April 2000.
    f. Engineer Manual (EM) 1110-2-1601, Hydraulic Design of Flood 
Control Channels, 30 June 1994.
    g. Engineer Manual (EM) 1110-2-2502, Retaining and Flood Walls, 29 
September 1989.
    h. Engineer Technical Letter (ETL) 1110-2-575, Evaluation of I-
walls, 1 September 2011.
    i. Engineer Technical Letter (ETL) 1110-2-571, Guidelines for 
Landscape Planting and Vegetation Management at Levees, Floodwalls, 
Embankment Dams, and Appurtenant Structures, 10 April 2009.
    j. Engineer Technical Letter, (ETL) 1110-2-569, Design Guidance for 
Levee Underseepage, 1 May 2005.
    k. Memorandum, HQ USACE (CECW-HS), Subject: Policy for Development 
and Implementation of System-wide Improvement Frameworks (SWIFs), 29 
November 2011.
    4. Background. The purpose stated in Section 202(g) of WRDA of 
1996, is ``to provide a coherent and coordinated policy for vegetation 
management for levees'' so as to ``address regional variations in levee 
management and resource needs.'' In general, the resulting policy set 
forth in ER 500-1-1 allowed the levee sponsor, meeting all eligibility 
criteria for rehabilitation assistance pursuant to 33 U.S.C. 701n (Pub. 
L. 84-99), to seek a variance to USACE vegetation standards when such a 
variance would preserve, protect, and/or enhance natural resources and/
or protect rights of Tribal Nations. However, it was required that the 
safety, structural integrity, and functionality of the levee, in 
addition to accessibility for inspection and floodfighting purposes be 
retained.
    5. Definitions. For use in this document:
    a. A levee consists of one or more earthen embankment or floodwall 
segments.
    b. A levee system consists of one or more segments of earthen 
embankment or floodwall, and all appurtenant structures (such as 
closures, berms, pumping stations, culverts, and interior drainage) 
which are interconnected and necessary to reasonably reduce the 
potential of floodwater entering a defined area.
    c. A variance is defined as alternative vegetation management 
standards to be applied to a levee system or portion thereof that 
provide for the same levee functionality as intended in ETL 1110-2-571.
    6. Eligibility Requirements for Requesting a Vegetation Variance.
    a. For consideration of a vegetation variance that preserves, 
protects, and/or enhances natural resources, the requester must 
demonstrate that a variance is the only reasonable means to achieve the 
following criteria:
    (1) Comply with applicable law concerning the environment, cultural 
or historic preservation; or
    (2) Protect the rights of Tribal Nations, pursuant to treaty, 
statute, or Executive Order; or
    (3) Address a unique environmental consideration, such as to 
maintain sensitive species populations and to preclude the need for 
future federal listings under the Endangered Species Act (ESA), 
endorsed by the National Marine Fisheries Service (NMFS) or U.S. Fish 
and Wildlife Service (USFWS).
    b. Levee systems as described below do not have to meet the 
criteria established in Paragraph 6.a. in order to be eligible to 
request a variance:
    (1) Existing levees, federal or non-federal, in which it can be 
demonstrated through written documentation that there is an existing 
vegetation variance or vegetation deviation agreement between the local 
USACE District and the levee sponsor prior to the date of this 
memorandum; or,
    (2) Levee systems for which a variance is requested for a planting 
berm.
    c. A USACE District may submit a vegetation variance request for 
the following situations (Note: For Paragraphs 1-3 below, criteria 
established in Paragraph 6.a. do not have to be met and the USACE 
District must have concurrence from the levee sponsor):
    (1) Federally authorized levees that have advanced into the 
preconstruction, engineering, design (PED) or construction phase of 
development, but for which USACE has not provided written notice of 
their completion and of the levee sponsor's duty to begin operation, 
maintenance, repair, rehabilitation, and replacement as of the date of 
this memorandum; or,
    (2) Existing federally authorized levees in which it can be 
demonstrated that vegetation was previously part of the original design 
prior to the date of this memorandum or,
    (3) Existing federally authorized levees in which the existing 
operations and maintenance (O&M) manual allows vegetation within the 
vegetation-free zone or,
    (4) Levee systems for which USACE has operations and/or maintenance 
responsibilities; or,
    (5) In areas with ESA considerations or where the rights of Tribal 
Nations pursuant to treaty, statute, or Executive Order may be 
impacted, the USACE District may submit, in advance of actual need, 
cross-sections for Public Law 84-99 repairs that include vegetation, 
for a specific levee system. The submittal must:
    (a) Have concurrence from the levee sponsor and, if different from 
the levee sponsor, the maintaining entity and,
    (b) Have been shared with and commented on by the appropriate USFWS 
and/or NMFS office in order to anticipate measures that are likely to 
adequately address impacts to listed species and critical habitat in 
order to streamline formal consultation when repairs are to be 
implemented.
    d. In addition to the requirements in Paragraph 6.a., all 
vegetation variance requests must also demonstrate that the following 
are retained:
    (1) Structural integrity, and functionality of the levee system; 
and,
    (2) Accessibility for operations, maintenance, repair, inspection, 
monitoring, and floodfighting of the levee system.
    7. Process. A request for a vegetation variance can originate from 
a USACE District (see Paragraph 6.c.) or a levee sponsor. In cases 
where a levee sponsor is considering applying for a vegetation 
variance, it is recommended that the levee sponsor contact their 
respective USACE District and review minimum requirements as set forth 
in Enclosures 1-3. Early coordination between USACE and the levee 
sponsor is strongly recommended because it will aid in focusing efforts 
and minimizing costs. Once the vegetation variance request has been 
submitted, the following describes the process USACE will follow to 
review the request.
    a. The USACE District shall ensure timely coordination with 
appropriate federal and state agencies and Tribal Nations concerning 
regional environmental, cultural, and historic considerations 
throughout the vegetation variance request process. The USACE District 
shall notify the appropriate regional offices of the federal resource 
agencies and Tribal Nations in writing within 30 days upon initiation 
of a vegetation variance request or when a request has been received.

[[Page 9639]]

    b. The USACE District (along with the levee sponsor if appropriate) 
shall initiate timely coordination upon initiation of a vegetation 
variance request with the MSC and the Vegetation Variance Lead for the 
Risk Management Center (RMC) to assure that the review process is well 
coordinated and allows for timely feedback on submittal requirements. 
This early coordination in the development of the variance request is 
intended to appropriately scale the scope of the request and/or 
identify conditions for which variance approval is unlikely.
    c. The USACE District Levee Safety Officer (LSO) shall review the 
variance request for completeness and compliance and recommend 
initiation of an Agency Technical Review (ATR) to the RMC.
    d. The RMC shall lead and manage the ATR for each variance request. 
HQUSACE will fund the ATR. The timeline for the ATR will depend on the 
complexity of the request, but will not exceed 90 days after the ATR 
team receives the final request package unless special circumstances 
warrant additional time. The ATR will be documented and certified as 
per requirements in EC 1165-2-209. Final ATR documentation shall be 
part of the variance request package. The following are the typical 
disciplines that will be included on the ATR team: geotechnical, 
geological, hydraulics/hydrology, environmental/biological sciences, 
emergency management, operations/maintenance, and landscape 
architecture. Other disciplines will be added to the ATR team as needed 
and based on the variance request.
    e. Following completion of the ATR, the USACE District Commander 
shall either endorse or not endorse the request and provide the 
rationale for the recommendation. If the request is endorsed, the 
District Commander shall submit the request package through the MSC LSO 
to the MSC Commander. The USACE MSC LSO shall review the request and 
recommend to the MSC Commander, either for or against endorsement. The 
USACE MSC Commander shall either endorse or not endorse the request and 
provide the rationale for the recommendation. If endorsed, the USACE 
MSC Commander shall submit the request to HQUSACE, via the Regional 
Integration Team (RIT) process, for approval.
    f. The HQUSACE LSO, or the HQUSACE LSO designee, will be the final 
approving official for the request and will document the basis for the 
decision.
    g. The USACE District shall serve as the main point of contact for 
coordination with the levee sponsor throughout the variance request 
process, including providing the levee sponsor with documentation of 
final decision of the vegetation variance request.
    h. All final documentation for the vegetation variance request 
shall be uploaded by the USACE District to the National Levee Database 
(NLD).
    i. Upon final approval but prior to implementation of the variance, 
the USACE District and the requester shall sign a Vegetation Variance 
Agreement, based on the template at Enclosure 2. The USACE District 
shall involve the District Office of Counsel in the drafting of the 
agreement. The agreement can be approved and executed at the District 
level unless changes to the template are made that would affect the 
terms of the approved variance. For levee systems with multiple levee 
sponsors, each levee sponsor must sign the agreement and certificate of 
authority.
    j. During inspections, levees will be rated for eligibility for 
federal rehabilitation assistance under Public Law 84-99 in accordance 
with the levee inspection checklist and requirements set forth in an 
approved variance(s). Levee systems with an Acceptable or Minimally 
Acceptable rating will remain eligible for federal rehabilitation 
assistance under Public Law 84-99, including any features associated 
with an approved variance such as planting berms and overbuilt sections
    k. The associated vegetation management plan and approved variance 
shall be added to the levee's operation and maintenance (O&M) manual as 
an addendum.
    8. Vegetation Variance Request Submittal Requirements. Submittal 
requirements are detailed in Enclosure 3.
    9. Special Considerations. The following points should be 
considered prior to initiating a vegetation variance request.
    a. This vegetation variance policy does not apply to embankment 
dams and their appurtenant structures, channels, or shore-line or 
river-bank protection systems such as revetments, sand dunes, and 
barrier islands.
    b. New federally authorized cost-shared levee projects shall be 
designed to meet the current vegetation management standards. It should 
be noted that landside planting berms may be incorporated into a new 
levee project design without a vegetation variance request.
    c. Regional variances or variances that cover all levees within a 
geographical area will not be issued. Vegetation variances will be 
considered only for individual levee systems or portions thereof. 
However, regional conditions, with regard to soils, local climate and 
vegetation, and other pertinent factors, will be taken into 
consideration.
    d. To ensure the ability to implement floodfighting activities, 
such as placement of sandbags or other temporary floodfight measures 
near the waterside crown, and to see areas of distress on the landside 
during a flood event, typically the upper third of the waterside slope, 
the crown, the landside slope, and within 15 feet of the landside toe 
(subject to preexisting real estate interest) of the levee needs to 
remain vegetation free, as defined in ETL 1110-2-571. Any vegetation 
variance requests proposed for these areas will be carefully evaluated 
to ensure requirements in Paragraph 6 are met.
    e. The types of approvable vegetation variances near floodwalls may 
be very limited, especially for I-walls of concern as identified per 
Paragraph 3.h. For floodwalls, the landside and waterside corridors are 
areas of particular concern due to potential impacts of root damage to 
joints, drains, and foundations, as well as, acute tree-overturning 
damage (breakage, destabilization and displacement). Any vegetation 
variance requests proposed for areas containing floodwalls will be 
carefully evaluated to ensure requirements in Paragraph 6 are met.
    f. The vegetation variance process is not a mechanism to validate 
conditions that have developed as a result of inadequate levee 
operations and maintenance.
    g. Past USACE inspection reports that did not identify noncompliant 
vegetation as a deficiency do not constitute an existing vegetation 
variance or approved deviation.
    h. In the case of a levee sponsor seeking initial eligibility for 
federal rehabilitation assistance under Public Law 84-99, prior to 
acceptance, the levee system must meet all eligibility requirements 
including current vegetation standards or an approved vegetation 
variance must be obtained if criteria in Paragraph 6 are met.
    i. To avoid duplication of effort, vegetation variance applications 
involving planting berms that are part of a study or PED should take 
advantage of the analysis and documentation review performed as part of 
the authorized project (see Enclosure 3, Figure 3).
    j. If implementation of a vegetation variance will constitute a 
modification or is part modification of a federally authorized levee, 
then the levee sponsor must also seek approval under 33 U.S.C. 408 as 
part of the vegetation variance

[[Page 9640]]

request. The levee sponsor should work with the USACE District to 
ensure that the variance request satisfies the requirements of the 
current guidance on the implementation of 33 U.S.C. 408.
    k. USACE District costs for processing or submitting a vegetation 
variance request shall be funded by the appropriate account based on 
authorization of the levee system (Operations and Maintenance (O&M) 
General, Inspection of Completed Works, or Flood Control and Coastal 
Emergencies).
    l. For instances in which a request for a vegetation variance 
accompanies or is part of other actions that require the execution of 
an agreement between the levee sponsor and USACE (e.g., modifications 
under 33 U.S.C. 408 or Public Law 84-99 repairs), a single agreement 
that satisfies the requirements for each of the actions should be used. 
In such cases, the template agreement at Enclosure 2 need not be used, 
but the substantive terms from the template should be incorporated into 
the agreement that is signed. The USACE District shall ensure 
coordination with USACE District Office of Counsel on final agreements.
    m. The process outlined in this memorandum may be implemented as 
part of a system-wide improvement framework (SWIF) per Paragraph 3.k. 
Enclosure 4 contains scenarios for the vegetation variance process and 
SWIFs.
    10. Timeframes for Existing Vegetation Variances or Other 
Vegetation Deviations. Deviation from the national standards as defined 
in ETL 1110-2-571 is permitted only through a vegetation variance 
approved by the HQUSACE LSO via the process described herein. USACE 
recognizes that areas with sensitive environmental considerations will 
require planning and coordination; therefore, the following provisions 
are being provided:
    a. For levees meeting the requirements of Paragraph 6.b.1, the 
levee sponsor will have one year from the date of this memorandum to 
submit a letter of intent to their respective USACE District expressing 
intent to either submit a vegetation variance request or develop a 
system-wide improvement framework (SWIF) as per Paragraph 3.k.
    (1) If the decision is to submit a vegetation variance, the levee 
sponsors will have one additional year to submit a vegetation variance 
request. Until the vegetation request is submitted and the review 
process is complete, the levee system will continue to be inspected in 
accordance to the existing vegetation variance or other vegetation 
deviation for determining Public Law 84-99 rehabilitation assistance 
eligibility.
    (2) If the decision is to develop and implement a SWIF, procedures 
in Paragraph 3.k. shall be followed. For levee sponsors already 
implementing an agreed SWIF, no letter of intent is required.
    b. For levee sponsors with existing vegetation variances or 
deviations that do not submit a letter of intent, vegetation variance 
request, or SWIF by the required timelines, the existing vegetation 
variances, agreements, or other deviations applied to their levees may 
no longer be considered valid. The USACE District should verify with 
the levee sponsors if they wish to continue participating in Public Law 
84-99. If the levee sponsor does choose to continue their 
participation, the USACE District LSO will inform the levee sponsor via 
letter (copy furnished to the MSC and HQUSACE LSO) of the vegetation 
management standards to be applied to that levee.
    c. For levees that meet the requirements of Paragraph 6.c.2 and/or 
6.c.3 and currently have an Acceptable or Minimally Acceptable 
inspection rating, excluding the vegetation designed into the levee by 
USACE and/or allowed by USACE in the O&M manual (in other words the 
levee has been properly maintained in accordance to the current O&M 
manual), the USACE District will have one year from the date of this 
memorandum to submit a letter to the MSC LSO expressing intent to 
either submit a vegetation variance request or pursue a plan to meet 
ETL 1110-2-571. It must be demonstrated that the letter of intent was 
coordinated with the levee sponsor(s). For levees that meet the 
requirements of Paragraph 6.c.2 and/or 6.c.3 and currently have an 
Unacceptable inspection rating, the levee sponsor must correct the 
unacceptable deficiencies, excluding the vegetation designed into the 
levee by USACE and/or allowed by USACE through the O&M manual, prior to 
the USACE District taking action to seek a vegetation variance or plan 
to meet ETL 1110-2-571. Should the levee sponsor seek a SWIF per 
Paragraph 3.k, then the USACE District shall ensure that its action to 
pursue a variance or other means to meet ETL 1110-2-571 is incorporated 
into the comprehensive SWIF process.
    d. For levees meeting the requirements of Paragraph 6.c.1, 
depending on the status of the project phase, USACE Districts must 
either submit vegetation variance request or pursue a plan to meet ETL 
1110-2-571 as soon as possible.
    e. For levee systems operated and maintained by USACE, the USACE 
District will have one year from the date of this memorandum to submit 
a letter to the MSC LSO expressing intent to either submit a vegetation 
variance request or pursue a plan to meet ETL 1110-2-571.
    f. USACE Districts should copy furnish all letters of intent to the 
HQUSACE LSO.
    11. Environmental Compliance. USACE is responsible for assuring 
compliance with all applicable environmental requirements before a 
decision can be made on a vegetation variance request. As a condition 
of the levee sponsor choosing to participate in Public Law 84-99, the 
levee sponsor is responsible for providing all background studies, 
data, and other information required by USACE to complete the 
environmental compliance processes under the National Environmental 
Policy Act (NEPA), ESA, and any other applicable environmental resource 
protection statute (except for those instances in which a USACE 
District is the proponent of a variance as provided in Paragraph 6.c.). 
The documentation must analyze, as alternatives, the effects of the 
implementation of the proposed vegetation variance and the 
implementation of the national standards. The levee sponsor must commit 
to implementation of any measures (such as monitoring, reasonable and 
prudent alternatives, etc.) needed to comply with ESA or other legal 
requirements before the levee sponsor may participate, or continue 
participation, in the Public Law 84-99 program and must commit to 
bearing the costs for implementation of these measures.
    12. Submittal Process for New Vegetation Related Science and 
Technology. For instances in which an entity would like to submit new 
science or technology related to vegetation for USACE consideration, 
submitters must ensure that any submitted document produced from 
research be peer reviewed prior to following the submittal process 
described below. Documents submitted to USACE through this process must 
be submitted by the author(s) of the documents. Submittal packages 
should be sent to the US Army Engineer Research and Development Center 
(ERDC), 3909 Halls Ferry Road, Vicksburg, MS, 39180, Point of Contact 
(POC): To Be Determined (TBD).
    a. Submittal of a peer-reviewed final document must include the 
following:
    (1) Cover letter by the submitter requesting USACE consideration 
for

[[Page 9641]]

identified relevant areas of application within USACE existing 
policies; and,
    (2) Documentation of the peer review demonstrating that a standard 
procedure for peer review was followed; and,
    (3) Relevant documents for the science and technology submitted.
    b. Once a submittal package is received, the responsibilities of 
ERDC are as follows:
    (1) Inform HQUSACE (CERD) of receipt of the submittal; and,
    (2) Review the submittal package to ensure that peer review 
requirements have been met; and,
    (3) Review, evaluate, and summarize the methods, procedures, and 
results; and
    (4) Provide the ERDC evaluation and submittal package to HQUSACE 
within 60 days of receiving the submittal package.
    c. Once the ERDC review is received, the responsibilities of 
HQUSACE (CERD in coordination with applicable Communities of Practice) 
are as follows:
    (1) Review the ERDC summary and submittal documents for potential 
applicability within USACE; and,
    (2) Further coordinate with ERDC, if needed; and,
    (3) Provide a written response letter and the basis for the HQUSACE 
determination to the submitters within 60 days of receiving the ERDC 
evaluation.
    13. After vegetation variance request packages are reviewed through 
this process, results will be posted by the HQUSACE LSO to the Levee 
Safety Community of Practice page, on the Technical Excellence Network 
(TEN) at https://ten.usace.army.mil.
    14. The points of contact for this guidance are (TBD).

James C. Dalton, P.E., SES,
Chief, Engineering and Construction
Directorate of Civil Works

Enclosures:

    1. Submittal Checklist and Review and Approval Signature Sheet
    2. Vegetation Variance Agreement
    3. Submittal Requirements
    4. Scenarios and Timelines for Attaining Compliance with USACE 
Standards
    5. Scenarios of Responsibility for Pre-Existing Variances and 
Other Documented Deviations

Enclosure 1--Submittal Checklist

Vegetation Variance Request Submittal Checklist

    The items checked below are submitted herewith, consistent with the 
requirements outlined in Enclosure 3 (Vegetation Variance Request 
Submittal Requirements) of Policy Guidance Letter (PGL)--Process for 
Requesting a Variance from Vegetation Standards for Levees and 
Floodwalls, dated TBD.
    [ballot] (1) A general description of the levee system.
    [ballot] (2) A brief narrative describing the proposed vegetation 
variance.
    [ballot] (3) A brief narrative explaining why the proposed changes 
are necessary to address the criteria presented in PGL Paragraph 6.
    [ballot] (4) Detailed, annotated, plan and section drawings and 
photographs.
    [ballot] (5) All pertinent engineering analyses: cross-section, 
hydraulic, geotechnical, and structural, as needed.
    [ballot] (6) The most recent Routine Inspection Report and Periodic 
Inspection Report completed by the USACE District.
    [ballot] (7) A summary of levee system performance history for all 
significant flood events.
    [ballot] (8) A Vegetation Management Plan, detailing the conditions 
to be maintained.
    [ballot] (9) Any National Environmental Policy Act (NEPA), 
Endangered Species Act (ESA), or other environmental compliance 
documentation that the USACE District determines necessary to the 
review.
    [ballot] (10) Any requested excerpts of the current project O&M 
manual.
    [ballot] (11) Any other information, as appropriate to specific 
conditions.
    [ballot] (12) ATR team review documentation.
    [ballot] (13) The Requester's primary point(s) of contact (POCs) 
for this request, as follows.


------------------------------------------------------------------------
 
------------------------------------------------------------------------
NAME:                                     ..............................
ORGANIZATION:                             ..............................
TITLE:                                    ..............................
TELEPHONE:                                ..............................
E-MAIL ADDRESS:.........................  ..............................
------------------------------------------------------------------------

Enclosure 1--REVIEW AND APPROVAL SIGNATURE SHEET

SUBMITTED BY:
-----------------------------------------------------------------------

The (name of entity) (signature)
-----------------------------------------------------------------------
(full name, typed) (title, in full)
-----------------------------------------------------------------------
DATE

(If a USACE District is the submitter, additional levee sponsor 
signature blocks shall be added to ensure all levee sponsors concur. 
If a levee system has multiple levee sponsors, additional levee 
sponsor signature blocks shall be added for each levee sponsor's 
signature.)

REVIEWED BY:

U.S. Army Corps of Engineers, (insert name) District

-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

Levee Safety Officer
-----------------------------------------------------------------------
DATE

ENDORSED BY:

U.S. Army Corps of Engineers, Risk Management Center

-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

Leader, Agency Technical Review Team

-----------------------------------------------------------------------
DATE

ENDORSED BY:

U.S. Army Corps of Engineers, (insert name) District

-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

Commander
-----------------------------------------------------------------------
DATE

REVIEWED BY:

U.S. Army Corps of Engineers, (insert name) MSC

-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

-----------------------------------------------------------------------
DATE

Levee Safety Officer

ENDORSED BY:

U.S. Army Corps of Engineers, (insert name) MSC
-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

Commander
-----------------------------------------------------------------------
DATE

APPROVED BY:

U.S. Army Corps of Engineers, HQ

-----------------------------------------------------------------------
(signature)
-----------------------------------------------------------------------
(full name, typed)

Levee Safety Officer
-----------------------------------------------------------------------
DATE

Enclosure 2--VEGETATION VARIANCE AGREEMENT

Vegetation Variance Agreement

for

(enter the levee system name, location and ID number, as defined in the 
National Levee Database)

    I. Purpose. The purpose of this Agreement is to allow for specific 
and limited variance from US Army Corps of Engineers (USACE) vegetation 
standards, for the levee named above.
    II. Authority. This Agreement is made pursuant to the authority of 
Public Law 99, 84th Congress (33 U.S.C. 701n), as regulated by Title 
33, Code of Federal

[[Page 9642]]

Regulations, Sections 203 and 208.10, and as implemented by policy 
guidance letter, Subject: Policy Guidance Letter--Requesting a Variance 
from Vegetation Standards for Levees and Floodwalls, dated TBD.
    III. Applicability. This Agreement is applicable only to those 
portions of the above-named levee system that are identified as 
vegetation variance zones in the attached submittal drawings.
    IV. References. (Insert any references that are applicable, 
including the existing project cooperation agreement. This could 
include state law, county ordinances, Federal or state court documents, 
technical manuals, etc. References may be incorporated into this 
Agreement).
    V. Scope. A detailed description of the conditions proposed under 
this Agreement is provided in attachment (attach approved vegetation 
request package).

VI. Actions During and After Emergencies

    A. Definition of Emergency. For the purposes of application of this 
Agreement, the term emergency is defined as any situation as declared 
by the District Commander in which a levee is threatened with either 
failure or overtopping.
    B. Definition of Flood Fight. For the purposes of application of 
this Agreement, the term flood fight is defined as actions taken 
immediately before or during a flood to protect human life and reduce 
flood damages, such as evacuation, emergency sandbagging and diking, 
and providing assistance to flood victims.
    C. Conduct of Flood Fight Activities. During an emergency, any 
responsible party engaged in flood fight activities, to specifically 
include the USACE, the (list states, cities, or counties as necessary), 
and the levee sponsor may take whatever actions are necessary to 
preserve the structural integrity of the levee addressed by this 
Agreement. Actions necessary to preserve the structural integrity of 
the system may include removal of any and all vegetation on or near the 
levee or floodwall.
    D. Rehabilitation. Any levee repairs, modifications, or 
improvements following the emergency event shall be in accordance with 
current USACE vegetation management standards or the approved 
vegetation variance for the levee.

VII. Obligations of the Levee Sponsor

    A. The levee sponsor agrees to maintain the levee system in 
accordance with the attached approved vegetation variance and assume 
the responsibility for implementing and bearing the costs of any 
measures that are required for compliance with the ESA or any 
mitigation requirements that result from environmental compliance 
processes such as the NEPA or required permits.
    B. The levee sponsor shall hold and save the Government free from 
all damages arising from any and all activities associated with this 
Agreement.

VIII. Notices

    A. All notices, requests, demands, and other communications 
required or permitted to be given under this Agreement shall be deemed 
to have been duly given if in writing and delivered personally, given 
by prepaid telegram, or mailed by first-class (postage prepaid), 
registered, or certified mail, to the address provided.
    B. A party may change the address to which such communications are 
to be directed by giving written notice to the other parties in the 
manner provided in Paragraph C (below).
    C. Any notice, request, demand, or other communication made 
pursuant to this Article shall be deemed to have been received by the 
addressee at such time as it is personally delivered, or, seven 
calendar days after it is mailed.

IX. Expiration of This Agreement

(Approval of this agreement may be contingent upon agreement to an 
expiration mechanism. Use one of the three conditions below to complete 
this paragraph.)
(This Vegetation Variance is intended to be permanent.)
(This Vegetation Variance shall expire on [insert date].)
(This Vegetation Variance shall expire upon [explain event].)

    However, the Corps reserves the right to revoke this Agreement if 
USACE determines that it results in conditions that threaten levee 
system reliability and public safety.

X. Signatures

    IN WITNESS HEREOF, the parties hereto have executed this Agreement, 
which shall become effective upon the date it is signed by the USACE 
District Commander.

THE DEPARTMENT OF THE ARMY

BY:--------------------------------------------------------------------
(signature)
(full name, typed)
DISTRICT COMMANDER
(district name) DISTRICT
DATE:------------------------------------------------------------------

BY:
-----------------------------------------------------------------------
(name of requester)
(signature)
(full name, typed)
(title)

DATE:------------------------------------------------------------------

(Other signature blocks may be added as necessary.)

XI. Certificate of Authority

Certificate of Authority

    I, ----------------------------------------------------------------
----------, do hereby certify that I am the principal legal officer of 
the (Name of Public Sponsor), that (Name of Public Sponsor) is a 
legally constituted public body with full authority and legal 
capability to perform the terms of the Agreement between the Department 
of the Army and the (Name of Public Sponsor) in connection with this 
Vegetation Variance Request and Agreement Addressing the Vegetation 
Standards for (enter the levee system name and location, as defined in 
the National Levee Database) and that the persons who have executed 
this Agreement on behalf of (Name of Public Sponsor) have acted within 
their statutory authority.
    IN WITNESS WHEREOF, I have made and executed this certification 
this ---------------------------- day of -------------------------- 
20----.

(Name of Counsel for signing entity)
(Full Formal title)

Enclosure 3--VEGETATION VARIANCE REQUEST SUBMITTAL REQUIREMENTS

Submittal Requirements

Recommended First Steps

    1. Contact the local USACE District. Early coordination may help to 
focus efforts and minimize costs.
    2. Consider submittal requirement in Paragraph 4.b.(2) below. If 
the prism is not smaller than the existing levee cross section, it is 
unlikely that a variance involving woody vegetation will be approved 
without compensating structural modifications.
    3. Please note the following points:
    a. A variance may not result in an expected level of reliability 
below that provided by a structure designed to minimum standards as 
detailed in the following USACE Engineer Manuals (EMs), Engineer 
Technical Letters (ETLs), and Engineer Circular (EC).
    (1) EM 1110-2-1913, Engineering and Design--Design and Construction 
of Levees, 30 April 2000
    (2) EM 1110-2-1601, Engineering and Design--Hydraulic Design of 
Flood Control Channels, 30 June 1994
    (3) EM 1110-2-2502, Engineering and Design--Retaining and Flood 
Walls, 29 September 1989

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    (4) ETL 1110-2-575, Evaluation of I-walls, 1 September 2011
    (5) ETL 1110-2-569, Engineering and Design--Design Guidance for 
Levee Underseepage, 1 May 2005 (in-effect through August 2012, content 
to be incorporated into other guidance)
    (6) EC 1110-2-6066, Engineering and Design--Design of I-Walls, 1 
April 2011
    b. Minimum design standards may not be sufficient for all 
situations: sufficiency of minimum standards, for specific conditions, 
will be subject to engineering analysis and evaluation.
    c. The levee, or floodwall, and any appurtenant structures are 
designed to function together, as a system. Any likely incidental 
impacts to system functionality must also be considered.
    d. A request for a vegetation variance for a planting berm need not 
satisfy the environmental or Tribal criteria outlined in Paragraph 6.a. 
of the PGL, and it need not address the associated submittal 
requirement in Paragraph 3 (below).
    e. The graphic information provided in response to the submittal 
requirements in Paragraph 4 (below), and the vegetation management plan 
provided in response to Paragraph 8 (below), together shall fully 
define the extent and conditions of the vegetation variance.
    f. The USACE District shall assure the accuracy of all information 
submitted in satisfaction of the Submittal Requirements.

Submittal Requirements

    Information satisfying the numbered requirements below shall be 
submitted in Adobe Systems portable document format (PDF), under cover 
of the completed Submittal Checklist provided herein, Enclosure 1. The 
Review and Approval Signature Sheet shall then be attached to the 
vegetation variance request package for tracking of the review process. 
Advance coordination between the requestor(s), the USACE District/MSC, 
and the Risk Management Center (RMC), prior to preparing the variance 
request, is recommended and may result in situation-specific amendment 
to these submittal requirements. Any clarifications to this guidance, 
and examples of vegetation variance request documents, will be 
available through the USACE District.
    1. A general description of the levee system including system name, 
project authority, location, and National Levee Database (NLD) 
identification number (available through the USACE District).
    2. A brief narrative describing the proposed deviations from the 
USACE vegetation-free-zone standards prescribed in ETL 1110-2-571 
Guidelines for Landscape Planting and Vegetation Management at Levees, 
Floodwalls, Embankment Dams, and Appurtenant Structures. Include a 
general description of existing and proposed plant locations, and type 
of vegetation (e.g. tree or shrub). Also include a representative list 
of species and the following characteristics of each, at maturity and, 
if different, at the maximum maturity to be permitted under the 
vegetation management plan: height, crown diameter, and root pattern 
and extent (horizontal and vertical). Cite source(s) used for 
information on plant characteristics.
    3. A brief narrative explaining why the proposed variance(s) are 
necessary to address the criteria presented in Paragraph 6.a. of the 
main policy memorandum. Explain why these needs cannot be satisfied at 
a location other than on the levee; what alternatives to a vegetation 
variance were considered, and why the requested variance the only 
reasonable means to address applicable criteria. If Paragraph 6.a. of 
the PGL does not apply then simply state why it does not.
    4. Detailed, annotated, plan and section drawings, and photographs, 
using an 11 x 17 format at a scale and resolution appropriate to the 
level of detail and enlarged on-screen viewing, which clearly convey 
pertinent information as follows:
    a. Provide a plan-view drawing, showing the overall levee system, 
in context, and identifying each reach to which the variance is to 
apply. As used here, the term ``reach'' may be defined as follows: a 
length of levee that may be accurately represented by a single cross-
section drawing and set of conditions. Provide overall stationing (in 
feet or miles), and identify the beginning and ending points for each 
levee reach to be considered. The variance request should not include 
any portion of the levee system for which there are reasonable 
alternatives; for example, a variance will not be granted for an entire 
levee system when only a portion of that system meets the criteria 
described in Paragraph 6.a. of the PGL.
    b. Provide a cross-section drawing for each levee reach to which 
the variance is to apply. Each cross-section drawing shall include the 
following information.
    (1) Show, label, and dimension the entire levee and/or floodwall. 
Include any existing or proposed planning berms. Include any 
appurtenant structures (e.g. berms, reinforcement, cut-off walls, 
drains, relief wells) necessary for reliable performance. Include the 
stream bank (to the stream bottom) and any other pertinent features, 
such as roads or trails.
    (2) Show, label, and dimension the levee prism (see Figure 1). The 
prism is the minimum analytical cross section that, given site-specific 
soil conditions, satisfies all applicable design criteria with regard 
to seepage and slope stability, as defined in EM 1110-2-1913 and ETL 
1110-2-569. In addition, if the USACE District levee design standards 
exceed the minimums defined in EM 1110-2-1913, or conditions warrant, 
the USACE District may require a larger prism. The prism must also 
satisfy the requirements of any other applicable standard. For example, 
some USACE District projects adhere to the Code for Utilization of Soil 
Data for Levees, Mississippi River Commission, Vicksburg, Mississippi, 
April 1947, applicable to Mississippi River and Tributaries levees. The 
determination and documentation of site-specific soil conditions shall 
be consistent with the requirements and procedures outlined in EM 1110-
2-1913, and must be confirmed by the District. The prism shall assume 
loading to the top of the structure; or, where loading to top of 
structure is not possible, maximum possible loading. Note: variance 
approval is unlikely where the analytical prism is equal to or larger 
than the existing levee cross section.
    (3) Show, label, and dimension the project right-of-way.
    (4) Show to-scale, annotated soil profiles, to an appropriate depth 
but not less than 20 feet below the levee toe. The determination and 
documentation of site-specific soil conditions shall be consistent with 
the requirements and procedures outlined in EM 1110-2-1913.
    (5) Show, label, and dimension the extent of the requested Variance 
Zone and the remaining Vegetation-Free Zone.
    (6) Show, label, and dimension any structural modifications 
proposed in conjunction with existing or proposed vegetation.
    (7) Include a graphic velocity profile, on the waterside, 
indicating flow rates at pertinent water surface elevations, including 
the design-event, the flood of record, and top-of-structure.
    (8) Indicate the normal water elevation. For variance purposes, the 
normal water elevation is that below which riparian terrestrial plant 
species are unable to thrive, due to the frequency and duration of 
inundation.
    (9) Indicate the Ordinary High Water Mark. The Ordinary High Water 
Mark is used to establish waterway boundaries, it is a regulatory term 
defined in ETL 1110-2-571 and in the Code of Federal Regulations 
(CFR)--33 CFR Part 328.3 (e).

[[Page 9644]]

    (10) List the dominant plant species likely to occupy the proposed 
variance zone: include those known to be the largest (in cross-
sectional crown area) and to have the most extensive root systems. Cite 
source(s) used for information on plant characteristics.
    (a) Of these species, select the one with the most extensive likely 
root system: this will often be the species with the largest cross-
sectional crown area at maturity. If two species have the most 
extensive likely root system (one for depth and one for spread) select 
both.
    (b) Develop a cross-sectional illustration of the selected species: 
if two species were selected, the illustration shall show the larger of 
the two, with a composite root system showing the complete root systems 
of both. The entire individual (or composite) shall be shown to-scale, 
at maturity (or, if different, at the maximum maturity to be permitted 
under the vegetation management plan), as developed in-the-open, under 
local conditions (e.g. climate, soils, and moisture conditions)--and 
shall clearly show the typical extent and character of the mature root 
system, truncated at the point where roots are no greater than 0.5 in. 
in diameter. Root depth assumptions must be developed specific to 
species and local conditions. Unless reliable information to the 
contrary is presented, it shall be assumed that roots greater than 0.5 
in. in diameter will extend to the edge of the natural canopy of the 
mature tree or shrub. The ATR team will determine the acceptability of 
information on a case-by-case basis.
    (c) Place the completed illustration of this individual in the 
cross-section drawing(s). If specific planting locations are not known, 
then place an instance of the illustration, centered, on both the upper 
and lower boundary line of the proposed variance area. If the distance 
between the two is such that the illustrated root systems do not meet 
or overlap, then place one or more additional illustrations between the 
two. In the cross section below each of these illustrations, show the 
potential pit, as an arc (as shown in Figure 2b.), centered under the 
trunk of each illustrated tree.
    c. For each levee reach, provide representative, appropriately-
scaled photographs both plan view (aerial) and cross-sectional (oblique 
angle photos taken from ground level looking towards the cross-
sectional view) of the levee clearly showing existing conditions.
    d. Provide details of any structural measures (such as armoring or 
overbuilt sections) intended to preserve system reliability and 
resiliency by preventing or mitigating vegetation impacts.
    5. Provide the following analyses illustrating that the changes 
proposed will result in conditions consistent with the criteria in PGL 
Paragraph 6.d. of this policy. Include graphics, text, and other 
information (e.g. construction materials, methods, and standards) as 
needed to clearly support conclusions. Analyses must show that the 
levee prism (or floodwall) remains intact and consistent with the 
design and performance intent of the USACE design standards detailed in 
EM 1110-2-1913 (EM 1110-2-2502 and/or EC 1110-2-6066 (with 
consideration of ETL 1110-2-575) for floodwalls) and ETL 1110-2-569.
    a. Cross section analysis. The cross-section drawing(s) must 
demonstrate the following.
    (1) No significant roots (those greater than 0.5 in. in diameter) 
will enter the levee prism or approach within 8 feet of structures 
critical to performance, such as drains or seepage-cutoff walls.
    (2) No tree-overthrow pit will penetrate the levee prism. The 
assumed pit/mound is illustrated in Figure 2a and, in plan-view, is 
less than a full circle; however, because the tree may fall in any 
direction, the potential pit must be assumed to be a full circle. 
Unless reliable information to the contrary, acceptable to the ATR 
team, is available for a specific situation, the dimensions provided in 
Figure 2 shall be used. These dimensions, which are consistent with 
USACE observation and experience, were derived from field data 
presented in the following paper: Clinton, B.D. and C.R. Baker. 2000. 
``Catastrophic windthrow in the southern Appalachians: characteristics 
of pits and mounds and initial vegetation responses.'' Forest Ecology 
and Management 126:51-60.
    (3) No roots or tree-overthrow pit will significantly impact the 
function of any appurtenant structure, such as those designed to 
control seepage.
    b. Hydraulic analyses must demonstrate the following, assuming 
worst-case combinations of flow, elevation, hydraulic roughness, 
duration, and velocity. Analysis must include the full range of flows 
encompassing the lowest levee-toe elevation to the highest top-of-levee 
elevation within the variance reach. Generally, the worst-case 
hydraulic condition results from a high-flow/low-tailwater-elevation 
combination. However, a full range of flow/tailwater combinations 
should be analyzed to ensure that the worst-case condition is accounted 
for. The worst-case size and density of vegetation must also be 
considered, assuming the highest annual crown foliage density.
    (1) The overall level of flood risk reduction and reliability of 
the system must be maintained. Channel geometry and roughness changes 
shall result in no increase in water surface elevations for the 
required range of flows, as demonstrated by a graphic and a tabular 
summary of changes in water surface elevation and velocity that extends 
sufficiently upstream, because hydraulic impacts are typically 
transmitted upstream. If an increase in water surface elevations or 
velocities cannot be avoided, they must be mitigated.
    (2) Erosion and scour, associated with standing vegetation, will 
not impact the levee prism. This analysis should utilize an appropriate 
methodology, such as application of an adapted bridge scour model or 
2D/3D hydraulic design model, with sediment transport, that shall 
provide a quantitative assessment of the maximum extent of erosion and 
local scour potential. This analysis shall provide an estimate of the 
maximum extent of erosion and scour, which shall be illustrated in the 
cross-section drawing(s). This assessment shall cover long-term trends 
as well as event-driven scour/erosion.
    (3) In the event of waterside tree overthrow, subsequent erosion 
and scour at the overthrow site will not impact the levee prism. 
Analyses must consider assumed pit/mound topography (as illustrated in 
Figure 2a) at all possible points on the variance cross section, 
determining the worst-case orientation to flow and the resulting extent 
of erosion and scour. This analysis should utilize an appropriate 
methodology, such as application of an adapted bridge scour model or 
2D/3D hydraulic design model, with sediment transport, that considers 
the erosion mechanisms and local scour potential. This analysis shall 
provide an estimate of the maximum extent of erosion and scour, which 
shall be illustrated in the cross-section drawing(s).
    c. Geotechnical analyses or review must determine that the levee 
prism, defined in submittal requirement in Paragraph 4.b.(2) (above), 
is sufficiently buffered from vegetation impacts.
    d. Structural analyses must determine that floodwalls and other 
non-earthen structures are sufficiently buffered from vegetation 
impacts and that any proposed structures will function as intended.
    e. Analysis must find that access is retained, consistent with the 
intent of Paragraph 6.d of the main PGL.
    6. Provide the most recent Routine Inspection Report and Periodic 
Inspection Report completed by the USACE district.

[[Page 9645]]

    7. Provide a summary of levee performance history for all 
significant flood events. Indicate the levee's authorized capacity 
(formerly referred to as the design flood or design water surface 
elevation) and, for each event, the year of occurrence, event 
probability (e.g., the 0.2% flood), flood duration, and description of 
any floodfighting challenges, failures, and outcomes.
    8. Provide a vegetation management plan, detailing (1) the 
vegetation conditions to be maintained, (2) how and on what schedule 
the maintenance will be performed, and (3) how the boundaries of the 
vegetation variance zone will be clearly identifiable, on site, for 
maintenance and inspection purposes. The vegetation management plan 
shall also stipulate that all grades and cross sections shall be 
maintained as approved and that any reduction to grade or cross section 
will be restored in a timely fashion.
    9. Provide any National Environmental Policy Act (NEPA), Endangered 
Species Act (ESA), or any other environmental compliance documentation 
that the district determines is required to conduct the review. 
Identify the pertinent paragraphs or sections.
    10. Provide excerpts of the current project operations and 
maintenance (O&M) manual as requested as supplemental information for 
the review process.
    11. Provide other information, as appropriate to specific 
conditions.
    12. Provide the levee sponsor's primary point of contact (POC) for 
this request.

GLOSSARY OF TERMS USED IN FIGURES 1-3

Bank (Figure 1)

    The bank is the ground line between the bottom and the top of the 
channel. When there is no significant horizontal separation between the 
top of the bank and the waterside levee toe, such that the bank slope 
and the waterside levee slope are essentially continuous, then the bank 
becomes critical to levee reliability, as significant erosion of the 
bank may result in a loss of prism.

Corridors (Figure 1)

    Corridors provide a functional platform from which to conduct 
operations and maintenance activities, especially those involving major 
improvements or repairs. In addition, the landside corridor provides 
critical access during floodfighting operations, especially under 
conditions that prevent adequate access from the crown.

Crown (Figure 1)

    The crown is the level top of the levee design cross section. It 
serves as the primary means of access for routine operations, but 
during major flood events may not be useable due either to saturation-
induced reduction in stability or to floodfighting measures such as 
sandbagging.

Design Cross Section (Figure 1)

    The design cross section consists of the prism plus any additional 
material provided to increase crown width and/or flatten slopes in 
order to reduce erosion or improve accessibility. Additional material 
and placement methods are often similar or identical to that used for 
the prism. While accessibility may be the purpose, the additional 
material also increases levee resiliency. A levee that meets USACE 
design standards has a design cross section that is equal to or larger 
than the prism.

Pit/Mound Topography (Figure 2)

    The topography that results from the overturning of a tree; it 
includes the pit, the mound (or rootball) and the overturned tree.

Planting Berm--Landside (Figure 3)

    Additional cross section required to accommodate desired 
vegetation. It preserves access and protects the prism from root-
related damage. Analyses results may require cross section in excess of 
the prescribed minimums. To serve as compensation for lost landside 
access, the planting-berm crown must support all vehicular access 
necessary to inspection, maintenance, and floodfighting.

Planting Berm--Waterside (Figure 3)

    Additional cross section required to accommodate desired 
vegetation. It preserves access and protects the prism from root-
related damage. Analyses results may require cross section in excess of 
the minimums. Analysis must show no unacceptable impacts to channel 
capacity. The berm crown must support all vehicular access necessary to 
conduct inspection, maintenance, and floodfighting.

Prism (Figure 1)

    The prism is the portion of the levee identified as the minimum 
acceptable cross section as defined in Paragraph 4.b. 2 (above, 
Enclosure 3), for a given water elevation, such as the design flood 
event. Prism dimensions, slopes, materials, and placement methods are 
designed to meet standards that will give reasonable assurance of 
successful performance. The prism is not typically designed to control 
underseepage.

Setbacks (Figure 1)

    Setbacks are a sustainability measure for both the levee and 
environment. Setbacks are an important consideration that should be 
addressed in the plan-formulation process. While they are critical to 
sustainability of a floodplain, they are not specifically prescribed in 
the levee design manual (EM 1110-2-1913). The waterside setback 
provides space in which to maintain a measure of floodplain function 
and riparian habitat: this serves the environment, but also protects 
the levee from pressures to develop critical riparian habitat. 
Additionally, in-place riparian habitat serves as a protective buffer 
between the levee and erosive flows. The landside setback reserves 
space for future levee improvements or repairs: while this space is in 
reserve it may be used as a recreational greenway and/or a landscape 
buffer between the levee and adjacent development.

Slopes (Figure 1)

    Levee slopes, among other considerations, must be sufficiently 
accessible to facilitate effective operation and maintenance activities 
that might be impractical on steeper prism slopes. A slope may have a 
spatial/functional relationship coincident with a bank (see Figures 1a. 
and 1b., respectively).

Toe (Figure 1)

    The landside toe is generally the point at which the levee slope 
intersects with adjacent level ground. The waterside toe is generally 
the point on the waterside slope at which the elevation is equal to 
that of the landside toe. This is a general definition and there are 
nuances and exceptions.

Vegetation-Free Zone

    The vegetation free zone (VFZ) includes the ground on, or within 15 
feet of, the levee and its appurtenant structures. The VFZ shall remain 
free of any vegetation other than grasses, except as allowed in ETL 
1110-2-571 and USACE vegetation variance policy.
BILLING CODE 3720--58-P

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[FR Doc. 2012-3701 Filed 2-16-12; 8:45 am]
BILLING CODE 3720-58-C