Natural Disaster Procedures: Preparedness, Response, and Recovery Activities of the Corps of Engineers, 68386-68410 [2022-24543]

Agencies

• DEPARTMENT OF DEFENSE
• Corps of Engineers, Department of the Army

[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Proposed Rules]
[Pages 68386-68410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24543]


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DEPARTMENT OF DEFENSE

Corps of Engineers, Department of the Army

33 CFR Part 203

[Docket ID: COE-2021-0008]
RIN 0710-AA78


Natural Disaster Procedures: Preparedness, Response, and Recovery 
Activities of the Corps of Engineers

AGENCY: U.S. Army Corps of Engineers (Corps), Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: The Corps is proposing to revise its natural disaster 
procedures under this part of the Code of Federal Regulations (CFR), 
which implements a section of the Flood Control Act of 1941, as 
amended. Revisions will incorporate advances in risk-informed decision-
making approaches and disaster response lessons learned, as well as 
recent amendments to this section of the Flood Control Act of 1941.

DATES: Comments must be received on or before January 17, 2023.

ADDRESSES: You may submit comments, identified by docket number COE-
2021-0008, using any of these methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected] and include the docket number, 
COE-2021-0008, in the subject line of the message.
    3. Mail: HQ, U.S. Army Corps of Engineers, ATTN: 33CFR203/CECW-HS/
3D64, 441 G Street NW, Washington, DC 20314-1000.
    4. Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2021-0008. 
The public docket will include all comments exactly as submitted and 
without change and may be made available on-line at https://www.regulations.gov. This will include any personal information 
provided, unless the commenter indicates that the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information where disclosure is restricted by statute. Do not 
submit information that you consider to be CBI, or otherwise protected, 
through regulations.gov or email. The regulations.gov website is an 
anonymous access system, which means we will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an email directly to the Corps without going through 
regulations.gov, your email address will be automatically captured and 
included as part of the comment placed in the public docket and made 
available on the internet. If you submit an electronic comment, we 
recommend that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification, we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to https://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: Mr. Willem H.A. Helms, Office of 
Homeland Security, Directorate of Civil Works, U.S. Army Corps of 
Engineers, at (202) 761-5909 or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

Background
General Information for the Proposed Rule
Need for Revision
Overview of Proposed Changes
Expected Benefits and Costs of Proposed Changes
Incorporation of Public Comments
References
Procedural Requirements

Background

    Section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C. 
701n), commonly and hereinafter referred to as ``Public Law 84-99'' 
authorizes the Corps to undertake certain emergency management 
activities. Specifically, Public Law 84-99 authorizes an emergency fund 
to be expended in preparation for emergency response to any natural 
disaster, in flood fighting and rescue operations, or in the repair or 
restoration of any flood control work threatened or destroyed by flood. 
These activities may include the strengthening, raising, extending, 
realigning, or other modification thereof as may be necessary in the 
discretion of the Chief of Engineers for the adequate functioning of 
the work for flood control and subject to the condition that the Chief 
of Engineers may include modifications to the structure or project, or 
in implementation of nonstructural alternatives to the repair or 
restoration of such flood control work if requested by the non-Federal 
sponsor. The emergency fund may also be expended for use in the 
emergency protection of federally authorized hurricane or shore 
protection when in the discretion of the Chief of Engineers such 
protection is warranted to protect against imminent

[[Page 68387]]

and substantial loss to life and property. In addition, the emergency 
fund may be expended for the repair and restoration of any federally 
authorized hurricane or shore protective structure or project damaged 
or destroyed by wind, wave, or water action of other than an ordinary 
nature. Such repair and restoration must be completed to either the 
pre-storm level or the design level of risk reduction, whichever 
provides greater protection, when, in the discretion of the Chief of 
Engineers, such repair and restoration is warranted for the adequate 
functioning of the structure or project for hurricane or shore 
protection, subject to the condition that the Chief of Engineers may 
include modifications to the structure or project to address major 
deficiencies or implement nonstructural alternatives to the repair or 
restoration of the structure if requested by the non-Federal sponsor. 
The emergency fund may also be expended for emergency dredging for 
restoration of authorized project depths for Federal navigable channels 
and waterways made necessary by flood, drought, earthquake, or other 
natural disasters. In any case in which the Chief of Engineers is 
otherwise performing work under this section in an area for which the 
Governor of the affected State has requested a determination that an 
emergency exists or a declaration that a major disaster exists under 
the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5121 et 
seq.], the Chief of Engineers is further authorized to perform on 
public and private lands and waters for a period of 10 days following 
the Governor's request any emergency work made necessary by such 
emergency or disaster. Such work must be essential for the preservation 
of life and property, including, but not limited to, channel clearance, 
emergency shore protection, clearance and removal of debris and 
wreckage endangering public health and safety, and temporary 
restoration of essential public facilities and services. The Chief of 
Engineers, in the exercise of his discretion, is further authorized to 
provide emergency supplies of clean water, on such terms as he 
determines to be advisable, to any locality which he finds is 
confronted with a source of contaminated water causing or likely to 
cause a substantial threat to the public health and welfare of the 
inhabitants of the locality.
    The Corps' Public Law 84-99 Program is multi-faceted program that 
encompasses disaster preparedness, response and recovery activities in 
support of Federal, State, Tribal, and local stakeholders. The Corps' 
Public Law 84-99 Rehabilitation Program is a voluntary disaster 
recovery program that provides for the rehabilitation (e.g., repair) of 
damage to eligible Federal and non-Federal flood risk management 
projects damaged by flood or coastal storms.
    The Corps and other Federal agencies can assist communities in 
assessing, communicating, and managing their flood risks and can help 
them prepare for and respond to a flood, hurricane, or other natural 
disaster. However, State, Tribal, and local governments, and those 
living and working behind a flood or coastal storm risk management 
project have the primary responsibility and role in this effort. The 
residual flood risk associated with their projects is a result of how 
those projects are expected to perform under a range of potential 
floods, and the consequences that would result from their failure 
during a flood.
    The focus of this rulemaking is the Public Law 84-99 program. In 
addition to Public Law 84-99, the Corps has other authorities. For 
example, through its Planning Assistance to States program and its 
Flood Plain Management Services program, the Corps is able to assist a 
community to identify and evaluate options where the flood risk is 
increasing due to climate change. Similarly, through these planning and 
technical assistance programs, the Corps is able to encourage and 
facilitate a collaborative approach to address complex natural 
resources issues and Tribal treaty rights. However, the Corps generally 
does not perform this kind of work through the Public Law 84-99 
program. The Corps also recognizes the importance of environmental 
justice. It applies this policy both in the Public Law 84-99 program 
and under its other authorities.
    Part 203 of Title 33 of the CFR is the Corps' implementing 
regulation for Public Law 84-99 and was last promulgated in 2003 (68 FR 
19357, April 21, 2003). Engineering Regulation 500-1-1 provides 
internal agency-specific procedures implementation guidance for 
implementing Public Law 84-99.

General Information for the Proposed Rule

    1. Does this action apply to me? This action is directed to the 
public in general, but will be of particular interest to a variety of 
organizations, to include legally constituted non-Federal public bodies 
responsible for operating and maintaining flood and coastal storm risk 
management projects (referred to as ``non-Federal sponsors'' in 33 
U.S.C. 701n), State, Tribal, territorial, and local emergency 
management agencies, water resources agencies, environmental agencies, 
fish and wildlife management agencies and organizations, and 
floodplain, dam, and levee safety managers. This proposed rule applies 
to many communities nationwide, including those with environmental 
justice interests, and commenters are encouraged to provide their views 
and inputs on environmental justice strategies related to this 
rulemaking effort.
    2. What should I consider as I prepare my comments for submission? 
Commenters not familiar with current policy should review the 
references section. These resources are available on the Federal 
eRulemaking portal at https://www.regulations.gov. For ease of comment 
review and consideration, commenters should consider referencing a 
specific section or paragraph of 33 CFR part 203. In addition to 
solicitation on the specific changes being proposed, the Corps solicits 
comments in general on other issues or concerns related to this part 
that commenters may wish to raise. For example, commenters may provide 
comments on how best to incorporate nature-based solutions into this 
program. For these comments, the commenter should state the issue or 
concern, provide or reference any supporting documentation (e.g., 
reports, statistical data, and studies), and make a proposal or 
recommendation about how to improve the regulation.

Need for Revision

    This rule includes a proposed change in the focus of the 
Rehabilitation Program. The eligibility of a levee system for 
consideration for rehabilitation assistance after a flood was once 
based only on inspections conducted by the Corps. More recently, the 
Public Law 84-99 program has been transitioning to risk-informed 
eligibility determinations for projects, which are based on an 
evaluation of the non-Federal sponsor's overall risk management 
activities, including information developed through inspections. 
Additional changes are also proposed to effectively implement recent 
amendments to Public Law 84-99.
    Since the last revision in 2003, significant disasters, including 
Hurricane Katrina (2005), Hurricane Sandy (2012), flooding on the 
Mississippi and Missouri Rivers (2008, 2011, and 2013), and Hurricanes 
Harvey, Irma, and Maria (2017) have provided a more detailed 
understanding of the nature and severity of the risks associated with 
coastal storms and floods. These significant events

[[Page 68388]]

provided information regarding project performance and the effects of 
climate change that the Corps has considered when formulating this rule 
update.
    During Hurricane Katrina, the Federal response was found to be 
reactive once State and local governments had exhausted available 
response resources, and was not necessarily anticipatory. This rule 
update provides ability to lend expertise and gain a greater 
understanding of State, Tribal, and local needs and requirements in 
order to improve their ability to prepare for, respond, and recover 
from natural disasters. Lessons learned have also resulted in the 
``whole of community'' principles outlined in the National Preparedness 
Goal and supporting frameworks and which are incorporated in this rule 
update.
    Additionally, the maturation of risk-informed decision-making 
approaches and technological advancements from a purely standards-based 
perspective has influenced the outlook on how Public Law 84-99 
activities should be implemented, with a shift towards better alignment 
with the Corps Levee Safety and National Flood Risk Management 
Programs. Risk-informed decision making uses an iterative process to 
reduce risk over time by identifying the areas of acceptable risk, 
monitoring the acceptable risk, and then devoting resources to manage 
the sources of unacceptable risk in priority order. The process begins 
by capturing activities and efforts within three overarching 
categories: risk assessment, risk management, and risk communications. 
Through this process, the Corps and non-Federal sponsors assess the 
flood risk to property, infrastructure, public safety, and the 
environment; and seek to reduce that risk in stages by addressing the 
highest priority flood risk management deficiencies first, and by 
working with elected officials and other risk managers to identify 
other priority areas for investment. Through risk communication, people 
living and working behind flood risk management projects also can make 
informed decisions regarding flood insurance, evacuation measures, 
flood proofing, and relocation. Risk assessment, risk management, and 
risk communication concepts are included in this proposed update.
    Given these developments since the last revision in 2003, the Corps 
is proposing to repeal and replace part 203. The proposed revisions 
include updated eligibility criteria for rehabilitation assistance 
under Public Law 84-99. The proposed criteria are more risk-informed, 
with the intended result of improved targeting of non-Federal sponsor 
investments.
    In addition to the lessons learned identified previously and the 
evolution of Corps and national policy related to risk-informed 
decision making and disaster risk management, the proposed revisions 
reflect the enactment of the following statutes, which amended or 
otherwise affected the Public Law 84-99 program:
    1. Subsection 3029(a) of the Water Resources Reform and Development 
Act of 2014 (WRRDA) (Pub. L. 113-121) grants the Chief of Engineers 
authority to restore eligible hurricane or shore protection works to 
the design level of risk reduction and, under certain circumstances, to 
make modifications to flood control and hurricane or shore protection 
works damaged during flood or coastal storms events, as well as the 
authority to implement nonstructural alternatives in the repair and 
restoration of hurricane or shore protection works if requested by the 
non-Federal sponsor.
    2. Section 3011 of WRRDA 2014 mandates that a levee system shall 
remain eligible for rehabilitation assistance under Public Law 84-99 as 
long as the system's non-Federal sponsors continue to make satisfactory 
progress, as determined by the Secretary of the Army, on an approved 
system wide improvement framework or letter of intent.
    3. Section 1176 of the Water Resources Development Act of 2016 
(WRDA) (Pub. L. 114-322, Title I) provides an express definition of 
``nonstructural alternatives,'' as that term is used in Public Law 84-
99, and authorizes the Chief of Engineers, under certain circumstances, 
to increase the level of risk reduction of flood control works when 
conducting repair or restoration activities to such works under Public 
Law 84-99.
    4. Section 1160 of the Water Resources Development Act of 2018 
(WRDA) (Pub. L. 115-270, Title I) provides the option of realignment to 
the kinds of modifications that can be made to flood control works; and 
changes the authorized level of restoration for coastal storm risk 
management (CSRM) projects.
    5. Section 1161 of the Water Resources Development Act of 2018 
(WRDA) (Pub. L. 115-270, Title I), as amended by section 120 of the 
Water Resources Development Act of 2020 (Division AA, Pub. L. 116-260), 
authorizes the Chief of Engineers to repair or restore Federal and non-
Federal flood risk management (FRM) projects and federally authorized 
CSRM projects when the costs of the repair or restoration work exceed 
the benefits, if the non-Federal sponsor agrees to pay, in cash or in-
kind contributions, all costs in excess of the benefits of the repair 
or restoration work and the Secretary determines that the damage to the 
structure was not a result of negligent operation or maintenance and 
that repair of the project could benefit another Corps project.

Overview of Proposed Changes

    The section titles referred to in this section of the preamble 
reflect the titles in the proposed regulatory text which may be 
different than what is reflected in the currently codified regulatory 
text.

Rulemaking Alternatives Considered

    1. No rule update: In this alternative, the Corps would follow 
status quo and continue to implement all changes through agency 
discretion and internal regulations. This alternative was not selected 
because the Public Law 84-99 amendments are very prescriptive and 
public rulemaking is necessary to ensure implementing policy will 
achieve its intended purpose as described in the proposed rule.
    2. Repeal and replace only those provisions that pertain to the 
Public Law 84-99 Rehabilitation and Inspection Program: In this 
alternative, the Corps would issue a separate rule for the Public Law 
84-99 Rehabilitation Program and would repeal the provisions in the 
current rule that affect that program. This alternative was not 
selected because it would result in two published rules for the Public 
Law 84-99 program. That could result in misunderstandings of program 
activities and inhibit transparency.
    3. Repeal and replace all of the current rule (selected 
alternative): In this selected alternative, the Corps proposes to 
incorporate and integrate the current state of the practice of flood 
risk management principles and concepts through the provision of agency 
policy codified in a federal rule. The intended benefit is to encourage 
broader community flood risk management activities by non-Federal 
project sponsors specific to the flood risk management projects they 
operate and maintain and in coordination with the applicable 
communities. This rule alternative also consolidates recent Public Law 
84-99 amendments into one comprehensive rule, ensuring the public has a 
clear understanding of the responsibilities and requirements.

Proposed Changes to Each Section

Subpart A--Introduction
    Section 203.11 General. Minor editorial changes are proposed for

[[Page 68389]]

clarity to better describe the purpose of this section of the 
regulation and to reflect the requirements of Public Law 84-99, as 
amended (33 U.S.C. 701n). Editorial changes also are proposed for 
clarity and accuracy to better reflect the current authorities and 
activities of the Corps under Public Law 84-99, such as changing 
``flood control works'' to the more appropriate ``flood risk management 
projects.'' In addition, two new subsections are proposed for ``Form of 
Assistance'' and ``Availability of Assistance.'' The ``Form of 
Assistance'' proposed text clarifies that direct assistance is only 
provided to responsible State, Tribal, territorial, and local interests 
rather than individuals and that the Corps generally does not transfer 
Federal funds for the non-Federal performance of assistance activities. 
The ``Availability of Assistance'' subsection proposed text clarifies 
that Public Law 84-99 assistance is only provided when similar 
assistance is not reasonably available from other Federal agencies.
    Section 203.12 Definitions. To enhance transparency and common 
understanding, new definitions are proposed for coastal storm risk 
management projects; emergency repair, rehabilitation, and restoration; 
Federal coastal storm risk management project; Federal flood risk 
management projects; flood risk management projects; Tribal Nation; 
interim risk reduction measures (IRRM); Lands, Easesment, Right-of-Way, 
Relocation, and Disposal/Borrow sites (LERRDs); levee segment; levee 
system; maintenance; non-Federal flood risk management project; 
nonstructural alternatives; operation; rehabilitation; repair; 
replacement; responsible State, Tribal, and local interests. In 
general, these are terms commonly used by the Corps. Updated 
definitions are proposed for Governor, to clarify that the Governor is 
the chief executive of a State; and non-Federal Sponsor, to clarify the 
applicable types of agreements. The current definition of Federal 
project, flood control project, hurricane shore protection project 
(HSPP), non-Federal project, repair and rehabilitation are proposed to 
be removed as the proposed new and updated definitions would supersede 
the content in those existing definitions to provide added granularity 
and clarity.
    Section 203.13 Federally-recognized Tribal Nations and the Alaska 
Native corporations. Minor changes are proposed. There is an exception 
proposed for tribes regarding emergency water assistance as the statute 
defines such assistance is provided to States. The proposed exception 
is required to ensure emergency water assistance may be provided to 
tribes, albeit indirectly through the States. In other Public Law 84-99 
assistance areas, the Tribal Nations may submit requests for assistance 
directly to the Corps.
    Section 203.14 Exceptions to policy. An ``exception to policy'' 
section is proposed in order to ensure flexibility when accomplishing 
activities, prescribed in this rule, with complex and/or unforeseen 
interdependencies.
Subpart B--Emergency Preparedness
    Section 203.21 Emergency preparedness assistance. A new section is 
proposed to clarify the purpose of this assistance to Federal, State, 
Tribal, and local agenciesTribal, which is to help support their 
efforts to prepare for a specific identified storm or forecasted high 
water event that may lead to flooding. It also provides examples of 
types of emergency preparedness activities.
    Section 203.22 Emergency preparedness responsibilities of non-
Federal sponsors. This existing section is being renamed to use 
``emergency'' rather than ``disaster'' to identify the broader set of 
circumstances and emergency nature of the preparedness responsibilities 
of non-Federal sponsors. It is also being renumbered to accommodate the 
new section proposed above.
    Through experience gained in recent disasters, the Corps has 
learned that increased local preparedness capability is crucial to 
subsequent natural disaster response and recovery. Changes are proposed 
to improve local capability for disaster preparedness and planning, 
primarily through technical assistance in support of this goal. 
Preparedness planning and training are proposed to be listed as 
separate subsections for clarity and emphasis on the respective actions 
under the responsibility of the non-Federal sponsor. Floodplain 
management and interim risk reduction measures are recognized as a 
local reponsibility in this proposed rule. The current subsection on 
the Corps Rehabilitation and Inspection Program (RIP) is proposed to be 
replaced by the ``Emergency repair, rehabilitation, and restoration 
assistance'' subsection to reflect the proposed transition to a risk-
informed eligibility determination. The proposed subsection also 
clarifies the actions a non-Federal sponsor must undertake to maintain 
eligibility for the Public Law 84-99 Program.
Subpart C--Emergency Operations
    Subpart C is proposed to be rearranged for clarity and to eliminate 
redundancies with the addition of a new section at Sec.  203.33. Much 
of the content remains the same as the current regulation other than 
the changes described below.
    Section 203.31 General. The title of the section is proposed to be 
modified from the existing ``Authority'' to reflect that the section 
describes both the authority of the Corps and the responsibilities of 
non-Federal sponsors for Emergency Operations. Changes are also 
proposed in this section to remove duplicative information already 
found in the proposed renumbered Sec. Sec.  203.32 and 203.33.
    Section 203.31(b) is being proposed to modify the current 
regulation at Sec.  203.31(a), which states that the Corps' flood 
response measures are not appropriate for projects which protect 
strictly agricultural lands. The new subsection allows for the Corps, 
in some cases, to provide such measures for an FRM project that 
primarily reduces the flood risk to agricultural lands. This allows for 
Corps assistance to be provided in these limited situations and 
reflects the contribution of agricultural lands to the national 
economy.
    Section 203.31(c) is proposed to establish the non-Federal 
sponsor's role and responsibilities for certain Emergency Operations 
activities. These are not new responsibilities. Rather, the propsoed 
changes serve to ensure understanding of the role and responsibilities 
of the non-Federal sponsor for those Emergency Operations activities.
    Section 203.32 Flood response procedures. Language is proposed and 
intended to address coordination with other Federal agencies to ensure 
there is appropriate consideration of relevant statutes related to 
environmental and cultural resources taking into account the exigency 
of the circumstances. This proposed addition recognizes that 
environmental and cultural resource protection statutes are applicable 
to emergency actions and that coordination with other agencies at the 
time of or in advance of the emergency response may be necessary. The 
proposed language recognizes the importance of these statutory 
requirements and ensures appropriate compliance and coordination 
occurs. As proposed, Corps Districts should evaluate their emergency 
response portfolio in coordination with other relevant agencies (e.g., 
the National Marine Fisheries Service, the U.S. Fish and Wildlife 
Service, or the applicable State Historic Preservation Office) and 
their response partners to determine whether programmatic compliance or 
establishment of common standard operating procedures in advance of any

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emergency response may be appropriate.
    Section 203.33 Post flood response procedures. Minor changes are 
proposed to simplify and clarify post flood response policy.
Subpart D--Rehabilitation Assistance for Flood Risk Management Projects 
Damaged by Flood
    Changes to this subpart title are proposed to incorporate the more 
appropriate title ``flood risk management projects'' as opposed to the 
formerly used term ``flood control works.'' In addition, the coastal 
storms have been removed from the title as coastal storm risk 
management is now proposed to be discussed in the revised Subpart E--
Emergency Repair, Rehabilitation, and Restoration Assistance for 
Federal Coastal Storm Risk Management (CSRM) projects, to provide 
clarity in distinguishing between the FRM and CSRM projects. Lastly, 
reference to the Corps' Rehabilitation and Inspection Program is 
proposed to be removed from the title to reflect the change in focus of 
the program from the RIP to the risk-informed determinations.
    As discussed previously, this proposed section introduces revised 
criteria for initial and continued eligibility in the Rehabilitation 
Program, modifications to existing flood risk management projects, and 
the System Wide Improvement Framework (SWIF). By incorporating lessons 
learned from recent disasters, the proposed changes will help non-
Federal sponsors improve their flood risk management. Risk-informed 
decision making uses an iterative process to reduce risk over time by 
identifying the areas of acceptable risk, monitoring the acceptable 
risk, and then effectively devoting resources to manage the sources of 
unacceptable risk in priority order. The proposed changes in this 
subpart will transition from eligibility criteria for rehabilitation 
assistance based on an inspection to a risk-informed approach, 
primarily based on an evaluation of a broader set of non-Federal 
sponsor's risk management activities.
    The changes are necessary to encourage broad flood risk management 
actions, including establishing investment priorities at the local 
level based on risk and cost-effectiveness, and to achieve greater 
flexibility to protect and restore natural resources. The proposed 
changes also are intended to promote community discussion and 
engagement in a broader set of actions to help communities manage flood 
risk; and to encourage dialogue and problem solving.
    Section 203.41 General. The current section is proposed to be 
completely replaced. The changes proposed in this section introduce the 
reframing of the current inspection-only program for eligibility 
determinations to the updated risk-informed determinations of the 
Rehabilitation Program. It outlines both the proposed initial and 
continuing eligibility criteria for Federal and non-Federal FRM 
projects to include the components required and process for obtaining 
an eligibility determination. These proposed changes provide clarity 
and transparency to the program.
    Section 203.42 Initial eligibility assessment of non-Federal flood 
risk management projects. The current section is proposed to be 
retitled and completely replaced to be consistent with the proposed 
risk-informed approach. Therefore, the proposed language eliminates the 
current focus on an inspection-only approach to support the initial 
eligibility assessment (IEA) for non-Federal FRM projects in favor of 
the risk-informed approach based on a broader assessment. This section 
proposes to provide the process for the IEA and outlines the content of 
the required initial eligibility application. As proposed, IEAs would 
be primarily based on an evaluation of a broader set of non-Federal 
sponsor's risk management activities through an initial eligibility 
application package and assessment for non-Federal Flood Risk 
Management Projects, as opposed to solely through a traditional 
inspection. However, the Corps will also conduct a site inspection as 
part of the IEA to supplement the application materials received. The 
application as proposed would require documentation of the level of 
risk reduction provided by the non-Federal FRM project and an 
assessment of the expected performance of the project, as well as 
documentation of maintenance status and identification of any 
deficiencies of the project. Much of the information required in the 
proposed application was already included in the current Sec.  203.48 
describing the inspection procedures for the Corps. With the focus now 
on a broader set of non-Federal sponsor's risk management activities 
and a risk-informed decision-making approach, it is appropriate to 
incorporate these elements in the proposed application by a non-Federal 
sponsor rather than limit them to the Corps' inspection procedures. 
Once completed, the assessment is proposed to be provided to the non-
Federal sponsor of the non-Federal FRM project for awareness and 
transparency, and a record will also be maintained by the Corps. The 
results of the assessment will determine initial eligibility for 
emergency repair, rehabilitation, and restoration assistance. The 
proposed eligibility criteria would ensure the non-Federal sponsor has 
sufficiently demonstrated its project meets the level of function 
necessary for inclusion in the Public Law 84-99 program, that the 
project will essentially function as designed and intended. The 
proposed regulation also provides for the non-Federal sponsor to 
provide additional information and request reconsideration of an 
assessment if it does not agree with the initial eligibility 
determination.
    Federal flood risk management projects would be automatically 
granted initial eligibility in the Rehabilitation Program under the 
proposed language, based upon the provision of notice of construction 
completion, similar to the current initial eligibility pathway.
    Section 203.43 Continuing eligibility assessment of Federal and 
non-Federal flood risk management projects. The current section is 
proposed to be completely retitled and replaced to be consistent with 
the proposed risk-informed approach, and therefore eliminates the focus 
on an inspection-only approach to support the continuing eligibility 
assessment (CEA) for Federal and non-Federal FRM projects. The proposed 
text in this section provides the procedures and content of required 
elements for a CEA. As proposed, the CEA would assess the non-Federal 
sponsor's risk management activities through: implementation of its 
project Operation, Maintenance, and Inspection Activities; a review of 
emergency preparedness planning; and a review of public outreach 
activities accomplished to share FRM project condition and performance. 
Inspection information would be verified in accordance with their 
provided plan. The CEA also would include a review of the participation 
for the non-Federal sponsor in past inspections and assessments 
conducted by themselves or with the Corps. The CEA would identify 
changed project conditions that could impact project performance. The 
CEA would also verify that the criteria required for the IEA to 
maintain its eligibility are being met. The specific requirements for a 
favorable CEA determination would be defined in the project partnership 
agreement, O&M manual, or Levee Owner's manual for non-Federal 
sponsors. The proposed criteria would demonstrate whether the non-
Federal sponsor has continued to maintain the project to ensure it will 
essentially function as designed and intended, and also would include 
emergency planning and public

[[Page 68391]]

outreach to ensure it is adequately prepared for an emergency at the 
local level. The Corps believes that improved local preparedness 
capabilities are crucial to ensure natural disaster preparedness and 
planning.
    A favorable CEA determination under Sec.  203.43, or continued 
progress under an approved system-wide improvement framework under 
Sec.  203.50, would be required for the non-Federal sponsor to retain 
its eligibility for emergency repair, rehabilitation, and restoration 
assistance, which is similar to the current practice.
    Section 203.44 Emergency repair, rehabilitation, and restoration of 
Federal and non-Federal flood risk management projects. Minor changes 
are proposed. The section title is proposed to be modified for updating 
to the current terminology of FRM projects and to include both Federal 
and non-Federal projects. The proposed language provides the 
eligibility requirements for emergency repair, rehabilitation, and 
restoration activities, which are the same for Federal and non-Federal 
FRM projects. The proposed regulation eliminates inspection ratings, 
which are no longer proposed to be used to determine eligibility; 
instead, assessments of the previously described activities would be 
performed. Also, the proposed text provides that all applicable 
environmental compliance requirements must be satisfied to make clear 
that even these emergency activities must comply with relevant 
environmental statutes. In addition, the proposed rule describes the 
non-Federal sponsor's responsibility to provide a share of certain 
costs. Lastly, a new subsection is proposed which is moved from its 
current location at Sec.  203.46 to clearly articulate the required 
economic justification and minimum threshold for construction costs for 
emergency repair, rehabilitation, and restoration efforts under the 
Pubic Law 84-99 program. An increase is proposed to the minimum repair 
cost for the rehabilitation of flood risk management projects from 
$15,000 to $50,000 and is necessary to warrant Federal involvement. 
Considerations in setting a minimum damage threshold include the Corps' 
cost to complete Project Information Reports, experience with the 
application of the existing minimum damage threshold, and feedback from 
non-Federal sponsors regarding their investments in operation and 
maintenance activities. These new clarifications ensure transparency 
for the non-Federal sponsor regarding the cost and economic 
justifcation requirements to qualify for consideration for assistance.
    Section 203.45 Emergency repair, rehabilitation, and restoration of 
Federal flood risk management projects. This section in the current 
regulation has been combined into one section under proposed Sec.  
203.44. In addition, the exception found in the current regulation 
regarding certain conditions to cooperation agreements for Federal FRM 
projects has been relocated to Sec.  203.114.
    Section 203.46 Restrictions. This section is largely unchanged. The 
Corps will not generally provide emergency repair, rehabilitation, and 
restoration assistance under Public Law 84-99 to address damages by 
occurrences other than floods or coastal storms. However, other natural 
disasters may impact the structural integrity of a FRM project and 
trigger an emergency flooding situations. Those cases are proposed to 
be evalauted on a case-by-case basis.
    Section 203.47 Modifications to flood risk management projects 
during rehabilitation. Changes are necessary to implement provisions 
for the authority under Subsection 3029(a) of WRRDA 2014 and Section 
1176 of WRDA 2016, which authorize modification to flood risk 
management projects under certain conditions. This section proposes to 
prescribe how a non-Federal sponsor may request modification of an 
existing flood risk management project that is undergoing 
rehabilitation under Public Law 84-99 in order to address major 
deficiencies or in certain circumstances to increase the level of risk 
reduction or pump station capacity.
    The proposed section (a) provides the criteria for when the Corps 
would consider requests for a modification to address major 
deficiencies. It also provides examples of allowable features of 
modifications to address major deficiencies, such as incorporating 
features to make the overall levee system more durable (e.g., low 
sills, riprap, and hardening features), constructing setback levees, or 
floodproofing.
    The proposed section (b) provides allowances for consideration of a 
new set of modifications to increase the pre-flood level of risk 
reduction or pump station capacity. New criteria are also proposed for 
consideration under these types of modifications.
    The proposed criteria in both subsections would ensure that the 
modifications are appropriate to undertake through the Public Law 84-99 
program. This limitation will ensure the Corps can give continue to 
give priority to short-term emergency repairs and to the rehabilitation 
and restoration of projects that have sustained extensive damage. Where 
a non-Federal sponsor wants to construct major modification of a flood 
or coastal storm risk management project after a flood or coastal 
storm, the Corps is able to provide technical and planning assistance 
outside of the Public Law 84-99 program.
    In addition, a new section is proposed to outline the procedures 
for a request for modifications to ensure a consistent and transparent 
process. Also, new sections are proposed to clarify cost-sharing 
requirements with the non-Federal sponsor, to provide the requirement 
for modifications to be economically justified, and to clarify that 
modifications will not be undertaken under Public Law 84-99 to achieve 
a purpose that is not related to flood risk management, as those are 
outside the bounds of the intent of Public Law 84-99 program.
    Section 203.48 Inspections and risk assessments for flood risk 
management projects. Editorial changes and removal of duplicative 
information are proposed. For example, inspection activities are now 
proposed to be prescribed in Sec. Sec.  203.42 and 203.43 as a 
component of the broad set of non-Federal sponsor's risk management 
activities and requirements in the IEAs and CEAs and as such can be 
removed from this section. Much of the content as described in the 
current inspection procedures is now included in the IEA and CEA 
descriptions as part of the proposed risk-informed approach for 
information to be provided by the non-Federal sponsor.
    Section 203.49 Levee Management Guide. The existing Sec.  203.49 
(Rehabilitation of hurricane and shore protection projects) is proposed 
to be removed in its entirety as the contents are now found in Subpart 
E. The existing Sec.  203.50 content on non-structural alternatives is 
moved to the proposed Subpart F. The current Sec.  203.51 is now moved 
and renumbered as this proposed section. Only minor changes are 
proposed for consistency with the proposed changes herein (e.g., 
referring to eligible projects as opposed to ``active'' projects under 
the inspection-only RIP).
    Section 203.50 System-wide improvement framework. This proposed new 
section implements Section 3011 of WRRDA 2014, which provides that a 
levee system shall remain eligible for rehabilitation assistance under 
Public Law 84-99 as long as the system's non-Federal sponsor(s) 
continues to make satisfactory progress under an approved system-wide 
improvement framework (SWIF). As proposed, a SWIF is a plan developed 
by a non-Federal sponsor(s) and accepted by the Corps to conduct a

[[Page 68392]]

series of improvements to a levee system (or multiple levee systems 
within a watershed) to address system-wide deficiencies that are 
complex or time-consuming to correct.
    The proposed changes ensure committed non-Federal sponsors have the 
opportunity to transition their levees over time to Corps standards. By 
using a SWIF, non-Federal sponsors can prioritize deficiencies to 
address the highest risk first to achieve system-wide risk reduction. 
In the requirements for a SWIF, the proposed rule recognizes that some 
non-Federal sponsors may also need to engage at the Federal, State, and 
local levels to address complex levee system issues in a more long-
term, comprehensive approach to identify solutions that optimize 
resources; prioritize improvements and corrective actions based on 
risk; and coordinate overlapping or competing programs and 
requirements. The Corps also is proposing to expand the use of a SWIF 
to maintain the eligibility of these non-Federal sponsors where they 
are making progress to correct complex system-wide issues or to address 
a complex natural resources issue such as consultation/mitigation 
actions for resources subject to the Endangered Species Act or Tribal 
treaty rights.
Subpart E--Rehabilitation Assistance for Coastal Storm Risk Management 
(CSRM) Projects
    Subpart E is proposed to prescribe Rehabilitation Assistance 
activities specific to CSRM projects formerly found in Subpart D of the 
2003 version of 33 CFR part 203.
    Section 203.61 General. Minor changes are proposed to the current 
Sec.  203.49(a) to update the terminology from hurricane and shore 
protection projects to CSRM projects. In addition, the proposed 
language states that the Corps may include modifications to a CSRM 
project to address major deficiencies and describes the circumstances 
where nonstructural alternatives may be employed.
    This proposed revised section clarifies that emergency repair, 
rehabilitation, and restoration assistance for Federal CSRM projects 
generally is limited to the project's design profile template. However, 
at the request of the non-Federal sponsor, the Corps may evaluate 
restoration to a pre-storm profile as a restoration alternative where 
the pre-storm profile is greater than the design profile template and 
is deemed necessary to ensure adequate functioning of the project. The 
current regulation text states that the assistance is limited to the 
pre-storm condition that allows for adequate functioning of the 
project.
    This proposed language implements Subsection 3029(a) of WRRDA 2014, 
under which the Corps would be able to restore hurricane or shore 
protection works to the design level of risk reduction. As proposed, 
rehabilitation assistance for CSRM projects generally is limited to the 
project's design profile, which is the level of restoration that will 
allow for the adequate functioning of the structure. The proposed 
language also implements Subsection 1160 of WRDA 2018, which allows 
consideration of restoration to the pre-storm profile, which is the 
profile that existed the day prior to the storm. In some circumstances, 
the pre-storm profile may be greater than the design profile and 
restoration to the pre-storm profile may be necessary to ensure 
adequate functioning of the project based on project-specific 
conditions, such as greater than anticipated erosion rates or as a 
result of climate change. The proposed language uses the project's 
design profile as the baseline profile for assistance, and also 
provides that the Corps may evaluate circumstances when the pre-storm 
profile may be more appropriate. In addition, if restoration to the 
pre-storm profile is not necessary to ensure adequate functioning of 
the project, the proposed language clarifies that the Corps may use 
Public Law 84-99 funds to restore a beach to its the pre-storm profile 
only if the incremental costs above the costs to restore to the design 
profile are subject to the cost-sharing that would apply for periodic 
nourishment and the non-Federal sponsor requests the Corps to proceed 
on that basis. This would ensure the Corps does not default to and 
cover the costs for the restoration to the pre-storm profile where that 
exceeds what the Corps views as required for the adequate functioning 
of the project.
    The proposed language also clarifies that an extraordinary storm is 
the event which triggers emergency repair, rehabilitation, and 
restoration assistance. A proposed definition for extraordinary storm 
is found in Sec.  203.63.
    The revised language also proposes to clarify that Federal CSRM 
projects would not be eligible for assistance if the non-Federal 
sponsor has not established and maintained adequate conditions of 
public use and access. This language also clarifies the roles and 
responsibilities of the non-Federal sponsor to qualify for Corps 
assistance to ensure the Corps is only repairing, rehabilitating, or 
restoring. Restoration activities beyond the authorized design profile 
or pre-storm condition (where determined appropriate) are considered 
beyond the scope of the Public Law 84-99 program.
    The proposed language also clarifies conditions for Corps 
assistance on Federal CSRM projects located completely or partially 
within a unit of the Coastal Barrier Resources System, focusing on 
whether or not an exception to a statutory limitation on Federal 
expenditures within the System has been provided.
    Section 203.62 Non-Federal sponsor responsibilities for CSRM 
projects. Clarification of non-Federal Sponsor roles and 
responsibilities are proposed in this new proposed section.
    Section 203.63 Emergency repair, rehabilitation, and restoration of 
Federal CSRM projects. This proposed section includes the proposed 
definition of ``extraordinary storm,'' which entails minor 
modifications to the existing definition found at Sec.  203.49(b)(6). 
Proposed modifications include removing the specific category of storm 
or exceedance frequency required to meet the term, but retains a 
finding that an extraordinary storm event is the cause of the 
substantial damage to a Federal CSRM project, such that it no longer 
provides significant risk reduction benefits. The key terms further 
proposed to be defined relate to the ``duration or severity'' and the 
``substantial damage'' incurred. The Corps has found over the 18 years 
since the regulation was last promulgated that limiting the term of 
``duration or severity'' to specific criteria of a particular category 
of storm event, for example, did not always correlate to the damage 
caused. For example, lower category repetitive storms within a short 
period of time may combine to have a greater effect than a single 
higher category storm. In addition, criteria are proposed for 
identifying when ``substantial damage'' has been incurred, some of 
which are carried forward from the current regulation with 
modifications to modernize costs. New criteria are also proposed with 
respect to ``substantial damage'', based on the Corps' experience in 
implementing the program, such as where only hard structural features 
of the project were damaged. One new subsection is proposed to be 
consistent with other aspects of the program, by including a 
requirement for the rehabilitation to be economically justified. The 
proposed rule also clarifies that Corps assistance under the Public Law 
84-99 program is available for a Federal CSRM project only if an 
extraordinary storm significantly compromised the project's ability to 
provided risk reduction.

[[Page 68393]]

    Section 203.64 Modifications to CSRM projects undergoing 
rehabilitation. The proposed changes implement Subsection 3029(a) of 
WRRDA 2014. This section prescribes how a non-Federal sponsor may 
request modification of an existing coastal storm risk management 
project as part of the emergency repair, rehabilitation, and 
restoration of the project under Public Law 84-99. As proposed, a 
modification is a work effort that consists of the addition of new 
features, elements, components, or items, or the upgrading of existing 
ones, which would improve the structural integrity of the project, but 
would not increase its level of risk reduction or have the effect of 
expanding the area for which the project is effective in reducing the 
coastal storm risk. The scope of modifications, as proposed, ensures 
the Corps can effectively perform short-term emergency repairs. This 
section maintains consistency, to the extent practicable, with previous 
discussions of modifications to FRM projects.
Subpart F--Nonstructural Alternatives to Rehabilitation of Flood Risk 
Management and Coastal Storm Risk Management Projects
    The content for this proposed subpart is currently found in Sec.  
203.50 but is proposed to be included as a separate subpart for clarity 
and ease of reference. The separate subpart also allows for more 
focused discussion of the nonstructural alternatives (NSAs) and how 
they may be applied for both FRM and CSRM projects. This proposed 
subpart replaces the current subpart F for ``Advanced Measures,'' which 
is now proposed in subpart I.
    Section 203.71 General. This proposed section implements Subsection 
3029(a) of WRRDA 2014 and provides for the consideration of NSAs in 
lieu of the repair and restoration of projects. As proposed, the Corps 
may implement nonstructural alternatives to the rehabilitation, repair, 
or restoration of flood or coastal storm risk management projects at 
the request of the non-Federal sponsor, which may include efforts to 
restore or protect natural resources, including streams, rivers, 
floodplains, wetlands, or coasts, if those efforts are related to 
achieving a reduction in the flood or coastal storm risk. The proposed 
section carries forward the Corps' existing policy regarding NSAs with 
minor changes.
    A requirement for an amendment to the project partnership agreement 
(PPA) is proposed to be included. This ensures the PPA is updated to 
reflect the changes of including NSAs in the project to ensure the PPA 
is consistent with the current state of the project.
    Another proposed change is to include more specificity as to when 
exceptions to the limitation on Corps expenditures may be approved. The 
current regulation provides that the limitation may be waived when 
compelling reasons exist but does not provide examples or criteria of 
what such compelling reasons may be. The proposed regulatory text 
provides specific criteria for when such exceptions may be approved for 
improved public awareness and transparency in the process.
Subpart G--Emergency Drinking Water Assistance: Contaminated Water 
Source
    The content for this proposed subpart is currently found in subpart 
E but is proposed to be moved to this subpart for organizational 
purposes as a result of edits made to other subparts. This proposed 
subpart replaces the current subpart G for ``Local Interests/
Cooperation Agreements,'' which is now proposed in subpart J. The 
subpart title is proposed to be renamed from the current ``Emergency 
Waters Supplies: Contaminated Water Sources and Drought Assistance'' to 
reflect the specific focus of this proposed subpart on the emergency 
drinking water assistance. The ``Drought Assistance'' topic is proposed 
to be covered in a new separate subpart at subpart H. This allows for 
improved clarity and discussion on these separate assistance efforts 
provided under the Public Law 84-99 program. The proposed subpart G 
carries forward the Corps' existing policy regarding drinking water 
assistance in response to contaminated water sources with minor 
changes.
    Section 203.81 General. Minor changes are proposed for improved 
readability. The duration of assistance is now proposed to be included 
in Sec.  203.82 but maintains the current text with minor changes for 
clarity.
    Section 203.82 Eligibility criteria and procedures. This proposed 
section proposes minor clarifying changes to the eligibility criteria 
and procedures contained in the existing subpart E. For example, a 
Tribal official, in addition to a Governor, may request assistance 
under this section. The proposed section also clarifies that a 
Cooperation Agreement (CA), as described in subpart J, is required for 
Corps assistance under this section.
Subpart H--Drought Assistance
    The content for this proposed subpart is currently found in subpart 
E but is proposed to be moved to this subpart for organizational 
purposes as a result of edits made to other subparts. This proposed 
subpart adds a new subpart to the CFR. The subpart title is proposed to 
be renamed from the current ``Emergency Waters Supplies: Contaminated 
Water Sources and Drought Assistance'' to reflect the specific focus of 
this proposed subpart on drought assistance. This allows for improved 
clarity and discussion on this distinct assistance effort provided 
under the Public Law 84-99 program. The proposed subpart H carries 
forward the Corps' existing policy regarding drought assistance with 
minor changes.
    Section 203.91 General. Minor changes are proposed for readability. 
In addition, the proposed language designates the Corps Deputy 
Commanding General for Civil and Emergency Operations as the official 
who designates a drought distressed area. The definitions included in 
the current regulation text at Sec.  203.62 are proposed to be included 
in this section.
    Section 203.92 Eligibility criteria and procedures. Editorial and 
clarifying changes are proposed. For example, a Tribal official may 
request assistance directly under this section, without a requirement 
to make this request through the Governor of the State in which the 
Tribal lands are located, as is currently provided in the existing 
regulation text. This proposed section also includes the contents of 
the written request, which now are provided in Sec.  203.62. This 
section also proposes that a CA is required for Corps assistance, which 
is consistent with CA requirements proposed for other Corps assistance 
efforts provided under this program. In addition, this section proposes 
to provide clarity and transparency to the responsibilities of the non-
Federal sponsor for drought assistance under this section.
Subpart I--Advance Measures
    The content for this proposed subpart is currently found in subpart 
F but is proposed to be moved to this subpart for organizational 
purposes as a result of edits made to other subparts. This proposed 
subpart adds a new subpart to the CFR. The proposed subpart I carries 
forward the Corps' existing policy regarding advance measures with 
minor changes.
    Section 203.101 General. Minor clarifying changes are proposed. The 
primary proposed modification is to allow a Tribal official, in 
addition to a Governor, to request assistance under this section.
    Section 203.102 Eligibility criteria and procedures. Minor changes 
are proposed for clarity and readability.

[[Page 68394]]

Subpart J--Cooperation Agreements
    The content for this proposed subpart is currently found in subpart 
G but is proposed to be moved to this subpart for organizational 
purposes as a result of edits made to other subparts. This proposed 
subpart adds a new subpart to the CFR. The proposed subpart J carries 
forward the Corps' existing policy regarding cooperation agreements 
with minor changes. The title is proposed to be modified from the 
current, ``Local Interests/Cooperation Agreements'' to only include 
``Cooperation Agreements'' for clarity on the specific focus of this 
section on the cooperation agreements and to eliminate unnecessary 
text.
    Section 203.111 General. Minor changes and removal of duplicative 
information are proposed for improved readability.
    Section 203.112 Non-Federal sponsor requirements. Minor changes and 
additional non-Federal sponsor requirements are proposed regarding 
consideration of the non-Federal sponsor's prior performance 
capability. In addition, elements of local cooperation required for 
asssistance provided under Subpart C are proposed.
    Section 203.113 Funds and cost sharing. Minor changes are proposed 
for improved clarity. In addition and as proposed, assistance provided 
under Subpart I in which ``permanent construction standards'' are 
applied would be now subject to a 35 percent non-Federal cost share. 
Cost share requirements are also proposed when accomplishing 
modification activities to flood or coastal storm risk management 
projects under Subparts D and E. These proposed changes are consistent 
with the cost-sharing for this type of work under other Corps Civil 
Works authorities. The proposed changes also implement provisions for 
the authority under Subsection 1161(a) of WRDA 2018 in which a non-
Federal sponsor may contribute funds for all costs in excess of 
benefits and subject to the conditions outlined in Sec.  203.113 of 
this proposed rule. Subsection 1161(b) of WRDA 2018 is not addressed in 
this proposal due to the sunset provision of that authorization. 
Instead, the Corps will continue to implement this provision through 
existing guidance (``Implementation Guidance for Section 1161 of the 
Water Resources Development Act of 2018, Cost and Benefit Feasibility 
Assessment, dated 12 April 2019.)
    Section 203.114 Project partnership agreements. Minor changes are 
proposed for improved clarity and readability.
    Section 203.115 Procedures and responsibilities upon completion of 
Corps work. Minor changes are proposed for improved clarity and 
reability.

Expected Benefits and Costs of Proposed Changes

    Over time, cities and towns have developed behind levees and along 
our coasts, and the nature of the risk posed by the movement of water 
in a flood or storm in our rivers, lakes, and coasts has changed due to 
a variety of factors (e.g., more stormwater runoff due to development, 
building of upstream dams, and climate change). As such a standards-
only-based approach (i.e., focus on the condition of the levee or beach 
only) may not address some of the sources of unacceptable risk. For a 
programmatic perspective, of the nearly 6,600 miles of levees currently 
in the Rehabilitation Program, 4,850 miles are Federal levees 
(federally authorized and constructed, but locally owned, operated, and 
maintained) and 1,750 miles are non-Federal levees (locally 
constructed, and locally owned, operated, and maintained). Overall, the 
changes to this regulation will provide greater flexibility to the 
Federal government and non-Federal sponsors and improve the 
effectiveness of Federal and local investments in riverine and coastal 
projects. These proposed changes take advantage of our increased 
understanding of project risks, moving from an assessment of how the 
project is expected to perform to a focus on a broader set of actions 
to reduce risk through effective operation, maintenance, planning, and 
execution actions; and to improve emergency warning and evacuation, and 
the ability of communities and individuals to understand and manage 
project-related risks. Informed by more detailed understanding of risk 
for flood risk management projects, the Federal government and non-
Federal sponsors are able to apply available resources to the risk 
management activities that most effectively reduce flood risk and avoid 
expenditures that have little risk reduction benefit.
    Changes reflected in this proposed rule are aimed at encouraging 
and enabling emergency managers, local officials, and members of the 
public to identify risks where loss of life may occur, and to prepare 
for actions when needed to move people out of harm's way. Non-Federal 
sponsors may see an initial cost increase associated with documenting 
activities necessary for eligibility for the Rehabilitation program, 
however the assessment and risk management activities are activities 
already required as non-Federal sponsors and will likely result in 
efficient use of available resources.
    The Corps uses the funds appropriated in its Flood Control and 
Coastal Emergencies account to pay for most of its costs for the work 
covered by this rule. Over a recent 10-year period--from fiscal year 
(FY) 2012 through FY 2021--the Corps spent an average of roughly $307 
million per year from this account on the Public Law 84-99 program. The 
Corps uses most of this funding to repair damaged flood and coastal 
storm risk management projects.
    The Corps also uses funds appropriated in its Operation and 
Maintenance account to pay a portion of the work used as data for 
eligibility determinations, outlined in this proposed rule. For 
example, the Corps spends an average of roughly $30 million per year to 
inspect locally owned levee systems that the Congress has authorized as 
a Corps project.
    We anticipate the costs to the Federal government to implement this 
program to remain roughly the same under the proposed rule.

Incorporation of Public Comments

    The Corps received input from State and Federal agencies, 
stakeholders, and other interested parties through the issuance of an 
Advanced Notice of Proposed Rulemaking (ANPR). The ANPR was published 
in the Federal Register on February 13, 2015 (80 FR 8014; Federal 
Register Document #2015-03033) soliciting public comment on specific 
policy revision concepts being considered for this proposed rulemaking. 
In response to the ANPR, we received 267 comments from 47 organizations 
and individuals. Of the 47 submissions, 23 were from non-Federal 
sponsors who contributed almost half (173) of all comments received. 
The remaining comments were received from eight individuals, five 
associations, four Tribal nation organizations, and four State 
government agencies. Overall, the comments were generally supportive of 
the policy revision concepts outlined in the ANPR and recognized the 
value of using risk-informed approaches for decision making. There was 
widespread support among commenters for continuing the System-wide 
Improvement Framework (SWIF) policy. Several commenters indicated some 
concerns about the proposed concepts and how they may impact non-
Federal sponsors. Commenters noted that the collaboration and 
flexibility provided by this framework positively contributed to good 
decision making, however several said that the current two-year 
timeframe

[[Page 68395]]

under the current SWIF policy was too short. There was a perception 
among commenters that the Corps would be deemphasizing the role and use 
of inspections for eligibility determinations and commented that 
continuing these inspections was important. Other Federal agencies 
mentioned the need for compliance with all applicable statutes. We have 
carefully considered all of these comments in developing the proposed 
rule.

References

    For additional information, see the following references:

33 CFR part 203 (68 FR 19359)
Engineer Regulation 500-1-1, ``Civil Emergency Management Program,'' 
September 30, 2001 Engineer Pamphlet 500-1-1, ``Civil Emergency 
Management Program Procedures,'' September 30, 2001
Engineering and Construction Bulletin, ``Interim Risk Reduction 
Measures (IRRMs) for Levee Safety,'' March 5, 2014
Levee Owner's Manual for Non-Federal Flood Control Works, March 2006
Memorandum, CECW-HS, 29 November 2011, subject: Policy for 
Development and Implementation of System-Wide Improvement Frameworks 
(SWIFs)
Memorandum, CECW-HS, 21 March 2014, subject: Interim Policy for 
Determining Eligibility Status of Flood Risk Management (FRM) 
Projects for the Rehabilitation Program Pursuant to Public Law 
(P.L.) 84-99
Memorandum, CECW-HS, 30 May, 2017, Subject: Implementation Guidance 
for Section 3029(a)(2) of the Water Resources Reform and Development 
Act (WRRDA) of 2014, Emergency Response to Natural Disasters; Repair 
or Restoration of Coastal Storm Risk Management Projects to Design 
Level of Protection

Procedural Requirements

    a. Review under the National Environmental Policy Act. As required 
by the National Environmental Policy Act (NEPA), the Department of Army 
prepares appropriate environmental analysis for its activities 
affecting the quality of the human environment. We have preliminarily 
determined that this proposed revision to the regulation, if finalized, 
would not constitute a major Federal Action significantly affecting the 
quality of the human environment because the part 203 regulations 
require that the Corps conduct an action-specific NEPA analysis before 
undertaking any activities that could potentially affect the quality of 
the human environment. The draft Environmental Assessment to support 
this preliminary determination is available at https://www.regulations.gov for public comment. The preliminary determination 
that an Environmental Impact Statement (EIS) will not be required for 
the promulgation of these regulations will be reviewed in consideration 
of the comments received.
    b. Unfunded Mandates Reform Act. The Unfunded Mandates Reform Act 
does not apply to this proposed rule because this rule provides policy 
for emergency assistance at the request of any State, Tribal, local 
government, or non-Federal sponsor. The Corps has also found, under 
section 203 of the Act, that small governments will not be 
significantly and uniquely affected by this rulemaking.
    c. National Technology Transfer and Advancement Act. This proposed 
rule does not involve technical standards and as such there is no 
anticipated requirements under this Act.
    d. Executive Order 12866. Executive Order 12866 (58 FR 51735, 
October 4, 1993), defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, Tribal, or local governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rule has been found to be a significant regulatory action, 
because it raises novel policy issues in how the Corps implements its 
Natural Disaster Procedures. Accordingly, the rule was submitted to the 
Office of Management and Budget (OMB) for review.
    e. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This 
proposed rule does not impose any information collection requirements 
for which Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act is required.
    f. Executive Order 13132: Federalism. This rule will not have 
substantial direct effects on the states, the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government.
    g. Regulatory Flexibility Act. The Regulatory Flexibility Act 
(RFA), as amended (5 U.S.C. 601 et seq.) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of the proposed rule on small entities, a 
small entity is defined as: (1) A small business based on SBA size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. The U.S. Army Corps of Engineers 
certifies that this proposed revision to the regulation does not have a 
significant economic impact on a substantial number of small entities. 
The proposed modifications to the regulation, and the regulation as a 
whole, do not place any regulatory burdens on small entities or have a 
significant economic impact on such entities. The regulation merely 
provides a construct under which the Corps can provide limited forms of 
emergency assistance and project rehabilitation to State, local, and 
Tribal governments upon request from the same. Although small entities 
might benefit from such emergency assistance--just as large entities 
and private individuals might--the provision of such assistance under 
the regulation does not place any burden on small entities nor does it 
entail direct involvement by such entities.
    h. Congressional Review Act (5 U.S.C. 801 et seq.). Pursuant to the 
Congressional Review Act, this proposed rule has not been designated a 
major rule, as defined by 5 U.S.C. 804(2). This proposed rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2), because it is not likely 
to result in: (1) An annual effect on the economy of $100,000,000 or 
more; (2) a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions; or (3) significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of the United 
States-based enterprises to compete with foreign-

[[Page 68396]]

based enterprises in domestic and export markets.
    i. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments. Under Executive Order 13175, the Federal government 
may not issue a regulation that has substantial, direct effects on one 
or more Tribal Nation, on the relationship between the Federal 
government and Tribal Nation, or on the distribution of powers and 
responsibilities between the Federal government and Tribal Nations, and 
imposes substantial direct compliance costs on those communities, and 
that is not required by statute, unless the Federal government provides 
the funds necessary to pay the direct compliance cost incurred by the 
Tribal Nation governments, or we consult with those governments. If 
complying by consulting, Executive Order 13175 requires us to provide 
the Office of Management and Budget, in a separately identified section 
of the preamble to the rule, a description of the extent of prior 
consultation with representatives of affected Tribal Nation 
governments, a summary of the nature of Tribal Nation concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13175 requires that agencies develop an effective 
process permitting elected officials and other representatives of 
Tribal Nation governments an opportunity to provide timely input in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities. This proposed revision to the 
regulation, and the regulation as a whole, do not impose significant 
compliance costs on any Tribal Nation or otherwise have substantial 
direct effects on the same. The regulation merely provides a construct 
under which the Corps can provide limited forms of emergency assistance 
and project rehabilitation to State, Tribal, and local governments upon 
request from the same. Whether the Corps provides emergency assistance 
under the regulation is completely at the discretion of State, local 
and Tribal governments. When requested, and otherwise permissible, the 
Corps' provision of such services does not affect the distribution of 
power or responsibilities between the Federal government and Tribal 
Nations. In the event that Tribal Nations have concerns with the 
proposed regulation, they may submit them through the normal comment 
process or to request government-to-government consultation.

List of Subjects in 33 CFR Part 203

    Disaster assistance, Flood control, Intergovernmental relations, 
Technical assistance, Water resources.

    Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).

    Accordingly, for the reasons set out in the preamble, 33 CFR part 
203 is proposed to be revised as follows:

PART 203--NATURAL DISASTER PROCEDURES: PREPAREDNESS, RESPONSE, AND 
RECOVERY ACTIVITIES OF THE CORPS OF ENGINEERS

Sec.
Subpart A--Introduction
203.11 General.
203.12 Definitions.
203.13 Federally-recognized Tribal Nations and the Alaska Native 
corporations.
203.14 Exceptions to policy.
Subpart B--Emergency Preparedness
203.21 Emergency preparedness assistance.
203.22 Emergency preparedness responsibilities of non-Federal 
sponsors.
Subpart C--Emergency Operations
203.31 General.
203.32 Flood response procedures.
203.33 Post flood response procedures.
Subpart D--Emergency Repair, Rehabilitation, and Restoration Assistance 
for Flood Risk Management Projects Damaged by Flood
203.41 General.
203.42 Initial eligibility assessment of non-Federal flood risk 
management projects.
203.43 Continuing eligibility assessment of Federal and non-Federal 
flood risk management projects.
203.44 Emergency repair, rehabilitation, and restoration of Federal 
and non-Federal flood risk management projects.
203.46 Restrictions.
203.47 Modifications to flood risk management projects undergoing 
emergency repair, rehabilitation, and restoration.
203.48 Inspections and risk assessments for flood risk management 
projects.
203.49 Levee guide.
203.50 System-wide improvement framework.
Subpart E--Emergency Repair, Rehabilitation, and Restoration Assistance 
for Federal Coastal Storm Risk Management Projects
203.61 General.
203.62 Non-Federal sponsor responsibilities for Federal CSRM 
projects.
203.63 Emergency repair, rehabilitation, and restoration of Federal 
CSRM projects.
203.64 Modifications to Federal CSRM projects undergoing emergency 
repair, rehabilitation, and restoration.
Subpart F--Nonstructural Alternatives to Emergency Repair, 
Rehabilitation, and Restoration of Flood Risk Management and Federal 
Coastal Storm Risk Management Projects
203.71 General.
Subpart G--Emergency Drinking Water Assistance: Contaminated Water 
Source
203.81 Authority and policy.
203.82 Eligibility criteria and procedures.
Subpart H--Drought Assistance
203.91 Authority and policy.
203.92 Eligibility criteria and procedures.
Subpart I--Advance Measures
203.101 General.
203.102 Eligibility criteria and procedures.
Subpart J--Local Interests/Cooperation Agreements
203.111 General.
203.112 Non-Federal sponsor requirements.
203.113 Funds and cost sharing.
203.114 Project partnership agreements.
203.115 Procedures and responsibilities upon completion of emergency 
repair, rehabilitation, and restoration work.

    Authority: 33 U.S.C. 701n.

Subpart A--Introduction


Sec.  203.11   General.

    (a) This part prescribes the regulations implementing the authority 
of the United States Army Corps of Engineers (Corps) to undertake 
natural disaster preparedness, response, and recovery pursuant to 
Public Law 84-99, as amended (33 U.S.C. 701n). In implementing this 
authority, the Corps sets priorities on a risk-informed basis.
    (b) Section 5 of the Flood Control Act of 1941, as amended (33 
U.S.C. 701n), commonly and hereinafter referred to as Public Law 84-99, 
authorizes an emergency fund to be expended at the discretion of the 
Chief of Engineers for: preparation for natural disasters; flood 
fighting and rescue operations; repair or restoration of flood risk 
management projects threatened, damaged, or destroyed by flood, and 
modifications or nonstructural alternatives thereto; emergency 
protection of federally authorized coastal storm risk management 
projects which are threatened, when such protection is warranted to 
protect against imminent and substantial loss of life and property; 
repair and restoration of federally authorized coastal storm risk 
management projects damaged or destroyed by wind, wave, or water of 
other than ordinary nature or modifications to the structure or project 
to address major deficiencies; for emergency dredging for restoration 
of authorized project depths for Federal navigable channels and 
waterways made necessary by flood, drought,

[[Page 68397]]

earthquake, or other natural disasters; and, for a period of 10 days 
subsequent to the end of a flood event, certain limited activities 
which are essential for the preservation of life and property, or to 
protect against significant threats to public health and welfare. The 
law also authorizes the Chief of Engineers to provide emergency 
supplies of clean water when a contaminated source threatens the public 
health and welfare of a locality and authorizes the Secretary of the 
Army to construct wells and transport water to areas determined to be 
drought distressed. For the purposes of provision of emergency supplies 
of clean water due to drought, the Secretary of the Army has delegated 
the authority vested in the Secretary under Public Law through the 
Assistant Secretary of the Army for Civil Works to the Chief of 
Engineers.
    (c) Form of assistance. The Corps implements the authority provided 
in Public Law through the provision of direct assistance to responsible 
State, Tribal, and local interests. Direct assistance to individual 
homeowners, individual property owners, or individual businesses is not 
permitted. Except as provided in Sec.  203.71(l)(9) of this part, the 
Corps does not transfer Federal funds to non-Federal sponsors or other 
responsible State, Tribal, or local interests for the non-Federal 
performance of assistance activities described in this part.
    (d) Availability of assistance. Except as provided in Sec.  
203.91(b)(2) of this part, the provision of Public Law 84-99 assistance 
is predicated upon a finding that similar assistance is not reasonably 
available to responsible State, Tribal, and local interests from other 
Federal agencies.


Sec.  203.12  Definitions.

    The following definitions are applicable throughout this part:
    Coastal storm. Hurricane and abnormal tide flooding.
    Coastal storm risk management (CSRM) project. A project designed, 
constructed, operated, and maintained to reduce the risk of damage to 
property and public infrastructure, and the risk of loss of life, from 
the non-riverine impacts of a coastal storm. These impacts generally 
result from a combination of wave action, storm surge, wind, and tidal 
effects during the storm. CSRM projects include Coastal Storm Damage 
Reduction (CSDR) projects, Hurricane/Shore Protection Projects 
(HSPP's), shore protection projects, shore protection structures, 
periodic nourishment projects, and similar terms. A CSRM project may 
include both structural measures (e.g., seawalls and jetties) and 
natural and nature-based features (e.g., dunes and beach berms).
    Emergency repair, rehabilitation, and restoration. Activities to 
repair, rehabilitate, rebuild, or replace a project after it has been 
damaged by a flood or coastal storm. Such activities may include 
realigning segments of a FRM project in which substantial cross-
sectional damage has occurred when the Corps determines that 
realignment would cost less or be more effective than an in-line 
repair.
    Federal coastal storm risk management (CSRM) project. A CSRM 
project operated and maintained by a non-Federal sponsor that was 
designed and constructed by the Corps or the non-Federal sponsor under 
Federal erosion control or water resources development authorities. A 
CSRM project, or portion of such a project, constructed by a non-
Federal sponsor is considered a Federal CSRM project only if the non-
Federal sponsor carried out construction in compliance with applicable 
authorities for non-Federal construction of water resources development 
projects, such as section 204 of the Water Resources Development Act of 
1986 (33 U.S.C. 2232) or section 221(a)(4) of the Flood Control Act of 
1970 (42 U.S.C. 1962d-5b(a)(4)).
    Federal flood risk management (FRM) project. A flood risk 
management (FRM) project that was designed and constructed by the Corps 
or the non-Federal sponsor under Federal flood control or water 
resources development authorities. A FRM project, or portion of such a 
project, constructed by a non-Federal sponsor is considered a Federal 
FRM project only if the non-Federal sponsor carried out construction in 
compliance with applicable authorities for non-Federal construction of 
water resources development projects, such as section 204 of the Water 
Resources Development Act of 1986 (33 U.S.C. 2232) or section 221(a)(4) 
of the Flood Control Act of 1970 (42 U.S.C. 1962d-5b(a)(4)).
    Flood risk management (FRM) project. A project designed, 
constructed, operated, and maintained to reduce the risk of damage to 
property and public infrastructure, and the risk of loss of life, from 
flooding.
    Governor. The chief executive of a State. All references to the 
``Governor'' or ``Governor of a State'' in this part also refer to the 
Governors of United States commonwealths, territories, and possessions; 
and to the Mayor of Washington, DC.
    Tribal Nation (Federally recognized Indian tribe or Tribal 
organization). An Indian or Alaska Native tribe, band, nation, pueblo, 
village, or community that the Secretary of the Interior acknowledges 
to exist as an Indian tribe pursuant to the Federally Recognized Indian 
Tribe List Act of 1994, 25 U.S.C. 5130.
    Interim risk reduction measure (IRRM). Actions that can be taken to 
reduce flood risks posed by a flood risk management project while long-
term solutions are being pursued.
    Lands, easements, rights-of-way, relocations, and disposal/borrow 
sites (LERRDs). For a project or other assistance activity, the 
required lands, easements, and rights-of-way, including those required 
for borrow or disposal of dredged or excavated material; facility and 
utility relocations; and improvements to land necessary to enable the 
disposal of dredged or excavated material.
    Levee segment. A discrete physical portion of a levee system that 
is managed by a single non-Federal sponsor.
    Levee system. A manmade barrier and ancillary drainage and 
conveyance facilities, managed by one or more non-Federal sponsors, 
that together function to reduce the risk that flood waters will 
inundate the leveed area during flood events.
    Maintenance. Short-term activities, normally accomplished at least 
annually, such as vegetation management and control of burrowing 
animals; and longer-term activities, such as repair, replacement, or 
rehabilitation of the project and its structural components. All of 
these activities are necessary for the proper care and efficient 
operation of an FRM or CSRM project.
    Non-Federal flood risk management (FRM) project. A FRM project that 
is not a Federal FRM project. The term may include a project 
constructed by the Works Progress Administration; a project constructed 
by, or under a program administered by, a Federal agency other than the 
Corps; or a project constructed under Federal emergency disaster 
authorities, including Public Law 84-99 or the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 
5121, et seq.) (hereinafter referred to as the Stafford Act).
    Non-Federal sponsor. A legally constituted public body with full 
authority and capability to perform the terms of the applicable 
agreement with the Corps and to pay damages, if necessary, in the event 
of its failure to perform. For Federal CSRM and Federal FRM projects, 
the applicable agreement is generally the Project Partnership

[[Page 68398]]

Agreement required by section 221(a)(1) of the Flood Control Act of 
1970 (42 U.S.C. 1962d-5b(a)(1)). For non-Federal FRM projects, the 
applicable agreement is the Cooperation Agreement for the provision of 
Public Law 84-99 assistance detailed in subpart J of this part. A non-
Federal sponsor may be a State, county, city, town, federally 
recognized Tribal Nation or Tribal organization, Alaska Native 
corporation, any political subdivision of a State, or a group of 
States.
    Nonstructural alternative. A measure or combination of measures 
that reduces human exposure or vulnerability to a flood or coastal 
storm without altering the nature or extent of the flooding. A 
nonstructural alternative may include efforts to restore or protect 
natural resources, including streams, rivers, floodplains, wetlands, or 
coasts, if those efforts will also reduce flood risk.
    Operation. Activities that are necessary for the safe and efficient 
functioning of a project to produce the benefits set forth in the 
project authorization. Operation includes exercising closure 
structures, providing information about the condition of the project to 
the public, and risk communication efforts.
    Rehabilitation. Activities that are necessary to bring a damaged or 
deteriorated project back to its original condition.
    Repair. Activities of a routine or non-routine nature that are 
necessary periodically to maintain a project in a well-kept condition.
    Replacement. Activities undertaken when the project, or a worn-out 
feature or component of the project, is replaced.
    Responsible state, tribal, and local interests. Non-Federal 
sponsors and State executive agencies, Tribal organizations, and 
offices of political subdivisions of the State with responsibility for 
disaster preparedness and emergency management within their respective 
jurisdictions.
    Tribal official. The elected or duly appointed official of a Tribal 
Nation that may request assistance on behalf of the Tribal Nation.


Sec.  203.13   Federally-recognized Tribal Nations and the Alaska 
Native corporations.

    Except as provided in Sec.  203.92(a), all requests/for Public Law 
84-99 assistance on Tribal lands held in trust by the United States, or 
on lands of the Alaska Natives, may be submitted to the Corps directly 
by the affected Federally recognized Tribal Nation or Alaska Native 
corporation, or through the appropriate regional representative of the 
Bureau of Indian Affairs, or through the Governor of the State where 
such lands are located.


Sec.  203.14   Exceptions to policy.

    Exceptions to any regulation or policy contained in this part may 
be requested by a non-Federal sponsor or responsible State, Tribal, or 
local interest. Exceptions must be requested in writing and will be 
reviewed and approved by the Corps Director, Contingency Operations and 
Office of Homeland Security.

Subpart B--Emergency Preparedness


Sec.  203.21  Emergency preparedness assistance.

    Public Law 84-99 authorizes an emergency fund for use in 
preparedness for emergency response to any natural disaster. The Corps 
may provide technical assistance to responsible State, Tribal, and 
local interests upon request to help support their efforts to prepare 
for a specific identified storm or forecasted high water event that may 
lead to flooding. Generally, the Corps will provide this technical 
assistance to support State, Tribal, and local efforts to inspect the 
condition of their FRM or Federal CSRM projects within their respective 
jurisdictions before an approaching flood or coastal storm to identify 
potential areas of vulnerability, and for related flood fight 
preparedness and training activities related to the expected flooding. 
Emergency preparedness activities include coordination, planning, 
training and conducting exercises with other Federal agencies and 
responsible State, Tribal, and local interests. These activities are to 
both lend expertise and to gain a greater understanding of State, 
Tribal, and local needs and requirements in order to mitigate against 
natural disasters as well as reduce impacts from future floods or other 
identified hazards. Technical assistance to support specialized studies 
or to develop long-term options for managing flood risks is beyond the 
scope of this emergency preparedness assistance.


Sec.  203.22  Emergency preparedness responsibilities of non-Federal 
sponsors.

    Assistance under Public Law 84-99 is intended to supplement the 
maximum efforts of responsible State, Tribal, and local interests. 
Assistance will not be provided when responsible State, Tribal, and 
local interests have made insufficient efforts to prepare for the flood 
event or other emergency, or when a request for assistance is based 
entirely on a lack of fiscal resources with which to respond to the 
flood event or other emergency. State, Tribal, and local interests' 
responsibilities include the following:
    (a) Operation and maintenance of FRM and Federal CSRM projects. FRM 
and Federal CSRM projects must be operated and maintained by non-
Federal sponsors.
    (b) Preparedness planning. Responsible State, Tribal, and local 
interests must ensure that appropriate and current plans are in place 
and ready to be implemented in the event of disaster. Considerations 
for these plans may include emergency operations procedures, updated 
contact information, identification of known problem areas that may 
need to be addressed, and public notification procedures.
    (c) Procurement/stockpiling. Responsible State, Tribal, and local 
interests must procure and stockpile sandbags, pumps, and other 
materials or equipment that might be needed during flood or coastal 
storm events. The Corps will provide assistance when the resources of 
responsible State, Tribal, and local interests are exhausted. Local 
interests must request such materials from State assets prior to 
seeking Corps assistance.
    (d) Training. Responsible State, Tribal, and local interests must 
train personnel to operate, maintain, and patrol FRM and Federal CSRM 
projects during crisis situations (e.g., floods, storms, ice jam 
conditions).
    (e) Floodplain management. Responsible State, Tribal, and local 
interests must develop and implement floodplain management plans that 
comply with federal, state, and local policy for management of 
activities in the floodplain intended to reduce loss of life, injuries, 
damage to property and other impacts associated with flooding.
    (f) Emergency repair, rehabilitation, and restoration assistance. 
To be eligible for emergency repair, rehabilitation, and restoration 
assistance under Public Law 84-99, non-Federal sponsors of FRM and 
Federal CSRM projects must take those actions necessary to maintain 
eligibility detailed in subparts D and E of this part.
    (g) IRRMs. Non-Federal sponsors are responsible for implementing 
IRRMs.

Subpart C--Emergency Operations


Sec.  203.31   General.

    (a) Emergency operations assistance under Public Law 84-99 is 
intended to supplement the efforts of responsible State, Tribal, and 
local interests. Assistance is limited to temporary activities and 
measures necessary to meet the immediate threat and to preserve life 
and property. Assistance

[[Page 68399]]

may include Corps assumption of control over the management and 
coordination of emergency operations; however, legal liability remains 
with the responsible State, Tribal, or local interests. Emergency 
operations assistance under Public Law 84-99 consists of direct 
assistance during the flood response and post flood response phases.
    (1) Flood response. Flood response assistance may include the 
provision of technical advice and assistance, performance of flood 
fighting activities, the procurement and issuance of flood fighting 
supplies and equipment (e.g., sandbags, lumber, polyethylene sheeting, 
and pumps), the lending of Federally owned equipment, performance of 
rescue operations, and installation of temporary emergency measures to 
strengthen FRM and Federal CSRM projects where no other federal 
emergency flood fighting authority exists. Assistance may be provided 
using emergency contracting procedures.
    (2) Post flood response. Post flood response assistance may include 
the provision of technical advice and assistance; cleaning of drainage 
channels, bridge openings, or structures blocked by debris deposited 
during a flood event, when the immediate threat of flooding of or 
damage to public facilities has not abated; removal of debris blockages 
of critical water supply intakes and sewer outfalls; clearance of the 
minimum amounts of debris necessary to reopen critical transportation 
routes or public facilities and services; and other activities intended 
to reduce the risk of imminent loss of life or significant damage to 
public property, or to protect against significant threats to public 
health and welfare. The Corps may use its Public Law 84-99 authority to 
furnish post flood response assistance for a period not to exceed 10 
days from the date of the request of the Governor or Tribal official to 
the Federal Emergency Management Agency (FEMA) for an emergency or 
disaster declaration under authority of the Stafford Act.
    (3) Rescue Operations. The Corps may assist in rescue operations 
during flood response. Any Corps equipment and personnel used in the 
operation should be directed by a local official such as a law 
enforcement officer, or Tribal/State/city/county officials duly 
appointed to conduct rescue operations.
    (b) Agricultural lands. Emergency operations assistance may be 
provided to a FRM project currently enrolled in the Rehabilitation 
Program detailed in subpart D of this part that primarily reduces the 
flood risk to agricultural lands only if the Corps determines that such 
assistance is justified based on a finding that, in the absence of 
Corps assistance, the project is likely to sustain significant damage 
as a result of the flood event, and such damage poses a significant 
risk to life safety or is likely to result in significant economic 
losses.
    (c) Non-Federal responsibilities during emergency operations. (1) 
During emergency operations, responsible State, Tribal, and local 
interests must commit their available resources, to include work force, 
supplies, equipment, and funds, to flood response and post flood 
response activities.
    (2) Non-Federal sponsors must furnish formal written assurances of 
local cooperation and legal liability for emergency operations 
assistance related to FRM and Federal CSRM projects by entering into 
Cooperation Agreements (CAs), as detailed in subpart J of this part, if 
such assurances were not provided in an agreement entered into under 
section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d-5b).
    (3) After the risk of flooding from a flood event or coastal storm 
has abated, the non-Federal sponsor for a FRM or Federal CSRM project 
is responsible for removing temporary improvements installed by the 
Corps at the flood response stage under Public Law 84-99 authority. 
This includes the removal and disposal of used sandbags.
    (4) Removal of ice jams is a non-Federal responsibility. In ice jam 
situations, the Corps may provide technical advice and assistance with 
flood fight operations. The Corps will not perform or provide advice on 
ice jam blasting operations.
    (5) Responsible State, Tribal, and local interests must promptly 
return any equipment loaned to such interests by the Corps immediately 
after emergency operations conclude. Responsible State, Tribal, and 
local interests must properly maintain the equipment while it is in 
their custody, and fund the cost of any repairs determined by the Corps 
to be necessary upon the equipment's return to Federal custody.
    (6) Responsible State, Tribal, and local interests must replace 
expendable supplies provided by the Corps or reimburse the Corps for 
the value of such supplies. Unused expendable supplies must be returned 
to the Corps promptly after emergency operations conclude.


Sec.  203.32   Flood response procedures.

    (a) Requesting flood response assistance. Requests for Corps flood 
response assistance should be in writing from the responsible State, 
Tribal, or local official, or his or her authorized representative, to 
the responsible Corps district commander. When time does not permit a 
written request, a verbal request from the responsible State, Tribal, 
or local official will be accepted.
    (b) Coordination. The Corps will coordinate all flood response 
assistance with the Tribal or State Emergency Management Agency or 
equivalent and will coordinate with other Federal agencies on an 
emergency basis to ensure there is appropriate consideration of 
environmental and cultural resources considering the exigency of the 
circumstances if there has not been coordination in advance of the 
emergency response.
    (c) Termination of Corps flood response assistance. Corps flood 
response assistance will be terminated when the flood waters recede 
below bank full or storm surge associated with a coastal storm has 
ended, absent a short-term threat (e.g., a significant storm front 
expected to arrive within a day or two) likely to cause additional 
flooding.
    (d) Loan or issue of supplies and equipment and Reimbursement 
Waiver Criteria for Issued Expendable Supplies. Corps supplies issued, 
or equipment loaned, to responsible State, Tribal, and local interests 
for use in supplementing their flood response operations must be hand 
receipted to the receiving agency. The responsible Corps district 
commander may waive the obligation of responsible State, Tribal, and 
local interests to replace or pay for expendable supplies if a Stafford 
Act Presidential disaster declaration has been made for the affected 
locality or the responsible State, Tribal, or local interests have 
issued over 500,000 sandbags from their own supplies in the applicable 
calendar year. All unused expendable supplies will be returned to the 
Corps when the operation is terminated.


Sec.  203.33   Post flood response procedures.

    (a) Requesting post flood response assistance. A written request to 
the responsible Corps district commander from the Governor or Tribal 
official, or authorized representative thereof, is required to receive 
Corps post flood response assistance. The written request will include 
verification that the Federal Emergency Management Agency (FEMA) has 
been requested to make an emergency or disaster declaration; a 
statement that the assistance required is beyond the State's or Tribal 
Nation's capability; specific damage locations; and the extent of Corps 
assistance required to supplement State or Tribal Nation efforts.

[[Page 68400]]

    (b) Coordination. The Corps will coordinate all post flood response 
assistance with the Tribal Nation or State Emergency Management Agency 
or equivalent and will coordinate with other Federal agencies on an 
emergency basis to ensure there is appropriate consideration of 
environmental and cultural resources considering the exigency of the 
circumstances if there has not been coordination in advance of the 
emergency response.
    (c) Duration of post flood response assistance. The Corps may 
furnish post flood response assistance for a period not to exceed 10 
days (the statutory limitation) from the date of the Governor's request 
to the Federal Emergency Management Agency for an emergency or disaster 
declaration under authority of the Stafford Act. After a request has 
triggered the 10-day period, a subsequent request for additional 
assistance resulting from the same flood or coastal storm event will 
not extend the 10-day period or trigger a new 10-day period.

Subpart D--Emergency Repair, Rehabilitation, and Restoration 
Assistance for Flood Risk Management Projects Damaged by Flood


Sec.  203.41   General.

    (a) Public Law 84-99 authorizes emergency repair, rehabilitation, 
and restoration of FRM projects damaged in a flood. The Rehabilitation 
Program implements this authority.
    (b) The Corps will conduct an Initial Eligibility Assessment (IEA) 
of non-Federal FRM projects, and a Continuing Eligibility Assessment 
(CEA) of Federal and non-Federal FRM projects, to determine eligibility 
for emergency repair, rehabilitation, and restoration assistance.
    (c) Initial eligibility criteria. The following criteria are 
required for initial eligibility:
    (1) Federal FRM projects. A completed Federal FRM project, or 
completed functional portion thereof, is granted initial eligibility 
for emergency repair, rehabilitation, and restoration assistance upon 
the provision of the written notice of completion of construction by 
the responsible Corps district commander to the non-Federal sponsor.
    (2) Non-Federal FRM projects. The following initial eligibility 
requirements must be met in order for a non-Federal FRM project to be 
considered eligible for emergency repair, rehabilitation, and 
restoration assistance:
    (i) Project must have a non-Federal sponsor as defined in Sec.  
203.14.
    (ii) Project may not provide exclusive benefits to an individual 
homeowner, property owner, or a business (to include an individual 
agricultural business or farming operation).
    (iii) Non-Federal sponsor must prepare and submit an initial 
eligibility application provided by the Corps for eligibility 
consideration.
    (iv) Project satisfies the initial eligibility assessment 
requirements outlined in Sec.  203.42 to verify and document the level 
of risk reduction provided by the FRM project and the status of 
maintenance of the project.
    (d) Continuing eligibility criteria. Non-Federal sponsors of 
Federal and non-Federal FRM projects must conduct the following flood 
risk management activities to maintain eligibility for emergency 
repair, rehabilitation, and restoration assistance:
    (1) Documentation that outlines the operation, maintenance, and 
inspection activities taken by the non-Federal sponsor to effectively 
operate and maintain the FRM project. The documentation will include 
the following information:
    (i) Identification of the project (or segment of a project). This 
should include the name of the project; the name of the non-Federal 
sponsor; a brief description of the project and its components; a brief 
discussion of the population and infrastructure relying on the project 
for flood risk reduction; and a map showing the project alignment and 
area benefitted by the project.
    (ii) Documentation of inspections conducted by the non-Federal 
sponsor since the last inspection of the project by the Corps.
    (iii) A schedule and summary of operation and maintenance 
activities performed since the last inspection of the project by the 
Corps.
    (2) Develop, maintain, and exercise an emergency plan. The non-
Federal sponsor of a FRM project must develop and exercise an emergency 
plan that outlines the planned preparedness activities and coordination 
actions taken by the non-Federal sponsor to effectively prepare for and 
manage the project during flood emergencies. If there is an existing 
emergency preparedness plan for the jurisdiction that covers the 
project area, the non-Federal sponsor's preparedness plan actions may 
be incorporated in these jurisdictional plans. In such cases, a 
separate emergency plan developed by the non-Federal sponsor is not 
necessary. The emergency plan will include the following information:
    (i) Roles and responsibilities of the project personnel as they 
relate to preparedness, response, and recovery associated with the 
project during emergency flood operations.
    (ii) Levels of emergency activation and the actions being taken at 
these various activation levels to ensure operations of the project 
during flood emergencies.
    (iii) Sharing Information. Communications and notification 
procedures to ensure that public officials and the public impacted by 
the projects are aware of FRM project condition and performance for the 
purpose of evacuation planning and land-use planning.
    (iv) Flood activation process to include notification procedures 
and warnings.
    (v) Evacuation notification process, emergency training and 
exercises.
    (vi) Emergency equipment and supplies that are maintained or 
required during flood emergencies.
    (3) Develop and implement public outreach activities to provide 
information regarding the FRM project's condition and risks to 
appropriate public officials and stakeholders of the project. The non-
Federal sponsor's activities must ensure that public officials and 
decision-makers are aware of and informed about the condition of the 
FRM project and the risks associated with the project, project 
inspection and risk assessment results are available to appropriate 
public officials and stakeholders, and public outreach activities are 
included in the Emergency Preparedness Plan prepared by the non-Federal 
sponsor under paragraph (d)(2) of this section.
    (4) Actively participate in project inspections and assessments 
conducted by the Corps as outlined in Sec.  203.48. Non-Federal 
sponsors of levee segments and systems must also participate in Corps 
Levee Safety Program activities including, but not limited to, risk 
assessments, coordination with FEMA, and risk communication activities.
    (5) Project satisfies the continuing eligibility assessment 
requirements outlined in Sec.  203.43 to determine if the FRM project 
maintains minimum engineering and maintenance criteria for continued 
eligibility.
    (e) Modifications. Public Law 84-99 provides authority to undertake 
certain modifications to FRM projects undergoing emergency repair, 
rehabilitation, and restoration. A modification is a work effort that 
is the addition of new features, elements, components, or items, or the 
upgrading of existing ones. Subject to certain conditions, the Corps 
will consider requests from non-Federal sponsors for modifications to 
address major deficiencies or to increase the design

[[Page 68401]]

level of risk reduction or pump station capacity. Policy, procedures, 
and requirements for modifications are described in more detail in 
Sec.  203.47.
    (f) System-wide improvement framework (SWIF). A SWIF may be 
developed to facilitate interagency collaboration to address complete 
levee system deficiencies and encourage the establishment of 
interagency teams to jointly identify and implement regionally 
appropriate, science-based solutions and tools to reduce risk 
associated with levees or levee systems while ensuring compliance with 
other Federal laws, such as the Endangered Species Act, as appropriate. 
Non-Federal sponsors will maintain or regain eligibility in the 
Rehabilitation Program while they are developing and implementing a 
SWIF. Policy, procedures, and requirements for a SWIF are described in 
more detail in Sec.  203.50.


Sec.  203.42   Initial eligibility assessment of non-Federal flood risk 
management projects.

    (a) The Corps will conduct an Initial Eligibility Assessment (IEA), 
including an onsite inspection, to verify project information, 
determine if a project meets the definition of a non-Federal FRM 
project and minimum engineering and maintenance criteria to ensure that 
the project is capable of providing reliable flood risk reduction, and 
determine the Federal interest in future emergency repair, 
rehabilitation, and restoration of the project. A non-Federal FRM 
project that is determined to meet the initial eligibility requirements 
will be eligible for rehabilitation assistance beginning on the date 
the responsible Corps district commander notifies the non-Federal 
sponsor of the project in writing of the determination. To be initially 
considered for rehabilitation assistance, the non-Federal sponsor for a 
non-Federal FRM project must submit an initial eligibility application.
    (b) Contents. The initial eligibility application must include:
    (1) Documentation of the level of risk reduction provided by the 
non-Federal FRM project that is expressed in terms of an exceedance 
frequency (e.g., a 20% chance of a levee being overtopped in any given 
year).
    (2) The most recent inspection results provided by the non-Federal 
sponsor.
    (3) Documentation of the status of maintenance, to include recent 
maintenance activities, and identification of deficiencies that 
compromise the ability of the non-Federal FRM project to provide the 
designed level of risk reduction.
    (c) Level of detail. The level of detail required in the initial 
eligibility application and on-site inspection will be commensurate 
with the complexity of the non-Federal FRM project, the potential for 
catastrophic failure of the project to cause significant loss of life, 
the potential for significant economic losses, and other special 
circumstances that may apply.
    (d) Assessment results. Information on the results of an IEA will 
be furnished in writing to the non-Federal sponsor of the non-Federal 
FRM project and will be maintained in Corps district offices.
    (1) The responsible Corps district commander will inform the non-
Federal sponsor in writing of the IEA determination. If the project 
meets the IEA criteria, the project will be eligible for emergency 
repair, rehabilitation, and restoration assistance. If the project does 
not meet the IEA criteria, the project will not be eligible for 
emergency repair, rehabilitation, and restoration assistance. The Corps 
will provide a summary of the IEA criteria that resulted in the 
decision.
    (2) If the non-Federal sponsor does not agree with the initial 
Corps eligibility assessment, the non-Federal sponsor may choose, at 
its own expense, to provide additional information relative to the 
eligibility criteria and request a reconsideration of the Corps 
determination.


Sec.  203.43   Continuing eligibility assessment of Federal and non-
Federal flood risk management projects.

    (a) Continuing Eligibility Assessments (CEA) for Federal and non-
Federal FRM projects are conducted periodically to ensure that projects 
continue to meet Corps initial eligibility criteria outlined in Sec.  
203.42 and the continuing eligibility criteria outlined in this 
section. A CEA assesses the non-Federal sponsor's implementation of its 
project operation, maintenance, and inspection activities; emergency 
planning; and sharing information about FRM project condition and 
performance. A CEA also seeks to detect changed project conditions that 
could impact project performance. An acceptable CEA determination is 
required to retain eligibility for emergency repair, rehabilitation, 
and restoration assistance.
    (b) Contents. Continuing eligibility assessment consists of:
    (1) Verification that initial eligibility criteria outlined in 
Sec.  203.42 continue to be met.
    (2) A review of the operation, maintenance, and inspection 
activities. The Corps will verify that the non-Federal sponsor is using 
a risk-informed approach to prioritizing operation and maintenance 
activities and is regularly inspecting the project. The Corps will 
identify changes in project condition and/or consequences associated 
with the non-performance of the project.
    (3) A review of emergency plan and associated activities. The Corps 
will verify the emergency plan is regularly updated and exercised.
    (4) A review of information sharing/outreach activities 
accomplished about FRM project condition and performance.
    (5) A review of participation in project inspections and 
assessments conducted by non-Federal sponsor and/or the Corps.
    (c) Assessment Results. Information on the results of a CEA will be 
furnished in writing to the non-Federal sponsor of the Federal or non-
Federal FRM project and will be maintained in Corps district offices.
    (1) The responsible Corps district commander will inform the non-
Federal sponsor in writing of the CEA determination. If the project 
meets the CEA criteria the project will retain eligibility for 
emergency repair, rehabilitation, and restoration assistance. If the 
project does not meet the CEA criteria the project will no longer be 
eligible for emergency repair, rehabilitation, and restoration 
assistance. The Corps will provide a summary of the CEA criteria that 
resulted in the decision.
    (2) The Corps will inform the non-Federal sponsor of the Corps' 
determination of the project's ability to reliably provide a level of 
risk reduction and the maintenance that must be accomplished to provide 
that level of risk reduction for the non-Federal sponsor's information 
and use in understanding risk and planning future maintenance 
activities.
    (3) If the results of a Corps eligibility assessment are not 
acceptable to the non-Federal sponsor, the non-Federal sponsor may 
choose, at its own expense, to provide additional information relative 
to the eligibility criteria and request a reconsideration of the Corps 
determination.
    (d) Regaining eligibility. A Federal or non-Federal FRM project 
determined by the Corps to not meet continuing eligibility requirements 
will remain ineligible for emergency repair, rehabilitation, and 
restoration assistance until such time as the continuing eligibility 
criteria are met. Follow-up inspections can be made by the Corps to 
monitor progress in correcting deficiencies when warranted.

[[Page 68402]]

Sec.  203.44   Emergency repair, rehabilitation, and restoration of 
Federal and non-Federal flood risk management projects.

    (a) Eligibility for emergency repair, rehabilitation, and 
restoration assistance. An FRM project is eligible for emergency 
repair, rehabilitation, and restoration assistance if the project has 
received a favorable determination on the IEA and subsequent CEAs, the 
damage was caused by the flood event, the work is economically 
justified, and the work is not otherwise prohibited by subpart D. The 
Corps will comply with all applicable environmental compliance 
requirements prior to any emergency repair, rehabilitation, or 
restoration of the project.
    (b) Work at non-Federal sponsor expense. The Rehabilitation Program 
will cost share the work required to restore the non-Federal FRM 
project to its pre-flood event condition, as documented in the most 
recent inspection, as well as any costs necessary to comply with 
environmental requirements in accordance with cost share provisions in 
Sec.  203.113. If deficient or deferred project maintenance is 
outstanding when damage to an FRM project occurs, then the deficient 
and deferred maintenance will be accomplished by or at the expense of 
the non-Federal sponsor. At the earliest opportunity prior to 
commencement of emergency repair, rehabilitation, and restoration work, 
the responsible Corps district commander will inform the non-Federal 
sponsor in writing of any work that must be accomplished at non-Federal 
sponsor expense.
    (c) Nonconforming works. The Corps will not provide emergency 
repair, rehabilitation, and restoration assistance for any non-Federal 
FRM project constructed or modified without the appropriate Federal, 
State, Tribal, and local permits, or waivers thereof.
    (d) Cooperation agreements. A Cooperation Agreement is required in 
accordance with subpart J.
    (e) Economic justification. Except as provided in Sec.  203.113(c) 
of this part, the emergency repair, rehabilitation, and restoration 
effort must be economically justified and the construction cost of the 
work, excluding the cost of LERRDs, must exceed $50,000. Construction 
costs greater than $50,000 do not preclude the Corps from making a 
determination that the required work is a maintenance responsibility of 
the non-Federal sponsor, and not eligible for emergency repair, 
rehabilitation, and restoration assistance.


Sec.  203.46   Restrictions.

    (a) Eligibility restricted to flood risk management projects. 
Structures built primarily for the purposes of channel alignment, 
navigation, recreation, fish and wildlife enhancement, land 
reclamation, habitat restoration, drainage, bank protection, or erosion 
protection, are generally ineligible for Public Law 84-99 emergency 
repair, rehabilitation, and restoration assistance.
    (b) Non-flood related emergency repair, rehabilitation, and 
restoration. The Corps will not generally provide emergency repair, 
rehabilitation, and restoration assistance under Public Law 84-99 to 
address damages by occurrences other than floods or coastal storms. 
However, there may be instances when other natural disasters may impact 
the structural integrity of a FRM project. In these instances, the 
provision of assistance will be evaluated on a case-by-case basis.


Sec.  203.47   Modifications to flood risk management projects 
undergoing emergency repair, rehabilitation, and restoration.

    (a) Modifications to address major deficiencies. (1) Modifications 
to address a major deficiency that also would increase the level of 
risk reduction provided prior to the most recent flood or floods are 
beyond the scope of this subsection and must be evaluated under 
paragraph (b) of this section. Where the modification would not 
increase the level of risk reduction provided prior to the most recent 
flood or floods, the Corps will consider requests by the non-Federal 
sponsor for a modification to address major deficiencies as part of the 
emergency repair, rehabilitation, and restoration of the project under 
Public Law 84-99 based on one or more of the following criteria:
    (i) The modification is expected to significantly decrease the risk 
of loss of life and property damage.
    (ii) The modification is expected to decrease the risk of loss of 
life, the risk of damage to property and public infrastructure, or the 
total life-cycle flood response, post flood response, and 
rehabilitation costs for the project.
    (iii) The modification is necessary to preserve the structural 
integrity or otherwise reduce the risk of failure of the existing 
project in a flood.
    (iv) The modification is the most cost-effective means of complying 
with substantive environmental requirements such as the Endangered 
Species Act.
    (2) Allowable features of modifications. Modifications to address 
major deficiencies may include:
    (i) Incorporating features to make the overall levee system more 
durable, such as low sills, riprap, hardening features, and similar 
measures.
    (ii) Incorporating landscaping features that promote safety and/or 
preserve natural protective features.
    (iii) Constructing set back levees.
    (iv) Constructing relief wells, if deemed an engineering necessity.
    (v) Installing cutoff walls and stability or seepage berms to 
address seepage issues.
    (vi) Floodproofing or otherwise reducing the risk of damage to 
essential project facilities in a flood.
    (b) Modifications to increase the design level of risk reduction or 
pump station capacity. The Corps will consider requests by the non-
Federal sponsor for modification of a FRM project to increase the 
design level of risk reduction, or to increase pump station capacity, 
as part of the emergency repair, rehabilitation, and restoration of 
that project under Public Law 84-99 if all of the following criteria 
are satisfied:
    (1) The Corps previously provided emergency repair, rehabilitation, 
and restoration assistance for that FRM project, or the flood response 
or post flood response assistance that the Corps provided to that area 
related to that project, at least twice in any 10-year period preceding 
the requested modification.
    (2) The requested modification is expected to significantly 
decrease the risk of loss of life, the risk of damage to property and 
public infrastructure, or the total life-cycle flood response, post 
flood response, and rehabilitation costs for the project.
    (3) The Corps has sufficient staffing and resources to accommodate 
the requested modification without adversely impacting the timeline for 
the provision of emergency repair, rehabilitation, and restoration 
assistance for other FRM projects in that Corps district's other areas 
of responsibility.
    (4) The requested modification is unlikely to result in a 
significant transfer of flood risk to areas outside the area protected 
by the project, and the non-Federal sponsor agrees to pay all costs 
associated with mitigating any transfer of flood risk determined to 
result from the requested modification.
    (c) Requests for modifications. The non-Federal sponsor for a FRM 
project must submit a request in writing to the responsible Corps 
district commander for consideration of modifications to address major 
deficiencies or to increase the design level of risk reduction or pump 
station capacity. The modification request must be provided

[[Page 68403]]

by the non-Federal sponsor concurrently with a request to determine 
repair eligibility as outlined in Sec.  203.44 or Sec.  203.45. The 
request must describe the modification and its purpose. Requests for 
modifications will require the approval of the Corps Director, 
Contingency Operations and Office of Homeland Security.
    (d) Cost sharing for modifications. The non-Federal sponsor for the 
FRM project must fund all costs associated with a modification that the 
Corps determines to exceed the cost of emergency repair, 
rehabilitation, and restoration.
    (e) Economic justification. Both the emergency repair, 
rehabilitation, and restoration work and the incremental cost of the 
modifications must be economically justified.
    (f) Timeline for modifications. Requested modifications must be 
carried out within three years once the emergency repair, 
rehabilitation, and restoration of the project under Public Law 84-99 
has begun.
    (g) Limitations of modifications. The Corps will not consider 
modifications of a FRM project under Public Law 84-99 to improve the 
condition of the project beyond its pre-flood condition, or to achieve 
a purpose that is not related to flood risk management. The Corps also 
will not consider modifications to a project under Public Law 84-99 
that would have the effect of extending the length of a FRM project 
beyond its current footprint.


Sec.  203.48   Inspections and risk assessments for flood risk 
management projects.

    The Corps will continue to conduct inspections and risk assessments 
of all Federal and non-Federal FRM projects eligible for emergency 
repair, rehabilitation, and restoration assistance. The primary purpose 
of the inspections and risk assessments is to assess and communicate 
the physical condition of the FRM project based on observations; to 
verify the adequacy of operation and maintenance; and to inform the 
non-Federal sponsors in the development and execution of their 
operation, maintenance, and inspection plan, emergency preparedness 
plan, and public outreach activities. Additionally, inspections are 
performed to verify that non-Federal sponsors of Federal FRM projects 
are fulfilling their responsibilities in accordance with Title 33--
Navigation and Navigable Waters; Chapter II--Corps of Engineers, 
Department of the Army (33 CFR part 208) requirements and project 
partnership/cooperation agreements.


Sec.  203.49   Levee guide.

    (a) Section 202(f) of the Water Resources Development Act of 1996 
(33 U.S.C. 701n(c)) directs the Corps to provide a levee manual (guide) 
to the non-Federal sponsor of any project determined to be eligible for 
emergency repair, rehabilitation, and restoration assistance.
    (b)(1) Eligible non-Federal flood risk management projects. The 
Corps will provide a levee guide to non-Federal sponsors of non-Federal 
FRM projects determined to be eligible for emergency repair, 
rehabilitation, and restoration assistance. The levee guide will 
include the criteria that must be met to gain and maintain eligibility 
in the rehabilitation program. Upon written request, the Corps will 
also provide a levee guide to the non-Federal sponsor of a non-Federal 
FRM project for which eligibility for assistance has not yet been 
evaluated to aid the non-Federal sponsor in preparing for an initial 
eligibility assessment.
    (c) Procedural requirements. The Corps will provide a levee guide 
to the non-Federal sponsor of a non-Federal FRM project during 
scheduled initial and continued eligibility assessments, or upon 
written request from a non-Federal sponsor to the responsible Corps 
district commander.


Sec.  203.50   System-wide improvement framework.

    (a) A system-wide improvement framework (SWIF) is a plan developed 
by the non-Federal sponsors of a levee system or systems and accepted 
by the Corps to maintain eligibility for emergency repair, 
rehabilitation, and restoration assistance while conducting a series of 
improvements to the levee system (or multiple levee systems within a 
watershed) to address system-wide deficiencies that are complex or 
time-consuming to correct.
    (b) SWIF process. The SWIF process is available to non-Federal 
sponsors of levee systems facing system-wide deficiencies as a way to 
facilitate the development of solutions to satisfy multiple 
requirements that apply to their levee systems while allowing the non-
Federal sponsors participating in the SWIF process to remain eligible 
for emergency repair, rehabilitation, and restoration assistance while 
addressing the deficiencies. The SWIF can be used to address 
deficiencies or issues that cannot be addressed through routine 
corrective actions, including:
    (1) A reduction in the level of risk reduction of a FRM project 
below the minimum basic eligibility criteria due to changed conditions.
    (2) Improvements that involve multiple levee systems.
    (3) Additional time or coordination is needed to adequately address 
complex considerations to ensure life safety.
    (4) Additional time or coordination is needed to address a complex 
natural resource issue such as consultation/mitigation actions for 
resources subject to the Endangered Species Act.
    (5) Additional time or coordination is needed to observe and 
protect the rights of Tribal Nations pursuant to treaty and statute.

Subpart E--Emergency Repair, Rehabilitation, and Restoration 
Assistance for Federal Coastal Storm Risk Management Projects


Sec.  203.61   General.

    (a) The Chief of Engineers is authorized to repair and restore 
Federal coastal storm risk management (CSRM) projects damaged or 
destroyed by wind, wave, or water action of other than an ordinary 
nature to either the pre-storm level or to their design profile, 
whichever provides greater risk reduction, when, in the discretion of 
the Chief of Engineers, such repair and restoration is required for the 
adequate functioning of the structure or project for hurricane or shore 
protection. Further, the Chief of Engineers may include modifications 
to these projects to address major deficiencies. Finally, the Chief of 
Engineers may implement nonstructural alternatives to the repair or 
restoration of the project if requested by the non-Federal sponsor.
    (1) Emergency repair, rehabilitation, and restoration assistance 
for Federal CSRM projects generally is limited to the project's design 
profile, which is the level of restoration that will allow for the 
adequate functioning of the project. In some circumstances, the pre-
storm profile, which is the profile that existed the day prior to the 
storm, may be greater than the design profile, and restoration to the 
pre-storm profile may be necessary to ensure adequate functioning of 
the project based on project-specific conditions, such as much greater 
than anticipated erosion rates. Accordingly, at the request of the non-
Federal sponsor for a Federal CSRM project, the responsible Corps 
district will evaluate restoration to the pre-storm profile as an 
additional restoration alternative. If the evaluation demonstrates that 
restoration to the pre-storm profile is not necessary to ensure 
adequate functioning of the project, restoration to the pre-storm 
profile may only proceed if the incremental costs above the costs to 
restore to the design profile are subject to the cost-sharing

[[Page 68404]]

that would apply for periodic nourishment. In these cases, a cost 
allocation between emergency repair, rehabilitation, and restoration 
assistance and periodic nourishment will be based on the necessary 
material volumes.
    (2) To be considered for emergency repair, rehabilitation, and 
restoration assistance, a Federal CSRM project must be substantially 
damaged by wind, wave, or water action of other than an ordinary 
nature, commonly known as an extraordinary storm. The determination of 
whether a storm qualifies as extraordinary will be made by the Corps 
Deputy Commanding General of Civil and Emergency Operations, who may 
delegate this authority to the Corps Director, Contingency Operations 
and Office of Homeland Security. Criteria for the extraordinary storm 
and substantial damage determinations are outlined in Sec.  203.63.
    (3) For Federal CSRM projects that include a beach, the Corps will 
provide emergency repair, rehabilitation, and restoration assistance 
only to the extent that the non-Federal sponsor has established and 
maintained adequate conditions of public use and access for the beach. 
The Corps will undertake emergency repair, rehabilitation, and 
restoration of a segment or reach of a Federal CSRM project that 
includes a beach for which the non-Federal sponsor has not established 
or maintained adequate conditions of public use and access only if the 
non-Federal sponsor pays all costs allocated by the Corps to emergency 
repair, rehabilitation, and restoration of the segment or reach.
    (4) For Federal CSRM projects located completely or partially 
within a unit of the Coastal Barrier Resources System, the Corps will 
provide emergency repair, rehabilitation, and restoration assistance 
only to the extent that the project, or segment or reach of the project 
located within the System, qualifies for an exception under section 6 
of the Coastal Barrier Resources Act (16 U.S.C. 3505) from the Act's 
prohibition on federal expenditures within the System (16 U.S.C. 3504). 
The Corps will undertake emergency repair, rehabilitation, and 
restoration of a segment or reach of a project located within the 
System that does not qualify for an exception only if the non-Federal 
sponsor pays all costs allocated by the Corps to emergency repair, 
rehabilitation, and restoration of that segment or reach.


Sec.  203.62   Non-Federal sponsor responsibilities for Federal CSRM 
projects.

    The non-Federal sponsor for a Federal CSRM project is responsible 
for complying with the Project Partnership Agreement, Project 
Cooperation Agreement (PCA), Local Cooperation Agreement (LCA), or 
similar document including any project specific O&M manuals. The non-
Federal sponsor must provide to the Corps an accurate beach survey of 
the project on at least an annual basis, unless this survey requirement 
is otherwise provided for by other project authority.


Sec.  203.63   Emergency repair, rehabilitation, and restoration of 
Federal CSRM projects.

    (a) Extraordinary storm. Emergency repair, rehabilitation, and 
restoration assistance is only available for Federal CSRM projects 
after an extraordinary storm event. An extraordinary storm is a storm 
that, due to duration or severity, causes substantial damage to a 
Federal CSRM project such that it no longer provides significant risk 
reduction benefits. Wave or water action of other than an ordinary 
nature caused by a geological event such as an earthquake, volcano, or 
tsunami may be determined to be an extraordinary storm. A determination 
of an extraordinary storm requires a finding both of ``duration or 
severity'' and of ``significant amount of damage'' incurred in 
accordance with the following criteria:
    (1) Duration or severity. ``Duration or severity'' may include but 
is not limited to the following characteristics of the event: storm 
surge, total water elevation, significant wave height, significant wave 
period, local sustained winds, wave direction, wave power or storm 
duration, which individually or collectively have exceeded the 90% 
cumulative distribution function value, as determined by analysis of 
regional historic storm characteristics for the project; or a storm 
that is larger than or equal to the design storm of the project, if a 
design storm has been identified; or a storm that is larger than or 
equal to a comparable standard identified in the project authority or 
design documents. ``Duration or severity'' may include repetitive 
storms within a single hurricane season or over a comparable short 
period of time where their combined effect meet these characteristics.
    (2) Substantial damage. Substantial damage may have occurred when 
one or more of the following criteria are satisfied:
    (i) The cost of the construction effort to effect repair of the 
Federal CSRM project for damages caused by the storm (exclusive of 
dredge mobilization and demobilization costs) exceeds two million 
dollars and is greater than 10 percent of the original costs required 
to construct the initial CSRM project template (expressed in current-
day dollars) of the Federal CSRM project.
    (ii) The cost of the construction effort to effect repair of the 
Federal CSRM project for damages caused by the storm (exclusive of 
dredge mobilization and demobilization costs) exceeds eight million 
dollars.
    (iii) More than 50 percent of the planned or historically placed 
sand for nourishment efforts for the Federal CSRM project is lost in a 
single season because of one or more extraordinary storms, which each 
meet the criteria for duration or severity.
    (iv) Only hard structural features of the project are damaged.
    (b) Project function compromised. Emergency repair, rehabilitation, 
and restoration assistance is available for a Federal CSRM project 
following an extraordinary storm only if the damage sustained by the 
project significantly compromises the project's ability to provide risk 
reduction.
    (c) Work at non-Federal sponsor expense. The Rehabilitation Program 
will cost share the work required to restore the CSRM project to its 
design profile, as documented in the most recent inspection, as well as 
any costs necessary to comply with environmental requirements in 
accordance with cost share provisions in Sec.  203.113. If deficient or 
deferred project maintenance is outstanding when damage to an CSRM 
project occurs, then the deficient and deferred maintenance will be 
accomplished by or at the expense of the non-Federal sponsor. At the 
earliest opportunity prior to commencement of emergency repair, 
rehabilitation, and restoration work, the responsible Corps district 
commander will inform the non-Federal sponsor in writing of any work 
that must be accomplished at non-Federal sponsor expense.
    (d) Economic justification. The rehabilitation of the Federal CSRM 
project must be economically justified.


Sec.  203.64   Modifications to Federal CSRM projects undergoing 
emergency repair, rehabilitation, and restoration.

    Public Law 84-99 provides authority to include modifications to 
Federal CSRM projects as part of the emergency repair, rehabilitation, 
and restoration under Public Law 84-99. The Corps will consider 
modifications proposed by the non-Federal sponsor to address a major 
deficiency of a Federal CSRM project that has been damaged by the 
effects of wind, wave, or water action of other than ordinary nature is 
limited to those modifications that address major deficiencies 
determined necessary to restore the adequate functioning of the

[[Page 68405]]

structure. Modifications that expand the area protected by a project, 
or that alter the design profile in a manner that substantially change 
the nature or magnitude of the project's benefits are beyond the scope 
of Public Law 84-99 assistance.
    (a) Principal purposes of modifications. If economically justified, 
a Federal CSRM project undergoing emergency repair, rehabilitation, and 
restoration under Public Law 84-99 may be modified at the request of 
the non-Federal sponsor. A modification consists of the addition of new 
features, elements, components, or items, or the upgrading of existing 
ones, which would improve the structural integrity of the project. The 
Corps will consider requests for such a modification of a Federal CSRM 
project to address major deficiencies based on one or more of the 
following criteria:
    (1) The modification is expected to significantly decrease the risk 
of loss of life and property damage without expanding the area 
protected or substantially changing the nature or magnitude of the 
project's benefits (e.g., armoring).
    (2) The modification is expected to decrease total Corps life-cycle 
rehabilitation costs (to include flood fight costs) for the project.
    (3) The modification is necessary to preserve the structural 
integrity of the existing project.
    (4) The modification is the most cost-effective means of complying 
with substantive environmental requirements such as the Endangered 
Species Act.
    (b) Allowable features of modifications. Modifications to address 
major deficiencies may include:
    (1) Adjusting the project's sand volume and distribution within the 
authorized profile features (dunes, storm berm, and beach) to address 
project performance deficiencies.
    (2) Adjusting nourishment sediment size and type or sand sources.
    (3) Strengthening or improving hard or hardened features of the 
project.
    (c) Cost sharing of modifications. The non-Federal sponsor for the 
Federal CSRM project must fund all costs associated with a modification 
that the Corps determines to exceed the cost of emergency repair, 
rehabilitation, and restoration. Costs assigned to emergency repair, 
rehabilitation, and restoration will be funded by the Corps. Cost 
sharing requirements are described in more detail in Sec.  203.113.
    (d) Requests for modifications. The non-Federal sponsor for a 
Federal CSRM project must submit a request in writing to the 
responsible Corps district commander for consideration of modifications 
to address major deficiencies. The modification request must be 
submitted by the non-Federal sponsor concurrently with a request to 
determine repair eligibility as outlined in Sec.  203.63. The request 
must include a description of the major deficiencies that the 
modification is intended to correct. Requests for modifications will 
require the approval of the Corps Director, Contingency Operations and 
Office of Homeland Security.
    (e) Limitations of modifications. The Corps will not consider 
modifications of a Federal CSRM project under Public Law 84-99 to 
improve the condition of the project beyond its pre-storm condition, or 
to achieve a purpose that is not related to coastal storm risk 
management.

Subpart F--Nonstructural Alternatives to Emergency Repair, 
Rehabilitation, and Restoration of Flood Risk Management and 
Federal Coastal Storm Risk Management Projects


Sec.  203.71  General.

    (a) Under Public Law 84-99, the Chief of Engineers is authorized, 
when requested by the non-Federal sponsor, to implement nonstructural 
alternatives to the emergency repair, rehabilitation, and restoration 
of FRM projects and Federal CSRM projects damaged by floods or coastal 
storms.
    (1) The option of implementing a nonstructural alternative project 
(NSAP) in lieu of structural emergency repair, rehabilitation, and 
restoration is available only to non-Federal sponsors of FRM or Federal 
CSRM projects eligible for emergency repair, rehabilitation, and 
restoration assistance in accordance with this part, and only upon the 
written request of the non-Federal sponsor.
    (2) A sponsor is required for implementation of an NSAP. The NSAP 
sponsor must be either a non-Federal sponsor, as defined in Sec.  
203.14, or another Federal agency with sufficient authority to jointly 
fund implementation of the NSAP and assume the responsibilities 
described in paragraph (d) of this section.
    (3) The Corps shall not be responsible for the operation, 
maintenance, or management of any NSAP implemented under this section.
    (4) Implementation of a nonstructural alternative for a Federal FRM 
project or Federal CSRM project requires an amendment to the project 
partnership agreement for the project. The Corps Director, Contingency 
Operations and Office of Homeland Security, will approve such 
amendments.
    (5) The criteria for evaluating a proposed NSAP include:
    (i) Reduction of overall risk of loss of life and future flood 
damages, including to areas that may be upstream or downstream of the 
project.
    (ii) Floodplain restoration.
    (iii) Provision or restoration of floodways.
    (iv) Habitat restoration, when incidental to the principal purpose 
of reducing vulnerability to a flood or coastal storm event.
    (6) The Corps may, in its sole discretion, reject any request for 
an NSAP that would:
    (i) Increase future Federal costs or economic damages;
    (ii) Have a significant adverse impact on the integrity, stability, 
or level of risk reduction of adjacent or nearby flood risk management 
projects; or
    (iii) Lead to an increased risk of loss of life or property during 
flood events.
    (c) Corps expenditures. Exclusive of the costs of investigation, 
report preparation, engineering and design work, and related costs, 
Corps expenditures for implementation of an NSAP are limited to the 
lesser of the Federal share of emergency repair, rehabilitation, and 
restoration construction costs of the project were the FRM or Federal 
CSRM project to be structurally rehabilitated in accordance with 
subparts D or E of this part, or the Federal share of computed benefits 
which would be derived from such structural rehabilitation. The Corps 
Director, Contingency Operations and Office of Homeland Security, may 
approve exceptions to the limitations on Corps expenditures when the 
following criteria are met:
    (1) The costs of the NSAP are economically justified.
    (2) The costs of the NSAP are reasonable in comparison to the 
estimated total life-cycle Corps flood response, post flood response, 
and rehabilitation costs for the FRM or Federal CSRM project.
    (3) Implementation of the NSAP will significantly reduce the risk 
of life loss and property damage in the area protected by the FRM or 
Federal CSRM project.
    (d) Responsibilities of the NSAP sponsor. Responsibilities of the 
sponsor for the NSAP include:
    (1) Operate and maintain the NSAP.
    (2) Provide, or arrange for and obtain, all funding required to 
implement the NSAP in excess of the limitation established in paragraph 
(c) of this section.
    (3) Acquire or provide all LERRDs required to implement the NSAP 
or, if the Corps elects to perform acquisition

[[Page 68406]]

or relocations, accept the transfer of ownership of, or jurisdiction 
over, any lands or interests in land acquired by the Corps.
    (e) Federal agency acting as NSAP sponsor. If another Federal 
agency serves as the NSAP sponsor, an interagency agreement between the 
Corps and the Federal agency serving as the NSAP sponsor is required, 
in accordance with paragraph (l) of this section.
    (f) Responsibilities of the non-Federal sponsor for a non-Federal 
flood risk management project, Federal flood risk management project, 
and/or Federal Coastal Storm Risk Management project (FRM/CSRM) 
requesting implementation of a NSAP.
    (1) The non-Federal sponsor for a FRM or CSRM project must request 
the Corps undertake a NSAP in lieu of emergency repair, rehabilitation, 
and restoration of the FRM or CSRM project, in accordance with the 
sponsor's applicable laws, ordinances, rules, and regulations.
    (2) If not also the NSAP non-Federal sponsor, the non-Federal 
sponsor for the FRM or CSRM project must:
    (i) Divest itself of responsibility to operate and maintain the FRM 
or CSRM project involved in the NSAP.
    (ii) Provide to the NSAP sponsor such lands or interests in lands 
as it may have which the Corps determines are necessary to implement 
the NSAP.
    (g) Allowable Public Law 84-99 expenses for NSAPs. Some of the 
allowable expenses relative to implementing a NSAP reflect:
    (1) Acquisition of land or interests in land.
    (2) Removal of structures, including manufactured homes, for 
salvage or reuse purposes.
    (3) Demolition and removal of structures, including utility 
connections and related items.
    (4) Debris removal and debris reduction.
    (5) Removal, protection, and relocation of highways, roads, 
utilities, cemeteries, and railroads.
    (6) Construction to promote, enhance, control, or modify water 
flows into, out of, through, or around the nonstructural project area.
    (7) Nonstructural habitat restoration, to include select planting 
of native and desirable plant species, native species nesting site 
enhancements, etc.
    (8) Total or partial removal or razing of existing reaches of a 
levee, to include removal of bank protection features and/or riprap.
    (9) Flood proofing or otherwise reducing the risk of flood related 
damages to essential public facilities within the non-structural 
project area.
    (10) Supervision, administrative, and contract administration costs 
of other expenses allowed in this paragraph.
    (h) Time limitation. Corps participation in development and 
implementation of an NSAP may cease, at the sole discretion of the 
Corps, three years after the date of approval of emergency repair, 
rehabilitation, and restoration of the damaged FRM or CSRM project or 
the date of receipt of the non-Federal sponsor's written request for an 
NSAP, whichever is earlier, if insufficient progress is being made to 
develop and implement the NSAP for reasons beyond the control of the 
Corps. In such circumstances, the Corps may, at its sole discretion, 
deny the emergency repair, rehabilitation, and restoration assistance 
that the non-Federal sponsor would have received for the damaged 
project in the absence of the proposed NSA.
    (i) Participation and involvement of other Federal, State, Tribal, 
local, and private interests. Nothing in this section shall be 
construed to limit the participation of other Federal, State, Tribal, 
local, and private interests in the development, implementation, or 
future operation and maintenance of an NSAP under this section, subject 
to the limitations of such participating interest's authorities and 
regulations.
    (j) Future assistance. After transfer of responsibility for all 
future operation, maintenance, repair, replacement, and rehabilitation 
of a NSAP to the NSAP non-Federal sponsor or the lead Federal agency, 
flood-related assistance pursuant to Public Law 84-99 will not be 
provided for the area for which the FRM or Federal CSRM project was 
effective in reducing the risk of flood or storm damages, except for 
rescue operations provided in accordance with Sec.  203.31(a)(3). As an 
exception, on a case-by-case basis, levees repaired or set back as part 
of the implementation of an NSAP may be considered for future flood-
related assistance by the Corps Director, Contingency Operations and 
Office of Homeland Security.
    (k) Environmental considerations. NSAPs are subject to the same 
environmental requirements, restrictions, and limitations as are 
structural rehabilitation projects.
    (l) Requirement for cooperation agreement (CA) or Interagency 
Agreement. (1) In order to clearly define the obligations of the Corps 
and of the non-Federal sponsor of a NSAP, a CA with the non-Federal 
sponsor is required. CA provisions for a NSAP are addressed in 
paragraphs (l)(2) through (l)(9) of this section. When another Federal 
agency serves as the NSAP sponsor, an interagency agreement between the 
Corps and the Federal agency is required. The provisions of the 
interagency agency agreement will be similar to, and consistent with, 
requirements detailed in paragraphs (l)(2) through (l)(9) of this 
section, with appropriate modifications based on the other Federal 
agency's authorized expenditures and programs.
    (2) In addition to the responsibilities described in paragraph (d) 
of this section, the CA will require the non-Federal sponsor of the 
NSAP or, in the case of a NSAP sponsored by another Federal agency, the 
non-Federal sponsor of the FRM or CSRM project requesting 
implementation of the NSAP, to hold and save the United States free 
from damages due to the project, except for damages due to the fault or 
negligence of the United States or its contractor.
    (3) The CA will provide that the Corps will assume up to 100 
percent of the costs of implementing a NSAP, subject to the limitations 
set forth in paragraph (c) of this section.
    (4) The CA may allow the non-Federal sponsor for a NSAP to use 
funding from other Federal agencies to fulfill its sponsor 
responsibilities, but only if the Federal agency providing the funding 
determines in writing that use of the funds for such purposes is 
specifically authorized by law.
    (5) The CA will allow the non-Federal sponsor for a NSAP to elect 
to assume responsibility for a larger percentage of eligible costs for 
the NSAP than the maximum provided for in this section.
    (6) The CA will include the prohibition of future assistance 
described in paragraph (j) of this section.
    (7) The CA will include acknowledgment of, and a statement of 
planned adherence to, Executive Order 11988, Floodplain Management, 3 
CFR part 117 (1977 Compilation), or as it may be revised in the future, 
by the NSAP non-Federal sponsor.
    (8) The CA will require the non-Federal sponsor for the NSAP to 
place legal restrictions on lands formerly protected by the FRM or 
Federal CSRM project that will preclude future use and development of 
such lands in a fashion incompatible with the purposes of the NSAP.
    (9) In the event the Corps does not elect to perform real property 
acquisition for a NSAP, the CA will provide for reimbursement of the 
costs incurred by the non-Federal sponsor to acquire lands or interests 
in land that are required for the NSAP, subject to the limitations set 
forth in paragraph (c) of this section. The Corps will not reimburse 
the non-Federal sponsor of a NSAP for the value of lands or interests

[[Page 68407]]

in land required for the NSAP that are publicly owned on the effective 
date of the CA, unless the lands or interests in land were acquired by 
the non-Federal sponsor for purposes of implementing a NSAP after the 
date of the flood or coastal storm event that damaged the eligible FRM 
or Federal CSRM project.

Subpart G--Emergency Drinking Water Assistance: Contaminated Water 
Source


Sec.  203.81   Authority and policy.

    (a) Authority. The Chief of Engineers is authorized to provide 
emergency supplies of clean water to any locality confronted with a 
source of contaminated water causing, or likely to cause, a substantial 
threat to the public health and welfare of the inhabitants of the 
locality.
    (b) Policy. (1) Any locality faced with a threat to public health 
and welfare from a contaminated source of drinking water is eligible 
for assistance.
    (2) Eligibility for assistance will be based on one or more of the 
following factors:
    (i) Exceedance of the maximum contaminant level for a contaminant, 
as established by the Environmental Protection Agency pursuant to the 
Safe Drinking Water Act (see 40 CFR part 141).
    (ii) The water supply has been identified as a source of illness by 
a Federal, State, or Tribal public health official. The specific 
contaminant does not have to be identified.
    (iii) An emergency (e.g., a flood or chemical spill) has occurred 
that has resulted in one of the following:
    (A) One or more contaminants entering the source on a sufficient 
scale to endanger health.
    (B) Inoperability of the equipment necessary to remove known 
contaminants.
    (iv) The presence of a contaminant is indicated based on other 
information available.
    (3) Corps assistance will be scaled to provide the minimum amount 
of water required to maintain the health and welfare requirements of 
the affected population. The quantity of water and the means of 
distribution will be at the discretion of the responsible Corps 
district commander, who will consider the needs of the individual 
situation, the needs of the affected community, and the cost-
effectiveness of providing water by various methods.
    (4) If a locality has multiple sources of water, assistance will be 
furnished only to the extent that the remaining sources, with 
reasonable conservation measures, cannot provide adequate supplies of 
drinking water.
    (5) Loss of water supply is not a basis for assistance under this 
authority.
    (6) Water will not be furnished for commercial processes, except as 
incidental to the use of existing distribution systems. This does not 
prohibit the furnishing of water for drinking by employees and on-site 
customers. Water for preparing retail meals and similar personal needs 
may be provided to the extent it would be furnished to individuals.
    (7) The permanent restoration of a safe supply of drinking water is 
the responsibility of local interests.
    (8) State, Tribal, and local governments must make full use of 
their own resources, including National Guard capabilities.


Sec.  203.82   Eligibility criteria and procedures.

    (a) Written request. The Governor or his/her authorized 
representative or the responsible Tribal official must submit a written 
request for assistance to the responsible Corps district commander. 
Requests must provide the following information:
    (1) Describe the State/Tribal/local efforts undertaken. Indicate if 
all reasonably available resources have been committed.
    (2) Identify the specific needs of the locality, and what is being 
requested from the Corps.
    (3) Identify additional commitments to be accomplished by the State 
or Tribal Nation, to include the entity or agency responsible for 
development of the permanent resolution.
    (4) Identify the non-Federal project sponsor.
    (b) Cooperation agreement. Corps assistance requires a non-Federal 
sponsor to enter in a Cooperation Agreement (CA) subject to subpart J 
of this part. This agreement must cover specified services and 
responsibilities of each party, and provision of a firm schedule for 
the non-Federal sponsor to provide normal supplies of water.
    (c) Duration of assistance. Corps assistance is generally limited 
to 30 days. Extension of this 30-day period requires execution of an 
amendment to the CA between the non-Federal sponsor and the Corps.
    (d) Non-Federal sponsor responsibilities. Non-Federal sponsors are 
responsible for:
    (1) Restoration of the routine supply of clean drinking water, 
including correcting any situations that cause contamination.
    (2) Adhering to the CA.
    (3) Implementation of reasonable water conservation measures.
    (4) Operating, fueling, and maintaining any leased or loaned 
equipment.
    (5) Removing and returning leased or loaned equipment in a fully 
maintained condition to the Corps within a reasonable timeframe after 
the assistance period in the CA has expired.

Subpart H--Drought Assistance


Sec.  203.91   Authority and policy.

    (a) Authority. The Chief of Engineers, acting for the Secretary of 
the Army, has the authority under certain conditions to construct wells 
for farmers, ranchers, and political subdivisions, and to transport 
water to political subdivisions, within areas determined to be drought-
distressed.
    (b) Policy. (1) Corps assistance to provide emergency water 
supplies will only be considered when eligible applicants have 
exhausted reasonable means for securing necessary water supplies, 
including assistance and support from other Federal agencies.
    (2) Before Corps assistance is considered under this authority, the 
applicability of other Federal assistance authorities must be 
evaluated. If these programs cannot provide the needed assistance, then 
maximum coordination should be made with appropriate agencies in 
implementing Corps assistance.
    (c) Definitions applicable to this subpart. (1) Construction. 
Initial construction, reconstruction, or repair.
    (2) Drought-distressed area. An area that the Corps Deputy 
Commanding General for Civil and Emergency Operations has determined, 
due to drought conditions, to have an inadequate water supply that is 
causing, or is likely to cause, a substantial threat to the health and 
welfare of the inhabitants of the impacted area, including the threat 
of damage or loss of property.
    (3) Eligible applicant. Any rancher, farmer, or political 
subdivision within a designated drought-distressed area that is 
experiencing an inadequate supply of water due to drought.
    (4) Farmer or rancher. An individual who realizes at least one-
third of his or her gross annual income from agricultural sources and 
is recognized in the community as a farmer or rancher. A farming 
partnership, corporation, or similar entity engaged in farming or 
ranching, which receives its majority income from such activity, is 
also considered to be a farmer or rancher, and thus an eligible 
applicant.
    (5) Political subdivision. A city, town, borough, county, parish, 
district, association, or other public body created by, or pursuant to, 
State law, having jurisdiction over the water supply of such public 
body.

[[Page 68408]]

    (6) Reasonable cost. In connection with the Corps construction of a 
well, means the lesser of:
    (i) The cost of the Corps to construct a well in accordance with 
these regulations, exclusive of:
    (A) The cost of transporting equipment used in the construction of 
wells.
    (B) The cost of investigation and report preparation to determine 
the suitability to construct a well.
    (ii) The cost to a private business of constructing such a well.
    (7) State. Any State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, Northern Marianas Islands, 
American Samoa, and the Trust Territory of the Pacific Islands.


Sec.  203.92   Eligibility criteria and procedures.

    (a) Written request. The Governor or his/her authorized 
representative must submit a request for assistance in writing to the 
responsible Corps district commander. Tribal Nations may request 
assistance through the Governor of the State where affected Tribal 
lands are located. Requests must provide the following information:
    (1) Describe the State, Tribal, and local efforts undertaken. 
Indicate if all reasonably available resources have been committed.
    (2) Identify the specific needs of the locality, and what is being 
requested from the Corps.
    (3) Identify additional commitments to be accomplished by the State 
or Tribe, to include the entity or agency responsible for development 
of the permanent resolution.
    (4) Identify the non-Federal project sponsor.
    (b) Cooperation agreement. Corps assistance requires a non-Federal 
sponsor to enter into a Cooperation Agreement (CA) subject to subpart J 
of this part. This agreement must cover specified services and 
responsibilities of each party, and provision of a firm schedule for 
local interests to provide normal supplies of water.
    (c) Duration of assistance. Corps assistance is generally limited 
to 90 days. Extension of this 90-day period requires execution of an 
amendment to the CA between the non-Federal sponsor and the Corps.
    (d) Non-Federal sponsor responsibilities. Non-Federal sponsors are 
responsible for:
    (1) Adhering to the CA.
    (2) Implementation of reasonable water conservation measures.
    (3) Operating, fueling, and maintaining any leased or loaned 
equipment.
    (4) Removing and returning leased or loaned equipment in a fully 
maintained condition to the Corps within a reasonable timeframe after 
the situation is resolved.
    (e) Well construction. Assistance to an eligible applicant for the 
construction of a well may be provided only on a cost-reimbursable 
basis. Equipment owned by the United States will be utilized to the 
maximum extent possible in exercising the authority to drill wells, but 
only when commercial firms cannot provide comparable service within the 
time needed to prevent the applicant from suffering significantly 
increased hardships from the effects of an inadequate water supply. 
Assistance may be provided when:
    (1) It is in response to a written request by a farmer, rancher, or 
political subdivision for construction of a well under Public Law 84-
99.
    (2) The applicant is located within an area that has been 
determined to be drought-distressed.
    (3) The determination has been made that:
    (i) The applicant, because of the drought, has an inadequate supply 
of water.
    (ii) An adequate supply of water can be made available to the 
applicant through the construction of a well.
    (iii) As a result of the drought, a private business could not 
construct the well within a reasonable time.
    (4) The applicant has secured the necessary funding for well 
construction from commercial or other sources or has entered into a 
contract to pay to the United States the reasonable cost of such 
construction with interest over a period of years, not to exceed 30, as 
the Assistant Secretary of the Army, Civil Works, deems appropriate.
    (5) The applicant has obtained all necessary Federal, State and 
local permits.
    (f) Transport of water.
    (1) Assistance may be provided when:
    (i) It is in response to a written request by a political 
subdivision for transportation of water; and
    (ii) The applicant is located within an area that has been 
determined to be drought-distressed.
    (2) Transportation of water by vehicles, small diameter pipeline, 
or other means as determined by the Corps will be at 100-percent 
Federal cost.
    (3) Corps assistance will be provided only in connection with water 
needed for human consumption. Assistance will not be provided for 
livestock, irrigation for crop production, recreation, commercial, or 
industrial processing under this authority.
    (4) Corps assistance will not include the purchase of water, or the 
cost of loading or discharging the water into or from any Government 
conveyance, to include Government-leased conveyance.
    (5) Equipment owned by the United States will be utilized to the 
maximum extent possible in exercising the authority to transport water, 
consistent with lowest total Federal cost.

Subpart I--Advance Measures


Sec.  203.101   General.

    Advance measures consist of those activities performed prior to 
flooding or flood fighting activities to protect and mitigate against 
loss of life and significant damages to urban areas, public facilities, 
flood and coastal storm risk management systems or critical 
infrastructure due to an imminent threat of unusual flooding.
    (a) Emergency work. Emergency work under this authority will be 
considered when requested by the Governor of a State or a Tribal 
official confronted with an imminent threat of unusual flooding. Corps 
assistance will be scaled to complement the maximum efforts of 
responsible State, Tribal, and local interests. Projects will be 
designed for the specific threat and temporary in nature.
    (b) Contingency planning. The Corps will consider providing 
contingency planning assistance for advance measures when requested by 
the Governor of a State or Tribal official. Contingency planning 
assistance consists of technical assistance and contingency planning 
activities to supplement responsible State, Tribal, and local interests 
in their efforts to plan for, and protect and mitigate against, loss of 
life and significant damages.
    (c) Definitions. (1) Imminent threat. A subjective statistical 
evaluation of how quickly a threat scenario can develop, and how likely 
that threat is to develop in each geographical location. Implicit in 
the timing aspect can be considerations of available time (e.g., when 
the next flood or storm event is likely to occur), season (e.g., a 
snowpack that will melt in the coming spring runoff), or of known 
cyclical activities. An imminent threat does not exist when a request 
for advance measures identifies threats that can be addressed through 
the water resources development project planning process.
    (2) Unusual flooding. A subjective determination that considers the 
potential for a flood or coastal storm event to cause flooding that 
approaches an area's flood of record or is otherwise catastrophic and 
that results in significant damage and disruption of the

[[Page 68409]]

normal functioning of a community for an extended period of time.


Sec.  203.102   Eligibility criteria and procedures.

    (a) Advance measures assistance. (1) Qualifying conditions. An 
imminent threat of unusual flooding must exist before the Corps will 
approve advance measures. The threat may be established by National 
Weather Service predictions, or by Corps determinations of a threat 
unusual flooding due to specific adverse and unusual conditions. The 
threat must be clearly defined to the extent that it is readily 
apparent that damages will be incurred if preventive action is not 
taken immediately.
    (2) Written request. The Governor or Tribal official must submit a 
request for advance measures assistance in writing to the responsible 
Corps district commander. All requests must include the following 
information:
    (i) Describe the efforts undertaken by non-Federal sponsors and 
responsible State, Tribal, and local interests. Verify that all 
available resources have been committed.
    (ii) Identify the specific needs and describe the advance measures 
assistance requested to address those needs.
    (iii) Identify additional commitments to be accomplished by non-
Federal sponsors or responsible State, Tribal, and local interests.
    (iv) Identify the non-Federal sponsor for the requested advance 
measures.
    (3) Feasibility. Advance measures must be temporary in nature, 
technically feasible, designed to deal effectively and efficiently with 
the specific threat, and capable of construction in time to prevent 
anticipated damages. A permanent standard of construction may be 
considered in certain circumstances in which a specific threat exists 
in a multi-year scenario such as wildfire burn scars and subsequent 
denuded landscapes and/or cyclical high lake level events on the Great 
Lakes.
    (4) Economic justification. Advance measures must be economically 
justified.
    (5) Cooperation Agreement. The requirements of subpart J of this 
part apply to the CA for advance measures. The non-Federal project 
sponsor must remove temporary works constructed by the Corps when the 
operation is over, at no cost to the Corps.
    (b) Contingency planning efforts for potential advance measures 
activities. Occasionally weather phenomena occur which produce a much 
higher than normal probability or threat of flooding which may be 
predicted several months in advance of occurrence or significant 
impact. Impacts on specific locations may be unpredictable, but 
regional impacts may have a high likelihood of occurrence. In such 
situations, the Corps may provide technical and contingency planning 
assistance to responsible State, Tribal, and local interests, 
commensurate with the predicted weather phenomena, based on written 
requests for assistance from responsible State, Tribal, and local 
interests. Specific proposed advance measures resulting from such 
planning efforts must be addressed as specified in paragraph (a) of 
this section.

Subpart J--Local Interests/Cooperation Agreements


Sec.  203.111   General.

    The Corps and the non-Federal sponsor will sign a Cooperation 
Agreement (CA) whenever assistance (other than short-term technical 
assistance) is furnished. A CA does not require approval by HQUSACE 
unless they contain special or unusual conditions.


Sec.  203.112   Non-Federal sponsor requirements.

    It is Corps policy that the provision of assistance under Public 
Law 84-99 will, insofar as feasible, require a non-Federal sponsor to 
provide, without cost to the United States, all LERRDs necessary for 
the assistance activities; hold and save the United States free from 
damages due to the assistance activities, exclusive of damages due to 
the fault or negligence of the United States or its contractor; and 
operate and maintain, in a manner satisfactory to the Corps, any works 
constructed by the Corps after completion. If any permanent works are 
constructed, then the non-Federal sponsor is required to operate and 
maintain the works in accordance with requirements determined by the 
Corps. In determining whether a non-Federal sponsor is capable of 
fulfilling the non-Federal obligations for a project, the Corps will 
consider the non-Federal sponsor's performance capability, taking into 
account any shortcomings in meeting prior commitments with Federal 
entities, including but not limited to past experiences with the Corps 
and any instances when the non-Federal sponsor has been listed as 
excluded or disqualified from receiving Federal assistance.
    (a) Provision of LERRDs. This item requires the non-Federal sponsor 
to provide LERRDs by acquiring all privately owned lands, easements, 
and rights-of-way required for the assistance activities; authorizing 
the Corps and its contractors to enter onto all lands, easements, and 
rights-of-way required for the assistance activities for purposes of 
carrying out the assistance activities; performing all facility and 
utility relocations required for the assistance activities; and 
constructing all improvements to land required to enable the disposal 
of dredged or excavated material for the assistance activities. The 
Corps will not generally credit the value of LERRDs provided by the 
non-Federal sponsor towards any required non-Federal cash contribution 
for an assistance activity. If more advantageous to the Federal 
government, the Corps, at the discretion of the responsible district 
commander, may assume responsibility for the provision of borrow and 
disposal areas required for an assistance activity. The scope and 
duration of easements and rights-of-way required for an assistance 
activity will be determined by the responsible district commander based 
on a review of the requirements for the assistance activity. 
Requirements that continue for as long as a non-Federal FRM project, or 
other public work constructed by the Corps or benefited by an 
assistance activity, remains operational generally warrant the 
provision of permanent easements and rights-of-way.
    (b) Hold and save clause. This obligation serves as legal 
protection for the United States. Where land required for an assistance 
activity is under tenancy, both the property owner and the tenant 
should acknowledge the non-Federal sponsor's signed CA.
    (c) Operate and maintain clause. This obligation protects the 
investment of Federal resources by requiring the non-Federal sponsor 
for an assistance activity to operate and maintain non-Federal FRM 
projects and other public works constructed by the Corps or benefited 
by the provision of assistance by the Corps. This obligation extends to 
all interrelated features of the non-Federal FRM project or other 
public work benefited by the provision of assistance by the Corps.
    (d) Removal of temporary works. The non-Federal sponsor is 
responsible for the removal of all temporary flood risk management 
structures and similar works constructed or installed by the Corps 
during the provision of flood response, post flood response, advance 
measures, or other assistance. This includes the removal of sandbags. 
The non-Federal sponsor must initiate action to remove the temporary 
works within 30 days after the flood threat has passed.
    (e) Equipment. The non-Federal sponsor must operate, fuel, and

[[Page 68410]]

maintain any leased or loaned equipment, and return the leased or 
loaned equipment in a fully maintained condition to the Corps within a 
reasonable timeframe after the emergency situation is resolved.
    (f) Adequacy of local cooperation. In determining the adequacy of 
the pledge of local cooperation, responsible district commander must 
consider the non-Federal sponsor's performance capability, considering 
any shortcomings in meeting prior commitments. Non-Federal sponsors 
should make provisions to establish and provide resources for a 
``Contingency Fund'' to meet future maintenance requirements if 
apparent inadequacies of protective works indicate maintenance costs 
will be unusually high. Non-Federal sponsors should make provisions to 
establish and provide resources for a ``Capital Improvement Fund'' to 
meet future costs of capital improvement projects such as replacement 
of culverts in levees, pump station equipment, etc.
    (g) Eligibility under other federal programs. The CA must be worded 
to allow the non-Federal sponsor to accept funding from other Federal 
programs to meet non-Federal obligations. For example, removal of 
temporary works will be without cost to the Corps under Public Law 84-
99 assistance but may not be at no cost to the United States. Use of 
another Federal agency's funds is contingent upon that agency providing 
the Corps a written determination that such usage is specifically 
authorized by law.


Sec.  203.113   Funds and cost sharing.

    In addition to the standard non-Federal obligations for an 
assistance activity that requires execution of a CA, non-Federal 
contributions to the assistance activity may be in the form of cash or 
in-kind contributions. The final terms agreed upon will be documented 
in writing and made a part of the CA before commencement of the 
assistance activity.
    (a) Provision of in-kind contributions. The non-Federal sponsor may 
minimize the amount of any required non-Federal cash contribution for 
an assistance activity by providing materials or services in-kind. In-
kind contributions are generally subject to the requirements in 2 CFR 
200.306, Cost sharing or matching. In-kind contributions for assistance 
activities may be in the form of labor, equipment, supplies, and/or 
services. Only in-kind contributions identified in a CA and carried out 
after execution of a CA are eligible to be accepted as part of the non-
Federal share of the cost of an assistance activity. In-kind 
contributions do not include the provision of LERRDs.
    (b) Cost sharing. (1) The Corps may assume up to 100 percent of 
eligible costs for emergency repair, rehabilitation, and restoration of 
a Federal FRM or Federal CSRM project and up to 80 percent of eligible 
costs for emergency repair, rehabilitation, and restoration of a non-
Federal FRM project.
    (2) The non-Federal sponsor may elect to assume responsibility for 
a larger percentage of eligible costs for emergency repair, 
rehabilitation, and restoration of Federal or non-Federal FRM projects 
or Federal CSRM projects.
    (3) The non-Federal sponsor will fund the cost to implement 
modifications of a FRM or Federal CSRM project. The cost to implement 
the modification is the difference between the cost to repair the 
project to it pre-flood event condition and the cost to repair the 
project with the requested modification.
    (4) The Corps will normally provide 100 percent of the cost of 
advance measures. However, for those projects where a permanent 
construction standard (vice a temporary standard) is used, the non-
Federal sponsor will normally be required to provide 35 percent of the 
total project cost.
    (5) All costs for LERRDs and costs to repair, rehabilitate, or 
replace project components or features that the Corps has determined do 
not meet Corps guidelines are the responsibility of the non-Federal 
sponsor and will not be accepted as part of any required non-Federal 
cost share.
    (6) The Corps will determine the dollar value of any in-kind 
contributions provided by the non-Federal sponsor.
    (c) Payment of Costs in Excess of Benefits for Emergency Repair, 
Rehabilitation, and Restoration Assistance. The Corps may carry out 
emergency repair, rehabilitation, and restoration of a FRM or Federal 
CSRM project that is not economically justified if the non-Federal 
sponsor provide funds or in-kind contributions in an amount sufficient 
to result in a benefit cost ratio of unity or higher for the emergency 
repair, rehabilitation, and restoration activities. All of the 
following criteria must be satisfied:
    (1) The non-Federal sponsor is willing to provide the necessary 
funds or in-kind contributions.
    (2) Deferred maintenance, deficient maintenance, or negligent 
operation did not contribute to the damage.
    (3) The proposed rehabilitation effort could benefit another water 
resources development project constructed by the Corps.


Sec.  203.114   Project partnership agreements.

    (a) Prior to the provision of assistance for, or at the location 
of, a Federal FRM or Federal CSRM project, the Corps will review the 
existing Project Partnership Agreement (PPA), Project Cooperation 
Agreement (PCA) or Local Cooperation Agreement (LCA) to determine if 
the PPA, PCA or LCA sufficiently protects the interests of the United 
States and the non-Federal sponsor.
    (b) If the existing PPA, PCA, or LCA is sufficient, in lieu of 
executing a CA, the responsible Corps district commander will notify 
the non-Federal sponsor in writing of the determination. The 
notification will identify any known cost share requirements and the 
requirements contained in Sec.  203.112. The notification will also 
advise the non-Federal sponsor that the terms of the executed PPA, 
specifically including the hold and save clause and the operation, 
maintenance, repair, replacement, and rehabilitation obligation, remain 
in full effect and apply as well to the work that will be undertaken 
pursuant to Public Law 84-99. Prior to the provision of assistance, the 
non-Federal sponsor must confirm in writing these responsibilities and 
acknowledge that it will be providing all required LERRDs.
    (c) If the responsible Corps district commander determines that the 
existing PPA, PCA, or LCA is insufficient to protect the interests of 
the United States and the non-Federal sponsor, the non-Federal sponsor 
must execute a CA in accordance with this subpart.


Sec.  203.115   Procedures and responsibilities upon completion of 
emergency repair, rehabilitation, and restoration work.

    The non-Federal sponsor is responsible for the future operation, 
maintenance, repair, replacement, and rehabilitation of all emergency 
repair, rehabilitation, and restoration work carried out by the Corps 
under Public Law 84-99.
[FR Doc. 2022-24543 Filed 11-14-22; 8:45 am]
BILLING CODE 3720-58-P