Corps of Engineers Agency Specific Procedures To Implement the Principles, Requirements, and Guidelines for Federal Investments in Water Resources, 12066-12105 [2024-02448]

Agencies

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

[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Proposed Rules]
[Pages 12066-12105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02448]



[[Page 12065]]

Vol. 89

Thursday,

No. 32

February 15, 2024

Part IV





Department of Defense





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Department of the Army, Corps of Engineers





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33 CFR Part 234





Corps of Engineers Agency Specific Procedures To Implement the 
Principles, Requirements, and Guidelines for Federal Investments in 
Water Resources; Proposed Rule

Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / 
Proposed Rules

[[Page 12066]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 234

[Docket ID: COE-2023-0005]
RIN 0710-AB41


Corps of Engineers Agency Specific Procedures To Implement the 
Principles, Requirements, and Guidelines for Federal Investments in 
Water Resources

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes Agency Specific Procedures 
(ASPs) for the Corps' implementation of the Principles, Requirements, 
and Guidelines for water resources investments. It provides a framework 
to govern how the Corps would evaluate proposed water resource 
investments, including identification of which Corps programs and 
activities are subject to the Principles, Requirements, and Guidelines. 
The Corps is proposing this rule in response to congressional direction 
provided in authorizing language in the Water Resources Development Act 
of 2020.

DATES: Comments must be received on or before April 15, 2024.

ADDRESSES: You may submit comments, identified by docket number COE-
2023-0005, using any of these methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected] and include the docket 
number, COE-2023-0005, in the subject line of the message.
    3. Mail: Stacey M. Jensen, 108 Army Pentagon, Room 3E474, 
Washington, DC 20310-0108.
    4. Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2023-0005. 
The public docket will include all comments exactly as submitted and 
without change and may be made available on-line at 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: Ms. Stacey M. Jensen, Acting Director 
for Policy and Legislation, Office of the Assistant Secretary of the 
Army (Civil Works), 108 Army Pentagon, Washington, DC 20310-0108, at 
(703) 459-6026 or [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Since the Rivers and Harbors Appropriations Act of 1903 (Pub. L. 
57-154), the Corps has been required to consider the benefits of water 
resources investments in relation to their costs. The Flood Control Act 
of 1936 (Pub. L. 74-738) called for the Federal government to improve 
navigable waters or their tributaries for flood control purposes if the 
benefits to whomever they may accrue are in excess of the estimated 
costs. Since then, the Corps has been developing tools and methods for 
developing and evaluating water resource plans and projects.
    Multi-objective water resource planning concepts on a comprehensive 
and nationally coordinated basis were central to the Water Resources 
Planning Act of 1965 (Pub. L. 89-80) and were reflected in Federal 
guidance, the Principles and Standards for Planning Water and Related 
Land Resources (P&S), issued by the Water Resources Council in 1973 (38 
FR 24778). The Water Resources Council was established by the Water 
Resources Planning Act of 1965 (Pub. L. 89-90) to assess and make 
recommendations on national water-related matters and policies (further 
information can be found at 18 CFR 701.3). The P&S reflected two 
Federal objectives for water resources planning, which were to enhance 
national economic development and to enhance the quality of the 
environment.
    Federal water policy moved away from this dual-objective concept 
with the 1983 Economic and Environmental Principles and Guidelines for 
Water and Related Land Resources Implementation Studies (P&G).\1\ The 
P&G combined the two objectives of the P&S into a single, integrated 
Federal objective, which was ``to contribute to national economic 
development consistent with protecting the Nation's environment, 
pursuant to national environmental statutes, applicable executive 
orders, and other planning requirements''. The Water Resources Council 
developed the P&G to guide the formulation and evaluation of 
alternatives in the project planning studies of four of the Federal 
water resources agencies, including the Corps. The Corps has 
implemented the P&G since 1983. The P&G provides that contributions to 
national economic development (NED) are the increases in net value of 
the national output of goods and services, expressed in monetary units. 
It also provides that contributions to NED are the direct net benefits 
that accrue in the planning area and the rest of the Nation.
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    \1\ https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf, last accessed on January 31, 2024.
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    In the P&G, four accounts were established to facilitate evaluation 
and display of effects of alternative plans. The only required account 
is the NED account. The other three accounts were: the environmental 
quality account, which displays nonmonetary effects on significant 
natural and cultural resources; the regional economic development (RED) 
account, which registers changes in the distribution of regional 
economic activity that result from each alternative plan; and the other 
social effects account, which registers plan effects from those other 
perspectives that are relevant to the

[[Page 12067]]

planning process, but are not reflected in the other accounts. Under 
the P&G, the Assistant Secretary of the Army for Civil Works (ASA(CW)) 
may grant an exception to allow the Corps to recommend a plan that is 
not the NED plan. In addition, each alternative plan must be formulated 
in consideration of four criteria: completeness, effectiveness, 
efficiency, and acceptability.
    In 1981, the Water Resources Council chairman requested reduced 
Council funding. The action was consistent with the Reagan 
Administration's position that states should play a more active role in 
water policy activities. All the organizational and staff planning 
functions of the Council and basin commissions were disbanded, and the 
revised set of ``Principles and Guidelines'' were issued in 1983 as one 
of the last formal actions of the Council. Although the Water Resources 
Planning Act has not been repealed and thus authorization of the 
Council remains statutorily, no funding for the Council has been 
appropriated since 1983 (CRS Report, May 11, 2009.) \2\
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    \2\ https://aquadoc.typepad.com/files/crs_report_35_years_water_policy_1973nwc_challenges_11may2009.pdf, 
last accessed on January 31, 2024.
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    Section 2031 of the Water Resources Development Act of 2007 (WRDA 
2007) (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) established a 
National Water Resources Planning Policy. The National Water Resources 
Planning Policy states that all water resource projects should reflect 
national priorities, encourage economic development, and protect the 
environment by: (1) seeking to maximize sustainable economic 
development; (2) seeking to avoid the unwise use of floodplains and 
flood-prone areas and minimizing adverse impacts and vulnerabilities in 
any case in which a floodplain or flood-prone area must be used; and, 
(3) protecting and restoring the functions of natural systems and 
mitigating any unavoidable damage to natural systems.
    Section 2031 of WRDA 2007 also called for the Secretary of the Army 
to revise the 1983 P&G for use by the Corps in the formulation, 
evaluation, and implementation of water resources projects. WRDA 2007 
required that these revisions to the P&G address the following: the use 
of best available economic principles and analytical techniques, 
including techniques in risk and uncertainty analysis; the assessment 
and incorporation of public safety in the formulation of alternatives 
and recommended plans; assessment methods that reflect the value of 
projects for low-income communities and projects that use nonstructural 
approaches to water resources development and management; the 
assessment and evaluation of the interaction of a project with other 
water resources projects and programs within a region or watershed; the 
use of contemporary water resources paradigms, including integrated 
water resources management and adaptive management; and evaluation 
methods that ensure that water resources projects are justified by 
public benefits.
    In 2014, the Council on Environmental Quality (CEQ) completed an 
interagency effort to update the 1983 P&G, which became effective on 
June 15, 2015 (79 FR 77460). This effort resulted in the Principles, 
Requirements and Guidelines (PR&G). CEQ developed the PR&G through this 
interagency process to improve Federal decisions on investments in 
water resources by giving more prominence to ecological, public safety, 
environmental justice, and related concerns.
    The PR&G, which govern how Federal agencies evaluate proposed water 
resource developments, include the following three components: (1) 
Principles and Requirements for Federal Investments in Water Resources 
(P&R, 2013,\3\) providing the overarching concepts that the Federal 
Government seeks to achieve through policy implementation and 
requirements for inputs into analysis of Federal investment 
alternatives; (2) Interagency Guidelines (IG, 2014,\4\) providing more 
detailed guidance for affected Federal agencies, including the 
Departments of the Interior, Agriculture, and Commerce, Environmental 
Protection Agency (EPA), the Corps, the Federal Emergency Management 
Agency (FEMA), and the Tennessee Valley Authority, for determining the 
applicability of the P&R; and (3) agency specific procedures (ASPs) 
providing agency specific guidance for identifying which programs and 
activities are subject to the PR&G. The Corps has not issued final ASPs 
to implement the 2013 PR&G.
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    \3\ https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf, last accessed 
January 31, 2024.
    \4\ https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf, last accessed January 
31, 2024.
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    Section 110 of the Water Resources Development Act of 2020 (WRDA 
2020) (Division AA of Pub. L. 116-260) directs the Army to issue its 
final ASPs necessary for the Corps' Civil Works program to implement 
the PR&G. Section 110 of WRDA 2020 also provides that the Army must 
develop Corps projects in accordance with the PR&G as well as Section 
2031 of WRDA 2007. The WRDA 2020 directs Army to provide notice and 
opportunities for engagement and public comments on the development of 
the ASPs. The Army is pursuing this rulemaking to provide codified 
direction for the Corps project planning process, which will achieve 
the purposes of the PR&G, with input from a robust and meaningful 
Tribal and public engagement. This proposed rule follows the general 
framework laid out in the PR&G. The Corps also reviewed and considered 
the ASPs developed by other Federal agencies in developing this 
proposed rule. This rulemaking seeks to formalize the planning 
framework of the Corps under the PR&G in a transparent manner, by 
providing the public an opportunity to comment on the proposed new 
planning paradigm and its requirements. The proposed ASPs would apply 
to plans, projects, or programs that are initiated after any final rule 
may take effect. The Corps would also apply the ASPs to plans, 
projects, or programs that have not yet issued a Draft Environmental 
Impact Statement or similar level of documentation on or before any 
final rule effective date. Note that Army, through the Assistant 
Secretary of the Army for Civil Works, is responsible for policy 
direction and oversight of the Army's Civil Works program, whereas the 
Corps has the lead in implementing the program. Hence this document 
refers both to the Army (for policy direction) and the Corps (for 
implementation responsibility). Although the proposed rule uses the 
language ``water resources development project'', which is consistent 
with the statutory language of section 110 of the Water Resources 
Development Act of 2020, and is the terminology generally used in Corps 
statutes and regulations, the Corps does acknowledge that its role has 
evolved over the years to include developing, managing, restoring, and 
protecting water resources. A more appropriate term to use throughout 
would be ``water resources projects'' rather than ``water resources 
development projects.'' Consistent with this approach, section 2031 of 
the Water Resources Development Act of 2007, the 2013 P&R, and the 2014 
Interagency Guidelines (IG) refer to ``water resources projects''. The 
proposed rule uses ``water resources development projects,'' which is 
the term that the Corps traditionally has used. The Army solicits 
comment on this issue.
    The Army received input from Tribes, Federal and State agencies, 
stakeholders, and other interested

[[Page 12068]]

parties through the issuance of the Federal Register Notice of Virtual 
Public and Tribal Meetings Regarding the Modernization of Army Civil 
Works Policy Priorities; Establishment of a Public Docket; Request for 
Input (Modernize Civil Works) that was published on June 3, 2022 (87 FR 
33756). This Notice solicited public comment on topics including the 
ASPs being considered for this proposed rulemaking. In response to the 
Notice, we received generally supportive comments on the policy 
revision concepts outlined in the Notice and the comments recognized 
the value of using more modern approaches for decision making. Many 
commenters mentioned the need to consider a broader set of benefits 
than can be captured by the Corps' traditional NED account, and many 
endorsed the effort to more fully incorporate climate change, to 
increase collaboration with Tribal, state, and local organizations, and 
to better incorporate the potential ecosystem costs and benefits of 
water resources investments.\5\
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    \5\ Summary document of comments received in response to the 
Federal Register Notice can be found at https://api.army.mil/e2/c/downloads/2022/12/01/d5bd08a7/written-comment-summary-for-prg-for-frn-to-modernize-civil-works.pdf, last accessed January 31, 2024.
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    For ease of comment review and consideration, commenters should 
consider referencing a specific section or paragraph of the proposed 
rule and preamble when providing comments. In addition to solicitation 
on specific areas identified in the preamble, the Corps solicits 
comments in general on issues or concerns related to this proposed rule 
which are not specifically identified in the proposal. For these 
comments, the commenter should clearly state the issue or concern, 
provide or reference any supporting documentation (e.g., reports, 
statistical data, and studies), and make a proposal or recommendation 
about how to improve the proposed regulation.

B. Overview of Proposed Rule

    To promote alignment across the Federal government in the 
implementation of the PR&G, Army opted to use the Department of 
Interior's (DOIs) ASPs as a basis for development of the Corps' ASPs. 
DOIs ASPs were released in 2015 and guide the Bureau of Reclamation in 
water resources investments that have similarities to Corps water 
resources investments. Other agencies with approved ASPs such as EPA, 
FEMA, and the Natural Resources Conservation Service make investments 
in water infrastructure that are less similar, although Army did review 
those agencies' ASPs for background and for areas where consistency 
would be appropriate.
    Two key concepts in the PR&G are ``Federal investment'' and 
``public benefit.'' While the P&G applied to the planning and 
evaluation of alternative plans in the formulation and evaluation of 
water and related land resources implementation studies, the PR&G does 
not merely apply to studies, but rather focuses on Federal water 
resources investments, including projects, plans, and programs that the 
Federal government undertakes whose purposes either directly or 
indirectly alter water quantity, quality, ecosystems, or related land 
management. The level of a given Federal investment would be determined 
on a present value basis over the life of the Federal investment and 
the net public benefits of an investment would be assessed and used to 
guide Federal decision making. Federal water resources investments 
should strive to achieve water resources goals and maximize discounted 
net public benefits, with appropriate considerations laid out in the 
PR&G. These concepts are described in further detail in this preamble. 
The proposed rule ASPs provide a framework for the Corps to be used for 
projects, plans, and programs, and in the planning process, in 
implementing the PR&G for water resources investments.

C. Proposed Sections

    Section 234.1 General. This section of the proposed rule describes 
the background on development of the PR&G as well as the authority for 
the development of the Corps' ASPs as described in the Background 
section of this preamble. Nothing in this proposed rule would change 
any other legal requirements to which the Corps is subject (e.g., 
applicable WRDA provisions).
    Section 234.2 Definitions. This section provides proposed 
definitions for relevant terms used in the ASPs. The Army solicits 
input on additional terms that need to be defined or whether the 
definitions proposed require additional clarity.
    Section 234.2(a) Acceptability. This paragraph provides a 
definition for acceptability. This definition is provided in the P&R. 
Acceptability is one of four criteria to be considered when formulating 
an alternative. Acceptability takes into consideration the general 
public's perspectives in the determination of an alternative's 
viability and appropriateness and ensures consistency with existing 
Federal laws, authorities, and public policies.
    Section 234.2(b) Adaptive management. This paragraph provides a 
definition for adaptive management. This definition is provided in the 
P&R and describes the process to address changes, uncertainty, and 
maximization of goals over time. Adaptive management should be 
incorporated into alternatives, where warranted, to address risk and 
uncertainty.
    Section 234.2(c) Completeness. This paragraph provides a definition 
for completeness. This definition is provided in the P&R and describes 
when an alternative is complete enough to realize the planned effects. 
Completeness does not equate to a particular scope or scale to be 
considered complete. Completeness is one of four criteria to be 
considered when formulating an alternative.
    Section 234.2(d) Effectiveness. This paragraph provides a 
definition for effectiveness. This definition is provided in the P&R 
and describes that an alternative is effective when it alleviates the 
specific problems and achieves the specified opportunities. 
Effectiveness is one of four criteria to be considered when formulating 
an alternative.
    Section 234.2(e) Efficiency. This paragraph provides a definition 
for efficiency. This definition is provided in the P&R and describes 
the extent to which a Federal investment is efficient such that an 
alternative may alleviate the specified problems and realizes the 
specific opportunities at the least cost. Efficiency is similar to 
effectiveness with the additional element of cost consideration. The 
P&R also describes how the Federal investment should promote water 
efficiency to the extent possible when considering water use. 
Efficiency is one of the four criteria to be considered when 
formulating an alternative.
    Section 234.2(f) Federal investment. This paragraph provides a 
definition for Federal investment. The ASPs for implementing the PR&G 
are intended to assist in designing and evaluating potential Corps 
investments in water resources. Federal investments as used in PR&G is 
broad and intended to capture a wide array of activities (e.g., 
projects, programs, and plans) that the Federal government directly 
undertakes relating to water resources. This proposed definition is 
specific to the Corps' potential Federal investments. The P&R does not 
define Federal investments. The P&R includes Federal investments that 
affect water quality or water quantity. However, using this language 
may result in confusion. The Corps has three main Civil Works mission 
areas (commercial navigation,

[[Page 12069]]

flood and storm risk reduction, and aquatic ecosystem restoration) and 
generally will not propose a project whose primary purpose is outside 
of these main missions. Many Corps flood risk management projects can 
be said to affect ``water quantity'' indirectly, insofar as they alter 
the timing and way that water flows in a flood. Similarly, many of the 
dams that the Corps has constructed (primarily to reduce flood risks or 
facilitate commercial navigation) also can be said to affect ``water 
quantity'' insofar as they store water to serve ancillary purposes such 
as hydropower, fish and wildlife, recreation, and water supply. With 
this in mind, the Army invites comments on whether the language 
provided in the P&R or other language on this issue should be included 
in the rule definition.
    Section 234.2(g) Federal objective. This paragraph provides a 
definition for Federal objective, which is the conceptual goal of 
Federal investments in water resources. This basic definition is 
provided in the P&R but originates in the WRDA 2007 where it is further 
detailed in Section 2031 and can be found in this proposed regulation 
at section 234.1(b). The Corps would develop investment alternatives 
based on the Federal objective. The Federal objective should result in 
investments which provide various public benefits, including community 
resilience.
    Section 234.2(h) Indigenous Knowledge. This paragraph provides a 
definition for Indigenous Knowledge based on the Guidance for Federal 
Departments and Agencies on Indigenous Knowledge \6\. Indigenous 
Knowledge shall be considered in and used to inform all aspects of the 
Corps' ASPs, where relevant and applicable.
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    \6\ https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf, last accessed January 31, 2024.
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    Section 234.2(i) Nature-based alternatives. This paragraph provides 
a definition for nature-based alternatives. The proposed definition 
aligns with and generally adopts the definition provided in the 
Opportunities to Accelerate Nature-based Solutions: A Roadmap for 
Climate Progress, Thriving Nature, Equity, & Prosperity \7\ issued by 
the Council on Environmental Quality, the Office of Domestic Climate 
Policy, and the Office of Science and Technology Policy. Consistency 
with this document is important to ensure the Corps approach aligns 
with the other Federal water resources agencies involved in nature-
based solutions. Section 1184 of WRDA 2016 provided definitions of 
``natural feature'' and ``nature-based feature'' specific to providing 
risk reduction. This authorization requires the Corps to consider such 
features, as appropriate, in its feasibility studies for flood risk 
management, hurricane and storm damage reduction, and ecosystem 
restoration projects, with the consent of the non-Federal interest. 
Section 1149 of WRDA 2018 modified Section 1184 of WRDA 2016 to include 
additional direction to the Corps on the inclusion of such features in 
flood risk management, hurricane and storm damage reduction, and 
aquatic ecosystem restoration projects. Section 116 of WRDA 2020 
requires the Corps to document the consideration of natural and nature-
based alternatives in the study of flood risk management and hurricane 
and storm damage reduction, including estimates of long-term costs and 
benefits of such alternatives. Under the proposed regulation, a nature-
based alternative is entirely comprised of nature-based features. The 
Corps would include for consideration in the final array of 
alternatives a nature-based alternative, if feasible. Where a nature-
based alternative is not feasible or would not be fully effective, the 
Corps would consider including in the final array an alternative that 
includes nature-based solutions along with other features. The Army 
recognizes that nature-based solutions have an important place for 
consideration in Civil Works projects but may not be appropriate in all 
circumstances as a way to address the subject water resources problems. 
For example, other considerations in the proposed ASPs may result in 
the maximization of public benefits being achieved through an 
alternative method. The Corps would focus on results-driven solutions 
as opposed to dictating one specific method over another for addressing 
the water resources solution at hand, with appropriate consideration of 
the net benefits. In addition, nature-based solutions as components of 
the other alternatives included in the final array and as part of any 
final recommendation as part of a comprehensive solution are 
encouraged.
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    \7\ https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf, last accessed January 31, 2024.
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    Section 234.2(j) Non-Federal interest. This paragraph provides a 
definition for the non-Federal interest. The proposed definition is 
taken from 42 U.S.C. 1962d-5(b). The P&R uses the term ``local 
interest'' and does not define ``non-Federal interest.'' The P&R 
definition of local interest is a non-Federal entity with some level of 
oversight or implementation responsibility associated with a water 
resources investment. Under the P&R, the local interest could be a 
community or a state or local government agency, for example. For Corps 
projects, this generally would be the non-Federal interest. For clarity 
on the Corps Civil Works process and consistency with who can legally 
be a partner on Corps projects and/or be responsible for operation and 
maintenance, as well as to tailor the PR&G to the Corps processes, the 
Army is proposing to use the term ``non-Federal interest'' rather than 
``local interest'' in the proposed regulation. However, the Army 
intends for the non-federal interest to fill the role of the local 
interest as identified in the PR&G. For many of the flood risk 
management projects that the Corps constructs, the non-federal interest 
owns the project and is responsible for its operation and maintenance 
after construction. The non-federal interest generally also is the 
cost-share partner on the project, which includes having a level of 
oversight and implementation responsibility as envisioned in the P&R 
definition of local interest. The Army solicits comments on whether 
equating the non-federal interest with the local interest is an 
appropriate approach for implementation of this provision of the PR&G. 
The P&R provides that an alternative plan, strategy, or action that is 
preferred by a local interest with oversight or implementation 
responsibilities must be included in the final analysis. Similarly, 
this proposed regulation provides that an alternative that is locally 
preferred (i.e., the alternative preferred by the non-federal interest) 
must be included in the final array of alternatives. The Army also 
recognizes that the planning process is shared with the non-Federal 
interest and solicits recommendations on how best the ASPs can 
incorporate and identify the role of the non-Federal interest in the 
process.
    Section 234.2(k) Nonstructural alternative. This paragraph provides 
a definition for nonstructural alternative. A nonstructural alternative 
is entirely comprised of nonstructural approaches. The proposed 
regulation would require the Corps to include for consideration in the 
final array of alternatives a nonstructural solution, if feasible. 
Where a nonstructural solution is not feasible or would not be fully 
effective, the Corps would include for consideration in the final array 
an alternative that is primarily nonstructural, if feasible.
    Section 234.2(l) Nonstructural approaches. This paragraph provides 
a definition for nonstructural approaches. This definition is provided 
in the P&R; however, illustrative examples were

[[Page 12070]]

added for clarity. These examples are not intended to be limiting but 
instead provide a sense of the types of actions which fall under 
nonstructural approaches. The Army solicits comment on whether these 
are appropriate examples and context for the term ``nonstructural'' or 
whether modifications should be made to any final definition or list. 
The nonstructural approaches are intended to apply across the Corps 
missions and activities that are subject to the PR&G. Nonstructural 
approaches are methods and practices employed to alter the use of 
existing infrastructure through human activities as opposed to altering 
physical interaction of water and land. Nonstructural approaches can 
include things like policy modifications or floodproofing of existing 
infrastructure. Alternatively, structural approaches would include 
things such as new construction of water resources infrastructure or 
structural modification to enlarge an existing dam or levee. As 
referenced under the nature-based alternative definition discussion in 
the preamble, various WRDA provisions require the Corps to incorporate 
nonstructural and nature-based solutions in plan formulation. Army 
solicits comment on whether this proposed definition best meets or 
enables the implementation of the PR&G to achieve long-term planning 
goals and objectives of the PR&G, including the avoidance of the unwise 
use of floodplains and the Guiding Principle of healthy and resilient 
ecosystems.
    Section 234.2(m) Public benefits. This paragraph provides a 
definition for public benefits. Public benefits encompass economic, 
environmental, and social benefits, and include those that can 
currently be quantified in monetary terms, as well as those that can be 
quantified or described qualitatively. The PR&G provides for the 
maximization of public benefits relative to costs. This definition is 
provided in the P&R. In comparison, the P&G Federal objective of water 
and related land resources project planning is to contribute to 
national economic development (NED) (or national ecosystem restoration 
(NER) for aquatic ecosystem restoration), consistent with protecting 
the Nation's environment, pursuant to national environmental statutes, 
applicable executive orders, and other Federal planning requirements. 
Contributions to NED under P&G are increases in the net value of the 
national output of goods and services, expressed in monetary units and 
are the direct net benefits that accrue in the planning area and the 
rest of the Nation. Contributions to NED include increases in the net 
value of those goods and services that are marketed, and also of those 
that are not marketed.
    A particular alternative may create changes that result in benefits 
in more than one benefit category; however, the Corps would assign the 
benefits to the most appropriate category and thereby avoid double 
counting. The definition is not intended to be construed as privately 
driven benefits, but rather for the general public reflecting the goals 
of the nation. Typically, public benefits (like public goods) are 
available to all (nonexcludable) and are non-rivalrous. Generally, 
these benefits are intended to accrue to society as a whole and not 
solely for the benefit of certain private persons or entities, although 
private persons or entities may ultimately benefit (e.g., reduction in 
private property damages as a result of a coastal storm risk management 
project). Cost-savings to industry as a whole (e.g., navigation 
industry), for example, benefit society and therefore would be 
accounted for in the analysis. In addition, avoided property damages 
and life safety would also be accounted for as public benefits although 
they benefit individuals as well. Benefits which may be viewed as more 
local in nature are reflected in the ASPs through the use of the 
watershed-based approach that considers the benefits of water resources 
for a wide range of stakeholders within and around the watershed, 
through collaboration and coordination with communities and local 
governments, as well as including the locally preferred alternative 
identified in the final array. The Army solicits comment on how 
benefits to Tribal Nations should be described, such as whether 
benefits to Tribal Nations should be considered as a Federal trust 
responsibility, and whether Tribal Nation benefits should be called out 
separately from the overarching ``public benefits.''
    Section 234.2(n) Regulatory. This paragraph provides a definition 
for regulatory. This definition is provided in the P&R and is a general 
definition of actions which are regulatory in nature promulgated by the 
Federal government. Regulatory can include the promulgation of 
regulations as well as other activities such as permit decisions.
    Section 234.2(o) Resilience. This paragraph provides a definition 
for resilience. This definition is provided in the P&R and can be 
applied to many different areas within the proposed rule such as 
climate resilience, including grid resilience when relevant, ecosystem 
resilience, and water resilience, regarding how climate, ecosystems, 
and water responds to changes. The resilience of a water resource 
solution should be considered in alternatives analysis and tradeoffs 
discussion. The Corps implements four principles related to resilience: 
prepare, absorb, recover, and adapt. There is also a definition 
provided for resilience in Executive Order 13653 (78 FR 66817), which 
the Corps currently uses in its Resilience Initiative.\8\ The 
definition provides that resilience is the ability to anticipate, 
prepare for, and adapt to changing conditions and withstand, respond 
to, and recover rapidly from disruptions. This definition can have 
application to both natural and human-made entities. In addition, there 
is a definition of resilience provided in the National Climate 
Resilience Framework \9\ as well as in M-24-03, Advancing Climate 
Resilience through Climate-Smart Infrastructure Investments and 
Implementation Guidance for the Disaster Resiliency Planning Act.\10\ 
The Army solicits comment on whether the resilience definition provided 
in the Executive Order or the National Climate Resilience Framework or 
M-24-03 should be included in the regulation instead of or in addition 
to the proposed definition. The Army also solicits comment on whether 
additional concepts from these documents should be included in the 
rule, and if so, in what manner related to the use of resilience in the 
rule. The usage of the Corps' definition would be more efficient in 
implementation as it is familiar to the Corps and more directly relates 
to Corps missions; however, the proposed definition would be consistent 
with the PR&G and would apply resilience in a broader sense. There are 
areas discussed in the PR&G related to resilience that go beyond 
climate-related resilience.
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    \8\ https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf, last accessed January 31, 2024.
    \9\ https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf, last accessed 
January 31, 2024.
    \10\ https://www.whitehouse.gov/wp-content/uploads/2023/11/M-24-03-Advancing-Climate-Resilience-through-Climate-Smart-Infrastructure-Investments.pdf, last accessed January 31, 2024.
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    Section 234.2(p) Sustainable. This paragraph provides a definition 
for sustainable. This definition is provided in the P&R and refers to 
the conditions where humans and nature are able to coexist. The P&R 
generally uses the term ``sustainable'' in the context of seeking to 
maximize sustainable economic development, which is one component to 
achieve the Federal objective. Investments in sustainable economic

[[Page 12071]]

development contribute to the Nation's resilience. The P&R also 
provides that alternative solutions should improve the economic well-
being of the Nation through the sustainable use and management of water 
resources ensuring both water supply and water quantity. Sustainability 
would also incorporate the maximization of net benefits while fully 
considering the option of, and value of, preserving resources for 
future uses or non-uses, and fully considering the preferences of 
future generations through appropriate analytical timeframes and 
discount rates.
    Section 234.2(q) Tribal Nation. This paragraph provides a 
definition for Tribal Nation. This definition is consistent with the 
Federal government's definition and identification of a Tribal Nation 
by the Secretary of Interior. This definition is also used and applied 
to other Corps programs, such as the Tribal Partnership Program. The 
Army recognizes that there are other Indigenous populations, Native 
Hawaiian Organizations, and non-federally recognized Tribes which may 
not meet the definition as proposed, and solicits comments on whether 
these populations should be defined separately for purposes of the 
PR&G. Regardless of definitions and legal authorities applied to the 
Civil Works programs, the Corps would ensure full outreach and 
coordination occurs with all Tribal Nations, Indigenous populations, 
Native Hawaiian Organizations, and non-federally recognized Tribes as 
relevant to a particular water resources investment as described in the 
preamble discussion under paragraph 234.6(d). Such outreach and 
coordination would be separate from government-to-government 
consultation requirements. Many of these include communities having 
environmental justice concerns. Environmental justice is one of the 
Guiding Principles of the PR&G and this proposed rule.
    Section 234.2(r) Unwise use of floodplain. This paragraph provides 
a definition for unwise use of floodplain. This definition is provided 
in the P&R and describes conditions which result in a floodplain that 
is no longer self-sustaining. Seeking to avoid the unwise use of 
floodplains is also a component of how to achieve the Federal 
objective. The appropriate floodplain per this definition and 
application under the proposed ASPs is case-specific and should 
consider the scope and scale of the problem and potential benefits when 
determining the geographic boundary. Per the P&R, Federal actions 
should seek to reduce the Nation's vulnerability to floods and storms. 
Unwise uses include those that would significantly increase or shift 
flood risks to other populated areas, or otherwise would result in net 
adverse impacts to human health, safety, welfare, property, natural 
resources, or the natural and beneficial functions of floodplains 
(e.g., natural water storage, water filtration, groundwater 
infiltration, sediment retention). The Army solicits comment on how 
evaluations of self-sustainment may occur in occupied or inhabited 
floodplains.
    Section 234.2(s) Watershed. This paragraph provides a definition 
for watershed. This general definition for watershed is provided in the 
P&R and does not go into detail regarding a specific method or size to 
identify a watershed. Using a watershed approach is a Principle under 
P&R to ensure a more holistic view of the problem and potential 
solutions. The appropriate size of watershed to assess is case-specific 
and should consider the scope and scale of the problem and potential 
benefits when determining the geographic boundary.
    Section 234.3 Exceptions. The proposed ASPs describe a way to 
request an exception to the rules or policies contained in the Corps' 
proposed ASPs. The exception must be submitted in writing and the 
decision-maker is the ASA(CW). As there are already proposed exemptions 
for the application of the PR&G laid out in the proposed rule as well 
as different levels of analysis proposed based on specific thresholds, 
the Army believes that exception requests would be a rare circumstance. 
In addition, since Army intends for PR&G to apply to those non-exempt 
programs and areas specified in the proposed rule, the ASA(CW) is the 
appropriate decision-maker level for approving exceptions.
    Section 234.4 Objectives and applicability.
    Section 234.4(a) Introduction. This paragraph of the proposed rule 
states the goals and objectives of the Corps' ASPs. The proposed rule 
would help ensure consistency and transparency in implementation of the 
PR&G by the Corps. The common framework provided in the ASPs will drive 
that consistency and codifying the ASPs in regulation would ensure 
transparency for the public, as well as an opportunity for review and 
comment prior to finalization through the rulemaking process. The Corps 
has various guidance documents for its water resources development 
project planning process, but the proposed ASPs would ensure all 
projects, plans, and programs subject to the PR&G are using the same 
Guiding Principles and considerations in developing alternatives and 
recommendations. Upon finalization of any rule regarding the Corps' 
ASPs, the Corps would review its existing guidance documents and 
rescind, modify, or develop new guidance as needed to comport with and 
further the objectives of the Corps' ASPs. However, these proposed ASPs 
are intended to stand on their own regarding the overall framework and 
provide the guideposts for the Corps when implementing the PR&G. 
Comments are solicited which may help identify where additional details 
may be warranted in any final rule and preamble and where additional 
specific technical tools or methodologies may be warranted in follow-on 
Corps guidance documents.
    Section 234.4(b) Objectives for Federal water resources 
investments. This paragraph of the proposed rule provides the Federal 
objective for Federal water resources investments as provided in WRDA 
2007 (Pub. L. 110-114 section 2031, 42 U.S.C. 1962-3) and elaborates on 
the definition of Federal objective provided at 234.2(l). The WRDA 2007 
also described more specifically how to accomplish the Federal 
objective. The Federal investments must reflect national priorities, 
encourage economic development, and protect the environment by seeking 
to maximize sustainable economic development; by seeking to avoid the 
unwise use of floodplains; and by protecting and restoring the 
functions of natural systems and mitigating unavoidable impacts. 
Consideration of the Guiding Principles and the application of the 
Requirements in P&R through development of Federal water resources 
investment decisions assists in achieving the Federal objective. The 
WRDA provision did not provide a hierarchy for how to accomplish the 
objective nor does this proposed rule.
    National priorities may include general priorities (e.g., health 
and safety) but can also include more specific priorities that emerge 
and may evolve over time. There are also often multiple national 
priorities at any one time, all of which should be considered and 
reflected in Federal water resources investments to the extent 
relevant. Such priorities can be found in enacted laws and 
Administration priorities and are informed by stakeholder and community 
engagements. The Corps would also fulfill their Tribal trust 
responsibilities under applicable treaties.
    For example, the PR&G calls for sustained economic development 
through building more resilient

[[Page 12072]]

communities. The Federal water resources investments also must protect 
and restore the environment, where applicable, as part of the effort to 
maximize net public benefits to society. This protection and 
restoration could be achieved partly via improvements made to the 
environment through the proposed action, compliance with applicable 
environmental laws and regulations, including/or through the avoidance, 
minimization, and mitigation sequencing applied to impacts to the water 
resources environment, and through assuring the greatest provision of 
ecosystem services achievable that protects public health and welfare.
    One means to accomplish the Federal objective is to seek to 
maximize sustainable economic development. As described in the 
definitions section of the proposed rule at 234.2(y), sustainable 
economic development would provide the conditions where the coexistence 
of humans and nature flourishes. Sustainable economic development would 
improve the national welfare through investments that improve national 
economic efficiency, but not at the expense of the water resources. 
Rather, economic activity would proceed in such a manner that is not 
negatively impacting the sustainability of the water resources 
environment. In some cases, for example, nature-based solutions may be 
both more resilient and maximize net public benefits. The sustainable 
economic development Guiding Principle is further described in Section 
234.6(c)(5) of the proposed rule and preamble.
    In accordance with WRDA 2007, another means to accomplish the 
Federal objective is through seeking to avoid the unwise use of 
floodplains and flood-prone areas. This Guiding Principle is also 
further described in Section 234.6(c)(2) of the proposed rule and 
preamble. The key principle is to avoid actions that result in a 
reduction in public health and safety or result in a floodplain that is 
no longer self-sustaining. However, it is important to recognize that 
many Corps Civil Works water resources development projects are out of 
necessity located in floodplains and are not considered an unwise use 
of floodplains simply due to their location. The Corps will strive to 
sustain the floodplains natural and beneficial functions to the maximum 
extent practicable in light of the project's purpose. For example, 
public health and safety are considered in the evaluation and 
formulation development of a proposed Corps water resources development 
project, but this sometimes may result in a project that does not fully 
contribute to the sustainment of floodplain natural and beneficial 
functions.
    The last means to accomplish the Federal objective provides that 
the Corps shall protect and restore the functions of natural systems 
and mitigate any unavoidable damage to natural systems. This concept is 
embedded in the Corps' compliance with environmental laws and 
regulations, such as the Clean Water Act and NEPA. In general, the 
Corps aims to improve environmental conditions when possible, and when 
not possible, sequences consideration of mitigation related to 
potential damages as avoidance, minimization, and compensatory 
mitigation. Certain Corps water resources development projects have the 
goal to restore and protect aquatic ecosystems as their primary 
purpose, such as aquatic ecosystem restoration projects under Section 
206 of WRDA 1996 (Pub. L. 104-303), as amended.
    Section 234.4(c) Net public benefits. This paragraph of the 
proposed rule describes the net public benefits to society, which are 
to be maximized. Net public benefits are to be used to justify water 
resources development projects per WRDA 2007. Per the P&R, public 
benefits encompass three goals--economic, environmental, and social. In 
addition, public benefits include those that can be described in 
monetary terms, and those that can be quantified or described using 
other terms. The IG provides as a key aspect stating that the 
environmental, economic, and social impacts are interrelated, and there 
is no hierarchy among their goals in a PR&G analysis. In addition, the 
P&R provides that solutions to water resource needs may produce varying 
degrees of effects relative to environmental, economic, and social 
goals and that no hierarchal relationship exists among these three 
goals. As a result, tradeoffs among potential solutions will need to be 
assessed and communicated during the decision making process. All key 
benefits and effects relevant to the investment decision would be 
displayed and given consideration. For a particular water resources 
development project, the Corps study would take into consideration the 
given study purpose and specific water resource challenge to 
appropriately identify and assess benefits and effects across the 
categories which will naturally vary across Corps studies.
    Federal investments in water resources have been mostly based on 
economic performance assessments under the P&G, which largely focus on 
investments that will improve national economic efficiency. This focus 
on national economic gains sometimes resulted in an unduly narrow 
benefit-cost comparison of the monetized and quantified effects. The 
P&G provided that contributions to NED would be expressed in monetary 
units. Although the benefits in the other three accounts were included 
in the overall analysis and available to decision-makers under the P&G, 
they often, with some exceptions (e.g., aquatic ecosystem restoration 
studies and dam safety studies), were not the key drivers in the final 
decision-making as compared to the monetized and quantified national 
economic efficiency effects.
    The PR&G emphasizes that relevant environmental, social and 
economic effects should all be considered and that both quantified and 
unquantified information will form the basis for evaluating and 
comparing potential Federal investments in water resources to the 
Federal objective. The ASPs make clear that the Corps will use 
monetized and quantified data to the extent practicable, but that 
unquantified information will be fully considered as well. This more 
integrated approach would allow decision-makers to view a more complete 
range of effects of alternative actions and lead to more socially 
beneficial investments. See preamble sections 234.9 and 10 for further 
discussion on the use of unquantified data and decision-making.
    A separate distributional analysis can be utilized to examine 
regional economic benefits. The P&G included regional economic 
development as one of four ``accounts'' for facilitating evaluation and 
display of effects of alternative plans. As stated in the Background 
section, the RED account registered changes in the distribution of 
economic activity that result from each alternative plan. These 
economic effects amount to a transfer of resources from one part of the 
Nation to another (either from one region of the country to another, or 
within a region). They accrue in a local area or region but are offset 
by equivalent losses elsewhere in the country.
    The PR&G implementation would include other potentially important 
distributional effects, including environmental and social effects 
considerations at the regional level. The non-federal interest and 
local organizations and communities can provide valuable information to 
inform these assessments for a proposed water resources investment, 
providing that local knowledge and valuation as the Corps seeks to 
identify more of a community-driven solution under the

[[Page 12073]]

implementation of the ASPs than what is implemented under the current 
P&G policy.
    Having a more holistic view and recognition that water resources 
development projects can provide a multitude of benefits allows for the 
whole story to be told regarding alternatives being considered for 
Federal water resources investments. For example, this more holistic 
view will enable more informed decision-making for Federal investments 
to truly identify in the final array of alternatives what will best 
enable resilience for the Tribal Nation, when applicable, or the 
community, the region, and the Nation. Public benefits also include 
consideration of public assets that contribute to community resilience, 
such as by reducing the flood risk to property, housing, and other 
existing infrastructure, etc.
    Some benefits may be difficult to bucket into a category of 
economic, environmental, or social. Analysts are encouraged to be as 
specific as possible, and when categories cannot easily be assigned, 
and to describe the relevance when evaluating alternatives. Double 
counting should be avoided. If benefits appear to accrue to more than 
one category, development of logic models, exploration with experts or 
other methods can help specify benefits further and parse effects into 
different categories, representing the full set of effects and avoiding 
double counting. In addition, when economic, environmental, and social 
goals compete, the Corps would describe such instances and include the 
considerations in the tradeoff analysis (see 234.10(b)). The important 
component is to consider complementary and consistent formulation of 
the various benefits. Army solicits comment on whether net public 
benefits should be described without the additional step to categorize 
them into economic, environmental, and social in order to display all 
benefits in their entirety without the risk of double-counting or 
having to identify a specific benefit category when there may be 
overlap.
    Army is also soliciting comments on whether it should be 
acknowledged that Tribal benefits are part of the Tribal trust 
responsibility in implementing the PR&G and whether Tribal benefits 
should be called out separately from ``public benefits''. In addition, 
in many circumstances, Indigenous Knowledge can be used to inform the 
benefits that may accrue as a result of any given alternative providing 
more transparency on the entirety of benefits provided to better inform 
decision making.
    Some benefits are also difficult to monetize or quantify, for 
example, non-use values of wildlife loss (e.g., existence or bequest 
values), or some culturally valued experiences (e.g., spiritual 
connection to nature and option to lead a subsistence way of life). In 
this particular area, we solicit comments as to approaches and tools 
that may be employed to best enable the Corps to have consistent and 
transparent implementation, including through the use of any final 
guidance provided by the Office of Management and Budget on ecosystem 
services in response to its August 2, 2023 proposal (88 FR 50912).
    The quantification of benefits relates to several evolving fields 
and new methods may develop over time. The PR&G and the Corps' proposed 
ASPs emphasize that benefits should be monetized when possible, 
quantified when they cannot be monetized, and described when neither 
monetization nor quantification is possible with available 
methodologies and data. Where qualitative descriptions and analysis are 
used, they should be of sufficient detail and quality to enable the 
decision-maker to make informed decisions. In addition, the Army 
solicits comment on whether life safety benefits should be specifically 
identified, and if so, under which of the three ASPs benefits category, 
social, environmental, or economic category (see Section 234.9(c) for 
additional information on these categories).
    Under the ASPs, consideration of the range of benefits (economic, 
environmental, and social benefits) is the integral component of the 
planning process. The process should look beyond simply starting with 
the National Economic Development/National Ecosystem Restoration plan 
and then only filling in the other requirements of the ASPs when those 
benefits are needed for project justification.
    Development of a comprehensive plan to address the water resources 
challenge must begin in the earliest phases of the planning process and 
would continue throughout the process, as detailed through the Federal 
objective, Guiding Principles, and planning process framework provided 
in this proposed rule. There may also be instances where the Corps' 
existing tools and resources in calculating the four P&G accounts, 
national economic development, regional economic development, 
environmental quality, and other social effects, may still be relevant 
in implementing the PR&G, where appropriate.
    Section 234.4(d) Applicability. This proposed rule paragraph 
describes the projects and programs that must use the PR&G framework 
and outlines those projects and programs that are excluded from 
performing a PR&G analysis. Essentially the PR&G will apply to all 
Corps projects and programs that are not identified as excluded in 
234.4(d)(2). Per the PR&G, it was never intended that PR&G apply to all 
projects and programs for water resources agencies and the list of 
exclusions is consistent with the PR&G exclusions and applicability 
discussion. The Army invites comment on additional projects and 
programs that should be covered under the PR&G or, conversely, 
additional projects and programs to which the PR&G should not apply. 
The proposed excluded projects and programs either fall below the 
thresholds identified in Table 1 of the proposed rule, or are 
considered to be small and routine such that it would not be 
appropriate to have the PR&G apply. This does not mean that those 
projects or programs do not have to follow the relevant laws, 
regulations, and general planning processes simply because they are 
excluded from PR&G. Even though such projects or programs would be 
excluded from the full application of the ASPs and the PR&G, those 
projects and programs should still strive to meet the intent of the 
ASPs by applying similar concepts where relevant. With respect to a 
project or program that meets a NEPA categorical exclusion, such 
exclusion does not automatically trigger an exclusion for application 
of the PR&G. However, many of these projects and programs may meet the 
terms of an exclusion under both NEPA and the proposed ASPs.
    Also, the proposed ASPs would also apply to non-Federal interests 
who undertake feasibility studies, such as under Section 203 of WRDA 
1986, as amended. The WRDA provisions, as amended, provide that the 
study, and the process under which the study was developed and 
conducted by a non-Federal interest would be reviewed by the Secretary 
to determine whether it complies with Federal laws and regulations 
applicable to feasibility studies of water resources development 
projects. These would include this proposed rule.
    In proposed paragraph 234.4(d)(2), some actions that are excluded 
under the PR&G for the Corps' proposed ASPs include the Corps' 
Regulatory Program as well as Section 408 actions as there is no 
proposed Federal water resources investment being considered. As 
provided in section 14 of the River and Harbors Appropriations Act of 
1899, as

[[Page 12074]]

amended (33 U.S.C. 408), the Section 408 process serves to ensure that 
an action proposed by another entity (a party other than the Corps) for 
the temporary or permanent alteration or use of a civil works project 
will not be injurious to the public interest and will not impair the 
usefulness of that Corps project. Regulatory actions are listed in the 
Interagency Guidelines as excluded activities. However, this exclusion 
does not apply to regulatory compliance actions related to activities 
that are subject to the PR&G, such as compliance with the Endangered 
Species Act. Real estate actions of the Corps, such as easement 
decisions on existing Corps lands and land disposal actions, are also 
proposed to be excluded as these also do not result in a proposed 
Federal water resources investment. Technical services programs, such 
as Planning Assistance to States and Flood Plain Management Services, 
are also proposed to be excluded as these programs support state and 
local water resources planning efforts, rather than a proposed Federal 
water resources investment. Similarly, these actions were excluded 
under P&G as they do not develop Federal water resources plannin