Environmental Requirements Addressed During Corps Civil Works Project Planning: Background and Issues for Congress
Congressional research reportSep 5, 2013
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Environmental Requirements Addressed
During Corps Civil Works Project Planning:
Background and Issues for Congress
-name redactedAnalyst in Environmental Policy
September 5, 2013
Congressional Research Service
7-....
www.crs.gov
R43209
Environmental Requirements Addressed During Corps Civil Works Project Planning
Summary
Under its civil works mission, the U.S. Army Corps of Engineers (the Corps) undertakes water
resource projects. The majority of Corps civil works projects involve commercial navigation,
flood risk management, and ecosystem restoration.
Before Congress will authorize the construction of or appropriate funds for most Corps civil
works projects, the agency must prepare various studies, reports, and evaluations of project
benefits and detriments, including adverse environmental impacts. Those impacts, in turn, may
obligate the Corps to demonstrate compliance with certain environmental requirements.
Environmental Requirements Addressed During Planning
Some interested stakeholders have questioned the degree to which environmental requirements
hamper project delivery, and debate what changes could be made to accelerate delivery. In
particular, some have questioned whether compliance with federal environmental laws and
regulations delays the completion of reports that Congress uses to inform legislation authorizing
project construction such as Water Resources Development Acts (WRDAs).
The planning process is used to develop a recommended water resource project that Congress
may authorize. Among other requirements, planning must include an evaluation of project
impacts on the environment and applicable federal requirements that arise from those impacts.
Depending on the project, a wide array of environmental requirements may apply. There are two
types of environmental requirements that may affect a water resource project: those that obligate
the Corps to evaluate certain issues during planning, and those intended to protect human health
or minimize harm to a protected resource from project-specific impacts. Integrating the
evaluation of environmental impacts into project planning is intended, in part, to minimize the
potential for unanticipated impacts from the project and mitigate the severity of unavoidable
adverse impacts.
Generally, the Corps identifies and considers environmental impacts, including any applicable
requirements arising from federal environmental laws such as the Clean Water Act, within the
framework of documenting compliance with the National Environmental Policy Act (NEPA).
Compliance with NEPA and other “environmental” laws may obligate the Corps to consult with
outside agencies to determine the degree to which a protected resource (e.g., historic site,
endangered species habitat, wetlands) may be affected; to develop measures to mitigate or
minimize adverse impacts; and/or to identify required approvals or permits.
Factors That Cause Delay
The time that it takes the Corps to move from one phase of project development to another
depends on a complex array of factors. When comparing individual Corps projects to each other,
larger, more complex, and costly projects generally take longer. When looking at all civil works
projects, Congress’s role in authorizing required studies and project construction, and in
appropriating funds necessary for the required studies and construction, often significantly affects
project delivery timing.
Given the range of environmental issues and impacts that Congress has statutorily obligated the
Corps to evaluate, the body of requirements that may be deemed environmental that apply to
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Corps projects can represent a significant element of project development. What is unclear is
whether or which specific environmental requirements routinely delay project delivery, in
general, or completion of necessary reports to Congress, in particular.
Scope of This Report
This report provides information about the civil works project development process, with a focus
on the planning phase of development and challenges associated with determining the extent to
which project delivery is affected by environmental requirements. To provide some context, the
report identifies selected issues that have arisen in the past 50 years that resulted in Congress
enacting various environmental requirements that affect the Corps’ project planning process and
that are intended to minimize adverse impacts of Corps projects. It also provides an overview of
key federal requirements that generally must be addressed before the Corps’ Chief of Engineers
will issue a report (i.e., a Chief’s Report). The transmission of that report to Congress by the
Assistant Secretary of the Army for Civil Works is typically the final step in the planning process
and is intended to inform congressional authorization of project construction.
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 2
The Evolution of Environmental Requirements ........................................................................ 4
Changes in Water Resources Development Acts ....................................................................... 6
Overview of the Current Planning Process for Civil Works Projects ........................................ 7
Environmental Evaluation and Compliance Requirements ........................................................... 10
Corps-Specific Requirements Addressed During Planning ..................................................... 11
Impact-Specific Environmental Requirements ........................................................................ 12
Integrating Environmental Requirements into the Project Development Process ......................... 15
Detailed Actions During the 21 Steps of Project Development............................................... 16
Factors Identified as Causing Delay .............................................................................................. 18
Figures
Figure 1. 21 Steps of Civil Works Project Development ................................................................. 9
Tables
Table 1. Selected Federal Laws That Require Outside Agency Review ........................................ 14
Contacts
Author Contact Information........................................................................................................... 20
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Introduction
U.S. “water resources” include streams, rivers, wetlands, estuaries, lakes, and coasts. Those
resources support billions of dollars in commerce, provide drinking water, supply habitat for fish
and wildlife, and provide recreational opportunities. The U.S. Army Corps of Engineers (the
Corps) is one of several federal agencies that undertake water resource projects.1 The majority of
Corps civil works projects involve commercial navigation, flood risk management, and
ecosystem restoration.
Congress generally authorizes Corps activities and provides policy direction in Water Resources
Development Acts (WRDAs). Many studies of civil works projects prepared by the Corps are
prepared in response to a project-specific authorization from Congress to study a water resources
problem.2 Generally, the outcome of the Corps’ study process is a Corps Chief of Engineers report
to Congress (a Chief’s Report) that supports the recommendation for Congress to authorize
project construction.
Project development involves multiple stages, from study initiation to planning and design and
ultimately to construction and operation. Years or even decades may pass from the time the Corps
is authorized to study a water resources-related problem and the Corps constructs a project to
address that problem. In recent decades, few projects authorized for study have led to constructed
projects. Of the projects that do proceed, various factors affect the time it takes to move from
project planning to the completion of construction. Generally, the most significant factors in some
way relate to the availability of federal funding and the time it takes to obtain necessary
congressional authorizations.
Recently, to expedite project development, congressional attention has focused on activities that
must be completed before a Chief’s Report can be submitted to Congress recommending project
construction.3 These activities generally comprise the planning stage of project development.
Pursuant to various statutory requirements, during project planning, the Corps is obligated to
complete a potentially complex array of studies, reports, and evaluations.
In an effort to expedite that project delivery, some groups have focused particular attention on the
time it takes the Corps to comply with federal environmental requirements that must be addressed
during planning. Given the congressional interest in this topic, this report assesses certain
elements of the project planning process in an effort to identify whether or the degree to which
meeting environmental requirements is a significant cause of delay in project delivery. To do so,
the report provides background information on the potentially wide array of environmental
requirements that may apply to a given civil works project (including why Congress established
such requirements), how the Corps integrates compliance with those requirements into the project
planning process, and how required elements of the planning process may affect project delivery.
1
For example, the Bureau of Reclamation also undertakes water resource projects.
This includes projects that require the preparation of a feasibility report, pursuant to 33 U.S.C. §2282, but does not
include projects referred to as “continuing authorities” projects, or CAPs.
3
See the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment’s hearing “A Review of the United States Army Corps of Engineer’s Reports,” June 5, 2013,
http://transportation.house.gov/hearing/review-united-states-army-corps-engineers-chief%E2%80%99s-reports.
2
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Environmental Requirements Addressed During Corps Civil Works Project Planning
To provide necessary background, this report identifies selected issues that have arisen in the past
50 years that resulted in Congress enacting numerous environmental requirements that (1)
directly affect the Corps’ project planning process and (2) are intended to minimize adverse
project-specific impacts. It also provides an overview of the Corps’ environmental evaluation and
compliance requirements, including how those requirements are integrated into the project
planning process. More specifically, the report provides an overview of the federal requirements
that obligate the Corps to evaluate the impacts of a given civil works project and the compliance
requirements that generally must be addressed before the Corps will submit a Chief’s Report to
Congress.
The Corps project development process is complex. By focusing on environmental requirements
that must be addressed during planning, this report does not identify every element of project
development that may affect project delivery. More specifically, it does not provide detail
regarding other factors that have been identified as particularly relevant to the timing of project
delivery—federal funding availability and the timing of necessary congressional approvals. As
they affect the project planning process, selected issues associated with congressional funding
and approvals may be discussed, but are generally beyond the scope of this report. For
information about those issues, see CRS Report R41243, Army Corps of Engineers Water
Resource Projects: Authorization and Appropriations, and CRS Report R41961, Army Corps
Fiscal Challenges: Frequently Asked Questions, by (name redacted) and (name redacted).
Background
The majority of civil works projects undertaken by the Corps fall within its navigation, flood risk
management, and ecosystem restoration and environmental protection missions. Historically,
navigation and flood risk projects involved a potentially wide range of activities such as the
construction of levees, floodgates, or dams; channel deepening (i.e., dredging) or widening; or
changing floodplain uses. Some of those projects resulted in adverse impacts such as
unanticipated flood damage after alterations to wetlands or floodplains, the destruction of aquatic
plant or animal habitat, or impaired or altered water quality after dredging or channelizing
waterways or building locks and dams.
The Corps’ civil works mission was expanded to include ecosystem restoration projects, in part,
to authorize the agency to address adverse effects from past civil works projects. Addressing
those impacts involves actions such as restoring natural channel conditions, modifying
obstructions to fish passage, or removing levees to restore wetland hydrology.
Many of the environmental requirements that apply to Corps civil works projects today were put
in place at the direction of Congress to ensure that project planning reduces the potential for
unanticipated adverse impacts and/or identifies measures to minimize or mitigate unavoidable
impacts. In reviewing the range of federal4 environmental requirements potentially applicable to
civil works projects, the requirements may fall into the one of the following categories:
4
State or tribal requirements generally do not apply to civil works projects. However, states or tribes may be authorized
to implement certain federal environmental laws. For example, depending on a project’s impacts, the Corps may be
required to comply with state water quality requirements implemented by an authorized state pursuant to the Clean
Water Act.
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Environmental Requirements Addressed During Corps Civil Works Project Planning
•
Requirements to address certain environmental aspects of a proposed
project during planning. These include requirements, established by Congress,
that apply explicitly to federal investment in water resources development. For
example, the Corps is obligated to conduct specific studies, reports, and
evaluations to ensure that the environmental impacts of a project are identified
and considered; evaluate a project’s economic and public safety benefits
compared to its adverse environmental impacts; and identify opportunities to
protect, preserve, and/or enhance the quality of the environment.
•
Requirements intended to protect human health or minimize harm to a
protected resource. These include requirements that arise from federal laws,
regulations, executive orders, or Corps policy that may apply as a result of
project-specific impacts. Compliance requirements will be identified during
planning and will generally depend on the degree to which project impacts
adversely affect air or water quality, or natural or cultural resources specifically
protected by Congress (e.g., historic sites, Native American graves, endangered
species or their habitat). They may also include any requirements that direct the
Corps to enhance the quality of the environment.
Both sets of requirements are largely implemented by the Corps, but may require the Corps to
consult with or obtain some level of review by an outside federal agency or a state or tribal
agency authorized to implement a specific federal law (see Table 1 in the section “ImpactSpecific Environmental Requirements”).
As required by Congress, the Corps cannot recommend a project to Congress for construction
authorization until it has evaluated and can describe “economic, environmental, and social
benefits and detriments” of a recommended plan and possible alternative plans.5 A key element of
its evaluation of environmental detriments and benefits involves identifying a project’s impacts
and environmental compliance requirements associated with those impacts.
When there is debate over the degree to which environmental requirements affect project
delivery, that debate often centers around the time it takes the Corps to demonstrate compliance
with specific requirements. Most recently, that debate has centered around the time that it takes
the Corps to complete some level of coordination with or obtain necessary approvals from other
federal agencies (e.g., the Department of the Interior’s U.S. Fish and Wildlife Service). The
process required to obtain necessary federal reviews of civil works projects may be highly
complex, among other reasons, in order to ensure compliance with protections established by
Congress. As a result, they may require a high degree of resources agency involvement (e.g., in
developing ecosystem restoration projects).
To understand why a potentially complex array of environmental requirements may apply to
water resource projects, it is useful to understand the social and environmental concerns that led
Congress to enact the various laws that may apply to both the project development process and
projects themselves.
5
33 U.S.C. §2282(a)(2).
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The Evolution of Environmental Requirements
How the Corps is currently obligated to evaluate the environmental impacts of a project, as well
as document and demonstrate compliance with any requirements that may apply as a result of
those impacts, has evolved over many years. Several key requirements that require the Corps to
plan and implement projects as it does currently were originally enacted in the 1960s and 1970s.
It was during that time that national priorities and perspectives on the federal investment in water
resources development were changing; at the time, public attention was turning to the impacts
that human activities were having on the human and natural environment—that is, adverse
impacts on air and water quality and on cultural and natural resources such as historic sites, plant
and animal species, and/or their habitats.
Beginning in the 1960s, Congress began to respond to that increased public awareness and
concern by enacting various laws that affect project planning, development, approval, and
funding, as well as laws intended to protect human health and the environment. Most
requirements that currently apply to water resource project development that may be deemed
“environmental” represent past efforts by Congress to minimize the potential for unforeseen
adverse impacts and/or to mitigate or minimize any unavoidable adverse impacts.
During the 1960s, Congress also turned its attention to the effects that federally funded projects
were having on the environment—including Corps water resource projects. Generally, until the
mid-1960s, analysis of water resource projects focused on the potential economic benefits and
costs. With increased attention to adverse impacts of civil works projects, including the costs
associated with remedying those impacts (see text box below), Congress enacted various laws
that broadened Corps planning requirements to include an evaluation of project impacts to
environmental quality.
Of particular relevance to the Corps’ planning process today was the enactment of the following:
•
The Water Resources Planning Act of 1965 (P.L. 89-80)—created the Water
Resources Council (WRC, now defunct due to lack of funding) and established
“Water Resources Planning” requirements (42 U.S.C. §1962), which created a
coordinated planning process related to the conservation, development, and use
of water resources. The law also required the establishment of principles,
standards, and procedures to be used for the formulation and evaluation of water
and related land resources projects. A WRC Task Force subsequently specified
that water resources agencies should identify impacts in four areas—national
economic development, environmental quality, regional economic development,
and social well-being.
•
The National Environmental Policy Act of 1969 (NEPA)—requires all federal
agencies to consider the environmental impacts of an action and to give the
public a meaningful opportunity to learn about and comment on the proposed
project before a final decision is made to proceed with that action. The NEPA
compliance process forms the framework used by the Corps to identify any
project impacts to natural or cultural resources or to air or water quality,
including impacts that may require the Corps to comply with other federal
environmental requirements. Depending on the resource affected, the Corps is
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Environmental Requirements Addressed During Corps Civil Works Project Planning
required to coordinate its NEPA analysis in consultation with agencies with
jurisdiction over any affected resources or expertise necessary to assess the
significance of the impacts.6
By the late 1960s, construction
of major waterworks had
declined. Changing national
priorities and local needs,
increasing construction costs,
and completed projects at most
prime locations decreased the
attractiveness of major water
projects.7
At the same time, as a reflection
of changing national priorities,
congressional concern over the
impacts that human activities
were having on the quality of the
human and natural environment
was further demonstrated in
wide-ranging laws enacted in the
late 1960s and into the 1970s.
Included among them were the
National Historic Preservation
Act (1966), the Endangered
Species Act (1973), and the
Clean Water Act (1972). By the
mid-1970s, the Corps began to
identify and coordinate its
compliance obligations under
NEPA and the Water Resources
Planning Act by integrating its
assessment of environmental
impacts into the project planning
process. That included
identifying any applicable nonNEPA environmental
requirements and documenting
necessary compliance
requirements during project
planning.
Impacts and Costs of the
Central and Southern Florida (C&SF) Project
In the early 1900s, the principal impediment to development in south
Florida was flooding. To realize the economic potential of the state’s
natural resources, major drainage projects were initiated by the state of
Florida and later in partnership with the Corps. That partnership worked
to control conditions hampering economic development.
Authorized by Congress in 1948, activities associated with the Central
and Southern Florida (C&SF) Project were intended to control flooding,
provide water for municipal, industrial, and agricultural uses, prevent
saltwater intrusion, create a water supply for Everglades National Park,
and protect fish and wildlife resources. The primary system includes
about 1,000 miles each of levees and canals, 150 water control structures,
and 16 major pump stations. To create that system, the Kissimmee River
was channelized; Lake Okeechobee was diked to prevent uncontrolled
overflows; part of the Everglades was drained and groundwater levels
were managed to reduce flood damages to agricultural production; a
drainage system was constructed in the lower East Coast to allow for
urban, suburban, and agricultural development; and central portions of
the Everglades were diked to store water for human needs and to make
deliveries to Everglades National Park.
The emphasis on economic goals focused project design on development
of the region with little understanding of or concern for the
consequences to the Everglades ecosystem. As a result of CS&F projects,
nearly half of the original Everglades ecosystem was converted to
agricultural uses. The overall impact of the construction and operation
was a substantial reduction in habitat options for wildlife, a network of
canals and levees that has accelerated the spread of polluted water and
exotic species and significantly reduced the water storage capacity within
the remaining natural system, and an unnatural mosaic of impounded and
overdrained marshes throughout the natural system.
In an effort to address these impacts and restore the south Florida
ecosystem, Congress authorized the Comprehensive Everglades
Restoration Plan (CERP, also known as the C&SF Restudy). The CERP
provides a guide to restore, protect, and preserve the water resources of
central and southern Florida, including the Everglades. Ultimately,
activities related to the plan will cover 16 counties over an 18,000square-mile area, and include more than 60 project elements.
Construction is expected to take more than 30 years and $11.9 billion.
Source: Project history taken from the Comprehensive Everglades
Restoration Plan, available at http://www.evergladesplan.org/.
6
For more information, see CRS Report RL33152, The National Environmental Policy Act (NEPA): Background and
Implementation, by (name redacted).
7
A discussion of the evolution of the Corps’ civil works mission is included in CRS Report R41243, Army Corps of
Engineers Water Resource Projects: Authorization and Appropriations, by (name redacted) and (name redacted).
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Changes in Water Resources Development Acts
Since 1974, congressional authorization to study or construct civil works projects has been
provided to the Corps largely through Water Resources Development Acts (WRDAs). Early
WRDAs were largely project authorization acts, but since the mid-1980s, WRDAs have also
included significant directives to the Corps with regard to the management of environmental
issues or impacts.8 The following are selected9 examples:
•
WRDA 1986 (P.L. 99-662). Directed the Corps to improve fish habitat affected
by water resources facilities, authorized changes in justification for beach
nourishment projects, and authorized the Corps to determine the need for and
make modifications to existing structures to improve the quality of the
environment or to address project operations that degraded environmental
quality.
•
WRDA 1990 (P.L. 101-640). Directed the Secretary of the Army to include
environmental protection as a primary Corps mission.
•
WRDA 1992 (P.L. 102-580). Authorized the Corps to use the “spoils” from
dredging in implementing projects for protecting, restoring, and creating aquatic
and ecologically related habitats, including wetlands.
•
WRDA 1996 (P.L. 104-303). Authorized the Secretary of the Army to carry out
aquatic ecosystem restoration and protection projects and to add environmental
protection and restoration as another project purpose.
•
WRDA 2000 (P.L. 106-541). Approved the Florida Everglades restoration
program, the agency’s first multiyear, multibillion-dollar effort of this type.
These legislative changes gave the Corps environmental responsibility beyond traditional water
resources development. More recently, WRDA 2007 (P.L. 110-114) included “Project
Streamlining” requirements that directed the Secretary of the Army to develop and implement a
coordinated review process for water resource project development.
WRDA 2007 also required the Secretary of the Army to revise the Principles and Guidelines
(P&G) for water resource implementation studies.10 Until recently, the Corps used the P&G to
guide its development of processes and procedures for formulating, evaluating, and implementing
water resources development projects.11 In March 2013, the Administration released Principles
8
Prior to WRDAs, Congress typically authorized Corps projects in successive Rivers and Harbor and Flood Control
Acts.
9
Primarily amendments identified in the Analytical Methods and Approaches for Water Resources Project Planning,
prepared by the Panel on Methods and Techniques of Project Analysis, Committee to Assess the U.S. Army Corps of
Engineers Methods of Analysis and Peer Review for Water Resources Project Planning, National Research Council,
2004, National Academies Press, p. 21.
10
See Section 2031(b) in WRDA 2007, “Water Resources Principles and Guidelines.” Under Section 2031(b)(3), the
Corps was directed to consult with the Secretaries of the Interior, Agriculture, Commerce, Housing and Urban
Development, Transportation, Energy, and Homeland Security, the Administrator of the Environmental Protection
Agency (EPA), the National Academy of Sciences, and the Council on Environmental Quality (CEQ), and to solicit
and consider public and expert comments.
11
The P&G were originally prepared pursuant to Section 103 of the Water Resources Planning Act (42 U.S.C. 1962a2). The 1983 P&G issued by the WRC are reflected in two documents, Economic and Environmental Principles for
Water and Related Land Resources Implementation Studies and the Economic and Environmental Guidelines for Water
(continued...)
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Environmental Requirements Addressed During Corps Civil Works Project Planning
and Requirements for Federal Investments in Water Resources (Principles & Requirements, or
P&R), as well as draft Interagency Guidelines for implementing the P&R.12
Section 2031 of WRDA 2007 also amended the national Water Resources Planning policy,13
included originally in the Water Resources Planning Act, to specify that all water resource
projects should reflect national priorities, encourage economic development, and protect the
environment by
•
seeking to maximize sustainable economic development;
•
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
•
protecting and restoring the functions of natural systems and mitigating any
unavoidable damage to natural systems.
This policy highlights the evolution of water resource project development. Once focused largely
on project construction for “flood control” or “economic development,” congressionally derived
policy now includes the consideration of measures that may be needed to protect the environment
and/or mitigate unavoidable damage to the quality of the environment, not simply compliance
with applicable requirements intended to protect the environment.
Overview of the Current Planning Process for Civil Works Projects
The water resources development process that evolved since the 1960s reflects changing needs
and concerns related to environmental impacts, as those needs and concerns were identified by
Congress. Most of those changes added requirements or steps to the civil works project
development process. The resulting process is complex.
The Corps’ civil works program is led by a civilian Assistant Secretary of the Army for Civil
Works (ASA(CW)). A military Chief of Engineers oversees the Corps’ civil and military
operations and reports on civil works matters to the ASA(CW). A Director of Civil Works reports
to the Chief of Engineers. The Corps’ civil works responsibilities are organized under eight Major
Subordinate Commands (MSCs, also referred to as Divisions), further divided into 38 Districts.
Figure 1 outlines the steps of the project development process. It typically begins when a local,
nonfederal interest identifies a water resources problem that it wants the Corps to address. If the
Corps determines it appropriate, a request is made to Congress to authorize the Corps to study the
issue. Project-specific study authority is typically provided in a resolution by an authorizing
committee or a WRDA.14 While a study authorization may allow the Corps to receive federal
funding to initiate a study, those funds must be appropriated separately for the study to proceed.
(...continued)
and Related Land Resources Implementation Studies.
12
See the CEQ web page, “Updated Principles and Guidelines for Water and Land Related Resources Implementation
Studies,” at http://www.whitehouse.gov/administration/eop/ceq/initiatives/PandG.
13
See WRDA 2007 Section 2031 amendments to 42 U.S.C. §1962-3(a).
14
The congressional authorizing committees are the House Committee on Transportation and Infrastructure and the
Senate Committee on Environment and Public Works.
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Not all authorized studies receive appropriations, or funds may be appropriated years after the
study is authorized.
Once the initial study is approved and federal funds are made available, the Corps planning
process begins with the preparation of the following:
•
A reconnaissance study—an investigation into the water resources problem and
assessment of the federal government’s interest in the project (i.e., whether it
falls within one of the Corps’ missions), as well as the interest and ability of the
nonfederal sponsor(s) to participate in the project. If nonfederal support/funding
is forthcoming and the Corps recommends proceeding, a feasibility study can
begin once federal funding for the feasibility study is made available.
•
A feasibility study and report—studies, reports, and evaluations necessary to
formulate and recommend solutions to the water resources problem identified in
the reconnaissance study. A feasibility study that results in the preparation of a
feasibility report is required to include a description of the economic,
environmental, and social benefits and detriments of the recommended and
alternative plans considered by the Corps.15 To provide that information, among
other activities, the District in which the project is proposed formulates
alternative plans, investigates engineering feasibility, conducts cost-benefit
analyses, and evaluates potential environmental impacts of project alternatives
and compliance requirements associated with those impacts.
It is generally during the feasibility study process that actions necessary to comply with NEPA are
completed, as well as evaluations necessary to demonstrate compliance with any other applicable
environmental requirements (see discussion in the section below).
After all supporting evaluations, studies, and reports are completed, a feasibility report and
associated documents are subject to review and approval at the Headquarters level. Once those
reviews are complete, the Chief of Engineers uses these documents to produce a Chief’s Report,
which, if the Corps chooses to move forward with the project, will support its recommendation to
Congress to authorize construction. The Chief’s Report, along with all the supporting information
about the project, is then submitted to the ASA(CW) and the Office of Management and Budget
(OMB) for policy compliance review; an informational copy of the Chief’s Report, feasibility
report, and other documents generally also are transmitted to Congress at this time.
These project planning steps are generally included among four phases of project development
and 21 distinct steps that must occur from project initiation to construction. Those phases and
steps, as they have been identified by the Corps, are illustrated in Figure 1. (Details are provided
in the chart in the “Detailed Actions During the 21 Steps of Project Development” section.)
15
33 U.S.C. §2282(a)(4).
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Figure 1. 21 Steps of Civil Works Project Development
Source: CRS, based on the Corps’ “21 Steps to a Civil Works Project,” available at
http://planning.usace.army.mil/toolbox/process/21-Steps.pdf.
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As illustrated in Figure 1, Congress is responsible for key milestones in the project development.
For example, Congress generally
•
authorizes the Corps to prepare a study of the water resources problem;
•
appropriates funds for the Corps study;
•
authorizes the Corps to construct a project; and
•
appropriates funds to the Corps to construct the project.
Congress also provides oversight during project development, in part, when deciding whether it
will continue to appropriate funds for necessary studies, reports, or evaluations that are required
throughout the project development process.
Generally, few Corps studies into water resources problems lead to project construction.
Historically, of every 100 reconnaissance studies undertaken, approximately 33% led to
feasibility studies and approximately 16% resulted in project construction.16 Further, the rate of
Corps authorizations exceeds the rate of the agency’s annual appropriations.17 Consequently, only
a subset of authorized activities is included in the President’s budget request and is funded by
enacted appropriations. This results in competition for funds among authorized activities during
the appropriations process.
To concentrate limited resources and to move ongoing projects toward completion, budget
requests by the George W. Bush and Obama Administrations have focused funding on projects
near completion, and have limited requests for funding for new studies and projects. Few new
Corps studies or projects have received funding in recent fiscal years; new activities or activities
that have not recently received funding in Administration requests are often referred to as “new
starts.” With limited new starts receiving funding from Congress, the majority of studies and
construction projects authorized in WRDA 2007 are currently unfunded and cannot proceed
unless or until funds are appropriated. As a result, whether or when project studies or construction
activities receive funding will have the greatest impact on the time it takes to deliver a project.18
Environmental Evaluation and
Compliance Requirements
During planning, the Corps is obligated to determine a project’s potential economic, social, and
environmental benefits and detriments. Processes and procedures that the Corps uses to ensure
compliance with that directive and any other applicable planning requirements are implemented
in accordance with the Corps’ Planning Guidance Notebook.19 The Notebook provides the overall
16
Lt. General Robert B. Flowers, Army Corps Chief of Engineers, oral statement, Reforms to Address the Corps of
Engineers Feasibility Studies, hearing before Senate Committee on Environmental and Public Works, Subcommittee
on Transportation and Infrastructure, March 15, 2001, available at http://epw.senate.gov/stm1_107.htm. These
proportions were cited using project data from the early 1990s. More recent statistics are not publicly available.
17
For example, it has been reported that the Corps has a construction backlog of $60 billion.
18
See CRS Report R41243, Army Corps of Engineers Water Resource Projects: Authorization and Appropriations, by
(name redacted) and (name redacted).
19
The Corps currently implements the planning stage of project development in accordance with “Engineer Regulation
1105-2-100: Planning Guidance Notebook,” April 2000. The “Planning Guidance Notebook” provides the overall
(continued...)
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internal agency direction by which civil works projects are formulated, evaluated, and selected
for recommendation to Congress.
As the Corps implements the project development process, environmental requirements are
integrated into the planning process in accordance with the “Environmental Evaluation and
Compliance” requirements provided in the Notebook.20 Processes and procedures necessary to
meet the environmental evaluation and compliance requirements are intended to ensure Corps
compliance with NEPA, the Water Resources Planning Act (as reflected previously in planning
requirements established in the P&G and now in the P&R), and other applicable federal
environmental laws, regulations, and executive orders, and other applicable federal planning
requirements.
As noted previously, this report looks at two separate but related groups of environmental
requirements: (1) those explicitly applicable to water resources development that must be
addressed by the Corps during planning, and (2) those applicable as a result of project-specific
impacts that are intended to protect human health or minimize harm to certain aquatic and other
resources. Activities necessary to ensure compliance with the second group of requirements may
take place during project design, construction, and operation. However, it is largely within the
planning phase of development that the Corps completes required studies, reports, evaluations,
and analyses, and conducts necessary outside agency consultations to determine how compliance
with those requirements is to be met.
Integrating the Corps’ environmental evaluation and compliance requirements into the planning
process is intended to ensure that actions necessary to demonstrate Corps compliance with any
applicable requirements will be identified and largely addressed before Congress authorizes
project construction. For any given project, environmental compliance does not end with project
planning. It continues through final project design, construction, and operation. A discussion of
activities that may occur during those additional phases of project development and operation is
beyond the scope of this report.
Corps-Specific Requirements Addressed During Planning
The Water Resources Planning Act resulted in the establishment of planning requirements
applicable to all federal water resource projects, including those undertaken by the Corps. Among
other study planning objectives, Congress requires federal investment in water resources
development to characterize the beneficial and adverse effects of a project based, in part, on its
evaluation of environmental quality (EQ) measures associated with a project.21 Congress also
(...continued)
direction by which the Corps’ civil works projects are formulated, evaluated, and selected for overall implementation.
The April 2000 notebook includes appendixes that have been added at later dates to address various issues specific to
the project planning process.
20
Planning Guidance Notebook, Appendix C, “Environmental Evaluation and Environmental Compliance.”
21
EQ measures include activities that meet the national objective that federally financed water resource programs
enhance the quality of the environment, including the protection of the environment, and that opportunities for such
activities be considered in the planning, design, construction, and operation and maintenance of projects.
“Opportunities” for enhancement of the environment are to be sought through each phase of project development. See
42 U.S.C. §§1962-2 and 1962-3, and Water Resource Policies and Authorities: Corps of Engineers Participation in
Improvements for Environmental Quality, at 33 C.F.R. Part 236.
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established additional planning requirements that apply to water resource projects undertaken
specifically by the Corps. These Corps-specific requirements are codified primarily in Title 33 of
the U.S. Code. Such requirements include, but are not limited to, those that specify the following:
•
Matters to be addressed in planning—requires that the quality of the total
environment (including preservation and enhancement of the environment) and
the preservation of cultural and historical values be included, among other
factors, in the formulation and evaluation of the costs/benefits of water resource
projects (§2281(a)).
•
Reconnaissance studies—requires a preliminary analysis of the federal interest,
costs, benefits, and environmental impacts of the project (§2282(b)).
•
Contents of feasibility reports—requires reports to describe the economic,
environmental, and social benefits and detriments of the recommended plan and
alternative plans considered by the Corps (§2282(a)(1)).
•
Benefits and costs attributable to environmental measures—directive to the
Corps to, when considering costs/benefits, evaluate measures to achieve EQ
benefits, such as fish and wildlife enhancement, at least equal to the costs of such
measures (§2284).
Processes and procedures to meet these and other Corps-specific planning requirements are found
primarily in the Corps’ Planning Guidance Notebook, but are also included in various other Corps
documents such as Engineer Regulations (ER), Engineer Circulars (EC), Engineer Pamphlets
(EP), and other documents.
Impact-Specific Environmental Requirements
As noted previously, during the planning process, the Corps must identify requirements that arise
from federal laws, regulations, executive orders, or Corps policy that may apply as a result of
project-specific impacts. The NEPA compliance process (hereinafter the NEPA process) generally
forms the framework that the Corps uses to identify those requirements and any actions that must
be taken to ensure Corps compliance with applicable requirements, before a project is authorized
for construction.
NEPA is intended, in part, to ensure that federal agencies include a consideration of the
environmental impacts of an action among other factors (e.g., economic or community benefits)
considered before the agency makes a final decision on a project. The Corps identifies and
demonstrates its consideration of environmental impacts, pursuant to NEPA, through the
preparation of certain publicly available environmental review documents. Requirements that
define the appropriate NEPA documents and required elements of those documents are found in
the regulations promulgated by the Council on Environmental Quality (CEQ)22 and by the
Corps.23 NEPA documents of relevance to Corps civil works projects will likely be the following:
22
40 C.F.R. Parts 1500-1508; CEQ regulations implementing NEPA that are broadly applicable to all federal agencies.
33 C.F.R. Part 230; Corps procedures for implementing NEPA. The Corps regulations supplement the CEQ
regulations to include detail specific to projects implemented by the Corps.
23
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•
Environmental Impact Statements (EIS)—prepared for every major federal action
that may have a “significant” effect on the quality of the human environment.24
The Corps identifies feasibility reports for the authorization and construction of
major projects among those that normally require an EIS. An EIS is prepared in
two stages, a draft and final EIS. If significant time passes after issuance of a
final EIS (as may occur if significant time lapses between the time Congress
authorizes project construction and appropriates funding for that construction), a
Supplemental EIS may be required. Completion of the NEPA process is reflected
in the issuance by the agency of a final record of decision (ROD).
•
Environmental Assessments (EA)—prepared if a project’s degree of impact is
uncertain. It will result in either a determination that an EIS is needed or that a
Finding of No Significant Impact (FONSI) may be issued. Maintenance or
modifications to existing Corps facilities or structures may require an EA
resulting in a FONSI.
Among other information, both an EIS and, to a lesser degree of detail, an EA must include a
statement of the purpose and need for an action, a description of all reasonable alternatives to
meet that purpose and need, a description of the environment to be affected by those alternatives,
and an analysis of the direct and indirect effects of the alternatives, including cumulative
impacts.25 Similar information may also be required for water resource projects under other laws
or requirements. For example, during the planning process, the Corps is obligated to identify and
evaluate reasonable alternatives that may meet a project’s purpose and need, and to describe the
areas affected by the alternatives under consideration.
If a project requires the preparation of an EIS or EA, that generally means that it has some
impacts that will require compliance with additional (non-NEPA) environmental requirements.
Generally, any additional environmental requirements will include those that may apply to a
project as a result of that project’s physical or aesthetic impacts to natural or cultural resources
(e.g., direct impacts to fish and wildlife habitat or historic sites, or noise or visual impacts to those
resources) or to air or water quality. Those requirements will likely depend on the resources
affected, the severity of impacts to that resource, and the details of the applicable federal law.
A state, tribal, or federal agency may be required to provide the Corps with certain data or
analysis to allow the Corps to determine the severity of a project’s impact to a protected resource
or whether such a resource is in the project area (e.g., to identify sites of historic significance, the
presence of Native American graves). Depending on the compliance requirements triggered, the
Corps may also be required to consult with or obtain certain approvals (e.g., permits or licenses)
from other state, tribal, or federal agencies.
The potential extent of outside agency involvement will also likely depend on the type of Corps
project being planned. For example, any project that would involve the construction of a facility
that may adversely affect endangered species habitat or result in killing threatened or endangered
species would likely obligate the Corps to consult with the Department of the Interior’s U.S. Fish
and Wildlife Service to identify appropriate measures that could be taken to minimize harm to the
species, pursuant to the Endangered Species Act. Similarly, for ecosystem restoration projects, it
24
42 U.S.C. §4332(2)(C).
For information about required elements of NEPA documents, see CRS Report RL33152, The National
Environmental Policy Act (NEPA): Background and Implementation, by (name redacted).
25
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is likely that the Corps would consult with the U.S. Fish and Wildlife Service to determine
restoration measures necessary to restore endangered species habitat.
Table 1 identifies selected federal statutes that are frequently applicable to civil works projects,
and the action subject to some control or regulation by an outside agency. Pursuant to its authority
under the applicable law, the agency with jurisdiction to implement the law may be required to
consult with or coordinate some element of project development with the Corps, including the
issuance of some approval (e.g., a permit or license) that specifies conditions under which the
protected resource may be used or affected. Outside agency consultations may also be required to
determine appropriate mitigation measures that the Corps will implement to ensure protection of
the resource in accordance with federal law or Corps policy.
Table 1. Selected Federal Laws That Require Outside Agency Review
Actions Commonly Associated with Corps Civil Works Projects
Statute
Action Subject to Outside Agency
Review, Consultation, or Coordination
Agencies with Jurisdictiona
Fish and Wildlife
Coordination Act (1934,
as amended)
The construction of or modification to
projects that affect fish and wildlife habitats,
and all types of aquatic and land vegetation
upon which wildlife is dependent
Department of the Interior’s (DOI’s)
U.S. Fish and Wildlife Service (FWS);
National Oceanic Atmospheric
Administration’s National Marine
Fisheries Service (NOAA Fisheries);
and/or state fish and wildlife agencies.
National Historic
Preservation Act of
1966
Federal projects that affect districts, sites,
buildings, structures, and objects significant to
American architecture, history, archaeology,
and culture.
State or tribal historic preservation
officer; and/or Advisory Council on
Historic Preservation.
The Federal Water
Pollution Control Act
Amendments, or Clean
Water Act (1972; P.L.
92-500)
The discharge of pollutants into waters of the
United States, including the discharge of
dredged material into wetlands or streams.
Environmental Protection Agency
(EPA); and/or authorized state water
quality agency.
Coastal Zone
Management Act of
1972 (P.L. 92-583)
Federal actions that would affect land or water
uses of the coastal zone.
State coastal zone management agency,
NOAA Fisheries, EPA.
Endangered Species Act
of 1973 (P.L. 93-205)
Action that would jeopardize the continued
existence of listed species, or destroy or
adversely modify their designated critical
habitats.
FWS and NOAA Fisheries.
Marine Protection,
Research, and
Sanctuaries Act of 1972
(P.L. 92-532)
The dumping of waste, including dredge or fill
material, into U.S. ocean waters.
EPA.
Wild and Scenic Rivers
Act (1968; P.L. 90-542)
Federal construction of water resource
projects that would have a direct and adverse
effect on the values for which a river was
designated “Wild and Scenic.”
DOI’s National Park Service; state
agencies.
Source: CRS. Statutes selected were included among those identified by the Corps in its Planning Guidance
Notebook, “Appendix C: Environmental Evaluation and Compliance,” as potentially applicable to a project as a
result of its impacts to ecological, cultural, and aesthetic resources, and air and water quality.
a.
This table provides a list of selected agencies from which the Corps may be required to seek some level of
review, consultation, or coordination. It is not intended to be an exhaustive list.
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As evidenced in the enactment of the Fish and Wildlife Coordination Act, as early as 1934
Congress recognized the potential harm to fish and wildlife associated with developing the
nation’s water resources and established provisions to coordinate the protection of fish and
wildlife. However, most of the laws or relevant amendments to existing laws (as illustrated in
Table 1) that affect water resources development today were enacted between 1966 and 1973.
Some establish requirements that apply only to federal actions. These later requirements provide
additional examples of how Congress responded to increased public concern over the impacts of
human activity, in general, and federal agency actions, in particular, to the human and natural
environment.
By identifying any environmental requirements applicable to a project in a single environmental
review document, the NEPA process is used to coordinate and document compliance with
potentially duplicative requirements—that is, to ensure compliance with environmental
requirements established pursuant to NEPA and other project-specific requirements (e.g., the
Clean Water Act or Endangered Species Act), but also to ensure compliance with Corps-specific
evaluation requirements (e.g., requirements pertaining to the environment codified in Titles 33
and 43).
The Corps identifies all applicable impact-specific environmental compliance requirements
within the context of evaluating project impacts pursuant to NEPA. The Corps does not have to
comply with all applicable environmental requirements (obtain necessary permits) before the
NEPA process is complete (i.e., a FONSI or ROD is issued). However, the draft NEPA document
must include a summary of outside agency review and consultation requirements, analyses, and
status of coordination associated with applicable laws and executive orders and memoranda, as
well as a list of all federal permits, licenses, and other entitlements that must be obtained to
implement a proposed action.26 Further, the results of any outside agency coordination completed
or under way, required pursuant to the applicable environmental law, must be summarized in the
final NEPA document.27
Integrating Environmental Requirements
into the Project Development Process
For each of the 21 steps of project development identified by the Corps (see Figure 1 above), the
chart below lists activities that occur during those steps. The chart is not an exhaustive list of all
studies, reviews, decisions, approvals, or activities required to be completed in each step of civil
works project development. Instead, it illustrates key processes, procedures, and Corps decision
points associated with completion of the Corps’ environmental evaluation and compliance
requirements that occur during planning, particularly as they are integrated into overall project
development.
26
27
40 C.F.R. §1502.26 and 33 C.F.R. §230.25(a).
33 C.F.R. §230.25(a).
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Environmental Requirements Addressed During Corps Civil Works Project Planning
Detailed Actions During the 21 Steps of Project Development
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Source: CRS, using information included in the Corps’ Civil Works Process Flowcharts with corresponding
Guidance and Regulation posted on the Corps’ “Planning Community Toolbox: Project Delivery” website at
http://planning.usace.army.mil/toolbox/project.cfm?Option=Start&Step=0; Corp Procedures for implementing
NEPA at 33 C.F.R. 230, including requirements in Appendix A specific to the development of feasibility studies;
and the Corps Planning Guidance Notebook, particularly requirements in Appendix C, “Environmental Evaluation
and Compliance.”
Notes: The chart is not an exhaustive list of all studies, reviews, decisions, approvals, or activities required to be
completed in each step of civil works project development. Instead, it is intended to illustrate key processes,
procedures, and Corps decision points associated with completion of the environmental evaluation and
compliance requirements that occur during planning and are integrated into overall project development.
Factors Identified as Causing Delay
The timeliness of Corps delivery has been the subject of scrutiny and oversight by Congress. As
reflected in legislative proposals intended to streamline certain elements of the project
development process, focus has been almost entirely on the time it takes to complete certain
environmental requirements, particularly elements of the NEPA process. However, it is difficult to
determine the degree to which the NEPA process delays projects. That difficulty stems largely
from the unique issues that must be considered by the Corps during the development of water
resource projects. Further, the NEPA evaluation is embedded in the feasibility process, which
requires compliance with other congressional directives. These factors result in a NEPA
implementation process that is unique to water resources development.
As the Corps implements its environmental evaluation and compliance process, it is difficult to
extract and measure the degree to which certain activities may be attributable to a single
environmental requirement. For example, actions necessary to comply with the Endangered
Species Act may overlap with Corps-specific requirements to mitigate project-specific impacts
(i.e., mitigation measures the Corps may be obligated to consider or implement apart from any
explicit requirement to do so pursuant to the Endangered Species Act). Further, activities that may
be necessary to demonstrate compliance with applicable environmental requirements may take
place while the Corps is completing actions required by other laws or requirements (e.g.,
preparing analyses necessary to determine the project’s economic benefits). As a result, it may be
difficult to identify a specific time frame or step in project development in which only
environmental compliance activities are taking place, as illustrated in the chart above.
One issue that has been the subject of particular scrutiny has been the time it takes to complete
consultation or obtain approvals from other federal and state agencies. As discussed above, an
agency with jurisdiction over that resource may be required to provide some level of analysis,
consultation, or approval before a project can proceed. According to Corps procedures, shown in
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the chart above, such activities would take place largely within the overall planning process.
Anecdotal evidence indicates that individual projects may take longer than anticipated due to
disagreements with federal resource agencies or state permitting agencies, but there are limited
data available to determine whether such delays are systemic. Instead, issues that may lead to
such delays are likely project-specific.
The time it takes the Corps to move from one step in the project delivery process to another
depends on a complex array of factors. When comparing individual Corps projects to each other,
the larger, more complex, and costly the project, often the longer each step will take to complete.
However, the role that Congress plays in authorizing studies and project construction and the
timing of appropriations have been identified as factors that have the most significant effect on
the timing of project delivery.28 For example, in terms of the project development process, years
may pass between the following:
•
Approval to initiate a study to the appropriation of federal funds. Funds to
initiate new studies have been limited in recent years. As a result, many
authorized studies never receive appropriations or take several years before initial
funding.
•
Transition from the reconnaissance phase to the feasibility phase. Authorized
studies are subject to annual funding during the budget process. Overall study
funding has been limited in recent years. Also, feasibility phase funding has
received more scrutiny during the budget process in recent years. As a result,
moving from the reconnaissance to the feasibility phase may take years or may
never occur.
•
Transmission of the feasibility report to Congress to construction
authorization. Congress chooses to authorize most Corps projects in Water
Resources Development Acts. While consideration of WRDA bills has been
fairly regular, enactment has not been. Only two WRDAs have been enacted in
the past 13 years (in 2000 and 2007). While waiting for authorization, the Corps
can continue with preconstruction engineering and design (PED) activities, if it is
funded to do so, but cannot move forward until the project is approved by
Congress.
•
Construction authorization to the appropriation of construction funds. Once
the project receives congressional authorization, federal funds for construction
may be sought in the annual Energy and Water Development Appropriations Act.
Competition for inclusion in annual appropriations has curtailed the initiation of
28
On June 5, 2013, Major General Michael Walsh, Deputy Commanding General for Civil and Emergency Operations,
testified before the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment’s hearing “A Review of the United States Army Corps of Engineer’s Reports” (testimony available at
http://transportation.house.gov/hearing/review-united-states-army-corps-engineers-chief%E2%80%99s-reports). In
response to various questions from several Members of Congress, the General discussed issues that may delay project
delivery, as well as efforts being implemented by the Corps to streamline project delivery. Processes or procedures
related to meeting environmental compliance requirements were not included among those that delay projects or that
were being changed to accelerate delivery, he testified. The limited availability of funds necessary to continue the
number of projects authorized for construction was identified as the primary factor that affects the timing of project
delivery. When asked specifically whether or which environmental regulatory requirements implemented by outside
agencies could be eliminated to expedite project delivery, the General stated that he could not identify a single set of
requirements established by Congress that he would suggest eliminating to streamline the process.
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new construction projects. For example, many new civil works projects
authorized in WRDA 2007 have not received construction funding as of FY2013.
Instead, funding priorities have generally been on existing projects (e.g., ongoing
construction or maintenance activities).
Given the range of environmental issues and impacts that Congress requires the Corps to evaluate
for civil works projects, there is little debate that the body of requirements that may be deemed
“environmental” that apply to Corps projects often represents a significant element of the project
development process. What is unclear is whether or which specific environmental requirements
routinely delay project delivery. For example, the issuance of permits by a state water quality
agency pursuant to the Clean Water Act or consultations with the U.S. Fish and Wildlife Service
required pursuant to the Endangered Species Act may take longer than anticipated for a given
project. That does not necessarily mean that compliance with those requirements will delay
project delivery, especially if compliance is demonstrated concurrently with other required
elements of project development. Further, issues that may result in the compliance process taking
longer than anticipated for a given project will likely be related to that project. It may not
necessarily be related to an issue that could be avoided in the future by changing procedures or
requirements applicable to all projects.
Even so, the length of time it takes to plan for and initiate construction of water resource projects
has been of increasing concern to some stakeholders and a subject of congressional oversight.
Because of the complex body of planning requirements, some believe reexamination of the
existing requirements and processes to implement these requirements is in order. Some observers
believe such examination and reform of the status quo could lead to a more streamlined and
ultimately a faster review process. The challenge, however, may lie in deciding whether or which
existing steps in the project planning process can be eliminated, combined, or otherwise
streamlined. Background information included in this report is provided for the consideration of
these issues.
Author Contact Information
(name redacted)
Analyst in Environmental Policy
/redacted/@crs.loc.gov, 7-....
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