Every two years, a bill known as the Water Resource Development Act (WRDA) influences how and where the U.S. Army Corps of Engineers (Corps) carries out its broad water management responsibilities throughout the United States. In mid-December of last year, Congress passed the Water Resources Development Act of 2022 (see section summaries, full text), authorizing Corps activities across the country related to flood risk management, navigation, ecosystem restoration, and other mission areas.
WRDA 2022 enacts important policy reforms, authorizes 94 new feasibility studies, and authorizes or modifies 21 projects for construction. As a whole, the 2022 bill has been lauded by many environmental organizations for its emphasis on climate resilience, ecosystem restoration, and the natural and nature-based solutions that can help advance both of those goals simultaneously. However, Congressional directives are only the first step of a shift in administrative policy. As we noted on this blog last year, to be meaningful, the principles, objectives, and policies set forth in any WRDA bill “must be translated into concrete, mandatory provisions in the project planning policies and procedures that are implemented on the ground by [the Corps’] District-level staff.”
We expect many of the new WRDA 2022 provisions to be further shaped by implementation guidance issued at a national level by the Assistant Secretary of the Army for Civil Works; these guidance memoranda routinely are used to clarify definitions, define the scope of a policy’s application among the agency’s mission areas and business lines, and/or establish and refine procedures related to funding, timing, and other aspects of program implementation. The issuance of a new suite of WRDA guidance presents a critical opportunity for Corps Headquarters to comply with recent Congressional mandates, as well as to affirm and further advance the Biden administration’s overarching commitments to integrating climate preparedness and resilience in all Corps activities and deploying nature-based solutions with multiple benefits.
There is an opportunity for the public to help shape the contents of the new guidance suite: a broad law enacted in 2018 requires the Corps to provide an opportunity for “interested non-federal stakeholders” to provide input and recommendations to the agency on the development and issuance of any WRDA implementation guidance. The Corps issued a notice seeking public input on forthcoming WRDA 2022 guidance in late January. It appears that this blanket notice-and-comment opportunity is being used to fulfill the requirement for any future guidance issued under the 2022 law’s many provisions, including but not limited to:
- Sec. 8130. Beneficial use of dredged material; management plans: Repurposing dredged sediment from navigation projects for nature-based restoration projects has an important role to play in the Corps’ climate resilience activities. Building on a WRDA 2020 policy to “maximize the beneficial use, in an environmentally acceptable manner, of suitable dredged material obtained from the construction or operation and maintenance of water resources development projects,” the 2022 law requires preparation of a “strategic plan that identifies opportunities and challenges relating to furthering the policy of the United States to maximize the beneficial use of suitable dredged material….”
Among other things, the strategic plan is required to include identification of specific barriers and conflicts that impede beneficial use and recommendations to address them, and identification of specific measures to improve interagency and intergovernmental communications and coordination. There is an opportunity for the Corps to use the forthcoming guidance to determine the process-based aspects of the strategic plan, including how the consultation and stakeholder input requirements are implemented.
- Sec. 8103. Shoreline and riverbank protection and restoration mission: Amending section 212 of WRDA 1999, this section explicitly authorizes the Corps to carry out projects for the protection and restoration of coastal shorelines as part of its flood mitigation and riverbank restoration mission. Importantly, the provision explicitly authorizes the Corps to deviate from its typical cost-benefit analysis and economic justification requirement: instead, the Corps may implement a project under this section if the Secretary of the Army determines that the project “(1) will significantly reduce potential flood, hurricane and storm, or erosion damages; ‘‘(2) will improve the quality of the environment; and ‘‘(3) is justified considering all costs and beneficial outputs of the project.’’
The process for making this determination and the definition of key terms (e.g., “justified,” “significantly reduce”) are likely to be set out in WRDA implementation guidance. Beyond its importance to these specific project types, the alternative project justification standard may function as a pilot of sorts, helping to inform a broader cost-benefit policy reform that is currently underway at the agency—meaning the near-term implementation of this WRDA provision might help make or break efforts to effectively, efficiently advance nature-based projects at scale.
- Sec. 8145. Lower Mississippi River Basin demonstration program: WRDA 2022 requires the Corps to establish a program to provide environmental assistance (in the form of design and construction assistance for flood or coastal storm risk management or aquatic ecosystem restoration projects) in the Lower Mississippi River (LMR) Basin, based on a comprehensive LMR restoration plan to be developed within two years in cooperation with state and local governmental officials and affected stakeholders. Projects implemented through the plan may include projects for sediment and erosion control; riverbank and shoreline protection; ecosystem restoration; channel modifications; beneficial use of dredged material; and “other related projects that may enhance the living resources” of the LMR.
The comprehensive plan is required to “give priority” to projects that improve water quality, reduce hypoxia in the LMR or Gulf, or use a combination of structural and non-structural measures, including alternatives that use natural and/or nature-based features. Implementation guidance may affect, e.g., the scope of eligible project types, how “priority” is assigned to non-structural and nature-based alternatives, and the process for integrating input from non-federal stakeholders into the planning effort.
The current request for public comment invites input on any provision of WRDA 2022, and there is still plenty of time. The public has until March 21, 2023, to submit comments in the following ways:
- Electronically, through a docket on the federal rulemaking portal (the agency’s preferred method);
- By e-mail, WRDA2022@usace.army.mil. Include Docket ID No. COE-2023-0002 in the subject line of the message;
- By mail, addressed to U.S. Army Corps of Engineers, ATTN: Ms. Amy Frantz, CEW-P, U.S. Army Corps of Engineers, 3F91, 441 G St. NW, Washington, DC 20314.
Step-by-step tips on how to provide effective written comments are available from ELI’s Gulf of Mexico team.