May 7, 2021
Via: WRDA2020@usace.army.mil and http://www.regulations.gov/ Ms. Amy Frantz
U.S. Army Corps of Engineers
Headquarters, U.S. Army Corps of Engineers
441 G Street NW., Room 3F91 Washington, DC 20314-1000
Re: Implementation Guidance for the Water Resources Development Act of 2020, COE-2021-0002
Dear Ms. Frantz:
The undersigned 74 conservation, faith, civic, social justice, and recreation organizations appreciate the opportunity to comment on the U.S. Army Corps of Engineers (Corps) implementation guidance (Guidance) for the Water Resources Development Act of 2020. On behalf of our millions of members and supporters across the country, we urge adoption of the recommendations outlined below, which will assist the Corps in prioritizing natural and nature-based solutions, addressing environmental injustice, and increasing the nation’s resilience to climate change.
We also urge the Corps to ensure that staff have the training and resources needed to plan and evaluate natural and nature-based solutions and effectively carry out consultation and public engagement responsibilities. Corps staff must also invest the time needed to build authentic and respectful relationships with Tribes, communities of color, and economically disadvantaged communities.
Section 115 (Flood Protection Projects) incentivizes the use of natural and nature-based measures and places those measures on a level playing field with nonstructural measures. The Guidance should direct the Corps to: (a) fully consider natural and nature-based alternatives through the final array of alternatives for flood and storm risk management studies (as is required for other nonstructural measures), and inform all non-federal sponsors, stakeholders, and the public about this requirement; (b) describe the types of activities that qualify as natural and nature-based measures; (c) formally notify all
current and future non-federal sponsors and study partners that natural and nature-based measures are subject to the same cost-share requirements as other nonstructural measures; (d) establish a natural and nature-based features Community of Practice; (e) integrate training on natural and nature-based features into the core classes of the planning training curriculum; and (f) require immediate implementation of Section 115 while also directing staff to initiate an update to the planning guidance notebook to provide critical guidance on the formulation and evaluation of natural and nature-based features, and other needed updates.
Because Section 115 directly affects the assessment of natural and nature-based features under Section 1149(c) of WRDA 2018 (Inclusion of Alternative Measures for Aquatic Ecosystem Restoration),1 our organizations also urge the Corps to revise the Section 1149(c) Guidance to: (a) clarify that Section 1149(c) must be implemented in a manner that is consistent with the new requirements of WRDA 2020 Section 115; (b) clarify that natural and nature-based measures are presumed to be “practicable” unless it is clearly demonstrated that such measures cannot provide, or significantly contribute to, an appropriate level of protection; and (c) direct a full evaluation of natural and nature-based alternatives through the final array of alternatives for flood and storm risk management studies.
Section 118 (Pilot Programs on the Formulation of Corps of Engineers Projects in Rural Communities and Economically Disadvantaged Communities) directs the Corps to establish two pilot programs to evaluate opportunities to reduce flood, hurricane, and storm risks for economically disadvantaged and rural communities. Studies carried out under the Pilot Program for Economically Disadvantaged Communities will be at full federal expense and must incorporate natural or nature-based features to the maximum extent practical. The Guidance should: (a) ensure extensive outreach to promote awareness of the pilot programs and application opportunities, using best practices2 and processes developed pursuant to WRDA 2020 Section 112 to ensure early and meaningful community and Tribal engagement; (b) direct the Corps to work with the Federal Emergency Management Agency and Environmental Protection Agency to identify communities that could benefit from the pilot programs; (c) direct the Corps to provide technical assistance with pilot program applications; and (d) ensure robust consideration and incorporation of natural and nature-based features, including as provided for under WRDA 2020 Section 115 and WRDA 2018 Section 1149(c).
Section 111 (Resiliency Planning Assistance) directs the Corps to prioritize resiliency planning assistance to economically disadvantaged communities and communities subject to repetitive flooding, and emphasizes the need for the Corps to provide technical assistance to improve resiliency planning. The Guidance should direct the Corps to: (a) work with the Federal Emergency Management Agency, the Environmental Protection Agency, and others to identify communities that could benefit from resiliency planning; (b) develop strategies for effective outreach to make communities aware of the availability of resiliency planning technical assistance; and (c) consider a community’s ability to pay in establishing the non-federal cost share for such assistance.
Section 112 (Project Consultation) directs the Corps to update its policies on environmental justice considerations; strengthen its Tribal consultation requirements; promote meaningful involvement with minority communities, economically disadvantaged communities, and Indian Tribes in carrying out water resources development projects; and issue long overdue reports. The Guidance should: (a) ensure that Tribes drive the development of the Corps’ Tribal consultation procedures, including by directing the Corps’ Tribal Nations Technical Center of Expertise (TNTCX) to robustly engage with Tribes and Tribal leaders to obtain recommendations and to incorporate recommendations obtained through consultations underway pursuant to the January 26, 2021 Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships; (b) direct the Corps to work with the Environmental Protection Agency and other federal agencies with environmental justice advisory committees to identify best practices3 for ensuring early and meaningful community and Tribal engagement; and (c) direct the Corps to engage in robust outreach to Tribes, underserved communities, and environmental justice organizations to obtain recommendations for improving the Corps’ processes.
Section 113 (Review of Resiliency Assessments) requires the Corps to update existing planning guidance related to sea level rise and increased inland flooding and take other actions that are fundamental to developing and operating effective and resilient projects that affect coastal areas. The Guidance should direct the Corps to consult with climate experts from academia, other federal and state agencies, and non-governmental organizations, in carrying out this update.
Section 116 (Feasibility Studies; Review of Natural and Nature-Based Features) requires each flood or storm damage reduction feasibility study to include a summary of any natural or nature-based feature alternatives considered, including their long-term costs and benefits; and if such alternatives were rejected, explain that decision. The Guidance should require the summary to clearly describe the: (a) level of analysis and evaluations conducted for the rejected natural or nature-based alternatives; (b) specific flood damage reduction benefits that could have been achieved; (c) quantified and unquantified co-benefits that could have been obtained, including increased resiliency; (d) estimated cost of the rejected alternatives; and (e) specific reasons why the alternative was not selected.
Section 123 (Review of Corps of Engineers Assets) directs the Corps to develop an inventory of projects: (1) that are no longer necessary for the Corps’ mission responsibilities; (2) for which incorporation of natural or nature-based features could produce long-term cost savings or increased resiliency; or (3) that no longer meet the authorized purposes due to deferred maintenance requirements. The Guidance should direct the inventory to also include projects that could be re-operated to increase resiliency and allow wildlife to thrive (e.g., through changes to water control manuals or lock and dam operations).
Section 125 (Beneficial Use of Dredged Material; Dredged Material Management Plans) facilitates strategic use of clean and appropriately sourced dredged materials for restoration and other projects, which is particularly important in regions like the Mississippi River Delta where insufficient sediment transport severely aggravates coastal wetland losses. The Guidance should: (a) prioritize the required regional dredged material management plans, accounting for environmental benefits in the assessment of the federal standard, and developing projects for economically disadvantaged communities; and (b) establish formal sidebars to beneficial reuse projects to protect public safety and the environment, including requiring that the sediments being beneficially reused are free of toxic contamination and are fully compatible with the restoration site, and that the sediments are being reused for a sustainable and legally-compliant project.4
Section 160 (Definition of Economically Disadvantaged Community) directs the Corps to define the term ‘economically disadvantaged community’ for purposes of WRDA 2020 and provide for public notice and comment on this definition. The Guidance should direct the Corps to: (a) ensure robust public input and direct engagement with environmental justice community groups and organizations, Tribes and Tribal organizations, state and local governments, academia, and non-governmental organizations in developing this definition; (b) carefully evaluate and fully consider the definitions used in the introduced Environmental Justice for All Act (H.R. 5986); and (c) consult and coordinate with the Council on Environmental Quality, Environmental Protection Agency, and other federal agencies to promote alignment of definitions across federal programs as appropriate.
Section 301 (Deauthorization of Inactive Projects) establishes a unified process for the deauthorization of $10 billion in antiquated or inactive water resources development projects, and requires a complete re-study of unconstructed projects with studies more than 20 years old. The Guidance should also direct comprehensive re-study and reevaluation of projects where construction has not taken place for 20 years, even if minor construction had been initiated before that date.
WRDA 2016, 2014, and 2007 (Various Mitigation Provisions) establish clear and important requirements to help the Corps plan and implement ecologically successful compensatory mitigation.5 However, implementing Guidance does not accurately describe these requirements, leading to a failure to require mitigation for the operation of major navigation and river management projects, even when the projects’ operating plans are reevaluated through supplemental environmental reviews that acknowledge the operating plans will cause significant harm to aquatic habitat for decades to come. To correct these legal errors, the Corps should issue new mitigation Guidance to clarify that: (a) the full suite of statutory mitigation requirements must be satisfied whenever any type of study document selects a project alternative, including environmental impact statements and supplemental environmental impact statements that are not submitted to Congress to support project authorization; (b) programmatic mitigation plans may not be used in lieu of a project specific mitigation plan unless the programmatic plan also meets the detailed plan and other requirements established by WRDA 2007; and (c) the Corps must comply with the regulatory program mitigation requirements (including 40 CFR §§ 230.91-230.98) in addition to the statutory mitigation requirements as a matter of law.6
Our organizations urge the Corps to prioritize swift and effective implementation of the Water Resources Development Act provisions highlighted in these comments, including by adopting the Guidance recommendations outlined above. These essential provisions will make communities safer and improve the resilience and health of the nation’s waters, wildlife, and people.
Marion "Penny" Freistadt Volunteer
350, Core Group
Beth Butler Executive Director A Community Voice
Director, Upper Mississippi River American Rivers
Joseph Zupan Executive Director Amigos Bravos
Riverkeeper and Executive Director Apalachicola Riverkeeper
Appalachian Mountain Advocates
Chad Berginnis, CFM
Association of State Floodplain Managers
Dean A. Wilson Executive Director Atchafalaya Basinkeeper
Anne Millbrooke Authorized Signer Bozeman Birders
Michael William Mullen Riverkeeper
Citizens Against Widening the Industrial Canal (CAWIC)
Citizens Committee to Complete the Refuge
Climate Reality Project: New Orleans, LA Chapter
Volunteer Organizer Coalition Against Death Alley
Coalition for the Delaware River Watershed
Coalition to Restore Coastal Louisiana
Coastal States Organization
Colorado Wildlife Federation, Inc.
Columbia River Crab Fisherman's Association
Concerned Citizens of St. John
Lori Simmons Co-Founder
Defenders of Somi Se'k
Daneeta Jackson Business Owner/Artist Elektrik Zoo Films, Inc.
Executive Director Endangered Habitats League
Environmental Defenders of McHenry County
Senior Policy Manager, Coastal Resilience Environmental Defense Fund
Tom H. Logan
Chairman, Board Conservation Committee Fly Fishers International
President & CEO
Friends of the Los Angeles River
Trevor A Russell
Water Program Director Friends of the Mississippi River
Ronald M Stork Policy Director Friends of the River
Gallatin Wildlife Association
Great Egg Harbor Watershed Association
Rev. Gregory T. Manning
Founder / Chair
Greater New Orleans Interfaith Climate Coalition
James M. Redwine VP & COO
Andrew Whitehurst Water Program Director Healthy Gulf
Emily A. Wood
Indiana Wildlife Federation
Kentucky Resources Council, Inc.
Kentucky Waterways Alliance
Founder / Director
Louisiana League of Conscious Voters
Advisory Board President
Lower Mississippi River Foundation
Laura Paul Executive Director lowernine.org
Executive Director and Waterkeeper Miami Waterkeeper
David Joseph Schmitt Executive Director Mill Creek Alliance
Missouri River Network, Sierra Club
Vice President, Water Conservation National Audubon Society
Senior Director, Environment and Climate Policy National Parks Conservation Association
Senior Water Resources Counsel National Wildlife Federation
gerald h meral
Director, California Water Program Natural Heritage Institute
Director of Federal Water Policy Natural Resources Defense Council
Comments on WRDA 2020 Implementation Guidance, COE-2021-0002
George R Cunningham
Nebraska Wildlife Federation
Eileen Murphy Vice President NJ Audubon
North Carolina League of Conservation Voters
VP of Conservation Policy
North Carolina Wildlife Federation
Executive Director Ohio River Foundation
Pennsylvania Federation of Sportsmen & Conservationists
Pennsylvania Wildlife Federation
Water Policy Advisor
Planning and Conservation League
Water Resources Associate Prairie Rivers Network
Property Rights and Pipeline Center
Quapaw Canoe Company
Watershed Resources Manager RiverLink Inc.
Laura Early Executive Director Satilla Riverkeeper
South Yuba River Citizens League
Sierra B. Weaver
Senior Attorney and Coast & Wetlands Program Leader
Southern Environmental Law Center
Lisa Rinaman Riverkeeper
St. Johns Riverkeeper
Coastal Preservation Manager Surfrider Foundation
The Passaic River Coalition
Melanie Winter Founder & Director The River Project
Executive Director and President The Wetlands Initiative
Senior Government Relations Representative Theodore Roosevelt Conservation Partnership
Tip of the Mitt Watershed Council
Tualatin Riverkeeper & In-House Counsel Tualatin Riverkeepers
Gulf Program Director
Turtle Island Restoration Network
Comments on WRDA 2020 Implementation Guidance, COE-2021-0002
David Groenfeldt Director
Bart Mihailovich Organizing Manager, U.S. Waterkeeper Alliance
1 WRDA 2020 Section 116(a) also makes technical corrections to WRDA 2018 Section 1149(c).
2 See, e.g., National Environmental Justice Advisory Council, Model Guidelines for Public Participation at https://www.epa.gov/sites/production/files/2015-02/documents/recommendations-model-guide-pp-2013.pdf or the proposed Environmental Justice for All Act at https://www.congress.gov/bill/116th-congress/house-bill/5986/.
4 Adverse impacts from beneficial reuse can include: re-suspending significant quantities of toxic sediments that harm people and wildlife, burying vital fish and wildlife habitat by placing sediment in an inappropriate location,
5 WRDA 2016, Section 1162 (Fish and Wildlife Mitigation), WRRDA 2014, Section 1040 (Fish and Wildlife Mitigation), and WRDA 2007 Section 2036(a)( Mitigation for Fish and Wildlife and Wetland Losses).
6 The mitigation guidance incorrectly states that the regulatory program requirements will be met if planners follow the guidance in ER 1105-2-100, but the regulatory mitigation requirements are not found in ER 1105-2-100.
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