[Federal Register Volume 68, Number 76 (Monday, April 21, 2003)]
[Rules and Regulations]
[Pages 19357-19371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9008]


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DEPARTMENT OF DEFENSE

Corps of Engineers, Department of the Army

33 CFR Part 203

RIN 0710-AA47


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

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: The Corps is promulgating a final rule to revise 33 CFR part 
203. Today's final rule completes the rulemaking process initiated on 
26 February 2002 with publication of the proposed rule to revise 33 CFR 
part 203, which implements Public Law 84-99. The revisions are 
necessary to reflect current policy, add features required by the Water 
Resources Development Act of 1996 (WRDA 96) and streamline certain 
procedures concerning Corps authority addressing disaster preparedness, 
response, and recovery activities. WRDA 96 additions include the option 
to provide nonstructural alternatives in lieu of structural repairs to 
levees damaged by flood events, and the provision of a levee owner's 
manual. Other significant changes include expansion of investigation 
ability for potential Advance Measures work, and a streamlined approach 
for requests for assistance from Native American tribes and Alaska 
Native Corporations.

DATES: This rule is effective May 21, 2003.

FOR FURTHER ASSISTANCE CONTACT: Mr. Jeffrey D. Jensen, Headquarters, 
U.S. Army Corps of Engineers, Civil Emergency Management Branch, CECW-
OE, at (202) 761-4561.

SUPPLEMENTARY INFORMATION: 
    I. Background. Pursuant to its authorities in 33 U.S.C. 701n 
(commonly and hereinafter referred to

[[Page 19358]]

as Public Law 84-99), the Corps is revising 33 CFR part 203, which 
implements Public Law 84-99. A notice of proposed rulemaking was 
published in the Federal Register on February 26, 2002 (67 FR 8748). 
Public Law 84-99 authorizes the Corps to undertake preparedness, 
response, and recovery activities for natural disasters. The Water 
Resources Development Act of 1996 amended Public Law 84-99 to add the 
authority to provide, at the option of the non-Federal sponsor, 
nonstructural alternatives in lieu of structural repairs to levees 
damaged by flood events, and also added the requirement to provide a 
levee owner's manual. Other significant changes include expansion of 
investigation ability for potential Advance Measures activities, and a 
streamlined approach for requests for assistance from federally 
recognized Native American Tribes and Alaska Native Corporations. In 
addition, these changes modify and streamline policy involving the 
Corps policy concerning assistance for ice jams, and the Corps policy 
requiring reimbursement in kind or in cash for certain loaned supplies 
and materials. Subpart D clarifies the definition and inspection of 
``Active'' flood control works (i.e., those flood control works 
eligible for consideration to receive Corps assistance when damaged in 
a flood, hurricane, or coastal storm), provides clarification 
concerning Corps inspections of non-Federal flood control works, and 
adds a new section that addresses inspections and rehabilitation of 
Federal flood control works that merely incorporates existing Corps 
policy. A new section (Sec.  203.49) incorporates existing Corps policy 
on the use of Public Law 84-99 funds for rehabilitation of Hurricane/
Shore Protection Projects, and, when undertaking such a rehabilitation 
effort, requires incorporation of the existing Project Cooperation 
Agreement to have the project sponsor cost share the renourishment/
repair effort. In addition, Corps policy is revised to specify that, 
during droughts, water is provided for human consumption only, not for 
livestock. The revised rule will go into effect 30 days after 
publication of the final rule in the Federal Register, except that all 
requests for assistance received by the Corps, for emergencies declared 
by the appropriate District Engineer prior to the effective date of the 
final rule, will be ``grandfathered'' under the previous rule for any 
assistance provided if this is more advantageous to the non-Federal 
entity involved and in accordance with prior Corps policy.
    Electronic Access and Filing Addresses. You may submit comments by 
E-mail to [email protected]. Comments should be in one of 
the following formats: Word, WordPerfect, or ASCII. The subject line 
for submission of comments should begin with ``33CFR203 Final Rule 
Comments from (insert name of agency, organization, or individual).''

Procedural Requirements

    a. Review under the National Environmental Policy Act. This 
revision is not a major Federal action. There are no significant 
changes to any aspects of this regulation that may impact on the human 
environment. When a specific action (e.g., a proposal to rehabilitate a 
damaged levee) occurs, appropriate environmental documentation, to 
include an Environmental Assessment/ Environmental Impact Statement 
when required, is prepared by the Corps.
    b. Unfunded Mandates Act. This proposed rule does not impose an 
enforceable duty among the private sector and therefore, is not a 
Federal private sector mandate, and is not subject to the requirements 
of section 202 or 205 of the Unfunded Mandates Act. The Corps has also 
found, under section 203 of the Act, that small governments will not be 
significantly and uniquely affected by this rulemaking.

Comments

    Interested parties have been afforded the opportunity to 
participate in the making of this rule. Due consideration has been 
given to the comments received.

Cost Sharing

    Over ninety percent of the commenters addressed the proposal to 
change the cost share provisions for rehabilitation of damaged flood 
control works, both Federal and non-Federal. We agree with the 
commenters. The Corps will maintain the status quo for cost sharing 
rehabilitation of damaged flood control works. Therefore, 
rehabilitation of Federal flood control works will remain at 100 
percent Federal cost, and rehabilitation of non-Federal flood control 
works will remain at 80 percent Federal cost and 20% local cost.

Non-Structural Alternative Projects

    WRDA 96 added the statutory authority to undertake Non-Structural 
Alternative Projects in lieu of structural levee rehabilitation 
efforts. Several commenters complimented the Corps for its 
implementation policy. Several commenters opposed the implementation of 
any policy for non-structural alternative projects.
    Because of the statutory language amending Public Law 84-99, 
including the provision that any nonstructural alternative project 
would be undertaken solely at the request of the affected project 
sponsor, we disagree that this policy should not be implemented. Every 
project sponsor maintains the ability to request or decide against a 
nonstructural alternative Project, which effectively gives the 
commenters against the policy the same capabilities as they would have 
if the policy were not implemented.

Scope of Levee Rehabilitation Projects

    One commenter suggested that Section 203.15(g) be changed to add 
language saying that projects should be rehabilitated to their original 
design level of protection rather than the level of protection that 
existed prior to the storm or flood causing the damage. The commenter 
states that such work should not be considered a ``betterment'' for 
which the sponsor is responsible.
    We do not agree with the commenter on this point. The affected 
section is almost verbatim taken from statutory language. The effort 
necessary to preserve the design level of protection is not a 
betterment; it is maintenance, regardless of when it is undertaken. 
Congress and the Corps have long recognized that sponsors are 
responsible for operations and maintenance of flood control projects, 
and long term settlement/erosion that may affect the current day level 
of protection has historically been considered sponsor maintenance.

Work in Kind

    Several commenters submitted comments about credit for work in kind 
being undertaken by the local sponsor. The actual commenters' 
references were to several different sections. Specifically, the 
commenters wanted the Corps to be more liberal in allowing local 
sponsors to pay the local cost share using work in kind, to include 
work traditionally done by the Corps.
    We disagree with this idea. Because of the emergency nature of most 
work undertaken under Public Law 84-99, the generally lower cost of the 
emergency work (compared to that work done by the Corps for 
specifically authorized projects under other authorities), and the 
principle that work by the Corps is intended to supplement State and 
local efforts, no change in the final rule was made. There was no work 
in kind allowance change deemed to be, in the net, more cost effective 
for the

[[Page 19359]]

Corps and less expensive for the local sponsors.

Flood Fighting on Agricultural Levees

    Several commenters stated that the Corps should undertake flood 
fights on levees that protect strictly agricultural lands. They stated 
that there were costs (beyond levee rehabilitation costs) associated 
with overtopped or breached agricultural levees.
    The Corps disagrees with the commenter's intent while recognizing 
their concerns. It is acknowledged that flood control systems in place 
in the United States are not an absolutely ideal system. When a flood 
reaches a magnitude to start breaching or overtopping agricultural 
levees, then there are generally residential, commercial, and 
industrial areas that are also threatened, with a consequent higher 
threat for loss of human life as well as potentially higher costs for 
property damages. Historically, the total cost (borne not only by the 
Federal government but by State and local governments, insurance 
companies, and property owners) of a breached agricultural levee is 
less than that of a breached nonagricultural levee. In certain 
conditions the flood waters will not remain contained in the floodway 
and will inundate some protected areas. The Corps policy thus reflects 
an optimum approach to minimizing overall costs and preventing greater 
amounts of loss of life.

Rehabilitation for Damages Not Caused by a Flood Event

    One commenter took issue with the statement that only damages 
related to floods should be addressed by rehabilitation work. The 
commenter wanted damages caused by use of navigation channels to be 
covered by Public Law 84-99.
    The Corps disagrees with the commenter. Repair of damages not 
related to flood and coastal storm events is beyond the scope of 
assistance authorized by Public Law 84-99. Navigation projects operated 
by the Corps are funded by separate appropriations. Any damages to a 
flood control project related to operation of a navigation project are 
appropriately addressed with navigation funds.

Use of Benefit to Cost Ratios

    One commenter stated that any Active project damaged by a flood or 
coastal storm should not be subject to any benefit to cost ratio.
    The Corps disagrees with the comment. Statutorily, Public Law 84-99 
rehabilitation projects must undergo a benefit to cost assessment. 
Following Congressional intent contained in other Corps authorities for 
a benefit to cost ratio greater than 1.0 for new projects to be 
authorized, it is only logical to extend this approach to Public Law 
84-99 projects so that proper stewardship of funds is exercised.

List of Subjects in 33 CFR Part 203

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

    Dated: March 31, 2003.
Lawrence A. Lang,
Acting Chief, Operations Division, Directorate of Civil Works.

    Accordingly, 33 CFR Part 203 is revised as follows:

PART 203--EMERGENCY EMPLOYMENT OF ARMY AND OTHER RESOURCES, NATURAL 
DISASTER PROCEDURES

Subpart A--Introduction
Sec.
203.11 Purpose.
203.12 Authority.
203.13 Available assistance.
203.14 Responsibilities of non-Federal interests.
203.15 Definitions.
203.16 Federally recognized Indian Tribes and the Alaska Native 
Corporations.
Subpart B--Disaster Preparedness
203.21 Disaster preparedness responsibilities of non-Federal 
interests.
Subpart C--Emergency Operations
203.31 Authority.
203.32 Policy.
Subpart D--Rehabilitation Assistance for Flood Control Works Damaged by 
Flood or Coastal Storm: The Corps Rehabilitation and Inspection Program
203.41 General.
203.42 Inspection of non-Federal Flood Control Works.
203.43 Inspection of Federal Flood Control Works.
203.44 Rehabilitation of non-Federal Flood Control Works.
203.45 Rehabilitation of Federal Flood Control Works.
203.46 Restrictions.
203.47 Modifications to non-Federal Flood Control Works.
203.48 Inspection guidelines for non-Federal Flood Control Works.
203.49 Rehabilitation of Hurricane and Shore Protection Projects.
203.50 Nonstructural alternatives to rehabilitation of Flood Control 
Works.
203.51 Levee owner's manual.
203.52 (Reserved).
Subpart E--Emergency Water Supplies: Contaminated Water Sources and 
Drought Assistance
203.61 Emergency water supplies due to contaminated water sources.
203.62 Drought assistance.
Subpart F--Advance Measures
203.71 Policy.
203.72 Eligibility criteria and procedures.
Subpart G--Local Interests/Cooperation Agreements
203.81 General.
203.82 Requirements of local cooperation.
203.83 Additional requirements.
203.84 Forms of local participation--cost share.
203.85 Rehabilitation of Federal Flood Control Projects.
203.86 Transfer of completed work to local interests.

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

Subpart A--Introduction


Sec.  203.11  Purpose.

    This part prescribes administrative policies, guidance, and 
operating procedures for natural disaster preparedness, response, and 
recovery activities of the United States Army Corps of Engineers.


Sec.  203.12  Authority.

    Section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C. 
701n) (69 Stat. 186), commonly and hereinafter referred to as Public 
Law 84-99, authorizes an emergency fund to be expended at the 
discretion of the Chief of Engineers for: preparation for natural 
disasters; flood fighting and rescue operations; repair or restoration 
of flood control works threatened, damaged, or destroyed by flood, or 
nonstructural alternatives thereto; emergency protection of federally 
authorized hurricane or shore protection projects which are threatened, 
when such protection is warranted to protect against imminent and 
substantial loss to life and property; and repair and restoration of 
federally authorized hurricane or shore protection projects damaged or 
destroyed by wind, wave, or water of other than ordinary nature. The 
law includes provision of emergency supplies of clean water when a 
contaminated source threatens the public health and welfare of a 
locality, and activities necessary to protect life and improved 
property from a threat resulting from a major flood or coastal storm. 
This law authorizes the Secretary of the Army (Secretary) to construct 
wells and to transport water within areas determined by the Secretary 
to be drought-distressed. The Secretary of the Army has delegated the 
authority vested in the Secretary under Public Law 84-99 through the 
Assistant Secretary of the Army (Civil Works) to the Chief of 
Engineers, subject to such further direction as the Secretary may 
provide.

[[Page 19360]]

Sec.  203.13  Available assistance.

    Corps assistance provided under authority of Public Law 84-99 is 
intended to be supplemental to State and local efforts. The principal 
assistance programs and activities of the Corps are described in this 
section.
    (a) Disaster preparedness. Technical assistance for many types of 
disasters is available to State and local interests. Primary Corps 
efforts are focused on technical assistance for, and inspections of, 
flood control works, and related flood fight preparedness and training 
activities. Technical assistance for specialized studies, project 
development, and related activities, and requirements for long term 
assistance, are normally beyond the scope of disaster preparedness 
assistance, and are appropriately addressed by other Corps authorities 
and programs. Subpart B addresses disaster preparedness 
responsibilities and activities.
    (b) Emergency operations. Emergency operations, consisting of Flood 
Response (flood fight and rescue operations) and Post Flood Response 
assistance, may be provided to supplement State and local emergency 
operations efforts. Subpart C of this part addresses emergency 
operations assistance.
    (c) Rehabilitation. The Corps may rehabilitate flood control works 
damaged or destroyed by floods and coastal storms. The Corps 
Rehabilitation and Inspection Program (RIP) incorporates both disaster 
preparedness activities and Rehabilitation Assistance. The RIP consists 
of a process to inspect flood control works; a status determination, 
i.e., an inspection-based determination of qualification for future 
potential Rehabilitation Assistance; and the provision of 
Rehabilitation Assistance to those projects with Active status that are 
damaged in a flood or coastal storm event. Subpart D addresses 
Rehabilitation Assistance and the RIP.
    (d) Emergency water supplies due to contaminated water source. The 
Corps may provide emergency supplies of clean water to any locality 
confronted with a source of contaminated water causing, or likely to 
cause, a substantial threat to the public health and welfare of the 
inhabitants of the locality. Subpart E addresses emergency water supply 
assistance.
    (e) Drought assistance. Corps assistance may be provided to 
drought-distressed areas (as declared by the Secretary of the Army or 
his delegated nominee) to construct wells and to transport water for 
human consumption. Subpart E addresses drought assistance.
    (f) Advance Measures. Advance Measures assistance may be provided 
to protect against imminent threats of predicted, but unusual, floods. 
Advance Measures projects must be justified from an engineering and 
economic standpoint, and must be capable of completion in a timely 
manner. Advance Measures assistance may be provided only to protect 
against loss of life and/or significant damages to improved property 
due to flooding. Subpart F of this part addresses Advance Measures 
assistance.


Sec.  203.14  Responsibilities of non-Federal interests.

    Non-Federal interests, which include State, county and local 
governments; federally recognized Indian Tribes; and Alaska Native 
Corporations, are required to make full use of their own resources 
before Federal assistance can be furnished. The National Guard, as part 
of the State's resources when it is under State control, must be fully 
utilized as part of the non-Federal response. Non-Federal 
responsibilities include the following:
    (a) Disaster preparedness. Disaster preparedness is a basic tenet 
of State and local responsibility. Disaster preparedness 
responsibilities of non-Federal interests include:
    (1) Operation and maintenance of flood control works;
    (2) Procurement and stockpiling of sandbags, pumps, and/or other 
materials or equipment that might be needed during flood situations;
    (3) Training personnel to operate, maintain, and patrol projects 
during crisis situations, and preparation of plans to address emergency 
situations;
    (4) Taking those actions necessary for flood control works to gain 
and maintain an Active status in the Corps Rehabilitation and 
Inspection Program (RIP), as detailed in subpart D of this part; and,
    (5) Responsible regulation, management, and use of floodplain 
areas.
    (b) Emergency operations. During emergency operations, non-Federal 
interests must commit available resources, to include work force, 
supplies, equipment, and funds. Requests for Corps emergency operations 
assistance will be in writing from the appropriate State, tribal, or 
local official. For flood fight direct assistance and Post Flood 
Response assistance, non-Federal interests must furnish formal written 
assurances of local cooperation by entering into Cooperation Agreements 
(CA's), as detailed in subpart G of this regulation. (For Corps work 
authorized under Public Law 84-99, the term ``Cooperation Agreement'' 
is used to differentiate this agreement from a Project Cooperation 
Agreement (PCA) that addresses the original construction of a project.) 
Following Flood Response or Post Flood Response assistance, it is a 
non-Federal responsibility to remove expedient flood control structures 
and similar works installed by the Corps under Public Law 84-99.
    (c) Rehabilitation of non-Federal flood control projects. Prior to 
Corps rehabilitation of non-Federal flood control projects, non-Federal 
interests must furnish formal written assurances of local cooperation 
by entering into a CA, as detailed in subpart G of this part. 
Requirements of local participation include such items as provision of 
lands, easements, rights-of-way, relocations, and suitable borrow and 
dredged or excavated material disposal areas (LERRD's), applicable 
cost-sharing, and costs attributable to deficient and/or deferred 
maintenance.
    (d) Rehabilitation of Federal flood control projects. Sponsors of 
Federal flood control projects are usually not required to furnish 
written assurances of local cooperation, if the PCA for the original 
construction of the project is sufficient. (Note: The PCA may also be 
referred to as a local cooperation agreement (LCA), cooperation and 
participation agreement (C&P), or similar terms.) In lieu of a new PCA, 
the Corps will notify the sponsor of the sponsor's standing 
requirements, including such items as LERRD's, costs attributable to 
deficient or deferred maintenance, removal of temporary works, 
relocations, and any cost-sharing requirements contained in subpart G 
of Sec.  203.82. Modifications to the existing Operation and 
Maintenance Manual may be required based on the Rehabilitation 
Assistance required.
    (e) Emergency water supplies due to contaminated water source. 
Except for federally recognized Indian Tribes or Alaska Native 
Corporations, Non-Federal interests must first seek emergency water 
assistance through the Governor of the affected State. If the State is 
unable to provide the needed assistance, then the Governor or his or 
her authorized representative must request Corps assistance in writing. 
Similarly, requests for Corps assistance for Indian Tribes or Alaska 
Native Corporations must be submitted in writing. A CA (see subpart G 
of this part) is required prior to assistance being rendered. Requests 
for assistance must include information concerning the criteria 
prescribed by subpart E of this part.

[[Page 19361]]

    (f) Drought assistance. Except for federally recognized Indian 
Tribes or Alaska Native Corporations, non-Federal interests must first 
seek emergency drinking water assistance through the Governor of the 
affected State. Requests for Corps assistance will be in writing from 
the Governor or his or her authorized representative. Similarly, 
requests for Corps assistance for Indian Tribes or Alaska Native 
Corporations must be submitted in writing. A CA (see subpart G of this 
part) is required prior to assistance being rendered. Assistance can be 
provided to those drought-distressed areas (as declared by the 
Secretary of the Army) to construct wells and to transport water for 
human consumption. Requests for assistance must include information 
concerning the criteria prescribed by subpart E of this part.
    (g) Advance Measures. Advance Measures assistance should complement 
the maximum non-Federal capability. Requests for assistance must be 
made by the Governor of the affected State, except requests for 
assistance on tribal lands held in trust by the United States, or on 
lands of the Alaska Natives, may be submitted directly by the affected 
Federally recognized Indian Tribe or Alaska Native Corporation, or 
through the regional representative of the Bureau of Indian Affairs, or 
through the Governor of the State in which the lands are located. A CA 
(see subpart G of this part) is required prior to assistance being 
rendered. Non-Federal participation may include either financial 
contribution or commitment of non-Federal physical resources, or both.


Sec.  203.15  Definitions.

    The following definitions are applicable throughout this part:
    Federal Project. A project constructed by the Corps, and 
subsequently turned over to a local sponsor for operations and 
maintenance responsibility. This definition also includes any project 
specifically designated as a Federal project by an Act of Congress.
    Flood Control Project: A project designed and constructed to have 
appreciable and dependable effects in preventing damage from irregular 
and unusual rises in water level. For a multipurpose project, only 
those components that are necessary for the flood control function are 
considered eligible for Rehabilitation Assistance.
    Governor. All references in part 203 to the Governor of a State 
also refer to: the Governors of United States commonwealths, 
territories, and possessions; and the Mayor of Washington, D.C.
    Hurricane/Shore Protection Project (HSPP). A flood control project 
designed and constructed to have appreciable and predictable effects in 
preventing damage to developed areas from the impacts of hurricanes, 
tsunamis, and coastal storms. These effects are primarily to protect 
against wave action, storm surge, wind, and the complicating factors of 
extraordinary high tides. HSPP's include projects known as shore 
protection projects, shore protection structures, periodic nourishment 
projects, shore enhancement projects, and similar terms. Components of 
an HSPP may include both hard (permanent construction) and soft 
(sacrificial, i.e., sand) features.
    Non-Federal Project. A project constructed with non-Federal funds, 
or a project constructed by tribal, State, local, or private interests, 
or a component of such a project. A project constructed under Federal 
emergency disaster authorities, such as Public Law 84-99 or the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, as amended 
(42 U.S.C. 5121, et seq.) (hereinafter referred to as the Stafford 
Act), is a non-Federal project unless it repairs or replaces an 
existing Federal project. Works Progress Administration (WPA) projects, 
and projects funded completely or partially by other (non-Corps) 
Federal agencies, are considered non-Federal projects for the 
application of Public Law 84-99 authority.
    Non-Federal sponsor. A non-Federal sponsor is a public entity that 
is a legally constituted public body with full authority and capability 
to perform the terms of its agreement as the non-Federal partner of the 
Corps for a project, and able to pay damages, if necessary, in the 
event of its failure to perform. A non-Federal sponsor may be a State, 
County, City, Town, Federally recognized Indian Tribe or tribal 
organization, Alaska Native Corporation, or any political subpart of a 
State or group of states that has the legal and financial authority and 
capability to provide the necessary cash contributions and LERRD's 
necessary for the project.
    Repair and rehabilitation. The term ``repair and rehabilitation'' 
means the repair or rebuilding of a flood control structure, after the 
structure has been damaged by a flood, hurricane, or coastal storm, to 
the level of protection provided by the structure prior to the flood, 
hurricane, or coastal storm. ``Repair and rehabilitation'' does not 
include improvements (betterments) to the structure, nor does ``repair 
and rehabilitation'' include any repair or rebuilding of a flood 
control structure that, in the normal course of usage, has become 
structurally unsound and is no longer fit to provide the level of 
protection for which it was designed.


Sec.  203.16  Federally recognized Indian Tribes and the Alaska Native 
Corporations.

    Requests for Public Law 84-99 assistance on tribal lands held in 
trust by the United States, or on lands of the Alaska Natives, may be 
submitted to the Corps directly by the affected federally recognized 
Indian Tribe or Alaska Native Corporation, or through the appropriate 
regional representative of the Bureau of Indian Affairs, or through the 
Governor of the State.

Subpart B--Disaster Preparedness


Sec.  203.21  Disaster preparedness responsibilities of non-Federal 
interests.

    Disaster preparedness is a basic tenet of State and local 
responsibility. Assistance provided under authority of Public Law 84-99 
is intended to be supplemental to the maximum efforts of State and 
local interests. Assistance under Public Law 84-99 will not be provided 
when non-Federal interests have made insufficient efforts to address 
the situation for which assistance is requested. Assistance under 
Public Law 84-99 will not be provided when a request for such 
assistance is based entirely on a lack of fiscal resources with which 
to address the situation. Non-Federal interests' responsibilities are 
addressed in detail as follows:
    (a) Operation and maintenance of flood control works. Flood control 
works must be operated and maintained by non-Federal interests. 
Maintenance includes both short-term activities (normally done on an 
annual cycle, or more frequently) such as vegetation control and 
control of burrowing animals, and longer term activities such as repair 
or replacement of structural components (e.g., culverts) of the 
project.
    (b) Procurement/stockpiling. Procurement and stockpiling of 
sandbags, pumps, and/or other materials or equipment that might be 
needed during flood situations is a non-Federal responsibility. The 
Corps is normally a last resort option for obtaining such materials. 
Local interests should request such materials from State assets prior 
to seeking Corps assistance. Local interests are responsible for 
reimbursing (either in kind or in cash) the Corps for expendable flood 
fight supplies and materials, and returning items such as pumps. When a 
flood is of sufficient magnitude to receive a Stafford Act emergency or 
disaster declaration, then the District Engineer may waive 
reimbursement of expendable supplies.

[[Page 19362]]

    (c) Training and plans. Training personnel to operate, maintain, 
and patrol flood control projects during crisis situations is a non-
Federal responsibility. Specific plans should be developed and in place 
to address known problem areas. For instance, the non-Federal sponsor 
of a levee reach prone to boils should have personnel specifically 
trained in flood fighting boils. In addition, contingency plans must be 
made when needed to address short term situations. For instance, if a 
culvert through a levee is being replaced, then the contingency plan 
should address all actions needed should a flood event occur during the 
construction period when levee integrity is lacking.
    (d) Corps Rehabilitation and Inspection Program for Flood Control 
Works. To be eligible for Rehabilitation Assistance under Public Law 
84-99, it is a non-Federal responsibility to take those actions 
necessary for flood control works to gain and maintain an Active status 
in the Corps Rehabilitation and Inspection Program (RIP), as detailed 
in subpart D of this part.

Subpart C--Emergency Operations


Sec.  203.31  Authority.

    Emergency operations under Public Law 84-99 apply to Flood Response 
and Post Flood Response activities. Flood Response activities include 
flood fighting, rescue operations, and protection of Corps-constructed 
hurricane/shore protection projects. Post Flood Response activities 
include certain limited activities intended to prevent imminent loss of 
life or significant public property, or to protect against significant 
threats to public health and welfare, and are intended to bridge the 
time frame between the occurrence of a disaster and the provision of 
disaster relief efforts under authority of The Stafford Act.
    (a) Flood Response. Flood Response measures are applicable to any 
flood control work where assistance is supplemental to tribal, State, 
and local efforts, except that Corps assistance is not appropriate to 
protect flood control works constructed, previously repaired, and/or 
maintained by other Federal agencies, where such agencies have 
emergency flood fighting authority. Further, Flood Response measures 
(except technical assistance) are not appropriate for flood control 
works protecting strictly agricultural lands. Corps assistance in 
support of other Federal agencies, or State and local interests, may 
include the following: technical advice and assistance; lending of 
flood fight supplies, e.g., sandbags, lumber, polyethylene sheeting, or 
stone; lending of Corps-owned equipment; hiring of equipment and 
operators for flood operations; emergency contracting; and similar 
measures.
    (b) Post Flood Response. The Corps may furnish Post Flood Response 
assistance for a period not to exceed 10 days (the statutory 
limitation) from the date of the Governor's request to the Federal 
Emergency Management Agency for an emergency or disaster declaration 
under authority of the Stafford Act. Requests for Post Flood Response 
assistance must be made by the Governor of the affected State, except 
that requests for assistance on lands held in trust by the United 
States, or on lands of the Alaska Natives, may be submitted directly by 
the affected federally recognized Indian Tribe or Alaska Native 
Corporation, or through the appropriate regional representative of the 
Bureau of Indian Affairs, or through the Governor of the State in which 
the lands are located. Assistance from the Corps may include the 
following: provision of technical advice and assistance; cleaning of 
drainage channels, bridge openings, or structures blocked by debris 
deposited during a flood event, where the immediate threat of flooding 
of or damage to public facilities has not abated; removal of debris 
blockages of critical water supply intakes, sewer outfalls, etc.; 
clearance of the minimum amounts of debris necessary to reopen critical 
transportation routes or public services/facilities; other assistance 
required to prevent imminent loss of life or significant damage to 
public property, or to protect against significant threats to public 
health and welfare. Post Flood Response assistance is supplemental to 
the maximum efforts of non-Federal interests.


Sec.  203.32  Policy.

    Prior to, during, or immediately following flood or coastal storm 
activity, emergency operations may be undertaken to supplement State 
and local activities. Corps assistance is limited to the preservation 
of life and property, i.e., residential/commercial/industrial 
developments, and public facilities/services. Direct assistance to 
individual homeowners, individual property owners, or businesses is not 
permitted. Assistance will be temporary to meet the immediate threat, 
and is not intended to provide permanent solutions. All Corps 
activities will be coordinated with the State Emergency Management 
Agency or equivalent. Reimbursement of State or local emergency costs 
is not authorized. The local assurances required for the provision of 
Corps assistance apply only to the work performed under Public Law 84-
99, and will not prevent State or local governments from receiving 
other Federal assistance for which they are eligible.
    (a) Flood Response. Requests for Corps assistance will be in 
writing from the appropriate requesting official, or his or her 
authorized representative. When time does not permit a written request, 
a verbal request from a responsible tribal, State, or local official 
will be accepted, followed by a written confirmation.
    (1) Corps assistance may include operational control of flood 
response activities, if requested by the responsible tribal, State, or 
local official. However, legal responsibility always remains with the 
tribal, State, and local officials.
    (2) Corps assistance will be terminated when the flood waters 
recede below bankfull, absent a short term threat (e.g., a significant 
storm front expected to arrive within a day or two) likely to cause 
additional flooding.
    (3) Removal of ice jams is a local responsibility. Corps technical 
advice and assistance, as well as assistance with flood fight 
operations, can be provided to supplement State and local efforts. The 
Corps will not perform ice jam blasting operations for local interests.
    (b) Post Flood Response. A written request from the Governor is 
required to receive Corps assistance. Corps assistance will be limited 
to major floods or coastal storm disasters resulting in life 
threatening situations. The Governor's request will include 
verification that the Federal Emergency Management Agency (FEMA) has 
been requested to make an emergency or disaster declaration; a 
statement that the assistance required is beyond the State's 
capability; specific damage locations; and the extent of Corps 
assistance required to supplement State and local efforts. Corps 
assistance is limited to 10 days following receipt of the Governor's 
written request, or on assumption of activities by State and local 
interests, whichever is earlier. After a Governor's request has 
triggered the 10-day period, subsequent request(s) for additional 
assistance resulting from the same flood or coastal storm event will 
not extend the 10-day period, or trigger a new 10-day period. The Corps 
will deny any Governor's request for Post Flood Response if it is 
received subsequent to a Stafford Act Presidential disaster 
declaration, or denial of such a declaration. Shoreline or beach 
erosion damage reduction/prevention actions under Post Flood Response 
will

[[Page 19363]]

normally not be undertaken unless there is an immediate threat to life 
or critical public facilities.
    (c) Loan or issue of supplies and equipment. (1) Issuance of 
Government-owned equipment or materials to non-Federal interests is 
authorized only after local resources have been fully committed.
    (2) Equipment that is lent will be returned to the Corps 
immediately after the flood operation ceases, in a fully maintained 
condition, or with funds to pay for such maintenance. The Corps may 
waive the non-Federal interest's responsibility to pay for or perform 
maintenance if a Stafford Act Presidential emergency or disaster 
declaration has already been made for the affected locality, and the 
waiver is considered feasible and reasonable.
    (3) Expendable supplies that are lent, such as sandbags, will be 
replaced in kind, or paid for by local interests. The Corps may waive 
the local interest's replacement/payment if a Stafford Act Presidential 
disaster declaration has been made for the affected locality, and the 
waiver is considered feasible and reasonable. All unused expendable 
supplies will be returned to the Corps when the operation is 
terminated.

Subpart D--Rehabilitation Assistance for Flood Control Works 
Damaged by Flood or Coastal Storm: The Corps Rehabilitation and 
Inspection Program


Sec.  203.41  General.

    (a) Authority. Public Law 84-99 authorizes repair and restoration 
of the following types of projects to ensure their continued function:
    (1) Flood control projects.
    (2) Federally authorized and constructed hurricane/shore protection 
projects.
    (b) Implementation of authority. The Rehabilitation and Inspection 
Program (RIP) implements Public Law 84-99 authority to repair and 
rehabilitate flood control projects damaged by floods and coastal storm 
events. The RIP consists of a process to inspect flood control work; a 
status determination, i.e., an inspection-based determination of 
qualification for future Rehabilitation Assistance; and the provision 
of Rehabilitation Assistance to those projects with Active status that 
are damaged in a flood or coastal storm event.
    (c) Active status. In order for a flood control work to be eligible 
for Rehabilitation Assistance, it must be in an Active status at the 
time of damage from a flood or coastal storm event. To gain an Active 
status, a non-Federal flood control work must meet certain engineering, 
maintenance, and qualification criteria, as determined by the Corps 
during an Initial Eligibility Inspection (IEI). To retain an Active 
status, Federal and non-Federal flood control works must continue to 
meet inspection criteria set by the Corps, as determined by the Corps 
during a Continuing Eligibility Inspection (CEI). All flood control 
works not in an Active status are considered to be Inactive, regardless 
of whether or not they have previously received a Corps inspection, or 
Corps assistance.
    (d) Modification of flood control projects. Modification of a flood 
control project to increase the level of protection, or to provide 
protection to a larger area, is beyond the scope of Public Law 84-99 
assistance. Such modifications to Federal projects are normally 
accomplished under congressional authorization and appropriation, or 
under Continuing Authorities Programs of the Corps. Such modifications 
to non-Federal projects are normally accomplished by the non-Federal 
sponsor and local interests. Modifications necessary to preserve the 
structural integrity of an existing non-Federal flood control project 
may be funded by the RIP, but such work must meet the criteria 
established in Sec.  203.47 to be eligible for funding under Public Law 
84-99.


Sec.  203.42  Inspection of non-Federal Flood Control Works.

    (a) Required inspections. The Corps will conduct inspections of 
non-Federal flood control works. These inspections are IEI's and CEI's. 
Conduct of IEI's and CEI's will be as provided for in Sec.  203.48.
    (1) Corps involvement with any non-Federal flood control work 
normally begins when the sponsor requests an IEI. The Corps will 
conduct an IEI to determine if the flood control work meets minimum 
engineering and maintenance standards and is capable of providing the 
intended degree of flood protection. An Acceptable or Minimally 
Acceptable rating (see Sec.  203.48) on the IEI is required to allow 
the project to gain an Active status in the RIP.
    (2) CEI's are conducted periodically to ensure that projects Active 
in the RIP continue to meet Corps standards, and to determine if the 
sponsor's maintenance program is adequate. A rating of Acceptable or 
Minimally Acceptable (see Sec.  203.48) on a CEI is required in order 
to retain an Active status in the RIP.
    (b) Advice and reporting. Information on the results of IEI and CEI 
inspections will be furnished in writing to non-Federal sponsors, and 
will be maintained in Corps district offices.
    (1) Non-Federal sponsors will be informed that an IEI rating of 
Unacceptable will cause the flood control work to remain in an Inactive 
status, and ineligible for Rehabilitation Assistance.
    (2) Non-Federal sponsors will be informed that a CEI rating of 
Unacceptable will cause the flood control work to be placed in an 
Inactive status, and ineligible for Rehabilitation Assistance.
    (3) Non-Federal sponsors will be informed that maintenance 
deficiencies found during CEI's may negatively impact on eligibility of 
future Rehabilitation Assistance, and the degree of local cost-sharing 
participation in any proposed work. Follow-up inspections can be made 
by the Corps to monitor progress in correcting deficiencies when 
warranted.


Sec.  203.43  Inspection of Federal Flood Control Works.

    (a) Required inspections. A completed Federal flood control 
project, or completed functional portions thereof, is granted Active 
status in the RIP upon transfer of the operation and maintenance of the 
project (or functional portion thereof) to the non-Federal sponsor. 
Federal flood control works will be periodically inspected in 
accordance with 33 CFR 208.10 and Engineer Regulation (ER) 1130-2-530, 
Flood Control Operations and Maintenance Policies. These periodic 
inspections of Federal flood control works are also, for simplicity, 
known as CEI's. If a Federal project is found to be inadequately 
maintained on a CEI, then it will be placed in an Inactive status in 
the RIP. [Note: This is a separate and distinct action from project 
deauthorization, which is not within the scope of PL 84-99 activities.] 
A Federal project will remain in an Inactive status until such time as 
an adequate maintenance program is restored, and the project is 
determined by the Corps to be adequately maintained.
    (b) Advice and reporting. Information on the results of CEI 
inspections will be furnished in writing to non-Federal sponsors, and 
will be maintained in Corps district offices. Non-Federal sponsors will 
be informed that a CEI rating of Unacceptable will cause the flood 
control work to be placed in an Inactive status, and not eligible for 
Rehabilitation Assistance. Non-Federal sponsors will be informed that 
maintenance deficiencies found during CEI's may negatively impact on 
eligibility of future Rehabilitation Assistance, and the degree of 
local cost-sharing participation in any proposed work. Follow-up 
inspections can be

[[Page 19364]]

made by the Corps to monitor progress in correcting deficiencies when 
warranted.


Sec.  203.44  Rehabilitation of non-Federal Flood Control Works.

    (a) Scope of work. The Corps will provide assistance in the 
rehabilitation of non-Federal projects only when repairs are clearly 
beyond the normal physical and financial capabilities of the project 
sponsor. The urgency of the work required will be considered in 
determining the sponsor's capability.
    (b) Eligibility for Rehabilitation Assistance. A flood control 
project is eligible for Rehabilitation Assistance provided that the 
project is in an Active status at the time of the flood event, the 
damage was caused by the flood event, the work can be economically 
justified, and the work is not otherwise prohibited by this subpart D.
    (c) Work at non-Federal expense. At the earliest opportunity prior 
to commencement of or during authorized rehabilitation work, the Corps 
will inform the project sponsor of any work that must be accomplished 
at non-Federal cost. This includes costs to correct maintenance 
deficiencies, and any modifications that are necessary to preserve the 
integrity of the project.
    (d) Nonconforming works. Any non-Federal project constructed or 
modified without the appropriate local, State, tribal, and/or Federal 
permits, or waivers thereof, will not be rehabilitated under Public Law 
84-99.
    (e) Cooperation Agreements. A Cooperation Agreement is required in 
accordance with subpart G of this part.


Sec.  203.45  Rehabilitation of Federal Flood Control Works.

    Rehabilitation of Federal flood control projects will be identical 
to rehabilitation of non-Federal projects (Sec.  203.44), except for 
those conditions contained in subpart G of this part concerning 
cooperation agreements, when the original PCA for the Federal project 
is sufficient. Additional requirements for Hurricane/Shore Protection 
Projects are covered in Sec.  203.49.


Sec.  203.46  Restrictions.

    (a) Restrictions to flood control works. Flood control works are 
designed and constructed to have appreciable and dependable protection 
in preventing damage from irregular and unusual rises in water levels. 
Structures built primarily for the purposes of channel alignment, 
navigation, recreation, fish and wildlife enhancement, land 
reclamation, habitat restoration, drainage, bank protection, or erosion 
protection are generally ineligible for Public Law 84-99 Rehabilitation 
Assistance.
    (b) Non-flood related rehabilitation. Rehabilitation of flood 
control structures damaged by occurrences other than floods, 
hurricanes, or coastal storms will generally not be provided under 
Public Law 84-99.
    (c) Maintenance and deterioration deficiencies. Rehabilitation 
under Public Law 84-99 will not be provided for either Federal or non-
Federal flood control projects that, as a result of poor maintenance or 
deterioration, require substantial reconstruction. All deficient or 
deferred maintenance existing when flood damage occurs will be 
accomplished by, or at the expense of, the non-Federal sponsor, either 
prior to or concurrently with authorized rehabilitation work. When work 
accomplished by the Corps corrects deferred or deficient maintenance, 
the estimated deferred or deficient maintenance cost will not be 
included as contributed non-Federal funds, and will be in addition to 
cost-sharing requirements addressed in Sec.  203.82. Failure of project 
sponsors to correct deficiencies noted during Continuing Eligibility 
Inspections may result in ineligibility to receive Rehabilitation 
Assistance under Public Law 84-99.
    (d) Economic justification. No flood control work will be 
rehabilitated unless the work required satisfies Corps criteria for a 
favorable benefit-to-cost ratio, and the construction cost of the work 
required exceeds $15,000. Construction costs greater than $15,000 do 
not preclude the Corps from making a determination that the required 
work is a maintenance responsibility of the non-Federal sponsor, and 
not eligible for Corps Rehabilitation Assistance.


Sec.  203.47  Modifications to non-Federal Flood Control Works.

    Modifications necessary to preserve the structural integrity of 
existing non-Federal projects may be constructed at additional Federal 
and non-Federal expense in conjunction with approved rehabilitation 
work. The additional Federal cost will be limited to not more than one-
third of the estimated Federal construction cost of rehabilitation to 
preflood level of protection, or $100,000, whichever is less. The 
modification work must be economically justified. Non-Federal interests 
are required to contribute a minimum of 25% of the total construction 
costs of the modification, LERRD's, and any additional funds necessary 
to support the remaining cost of the modification beyond what the Corps 
can provide. Engineering and design costs will be at Corps cost.
    (a) Cash contributions. Non-Federal contributions will be only in 
cash. In-kind services are not permitted for modification work.
    (b) Protection of additional areas. Modifications designed to 
provide protection to additional area are not authorized.


Sec.  203.48  Inspection guidelines for non-Federal Flood Control 
Works.

    (a) Intent. The intent of these guidelines is to facilitate 
inspections of the design, construction, and maintenance of non-Federal 
flood control works. The guidelines are not intended to establish 
design standards for non-Federal flood control works, but to provide 
uniform procedures within the Corps for conducting required 
inspections. The results of these inspections determine Active status 
in the RIP, and thus determine eligibility for Rehabilitation 
Assistance. The contents of this section are applicable to both IEI's 
and CEI's.
    (b) Level of detail. Evaluations of non-Federal flood control works 
will be made through on site inspections and technical analyses by 
Corps technical personnel. The level of detail required in an 
inspection will be commensurate with the complexity of the inspected 
project, the potential for catastrophic failure to cause significant 
loss of life, the economic benefits of the area protected, and other 
special circumstances that may occur. Technical evaluation procedures 
are intended to establish the general capability of a non-Federal flood 
control work to provide reliable flood protection.
    (c) Purposes. The IEI assesses the integrity and reliability of the 
flood control work. In addition, other essential information required 
to help determine the Federal interest in future repairs/rehabilitation 
to the flood control work will be obtained. The IEI will establish the 
estimated level of protection and structural reliability of the 
existing flood control work. Subsequent CEI's will seek to detect 
changed project conditions that may have an impact on the reliability 
of the flood protection provided by the flood control work, to include 
the level of maintenance being performed on the flood control work.
    (d) Inspection Components. (1) Hydrologic/hydraulic analyses. The 
level of protection provided by a non-Federal flood control work will 
be evaluated and expressed in terms of exceedence frequency (e.g., a 
20% chance of a levee being overtopped in

[[Page 19365]]

any given year). These analyses also include an evaluation of existing 
or needed erosion control features for portions of a project that may 
be threatened by stream flows, overland flows, or wind generated waves.
    (2) Geotechnical analyses. The Geotechnical evaluation will be 
based primarily on a detailed visual inspection. As a minimum, for 
levees, the IEI will identify critical sections where levee stability 
appears weakest and will document the location, reach, and cross-
section at these points.
    (3) Maintenance. Project maintenance analysis will evaluate the 
maintenance performance of the non-Federal sponsor, and deficiencies of 
the project. This evaluation should reflect the level of maintenance 
needed to assure the intended degree of flood protection, and assess 
the performance of recent maintenance on the project. The effects of 
structures on, over, or under the flood control work, such as buried 
fiber optic cables, gas pipelines, etc., will be evaluated for impact 
on the stability of the structure.
    (4) Other Structural Features. Other features that may be present, 
such as pump stations, culverts, closure structures, etc., will be 
evaluated.
    (e) Ratings. Inspected flood control works will receive a rating in 
accordance with the table below. The table below provides the general 
assessment parameters used in assigning a rating to the inspected flood 
control work.

------------------------------------------------------------------------
              Rating                             Assessment
------------------------------------------------------------------------
A--Acceptable.....................  No immediate work required, other
                                     than routine maintenance. The flood
                                     control project will function as
                                     designed and intended, and
                                     necessary cyclic maintenance is
                                     being adequately performed.
M--Minimally Acceptable...........  One or more deficient conditions
                                     exist in the flood control project
                                     that need to be improved/corrected.
                                     However, the project will
                                     essentially function as designed
                                     and intended.
U--Unacceptable...................  One or more deficient conditions
                                     exist which can reasonably be
                                     foreseen to prevent the project
                                     from functioning as designed,
                                     intended, or required.
------------------------------------------------------------------------

    (f) Sponsor reclama. If the results of a Corps evaluation are not 
acceptable to the project sponsor, the sponsor may choose, at its own 
expense, to provide a detailed engineering study, preferably certified 
by a qualified Professional Engineer, as a reclama to attempt to change 
the Corps evaluation.


Sec.  203.49  Rehabilitation of Hurricane and Shore Protection 
Projects.

    (a) Authority. The Chief of Engineers is authorized to rehabilitate 
any Federally authorized hurricane or shore protection structure 
damaged or destroyed by wind, wave, or water action of an other than 
ordinary nature when, in the discretion of the Chief of Engineers, such 
rehabilitation is warranted for the adequate functioning of the 
project.
    (b) Policies. (1) Rehabilitation of HSPP's is limited to the 
repair/restoration of the HSPP to a pre-storm condition that allows for 
the adequate functioning of the project, provided that the damage was 
caused by an extraordinary storm.
    (2) To be eligible for Rehabilitation Assistance, HSPP's must be:
    (i) A completed element of a Federally authorized project; or,
    (ii) A portion of a Federally authorized project constructed by 
non-Federal interests when approval of such construction was obtained 
from the Commander, Headquarters, U.S. Army Corps of Engineers 
(HQUSACE), or his designated representative; or,
    (iii) A portion of a Federally authorized project constructed by 
non-Federal interests and designated by an Act of Congress as a Federal 
project; and
    (3) Rehabilitation Assistance for sacrificial features will be 
limited to that necessary to reduce the immediate threat to life and 
property, or restoration to pre-storm conditions, whichever is less.
    (4) To be eligible for rehabilitation, the sacrificial features of 
an HSPP must be substantially eroded by wind, wave, or water action of 
an other than ordinary nature. The determination of whether a storm 
qualifies as extraordinary will be made by the Director of Civil Works, 
and may be delegated to the Chief, Operations Division, Directorate of 
Civil Works.
    (5) Rehabilitation will not be provided for uncompleted HSPP's. An 
HSPP (or separable portion thereof) is considered completed when 
transferred to the non-Federal sponsor for operation and maintenance.
    (6) Definition of extraordinary storm. An extraordinary storm is a 
storm that, due to prolongation or severity, creates weather conditions 
that cause significant amounts of damage to a Hurricane/Shore 
Protection Project. ``Prolongation or severity'' means a Category 3 or 
higher hurricane as measured on the Saffir-Simpson scale, or a storm 
that has an exceedance frequency equal to or greater than the design 
storm of the project. ``Significant amounts of damage'' have occurred 
when:
    (i) The cost of the construction effort to effect repair of the 
HSPP or separable element thereof (exclusive of dredge mobilization and 
demobilization costs) exceeds $1 million and is greater than two 
percent of the original construction cost (expressed in current day 
dollars) of the HSPP or separable element thereof; or,
    (ii) The cost of the construction effort to effect repair of the 
HSPP or separable element thereof (exclusive of dredge mobilization and 
demobilization costs) exceeds $6 million; or,
    (iii) More than one-third of the planned or historically placed 
sand for renourishment efforts for the HSPP (or separable element 
thereof) is lost.
    (c) Procedural requirements. Rehabilitation of HSPP'S will be done 
in accordance with Sec.  203.45, except as modified by this section.
    (d) Combined Rehabilitation and Periodic Nourishment. In some 
cases, the non-Federal sponsor may wish to fully restore the 
sacrificial features of a project where only a partial restoration is 
justifiable as Rehabilitation Assistance. In these cases, a cost 
allocation between Rehabilitation Assistance and periodic nourishment 
under the terms of the project PCA will be determined by the Director 
of Civil Works.


Sec.  203.50  Nonstructural alternatives to rehabilitation of Flood 
Control Works.

    (a) Authority. Under Public Law 84-99, the Chief of Engineers is 
authorized, when requested by the non-Federal sponsor, to implement 
nonstructural alternatives (NSA's) to the rehabilitation, repair, or 
restoration of flood control works damaged by floods or coastal storms.
    (b) Policy. (1) The option of implementing an NSA project (NSAP) in 
lieu of a structural repair or restoration is available only to non-
Federal sponsors of flood control works eligible for Rehabilitation 
Assistance in

[[Page 19366]]

accordance with this regulation, and only upon the request of such non-
Federal sponsors.
    (2) A sponsor is required for implementation of an NSAP. The NSAP 
sponsor must be either a non-Federal sponsor as defined in Sec.  
203.15, or another Federal agency. The NSAP sponsor must demonstrate 
that it has the legal authority and financial capability to provide for 
the required items of local cooperation.
    (3) The Corps shall not be responsible for the operation, 
maintenance, or management of any NSAP implemented in accordance with 
this section.
    (4) The Corps may, in its sole discretion, reject any request for 
an NSA that would:
    (i) Lead to significantly increased flood protection expenses or 
flood fighting expenses for public agencies, flood control works 
sponsors, public utilities, or the Federal Government; or,
    (ii) Threaten or have a significant adverse impact on the 
integrity, stability, or level of protection of adjacent or nearby 
flood control works; or,
    (iii) Lead to increased risk of loss of life or property during 
flood events.
    (5) The principal purposes of an NSAP are for:
    (i) Floodplain restoration;
    (ii) Provision or restoration of floodways; and,


    Note to paragraphs (b)(5)(i) and (ii): Habitat restoration is 
recognized as being a significant benefit that can be achieved with 
an NSAP, and may be a significant component of an NSAP, but is not 
considered to be a principal purpose under PL 84-99 authority.


    (iii) Reduction of future flood damages and associated flood 
control works repair costs.
    (c) Limitation on Corps Expenditures. Exclusive of the costs of 
investigation, report preparation, engineering and design work, and 
related costs, Corps expenditures for implementation of an NSAP are 
limited to the lesser of the Federal share of rehabilitation 
construction costs of the project were the flood control work to be 
structurally rehabilitated in accordance with subpart D of this part, 
or the Federal share of computed benefits which would be derived from 
such structural rehabilitation. This limitation on Corps expenditures 
may be waived by the Director of Civil Works or the Chief, Operations 
Division, Directorate of Civil Works when compelling reasons exist.
    (d) Responsibilities of the NSAP non-Federal sponsor:
    (1) Operate and maintain the NSAP;
    (2) Provide, or arrange for and obtain, all funding required to 
implement the NSAP in excess of the limitation established in paragraph 
(c) of this section.
    (3) Accept the transfer of ownership of any lands or interests in 
lands acquired by the Corps and determined by the Corps to be necessary 
to implement the NSAP.
    (e) Responsibilities of other Federal agencies acting as NSAP 
sponsor. The Corps may participate with one or more Federal agencies in 
NSAP's. If the Corps is the lead Federal agency, based on mutual 
agreement of the Federal agencies, then a non-Federal NSAP sponsor is 
required. (See paragraph (d) of this section.) If another Federal 
agency is the lead Federal agency, then Corps participation in the NSAP 
will be based on the content of this section, with appropriate 
allowances for effecting an NSAP in accordance with the authority and 
ultimate goal of the lead Federal agency. In such cases, a Memorandum 
of Agreement between the Corps and the lead Federal agency is required, 
in accordance with paragraph (1) of this section.
    (f) Responsibilities of the requesting flood control work project 
sponsor. (1) The flood control work project sponsor must request the 
Corps undertake an NSA project in lieu of rehabilitation of the flood 
control work, in accordance with the sponsor's applicable laws, 
ordinances, rules, and regulations.
    (2) If not also the NSAP sponsor, the flood control work project 
sponsor must:
    (i) Divest itself of responsibility to operate and maintain the 
flood control work involved in the NSAP; and
    (ii) Provide to the NSAP sponsor such lands or interests in lands 
as it may have which the Corps determines are necessary to implement 
the NSAP.
    (g) Allowable Public Law 84-99 expenses for NSAP's. (1) Acquisition 
of land or interests in land.
    (2) Removal of structures, including manufactured homes, for 
salvage and/or reuse purposes.
    (3) Demolition and removal of structures, including utility 
connections and related items.
    (4) Debris removal and debris reduction.
    (5) Removal, protection, and/or relocation of highways, roads, 
utilities, cemeteries, and railroads.
    (6) Construction to promote, enhance, control, or modify water 
flows into, out of, through, or around the nonstructural project area.
    (7) Nonstructural habitat restoration, to include select planting 
of native and desirable plant species, native species nesting site 
enhancements, etc.
    (8) Total or partial removal or razing of existing reaches of 
levee, to include removal of bank protection features and/or riprap.
    (9) Protection/floodproofing of essential structures and 
facilities.
    (10) Supervision, administrative, and contract administration costs 
of other expenses allowed in this subparagraph.
    (h) Time limitation. Corps participation in development and 
implementation of an NSAP may cease, at the sole discretion of the 
Corps, one year after the date of approval of rehabilitation of the 
damaged flood control work or the date of receipt of the flood control 
work public sponsor's request for an NSAP, whichever is earlier, if 
insufficient progress is being made to develop and implement the NSAP 
for reasons beyond the control of the Corps. In such circumstances, the 
Corps may, at its sole discretion, determine that Rehabilitation 
Assistance for the damaged flood control project may also be denied.
    (i) Participation and involvement of other Federal, State, tribal, 
local, and private agencies. Nothing in this section shall be construed 
to limit the participation of other Federal, State, tribal, local, and 
private agencies in the development, implementation, or future 
operations and maintenance of an NSAP under this section, subject to 
the limitations of such participating agency's authorities and 
regulations.
    (j) Future assistance. After transfer of NSAP operation and 
maintenance responsibility to the NSAP sponsor or the lead Federal 
agency, flood-related assistance pursuant to Public Law 84-99 will not 
be provided anywhere within the formerly protected area of the flood 
control work, except for rescue operations provided in accordance with 
Sec.  203.13(b). As an exception, on a case-by-case basis, certain 
structural flood control works (or elements thereof) repaired or set 
back as part of the implementation of an NSAP having a non-Federal 
sponsor may be considered for future flood-related assistance.
    (k) Environmental considerations. NSAP's are subject to the same 
environmental requirements, restrictions, and limitations as are 
structural rehabilitation projects.
    (l) Requirements for Cooperation Agreement (CA)/Items of Local 
Cooperation. (1) Requirement for Local Cooperation. In order to clearly 
define the obligations of the Corps and of non-Federal interests, a CA 
with the NSAP non-Federal sponsor is required. Requirements are 
addressed in paragraphs (l)(2) through (10) of this section. When 
another Federal agency is the lead Federal agency, a Memorandum

[[Page 19367]]

of Agreement (MOA) between the Corps and that agency is required. 
Wording of MOA's will be similar to, and consistent with, requirements 
detailed in paragraphs (l)(2) through (10) of this section for CA's, 
with appropriate modifications based on the other Federal agencies' 
authorized expenditures and programs.
    (2) The CA requirements of subpart G of this part are not 
applicable to NSAP's.
    (3) Items of Local Cooperation. For NSAP's, non-Federal interests 
shall:
    (i) Provide without cost to the United States all borrow sites and 
dredged or excavated material disposal areas necessary for the project;
    (ii) Hold and save the United States free from damages due to the 
project, except for damages due to the fault or negligence of the 
United States or its contractor; and
    (iii) Maintain and operate the project after completion in a manner 
satisfactory to the Chief of Engineers.
    (4) Cost sharing. The Corps may assume up to 100 percent of the 
costs of implementing an NSAP, subject to the limitations set forth in 
paragraph (c) of this section.
    (5) Eligibility under other Federal programs. NSAP CA's shall not 
prohibit non-Federal interests from accepting funding from other 
Federal agencies, so long as the provision of such other Federal agency 
funding is not prohibited by statute.
    (6) Contributed funds. Contributed funds may be accepted without 
further approval by the Chief of Engineers upon execution of the CA by 
all parties. The required certificate of the district commander will 
cite 33 U.S.C. 701h as the pertinent authority.
    (7) Obligation of contributed funds. In accordance with OMB 
Circular A-34, all contributed funds must be received in cash and 
deposited with the Treasury before any obligations can be made against 
such funds.
    (8) Prohibition of future assistance. The prohibition of future 
assistance described in paragraph (j) of this section must be included 
in the NSAP CA.
    (9) Assurance of compliance with Executive Order 11988. NSAP CA's 
shall include acknowledgment of, and a statement of planned adherence 
to, Executive Order 11988, Floodplain Management, 3 CFR 117 (1977 
Compilation), or as it may be revised in the future, by the NSAP 
sponsor.
    (10) The CA must include a statement of legal restrictions placed 
on formerly protected lands that would preclude future use and/or 
development of such lands in a fashion incompatible with the purposes 
of the NSAP.
    (m) Acquisition of LERRD's. (1) For the acquisition of LERRD's, 
reimbursement may be made to the non-Federal sponsor of an NSAP. Such 
reimbursements are subject to the normal Corps land acquisition 
process, funding caps set forth in (c) of this section, and 
availability of appropriations.
    (2) For the acquisition of LERRD's, Corps funding may be combined 
with the funding of other Federal agencies, absent specific statutory 
language or principle prohibiting such combinations, under the terms of 
the MOA with other Federal agencies.


Sec.  203.51  Levee owner's manual.

    (a) Authority. In accordance with section 202(f) of Public Law 104-
303, the Corps will provide a levee owner's manual to the non-Federal 
sponsor of all flood control works in an Active status in the RIP.
    (b) Policies. (1) Active non-Federal projects. A levee owner's 
manual developed and distributed by the Corps will be provided to all 
sponsors of Active non-Federal projects. The levee owner's manual will 
include the standards that must be met to maintain an Active status in 
the Rehabilitation and Inspection Program. Levee owner's manuals will 
also be provided, upon request, to sponsors of Inactive non-Federal 
projects so that the sponsors may evaluate their projects and prepare 
for an IEI to gain an Active status in the RIP.
    (2) Federal projects. The Operation and Maintenance Manual 
specified by 33 CFR 208.10(a)(10) will fulfill the requirement of 
providing a levee owner's manual if the Corps has not provided a 
separate levee owner's manual to the sponsor of a Federal project.
    (c) Procedural requirements. Levee Owner's Manuals will be 
initially provided to non-Federal sponsors of Active flood control 
works during scheduled CEI's and IEI's. Sponsors of Inactive projects 
and private levee owners will be provided manuals upon written request 
to the responsible Corps district.


Sec.  203.52  [Reserved]

Subpart E--Emergency Water Supplies: Contaminated Water Sources and 
Drought Assistance


Sec.  203.61  Emergency water supplies due to contaminated water 
source.

    (a) Authority. The Chief of Engineers is authorized to provide 
emergency supplies of clean water to any locality confronted with a 
source of contaminated water causing, or likely to cause, a substantial 
threat to the public health and welfare of the inhabitants of the 
locality.
    (b) Policies. (1) Any locality faced with a threat to public health 
and welfare from a contaminated source of drinking water is eligible 
for assistance.
    (2) Eligibility for assistance will be based on one or more of the 
following factors:
    (i) The maximum contaminant level or treatment technique for a 
contaminant, as established by the Environmental Protection Agency 
pursuant to the Safe Drinking Water Act (see 40 CFR 141), is exceeded.
    (ii) The water supply has been identified as a source of illness by 
a tribal, State, or Federal public health official. The specific 
contaminant does not have to be identified.
    (iii) An emergency (e.g., a flood or chemical spill) has occurred 
that has resulted in either: one or more contaminants entering the 
source on a sufficient scale to endanger health; or, the emergency has 
made inoperable the equipment necessary to remove known contaminants.
    (iv) The presence of a contaminant is indicated on the basis of 
other information available.
    (3) Corps assistance will be directed toward the provision of the 
minimum amount of water required to maintain the health and welfare 
requirements of the affected population. The quantity of water and the 
means of distribution will be at the discretion of the responsible 
Corps official, who will consider the needs of the individual 
situation, the needs of the affected community, and the cost 
effectiveness of providing water by various methods.
    (4) If a locality has multiple sources of water, assistance will be 
furnished only to the extent that the remaining sources, with 
reasonable conservation measures, cannot provide adequate supplies of 
drinking water.
    (5) Loss of water supply is not a basis for assistance under this 
authority.
    (6) Water will not be furnished for commercial processes, except as 
incidental to the use of existing distribution systems. This does not 
prohibit the furnishing of water for drinking by employees and on-site 
customers. Water for preparing retail meals and similar personal needs 
may be provided to the extent it would be furnished to individuals.
    (7) The permanent restoration of a safe supply of drinking water is 
the responsibility of local interests.
    (8) Corps assistance is limited to 30 days, and requires the local 
interests to provide assurances of cooperation in a CA. (See subpart G 
of this part.)

[[Page 19368]]

Extension of this 30-day period requires agreement (as an amendment to 
the previously signed CA) between the State and the Corps. This 
agreement must cover specified services and responsibilities of each 
party, and provision of a firm schedule for local interests to provide 
normal supplies of water.
    (9) State, tribal, and local governments must make full use of 
their own resources, including National Guard capabilities.
    (c) Governor's request. A letter signed by the Governor, or his or 
her authorized representative, requesting Corps assistance and 
addressing the State's commitments and capabilities in response to the 
emergency situation, is required. All requests should identify the 
following information:
    (1) Describe the local and State efforts undertaken. Verify that 
all reasonably available resources have been committed.
    (2) Identify the specific needs of the State, and the required 
Corps assistance.
    (3) Identify additional commitments to be accomplished by the 
State.
    (4) Identify the project sponsor(s).
    (d) Non-Federal responsibilities. Non-Federal interests are 
responsible for restoration of the routine supply of clean drinking 
water, including correcting any situations that cause contamination. If 
assistance is furnished by the Corps, local interests must furnish the 
basic requirements of local cooperation as detailed in the Cooperation 
Agreement. In all cases, reasonable water conservation measures must be 
implemented. Local interests will be required to operate and maintain 
any loaned equipment, and to remove and return such equipment to 
Federal interests, in a fully maintained condition, after the situation 
is resolved.


Sec.  203.62  Drought assistance.

    (a) Authority. The Chief of Engineers, acting for the Secretary of 
the Army, has the authority under certain statutory conditions to 
construct wells for farmers, ranchers, political subdivisions, and to 
transport water to political subdivisions, within areas determined to 
be drought-distressed.
    (b) General policy. (1) It is a non-Federal responsibility for 
providing an adequate supply of water to local inhabitants. Corps 
assistance to provide emergency water supplies will only be considered 
when non-Federal interests have exhausted reasonable means for securing 
necessary water supplies, including assistance and support from other 
Federal agencies.
    (2) Before Corps assistance is considered under this authority, the 
applicability of other Federal assistance authorities must be 
evaluated. If these programs cannot provide the needed assistance, then 
maximum coordination should be made with appropriate agencies in 
implementing Corps assistance.
    (c) Governor's request. A letter signed by the Governor, requesting 
Corps assistance and addressing the State's commitments and 
capabilities with response to the emergency situation, is required. All 
requests should identify the following information:
    (1) A description of local and State efforts undertaken. A 
verification that all available resources have been committed, to 
include National Guard assets.
    (2) Identification of the specific needs of the State, and the 
required Corps assistance.
    (3) Identification of the additional commitments to be accomplished 
by the State.
    (4) Identification of the project sponsor(s).
    (d) Definitions applicable to this section:
    (1) Construction. This term includes initial construction, 
reconstruction, or repair.
    (2) Drought-distressed area. An area that the Secretary of the Army 
determines, due to drought conditions, has an inadequate water supply 
that is causing, or is likely to cause, a substantial threat to the 
health and welfare of the inhabitants of the impacted area, including 
the threat of damage or loss of property.
    (3) Eligible applicant. Any rancher, farmer or political 
subdivision within a designated drought-distressed area that is 
experiencing an inadequate supply of water due to drought.
    (4) Farmer or rancher. An individual who realizes at least one-
third of his or her gross annual income from agricultural sources, and 
is recognized in the community as a farmer or rancher. A farming 
partnership, corporation, or similar entity engaged in farming or 
ranching, which receives its majority income from such activity, is 
also considered to be a farmer or rancher, and thus an eligible 
applicant.
    (5) Political subdivision. A city, town, borough, county, parish, 
district, association, or other public body created by, or pursuant to, 
Federal or State law, having jurisdiction over the water supply of such 
public body.
    (6) Reasonable cost. In connection with the Corps construction of a 
well, means the lesser of:
    (i) The cost of the Chief of Engineers to construct a well in 
accordance with these regulations, exclusive of:
    (A) The cost of transporting equipment used in the construction of 
wells; and
    (B) The cost of investigation and report preparation to determine 
the suitability to construct a well; or
    (ii) The cost to a private business of constructing such a well.
    (7) State. Any State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, Northern Marianas Islands, 
American Samoa, and the Trust Territory of the Pacific Islands.
    (d) Guidance--construction of wells. (1) Assistance to an eligible 
applicant for the construction of a well may be provided on a cost-
reimbursable basis if:
    (i) It is in response to a written request by a farmer, rancher, or 
political subdivision for construction of a well under Public Law 84-
99.
    (ii) The applicant is located within an area that the Secretary of 
the Army has determined to be drought-distressed.
    (iii) The Secretary of the Army has made a determination that:
    (A) The applicant, as a result of the drought, has an inadequate 
supply of water.
    (B) An adequate supply of water can be made available to the 
applicant through the construction of a well.
    (C) As a result of the drought, a private business could not 
construct the well within a reasonable time.
    (iv) The applicant has secured the necessary funding for well 
construction from commercial or other sources, or has entered into a 
contract to pay to the United States the reasonable cost of such 
construction with interest over a period of years, not to exceed 30, as 
the Secretary of the Army deems appropriate.
    (v) The applicant has obtained all necessary Federal, State and 
local permits.
    (2) The financing of the cost of construction of a well by the 
Corps under this authority should be secured by the project applicant.
    (3) The project applicant will provide the necessary assurances of 
local cooperation by signing a Cooperation Agreement (subpart G of this 
part) prior to the start of Corps work under this authority.
    (4) Equipment owned by the United States will be utilized to the 
maximum extent possible in exercising the authority to drill wells, but 
can only be used when commercial firms cannot provide comparable 
service within the time needed to prevent the applicant from suffering 
significantly increased hardships from the effects of an inadequate 
water supply.
    (e) Guidance-transport of water. (1) Assistance to an applicant in 
the

[[Page 19369]]

transportation of water may be provided if:
    (i) It is in response to a written request by a political 
subdivision for transportation of water.
    (ii) The applicant is located within an area that the Secretary of 
the Army has determined to be drought-distressed.
    (iii) The Secretary of the Army has made a determination that, as a 
result of the drought, the applicant has an inadequate supply of water 
for human consumption, and the applicant cannot obtain water.
    (2) Transportation of water by vehicles, small diameter pipe line, 
or other means will be at 100 percent Federal cost.
    (3) Corps assistance in the transportation of emergency water 
supplies will be provided only in connection with water needed for 
human consumption. Assistance will not be provided in connection with 
water needed for irrigation, recreation, or other non-life supporting 
purposes, or livestock consumption.
    (4) Corps assistance will not include the purchase of water, nor 
the cost of loading or discharging the water into or from any 
Government conveyance, to include Government-leased conveyance.
    (5) Equipment owned by the United States will be utilized to the 
maximum extent possible in exercising the authority to transport water, 
consistent with lowest total Federal cost.
    (f) Request for assistance. A written request must be made to the 
district commander with Civil Works responsibility for the affected 
area. Upon receipt of a written request, the appropriate State and 
Federal agencies will be notified, and coordination will continue as 
appropriate throughout the assistance.

Subpart F--Advance Measures


Sec.  203.71  Policy.

    Advance Measures consists of those activities performed prior to a 
flood event, or potential flood event, to protect against loss of life 
and/or significant damages to improved property from flooding. 
Emergency work under this authority will be considered when requested 
by the Governor of a State confronted with an imminent threat of 
unusual flooding. Corps assistance will be to complement the maximum 
efforts of tribal, State, and local authorities. Projects will be 
designed for the specific threat, normally of expedient-type 
construction, and typically temporary in nature.


Sec.  203.72  Eligibility criteria and procedures.

    (a) Threat of flooding. An imminent threat of unusual flooding must 
exist before Advance Measures projects can be approved. The threat may 
be established by National Weather Service predictions, or by Corps of 
Engineers determinations of unusual flooding from adverse or unusual 
conditions. The threat must be clearly defined to the extent that it is 
readily apparent that damages will be incurred if preventive action is 
not taken immediately.
    (b) Governor's request. A letter signed by the Governor, requesting 
Corps assistance and addressing the State's commitments and 
capabilities with response to the emergency situation, is required. All 
requests should identify the following information:
    (1) Describe the non-Federal efforts undertaken. Verify that all 
available resources have been committed.
    (2) Identify the specific needs, and the required Corps assistance.
    (3) Identify additional commitments to be accomplished by the non-
Federal interests.
    (4) Identify the non-Federal sponsor(s).
    (c) Feasibility. The proposed work should be temporary in nature, 
technically feasible, designed to deal effectively and efficiently with 
the specific threat, and capable of construction in time to prevent 
anticipated damages.
    (d) Economic justification. All work undertaken under this category 
must have a favorable benefit-to-cost ratio, under Corps of Engineers 
economic guidelines.
    (e) Local cooperation/responsibilities. Subpart G of this part 
provides requirements for a Cooperation Agreement needed to provide 
local assurances. The project sponsor must remove temporary works 
constructed by the Corps when the operation is over, at no cost to the 
Corps.
    (f) Contingency planning efforts for potential Advance Measures 
activities. Occasionally weather phenomena occur which produce a much 
higher than normal probability or threat of flooding which may be 
predicted several months in advance of occurrence or significant 
impact. Impacts on specific locations may be unpredictable, but 
regional impacts may have a high likelihood of occurrence. In such 
situations, the Corps may provide technical and contingency planning 
assistance to tribal, State, and local agencies, commensurate with the 
predicted weather phenomenon, based on requests for assistance from 
such tribal, State, and local agencies. Specific Advance Measures 
projects must be addressed as specified in paragraph (b) of this 
section.
    (g) Definitions.
    (1) Imminent threat. A subjective statistical evaluation of how 
quickly a threat scenario can develop, and how likely that threat is to 
develop in a given geographical location. Implicit in the timing aspect 
can be considerations of available time (when the next flood or storm 
event is likely to occur), season (e.g., a snowpack that will melt in 
the coming spring runoff), or of known cyclical activities.
    (2) Unusual flooding. A subjective determination that considers 
potential ability to approach an area's flood of record, a catastrophic 
level of flooding, or a greater than 50-year level of flooding.

Subpart G--Local Interests/Cooperation Agreements


Sec.  203.81  General.

    (a) Requirements for Cooperation Agreements. In order to maintain a 
firm understanding between the Corps and non-Federal interests 
concerning the responsibilities of each party in responding to or 
recovering from a natural disaster, division or district commanders 
shall negotiate a cooperation agreement (CA) with a non-Federal sponsor 
whenever assistance (other than short term technical assistance) is 
furnished. CA's do not require approval by HQUSACE unless they contain 
special or unusual conditions. For assistance to other than a public 
entity, a public agency is required to be the non-Federal sponsor, co-
sign the agreement, and be responsible, from the Corps perspective, for 
accomplishment of all work and conditions required in the CA. Project 
sponsors must meet the definition contained in Sec.  203.15.
    (b) Request for assistance. (1) For urgent situations involving 
Flood Response activities, division/district commanders may respond to 
oral requests from responsible representatives of local interests. 
However, all oral requests must be confirmed in writing. Assistance can 
be furnished before the written statement is received.
    (2) Before furnishing assistance (other than short term technical 
assistance) under Advance Measures, or under Emergency Water Supplies, 
the district/division commander must receive a request, signed by the 
Governor (or the Governor's representative for Emergency Water 
assistance due to a contaminated source), identifying the problem, 
verifying that all available State and

[[Page 19370]]

local resources have been committed, and requesting Federal assistance.


Sec.  203.82  Requirements of local cooperation.

    It is Corps policy that provision of assistance under Public Law 
84-99 will, insofar as feasible, require local interests to: provide 
without cost to the United States all LERRD's necessary for the 
authorized work; hold and save the United States free from damages due 
to the authorized work, exclusive of damages due to the fault or 
negligence of the United States or its contractor; maintain and 
operate, in a manner satisfactory to the Chief of Engineers, all the 
works after completion. When assistance includes the construction of 
temporary protective works, the maintain and operate clause is modified 
by adding (or substituting, as applicable) the requirement for local 
interests to remove any temporary works constructed by the Corps under 
Public Law 84-99. If any permanent works are constructed, then the 
sponsor is required to operate and maintain the project in accordance 
with requirements determined by the Corps.
    (a) Furnishing of LERRD's. This item provides for sites of 
structures, for borrow and disposal areas, and for access. It also 
provides for all other rights in, upon, through, or over private 
property as needed by the United States in connection with the 
authorized work. Performance by the local interests under their 
assurance to furnish LERRD's will normally not be considered a 
contribution. If more advantageous to the Federal Government, borrow 
and disposal areas may be assumed as a Federal responsibility. 
Easements must be provided for future Federal inspection of maintenance 
or removal. If a public agency sponsors a project for a non-public 
applicant, the applicant must provide an easement to the sponsor for 
future maintenance or removal, as well as for Federal inspection. 
Easements should extend to the life of the project.
    (b) Hold and save clause. This clause serves as legal protection of 
the government. Where property concerned is under tenancy, both the 
property owner and the tenant should acknowledge the non-Federal 
sponsor's signed CA.
    (c) Maintain and operate clause. This item is intended to protect 
the investment of government resources and provide proper stewardship 
of resources entrusted to the Corps. This clause must include: ``It is 
understood that the foregoing maintenance and operation requirement 
extends to interrelated features of all protective work under the 
control of (insert name of sponsor, and owner if appropriate).''
    (d) Removal of temporary works. Local interests are responsible for 
the removal of all temporary works constructed by the Corps, which are 
unsuitable for upgrade to permanent structures. Structures may be 
deemed unsuitable due to inherent health, access, or safety problems 
that could result from their location. The wording of this clause must 
not preclude the use of other Federal assistance programs to fund 
removal.
    (e) Request for retention of temporary flood control works. Local 
interests may ask to retain a temporary structure for protection from 
future floods. This will not be approved by the Corps unless the works 
are upgraded to meet all Corps criteria for permanent projects. Public 
Law 84-99 funds will not be used to upgrade the structure. An upgraded 
project must comply with permitting, environmental, and other 
regulatory and legal requirements. Unless upgraded, such projects are 
not eligible for rehabilitation, and must be removed in accordance with 
paragraph (d) of this section. Unless upgraded, temporary projects 
which are not removed by the local sponsor will cause all projects with 
the same sponsor to lose eligibility for Public Law 84-99 assistance. 
Local interests must initiate action to upgrade or remove the temporary 
works within 30 days after the flood threat has passed.
    (f) Cost sharing. (1) The Federal Government may assume up to 80 
percent of the eligible construction costs for rehabilitation of non-
Federal flood control projects, and up to 100 percent of the eligible 
construction costs for rehabilitation of Federal flood control 
projects. The Federal Government may assume up to 100 percent of the 
eligible construction costs for rehabilitation of HSPP's. Sponsors will 
provide their share of costs as provided for in Sec.  203.84. The 
sponsor's share is in addition to providing costs for LERRD's, and any 
costs for correction of any deferred/deficient maintenance. The Corps 
will determine the dollar value of any in-kind services provided by the 
local sponsor.
    (2) For those unusual occasions where permanent construction (vice 
the temporary standard) for Advance Measures projects is employed, the 
local sponsor will normally be required to provide 25 percent of the 
project cost, in addition to LERRD's.


Sec.  203.83  Additional requirements.

    (a) Maintenance deficiencies. Rehabilitation, Emergency Water, Post 
Flood Response, and Advance Measures authorities may not be used to 
correct deferred or deficient maintenance. Such correction must be 
accomplished by, or at the expense of, local interests. This may 
include restoring normal levee or dune height after subsidence, 
replacement of deteriorated components such as outlet structures and 
pipes, removal of debris, and new construction items such as protection 
against erosion. This restriction on use of these authorities does not 
preclude furnishing flood fight assistance during an emergency.
    (b) Areas of minor damage, flood control works. Separable areas 
with minor damage will be included in the maintenance program of local 
interests.
    (c) Minor completion items. Local interests should be responsible 
for minor completion items, such as dressing fills, placing sod, or 
seeding completed work.
    (d) Adequacy of requirements of local cooperation. In determining 
the adequacy of the pledge of local cooperation, district/division 
commanders must consider the local sponsor's performance capability, 
taking into account any shortcomings in meeting prior commitments. 
Local sponsors should make provisions to establish and provide 
resources for a ``Contingency Fund'' to meet future maintenance 
requirements if apparent inadequacies of protective works indicate 
maintenance costs will be unusually high. Local sponsors should make 
provisions to establish and provide resources for a ``Capital 
Improvement Fund'' to meet future costs of capital improvement projects 
such as replacement of culverts in levees, pump station equipment, etc.
    (e) Eligibility under other Federal programs. The Cooperation 
Agreement must be worded to allow local interests to accept funding 
from other Federal programs for meeting the local responsibility. For 
example, removal of temporary works will be without cost under Corps 
Public Law 84-99 assistance, but will not be ``at no cost to the United 
States.'' Use of another Federal agency's funds is contingent upon that 
agency providing the Corps written assurance that such usage does not 
violate any existing laws or rules concerning the usage or expenditure 
of such funds.


Sec.  203.84  Forms of local participation--cost sharing.

    In addition to the standard requirements of local cooperation and 
according to the circumstances, local participation in project work may 
be in the form of: contributed funds; the furnishing of materials, 
equipment, or services; and/or accomplishment of

[[Page 19371]]

work either concurrently or within a specified reasonable period of 
time. The final terms agreed upon will be set forth in writing and made 
a part of the CA before commencement of work.
    (a) Contributed funds. Contributed funds may be accepted, or 
refunded, without further reference or approval by the Chief of 
Engineers. The required certificate of the district commander will cite 
33 U.S.C. 701h as the pertinent authority.
    (b) Obligation of contributed funds. Per OMB Circular A-34, all 
contributed funds must be received in cash and deposited with the 
Treasury before any obligations can be made against such funds. Public 
Law 84-99 assistance for well construction is exempted from this 
requirement because financing is specifically authorized. However, the 
CA for such well construction assistance (see subpart G of this part) 
must be signed in advance of any obligations. To reduce administrative 
problems, CA terms for well construction should be for no longer a 
period than that which will allow for payments within the means of the 
applicant. Public Law 84-99 limits the term to a maximum of 30 years.
    (c) Provision of work or services in kind. To the extent 
practicable, local interests should be allowed to minimize the amount 
of contributed funds by providing equivalent work or services in kind. 
Such services do not include LERRD's.


Sec.  203.85  Rehabilitation of Federal Flood Control Projects.

    Some sponsors of Federal flood control projects are not required to 
furnish written assurances of local cooperation, when such assurances 
already exist from the PCA of the original construction of the project. 
In lieu of a new PCA, the Corps will notify the sponsor, in writing, of 
the sponsor's standing requirements. These requirements include such 
items as LERRD's, costs attributable to deficient or deferred 
maintenance, removal of temporary works, cost-sharing requirements, and 
any other requirements contained in Sec.  203.82. The project sponsor 
must acknowledge its responsibilities prior to the provision of 
Rehabilitation Assistance. If the existing PCA does not adequately 
address responsibilities, then a CA will be required.


Sec.  203.86  Transfer of completed work to local interests.

    Responsibility for operation and maintenance of a project for which 
emergency work under Public Law 84-99 is undertaken will always remain 
with the non-Federal sponsor throughout the process, and thereafter. 
The Corps will notify the non-Federal sponsor by letter when repair/
rehabilitation/work efforts are completed. Detailed instructions, and 
suggestions relative to proper maintenance and operation, may be 
furnished as an enclosure to this letter. The letter will remind the 
local interests that they are responsible for satisfactory maintenance 
of the flood control works in accordance with the terms of the PCA or 
CA. In appropriate cases for Federal projects, refer to the ``Flood 
Control Regulation for Maintenance and Operation of Flood Control 
Works: (33 CFR 208)'' or the project's Operation and Maintenance 
Manual. Reporting requirements placed on the non-Federal sponsor will 
vary according to organization and other circumstances.

[FR Doc. 03-9008 Filed 4-18-03; 8:45 am]
BILLING CODE 3710-92-P