Little-noticed CR provision may block long-anticipated policy change

New guidelines for selecting and designing federal water projects released by the Obama administration on Friday were praised by environmentalists and budget hawks who see them encouraging a healthier approach to managing water at locks, dams, levees and even wastewater plants.

But there's a catch: Congress has apparently blocked a key water-management agency from starting work on the changes this year.

At issue is a provision slipped into the fiscal 2012 omnibus appropriations package that prohibits the Army Corps of Engineers from spending money to implement the "principles and guidelines" for water resources that create a course for spending billions of dollars on Army Corps-built projects (E&ENews PM, Dec. 16, 2011). The continuing resolution signed by President Obama last week keyed off levels set by the 2012 bill and carried forward its policy provisions.

The principles and guidelines have a potentially big impact on the nation's water projects.

Levees, locks, dams and other water projects were designed and built over decades to provide maximum economic returns. But in recent years -- especially following Hurricane Katrina in 2005 -- concerns have grown that levees and dams worsen floods and wreak environmental havoc. So Congress in 2007 mandated that rules written in 1983 to govern federal water investments be updated to elevate environmental considerations in project planning and design.


The framework of principles and draft interagency guidelines released Friday directs the lead water-management agencies, as well as those whose work significantly affects water resources, on how to select, locate and design water projects.

The guidelines apply to a broad range of activities, from locks and dams to grant programs to Clean Water Act and Safe Drinking Water Act state revolving funds. They emphasize the value of healthy ecosystems and they encourage nonstructural options, such as expanding wetlands to soak up flood water rather than building levees (E&ENews PM, March 22).

What those overarching principles will mean for individual projects and programs, though, is up to the agencies. The draft guidelines -- which are open to public comment for 60 days -- instruct the agencies to develop their own procedures for implementing the principles within 180 days of when the guidelines are finalized.

That's the step that appears to be blocked at the Army Corps by the 2012 policy rider. The corps failed to return calls requesting comment in time for publication.

"That's where the gears are going to grind to a halt again," said Joshua Sewell, senior policy analyst at the watchdog group Taxpayers for Common Sense. "I think inertia is more likely to take hold than initiative in changing the way we update these."

Sewell said updating the guidelines is especially important given that Congress has been moving toward a more hands-off approach to the Army Corps since the ban on earmarks has limited lawmakers' ability to direct the agency with respect to individual projects. Whereas previous versions of the Water Resources Development Act have authorized specific projects, the bill passed by the Senate Environment and Public Works Committee last week would automatically authorize any water projects that meet a set of criteria (E&E Daily, March 18).

"Congress is still trying to figure out how to manage, authorize and appropriate funds for the Corps of Engineers. The principles and guidelines can be part of getting to a solution to move beyond earmarks," he said, noting that the policy and guidelines are intended to serve as ground rules for the project process.

The original 2007 legislative provision requiring the update in rules was targeted specifically at the Army Corps, the country's largest water management agency. And in 2009, lawmakers called for "clear directives" and "specific requirements" to ensure compliance from the agency, which has long been criticized by green groups for damage done to natural resources and by taxpayers groups for allegedly rigging economic studies to justify costly projects (E&ENews PM, Nov. 17, 2009).

Industry groups that have opposed the policy revisions, contending that the new policy would divert too much federal cash to ecosystem restoration and nonstructural projects at the expense of levees and other infrastructure, see the prohibition on Army Corps efforts to implement it as a way of buying time.

But it's not clear whether the guidance will be finalized this year. After the 60-day comment period, the White House Council on Environmental Quality would need to sort through comments and hammer out revisions. That may not be complete until fiscal 2014 begins in October.

"The interagency guidelines still need to be finalized, and then each federal agency has to develop its specific procedures, so the current question of whether a rider in the CR constrains any agency from implementing doesn't have as much practical significance," said Samantha Medlock, policy counsel for the Association of State Floodplain Managers.

A spokesman for Rep. Earl Blumenauer (D-Ore.), who drafted the 2007 legislative provision that required the update, said the congressman will be working to make sure that Congress doesn't renew the prohibition in the future.

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