Warwick Group Releases Section by Section Analysis of the Water Resources Development Act of 2024
Congress has released the final draft of the Water Resources Development Act of 2024, poised for passage this year, upholding its biennial bipartisan tradition. We have highlighted only key provisions, focusing on the Corps of Engineers and coastal water resources projects. Don’t bother reading the published version of the Section by Section, as several of the descriptions are strikingly misleading in their brevity.
For further inquiries about specific provision, please contact us.
Sec. 1101. Outreach and access
This section designates a point of contact at each Corps district and division to disseminate information to potential non-federal project sponsors that informs them to inform them of operations, maintenance, repair, replacement, and rehabilitation responsibilities associated with partnering in a federal water resources project.
Sec. 1103. Vertical integration and acceleration of studies
This section modifies the Corps’ 3x3x3 process as stated in WRDA 2014 to 5x4x3, increasing the total cost limit of studies to $5,000,000 from $3,000,000 and increasing the allotted completion time from 3 years to 4 years.
Sec. 1104. Minimum real estate interest
This section directs the Secretary to identify and utilize the minimum real estate interest required for authorized water resources development projects and report back to Congress when the Secretary requires the use of fee simple title, where the non-Federal interest requested the use of something less than fee simple title. This is the first of two sections in this legislation seeking to deal with situations where property owners are unwilling to give up the type of easement the Corps normally requires. See also Sec. 1145 below.
Sec. 1105. Review process
This section directs the Secretary to provide clear guidance and technical assistance for modifications of Corps-built structures by non-Federal entities. This section is based on concerns about the details surrounding what are known as Section 408 permits when a non-Federal interest seeks to take an action adjacent to a federal project (i.e., navigation channel) that will have an impact on that project.
Sec. 1107. Continuing authority programs
This section authorizes a pilot program for up to 25 projects to allow a non-Federal interest to carry out a Continuing Authorities Project (CAP) using an “alternative delivery method” which is defined as a method that is not the traditional design-bid-build method. The cost share for such a project remains the same as the applicable CAP program, except that the non-Federal interest can contribute more than its required share and that additional amount will be considered as a return on Federal investment and used to calculate an alternative benefit-cost analysis. The project can also combine study and construction phases. This section also includes provisions for reimbursement for projects caried out under the pilot program if the non-Federal interest contributes all or a portion of the Federal share in advance. This section also increases the per project and total authorized amounts for the following several CAP programs including Section 103, Small Shoreline Projects; Section 111, Shore Damage Prevention or Mitigation; and Section 204, Regional Sediment Management.
Sec. 1108. Stormwater management projects
This section establishes a new Continuing Authorities Program to carry out studies and projects to control, retain, and reuse stormwater associated with flood control efforts. The focus of this program is intended to be urban flood control “including…the management of stormwater that flows at a rate of less than 800 cubic feet per second for [a] ten percent flood.”
Sec. 1109. Study of water resources development projects by non-Federal interests
This section amends Section 203 of WRDA 1986 to make it easier for a non-Federal interest to undertake and submit to a proposal to undertake a project and receive credit or reimbursement as provided by existing law. It also enables a non-Federal interest to propose carrying out modifications to a project that has been previously constructed. It includes a provision that requires the Corps to provide guidance to the non-Federal interest on obtaining Corps assistance for elements of a feasibility study that “may be considered inherently governmental and required to be done by a Federal agency.” It allows guidance for this section to take up to 18 months to be published.
Sec. 1110. Construction of water resources development projects by non-Federal interests
This section amends Section 204 of WRDA 1986 to make it easier for a non-Federal interest to construct a water resources project or a separable element thereof and get credit or reimbursement as provided in existing law. It allows guidance for this section to take up to 18 months to be published.
Sec. 1111. Annual report to Congress
This section requires the Secretary (meaning the Assistant Secretary of the Army for Civil Works) to notify non-Federal interests if their submission was not included in the Secretary’s annual 7001 report to Congress and to notify relevant Congressional delegations of the requests that were included in that report or its appendix.
Sec. 1119. Dredge material disposal facility partnerships
The section permits a non-Federal entity to use a Corps dredged material disposal facility if the Corps determines that such use will not reduce the availability of the facility for its authorized purpose. It also allows non-Federal entities to utilize certain non-Federal disposal facilities managed by the Corps with permission from the facility owner and the Corps. It also authorizes the Corps to perform disposition evaluations for non-Federal disposal facilities not utilized for 20 years, if requested by the owner of such facility.
Sec. 1123. National coastal mapping program
This section authorizes a Corps national coastal mapping program to provide recurring mapping of coastlines to support navigation, flood risk management, environmental restoration, and emergency operations projects.
Sec. 1127. Planning assistance for States
This section allows Planning Assistance to States funds to be used to conduct title research for abandoned structures.
Sec. 1130. Maximization of beneficial use
Amends the beneficial use pilot program authorized by Section 1122 of the Water Resources Development Act of 2022 to make it permanent and to focus it on “promoting resiliency and reducing the risk to property and infrastructure of flooding and storm damage.” Also expands the Section 204 CAP program to include within its purposes “rehabilitation of projects, including projects for the beneficial use of dredged materials described in section1122 of WRDA 2016. “Further, it states the following—
(a) “To the greatest extent practicable, the Secretary shall ensure that not less than 70 percent by tonnage of suitable dredged material obtained from the construction or operation and maintenance of water resources development projects is used beneficially.’’ [Note: this would codify what has been a current Corps policy goal]
(b) Each dredged material management and regional sediment management plan (the latter as developed under the Section 204 CAP program) shall “maximize the beneficial use of suitable sediment” and, where practicable, prioritize the use of dredged material in water resources development projects in areas vulnerable to land loss or shoreline erosion.
Sec. 1139. Ability to pay
This section clarifies that a non-Federal interest’s ability to pay shall be assessed by factors such as per capita income, the financial capabilities of the non-Federal interest, per ca[pita constriction cost, the extent to which the non-Federal interest is economically disadvantaged, and other appropriate criteria that bear upon the non-Federal interest’s ability to carry out its cost-sharing responsibilities. .
Sec. 1142. Federal interest determinations
This section directs the Secretary to determine that up to 20 studies each year that involve economically disadvantaged communities are included in the annual Work Plan submitted to Congress.
Sec. 1145. Easements for hurricane and storm damage reduction projects
This section authorizes something less than a perpetual easement for hurricane and storm damage reduction projects under certain conditions including a warning to those who provide a less than perpetual easement that when the term of such easement expires the Corps will not be able to renourish or use emergency funds to repair the project. It also directs more transparency in Corps documents that new projects will require a perpetual easement and states that, “to the maximum extent practicable”, the Secretary shall request, identify and accept “the minimum real estate interests necessary to carry out the project” for hurricane and storm damage reduction. See Section 1104 above for further definition of such a minimum interest. Furthermore, it states that “It is the sense of Congress that….the minimum estate necessary for easements may not exceed the life of the project nor be less than 50 years.” This section also provides two years for certain authorized hurricane and storm damage reduction projects to come into compliance with the Corps’ real estate requirements. Those projects eligible for this grace period are all in Florida.
Sec. 1148. Treatment of projects in covered communities
This section directs the Secretary select 10 feasibility studies from communities in Hawaii, Alaska, Puerto Rico, Guam, the Mariana Islands, the U.S. Virgin Islands, and America Samoa and include those studies the calculation of an alternation benefit-cost ratio for the project “in order to equitably compare such project to projects carried out in the contiguous United States. It does not require the Corps to recommend construction of any of the projects studied.
Sec. 1156. Sense of Congress relating to comprehensive benefits
This section includes a Sense of Congress that the Secretary should follow specific Corps’ guidance and policy directives to evaluate comprehensive benefits when developing feasibility studies.
Sec. 1201. Authorization of proposed feasibility studies
This section authorizes the Secretary to carry out more than 200 new feasibility studies including ones for storm risk management in San Diego and Orange Counties, California; .Connecticut Shoreline, Connecticut; Hartford, Connecticut; Tybee Island, Georgia; Kaua’i, Hawaii; Maui, Hawaii; Maryland Beaches (Vicinity of Route 1), Maryland; Oak Bluffs, Massachusetts; Quincy, Massachusetts; Tisbury, Massachusetts; Sandwich (Town Neck Beach), Massachusetts; Ludington, Michigan; Marysville, Michigan; Brookhaven, New York; Oyster Bay, New York; Geneva-on-the-Lake, Ohio; Chickahominy River, James City, Virginia; and York River, York County, Virginia.
Sec. 1202. Expedited modification of existing feasibility studies
This section directs the Secretary to expedite the completion of certain modifications of previously authorized feasibility studies.
Sec. 1203. Expedited completion
This section directs the Secretary to expedite the completion of various named studies and projects that have previously been authorized.
Sec. 1204. Expedited completion of other feasibility studies
This section directs the Secretary to expedite the review and coordination of various named feasibility studies that are carried out by non-Federal sponsors.
Sec. 1210. Oceanside, California
This section directs the Secretary to expedite completion of the Oceanside, California shoreline study and produce a recommended plan.
Sec. 1217. New Jersey hot spot erosion mitigation
This section directs the Corps to study erosion ‘hot spots’, or areas of concentrated erosion along coastal storm risk management projects in New Jersey, assess how these erosion hot spots affect the effectiveness of the projects, and provide recommendations to mitigate their impacts.
Sec. 1218. New Jersey Shore protection, New Jersey
This section modifies an existing study authority to include recommendations for ecosystem restoration.
Sec. 1237. Examination of reduction of microplastics
This section directs the Corps’ Engineer Research and Development Center, in consultation with other Federal agencies, to carry out research and development activities on efforts to reduce the release of microplastics into the environment during the construction of Corps projects by activities such as sandblasting or hydro-blasting by vessels owned or operated by the Corps.
Sec. 1241. Public-private partnership user’s guide
This section directs the Secretary to develop a public private partnership user’s guide, including a description of applicable authorities, lessons learned, and best practices.
Sec. 1242. Review of authorities and programs for alternative delivery methods
This section requires the Secretary to complete a user’s guide on the authorities and programs that facilitate the use of alternative project delivery methods for water resources development projects.
Sec. 1244. GAO studies
This section directs the Comptroller General of the United States to initiate and complete 18 studies including reports on the accuracy of Corps project cost estimates, clauses in Project Partnership Agreements that have caused congressional concern including indemnification and responsibility for operation and maintenance; .an analysis of the lifespan of different types of Corps projects; and ways to reduce the review time involved with Section 408 permits.
Sec. 1301. Deauthorization of inactive projects
This section deauthorizes certain water resources development projects not yet initiated or appropriated for due to a lack of local support or available federal or non-federal funding, or due to an authorizing purpose that is no longer relevant or feasible.
Sec. 1302. Specific deauthorizations
This section deauthorizes certain projects or portions of projects.
Sec. 1303. General reauthorizations
This provision provides additional authorizations of Federal appropriations for several Corps programs, including the Non-Federal Implementation Pilot Program.
Sec. 1304. Environmental infrastructure
This section authorizes 192 new environmental infrastructure projects and modifies existing environmental infrastructure authorities.
Sec. 1305. Environmental infrastructure pilot program
This section gives the Secretary the discretion to increase the federal cost share up to 90% for projects involving economically disadvantaged communities.
Sec. 1310. San Francisco Bay, California
This section modifies the authorization for the San Francisco Bay project and adds the shorelines of Contra Costa and Solano counties to the boundaries of the project. It also directs the Secretary to evaluate measures to increase shoreline resiliency of the project as well as to consider the needs of economically disadvantaged communities within the study area.
Sec. 1336. Delaware Coastal System Program
This section modifies certain coastal storm risk management and hurricane and storm risk reduction projects in Delaware and designates those projects as the Delaware Coastal System Program. This provision enables several Delaware coastal projects for navigation and storm damage reduction to be managed as one project.
Sec. 1337. Delaware Inland Bays and Delaware Bay Coast Coastal Storm Risk Management Study
This section modifies the authority for the Delaware Inland Bays and Delaware Bay Coast Coastal Storm Risk Management study to allow the non-federal interest to have its cost share reduced to 10 percent given the fact that portions of these two projects are economically disadvantaged.
Sec. 1342. New York emergency shore restoration
This section authorizes emergency shore restoration assistance for certain projects in New York City where a storm has caused the project to cease being able to function for the purposes for which it was authorized.
Sec. 1359. Congressional notification of deferred payment agreement request
This section requires the Secretary to notify Congress upon receipt of a request from a non-Federal Interest to defer payment of its cost share pursuant to section 103(k) of WRDA 1986.
Sec. 1362. Hopper dredge McFarland replacement
This section requires that any replacement vessel for the aging Federal hopper dredge McFarland be placed in the same ready reserve status as the McFarland.
Sec. 1401. Project authorizations
This section authorizes 21 projects for construction that have completed technical review by the Corps and are recommended by the Chief of Engineers. Included among these projects are the following projects for hurricane and storm damage reduction: District of Columbia, Washington, DC; Ponte Vedra, St. John County, Florida; Miami-Dade Back Bay, Dade County, Florida; South Shore Staten Island (Ft. Wadsworth to Oakwood Beach), Richmond, New York; Puerto Rico Storm Risk Management; and Rhode Island Coastline Coastal Storm Risk Management.
Sec. 2228. Office of Disaster Recovery and Resilience
This section establishes an Economic Development Administration (EDA) Office of Disaster Recovery and Resilience. EDA is part of the Department of Commerce and is the only federal government agency focused exclusively on economic development. This section also requires the new office in EDA to direct and implement post-disaster economic recovery responsibilities of the agency and to support the long-term economic recovery of affected communities.