Most of our past Blog posts have been focused on current events, analysis of new trends, and breaking news.  Today, we are sharing some news that is eight months old but that offers a potential and promising path for getting things done.  Some of you may already know of a not-very publicized policy memo distributed by James Dalton, USACE’s Director of Civil Works.  This policy memo takes a creative approach in giving direction to MSCs (“major subordinate commands,” or “divisions” in plain English) and districts.  That approach is: If you can’t get done what you need to get done, and the reason is a policy that we at USACE have adopted, then we will allow you to waive the policy so long as you have a good reason. This, is a good idea!

So let’s start with the policy.  Issued on January 24, 2019, this policy directive ONLY APPLIES to the 2018 Emergency Supplemental Program.  So, if you are partnering with USACE on a project that is funded by the 2018 supplemental, then this could have a big impact on project implementation.  And if your project is not funded by the 2018 supplemental, then this policy has no impact on you at all,  Unless . . . .  well, more about that below.

The policy memo’s stated purpose is to “empower [USACE’s] highly trained and experienced MSC/District teams to use their Technical Expertise and Professional Judgment to make and document authoritative decisions regarding USACE policy and guidance which will enhance delivery of the 2018 Emergency Supplemental within the spirit and intent of USACE policy and guidance.”  In other words, follow policy and guidance when it makes sense, but when a technical reading of the policy is getting in the way, or a procedure is really long and doesn’t add value, have the strength and wisdom to recognize that not every circumstance can be correctly captured by generic policy and guidance.  We applaud this move and find it completely consistent with the vision that James Dalton has been sharing since he became Director of Civil Works.

Of course, in creating the flexibility to waive some policies, Mr. Dalton and USACE recognize that that some things cannot be waived, such as:

  • The law
  • Procedures adopted under the Administrative Procedures Act as official rule making (which is also “the law”)
  • Policies adopted by “higher authorities” such as the Department of Defense, Office of Management and Budget, etc
  • Anything that will reduce the quality and performance of the project over its authorized lifetime
  • Anything that will materially increase the probability of severity of loss of life.

And in traditional USACE form, a decision to waive a policy requires compliance with a policy on how it is done (see pages 2 through 5 of the memo and the checklist and form on pages 7 and 8).  But despite the needed guidance on how to evaluate requests and how to get things done, this policy memo offers districts and divisions some very effective tools to ensure that projects can be implemented in sensible ways.

So, as noted above, this only applies to the 2018 supplemental. And in light of the language in the supplemental appropriation that funds should be expended within five years, it makes complete sense that this policy would be applied to the supplemental.  But we think the more interesting question is whether this policy memo might be a glimpse into how USACE may operate its entire Civil Works program in the future.  Whether or not an appropriation is tied to urgent need or not, this sensible approach to implementing guidance and policy is something that USACE should consider adopting mission-wide.  Bravo!

Photo of Scott L. Shapiro Scott L. Shapiro

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley.
He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the…

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley.
He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) throughout the Western United States.

With a special focus on massive flood protection improvement projects, Scott advises clients through regulatory, contractual, financing, and legislative challenges. Acting as general or special counsel, he regularly interacts with senior management at USACE (Headquarters, South Pacific Division, and Sacramento District), the California Department of Water Resources, and the Central Valley Flood Protection Board. He was named to the National Section 408 Task Force and has been invited to give testimony to the National Academies. Scott was instrumental in helping the first regional flood improvement agency that took a basin threatened by flood risk from less than 30-year level of protection to a level of protection approaching 200-year.

Having worked with FEMA on issues of floodplain mapping and levee accreditation for many years, Scott has developed collaborative environments in which he fosters win-win solutions for his clients. He is also currently serving as the lead counsel on a flood insurance rate map (FIRM) appeal and has drafted Federal legislation to modify the National Flood Insurance Program (NFIP) several times.

Scott is known throughout the region for his extensive litigation experience focusing on cases arising from levee failures. He has litigated levee failures resulting from underseepage, failed encroachments, and rodent burrows as well as briefing levee overtopping cases at the appellate level. Scott is one of the few attorneys with experience litigating flood cases on behalf of plaintiffs as well as defendant government entities.

Photo of Andrea P. Clark Andrea P. Clark

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea…

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea for her ability to explain in understandable terms the wide range of issues impacting them, including basic transparency laws (Brown Act and Public Records Act), public bidding and contracting, bond financing, the unique nature of joint powers authorities, and elections. She also regularly counsels clients on water transfers, Proposition 218 compliance, the California Environmental Quality Act, the National Environmental Policy Act, and financing strategies for major capital improvement projects.

With a special expertise in flood control and floodplain management, Andrea is regularly asked to speak on topics ranging from flood insurance to climate change and the future of flood control policy in California. Through her representation of clients in state flood policy and speaking engagements, she has forged strong relationships with key members of the flood control community in California.

Andrea also counsels private clients, including landowners and mutual water companies, on water supply matters, including proceedings before the State Water Resources Control Board, water rights determinations, and contractual disputes with Federal agencies.