Section

[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR263.27]

[Page 361-366]

TITLE 33--NAVIGATION AND NAVIGABLE WATERS

CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF

DEFENSE

PART 263_CONTINUING AUTHORITIES PROGRAMS--Table of Contents

Subpart D_Shore Protection Policy

Sec. 263.27 Authority for mitigation of shore damage attributable to

navigation works (Section 111).

(a) Legislative authority. Section 111 of the River and Harbor Act

of 1968 (Pub. L. 90-483, approved August 13, 1968) states:

The Secretary of the Army, acting through the Chief of Engineers is

authorized to investigate, study, and construct projects for the

prevention or mitigation of shore damages attributable to Federal

navigation works. The cost of installing, operation and maintaining

shall be borne entirely by the United States. No such projects shall be

constructed without specific authorization by Congress if the estimated

first cost exceeds $1,000,000.

(b) Definitions--(1) Federal navigation works is defined as a

project or feature thereof that has been specifically authorized by the

Congress in a River and

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Harbor Act or authorized under the continuing authorities granted by

section 201 or the Flood Control Act of 1965, or by section 107 of the

River and Harbor Act of 1960, as amended. These shall include projects

or project features built by others but which have been adopted as a

Federal Navigation project.

(2) Beach erosion control project is defined as a project that has

been specifically authorized by the Congress in a River and Harbor Act

or authorized under the continuing authorities granted by section 201 of

the Flood Control Act of 1965 or by section 103 of the River and Harbor

Act of 1962. This is considered to include the beach erosion control

portion of combined beach erosion and hurricane protection projects.

(3) Mitigation of shore damages is defined as the construction of

works or procedures to reduce erosion-type damages by shoreline

stabilization. The degree of mitigation is the reduction of erosion or

accretion to the level which would be obtained without the influence of

navigation works at the time navigation works were accepted as a Federal

responsibility. It is not intended that shorelines be restored to

historic dimensions, but only to lessen the damages by an action that

can be justified, the entire costs of which are Federal regardless of

shore ownership.

construction and maintenance of work for prevention or mitigation of

damages to both public and privately owned shores to the extent of the

damages that can be directly identified and attributed to Federal

navigation work located along the coastal and Great Lakes shorelines of

the United States. This authority will not be used:

(i) For construction of works for prevention or mitigation of shore

damages such as those caused by river bank erosion or vessel generated

wave wash.

(ii) To modify navigation projects authorized, but not constructed,

that contain features for prevention or mitigation of shore damages or

to change the responsibility for maintenance or to modify portions of

constructed navigation projects that contain features for prevention or

mitigation of shore damages.

(iii) For prevention or mitigation of shore damages caused by non-

Federal navigation projects.

(iv) To construct, maintain, modify or change the cost sharing of

authorized beach erosion or combined beach erosion and hurricane

protection projects, or portions thereof, located adjacent to Federal

navigation projects. Except, when it is determined that shore damage to

a portion of an authorized beach erosion project is attributable to the

navigation project, mitigation measures may be accomplished under this

authority, only to the extent of damages that can be directly identified

and attributed to the navigation project.

(2) Where the erosion attributable to the Federal navigation project

consists of only a portion of the total erosion problem in a specific

area and cannot be considered as a separable reach for effective

mitigation measures then a section 111 project cannot be considered for

authorization unless,

(i) There is an authorized beach erosion control or combined beach

and hurricane protection project for the area with which the section 111

mitigation measures could be combined to become effective, or

(ii) A general study of the entire problem area is made and leads to

the development of an authorized beach erosion control project,

(specific authority must be obtained to conduct a general study of the

entire problem area) or

(iii) Local interests indicate a willingness to have the erosion

problem outside the scope of section 111 remedied at local cost.

(d) Cost limitations. Section 111 provides that the Chief of

Engineers has authority to authorize projects for which the estimated

first costs will not exceed $1,000,000. The first costs will be the cost

of the initial preventive or mitigative measures only. The limitation on

costs does not include the cost of project maintenance. The project must

be planned as a complete unit and not broken into reaches or stages for

cost limitation purposes.

(e) Reports. The Recon Report required by Sec. 263.15(c)(1) will:

[[Page 363]]

(1) Determine whether or not Federal navigation works are

responsible for causing or contributing to the erosion problem.

(2) Determine the extent of the area affected by the navigation

works.

(3) Determine total area experiencing significant erosion.

(4) Determine the approximate percentage of the total erosion

problem in a specific area that is attributable to the navigation works.

(5) Recommend whether further study of the specific area affected by

the Federal navigation works is justified and whether study of the

entire area is desirable.

(f) Evaluation of mitigation measures. The objective of section 111

is to provide mitigation measures for shore damages attributable to

Federal navigation projects, when equitable and in the public interest.

All practicable alternatives, structural and non-structural should be

identified and considered. Work recommended for construction should

provide the most practicable and economical means of mitigating existing

damages or the prevention of subsequent damages. Justification of

mitigation measures should be made by comparing their costs with the

values represented by the damages preventable. Any intangible values

should be described and given due weight along with the tangible values

in this justification. Exercise of the authority of section 111 to

provide mitigation measures at Federal expense is not mandatory. A

finding for or against its use should fully consider the pre-project

conditions and the justification of incurring mitigation costs.

(g) Criteria for a Favorable Recommendation. A recommendation

favorable to adoption and construction of work to prevent or mitigate

shore damage attributable to a Federal navigation project under the

authority of section 111 of the River and Harbor Act of 1968 may be

considered warranted when both of the following conditions exist:

(1) The navigation project has been determined to be the cause of

the damage.

(2) Analysis based on sound engineering and economic principles

clearly demonstrates the feasibility of the proposed work.

(h) Cost sharing--(1) Construction. (i) If the work recommended in

the report is confined to mitigation work only under section 111, i.e.,

erosion totally attributable to the navigation works, costs will be 100

percent Federal.

(ii) If the work recommended is a combination of mitigation under

section 111 and restoration of beaches eroded due to other causes and

there is no authorized beach erosion project, mitigation work under

section 111 will be 100 percent Federal and the remaining work will be

100 percent local.

(iii) If the work recommended in the report is a combination of

mitigation under section 111 and the restoration of beaches under an

authorized beach erosion project or combination beach erosion-hurricane

protection project, the mitigation work under section 111 will be 100

percent Federal and the remainder in accordance with the cost sharing

procedures as specified in project authorization documents.

(2) Maintenance. (i) If the initial work is confined to mitigation

under section 111, all maintenance costs are 100 percent Federal.

(ii) If the work is a combination of mitigation under section 111

and restoration of beaches eroded due to other causes, and there is no

authorized beach erosion project, maintenance costs will be shared in

the same proportion as recommended for initial construction, i.e., the

section 111 portion will be 100 percent Federal and remaining work 100

percent local.

(iii) If the work is a combination of mitigation under section 111

and an authorized beach erosion control project or combination beach

erosion-hurricane protection project, the Federal maintenance cost for

the mitigation work under section 111 will be in the same proportion as

the damage attributed to the Federal navigation work is to the total

damage. For the remaining work the cost sharing procedures of the

authorized beach erosion or combined beach erosion-hurricane protection

project will apply.

(i) Local cooperation. (1) The law as written provided that the cost

of installing, operating and maintaining projects under this authority

shall be

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borne entirely by the United States; therefore there are no requirements

for local cooperation. The cost of any lands, easements or rights-of-way

required for construction or subsequent maintenance will be borne

entirely by the United States.

(2) Where section 111 projects are to be accomplished in conjunction

with other works (Sec. 263.15(a)(2)) local interests will be required

to furnish assurance of local cooperation similar to those required for

regularly authorized projects for their assigned portion of the work.

(3) Where section 111 projects are to be accomplished in conjunction

with authorized projects, the requirements of local cooperation

specified in the authorizing document or report will apply.

Appendix A to Part 263--History of Program and Project Limitations

Continuing Authorities Program

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Federal cost Annual

Section/law Date Public law limitation program

No. per project limit

----------------------------------------------------------------------------------------------------------------

(1) Small Flood Control Project Authority (Sec. 205)

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Sec. 205 of 1948 FCA...................... June 30, 1948............... 80-858 $100,000 $2,000,000

Sec. 212 of 1950 FCA...................... May 17, 1950................ 81-516 150,000 3,000,000

Public Law 685/84th Congress, 2d Sess..... July 11, 1956............... 84-685 400,000 10,000,000

Sec. 205 of 1962 FCA...................... Oct. 23, 1962............... 87-874 1,000,000 25,000,000

Sec. 61 of WRDA of 1974................... Mar. 7, 1974................ 93-251 \1\ 30,000,000

1,000,000

\3\

2,000,000

Sec. 133(6) WRDA of 1976.................. Oct. 22, 1976............... 94-587 2,000,000 30,000,000

\3\

3,000,000

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(2) Authority for Snagging and Clearing for Flood Control (Sec. 208)

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Sec. 2 of 1937 FCA........................ Aug. 28, 1937............... 75-406 $25,000 $300,000

Sec. 13 of 1946 FCA....................... July 24, 1946............... 79-526 50,000 1,000,000

Sec. 208 of 1954 FCA...................... Sept. 3, 1954............... 83-780 100,000 2,000,000

Sec. 26 of WRDA of 1974................... Mar. 7, 1974................ 93-251 250,000 5,000,000

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(3) Authority for Emergency Streambank and Shoreline Protection of

Public Works and Nonprofit Public Services (Sec. 14)

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Sec. 14 of 1946 FCA....................... July 24, 1946............... 79-526 $50,000 $1,000,000

Sec. 27 of WRDA of 1974................... Mar. 7, 1974................ 93-251 250,000 10,000,000

----------------------------------------------------------------------------------------------------------------

(4) Small Navigation Project Authority (Sec. 107)

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Sec. 107 of 1960 R. & H. Act.............. July 14, 1960............... 86-645 $200,000 $2,000,000

Sec. 310 of 1965 R. & H. Act.............. Oct. 27, 1965............... 89-298 500,000 10,000,000

Sec. 112 of 1970 R. & H. Act.............. Dec. 31, 1970............... 91-611 1,000,000 25,000,000

Sec. 133(a) of WRDA of 1976............... Oct. 22, 1976............... 94-587 2,000,000 25,000,000

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(5) Authority for Snagging and Clearing for Navigation (Sec. 3)

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Sec. 3 of 1945 R. & H. Act................ Mar. 2, 1945................ 79-14 None $300,000

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(6) Small Beach Erosion Control Project Authority (Sec. 103)

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Sec. 103 of 1962 R. & H. Act.............. Oct. 23, 1962............... 87-874 $400,000 $3,000,000

Sec. 310 of 1965 R. & H. Act.............. Oct. 27, 1965............... 89-298 500,000 10,000,000

Sec. 112 of 1970 R. & H. Act.............. Dec. 31, 1970............... 91-611 1,000,000 25,000,000

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(7) Authority for Mitigation of Shore Damages Attributable to

Navigation Projects (Sec. 111)

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Sec. 111 of 1968 R. & H. Act.............. Aug. 13, 1968............... 90-483 \2\ None

$1,000,000

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\1\ Project cost may go to $2,000,000 if project is located in a major disaster area designated by the

President.

\2\ A project exceeding $1 million will be transmitted to Congress for specific authorization.

\3\ Federal cost may go to higher amount if project is located in a major disaster area designated by the

President.

[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]

[[Page 365]]

Appendix B to Part 263--Application of Multiobjective Planning Framework

to Continuing Authorities Program

1. General. The planning process described in the ER 1105-2-200

series of regulations including the implementation of Federal planning

and evaluation criteria, are generally applicable to studies conducted

under the Continuing Authorities Program. However, due to the limited

scope of many of the plans and projects considered under this program,

modification of the process is appropriate. Specific modification of the

requirements of the planning criteria is not appropriate since the

legislative and executive authorities setting forth these criteria do

not differentiate between various types of level C implementation

studies. Discretion must be employed by reporting officers and reviewers

of Detailed Project Reports to insure that projects recommended for

implementation by the Corps have been selected on the basis of

information and analyses consistent with the WRC Principles and

Standards, while at the same time keeping the requirements for

information and analyses consistent with the scope of the study,

solutions recommended, and the Program completion-time objectives

outlined in Sec. 263.18 of this regulation.

2. Plan Formulation Stages.

a. Stage 1--Reconnaissance Study (Recon). As presented in para. 6c,

a Reconnaissance will replace the Development of a Plan of Study as the

primary element of Stage 1 planning. As a general rule, a Recon should

be conducted by a study team consisting of an engineer, an economist,

and an environmentalist. A one-to-two day field reconnaissance should be

sufficient to analyze the need for a project, to develop sketch plans,

discuss views and capabilities of local interests, and identify the

economy of the potential project area and possible environmental issues

that would need to be addressed if a feasibility study were to be

conducted. Additional effort should pinpoint all data deficiencies,

types of investigations required for the feasibility study, and the

estimated cost of the study. The latter identification process can be

developed as a Plan of Study for the feasibility study, if approved and

funded. To accomplish the intended purpose of the Recon, within the time

and cost objectives given in this regulation, reporting officers are not

required to develop a specific project (except for emergency situations

under Section 14 or 3 Authorities), but should only provide the

information required to make a decision as to whether there is a Federal

interest in conducting a feasibility study. Mature, seasoned judgment is

a prime requisite.

b. Stage 2--Development of Alternative Plans. While the ER 1105-2-

200 series of regulations provides for a three-stage development of

plans, studies under Continuing Authorities may consolidate these two

final stages (intermediate and detailed), into a single stage, if

appropriate. This consolidation does not eliminate any of the planning

tasks, as discussed in para 3 below, nor does it diminish the concept of

screening a full array of alternatives including nonstructural measures,

with increasing levels of detail in the assessment of impacts and

evaluation as planning progresses to plan selection. The primary

emphasis in making the consolidation of these two stages is that the

plan selection is normally made on the basis of more limited data and

analyses than appropriate for studies conducted under the Level C Survey

Program or the Phase I AE&D Program.

c. Stage 3--Development of Recommended Plan. The feasibility study

under the Continuing Authorities Program will include the design of a

recommended plan to the extent necessary to proceed directly from the

Detailed Project Report to preparation of plans and specifications.

While studies under the Level C Survey Program would complete plan

formulation prior to accomplishing detailed project design, the nature

of this Program necessitates a flexible design phase, wherein changes in

scope of the selected plan, with accompanying changes in project impacts

and evaluation, are to be expected and handled by planning personnel in

order that the DPR will reflect a selected plan consistent with

completed detailed design and a plan justified under the current Federal

evaluation criteria for recommending Federal participation.

3. Planning Tasks.

a. Problem Identification. While planning under Continuing

Authorities is to be on a multi-objective basis, the range of problems

that can be addressed under a particular Program authority is more

limited than normally considered in the conduct of studies specifically

authorized by Congress. A good effort to focus the study on relevant

problems should be made in the Recon phase of the study, while more

intense efforts at data collection and definition of the problems and

associated needs should be accomplished during Stage 2 planning.

b. Formulation of Alternatives. There are no fundamental differences

in the process of formulating alternatives under these Program

authorities than in Level C Survey studies, with the exception that the

array of alternatives will normally be more limited based on the

discussion in para 3a above. The level of detail to which the

alternatives are formulated, with associated assessments of impacts and

evaluation of beneficial and adverse contributions, will vary greatly

depending on the study authority. In some cases, alternatives will be

screened and eliminated for various reasons without full development of

a tentative plan which can be

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assessed and evaluated. Such screening is consistent with the nature of

this Program; however, good judgment and interdisciplinary participation

should be emphasized in such preliminary screenings. The guidance in the

ER 1105-2-200 series of regulations with regard to consideration of non-

structural measures and formulation of NED and EQ plans, is fully

applicable to studies conducted under this Program.

c. Impact Assessment. There is no difference in the requirements for

the assessment of impacts for studies conducted under Continuing

Authorities and those under the Level C Survey Program. As in all

studies, the extent to which information is obtained to adequately

assess impacts of alternative plans is a matter of discretion of the

reporting officer, bearing in mind the requirements of the National

Environmental Policy Act of 1969 (NEPA) and Section 122, Public Law 91-

611.

d. Evaluation. The processes, analyses and displays for evaluation

of alternative plans as prescribed in the ER 1105-2-200 series of

regulations are generally applicable to studies conducted under

Continuing Authorities. Again, the level of detail, and not the process

itself, is to be consistent with the study authority and the needs of

the decision-making process.