Recommendations for a National Levee Safety Program ...From the National Committee on Levee Safety

Overview of the National Levee Safety Program Legislative Proposal for the Water Resources Development Act

Call to Action

We are at a critical juncture in our nation's history. The potential consequences of levee failure can be devastating. The situation is the result of more than 100 years of inattention to, and in some cases neglect of, levee infrastructure combined with a growing population living behind levees and an economy and social fabric that are in a particularly vulnerable state. The current levee safety reality for the United States is stark - uncertainty of location, performance and condition of levees and a lack of oversight, technical standards and effective communication of risk. A look to the future offers two distinct possibilities: one where we continue the status quo and await the certainty of more catastrophes, or one where we take reasonable actions and make investments in a National Levee Safety Program that turns the tide on risk growth.

Background

Through the Water Resources Development Act of 2007 (Public Law 110-114), Congress created the National Committee on Levee Safety (NCLS) to develop recommendations for a national levee safety program, including a strategic plan for implementation of the program. The NCLS adopted the vision of an involved public and reliable levee systems working as part of an integrated approach to protect people and property from floods, and has been working toward this vision since October 2008.

The NCLS developed twenty recommendations for creating a National Levee Safety Program, and presented these in Recommendations for a National Levee Safety Program: A Report to Congress from the National Committee on Levee Safety - 15 January 2009 (Report to Congress).

The specific recommendations of the NCLS for a National Levee Safety Program embrace three main concepts: (1) the need for leadership via a National Levee Safety Commission, which would support state delegated programs, provide national technical standards and risk communication, and coordinate environmental and safety concerns; (2) the building of strong levee safety programs in all states, which would provide oversight, regulation, and critical levee safety processes; and (3) a foundation of well-aligned federal agency programs.

Legislation is needed to fully implement 12 of the 20 recommendations at a national level. At the request of House Transportation & Infrastructure Committee, the Committee has developed a legislative framework for establishing a National Levee Safety Program through a Water Resources Development Act (WRDA). The Water Resources Development Act is Congress's primary means of authorizing new projects for the US Army Corps of Engineers. This document summarizes significant differences between the Committee's Proposed Legislative Framework to Establish the National Levee Safety Program (February 2010) which reflected the full set of recommendations for a National Levee Safety Program contained in their Report to Congress, and the language establishing a National Levee Safety Program via WRDA.

Summary of Changes

The following is a summary of the major changes in the a legislative approach to establishing the National Levee Safety Program via WRDA, as opposed to a comprehensive independent legislative package establishing the National Levee Safety Program. A significant change is a National Levee Safety Program established within the US Army Corps of Engineers (USACE), rather than establishing a new independent federal agency to implement the National Levee Safety Program (NLSP). Several governance and program oversight changes cascade from establishing the NLSP within USACE: the program will be managed by an administrator rather than an independent Commission; an advisory board with standing committees will be established to provide input and advice to the Secretary regarding the development and implementation of the NLSP; the Assistant Secretary of the Army (Civil Works) or their designee would have responsibility for the program and its activities.

Change

Additional Information

National Levee Safety Program (NLSP) is placed within USACE rather than an Independent Commission.

  • Feedback from several stakeholders including the Office of Management and Budget, Congressional staff, and USACE Leadership regarding non-feasibility of creating a new independent federal agency. Adjusted language to promote the NCLS goals of independent advice, program alignment and effective incentives in an embedded program.

NLSP is administered by a Program Administrator rather than a Commission

  • Preferable management approach to governance by a Commission or Board per organizational management experts.
  • Consultation with advisory board and standing committees provides opportunity for nonfederal engagement / input.
  • Appointing/hiring an individual best suited to managing and representing the interests program is easier than appointing a number of Commissioners to do the same.

Commission (with direct management authority) is replaced with an Advisory Board that assesses and reports progress, provides advice, and promotes federal interagency alignment.

  • Board members are not employees of the NLSP, but receive a stipend for their participation on the Board.
  • Administrator is non-voting member of the Board (designed to promote communication).
  • Standing Advisory Committees remain as advisors to the Program.
  • Board members, as advisors to the Secretary regarding the NLSP, can maintain independence and more effectively represent the interests of the group they are appointed from (state or local government, levee owner/operators, private sector, etc.).
  • Board is jointly developed by the Secretary of the Army and Council on Environmental Quality. This elevates the Board, gives them direct access to the Administration and allows them to speak freely about levee safety issues and federal program alignment. Reduces conflict of interest or "dual representation" of being both managers and advisors.
  • Typically, an external body (Board, Commission) does not have the authority or responsibility for program management or implementation within a federal agency.
  • Advisory Board charged with reporting to the Secretary and Congress annually on the program as well as federal agency alignment.
  • Advisory Board has state, local, private sector, tribal and federal membership.

Interagency Committee on Levee Safety encourages alignment of federal programs related to levee safety

  • One federal agency cannot direct another federal agency's actions, priorities or funding. An interagency committee, coupled with an annual report to Congress on their activities (though the independent Advisory Board), opens the door to communications and accountability for improving levee safety.
  • Committee membership is senior leadership of agencies.

Program elements related to FEMA were included under Federal Alignment activities

  • Although this creates the National Levee Safety Program within USACE, the proposal directs the Secretary of the Army to coordinate with FEMA to implement the NCLS recommendations related to FEMA programs.
  • FEMA is represented as a member of the Advisory Board as well as the Interagency Committee, and with the potential to contract elements of the program (grants, communications work) over to other federal agencies.

Implementation of National Levee Safety Standards

  • The National Levee Safety Program (USACE) is not seeking, through this legislative framework, expanded regulatory authority (e.g., enforcement authority, permitting, etc.) for levee design, construction, operations and maintenance, rehabilitation, improvement, emergency management, etc. for all of the nation's levees.
  • The NLSP will develop a National Levee Safety Code and encourage its adoption by state levee safety programs, as well as local governments, levee owner/operators, etc., an approach akin to the National Building Code. Those adopting the code may adopt whole-cloth or may adjust it to fit local conditions. It is up to the state (municipality, etc.) to determine the means for enforcing the standards they adopt.
  • Framework directs "all federal agencies that plan, design, regulate, fund, own, operate, or maintain levees" to adopt the National Levee Safety Code.

Changed terminology from "delegated states" to "participating states"

  • Participating states more clearly articulates the intent of the NCLS of a highly-incentivized voluntary approach where program benefits (e.g., capacity building funding, priority for other funds) are tied to a set of granting / program requirements.
  • The term delegation is often confused with the authorization of states to assume some portion of federal authorities such as permitting and enforcement (e.g., EPA's National Pollutant Discharge Elimination System). The "participating states" model described here is not a strong regulatory program.
  • The framework has not created new authorities for the NLSP or USACE that could be delegated to states.

Details related to the minimum requirements a state would need to receive participating status were removed

  • Did not want to hamper the initial success of the program by codifying in law the minimum requirements. Rather, minimum requirements in the NCLS January 2009 Report to Congress were referenced.
  • The intent is for the program to establish the requirements for recognition as a participating program through rulemaking.

Required the National Levee Safety Board to analyze the feasibility of a potential joint levee/dam safety program and report to Congress

  • Congress requested the Committee consider the plusses and minuses of combining the National Levee Safety Program (proposed to be embedded in USACE) and National Dam Safety Program (FEMA). NCLS has not studied in a manner timely enough to make a specific recommendation. The Committee has suggested that the Levee Safety Advisory Board, in coordination with the National Dam Safety Review Board, report to Congress on the advisability, feasibility and potential approach for creating a joint National Dam and Levee Safety Program.

Established cost sharing minimums for levee inventory and inspection, assistance to states to establish levee safety programs, and the proposed National Levee Rehabilitation, Improvement, and Flood Mitigation Fund

  • Responded to feedback from Congressional committee staff and other stakeholders that initial inventory and inspection of all the nation's levees should be done in conjunction with states or local partners and not at 100% federal cost. Proposed a 75/25 split, which mirrors the proposed cost share split of the funding to assist states in establishing robust state levee safety programs.
  • Proposed a 65/35 cost share split for funding for projects under the National Levee Rehabilitation, Improvement, and Flood Mitigation Fund.
  • The Committee plans additional research into creative alternatives for state and local governments in meeting their 35% cost sharing obligations.

Additional Considerations

To implement a comprehensive approach to levee safety, additional legislative, regulatory or policy changes are expected in the future. At this time, the Committee has not gathered enough information for specific legislative recommendations related to the following NLSP components:

  • Swiftly address growing concerns related to liability and explore a range of measures aimed at reducing the potential liability of engineering firms and/or government agencies that perform engineering services for levee systems. The framework does include a Report to Congress within 180 days of enactment on the issue.
  • Harmonize levee safety activities, especially related to operations and maintenance requirements, and present-day natural resource management principles. The framework does include a Standing Committee on Environment and Safety that will inform future recommendations to Congress and the Administration, and a Report to Congress within 2 years of enactment.
  • The costs to FEMA of implementing these recommendations are not included in the estimated annual costs of the National Levee Safety Program.

For more information about the full set of NCLS recommendations for a National Levee Safety Program and a copy of the 2009 Draft Report to Congress, please refer to www.leveesafety.org.

 

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Updated February 2011

The National Committee on Levee Safety

Congress created the National Committee on Levee Safety to develop recommendations for a national levee safety program, including a strategic plan for implementation of the
program. The NCLS adopted the vision of an involved public and reliable levee systems working as part of an integrated approach to protect people and property from floods, and has been working toward this goal since October 2008.

The NCLS recommendations for a National Levee Safety Program are based on three central concepts:

  • Leadership via a National Levee Safety Commission that provides for state delegated programs, national technical standards, risk communication, and
    coordination of environmental and safety concerns;
  • Strong levee safety programs in and within all states that, in turn, provide oversight and critical levee safety processes; and
  • A foundation of well-aligned federal agency programs and processes.

For more information on the NCLS and its recommendations for a National Levee Safety Program, please visit: http://www.leveesafety.org