SHOULD I STAY OR SHOULD I GO Annual
- Slides: 8
"SHOULD I STAY OR SHOULD I GO? " Annual Flood Forum March 21, 2018 Scott Shapiro Downey Brand LLP
PREMISE: "I get nothing out of being in the Federal system; I would be better off out of the system. "
HOW TO GET OUT • An Act of Congress • WRDA section 6001 – Uncompleted construction projects authorized before 11/8/07; construction has not been initiated, or, if construction has been initiated, there have been no obligations of Federal or non. Federal funds for construction in the current fiscal year or any of the past 6 fiscal years; and no funding for a post-authorization study in the current fiscal year or any of the past 6 fiscal years. • Trump Proposal
TRUMP PROPOSAL • Deauthorize Certain Federal Civil Works Projects – Currently, all USACE projects remain authorized in perpetuity. This includes completed projects that are under USACE control but are approaching the end of their service life, as well as projects that were built by USACE but are operated and maintained by non-Federal entities. Extensive regulatory and statutory compliance provisions apply to non. Federal sponsors associated with USACE projects, including Section 14 of the Rivers and Harbors Act of 1899, as amended (33 U. S. C. 408, commonly referred to as “Section 408”). – These provisions can make local alterations to federally constructed projects expensive and difficult, as even simple modifications to a Federal project by an applicant trigger a Section 408 review, which increases the costs to both the Government and the applicant. – Amending the law to establish a streamlined deauthorization process that allows for those USACE projects approaching the end of their service life and for those projects operated and maintained by non-Federal interests that do not require Federal oversight would release Federal and non. Federal resources to be used for other purposes.
POTENTIAL ADVANTAGES • No need to comply with 33 U. S. C. section 408: – No 408 to trigger NEPA review – More flexibility in standards – No delay for 408 complianc • Decisions on allocation of resources not influenced by Federal priorities: – Ex: Tyler Island – Ex: Worst-first choices • Not part of Federal inspection program
POTENTIAL DISADVANTAGES • Will support be available under PL 8499? • Stafford Act may still not be available. • State resources often tied to Federal authorization; thus future bond funds for State grants may not be available.
MYTHS TO DISCUSS • I will no longer have to comply with the ESA, CEQA, Streambed Alteration Agreements, etc. • No one will be in my business anymore. • Federal de-authorization is the only step necessary.
OUTSTANDING UNCERTAINTIES • What about state authorization? • Will State still hold LMA's to obligations in assurance agreements? • What will be conditions for deauthorization? • Will ESA compliance now be harder? • What will future of bond funding be?
