(Photo Credit: U.S. Army) VIEW ORIGINAL

Army Civil Works is continuing efforts to modernize the U.S. Army Corps of Engineers (USACE) Civil Works program. There are a series of rulemaking actions and policy developments that may have significant direct effects on Tribal Nations, Alaska Native Corporations, and Native Hawaiians triggering consultation. We are committed to conducting robust and meaningful engagement with Tribal leaders with the goal of better fulfilling federal trust responsibilities to Native people. Please check back for updates on development and availability of rulemaking actions or policy documents for consultation.

To request consultation or submit inquiries on any of these actions as they relate to Tribal Nations, please contact Ms. Quana Higgins, Acting Assistant for Tribal and Regulatory Affairs, via email at quana.n.higgins.civ@army.mil or at (202) 880-4682.

Rulemaking Actions

Processing of Department of the Army Permit; Procedures for the Protection of Historic Properties

Summary: USACE is proposing to rescind Appendix C, which is the current permitting regulation the agency uses to meet their statutory responsibilities under Section 106 of the National Historic Preservation Act to take into account the effect of an undertaking on any historic property. USACE would instead rely on the Advisory Council on Historic Preservation (ACHP) regulations and joint USACE/ACHP guidance for implementation of Section 106. The Army is coordinating closely with Tribal Nations and ACHP throughout this rulemaking effort. Please note, actions on Appendix C are not final until a final rule is published. Click here for the link to the Federal Register Notice.

Tribal Consultation Dates: February 9, 2024* – April 26, 2024

Overview Webinar for Tribal Nations:

March 21, 2024 from 1:00 pm – 3:00 pm EDT

Webinar Link: https://www.zoomgov.com/s/1612721966

Call-in Information:

Phone Number: 669-254-5252

Meeting ID:      161 272 1966

Passcode: 965060

Agency Specific Procedures to Implement the Principles, Requirements and Guidelines

Summary: USACE will establish new agency procedures to implement Principles, Requirements and Guidelines that will consider a wider range of Tribal and public benefits of water resource development projects. USACE is the nation’s largest water resource developer, and the agency’s current procedures for development projects focus primarily on achieving national economic development benefits. Under the new procedures, the agency will take into account additional public benefits of water resources investments, including whether an investment achieves social and environmental benefits for a Tribe.

Tribal Consultation Dates: February 2024* – April 26, 2024

Overview Webinar for Tribal Nations:

March 19, 2024 from 1:00 pm – 3:00 pm EDT

Webinar Link: https://www.zoomgov.com/s/1618160815

Call-in Information:

Phone Number: 669-254-5252

Meeting ID:      161 816 0815

Passcode: 417088

Cost Sharing Requirements under the Ability to Pay Provision

Summary: Army Civil Works is proposing to revise its ability to pay procedures in the Code of Federal Regulations (CFR) to incorporate amendments and provisions of various laws since 1995. In general, the study, design, and construction of projects is cost shared by the Federal government (through the Assistant Secretary of the Army for Civil Works) and a non-Federal interest. The ability to pay provision was established by Congress to provide relief to certain eligible non-Federal interests participating in cost shared studies and projects based on consideration of economic or other social conditions present in their general area. All federally recognized tribes would qualify under this new rule.

Tribal Consultation Dates: Proposed rule is still under development. Please check back on availability for Tribal Consultation.

Flood Plain Management Services Program; Update of Fees for Cost Recovery

Summary: Army Civil Works, through USACE, is proposing to amend the regulation that governs cost recovery when the USACE provides services under its Flood Plain Management Services (FPMS) program. The USACE proposes to delete the fee schedule for Federal agencies and private persons and provide free services for up to one day of effort for those entities categorized as Federal agencies and private persons. The USACE also proposes to add Indian Tribes to the description of entities from which the USACE would not collect fees for services that requires more than one day of effort.

Tribal Consultation Dates: Proposed rule is still under development. Please check back on availability for Tribal Consultation.

* Estimated dates pending final publishing of proposed rule in the Federal Register.

Significant Guidance Development

Studies of Water Resources Development Projects by Non-Federal Interests (Engineering Regulation 1165-2-209)

Summary: Authority for studies prepared by non-Federal interests is provided in Section 203 of the Water Resources Development Act of 1986, as amended.

Tribal Consultation Dates: Proposed guidance is still under review by OMB. Please check back on availability for Tribal Consultation.

Policy Development

Alaska Native Corporations as Non-Federal Interest Policy

Summary: Army Civil Works is establishing the policy and procedures for partnering with Alaska Native Claims Settlement Act (ANCSA) Corporations as non-Federal sponsors to better align Civil Works policy with updated legislation and legal precedent. This policy furthers the objective of the ASA(CW) to modernize how we do business with Tribal Nations by removing barriers to entities that represent Tribal interests and thereby improving access to USACE Civil Works programs.

Tribal Consultation Dates: Under development. We anticipate this draft policy being available for consultation around April 2024.

Overview Webinar for Tribal Nations: In-Person and Virtual Listening Sessions will be scheduled in March to inform potential recommendations for policy development.

Indigenous Knowledge Policy Statement

Summary: Army Civil Works is committed to publish specific and directive guidance for USACE to operationalize the White House Memorandum on Indigenous Knowledge throughout the Civil Works program. Issues that need to be explored include (but are not limited to) protection of culturally sensitive information (FOIA), compensation for Indigenous Knowledge, incorporation into Civil Works decision making (planning, engineering, Regulatory decisions, etc.), and co-management/stewardship opportunities.

Tribal Consultation Dates: Under development. We anticipate this draft policy being available for consultation around May 2024.

Overview Webinar for Tribal Nations: Virtual National Listening Sessions will be scheduled in April to initiate the development of this policy statement.

Native Hawai'ian Organization (NHO) Consultation Policy

Summary: USACE recognizes the special status afforded NHOs by the U.S. Government through various Federal laws, regulations, and policy. Currently, USACE relies on the existing policies through Department of Defense (DoDI 4710.03, currently undergoing an update), which is not directly applicable to Civil Works projects.

Tribal Consultation Dates: Under development. We anticipate this draft policy being available for NHO consultation around June 2024.

Overview Webinar for Tribal Nations: In-Person and Virtual Listening Sessions will be scheduled in April/May 2024 to inform potential recommendations for policy development.

Tribal Co-Land Management and Co-Stewardship Policy

Summary: USACE will explore expanding opportunities for cooperative joint management, cooperative management, partnership agreements, and general engagement with federally recognized Tribes at USACE projects through a review of its authorities, guidance, and regulations and to enable diverse partnerships to deliver projects, manage, and/or co-manage activities on USACE owned lands. USACE will identify challenges and/or limitations, solutions to remove barriers, and training opportunities for Operations and Tribal partners, and provide recommendations to senior leadership on how to deliver these efforts consistently across USACE.

Tribal Consultation Dates: Under development. We anticipate this draft policy being available for Tribal consultation around July 2024.

Overview Webinar for Tribal Nations: Virtual Regional Listening Sessions will be scheduled in March to inform potential recommendations for policy development.