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Review Procedures for Water Resources Project Planning 2 History of Review of Corps of Engineers Water Resources Project Planning Studies The Corps of Engineers has long prided itself on its engineering excellence. The Corps has constructed and maintains most of the nation’s water transportation and coastal infrastructure. Engineers from around the world view the Corps as a model of engineering competence and admire the Corps’ ability to fashion engineering solutions in challenging environmental conditions, including armed conflict. Corps of Engineers planning studies, or “feasibility studies,” have long been subjected to some level of review. For reasons discussed in Chapter 1, the Corps is currently under pressure to reform the review processes of its planning studies. This panel’s mandate was to provide recommendations for improving review procedures of the Corps’ feasibility studies. In this context, it is instructive to consider the history of review within the Corps. Knowledge of the setting in which review procedures were established, and how and why they have changed over time, can provide lessons about more and less useful approaches and may thus serve as a useful guide for future decisions. The Corps’ own staff members have generally conducted reviews of Corps planning studies. A mainstay of review within the Corps was the former Board of Engineers for Rivers and Harbors. Corps water project planning studies have also been reviewed by various groups within the Corps, such as Corps Headquarters (HQ) in Washington and Corps Division-level offices across the nation (the Corps has historically been divided into several Divisions and further divided into Districts; there are today 8 Corps Divisions and 41 Corps Districts). Corps water resources project planning studies today are reviewed by the Office of the Assistant Secretary of the Army for Civil Works (ASA(CW)) and by the U.S. Office of Management and Budget (OMB).
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Review Procedures for Water Resources Project Planning BOARD OF ENGINEERS FOR RIVERS AND HARBORS The U.S. Congress created the Board of Engineers for Rivers and Harbors (BERH) in Section 3 of the Rivers and Harbors Act of June 13, 1902. From then until 1992, the Board reviewed most of the Corps’ planning studies for civil works projects. The Board’s creation marked the culmination of the efforts of Theodore E.Burton (R-OH), former chairman of the U.S. House of Representatives Committee on Rivers and Harbors. For years, Congressman Burton had observed inconsistent treatment of proposed river and harbor projects by Corps officers reporting from across the country. The House committee’s report on the River and Harbor Bill for 1902 (USAGE, 1980) stated: The object sought by the creating of this board is to secure greater uniformity in the recommendations and reports relating to various projects in the country, and the examination of existing projects the further prosecution of which is considered questionable. Congressman Burton, in defending the bill before Congress on March 17, 1902, stated: Section 3 provides for a board of engineers, five in number, who shall review all projects examined by the local engineers. This subject was considered at considerable length during the discussions upon the bill last winter. The recommendations upon which items are included in this bill come now directly from those having the rank of lieutenant colonel, or higher rank, to the Chief of Engineers. Those having a lower rank than that of lieutenant colonel transmit them to the division engineer, who then transmits them to the Chief of Engineers, with his approval or disapproval, then the Secretary of War transmits them to Congress. Constituting the Board The initial duties of the Board of Engineers for Rivers and Harbors, and the Board’s relationship to the Chief of Engineers, were spelled out in section 3 of the 1902 Rivers and Harbors Act (see Appendix B). The act called for the Board to have five members. The 1912 Rivers and Harbors Act called for the Board’s membership to be increased to no more than nine members. It was subsequently reduced to seven members by the Rivers and Harbors Act of 1913, the “majority of whom shall be of rank not less than lieutenant colonel.” Its size remained at seven until Congress terminated the Board in 1992. Throughout its history, all Board members were staff of the Corps of Engi-
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Review Procedures for Water Resources Project Planning neers (USACE, 1980, provides a more detailed historical examination of the Board). Executing Its Mission In carrying out its mission, the Board of Engineers for Rivers and Harbors reviewed all study reports of the Corps’ proposed water resources projects, including major modifications to existing projects. These study reports were typically submitted to the Board by a Corps “Division Engineer,” who was the chief engineer of a Corps Division. The types of reports reviewed by the Board included studies pursuant to resolutions of the Public Works Committees of both the Senate and the House of Representatives; all special reports ordered by Congress when, in the discretion of the Chief of Engineers, such a review was directed or warranted; and plans for the modification and reconstruction of any lock, canal, canalized river, or other work for the use or benefit of navigation (USACE, 1980). Between 1902 and 1992, the Board of Engineers for Rivers and Harbors reviewed reports on some 9,000 projects, with more than half receiving unfavorable recommendations from the Board. The Board frequently made significant changes to reports submitted for its review. For example, in a survey of the Board’s actions from 1966 through 1970, of a total of 339 reports the Board reviewed and acted upon, the Board reported favorably on 169 of them, unfavorably on 141 of them, and returned 29 for restudy (USACE, 1980). Of the 169 favorable actions, the Board made significant changes in the recommendations of 35 reports. The Board’s authority was limited, however; the Chief of Engineers had the right to enter a contrary opinion, and the Board’s findings could be nullified by the Secretary of the Army, by the Secretary of Defense, or by the president. The Review Process Prior to 1988 Prior to 1988, the review process was sequential, with each review echelon conducting an analysis separate from other review bodies. Feasibility reports conducted by Corps District Offices were reviewed by the Corps Division Office, by the Board of Engineers for Rivers and Harbors, by the Chief of Engineers at Corps Headquarters, by the Office of the ASA(CW), and by the Office of Management and Budget. Each of these bodies reviewed different components (e.g., engineering, economics, hydrology) of a feasibility study, and these reviews generally were increasingly independent as one moved up the Corps organizational chart and away from the Corps District Office that produced the study. This process resulted in multiple checks throughout a
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Review Procedures for Water Resources Project Planning feasibility study. This review process was lengthy, but also arguably provided high-quality review. The Division Engineer’s staff, through in-progress reviews and review of the draft feasibility report, conducted initial project review. Following completion of feasibility reports at the District level, reports were submitted to Division Engineers for final review. The Division Engineers then prepared their reports and issued public notices informing interested parties that reports had been forwarded to the Board of Engineers for Rivers and Harbors for review. Board staff reviewed those reports, and its reviews were presented to the group that submitted recommendations to the Chief of Engineers. In accordance with the 1944 Flood Control Act, the heads of other federal agencies and the governors of affected states were given an opportunity to comment on proposed Corps of Engineers projects before authorization. These entities were to submit written views and recommendations to the Chief of Engineers within 90 days after receiving the report. Following passage of the National Environmental Policy Act (NEPA) in 1969, final Environmental Impact Statements (EIS), after being reviewed by the Board of Engineers for Rivers and Harbors, were sent to the heads of other federal agencies and governors of affected states for comment. At the same time, final EIS reports were filed with the U.S. Environmental Protection Agency (EPA) and transmitted to other interested parties (those not included in the 90-day review) with a comment period of at least 30 days. The Chief of Engineers then considered the Board’s recommendations, comments received during the 90-day state and agency review, comments received on final Environmental Impact Statements, and recommendations of the Director of Civil Works (referred to since 1999 as the Deputy Commanding General for Civil Works) in preparing final reports for the Secretary of the Army. Office of the Assistant Secretary of the Army for Civil Works (ASA(CW)) Review at the Secretary of the Army level is conducted by the staff of the Assistant Secretary of the Army for Civil Works (ASA(CW)) after they receive the Chief of Engineers’ reports. The position of Assistant Secretary of the Army for Civil Works was established in Section 211(a) of the Flood Control Act of 1970, Public Law 91–611. This Assistant Secretary’s principal duty is to supervise the Department of the Army’s programs for conservation and development of national water resources, including flood damage reduction, shore protection, and related purposes. The position of the ASA(CW) and its purpose were reaffirmed in Section 501 of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Public Law 99–433. The specific du-
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Review Procedures for Water Resources Project Planning ties of ASA(CW) are enumerated in General Orders Number 1, which includes: Managing the Department of the Army Civil Works program for conservation and development of the national water resources, including flood control, navigation, shore protection, and related purposes, including— Developing, defending, and executing the Army Civil Works legislative and financial program and budget. Administration of the Department of the Army regulatory programs to protect, restore, and maintain the waters of the United States in the interest of the environment, navigation, and national defense. Serving as Congressional liaison on Civil Works matters and as the Department of the Army point of contact for House and Senate Authorization and Appropriations Committees charged with oversight of the Department of the Army Civil Works program. Ensuring U.S. Army Corps of Engineers Civil Works program support for other federal agencies. Formulating the program and overseeing the budget of the Arlington National Cemetery and the Soldier’s and Airmen’s home National Cemetery. In coordination with the Deputy Chief of Staff for Operations (DCSOPS), directing the foreign activities of the U.S. Army Corps of Engineers, except those foreign activities that are exclusively in support of United States military forces overseas. The position was first filled in March 1975 and has been filled by eight other assistant secretaries since then. As is the case with many political positions requiring Senate confirmation, there is frequently a gap in filling the position, particularly between administrations. Executive Order 12322, dated September 17, 1981, requires that before a Corps feasibility report is submitted to the Congress, it shall be reviewed by the Office of Management and Budget for consistency with the policy and program of the president, with planning guidelines, and with other laws, regulations, and requirements relevant to the planning process. The Assistant Secretary of the Army coordinates this review before formulating the Secretary’s recommendation to Congress. WATER RESOURCES DEVELOPMENT ACTS The 1974 and 1976 Water Resources Development Acts By the early 1970s considerable opposition to many proposed Corps projects had materialized. In the Water Resources Development Acts (WRDA) of
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Review Procedures for Water Resources Project Planning 1974 and 1976, Congress chose to not authorize 60 proposed water projects, most of which had been reviewed by the Board of Engineers for Rivers and Harbors and had received favorable reports from the Chief of Engineers. However, Congress did authorize the Corps to proceed with a “Phase I design memorandum” stage of advanced engineering and design for these projects. The House Committee on Public Works and Transportation defined the Phase I design memorandum stage of advanced engineering and design to include post-authorization studies necessary to establish the project’s basic design and scope, and to appraise a project’s justification and public acceptability (U.S. Congress, 1976). These post-authorization studies were to: reaffirm the basic planning decisions made in the general investigations stage or reformulate the project to respond to changes since authorization, establish the scope of the project, based on current criteria, and develop from a multi-objective standpoint the optimum plan from the alternative plans studied, coordinate the project plan with views of other governmental agencies and local interests, provide the basis for a reliable, up-to-date estimate of project cost, provide a basis for updating environmental impacts and the environmental impact statement, establish the current economic aspects of the project, provide a basis for cost-sharing agreements, preparation of plans and specifications, acquisition of lands, and negotiation of relocation agreements, establish operating requirements and determine whether the project would meet such requirements, facilitate orderly scheduling and programming of funds for detailed design and construction of the project, provide an analysis of the consequences of possible alternatives, considering engineering feasibility, environmental effects, economic factors including regional and national development, social well-being, and other considerations as applicable, describe and consider the costs and means of eliminating, minimizing, or ameliorating possible adverse economic, social, and environmental effects that might result from the project, and provide the basis for a “Statement of Findings” signed by the District Engineer, fully describing the evaluation and decision process and stating that the proposed action was based upon consideration of a reasonable set of appropriate alternative courses of action for achieving the stated objectives; that the action was fully consistent with national policy, statutes, and administra-
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Review Procedures for Water Resources Project Planning tive directives; and that the total public interest was best served by its implementation. Essentially, the Phase I design memorandum concept was deemed appropriate by Congress given the substantial new environmental legislation enacted during this period, the changes in preferences by nonfederal interests and other stakeholders, the use of higher discount rates in updating project economics, and the changes in planning guidance (the federal Principles and Standards, the precursor to the current Principles and Guidelines, was issued in 1973). Several Phase I authorizations were for projects with feasibility studies undertaken prior to the 1969 passage of the National Environmental Policy Act (NEPA). Corps of Engineers planning studies must comply with NEPA. A significant provision within the NEPA that affected changes to the Corps’ planning procedures during this period (and subsequently) was the provision that requires the preparation of Environmental Impact Statements for proposed Corps water projects likely to have significant environmental impacts. The Principles and Guidelines also provide guidance on environmental considerations, with the principles stating that “the Federal objective of water and related land resources project planning studies is to contribute to national economic development consistent with protecting the Nation’s environment, pursuant to national environmental statutes, applicable executive orders, and other Federal planning requirements” (WRC, 1983). The 1986 Water Resources Development Act By the time the Water Resources Development Act of 1986 (WRDA 1986) was passed in November 1986, many Corps water resources project planning studies had been underway for over a decade without reaching the point of project authorization. WRDA 86 authorized more than 200 federal water resources projects. Perhaps more significantly, although there had been cost-sharing provisions attached to Corps projects since the early twentieth century, WRDA 1986 required significant cost-sharing by nonfederal sponsors. The fact that they had to provide cash contributions for virtually all types of projects caused these nonfederal sponsors to become more intimately involved in project formulation and in the timeliness of authorization and implementation. Civil works projects thus could no longer be viewed solely as Corps projects, but rather as cooperative projects with nonfederal sponsors. During this period, there were also changes in the works for Corps review procedures. In April 1988, Robert W.Page, then Assistant Secretary of the Army for Civil Works, tasked the Corps with developing a plan to limit reviews at the Washington level (Corps Headquarters, the ASA(CW)’s office,
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Review Procedures for Water Resources Project Planning and the OMB) to six months. Mr. Page also asked for recommendations for consolidating the review staffs of the Board of Engineers for Rivers and Harbors and the Chief of Engineers. He stated: “While I recognize and support the need for the Board to advise the Chief, I believe the staff functions can be fully consolidated and one staff can support both levels of review (USACE, 1988).” The concept advocated by Mr. Page was to combine the review staffs of the Board of Engineers for Rivers and Harbors and Corps Headquarters into a single Washington-level review group to accomplish review for the Board of Engineers for Rivers and Harbors, the Chief of Engineers, and the ASA(CW). CHANGES TO THE REVIEW PROCESS In response to the cost-sharing requirements of WRDA1986 and the concept of nonfederal sponsors as project planning partners, changes in planning study review and development were pursued under a program labeled Initiative 88. Under Initiative 88, there were two significant modifications to the pre-1988 review process. These changes were designed to reduce duplication and to accelerate the review process. The first change was to include Corps involvement during the reconnaissance and feasibility phases (these phases and the Corps’ planning procedures are explained in greater detail in Chapter 3). Procedures for early agency involvement were designed to assure that the proposed project is acceptable to all levels within the agency early in the planning process. The goal is a commitment to the nonfederal sponsor to process the feasibility report expeditiously for project authorization and to proceed with preconstruction engineering and design (PED). The primary mechanism for early involvement was the mandatory IRC—Issue Resolution Conferences—during the reconnaissance and feasibility phases. The Issue Resolution Conference held during study reconnaissance included evaluation by Corps of Engineers Headquarters of the reconnaissance report conclusions against the general guidelines for reconnaissance studies. If the reconnaissance report met the intent of the guidelines, it would be certified by Corps Headquarters in order to initiate the feasibility study. This certification process provided for early termination of projects that lacked federal interest or were not in accordance with current policies or budgetary priorities. The second mandatory Issue Resolution Conference was held prior to the release of the draft feasibility report for public review. It generally was attended by representatives from the Office of the Assistant Secretary of the Army for Civil Works, Corps Headquarters, the Board of Engineers for Rivers and Harbors, the relevant Corps Division and District Offices, and the nonfederal sponsor. This Issue Resolution Conference included an evaluation of the feasibility study against planning and policy guidelines and against the specific
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Review Procedures for Water Resources Project Planning guidelines resulting from the reconnaissance phase. The IRC and subsequent coordination of the IRC Memorandum for Record addressed the major study issues and minimized the potential for significant modification of the study conclusions and recommendations after the report was submitted for Washington-level review. The second change was to initiate concurrent Washington-level review of feasibility reports by the Board of Engineers for Rivers and Harbors staff, Corps Headquarters, and the Office of the Assistant Secretary of the Army for Civil Works. In essence, once the Division Engineer transmitted a report to Washington, it was available for each of these organizations to review. Prior to the 1988 changes, Washington-level review was conducted sequentially by the staffs of the Board, the Chief of Engineers, and the Office of the ASA(CW). In addition to authorizing several new water resources projects, WRDA 1986 enacted major reform of cost-sharing of water resources projects, as contained in Title I of that act. A result of the new cost-sharing provisions was that project cosponsors demanded a greater role in project-related decisions. These project cosponsors have generally not supported reviews of feasibility reports when those reviews have been seen as contributing to delays in the planning process. The Initiative 88 changes provided for a single Washington-level review staff and a single Washington-level review. The 90-day state and agency review and filing of the final Environmental Impact Statement (EIS) with the Environmental Protection Agency was to be accomplished during the concurrent review period. The staff of the Board of Engineers for Rivers and Harbors coordinated the feasibility report review at the Washington level and provided information to assist decision makers at the Board, Corps Headquarters, and the Office of the Assistant Secretary of the Army for Civil Works. Concurrent Washington-level review concluded with a briefing for designated senior representatives of Washington-level decision makers. Following the briefing, each Washington echelon acted on the report independently and sequentially. The sequence of the decision making was the Board, Corps Headquarters, and the ASA(CW), with each office acting within 30 days after the preceding office had forwarded its recommendation. An additional 30 days were allowed for the ASA(CW) to coordinate with the Office of Management and Budget. The Office of Management and Budget continued to function independently of the concurrent review process, with staff of the Office of Management and Budget reviewing feasibility reports, although this review was constrained by staff size. Before feasibility reports on proposed projects were sent to the Congress for construction authorization (frequently a year or more after the signing of a report by the Chief of Engineers), OMB reviewed them for consistency with the policies and programs of the president and for compliance with federal
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Review Procedures for Water Resources Project Planning guidelines for water resources projects. The OMB’s views on a proposed project were reported in the Assistant Secretary of the Army’s transmittal to Congress. Executive Order 12322 gave OMB a key review role on behalf of the Administration. It provided OMB with broad authority and with criteria for its water resources branch, under the Deputy Associate Director for Natural Resources, to review all proposed projects to be sent to Congress for authorization or appropriations. The review determined whether the proposed project was a supportable candidate for inclusion in the federal Water Resources Development Program on the basis of technical, economic, environmental, and administrative policies. The executive order required OMB to review these factors before a proposal could be sent to Congress. Key Review Changes in 1992 With nonfederal interests continuing to stress the need for more expeditious and less comprehensive review of feasibility studies, the Corps undertook further evaluation of its review process. A Corps “Process Action Team” evaluated the review process and in 1992 produced a report (USACE, 1992) that recommended the following: Eliminate Division-level review of decision documents. The team concluded that the Division-level review added little value to project development. In cases where both Division- and Washington-level reviews were conducted, duplicate reviews occurred. Washington-level staff and decision makers did not always support Division action on reports for which approval authority has been delegated. Some reports approved by the Division were subsequently reviewed at the Washington level. Further revision was sometimes required before concurrence by Washington-level decision makers. Create a Washington-level Central Review Center (CRC) to manage review of all Civil Works decision documents. Eliminate the Board of Engineers for Rivers and Harbors. The team expressed a preference for eliminating the Board of Engineers for Rivers and Harbors. It was felt that the Board added costs and duplication to the review process. Recognizing that dissolution of the Board would require an act of Congress, the group believed that measures should be taken at once to minimize the duplications within planning study reviews. Such measures were to include the transfer of Board staff to the Central Review Center and modification of Board meeting procedures to eliminate Division-level presentations. The review process that stemmed from the 1992 report established a single level of policy review at the Headquarters of the Corps of Engineers and a
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Review Procedures for Water Resources Project Planning single level of technical review within Corps District-level offices. The Washington-level review group was moved to Corps Headquarters and was reduced in size. In Section 223 of WRDA1992 (Public Law 102–580), Congress abolished the Board of Engineers for Rivers and Harbors. CURRENT REVIEW PROCEDURES All feasibility reports and significant decision documents are currently reviewed by a Central Review Center, located within the Office of the Chief of Engineers in Washington, D.C. Since major organizational restructuring in 1996, Corps Division Engineers no longer review feasibility reports, with those reports going from the Corps’ District-level offices directly to Washington for review. As a result, the Corps planning study time line (see Chapter 3 and Figure 3–1) has been shortened. The current review process is supposed to feature technical review conducted by the Corps District Office and policy review conducted at Corps Headquarters. Ideally, the technical review will concentrate on the “how” of the project, including engineering and design criteria, accuracy of calculations, proper application of models, accuracy of cost estimates, and other such technical matters. Determining what constitutes “technical” review or “policy” review is a complicated matter, and the distinction between the two is not always clear. The review is conducted by a group not involved in the project development and can be a group within the District, a group from another District or the Division Office, or an independent contractor. Results of this review are documented and included in the report package sent to Washington. A review team at Corps Headquarters conducts reviews of each project. That team includes Corps analysts in the agency’s planning and policy, programs, counsel, and real estate branches. The review team begins its tasks early in the project development process. The tasks include participation in initial scoping when the feasibility study is initiated, review when alternatives are formulated and before the draft report is released for public comment, and review of the final feasibility report and final EIS or Environmental Impact Assessment. The review team coordinates with the staff of the ASA(CW) and conducts a briefing for OMB staff as part of Executive Order 12322 review in relation to the program of the president. The level of resources currently devoted to this review may be inadequate for the complexities and demands of these tasks. Partially in response to these resource limitations, on August 23,2001, the Principal Deputy Assistant Secretary of the Army for Civil Works informed the Chief of Engineers that the ASA(CW) office was expanding its staff to provide improved oversight of the planning and review processes (Appendix C). The plan calls for a new Deputy Assistant Secretary and three additional
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Review Procedures for Water Resources Project Planning persons with expertise in key areas of water resources planning. The plan is for this group to “work closely with the Corps with the goal of improving our capability of providing well formulated, technically sound, well justified and environmentally acceptable solutions to water resources problems.” Such an improved capability and consistent guidance in the development of water resources projects would facilitate a more effective and timely review and clearance process at OMB. Although this move holds promise for improving planning and perhaps review, it is too early to assess the impact and interaction of this augmented review capability in the Office of the ASA(CW) on the existing review process. COMMENTARY The contemporary water resources planning context in the United States has changed greatly over the past 50 years. Whereas water resources and related problems were at one time generally viewed by society as largely amenable through expert planning and engineering projects, they are today seen as more complex and not as easily resolved through strictly engineering means. There is today a call for more interdisciplinary approaches that include environmental and social scientists at all stages of planning and evaluation cycles, as well as for the input of citizens and other stakeholders. The engineering expertise that once served the Corps well does not, in itself, appear to be fully adequate for resolving many of the nation’s contemporary water resources problems. There was an era in the Corps’ and the nation’s history when review of Corps projects by the Board of Engineers for Rivers and Harbors was adequate. That era featured a strong social faith in technology and engineering to solve problems and in Corps of Engineers water resources project planning studies that were founded largely upon traditional engineering principles and methods. In a planning context where such problems are more complex, are in need of input from multiple disciplines and, in many cases, from stakeholders, and are often highly politicized, internal review of all Corps projects is not adequate. WRDA 1986 initiated important changes that require multidisciplinary and independent review. The cost-sharing provisions of WRDA 1986 have made the Corps far more “customer driven.” Local sponsors have pushed the Corps to shorten planning requirements and reduce costs. However, the need to consider multiple disciplines in water resources planning, and the need for careful review in the face of this increasing complexity, suggest that the Corps’ planning timeline can only be compressed so far. Moreover, the Corps’ water resources project planning studies and projects are still largely paid by the federal taxpayers. The review process is an integral part of assuring the economic
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Review Procedures for Water Resources Project Planning feasibility of a planning study. It may not be sound public policy to shorten the process to satisfy a local customer that is paying only a fraction of overall project costs. Before discussing how such a review process might be structured and implemented, we examine the fundamentals of Corps of Engineers water resources project planning.
Representative terms from entire chapter: