Sec. 2020. Vegetation management policy
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In this section, the term national guidelines means the Corps of Engineers policy guidelines for management of vegetation on levees, including— Engineering Technical Letter 1110–2–571 entitled Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures and adopted April 10, 2009; and the draft policy guidance letter entitled Process for Requesting a Variance from Vegetation Standards for Levees and Floodwalls (77 Fed. Reg. 9637 (Feb. 17, 2012)).
Not later than 180 days after the date of enactment of this Act, the Secretary shall carry out a comprehensive review of the national guidelines in order to determine whether current Federal policy relating to levee vegetation is appropriate for all regions of the United States. In carrying out the review, the Secretary shall consider— the varied interests and responsibilities in managing flood risks, including the need— to provide for levee safety with limited resources; and to ensure that levee safety investments minimize environmental impacts and provide corresponding public safety benefits; the levee safety benefits that can be provided by woody vegetation; the preservation, protection, and enhancement of natural resources, including— the benefit of vegetation on levees in providing habitat for endangered, threatened, and candidate species; and the impact of removing levee vegetation on compliance with other regulatory requirements; protecting the rights of Indian tribes pursuant to treaties and statutes; the available science and the historical record regarding the link between vegetation on levees and flood risk; the avoidance of actions requiring significant economic costs and environmental impacts; and other factors relating to the factors described in subparagraphs
(A)through
(F)identified in public comments that the Secretary determines to be appropriate. In carrying out the review, the Secretary shall specifically consider whether the national guidelines can be amended to promote and allow for consideration of variances from national guidelines on a Statewide, tribal, regional, or watershed basis, including variances based on— soil conditions; hydrologic factors; vegetation patterns and characteristics; environmental resources, including endangered, threatened, or candidate species and related regulatory requirements; levee performance history, including historical information on original construction and subsequent operation and maintenance activities; any effects on water supply; any scientific evidence on the link between levee vegetation and levee safety; institutional considerations, including implementation challenges; the availability of limited funds for levee construction and rehabilitation; the economic and environmental costs of removing woody vegetation on levees; and other relevant factors identified in public comments that the Secretary determines to be appropriate. The scope of a variance approved by the Secretary may include a complete exemption to national guidelines, as the Secretary determines to be necessary. The Secretary shall carry out the review under this section in consultation with other applicable Federal agencies, representatives of State, regional, local, and tribal governments, appropriate nongovernmental organizations, and the public. The Chief of Engineers and any State, tribal, regional, or local entity may submit to the Secretary any recommendations for vegetation management policies for levees that conform with Federal and State laws, including recommendations relating to the review of national guidelines under subsection
(b)and the consideration of variances under subsection (c)(2). As part of the review, the Secretary shall solicit and consider the views of the National Academy of Engineering and the National Academy of Sciences on the engineering, environmental, and institutional considerations underlying the national guidelines, including the factors described in subsection
(c)and any information obtained by the Secretary under subsection (d). The views of the National Academy of Engineering and the National Academy of Sciences obtained under paragraph
(1)shall be— made available to the public; and included in supporting materials issued in connection with the revised national guidelines required under subsection (f). Not later than 2 years after the date of enactment of this Act, the Secretary shall— revise the national guidelines based on the results of the review, including— recommendations received as part of the consultation described in subsection (d)(1); and the results of the peer review conducted under subsection (e); and submit to Congress a report that contains a summary of the activities of the Secretary and a description of the findings of the Secretary under this section. The revised national guidelines shall— provide a practical, flexible process for approving Statewide, tribal, regional, or watershed variances from the national guidelines that— reflect due consideration of the factors described in subsection (c); and incorporate State, tribal, and regional vegetation management guidelines for specific areas that have been adopted through a formal public process; and be incorporated into the manual proposed under section 5(c) of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes , approved August 18, 1941 (33 U.S.C. 701n(c)). If the Secretary fails to submit a report by the required deadline under this subsection, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a detailed explanation of— why the deadline was missed; solutions needed to meet the deadline; and a projected date for submission of the report. Concurrent with the completion of the requirements of this section, the Secretary shall proceed without interruption or delay with those ongoing or programmed projects and studies, or elements of projects or studies, that are not directly related to vegetation variance policy. Until the date on which revisions to the national guidelines are adopted in accordance with subsection (f), the Secretary shall not require the removal of existing vegetation as a condition or requirement for any approval or funding of a project, or any other action, unless the specific vegetation has been demonstrated to present an unacceptable safety risk. Beginning on the date on which the revisions to the national guidelines are adopted in accordance with subsection (f), the Secretary shall consider, on request of an affected entity, any previous action of the Corps of Engineers in which the outcome was affected by the former national guidelines.
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- 77 FR 9637
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