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Cogesoa Resarc SenUe
Updated February 26, 2019
Redirecting Army Corps of Engineers Civil Works Resources
During National Emergencies
In January 2019, news outlets reported that the Trump
Administration was investigating redirecting U.S. Army
Corps of Engineers (USACE) civil works funds to construct
physical barriers along the U.S.-Mexico border. USACE is
an agency in the Department of Defense (DOD) that
performs both military and civil works activities. Section
923 of the Water Resources Development Act of 1986
(WRDA 1986; 33 U.S.C. §2293) provides the Secretary of
the Army authority to redirect civil works resources in the
event of a declared war or national emergency that requires
or may require use of the Armed Forces. On February 15,
2019, President Trump declared a national emergency at the
southern border; 33 U.S.C. §2293 was not among the
authorities invoked in the President's proclamation.
In 1985 and 1986, during deliberations on the proposed
authority for the Secretary of the Army to redirect civil
works resources, the authority was discussed as a means to
more easily draw upon civil works resources to meet
mobilization construction requirements in times of war and
national emergencies (e.g., building barracks for mobilized
reserve units). The authority appears not to have been used
since enactment. In January 2019, USACE indicated it had
no information on past uses of the authority, and was
unable to provide current implementation guidance for the
authority. Among the issues for Congress that might be
raised if 33 U.S.C. §2293 were to be invoked is the effect
that a redirection of funds might have on USACE's water
resource projects. USACE civil works responsibilities
consist primarily of three types of water resource projects:
improvements for supporting commercial navigation,
measures to reduce flood damage, and restoration of aquatic
ecosystems.
This CRS product provides a primer on the authority to
redirect civil works resources, USACE civil works funding,
and the legislative history of 33 U.S.C. §2293. It also
discusses ways other than 33 U.S.C. §2293 that USACE has
been or could be involved in wall or fence construction
along the U.S.-Mexico border. For a broader discussion of
issues for Congress related to using various authorities and
DOD funding for border wall or barrier construction, see
CRS Legal Sidebar LSB 10242, Can the Department of
Defense Build the Border Wall?
Authority to Redirect Resources
In 1986, Congress provided the Secretary authority to
terminate or defer certain civil works projects and redirect
these resources. Specifically, 33 U.S.C. §2293(a) states:
In the event of a declaration of war or a declaration
by the President of a national emergency in
accordance with the National Emergencies Act [50
U.S.C. 1601 et seq.] that requires or may require use
of the Armed Forces, the Secretary, without regard
to any other provision of law, may (1) terminate or
defer the construction, operation, maintenance, or
repair of any Department of the Army civil works
project that he deems not essential to the national
defense, and (2) apply the resources of the
Department of the Army's civil works program,
including funds, personnel, and equipment, to
construct or assist in the construction, operation,
maintenance, and repair of authorized civil works,
military construction, and civil defense projects that
are essential to the national defense.
If 33 U.S.C. §2293 were to be used, the Administration's
interpretation of the legal authority provided in 33 U.S.C.
§2293 and policy decisions regarding the use of the
authority are among the factors that might shape which
USACE budget accounts and which civil works projects
would be affected. As previously noted, there is no publicly
available implementation guidance regarding the process
for the Secretary of the Army to use this authority. Beyond
requiring that the Secretary deem the terminated or deferred
civil works project as not essential to national defense, the
language in 33 U.S.C. §2293 does not specify which
USACE civil works budget accounts may be tapped or
which types of projects may be terminated or deferred.
Current, publicly available FY2019 information on USACE
financial resources is limited (e.g., no information on
current obligated and unobligated amounts in USACE civil
works accounts or at the project level). According to the
FY2018 United States Army Corps of Engineers-Civil
Works Annual Financial Report, the agency had $37.7
billion in civil works funding (including emergency
supplemental funds) available for expenditure across all
USACE civil works accounts in FY2018.
Congressional Notification
Pursuant to 33 U.S.C. §2293(b), the Secretary of the Army
is required to immediately notify the appropriate
committees of Congress of any action taken pursuant to
the authority. The Secretary also is required to cease using
33 U.S.C. §2293 authorities within 180 days of the end of
the state of war or termination of the national emergency
(pursuant to 50 U.S.C. §1622).
Civil Works Funding
USACE uses most of its civil works appropriations to work
on specific studies and projects authorized by Congress.
Congress typically funds USACE civil works activities
through multiple accounts in annual Energy and Water
https://crsreports.congress.gov
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