DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS

441 G STREET, NW WASHINGTON, DC 20314-1000

REPLY TO ATTENTION OF

CEMP-CR 26 Nov 18

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Policy Memorandum- Policy Guidance on Real Estate Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018

1. References:

a. Memorandum, OASA (CW), Subject: Policy Guidance on Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018, August 9, 2018

b. Bipartisan Budget Act of 2018 (Public Law 115-123), Division B, Subdivision 1, Title IV (hereinafter BBA).

2. Purpose. To provide additional guidance as to the real estate aspects of Reference 1.a above.

3. Policy. In order to provide a consistent policy, effective immediately the following guidance is provided:

a. In Reference 1.a, paragraphs 5.c.(3), (3)(a) and (3)(b) and paragraph 5.(4) and its subparagraphs, cost sharing and real estate requirements are detailed. Paragraph 5.(c.)(3) and its subparagraphs apply ONLY to ongoing construction projects as defined in paragraph 5.(c.)(2)(b)(i and ii) (regardless of location) and to all supplemental projects in the Virgin Islands or Puerto Rico, while paragraph 5.c.(4) and its subparagraphs apply to projects that are neither in Puerto Rico or the Virgin Islands nor ongoing construction projects. The result is two different categories of supplemental projects, with different rules applying to each.

b. For both categories of supplemental projects, the non-federal sponsor (NFS) remains responsible for the provision of LERRDs (lands, easements, rights of way, relocations and disposal sites). Although paragraph 5.c.(3)(a) refers only to LER and paragraphs 5(c.)(4)(b and c) refer to the provision of LER and utility facility relocations, discussions with the OASA(CW) office have made clear this was meant to be LERRD in each instance.

Printed on *Recycled Paper

CEMP-CR SUBJECT: Policy Memorandum- Policy Guidance on Real Estate Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018

c. Paragraph 5.c.(3)(a) makes clear that reimbursement of NFS is limited to the value of LERRDs acquired from private owners after the date of the execution of the PPA or amended PPA under the BBA. Private owners is meant to exclude governmental entities. As the Corps did in the PPAs in the aftermath of Hurricane Katrina and Superstorm Sandy, the intent is to require public entities to provide the necessary lands for the BBA supplemental projects without reimbursing the NFS for the value of the LERRD required from those public entities. In the rare circumstance that a NFS must acquire LERRD owned by another public entity through condemnation, a policy waiver and PPA amendment to allow reimbursement for the acquisition under the BBA may be considered if the NFS is projected to incur substantial costs. The decision on such a waiver is at the HQUSACE level and no assurance can be given of the eventual outcome.

d. Reference a makes clear that it is in the sole discretion of the Corps to provide acquisition assistance, and that the provisions of ER 405-1-12, Chapter 12, 12-34 apply to any request for such assistance. The Districts/MSCs must submit a request for approval, not merely a notification. Decision authority for such requests is with the Director of Real Estate at HQUSACE. In pursuing such a request, the District must be able to demonstrate that it has the capability, resources and capacity to achieve the acquisition(s) in a timely fashion to meet aggressive construction schedules. This is particularly the case as to utility/facility relocations and condemnations, the difficulties and the long leads times for which are frequently underestimated. Funds to pay for Department of Justice resources may be required. It is also important to consider federal government requirements when making such a request. For example, federal law and federal appraisal standards also apply to acquisitions by the federal government, even if those acquisitions are being performed for a NFS. These federal standards may, in many cases, result in a lower estimate of just compensation than state/local appraisal standards would yield (e.g. special benefits and goodwill for businesses).

e. Where a NFS is acquiring LERRDs for work that will be performed at full federal expense, the federal government will reimburse the NFS for its costs but may not advance federal funds to cover the costs of acquisition. Incidental acquisition costs may be reimbursed on a rolling basis as the NFS incurs the costs and submits reimbursement requests.

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CEMP-CR SUBJECT: Policy Memorandum- Policy Guidance on Real Estate Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018

f. As a part of any proposed Corps acquisitions for NFSs, some districts may be considering contracting of real estate services. In the real estate field, generally the only services that can be contracted by the federal government are title services (including searches, title insurance and closing/escrow services), appraisals and surveys/legal descriptions. Negotiations, appraisal reviews, acceptance and consideration of offers and determinations of title sufficiency are inherently governmental and cannot be contracted.

g. For projects considering the need for a HQUSACE approved waiver to award in support of a contract action not having pre-requisite LERRDs certification, the risk in taking the proposed action must be fully addressed. This must include the process underway for acquiring the necessary LERRDs and timing in relation to construction. As the contract action may potentially have to be terminated and resulting expenses incurred, the availability of the necessary LERRDs subject to the proposed waiver to award must be imminent. For design-build contract actions, a waiver to award could in appropriate cases allow for design-only activities to proceed pending a later to be issued notice to proceed (NTP) for construction only upon having the necessary LERRDs prior to issuance of the NTP.

4. If you have questions about this policy memorandum, please contact John Warren Cline II at 202-761-8635.

Enclosure

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CEMP-CR SUBJECT: Policy Memorandum- Policy Guidance on Real Estate Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018

DISTRIBUTION: COMMANDER: GREAT LAKES AND OHIO RIVER DIVISION (CELRD-PDS-R) MISSISSIPPI VALLEY DIVISION (CEMVD-TD-R) NORTH ATLANTIC DIVISION (CENAD-PD-E) NORTHWESTERN DIVISION (CENWD-PDS) PACIFIC OCEAN DIVISION (CEPOD-RE) SOUTH ATLANTIC DIVISION (CESAD-PDS-R) SOUTH PACIFIC DIVISION (CESPD-ET-R) SOUTHWESTERN DIVISION (CESWD-ET-R)

CF: COMMANDER: DETROIT DISTRICT (CELRE-RE) HUNTINGTON DISTRICT (CELRH-RE) LOUISVILLE DISTRICT (CELRL-RE) NASHVILLE DISTRICT (CELRN-RE) PITTSBURGH DISTRICT (CELRP-RE) MEMPHIS DISTRICT (CEMVM-RE) NEW ORLEANS DISTRICT (CEMVN-RE) ROCK ISLAND DISTRICT (CEMVR-RE) ST. LOUIS DISTRICT (CEMVS-RE) ST. PAUL DISTRICT (CEMVP-RE) VICKSBURG DISTRICT (CEMVK-RE) BAL Tl MORE DISTRICT (CENAB-RE) NEW ENGLAND DISTRICT (CENAE-RE) NEW YORK DISTRICT (CENAN-RE) NORFOLK DISTRICT (GENAO-RE) KANSAS CITY DISTRICT (CENWK-RE) OMAHA DISTRICT (CENWO-RE) PORTLAND DISTRICT (CENWP-RE) SEATILE DISTRICT (CENWS-RE) WALLA WALLA DISTRICT (CENWW-RE) ALASKA DISTRICT (CEPOA-RE) HONOLULU DISTRICT (CEPOH-PP-RE) JACKSONVILLE DISTRICT (CESAJ-RE) MOBILE DISTRICT (CESAM-RE) SAVANNAH DISTRICT (CESAS-RE) ALBUQUERQUE DISTRICT (CESPA-RE)

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CEMP-CR SUBJECT: Policy Memorandum- Policy Guidance on Real Estate Implementation of Supplemental Appropriations in the Bipartisan Budget Act of 2018

LOS ANGELES DISTRICT (CESPL-RE) SACRAMENTO DISTRICT (CESPK-RE) FORT WORTH DISTRICT (CESWF-RE) GALVESTON DISTRICT (CESWG-RE) LITTLE ROCK DISTRICT (CESWL-RE) TULSA DISTRICT (CESWT-RE)

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