EP 1165-2-1
30 Jul 99
negligence of a government employee, no recovery is allowable
resulting from the exercise of a discretionary function by a
government official. The Chief of Engineers has discretionary
authority under certain conditions to provide remedial work to correct
certain adverse conditions resulting directly from a Civil Works
project. This includes any destructive erosion of lands beyond
Federal property limits around reservoir boundaries. The Office of
Counsel should be consulted on the applicability of this authority to
individual cases. (33 U.S.C. 633, 701(q))
11-9. Use of Corps Reservoir Flowage Easement Lands. Flowage
easement lands present a difficult challange. The Corps has only
purchased certain rights associated with periodic water storage on the
property and does not exercise the absolute control associated with
ownership in fee. Therefore, the Corps ability to plan for developing
and using flowage easement lands in the master planning process is
limited. Though easement provisions may vary, ER 405-1-12 sets forth
the current flowage easement requirements. It provides that no
structure for human habitation shall be constructed or maintained on
the land, that no other structure shall be constructed or maintained
on the land except as may be approved in writing by the Corps, and
that no excavation shall be conducted or landfill placed without Corps
approval. Under the standard flowage easement, the land use decisions
under the purview of the district commander are approval for
structures other than for human habitation, and approval of
excavations or landfill placements. Final approval authority for
release of the restriction on human habitation rests with the ASA(CW).
Guidance on considerations in making the land use decisions and
recommendations for flowage easements is presented in the following
paragraphs. This guidance applies to decisions on future land use and
does not apply to corrective actions for unpermitted encroachments on
flowage easement areas.
a. Structures Other Than for Human Habitation. Approval for
structures other than for human habitation rests with the district
commander. However, to ensure national and regional consistency in
policy application, any approval action must be coordinated with the
division commander before it is finalized. The following criteria
should be used for evaluating the approval of these structure on
flowage easement lands.
(1) Compatibility with Project Operations. The structure
must be compatible with project operations. Therefore, any proposal
which would result in a significant increase in debris or
sedimentation in the reservoir will not be approved. Any proposed
structure for the production or storage of highly volatile, hazardous,
toxic, or water reactive materials will not be approved.
(2) Compatibility with Floodplain Management. In accordance
with the requirements of the national policies on floodplain
management, any non-residential structure (building), including such
structures as barns and storage buildings, must be elevated above the
100-year flood plain or floodpool or floodproofed watertight to or
above the 100-year flood level. Also the landowner must demonstrate
that there is no practical alternative to location of the structure
other than within the floodpool or flood plain. Certain types of
development are compatible with periodic low velocity inundation
including parking lots and other paved surfaces, field recreation
facilities (backstops, goalpost, etc.) and open type structures
(picnic shelters). These kinds of developments would generally be
approved unless their construction reduced the flood control storage
11-13
Previous Page
