EP 1165-2-1
30 Jul 99
capacity of the project or considerations of safety or property damage
preclude the approval (e.g., inadequate warning time to evacuate
people from a recreation area).
(3) Excavation or Landfills. The primary consideration in
approving excavations or landfill placements is the preservation of
the flood storage capacity of the project. Therefore, landfill
placements will not be approved unless substitute flood storage is
provided. Proposals for excavation and grading of flowage easement
areas will not be approved if they result in loss of flood control
storage. Approval authority for excavations and landfills 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.
c. Release from Restriction on Human Habitation. Generally,
the restriction on human habitation will not be recommended for
release. Human habitation below the flood control or navigation pool
elevation places an undue limitation on the Congressionally authorized
operation of the project. However, if it can be demonstrated that the
release will not result in a significant threat to human life, health,
or safety, and will not place or suggest any restriction on the
operation of the project, the release may be approved under certain
conditions. As with other structures, such developments must meet the
requirements of national policy on flood plain management as set forth
in Executive Order 11988 and its implementating regulations.
Executive Order 11988 requires consideration of alternatives which
avoid the flood plain whereever practical. Therefore, any landowner
requesting relief from the restriction on human habitation in a flood
plain or project pool must also demonstrate that there is no practical
alternative to the location of the habitable structure. In addition
to satisfying these requirements, if there is any threat to human
life, the proposal for release of the human habitation restriction
will not be recommended for approval. However, if it can be
demonstrated that there would be adequate warning time to evacuate the
structure in the event of a flood that would inundate the site and
that non-flooded egress out of the project area (offsite) then it may
receive approval. Proposals for release of human habitation
restriction must be submitted through the Major Subordinate Command to
HQUSACE for approval by the ASA(CW). The human habitation restriction
is a property right acquired by the Federal Government which must be
released by a deed, including the provision for adequate compensation
for the disposal, in accordance with ER 405-1-12.
11-10. Granting Use of Civil Works Project Real Estate. Lands and
waters of Civil Works projects frequently can, without detriment to
the primary project purposes, also be used to provide many other forms
of public and private benefits. Such uses may take place either under
Corps management or by third parties under the following authorities:
a. 10 U.S.C. 2667 provides for the lease of real and personal
property which is not excess or required for public use. Leases are
limited to five-year terms unless the Assistant Secretary of the Army
(Installations and Logistics) determines that a longer lease term will
promote the national defense or will be in the public interest.
Agricultural and grazing leases are examples of leases issued under
this authority.
b. 16 U.S.C. 460d provides for lease of real property at water
resources development projects when it is determined to be in the
public interest. Generally, these leases are for commercial
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