[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2353 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 2353
To revise certain policies of the Army Corps of Engineers for the
purpose of improving the Corps' community relations, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 27, 2001
Mr. Tancredo (for himself, Mr. Largent, Mr. Bartlett of Maryland, Mr.
Gilchrest, Mr. Terry, and Mr. Hefley) introduced the following bill;
which was referred to the Committee on Transportation and
Infrastructure
_______________________________________________________________________
A BILL
To revise certain policies of the Army Corps of Engineers for the
purpose of improving the Corps' community relations, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Army Corps of Engineers Reform and
Community Relations Improvement Act of 2001''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) The United States Army Corps of Engineers is the
primary Federal agency responsible for developing and managing
the Nation's harbors, waterways, shorelines and water
resources.
(2) The United States has a backlog of more than
$54,000,000,000 for water development projects, $38,000,000,000
of which are for projects that have begun construction or
preconstruction, engineering, and design but not yet been
completed.
(3) The Corps' civil works program budget for construction
of new water development projects in recent years and in the
foreseeable future has been approximately $1,500,000,000.
(4) Due to the large disparity between budget authority for
authorized water resources projects and the actual annual
funding levels, the current method of developing project
construction schedules based upon optimum funding levels is
unrealistic and does not reflect the likely true costs and
benefits of constructing most Corps' projects.
(5) At the current rate of funding for the civil works
construction program, it would take more than 50 years to
eliminate the current backlog, not accounting for the water
development needs of the next 50 years.
(6) It is in the national economic interest for the Corps
to manage the Nation's harbors, waterways, shorelines, and
water resources in the most efficient manner practically
feasible and with the highest level of fiscal discipline.
(b) Purposes.--The purposes of this Act are as follows:
(1) To restore communication and cooperation between the
Army Corps of Engineers and State and local governments.
(2) To improve relations between the Army Corps of
Engineers and communities neighboring its project sites.
(3) To ensure that the Nation's Federal water resources
investments are economically justified.
(4) To reduce the backlog of authorized projects.
(5) To establish new criteria for projects.
(6) To modernize the calculation of costs and benefits by
the Army Corps of Engineers.
(7) To prioritize Army Corps of Engineers construction
spending.
(8) To share the costs of water resources investments with
project beneficiaries.
SEC. 3. COMMUNITY RELATIONS IMPROVEMENT PLAN.
Not later than 1 year after the date of enactment of this Act, the
Secretary of the Army, acting through the Chief of Engineers (in this
Act referred to as the ``Secretary'') shall prepare and transmit to
Congress a report that includes the following:
(1) A list of all federally owned lands under the
jurisdiction of the Secretary.
(2) A list of such lands that no longer serve a project
purpose or that possess no demonstrated compelling program or
project need.
(3) A plan regarding cost-sharing for rehabilitation,
modification, operation, and maintenance of recreation
facilities at water resources projects under the jurisdiction
of the Secretary that are leased by non-Federal interests.
SEC. 4. PUBLIC HEARINGS.
(a) In General.--Before the Secretary or any other public or
private entity commences any work at a water resources project under
the jurisdiction of the Secretary, the Secretary shall hold in the
vicinity of the project a public hearing for the purpose of receiving
public comments on the proposed work and the project.
(b) Hearing as Additional Requirement.--A hearing under this
section shall be in addition to any hearing otherwise required for
compliance with the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) or any other law.
(c) Inclusion of Project Studies.--The comments received in a
public hearing held under this section with respect to a water
resources project shall be included in any feasibility report, general
reevaluation study, environmental impact statement, or other decision
document recommending major construction, rehabilitation, project
modification, or major and substantial change in operating and
management practices prepared for the project.
SEC. 5. INDEPENDENT REVIEW.
(a) Projects Subject to Independent Review.--
(1) In general.--The Secretary shall ensure that
feasibility reports, general reevaluation studies, and
environmental impact statements for each water resources
project described in paragraph (2) are subject to review by an
independent panel of experts established under this section.
(2) Projects subject to review.--A project shall be subject
to review under paragraph (1) if--
(A) the project has an estimated total cost of more
than $25,000,000, including mitigation costs;
(B) the Governor of an affected State requests the
establishment of an independent panel of experts for
the project;
(C) the Director of the United States Fish and
Wildlife Service determines that the project is likely
to have significant adverse impacts on fish or wildlife
after implementation of proposed mitigation plans; or
(D) the Secretary determines that the project is
controversial under paragraph (3).
(3) Controversial projects.--
(A) In general.--The Secretary shall determine that
a project is controversial for purposes of paragraph
(2)(D) if the Secretary finds that--
(i) there is a significant public dispute
as to the size, nature, or effects of the
project; or
(ii) there is a significant public dispute
as to the economic or environmental costs or
benefits of the project.
(B) Written requests.--The Secretary shall
determine whether or not a project is controversial
within 30 days of the date of receipt of a written
request of an interested party or on the initiative of
the Secretary.
(4) Affected state defined.--In paragraph (2)(B), the term
``affected State'' as used with respect to a project means a
State or a part thereof that is at least partially within the
drainage basin in which the project is located and would be
economically or environmentally affected as a consequence of
the project.
(b) Director of Independent Review.--
(1) Appointment.--The Inspector General of the Department
of Army shall appoint in the Office of the Inspector General a
Director of Independent Review (in this section referred to as
the ``Director''). The term of a Director appointed under this
subsection shall be 3 years.
(2) Qualifications.--The Inspector General shall select the
Director from among individuals who are distinguished scholars
in biology, engineering, economics, or another discipline
related to water resources management.
(3) Limitation on appointments.--The Inspector General
shall not appoint an individual to serve as the Director if the
individual has a financial or close professional association
with any organization or group with a strong financial or
organizational interest in a water resources project that, on
the date of appointment, is under construction, in the
preconstruction, engineering, and design phase, or under
feasibility or reconnaissance study by the Army Corps of
Engineers.
(4) Terms.--An individual may not serve for more than 1
term as the Director.
(5) Duties.--The Director shall establish a panel of
experts to review each project subject to review under
subsection (a).
(c) Establishment of Panels.--
(1) In general.--As soon as practicable after the Secretary
selects a preferred alternative for a project subject to review
under subsection (a) in a formal draft feasibility report,
draft general reevaluation report, or draft environmental
impact statement, the Director shall establish a panel of
experts to review the project.
(2) Membership.--A panel of experts established by the
Director for a project shall be composed of not less than 5 and
not more than 9 independent experts who represent a balance of
areas of expertise, including biologists, engineers, and
economists.
(3) Limitation on appointments.--The Director shall not
appoint an individual to serve on a panel of experts for a
project if the individual has a financial or close professional
association with any organization or group with a strong
financial or organizational interest in the project.
(4) Consultation.--The Director shall consult with the
National Academy of Sciences in developing lists of individuals
to serve on panels of experts under this section.
(5) Compensation.--An individual serving on a panel of
experts under this section shall be compensated at a rate of
pay to be determined by the Inspector General.
(6) Travel expenses.--An individual serving on a panel of
experts under this section shall receive travel expenses,
including per diem in lieu of subsistence, as authorized by law
for persons serving intermittently in Government service under
subchapter I of chapter 57 of title 5, United States Code,
while away from their homes and places of business in the
performance of services for the panel of experts.
(d) Duties of Panels.--A panel of experts established for a project
under this section shall--
(1) review each feasibility study, general reevaluation
study, and environmental impact statement prepared for the
project;
(2) assess the adequacy of the economic and scientific
models used by the Secretary in reviewing the project to ensure
that--
(A) multiple methods of economic analysis have been
used, and the best available scientific methods of
analysis have been used; and
(B) any regional effects on navigation systems have
been examined;
(3) receive written and oral comments of a technical nature
concerning the project from the public;
(4) submit to the Secretary a report containing the panel's
economic, engineering, and environmental analysis of the
project, including the panel's conclusions on the feasibility
study, general reevaluation study, or environmental impact
statement with particular emphasis on areas of public
controversy; and
(5) within 30 days after the issuance of a final
feasibility study, final general reevaluation study, or final
environmental impact statement, but prior to the entry of a
record of decision, the independent review panel shall submit
to the Secretary a brief report stating its views on the extent
to which the final analysis adequately addresses issues or
concerns raised by the panel's earlier evaluation.
(e) Duration of Project Reviews.--Not later than 180 days after the
date of establishment of a panel of experts for a project under this
section, the panel shall complete its review of the project and all of
its other duties with respect to the project (other than duties
described in subsection (d)(5)).
(f) Recommendations of Panel.--
(1) Consideration by secretary.--After receiving a report
on a project from a panel of experts under this section and
before entering a final record of decision for the project, the
Secretary shall consider any recommendations contained in the
report and prepare a written explanation for any
recommendations not adopted. Recommendations and findings that
are inconsistent with recommendations and findings of an
independent review panel shall not be entitled to deference in
a judicial proceeding.
(2) Public review; transmittal to congress.--After
receiving a report on a project from a panel of experts under
this section (including a report under subsection (d)(5)), the
Secretary shall--
(A) make a copy of the report (and any written
explanation of the Secretary on recommendations
contained in the report) available for public review
under section 6; and
(B) include a copy of the report (and any such
written explanation) in any report transmitted to
Congress concerning the project.
(g) Costs.--
(1) Limit on cost of review.--The cost of conducting a
review of a project under this section shall not exceed--
(A) $250,000 for a project if the total real cost
in current year dollars of the project is less than
$50,000,000; and
(B) one-half of one percent of the total real cost
in current year dollars of the project if such total
real cost is $50,000,000 or more.
(2) Treatment.--For purposes of paragraph (1), the cost of
conducting an independent review under this section shall be
treated as part of the total cost of the project.
(3) Waiver of limit.--The Secretary may waive a limitation
set forth in paragraph (1) if the Secretary determines that the
waiver is appropriate.
(h) Applicability of Federal Advisory Committee Act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall apply to a panel of
experts established under this section.
SEC. 6. PUBLIC ACCESS TO INFORMATION AND DATA.
(a) In General.--The Secretary shall ensure that all information
and data related to the analysis of a water resources project by the
Corps of Engineers, whether in final or draft form and including all
supporting data and information that the Corps of Engineers has
considered in its analysis, is made available to any person upon
request and, to the maximum extent practicable, to the public on the
Internet.
(b) Types of Information.--Information about a water resources
project to be made available under subsection (a) shall include any
information that has been made available to the project sponsor and all
data used by the Corps of Engineers in its justification and analysis
of the project.
(c) Exception for Trade Secrets.--
(1) In general.--The Secretary shall not make information
available under subsection (a) that the Secretary determines to
be a trade secret of the person or entity that supplied the
information to the Corps of Engineers.
(2) Criteria for trade secrets.--For purposes of this
subsection, the Secretary shall consider information to be a
trade secret only if--
(A) the person or entity that supplied the
information to the Corps of Engineers has not disclosed
the information to any other person or entity, other
than--
(i) an officer or employee of the United
States or a State or local government;
(ii) an employee of such person or entity;
or
(iii) a person or entity that is bound by a
confidentiality agreement, and the person or
entity that supplied the information has taken
reasonable measures to protect the
confidentiality of such information and intends
to continue to take such measures;
(B) the information is not required to be
disclosed, or otherwise made available, to the public
under any other Federal or State law; and
(C) disclosure of the information is likely to
cause substantial harm to the competitive position of
the person or entity that supplied the information.
(d) Report on the Water Resources Construction Backlog.--
(1) In general.--Not later than 1 year after enactment of
this Act, the Secretary shall transmit to Congress a list of
all water resources projects in the construction backlog,
consisting of the uncompleted portion of any project authorized
by law for funding from the Construction, General
appropriations account or the construction portion of the Flood
Control, Mississippi River and Tributaries appropriations
account. Each project on this list shall be accompanied by
information on--
(A) the total real cost in current year dollars of
the project and the fully funded total cost of the
project in current year dollars;
(B) the benefit-to-cost ratio of the project;
(C) the remaining additional benefits and the
remaining additional costs to complete construction of
the project and the ratio of remaining benefits to
remaining costs;
(D) the year the last major studies of the
project's feasibility and designs were completed;
(E) the date of the last year of economic data that
was included in the latest analysis of the project's
feasibility and justification;
(F) the status of each project as either--
(i) reconnaissance;
(ii) preconstruction, engineering, and
design;
(iii) construction; or
(iv) not funded and active, deferred, or
inactive; and
(G) the information described in paragraph (2) for
each particular type of project.
(2) Information for particular project type.--The
information transmitted under paragraph (1) for each of the
following project types shall include the following:
(A) For a flood damage reduction project--
(i) the extent to which the project
reflects national flood damage reduction
priorities as established by the Federal
Emergency Management Agency;
(ii) the level of flood protection provided
and the relative amount of protection provided
to and benefits derived from protecting urban
property and agricultural property; and
(iii) the extent to which the project
restores natural aquatic ecosystem functions
and avoids adverse environmental impacts and
risk.
(B) For a navigation project--
(i)(I) the extent to which the project's
economic benefits are based on existing levels
of traffic rather than projected growth in
traffic; and
(II) the level of certainty in a growth
projection if the justification for the project
is based on such projected growth; and
(ii) the extent of the project's likely
environmental benefits, including extent of
remediation of contaminated sediments or reuse
of dredge material to restore aquatic habitat,
and extent of the project's adverse environmental impacts and risk.
(C) For an environmental restoration project--
(i) the cost effectiveness of the project
in achieving environmental results;
(ii) the extent to which the project
restores natural hydrologic processes and the
spatial extent of aquatic habitat and otherwise
produces self-sustaining environmental
benefits; and
(iii) the extent to which the project
addresses critical national conservation
priorities, including preservation and
enhancement of endangered and threatened
species.
(3) Measurement and reporting.--The Secretary shall use
objective and quantifiable standards for measuring and
reporting the information required in paragraph (2). In any
case in which such information cannot feasibly be quantified,
the required information shall be reported through an objective
description of the project's benefits and impacts.
(4) Availability to the public and updates.--The list and
any information transmitted to Congress under paragraphs (1)
and (2) shall be made available to any person upon request and
to the public on the Internet. The list shall also be updated
and retransmitted to Congress annually.
(5) Definitions.--In this subsection, the following
definitions apply:
(A) Active.--The term ``active'', as used with
respect to a project, means the project has received
preconstruction, engineering, and design or
construction funding, is economically justified, and is
supported by the non-Federal sponsor.
(B) Deferred.--The term ``deferred'', as used with
respect to a project, means the project has doubtful
economic justification, requires restudy to determine
its economic feasibility, or is a project for which the
non-Federal sponsor is currently unable to provide
required cooperation.
(C) Inactive.--The term ``inactive'', as used with
respect to a project, means the project is not
economically justified because costs outweigh projected
benefits, no longer meets current and prospective
needs, or is not actively supported by the non-Federal
sponsor.
SEC. 7. MODERN PROJECT CRITERIA.
(a) Negative Benefits.--
(1) Incorporation.--When evaluating a civil works project's
national economic development benefits, the Secretary shall
incorporate into the benefit-to-cost analysis for the project
the negative benefits of the project activities under study,
including any negative benefits of such activities on any
federally managed lands or infrastructure and on private lands
enrolled in the conservation reserve program or wetlands
reserve program.
(2) Definition.--In this subsection, the term ``negative
benefits'' includes net adverse impacts to flood control,
navigation, recreation (including, but not limited to, hunting,
fishing, tourism, boating, and wildlife watching), water
supply, irrigation, hydropower, and any other public benefit
derived from a Federal waterway or adjacent lands.
(b) Efficient Management and Operating Practices.--
(1) In general.--The Secretary shall not include in the
benefits base for justifying a water resources project any
benefits that could reasonably be achieved through better and
more efficient management or operating practices by a Federal
agency or the project beneficiaries.
(2) Evaluations.--In any feasibility report, general
reevaluation study, environmental impact statement, or other
decision document recommending major construction,
rehabilitation, or project modification, the Secretary shall
include a management and operating practices evaluation that
takes into consideration the requirements of paragraph (1).
(c) Limitation Upon Competition With the Private Sector.--
(1) In general.--Any civil works project the primary
benefits of which are not for flood damage reduction,
navigation, or environmental restoration, shall not be
recommended for construction by the Secretary if--
(A) there exist corporations or other
nongovernmental entities in the United States with
significant relevant experience in the particular
project activity under consideration by the Secretary;
or
(B) similar project activities have been undertaken
by nongovernmental entities within the last 10 years.
(2) Evaluations.--In any feasibility report, general
reevaluation study, environmental impact statement or other
decision document recommending major construction,
rehabilitation, or modification of a civil works project, the
Secretary shall include a private sector competition evaluation
that takes into consideration the requirements of paragraph
(1).
(d) Recommendation of Projects.--Beginning in fiscal year 2003, in
the case of a civil works project that is subject to a benefit-cost
analysis (including any project that has been contingently authorized
subject to a favorable report from the Chief of Engineers), the
Secretary shall only recommend the project for authorization by
Congress, and shall only choose the project as a recommended
alternative in any record of decision or environmental impact statement
if the project, in addition to meeting any other criteria required by
law, has projected benefits that are at least 1.5 times as great as the
project's estimated total cost.
(e) Realistic Construction Scheduling.--Not later than 1 year after
the date of enactment of this Act, the Secretary shall revise, in
consultation with the National Academy of Sciences, the principles and
guidelines of the Corps of Engineers to--
(1) direct the Corps to give preference in economic
analyses to project alternatives that maximize the rate of
return of national economic development benefits to investment
over alternatives that maximize net national economic
development benefits;
(2) provide guidance on how to implement paragraph (1); and
(3) require the Corps to document and report to the
Secretary incremental components of project alternatives and
their effect on the overall benefits and costs of a project.
SEC. 8. REGIONAL IMPACTS OF PORT AND HARBOR PROJECTS.
(a) In General.--It is the intent of Congress that federally funded
port maintenance and expansion projects maximize national economic
development goals while minimizing adverse regional economic and
environmental impacts.
(b) Principles and Guidelines.--Not later than 1 year after the
date of enactment of this Act, the Secretary shall revise, in
consultation with the National Academy of Sciences, the principles and
guidelines of the Corps of the Engineers to provide that feasibility
studies, general reevaluation studies, and environmental impact
statements for a port or harbor project give detailed and thorough
consideration to the project's--
(1) economic impacts upon other United States ports in the
same region; and
(2) cumulative environmental impacts within the region.
(c) Regions.--The regions referred to in subsection (b) are the
North Atlantic, South Atlantic, Great Lakes, Gulf of Mexico, South
Pacific, and North Pacific regions of the United States.
SEC. 9. REDUCTION OF THE CONSTRUCTION BACKLOG.
Section 1001 of the Water Resources Development Act of 1986 (33
U.S.C. 579a) is amended to read as follows:
``SEC. 1001. PROJECT DEAUTHORIZATIONS.
``(a) Inactive Projects.--
``(1) List.--The Secretary shall transmit annually to
Congress a list of inactive projects.
``(2) Deauthorization.--Any inactive project shall not be
authorized after the last day of the 1-year period beginning on
the date of transmittal of the list under paragraph (1) that
includes such project unless Congress takes action to
reauthorize the project or separable element during such 1-year
period.
``(3) Definition.--In this subsection, the term `inactive
project' means a project or a separate element of a project
that is not economically justified because costs outweigh
projected benefits, no longer meets current and prospective
needs, or is not actively supported by the non-Federal sponsor.
``(b) Projects Never Under Construction.--
``(1) List.--The Secretary shall transmit annually to
Congress a list of projects and separable elements of projects
not subject to subsection (a) that have been authorized for
construction, but for which no funds have been obligated for
construction of the project or separable element during the 4
consecutive fiscal years preceding the transmittal of such
list.
``(2) Deauthorization.--Any water resources project
authorized for construction and any separable element of such a
project not subject to subsection (a) shall not be authorized
after the last day of the 7-year period beginning on the date
of the project or separable element's most recent authorization
or reauthorization unless during such period funds are
obligated for construction of the project or separable element.
``(c) Projects Where Construction Has Been Suspended.--
``(1) List.--The Secretary shall transmit annually to
Congress a list of projects and separable elements of projects
not subject to subsection (a) that have been authorized for
construction, and for which funds have been obligated for
construction of the project or separable element but not during
the 2 consecutive fiscal years preceding the date of
transmittal of such list.
``(2) Deauthorization.--Any water resources project and any
separable element of such a project not subject to subsection
(a) for which funds have been obligated for construction of the
project or separable element shall not be authorized if funds
appropriated specifically for construction of the project or
separable element (either in statute or in the accompanying
legislative report language) are not obligated for construction
of the project or separable element during any 5 consecutive
fiscal years subsequent to the last fiscal year in which funds
were obligated for construction of the project.
``(d) Congressional Notifications.--Upon transmission of a list
under subsection (a), (b), or (c), the Secretary shall notify each
Senator in whose State, and each Member of the House of Representatives
in whose district, a project or separable element on the list is or
would be located.
``(e) Final Deauthorization List.--The Secretary shall publish
annually in the Federal Register a list of all projects or separable
elements deauthorized under subsections (a), (b), and (c).
``(f) Definitions.--
``(1) Construction of the project or separable element.--In
this section, the term `construction of a project or separable
element of a project' means--
``(A) as used with respect to a nonstructural flood
control project, the acquisition of lands, easements,
and rights-of-way primarily to relocate structures or
the performance of physical work under a construction
contract for other nonstructural measures;
``(B) as used with respect to an environmental
protection and restoration project, the acquisition of
lands, easements, and rights-of-way primarily to
facilitate the restoration of wetlands or similar
habitats or the performance of physical work under a
construction contract to modify existing project
facilities or to construct new environmental protection
and restoration measures; and
``(C) as used with respect to any water resources
project that is not described in subparagraph (A) or
(B) or both, the performance of physical work under a
construction contract.
``(2) Physical work under a construction contract.--As used
in this subsection, in no case shall the term `physical work
under a construction contract' include activities related to
project planning, engineering and design, relocation, or the
acquisition of lands, easements, and rights-of-way.''.
SEC. 10. COST-SHARING.
(a) Flood Damage Reduction.--Subsections (a) and (b) of section 103
of the Water Resources Development Act of 1986 (33 U.S.C. 2213(a) and
(b)) are each amended by striking ``35'' and inserting ``50''.
(b) Inland Waterways Construction.--Section 102(a) of the Water
Resources Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
(1) by striking ``One-half of the costs of construction''
and inserting ``Forty-five percent of the costs of
construction''; and
(2) by striking ``One-half of such costs shall be paid only
from amounts appropriated from the Inland Waterways Trust
Fund.'' and inserting ``Forty-five percent of such costs shall
be paid only from amounts appropriated from the Inland
Waterways Trust Fund. Ten percent of such costs shall be paid
by non-Federal cost-sharing partners and or the affected
States.''.
(c) Inland Waterways Operations and Maintenance.--Section 102(b) of
the Water Resources Development Act of 1986 (33 U.S.C. 2212(b)) is
amended by striking ``100 percent'' and inserting ``87.5 percent. 12.5
percent of the costs of operation and maintenance shall be paid only
from amounts appropriated from the Inland Waterway Trust Fund.''.
(d) Beach Replacement.--Section 103(d)(2) of the Water Resources
Development Act of 1986 (33 U.S.C. 2213(d)(2)) is amended by striking
subparagraph (A) and inserting the following:
``(A) In general.--In the case of a project
authorized for construction after December 31, 1999, or
for which a feasibility study is completed after that
date, the non-Federal cost of the periodic nourishment
of the project or any measure for shore protection or
beach erosion control for the project shall be 65
percent.''.
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