[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1987 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 1987

    To provide for reform of the Corps of Engineers, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 5, 2002

Mr. Smith of New Hampshire (for himself, Mr. Feingold, and Mr. McCain) 
introduced the following bill; which was read twice and referred to the 
               Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
    To provide for reform of the Corps of Engineers, 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 ``Corps of Engineers Modernization and 
Improvement Act of 2002''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Academy.--The term ``Academy'' means the National 
        Academy of Sciences.
            (2) Corps.--The term ``Corps'' means the Corps of 
        Engineers.
            (3) Principles and guidelines.--The term ``Principles and 
        Guidelines'' means the principles and guidelines of the Corps 
        for water resources projects (consisting of Engineer Regulation 
        1105-2-100 and Engineer Pamphlet 1165-2-1).
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

SEC. 3. PROJECT BACKLOG.

    (a) Review and Report on Water Resources Construction Backlog.--
            (1) Definitions.--In this subsection:
                    (A) Active.--The term ``active'', with respect to a 
                project, means that--
                            (i) the project is economically justified;
                            (ii) the project has received funding for--
                                    (I) preconstruction engineering and 
                                design; or
                                    (II) construction; and
                            (iii) the non-Federal interests with 
                        respect to the project have demonstrated 
                        willingness and the ability to provide the 
                        required non-Federal share.
                    (B) Deferred.--The term ``deferred'', with respect 
                to a project, means that the project--
                            (i) has doubtful economic justification;
                            (ii) requires restudy to determine the 
                        economic feasibility of the project; or
                            (iii) is a project for which the non-
                        Federal interests are unable to provide 
                        required cooperation.
                    (C) Inactive.--The term ``inactive'', with respect 
                to a project, means that--
                            (i) the project is not economically 
                        justified;
                            (ii) the project no longer meets current 
                        and prospective needs as described in a 
                        feasibility report or general reevaluation 
                        report; or
                            (iii) the non-Federal interests with 
                        respect to the project have not demonstrated 
                        willingness or the ability to provide the 
                        required non-Federal share.
                    (D) Project.--The term ``project'' means a water 
                resources project, or a separable element of a water 
                resources project, that is authorized by law for 
                funding from--
                            (i) the Construction, General, 
                        appropriations account; or
                            (ii) the construction portion of the Flood 
                        Control, Mississippi River and Tributaries, 
                        appropriations account.
            (2) Study.--
                    (A) In general.--Not later than 1 year after the 
                date of enactment of this Act, the Secretary shall 
                submit to the Committee on Environment and Public Works 
                of the Senate and the Committee on Transportation and 
                Infrastructure of the House of Representatives a study 
                consisting of--
                            (i) the list described in subparagraph (B); 
                        and
                            (ii) the information described in 
                        subparagraph (C).
                    (B) List.--The list referred to in subparagraph (A) 
                is a list of all authorized water resources projects--
                            (i) that have not been commenced; or
                            (ii) the construction of which has not been 
                        completed.
                    (C) Required information.--Each project on the list 
                described in subparagraph (B) shall be accompanied by 
                information on--
                            (i) the primary purpose of the project;
                            (ii) the year in which construction of the 
                        project was commenced;
                            (iii) the total cost of the project in 
                        current year dollars;
                            (iv) the cost-benefit ratio of the project, 
                        determined based on current discount rates;
                            (v) the estimated annual benefits and 
                        annual costs of the project;
                            (vi) the remaining additional benefits and 
                        the remaining additional costs to complete 
                        construction of the project (including the 
                        ratio that remaining benefits bears to 
                        remaining costs);
                            (vii)(I) the year during which the most 
                        recent major studies of the feasibility and 
                        design of the project were completed; and
                            (II) the year during which the most recent 
                        environmental impact statement or environmental 
assessment for the project was completed;
                            (viii) the date of the last year for which 
                        economic data that was included in the most 
                        recent analysis of the feasibility and 
                        justification of the project was collected;
                            (ix) the status of each project as--
                                    (I) reconnaissance, preconstruction 
                                engineering and design, or 
                                construction; and
                                    (II) active, deferred, or inactive; 
                                and
                            (x) the matters described in paragraph (3) 
                        for each particular type of project.
            (3) Information for particular project type.--The study 
        under paragraph (2) shall include--
                    (A) in the case of 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)(I) the level of flood protection 
                        provided; and
                            (II) to the maximum extent practicable, the 
                        extent to which the project is based on 
                        projected growth and the basis for each 
                        projection of growth; and
                            (iii) the extent to which the project--
                                    (I) restores natural aquatic 
                                ecosystem functions; and
                                    (II) avoids adverse environmental 
                                impacts and risk before implementation 
                                of mitigation activities;
                    (B) in the case of a navigation project--
                            (i)(I) the extent to which the economic 
                        benefits of the project are based on existing 
                        levels of commercial traffic rather than 
                        projected growth in commercial traffic; and
                            (II) to the maximum extent practicable, the 
                        extent to which the project is based on 
                        projected growth and the basis for each 
                        projection of growth; and
                            (ii) the extent of the likely environmental 
                        benefits of the project, including the extent 
                        of--
                                    (I) remediation of contaminated 
                                sediments, or reuse of dredged 
                                material, to restore aquatic habitat; 
                                and
                                    (II) adverse environmental impacts 
                                and risks of the project; and
                    (C) in the case of an environmental restoration 
                project--
                            (i) the extent to which the project--
                                    (I) restores natural hydrologic 
                                processes and the spatial extent of 
                                aquatic habitat; and
                                    (II) otherwise produces self-
                                sustaining environmental benefits; and
                            (ii) the extent to which the project 
                        addresses critical national conservation 
                        priorities, including preservation and 
                        protection of endangered and threatened species 
                        or habitat of endangered and threatened 
                        species.
            (4) Measurement and reporting.--
                    (A) In general.--The Secretary shall use objective 
                and quantifiable standards for measuring and reporting 
                the information required to be submitted under 
                paragraph (3).
                    (B) Alternative method of reporting.--In any case 
                in which the information required to be submitted under 
                subparagraph (B)(ii) or (C) of paragraph (3) cannot be 
                quantified, the information shall be reported through 
                an objective description of the benefits and impacts of 
                the applicable project.
            (5) Availability to the public.--The study submitted to 
        Congress under paragraph (2) shall be made available to--
                    (A) any person on request; and
                    (B) the public on the Internet.
    (b) Project Deauthorizations.--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) Definitions.--In this section:
            ``(1) Construction of a project.--The term `construction of 
        a project' means--
                    ``(A) with respect to a flood control project--
                            ``(i) the acquisition of land, an easement, 
                        or a right-of-way; or
                            ``(ii) the performance of physical work 
                        under a construction contract;
                    ``(B) with respect to an environmental protection 
                and restoration project--
                            ``(i) the acquisition of land, an easement, 
                        or a right-of-way primarily to facilitate the 
                        restoration of wetland or similar habitat; or
                            ``(ii) the performance of physical work 
                        under a construction contract--
                                    ``(I) to modify an existing project 
                                facility; or
                                    ``(II) to construct a new 
                                environmental protection or restoration 
                                measure;
                    ``(C) with respect to a shore protection project--
                            ``(i) the acquisition of land, an easement, 
                        or a right-of-way; or
                            ``(ii) the performance of physical work 
                        under a construction contract for a structural 
                        or a nonstructural measure; and
                    ``(D) with respect to any project that is not 
                described in subparagraph (A), (B), or (C), the 
                performance of physical work under a construction 
                contract.
            ``(2) Inactive.--The term `inactive', with respect to a 
        project, means that--
                    ``(A) the project is not economically justified;
                    ``(B) the project no longer meets current and 
                prospective needs as described in a feasibility report 
                or general reevaluation report;
                    ``(C) the non-Federal interests with respect to the 
                project have not demonstrated willingness or the 
                ability to provide the required non-Federal share; or
                    ``(D)(i) the project most recently received, under 
                an Act of Congress, authorization or reauthorization 
                for construction more than 25 years before the date of 
                enactment of this subparagraph; and
                    ``(ii) an amount that is less than 33 percent of 
                the estimated total costs of the project (excluding 
                costs of preconstruction engineering and design) has 
                been obligated for the project as of the date of 
                enactment of this subparagraph.
            ``(3) Physical work under a construction contract.--The 
        term `physical work under a construction contract' does not 
        include any activity relating to--
                    ``(A) project planning;
                    ``(B) engineering and design;
                    ``(C) relocation; or
                    ``(D) the acquisition of land, an easement, or a 
                right-of-way.
            ``(4) Project.--The term `project' means a water resources 
        project, or a separable element of a water resources project, 
        that is authorized by law for funding from--
                    ``(A) the Construction, General, appropriations 
                account; or
                    ``(B) the construction portion of the Flood 
                Control, Mississippi River and Tributaries, 
                appropriations account.
    ``(b) Inactive Projects.--
            ``(1) List.--Not later than December 31, 2003, and 
        biennially thereafter, the Secretary shall submit to Congress a 
        list of inactive projects.
            ``(2) Deauthorization.--An inactive project shall be 
        deauthorized effective beginning 1 year after the date of 
        submission of a list under paragraph (1) that includes the 
        project unless, during that 1-year period, Congress 
        reauthorizes the project in accordance with the Corps of 
        Engineers Modernization and Improvement Act of 2002 and the 
        amendments made by that Act.
    ``(c) Projects Never Under Construction.--
            ``(1) List.--The Secretary shall annually submit to 
        Congress a list of projects that have been authorized for 
        construction, but for which no Federal funds have been 
        obligated for construction during the 3 consecutive fiscal 
        years preceding the fiscal year in which the list is submitted.
            ``(2) Deauthorization.--A project authorized for 
        construction that is not subject to subsection (b) shall be 
        deauthorized effective beginning 5 years after the date of the 
        most recent authorization or reauthorization of the project 
        unless, during that 5-year period, Federal funds are obligated 
        for construction of the project.
    ``(d) Projects for Which Construction Has Been Suspended.--
            ``(1) List.--The Secretary shall annually submit to 
        Congress a list of projects--
                    ``(A) that have been authorized for construction; 
                and
                    ``(B) for which no Federal funds have been 
                obligated for construction during the 2 consecutive 
                fiscal years preceding the date of submission of the 
                list.
            ``(2) Deauthorization.--A project that is not subject to 
        subsection (b) but for which Federal funds have been obligated 
        for construction of the project shall be deauthorized if 
        Federal funds appropriated specifically for construction of the 
        project, as indicated in an Act of Congress or in accompanying 
        legislative report language, are not obligated for construction 
        of the project during the period of 3 fiscal years following 
        the last fiscal year in which Federal funds were obligated for 
        construction of the project.
    ``(e) Completed Projects.--Subsections (b), (c), and (d) shall not 
apply--
            ``(1) in the case of a beach nourishment project, after 
        initial construction of the project has been completed; or
            ``(2) in the case of any other project, after construction 
        of the project has been completed.
    ``(f) Congressional Notifications.--On submission of a list under 
subsection (b), (c), or (d), the Secretary shall notify each Senator in 
whose State, and each Member of the House of Representatives in whose 
district, a project on the list is or would be located.
    ``(g) Final Deauthorization List.--The Secretary shall annually 
publish in the Federal Register a list of all projects deauthorized 
under subsections (b), (c), and (d).''.
    (c) Waterways.--
            (1) Report by academy.--
                    (A) In general.--Not later than 1 year after the 
                date of enactment of this Act, the Secretary shall 
                enter into a contract with the Academy to prepare a 
                report on waterways in the Inland Waterways System.
                    (B) Contents of report.--The report shall--
                            (i) review the Inland Waterways System;
                            (ii) provide data on the commercial traffic 
                        being carried by each waterway in the System as 
                        of the date of the report;
                            (iii) provide an analysis of the extent to 
                        which prior projections of the commercial 
                        traffic carried by each waterway in the System 
                        were accurate; and
                            (iv) based on the information provided 
                        under clauses (ii) and (iii)--
                                    (I) identify underused waterways in 
                                the System;
                                    (II) propose new economic and 
                                environmental uses for underused 
                                waterways;
                                    (III) describe statutory and 
                                administrative reforms that are needed 
                                to ease the transition from the current 
                                authorized uses of the System to new 
                                economic and environmental uses of the 
                                System; and
                                    (IV) recommend which waterways in 
                                the System should be decommissioned.
            (2) Decommissioning mechanism for underused waterways.--Not 
        later than 1 year after the date of enactment of this Act, the 
        Secretary shall by regulation establish a mechanism for the 
        decommissioning of waterways that--
                    (A) are no longer economically justified, based on 
                commercial traffic and current discount rates; or
                    (B) are no longer in the national interest.
    (d) Report on Prioritization of Projects.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Water Resources Council established 
        under title I of the Water Resources Planning Act (42 U.S.C. 
        1962a et seq.) shall submit to Congress a report that 
        prioritizes, within each type of water resources project 
        specified in paragraph (2), authorized water resources projects 
        of the Corps based on the extent to which each water resources 
        project--
                    (A) is providing, or may provide, national 
                benefits;
                    (B) has a cost-benefit ratio of 1.5 or greater, 
                determined based on current discount rates; and
                    (C) meets the criteria for the particular type of 
                project that are specified in paragraph (2).
            (2) Prioritization within each particular project type.--
        The criteria referred to in paragraph (1)(C) are that--
                    (A) in the case of a flood damage reduction 
                project, the project--
                            (i) reflects national flood damage 
                        reduction priorities established by the Federal 
                        Emergency Management Agency;
                            (ii)(I) provides a 100-year or greater 
                        level of flood protection; and
                            (II) provides a high level of protection 
                        to, and benefits derived from, protecting urban 
                        property;
                            (iii)(I) restores natural aquatic ecosystem 
                        functions; and
                            (II) avoids adverse environmental impacts 
                        and risk; and
                            (iv) contains nonstructural features;
                    (B) in the case of a navigation project, the 
                project--
                            (i)(I) provides economic benefits based on 
                        existing levels of commercial traffic rather 
                        than projected growth in commercial traffic; 
                        and
                            (II) has a high level of certainty in a 
                        growth projection, if the justification for the 
                        project is based on projected growth; and
                            (ii) provides significant environmental 
                        benefits, including--
                                    (I) remediation of contaminated 
                                sediments or reuse of dredged material 
                                to restore aquatic habitat; and
                                    (II) low adverse environmental 
                                impacts and risks of the project; and
                    (C) in the case of an environmental restoration 
                project, the project--
                            (i)(I) restores natural hydrologic 
                        processes and the spatial extent of aquatic 
                        habitat; and
                            (II) otherwise produces self-sustaining 
                        environmental benefits; and
                            (ii) addresses critical national 
                        conservation priorities, including preservation 
                        and protection of endangered and threatened 
                        species or habitat of endangered and threatened 
                        species.
    (e) Reduction of Mission Creep.--
            (1) Environmental infrastructure projects.--Each 
        environmental infrastructure project that is authorized to be 
        carried out by the Secretary, and that, as of the date of 
        enactment of this Act, has not received any Federal funding, is 
        deauthorized.
            (2) Municipal and industrial water supply.--Each municipal 
        and industrial water supply project carried out at any Federal 
        expense is deauthorized.
            (3) Irrigation.--Each project that has the primary purpose 
        of providing agricultural water supply, and that is authorized 
        to be carried out by the Secretary, is deauthorized.
            (4) School construction.--Beginning on the date of 
        enactment of this Act, the Secretary shall not enter into any 
        contract or other agreement (including any contract or other 
        agreement under the Support for Others Program of the Corps) to 
        construct or renovate any school in the United States, 
        excluding any school on a military base or in support of a 
        military function.
    (f) Projects Without Chief's Reports.--
            (1) Point of order.--It shall not be in order in the Senate 
        to consider any bill, amendment, motion, or conference report 
        that authorizes a water resources project unless a final report 
        from the Chief of Engineers recommending the water resources 
        project, or an alternative to the water resources project, has 
        been submitted to Congress at least 30 days before the date of 
        consideration of the bill, amendment, motion, or conference 
        report.
            (2) Waiver.--This subsection may be waived or suspended in 
        the Senate only by the affirmative vote of three-fifths of the 
Members, duly chosen and sworn.

SEC. 4. COST-BENEFIT RATIO.

    (a) Recommendation of Projects.--Beginning in fiscal year 2003, in 
the case of a water resources project that is subject to a cost-benefit 
analysis, the Secretary may recommend the project for authorization by 
Congress, and may choose the project as a recommended alternative in 
any record of decision or environmental impact statement, only 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 
estimated total costs of the project, based on current discount rates.
    (b) Review and Deauthorization of Projects.--
            (1) Review.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary shall review each water 
        resources project described in paragraph (2) to determine 
        whether the projected benefits of the project are less than 1.5 
        times as great as the estimated total costs of the project.
            (2) Projects subject to review.--A water resources project 
        shall be subject to review under paragraph (1) if--
                    (A) the project was authorized before the date on 
                which the review is commenced;
                    (B) the project is subject to a cost-benefit 
                analysis; and
                    (C) an amount that is less than 33 percent of the 
                estimated total costs of the project (excluding costs 
                of preconstruction engineering and design) has been 
                obligated.
            (3) Deauthorizations.--
                    (A) In general.--On completion of the review under 
                paragraph (1), the Secretary shall submit to Congress a 
                list that describes each water resources project the 
                projected benefits of which are less than 1.5 times as 
                great as the estimated total costs of the project.
                    (B) Projects.--A project included on the list under 
                subparagraph (A) shall be deauthorized effective 
                beginning 3 years after the date of submission of the 
                list to Congress unless, during that 3-year period, 
                Congress reauthorizes the project.
            (4) Deauthorized projects for which construction has been 
        commenced.--In the case of a water resources project that is 
        deauthorized under paragraph (3) and for which construction 
        (other than preconstruction engineering and design) has been 
        commenced, the Secretary may take such actions as are necessary 
        with respect to the project to protect public health and safety 
        and the environment.
    (c) Exclusion of Elements From Benefit-Cost Analysis.--Section 
308(a) of the Water Resources Development Act of 1990 (33 U.S.C. 
2318(a)) is amended--
            (1) in paragraph (1)(B), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(3) any projected benefit attributable to any increase in 
        the value of privately owned property, increase in the quantity 
        of privately owned property, or increase in the value of 
        privately owned services, that arises from the draining, 
        reduction, or elimination of wetland.''.

SEC. 5. PRINCIPLES AND GUIDELINES.

    (a) Realistic Construction Scheduling.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Secretary, in consultation with the 
        Academy and appropriate Federal agencies, shall revise the 
        Principles and Guidelines to factor into the cost-benefit 
        analysis for each water resources project a more realistic 
        expected timeframe for completion of construction of the water 
        resources project.
            (2) Considerations.--The revision under paragraph (1) shall 
        reflect--
                    (A)(i) the impact of the large number of authorized 
                water resources projects--
                            (I) that have not been commenced; or
                            (II) the construction of which has not been 
                        completed; and
                    (ii) the resulting impracticability of assuming 
                that Congress will fund the water resources project as 
                if there were no budget constraints; and
                    (B) the levels of appropriations from the 
                Construction, General, appropriations account for 
                similar water resources projects during the most recent 
                5 fiscal years.
    (b) Regional Impacts of Port and Harbor Projects.--
            (1) Definition of region.--In this subsection, the term 
        ``region'', with respect to the United States, means--
                    (A) the North and South Atlantic region;
                    (B) the Great Lakes region;
                    (C) the Gulf of Mexico region; and
                    (D) the North and South Pacific region.
            (2) Revision.--Not later than 1 year after the date of 
        enactment of this Act, the Secretary, in consultation with the 
        Academy, shall revise the Principles and Guidelines to require 
        that feasibility studies, general reevaluation studies, and 
        environmental impact statements for a port or harbor project 
        include detailed and thorough consideration of--
                    (A) economic impacts of the project on other United 
                States ports in the same region;
                    (B) cumulative environmental impacts of the project 
                within the region; and
                    (C) cumulative impacts of the project on 
                overcapacity in the region.
            (3) Consideration of other port or harbor projects under 
        construction or study.--In applying the Principles and 
        Guidelines as revised under paragraph (2) with respect to a 
        port or harbor project, the Secretary shall take into 
        consideration other port or harbor projects in the region that 
        are under construction or under study (other than a 
        reconnaissance study).
    (c) Congressional Statement of Objectives.--Section 209 of the 
Flood Control Act of 1970 (42 U.S.C. 1962-2) is amended to read as 
follows:

``SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

    ``(a) In General.--It is the intent of Congress that economic 
development and environmental protection and restoration be co-equal 
goals of water resources planning and development.
    ``(b) Revision of Principles and Guidelines.--Not later than 1 year 
after the date of enactment of the Corps of Engineers Modernization and 
Improvement Act of 2002, the Secretary of the Army, in consultation 
with the National Academy of Sciences, shall revise the principles and 
guidelines of the Corps of Engineers for water resources projects 
(consisting of Engineer Regulation 1105-2-100 and Engineer Pamphlet 
1165-2-1)--
            ``(1) to provide for the consideration of environmental 
        restoration costs under economic models of the Corps;
            ``(2) to incorporate new techniques in risk and uncertainty 
        analysis;
            ``(3) to eliminate biases and disincentives for 
        nonstructural flood damage reduction projects;
            ``(4) to incorporate new analytical techniques;
            ``(5) to encourage, to the maximum extent practicable, the 
        restoration of aquatic ecosystems; and
            ``(6) to ensure that water resources projects are justified 
        by benefits that accrue to the public at large and not only to 
        a limited number of private businesses.
    ``(c) Revision of Guidance.--The Secretary of the Army shall revise 
the Guidance for Conducting Civil Works Planning Studies (ER 1105-2-
100) to comply with this section.
    ``(d) Applicability to Outdated Unconstructed Projects.--
            ``(1) In general.--After carrying out subsection (c), the 
        Secretary shall not commence or continue with construction of 
        any water resources project, or separable element of a water 
        resources project, described in paragraph (2) until such time 
        as a general reevaluation study that evaluates a full range of 
        alternatives demonstrates that the water resources project or 
        separable element meets all project criteria and requirements 
        (including the revisions under subsections (b) and (c)) that 
        are applicable at the time at which the general reevaluation 
        study is commenced.
            ``(2) Projects and elements.--A water resources project or 
        separable element referred to in paragraph (1) is a project or 
        element--
                    ``(A) that has been authorized for 10 years or 
                more; and
                    ``(B) on which an amount that is less than 15 
                percent of the estimated total costs of the project or 
                element (excluding costs of preconstruction engineering 
                and design) has been obligated.''.

SEC. 6. INDEPENDENT REVIEW.

    (a) Definitions.--In this section:
            (1) Affected state.--The term ``affected State'', with 
        respect to a water resources project, means a State or portion 
        of a State that--
                    (A) is located, at least partially, within the 
                drainage basin in which the project is carried out; and
                    (B) would be economically or environmentally 
                affected as a result of the project.
            (2) Director.--The term ``Director'' means the Director of 
        Independent Review appointed under subsection (c)(1).
    (b) Projects Subject to Independent Review.--
            (1) In general.--The Secretary shall ensure that each 
        feasibility report, general reevaluation report, and 
        environmental impact statement for each water resources project 
        described in paragraph (2) is subject to review by an 
        independent panel of experts established under this section.
            (2) Projects subject to review.--A water resources 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 or the Director of the National Marine 
                Fisheries Service determines that the project is likely 
                to have significant adverse impacts on fish or wildlife 
                even if any proposed mitigation plans are carried out;
                    (D) the Administrator of the Environmental 
                Protection Agency determines that the project is likely 
                to have a significant adverse impact on the 
                environment; or
                    (E) the Secretary determines under paragraph (3) 
                that the project is controversial.
            (3) Controversial projects.--
                    (A) In general.--The Secretary shall determine that 
                a water resources project is controversial for the 
                purposes of paragraph (2)(E) if the Secretary finds 
                that--
                            (i) there is a significant public dispute 
                        as to the size, nature, or effects of the 
                        project;
                            (ii) there is a significant public dispute 
                        as to the economic or environmental costs or 
                        benefits of the project; or
                            (iii) there is a significant public dispute 
                        as to the benefits to the communities affected 
                        by the project of a project alternative that--
                                    (I) was not the focus of the 
                                feasibility report, general 
                                reevaluation report, or environmental 
                                impact statement for the project; or
                                    (II) was not considered in the 
                                feasibility report, general 
                                reevaluation report, or environmental 
                                impact statement for the project.
                    (B) Written requests.--Not later than 30 days after 
                the date on which the Secretary receives a written 
                request of an interested party, or on the initiative of 
                the Secretary, the Secretary shall determine whether a 
                project is controversial.
    (c) Director of Independent Review.--
            (1) Appointment.--The Director of the Office of Management 
        and Budget shall appoint in the Office of the Inspector General 
        of the Department of the Army a Director of Independent Review.
            (2) Qualifications.--The Director of the Office of 
        Management and Budget shall select the Director from among 
        individuals who are distinguished experts in biology, 
        hydrology, engineering, economics, or another discipline 
        relating to water resources management.
            (3) Limitation on appointments.--The Director of the Office 
        of Management and Budget shall not appoint an individual to 
        serve as the Director if the individual has a financial 
        interest in or close professional association with any entity 
        with a strong financial interest in a water resources project 
        that, on the date of appointment, is--
                    (A) under construction;
                    (B) in the preconstruction engineering and design 
                phase; or
                    (C) under feasibility or reconnaissance study by 
                the Corps.
            (4) Terms.--
                    (A) In general.--The term of a Director appointed 
                under this subsection shall be 6 years.
                    (B) Term limit.--An individual may serve as the 
                Director for not more than 2 nonconsecutive terms.
            (5) Duties.--The Director shall establish a panel of 
        experts to review each water resources project that is subject 
        to review under subsection (b).
    (d) Establishment of Panels.--
            (1) In general.--After the Secretary selects a preferred 
        alternative for a water resources project subject to review 
        under subsection (b) 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 nor 
        more than 9 independent experts, including 1 or more 
        biologists, engineers, and economists, who represent a range of 
        areas of expertise.
            (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 interest in or close 
        professional association with any entity with a strong 
        financial interest in the project.
            (4) Consultation.--The Director may consult with the 
        Academy 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.--A member of a panel of experts under 
        this section shall be allowed travel expenses, including per 
        diem in lieu of subsistence, at rates authorized for an 
        employee of an agency under subchapter I of chapter 57 of title 
        5, United States Code, while away from the home or regular 
        place of business of the member in the performance of the 
        duties of the panel.
    (e) Duties of Panels.--A panel of experts established for a water 
resources project under this section shall--
            (1) review each feasibility report, general reevaluation 
        report, 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) the best available economic and scientific 
                methods of analysis have been used; and
                    (B) any regional effects on navigation systems have 
                been examined;
            (3) receive from the public written and oral comments 
        concerning the project;
            (4) not later than the deadline established under 
        subsection (f), submit to the Secretary a report concerning the 
        economic, engineering, and environmental analysis of the 
        project, including the conclusions of the panel, with 
        particular emphasis on areas of public controversy, with 
        respect to the feasibility report, general reevaluation report, 
        or environmental impact statement; and
            (5) not later than 30 days after the date of issuance of a 
        final feasibility report, final general reevaluation report, or 
        final environmental impact statement, but prior to the entry of 
        a record of decision, submit to the Secretary a brief report 
        stating the views of the panel on the extent to which the final 
        analysis adequately addresses issues or concerns raised by each 
        earlier evaluation by the panel.
    (f) Duration of Project Reviews.--
            (1) Deadline.--Except as provided in paragraph (2), not 
        later than 180 days after the date of establishment of a panel 
        of experts for a water resources project under this section, 
        the panel shall complete each required review of the project 
        and all other duties of the panel relating to the project 
        (other than the duties described in subsection (e)(5)).
            (2) Extension of deadline for report on economic, 
        engineering, and environmental analysis.--A panel of experts 
        shall submit to the Secretary a report required under 
        subsection (e)(4) not later than 240 days after the date of 
        issuance of a feasibility report, general reevaluation report, 
        or environmental impact statement, if the panel submits to the 
        Director before the end of the 180-day period described in 
        paragraph (1), and the Director approves, a request for a 60-
day extension of the deadline established under that paragraph.
    (g) Recommendations of Panel.--
            (1) Consideration by secretary.--
                    (A) In general.--If the Secretary receives a report 
                on a water resources project from a panel of experts 
                under this section by the deadline established under 
                subsection (f), the Secretary shall, before entering a 
                final record of decision for the water resources 
                project--
                            (i) take into consideration any 
                        recommendations contained in the report; and
                            (ii) prepare a written explanation for any 
                        recommendations not adopted.
                    (B) Inconsistent recommendations and findings.--
                Recommendations and findings of the Secretary that are 
                inconsistent with the recommendations and findings of a 
                panel of experts under this section shall not be 
                entitled to deference in a judicial proceeding.
            (2) Public review; submission to congress.--After receiving 
        a report on a water resources project from a panel of experts 
        under this section (including a report under subsection 
        (e)(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; 
                and
                    (B) include a copy of the report (and any written 
                explanation of the Secretary) in any report submitted 
                to Congress concerning the project.
    (h) Costs.--
            (1) Limitation on cost of review.--The cost of conducting a 
        review of a water resources project under this section shall 
        not exceed--
                    (A) $250,000 for a project, if the total cost of 
                the project in current year dollars is less than 
                $50,000,000; and
                    (B) 0.5 percent of the total cost of the project in 
                current year dollars, if the total cost is $50,000,000 
                or more.
            (2) Treatment.--The cost of conducting a review of a 
        project under this section shall be considered to be part of 
        the total cost of the project.
            (3) Cost sharing.--A review of a project under this section 
        shall be subject to section 105(a) of the Water Resources 
        Development Act of 1986 (33 U.S.C. 2215(a)).
            (4) Waiver of limitation.--The Secretary may waive a 
        limitation under paragraph (1) if the Secretary determines that 
        the waiver is appropriate.
    (i) 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. 7. COST SHARING.

    (a) Inland Waterways.--
            (1) Construction.--Section 102(a) of the Water Resources 
        Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
                    (A) in the first sentence, by striking ``One-half 
                of the costs of construction'' and inserting ``Forty-
                five percent of the costs of construction''; and
                    (B) by striking the second sentence and inserting 
                ``Fifty-five percent of those costs shall be paid only 
                from amounts appropriated from the Inland Waterways 
                Trust Fund.''.
            (2) Operation and maintenance.--Section 102 of the Water 
        Resources Development Act of 1986 (33 U.S.C. 2212) is amended 
        by striking subsections (b) and (c) and inserting the 
        following:
    ``(b) Operation and Maintenance.--
            ``(1) Federal share.--The Federal share of the cost of 
        operation and maintenance shall be 100 percent in the case of--
                    ``(A) a project described in paragraph (1) or (2) 
                of subsection (a); or
                    ``(B) the portion of the project authorized by 
                section 844 that is allocated to inland navigation.
            ``(2) Source of federal share.--
                    ``(A) General fund.--In the case of a project 
                described in paragraph (1) or (2) of subsection (a) 
                with respect to which the cost of operation and 
                maintenance is less than or equal to 1 cent per ton 
                mile, or in the case of the portion of the project 
                authorized by section 844 that is allocated to inland 
                navigation, the Federal share under paragraph (1) shall 
                be paid only from amounts appropriated from the general 
                fund of the Treasury.
                    ``(B) General fund and inland waterways trust 
                fund.--In the case of a project described in paragraph 
                (1) or (2) of subsection (a) with respect to which the 
                cost of operation and maintenance is greater than 1 but 
                less than or equal to 10 cents per ton mile--
                            ``(i) 75 percent of the Federal share under 
                        paragraph (1) shall be paid only from amounts 
                        appropriated from the general fund of the 
                        Treasury; and
                            ``(ii) 25 percent of the Federal share 
                        under paragraph (1) shall be paid only from 
                        amounts appropriated from the Inland Waterways 
                        Trust Fund.
                    ``(C) Inland waterways trust fund.--In the case of 
                a project described in paragraph (1) or (2) of 
                subsection (a) with respect to which the cost of 
                operation and maintenance is greater than 10 cents per 
                ton mile, 100 percent of the Federal share under 
                paragraph (1) shall be paid only from amounts 
                appropriated from the Inland Waterways Trust Fund.''.
    (b) Flood Damage Reduction.--Section 103 of the Water Resources 
Development Act of 1986 (33 U.S.C. 2213) is amended--
            (1) in subsections (a)(2) and (b) by striking ``35'' each 
        place it appears and inserting ``50'';
            (2) in the paragraph heading of subsection (a)(2), by 
        striking ``35 percent minimum'' and inserting ``Minimum''; and
            (3) in the paragraph heading of subsection (b), by striking 
        ``35'' in and inserting ``50''.
    (c) 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.--The non-Federal cost of the 
                periodic nourishment of a project, or any measure for 
                shore protection or beach erosion control for a 
                project, shall be 65 percent.''.

SEC. 8. COST CONTROLS.

    (a) Increases in Total Costs.--Section 902 of the Water Resources 
Development Act of 1986 (33 U.S.C. 2280) is amended by striking ``In 
order'' and all that follows through ``project shall be'' and inserting 
``In order to ensure against cost overruns, with respect to a water 
resources project that an Act of Congress authorizes the Secretary to 
carry out, each total cost specified for the project in an Act, or in 
accompanying legislative report language, shall be''.
    (b) Requirement of Payment of Non-Federal Share After Waiver.--
            (1) In general.--Notwithstanding any other provision of 
        law, in the case of a water resources project or a separable 
        element of a water resources project described in paragraph 
        (2), the Secretary may obligate funds authorized for the 
        project or separable element only after the non-Federal 
        interests have demonstrated willingness and the ability to 
        provide 100 percent of the non-Federal share required to be 
        paid, under title I of the Water Resources Development Act of 
        1986 (33 U.S.C. 2211 et seq.), with respect to the project or 
        separable element.
            (2) Water resources projects.--A water resources project or 
        separable element referred to in paragraph (1) is a water 
        resources project or separable element--
                    (A) that was authorized on or after November 17, 
                1986, but before the date of enactment of this Act;
                    (B) with respect to which the requirement that the 
                non-Federal interests pay a non-Federal share has been 
                waived under a provision of law other than section 
                103(m) of the Water Resources Development Act of 1986 
                (33 U.S.C. 2213(m)); and
                    (C) for which, as of the date of enactment of this 
                Act, the Secretary has not entered into a project 
                cooperation agreement with the non-Federal interests.

SEC. 9. PUBLIC ACCESS TO INFORMATION.

    (a) In General.--Except as provided in subsection (c), the 
Secretary shall ensure that information relating to the analysis or 
justification of a water resources project by the Corps is made 
available--
            (1) to any individual on request; and
            (2) to the public on the Internet.
    (b) Types of Information.--Information concerning a water resources 
project that shall be made available under subsection (a) shall 
include--
            (1) all information that has been made available to the 
        non-Federal interests with respect to the project; and
            (2) all data, analytical documents, and other information 
        considered or used by the Corps in the analysis or 
        justification of the project.
    (c) Exception for Trade Secrets.--
            (1) In general.--Under subsection (a), the Secretary shall 
        not make available any information that the Secretary 
        determines to be a trade secret of the person that provided the 
        information to the Corps.
            (2) Criteria for trade secrets.--The Secretary shall 
        consider information to be a trade secret only if--
                    (A) the person that provided the information to the 
                Corps--
                            (i) has not disclosed the information to 
                        any person other than--
                                    (I) an officer or employee of the 
                                United States or a State or local 
                                government;
                                    (II) an employee of the person that 
                                provided the information to the Corps; 
                                or
                                    (III) a person that is bound by a 
                                confidentiality agreement; and
                            (ii) has taken reasonable measures to 
                        protect the confidentiality of the information 
                        and demonstrates an intent 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 that provided the information to the Corps.
                                 <all>