[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2963 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2963

          To reform the United States Army Corps of Engineers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 18, 2002

  Mr. Johnson introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
          To reform the United States Army Corps of Engineers.

    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 Reform Act of 
2002''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Corps.--The term ``Corps'' means the Corps of 
        Engineers.
            (2) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

SEC. 3. INLAND WATERWAY REFORM.

    (a) Construction.--Section 102(a) of the Water Resources 
Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
            (1) in the first sentence, by striking ``One-half of the 
        costs of construction'' and inserting ``Forty-five percent of 
        the costs of construction''; and
            (2) 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.''.
    (b) 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) 45 percent of the Federal share under 
                        paragraph (1) shall be paid only from amounts 
                        appropriated from the general fund of the 
                        Treasury; and
                            ``(ii) 55 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.''.

SEC. 4. 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 draft 
        feasibility report, draft general reevaluation report, and 
        draft 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 $30,000,000, including mitigation costs;
                    (B) the Governor of an affected State, or the 
                Director of a Federal agency with jurisdiction over 
                resources affected by the proposed project requests the 
                establishment of a panel of independent experts to 
                review the project; and
                    (C) the Secretary determines under paragraph (3) 
                that the proposed project is controversial.
            (3) 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 
        Director shall determine whether a water resources project is 
        controversial.
    (c) Director of Independent Review.--
            (1) Appointment.--The Secretary of the Army shall appoint 
        in the Office of the Inspector General of the Department of the 
        Army a Director of Independent Review.
            (2) Qualifications.--The Secretary of the Army 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 Army Inspector General 
        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 of 
        the Director, 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 date on which the Secretary 
        issues a draft feasibility report, draft general reevaluation 
        report, or draft environmental impact statement relating to a 
        water resources project that is subject to review under 
        subsection (b)(2), the Director shall establish a panel of 
        experts to review the project.
            (2) Membership.--A panel of experts established by the 
        Director for a water resources 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 draft feasibility report, draft general 
        reevaluation report, and draft environmental impact statement 
        prepared for the project to identify--
                    (A) technical errors;
                    (B) outdated and inaccurate data; and
                    (C) flawed economic and environmental methodologies 
                and models;
            (2) receive from the public written and oral comments 
        concerning the project; and
            (3) 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 and recommendations of the 
        panel.
    (f) Duration of Project Reviews.--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.
    (g) Final Issuance of Reports and Statements.--Before issuing a 
final feasibility report, final general reevaluation report, or final 
environmental impact statement for a water resources project, the 
Secretary shall--
            (1) take into consideration any recommendations contained 
        in the report described in subsection (e)(3) for the water 
        resources project; and
            (2) prepare and include in the final feasibility report, 
        final general reevaluation report, or final environmental 
        impact statement--
                    (A) the report of the panel; and
                    (B) for any recommendations of the panel not 
                adopted by the Secretary, a written explanation of the 
                reasons why the recommendations were not adopted.
    (h) Costs.--The cost of conducting a review of a water resources 
project under this section--
            (1) shall not exceed $250,000;
            (2) shall be considered to be part of the total cost of the 
        project; and
            (3) shall be a Federal expense.
    (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. 5. MITIGATION.

    (a) Concurrent Mitigation.--Section 906(a) of the Water Resources 
Development Act of 1986 (33 U.S.C. 2283(a)) is amended--
            (1) by striking ``(a)(1) In the case'' and inserting the 
        following:
    ``(a) Mitigation.--
            ``(1) In general.--In the case'';
            (2) in paragraph (1), by indenting subparagraphs (A) and 
        (B) appropriately;
            (3) in paragraph (2), by striking ``(2) For the purposes'' 
        and inserting the following:
            ``(3) Commencement of construction.--For the purposes''; 
        and
            (4) by inserting after paragraph (1) the following:
            ``(2) Implementation of mitigation.--
                    ``(A) In general.--To ensure concurrent mitigation, 
                the Secretary shall implement required mitigation under 
                paragraph (1) as expeditiously as practicable, but not 
                later than--
                            ``(i) the last day of construction of the 
                        project or separable element of the project; or
                            ``(ii) in a case in which completion of 
                        mitigation by the date described in clause (i) 
is physically impracticable because 1 or more sites for the remaining 
mitigation are or will be disturbed by project construction (as 
determined by the Secretary), not later than the end of the next fiscal 
year immediately following the last day of construction.
                    ``(B) Availability of funds.--Funds made available 
                for preliminary engineering and design, construction, 
                or operations and maintenance may be used to carry out 
                this subsection.''.
    (b) Full Mitigation.--Section 906(d) of the Water Resources 
Development Act of 1986 (33 U.S.C. 2283(d)) is amended--
            (1) by striking paragraph (1) and inserting the following:
            ``(1) Plans and proposals.--
                    ``(A) In general.--After November 17, 1986, the 
                Secretary shall not submit any proposal for the 
                authorization of any water resources project to 
                Congress, and shall not choose a project alternative in 
                any final record of decision, environmental impact 
                statement, or environmental assessment, unless the 
                proposal contains--
                            ``(i) a specific plan to fully mitigate 
                        fish and wildlife losses created by the 
                        project; or
                            ``(ii) a determination by the Secretary 
                        that the project will have negligible adverse 
                        impact on fish and wildlife.
                    ``(B) Forests.--A specific mitigation plan 
                described in subparagraph (A)(i) shall ensure, to the 
                maximum extent practicable, that impacts to bottomland 
                hardwood forests are mitigated in kind.
                    ``(C) Consultation.--In carrying out this 
                subsection, the Secretary shall consult with 
                appropriate Federal and non-Federal agencies.''; and
            (2) by adding at the end the following:
            ``(3) Standards for mitigation.--
                    ``(A) In general.--The Secretary shall not 
                recommend a water resources project alternative or 
                select a project alternative in any final record of 
                decision, environmental impact statement, or 
                environmental assessment completed after the date of 
                enactment of this paragraph unless the Secretary 
                determines that the mitigation plan has a high 
                probability of successfully mitigating the adverse 
                impacts of the project on aquatic and other resources, 
                hydrologic functions, and fish and wildlife.
                    ``(B) Requirements.--A mitigation plan described in 
                subparagraph (A) shall--
                            ``(i) provide for the acquisition and 
                        restoration of at least 1 acre of superior or 
                        equivalent habitat of the same type to replace 
                        each acre of habitat negatively affected by the 
                        project;
                            ``(ii) ensure that mitigation will result 
                        in replacement of all functions of the habitat 
                        negatively affected by the project, including--
                                    ``(I) spatial distribution; and
                                    ``(II) natural hydrologic and 
                                ecological characteristics;
                            ``(iii) contain sufficient detail regarding 
                        the mitigation sites and restoration activities 
                        selected to permit a thorough evaluation of--
                                    ``(I) the likelihood of the 
                                ecological success of the plan; and
                                    ``(II) resulting aquatic and other 
                                resource functions and habitat values;
                            ``(iv) include a detailed and specific plan 
                        to monitor mitigation implementation and 
                        success; and
                            ``(v) include specific ecological success 
                        criteria by which the success of the mitigation 
                        will be evaluated.''.
    (c) Mitigation Tracking System.--Section 906 of the Water Resources 
Development Act of 1986 (33 U.S.C. 2283) is amended by adding at the 
end the following:
    ``(h) Mitigation Tracking System.--
            ``(1) In general.--Not later than 180 days after the date 
        of enactment of this subsection, the Secretary shall establish 
        a recordkeeping system to track for each water resources 
        project constructed, operated, or maintained by the Secretary, 
        and for each permit issued under section 404 of the Federal 
        Water Pollution Control Act (33 U.S.C. 1344)--
                    ``(A) the quantity and type of wetland and other 
                types of habitat affected by the project or permitted 
                activity;
                    ``(B) the quantity and type of mitigation required 
                for the project or permitted activity;
                    ``(C) the quantity and type of mitigation that has 
                been completed for the project or permitted activity; 
                and
                    ``(D) the status of monitoring for the mitigation 
                carried out for the project or permitted activity.
            ``(2) Required information and organization.--The 
        recordkeeping system shall--
                    ``(A) include information on impacts and mitigation 
                described in subsection (a) that occur after December 
                31, 1969; and
                    ``(B) be organized by watershed, project, permit 
                application, and zip code.
            ``(3) Availability of information.--The Secretary shall 
        make information contained in the recordkeeping system 
        available to the public (including through the Internet).''.

SEC. 6. MODERN ECONOMIC AND ENVIRONMENTAL STANDARDS.

    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 coequal 
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 Army Corps Reform 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) to reflect modern 
methods of measuring benefits and costs of water resources projects.
    ``(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.''.
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