[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 646 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 646

                 To reform the Army Corps of Engineers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 29, 2001

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

_______________________________________________________________________

                                 A BILL


 
                 To reform the 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Corps of Engineers 
Reform Act of 2001''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definition of Secretary.
                    TITLE I--PROJECT PLANNING REFORM

Sec. 101. Principles and guidelines.
Sec. 102. Stakeholder advisory committees.
Sec. 103. Independent review.
Sec. 104. Public access to information.
Sec. 105. Benefit-cost analysis.
Sec. 106. Project criteria.
                          TITLE II--MITIGATION

Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the Corps of Engineers is the primary Federal agency 
        responsible for developing and managing the harbors, waterways, 
        shorelines, and water resources of the United States;
            (2) the scarcity of Federal resources requires more 
        efficient use of Corps of Engineers funding and greater 
        oversight of Corps of Engineers analyses;
            (3) demand for recreation, clean water, and healthy 
        wildlife habitat must be reflected in the Corps of Engineers 
        project planning process;
            (4) the social and environmental impacts of dams, levees, 
        shoreline stabilization structures, and other projects must be 
        adequately considered and fully mitigated; and
            (5) affected interests must play a larger role in the 
        oversight of Corps of Engineers project development.
    (b) Purposes.--The purposes of this Act are--
            (1) to ensure that the water resources investments of the 
        United States are economically justified and enhance the 
        environment;
            (2) to provide independent review of Corps of Engineers 
        feasibility studies, general reevaluation studies, and 
        environmental impact statements;
            (3) to ensure that mitigation for Corps of Engineers 
        projects is successful and cost-effective;
            (4) to enhance the involvement of affected interests in 
        Corps of Engineers feasibility studies, general reevaluation 
        studies, and environmental impact statements;
            (5) to revise Corps of Engineers planning principles to 
        meet the economic and environmental needs of riverside and 
        coastal communities;
            (6) to ensure that environmental analyses are considered to 
        be co-equal to economic analyses in the assessment of Corps of 
        Engineers projects, recognizing the need for sound science in 
        the evaluation of the impacts on the health of aquatic 
        ecosystems; and
            (7) to ensure that the Corps of Engineers is making 
        appropriate, up-to-date calculations in conducting cost-benefit 
        analyses of Corps of Engineers projects.

SEC. 3. DEFINITION OF SECRETARY.

    In this Act, the term ``Secretary'' means the Secretary of the 
Army.

                    TITLE I--PROJECT PLANNING REFORM

SEC. 101. PRINCIPLES AND GUIDELINES.

    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 Reform Act of 
2001, the Secretary shall revise the principles and guidelines of the 
Corps of Engineers for water resources projects--
            ``(1) to provide for the consideration of ecological 
        restoration costs under Corps of Engineers economic models;
            ``(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) Update of Guidance.--The Secretary shall update the Guidance 
for Conducting Civil Works Planning Studies (ER 1105-2-100) to comply 
with this section.''.

SEC. 102. STAKEHOLDER ADVISORY COMMITTEES.

    (a) In General.--Upon receipt of a written request by any person or 
governmental entity, the Secretary shall establish, for each water 
resources project that is authorized or substantially modified after 
the date of enactment of this Act, a stakeholder advisory committee to 
assist the Secretary in the development of feasibility studies, general 
reevaluation studies, and environmental impact statements for the 
project.
    (b) Duration of Reviews.--A stakeholder advisory committee 
established for a project under this section may provide advice to the 
Secretary during planning and design of the project, beginning with the 
initiation of the draft feasibility study for the project and ending 
with the issuance of the draft environmental impact statement for the 
project.
    (c) Membership.--
            (1) In general.--A stakeholder advisory committee 
        established for a project under this section shall be composed 
        of--
                    (A) representatives of--
                            (i) State and local agencies;
                            (ii) tribal organizations;
                            (iii) public interest groups;
                            (iv) industry, scientific, and academic 
                        organizations; and
                            (v) Federal agencies; and
                    (B) other interested citizens.
            (2) Balance.--The membership shall represent a balance of 
        the social, economic, and environmental interests in the 
        project.
    (d) Role.--A stakeholder advisory committee established for a 
project under this section shall advise the Secretary but shall not be 
required to make a formal recommendation.
    (e) Costs.--The costs of a stakeholder advisory committee 
established for a project under this section--
            (1) shall be a Federal expense;
            (2) shall not exceed $250,000; and
            (3) shall be considered to be part of the total cost of the 
        project.
    (f) Applicability of Federal Advisory Committee Act.--The Federal 
Advisory Committee Act (5 U.S.C. App.) shall apply to a stakeholder 
advisory committee established under this section.

SEC. 103. INDEPENDENT REVIEW.

    (a) Projects Subject to Independent Review.--
            (1) In general.--The Secretary shall ensure that 
        feasibility studies, 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 described in 
                paragraph (4) 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 a significant adverse impact on fish or 
                wildlife after implementation of proposed mitigation 
                plans;
                    (D) the head of a Federal agency charged with 
                reviewing the project determines that the project is 
                likely to have a significant adverse impact on 
                environmental, cultural, or other resources under the 
                jurisdiction of the agency after implementation of 
                proposed mitigation plans; or
                    (E) the Secretary determines that the project is 
                controversial under paragraph (3).
            (3) Controversial projects.--
                    (A) Determination by the secretary.--Upon receipt 
                of a written request by an interested party or on the 
                initiative of the Secretary, the Secretary shall 
                determine whether a project is controversial for the 
                purposes of paragraph (2)(E).
                    (B) Criteria.--The Secretary shall determine that a 
                project is controversial 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.
            (4) Affected state.--An affected State referred to in 
        paragraph (2)(B) means a State that--
                    (A) is located at least partially within the 
                drainage basin in which the project is located; and
                    (B) would be economically or environmentally 
                affected as a consequence of the project.
    (b) Office of Independent Review.--
            (1) Establishment.--There is established in the Office of 
        the Assistant Secretary of the Army for Civil Works an Office 
        of Independent Review (referred to in this section as the 
        ``Office'').
            (2) Director.--
                    (A) Appointment.--The head of the Office shall be 
                the Director of the Office of Independent Review 
                (referred to in this section as the ``Director''), who 
                shall be appointed by the Secretary for a term of 3 
                years.
                    (B) Selection.--
                            (i) Qualifications.--The Secretary shall 
                        select the Director from among individuals who 
                        are distinguished scholars.
                            (ii) Consideration of recommendations.--In 
                        making the selection, the Secretary shall 
                        consider any recommendations made by the 
                        Inspector General of the Army.
                    (C) Limitation on appointments.--The Secretary 
                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 
                an ongoing water resources project.
                    (D) Terms.--An individual may not serve for more 
                than 1 term as the Director.
            (3) 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), 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 fewer than 5 
        nor more than 9 independent experts who represent a balance of 
        areas of expertise, including biology, engineering, and 
        economics.
            (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 Secretary.
            (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, in accordance with 
        sections 5702 and 5703 of title 5, United States Code.
    (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 models used by the 
        Secretary in reviewing the project to ensure that--
                    (A) multiple methods of economic analysis have been 
                used; and
                    (B) any regional effects on navigation systems have 
                been examined;
            (3) assess the adequacy of the environmental models and 
        analyses used by the Secretary in reviewing the project;
            (4) receive from the public, and review, written and oral 
        comments of a technical nature concerning the project; and
            (5) 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 
        studies, general reevaluation studies, and environmental impact 
        statements for the project, with particular emphasis on matters 
        of public controversy.
    (e) Duration of Project Reviews and Panel.--A panel of experts 
shall--
            (1) complete review of a project under this section not 
        later than 180 days after the date of establishment of the 
        panel; and
            (2) terminate upon submission of a report to the Secretary 
        under 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--
                    (A) consider any recommendations contained in the 
                report; and
                    (B) prepare a written explanation for any 
                recommendations that are not adopted.
            (2) Public review; submission to congress.--After receiving 
        a report on a project from a panel of experts under this 
        section, 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 in 
                accordance with section 104; and
                    (B) submit to Congress a copy of the report and any 
                such written explanation.
    (g) Costs.--
            (1) In general.--Subject to paragraph (2), the costs of a 
        panel of experts established for a project under this section--
                    (A) shall be a Federal expense;
                    (B) shall not exceed $500,000; and
                    (C) shall be considered to be part of the total 
                cost of the project.
            (2) Waiver.--The Secretary may waive the limitation 
        specified in paragraph (1)(B) in any case in which the 
        Secretary determines a waiver to be 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. 104. PUBLIC ACCESS TO INFORMATION.

    (a) In General.--Except as provided in subsection (c), the 
Secretary shall ensure that information relating to the analysis of a 
water resources project by the Corps of Engineers, including all 
supporting data, analytical documents, and information that the Corps 
of Engineers has considered in the analysis, is made available to any 
individual upon request and to the public on the Internet.
    (b) Types of Information.--Information concerning a project that 
shall be made available under subsection (a) shall include--
            (1) any information that has been made available to the 
        non-Federal interests with respect to the project; and
            (2) all data used by the Corps of Engineers in the 
        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 that provided the information 
        to the Corps of Engineers.
            (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 of Engineers--
                            (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 
                                of Engineers; 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 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 that provided the information to the Corps 
                of Engineers.

SEC. 105. 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. 106. PROJECT CRITERIA.

    After the date of enactment of this Act, the Secretary shall not 
submit to Congress any proposal to authorize or substantially modify a 
water resources project unless the proposal contains a certification by 
the Secretary that the project minimizes to the maximum extent 
practicable adverse impacts on--
            (1) the natural hydrologic patterns of aquatic ecosystems; 
        and
            (2) the value or native diversity of aquatic ecosystems.

                          TITLE II--MITIGATION

SEC. 201. FULL MITIGATION.

    Section 906(d) of the Water Resources Development Act of 1986 (33 
U.S.C. 2283(d)) is amended--
            (1) in paragraph (1)(A), by inserting ``fully'' before 
        ``mitigate''; and
            (2) by adding at the end the following:
            ``(3) Standards for mitigation.--
                    ``(A) In general.--To mitigate losses to fish and 
                wildlife resulting from a water resources project, the 
                Secretary, at a minimum, shall acquire and restore 1 
                acre of habitat to replace each acre of habitat 
                negatively affected by the project.
                    ``(B) Monitoring plan.--The mitigation plan for a 
                water resources project under paragraph (1) shall 
                include a detailed and specific plan to monitor 
                mitigation implementation and success.
            ``(4) Design of mitigation projects.--The Secretary shall--
                    ``(A) design each mitigation project to reflect 
                contemporary understanding of the importance of spatial 
                distribution of habitat and the natural hydrology of 
                aquatic ecosystems; and
                    ``(B) fully mitigate the adverse hydrologic impacts 
                of water resources projects.
            ``(5) Recommendation of projects.--The Secretary shall not 
        recommend a water resources project alternative or choose 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 for the 
        alternative has the greatest probability of cost-effectively 
        and successfully mitigating the adverse impacts of the project 
        on aquatic resources and fish and wildlife.
            ``(6) Completion of mitigation before construction of new 
        projects.--The Secretary shall complete all planned mitigation 
        in a particular watershed before constructing any new water 
        resources project in that watershed.''.

SEC. 202. CONCURRENT MITIGATION.

    Section 906(a)(1) of the Water Resources Development Act of 1986 
(33 U.S.C. 2283(a)(1)) is amended by adding at the end the following: 
``To ensure concurrent mitigation, the Secretary shall complete 50 
percent of required mitigation before beginning project construction 
and shall complete the remainder of required mitigation as 
expeditiously as practicable, but not later than the last day of 
project construction.''.

SEC. 203. MITIGATION TRACKING SYSTEM.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Secretary shall establish a recordkeeping 
system to track--
            (1) the quantity and type of wetland and other habitat 
        types affected by the operation and maintenance of each water 
        resources project carried out by the Secretary;
            (2) the quantity and type of mitigation required for 
        operation and maintenance of each water resources project 
        carried out by the Secretary;
            (3) the quantity and type of mitigation that has been 
        completed for the operation and maintenance of each water 
        resources project carried out by the Secretary; and
            (4) wetland losses permitted under section 404 of the 
        Federal Water Pollution Control Act (33 U.S.C. 1344) and 
        required mitigation for such losses.
    (b) Required Information and Organization.--The recordkeeping 
system shall--
            (1) include information on impacts and mitigation described 
        in subsection (a) that occur after December 31, 1969; and
            (2) be organized by watershed, project, permit application, 
        and zip code.
    (c) Availability of Information.--The Secretary shall make 
information contained in the recordkeeping system available to the 
public on the Internet.
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