[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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