[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2566 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 2566

                 To reform the Army Corps of Engineers.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 23, 2003

    Mr. Kind (for himself, Mr. Gilchrest, Mr. Blumenauer, and Mrs. 
  Tauscher) introduced the following bill; which was referred to the 
             Committee on Transportation and Infrastructure

_______________________________________________________________________

                                 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 ``Army Corps of 
Engineers Reform Act of 2003''.
    (b) Table of Contents.--

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Secretary defined.
                    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 the following:
            (1) The Army Corps of Engineers is the primary Federal 
        agency responsible for developing and managing the Nation's 
        harbors, waterways, shorelines, and water resources.
            (2) Scarce Federal resources require 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.
            (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 as follows:
            (1) To ensure that the Nation's water resources investments 
        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 be considered as 
        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.
            (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. SECRETARY DEFINED.

    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 Army Corps of Engineers Reform Act 
of 2003, 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 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 a 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 with 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 project's draft feasibility study and ending with the 
issuance of the project's draft environmental impact statement.
    (c) Membership.--A stakeholder advisory committee established for a 
project under this section shall be composed of representatives of 
State and local agencies, tribal organizations, public interest groups, 
industry, scientific, and academic organizations, Federal agencies, and 
other interested citizens. 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 as 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 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 signficant 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.--Upon receipt of a written 
        request by an interested party or on the initiative of the 
        Secretary, the Secretary shall determine whether or not a 
        project is controversial under paragraph (2)(E). The Secretary 
        shall determine that a project is controversial if the 
        Secretary finds that--
                    (A) there is a significant public dispute as to the 
                size, nature, or effects of the project; or
                    (B) there is a significant public dispute as to the 
                economic or environmental costs or benefits of the 
                project.
            (4) Affected state defined.--In paragraph (2)(B), the term 
        ``affected State'' means a State that is at least partially 
        within the drainage basin in which the project is located and 
        would be economically or environmentally affected as a 
        consequence of the project.
    (b) 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 (in this section referred to as the 
        ``Office'').
            (2) Director.--
                    (A) Appointment.--The head of the Office shall be 
                the Director of the Office of Independent Review (in 
                this section referred to as the ``Director''), who 
                shall be appointed by the Secretary for a term of 3 
                years.
                    (B) Qualifications.--The Secretary shall select the 
                Director from among individuals who are distinguished 
                scholars. 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 less than 5 and 
        not more than 9 independent experts who represent a balance of 
        areas of expertise, including biologists, engineers, and 
        economists.
            (3) Limitation on appointments.--The Director shall not 
        appoint an individual to serve on a panel of experts for a 
        project if the individual has a financial or close professional 
        association with any organization or group with a strong 
        financial or organizational interest in the project.
            (4) Consultation.--The Director shall consult with the 
        National Academy of Sciences in developing lists of individuals 
        to serve on panels of experts under this section.
            (5) Compensation.--An individual serving on a panel of 
        experts under this section shall be compensated at a rate of 
        pay to be determined by the 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 and review written and oral comments of a 
        technical nature concerning the project from the public; 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 project's 
        feasibility studies, general reevaluation studies, and 
        environmental impact statements, with particular emphasis on 
        areas of public controversy.
    (e) Duration of Project Reviews.--A panel of experts shall complete 
its review of a project under this section not later than 180 days 
after the date of establishment of the panel and shall terminate upon 
submission of a final 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 consider any recommendations contained in the 
        report and prepare a written explanation for any 
        recommendations not adopted.
            (2) Public review; transmittal 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 
                under section 104; and
                    (B) transmit to Congress a copy of the report, 
                together with any such written explanation.
    (g) Costs.--
            (1) In general.--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 as part of the total cost 
                of the project.
            (2) Waiver.--The Secretary may waive the $500,000 
        limitation contained in paragraph (1)(B) in cases that the 
        Secretary determines 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.--The Secretary shall ensure that information 
related 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 its analysis, 
is made available to any individual upon request and to the public on 
the Internet.
    (b) Types of Information.--Information about a water resources 
project to be made available under subsection (a) shall include any 
information that had been made available to the project sponsor and all 
data used by the Corps of Engineers in its justification and analysis 
of the project.
    (c) Exception for Trade Secrets.--
            (1) In general.--The Secretary shall not make information 
        available under subsection (a) that the Secretary determines to 
        be a trade secret of the person who supplied 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 who supplied 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 such 
                        person, or (III) a person who 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 
                such person.

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) by striking ``and'' at the end of paragraph (1)(B);
            (2) by striking the period at the end of paragraph (2) and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(3) any projected benefit arising from the draining, 
        reduction, or elimination of wetlands attributable to increases 
        in the value of privately owned property, increases in the 
        quantity of privately owned property, or increases in the value 
        of privately owned services.''.

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 greatest 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 the first sentence of paragraph (1) by inserting 
        ``fully'' before ``mitigate''; and
            (2) by adding at the end the following:
            ``(3) Standards for mitigation.--To mitigate losses to fish 
        and wildlife resulting from a water resources project, the 
        Secretary, at a minimum, shall acquire and restore an acre of 
        habitat to replace each acre of habitat negatively impacted by 
        the project. The mitigation plan shall include a detailed and 
        specific plan to monitor mitigation implementation and success.
            ``(4) Design of mitigation projects.--The Secretary shall 
        design mitigation projects to reflect contemporary 
        understanding of the importance of spatial distribution of 
        habitat and the natural hydrology of aquatic ecosystems, and 
        shall fully mitigate the adverse hydrologic impacts of 
        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 and in no case later than the last day of 
project construction.''.

SEC. 203. MITIGATION TRACKING SYSTEM.

    (a) In General.--Not later than 6 months after the date of 
enactment of this Act, the Secretary shall establish a record-keeping 
system to track the following information:
            (1) The amount and type of wetlands and other habitat types 
        impacted by the operation and maintenance of each water 
        resources project carried out by the Secretary.
            (2) The amount and type of mitigation required for the 
        operation and maintenance of each water resources project 
        carried out by the Secretary.
            (3) The amount and type of mitigation that has been 
        completed for the operation and maintenance of each water 
        resources project carried out by the Secretary.
            (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 record-keeping 
system shall include information on impacts and mitigation described in 
subsection (a) occurring after 1969 and shall be organized by 
watershed, project, permit application, and zip code.
    (c) Availability of Information.--The Secretary shall make 
information contained in the record-keeping system available to the 
public on the Internet.
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