[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2188 Introduced in Senate (IS)]







 108th CONGRESS
   2d Session
                                S. 2188

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 10, 2004

 Mr. Feingold (for himself, Mr. McCain and Mr. Daschle) 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Corps of Engineers 
Modernization and Improvement Act of 2004''.
    (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. Definitions.
                 TITLE I--MODERNIZING PROJECT PLANNING

Sec. 101. Modern planning principles.
Sec. 102. Independent review.
Sec. 103. Benefit-cost analysis.
Sec. 104. Benefit-cost ratio.
Sec. 105. Cost sharing.
                          TITLE II--MITIGATION

Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.
               TITLE III--ADDRESSING THE PROJECT BACKLOG

Sec. 301. Project backlog.
Sec. 302. Primary mission focus.

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 resources and funding, and greater 
        oversight of Corps analyses;
            (3) appropriate cost sharing ensures efficient measures of 
        project demands and enables the Corps to meet more national 
        project needs;
            (4) the significant demand for recreation, clean water, and 
        healthy wildlife habitat must be fully reflected in the project 
        planning and construction process of the Corps;
            (5) the human health, environmental, and social impacts of 
        dams, levees, shoreline stabilization structures, river 
        training structures, river dredging, and other Corps projects 
        and activities must be adequately considered and, in any case 
        in which adverse impacts cannot be avoided, fully mitigated;
            (6) the National Academy of Sciences has concluded that the 
        Principles and Guidelines for water resources projects need to 
        be modernized and updated to reflect current economic practices 
        and environmental laws and planning guidelines; and
            (7) affected interests must have access to information that 
        will allow those interests to play a larger and more effective 
        role in the oversight of Corps project development and 
        mitigation.
    (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 feasibility studies, 
        general reevaluation studies, and environmental impact 
        statements of the Corps;
            (3) to ensure timely, ecologically successful, and cost-
        effective mitigation for Corps projects;
            (4) to ensure appropriate local cost sharing to assist in 
        efficient project planning focused on national needs;
            (5) to enhance the involvement of affected interests in 
        feasibility studies, general reevaluation studies, and 
        environmental impact statements of the Corps;
            (6) to modernize planning principles of the Corps to meet 
        the economic and environmental needs of riverside and coastal 
        communities and the nation;
            (7) to ensure that environmental protection and 
        restoration, and national economic development, are co-equal 
        goals, and given co-equal emphasis, during the evaluation, 
        planning, and construction of Corps projects;
            (8) to ensure that project planning, project evaluations, 
        and project recommendations of the Corps are based on sound 
        science and economics and on a full evaluation of the impacts 
        to the health of aquatic ecosystems; and
            (9) to ensure that the determination of benefits and costs 
        of Corps projects properly reflects current law and Federal 
        policies designed to protect human health and the environment.

SEC. 3. 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.

                 TITLE I--MODERNIZING PROJECT PLANNING

SEC. 101. MODERN PLANNING PRINCIPLES.

    (a) Planning Principles.--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--
            ``(1) national economic development and environmental 
        protection and restoration are co-equal goals of water 
        resources project planning and management; and
            ``(2) Federal agencies manage and, if clearly justified, 
        construct water resource projects--
                    ``(A) to meet national economic needs; and
                    ``(B) to protect and restore the environment.
    ``(b) Revision of Planning Guidelines, Regulations and Circulars.--
Not later than 18 months after the date of enactment of the Corps of 
Engineers Modernization and Improvement Act of 2004, the Secretary, in 
collaboration with the National Academy of Sciences, shall develop 
proposed revisions of, and revise, the planning guidelines, 
regulations, and circulars of the Corps.
    ``(c) Additional Requirements.--Corps planning regulations revised 
under subsection (b) shall--
            ``(1) incorporate new and existing analytical techniques 
        that reflect the probability of project benefits and costs;
            ``(2) apply discount rates provided by the Office of 
        Management and Budget;
            ``(3) eliminate biases and disincentives that discourage 
        the use of nonstructural approaches to water resources 
        development and management;
            ``(4) encourage, to the maximum extent practicable, the 
        restoration of ecosystems;
            ``(5) consider the costs and benefits of protecting or 
        degrading natural systems;
            ``(6) ensure that projects are justified by benefits that 
        accrue to the public at large;
            ``(7) ensure that benefit-cost calculations reflect a 
        credible schedule for project construction;
            ``(8) ensure that each project increment complies with 
        section 104;
            ``(9) include as a cost any increase in direct Federal 
        payments or subsidies and exclude as a benefit any increase in 
        direct Federal payments or subsidies; and
            ``(10) provide a mechanism by which, at least once every 5 
        years, the Secretary shall collaborate with the National 
        Academy of Sciences to review, and if necessary, revise all 
        planning regulations, guidelines, and circulars.
    ``(d) National Navigation and Port Plan.--
            ``(1) In general.--Not later than 18 months after the date 
        of enactment of the Corps of Engineers Modernization and 
        Improvement Act of 2004, the Corps shall develop and annually 
        update an integrated, national plan to manage, rehabilitate 
        and, if justified, modernize inland waterway and port 
        infrastructure to meet current national economic and 
        environmental needs.
            ``(2) Tools.--To develop the plan, the Corps shall employ 
        economic tools that--
                    ``(A) recognize the importance of alternative 
                transportation destinations and modes; and
                    ``(B) employ practicable, cost-effective congestion 
                management alternatives before constructing and 
                expanding infrastructure to increase waterway and port 
                capacity.
            ``(3) Benefits and proximity.--The Corps shall give 
        particular consideration to the benefits and proximity of 
        proposed and existing port, harbor, waterway, rail and other 
        transportation infrastructure in determining whether to 
        construct new water resources projects.
    ``(e) Notice and Comment.--The Secretary shall comply with the 
notice and comment provisions of chapter 551 of title 5, United States 
Code, in issuing revised planning regulations, guidelines and 
circulars.
    ``(f) Applicability.--On completion of the revisions required under 
this section, the Secretary shall apply the revised regulations to 
projects for which a draft feasibility study or draft reevaluation 
report has not yet been issued.
    ``(g) Project Reformulation.--Projects of the Corps, and separable 
elements of projects of the Corps, that have been authorized for 10 
years, but for which less than 15 percent of appropriations 
specifically identified for construction have been obligated, shall not 
be constructed unless a general reevaluation study demonstrates that 
the project or separable element meets--
            ``(1) all project criteria and requirements applicable at 
        the time the study is initiated, including requirements under 
        this section; and
            ``(2) cost share and mitigation requirements of this 
        Act.''.
    (b) Conforming Amendments.--
            (1) Section 80 of the Water Resources Development Act of 
        1974 (42 U.S.C. 1962(d)-17) is repealed.
            (2) Section 7(a) of the Department of Transportation Act 
        (Public Law 89-670; 80 Stat. 941) is repealed.

SEC. 102. 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 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; or
                    (D) 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 
                purpose of paragraph (2)(D) if the Secretary finds 
                that--
                            (i) there is a significant dispute as to 
                        the size, nature, or effects of the project;
                            (ii) there is a significant dispute as to 
                        the economic or environmental costs or benefits 
                        of the project; or
                            (iii) there is a significant 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 any 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 Inspector General of the Army shall 
        appoint in the Office of the Inspector General of the Army a 
        Director of Independent Review.
            (2) Qualifications.--The Inspector General 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 Inspector General of 
        the Army 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 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 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, hydrologists, 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 financial 
        interest in the project.
            (4) Consultation.--The Director shall consult with the 
        Academy in developing lists of individuals to serve on panels 
        of experts under this section.
            (5) Notification.--
                    (A) In general.--To ensure that the Director is 
                able to effectively carry out the duties of the 
                Director under this section, the Secretary shall notify 
                the Director in writing not later than 90 days before 
                the release of a draft feasibility report, draft 
                general reevaluation report, or draft environmental 
                impact statement, for every water resources project.
                    (B) Contents.--The notification shall include--
                            (i) the estimated cost of the project; and
                            (ii) a preliminary assessment of whether a 
                        panel of experts may be required.
            (6) 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 of the Army.
            (7) 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.--
            (1) In general.--A panel of experts established for a water 
        resources project under this section shall--
                    (A) review each draft feasibility report, draft 
                general reevaluation report, and draft environmental 
                impact statement prepared for the project;
                    (B) assess the adequacy of the economic, 
                scientific, and environmental models used by the 
                Secretary in reviewing the project to ensure that--
                            (i) the best available economic and 
                        scientific methods of analysis have been used;
                            (ii) the best available economic, 
                        scientific, and environmental data have been 
                        used; and
                            (iii) any regional effects on navigation 
                        systems have been examined;
                    (C) receive from the public written and oral 
                comments concerning the project;
                    (D) not later than the deadline established under 
                subsection (f), submit to the Secretary a report 
                concerning the economic, engineering, and environmental 
                analyses 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
                    (E) not later than 30 days after the date of 
                issuance of a final feasibility report, final general 
                reevaluation report, or final environmental impact 
                statement, 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.
            (2) Extensions.--
                    (A) In general.--The panel may request from the 
                Director a 30-day extension of the deadline established 
                under paragraph (1)(E).
                    (B) Record of decision.--The Secretary shall not 
                issue a record of decision until after, at the 
                earliest--
                            (i) the final day of the 30-day period 
                        described in paragraph (1)(E); or
                            (ii) if the Director grants an extension 
                        under subparagraph (A), the final day of end of 
                        the 60-day period beginning on the date of 
                        issuance of a final feasibility report 
                        described in paragraph (1)(E) and ending on the 
                        final day of the extension granted under 
                        subparagraph (A).
    (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--
                    (A) each required review of the project; and
                    (B) all other duties of the panel relating to the 
                project (other than the duties described in subsection 
                (e)(1)(E)).
            (2) Extension of deadline for report on project reviews.--
        Not later than 240 days after the date of issuance of a draft 
        feasibility report, draft general reevaluation report, or draft 
        environmental impact statement for a project, if a panel of 
        experts 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, the panel of experts shall submit to the 
        Secretary a report required under subsection (e)(1)(D).
    (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 applicable deadline under 
                subsection (e)(1)(E) or (f), the Secretary shall, at 
                least 14 days 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)(1)(E)), the Secretary shall--
                    (A) immediately make a copy of the report (and, in 
                a case in which any written explanation of the 
                Secretary on recommendations contained in the report is 
                completed, shall immediately make a copy of the 
                response) 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) Public Access to Information.--
            (1) In general.--Except as provided in paragraph (3), the 
        Secretary shall ensure that information relating to the 
        analysis of any water resources project by the Corps, including 
        all supporting data, analytical documents, and information that 
        the Corps has considered in the analysis, is made available--
                    (A) to any individual upon request;
                    (B) to the public on the Internet; and
                    (C) to an independent review panel, if such a panel 
                is established for the project.
            (2) Types of information.--Information concerning a project 
        that is available under paragraph (1) shall include--
                    (A) any information that has been made available to 
                the non-Federal interests with respect to the project; 
                and
                    (B) all data and information used by the Corps in 
                the justification and analysis of the project.
            (3) Exception for trade secrets.--
                    (A) In general.--The Secretary shall not make 
                information available under paragraph (1) that the 
                Secretary determines to be a trade secret of any person 
                that provided the information to the Corps.
                    (B) Criteria for trade secrets.--The Secretary 
                shall consider information to be a trade secret only 
                if--
                            (i) the person that provided the 
                        information to the Corps--
                                    (I) has not disclosed the 
                                information to any person other than--
                                            (aa) an officer or employee 
                                        of the United States or a State 
                                        or local government;
                                            (bb) an employee of the 
                                        person that provided the 
                                        information to the Corps; or
                                            (cc) 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 the measures;
                            (ii) the information is not required to be 
                        disclosed, or otherwise made available, to the 
                        public under any other Federal or State law; 
                        and
                            (iii) disclosure of the information is 
                        likely to cause substantial harm to the 
                        competitive position of the person that 
                        provided the information to the Corps.
    (i) 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.
    (j) 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. 103. 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 change in, 
        or intensification of, land use arising from the draining, 
        reduction, or elimination of wetlands.''.

SEC. 104. BENEFIT-COST RATIO.

    (a) Recommendation of Projects.--Beginning in fiscal year 2004, in 
the case of a water resources project that is subject to a benefit-cost 
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 national benefits that are at least 1.5 times as great as the 
estimated total costs of the project, based on current discount rates 
provided by the Office of Management and Budget.
    (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 benefit-cost 
                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 for the project.
            (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.

SEC. 105. 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) Operations 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 2 cents 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 2 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 but less than 30 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.
                    ``(D) Non-federal responsibility.--
                            ``(i) In general.--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 30 cents per 
                        ton-mile, the cost of operations and 
                        maintenance shall be a non-Federal 
                        responsibility.
                            ``(ii) Deauthorization.--In a case in which 
                        the Secretary determines that the non-Federal 
                        interests for a project described in clause (i) 
                        are unable to pay for the cost of operations 
                        and maintenance of the project, the project is 
                        deauthorized as of the date of that 
                        determination.''.
    (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'' and inserting ``50''.
    (c) Beach Replacement.--Section 103(d)(2)(A) of the Water Resources 
Development Act of 1986 (33 U.S.C. 2213(d)(2)) is amended--
            (1) by redesignating subparagraphs (B) and (C) as 
        subparagraphs (C) and (D), respectively; and
            (2) by inserting after subparagraph (A) the following:
                    ``(B) 2004 and subsequent projects.--For any 
                project authorized after the date of enactment of the 
                Corps of Engineers Modernization and Improvement Act of 
                2004, the non-Federal cost of the periodic nourishment 
                of the project, or any measure for shore protection or 
                beach erosion control for the project, shall be 65 
                percent.''.

                          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) by striking paragraph (1) and inserting the following:
            ``(1) Projects.--
                    ``(A) In general.--After November 17, 1986, the 
                Secretary shall not submit to Congress any proposal for 
                the authorization of any water resources project, and 
                shall not choose a project alternative in any final 
                record of decision, environmental impact statement, or 
                environmental assessment, unless the report contains--
                            ``(i) a specific plan to fully mitigate 
                        losses of aquatic and terrestrial resources and 
fish and wildlife created by the project; or
                            ``(ii) a determination by the Secretary 
                        that the project will have negligible adverse 
                        impact on aquatic and terrestrial resources and 
                        fish and wildlife.
                    ``(B) Specific requirements.--Specific mitigation 
                plans shall ensure that impacts to bottomland hardwood 
                forests and other habitat types are mitigated in kind.
                    ``(C) Consultation.--In carrying out this 
                paragraph, 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.--To fully mitigate losses to fish 
                and wildlife resulting from a water resources project, 
                the Secretary shall, at a minimum--
                            ``(i) acquire and restore 1 acre of 
                        superior or equivalent habitat of the same type 
                        to replace each acre of habitat adversely 
                        affected by the project; and
                            ``(ii) replace the hydrologic functions and 
                        characteristics, the ecological functions and 
                        characteristics, and the spatial distribution 
                        of the habitat adversely affected by the 
                        project.
                    ``(B) Detailed mitigation plan.--The specific 
                mitigation plan for a water resources project under 
                paragraph (1) shall include, at a minimum--
                            ``(i) a detailed and specific plan to 
                        monitor mitigation implementation and 
                        ecological success, including the designation 
                        of the entities that will be responsible for 
                        monitoring;
                            ``(ii) specific ecological success criteria 
                        by which the mitigation will be evaluated and 
                        determined to be successful, prepared in 
                        consultation with the United States Fish and 
                        Wildlife Service;
                            ``(iii) a detailed description of the land 
                        and interests in land to be acquired for 
                        mitigation and the basis for a determination 
                        that land and interests are available for 
                        acquisition;
                            ``(iv) sufficient detail regarding the 
                        chosen mitigation sites and type and amount of 
                        restoration activities to permit a thorough 
                        evaluation of the plan's likelihood of 
                        ecological success and resulting aquatic and 
                        terrestrial resource functions and habitat 
                        values; and
                            ``(v) a contingency plan for taking 
                        corrective actions if monitoring demonstrates 
                        that mitigation efforts are not achieving 
                        ecological success as described in the 
                        ecological success criteria.
                    ``(C) Applicable law.--A time period for mitigation 
                monitoring or for the implementation and monitoring of 
                contingency plan actions shall not be subject to the 
                deadlines described in section 202.
            ``(4) Determination of mitigation success.--
                    ``(A) In general.--Mitigation shall be considered 
                to be successful at the time at which monitoring 
                demonstrates that the mitigation has met the ecological 
                success criteria established in the mitigation plan.
                    ``(B) Requirements for success.--To ensure the 
                success of any attempted mitigation, the Secretary 
                shall--
                            ``(i) consult yearly with the United States 
                        Fish and Wildlife Service on each water 
                        resources project requiring mitigation to 
                        determine whether mitigation monitoring for 
                        that project demonstrates that the project is 
                        achieving, or has achieved, ecological success;
                            ``(ii) ensure that implementation of the 
                        mitigation contingency plan for taking 
                        corrective action begins not later than 30 days 
                        after a finding by the Secretary or the United 
                        States Fish and Wildlife Service that the 
                        original mitigation efforts likely will not 
                        result in, or have not resulted in, ecological 
                        success;
                            ``(iii) complete implementation of the 
                        contingency plan as expeditiously as 
                        practicable; and
                            ``(iv) ensure that monitoring of mitigation 
                        efforts, including those implemented through a 
                        mitigation contingency plan, continues until 
                        the monitoring demonstrates that the mitigation 
                        has met the ecological success criteria.
            ``(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 will successfully mitigate the adverse impacts of 
        the project on aquatic and terrestrial resources, hydrologic 
        functions, and fish and wildlife.
            ``(6) Completion of mitigation before construction of new 
        projects.--The Secretary shall complete all promised mitigation 
        for water resources projects in a particular watershed before 
        constructing any new water resources project in that 
        watershed.''.

SEC. 202. 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 striking ``interests--'' and all 
        that follows through ``losses),'' and inserting the following: 
        ``interests shall be undertaken or acquired--
                    ``(A) before any construction of the project (other 
                than such acquisition) commences; or
                    ``(B) concurrently with the acquisition of land and 
                interests in land for project purposes (other than 
                mitigation of fish and wildlife losses);'';
            (3) in paragraph (2), by striking ``(2) For the purposes'' 
        and inserting the following:
            ``(2) Commencement of construction.--For the purpose''; and
            (4) by adding at the end the following:
            ``(4) Implementation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), to ensure concurrent mitigation, the 
                Secretary shall implement--
                            ``(i) 50 percent of required mitigation 
                        before beginning construction of a project; and
                            ``(ii) the remainder of required mitigation 
                        as expeditiously as practicable, but not later 
                        than the last day of construction of the 
                        project or separable element of the project.
                    ``(B) Exception for physical impracticability.--In 
                a case in which the Secretary determines that it is 
                physically impracticable to complete mitigation by the 
                last day of construction of the project or separable 
                element of the project, the Secretary shall reserve or 
                reprogram sufficient funds to ensure that mitigation 
                implementation is completed as expeditiously as 
                practicable, but in no case later than the end of the 
                next fiscal year immediately following the last day of 
                that construction.
            ``(5) Use of funds.--Funds made available for preliminary 
        engineering and design, construction, or operations and 
        maintenance shall be available for use in carrying out this 
        section.''.

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 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)--
            (1) the quantity and type of wetland and other habitat 
        types affected by the project, project operation, or permitted 
        activity;
            (2) the quantity and type of mitigation required for the 
        project, project operation or permitted activity;
            (3) the quantity and type of mitigation that has been 
        completed for the project, project operation or permitted 
        activity; and
            (4) the status of monitoring for the mitigation carried out 
        for the project, project operation or permitted activity.
    (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.

               TITLE III--ADDRESSING THE PROJECT BACKLOG

SEC. 301. 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 reevaluation 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;
                            (iii) the non-Federal interests with 
                        respect to the project have not demonstrated 
                        willingness or the ability to provide the 
                        required non-Federal share; or
                            (iv)(I) the project most recently received, 
                        under an Act of Congress, authorization or 
                        reauthorization of construction more than 25 
                        years before the date of enactment of this Act; 
                        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 Act.
                    (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 estimated cost of the 
                        project in current year dollars;
                            (iv) the benefit-cost 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 bear 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 information 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, 2004, 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 2004 and the 
        amendments made by that Act.
    ``(c) Projects for Which Actual Construction Has Not Begun.--
            ``(1) List.--The Secretary shall annually submit to 
        Congress a list of projects that have been authorized for 
        construction, but for which no actual construction has begun 
        and 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.

SEC. 302. PRIMARY MISSION FOCUS.

    Any water resources project that does not have as a primary project 
purpose 1 of the primary Corps missions of environmental protection, 
flood control, or navigation and that, as of the date of enactment of 
this section, has no appropriated construction funding, is 
deauthorized.
                                 <all>