[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2288 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2288

     To modernize water resources planning, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2006

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

_______________________________________________________________________

                                 A BILL


 
     To modernize water resources planning, 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.

    This Act may be cited as the ``Water Resources Planning and 
Modernization Act of 2006''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Council.--The term ``Council'' means the Water 
        Resources Council established under section 101 of the Water 
        Resources Planning Act (42 U.S.C. 1962a).
            (2) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

SEC. 3. NATIONAL WATER RESOURCES PLANNING AND MODERNIZATION POLICY.

    It is the policy of the United States that all water resources 
projects carried out by the Corps of Engineers shall--
            (1) reflect national priorities for flood damage reduction, 
        navigation, and ecosystem restoration; and
            (2) seek to avoid the unwise use of floodplains, minimize 
        vulnerabilities in any case in which a floodplain must be used, 
        protect and restore the extent and functions of natural 
        systems, and mitigate any unavoidable damage to natural 
        systems.

SEC. 4. MEETING THE NATION'S WATER RESOURCE PRIORITIES.

    (a) Report on the Nation's Flood Risks.--Not later than 18 months 
after the date of enactment of this Act, the Council shall submit to 
the President and Congress a report describing the vulnerability of the 
United States to damage from flooding and related storm damage, 
including the risk to human life, the risk to property, and the 
comparative risks faced by different regions of the country. The report 
shall assess the extent to which the Nation's programs relating to 
flooding are addressing flood risk reduction priorities and the extent 
to which those programs may unintentionally be encouraging development 
and economic activity in floodprone areas, and shall provide 
recommendations for improving those programs in reducing and responding 
to flood risks. Not later than 90 days after the report required by 
this subsection is published in the Federal Register, the 
Administration shall submit to Congress a report that responds to the 
recommendations of the Council and includes proposals to implement 
recommendations of the Council.
    (b) Prioritization of Water Resources Projects.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Council shall submit to Congress an 
        initial report containing a prioritized list of each water 
        resources project of the Corps of Engineers that is not being 
        carried out under a continuing authorities program, categorized 
        by project type and recommendations with respect to a process 
        to compare all water resources projects across project type. 
        The Council shall submit to Congress a prioritized list of 
        water resources projects of the Corps of Engineers every 2 
        years following submission of the initial report. In preparing 
        the prioritization of projects, the Council shall endeavor to 
        balance stability in the rankings from year to year with 
        recognizing newly authorized projects. Each report prepared 
        under this paragraph shall provide documentation and 
        description of any criteria used in addition to those set forth 
        in paragraph (2) for comparing water resources projects and the 
        assumptions upon which those criteria are based.
            (2) Project prioritization criteria.--In preparing a report 
        under paragraph (1), the Council shall prioritize each water 
        resource project of the Corps of Engineers based on the extent 
        to which the project meets at least the following criteria:
                    (A) For flood damage reduction projects, the extent 
                to which such a project--
                            (i) addresses the most critical flood 
                        damage reduction needs of the United States as 
                        identified by the Council;
                            (ii) does not encourage new development or 
                        intensified economic activity in flood prone 
                        areas and avoids adverse environmental impacts; 
                        and
                            (iii) provides significantly increased 
                        benefits to the United States through the 
                        protection of human life, property, economic 
                        activity, or ecosystem services.
                    (B) For navigation projects, the extent to which 
                such a project--
                            (i) produces a net economic benefit to the 
                        United States based on a high level of 
                        certainty that any projected trends upon which 
                        the project is based will be realized;
                            (ii) addresses priority navigation needs of 
                        the United States identified through 
                        comprehensive, regional port planning; and
                            (iii) minimizes adverse environmental 
                        impacts.
                    (C) For environmental restoration projects, the 
                extent to which such a project--
                            (i) restores the natural hydrologic 
                        processes and spatial extent of an aquatic 
                        habitat;
                            (ii) is self-sustaining; and
                            (iii) is cost-effective or produces 
                        economic benefits.
            (3) Sense of congress.--It is the sense of Congress that to 
        promote effective prioritization of water resources projects, 
        no project should be authorized for construction unless a final 
        Chief's report recommending construction has been submitted to 
        Congress, and annual appropriations for the Corps of Engineers' 
        Continuing Authorities Programs should be distributed by the 
        Corps of Engineers to those projects with the highest degree of 
        design merit and the greatest degree of need, consistent with 
        the applicable criteria established under paragraph (2).
    (c) Modernizing Water Resources Planning Guidelines.--
            (1) In general.--Not later than 2 years after the date of 
        enactment of this Act, and every 5 years thereafter, the 
        Council, in coordination with the National Academy of Sciences, 
        shall propose revisions to the planning principles and 
        guidelines, regulations, and circulars of the Corps of 
        Engineers to improve the process by which the Corps of 
        Engineers analyzes and evaluates water projects.
            (2) Public participation.--The Council shall solicit public 
        and expert comment and testimony regarding proposed revisions 
        and shall subject proposed revisions to public notice and 
        comment.
            (3) Revisions.--Revisions proposed by the Council shall 
        improve water resources project planning through, among other 
        things--
                    (A) focusing Federal dollars on the highest water 
                resources priorities of the United States;
                    (B) requiring the use of modern economic principles 
                and analytical techniques, credible schedules for 
                project construction, and current discount rates as 
                used by all other Federal agencies;
                    (C) discouraging any project that induces new 
                development or intensified economic activity in flood 
                prone areas, and eliminating biases and disincentives 
                to providing projects to low-income communities, 
                including fully accounting for the prevention of loss 
                of life as required by section 904 of the Water 
                Resources Development Act of 1986 (33 U.S.C. 2281);
                    (D) eliminating biases and disincentives that 
                discourage the use of nonstructural approaches to water 
                resources development and management, and fully 
                accounting for the flood protection and other values of 
                healthy natural systems;
                    (E) utilizing a comprehensive, regional approach to 
                port planning;
                    (F) promoting environmental restoration projects 
                that reestablish natural processes;
                    (G) analyzing and incorporating lessons learned 
                from recent studies of Corps of Engineers programs and 
                recent disasters such as Hurricane Katrina and the 
                Great Midwest Flood of 1993; and
                    (H) ensuring the effective implementation of the 
                National Water Resources Planning and Modernization 
                Policy established by this Act.
    (d) Revision of Planning Guidelines.--Not later than 180 days after 
submission of the proposed revisions required by subsection (b), the 
Secretary shall implement the recommendations of the Council by 
incorporating the proposed revisions into the planning principles and 
guidelines, regulations, and circulars of the Corps of Engineers. These 
revisions shall be subject to public notice and comment pursuant to 
subchapter II of chapter 5, and chapter 7, of title 5, United States 
Code (commonly known as the ``Administrative Procedure Act''). 
Effective beginning on the date on which the Secretary carries out the 
first revision under this paragraph, the Corps of Engineers shall not 
be subject to--
            (1) subsections (a) and (b) of section 80 of the Water 
        Resources Development Act of 1974 (42 U.S.C. 1962d-17); and
            (2) any provision of the guidelines entitled ``Economic and 
        Environmental Principles and Guidelines for Water and Related 
        Land Resources Implementation Studies'' and dated 1983, to the 
        extent that such a provision conflicts with a guideline revised 
        by the Secretary.
    (e) Availability.--Each report prepared under this section shall be 
published in the Federal Register and submitted to the Committees on 
Environment and Public Works and Appropriations of the Senate and the 
Committees on Transportation and Infrastructure and Appropriations of 
the House of Representatives.
    (f) Water Resources Council.--Section 101 of the Water Resources 
Planning Act (42 U.S.C. 1962a) is amended in the first sentence by 
inserting ``the Secretary of Homeland Security, the Chairperson of the 
Council on Environmental Quality,'' after ``Secretary of 
Transportation,''.
    (g) Funding.--In carrying out this section, the Council shall use 
funds made available for the general operating expenses of the Corps of 
Engineers.

SEC. 5. EFFECTIVE PROJECT PLANNING.

    (a) Definitions.--In this section:
            (1) Affected state.--The term ``affected State'' means a 
        State that is located, in whole or in part, within the drainage 
        basin in which a water resources project is carried out and 
        that 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).
            (3) Study.--The term ``study'' means a feasibility report, 
        general reevaluation report, or environmental impact statement 
        prepared by the Corps of Engineers.
    (b) Projects Subject to Independent Review.--
            (1) In general.--The Secretary shall ensure that each study 
        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 this section 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 in 
                writing to the Secretary 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 
                cultural, environmental, or other resources under the 
                jurisdiction of the agency, and requests in writing to 
                the Secretary the establishment of an independent panel 
                of experts for the project; or
                    (D) the Secretary determines that the project is 
                controversial based upon a finding that--
                            (i) there is a significant dispute 
                        regarding the size, nature, or effects of the 
                        project;
                            (ii) there is a significant dispute 
                        regarding the economic or environmental costs 
                        or benefits of the project; or
                            (iii) there is a significant dispute 
                        regarding the potential benefits to communities 
                        affected by the project of a project 
                        alternative that was not fully considered in 
                        the study.
            (3) 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) In general.--The Inspector General of the Army shall 
        appoint in the Office of the Inspector General of the Army a 
        Director of Independent Review. The term of a Director 
        appointed under this subsection shall be 6 years, and an 
        individual may serve as the Director for not more than 2 
        nonconsecutive terms.
            (2) Qualifications.--The Inspector General of the Army 
        shall select the Director from among individuals who are 
        distinguished experts in engineering, hydrology, biology, 
        economics, or another discipline relating to water resources 
        management. 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 
        under construction, in the preconstruction engineering and 
        design phase, or under feasibility or reconnaissance study by 
        the Corps of Engineers. The Inspector General of the Army may 
        establish additional criteria if necessary to avoid a conflict 
        of interest between the individual appointed as Director and 
        the projects subject to review.
            (3) 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.--Not later than 90 days before the release 
        of a draft study subject to review under subsection (b)(2)(A), 
        and not later than 30 days after a determination that a review 
        is necessary under subparagraph (B), (C), or (D) of subsection 
        (b)(2), the Director shall establish a panel of experts to 
        review the draft study. Panels may be convened earlier on the 
        request of the Chief of Engineers.
            (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 engineers, 
        hydrologists, biologists, and economists) who represent a range 
        of areas of expertise.
            (3) Limitation on appointments.--The Director shall apply 
        the National Academy of Science's policy for selecting 
        committee members to ensure that members of a review panel have 
        no conflict with the project being reviewed.
            (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) Notification.--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 120 days before the release of a draft study for a 
        project costing more than $25,000,000 or for which a 
        preliminary assessment suggests that 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.--A panel of experts established for a water 
resources project under this section shall--
            (1) review each draft study prepared for the project;
            (2) assess the adequacy of the economic, scientific, and 
        environmental models used by the Secretary in reviewing the 
        project and assess whether the best available economic and 
        scientific data and methods of analysis have been used;
            (3) assess the extent to which the study complies with the 
        National Water Resources Planning and Modernization Policy 
        established by this Act;
            (4) evaluate the engineering assumptions and plans for any 
        flood control structure whose failure could result in 
        significant flooding;
            (5) receive from the public written and oral comments 
        concerning the project;
            (6) submit an Independent Review Report to the Secretary 
        that addresses 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 study; and
            (7) submit a Final Assessment Report to the Secretary that 
        briefly provides the views of the panel on the extent to which 
        the final study prepared by the Corps adequately addresses 
        issues or concerns raised by the panel in the Independent 
        Review Report.
    (f) Deadlines for Panel Reports.--A panel shall submit its 
Independent Review Report under subsection (e)(6) to the Secretary not 
later than 90 days after the close of the public comment period or not 
later than 180 days after the panel is convened, whichever is later. A 
panel shall submit its Final Assessment Report under subsection (e)(7) 
to the Secretary not later than 30 days after release of the final 
study. The Director may extend these deadlines for good cause shown.
    (g) Recommendations of Panel.--
            (1) Consideration by secretary.--If the Secretary receives 
        an Independent Review Report on a water resources project from 
        a panel of experts under subsection (e)(6), the Secretary 
        shall, at least 30 days before releasing a final study for the 
        project, take into consideration any recommendations contained 
        in the report, prepare a written explanation for any 
        recommendations not adopted, and make such written explanations 
        available to the public, including through posting on the 
        Internet.
            (2) 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.
            (3) Submission to congress and public availability.--After 
        receiving an Independent Review Report under subsection (e)(6) 
        or a Final Assessment Report under subsection (e)(7), the 
        Secretary shall immediately make a copy of the report available 
        to the public. The Secretary also shall immediately make 
        available to the public any written response by the Secretary 
        prepared pursuant to paragraph (1). Copies of all independent 
        review panel reports and all written responses by the Secretary 
        also shall be included in any report submitted to Congress 
        concerning the project.
    (h) Record of Decision.--The Secretary shall not issue a record of 
decision or a report of the Chief of Engineers for a water resources 
project subject to review under this section until, at the earliest, 14 
days after the deadline for submission of the Final Assessment Report 
required under subsection (e)(7).
    (i) Public Access to Information.--The Secretary shall ensure that 
information relating to the analysis of any water resources project by 
the Corps of Engineers, including all supporting data, analytical 
documents, and information that the Corps of Engineers has considered 
in the justification for and analysis of the project, is made available 
to the public on the Internet and to an independent review panel, if a 
panel is established for the project. The Secretary shall not make 
information available under this paragraph if the Secretary determines 
that the information is a trade secret of any person that provided the 
information to the Corps of Engineers.
    (j) Costs of Review.--
            (1) In general.--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) Waiver.--The Secretary may waive these cost limitations 
        if the Secretary determines that the waiver is appropriate.
    (k) 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. 6. MITIGATION.

    (a) Mitigation.--Section 906(d) of the Water Resources Development 
Act of 1986 (33 U.S.C. 2283(d)) is amended--
            (1) in paragraph (1), by striking ``to the Congress'' and 
        inserting ``to Congress, and shall not choose a project 
        alternative in any final record of decision, environmental 
        impact statement, or environmental assessment,'', and by 
        inserting in the second sentence ``and other habitat types'' 
        after ``bottomland hardwood forests''; and
            (2) by adding at the end the following:
            ``(3) Mitigation requirements.--
                    ``(A) Mitigation.--To mitigate losses to flood 
                damage reduction capabilities and fish and wildlife 
                resulting from a water resources project, the Secretary 
                shall ensure that mitigation for each water resources 
                project complies fully with the mitigation standards 
                and policies established by each State in which the 
                project is located. Under no circumstances shall the 
                mitigation required for a water resources project be 
                less than would be required of a private party or other 
                entity under section 404 of the Federal Water Pollution 
                Control Act (33 U.S.C. 1344).
                    ``(B) Mitigation plan.--The specific mitigation 
                plan for a water resources project required under 
                paragraph (1) shall include, at a minimum--
                            ``(i) a detailed 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 Director of the United 
                        States Fish and Wildlife Service or the 
                        Director of the National Marine Fisheries 
                        Service, as appropriate, and each State in 
                        which the project is located;
                            ``(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 types and amount 
                        of restoration activities to be conducted, to 
                        permit a thorough evaluation of the likelihood 
                        of the ecological success and aquatic and 
                        terrestrial resource functions and habitat 
                        values that will result from the plan; 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.
            ``(4) Determination of mitigation success.--
                    ``(A) In general.--Mitigation under this subsection 
                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) Evaluation and reporting.--The Secretary 
                shall consult annually with the Director of the United 
                States Fish and Wildlife Service and the Director of 
                the National Marine Fisheries Service, as appropriate, 
                and each State in which the project is located, 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. Not later than 60 
                days after the date of completion of the annual 
                consultation, the Director of the United States Fish 
                and Wildlife Service or the Director of the National 
                Marine Fisheries Service, as appropriate, shall, and 
                each State in which the project is located may, submit 
                to the Secretary a report that describes--
                            ``(i) the ecological success of the 
                        mitigation as of the date of the report;
                            ``(ii) the likelihood that the mitigation 
                        will achieve ecological success, as defined in 
                        the mitigation plan;
                            ``(iii) the projected timeline for 
                        achieving that success; and
                            ``(iv) any recommendations for improving 
                        the likelihood of success.
                The Secretary shall respond in writing to the substance 
                and recommendations contained in such reports not later 
                than 30 days after the date of receipt. Mitigation 
                monitoring shall continue until it has been 
                demonstrated that the mitigation has met the ecological 
                success criteria.''.
    (b) Mitigation Tracking System.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary shall establish a 
        recordkeeping system to track, for each water resources project 
        constructed, operated, or maintained by the Secretary and for 
        each permit issued under section 404 of the Federal Water 
        Pollution Control Act (33 U.S.C. 1344)--
                    (A) the quantity and type of wetland and other 
                habitat types affected by the project, project 
                operation, or permitted activity;
                    (B) the quantity and type of mitigation required 
                for the project, project operation, or permitted 
                activity;
                    (C) the quantity and type of mitigation that has 
                been completed for the project, project operation, or 
                permitted activity; and
                    (D) the status of monitoring for the mitigation 
                carried out for the project, project operation, or 
                permitted activity.
            (2) Required information and organization.--The 
        recordkeeping system shall--
                    (A) include information on impacts and mitigation 
                described in paragraph (1) that occur after December 
                31, 1969; and
                    (B) be organized by watershed, project, permit 
                application, and zip code.
            (3) Availability of information.--The Secretary shall make 
        information contained in the recordkeeping system available to 
        the public on the Internet.

SEC. 7. PROJECT ADMINISTRATION.

    (a) Chief's Reports.--The Chief of Engineers shall not submit a 
Chief's report to Congress recommending construction of a water 
resources project until that Chief's report has been reviewed and 
approved by the Secretary of the Army.
    (b) Project Tracking.--The Secretary shall assign a unique tracking 
number to each water resources project, to be used by each Federal 
agency throughout the life of the project.
    (c) Report Repository.--The Secretary shall maintain at the Library 
of Congress a copy of each final feasibility study, final environmental 
impact statement, final reevaluation report, record of decision, and 
report to Congress prepared by the Corps of Engineers. These documents 
shall be made available to the public for review, and electronic copies 
of those documents shall be permanently available, through the Internet 
website of the Corps of Engineers.
                                 <all>