II 109th CONGRESS 2d Session S. 2288 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.

1.

Short title

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

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.

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.

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.

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.

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.

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.