II 110th CONGRESS 2d Session S. 2873 IN THE SENATE OF THE UNITED STATES April 16, 2008 Mr. Barrasso (for himself and Mr. Enzi) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Federal Water Pollution Control Act to establish a Corps of Engineers Board of Appeals for permits for certain water storage projects, and for other purposes.

1.

Short title

This Act may be cited as the Water Essential Storage To Enhance Regions in Need Act or the WESTERN Act.

2.

Corps of Engineers Board of Appeals for permits for certain water storage projects

Section 404(a) of the Federal Water Pollution Control Act (33 U.S.C. 1344(a)) is amended— (1)by striking The Secretary may issue and inserting the following: (1)

In general

The Secretary may issue ; and (2)by adding at the end the following: (2)

Requirements

(A)

Purpose and need statements

(i)

In general

Not later than 90 days after the date of receipt of a complete application for a permit for a water storage project under this subsection, the Secretary shall develop and provide to each applicant a purpose and need statement that describes— (I)whether the Secretary concurs with the assessment of, and alternatives for, the purposes and needs of the water storage project, as proposed by the applicant; and (II)in any case in which the Secretary does not concur with the assessment, an assessment developed by the Secretary of the purposes and needs of the project. (ii)

Effect on environmental impact statements

No environmental impact statement or similar analysis required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall commence with respect to a water storage project for which a permit is sought under this subsection until the date on which the Secretary provides to each applicant for the permit the purpose and need statement under clause (i). (B)

Records of decision

Before the date on which the Secretary issues a permit under this subsection, the Secretary shall provide to each applicant for the permit a record of decision describing all applicable conditions that will apply to the permit. (3)

Corps of Engineers Board of Appeals

(A)

Establishment

The Secretary shall establish a board of appeals, to be known as the Corps of Engineers Board of Appeals (referred to in this paragraph as the Board). (B)

Membership

The Board shall be composed of 5 members, to be appointed by the Secretary, of whom— (i)3 shall be representatives of State water development agencies; and (ii)2 shall be representatives of the Corps of Engineers. (C)

Duties

(i)

In general

The Board shall make determinations on all appeals relating to permits issued pursuant to this subsection for water storage projects, including any appeal regarding— (I)a purpose and need statement issued under paragraph (2)(A)(i); (II)a record of decision issued under paragraph (2)(B), including any condition on a permit described in the record of decision; or (III)any final decision of the Secretary to approve or disapprove a permit under this subsection. (ii)

Deadline

The Board shall make a determination regarding an appeal under clause (i) by not later than 90 days after the date on which the appeal is filed with the Board. (D)

Factors for consideration

In making a determination under subparagraph (C), the Board shall evaluate, as applicable— (i)any field decision of the Corps of Engineers regarding the purposes or needs of the applicable water storage project; (ii)any condition placed on a permit for the applicable project under this subsection, based on the record of decision for the project under paragraph (2)(B); and (iii)any determination by the Secretary to deny a permit under this subsection for the applicable project. (E)

Treatment of determinations

Notwithstanding any other provision of law (including regulations), effective on the date of enactment of this paragraph, a determination by the Board under this paragraph shall supercede any other appellate determination of the Corps of Engineers regarding permits under this subsection. .