1.This Act may be cited as the
Water Resources Planning and
Modernization Act of 2007
.
2.In this Act:
(1)The term Council means the
Water Resources Council established under section 101 of the Water Resources
Planning Act (42 U.S.C. 1962a).
(2)The term Secretary means the
Secretary of the Army.
3.National water resources planning and
modernization policyIt 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
risksNot 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)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
criteriaIn 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)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)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)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 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
guidelinesNot 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)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)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)In carrying out this section, the Council
shall use funds made available for the general operating expenses of the Corps
of Engineers.
5.
(a)In this section:
(1)The term construction
activities means development of detailed engineering and design
specifications during the preconstruction engineering and design phase and the
engineering and design phase of a water resources project carried out by the
Corps of Engineers, and other activities carried out on a water resources
project prior to completion of the construction and to turning the project over
to the local cost-share partner.
(2)The term project study means a
feasibility report, reevaluation report, or environmental impact statement
prepared by the Corps of Engineers.
(b)Director of independent peer
reviewThe Secretary shall
appoint in the Office of the Secretary a Director of Independent Review. The
Director shall be selected from among individuals who are distinguished experts
in engineering, hydrology, biology, economics, or another discipline related to
water resources management. The Secretary shall ensure, to the maximum extent
practicable, that the Director does not have a financial, professional, or
other conflict of interest with projects subject to review. The Director of
Independent Review shall carry out the duties set forth in this section and
such other duties as the Secretary deems appropriate.
(c)
(1)Projects subject to planning
reviewThe Secretary shall
ensure that each project study for a water resources project shall be reviewed
by an independent panel of experts established under this subsection if—
(A)the project has an estimated total cost of
more than $40,000,000, including mitigation costs;
(B)the Governor of a State in which the water
resources project is located in whole or in part, or the Governor of a State
within the drainage basin in which a water resources project is located and
that would be directly affected economically or environmentally as a result of
the project, requests in writing to the Secretary the establishment of an
independent panel of experts for the project;
(C)the head of a Federal agency with authority
to review the project determines that the project is likely to have a
significant adverse impact on public safety, or on environmental, fish and
wildlife, historical, cultural, 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 on his or her own
initiative, or shall determine within 30 days of receipt of a written request
for a controversy determination by any party, that the project is controversial
because—
(i)there is a significant dispute regarding
the size, nature, potential safety risks, or effects of the project; or
(ii)there is a significant dispute regarding
the economic, or environmental costs or benefits of the project.
(2)Project planning review panels
(A)Project planning review panel
membershipFor each water
resources project subject to review under this subsection, the Director of
Independent Review shall establish a panel of independent experts that shall be
composed of not less than 5 nor more than 9 independent experts (including at
least 1 engineer, 1 hydrologist, 1 biologist, and 1 economist) who represent a
range of areas of expertise. The Director of Independent Review shall apply the
National Academy of Science's policy for selecting committee members to ensure
that members have no conflict with the project being reviewed, and shall
consult with the National Academy of Sciences in developing lists of
individuals to serve on panels of experts under this subsection. An individual
serving on a panel under this subsection shall be compensated at a rate of pay
to be determined by the Secretary, and shall be allowed travel expenses.
(B)Duties of project planning review
panelsAn independent panel
of experts established under this subsection shall review the project study,
receive from the public written and oral comments concerning the project study,
and submit a written report to the Secretary that shall contain the panel's
conclusions and recommendations regarding project study issues identified as
significant by the panel, including issues such as—
(i)economic and environmental assumptions and
projections;
(ii)project evaluation data;
(iii)economic or environmental analyses;
(iv)engineering analyses;
(v)formulation of alternative plans;
(vi)methods for integrating risk and
uncertainty;
(vii)models used in evaluation of economic or
environmental impacts of proposed projects; and
(viii)any related biological opinions.
(C)Project planning review record
(i)After receiving a report from an
independent panel of experts established under this subsection, the Secretary
shall take into consideration any recommendations contained in the report and
shall immediately make the report available to the public on the
Internet.
(ii)The Secretary shall prepare a written
explanation of any recommendations of the independent panel of experts
established under this subsection not adopted by the Secretary. Recommendations
and findings of the independent panel of experts rejected without good cause
shown, as determined by judicial review, shall be given equal deference as the
recommendations and findings of the Secretary during a judicial proceeding
relating to the water resources project.
(iii)Submission to congress and public
availabilityThe report of
the independent panel of experts established under this subsection and the
written explanation of the Secretary required by clause (ii) shall be included
with the report of the Chief of Engineers to Congress, shall be published in
the Federal Register, and shall be made available to the public on the
Internet.
(D)Deadlines for project planning
reviews
(i)Independent review of a project study shall
be completed prior to the completion of any Chief of Engineers report for a
specific water resources project.
(ii)Deadline for project planning review panel
studiesAn independent panel
of experts established under this subsection shall complete its review of the
project study and submit to the Secretary a report not later than 180 days
after the date of establishment of the panel, or not later than 90 days after
the close of the public comment period on a draft project study that includes a
preferred alternative, whichever is later. The Secretary may extend these
deadlines for good cause.
(iii)Failure to complete review and
reportIf an independent
panel of experts established under this subsection does not submit to the
Secretary a report by the deadline established by clause (ii), the Chief of
Engineers may continue project planning without delay.
(iv)An independent panel of experts established
under this subsection shall terminate on the date of submission of the report
by the panel. Panels may be established as early in the planning process as
deemed appropriate by the Director of Independent Review, but shall be
appointed no later than 90 days before the release for public comment of a
draft study subject to review under subsection (c)(1)(A), and not later than 30
days after a determination that review is necessary under subsection (c)(1)(B),
(c)(1)(C), or (c)(1)(D).
(E)Effect on existing guidanceThe project planning review required by
this subsection shall be deemed to satisfy any external review required by
Engineering Circular 1105–2–408 (31 May 2005) on Peer Review of Decision
Documents.
(d)
(1)Projects subject to safety assurance
reviewThe Secretary shall
ensure that the construction activities for any flood damage reduction project
shall be reviewed by an independent panel of experts established under this
subsection if the Director of Independent Review makes a determination that an
independent review is necessary to ensure public health, safety, and welfare on
any project—
(A)for which the reliability of performance
under emergency conditions is critical;
(B)that uses innovative materials or
techniques;
(C)for which the project design is lacking in
redundancy, or that has a unique construction sequencing or a short or
overlapping design construction schedule; or
(D)other than a project described in
subparagraphs (A) through (C), as the Director of Independent Review determines
to be appropriate.
(2)Safety assurance review
panelsAt the appropriate
point in the development of detailed engineering and design specifications for
each water resources project subject to review under this subsection, the
Director of Independent Review shall establish an independent panel of experts
to review and report to the Secretary on the adequacy of construction
activities for the project. An independent panel of experts under this
subsection shall be composed of not less than 5 nor more than 9 independent
experts selected from among individuals who are distinguished experts in
engineering, hydrology, or other pertinent disciplines. The Director of
Independent Review shall apply the National Academy of Science's policy for
selecting committee members to ensure that panel members have no conflict with
the project being reviewed. An individual serving on a panel of experts under
this subsection shall be compensated at a rate of pay to be determined by the
Secretary, and shall be allowed travel expenses.
(3)Deadlines for safety assurance
reviewsAn independent panel
of experts established under this subsection shall submit a written report to
the Secretary on the adequacy of the construction activities prior to the
initiation of physical construction and periodically thereafter until
construction activities are completed on a publicly available schedule
determined by the Director of Independent Review for the purposes of assuring
the public safety. The Director of Independent Review shall ensure that these
reviews be carried out in a way to protect the public health, safety, and
welfare, while not causing unnecessary delays in construction
activities.
(4)Safety assurance review
recordAfter receiving a
written report from an independent panel of experts established under this
subsection, the Secretary shall—
(A)take into consideration recommendations
contained in the report, provide a written explanation of recommendations not
adopted, and immediately make the report and explanation available to the
public on the Internet; and
(B)submit the report to the Committee on
Environment and Public Works of the Senate and the Committee on Transportation
and Infrastructure of the House of Representatives.
(e)
(1)The costs of an independent panel of
experts established under subsection (c) or (d) shall be a Federal expense and
shall not exceed—
(A)$250,000, 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)The Secretary, at the written request of
the Director of Independent Review, may waive the cost limitations under
paragraph (1) if the Secretary determines appropriate.
(f)Not later than 5 years after the date of
enactment of this Act, the Secretary shall submit to Congress a report
describing the implementation of this section.
(g)Nothing in this
section shall be construed to affect any authority of the Secretary to cause or
conduct a peer review of the engineering, scientific, or technical basis of any
water resources project in existence on the date of enactment of this
Act.
6.
(a)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)
(A)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)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)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)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)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
organizationThe
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 informationThe Secretary shall make information
contained in the recordkeeping system available to the public on the
Internet.
7.
(a)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)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)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.