    [Senate Hearing 118-749]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 118-749

    WRDA 2024: STAKEHOLDER FEEDBACK ON USACE PROJECT PARTNERSHIP AGREEMENTS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS

                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               NOVEMBER 29, 2023
                                   __________

      Printed for the use of the Committee on Environment and Public Works

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                                       _______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    62-306                     WASHINGTON : 2026

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED EIGHTEENTH CONGRESS
                                 FIRST SESSION

                      THOMAS R. CARPER, Delaware, Chairman
              SHELLEY MOORE CAPITO, West Virginia, Ranking Member

    BENJAMIN L. CARDIN, Maryland         KEVIN CRAMER, North Dakota
    BERNARD SANDERS, Vermont             CYNTHIA M. LUMMIS, Wyoming
    SHELDON WHITEHOUSE, Rhode Island     MARKWAYNE MULLIN, Oklahoma
    JEFF MERKLEY, Oregon                 PETE RICKETTS, Nebraska
    EDWARD J. MARKEY, Massachusetts      JOHN BOOZMAN, Arkansas
    DEBBIE STABENOW, Michigan            ROGER WICKER, Mississippi
    MARK KELLY, Arizona                  DAN SULLIVAN, Alaska
    ALEX PADILLA, California             LINDSEY O. GRAHAM, South Carolina
    JOHN FETTERMAN, Pennsylvania

                   Courtney Taylor, Democratic Staff Director
                   Adam Tomlinson, Republican Staff Director

                             C  O  N  T  E  N  T  S

                                  ----------
                                                                       Page

                               NOVEMBER 29, 2023
                               OPENING STATEMENTS

    Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     1
    Capito, Hon. Shelley Moore, U.S. Senator from the State of West
      Virginia.......................................................     4

                                   WITNESSES

    Hague, Jimmy, Senior Water Policy Advisor, The Nature Conservancy     6
        Prepared statement...........................................     9
        Responses to additional questions from:
            Senator Carper...........................................    20
            Senator Fetterman........................................    24
    Wallace, Kirsten, Board Member, Interstate Council on Water
      Policy.........................................................    32
        Prepared statement...........................................    36
    Haase, Bren, Executive Assistant to the Governor for Coastal
      Activities, Chairman of the Coastal Protection and Restoration
      Authority Board................................................    41
        Prepared statement...........................................    44

    WRDA 2024: STAKEHOLDER FEEDBACK ON USACE PROJECT PARTNERSHIP AGREEMENTS

                                  ----------

                          WEDNESDAY, NOVEMBER 29, 2023

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:03 a.m. in
    room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper
    (chairman of the committee) presiding.
        Present: Senators Carper, Capito, Cardin, Whitehouse,
    Kelly, Fetterman, Ricketts, Boozman, Sullivan.

              OPENING STATEMENT OF HON. THOMAS R. CARPER,
                U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Carper. Good morning, everyone. Welcome to the
    Committee on Environment and Public Works. I am happy to be
    here with all of you. We warmly welcome our witnesses and
    others in the audience.
        Senator Capito, good morning to you and other members of
    our committee.
        There is a lot going on in the Senate today. You probably
    do not believe that, but there is. We are getting stuff done. I
    think just about every committee is meeting now. We will have
    people coming and going. There is a lot of interest in the
    issues we are going to be discussing here today.
        We appreciate each of you for making the time to join us
    after a grueling Thanksgiving holiday. I hope you had as much
    fun on your holiday as my family did.
        Today, we are here to discuss the U.S. Army Corps of
    Engineers' Project Partnership Agreements. What exactly are
    Project Partnership Agreements? I do not like acronyms a lot.
    EPA is Okay, but sometimes people get carried away with
    acronyms. I am going to ask you to refrain from the use of
    acronyms for the most part, so I can understand what you are
    saying. Sometimes people get carried away. Sometimes we get
    carried away.
        PPAs are documents signed by the Army Corps of Engineers
    and non-Federal project sponsors that guide work that is
    authorized under the Water Resources Development Act,
    affectionately known around here as WRDA. These projects are
    critical to coastal and inland flood risk mitigation,
    navigation, and ecosystem restoration, among other purposes.
        I will also say they are critical, because one of the major
    roles of the Federal Government, and State governments as well,
    and I say that as a recovering Governor, one of the major roles
    of government is creating a nurturing environment for job
    creation, job preservation. What we are going to be talking
    about here today is one of the major ingredients for creating
    that nurturing environment.
        I like to help people, and I think one of the best ways you
    can help folks is certainly making sure they have clean water
    to drink and clean air to breathe, but also make sure that they
    have a job, so they can support themselves and their family.
        As many of us know, despite the Army Corps' exceptionally
    important and challenging mission, the agency's funding needs
    far outweigh its available resources. Why does this matter?
    Well, the projects carried out by the Corps provide the
    backbone of America's water infrastructure. That work includes
    protecting communities from damaging floods, enabling billions
    in commerce through our ports and through our waterways, and
    restoring hundreds of thousands of acres of aquatic ecosystems.
    Corps projects also help prepare communities for extreme
    weather events, which we know are getting worse due to climate
    change.
        The importance of that work cannot be overstated. For
    example, the National Oceanic and Atmospheric Administration
    estimates that the threat of sea level rise is going to
    accelerate in the next 30 years if we do not do more about it.
    That is certainly going to impact many of the roughly 40
    percent of Americans who live in coastal counties, including my
    own.
        In addition, the seven most destructive storms since 2000
    have cost American taxpayers over $1.3 trillion. Let me say
    that again. I didn't believe it when I first saw this. I said
    to my staff, go check that out. The seven most destructive
    storms since 2000 have cost American taxpayers over $1.3
    trillion.
        These storms destroy homes and cars, and grind travel and
    tourism to a halt, and oftentimes uproot people's lives and not
    infrequently, take people's lives. Corps projects are there to
    defend against these disasters.
        Corps projects also help keep our economy moving, as I was
    saying earlier. The Corps is directly responsible for operating
    America's water highway, a 12,000-mile-long system of inland
    waterways that are vital to domestic and international
    commerce. Most of the markets for the products that we create
    in this Country are not in this Country, they are outside of
    this Country. The way we get, for the most part, our products
    to other places, we send a lot of stuff by air, but mostly it
    is on the water, and waterways that the Army Corps helps to
    make available and of course that they help enable are
    critically important.
        Each year, that expansive system, that 12,000-mile system
    of inland waterways, moves more than 500 million tons of
    commodities, 500 million tons of commodities, including 60
    percent of our Nation's agricultural exports. The Corps' work
    to help operate and maintain that system results in an economic
    benefit of nearly $14 billion each year.
        Given the range of benefits of Corps projects, it should
    come as no surprise that WRDA, the reauthorization of WRDA,
    continues to enjoy broad bipartisan support. We do a lot here
    in this room in a bipartisan way. Senator Capito and I
    subscribe to an aphorism, and I think I heard from our guy from
    Wyoming, it was right there where you are, Mr. Hague, and he
    said in testimony, at his confirmation hearing, he said,
    Bipartisan solutions are lasting solutions. Bipartisan
    solutions, I believe that with every fiber of my being.
        Our most recent WRDA passed the Senate in 2022 by a vote of
    93 to 1. That does not happen every day in the Senate. It
    happens almost never in the Senate, in a roll call vote, at
    least. Ninety-three to 1, and that piece of legislation, that
    WRDA legislation 2 years ago, ended up carrying with it to the
    President's desk the National Defense Authorization Act which
    the President signed into law. It is like WRDA was a
    locomotive, and one of the cars that it was pulling was the
    National Defense Authorization Act, which is a huge piece of
    legislation.
        Ranking Member Capito and I intend to continue this
    bipartisan track record with WRDA 2024. We solicit input from
    literally every single Senator, every State that is represented
    in the U.S. Senate. Our colleagues have been great to provide
    us with plenty of input, plenty of input. As many of you know,
    the bill is currently under development, thanks in no small
    part to robust input from many of our colleagues. Senator
    Capito and I intend to move it through our committee before
    next summer.
        That brings us to today's discussion on the Corps Project
    Partnership Agreements. Since kicking off the WRDA 2024 process
    in July, Senator Capito and I and our staffs have heard
    concerns that these agreements could be stalling critical
    construction projects. We need to understand what is causing
    these delays and what can be done about them.
        As I stated earlier, a Project Partnership Agreement is a
    guiding document between the Corps and a local project sponsor
    that outlines both the Federal and non-Federal stakeholder's
    roles and responsibilities for the construction and long-term
    care of the project.
        Since 2012, the Corps has dramatically changed the project
    agreement process, developing templates and streamlining
    requirements to provide consistency and fair treatment to
    stakeholders. Having said that, not every Corps project is the
    same. Stakeholders have raised with us, probably every member
    of this committee has raised with us that these agreements need
    to be made more flexible and that many of the requirements are
    cumbersome.
        Yet, given the importance of Corps projects for the safety
    and well-being of communities, non-Federal sponsors feel
    pressured to sign unfavorable Project Partnership Agreements.
    Ultimately, it is our job in Congress to ensure that Federal
    investments are protected. At the same time, we must also
    ensure that non-Federal stakeholders can support the projects
    and are not made to assume an unreasonable amount of risk.
        Having said that, we look forward to hearing from each of
    you, some of you have come a long way and we are grateful that
    you have done that, and we are looking forward to hearing about
    your experiences in working with the Corps to develop and
    implement Project Partnership Agreements.
        We also look forward to hearing your perspectives on what
    is going well as well as finding what we can do better. I say
    almost every day, everything I do I know I can do better. I
    think that is true of all of us. The idea here is to improve on
    what we have done before for many years.
        Before we do that, I want to yield to Senator Capito for
    whatever she might like to say. Senator Capito, we appreciate
    the opportunity to work with you and your team on this project
    again. This is a great one. I wish people around the Country
    who think we can never work together, I wish they could see how
    this committee works, especially on this issue. Thank you.

            OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
              U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

        Senator Capito. Thank you, Mr. Chairman. You are right; we
    do have a great track record of working together on WRDA, and
    we are going to continue that as we move into the next year.
        I welcome our witnesses. In my short conversation with Mr.
    Hague, I particularly welcome my fellow West Virginian. You
    need to hear this, he is from Charleston, West Virginia and is
    a proud graduate of Capital High School. Thank you for coming
    and being a part of this, all of you, but a special shout-out
    to my West Virginian.
        If you didn't see it last night, and I know Senator
    Ricketts was there, we lit the Christmas tree, the Capitol
    Christmas Tree, the people's Christmas tree, which came from
    the Mon Forest in West Virginia. I have just now thawed out
    from watching that, because it was so cold out there.
        [Laughter.]
        Senator Capito. Anyway, since 2014, we have kept to the
    biennial schedule of passing bipartisan legislation that
    authorizes water resources studies and projects. WRDA also sets
    national policies for the civil works program of the U.S. Army
    Corps of Engineers, and I look forward to continuing that track
    record, as I said.
        This summer, Chairman Carper and I, he mentioned this in
    his opening remarks, sent a letter to our Senate colleagues
    soliciting their requests for WRDA 2024. I appreciate the
    efforts of our Senate colleagues to submit their proposals for
    our consideration. I am pleased to say we received a
    significant number of requests, more than the last time, which
    demonstrates the strong interest in and necessity of this
    legislation.
        I have said previously it is important any WRDA bill
    supports the timely and efficient delivery of water resources
    projects, while continuing to meet national priorities.
    Flexibility is key to ensuring that the Corps can identify and
    carry out solutions that are tailored to address the needs and
    individual needs of our communities. Our Nation's water
    resources challenges are diverse, and communities know more
    about their unique needs than the policymakers here in
    Washington.
        We must also continue to preserve the role of non-Federal
    sponsors in the project delivery process and maintain the
    Corps' focus on its primary mission areas: navigation, flood
    and coastal storm risk management, and ecosystem restoration.
    Insight from our non-Federal sponsors on their experiences with
    completed and ongoing projects helps inform what, if any,
    modifications are needed to the Corps' authorities.
        Today, we will discuss, as the Chairman said, project
    partnership agreements, PPAs. In general, PPAs are legal
    documents between the Corps and a non-Federal sponsor for
    construction of an authorized water resources project. These
    agreements describe the project and the responsibilities of
    each party.
        The Corps has undertaken efforts to simplify this process
    for executing PPAs by standardizing model agreements and
    issuing guidance for certain types of projects. The Corps also
    considers deviations from the model agreements on a case-by-
    case basis.
        However, Federal law requires certain provisions to be
    included in the PPAs, limiting what modifications the Corps is
    able to consider in some instances. One of those statutorily
    required provisions is known as the hold and save clause. This
    provision, mandated by WRDA 1986, requires non-Federal sponsors
    to hold and save the United States free from damages due to the
    construction or operation and maintenance of the project,
    except for damages due to fault or negligence.
        PPAs also describe the operation, maintenance, repair,
    replacement and rehabilitation, or O&M, responsibility of the
    Federal Government and non-Federal sponsors. O&M
    responsibilities vary with project purpose. For certain
    projects, the non-Federal sponsor will be responsible for O&M
    activities in perpetuity, regardless of the useful life of the
    project.
        Some stakeholders have indicated that certain required
    language in PPAs can delay the execution of these agreements. A
    delay can extend the construction timeline for a project, and
    potentially and probably would lead to increased costs.
        This hearing will provide us an opportunity to learn more
    about these concerns and listen to proposed solutions. It will
    also highlight how non-Federal sponsors have successfully
    negotiated PPAs with the Corps.
        As we have this discussion today, it is important to
    remember that these projects require significant Federal
    investment in order to be realized. Ultimately, we must ensure
    that any changes to PPAs appropriately balance each parties'
    risks.
        I want to thank our witnesses today for sharing their
    perspectives on this topic. I would say anecdotally, in
    discussing the topic of our hearing today, somebody said it is
    in the weeds. You know, it is very wonkish as to what we are
    talking about and how this is going to finally shake out in our
    WRDA bill.
        I would say as we look at the map of the United States,
    every project that is done, whether it is done through a PPA or
    not, is absolutely essential to the safety and the
    environmental prosperity of every part of our Country. If the
    weeds are not right, the projects are not going to be right and
    the results are not going to be right.
        I think that highlights how important a hearing like this
    is today, and I thank the witnesses for coming.
        Thank you.
        Senator Carper. Thank you for those words, and thanks for
    the greater partnership we have forged over the last several
    years.
        I want to say, we are only as good as the people around us.
    We have great staff behind us, Democrat and Republican. We are
    grateful for their work in bringing us all together today as
    well.
        I am going to introduce our three witnesses. We need a
    lead-off hitter. I see somewhat of a famous name, like The
    Hague.
        [Laughter.]
        Senator Carper. Has anyone ever called you The Hague?
        Mr. Hague. Yes, Senator, that has been a nickname at
    different points in my life.
        Senator Carper. I can only imagine. I can not tell you some
    of the ones I have been called.
        Jimmy Hague, Senior Water Policy Advisor for the Nature
    Conservancy since, what, 2016? Is that right? Mr. Hague leads
    the development of the Nature Conservancy's Federal Freshwater
    Conservation Policy Priorities and coordinates advocacy across
    the organization's chapters. You have chapters in all 50
    States?
        Mr. Hague. Yes, Senator.
        Senator Carper. I thought so. We are glad you are here with
    us today, and appreciate all that the Nature Conservancy does.
    Please feel free to go ahead with your statement. Welcome.

      STATEMENT OF JIMMY HAGUE, SENIOR WATER POLICY ADVISOR, THE
                           NATURE CONSERVANCY

        Mr. Hague. Chair Carper, Ranking Member Capito and members
    of this Committee, thank you for the opportunity to testify
    today. I am honored to present to you the views of The Nature
    Conservancy concerning the U.S. Army Corps of Engineers Project
    Partnership Agreements. As Senator Capito noted, I was born and
    raised in West Virginia, so it is an extra honor to be here in
    front of my fellow West Virginians.
        Senator Carper. Where were you born?
        Mr. Hague. In Charleston, sir.
        Senator Carper. Okay.
        Mr. Hague. I know you have great West Virginia roots
    yourself.
        Senator Carper. Yes. Her dad was Governor of my State when
    I was born, when my sister and I were born.
        Mr. Hague. The Nature Conservancy is a global conservation
    organization dedicated to conserving the lands and waters on
    which all life depends. Guided by science, we create
    innovative, on-the-ground solutions to the world's toughest
    challenges so that nature and people can thrive together.
        In the United States, the Corps is critical to achieving
    our goals for healthy and resilient rivers, lakes, and coasts.
    The Conservancy has worked with the Corps on that mission
    through dozens of projects and programs across the Country. We
    contribute scientific expertise on the use, design and
    evaluation of nature-based solutions, assist with program
    implementation, and advocate for changes to modernize Corps
    procedures.
        The decades-long collaboration the Conservancy has built
    with the Corps has supported our conservation goals. The work
    we do together in communities across the Country has improved
    flood risk resilience, economic development and environmental
    protection. My written statement includes specific examples of
    our work together with the Corps.
        On a personal level, my work with the Corps has been some
    of the most fulfilling and rewarding of my career. I am always
    impressed by the dedication and skill of its staff at all
    levels of the organization, both those in uniform and their
    civilian employees.
        The Conservancy appreciates this committee's efforts to
    keep the Water Resources Development Act on a 2-year cycle
    every Congress since 2014, as well as your efforts in recent
    bills to emphasize nature-based solutions in the Corps' work.
    Your commitment to investing in and modernizing our Nation's
    water resources infrastructure in a bipartisan manner has been
    critical to the success of our collaboration with the Corps.
        The topic of today's hearing is an important one, since the
    regular WRDA cycle you have established is authorizing new
    projects for study and construction and is guiding the Corps to
    build projects which deliver multiple benefits, enabling more
    resilient communities. To achieve this goal, we should minimize
    the barriers to non-Federal project sponsors who agree to share
    the costs of building water resources projects with the Corps.
        Unfortunately, we know many project sponsors who feel the
    terms of the cost-sharing agreements are difficult to accept.
    Most Corps projects cost tens of millions to hundreds of
    millions of dollars, and at a 35 percent construction cost
    share, non-Federal sponsors must take on significant financial
    responsibility for a project, even though the Corps retains
    ultimate control over many project design and implementation
    decisions.
        On top of that, some of the requirements of the cost-
    sharing agreement all non-Federal sponsors must sign with the
    Corps create open-ended obligations for the non-Federal
    sponsor. First, the cost-share requirement remains the same,
    even if projects go over budget for any reason, including
    reasons beyond the non-Federal sponsor's control. Sponsors must
    cost share any and all project cost overruns.
        Second, project costs become the sole responsibility of the
    non-Federal sponsor after construction is complete, and the
    sponsor must operate and maintain the project in perpetuity.
    The uncertain nature of total construction costs and the
    unbounded commitment to operations and maintenance costs make
    it difficult, if not impossible, for the sponsor to estimate
    the true cost of a project and manage financial risks. Third,
    the requirement in the cost-sharing agreement to hold and save
    the Federal Government free from harm creates unbounded and
    unquantifiable legal risks for project sponsors, and can
    discourage them from sponsoring or agreeing to participate.
        Some of these requirements are rooted in statute, and they
    will need your leadership to change. This committee has taken
    steps to address some of those barriers, including in last
    year's WRDA bill, and I urge you to continue with that effort.
        Given the variety of projects the Corps builds, and unique
    local conditions and stakeholder needs, I urge you to consider
    a variety of solutions that will help sponsors contain their
    legal and financial risks. Non-Federal sponsors need your help
    to rebalance how risks are shared between the Army Corps and
    the non-Federal project sponsor of a water resources project.
    Doing so will unleash the power of potential local sponsors
    across the Country to partner with the Army Corps to deliver
    more and better projects.
        Thank you for the opportunity to testify today. I look
    forward to your questions.
        [The prepared statement of Mr. Hague follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Carper. Thank you for leading off for us.
        Next, we are going to hear from Kirsten Wallace. Ms.
    Wallace is on the board of the InterState Council on Water
    Policy, which is committed to stewardship of our Nation's water
    resources. In addition to this role, Ms. Wallace is the
    executive director for the Upper Mississippi River Basin
    Association. We look forward to hearing about your experiences
    and those of the Association with the Army Corps.
        Before you give us your statement, tell us, where are you
    from originally? Where did you start your life?
        Ms. Wallace. I am from Minnesota.
        Senator Carper. Now?
        Ms. Wallace. Minnesota.
        [Laughter.]
        Senator Carper. Got it right the first time. Good. Well,
    welcome from Minnesota.
        Your whole statement will be made part of the record. Go
    ahead.

    STATEMENT OF KIRSTEN WALLACE, BOARD MEMBER, INTERSTATE COUNCIL
                            ON WATER POLICY

        Ms. Wallace. Thank you, and good morning, Chair Carper,
    Ranking Member Capito, and distinguished members of the
    committee.
        My colleagues and I are here to urge Congress to remove or
    modify unreasonable requirements that currently restrict or
    deter non-Federal entities from participating as cost-share
    partners in implementing important water resource projects with
    the Army Corps of Engineers.
        We are grateful for today's opportunity to underscore the
    need to reform the Corps of Engineers' Project Partnership
    Agreements, which govern the cost-share relationship between
    the non-Federal sponsor and the Federal Government. We believe
    that a more equitable approach to these relationships will
    improve efficiencies in project delivery, improve partnership
    relationships, and stimulate the Nation's ability to leverage
    non-Federal resources.
        My name is Kirsten Wallace. I am the Executive Director of
    the Upper Mississippi River Basin Association, commonly
    referred to by its acronym, UMRBA, which supports the states of
    Illinois, Iowa, Minnesota, Missouri, and Wisconsin in their
    interState water resources planning and management of the Upper
    Mississippi River basin. UMRBA is a long-standing member of the
    InterState Council on Water Policy, and today, I am speaking on
    behalf of the InterState Council on Water Policy and its
    members.
        The InterState Council on Water Policy was established in
    1959, convening State and interState water resource managers
    and planners from across the Country. The Council evaluates
    policies affecting water resource management, develops
    solutions to commonly held challenges, and works
    collaboratively with Congress and Federal agencies to advance
    those solutions.
        Many of the Council's members and partners, States,
    interState organizations, local entities, nonprofit and private
    organizations, collaborate with the Federal Government through
    the Army Corps of Engineers. As our Nation faces enormous
    challenges to our water resources, we are even more compelled
    to lean into our partnerships with the Corps to optimize our
    resources, our networks, our knowledge, and our ability to
    shape a future of prosperity.
        Our ability to partner with the Corps through cost-shared
    projects is challenged by the liability provisions that govern
    the partnership between the Corps and the non-Federal sponsor.
    Project Partnership Agreements are legally binding documents
    that outline the responsibilities of non-Federal cost-share
    partners and the Federal Government for water resource
    projects.
        The key impediments include requiring the non-Federal
    sponsor to assume complete liability for constructed projects
    and operations, maintenance, repair, replacement, and
    rehabilitation in perpetuity. This results in a completely one-
    sided approach to the assumption of risk that is unsustainable
    for the non-Federal sponsors to shoulder.
        As a spokesperson for the InterState Council on Water
    Policy, our members want to share with you our conclusions that
    these issues of liability affect cost-shared projects
    nationwide and all of the Corps' mission areas, and that
    reforming project partnership agreements is in the national
    interest.
        The Association of Fish and Wildlife Agencies has created a
    map, shown on the screen, depicting the States for which their
    laws directly conflict with the liability provisions in the
    Corps' agreements, the dark orange, or whether they have
    indirect legal barriers, the light orange. As I had discussions
    yesterday, I believe West Virginia should be dark orange.
        As many as 22 States across the Country reported having
    laws against assuming the legal obligations required by the
    Corps. The InterState Council of Water Policy is joined by
    several interState organizations who are also actively working
    with Members of Congress and the committee to explain the need
    for reforming the Corps' project partnership agreements given
    the regional and local implications in their respective areas.
        These groups include the Association of Fish and Wildlife
    Agencies, National Association of Flood and Stormwater
    Management Agencies, Coastal States Organization, Delaware
    River Basin Commission, the Great Lakes Commission, the
    InterState Commission on the Potomac River Basin, the
    Susquehanna River Basin Commission, the Upper Mississippi River
    Basin Association, the National Audubon Society, Ducks
    Unlimited, the Nature Conservancy, the Theodore Roosevelt
    Conservation Partnership, and others.
        My colleague Jimmy Hague with The Nature Conservancy spoke
    to these issues from a nonprofit entity's perspective. My
    colleague, Bren Haase with the Louisiana Coastal Restoration
    and Protection Authority, will speak to these experiences in
    implementing PPAs. I will speak generally to the issues
    affecting the States nationally.
        Indemnifying a third party, including the Federal
    Government, is in direct conflict with many States'
    constitutions and laws. It requires the non-Federal party to
    promise financial resources for an indeterminate liability that
    may occur at an unknown time, at an unknown cost, for an
    unknown reason. Many State constitutions preclude agencies from
    obligating funds without an encumbrance against an
    appropriation and do not allow for incurring any indebtedness
    of any nature on behalf of the State until an appropriation for
    it has been made by the legislature.
        In addition, indemnification requires a State to assume
    liability beyond the extent to which many States' tort law
    allows.
        The current PPA terms legally obligate non-Federal sponsors
    to undefined and unbounded operations, maintenance, repair,
    rehabilitation, and replacement for water resource projects.
    This is challenging for non-Federal sponsors legally to assume
    because the obligation extends well beyond the period of
    analysis and project life. This policy essentially creates a
    permanent Federal hold on non-Federal property.
        The liability terms are problematic for cost-share sponsors
    in all Corps mission areas, water supply, flood damage
    reduction, disaster recovery, and ecosystem restoration.
    Although agreements have been executed and signed in many
    areas, that does not mean they are not problematic for the non-
    Federal sponsors. Sometimes non-Federal entities, States,
    interState organizations, local entities, or private
    organizations, will make the tough choice between securing
    financial resources to resolve a very important water resource
    problem over their own challenges in accepting the complete and
    total liability and assuming requirements in perpetuity.
        Sponsors for flood management projects and water supply
    projects often use their revenue source to partially offset the
    one-sided liability of the project terms and have to accept the
    consequences of being perpetually beholden to the Federal
    Government for the project structures. We must ask whether this
    is appropriate; is shifting the liability from the national tax
    base solely and completely to a smaller tax base appropriate,
    especially if the project is found to be in the national
    interest?
        Who is that tax base? Is it equitable for the Federal
    Government to push the complete risk to the non-Federal
    sponsor, whether a State, local government entity, or private
    organization? Non-Federal sponsors for ecosystem restoration
    projects often do not have an associated revenue source for the
    projects, so executing the agreements is much more problematic.
        In 1986, Congress recognized the need for local sponsors to
    have greater financial and decisionmaking roles and established
    a new cost-share formula. My understanding is the Federal
    Government was risk adverse to implementing flood projects on
    non-Federal lands, and Congress added a requirement that non-
    Federal sponsors fully indemnify the Corps.
        Since then, we have gained substantial experience in these
    non-Federal cost-sharing partnerships, and we better understand
    the implications to non-Federal sponsors. We are now asking
    Congress to reform this provision to create a more equitable
    approach to sharing risk. This request is not to free non-
    Federal entities from liability but rather to have the Corps
    share in that liability.
        We acknowledge and underscore the value of our
    relationships with our partners within the Corps who are
    working earnestly to advance important projects. These policies
    tear at the fabric of our partnership by creating unnecessary
    conflict and inefficient use of staff and other resources,
    ultimately delaying, and in many cases preventing, critically
    important benefits to the public.
        In closing, my colleagues and I are here today to urge you
    to remove or modify unreasonable requirements that currently
    restrict or deter non-Federal entities from participating as
    cost-share partners. We believe that reasonable and equitable
    partnerships will increase opportunities to leverage non-
    Federal investments to achieve local, regional, and national
    water resource goals.
        We call upon Congress to revise the statutes for which the
    Corps is using to justify these provisions, and we offer our
    assistance to work with you in resolving the impasse.
        As Congress and the Federal Government continue to
    prioritize non-Federal cost-share projects, we believe that
    these challenges to PPA execution must be resolved so that
    existing and newly authorized projects can be successfully and
    efficiently implemented.
        [The prepared statement of Ms. Wallace follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Carper. Thank you very much.
        Last but not least, we are going to hear from Bren Haase. I
    understand you are the Executive Assistant to the Governor of
    Louisiana. Who is the Governor of Louisiana?
        Mr. Haase. Governor John Bel Edwards.
        Senator Carper. Okay. I spoke to you earlier about him.
    Give him our best. He testified, if I am not mistaken, before
    this committee about a year ago. I think he sat in that very
    seat. That is the Louisiana seat.
        He is one of our favorites. Love it when our recovering
    Governors come to the Senate.
        I understand you are the Executive Assistant to the
    Governor of Louisiana for Coastal Activities, is that right?
        Mr. Haase. That is right.
        Senator Carper. The chairman of the Coastal Protection and
    Restoration Authority Board. Prior to this role, you served as
    the Deputy Executive Director and Division Chief of Planning
    and Research for the Coastal Protection and Restoration
    Authority. I understand that you are the lead author of the
    Constitution of Louisiana.
        [Laughter.]
        Senator Carper. No, that is a typo, I am sure. The lead
    author of the 2017 Louisiana Conference Master Plan for a
    Sustainable Coast. That is a mouthful. We thank you for that,
    and we thank you for being here today and participating in this
    hearing. We will learn from you and other witnesses in the next
    hour or two.
        Welcome. Your entire statement will be made part of the
    record. Go ahead.

     STATEMENT OF BREN HAASE, EXECUTIVE ASSISTANT TO THE GOVERNOR
    FOR COASTAL ACTIVITIES, CHAIRMAN OF THE COASTAL PROTECTION AND
                      RESTORATION AUTHORITY BOARD

        Mr. Haase. Thank you for that, Chairman Carper. I will be
    happy to relay those pleasantries to the Governor. I am sure he
    would extend the same to you as well.
        Ranking Member Capito, members of the committee, thank you
    for the invitation to testify today to provide feedback on the
    U.S. Army Corps of Engineers' Project Partnership Agreements.
    As you mentioned, my name is Bren Haase, and I have the honor
    of serving as Executive Assistant to Louisiana Governor John
    Bel Edwards for Coastal Activities, as well as Chairman of the
    Board for the State's Coastal Protection and Restoration
    Authority, or CPRA.
        CPRA was created by the Louisiana legislature specifically
    to partner with the Corps of Engineers on coastal protection
    and restoration projects. Our mission is to provide both
    hurricane protection and ecosystem restoration for South
    Louisiana. A strong partnership with the Corps is essential for
    coastal Louisiana to meet its coastal protection and
    restoration goals. We successfully partner with the New Orleans
    District of the Corps to deliver some of the most
    transformative coastal infrastructure projects in the Nation.
        Since its establishment in 2007, CPRA has signed
    approximately 15 PPA-related agreements and 25 feasibility
    cost-share agreements, design agreements or memoranda of
    understanding or agreements with the Corps of Engineers. These
    cover a variety of project types, and our experiences with them
    inform my testimony today.
        To that end, I would like to emphasize five key points. The
    first of those is the inertia of the status quo. This is often
    experienced by CPRA when negotiating PPAs with the Corp. We are
    generally presented with a take-it-or-leave-it scenario, a
    model agreements that may not be best for either partner or
    most efficient to advance a project. The alternative generally
    is to negotiate changes to the model PPA through the district
    up through the division and all the way to the headquarters, a
    prospect that can be difficult, confusing, and of course, cost
    precious time and money that none of us can afford.
        Non-Federal sponsors should be true partners, able to
    provide meaningful input on the terms of the partnership. More
    flexibility should be delegated to district managers to
    negotiate provisions that make the most sense for delivering
    projects as efficiently as possible.
        Second, land rights. Acquiring real eState rights and full
    fee title is impractical and not reasonably needed for many
    projects. Over 80 percent of coastal Louisiana's wetlands are
    privately owned. To achieve widespread coastal protection and
    restoration, we must partner with those landowners, most of
    whom will give the necessary land rights to complete coastal
    protection and restoration at no cost. We have been doing such
    projects in Louisiana for decades without acquiring property in
    fee title, and it has worked. There is no reason we can not do
    the same in partnership with the Corps of Engineers.
        Third, I will hit on O&M. There are several acronyms that
    have been used. In deference to the Chair, I will not go
    through that again.
        Senator Carper. The Chair wants to thank you for that.
        [Laughter.]
        Mr. Haase. We certainly share the concerns expressed by my
    colleagues here. There are other problems that sometimes arise
    related to O&M in project design or construction, which are
    generally led by the Corps of Engineers, that can carry over
    into a finished project. Of the terms in most PPAs, the Corps
    can require the non-Federal sponsor to conduct operations and
    maintenance for such deficient projects.
        The Corps should not be able to transfer a project with
    problems to a non-Federal sponsor, particularly when those
    problems have been identified previously during design or
    construction of that project.
        We also at times have paid for and conducted operation and
    maintenance on projects that are fully funded by the Corps,
    because they lack the necessary funding at the time to complete
    those activities. PPAs are generally silent on how to treat
    those expenditures. It would be helpful to have provisions to
    allow the non-Federal sponsor to receive credit against those
    expenditures for such works.
        Fourth, indemnification. This has been discussed a great
    deal, and I will just reiterate that we certainly agree with my
    colleagues here at the table today, and would reiterate that
    there needs to be a more equitable sharing of potential risk
    among project partners.
        Fifth, I will hit on cost-sharing. CPRA, like other non-
    Federal sponsors across the Country, must ensure that our
    limited financial resources are leveraged to the full extent.
    The use of deferred payment agreements crediting MOUs and the
    ability to perform work in kind have been extremely helpful in
    partnering with the Corp in the recent past.
        That said, some aspects of cost-sharing can be a challenge.
    Financial transparency provided through PPAs is essentially a
    one-way street. The Corps can examine the books of the non-
    Federal sponsor in detail, while the non-Federal sponsors has
    no such reciprocal ability. As a result, the non-Federal
    sponsor has to meet an unknown cost-share requirement. This has
    already been discussed. It just makes common sense for this
    arrangement to be reciprocal, since both partners are bearing
    the cost of implementing these projects.
        In conclusion, CPRA recommends this committee encourage the
    Corps to advance policies that align with the following two
    general principles: giving greater voices to the non-Federal
    sponsors, and increasing transparency. To do so, we suggest
    greater delegation of authority to district commanders to
    negotiate PPAs while allowing for streamlined appeals to higher
    levels of the Corps when needed.
        We certainly appreciate the Corps for being one of CPRA's
    most important project partners in our mission to protect and
    restore Louisiana's coast. We have been tremendously fortunate
    to be able to work with the New Orleans District, which has put
    on the ground some of the most transformative Corps projects
    across the entire Nation through these agreements.
        CPRA is confident we can work even more productively with
    the Corps to deliver projects for our State and Nation with
    improved PPAs.
        Thank you for your time and attention. I look forward to
    answering your questions.
        [The prepared statement of Mr. Haase follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Carper. Thank you for your testimony. It is great
    to see you, and to welcome all of you today.
        The first question I am going to ask is for all the
    witnesses. This is a question I am going to come back and ask
    you to answer for the record, not today, but for the record. I
    think in your testimony you had already begun to answer it
    fairly well.
        The question I am going to ask you to answer for the record
    is, would each witness briefly elaborate on the challenges and
    opportunities you see in partnering with the Corps? Your views
    are particularly relevant as we are beginning to develop WRDA
    2024. If you will do that for the record. We will have some
    other questions for the record, and will talk about that at the
    end of the hearing.
        As my colleagues know, we are always looking for, when we
    have a diverse panel, we are looking for consensus, like where
    you agree. Sometimes people think, well, repetition is a bad
    thing. Not necessarily. You have been pretty consistent talking
    about cost-shares, and cost overruns, who bears the
    responsibility. I think there is a lot of agreement on some of
    the indemnification issues.
        Let's just start off, Mr. Hague, with you. Just pick maybe
    three areas that you think are important areas where you think
    there is consensus amongst the three of you that is critically
    important and that we should take seriously those points? Go
    ahead. Give us three good ones.
        Mr. Hague. Absolutely.
        Senator Carper. Again, repetition is not a bad thing.
        Mr. Hague. Absolutely. I will repeat a lot of the things I
    think you have heard from the witnesses today, plus were
    included in my statement. I think the hold and save clause, as
    you have heard, is particularly problematic for all the
    sponsors to agree to that really does seem to be an unfair
    balance of a legal liability that we are forced to take on as
    sponsors of these projects.
        Two, that unbounded nature of the operations and
    maintenance commitment, which I should also point out, you do
    not always fully know the extent of that commitment until the
    project is fully constructed and the Corps presents you with
    the operations and maintenance manual. You have to agree, when
    you are signing the agreement, before construction even starts
    to those open-ended O&M obligations.
        Those would be the two high points that I would emphasize,
    and would love for you to focus on in this next WRDA bill.
        Senator Carper. I want one more. You can think about it.
    While you are thinking, we will turn to Ms. Wallace.
        Ms. Wallace. I agree with Mr. Hague, the indemnification
    hold and save clause is critical to reforming as well as
    unbounded operations and maintenance. To echo Jimmy's point,
    you sign onto those agreements when planning is 35 percent
    done, and the Corps remains in control of the rest of the
    project and who the construction contractor is, et cetera.
        Those two issues are really necessary for Congress to act
    on.
        Senator Carper. You have one more. Think about it and we
    will come back to you. You do not get out of here without it.
        Mr. Haase?
        Mr. Haase. Yes, sir, thank you, Senator. Yes, I want to add
    to those the point that I brought up in my oral testimony
    related to the transparency and what a final bill might
    actually be. We talked about cost overruns, increasing costs
    associated with negotiating PPAs, but also in project
    implementation. It is often difficult for the non-Federal
    sponsor to get a very clear picture of what essentially the
    bill due will be.
        There is a theme, I think, related to all these three
    issues, and that is certainty and predictability. All three of
    these things relate to uncertainty, which increases risks,
    obviously, on a non-Federal sponsor in delivering these
    projects and being able to make good on the commitments that we
    make by signing those.
        Senator Carper. Okay. Let me stick with you for another
    minute or two, Mr. Haase. I think one of my questions was, I
    was going to ask you to please let us know what you think the
    Coastal Protection Restoration Authority considers before
    signing an agreement with the Corps. I think you have spoken to
    that. As a followup, how do you strike the balance between
    moving quickly and moving deliberately to advance large scale
    coastal restoration and protection projects?
        Mr. Haase. That can be a difficult balance to strike, as
    you all certainly are aware. As I mentioned in my oral
    testimony, sometimes we feel like we are stuck with a sort of a
    take-it-or-leave-it kind of approach, where we have a model PPA
    before us, there is a tremendous need across the Country in all
    of our States, certainly in Louisiana, where we have
    experienced natural disasters just like other parts of the
    Country, there is a tremendous need to respond to those and
    protect our citizens from storm surges, flooding, and restore
    our ecosystem for all the reasons that is important.
        There is a calculus that has to be gone through essentially
    to evaluate the risk of delaying those kinds of projects and
    having citizens remain at risk into the future or going ahead
    and in some cases basically holding our noses and agreeing to
    terms that we might not particularly want to agree to, so we
    can get projects done.
        There is no science to that, that is probably more art than
    science. In general, we have moved forward where we needed to
    for the good of the citizens of the State of Louisiana to get
    projects on the ground that will help reduce risk to them and
    improve the ecosystem in which they live.
        Senator Carper. Good, thanks. I am going to go back really
    quickly, Mr. Hague, I gave you and Ms. Wallace the opportunity
    to give us three areas where you think there is a great deal of
    consensus and agreement. You have one more, each of you. do not
    pass it by, go ahead.
        Mr. Hague. I would love this committee to look at
    flexibility in meeting the cost-share requirements. In the last
    WRDA bill, you did tackle this a little bit in allowing
    sponsors to use other Federal funds that meet the complementary
    purposes of the project.
        The other place I would love to have some attention is when
    sponsors have material that they have received as a donation
    that can be applied for the purposes of the project. A lot of
    times the Corps does not give the sponsor full credit for
    bringing those materials to a project. That could be a simple
    thing for this committee to fix in the next WRDA bill and give
    sponsors a lot more flexibility now to meet the requirements.
        Senator Carper. Good, thank you.
        Very briefly, Ms. Wallace, one more shot.
        Ms. Wallace. Lean into partnerships and encourage the Corps
    to provide collaborative leadership along with the local
    sponsor.
        Senator Carper. Thank you.
        Senator Capito, and after Senator Capito has asked her
    questions, we are going to turn to the Senator from another
    large State, Rhode Island. Senator Whitehouse, welcome today.
    Then Senator Ricketts. Thank you.
        Senator Capito. Thank you.
        Mr. Haase, you have in your capacity or prior capacity
    actually negotiated one of these PPAs, is that correct? More
    than one?
        Mr. Haase. Yes.
        Senator Capito. Okay. When you have had a disagreement, and
    you say that you have to work out, you get the model and then
    you try to, what is the length of time to try to overcome that
    disagreement? Does it ever get to the point where you never
    really do? How have you worked those out in the past?
        Mr. Haase. We do have a lot of experience in negotiating
    those, Senator, thank you for the question. It can take quite a
    long time, it can take months to negotiate the terms of these
    agreements, of course. That is where sort of the calculus of
    weighing the advantages, perhaps, to negotiating better terms
    for the non-Federal sponsor in these agreements, does it
    outweigh the potential risk, of course, of not getting a
    project done, or having that project being delayed and those
    costs being increased or perhaps become infeasible in some way.
        In terms of kind of the mechanism for negotiating those, we
    work very closely with our local district, the New Orleans
    District, obviously, to try to negotiate those terms. At times
    we have had to bring those negotiations to the division and
    again up to headquarters, often, as well.
        Senator Capito. Have you ever walked away from one? Have
    you been able to get disagreements put to rest?
        Mr. Haase. I do not know if we have ever walked away from
    one. That is a good question. I am not aware that we have. We
    have signed many under duress, I would say. I do not know that
    we have walked from any. I would have to get back to you.
        Senator Capito. I was just curious.
        Then, if you were a first-time non-Federal partner looking
    at this, what one piece of advice would you give a first-time
    applicant to become a partner with the Corps, under these
    circumstances that we have now?
        Mr. Haase. If I might take the liberty of mentioning two
    things.
        Senator Capito. Of course.
        Mr. Haase. I would say be aware of what other non-Federal
    sponsors around the Country are agreeing to, know what those
    other agreements look like around the Country, to learn from
    those experiences and negotiations that other non-Federal
    sponsors have gone through.
        Second, I would say it is imperative to have a very good
    working relationship with your local district, the district
    commander. They of course are the ones that will elevate
    disagreements to division and to headquarters, and they can be
    your best advocates at times. Having a good, trustful working
    relationship with the districts is very, very important.
        Senator Capito. Thank you.
        This is for the panel. This is on the hold and save
    language. I mentioned in my opening statement, we have gone
    through this, but I am going to dig down a little bit into it.
    The 1986 law requires that PPAs include hold and save language.
    This language indemnifies the Corps except for when damages are
    due to the fault or negligence of the Corps.
        In thinking about this, I am trying to think, Mr. Hague, I
    will go to you first, what kind of circumstance could occur
    that would not be fault or negligence that would be an
    exception where the liability would fall to the non-Federal
    partner? I am trying to envision this.
        Mr. Hague. Thank you for the question. Right. It is a
    difficult question to answer with specific examples. When I
    have talked to lawyers about the hold and save clause, in a lot
    of ways they are most worried about those sort of unforeseen
    and unimaginable instances, which is why it is particularly
    problematic, because it is a perpetual indemnification of the
    Federal Government for any reason except where the non-Federal
    sponsor, who has the burden of proof, can show that the Corps
    was negligent.
        I think that requirement is particularly problematic for
    non-Federal sponsors for a couple of reasons that you have
    heard today, one of which is, the Corps does retain a lot of
    the authority for filing decisions around planning and
    execution of these projects.
        When you have a situation of a partnership where one
    partner, the Corps, has so much control over project design and
    execution, and the other partner has to indemnify them and
    should have the burden of proving fault or negligence, that is
    a really tough balance to swallow for a sponsor, not to mention
    some of the State law objections that you have heard mentioned
    as well. That creates specific challenges for States where
    those conflicts exist.
        Senator Capito. Right. Ms. Wallace, do you have any
    examples of things that you have thought of, or your group has
    thought of, that might hold to these exceptions?
        Ms. Wallace. Yes, and I think Mr. Haase can answer that
    question, I think he has examples. ICWP does not have examples
    like that that we would want to speak to.
        I can say from a State perspective that it still would
    conflict with the constitutional law for States to sign up for
    an unknown cost and unknown time for an unknown reason.
        Senator Capito. Okay, so the States in red that have
    conflicts, do they still go through with PPAs or are they just
    absolutely prohibited because they have to sign this agreement?
        Ms. Wallace. Some have, for the same reason that you spoke
    to, which is that you stand in between a Federal resource,
    Federal dollars, for an important project. More and more,
    States are saying, we can not do this.
        Senator Capito. Mr. Haase, do you have an example?
        Mr. Haase. I do, in fact. A tangible example of this would
    be for projects that we have been involved in where pile
    driving, for example, is involved. Through the normal course of
    pile driving, even if it is done correctly, there can be damage
    to adjacent properties. It has been our experience that the
    Corps has viewed that as being, that liability as being
    indemnified, essentially.
        We believe that should be a project cost. It is something
    that occurs in the normal course of doing business of
    constructing projects, and again, we think it should be a
    shared project cost, not the responsibility of the non-Federal
    sponsor.
        Senator Capito. Thank you for that example. Thank you.
        Senator Carper. Thank you, ma'am.
        Senator Whitehouse, welcome. Good to see you.
        Senator Whitehouse. Thank you very much. Thank you for
    doing this. I think particularly as we see sea level rise
    accelerating, our coastal States have a real sense of urgency
    about making sure that we can work effectively, timely and
    fairly with the Army Corps of Engineers.
        I would reiterate what I have told this committee before,
    which is that the flooding funding of the Army Corps of
    Engineers tends to be heavily, heavily, heavily biased toward
    upland, inland river flooding. There have been years for which
    every $100 spent on upland and inland flooding, $1 was spent on
    coastal flooding. When you look at what climate change portends
    for coasts, when you look at what our map in Rhode Island shows
    our coast is going to look like in the decades ahead, this is a
    very, very serious problem. We need to make sure that the Army
    Corps is going to be responsive to it.
        Let me particularly welcome Bren Haase here, because he was
    kind enough to have dinner with Senator Cassidy and myself when
    I visited Louisiana, what, 4 years ago now, to look at the work
    going on down there to respond to Louisiana's rather
    spectacular loss of property to sea level rise. I was grateful
    for his time and expertise then, and I am grateful, sir, for
    your time and expertise now. It is good to see you again. I
    hope all is well.
        We have heard about the sponsor share, requiring a certain
    amount of investment and risk, cost overruns adding further
    potential investment and risk, maintenance and operations being
    delegated to the sponsor, adding further financial exposure,
    and liability opening up and unknown can of potential risk,
    worms. In addition to that, it strikes me that even with all of
    those difficulties, if you could plan in an orderly way through
    time what an Army Corps project was going to look like and how
    it was going to roll out, that would make it a lot easier on
    the local sponsors.
        My experience has been that the timing of Army Corps
    projects is very much also uncertain, often, and certainly
    unknown when you try to begin. You have the additional variable
    of not knowing when you are going to have to spend the money,
    in addition to not knowing how much you are going to have to
    spend in all of those four areas.
        Is that an observation that is unique to Rhode Island? Or
    is that an observation that you have seen in your worlds as
    well? Mr. Haase, let me start with you.
        Mr. Haase. The short answer to the question is no, it is
    not just an observation from Rhode Island. It is certainly
    something that we have experienced as well.
        The when, again, is an extremely important factor in all
    this, and it gets back to the theme I mentioned earlier, which
    is predictability and certainty on all of these things. With
    less predictability comes less certainty that we are going to
    be able to be good partners and deliver what we have agreed to
    deliver on. That is something that we certainly have
    experienced in Louisiana.
        Senator Whitehouse. You mentioned that when the Corps is a
    partner in a project, the Corps can seem inflexible and overly
    committed to the status quo. I think that is a very important
    signal, particularly when the future is unknown. You do not
    know how quickly things are going to roll out. It can be very
    hard to get into the Corps bureaucracy and get real responsible
    answers on any kind of a reliable or timely basis.
        The last thing I will mention, I see my friend Dan Sullivan
    here, who does not quite have this exact problem, but small
    States and communities that have big projects. The other
    question here is, I think what banks would call leverage. If
    you are in the State of California, if you are in the State of
    Texas, if you are in the State of New York, and there is a very
    significant Army Corps project that goes in and you are the
    sponsor, the non-Federal sponsor, then how that turns out as a
    percentage of your State's budget or local community's budget
    can be a very minor thing. If it triples or doubles or gets
    moved from year to year in ways that you can not control, that
    is a little bit more manageable.
        Rhode Island is looking at having to build an entirely new
    hurricane barrier to defend our capital city from predicted
    flooding that will flood right through the downtown business
    zone, so that existing buildings will be underwater, not in the
    upper stories, but their front doors will be underwater. The
    main entrance to city hall is up a grand staircase. Well, the
    grand staircase is predicted to flood up to a certain point.
    All the operating doors along the sides that people use would
    flood out. You would presumably have to arrive at the city hall
    of Providence stairs in a boat and climb your way up.
        Getting that fixed by having a proper hurricane barrier is
    a really big deal. That is going to be enormously, enormously
    expensive. For small States with huge projects, we have a real
    problem that I would like to flag as I close out.
        Thank you, Chairman.
        Senator Carper. Just to reiterate the point that Sheldon is
    making, I do not know if this is correct or not, but I have
    been saying it for years, every 100 minutes they lose a piece
    of land in Louisiana the size of a football field. Is that
    still true?
        Mr. Haase. Yes, sir, on average that is true.
        Senator Carper. That is amazing. That is incredible.
        I need to take a phone call, and I will be right back.
    Senator Capito is going preside for now, and I will be right
    back. Thanks very much.
        Senator Capito.
        [Presiding.] All right. Senator Ricketts?
        Senator Ricketts. Thank you, Chairman Carper, and thank
    you, Ranking Member Capito. Thank you to our witnesses for
    being here today to share your perspectives. I have often
    talked about the Army Corps of Engineers and my problem when I
    was Governor about their performance, anything from how long it
    took them to issue permits to how they were managing water
    storage that actually increased the chance for flooding, and
    then what they were doing with regard to flood control.
        I am anxious to use WRDA to improve the governance of the
    Army Corps of Engineers, especially focusing on the fact that
    these projects need to be led by natural resource districts,
    municipalities and local communities. Flood control, in my
    opinion, needs to be the first priority for the Army Corps, and
    especially along the Missouri River. They should not be
    undermining that.
        Before I get into some of these other topics, though, one
    of the things that the Army Corps of Engineers has rolled out
    is their permit finder. As we review the permit finder, it
    seems to be outdated already and lacks updates. If we are going
    to be able to manage these projects, it seems we have to have
    the proper information in there to be able to, and that needs
    to be prioritized, these tools to monitor the progress.
        For all the witnesses, I would love you to share your
    experience with the Army Corps' permit finding data base. Have
    you tried to navigate this? What has been your experience?
        Mr. Hague?
        Mr. Hague. Senator, thank you for the question. I do not
    have any experience navigating the permit finder just yet, but
    I would be happy to followup with our conservation staff on the
    ground to see if they have, and report back to you.
        Senator Ricketts. That would be great. I would appreciate
    it. Just contact our office. I am not looking for a big, long
    essay, I just want to know about your experience with it.
        Ms. Wallace?
        Ms. Wallace. We have also not had experience with the
    permit finder data base. I didn't know it existed.
        Senator Ricketts. Oh, Okay, maybe that is part of the
    problem with the Army Corps of Engineers, they didn't get that
    tool out there. That is why they are not updating it, because
    nobody knows it exists.
        Mr. Haase?
        Mr. Haase. Yes, sir, thank you, Senator. We do have a
    little experience with the permit finder data base, and have
    found it actually to be relatively good in our case. Most of
    our permits and our actions that are pending are included in
    the data base and we are able to find those and query those
    well.
        Senator Ricketts. I would also note that I have had
    problems with the Army Corps in the past. The relationship
    between the State of Nebraska and the Army Corps is improving
    with the leadership we have had there for the last couple of
    Colonels that have come through. That has been a good deal. I
    think Colonel Hudson and Colonel Newbauer have all done a good
    job.
        Ms. Wallace, you talked a little bit earlier about project
    partnerships, especially for small, local communities. How does
    the current PPA structure deter sponsorships? In Nebraska, we
    have primarily natural resource districts. We have 23 of them
    across the State that are all locally funded by property tax.
    How does the current PPA discourage something like a small
    entity like that from getting involved in a PPA?
        Ms. Wallace. Exactly. I think on one side you have Federal
    investment that meets what the local entity can put together
    for an important water resource project. You have a lot of
    energy and motivation toward signing that PPA. On the flip
    side, you have long-term consequences of fully indemnifying the
    Federal Government and taking on perpetual O&M, basically,
    having a Federal hold on your property and your tax base. It is
    shifting from a larger tax base, that consequence to a much
    smaller tax base for a project that is in the national
    interest.
        That comment earlier rang true. Who is that tax base and
    can they afford it, the project?
        Senator Ricketts. Right. Maybe you can expand upon that a
    little bit just about, if you are a small taxing base, and you
    are attempting a big project, and you have to take on full
    liability for the operations and maintenance as well as any
    sort of problems, especially, you said, 35 percent of the way
    through the project, you are actually taking this on.
        Talk about that a little bit more, if you could. Have you
    seen specific instances of that where communities or small
    entities have said, hey, we are not going to do this because it
    is just too much?
        Ms. Wallace. We have had States, organizations, entities
    say they cannot sign Project Partnership Agreements because of
    the unknown costs and time of that cost, the reason for that
    cost, and what that means for them long-term financially.
        Senator Ricketts. In your estimation, would some of these
    projects be in the national interest, as you have described
    before?
        Ms. Wallace. Correct.
        Senator Ricketts. The idea here is that we have small
    entities where you are taking on, the local property taxpayers,
    in the case of Nebraska, they would have to take on these huge
    responsibilities to be able to meet the current requirements.
    That is just not going to be possible sometimes.
        Maybe projects that are in the national interest are not
    being done because of the requirement to have that local
    participation? Is that fair?
        Ms. Wallace. That is exactly correct.
        Senator Ricketts. Thank you very much, Ms. Wallace. I think
    Mr. Haase also mentioned this, about the flexibility, having
    flexibility with the Corps. Certainly my experience as Governor
    was the Corps often has its rules and does not feel like it has
    the flexibility to be able to change those, to get up the chain
    of command takes time, all that sort of thing. I think there
    are some opportunities here for us to be able to take a look at
    that and see what we can do.
        I appreciate your comment about having the local districts
    have more flexibility in negotiating these agreements, because
    they are the ones on the ground there, and certainly when you
    have local entities, they know exactly what their communities
    need. I think more flexibility would also help us to be able to
    get that done faster.
        Thank you.
        Ms. Wallace. Thank you.
        Senator Capito. Thank you.
        Senator Cardin?
        Senator Cardin. Thank you, Madam Chair. Let me thank our
    witnesses.
        Army Corps projects are critically important to my State of
    Maryland. We recognize the challenges with Project Partnership
    Agreements. Senator Ricketts mentioned, as many, the loss of
    opportunity because of the affordability and risk factors that
    we are not able to take full advantage of the Army Corps
    projects.
        I want to take it from a little bit different angle. These
    projects in many cases have also national significance. It is
    not just the local benefit of the project to the entity that is
    submitting the project, but also to our Nation. The Chesapeake
    Bay I have talked about many times in this committee. It is a
    national resource, it is a national treasure, the largest
    estuary in our hemisphere. It is endangered, and it requires
    constant attention.
        We have had Army Corps projects, partnership agreements, to
    deal with the Chesapeake Bay. The largest, from the point of
    economic impact, was Poplar Island. It was novel in its time,
    the first environmental restoration using dredged materials in
    order to restore an island in the Chesapeake Bay.
        You go back 100, 150 years ago, there were several
    habitable islands in the Chesapeake Bay. They are almost all
    gone because of erosion and weather circumstances, et cetera.
    Poplar Island at one time was habitable. It was down to just a
    few acres, and we restored it through using dredged material,
    through an Army Corps project, through a Project Partnership
    Agreement.
        It is critically important for the economics of our region,
    because we are keeping our harbor and the channels dredged at
    the proper level, and having a place to dispose of the material
    that is not only without controversy, it is popular. People
    want it.
        At the same time, we are restoring an environmental island
    that is now a major area for migratory birds, it has restored
    wetlands which are critically important to filter the pollution
    in the Bay. It has all these positive impacts.
        Now, we are just about at capacity at Poplar Island. We now
    have Mid-Bay. Mid-Bay is now moving forward, another island
    that disappeared that will be restored, that will have benefit
    for the economics of the ports through the channels and will
    also have a major impact on our commitment to our environment
    moving forward.
        Mr. Hague, I would ask you this question. Yes, I am
    sensitive to the needs of easing the liability requirements.
    Should not there be special consideration given to those
    projects that have a national significance, such as
    environmental restoration? I know that at the Nature
    Conservancy, that is your mission. Should not we be having some
    considerations given in these partnership agreements when there
    is more than just the local benefit from the project?
        Mr. Hague. Senator, thank you for the question, and thank
    you for your championing the Bay. You are exemplary in that
    role. Certainly, we have worked with you and your office over
    the years on a variety of Chesapeake Bay work with the Corps.
    Nature Conservancy has been involved on oyster restoration in
    the Bay for many years with Maryland DNR and Virginia Marine
    Resources. That is a global model for how to do oyster
    restoration.
        Re-using dredged material, as you said, is an excellent
    opportunity to align where that dredged material is coming from
    in the Bay versus where it should go or can go for a lot of the
    multiple purposes that you have identified. We appreciate your
    support for all those options with the Corps and the Bay.
        On your question, there are certainly examples of Congress
    looking at restoration projects and saying it is of national
    significance and should be a Federal function and making those
    costs 100 percent Federal. As you were thinking about reforms
    to the PPA, that could be a way to look at it, that a lot of
    these projects are unique and that some of them are of national
    significance, and may be very amenable to the kind of approach
    you are talking about for nationally significant eco-projects.
        Senator Cardin. I might point out, oyster restoration is
    another good example where we used partnership agreements.
    Blackwater, trying to restore inlands in Blackwater through the
    use of dredged material. All those are Army Corps type projects
    that could be subject to consideration as to their importance
    to our Nation, not just to the local community. Blackwater is a
    national refuge, so it is not really local from that point of
    view. We will be looking at those types of considerations.
        Thank you, Mr. Chairman.
        Senator Carper.
        [Presiding.] Senator Cardin, thank you very, very much, not
    just for joining us but you are a highly valued member of this
    committee.
        I would say to our witnesses, we talked a little bit about
    backgrounds, and Senator Sullivan, the witnesses who were good
    enough to share with us where they are from, and a little bit
    about themselves personally. I would say, to turn the tables
    here, we have three people sitting up here who are retired
    military, a retired Marine colonel, Senator Kelly, a retired
    Navy captain, and the last time I checked, I am a retired Navy
    captain.
        We just celebrated about a month or so ago the anniversary
    of the birthday of the Marine Corps. That is a big day. In
    order to get someplace, the Navy provides the transportation
    for the Marines, the last time I checked.
        All right, Senator Sullivan. That was my introduction.
        Senator Sullivan. Thank you, Mr. Chairman. I appreciate
    that.
        I am going to tee up a more specific question than we have
    been working on here, with the Chairman's good help. Mr. Hague,
    I am interested in the Nature Conservancy's view on this in
    particular. It is something I am actually working on with
    Senator Kelly right now as we speak.
        This involves indigenous lands, tribal, Native lands in
    Alaska. In 1971, Congress passed what is called the Alaska
    Native Claims Settlement Act, ANCSA. I will not go into all the
    background, but it is the largest indigenous land claims
    settlement probably in the world, certainly in America, 44
    million acres of land in Alaska went to the Native people to
    manage and own, actually in fee simple. It is not like the
    lower 48 reservation system. It was very innovative, helps with
    the development of these communities.
        Unfortunately, Congress gave a lot of this land, 44 million
    acres, I think that is bigger than almost every State in the
    Country, a lot of the land was contaminated, like severely
    contaminated. Here you go, Native people. Here is your land
    settlement. Oh, by the way, it is completely contaminated.
        Believe it or not, for years, the EPA under CERCLA was
    going to hold these Native communities, Native corporations,
    liable for the pollution, like we are going to sue you to clean
    up the land that we gave you that was polluted. That was
    absurd. It took a bill, Senator Carper and I got it passed in
    2017, to say no, come on Feds, do not be stupid. The Native
    people are not liable for cleaning up contaminated lands that
    the Feds gave them contaminated.
        We fixed that. It only took several years. I really
    appreciate the Chairman weighing in on my amendment, co-
    sponsoring it. He said it was righting this wrong.
        Here is the next idea. We all care a lot about mitigation
    banking. My State has 65 percent of all wetlands in America.
    These are big issues for us. We are trying to work with the
    Corps in this committee to get legislation that would say Okay,
    when you do mitigation banking, wetlands, if you are doing
    that, and let's say you actually are mitigating in terms of a
    cleanup of a previously contaminated land in Alaska, that that
    would count with the Corps. It is complicated, but it is an
    innovative idea.
        The idea that the Feds are going to come to Alaska and
    cleanup all this contaminated land that they gave the Native
    people, it is probably never going to happen, because it is
    literally in the tens of billions, if not hundreds of billions
    of dollars. It is not going to happen. We have to get some
    cleanup from the Feds. This is an innovative approach.
        Senator Kelly and I are looking to introduce legislation
    that would have that provision and a second provision
    championed by Senator Kelly to establish a pilot program to
    allow the Army Corps to enter PPAs with Indian tribes to allow
    them to provide full project management control for the
    construction of eligible projects.
        I know you guys at the Nature Conservancy say you are
    experts on these kinds of mitigation banks. What do you think
    of an idea like that, that helps Native indigenous people
    cleanup their lands, but maybe from a source that involves
    mitigation bank, not from the traditional way, saying the Feds
    are going to clean up, which they should have, they should have
    never given the lands, 44 million acres, half of it was
    polluted? What do you think of that?
        Mr. Hague. Thank you, Senator.
        Senator Sullivan. I know you do not have the details, but
    in general. You guys do this a lot, so I am curious. We want to
    try and get this over the goal line in the committee. The
    Chairman has already worked with us, the staff is working on
    this, it is a big, innovative idea that we think is really
    important and timely.
        Mr. Hague. Thank you, Senator, for the question. I
    certainly appreciate your leadership on fighting on behalf of
    your constituents. I know from our chapter up in Alaska that we
    have been in contact with folks on this kind of topic, the
    brownfields team, the Alaska Native Tribal Health Consortium, I
    believe. We are definitely looking to build a partnership there
    for remediation of these kinds of lands. It is something we are
    looking into very seriously.
        Of course, the Nature Conservancy has a lot of experience
    with mitigation banking nationally, setting up banks and
    running banks in different States. It is an approach that we
    embrace quite strongly as a way to get innovative financing
    approaches to the kind of conservation work we need to get
    done, where there is not an obvious source of funding elsewise.
        It is a concept I would love to look at, if we are able to
    share the details, and report back to you.
        Senator Sullivan. Good. We will do that as a part of this
    committee's followup. We are working through the committee
    here, staff, Senator Kelly and I and our bipartisan bill on
    these innovative issues, to try and help tribal indigenous
    communities that need help. A lot of them are unfortunately on
    lands that are polluted. Then they can not undertake economic
    development and other things like that.
        We would welcome your interest and eventually your support
    if you want to take a look at the language we are working on
    with the staff of this committee.
        Thank you, Mr. Chairman. It is a big issue that hopefully
    we can resolve.
        Senator Carper. Thanks. I appreciate the chance to work
    with you and your team on this.
        Senator Kelly, welcome. Good to see you.
        Senator Kelly. Thank you, Mr. Chairman. Senator Sullivan, I
    look forward to getting this across the finish line as well. It
    is really important in the State of Arizona as well. We have 22
    Native American tribes, and often have similar issues with
    polluted land or land that needs to be cleaned up.
        We have had some success with tribes working with the Army
    Corps. I was with Governor Stephen Lewis of the Gila River
    Indian Community just on Saturday at a football game,
    University of Arizona versus Arizona State. The annual in-State
    bowl game went very well for UofA, not so well for ASU.
        Senator Sullivan. Who do you root for in that game?
        Senator Kelly. I have mixed feelings. I live close to the
    University of Arizona. My eldest daughter is a student at the
    University of Arizona, my younger daughter is a graduate of
    ASU.
        Senator Carper. My wife is a graduate of ASU, Appalachian
    State University.
        [Laughter.]
        Senator Kelly. They are both great schools. I am going to
    have to get one of those jerseys like Kelce's mother has, half
    on one side, half on the other.
        This hearing is really important to identify other ways
    that the Corps can partner with communities on projects. One of
    the things that I have championed with Congressman Stanton,
    also from Arizona, was the creation of Section 595, the Rural
    Arizona Water Infrastructure Program. This was about 3 years
    ago, one of the first things I did when I got to the U.S.
    Senate. I am coming up on being here for 3 years. It has gone
    by pretty quickly.
        This 595 helps small and underserved communities in Arizona
    partner with the Army Corps to build drinking water, water
    conservation, flood control, and wastewater infrastructure.
    When he has appeared before this committee in the past,
    Secretary Connor has pointed to this program as an example of
    how the Army Corps can help make investments in the west to
    respond to long-term drought conditions.
        There is just one problem here, and that is that many
    projects funded through this program still do not have
    finalized PPAs with the Corps. In fact, we have some
    communities like the city of Buckeye, Arizona, which has been
    waiting for more than 2 years to finalize a Project Partnership
    Agreement.
        These projects are often rather small dollar projects,
    usually less than $3 million. Especially for projects that help
    Arizona communities respond to drought conditions, years is too
    long to wait.
        Mr. Hague, you mentioned in your testimony that the Nature
    Conservancy does lots of work with the Corps and local project
    sponsors. What challenges are faced by local sponsors when it
    takes years for the Corps to finalize a Project Partnership
    Agreement?
        Mr. Hague. Thank you for the question, Senator. When you
    have a project that is delayed like that and it takes many
    years, there are a variety of problems, of course, that could
    come up.
        You do think about the issue of time being money, and
    certainly with the Army Corps, that is the case as well. We
    have been involved in projects where if there is a very long
    gap between when a project is authorized, originally
    envisioned, and when you can sign a PPA and start construction,
    things like the cost of the real eState necessary for the
    project can go up dramatically. We have actually had instances
    where we have had to come back to Congress and get a project
    reauthorized at a higher level because of those kinds of
    delays.
        The quicker you can get to signing the easier it is. There
    are a lot of internal obstacles for that. I think any time that
    you are trying to negotiate a Project Partnership Agreement
    that requires on up to say, headquarters level for approval, we
    do see significant delays, at least of a year in how long that
    review at headquarters takes.
        Senator Kelly. Have you seen communities just get
    frustrated by this and give up?
        Mr. Hague. I do not have an example specifically of where a
    community has walked away. A lot of communities I think are
    either, they are faced with a choice of a take-it-or-leave-it
    in a lot of cases. They have a great need that they can only
    achieve these kinds of projects with the Corps.
        They either need to take the agreement as is, and maybe
    take on terms that they are really not comfortable with, or
    push for those kinds of higher level reviews that can delay
    projects for years and drive up the cost of doing business.
        Senator Kelly. What are some of the tools available, here
    in my remaining time, that the Corps could use, administrative
    tools that they could use to sign these agreements?
        Mr. Hague. The Corps has developed a bunch of model
    agreements, a couple of dozen model agreements. These are
    different template models that you could use for an
    environmental infrastructure project like you are discussing,
    an ecosystem restoration project, a flood control project.
    There are a variety of different models. As long as you are
    sponsoring or willing to accept that model sort of as is, you
    can get it done very quickly.
        Any time you want to seek a deviation from that model, even
    a non-substantive deviation, that is going to require review by
    the division, and if you are looking for a substantive
    deviation, that is going to require review by headquarters.
    That is where things can really get delayed.
        They do have these model agreements, and have delegated
    some decisionmaking authority from headquarters down to
    division. Those have helped. Any time you are seeking
    deviations, it slows things down, and you can not get around
    the indemnification and operations and management challenges we
    have discussed here today, either way.
        Senator Kelly. Thank you, Mr. Hague.
        Thank you, Mr. Chairman.
        Senator Carper. Thank you, Senator Kelly.
        Senator Fetterman, I am going to yield to Senator Capito
    for a couple of questions, and we will come to you next. Thank
    you.
        Senator Capito?
        Senator Capito. Thank you, Senator Fetterman.
        I just have a quick question. We have kind of dug down deep
    on the indemnity thing, I think I understand that issue. Let's
    talk about the operation and maintenance responsibility in
    perpetuity, trying to figure out ways to improve that. You
    said, I think Ms. Wallace or somebody said that you have to
    sign these agreements at the 35 percent design phase. Is that
    correct?
        Ms. Wallace. That is even in the planning.
        Senator Capito. Even in the planning, Okay. How would you
    improve that, besides just wiping the whole thing out? That is
    not going to happen, we do not think. What would you say, Mr.
    Hague, that would have meaningful impacts?
        Mr. Hague. Right. I believe in your opening statement you
    referred to the useful life of the project. I think that is a
    concept that might be very helpful to latch onto. We have
    talked a lot about the operations and maintenance
    responsibility. I think in truth it is operations, maintenance,
    repair, rehabilitation and replacement responsibility. It is an
    even longer acronym, if you pull it out.
        That final R of that acronym is replacement. That kind of
    requirement also can be particularly problematic for a sponsor
    when they are signing a PPA very early on in the process to
    consider having to replace a project over and over and over
    again.
        Our experience mostly in the ecosystem restoration realm,
    you can imagine situations where you have a useful life of
    project, you have achieved the project purposes, you have sort
    of restored natural functioning, and it would be tremendously
    helpful for the sponsors if there was a way to tie the end of
    their obligations some way to that useful life of a project, so
    that we know going on that there is an end point somewhere down
    the line.
        Senator Capito. Good suggestion.
        Ms. Wallace?
        Ms. Wallace. That undefined period is so important, as Mr.
    Hague said, there is an obligation, and that obligation is to
    the Corps for the design manual, the O&M manual.
        Senator Capito. Right, that they give you at the end. Okay,
    I got that.
        Ms. Wallace. Yes, at the ribbon cutting. The question
    becomes, can the sponsor then decide what to do with that
    replacement, or is it beholden to the Federal Government.
        Senator Capito. I see.
        Ms. Wallace. At the end of a design period, at least there
    is a cap on who that obligation is to, if it is to their local
    tax base, or to themselves or to the Federal Government.
        Senator Capito. Mr. Haase, do you have any suggestions in
    there?
        Mr. Haase. I would reiterate Mr. Hague's comments that the
    useful, reasonable sort of life of the project is the operative
    language that should be used.
        Senator Capito. Is that a standard that you can find? Is
    that something that the Corps, you would say, Okay, this dam is
    going to last 45 years, that is the useful life? Are those
    measurements out there to be able to figure that out?
        Mr. Haase. They are. The projects that we are involved in
    with the Corps typically have a design life and a period of
    analysis associated with them. That is well defined, yes.
        Senator Capito. Okay, thank you. Thank you, Mr. Chairman,
    and thank all of you. I am sorry I have to duck out. I
    appreciate it, and it is good to see everybody.
        Senator Carper. Senator Capito, thank you so much.
        Senator Fetterman, welcome. Good to see you.
        Senator Fetterman. Thank you, Mr. Chairman. I just want to
    say that I am a gigantic fan of the Army Corps, really. I wish
    I had a shirt that I could say that, but they do not have it in
    my size.
        I live literally right on the Mon River, and I have seen
    the kind of work you have done. I have actually been at the
    ribbon cuttings for some. The important work you have done has
    generated another century of commerce on the river. Again,
    thank you for that. I could never figure out how you get it
    done, but you guys do. You get it done, and I am really in awe
    of your work.
        Now you are working with our delegation to work on the
    lockage on the Allegheny as well, and that is important as
    well. We are grateful. Now I am here to talk about other
    important issues in which you are involved.
        I am the last speaker, and this is not exactly as sexy or
    as interesting as who Taylor Swift is dating. We are here to
    talk about a really important issue in counties all across
    Pennsylvania, whether it is Clinton or Elk or Northumberland.
    They have significant issues of acid mine drainage. Not on the
    tip of the tongue of a lot of Pennsylvanians or Americans. It
    is really important in Pennsylvania.
        Now I want to ask you about the kind of support we would
    need from the Corps. That is why I am proud to work with my
    colleague, the best Senator in Pennsylvania, Senator Casey, on
    this kind of work.
        Mr. Hague, what can we learn from the Corps, from other
    environmental programs, to ensure that the Corps works are
    effectively working within communities to address this acid
    mine drainage?
        Mr. Hague. Thank you for the question, Senator. I am also a
    huge fan of the Army Corps. We at the Nature Conservancy have
    done incredible work with them over decades doing ecosystem
    restoration across this Country. I was also born and raised in
    West Virginia, not too far from your State. I really appreciate
    your focus on the acid mine drainage issue. It is something I
    am familiar with.
        The Corps is perhaps uniquely capable in this world of
    doing some of the largest, most complex ecosystem restoration
    work that there is. Training the resources of the Army Corps on
    the issues of acid mine drainage might be particularly helpful
    for your home State.
        Apropos of the topic of this hearing, one of the things I
    might suggest is thinking again about, if there is a way to,
    the ways to constrain the sponsors of those kinds of projects,
    constrain their financial or legal risks. I think particularly
    with acid mine drainage, where you might have an ongoing
    discharge of contaminated water, you might want to think
    specifically about how we can encourage non-Federal sponsors to
    join in those efforts by finding some ways to articulate an end
    point at which they can plan around their financial
    commitments.
        Senator Fetterman. Limits on the financial resources, are
    there laws on the books that are working against that kind of
    an outcome? Or whether some of the abandoned mines--is there
    anything more specific that is driving it?
        Mr. Hague. Yes, Senator. A lot of the problem is that
    sponsors of all projects, and I think this would apply for
    restoration in the acid mine drainage context as well, do have
    to sign these Project Partnership Agreements that have similar
    requirements in them that are rooted in law. To hold and save
    the Federal Government harmless is something that is rooted in
    statute as well as this commitment to doing operations and
    maintenance on these works is something that is rooted in
    statute. Those things would be particularly powerful if this
    committee could address them in WRDA 2024.
        Senator Fetterman. We do not have the time to really drill
    down on that. I do not do much well, but I do hire people that
    are a lot smarter than I am. I have a staff that is very much
    part of this, and very much educating me. We would like to
    continue to have that conversation so we can be most effective
    in addressing that specifically, what is really at the root of
    some of these challenges that we have, to be more informed and
    to be a more effective Senator, to address this. Thank you.
        Mr. Chairman, I have 23 seconds left, and I cede that back
    to the Chair.
        Senator Carper. Well, I am going to use those 23 seconds
    well. You talked about surrounding yourself with people smarter
    than you. When I was elected Governor, a former Governor came
    to see me. He gave me some great advice. He was an older guy,
    probably about 80 years old by then, Bert Carvel, from Laurel,
    Delaware. He said, ``Governor Tom,'' I had been Governor for
    all of a month, and he said, ``I have some words of advice.'' I
    said, ``What are they?'' He said, ``First one is, the main
    thing is to keep the main thing the main thing.'' The other
    thing he said is, ``Always hire people smarter than you.'' I
    have tried to do both of those. Obviously, you come from the
    same school as I do.
        Senator Fetterman. I am honored to be a member of your
    committee. Thank you.
        Senator Carper. The honor is ours, thank you. Thanks for
    being here today.
        In baseball, they have a term they use, telegraphing a
    pitch, the way you hold a ball, the pitcher holds the ball,
    releases the ball sort of gives the hitter an idea of what the
    pitcher is throwing. I am going to telegraph a pitch, unless
    another member of the committee shows up.
        The last question I am going to ask you today is just to
    see if there is anything else you would like to add. Looking at
    this hearing, looking back, thinking about what you have been
    asked, what you have not been asked, maybe a closing thought or
    two from each of you. We will do that.
        In anticipation of that, let me just say, we talked earlier
    about every 100 minutes Louisiana loses a piece of land the
    size of a football field. I do not know about you; I watched a
    lot of football over the weekend. Louisiana is a pretty big
    State, but it can not last forever at the rate we are going.
        Having said that, the economy, we do not think often about
    good news in this body, or maybe even in this Country. There is
    a way to look at things negatively, we are pretty good at doing
    that. Finding the good news is sometimes buried.
        With respect to the economy, it is pretty darned good. I
    have been around for a while and I have seen some really bad
    economies, you have too. It has been pretty darned good in the
    last 3 years or so. I have been saying it is like 10 million or
    11 million, I learned today it is over 13 million jobs that
    have been created in the last 3 years or so, which is pretty
    astounding. Our unemployment rate, I think for the last 3
    years, has been coming in under 4 percent. I think the
    unemployment rate today for our Country is about 3.9 percent.
    Historically, that is a really good stretch. Hopefully, we can
    keep it going.
        I am told that our employers in this Country have added in
    the last couple of years about 240,000 jobs a month. Think
    about that; 240,000 jobs a month, about a quarter million jobs
    a month for our economy. The number of people that are
    unemployed looking for jobs is small compared to the number of
    jobs that are out there going on. We hear those numbers every
    week or so from the Department of Labor.
        GDP had a good month, a good year, 3 percent is considered
    really good GDP growth. For this quarter, it has been over 5
    percent, over 5 percent. That is the good news.
        The reality is strong economies do not last forever.
    Eventually we will fall into recessions, the whole world falls
    into recession sometimes. What we want to make sure of is when
    that happens the recessions are as shallow as can be and as
    short as can be, and we get back on the right track. One of the
    ways to make sure that we get back on the right track is to do
    the kind of things for our Country, for our States that we are
    talking about here today.
        A big part of it is the ability to ship around the world
    the products, the goods that we create here in all of our
    States. Without the Army Corps of Engineers doing the work to
    help enable shipping to move through our waterways throughout
    this Country, on our coasts, in our ports, like the Port of
    Wilmington is one example, but without that, we are not going
    to come back from a recession as quickly in the future. We want
    to make sure that our economy remains strong and the capability
    to do more with even less is realized.
        The other thing I want to say is, most of us have heard of
    the golden rule, we are a Country of a lot of different
    religions. As it turns out, every major religion on the planet
    has a golden rule in it. If you are Protestant, Jewish,
    Catholic, Muslim, Buddhist, Hindu, they all have it. When I
    give commencement addresses, I say to the graduates, I give
    them a couple of rules to keep in mind to be successful, aim
    high, tell them to work hard, tell them to embrace the golden
    rule. I tell them do not quit. Aim high, work hard, embrace the
    golden rule, do not quit.
        I tell them that the golden rule is in every major religion
    of the world, and if it is something that is in every major
    religion of the world, maybe we ought to pay some attention to
    it. Nobody has invoked the golden rule here today, but actually
    I think part of what we are talking about is treating other
    people the way we would want to be treated, and at the same
    time, making sure they can have a better quality of life in
    States across America.
        Any last thoughts that any of you would like to share with
    us before I wrap it up? Mr. Hague?
        Mr. Hague. Thank you, Senator, for the opportunity. I have
    not had a chance today to thank this committee enough for the
    work you have done to reform these PPAs in the past. I would
    refer you to my written statement, which does include several
    of the improvements that Congress has made to help sponsors
    through these processes.
        One of them that I would point out is from WRDA 2016. We
    have talked a lot about the operations and maintenance
    requirement. That WRDA bill in 2016 did create a little bit of
    a relief for the operation and maintenance for the non-
    structural elements and non-mechanical elements of the
    ecosystem restoration projects.
        That might be an opportunity for you in your upcoming WRDA
    bill to look at leveraging that authority, perhaps expanding it
    to other project types with the structural elements and
    ecosystem restoration. I think that is a really good starting
    point for thinking about ways to give non-Federal sponsors some
    certainty that there is an end date to their financial
    obligations.
        Thank you.
        Senator Carper. Good. Thanks for that.
        Ms. Wallace, a parting thought or two.
        Ms. Wallace. Thank you. I want to reiterate my appreciation
    to the committee for this important issue.
        We are missing out on the benefits of investments on
    important non-Federal lands. We are not fully realizing the
    potential to improve our Nation's water resources, because we
    are limiting the possible locations of those investments. If
    Congress does elect to resolve this issue, we could place our
    investments where the need and resulting benefit are the
    greatest.
        Thank you.
        Senator Carper. Thank you.
        Mr. Haase. Thank you, Senator Carper.
        One thing I would mention that we have not yet today is
    that it would be good for the Corps of Engineers to update its
    guidance for local cooperative agreements for local partners.
    That has not been updated since 1989. If done in coordination
    with a group of non-Federal sponsors from across the Country,
    it might be a good launching pad to implement some of the
    things we have discussed here today.
        Then last, I would just leave you with a thought that while
    we are talking about PPAs, we are talking about indemnity, we
    are talking about some of these weedy things, these are all
    related to projects that have real impacts to communities and
    to economies across the Country. They are important that we
    address in order to support all those things for our States and
    for our Nation.
        Thank you.
        Senator Carper. All right, good. Thanks.
        I said at the beginning of the hearing, if it is not
    perfect, make it better, and bipartisan solutions are lasting
    solutions. As hard as we try, every 2 years when we pass the
    WRDA bill, it is not perfect.
        We know there are perfections out there somewhere, and our
    determination is to get closer every couple of years to that
    perfection and make sure that we are laying the groundwork for
    a stronger economy, a better economy, more jobs for people, and
    frankly, doing the right thing by our environment.
        I want to close; we want to give you some followup
    questions. I mentioned we want to submit some questions for the
    record, as you might know, and might expect. I am looking at
    this, by 4 p.m. today, we would like to have the responses
    tomorrow. Well, that is not true.
        [Laughter.]
        Senator Carper. We are going to ask our colleagues to
    submit their written questions for the record by 4 p.m. on
    Wednesday, December 13th. That is when we are asking our
    committee to have their questions for the record. We will
    compile those at the committee level, working with our friends
    on the Republican side, we will send those questions to each of
    you and we will ask you to reply by next year, January 3d.
        With that, I once again want to give my thanks to Senator
    Capito and all our colleagues who have been able to join us
    today, and especially to the members of our committee staff,
    both minority and majority. We would not be able to have these
    hearings without them.
        We are going to take what you provided us today, in
    addition to that which comes from our questions for the record,
    and see if we can not come up with an even better WRDA the next
    time around.
        Anything else? With that, as we say here, in Senate
    language, it is a wrap. With that, the hearing is adjourned.
        [Whereupon, at 11:43 a.m., the hearing was adjourned.]

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