[Congressional Record Volume 148, Number 118 (Wednesday, September 18, 2002)]
[Senate]
[Pages S8758-S8760]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JOHNSON:
  S. 2963: A bill to reform the United States Army Corps of Engineers; 
to the Committee on Environment and Public Works.
  Mr. JOHNSON. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2963

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

[[Page S8759]]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Corps of Engineers Reform 
     Act of 2002''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Corps.--The term ``Corps'' means the Corps of 
     Engineers.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Army.

     SEC. 3. INLAND WATERWAY REFORM.

       (a) Construction.--Section 102(a) of the Water Resources 
     Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
       (1) in the first sentence, by striking ``One-half of the 
     costs of construction'' and inserting ``Forty-five percent of 
     the costs of construction''; and
       (2) by striking the second sentence and inserting ``Fifty-
     five percent of those costs shall be paid only from amounts 
     appropriated from the Inland Waterways Trust Fund.''.
       (b) Operation and Maintenance.--Section 102 of the Water 
     Resources Development Act of 1986 (33 U.S.C. 2212) is amended 
     by striking subsections (b) and (c) and inserting the 
     following:
       ``(b) Operation and Maintenance.--
       ``(1) Federal share.--The Federal share of the cost of 
     operation and maintenance shall be 100 percent in the case 
     of--
       ``(A) a project described in paragraph (1) or (2) of 
     subsection (a); or
       ``(B) the portion of the project authorized by section 844 
     that is allocated to inland navigation.
       ``(2) Source of federal share.--
       ``(A) General fund.--In the case of a project described in 
     paragraph (1) or (2) of subsection (a) with respect to which 
     the cost of operation and maintenance is less than or equal 
     to 1 cent per ton mile, or in the case of the portion of the 
     project authorized by section 844 that is allocated to inland 
     navigation, the Federal share under paragraph (1) shall be 
     paid only from amounts appropriated from the general fund of 
     the Treasury.
       ``(B) General fund and inland waterways trust fund.--In the 
     case of a project described in paragraph (1) or (2) of 
     subsection (a) with respect to which the cost of operation 
     and maintenance is greater than 1 but less than or equal to 
     10 cents per ton mile--
       ``(i) 45 percent of the Federal share under paragraph (1) 
     shall be paid only from amounts appropriated from the general 
     fund of the Treasury; and
       ``(ii) 55 percent of the Federal share under paragraph (1) 
     shall be paid only from amounts appropriated from the Inland 
     Waterways Trust Fund.
       ``(C) Inland waterways trust fund.--In the case of a 
     project described in paragraph (1) or (2) of subsection (a) 
     with respect to which the cost of operation and maintenance 
     is greater than 10 cents per ton mile, 100 percent of the 
     Federal share under paragraph (1) shall be paid only from 
     amounts appropriated from the Inland Waterways Trust Fund.''.

     SEC. 4. INDEPENDENT REVIEW.

       (a) Definitions.--In this section:
       (1) Affected state.--The term ``affected State'', with 
     respect to a water resources project, means a State or 
     portion of a State that--
       (A) is located, at least partially, within the drainage 
     basin in which the project is carried out; and
       (B) would be economically or environmentally affected as a 
     result of the project.
       (2) Director.--The term ``Director'' means the Director of 
     Independent Review appointed under subsection (c)(1).
       (b) Projects Subject to Independent Review.--
       (1) In general.--The Secretary shall ensure that each draft 
     feasibility report, draft general reevaluation report, and 
     draft environmental impact statement for each water resources 
     project described in paragraph (2) is subject to review by an 
     independent panel of experts established under this section.
       (2) Projects subject to review.--A water resources project 
     shall be subject to review under paragraph (1) if--
       (A) the project has an estimated total cost of more than 
     $30,000,000, including mitigation costs;
       (B) the Governor of an affected State, or the Director of a 
     Federal agency with jurisdiction over resources affected by 
     the proposed project requests the establishment of a panel of 
     independent experts to review the project; and
       (C) the Secretary determines under paragraph (3) that the 
     proposed project is controversial.
       (3) Written requests.--Not later than 30 days after the 
     date on which the Secretary receives a written request of an 
     interested party, or on the initiative of the Secretary, the 
     Director shall determine whether a water resources project is 
     controversial.
       (c) Director of Independent Review.--
       (1) Appointment.--The Secretary of the Army shall appoint 
     in the Office of the Inspector General of the Department of 
     the Army a Director of Independent Review.
       (2) Qualifications.--The Secretary of the Army shall select 
     the Director from among individuals who are distinguished 
     experts in biology, hydrology, engineering, economics, or 
     another discipline relating to water resources management.
       (3) Limitation on appointments.--The Army Inspector General 
     shall not appoint an individual to serve as the Director if 
     the individual has a financial interest in or close 
     professional association with any entity with a strong 
     financial interest in a water resources project that, on the 
     date of appointment of the Director, is--
       (A) under construction;
       (B) in the preconstruction engineering and design phase; or
       (C) under feasibility or reconnaissance study by the Corps.
       (4) Terms.--
       (A) In general.--The term of a Director appointed under 
     this subsection shall be 6 years.
       (B) Term limit.--An individual may serve as the Director 
     for not more than 2 nonconsecutive terms.
       (5) Duties.--The Director shall establish a panel of 
     experts to review each water resources project that is 
     subject to review under subsection (b).
       (d) Establishment of Panels.--
       (1) In general.--After the date on which the Secretary 
     issues a draft feasibility report, draft general reevaluation 
     report, or draft environmental impact statement relating to a 
     water resources project that is subject to review under 
     subsection (b)(2), the Director shall establish a panel of 
     experts to review the project.
       (2) Membership.--A panel of experts established by the 
     Director for a water resources project shall be composed of 
     not less than 5 nor more than 9 independent experts 
     (including 1 or more biologists, engineers, and economists) 
     who represent a range of areas of expertise.
       (3) Limitation on appointments.--The Director shall not 
     appoint an individual to serve on a panel of experts for a 
     project if the individual has a financial interest in or 
     close professional association with any entity with a strong 
     financial interest in the project.
       (4) Consultation.--The Director may consult with the 
     Academy in developing lists of individuals to serve on panels 
     of experts under this section.
       (5) Compensation.--An individual serving on a panel of 
     experts under this section shall be compensated at a rate of 
     pay to be determined by the Inspector General.
       (6) Travel expenses.--A member of a panel of experts under 
     this section shall be allowed travel expenses, including per 
     diem in lieu of subsistence, at rates authorized for an 
     employee of an agency under subchapter I of chapter 57 of 
     title 5, United States Code, while away from the home or 
     regular place of business of the member in the performance of 
     the duties of the panel.
       (e) Duties of Panels.--A panel of experts established for a 
     water resources project under this section shall--
       (1) review each draft feasibility report, draft general 
     reevaluation report, and draft environmental impact statement 
     prepared for the project to identify--
       (A) technical errors;
       (B) outdated and inaccurate data; and
       (C) flawed economic and environmental methodologies and 
     models;
       (2) receive from the public written and oral comments 
     concerning the project; and
       (3) not later than the deadline established under 
     subsection (f), submit to the Secretary a report concerning 
     the economic, engineering, and environmental analysis of the 
     project, including the conclusions and recommendations of the 
     panel.
       (f) Duration of Project Reviews.--Not later than 180 days 
     after the date of establishment of a panel of experts for a 
     water resources project under this section, the panel shall 
     complete each required review of the project and all other 
     duties of the panel relating to the project.
       (g) Final Issuance of Reports and Statements.--Before 
     issuing a final feasibility report, final general 
     reevaluation report, or final environmental impact statement 
     for a water resources project, the Secretary shall--
       (1) take into consideration any recommendations contained 
     in the report described in subsection (e)(3) for the water 
     resources project; and
       (2) prepare and include in the final feasibility report, 
     final general reevaluation report, or final environmental 
     impact statement--
       (A) the report of the panel; and
       (B) for any recommendations of the panel not adopted by the 
     Secretary, a written explanation of the reasons why the 
     recommendations were not adopted.
       (h) Costs.--The cost of conducting a review of a water 
     resources project under this section--
       (1) shall not exceed $250,000;
       (2) shall be considered to be part of the total cost of the 
     project; and
       (3) shall be a Federal expense.
       (i) Applicability of Federal Advisory Committee Act.--The 
     Federal Advisory Committee Act (5 U.S.C. App.) shall apply to 
     a panel of experts established under this section.

     SEC. 5. MITIGATION.

       (a) Concurrent Mitigation.--Section 906(a) of the Water 
     Resources Development Act of 1986 (33 U.S.C. 2283(a)) is 
     amended--
       (1) by striking ``(a)(1) In the case'' and inserting the 
     following:
       ``(a) Mitigation.--
       ``(1) In general.--In the case'';
       (2) in paragraph (1), by indenting subparagraphs (A) and 
     (B) appropriately;
       (3) in paragraph (2), by striking ``(2) For the purposes'' 
     and inserting the following:
       ``(3) Commencement of construction.--For the purposes''; 
     and
       (4) by inserting after paragraph (1) the following:

[[Page S8760]]

       ``(2) Implementation of mitigation.--
       ``(A) In general.--To ensure concurrent mitigation, the 
     Secretary shall implement required mitigation under paragraph 
     (1) as expeditiously as practicable, but not later than--
       ``(i) the last day of construction of the project or 
     separable element of the project; or
       ``(ii) in a case in which completion of mitigation by the 
     date described in clause (i) is physically impracticable 
     because 1 or more sites for the remaining mitigation are or 
     will be disturbed by project construction (as determined by 
     the Secretary), not later than the end of the next fiscal 
     year immediately following the last day of construction.
       ``(B) Availability of funds.--Funds made available for 
     preliminary engineering and design, construction, or 
     operations and maintenance may be used to carry out this 
     subsection.''.
       (b) Full Mitigation.--Section 906(d) of the Water Resources 
     Development Act of 1986 (33 U.S.C. 2283(d)) is amended--
       (1) by striking paragraph (1) and inserting the following:
       ``(1) Plans and proposals.--
       ``(A) In general.--After November 17, 1986, the Secretary 
     shall not submit any proposal for the authorization of any 
     water resources project to Congress, and shall not choose a 
     project alternative in any final record of decision, 
     environmental impact statement, or environmental assessment, 
     unless the proposal contains--
       ``(i) a specific plan to fully mitigate fish and wildlife 
     losses created by the project; or
       ``(ii) a determination by the Secretary that the project 
     will have negligible adverse impact on fish and wildlife.
       ``(B) Forests.--A specific mitigation plan described in 
     subparagraph (A)(i) shall ensure, to the maximum extent 
     practicable, that impacts to bottomland hardwood forests are 
     mitigated in kind.
       ``(C) Consultation.--In carrying out this subsection, the 
     Secretary shall consult with appropriate Federal and non-
     Federal agencies.''; and
       (2) by adding at the end the following:
       ``(3) Standards for mitigation.--
       ``(A) In general.--The Secretary shall not recommend a 
     water resources project alternative or select a project 
     alternative in any final record of decision, environmental 
     impact statement, or environmental assessment completed after 
     the date of enactment of this paragraph unless the Secretary 
     determines that the mitigation plan has a high probability of 
     successfully mitigating the adverse impacts of the project on 
     aquatic and other resources, hydrologic functions, and fish 
     and wildlife.
       ``(B) Requirements.--A mitigation plan described in 
     subparagraph (A) shall--
       ``(i) provide for the acquisition and restoration of at 
     least 1 acre of superior or equivalent habitat of the same 
     type to replace each acre of habitat negatively affected by 
     the project;
       ``(ii) ensure that mitigation will result in replacement of 
     all functions of the habitat negatively affected by the 
     project, including--

       ``(I) spatial distribution; and
       ``(II) natural hydrologic and ecological characteristics;

       ``(iii) contain sufficient detail regarding the mitigation 
     sites and restoration activities selected to permit a 
     thorough evaluation of--

       ``(I) the likelihood of the ecological success of the plan; 
     and
       ``(II) resulting aquatic and other resource functions and 
     habitat values;

       ``(iv) include a detailed and specific plan to monitor 
     mitigation implementation and success; and
       ``(v) include specific ecological success criteria by which 
     the success of the mitigation will be evaluated.''.
       (c) Mitigation Tracking System.--Section 906 of the Water 
     Resources Development Act of 1986 (33 U.S.C. 2283) is amended 
     by adding at the end the following:
       ``(h) Mitigation Tracking System.--
       ``(1) In general.--Not later than 180 days after the date 
     of enactment of this subsection, the Secretary shall 
     establish a recordkeeping system to track for each water 
     resources project constructed, operated, or maintained by the 
     Secretary, and for each permit issued under section 404 of 
     the Federal Water Pollution Control Act (33 U.S.C. 1344)--
       ``(A) the quantity and type of wetland and other types of 
     habitat affected by the project or permitted activity;
       ``(B) the quantity and type of mitigation required for the 
     project or permitted activity;
       ``(C) the quantity and type of mitigation that has been 
     completed for the project or permitted activity; and
       ``(D) the status of monitoring for the mitigation carried 
     out for the project or permitted activity.
       ``(2) Required information and organization.--The 
     recordkeeping system shall--
       ``(A) include information on impacts and mitigation 
     described in subsection (a) that occur after December 31, 
     1969; and
       ``(B) be organized by watershed, project, permit 
     application, and zip code.
       ``(3) Availability of information.--The Secretary shall 
     make information contained in the recordkeeping system 
     available to the public (including through the Internet).''.

     SEC. 6. MODERN ECONOMIC AND ENVIRONMENTAL STANDARDS.

       Section 209 of the Flood Control Act of 1970 (42 U.S.C. 
     1962-2) is amended to read as follows:

     ``SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

       ``(a) In General.--It is the intent of Congress that 
     economic development and environmental protection and 
     restoration be coequal goals of water resources planning and 
     development.
       ``(b) Revision of Principles and Guidelines.--Not later 
     than 1 year after the date of enactment of the Army Corps 
     Reform Act of 2002, the Secretary of the Army, in 
     consultation with the National Academy of Sciences, shall 
     revise the principles and guidelines of the Corps of 
     Engineers for water resources projects (consisting of 
     Engineer Regulation 1105-2-100 and Engineer Pamphlet 1165-2-
     1) to reflect modern methods of measuring benefits and costs 
     of water resources projects.
       ``(c) Revision of Guidance.--The Secretary of the Army 
     shall revise the Guidance for Conducting Civil Works Planning 
     Studies (ER 1105-2-100) to comply with this section.''.
                                 ______