[Congressional Record Volume 148, Number 128 (Thursday, October 3, 2002)]
[Senate]
[Pages S9902-S9904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE (for himself and Mr. Johnson):
  S. 3036. A bill to establish a commission to assess the performance 
of the civil works functions of the Secretary of the Army; to the 
Committee on Environment and Public Works.
  Mr. DASCHLE. Mr. President, today I am introducing, with my 
colleagues Senator Johnson, legislation to investigate and hopefully 
change the culture of disregard for environmental values that infects 
the Corps of Engineers' management of America's great rivers. My own 
experiences in South Dakota and my discussions with many of my

[[Page S9903]]

constituents and others around the Nation have led me to conclude that 
protecting the future health of our Nation's waterways demands that 
Congress consider relieving the Corps of its current river management 
responsibilities.
  For the last decade, I have watched as the Corps has steadfastly 
refused to change its management of the Missouri River to reflect the 
environmental and economic needs of the 21st century. The agency's 
refusal to change the management of the river will further jeopardize 
endangered species, drive river-dependent businesses into bankruptcy, 
and lead to further erosion of Native American burial and cultural 
sites along its banks. As a Senator from South Dakota and as a citizen 
of that State who enjoys hunting and fishing along the Missouri, I 
share the sense of betrayal that so many upstream residents feel 
watching the Corps' management slowly degrade this once thriving river.
  Last spring, just when sport fish were spawning and the State was 
facing its worst drought in decades, the Corps began to drain the 
reservoirs to provide water for navigation downstream. This prompted 
lawsuits by South Dakota, North Dakota, and Montana to force the Corps 
to bring common-sense management to the river. Since then, boat ramps 
have become unusable, while some river-based businesses have lost tens 
of thousands of dollars.
  There is no legitimate reason for further delay in reforming 
management of the Missouri River. For more than a decade, the Corps has 
spent millions of dollars revising its operating plan for water flows 
on the Missouri River, the Master Manual. An overwhelming amount of 
scientific and technical data all point to the same conclusions: the 
management of the river should more closely mimic the natural flow 
regime. Flows should be higher in the spring, and lower in the summer, 
just as they nature. Yet in June, the Corps indefinitely delayed the 
release of the new Master Manual due to pressure from the White House.
  The mismanagement of the Missouri River is illustrative of a larger 
problem. For example, a study of proposed upper-Mississippi lock 
expansion has to be retooled after the Corps whistle blower showed that 
the study was rigged to provide an economic justification for that 
billion-dollar project. A broad pattern of disregard by the Corps for 
environmental priorities throughout the nation's waterways is now 
evident. In addition, the corps has been shown time and again its 
unwillingness to work effectively with members of the public, States, 
tribes, or stakeholders to resolve ongoing challenges.
  Indeed, more than ever, the Corps appears mired in the past, 
incapable of assimilating new scienfic and economic information into 
its management scheme, and, consequently, failing the people and 
wildlife that depend on the sound stewardship of Ameria's rivers. The 
time has come to ask tough questions about the institutional barriers 
within the Corps, and the influence of special interests, that prevent 
it from effectively meeting the Nation's river management needs. The 
time has come to ask whether those responsibilities are better left to 
others. This ongoing situation presents a compelling case for a 
thorough, independent review of the agency's operations and management, 
and for serious reform. Indeed, many of my Senate colleagues have 
introduced legislation to accomplish certain reforms, and I, along with 
others have made it clear that we will fight any effort to pass 
additional authorizations unless they are accompanied by serious, 
meaningful Corps reform.

  Our Nation needs a river management program that is environmentally 
and economically sound. History does not offer much room for confidence 
that the Army Corps of Engineers can meet this standard under its 
current management structure. The management of the Missouri River, the 
Mississippi River, and other major waterways presents a compelling case 
for a thorough, independent review of the agency's operations and 
management, and for serious reform.
  I am introducing legislation today to establish an independent Corps 
of Engineers River Stewardship Investigation and Review Commission. The 
commission will take a hard and systematic look at the agency's 
stewardship of our Nation's rivers and make recommendations to Congress 
on needed reforms. It will examine a number of issues, including Corps 
compliance with environmental and Indian cultural resource protection 
laws; the quality and objectivity of the agency's scientific and 
economic analysis, the Corps' cooperation with Federal agencies, 
States, and tribes; whether congress needs to amend river planning laws 
and regulations; and, ultimately, whether the Corps' river management 
responsibilities should be transferred to a federal civilian agency.
  I urge my colleagues to review this legislation.
  It is my hope that all those who care about the mission of preserving 
our Nation's waterways will support this effort to identify and 
implement whatever reforms are necessary to fulfill that mission. I ask 
unanimous consent that the text of the legislation be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3036

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Corps of Engineers River 
     Stewardship Independent Investigation and Review Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Commission.--The term ``Commission'' means the Corps of 
     Engineers River Stewardship Independent Investigation and 
     Review Commission established under section 3(a).
       (2) Indian tribe.--The term ``Indian tribe'' has the 
     meaning given the term in section 4 of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450b).
       (3) Session day.--The term ``session day'' means a day on 
     which both Houses of Congress are in session.

     SEC. 3. ESTABLISHMENT OF COMMISSION.

       (a) In General.--As soon as practicable after the date of 
     enactment of this Act, the President shall establish a 
     commission to be known as the ``Corps of Engineers River 
     Stewardship Independent Investigation and Review 
     Commission''.
       (b) Membership.--
       (1) In general.--The Commission shall be composed of not to 
     exceed 22 members, and shall include--
       (A) individuals appointed by the President to represent--
       (i) the Department of the Army;
       (ii) the Department of the Interior;
       (iii) the Department of Justice;
       (iv) environmental interests;
       (v) hydropower interests;
       (vi) flood control interests;
       (vii) recreational interests;
       (viii) navigation interests;
       (ix) the Council on Environmental Quality; and
       (x) such other affected interests as are determined by the 
     President to be appropriate;
       (B) 6 governors from States representing different regions 
     of the United States, as determined by the President; and
       (C) 6 representatives of Indian tribes representing 
     different regions of the United States, as determined by the 
     President.
       (2) Date of appointments.--The appointment of a member of 
     the Commission shall be made not later than 180 days after 
     the date of enactment of this Act.
       (c) Term; Vacancies.--
       (1) Term.--A member shall be appointed for the life of the 
     Commission.
       (2) Vacancies.--A vacancy on the Commission--
       (A) shall not affect the powers of the Commission; and
       (B) shall be filled in the same manner as the original 
     appointment was made.
       (d) Initial Meeting.--Not later than 30 days after the date 
     on which all members of the Commission have been appointed, 
     the Commission shall hold the initial meeting of the 
     Commission.
       (e) Meetings.--The Commission shall meet at the call of the 
     Chairperson.
       (f) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number of members may 
     hold hearings.
       (g) Chairperson and Vice Chairperson.--
       (1) In general.--The President shall select a Chairperson 
     and Vice Chairperson from among the members of the 
     Commission.
       (2) No corps representative.--The Chairperson and the Vice 
     Chairperson shall not be representatives of the Department of 
     the Army (including the Corps of Engineers).

     SEC. 4. INVESTIGATION OF CORPS OF ENGINEERS.

       Not later than 2 years after the date of enactment of this 
     Act, the Commission shall complete an investigation and 
     submit to Congress a report on the management of rivers in 
     the United States by the Corps of Engineers, with emphasis 
     on--
       (1) compliance with environmental laws in the design and 
     operation of river management projects, including--
       (A) the Fish and Wildlife Coordination Act (16 U.S.C. 661 
     et seq.);
       (B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.); and

[[Page S9904]]

       (C) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       (2) compliance with the cultural resource laws that protect 
     Native American graves, traditional cultural properties, and 
     Native American sacred sites in the design and operation of 
     river management projects, including--
       (A) the National Historic Preservation Act (16 U.S.C. 470 
     et seq.);
       (B) the Archaeological Resources Protection Act of 1979 (16 
     U.S.C. 470aa et seq.);
       (C) the Native American Graves Protection Act and 
     Repatriation Act (25 U.S.C. 3001 et seq.);
       (D) Executive Order 13007 (61 Fed. Reg. 26771; relating to 
     Indian sacred sites);
       (E) identification of opportunities for developing tribal 
     cooperative management agreements for erosion control, 
     habitat restoration, cultural resource protection, and 
     enforcement;
       (F) review of policy and guidance regarding nondisclosure 
     of sensitive information on the character, nature, and 
     location of traditional cultural properties and sacred sites; 
     and
       (G) review of the effectiveness of government-to-government 
     consultation by the Corps of Engineers with Indian tribes and 
     members of Indian tribes in cases in which the river 
     management functions and activities of the Corps affect 
     Indian land and Native American natural and cultural 
     resources;
       (3) the quality and objectivity of scientific, 
     environmental, and economic analyses by the Corps of 
     Engineers, including the use of independent reviewers of 
     analyses performed by the Corps;
       (4) the extent of coordination and cooperation by the Corps 
     of Engineers with Federal and State agencies (such as the 
     United States Fish and Wildlife Service) and Indian tribes in 
     designing and implementing river management projects;
       (5) the extent to which river management studies conducted 
     by the Corps of Engineers fairly and effectively balance the 
     goals of public and private interests, such as wildlife, 
     recreation, navigation, and hydropower interests;
       (6) whether river management studies conducted by the Corps 
     of Engineers should be subject to independent review;
       (7) whether river planning laws (including regulations) 
     should be amended; and
       (8) whether the river management functions of the Corps of 
     Engineers should be transferred from the Department of the 
     Army to a Federal civilian agency.

     SEC. 5. POWERS.

       (a) Hearings.--The Commission may hold such hearings, sit 
     and act at such times and places, take such testimony, and 
     receive such evidence as the Commission considers advisable 
     to carry out this Act.
       (b) Information From Federal Agencies.--
       (1) In general.--The Commission may secure directly from a 
     Federal department or agency such information as the 
     Commission considers necessary to carry out this Act.
       (2) Provision of information.--On request of the 
     Chairperson of the Commission, the head of the department or 
     agency shall provide the information to the Commission.
       (c) Postal Services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (d) Gifts.--The Commission may accept, use, and dispose of 
     gifts or donations of services or personal property.

     SEC. 6. COMMISSION PERSONNEL MATTERS.

       (a) Compensation of Members.--
       (1) Non-federal employees.--A member of the Commission who 
     is not an officer or employee of the Federal Government shall 
     be compensated at a rate equal to the daily equivalent of the 
     annual rate of basic pay prescribed for level IV of the 
     Executive Schedule under section 5315 of title 5, United 
     States Code, for each day (including travel time) during 
     which the member is engaged in the performance of the duties 
     of the Commission.
       (2) Federal employees.--A member of the Commission who is 
     an officer or employee of the Federal Government shall serve 
     without compensation in addition to the compensation received 
     for the services of the member as an officer or employee of 
     the Federal Government.
       (b) Travel Expenses.--A member of the Commission 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 
     Commission.
       (c) Staff.--
       (1) In general.--The Chairperson of the Commission may, 
     without regard to the civil service laws (including 
     regulations), appoint and terminate an executive director and 
     such other additional personnel as are necessary to enable 
     the Commission to perform the duties of the Commission.
       (2) Confirmation of executive director.--The employment of 
     an executive director shall be subject to confirmation by the 
     Commission.
       (3) Compensation.--
       (A) In general.--Except as provided in subparagraph (B), 
     the Chairperson of the Commission may fix the compensation of 
     the executive director and other personnel without regard to 
     the provisions of chapter 51 and subchapter III of chapter 53 
     of title 5, United States Code, relating to classification of 
     positions and General Schedule pay rates.
       (B) Maximum rate of pay.--The rate of pay for the executive 
     director and other personnel may not exceed the rate payable 
     for level V of the Executive Schedule under section 5316 of 
     title 5, United States Code.
       (d) Detail of Federal Government Employees.--
       (1) In general.--An employee of the Federal Government may 
     be detailed to the Commission without reimbursement.
       (2) Civil service status.--The detail of the employee shall 
     be without interruption or loss of civil service status or 
     privilege.
       (e) Procurement of Temporary and Intermittent Services.--
     The Chairperson of the Commission may procure temporary and 
     intermittent services in accordance with section 3109(b) of 
     title 5, United States Code, at rates for individuals that do 
     not exceed the daily equivalent of the annual rate of basic 
     pay prescribed for level V of the Executive Schedule under 
     section 5316 of that title.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated to carry out this 
     Act $5,000,000 for each of fiscal years 2003 through 2005, to 
     remain available until expended.

     SEC. 8. TERMINATION OF COMMISSION.

       The Commission shall terminate on the date on which the 
     Commission submits the report to Congress under section 4(a).
                                 ______