Congressional Record, Volume 148 Issue 128 (Thursday, October 3, 2002)

[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

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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

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(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).
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