[Congressional Record Volume 151, Number 41 (Monday, April 11, 2005)]
[Senate]
[Pages S3425-S3430]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself and Mr. McCain):
  S. 753. A bill to provide for modernization and improvement of the 
Corps of Engineers, and for other purposes; to the Committee on 
Environment and Public Works.
  Mr. FEINGOLD. Mr. President, I rise today to introduce the Corps of 
Engineers Modernization and Improvement Act of 2005. I am pleased to be 
joined by the senior Senator from Arizona, Mr. McCain, who worked with 
me in the 107th and 108th Congresses to reform the Corps.
  We cannot ignore the record-breaking deficits that the Nation faces. 
Fiscal responsibility has never been so important. This legislation 
provides Congress with a unique opportunity to underscore our 
commitment to that goal. Too often, some have suggested that fiscal 
responsibility and environmental protection are mutually exclusive. 
Through this legislation, however, we can save taxpayers billions of 
dollars and protect the environment. As evidence of this unique 
opportunity, this bill is supported by Taxpayers for Common Sense, the 
National Taxpayers Union, the National Wildlife Federation, American 
Rivers, the Corps Reform Network, and Earthjustice.
  Reforming the Army Corps of Engineers will be a difficult task for 
Congress. It involves restoring credibility and accountability to a 
Federal agency rocked by scandals and constrained by endlessly growing 
authorizations and a gloomy Federal fiscal picture, and yet an agency 
that Wisconsin, and many other States across the country, have come to 
rely upon. From the Great Lakes to the mighty Mississippi, the Corps is 
involved in providing aid to navigation, environmental remediation, 
water control and a variety of other services in my state alone.
  My office has strong working relationships with the Detroit, Rock 
Island, and St. Paul District Offices that service Wisconsin, and I 
want the fiscal and management cloud over the Corps to dissipate so 
that the Corps can continue to contribute to our environment and our 
economy.
  This legislation evolved from my experience in seeking to offer an 
amendment to the Water Resources Development Act of 2000 to create 
independent review of Army Corps of Engineers' projects. In response to 
my initiative, the bill's managers, who included the former Senator 
from New Hampshire, Senator Bob Smith, and the senior Senator from 
Montana, Mr. Baucus, adopted an amendment as part of their managers' 
package to require a National Academy of Sciences study on the issue of 
peer review of Corps projects.
  The bill I introduce today includes many provisions that were 
included the bill I authored in the 108th Congress. It codifies the 
idea of independent review of the Corps, which was investigated through 
the 2000 Water Resources bill. It also provides a mechanism to speed up 
completion of construction for good Corps projects with large public 
benefits by deauthorizing low priority and economically wasteful 
projects.
  I will note, however, that this is not the first time that the 
Congress has realized that the Corps needs to be reformed because of 
its association with pork projects. In 1836, a House Ways and Means 
Committee report discovered that at least 25 Corps projects were over 
budget. In its report, the Committee noted that Congress must ensure 
that the Corps institutes ``actual reform, in the further prosecution 
of public works.'' In 1902, Congress created a review board to 
determine whether Corps projects were justified. The review board was 
dismantled just over a decade ago, and the Corps is still linked with 
wasteful spending. Here we are, more than 100 years later, talking 
about the same issue.
  The reality is that the underlying problem is not with the Corps, the 
problem is with Congress. All too often, Members of Congress have seen 
Corps projects as a way to bring home the bacon, rather than ensuring 
that taxpayers get the most bang for their Federal buck.
  This bill puts forth bold, comprehensive reform measures. It 
modernizes the Corps project planning guidelines, which have not been 
updated since 1983. It requires the Corps to use sound science in 
estimating the costs and evaluating the needs for water resources 
projects. The bill clarifies that the national economic development and 
environmental protection are co-equal objectives of the Corps. 
Furthermore, the Corps must use current discount rates when determining 
the costs and benefits of projects. Several Corps projects are 
justified using a discount rate formula established over 30 years ago, 
not the current government-wide discount rate promulgated by the Office 
of Management and Budget. By using this outdated discount rate formula, 
the Corps often overestimates project benefits and underestimates 
project costs.
  This legislation also requires that a water resource project's 
benefits must be 1.5 times greater than the costs to the taxpayer. 
According to a 2002 study of the Corps backlog of projects, at least 60 
Corps projects, whose combined costs total $4.6 billion, do not meet 
this 1.5 to 1 benefit-cost ratio. Thus, this benefit-cost ratio will 
save the taxpayer billions of dollars. The bill also mandates federal-
local cost sharing of flood control projects and reduces the federal 
cost burden of these projects.
  While the bill assumes a flat 50 percent cost-share for flood control 
projects, my home state of Wisconsin has been on the forefront of 
responsible flood plain management and also happens to be home to the 
Association of State Flood Plain Managers. As Congress considers the 
issue of Corps reform and the Water Resources Development Act, I hope 
my colleagues will take a closer look at the issue of a sliding cost 
scale. We should explore the possibility of creating incentives for 
communities with cutting-edge flood plain management practices to 
reduce their local share for projects.
  The bill requires independent review of Corps projects. The National 
Academy of Sciences, the General Accounting Office, and even the 
Inspector General of the Army agree that independent review is an 
essential step to assuring that each Corps project is economically 
justified. Independent review will apply to projects in the following 
circumstances: 1. the project

[[Page S3426]]

has costs greater than $25 million, including mitigation costs; 2. the 
Governor of a state that is affected by the project requests a panel; 
3. the head of a federal agency charged with reviewing the project 
determines that the project is likely to have a significant adverse 
environmental or cultural impact; or 4. the Secretary of the Army 
determines that the project is controversial. Any party can request 
that the Secretary make a determination of whether the project is 
controversial.
  This bill also creates a Director of Independent Review within the 
Office of the Inspector General of the Department of the Army. The 
Director is responsible for empaneling experts to review projects. The 
Secretary is required to respond to the panel's report and explain the 
extent to which a final report addresses the panel's concerns. The 
panel report and the underlying data that the Corps uses to justify the 
project will be made available to the public.
  The bill also requires strong environmental protection measures. The 
Corps is required to mitigate the environmental impacts of its projects 
in a variety of ways, including by avoiding damaging wetlands in the 
first place and either holding other lands or constructing wetlands 
elsewhere when it cannot avoid destroying them. The Corps requires 
private developers to meet this standard when they construct projects 
as a condition of receiving a Federal permit, and I think the Federal 
Government should live up to the same standards. Too often, the Corps 
does not complete required mitigation and enhances environmental risks.
  I feel very strongly that mitigation must be completed, that the true 
costs of mitigation should be accounted for in Corps projects, and that 
the public should be able to track the progress of mitigation projects. 
The bill requires the Corps to develop a detailed mitigation plan for 
each water resources project, and conduct monitoring to demonstrate 
that the mitigation is working. In addition, the concurrent mitigation 
requirements of this bill would actually reduce the total mitigation 
costs by ensuring the purchase of mitigation lands as soon as possible.
  This bill streamlines the existing automatic deauthorization process. 
Estimates of the project backlog runs from $58 billion to $41 billion. 
The bill requires the Corps to conduct a fiscal transparency report to 
review and report on the current backlog of Corps projects. Under 
current law, a project will be deauthorized anywhere from 7.5 to 11.5 
years after authorization for construction if it receives no funding, 
and any type of funding will keep the project alive. This bill reduces 
the amount of time until automatic deauthorization based on funding to 
between 7.5 to 6.5 years. After 4 years of receiving no construction 
funding, a project goes on the Fiscal Transparency Report list. To keep 
one of those projects alive, Federal funds must be obligated for 
construction within 30 months of submission of the Fiscal Transparency 
Report. If no funds are obligated during that time, the project is 
deauthorized.
  This legislation will bring out comprehensive revision of the project 
review and authorization procedures at the Army Corps of Engineers. My 
goals for the Corps are to increase transparency and accountability, to 
ensure fiscal responsibility, and to allow greater stakeholder 
involvement in their projects. I remain committed to these goals, and 
to seeing Corps Reform enacted as part of this Congress's Water 
Resources bill.
  I feel that this bill is an important step down the road to a 
reformed Corps of Engineers. This bill establishes a framework to catch 
mistakes by Corps planners, deter any potential bad behavior by Corps 
officials to justify questionable projects, end old unjustified 
projects, and provide planners desperately needed support against the 
never-ending pressure of project boosters. Those boosters include 
congressional interests, which is why I believe that this body needs to 
champion reform--to end the perception that Corps projects are all pork 
and no substance.
  I wish it were the case that the changes we are proposing today were 
not needed, but unfortunately, there is still need for this bill. I 
want to make sure that future Corps projects no longer fail to produce 
predicted benefits, stop costing the taxpayers more than the Corps 
estimated, do not have unanticipated environmental impacts, and are 
built in an environmentally compatible way. This bill will help the 
Corps do a better job, which is what the taxpayers and the environment 
deserve.
  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. 753

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Corps of 
     Engineers Modernization and Improvement Act of 2005''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.

                 TITLE I--MODERNIZING PROJECT PLANNING

Sec. 101. Modern planning principles.
Sec. 102. Independent review.
Sec. 103. Benefit-cost analysis.
Sec. 104. Benefit-cost ratio.
Sec. 105. Cost sharing.

                          TITLE II--MITIGATION

Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.

                  TITLE III--IMPROVING ACCOUNTABILITY

Sec. 301. Fiscal Transparency Report.
Sec. 302. Project deauthorizations.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) the Corps of Engineers is the primary Federal agency 
     responsible for developing and managing the harbors, 
     waterways, shorelines, and water resources of the United 
     States;
       (2) the scarcity of Federal resources requires more 
     efficient use of Corps resources and funding, and greater 
     oversight of Corps analyses;
       (3) appropriate cost sharing ensures efficient measures of 
     project demands and enables the Corps to meet more national 
     project needs;
       (4) the significant demand for recreation, clean water, and 
     healthy wildlife habitat must be fully reflected in the 
     project planning and construction process of the Corps;
       (5) the human health, environmental, and social impacts of 
     dams, levees, shoreline stabilization structures, river 
     training structures, river dredging, and other Corps projects 
     and activities must be adequately considered and, in any case 
     in which adverse impacts cannot be avoided, fully mitigated;
       (6) the National Academy of Sciences has concluded that the 
     Principles and Guidelines for water resources projects need 
     to be modernized and updated to reflect current economic 
     practices and environmental laws and planning guidelines; and
       (7) affected interests must have access to information that 
     will allow those interests to play a larger and more 
     effective role in the oversight of Corps project development 
     and mitigation.
       (b) Purposes.--The purposes of this Act are--
       (1) to ensure that the water resources investments of the 
     United States are economically justified and enhance the 
     environment;
       (2) to provide independent review of feasibility studies, 
     general reevaluation studies, and environmental impact 
     statements of the Corps;
       (3) to ensure timely, ecologically successful, and cost-
     effective mitigation for Corps projects;
       (4) to ensure appropriate local cost sharing to assist in 
     efficient project planning focused on national needs;
       (5) to enhance the involvement of affected interests in 
     feasibility studies, general reevaluation studies, and 
     environmental impact statements of the Corps;
       (6) to modernize planning principles of the Corps to meet 
     the economic and environmental needs of riverside and coastal 
     communities and the nation;
       (7) to ensure that environmental protection and 
     restoration, and national economic development, are co-equal 
     goals, and given co-equal emphasis, during the evaluation, 
     planning, and construction of Corps projects;
       (8) to ensure that project planning, project evaluations, 
     and project recommendations of the Corps are based on sound 
     science and economics and on a full evaluation of the impacts 
     to the health of aquatic ecosystems; and
       (9) to ensure that the determination of benefits and costs 
     of Corps projects properly reflects current law and Federal 
     policies designed to protect human health and the 
     environment.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Academy.--The term ``Academy'' means the National 
     Academy of Sciences.
       (2) Corps.--The term ``Corps'' means the Corps of 
     Engineers.
       (3) Principles and guidelines.--The term ``Principles and 
     Guidelines'' means the principles and guidelines of the Corps 
     for water resources projects (consisting of Engineer 
     Regulation 1105-2-100 and Engineer Pamphlet 1165-2-1).

[[Page S3427]]

       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of the Army.

                 TITLE I--MODERNIZING PROJECT PLANNING

     SEC. 101. MODERN PLANNING PRINCIPLES.

       (a) Planning Principles.--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--
       ``(1) national economic development and environmental 
     protection and restoration are co-equal objectives of water 
     resources project planning and management; and
       ``(2) Federal agencies manage and, if clearly justified, 
     construct water resource projects--
       ``(A) to meet national economic needs; and
       ``(B) to protect and restore the environment.
       ``(b) Revision of Planning Guidelines, Regulations and 
     Circulars.--Not later than 18 months after the date of 
     enactment of the Corps of Engineers Modernization and 
     Improvement Act of 2005, the Secretary, in collaboration with 
     the National Academy of Sciences, shall develop proposed 
     revisions of, and revise, the planning guidelines, 
     regulations, and circulars of the Corps.
       ``(c) Additional Requirements.--Corps planning regulations 
     revised under subsection (b) shall--
       ``(1) incorporate new and existing analytical techniques 
     that reflect the probability of project benefits and costs;
       ``(2) apply discount rates provided by the Office of 
     Management and Budget;
       ``(3) eliminate biases and disincentives that discourage 
     the use of nonstructural approaches to water resources 
     development and management;
       ``(4) encourage, to the maximum extent practicable, the 
     restoration of ecosystems through the restoration of 
     hydrologic and geomorphic processes;
       ``(5) consider the costs and benefits of protecting or 
     degrading natural systems;
       ``(6) ensure that projects are justified by benefits that 
     accrue to the public at large;
       ``(7) ensure that benefit-cost calculations reflect a 
     credible schedule for project construction;
       ``(8) ensure that each project increment complies with 
     section 104;
       ``(9) include as a cost any increase in direct Federal 
     payments or subsidies and exclude as a benefit any increase 
     in direct Federal payments or subsidies; and
       ``(10) provide a mechanism by which, at least once every 5 
     years, the Secretary shall collaborate with the National 
     Academy of Sciences to review, and if necessary, revise all 
     planning regulations, guidelines, and circulars.
       ``(d) National Navigation and Port Plan.--
       ``(1) In general.--Not later than 18 months after the date 
     of enactment of the Corps of Engineers Modernization and 
     Improvement Act of 2005, the Corps shall develop, and update 
     not less frequently than every 4 years, an integrated, 
     national plan to manage, rehabilitate and, if justified, 
     modernize inland waterway and port infrastructure to meet 
     current national economic and environmental needs.
       ``(2) Tools.--To develop the plan, the Corps shall employ 
     economic tools that--
       ``(A) recognize the importance of alternative 
     transportation destinations and modes; and
       ``(B) employ practicable, cost-effective congestion 
     management alternatives before constructing and expanding 
     infrastructure to increase waterway and port capacity.
       ``(3) Benefits and proximity.--The Corps shall give 
     particular consideration to the benefits and proximity of 
     proposed and existing port, harbor, waterway, rail and other 
     transportation infrastructure in determining whether to 
     construct new water resources projects.
       ``(e) Notice and Comment.--The Secretary shall comply with 
     the notice and comment provisions of chapter 551 of title 5, 
     United States Code, in issuing revised planning regulations, 
     guidelines and circulars.
       ``(f) Applicability.--On completion of the revisions 
     required under this section, the Secretary shall apply the 
     revised regulations to projects for which a draft feasibility 
     study or draft reevaluation report has not yet been issued.
       ``(g) Project Reformulation.--Projects of the Corps, and 
     separable elements of projects of the Corps, that have been 
     authorized for 10 years, but for which less than 15 percent 
     of appropriations specifically identified for construction 
     have been obligated, shall not be constructed unless a 
     general reevaluation study demonstrates that the project or 
     separable element meets--
       ``(1) all project criteria and requirements applicable at 
     the time the study is initiated, including requirements under 
     this section; and
       ``(2) cost share and mitigation requirements of this 
     Act.''.
       (b) Conforming Amendments.--
       (1) Section 80 of the Water Resources Development Act of 
     1974 (42 U.S.C. 1962d-17) is repealed.
       (2) Section 7(a) of the Department of Transportation Act 
     (Public Law 89-670; 80 Stat. 941) is repealed.

     SEC. 102. 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 
     feasibility report, general reevaluation report, and 
     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 
     $25,000,000, including mitigation costs;
       (B) the Governor of an affected State requests the 
     establishment of an independent panel of experts for the 
     project;
       (C) the head of a Federal agency charged with reviewing the 
     project determines that the project is likely to have a 
     significant adverse impact on environmental, cultural, or 
     other resources under the jurisdiction of the agency; or
       (D) the Secretary determines under paragraph (3) that the 
     project is controversial.
       (3) Controversial projects.--
       (A) In general.--The Secretary shall determine that a water 
     resources project is controversial for the purpose of 
     paragraph (2)(D) if the Secretary finds that--
       (i) there is a significant dispute as to the size, nature, 
     or effects of the project;
       (ii) there is a significant dispute as to the economic or 
     environmental costs or benefits of the project; or
       (iii) there is a significant dispute as to the benefits to 
     the communities affected by the project of a project 
     alternative that--

       (I) was not the focus of the feasibility report, general 
     reevaluation report, or environmental impact statement for 
     the project; or
       (II) was not considered in the feasibility report, general 
     reevaluation report, or environmental impact statement for 
     the project.

       (B) Written requests.--Not later than 30 days after the 
     date on which the Secretary receives a written request of any 
     party, or on the initiative of the Secretary, the Secretary 
     shall determine whether a project is controversial.
       (c) Director of Independent Review.--
       (1) Appointment.--The Inspector General of the Army shall 
     appoint in the Office of the Inspector General of the Army a 
     Director of Independent Review.
       (2) Qualifications.--The Inspector General 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 Inspector General of 
     the Army 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 
     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 Secretary selects a preferred 
     alternative for a water resources project subject to review 
     under subsection (b) in a formal draft feasibility report, 
     draft general reevaluation report, or draft environmental 
     impact statement, the Director shall establish a panel of 
     experts to review the project.
       (2) Membership.--A panel of experts established by the 
     Director for a project shall be composed of not less than 5 
     nor more than 9 independent experts (including 1 or more 
     biologists, hydrologists, 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 
     financial interest in the project.
       (4) Consultation.--The Director shall consult with the 
     Academy in developing lists of individuals to serve on panels 
     of experts under this section.
       (5) Notification.--
       (A) In general.--To ensure that the Director is able to 
     effectively carry out the duties of the Director under this 
     section, the Secretary shall notify the Director in writing 
     not later than 90 days before the release of a draft 
     feasibility report, draft general reevaluation report, or 
     draft environmental

[[Page S3428]]

     impact statement, for every water resources project.
       (B) Contents.--The notification shall include--
       (i) the estimated cost of the project; and
       (ii) a preliminary assessment of whether a panel of experts 
     may be required.
       (6) 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 of the Army.
       (7) 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.--
       (1) In general.--A panel of experts established for a water 
     resources project under this section shall--
       (A) review each draft feasibility report, draft general 
     reevaluation report, and draft environmental impact statement 
     prepared for the project;
       (B) assess the adequacy of the economic, scientific, and 
     environmental models used by the Secretary in reviewing the 
     project to ensure that--
       (i) the best available economic and scientific methods of 
     analysis have been used;
       (ii) the best available economic, scientific, and 
     environmental data have been used; and
       (iii) any regional effects on navigation systems have been 
     examined;
       (C) receive from the public written and oral comments 
     concerning the project;
       (D) not later than the deadline established under 
     subsection (f), submit to the Secretary a report concerning 
     the economic, engineering, and environmental analyses of the 
     project, including the conclusions of the panel, with 
     particular emphasis on areas of public controversy, with 
     respect to the feasibility report, general reevaluation 
     report, or environmental impact statement; and
       (E) not later than 30 days after the date of issuance of a 
     final feasibility report, final general reevaluation report, 
     or final environmental impact statement, submit to the 
     Secretary a brief report stating the views of the panel on 
     the extent to which the final analysis adequately addresses 
     issues or concerns raised by each earlier evaluation by the 
     panel.
       (2) Extensions.--
       (A) In general.--The panel may request from the Director a 
     30-day extension of the deadline established under paragraph 
     (1)(E).
       (B) Record of decision.--The Secretary shall not issue a 
     record of decision until after, at the earliest--
       (i) the final day of the 30-day period described in 
     paragraph (1)(E); or
       (ii) if the Director grants an extension under subparagraph 
     (A), the final day of the 60-day period beginning on the date 
     of issuance of a final feasibility report described in 
     paragraph (1)(E) and ending on the final day of the extension 
     granted under subparagraph (A).
       (f) Duration of Project Reviews.--
       (1) Deadline.--Except as provided in paragraph (2), 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--
       (A) each required review of the project; and
       (B) all other duties of the panel relating to the project 
     (other than the duties described in subsection (e)(1)(E)).
       (2) Extension of deadline for report on project reviews.--
     Not later than 240 days after the date of issuance of a draft 
     feasibility report, draft general reevaluation report, or 
     draft environmental impact statement for a project, if a 
     panel of experts submits to the Director before the end of 
     the 180-day period described in paragraph (1), and the 
     Director approves, a request for a 60-day extension of the 
     deadline established under that paragraph, the panel of 
     experts shall submit to the Secretary a report required under 
     subsection (e)(1)(D).
       (g) Recommendations of Panel.--
       (1) Consideration by secretary.--
       (A) In general.--If the Secretary receives a report on a 
     water resources project from a panel of experts under this 
     section by the applicable deadline under subsection (e)(1)(E) 
     or (f), the Secretary shall, at least 14 days before entering 
     a final record of decision for the water resources project--
       (i) take into consideration any recommendations contained 
     in the report; and
       (ii) prepare a written explanation for any recommendations 
     not adopted.
       (B) Inconsistent recommendations and findings.--
     Recommendations and findings of the Secretary that are 
     inconsistent with the recommendations and findings of a panel 
     of experts under this section shall not be entitled to 
     deference in a judicial proceeding.
       (2) Public review; submission to congress.--After receiving 
     a report on a water resources project from a panel of experts 
     under this section (including a report under subsection 
     (e)(1)(E)), the Secretary shall--
       (A) immediately make a copy of the report (and, in a case 
     in which any written explanation of the Secretary on 
     recommendations contained in the report is completed, shall 
     immediately make a copy of the response) available for public 
     review; and
       (B) include a copy of the report (and any written 
     explanation of the Secretary) in any report submitted to 
     Congress concerning the project.
       (h) Public Access to Information.--
       (1) In general.--Except as provided in paragraph (3), the 
     Secretary shall ensure that information relating to the 
     analysis of any water resources project by the Corps, 
     including all supporting data, analytical documents, and 
     information that the Corps has considered in the analysis, is 
     made available--
       (A) to any individual upon request;
       (B) to the public on the Internet; and
       (C) to an independent review panel, if such a panel is 
     established for the project.
       (2) Types of information.--Information concerning a project 
     that is available under paragraph (1) shall include--
       (A) any information that has been made available to the 
     non-Federal interests with respect to the project; and
       (B) all data and information used by the Corps in the 
     justification and analysis of the project.
       (3) Exception for trade secrets.--
       (A) In general.--The Secretary shall not make information 
     available under paragraph (1) that the Secretary determines 
     to be a trade secret of any person that provided the 
     information to the Corps.
       (B) Criteria for trade secrets.--The Secretary shall 
     consider information to be a trade secret only if--
       (i) the person that provided the information to the Corps--

       (I) has not disclosed the information to any person other 
     than--

       (aa) an officer or employee of the United States or a State 
     or local government;
       (bb) an employee of the person that provided the 
     information to the Corps; or
       (cc) a person that is bound by a confidentiality agreement; 
     and

       (II) has taken reasonable measures to protect the 
     confidentiality of the information and intends to continue to 
     take the measures;

       (ii) the information is not required to be disclosed, or 
     otherwise made available, to the public under any other 
     Federal or State law; and
       (iii) disclosure of the information is likely to cause 
     substantial harm to the competitive position of the person 
     that provided the information to the Corps.
       (i) Costs.--
       (1) Limitation on cost of review.--The cost of conducting a 
     review of a water resources project under this section shall 
     not exceed--
       (A) $250,000 for a project, if the total cost of the 
     project in current year dollars is less than $50,000,000; and
       (B) 0.5 percent of the total cost of the project in current 
     year dollars, if the total cost is $50,000,000 or more.
       (2) Treatment.--The cost of conducting a review of a 
     project under this section shall be considered to be part of 
     the total cost of the project.
       (3) Cost sharing.--A review of a project under this section 
     shall be subject to section 105(a) of the Water Resources 
     Development Act of 1986 (33 U.S.C. 2215(a)).
       (4) Waiver of limitation.--The Secretary may waive a 
     limitation under paragraph (1) if the Secretary determines 
     that the waiver is appropriate.
       (j) 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. 103. BENEFIT-COST ANALYSIS.

       Section 308(a) of the Water Resources Development Act of 
     1990 (33 U.S.C. 2318(a)) is amended--
       (1) in paragraph (1)(B), by striking ``and'' at the end;
       (2) in paragraph (2), by striking the period at the end and 
     inserting a semi-colon; and
       (3) by adding at the end the following:
       ``(3) any projected benefit attributable to any change in, 
     or intensification of, land use arising from the draining, 
     reduction, or elimination of wetlands; and
       ``(4) any projected benefit attributable to an increase in 
     direct Federal payments or subsidies.''.

     SEC. 104. BENEFIT-COST RATIO.

       (a) Recommendation of Projects.--Beginning in fiscal year 
     2006, in the case of a water resources project that is 
     subject to a benefit-cost analysis, the Secretary may 
     recommend the project for authorization by Congress, and may 
     choose the project as a recommended alternative in any record 
     of decision or environmental impact statement, only if the 
     project, in addition to meeting any other criteria required 
     by law, has projected national benefits that are at least 1.5 
     times as great as the estimated total costs of the project, 
     based on current discount rates provided by the Office of 
     Management and Budget.
       (b) Deauthorization of Projects.--
       (1) Report.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary shall submit to Congress 
     a report identifying each water resources project (or 
     separable element of such a project) that is subject to a 
     benefit-cost analysis and authorized for construction, the 
     projected remaining benefits of which are less than 1.5 times 
     as great as the remaining projected costs.
       (2) Deauthorizations.--
       (A) In general.--Effective beginning on the date that is 3 
     years after the date of submission of the report under 
     paragraph (1), any project identified in the report shall be 
     deauthorized unless the project was reauthorized by Congress 
     during the preceding 3 years.

[[Page S3429]]

       (B) Construction in progress.--If construction (other than 
     preconstruction engineering or design) began on or before the 
     date of enactment of this Act for a project that is 
     deauthorized under subparagraph (A), the Secretary may take 
     such actions with respect to the project as the Secretary 
     determines to be necessary to protect public health and 
     safety and the environment.
       (c) Public Notification.--The Secretary shall--
       (1) publish in the Federal Register the report under 
     subsection (b)(1); and
       (2) make the report available to the public on the 
     Internet.
       (d) Final Deauthorization List.--The Secretary shall 
     publish in the Federal Register a list of all projects 
     deauthorized under this section.

     SEC. 105. COST SHARING.

       (a) Operations and Maintenance of Inland Waterways.--
     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) From the 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 2 cents 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) From the 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 2 but less than or 
     equal to 10 cents per ton mile--
       ``(i) 75 percent of the Federal share under paragraph (1) 
     shall be paid only from amounts appropriated from the general 
     fund of the Treasury; and
       ``(ii) 25 percent of the Federal share under paragraph (1) 
     shall be paid only from amounts appropriated from the Inland 
     Waterways Trust Fund.
       ``(C) From the 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 but less than 30 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.
       ``(D) Non-federal responsibility.--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 30 cents per ton-mile, the cost of operations 
     and maintenance shall be a non-Federal responsibility.''.
       (b) Flood Damage Reduction.--Section 103 of the Water 
     Resources Development Act of 1986 (33 U.S.C. 2213) is 
     amended--
       (1) in subsections (a)(2) and (b), by striking ``35'' each 
     place it appears and inserting ``50'';
       (2) in the paragraph heading of subsection (a)(2), by 
     striking ``35 percent minimum''' and inserting ``Minimum'''; 
     and
       (3) in the paragraph heading of subsection (b), by striking 
     ``35'' and inserting ``50''.

                          TITLE II--MITIGATION

     SEC. 201. 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) Projects.--
       ``(A) In general.--After November 17, 1986, the Secretary 
     shall not submit to Congress any proposal for the 
     authorization of any water resources project, and shall not 
     choose a project alternative in any final record of decision, 
     environmental impact statement, or environmental assessment, 
     unless the report contains--
       ``(i) a specific plan to fully mitigate losses of aquatic 
     and terrestrial resources and fish and wildlife created by 
     the project; or
       ``(ii) a determination by the Secretary that the project 
     will have negligible adverse impact on aquatic and 
     terrestrial resources and fish and wildlife.
       ``(B) Specific requirements.--Specific mitigation plans 
     shall ensure that impacts to bottomland hardwood forests and 
     other habitat types are mitigated in kind.
       ``(C) Consultation.--In carrying out this paragraph, 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.--To fully mitigate losses to fish and 
     wildlife resulting from a water resources project, the 
     Secretary shall, at a minimum--
       ``(i) acquire and restore 1 acre of superior or equivalent 
     habitat of the same type to replace each acre of habitat 
     adversely affected by the project; and
       ``(ii) replace the hydrologic functions and 
     characteristics, the ecological functions and 
     characteristics, and the spatial distribution of the habitat 
     adversely affected by the project.
       ``(B) Detailed mitigation plan.--The specific mitigation 
     plan for a water resources project under paragraph (1) shall 
     include, at a minimum--
       ``(i) a detailed and specific plan to monitor mitigation 
     implementation and ecological success, including the 
     designation of the entities that will be responsible for 
     monitoring;
       ``(ii) specific ecological success criteria by which the 
     mitigation will be evaluated and determined to be successful, 
     prepared in consultation with the United States Fish and 
     Wildlife Service;
       ``(iii) a detailed description of the land and interests in 
     land to be acquired for mitigation and the basis for a 
     determination that land and interests are available for 
     acquisition;
       ``(iv) sufficient detail regarding the chosen mitigation 
     sites and type and amount of restoration activities to permit 
     a thorough evaluation of the plan's likelihood of ecological 
     success and resulting aquatic and terrestrial resource 
     functions and habitat values; and
       ``(v) a contingency plan for taking corrective actions if 
     monitoring demonstrates that mitigation efforts are not 
     achieving ecological success as described in the ecological 
     success criteria.
       ``(C) Applicable law.--A time period for mitigation 
     monitoring or for the implementation and monitoring of 
     contingency plan actions shall not be subject to the 
     deadlines described in section 202.
       ``(4) Determination of mitigation success.--
       ``(A) In general.--Mitigation shall be considered to be 
     successful at the time at which monitoring demonstrates that 
     the mitigation has met the ecological success criteria 
     established in the mitigation plan.
       ``(B) Requirements for success.--To ensure the success of 
     any attempted mitigation, the Secretary shall--
       ``(i) consult yearly with the United States Fish and 
     Wildlife Service on each water resources project requiring 
     mitigation to determine whether mitigation monitoring for 
     that project demonstrates that the project is achieving, or 
     has achieved, ecological success;
       ``(ii) ensure that implementation of the mitigation 
     contingency plan for taking corrective action begins not 
     later than 30 days after a finding by the Secretary or the 
     United States Fish and Wildlife Service that the original 
     mitigation efforts likely will not result in, or have not 
     resulted in, ecological success;
       ``(iii) complete implementation of the contingency plan as 
     expeditiously as practicable; and
       ``(iv) ensure that monitoring of mitigation efforts, 
     including those implemented through a mitigation contingency 
     plan, continues until the monitoring demonstrates that the 
     mitigation has met the ecological success criteria.
       ``(5) Recommendation of projects.--The Secretary shall not 
     recommend a water resources project alternative or choose 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 for 
     the alternative will successfully mitigate the adverse 
     impacts of the project on aquatic and terrestrial resources, 
     hydrologic functions, and fish and wildlife.
       ``(6) Implementation of mitigation before construction of 
     new projects.--The Secretary shall implement all mitigation 
     required by a record of decision for water resources projects 
     in a particular district of the Corps before beginning 
     physical construction of any new water resources project (or 
     separable element of such a project) in that district.''.

     SEC. 202. 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 striking ``interests--'' and all 
     that follows through ``losses),'' and inserting the 
     following: ``interests shall be undertaken or acquired--
       ``(A) before any construction of the project (other than 
     such acquisition) commences; or
       ``(B) concurrently with the acquisition of land and 
     interests in land for project purposes (other than mitigation 
     of fish and wildlife losses);'';
       (3) in paragraph (2), by striking ``(2) For the purposes'' 
     and inserting the following:
       ``(2) Commencement of construction.--For the purpose''; and
       (4) by adding at the end the following:
       ``(3) Implementation.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     to ensure concurrent mitigation, the Secretary shall 
     implement--
       ``(i) 50 percent of required mitigation before beginning 
     construction of a project; and
       ``(ii) the remainder of required mitigation as 
     expeditiously as practicable, but not later than the last day 
     of construction of the project or separable element of the 
     project.
       ``(B) Exception for physical impracticability.--In a case 
     in which the Secretary determines that it is physically 
     impracticable to complete mitigation by the last day

[[Page S3430]]

     of construction of the project or separable element of the 
     project, the Secretary shall reserve or reprogram sufficient 
     funds to ensure that mitigation implementation is completed 
     as expeditiously as practicable, but in no case later than 
     the end of the next fiscal year immediately following the 
     last day of that construction.
       ``(4) Use of funds.--Funds made available for preliminary 
     engineering and design, construction, or operations and 
     maintenance shall be available for use in carrying out this 
     section.''.

     SEC. 203. MITIGATION TRACKING SYSTEM.

       (a) In General.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary shall establish a 
     recordkeeping system to track 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)--
       (1) the quantity and type of wetland and other habitat 
     types affected by the project, project operation, or 
     permitted activity;
       (2) the quantity and type of mitigation required for the 
     project, project operation or permitted activity;
       (3) the quantity and type of mitigation that has been 
     completed for the project, project operation or permitted 
     activity; and
       (4) the status of monitoring for the mitigation carried out 
     for the project, project operation or permitted activity.
       (b) Required Information and Organization.--The 
     recordkeeping system shall--
       (1) include information on impacts and mitigation described 
     in subsection (a) that occur after December 31, 1969; and
       (2) be organized by watershed, project, permit application, 
     and zip code.
       (c) Availability of Information.--The Secretary shall make 
     information contained in the recordkeeping system available 
     to the public on the Internet.

                  TITLE III--IMPROVING ACCOUNTABILITY

     SEC. 301. FISCAL TRANSPARENCY REPORT.

       (a) Definitions.--In this section:
       (1) Construction.--The term ``construction'' includes any 
     physical work carried out under a construction contract 
     relating to a water resources project.
       (2) Physical work.--The term ``physical work'' does not 
     include any activity relating to--
       (A) project planning;
       (B) project engineering and design;
       (C) relocation; or
       (D) the acquisition of land, an easement, or a right-of-
     way.
       (b) Report.--
       (1) In general.--On the third Tuesday of January of each 
     year beginning after the date of enactment of this Act, the 
     Chief of Engineers shall submit to the Committee of 
     Environment and Public Works of the Senate and the Committee 
     on Transportation and Infrastructure of the House of 
     Representatives a fiscal transparency report describing--
       (A) the expenditures of the Corps during the preceding 
     fiscal year;
       (B) the estimated expenditures of the Corps for the fiscal 
     year during which the report is submitted; and
       (C) a list of projects that the Chief of Engineers expects 
     to complete during the fiscal year during which the report is 
     submitted.
       (2) Contents.--In addition to the information described in 
     paragraph (1), the report shall contain a detailed account 
     of--
       (A) for each general construction project that is under 
     construction on the date of submission of the report, or for 
     which there is a signed cost-sharing agreement, complete 
     information regarding planning, engineering, and design of 
     the project, including--
       (i) the primary purpose of the project;
       (ii) each allocation made to the project on or before the 
     date of submission of the report;
       (iii) a description of any construction carried out 
     relating to the project;
       (iv) the projected date of completion of construction of 
     the project;
       (v) the estimated annual Federal cost of completing 
     construction of the project on or before the projected date 
     under clause (iv); and
       (vi) the date of completion of the most recent feasibility 
     study, reevaluation report, and environmental review of the 
     project;
       (B) for each general investigation and reconnaissance and 
     feasibility study, information including--
       (i) the number of studies initiated on or before the date 
     of submission of the report;
       (ii) the number of studies in progress on the date of 
     submission of the report;
       (iii) the number of studies expected to be completed during 
     the fiscal year; and
       (iv) a list of any completed study of a project that is not 
     authorized for construction on the date of submission of the 
     report, and the date of completion of the study;
       (C) for each inland and intracoastal waterway operated and 
     maintained under section 206 of the Inland Waterways Revenue 
     Act of 1978 (33 U.S.C. 1804), information including--
       (i) the estimated annual cost of operating and maintaining 
     the reach of the waterway at the depth of the waterway;
       (ii) the actual cost of operating and maintaining the reach 
     of the waterway at the depth of the waterway during the 
     previous fiscal year; and
       (iii) the number of barges (including the number of loaded 
     barges) and the total tonnage shipped over each waterway 
     during the preceding fiscal year; and
       (D) for each water resources project (or separable element 
     of such a project) that is authorized for construction, for 
     which Federal funds have not been obligated for construction 
     during any of the 4 preceding fiscal years, information 
     including--
       (i) the primary purpose of the project;
       (ii) the date of authorization of the project;
       (iii) each allocation made to the project on or before the 
     date of submission of the report, including the amount and 
     type of the allocation;
       (iv) the percentage of construction of the project that has 
     been completed on the date of submission of the report;
       (v) the estimated cost of completing the project, and the 
     percentage of estimated total costs that has been obligated 
     to the project on or before the date of submission of the 
     report;
       (vi)(I) a benefit-cost analysis of the project, expressed 
     as a ratio using current discount rates;
       (II) the estimated annual benefits and annual costs of the 
     project; and
       (III) the date on which any economic data used to justify 
     the project was collected;
       (vii) the date of completion of the most recent feasibility 
     study, reevaluation report, and environmental review of the 
     project; and
       (viii) a brief explanation of any reason why Federal funds 
     have not been obligated for construction of the project.
       (c) Congressional and Public Notifications.--On submission 
     of a report under this section, the Secretary shall notify 
     each Senator in the State of whom, and each Member of the 
     House of Representatives in the district of whom, a project 
     identified in the report is located.
       (d) Publication.--For any report under this section, the 
     Secretary shall--
       (1) publish the report in the Federal Register; and
       (2) make the report available to--
       (A) any person, on receipt of a request of the person; and
       (B) the public on the Internet.

     SEC. 302. PROJECT DEAUTHORIZATIONS.

       Section 1001 of the Water Resources Development Act of 1986 
     (33 U.S.C. 579a) is amended to read as follows:
       ``(a) Definitions.--In this section:
       ``(1) Construction.--The term `construction' includes any 
     physical work carried out under a construction contract 
     relating to a water resources project.
       ``(2) Physical work.--The term `physical work' does not 
     include any activity relating to--
       ``(A) project planning;
       ``(B) project engineering and design;
       ``(C) relocation; or
       ``(D) the acquisition of land, an easement, or a right-of-
     way.
       ``(b) Deauthorizations.--
       ``(1) In general.--Effective beginning on the date that is 
     30 months after the date of submission of a fiscal 
     transparency report under section 301 of the Corps of 
     Engineers Modernization and Improvement Act of 2005, each 
     project identified under section 301(b)(2)(D) of that Act 
     shall be deauthorized unless Federal funds were obligated for 
     construction of the project during the preceding 30 months.
       ``(2) Effect of paragraph.--Paragraph (1) does not apply--
       ``(A) in the case of a beach nourishment project, beginning 
     on the date on which initial construction of the project is 
     completed; or
       ``(B) in the case of any other project, beginning on the 
     date on which construction of the project is completed.
       ``(c) Final Deauthorization List.--The Secretary shall 
     annually publish in the Federal Register a list of all 
     projects deauthorized under this section.''.
                                 ______