[Congressional Record Volume 156, Number 155 (Wednesday, December 1, 2010)]
[House]
[Pages H7823-H7826]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 EXTENDING ARMY CORPS OF ENGINEERS' AUTHORITY TO ACCEPT AND USE FUNDS 
                    FOR EXPEDITED PERMIT PROCESSING

  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Speaker, I move to suspend 
the rules and pass the bill (H.R. 6184) to amend the Water Resources 
Development Act of 2000 to extend and modify the program allowing the 
Secretary of the Army to accept and expend funds contributed by non-
Federal public entities to expedite the evaluation of permits, and for 
other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6184

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

     SECTION 1. FUNDING TO PROCESS PERMITS.

       Section 214 of the Water Resources Development Act of 2000 
     (33 U.S.C. 2201 note; 114 Stat. 2594; 117 Stat. 1836; 119 
     Stat. 2169; 120 Stat. 318; 120 Stat. 3197; 121 Stat. 1067; 
     123 Stat. 3478) is amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) In General.--The Secretary, after public notice, may 
     accept and expend funds contributed by a non-Federal public 
     entity to expedite the evaluation of a permit of that entity 
     related to a project or activity for a public purpose under 
     the jurisdiction of the Department of the Army.'';
       (2) by redesignating subsection (c) as subsection (e);
       (3) by striking subsection (b) and inserting the following:
       ``(b) Effect on Permitting.--
       ``(1) In general.--In carrying out this section, the 
     Secretary shall ensure that the use of funds accepted under 
     subsection (a) will not impact impartial decisionmaking with 
     respect to permits, either substantively or procedurally.
       ``(2) Impartial decisionmaking.--In carrying out this 
     section, the Secretary shall ensure that the evaluation of 
     permits carried out using funds accepted under this section 
     shall--
       ``(A) be reviewed by--
       ``(i) the District Commander, or the Commander's designee, 
     of the Corps District in which the project or activity is 
     located; or
       ``(ii) the Commander of the Corps Division in which the 
     District is located if the evaluation of the permit is 
     initially conducted by the District Commander; and
       ``(B) utilize the same procedures for decisions that would 
     otherwise be required for the evaluation of permits for 
     similar projects or activities not carried out using funds 
     authorized under this section.
       ``(c) Limitation on Use of Funds.--None of the funds 
     accepted under this section shall be used to carry out a 
     review of the evaluation of permits required under subsection 
     (b)(2)(A).
       ``(d) Public Availability.--The Secretary shall ensure that 
     all final permit decisions carried out using funds authorized 
     under this section are made available to the public, 
     including on the Internet.''; and
       (4) in subsection (e) (as redesignated) by striking 
     ``2010'' and inserting ``2016''.

[[Page H7824]]

     SEC. 2. COMPLIANCE WITH STATUTORY PAY-AS-YOU-GO ACT OF 2010.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the House Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Texas (Ms. Eddie Bernice Johnson) and the gentleman from Florida (Mr. 
Mario Diaz-Balart) each will control 20 minutes.
  The Chair recognizes the gentlewoman from Texas.


                             General Leave

  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Speaker, I ask unanimous 
consent that all Members may have 5 legislative days in which to revise 
and extend their remarks and to include extraneous material.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Texas?
  There was no objection.
  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Speaker, I yield myself 
such time as I may consume.
  I am pleased to rise to support H.R. 6184, a bill to extend through 
the end of 2016 the authority of the Secretary of the Army to accept 
funds from non-Federal public entities for the consideration of permits 
under the Clean Water Act and the Rivers and Harbor Act of 1899.
  This language is modeled after language included in the Water 
Resources Development Act of 2010 that was favorably approved by the 
Committee on Transportation and Infrastructure in July of this year. 
And while I am disappointed that the larger water resources development 
bill is not likely to be enacted before the end of this Congress, I 
support the efforts of the gentleman from Washington (Mr. Larsen) to 
provide a 5-year extension of the Corps' section 214 permit review 
authority. The authority expires at the end of the current calendar 
year, and this legislation will continue the program through the end of 
December 2016.
  Madam Speaker, I support the inclusion of several commonsense reforms 
to the 214 program contained in this legislation which aim at 
addressing the potential conflict of interest that arises when a 
permittee can contribute funds to a government regulatory agency for 
review of its permit application. As chairwoman of the Subcommittee on 
Water Resources and Environment, I have joined with my chairman in 
carefully monitoring the implementation of this authority. While it is 
very popular for those that have used it, there has been an ongoing 
concern that allowing a regulated entity to pay the costs of its 
regulator could affect the objectivity of that regulator.
  In May of 2007, the Government Accountability Office issued a report 
that expressed concern with the overall implementation of this section 
214 authority. This report recommended several improvements to increase 
the overall transparency and impartiality of Corps permit reviews 
conducted with outside funds.
  Many of these recommendations are codified in H.R. 6184, including 
the requirement that any permit reviewed under the 214 program undergo 
a higher order review by the Corps district commander or an appropriate 
designee.
  In addition, this legislation requires the Corps to publicly 
disclose, including on the Internet, copies of all final permit 
decisions that are reached utilizing the 214 authority. In my view, 
this additional level of public disclosure will provide an appropriate 
safeguard to ensure the integrity of the Corps' regulatory authorities, 
as well as the integrity of the 214 program. In carrying out this 
authority, the Corps should make every effort to have these records 
easily accessible to the general public and disclosed in a timely 
manner.
  Finally, this legislation clarifies the original intent of the 214 
program to be available only to public entities for projects that are 
for a public purpose.
  The May 2007 GAO report highlighted one Corps district that had 
utilized the 214 authority to process a permit for a private 
development project.

                              {time}  1640

  This is inconsistent with the intent of this program. The amendments 
made by H.R. 6184 clarify this point and ensure that only projects for 
a public purpose may be reviewed using this authority.
  I support the passage and quick enactment of this extension, and I 
reserve the balance of my time.
  Mr. MARIO DIAZ-BALART of Florida. I yield myself such time as I may 
consume.
  Madam Speaker, I rise today in qualified support of H.R. 6184, to 
authorize an extension of the Army Corps of Engineers' section 214 
program.
  As was just described, section 214 of the Water Resources Development 
Act of 2000 allows the Army Corps of Engineers to accept and, frankly, 
to expend funds provided by non-Federal public entities to hire 
additional personnel to process regulatory permits, something that we 
had heard time and time again was quickly needed.
  Now, most Members of this body support a permanent extension of 
section 214, Madam Speaker. I'm not quite sure and I've yet to 
understand what makes this program so different and so special that it 
requires temporary extensions and not just a permanent program.
  So, Madam Speaker, I say that I offer qualified support of H.R. 6184 
because, while this legislation is needed--and there is no doubt that 
it is needed--my colleague from Texas (Mr. Olson) has offered a much 
better piece of legislation. Mr. Olson's legislation, H.R. 4162, will 
authorize a permanent extension of the program, not a 5-year temporary 
patch or a temporary extension offered by this bill.
  Congress has been forced to temporarily extend this program six times 
since it was authorized in the Water Resources Development Act of 2000. 
Yet the Committee on Transportation and Infrastructure has heard from 
Members on both sides of the aisle--this is not a partisan issue--
supporting a permanent extension of the section 214 program.
  Again, I have heard no Member object to a permanent extension of the 
section 214 program. The Corps of Engineers has now the adequate 
experience in running the program, and recent Government Accountability 
Office observations concur with this assessment. Yet here we are again 
on the House floor, moving a temporary extension of an excellent, 
proven, tested program.
  Authority for this program expires on December 31 of this calendar 
year. So, obviously, if this program were allowed to expire, the Corps 
would not have the ability to process permits in a timely manner as 
they need to.
  I want to thank Representative Olson and Representative Larsen for 
their efforts on this issue.
  I urge all Members to vote in favor of H.R. 6184; but I must tell you 
that I do wish we were passing a permanent extension of the section 214 
program today, not a temporary one.
  Madam Speaker, I reserve the balance of my time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Speaker, I yield such time 
as he may consume to the gentleman from the State of Washington (Mr. 
Larsen).
  Mr. LARSEN of Washington. I want to thank the chair of the 
Transportation and Infrastructure Subcommittee for helping to bring 
this bill to the floor, and of course I thank both sides of the aisle 
on the full committee for bringing this bill to the floor.
  Madam Speaker, I rise today in support of H.R. 6184. This bill 
extends section 214 authority of the Water Resources Development Act of 
2000 through 2016. It is currently authorized through December 31 of 
this year.
  As my good friend and colleague from Florida just noted, many Members 
of Congress want to make this a permanent program. I am one of those 
Members. However, we were able to get to a point where we could move it 
from the annual reauthorizations that we were doing, which is why it 
has been reauthorized six or seven times, to a 5-year reauthorization 
at this point. I certainly look forward to working with Mr. Olson in 
the next session of Congress to see what we can do about its permanent 
authorization.
  This program allows local governments to fund additional U.S. Army 
Corps of Engineers staff time to expedite the processing of permits for 
infrastructure and ecosystem restoration

[[Page H7825]]

projects. Section 214 was enacted by Congress because the Corps of 
Engineers' permitting process had become cumbersome for both Corps 
staff and for applicants as the number of permit applications rose.
  By funding additional staff to work on specific, time-intensive 
permits, existing Corps staff is now able to process significant permit 
backlogs more quickly. Funding for additional Corps staff has resulted 
in a reduction of permit wait times, not only for the funding entity, 
but for any individual organization seeking a permit. As a result, 
local governments are now able to move forward with infrastructure and 
ecosystem restoration projects in a much more timely manner.
  To give you an idea as to what this has meant in Washington State, 
section 214 is currently being used by over 41 public agencies in 20 
Corps districts. In Washington State, the city of Seattle was the first 
public entity in the country to develop and use this facilitated 
permitting process. The city has used the section 214 program for 285 
projects, representing over $1.1 billion in capital investments. Seven 
years of using this program has resulted in an estimated cost savings 
of $10.6 million. The average review time per project has been reduced 
from over 808 days to an average now of 47 to 166 days.
  In a region where we have to balance some of the most difficult 
environmental issues in the country and where we have the second 
highest commerce and trade area of any region in the country, section 
214 is key to overcoming some permitting delays and other challenges.
  So the authority granted by 214 has worked well in practice. This 
authority does need to be reviewed so additional staff can remain on 
the job without interruption. It makes several important improvements, 
as the subcommittee chair has noted--improvements that were suggested 
by the GAO--and these changes will enhance the oversight of the 
program.
  I also want to note that this bill has the support of the U.S. 
Chamber of Commerce, the American Association of Port Authorities, the 
American Public Works Association, and the National Association of 
Flood & Stormwater Management Agencies.
  Finally, I want to note as well that the father of this particular 
section of the Water Resources Development Act is our colleague Brian 
Baird, who has retired and is finishing out his last term in Congress. 
We certainly owe a debt of gratitude to our colleague Mr. Baird for 
bringing this issue up in the first place back in '98, '99 and 2000 and 
getting it in WRDA of 2000.
  We now need to reauthorize it for 5 years and move this bill forward. 
I ask my colleagues to support it.
  Mr. OBERSTAR. Madam Speaker, I rise in support of H.R. 6184, as 
amended, a bill to amend section 214 of the Water Resources Development 
Act of 2000, to extend the authority of the Secretary of the Army to 
accept funds from non-Federal public entities for the consideration of 
permits under the Clean Water Act and the Rivers and Harbors 
Appropriation Act of 1899.
  I applaud the efforts of the gentleman from Washington (Mr. Larsen) 
for introducing this bill, and for his efforts to codify the 
recommendations of the Government Accountability Office (GAO) to avoid 
any potential conflicts-of-interest in the implementation of this 
authority.
  Since its enactment, the Committee on Transportation and 
Infrastructure has been carefully monitoring the implementation of the 
section 214 authority. While this authority is very popular for those 
public entities that have used it, the Committee has expressed concern 
that allowing a regulated entity to contribute to the cost of its 
regulator has the potential to affect the objectivity of that 
regulator. This would be contrary to the intent of the Clean Water Act 
and the Rivers and Harbors Act of 1899, and contrary to the intent of 
Congress in enacting the section 214 authority.
  In recognition of this concern, I requested that GAO review the 
Corps' implementation of the section 214 program. In May 2007, GAO 
released a report, Waters and Wetlands: Corps of Engineers Needs to 
Ensure That Permit Decisions Made Using Funds from Nonfederal Public 
Entities Are Transparent and Impartial (GAO-07-478), which demonstrated 
significant variability on the implementation of the section 214 
program among the Corps District offices that had experience with the 
program. This report recommended that the Corps implement a series of 
measures to avoid any potential conflict of interests in carrying out 
its regulatory responsibilities.
  Several of the concerns raised by GAO are addressed in the amendments 
to section 214 made by this bill.
  First, H.R. 6184 amends section 214 to clarify that the Secretary may 
only utilize this authority for the consideration and review of permits 
related to projects for a public purpose.
  The May 2007 GAO report noted that one Corps District had allowed a 
public entity to request the Corps review a private company's permit 
application under section 214. This is contrary to the intent of the 
section 214 program, which was created to allow non-Federal public 
entities to utilize the program to expedite the review of permits for 
projects for a public purpose, such as the construction of port 
facilities or public water supply projects.
  H.R. 6184 clarifies that the Corps may not utilize the section 214 
authority to consider and review permit applications for projects or 
activities that primarily benefit private individuals or companies. The 
intent of this provision is to prohibit public entities from acting as 
a liaison for expedited review of private development projects, which 
should, more appropriately, be pursued under the traditional regulatory 
review process.
  Second, this legislation adds a new subsection to codify a ``higher-
order review'' requirement under the section 214 program. This 
provision requires the Corps to have all permits considered under this 
expedited authority be reviewed by a more senior Corps official, such 
as the Corps District Commander, or his designee. This recommendation 
is consistent with the findings of the May 2007 GAO report, and 
consistent with the Corps' implementation guidance for the section 214 
program.
  In carrying out this ``higher-order review'' authority, the Corps is 
directed to include information on what higher-order review was 
undertaken in its public disclosure of permits reviewed under this 
authority. In addition, funds contributed under section 214 by non-
Federal public entities cannot be used to carry out the higher-order 
review requirements of this subsection.
  In addition, H.R. 6184 adds a new subsection that directs the 
Secretary to make all final permit decisions carried out using section 
214 funds available to the public, including on the Internet. This 
recommendation is consistent with the findings of the May 2007 GAO 
report.
  However, in a February 2010 follow-up report that I requested, GAO 
noted that the Corps had ``fallen short in two significant oversight 
areas,'' including improving the transparency of decision making to the 
public by clearly posting public notices of funding decisions on 
District Internet sites.
  This legislation codifies the requirement for public disclosure for 
each and every permit that utilizes the 214 authority. To the maximum 
extent practicable, the Corps should make these permit decisions easily 
accessible and searchable on its website.
  Finally, this legislation extends the authority for the Secretary of 
the Army to utilize the section 214 program through December 31, 2016.
  Madam Speaker, the section 214 program was established in 2000 with 
the goal of expediting the permitting review process for both those 
parties that utilize the 214 authority, and those that do not. This is 
a laudable goal, but one that has been elusive to date for a myriad of 
reasons.
  The additional safeguards called for in H.R. 6184 should help reduce 
the potential conflicts-of-interest between the regulators and the 
regulated community that are inherent in allowing contributions to the 
regulatory review process. However, this Committee should continue to 
oversee the implementation of the accountability measures called for by 
GAO and others to ensure that use of the section 214 program does not 
compromise the integrity of the regulatory process and finally achieves 
its goals of expediting the permit review process for all.
  Madam Speaker, the text of this legislation was included as part of 
H.R. 5892, the ``Water Resources Development Act of 2010'', which the 
Committee on Transportation and Infrastructure ordered reported by 
voice vote on July 29, 2010. While my hope would have been to move the 
214 extension as part of a broader water resources development bill, 
this does not seem possible in the remainder of the 111th Congress.
  I urge my colleagues to join me in supporting H.R. 6184.
  Mr. MARIO DIAZ-BALART of Florida. Madam Speaker, I yield back the 
balance of my time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Speaker, I have no further 
requests for time, I simply would ask all of the Members to support 
this measure, and I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Texas (Ms. Eddie Bernice Johnson) that the

[[Page H7826]]

House suspend the rules and pass the bill, H.R. 6184, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________