[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.
____________________