[Congressional Record Volume 159, Number 37 (Thursday, March 14, 2013)]
[Senate]
[Pages S1856-S1859]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN:
  S. 565. A bill to provide for the safe and reliable navigation of the 
Mississippi River, and for other purposes; to the Committee on 
Environment and Public Works.
  Mr. DURBIN. Mr. President, I rise today to discuss two bills I am 
introducing--one to maintain navigation on the Mississippi River during 
extreme weather and the second, to improve the Nation's water 
infrastructure, including locks and dams on the Mississippi and 
Illinois Rivers.
  For many of us, last year's low water event on the Mississippi River 
is still fresh in our minds. We came close to economic catastrophe when 
ongoing drought conditions in the Midwest led to the lowest water 
levels seen on the Mississippi River since World War II and threatened 
to disrupt the movement of billions of dollars in goods on the river. 
At the height of the crisis at the end of 2012, Waterways Council and 
the American Waterways Operators estimated that up to $7 billion in 
goods could be effected by a river closure from December to January.
  The worst conditions for navigation were near Thebes, IL, in a 
stretch of river referred to as the Middle Mississippi. It begins at 
the confluence of the Missouri River and ends at Cairo, IL where the 
Ohio and Mississippi Rivers merge. The natural bends and twists of the 
river here combined with naturally occurring rock formations on the 
river bed make this stretch particularly difficult to navigate during 
periods of extreme low water. To pass, barges were forced to carry 
lighter loads than normal, reducing efficiency and costing them money.
  Only through better than expected rainfall, Congress pushing the Army 
Corps to expedite removal of rock pinnacles at Thebes, and some 
creative reservoir management was the river able to stay open and the 
worst case scenarios able to be avoided this time. For the Corps' part, 
it was an amazing fete and they should be commended for their 
successful efforts.
  But we know from Hurricane Katrina to Sandy, from severe flooding on 
the Mississippi River in 2011 to the historic low water in 2012, 
extreme weather seems to be the new normal--becoming more frequent and 
more severe.
  The Mississippi River Navigation Sustainment Act seeks to make 
government and commercial navigation users better prepared for the next 
extreme weather event that threatens navigation. I am pleased that 
Representatives Bill Enyart and Rodney Davis are introducing companion 
legislation in the House.
  The bill authorizes the Corps to conduct a study to better coordinate 
management of the entire Mississippi River Basin during periods of 
extreme weather. This will ensure that the U.S. Army Corps of Engineers 
takes into account the effect the entire basin has on navigation and 
flood control efforts on the Mississippi River.
  The Mississippi River Basin is the third largest watershed in the 
world and covers more than 40 percent of the contiguous United States. 
It doesn't take a PhD in hydrology to know that what happens on other 
systems in the

[[Page S1857]]

watershed affects the Mississippi River and activities on it.
  This bill will also improve river forecasting capabilities through 
the increased use of tools like sedimentation ranges and the deployment 
of additional automated river gages on he Mississippi and its 
tributaries. During the latest low water event, many of the manual 
gages--sometimes literally lines painted on bridges--became unusable 
because the water was so low. lmproving the ability to accurately 
forecast and provide information on current river conditions will help 
barge operators and shippers who have to make long term business 
decisions based on this information. Operators leaving Minnesota need 
to know that when they get to Thebes, river conditions will allow them 
to pass.
  The bill will also provide flexibility to the Army Corps to conduct 
certain operations outside of the authorized channel if such action is 
deemed necessary to maintaining commercial navigation. This authority 
would be used to maintain access to loading docks and other critical 
infrastructure during periods of low water. In addition, it will allow 
the Corps to better assist the Coast Guard in managing traffic on the 
river during low water events by providing areas for barge operators to 
moor their vessels farther away from the navigation channel, leading to 
increased safety and greater ability to keep the navigation channel 
clear.
  Finally, recognizing that the Mississippi River is a vital natural 
resource, this bill will create an environmental pilot program in the 
Middle Mississippi River. This will give the Army Corps the authority 
to restore and protect fish and wildlife habitat in this portion of the 
river while conducting activities to maintain navigation.
  Also key to maintaining navigation and commerce on the Mississippi 
and other inland waterways, is continued investment in water 
infrastructure.
  For example, the locks and dams on the upper Mississippi River and 
Illinois Rivers, built in the 30's and 40's, are aging, making the risk 
of failure an ever increasing prospect. In addition, the lock chambers 
are too small to accommodate today's standard barge configuration 
helping lead to an average delay of more than 4 hours for passing 
vessels.
  That is why I worked with my colleagues in Missouri and Iowa in the 
2007 Water Resources and Development Act to authorize the Navigation 
and Ecosystem Sustainability Program which would expand and modernize 
these locks while restoring the ecosystem on the Upper Mississippi.
  Modernizing these locks means safer, more reliable, and drastically 
more efficient navigation. Operators and shippers alike would benefit--
barge companies could maximize efficiency while Illinois farmers and 
others could reliably get their products to market.
  Unfortunately, under current project delivery processes and Federal 
fiscal realities, the first benefits of this modernization are not 
expected to be felt by the navigation industry before 2047. And that 
was before sequestration. Between sequestration and the continuing 
resolution being debates on the Senate floor now, the Corps' 
construction budget for fiscal year 13 would be cut by approximately 
$80 million. Even before all of that, the Corps estimated a project 
backlog of approximately $60 billion.
  It is clear we need a new model--one that speeds up the process of 
planning and constructing these projects in the face of an often slow 
bureaucratic process and brings to the table greater private investment 
while the Federal Government is cutting back.
  That is what Senator Kirk and I are proposing with the Water 
Infrastructure Now Public-Private Partnership Act. I am proud that 
Representatives Bustos and Davis have introduced companion legislation 
in the House.
  The bill will create a pilot program to allow the Army Corps of 
Engineers to enter into agreements with non-federal partners using new 
and creative models to finance and construct up to 15 previously-
authorized flood damage reduction, hurricane and storm damage 
reduction, and navigation projects.
  I am hopeful that this program will provide a way to maintain our 
investments in important water infrastructure projects even as we face 
severe fiscal restraints by creating a greater opportunity for private 
interests to come to the table.
  At the same time, the bill would take care to protect previous 
taxpayer investments by prohibiting any privatization of Federal assets 
and requiring a study to show that any proposed agreement would 
actually provide a public benefit.
  For many of these long-stalled, large scale infrastructure projects, 
like the Locks and Dams on the Mississippi and Illinois Rivers, this 
common sense bill could provide a way forward.
  Together, the Mississippi River Navigation Sustainment Act and the 
Water Infrastructure Now Public-Private Partnership Act, represent 
positive steps forward in the effort to maintain the economic viability 
of the Mississippi River and protect our inland waterway system against 
threats from extreme weather and aging infrastructure. I hope my 
colleagues will join me in cosponsoring these common sense measures.
  Mr. President, I ask unanimous consent that the text of the bills be 
printed in the Record.
  There being no objection, the text of the bills was ordered to be 
printed in the Record, as follows:

                                 S. 565

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Mississippi River Navigation 
     Sustainment Act''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Mississippi River is the largest, most famous river 
     in the United States and a vital natural resource;
       (2) the Mississippi River Basin is the third largest 
     watershed in the world, covering more than 1,000,000 square 
     miles and approximately 40 percent of the continental United 
     States;
       (3) the rivers, tributaries, and reservoirs that make up 
     the Mississippi River Basin operate naturally as a system and 
     any attempt to operate projects within the Mississippi River 
     Basin by mankind should take this fact into consideration;
       (4) the Mississippi River is the backbone of the inland 
     waterway system of the United States and a crucial artery for 
     the movement of goods;
       (5) each year millions of tons of commodities, including 
     grain, coal, petroleum, and chemicals, representing billions 
     of dollars are transported on the Mississippi River by barge;
       (6) the Mississippi River is home to some of the busiest 
     commercial ports in the United States, including the Port of 
     New Orleans and the Port of St. Louis;
       (7) safe and reliable navigation of the Mississippi River 
     is vital to the national economy;
       (8) extreme weather events pose challenges to navigation 
     and life along the Mississippi River and are likely to become 
     more severe and more frequent in the coming years, as 
     evidenced by the devastating floods along the Mississippi 
     River in 2011 and the near historic low water levels seen on 
     the same stretch of the Mississippi River in the winter of 
     2012-2013;
       (9) the American Waterways Operators and the Waterways 
     Council, Incorporated have estimated that a disruption of 
     navigation on the Mississippi River due to low water levels 
     between December 2012 and January 2013 would have negatively 
     impacted 20,000 jobs and $7,000,000,000 in cargo;
       (10) the Regulating Works Program of the St. Louis District 
     of the Corps of Engineers is critical to maintaining 
     navigation on the middle Mississippi River during extreme 
     weather events and should receive continued Federal financial 
     assistance and support; and
       (11) the Federal Government, commercial users, and others 
     have a shared responsibility to take steps to maintain the 
     critical flow of goods on the Mississippi River during 
     extreme weather events.

     SEC. 3. DEFINITIONS.

       (a) Extreme Weather.--The term ``extreme weather'' means--
       (1) severe flooding and drought conditions that lead to 
     above or below average water levels; or
       (2) other severe weather events that threaten personal 
     safety, property, and navigation on the inland waterways of 
     the United States.
       (b) Greater Mississippi River Basin.--The term ``greater 
     Mississippi River Basin'' means the area covered by 
     hydrologic units 5, 6, 7, 8, 10, and 11, as identified by the 
     United States Geological Survey as of the date of enactment 
     of this Act.
       (c) Lower Mississippi River.--The term ``lower Mississippi 
     River'' means the portion of the Mississippi River that 
     begins at the confluence of the Ohio River and flows to the 
     Gulf of Mexico.
       (d) Middle Mississippi River.--The term ``middle 
     Mississippi River'' means the portion of the Mississippi 
     River that begins at the confluence of the Missouri River and 
     flows to the lower Mississippi River.
       (e) Secretary.--The term ``Secretary'' means the Secretary 
     of the Army, acting through the Chief of Engineers.

[[Page S1858]]

     SEC. 4. GREATER MISSISSIPPI RIVER BASIN EXTREME WEATHER 
                   MANAGEMENT STUDY.

       (a) In General.--The Secretary shall carry out a study of 
     the Mississippi River Basin--
       (1) to improve the coordinated and comprehensive management 
     of water resource projects in the greater Mississippi River 
     Basin relating to extreme weather conditions; and
       (2) to evaluate the feasibility of any modifications to 
     those water resource projects and develop new water resource 
     projects to improve the reliability of navigation and more 
     effectively reduce flood risk.
       (b) Contents.--The study shall--
       (1) identify any Federal actions necessary to prevent and 
     mitigate the impacts of extreme weather, including changes to 
     authorized channel dimensions, operational procedures of 
     locks and dams, and reservoir management within the 
     Mississippi River Basin;
       (2) evaluate the effect on navigation and flood risk 
     management to the Mississippi River of all upstream rivers 
     and tributaries, especially the confluence of the Illinois 
     River, Missouri River, and Ohio River;
       (3) identify and make recommendations to remedy challenges 
     to the Corps of Engineers presented by extreme weather, 
     including river access, in carrying out its mission to 
     maintain safe, reliable navigation; and
       (4) identify and locate natural or other potential 
     impediments to maintaining navigation on the middle and lower 
     Mississippi River during periods of low water, including 
     existing industrial pipeline crossings.
       (c) Consultation and Use of Existing Data.--In carrying out 
     the study, the Secretary shall--
       (1) consult with appropriate committees of Congress, 
     Federal, State, tribal, and local agencies, environmental 
     interests, river navigation industry representatives, other 
     shipping and business interests, organized labor, and 
     nongovernmental organizations;
       (2) to the maximum extent practicable, use data in 
     existence on the date of enactment of this Act; and
       (3) incorporate lessons learned and best practices 
     developed as a result of past extreme weather events, 
     including major floods and the successful effort to maintain 
     navigation during the near historic low water levels on the 
     Mississippi River during the winter of 2012-2013.
       (d) Cost-sharing.--The Federal share of the cost of 
     carrying out the study under this section shall be 100 
     percent.
       (e) Report.--Not later than 3 years after the date of 
     enactment of this Act, the Secretary shall submit to Congress 
     a report on the study carried out under this section.

     SEC. 5. MISSISSIPPI RIVER FORECASTING IMPROVEMENTS.

       (a) In General.--The Secretary, in consultation with the 
     Secretary of the department in which the Coast Guard is 
     operating, the Director of the United States Geological 
     Survey, the Administrator of the National Oceanic and 
     Atmospheric Administration, and the Director of the National 
     Weather Service, as applicable, shall improve forecasting on 
     the Mississippi River by--
       (1) updating forecasting technology deployed on the 
     Mississippi River and its tributaries through--
       (A) the construction of additional automated river gages;
       (B) the rehabilitation of existing automated and manual 
     river gages; and
       (C) the replacement of manual river gages with automated 
     gages, as the Secretary determines to be necessary;
       (2) constructing additional sedimentation ranges on the 
     Mississippi River and its tributaries; and
       (3) deploying additional automatic identification system 
     base stations at river gage sites.
       (b) Prioritization.--In carrying out this section, the 
     Secretary shall prioritize the sections of the Mississippi 
     River on which additional and more reliable information would 
     have the greatest impact on maintaining navigation on the 
     Mississippi River.
       (c) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary shall submit to Congress 
     a report on the activities carried out by the Secretary under 
     this section.

     SEC. 6. CORPS OF ENGINEERS FLEXIBILITY IN MAINTAINING 
                   NAVIGATION.

       (a) In General.--If the Secretary determines it to be 
     critical to maintaining safe and reliable navigation, the 
     Secretary--
       (1) in consultation with the department in which the Coast 
     Guard is operating, may construct ingress and egress paths to 
     docks, loading facilities, fleeting areas, and other critical 
     locations outside of the authorized navigation channel on the 
     Mississippi River; and
       (2) operate and maintain, through dredging and construction 
     of river training structures, ingress and egress paths to 
     loading docks and fleeting areas outside of the authorized 
     navigation channel on the Mississippi River.
       (b) Mitigation.--The Secretary may mitigate through 
     dredging any incidental impacts to loading or fleeting areas 
     outside of the authorized navigation channel on the 
     Mississippi River that result from operation and maintenance 
     of the authorized channel.

     SEC. 7. MIDDLE MISSISSIPPI RIVER ENVIRONMENTAL PILOT PROGRAM.

       (a) In General.--In accordance with the project for 
     navigation, Mississippi River between the Ohio and Missouri 
     Rivers (Regulating Works), Missouri and Illinois, authorized 
     by the Act of June 25, 1910 (36 Stat. 631, chapter 382) 
     (commonly known as the ``River and Harbor Act of 1910''), the 
     Act of January 1, 1927 (44 Stat. 1010, chapter 47) (commonly 
     known as the ``River and Harbor Act of 1927''), and the Act 
     of July 3, 1930 (46 Stat. 918, chapter 847), the Secretary 
     shall carry out for a period of not less than 10 years, a 
     pilot program to restore and protect fish and wildlife 
     habitat in the middle Mississippi River.
       (b) Authorized Activities.--
       (1) In general.--As part of the pilot program carried out 
     under subsection (a), the Secretary shall conduct any 
     activities that are necessary to improve navigation through 
     the project while restoring and protecting fish and wildlife 
     habitat in the middle Mississippi River.
       (2) Inclusions.--Activities authorized under paragraph (1) 
     shall include--
       (A) the modification of navigation training structures;
       (B) the modification and creation of side channels;
       (C) the modification and creation of islands;
       (D) any studies and analyses necessary to develop adaptive 
     management principles; and
       (E) the acquisition from willing sellers of any land 
     associated with a riparian corridor needed to carry out the 
     goals of the pilot program.
       (c) Cost-sharing Requirement.--The cost-sharing 
     requirements under the provisions of law described in 
     subsection (a) for the project described in that subsection 
     shall apply to any activities carried out under this section.

     SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to carry out this 
     Act such sums as are necessary.

                                 S. 566

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Water Infrastructure Now 
     Public-Private Partnership Act'' or the ``WIN P3 Act''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) investment in water infrastructure is critical to 
     protecting property and personal safety through flood, 
     hurricane, and storm damage reduction activities;
       (2) investment in infrastructure on the inland waterways of 
     the United States is critical to the economy of the United 
     States through the maintenance of safe, reliable, and 
     efficient navigation for recreation and the movement of 
     billions of dollars in goods each year;
       (3) fiscal challenges facing Federal, State, local, and 
     tribal governments require new and innovative financing 
     structures to continue robust investment in public water 
     infrastructure;
       (4) under existing fiscal restraints and project delivery 
     processes, large-scale water infrastructure projects like the 
     lock and dam modernization on the upper Mississippi River and 
     Illinois River will take decades to complete, with benefits 
     for the lock modernization not expected to be realized until 
     2047;
       (5) the Corps of Engineers has an estimated backlog of more 
     than $60,000,000,000 in outstanding projects; and
       (6) in developing innovative financing options for water 
     infrastructure projects, any prior public investment in 
     projects must be protected.

     SEC. 3. WATER INFRASTRUCTURE NOW PILOT PROGRAM.

       (a) In General.--The Secretary of the Army, acting through 
     the Chief of Engineers, shall establish a pilot program to 
     evaluate the cost-effectiveness and project delivery 
     efficiency of allowing non-Federal interests to carry out 
     authorized flood damage reduction, hurricane and storm damage 
     reduction, and navigation projects.
       (b) Purposes.--The purposes of the pilot program are--
       (1) to identify project delivery and cost-saving 
     alternatives that reduce the backlog of authorized Corps of 
     Engineers projects;
       (2) to evaluate the technical, financial, and 
     organizational efficiencies of a non-Federal interest 
     carrying out the design, execution, management, and 
     construction of 1 or more projects; and
       (3) to evaluate alternatives for the decentralization of 
     the project planning, management, and operational decision-
     making processes of the Corps of Engineers.
       (c) Administration.--
       (1) In general.--In carrying out the pilot program, the 
     Secretary shall--
       (A) identify a total of not more than 15 flood damage 
     reduction, hurricane and storm damage reduction, and 
     navigation projects, including levees, floodwalls, flood 
     control channels, water control structures, and navigation 
     locks and channels, authorized for construction;
       (B) notify the Committee on Environment and Public Works of 
     the Senate and the Committee on Transportation and 
     Infrastructure of the House of Representatives upon the 
     identification of each project under the pilot program;
       (C) in consultation with the non-Federal interest, develop 
     a detailed project management plan for each identified 
     project that outlines the scope, budget, design, and 
     construction resource requirements necessary for the non-
     Federal interest to execute the

[[Page S1859]]

     project, or a separable element of the project;
       (D) on the request of the non-Federal interest, enter into 
     a project partnership agreement with the non-Federal interest 
     for the non-Federal interest to provide full project 
     management control for construction of the project, or a 
     separable element of the project, in accordance with plans 
     approved by the Secretary;
       (E) following execution of the project partnership 
     agreement, transfer to the non-Federal interest to carry out 
     construction of the project, or a separable element of the 
     project--
       (i) if applicable, the balance of the unobligated amounts 
     appropriated for the project, except that the Secretary shall 
     retain sufficient amounts for the Corps of Engineers to carry 
     out any responsibilities of the Corps of Engineers relating 
     to the project and pilot program; and
       (ii) additional amounts, as determined by the Secretary, 
     from amounts made available under section 5, except that the 
     total amount transferred to the non-Federal interest shall 
     not exceed the estimate of the Federal share of the cost of 
     construction, including any required design; and
       (F) regularly monitor and audit each project being 
     constructed by a non-Federal interest under this section to 
     ensure that the construction activities are carried out in 
     compliance with the plans approved by the Secretary and that 
     the construction costs are reasonable.
       (2) Restrictions.--Of the projects identified by the 
     Secretary--
       (A) not more than 12 projects shall--
       (i) have received Federal funds and experienced delays or 
     missed scheduled deadlines in the 5 fiscal years prior to the 
     date of enactment of this Act; or
       (ii) for more than 2 consecutive fiscal years, have an 
     unobligated funding balance for that project in the Corps of 
     Engineers construction account; and
       (B) not more than 3 projects shall--
       (i) have not received Federal funding for recapitalization 
     and modernization in the period beginning on the date on 
     which the project was authorized and ending on the date of 
     enactment of this Act; and
       (ii) be, in the determination of the Secretary, significant 
     to the national economy as a result of the impact the project 
     would have on the national transportation of goods.
       (3) Technical assistance.--On the request of a non-Federal 
     interest, the Secretary may provide technical assistance to 
     the non-Federal interest, if the non-Federal interest 
     contracts with the Secretary for the technical assistance and 
     compensates the Secretary for the technical assistance, 
     relating to--
       (A) any study, engineering activity, and design activity 
     for construction carried out by the non-Federal interest 
     under this section; and
       (B) obtaining any permits necessary for the project.
       (4) Waivers.--
       (A) In general.--For any project included in the pilot 
     program, the Secretary may waive or modify any applicable 
     Federal regulations for that project if the Secretary 
     determines that such a waiver would provide public and 
     financial benefits, including expediting project delivery and 
     enhancing efficiency while maintaining safety.
       (B) Notification.--The Secretary shall notify the Committee 
     on Environment and Public Works of the Senate and the 
     Committee on Transportation and Infrastructure of the House 
     of Representatives each time the Secretary issues a waiver or 
     modification under subparagraph (A).
       (d) Public Benefit Study.--
       (1) In general.--Before entering into a project partnership 
     agreement under this section, the Secretary shall enter into 
     an arrangement with an independent third party to conduct an 
     assessment of whether, and provide justification that, the 
     proposed partnership agreement would represent a better 
     public and financial benefit than a similar transaction using 
     public funding or financing.
       (2) Contents.--The study under paragraph (1) shall--
       (A) be completed by the third party in a timely manner and 
     in a period of not more than 90 days;
       (B) take into consideration any supporting materials and 
     data submitted by the Secretary, the nongovernmental party to 
     the proposed project partnership agreement, and other 
     stakeholders; and
       (C) recommend whether the project partnership agreement 
     will be in the public interest by determining whether the 
     agreement will provide public and financial benefits, 
     including expedited project delivery and savings to 
     taxpayers.
       (e) Cost Share.--Nothing in this Act affects the cost-
     sharing requirement applicable on the day before the date of 
     enactment of this Act to a project carried out under this 
     Act.
       (f) Report.--
       (1) In general.--Not later than 2 years after the date of 
     enactment of this Act, the Secretary shall submit to the 
     Committee on Environment and Public Works of the Senate and 
     the Committee on Transportation and Infrastructure of the 
     House of Representatives a report detailing the results of 
     the pilot program carried out under this section, including 
     any recommendations of the Secretary concerning whether the 
     program or any component of the program should be implemented 
     on a national basis.
       (2) Update.--Not later than 5 years after the date of 
     enactment of this Act, the Secretary shall submit to the 
     Committee on Environment and Public Works of the Senate and 
     the Committee on Transportation and Infrastructure of the 
     House of Representatives an update of the report described in 
     paragraph (1).
       (g) Administration.--All laws (including regulations) that 
     would apply to the Secretary if the Secretary were carrying 
     out the project shall apply to a non-Federal interest 
     carrying out a project under this Act.
       (h) Termination of Authority.--The authority to commence a 
     project under this Act terminates on the date that is 5 years 
     after the date of enactment of this Act.

     SEC. 4. APPLICABILITY.

       Nothing in this Act authorizes or permits the privatization 
     of any Federal asset.

     SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Secretary to 
     carry out this Act such sums as are necessary.
                                 ______