To reform the Army Corps of Engineers.

June 23, 2003

Mr. KIND (for himself, Mr. GILCHREST, Mr. BLUMENAUER, and Mrs. TAUSCHER) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure

To reform the Army Corps of Engineers.

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 `Army Corps of Engineers Reform Act of 2003'.

(b) TABLE OF CONTENTS-

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Secretary defined.

TITLE I--PROJECT PLANNING REFORM

Sec. 101. Principles and guidelines.

Sec. 102. Stakeholder advisory committees.

Sec. 103. Independent review.

Sec. 104. Public access to information.

Sec. 105. Benefit-cost analysis.

Sec. 106. Project criteria.

TITLE II--MITIGATION

Sec. 201. Full mitigation.

Sec. 202. Concurrent mitigation.

Sec. 203. Mitigation tracking system.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds the following:

(1) The Army Corps of Engineers is the primary Federal agency responsible for developing and managing the Nation's harbors, waterways, shorelines, and water resources.

(2) Scarce Federal resources require more efficient use of Corps of Engineers funding and greater oversight of Corps of Engineers analyses.

(3) Demand for recreation, clean water, and healthy wildlife habitat must be reflected in the Corps of Engineers project planning process.

(4) The social and environmental impacts of dams, levees, shoreline stabilization structures, and other projects must be adequately considered and fully mitigated.

(5) Affected interests must play a larger role in the oversight of Corps of Engineers project development.

(b) PURPOSES- The purposes of this Act are as follows:

(1) To ensure that the Nation's water resources investments are economically justified and enhance the environment.

(2) To provide independent review of Corps of Engineers feasibility studies, general reevaluation studies, and environmental impact statements.

(3) To ensure that mitigation for Corps of Engineers projects is successful and cost-effective.

(4) To enhance the involvement of affected interests in Corps of Engineers feasibility studies, general reevaluation studies, and environmental impact statements.

(5) To revise Corps of Engineers planning principles to meet the economic and environmental needs of riverside and coastal communities.

(6) To ensure that environmental analyses be considered as co-equal to economic analyses in the assessment of Corps of Engineers projects, recognizing the need for sound science in the evaluation of the impacts on the health of aquatic ecosystems.

(7) To ensure that the Corps of Engineers is making appropriate, up-to-date calculations in conducting cost-benefit analyses of Corps of Engineers projects.

SEC. 3. SECRETARY DEFINED.

In this Act, the term `Secretary' means the Secretary of the Army.

TITLE I--PROJECT PLANNING REFORM

SEC. 101. PRINCIPLES AND GUIDELINES.

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 economic development and environmental protection and restoration be co-equal goals of water resources planning and development.

`(b) REVISION OF PRINCIPLES AND GUIDELINES- Not later than 1 year after the date of enactment of the Army Corps of Engineers Reform Act of 2003, the Secretary shall revise the principles and guidelines of the Corps of Engineers for water resources projects--

`(1) to provide for the consideration of ecological restoration costs under Corps of Engineers economic models;

`(2) to incorporate new techniques in risk and uncertainty analysis;

`(3) to eliminate biases and disincentives for nonstructural flood damage reduction projects;

`(4) to incorporate new analytical techniques;

`(5) to encourage, to the maximum extent practicable, the restoration of aquatic ecosystems; and

`(6) to ensure that water resources projects are justified by benefits that accrue to the public at large and not to a limited number of private businesses.

`(c) UPDATE OF GUIDANCE- The Secretary shall update the Guidance for Conducting Civil Works Planning Studies (ER 1105-2-100) to comply with this section.'.

SEC. 102. STAKEHOLDER ADVISORY COMMITTEES.

(a) IN GENERAL- Upon receipt of a written request by any person or governmental entity, the Secretary shall establish for a water resources project that is authorized or substantially modified after the date of enactment of this Act a stakeholder advisory committee to assist the Secretary with the development of feasibility studies, general reevaluation studies, and environmental impact statements for the project.

(b) DURATION OF REVIEWS- A stakeholder advisory committee established for a project under this section may provide advice to the Secretary during planning and design of the project, beginning with the initiation of the project's draft feasibility study and ending with the issuance of the project's draft environmental impact statement.

(c) MEMBERSHIP- A stakeholder advisory committee established for a project under this section shall be composed of representatives of State and local agencies, tribal organizations, public interest groups, industry, scientific, and academic organizations, Federal agencies, and other interested citizens. The membership shall represent a balance of the social, economic, and environmental interests in the project.

(d) ROLE- A stakeholder advisory committee established for a project under this section shall advise the Secretary but shall not be required to make a formal recommendation.

(e) COSTS- The costs of a stakeholder advisory committee established for a project under this section--

(1) shall be a Federal expense;

(2) shall not exceed $250,000; and

(3) shall be considered as part of the total cost of the project.

(f) APPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT- The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to a stakeholder advisory committee established under this section.

SEC. 103. INDEPENDENT REVIEW.

(a) PROJECTS SUBJECT TO INDEPENDENT REVIEW-

(1) IN GENERAL- The Secretary shall ensure that feasibility studies, general reevaluation studies, and environmental impact statements for each water resources project described in paragraph (2) are subject to review by an independent panel of experts established under this section.

(2) PROJECTS SUBJECT TO REVIEW- A 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 Director of the United States Fish and Wildlife Service determines that the project is likely to have a significant adverse impact on fish or wildlife after implementation of proposed mitigation plans;

(D) the head of a Federal agency charged with reviewing the project determines that the project is likely to have a signficant adverse impact on environmental, cultural, or other resources under the jurisdiction of the agency after implementation of proposed mitigation plans; or

(E) the Secretary determines that the project is controversial under paragraph (3).

(3) CONTROVERSIAL PROJECTS- Upon receipt of a written request by an interested party or on the initiative of the Secretary, the Secretary shall determine whether or not a project is controversial under paragraph (2)(E). The Secretary shall determine that a project is controversial if the Secretary finds that--

(A) there is a significant public dispute as to the size, nature, or effects of the project; or

(B) there is a significant public dispute as to the economic or environmental costs or benefits of the project.

(4) AFFECTED STATE DEFINED- In paragraph (2)(B), the term `affected State' means a State that is at least partially within the drainage basin in which the project is located and would be economically or environmentally affected as a consequence of the project.

(b) OFFICE OF INDEPENDENT REVIEW-

(1) ESTABLISHMENT- There is established in the Office of the Assistant Secretary of the Army for Civil Works an Office of Independent Review (in this section referred to as the `Office').

(2) DIRECTOR-

(A) APPOINTMENT- The head of the Office shall be the Director of the Office of Independent Review (in this section referred to as the `Director'), who shall be appointed by the Secretary for a term of 3 years.

(B) QUALIFICATIONS- The Secretary shall select the Director from among individuals who are distinguished scholars. In making the selection, the Secretary shall consider any recommendations made by the Inspector General of the Army.

(C) LIMITATION ON APPOINTMENTS- The Secretary shall not appoint an individual to serve as the Director if the individual has a financial or close professional association with any organization or group with a strong financial or organizational interest in an ongoing water resources project.

(D) TERMS- An individual may not serve for more than 1 term as the Director.

(3) DUTIES- The Director shall establish a panel of experts to review each project subject to review under subsection (a).

(c) ESTABLISHMENT OF PANELS-

(1) IN GENERAL- As soon as practicable after the Secretary selects a preferred alternative for a project subject to review under subsection (a), 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 and not more than 9 independent experts who represent a balance of areas of expertise, including biologists, engineers, and economists.

(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 or close professional association with any organization or group with a strong financial or organizational interest in the project.

(4) CONSULTATION- The Director shall consult with the National Academy of Sciences in developing lists of individuals to serve on panels of experts under this section.

(5) 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 Secretary.

(6) TRAVEL EXPENSES- An individual serving on a panel of experts under this section shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(d) DUTIES OF PANELS- A panel of experts established for a project under this section shall--

(1) review each feasibility study, general reevaluation study, and environmental impact statement prepared for the project;

(2) assess the adequacy of the economic models used by the Secretary in reviewing the project to ensure that--

(A) multiple methods of economic analysis have been used; and

(B) any regional effects on navigation systems have been examined;

(3) assess the adequacy of the environmental models and analyses used by the Secretary in reviewing the project;

(4) receive and review written and oral comments of a technical nature concerning the project from the public; and

(5) submit to the Secretary a report containing the panel's economic, engineering, and environmental analysis of the project, including the panel's conclusions on the project's feasibility studies, general reevaluation studies, and environmental impact statements, with particular emphasis on areas of public controversy.

(e) DURATION OF PROJECT REVIEWS- A panel of experts shall complete its review of a project under this section not later than 180 days after the date of establishment of the panel and shall terminate upon submission of a final report to the Secretary under subsection (d)(5).

(f) RECOMMENDATIONS OF PANEL-

(1) CONSIDERATION BY SECRETARY- After receiving a report on a project from a panel of experts under this section and before entering a final record of decision for the project, the Secretary shall consider any recommendations contained in the report and prepare a written explanation for any recommendations not adopted.

(2) PUBLIC REVIEW; TRANSMITTAL TO CONGRESS- After receiving a report on a project from a panel of experts under this section, the Secretary shall--

(A) make a copy of the report and any written explanation of the Secretary on recommendations contained in the report available for public review under section 104; and

(B) transmit to Congress a copy of the report, together with any such written explanation.

(g) COSTS-

(1) IN GENERAL- The costs of a panel of experts established for a project under this section--

(A) shall be a Federal expense;

(B) shall not exceed $500,000; and

(C) shall be considered as part of the total cost of the project.

(2) WAIVER- The Secretary may waive the $500,000 limitation contained in paragraph (1)(B) in cases that the Secretary determines appropriate.

(h) 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. 104. PUBLIC ACCESS TO INFORMATION.

(a) IN GENERAL- The Secretary shall ensure that information related to the analysis of a water resources project by the Corps of Engineers, including all supporting data, analytical documents, and information that the Corps of Engineers has considered in its analysis, is made available to any individual upon request and to the public on the Internet.

(b) TYPES OF INFORMATION- Information about a water resources project to be made available under subsection (a) shall include any information that had been made available to the project sponsor and all data used by the Corps of Engineers in its justification and analysis of the project.

(c) EXCEPTION FOR TRADE SECRETS-

(1) IN GENERAL- The Secretary shall not make information available under subsection (a) that the Secretary determines to be a trade secret of the person who supplied the information to the Corps of Engineers.

(2) CRITERIA FOR TRADE SECRETS- The Secretary shall consider information to be a trade secret only if--

(A) the person who supplied the information to the Corps of Engineers--

(i) has not disclosed the information to any person other than (I) an officer or employee of the United States or a State or local government, (II) an employee of such person, or (III) a person who 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 such measures;

(B) the information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law; and

(C) disclosure of the information is likely to cause substantial harm to the competitive position of such person.

SEC. 105. BENEFIT-COST ANALYSIS.

Section 308(a) of the Water Resources Development Act of 1990 (33 U.S.C. 2318(a)) is amended--

(1) by striking `and' at the end of paragraph (1)(B);

(2) by striking the period at the end of paragraph (2) and inserting `; and'; and

(3) by adding at the end the following:

`(3) any projected benefit arising from the draining, reduction, or elimination of wetlands attributable to increases in the value of privately owned property, increases in the quantity of privately owned property, or increases in the value of privately owned services.'.

SEC. 106. PROJECT CRITERIA.

After the date of enactment of this Act, the Secretary shall not submit to Congress any proposal to authorize or substantially modify a water resources project unless the proposal contains a certification by the Secretary that the project minimizes to the greatest extent practicable adverse impacts on--

(1) the natural hydrologic patterns of aquatic ecosystems; and

(2) the value or native diversity of aquatic ecosystems.

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) in the first sentence of paragraph (1) by inserting `fully' before `mitigate'; and

(2) by adding at the end the following:

`(3) STANDARDS FOR MITIGATION- To mitigate losses to fish and wildlife resulting from a water resources project, the Secretary, at a minimum, shall acquire and restore an acre of habitat to replace each acre of habitat negatively impacted by the project. The mitigation plan shall include a detailed and specific plan to monitor mitigation implementation and success.

`(4) DESIGN OF MITIGATION PROJECTS- The Secretary shall design mitigation projects to reflect contemporary understanding of the importance of spatial distribution of habitat and the natural hydrology of aquatic ecosystems, and shall fully mitigate the adverse hydrologic impacts of projects.

`(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 has the greatest probability of cost-effectively and successfully mitigating the adverse impacts of the project on aquatic resources and fish and wildlife.

`(6) COMPLETION OF MITIGATION BEFORE CONSTRUCTION OF NEW PROJECTS- The Secretary shall complete all planned mitigation in a particular watershed before constructing any new water resources project in that watershed.'.

SEC. 202. CONCURRENT MITIGATION.

Section 906(a)(1) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(a)(1)) is amended by adding at the end the following: `To ensure concurrent mitigation, the Secretary shall complete 50 percent of required mitigation before beginning project construction and shall complete the remainder of required mitigation as expeditiously as practicable and in no case later than the last day of project construction.'.

SEC. 203. MITIGATION TRACKING SYSTEM.

(a) IN GENERAL- Not later than 6 months after the date of enactment of this Act, the Secretary shall establish a record-keeping system to track the following information:

(1) The amount and type of wetlands and other habitat types impacted by the operation and maintenance of each water resources project carried out by the Secretary.

(2) The amount and type of mitigation required for the operation and maintenance of each water resources project carried out by the Secretary.

(3) The amount and type of mitigation that has been completed for the operation and maintenance of each water resources project carried out by the Secretary.

(4) Wetland losses permitted under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) and required mitigation for such losses.

(b) REQUIRED INFORMATION AND ORGANIZATION- The record-keeping system shall include information on impacts and mitigation described in subsection (a) occurring after 1969 and shall be organized by watershed, project, permit application, and zip code.

(c) AVAILABILITY OF INFORMATION- The Secretary shall make information contained in the record-keeping system available to the public on the Internet.

END