To provide for reform of the Corps of Engineers, and for other purposes.

March 10, 2004

Mr. FEINGOLD (for himself, Mr. McCain and Mr. Daschle) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

To provide for reform of the Corps of Engineers, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Corps of Engineers Modernization and Improvement Act of 2004'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

TITLE I--MODERNIZING PROJECT PLANNING

Sec. 101. Modern planning principles.

Sec. 102. Independent review.

Sec. 103. Benefit-cost analysis.

Sec. 104. Benefit-cost ratio.

Sec. 105. Cost sharing.

TITLE II--MITIGATION

Sec. 201. Full mitigation.

Sec. 202. Concurrent mitigation.

Sec. 203. Mitigation tracking system.

TITLE III--ADDRESSING THE PROJECT BACKLOG

Sec. 301. Project backlog.

Sec. 302. Primary mission focus.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds that--

(1) the Corps of Engineers is the primary Federal agency responsible for developing and managing the harbors, waterways, shorelines, and water resources of the United States;

(2) the scarcity of Federal resources requires more efficient use of Corps resources and funding, and greater oversight of Corps analyses;

(3) appropriate cost sharing ensures efficient measures of project demands and enables the Corps to meet more national project needs;

(4) the significant demand for recreation, clean water, and healthy wildlife habitat must be fully reflected in the project planning and construction process of the Corps;

(5) the human health, environmental, and social impacts of dams, levees, shoreline stabilization structures, river training structures, river dredging, and other Corps projects and activities must be adequately considered and, in any case in which adverse impacts cannot be avoided, fully mitigated;

(6) the National Academy of Sciences has concluded that the Principles and Guidelines for water resources projects need to be modernized and updated to reflect current economic practices and environmental laws and planning guidelines; and

(7) affected interests must have access to information that will allow those interests to play a larger and more effective role in the oversight of Corps project development and mitigation.

(b) PURPOSES- The purposes of this Act are--

(1) to ensure that the water resources investments of the United States are economically justified and enhance the environment;

(2) to provide independent review of feasibility studies, general reevaluation studies, and environmental impact statements of the Corps;

(3) to ensure timely, ecologically successful, and cost-effective mitigation for Corps projects;

(4) to ensure appropriate local cost sharing to assist in efficient project planning focused on national needs;

(5) to enhance the involvement of affected interests in feasibility studies, general reevaluation studies, and environmental impact statements of the Corps;

(6) to modernize planning principles of the Corps to meet the economic and environmental needs of riverside and coastal communities and the nation;

(7) to ensure that environmental protection and restoration, and national economic development, are co-equal goals, and given co-equal emphasis, during the evaluation, planning, and construction of Corps projects;

(8) to ensure that project planning, project evaluations, and project recommendations of the Corps are based on sound science and economics and on a full evaluation of the impacts to the health of aquatic ecosystems; and

(9) to ensure that the determination of benefits and costs of Corps projects properly reflects current law and Federal policies designed to protect human health and the environment.

SEC. 3. DEFINITIONS.

In this Act:

(1) ACADEMY- The term `Academy' means the National Academy of Sciences.

(2) CORPS- The term `Corps' means the Corps of Engineers.

(3) PRINCIPLES AND GUIDELINES- The term `Principles and Guidelines' means the principles and guidelines of the Corps for water resources projects (consisting of Engineer Regulation 1105-2-100 and Engineer Pamphlet 1165-2-1).

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

TITLE I--MODERNIZING PROJECT PLANNING

SEC. 101. MODERN PLANNING PRINCIPLES.

(a) PLANNING PRINCIPLES- Section 209 of the Flood Control Act of 1970 (42 U.S.C. 1962-2) is amended to read as follows:

`SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

`(a) IN GENERAL- It is the intent of Congress that--

`(1) national economic development and environmental protection and restoration are co-equal goals of water resources project planning and management; and

`(2) Federal agencies manage and, if clearly justified, construct water resource projects--

`(A) to meet national economic needs; and

`(B) to protect and restore the environment.

`(b) REVISION OF PLANNING GUIDELINES, REGULATIONS AND CIRCULARS- Not later than 18 months after the date of enactment of the Corps of Engineers Modernization and Improvement Act of 2004, the Secretary, in collaboration with the National Academy of Sciences, shall develop proposed revisions of, and revise, the planning guidelines, regulations, and circulars of the Corps.

`(c) ADDITIONAL REQUIREMENTS- Corps planning regulations revised under subsection (b) shall--

`(1) incorporate new and existing analytical techniques that reflect the probability of project benefits and costs;

`(2) apply discount rates provided by the Office of Management and Budget;

`(3) eliminate biases and disincentives that discourage the use of nonstructural approaches to water resources development and management;

`(4) encourage, to the maximum extent practicable, the restoration of ecosystems;

`(5) consider the costs and benefits of protecting or degrading natural systems;

`(6) ensure that projects are justified by benefits that accrue to the public at large;

`(7) ensure that benefit-cost calculations reflect a credible schedule for project construction;

`(8) ensure that each project increment complies with section 104;

`(9) include as a cost any increase in direct Federal payments or subsidies and exclude as a benefit any increase in direct Federal payments or subsidies; and

`(10) provide a mechanism by which, at least once every 5 years, the Secretary shall collaborate with the National Academy of Sciences to review, and if necessary, revise all planning regulations, guidelines, and circulars.

`(d) NATIONAL NAVIGATION AND PORT PLAN-

`(1) IN GENERAL- Not later than 18 months after the date of enactment of the Corps of Engineers Modernization and Improvement Act of 2004, the Corps shall develop and annually update an integrated, national plan to manage, rehabilitate and, if justified, modernize inland waterway and port infrastructure to meet current national economic and environmental needs.

`(2) TOOLS- To develop the plan, the Corps shall employ economic tools that--

`(A) recognize the importance of alternative transportation destinations and modes; and

`(B) employ practicable, cost-effective congestion management alternatives before constructing and expanding infrastructure to increase waterway and port capacity.

`(3) BENEFITS AND PROXIMITY- The Corps shall give particular consideration to the benefits and proximity of proposed and existing port, harbor, waterway, rail and other transportation infrastructure in determining whether to construct new water resources projects.

`(e) NOTICE AND COMMENT- The Secretary shall comply with the notice and comment provisions of chapter 551 of title 5, United States Code, in issuing revised planning regulations, guidelines and circulars.

`(f) APPLICABILITY- On completion of the revisions required under this section, the Secretary shall apply the revised regulations to projects for which a draft feasibility study or draft reevaluation report has not yet been issued.

`(g) PROJECT REFORMULATION- Projects of the Corps, and separable elements of projects of the Corps, that have been authorized for 10 years, but for which less than 15 percent of appropriations specifically identified for construction have been obligated, shall not be constructed unless a general reevaluation study demonstrates that the project or separable element meets--

`(1) all project criteria and requirements applicable at the time the study is initiated, including requirements under this section; and

`(2) cost share and mitigation requirements of this Act.'.

(b) CONFORMING AMENDMENTS-

(1) Section 80 of the Water Resources Development Act of 1974 (42 U.S.C. 1962(d)-17) is repealed.

(2) Section 7(a) of the Department of Transportation Act (Public Law 89-670; 80 Stat. 941) is repealed.

SEC. 102. INDEPENDENT REVIEW.

(a) DEFINITIONS- In this section:

(1) AFFECTED STATE- The term `affected State', with respect to a water resources project, means a State or portion of a State that--

(A) is located, at least partially, within the drainage basin in which the project is carried out; and

(B) would be economically or environmentally affected as a result of the project.

(2) DIRECTOR- The term `Director' means the Director of Independent Review appointed under subsection (c)(1).

(b) PROJECTS SUBJECT TO INDEPENDENT REVIEW-

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

(2) PROJECTS SUBJECT TO REVIEW- A water resources project shall be subject to review under paragraph (1) if--

(A) the project has an estimated total cost of more than $25,000,000, including mitigation costs;

(B) the Governor of an affected State requests the establishment of an independent panel of experts for the project;

(C) the head of a Federal agency charged with reviewing the project determines that the project is likely to have a significant adverse impact on environmental, cultural, or other resources under the jurisdiction of the agency; or

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

(3) CONTROVERSIAL PROJECTS-

(A) IN GENERAL- The Secretary shall determine that a water resources project is controversial for the purpose of paragraph (2)(D) if the Secretary finds that--

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

(ii) there is a significant dispute as to the economic or environmental costs or benefits of the project; or

(iii) there is a significant dispute as to the benefits to the communities affected by the project of a project alternative that--

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

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

(B) WRITTEN REQUESTS- Not later than 30 days after the date on which the Secretary receives a written request of any party, or on the initiative of the Secretary, the Secretary shall determine whether a project is controversial.

(c) DIRECTOR OF INDEPENDENT REVIEW-

(1) APPOINTMENT- The Inspector General of the Army shall appoint in the Office of the Inspector General of the Army a Director of Independent Review.

(2) QUALIFICATIONS- The Inspector General of the Army shall select the Director from among individuals who are distinguished experts in biology, hydrology, engineering, economics, or another discipline relating to water resources management.

(3) LIMITATION ON APPOINTMENTS- The Inspector General of the Army shall not appoint an individual to serve as the Director if the individual has a financial interest in or close professional association with any entity with a financial interest in a water resources project that, on the date of appointment of the Director, is--

(A) under construction;

(B) in the preconstruction engineering and design phase; or

(C) under feasibility or reconnaissance study by the Corps.

(4) TERMS-

(A) IN GENERAL- The term of a Director appointed under this subsection shall be 6 years.

(B) TERM LIMIT- An individual may serve as the Director for not more than 2 nonconsecutive terms.

(5) DUTIES- The Director shall establish a panel of experts to review each water resources project that is subject to review under subsection (b).

(d) ESTABLISHMENT OF PANELS-

(1) IN GENERAL- After the Secretary selects a preferred alternative for a water resources project subject to review under subsection (b) in a formal draft feasibility report, draft general reevaluation report, or draft environmental impact statement, the Director shall establish a panel of experts to review the project.

(2) MEMBERSHIP- A panel of experts established by the Director for a project shall be composed of not less than 5 nor more than 9 independent experts (including 1 or more biologists, hydrologists, engineers, and economists) who represent a range of areas of expertise.

(3) LIMITATION ON APPOINTMENTS- The Director shall not appoint an individual to serve on a panel of experts for a project if the individual has a financial interest in or close professional association with any entity with a financial interest in the project.

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

(5) NOTIFICATION-

(A) IN GENERAL- To ensure that the Director is able to effectively carry out the duties of the Director under this section, the Secretary shall notify the Director in writing not later than 90 days before the release of a draft feasibility report, draft general reevaluation report, or draft environmental impact statement, for every water resources project.

(B) CONTENTS- The notification shall include--

(i) the estimated cost of the project; and

(ii) a preliminary assessment of whether a panel of experts may be required.

(6) COMPENSATION- An individual serving on a panel of experts under this section shall be compensated at a rate of pay to be determined by the Inspector General of the Army.

(7) TRAVEL EXPENSES- A member of a panel of experts under this section shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the panel.

(e) DUTIES OF PANELS-

(1) IN GENERAL- A panel of experts established for a water resources project under this section shall--

(A) review each draft feasibility report, draft general reevaluation report, and draft environmental impact statement prepared for the project;

(B) assess the adequacy of the economic, scientific, and environmental models used by the Secretary in reviewing the project to ensure that--

(i) the best available economic and scientific methods of analysis have been used;

(ii) the best available economic, scientific, and environmental data have been used; and

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

(C) receive from the public written and oral comments concerning the project;

(D) not later than the deadline established under subsection (f), submit to the Secretary a report concerning the economic, engineering, and environmental analyses of the project, including the conclusions of the panel, with particular emphasis on areas of public controversy, with respect to the feasibility report, general reevaluation report, or environmental impact statement; and

(E) not later than 30 days after the date of issuance of a final feasibility report, final general reevaluation report, or final environmental impact statement, submit to the Secretary a brief report stating the views of the panel on the extent to which the final analysis adequately addresses issues or concerns raised by each earlier evaluation by the panel.

(2) EXTENSIONS-

(A) IN GENERAL- The panel may request from the Director a 30-day extension of the deadline established under paragraph (1)(E).

(B) RECORD OF DECISION- The Secretary shall not issue a record of decision until after, at the earliest--

(i) the final day of the 30-day period described in paragraph (1)(E); or

(ii) if the Director grants an extension under subparagraph (A), the final day of end of the 60-day period beginning on the date of issuance of a final feasibility report described in paragraph (1)(E) and ending on the final day of the extension granted under subparagraph (A).

(f) DURATION OF PROJECT REVIEWS-

(1) DEADLINE- Except as provided in paragraph (2), not later than 180 days after the date of establishment of a panel of experts for a water resources project under this section, the panel shall complete--

(A) each required review of the project; and

(B) all other duties of the panel relating to the project (other than the duties described in subsection (e)(1)(E)).

(2) EXTENSION OF DEADLINE FOR REPORT ON PROJECT REVIEWS- Not later than 240 days after the date of issuance of a draft feasibility report, draft general reevaluation report, or draft environmental impact statement for a project, if a panel of experts submits to the Director before the end of the 180-day period described in paragraph (1), and the Director approves, a request for a 60-day extension of the deadline established under that paragraph, the panel of experts shall submit to the Secretary a report required under subsection (e)(1)(D).

(g) RECOMMENDATIONS OF PANEL-

(1) CONSIDERATION BY SECRETARY-

(A) IN GENERAL- If the Secretary receives a report on a water resources project from a panel of experts under this section by the applicable deadline under subsection (e)(1)(E) or (f), the Secretary shall, at least 14 days before entering a final record of decision for the water resources project--

(i) take into consideration any recommendations contained in the report; and

(ii) prepare a written explanation for any recommendations not adopted.

(B) INCONSISTENT RECOMMENDATIONS AND FINDINGS- Recommendations and findings of the Secretary that are inconsistent with the recommendations and findings of a panel of experts under this section shall not be entitled to deference in a judicial proceeding.

(2) PUBLIC REVIEW; SUBMISSION TO CONGRESS- After receiving a report on a water resources project from a panel of experts under this section (including a report under subsection (e)(1)(E)), the Secretary shall--

(A) immediately make a copy of the report (and, in a case in which any written explanation of the Secretary on recommendations contained in the report is completed, shall immediately make a copy of the response) available for public review; and

(B) include a copy of the report (and any written explanation of the Secretary) in any report submitted to Congress concerning the project.

(h) PUBLIC ACCESS TO INFORMATION-

(1) IN GENERAL- Except as provided in paragraph (3), the Secretary shall ensure that information relating to the analysis of any water resources project by the Corps, including all supporting data, analytical documents, and information that the Corps has considered in the analysis, is made available--

(A) to any individual upon request;

(B) to the public on the Internet; and

(C) to an independent review panel, if such a panel is established for the project.

(2) TYPES OF INFORMATION- Information concerning a project that is available under paragraph (1) shall include--

(A) any information that has been made available to the non-Federal interests with respect to the project; and

(B) all data and information used by the Corps in the justification and analysis of the project.

(3) EXCEPTION FOR TRADE SECRETS-

(A) IN GENERAL- The Secretary shall not make information available under paragraph (1) that the Secretary determines to be a trade secret of any person that provided the information to the Corps.

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

(i) the person that provided the information to the Corps--

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

(aa) an officer or employee of the United States or a State or local government;

(bb) an employee of the person that provided the information to the Corps; or

(cc) a person that is bound by a confidentiality agreement; and

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

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

(iii) disclosure of the information is likely to cause substantial harm to the competitive position of the person that provided the information to the Corps.

(i) COSTS-

(1) LIMITATION ON COST OF REVIEW- The cost of conducting a review of a water resources project under this section shall not exceed--

(A) $250,000 for a project, if the total cost of the project in current year dollars is less than $50,000,000; and

(B) 0.5 percent of the total cost of the project in current year dollars, if the total cost is $50,000,000 or more.

(2) TREATMENT- The cost of conducting a review of a project under this section shall be considered to be part of the total cost of the project.

(3) COST SHARING- A review of a project under this section shall be subject to section 105(a) of the Water Resources Development Act of 1986 (33 U.S.C. 2215(a)).

(4) WAIVER OF LIMITATION- The Secretary may waive a limitation under paragraph (1) if the Secretary determines that the waiver is appropriate.

(j) APPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT- The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to a panel of experts established under this section.

SEC. 103. BENEFIT-COST ANALYSIS.

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

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

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

(3) by adding at the end the following:

`(3) any projected benefit attributable to any change in, or intensification of, land use arising from the draining, reduction, or elimination of wetlands.'.

SEC. 104. BENEFIT-COST RATIO.

(a) RECOMMENDATION OF PROJECTS- Beginning in fiscal year 2004, in the case of a water resources project that is subject to a benefit-cost analysis, the Secretary may recommend the project for authorization by Congress, and may choose the project as a recommended alternative in any record of decision or environmental impact statement, only if the project, in addition to meeting any other criteria required by law, has projected national benefits that are at least 1.5 times as great as the estimated total costs of the project, based on current discount rates provided by the Office of Management and Budget.

(b) REVIEW AND DEAUTHORIZATION OF PROJECTS-

(1) REVIEW- Not later than 180 days after the date of enactment of this Act, the Secretary shall review each water resources project described in paragraph (2) to determine whether the projected benefits of the project are less than 1.5 times as great as the estimated total costs of the project.

(2) PROJECTS SUBJECT TO REVIEW- A water resources project shall be subject to review under paragraph (1) if--

(A) the project was authorized before the date on which the review is commenced;

(B) the project is subject to a benefit-cost analysis; and

(C) an amount that is less than 33 percent of the estimated total costs of the project (excluding costs of preconstruction engineering and design) has been obligated for the project.

(3) DEAUTHORIZATIONS-

(A) IN GENERAL- On completion of the review under paragraph (1), the Secretary shall submit to Congress a list that describes each water resources project the projected benefits of which are less than 1.5 times as great as the estimated total costs of the project.

(B) PROJECTS- A project included on the list under subparagraph (A) shall be deauthorized effective beginning 3 years after the date of submission of the list to Congress unless, during that 3-year period, Congress reauthorizes the project.

(4) DEAUTHORIZED PROJECTS FOR WHICH CONSTRUCTION HAS BEEN COMMENCED- In the case of a water resources project that is deauthorized under paragraph (3) and for which construction

(other than preconstruction engineering and design) has been commenced, the Secretary may take such actions as are necessary with respect to the project to protect public health and safety and the environment.

SEC. 105. COST SHARING.

(a) INLAND WATERWAYS-

(1) CONSTRUCTION- Section 102(a) of the Water Resources Development Act of 1986 (33 U.S.C. 2212(a)) is amended--

(A) in the first sentence, by striking `One-half of the costs of construction' and inserting `Forty-five percent of the costs of construction'; and

(B) by striking the second sentence and inserting `Fifty-five percent of those costs shall be paid only from amounts appropriated from the Inland Waterways Trust Fund.'.

(2) OPERATIONS AND MAINTENANCE- Section 102 of the Water Resources Development Act of 1986 (33 U.S.C. 2212) is amended by striking subsections (b) and (c) and inserting the following:

`(b) OPERATION AND MAINTENANCE-

`(1) FEDERAL SHARE- The Federal share of the cost of operation and maintenance shall be 100 percent in the case of--

`(A) a project described in paragraph (1) or (2) of subsection (a); or

`(B) the portion of the project authorized by section 844 that is allocated to inland navigation.

`(2) SOURCE OF FEDERAL SHARE-

`(A) GENERAL FUND- In the case of a project described in paragraph (1) or (2) of subsection (a) with respect to which the cost of operation and maintenance is less than or equal to 2 cents per ton mile, or in the case of the portion of the project authorized by section 844 that is allocated to inland navigation, the Federal share under paragraph (1) shall be paid only from amounts appropriated from the general fund of the Treasury.

`(B) GENERAL FUND AND INLAND WATERWAYS TRUST FUND- In the case of a project described in paragraph (1) or (2) of subsection (a) with respect to which the cost of operation and maintenance is greater than 2 but less than or equal to 10 cents per ton mile--

`(i) 75 percent of the Federal share under paragraph (1) shall be paid only from amounts appropriated from the general fund of the Treasury; and

`(ii) 25 percent of the Federal share under paragraph (1) shall be paid only from amounts appropriated from the Inland Waterways Trust Fund.

`(C) INLAND WATERWAYS TRUST FUND- In the case of a project described in paragraph (1) or (2) of subsection (a) with respect to which the cost of operation and maintenance is greater than 10 cents per ton mile but less than 30 cents per ton mile, 100 percent of the Federal share under paragraph (1) shall be paid only from amounts appropriated from the Inland Waterways Trust Fund.

`(D) NON-FEDERAL RESPONSIBILITY-

`(i) IN GENERAL- In the case of a project described in paragraph (1) or (2) of subsection (a) with respect to which the cost of operation and maintenance is greater than 30 cents per ton-mile, the cost of operations and maintenance shall be a non-Federal responsibility.

`(ii) DEAUTHORIZATION- In a case in which the Secretary determines that the non-Federal interests for a project described in clause (i) are unable to pay for the cost of operations and maintenance of the project, the project is deauthorized as of the date of that determination.'.

(b) FLOOD DAMAGE REDUCTION- Section 103 of the Water Resources Development Act of 1986 (33 U.S.C. 2213) is amended--

(1) in subsections (a)(2) and (b), by striking `35' each place it appears and inserting `50';

(2) in the paragraph heading of subsection (a)(2), by striking `35 PERCENT MINIMUM' and inserting `MINIMUM'; and

(3) in the paragraph heading of subsection (b), by striking `35' and inserting `50'.

(c) BEACH REPLACEMENT- Section 103(d)(2)(A) of the Water Resources Development Act of 1986 (33 U.S.C. 2213(d)(2)) is amended--

(1) by redesignating subparagraphs (B) and (C) as subparagraphs (C) and (D), respectively; and

(2) by inserting after subparagraph (A) the following:

`(B) 2004 and subsequent projects- For any project authorized after the date of enactment of the Corps of Engineers Modernization and Improvement Act of 2004, the non-Federal cost of the periodic nourishment of the project, or any measure for shore protection or beach erosion control for the project, shall be 65 percent.'.

TITLE II--MITIGATION

SEC. 201. FULL MITIGATION.

Section 906(d) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(d)) is amended--

(1) by striking paragraph (1) and inserting the following:

`(1) PROJECTS-

`(A) IN GENERAL- After November 17, 1986, the Secretary shall not submit to Congress any proposal for the authorization of any water resources project, and shall not choose a project alternative in any final record of decision, environmental impact statement, or environmental assessment, unless the report contains--

`(i) a specific plan to fully mitigate losses of aquatic and terrestrial resources

and fish and wildlife created by the project; or

`(ii) a determination by the Secretary that the project will have negligible adverse impact on aquatic and terrestrial resources and fish and wildlife.

`(B) SPECIFIC REQUIREMENTS- Specific mitigation plans shall ensure that impacts to bottomland hardwood forests and other habitat types are mitigated in kind.

`(C) CONSULTATION- In carrying out this paragraph, the Secretary shall consult with appropriate Federal and non-Federal agencies.'; and

(2) by adding at the end the following:

`(3) STANDARDS FOR MITIGATION-

`(A) IN GENERAL- To fully mitigate losses to fish and wildlife resulting from a water resources project, the Secretary shall, at a minimum--

`(i) acquire and restore 1 acre of superior or equivalent habitat of the same type to replace each acre of habitat adversely affected by the project; and

`(ii) replace the hydrologic functions and characteristics, the ecological functions and characteristics, and the spatial distribution of the habitat adversely affected by the project.

`(B) DETAILED MITIGATION PLAN- The specific mitigation plan for a water resources project under paragraph (1) shall include, at a minimum--

`(i) a detailed and specific plan to monitor mitigation implementation and ecological success, including the designation of the entities that will be responsible for monitoring;

`(ii) specific ecological success criteria by which the mitigation will be evaluated and determined to be successful, prepared in consultation with the United States Fish and Wildlife Service;

`(iii) a detailed description of the land and interests in land to be acquired for mitigation and the basis for a determination that land and interests are available for acquisition;

`(iv) sufficient detail regarding the chosen mitigation sites and type and amount of restoration activities to permit a thorough evaluation of the plan's likelihood of ecological success and resulting aquatic and terrestrial resource functions and habitat values; and

`(v) a contingency plan for taking corrective actions if monitoring demonstrates that mitigation efforts are not achieving ecological success as described in the ecological success criteria.

`(C) APPLICABLE LAW- A time period for mitigation monitoring or for the implementation and monitoring of contingency plan actions shall not be subject to the deadlines described in section 202.

`(4) DETERMINATION OF MITIGATION SUCCESS-

`(A) IN GENERAL- Mitigation shall be considered to be successful at the time at which monitoring demonstrates that the mitigation has met the ecological success criteria established in the mitigation plan.

`(B) REQUIREMENTS FOR SUCCESS- To ensure the success of any attempted mitigation, the Secretary shall--

`(i) consult yearly with the United States Fish and Wildlife Service on each water resources project requiring mitigation to determine whether mitigation monitoring for that project demonstrates that the project is achieving, or has achieved, ecological success;

`(ii) ensure that implementation of the mitigation contingency plan for taking corrective action begins not later than 30 days after a finding by the Secretary or the United States Fish and Wildlife Service that the original mitigation efforts likely will not result in, or have not resulted in, ecological success;

`(iii) complete implementation of the contingency plan as expeditiously as practicable; and

`(iv) ensure that monitoring of mitigation efforts, including those implemented through a mitigation contingency plan, continues until the monitoring demonstrates that the mitigation has met the ecological success criteria.

`(5) RECOMMENDATION OF PROJECTS- The Secretary shall not recommend a water resources project alternative or choose a project alternative in any final record of decision, environmental impact statement, or environmental assessment completed after the date of enactment of this paragraph unless the Secretary determines that the mitigation plan for the alternative will successfully mitigate the adverse impacts of the project on aquatic and terrestrial resources, hydrologic functions, and fish and wildlife.

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

SEC. 202. CONCURRENT MITIGATION.

Section 906(a) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(a)) is amended--

(1) by striking `(a)(1) In the case' and inserting the following:

`(a) MITIGATION-

`(1) IN GENERAL- In the case';

(2) in paragraph (1), by striking `interests--' and all that follows through `losses),' and inserting the following: `interests shall be undertaken or acquired--

`(A) before any construction of the project (other than such acquisition) commences; or

`(B) concurrently with the acquisition of land and interests in land for project purposes (other than mitigation of fish and wildlife losses);';

(3) in paragraph (2), by striking `(2) For the purposes' and inserting the following:

`(2) COMMENCEMENT OF CONSTRUCTION- For the purpose'; and

(4) by adding at the end the following:

`(4) IMPLEMENTATION-

`(A) IN GENERAL- Except as provided in subparagraph (B), to ensure concurrent mitigation, the Secretary shall implement--

`(i) 50 percent of required mitigation before beginning construction of a project; and

`(ii) the remainder of required mitigation as expeditiously as practicable, but not later than the last day of construction of the project or separable element of the project.

`(B) EXCEPTION FOR PHYSICAL IMPRACTICABILITY- In a case in which the Secretary determines that it is physically impracticable to complete mitigation by the last day of construction of the project or separable element of the project, the Secretary shall reserve or reprogram sufficient funds to ensure that mitigation implementation is completed as expeditiously as practicable, but in no case later than the end of the next fiscal year immediately following the last day of that construction.

`(5) USE OF FUNDS- Funds made available for preliminary engineering and design, construction, or operations and maintenance shall be available for use in carrying out this section.'.

SEC. 203. MITIGATION TRACKING SYSTEM.

(a) IN GENERAL- Not later than 180 days after the date of enactment of this Act, the Secretary shall establish a recordkeeping system to track each water resources project constructed, operated, or maintained by the Secretary, and for each permit issued under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344)--

(1) the quantity and type of wetland and other habitat types affected by the project, project operation, or permitted activity;

(2) the quantity and type of mitigation required for the project, project operation or permitted activity;

(3) the quantity and type of mitigation that has been completed for the project, project operation or permitted activity; and

(4) the status of monitoring for the mitigation carried out for the project, project operation or permitted activity.

(b) REQUIRED INFORMATION AND ORGANIZATION- The recordkeeping system shall--

(1) include information on impacts and mitigation described in subsection (a) that occur after December 31, 1969; and

(2) be organized by watershed, project, permit application, and zip code.

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

TITLE III--ADDRESSING THE PROJECT BACKLOG

SEC. 301. PROJECT BACKLOG.

(a) REVIEW AND REPORT ON WATER RESOURCES CONSTRUCTION BACKLOG-

(1) DEFINITIONS- In this subsection:

(A) ACTIVE- The term `active', with respect to a project, means that--

(i) the project is economically justified;

(ii) the project has received funding for--

(I) preconstruction engineering and design; or

(II) construction; and

(iii) the non-Federal interests with respect to the project have demonstrated willingness and the ability to provide the required non-Federal share.

(B) DEFERRED- The term `deferred', with respect to a project, means that the project--

(i) has doubtful economic justification;

(ii) requires reevaluation to determine the economic feasibility of the project; or

(iii) is a project for which the non-Federal interests are unable to provide required cooperation.

(C) INACTIVE- The term `inactive', with respect to a project, means that--

(i) the project is not economically justified;

(ii) the project no longer meets current and prospective needs as described in a feasibility report or general reevaluation report;

(iii) the non-Federal interests with respect to the project have not demonstrated willingness or the ability to provide the required non-Federal share; or

(iv)(I) the project most recently received, under an Act of Congress, authorization or reauthorization of construction more than 25 years before the date of enactment of this Act; and

(II) an amount that is less than 33 percent of the estimated total costs of the project (excluding costs of preconstruction engineering and design) has been obligated

for the project as of the date of enactment of this Act.

(D) PROJECT- The term `project' means a water resources project, or a separable element of a water resources project, that is authorized by law for funding from--

(i) the Construction, General, appropriations account; or

(ii) the construction portion of the Flood Control, Mississippi River and Tributaries, appropriations account.

(2) STUDY-

(A) IN GENERAL- Not later than 1 year 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 study consisting of--

(i) the list described in subparagraph (B); and

(ii) the information described in subparagraph (C).

(B) LIST- The list referred to in subparagraph (A) is a list of all authorized water resources projects--

(i) that have not been commenced; or

(ii) the construction of which has not been completed.

(C) REQUIRED INFORMATION- Each project on the list described in subparagraph (B) shall be accompanied by information on--

(i) the primary purpose of the project;

(ii) the year in which construction of the project was commenced;

(iii) the total estimated cost of the project in current year dollars;

(iv) the benefit-cost ratio of the project, determined based on current discount rates;

(v) the estimated annual benefits and annual costs of the project;

(vi) the remaining additional benefits and the remaining additional costs to complete construction of the project (including the ratio that remaining benefits bear to remaining costs);

(vii)(I) the year during which the most recent major studies of the feasibility and design of the project were completed; and

(II) the year during which the most recent environmental impact statement or environmental assessment for the project was completed;

(viii) the date of the last year for which economic data that was included in the most recent analysis of the feasibility and justification of the project was collected;

(ix) the status of each project as--

(I) reconnaissance, preconstruction engineering and design, or construction; and

(II) active, deferred, or inactive; and

(x) the information described in paragraph (3) for each particular type of project.

(3) INFORMATION FOR PARTICULAR PROJECT TYPE- The study under paragraph (2) shall include--

(A) in the case of a flood damage reduction project--

(i) the extent to which the project reflects national flood damage reduction priorities as established by the Federal Emergency Management Agency;

(ii)(I) the level of flood protection provided; and

(II) to the maximum extent practicable, the extent to which the project is based on projected growth and the basis for each projection of growth; and

(iii) the extent to which the project--

(I) restores natural aquatic ecosystem functions; and

(II) avoids adverse environmental impacts and risk before implementation of mitigation activities;

(B) in the case of a navigation project--

(i)(I) the extent to which the economic benefits of the project are based on existing levels of commercial traffic rather than projected growth in commercial traffic; and

(II) to the maximum extent practicable, the extent to which the project is based on projected growth and the basis for each projection of growth; and

(ii) the extent of the likely environmental benefits of the project, including the extent of--

(I) remediation of contaminated sediments, or reuse of dredged material, to restore aquatic habitat; and

(II) adverse environmental impacts and risks of the project; and

(C) in the case of an environmental restoration project--

(i) the extent to which the project--

(I) restores natural hydrologic processes and the spatial extent of aquatic habitat; and

(II) otherwise produces self-sustaining environmental benefits; and

(ii) the extent to which the project addresses critical national conservation priorities, including preservation and protection of endangered and threatened species or habitat of endangered and threatened species.

(4) MEASUREMENT AND REPORTING-

(A) IN GENERAL- The Secretary shall use objective and quantifiable standards for measuring and reporting the information required to be submitted under paragraph (3).

(B) ALTERNATIVE METHOD OF REPORTING- In any case in which the information required to be submitted under subparagraph (B)(ii) or (C) of paragraph (3) cannot be quantified, the information shall be reported through an objective description of the benefits and impacts of the applicable project.

(5) AVAILABILITY TO THE PUBLIC- The study submitted to Congress under paragraph (2) shall be made available to--

(A) any person on request; and

(B) the public on the Internet.

(b) PROJECT DEAUTHORIZATIONS- Section 1001 of the Water Resources Development Act of 1986 (33 U.S.C. 579a) is amended to read as follows:

`SEC. 1001. PROJECT DEAUTHORIZATIONS.

`(a) DEFINITIONS- In this section:

`(1) CONSTRUCTION OF A PROJECT- The term `construction of a project' means--

`(A) with respect to a flood control project--

`(i) the acquisition of land, an easement, or a right-of-way; or

`(ii) the performance of physical work under a construction contract;

`(B) with respect to an environmental protection and restoration project--

`(i) the acquisition of land, an easement, or a right-of-way primarily to facilitate the restoration of wetland or similar habitat; or

`(ii) the performance of physical work under a construction contract--

`(I) to modify an existing project facility; or

`(II) to construct a new environmental protection or restoration measure;

`(C) with respect to a shore protection project--

`(i) the acquisition of land, an easement, or a right-of-way; or

`(ii) the performance of physical work under a construction contract for a structural or a nonstructural measure; and

`(D) with respect to any project that is not described in subparagraph (A), (B), or (C), the performance of physical work under a construction contract.

`(2) INACTIVE- The term `inactive', with respect to a project, means that--

`(A) the project is not economically justified;

`(B) the project no longer meets current and prospective needs as described in a feasibility report or general reevaluation report;

`(C) the non-Federal interests with respect to the project have not demonstrated willingness or the ability to provide the required non-Federal share; or

`(D)(i) the project most recently received, under an Act of Congress, authorization or reauthorization for construction more than 25 years before the date of enactment of this subparagraph; and

`(ii) an amount that is less than 33 percent of the estimated total costs of the project (excluding costs of preconstruction engineering and design) has been obligated for the project as of the date of enactment of this subparagraph.

`(3) PHYSICAL WORK UNDER A CONSTRUCTION CONTRACT- The term `physical work under a construction contract' does not include any activity relating to--

`(A) project planning;

`(B) engineering and design;

`(C) relocation; or

`(D) the acquisition of land, an easement, or a right-of-way.

`(4) PROJECT- The term `project' means a water resources project, or a separable element of a water resources project, that is authorized by law for funding from--

`(A) the Construction, General, appropriations account; or

`(B) the construction portion of the Flood Control, Mississippi River and Tributaries, appropriations account.

`(b) INACTIVE PROJECTS-

`(1) LIST- Not later than December 31, 2004, and biennially thereafter, the Secretary shall submit to Congress a list of inactive projects.

`(2) DEAUTHORIZATION- An inactive project shall be deauthorized effective beginning 1 year after the date of submission of a list under paragraph (1) that includes the project unless, during that 1-year period, Congress reauthorizes the project in accordance with the Corps of Engineers Modernization and Improvement Act of 2004 and the amendments made by that Act.

`(c) PROJECTS FOR WHICH ACTUAL CONSTRUCTION HAS NOT BEGUN-

`(1) LIST- The Secretary shall annually submit to Congress a list of projects that have been authorized for construction, but for which no actual construction has begun and no Federal funds have been obligated for construction during the 3 consecutive fiscal years preceding the fiscal year in which the list is submitted.

`(2) DEAUTHORIZATION- A project authorized for construction that is not subject to subsection (b) shall be deauthorized effective beginning 5 years after the date of the most recent authorization or reauthorization of the project unless, during that 5-year period, Federal funds are obligated for construction of the project.

`(d) PROJECTS FOR WHICH CONSTRUCTION HAS BEEN SUSPENDED-

`(1) LIST- The Secretary shall annually submit to Congress a list of projects--

`(A) that have been authorized for construction; and

`(B) for which no Federal funds have been obligated for construction during the 2 consecutive fiscal years preceding the date of submission of the list.

`(2) DEAUTHORIZATION- A project that is not subject to subsection (b) but for which Federal funds have been obligated for construction of the project shall be deauthorized if Federal funds appropriated specifically for construction of the project, as indicated in an Act of Congress or in accompanying legislative report language, are not obligated for construction of the project during the period of 3 fiscal years following the last fiscal year in which Federal funds were obligated for construction of the project.

`(e) COMPLETED PROJECTS- Subsections (b), (c), and (d) shall not apply--

`(1) in the case of a beach nourishment project, after initial construction of the project has been completed; or

`(2) in the case of any other project, after construction of the project has been completed.

`(f) CONGRESSIONAL NOTIFICATIONS- On submission of a list under subsection (b), (c), or (d), the Secretary shall notify each Senator in whose State, and each Member of the House of Representatives in whose district, a project on the list is or would be located.

`(g) FINAL DEAUTHORIZATION LIST- The Secretary shall annually publish in the Federal Register a list of all projects deauthorized under subsections (b), (c), and (d).'.

(c) WATERWAYS-

(1) REPORT BY ACADEMY-

(A) IN GENERAL- Not later than 1 year after the date of enactment of this Act, the Secretary shall enter into a contract with the Academy to prepare a report on waterways in the Inland Waterways System.

(B) CONTENTS OF REPORT- The report shall--

(i) review the Inland Waterways System;

(ii) provide data on the commercial traffic being carried by each waterway in the System as of the date of the report;

(iii) provide an analysis of the extent to which prior projections of the commercial traffic carried by each waterway in the System were accurate; and

(iv) based on the information provided under clauses (ii) and (iii)--

(I) identify underused waterways in the System;

(II) propose new economic and environmental uses for underused waterways;

(III) describe statutory and administrative reforms that are needed to ease the transition from the current authorized uses of the System to new economic and environmental uses of the System; and

(IV) recommend which waterways in the System should be decommissioned.

(2) DECOMMISSIONING MECHANISM FOR UNDERUSED WATERWAYS- Not later than 1 year after the date of enactment of this Act, the Secretary shall by regulation establish a mechanism for the decommissioning of waterways that--

(A) are no longer economically justified, based on commercial traffic and current discount rates; or

(B) are no longer in the national interest.

SEC. 302. PRIMARY MISSION FOCUS.

Any water resources project that does not have as a primary project purpose 1 of the primary Corps missions of environmental protection, flood control, or navigation and that, as of the date of enactment of this section, has no appropriated construction funding, is deauthorized.

END