To revise certain policies of the Army Corps of Engineers for the purpose of improving the Corps' community relations, and for other purposes.

June 27, 2001

Mr. TANCREDO (for himself, Mr. LARGENT, Mr. BARTLETT of Maryland, Mr. GILCHREST, Mr. TERRY, and Mr. HEFLEY) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure

To revise certain policies of the Army Corps of Engineers for the purpose of improving the Corps' community relations, 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.

This Act may be cited as the `Army Corps of Engineers Reform and Community Relations Improvement Act of 2001'.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds the following:

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

(2) The United States has a backlog of more than $54,000,000,000 for water development projects, $38,000,000,000 of which are for projects that have begun construction or preconstruction, engineering, and design but not yet been completed.

(3) The Corps' civil works program budget for construction of new water development projects in recent years and in the foreseeable future has been approximately $1,500,000,000.

(4) Due to the large disparity between budget authority for authorized water resources projects and the actual annual funding levels, the current method of developing project construction schedules based upon optimum funding levels is unrealistic and does not reflect the likely true costs and benefits of constructing most Corps' projects.

(5) At the current rate of funding for the civil works construction program, it would take more than 50 years to eliminate the current backlog, not accounting for the water development needs of the next 50 years.

(6) It is in the national economic interest for the Corps to manage the Nation's harbors, waterways, shorelines, and water resources in the most efficient manner practically feasible and with the highest level of fiscal discipline.

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

(1) To restore communication and cooperation between the Army Corps of Engineers and State and local governments.

(2) To improve relations between the Army Corps of Engineers and communities neighboring its project sites.

(3) To ensure that the Nation's Federal water resources investments are economically justified.

(4) To reduce the backlog of authorized projects.

(5) To establish new criteria for projects.

(6) To modernize the calculation of costs and benefits by the Army Corps of Engineers.

(7) To prioritize Army Corps of Engineers construction spending.

(8) To share the costs of water resources investments with project beneficiaries.

SEC. 3. COMMUNITY RELATIONS IMPROVEMENT PLAN.

Not later than 1 year after the date of enactment of this Act, the Secretary of the Army, acting through the Chief of Engineers (in this Act referred to as the `Secretary') shall prepare and transmit to Congress a report that includes the following:

(1) A list of all federally owned lands under the jurisdiction of the Secretary.

(2) A list of such lands that no longer serve a project purpose or that possess no demonstrated compelling program or project need.

(3) A plan regarding cost-sharing for rehabilitation, modification, operation, and maintenance of recreation facilities at water resources projects under the jurisdiction of the Secretary that are leased by non-Federal interests.

SEC. 4. PUBLIC HEARINGS.

(a) IN GENERAL- Before the Secretary or any other public or private entity commences any work at a water resources project under the jurisdiction of the Secretary, the Secretary shall hold in the vicinity of the project a public hearing for the purpose of receiving public comments on the proposed work and the project.

(b) HEARING AS ADDITIONAL REQUIREMENT- A hearing under this section shall be in addition to any hearing otherwise required for compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or any other law.

(c) INCLUSION OF PROJECT STUDIES- The comments received in a public hearing held under this section with respect to a water resources project shall be included in any feasibility report, general reevaluation study, environmental impact statement, or other decision document recommending major construction, rehabilitation, project modification, or major and substantial change in operating and management practices prepared for the project.

SEC. 5. INDEPENDENT REVIEW.

(a) PROJECTS SUBJECT TO INDEPENDENT REVIEW-

(1) IN GENERAL- The Secretary shall ensure that feasibility reports, 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 significant adverse impacts on fish or wildlife after implementation of proposed mitigation plans; or

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

(3) CONTROVERSIAL PROJECTS-

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

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

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

(B) WRITTEN REQUESTS- The Secretary shall determine whether or not a project is controversial within 30 days of the date of receipt of a written request of an interested party or on the initiative of the Secretary.

(4) AFFECTED STATE DEFINED- In paragraph (2)(B), the term `affected State' as used with respect to a project means a State or a part thereof 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) DIRECTOR OF INDEPENDENT REVIEW-

(1) APPOINTMENT- The Inspector General of the Department of Army shall appoint in the Office of the Inspector General a Director of Independent Review (in this section referred to as the `Director'). The term of a Director appointed under this subsection shall be 3 years.

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

(3) LIMITATION ON APPOINTMENTS- The Inspector General 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 a water resources project that, on the date of appointment, is under construction, in the preconstruction, engineering, and design phase, or under feasibility or reconnaissance study by the Army Corps of Engineers.

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

(5) 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) 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 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 Inspector General.

(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, as authorized by law for persons serving intermittently in Government service under subchapter I of chapter 57 of title 5, United States Code, while away from their homes and places of business in the performance of services for the panel of experts.

(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 and scientific models used by the Secretary in reviewing the project to ensure that--

(A) multiple methods of economic analysis have been used, and the best available scientific methods of analysis have been used; and

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

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

(4) 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 feasibility study, general reevaluation study, or environmental impact statement with particular emphasis on areas of public controversy; and

(5) within 30 days after the issuance of a final feasibility study, final general reevaluation study, or final environmental impact statement, but prior to the entry of a record of decision, the independent review panel shall submit to the Secretary a brief report stating its views on the extent to which the final analysis adequately addresses issues or concerns raised by the panel's earlier evaluation.

(e) DURATION OF PROJECT REVIEWS- Not later than 180 days after the date of establishment of a panel of experts for a project under this section, the panel shall complete its review of the project and all of its other duties with respect to the project (other than duties described in 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. Recommendations and findings that are inconsistent with recommendations and findings of an independent review panel shall not be entitled to deference in a judicial proceeding.

(2) PUBLIC REVIEW; TRANSMITTAL TO CONGRESS- After receiving a report on a project from a panel of experts under this section (including a report under subsection (d)(5)), 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 6; and

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

(g) COSTS-

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

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

(B) one-half of one percent of the total real cost in current year dollars of the project if such total real cost is $50,000,000 or more.

(2) TREATMENT- For purposes of paragraph (1), the cost of conducting an independent review under this section shall be treated as part of the total cost of the project.

(3) WAIVER OF LIMIT- The Secretary may waive a limitation set forth in paragraph (1) if the Secretary determines that the waiver is 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. 6. PUBLIC ACCESS TO INFORMATION AND DATA.

(a) IN GENERAL- The Secretary shall ensure that all information and data related to the analysis of a water resources project by the Corps of Engineers, whether in final or draft form and including all supporting data and information that the Corps of Engineers has considered in its analysis, is made available to any person upon request and, to the maximum extent practicable, 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 has 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 or entity that supplied the information to the Corps of Engineers.

(2) CRITERIA FOR TRADE SECRETS- For purposes of this subsection, the Secretary shall consider information to be a trade secret only if--

(A) the person or entity that supplied the information to the Corps of Engineers has not disclosed the information to any other person or entity, other than--

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

(ii) an employee of such person or entity; or

(iii) a person or entity that is bound by a confidentiality agreement, and the person or entity that supplied the information has taken reasonable measures to protect the confidentiality of such 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 the person or entity that supplied the information.

(d) REPORT ON THE WATER RESOURCES CONSTRUCTION BACKLOG-

(1) IN GENERAL- Not later than 1 year after enactment of this Act, the Secretary shall transmit to Congress a list of all water resources projects in the construction backlog, consisting of the uncompleted portion of any project authorized by law for funding from the Construction, General appropriations account or the construction portion of the Flood Control, Mississippi River and Tributaries appropriations account. Each project on this list shall be accompanied by information on--

(A) the total real cost in current year dollars of the project and the fully funded total cost of the project in current year dollars;

(B) the benefit-to-cost ratio of the project;

(C) the remaining additional benefits and the remaining additional costs to complete construction of the project and the ratio of remaining benefits to remaining costs;

(D) the year the last major studies of the project's feasibility and designs were completed;

(E) the date of the last year of economic data that was included in the latest analysis of the project's feasibility and justification;

(F) the status of each project as either--

(i) reconnaissance;

(ii) preconstruction, engineering, and design;

(iii) construction; or

(iv) not funded and active, deferred, or inactive; and

(G) the information described in paragraph (2) for each particular type of project.

(2) INFORMATION FOR PARTICULAR PROJECT TYPE- The information transmitted under paragraph (1) for each of the following project types shall include the following:

(A) For 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) the level of flood protection provided and the relative amount of protection provided to and benefits derived from protecting urban property and agricultural property; and

(iii) the extent to which the project restores natural aquatic ecosystem functions and avoids adverse environmental impacts and risk.

(B) For a navigation project--

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

(II) the level of certainty in a growth projection if the justification for the project is based on such projected growth; and

(ii) the extent of the project's likely environmental benefits, including extent of remediation of contaminated sediments or reuse of dredge material to restore aquatic

habitat, and extent of the project's adverse environmental impacts and risk.

(C) For an environmental restoration project--

(i) the cost effectiveness of the project in achieving environmental results;

(ii) the extent to which the project restores natural hydrologic processes and the spatial extent of aquatic habitat and otherwise produces self-sustaining environmental benefits; and

(iii) the extent to which the project addresses critical national conservation priorities, including preservation and enhancement of endangered and threatened species.

(3) MEASUREMENT AND REPORTING- The Secretary shall use objective and quantifiable standards for measuring and reporting the information required in paragraph (2). In any case in which such information cannot feasibly be quantified, the required information shall be reported through an objective description of the project's benefits and impacts.

(4) AVAILABILITY TO THE PUBLIC AND UPDATES- The list and any information transmitted to Congress under paragraphs (1) and (2) shall be made available to any person upon request and to the public on the Internet. The list shall also be updated and retransmitted to Congress annually.

(5) DEFINITIONS- In this subsection, the following definitions apply:

(A) ACTIVE- The term `active', as used with respect to a project, means the project has received preconstruction, engineering, and design or construction funding, is economically justified, and is supported by the non-Federal sponsor.

(B) DEFERRED- The term `deferred', as used with respect to a project, means the project has doubtful economic justification, requires restudy to determine its economic feasibility, or is a project for which the non-Federal sponsor is currently unable to provide required cooperation.

(C) INACTIVE- The term `inactive', as used with respect to a project, means the project is not economically justified because costs outweigh projected benefits, no longer meets current and prospective needs, or is not actively supported by the non-Federal sponsor.

SEC. 7. MODERN PROJECT CRITERIA.

(a) NEGATIVE BENEFITS-

(1) INCORPORATION- When evaluating a civil works project's national economic development benefits, the Secretary shall incorporate into the benefit-to-cost analysis for the project the negative benefits of the project activities under study, including any negative benefits of such activities on any federally managed lands or infrastructure and on private lands enrolled in the conservation reserve program or wetlands reserve program.

(2) DEFINITION- In this subsection, the term `negative benefits' includes net adverse impacts to flood control, navigation, recreation (including, but not limited to, hunting, fishing, tourism, boating, and wildlife watching), water supply, irrigation, hydropower, and any other public benefit derived from a Federal waterway or adjacent lands.

(b) EFFICIENT MANAGEMENT AND OPERATING PRACTICES-

(1) IN GENERAL- The Secretary shall not include in the benefits base for justifying a water resources project any benefits that could reasonably be achieved through better and more efficient management or operating practices by a Federal agency or the project beneficiaries.

(2) EVALUATIONS- In any feasibility report, general reevaluation study, environmental impact statement, or other decision document recommending major construction, rehabilitation, or project modification, the Secretary shall include a management and operating practices evaluation that takes into consideration the requirements of paragraph (1).

(c) LIMITATION UPON COMPETITION WITH THE PRIVATE SECTOR-

(1) IN GENERAL- Any civil works project the primary benefits of which are not for flood damage reduction, navigation, or environmental restoration, shall not be recommended for construction by the Secretary if--

(A) there exist corporations or other nongovernmental entities in the United States with significant relevant experience in the particular project activity under consideration by the Secretary; or

(B) similar project activities have been undertaken by nongovernmental entities within the last 10 years.

(2) EVALUATIONS- In any feasibility report, general reevaluation study, environmental impact statement or other decision document recommending major construction, rehabilitation, or modification of a civil works project, the Secretary shall include a private sector competition evaluation that takes into consideration the requirements of paragraph (1).

(d) RECOMMENDATION OF PROJECTS- Beginning in fiscal year 2003, in the case of a civil works project that is subject to a benefit-cost analysis (including any project that has been contingently authorized subject to a favorable report from the Chief of Engineers), the Secretary shall only recommend the project for authorization by Congress, and shall only choose the project as a recommended alternative in any record of decision or environmental impact statement if the project, in addition to meeting any other criteria required by law, has projected benefits that are at least 1.5 times as great as the project's estimated total cost.

(e) REALISTIC CONSTRUCTION SCHEDULING- Not later than 1 year after the date of enactment of this Act, the Secretary shall revise, in consultation with the National Academy of Sciences, the principles and guidelines of the Corps of Engineers to--

(1) direct the Corps to give preference in economic analyses to project alternatives that maximize the rate of return of national economic development benefits to investment over alternatives that maximize net national economic development benefits;

(2) provide guidance on how to implement paragraph (1); and

(3) require the Corps to document and report to the Secretary incremental components of project alternatives and their effect on the overall benefits and costs of a project.

SEC. 8. REGIONAL IMPACTS OF PORT AND HARBOR PROJECTS.

(a) IN GENERAL- It is the intent of Congress that federally funded port maintenance and expansion projects maximize national economic development goals while minimizing adverse regional economic and environmental impacts.

(b) PRINCIPLES AND GUIDELINES- Not later than 1 year after the date of enactment of this Act, the Secretary shall revise, in consultation with the National Academy of Sciences, the principles and guidelines of the Corps of the Engineers to provide that feasibility studies, general reevaluation studies, and environmental impact statements for a port or harbor project give detailed and thorough consideration to the project's--

(1) economic impacts upon other United States ports in the same region; and

(2) cumulative environmental impacts within the region.

(c) REGIONS- The regions referred to in subsection (b) are the North Atlantic, South Atlantic, Great Lakes, Gulf of Mexico, South Pacific, and North Pacific regions of the United States.

SEC. 9. REDUCTION OF THE CONSTRUCTION BACKLOG.

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) INACTIVE PROJECTS-

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

`(2) DEAUTHORIZATION- Any inactive project shall not be authorized after the last day of the 1-year period beginning on the date of transmittal of the list under paragraph (1) that includes such project unless Congress takes action to reauthorize the project or separable element during such 1-year period.

`(3) DEFINITION- In this subsection, the term `inactive project' means a project or a separate element of a project that is not economically justified because costs outweigh projected benefits, no longer meets current and prospective needs, or is not actively supported by the non-Federal sponsor.

`(b) PROJECTS NEVER UNDER CONSTRUCTION-

`(1) LIST- The Secretary shall transmit annually to Congress a list of projects and separable elements of projects not subject to subsection (a) that have been authorized for construction, but for which no funds have been obligated for construction of the project or separable element during the 4 consecutive fiscal years preceding the transmittal of such list.

`(2) DEAUTHORIZATION- Any water resources project authorized for construction and any separable element of such a project not subject to subsection (a) shall not be authorized after the last day of the 7-year period beginning on the date of the project or separable element's most recent authorization or reauthorization unless during such period funds are obligated for construction of the project or separable element.

`(c) PROJECTS WHERE CONSTRUCTION HAS BEEN SUSPENDED-

`(1) LIST- The Secretary shall transmit annually to Congress a list of projects and separable elements of projects not subject to subsection (a) that have been authorized for construction, and for which funds have been obligated for construction of the project or separable element but not during the 2 consecutive fiscal years preceding the date of transmittal of such list.

`(2) DEAUTHORIZATION- Any water resources project and any separable element of such a project not subject to subsection (a) for which funds have been obligated for construction of the project or separable element shall not be authorized if funds appropriated specifically for construction of the project or separable element (either in statute or in the accompanying legislative report language) are not obligated for construction of the project or separable element during any 5 consecutive fiscal years subsequent to the last fiscal year in which funds were obligated for construction of the project.

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

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

`(f) DEFINITIONS-

`(1) CONSTRUCTION OF THE PROJECT OR SEPARABLE ELEMENT- In this section, the term `construction of a project or separable element of a project' means--

`(A) as used with respect to a nonstructural flood control project, the acquisition of lands, easements, and rights-of-way primarily to relocate structures or the performance of physical work under a construction contract for other nonstructural measures;

`(B) as used with respect to an environmental protection and restoration project, the acquisition of lands, easements, and rights-of-way primarily to facilitate the restoration of wetlands or similar habitats or the performance of physical work under a construction contract to modify existing project facilities or to construct new environmental protection and restoration measures; and

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

`(2) PHYSICAL WORK UNDER A CONSTRUCTION CONTRACT- As used in this subsection, in no case shall the term `physical work under a construction contract' include activities related to project planning, engineering and design, relocation, or the acquisition of lands, easements, and rights-of-way.'.

SEC. 10. COST-SHARING.

(a) FLOOD DAMAGE REDUCTION- Subsections (a) and (b) of section 103 of the Water Resources Development Act of 1986 (33 U.S.C. 2213(a) and (b)) are each amended by striking `35' and inserting `50'.

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

(1) by striking `One-half of the costs of construction' and inserting `Forty-five percent of the costs of construction'; and

(2) by striking `One-half of such costs shall be paid only from amounts appropriated from the Inland Waterways Trust Fund.' and inserting `Forty-five percent of such costs shall be paid only from amounts appropriated from the Inland Waterways Trust Fund. Ten percent of such costs shall be paid by non-Federal cost-sharing partners and or the affected States.'.

(c) INLAND WATERWAYS OPERATIONS AND MAINTENANCE- Section 102(b) of the Water Resources Development Act of 1986 (33 U.S.C. 2212(b)) is amended by striking `100 percent' and inserting `87.5 percent. 12.5 percent of the costs of operation and maintenance shall be paid only from amounts appropriated from the Inland Waterway Trust Fund.'.

(d) BEACH REPLACEMENT- Section 103(d)(2) of the Water Resources Development Act of 1986 (33 U.S.C. 2213(d)(2)) is amended by striking subparagraph (A) and inserting the following:

`(A) IN GENERAL- In the case of a project authorized for construction after December 31, 1999, or for which a feasibility study is completed after that date, 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.'.

END