I

106TH CONGRESS

2D SESSION H. R. 4879

To reform the Army Corps of Engineers.

IN THE HOUSE OF REPRESENTATIVES

JULY 18, 2000

Mr. KIND (for himself, Mr. BLUMENAUER, and Ms. BALDWIN) introduced the

following bill; which was referred to the Committee on Transportation

and Infrastructure

A BILL

To reform the Army Corps of Engineers.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Corps of Engineers Reform Act of 2000’’.

6 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definition of Secretary.

TITLE I—PROJECT PLANNING

Sec. 101. Independent review.

Sec. 102. Stakeholder involvement.

Sec. 103. Monitoring.

Sec. 104. Recommendations.

Sec. 105. Principles and guidelines.
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Sec. 106. Environmental Advisory Board.

TITLE II—MITIGATION

Sec. 201. Full mitigation.

Sec. 202. Concurrent mitigation.

1 SEC. 2. FINDINGS AND PURPOSES.

2 (a) FINDINGS.—Congress finds the following:

3 (1) The Army Corps of Engineers is the pri4 mary Federal agency responsible for developing and

5 managing the Nation’s harbors, waterways, shore6 lines, and water resources.

7 (2) Scarce Federal resources require more effi8 cient use of Corps of Engineers funding and greater

9 oversight of Corps of Engineers analyses.

10 (3) Demand for recreation, clean water, and

11 healthy wildlife habitat must be reflected in the

12 Corps of Engineers project planning process.

13 (4) The social and environmental impacts of

14 dams, levees, shoreline stabilization structures, and

15 other projects must be adequately mitigated.

16 (5) Affected interests must play a larger role in

17 Corps of Engineers project development.

18 (b) PURPOSES.—The purposes of this Act are as fol19 lows:

20 (1) To ensure that the Nation’s water resources

21 investments are economically justified and enhance

22 the environment.
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1 (2) To provide independent review of Corps of

2 Engineers feasibility studies.

3 (3) To ensure that mitigation for Corps of En4 gineers projects is successful and cost-effective.

5 (4) To enhance the involvement of affected in6 terests in Corps of Engineers feasibility studies.

7 (5) To revise Corps of Engineers planning prin8 ciples to meet the economic and environmental needs

9 of riverside and coastal communities.

10 SEC. 3. DEFINITION OF SECRETARY.

11 In this Act, the term ‘‘Secretary’’ means the Sec12 retary of the Army.

13 TITLE I—PROJECT PLANNING

14 SEC. 101. INDEPENDENT REVIEW.

15 Title IX of the Water Resources Development Act of

16 1986 (100 Stat. 4183 et seq.) is amended by adding at

17 the end the following:

18 ‘‘SEC. 952. INDEPENDENT REVIEW.

19 ‘‘(a) PROJECTS SUBJECT TO INDEPENDENT RE20 VIEW.—The Secretary shall ensure that feasibility reports

21 for the following water resources projects are subject to

22 review by an independent panel of experts established

23 under this section:

24 ‘‘(1) Projects with an estimated total cost of

25 more than $25,000,000, including mitigation costs.
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1 ‘‘(2) Projects that are controversial, as de2 scribed in subsection (f).

3 ‘‘(b) OFFICE OF INDEPENDENT REVIEW.—

4 ‘‘(1) ESTABLISHMENT.—There is established in

5 the Corps of Engineers an Office of Independent Re6 view (in this section referred to as the ‘Office’).

7 ‘‘(2) DIRECTOR.—

8 ‘‘(A) APPOINTMENT.—The head of the Of9 fice shall be the Director of the Office of Inde10 pendent Review (in this section referred to as

11 the ‘Director’), who shall be appointed by the

12 Secretary for a term of 3 years.

13 ‘‘(B) QUALIFICATIONS.—The Secretary

14 shall select the Director from among individuals

15 who are distinguished scholars.

16 ‘‘(C) TERMS.—An individual may not serve

17 for more than 1 term as the Director.

18 ‘‘(3) DUTIES.—The Director shall establish a

19 panel of experts to review each project subject to re20 view under subsection (a).

21 ‘‘(c) ESTABLISHMENT OF PANELS.—

22 ‘‘(1) MEMBERSHIP.—A panel of experts estab23 lished by the Director for a project shall be com24 posed of not less than 5 and not more than 9 inde25 pendent experts who represent a balance of areas of
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1 expertise, including biologists, engineers, and econo2 mists.

3 ‘‘(2) LIMITATION ON APPOINTMENTS.—The Di4 rector shall not appoint an individual to serve on a

5 panel of experts for a project if the individual has

6 a financial or close professional association with any

7 organization or group with a strong financial or or8 ganizational interest in the project.

9 ‘‘(3) CONSULTATION.—The Director shall con10 sult with the National Academy of Sciences in devel11 oping lists of individuals to serve on panels of ex12 perts under this section.

13 ‘‘(4) COMPENSATION.—An individual serving on

14 a panel of experts under this section shall be com15 pensated at a rate of pay to be determined by the

16 Secretary.

17 ‘‘(5) TRAVEL EXPENSES.—An individual serv18 ing on a panel of experts under this section shall re19 ceive travel expenses, including per diem in lieu of

20 subsistence, in accordance with sections 5702 and

21 5703 of title 5, United States Code.

22 ‘‘(d) DUTIES OF PANELS.—A panel of experts estab23 lished for a project under this section shall—
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1 ‘‘(1) review the feasibility report prepared for

2 the project after the identification of a preferred al3 ternative;

4 ‘‘(2) receive written and oral comments of a

5 technical nature concerning the project from the

6 public; and

7 ‘‘(3) submit to the Secretary a report con8 taining the panel’s economic, engineering, and envi9 ronmental analyses of the project, including the pan10 el’s conclusions on the feasibility report, with par11 ticular emphasis on areas of public controversy.

12 ‘‘(e) DURATION OF PROJECT REVIEWS.—A panel of

13 experts shall complete its review of a project under this

14 section not later than 180 days after the date of establish15 ment of the panel.

16 ‘‘(f) CONTROVERSIAL PROJECTS.—For purposes of

17 subsection (a), a project shall be considered to be a con18 troversial project if—

19 ‘‘(1) the Secretary determines that the project

20 is subject to a substantial degree of public con21 troversy;

22 ‘‘(2) the affected State objects to the project; or

23 ‘‘(3) pursuant to the Fish and Wildlife Coordi24 nation Act (16 U.S.C. 661 et seq.), the United

25 States Fish and Wildlife Service determines that the
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1 project is likely to have a significant adverse effect

2 on fish and wildlife after taking into account any

3 proposed mitigation plan.

4 ‘‘(g) RECOMMENDATIONS OF PANEL.—After receiv5 ing a report on a project from a panel of experts under

6 this section, the Secretary shall—

7 ‘‘(1) consider any recommendations contained

8 in the report;

9 ‘‘(2) make the report available for public re10 view; and

11 ‘‘(3) include a copy of the report in any report

12 transmitted to Congress concerning the project.

13 ‘‘(h) COSTS.—The cost of conducting a review of a

14 project under this section shall not exceed $250,000 and

15 shall be considered as part of the total cost of the project.

16 The Secretary may waive the $250,000 limitation in the

17 preceding sentence for good cause.’’.

18 SEC. 102. STAKEHOLDER INVOLVEMENT.

19 (a) IN GENERAL.—Section 905 of the Water Re20 sources Development Act of 1986 (33 U.S.C. 2282) is

21 amended by adding at the end the following:

22 ‘‘(e) STAKEHOLDER ADVISORY GROUP.—

23 ‘‘(1) IN GENERAL.—The Secretary shall estab24 lish a stakeholder advisory group to assist the Sec25 retary with the development of each feasibility study
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1 under subsection (a) and to enhance public partici2 pation in the feasibility study.

3 ‘‘(2) MEMBERSHIP.—The membership of the

4 advisory group shall include balanced representation

5 of social, economic, and environmental interest

6 groups.

7 ‘‘(3) APPLICABILITY OF FEDERAL ADVISORY

8 COMMITTEE ACT.—The Federal Advisory Com9 mittee Act (15 U.S.C. App.) shall apply to the advi10 sory group.’’.

11 SEC. 103. MONITORING.

12 Title IX of the Water Resources Development Act of

13 1986 (100 Stat. 4183 et seq.) is further amended by add14 ing at the end the following:

15 ‘‘SEC. 953. MONITORING.

16 ‘‘The Secretary shall monitor the economic and envi17 ronmental results (including the results of mitigation) of

18 each water resources project with an estimated total cost

19 of more than $25,000,000, for a period of not less than

20 15 years, and shall provide annual reports to Congress on

21 the performance of the project. The cost of such moni22 toring shall be a Federal expense.’’.
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1 SEC. 104. RECOMMENDATIONS.

2 Title IX of the Water Resources Development Act of

3 1986 (100 Stat. 4183 et seq.) is further amended by add4 ing at the end the following:

5 ‘‘SEC. 954. RECOMMENDATIONS.

6 ‘‘The Secretary shall not recommend an initial rec7 ommended plan for a proposed project until all project

8 costs, including mitigation costs, have been calculated.’’.

9 SEC. 105. PRINCIPLES AND GUIDELINES.

10 Section 209 of the Flood Control Act of 1970 (42

11 U.S.C. 1962–2) is amended to read as follows:

12 ‘‘SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

13 ‘‘(a) IN GENERAL.—It is the intent of Congress that

14 economic development and environmental protection and

15 restoration be co-equal goals of water resources planning

16 and development.

17 ‘‘(b) REVISION OF PRINCIPLES AND GUIDELINES.—

18 The Secretary shall revise the principles and guidelines for

19 flood control projects—

20 ‘‘(1) to incorporate—

21 ‘‘(A) a national ecological restoration ac22 count;

23 ‘‘(B) a national economic development ac24 count; and

25 ‘‘(C) an optimum trade-off plan to maxi26 mize the benefits of the accounts;
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1 ‘‘(2) to incorporate new techniques in risk and

2 uncertainty analysis;

3 ‘‘(3) to eliminate biases and disincentives for

4 nonstructural flood damage reduction projects;

5 ‘‘(4) to incorporate new analytical techniques;

6 and

7 ‘‘(5) to encourage, to the maximum extent prac8 ticable, the restoration of aquatic ecosystems.

9 ‘‘(c) UPDATE OF GUIDANCE.—The Secretary shall

10 update the Guidance for Conducting Civil Works Planning

11 Studies (ER 1105–2–100) to comply with this section.’’.

12 SEC. 106. ENVIRONMENTAL ADVISORY BOARD.

13 Section 905(b) of the Water Resources Development

14 Act of 1986 (33 U.S.C. 2282(b)) is amended—

15 (1) by striking ‘‘(b) Before initiating’’ and in16 serting the following:

17 ‘‘(b) RECONNAISSANCE STUDIES.—

18 ‘‘(1) IN GENERAL.—Before initiating’’;

19 (2) by adding at the end the following:

20 ‘‘(2) REVIEW BY ENVIRONMENTAL ADVISORY

21 BOARD.—The Environmental Advisory Board of the

22 Corps of Engineers shall review all reconnaissance

23 studies performed under this subsection to assess

24 whether a proposed project is likely to have environ25 mental impacts that cannot be successfully or cost-
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1 effectively mitigated and shall make recommenda2 tions to the Secretary based on the review. The Sec3 retary shall consider the recommendations of the

4 Environmental Advisory Board on a project before

5 recommending that a feasibility study be conducted

6 for the project based on a reconnaissance report.’’;

7 and

8 (3) by aligning the remainder of the text of

9 paragraph (1) (as designated by paragraph (1) of

10 this subsection) with paragraph (2) (as added by

11 paragraph (2) of this subsection).

12 TITLE II—MITIGATION

13 SEC. 201. FULL MITIGATION.

14 Section 906(d) of the Water Resources Development

15 Act of 1986 (33 U.S.C. 2283(a)) is amended—

16 (1) by striking ‘‘(d) After the date’’ and insert17 ing the following:

18 ‘‘(d) MITIGATION PLANS AS PART OF PROJECT PRO19 POSALS.—

20 ‘‘(1) IN GENERAL.—After the date’’;

21 (2) in the first sentence of paragraph (1) (as so

22 designated) by inserting ‘‘fully’’ before ‘‘mitigate’’;

23 (3) by adding at the end the following:

24 ‘‘(2) STANDARDS FOR MITIGATION.—To miti25 gate losses to fish and wildlife resulting from a
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1 water resources project, the Secretary shall meet the

2 highest standards typically required of private par3 ties under related Federal programs and shall, at a

4 minimum, acquire and restore an acre of habitat to

5 replace each acre of habitat negatively impacted by

6 the project. If the project negatively impact re7 sources other than aquatic and terrestrial habitat,

8 the Secretary shall take steps to ensure that im9 pacted resources, such as fish killed by vessels, are

10 replaced on at least a one-to-one basis.

11 ‘‘(3) DESIGN OF MITIGATION PROJECTS.—The

12 Secretary shall design mitigation projects to reflect

13 contemporary understanding of the importance of

14 spatial distribution of habitat and the natural hy15 drology of aquatic ecosystems, and shall fully miti16 gate the adverse hydrologic impacts of projects.

17 ‘‘(4) RECOMMENDATION OF PROJECTS.—The

18 Secretary shall not recommend a water resources

19 project alternative or choose a project alternative in

20 any final record of decision, environmental impact

21 statement, or environmental assessment completed

22 after the date of enactment of this paragraph unless

23 the Secretary determines that the mitigation plan

24 for the alternative will cost-effectively and success-
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1 fully mitigate the adverse impacts of the project on

2 aquatic resources and fish and wildlife.

3 ‘‘(5) COMPLETION OF MITIGATION BEFORE

4 CONSTRUCTION OF NEW PROJECTS.—The Secretary

5 shall complete all planned mitigation in a particular

6 watershed before constructing any new water re7 sources project in that watershed.’’; and

8 (4) by aligning the remainder of the text of

9 paragraph (1) (as designated by paragraph (1) of

10 this subsection) with paragraphs (2) through (5) (as

11 added by paragraph (3) of this subsection).

12 SEC. 202. CONCURRENT MITIGATION.

13 Section 906(a)(1) of the Water Resources Develop14 ment Act of 1986 (33 U.S.C. 2283(a)(1)) is amended by

15 adding at the end the following: ‘‘To ensure concurrent

16 mitigation, the Secretary shall complete 50 percent of re17 quired mitigation before beginning project construction,

18 and shall use a proportionate amount of project construc19 tion funding to complete the required mitigation.’’.

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