II 

113TH CONGRESS 

1ST SESSION S. 566 

To establish a pilot program to evaluate the cost-effectiveness of allowing 

non-Federal interests to carry out certain water infrastructure projects, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 14, 2013 

Mr. DURBIN (for himself and Mr. KIRK) introduced the following bill; which 

was read twice and referred to the Committee on Environment and Public 

Works 

A BILL 

To establish a pilot program to evaluate the cost-effectiveness 

of allowing non-Federal interests to carry out certain 

water infrastructure projects, and for other purposes. 

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. 

4 This Act may be cited as the ‘‘Water Infrastructure 

5 Now Public-Private Partnership Act’’ or the ‘‘WIN P3 

6 Act’’. 

7 SEC. 2. FINDINGS. 

8 Congress finds that— 


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1 (1) investment in water infrastructure is critical 

2 to protecting property and personal safety through 

3 flood, hurricane, and storm damage reduction activi4 ties; 

5 (2) investment in infrastructure on the inland 

6 waterways of the United States is critical to the 

7 economy of the United States through the mainte8 nance of safe, reliable, and efficient navigation for 

9 recreation and the movement of billions of dollars in 

10 goods each year; 

11 (3) fiscal challenges facing Federal, State, local, 

12 and tribal governments require new and innovative 

13 financing structures to continue robust investment 

14 in public water infrastructure; 

15 (4) under existing fiscal restraints and project 

16 delivery processes, large-scale water infrastructure 

17 projects like the lock and dam modernization on the 

18 upper Mississippi River and Illinois River will take 

19 decades to complete, with benefits for the lock mod20 ernization not expected to be realized until 2047; 

21 (5) the Corps of Engineers has an estimated 

22 backlog of more than $60,000,000,000 in out23 standing projects; and 


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1 (6) in developing innovative financing options 

2 for water infrastructure projects, any prior public in3 vestment in projects must be protected. 

4 SEC. 3. WATER INFRASTRUCTURE NOW PILOT PROGRAM. 

5 (a) IN GENERAL.—The Secretary of the Army, acting 

6 through the Chief of Engineers, shall establish a pilot pro7 gram to evaluate the cost-effectiveness and project delivery 

8 efficiency of allowing non-Federal interests to carry out 

9 authorized flood damage reduction, hurricane and storm 

10 damage reduction, and navigation projects. 

11 (b) PURPOSES.—The purposes of the pilot program 

12 are— 

13 (1) to identify project delivery and cost-saving 

14 alternatives that reduce the backlog of authorized 

15 Corps of Engineers projects; 

16 (2) to evaluate the technical, financial, and or17 ganizational efficiencies of a non-Federal interest 

18 carrying out the design, execution, management, and 

19 construction of 1 or more projects; and 

20 (3) to evaluate alternatives for the decentraliza21 tion of the project planning, management, and oper22 ational decision-making processes of the Corps of 

23 Engineers. 

24 (c) ADMINISTRATION.— 


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1 (1) IN GENERAL.—In carrying out the pilot 

2 program, the Secretary shall— 

3 (A) identify a total of not more than 15 

4 flood damage reduction, hurricane and storm 

5 damage reduction, and navigation projects, in6 cluding levees, floodwalls, flood control chan7 nels, water control structures, and navigation 

8 locks and channels, authorized for construction; 

9 (B) notify the Committee on Environment 

10 and Public Works of the Senate and the Com11 mittee on Transportation and Infrastructure of 

12 the House of Representatives upon the identi13 fication of each project under the pilot pro14 gram; 

15 (C) in consultation with the non-Federal 

16 interest, develop a detailed project management 

17 plan for each identified project that outlines the 

18 scope, budget, design, and construction resource 

19 requirements necessary for the non-Federal in20 terest to execute the project, or a separable ele21 ment of the project; 

22 (D) on the request of the non-Federal in23 terest, enter into a project partnership agree24 ment with the non-Federal interest for the non25 Federal interest to provide full project manageVerDate Mar 14 2013 05:05 Mar 20, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S566.IS S566

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1 ment control for construction of the project, or 

2 a separable element of the project, in accord3 ance with plans approved by the Secretary; 

4 (E) following execution of the project part5 nership agreement, transfer to the non-Federal 

6 interest to carry out construction of the project, 

7 or a separable element of the project— 

8 (i) if applicable, the balance of the un9 obligated amounts appropriated for the 

10 project, except that the Secretary shall re11 tain sufficient amounts for the Corps of 

12 Engineers to carry out any responsibilities 

13 of the Corps of Engineers relating to the 

14 project and pilot program; and 

15 (ii) additional amounts, as determined 

16 by the Secretary, from amounts made 

17 available under section 5, except that the 

18 total amount transferred to the non-Fed19 eral interest shall not exceed the estimate 

20 of the Federal share of the cost of con21 struction, including any required design; 

22 and 

23 (F) regularly monitor and audit each 

24 project being constructed by a non-Federal in25 terest under this section to ensure that the conVerDate Mar 14 2013 05:05 Mar 20, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S566.IS S566

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1 struction activities are carried out in compli2 ance with the plans approved by the Secretary 

3 and that the construction costs are reasonable. 

4 (2) RESTRICTIONS.—Of the projects identified 

5 by the Secretary— 

6 (A) not more than 12 projects shall— 

7 (i) have received Federal funds and 

8 experienced delays or missed scheduled 

9 deadlines in the 5 fiscal years prior to the 

10 date of enactment of this Act; or 

11 (ii) for more than 2 consecutive fiscal 

12 years, have an unobligated funding balance 

13 for that project in the Corps of Engineers 

14 construction account; and 

15 (B) not more than 3 projects shall— 

16 (i) have not received Federal funding 

17 for recapitalization and modernization in 

18 the period beginning on the date on which 

19 the project was authorized and ending on 

20 the date of enactment of this Act; and 

21 (ii) be, in the determination of the 

22 Secretary, significant to the national econ23 omy as a result of the impact the project 

24 would have on the national transportation 

25 of goods. 


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1 (3) TECHNICAL ASSISTANCE.—On the request 

2 of a non-Federal interest, the Secretary may provide 

3 technical assistance to the non-Federal interest, if 

4 the non-Federal interest contracts with the Sec5 retary for the technical assistance and compensates 

6 the Secretary for the technical assistance, relating 

7 to— 

8 (A) any study, engineering activity, and 

9 design activity for construction carried out by 

10 the non-Federal interest under this section; and 

11 (B) obtaining any permits necessary for 

12 the project. 

13 (4) WAIVERS.— 

14 (A) IN GENERAL.—For any project in15 cluded in the pilot program, the Secretary may 

16 waive or modify any applicable Federal regula17 tions for that project if the Secretary deter18 mines that such a waiver would provide public 

19 and financial benefits, including expediting 

20 project delivery and enhancing efficiency while 

21 maintaining safety. 

22 (B) NOTIFICATION.—The Secretary shall 

23 notify the Committee on Environment and Pub24 lic Works of the Senate and the Committee on 

25 Transportation and Infrastructure of the House 


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1 of Representatives each time the Secretary 

2 issues a waiver or modification under subpara3 graph (A). 

4 (d) PUBLIC BENEFIT STUDY.— 

5 (1) IN GENERAL.—Before entering into a 

6 project partnership agreement under this section, 

7 the Secretary shall enter into an arrangement with 

8 an independent third party to conduct an assess9 ment of whether, and provide justification that, the 

10 proposed partnership agreement would represent a 

11 better public and financial benefit than a similar 

12 transaction using public funding or financing. 

13 (2) CONTENTS.—The study under paragraph 

14 (1) shall— 

15 (A) be completed by the third party in a 

16 timely manner and in a period of not more than 

17 90 days; 

18 (B) take into consideration any supporting 

19 materials and data submitted by the Secretary, 

20 the nongovernmental party to the proposed 

21 project partnership agreement, and other stake22 holders; and 

23 (C) recommend whether the project part24 nership agreement will be in the public interest 

25 by determining whether the agreement will proVerDate Mar 14 2013 05:05 Mar 20, 2013 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S566.IS S566

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1 vide public and financial benefits, including ex2 pedited project delivery and savings to tax3 payers. 

4 (e) COST SHARE.—Nothing in this Act affects the 

5 cost-sharing requirement applicable on the day before the 

6 date of enactment of this Act to a project carried out 

7 under this Act. 

8 (f) REPORT.— 

9 (1) IN GENERAL.—Not later than 2 years after 

10 the date of enactment of this Act, the Secretary 

11 shall submit to the Committee on Environment and 

12 Public Works of the Senate and the Committee on 

13 Transportation and Infrastructure of the House of 

14 Representatives a report detailing the results of the 

15 pilot program carried out under this section, includ16 ing any recommendations of the Secretary con17 cerning whether the program or any component of 

18 the program should be implemented on a national 

19 basis. 

20 (2) UPDATE.—Not later than 5 years after the 

21 date of enactment of this Act, the Secretary shall 

22 submit to the Committee on Environment and Pub23 lic Works of the Senate and the Committee on 

24 Transportation and Infrastructure of the House of 


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1 Representatives an update of the report described in 

2 paragraph (1). 

3 (g) ADMINISTRATION.—All laws (including regula4 tions) that would apply to the Secretary if the Secretary 

5 were carrying out the project shall apply to a non-Federal 

6 interest carrying out a project under this Act. 

7 (h) TERMINATION OF AUTHORITY.—The authority to 

8 commence a project under this Act terminates on the date 

9 that is 5 years after the date of enactment of this Act. 

10 SEC. 4. APPLICABILITY. 

11 Nothing in this Act authorizes or permits the privat12 ization of any Federal asset. 

13 SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 

14 There are authorized to be appropriated to the Sec15 retary to carry out this Act such sums as are necessary. 

Æ 


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