II

103D CONGRESS

2D SESSION S. 2233

To provide for the conservation and development of water and related resources, to authorize the Secretary of the Army to construct various

projects for improvements to rivers and harbors of the United States,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 23 (legislative day, JUNE 7), 1994

Mr. BAUCUS (by request) introduced the following bill; which was read twice

and referred to the Committee on Environment and Public Works

A BILL

To provide for the conservation and development of water

and related resources, to authorize the Secretary of the

Army to construct various projects for improvements to

rivers and harbors of the United States, 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 SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

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

5 ‘‘Water Resources Development Act of 1994’’.

6 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.
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Sec. 3. Project authorizations.

Sec. 4. Project modifications.

Sec. 5. Cost-sharing of environmental projects.

Sec. 6. Recovery of costs for clean up of hazardous or toxic substances.

Sec. 7. Collaborative research and development.

Sec. 8. National inventory of dams.

Sec. 9. Hydroelectric power project uprating.

Sec. 10. Engineering and environmental innovations of national significance.

Sec. 11. Federal lump-sum payments for federal operation and maintenance

costs.

Sec. 12. Cost-sharing for removal of existing project features.

Sec. 13. Technical advisory committee.

Sec. 14. Technical corrections.

Sec. 15. Project deauthorizations.

Sec. 16. Contract goals for small disadvantaged business concerns and historically black colleges and universities or minority institutions.

Sec. 17. Cost-sharing for dam safety work.

Sec. 18. Revocation of section 211, River and Harbor Act of 1950.

Sec. 19. Research and development in support of Army Civil Works Program.

Sec. 20. Interagency and international support authority.

Sec. 21. Expansion of section 1135 program.

Sec. 22. Regulatory program fund.

1 SEC. 2. DEFINITIONS.

2 For purposes of this Act, the term ‘‘Secretary’’

3 means the Secretary of the Army.

4 SEC. 3. PROJECT AUTHORIZATIONS.

5 [RESERVED]

6 SEC. 4. PROJECT MODIFICATIONS.

7 [RESERVED]

8 SEC. 5. COST-SHARING OF ENVIRONMENTAL PROJECTS.

9 Section 103(c) of the Water Resources Development

10 Act of 1986 (100 Stat. 4085) is amended by adding the

11 following new subsection:

12 ‘‘(7) environmental protection and restoration:

13 25 percent.’’.
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1 SEC. 6. RECOVERY OF COSTS FOR CLEAN UP OF HAZARD2 OUS OR TOXIC SUBSTANCES.

3 Amounts recovered under section 107 of the Com4 prehensive Environmental Response, Compensation, and

5 Liability Act of 1980 (42 U.S.C. 9607) for any response

6 action taken by the Secretary in support of the Army Civil

7 Works Program shall be credited to the appropriate trust

8 fund account from which the cost of such response action

9 has been paid or will be charged.

10 SEC. 7. COLLABORATIVE RESEARCH AND DEVELOPMENT.

11 Section 7 of the Water Resources Development Act

12 of 1988 (102 Stat. 4022) is amended by—

13 (1) redesignating subsections (b), (c) and (d) as

14 paragraphs (1), (2) and (3);

15 (2) deleting subsection (e); and,

16 (3) adding the following new subsection:

17 ‘‘(b) PRE-AGREEMENT TEMPORARY PROTECTION OF

18 TECHNOLOGY.—If the Secretary determines that informa19 tion developed as a result of research and development ac20 tivities conducted by the Corps of Engineers is likely to

21 be subject to a cooperative research and development

22 agreement within 2 years of its development and that such

23 information would be a trade secret or commercial or fi24 nancial information that would be privileged or confiden25 tial if the information had been obtained from a non-Fed26 eral party participating in a cooperative research and de-
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1 velopment agreement under section 12 of the Stevenson2 Wydler Technology Innovation Act of 1980, the Secretary

3 may provide appropriate protection against the dissemina4 tion of such information, including exemption from sub5 chapter II of chapter 5 of title 5, United States Code, until

6 the earlier of the date the Secretary enters into such an

7 agreement with respect to such information or the last day

8 of the 2-year period beginning on the date of such deter9 mination. Any information covered by this subsection

10 which becomes the subject of a cooperative research and

11 development agreement shall be accorded the protection

12 provided under 15 U.S.C. 3710a(c)(7)(B) as if such infor13 mation had been developed under a cooperative research

14 and development agreement.’’.

15 SEC. 8. NATIONAL INVENTORY OF DAMS.

16 Section 13 of Public Law 92–367, 33 U.S.C. 467l,

17 is amended by striking the second sentence in its entirety

18 and replacing it with the following: ‘‘There is authorized

19 to be appropriated up to $500,000 each fiscal year for the

20 purpose of carrying out this section.’’.

21 SEC. 9. HYDROELECTRIC POWER PROJECT UPRATING.

22 (a) In accomplishing the maintenance, rehabilitation,

23 and modernization of hydroelectric power generating fa24 cilities at water resources projects under the justification

25 of the Department of the Army, the Secretary is author-
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1 ized to increase the efficiency of energy production and

2 the capacity of these facilities if, after consulting with

3 other appropriate Federal and State agencies, the Sec4 retary determines that such uprating—

5 (1) is economically justified and financially

6 feasible;

7 (2) will not result in significant adverse effects

8 on the other purposes for which the project is au9 thorized;

10 (3) will not result in significant adverse envi11 ronmental impacts; and

12 (4) will not involve major structural or oper13 ation changes in the project.

14 (b) This section does not affect the authority of the

15 Secretary and the Administrator of the Bonneville Power

16 Administration under section 2406 of the Energy Policy

17 Act of 1992 (16 U.S.C. 839d–1).

18 SEC. 10. ENGINEERING AND ENVIRONMENTAL INNOVA19 TIONS OF NATIONAL SIGNIFICANCE.

20 To encourage innovative and environmentally sound

21 engineering solutions and innovative environmental solu22 tions to problems of national significance, the Secretary

23 may undertake surveys, plans, and studies and prepare re24 ports which may lead to work under existing civil works

25 authorities or to recommendations for authorizations.
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1 There is authorized to be appropriated up to $3,000,000

2 each fiscal year for the purpose of carrying out this sec3 tion. The Secretary may also accept and expend additional

4 funds from other Federal agencies, States, or non-Federal

5 entities for purposes of carrying out this section.

6 SEC. 11. FEDERAL LUMP-SUM PAYMENTS FOR FEDERAL OP7 ERATION AND MAINTENANCE COSTS.

8 (a) At a water resources project where the non-Fed9 eral interest is responsible for performing the operation,

10 maintenance, replacement, and rehabilitation of the

11 project and the Federal Government is responsible for

12 paying a portion of the operation, maintenance, replace13 ment, and rehabilitation costs, the Secretary may provide,

14 under terms and conditions acceptable to the Secretary,

15 a payment of the estimated total Federal share of such

16 costs to the non-Federal interest after completion of con17 struction of the project or a separable element thereof.

18 (b) The amount to be paid shall be equal to the

19 present value of the Federal payments over the life of the

20 project, as estimated by the Government, and shall be

21 computed using an interest rate determined by the Sec22 retary of the Treasury taking into consideration current

23 market yields on outstanding marketable obligations of the

24 United States with maturities comparable to the remain25 ing life of the project.
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1 (c) The Secretary may make a payment under this

2 section only if the non-Federal interest has entered into

3 a binding agreement with the Secretary to perform the

4 operation, maintenance, replacement, and rehabilitation of

5 the project or separable element. The agreement must be

6 in accordance with the requirements of section 221 of the

7 Flood Control Act of 1970 (84 Stat. 1818), and must con8 tain provisions specifying the terms and conditions under

9 which a payment may be made under this section and the

10 rights of, and remedies available to, the Federal Govern11 ment to recover all or a portion of a payment made under

12 this section in the event the non-Federal interest suspends

13 or terminates its performance of operation, maintenance,

14 replacement, and rehabilitation of the project or separable

15 element, or fails to perform such activities in a manner

16 satisfactory to the Secretary.

17 (d) Except as provided in subsection (c), a payment

18 provided to the non-Federal interest under this section

19 shall relieve the Government of any future obligations for

20 paying any of the operation, maintenance, replacement,

21 and rehabilitation costs for the project or separable

22 element.
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1 SEC. 12. COST-SHARING FOR REMOVAL OF EXISTING

2 PROJECT FEATURES.

3 After the date of enactment of this Act, any proposal

4 submitted to the Congress by the Secretary for modifica5 tion of an existing authorized water resources development

6 project by removal of one or more of the project features

7 which would significantly and adversely impact the author8 ized project purposes or outputs shall include the rec9 ommendation that the non-Federal sponsor shall bear 50

10 percent of the cost of any such modification, including the

11 costs of acquiring any additional interests in lands which

12 become necessary for accomplishing the modification.

13 SEC. 13. TECHNICAL ADVISORY COMMITTEE.

14 The Technical Advisory Committee established pur15 suant to section 310(a) of Public Law 101–640 shall no

16 longer exist after the date of enactment of this Act.

17 SEC. 14. TECHNICAL CORRECTIONS.

18 (a) Section 203(b) of the Water Resources Develop19 ment Act of 1992 (106 Stat. 4826) is amended by striking

20 out ‘‘(8662)’’ and inserting in lieu thereof ‘‘(8862)’’.

21 (b) Section 225(c) of the Water Resources Develop22 ment Act of 1992 (106 Stat. 4838) is amended by striking

23 out ‘‘(8662)’’ in the second sentence and inserting in lieu

24 thereof ‘‘(8862)’’.
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1 SEC. 15. PROJECT DEAUTHORIZATIONS.

2 (a) Section 1001 of the Water Resources Develop3 ment Act of 1986 as amended (33 U.S.C. 579a) is further

4 amended by—

5 (1) striking ‘‘10’’ where it appears in the first

6 sentence of paragraph (2) of subsection (b) and re7 placing it with ‘‘5’’;

8 (2) striking the word ‘‘Before’’ at the beginning

9 of the second sentence of paragraph (2) of sub10 section (b) and replacing it with the words ‘‘Upon

11 official’’; and

12 (3) inserting the words ‘‘planning, designing,

13 or’’ immediately before the word ‘‘construction’’ in

14 the last sentence of paragraph (2) of subsection (b).

15 (b) Section 52(a) of the Water Resources Develop16 ment Act of 1988 (102 Stat. 4044) is repealed.

17 SEC. 16. CONTRACT GOALS FOR SMALL DISADVANTAGED

18 BUSINESS CONCERNS AND HISTORICALLY

19 BLACK COLLEGES AND UNIVERSITIES OR MI20 NORITY INSTITUTIONS.

21 (a) GOAL.—Except as provided in subsection (c), the

22 Secretary shall establish a goal of 5 percent of the total

23 amount of civil works funds obligated for contracts and

24 subcontracts entered into by the Department of the Army

25 for fiscal years 1994 through 2000 for award to small

26 business concerns owned and controlled by socially and
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1 economically disadvantaged individuals (as such term is

2 used in section 8(d) of the Small Business Act (15 U.S.C.

3 637(d)) and regulations under that section), the majority

4 of the earnings of which directly accrue to such individ5 uals, and to historically Black colleges and universities or

6 minority institutions (as defined in paragraphs (3), (4),

7 and (5) of section 312(b) of the Higher Education Act

8 of 1965 (20 U.S.C. 1058)).

9 (b) COMPETITIVE PROCEDURE.—To the extent prac10 ticable and when necessary to facilitate achievement of the

11 5 percent goal in subsection (a)—

12 (1) the Secretary is authorized to enter into

13 contracts using less than full and open competitive

14 procedures, but shall pay a price not exceeding the

15 fair market cost by more than 10 percent in pay16 ment per contract to contractors or subcontractors

17 of contracts described in subsection (a); and

18 (2) the Secretary shall maximize the number of

19 small disadvantaged business concerns, historically

20 Black colleges and universities, and minority institu21 tions participating in the program.

22 (c) EXCEPTION.—The Secretary shall adjust the per23 centage specified in subsection (b)(1) of this section for

24 any industry category if available information clearly indi25 cates that nondisadvantaged small business concerns in
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1 such industry category are generally being denied a rea2 sonable opportunity to compete for contracts because of

3 the use of that percentage.

4 (d) NONAPPLICABILITY.—Subsection (a) does not

5 apply if—

6 (1) the Secretary determines that the existence

7 of a national emergency requires otherwise; and

8 (2) the Secretary notifies the Congress of such

9 determination and the reasons therefor.

10 SEC. 17. COST-SHARING FOR DAM SAFETY WORK.

11 Section 1203(a)(1) of the Water Resources Develop12 ment Act of 1986 is amended by inserting the following

13 language immediately after the first sentence: ‘‘Where cost

14 sharing was not based on a cost allocation, 15 percent of

15 the modification costs shall be assigned among project

16 purposes in the same manner as costs were originally as17 signed, as determined by the Secretary.’’.

18 SEC. 18. REVOCATION OF SECTION 211, RIVER AND HARBOR

19 ACT OF 1950.

20 Section 211 of the River and Harbor Act of 1950,

21 Public Law 516, 81st Congress, is hereby repealed.

22 SEC. 19. RESEARCH AND DEVELOPMENT IN SUPPORT OF

23 ARMY CIVIL WORKERS PROGRAM.

24 (a) In carrying out research and development in sup25 port of the Civil Works program of the Department of the
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1 Army, the Secretary may utilize contracts, cooperative re2 search and development agreements, cooperative agree3 ments, and grants with non-Federal entities, including

4 State and local governments, colleges and universities,

5 consortia, professional and technical societies, public and

6 private scientific and technical foundations, research insti7 tutions, educational organizations, and non-profit organi8 zations.

9 (b) With respect to contracts for research and devel10 opment, the Secretary may include requirements that have

11 potential commercial application and may also use such

12 potential application as an evaluation factor where appro13 priate.

14 SEC. 20. INTERAGENCY AND INTERNATIONAL SUPPORT AU15 THORITY.

16 The Secretary may engage in activities in support of

17 other Federal agencies or international organizations on

18 problems of national significance to the United States.

19 The Secretary may engage in activities in support of inter20 national organizations only after consulting with the De21 partment of State. The Secretary may apply the technical

22 and managerial expertise of the Army Corps of Engineers

23 to domestic and international problems related to water

24 resources, infrastructure development and environmental

25 protection. There is authorized to be appropriated up to
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1 $3,000,000 each fiscal year for the purpose of carrying

2 out this section. The Secretary may also accept and ex3 pend additional funds from other Federal agencies or

4 international organizations for purposes of carrying out

5 this section.

6 SEC. 21. EXPANSION OF SECTION 1135 PROGRAM.

7 Section 1135 of the Water Resources Development

8 Act of 1986 (33 U.S.C. 2309a) is amended by—

9 (1) striking the period at the end of subsection

10 (a) and inserting the following: ‘‘and to determine if

11 the operation of such projects has contributed to the

12 degradation of the quality of the environment.’’;

13 (2) striking the last two sentences of subsection

14 (b); and,

15 (3) redesignating subsections (c), (d), and (e)

16 as (e), (f), and (g) and inserting the following new

17 subsections:

18 ‘‘(c) If the Secretary determines that operation of a

19 water resources project has contributed to the degradation

20 of the quality of the environment, the Secretary may also

21 undertake measures for restoration of environmental qual22 ity, provided such measures are feasible and consistent

23 with the authorized project purposes.

24 ‘‘(d) The non-Federal share of the cost of any modi25 fications or measures carried out or undertaken pursuant
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1 to subsections (b) or (c) of this section shall be 25 percent.

2 No more than $5,000,000 in Federal funds may be ex3 pended on any single modification or measure carried out

4 or undertaken pursuant to this section.’’.

5 SEC. 22. REGULATORY PROGRAM FUND.

6 (a) There is hereby established in the Treasury of the

7 United States the ‘‘Army Civil Works Regulatory Program

8 Fund’’ (hereafter referred to as the ‘‘Regulatory Program

9 Fund’’) into which shall be deposited fees collected by the

10 Secretary of the Army pursuant to paragraph (b) of this

11 section. Amounts deposited into the Regulatory Program

12 Fund are authorized to be appropriated to the Secretary

13 of the Army to cover a portion of the expenses incurred

14 by the Department of the Army in administering laws per15 taining to the regulation of the navigable waters of the

16 United States as well as wetlands.

17 (b) REGULATORY FEES.—(1) To the extent provided

18 for in appropriation Acts, the Secretary of the Army shall

19 establish and collect fees for the evaluation of commercial

20 permit applications; for the recovery of costs associated

21 with the preparation of Environmental Impact Statements

22 required by the National Environmental Policy Act of

23 1969; and for the recovery of costs associated with wet24 lands delineations for major developments affecting wet25 lands. Amounts collected pursuant to this paragraph shall
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1 be deposited into the Regulatory Program Fund estab2 lished by paragraph (a) of this section.

3 (2) The fees described in paragraph (1) of this sub4 section shall be established by the Secretary of the Army

5 at rates that will allow for the recovery of receipts at

6 amounts as provided for in appropriation Acts.

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