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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 564 Introduced in Senate (IS)]

110th CONGRESS
  1st Session
                                 S. 564

     To modernize water resources planning, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 13, 2007

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

_______________________________________________________________________

                                 A BILL

 
     To modernize water resources planning, 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 ``Water Resources Planning and 
Modernization Act of 2007''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Council.--The term ``Council'' means the Water 
        Resources Council established under section 101 of the Water 
        Resources Planning Act (42 U.S.C. 1962a).
            (2) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

SEC. 3. NATIONAL WATER RESOURCES PLANNING AND MODERNIZATION POLICY.

    It is the policy of the United States that all water resources 
projects carried out by the Corps of Engineers shall--
            (1) reflect national priorities for flood damage reduction, 
        navigation, and ecosystem restoration; and
            (2) seek to avoid the unwise use of floodplains, minimize 
        vulnerabilities in any case in which a floodplain must be used, 
        protect and restore the extent and functions of natural 
        systems, and mitigate any unavoidable damage to natural 
        systems.

SEC. 4. MEETING THE NATION'S WATER RESOURCE PRIORITIES.

    (a) Report on the Nation's Flood Risks.--Not later than 18 months 
after the date of enactment of this Act, the Council shall submit to 
the President and Congress a report describing the vulnerability of the 
United States to damage from flooding and related storm damage, 
including the risk to human life, the risk to property, and the 
comparative risks faced by different regions of the country. The report 
shall assess the extent to which the Nation's programs relating to 
flooding are addressing flood risk reduction priorities and the extent 
to which those programs may unintentionally be encouraging development 
and economic activity in floodprone areas, and shall provide 
recommendations for improving those programs in reducing and responding 
to flood risks. Not later than 90 days after the report required by 
this subsection is published in the Federal Register, the 
Administration shall submit to Congress a report that responds to the 
recommendations of the Council and includes proposals to implement 
recommendations of the Council.
    (b) Prioritization of Water Resources Projects.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Council shall submit to Congress an 
        initial report containing a prioritized list of each water 
        resources project of the Corps of Engineers that is not being 
        carried out under a continuing authorities program, categorized 
        by project type and recommendations with respect to a process 
        to compare all water resources projects across project type. 
        The Council shall submit to Congress a prioritized list of 
        water resources projects of the Corps of Engineers every 2 
        years following submission of the initial report. In preparing 
        the prioritization of projects, the Council shall endeavor to 
        balance stability in the rankings from year to year with 
        recognizing newly authorized projects. Each report prepared 
        under this paragraph shall provide documentation and 
        description of any criteria used in addition to those set forth 
        in paragraph (2) for comparing water resources projects and the 
        assumptions upon which those criteria are based.
            (2) Project prioritization criteria.--In preparing a report 
        under paragraph (1), the Council shall prioritize each water 
        resource project of the Corps of Engineers based on the extent 
        to which the project meets at least the following criteria:
                    (A) For flood damage reduction projects, the extent 
                to which such a project--
                            (i) addresses the most critical flood 
                        damage reduction needs of the United States as 
                        identified by the Council;
                            (ii) does not encourage new development or 
                        intensified economic activity in flood prone 
                        areas and avoids adverse environmental impacts; 
                        and
                            (iii) provides significantly increased 
                        benefits to the United States through the 
                        protection of human life, property, economic 
                        activity, or ecosystem services.
                    (B) For navigation projects, the extent to which 
                such a project--
                            (i) produces a net economic benefit to the 
                        United States based on a high level of 
                        certainty that any projected trends upon which 
                        the project is based will be realized;
                            (ii) addresses priority navigation needs of 
                        the United States identified through 
                        comprehensive, regional port planning; and
                            (iii) minimizes adverse environmental 
                        impacts.
                    (C) For environmental restoration projects, the 
                extent to which such a project--
                            (i) restores the natural hydrologic 
                        processes and spatial extent of an aquatic 
                        habitat;
                            (ii) is self-sustaining; and
                            (iii) is cost-effective or produces 
                        economic benefits.
            (3) Sense of congress.--It is the sense of Congress that to 
        promote effective prioritization of water resources projects, 
        no project should be authorized for construction unless a final 
        Chief's report recommending construction has been submitted to 
        Congress, and annual appropriations for the Corps of Engineers' 
        Continuing Authorities Programs should be distributed by the 
        Corps of Engineers to those projects with the highest degree of 
        design merit and the greatest degree of need, consistent with 
        the applicable criteria established under paragraph (2).
    (c) Modernizing Water Resources Planning Guidelines.--
            (1) In general.--Not later than 2 years after the date of 
        enactment of this Act, and every 5 years thereafter, the 
        Council, in coordination with the National Academy of Sciences, 
        shall propose revisions to the planning principles and 
        guidelines, regulations, and circulars of the Corps of 
        Engineers to improve the process by which the Corps of 
        Engineers analyzes and evaluates water projects.
            (2) Public participation.--The Council shall solicit public 
        and expert comment and testimony regarding proposed revisions 
        and shall subject proposed revisions to public notice and 
        comment.
            (3) Revisions.--Revisions proposed by the Council shall 
        improve water resources project planning through, among other 
        things--
                    (A) focusing Federal dollars on the highest water 
                resources priorities of the United States;
                    (B) requiring the use of modern economic principles 
                and analytical techniques, credible schedules for 
                project construction, and current discount rates as 
                used by all other Federal agencies;
                    (C) discouraging any project that induces new 
                development or intensified economic activity in flood 
                prone areas, and eliminating biases and disincentives 
                to providing projects to low-income communities, 
                including fully accounting for the prevention of loss 
                of life as required by section 904 of the Water 
                Resources Development Act of 1986 (33 U.S.C. 2281);
                    (D) eliminating biases and disincentives that 
                discourage the use of nonstructural approaches to water 
                resources development and management, and fully 
                accounting for the flood protection and other values of 
                healthy natural systems;
                    (E) utilizing a comprehensive, regional approach to 
                port planning;
                    (F) promoting environmental restoration projects 
                that reestablish natural processes;
                    (G) analyzing and incorporating lessons learned 
                from recent studies of Corps of Engineers programs and 
                recent disasters such as Hurricane Katrina and the 
                Great Midwest Flood of 1993; and
                    (H) ensuring the effective implementation of the 
                National Water Resources Planning and Modernization 
                Policy established by this Act.
    (d) Revision of Planning Guidelines.--Not later than 180 days after 
submission of the proposed revisions required by subsection (b), the 
Secretary shall implement the recommendations of the Council by 
incorporating the proposed revisions into the planning principles and 
guidelines, regulations, and circulars of the Corps of Engineers. These 
revisions shall be subject to public notice and comment pursuant to 
subchapter II of chapter 5, and chapter 7, of title 5, United States 
Code (commonly known as the ``Administrative Procedure Act''). 
Effective beginning on the date on which the Secretary carries out the 
first revision under this paragraph, the Corps of Engineers shall not 
be subject to--
            (1) subsections (a) and (b) of section 80 of the Water 
        Resources Development Act of 1974 (42 U.S.C. 1962d-17); and
            (2) any provision of the guidelines entitled ``Economic and 
        Environmental Principles and Guidelines for Water and Related 
        Land Resources Implementation Studies'' and dated 1983, to the 
        extent that such a provision conflicts with a guideline revised 
        by the Secretary.
    (e) Availability.--Each report prepared under this section shall be 
published in the Federal Register and submitted to the Committees on 
Environment and Public Works and Appropriations of the Senate and the 
Committees on Transportation and Infrastructure and Appropriations of 
the House of Representatives.
    (f) Water Resources Council.--Section 101 of the Water Resources 
Planning Act (42 U.S.C. 1962a) is amended in the first sentence by 
inserting ``the Secretary of Homeland Security, the Chairperson of the 
Council on Environmental Quality,'' after ``Secretary of 
Transportation,''.
    (g) Funding.--In carrying out this section, the Council shall use 
funds made available for the general operating expenses of the Corps of 
Engineers.

SEC. 5. INDEPENDENT PEER REVIEW.

    (a) Definitions.--In this section:
            (1) Construction activities.--The term ``construction 
        activities'' means development of detailed engineering and 
        design specifications during the preconstruction engineering 
        and design phase and the engineering and design phase of a 
        water resources project carried out by the Corps of Engineers, 
        and other activities carried out on a water resources project 
        prior to completion of the construction and to turning the 
        project over to the local cost-share partner.
            (2) Project study.--The term ``project study'' means a 
        feasibility report, reevaluation report, or environmental 
        impact statement prepared by the Corps of Engineers.
    (b) Director of Independent Peer Review.--The Secretary shall 
appoint in the Office of the Secretary a Director of Independent 
Review. The Director shall be selected from among individuals who are 
distinguished experts in engineering, hydrology, biology, economics, or 
another discipline related to water resources management. The Secretary 
shall ensure, to the maximum extent practicable, that the Director does 
not have a financial, professional, or other conflict of interest with 
projects subject to review. The Director of Independent Review shall 
carry out the duties set forth in this section and such other duties as 
the Secretary deems appropriate.
    (c) Sound Project Planning.--
            (1) Projects subject to planning review.--The Secretary 
        shall ensure that each project study for a water resources 
        project shall be reviewed by an independent panel of experts 
        established under this subsection if--
                    (A) the project has an estimated total cost of more 
                than $40,000,000, including mitigation costs;
                    (B) the Governor of a State in which the water 
                resources project is located in whole or in part, or 
                the Governor of a State within the drainage basin in 
                which a water resources project is located and that 
                would be directly affected economically or 
                environmentally as a result of the project, requests in 
                writing to the Secretary the establishment of an 
                independent panel of experts for the project;
                    (C) the head of a Federal agency with authority to 
                review the project determines that the project is 
                likely to have a significant adverse impact on public 
                safety, or on environmental, fish and wildlife, 
                historical, cultural, or other resources under the 
                jurisdiction of the agency, and requests in writing to 
                the Secretary the establishment of an independent panel 
                of experts for the project; or
                    (D) the Secretary determines on his or her own 
                initiative, or shall determine within 30 days of 
                receipt of a written request for a controversy 
                determination by any party, that the project is 
                controversial because--
                            (i) there is a significant dispute 
                        regarding the size, nature, potential safety 
                        risks, or effects of the project; or
                            (ii) there is a significant dispute 
                        regarding the economic, or environmental costs 
                        or benefits of the project.
            (2) Project planning review panels.--
                    (A) Project planning review panel membership.--For 
                each water resources project subject to review under 
                this subsection, the Director of Independent Review 
                shall establish a panel of independent experts that 
                shall be composed of not less than 5 nor more than 9 
                independent experts (including at least 1 engineer, 1 
                hydrologist, 1 biologist, and 1 economist) who 
                represent a range of areas of expertise. The Director 
                of Independent Review shall apply the National Academy 
                of Science's policy for selecting committee members to 
                ensure that members have no conflict with the project 
                being reviewed, and shall consult with the National 
                Academy of Sciences in developing lists of individuals 
                to serve on panels of experts under this subsection. An 
                individual serving on a panel under this subsection 
                shall be compensated at a rate of pay to be determined 
                by the Secretary, and shall be allowed travel expenses.
                    (B) Duties of project planning review panels.--An 
                independent panel of experts established under this 
                subsection shall review the project study, receive from 
                the public written and oral comments concerning the 
                project study, and submit a written report to the 
                Secretary that shall contain the panel's conclusions 
                and recommendations regarding project study issues 
                identified as significant by the panel, including 
                issues such as--
                            (i) economic and environmental assumptions 
                        and projections;
                            (ii) project evaluation data;
                            (iii) economic or environmental analyses;
                            (iv) engineering analyses;
                            (v) formulation of alternative plans;
                            (vi) methods for integrating risk and 
                        uncertainty;
                            (vii) models used in evaluation of economic 
                        or environmental impacts of proposed projects; 
                        and
                            (viii) any related biological opinions.
                    (C) Project planning review record.--
                            (i) In general.--After receiving a report 
                        from an independent panel of experts 
                        established under this subsection, the 
                        Secretary shall take into consideration any 
                        recommendations contained in the report and 
                        shall immediately make the report available to 
                        the public on the Internet.
                            (ii) Recommendations.--The Secretary shall 
                        prepare a written explanation of any 
                        recommendations of the independent panel of 
                        experts established under this subsection not 
                        adopted by the Secretary. Recommendations and 
                        findings of the independent panel of experts 
                        rejected without good cause shown, as 
                        determined by judicial review, shall be given 
                        equal deference as the recommendations and 
                        findings of the Secretary during a judicial 
                        proceeding relating to the water resources 
                        project.
                            (iii) Submission to congress and public 
                        availability.--The report of the independent 
                        panel of experts established under this 
                        subsection and the written explanation of the 
                        Secretary required by clause (ii) shall be 
                        included with the report of the Chief of 
                        Engineers to Congress, shall be published in 
                        the Federal Register, and shall be made 
                        available to the public on the Internet.
                    (D) Deadlines for project planning reviews.--
                            (i) In general.--Independent review of a 
                        project study shall be completed prior to the 
                        completion of any Chief of Engineers report for 
                        a specific water resources project.
                            (ii) Deadline for project planning review 
                        panel studies.--An independent panel of experts 
                        established under this subsection shall 
                        complete its review of the project study and 
                        submit to the Secretary a report not later than 
                        180 days after the date of establishment of the 
                        panel, or not later than 90 days after the 
                        close of the public comment period on a draft 
                        project study that includes a preferred 
                        alternative, whichever is later. The Secretary 
                        may extend these deadlines for good cause.
                            (iii) Failure to complete review and 
                        report.--If an independent panel of experts 
                        established under this subsection does not 
                        submit to the Secretary a report by the 
                        deadline established by clause (ii), the Chief 
                        of Engineers may continue project planning 
                        without delay.
                            (iv) Duration of panels.--An independent 
                        panel of experts established under this 
                        subsection shall terminate on the date of 
                        submission of the report by the panel. Panels 
                        may be established as early in the planning 
                        process as deemed appropriate by the Director 
                        of Independent Review, but shall be appointed 
                        no later than 90 days before the release for 
                        public comment of a draft study subject to 
                        review under subsection (c)(1)(A), and not 
                        later than 30 days after a determination that 
                        review is necessary under subsection (c)(1)(B), 
                        (c)(1)(C), or (c)(1)(D).
                    (E) Effect on existing guidance.--The project 
                planning review required by this subsection shall be 
                deemed to satisfy any external review required by 
                Engineering Circular 1105-2-408 (31 May 2005) on Peer 
                Review of Decision Documents.
    (d) Safety Assurance.--
            (1) Projects subject to safety assurance review.--The 
        Secretary shall ensure that the construction activities for any 
        flood damage reduction project shall be reviewed by an 
        independent panel of experts established under this subsection 
        if the Director of Independent Review makes a determination 
        that an independent review is necessary to ensure public 
        health, safety, and welfare on any project--
                    (A) for which the reliability of performance under 
                emergency conditions is critical;
                    (B) that uses innovative materials or techniques;
                    (C) for which the project design is lacking in 
                redundancy, or that has a unique construction 
                sequencing or a short or overlapping design 
                construction schedule; or
                    (D) other than a project described in subparagraphs 
                (A) through (C), as the Director of Independent Review 
                determines to be appropriate.
            (2) Safety assurance review panels.--At the appropriate 
        point in the development of detailed engineering and design 
        specifications for each water resources project subject to 
        review under this subsection, the Director of Independent 
        Review shall establish an independent panel of experts to 
        review and report to the Secretary on the adequacy of 
        construction activities for the project. An independent panel 
        of experts under this subsection shall be composed of not less 
        than 5 nor more than 9 independent experts selected from among 
        individuals who are distinguished experts in engineering, 
        hydrology, or other pertinent disciplines. The Director of 
        Independent Review shall apply the National Academy of 
        Science's policy for selecting committee members to ensure that 
        panel members have no conflict with the project being reviewed. 
        An individual serving on a panel of experts under this 
        subsection shall be compensated at a rate of pay to be 
        determined by the Secretary, and shall be allowed travel 
        expenses.
            (3) Deadlines for safety assurance reviews.--An independent 
        panel of experts established under this subsection shall submit 
        a written report to the Secretary on the adequacy of the 
        construction activities prior to the initiation of physical 
        construction and periodically thereafter until construction 
        activities are completed on a publicly available schedule 
        determined by the Director of Independent Review for the 
        purposes of assuring the public safety. The Director of 
        Independent Review shall ensure that these reviews be carried 
        out in a way to protect the public health, safety, and welfare, 
        while not causing unnecessary delays in construction 
        activities.
            (4) Safety assurance review record.--After receiving a 
        written report from an independent panel of experts established 
        under this subsection, the Secretary shall--
                    (A) take into consideration recommendations 
                contained in the report, provide a written explanation 
                of recommendations not adopted, and immediately make 
                the report and explanation available to the public on 
                the Internet; and
                    (B) submit the report to the Committee on 
                Environment and Public Works of the Senate and the 
                Committee on Transportation and Infrastructure of the 
                House of Representatives.
    (e) Expenses.--
            (1) In general.--The costs of an independent panel of 
        experts established under subsection (c) or (d) shall be a 
        Federal expense and shall not exceed--
                    (A) $250,000, 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) Waiver.--The Secretary, at the written request of the 
        Director of Independent Review, may waive the cost limitations 
        under paragraph (1) if the Secretary determines appropriate.
    (f) Report.--Not later than 5 years after the date of enactment of 
this Act, the Secretary shall submit to Congress a report describing 
the implementation of this section.
    (g) Savings Clause.--Nothing in this section shall be construed to 
affect any authority of the Secretary to cause or conduct a peer review 
of the engineering, scientific, or technical basis of any water 
resources project in existence on the date of enactment of this Act.

SEC. 6. MITIGATION.

    (a) Mitigation.--Section 906(d) of the Water Resources Development 
Act of 1986 (33 U.S.C. 2283(d)) is amended--
            (1) in paragraph (1), by striking ``to the Congress'' and 
        inserting ``to Congress, and shall not choose a project 
        alternative in any final record of decision, environmental 
        impact statement, or environmental assessment,'', and by 
        inserting in the second sentence ``and other habitat types'' 
        after ``bottomland hardwood forests''; and
            (2) by adding at the end the following:
            ``(3) Mitigation requirements.--
                    ``(A) Mitigation.--To mitigate losses to flood 
                damage reduction capabilities and fish and wildlife 
                resulting from a water resources project, the Secretary 
                shall ensure that mitigation for each water resources 
                project complies fully with the mitigation standards 
                and policies established by each State in which the 
                project is located. Under no circumstances shall the 
                mitigation required for a water resources project be 
                less than would be required of a private party or other 
                entity under section 404 of the Federal Water Pollution 
                Control Act (33 U.S.C. 1344).
                    ``(B) Mitigation plan.--The specific mitigation 
                plan for a water resources project required under 
                paragraph (1) shall include, at a minimum--
                            ``(i) a detailed 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 Director of the United 
                        States Fish and Wildlife Service or the 
                        Director of the National Marine Fisheries 
                        Service, as appropriate, and each State in 
                        which the project is located;
                            ``(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 types and amount 
                        of restoration activities to be conducted, to 
                        permit a thorough evaluation of the likelihood 
                        of the ecological success and aquatic and 
                        terrestrial resource functions and habitat 
                        values that will result from the plan; 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.
            ``(4) Determination of mitigation success.--
                    ``(A) In general.--Mitigation under this subsection 
                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) Evaluation and reporting.--The Secretary 
                shall consult annually with the Director of the United 
                States Fish and Wildlife Service and the Director of 
                the National Marine Fisheries Service, as appropriate, 
                and each State in which the project is located, 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. Not later than 60 
                days after the date of completion of the annual 
                consultation, the Director of the United States Fish 
                and Wildlife Service or the Director of the National 
                Marine Fisheries Service, as appropriate, shall, and 
                each State in which the project is located may, submit 
                to the Secretary a report that describes--
                            ``(i) the ecological success of the 
                        mitigation as of the date of the report;
                            ``(ii) the likelihood that the mitigation 
                        will achieve ecological success, as defined in 
                        the mitigation plan;
                            ``(iii) the projected timeline for 
                        achieving that success; and
                            ``(iv) any recommendations for improving 
                        the likelihood of success.
                The Secretary shall respond in writing to the substance 
                and recommendations contained in such reports not later 
                than 30 days after the date of receipt. Mitigation 
                monitoring shall continue until it has been 
                demonstrated that the mitigation has met the ecological 
                success criteria.''.
    (b) Mitigation Tracking System.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary shall establish a 
        recordkeeping system to track, for 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)--
                    (A) the quantity and type of wetland and other 
                habitat types affected by the project, project 
                operation, or permitted activity;
                    (B) the quantity and type of mitigation required 
                for the project, project operation, or permitted 
                activity;
                    (C) the quantity and type of mitigation that has 
                been completed for the project, project operation, or 
                permitted activity; and
                    (D) the status of monitoring for the mitigation 
                carried out for the project, project operation, or 
                permitted activity.
            (2) Required information and organization.--The 
        recordkeeping system shall--
                    (A) include information on impacts and mitigation 
                described in paragraph (1) that occur after December 
                31, 1969; and
                    (B) be organized by watershed, project, permit 
                application, and zip code.
            (3) Availability of information.--The Secretary shall make 
        information contained in the recordkeeping system available to 
        the public on the Internet.

SEC. 7. PROJECT ADMINISTRATION.

    (a) Chief's Reports.--The Chief of Engineers shall not submit a 
Chief's report to Congress recommending construction of a water 
resources project until that Chief's report has been reviewed and 
approved by the Secretary of the Army.
    (b) Project Tracking.--The Secretary shall assign a unique tracking 
number to each water resources project, to be used by each Federal 
agency throughout the life of the project.
    (c) Report Repository.--The Secretary shall maintain at the Library 
of Congress a copy of each final feasibility study, final environmental 
impact statement, final reevaluation report, record of decision, and 
report to Congress prepared by the Corps of Engineers. These documents 
shall be made available to the public for review, and electronic copies 
of those documents shall be permanently available, through the Internet 
website of the Corps of Engineers.
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