I

107TH CONGRESS

1ST SESSION H. R. 1310

To reform the Army Corps of Engineers.

IN THE HOUSE OF REPRESENTATIVES

MARCH 29, 2001

Mr. KIND (for himself, Mr. ANDREWS, Ms. BALDWIN, Mr. BARRETT, Mr.

BLUMENAUER, Mr. GILCHREST, Mr. LARSON of Connecticut, Mr. LEWIS

of Georgia, Mrs. MALONEY of New York, Mr. PALLONE, Mr. TANCREDO,

Mrs. TAUSCHER, Mr. UDALL of Colorado, and Mr. UDALL of New Mexico) 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 2001’’.

6 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Secretary defined.

TITLE I—PROJECT PLANNING REFORM

Sec. 101. Principles and guidelines.

Sec. 102. Stakeholder advisory committees.
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Sec. 103. Independent review.

Sec. 104. Public access to information.

Sec. 105. Benefit-cost analysis.

Sec. 106. Project criteria.

TITLE II—MITIGATION

Sec. 201. Full mitigation.

Sec. 202. Concurrent mitigation.

Sec. 203. Mitigation tracking system.

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 considered and

16 fully mitigated.

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

18 the oversight of Corps of Engineers project develop19 ment.

20 (b) PURPOSES.—The purposes of this Act are as fol21 lows:
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1 (1) To ensure that the Nation’s water resources

2 investments are economically justified and enhance

3 the environment.

4 (2) To provide independent review of Corps of

5 Engineers feasibility studies, general reevaluation

6 studies, and environmental impact statements.

7 (3) To ensure that mitigation for Corps of En8 gineers projects is successful and cost-effective.

9 (4) To enhance the involvement of affected in10 terests in Corps of Engineers feasibility studies, gen11 eral reevaluation studies, and environmental impact

12 statements.

13 (5) To revise Corps of Engineers planning prin14 ciples to meet the economic and environmental needs

15 of riverside and coastal communities.

16 (6) To ensure that environmental analyses be

17 considered as co-equal to economic analyses in the

18 assessment of Corps of Engineers projects, recog19 nizing the need for sound science in the evaluation

20 of the impacts on the health of aquatic ecosystems.

21 (7) To ensure that the Corps of Engineers is

22 making appropriate, up-to-date calculations in con23 ducting cost-benefit analyses of Corps of Engineers

24 projects.
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1 SEC. 3. SECRETARY DEFINED.

2 In this Act, the term ‘‘Secretary’’ means the Sec3 retary of the Army.

4 TITLE I—PROJECT PLANNING

5 REFORM

6 SEC. 101. PRINCIPLES AND GUIDELINES.

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

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

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

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

11 economic development and environmental protection and

12 restoration be co-equal goals of water resources planning

13 and development.

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

15 Not later than 1 year after the date of enactment of the

16 Corps of Engineers Reform Act of 2001, the Secretary

17 shall revise the principles and guidelines of the Corps of

18 Engineers for water resources projects—

19 ‘‘(1) to provide for the consideration of ecologi20 cal restoration costs under Corps of Engineers eco21 nomic models;

22 ‘‘(2) to incorporate new techniques in risk and

23 uncertainty analysis;

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

25 nonstructural flood damage reduction projects;

26 ‘‘(4) to incorporate new analytical techniques;
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1 ‘‘(5) to encourage, to the maximum extent prac2 ticable, the restoration of aquatic ecosystems; and

3 ‘‘(6) to ensure that water resources projects are

4 justified by benefits that accrue to the public at

5 large and not to a limited number of private busi6 nesses.

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

8 update the Guidance for Conducting Civil Works Planning

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

10 SEC. 102. STAKEHOLDER ADVISORY COMMITTEES.

11 (a) IN GENERAL.—Upon receipt of a written request

12 by any person or governmental entity, the Secretary shall

13 establish for a water resources project that is authorized

14 or substantially modified after the date of enactment of

15 this Act a stakeholder advisory committee to assist the

16 Secretary with the development of feasibility studies, gen17 eral reevaluation studies, and environmental impact state18 ments for the project.

19 (b) DURATION OF REVIEWS.—A stakeholder advisory

20 committee established for a project under this section may

21 provide advice to the Secretary during planning and de22 sign of the project, beginning with the initiation of the

23 project’s draft feasibility study and ending with the

24 issuance of the project’s draft environmental impact state25 ment.
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1 (c) MEMBERSHIP.—A stakeholder advisory com2 mittee established for a project under this section shall

3 be composed of representatives of State and local agencies,

4 tribal organizations, public interest groups, industry, sci5 entific, and academic organizations, Federal agencies, and

6 other interested citizens. The membership shall represent

7 a balance of the social, economic, and environmental inter8 ests in the project.

9 (d) ROLE.—A stakeholder advisory committee estab10 lished for a project under this section shall advise the Sec11 retary but shall not be required to make a formal rec12 ommendation.

13 (e) COSTS.—The costs of a stakeholder advisory com14 mittee established for a project under this section—

15 (1) shall be a Federal expense;

16 (2) shall not exceed $250,000; and

17 (3) shall be considered as part of the total cost

18 of the project.

19 (f) APPLICABILITY OF FEDERAL ADVISORY COM20 MITTEE ACT.—The Federal Advisory Committee Act (5

21 U.S.C. App.) shall apply to a stakeholder advisory com22 mittee established under this section.

23 SEC. 103. INDEPENDENT REVIEW.

24 (a) PROJECTS SUBJECT TO INDEPENDENT RE25 VIEW.—
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1 (1) IN GENERAL.—The Secretary shall ensure

2 that feasibility studies, general reevaluation studies,

3 and environmental impact statements for each water

4 resources project described in paragraph (2) are

5 subject to review by an independent panel of experts

6 established under this section.

7 (2) PROJECTS SUBJECT TO REVIEW.—A project

8 shall be subject to review under paragraph (1) if—

9 (A) the project has an estimated total cost

10 of more than $25,000,000, including mitigation

11 costs;

12 (B) the Governor of an affected State re13 quests the establishment of an independent

14 panel of experts for the project;

15 (C) the Director of the United States Fish

16 and Wildlife Service determines that the project

17 is likely to have a significant adverse impact on

18 fish or wildlife after implementation of proposed

19 mitigation plans;

20 (D) the head of a Federal agency charged

21 with reviewing the project determines that the

22 project is likely to have a signficant adverse im23 pact on environmental, cultural, or other re24 sources under the jurisdiction of the agency
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1 after implementation of proposed mitigation

2 plans; or

3 (E) the Secretary determines that the

4 project is controversial under paragraph (3).

5 (3) CONTROVERSIAL PROJECTS.—Upon receipt

6 of a written request by an interested party or on the

7 initiative of the Secretary, the Secretary shall deter8 mine whether or not a project is controversial under

9 paragraph (2)(E). The Secretary shall determine

10 that a project is controversial if the Secretary finds

11 that—

12 (A) there is a significant public dispute as

13 to the size, nature, or effects of the project; or

14 (B) there is a significant public dispute as

15 to the economic or environmental costs or bene16 fits of the project.

17 (4) AFFECTED STATE DEFINED.—In paragraph

18 (2)(B), the term ‘‘affected State’’ means a State

19 that is at least partially within the drainage basin in

20 which the project is located and would be economi21 cally or environmentally affected as a consequence of

22 the project.

23 (b) OFFICE OF INDEPENDENT REVIEW.—

24 (1) ESTABLISHMENT.—There is established in

25 the Office of the Assistant Secretary of the Army for
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1 Civil Works an Office of Independent Review (in this

2 section referred to as the ‘‘Office’’).

3 (2) DIRECTOR.—

4 (A) APPOINTMENT.—The head of the Of5 fice shall be the Director of the Office of Inde6 pendent Review (in this section referred to as

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

8 Secretary for a term of 3 years.

9 (B) QUALIFICATIONS.—The Secretary

10 shall select the Director from among individuals

11 who are distinguished scholars. In making the

12 selection, the Secretary shall consider any rec13 ommendations made by the Inspector General

14 of the Army.

15 (C) LIMITATION ON APPOINTMENTS.—The

16 Secretary shall not appoint an individual to

17 serve as the Director if the individual has a fi18 nancial or close professional association with

19 any organization or group with a strong finan20 cial or organizational interest in an ongoing

21 water resources project.

22 (D) TERMS.—An individual may not serve

23 for more than 1 term as the Director.
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1 (3) DUTIES.—The Director shall establish a

2 panel of experts to review each project subject to re3 view under subsection (a).

4 (c) ESTABLISHMENT OF PANELS.—

5 (1) IN GENERAL.—As soon as practicable after

6 the Secretary selects a preferred alternative for a

7 project subject to review under subsection (a), the

8 Director shall establish a panel of experts to review

9 the project.

10 (2) MEMBERSHIP.—A panel of experts estab11 lished by the Director for a project shall be com12 posed of not less than 5 and not more than 9 inde13 pendent experts who represent a balance of areas of

14 expertise, including biologists, engineers, and econo15 mists.

16 (3) LIMITATION ON APPOINTMENTS.—The Di17 rector shall not appoint an individual to serve on a

18 panel of experts for a project if the individual has

19 a financial or close professional association with any

20 organization or group with a strong financial or or21 ganizational interest in the project.

22 (4) CONSULTATION.—The Director shall con23 sult with the National Academy of Sciences in devel24 oping lists of individuals to serve on panels of ex25 perts under this section.
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1 (5) COMPENSATION.—An individual serving on

2 a panel of experts under this section shall be com3 pensated at a rate of pay to be determined by the

4 Secretary.

5 (6) TRAVEL EXPENSES.—An individual serving

6 on a panel of experts under this section shall receive

7 travel expenses, including per diem in lieu of subsist8 ence, in accordance with sections 5702 and 5703 of

9 title 5, United States Code.

10 (d) DUTIES OF PANELS.—A panel of experts estab11 lished for a project under this section shall—

12 (1) review each feasibility study, general re13 evaluation study, and environmental impact state14 ment prepared for the project;

15 (2) assess the adequacy of the economic models

16 used by the Secretary in reviewing the project to en17 sure that—

18 (A) multiple methods of economic analysis

19 have been used; and

20 (B) any regional effects on navigation sys21 tems have been examined;

22 (3) assess the adequacy of the environmental

23 models and analyses used by the Secretary in re24 viewing the project;
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1 (4) receive and review written and oral com2 ments of a technical nature concerning the project

3 from the public; and

4 (5) submit to the Secretary a report containing

5 the panel’s economic, engineering, and environ6 mental analysis of the project, including the panel’s

7 conclusions on the project’s feasibility studies, gen8 eral reevaluation studies, and environmental impact

9 statements, with particular emphasis on areas of

10 public controversy.

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

12 experts shall complete its review of a project under this

13 section not later than 180 days after the date of establish14 ment of the panel and shall terminate upon submission

15 of a final report to the Secretary under subsection (d)(5).

16 (f) RECOMMENDATIONS OF PANEL.—

17 (1) CONSIDERATION BY SECRETARY.—After re18 ceiving a report on a project from a panel of experts

19 under this section and before entering a final record

20 of decision for the project, the Secretary shall con21 sider any recommendations contained in the report

22 and prepare a written explanation for any rec23 ommendations not adopted.

24 (2) PUBLIC REVIEW; TRANSMITTAL TO CON25 GRESS.—After receiving a report on a project from
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1 a panel of experts under this section, the Secretary

2 shall—

3 (A) make a copy of the report and any

4 written explanation of the Secretary on rec5 ommendations contained in the report available

6 for public review under section 104; and

7 (B) transmit to Congress a copy of the re8 port, together with any such written expla9 nation.

10 (g) COSTS.—

11 (1) IN GENERAL.—The costs of a panel of ex12 perts established for a project under this section—

13 (A) shall be a Federal expense;

14 (B) shall not exceed $500,000; and

15 (C) shall be considered as part of the total

16 cost of the project.

17 (2) WAIVER.—The Secretary may waive the

18 $500,000 limitation contained in paragraph (1)(B)

19 in cases that the Secretary determines appropriate.

20 (h) APPLICABILITY OF FEDERAL ADVISORY COM21 MITTEE ACT.—The Federal Advisory Committee Act (5

22 U.S.C. App.) shall apply to a panel of experts established

23 under this section.
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1 SEC. 104. PUBLIC ACCESS TO INFORMATION.

2 (a) IN GENERAL.—The Secretary shall ensure that

3 information related to the analysis of a water resources

4 project by the Corps of Engineers, including all supporting

5 data, analytical documents, and information that the

6 Corps of Engineers has considered in its analysis, is made

7 available to any individual upon request and to the public

8 on the Internet.

9 (b) TYPES OF INFORMATION.—Information about a

10 water resources project to be made available under sub11 section (a) shall include any information that had been

12 made available to the project sponsor and all data used

13 by the Corps of Engineers in its justification and analysis

14 of the project.

15 (c) EXCEPTION FOR TRADE SECRETS.—

16 (1) IN GENERAL.—The Secretary shall not

17 make information available under subsection (a) that

18 the Secretary determines to be a trade secret of the

19 person who supplied the information to the Corps of

20 Engineers.

21 (2) CRITERIA FOR TRADE SECRETS.—The Sec22 retary shall consider information to be a trade secret

23 only if—

24 (A) the person who supplied the informa25 tion to the Corps of Engineers—
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1 (i) has not disclosed the information

2 to any person other than (I) an officer or

3 employee of the United States or a State

4 or local government, (II) an employee of

5 such person, or (III) a person who is

6 bound by a confidentiality agreement; and

7 (ii) has taken reasonable measures to

8 protect the confidentiality of the informa9 tion and intends to continue to take such

10 measures;

11 (B) the information is not required to be

12 disclosed, or otherwise made available, to the

13 public under any other Federal or State law;

14 and

15 (C) disclosure of the information is likely

16 to cause substantial harm to the competitive po17 sition of such person.

18 SEC. 105. BENEFIT-COST ANALYSIS.

19 Section 308(a) of the Water Resources Development

20 Act of 1990 (33 U.S.C. 2318(a)) is amended—

21 (1) by striking ‘‘and’’ at the end of paragraph

22 (1)(B);

23 (2) by striking the period at the end of para24 graph (2) and inserting ‘‘; and’’; and

25 (3) by adding at the end the following:
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1 ‘‘(3) any projected benefit arising from the

2 draining, reduction, or elimination of wetlands at3 tributable to increases in the value of privately

4 owned property, increases in the quantity of pri5 vately owned property, or increases in the value of

6 privately owned services.’’.

7 SEC. 106. PROJECT CRITERIA.

8 After the date of enactment of this Act, the Secretary

9 shall not submit to Congress any proposal to authorize or

10 substantially modify a water resources project unless the

11 proposal contains a certification by the Secretary that the

12 project minimizes to the greatest extent practicable ad13 verse impacts on—

14 (1) the natural hydrologic patterns of aquatic

15 ecosystems; and

16 (2) the value or native diversity of aquatic eco17 systems.

18 TITLE II—MITIGATION

19 SEC. 201. FULL MITIGATION.

20 Section 906(d) of the Water Resources Development

21 Act of 1986 (33 U.S.C. 2283(d)) is amended—

22 (1) in the first sentence of paragraph (1) by in23 serting ‘‘fully’’ before ‘‘mitigate’’; and

24 (2) by adding at the end the following:
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1 ‘‘(3) STANDARDS FOR MITIGATION.—To miti2 gate losses to fish and wildlife resulting from a

3 water resources project, the Secretary, at a min4 imum, shall acquire and restore an acre of habitat

5 to replace each acre of habitat negatively impacted

6 by the project. The mitigation plan shall include a

7 detailed and specific plan to monitor mitigation im8 plementation and success.

9 ‘‘(4) DESIGN OF MITIGATION PROJECTS.—The

10 Secretary shall design mitigation projects to reflect

11 contemporary understanding of the importance of

12 spatial distribution of habitat and the natural hy13 drology of aquatic ecosystems, and shall fully miti14 gate the adverse hydrologic impacts of projects.

15 ‘‘(5) RECOMMENDATION OF PROJECTS.—The

16 Secretary shall not recommend a water resources

17 project alternative or choose a project alternative in

18 any final record of decision, environmental impact

19 statement, or environmental assessment completed

20 after the date of enactment of this paragraph unless

21 the Secretary determines that the mitigation plan

22 for the alternative has the greatest probability of

23 cost-effectively and successfully mitigating the ad24 verse impacts of the project on aquatic resources

25 and fish and wildlife.
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1 ‘‘(6) COMPLETION OF MITIGATION BEFORE

2 CONSTRUCTION OF NEW PROJECTS.—The Secretary

3 shall complete all planned mitigation in a particular

4 watershed before constructing any new water re5 sources project in that watershed.’’.

6 SEC. 202. CONCURRENT MITIGATION.

7 Section 906(a)(1) of the Water Resources Develop8 ment Act of 1986 (33 U.S.C. 2283(a)(1)) is amended by

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

10 mitigation, the Secretary shall complete 50 percent of re11 quired mitigation before beginning project construction

12 and shall complete the remainder of required mitigation

13 as expeditiously as practicable and in no case later than

14 the last day of project construction.’’.

15 SEC. 203. MITIGATION TRACKING SYSTEM.

16 (a) IN GENERAL.—Not later than 6 months after the

17 date of enactment of this Act, the Secretary shall establish

18 a record-keeping system to track the following informa19 tion:

20 (1) The amount and type of wetlands and other

21 habitat types impacted by the operation and mainte22 nance of each water resources project carried out by

23 the Secretary.
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1 (2) The amount and type of mitigation required

2 for the operation and maintenance of each water re3 sources project carried out by the Secretary.

4 (3) The amount and type of mitigation that has

5 been completed for the operation and maintenance of

6 each water resources project carried out by the Sec7 retary.

8 (4) Wetland losses permitted under section 404

9 of the Federal Water Pollution Control Act (33

10 U.S.C. 1344) and required mitigation for such

11 losses.

12 (b) REQUIRED INFORMATION AND ORGANIZATION.—

13 The record-keeping system shall include information on

14 impacts and mitigation described in subsection (a) occur15 ring after 1969 and shall be organized by watershed,

16 project, permit application, and zip code.

17 (c) AVAILABILITY OF INFORMATION.—The Secretary

18 shall make information contained in the record-keeping

19 system available to the public on the Internet.

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