II 

108TH CONGRESS 

2D SESSION S. 2188

To provide for reform of the Corps of Engineers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 10, 2004

Mr. FEINGOLD (for himself, Mr. MCCAIN and Mr. DASCHLE) introduced the 

following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL

To provide for reform of the Corps of Engineers, 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; TABLE OF CONTENTS. 

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

5 ‘‘Corps of Engineers Modernization and Improvement Act 

6 of 2004’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purposes. 

Sec. 3. Definitions. 

TITLE I—MODERNIZING PROJECT PLANNING 
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Sec. 101. Modern planning principles. 

Sec. 102. Independent review. 

Sec. 103. Benefit-cost analysis. 

Sec. 104. Benefit-cost ratio. 

Sec. 105. Cost sharing. 

TITLE II—MITIGATION 

Sec. 201. Full mitigation. 

Sec. 202. Concurrent mitigation. 

Sec. 203. Mitigation tracking system. 

TITLE III—ADDRESSING THE PROJECT BACKLOG 

Sec. 301. Project backlog. 

Sec. 302. Primary mission focus.

1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—Congress finds that— 

3 (1) the Corps of Engineers is the primary Fed4 eral agency responsible for developing and managing 

5 the harbors, waterways, shorelines, and water re6 sources of the United States; 

7 (2) the scarcity of Federal resources requires 

8 more efficient use of Corps resources and funding, 

9 and greater oversight of Corps analyses; 

10 (3) appropriate cost sharing ensures efficient 

11 measures of project demands and enables the Corps 

12 to meet more national project needs; 

13 (4) the significant demand for recreation, clean 

14 water, and healthy wildlife habitat must be fully re15 flected in the project planning and construction 

16 process of the Corps; 

17 (5) the human health, environmental, and social 

18 impacts of dams, levees, shoreline stabilization struc-
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1 tures, river training structures, river dredging, and 

2 other Corps projects and activities must be ade3 quately considered and, in any case in which adverse 

4 impacts cannot be avoided, fully mitigated; 

5 (6) the National Academy of Sciences has con6 cluded that the Principles and Guidelines for water 

7 resources projects need to be modernized and up8 dated to reflect current economic practices and envi9 ronmental laws and planning guidelines; and 

10 (7) affected interests must have access to infor11 mation that will allow those interests to play a larg12 er and more effective role in the oversight of Corps 

13 project development and mitigation. 

14 (b) PURPOSES.—The purposes of this Act are— 

15 (1) to ensure that the water resources invest16 ments of the United States are economically justified 

17 and enhance the environment; 

18 (2) to provide independent review of feasibility 

19 studies, general reevaluation studies, and environ20 mental impact statements of the Corps; 

21 (3) to ensure timely, ecologically successful, and 

22 cost-effective mitigation for Corps projects; 

23 (4) to ensure appropriate local cost sharing to 

24 assist in efficient project planning focused on na25 tional needs; 
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1 (5) to enhance the involvement of affected in2 terests in feasibility studies, general reevaluation 

3 studies, and environmental impact statements of the 

4 Corps; 

5 (6) to modernize planning principles of the 

6 Corps to meet the economic and environmental 

7 needs of riverside and coastal communities and the 

8 nation; 

9 (7) to ensure that environmental protection and 

10 restoration, and national economic development, are 

11 co-equal goals, and given co-equal emphasis, during 

12 the evaluation, planning, and construction of Corps 

13 projects; 

14 (8) to ensure that project planning, project 

15 evaluations, and project recommendations of the 

16 Corps are based on sound science and economics and 

17 on a full evaluation of the impacts to the health of 

18 aquatic ecosystems; and 

19 (9) to ensure that the determination of benefits 

20 and costs of Corps projects properly reflects current 

21 law and Federal policies designed to protect human 

22 health and the environment. 

23 SEC. 3. DEFINITIONS. 

24 In this Act: 
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1 (1) ACADEMY.—The term ‘‘Academy’’ means 

2 the National Academy of Sciences. 

3 (2) CORPS.—The term ‘‘Corps’’ means the 

4 Corps of Engineers. 

5 (3) PRINCIPLES AND GUIDELINES.—The term 

6 ‘‘Principles and Guidelines’’ means the principles 

7 and guidelines of the Corps for water resources 

8 projects (consisting of Engineer Regulation 1105–2–

9 100 and Engineer Pamphlet 1165–2–1). 

10 (4) SECRETARY.—The term ‘‘Secretary’’ means 

11 the Secretary of the Army. 

12 TITLE I—MODERNIZING 

13 PROJECT PLANNING 

14 SEC. 101. MODERN PLANNING PRINCIPLES. 

15 (a) PLANNING PRINCIPLES.—Section 209 of the 

16 Flood Control Act of 1970 (42 U.S.C. 1962–2) is amend17 ed to read as follows: 

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

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

20 that— 

21 ‘‘(1) national economic development and envi22 ronmental protection and restoration are co-equal 

23 goals of water resources project planning and man24 agement; and
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1 ‘‘(2) Federal agencies manage and, if clearly 

2 justified, construct water resource projects— 

3 ‘‘(A) to meet national economic needs; and 

4 ‘‘(B) to protect and restore the environ5 ment. 

6 ‘‘(b) REVISION OF PLANNING GUIDELINES, REGULA7 TIONS AND CIRCULARS.—Not later than 18 months after 

8 the date of enactment of the Corps of Engineers Mod9 ernization and Improvement Act of 2004, the Secretary, 

10 in collaboration with the National Academy of Sciences, 

11 shall develop proposed revisions of, and revise, the plan12 ning guidelines, regulations, and circulars of the Corps. 

13 ‘‘(c) ADDITIONAL REQUIREMENTS.—Corps planning 

14 regulations revised under subsection (b) shall— 

15 ‘‘(1) incorporate new and existing analytical 

16 techniques that reflect the probability of project ben17 efits and costs; 

18 ‘‘(2) apply discount rates provided by the Office 

19 of Management and Budget; 

20 ‘‘(3) eliminate biases and disincentives that dis21 courage the use of nonstructural approaches to 

22 water resources development and management; 

23 ‘‘(4) encourage, to the maximum extent prac24 ticable, the restoration of ecosystems; 
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1 ‘‘(5) consider the costs and benefits of pro2 tecting or degrading natural systems; 

3 ‘‘(6) ensure that projects are justified by bene4 fits that accrue to the public at large; 

5 ‘‘(7) ensure that benefit-cost calculations reflect 

6 a credible schedule for project construction; 

7 ‘‘(8) ensure that each project increment com8 plies with section 104; 

9 ‘‘(9) include as a cost any increase in direct 

10 Federal payments or subsidies and exclude as a ben11 efit any increase in direct Federal payments or sub12 sidies; and 

13 ‘‘(10) provide a mechanism by which, at least 

14 once every 5 years, the Secretary shall collaborate 

15 with the National Academy of Sciences to review, 

16 and if necessary, revise all planning regulations, 

17 guidelines, and circulars. 

18 ‘‘(d) NATIONAL NAVIGATION AND PORT PLAN.— 

19 ‘‘(1) IN GENERAL.—Not later than 18 months 

20 after the date of enactment of the Corps of Engi21 neers Modernization and Improvement Act of 2004, 

22 the Corps shall develop and annually update an inte23 grated, national plan to manage, rehabilitate and, if 

24 justified, modernize inland waterway and port infra-
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1 structure to meet current national economic and en2 vironmental needs. 

3 ‘‘(2) TOOLS.—To develop the plan, the Corps 

4 shall employ economic tools that— 

5 ‘‘(A) recognize the importance of alter6 native transportation destinations and modes; 

7 and 

8 ‘‘(B) employ practicable, cost-effective con9 gestion management alternatives before con10 structing and expanding infrastructure to in11 crease waterway and port capacity. 

12 ‘‘(3) BENEFITS AND PROXIMITY.—The Corps 

13 shall give particular consideration to the benefits 

14 and proximity of proposed and existing port, harbor, 

15 waterway, rail and other transportation infrastruc16 ture in determining whether to construct new water 

17 resources projects. 

18 ‘‘(e) NOTICE AND COMMENT.—The Secretary shall 

19 comply with the notice and comment provisions of chapter 

20 551 of title 5, United States Code, in issuing revised plan21 ning regulations, guidelines and circulars. 

22 ‘‘(f) APPLICABILITY.—On completion of the revisions 

23 required under this section, the Secretary shall apply the 

24 revised regulations to projects for which a draft feasibility 

25 study or draft reevaluation report has not yet been issued. 
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1 ‘‘(g) PROJECT REFORMULATION.—Projects of the 

2 Corps, and separable elements of projects of the Corps, 

3 that have been authorized for 10 years, but for which less 

4 than 15 percent of appropriations specifically identified 

5 for construction have been obligated, shall not be con6 structed unless a general reevaluation study demonstrates 

7 that the project or separable element meets— 

8 ‘‘(1) all project criteria and requirements appli9 cable at the time the study is initiated, including re10 quirements under this section; and 

11 ‘‘(2) cost share and mitigation requirements of 

12 this Act.’’. 

13 (b) CONFORMING AMENDMENTS.— 

14 (1) Section 80 of the Water Resources Develop15 ment Act of 1974 (42 U.S.C. 1962(d)–17) is re16 pealed. 

17 (2) Section 7(a) of the Department of Trans18 portation Act (Public Law 89–670; 80 Stat. 941) is 

19 repealed. 

20 SEC. 102. INDEPENDENT REVIEW. 

21 (a) DEFINITIONS.—In this section: 

22 (1) AFFECTED STATE.—The term ‘‘affected 

23 State’’, with respect to a water resources project, 

24 means a State or portion of a State that— 
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1 (A) is located, at least partially, within the 

2 drainage basin in which the project is carried 

3 out; and 

4 (B) would be economically or environ5 mentally affected as a result of the project. 

6 (2) DIRECTOR.—The term ‘‘Director’’ means 

7 the Director of Independent Review appointed under 

8 subsection (c)(1). 

9 (b) PROJECTS SUBJECT TO INDEPENDENT RE10 VIEW.— 

11 (1) IN GENERAL.—The Secretary shall ensure 

12 that each feasibility report, general reevaluation re13 port, and environmental impact statement for each 

14 water resources project described in paragraph (2) is 

15 subject to review by an independent panel of experts 

16 established under this section. 

17 (2) PROJECTS SUBJECT TO REVIEW.—A water 

18 resources project shall be subject to review under 

19 paragraph (1) if— 

20 (A) the project has an estimated total cost 

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

22 costs; 

23 (B) the Governor of an affected State re24 quests the establishment of an independent 

25 panel of experts for the project;
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1 (C) the head of a Federal agency charged 

2 with reviewing the project determines that the 

3 project is likely to have a significant adverse 

4 impact on environmental, cultural, or other re5 sources under the jurisdiction of the agency; or 

6 (D) the Secretary determines under para7 graph (3) that the project is controversial. 

8 (3) CONTROVERSIAL PROJECTS.— 

9 (A) IN GENERAL.—The Secretary shall de10 termine that a water resources project is con11 troversial for the purpose of paragraph (2)(D) 

12 if the Secretary finds that— 

13 (i) there is a significant dispute as to 

14 the size, nature, or effects of the project; 

15 (ii) there is a significant dispute as to 

16 the economic or environmental costs or 

17 benefits of the project; or 

18 (iii) there is a significant dispute as to 

19 the benefits to the communities affected by 

20 the project of a project alternative that— 

21 (I) was not the focus of the feasi22 bility report, general reevaluation re23 port, or environmental impact state24 ment for the project; or 
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1 (II) was not considered in the 

2 feasibility report, general reevaluation 

3 report, or environmental impact state4 ment for the project. 

5 (B) WRITTEN REQUESTS.—Not later than 

6 30 days after the date on which the Secretary 

7 receives a written request of any party, or on 

8 the initiative of the Secretary, the Secretary 

9 shall determine whether a project is controver10 sial. 

11 (c) DIRECTOR OF INDEPENDENT REVIEW.— 

12 (1) APPOINTMENT.—The Inspector General of 

13 the Army shall appoint in the Office of the Inspector 

14 General of the Army a Director of Independent Re15 view. 

16 (2) QUALIFICATIONS.—The Inspector General 

17 of the Army shall select the Director from among in18 dividuals who are distinguished experts in biology, 

19 hydrology, engineering, economics, or another dis20 cipline relating to water resources management. 

21 (3) LIMITATION ON APPOINTMENTS.—The In22 spector General of the Army shall not appoint an in23 dividual to serve as the Director if the individual has 

24 a financial interest in or close professional associa25 tion with any entity with a financial interest in a 
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1 water resources project that, on the date of appoint2 ment of the Director, is— 

3 (A) under construction; 

4 (B) in the preconstruction engineering and 

5 design phase; or 

6 (C) under feasibility or reconnaissance 

7 study by the Corps. 

8 (4) TERMS.— 

9 (A) IN GENERAL.—The term of a Director 

10 appointed under this subsection shall be 6 

11 years. 

12 (B) TERM LIMIT.—An individual may 

13 serve as the Director for not more than 2 non14 consecutive terms. 

15 (5) DUTIES.—The Director shall establish a 

16 panel of experts to review each water resources 

17 project that is subject to review under subsection 

18 (b). 

19 (d) ESTABLISHMENT OF PANELS.— 

20 (1) IN GENERAL.—After the Secretary selects a 

21 preferred alternative for a water resources project 

22 subject to review under subsection (b) in a formal 

23 draft feasibility report, draft general reevaluation re24 port, or draft environmental impact statement, the 
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1 Director shall establish a panel of experts to review 

2 the project. 

3 (2) MEMBERSHIP.—A panel of experts estab4 lished by the Director for a project shall be com5 posed of not less than 5 nor more than 9 inde6 pendent experts (including 1 or more biologists, hy7 drologists, engineers, and economists) who represent 

8 a range of areas of expertise. 

9 (3) LIMITATION ON APPOINTMENTS.—The Di10 rector shall not appoint an individual to serve on a 

11 panel of experts for a project if the individual has 

12 a financial interest in or close professional associa13 tion with any entity with a financial interest in the 

14 project. 

15 (4) CONSULTATION.—The Director shall con16 sult with the Academy in developing lists of individ17 uals to serve on panels of experts under this section. 

18 (5) NOTIFICATION.— 

19 (A) IN GENERAL.—To ensure that the Di20 rector is able to effectively carry out the duties 

21 of the Director under this section, the Secretary 

22 shall notify the Director in writing not later 

23 than 90 days before the release of a draft feasi24 bility report, draft general reevaluation report, 
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1 or draft environmental impact statement, for 

2 every water resources project. 

3 (B) CONTENTS.—The notification shall in4 clude— 

5 (i) the estimated cost of the project; 

6 and 

7 (ii) a preliminary assessment of 

8 whether a panel of experts may be re9 quired. 

10 (6) COMPENSATION.—An individual serving on 

11 a panel of experts under this section shall be com12 pensated at a rate of pay to be determined by the 

13 Inspector General of the Army. 

14 (7) TRAVEL EXPENSES.—A member of a panel 

15 of experts under this section shall be allowed travel 

16 expenses, including per diem in lieu of subsistence, 

17 at rates authorized for an employee of an agency 

18 under subchapter I of chapter 57 of title 5, United 

19 States Code, while away from the home or regular 

20 place of business of the member in the performance 

21 of the duties of the panel. 

22 (e) DUTIES OF PANELS.— 

23 (1) IN GENERAL.—A panel of experts estab24 lished for a water resources project under this sec25 tion shall—
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1 (A) review each draft feasibility report, 

2 draft general reevaluation report, and draft en3 vironmental impact statement prepared for the 

4 project; 

5 (B) assess the adequacy of the economic, 

6 scientific, and environmental models used by 

7 the Secretary in reviewing the project to ensure 

8 that— 

9 (i) the best available economic and 

10 scientific methods of analysis have been 

11 used; 

12 (ii) the best available economic, sci13 entific, and environmental data have been 

14 used; and 

15 (iii) any regional effects on navigation 

16 systems have been examined; 

17 (C) receive from the public written and 

18 oral comments concerning the project; 

19 (D) not later than the deadline established 

20 under subsection (f), submit to the Secretary a 

21 report concerning the economic, engineering, 

22 and environmental analyses of the project, in23 cluding the conclusions of the panel, with par24 ticular emphasis on areas of public controversy, 

25 with respect to the feasibility report, general re-
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1 evaluation report, or environmental impact 

2 statement; and 

3 (E) not later than 30 days after the date 

4 of issuance of a final feasibility report, final 

5 general reevaluation report, or final environ6 mental impact statement, submit to the Sec7 retary a brief report stating the views of the 

8 panel on the extent to which the final analysis 

9 adequately addresses issues or concerns raised 

10 by each earlier evaluation by the panel. 

11 (2) EXTENSIONS.— 

12 (A) IN GENERAL.—The panel may request 

13 from the Director a 30-day extension of the 

14 deadline established under paragraph (1)(E). 

15 (B) RECORD OF DECISION.—The Secretary 

16 shall not issue a record of decision until after, 

17 at the earliest— 

18 (i) the final day of the 30-day period 

19 described in paragraph (1)(E); or 

20 (ii) if the Director grants an extension 

21 under subparagraph (A), the final day of 

22 end of the 60-day period beginning on the 

23 date of issuance of a final feasibility report 

24 described in paragraph (1)(E) and ending 
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1 on the final day of the extension granted 

2 under subparagraph (A). 

3 (f) DURATION OF PROJECT REVIEWS.— 

4 (1) DEADLINE.—Except as provided in para5 graph (2), not later than 180 days after the date of 

6 establishment of a panel of experts for a water re7 sources project under this section, the panel shall 

8 complete— 

9 (A) each required review of the project; 

10 and 

11 (B) all other duties of the panel relating to 

12 the project (other than the duties described in 

13 subsection (e)(1)(E)). 

14 (2) EXTENSION OF DEADLINE FOR REPORT ON

15 PROJECT REVIEWS.—Not later than 240 days after 

16 the date of issuance of a draft feasibility report, 

17 draft general reevaluation report, or draft environ18 mental impact statement for a project, if a panel of 

19 experts submits to the Director before the end of the 

20 180-day period described in paragraph (1), and the 

21 Director approves, a request for a 60-day extension 

22 of the deadline established under that paragraph, 

23 the panel of experts shall submit to the Secretary a 

24 report required under subsection (e)(1)(D). 

25 (g) RECOMMENDATIONS OF PANEL.— 
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1 (1) CONSIDERATION BY SECRETARY.— 

2 (A) IN GENERAL.—If the Secretary re3 ceives a report on a water resources project 

4 from a panel of experts under this section by 

5 the applicable deadline under subsection 

6 (e)(1)(E) or (f), the Secretary shall, at least 14 

7 days before entering a final record of decision 

8 for the water resources project— 

9 (i) take into consideration any rec10 ommendations contained in the report; and 

11 (ii) prepare a written explanation for 

12 any recommendations not adopted. 

13 (B) INCONSISTENT RECOMMENDATIONS

14 AND FINDINGS.—Recommendations and find15 ings of the Secretary that are inconsistent with 

16 the recommendations and findings of a panel of 

17 experts under this section shall not be entitled 

18 to deference in a judicial proceeding. 

19 (2) PUBLIC REVIEW; SUBMISSION TO CON20 GRESS.—After receiving a report on a water re21 sources project from a panel of experts under this 

22 section (including a report under subsection 

23 (e)(1)(E)), the Secretary shall— 

24 (A) immediately make a copy of the report 

25 (and, in a case in which any written explanation 
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1 of the Secretary on recommendations contained 

2 in the report is completed, shall immediately 

3 make a copy of the response) available for pub4 lic review; and 

5 (B) include a copy of the report (and any 

6 written explanation of the Secretary) in any re7 port submitted to Congress concerning the 

8 project. 

9 (h) PUBLIC ACCESS TO INFORMATION.— 

10 (1) IN GENERAL.—Except as provided in para11 graph (3), the Secretary shall ensure that informa12 tion relating to the analysis of any water resources 

13 project by the Corps, including all supporting data, 

14 analytical documents, and information that the 

15 Corps has considered in the analysis, is made avail16 able— 

17 (A) to any individual upon request; 

18 (B) to the public on the Internet; and 

19 (C) to an independent review panel, if such 

20 a panel is established for the project. 

21 (2) TYPES OF INFORMATION.—Information con22 cerning a project that is available under paragraph 

23 (1) shall include—
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1 (A) any information that has been made 

2 available to the non-Federal interests with re3 spect to the project; and 

4 (B) all data and information used by the 

5 Corps in the justification and analysis of the 

6 project. 

7 (3) EXCEPTION FOR TRADE SECRETS.— 

8 (A) IN GENERAL.—The Secretary shall not 

9 make information available under paragraph 

10 (1) that the Secretary determines to be a trade 

11 secret of any person that provided the informa12 tion to the Corps. 

13 (B) CRITERIA FOR TRADE SECRETS.—The 

14 Secretary shall consider information to be a 

15 trade secret only if— 

16 (i) the person that provided the infor17 mation to the Corps— 

18 (I) has not disclosed the informa19 tion to any person other than— 

20 (aa) an officer or employee 

21 of the United States or a State 

22 or local government; 

23 (bb) an employee of the per24 son that provided the information 

25 to the Corps; or 
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1 (cc) a person that is bound 

2 by a confidentiality agreement; 

3 and 

4 (II) has taken reasonable meas5 ures to protect the confidentiality of 

6 the information and intends to con7 tinue to take the measures; 

8 (ii) the information is not required to 

9 be disclosed, or otherwise made available, 

10 to the public under any other Federal or 

11 State law; and 

12 (iii) disclosure of the information is 

13 likely to cause substantial harm to the 

14 competitive position of the person that pro15 vided the information to the Corps. 

16 (i) COSTS.— 

17 (1) LIMITATION ON COST OF REVIEW.—The 

18 cost of conducting a review of a water resources 

19 project under this section shall not exceed— 

20 (A) $250,000 for a project, if the total cost 

21 of the project in current year dollars is less 

22 than $50,000,000; and 

23 (B) 0.5 percent of the total cost of the 

24 project in current year dollars, if the total cost 

25 is $50,000,000 or more. 
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1 (2) TREATMENT.—The cost of conducting a re2 view of a project under this section shall be consid3 ered to be part of the total cost of the project. 

4 (3) COST SHARING.—A review of a project 

5 under this section shall be subject to section 105(a) 

6 of the Water Resources Development Act of 1986 

7 (33 U.S.C. 2215(a)). 

8 (4) WAIVER OF LIMITATION.—The Secretary 

9 may waive a limitation under paragraph (1) if the 

10 Secretary determines that the waiver is appropriate. 

11 (j) APPLICABILITY OF FEDERAL ADVISORY COM12 MITTEE ACT.—The Federal Advisory Committee Act (5 

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

14 under this section. 

15 SEC. 103. BENEFIT-COST ANALYSIS. 

16 Section 308(a) of the Water Resources Development 

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

18 (1) in paragraph (1)(B), by striking ‘‘and’’ at 

19 the end; 

20 (2) in paragraph (2), by striking the period at 

21 the end and inserting ‘‘; and’’; and 

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

23 ‘‘(3) any projected benefit attributable to any 

24 change in, or intensification of, land use arising 
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1 from the draining, reduction, or elimination of wet2 lands.’’. 

3 SEC. 104. BENEFIT-COST RATIO. 

4 (a) RECOMMENDATION OF PROJECTS.—Beginning in 

5 fiscal year 2004, in the case of a water resources project 

6 that is subject to a benefit-cost analysis, the Secretary 

7 may recommend the project for authorization by Congress, 

8 and may choose the project as a recommended alternative 

9 in any record of decision or environmental impact state10 ment, only if the project, in addition to meeting any other 

11 criteria required by law, has projected national benefits 

12 that are at least 1.5 times as great as the estimated total 

13 costs of the project, based on current discount rates pro14 vided by the Office of Management and Budget. 

15 (b) REVIEW AND DEAUTHORIZATION OF

16 PROJECTS.— 

17 (1) REVIEW.—Not later than 180 days after 

18 the date of enactment of this Act, the Secretary 

19 shall review each water resources project described 

20 in paragraph (2) to determine whether the projected 

21 benefits of the project are less than 1.5 times as 

22 great as the estimated total costs of the project. 

23 (2) PROJECTS SUBJECT TO REVIEW.—A water 

24 resources project shall be subject to review under 

25 paragraph (1) if— 
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1 (A) the project was authorized before the 

2 date on which the review is commenced; 

3 (B) the project is subject to a benefit-cost 

4 analysis; and 

5 (C) an amount that is less than 33 percent 

6 of the estimated total costs of the project (ex7 cluding costs of preconstruction engineering 

8 and design) has been obligated for the project. 

9 (3) DEAUTHORIZATIONS.— 

10 (A) IN GENERAL.—On completion of the 

11 review under paragraph (1), the Secretary shall 

12 submit to Congress a list that describes each 

13 water resources project the projected benefits of 

14 which are less than 1.5 times as great as the 

15 estimated total costs of the project. 

16 (B) PROJECTS.—A project included on the 

17 list under subparagraph (A) shall be deauthor18 ized effective beginning 3 years after the date 

19 of submission of the list to Congress unless, 

20 during that 3-year period, Congress reauthor21 izes the project. 

22 (4) DEAUTHORIZED PROJECTS FOR WHICH

23 CONSTRUCTION HAS BEEN COMMENCED.—In the 

24 case of a water resources project that is deauthor25 ized under paragraph (3) and for which construction
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1 (other than preconstruction engineering and design) 

2 has been commenced, the Secretary may take such 

3 actions as are necessary with respect to the project 

4 to protect public health and safety and the environ5 ment. 

6 SEC. 105. COST SHARING. 

7 (a) INLAND WATERWAYS.— 

8 (1) CONSTRUCTION.—Section 102(a) of the 

9 Water Resources Development Act of 1986 (33 

10 U.S.C. 2212(a)) is amended— 

11 (A) in the first sentence, by striking ‘‘One12 half of the costs of construction’’ and inserting 

13 ‘‘Forty-five percent of the costs of construc14 tion’’; and 

15 (B) by striking the second sentence and in16 serting ‘‘Fifty-five percent of those costs shall 

17 be paid only from amounts appropriated from 

18 the Inland Waterways Trust Fund.’’. 

19 (2) OPERATIONS AND MAINTENANCE.—Section 

20 102 of the Water Resources Development Act of 

21 1986 (33 U.S.C. 2212) is amended by striking sub22 sections (b) and (c) and inserting the following: 

23 ‘‘(b) OPERATION AND MAINTENANCE.— 
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1 ‘‘(1) FEDERAL SHARE.—The Federal share of 

2 the cost of operation and maintenance shall be 100 

3 percent in the case of— 

4 ‘‘(A) a project described in paragraph (1) 

5 or (2) of subsection (a); or 

6 ‘‘(B) the portion of the project authorized 

7 by section 844 that is allocated to inland navi8 gation. 

9 ‘‘(2) SOURCE OF FEDERAL SHARE.— 

10 ‘‘(A) GENERAL FUND.—In the case of a 

11 project described in paragraph (1) or (2) of 

12 subsection (a) with respect to which the cost of 

13 operation and maintenance is less than or equal 

14 to 2 cents per ton mile, or in the case of the 

15 portion of the project authorized by section 844 

16 that is allocated to inland navigation, the Fed17 eral share under paragraph (1) shall be paid 

18 only from amounts appropriated from the gen19 eral fund of the Treasury. 

20 ‘‘(B) GENERAL FUND AND INLAND WATER21 WAYS TRUST FUND.—In the case of a project 

22 described in paragraph (1) or (2) of subsection 

23 (a) with respect to which the cost of operation 

24 and maintenance is greater than 2 but less than 

25 or equal to 10 cents per ton mile— 
28

•S 2188 IS 

1 ‘‘(i) 75 percent of the Federal share 

2 under paragraph (1) shall be paid only 

3 from amounts appropriated from the gen4 eral fund of the Treasury; and 

5 ‘‘(ii) 25 percent of the Federal share 

6 under paragraph (1) shall be paid only 

7 from amounts appropriated from the In8 land Waterways Trust Fund. 

9 ‘‘(C) INLAND WATERWAYS TRUST FUND.—

10 In the case of a project described in paragraph 

11 (1) or (2) of subsection (a) with respect to 

12 which the cost of operation and maintenance is 

13 greater than 10 cents per ton mile but less than 

14 30 cents per ton mile, 100 percent of the Fed15 eral share under paragraph (1) shall be paid 

16 only from amounts appropriated from the In17 land Waterways Trust Fund. 

18 ‘‘(D) NON-FEDERAL RESPONSIBILITY.— 

19 ‘‘(i) IN GENERAL.—In the case of a 

20 project described in paragraph (1) or (2) 

21 of subsection (a) with respect to which the 

22 cost of operation and maintenance is great23 er than 30 cents per ton-mile, the cost of 

24 operations and maintenance shall be a non25 Federal responsibility. 
29

•S 2188 IS 

1 ‘‘(ii) DEAUTHORIZATION.—In a case 

2 in which the Secretary determines that the 

3 non-Federal interests for a project de4 scribed in clause (i) are unable to pay for 

5 the cost of operations and maintenance of 

6 the project, the project is deauthorized as 

7 of the date of that determination.’’. 

8 (b) FLOOD DAMAGE REDUCTION.—Section 103 of 

9 the Water Resources Development Act of 1986 (33 U.S.C. 

10 2213) is amended— 

11 (1) in subsections (a)(2) and (b), by striking 

12 ‘‘35’’ each place it appears and inserting ‘‘50’’; 

13 (2) in the paragraph heading of subsection 

14 (a)(2), by striking ‘‘35 PERCENT MINIMUM’’’ and in15 serting ‘‘MINIMUM’’’; and 

16 (3) in the paragraph heading of subsection (b), 

17 by striking ‘‘35’’ and inserting ‘‘50’’. 

18 (c) BEACH REPLACEMENT.—Section 103(d)(2)(A) of 

19 the Water Resources Development Act of 1986 (33 U.S.C. 

20 2213(d)(2)) is amended— 

21 (1) by redesignating subparagraphs (B) and 

22 (C) as subparagraphs (C) and (D), respectively; and 

23 (2) by inserting after subparagraph (A) the fol24 lowing: 
30

•S 2188 IS 

1 ‘‘(B) 2004 AND SUBSEQUENT PROJECTS.—

2 For any project authorized after the date of en3 actment of the Corps of Engineers Moderniza4 tion and Improvement Act of 2004, the non5 Federal cost of the periodic nourishment of the 

6 project, or any measure for shore protection or 

7 beach erosion control for the project, shall be 

8 65 percent.’’. 

9 TITLE II—MITIGATION 

10 SEC. 201. FULL MITIGATION. 

11 Section 906(d) of the Water Resources Development 

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

13 (1) by striking paragraph (1) and inserting the 

14 following: 

15 ‘‘(1) PROJECTS.— 

16 ‘‘(A) IN GENERAL.—After November 17, 

17 1986, the Secretary shall not submit to Con18 gress any proposal for the authorization of any 

19 water resources project, and shall not choose a 

20 project alternative in any final record of deci21 sion, environmental impact statement, or envi22 ronmental assessment, unless the report con23 tains— 

24 ‘‘(i) a specific plan to fully mitigate 

25 losses of aquatic and terrestrial resources
31

•S 2188 IS 

1 and fish and wildlife created by the 

2 project; or 

3 ‘‘(ii) a determination by the Secretary 

4 that the project will have negligible adverse 

5 impact on aquatic and terrestrial resources 

6 and fish and wildlife. 

7 ‘‘(B) SPECIFIC REQUIREMENTS.—Specific 

8 mitigation plans shall ensure that impacts to 

9 bottomland hardwood forests and other habitat 

10 types are mitigated in kind. 

11 ‘‘(C) CONSULTATION.—In carrying out 

12 this paragraph, the Secretary shall consult with 

13 appropriate Federal and non-Federal agen14 cies.’’; and 

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

16 ‘‘(3) STANDARDS FOR MITIGATION.— 

17 ‘‘(A) IN GENERAL.—To fully mitigate 

18 losses to fish and wildlife resulting from a water 

19 resources project, the Secretary shall, at a min20 imum— 

21 ‘‘(i) acquire and restore 1 acre of su22 perior or equivalent habitat of the same 

23 type to replace each acre of habitat ad24 versely affected by the project; and 
32

•S 2188 IS 

1 ‘‘(ii) replace the hydrologic functions 

2 and characteristics, the ecological functions 

3 and characteristics, and the spatial dis4 tribution of the habitat adversely affected 

5 by the project. 

6 ‘‘(B) DETAILED MITIGATION PLAN.—The 

7 specific mitigation plan for a water resources 

8 project under paragraph (1) shall include, at a 

9 minimum— 

10 ‘‘(i) a detailed and specific plan to 

11 monitor mitigation implementation and ec12 ological success, including the designation 

13 of the entities that will be responsible for 

14 monitoring; 

15 ‘‘(ii) specific ecological success criteria 

16 by which the mitigation will be evaluated 

17 and determined to be successful, prepared 

18 in consultation with the United States 

19 Fish and Wildlife Service; 

20 ‘‘(iii) a detailed description of the land 

21 and interests in land to be acquired for 

22 mitigation and the basis for a determina23 tion that land and interests are available 

24 for acquisition; 
33

•S 2188 IS 

1 ‘‘(iv) sufficient detail regarding the 

2 chosen mitigation sites and type and 

3 amount of restoration activities to permit a 

4 thorough evaluation of the plan’s likelihood 

5 of ecological success and resulting aquatic 

6 and terrestrial resource functions and 

7 habitat values; and 

8 ‘‘(v) a contingency plan for taking 

9 corrective actions if monitoring dem10 onstrates that mitigation efforts are not 

11 achieving ecological success as described in 

12 the ecological success criteria. 

13 ‘‘(C) APPLICABLE LAW.—A time period for 

14 mitigation monitoring or for the implementation 

15 and monitoring of contingency plan actions 

16 shall not be subject to the deadlines described 

17 in section 202. 

18 ‘‘(4) DETERMINATION OF MITIGATION SUC19 CESS.— 

20 ‘‘(A) IN GENERAL.—Mitigation shall be 

21 considered to be successful at the time at which 

22 monitoring demonstrates that the mitigation 

23 has met the ecological success criteria estab24 lished in the mitigation plan. 
34

•S 2188 IS 

1 ‘‘(B) REQUIREMENTS FOR SUCCESS.—To 

2 ensure the success of any attempted mitigation, 

3 the Secretary shall— 

4 ‘‘(i) consult yearly with the United 

5 States Fish and Wildlife Service on each 

6 water resources project requiring mitiga7 tion to determine whether mitigation moni8 toring for that project demonstrates that 

9 the project is achieving, or has achieved, 

10 ecological success; 

11 ‘‘(ii) ensure that implementation of 

12 the mitigation contingency plan for taking 

13 corrective action begins not later than 30 

14 days after a finding by the Secretary or 

15 the United States Fish and Wildlife Serv16 ice that the original mitigation efforts like17 ly will not result in, or have not resulted 

18 in, ecological success; 

19 ‘‘(iii) complete implementation of the 

20 contingency plan as expeditiously as prac21 ticable; and 

22 ‘‘(iv) ensure that monitoring of miti23 gation efforts, including those implemented 

24 through a mitigation contingency plan, 

25 continues until the monitoring dem-
35

•S 2188 IS 

1 onstrates that the mitigation has met the 

2 ecological success criteria. 

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

4 Secretary shall not recommend a water resources 

5 project alternative or choose a project alternative in 

6 any final record of decision, environmental impact 

7 statement, or environmental assessment completed 

8 after the date of enactment of this paragraph unless 

9 the Secretary determines that the mitigation plan 

10 for the alternative will successfully mitigate the ad11 verse impacts of the project on aquatic and terres12 trial resources, hydrologic functions, and fish and 

13 wildlife. 

14 ‘‘(6) COMPLETION OF MITIGATION BEFORE

15 CONSTRUCTION OF NEW PROJECTS.—The Secretary 

16 shall complete all promised mitigation for water re17 sources projects in a particular watershed before 

18 constructing any new water resources project in that 

19 watershed.’’. 

20 SEC. 202. CONCURRENT MITIGATION. 

21 Section 906(a) of the Water Resources Development 

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

23 (1) by striking ‘‘(a)(1) In the case’’ and insert24 ing the following: 

25 ‘‘(a) MITIGATION.—
36

•S 2188 IS 

1 ‘‘(1) IN GENERAL.—In the case’’; 

2 (2) in paragraph (1), by striking ‘‘interests—’’ 

3 and all that follows through ‘‘losses),’’ and inserting 

4 the following: ‘‘interests shall be undertaken or ac5 quired— 

6 ‘‘(A) before any construction of the project 

7 (other than such acquisition) commences; or 

8 ‘‘(B) concurrently with the acquisition of 

9 land and interests in land for project purposes 

10 (other than mitigation of fish and wildlife 

11 losses);’’; 

12 (3) in paragraph (2), by striking ‘‘(2) For the 

13 purposes’’ and inserting the following: 

14 ‘‘(2) COMMENCEMENT OF CONSTRUCTION.—

15 For the purpose’’; and 

16 (4) by adding at the end the following: 

17 ‘‘(4) IMPLEMENTATION.— 

18 ‘‘(A) IN GENERAL.—Except as provided in 

19 subparagraph (B), to ensure concurrent mitiga20 tion, the Secretary shall implement— 

21 ‘‘(i) 50 percent of required mitigation 

22 before beginning construction of a project; 

23 and 

24 ‘‘(ii) the remainder of required mitiga25 tion as expeditiously as practicable, but not 
37

•S 2188 IS 

1 later than the last day of construction of 

2 the project or separable element of the 

3 project. 

4 ‘‘(B) EXCEPTION FOR PHYSICAL IMPRAC5 TICABILITY.—In a case in which the Secretary 

6 determines that it is physically impracticable to 

7 complete mitigation by the last day of construc8 tion of the project or separable element of the 

9 project, the Secretary shall reserve or repro10 gram sufficient funds to ensure that mitigation 

11 implementation is completed as expeditiously as 

12 practicable, but in no case later than the end of 

13 the next fiscal year immediately following the 

14 last day of that construction. 

15 ‘‘(5) USE OF FUNDS.—Funds made available 

16 for preliminary engineering and design, construction, 

17 or operations and maintenance shall be available for 

18 use in carrying out this section.’’. 

19 SEC. 203. MITIGATION TRACKING SYSTEM. 

20 (a) IN GENERAL.—Not later than 180 days after the 

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

22 a recordkeeping system to track each water resources 

23 project constructed, operated, or maintained by the Sec24 retary, and for each permit issued under section 404 of 
38

•S 2188 IS 

1 the Federal Water Pollution Control Act (33 U.S.C. 

2 1344)— 

3 (1) the quantity and type of wetland and other 

4 habitat types affected by the project, project oper5 ation, or permitted activity; 

6 (2) the quantity and type of mitigation required 

7 for the project, project operation or permitted activ8 ity; 

9 (3) the quantity and type of mitigation that has 

10 been completed for the project, project operation or 

11 permitted activity; and 

12 (4) the status of monitoring for the mitigation 

13 carried out for the project, project operation or per14 mitted activity. 

15 (b) REQUIRED INFORMATION AND ORGANIZATION.—

16 The recordkeeping system shall— 

17 (1) include information on impacts and mitiga18 tion described in subsection (a) that occur after De19 cember 31, 1969; and 

20 (2) be organized by watershed, project, permit 

21 application, and zip code. 

22 (c) AVAILABILITY OF INFORMATION.—The Secretary 

23 shall make information contained in the recordkeeping 

24 system available to the public on the Internet. 
39

•S 2188 IS 

1 TITLE III—ADDRESSING THE 

2 PROJECT BACKLOG 

3 SEC. 301. PROJECT BACKLOG. 

4 (a) REVIEW AND REPORT ON WATER RESOURCES

5 CONSTRUCTION BACKLOG.— 

6 (1) DEFINITIONS.—In this subsection: 

7 (A) ACTIVE.—The term ‘‘active’’, with re8 spect to a project, means that— 

9 (i) the project is economically justi10 fied; 

11 (ii) the project has received funding 

12 for— 

13 (I) preconstruction engineering 

14 and design; or 

15 (II) construction; and 

16 (iii) the non-Federal interests with re17 spect to the project have demonstrated 

18 willingness and the ability to provide the 

19 required non-Federal share. 

20 (B) DEFERRED.—The term ‘‘deferred’’, 

21 with respect to a project, means that the 

22 project— 

23 (i) has doubtful economic justification; 

24 (ii) requires reevaluation to determine 

25 the economic feasibility of the project; or 
40

•S 2188 IS 

1 (iii) is a project for which the non2 Federal interests are unable to provide re3 quired cooperation. 

4 (C) INACTIVE.—The term ‘‘inactive’’, with 

5 respect to a project, means that— 

6 (i) the project is not economically jus7 tified; 

8 (ii) the project no longer meets cur9 rent and prospective needs as described in 

10 a feasibility report or general reevaluation 

11 report; 

12 (iii) the non-Federal interests with re13 spect to the project have not demonstrated 

14 willingness or the ability to provide the re15 quired non-Federal share; or 

16 (iv)(I) the project most recently re17 ceived, under an Act of Congress, author18 ization or reauthorization of construction 

19 more than 25 years before the date of en20 actment of this Act; and 

21 (II) an amount that is less than 33 

22 percent of the estimated total costs of the 

23 project (excluding costs of preconstruction 

24 engineering and design) has been obligated
41

•S 2188 IS 

1 for the project as of the date of enactment 

2 of this Act. 

3 (D) PROJECT.—The term ‘‘project’’ means 

4 a water resources project, or a separable ele5 ment of a water resources project, that is au6 thorized by law for funding from— 

7 (i) the Construction, General, appro8 priations account; or 

9 (ii) the construction portion of the 

10 Flood Control, Mississippi River and Trib11 utaries, appropriations account. 

12 (2) STUDY.— 

13 (A) IN GENERAL.—Not later than 1 year 

14 after the date of enactment of this Act, the Sec15 retary shall submit to the Committee on Envi16 ronment and Public Works of the Senate and 

17 the Committee on Transportation and Infra18 structure of the House of Representatives a 

19 study consisting of— 

20 (i) the list described in subparagraph 

21 (B); and 

22 (ii) the information described in sub23 paragraph (C). 
42

•S 2188 IS 

1 (B) LIST.—The list referred to in subpara2 graph (A) is a list of all authorized water re3 sources projects— 

4 (i) that have not been commenced; or 

5 (ii) the construction of which has not 

6 been completed. 

7 (C) REQUIRED INFORMATION.—Each 

8 project on the list described in subparagraph 

9 (B) shall be accompanied by information on— 

10 (i) the primary purpose of the project; 

11 (ii) the year in which construction of 

12 the project was commenced; 

13 (iii) the total estimated cost of the 

14 project in current year dollars; 

15 (iv) the benefit-cost ratio of the 

16 project, determined based on current dis17 count rates; 

18 (v) the estimated annual benefits and 

19 annual costs of the project; 

20 (vi) the remaining additional benefits 

21 and the remaining additional costs to com22 plete construction of the project (including 

23 the ratio that remaining benefits bear to 

24 remaining costs); 
43

•S 2188 IS 

1 (vii)(I) the year during which the 

2 most recent major studies of the feasibility 

3 and design of the project were completed; 

4 and 

5 (II) the year during which the most 

6 recent environmental impact statement or 

7 environmental assessment for the project 

8 was completed; 

9 (viii) the date of the last year for 

10 which economic data that was included in 

11 the most recent analysis of the feasibility 

12 and justification of the project was col13 lected; 

14 (ix) the status of each project as— 

15 (I) reconnaissance, 

16 preconstruction engineering and de17 sign, or construction; and 

18 (II) active, deferred, or inactive; 

19 and 

20 (x) the information described in para21 graph (3) for each particular type of 

22 project. 

23 (3) INFORMATION FOR PARTICULAR PROJECT

24 TYPE.—The study under paragraph (2) shall in25 clude— 
44

•S 2188 IS 

1 (A) in the case of a flood damage reduc2 tion project— 

3 (i) the extent to which the project re4 flects national flood damage reduction pri5 orities as established by the Federal Emer6 gency Management Agency; 

7 (ii)(I) the level of flood protection pro8 vided; and 

9 (II) to the maximum extent prac10 ticable, the extent to which the project is 

11 based on projected growth and the basis 

12 for each projection of growth; and 

13 (iii) the extent to which the project— 

14 (I) restores natural aquatic eco15 system functions; and 

16 (II) avoids adverse environmental 

17 impacts and risk before implementa18 tion of mitigation activities; 

19 (B) in the case of a navigation project— 

20 (i)(I) the extent to which the economic 

21 benefits of the project are based on exist22 ing levels of commercial traffic rather than 

23 projected growth in commercial traffic; and 

24 (II) to the maximum extent prac25 ticable, the extent to which the project is 
45

•S 2188 IS 

1 based on projected growth and the basis 

2 for each projection of growth; and 

3 (ii) the extent of the likely environ4 mental benefits of the project, including 

5 the extent of— 

6 (I) remediation of contaminated 

7 sediments, or reuse of dredged mate8 rial, to restore aquatic habitat; and 

9 (II) adverse environmental im10 pacts and risks of the project; and 

11 (C) in the case of an environmental res12 toration project— 

13 (i) the extent to which the project— 

14 (I) restores natural hydrologic 

15 processes and the spatial extent of 

16 aquatic habitat; and 

17 (II) otherwise produces self-sus18 taining environmental benefits; and 

19 (ii) the extent to which the project ad20 dresses critical national conservation prior21 ities, including preservation and protection 

22 of endangered and threatened species or 

23 habitat of endangered and threatened spe24 cies. 

25 (4) MEASUREMENT AND REPORTING.— 
46

•S 2188 IS 

1 (A) IN GENERAL.—The Secretary shall use 

2 objective and quantifiable standards for meas3 uring and reporting the information required to 

4 be submitted under paragraph (3). 

5 (B) ALTERNATIVE METHOD OF REPORT6 ING.—In any case in which the information re7 quired to be submitted under subparagraph 

8 (B)(ii) or (C) of paragraph (3) cannot be quan9 tified, the information shall be reported through 

10 an objective description of the benefits and im11 pacts of the applicable project. 

12 (5) AVAILABILITY TO THE PUBLIC.—The study 

13 submitted to Congress under paragraph (2) shall be 

14 made available to— 

15 (A) any person on request; and 

16 (B) the public on the Internet. 

17 (b) PROJECT DEAUTHORIZATIONS.—Section 1001 of 

18 the Water Resources Development Act of 1986 (33 U.S.C. 

19 579a) is amended to read as follows: 

20 ‘‘SEC. 1001. PROJECT DEAUTHORIZATIONS. 

21 ‘‘(a) DEFINITIONS.—In this section: 

22 ‘‘(1) CONSTRUCTION OF A PROJECT.—The term 

23 ‘construction of a project’ means— 

24 ‘‘(A) with respect to a flood control 

25 project—
47

•S 2188 IS 

1 ‘‘(i) the acquisition of land, an ease2 ment, or a right-of-way; or 

3 ‘‘(ii) the performance of physical work 

4 under a construction contract; 

5 ‘‘(B) with respect to an environmental pro6 tection and restoration project— 

7 ‘‘(i) the acquisition of land, an ease8 ment, or a right-of-way primarily to facili9 tate the restoration of wetland or similar 

10 habitat; or 

11 ‘‘(ii) the performance of physical work 

12 under a construction contract— 

13 ‘‘(I) to modify an existing project 

14 facility; or 

15 ‘‘(II) to construct a new environ16 mental protection or restoration meas17 ure; 

18 ‘‘(C) with respect to a shore protection 

19 project— 

20 ‘‘(i) the acquisition of land, an ease21 ment, or a right-of-way; or 

22 ‘‘(ii) the performance of physical work 

23 under a construction contract for a struc24 tural or a nonstructural measure; and 
48

•S 2188 IS 

1 ‘‘(D) with respect to any project that is 

2 not described in subparagraph (A), (B), or (C), 

3 the performance of physical work under a con4 struction contract. 

5 ‘‘(2) INACTIVE.—The term ‘inactive’, with re6 spect to a project, means that— 

7 ‘‘(A) the project is not economically justi8 fied; 

9 ‘‘(B) the project no longer meets current 

10 and prospective needs as described in a feasi11 bility report or general reevaluation report; 

12 ‘‘(C) the non-Federal interests with respect 

13 to the project have not demonstrated willing14 ness or the ability to provide the required non15 Federal share; or 

16 ‘‘(D)(i) the project most recently received, 

17 under an Act of Congress, authorization or re18 authorization for construction more than 25 

19 years before the date of enactment of this sub20 paragraph; and 

21 ‘‘(ii) an amount that is less than 33 per22 cent of the estimated total costs of the project 

23 (excluding costs of preconstruction engineering 

24 and design) has been obligated for the project 
49

•S 2188 IS 

1 as of the date of enactment of this subpara2 graph. 

3 ‘‘(3) PHYSICAL WORK UNDER A CONSTRUCTION

4 CONTRACT.—The term ‘physical work under a con5 struction contract’ does not include any activity re6 lating to— 

7 ‘‘(A) project planning; 

8 ‘‘(B) engineering and design; 

9 ‘‘(C) relocation; or 

10 ‘‘(D) the acquisition of land, an easement, 

11 or a right-of-way. 

12 ‘‘(4) PROJECT.—The term ‘project’ means a 

13 water resources project, or a separable element of a 

14 water resources project, that is authorized by law for 

15 funding from— 

16 ‘‘(A) the Construction, General, appropria17 tions account; or 

18 ‘‘(B) the construction portion of the Flood 

19 Control, Mississippi River and Tributaries, ap20 propriations account. 

21 ‘‘(b) INACTIVE PROJECTS.— 

22 ‘‘(1) LIST.—Not later than December 31, 2004, 

23 and biennially thereafter, the Secretary shall submit 

24 to Congress a list of inactive projects. 
50

•S 2188 IS 

1 ‘‘(2) DEAUTHORIZATION.—An inactive project 

2 shall be deauthorized effective beginning 1 year after 

3 the date of submission of a list under paragraph (1) 

4 that includes the project unless, during that 1-year 

5 period, Congress reauthorizes the project in accord6 ance with the Corps of Engineers Modernization and 

7 Improvement Act of 2004 and the amendments 

8 made by that Act. 

9 ‘‘(c) PROJECTS FOR WHICH ACTUAL CONSTRUCTION

10 HAS NOT BEGUN.— 

11 ‘‘(1) LIST.—The Secretary shall annually sub12 mit to Congress a list of projects that have been au13 thorized for construction, but for which no actual 

14 construction has begun and no Federal funds have 

15 been obligated for construction during the 3 con16 secutive fiscal years preceding the fiscal year in 

17 which the list is submitted. 

18 ‘‘(2) DEAUTHORIZATION.—A project authorized 

19 for construction that is not subject to subsection (b) 

20 shall be deauthorized effective beginning 5 years 

21 after the date of the most recent authorization or re22 authorization of the project unless, during that 5-

23 year period, Federal funds are obligated for con24 struction of the project. 
51

•S 2188 IS 

1 ‘‘(d) PROJECTS FOR WHICH CONSTRUCTION HAS

2 BEEN SUSPENDED.— 

3 ‘‘(1) LIST.—The Secretary shall annually sub4 mit to Congress a list of projects— 

5 ‘‘(A) that have been authorized for con6 struction; and 

7 ‘‘(B) for which no Federal funds have been 

8 obligated for construction during the 2 consecu9 tive fiscal years preceding the date of submis10 sion of the list. 

11 ‘‘(2) DEAUTHORIZATION.—A project that is not 

12 subject to subsection (b) but for which Federal 

13 funds have been obligated for construction of the 

14 project shall be deauthorized if Federal funds appro15 priated specifically for construction of the project, as 

16 indicated in an Act of Congress or in accompanying 

17 legislative report language, are not obligated for con18 struction of the project during the period of 3 fiscal 

19 years following the last fiscal year in which Federal 

20 funds were obligated for construction of the project. 

21 ‘‘(e) COMPLETED PROJECTS.—Subsections (b), (c), 

22 and (d) shall not apply— 

23 ‘‘(1) in the case of a beach nourishment project, 

24 after initial construction of the project has been 

25 completed; or
52

•S 2188 IS 

1 ‘‘(2) in the case of any other project, after con2 struction of the project has been completed. 

3 ‘‘(f) CONGRESSIONAL NOTIFICATIONS.—On submis4 sion of a list under subsection (b), (c), or (d), the Sec5 retary shall notify each Senator in whose State, and each 

6 Member of the House of Representatives in whose district, 

7 a project on the list is or would be located. 

8 ‘‘(g) FINAL DEAUTHORIZATION LIST.—The Sec9 retary shall annually publish in the Federal Register a list 

10 of all projects deauthorized under subsections (b), (c), and 

11 (d).’’. 

12 (c) WATERWAYS.— 

13 (1) REPORT BY ACADEMY.— 

14 (A) IN GENERAL.—Not later than 1 year 

15 after the date of enactment of this Act, the Sec16 retary shall enter into a contract with the Acad17 emy to prepare a report on waterways in the 

18 Inland Waterways System. 

19 (B) CONTENTS OF REPORT.—The report 

20 shall— 

21 (i) review the Inland Waterways Sys22 tem; 

23 (ii) provide data on the commercial 

24 traffic being carried by each waterway in 

25 the System as of the date of the report; 
53

•S 2188 IS 

1 (iii) provide an analysis of the extent 

2 to which prior projections of the commer3 cial traffic carried by each waterway in the 

4 System were accurate; and 

5 (iv) based on the information provided 

6 under clauses (ii) and (iii)— 

7 (I) identify underused waterways 

8 in the System; 

9 (II) propose new economic and 

10 environmental uses for underused wa11 terways; 

12 (III) describe statutory and ad13 ministrative reforms that are needed 

14 to ease the transition from the current 

15 authorized uses of the System to new 

16 economic and environmental uses of 

17 the System; and 

18 (IV) recommend which water19 ways in the System should be decom20 missioned. 

21 (2) DECOMMISSIONING MECHANISM FOR

22 UNDERUSED WATERWAYS.—Not later than 1 year 

23 after the date of enactment of this Act, the Sec24 retary shall by regulation establish a mechanism for 

25 the decommissioning of waterways that— 
54

•S 2188 IS 

1 (A) are no longer economically justified, 

2 based on commercial traffic and current dis3 count rates; or 

4 (B) are no longer in the national interest. 

5 SEC. 302. PRIMARY MISSION FOCUS. 

6 Any water resources project that does not have as 

7 a primary project purpose 1 of the primary Corps missions 

8 of environmental protection, flood control, or navigation 

9 and that, as of the date of enactment of this section, has 

10 no appropriated construction funding, is deauthorized.

Æ