II 

109TH CONGRESS 

1ST SESSION S. 753 

To provide for modernization and improvement of the Corps of Engineers, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 11, 2005 

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 provide for modernization and improvement 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 2005’’. 

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. 
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TITLE I—MODERNIZING PROJECT PLANNING 

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—IMPROVING ACCOUNTABILITY 

Sec. 301. Fiscal Transparency Report. 

Sec. 302. Project deauthorizations. 

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; 
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1 (5) the human health, environmental, and social 

2 impacts of dams, levees, shoreline stabilization struc3 tures, river training structures, river dredging, and 

4 other Corps projects and activities must be ade5 quately considered and, in any case in which adverse 

6 impacts cannot be avoided, fully mitigated; 

7 (6) the National Academy of Sciences has con8 cluded that the Principles and Guidelines for water 

9 resources projects need to be modernized and up10 dated to reflect current economic practices and envi11 ronmental laws and planning guidelines; and 

12 (7) affected interests must have access to infor13 mation that will allow those interests to play a larg14 er and more effective role in the oversight of Corps 

15 project development and mitigation. 

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

17 (1) to ensure that the water resources invest18 ments of the United States are economically justified 

19 and enhance the environment; 

20 (2) to provide independent review of feasibility 

21 studies, general reevaluation studies, and environ22 mental impact statements of the Corps; 

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

24 cost-effective mitigation for Corps projects; 
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1 (4) to ensure appropriate local cost sharing to 

2 assist in efficient project planning focused on na3 tional needs; 

4 (5) to enhance the involvement of affected in5 terests in feasibility studies, general reevaluation 

6 studies, and environmental impact statements of the 

7 Corps; 

8 (6) to modernize planning principles of the 

9 Corps to meet the economic and environmental 

10 needs of riverside and coastal communities and the 

11 nation; 

12 (7) to ensure that environmental protection and 

13 restoration, and national economic development, are 

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

15 the evaluation, planning, and construction of Corps 

16 projects; 

17 (8) to ensure that project planning, project 

18 evaluations, and project recommendations of the 

19 Corps are based on sound science and economics and 

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

21 aquatic ecosystems; and 

22 (9) to ensure that the determination of benefits 

23 and costs of Corps projects properly reflects current 

24 law and Federal policies designed to protect human 

25 health and the environment. 
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1 SEC. 3. DEFINITIONS. 

2 In this Act: 

3 (1) ACADEMY.—The term ‘‘Academy’’ means 

4 the National Academy of Sciences. 

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

6 Corps of Engineers. 

7 (3) PRINCIPLES AND GUIDELINES.—The term 

8 ‘‘Principles and Guidelines’’ means the principles 

9 and guidelines of the Corps for water resources 

10 projects (consisting of Engineer Regulation 1105–2–

11 100 and Engineer Pamphlet 1165–2–1). 

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

13 the Secretary of the Army. 

14 TITLE I—MODERNIZING 

15 PROJECT PLANNING 

16 SEC. 101. MODERN PLANNING PRINCIPLES. 

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

18 Flood Control Act of 1970 (42 U.S.C. 1962–2) is amend19 ed to read as follows: 

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

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

22 that— 

23 ‘‘(1) national economic development and envi24 ronmental protection and restoration are co-equal 

25 objectives of water resources project planning and 

26 management; 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 2005, 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 through the 

25 restoration of hydrologic and geomorphic processes; 
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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 2005, 

22 the Corps shall develop, and update not less fre23 quently than every 4 years, an integrated, national 

24 plan to manage, rehabilitate and, if justified, mod25 ernize inland waterway and port infrastructure to 
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1 meet current national economic and environmental 

2 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. 1962d–17) is repealed. 

16 (2) Section 7(a) of the Department of Trans17 portation Act (Public Law 89–670; 80 Stat. 941) is 

18 repealed. 

19 SEC. 102. INDEPENDENT REVIEW. 

20 (a) DEFINITIONS.—In this section: 

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

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

23 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 the 60-day period beginning on the date of 

23 issuance of a final feasibility report de24 scribed in paragraph (1)(E) and ending on 
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1 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 a semi-colon; 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; and 

3 ‘‘(4) any projected benefit attributable to an in4 crease in direct Federal payments or subsidies.’’. 

5 SEC. 104. BENEFIT-COST RATIO. 

6 (a) RECOMMENDATION OF PROJECTS.—Beginning in 

7 fiscal year 2006, in the case of a water resources project 

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

9 may recommend the project for authorization by Congress, 

10 and may choose the project as a recommended alternative 

11 in any record of decision or environmental impact state12 ment, only if the project, in addition to meeting any other 

13 criteria required by law, has projected national benefits 

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

15 costs of the project, based on current discount rates pro16 vided by the Office of Management and Budget. 

17 (b) DEAUTHORIZATION OF PROJECTS.— 

18 (1) REPORT.—Not later than 180 days after 

19 the date of enactment of this Act, the Secretary 

20 shall submit to Congress a report identifying each 

21 water resources project (or separable element of 

22 such a project) that is subject to a benefit-cost anal23 ysis and authorized for construction, the projected 

24 remaining benefits of which are less than 1.5 times 

25 as great as the remaining projected costs. 
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1 (2) DEAUTHORIZATIONS.— 

2 (A) IN GENERAL.—Effective beginning on 

3 the date that is 3 years after the date of sub4 mission of the report under paragraph (1), any 

5 project identified in the report shall be de6 authorized unless the project was reauthorized 

7 by Congress during the preceding 3 years. 

8 (B) CONSTRUCTION IN PROGRESS.—If con9 struction (other than preconstruction engineer10 ing or design) began on or before the date of 

11 enactment of this Act for a project that is de12 authorized under subparagraph (A), the Sec13 retary may take such actions with respect to 

14 the project as the Secretary determines to be 

15 necessary to protect public health and safety 

16 and the environment. 

17 (c) PUBLIC NOTIFICATION.—The Secretary shall— 

18 (1) publish in the Federal Register the report 

19 under subsection (b)(1); and 

20 (2) make the report available to the public on 

21 the Internet. 

22 (d) FINAL DEAUTHORIZATION LIST.—The Secretary 

23 shall publish in the Federal Register a list of all projects 

24 deauthorized under this section. 
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1 SEC. 105. COST SHARING. 

2 (a) OPERATIONS AND MAINTENANCE OF INLAND

3 WATERWAYS.—Section 102 of the Water Resources De4 velopment Act of 1986 (33 U.S.C. 2212) is amended by 

5 striking subsections (b) and (c) and inserting the fol6 lowing: 

7 ‘‘(b) OPERATION AND MAINTENANCE.— 

8 ‘‘(1) FEDERAL SHARE.—The Federal share of 

9 the cost of operation and maintenance shall be 100 

10 percent in the case of— 

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

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

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

14 by section 844 that is allocated to inland navi15 gation. 

16 ‘‘(2) SOURCE OF FEDERAL SHARE.— 

17 ‘‘(A) FROM THE GENERAL FUND.—In the 

18 case of a project described in paragraph (1) or 

19 (2) of subsection (a) with respect to which the 

20 cost of operation and maintenance is less than 

21 or equal to 2 cents per ton mile, or in the case 

22 of the portion of the project authorized by sec23 tion 844 that is allocated to inland navigation, 

24 the Federal share under paragraph (1) shall be 

25 paid only from amounts appropriated from the 

26 general fund of the Treasury. 
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1 ‘‘(B) FROM THE GENERAL FUND AND IN2 LAND WATERWAYS TRUST FUND.—In the case 

3 of a project described in paragraph (1) or (2) 

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

5 of operation and maintenance is greater than 2 

6 but less than or equal to 10 cents per ton 

7 mile— 

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

9 under paragraph (1) shall be paid only 

10 from amounts appropriated from the gen11 eral fund of the Treasury; and 

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

13 under paragraph (1) shall be paid only 

14 from amounts appropriated from the In15 land Waterways Trust Fund. 

16 ‘‘(C) FROM THE INLAND WATERWAYS

17 TRUST FUND.—In the case of a project de18 scribed in paragraph (1) or (2) of subsection 

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

20 and maintenance is greater than 10 cents per 

21 ton mile but less than 30 cents per ton mile, 

22 100 percent of the Federal share under para23 graph (1) shall be paid only from amounts ap24 propriated from the Inland Waterways Trust 

25 Fund. 
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1 ‘‘(D) NON-FEDERAL RESPONSIBILITY.—In 

2 the case of a project described in paragraph (1) 

3 or (2) of subsection (a) with respect to which 

4 the cost of operation and maintenance is great5 er than 30 cents per ton-mile, the cost of oper6 ations and maintenance shall be a non-Federal 

7 responsibility.’’. 

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 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) by striking paragraph (1) and inserting the 

23 following: 

24 ‘‘(1) PROJECTS.— 
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1 ‘‘(A) IN GENERAL.—After November 17, 

2 1986, the Secretary shall not submit to Con3 gress any proposal for the authorization of any 

4 water resources project, and shall not choose a 

5 project alternative in any final record of deci6 sion, environmental impact statement, or envi7 ronmental assessment, unless the report con8 tains— 

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

10 losses of aquatic and terrestrial resources 

11 and fish and wildlife created by the 

12 project; or 

13 ‘‘(ii) a determination by the Secretary 

14 that the project will have negligible adverse 

15 impact on aquatic and terrestrial resources 

16 and fish and wildlife. 

17 ‘‘(B) SPECIFIC REQUIREMENTS.—Specific 

18 mitigation plans shall ensure that impacts to 

19 bottomland hardwood forests and other habitat 

20 types are mitigated in kind. 

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

22 this paragraph, the Secretary shall consult with 

23 appropriate Federal and non-Federal agen24 cies.’’; and 

25 (2) by adding at the end the following: 
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1 ‘‘(3) STANDARDS FOR MITIGATION.— 

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

3 losses to fish and wildlife resulting from a water 

4 resources project, the Secretary shall, at a min5 imum— 

6 ‘‘(i) acquire and restore 1 acre of su7 perior or equivalent habitat of the same 

8 type to replace each acre of habitat ad9 versely affected by the project; and 

10 ‘‘(ii) replace the hydrologic functions 

11 and characteristics, the ecological functions 

12 and characteristics, and the spatial dis13 tribution of the habitat adversely affected 

14 by the project. 

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

16 specific mitigation plan for a water resources 

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

18 minimum— 

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

20 monitor mitigation implementation and ec21 ological success, including the designation 

22 of the entities that will be responsible for 

23 monitoring; 

24 ‘‘(ii) specific ecological success criteria 

25 by which the mitigation will be evaluated 
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1 and determined to be successful, prepared 

2 in consultation with the United States 

3 Fish and Wildlife Service; 

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

5 and interests in land to be acquired for 

6 mitigation and the basis for a determina7 tion that land and interests are available 

8 for acquisition; 

9 ‘‘(iv) sufficient detail regarding the 

10 chosen mitigation sites and type and 

11 amount of restoration activities to permit a 

12 thorough evaluation of the plan’s likelihood 

13 of ecological success and resulting aquatic 

14 and terrestrial resource functions and 

15 habitat values; and 

16 ‘‘(v) a contingency plan for taking 

17 corrective actions if monitoring dem18 onstrates that mitigation efforts are not 

19 achieving ecological success as described in 

20 the ecological success criteria. 

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

22 mitigation monitoring or for the implementation 

23 and monitoring of contingency plan actions 

24 shall not be subject to the deadlines described 

25 in section 202. 
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1 ‘‘(4) DETERMINATION OF MITIGATION SUC2 CESS.— 

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

4 considered to be successful at the time at which 

5 monitoring demonstrates that the mitigation 

6 has met the ecological success criteria estab7 lished in the mitigation plan. 

8 ‘‘(B) REQUIREMENTS FOR SUCCESS.—To 

9 ensure the success of any attempted mitigation, 

10 the Secretary shall— 

11 ‘‘(i) consult yearly with the United 

12 States Fish and Wildlife Service on each 

13 water resources project requiring mitiga14 tion to determine whether mitigation moni15 toring for that project demonstrates that 

16 the project is achieving, or has achieved, 

17 ecological success; 

18 ‘‘(ii) ensure that implementation of 

19 the mitigation contingency plan for taking 

20 corrective action begins not later than 30 

21 days after a finding by the Secretary or 

22 the United States Fish and Wildlife Serv23 ice that the original mitigation efforts like24 ly will not result in, or have not resulted 

25 in, ecological success; 
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1 ‘‘(iii) complete implementation of the 

2 contingency plan as expeditiously as prac3 ticable; and 

4 ‘‘(iv) ensure that monitoring of miti5 gation efforts, including those implemented 

6 through a mitigation contingency plan, 

7 continues until the monitoring dem8 onstrates that the mitigation has met the 

9 ecological success criteria. 

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

11 Secretary shall not recommend a water resources 

12 project alternative or choose a project alternative in 

13 any final record of decision, environmental impact 

14 statement, or environmental assessment completed 

15 after the date of enactment of this paragraph unless 

16 the Secretary determines that the mitigation plan 

17 for the alternative will successfully mitigate the ad18 verse impacts of the project on aquatic and terres19 trial resources, hydrologic functions, and fish and 

20 wildlife. 

21 ‘‘(6) IMPLEMENTATION OF MITIGATION BEFORE

22 CONSTRUCTION OF NEW PROJECTS.—The Secretary 

23 shall implement all mitigation required by a record 

24 of decision for water resources projects in a par25 ticular district of the Corps before beginning phys-
34 

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1 ical construction of any new water resources project 

2 (or separable element of such a project) in that dis3 trict.’’. 

4 SEC. 202. CONCURRENT MITIGATION. 

5 Section 906(a) of the Water Resources Development 

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

7 (1) by striking ‘‘(a)(1) In the case’’ and insert8 ing the following: 

9 ‘‘(a) MITIGATION.— 

10 ‘‘(1) IN GENERAL.—In the case’’; 

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

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

13 the following: ‘‘interests shall be undertaken or ac14 quired— 

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

16 (other than such acquisition) commences; or 

17 ‘‘(B) concurrently with the acquisition of 

18 land and interests in land for project purposes 

19 (other than mitigation of fish and wildlife 

20 losses);’’; 

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

22 purposes’’ and inserting the following: 

23 ‘‘(2) COMMENCEMENT OF CONSTRUCTION.— 

24 For the purpose’’; and 

25 (4) by adding at the end the following: 
35 

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1 ‘‘(3) IMPLEMENTATION.— 

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

3 subparagraph (B), to ensure concurrent mitiga4 tion, the Secretary shall implement— 

5 ‘‘(i) 50 percent of required mitigation 

6 before beginning construction of a project; 

7 and 

8 ‘‘(ii) the remainder of required mitiga9 tion as expeditiously as practicable, but not 

10 later than the last day of construction of 

11 the project or separable element of the 

12 project. 

13 ‘‘(B) EXCEPTION FOR PHYSICAL IMPRAC14 TICABILITY.—In a case in which the Secretary 

15 determines that it is physically impracticable to 

16 complete mitigation by the last day of construc17 tion of the project or separable element of the 

18 project, the Secretary shall reserve or repro19 gram sufficient funds to ensure that mitigation 

20 implementation is completed as expeditiously as 

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

22 the next fiscal year immediately following the 

23 last day of that construction. 

24 ‘‘(4) USE OF FUNDS.—Funds made available 

25 for preliminary engineering and design, construction, 
36 

•S 753 IS

1 or operations and maintenance shall be available for 

2 use in carrying out this section.’’. 

3 SEC. 203. MITIGATION TRACKING SYSTEM. 

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

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

6 a recordkeeping system to track each water resources 

7 project constructed, operated, or maintained by the Sec8 retary, and for each permit issued under section 404 of 

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

10 1344)— 

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

12 habitat types affected by the project, project oper13 ation, or permitted activity; 

14 (2) the quantity and type of mitigation required 

15 for the project, project operation or permitted activ16 ity; 

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

18 been completed for the project, project operation or 

19 permitted activity; and 

20 (4) the status of monitoring for the mitigation 

21 carried out for the project, project operation or per22 mitted activity. 

23 (b) REQUIRED INFORMATION AND ORGANIZATION.— 

24 The recordkeeping system shall— 
37 

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1 (1) include information on impacts and mitiga2 tion described in subsection (a) that occur after De3 cember 31, 1969; and 

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

5 application, and zip code. 

6 (c) AVAILABILITY OF INFORMATION.—The Secretary 

7 shall make information contained in the recordkeeping 

8 system available to the public on the Internet. 

9 TITLE III—IMPROVING 

10 ACCOUNTABILITY 

11 SEC. 301. FISCAL TRANSPARENCY REPORT. 

12 (a) DEFINITIONS.—In this section: 

13 (1) CONSTRUCTION.—The term ‘‘construction’’ 

14 includes any physical work carried out under a con15 struction contract relating to a water resources 

16 project. 

17 (2) PHYSICAL WORK.—The term ‘‘physical 

18 work’’ does not include any activity relating to— 

19 (A) project planning; 

20 (B) project engineering and design; 

21 (C) relocation; or 

22 (D) the acquisition of land, an easement, 

23 or a right-of-way. 

24 (b) REPORT.— 
38 

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1 (1) IN GENERAL.—On the third Tuesday of 

2 January of each year beginning after the date of en3 actment of this Act, the Chief of Engineers shall 

4 submit to the Committee of Environment and Public 

5 Works of the Senate and the Committee on Trans6 portation and Infrastructure of the House of Rep7 resentatives a fiscal transparency report describ8 ing— 

9 (A) the expenditures of the Corps during 

10 the preceding fiscal year; 

11 (B) the estimated expenditures of the 

12 Corps for the fiscal year during which the re13 port is submitted; and 

14 (C) a list of projects that the Chief of En15 gineers expects to complete during the fiscal 

16 year during which the report is submitted. 

17 (2) CONTENTS.—In addition to the information 

18 described in paragraph (1), the report shall contain 

19 a detailed account of— 

20 (A) for each general construction project 

21 that is under construction on the date of sub22 mission of the report, or for which there is a 

23 signed cost-sharing agreement, complete infor24 mation regarding planning, engineering, and de25 sign of the project, including— 
39 

•S 753 IS

1 (i) the primary purpose of the project; 

2 (ii) each allocation made to the 

3 project on or before the date of submission 

4 of the report; 

5 (iii) a description of any construction 

6 carried out relating to the project; 

7 (iv) the projected date of completion 

8 of construction of the project; 

9 (v) the estimated annual Federal cost 

10 of completing construction of the project 

11 on or before the projected date under 

12 clause (iv); and 

13 (vi) the date of completion of the most 

14 recent feasibility study, reevaluation re15 port, and environmental review of the 

16 project; 

17 (B) for each general investigation and re18 connaissance and feasibility study, information 

19 including— 

20 (i) the number of studies initiated on 

21 or before the date of submission of the re22 port; 

23 (ii) the number of studies in progress 

24 on the date of submission of the report; 
40 

•S 753 IS

1 (iii) the number of studies expected to 

2 be completed during the fiscal year; and 

3 (iv) a list of any completed study of a 

4 project that is not authorized for construc5 tion on the date of submission of the re6 port, and the date of completion of the 

7 study; 

8 (C) for each inland and intracoastal water9 way operated and maintained under section 206 

10 of the Inland Waterways Revenue Act of 1978 

11 (33 U.S.C. 1804), information including— 

12 (i) the estimated annual cost of oper13 ating and maintaining the reach of the wa14 terway at the depth of the waterway; 

15 (ii) the actual cost of operating and 

16 maintaining the reach of the waterway at 

17 the depth of the waterway during the pre18 vious fiscal year; and 

19 (iii) the number of barges (including 

20 the number of loaded barges) and the total 

21 tonnage shipped over each waterway dur22 ing the preceding fiscal year; and 

23 (D) for each water resources project (or 

24 separable element of such a project) that is au25 thorized for construction, for which Federal 
41 

•S 753 IS

1 funds have not been obligated for construction 

2 during any of the 4 preceding fiscal years, in3 formation including— 

4 (i) the primary purpose of the project; 

5 (ii) the date of authorization of the 

6 project; 

7 (iii) each allocation made to the 

8 project on or before the date of submission 

9 of the report, including the amount and 

10 type of the allocation; 

11 (iv) the percentage of construction of 

12 the project that has been completed on the 

13 date of submission of the report; 

14 (v) the estimated cost of completing 

15 the project, and the percentage of esti16 mated total costs that has been obligated 

17 to the project on or before the date of sub18 mission of the report; 

19 (vi)(I) a benefit-cost analysis of the 

20 project, expressed as a ratio using current 

21 discount rates; 

22 (II) the estimated annual benefits and 

23 annual costs of the project; and 
42 

•S 753 IS

1 (III) the date on which any economic 

2 data used to justify the project was col3 lected; 

4 (vii) the date of completion of the 

5 most recent feasibility study, reevaluation 

6 report, and environmental review of the 

7 project; and 

8 (viii) a brief explanation of any reason 

9 why Federal funds have not been obligated 

10 for construction of the project. 

11 (c) CONGRESSIONAL AND PUBLIC NOTIFICATIONS.— 

12 On submission of a report under this section, the Sec13 retary shall notify each Senator in the State of whom, and 

14 each Member of the House of Representatives in the dis15 trict of whom, a project identified in the report is located. 

16 (d) PUBLICATION.—For any report under this sec17 tion, the Secretary shall— 

18 (1) publish the report in the Federal Register; 

19 and 

20 (2) make the report available to— 

21 (A) any person, on receipt of a request of 

22 the person; and 

23 (B) the public on the Internet. 
43 

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1 SEC. 302. PROJECT DEAUTHORIZATIONS. 

2 Section 1001 of the Water Resources Development 

3 Act of 1986 (33 U.S.C. 579a) is amended to read as fol4 lows: 

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

6 ‘‘(1) CONSTRUCTION.—The term ‘construction’ 

7 includes any physical work carried out under a con8 struction contract relating to a water resources 

9 project. 

10 ‘‘(2) PHYSICAL WORK.—The term ‘physical 

11 work’ does not include any activity relating to— 

12 ‘‘(A) project planning; 

13 ‘‘(B) project engineering and design; 

14 ‘‘(C) relocation; or 

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

16 or a right-of-way. 

17 ‘‘(b) DEAUTHORIZATIONS.— 

18 ‘‘(1) IN GENERAL.—Effective beginning on the 

19 date that is 30 months after the date of submission 

20 of a fiscal transparency report under section 301 of 

21 the Corps of Engineers Modernization and Improve22 ment Act of 2005, each project identified under sec23 tion 301(b)(2)(D) of that Act shall be deauthorized 

24 unless Federal funds were obligated for construction 

25 of the project during the preceding 30 months. 
44 

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1 ‘‘(2) EFFECT OF PARAGRAPH.—Paragraph (1) 

2 does not apply— 

3 ‘‘(A) in the case of a beach nourishment 

4 project, beginning on the date on which initial 

5 construction of the project is completed; or 

6 ‘‘(B) in the case of any other project, be7 ginning on the date on which construction of 

8 the project is completed. 

9 ‘‘(c) FINAL DEAUTHORIZATION LIST.—The Sec10 retary shall annually publish in the Federal Register a list 

11 of all projects deauthorized under this section.’’. 

Æ