```

[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 753 Introduced in Senate (IS)]

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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Corps of Engineers 
Modernization and Improvement Act of 2005''.
    (b) Table of Contents.--The table of contents of 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

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.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the Corps of Engineers is the primary Federal agency 
        responsible for developing and managing the harbors, waterways, 
        shorelines, and water resources of the United States;
            (2) the scarcity of Federal resources requires more 
        efficient use of Corps resources and funding, and greater 
        oversight of Corps analyses;
            (3) appropriate cost sharing ensures efficient measures of 
        project demands and enables the Corps to meet more national 
        project needs;
            (4) the significant demand for recreation, clean water, and 
        healthy wildlife habitat must be fully reflected in the project 
        planning and construction process of the Corps;
            (5) the human health, environmental, and social impacts of 
        dams, levees, shoreline stabilization structures, river 
        training structures, river dredging, and other Corps projects 
        and activities must be adequately considered and, in any case 
        in which adverse impacts cannot be avoided, fully mitigated;
            (6) the National Academy of Sciences has concluded that the 
        Principles and Guidelines for water resources projects need to 
        be modernized and updated to reflect current economic practices 
        and environmental laws and planning guidelines; and
            (7) affected interests must have access to information that 
        will allow those interests to play a larger and more effective 
        role in the oversight of Corps project development and 
        mitigation.
    (b) Purposes.--The purposes of this Act are--
            (1) to ensure that the water resources investments of the 
        United States are economically justified and enhance the 
        environment;
            (2) to provide independent review of feasibility studies, 
        general reevaluation studies, and environmental impact 
        statements of the Corps;
            (3) to ensure timely, ecologically successful, and cost-
        effective mitigation for Corps projects;
            (4) to ensure appropriate local cost sharing to assist in 
        efficient project planning focused on national needs;
            (5) to enhance the involvement of affected interests in 
        feasibility studies, general reevaluation studies, and 
        environmental impact statements of the Corps;
            (6) to modernize planning principles of the Corps to meet 
        the economic and environmental needs of riverside and coastal 
        communities and the nation;
            (7) to ensure that environmental protection and 
        restoration, and national economic development, are co-equal 
        goals, and given co-equal emphasis, during the evaluation, 
        planning, and construction of Corps projects;
            (8) to ensure that project planning, project evaluations, 
        and project recommendations of the Corps are based on sound 
        science and economics and on a full evaluation of the impacts 
        to the health of aquatic ecosystems; and
            (9) to ensure that the determination of benefits and costs 
        of Corps projects properly reflects current law and Federal 
        policies designed to protect human health and the environment.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Academy.--The term ``Academy'' means the National 
        Academy of Sciences.
            (2) Corps.--The term ``Corps'' means the Corps of 
        Engineers.
            (3) Principles and guidelines.--The term ``Principles and 
        Guidelines'' means the principles and guidelines of the Corps 
        for water resources projects (consisting of Engineer Regulation 
        1105-2-100 and Engineer Pamphlet 1165-2-1).
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.

                 TITLE I--MODERNIZING PROJECT PLANNING

SEC. 101. MODERN PLANNING PRINCIPLES.

    (a) Planning Principles.--Section 209 of the Flood Control Act of 
1970 (42 U.S.C. 1962-2) is amended to read as follows:

``SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

    ``(a) In General.--It is the intent of Congress that--
            ``(1) national economic development and environmental 
        protection and restoration are co-equal objectives of water 
        resources project planning and management; and
            ``(2) Federal agencies manage and, if clearly justified, 
        construct water resource projects--
                    ``(A) to meet national economic needs; and
                    ``(B) to protect and restore the environment.
    ``(b) Revision of Planning Guidelines, Regulations and Circulars.--
Not later than 18 months after the date of enactment of the Corps of 
Engineers Modernization and Improvement Act of 2005, the Secretary, in 
collaboration with the National Academy of Sciences, shall develop 
proposed revisions of, and revise, the planning guidelines, 
regulations, and circulars of the Corps.
    ``(c) Additional Requirements.--Corps planning regulations revised 
under subsection (b) shall--
            ``(1) incorporate new and existing analytical techniques 
        that reflect the probability of project benefits and costs;
            ``(2) apply discount rates provided by the Office of 
        Management and Budget;
            ``(3) eliminate biases and disincentives that discourage 
        the use of nonstructural approaches to water resources 
        development and management;
            ``(4) encourage, to the maximum extent practicable, the 
        restoration of ecosystems through the restoration of hydrologic 
        and geomorphic processes;
            ``(5) consider the costs and benefits of protecting or 
        degrading natural systems;
            ``(6) ensure that projects are justified by benefits that 
        accrue to the public at large;
            ``(7) ensure that benefit-cost calculations reflect a 
        credible schedule for project construction;
            ``(8) ensure that each project increment complies with 
        section 104;
            ``(9) include as a cost any increase in direct Federal 
        payments or subsidies and exclude as a benefit any increase in 
        direct Federal payments or subsidies; and
            ``(10) provide a mechanism by which, at least once every 5 
        years, the Secretary shall collaborate with the National 
        Academy of Sciences to review, and if necessary, revise all 
        planning regulations, guidelines, and circulars.
    ``(d) National Navigation and Port Plan.--
            ``(1) In general.--Not later than 18 months after the date 
        of enactment of the Corps of Engineers Modernization and 
        Improvement Act of 2005, the Corps shall develop, and update 
        not less frequently than every 4 years, an integrated, national 
        plan to manage, rehabilitate and, if justified, modernize 
        inland waterway and port infrastructure to meet current 
        national economic and environmental needs.
            ``(2) Tools.--To develop the plan, the Corps shall employ 
        economic tools that--
                    ``(A) recognize the importance of alternative 
                transportation destinations and modes; and
                    ``(B) employ practicable, cost-effective congestion 
                management alternatives before constructing and 
                expanding infrastructure to increase waterway and port 
                capacity.
            ``(3) Benefits and proximity.--The Corps shall give 
        particular consideration to the benefits and proximity of 
        proposed and existing port, harbor, waterway, rail and other 
        transportation infrastructure in determining whether to 
        construct new water resources projects.
    ``(e) Notice and Comment.--The Secretary shall comply with the 
notice and comment provisions of chapter 551 of title 5, United States 
Code, in issuing revised planning regulations, guidelines and 
circulars.
    ``(f) Applicability.--On completion of the revisions required under 
this section, the Secretary shall apply the revised regulations to 
projects for which a draft feasibility study or draft reevaluation 
report has not yet been issued.
    ``(g) Project Reformulation.--Projects of the Corps, and separable 
elements of projects of the Corps, that have been authorized for 10 
years, but for which less than 15 percent of appropriations 
specifically identified for construction have been obligated, shall not 
be constructed unless a general reevaluation study demonstrates that 
the project or separable element meets--
            ``(1) all project criteria and requirements applicable at 
        the time the study is initiated, including requirements under 
        this section; and
            ``(2) cost share and mitigation requirements of this 
        Act.''.
    (b) Conforming Amendments.--
            (1) Section 80 of the Water Resources Development Act of 
        1974 (42 U.S.C. 1962d-17) is repealed.
            (2) Section 7(a) of the Department of Transportation Act 
        (Public Law 89-670; 80 Stat. 941) is repealed.

SEC. 102. INDEPENDENT REVIEW.

    (a) Definitions.--In this section:
            (1) Affected state.--The term ``affected State'', with 
        respect to a water resources project, means a State or portion 
        of a State that--
                    (A) is located, at least partially, within the 
                drainage basin in which the project is carried out; and
                    (B) would be economically or environmentally 
                affected as a result of the project.
            (2) Director.--The term ``Director'' means the Director of 
        Independent Review appointed under subsection (c)(1).
    (b) Projects Subject to Independent Review.--
            (1) In general.--The Secretary shall ensure that each 
        feasibility report, general reevaluation report, and 
        environmental impact statement for each water resources project 
        described in paragraph (2) is subject to review by an 
        independent panel of experts established under this section.
            (2) Projects subject to review.--A water resources project 
        shall be subject to review under paragraph (1) if--
                    (A) the project has an estimated total cost of more 
                than $25,000,000, including mitigation costs;
                    (B) the Governor of an affected State requests the 
                establishment of an independent panel of experts for 
                the project;
                    (C) the head of a Federal agency charged with 
                reviewing the project determines that the project is 
                likely to have a significant adverse impact on 
                environmental, cultural, or other resources under the 
                jurisdiction of the agency; or
                    (D) the Secretary determines under paragraph (3) 
                that the project is controversial.
            (3) Controversial projects.--
                    (A) In general.--The Secretary shall determine that 
                a water resources project is controversial for the 
                purpose of paragraph (2)(D) if the Secretary finds 
                that--
                            (i) there is a significant dispute as to 
                        the size, nature, or effects of the project;
                            (ii) there is a significant dispute as to 
                        the economic or environmental costs or benefits 
                        of the project; or
                            (iii) there is a significant dispute as to 
                        the benefits to the communities affected by the 
                        project of a project alternative that--
                                    (I) was not the focus of the 
                                feasibility report, general 
                                reevaluation report, or environmental 
                                impact statement for the project; or
                                    (II) was not considered in the 
                                feasibility report, general 
                                reevaluation report, or environmental 
                                impact statement for the project.
                    (B) Written requests.--Not later than 30 days after 
                the date on which the Secretary receives a written 
                request of any party, or on the initiative of the 
                Secretary, the Secretary shall determine whether a 
                project is controversial.
    (c) Director of Independent Review.--
            (1) Appointment.--The Inspector General of the Army shall 
        appoint in the Office of the Inspector General of the Army a 
        Director of Independent Review.
            (2) Qualifications.--The Inspector General of the Army 
        shall select the Director from among individuals who are 
        distinguished experts in biology, hydrology, engineering, 
        economics, or another discipline relating to water resources 
        management.
            (3) Limitation on appointments.--The Inspector General of 
        the Army shall not appoint an individual to serve as the 
        Director if the individual has a financial interest in or close 
        professional association with any entity with a financial 
        interest in a water resources project that, on the date of 
        appointment of the Director, is--
                    (A) under construction;
                    (B) in the preconstruction engineering and design 
                phase; or
                    (C) under feasibility or reconnaissance study by 
                the Corps.
            (4) Terms.--
                    (A) In general.--The term of a Director appointed 
                under this subsection shall be 6 years.
                    (B) Term limit.--An individual may serve as the 
                Director for not more than 2 nonconsecutive terms.
            (5) Duties.--The Director shall establish a panel of 
        experts to review each water resources project that is subject 
        to review under subsection (b).
    (d) Establishment of Panels.--
            (1) In general.--After the Secretary selects a preferred 
        alternative for a water resources project subject to review 
        under subsection (b) in a formal draft feasibility report, 
        draft general reevaluation report, or draft environmental 
        impact statement, the Director shall establish a panel of 
        experts to review the project.
            (2) Membership.--A panel of experts established by the 
        Director for a project shall be composed of not less than 5 nor 
        more than 9 independent experts (including 1 or more 
        biologists, hydrologists, engineers, and economists) who 
        represent a range of areas of expertise.
            (3) Limitation on appointments.--The Director shall not 
        appoint an individual to serve on a panel of experts for a 
        project if the individual has a financial interest in or close 
        professional association with any entity with a financial 
        interest in the project.
            (4) Consultation.--The Director shall consult with the 
        Academy in developing lists of individuals to serve on panels 
        of experts under this section.
            (5) Notification.--
                    (A) In general.--To ensure that the Director is 
                able to effectively carry out the duties of the 
                Director under this section, the Secretary shall notify 
                the Director in writing not later than 90 days before 
                the release of a draft feasibility report, draft 
                general reevaluation report, or draft environmental 
                impact statement, for every water resources project.
                    (B) Contents.--The notification shall include--
                            (i) the estimated cost of the project; and
                            (ii) a preliminary assessment of whether a 
                        panel of experts may be required.
            (6) Compensation.--An individual serving on a panel of 
        experts under this section shall be compensated at a rate of 
        pay to be determined by the Inspector General of the Army.
            (7) Travel expenses.--A member of a panel of experts under 
        this section shall be allowed travel expenses, including per 
        diem in lieu of subsistence, at rates authorized for an 
        employee of an agency under subchapter I of chapter 57 of title 
        5, United States Code, while away from the home or regular 
        place of business of the member in the performance of the 
        duties of the panel.
    (e) Duties of Panels.--
            (1) In general.--A panel of experts established for a water 
        resources project under this section shall--
                    (A) review each draft feasibility report, draft 
                general reevaluation report, and draft environmental 
                impact statement prepared for the project;
                    (B) assess the adequacy of the economic, 
                scientific, and environmental models used by the 
                Secretary in reviewing the project to ensure that--
                            (i) the best available economic and 
                        scientific methods of analysis have been used;
                            (ii) the best available economic, 
                        scientific, and environmental data have been 
                        used; and
                            (iii) any regional effects on navigation 
                        systems have been examined;
                    (C) receive from the public written and oral 
                comments concerning the project;
                    (D) not later than the deadline established under 
                subsection (f), submit to the Secretary a report 
                concerning the economic, engineering, and environmental 
                analyses of the project, including the conclusions of 
                the panel, with particular emphasis on areas of public 
                controversy, with respect to the feasibility report, 
                general reevaluation report, or environmental impact 
                statement; and
                    (E) not later than 30 days after the date of 
                issuance of a final feasibility report, final general 
                reevaluation report, or final environmental impact 
                statement, submit to the Secretary a brief report 
                stating the views of the panel on the extent to which 
                the final analysis adequately addresses issues or 
                concerns raised by each earlier evaluation by the 
                panel.
            (2) Extensions.--
                    (A) In general.--The panel may request from the 
                Director a 30-day extension of the deadline established 
                under paragraph (1)(E).
                    (B) Record of decision.--The Secretary shall not 
                issue a record of decision until after, at the 
                earliest--
                            (i) the final day of the 30-day period 
                        described in paragraph (1)(E); or
                            (ii) if the Director grants an extension 
                        under subparagraph (A), the final day of the 
                        60-day period beginning on the date of issuance 
                        of a final feasibility report described in 
                        paragraph (1)(E) and ending on the final day of 
                        the extension granted under subparagraph (A).
    (f) Duration of Project Reviews.--
            (1) Deadline.--Except as provided in paragraph (2), not 
        later than 180 days after the date of establishment of a panel 
        of experts for a water resources project under this section, 
        the panel shall complete--
                    (A) each required review of the project; and
                    (B) all other duties of the panel relating to the 
                project (other than the duties described in subsection 
                (e)(1)(E)).
            (2) Extension of deadline for report on project reviews.--
        Not later than 240 days after the date of issuance of a draft 
        feasibility report, draft general reevaluation report, or draft 
        environmental impact statement for a project, if a panel of 
        experts submits to the Director before the end of the 180-day 
        period described in paragraph (1), and the Director approves, a 
        request for a 60-day extension of the deadline established 
        under that paragraph, the panel of experts shall submit to the 
        Secretary a report required under subsection (e)(1)(D).
    (g) Recommendations of Panel.--
            (1) Consideration by secretary.--
                    (A) In general.--If the Secretary receives a report 
                on a water resources project from a panel of experts 
                under this section by the applicable deadline under 
                subsection (e)(1)(E) or (f), the Secretary shall, at 
                least 14 days before entering a final record of 
                decision for the water resources project--
                            (i) take into consideration any 
                        recommendations contained in the report; and
                            (ii) prepare a written explanation for any 
                        recommendations not adopted.
                    (B) Inconsistent recommendations and findings.--
                Recommendations and findings of the Secretary that are 
                inconsistent with the recommendations and findings of a 
                panel of experts under this section shall not be 
                entitled to deference in a judicial proceeding.
            (2) Public review; submission to congress.--After receiving 
        a report on a water resources project from a panel of experts 
        under this section (including a report under subsection 
        (e)(1)(E)), the Secretary shall--
                    (A) immediately make a copy of the report (and, in 
                a case in which any written explanation of the 
                Secretary on recommendations contained in the report is 
                completed, shall immediately make a copy of the 
                response) available for public review; and
                    (B) include a copy of the report (and any written 
                explanation of the Secretary) in any report submitted 
                to Congress concerning the project.
    (h) Public Access to Information.--
            (1) In general.--Except as provided in paragraph (3), the 
        Secretary shall ensure that information relating to the 
        analysis of any water resources project by the Corps, including 
        all supporting data, analytical documents, and information that 
        the Corps has considered in the analysis, is made available--
                    (A) to any individual upon request;
                    (B) to the public on the Internet; and
                    (C) to an independent review panel, if such a panel 
                is established for the project.
            (2) Types of information.--Information concerning a project 
        that is available under paragraph (1) shall include--
                    (A) any information that has been made available to 
                the non-Federal interests with respect to the project; 
                and
                    (B) all data and information used by the Corps in 
                the justification and analysis of the project.
            (3) Exception for trade secrets.--
                    (A) In general.--The Secretary shall not make 
                information available under paragraph (1) that the 
                Secretary determines to be a trade secret of any person 
                that provided the information to the Corps.
                    (B) Criteria for trade secrets.--The Secretary 
                shall consider information to be a trade secret only 
                if--
                            (i) the person that provided the 
                        information to the Corps--
                                    (I) has not disclosed the 
                                information to any person other than--
                                            (aa) an officer or employee 
                                        of the United States or a State 
                                        or local government;
                                            (bb) an employee of the 
                                        person that provided the 
                                        information to the Corps; or
                                            (cc) a person that is bound 
                                        by a confidentiality agreement; 
                                        and
                                    (II) has taken reasonable measures 
                                to protect the confidentiality of the 
                                information and intends to continue to 
                                take the measures;
                            (ii) the information is not required to be 
                        disclosed, or otherwise made available, to the 
                        public under any other Federal or State law; 
                        and
                            (iii) disclosure of the information is 
                        likely to cause substantial harm to the 
                        competitive position of the person that 
                        provided the information to the Corps.
    (i) Costs.--
            (1) Limitation on cost of review.--The cost of conducting a 
        review of a water resources project under this section shall 
        not exceed--
                    (A) $250,000 for a project, if the total cost of 
                the project in current year dollars is less than 
                $50,000,000; and
                    (B) 0.5 percent of the total cost of the project in 
                current year dollars, if the total cost is $50,000,000 
                or more.
            (2) Treatment.--The cost of conducting a review of a 
        project under this section shall be considered to be part of 
        the total cost of the project.
            (3) Cost sharing.--A review of a project under this section 
        shall be subject to section 105(a) of the Water Resources 
        Development Act of 1986 (33 U.S.C. 2215(a)).
            (4) Waiver of limitation.--The Secretary may waive a 
        limitation under paragraph (1) if the Secretary determines that 
        the waiver is appropriate.
    (j) Applicability of Federal Advisory Committee Act.--The Federal 
Advisory Committee Act (5 U.S.C. App.) shall apply to a panel of 
experts established under this section.

SEC. 103. BENEFIT-COST ANALYSIS.

    Section 308(a) of the Water Resources Development Act of 1990 (33 
U.S.C. 2318(a)) is amended--
            (1) in paragraph (1)(B), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end and 
        inserting a semi-colon; and
            (3) by adding at the end the following:
            ``(3) any projected benefit attributable to any change in, 
        or intensification of, land use arising from the draining, 
        reduction, or elimination of wetlands; and
            ``(4) any projected benefit attributable to an increase in 
        direct Federal payments or subsidies.''.

SEC. 104. BENEFIT-COST RATIO.

    (a) Recommendation of Projects.--Beginning in fiscal year 2006, in 
the case of a water resources project that is subject to a benefit-cost 
analysis, the Secretary may recommend the project for authorization by 
Congress, and may choose the project as a recommended alternative in 
any record of decision or environmental impact statement, only if the 
project, in addition to meeting any other criteria required by law, has 
projected national benefits that are at least 1.5 times as great as the 
estimated total costs of the project, based on current discount rates 
provided by the Office of Management and Budget.
    (b) Deauthorization of Projects.--
            (1) Report.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary shall submit to Congress a 
        report identifying each water resources project (or separable 
        element of such a project) that is subject to a benefit-cost 
        analysis and authorized for construction, the projected 
        remaining benefits of which are less than 1.5 times as great as 
        the remaining projected costs.
            (2) Deauthorizations.--
                    (A) In general.--Effective beginning on the date 
                that is 3 years after the date of submission of the 
                report under paragraph (1), any project identified in 
                the report shall be deauthorized unless the project was 
                reauthorized by Congress during the preceding 3 years.
                    (B) Construction in progress.--If construction 
                (other than preconstruction engineering or design) 
                began on or before the date of enactment of this Act 
                for a project that is deauthorized under subparagraph 
                (A), the Secretary may take such actions with respect 
                to the project as the Secretary determines to be 
                necessary to protect public health and safety and the 
                environment.
    (c) Public Notification.--The Secretary shall--
            (1) publish in the Federal Register the report under 
        subsection (b)(1); and
            (2) make the report available to the public on the 
        Internet.
    (d) Final Deauthorization List.--The Secretary shall publish in the 
Federal Register a list of all projects deauthorized under this 
section.

SEC. 105. COST SHARING.

    (a) Operations and Maintenance of Inland Waterways.--Section 102 of 
the Water Resources Development Act of 1986 (33 U.S.C. 2212) is amended 
by striking subsections (b) and (c) and inserting the following:
    ``(b) Operation and Maintenance.--
            ``(1) Federal share.--The Federal share of the cost of 
        operation and maintenance shall be 100 percent in the case of--
                    ``(A) a project described in paragraph (1) or (2) 
                of subsection (a); or
                    ``(B) the portion of the project authorized by 
                section 844 that is allocated to inland navigation.
            ``(2) Source of federal share.--
                    ``(A) From the general fund.--In the case of a 
                project described in paragraph (1) or (2) of subsection 
                (a) with respect to which the cost of operation and 
                maintenance is less than or equal to 2 cents per ton 
                mile, or in the case of the portion of the project 
                authorized by section 844 that is allocated to inland 
                navigation, the Federal share under paragraph (1) shall 
                be paid only from amounts appropriated from the general 
                fund of the Treasury.
                    ``(B) From the general fund and inland waterways 
                trust fund.--In the case of a project described in 
                paragraph (1) or (2) of subsection (a) with respect to 
                which the cost of operation and maintenance is greater 
                than 2 but less than or equal to 10 cents per ton 
                mile--
                            ``(i) 75 percent of the Federal share under 
                        paragraph (1) shall be paid only from amounts 
                        appropriated from the general fund of the 
                        Treasury; and
                            ``(ii) 25 percent of the Federal share 
                        under paragraph (1) shall be paid only from 
                        amounts appropriated from the Inland Waterways 
                        Trust Fund.
                    ``(C) From the inland waterways trust fund.--In the 
                case of a project described in paragraph (1) or (2) of 
                subsection (a) with respect to which the cost of 
                operation and maintenance is greater than 10 cents per 
                ton mile but less than 30 cents per ton mile, 100 
                percent of the Federal share under paragraph (1) shall 
                be paid only from amounts appropriated from the Inland 
                Waterways Trust Fund.
                    ``(D) Non-federal responsibility.--In the case of a 
                project described in paragraph (1) or (2) of subsection 
                (a) with respect to which the cost of operation and 
                maintenance is greater than 30 cents per ton-mile, the 
                cost of operations and maintenance shall be a non-
                Federal responsibility.''.
    (b) Flood Damage Reduction.--Section 103 of the Water Resources 
Development Act of 1986 (33 U.S.C. 2213) is amended--
            (1) in subsections (a)(2) and (b), by striking ``35'' each 
        place it appears and inserting ``50'';
            (2) in the paragraph heading of subsection (a)(2), by 
        striking ``35 percent minimum'' and inserting ``Minimum''; and
            (3) in the paragraph heading of subsection (b), by striking 
        ``35'' and inserting ``50''.

                          TITLE II--MITIGATION

SEC. 201. FULL MITIGATION.

    Section 906(d) of the Water Resources Development Act of 1986 (33 
U.S.C. 2283(d)) is amended--
            (1) by striking paragraph (1) and inserting the following:
            ``(1) Projects.--
                    ``(A) In general.--After November 17, 1986, the 
                Secretary shall not submit to Congress any proposal for 
                the authorization of any water resources project, and 
                shall not choose a project alternative in any final 
                record of decision, environmental impact statement, or 
                environmental assessment, unless the report contains--
                            ``(i) a specific plan to fully mitigate 
                        losses of aquatic and terrestrial resources and 
                        fish and wildlife created by the project; or
                            ``(ii) a determination by the Secretary 
                        that the project will have negligible adverse 
                        impact on aquatic and terrestrial resources and 
                        fish and wildlife.
                    ``(B) Specific requirements.--Specific mitigation 
                plans shall ensure that impacts to bottomland hardwood 
                forests and other habitat types are mitigated in kind.
                    ``(C) Consultation.--In carrying out this 
                paragraph, the Secretary shall consult with appropriate 
                Federal and non-Federal agencies.''; and
            (2) by adding at the end the following:
            ``(3) Standards for mitigation.--
                    ``(A) In general.--To fully mitigate losses to fish 
                and wildlife resulting from a water resources project, 
                the Secretary shall, at a minimum--
                            ``(i) acquire and restore 1 acre of 
                        superior or equivalent habitat of the same type 
                        to replace each acre of habitat adversely 
                        affected by the project; and
                            ``(ii) replace the hydrologic functions and 
                        characteristics, the ecological functions and 
                        characteristics, and the spatial distribution 
                        of the habitat adversely affected by the 
                        project.
                    ``(B) Detailed mitigation plan.--The specific 
                mitigation plan for a water resources project under 
                paragraph (1) shall include, at a minimum--
                            ``(i) a detailed and specific plan to 
                        monitor mitigation implementation and 
                        ecological success, including the designation 
                        of the entities that will be responsible for 
                        monitoring;
                            ``(ii) specific ecological success criteria 
                        by which the mitigation will be evaluated and 
                        determined to be successful, prepared in 
                        consultation with the United States Fish and 
                        Wildlife Service;
                            ``(iii) a detailed description of the land 
                        and interests in land to be acquired for 
                        mitigation and the basis for a determination 
                        that land and interests are available for 
                        acquisition;
                            ``(iv) sufficient detail regarding the 
                        chosen mitigation sites and type and amount of 
                        restoration activities to permit a thorough 
                        evaluation of the plan's likelihood of 
                        ecological success and resulting aquatic and 
                        terrestrial resource functions and habitat 
                        values; and
                            ``(v) a contingency plan for taking 
                        corrective actions if monitoring demonstrates 
                        that mitigation efforts are not achieving 
                        ecological success as described in the 
                        ecological success criteria.
                    ``(C) Applicable law.--A time period for mitigation 
                monitoring or for the implementation and monitoring of 
                contingency plan actions shall not be subject to the 
                deadlines described in section 202.
            ``(4) Determination of mitigation success.--
                    ``(A) In general.--Mitigation shall be considered 
                to be successful at the time at which monitoring 
                demonstrates that the mitigation has met the ecological 
                success criteria established in the mitigation plan.
                    ``(B) Requirements for success.--To ensure the 
                success of any attempted mitigation, the Secretary 
                shall--
                            ``(i) consult yearly with the United States 
                        Fish and Wildlife Service on each water 
                        resources project requiring mitigation to 
                        determine whether mitigation monitoring for 
                        that project demonstrates that the project is 
                        achieving, or has achieved, ecological success;
                            ``(ii) ensure that implementation of the 
                        mitigation contingency plan for taking 
                        corrective action begins not later than 30 days 
                        after a finding by the Secretary or the United 
                        States Fish and Wildlife Service that the 
                        original mitigation efforts likely will not 
                        result in, or have not resulted in, ecological 
                        success;
                            ``(iii) complete implementation of the 
                        contingency plan as expeditiously as 
                        practicable; and
                            ``(iv) ensure that monitoring of mitigation 
                        efforts, including those implemented through a 
                        mitigation contingency plan, continues until 
                        the monitoring demonstrates that the mitigation 
                        has met the ecological success criteria.
            ``(5) Recommendation of projects.--The Secretary shall not 
        recommend a water resources project alternative or choose a 
        project alternative in any final record of decision, 
        environmental impact statement, or environmental assessment 
        completed after the date of enactment of this paragraph unless 
        the Secretary determines that the mitigation plan for the 
        alternative will successfully mitigate the adverse impacts of 
        the project on aquatic and terrestrial resources, hydrologic 
        functions, and fish and wildlife.
            ``(6) Implementation of mitigation before construction of 
        new projects.--The Secretary shall implement all mitigation 
        required by a record of decision for water resources projects 
        in a particular district of the Corps before beginning physical 
        construction of any new water resources project (or separable 
        element of such a project) in that district.''.

SEC. 202. CONCURRENT MITIGATION.

    Section 906(a) of the Water Resources Development Act of 1986 (33 
U.S.C. 2283(a)) is amended--
            (1) by striking ``(a)(1) In the case'' and inserting the 
        following:
    ``(a) Mitigation.--
            ``(1) In general.--In the case'';
            (2) in paragraph (1), by striking ``interests--'' and all 
        that follows through ``losses),'' and inserting the following: 
        ``interests shall be undertaken or acquired--
                    ``(A) before any construction of the project (other 
                than such acquisition) commences; or
                    ``(B) concurrently with the acquisition of land and 
                interests in land for project purposes (other than 
                mitigation of fish and wildlife losses);'';
            (3) in paragraph (2), by striking ``(2) For the purposes'' 
        and inserting the following:
            ``(2) Commencement of construction.--For the purpose''; and
            (4) by adding at the end the following:
            ``(3) Implementation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), to ensure concurrent mitigation, the 
                Secretary shall implement--
                            ``(i) 50 percent of required mitigation 
                        before beginning construction of a project; and
                            ``(ii) the remainder of required mitigation 
                        as expeditiously as practicable, but not later 
                        than the last day of construction of the 
                        project or separable element of the project.
                    ``(B) Exception for physical impracticability.--In 
                a case in which the Secretary determines that it is 
                physically impracticable to complete mitigation by the 
                last day of construction of the project or separable 
                element of the project, the Secretary shall reserve or 
                reprogram sufficient funds to ensure that mitigation 
                implementation is completed as expeditiously as 
                practicable, but in no case later than the end of the 
                next fiscal year immediately following the last day of 
                that construction.
            ``(4) Use of funds.--Funds made available for preliminary 
        engineering and design, construction, or operations and 
        maintenance shall be available for use in carrying out this 
        section.''.

SEC. 203. MITIGATION TRACKING SYSTEM.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Secretary shall establish a recordkeeping 
system to track each water resources project constructed, operated, or 
maintained by the Secretary, and for each permit issued under section 
404 of the Federal Water Pollution Control Act (33 U.S.C. 1344)--
            (1) the quantity and type of wetland and other habitat 
        types affected by the project, project operation, or permitted 
        activity;
            (2) the quantity and type of mitigation required for the 
        project, project operation or permitted activity;
            (3) the quantity and type of mitigation that has been 
        completed for the project, project operation or permitted 
        activity; and
            (4) the status of monitoring for the mitigation carried out 
        for the project, project operation or permitted activity.
    (b) Required Information and Organization.--The recordkeeping 
system shall--
            (1) include information on impacts and mitigation described 
        in subsection (a) that occur after December 31, 1969; and
            (2) be organized by watershed, project, permit application, 
        and zip code.
    (c) Availability of Information.--The Secretary shall make 
information contained in the recordkeeping system available to the 
public on the Internet.

                  TITLE III--IMPROVING ACCOUNTABILITY

SEC. 301. FISCAL TRANSPARENCY REPORT.

    (a) Definitions.--In this section:
            (1) Construction.--The term ``construction'' includes any 
        physical work carried out under a construction contract 
        relating to a water resources project.
            (2) Physical work.--The term ``physical work'' does not 
        include any activity relating to--
                    (A) project planning;
                    (B) project engineering and design;
                    (C) relocation; or
                    (D) the acquisition of land, an easement, or a 
                right-of-way.
    (b) Report.--
            (1) In general.--On the third Tuesday of January of each 
        year beginning after the date of enactment of this Act, the 
        Chief of Engineers shall submit to the Committee of Environment 
        and Public Works of the Senate and the Committee on 
        Transportation and Infrastructure of the House of 
        Representatives a fiscal transparency report describing--
                    (A) the expenditures of the Corps during the 
                preceding fiscal year;
                    (B) the estimated expenditures of the Corps for the 
                fiscal year during which the report is submitted; and
                    (C) a list of projects that the Chief of Engineers 
                expects to complete during the fiscal year during which 
                the report is submitted.
            (2) Contents.--In addition to the information described in 
        paragraph (1), the report shall contain a detailed account of--
                    (A) for each general construction project that is 
                under construction on the date of submission of the 
                report, or for which there is a signed cost-sharing 
                agreement, complete information regarding planning, 
                engineering, and design of the project, including--
                            (i) the primary purpose of the project;
                            (ii) each allocation made to the project on 
                        or before the date of submission of the report;
                            (iii) a description of any construction 
                        carried out relating to the project;
                            (iv) the projected date of completion of 
                        construction of the project;
                            (v) the estimated annual Federal cost of 
                        completing construction of the project on or 
                        before the projected date under clause (iv); 
                        and
                            (vi) the date of completion of the most 
                        recent feasibility study, reevaluation report, 
                        and environmental review of the project;
                    (B) for each general investigation and 
                reconnaissance and feasibility study, information 
                including--
                            (i) the number of studies initiated on or 
                        before the date of submission of the report;
                            (ii) the number of studies in progress on 
                        the date of submission of the report;
                            (iii) the number of studies expected to be 
                        completed during the fiscal year; and
                            (iv) a list of any completed study of a 
                        project that is not authorized for construction 
                        on the date of submission of the report, and 
                        the date of completion of the study;
                    (C) for each inland and intracoastal waterway 
                operated and maintained under section 206 of the Inland 
                Waterways Revenue Act of 1978 (33 U.S.C. 1804), 
                information including--
                            (i) the estimated annual cost of operating 
                        and maintaining the reach of the waterway at 
                        the depth of the waterway;
                            (ii) the actual cost of operating and 
                        maintaining the reach of the waterway at the 
                        depth of the waterway during the previous 
                        fiscal year; and
                            (iii) the number of barges (including the 
                        number of loaded barges) and the total tonnage 
                        shipped over each waterway during the preceding 
                        fiscal year; and
                    (D) for each water resources project (or separable 
                element of such a project) that is authorized for 
                construction, for which Federal funds have not been 
                obligated for construction during any of the 4 
                preceding fiscal years, information including--
                            (i) the primary purpose of the project;
                            (ii) the date of authorization of the 
                        project;
                            (iii) each allocation made to the project 
                        on or before the date of submission of the 
                        report, including the amount and type of the 
                        allocation;
                            (iv) the percentage of construction of the 
                        project that has been completed on the date of 
                        submission of the report;
                            (v) the estimated cost of completing the 
                        project, and the percentage of estimated total 
                        costs that has been obligated to the project on 
                        or before the date of submission of the report;
                            (vi)(I) a benefit-cost analysis of the 
                        project, expressed as a ratio using current 
                        discount rates;
                            (II) the estimated annual benefits and 
                        annual costs of the project; and
                            (III) the date on which any economic data 
                        used to justify the project was collected;
                            (vii) the date of completion of the most 
                        recent feasibility study, reevaluation report, 
                        and environmental review of the project; and
                            (viii) a brief explanation of any reason 
                        why Federal funds have not been obligated for 
                        construction of the project.
    (c) Congressional and Public Notifications.--On submission of a 
report under this section, the Secretary shall notify each Senator in 
the State of whom, and each Member of the House of Representatives in 
the district of whom, a project identified in the report is located.
    (d) Publication.--For any report under this section, the Secretary 
shall--
            (1) publish the report in the Federal Register; and
            (2) make the report available to--
                    (A) any person, on receipt of a request of the 
                person; and
                    (B) the public on the Internet.

SEC. 302. PROJECT DEAUTHORIZATIONS.

    Section 1001 of the Water Resources Development Act of 1986 (33 
U.S.C. 579a) is amended to read as follows:
    ``(a) Definitions.--In this section:
            ``(1) Construction.--The term `construction' includes any 
        physical work carried out under a construction contract 
        relating to a water resources project.
            ``(2) Physical work.--The term `physical work' does not 
        include any activity relating to--
                    ``(A) project planning;
                    ``(B) project engineering and design;
                    ``(C) relocation; or
                    ``(D) the acquisition of land, an easement, or a 
                right-of-way.
    ``(b) Deauthorizations.--
            ``(1) In general.--Effective beginning on the date that is 
        30 months after the date of submission of a fiscal transparency 
        report under section 301 of the Corps of Engineers 
        Modernization and Improvement Act of 2005, each project 
        identified under section 301(b)(2)(D) of that Act shall be 
        deauthorized unless Federal funds were obligated for 
        construction of the project during the preceding 30 months.
            ``(2) Effect of paragraph.--Paragraph (1) does not apply--
                    ``(A) in the case of a beach nourishment project, 
                beginning on the date on which initial construction of 
                the project is completed; or
                    ``(B) in the case of any other project, beginning 
                on the date on which construction of the project is 
                completed.
    ``(c) Final Deauthorization List.--The Secretary shall annually 
publish in the Federal Register a list of all projects deauthorized 
under this section.''.
                                 <all>
```