I
107TH CONGRESS
1ST SESSION
H. R. 1310
To reform the Army Corps of Engineers.
IN THE HOUSE OF REPRESENTATIVES
MARCH 29, 2001
Mr. KIND (for himself, Mr. ANDREWS, Ms. BALDWIN, Mr. BARRETT, Mr.
BLUMENAUER, Mr. GILCHREST, Mr. LARSON of Connecticut, Mr. LEWIS
of Georgia, Mrs. MALONEY of New York, Mr. PALLONE, Mr. TANCREDO,
Mrs. TAUSCHER, Mr. UDALL of Colorado, and Mr. UDALL of New Mex-
ico) introduced the following bill; which was referred to the Committee
on Transportation and Infrastructure
A BILL
To reform the Army Corps of Engineers.
Be it enacted by the Senate and House of Representa-
tives 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 Reform Act of 2001’’.
(b) TABLE OF CONTENTS.—
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Secretary defined.
TITLE I—PROJECT PLANNING REFORM
Sec. 101. Principles and guidelines.
Sec. 102. Stakeholder advisory committees.
Sec. 103. Independent review.
Sec. 104. Public access to information.
Sec. 105. Benefit-cost analysis.
Sec. 106. Project criteria.
TITLE II—MITIGATION
Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.—Congress finds the following:
(1) The Army Corps of Engineers is the pri-
mary Federal agency responsible for developing and
managing the Nation’s harbors, waterways, shore-
lines, and water resources.
(2) Scarce Federal resources require more effi-
cient use of Corps of Engineers funding and greater
oversight of Corps of Engineers analyses.
(3) Demand for recreation, clean water, and
healthy wildlife habitat must be reflected in the
Corps of Engineers project planning process.
(4) The social and environmental impacts of
dams, levees, shoreline stabilization structures, and
other projects must be adequately considered and
fully mitigated.
(5) Affected interests must play a larger role in
the oversight of Corps of Engineers project develop-
ment.
(b) PURPOSES.—The purposes of this Act are as fol-
lows:
(1) To ensure that the Nation’s water resources
investments are economically justified and enhance
the environment.
(2) To provide independent review of Corps of
Engineers feasibility studies, general reevaluation
studies, and environmental impact statements.
(3) To ensure that mitigation for Corps of En-
gineers projects is successful and cost-effective.
(4) To enhance the involvement of affected in-
terests in Corps of Engineers feasibility studies, gen-
eral reevaluation studies, and environmental impact
statements.
(5) To revise Corps of Engineers planning prin-
ciples to meet the economic and environmental needs
of riverside and coastal communities.
(6) To ensure that environmental analyses be
considered as co-equal to economic analyses in the
assessment of Corps of Engineers projects, recog-
nizing the need for sound science in the evaluation
of the impacts on the health of aquatic ecosystems.
(7) To ensure that the Corps of Engineers is
making appropriate, up-to-date calculations in con-
ducting cost-benefit analyses of Corps of Engineers
projects.
SEC. 3. SECRETARY DEFINED.
In this Act, the term ‘‘Secretary’’ means the Sec-
retary of the Army.
TITLE I—PROJECT PLANNING
REFORM
SEC. 101. PRINCIPLES AND GUIDELINES.
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
economic development and environmental protection and
restoration be co-equal goals of water resources planning
and development.
‘‘(b) REVISION OF PRINCIPLES AND GUIDELINES.—
Not later than 1 year after the date of enactment of the
Corps of Engineers Reform Act of 2001, the Secretary
shall revise the principles and guidelines of the Corps of
Engineers for water resources projects—
‘‘(1) to provide for the consideration of ecologi-
cal restoration costs under Corps of Engineers eco-
nomic models;
‘‘(2) to incorporate new techniques in risk and
uncertainty analysis;
‘‘(3) to eliminate biases and disincentives for
nonstructural flood damage reduction projects;
‘‘(4) to incorporate new analytical techniques;
‘‘(5) to encourage, to the maximum extent prac-
ticable, the restoration of aquatic ecosystems; and
‘‘(6) to ensure that water resources projects are
justified by benefits that accrue to the public at
large and not to a limited number of private busi-
nesses.
‘‘(c) UPDATE OF GUIDANCE.—The Secretary shall
update the Guidance for Conducting Civil Works Planning
Studies (ER 1105–2–100) to comply with this section.’’.
SEC. 102. STAKEHOLDER ADVISORY COMMITTEES.
(a) IN GENERAL.—Upon receipt of a written request
by any person or governmental entity, the Secretary shall
establish for a water resources project that is authorized
or substantially modified after the date of enactment of
this Act a stakeholder advisory committee to assist the
Secretary with the development of feasibility studies, gen-
eral reevaluation studies, and environmental impact state-
ments for the project.
(b) DURATION OF REVIEWS.—A stakeholder advisory
committee established for a project under this section may
provide advice to the Secretary during planning and de-
sign of the project, beginning with the initiation of the
project’s draft feasibility study and ending with the
issuance of the project’s draft environmental impact state-
ment.
(c) MEMBERSHIP.—A stakeholder advisory com-
mittee established for a project under this section shall
be composed of representatives of State and local agencies,
tribal organizations, public interest groups, industry, sci-
entific, and academic organizations, Federal agencies, and
other interested citizens. The membership shall represent
a balance of the social, economic, and environmental inter-
ests in the project.
(d) ROLE.—A stakeholder advisory committee estab-
lished for a project under this section shall advise the Sec-
retary but shall not be required to make a formal rec-
ommendation.
(e) COSTS.—The costs of a stakeholder advisory com-
mittee established for a project under this section—
(1) shall be a Federal expense;
(2) shall not exceed $250,000; and
(3) shall be considered as part of the total cost
of the project.
(f) APPLICABILITY
OF FEDERAL ADVISORY COM-
MITTEE ACT.—The Federal Advisory Committee Act (5
U.S.C. App.) shall apply to a stakeholder advisory com-
mittee established under this section.
SEC. 103. INDEPENDENT REVIEW.
(a) PROJECTS
SUBJECT
TO
INDEPENDENT
RE-
VIEW.—
(1) IN GENERAL.—The Secretary shall ensure
that feasibility studies, general reevaluation studies,
and environmental impact statements for each water
resources project described in paragraph (2) are
subject to review by an independent panel of experts
established under this section.
(2) PROJECTS SUBJECT TO REVIEW.—A 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 re-
quests the establishment of an independent
panel of experts for the project;
(C) the Director of the United States Fish
and Wildlife Service determines that the project
is likely to have a significant adverse impact on
fish or wildlife after implementation of proposed
mitigation plans;
(D) the head of a Federal agency charged
with reviewing the project determines that the
project is likely to have a signficant adverse im-
pact on environmental, cultural, or other re-
sources under the jurisdiction of the agency
after implementation of proposed mitigation
plans; or
(E) the Secretary determines that the
project is controversial under paragraph (3).
(3) CONTROVERSIAL PROJECTS.—Upon receipt
of a written request by an interested party or on the
initiative of the Secretary, the Secretary shall deter-
mine whether or not a project is controversial under
paragraph (2)(E). The Secretary shall determine
that a project is controversial if the Secretary finds
that—
(A) there is a significant public dispute as
to the size, nature, or effects of the project; or
(B) there is a significant public dispute as
to the economic or environmental costs or bene-
fits of the project.
(4) AFFECTED STATE DEFINED.—In paragraph
(2)(B), the term ‘‘affected State’’ means a State
that is at least partially within the drainage basin in
which the project is located and would be economi-
cally or environmentally affected as a consequence of
the project.
(b) OFFICE OF INDEPENDENT REVIEW.—
(1) ESTABLISHMENT.—There is established in
the Office of the Assistant Secretary of the Army for
Civil Works an Office of Independent Review (in this
section referred to as the ‘‘Office’’).
(2) DIRECTOR.—
(A) APPOINTMENT.—The head of the Of-
fice shall be the Director of the Office of Inde-
pendent Review (in this section referred to as
the ‘‘Director’’), who shall be appointed by the
Secretary for a term of 3 years.
(B) 
QUALIFICATIONS.—The 
Secretary
shall select the Director from among individuals
who are distinguished scholars. In making the
selection, the Secretary shall consider any rec-
ommendations made by the Inspector General
of the Army.
(C) LIMITATION ON APPOINTMENTS.—The
Secretary shall not appoint an individual to
serve as the Director if the individual has a fi-
nancial or close professional association with
any organization or group with a strong finan-
cial or organizational interest in an ongoing
water resources project.
(D) TERMS.—An individual may not serve
for more than 1 term as the Director.
(3) DUTIES.—The Director shall establish a
panel of experts to review each project subject to re-
view under subsection (a).
(c) ESTABLISHMENT OF PANELS.—
(1) IN GENERAL.—As soon as practicable after
the Secretary selects a preferred alternative for a
project subject to review under subsection (a), the
Director shall establish a panel of experts to review
the project.
(2) MEMBERSHIP.—A panel of experts estab-
lished by the Director for a project shall be com-
posed of not less than 5 and not more than 9 inde-
pendent experts who represent a balance of areas of
expertise, including biologists, engineers, and econo-
mists.
(3) LIMITATION ON APPOINTMENTS.—The Di-
rector shall not appoint an individual to serve on a
panel of experts for a project if the individual has
a financial or close professional association with any
organization or group with a strong financial or or-
ganizational interest in the project.
(4) CONSULTATION.—The Director shall con-
sult with the National Academy of Sciences in devel-
oping lists of individuals to serve on panels of ex-
perts under this section.
(5) COMPENSATION.—An individual serving on
a panel of experts under this section shall be com-
pensated at a rate of pay to be determined by the
Secretary.
(6) TRAVEL EXPENSES.—An individual serving
on a panel of experts under this section shall receive
travel expenses, including per diem in lieu of subsist-
ence, in accordance with sections 5702 and 5703 of
title 5, United States Code.
(d) DUTIES OF PANELS.—A panel of experts estab-
lished for a project under this section shall—
(1) review each feasibility study, general re-
evaluation study, and environmental impact state-
ment prepared for the project;
(2) assess the adequacy of the economic models
used by the Secretary in reviewing the project to en-
sure that—
(A) multiple methods of economic analysis
have been used; and
(B) any regional effects on navigation sys-
tems have been examined;
(3) assess the adequacy of the environmental
models and analyses used by the Secretary in re-
viewing the project;
(4) receive and review written and oral com-
ments of a technical nature concerning the project
from the public; and
(5) submit to the Secretary a report containing
the panel’s economic, engineering, and environ-
mental analysis of the project, including the panel’s
conclusions on the project’s feasibility studies, gen-
eral reevaluation studies, and environmental impact
statements, with particular emphasis on areas of
public controversy.
(e) DURATION OF PROJECT REVIEWS.—A panel of
experts shall complete its review of a project under this
section not later than 180 days after the date of establish-
ment of the panel and shall terminate upon submission
of a final report to the Secretary under subsection (d)(5).
(f) RECOMMENDATIONS OF PANEL.—
(1) CONSIDERATION BY SECRETARY.—After re-
ceiving a report on a project from a panel of experts
under this section and before entering a final record
of decision for the project, the Secretary shall con-
sider any recommendations contained in the report
and prepare a written explanation for any rec-
ommendations not adopted.
(2) PUBLIC
REVIEW; TRANSMITTAL
TO
CON-
GRESS.—After receiving a report on a project from
a panel of experts under this section, the Secretary
shall—
(A) make a copy of the report and any
written explanation of the Secretary on rec-
ommendations contained in the report available
for public review under section 104; and
(B) transmit to Congress a copy of the re-
port, together with any such written expla-
nation.
(g) COSTS.—
(1) IN GENERAL.—The costs of a panel of ex-
perts established for a project under this section—
(A) shall be a Federal expense;
(B) shall not exceed $500,000; and
(C) shall be considered as part of the total
cost of the project.
(2) WAIVER.—The Secretary may waive the
$500,000 limitation contained in paragraph (1)(B)
in cases that the Secretary determines appropriate.
(h) APPLICABILITY OF FEDERAL ADVISORY COM-
MITTEE ACT.—The Federal Advisory Committee Act (5
U.S.C. App.) shall apply to a panel of experts established
under this section.
SEC. 104. PUBLIC ACCESS TO INFORMATION.
(a) IN GENERAL.—The Secretary shall ensure that
information related to the analysis of a water resources
project by the Corps of Engineers, including all supporting
data, analytical documents, and information that the
Corps of Engineers has considered in its analysis, is made
available to any individual upon request and to the public
on the Internet.
(b) TYPES OF INFORMATION.—Information about a
water resources project to be made available under sub-
section (a) shall include any information that had been
made available to the project sponsor and all data used
by the Corps of Engineers in its justification and analysis
of the project.
(c) EXCEPTION FOR TRADE SECRETS.—
(1) IN
GENERAL.—The Secretary shall not
make information available under subsection (a) that
the Secretary determines to be a trade secret of the
person who supplied the information to the Corps of
Engineers.
(2) CRITERIA FOR TRADE SECRETS.—The Sec-
retary shall consider information to be a trade secret
only if—
(A) the person who supplied the informa-
tion to the Corps of Engineers—
(i) has not disclosed the information
to any person other than (I) an officer or
employee of the United States or a State
or local government, (II) an employee of
such person, or (III) a person who is
bound by a confidentiality agreement; and
(ii) has taken reasonable measures to
protect the confidentiality of the informa-
tion and intends to continue to take such
measures;
(B) the information is not required to be
disclosed, or otherwise made available, to the
public under any other Federal or State law;
and
(C) disclosure of the information is likely
to cause substantial harm to the competitive po-
sition of such person.
SEC. 105. BENEFIT-COST ANALYSIS.
Section 308(a) of the Water Resources Development
Act of 1990 (33 U.S.C. 2318(a)) is amended—
(1) by striking ‘‘and’’ at the end of paragraph
(1)(B);
(2) by striking the period at the end of para-
graph (2) and inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(3) any projected benefit arising from the
draining, reduction, or elimination of wetlands at-
tributable to increases in the value of privately
owned property, increases in the quantity of pri-
vately owned property, or increases in the value of
privately owned services.’’.
SEC. 106. PROJECT CRITERIA.
After the date of enactment of this Act, the Secretary
shall not submit to Congress any proposal to authorize or
substantially modify a water resources project unless the
proposal contains a certification by the Secretary that the
project minimizes to the greatest extent practicable ad-
verse impacts on—
(1) the natural hydrologic patterns of aquatic
ecosystems; and
(2) the value or native diversity of aquatic eco-
systems.
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) in the first sentence of paragraph (1) by in-
serting ‘‘fully’’ before ‘‘mitigate’’; and
(2) by adding at the end the following:
‘‘(3) STANDARDS FOR MITIGATION.—To miti-
gate losses to fish and wildlife resulting from a
water resources project, the Secretary, at a min-
imum, shall acquire and restore an acre of habitat
to replace each acre of habitat negatively impacted
by the project. The mitigation plan shall include a
detailed and specific plan to monitor mitigation im-
plementation and success.
‘‘(4) DESIGN OF MITIGATION PROJECTS.—The
Secretary shall design mitigation projects to reflect
contemporary understanding of the importance of
spatial distribution of habitat and the natural hy-
drology of aquatic ecosystems, and shall fully miti-
gate the adverse hydrologic impacts of projects.
‘‘(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 has the greatest probability of
cost-effectively and successfully mitigating the ad-
verse impacts of the project on aquatic resources
and fish and wildlife.
‘‘(6) COMPLETION
OF
MITIGATION
BEFORE
CONSTRUCTION OF NEW PROJECTS.—The Secretary
shall complete all planned mitigation in a particular
watershed before constructing any new water re-
sources project in that watershed.’’.
SEC. 202. CONCURRENT MITIGATION.
Section 906(a)(1) of the Water Resources Develop-
ment Act of 1986 (33 U.S.C. 2283(a)(1)) is amended by
adding at the end the following: ‘‘To ensure concurrent
mitigation, the Secretary shall complete 50 percent of re-
quired mitigation before beginning project construction
and shall complete the remainder of required mitigation
as expeditiously as practicable and in no case later than
the last day of project construction.’’.
SEC. 203. MITIGATION TRACKING SYSTEM.
(a) IN GENERAL.—Not later than 6 months after the
date of enactment of this Act, the Secretary shall establish
a record-keeping system to track the following informa-
tion:
(1) The amount and type of wetlands and other
habitat types impacted by the operation and mainte-
nance of each water resources project carried out by
the Secretary.
(2) The amount and type of mitigation required
for the operation and maintenance of each water re-
sources project carried out by the Secretary.
(3) The amount and type of mitigation that has
been completed for the operation and maintenance of
each water resources project carried out by the Sec-
retary.
(4) Wetland losses permitted under section 404
of the Federal Water Pollution Control Act (33
U.S.C. 1344) and required mitigation for such
losses.
(b) REQUIRED INFORMATION AND ORGANIZATION.—
The record-keeping system shall include information on
impacts and mitigation described in subsection (a) occur-
ring after 1969 and shall be organized by watershed,
project, permit application, and zip code.
(c) AVAILABILITY OF INFORMATION.—The Secretary
shall make information contained in the record-keeping
system available to the public on the Internet.
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