II 113th CONGRESS 1st Session S. 566 IN THE SENATE OF THE UNITED STATES March 14, 2013 Mr. Durbin (for himself and Mr. Kirk ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To establish a pilot program to evaluate the cost-effectiveness of allowing non-Federal interests to carry out certain water infrastructure projects, and for other purposes.

1. Short title This Act may be cited as the Water Infrastructure Now Public-Private Partnership Act or the WIN P3 Act . 2. Findings Congress finds that— (1) investment in water infrastructure is critical to protecting property and personal safety through flood, hurricane, and storm damage reduction activities; (2) investment in infrastructure on the inland waterways of the United States is critical to the economy of the United States through the maintenance of safe, reliable, and efficient navigation for recreation and the movement of billions of dollars in goods each year; (3) fiscal challenges facing Federal, State, local, and tribal governments require new and innovative financing structures to continue robust investment in public water infrastructure; (4) under existing fiscal restraints and project delivery processes, large-scale water infrastructure projects like the lock and dam modernization on the upper Mississippi River and Illinois River will take decades to complete, with benefits for the lock modernization not expected to be realized until 2047; (5) the Corps of Engineers has an estimated backlog of more than $60,000,000,000 in outstanding projects; and (6) in developing innovative financing options for water infrastructure projects, any prior public investment in projects must be protected. 3. Water infrastructure now pilot program (a) In general The Secretary of the Army, acting through the Chief of Engineers, shall establish a pilot program to evaluate the cost-effectiveness and project delivery efficiency of allowing non-Federal interests to carry out authorized flood damage reduction, hurricane and storm damage reduction, and navigation projects. (b) Purposes The purposes of the pilot program are— (1) to identify project delivery and cost-saving alternatives that reduce the backlog of authorized Corps of Engineers projects; (2) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out the design, execution, management, and construction of 1 or more projects; and (3) to evaluate alternatives for the decentralization of the project planning, management, and operational decision-making processes of the Corps of Engineers. (c) Administration (1) In general In carrying out the pilot program, the Secretary shall— (A) identify a total of not more than 15 flood damage reduction, hurricane and storm damage reduction, and navigation projects, including levees, floodwalls, flood control channels, water control structures, and navigation locks and channels, authorized for construction; (B) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives upon the identification of each project under the pilot program; (C) in consultation with the non-Federal interest, develop a detailed project management plan for each identified project that outlines the scope, budget, design, and construction resource requirements necessary for the non-Federal interest to execute the project, or a separable element of the project; (D) on the request of the non-Federal interest, enter into a project partnership agreement with the non-Federal interest for the non-Federal interest to provide full project management control for construction of the project, or a separable element of the project, in accordance with plans approved by the Secretary; (E) following execution of the project partnership agreement, transfer to the non-Federal interest to carry out construction of the project, or a separable element of the project— (i) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and (ii) additional amounts, as determined by the Secretary, from amounts made available under section 5, except that the total amount transferred to the non-Federal interest shall not exceed the estimate of the Federal share of the cost of construction, including any required design; and (F) regularly monitor and audit each project being constructed by a non-Federal interest under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable. (2) Restrictions Of the projects identified by the Secretary— (A) not more than 12 projects shall— (i) have received Federal funds and experienced delays or missed scheduled deadlines in the 5 fiscal years prior to the date of enactment of this Act; or (ii) for more than 2 consecutive fiscal years, have an unobligated funding balance for that project in the Corps of Engineers construction account; and (B) not more than 3 projects shall— (i) have not received Federal funding for recapitalization and modernization in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act; and (ii) be, in the determination of the Secretary, significant to the national economy as a result of the impact the project would have on the national transportation of goods. (3) Technical assistance On the request of a non-Federal interest, the Secretary may provide technical assistance to the non-Federal interest, if the non-Federal interest contracts with the Secretary for the technical assistance and compensates the Secretary for the technical assistance, relating to— (A) any study, engineering activity, and design activity for construction carried out by the non-Federal interest under this section; and (B) obtaining any permits necessary for the project. (4) Waivers (A) In general For any project included in the pilot program, the Secretary may waive or modify any applicable Federal regulations for that project if the Secretary determines that such a waiver would provide public and financial benefits, including expediting project delivery and enhancing efficiency while maintaining safety. (B) Notification The Secretary shall notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives each time the Secretary issues a waiver or modification under subparagraph (A). (d) Public benefit study (1) In general Before entering into a project partnership agreement under this section, the Secretary shall enter into an arrangement with an independent third party to conduct an assessment of whether, and provide justification that, the proposed partnership agreement would represent a better public and financial benefit than a similar transaction using public funding or financing. (2) Contents The study under paragraph (1) shall— (A) be completed by the third party in a timely manner and in a period of not more than 90 days; (B) take into consideration any supporting materials and data submitted by the Secretary, the nongovernmental party to the proposed project partnership agreement, and other stakeholders; and (C) recommend whether the project partnership agreement will be in the public interest by determining whether the agreement will provide public and financial benefits, including expedited project delivery and savings to taxpayers. (e) Cost share Nothing in this Act affects the cost-sharing requirement applicable on the day before the date of enactment of this Act to a project carried out under this Act. (f) Report (1) In general Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report detailing the results of the pilot program carried out under this section, including any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis. (2) Update Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update of the report described in paragraph (1). (g) Administration All laws (including regulations) that would apply to the Secretary if the Secretary were carrying out the project shall apply to a non-Federal interest carrying out a project under this Act. (h) Termination of authority The authority to commence a project under this Act terminates on the date that is 5 years after the date of enactment of this Act. 4. Applicability Nothing in this Act authorizes or permits the privatization of any Federal asset. 5. Authorization of appropriations There are authorized to be appropriated to the Secretary to carry out this Act such sums as are necessary.