Water Resources Reform and Development Act of 2014: Comparison of Select Provisions
Released: 2014-07-14T00:00:00

WRRDA Conference Report Developments

The Water Resources Reform and Development Act of 2014 (WRRDA 2014, P.L. 113-121 ) became law on June 10, 2014. Its conference report, H.Rept. 113-449 , resolved differences between the House-passed H.R. 3080 , the Water Resources Reform and Development Act of 2013 (WRRDA 2013), and the Senate-passed S. 601 , the Water Resources Development Act of 2013 (WRDA 2013). The conference report adopted Water Resources Reform and Development Act for the act's title. Both H.R. 3080 and S. 601 represented omnibus authorization legislation focused on water resource activities, principally of the U.S. Army Corps of Engineers, and a few other environmental issues. The bills addressed many similar issues, but often used different means. During the House and Senate deliberations, some Members expressed frustration with how long Corps projects take. Some Members also expressed interest in authorizing new projects and deauthorizing older unconstructed projects. Some Members wanted more prominent nonfederal roles. Others supported more funding for harbor maintenance and improved inland waterway construction. The earmark debate and concerns about congressional roles also shaped each bill's approach. The Administration provided comments during congressional deliberations. The two most recent communications consisted of a December 11, 2013, letter from the Assistant Secretary of the Army (Civil Works), hereinafter referred to as the ASA, to the conference managers ; and Army Corps testimony before the U.S. House Committee on Transportation and Infrastructure (T&I), Subcommittee on Water Resources and Environment, on April 29, 2014.

Authorizing Projects . WRRDA 2014 authorized a fixed set of 34 new construction projects totaling $25.65 billion ($15.64 billion in federal costs and $10.01 billion in nonfederal costs) and increased the authorization of appropriations for eight previously authorized projects. It established expedited House procedures for the remainder of the 113 th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. It requires an "Annual Report" from the ASA to Congress identifying proposed new studies (including studies proposed by nonfederal entities) and completed feasibility and project modification reports. When the Senate passed S. 601 on May 15, 2013, there were an estimated 19 construction projects representing approximately $10.8 billion ($6.3 billion federal and $4.5 billion nonfederal) that appeared to meet the new project authorization criteria in S. 601 . When the House passed H.R. 3080 on October 23, 2013, it would have authorized a fixed set of 23 new construction projects at a total cost of $13.0 billion ($7.7 billion in federal costs and $5.3 billion in nonfederal costs). WRRDA 2014 included no comparable title to Title III of S. 601 , Project Modifications.

Expediting Studies, Environmental Reviews, and Permits . P.L. 113-121 , like H.R. 3080 and S. 601 , encouraged completion of Corps studies within three years, limited study costs, and established new procedures intended to expedite Corps completion of environmental compliance requirements, including the National Environmental Policy Act (NEPA). Independent peer review was among the "reforms" adopted in WRDA 2007 ( P.L. 110-114 ). WRRDA 2014's conference report raised the standard threshold for performing an independent peer review of a feasibility study from $45 million total project costs to $200 million, and extend applicability of the review requirement to studies initiated through 2019.

Expanding Project Delivery and Financing Opportunities . WRRDA 2014, like H.R. 3080 and S. 601 , encouraged nonfederal opportunities in delivering water resources projects through provisions on crediting for nonfederal work and increasing opportunities for nonfederal contributions and nonfederal study and project management. It required the ASA to establish a five-year pilot program for nonfederal management of studies and a five-year pilot program of 15 projects for nonfederal management of project construction. It also consolidated various authorities under which nonfederal entities can perform construction on water resources projects and allow the federal share of construction costs to be reimbursed or credited (and credit transferred to other projects). Like S. 601 , WRRDA 2014 established a pilot program known as the Water Infrastructure Finance and Innovation Act (WIFIA) to finance water infrastructure projects. The Corps and the U.S. Environmental Protection Agency (EPA) are responsible for administering the pilot program.

Investing in Navigation . WRRDA 2014, like H.R. 3080 and S. 601 , encouraged increased spending from the Harbor Maintenance Trust Fund (HMTF). As in S. 601 , the enacted legislation eliminated the 50% nonfederal cost sharing requirement for harbor maintenance between 45 and 50 feet deep. It modified prioritization of HMTF funding among different types of harbors but retained similar provisions contained in H.R. 3080 and S. 601 reserving certain portions of funds to harbors with less cargo. The final legislation, like H.R. 3080 and S. 601 , did not enact changes to inland waterway revenues in general but increased the threshold for major rehabilitation efforts on inland waterways, authorized changes to waterway project delivery, and altered the cost-share for one project (Olmsted Locks and Dam). These changes may increase the likelihood of Inland Waterways Trust Fund (IWTF) monies being available for use on other inland waterway construction projects.

Reducing Flood Risks. P.L. 113-121 authorized establishment of a levee safety initiative that expanded Corps technical assistance and training to promote levee safety, expanded Federal Emergency Management Agency (FEMA) assistance in establishing or improving state and tribal levee safety programs, and expanded Corps authority to provide levee rehabilitation assistance. Elements of the enacted initiative are similar to provisions in S. 601 , but with either no or lower levels of authorizations of appropriations. Like H.R. 3080 and S. 601 , the enacted legislation required the ASA to develop national levee safety guidelines and review and update Corps guidelines for vegetation on levees. Similar to S. 601 , the conference report allowed the ASA to repair a levee to the design level of protection (rather than to pre-storm conditions) or if needed modify the project to address major deficiencies or implement nonstructural measures. WRRDA 2014 directed the ASA to ensure that part of its levee inspection program provides adequate information for reaching a levee accreditation decision for purposes of floodplain mapping related to FEMA's National Flood Insurance Program (NFIP) mapping.

Restoring and Protecting Aquatic Ecosystems . WRRDA 2014 provided congressional direction related to various regional river and coastal restoration efforts (e.g., Chesapeake Bay, North Atlantic coastal restoration) and authorized the construction of projects which have previously been studied in the Everglades and in Coastal Louisiana, among other places. Similar to a proposal in H.R. 3080 , WRRDA 2014 also added to Corps authority to undertake activities for the prevention, control, and eradication of invasive species at Corps projects.

Deauthorizing Projects and Managing the Backlog . WRRDA 2014 created a one-time process aimed at deauthorizing previously authorized projects with federal costs to complete totaling $18 billion; the ASA is responsible for leading the process, and is required to provide opportunity for public input and congressional disapproval. This one-time process and other backlog provisions included in P.L. 113-121 combined elements of the deauthorization and backlog management provisions of H.R. 3080 and S. 601 .

Addressing Other Issues. The conference report included provisions, different from those in S. 601 , amending the applicability of the Environmental Protection Agency's oil spill prevention, control, and countermeasure regulations. The enacted legislation also included certain water infrastructure provisions of the Clean Water Act (CWA) that were not included in H.R. 3080 or S. 601 . These CWA provisions, while representing the first amendments to CWA Title VI since 1987, did not address many of the more longstanding or controversial CWA issues. Most of the CWA provisions included in WRRDA 2014 addressed CWA Title VI, which authorized grants to states to capitalize state loan programs (State Revolving Funds, or SRFs) for wastewater treatment facility projects.

P.L. 113-121 did not include the ocean-related provisions of the House and Senate bills. H.R. 3080 would have prohibited programs or actions authorized by H.R. 3080 to be used for furthering implementation of Executive Order 13547 on coastal and marine spatial planning. S. 601 would have created a National Endowment for the Oceans. Instead, WRRDA 2014 authorized the ASA to undertake studies of Corps projects in coastal zones to enhance ocean and coastal ecosystem resiliency; it also authorized the construction of smaller projects or inclusion of recommendations for congressional authorization in the Annual Report.

Comparison of H.R. 3080, S. 601, and Conference Report

The remainder of this report provides a side-by-side analysis of selected provisions of H.R. 3080 , S. 601 , and the conference report which became WRRDA 2014. The selection of provisions addressed herein was based on attention during congressional deliberations, significance for the Corps and its activities, or policy differences between the bills. Many of the project-specific or geographically specific provisions (e.g., provisions of Titles III and V of S. 601 , Title IV of the conference report) generally are not discussed. The Appendix identifies the comparable titles of the two bills and conference report. The report is divided into the sections shown in Table 1 .

Expediting Studies, Environmental Reviews, and Permits

Like both the House and Senate bills, the conference report for WRRDA 2014 included provisions aimed at expediting water project delivery and permit processing. Most of these provisions intended to expedite—

Corps studies by establishing deadlines, schedules, or funding limits for feasibility studies and eliminating certain study requirements; environmental compliance requirements, including primarily provisions intended to expedite Corps compliance with the National Environmental Policy Act and outside agency issuance of any permit, review, or other approval required under any applicable federal law; and Corps permitting.

During the House and Senate deliberations, some Members expressed frustration with the cost and duration of Corps studies. Most Corps feasibility studies are cost-shared 50% federal and 50% nonfederal. The degree to which various factors and requirements contribute to the time it takes to complete a Corps study is difficult to parse out and attribute to a single environmental requirement. For example, activities performed to demonstrate compliance with applicable environmental requirements may occur concurrently to the Corps completing actions required by other laws (e.g., preparing analyses necessary to determine a project's economic costs and benefits). The larger, more complex, and costly the project being studied, often the longer each step in the study process may take to complete. Anecdotal evidence indicates that individual studies may take longer due to disagreements with federal resource agencies or state permitting agencies, but there are limited data available to determine whether such delays are systemic or project-specific. The role that Congress plays in authorizing studies and project construction and the timing of appropriations have been identified as factors having significant effect on the duration of studies and ultimately project delivery. For example, in terms of the project development process, years may pass between the following steps shown in each bullet:

approval to initiate a study, to appropriation of federal funds for the study, complete reconnaissance study, to initiation of feasibility study, and ASA transmission to Congress of the feasibility report, to congressional construction authorization.

At an April 29, 2014, House T&I Subcommittee on Water Resources and Environment hearing, the Corps witness testified that, while the agency is committed to expediting the Corps planning process:

certain elements of provisions in the proposed legislation regarding the elimination of reconnaissance studies, fixed lengths for feasibility studies, project permitting and environmental streamlining, study authority resolutions, and the application of Independent External Peer Review, could actually become counterproductive. By constraining the Corps from exercising the same initiative that led to Civil Works Transformation and Planning Modernization, certain requirements could lead to a less flexible, overly restrictive program that reduces efficiency, hinders project approval, and increases the probability of a project being terminated.

Corps Studies

The conference report for WRRDA 2014 required that the Corps complete feasibility studies within certain time limits (with more flexibility provided for timing of study completion than in H.R. 3080 ) and federal funding limits. Like §104 of the House bill, the conference report eliminated the requirement to prepare a separate reconnaissance study and instead directed the Corps to include analysis required for those studies (preliminary analysis of the federal interest and the costs, benefits, and environmental impacts of the project) in a feasibility report. Like §2034 of the Senate bill, the conference report required the Corps to develop a detailed project schedule for certain milestones needed to complete feasibility studies. Selected provisions related to study acceleration are shown in Table 2 .

Independent peer review was among the "reforms" adopted in WRDA 2007 ( P.L. 110-114 ). The conference report raised the standard threshold for performing an independent peer review of a feasibility study; it increased from $45 million total project costs to $200 million. Like S. 601 , the conference report extended the requirement for independent peer review from those studies initiated between 2007 and 2014 to those initiated between 2007 and 2019, and amended the congressional requirements on the reporting on decisions not to perform peer review and distribution of the results of the peer review and the agency's responses.

Environmental Reviews

Project acceleration provisions in WRRDA 2014 (§1005) are intended to expedite the Corps' overall project development by expediting one element of the feasibility report process—preparation of documents necessary to comply with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). To do so, WRRDA 2014 (§1005(a)) amended the project streamlining requirements in Section 2045 of WRDA 2007 ( P.L. 110-114 , codified at 33 U.S.C. 2348).

The NEPA compliance process is sometimes referred to as the environmental review process. Broadly, NEPA requires federal agencies to fully consider a project's significant impacts on the environment, and to inform the public of those impacts, before making a final decision about the project. Provisions in the conference report (§1005(a)) expanded the definition of "environmental review process" to include the "process for and completion of any environmental permit, approval, review, or study required for a water resources project under any Federal law other than NEPA." Provisions in the conference report, however, apply primarily to actions taken by the Corps within the context of demonstrating compliance with NEPA.

In accordance with its broader obligation to determine a project's potential economic, social, and environmental benefits and detriments, Corps planning is performed in accordance with its "Environmental Evaluation and Compliance" process. That process is implemented by the Corps to ensure that activities necessary to identify and demonstrate compliance with any applicable environmental requirements are integrated into the Corps' overall planning process. The Environmental Evaluation and Compliance process includes steps necessary to ensure compliance with environmental requirements that arise from local, tribal, state, or federal laws and regulations that may apply as a result of project-specific impacts to protected resources. The NEPA compliance process generally forms the framework that the Corps uses to identify applicable project-specific requirements and to coordinate with outside agencies, if necessary, to comply with those requirements. For projects that require a feasibility study, the Corps usually must prepare an environmental impact statement (EIS), pursuant to NEPA. Generally, it is Corps practice to ensure that any outside agency consultations and decisions regarding any permits or approvals are complete before a feasibility study/EIS is complete.

Many of the project acceleration provisions in the conference report (§1005(a)) pertained to outside agency involvement in the NEPA process or in making decisions under other environmental laws. Those provisions largely were intended to coordinate actions or input from outside federal agencies which have some expertise regarding an affected resource or jurisdiction by law to control the impacts to that resource (e.g., an agency authorized to issue a permit or other approval associated with an impact to that resource).

Prior to WRRDA 2014, Section 2045 of WRDA 2007 (33 U.S.C. 2348) required that the Corps establish a coordinated review process for any water resources project that requires the preparation of a feasibility study and an EIS under NEPA. When implementing that process, the Corps was authorized to establish a schedule for federal, state, or local government agencies or Indian tribes to process, approve, or issue all reviews, analyses, opinions, permits, licenses, and approvals required for a water resources project (which is also allowed under existing regulations implementing NEPA). Provisions included in the conference report similarly apply to project studies that require the preparation of an EIS under NEPA, but may also be applied to other projects as deemed appropriate by the ASA.

As in Section 2045 of WRDA 2007, many of the provisions in WRRDA 2014 codify requirements that are largely similar to preexisting regulations implementing NEPA. However, some provisions may add to or change preexisting Corps practices or requirements used to demonstrate compliance with NEPA, or change outside agencies' procedures for completing their respective decision-making processes. Selected provisions that may result in such changes are listed in Table 3 . While the conference report may change certain procedures applicable to environmental reviews, none appear to substantially affect the Corps' obligation to comply with existing environmental requirements (established under NEPA or any other environmental law) that may apply to a project.

Until the Corps interprets the project acceleration provisions and integrates them with its current Environmental Evaluation and Compliance process, it is difficult to determine whether the procedural changes will expedite environmental reviews. Some of provisions could add time to the Corps' already complex planning process. For example under WRRDA 2014, the Corps is required to prepare a coordination plan to coordinate and schedule outside agency participation in the environmental review process (see Table 3 ). When preparing the plan, the Corps is required to set deadlines for outside agencies to complete the environmental review process—something the Corps could previously do on a project-by-project basis. Those deadlines may be extended for "good cause." Other than requiring the Corps to prepare an additional planning document, this provision may not substantially alter the Corps' procedures to coordinate outside agency actions.

The conference report (§1005(a)) also establishes unique requirements applicable to the NEPA compliance process, in general, but may have limited impact on the Corps' NEPA process, in particular. Specifically, financial penalty provisions create a unique system of reprogramming a federal agency's funding if that agency does not reach a decision on a permit, license, or other approval by a certain deadline (the later of 180 days after an application for the approval is complete; and the Corps completes the NEPA process). As discussed above, the Corps generally does not complete the NEPA process until permits and other required approvals are in place. Also, approvals required for Corps projects, including those required under federal environmental laws, are most often issued by state, tribal or local agencies, not federal agencies. Given the timing in which the Corps generally has such approvals in place and the role that federal agencies generally have in issuing such approvals for Corps projects, there may be limited circumstances in which the financial penalty provisions may be invoked.

WRRDA 2014 also included a provision (§1005(b)) related to actions associated with the repair, reconstruction or rehabilitation of a project in operation or under construction when damaged in an event associated with a major disaster or emergency declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121 et seq.). Such actions would be processed as a categorical exclusion (CE), pursuant to CEQ regulations (40 CFR 1508.4). According to those CEQ regulations, projects known by an agency to have no significant impact on the environment may be categorically excluded from the requirement to prepare an environmental assessment or EIS, under NEPA. Those regulations also provide for conditions under which an agency may be required to determine whether a given project involves "extraordinary circumstances" that may result in significant impacts (e.g., circumstances that may require additional review under NEPA).

WRRDA 2014 (§1005(b)) may not substantially change Corps practices. In its procedures implementing NEPA, the Corps explicitly identifies "activities at completed Corps projects" as actions processed as CEs, regardless of whether those activities are undertaken in response to an emergency. If the action is to address a project "under construction," any additional NEPA compliance may not be required, since the impacts of that project would presumably be evaluated in an existing NEPA document. Also, the Stafford Act statutorily exempts certain disaster-related activities from NEPA, including the repair, restoration, reconstruction, or replacement of a damaged public facility. As a result, some disaster–related repairs undertaken by the Corps could potentially be waived from NEPA. Designating a project as a CE is not a waiver from NEPA. Until the Corps interprets this directive, it is not clear whether it could result in a project being subject to some, albeit limited, level of NEPA review when it otherwise may have been subject to no review, pursuant to the Stafford Act.

Corps Permitting

In addition to undertaking water resources projects, the Corps also has regulatory responsibilities related to activities that may affect navigable waters and wetlands.

H.R. 3080 and S. 601 each included provisions that could be identified as accelerating or streamlining the Corps' regulatory program as shown in Table 2 . Both bills proposed eliminating the expiration of a Corps authority that allows the agency to accept funds from nonfederal public entities to expedite the processing of Corps permits for projects serving a public purpose. The authority was set to expire December 31, 2016. Additionally, H.R. 3080 would have expanded the eligibility of entities that can provide funds to the Corps to expedite its processing of permits. The current authority is limited to nonfederal public entities. H.R. 3080 would have added public-utility companies and natural gas companies. In December 2010, Congress clarified in P.L. 111-315 that private entities were not eligible entities under this authority after concerns that a Corps district was allowing limited use of the authority by private entities at the request of public entities. S. 601 would not have expanded the eligible entities for this authority; instead, S. 601 would have required the Corps take steps to improve the transparency, reporting, and consistency of how this authority is implemented.

Ultimately WRRDA 2014 (§1006) altered and expanded the existing authority to allow public-utility companies and natural gas companies to provide funds to the Corps to expedite the agency's processing of permits related to a project or activity for a public purpose. It also extended the existing authority indefinitely by eliminating its expiration, with the limitation that the authority for public utility companies and natural gas companies expires seven years after enactment.

For Further Reading

CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning: Background and Issues for Congress , by [author name scrubbed].

CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities , by [author name scrubbed] and [author name scrubbed].

Expanding Project Delivery and Finance Opportunities

Frustrations with the pace of Corps studies and construction, in part shaped by the pace of congressional authorization and limitations on available federal appropriations, has fostered interest in nonfederal entities, including private interests, having greater roles in project development, construction, and financing. The challenge is whether nonfederal resources can be leveraged while focusing current and future federal funds on those activities most in the national interest.

Nonfederal Work and Leadership on Studies and Projects

Like H.R. 3080 and S. 601, WRRDA 2014 included multiple provisions to encourage and manage nonfederal participation in project delivery. Table 4 identifies provisions for permitting, crediting, and reimbursing for nonfederal work, and provisions that establish pilot programs for nonfederal management and financing. The conference report consolidated most of the authorities for nonfederal leadership for water resources studies and construction under two authorities, 33 U.S.C. 2231 and 33 U.S.C. 2232. WRRDA 2014 (§1014), like H.R. 3080 , provided a mechanism for nonfederal entities to initiate work on a project which has a completed feasibility study, the milestone prior to a Chief's Report. A Chief's Report consists of the approval and recommendations for a project by the Corps' Chief of Engineers. The nonfederal entity would be eligible to receive credit or reimbursement if Congress subsequently authorizes the project. The conference report also required the ASA to establish a 5-year pilot program for nonfederal management of studies and a 5-year pilot program of 15 projects for nonfederal management of project construction.

Water Infrastructure Finance and Innovation Act (WIFIA)

Like S. 601 , WRRDA 2014 included the Water Infrastructure Finance and Innovation Act (WIFIA), which authorized a five-year pilot program for loans and loan guarantees for flood damage reduction projects assisted by the Corps and public water supply and wastewater projects assisted by the Environmental Protection Agency (EPA). The WIFIA concept is modeled after a similar program that assists transportation projects, the Transportation Infrastructure Finance and Innovation Act, or TIFIA, program. H.R. 3080 did not include comparable provisions. In a letter to the conferee managers, the Administration had expressed concerns with the WIFIA proposal in S. 601 , "which would expand the Environmental Protection Agency's and the Corps' role in local water infrastructure projects and not provide Federal assistance in the most efficient manner."

The conference report adopted the Senate's WIFIA provisions with some additions and modifications, as shown in Table 5 . Notably, the conference report expanded the types of projects that the Secretary of the Army may support with WIFIA assistance to include projects for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement. Responding to concerns raised by some groups that WIFIA could impair and diminish support for wastewater and drinking water State Revolving Fund (SRF) programs, the conference report included language requiring EPA, when the agency receives applications for WIFIA assistance, to give state infrastructure financing authorities a right of "first refusal" to finance the project. Finally, the conference report reduced the authorized funding for the pilot program from $250 million total for each agency ($50 million per year) to $175 million total for each agency (beginning with $20 million for FY2015 and increasing to $50 million for FY2019).

For Further Reading

Congressional Distribution Memorandum, available from author: "Credit for Nonfederal Work on Army Corps Projects" by [author name scrubbed], April 12, 2013.

CRS Report R43315, Water Infrastructure Financing: Proposals to Create a Water Infrastructure Finance and Innovation Act (WIFIA) Program , by [author name scrubbed].

Authorizing Projects and Managing Subsequent Authorizations

Project Authorizations and Authorized Project Purposes

Congressional authorization is required for most Corps new construction projects, and significant post-authorization modifications to a project's scope or cost. For new construction authorizations, WRRDA 2014 authorized a fixed set of 34 new construction projects totaling $25.65 billion ($15.64 billion in federal costs and $10.01 billion in nonfederal costs), as shown in Table 6 . All of the authorized projects have completed Chief's Reports; however, only 25 had been formally submitted by the ASA to Congress at the time of the conference report. The other nine projects, which represented $3.73 billion in projects, were awaiting a recommendation by the ASA and its transmittal to Congress at the time of the conference report. For project modifications, the conference report authorized eight project cost modifications. When the Senate passed S. 601 in May 2013, there were an estimated 19 construction projects representing approximately $10.8 billion ($6.3 billion federal and $4.5 billion nonfederal) in construction costs that appeared to meet the criteria in §1002 of the S. 601. When H.R. 3080 was passed by the House in October 2013, it would have authorized a fixed set of 23 new construction projects and project scope modifications at a total cost of $13.0 billion ($7.7 billion in federal costs and $5.3 billion in nonfederal costs), and two project cost modifications. CRS identified one project with a completed Chief's Report that is not included in the conference report.

H.R. 3080 as passed by the House included no construction authorization for projects that had their Chief's Reports completed after the House T&I Subcommittee on Water Resources and the Environment hearing on Chief's Reports held on June 5, 2013. On April 29, 2014, the House Transportation and Infrastructure Subcommittee on Water Resources and the Environment held a hearing on the Chief's Reports completed subsequent to the June 2013 hearing. All 34 projects included in the conference report have Chief's Reports and were the subject of a hearing.

Regarding existing project authorizations, H.R. 3080 included a provision to clarify that the act would not have expanded the authorized purposes of a dam or reservoir; S. 601 would have allowed the ASA to carry out activities to improve the efficiency of dam operations and as practicable meet other related benefits, including environment protection and restoration, water supply storage, hydropower generation, and flood risk reduction. The ASA's December 2013 letter to conference managers indicated that the Administration viewed that the provisions in both of the bills (§143 in H.R. 3080 , §2014 in S. 601 ) would have hampered needed reform, giving current uses of Corps projects priority over new uses. The Administration instead supported legislation that would have added fish and wildlife protection as an authorized purpose for all Corps dams and provide administrative flexibility to revise project operating guidelines. The conference report (§1045) required the ASA to assess the management practice, priorities, and authorized purposes of Corps reservoirs in arid regions to evaluate their impacts on water supply during drought, and identify actions to be carried out within existing authorities to increase project flexibility for mitigating drought impacts. The conference report stated that nothing in the section changes the authorized purpose of a Corps dam or reservoir, and that the Secretary may carry out any recommendations and activities under this subsection pursuant to existing law. The conference report also required the ASA to update a report on authorized purpose of Corps reservoirs, and include information on the most recent review of reservoir operations and a plan for future reviews.

WRRDA 2014, like both H.R. 3080 and S. 601 , also expanded many of the Corps existing programmatic authorities known as Continuing Authorities Programs (CAPs). Under the CAPs, the Corps studies and constructs projects of limited purpose and size without project specific congressional authorization.

Subsequent Authorization Processes

New Studies

WRRDA 2014, like H.R. 3080 as shown in Table 7 , required the Corps to solicit proposals from nonfederal entities for new studies and transmit qualifying studies to Congress in the Annual Report. Congressional authorization would be needed for the agency to proceed with the study. S. 601 (§4002) would have established a process for initiating new studies.

New Project Authorizations and Modifications of Project Scope

During House and Senate consideration, an ongoing topic of discussion was how to address projects anticipated to have completed study milestones (e.g., a Chief's Reports, ASA transmission to Congress) in the next year or two. Both H.R. 3080 and S. 601 would have addressed these projects but neither bill would have authorized them directly. The conference report did not authorize projects without completed Chief's Reports. Like H.R. 3080 , the conference report required the ASA to submit completed feasibility reports and reports for project modifications to Congress in the Annual Report. Congressional authorization would be needed for the agency to proceed with construction, as shown in Table 7 . As described in Table 4 , the conference report (§1014), like H.R. 3080 , may provide a mechanism for nonfederal entities to initiate work on a project with a completed feasibility study prior to a Chief's Report.

WRRDA 2014 (§7004) established expedited House procedures for the 113 th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. A qualifying requirement for the expedited House procedure is a completed Chief's Report. The qualifying requirements for the expedited Senate procedure included a completed Chief's Report, the project to be carried out substantially in accordance with the plan identified in the Chief's Report and subject to conditions in that report, and an ASA recommendation to authorize construction transmitted to Congress.

Project Cost Modifications and Project Modifications

WRRDA 2014 authorized eight project cost modifications that had ASA recommendation letters transmitted to Congress. The conference report required that subsequent proposed cost modifications be submitted for congressional consideration through the Annual Report; they would require subsequent congressional authorization. This is similar to how H.R. 3080 would have addressed cost modifications; S. 601 would have established a process to allow, for three years, the ASA to proceed with projects requiring cost modifications if a submission certifying the need for the increase is submitted to Congress and if "amounts are appropriated to initiate or continue construction of the project in an appropriation or other Act." Whether the expedited House and Senate procedures provided in the conference report (§7004) could be used for project cost modifications is unclear; traditionally project cost modifications are documented in reports of the Director of Civil Works, not Chief's Reports. The reports of the Director of Civil Works are then transmitted by an ASA letter to Congress. The conference report included no comparable title to Title III of S. 601 , Project Modifications.

For Further Reading

CRS Report R41961, Army Corps Fiscal Challenges: Frequently Asked Questions , by [author name scrubbed] and [author name scrubbed].

Investing in Navigation

Harbors

The Harbor Maintenance Trust Fund (HMTF) is used to cover the costs incurred by the Corps in operating and maintaining federally authorized harbors, principally the dredging of channels. The HMTF is supported by a tax on cargo moving through ports and cruise ship passengers (the Harbor Maintenance Tax, HMT). In recent years, annual HMTF expenditures (which require congressional appropriations typically as part of an Energy and Water Development Appropriations Act) have amounted to a little more than half of annual HMT collections and interest. Like H.R. 3080 and S. 601 , the conference report sought to increase HMTF spending, but not at the expense of available funding for other Corps activities. Thus, increased HMTF spending is predicated on the condition that the Corps total budget increases by at least the same amount.

WRRDA 2014 expanded the eligible uses of HMTF monies to dredging activity that is now paid by nonfederal sponsors (e.g., the dredging of berths by port authorities), but only at ports that generate more HMT revenue than they have received from the HMTF. The conference report adopted the provision in S. 601 that eliminated the 50% nonfederal cost share for the incremental cost of maintaining harbors at depths between 45 and 50 feet. Thus, the conference report could increase HMTF spending on harbors handling large volumes of cargo that in the past have made relatively little use of HMTF funds. The Administration objected to expanding the federal role in harbor maintenance to include activities that historically have not been a federal responsibility.

An issue reflected in the legislation is how to prioritize harbor maintenance among ports that handle large amounts of cargo and those that do not. The conference report reserved specified portions of HMTF funding for harbors with less cargo or that have not been fully maintained in prior years. The conference report modified a provision in H.R. 3080 that required the Corps to provide a written response to a nonfederal interest seeking federal maintenance of a harbor.

In addition to the dredging of berths and certain legacy-contaminated sediments, the conference report adopted language from S. 601 to allow "donor ports" and "energy transfer ports" to use appropriated funds for rebating HMT payments to shippers or for other dredging-related activity that otherwise is not a federal responsibility (see Table 8 for definitions). This could be especially appealing to U.S. ports that contend shippers favor nearby foreign ports to avoid payment of HMT. It appears that Seattle and Tacoma, WA, would qualify as "donor ports." It appears that fourteen ports may qualify as "energy transfer ports" (five ports in Louisiana; four ports in Texas; plus Mobile, AL; New York/New Jersey; Baltimore, MD; Norfolk, VA; and Long Beach, CA). To qualify as a donor port, a port must generate substantially more HMT than it receives, but this is not the case for an energy transfer port. An energy transfer port is defined as a harbor handling more than 40 million tons of cargo of any type and at which energy products comprised more than 25% of this tonnage (the HMT is not assessed on export cargo).

Inland Waterways

Some waterways stakeholders have been frustrated with the pace of construction on inland navigation infrastructure and cost overruns at key projects. The Inland Waterways Trust Fund (IWTF), which is funded by user fees, pays for 50% of most of these activities (to match 50% of costs provided from the General Fund of the Treasury). The IWTF has a declining balance that appears to have limited waterway construction projects in recent years. One inland waterway construction project, the Olmsted Locks and Dam project, has received the majority of the inland waterways construction monies in recent years, while construction on other inland waterway projects has been postponed. The Olmsted project was originally authorized at a cost of $775 million (plus inflationary increases) but recently required an increase to its authorization (i.e., an increase to its appropriations ceiling). The FY2014 Continuing Appropriations Act, P.L. 113-46 , increased the project's authorization from $775 million to $2.92 billion.

In an effort to expedite work on the Olmsted project and facilitate work on other inland waterways projects funded by the IWTF, WRRDA 2014 altered the IWTF cost-share requirement for the Olmsted project. Like S. 601 and H.R. 3080 the conference report decreased the required IWTF share of the project costs compared to current law. The conference report decreased the IWTF required portion of project costs from 50% to 15%. S. 601 would have eliminated the IWTF required cost-share and would have funded the Olmsted project entirely from the General Fund of the Treasury. H.R. 3080 would have reduced the IWTF cost-sharing requirement from 50% to 25%, as shown in Table 9 . In a December 2013 ASA letter to the conferee managers, the Administration objected to proposed alterations to the Olmsted project's cost sharing formula; however the Administration eventually agreed to this change in the enacted legislation.

Some have argued that water resources development legislation should also decrease IWTF cost-share requirements for major rehabilitation investments. Like S. 601 , the conference report raised the threshold for cost sharing for major rehabilitation investments on inland waterways from $8 million to $20 million, thereby making the General Fund responsible for a larger share of the expenditures. H.R. 3080 included no such change.

Like what S. 601 and H.R. 3080 would have done, WRRDA 2014 authorized changes to inland waterways project delivery. These changes are generally consistent with an April 2010 report published and endorsed by the Inland Waterways User Board (a federal advisory committee). Like the House and Senate Bills, the conference report also authorized several studies on inland waterways project revenues. This includes a study by the Government Accountability Office (GAO) on inland waterways revenue collection and two reports by the ASA on revenue alternatives.

For Further Reading

CRS Report R43222, Harbor Maintenance Finance and Funding , by [author name scrubbed].

CRS Report R41430, Inland Waterways: Recent Proposals and Issues for Congress , by [author name scrubbed].

Reducing Flood Risks

H.R. 3080 and S. 601 would have taken significantly different approaches to the Corps' flood risk management activities; the House approach would have been limited, while the Senate approach would have been more expansive. While the conference report included many levee safety provisions similar to S. 601, the conference report was scaled back from S. 601 in terms of both scope of new authorities and programs and the level of annual authorization of appropriations, as shown in Table 10 .

WRRDA 2014 established a levee safety initiative (§3016) that included authorizations for:

Corps technical assistance and training to promote levee safety, Corps levee rehabilitation assistance at 65% federal cost share and maximum federal project cost of $10 million per project (activities under the authority have an authorization of appropriations of $30 million for FY2015 through 2019), and FEMA to assist in establishing or improving state and tribal levee safety programs.

Elements of the initiative are similar to many provisions in S. 601, but with either no or lower levels of authorizations of appropriations. Like both H.R. 3080 and S. 601 , WRRDA 2014 required the Corps develop national levee safety guidelines.

The conference report provided a more limited extension of federally cost-shared beach nourishment (i.e., 3 years for certain projects) than the 15 years that S. 601 would have authorized. The ASA's December 2013 letter to conference managers included an objection to this nourishment provision and recommended that projects be reevaluated rather than simply extended. The conference report also provided for the ASA to review a 15-year extension request and make a recommendation to Congress regarding authorization.

The ASA's letter to conference managers also identified specific sections of S. 601 (§2022 and §2040) related to the repair and rehabilitation of levees that the Administration did not support. WRRDA 2014 included various related but altered authorizations for levee repair and rehabilitation; it:

allowed Corps levee repair to be completed to the design level of protection (rather than to pre-storm conditions) or if needed to modify the project to address major deficiencies or implement nonstructural measures; and required reporting every two years on repair spending and a review the Corps emergency response authorities to be completed within eighteen months of enactment. (§3029) authorized Corps rehabilitation of existing hurricane and storm damage levees that meet specific criteria if they are providing reduced protection due to consolidation, settlement, subsidence, sea level rise, or new datum; the ASA is limited to using this authority for projects with project partnerships agreements that state that the nonfederal entity is not required to perform restoration for subsidence and sea level rise as part of its operation and maintenance responsibilities. (§3017)

WRRDA 2014 (§3014) directed the ASA to ensure that an activity under the Corps inspection of completed works program provides adequate information to reach a levee accreditation decision for purposes of floodplain mapping related to FEMA's National Flood Insurance Program (NFIP) mapping.

For Further Reading

CRS Report R41752, Locally Operated Levees: Issues and Federal Programs , by [author name scrubbed] et al.

Restoring and Protecting Aquatic Ecosystems

As part of its mission, the Corps undertakes projects and activities intended to restore the structures, function and natural processes of aquatic ecosystems to a more natural condition. It also has authorities related to control of invasive species at its projects. Congress directs and facilitates these actions through project-specific provisions and programmatic provisions that direct broader Corps authorities and efforts, among other things.

Ecosystem Restoration31

WRRDA 2014 authorized new construction projects that aim to restore aquatic resources. Project-specific authorizations (discussed in an earlier section, " Authorizing Projects and Managing Subsequent Authorizations ") include projects that are part of comprehensive efforts to restore the Everglades and Coastal Louisiana. For the Everglades, the conference report authorized four projects at a total cost of approximately $1.9 billion. For Coastal Louisiana, the conference report authorized seven projects under the Louisiana Coastal Area (LCA) restoration program at a total cost of $2.1 billion. Overall, the conference report authorized new restoration projects at a total cost of $6.05 billion ($3.62 billion in federal costs and $2.43 billion in nonfederal costs). It also authorized other multi-purpose projects with environmental restoration elements.

WRRDA 2014, as shown in Table 11 , directed new studies in specific geographic locations which may result in new major ecosystem restoration construction efforts, including efforts in Coastal Louisiana, the North Atlantic coast, and Chesapeake Bay, among other places. In most cases, additional actions by Congress would be required to authorize new physical construction in these areas. Similar to S. 601 , WRRDA 2014 (§4011) authorized ten feasibility studies to be drawn from a 2012 Louisiana state plan (i.e., Louisiana Comprehensive Master Plan) and incorporated into the existing Corps LCA program and reporting requirements. These studies are in addition to the LCA projects authorized for construction referenced above.

Similar to S. 601 , WRRDA 2014 (§4009) authorized a new feasibility study for coastal ecosystem restoration projects in a large region of the Northeast. This North Atlantic coastal study could result in a recommendation for authorization of new restoration efforts in coastal areas from Virginia to Maine. WRRDA 2014 also authorized the Corps to carry out projects identified by the North Atlantic coastal study using existing relevant authorizations for smaller projects (i.e., projects under the Corps Continuing Authorities Programs). Construction of new projects that are not already authorized require additional authorization by Congress. WRRDA 2014 also authorized an ocean and coastal ecosystem resiliency program, which is discussed in the " Addressing Other Issues " section below.

WRRDA 2014 also authorized additional restoration studies and work in the Chesapeake Bay. Similar to a proposal in H.R. 3080 , WRRDA 2014 (§4010) converted an existing Corps Chesapeake Bay watershed assistance authority from a pilot program to a "program." Assistance may be provided for a variety of projects and activities, ranging from sediment and erosion control to ecosystem restoration. The projects and activities have to follow a comprehensive restoration plan, which the ASA is directed to complete within two years of enactment in cooperation with other federal agencies, state and local government officials and affected stakeholders. The program's authorization of appropriations remained unchanged at $10 million. WRRDA 2014 also changed the authorization for appropriations from $50 million to $60 million for carrying out oyster restoration activities in the Chesapeake Bay.

Provisions in WRRDA 2014 also provided direction for environmental restoration work by the Corps. Similar to S. 601 , the conference report (§1011(b)) established general criteria for prioritizing funding for environmental restoration projects. It specified that those projects which address threats to public safety, restore ecosystems of national significance, and which are of significance for federally protected species (including migratory birds) should be prioritized for funding. It also specified that projects that contribute to other ongoing restoration efforts should receive priority. It is unknown to what extent this may alter the Administration's budget development process for the Corps, which recently has reflected other priorities and criteria.

Invasive Species

WRRDA 2014 also contained provisions to address invasive species. Similar to S. 601 , WRRDA 2014 (§1039(b)) required an interagency review of federal invasive species authorities. Similar to H.R. 3080 , WRRDA 2014 also required a GAO report on the adequacy of federal invasive species activities, among other things.

WRRDA 2014 (§1039(c)) altered existing Corps invasive species authorities (33 U.S.C. 610). It added to the existing Corps authority to control noxious aquatic plant growths at navigable waters, tributary streams, connecting channels, and other waters of the United States. It also authorized the Corps to conduct efforts to control "aquatic invasive species" in these areas and added "prevention" to the existing authorized activities of control and eradication. It increased Corps authorized appropriations for these activities from $15 million to $20 million annually for aquatic plant control, $20 million annually for the new authority for aquatic invasive species.

WRRDA 2014 also directed invasive species work in specific basins and water bodies. The conference report (§1039(b)) authorized an interagency effort to combat the spread of Asian carp in the Upper Mississippi and Ohio River basins. This provision included authority for the federal government to provide aid, including technical assistance, to state and local governments. In addition to this effort, the conference report expanded reporting requirements associated with Asian carp. The approach in the conference report in this respect was similar to both S. 601 and H.R. 3080 . In addition to these activities, the WRRDA 2014 (§1039(c)), similar to S. 601 , authorized the establishment of watercraft inspection stations in the Columbia River Basin, to prevent the spread of aquatic nuisance species at Corps reservoirs in this region.

Deauthorizing Projects and Managing the Backlog

The Corps has a "backlog" of $62 billion in authorized construction on more than 1,000 projects; its annual construction appropriations, however, have been less than $2 billion in recent years and have been declining as more resources shift to operations and maintenance and as supplemental appropriations are used for construction in disaster affected areas. No publicly available list or database of these project authorizations, their status, and their cost to complete is available. There is an existing process in place to deauthorize Corps projects; in the recent past, the process has not resulted in significant deauthorizations or in reducing the size and growth of the backlog.

Under 33 U.S.C. 579a(b)(2), the ASA is directed to annually transmit to Congress a list of authorized projects and project elements with no obligations of funding during the last full five fiscal years. This list is published in the Federal Register . Without an ASA transmittal of a list, the deauthorization process is not initiated. If funds are not obligated for a project's planning, design, or construction during the fiscal year following publication in the Federal Register , the project or element is deauthorized. The Secretary last transmitted a new list in 2007; those deauthorizations became final in 2009.

WRRDA 2014, as shown in Table 12 , required that the ASA: (1) develop an interim deauthorization list of projects authorized prior to WRDA 2007(including environmental infrastructure projects) that have either not initiated construction or not received funding for six fiscal years, (2) provide opportunity for public comment on this list, and (3) develop a final deauthorization list, within 120 days after the public comment period, representing at least a federal cost to complete equal of $18 billion. The projects on the final list will be automatically deauthorized after 180 days unless Congress passes a joint resolution disapproving the final deauthorization list. The conference report did not alter the existing requirement under 33 U.S.C. 579a for the ASA to transmit annually to Congress a list of authorized projects and project elements with no obligations of funding during the last full five fiscal years, thus maintaining the existing annual deauthorization process after enactment. The ASA letter to the conference managers stated the Administration's support creating an annual process for identifying projects for deauthorization.

For Further Reading

CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities , by [author name scrubbed] and [author name scrubbed].

Addressing Other Issues

Oil Spill Prevention on Farms37

S. 601 included a provision to amend the Environmental Protection Agency's Oil Spill Prevention, Control and Countermeasure (SPCC) regulations; H.R. 3080 included no comparable provision. S. 601 would have amended the scope and applicability of the program. One provision stated that certain farms would not have required a "certification of a statement of compliance with the rule." According to communications with EPA, this provision would not have eliminated the requirement to create an SPCC plan. In contrast, WRRDA 2014, as shown in Table 13 , exempted the following farms from the SPCC regulations: (1) farms with no reportable discharge history and an aggregate aboveground storage of less than 6,000 gallons (or a to-be-determined lower threshold) and (2) farms with an aggregate aboveground storage of less than 2,500 gallons.

Clean Water Act Amendments

WRRDA 2014 included amendments to a number of the water infrastructure provisions of the Clean Water Act (CWA). The CWA amendments, which were not included in either S. 601 or H.R. 3080 , were drawn from several provisions of H.R. 1877 , the Water Quality Protection and Job Creation Act of 2013. Most addressed CWA Title VI, which authorizes grants to states to capitalize state loan programs (State Revolving Funds, or SRFs) for wastewater treatment facility projects; the conference report (§5006) provided that the effective date of these provisions is October 1, 2014. Some of the provisions included in the conference report have been included in other legislative proposals in recent Congresses that have not advanced (such as extending loan repayment from 20 years to 30 years, including land acquisition in the definition of "treatment works," and explicitly allowing SRF monies to be used for security projects). Several of them have been included in enacted appropriations bills and through WRRDA 2014 are now codified in the CWA (such as expanding the list of SRF-eligible projects to include energy- and water-efficiency, increasing assistance to Indian tribes, and imposing "Buy American" requirements, which were included in EPA's FY2014 appropriation, P.L. 113-76 ). The CWA provisions included in the conference report are the first amendments to CWA Title VI since 1987. However, the amendments did not address other long-standing or controversial Title VI issues, such as: authorization of appropriations for capitalization grants, which expired in FY1994; state-by-state allocation of capitalization grants; and applicability of prevailing wage requirements under the Davis-Bacon Act, which currently apply to use of SRF monies.

Ocean Policy40

WRRDA 2014 included neither ocean related provisions of H.R. 3080 and S. 601 , as shown in Table 13 . Instead, it (§4014) authorized the Corps to study projects in coastal zones to enhance ocean and coastal ecosystem resiliency; it authorized the Corps to perform identified projects consistent with criteria in other related Corps CAP programs, or include a recommendation for congressional authorization of a project in the Annual Report.

During House floor consideration of H.R. 3080 , a provision (§146) was added that would have prohibited programs or actions authorized by H.R. 3080 to be used for furthering implementation of Executive Order 13547, related to coastal and marine spatial planning. The House floor debate largely focused on implementation of recommendations from a report by the Interagency Ocean Policy Task Force; the recommendations support a national ocean policy, a coordination framework, and implementation strategy for the stewardship of the ocean, coasts, and the Great Lakes, and a framework for effective coastal and marine spatial planning. The ASA's December 2013 letter to the conference managers states that "the Administration strongly opposes Sec. 146 of H.R. 3080 ." S. 601 contained a different ocean policy provision. S. 601 would have established a National Endowment for the Oceans. Deposits would have included amounts appropriated and dividends and interest accruing from investment of the fund's monies. The endowment would have disbursed funds to coastal states, other coastal authorities, and federal agencies to support ocean and coastal management. The S. 601 provision was similar to a previous proposal made by the U.S. Commission on Ocean Policy. The Commission recommended establishment of an Ocean Policy Trust Fund in the U.S. Treasury. In contrast to S. 601 , the Commission recommended funding from outer continental shelf oil and gas activities and from new activities in federal waters. Since the release of the Commission's final report in 2004 at least a dozen bills have been introduced to establish an ocean trust fund or ocean endowment. Concerns related to the endowment include potential reductions in current program appropriations and potential tax increases to raise funds for the endowment.

For Further Reading

CRS Report R43306, Spill Prevention, Control, and Countermeasure (SPCC) Regulations: Background and Legislation in the 113 th Congress , by [author name scrubbed].

CRS Report R42883, Water Quality Issues in the 113 th Congress: An Overview , by [author name scrubbed].

Appendix. Crosswalk of Titles and Subtitles of P.L. 113-121, H.R. 3080, and S. 601