To modify a section relating to independent peer review of water resources projects.

SA 4681. Mr. FEINGOLD (for himself, Mr. McCain, Mr. Carper, Mr.
Lieberman, Mr. Jeffords, Ms. Collins, and Ms. Snowe) proposed an
amendment to the bill S. 728, to provide for the consideration and
development of water and related resources, to authorize the Secretary
of the Army to construct various projects for improvements to rivers
and harbors of the United States, and for other purposes; as follows:

Strike section 2007 and insert the following:

SEC. 2007. INDEPENDENT PEER REVIEW.

(a) Definitions.--In this section:
(1) Construction activities.--The term ``construction
activities'' means development of detailed engineering and
design specifications during the preconstruction engineering
and design phase and the engineering and design phase of a
water resources project carried out by the Corps of
Engineers, and other activities carried out on a water
resources project prior to completion of the construction and
to turning the project over to the local cost-share partner.
(2) Project study.--The term ``project study'' means a
feasibility report, reevaluation report, or environmental
impact statement prepared by the Corps of Engineers.
(b) Director of Independent Review.--The Secretary shall
appoint in the Office of the Secretary a Director of
Independent Review. The Director shall be selected from among
individuals who are distinguished experts in engineering,
hydrology, biology, economics, or another discipline related
to water resources management. The Secretary shall ensure, to
the maximum extent practicable, that the Director does not
have a financial, professional, or other conflict of interest
with projects subject to review. The Director of Independent
Review shall carry out the duties set forth in this section
and such other duties as the Secretary deems appropriate.
(c) Sound Project Planning.--
(1) Projects subject to planning review.--The Secretary
shall ensure that each project study for a water resources
project shall be reviewed by an independent panel of experts
established under this subsection if--
(A) the project has an estimated total cost of more than
$40,000,000, including mitigation costs;
(B) the Governor of a State in which the water resources
project is located in whole or in part, or the Governor of a
State within the drainage basin in which a water resources
project is located and that would be directly affected
economically or environmentally as a result of the project,
requests in writing to the Secretary the establishment of an
independent panel of experts for the project;
(C) the head of a Federal agency with authority to review
the project determines that the project is likely to have a
significant adverse impact on public safety, or on
environmental, fish and wildlife, historical, cultural, or
other resources under the jurisdiction of the agency, and
requests in writing to the Secretary the establishment of an
independent panel of experts for the project; or
(D) the Secretary determines on his or her own initiative,
or shall determine within 30 days of receipt of a written
request for a controversy determination by any party, that
the project is controversial because--
(i) there is a significant dispute regarding the size,
nature, potential safety risks, or effects of the project; or
(ii) there is a significant dispute regarding the economic,
or environmental costs or benefits of the project.
(2) Project planning review panels.--
(A) Project planning review panel membership.--For each
water resources project subject to review under this
subsection, the Director of Independent Review shall
establish a panel of independent experts that shall be
composed of not less than 5 nor more than 9 independent
experts (including at least 1 engineer, 1 hydrologist, 1
biologist, and 1 economist) who represent a range of areas of
expertise. The Director of Independent Review shall apply the
National Academy of Science's policy for selecting committee
members to ensure that members have no conflict with the
project being reviewed, and shall consult with the National
Academy of Sciences in developing lists of individuals to
serve on panels of experts under this subsection. An
individual serving on a panel under this subsection shall be
compensated at a rate of pay to be determined by the
Secretary, and shall be allowed travel expenses.
(B) Duties of project planning review panels.--An
independent panel of experts established under this
subsection shall review the project study, receive from the
public written and oral comments concerning the project
study, and submit a written report to the Secretary that
shall contain the panel's conclusions and recommendations
regarding project study issues identified as significant by
the panel, including issues such as--
(i) economic and environmental assumptions and projections;
(ii) project evaluation data;
(iii) economic or environmental analyses;
(iv) engineering analyses;
(v) formulation of alternative plans;
(vi) methods for integrating risk and uncertainty;
(vii) models used in evaluation of economic or
environmental impacts of proposed projects; and
(viii) any related biological opinions.
(C) Project planning review record.--
(i) In general.--After receiving a report from an
independent panel of experts established under this
subsection, the Secretary shall take into consideration any
recommendations contained in the report and shall immediately
make the report available to the public on the internet.
(ii) Recommendations.--The Secretary shall prepare a
written explanation of any recommendations of the independent
panel of experts established under this subsection not
adopted by the Secretary. Recommendations and findings of the
independent panel of experts rejected without good cause
shown, as determined by judicial review, shall be given equal
deference as the recommendations and findings of the
Secretary during a judicial proceeding relating to the water
resources project.
(iii) Submission to congress and public availability.--The
report of the independent panel of experts established under
this subsection and the written explanation of the Secretary
required by clause (ii) shall be included with the report of
the Chief of Engineers to Congress, shall be published in the
Federal Register, and shall be made available to the public
on the Internet.
(D) Deadlines for project planning reviews.--
(i) In general.--Independent review of a project study
shall be completed prior to the completion of any Chief of
Engineers report for a specific water resources project.
(ii) Deadline for project planning review panel studies.--
An independent panel of experts established under this
subsection shall complete its review of the project study and
submit to the Secretary a report not later than 180 days
after the date of establishment of the panel, or not later
than 90 days after the close of the public comment period on
a draft project study that includes a preferred alternative,
whichever is later. The Secretary may extend these deadlines
for good cause.
(iii) Failure to complete review and report.--If an
independent panel of experts established under this
subsection does not submit to the Secretary a report by the
deadline established by clause (ii), the Chief of Engineers
may continue project planning without delay.
(iv) Duration of panels.--An independent panel of experts
established under this subsection shall terminate on the date
of submission of the report by the panel.
(E) Effect on existing guidance.--The project planning
review required by this subsection shall be deemed to satisfy
any external review required by Engineering Circular 1105-2-
408 (31 May 2005) on Peer Review of Decision Documents.
(d) Safety Assurance.--
(1) Projects subject to safety assurance review.--The
Secretary shall ensure that the construction activities for
any flood damage reduction project shall be reviewed by an
independent panel of experts established under this
subsection if the Director of Independent Review determines
that--
(A) project performance is critical to the public health
and safety;
(B) reliability of project performance under emergency
conditions is critical;
(C) the project utilizes innovative materials or
techniques; or
(D) the project design is lacking in redundancy, or the
project has a unique construction sequencing or a short or
overlapping design construction schedule.
(2) Safety assurance review panels.--At the appropriate
point in the development of

[[Page S7930]]

detailed engineering and design specifications for each water
resources project subject to review under this subsection,
the Director of Independent Review shall establish an
independent panel of experts to review and report to the
Secretary on the adequacy of construction activities for the
project. An independent panel of experts under this
subsection shall be composed of not less than 5 nor more than
9 independent experts selected from among individuals who are
distinguished experts in engineering, hydrology, or other
pertinent disciplines. The Director of Independent Review
shall apply the National Academy of Science's policy for
selecting committee members to ensure that panel members have
no conflict with the project being reviewed. An individual
serving on a panel of experts under this subsection shall be
compensated at a rate of pay to be determined by the
Secretary, and shall be allowed travel expenses.
(3) Deadlines for safety assurance reviews.--An independent
panel of experts established under this subsection shall
submit a written report to the Secretary on the adequacy of
the construction activities prior to initiation of physical
construction and every two years thereafter until
construction activities are completed. The Director of
Independent Review may establish an alternate schedule if
such schedule would better serve the purposes of assuring
public safety, and upon written notification to the Committee
on Environment and Public Works of the Senate and the
Committee on Transportation and Infrastructure of the House
of Representatives.
(4) Safety assurance review record.--After receiving a
written report from an independent panel of experts
established under this subsection, the Secretary shall take
into consideration any recommendations contained in the
report and shall immediately make the report available to the
public on the internet. The Secretary also shall submit the
report to the Committee on Environment and Public Works of
the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives.
(e) Expenses.--
(1) In general.--The costs of an independent panel of
experts established under subsection (c) or (d) shall be a
Federal expense and shall not exceed--
(A) $250,000, 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) Waiver.--The Secretary, at the written request of the
Director of Independent Review, may waive the cost
limitations under paragraph (1) if the Secretary determines
appropriate.
(f) Report.--Not later than 5 years after the date of
enactment of this Act, the Secretary shall submit to Congress
a report describing the implementation of this section.
(g) Savings Clause.--Nothing in this section shall be
construed to affect any authority of the Secretary to cause
or conduct a peer review of the engineering, scientific, or
technical basis of any water resources project in existence
on the date of enactment of this Act.
______