Corps of Engineers Modernization and Improvement Act of 2004

        [Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2188 Introduced in Senate (IS)]

108th CONGRESS
2d Session
S. 2188

To provide for reform of the Corps of Engineers, and for other
purposes.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

March 10, 2004

Mr. Feingold (for himself, Mr. McCain and Mr. Daschle) introduced the
following bill; which was read twice and referred to the Committee on
Environment and Public Works

_______________________________________________________________________

A BILL

To provide for reform of the Corps of Engineers, and for other
purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Corps of Engineers
Modernization and Improvement Act of 2004''.
(b) Table of Contents.--The table of contents of this Act is as
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
TITLE I--MODERNIZING PROJECT PLANNING

Sec. 101. Modern planning principles.
Sec. 102. Independent review.
Sec. 103. Benefit-cost analysis.
Sec. 104. Benefit-cost ratio.
Sec. 105. Cost sharing.
TITLE II--MITIGATION

Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.
TITLE III--ADDRESSING THE PROJECT BACKLOG

Sec. 301. Project backlog.
Sec. 302. Primary mission focus.

SEC. 2. FINDINGS AND PURPOSES.

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

SEC. 3. DEFINITIONS.

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

TITLE I--MODERNIZING PROJECT PLANNING

SEC. 101. MODERN PLANNING PRINCIPLES.

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

``SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.

``(a) In General.--It is the intent of Congress that--
``(1) national economic development and environmental
protection and restoration are co-equal goals of water
resources project planning and management; and
``(2) Federal agencies manage and, if clearly justified,
construct water resource projects--
``(A) to meet national economic needs; and
``(B) to protect and restore the environment.
``(b) Revision of Planning Guidelines, Regulations and Circulars.--
Not later than 18 months after the date of enactment of the Corps of
Engineers Modernization and Improvement Act of 2004, the Secretary, in
collaboration with the National Academy of Sciences, shall develop
proposed revisions of, and revise, the planning guidelines,
regulations, and circulars of the Corps.
``(c) Additional Requirements.--Corps planning regulations revised
under subsection (b) shall--
``(1) incorporate new and existing analytical techniques
that reflect the probability of project benefits and costs;
``(2) apply discount rates provided by the Office of
Management and Budget;
``(3) eliminate biases and disincentives that discourage
the use of nonstructural approaches to water resources
development and management;
``(4) encourage, to the maximum extent practicable, the
restoration of ecosystems;
``(5) consider the costs and benefits of protecting or
degrading natural systems;
``(6) ensure that projects are justified by benefits that
accrue to the public at large;
``(7) ensure that benefit-cost calculations reflect a
credible schedule for project construction;
``(8) ensure that each project increment complies with
section 104;
``(9) include as a cost any increase in direct Federal
payments or subsidies and exclude as a benefit any increase in
direct Federal payments or subsidies; and
``(10) provide a mechanism by which, at least once every 5
years, the Secretary shall collaborate with the National
Academy of Sciences to review, and if necessary, revise all
planning regulations, guidelines, and circulars.
``(d) National Navigation and Port Plan.--
``(1) In general.--Not later than 18 months after the date
of enactment of the Corps of Engineers Modernization and
Improvement Act of 2004, the Corps shall develop and annually
update an integrated, national plan to manage, rehabilitate
and, if justified, modernize inland waterway and port
infrastructure to meet current national economic and
environmental needs.
``(2) Tools.--To develop the plan, the Corps shall employ
economic tools that--
``(A) recognize the importance of alternative
transportation destinations and modes; and
``(B) employ practicable, cost-effective congestion
management alternatives before constructing and
expanding infrastructure to increase waterway and port
capacity.
``(3) Benefits and proximity.--The Corps shall give
particular consideration to the benefits and proximity of
proposed and existing port, harbor, waterway, rail and other
transportation infrastructure in determining whether to
construct new water resources projects.
``(e) Notice and Comment.--The Secretary shall comply with the
notice and comment provisions of chapter 551 of title 5, United States
Code, in issuing revised planning regulations, guidelines and
circulars.
``(f) Applicability.--On completion of the revisions required under
this section, the Secretary shall apply the revised regulations to
projects for which a draft feasibility study or draft reevaluation
report has not yet been issued.
``(g) Project Reformulation.--Projects of the Corps, and separable
elements of projects of the Corps, that have been authorized for 10
years, but for which less than 15 percent of appropriations
specifically identified for construction have been obligated, shall not
be constructed unless a general reevaluation study demonstrates that
the project or separable element meets--
``(1) all project criteria and requirements applicable at
the time the study is initiated, including requirements under
this section; and
``(2) cost share and mitigation requirements of this
Act.''.
(b) Conforming Amendments.--
(1) Section 80 of the Water Resources Development Act of
1974 (42 U.S.C. 1962(d)-17) is repealed.
(2) Section 7(a) of the Department of Transportation Act
(Public Law 89-670; 80 Stat. 941) is repealed.

SEC. 102. INDEPENDENT REVIEW.

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

SEC. 103. BENEFIT-COST ANALYSIS.

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

SEC. 104. BENEFIT-COST RATIO.

(a) Recommendation of Projects.--Beginning in fiscal year 2004, in
the case of a water resources project that is subject to a benefit-cost
analysis, the Secretary may recommend the project for authorization by
Congress, and may choose the project as a recommended alternative in
any record of decision or environmental impact statement, only if the
project, in addition to meeting any other criteria required by law, has
projected national benefits that are at least 1.5 times as great as the
estimated total costs of the project, based on current discount rates
provided by the Office of Management and Budget.
(b) Review and Deauthorization of Projects.--
(1) Review.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall review each water
resources project described in paragraph (2) to determine
whether the projected benefits of the project are less than 1.5
times as great as the estimated total costs of the project.
(2) Projects subject to review.--A water resources project
shall be subject to review under paragraph (1) if--
(A) the project was authorized before the date on
which the review is commenced;
(B) the project is subject to a benefit-cost
analysis; and
(C) an amount that is less than 33 percent of the
estimated total costs of the project (excluding costs
of preconstruction engineering and design) has been
obligated for the project.
(3) Deauthorizations.--
(A) In general.--On completion of the review under
paragraph (1), the Secretary shall submit to Congress a
list that describes each water resources project the
projected benefits of which are less than 1.5 times as
great as the estimated total costs of the project.
(B) Projects.--A project included on the list under
subparagraph (A) shall be deauthorized effective
beginning 3 years after the date of submission of the
list to Congress unless, during that 3-year period,
Congress reauthorizes the project.
(4) Deauthorized projects for which construction has been
commenced.--In the case of a water resources project that is
deauthorized under paragraph (3) and for which
construction (other than preconstruction engineering and design) has
been commenced, the Secretary may take such actions as are necessary
with respect to the project to protect public health and safety and the
environment.

SEC. 105. COST SHARING.

(a) Inland Waterways.--
(1) Construction.--Section 102(a) of the Water Resources
Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
(A) in the first sentence, by striking ``One-half
of the costs of construction'' and inserting ``Forty-
five percent of the costs of construction''; and
(B) by striking the second sentence and inserting
``Fifty-five percent of those costs shall be paid only
from amounts appropriated from the Inland Waterways
Trust Fund.''.
(2) Operations and maintenance.--Section 102 of the Water
Resources Development Act of 1986 (33 U.S.C. 2212) is amended
by striking subsections (b) and (c) and inserting the
following:
``(b) Operation and Maintenance.--
``(1) Federal share.--The Federal share of the cost of
operation and maintenance shall be 100 percent in the case of--
``(A) a project described in paragraph (1) or (2)
of subsection (a); or
``(B) the portion of the project authorized by
section 844 that is allocated to inland navigation.
``(2) Source of federal share.--
``(A) General fund.--In the case of a project
described in paragraph (1) or (2) of subsection (a)
with respect to which the cost of operation and
maintenance is less than or equal to 2 cents per ton
mile, or in the case of the portion of the project
authorized by section 844 that is allocated to inland
navigation, the Federal share under paragraph (1) shall
be paid only from amounts appropriated from the general
fund of the Treasury.
``(B) General fund and inland waterways trust
fund.--In the case of a project described in paragraph
(1) or (2) of subsection (a) with respect to which the
cost of operation and maintenance is greater than 2 but
less than or equal to 10 cents per ton mile--
``(i) 75 percent of the Federal share under
paragraph (1) shall be paid only from amounts
appropriated from the general fund of the
Treasury; and
``(ii) 25 percent of the Federal share
under paragraph (1) shall be paid only from
amounts appropriated from the Inland Waterways
Trust Fund.
``(C) Inland waterways trust fund.--In the case of
a project described in paragraph (1) or (2) of
subsection (a) with respect to which the cost of
operation and maintenance is greater than 10 cents per
ton mile but less than 30 cents per ton mile, 100
percent of the Federal share under paragraph (1) shall
be paid only from amounts appropriated from the Inland
Waterways Trust Fund.
``(D) Non-federal responsibility.--
``(i) In general.--In the case of a project
described in paragraph (1) or (2) of subsection
(a) with respect to which the cost of operation
and maintenance is greater than 30 cents per
ton-mile, the cost of operations and
maintenance shall be a non-Federal
responsibility.
``(ii) Deauthorization.--In a case in which
the Secretary determines that the non-Federal
interests for a project described in clause (i)
are unable to pay for the cost of operations
and maintenance of the project, the project is
deauthorized as of the date of that
determination.''.
(b) Flood Damage Reduction.--Section 103 of the Water Resources
Development Act of 1986 (33 U.S.C. 2213) is amended--
(1) in subsections (a)(2) and (b), by striking ``35'' each
place it appears and inserting ``50'';
(2) in the paragraph heading of subsection (a)(2), by
striking ``35 percent minimum''' and inserting ``Minimum''';
and
(3) in the paragraph heading of subsection (b), by striking
``35'' and inserting ``50''.
(c) Beach Replacement.--Section 103(d)(2)(A) of the Water Resources
Development Act of 1986 (33 U.S.C. 2213(d)(2)) is amended--
(1) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(2) by inserting after subparagraph (A) the following:
``(B) 2004 and subsequent projects.--For any
project authorized after the date of enactment of the
Corps of Engineers Modernization and Improvement Act of
2004, the non-Federal cost of the periodic nourishment
of the project, or any measure for shore protection or
beach erosion control for the project, shall be 65
percent.''.

TITLE II--MITIGATION

SEC. 201. FULL MITIGATION.

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

SEC. 202. CONCURRENT MITIGATION.

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

SEC. 203. MITIGATION TRACKING SYSTEM.

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

TITLE III--ADDRESSING THE PROJECT BACKLOG

SEC. 301. PROJECT BACKLOG.

(a) Review and Report on Water Resources Construction Backlog.--
(1) Definitions.--In this subsection:
(A) Active.--The term ``active'', with respect to a
project, means that--
(i) the project is economically justified;
(ii) the project has received funding for--
(I) preconstruction engineering and
design; or
(II) construction; and
(iii) the non-Federal interests with
respect to the project have demonstrated
willingness and the ability to provide the
required non-Federal share.
(B) Deferred.--The term ``deferred'', with respect
to a project, means that the project--
(i) has doubtful economic justification;
(ii) requires reevaluation to determine the
economic feasibility of the project; or
(iii) is a project for which the non-
Federal interests are unable to provide
required cooperation.
(C) Inactive.--The term ``inactive'', with respect
to a project, means that--
(i) the project is not economically
justified;
(ii) the project no longer meets current
and prospective needs as described in a
feasibility report or general reevaluation
report;
(iii) the non-Federal interests with
respect to the project have not demonstrated
willingness or the ability to provide the
required non-Federal share; or
(iv)(I) the project most recently received,
under an Act of Congress, authorization or
reauthorization of construction more than 25
years before the date of enactment of this Act;
and
(II) an amount that is less than 33 percent
of the estimated total costs of the project
(excluding costs of preconstruction engineering
and design) has been obligated for the project
as of the date of enactment of this Act.
(D) Project.--The term ``project'' means a water
resources project, or a separable element of a water
resources project, that is authorized by law for
funding from--
(i) the Construction, General,
appropriations account; or
(ii) the construction portion of the Flood
Control, Mississippi River and Tributaries,
appropriations account.
(2) Study.--
(A) In general.--Not later than 1 year 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 study
consisting of--
(i) the list described in subparagraph (B);
and
(ii) the information described in
subparagraph (C).
(B) List.--The list referred to in subparagraph (A)
is a list of all authorized water resources projects--
(i) that have not been commenced; or
(ii) the construction of which has not been
completed.
(C) Required information.--Each project on the list
described in subparagraph (B) shall be accompanied by
information on--
(i) the primary purpose of the project;
(ii) the year in which construction of the
project was commenced;
(iii) the total estimated cost of the
project in current year dollars;
(iv) the benefit-cost ratio of the project,
determined based on current discount rates;
(v) the estimated annual benefits and
annual costs of the project;
(vi) the remaining additional benefits and
the remaining additional costs to complete
construction of the project (including the
ratio that remaining benefits bear to remaining
costs);
(vii)(I) the year during which the most
recent major studies of the feasibility and
design of the project were completed; and
(II) the year during which the most recent
environmental impact statement or environmental
assessment for the project was completed;
(viii) the date of the last year for which
economic data that was included in the most
recent analysis of the feasibility and
justification of the project was collected;
(ix) the status of each project as--
(I) reconnaissance, preconstruction
engineering and design, or
construction; and
(II) active, deferred, or inactive;
and
(x) the information described in paragraph
(3) for each particular type of project.
(3) Information for particular project type.--The study
under paragraph (2) shall include--
(A) in the case of a flood damage reduction
project--
(i) the extent to which the project
reflects national flood damage reduction
priorities as established by the Federal
Emergency Management Agency;
(ii)(I) the level of flood protection
provided; and
(II) to the maximum extent practicable, the
extent to which the project is based on
projected growth and the basis for each
projection of growth; and
(iii) the extent to which the project--
(I) restores natural aquatic
ecosystem functions; and
(II) avoids adverse environmental
impacts and risk before implementation
of mitigation activities;
(B) in the case of a navigation project--
(i)(I) the extent to which the economic
benefits of the project are based on existing
levels of commercial traffic rather than
projected growth in commercial traffic; and
(II) to the maximum extent practicable, the
extent to which the project is based on
projected growth and the basis for each
projection of growth; and
(ii) the extent of the likely environmental
benefits of the project, including the extent
of--
(I) remediation of contaminated
sediments, or reuse of dredged
material, to restore aquatic habitat;
and
(II) adverse environmental impacts
and risks of the project; and
(C) in the case of an environmental restoration
project--
(i) the extent to which the project--
(I) restores natural hydrologic
processes and the spatial extent of
aquatic habitat; and
(II) otherwise produces self-
sustaining environmental benefits; and
(ii) the extent to which the project
addresses critical national conservation
priorities, including preservation and
protection of endangered and threatened species
or habitat of endangered and threatened
species.
(4) Measurement and reporting.--
(A) In general.--The Secretary shall use objective
and quantifiable standards for measuring and reporting
the information required to be submitted under
paragraph (3).
(B) Alternative method of reporting.--In any case
in which the information required to be submitted under
subparagraph (B)(ii) or (C) of paragraph (3) cannot be
quantified, the information shall be reported through
an objective description of the benefits and impacts of
the applicable project.
(5) Availability to the public.--The study submitted to
Congress under paragraph (2) shall be made available to--
(A) any person on request; and
(B) the public on the Internet.
(b) Project Deauthorizations.--Section 1001 of the Water Resources
Development Act of 1986 (33 U.S.C. 579a) is amended to read as follows:

``SEC. 1001. PROJECT DEAUTHORIZATIONS.

``(a) Definitions.--In this section:
``(1) Construction of a project.--The term `construction of
a project' means--
``(A) with respect to a flood control project--
``(i) the acquisition of land, an easement,
or a right-of-way; or
``(ii) the performance of physical work
under a construction contract;
``(B) with respect to an environmental protection
and restoration project--
``(i) the acquisition of land, an easement,
or a right-of-way primarily to facilitate the
restoration of wetland or similar habitat; or
``(ii) the performance of physical work
under a construction contract--
``(I) to modify an existing project
facility; or
``(II) to construct a new
environmental protection or restoration
measure;
``(C) with respect to a shore protection project--
``(i) the acquisition of land, an easement,
or a right-of-way; or
``(ii) the performance of physical work
under a construction contract for a structural
or a nonstructural measure; and
``(D) with respect to any project that is not
described in subparagraph (A), (B), or (C), the
performance of physical work under a construction
contract.
``(2) Inactive.--The term `inactive', with respect to a
project, means that--
``(A) the project is not economically justified;
``(B) the project no longer meets current and
prospective needs as described in a feasibility report
or general reevaluation report;
``(C) the non-Federal interests with respect to the
project have not demonstrated willingness or the
ability to provide the required non-Federal share; or
``(D)(i) the project most recently received, under
an Act of Congress, authorization or reauthorization
for construction more than 25 years before the date of
enactment of this subparagraph; and
``(ii) an amount that is less than 33 percent of
the estimated total costs of the project (excluding
costs of preconstruction engineering and design) has
been obligated for the project as of the date of
enactment of this subparagraph.
``(3) Physical work under a construction contract.--The
term `physical work under a construction contract' does not
include any activity relating to--
``(A) project planning;
``(B) engineering and design;
``(C) relocation; or
``(D) the acquisition of land, an easement, or a
right-of-way.
``(4) Project.--The term `project' means a water resources
project, or a separable element of a water resources project,
that is authorized by law for funding from--
``(A) the Construction, General, appropriations
account; or
``(B) the construction portion of the Flood
Control, Mississippi River and Tributaries,
appropriations account.
``(b) Inactive Projects.--
``(1) List.--Not later than December 31, 2004, and
biennially thereafter, the Secretary shall submit to Congress a
list of inactive projects.
``(2) Deauthorization.--An inactive project shall be
deauthorized effective beginning 1 year after the date of
submission of a list under paragraph (1) that includes the
project unless, during that 1-year period, Congress
reauthorizes the project in accordance with the Corps of
Engineers Modernization and Improvement Act of 2004 and the
amendments made by that Act.
``(c) Projects for Which Actual Construction Has Not Begun.--
``(1) List.--The Secretary shall annually submit to
Congress a list of projects that have been authorized for
construction, but for which no actual construction has begun
and no Federal funds have been obligated for construction
during the 3 consecutive fiscal years preceding the fiscal year
in which the list is submitted.
``(2) Deauthorization.--A project authorized for
construction that is not subject to subsection (b) shall be
deauthorized effective beginning 5 years after the date of the
most recent authorization or reauthorization of the project
unless, during that 5-year period, Federal funds are obligated
for construction of the project.
``(d) Projects for Which Construction Has Been Suspended.--
``(1) List.--The Secretary shall annually submit to
Congress a list of projects--
``(A) that have been authorized for construction;
and
``(B) for which no Federal funds have been
obligated for construction during the 2 consecutive
fiscal years preceding the date of submission of the
list.
``(2) Deauthorization.--A project that is not subject to
subsection (b) but for which Federal funds have been obligated
for construction of the project shall be deauthorized if
Federal funds appropriated specifically for construction of the
project, as indicated in an Act of Congress or in accompanying
legislative report language, are not obligated for construction
of the project during the period of 3 fiscal years following
the last fiscal year in which Federal funds were obligated for
construction of the project.
``(e) Completed Projects.--Subsections (b), (c), and (d) shall not
apply--
``(1) in the case of a beach nourishment project, after
initial construction of the project has been completed; or
``(2) in the case of any other project, after construction
of the project has been completed.
``(f) Congressional Notifications.--On submission of a list under
subsection (b), (c), or (d), the Secretary shall notify each Senator in
whose State, and each Member of the House of Representatives in whose
district, a project on the list is or would be located.
``(g) Final Deauthorization List.--The Secretary shall annually
publish in the Federal Register a list of all projects deauthorized
under subsections (b), (c), and (d).''.
(c) Waterways.--
(1) Report by academy.--
(A) In general.--Not later than 1 year after the
date of enactment of this Act, the Secretary shall
enter into a contract with the Academy to prepare a
report on waterways in the Inland Waterways System.
(B) Contents of report.--The report shall--
(i) review the Inland Waterways System;
(ii) provide data on the commercial traffic
being carried by each waterway in the System as
of the date of the report;
(iii) provide an analysis of the extent to
which prior projections of the commercial
traffic carried by each waterway in the System
were accurate; and
(iv) based on the information provided
under clauses (ii) and (iii)--
(I) identify underused waterways in
the System;
(II) propose new economic and
environmental uses for underused
waterways;
(III) describe statutory and
administrative reforms that are needed
to ease the transition from the current
authorized uses of the System to new
economic and environmental uses of the
System; and
(IV) recommend which waterways in
the System should be decommissioned.
(2) Decommissioning mechanism for underused waterways.--Not
later than 1 year after the date of enactment of this Act, the
Secretary shall by regulation establish a mechanism for the
decommissioning of waterways that--
(A) are no longer economically justified, based on
commercial traffic and current discount rates; or
(B) are no longer in the national interest.

SEC. 302. PRIMARY MISSION FOCUS.

Any water resources project that does not have as a primary project
purpose 1 of the primary Corps missions of environmental protection,
flood control, or navigation and that, as of the date of enactment of
this section, has no appropriated construction funding, is
deauthorized.
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