Water Resources Planning and Modernization Act of 2007

Mr. President, today I introduce the Water Resources Planning and Modernization Act of 2007. I am pleased to be joined in introducing this legislation by the senior Senator from Arizona, Mr. McCain. We have worked together for some time to modernize the U.S. Army Corps of Engineers and I thank Senator McCain for his continued commitment to this issue.

I was pleased that the Senate made significant progress last Congress and included many key reforms in the Senate-passed Water Resources Development Act. I again thank my colleagues who cosponsored a successful independent peer review amendment: the Senator from Delaware, Mr. Carper; the Senator from Connecticut, Mr. Lieberman; the former Senator from Vermont, Mr. Jeffords; and the Senators from Maine, Ms. Collins and Ms. Snowe. I also want to acknowledge the Senator from California, Mrs. Boxer, for her support for this amendment. In addition, I appreciate the efforts to include reform provisions in the underlying bill by the then-Environment and Public Works Committee Chairs and Ranking Members: the former Senator from Vermont, Mr. Jeffords; the Senator from Montana, Mr. Baucus; the Senator from Oklahoma, Mr. Inhofe; and the Senator from Missouri, Mr. Bond. After six years of efforts on this issue, we made significant progress. However, negotiations between the House and Senate stalled and no conference report was agreed to.

By introducing this bill today, I am renewing my efforts to ensure that the Corps of Engineers' water resources planning is brought into the 21st century. As we all know, Hurricane Katrina produced one of the most tragic and costly natural disasters in our Nation's history. Water resources projects authorized by Congress and planned by the Corps of Engineers contributed to the loss of vital coastal wetlands (which can provide natural buffers from storm surge), intensified the storm surge into New Orleans, and encouraged development in flood-prone areas.

The flawed project planning, however, did not end there. Floodwalls and levees that the Corps built to protect New Orleans failed catastrophically during Hurricane Katrina. It is now well recognized and indeed, the Corps has acknowledged--that flawed engineering and construction led to those failures and the flooding of much of New Orleans.

Over the past decade, dozens of governmental and scientific studies have documented other flaws in Corps of Engineers' project planning. Most recently, the Government Accountability Office (GAO) testified that recent Corps studies ``did not provide a reasonable basis for decision-making'' because they were ``were fraught with errors, mistakes, and miscalculations, and used invalid assumptions and outdated data.'' The GAO found that the recurring problems at the agency were ``systemic in nature and therefore prevalent throughout the Corps' Civil Works portfolio.''

We can, and must, do better.

Congress should not authorize additional Army Corps projects until it has considered and passed the reforms included in the Water Resources Planning and Modernization Act. From ensuring large projects are sound to using natural resources to protect our communities, modernizing water resources policy is a national priority.

The Water Resources Planning and Modernization Act of 2007 represents a sensible effort to increase our environmental stewardship and significantly reduce the government waste inherent in poorly designed or low priority U.S. Army Corps of Engineers projects. It represents a way to both protect the environment and save taxpayer dollars. With support from Taxpayers for Common Sense Action, National Taxpayers Union, Council for Citizens Against Government Waste, American Rivers, Association of State Wetland Managers, Defenders of Wildlife, Earthjustice, Environmental Defense, Friends of the Earth, National Wildlife Federation, Republicans for Environmental Protection, Sierra Club, Surfrider Foundation, and the World Wildlife Fund, the bill has the backing of a committed and diverse coalition.

The Water Resources Planning and Modernization Act of 2007 can be broadly divided into five parts: ensuring sound projects and responsible spending, valuing our natural resources, focusing our resources, identifying vulnerabilities, and updating the Army Corps of Engineer's planning guidelines.

To ensure that Corps water resources projects are sound, the bill requires independent review of those projects estimated to cost over $40 million, those requested by a Governor of an affected state, those which the head of a federal agency has determined may lead to a significant adverse impact, or those that the Secretary of the Army has found to be controversial. As crafted in the bill, independent review should not increase the length of time required for project planning but would protect the public--both those in the vicinity of massive projects and those whose tax dollars are funding projects. The Director of Independent Review can also require independent review of the technical designs and construction of flood damage reduction projects to ensure public safety and welfare. The independent review provision is identical to that supported by a majority of my colleagues last Congress and included in the Senate-passed WRDA.

We must do a better job of valuing our natural resources, such as wetlands, that provide important services. These resources can help buffer communities from storms, filter contaminants out of our water, support vibrant economies, and provide vital fish and wildlife habitat. Recognizing the role

of these natural systems, the Water Resources Planning and Modernization Act of 2007 brings the Corps' 1986 mitigation standards into line with their regulatory program by requiring Corps water resources projects to meet the same mitigation standard that is required of all private citizens and other entities under the Clean Water Act. Where States have adopted stronger mitigation standards, the Corps must meet those standards. I feel very strongly that the Federal government should be able to live up to this requirement. Unfortunately, all too often, the Corps has not completed required mitigation. This legislation will make sure that mitigation is completed, that the true costs of mitigation are accounted for in Corps projects, and that the public is able to track the progress of mitigation projects.

Our current prioritization process is not serving the public good. To address this problem, the bill reinvigorates the Water Resources Council, originally established in 1965, and charges it with providing Congress a prioritized list of authorized water resource projects within one year of enactment and then every two years following. The prioritized list would also be printed in the Federal Register for the public to see. The Water Resources Council described in the bill, comprised of cabinet-level officials, would bring together varied perspectives to shape a list of national needs. In short, the prioritization process would be improved to make sure Congress has the tools to more wisely invest limited resources while also increasing public transparency in decision making--both needed and reasonable improvements to the status quo.

Taking stock of our vulnerabilities to natural disasters must also be a priority. For this reason, the bill also directs the Water Resources Council to identify and report to Congress on the nation's vulnerability to flood and related storm damage, including the risk to human life and property, and relative risks to different regions of the country. The Water Resources Council would also recommend improvements to the nation's various flood damage reduction programs to better address those risks. Many of these improvements were discussed in a government report following the 1993 floods so the building blocks are available; we just need to update the assessment. Then, of course, we must actually take action based on the assessment. To help speed such action, the legislation specifies that the Administration will submit a response to Congress, including legislative proposals to implement the recommendations, on the Water Resources Council report no later than 90 days after the report has been made public. We cannot afford to have this report, which will outline improvements to our flood damage reduction programs, languish like others before it.

The process by which the Army Corps of Engineers analyzes water projects should undergo periodic revision. Unfortunately, the Corps' principles and guidelines, which bind the planning process, have not been updated since 1983. This is why the bill requires that the Water Resources Council work in coordination with the National Academy of Sciences to propose periodic revisions to the Corps' planning principles and guidelines, regulations, and circulars. Updating the project planning process should involve consideration of a variety of issues, including the use of modern economic analysis and the same discount rates as used by all other Federal agencies. Simple steps such as these will lead to more precise estimates of project costs and benefits, a first step to considering whether a project should move forward.

Modernizing all aspects of our water resources policy will help restore credibility to a Federal agency historically rocked by scandal and currently plagued by public skepticism. Congress has long used the Army Corps of Engineers to facilitate favored pork-barrel projects, while periodically expressing a desire to change its ways. Back in 1836, a House Ways and Means Committee report referred to Congress ensuring that the Corps sought ``actual reform, in the further prosecution of public works.'' Over 150 years later, the need for actual reform is stronger than ever.

My office has strong working relationships with the Detroit, Rock Island, and St. Paul District Offices that service Wisconsin, and I do not want this bill to be misconstrued as reflecting on the work of those district offices. What I do want is the fiscal and management cloud over the entire Army Corps to dissipate so that the Corps can better contribute to our environment and our economy--without wasting taxpayer dollars or endangering public safety.

I wish the changes we are proposing today were not needed, but unfortunately that is not the case. In fact, if there were ever a need for the bill, it is now. We must make sure that future Corps projects produce predicted benefits, are in furtherance of national priorities, and do not have negative environmental impacts. This bill gives the Corps the tools it needs to do a better job and focuses the attention of Congress on national needs, which is what the American taxpayers and the environment deserve.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to cosponsor the Restoring the Constitution Act of 2007, which was introduced today by Senator Dodd. It amends the deeply flawed Military Commissions Act of 2006 to restore basic due process rights and to ensure that no person is subject to indefinite detention without charge based on the sole discretion of the President.

Let me be clear: I welcome efforts to bring terrorists to justice. This administration has for too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.

Last year, the President agreed to consult with Congress on the makeup of military commissions only because he was essentially ordered to do so by the Supreme Court in the Hamdan decision. Congress should have taken that opportunity to pass legislation that would allow these trials to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, would have had the potential to demonstrate to the world that our democratic, constitutional system of government is not a hindrance but a source of strength in fighting those who attacked us.

Instead, we passed the Military Commissions Act, legislation that violates the basic principles and values of our constitutional system of government. It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity for them to challenge their detention in court. And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death.

The checks and balances of our system of government and the fundamental fairness of the American people and legal system are among our greatest strengths in the fight against terrorism. I was deeply disappointed that Congress enacted the Military Commissions Act. The day that bill became law was a stain on our Nation's history.

It is time to undo the harm caused by that legislation.

The Restoring the Constitution Act amends the Military Commissions Act to remedy its most serious flaws, and I am pleased to support it.

First of all, this legislation would restore the great writ of habeas corpus, to ensure that detainees at Guantanamo Bay and elsewhere-- people who have been held for years but have not

been tried or even charged with any crime--have the ability to challenge their detention in court. Senator Dodd's bill would repeal the habeas stripping provisions of both the Military Commissions Act and the Detainee Treatment Act.

Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

As a group of retired judges wrote to Congress last year, habeas corpus ``safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully.''

The Military Commissions Act fundamentally altered that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it eliminated the right of habeas corpus.

Under the Military Commissions Act, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial, without due process, without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation. Under the Dodd bill, we would not have to wait. We would restore the right to habeas corpus now. We can provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice, without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.

Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular--the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless it can be said with absolute certainty that every person detained as an enemy combatant was correctly detained--and there is ample evidence to suggest that is not the case-- then we should make sure that people can't simply be locked up forever, without court review, based on someone slapping a ``terrorist'' label on them.

We must return to the great writ. We must be true to our Nation's proud traditions and principles by restoring the writ of habeas corpus, by making clear that we do not permit our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.

But the Restoring the Constitution Act does far more than restore habeas corpus. It also addresses who can be subject to trial by military commission.

The Military Commissions Act was justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men transferred to Guantanamo Bay in 2006. Yet if you look at the fine print of that legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of planning the September 11 attacks, but also individuals, including legal permanent residents of this country, who are alleged to have ``purposefully and materially supported hostilities'' against the United States or its allies.

This is extremely broad. And by including hostilities not only against the United States but also against its allies, the Military Commissions Act allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.

Not only that, but the Military Commissions Act would also define as an unlawful enemy combatant subject to trial by military commission, anyone who ``has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.'' This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.

Senator Dodd's bill makes clear that the President cannot unilaterally decide who is eligible for trial by military commission. Under the Dodd bill, in order to be tried by military commission, an individual must have directly participated in hostilities against the United States in a zone of active combat, or have been involved in the September 11 attacks, and cannot be a lawful enemy combatant.

Senator Dodd's bill also addresses the structure and process of the military commissions themselves. It ensures that these military commission procedures hew closely to the long-established military system of justice, as recommended by countless witnesses at congressional hearings last summer.

Some examples of the ways in which the Dodd bill improves the military commission procedures include: It prevents the use of evidence in court gained through torture or coercion. It ensures that any evidence seized within the United States without a search warrant cannot be introduced as evidence. It empowers military judges to exclude hearsay evidence they deem to be unreliable. It authorizes the existing U.S. Court of Appeals for the Armed Forces to review decisions by military commissions, rather than the newly created ``Court of Military Commission Review,'' whose members would be appointed by the Secretary of Defense. And it provides for expedited judicial review of the Military Commissions Act to determine the constitutionally of its provisions before anyone is tried by military commission, so that we will not face even more delays in the future.

Many of these provisions were included in the bill passed by the Senate Armed Services Committee in September 2006, but then stripped out or altered in backroom negotiations with the Administration. The bill also improves changes to the War Crimes Act and emphasizes the importance of compliance with the Geneva Conventions.

In sum, Senator Dodd's legislation addresses many of the most troubling and legally suspect provisions of the Military Commissions Act. Congress would be wise to make these changes now, rather than wait around while the Military Commissions Act is subject to further legal challenge, and another 4 or 5 years are squandered while cases work their way through the courts again.

In closing let me quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: ``Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him.'' How sad that Congress passed legislation about which the same cannot be said. We can and must undo this mistake.

Mr. President, I rise today to introduce the Restoring the Constitution Act of 2007--a bill to provide for the effective prosecution of terrorists and guarantee due process rights. I am pleased to be joined by Senators Leahy, Feingold, and Menendez as original cosponsors. This bill would make significant important changes to the Military Commissions Act of 2006 which became law last October.

I have served in this body for more than a quarter-century, but I remember few days darker than September 28, 2006, the day the Senate passed President Bush's Military Commissions Act. Let me be honest with you, I believe this body gave in to fear that day. I believe we looked for refuge in the rule of men, when we should have trusted in the rule of law.

Restoring the Constitution Act of 2007 is more than mere tinkering with provisions of the Military Commissions Act. This legislation, which is similar to the bill that I introduced in the last Congress, makes major and important changes to that law in order to ensure we have the essential legal tools to achieve a lasting American victory without violating American values.

What does this proposed legislation do?

It restores the writ of habeas corpus for individuals held in U.S. custody.

It narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in a zone of active combat, who are not lawful combatants.

It requires that the United States live up to its Geneva Convention obligations by deleting a prohibition in the law that bars detainees from invoking Geneva Conventions as a source of rights at trial.

It permits the accused to retain qualified civilian attorneys to represent them at trial.

It prevents the use of evidence in court gained through the unreliable and immoral practices of torture and coercion.

It charges the military judge with the responsibility for ensuring that the jury is appropriately informed as to the sources, methods and activities associated with developing out of court statements proposed to be introduced at trial, or alternatively that the statement is not introduced.

It empowers military judges to exclude hearsay evidence they deem to be unreliable.

It authorizes the U.S. Court of Appeals for the Armed Forces to review decisions by the military commissions.

It limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight.

It clarifies the definition of war crimes in statute to include certain violations of the Geneva Conventions.

Finally, it provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.

To be clear--I absolutely believe that under very clearly proscribed circumstances military commissions can be a useful instrument for bringing our enemies to justice. But those who ask us to choose between national security and moral authority are offering us a false choice, and a dangerous one. Our Nation has been defeating tyrants and would-be tyrants for more than two centuries. And in all that struggle, we've never sold our principles--because if We did, we would be walking in the footsteps of those we most despise.

In times of peril, throwing away due process has been a constant temptation--but that is why we honor so highly those who resisted it. At Nuremberg, America rejected the certainty of execution for the uncertainty of a trial, and gave birth to a half-century of moral authority. Today I am asking my colleagues to reclaim that tradition, to put the principles of the Constitution above the passion of the moment. That reclamation can begin today--if we remedy President Bush's repugnant law. We can do it--and keep America Secure at the same time.

Freedom from torture. The right to counsel. Habeas corpus. To be honest, it still amazes me that we have to come to the floor of the Senate to debate these protections at all. What would James Madison have said if you told him that someday in the future, a Senator from Connecticut would be forced to publicly defend habeas corpus, the defendant's right to a day in court, the foundation of Our legal system dating back to the 13 century? What have we come to that such long- settled, long-honored rights have been called into question?

But here we are. And now it is upon us to renew them. I'd like to talk in detail about several key components of my legislation. The Military Commissions Act eliminated habeas corpus. Habeas corpus allows a person held by the government to question the legality of his detention. In my view, to deny this right not only undermines the rule of law, but damages the very fabric of America. It is not who we are, and it is not who we aspire to be. My bill reopens the doors to the Court house by restoring the writ of habeas corpus for individuals held in U.S. custody.

By approving the Military Commissions Act, Congress abdicated its constitutionally-mandated authority and responsibility to safeguard this principle and serve as a co-equal check on the executive branch. This law confers an unprecedented level of power on the president, allowing him the sole right to designate any individual as an ``unlawful enemy combatant'' if he or she engaged in hostilities or supported hostilities against the United States. In my view and in the view of many legal experts, this definition of ``unlawful enemy combatant'' is unmanageably vague. As we have all seen, ``unlawful enemy combatants'' are subject to arrest and indefinite detention, in many cases without ever being changed with a crime, let alone being found guilty. My bill would curtail potential abuse of the unlawful enemy combatant designation by narrowing the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States in ``a zone of active combat'', and who are not lawful combatants. This correction is desperately needed to restore America's standing in the world and to right injustices that have recently been documented by international human rights organizations.

According to the Pentagon, last October, only 70 out of the 435 detainees housed at U.S. prison camps were expected to face a military trial, leaving hundreds of others to be held indefinitely. And while the Pentagon acknowledges that at least 110 of these detainees were labeled ``ready to release,'' for some reason they have been kept under lock and key. Then there are stories such as the one about Asif Iqbal, a British humanitarian aid volunteer who, according to a January 10, 2007 Associated Press story, was mistakenly captured in Afghanistan and subjected to isolation, painful positioning, screeching music, strobe

lights, sleep deprivation, and extreme temperatures. After three months, of enduring such treatment, Iqbal was released in 2004 without any charges brought against him.

Such sordid episodes have gravely undermined our apparent commitment to the Geneva Conventions and damaged our status both at home and in the global community. By failing to reaffirm our obligations under these vital treaties, the Military Commissions Act has only further eroded America's moral authority and perhaps ceded our nation's status as the leading proponent of international law and human rights. For this reason, the legislation I am offering today will reaffirm our obligations under the Geneva Conventions in several key ways. First, it would allow detainees to invoke the Geneva Conventions as a source of rights in their trials, overturning a ban put in place by the Military Commissions Act. Second, this legislation will limit the authority of the President to interpret and redefine the meaning and application of the Geneva Conventions by subjecting this authority to Congressional and judicial oversight. Lastly, my bill would statutorily define certain violations of the Geneva Conventions as war crimes. These provisions are all vitally important in allowing the United States to effectively wage the war on terror. The war that we are currently waging requires increasing international cooperation, but the President's plan puts us on a path of increasing isolation from even our staunchest allies.

Furthermore, this path is undermining our government's commitments to fundamental tenets of the American legal system. One of these tenets entails the right of the accused not only to confront his/her accuser but also to retain an attorney to represent him/her at trial. This is a basic right afforded to even the most egregious criminals under domestic law. And yet, under the administration's plan, this measure is being abandoned. In response, my bill sets standards for legal representation and allows for civilian legal counsel in military commission proceedings.

Even more importantly, my bill improves on these proceedings by prohibiting the use in court of any evidence that was gained through the unreliable and immoral practices of coercion. Incredibly, the Military Commissions Act lacks this blanket ban on evidence gained through torture. This is critically important for two very different reasons. Torture has been proven to be ineffective in interrogations, yielding highly unreliable information because a detainee, hoping to end the pain, will simply say whatever he believes an interrogator wants to hear. Second, torture allows foreign militaries to mistreat future American prisoners of war and use U.S. actions as an excuse. No one has said it with more authority than our colleague, Senator John McCain.

As he stated last year, ``the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women . . . the cruel actions of a few to darken the reputation of our country in the eyes of millions,''

To address these concerns, my bill restores to military judges the responsibility of ensuring that information introduced at trial has not been obtained through methods defined as cruel, inhuman, or degrading treatment by the Detainee Treatment Act of 2005. Sadly, the Military Commissions Act shows disrespect for and mistrust of the highly trained professionals on our military's bench by stripping them of autonomy and authority. The legislation I am proposing today empowers military judges to exclude hearsay evidence they deem to be unreliable. In addition, this bill will grant military judges discretion in the event that classified evidence has a bearing on the innocence of an individual but is excluded due to national security concerns and declassified alternatives are insufficient. America's military judges have been fully trained and prepared to handle classified information. The Bush administration's failure to recognize this fact is an insult to the men and women of our military's bench and an affront to our military's justice system.

Unlike the current administration, I trust our courts to be able to handle the delicate legal and national security issues inherent in the cases involving so-called unlawful enemy combatants. This legislation therefore provides for appeals of the military commissions' decisions to be heard by the U.S. Court of Appeals for the Armed Forces. In my view, the right to an appeal is one of the most fundamental rights granted to anyone in our justice system. We 3 grant appeals to people accused of some of the most heinous crimes imaginable. We do this because we know that courts are not infallible. They can err in their decisions, and in order for these mistakes to be rectified and to avoid punishing innocent men and women, appeals must be allowed.

All of these provisions are important. But perhaps none is more urgent than the final measure in my bill, which requires expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions. I believe that the United States Congress made a crucial mistake--that is why we must ensure that each provision of the Administration's Military Commissions Act is quickly reviewed by our Nation's courts. I believe that upon such review, those best qualified to make these judgments--members of our esteemed judiciary--will see to it that the most egregious provisions of this act will be overturned.

All 100 members of this body have been given the gravest of responsibilities. The people of this country have entrusted us with this Nation's security; and they have entrusted us with this Nation's principles. But those who argue that our principles stand in the way of our security are sadly, sorely mistaken: They are the source of our strength.

Five months ago, we departed from that source. But it is not too late to turn back. It is not too late to redeem our error. I implore my colleagues to join me.

Mr. President, today I introduce the Water Resources Planning and Modernization Act of 2007. I am pleased to be joined in introducing this legislation by the senior Senator from Arizona, Mr. McCain. We have worked together for some time to modernize the U.S. Army Corps of Engineers and I thank Senator McCain for his continued commitment to this issue.

I was pleased that the Senate made significant progress last Congress and included many key reforms in the Senate-passed Water Resources Development Act. I again thank my colleagues who cosponsored a successful independent peer review amendment: the Senator from Delaware, Mr. Carper; the Senator from Connecticut, Mr. Lieberman; the former Senator from Vermont, Mr. Jeffords; and the Senators from Maine, Ms. Collins and Ms. Snowe. I also want to acknowledge the Senator from California, Mrs. Boxer, for her support for this amendment. In addition, I appreciate the efforts to include reform provisions in the underlying bill by the then-Environment and Public Works Committee Chairs and Ranking Members: the former Senator from Vermont, Mr. Jeffords; the Senator from Montana, Mr. Baucus; the Senator from Oklahoma, Mr. Inhofe; and the Senator from Missouri, Mr. Bond. After six years of efforts on this issue, we made significant progress. However, negotiations between the House and Senate stalled and no conference report was agreed to.

By introducing this bill today, I am renewing my efforts to ensure that the Corps of Engineers' water resources planning is brought into the 21st century. As we all know, Hurricane Katrina produced one of the most tragic and costly natural disasters in our Nation's history. Water resources projects authorized by Congress and planned by the Corps of Engineers contributed to the loss of vital coastal wetlands (which can provide natural buffers from storm surge), intensified the storm surge into New Orleans, and encouraged development in flood-prone areas.

The flawed project planning, however, did not end there. Floodwalls and levees that the Corps built to protect New Orleans failed catastrophically during Hurricane Katrina. It is now well recognized and indeed, the Corps has acknowledged--that flawed engineering and construction led to those failures and the flooding of much of New Orleans.

Over the past decade, dozens of governmental and scientific studies have documented other flaws in Corps of Engineers' project planning. Most recently, the Government Accountability Office (GAO) testified that recent Corps studies ``did not provide a reasonable basis for decision-making'' because they were ``were fraught with errors, mistakes, and miscalculations, and used invalid assumptions and outdated data.'' The GAO found that the recurring problems at the agency were ``systemic in nature and therefore prevalent throughout the Corps' Civil Works portfolio.''

We can, and must, do better.

Congress should not authorize additional Army Corps projects until it has considered and passed the reforms included in the Water Resources Planning and Modernization Act. From ensuring large projects are sound to using natural resources to protect our communities, modernizing water resources policy is a national priority.

The Water Resources Planning and Modernization Act of 2007 represents a sensible effort to increase our environmental stewardship and significantly reduce the government waste inherent in poorly designed or low priority U.S. Army Corps of Engineers projects. It represents a way to both protect the environment and save taxpayer dollars. With support from Taxpayers for Common Sense Action, National Taxpayers Union, Council for Citizens Against Government Waste, American Rivers, Association of State Wetland Managers, Defenders of Wildlife, Earthjustice, Environmental Defense, Friends of the Earth, National Wildlife Federation, Republicans for Environmental Protection, Sierra Club, Surfrider Foundation, and the World Wildlife Fund, the bill has the backing of a committed and diverse coalition.

The Water Resources Planning and Modernization Act of 2007 can be broadly divided into five parts: ensuring sound projects and responsible spending, valuing our natural resources, focusing our resources, identifying vulnerabilities, and updating the Army Corps of Engineer's planning guidelines.

To ensure that Corps water resources projects are sound, the bill requires independent review of those projects estimated to cost over $40 million, those requested by a Governor of an affected state, those which the head of a federal agency has determined may lead to a significant adverse impact, or those that the Secretary of the Army has found to be controversial. As crafted in the bill, independent review should not increase the length of time required for project planning but would protect the public--both those in the vicinity of massive projects and those whose tax dollars are funding projects. The Director of Independent Review can also require independent review of the technical designs and construction of flood damage reduction projects to ensure public safety and welfare. The independent review provision is identical to that supported by a majority of my colleagues last Congress and included in the Senate-passed WRDA.

We must do a better job of valuing our natural resources, such as wetlands, that provide important services. These resources can help buffer communities from storms, filter contaminants out of our water, support vibrant economies, and provide vital fish and wildlife habitat. Recognizing the role

of these natural systems, the Water Resources Planning and Modernization Act of 2007 brings the Corps' 1986 mitigation standards into line with their regulatory program by requiring Corps water resources projects to meet the same mitigation standard that is required of all private citizens and other entities under the Clean Water Act. Where States have adopted stronger mitigation standards, the Corps must meet those standards. I feel very strongly that the Federal government should be able to live up to this requirement. Unfortunately, all too often, the Corps has not completed required mitigation. This legislation will make sure that mitigation is completed, that the true costs of mitigation are accounted for in Corps projects, and that the public is able to track the progress of mitigation projects.

Our current prioritization process is not serving the public good. To address this problem, the bill reinvigorates the Water Resources Council, originally established in 1965, and charges it with providing Congress a prioritized list of authorized water resource projects within one year of enactment and then every two years following. The prioritized list would also be printed in the Federal Register for the public to see. The Water Resources Council described in the bill, comprised of cabinet-level officials, would bring together varied perspectives to shape a list of national needs. In short, the prioritization process would be improved to make sure Congress has the tools to more wisely invest limited resources while also increasing public transparency in decision making--both needed and reasonable improvements to the status quo.

Taking stock of our vulnerabilities to natural disasters must also be a priority. For this reason, the bill also directs the Water Resources Council to identify and report to Congress on the nation's vulnerability to flood and related storm damage, including the risk to human life and property, and relative risks to different regions of the country. The Water Resources Council would also recommend improvements to the nation's various flood damage reduction programs to better address those risks. Many of these improvements were discussed in a government report following the 1993 floods so the building blocks are available; we just need to update the assessment. Then, of course, we must actually take action based on the assessment. To help speed such action, the legislation specifies that the Administration will submit a response to Congress, including legislative proposals to implement the recommendations, on the Water Resources Council report no later than 90 days after the report has been made public. We cannot afford to have this report, which will outline improvements to our flood damage reduction programs, languish like others before it.

The process by which the Army Corps of Engineers analyzes water projects should undergo periodic revision. Unfortunately, the Corps' principles and guidelines, which bind the planning process, have not been updated since 1983. This is why the bill requires that the Water Resources Council work in coordination with the National Academy of Sciences to propose periodic revisions to the Corps' planning principles and guidelines, regulations, and circulars. Updating the project planning process should involve consideration of a variety of issues, including the use of modern economic analysis and the same discount rates as used by all other Federal agencies. Simple steps such as these will lead to more precise estimates of project costs and benefits, a first step to considering whether a project should move forward.

Modernizing all aspects of our water resources policy will help restore credibility to a Federal agency historically rocked by scandal and currently plagued by public skepticism. Congress has long used the Army Corps of Engineers to facilitate favored pork-barrel projects, while periodically expressing a desire to change its ways. Back in 1836, a House Ways and Means Committee report referred to Congress ensuring that the Corps sought ``actual reform, in the further prosecution of public works.'' Over 150 years later, the need for actual reform is stronger than ever.

My office has strong working relationships with the Detroit, Rock Island, and St. Paul District Offices that service Wisconsin, and I do not want this bill to be misconstrued as reflecting on the work of those district offices. What I do want is the fiscal and management cloud over the entire Army Corps to dissipate so that the Corps can better contribute to our environment and our economy--without wasting taxpayer dollars or endangering public safety.

I wish the changes we are proposing today were not needed, but unfortunately that is not the case. In fact, if there were ever a need for the bill, it is now. We must make sure that future Corps projects produce predicted benefits, are in furtherance of national priorities, and do not have negative environmental impacts. This bill gives the Corps the tools it needs to do a better job and focuses the attention of Congress on national needs, which is what the American taxpayers and the environment deserve.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the No Child Left Behind Flexibility and Improvements Act. I am pleased to be joined in this effort by my colleague from Maine, Senator Snowe. Our legislation would give greater local control and flexibility to Maine and other States in their efforts to implement the No Child Left Behind Act, NCLB, and provides common sense reforms in keeping with the worthy goals of NCLB.

Since NCLB was enacted in 2002, I have had the opportunity to meet with numerous Maine educators to discuss their concerns with the law. In response to their concerns, in March 2004, Senator Snowe and I commissioned the Maine NCLB Task Force to examine the implementation issues facing Maine under both NCLB and the Maine Learning Results. Our task force included members from every county in the State and had superintendents, teachers, principals, school board members, parents, business leaders, former State legislators, special education experts, assessment specialists, officials from the Maine Department of Education, a former Maine Commissioner of Education, and the Dean from the University of Maine's College of Education and Human Development.

After a year of study, the Task Force presented us with its final report outlining recommendations for possible statutory and regulatory changes to the Act. These recommendations form the basis of the legislation that we are introducing today.

First, our legislation would provide new flexibility for teachers of multiple subjects at the secondary school level to help them meet the ``highly qualified teacher'' requirements. Unfortunately, the current regulations place undue burdens on teachers at small and rural schools who often teach multiple subjects due to staffing needs, and on special education teachers who work with students on a variety of subjects throughout the day. Under the bill, provided these teachers are highly qualified for one subject they teach, they will be provided additional time and less burdensome avenues to satisfy the remaining requirements.

Second, our legislation would provide greater flexibility to States in the ways that they demonstrate student progress in meeting State education standards. Specifically, it would permit States to use a cohort growth model, which tracks the progress of the same group of students over time. It would also permit the use of an ``indexing'' model, where progress is measured based on the number of students whose scores improve from, for example, a ``below-basic'' to a ``basic'' level, and not simply on the number of students who cross the ``proficient'' line.

Third, our legislation would provide schools with better notice regarding possible performance issues, allowing schools a chance to identify and work with a particular group of students before being identified. It would expand the existing ``safe-harbor'' provisions to allow more schools to qualify for this important protection. The changes made in our bill are in keeping with what assessment experts and teachers know--that significant gains in academic achievement tend to occur gradually and over time.

Fourth, our legislation would allow the members of a special education student's IEP team to determine the best assessment for that individual student, and would permit the student's performance on that assessment to count for all NCLB purposes.

One reason this change is so important for Maine is that we have small student populations and Maine has chosen a very small subgroup size--only 20 students. I was very concerned to hear reports that in some schools, special education students fear that they are being blamed for their school not making adequate yearly progress. While the statute explicitly prohibits the disaggregation of student data if it would jeopardize student privacy, I am concerned to hear that this is not working out in practice.

This legislative change is also based on principles of fairness and common sense. Many times, it simply does not make sense to require a special needs student to take a grade-level assessment that everyone knows he or she is not ready to take. Many special education students are referred for special education services precisely because they cannot meet grade-level expectations. Allowing the IEP team to determine the best test for each special student will bring an important improvement to the Act.

Fifth, the legislation addresses my concern about the statute's current requirement that all schools reach 100 percent proficiency by 2013-2014. Our bill would require the Secretary of Education to review progress by the States toward meeting this goal every 3 years, and would allow her to modify the timeline as necessary.

Our legislation is a comprehensive effort to provide greater flexibility and commonsense modifications to address the key NCLB challenges facing Maine, and other States. I look forward to working with my colleagues on these issues during the upcoming NCLB reauthorization process.

Mr. President, I rise today to introduce legislation to address the growing concern among States regarding the Real ID Act of 2005, which requires States to meet minimum security standards before citizens can use drivers' licenses for Federal purposes. As the deadline for compliance with Real ID rapidly approaches, States are beginning to send a very clear message that they are deeply concerned that they will not be able to meet these standards. The bill I introduce today recognizes those concerns by giving everyone more time to devise a way to make drivers' licenses more secure without unduly burdening State governments and without threatening privacy and civil liberties.

To begin, some background may be useful. The 9/11 Commission, finding that all but one of the 9/11 hijackers had acquired some form of U.S. identification, recommended that the Federal Government should set standards for the issuance of drivers' licenses. Taking up that recommendation I worked with a bipartisan group of Senators, especially Senator Lieberman, to craft a provision in the 2004 Intelligence Reform and Terrorism Prevention Act that would accomplish this goal. This provision called for the creation of a committee composed of experts from the Federal Government, from State governments, and from other interested parties such as privacy and civil liberties advocates and information technology groups. This committee was charged with developing a means of providing secure identification that protected privacy and civil liberties and respected the role of States in issuing these documents.

The committee diligently began meeting, but before it could complete its work, the House of Representatives attached the Real ID Act of 2005 to an emergency war supplemental bill, thus halting this productive effort. Unlike our intelligence reform bill, the Real ID Act of 2005 did not include States and other interested parties in the rulemaking process and instead instructed the Department of Homeland Security to simply write its own regulations. Nearly 2 years later, we still have not seen these regulations in spite of a looming May 2008 deadline for States to be in compliance with the Real ID Act.

As States begin work this year on their 2008 budgets, they still have no idea what the regulations will require of them. They do know, from a study released in 2006 by the National Governors Association, that the cost to States to implement Real ID could total more than $11 billion over the first 5 years. As a result, many States--my home State of Maine included--have passed resolutions that have sent the message to Washington that they cannot and will not implement Real ID by the May 2008 deadline.

My bill has two primary objectives: 1. It gives us the time and flexibility we need to come up with an effective system to provide secure drivers' licenses; and 2. it gets the experts from the States and from the technology industry and from the privacy and civil liberties advocates back at the table and gives them a chance to make these regulations work.

There are three main provisions in this bill: First, the bill provides that States will not have to be Real ID compliant until 2 years after the final regulations are promulgated. This means that no matter how long it takes the Department of Homeland Security to finish these regulations, States will have a full 2 years to implement them. Most likely that will mean an extension from 2008 to 2010.

Second, the bill gives the Secretary of Homeland Security more flexibility to waive certain requirements of Real ID if an aspect of the program proves technically difficult to implement. Under the current law, the Secretary of Homeland Security has the discretion to waive the requirements for Real ID on a State-by-State basis if the State cannot comply for justifiable reasons. Because it is possible that some of the technological advances necessary for Real ID may not be in place when compliance is required, the bill will provide the Secretary specific authority to waive compliance with specific requirements if these technological systems are not up and running-- relieving the States from the burden of seeking exemptions from Real ID for technological reasons not within their control.

Third, it reconstitutes the committee that we created in 2004 and that was making good progress in its discussions. The committee would be required to look at the regulations published by the Department of Homeland Security and to make suggestions for modifications to meet the concerns of States, privacy advocates, and the other interested parties. The committee would report these suggestions to the Department of Homeland Security and to Congress. The Department of Homeland Security would either have to make these modifications or explain why it chose not to do so. In addition, the committee could recommend to Congress statutory changes that would mitigate concerns that could not be addressed by modifications to the regulations.

This bill gives us the time and the information that Congress and the Department of Homeland Security need to better implement the recommendations of the 9/11 Commission in order to make our drivers' licenses secure so that they cannot be used again as a part of a plot to attack our country. This bill does this in a way that does not rewind the clock three years but instead keeps us moving forward to a more secure America.

I look forward to working with my colleagues on both sides of the aisle to address Real ID and to put us back on track in protecting our privacy, protecting our liberty, and protecting our country.

Mr. President, more than 40 years ago, Congress recognized the importance of a college education in opening the door to the American dream. We agreed then that no qualified student should be denied the opportunity to go to college because of the cost. Guided by that principle, we enacted the Higher Education Act of 1965.

Times have changed since then. College education has become even more critical to success in the global economy. Yet, Congress has shamefully lost sight of this fundamental principle, especially in recent years.

Today, 400,000 qualified students a year don't attend a four-year college because they can't afford it. The cost of college has more than tripled over the last twenty years, and vast numbers of families can't keep up. Twenty years ago, the maximum Pell Grant--the lifeline to college for low-income and first-generation students--covered more than half the cost of attendance at a typical four-year public college. Today, it only covers 32 percent.

Yet each year, the federal government wastes billions of taxpayer dollars on subsidies to private lenders to do a job that could be done much more efficiently without these middlemen.

At a time when students and families are pinching pennies more than ever to pay for college, we can't let this situation continue. We should use scarce tax dollars to help students, not banks.

The system we created 40 years ago involved federally-guaranteed student loans made by private lenders, and it's now known as the Federal Family Education Loan Program, or FFEL. At that time, Congress wasn't sure lenders would be willing to loan money to students with no credit history, so we created a system with guarantees against default. Four decades later, student default rates are near an all-time low and private lenders hold over $100 billion in federal student loan volume. Federal guarantees and subsidies have made student loans the second most profitable business for banks, after credit cards. The stock price of the biggest lender, Sallie Mae, has skyrocketed from $3 to more than $40 in the last decade.

In 1994, Congress finally recognized that we could give students a better deal and save billions of dollars by cutting out the middleman. We created the Direct Loan program, in which loans are issued directly to students, from the United States Treasury. The loans are serviced and collected under contracts with private companies, but there is no middleman making the loans.

The Direct Loan program is much less expensive for taxpayers, because it provides loan capital at a lower rate than banks, and avoids billions of dollars in unnecessary subsidies to lenders.

If we had gone to a system of 100 percent Direct Loans in 1994, the government would have saved over $30 billion since the program was created. Unfortunately, because of the lobbying of the private lenders, the FFEL program continues, and the Direct Loan program has never been allowed to compete on a level playing field.

As a result, we continue to waste taxpayer money by paying an unnecessary middleman, we shield lenders from risk, and we continue to guarantee them a very profitable return.

It's time to encourage serious competition in the college loan marketplace, and let students reap the benefits.

Today, Senator Gordon Smith (R-OR), Congressmen George Miller (D-CA) and Tom Petri (R-WI) and I are proposing a bipartisan plan to do that. Our bill will increase student financial aid by squeezing billions of dollars in corporate welfare out of the student loan program.

Our bill, The Student Aid Reward Act, will provide colleges and universities with grant aid to increase scholarships for their students. It is completely paid for by increased efficiency in delivering student loans. The bill encourages colleges to use the direct loans, which are cheaper for both the government and taxpayers, and allows them to keep half the savings to increase need-based aid. The Congressional Budget Office estimates that our plan will generate $13 billion in savings over the next 10 years from schools switching to the more efficient program. The bill would provide at least $10 billion for additional college scholarship aid at no additional cost to taxpayers.

According to President Bush's 2008 education budget, student loans made through the more expensive FFEL program in 2007 cost $3 more for every $100 in loans than the same loans made directly from the Treasury. Yet, colleges and students have no incentive under current law to use the more efficient program.

Our Student Aid Reward Act encourages colleges to choose the less expensive of the government's student loan programs.

It requires the Secretary of Education to determine every year which loan program is more efficient. Schools are rewarded with additional scholarship funds for using the more efficient of the two programs. Competition will encourage both programs to improve the efficiency of their operations. Schools, students, and taxpayers will all benefit.

Estimates based on the most recent Bush Administration budget indicate that under our plan, each college will receive an incentive payment equal to one and a half percent of the total amount borrowed by students at the college.

In Massachusetts: students at Boston College will receive almost $1.4 million in additional financial aid. Students at UMASS Amherst will receive $1.3 million more. Students at Springfield College will receive over $700,000 more.

Students at Emerson College would receive nearly half a million dollars more.

For students nationwide, college will be more affordable for millions of young men and women at no additional taxpayer cost.

Title IV of the Higher Education Act today is called ``Student Assistance''--not ``Lender Assistance.'' The federal student aid system was created to help students and families afford college. But in recent years, it has been corrupted into a system that lines the pockets of the banks. It's time to throw the private money lenders out of the temple of higher education. Scarce Federal education dollars should go to deserving students, not greedy private lenders.

Mr. President, I ask unanimous consent that the text of the Student Aid Reward Act of 2007 be printed in the Record.

Mr. President, it's a privilege to join my Senate and House colleagues in introducing the ``Protecting Children's Health in Schools Act of 2006.'' This bill will ensure that the Nation's 7 million school children with disabilities will have continued access to health care in school.

In 1975, the Nation made a commitment to guarantee children with disabilities equal access to education. For these children to learn and thrive in schools, the integration of education with health care is of paramount importance. Coordination with Medicaid makes an immense difference to schools in meeting the needs of these children.

This year, however, the Bush Administration has declared its intent to end Medicaid reimbursements to schools for the support services they need in order to provide medical and health-related services to disabled children. The Administration is saying ``NO'' to any further financial help to Medicaid-covered disabled children who need specialized transportation to obtain their health services at school. It is saying ``NO'' to any legitimate reimbursement to the school for costs incurred for administrative duties related to Medicaid services.

It's bad enough that Congress and the Administration have not kept the commitment to ``glide-path'' funding of IDEA needs in 2004. Now the Administration proposes to deny funding to schools under the Federal program that supports the health needs of disabled children. It makes no sense to make it so difficult for disabled children to achieve in school--both under IDEA and the No Child Left Behind.

At stake is an estimated $3.6 billion in Medicaid funds over the next five years. Such funding is essential to help identify disabled children and connect them to services that can meet their special health and learning needs during the school day.

This decision by the Administration follows years of resisting Medicaid reimbursements to schools that provide these services, without clear guidance on how schools should appropriately seek reimbursement.

The ``Protecting Children's Health in Schools Act'' recognizes the importance of schools as a site of delivery of health care. It ensures that children with disabilities can continue to obtain health services during the school day. The bill also provides for clear and consistent guidelines to be established, so that schools can be held accountable and seek appropriate reimbursement.

The legislation has the support of over 60 groups, including parents, teachers, principals, school boards, and health care providers--people who work with children with disabilities every day and know what is needed to facilitate their growth, development, and long-term success.

I urge all of our colleagues to join us in supporting these children across the Nation, by providing the realistic support their schools need in order to meet these basic health care requirements of their students.