# Thirty-Five Years of Water Policy: The 1973 National Water Commission and Present Challenges > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR40573 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** May 11, 2009 - **Citation:** R40573 ## Text Thirty-Five Years of Water Policy: The 1973 National Water Commission and Present Challenges (name redacted), Coordinator Specialist in Natural Resources Policy (name redacted), Coordinator Specialist in Natural Resources Policy May 11, 2009 Congressional Research Service 7-.... www.crs.gov R40573 CRS Report for Congress Prepared for Members and Committees of Congress The 1973 National Water Commission and Present Challenges Summary Concern about the availability and use of water to support the nation’s people, economy, and environment has bolstered interest in establishing a national water commission. The commission structure proposed in recent legislation (e.g., H.R. 135) is similar to that of the 1968-1973 National Water Commission (NWC or Commission). As proposed in H.R. 135, the commission would assess future water demands, study current management programs, and develop recommendations for a comprehensive water strategy. Questions about a commission as an effective model and which topics a commission might consider have raised interest in assessing what the NWC recommended in its 1973 report, Water Policies for the Future, and how the issues that it identified have evolved. The NWC recommended addressing the interconnection between water development and the natural environment, implementing a “users pay” or “beneficiary pays” approach, accomplishing water quality improvements, and adapting governance and organizations to meet water challenges. Since 1973, progress has been made in some of these areas; however, few actions can be traced directly to the NWC’s recommendations. Nonetheless, the influence of the NWC on the evolution of water policy cannot be dismissed. Many of the problems that the Commission identified remain today, and some actions since 1973 have moved water policy toward alignment with NWC recommendations; others have moved it in the opposite direction of NWC recommendations. Shifts in institutional arrangements in general have reduced coordination of federal water agency activities and in many ways have moved away from NWC-recommended multi-objective or river basin planning. State-federal tensions over proper and respective roles continue to cloud resolution of difficult water resource issues and complicate coordination efforts. While many support better coordination of federal water activities and a clearer national “vision” for water management, Congress has not enacted overarching water policy legislation since the 1965 Water Resources Planning Act. Instead, water policy has largely evolved through executive and judicial actions, in many cases in response to piecemeal legislation. Congress continually modifies federal water projects through amendments to existing projects and programs through Water Resources Development Acts (WRDAs), Reclamation acts, water quality legislation, and appropriations decisions. Incremental and ad hoc evolution of water policy, however, is not surprising. Water management is complicated by past decisions and investments affecting a wide range of stakeholders pursuing different goals. Specifically, federal and state laws and regulations, local ordinances, tribal treaties, contractual obligations, and economies dependent on existing water use patterns and infrastructure all affect water management. Attempts to untangle such complexities involve many constituencies with differing interests, and success is difficult to achieve. Expectations for a commission to achieve change in a complex system resistant to transformation may be unreasonable; instead, the influence of a commission may lie in how its recommendations combine with other drivers to support policy evolution. This CRS report presents the NWC’s recommendations and analyzes how issues targeted by the recommendations have evolved during the intervening years. The report focuses on key federallevel recommendations, thereby targeting what has been accomplished since 1973, what issues remain unresolved, and what additional concerns have developed. Congressional Research Service The 1973 National Water Commission and Present Challenges Contents U.S. Water Policy and the 1968-1973 National Water Commission: An Introduction....................1 Water Management Roles in a Federalist System...................................................................1 Water Policy Challenges in a Federalist System.....................................................................2 Genesis of the National Water Commission ...........................................................................4 Response to the National Water Commission.........................................................................5 Summary of the Commission’s 1973 Report and Its Recommendations .......................................6 General Themes of Recommendations...................................................................................6 Governance and Institutional Issues.......................................................................................7 Water and the Natural Environment.......................................................................................9 “Users Pay” or “Beneficiary Pays” Approach ........................................................................9 Improvements to Water Quality........................................................................................... 10 Water Rights ....................................................................................................................... 10 Analysis of the 1973 NWC Recommendations .......................................................................... 11 Governance and Institutional Issues........................................................................................... 11 Water Resources Project Planning and Evaluation ............................................................... 11 Issue ............................................................................................................................. 11 NWC Recommendations............................................................................................... 12 Current Status and Implementation................................................................................ 13 Accounting for the Environment in Project Development .................................................... 18 Issue ............................................................................................................................. 18 NWC Recommendations............................................................................................... 18 Current Status and Implementation................................................................................ 18 Public Participation in Water Resources Planning................................................................ 20 Issue ............................................................................................................................. 20 NWC Recommendations............................................................................................... 20 Current Status and Implementation................................................................................ 21 Federal Water Resources Coordination ................................................................................ 22 Issue ............................................................................................................................. 22 NWC Recommendations............................................................................................... 22 Current Status and Implementation................................................................................ 23 Water Resources Authorizations, Budget, and Appropriations.............................................. 26 Issue ............................................................................................................................. 26 NWC Recommendations............................................................................................... 26 Current Status and Implementation................................................................................ 26 Water and the Natural Environment........................................................................................... 30 Reservoir Development....................................................................................................... 30 Issue ............................................................................................................................. 30 NWC Recommendations............................................................................................... 31 Current Status and Implementation................................................................................ 31 Flood Policy ....................................................................................................................... 34 Issue ............................................................................................................................. 35 NWC Recommendations............................................................................................... 35 Current Status and Implementation................................................................................ 36 Estuaries and the Coastal Zone............................................................................................ 38 Issue ............................................................................................................................. 39 NWC Recommendations............................................................................................... 39 Congressional Research Service The 1973 National Water Commission and Present Challenges Current Status and Implementation................................................................................ 39 Channelization ................................................................................................................... 41 Issue ............................................................................................................................. 41 NWC Recommendations............................................................................................... 41 Current Status and Implementation................................................................................ 42 Fish and Wildlife Protection ................................................................................................ 42 Issue ............................................................................................................................. 42 NWC Recommendations............................................................................................... 42 Current Status and Implementation................................................................................ 43 “Users Pay” or “Beneficiary Pays” Approach ............................................................................ 44 General Water Resource User Fee and Cost-Share Policies .................................................. 44 Issue ............................................................................................................................. 44 NWC Recommendations............................................................................................... 45 Current Status and Implementation................................................................................ 46 Inland Waterway User Charges............................................................................................ 47 Issue ............................................................................................................................. 47 NWC Recommendations............................................................................................... 48 Current Status and Implementation................................................................................ 48 Federal Irrigation Policy—Reclamation Reform.................................................................. 50 Issue ............................................................................................................................. 50 NWC Recommendations............................................................................................... 50 Current Status and Implementation................................................................................ 51 Pricing of Municipal and Industrial Water and Wastewater Services .................................... 53 Issue and NWC Recommendations................................................................................ 53 Current Status and Implementation................................................................................ 53 Improvements to Water Quality................................................................................................. 54 Water Pollution Control....................................................................................................... 54 Issue ............................................................................................................................. 54 NWC Recommendations, and Current Status and Implementation ................................. 54 Water Rights ............................................................................................................................. 58 Non-Indian Water Rights..................................................................................................... 58 Issue ............................................................................................................................. 59 NWC Recommendations............................................................................................... 59 Current Status and Implementation................................................................................ 61 Indian Water Rights............................................................................................................. 62 Issue ............................................................................................................................. 62 NWC Recommendations............................................................................................... 63 Current Status and Implementation................................................................................ 63 Other Recommendations ............................................................................................... 65 Conclusion................................................................................................................................ 65 Figures Figure 1. Federal Water Resources and Water Quality Spending ..................................................8 Figure 2. Federal Water Resources Spending as a Percentage of GDP (1956 -2007)................... 28 Figure 3. Federal and State (and Local) Spending on Water Resources, 1956-1990 .................... 29 Congressional Research Service The 1973 National Water Commission and Present Challenges Figure 4. Federal Water Resources Construction and Maintenance Spending ............................. 29 Appendixes Appendix. Fundamentals of the National Environmental Policy Act (NEPA) ............................. 67 Contacts Author Contact Information ...................................................................................................... 68 Acknowledgments .................................................................................................................... 68 Congressional Research Service The 1973 National Water Commission and Present Challenges R ecent Congresses have considered legislation to establish a national water commission modeled after the 1968-1973 National Water Commission (NWC).1 Interest in a commission stems from basic concerns about how water is being used to support the nation’s people, economy, and environment, as well as the appropriate role of the federal government in water resources management. Questions about whether a commission would be effective at addressing the nation’s water resources challenges and what topics it would be charged with have raised interest in assessing the status of recommendations in the NWC’s 1973 final report, Water Policies for the Future.2 In its report, the Commission made more than 200 recommendations for improving federal and state water resources actions. As Congress considers whether to establish a new “Twenty-first Century Water Policy Commission,” questions arise about the scope and effect of the 1973 NWC report. After a brief introduction to U.S. water policy and the NWC, this report presents a general summary of the NWC report, its recommendations, and how these issues have evolved since 1973. The issues are organized into five categories: (1) “Governance and Institutional Issues”; (2) “Water and the Natural Environment”; (3) ““Users Pay” or “Beneficiary Pays” Approach”; (4) “Improvements to Water Quality”; and (5) “Water Rights.” The remainder of this CRS report provides greater detail on issues that fall under each of the five broad categories. The report provides an overview of key issues and recommendations identified by the NWC; it neither covers the entire NWC report nor provides an exhaustive assessment of progress made on Commission recommendations.3 U.S. Water Policy and the 1968-1973 National Water Commission: An Introduction Water Management Roles in a Federalist System The responsibility for development, management, and allocation of the nation’s water resources is spread among federal, state, local, tribal, and private interests. The federal government has been involved in water resources development since the earliest days of the nation. From improvements first to facilitate navigation, and later to reduce flood damages and expand irrigation in the West, the federal government has been called upon to assist with and pay for a multitude of water resource development projects. In recent decades, it also has regulated water quality, protected fish and wildlife, and facilitated water supply augmentation. However, the federal role also has limits. For example, Congress has generally deferred to the states’ primacy in 1 For example, the 110th Congress considered establishing a “Twenty-first Century Water Policy Commission” (H.R. 135 and S. 2728; see also Title VII of H.R. 2701). H.R. 135 has been reintroduced in the 111th Congress. Other legislation may also address water resource or wastewater management issues addressed by the 1973 NWC (e.g., the Secure Water Act (Title IX, Subtitle F, of P.L. 111-11) and water infrastructure legislation), but do not establish a commission similar to the NWC. 2 NWC, Water Policies for the Future: Final Report to the President and to the Congress of the United States (Washington: GPO, 1973), 579 pp., hereafter referred to as the 1973 NWC Report. 3 Due to this focus, little attention is given to the energy/water nexus, water resources research, supply augmentation, or technological and methodological changes in water resources management. Similarly, this CRS report focuses on federal or national policy and does not, except in limited circumstances, discuss recommendations aimed at state and local governments. This focus allows for greater attention to what has been accomplished, what problems remain unresolved, and what additional concerns have developed at the federal level. Congressional Research Service 1 The 1973 National Water Commission and Present Challenges intrastate water allocation. 4 While local municipalities have largely been responsible for developing and distributing water supplies, the federal government in limited cases also has been authorized to assist communities with water supply development. Land use planning and zoning are almost always within the purview of local governments; however, federal and state actions and interests may run counter to local interests and actions, and vice versa. Water Policy Challenges in a Federalist System Nearly two centuries of water resource project development, environmental and resource management activities, and population shifts have resulted in a complex web of federal and state laws and regulations, local ordinances, tribal treaties, contractual obligations, and economies based on existing water use patterns and infrastructure. These laws have been enacted for diverse purposes, including to allocate, manage, and regulate water use, protect its quality, develop its energy potential, contain its destructive powers, and restore or maintain its biological integrity. Development of these laws has required the action of numerous congressional committees and federal agencies. At the congressional level, this interest has resulted in a set of diverse and sometimes overlapping committee jurisdictions dealing with various aspects of water policy.5 At the executive branch level, this interest and congressional direction has resulted in many agencies and organizations being involved in different but related aspects of federal water policy. This dispersed arrangement complicates management of large river systems (e.g. Missouri, Mississippi, Columbia, and Colorado River basins) and estuaries (e.g. Chesapeake Bay and the San Francisco Bay and Sacramento-San Joaquin Rivers Delta (California Bay-Delta)), especially where anadromous fisheries or threatened or endangered species are involved. For example, fishes navigating some of these large river systems must pass through waters and facilities managed by multiple state and federal agencies and are affected by state, federal, local, and tribal water and land management decisions. Multiple laws and responsibilities also confuse entities looking for assistance with local water projects or other related activities, as well as those seeking to increase recreational opportunities, fish and wildlife protection, and scenic enjoyment. For example, multiple federal programs exist to help communities with rural water supply, wastewater treatment, drinking water quality, and other water-related needs. 4 This is not generally a question of what powers the federal government has and could exercise under the Constitution. Rather, it is a recognition that Congress has often required that the United States defer to or comply with state law in the construction and operation of federal facilities pertaining to allocation, control, or distribution of water (see, for example, §8 of the Reclamation Act of 1902, 32 Stat. 390; 43 U.S.C. 372, 383). Other laws recognizing state primacy and their effects have been the subject of much judicial interpretation. At the same time, as owner of hundreds of thousands of acres of public domain land, the federal government is the “owner of the right to use the waters pertaining to the public domain lands, the right to use of which has not passed into private ownership under authority of the U.S. or an earlier sovereign.” (Letter from Kent Frizzell, Assistant Attorney General, Land and Natural Resources Division, Department of Justice, to the National Water Commission, January 11, 1973.) The federal government also holds reserved water rights—although in many cases unquantified—for reservations of federal lands withdrawn from the public domain (e.g., national forests, national park lands, and wilderness areas). For example, see CRS Report RL30809, The Wild and Scenic Rivers Act and Federal Water Rights, by Cynthia Brougher. 5 See, for example, Water in the West: Challenge for the Next Century, June 1998, Appendix C, Western Water Policy Review Advisory Commission. A minimum of 12 standing committees in the House and Senate have jurisdiction over various components of federal water policy; moreover, this figure excludes the extensive responsibilities of the appropriations committees in both chambers, and the direct and indirect activities of the budget, finance, and oversight committees in both houses. Congressional Research Service 2 The 1973 National Water Commission and Present Challenges At the state level, concern arises any time the federal government is perceived to be infringing on the concept of state primacy in water allocation or controlling water management decisions. This federal-state tension is mirrored in executive-legislative tensions over water resources development and management. Thus, in responding to the former concern, many experts have called for a “national” (i.e., not federal) commission or other mechanism that would involve states and localities in development of a national water policy “vision.”6 Complicating matters further is the dynamic nature of water itself. The basic hydrologic cycle, climate variability—including floods and droughts—and the chemical, physical, and biological nature of surface and ground waters are in a constant state of flux. Criticism of the fractured nature of federal water policy has been a recurrent theme for decades. Historically, countless commissions, councils, and studies have called for new directions in water policy and better planning, evaluation, and coordination of federal actions.7 Options used in the past have included formal and informal coordination entities within the executive branch, nongovernmental commissions tasked with reviewing past policies and laws, and a legislative branch committee made up of key committee leaders. Congress has not enacted any comprehensive—or overarching—change in federal water resources management or national water policy since enactment of the 1965 Water Resources Planning Act (P.L. 89-80; 42 U.S.C. §1962). The Water Resources Planning Act was the direct result of recommendations of the Senate Select Committee on National Water Resources, a congressional committee established to review national water resources policy.8 Although an assessment of the nation’s water resource conditions was last conducted in 1975 and several entities have studied selected aspects of water policy and management, the last systematic and comprehensive review of nationwide federal water policy was the 1973 NWC report. Congress, which represents local interests, often has reacted to proposals to change or reorganize water 6 See, for example, the January 6, 2003, and February 20, 2007, letters from the American Water Resources Association (AWRA) to President George W. Bush et al., calling upon the Administration and Congress to develop a “national water vision” and policy to translate that vision into action. Available at http://awra.org/pdf/fnwpd.pdf; accessed February 12, 2009. 7 These efforts included the Commission on Reorganization of the Executive Branch of the Government (First Hoover Commission, 1949); the President’s Water Resources Policy Commission (Truman Administration, 1950); the Subcommittee to Study Civil Works, House Committee on Public Works (Jones Subcommittee, 1952); the Commission on Organization of the Executive Branch of the Government (Second Hoover Commission, 1955); the Commission on Intergovernmental Relations (1955); the Presidential Advisory Committee on Water Resources Policy (Eisenhower Administration, 1955); the Senate Select Committee on National Water Resources (1961); the Water Resources Council (1965-1983); the National Water Commission (1973); the National Commission on Water Quality (1976); the National Council on Public Works Improvement (1988); and the Western Water Policy Advisory Review Commission (1998). For more information on these efforts, see Reorganization Efforts Affecting the Corps of Engineers Civil Works Mission, by Martin Reuss, former historian for the U.S. Army Corps of Engineers, undated white paper; and U.S. House of Representatives, House Resources Committee, Water & Power Subcommittee, Hearings on the Twenty-first Century National Water Commission, testimony of (name redacted), May 22, 2002. 8 According to Theodore M. Schad, former executive director of the NWC, “[results of the] Kerr Committee [Senate Select Committee on National Water Resources] had a much better reception and was essentially implemented within a few years which is unusual for a study commission report. The key reason was that the study was made by people who were in a position to influence the implementation of the recommendations, which is a lot different from a presidential commission where the appointees are appointed and do their work and then are gone.” Martin Reuss, Office of History and Institute for Water Resources, U.S. Army Corps of Engineers, Water Resources People and Issues, Interview with Theodore M. Schad (Alexandria, VA: U.S. Army Corps of Engineers, Jan. 1999), p. 166. Hereafter Reuss Interview with Schad. Congressional Research Service 3 The 1973 National Water Commission and Present Challenges organizations and institutions as attempts to exert federal control over state and local matters or as attempts to concentrate power and decision-making in the executive branch. Congress arguably has been comprehensive (in the aggregate) in its approach to legislating on many different aspects of water law and policy, but it has not done so in a coordinated or overarching way. Any attempt to untangle the complexities of current water policy involves many constituencies with differing interests, and becomes politically difficult to sustain. Instead of comprehensive or overarching legislation, Congress has enacted numerous incremental changes, agency by agency, statute by statute. Both the executive and judicial branches have responded to these changes and, over time, have developed policy and planning mechanisms largely on an ad hoc basis. When coordination of federal activity has occurred, it has been driven largely by pending crises, such as potential threatened or endangered species listings, droughts, floods, and hurricanes; and by local or regional initiatives. Concern about water supply and its development, however, has bolstered recent interest in legislation to establish a national water commission to assess future water demands, study current management programs, and develop recommendations for a comprehensive strategy. Genesis of the National Water Commission The National Water Commission was created by Congress in 1968 to “provide for a comprehensive review of national water resource problems and programs ... ”9 Congress specifically tasked the Commission to (1) review present and anticipated national water resource problems, including making projections of water “requirements” and alternative ways of meeting such requirements, giving consideration to a host of interests and technological approaches; (2) consider economic and social consequences of water resource development; and (3) advise on such specific water resource matters as might be referred to it by the President and the thenexisting Water Resources Council (WRC).10 (See box, “Brief History of the Water Resources Council.”) Creation of the Commission stemmed largely from congressional debate over development of dams and related irrigation infrastructure in the Lower Colorado River Basin, which in total “would use more water than the river could supply.”11 Members of Congress from the Pacific Northwest, including the chairman of the Senate Interior and Insular Affairs Committee, objected to proposals to transfer water from the Columbia River Basin to supply the needs of states in the Southwest, and a political compromise was reached to create a commission to study water resource problems—a suggestion originally proposed by the Bureau of the Budget. 12 Passage of legislation authorizing the National Water Commission was a direct result. The Commission was made up of seven members appointed by the President. 13 Although none was allowed to be a 9 P.L. 90-515; 82 Stat. 868. Ibid. 11 Theodore M. Schad, The National Water Commission Revisited, Water Resources Bulletin, American Water Resources Association, vol. 14, no.2, April 1978, p. 303. Hereafter National Water Commission Revisited. 12 Reuss Interview with Schad, EP870-1-61, p. 166. 13 The National Water Commission Act passed in September 1968, and the “nucleus” of the Commission staff of 19 was assembled by June 30, 1969. The maximum number of staff employed was 44 in June of 1971. The Commission met monthly from November 1968. President Nixon made changes to the Commission in 1969 and 1970. U.S. Congress, Senate Interior and Insular Affairs Committee, Subcommittee on Water and Power Resources, National Water Commission Report, hearings, June 28 and July 17, 1973, 93rd Cong., 1st sess. (Washington: GPO, 1973), p. 8. 10 Congressional Research Service 4 The 1973 National Water Commission and Present Challenges federal employee, some, including chairman Charles F. Luce, had formerly held senior positions in the federal government. Members were chosen largely for their expertise in a variety of fields related to water resource management. Together, they represented a range of geographic regions and backgrounds in government, industry, and law. 14 Unlike the common practice of today, no special interests were required to be represented. Response to the National Water Commission While progress has been made on addressing many of the problems identified by the Commission, particularly through successive enactment of many Water Resource Development Acts, Reclamation laws, and amendments to water quality legislation, few actions can be directly traced to the Commission’s 1973 recommendations. Aside from immediate oversight hearings by the Senate Interior and Insular Affairs Committee and Senate Public Works Committee, and references in appropriations hearings, the report received no direct follow-up action. In 1978, the Commission’s executive director, Theodore Schad, noted that the report had remained in “limbo,” awaiting mandated action from the WRC and final transmission from the President to the Congress.15 Schad went on to note: It appears these actions [WRC comments and recommendations from the President to Congress] will never be taken. President Nixon became preoccupied with his defense against the Watergate scandals which ultimately led to his resignation. The Ford administration occupied itself with the Section 80 study of water policy. And the Carter administration appears to have accepted Santayana’s comment as its precept [that “those who cannot remember the past are condemned to repeat it”].16 Instead of direct action to implement the Commission’s recommendations, it appears that water policy has continued to evolve—in some areas, much as the Commission predicted—and that this evolution has had many drivers, including but not limited to the Commission findings. For example, a shift from federal grants to loans for local water quality activities is consistent with the Commission’s recommendation for an end to such grants; however, the change was not a direct response to the Commission’s recommendations. Changes in Reclamation law in 1982 and federal cost-share policies in 1986 also reflected Commission recommendations. Again, however, it is doubtful that these changes were a direct response to Commission recommendations; rather, they reflect the culmination of many forces to bring about change. Despite the evolution in water policy, many of the problems identified by the Commission remain today. Often, what makes these problems so intractable is the difficulty in reaching agreement among varied stakeholders as to the proper and respective roles and responsibilities of federal, state, local, tribal, and nongovernmental entities in water management and the distinct dichotomy between agencies, institutions, and constituencies dealing with various aspects of water resource issues on the one hand and water quality issues on the other. Whether a new commission could succeed in promoting direct responses where others have found difficulty is uncertain. Expectations for a commission to directly achieve changes in a complex system resistant to transformation may be unreasonable; instead, the influence of a commission may lie in how its recommendations combine with other drivers to create support for an evolution in policy. 14 According to Theodore M. Schad, “The membership was very well balanced politically, geographically, and environmentally.” Reuss Interview with Schad, pp. 168-169. 15 National Water Commission Revisited, p. 305. 16 Ibid. Congressional Research Service 5 The 1973 National Water Commission and Present Challenges Summary of the Commission’s 1973 Report and Its Recommendations In June 1973, the National Water Commission completed its five-year term and published its final report, Water Policies for the Future. The Commission found that many of the country’s water policies were based on outdated goals and objectives (e.g., settlement of the West, territorial expansion of navigation) and on flawed assumptions about future water needs. The Commission viewed itself as being at the cusp of a shift in water resources management, as the era of large dam construction and other large-scale development investments tapered off; this put the Commission in a unique position to take stock of past policies, assess implementation of thencurrent programs, and make recommendations for future federal, state, and local policies in water resource and water quality management. The report was based on hundreds of documents, special studies contracted by the Commission, eight public hearings, and other meetings conducted since its inception in 1968. Early chapters of the report describe the long history of water resource development and federal activities related to water supply and water quality, as well as water demand projections. General Themes of Recommendations The final Commission report included 17 chapters and supporting appendixes and 232 recommendations. It articulated seven basic themes, which together provided the foundation for the Commission’s conclusions and recommendations:17 • The demand for water in the future is not predetermined and does not follow an inexorable growth pattern, but depends on policy decisions that society controls. • A change in emphasis from water development to preservation and enhancement of water quality and environmental preservation is underway and will continue into the future. • Water development planning must be tied more closely to water quality planning, and all water planning to land use planning. • Meeting future demands necessitates conservation, increased efficiency, and better use of water for agriculture, industry, and domestic and municipal purposes. • Sound economic principles, such as consumers’ willingness to pay, should be used to encourage better use of water resources, but tempered by governmental attention to protection of environmental values. • Updated laws and legal institutions are needed to implement future water policies. 17 National Water Commission Revisited, p. 306. These seven themes also are articulated in Chairman Luce’s testimony before the Senate Interior and Insular Affairs Committee (U.S. Congress, Senate Interior and Insular Affairs Committee, Subcommittee on Water and Power Resources, National Water Commission Report, hearings, June 28 and July 17, 1973, 93rd Cong., 1st sess. (Washington: GPO, 1973).) Congressional Research Service 6 The 1973 National Water Commission and Present Challenges • The level of government (federal, regional, state, or local) nearest the water resource problem and capable of adequately representing all interests should control water resource development, management, and protection. In analyzing the above themes, the text of the report, historical analysis of the Commission’s work, and congressional statements and hearings following the release of the 1973 report, CRS has identified several broad issues areas: a need for reevaluation of federal project planning and evaluation, as well as relationships among federal, state, local and tribal entities with respect to water management and water rights; concern about the effects of water resources management on the natural environment; a movement toward recovering from direct beneficiaries the costs of federal investments in water projects; and concern over degraded water quality. These issues are summarized in the following five sections: (1) “Governance and Institutional Issues”; (2) “Water and the Natural Environment”; (3) ““Users Pay” or “Beneficiary Pays” Approach”; (4) “Improvements to Water Quality”; and (5) “Water Rights.” Governance and Institutional Issues A fundamental and overarching issue area addressed by the NWC was governance and related institutional mechanisms to address water management and planning. In particular, the Commission recommended numerous changes to the institutional structure through which water resources actions were planned, evaluated, and managed. Specific governance and institutional topics covered by the Commission included (1) water resources project planning and evaluation; (2) accounting for the environment in project development; (3) public participation in water resources planning; (4) federal water resources coordination; and (5) water resources authorizations, budgets, and appropriations. Although the basic functioning of the authorization, budgeting, and appropriations processes for water resources has not changed significantly since 1973, a few major changes in organizations and focus have altered the institutional landscape affecting water resources management. These include disbandment of the executive-level Water Resources Council (WRC) and most of the federal river basin commissions, and increased emphasis on state responsibility for water management and development. These changes largely moved water resources planning and evaluation in the opposite direction from Commission recommendations. (See box, “Brief History of the Water Resources Council.”) The Commission also predicted (accurately) that large-scale federal development would play a less significant role than in the past,18 and instead identified joint or coordinated management of multipurpose water facilities, water quality, and local and nonfederal uses as more pressing. The predictions of less large-scale development and the increasing challenges of managing rivers for multiple uses have largely come to fruition. While the federal government has constructed many multipurpose projects, multi-objective federal planning—that is, planning for multiple objectives such as national and regional economic development, environmental quality, and other social and safety concerns—has not been implemented widely or consistently since the mid-1980s. The 1983 federal water resources planning guidance moved away from the 1970s planning guidance of multi-objective planning, and reverted to a focus on national economic development. This 1983 guidance remains in effect,19 although Congress recently enacted legislation requiring its 18 For several decades leading up to the 1960s, the federal government had played a large role in development of the nation’s resources—largely through the construction of large dams and extensive projects, with little integrated planning. 19 “Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies” (Principles and Guidelines), available at http://www.usace.army.mil/cw/hot_topics/ht_2008/pandg_rev.htm. Congressional Research Service 7 The 1973 National Water Commission and Present Challenges update. 20 Notwithstanding the current planning guidance’s focus on economic criteria, the environment has received greater attention in federal water resources project planning and operations, due in large part to implementation of environmental laws, in particular the National Environmental Policy Act (NEPA; P.L. 91-190, 42 U.S.C. §4321 et seq.) and the Endangered Species Act (ESA; P.L. 93-205, as amended; 16 U.S.C. §§ 1531-1543). The Commission found that budgeting procedures neither reflected nor promoted regional or long-term water resources development, and projects were often presented to Congress and considered individually. Considering project authorizations and appropriations as part of comprehensive river basin and regional development plans, as recommended by the Commission, has not been an option since the early 1980s, when most larger-scale federal water resources planning efforts were halted. Budgeting for the two largest federal water resource agencies (the Corps and the Bureau of Reclamation) also has remained largely project-specific, while federal funding for water quality infrastructure is largely done via formula-based funding to state revolving fund programs. In terms of federal appropriations for water programs, a shift from development to preservation indeed occurred; where once water resource development was predominant in water program spending, federal water quality spending significantly increased in the 1970s and has remained well above pre-1970s levels, while water resources development spending has experienced a modest decline (see Figure 1). With regard to water resources program focus, development has slowed and federal water resource agencies now must take into account the environment in planning, constructing, and operating projects. Still, the degree to which development and environmental protection are evaluated and weighted remains central to many current water resources conflicts. Figure 1. Federal Water Resources and Water Quality Spending (1956-2007 in millions of 2006 dollars) 16,000 14,000 12,000 10,000 8,000 6,000 Water Resources Drinking Water and Wastew ater Treatment 4,000 2,000 0 1956 1961 1966 1971 1976 1981 1986 1991 1996 2001 2006 Source: CRS, with data from the Congressional Budget Office, CBO Infrastructure Spending Supplemental Tables, 2008 Update, available at http://www.cbo.gov/doc.cfm?index=9135. 20 §2031, Water Resources Development Act of 2007, P.L. 110-114 (42 U.S.C. §1962-3). Congressional Research Service 8 The 1973 National Water Commission and Present Challenges Water and the Natural Environment The Commission found that by 1973, the best sites for dams and other water resource development projects had been used, that many projects had heavily affected the environment, and that the public had turned its support from development to environmental and water quality preservation. The Commission recommended a similar shift from development (construction of dams, irrigation ditches, channels, etc.) toward preservation and improvement of water quality. Its recommendations ranged across numerous fields, including (1) reservoir development; (2) flood policy; (3) estuaries and the coastal zone; (4) channelization; and (5) fish and wildlife protection. Many of the water and natural environment concerns raised by the NWC have been addressed via implementation of environmental laws at their infancy in 1973—for example NEPA, ESA, and the Clean Water Act (P.L. 92-500; 33 U.S.C. §1251 et seq.). Further, many of the largest current federal water actions are attempting to address environmental or species concerns through ecosystem restoration and stream rehabilitation (e.g., Everglades restoration, San Joaquin River restoration, and San Francisco Bay/San Joaquin River and Sacramento Delta (Bay-Delta) restoration); whether these recent efforts will perform as planned and whether the federalnonfederal collaboration central to many of them will function effectively and efficiently remains in question. As a consequence, whether these changes and efforts adequately address the Commission’s concerns is a matter of disagreement. “Users Pay” or “Beneficiary Pays” Approach The Commission also supported greater application of “users pay” and “beneficiary pays” approaches, which are founded on the concept that those directly benefitting from federal investment ought to pay the for investment. The twin goals of this approach were to improve equity and efficiency. These goals were the focus of several chapters in the final report, and the users pay and beneficiary pays policies were woven throughout the report. The Commission focused on (1) increasing (or establishing) general nonfederal cost shares of projects by federal water resource agencies (e.g., the Corps of Engineers and the Bureau of Reclamation); (2) establishing inland waterway user charges; (3) changing federal irrigation policy and implementing reforms to the Reclamation program (i.e., reducing federal irrigation subsidies and complexities); and (4) addressing appropriate pricing of water and wastewater services. At congressional hearings, the Commission stated that heavy federal investment in water resources development made sense in the early part of the nation’s history and through the first half of the 20th century, but changing federal priorities necessitated changes in water policies. The needed changes included improving cost recovery and eliminating program duplication and crosspurpose policies. Cost recovery remains part of the ongoing discussions of the proper federal role in water policy. For example, ongoing tensions between successive administrations and recent congresses over funding for federally supported water reuse and rural water projects have revolved mostly around what the proper federal role is in financing local municipal and industrial water supply projects. Federal program duplication also generates federal investment concerns; on the other hand, congressional supporters often justify new projects and programs as fulfilling an unmet social purpose. Regarding costly cross-purpose programs, numerous studies since 1973 have questioned the incentives created by federal assistance for flood damage reduction infrastructure (like levees and floodwalls). Specifically, if this infrastructure encourages commercial, residential, and Congressional Research Service 9 The 1973 National Water Commission and Present Challenges industrial development in floodplains, the social and economic costs are generally greater when flooding occurs. Increasing or changing nonfederal cost shares or establishing special fees for beneficiaries of water projects consistently proves politically difficult.21 Nonetheless, some progress has been made in addressing the Commission’s recommendations related to containing costs—most notably through increased cost shares for certain port development, flood projects, and establishment of a barge fuel tax. Some economists, however, argue that these steps have been insufficient to address the full range of inefficient cost share and water pricing policies. Improvements to Water Quality The elements of the final report that addressed water pollution control were some of the most controversial, 22 chiefly because the Commission rejected some key concepts that Congress had recently adopted in the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500; 33 U.S.C. §1251 et seq., commonly referred to as the Clean Water Act (CWA)). The draft final report was released one month after enactment of that major law, and the final report barely eight months after enactment. The Commission rejected the zero discharge goal and the core regulatory approach central to the CWA. The CWA is viewed today as one of the most successful environmental laws in terms of achieving its statutory goals, and the CWA programs have been widely supported by the public. The Commission made observations that remain valid about the extent of water pollution problems, despite water quality improvements that have occurred since then. Issues on which the Commission focused some recommendations, such as planning, federal and state roles, and enforcement through discharge permits, have been and remain basic elements of implementing water quality programs. The need to adequately fund pollution control activities, highlighted in several recommendations, also remains a challenge for policymakers. Water Rights The Commission also focused on the scarcity of water as a resource and adapting to more efficient use and allocation. It suggested that procedural mechanisms and legal regulations, including adjustments to water rights, be implemented to ensure that water was used efficiently and effectively. Congress has enacted legislation protecting social and noneconomic values while respecting the state-based water rights frameworks; many states also have modified their water rights systems to protect social values. The Commission described water supply in the West as limited and near full appropriation, and it framed the Indian water rights issue as a conflict in the West between Indian rights to water and water development, on the one hand, and the potential harm to extensive non-Indian water development and use, on the other. As is the case today, Indian water rights claims were largely unquantified. The Commission found that resultant uncertainties created an urgent need to resolve Indian water rights claims; many perceive this as still being the case. 21 For an introduction to this ongoing struggle, see T. R. Reid, Congressional Odyssey, the Saga of a Senate Bill (New York: W. H. Freeman and Company, 1980). 22 “Water Commission: No More Free Rides for Water Users,” Science, April 13, 1973, p. 167. Congressional Research Service 10 The 1973 National Water Commission and Present Challenges Analysis of the 1973 NWC Recommendations The following sections provide an overview and analysis of the Commission’s recommendations. Each section includes a brief discussion of issues identified by the Commission, a listing of key recommendations, and a discussion of whether certain recommendations have been implemented. In many cases, a discussion of how issues identified may have evolved is also included. Governance and Institutional Issues The Commission found that future water requirements could not be fully assessed without taking into account how water resources are governed and what institutional structures guide their management, use, and allocation. The Commission emphasized that policy choices would greatly influence future water use and water “needs” or “requirements”—that future water “demands” would depend on multiple factors and future polices. A persistent tendency of water resources planning has been the issuance of single valued projections of water use into the future under a continuation of present policies, leading to astronomical estimates of future water requirements.... The amount of water that is actually used in the future will depend in large measure on public policies that are adopted. The National Water Commission is convinced that there are few water “requirements.”... But there are “demands” for water and water-related services that are affected by a whole host of other factors and policy decisions, some in fields far removed from what is generally considered to be water policy.23 With regard to government programs and institutions affecting water policy, the Commission made many recommendations related to (1) water resources project planning and evaluation; (2) accounting for the environment in project development; (3) public participation in water resources planning; (4) federal water resources coordination; and (5) water resources authorization, budget and appropriations. Water Resources Project Planning and Evaluation24 Issue The NWC predicted a less significant role for large-scale federal project development (e.g. construction of locks, dams, levees, and diversion facilities) than in the past. The Commission instead identified joint or coordinated management of multipurpose water facilities, water quality, and local and nonfederal uses as more pressing. It concluded that comparisons of alternative water uses would become increasingly important as demands increased on limited supplies. The Commission believed that estimating the values of various uses and pricing policies would be important to achieve efficient water allocation. It concluded that federal investment in water resources projects was inefficient for achieving regional economic development, and cautioned that careful development and assessment of project proposals were necessary to enhance their effectiveness and offset losses in other regions. 23 24 1973 NWC Report, p. 2. Prepared by (name redacted), Specialist in Natural Resources Policy, Resources, Science, and Industry Division. Congressional Research Service 11 The 1973 National Water Commission and Present Challenges The Commission found water resource project planning insufficient in its integration with landuse planning, water quality and environmental concerns, and the interests of the general public. The Commission criticized large river basin and watershed plans as avoiding needed prioritization, being unrealistically ambitious, and failing to capture the issues significant to metropolitan areas. It noted that important non-quantitative issues and judgments were buried in the analysis of some plans, and that federal planning requirements for states were costly while producing unclear state benefits. The Commission supported broadening traditional objectives of water resources plans, but was uncertain how to properly evaluate multi-objective plans and their alternatives. The Commission determined that society was not only concerned with national economic consequences, but also with water projects’ nonmarket and regional effects. It found that a bias toward construction projects and projects within agency mission areas resulted in inappropriately narrow alternative formulation during the early phases of planning. In particular, the Commission found that there was a bias against alternatives for no action, delayed investments, and nonstructural measures (e.g., pricing, metering, conservation, evacuation, floodproofing). It found that the evaluation of alternatives seldom adequately treated adverse, indirect, social, and non-monetized effects. The Commission commented on the bias caused by the dominance of benefit-cost analyses in evaluation and selection, in particular the often overriding weight given the benefit-cost ratio in identifying the preferred alternative. The Commission also identified municipal water supply and wastewater treatment; recreation use; water quality and pollution control; and power plant siting and licensing as significant planning challenges. The Commission’s planning recommendations focused on these issues as they relate to water resources planning. The discussion below similarly focuses on water resources planning, rather than water quality and other planning issues. NWC Recommendations To improve planning, the Commission recommended: • integrating land-use and water planning at the state, federal, and local levels, and in coordinating institutions such as river basin commissions; • increasing federal funds for state water planning, and access to these funds by local and interstate planning entities; • authorizing federal-state-local planning organizations if there is a federal interest, and giving more intensive and continued attention to water management needs of smaller basins and metropolitan areas; • estimating values for alternative water uses as part of basin plans, as appropriate; • analyzing water resources as hydrologic systems (i.e., accounting for quantity, quality, timing, resource location, and subsequent uses); and • judging fish, wildlife, and aesthetic values indirectly (i.e., not by economic evaluation), and basing decisions on the value of uses preserved exceeding the value of the uses foregone. For evaluating alternatives, the Commission recommended: Congressional Research Service 12 The 1973 National Water Commission and Present Challenges • approving the multi-objective planning approach in the WRC’s (then-proposed) Principles and Standards for water resources planning; • not relying solely on benefit-cost analysis for decision-making; • determining nonfederal sponsors’ willingness to pay for a project, and to consider that a measure of its attractiveness as an investment; and • basing the discount rate for projects on average yield rates for long-term Treasury obligations. Current Status and Implementation Significant shifts have occurred in water resources planning since 1973. In the early 1970s, water resource agency planning Principles and Standards incorporated environmental, regional, and social effects, as well as national economic development factors.25 Consistent with the Commission’s recommendations, the WRC revised the Principles and Standards. New, extensive Principles and Standards were published under the Carter Administration in 1979. Soon thereafter, the Reagan Administration replaced this guidance with the “Principles and Guidelines” just as the WRC disbanded in 1983, which revised the Principles to focus decision-making on economic criteria but left out the analytic provisions. 26 The Principles and Guidelines moved away from the 1970s Principal and Standards’ use of a multi-objective planning and evaluation framework, thus reverting back to a focus on national economic development. As the Commission envisioned, regional development and resource development projects continued their decline after 1973. Much of the post-Commission federal planning has been concentrated at the Corps and at a smaller scale in USDA watershed programs. In the early 1980s, President Reagan also dissolved the majority of the large-scale river basin commissions. As with other areas addressed by the Commission, the advent of new environmental laws (e.g., NEPA and ESA) has also significantly shaped federal water resources planning since 1973. (See “Accounting for the Environment in Project Development” and “Public Participation in Water Resources Planning” for more information.) 25 Prior to development of planning “Principles and Standards” by the WRC in the late 1960s and early 1970s, project planning focused on project costs, benefits, and engineering feasibility. 26 “Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies” (Principles and Guidelines), available at http://www.usace.army.mil/cw/hot_topics/ht_2008/pandg_rev.htm. Congressional Research Service 13 The 1973 National Water Commission and Present Challenges Brief History of the Water Resources Council U.S. water resource agencies largely acted autonomously in proposing project plans until an interagency Water Resources Council was established in 1965 to coordinate federal water programs and policy. The Council was created by the Water Resources Planning Act of 1965 (P.L. 89-80); it challenged more established institutional decision mechanisms of both executive and legislative branches and was subsequently disbanded in 1983. The 1965 act declares that “the policy of the Congress is to encourage the conservation, development, and utilization of water and related land resources of the United States on a comprehensive and coordinated basis by the Federal Government, States, localities, and private enterprise ..." Specific duties given the Council were to: • conduct continuing "assessments" of water supplies; • coordinate basin plans with larger regional and federal programs, including making policy recommendations; • establish "principles and standards" for evaluating projects, i.e., integrating environmental and social objectives with cost-benefit analysis; • review and make recommendations on basin commission plans; and • allot financial grants to states for planning assistance. Council Activities, 1968-1978 With 50 professional staff, the Council issued unprecedented and highly detailed national water assessments in 1968 and in 1975. Dozens of river basin studies and major planning studies were completed, as was issuance of new principles and standards for project evaluation. The Council operated in an environment dominated by a few large water project construction agencies and the legislative committees of jurisdiction. Although the Council operated as a sub-Cabinet (staff-level) committee, it was nominally made up of the Secretaries of Agriculture, Army, Health, Interior, and Transportation and the (then) Federal Power Commission chairman; later the Housing Secretary and Administrator of the Environmental Protection Agency were named as associate members, while "observers" included the Office of Management and Budget, Council on Environmental Quality, Tennessee Valley Authority, and river basin commission chairpersons. In 1978, the Carter Administration initiated an effort to reform federal water policy—initially employing a "hit list" of about 20 large water projects for which de-authorization was sought. The Council was called upon to assist in the effort, and Council staff were used to independently review the water agencies’ project justifications. Eventually, congressional funding provisions maintained many projects and prohibited the Council’s independent reviews. Early 1980s In early 1981, Interior Secretary James Watt, serving as Council chairman, requested reduced Council funding. The action was consistent with the Reagan Administration's outlook that states should play a more active role in water policy activities. All the organizational and staff planning functions of the Council and basin commissions were disbanded, and a revised set of "Principles and Guidelines" were issued in 1983 as one of the last formal actions of the Council. Although the Water Resources Planning Act has not been repealed and thus authorization of the Council remains statutorily, no funding for the Council has been appropriated since FY1983. Prepared by (name redacted) and H. Stephen Hughes Planning and Evaluation Guidance The 1983 Principles and Guidelines remain in effect. How they focus planning, evaluation, and selection of the preferred federal project alternative on national economic benefits (NED) has been widely criticized, particularly as interest and support for aquatic ecosystem restoration and environmental protection has grown. Furthermore, Hurricane Katrina drew national attention to concerns about the incorporation of public safety in planning. In a Water Resources Development Act of 2007 (WRDA 2007, P.L. 110-114) provision, Congress called for the Secretary of the Congressional Research Service 14 The 1973 National Water Commission and Present Challenges Army to update the Principles and Guidelines by the end of 2009. The same provision also stated a national water resources planning policy.27 It is the policy of the United States that all water resources projects should reflect national priorities, encourage economic development, and protect the environment by—(1) seeking to maximize sustainable economic development; (2) seeking to avoid the unwise use of floodplains and flood-prone areas and minimizing adverse impacts and vulnerabilities in any case in which a floodplain or flood-prone area must be used; and (3) protecting and restoring the functions of natural systems and mitigating any unavoidable damage to natural systems. How this provision is implemented (i.e., how the Corps, Reclamation, NRCS, and the TVA will conduct their planning) and the oversight it receives remain to be seen. For instance, it is unknown how a revised planning framework will address tradeoffs across national economic effects, environmental benefits, and public safety, as well how regional economic and social effects might be weighed. Whether the WRDA 2007 provision results in greater consideration of nonstructural measures and broadening of planning to include alternatives outside of an agency’s mission, as recommended by the Commission, also remains unknown. Numerous already enacted provisions supporting nonstructural measures have produced little shift toward their full consideration and selection in water resources planning, thus indicating that authorizing provisions and statements of planning policy, without oversight and funding, may not be sufficient to produce significant change. With some exceptions, water resource and water quality planning and implementation efforts continue to be performed separately. Although the NWC discussed preservation, it did not predict the evolution of ecosystem restoration as a significant water resources planning challenge. The growth of ecosystem restoration has precipitated a deviation from the economic basis of the 1983 Principles and Guidelines; the basic justification for restoration is not economic but environmental. For example, the Corps has developed its own guidance, which often broadly assumes that the environmental benefits exceed their economic costs, thereby negating the need for a benefit-cost analysis to justify undertaking a project based on national economic benefits. In order to evaluate and select a restoration alternative, the analysis is based on cost-effectiveness, which instead identifies which alternative provides a unit of environmental benefit at least cost. Cost-effectiveness, therefore, helps determine the efficient project design given unlimited fiscal resources, but provides little insight into whether, given constrained fiscal resources, the nation should invest in a particular restoration effort compared to other restoration opportunities. Whether implementation of WRDA 2007 provisions may assist in integrating water resources and water quality planning, and in structuring the planning and evaluation of restoration projects, is unknown. Consistent with the recommendation by the Commission, Congress in the Water Resources Development Act of 1974 (P.L. 93-251) made the discount rate for federal water projects the oneyear average yield of long-term government securities. This discount rate remains controversial. Some economists argue that the rate should reflect displacement of private investment, which is usually higher than long-term government securities. Recently, the Treasury-based rate has been lower than the rate of return on private investments or the Office of Management and Budget’s 27 §2031, Water Resources Development Act of 2007, P.L. 110-114 (42 U.S.C. §1962-3). Congressional Research Service 15 The 1973 National Water Commission and Present Challenges base rate of 7%.28 The benefits of moving to a different rate, which may affect the evaluation and selection of a project, and federal participation in it, continue to be debated. Federal Water Resource Planning Activities Following the 1965 Water Resources Planning Act (P.L. 89-80; 42 U.S.C. §1962), the federal government supported federal, state, and river basin planning in numerous ways. By the late 1970s, federal watershed and river basin commission planning was both positively received and criticized for its costs and usefulness. Federal funding for state planning efforts began to decline. The early-1980s abandonment of the WRC and river basin commissions, as well as detailed planning standards, shifted federal project planning away from coordinated watershed-based decision making. Since then, most federal agency planning has been project-specific with some exceptions. The exceptions in the last decade include large-scale ecosystem restoration efforts at Reclamation and the Corps, and long-standing planning assistance programs like the Corps’ Planning Assistance to States. Other exceptions include the NRCS small watershed program, EPA watershed activities (see “Federal Water Quality Planning Activities,” below), and congressional funding of five Corps pilot watershed studies; these pilot studies are two-year, 100% federally funded, multi-jurisdictional regional and watershed efforts. WRDA 1986 authorized the Corps to assess water resource needs of river basins and watersheds; this authority, however, has gone largely unused and unfunded. In the late 1990s, the Western Water Policy Review Advisory Commission (WWPRAC) reviewed existing planning for and coordination of federal water resource projects by recommending a pilot program using a tiered or “nested” approach to water resources governance based on watersheds and river basins.29 The WWPRAC recognized the many watershed initiatives, watershed councils, and other partnerships that had developed over the years and believed they held “much promise.”30 Along with a new governance structure based on hydrologic systems and linking basin and watershed activities, the WWPRAC recommended new coordination of basin-level federal activities, in part via appointment of a key official at the presidential or secretarial level to coordinate agency activities. 31 These suggestions were not well received by committee leaders in Congress. In a letter expressing “strong opposition to [the final WWPRAC] report,” the chairmen of the Senate Appropriations Committee and House Resources Committee postulated that such recommendations would result in more bureaucracy and less state and local control.32 Thus, the WWPRAC recommendations were not implemented; however, state and local action watershed activities and some partnerships with the federal government continue to occur. In recent years, there has been a trend toward congressional support for technical assistance, in particular using federal agencies’ engineering and design expertise to support water supply and 28 The 2008 Treasury-based rate for long-term yields was 4.875%; however, recent volatility in the U.S. financial system may result in very different projections of long-term yields. 29 Western Water Policy Review Advisory Commission, Water in the West: Challenge for the Next Century, June, 1998, p. xvi. 30 Ibid. 31 Ibid., p. xxviii. 32 April 3, 1998 letter from Representative Don Young and Senator Ted Stevens to Denise Fort, Chair of the Western Water Policy Review Advisory Commission, reprinted in Appendix B of the Commission’s report, Water in the West: Challenge for the Next Century, June 1998. Congressional Research Service 16 The 1973 National Water Commission and Present Challenges treatment. For example, since 1992, Congress has authorized and funded the Corps to provide technical assistance for municipal water and wastewater projects in selected locations. Also in 1992, Congress created a Reclamation program to investigate opportunities for water reuse in the West, including the design and construction of demonstration and permanent facilities. These planning and related construction activities have raised questions regarding the use of federal staff and funds for design of projects that are managed separately from the agencies’ typical planning framework and that support municipal and industrial water supply, which typically has been treated as a local responsibility. (See “General Water Resource User Fee and Cost-Share Policies” for a discussion of questions raised by these authorizations related to uniformity across federal agencies and project purposes.) Some states and basins have found themselves in conflict particularly during droughts, as demands on water resources have increased. Some states, such as California, Texas, and Florida, have undertaken their own planning efforts. In recent years, these efforts have often been geared toward water supply augmentation, restoration of significant ecosystems, and drought management. Federal agency participation in state and local planning efforts, much less creating federal-state-local planning organizations as recommended by the Commission, has been constrained by the focus of the budget and appropriations process on specific projects, rather than broader planning efforts. Provisions in WRDA 2007 (e.g., Corps assistance for update of the Oklahoma state water plan) and other legislation (e.g., DOI water supply needs assessment for Alaska in P.L. 110-229, the Consolidated Natural Resources Act of 2008) illustrate ongoing examples of occasional congressional support for federal assistance with state and local planning, albeit on an ad hoc basis. In summary, in 1973, regional and watershed planning was embedded within the executive branch water resource mission agencies, the WRC, and the federal river basin commissions and supported by a program of federal grants to develop state planning capacity. Now federal planning is primarily project-specific, with the most notable exception being large-scale ecosystem restoration efforts. Federal support for watershed and state planning is now largely ad hoc and congressionally directed. Federal Water Quality Planning Activities While Principles and Guidelines apply to the four federal water resource agencies (Corps, Reclamation, NRCS, and TVA), other laws address water quality and pollution control planning. (See, for example, the planning subsection under “Improvements to Water Quality.”) However, because the federal government does not construct water quality projects receiving funding from EPA, there is no comparable planning and evaluation guidance to the water resource project Principles and Guidelines. Congressional Research Service 17 The 1973 National Water Commission and Present Challenges Accounting for the Environment in Project Development33 Issue The Commission, in Chapter 6 of its final report, discusses issues associated with the need to balance water resources project development and environmental values. 34 The Commission found that project development needs tended to dominate over concerns about the potential environmental impacts of a project (see also “Water and the Natural Environment,” below). A mechanism identified to help achieve a balance was the integration of the environmental review requirements of the National Environmental Policy Act (NEPA; 42 U.S.C. §§ 4321-4347) with the project development process. Although the Commission recognized NEPA as a potential tool to include environmental concerns in the decision-making process, it also identified how certain elements of the NEPA process could contribute delays, uncertainty, and challenges to project development. For example, it identified challenges associated with appropriately determining all “reasonable” project alternatives. To understand the Commission’s recommendations on this issue it is important to understand some of NEPA’s requirements, particularly as they were understood and being implemented in 1973. A brief explanation of these requirements is found in the Appendix of this report. (See also, CRS Report RL33152, The National Environmental Policy Act (NEPA): Background and Implementation, by (name redacted) and CRS Report RL33267, The National Environmental Policy Act: Streamlining NEPA, by (name redacted).) NWC Recommendations The Commission recommendations reflect the NEPA compliance difficulties that many agencies were facing in the early 1970s. The NWC identified processes intended to clarify NEPA requirements and expedite the environmental review process for water projects. Generally, the recommendations specify:35 • how elements of the NEPA process should be integrated into the licensing process; • certain measures regarding public and congressional participation; and • the need for hearings on challenges associated with determining the appropriate range of reasonable projects. Current Status and Implementation Many of these recommendations were subsequently addressed, particularly through NEPA-related case law and promulgation of regulations to implement NEPA’s EIS requirements in 1978. Specifically, since the Commission report was issued, a host of court decisions, the promulgation 33 Prepared by (name redacted), Analyst in Environmental Policy, Resources, Science, and Industry Division. 34 In this context, environmental values appears to mean an interest or concern about the environmental impacts of a project. 35 Commission recommendations addressed in this section include those associated with water resources projects likely to require a permit or some other authorization from the federal government and hence to be subject to NEPA. The Commission also included recommendations aimed at streamlining federal licensing procedures, particularly the licensing of hydroelectric facilities, including resolution of respective federal and state roles. Response to licensing recommendations is beyond the scope of this section and therefore not included in this discussion. Congressional Research Service 18 The 1973 National Water Commission and Present Challenges of Council of Environmental Quality’s (CEQ’s) NEPA regulations, and the implementation of NEPA regulations by individual agencies have contributed to the development of a now-mature NEPA process for water resources projects. Elements of that process address many of the recommendations made by the Commission. For example, CEQ’s regulations were intended to foster better decision-making and reduce the paperwork and delays associated with NEPA compliance. 36 Also, among other requirements, NEPA regulations: • defined and specified the roles of “lead agencies” (those responsible for preparing the NEPA documentation) and “cooperating agencies” (agencies that participate in or contribute to the preparation of the NEPA documentation); • allowed lead agencies to set time limits on milestones in the NEPA process and page limits on documentation; • specified environmental review procedures and documents applicable to projects that had uncertain or insignificant environmental impacts; • specified how an agency was to involve the public in the NEPA process (e.g., specified at what points public input should be solicited and accepted); and • specified criteria that must be addressed when providing an analysis of project alternatives. Also, the CEQ regulations specified the required elements of an EIS, which include: • a brief statement, developed by the lead agency, specifying the underlying purpose of a project and the need to which the agency is responding; • a discussion of the range of alternatives, including the proposed action, that will meet the project’s purpose and need—a discussion that should explore and objectively evaluate all “reasonable” alternatives; • a succinct description of the environment of the area(s) to be affected by the alternatives under consideration; and • an analysis of impacts of each alternative on the affected environment, including a discussion of the probable beneficial and adverse social, economic, and environmental effects of each alternative. The degree to which the CEQ regulations have expedited the NEPA process is still debated. Since 1973, NEPA’s procedural requirements may have become clearer, but the overall process is more complicated for reasons that have little to do with NEPA itself. For example, water resources projects are likely to be large, complex projects that may involve compliance with a host of other environmental requirements (many promulgated after June 1973). To integrate the compliance process and avoid duplication of effort, NEPA regulations specify that, to the fullest extent possible, agencies must prepare the EIS concurrently with any environmental requirements.37 The EIS must list any federal permits, licenses, and other government certification required to implement the proposed project. In this capacity NEPA functions as an “umbrella” statute, 36 Council on Environmental Quality, Ninth Annual Report of the Council on Environmental Quality, December 1978, pp. 396-399; and at 40 C.F.R. §§ 1500.4 and 1500.5. 37 40 C.F.R. § 1502.25. Congressional Research Service 19 The 1973 National Water Commission and Present Challenges meaning that any study, review, or consultation required by any other environmental law should be conducted within the framework of the NEPA process. NEPA’s overarching nature often leads to confusion as to how it relates to other laws. As an umbrella statute, NEPA forms the framework to coordinate or demonstrate compliance with other environmental requirements. NEPA itself does not require compliance with them. If, theoretically, the requirement to comply with NEPA were removed, compliance with each applicable law would remain. For example, a required element of the EIS is to determine whether biological consultation is required under ESA. The requirement to comply with ESA would simply be identified by the NEPA process; the obligation to comply with the law remains under the ESA. Some environmental review issues identified by the Commission remain at issue. For example, for individual projects, agencies may still have challenges in sufficiently identifying all “reasonable” project alternatives. Although there are more specific criteria to make that determination, it is something that must be determined on a project-by-project basis. It may form the basis of litigation if project stakeholders feel that an alternative they would prefer is not considered but, to them, is reasonable. Also, the threat of litigation is sometimes an issue in EIS preparation. Agencies may prepare NEPA documentation that is overly inclusive and lengthy in an attempt to avoid litigation challenging the sufficiency of the analyses or review of alternatives. Public Participation in Water Resources Planning38 Issue The Commission, in a section of Chapter 10, addressed concerns regarding public participation in water resources planning. It discussed deficiencies in public participation and acknowledged certain limits and requirements to avoid delays in project implementation. NWC Recommendations The NWC sought to clarify public participation requirements as well as set parameters to avoid excessive delay. The Commission made a number of recommendations: 38 • Federal water resources agencies should adopt procedures and issue appropriate directives to field entities to provide opportunities for broad public participation in water planning activities “from the inception of the planning process on.” • As a prerequisite to project authorization, Congress should require agencies to report on public participation with respect to particular projects, showing compliance with agency public participation procedures, describing the questions considered and the viewpoints expressed, and providing supporting information for the decisions reached on controversial points. • Water resources planning agencies should structure their planning procedures to promptly resolve and conclude issues by timing the public participation and defining issues to be addressed. Prepared by (name redacted), Analyst in Environmental Policy, Resources, Science, and Industry Division. Congressional Research Service 20 The 1973 National Water Commission and Present Challenges • Water resources planning agencies should help compensate for the lack of financial, technical, and manpower resources of participants by providing timely, well-publicized information, scheduling at least one public hearing near the proposed project, and making basic data readily available. • Federal and state governments should require advance public disclosure on the pre-license planning of major nonfederal projects expected to have an impact on water resources. • Licensing agencies should seek to develop the interests of all participants affected by agencies’ decisions. Current Status and Implementation Many of the public participation concerns raised by the Commission have been addressed through the current NEPA process. For example, as the law has been interpreted, one of NEPA’s primary goals is to allow the public a meaningful opportunity to learn about and comment on the proposed federal actions before decisions are made and actions taken (e.g., during the project planning and evaluation process). To meet this goal, CEQ’s regulations require agencies to encourage and facilitate public involvement in decisions that significantly affect the quality of the human environment (i.e., projects that require an EIS).39 Specifically, agencies are required to provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents.40 Documentation of public participation must be included in the final EIS. Although the Corps and other agencies had some processes requiring public review prior to NEPA, NEPA greatly expanded the public review and input process. CEQ has guidance educating the public on its rights with regard to participation.41 Generally, public participation opportunities are available during the initial project scoping process and after a draft EIS has been produced (not throughout the entire project planning and development process). If stakeholders have concerns about a proposed plan’s impacts, their comments may be directed at virtually any element of that plan, the NEPA process, or related documentation. If stakeholders believe their concerns have been inadequately addressed, they may sue. To avoid conflict after a project has reached an advanced stage of planning, CEQ recommends that continuous contact with non-agency stakeholders be maintained from the earliest planning stages up to the decision to select a particular alternative. CEQ regulations specify public involvement requirements only for federal actions requiring an EIS. Agencies may devise their own public involvement policies for environmental assessments (which are an allowable alternative to an EIS under certain circumstances) or in making a categorical exclusion determination. If a project does not require an EIS but still has garnered public attention, agencies generally involve the public in ways similar to its EIS methods. 39 40 40 C.F.R. § 1500.2(d). 40 C.F.R. § 1506.6. 41 In December 2007, CEQ released a citizen guide to help the public navigate the NEPA process, A Citizen’s Guide to the NEPA: Having Your Voice Heard, available at http://ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf. Congressional Research Service 21 The 1973 National Water Commission and Present Challenges Federal Water Resources Coordination42 Issue The Commission recommended federal organizational changes to improve efficiency and to meet future challenges for the planning, development, and management of the nation’s water and related land resources. The Commission found the then-active WRC an important and useful mechanism; however, it recommended changes to help the WRC better fulfill its roles of coordinating and appraising water policies and programs and of planning the conservation and development of the nation’s water resources. The Commission cited and agreed with numerous previous studies in supporting the independent review of federal water development proposals. The Commission found three areas in which the functions of federal agencies needed modifying. NWC Recommendations The Commission recommended for the WRC’s structure: • creation of an independent, full-time chairman on the staff of the White House reporting directly to the President; • placement in the Executive Office of the President; and • expansion of statutory membership to add the Secretaries and Administrators of Commerce, Housing and Urban Development, EPA, and Atomic Energy Commission, and eliminate the membership of the Secretary of Health. The Commission recommended the following actions to facilitate the WRC’s task: • authority to distribute planning funds; • extension of the authorization and removal of the appropriations cap on its grant program to support state water planning; • submission of a consolidated grant application for each state seeking funds from federal agencies for water planning and programs; • authority for the WRC chairman to coordinate federal participation in the river basin and water management compacts; and • authority for the WRC chairman to chair an independent review board examining federal water development proposals, river basin plans, and grant programs and make recommendations on their need, feasibility, and utility to the President and Congress. The Commission recommended eliminating duplication in the collection and distribution of basic water data; better managing the similar engineering functions in federal water resources agencies, and concentrating dispersed water technology efforts. Specifically, it recommended: 42 Prepared by (name redacted), Specialist in Environmental and Natural Resources Policy, Resources, Science, and Industry Division. Congressional Research Service 22 The 1973 National Water Commission and Present Challenges • combining NOAA and USGS into a new DOI agency responsible for water resources data, moving NOAA’s fisheries functions to the FWS, and having NOAA’s coastal zone management functions be part of the land planning functions of the federal government; • shifting USDA water engineering functions (e.g., reservoir design, channelization) to nonfederal entities; • shifting Reclamation from a construction agency toward an agency operating federal facilities efficiently in water-short regions; • limiting the Corps to only design and construction that cannot be efficiently performed by nonfederal entities and increase its nonstructural and nonfederal assistance actions; and • creating an Office of Water Technology by combining existing water research offices and activities placed in the DOI with a charter broad enough to meet other federal research needs. Current Status and Implementation Since 1973, significant shifts have occurred in the federal water resources institutional arrangements and organizations; however, the federalist division of responsibilities has remained largely intact. As recommended by the Commission, the WRC was located in the Executive Office of the President and membership was expanded in 1975 to include the Secretaries of Commerce, Housing and Urban Development, and Transportation, and the EPA Administrator. The WRC has not been funded or active since 1983; however, the authorization for the WRC still exists. By 1973, implementation of the Water Resources Planning Act of 1965 (P.L. 89-80; 42 U.S.C. §1962) had increased the coordination and planning of federal actions, particularly through the creation of the WRC. The 1965 act created the WRC and numerous river basin commissions charged with watershed planning. There has been no legislation comprehensively changing federal water resources since that act. Instead, the shifts in organizations and institutional arrangements came about from executive branch actions and incremental changes through legislation. Their cumulative effect has been a decrease since the 1970s of coordination of federal water agency activities and planning. Following years of decreasing support for river basin commission efforts, President Reagan in Executive Order 12319 ordered the termination in 1981 of six of the commissions created by the 1965 act and the transition of their activities to the member states. This effectively eliminated the federal river basin and broad-based watershed planning efforts.43 During this time, federal grants for state planning activities also largely disappeared. Since these changes, federal agency participation in planning and negotiation efforts within watersheds and between states has been constrained by the focus on specific projects. What remains of the federal planning assistance generally is a few programs scattered among several agencies. (See “Water Resources Project Planning and Evaluation,” above, for additional analysis.) 43 Some smaller programs remain (e.g., USDA’s NRCS small watershed program); however, none are on the scale of what was anticipated under the WRC and river basin commissions. Congressional Research Service 23 The 1973 National Water Commission and Present Challenges Review of federal water projects also has experienced many shifts since 1973. There is no entity that independently reviews water projects by all federal agencies. The Corps has maintained its construction program, although not at its 1960s level, and may continue to have significant construction responsibilities as it improves aging infrastructure, retools earlier projects to balance environmental needs, and is called on to provide flood and hurricane storm risk reduction projects. However, changes in the late 1980s and early 1990s reduced the level of review of Corps projects. For example, Congress eliminated the Corps-staffed Board of Engineers for Rivers and Harbors, which had reviewed the civil works plans from 1902 until WRDA 1992. Review continued to occur under the 1981 E.O. 12322, which requires that a Corps feasibility report be reviewed by the Office of Management and Budget (OMB) for consistency with the policies and programs of the President, planning guidelines, laws, and regulations. Following criticisms of a number of Corps planning studies for faulty analysis and New Orleans floodwall failures in 2005, Congress created in WRDA 2007 a process for external independent review of many Corps planning studies and for ongoing safety reviews during construction of significant flood and storm damage projects. How these provisions are implemented is still being determined. The WRDA 2007 reviews are limited to technical analysis and do not include a policy review. As the Commission predicted, Reclamation too has moved more toward management and has a less substantial construction function than it did in the 1950s and 1960s. In 1987, Reclamation formally adopted a new mission statement recognizing its increased role in water resources management vis-à-vis construction. Recent Reclamation efforts have included working with other DOI, federal agencies, and nonfederal parties, including Tribes, to resolve water conflicts through settlement agreements and assisting with water supply augmentation technologies (e.g., Reclamation’s water reuse program and its desalination research program). The NWC recommendations that NOAA’s responsibilities be divided among other agencies were not implemented. The challenge of accomplishing organizational changes like the Commission’s NOAA recommendations was seen when the Secretary of the Interior in the mid-1990s attempted to consolidate the biological research being conducted by DOI’s various agencies into a single agency. The effort was met with much resistance and skepticism, eventually being scaled back to creating a new biological division within the U.S. Geological Survey. While the channelization program at the USDA largely disappeared, USDA watershed efforts have continued. Specifically, USDA’s NRCS cooperates with states and local agencies to carry out engineering works to improve flood control and water use, including dam rehabilitation. Dam repair and safety remain areas of growing engineering and construction not only for NRCS but also for Reclamation and the Corps. The Commission’s recommendation to limit Corps design and construction activities to those that cannot be efficiently performed by nonfederal entities generally has not been a criterion used during authorization and appropriations. For example, Congress has authorized and appropriated funds for Corps participation in design and construction of municipal drinking water and wastewater projects. In the United States, drinking water and wastewater systems generally are the responsibility of municipalities; their design and construction are performed by the municipalities or their private engineering consultants (albeit sometimes with federal financial support). In an effort to define the scope of the Corps’ involvement in the growing area of ecosystem restoration, the G. W. Bush Administration in recent budgets used as one of its criteria for restoration projects that the Corps be uniquely well suited to perform the work. Congressional Research Service 24 The 1973 National Water Commission and Present Challenges The Commission’s recommendation to increase the Corps’ nonfederal assistance actions has not been implemented. The Corps has retained its Planning Assistance to States program and its Flood Plain Management Service, which in recent years have averaged roughly $6 million each in annual appropriations. However, this funding level represents a decline in federal support for these activities. In the mid-1970s, the Corps received roughly $30 million (in 2007 dollars) for regional planning and planning assistance to states, with another $30 million (in 2007 dollars) for its Flood Plain Management Service. In 1974, the Office of Water Research and Technology was formed in DOI through consolidation of some of the offices identified by the Commission. The Office of Water Research and Technology was abolished in 1982 and the desalination research program transferred to Reclamation. Since the 1960s and 1970s, the topical balance of the federal water research has shifted from social science topics (e.g., water demand, water institutions) and water supply augmentation and conservation (e.g., desalination), to water quality.44 Also since the early 1970s, the amount of the federal budget dedicated to all types of water research has been halved.45 Aspects of water resources have remained scattered across congressional committees, in a pattern generally similar to the fragmented arrangement in 1973, which the Commission did not find particularly problematic.46 Since 1973, other institutional and organization changes that are not specific to water resources, yet affect water resources, have occurred. For example, executive branch oversight and management direction in the water resources field has evolved. In particular, the Office of Management and Budget in 1973 functioned as an agency with dual management and budget missions. A reorganization in the 1990s reduced the distinction between management staff and budgetary staff; this resulted in less management oversight and in the administrations’ budget policy influencing both the short and long-term guidance provided to water resources agencies. Without the WRC, CEQ at times and other ad hoc mechanisms have been used to arbitrate and coordinate among federal agencies on water issues; however, there is no institutionally recognized system for conducting such coordination. The organizational landscape of water management also has shifted as a result of increased consideration of environmental issues; the Environmental Protection Agency (EPA), created in 1970, has the lead federal role in protecting the quality of the nation’s environment. In selected cases, EPA has influenced the implementation of federal water resources projects. EPA has also become a significant force in shaping a wide range of state, local, and private project planning and design through the agency’s implementation of its water quality and wetlands permitting responsibilities. 44 National Research Council, National Academy of Sciences, Confronting the Nation’s Water Problems: The Role of Research (Washington, DC: National Academies Press, 2004). 45 Ibid. 46 1973 NWC Report, p. 389. Congressional Research Service 25 The 1973 National Water Commission and Present Challenges Water Resources Authorizations, Budget, and Appropriations47 Issue The Commission found that the steps by which separate branches of government conceived and executed water resources projects needed to be closely linked, or coordinated, to efficiently use the nation’s water and fiscal resources. According to the Commission, the budgeting procedures neither reflected nor promoted regional or long-term water resources development. The Commission instead found that projects often were presented and considered individually. The Commission concluded that an annual appropriations process unnecessarily subjected construction completion to uncertainty as well as to both cost and lengthening of schedules (“schedule growth”). It found that a backlog of projects planned and evaluated under obsolete guidance and criteria overburdened the appropriations process and allowed initiation of projects that no longer merited the required investment. The Commission concluded that congressional politics and behavior tended toward particularized and fragmented decision-making. NWC Recommendations The Commission recommended: • using comprehensive river basin and regional development plans as the basis for authorization and appropriations for both individual projects and broader programs; • incorporating into budgeting the 20 major regions used by the WRC for planning; • moving from an annual construction appropriations process to full-cost budgeting; • giving federal program administrators authority to contract in advance of appropriations for programs meeting national objectives; • requiring five-year agency programs for existing and new construction projects; • requiring a five-year national budget for the multi-agency federal water program; • deauthorizing construction not begun within 10 years of authorization; and • reevaluating plans authorized more than five years before construction. Current Status and Implementation Although some of the Commission’s recommendations have been attempted, the basic functioning of the authorization, budgeting, and appropriations processes for water resources has not changed significantly since 1973. The consideration of project authorizations and appropriations as part of comprehensive river basin and regional development plans has not been practiced since the early 1980s, when most of those larger-scale federal water resources planning efforts were halted. (See “Water Resources Project Planning and Evaluation” for more information.) Project authorizations and appropriations generally still are considered on a project47 Prepared by (name redacted), Specialist in Natural Resources Policy, Resources, Science, and Industry Division. Congressional Research Service 26 The 1973 National Water Commission and Present Challenges specific basis. For example, although there is regular congressional consideration of an omnibus WRDA, the legislation consists mostly of authorizations of individual Corps study and construction projects. While there have been provisions in WRDAs that address policy issues, the authorizations generally are not considered as part of a comprehensive plan or review of Corps or federal water resources activities. The same is true for occasional omnibus Reclamation legislation. Budgeting for water resource projects also has remained project-specific, with some exceptions for large-scale restoration efforts such as some Everglades restoration funding. For example, Reclamation budgets consist of projects grouped by regions, but budgeting is not founded on regional resource plans. In recent years, the G. W. Bush Administration proposed funding the Corps operations and maintenance account based on hydrologic regions; however, this approach has not been adopted in enacted appropriations, due largely to concerns about a lack of transparency in how the regional requests were developed and about transparency in how regional appropriations would be implemented. Full-cost budgets and appropriations for water resources projects generally have not been used. A significant exception is the full funding via supplemental appropriations of the repair and strengthening of coastal storm protection facilities in New Orleans after Hurricane Katrina. Congress has used general contract authority to varying degrees for different programs. For many water programs since 1973, Congress has tightened its controls of contract authority in an attempt to preserve the congressional role in guiding appropriations. For instance, Congress recently has enacted more stringent rules for Corps multi-year contracts. Water resource agencies, along with many other agencies, have produced five-year strategic plans in response to the Government Performance and Results Act of 1994 (P.L. 103-62). These plans are not capital budgeting plans, instead they focus on agency mission, goals, and performance. There have been few efforts at capital budgeting by water resource agencies, and no sustained effort for coordinated budgeting for the entire federal water program. Congress has passed legislation requiring deauthorization of Corps construction projects that have not received appropriations for six years. Without other changes being enacted and with the continuation of authorization of individual projects, this deauthorization process has neither quelled the construction backlog nor ensured that construction activities satisfy current planning requirements. Reclamation has no general deauthorization process for unfunded projects; however, in limited cases, Reclamation authorizations contain a “sunset” provision. Because the G. W. Bush Administration had a “no new start” policy in recent Corps budgets, the vast majority of new construction projects have been initiated by congressional appropriations. There has been no requirement that new construction starts that were authorized many years prior be re-evaluated. The backlog of construction authorizations created tension between the G. W. Bush Administration, whose Corps budget concentrated funding on a smaller set of projects, and Congress, which applied a more distributed approach by appropriating to a larger set of projects and activities. An argument for concentrated appropriations is that the lower funding levels that individual projects receive under the distributed approach delay construction progress, resulting in increased cost and schedule growth, which represent lost economic efficiency. Those supporting a more distributed appropriations process, however, assert that a geographical and Congressional Research Service 27 The 1973 National Water Commission and Present Challenges jurisdictional dispersal of projects maintains the currency and relevance of the Corps’ mission. Furthermore, tradeoffs in economic efficiency, equity, and political feasibility have implicitly occurred to some degree during the development of the Corps’ annual construction appropriations. Data on cost and schedule growth of Corps civil works projects may help clarify the tradeoffs between the two approaches and identify improved opportunities for project management; however, little aggregated or systematic data about cost or schedule growth is available. Annual federal appropriations (not including supplemental appropriations) for water resources projects followed a declining trend after the mid-1960s, as a percentage of both gross domestic product (GDP) (Figure 2) and discretionary spending. During the 1970s and 1980s, nonfederal spending increased (Figure 3) in response to numerous forces including new federal standards for water quality and related municipal water and wastewater infrastructure investments. Environmental litigation and resource constraints have focused much of the new authorization and appropriation for water resources efforts on resolving multi-use resource conflicts and addressing new and instream demands. Safety and rehabilitation of aging federal infrastructure is a growing part of the agencies’ budgets and appropriations. Aging local infrastructure and interest in nonfederal dam removal are currently addressed, often on an ad hoc basis, by Congress through individual authorizations and annual appropriations for water resources agencies. The shift in federal water resources spending from construction to maintenance is evident in Figure 4. Figure 2. Federal Water Resources Spending as a Percentage of GDP (1956 -2007) 0.3 0.25 0.2 0.15 Operation and Maintenance Capital 0.1 0.05 0 1956 1961 1966 1971 1976 1981 1986 1991 1996 2001 2006 Source: CRS, with data from the Congressional Budget Office, CBO Infrastructure Spending Supplemental Tables, 2008 Update, available at http://www.cbo.gov/doc.cfm?index=9135. Congressional Research Service 28 The 1973 National Water Commission and Present Challenges Figure 3. Federal and State (and Local) Spending on Water Resources, 1956-1990 (in millions of 2006 dollars) 12,000 10,000 8,000 Federal 6,000 State 4,000 2,000 0 1956 1961 1966 1971 1976 1981 1986 Source: CRS, with data from the Congressional Budget Office, CBO Infrastructure Spending Supplemental Tables, 2008 Update, available at http://www.cbo.gov/doc.cfm?index=9135. Figure 4. Federal Water Resources Construction and Maintenance Spending (1956-2007, in millions of 2006 dollars) 12,000 10,000 8,000 Operation and Maintenance 6,000 Capital 4,000 2,000 0 1956 1961 1966 1971 1976 1981 1986 1991 1996 2001 2006 Source: CRS, with data from the Congressional Budget Office, CBO Infrastructure Spending Supplemental Tables, 2008 Update, available at http://www.cbo.gov/doc.cfm?index=9135. Congressional Research Service 29 The 1973 National Water Commission and Present Challenges Water and the Natural Environment The Commission’s report (primarily in Chapter 2) addressed the environmental impacts of water projects and water resource agency activities. The Commission noted negative impacts (e.g., alteration of stream habitat) as well as positive ones (e.g., recreational benefits of a reservoir). It found that the federal government insufficiently addressed ecological processes and environmental values in its water project and permitting decisions. Yet the Commission also noted that economic values and public safety often were at stake when choosing among water resource alternatives. The Commission identified three areas for improvement: • understanding and predicting the primary environmental impacts of water programs, uses, projects, and their alternatives; • assessing the secondary and broader environmental effects of these actions; and • incorporating environmental values and processes into decision-making. The report specifically discussed the environmental effects of reservoir development, flood policy, water development in estuarine and coastal ecosystems, water project effects on fish and wildlife, and channelization. 48 A related topic is the Commission’s recommendations for addressing fish and wildlife values in project planning. The Commission’s overarching concern that environmental impacts be analyzed in the decision-making process also is addressed in “Accounting for the Environment in Project Development,” above, which discusses implementation of NEPA. Since 1973, water resources development has slowed, and federal appropriations shifted from development to environmental preservation and operation and maintenance of infrastructure. Many of the concerns raised by the NWC have been addressed via implementation of environmental laws. Many large federal water actions are for ecosystem restoration and stream rehabilitation. Whether these changes and efforts have adequately addressed the Commission’s concerns is a matter of disagreement. The degree to which development and environmental protection tradeoffs are evaluated and weighed remains central to many current water resources conflicts. Reservoir Development49 Issue Chapter 2 of the Commission report includes a section on reservoir development. Creating a reservoir, by impounding water behind a dam or diverting it to an off-stream storage site, generally alters a river’s aquatic and riparian ecosystems, sometimes benefitting some species and ecosystems while harming others. Reservoirs inundate habitat and alter ecosystem properties by changing flow regimes, water temperature, and water quality. Changes in ecosystems due to reservoir construction can result in biodiversity loss and changes in species composition. 48 Chapter 2 also discussed development and impacts of water projects in the Great Lakes; however, this topic is not reviewed in this report. 49 Prepared by (name redacted), Specialist in Environmental and Natural Resources Policy, and (name redacted), Specialist in Natural Resources Policy, Resources, Science, and Industry Division. Congressional Research Service 30 The 1973 National Water Commission and Present Challenges Downstream of reservoirs, altered flows can change native fisheries and habitat. Dams creating reservoirs also can prevent the migration of fish species up- or downstream. The Commission also noted the social effects of reservoir development; reservoirs change the types of recreation opportunities available and the aesthetics of the landscape. The Commission believed that these alterations or effects should be considered when contemplating water resource decisions. NWC Recommendations The Commission’s recommendations for reservoir development were to: • develop a comprehensive database of the condition of the nation’s waters that encompasses water quality and quantity, ecological processes, and environmental attributes; • further research environmental impacts of water resource development; • adopt planning techniques that account for ecological processes and environmental values; • analyze environmental impacts of proposed projects and their alternatives; • promote decision-making in the face of uncertainty; and • monitor environmental consequences of projects post-construction. Current Status and Implementation Neither a national-level data set documenting the extent to which waterways have been channelized and impounded (and the effects of these measures) nor a national database of ecological and environmental conditions of waterways has been implemented. 50 Although there is not a national database, understanding of how reservoirs and their operations affect fisheries and habitat is much improved, and significantly more information on the state of the nation’s waters is available today than in 1973. The Commission’s recommendations regarding accounting for ecological values and analyzing environmental impacts today are considered largely through implementation of NEPA and ESA during project planning and evaluations necessary for major changes in project operations. Both NEPA and the ESA require extensive assessment of project impacts on the environment and consideration of alternative actions; however, there is no requirement to protect the overall function of such ecosystems and some argue that full accounting of ecosystem effects in project planning could still be improved. Few new large-scale U.S. reservoirs are currently under construction, although some are being considered, particularly in the West. Consequently, reservoir planning in recent decades has largely focused on balancing competing objectives in operation and management of existing reservoirs (as opposed to planning new projects), and in some cases managing for new objectives. For example, actions required to protect threatened or endangered species listed under the ESA have been significant drivers for many changes in operating plans. Conflicting objectives of operating Missouri River locks and dams—namely, maintaining flows for navigation and restricting or otherwise changing flows to protect seasonal 50 The H. John Heinz Center for Science, Economics, and the Environment, The State of the Nation’s Ecosystems (Cambridge University Press: Cambridge, England, 2002). Congressional Research Service 31 The 1973 National Water Commission and Present Challenges needs of some bird species—required controversial updates to the Missouri River reservoir control manual to provide for barge traffic and other purposes. Similar operational changes are occurring with salmon runs in the Sacramento and Columbia River basins and fishes in the California Bay-Delta, sometimes pitting one species against another. Data The Commission called for collecting and organizing a broad range of data on the condition of the nation’s water. The Commission report suggested including not only water quantity and quality factors but also geological attributes, soil properties, riparian vegetation, fisheries and climate factors, aesthetics, related land uses, and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR40573. Public record. Not legal advice.