# Water Resources Reform and Development Act of 2014: Comparison of Select Provisions > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR43298 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** July 14, 2014 - **Citation:** R43298 ## Text Water Resources Reform and Development Act of 2014: Comparison of Select Provisions (name redacted) Specialist in Natural Resources Policy (name redacted) Specialist in Natural Resources Policy (name redacted) Specialist in Transportation Policy (name redacted) Analyst in Environmental Policy (name redacted) Specialist in Resources and Environmental Policy July 14, 2014 Congressional Research Service 7-.... www.crs.gov R43298 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Summary The Water Resources Reform and Development Act of 2014 (WRRDA 2014, P.L. 113-121) became law on June 10, 2014. The conference report, H.Rept. 113-449, resolved differences between H.R. 3080, the Water Resources Reform and Development Act of 2013 (WRRDA 2013), and S. 601, the Water Resources Development Act of 2013 (WRDA 2013). Both bills represented omnibus authorization legislation for water resource activities, principally associated with the U.S. Army Corps of Engineers (Corps). Authorizing and Deauthorizing Projects. WRRDA 2014 authorized 34 construction projects totaling $25.65 billion ($15.64 billion federal, $10.01 billion nonfederal). It established expedited House and Senate procedures for bills authorizing construction projects meeting specified criteria. It requires an annual report from the Administration identifying proposed new studies, completed feasibility reports, and project modification reports. WRRDA 2014 also authorized a process to deauthorize previously authorized projects with federal costs to complete totaling $18 billion; the process will be led by the Administration, with opportunities for public input and congressional disapproval. Expediting Studies, Environmental Reviews, and Permits. The conference report, like H.R. 3080 and S. 601, aimed to expedite Corps studies and compliance with applicable environmental laws, including the National Environmental Policy Act (NEPA). It raised the project cost trigger for independent peer review of feasibility studies from $45 million to $200 million. Expanding Project Delivery and Financing Opportunities. The conference report, like H.R. 3080 and S. 601, encouraged nonfederal opportunities in delivering water resources projects. It expanded opportunities for crediting for nonfederal work, financial, and study and project management. Like S. 601, the conference report established a pilot program known as the Water Infrastructure Finance and Innovation Act (WIFIA) to finance water infrastructure projects. The Corps and the U.S. Environmental Protection Agency are responsible for administering the WIFIA pilot program. Investing in Navigation. WRRDA 2014 encouraged increased spending from the Harbor Maintenance Trust Fund (HMTF). It modified prioritization of HMTF funding among different types of harbors but retains similar provisions contained in H.R. 3080 and S. 601 reserving certain portions of funds to harbors with less cargo. The conference report, like H.R. 3080 and S. 601, did not enact changes to inland waterway revenues in general but increased the threshold for major rehabilitation efforts on inland waterways, authorized changes to waterway project delivery, and altered the cost-share for one project (Olmsted Locks and Dam). These changes may increase the likelihood of Inland Waterways Trust Fund (IWTF) monies being available for use on other inland waterway construction projects. Reducing Flood Risks. WRRDA 2014 authorized establishment of a levee safety initiative—a scaled-down version of S. 601 provisions—expanding Corps technical assistance and training to promote levee safety, Federal Emergency Management Agency (FEMA) assistance in establishing or improving state and tribal levee safety programs, and Corps levee rehabilitation assistance. Like H.R. 3080 and S. 601, WRRDA 2014 required the Corps to develop national levee safety guidelines and review. Congressional Research Service Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Restoring and Protecting Aquatic Ecosystems. WRRDA 2014 provided congressional direction on various efforts for regional river and coastal restoration (e.g., Chesapeake Bay, North Atlantic coastal restoration) and authorized the construction of projects which have previously been studied in the Everglades and Coastal Louisiana, among other places. It also added to Corps authorities for the prevention, control, and eradication of invasive species. Addressing Other Issues. WRRDA 2014 included provisions amending the applicability of the scope of the Environmental Protection Agency’s oil spill prevention, control, and countermeasure regulations, by exempting certain farms from the requirements. It also included amendments to certain water infrastructure provisions of the Clean Water Act (CWA). These CWA provisions, while representing the first amendments to CWA Title VI since 1987, did not address many of the more long-standing or controversial CWA issues. WRRDA 2014 did not include the ocean-related provisions of H.R. 3080 and S. 601. Instead, it authorized the Corps studies and limited construction of Corps projects to enhance ocean and coastal ecosystem resiliency. Congressional Research Service Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Contents WRRDA Conference Report Developments ................................................................................... 1 Comparison of H.R. 3080, S. 601, and Conference Report ............................................................. 3 Expediting Studies, Environmental Reviews, and Permits .............................................................. 4 Corps Studies ............................................................................................................................. 6 Environmental Reviews............................................................................................................. 7 Corps Permitting...................................................................................................................... 10 Expanding Project Delivery and Finance Opportunities................................................................ 16 Nonfederal Work and Leadership on Studies and Projects ...................................................... 16 Water Infrastructure Finance and Innovation Act (WIFIA)..................................................... 16 Authorizing Projects and Managing Subsequent Authorizations .................................................. 26 Project Authorizations and Authorized Project Purposes ........................................................ 26 Subsequent Authorization Processes ....................................................................................... 27 New Studies....................................................................................................................... 27 New Project Authorizations and Modifications of Project Scope ..................................... 27 Project Cost Modifications and Project Modifications ..................................................... 28 Investing in Navigation.................................................................................................................. 33 Harbors .................................................................................................................................... 33 Inland Waterways .................................................................................................................... 34 Reducing Flood Risks .................................................................................................................... 40 Restoring and Protecting Aquatic Ecosystems .............................................................................. 47 Ecosystem Restoration ............................................................................................................ 47 Invasive Species ...................................................................................................................... 48 Deauthorizing Projects and Managing the Backlog....................................................................... 51 Addressing Other Issues ................................................................................................................ 54 Oil Spill Prevention on Farms ................................................................................................. 54 Clean Water Act Amendments ................................................................................................. 54 Ocean Policy............................................................................................................................ 55 Tables Table 1. Provisions Covered by CRS Report ................................................................................... 4 Table 2. Select Expediting Study and Permit Provisions ............................................................... 11 Table 3. Select Provisions Intended to Expedite Environmental Reviews .................................... 13 Table 4. Select Provisions to Expand Project Delivery and Financing Opportunities ................... 18 Table 5. Select WIFIA Provisions .................................................................................................. 23 Table 6. Select Project Authorization Provisions ........................................................................... 30 Table 7. Select Provisions on Subsequent Authorizations of Studies, Projects, and Project Modifications .............................................................................................................................. 31 Table 8. Select HMTF Provisions .................................................................................................. 36 Table 9. Select Inland Waterways Provisions ................................................................................ 39 Congressional Research Service Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Table 10. Select Flood Safety Provisions ...................................................................................... 42 Table 11. Select Ecosystem Restoration and Invasive Species Provisions .................................... 49 Table 12. Select Provisions on Deauthorization and Managing the Backlog ................................ 52 Table 13. Select Ocean Policy, Oil Spill Prevention, and Clean Water Act Provisions ................. 56 Table A-1. Crosswalk of P.L. 113-121, H.R. 3080, and S. 601 Bill Titles ..................................... 59 Appendixes Appendix. Crosswalk of Titles and Subtitles of P.L. 113-121, H.R. 3080, and S. 601 ................. 59 Contacts Author Contact Information........................................................................................................... 60 Congressional Research Service Water Resources Reform and Development Act of 2014: Comparison of Select Provisions WRRDA Conference Report Developments The Water Resources Reform and Development Act of 2014 (WRRDA 2014, P.L. 113-121) became law on June 10, 2014. Its conference report, H.Rept. 113-449, resolved differences between the House-passed H.R. 3080, the Water Resources Reform and Development Act of 2013 (WRRDA 2013), and the Senate-passed S. 601, the Water Resources Development Act of 2013 (WRDA 2013).1 The conference report adopted Water Resources Reform and Development Act for the act’s title. Both H.R. 3080 and S. 601 represented omnibus authorization legislation focused on water resource activities, principally of the U.S. Army Corps of Engineers, and a few other environmental issues. The bills addressed many similar issues, but often used different means. During the House and Senate deliberations, some Members expressed frustration with how long Corps projects take. Some Members also expressed interest in authorizing new projects and deauthorizing older unconstructed projects. Some Members wanted more prominent nonfederal roles. Others supported more funding for harbor maintenance and improved inland waterway construction. The earmark debate and concerns about congressional roles also shaped each bill’s approach. The Administration provided comments during congressional deliberations. The two most recent communications consisted of a December 11, 2013, letter from the Assistant Secretary of the Army (Civil Works), hereinafter referred to as the ASA, to the conference managers;2 and Army Corps testimony before the U.S. House Committee on Transportation and Infrastructure (T&I), Subcommittee on Water Resources and Environment, on April 29, 2014. Authorizing Projects. WRRDA 2014 authorized a fixed set of 34 new construction projects totaling $25.65 billion ($15.64 billion in federal costs and $10.01 billion in nonfederal costs)3 and increased the authorization of appropriations for eight previously authorized projects. It established expedited House procedures for the remainder of the 113th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. It requires an “Annual Report” from the ASA to Congress identifying proposed new studies (including studies proposed by nonfederal entities) and completed feasibility and project modification reports. When the Senate passed S. 601 on May 15, 2013, there were an estimated 19 construction projects representing approximately $10.8 billion ($6.3 billion federal and $4.5 billion nonfederal) that appeared to meet the new project authorization criteria in S. 601. When the House passed H.R. 3080 on October 23, 2013, it would have authorized a fixed set of 23 new construction projects at a total cost of $13.0 billion ($7.7 billion in federal costs and $5.3 billion in nonfederal costs). WRRDA 2014 included no comparable title to Title III of S. 601, Project Modifications. 1 On October 31, 2013, the Senate considered H.R. 3080, and replaced the text passed by the House with the text of S. 601 as passed by the Senate. The Senate insisted on its amendment and requested a conference. While the House and Senate versions of H.R. 3080 were the basis for conference, this report compares H.R. 3080 as passed by the House and S. 601 as passed by the Senate, which is identical to the Senate version of H.R. 3080. 2 Letter from Jo-Ellen Darcy, Assistant Secretary of the Army, Civil Works, to Senator Barbara Boxer, Senator David Vitter, Representative Bill Shuster, and Representative Nick J. Rahall, II, December 11, 2013, http://www.eenews.net/ assets/2013/12/12/document_daily_03.pdf; hereinafter ASA’s December 2013 letter to conference managers. 3 These amounts represent the project construction cost (including beach nourishment); they do not include operation and maintenance. These amounts do not represent the same information as a CBO score of the potential budget impact of authorizing these projects. Congressional Research Service 1 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Expediting Studies, Environmental Reviews, and Permits. P.L. 113-121, like H.R. 3080 and S. 601, encouraged completion of Corps studies within three years, limited study costs, and established new procedures intended to expedite Corps completion of environmental compliance requirements, including the National Environmental Policy Act (NEPA). Independent peer review was among the “reforms” adopted in WRDA 2007 (P.L. 110-114). WRRDA 2014’s conference report raised the standard threshold for performing an independent peer review of a feasibility study from $45 million total project costs to $200 million, and extend applicability of the review requirement to studies initiated through 2019. Expanding Project Delivery and Financing Opportunities. WRRDA 2014, like H.R. 3080 and S. 601, encouraged nonfederal opportunities in delivering water resources projects through provisions on crediting for nonfederal work and increasing opportunities for nonfederal contributions and nonfederal study and project management. It required the ASA to establish a five-year pilot program for nonfederal management of studies and a five-year pilot program of 15 projects for nonfederal management of project construction. It also consolidated various authorities under which nonfederal entities can perform construction on water resources projects and allow the federal share of construction costs to be reimbursed or credited (and credit transferred to other projects). Like S. 601, WRRDA 2014 established a pilot program known as the Water Infrastructure Finance and Innovation Act (WIFIA) to finance water infrastructure projects. The Corps and the U.S. Environmental Protection Agency (EPA) are responsible for administering the pilot program. Investing in Navigation. WRRDA 2014, like H.R. 3080 and S. 601, encouraged increased spending from the Harbor Maintenance Trust Fund (HMTF). As in S. 601, the enacted legislation eliminated the 50% nonfederal cost sharing requirement for harbor maintenance between 45 and 50 feet deep. It modified prioritization of HMTF funding among different types of harbors but retained similar provisions contained in H.R. 3080 and S. 601 reserving certain portions of funds to harbors with less cargo. The final legislation, like H.R. 3080 and S. 601, did not enact changes to inland waterway revenues in general but increased the threshold for major rehabilitation efforts on inland waterways, authorized changes to waterway project delivery, and altered the cost-share for one project (Olmsted Locks and Dam). These changes may increase the likelihood of Inland Waterways Trust Fund (IWTF) monies being available for use on other inland waterway construction projects. Reducing Flood Risks. P.L. 113-121 authorized establishment of a levee safety initiative that expanded Corps technical assistance and training to promote levee safety, expanded Federal Emergency Management Agency (FEMA) assistance in establishing or improving state and tribal levee safety programs, and expanded Corps authority to provide levee rehabilitation assistance. Elements of the enacted initiative are similar to provisions in S. 601, but with either no or lower levels of authorizations of appropriations. Like H.R. 3080 and S. 601, the enacted legislation required the ASA to develop national levee safety guidelines and review and update Corps guidelines for vegetation on levees. Similar to S. 601, the conference report allowed the ASA to repair a levee to the design level of protection (rather than to pre-storm conditions) or if needed modify the project to address major deficiencies or implement nonstructural measures. WRRDA 2014 directed the ASA to ensure that part of its levee inspection program provides adequate information for reaching a levee accreditation decision for purposes of floodplain mapping related to FEMA’s National Flood Insurance Program (NFIP) mapping. Congressional Research Service 2 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Restoring and Protecting Aquatic Ecosystems. WRRDA 2014 provided congressional direction related to various regional river and coastal restoration efforts (e.g., Chesapeake Bay, North Atlantic coastal restoration) and authorized the construction of projects which have previously been studied in the Everglades and in Coastal Louisiana, among other places. Similar to a proposal in H.R. 3080, WRRDA 2014 also added to Corps authority to undertake activities for the prevention, control, and eradication of invasive species at Corps projects. Deauthorizing Projects and Managing the Backlog. WRRDA 2014 created a one-time process aimed at deauthorizing previously authorized projects with federal costs to complete totaling $18 billion; the ASA is responsible for leading the process, and is required to provide opportunity for public input and congressional disapproval. This one-time process and other backlog provisions included in P.L. 113-121 combined elements of the deauthorization and backlog management provisions of H.R. 3080 and S. 601. Addressing Other Issues. The conference report included provisions, different from those in S. 601, amending the applicability of the Environmental Protection Agency’s oil spill prevention, control, and countermeasure regulations. The enacted legislation also included certain water infrastructure provisions of the Clean Water Act (CWA) that were not included in H.R. 3080 or S. 601. These CWA provisions, while representing the first amendments to CWA Title VI since 1987, did not address many of the more longstanding or controversial CWA issues. Most of the CWA provisions included in WRRDA 2014 addressed CWA Title VI, which authorized grants to states to capitalize state loan programs (State Revolving Funds, or SRFs) for wastewater treatment facility projects. P.L. 113-121 did not include the ocean-related provisions of the House and Senate bills. H.R. 3080 would have prohibited programs or actions authorized by H.R. 3080 to be used for furthering implementation of Executive Order 13547 on coastal and marine spatial planning. S. 601 would have created a National Endowment for the Oceans. Instead, WRRDA 2014 authorized the ASA to undertake studies of Corps projects in coastal zones to enhance ocean and coastal ecosystem resiliency; it also authorized the construction of smaller projects or inclusion of recommendations for congressional authorization in the Annual Report. Comparison of H.R. 3080, S. 601, and Conference Report The remainder of this report provides a side-by-side analysis of selected provisions of H.R. 3080, S. 601, and the conference report which became WRRDA 2014. The selection of provisions addressed herein was based on attention during congressional deliberations, significance for the Corps and its activities, or policy differences between the bills. Many of the project-specific or geographically specific provisions (e.g., provisions of Titles III and V of S. 601, Title IV of the conference report) generally are not discussed. The Appendix identifies the comparable titles of the two bills and conference report. The report is divided into the sections shown in Table 1. Congressional Research Service 3 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Table 1. Provisions Covered by CRS Report Sections of H.R. 3080 CRS Report Section Titles and Sections of S. 601 Titles and Sections of Conference Report of WRRDA 2014 (P.L. 113-121) “Expediting Studies, Environmental Reviews, and Permits” 101, 102, 103, 104 2033, 2034, 2042 1001, 1002, 1005, 1006, 1044 “Expanding Project Delivery and Finance Opportunities” 107, 108, 109, 112, 116, 117 2011, 2012, 2013, 2025, 2032, Title X, 11005 1007, 1014, 1015,1016, 1017, 1018, 1020, 1043, 5021-5035 “Authorizing Projects and Managing Subsequent Authorizations” 111, 118, 121, 133, 143, 401, 402 1002, 1003, 1004, 2003, 2004, 2014, 2055, 4002, Title V 1023, 1030, 1036, 1045, 7001, 7002, 7003, 7004 “Investing in Navigation” 201, 202, 206, 212, 213, 214, 216 7003, 7004, 7005, 7006, 7007, 7008, 8003, 8004, 8005 2002, 2003, 2004, 2006, 2007, 2101, 2102, 2104, 2105, 2106, 2107 “Reducing Flood Risks” 122, 124, 126, 127, 147 2003, 2020, 2021, 2022, 2030, 2040, 6004, 6005, 6007, 6009, Title IX, 11004 1030, 1036, 1037, 3001, 3013, 3014, 3016, 3017, 3025, 3029, “Restoring and Protecting Aquatic Ecosystems” 137, 144, 145 2045, 2052, 3018, 5002, 5003, 5007 1011, 1039, 4009, 4010, 4011 “Deauthorizing Projects and Managing the Backlog” 119, 301, 302, 303 2049 6001, 6002, 6003 “Addressing Other Issues” 146 Title XII, 13001 1049, 4014, 5001-5013 Expediting Studies, Environmental Reviews, and Permits Like both the House and Senate bills, the conference report for WRRDA 2014 included provisions aimed at expediting water project delivery and permit processing. Most of these provisions intended to expedite— • Corps studies by establishing deadlines, schedules, or funding limits for feasibility studies and eliminating certain study requirements; • environmental compliance requirements, including primarily provisions intended to expedite Corps compliance with the National Environmental Policy Act and outside agency issuance of any permit, review, or other approval required under any applicable federal law; and • Corps permitting. During the House and Senate deliberations, some Members expressed frustration with the cost and duration of Corps studies. Most Corps feasibility studies are cost-shared 50% federal and 50% nonfederal. The degree to which various factors and requirements contribute to the time it takes to complete a Corps study is difficult to parse out and attribute to a single environmental requirement. For example, activities performed to demonstrate compliance with applicable Congressional Research Service 4 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions environmental requirements may occur concurrently to the Corps completing actions required by other laws (e.g., preparing analyses necessary to determine a project’s economic costs and benefits). The larger, more complex, and costly the project being studied, often the longer each step in the study process may take to complete. Anecdotal evidence indicates that individual studies may take longer due to disagreements with federal resource agencies or state permitting agencies, but there are limited data available to determine whether such delays are systemic or project-specific. The role that Congress plays in authorizing studies and project construction and the timing of appropriations have been identified as factors having significant effect on the duration of studies and ultimately project delivery.4 For example, in terms of the project development process, years may pass between the following steps shown in each bullet: • approval to initiate a study, to appropriation of federal funds for the study, • complete reconnaissance study, to initiation of feasibility study,5 and • ASA transmission to Congress of the feasibility report, to congressional construction authorization. At an April 29, 2014, House T&I Subcommittee on Water Resources and Environment hearing, the Corps witness testified that, while the agency is committed to expediting the Corps planning process: certain elements of provisions in the proposed legislation regarding the elimination of reconnaissance studies, fixed lengths for feasibility studies, project permitting and environmental streamlining, study authority resolutions, and the application of Independent External Peer Review, could actually become counterproductive. By constraining the Corps from exercising the same initiative that led to Civil Works Transformation and Planning Modernization, certain requirements could lead to a less flexible, overly restrictive program that reduces efficiency, hinders project approval, and increases the probability of a project being terminated.6 4 On June 5, 2013, Major General Michael Walsh, Deputy Commanding General for Civil and Emergency Operations, testified at the House T&I Subcommittee on Water Resources and Environment’s hearing “A Review of the United States Army Corps of Engineer’s Reports” (testimony available at http://transportation.house.gov/hearing/reviewunited-states-army-corps-engineers-chief%E2%80%99s-reports). In response to various questions from several Members of Congress, the General discussed issues that may delay project delivery, as well as efforts being implemented by the Corps to streamline project delivery. Processes or procedures related to meeting environmental compliance requirements were not included among those that delayed projects or that were being changed to accelerate delivery, he testified. The limited availability of funds necessary to continue the number of projects authorized for construction was identified as the primary factor affecting the timing of project delivery. When asked specifically whether or which environmental regulatory requirements implemented by outside agencies could be eliminated to expedite project delivery, the General stated that he could not identify a single set of requirements established by Congress that he would suggest eliminating to streamline the process. 5 A feasibility study cannot be begun for most projects until a feasibility cost-share agreement with the nonfederal entity has been negotiated and signed. Also, beginning a feasibility report may be considered as starting a new study phase during Administration budget development; ongoing studies, rather than studies entering new phases, have been prioritized for appropriations in recent years. 6 U.S. Congress, House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Army Corps of Engineers Chief’s Reports, 113th Cong., 2nd sess., April 29, 2014. Congressional Research Service 5 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Findings and Responses to Independent Peer Review of Corps Studies Whether independent peer review provisions of WRDA 2007 (P.L. 110-114) have improved Corps projects and decision-making continues to be discussed. In a November 2013 Corps report on peer review, the Corps stated: only one significant change to any project study recommended plan has resulted from IEPR. A review comment on the Olmsted Lock and Dam exposed a flaw in the treatment of contingencies within the cost estimate. Correcting the cost estimate revealed a significant underestimation of the costs and necessitated revising the report supporting a reauthorization request required under section 902 of WRDA 1986, as amended. Overall, most review comments have focused on the need for improved documentation (e.g., assumptions, methods, and rationale) and additional or more rigorous analyses. The report also stated that peer review panel reports covering “68 project studies have produced 1155 total comments, with 353 considered high significance.” Average cost per review was $175,000. The Corps responds, but does not always adopt a panel’s comments. For example, a 2013 panel made a high significance comment that the “Federal interest has not been demonstrated ... because a multi-port analysis assessing competition among regional ports is not provided.” In 2014, the Corps chose not to adopt this comment explaining that: “it makes the most sense to assume the net effect this [regional competitor port] interplay would be equilibrium. As such it is valid to assume that each seaport will continue to retain its historical share of regional cargo...shifting cargo benefits among regional ports is excluded from the decision making process.” In a 2010 Corps report on peer review, the Corps stated that a high significance comment “describes a fundamental problem with the project that could affect the recommendation, justification, or success of the project.” The 2010 report included per project review costs and summarized Corps responses. At that time, the project with the highest review cost was the Louisiana Coastal Protect and Restoration project at $586,000; changes made to the project in response to panel findings included: additional analyses to address risk assessments of structural measures, additional documentation of tradeoffs to inform plan selection and address tradeoffs, and actions to coordinate activities across coastal Louisiana programs and business lines. The least costly review was $97,000. This 2010 Corps report found: “A frequent comment provided to the [coastal storm damage reduction] was that the design analyses were deficient and that a more refined analysis of design and build needed to be conducted” and “The reviewers of the [deep draft navigation] reports commented that assumptions regarding future business (e.g., trucking costs, longshoreman association fees, cement industry, transportation costs) and the benefits provided were not supported by analysis.” A 2012 Government Accountability Office (GAO) report on Corps’ peer review identified that in addition to direct costs of peer reviews, Corps resources also are used to manage reviews; the GAO report also stated: “the addition of peer review to the Corps study process has resulted in indirect costs by altering project study schedules to allow for time needed to complete peer reviews.” GAO found: “By choosing to apply peer review late in the project study process, the Corps has effectively chosen to not use the results of peer review to enhance its decision-making process and ensure selection of the most effective project alternatives.” GAO recommended: “the Corps to, among other actions, better track peer review studies, revise the criteria for determining which studies undergo peer review and the timing of these reviews, and improve its process for ensuring contractor independence. “ The 2013 Corps peer review report documents progress made on GAO’s recommendations. Sources: U.S. Army Corps of Engineers, Report on the Implementation of Independent Peer Review, Nov. 2013, and Summary of Independent External Peer Review Final Panel Comments, Nov. 5, 2010; and Memorandum from L.G. Thomas P. Bostick, Chief of Engineers, to Assistant Secretary of the Army (Civil Works), on Jacksonville Harbor, Duval County, Florida - Final USACE Response to Independent External Peer Review, April 16, 2014, http://www.usace.army.mil/Missions/CivilWorks/ProjectPlanning/CompletedPeerReviewReports.aspx; U.S. GAO, Peer Review Process for Civil Works Project Studies Can Be Improved, GAO-12-352, March 8, 2012. Corps Studies The conference report for WRRDA 2014 required that the Corps complete feasibility studies within certain time limits (with more flexibility provided for timing of study completion than in H.R. 3080) and federal funding limits. Like §104 of the House bill, the conference report eliminated the requirement to prepare a separate reconnaissance study and instead directed the Corps to include analysis required for those studies (preliminary analysis of the federal interest and the costs, benefits, and environmental impacts of the project) in a feasibility report. Like Congressional Research Service 6 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions §2034 of the Senate bill, the conference report required the Corps to develop a detailed project schedule for certain milestones needed to complete feasibility studies. Selected provisions related to study acceleration are shown in Table 2. Independent peer review was among the “reforms” adopted in WRDA 2007 (P.L. 110-114).7 The conference report raised the standard threshold for performing an independent peer review of a feasibility study; it increased from $45 million total project costs to $200 million. Like S. 601, the conference report extended the requirement for independent peer review from those studies initiated between 2007 and 2014 to those initiated between 2007 and 2019, and amended the congressional requirements on the reporting on decisions not to perform peer review and distribution of the results of the peer review and the agency’s responses. Environmental Reviews Project acceleration provisions in WRRDA 2014 (§1005) are intended to expedite the Corps’ overall project development by expediting one element of the feasibility report process— preparation of documents necessary to comply with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). To do so, WRRDA 2014 (§1005(a)) amended the project streamlining requirements in Section 2045 of WRDA 2007 (P.L. 110-114, codified at 33 U.S.C. 2348). The NEPA compliance process is sometimes referred to as the environmental review process. Broadly, NEPA requires federal agencies to fully consider a project’s significant impacts on the environment, and to inform the public of those impacts, before making a final decision about the project.8 Provisions in the conference report (§1005(a)) expanded the definition of “environmental review process” to include the “process for and completion of any environmental permit, approval, review, or study required for a water resources project under any Federal law other than NEPA.”9 Provisions in the conference report, however, apply primarily to actions taken by the Corps within the context of demonstrating compliance with NEPA. In accordance with its broader obligation to determine a project’s potential economic, social, and environmental benefits and detriments, Corps planning is performed in accordance with its “Environmental Evaluation and Compliance” process. That process is implemented by the Corps to ensure that activities necessary to identify and demonstrate compliance with any applicable environmental requirements are integrated into the Corps’ overall planning process. The Environmental Evaluation and Compliance process includes steps necessary to ensure compliance with environmental requirements that arise from local, tribal, state, or federal laws and regulations that may apply as a result of project-specific impacts to protected resources. The 7 Another “reform” included in WRDA 2007 related to changes in how the Corps mitigates its project’s environmental impacts. The conference report adopted provisions related to mitigation (§1044 and §1045), which were similar to provisions in S. 601. The conference report also included language (§1028) authorizing the Corps to participate in costshared fish habitat measures at Corps projects with fish hatcheries that have been authorized to compensate for fish losses. 8 Regulations implementing NEPA, applicable to all federal agencies, were promulgated by the Council on Environmental Quality (CEQ) under 40 C.F.R. 1500-1508. Corps procedures to implement NEPA supplement the CEQ regulations, at 33 C.F.R. 230, take into account issues specific to Corps projects, including requirements explicitly applicable to the preparation of a feasibility study. 9 See also the definition of “project study,” in the conference report (§1005(a)), that refer to feasibility studies carried out under 33 U.S.C. 2282. Congressional Research Service 7 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions NEPA compliance process generally forms the framework that the Corps uses to identify applicable project-specific requirements and to coordinate with outside agencies, if necessary, to comply with those requirements. For projects that require a feasibility study, the Corps usually must prepare an environmental impact statement (EIS), pursuant to NEPA. Generally, it is Corps practice to ensure that any outside agency consultations and decisions regarding any permits or approvals are complete before a feasibility study/EIS is complete. Many of the project acceleration provisions in the conference report (§1005(a)) pertained to outside agency involvement in the NEPA process or in making decisions under other environmental laws. Those provisions largely were intended to coordinate actions or input from outside federal agencies which have some expertise regarding an affected resource or jurisdiction by law to control the impacts to that resource (e.g., an agency authorized to issue a permit or other approval associated with an impact to that resource).10 Prior to WRRDA 2014, Section 2045 of WRDA 2007 (33 U.S.C. 2348) required that the Corps establish a coordinated review process for any water resources project that requires the preparation of a feasibility study and an EIS under NEPA. When implementing that process, the Corps was authorized to establish a schedule for federal, state, or local government agencies or Indian tribes to process, approve, or issue all reviews, analyses, opinions, permits, licenses, and approvals required for a water resources project (which is also allowed under existing regulations implementing NEPA).11 Provisions included in the conference report similarly apply to project studies that require the preparation of an EIS under NEPA, but may also be applied to other projects as deemed appropriate by the ASA. As in Section 2045 of WRDA 2007, many of the provisions in WRRDA 2014 codify requirements that are largely similar to preexisting regulations implementing NEPA.12 However, some provisions may add to or change preexisting Corps practices or requirements used to demonstrate compliance with NEPA, or change outside agencies’ procedures for completing their respective decision-making processes. Selected provisions that may result in such changes are listed in Table 3. While the conference report may change certain procedures applicable to environmental reviews, none appear to substantially affect the Corps’ obligation to comply with existing environmental requirements (established under NEPA or any other environmental law) that may apply to a project. Until the Corps interprets the project acceleration provisions and integrates them with its current Environmental Evaluation and Compliance process, it is difficult to determine whether the procedural changes will expedite environmental reviews. Some of provisions could add time to 10 The Corps is obligated to coordinate its analysis of project impacts with other federal agencies that have jurisdiction over any affected resource or that may have expertise necessary to assess the degree to which the project may have a regulated impact. Those agencies would not necessarily be authorized to “approve” or “disapprove” a Corps project. However, they may be required under federal law to specify conditions under which a project may proceed (e.g., in the form of a permit or certification) or methods to mitigate impacts to a protected resource. 11 See CEQ requirements applicable to time limits, at 40 C.F.R. 1501.8. 12 Many provisions in the conference report (§1005) codified requirements largely similar to requirements established by CEQ in its regulations implementing NEPA (see “NEPA and Agency Planning” requirements in 40 C.F.R. Part 1501, “Elimination of duplication with state and local procedures” at 40 C.F.R. 1506.2, and “Agency procedures” at 40 C.F.R. 1507.3). These included provisions in §1005 pertaining to the project review process, lead agency responsibilities, participation of the lead and cooperating agencies, programmatic compliance, memoranda of agreement for early coordination, and development of categorical exclusions. That is, the conference report codified requirements similar to those already implemented by the Corps, in accordance with previous directives from CEQ. Congressional Research Service 8 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions the Corps’ already complex planning process. For example under WRRDA 2014, the Corps is required to prepare a coordination plan to coordinate and schedule outside agency participation in the environmental review process (see Table 3). When preparing the plan, the Corps is required to set deadlines for outside agencies to complete the environmental review process—something the Corps could previously do on a project-by-project basis. Those deadlines may be extended for “good cause.” Other than requiring the Corps to prepare an additional planning document, this provision may not substantially alter the Corps’ procedures to coordinate outside agency actions. The conference report (§1005(a)) also establishes unique requirements applicable to the NEPA compliance process, in general, but may have limited impact on the Corps’ NEPA process, in particular. Specifically, financial penalty provisions create a unique system of reprogramming a federal agency’s funding if that agency does not reach a decision on a permit, license, or other approval by a certain deadline (the later of 180 days after an application for the approval is complete; and the Corps completes the NEPA process). As discussed above, the Corps generally does not complete the NEPA process until permits and other required approvals are in place. Also, approvals required for Corps projects, including those required under federal environmental laws, are most often issued by state, tribal or local agencies, not federal agencies. Given the timing in which the Corps generally has such approvals in place and the role that federal agencies generally have in issuing such approvals for Corps projects, there may be limited circumstances in which the financial penalty provisions may be invoked. WRRDA 2014 also included a provision (§1005(b)) related to actions associated with the repair, reconstruction or rehabilitation of a project in operation or under construction when damaged in an event associated with a major disaster or emergency declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121 et seq.). Such actions would be processed as a categorical exclusion (CE), pursuant to CEQ regulations (40 CFR 1508.4). According to those CEQ regulations, projects known by an agency to have no significant impact on the environment may be categorically excluded from the requirement to prepare an environmental assessment or EIS, under NEPA. Those regulations also provide for conditions under which an agency may be required to determine whether a given project involves “extraordinary circumstances” that may result in significant impacts (e.g., circumstances that may require additional review under NEPA). WRRDA 2014 (§1005(b)) may not substantially change Corps practices. In its procedures implementing NEPA, the Corps explicitly identifies “activities at completed Corps projects” as actions processed as CEs, regardless of whether those activities are undertaken in response to an emergency.13 If the action is to address a project “under construction,” any additional NEPA compliance may not be required, since the impacts of that project would presumably be evaluated in an existing NEPA document. Also, the Stafford Act statutorily exempts certain disaster-related activities from NEPA, including the repair, restoration, reconstruction, or replacement of a damaged public facility.14 As a result, some disaster–related repairs undertaken by the Corps could potentially be waived from NEPA. Designating a project as a CE is not a waiver from NEPA. Until the Corps interprets this directive, it is not clear whether it could result in a project being subject to some, albeit limited, level of NEPA review when it otherwise may have been subject to no review, pursuant to the Stafford Act. 13 See 33 C.F.R. § 230.9(b). The NEPA exclusion is specified at 42 U.S.C. 5159; the actions potentially subject to that waiver involving the repair, restoration, and replacement of existing facilities are specified at 42 U.S.C. 5172. 14 Congressional Research Service 9 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Corps Permitting In addition to undertaking water resources projects, the Corps also has regulatory responsibilities related to activities that may affect navigable waters and wetlands. H.R. 3080 and S. 601 each included provisions that could be identified as accelerating or streamlining the Corps’ regulatory program as shown in Table 2. Both bills proposed eliminating the expiration of a Corps authority that allows the agency to accept funds from nonfederal public entities to expedite the processing of Corps permits for projects serving a public purpose. The authority was set to expire December 31, 2016. Additionally, H.R. 3080 would have expanded the eligibility of entities that can provide funds to the Corps to expedite its processing of permits. The current authority is limited to nonfederal public entities. H.R. 3080 would have added publicutility companies and natural gas companies. In December 2010, Congress clarified in P.L. 111315 that private entities were not eligible entities under this authority after concerns that a Corps district was allowing limited use of the authority by private entities at the request of public entities.15 S. 601 would not have expanded the eligible entities for this authority; instead, S. 601 would have required the Corps take steps to improve the transparency, reporting, and consistency of how this authority is implemented.16 Ultimately WRRDA 2014 (§1006) altered and expanded the existing authority to allow publicutility companies and natural gas companies to provide funds to the Corps to expedite the agency’s processing of permits related to a project or activity for a public purpose. It also extended the existing authority indefinitely by eliminating its expiration, with the limitation that the authority for public utility companies and natural gas companies expires seven years after enactment. For Further Reading CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning: Background and Issues for Congress, by (name redacted). CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations, and Activities, by (name redacted) and (name redacted). 15 Although there were no congressional reports that accompanied the enacted bill, the text of the bill had been included in a larger bill (H.R. 5892, Water Resources Development Act of 2010) and discussed in the accompanying report, H.Rept. 111-654; the report stated: “the Committee has expressed concern that allowing a regulated entity to contribute to the cost of its regulator has the potential to affect the objectivity of that regulatory.” 16 In a 2010 letter to the then-Chairman of House T&I, the Government Accountability Office (GAO) concluded that the Corps had made some progress on GAO’s 2007 recommendations to improve implementation of the authority, but that it had not fully developed an oversight effort for district implementation of this authority (GAO, Status of U.S. Army Corps of Engineers Effort to Implement GAO’s 2007 Recommendations Regarding Its Section 214 Authority, GA)-10-385R, February 19, 2010, http://www.gao.gov/assets/100/96553.pdf). Congressional Research Service 10 Table 2. Select Expediting Study and Permit Provisions Topic H.R. 3080 S. 601 Conference Report/P.L. 113-121 Feasibility Study Limits and Termination §101 would have required feasibility studies be completed within 3 years of initiation, have a maximum federal cost of $3 million, and be concurrently reviewed within the Corps. The Corps could have extended the study period to up to one year, but if not complete after that extension, the Assistant Secretary of the Army (Civil Works) (ASA) would have to notify nonfederal partner and Congress that authorization for the feasibility study would be terminated. §2032 would have required that a feasibility study be completed within 3 years of initiation and at a maximum federal cost of $3 million. If the ASA determined the study cannot be conducted accordingly due to its complexity, nonfederal entities would have been notified and a new project and cost timeline provided. No change to existing study deauthorization process (33 U.S.C. 2264). §1001required feasibility studies be completed within 3 years of initiation (unless the ASA determines a study is too complex to comply with this requirement), have a maximum federal cost of $3 million, and be concurrently reviewed within the Corps. §1001 deauthorized any feasibility study that is not completed 7 years after initiation. §1001 required that the ASA, within 90 days of initiating a feasibility study, begin the processes for federally mandated reviews; convene a meeting of all federal, tribal, and state agencies that may be required to conduct a reviews and analyses for the study; and provide the information for such reviews and analyses in a thorough and timely manner. The ASA is required to report on implementation 18 months and again four years after enactment. The conference report made no changes to the existing study deauthorization process in 33 U.S.C. 2264. Expediting Corps Permit Processing §102 would have expanded an existing authority (33 U.S. 2201 note which had been limited to nonfederal public entities) to allow public-utility companies and natural gas companies (as defined in 42 U.S.C. 16451) to provide funds to the Corps to expedite the agency’s processing of permits related to a project or activity for a public purpose. §102 also would have extended the authority indefinitely by eliminating its expiration. §2042 would have extended the authority indefinitely by eliminating its expiration. It would have clarified the Corps requirements for public availability and consistency of information regarding the use of this authority and require the agency to produce an annual report on its use. §1006 expanded an existing authority (33 U.S.C. 2201 note) which was limited to nonfederal public entities to allow public-utility companies (as defined in 42 U.S.C. 16451) and natural gas companies (as defined in 42 U.S.C. 16451 and including a person engaged in the transportation of natural gas in intrastate commerce) to provide funds to the Corps to expedite the agency’s processing of permits related to a project or activity for a public purpose. §1006 also extended indefinitely the existing authority by eliminating its expiration, with the limitation that the authority for public utility companies and natural gas companies expires 7 years after enactment. §1006 required that GAO, within 4 years, study implementation of this authority for these two types of companies. §1006 clarified the Corps requirements for public availability and consistency of information regarding the use of this authority and required the agency to produce an annual report on its use. CRS-11 Topic H.R. 3080 S. 601 Conference Report/P.L. 113-121 Feasibility Report Schedule No comparable provision. §2034 would have amended requirements applicable to the preparation of Corps reports (33 U.S.C. 2282) to require the preparation of a “Detailed Project Schedule” to identify milestones needed to complete a feasibility report and establish deadlines to reach those milestones. For any missed deadline, the Corps would have been required to submit a report to the nonfederal partner detailing why it was missed. §1002, among other things, amended requirements applicable to the preparation of Corps reports (33 U.S.C. 2282) to require the preparation of a “Detailed Project Schedule” identify milestones for study completion and establish deadlines to reach those milestones. For any missed deadline, §1002 required the Corps to submit a report to the nonfederal partner detailing why it was missed. Consolidated Reconnaissance and Feasibility Studies §104 would have repealed existing directive (33 U.S.C. 2282(b)) to the ASA to prepare reconnaissance study before preparing a feasibility study; and would have amended requirements applicable to the contents of feasibility reports to require the inclusion of preliminary analysis previously required for reconnaissance studies. No comparable provision. §1002, among other things, repealed an existing directive to the ASA to prepare reconnaissance studies, like H.R. 3080. No language was provided to clarify whether or not the collection of preliminary analysis data is to be cost-shared or 100% a federal expense. Independent Peer Review Changes No comparable provision. §2007 would have amended the independent peer review requirements for feasibility studies from applying to studies initiated between 2007 and 2014 to those initiated between 2007 and 2019. It also would have provided amended direction on reporting on reasons for not initiating a peer review and distribution of the results of the peer review and the agency’s responses. §1044 raised the standard trigger for independent peer review of feasibility studies from projects estimated to cost $45 million to $200 million, while extending the requirement for such review for 12 years from 2007 (i.e., through 2019). §1044 also altered the peer review requirements for reporting and distribution similar to S. 601. Source: CRS. CRS-12 Table 3. Select Provisions Intended to Expedite Environmental Reviews Topics H.R.3080 S.601 Conference Report/P.L. 113-121 Project Acceleration §103(b) would have amended and replaced Section 2045 of WRDA 2007 (33 U.S.C. 2348, Project Streamlining ) to create Streamlined Project Delivery procedures that would have applied to project studies, initiated after enactment, that require the preparation of an EIS under NEPA. §2033 would have amended Section 2045 of WRDA 2007 to establish new Project Acceleration procedures. In addition to project studies that require an EIS, the Secretary would have been authorized to apply the procedures to other projects, as the Secretary deemed appropriate. §1005(a) amended and replaced Project Streamlining provisions in Section 2045 of WRDA 2007 (33 U.S.C. 2348) with new Project Acceleration procedures intended to expedite compliance with NEPA and other environmental requirements. Similar to S. 601, the procedures apply to project studies (i.e., projects that require the preparation of a feasibility study) that require the preparation of an EIS, but also may be applied to other projects as the ASA deems appropriate. (Selected amendments to Section 2045 are discussed below.) Coordination Plan and Deadlines §103(b) would have included “Coordinated Reviews” provisions, proposed under Section 2045(f), that would have required the Corps to consult with relevant outside agencies to establish a “Coordination Plan” and “Schedule” to coordinate the timing of public and agency participation in the environmental review process. §2033 would have included “Coordinated Reviews” provisions, proposed under Section 2045(j), that would have required the development of a Coordination Plan for purposes similar the plan required in H.R. 3080, but with no separate provisions applicable to a required schedule. Instead, the Corps would have been required to incorporate the plan into the project schedule milestones established in the Detailed Project Schedule, proposed in §2034 (see above). §1005(a) included “Coordinated Reviews” provisions, under Section 2045(g), that required the Corps to consult with and with the concurrence of the project sponsor and each cooperating agency to establish a Coordination Plan to coordinate public and agency participation in the environmental review process. Similar to provisions in S. 601, the Corps is required to incorporate the plan into the Detailed Project Schedule. The Conference report specified factors to be considered when establishing a schedule for completion of the environmental review process, largely similar to the proposed factors that would have been considered in H.R. 3080, with the exception that the schedule must be completed as soon as practicable, but not later than 45 days after the close of the public comment period for a draft EIS. This directive was largely similar to a requirement proposed in S. 601 that was included among the Issue Identification and Resolution provisions in proposed Section 2045(k), discussed below. Apart from potential timeframes established in the schedule, the Corps would have been required to establish “comment deadlines” for outside agencies to comment on a draft EIS and “other comment periods” that may have been associated with the environmental review process. Also, the proposed Section 2045(f)(4) included “deadlines for decisions under other laws.” The provision would have included deadlines for outside federal or nonfederal agencies to make a determination regarding or to approve or disapprove a project study. Separate statutory deadlines would have been set for decisions required either before or after the NEPA process is complete. If no action CRS-13 Like H.R. 3080, deadlines would have been established for comments on a draft EIS or “other comments,” but also would have specified conditions under which those deadlines could be extended. Provisions applicable to “deadlines for decisions under other laws” would have been included, but would have used deadlines established as part of a Coordination Plan for an individual project, not a statutory deadline applicable to all projects. In contrast to H.R. 3080, if an agency missed a deadline, the Corps would have been Topics H.R.3080 S.601 Conference Report/P.L. 113-121 was taken by the agency within the require timeframe, the Corps would have been authorized to close the record for the project as it relates to that decision. required to report missed deadline to Congress, not close the record on the decision. Provisions applicable to the establishment of deadlines for comments on a draft EIS, “other comments,” and decisions under other laws are largely similar to those in the S. 601. Dispute Resolution Procedures §103(b) would have included “Issue Identification and Resolution” provisions,” proposed under Section 2045(g), that would have established procedures intended to identify and resolve potential disputes that may have arisen between the Corps and outside federal and nonfederal agencies involved in the project. §2033 would have included “Issue Identification and Resolution” provisions, proposed under Section 2045(k); these would have established procedures to resolve disputes between the Corps and outside federal and nonfederal agencies involved in the project. Unique to the Senate proposal, S. 601 would have allowed the Secretary, not later than 45 days after the close of the public comment period for a draft EIS, to convene a meeting with the project sponsor and relevant outside agencies (federal and nonfederal) to establish a schedule to complete decisions on the project. Unlike H.R. 3080, S. 601 would have included requirements applicable to a multi-tiered dispute resolution process, that could have been initiated by the Secretary, and that could potentially reach the Council of Environmental Quality or the President. §1005(a) included “Issue Identification and Resolution” provisions, under Section 2045(h), that are, with a few exceptions, largely similar to those proposed in S. 601. One exception was that it did not include a multi-tiered dispute resolution process. Instead, the Secretary may resolve an issue with the heads of other relevant federal agencies. Financial Penalty Provisions No comparable provisions. §2033 would have included “Financial Penalty Provisions,” in the “Issue Identification and Resolution” provisions proposed under Section 2045(k)(5), that would have specified conditions under which a federal agency could have been fined if it failed to render a decision, required under any federal law, within the later of 180 days after—the Corps completed the NEPA process; and an application for a required permit, license, or approval was completed. Among other provisions, S. 601 would have specified the dollar amount of potential fines and the limit on such fines that could be imposed on a single agency office for a §1005(a) included “Financial Penalty Provisions,” in the “Issue Identification and Resolution” provisions under Section 2045(h)(5), that were largely similar to those proposed in S. 601. CRS-14 Topics H.R.3080 S.601 Conference Report/P.L. 113-121 given project, the total amount assessed in a single years on a single agency office, and conditions under which an agency may not be fined. Statute of Limitations §103(b)would have included “Timing of Claims” provisions, proposed under Section 2045(i), that would have barred judicial review of a permit, license, or other approval issued by a federal agency for a project study unless it is filed within 150 days publication of a notice in the Federal Register announcing that the permit, license, or other approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law which allows judicial review. No comparable provision. §1005(a) included “Timing of Claims” provisions, under Section 2045(k), that were largely similar to those in H.R. 3080, with the exception that judicial review of a permit, license, or other approval issued by a federal agency for a project study be barred unless it is filed within three years after the publication of a notice in the Federal Register announcing that approval. The conference report specifies that this provision creates no new right to judicial review or limit a right of review if someone was found to have violated a permit, license, or other approval. A new statute of limitations would apply if a supplemental EIS is prepared. Categorical Exclusions in Emergencies §103(c) would have specified that the repair, reconstruction, or rehabilitation of a water resources project, operating or under construction when damaged by an event related to a major disaster or emergency, as declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, would have been categorically excluded from the requirement to prepare an environmental assessment or EIS under NEPA, pursuant to 40 C.F.R. 1508.4. No comparable provision. §1005(b) included provisions largely similar to those proposed in H.R. 3080, with the exception that the categorical exclusion applies to such projects if commenced within two years of the date of the disaster/emergency declaration. Source: CRS. a. The provisions in §1005(a) are presented as amendments to Section 2045 of WRDA 2007 (i.e., not to 33 U.S.C. 2348). To more easily identify provisions being discussed in this table, many of those provisions are additionally identified by their respective subsection in Section 2045. CRS-15 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Expanding Project Delivery and Finance Opportunities Frustrations with the pace of Corps studies and construction, in part shaped by the pace of congressional authorization and limitations on available federal appropriations, has fostered interest in nonfederal entities, including private interests, having greater roles in project development, construction, and financing. The challenge is whether nonfederal resources can be leveraged while focusing current and future federal funds on those activities most in the national interest. Nonfederal Work and Leadership on Studies and Projects Like H.R. 3080 and S. 601, WRRDA 2014 included multiple provisions to encourage and manage nonfederal participation in project delivery. Table 4 identifies provisions for permitting, crediting, and reimbursing for nonfederal work, and provisions that establish pilot programs for nonfederal management and financing. The conference report consolidated most of the authorities for nonfederal leadership for water resources studies and construction under two authorities, 33 U.S.C. 2231 and 33 U.S.C. 2232.17 WRRDA 2014 (§1014), like H.R. 3080, provided a mechanism for nonfederal entities to initiate work on a project which has a completed feasibility study, the milestone prior to a Chief’s Report. A Chief’s Report consists of the approval and recommendations for a project by the Corps’ Chief of Engineers. The nonfederal entity would be eligible to receive credit or reimbursement if Congress subsequently authorizes the project. The conference report also required the ASA to establish a 5-year pilot program for nonfederal management of studies and a 5-year pilot program of 15 projects for nonfederal management of project construction. Water Infrastructure Finance and Innovation Act (WIFIA) Like S. 601, WRRDA 2014 included the Water Infrastructure Finance and Innovation Act (WIFIA), which authorized a five-year pilot program for loans and loan guarantees for flood damage reduction projects assisted by the Corps and public water supply and wastewater projects assisted by the Environmental Protection Agency (EPA). The WIFIA concept is modeled after a similar program that assists transportation projects, the Transportation Infrastructure Finance and Innovation Act, or TIFIA, program. H.R. 3080 did not include comparable provisions. In a letter to the conferee managers, the Administration had expressed concerns with the WIFIA proposal in S. 601, “which would expand the Environmental Protection Agency’s and the Corps’ role in local water infrastructure projects and not provide Federal assistance in the most efficient manner.”18 The conference report adopted the Senate’s WIFIA provisions with some additions and modifications, as shown in Table 5. Notably, the conference report expanded the types of projects 17 The extent to which the annual use of these authorities may be limited is not addressed by the conference report; that is, no changes were made to 33 U.S.C. 2221 stating that agreements proposed for execution by the ASA or the Corps under various authorities, including 33 U.S.C. 2231 and 33 U.S.C. 2232, shall be limited to total credits and reimbursements for all applicable projects not to exceed $100,000,000 in each fiscal year. 18 See footnote 2. Congressional Research Service 16 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions that the Secretary of the Army may support with WIFIA assistance to include projects for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement. Responding to concerns raised by some groups that WIFIA could impair and diminish support for wastewater and drinking water State Revolving Fund (SRF) programs, the conference report included language requiring EPA, when the agency receives applications for WIFIA assistance, to give state infrastructure financing authorities a right of “first refusal” to finance the project. Finally, the conference report reduced the authorized funding for the pilot program from $250 million total for each agency ($50 million per year) to $175 million total for each agency (beginning with $20 million for FY2015 and increasing to $50 million for FY2019). For Further Reading Congressional Distribution Memorandum, available from author: “Credit for Nonfederal Work on Army Corps Projects” by (name redacted), April 12, 2013. CRS Report R43315, Water Infrastructure Financing: Proposals to Create a Water Infrastructure Finance and Innovation Act (WIFIA) Program, by (name redacted). Congressional Research Service 17 Table 4. Select Provisions to Expand Project Delivery and Financing Opportunities Topic H.R. 3080 Permits for Nonfederal Work at Existing Corps Projects §107 would have established benchmarks (e.g., approval of complete applications in 45 days) and processes to expedite permits that would have approved nonfederal modifications to Corps projects, known as §14 applications. No comparable provision. §1007 included a provision similar to H.R. 3080. Nonfederal Study of Projects No comparable provision. No comparable provision. §1014 replaced an existing authority (33 U.S.C. 2231) for nonfederal studies of harbor projects with a similarly structured authority that applies to all water resources development projects. Nonfederal Construction of Authorized Projects §108 would have expanded an existing authority (33 U.S.C. 701b13) for nonfederal construction of authorized projects to all type of Corps projects and would have required that work be performed consistent with the laws and regulations that apply to Corps construction (e.g., Davis-Bacon Act wage requirements would have applied). No comparable provision. §1014 replaced an existing authority for nonfederal construction of harbor projects (33 U.S.C. 2232) with a similarly structured authority that applies to all water resources development projects. In addition to the existing limits in 33 U.S.C. 2232, §1014 allowed the ASA to establish conditions on the project. Unlike the previous language in 33 U.S.C. 2232 which had required that the ASA determine the project was “economically justified and environmentally acceptable,” §1014 required the ASA to make a determination on whether the “project is feasible.” Unlike the previous language in 33 U.S.C. 2232 which only allowed for reimbursement for the federal share incurred by the nonfederal entity without interest, §1014 allowed for reimbursement, credit, and transfer of credit to a different project; however, it does not specify whether this is with or without interest. §1014 added a requirement that the ASA notify House T&I and Senate Environment and Public Works (EPW) Committees when a nonfederal entity notifies the ASA of its intent to construct a project using this authority. §1014 conditions any credit or reimbursement for the federal share of costs on the ASA determining that all “Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified” by the ASA were complied with during construction. §2013 would have allowed nonfederal entities that construct authorized flood damage reduction projects to receive credit (in lieu of the federal reimbursement) for the federal share of project costs and §1022 allowed a nonfederal entity undertaking construction under 33 U.S.C. 701b-13 before the date of enactment (§1014 repealed 33 U.S.C. 701b-13) to receive credit or be reimbursed for the federal share of costs. The credit may be transferred to other flood damage reduction studies or projects of the nonfederal entity. Credit in Lieu §108 would have allowed the of Reimburse- nonfederal entity undertaking work ment under 33 U.S.C. 701b-13 to receive credit or be reimbursed for the federal share of costs. The credit could have been transferred to any CRS-18 S. 601 Conference Report/P.L. 113-121 Topic H.R. 3080 S. 601 other authorized study or project of the nonfederal entity. to transfer that credit to other flood damage reduction projects or studies. Repeal of Nonfederal Study and Construction Authorities − Consolidation of Authorities §108 would have repealed provisions of existing law authorizing the ASA to review nonfederal studies and construction of specific types of shore protection and harbor projects (33 U.S.C. 2232, 33 U.S.C. 426i-1, 33 U.S.C. 2232 note) No comparable provision. §1014 repealed provisions of existing law authorizing the ASA to review nonfederal studies and construction of specific types of shore protection and flood protection projects (33 U.S.C. 426i-1, 33 U.S.C. 2232 note, 33 U.S.C. 701b-13. These project types (along with ecosystem restoration and other Corps project purposes) appear to be encompassed within the definition of a water resources development project used in §1014 for eligibility under the new 33 U.S.C. 2232. §1014 included a savings provision stating that §1014 does not affect existing agreements under these authorities or the existing authority in 33 U.S.C. 2232. Maintenance of Navigation Projects Constructed by Nonfederal Entity §108 would have required that the ASA be responsible for operation and maintenance (consistent with standard cost-sharing requirements) of an authorized harbor or inland harbor project constructed by a nonfederal entity if certain criteria were met prior to construction, including that the project was economically justified and environmentally acceptable. §2032 would have allowed the ASA to assume operation and maintenance responsibilities of a navigation channel deepened by a nonfederal entity prior to Dec. 31, 2012, if certain criteria were met (e.g., project had been authorized by Congress and the project was economically justified and environmental acceptable). §1014, largely similar to the existing authority in 33 U.S.C. 2232, required that the ASA be responsible for operation and maintenance (consistent with standard cost-sharing requirements) of a federally authorized harbor or inland harbor constructed by a nonfederal entity if prior to construction certain criteria are met, including that the project is feasible, and after construction that the ASA finds that the project remains feasible and was constructed in accordance with applicable permits and standards. §1014 added the condition that the ASA is responsible for this operation and maintenance only if prior to construction there is a written operation and maintenance agreement between the ASA and the nonfederal entity. §109 would have expanded the authority for the ASA to accept nonfederal monetary contributions; allow any eligible nonfederal entity to contribute (not only states and political subdivisions); and would have allowed contributions for inland waterways and for post-disaster project repair and restoration. §11005 would have allowed the ASA to accept and expend funds contributed by nonfederal entities for repairing, restoring, or replacing water resources projects damaged or destroyed by a major disaster or other emergency if the ASA determines it was in the public interest. Nonfederal Monetary Contributions (no credit or reimbursement allowed) CRS-19 Conference Report/P.L. 113-121 §1016 allowed the ASA to assume operation and maintenance responsibilities of a federally authorized harbor or inland harbor constructed by a nonfederal entity prior to Dec. 31, 2014, without requiring that the ASA after construction find that the project remains economically justified and environmentally acceptable (which is a requirement in 33 U.S.C. 2232). §1015 expanded the authority (33 U.S.C. 701h) for the ASA to accept nonfederal monetary contributions. §1015 allowed any eligible nonfederal entity to contribute (not only states and political subdivisions) and allowed contributions for inland waterways and for operations of hurricane barriers to support recreation consistent with the authorized project purpose. §1015 required written notice to House T&I, Senate EPW, and both Appropriations Committees before accepting funds under this authority. §1017 authorized a 5-year pilot program for the ASA to accept nonfederal monetary contributions to increase the hours of operation of waterway locks. Topic H.R. 3080 Authority for Nonfederal Construction of Projects Prior to Congressional Authorization §112 would have created a new authority for nonfederal entities to initiate construction after a completed feasibility report. §112 would have allowed for credit or reimbursement if Congress subsequently authorized the project and if the construction was consistent with the laws and regulations that apply to Corps construction. No comparable provision. §1014 authorized, subject to the specified conditions, nonfederal construction of water resources development projects which was defined as including those projects with “a project recommendation that results from” a Corps produced feasibility report, a feasibility study completed by a nonfederal entity consistent with 33 U.S.C. 2231, and a feasibility study authorized by Congress. §1014 did not explicitly state whether a favorable recommendation by the ASA (or the Chief of Engineers) is required for the Corps produced feasibility report or the feasibility study completed by a nonfederal entity. §1014 allowed for reimbursement, credit, and transfer of credit to a different project, and did not specify whether this is with or without interest. §1014 conditioned any credit or reimbursement on the ASA determining that all “Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified” by the ASA were complied with during construction. Projects Eligible for Work-inKind Credit §116 would have defined “water resources project.” Environmental infrastructure activities (which typically are municipal water supply and wastewater projects) were included. §2012 would have expanded crediting to include environmental infrastructure assistance activities. §1018 expanded crediting under (42 U.S.C. 1962d-5b) to include environmental infrastructure assistance activities. In-Kind Credit §116 would have provided credit for for Design design work performed prior to a Work crediting Memorandum of Understanding. §2012 would have authorized a provision similar to H.R. 3080. §1018 authorized a provision similar to H.R. 3080 and S. 601. Excess In-Kind Contributions and Their Reimbursement §2012 would have required the ASA to reimburse excess in-kind contributions (i.e., any excess above the nonfederal cost-share resulting from work-in-kind credit and the value of contributions of lands, easements, rights-of-way, relocation, or improvements to enable disposal of dredged materials (LERRDs)), except for navigation projects. §1018 authorized a provision similar to S. 601. CRS-20 No comparable provision; that is, as specified in 42 U.S.C. 1962d-5b, work-in-kind credit would have remained limited to the nonfederal cost-shares unless otherwise specified. S. 601 Conference Report/P.L. 113-121 Topic H.R. 3080 Transfer of Excess In-Kind Credit Across Studies and Projects No comparable provision; 42 U.S.C. 1962d-5b would not allow excess credit or its transfer. See §108 for authority to transfer credit under that authority. §1020 authorized a provision similar to S. 601. §2011 would have allowed, for 10 years, the ASA to apply excess credit from one project to another study or project if the nonfederal entity submitted a comprehensive crediting plan. Crediting Guidance Update No comparable provision. §2012 would have required an update of the crediting guidance and regulations and specifies an update process and required elements. §1018 required an update of the crediting guidance and regulations similar to S. 601. Pilot of Nonfederal Construction §117 would have required the ASA to establish a pilot program for nonfederal project management and delivery of financing, design, or construction of no more than 15 authorized navigation or flood damage reduction projects. Nonfederal government entities or private entities could have participated. Payment for work upon completion could have been made from unobligated federal balance for the project or other amounts appropriated to the Corps not to exceed the federal share of design and construction. §2025 would have required the ASA to establish a pilot program for nonfederal construction management of no more than 15 previously authorized projects. Unobligated federal balance for the project would have been transferred to the nonfederal entity after execution of a project partnership agreement; additional amounts could have been transferred from the pilot program’s appropriations. The program would have been authorized at $25 million for each year from FY2014 to FY018. No definition of eligible nonfederal entity was provided. §1043 required the ASA to establish a 5-year pilot program for nonfederal construction management of not more than 15 qualifying projects authorized prior to enactment. Hurricane, coastal and inland navigation, and ecosystem restoration projects are eligible for participation in this pilot. §1043 allowed the ASA to transfer unobligated federal monies for the project to the nonfederal entity after execution of a project partnership agreement; additional amounts could be transferred from the pilot program’s appropriations. The program is authorized at $25 million for each year from FY2015 to FY019. No definition of eligible nonfederal entity was provided. §1043 required that work be performed consistent with the laws and regulations that apply to Corps construction (e.g., Davis-Bacon Act wage requirements apply). §1043 allowed the Corps to provide technical assistance, including assistance with processing permits, to the nonfederal entity on a reimbursable basis. §1043 stated that nothing in this subsection affects the cost-sharing requirements; it did not explicitly mention credit or reimbursement for the federal construction share. CRS-21 S. 601 Conference Report/P.L. 113-121 Topic Pilot of Nonfederal Studies H.R. 3080 No comparable provision. Source: CRS. CRS-22 S. 601 No comparable provision. Conference Report/P.L. 113-121 §1043 required the ASA to establish a 5-year pilot program for nonfederal entities to perform feasibility studies for flood, hurricane, coastal and inland navigation, and ecosystem restoration projects; the program’s authorization of appropriations is $25 million for each year from 2015 to 2019. §1043 allowed the ASA to transfer any unobligated federal monies to the nonfederal entity and to provide funds appropriated under this authority to nonfederal entities to carry out the feasibility study (but not to exceed the federal share of the feasibility study costs). If the ASA determines the study complies with federal law once project construction is authorized, §1043 allowed the ASA to credit the portion of study costs that would have been the federal responsibility toward the nonfederal construction cost of the project. §1043 required that work be performed consistent with the laws and regulations that apply to Corps construction (e.g., Davis-Bacon Act wage requirements apply). §1043 allowed the Corps to provide technical assistance to the nonfederal entity on a reimbursable basis. Table 5. Select WIFIA Provisions Topic S. 601 Conference Report/P.L. 113-121 Pilot of Innovative No comparable provision Financing (Loans and Loan Guarantees) for Flood Control, Public Water Supply, and Wastewater Projects (WIFIA) Title X would have authorized a pilot program for the Corps and the EPA to provide direct loans and loan guarantees to nonfederal entities for certain flood control, public water supply, and wastewater treatment projects through a Water Infrastructure Finance and Innovation Act (WIFIA) program. Title V, Subtitle C (Sections 5021-5035) included provisions similar to provisions in Title X of S. 601. WIFIA short title and definitions No comparable provision Short title (§10001). Purposes (§10002). Definitions of terms (§10003). Short title, the Water Infrastructure Finance and Innovation Act of 2014 (§5021). Conference report omits “Purposes.” §5022 defined terms same as S. 601, but omitted “rural water infrastructure” definition. WIFIA Authority to Provide Assistance No comparable provisions §10006 would have authorized the Secretary §5023 authorized a provision similar to S. 601. of the Army and EPA Administrator to provide financial assistance to carry out water infrastructure pilot projects. WIFIA Eligible Entities No comparable provision §10004 would have included corporations, §5025 authorized a provision similar to S. 601. partnerships, joint ventures, trusts, federal, state or local governments, tribal governments or consortia, and state infrastructure financing authorities as eligible. WIFIA Projects Eligible for Assistance No comparable provision §10007 would have included flood control or hurricane and storm damage reduction projects as eligible for WIFIA assistance, plus activities eligible for assistance under the Clean Water Act or Safe Drinking Water Act State Revolving Fund (SRF) programs, energy efficiency projects at public water supply or wastewater plants, repair or replacement of public water supply or wastewater plants, desalination or water recycling project, acquisition of real property, or a combination of projects. CRS-23 H.R.3080 §5026 was same as S. 601, but added the following as eligible for Corps assistance: environmental restoration, coastal or inland harbor navigation improvement, and inland and intracoastal waterways navigation improvement. Topic H.R.3080 S. 601 Conference Report/P.L. 113-121 WIFIA Activities Eligible for Assistance No comparable provision §10008 would have included developmentphase activities; construction; acquisition of real property; capitalized interest and reserve funds; and refinancing of interim funding, long-term project obligations, or WIFIA assistance as eligible. §5027 authorized a provision similar to S. 601, but omitted refinancing. WIFIA Project Selection No comparable provision Under §10009, to be eligible for assistance, a project would have to be creditworthy. Eligible project costs shall be not less than $20 million, except rural water infrastructure projects serving up to 25,000 persons shall be not less than $5 million. Projects must be publicly sponsored. WIFIA projects may not also use financing with taxexempt municipal bonds. §10009 details selection criteria, such as a project’s regional or national significance and multiple others. §5028 was generally the same as S. 601. Regarding public sponsorship requirement, it allowed the obligor to demonstrate to the Corps or EPA that the affected state, local, or tribal government has been consulted and supports the proposed project. For projects seeking assistance from EPA, the legislation required the Administrator to give state infrastructure financing authorities a “right of first refusal” to finance the project. WIFIA Secured Loans No comparable provision §10010 would have authorized the Corps or EPA may make secured loans or loan guarantees to finance or refinance eligible project costs. Project assistance would have required an investment-grade rating. A secured loan would not have been allowed to exceed the lesser of 49% of eligible project costs and, if the secured loan did not receive investment-grade rating, the amount of the senior obligations of the project. Maturity date would have been no more than 35 years. Total amount of federal assistance from all sources would not have been more than 80% of total costs, except for rural water projects. §5029 was generally the same as S. 601, but provided that the maturity date of a secured loan shall be the earlier of 35 years or the useful life of a project. Secured and guaranteed loans may not be used for refinancing. Retains 49% limit, but see §5033 below. WIFIA State, Tribal, and Local Permits No comparable provision Under §10012, recipients of WIFIA assistance would have been required to obtain any required state, local, or tribal permit or approval. §5031 authorized a provision similar to S. 601. CRS-24 Topic H.R.3080 S. 601 Conference Report/P.L. 113-121 WIFIA Funding No comparable provision §10014 would have authorized $50 million annually to each the Corps and EPA for FY2014-FY2018 ($250 million total for each agency). §5033 authorized to each the Corps and EPA $20 million for FY2015, $25 million for FY2016, $35 million for FY2017, $45 million for FY2018, $50 million for FY2019 ($175 million total for each agency). §5033 required the Corps and EPA to set aside not less than 15% of amounts available for each fiscal year for small community water infrastructure projects, but unused set-aside funds may be used for other projects if unobligated on June 1 of the fiscal year. §5033 authorized the Corps and EPA to make available up to 25% of available funds each year for loans in excess of 49% of total project costs [see §5029]. WIFIA Reports No comparable provision §10015 would have required the Corps and EPA to report to Congress 2 years after enactment and every 2 years thereafter on projects receiving WIFIA assistance §5034 required the Corps and EPA to provide information on a public Internet site on applications for WIFIA assistance and projects selected. Also required the GAO to report to Congress in 4 years on the WIFIA pilot programs, including recommendations for continuing, changing, or terminating the WIFIA program. (§5034) WIFIA “Buy American” No comparable provision §10016 would have required projects receiving WIFIA assistance use Americanmade iron and steel. A project could have obtained a waiver if this requirement would have been inconsistent with the public interest, increased project costs by more than 25%, or if U.S.-made products were not produced in sufficient quantity or of sufficient quality. §5035 authorized a provision similar to S. 601. The provision codified similar statutory provision in the Consolidated Appropriations Act, 2014, that applies to wastewater and drinking water SRF capitalization grants (P.L. 113-76). Source: CRS. CRS-25 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Authorizing Projects and Managing Subsequent Authorizations Project Authorizations and Authorized Project Purposes Congressional authorization is required for most Corps new construction projects, and significant post-authorization modifications to a project’s scope or cost. For new construction authorizations, WRRDA 2014 authorized a fixed set of 34 new construction projects totaling $25.65 billion ($15.64 billion in federal costs and $10.01 billion in nonfederal costs), as shown in Table 6. All of the authorized projects have completed Chief’s Reports; however, only 25 had been formally submitted by the ASA to Congress at the time of the conference report. The other nine projects, which represented $3.73 billion in projects, were awaiting a recommendation by the ASA and its transmittal to Congress at the time of the conference report.19 For project modifications, the conference report authorized eight project cost modifications.20 When the Senate passed S. 601 in May 2013, there were an estimated 19 construction projects representing approximately $10.8 billion ($6.3 billion federal and $4.5 billion nonfederal) in construction costs that appeared to meet the criteria in §1002 of the S. 601. When H.R. 3080 was passed by the House in October 2013, it would have authorized a fixed set of 23 new construction projects and project scope modifications at a total cost of $13.0 billion ($7.7 billion in federal costs and $5.3 billion in nonfederal costs), and two project cost modifications. CRS identified one project with a completed Chief’s Report that is not included in the conference report. 21 H.R. 3080 as passed by the House included no construction authorization for projects that had their Chief’s Reports completed after the House T&I Subcommittee on Water Resources and the Environment hearing on Chief’s Reports held on June 5, 2013. On April 29, 2014, the House Transportation and Infrastructure Subcommittee on Water Resources and the Environment held a hearing on the Chief’s Reports completed subsequent to the June 2013 hearing. All 34 projects included in the conference report have Chief’s Reports and were the subject of a hearing. Regarding existing project authorizations, H.R. 3080 included a provision to clarify that the act would not have expanded the authorized purposes of a dam or reservoir; S. 601 would have allowed the ASA to carry out activities to improve the efficiency of dam operations and as practicable meet other related benefits, including environment protection and restoration, water supply storage, hydropower generation, and flood risk reduction. The ASA’s December 2013 letter to conference managers indicated that the Administration viewed that the provisions in both 19 These projects would not have qualified for authorization under S. 601 unless the ASA had transmitted the project’s recommendation prior to enactment. One of the projects, the Mid-Chesapeake Bay Island, MD project had its Chief’s Report in August 2009; however, it has not been transmitted by the ASA. The project is on hold pending an update of the Dredge Material Management Plan anticipated in 2015. 20 Insufficient information is publicly available to determine the difference between total project construction cost and present value of previous authorization of appropriations, which would represent the amount of the authorized increase. 21 The Mississippi River Gulf Outlet (MRGO) ecosystem restoration project has had difficulty securing a nonfederal sponsor. The restoration’s report was transmitted to Congress in September 2013; that transmittal supported $1.3 billion ($0.86 billion federal/$0.46 billion nonfederal) of the project’s total cost of $3 billion, and deferred the ASA’s determination on the remainder. As of December 2013, the project had no nonfederal cost-sharing sponsor; the Chief’s Report from September 2012, stated “Because a non-federal sponsor willing to cost share in implementation of the ecosystem restoration plan has not been identified, this report recommend no further action under Section 7013.” Congressional Research Service 26 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions of the bills (§143 in H.R. 3080, §2014 in S. 601) would have hampered needed reform, giving current uses of Corps projects priority over new uses.22 The Administration instead supported legislation that would have added fish and wildlife protection as an authorized purpose for all Corps dams and provide administrative flexibility to revise project operating guidelines. The conference report (§1045) required the ASA to assess the management practice, priorities, and authorized purposes of Corps reservoirs in arid regions to evaluate their impacts on water supply during drought, and identify actions to be carried out within existing authorities to increase project flexibility for mitigating drought impacts. The conference report stated that nothing in the section changes the authorized purpose of a Corps dam or reservoir, and that the Secretary may carry out any recommendations and activities under this subsection pursuant to existing law. The conference report also required the ASA to update a report on authorized purpose of Corps reservoirs, and include information on the most recent review of reservoir operations and a plan for future reviews. WRRDA 2014, like both H.R. 3080 and S. 601, also expanded many of the Corps existing programmatic authorities known as Continuing Authorities Programs (CAPs). Under the CAPs, the Corps studies and constructs projects of limited purpose and size without project specific congressional authorization. Subsequent Authorization Processes New Studies WRRDA 2014, like H.R. 3080 as shown in Table 7, required the Corps to solicit proposals from nonfederal entities for new studies and transmit qualifying studies to Congress in the Annual Report. Congressional authorization would be needed for the agency to proceed with the study. S. 601 (§4002) would have established a process for initiating new studies. New Project Authorizations and Modifications of Project Scope During House and Senate consideration, an ongoing topic of discussion was how to address projects anticipated to have completed study milestones (e.g., a Chief’s Reports, ASA transmission to Congress) in the next year or two. Both H.R. 3080 and S. 601 would have addressed these projects but neither bill would have authorized them directly. The conference report did not authorize projects without completed Chief’s Reports. Like H.R. 3080, the conference report required the ASA to submit completed feasibility reports and reports for project modifications to Congress in the Annual Report. Congressional authorization would be needed for the agency to proceed with construction, as shown in Table 7. As described in Table 4, the conference report (§1014), like H.R. 3080, may provide a mechanism for nonfederal entities to initiate work on a project with a completed feasibility study prior to a Chief’s Report. WRRDA 2014 (§7004) established expedited House procedures for the 113th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. A qualifying requirement for the expedited House procedure is a completed Chief’s Report. The qualifying requirements for the expedited Senate procedure included a completed Chief’s Report, the project to be carried out substantially in accordance with the plan 22 See footnote 2. Congressional Research Service 27 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions identified in the Chief’s Report and subject to conditions in that report, and an ASA recommendation to authorize construction transmitted to Congress. Project Cost Modifications and Project Modifications WRRDA 2014 authorized eight project cost modifications that had ASA recommendation letters transmitted to Congress. The conference report required that subsequent proposed cost modifications be submitted for congressional consideration through the Annual Report; they would require subsequent congressional authorization. This is similar to how H.R. 3080 would have addressed cost modifications; S. 601 would have established a process to allow, for three years, the ASA to proceed with projects requiring cost modifications if a submission certifying the need for the increase is submitted to Congress and if “amounts are appropriated to initiate or continue construction of the project in an appropriation or other Act.” Whether the expedited House and Senate procedures provided in the conference report (§7004) could be used for project cost modifications is unclear; traditionally project cost modifications are documented in reports of the Director of Civil Works, not Chief’s Reports. The reports of the Director of Civil Works are then transmitted by an ASA letter to Congress. The conference report included no comparable title to Title III of S. 601, Project Modifications. Additional Corps Project Costs May Require Cost Modifications The number of projects potentially requiring project cost modifications in the near future is unknown. No recent list of projects nearing their cost limits is available. The most recent publicly available list of potential project cost issues is from a Corps April 2012 memorandum which identified 32 projects with potential cost modifications that may or may not entail project scope modifications. According to a May 29, 2013, Corps memo, “at least one quarter of USACE Civil Works construction projects are not compliant with cost limits and schedule completions.” A May 30, 2013, Corps memo stated that “forty-four construction projects in the current Civil Works portfolio have compliance issues with Section 902 cost limit requirements.” Section 902 refers to §902 of WRDA 1986, as amended (33 U.S.C. 2280), which limits Corps project authorization of appropriations to the amount authorized in law (adjusted for inflation in construction and real estate costs) plus 20% of the original authorization of appropriations. Under current authorizations, the ASA must seek a congressional modification in a project’s authorization of appropriations for projects anticipated to exceed the adjusted 120% authorization of appropriations. Many of the factors contributing to project cost increases are persistent and apply broadly to many Corps projects. In May 2013, the Engineer Inspector General completed a report on an inspection of Corps §902 compliance actions; it stated: In some cases, poor decision, incomplete analysis or post authorization revisions to engineering standards affected the project delivery and led to larger than expected cost projections. In other instances, external pressures or influences forced changes to project scope. The cumulative effect of these internal and external factors was to increase project costs significantly and often led to projects having insufficient authority under 902. However, the factor with the greatest impact was the persistent funding shortfalls in the Civil Works budget. Funding shortfalls have extended the project delivery process and increased costs beyond anticipated levels for many USACE Civil Works projects Source: U.S. Army Corps of Engineers, Memorandum for Record: Corps Section 902 Cost Limit Policy Clarification and Applicability procedures - Notable Deficiency, Washington, DC, April 6, 2012, http://planning.usace.army.mil/toolbox/library.cfm?Option= Listing&Type=Memo&Search=Policy&Sort=Default.; U.S. Army Corps of Engineers, Memorandum for MSC Commanders: Civil Works Delegated Authority for Project Cost Management, Washington, DC, May 29, 2013, http://planning.usace.army.mil/toolbox/ library.cfm?Option=Listing&Type=Memo&Search=Policy&Sort=Default; Army Corps of Engineers, Memorandum for SEE Distribution: Engineer Inspector General (EIG) Section 902 Inspection Report Recommendations and Command Implementing Instructions, Washington, DC, May 30, 2013, http://planning.usace.army.mil/toolbox/library.cfm?Option=Listing&Type=Memo&Search=Policy&Sort=Default; U.S. Army Corps of Engineers, Engineer Inspector General, U.S. Army Corps of Engineers Engineer Inspector General Inspection Report: Inspection of Section 902 Cost Limit Requirements for Civil Works Projects, Washington, DC, May 2013, p. ii.) Congressional Research Service 28 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions For Further Reading CRS Report R41961, Army Corps Fiscal Challenges: Frequently Asked Questions, by (name reda cted) and (name redacted). Congressional Research Service 29 Table 6. Select Project Authorization Provisions Topic H.R. 3080 Authorization of New Construction or Project Scope Modification with Chief’s Reports §401 would have authorized 23 specifically listed projects with a total authorization of appropriations of $13.0 billion ($7.7 billion federal/$5.3 billion nonfederal). §1002 would have authorized the §7002 authorized 34 specifically listed projects with a total authorization of ASA to carry out any project with a appropriations of $25.65 billion ($15.64 billion in federal costs and $10.01 Chief’s Report transmitted by the billion in nonfederal costs). ASA after WRDA 2007 with a recommendation to construct. §1002 would have required projects be carried out in accordance with the project plan and subject to conditions described in its report. Authorization of Project Cost Modifications §402 would have authorized cost modifications to two previously authorized projects: Miami Harbor, FL navigation; and Little Calumet River, IN flood control. No comparable provision. §1003, which is discussed in Table 7, would have allowed the ASA to proceed with projects requiring cost modifications. §7003 authorized cost modifications to eight previously authorized projects. Existing Corps Reservoir Operations §133 would have required the ASA, within a year of enactment, assess the management practice, priorities, and authorized purposes of Corps reservoirs in arid regions to evaluate their effects on water supply during drought. §143 would have clarified that nothing in this act would have allowed the ASA to carry out any project for a purpose at a dam or reservoir not otherwise authorized as of the act’s date of enactment. §2014 would have authorized, with limitations, the ASA to improve the efficiency of dam operations and to maximize to the extent practicable both the authorized project purposes and other related benefits, including environmental protection and restoration, most water supply storage, hydropower generation, and flood risk reduction. §2014 would have restricted the activities to those that do not adversely impact any authorized purpose. §1045 required the ASA, within a year of enactment, to assess the management practice, priorities, and authorized purposes of Corps reservoirs in arid regions to evaluate their impacts on water supply during drought, and identify actions to be carried out within existing authorities to increase project flexibility for mitigating drought impacts. §1045 required that within 2 years, the ASA update a report on authorized purpose of Corps reservoirs, and include information on the most recent review of reservoir operations and a plan for future reviews. §1045 required GAO to audit previous Corps operations reviews, evaluate the plan for future operations reviews, and make recommendations for improving operations reviews. §1045 stated that nothing in the section changes the authorized purpose of a Corps dam or reservoir, and that the Secretary may carry out any recommendations and activities under this subsection pursuant to existing law. Continuing Authorities Program (CAPs) No comparable provision. H.R. 3080 had no provision focused on changing the CAPs; however, other provisions of the bill may have applied policy changes to the CAPs. §2003 would have increased project cost and program cost limits for certain CAPs. §2004 would have required the ASA publish prioritization criteria for CAPs and an annual CAP report. §1030 increased the project cost and/or program cost limits for the CAPs identified in §2003 of S. 601 and the Emergency Streambank and Shoreline Protection CAP (known as Section 14). §1030 required prioritization criteria and reporting similar to §2004 of S. 601. Source: CRS. CRS-30 S. 601 Conference Report/P.L. 113-121 Table 7. Select Provisions on Subsequent Authorizations of Studies, Projects, and Project Modifications Topic H.R. 3080 Waiving Need for Project Cost Modification §111would have allowed for the ASA to complete a construction project using funds contributed by a nonfederal entity (without opportunity for reimbursement) for projects that had exceeded 120% of their congressional authorized costs. §2059 would have authorized a provision similar to H.R. 3080. §1023 authorized a provision similar to H.R. 3080 and S. 601. New Project Construction §118 would have required that the Annual Report include completed feasibility reports (with the Chief’s Report if appropriate) for new Corps construction projects requiring congressional authorization. §1004 would have authorized procedures for expedited Senate consideration of bills authorizing projects that had been transmitted by the ASA to Congress through 2018. Senate EPW would have been required to report all such bills by January 31st of the second session of each Congress. If Senate EPW failed to act, the bills would have been discharged from the Committee and placed on the calendar of the Senate, with some exceptions. §7001 required an Annual Report similar to H.R. 3080. §7004 established expedited House procedures for the 113th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. A qualifying requirement for the expedited House procedure is a completed Chief’s Report. The qualifying requirements for the expedited Senate procedure include: a completed Chief’s Report, the project to be carried out substantially in accordance with the plan identified in the Chief’s Report and subject to conditions in that report, and an ASA recommendation to authorize construction transmitted to Congress after enactment. Project Cost Modifications §118 would have required that the Annual Report include proposed cost modifications to authorized Corps projects that had been identified by the ASA for congressional authorization. §1003 would have allowed the ASA for three years after enactment to modify the authorized project costs if (1) the ASA certified the necessity for exceeding the current authorization and submits the certification to Congress and (2) if, subsequent to the submission, amounts were appropriated to initiate or continue construction of the project in an appropriations or other Act. §7001 authorized a provision similar to H.R. 3080. CRS-31 S. 601 Conference Report/P.L. 113-121 Topic H.R. 3080 S. 601 Conference Report/P.L. 113-121 Project Scope Modifications §118 would have required that the Annual Report include scope modification studies identified by the ASA for congressional authorization. §1004 would have provided for expedited Senate consideration through 2018 of a bill authorizing projects transmitted by the ASA to Congress. §7001 authorized a provision similar to H.R. 3080. §7004 established expedited House procedures for the 113th Congress and expedited Senate procedures through 2018 for bills authorizing construction projects that meet specified criteria. Study §118 would have required that the Authorizations Annual Report include any new Corps feasibility study proposed by a nonfederal entity that would have required congressional authorization. §4002 would have allowed the ASA to initiate annually a limited number of new studies (of the ASA’s choosing consistent with criteria in §4002) for 3 years after enactment with an authorization of appropriations of $25 million annually. §4002 would have prohibited funding a new study unless “amounts are appropriated to initiate a study in an appropriations or other Act.” §7001 authorized a provision similar to H.R. 3080. Cost Share for Locally Preferred Flood Risk Management Projects §2055 would have authorized a provision similar to H.R.3080, with the exception that §2055 would have required that the federal share of the LPP be not less than the share of the national economic development plan. §1036 authorized a provision similar to S. 601. §121 would have required the ASA to build the locally preferred plan (LPP) if requested by the nonfederal entity if the LPP provided a higher level of protection than the project alternative authorized under this act, and the ASA determined that the LPP is technically feasible, environmentally acceptable, and benefits exceeded the cost. §121 would have required the additional cost attributable to the higher protection be paid by the nonfederal entity. Source: CRS. CRS-32 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions Investing in Navigation Harbors The Harbor Maintenance Trust Fund (HMTF) is used to cover the costs incurred by the Corps in operating and maintaining federally authorized harbors, principally the dredging of channels. The HMTF is supported by a tax on cargo moving through ports and cruise ship passengers (the Harbor Maintenance Tax, HMT). In recent years, annual HMTF expenditures (which require congressional appropriations typically as part of an Energy and Water Development Appropriations Act) have amounted to a little more than half of annual HMT collections and interest. Like H.R. 3080 and S. 601, the conference report sought to increase HMTF spending, but not at the expense of available funding for other Corps activities. Thus, increased HMTF spending is predicated on the condition that the Corps total budget increases by at least the same amount. WRRDA 2014 expanded the eligible uses of HMTF monies to dredging activity that is now paid by nonfederal sponsors (e.g., the dredging of berths by port authorities), but only at ports that generate more HMT revenue than they have received from the HMTF. The conference report adopted the provision in S. 601 that eliminated the 50% nonfederal cost share for the incremental cost of maintaining harbors at depths between 45 and 50 feet.23 Thus, the conference report could increase HMTF spending on harbors handling large volumes of cargo that in the past have made relatively little use of HMTF funds. The Administration objected to expanding the federal role in harbor maintenance to include activities that historically have not been a federal responsibility.24 An issue reflected in the legislation is how to prioritize harbor maintenance among ports that handle large amounts of cargo and those that do not. The conference report reserved specified portions of HMTF funding for harbors with less cargo or that have not been fully maintained in prior years. The conference report modified a provision in H.R. 3080 that required the Corps to provide a written response to a nonfederal interest seeking federal maintenance of a harbor. In addition to the dredging of berths and certain legacy-contaminated sediments, the conference report adopted language from S. 601 to allow “donor ports” and “energy transfer ports” to use appropriated funds for rebating HMT payments to shippers or for other dredging-related activity that otherwise is not a federal responsibility (see Table 8 for definitions). This could be especially appealing to U.S. ports that contend shippers favor nearby foreign ports to avoid payment of HMT. It appears that Seattle and Tacoma, WA, would qualify as “donor ports.”25 It appears that fourteen ports may qualify as “energy transfer ports” (five ports in Louisiana; four ports in Texas; 23 For a listing of harbor depths, useful in identifying which ports may benefit from this provision, see the following Army Corps report, http://www.iwr.usace.army.mil/Portals/70/docs/portswaterways/rpt/ June_20_U.S._Port_and_Inland_Waterways_Preparing_for_Post_Panamax_Vessels.pdf 24 Statement of Administration Policy, S. 601 – Water Resources Development Act of 2013, May 6, 2013; Statement of Administration Policy, H.R. 3080 – Water Resources Reform and Development Act of 2013, October 23, 2013. See also ASA’s December 2013 letter to conference managers (footnote 2). 25 Other ports that may qualify are certain ports in California, New York/New Jersey, Georgia, and Florida. These are additional states with at least two million twenty-foot equivalent unit (TEUs), which is a standard unit for cargo carrying capacity, of containerized cargo in 2011. The Army Corps has not published annual HMTF expenditure reports since FY2006, so the ratio of HMTF funding to HMT collections, a criterion for determining which ports are “donor ports,” is not known. Congressional Research Service 33 Water Resources Reform and Development Act of 2014: Comparison of Select Provisions plus Mobile, AL; New York/New Jersey; Baltimore, MD; Norfolk, VA; and Long Beach, CA).26 To qualify as a donor port, a port must generate substantially more HMT than it receives, but this is not the case for an energy transfer port. An energy transfer port is defined as a harbor handling more than 40 million tons of cargo of any type and at which energy products comprised more than 25% of this tonnage (the HMT is not assessed on export cargo). Inland Waterways Some waterways stakeholders have been frustrated with the pace of construction on inland navigation infrastructure and cost overruns at key projects. The Inland Waterways Trust Fund (IWTF), which is funded by user fees, pays for 50% of most of these activities (to match 50% of costs provided from the General Fund of the Treasury). The IWTF has a declining balance that appears to have limited waterway construction projects in recent years. One inland waterway construction project, the Olmsted Locks and Dam project, has received the majority of the inland waterways construction monies in recent years, while construction on other inland waterway projects has been postponed. The Olmsted project was originally authorized at a cost of $775 million (plus inflationary increases) but recently required an increase to its authorization (i.e., an increase to its appropriations ceiling). The FY2014 Continuing Appropriations Act, P.L. 113-46, increased the project’s authorization from $775 million to $2.92 billion. In an effort to expedite work on the Olmsted project and facilitate work on other inland waterways projects funded by the IWTF, WRRDA 2014 altered the IWTF cost-share requirement for the Olmsted project. Like S. 601 and H.R. 3080 the conference report decreased the required IWTF share of the project costs compared to current law. The conference report decreased the IWTF required portion of project costs from 50% to 15%. S. 601 would have eliminated the IWTF required cost-share and would have funded the Olmsted project entirely from the General Fund of the Treasury. H.R. 3080 would have reduced the IWTF cost-sharing requirement from 50% to 25%, as shown in Table 9. In a December 2013 ASA letter to the conferee managers, the Administration objected to proposed alterations to the Olmsted project’s cost sharing formula; however the [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%3AR43298. Public record. Not legal advice.