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WRDA 2004 Areas of Concern

Water Resources Development Act of 2004
Section by Section Analysis of Provisions Causing Concern

Sec. 1005. Corps of Engineers River Stewardship Commission.
EFFECT: This section establishes a 23 member, 2-year commission charged with investigating the Corps planning and river management operations, culminating in a report to Congress. The House and Senate majority and minority leaders are to appoint 5 members each, representing the public, environmental groups, hydropower, recreation, navigation, flood control, state governments including wildlife and natural resources agencies, Indian tribes and others. The other three members are the Administrators of EPA and Fish and Wildlife and the Assistant Secretary of the Army for Civil Works. $10 million is authorized for staff and expenses. The Commission is specifically directed to address the following issues:

1. Compliance with environmental laws (the Fish and Wildlife Coordination Act, the Endangered Species Act, NEPA and the Federal Water Pollution Control Act) in the design and operation of river management projects.

2. Compliance with cultural resources laws (National Historic Preservation Act, Archeological Resources Protection Act, Native American Graves and Repatriation Act, etc.) as well as reviewing the effectiveness of Corps/Indian consultations and recommending opportunities for tribal management agreements.

3. The quality and objectivity of scientific, economic and environmental analyses including the use of independent peer review and implementation of recommendations.

4. Coordination and cooperation between the Corps and Federal agencies (FWS), state agencies and Indian tribes on river management issues as well as the implementation of recommendations made by those groups.

5. Whether the Corps properly balances the multipurpose uses/interests of a river in conducting studies.

6. Whether river-planning laws should be amended.

7. Whether the river management functions of the Corps should be transferred from the Army to a Federal civilian agency.

The Commission can hold hearings as well as request information from Federal agencies. It will cease to exist once it submits its report, or if there is no report, 60 days after the report should have been submitted.

CONCERNS:
Even though the Corps has been vindicated of the “cooking the books” charge, the mission of this commission is to “investigate” as if there is wrongdoing.

There is no provision for technical or legal expertise required for appointment.

There is no coordination mechanism with the office of the Chief of Engineers.

There have been a number of recent studies and reviews that already address many of these issues, so much of the mission is duplication of efforts and a waste of taxpayer funds.

Recent judicial decisions as well have past decisions have already affirmed that the Corps is managing the river system in compliance with Congressional mandates.

The Commission chair has the broad right to appoint and terminate an Executive Director and other staff, as well as fix compensation.

The Assistant Secretary of the Army is barred from being chosen as Chairman or Vice Chairman of the Commission.

There is no oversight mechanism for this commission.

Sec. 1006. Improvement of water management at Corps of Engineers reservoirs.

EFFECT: The Corps may carry out measures to more effectively and efficiently meet the water resources needs of areas impacted by reservoirs through studies, reviews and improved operational plans, improved data collection and forecast models and conducting sediment studies and implementing needed measures.

Any revenues the Corps collects in connection with reservoirs for navigation, flood control or multi-purpose projects (recreation excepted) are to go into the Corps’ revolving fund for maintenance and operation of plant and equipment. (That fund was established in 1954.) The funds would then be distributed on a 80-20 split, with the District from which the funds are generated receiving 80% for defraying the costs of planning, operation, maintenance, replacements and upgrades of, and emergency expenditures for, Corps facilities in the District. The remaining 20% is to be available for the Corps to spend as needed on planning, O & M, replacements, and upgrades of, and emergency expenditures for Corps’ projects. The headquarters’ 20% is designed to be used to supplement areas in which there are shortfalls in the budget.)

The dedication of revenues to the revolving fund is a form of the “fix” needed to transfer Power Marketing Administration funds (already collected, but currently deposited into the general fund) to the Corps for O&M of hydroelectric facilities as envisioned by the President’s budget request. An additional $0.22 per kilowatt-hour fee is imposed on Power Marketing Administrators (except for the Bonneville Power Administrator) to further recoup the cost of operating and maintaining the Corps hydropower facilities from FY2005-2010.

On September 1, 2009, a report will be submitted to the appropriate House and Senate committees detailing the estimated cost of O&M for hydroelectric facilities and a new recommended reimbursement rate per kilowatt-hour.

CONCERNS:
Under existing statutes Power Marketing Administrations have authority to recover costs in power and transmission rates based upon a formula that is revised every year in consultation between the Corps and the PMA administrators to reflect actual projected costs of hydroelectric O&M needs. While this section directs that those funds be deposited in the Corps budget, their expenditure is not directly tied to the maintenance of hydroelectric facilities.

The additional kilowatt per hour fee—a tax according to power groups—is imposed with no provision for reduction in the current level of payment and is not tied directly to PMA costs.

PMAs would need specific authority to impose the $0.22 per kilowatt hour fee.

Generation is dependent on water available and could dip significantly below levels that would provide the recovery of adequate funding from the proposed 0.22 cents per kilowatt-hour fee.

Power customers and Power Administrators have no role in determining the level or use of funding for hydroelectric maintenance and upgrades.

The revenues envisioned would essentially be from hydropower as navigation and flood control contribute nothing and water supply and irrigation contributions are minuscule. This means hydropower would be subsidizing other missions.

It could also hurt the strong regional support for customer-funded improvements under existing legislation (Section 212 of WRDA 2000).

It is unclear what the intent of allowing reallocation of storage water would be.


Sec. 1008. Planning.

EFFECT: Water Resources feasibility studies will be expanded to assess whether a water resources project and each project increment are cost-effective, and whether the water resources project complies with local, State, and national laws, regulations, and public policies. This will include:

1. In collaboration with the Water Resources Planning Council (next section), revising planning guidelines and regulations to properly reflect project benefits and costs.

2. Changing the cost-benefit analyses to include:
Quantified and unquantified benefits and costs
Identifying areas of risk and uncertainty
An assessment of the credibility of the project construction schedule as it affects the estimated benefits and costs;

Identifying local, regional, and national economic costs and benefits

Identifying environmental costs and benefits, including the costs and benefits of protecting or degrading natural systems

Identifying social costs and benefits, including a risk analysis regarding potential loss of life that may result from flooding and storm damage

Identifying cultural and historical costs and benefits

Excluding from the estimate of benefits and costs any increase in direct Federal payments or subsidies

Excluding as a benefit any increase in direct Federal payments or subsidies as well as any project benefit attributable to any change in, or intensification of, land use arising from the draining, reduction, or elimination of wetlands

Applying a discount rate consistent with that used by other Federal agencies for water resources projects.

3. Specifying that the duration of feasibility studies may in no case be longer than three years.

GOOD POINTS:
The cost-benefit analysis is expanded to include both quantified and unquantified benefits for ALL projects of the Corps.

Local, regional and national economic costs and benefits will be included, as will environmental and social costs—more in line with the European model.

The Corps will have to develop models that accurately reflect the value of wetlands for environmental restoration and mitigation,
A time limit is given for feasibility studies.

CONCERNS:
This change is to be made in collaboration with the new Water Resources Planning Council, which as written, is problematic.

Excluding from the estimate of benefits and costs of any increase in direct Federal payments or subsidies harms farmers. Part of the Corps formulation counts increased farm subsides as a benefit. On the cost side, the exclusion of a potential increase in FEMA payments if a flood control or hurricane protection project is not constructed harms the cost-benefit ratio of those projects.

Excluding as a benefit any positive results from change in, or intensifying land use if it affects a wetland puts all projects with inland waterways, ports, levees or flood walls in danger. By their very nature, many waterway projects, most especially levees and flood walls, are constructed on land that can be considered a wetland. This provision would exclude all of the positive benefits that come from flood protection or port development if wetlands are affected. Also, the benefits for acreage that can be used for agricultural purposes after a levee or flood wall is constructed would also not be counted.

This appears to be an effort to provide grounds for litigation so that previously unsuccessful lawsuits can be refiled.

Sec. 1009. Water Resources Planning Council.

EFFECT: A permanent Water Resource Planning Council would be appointed by the Secretary of the Army within Civil Works to integrate planning policies and advise the Chief in addressing concerns that may arise regarding the integration of policy and science in decision-making. Its membership would consist of (1) Non-Federal interests from various water resource project purposes, (2) States resource agencies, (3) Department of Interior, (4) Department of Agriculture, and (5) Council on Environmental Quality. They are to report to Congress after two years and then every five years after that on which methods, models, and procedures they have approved for use, as well as benchmarks for effectiveness of the civil works planning program.

The duties include:
Providing technical and managerial assistance to district engineers for project planning, development, and implementation.

Providing external peer reviews of new major scientific, engineering, or economic methods, models or analyses.

Such other duties as prescribed by the Secretary.
Within that framework, the Council is supposed to:
(1) identify, review, and certify all critical methods, models and procedures used by the Corps as well as identifying other existing or new methods, models, or procedures;

(2) establish a systematic process and define criteria for evaluating and validating the effectiveness and efficiency of all methods, models, and procedures;

(3) develop and maintain a set of approved methods, models, and procedures to be applied to the water resources planning process across the Corps of Engineers;

(4) develop and maintain effective systems for technology transfer and support to provide state of the art skills and knowledge to the workforce;

(5) identify the discrete elements of studies and establish benchmarks for the resources required to implement elements to improve the timeliness and effectiveness of the water resources planning process;

(6) develop and maintain procedures for risk analysis for estimating project costs to ensure accurate cost forecasting and minimize cost overruns;

(7) assist the Corps of Engineers in accomplishing such improvements.

GOOD POINTS:
If staff is Corps employees, this essentially would provide for a center for planning expertise within the Corps.

Since the Secretary of the Army appoints the members of the Planning Council there is the possibility that reasonable technical expertise and collaboration from other agencies would be facilitated.

CONCERNS:
The Corps has already set up an Office of Water Policy to review planning procedures and models, etc.

The Council is given broad powers of decision-making, beyond a review and advisory capacity for the planning process, usurping the responsibility of the Chief of Engineers to manage the agency.

There is no mechanism for the Corps to interact with the Council, and the Chief is forced to accept their judgment – completely dismissing the integrity of a Chief’s Report and Corps expertise.

The Council is granted as much funding as necessary, although it is not specified from which accounts they would receive their funding.

Staff is not specified.

There are no limits on the size of the Council.

The Council is not directly accountable to anyone.

An outside group that provides periodic reviews of the planning processes and guidelines on an advisory basis would be preferable

There are constitutional concerns about the ability of non-federal interests to mandate actions for a Federal agency.

Sec. 1010. Independent reviews.

EFFECT: Prior to the submission to Congress of any project study or report required for authorization, the Inspector General of the Army is to convene an independent peer review panel of between 3 and 7 to (1) review each project study prepared for the project; (2) assess the adequacy of the economic, scientific, and environmental models; (3) address specific technical questions as directed by the Inspector General of the Army. The peer review panel has 180 days in which to provide their report and conclusions and the Corps must then respond. The Inspector General is to consult with the Institute for Water Resources, National Academy of Sciences, American Society of Civil Engineers, and other appropriate academic, scientific, and engineering organizations in developing candidates to serve on panels. Panelists must have necessary technical or scientific expertise, and have significant experience in the geographic area or in the type of ecological conditions in the area being reviewed.

CONCERNS:
The peer review process is AFTER the report or study has been finished, not concurrent, and delays a project being referred to Congress by at least six months.

Late peer review could involve reopening the entire project planning process.

There is no threshold on cost or complexity that would trigger a peer review.

This provision affects all projects.

It is unclear if this provision pertains to the official submission of the Chief’s Report by the Assistant Secretary, or to the draft Chief of Engineers’ report that is submitted to Congress. Currently, there are 23 draft Chief’s reports that are under review by the Administration.

The Inspector General of the Army rather than the Chief is the officer responsible for the technical adequacy of project studies, and supervision is imposed on the Chief from outside the agency.

There are no limits on the cost of the peer review.

There is no protection for project sponsors from cost sharing independent reviews.

Sec. 1011. Fish and Wildlife Miitigation.

EFFECTS: The following sections appear to apply to ANY water resources project with mitigation elements that had not started construction or had more than 50% of its land acquired for project construction before November 17, 1986.

1. Mitigation guidelines in general:
a. Any mitigation that is not physical construction needed for mitigation, including acquisitions of land or interests in land, must be undertaken or acquired BEFORE construction starts on a project or at the same time as the acquisition of land or interests in land for a project.

b. Concurrent Mitigation (for physical construction required for mitigation)

i. 100% of required on-site mitigation shall be done before 50% of a construction project is completed, and all required on-site mitigation is to be finished no later than the last day of construction of a project or separable element.

ii. If that is physically impracticable, sufficient funds are to be reserved or reprogrammed to insure that mitigation is completed no later than the end of the next fiscal year immediately following the last day of construction of a project or separable element.

iii. PED funds, construction funds and O&M funds will be available for carrying out mitigation.

2. Mitigation plans as part of project proposals
a. After November 17, 1986, the Secretary is not to select in any final environmental impact statement, record of decision, or general reauthorization report or submit any authorization proposal unless it has a specific plan to mitigate fish and wildlife losses or a determination that the project will have negligible adverse impacts on fish and wildlife.

b. Standards of Mitigation: This amends the standards for mitigation to mandate, at a minimum, acquiring and restoring the same number of acres of habitat that “fully replace the hydrologic and ecological functions and characteristics of each acre of habitat adversely affected by a project.”

i. Requires a specific mitigation plan for a water resources project with sufficient detail to permit a thorough evaluation of the plan’s likelihood to meet the success criteria.

ii. Calls for specific time-dependent success criteria to be prepared in consultation with the Fish and Wildlife Service.

iii. Requires a description of the land and interests in land that will be used in a real estate plan

iv. Requires a schedule for a) monitoring attempted mitigation implementation, b) evaluating the degree to which mitigation does or does not meet the success criteria in b, until the mitigation meets the success criteria.

v. Requires taking corrective action in a case in which mitigation efforts are not achieving the success criteria

c. Cost sharing – Monitoring is cost-shared in accordance with the original construction project for a maximum of 10 years and then is a 100% Federal responsibility.

3. Success requirements:
a. The U.S. Fish & Wildlife Service will be consulted annually on every water resources project that requires mitigation to determine whether the project is achieving or has achieved the success criteria in 1 (ii).

b. Begin corrective actions within 30 days if it is found that original mitigation efforts likely will not result in, or have not resulted in meeting the success criteria.

4. Mitigation Tracking
The Corps will have a record keeping system in place no later than 180 days after enactment for each project construction, operated or maintained and for each permit under Section 404. The database will include:

a. Quantity and type of wetland and other habitat types affected by a project

b. Quantity and type of mitigation required

c. How much mitigation has been completed and the status of monitoring for the mitigation

d. Information on impacts and mitigation

e. Organization by watershed, project, permit application and zipcode.

CONCERNS:
This is a litigation=no mitigation=no projects nightmare. “At a minimum”, “fully” replace and “characteristics” are vague concepts open to interpretation, and will inevitable require judicial intervention to interpret.

There is ambiguity on whether projects that have been constructed since1986 will have to be revisited to conform to the new provisions as written.

This appears to be an effort to provide grounds for litigation so that previously unsuccessful suits may be refiled.

There is no regard for current ecological science mitigation recommendations.

There is no regard for regional and local mitigation priorities.

Strict interpretations may require the replacement of marginal wetlands with marginal wetlands rather than enhanced acreage.

In-kind replacement would unnecessarily burden urban flood control projects.

The specificity required in a Real Estate plan will inevitably lead to higher land acquisition costs.

The Fish and Wildlife Service has dual responsibility with the Corps to development what the success criteria will be, with no provisions for inter-agency procedures such as dispute resolution or primacy of responsibility.

A “success criteria” is an extremely vague concept.

The Fish and Wildlife Service will be reviewing every Corps project with mitigation each year—a financial burden and an abrogation of Corps’ responsibility.

Links project construction timetable to mitigation timetable.

A mitigation tracking system of this magnitude will be extremely burdensome and could be prohibitively expensive.

Section 404 permits are included with civil works projects.

Sec. 3401. Shore protection and beach nourishment projects.

EFFECT: This section revises the Corps of Engineers planning guidelines, regulations and circulars for beach nourishment projects through the establishment of an advisory committee with independent scientific and technical expertise. The revisions to the planning guidelines must comply with the following criteria:

1. Revisions must ensure that that beach replenishment projects do not harm reefs or other habitats identified as essential fish habitat or habitat areas of particular concern under the Sustainable Fisheries Act.

2. Require the consideration of non-structural alternatives to large dredge and fill activities, including sand bypass systems, relocation, and elevation.

3. Establish standards for the timing of beach replenishment projects that are designed to avoid, and subsequently minimize, impacts to wildlife and habitat quality.

4. Establish standards that ensure that sand deposited on replenished beaches features compatible grain size, shell content, and other geological characteristics of a natural beach.

5. Ensure that those [sand] standards are not lowered as the availability of compatible sand decreases.

6. Require long-term monitoring of turbidity to quantify the impacts to primary production in areas with coral reefs, and secondary production in areas with game fish.

7. Establish buffer distances between dredge sites and reefs that are sufficient to eliminate further reef damage from operator or design failures.

8. Develop programmatic environmental impact statements to establish standards for coastal regions subject to continuous levels of large dredge and fill activity.

9. Revise public notice and comment procedures to ensure adequate time for interagency and public comments, including the comments of Federal fishery management councils.

10. Establish a standardized interagency database that collects, distributes, and archives fundamental pre- and post-project information to guide future planning and management.

CONCERNS:
• The beach nourishment program is the only Corps program to be singled out for revision of its guidelines, casting a shadow of “wrong-doing” over a very successful and widely-supported program.

• Without any public testimony, discussion, or any evidence of need, the advisory committee is directed to focus on ten specific topics related to beach projects.

• Many of the specific policies the advisory
committee is required to develop already exist either in Corps regulations and procedures or in laws such as NEPA, the Fish and Wildlife Coordination Act and various site-specific state and local laws and ordinances. Many of the requirements (such as considering non-structural measures and minimizing impacts to important habitat) are already mandated as part of the Corps feasibility study process and comply with NEPA and other laws and policies. Further, several of the requirements are quite sensitive to site- or state- specific conditions and cannot be dealt with as a one-size-fits-all policy. Included in this site specific category are: creating buffers from reefs, sand standards, and monitoring requirements.

• There is no provision for paying for the costs of this committee, which is one of several committees or commissions created in the bill.

• The decisions of the advisory committee would apply to all existing draft feasibility studies and draft re-evaluation reports that have not yet been issued. This means that studies that have been produced under one set of procedures over a period of several years will have to be redone with the revised regulations, guidelines, and circulars.

• Nothing in the provision requires that advisory committee members have water resources planning expertise, nor does the provision include a representative of the Corps of Engineers.

• The Secretary of the Army is to use the “notice and public comment” provisions of 5 USC 551 to issue new planning regulations, guidelines and circulars. These provisions currently apply to no other similar Corps documents.

Sec. 3402. Regional Sediment Management.

EFFECT: This section establishes a new regional sediment management authority for the Corps. Regional sediment management (RSM) is a system-based approach that takes an integrated or holistic view of coastal, estuary, and river sediments in a region in planning water resource projects to achieve balanced and sustainable solutions to sediment-related needs. In conjunction with authorized navigation projects, the Corps may carry out projects for the following purposes:

1. The protection, restoration, and creation of aquatic and ecologically related habitats, including wetlands.

2. The transport and placement of suitable dredged material at locations for use in the construction, repair, or rehabilitation of projects associated with navigation, flood damage reduction, hydroelectric power, municipal and industrial water supply, agricultural water supply, recreation, hurricane and storm damage reduction, aquatic plant control, and environmental protection and restoration.

CONCERNS:
• This section limits the use of RSM only to instances where there is a federally-authorized navigation project with dredged sand.

• RSM should not be limited to just sand and should instead explore all valuable sediment management options. This may include sediments from lagoons, estuaries, behind dams, and wherever else it might be applicable. In addition, it can accumulate in channels that are not federally-authorized navigation projects.

• The section does not identify the cost-sharing for project construction.

July 15, 2004
National Waterways Alliance

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