Order Code IB10120
CRS Issue Brief for Congress
Received through the CRS Web

Army Corps of Engineers Civil Works Program:
Issues for Congress
Updated May 21, 2003
Nicole T. Carter and Pervaze A. Sheikh
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Appropriations and Budget Request
Authorizations and WRDA
Project Development Reform
Operational Changes
River Management
Ecosystem Restoration
LEGISLATION
FOR ADDITIONAL READING

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Army Corps of Engineers Civil Works Program:
Issues for Congress
SUMMARY
The 108th Congress is likely to address
on a WRDA in 2002. No bills aimed at re-
ongoing issues related to the civil works
forming Corps project development have been
program of the U.S. Army Corps of Engineers
introduced during the 108th Congress, but a
(Corps). Under civil works, the Corps primar-
House Corps Reform Caucus has been reinsti-
ily plans, constructs, and operates water re-
tuted.
sources facilities for the nation, such as flood
control, navigation, and ecosystem restoration
Operational Changes. The Bush Ad-
projects.
ministration has undertaken two initiatives
that may change Corps operations. One is
Appropriations and Budget Requests.
aimed primarily at increasing competition
Funding for the civil works program has often
between public and private sources of services
been contentious between the Administration
for federal agencies. The other is an Army-
and Congress, with appropriations typically
wide effort to find ways to focus on its core
providing more funding than was requested.
war-fighting competencies that encompasses
The FY2004 budget request would cut civil
a review of the agency’s civil and military
works spending by 9% and reduce federal
activities.
outlays by expanding the use of two trust
funds.
River Management. Widespread droug-
ht conditions in recent years have raised some
Authorizations and WRDA. Congress
fundamental questions about Corps manage-
typically authorizes Corps projects and makes
ment of the nation’s rivers, particularly the
policy changes as part of a biennial consider-
Missouri River. Questions include whether
ation of a Water Resources Development Act
some river uses should take precedence over
(WRDA). The most recent WRDA was
others and if the current institutional arrange-
enacted in 2000. A WRDA was reported in
ments for river management are appropriate.
the House in 2002, but no vote was taken. It
In this context, both the annual and long-term
appears that the House Transportation and
operations of the Missouri River are likely to
Infrastructure Subcommittee on Water Re-
be debated during the 108th Congress.
sources and Environment will pursue a
WRDA in mid-2003. However, the Senate
Ecosystem Restoration. During the last
Environment and Public Works Subcommittee
decade, Congress has expanded Corps in-
on Transportation and Infrastructure appears
volvement in ecosystem restoration. The
to have given priority to reauthorizing the
Corps plays a significant coordination role in
Transportation Equity Act and has indicated it
restoring the Florida Everglades. Implementa-
is unlikely to consider a WRDA before late
tion problems with Everglades restoration
2003.
have raised concerns about the feasibility of
such efforts and the proper federal role. More
Project Development Reform. Conflict
restoration projects with Corps participation
among Members of the 107th Congress and
are being planned and may be proposed
other interested parties over changing the way
during the 108th Congress.
the Corps evaluates and undertakes projects
reportedly influenced the decision not to vote
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MOST RECENT DEVELOPMENTS
On April 22, 2003, the Corps and the U.S. Fish and Wildlife Service (FWS) announced
a negotiated agreement on an operating plan for the Missouri River mainstem dams for 2003.
In response to the plan, the Attorney General of North Dakota sued the Corps in the U.S.
District Court in Bismark. On April 29, the court ordered the Corps to reduce scheduled
releases from Lake Sakakawea by 12% with the aim of protecting its sport fishing industry.
On April 9 following an April 1 nomination hearing, the Senate Committee on
Environment and Public Works favorably reported on the nomination of John Paul Woodley
for Assistant Secretary of the Army for Civil Works. Several Members of Congress have
placed holds on floor consideration of the nomination.1
A total of three hearings by committees of both chambers have been held on the
agency’s civil works budget for FY2004. Another recent Corps-related hearings was on the
science of the Florida Everglades Restoration held by a House Appropriations Subcommittee
on Interior and Related Agencies. A hearing that examined the use of independent peer
review by various agencies including the Corps was held on March 5 by the House
Transportation and Infrastructure Subcommittee on Water Resources and Environment.
Title I, Division D of P.L. 108-7, the Consolidated Appropriations Resolution for
FY2003, has several controversial provisions involving the Corps. Issues raised included
limiting attempts to study changing the Corps’ civil works responsibilities and operations,
Missouri River management for this drought year, and funding for Devils Lake (ND) and the
Yazoo (MS) Basin Backwater Plant.
BACKGROUND AND ANALYSIS
The Corps is a unique federal agency located in the Department of Defense with
military and civilian responsibilities; it is staffed predominantly by civilians. Through its
military program, the Corps provides engineering, construction, and environmental
management services to the Army, Air Force, government agencies, and foreign
governments. The Corps military program is currently active in restoring the capability for
oil production, oil refining, and gas processing, as well as other activities, in Iraq.2 This
report focuses not on the military mission but on the congressional issues related to the Corps
civil works program.
At the direction of Congress, the Corps plans, builds, operates, and maintains a wide
range of water resources facilities under its civil works program. The Corps’ oldest civil
1 For background information on holds in the Senate, see CRS Report 98-712GOV, “Holds” in the
Senate.
2 More information on the Corps military program and its activities in Iraq are available,
r e s p e c t i v e l y , a t [ h t t p : / / w w w . u s a c e . a r m y . m i l / m i l i t a r y . h t m l ] a n d
[http://www.hq.usace.army.mil/cepa/iraq/iraq.htm].
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responsibilities are creating navigable channels and controlling floods. During the last
decade, Congress has increased Corps responsibilities in the areas of ecosystem restoration,
environmental infrastructure, and other non-traditional activities, such as disaster relief and
remediation of formerly used nuclear sites. The economic and environmental impacts of
Corps projects can be significant locally and regionally, and at times are quite controversial.
Appropriations and Budget Request. The civil works budget of the Corps
consists primarily of funding for the planning, construction, and maintenance of specific
projects; appropriations are made as part of the Energy and Water Development
Appropriations bills. Funding for Corps civil works has often been a contentious issue
between the Administration and Congress, with appropriations typically providing more
funding than the Administration has requested, regardless of which political party controls
the White House and Congress. The FY2003 bill followed suit: at $4.6 billion, it was $457
million (11%) above the requested amount. For FY2004, the President requested $4.19
billion, a decrease of $436 million (9%) from FY2003.
At hearings on the Corps FY2004 budget, some Members of Congress expressed their
displeasure with the Administration’s proposed budget. On March 26, 2003, the House
Appropriations Subcommittee on Energy and Water Development held a hearing on the
Corps civil works budget for FY2004. The Senate Appropriations Subcommittee on Energy
and Water Development on March 5, 2003, held a hearing on the same subject. The House
Transportation and Infrastructure Subcommittee on Water Resources and Environment also
held a hearing on the Corps FY2004 budget on February 27, 2003.
The President’s FY2004 request is contentious because not only would it reduce the
civil works budget but also it contains legislative proposals for decreasing federal outlays by
expanding the use of the Inland Waterways Trust Fund (IWTF) and the Harbor Maintenance
Trust Fund (HMTF). IWTF monies derive from a twenty cents per gallon fuel tax imposed
on vessels engaged in commercial waterway transportation, plus investment interest. HMTF
monies derive from receipts of a 0.125% ad valorem (i.e., percent of value) tax imposed upon
commercial users of ports.3 The IWTF and HMTF have built up authorized, unappropriated
balances since the early 1990s. These trust funds require annual appropriation by Congress.
Spending of the trust funds is considered part of the Corps budget and, therefore, is subject
to the congressional budget ceiling for energy and water development appropriations. The
Administration proposes enacting the changes to the trust funds through the appropriations
process for FY2004. To make the changes permanent, an authorization would typically be
sought through the next Water Resources Development Act (WRDA).
The Administration proposes expanding the use of the IWTF to include operation and
maintenance (O&M) of the inland waterway system, which historically has been paid with
appropriations of general funds. The IWTF fund has been restricted to funding one-half of
construction and major rehabilitation, with money from the trust fund matched by general
funds appropriated by Congress. Under the Administration’s proposal, the IWTF would
finance 25% of the O&M cost of eight waterways that have averaged annually more than five
billion ton-miles of traffic over the past five years, and 50% of the O&M cost for the
3 For more information on the HMTF and the tax supporting it, see CRS Report RL31264, Harbor
Maintenance Funding.
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remaining 20 waterways in the inland and intracoastal waterway system. The fund was
originally authorized under the Inland Waterways Revenue Act of 1978 (P.L. 95-502). The
Administration proposes increasing the amount spent from the trust fund from $104 million
in FY2002 and an estimated $84 million in FY2003 to $256 million in FY2004 — $110
million for construction and $146 million for O&M. According to the President’s FY2004
budget documents, the increased withdrawal would reduce the IWTF balance from an
estimated $433 million at the end of FY2003 to $287 million at the end of FY2004. The
Inland Waterways Users Board — an 11-member industry advisory committee established
by WRDA 1986 (P.L. 99-662) — argues that the IWTF’s growing balance is not due to a
lack of needed construction but results from what it believes are insufficient appropriations
by the federal government for waterway construction projects.4 The Board calculates that
the Administration’s proposal would empty the fund in three years, if current collections are
maintained, and it expresses concerns that this proposal would lead to a dramatic increase
in the fuel tax.
The Administration also proposes expanding the use of the Harbor Maintenance Trust
Fund to cover all federal costs associated with coastal port and channel construction. Use
of the HMTF historically has been limited to financing 100% of harbor O&M and major
rehabilitation costs. Under the Administration’s proposal, the HMTF would finance all
federal costs associated with the construction of coastal ports and channels. Federal
responsibility for harbor construction projects varies from 50-90%, with local responsibility
increasing with the harbor’s depth.5 The fund was authorized in WRDA 1986. The
Administration’s proposal would increase the use of the trust fund from $653 million in
FY2002 and an estimated $769 million in FY2003 to $826 million in FY2004 — $212
million for construction and $600 million for O&M. Port and river trade groups responded
quickly to the FY2004 budget request with criticisms that the Administration was raiding
these funds for an unprecedented use of the money that had not been endorsed by the users
paying the fees. They also expressed concern about the impact of this expansion on O&M
spending. One of their primary arguments against the expanded use of the HMTF is that the
federal government would be covering all of its fiscal responsibilities for harbors through a
trust fund financed by users even though harbors provide national benefits. They argue that
the HMTF’s growing balance is not the result of a lack of needed maintenance but the result
of insufficient appropriations from the HMTF for maintenance. The increased withdrawal
would not cause the HMTF balance to drop, since revenues are expected to be $880 million
in FY2004.
Another change proposed by the Administration in its FY2004 budget request is direct
funding of hydropower maintenance activities by three power marketing administrations
(PMAs), which are federally-owned electric utilities. The proposal is listed in the Corps
budget; however, the related legislative proposal is set out as part of the Department of
Energy’s budget because PMAs are part of the Department of Energy. Under the proposal,
PMAs would pay the Corps at the beginning of the fiscal year (as opposed to the current
4 Inland Waterways Users Board, 17th Annual Report to the Secretary of the Army and the United
States Congress with Appendices (Alexandria, VA: February 2003), available at
[http://www.iwr.usace.army.mil/usersboard/UBAR2003final.pdf].
5 For information on harbor cost-sharing and cost-sharing of other Corps activities, see CRS Report
RS20866, The Civil Works Program of the Army Corps of Engineers: A Primer.
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practice of paying at the end) for planned hydropower operation and maintenance expenses.
This process is similar to the process currently used by the Bonneville Power Administration.
A similar proposal was made by the Administration for FY2003 but was not enacted.
Authorizations and WRDA. Congress typically authorizes Corps projects as part
of a biennial consideration of a Water Resources Development Act (WRDA). The trend in
the last decade has been to authorize projects earlier in the development and review process
than in the past. Congress might authorize a project following a review by the Assistant
Secretary of the Army for Civil Works and the Executive Office of the President, Office of
Management and Budget (OMB) and a favorable Chief of Engineers report; on the basis of
a favorable Chief’s report without senior administrative review; or contingent on a favorable
Chief’s report being completed within a year.6 Most projects authorized since WRDA 1996
have not undergone senior administrative or OMB review prior to receiving congressional
authorization.
Contingent authorization, authorization prior to OMB review, and another practice —
authorization in appropriations bills — have been criticized by some Members of Congress
and Corps critics. The critics contend that contingent authorization rushes projects through
critical stages of the development process and that congressional decisions are made without
basic project information. They also argue that authorizations prior to senior review by the
Administration result in insufficient review from a national perspective. Under Executive
Order 12322, OMB is required to review the Chief’s report for consistency with the policy
and programs of the President, the principles guiding federal water projects, laws, and
regulations. Some Members of Congress and Corps critics view authorizations in
appropriation bills as circumventing the WRDA process.
There also has been criticism regarding the type of projects authorized in recent
WRDAs. Local sponsors of navigation and flood control projects fear that the Corps’
growing involvement in ecosystem restoration and other new responsibilities detracts from
the agency’s more traditional missions. Those supporting Corps involvement often assert
that the Corps is redressing harm caused by its earlier projects and that the Corps has unique
capabilities to perform this work. The President’s FY2004 budget request classifies aquatic
ecosystem restoration as a main mission of the Corps. During the 108th Congress, more
ecosystem restoration projects will likely be proposed for authorization (see Ecosystem
Restoration). “Environmental infrastructure” (i.e., projects for municipal water supply and
wastewater treatment facilities and surface water resource protection and development not
necessarily associated with other Corps projects) is another category of projects recently
added to Corps activities. Beginning with authorizations in WRDA 1992 (P.L. 102-580),
Congress has authorized more than 200 environmental infrastructure projects and has
provided appropriations for some. The President’s FY2004 budget request includes no
funding for environmental infrastructure projects.
6 Authorizations contingent on a Chief’s report have become a common practice as seen by the last
three WRDAs. At the time of the passage of the most recent WRDAs, a final Chief’s report was not
available for 28 of the 30 projects authorized in §101, Project Authorizations, of WRDA 2000
(P.L.106-541), 15 of the 45 projects authorized in §101 of WRDA 1999 (P.L.106-53), and 13 of the
31 projects authorized in §101 of WRDA 1996 (P.L. 104-303).
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If, and how, the next WRDA may address these issues is yet to be determined. The last
WRDA enacted was in 2000. A WRDA was reported by the House Committee on
Transportation and Infrastructure in 2002 (H.R. 5428, H.Rept. 107-717), but no floor action
was taken. No related Senate bills were introduced. It appears that the House Transportation
and Infrastructure Subcommittee on Water Resources and Environment will pursue a WRDA
in mid-2003. However, the Senate Environment and Public Works Subcommittee on
Transportation and Infrastructure appears to have established as its first priority for 2003
reauthorization of the Transportation Equity Act, indicating that consideration of WRDA is
unlikely until late 2003 or early 2004.
Project Development Reform. Criticism of Corps project development has been
raised for decades, particularly since the growth of the environmental opposition to large
water resources development projects in the 1970s. Although Congress passed greater local
cost-sharing requirements in 1986, it has enacted few changes to how the Corps develops and
evaluates projects.
In response to two events in 2000, support for changing how the Corps undertakes and
reviews projects has gained some momentum. First, The Washington Post published a series
of articles raising questions about the integrity of the Corps planning process. Second, a
Corps economist went public as a “whistleblower” contending that Corps officials
manipulated a benefit-cost analysis to support expensive lock improvements on the Upper
Mississippi River-Illinois Waterway. Although some Members support Corps reform, other
Members along with agriculture and navigation industries are satisfied with existing practices
at the agency.
The Bush Administration has generally approached reform as a fiscal issue linked
primarily to the agency’s growing construction backlog. Over the longer term, many more
projects have received authorization than appropriations, resulting in a backlog consisting
of over 500 “active” authorized projects with a federal cost of approximately $44 billion.7
To reduce the construction backlog, the President’s FY2004 budget request focuses the
agency’s civil works activities on specific projects within the agency’s water resources
missions of navigation, flood control, and environmental restoration. During the 1990s,
Congress continued biennial authorizations of navigation and flood control projects and
began authorizing more environmental activities and non-traditional projects.
In contrast, legislative proposals during the 107th and 106th Congresses consisted less
of fiscal reforms and more of improved project development processes and review
procedures. In 2003, Corps officials testified on how the agency is “transforming” itself in
response to the criticism levied against its practices. Corps officials defended the integrity
of the agency’s review process and detailed recent efforts to further strengthen it. For
example, the Administration’s FY2004 budget request includes $3 million for a peer review
panel to examine selected projects and $2 million for ex post facto studies of 15 to 25
completed projects to compare the estimated and actual project costs and benefits.
7 Active projects are those that have been recently funded, evaluated by the Corps as economically
justified, and are supported by a local sponsor; an additional 800 authorized projects are considered
inactive.
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Notwithstanding the measures already taken and those planned by the Administration,
many critics maintain that more fundamental changes are necessary. Bills proposed in
previous Congresses demonstrate both the support of some Members of Congress for Corps
reform and the controversial nature of such measures. Interest in Corps reform led to the
introduction of six bills during the 107th Congress and three bills during the 106th Congress.8
However, no bills significantly reforming Corps procedures have been enacted. No Corps
reform bills have been introduced during the 108th Congress, but a House Corps Reform
Caucus has been reinstituted. Supporters of reform view the next WRDA as a possible
vehicle for reform. Corps reform could also be considered as part of the FY2004 Energy
and Water Development Appropriations bill.
Operational Changes. There are currently two initiatives to change the operation
of the Corps civil works program: the government-wide President’s Management Agenda
and an Army initiative referred to as the Third Wave. Neither initiative specifically targets
the Corps, but both encompass Corps activities. The President’s Management Agenda was
undertaken by the Bush Administration as part of a movement toward more entrepreneurial
government; one of the five components of the President’s Management Agenda is a
competitive sourcing initiative. The President’s Management Agenda directed executive
agencies to competitively source commercial activities in order to produce quality services
at a reasonable cost through efficient and effective competition between public and private
sources. The Administration mandated for FY2002 and FY2003 the competition of 5% and
10%, respectively, of the positions performing commercial activities at agencies, including
the Corps.9
8 During the 107th Congress, bills in both chambers — H.R. 1310, H.R. 2353, S. 646, S. 1987, and
S. 2963 — would have changed how the Corps managed its civil works program. A related bill —
S. 3036 — proposed a commission to assess the agency’s performance. Corps reform bills were also
introduced during the 106th Congress — H.R. 4879, H.R. 5459, and S. 2309. Although none of these
bills passed, the 106th Congress did enact some provisions related to Corps reform in Title II of
WRDA 2000. These provisions were essentially scaled-down versions of reforms proposed in H.R.
4879. Section 222 of the WRDA 2000 required procedures to enhance public participation in
feasibility studies, and to include, if appropriate, a stakeholder advisory group. Section 223 required
the Corps to monitor the economic and environmental results of up to five projects for at least 12
years. Section 216 directed the National Academy of Sciences to study “state of the art” project
analysis methods and to compare them to the methods employed by the Corps and the practicality
and efficacy of “independent peer review of feasibility reports.” In response to this mandate, the
Academy’s National Research Council July 2002 report Review Procedures for Water Resources
Planning identified a need for increased independence from the Corps of the reviewers and the
review process. Section 224 called for a study by the General Accounting Office (GAO) on the
effectiveness of concurrent mitigation for fish and wildlife impacts. In the May 2002 GAO report,
US Army Corps of Engineers: Scientific Panel’s Assessment of Fish and Wildlife Mitigation
Guidance (GAO-02-574), most of the expert panelists rated the overall quality of the Corps’
mitigation program as moderate or good while also making numerous suggestions for improvement.
9 The Federal Activities Inventory Reform (FAIR) Act (P.L. 105-270) requires agencies to submit
inventories of their commercial activities to OMB. The FAIR Act inventories are lists compiled by
agencies of the commercial activities performed by their employees. A “commercial activity” is a
not inherently governmental good or service that can be obtained from the private sector.
Photography, data processing, and management support services are examples of categories of
commercial activities. In contrast, an inherently governmental activity intimately relates to the
(continued...)
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The Army’s Third Wave initiative is broader than the President’s Management Agenda.
The Third Wave is a search for ways to improve the Army’s operations by focusing its
energies on its core war-fighting competencies. This includes a review of all positions and
functions (i.e., entire areas of responsibilities and missions, such as wetlands regulation) that
are not part of the Army’s core military competencies. Actions that can be considered under
the Third Wave for non-core functions and positions include competitive sourcing,
privatization, transfer of responsibilities to other agencies, and divestiture. A significant
portion of the Corps workforce was included in the first phase of the Third Wave because
much of the water resources work performed by the Corps is not considered essential to the
Army’s war-fighting competencies.
Section 109 of Title I, Division D of P.L. 108-7, the Consolidated Appropriations
Resolution for FY2003, prohibits using funds to study or implement any “plans privatizing,
divesting or transferring of any Civil Works missions, functions, or responsibilities” without
specific direction by Congress. To comply, the Army is limiting its Third Wave review of
the Corps during FY2003 to competitive sourcing, which it distinguishes from privatizing.
No implementation actions under the Third Wave are anticipated to be undertaken before
FY2004. Implementation is expected to begin in FY2004 and continue through FY2009.
The Army will likely need congressional approval for many of the actions that it may propose
as part of the Third Wave.
River Management. A fourth year of moderate-to-extreme drought in the Missouri
River basin has contributed to an ongoing debate on the operations of the basin’s dams. This
debate raises some fundamental questions about water resources management in the nation,
such as whether some river uses should take precedence over others and if the current
institutional arrangements for river management are adequate and appropriate. The timing
and the quantity of water releases affect uses of the river such as barge traffic, threatened and
endangered species protection, water supply, and river recreation. Differing opinions on how
to best manage the Missouri River during a drought have drawn attention to the operating
plan for 2003 and the ongoing revision of the Master Manual, which guides the operation of
the Missouri River’s mainstem dams. The manual has been in revision for 14 years as the
Corps has struggled with how to satisfy all of the authorized purposes of the Missouri River
mainstem dams: flood control, hydropower, water supply, water quality, irrigation,
9 (...continued)
public interest, thus mandating performance by government employees. This includes activities that
require the exercise of discretion in applying government authority or the making of value
judgments, such as planning and decision making. (Executive Office of the President, Office of
Management and Budget, “Policy Letter on Inherently Governmental Functions,” Federal Register,
vol. 57, no. 190, September 30, 1992, pp. 45100.) More information is available in CRS Report
RL31024, The Federal Activities Inventory Reform Act and Circular A-76. The current definitions
of activities for Corps civil works in the FY2000 inventory are available at
[http://www.asamra.army.pentagon.mil/fair/USACEFunctionsCodeDictionaryOMBVersion.htm].
There are a total of 23,335 positions at the Corps that are commercial, according to the FAIR Act
inventories from 2001, which are available at [http://web.lmi.org/fairnet/home.html]. Of these
23,335, there are 16,525 positions classified as requiring competitive sourcing under Circular A-76
and 6,810 positions that can be directly outsourced because price is not the primary concern. It
appears that the Corps is looking to refine its FAIR Act inventories to include 20,659 (not 23,335)
commercial positions (Corps presentation from August 2002, available at
[http://www.hq.usace.army.mil/cp18conf/8-27-02/Powerpoint/Ray’s%20CP-18%20Aug%2002.ppt]).
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navigation, recreation, and fish and wildlife protection. The congressional authorizations of
these dams generally do not stipulate priority purposes or a hierarchy among purposes.
Members of Congress have tried to provide direction on Missouri River management to the
Corps through the appropriations process in the past three years.
After collaborative deliberation between the Corps and the Fish and Wildlife Service
ending in late April 2003, the agencies announced an agreement that establishes a release
schedule for the Missouri River mainstem dams for 2003 that meets minimum service
navigation targets while aiming to protect two threatened and endangered bird species during
their May 1 through August 15 nesting season. This is a critical period for federally listed
endangered bird species and for the river transportation industry. The deliberations and
resulting release regime represent a negotiated response to the competing needs of species
protection, navigation, and water conservation that will be applied exclusively during this
drought year. The negotiated agreement does not affect the Corps’ earlier announcements
that it will provide only minimum navigation service (a 1-foot shallower channel than under
full service) on the Missouri River and that it will reduce the navigation season by six days
in November, subject to a July 1 storage check.
In response to the operating plan, the Attorney General of North Dakota sued the Corps
in the U.S. District Court in Bismark for harming the fisheries of Lake Sakakawea behind
Garrison Dam by drawing down the reservoir to satisfy lower basin water demands for
navigation. On April 29, the court ordered the Corps to reduce the scheduled releases from
Lake Sakakawea by 12%. North Dakota officials hope this will preserve the lake’s sport
fishing industry. The Governor of North Dakota has also asked the Army Inspector General
to investigate if the Corps decisions on the 2003 operating plan violates the agency’s own
policies for managing the Missouri River.
Lawsuits on the management of the Missouri River are being used not only to legally
challenge the specifics of operations of that river but also national river management
practices. Many view the conflict in the Missouri River as a harbinger of increasing
competition for water in basins across the nation and as a testing ground for legal action to
induce changes in river management policy. Particularly notable is a lawsuit filed in
February 2003 by a coalition of ten national and regional conservation organizations in the
U.S. District Court for the District of Columbia against the Corps and the FWS. The lawsuit
challenges actions of the agencies regarding operations of the mainstem dams and the
adverse impacts of operations on threatened and endangered species, citing operations during
the last 13 years while noting particular grievances with recent operations. The coalition
seeks a court order for the Corps to operate according to a 2000 FWS Biological Opinion
(under the Endangered Species Act) that stipulates a hydrologic regime that more closely
mimics natural flows.
Current attention to Missouri River management has raised interest in reconsidering
institutional arrangements. With the growing recognition of the multiple uses of rivers and
interest in ecosystem restoration, more consensus-based institutional arrangements are being
tested, such as in the Florida Everglades. (See Ecosystem Restoration for more
information on the Everglades.) Missouri River Ecosystem: Exploring the Prospects for
Recovery, a January 2002 report by the National Research Council, describes how the states
and federal government have been unable to devise an effective basin-wide water governance
structure, resulting in the Missouri River being managed almost exclusively by the Corps of
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Engineers. A conclusion of the report is that the lack of a well-structured, flexible, and
updated mechanism for coordinating current interests in the basin is a barrier to avoiding
conflict and improving dam operations and environmental conditions. Senator Tom Daschle
has indicated that he may introduce legislation that proposes to remove Missouri River
management responsibilities from the Corps.10
Ecosystem Restoration. The Corps has been widely criticized for the
environmental harm its water resources projects may cause to sensitive ecosystems, such as
the Florida Everglades and Coastal Louisiana. To address this criticism, the Corps has
adopted environmental operating principles and expanded its professional development
programs and hiring to support greater environmental protection in its project development
processes. The most dramatic change in Corps environmental protection efforts in the last
two decades has come with the reworking of its existing projects to provide more than
mitigation — actual ecosystem restoration. The Corps’ largest involvement in a restoration
efforts is in the Florida Everglades, where a three-decade $7.8 billion restoration program
has begun. Ecosystem restoration is new for the Corps and remains a relatively young
science;11 these factors contribute to uncertainty on how to best undertake restoration and
what outcomes to anticipate.
The authority for Corps involvement in ecosystem restoration has come from provisions
within laws that authorize either Corps actions or specific restoration activities. WRDA
1986 (P.L. 99-662; 33 U.S.C. 2309a(c)), for example, provides the Corps with authority to
modify existing project structures and operations to restore environmental quality within a
Corps project area and the area affected by the project. WRDA 1990 (P.L. 101-640; 33
U.S.C. 2316) directs the Corps to adopt environmental protection as a primary mission of its
water resources projects. Recently, the Corps has used or sought separate authorizations to
conduct individual ecosystem restoration programs.
With the goal of restoring the unique wetlands of the Everglades, Congress authorized
the Corps to implement the Comprehensive Everglades Restoration Plan (CERP) in WRDA
2000 (Title VI, P.L. 106-541). The principal objective of CERP is to redirect and store
freshwater currently directed away from the Everglades to the ocean, and use it to restore the
natural hydrologic functions of the south Florida ecosystem. Only an initial set of CERP
projects was authorized in WRDA 2000. The next set is being prepared for approval by
Congress, and it is anticipated that some will be ready for authorization during the 108th
Congress. The federal government is paying for half the cost of construction, operation, and
maintenance of CERP; the other half is borne by the State of Florida, and to a lesser extent,
local tribes and other non-federal sponsors. Coordination of the strategies, policies, and
plans for restoring the Everglades is the responsibility of the South Florida Ecosystem
Restoration Task Force that includes representatives from federal agencies (including the
Corps), the state, and local and tribal governments.
10 “Drought amplifies cries over Big Mo’s low flow,” Argus Leader (Sioux Falls, SD), April 27,
2003.
11 Joy Zedler, “Progress in Wetland Restoration Ecology,” Trends in Ecology and Evolution, vol. 15,
no. 10 (2000):402-406.
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Collaboration among stakeholders is an important feature of ecosystem restoration
because of the need to collectively define restoration goals and coordinate restoration
activities. Clear goals guide the direction of restoration efforts while the specific solutions
to be applied are tested and adapted as restoration science and technology develop. This
flexible learning-based approach to implementation, called adaptive management, is being
used in restoration efforts across the country, including in the Everglades. While adaptive
management provides the flexibility to incorporate new information, there are concerns that
this flexibility could be used to manipulate restoration efforts.
Concerns about the manipulation of adaptive management in Everglades restoration
have been raised recently due to a Florida State law that may affect phosphorous mitigation
deadlines and goals.12 In part to counter concerns about adaptive management, Congress
maintains its involvement in Everglades restoration. It authorizes individual CERP projects
in WRDAs and conducts oversight, as demonstrated by a March 26, 2003, hearing by the
House Appropriations Subcommittee on Interior and Related Agencies on science and the
Florida Everglades restoration.
Everglades restoration is seen by many as a groundbreaking large-scale restoration effort
that will provide many lessons for other restoration projects being considered nationally.
Consequently, its implementation and related congressional actions are being watched
closely. For example, the fate of the Everglades effort and the role of the Corps are being
observed by those involved in an effort to restore Coastal Louisiana’s wetlands that is in the
early stages of planning and is likely to exceed the cost of the Everglades restoration.13
Corps responsibilities in ecosystem restoration efforts are diverse. In the case of CERP,
the Corps’ role is multi-faceted. The Corps is the designated federal sponsor for several
aspects of CERP and is responsible for promulgating programmatic regulations for the
12 Florida State law (Chapter 2003-12) has generated significant controversy among stakeholders
in the Everglades restoration. It amended Florida’s Everglades Forever Act of 1994 by authorizing
a new plan to mitigate phosphorus pollution in the Everglades. Some critics argue that it extends
previously established phosphorus mitigation deadlines for the Everglades, and may compromise
efforts to restore the Everglades, as well as jeopardize federal appropriations for CERP. Proponents
of the bill argue that the new plan represents a realistic strategy for curbing phosphorus. On April
29, 2003, six Members of the U.S. House, including Chairman of the Appropriations Committee
C.W. Bill Young, released a joint statement on the bill that encourages the Governor to veto the bill.
The letter is available at [http://www.house.gov/appropriations/news/108_1/04everglades.htm],
accessed May 21, 2003. The law is available at
[http://www.flsenate.gov/data/session/2003/Senate/bills/billtext/pdf/s0626er.pdf], accessed May 21,
2003.
13 Wetland loss in Louisiana threatens the productivity of its coastal ecosystem, viability of several
of its industries, and flood control in its cities. There are several reasons for wetland loss in Coastal
Louisiana and several proposed ideas for restoring the ecosystem. The Corps is participating with
other federal and state agencies in the development of a comprehensive coastal wetland restoration
program for Louisiana. The agencies are working toward securing congressional approval for an
Everglades-like program for restoration in Coastal Louisiana. The Corps expects to submit the
Coastal Louisiana study to Congress by mid-2004.
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restoration effort,14 administering 50% of the cost of restoration (when it is the federal
sponsor), constructing several of the restoration projects, and sharing in the responsibility of
water management and distribution. In contrast to restoration in the Everglades, the Corps
does not have a leadership role in the restoration of the San Francisco Bay - Sacramento/San
Joaquin Rivers Delta (Bay-Delta or CALFED) in California. The Corps supports this
restoration in the Bay-Delta through flood control and water management projects and
technical assistance with levee design and construction.
The growing role of the Corps in ecosystem restoration raises numerous questions, such
as is the Corps the best agency to manage large-scale restoration projects and, more
generally, how much is the nation willing to invest in restoration, and at what costs to flood
protection and other traditional water uses. Some navigation and flood control interests
have raised specific concerns that Corps resources and funding are being spread too thin with
the addition of large-scale restoration efforts to its workload. In contrast, some
environmental organizations, such as the National Wildlife Federation, argue that the Corps
is making a much needed move to incorporate ecosystem restoration into the modern era of
water resources management.15 Further, they welcome Corps involvement in restoration
efforts. While continuing to criticize project development procedures at the Corps, they
recognize that the Corps has some unique expertise, such as in wetlands creation, and the
authority to implement restoration efforts. These environmental organizations stress the
importance of balancing the Corps role in restoration with the role of resource agencies, such
as the Department of the Interior’s FWS. Other environmental groups, such as the
Everglades Coalition, argue that the Corps may lack scientific expertise in all essential
aspects of ecosystem restoration and that other federal agencies such as the Department of
the Interior should partner with the Corps in some environmental restoration activities.
Ecosystem restoration has the potential to be applied in many places across the country,
including in river systems such as the Missouri River. Many observers are watching the
current restoration efforts to see among other things: how federal financial involvement
proceeds, how restoration science and supporting technologies develop, how well adaptive
management works, and ultimately how effective and costly is restoration.
LEGISLATION
P.L. 108-7 (Young)
Title I of Division D of the Consolidated Appropriations Resolution for FY2003
encompassed many controversial issues for the Corps. Section 109 included language that
prohibits the use of funds to study or implement any “plans privatizing, divesting or
transferring of any Civil Works missions, functions, or responsibilities” without specific
14 Programmatic regulations are expected to provide guidelines for project implementation,
monitoring, adaptive management, and water allocation for restoration activities provided by CERP.
A proposed version of the programmatic regulations was published in the Federal Register, vol. 67,
page 50540 (August 2, 2002); the final version is expected in 2003.
15 Paula Tracy, “Wildlife Groups Push to Change Corps of Engineers,” The Union Leader, (July 11,
2002), Sec. B, p. 3.
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direction by Congress. Provisions on notably controversial projects included: $5 million for
construction of an emergency outlet from Devils Lake (ND) and $10 million for the Yazoo
(MS) Basin’s Backwater Plant. Introduced January 7, 2003; signed into law February 20,
2003.
S. 531 (Dorgan)
The Missouri River Enhancement and Monitoring Act of 2003 establishes the Missouri
River Basin Stakeholder Committee and the Missouri River Monitoring and Research
Program. The stakeholder committee would consist of representatives of the states, tribes,
and interested groups; the committee would be tasked with making recommendations to the
federal agencies with jurisdiction over the river on means of restoring its ecosystem. The
research program would be operated by the United States Geological Survey (USGS) and
would be charged with conducting scientific analysis of the current conditions of the river’s
ecosystems, assisting with the monitoring and recovery of threatened and endangered
species, and identifying means of restoring the ecosystem of the river. This research program
aims to develop information on the affected species that would lead to a better understanding
of how to manage the river for their protection. Introduced March 5, 2003; referred to
Committee on Environment and Public Works.
S. 1097 (Feinstein)
Calfed Bay-Delta Authorization Act authorizes federal agencies to implement activities
under the CALFED largely as framed in a Record of Decision (ROD) dated August 28, 2000.
The bill authorizes Corps activities in the CALFED functional areas of ecosystem
restoration, levee stability, science, and program management, oversight, and coordination.
Introduced May 21, 2003. Referred to Committee on Environment and Natural Resources.
FOR ADDITIONAL READING
Background
CRS Report RS20866, The Civil Works Program of the Army Corps of Engineers: A Primer,
by Nicole T. Carter and Betsy A. Cody.
CRS Report RS20569, Water Resource Issues in the 108th Congress, by Betsy A. Cody and
H. Steven Hughes.
Budget and Appropriations
CRS Report RL31807, Appropriations for FY2004: Energy and Water Development,
Coordinated by Carl Behrens and Marc Humphries.
Inland Waterways Users Board, 17th Annual Report to the Secretary of the Army and the
United States Congress with Appendices (Alexandria, VA: February 2003). Available
at [http://www.iwr.usace.army.mil/usersboard/UBAR2003final.pdf].
Executive Office of the President, Appendix: Budget of the United States Government, Fiscal
Year 2004 (Washington, DC: GAO, 2003), pp. 847-857.
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Reform
CRS Report RL30928, Army Corps of Engineers: Civil Works Reform Issues in the 107th
Congress, by Nicole T. Carter.
National Research Council, New Directions in Water Resources: Planning for the U.S. Army
Corps of Engineers (Washington, DC: National Academy Press, 1999).
National Research Council, Inland Navigation System Planning: The Upper Mississippi
River-Illinois Waterway (Washington, DC: National Academy Press, 2001).
Executive Office of the President, Budget of the United States Government, Fiscal Year
2004, (Washington, DC: GAO, 2003) pp. 253-257 .
U.S. Dept. of the Army, U.S. Army Inspector General Agency Report of Investigation (Case
00-019), (Washington, DC: December 2000) Available at
[http://www.osc.gov/reading.htm].
The Washington Post series on the Corps, available at
[http://washingtonpost.com/wp-dyn/nation/specials/aroundthenation/corpsofengineers].
Operational Changes
CRS Report RL31409, The President’s Management Agenda, by Henry B. Hogue and
Ronald C. Moe.
U.S. Department of the Army, Corps of Engineers Website on the Third Wave available at
[http://www.hqda.army.mil/acsimweb/ca/third_wave.htm].
River Management
American Rivers, et al. v. United States Army Corps of Engineers and United States Fish and
Wildlife Service (1:03CV00241, ), United States District Court, District of Columbia.
Available at [http://www.amrivers.org/docs/moriverlawsuit.pdf].
National Research Council, The Missouri River Ecosystem: Exploring the Prospects for
Recovery (Washington, DC: National Academy Press, 2002).
U.S. Army Corps of Engineers, Northwest Division, Missouri River Mainstem System 2002-
2003 Annual Operating Plan (Omaha, NE: Jan. 2003). Available at
[http://www.nwd.usace.army.mil/pa/endang-species.htm] with other documents related
to the 2003 operating regime and final agreement between the Corps and FWS.
U.S. Army Corps of Engineers, Revised Draft Implementation Plan for the Final Biological
Opinion on Operation of the Missouri River Main Stem Reservoir System, Operation
& Maintenance of the Missouri River Bank Stabilization & Navigation Project, &
Operation of the Kansas River Reservoir System (Omaha, NE: Aug. 2001). Available
at [http://www.nwd-mr.usace.army.mil/mmanual/mast-man.htm].
U.S. Department of the Interior, Fish and Wildlife Service and Department of the Army,
Corps of Engineers, Missouri River Final Biological Opinion, (Nov. 2000). Available
at [http://www.r6.fws.gov/missouririver/mediapacket/Congressional.htm].
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Ecosystem Restoration
CRS Report RS20702, South Florida Ecosystem Restoration and the Comprehensive
Everglades Restoration Plan, by Nicole T. Carter
CRS Report RS21331, Everglades Restoration: Modified Water Deliveries Project, by
Pervaze A. Sheikh.
CRS Report RL31621, Florida Everglades Restoration: Background on Implementation and
Early Lessons, by Pervaze Sheikh.
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