Order Code IB10120
CRS Issue Brief for Congress
Received through the CRS Web
Army Corps of Engineers Civil Works Program:
Issues for Congress
Updated July 3, 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
project development, and a House Corps
ongoing issues related to the civil works
Reform Caucus has been reinstituted.
program of the U.S. Army Corps of Engineers
(Corps). Under civil works, the Corps plans,
Operational Changes. The Bush Ad-
constructs, and operates water resources
ministration has undertaken two initiatives
facilities such as flood control, navigation, and
that may change Corps operations. One aims
ecosystem restoration projects.
primarily at increasing competition between
public and private sources of services for
Appropriations and Budget Requests.
federal agencies. The other is an Army-wide
Funding for civil works has often been conten-
effort to focus on its core war-fighting compe-
tious between the Administration and Con-
tencies that encompasses a review of the
gress, with appropriations typically providing
agency’s civil and military activities.
more funding than was requested.
The
FY2004 budget request would cut civil works
River Management.
Drought condi-
spending by 9% and reduce federal outlays by
tions in recent years and threatened and
expanding the use of two trust funds.
endangered species concerns have raised some
fundamental questions about Corps manage-
Authorizations and WRDA. Congress
ment of the nation’s rivers. Questions include
typically authorizes Corps projects and makes
whether some river uses should take prece-
policy changes as part of a biennial consider-
dence over others and if the current institu-
ation of a Water Resources Development Act
tional arrangements for river management are
(WRDA).
The most recent WRDA was
appropriate. In this context, both the annual
enacted in 2000. A WRDA was reported in
and long-term operations of the Missouri
the House in 2002, but no vote was taken. A
River and monitoring of the river’s ecosystem
similar WRDA of 2003 — H.R. 2557 — was
and species (S. 531) are likely to be debated
introduced in late June; a committee markup
during the 108th Congress. Efforts to assist
by the House Transportation and Infrastruc-
salmon restoration, especially the removal of
ture Committee is anticipated for mid-July.
the Lower Snake River dams (H.R. 1097),
The Senate Environment and Public Works
may also be discussed.
Subcommittee on Transportation and Infra-
structure appears to have given priority to
Ecosystem Restoration. During the last
reauthorizing the Transportation Equity Act
decade, Congress has expanded Corps in-
and has indicated it is unlikely to consider a
volvement in ecosystem restoration.
The
WRDA before late 2003.
Corps plays a significant coordination role in
restoring the Florida Everglades. Implementa-
Project Development Reform. Conflict
tion problems with Everglades restoration
among Members of the 107th Congress and
have raised concerns about the feasibility of
other interested parties over changing the way
such efforts and the proper federal role. More
the Corps evaluates and undertakes projects
restoration projects with Corps participation
reportedly influenced the decision not to vote
are being planned and may be proposed
on a WRDA in 2002. A recently introduced
during the 108th Congress.
bill — H.R. 2566 — aims at reforming Corps
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
The Corps will continue releases to provide flows sufficient for minimum service
navigation based on a July 1 reservoir level check for the Missouri River mainstem dams.
The navigation season will be shortened by six days as previously planned. 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. Implementation of the plan was altered by court orders restricting the releases
from an upper basin reservoir to protect its sport fishing industry. The most recent ruling in
the nine lawsuits related to Missouri River management upholds that the Corps is required
to manage the Missouri River mainstem dams pursuant to the existing Missouri River Master
Manual.
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. The Senate Armed Services Committee
had reported favorably on Woodley’s nomination on March 27, 2003. Members of Congress
have placed holds on floor consideration of the nomination.1
A House Transportation and Infrastructure Committee markup of the recently
introduced H.R. 2557 — Water Resources Development Act (WRDA) of 2003 — was
postponed; it is anticipated for mid-July. H.R. 2566 — Army Corps of Engineers Reform
Act of 2003 — was introduced in late June; it aims to change project development
procedures at the Corps.
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.
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.
1 For background information on Senate holds, see CRS Report 98-712GOV, “Holds” in the Senate.
2 More information on the Corps military program and its activities in Iraq are available,
respectively, at [http://www.usace.army.mil/military.html] and [http://www.hq.usace.army.mil/cepa/
iraq/iraq.htm].
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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
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. As discretionary spending, 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.
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
3 For more information on the HMTF and the tax supporting it, see CRS Report RL31264, Harbor
Maintenance Funding. Identical bills — H.R. 2564 and S. 1310 — would alter the Internal Revenue
Code to limit the exclusion of certain ports from the Harbor Maintenance Tax.
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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
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,
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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PMAs would pay the Corps at the beginning of the fiscal year (as opposed to the current
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; however, appropriations
bills have also been used as vehicles for authorizing projects. The last WRDA was enacted
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. Rep.
Don Young, Chairman of the House Transportation and Infrastructure Committee,
introduced a WRDA 2003 — H.R. 2557 — on June 23. The bill is based largely on the
WRDA legislation approved by the Committee in 2002. A committee markup is expected
in mid-July. The Senate Environment and Public Works Subcommittee on Transportation
and Infrastructure appears to have established reauthorization of the Transportation Equity
Act as its first priority for 2003, indicating that consideration of WRDA is unlikely until late
2003 or early 2004.
H.R. 2557 contains approximately 250 provisions authorizing projects or changes to
projects and 28 general provisions that alter various aspects of Corps operations and policies.
The bill authorizes nine major projects that fall under the Corps navigation, flood control,
environmental restoration, and storm damage reductions responsibilities. The bill also
authorizes smaller projects — 13 flood damage reduction and protection projects, 5
navigation projects, 11 environmental quality and aquatic ecosystem restoration projects, and
1 shoreline protection project. The project-related provisions include modification of over
90 navigation, flood damage reduction, and environmental restoration projects. The 95
miscellaneous provisions include an increase in authorized appropriations or an expanded
scope of activities for more than ten environmental restoration projects, the authorization of
a 12-foot navigation channel for the Arkansas River (§5025), the development of a
comprehensive river basin restoration plan for the Kaskaskia River (§5036) and the Coastal
Louisiana Ecosystem (§5043).
Some interest groups have criticized the types 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 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. H.R. 2557 proposes authorization of many
ecosystem restoration projects and related studies. (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 that have been 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 requests no funding for
environmental infrastructure projects. Title V of H.R. 2557 includes numerous provisions
for increasing the authorization and expanding the scope of at least 10 environmental
infrastructure projects.
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Beach nourishment is another category of controversial projects. Beach nourishment
is the placement of sand on beaches either as a means of dredging spoil disposal or as an
effort to artificially widen beaches. Periodic replenishment is needed to maintain most
widened beaches. Taxpayer advocacy groups criticize periodic nourishment as providing
only temporary benefits; they also argue that the benefits of nourishment accrue largely to
local, often private, interests, although the federal share of such projects is now 50%. Some
environmental groups are against many beach nourishment activities because of possible
harm to marine and coastal habitats for benthic animals like worms and clams. Proponents
of Corps involvement in beach nourishment argue that it is an economical solution to storm
damage: the sand placed on the beach may reduce the force of ocean waves, providing
additional protection to shorefront structures. H.R. 2557, the proposed WRDA 2003, would
authorize beach nourishment activities. Another bill, H.R. 2558, would extend the period in
which the Corps could provide beach nourishment for water resources development projects
from 15 to 50 years from the date of initial construction. The President in his FY2004
budget request did not target beach nourishment activities for reduced federal funding, a
change from past submissions by both Democratic and Republican Administrations.
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.
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.
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). In H.R. 2557, the eight projects
proposed for authorization in §1001 (the section equivalent to §101 of the three WRDAs previously
mentioned) all have Chief’s reports available.
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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.
In early 2003, Corps officials testified on how the agency is “transforming” itself in
response to criticisms 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. Notwithstanding the
measures already taken and those planned by the Administration, many critics maintain that
more fundamental changes are necessary.
A House Corps Reform Caucus has been reinstituted for the 108th Congress, and Rep.
Kind has introduced a Corps reform bill, H.R. 2566, based on his bill in the 107th Congress
(H.R. 1310). Interest in Corps reform led to six bills during the 107th Congress and three bills
during the 106th Congress.7 These legislative proposals for Corps reform of the 107th and
106th Congresses consisted primarily of improved project development processes and review
procedures. However, no bills significantly changing Corps procedures have been enacted.
Interest by some Members of Congress to include Corps reform measures in the proposed
WRDA 2002 reportedly played a significant role in the bill not being voted on in the House.
H.R. 2557, the proposed WRDA 2003, does not contain the reform provisions sought
by reform advocates, and some of the provisions of the bill may be viewed by the some
groups as counter to reform.
For example, §2028 is intended to streamline project
environmental review by authorizing the Corps to coordinate the review activities of the
7 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.
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federal, state, and local agencies and Indian tribes with jurisdiction over the project. The
Corps would establish a schedule for completing the NEPA (National Environmental Policy
Act, P.L. 91-190; 42 U.S.C. 4321) process, with the intention of consolidating the various
studies and requirements into a single environmental review process. Under §2025, a claim
arising under federal law seeking judicial review of the environmental review documents and
decision would be subject to time and venue restrictions. Environmental groups generally
oppose this type of streamlining, arguing that it limits the roles of the other agencies and the
judicial review of a project’s environmental impacts. Another measure that may be viewed
by environmental groups as counter to reform is §2027, providing for streamlining and
consolidating of the Corps’ and other agencies’ permitting processes.
Supporters of
streamlining generally contend that current practices are inefficient and time-consuming and
that measures such as those in §2027 and §2028 are necessary to expedite the sound
development of the nation’s water resource. Another notable general provision in H.R. 2557
is §2003; it would increase the federal cost-share responsibilities by 25% for deep draft
navigation projects between 45 and 53 feet in depth. This increased federal responsibility
is counter to reforms being pursued by taxpayer advocacy groups to limit federal funding for
projects that have a significant portion of their benefits accruing to private and local interests
and that are potentially environmentally damaging. Supporters of federal spending on
harbors note the national benefits of the goods transported.
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.8
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.
During the 108th Congress, Corps reform may be raised in a variety of forms — stand-
alone Corps reform bills (e.g., H.R. 2566), provisions in a WRDA, or provisions in an
appropriation 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
8 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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10%, respectively, of the positions performing commercial activities at agencies, including
the Corps.9
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. An array of interests are questioning current river management
practices in the nation and how management can balance benefits (and harm) across multiple
river uses, including in-stream uses. Two debates raised by proposed legislation that are
representative of this reevaluation of river management policies are the partial removal of
the Lower Snake River dams and the management of the Missouri River. H.R. 1097, the
Salmon Planning Act, would authorize the Corps to partially remove four dams on the Lower
Snake River subject to favorable findings by the Secretaries of Commerce and the Interior
and the Administrator of the U.S. Environmental Protection Agency.
The monitoring and possible restoration of the Missouri River is the subject of S. 531,
Missouri River Enhancement and Monitoring Act of 2003. The bill would establish a basin
stakeholder committee to make recommendations on means to restore the river ecosystem
and support a research program dedicated to the monitoring and recovery of the river’s
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 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
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 (Sept. 30, 1992) p. 45100.) More information is available in CRS Report RL31024,
The Federal Activities Inventory Reform Act and Circular A-76.
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threatened and endangered species. S. 531 addresses two elements of the debate over the
Missouri River: the availability of scientific data, and the role of stakeholders in the decision
making process guiding the river’s management. Other aspects of the debate, principally the
timing and quantity of the releases from the mainstem dams, have been raised numerous
times during the appropriations process in recent years. These issues remain largely
unresolved and may arise again during the 108th Congress, especially considering the
climatological conditions in the basin.
Drought conditions persist in many areas of the Missouri River basin despite near
normal snowpack and precipitation. The depressed levels of runoff due to the dry soil
conditions from the preceding years of drought have further reduced the already low
reservoir levels of the mainstem reservoirs. The operation of the mainstem dams and the
impacts on the reservoirs is currently the subject of nine lawsuits.
The debate over the operation of the mainstem dams reflects 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.10 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, navigation, recreation, and fish and wildlife protection. The
congressional authorizations of these dams are generally understood not to 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.
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. A court order altered the operating plan of 2003 by restricting the releases from
the reservoir to protect its sport fishing industry. The most recent ruling in the nine suits
related to Missouri River management upholds that the Corps is required to manage the
Missouri River mainstem dams pursuant to the existing Missouri River Master Manual. The
10 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 protected bird species during their May 1 through August 15 nesting season. This is
a critical period for federally listed endangered birds 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 (i.e., 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.
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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
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.11
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;12 these factors contribute to uncertainty on how to best undertake restoration and
what outcomes to anticipate.
11 “Drought amplifies cries over Big Mo’s low flow,” Argus Leader (Sioux Falls, SD), April 27,
2003.
12 Joy Zedler, “Progress in Wetland Restoration Ecology,” Trends in Ecology and Evolution, vol. 15,
no. 10 (2000):402-406.
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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.
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.13 Due to the passage of this state law, the House Committee on
Appropriations, in its draft Interior and Related Appropriations bill, has directed the
Secretary of the Army and other department heads to file a biannual report indicating whether
the State of Florida is meeting its obligations to improve water quality in certain portions of
the Everglades (including Everglades National Park) and whether it is consistent with state
water quality standards. If the report is favorable, the Committee will release funds to
continue certain restoration projects in the Everglades. The Corps is also authorized to
13 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. The law
is available at [http://www.flsenate.gov/data/session/2003/Senate/bills/billtext/pdf/s0626er.pdf],
accessed May 21, 2003.
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receive funds from the Department of the Interior to provide additional water quality
improvement technologies in the Everglades; these technologies are expected to assist the
State of Florida with meeting water quality standards.
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.14
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.15
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
restoration effort,16 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
14 The U.S. Supreme Court has announced that during its next session, beginning October 2003, it
will consider a case related to water allocation in the Everglades. (South Florida Water Management
District v. Miccosukee Tribe of Indians, et. al (No. 02-626).) The Court is expected to decide how
much authority the federal government has in controlling water pumping across the Everglades.
15 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
plan 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 2004.
16 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.
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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.17 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
Appropriations and Budget Request
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
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.
Authorizations and WRDA
H.R. 2557 (Young)
The Water Resources Development Act of 2003 contains approximately 250 provisions
authorizing projects or changes to projects and 28 general provisions that alter various
aspects of Corps operations and policies. Introduced June 23, 2003; referred to the House
Committee on Transportation and Infrastructure.
H.R. 2558 (McIntyre)
This bill extends from 15 to 50 years the period during which the Corps could provide
beach nourishment for a water resources development project. Introduced June 23, 2002;
referred to the Committee on Transportation and Infrastructure.
17 Paula Tracy, “Wildlife Groups Push to Change Corps of Engineers,” The Union Leader, (July 11,
2002), Sec. B, p. 3.
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Project Development Reform
H.R. 2566 (Kind)
The Army Corps of Engineers Reform Act of 2003 establishes economic development
and environmental protection and restoration as co-equal goals for the Corps. The bills
establishes stakeholder advisory committees and independent review of projects as well as
requirements for public access to project analyses. The bill refines the Corps economic
evaluation of environmental impacts and establishes stricter mitigation and tracking
requirements. Introduced June 23, 2003; referred to Committee on Transportation and
Infrastructure.
River Management
H.R. 1097 (McDermott)
The Salmon Planning Act authorizes the Corps to partially remove four Lower Snake
river dams if their removal is found favorable by the Secretaries of Commerce and the
Interior and the Administrator of the Environmental Protection Agency. It also requires the
agency to perform the preliminary engineering, design, and construction for partial removal.
The bill also requires a National Academy of Sciences analysis of the federal salmon
recovery efforts and a General Accounting Office study of the effects of partial removal os
the four Lower Snake dams.
Introduced March 5, 2003; referred to the Resources
Subcommittee on Fisheries Conservation, Wildlife, and Oceans(which has requested
executive comment from the Department of the Interior) and the Transportation and
Infrastructure Subcommittee on Water Resources and the Environment.
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.
Ecosystem Restoration
H.R. 2641 (Miller, G.)
Calfed Bay-Delta Authorization Act is similar to S. 1097 in that it would authorize
federal agencies to implement activities under the CALFED largely as framed in a Record
of Decision (ROD) dated August 28, 2000. Further, the bill would authorize Corps activities
in the CALFED functional areas of ecosystem restoration, levee stability, science, and
program management, oversight, and coordination. Introduced June 26, 2003; referred to
Committee on Transportation and Infrastructure and Committee on Resources.
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
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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.
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).
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].
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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].
CRS Report 98-666 ENR, Pacific Salmon and Anadromous trout: Management under the
Endangered Species Act, by John R. Dandelski and Eugene H. Buck.
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].
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.
CRS Report RL31975, CALFED Bay-Delta Program: Overview of Institutional and Water
use Issues, by Pervaze A. Sheikh and Betsy A. Cody.
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