Order Code RS22129
April 27, 2005
CRS Report for Congress
Received through the CRS Web
“Corps of Engineers Reform” in WRDA 2005
Nicole T. Carter
Analyst in Environmental Policy
Resources, Science, and Industry Division
Summary
Enactment of Water Resources Development Acts (WRDAs) in recent Congresses
has been complicated by proposed changes to U.S. Army Corps of Engineers (Corps)
policies and practices. S. 728, WRDA 2005, contains provisions to alter the formulation,
review, and implementation of Corps water resources projects. These provisions are
fueling disagreement about the appropriate direction for change and are shaping the
WRDA debate in the 109th Congress. One view is that Corps projects could be improved
by increasing environmental considerations in project planning, implementing external
review, and enacting more stringent requirements for fish and wildlife mitigation.
Another view supports refinements to Corps planning, review, and mitigation that are
aimed at limiting the length and increasing the predictability of the project development
process, while not increasing costs. The changes to Corps practices proposed in S. 728
draw upon multiple views; most changes proposed in WRDA bills in the 108th Congress
and other legislation draw more heavily upon the former view. This report will be
updated as legislative events warrant.
Controversial proposals to change Corps policies and practices have complicated or
stalled the passage of some Water Resources Development Acts (WRDAs) in recent
Congresses. WRDA is the typical legislative vehicle for Congress to authorize water
resources activities and policy changes for the civil works program of the U.S. Army
Corps of Engineers. Under its civil works program, the Army Corps of Engineers plans,
constructs, and operates water resources facilities primarily for flood damage reduction,
navigation, and environmental purposes. (For more information on the agency, see CRS
Report RS20866, The Civil Works Program of the Army Corps of Engineers: A Primer,
by Nicole T. Carter and Betsy A. Cody.) WRDA often receives biennial congressional
consideration, but no WRDA has been enacted since 2000.
S. 728, WRDA 2005, started the legislative consideration of WRDA in the 109th
Congress. The primary issues that appear to be shaping consideration in the 109th
Congress are the same as in the 108th Congress: authorized spending (e.g., the amount of
authorizations in the bill and the bill’s potential budgetary impact), changes to Corps
policies and practices, and authorization of a few controversial projects. The S. 728
provisions that would change Corps planning, review, and fish and wildlife mitigation are
Congressional Research Service ˜ The Library of Congress

---

CRS-2
the subject of some debate. This CRS report discusses these three provisions and
compares them to similarly titled provisions in prior WRDA bills. For more information
on the other issues shaping the WRDA 2005 debate, see CRS Issue Brief IB10133, Water
Resources Development Act (WRDA): Army Corps of Engineers Authorization Issues in
the 109th Congress, coordinated by Nicole T. Carter.
Background
Support for changing the Corps’ practices gained momentum in 2000 in the wake
of a series of critical articles in the Washington Post, whistleblower allegations, and
ensuing investigations. Many of the supporters of these changes, primarily environmental
groups, sought to modify Corps project planning (e.g., by changing the benefit-cost
analysis and consideration of environmental impacts and benefits) to require additional
review of Corps projects (e.g., through external review of Corps feasibility reports), and
to strengthen environmental protection (e.g., through modifications to fish and wildlife
mitigation requirements). These kinds of changes often were referred to as “Corps
reform.” Although Corps reforms were discussed in the 106th, 107th, and 108th Congresses,
no significant changes were enacted. (For background information on Corps reform
issues, see CRS Report RL30928, Army Corps of Engineers: Civil Works Reform Issues
in the 107th Congress, by Nicole T. Carter.) Some Members of Congress, along with
navigation and other interests, were satisfied with existing practices.
Although the 106th Congress did not enact Corps changes, it asked the National
Academy of Sciences to review Corps planning in §216 of WRDA 2000. In April 2004,
the Academy’s National Research Council (NRC) published four reports from this review.
Each report recommended changes in Corps practices and the larger water resources
management context. The Corps argues that it has transformed itself by changes it has
implemented since 2000, and other changes that are nearing completion; these include
refinements in planning, internal review (with the possibility of external review), and
wetlands mitigation.1
WRDA legislation considered, but not enacted, during the 108th Congress. On
September 24, 2003, the House passed H.R. 2557 (H.Rept. 108-265) — WRDA 2003.
During the House Transportation and Infrastructure Committee’s markup of the bill,
selected Corps reform provisions were added. The Senate Environment and Pubic Works
Committee reported S. 2773 (S.Rept. 108-314) — WRDA 2004 — on August 25, 2004,
and it was placed on the Senate’s legislative calendar. S. 2773 contained some Corps
reform provisions, as well as provisions authorizing a few high-profile projects that were
not included in H.R. 2557. Reportedly, the consideration of S. 2773 was shaped largely
by discussions over the authorization of these projects and the contents of the Corps
reform provisions. No further action was taken on the either bill.
Many environmental advocates for change viewed the planning, independent review,
and fish and wildlife mitigation provisions in H.R. 2557 as a first step in changing the
Corps; however, they generally stated support for stronger measures and additional
measures. Environmental groups criticized provisions in S. 2773 on the same issues for
1 The Corps summarized its efforts at [http://www.usace.army.mil/inet/functions/cw/hot_topics/
18apr_changes.htm], visited April 21, 2005.

---

CRS-3
failing to significantly improve the Corps’ project planning and implementation.
Supporters of the agency’s practices argued there was no need for such changes because
the Corps’ project development and review process was sufficiently thorough. They
viewed the provisions in S. 2773 as burdensome, potentially delaying Corps projects.
Evolution of the Corps Reform Debate
The debate over changing the Corps has evolved. As shown by S. 753, the Corps of
Engineers Modernization and Improvement Act of 2005, some continue to support the
types of Corps reform measures that largely grew out of the exposure the Corps received
in 2000. Others argue that any changes should move in a different direction than the
original measures pursued after the 2000 events. These stakeholders, like many nonfederal
sponsors of Corps projects, want to increase the predictability of the Corps planning
process by making changes such as standardizing planning procedures, models, and data;
limiting the length of studies; and requiring tracking of the agency’s construction backlog.
In other words, there are at least two views of how to change the Corps that derive from
fundamentally divergent perspectives of what, if anything, is wrong with the Corps’
practices.
Corps Reform in WRDA 2005
Provisions to change the Corps in S. 728, WRDA 2005, reflect various views;
although some elements of S. 728 are similar to provisions negotiated during WRDA
considerations in the 108th Congress, many elements of S. 728 are either new or
significantly modified. Judgements of the merits of the S. 728 provisions vary widely,
depending on perspectives on the Corps project development process and on the direction
of any change.
The S. 728 provisions that would change Corps procedures on planning (§2006),
independent review (§2007), and fish and wildlife mitigation (§2008) are the subject of
some debate. These three provisions, however, are not the only provisions in S. 728
changing Corps practices and policies. Other provisions also could be analyzed in the
context of Corps reform (e.g., §2005, requiring a Corps fiscal transparency report, and
§2015, requiring cost-sharing for monitoring of ecosystem restoration projects) and may
be seen by some observers as implementing changes similar to the NRC
recommendations. The analysis herein focuses on §§2006, 2007, and 2008 due to their
role in WRDA 2005’s consideration.
Planning. Corps planning is based largely on the Principles and Guidelines for
Water and Related Resources Implementation Studies (P&G), prepared by the Water
Resources Council in 1983 to guide federal water resources development.2 Using the
P&G as a framework, the Corps publishes its own planning guidance. The agency last
revised its planning guidance in April 2000, and amended it in June 2004. Environmental
groups criticize the Corps for insufficient attention and rigor to its analysis of the
environmental damages of its flood control and navigation projects; some of these groups
want the Corps to update its guidance to incorporate contemporary analytical techniques
2 The WRC was established pursuant to the 1965 Water Resources Planning Act (42 U.S.C.
§1962-b2); it is currently dormant due to a lack of funding.

---

CRS-4
and changes in public values and federal agency programs. For example, Corps analyses
currently include economic development benefits from wetlands losses; some want these
benefits to be excluded. Many nonfederal project sponsors support other changes to
Corps planning, such as greater attention to local and regional benefits of Corps projects,
and increased predictability through a planning process limited in time and in the scope
of required studies. They cite examples of decade-long Corps feasibility studies costing
tens of millions of dollars as the justification for some of these changes.
Section 2006 of S. 728 contains elements from planning sections of the two WRDA
bills of the 108th Congress, but also includes new provisions. Section 2006 of S. 728, like
S. 2773 (108th Congress), would require the Corps to periodically update its planning
guidelines and regulations. Section 2006 has benefit-cost analysis requirements that
include some but not all of the requirements in S. 2773. For example, S. 728 would
require a Corps feasibility study to be based on a benefit-cost analysis that identifies risk
and uncertainty; national, regional, and economic benefits and costs; costs and benefits
of protection or degradation of natural systems; and social, cultural, and historical
properties costs and benefits. In contrast to S. 2773, §2006 of S. 728 does not exclude
from analyses the benefits and costs associated with the increase in direct federal
payments or subsidies and the benefits attributable to wetlands drainage, reduction, or
loss. S. 728 also does not require the Corps to apply to water resources projects an
economic discount rate used by other federal agencies, as S. 2773 would have required.3
Section 2006 would require that the federal objective of a Corps study be (1) to
maximize net national economic benefit, consistent with protecting the environment, for
flood damage reduction and navigation projects, and (2) to maximize net national
ecosystem benefits, consistent with economic development, for ecosystem restoration
projects. These planning objectives are similar to provisions in H.R. 2557.
There are numerous provisions in §2006 that were in neither WRDA bill of the 108th
Congress. For example, §2006 largely limits Corps feasibility studies to two years,
requires a risk analysis for cost estimates, and requires review and development of
multiple elements of the water planning process (such as development of approved
methods and models to apply to water resources planning). Section 2006 also requires
that the Chief’s report be submitted, upon completion, to the Senate Environment and
Public Works Committee and the House Transportation and Infrastructure Committee.
Currently, upon the completion of a Chief’s report, informational copies are sent to the
committees, and the formal submission occurs after policy compliance reviews by both
the Assistant Secretary of the Army (Civil Works) and the Office of Management and
Budget (OMB). There are numerous other policy-related changes in §2006 that were not
in either WRDA bill of the 108th Congress.
Independent Review. Prior to policy compliance review by the Assistant
Secretary and OMB, Corps feasibility reports and supporting studies are reviewed
internally by staff from Corps districts, divisions, and agency headquarters. The federal
actions identified in a feasibility report are subject to public comment as part of
3 For background information on Corps discount rates, see CRS Report RL31976, Benefit-Cost
Analysis and the Discount Rate for the Corps of Engineers’ Water Resource Projects: Theory
and Practice, by Kyna Powers.

---

CRS-5
compliance with the National Environmental Policy Act of 1969 (NEPA, P.L. 91-190, 42
U.S.C. §4321). Some Corps feasibility studies and reports also have undergone external
review, often at the direction of Congress. The Corps has indicated that it is nearing
completion of peer review guidance to be applied at Corps districts to the scientific
information supporting selected feasibility reports. Some environmental groups contend
that an external review of Corps planning is necessary. They claim that it could counter
deficiencies in the internal review and an institutional-cultural bias of the agency for large
construction projects. Others argue that the Corps’ existing review process and the
additional steps being taken by the agency are sufficient, and that external review would
add little more to projects than costs and delays.
Section 2007 of S. 728 would establish review requirements that appear substantially
different from the independent review provisions in the WRDA bills of the 108th
Congress. Key differences include what would be reviewed and by whom. Section 2007
would establish a policy that “major engineering, scientific, and technical work products
related to Corps of Engineers decisions and recommendations” be peer reviewed. Unlike
the review requirements proposed in the 108th Congress that tied review to project studies
or reports, §2007 reviews would apply to work products, which may or may not be related
to specific Corps projects. This would allow for methods, models, procedures, and data
used in many Corps studies to undergo general reviews, rather than being reviewed on a
project-by-project basis. Section 2007 does not state which “major” work products would
be the subject of review; instead, it requires the Corps to publish and implement peer
review guidelines within a year of enactment. Section 2007 would prohibit the review of
specific recommendations and of the application of policy to recommendations.
Section 2007 would not require that the review be external to the Corps; however,
it provides for the possibility of external review. Section 2007 does not provide guidance
on how the external review decision would be made; it appears that the Corps guidelines
required to be developed under §2007 would address this matter.
Rather than delegating to the Corps the responsibility for establishing the guidelines
for review, the review provisions in H.R. 2557 and S. 2773 of the 108th Congress directed
the review process by identifying what would be reviewed and by whom. Both bills tied
review to project studies or reports, although they would have had different universes of
projects subject to review. The reviews would have been conducted independently from
the Corps; for instance, S. 2773 prohibited the participation of Corps employees; and H.R.
2557 required that the review be conducted by a National Academy of Sciences panel, or
a panel by another independent, eligible organization. These bills also did not appear to
explicitly prohibit the review of specific recommendations or the application of policy to
recommendations, as §2007 of S. 728 would.
Fish and Wildlife Mitigation. WRDA 2000 called for a study by the General
Accounting Office (GAO, now the Government Accountability Office) on the
effectiveness of concurrent mitigation for fish and wildlife impacts of Corps projects. In
the May 2002 GAO report, titled US Army Corps of Engineers: Scientific Panel’s
Assessment of Fish and Wildlife Mitigation Guidance (GAO-02-574), most of the
panelists rated the overall quality of the Corps’ mitigation program as moderate or good
while also identifying some areas of concern. For example, panelists noted that
mitigation design was emphasized to the detriment of mitigation monitoring and
evaluation, and that wetlands were emphasized over other land forms. They also pointed

---

CRS-6
out that Corps guidance did not require corrective actions to be made where mitigation
features failed. The June 2004 amendment to the Corps’ planning guidance addressed
some aspects of mitigation, such as requiring Corps mitigation plans to include provisions
for mitigation monitoring. The Corps currently is not required to complete a specific
amount of mitigation before beginning project construction; according to the Corps,
completing a specific amount might not be feasible in some cases (e.g., if excavated
project material is used for mitigation activities). Environmental advocates contend that
the Corps has not been held to the same mitigation standards as other developers,
particularly for wetlands. They propose full mitigation for environmental impacts of
projects by replacing habitat destroyed acre-for-acre and linking appropriations for
mitigation and construction. Opponents of such changes argue that the existing planning
process and regulations provide sufficient environmental protection, and that further
requirements would only cause delay and increase costs.
The §2008 fish and wildlife mitigation provision in S. 728 is largely similar to a fish
and wildlife mitigation provision in H.R. 2557. Both provisions add requirements for the
content of mitigation plans for Corps projects, and would require completion of mitigation
for a project or separable project element of a project, within a year of project or element
completion. The provisions differ in that §2008 includes a provision on the use of
mitigation banks if other mitigation is not practicable. Another distinction is that §2008
does not include a requirement that project mitigation plans include mitigation success
criteria based on “replacement of lost functions and values of the habitat, including
hydrologic and vegetative characteristics.”
In contrast, §2008 of S. 728 differs significantly from the more extensive fish and
wildlife mitigation requirements in S. 2773. For example, S. 2773 appeared to require
stricter fish and wildlife mitigation implementation requirements for Corps projects, such
as completion of 100% of off-site mitigation prior to 50% of project construction. S.
2773 also included a controversial standard for mitigation, often referred to as “acre-for-
acre” mitigation: “the Secretary shall, at a minimum, require and restore the same number
of acres of habitat that fully replace the hydrologic and ecological functions and
characteristics of each acre of habit adversely affected by the project.” Section 2008 of
S. 728 does not include similar provisions.

---