H.R. 3080 and S. 601: Comparison of Select
Provisions and Conference Developments
Nicole T. Carter
Specialist in Natural Resources Policy
Charles V. Stern
Specialist in Natural Resources Policy
John Frittelli
Specialist in Transportation Policy
Linda Luther
Analyst in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
May 19, 2014
Congressional Research Service
7-5700
www.crs.gov
R43298
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Summary
Conference report H.Rept. 113-449 would resolve differences between H.R. 3080, the Water
Resources Reform and Development Act of 2013 (WRRDA 2013), and S. 601, the Water
Resources Development Act of 2013 (WRDA 2013). Both bills represented omnibus
authorization legislation for water resource activities, principally associated with the U.S. Army
Corps of Engineers (Corps).
Authorizing and Deauthorizing Projects. The conference report would authorize 34
construction projects totaling $25.65 billion ($15.64 billion federal, $10.01 billion nonfederal).
The report would establish expedited House and Senate procedures for bills authorizing
construction projects meeting specified criteria. The conference report would require an annual
report from the Administration identifying proposed new studies, completed feasibility reports,
and project modification reports. The conference report would create a process to deauthorize
previously authorized projects with federal costs-to-complete totaling $18 billion; the process
would be led by the Administration, with opportunities for public input and congressional
disapproval.
Expediting Studies, Environmental Reviews, and Permits. The conference report, like H.R.
3080 and S. 601, aims to expedite Corps studies and compliance with applicable environmental
laws, including the National Environmental Policy Act (NEPA). The conference report would
raise the project cost trigger for independent peer review of feasibility studies from $45 million to
$200 million.
Expanding Project Delivery and Financing Opportunities. The conference report, like H.R.
3080 and S. 601, would encourage nonfederal opportunities in delivering water resources
projects. It would expand opportunities for crediting for nonfederal work, financial, and study and
project management. Like S. 601, the conference report also would establish a pilot program
known as the Water Infrastructure Finance and Innovation Act (WIFIA) to finance water
infrastructure projects. The Corps and the U.S. Environmental Protection Agency would
administer the WIFIA pilot program.
Investing in Navigation. The conference report would encourage increased spending from the
Harbor Maintenance Trust Fund (HMTF). It modifies prioritization of HMTF funding among
different types of harbors but retains similar provisions contained in H.R. 3080 and S. 601
reserving certain portions of funds to harbors with less cargo. The conference report, like H.R.
3080 and S. 601, would not enact changes to inland waterway revenues in general but would
increase the threshold for major rehabilitation efforts on inland waterways, authorize changes to
waterway project delivery, and alter the cost-share for one project (Olmsted Locks and Dam).
These changes may increase the likelihood of Inland Waterways Trust Fund (IWTF) monies being
available for use on other inland waterway construction projects.
Reducing Flood Risks. The conference report would establish a levee safety initiative—a scaled-
down version of S. 601 provisions—that would authorize Corps technical assistance and training
to promote levee safety, Federal Emergency Management Agency (FEMA) assistance in
establishing or improving state and tribal levee safety programs, and Corps levee rehabilitation
assistance. Like H.R. 3080 and S. 601, the conference report would require the Corps to develop
national levee safety guidelines and review.
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Restoring and Protecting Aquatic Ecosystems. The conference report would provide additional
direction on various efforts for regional river and coastal restoration (e.g., Chesapeake Bay, North
Atlantic coastal restoration) and authorize the construction of projects which have previously
been studied in the Everglades and Coastal Louisiana, among other places. It also would add to
Corps authorities for the prevention, control, and eradication of invasive species.
Addressing Other Issues. The conference report includes provisions amending the applicability
of the scope of the Environmental Protection Agency’s oil spill prevention, control, and
countermeasure regulations, by exempting certain farms from the requirements. It also includes
amendments to certain water infrastructure provisions of the Clean Water Act (CWA). These
CWA provisions, while representing the first amendments to CWA Title VI since 1987, do not
address many of the more long-standing or controversial CWA issues. The conference report does
not include the ocean-related provisions of H.R. 3080 and S. 601. Instead, it would authorize the
Corps studies and limited construction of Corps projects to enhance ocean and coastal ecosystem
resiliency.
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Contents
Conference Report Developments ................................................................................................... 1
Comparison of H.R. 3080, S. 601, and Conference Report ............................................................. 3
Expediting Studies, Environmental Reviews, and Permits .............................................................. 4
Corps Studies ............................................................................................................................. 5
Environmental Reviews ............................................................................................................. 7
Corps Permitting ...................................................................................................................... 10
Expanding Project Delivery and Finance Opportunities................................................................ 16
Nonfederal Work and Leadership on Studies and Projects ...................................................... 16
Water Infrastructure Finance and Innovation Act (WIFIA) ..................................................... 16
Authorizing Projects and Managing Subsequent Authorizations .................................................. 26
Project Authorizations and Authorized Project Purposes ........................................................ 26
Subsequent Authorization Processes ....................................................................................... 27
New Studies ....................................................................................................................... 27
New Project Authorizations and Modifications of Project Scope ..................................... 27
Project Cost Modifications and Project Modifications ..................................................... 28
Investing in Navigation .................................................................................................................. 32
Harbors .................................................................................................................................... 32
Inland Waterways .................................................................................................................... 33
Reducing Flood Risks .................................................................................................................... 39
Restoring and Protecting Aquatic Ecosystems .............................................................................. 45
Ecosystem Restoration ............................................................................................................ 45
Invasive Species ...................................................................................................................... 46
Deauthorizing Projects and Managing the Backlog ....................................................................... 49
Addressing Other Issues ................................................................................................................ 52
Oil Spill Prevention on Farms ................................................................................................. 52
Clean Water Act Amendments ................................................................................................. 52
Ocean Policy ............................................................................................................................ 53
Tables
Table 1. Provisions Covered by CRS Report ................................................................................... 4
Table 2. Select Expediting Study and Permit Provisions ............................................................... 11
Table 3. Select Provisions Intended to Expedite Environmental Reviews .................................... 13
Table 4. Select Provisions to Expand Project Delivery and Financing Opportunities ................... 18
Table 5. Select WIFIA Provisions .................................................................................................. 23
Table 6. Select Project Authorization Provisions ........................................................................... 29
Table 7. Select Provisions on Subsequent Authorizations of Studies, Projects, and Project
Modifications .............................................................................................................................. 30
Table 8. Select HMTF Provisions .................................................................................................. 35
Table 9. Select Inland Waterways Provisions ................................................................................ 38
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Table 10. Select Flood Safety Provisions ...................................................................................... 41
Table 11. Select Ecosystem Restoration and Invasive Species Provisions .................................... 47
Table 12. Select Provisions on Deauthorization and Managing the Backlog ................................ 50
Table 13. Select Ocean Policy, Oil Spill Prevention, and Clean Water Act Provisions ................. 54
Table A-1. Crosswalk of Conference Report, H.R. 3080, and S. 601 Bill Titles ........................... 57
Appendixes
Appendix. Crosswalk of Titles and Subtitles of Conference Report, H.R. 3080, and S. 601 ........ 57
Contacts
Author Contact Information........................................................................................................... 58
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Conference Report Developments
Conference report H.Rept. 113-449 would resolve differences between the House-passed H.R.
3080, the Water Resources Reform and Development Act of 2013 (WRRDA 2013), and the
Senate-passed S. 601, the Water Resources Development Act of 2013 (WRDA 2013).1 The
conference report adopts Water Resources Reform and Development Act for the act’s title. Both
bills represented omnibus authorization legislation focused on water resource activities,
principally of the U.S. Army Corps of Engineers, and a few other environmental issues. The bills
addressed many similar issues, but often used different means. During the House and Senate
deliberations, some Members expressed frustration with how long Corps projects take. Some
Members also expressed interest in authorizing new projects and deauthorizing older
unconstructed projects. Some Members want more prominent nonfederal roles. Others support
more funding for harbor maintenance and improved inland waterway construction. The earmark
debate and concerns about congressional roles also shaped each bill’s approach. The
Administration provided comments during congressional deliberations. The two most recent
communications consisted of a December 11, 2013, letter from the Assistant Secretary of the
Army (Civil Works), hereinafter referred to as the ASA, to the conference managers;2 and Army
Corps testimony before the U.S. House Committee on Transportation and Infrastructure (T&I),
Subcommittee on Water Resources and Environment, on April 29, 2014.
Authorizing Projects. The conference report would authorize a fixed set of 34 new construction
projects totaling $25.65 billion ($15.64 billion in federal costs and $10.01 billion in nonfederal
costs),3 and increase the authorization of appropriations for eight previously authorized projects.
The report would establish expedited House procedures for the remainder of the 113th Congress
and expedited Senate procedures through 2018 for bills authorizing construction projects that
meet specified criteria. The conference report would require an “Annual Report” from the ASA to
Congress identifying proposed new studies (including studies proposed by nonfederal entities)
and completed feasibility and project modification reports. When the Senate passed S. 601 on
May 15, 2013, there were an estimated 19 construction projects representing approximately $10.8
billion ($6.3 billion federal and $4.5 billion nonfederal) that appeared to meet the new project
authorization criteria in S. 601. When the House passed H.R. 3080 on October 23, 2013, it would
have authorized a fixed set of 23 new construction projects at a total cost of $13.0 billion ($7.7
billion in federal costs and $5.3 billion in nonfederal costs). The conference report included no
comparable title to Title III of S. 601, Project Modifications.
Expediting Studies, Environmental Reviews, and Permits. The conference report, like H.R.
3080 and S. 601, would encourage completion of Corps studies within three years, limit study
costs, and establish new procedures intended to expedite Corps completion of environmental
1 On October 31, 2013, the Senate considered H.R. 3080, and replaced the text passed by the House with the text of S.
601 as passed by the Senate. The Senate insisted on its amendment and requested a conference. While the House and
Senate versions of H.R. 3080 are the basis for conference, this report compares H.R. 3080 as passed by the House and
S. 601 as passed by the Senate, which is identical to the Senate version of H.R. 3080.
2 Letter from Jo-Ellen Darcy, Assistant Secretary of the Army, Civil Works, to Senator Barbara Boxer, Senator David
Vitter, Representative Bill Shuster, and Representative Nick J. Rahall, II, December 11, 2013, http://www.eenews.net/
assets/2013/12/12/document_daily_03.pdf; hereinafter ASA’s December 2013 letter to conference managers.
3 These amounts represent the project construction cost (including beach nourishment); they do not include operation
and maintenance. These amounts do not represent the same information as a CBO score of the potential budget impact
of authorizing these projects.
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compliance requirements, including the National Environmental Policy Act (NEPA). Independent
peer review was among the “reforms” adopted in WRDA 2007 (P.L. 110-114). The conference
report would raise the standard threshold for performing an independent peer review of a
feasibility study from $45 million total project costs to $200 million, and extend applicability of
the review requirement to studies initiated through 2019.
Expanding Project Delivery and Financing Opportunities. The conference report, like H.R.
3080 and S. 601, would encourage nonfederal opportunities in delivering water resources projects
through provisions on crediting for nonfederal work and increasing opportunities for nonfederal
contributions and nonfederal study and project management. The conference report would require
the ASA to establish a five-year pilot program for nonfederal management of studies and a five-
year pilot program of 15 projects for nonfederal management of project construction. The report
also would consolidate various authorities under which nonfederal entities can perform
construction on water resources projects and allow the federal share of construction costs to be
reimbursed or credited (and credit transferred to other projects). Like S. 601, the conference
report also would establish a pilot program known as the Water Infrastructure Finance and
Innovation Act (WIFIA) to finance water infrastructure projects. The Corps and the U.S.
Environmental Protection Agency (EPA) would administer the pilot program.
Investing in Navigation. The conference report, like H.R. 3080 and S. 601, would encourage
increased spending from the Harbor Maintenance Trust Fund (HMTF). As in S. 601, the
conference report eliminates the 50% nonfederal cost sharing requirement for harbor maintenance
between 45 and 50 feet deep. It modifies prioritization of HMTF funding among different types
of harbors but retains similar provisions contained in H.R. 3080 and S. 601 reserving certain
portions of funds to harbors with less cargo. The conference report, like H.R. 3080 and S. 601,
would not enact changes to inland waterway revenues in general but would increase the threshold
for major rehabilitation efforts on inland waterways, authorize changes to waterway project
delivery, and alter the cost-share for one project (Olmsted Locks and Dam). These changes may
increase the likelihood of Inland Waterways Trust Fund (IWTF) monies being available for use
on other inland waterway construction projects.
Reducing Flood Risks. The conference report would establish a levee safety initiative that would
authorize: Corps technical assistance and training to promote levee safety, Federal Emergency
Management Agency (FEMA) assistance in establishing or improving state and tribal levee safety
programs, and authorize the Corps to provide levee rehabilitation assistance. Elements of the
initiative are similar to provisions in S. 601, but with either no or lower levels of authorizations of
appropriations. Like H.R. 3080 and S. 601, the conference report would require the ASA to
develop national levee safety guidelines and review and update Corps guidelines for vegetation
on levees. Similar to S. 601, the conference report would allow the ASA to repair a levee to the
design level of protection (rather than to pre-storm conditions) or if needed modify the project to
address major deficiencies or implement nonstructural measures. The conference report would
direct the ASA to ensure that part of its levee inspection program provides adequate information
for reaching a levee accreditation decision for purposes of floodplain mapping related to FEMA’s
National Flood Insurance Program (NFIP) mapping.
Restoring and Protecting Aquatic Ecosystems. The conference report would potentially
provide additional direction of various efforts for regional river and coastal restoration (e.g.,
Chesapeake Bay, North Atlantic coastal restoration) and authorize the construction of projects
which have previously been studied in the Everglades and in Coastal Louisiana, among other
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places. Similar to H.R. 3080, it would also add to Corps authority to undertake activities for the
prevention, control, and eradication of invasive species at Corps projects.
Deauthorizing Projects and Managing the Backlog. The conference report would create a one-
time process aimed at deauthorizing previously authorized projects with federal costs-to-complete
totaling $18 billion; the ASA would lead the process, and would provide opportunity for public
input and congressional disapproval. This one-time process and other backlog provisions included
in the conference report combine elements of the deauthorization and backlog management
provisions of H.R. 3080 and S. 601.
Addressing Other Issues. The conference report includes provisions, different from those in S.
601, that would amend the applicability of the Environmental Protection Agency’s oil spill
prevention, control, and countermeasure regulations. The conference report also includes certain
water infrastructure provisions of the Clean Water Act (CWA) that were not included in H.R.
3080 or S. 601. These CWA provisions, while representing the first amendments to CWA Title VI
since 1987, do not address many of the more longstanding or controversial CWA issues. Most of
the CWA provisions included in the conference report address CWA Title VI, which authorizes
grants to states to capitalize state loan programs (State Revolving Funds, or SRFs) for wastewater
treatment facility projects.
The conference report does not include the ocean-related provisions of the House and Senate
bills. H.R. 3080 would have prohibited programs or actions authorized by H.R. 3080 to be used
for furthering implementation of Executive Order 13547 on coastal and marine spatial planning.
S. 601 would have created a National Endowment for the Oceans. Instead, it would authorize the
ASA to undertake studies of Corps projects in coastal zones to enhance ocean and coastal
ecosystem resiliency; it also would authorize the construction of smaller projects or inclusion of
recommendations for congressional authorization in the Annual Report.
Comparison of H.R. 3080, S. 601, and
Conference Report
The remainder of this report provides a side-by-side analysis of selected provisions of H.R. 3080,
S. 601, and the conference report. The selection of provisions addressed herein was based on
attention during congressional deliberations, significance for the Corps and its activities, or policy
differences between the bills. Many of the project-specific or geographically specific provisions
(e.g., provisions of Titles III and V of S. 601, Title IV of the conference report) generally are not
discussed. The Appendix identifies the comparable titles of the two bills and conference report.
The report is divided into the sections shown in Table 1.
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Table 1. Provisions Covered by CRS Report
Sections
Titles and Sections
Titles and Sections
CRS Report Section
of H.R. 3080
of S. 601
of Conference
“Expediting Studies,
101, 102, 103, 104
2033, 2034, 2042
1001, 1002, 1005, 1006,
Environmental Reviews,
1044
and Permits”
“Expanding Project
107, 108, 109, 112, 116, 2011, 2012, 2013, 2025,
1007, 1014, 1015,1016,
Delivery and
117
2032, Title X, 11005
1017, 1018, 1020, 1043,
Finance Opportunities”
5021-5035
“Authorizing Projects and
111, 118, 121, 133, 143, 1002, 1003, 1004, 2003,
1023, 1030, 1036, 1045,
Managing Subsequent
401, 402
2004, 2014, 2055, 4002,
7001, 7002, 7003, 7004
Authorizations”
Title V
“Investing in Navigation”
201, 202, 206, 212, 213, 7003, 7004, 7005, 7006,
2002, 2003, 2004, 2006,
214, 216
7007, 7008, 8003, 8004,
2007, 2101, 2102, 2104,
8005
2105, 2106, 2107
“Reducing Flood Risks”
122, 124, 126, 127, 147
2003, 2020, 2021, 2022,
1030, 1036, 1037, 3001,
2030, 2040, 6004, 6005,
3013, 3014, 3016, 3017,
6007, 6009, Title IX, 11004
3025, 3029,
“Restoring and Protecting
137, 144, 145
2045, 2052, 3018, 5002,
1011, 1039, 4009, 4010,
Aquatic Ecosystems”
5003, 5007
4011
“Deauthorizing Projects
119, 301, 302, 303
2049
6001, 6002, 6003
and Managing the Backlog”
“Addressing Other Issues”
146
Title XII, 13001
1049, 4014, 5001-5013
Expediting Studies, Environmental Reviews,
and Permits
Like both the House and Senate bills, the conference report includes provisions aimed at
expediting water project delivery and permit processing. Most of these provisions intend to
expedite—
• Corps studies by establishing deadlines, schedules, or funding limits for
feasibility studies and eliminating certain study requirements;
• environmental compliance requirements, including primarily provisions intended
to expedite Corps compliance with the National Environmental Policy Act and
outside agency issuance of any permit, review, or other approval required under
any applicable federal law; and
• Corps permitting.
During the House and Senate deliberations, some Members expressed frustration with the cost
and duration of Corps studies. Most Corps feasibility studies are cost-shared 50% federal and
50% nonfederal. The degree to which various factors and requirements contribute to the time it
takes to complete a Corps study is difficult to parse out and attribute to a single environmental
requirement. For example, activities performed to demonstrate compliance with applicable
environmental requirements may occur concurrently to the Corps completing actions required by
other laws (e.g., preparing analyses necessary to determine a project’s economic costs and
benefits). The larger, more complex, and costly the project being studied, often the longer each
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step in the study process may take to complete. Anecdotal evidence indicates that individual
studies may take longer due to disagreements with federal resource agencies or state permitting
agencies, but there are limited data available to determine whether such delays are systemic or
project-specific. The role that Congress plays in authorizing studies and project construction and
the timing of appropriations have been identified as factors having significant effect on the
duration of studies and ultimately project delivery.4 For example, in terms of the project
development process, years may pass between the following steps shown in each bullet:
• approval to initiate a study, to appropriation of federal funds for the study,
• complete reconnaissance study, to initiation of feasibility study,5 and
• ASA transmission to Congress of the feasibility report, to congressional
construction authorization.
At an April 29, 2014, House T&I Subcommittee on Water Resources and Environment hearing,
the Corps witness testified that, while the agency is committed to expediting the Corps planning
process:
certain elements of provisions in the proposed legislation regarding the elimination of
reconnaissance studies, fixed lengths for feasibility studies, project permitting and
environmental streamlining, study authority resolutions, and the application of Independent
External Peer Review, could actually become counterproductive. By constraining the Corps
from exercising the same initiative that led to Civil Works Transformation and Planning
Modernization, certain requirements could lead to a less flexible, overly restrictive program
that reduces efficiency, hinders project approval, and increases the probability of a project
being terminated ... 6
Corps Studies
The conference report would require the Corps to complete feasibility studies within certain time
limits (with more flexibility provided for timing of study completion than in H.R. 3080) and
federal funding limits. Like §104 of the House bill, the conference report would eliminate the
requirement to prepare a separate reconnaissance study and instead direct the Corps to include
4 On June 5, 2013, Major General Michael Walsh, Deputy Commanding General for Civil and Emergency Operations,
testified at the House T&I Subcommittee on Water Resources and Environment’s hearing “A Review of the United
States Army Corps of Engineer’s Reports” (testimony available at http://transportation.house.gov/hearing/review-
united-states-army-corps-engineers-chief%E2%80%99s-reports). In response to various questions from several
Members of Congress, the General discussed issues that may delay project delivery, as well as efforts being
implemented by the Corps to streamline project delivery. Processes or procedures related to meeting environmental
compliance requirements were not included among those that delayed projects or that were being changed to accelerate
delivery, he testified. The limited availability of funds necessary to continue the number of projects authorized for
construction was identified as the primary factor affecting the timing of project delivery. When asked specifically
whether or which environmental regulatory requirements implemented by outside agencies could be eliminated to
expedite project delivery, the General stated that he could not identify a single set of requirements established by
Congress that he would suggest eliminating to streamline the process.
5 A feasibility study cannot be begun for most projects until a feasibility cost-share agreement with the nonfederal
entity has been negotiated and signed. Also, beginning a feasibility report may be considered as starting a new study
phase during Administration budget development; ongoing studies, rather than studies entering new phases, have been
prioritized for appropriations in recent years.
6 U.S. Congress, House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment, Army Corps of Engineers Chief’s Reports, 113th Cong., 2nd sess., April 29, 2014.
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analysis required for those studies (preliminary analysis of the federal interest and the costs,
benefits, and environmental impacts of the project) in a feasibility report. Like §2034 of the
Senate bill, the conference report would require the Corps to develop a detailed project schedule
for certain milestones needed to complete feasibility studies. Selected provisions related to study
acceleration are shown in Table 2.
Findings and Responses to Independent Peer Review of Corps Studies
Whether independent peer review provisions of WRDA 2007 (P.L. 110-114) have improved Corps projects and
decision-making continues to be discussed. In a November 2013 Corps report on peer review, the Corps stated:
only one significant change to any project study recommended plan has resulted from IEPR. A review
comment on the Olmsted Lock and Dam exposed a flaw in the treatment of contingencies within the
cost estimate. Correcting the cost estimate revealed a significant underestimation of the costs and
necessitated revising the report supporting a reauthorization request required under section 902 of
WRDA 1986, as amended. Overal , most review comments have focused on the need for improved
documentation (e.g., assumptions, methods, and rationale) and additional or more rigorous analyses.
The report also stated that peer review panel reports covering “68 project studies have produced 1155 total
comments, with 353 considered high significance.” Average cost per review was $175,000. The Corps responds, but
does not always adopt a panel’s comments. For example, a 2013 panel made a high significance comment that the
“Federal interest has not been demonstrated ... because a multi-port analysis assessing competition among regional
ports is not provided.” In 2014, the Corps chose not to adopt this comment explaining that: “it makes the most sense
to assume the net effect this [regional competitor port] interplay would be equilibrium. As such it is valid to assume
that each seaport will continue to retain its historical share of regional cargo...shifting cargo benefits among regional
ports is excluded from the decision making process.”
In a 2010 Corps report on peer review, the Corps stated that a high significance comment “describes a fundamental
problem with the project that could affect the recommendation, justification, or success of the project.” The 2010
report included per project review costs and summarized Corps responses. At that time, the project with the highest
review cost was the Louisiana Coastal Protect and Restoration project at $586,000; changes made to the project in
response to panel findings included: additional analyses to address risk assessments of structural measures, additional
documentation of tradeoffs to inform plan selection and address tradeoffs, and actions to coordinate activities across
coastal Louisiana programs and business lines. The least costly review was $97,000. This 2010 Corps report found: “A
frequent comment provided to the [coastal storm damage reduction] was that the design analyses were deficient and
that a more refined analysis of design and build needed to be conducted” and “The reviewers of the [deep draft
navigation] reports commented that assumptions regarding future business (e.g., trucking costs, longshoreman
association fees, cement industry, transportation costs) and the benefits provided were not supported by analysis.”
A 2012 Government Accountability Office (GAO) report on Corps’ peer review identified that in addition to direct
costs of peer reviews, Corps resources also are used to manage reviews; the GAO report also stated: “the addition
of peer review to the Corps study process has resulted in indirect costs by altering project study schedules to al ow
for time needed to complete peer reviews.” GAO found: “By choosing to apply peer review late in the project study
process, the Corps has effectively chosen to not use the results of peer review to enhance its decision-making
process and ensure selection of the most effective project alternatives.” GAO recommended: “the Corps to, among
other actions, better track peer review studies, revise the criteria for determining which studies undergo peer review
and the timing of these reviews, and improve its process for ensuring contractor independence. “ The 2013 Corps
peer review report documents progress made on GAO’s recommendations.
Sources: U.S. Army Corps of Engineers, Report on the Implementation of Independent Peer Review, Nov. 2013, and
Summary of Independent External Peer Review Final Panel Comments, Nov. 5, 2010; and Memorandum from L.G. Thomas
P. Bostick, Chief of Engineers, to Assistant Secretary of the Army (Civil Works), on Jacksonville Harbor, Duval
County, Florida - Final USACE Response to Independent External Peer Review, April 16, 2014,
http://www.usace.army.mil/Missions/CivilWorks/ProjectPlanning/CompletedPeerReviewReports.aspx; U.S. GAO, Peer
Review Process for Civil Works Project Studies Can Be Improved, GAO-12-352, March 8, 2012.
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Independent peer review was among the “reforms” adopted in WRDA 2007 (P.L. 110-114).7 The
conference report would raise the standard threshold for performing an independent peer review
of a feasibility study; it would go from $45 million total project costs to $200 million. Like S.
601, the conference report would extend the requirement for independent peer review from those
studies initiated between 2007 and 2014 to those initiated between 2007 and 2019, and amend the
congressional requirements on the reporting on decisions not to perform peer review and
distribution of the results of the peer review and the agency’s responses.
Environmental Reviews
Project acceleration provisions in the conference report (§1005) are intended to expedite the
Corps’ overall project development by expediting one element of the feasibility report process—
preparation of documents necessary to comply with the National Environmental Policy Act of
1969 (NEPA, 42 U.S.C. 4321 et seq.). To do so, the conference report (§1005(a)) would amend
Section 2045 of WRDA 2007 (P.L. 110-114, codified at 33 U.S.C. 2348) to replace existing
“Project Streamlining” requirements.
The NEPA compliance process is sometimes referred to as the environmental review process.
Broadly, NEPA requires federal agencies to fully consider a project’s significant impacts on the
environment, and to inform the public of those impacts, before making a final decision about the
project.8 Provisions in the conference report (§1005(a)) would expand the definition of
“environmental review process” to include the “process for and completion of any environmental
permit, approval, review, or study required for a water resources project under any Federal law
other than NEPA.”9 Provisions in the conference report, however, would apply primarily to
actions taken by the Corps within the context of demonstrating compliance with NEPA.
In accordance with its broader obligation to determine a project’s potential economic, social, and
environmental benefits and detriments, Corps planning is performed in accordance with its
“Environmental Evaluation and Compliance” process. That process is implemented by the Corps
to ensure that activities necessary to identify and demonstrate compliance with any applicable
environmental requirements are integrated into the Corps’ overall planning process. The
Environmental Evaluation and Compliance process includes steps necessary to ensure compliance
with environmental requirements that arise from local, tribal, state, or federal laws and
regulations that may apply as a result of project-specific impacts to protected resources. The
NEPA compliance process generally forms the framework that the Corps uses to identify
applicable project-specific requirements and to coordinate with outside agencies, if necessary, to
comply with those requirements. For projects that require a feasibility study, the Corps usually
must prepare an environmental impact statement (EIS), pursuant to NEPA. Generally, it is Corps
7 Another “reform” included in WRDA 2007 related to changes in how the Corps mitigates its project’s environmental
impacts. The conference report adopts provisions related to mitigation (§1044 and §1045), which are similar to
provisions in S. 601. The conference report also includes language (§1028) authorizing the Corps to participate in cost-
shared fish habitat measures at Corps projects with fish hatcheries that have been authorized to compensate for fish
losses.
8 Regulations implementing NEPA, applicable to all federal agencies, were promulgated by the Council on
Environmental Quality (CEQ) under 40 C.F.R. 1500-1508. Corps procedures to implement NEPA supplement the CEQ
regulations, at 33 C.F.R. 230, take into account issues specific to Corps projects, including requirements explicitly
applicable to the preparation of a feasibility study.
9 See also the definition of “project study,” in the conference report (§1005(a)), that would refer to feasibility study
carried out under 33 U.S.C. 2282.
Congressional Research Service
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
practice to ensure that any outside agency consultations and decisions regarding any permits or
approvals are complete before a feasibility study/EIS is complete.
Many of the project acceleration provisions in the conference report (§1005(a)) pertain to outside
agency involvement in the NEPA process or in making decisions under other environmental laws.
Those provisions are largely intended to coordinate actions or input from outside federal agencies
which have some expertise regarding an affected resource or jurisdiction by law to control the
impacts to that resource (e.g., an agency authorized to issue a permit or other approval associated
with an impact to that resource).10
Currently, Section 2045 of WRDA 2007 (33 U.S.C. 2348) requires that the Corps establish a
coordinated review process for any water resources project that requires the preparation of a
feasibility study and an EIS under NEPA. When implementing that process, the Corps was
authorized to establish a schedule for federal, state, or local government agencies or Indian tribes
to process, approve, or issue all reviews, analyses, opinions, permits, licenses, and approvals
required for a water resources project (which is also allowed under existing regulations
implementing NEPA).11 The conference report would similarly apply to project studies that
require the preparation of an EIS under NEPA, but could also be applied to other projects as
deemed appropriate by the ASA.
As in the existing Section 2045, many of the provisions in the conference report would codify
requirements that are largely similar to existing regulations implementing NEPA12. However,
some provisions may add to or change existing Corps practices or requirements in order to
demonstrate compliance with NEPA, or change outside agencies’ procedures for completing their
respective decision-making processes. Selected provisions that may result in such changes are
listed in Table 3. While the conference report may change certain procedures applicable to
environmental reviews, none appear to substantially affect the Corps’ obligation to comply with
existing environmental requirements (established under NEPA or any other environmental law)
that may apply to a project.
Until the Corps interprets the project acceleration provisions and integrates them with its current
Environmental Evaluation and Compliance process, it is difficult to determine whether the
procedural changes would expedite environmental reviews. Some of provisions could add time to
the Corps’ already-complex planning process. For example, the Corps would be required to
prepare a coordination plan to coordinate and schedule outside agency participation in the
environmental review process (see Table 3). When preparing the plan, the Corps would be
10 The Corps is obligated to coordinate its analysis of project impacts with other federal agencies that have jurisdiction
over any affected resource or that may have expertise necessary to assess the degree to which the project may have a
regulated impact. Those agencies would not necessarily be authorized to “approve” or “disapprove” a Corps project.
However, they may be required under federal law to specify conditions under which a project may proceed (e.g., in the
form of a permit or certification) or methods to mitigate impacts to a protected resource.
11 See CEQ requirements applicable to time limits, at 40 C.F.R. 1501.8.
12 Many provisions in the conference report (§1005) would codify requirements largely similar to requirements
established by CEQ in its regulations implementing NEPA (see “NEPA and Agency Planning” requirements in 40
C.F.R. Part 1501, “Elimination of duplication with state and local procedures” at 40 C.F.R. 1506.2, and “Agency
procedures” at 40 C.F.R. 1507.3). These include provisions in §1005 pertaining to the project review process, lead
agency responsibilities, participation of the lead and cooperating agencies, programmatic compliance, memoranda of
agreement for early coordination, and development of categorical exclusions. That is, the conference report would
codify requirements similar to those currently implemented by the Corps, in accordance with previous directives from
CEQ.
Congressional Research Service
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
required to set deadlines for outside agencies to complete the environmental review process—
something the Corps can do currently on a project-by-project basis. Those deadlines may be
extended for “good cause.” Other than requiring the Corps to prepare an additional planning
document, this provision may not substantially alter the Corps’ existing procedures to coordinate
outside agency actions.
The conference report (§1005(a)) would also establish unique requirements applicable to the
NEPA compliance process, in general, but may have limited impact on the Corps’ NEPA process,
in particular. Specifically, financial penalty provisions would create a unique system of
reprogramming a federal agency’s funding if that agency did not reach a decision on a permit,
license, or other approval by a certain deadline (the later of 180 days after an application for the
approval is complete; and the Corps completes the NEPA process). As discussed above, the Corps
generally does not complete the NEPA process until permits and other required approvals are in
place. Also, approvals required for Corps projects, including those required under federal
environmental laws, are most often issued by state, tribal or local agencies, not federal agencies.
Given the timing in which the Corps generally has such approvals in place and the role that
federal agencies generally have in issuing such approvals for Corps projects, there may be limited
circumstances in which the financial penalty provisions may be invoked.
The conference report also includes a provision (§1005(b)) that would apply to actions associated
with the repair, reconstruction or rehabilitation of a project that is in operation or under
construction when damaged in an event associated with a major disaster or emergency declared
by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act,
as amended (42 U.S.C. 5121 et seq.). Such actions would be processed as a categorical exclusion
(CE), pursuant to CEQ regulations (40 CFR 1508.4). According to those CEQ regulations,
projects known by an agency to have no significant impact on the environment may be
categorically excluded from the requirement to prepare an environmental assessment or EIS,
under NEPA. Those regulations also provide for conditions under which an agency may be
required to determine whether a given project involves “extraordinary circumstances” that may
result in significant impacts (e.g., circumstances that may require additional review under NEPA).
The conference report (§1005(b)) may not substantially change existing Corps practices. In its
procedures implementing NEPA, the Corps explicitly identifies “activities at completed Corps
projects” as actions processed as CEs, regardless of whether those activities are undertaken in
response to an emergency.13 If the action is to address a project “under construction,” any
additional NEPA compliance may not be required, since the impacts of that project would
presumably be evaluated in an existing NEPA document. Also, the Stafford Act statutorily
exempts certain disaster-related activities from NEPA, including the repair, restoration,
reconstruction, or replacement of a damaged public facility.14 As a result, some disaster–related
repairs undertaken by the Corps could potentially be waived from NEPA. Designating a project as
a CE is not a waiver from NEPA. Until the Corps interprets this directive, it is not clear whether it
could result in a project being subject to some, albeit limited, level of NEPA review when it
otherwise may have been subject to no review, pursuant to the Stafford Act.
13 See 33 C.F.R. § 230.9(b).
14 The NEPA exclusion is specified at 42 U.S.C. 5159; the actions potentially subject to that waiver involving the
repair, restoration, and replacement of existing facilities are specified at 42 U.S.C. 5172.
Congressional Research Service
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Corps Permitting
In addition to undertaking water resources projects, the Corps also has regulatory responsibilities
related to activities that may affect navigable waters and wetlands. H.R. 3080 and S. 601 each
included provisions that could be identified as accelerating or streamlining the Corps’ regulatory
program as shown in Table 2. Both bills proposed eliminating the expiration of a Corps authority
that allows the agency to accept funds from nonfederal public entities to expedite the processing
of Corps permits for projects serving a public purpose. The authority was originally set to expire
in 2003, but has been extended multiple times. Under current law the authority is set to expire
December 31, 2016. Additionally, H.R. 3080 would have expanded the eligibility of entities that
can provide funds to the Corps to expedite its processing of permits. The current authority is
limited to nonfederal public entities. H.R. 3080 would have added public-utility companies and
natural gas companies. In December 2010, Congress clarified in P.L. 111-315 that private entities
were not eligible entities under this authority after concerns that a Corps district was allowing
limited use of the authority by private entities at the request of public entities.15 S. 601 would not
expand the eligible entities for this authority; instead, S. 601 would have required the Corps take
steps to improve the transparency, reporting, and consistency of how this authority is
implemented.16 The conference report (§1006) would expand the existing authority to allow
public-utility companies and natural gas companies to provide funds to the Corps to expedite the
agency’s processing of permits related to a project or activity for a public purpose; the conference
report also would extend the existing authority indefinitely by eliminating its expiration, with the
limitation that the authority for public utility companies and natural gas companies expires seven
years after enactment.
For Further Reading
CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project
Planning: Background and Issues for Congress, by Linda Luther.
CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations,
and Activities, by Nicole T. Carter and Charles V. Stern.
15 Although there were no congressional reports that accompanied the enacted bill, the text of the bill had been included
in a larger bill (H.R. 5892, Water Resources Development Act of 2010) and discussed in the accompanying report,
H.Rept. 111-654; the report stated: “the Committee has expressed concern that allowing a regulated entity to contribute
to the cost of its regulator has the potential to affect the objectivity of that regulatory.”
16 In a 2010 letter to the then-Chairman of House T&I, the Government Accountability Office (GAO) concluded that
the Corps had made some progress on GAO’s 2007 recommendations to improve implementation of the authority, but
that it had not fully developed an oversight effort for district implementation of this authority (GAO, Status of U.S.
Army Corps of Engineers Effort to Implement GAO’s 2007 Recommendations Regarding Its Section 214 Authority,
GA)-10-385R, February 19, 2010, http://www.gao.gov/assets/100/96553.pdf).
Congressional Research Service
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Table 2. Select Expediting Study and Permit Provisions
Topic
H.R. 3080
S. 601
Conference
Feasibility
§101 would require feasibility studies be
§2032 would require that a feasibility study be
§1001would require feasibility studies be completed within
Study Limits
completed within 3 years of initiation, have
completed within 3 years of initiation and at a
3 years of initiation (unless the ASA determines a study is
and
a maximum federal cost of $3 million, and
maximum federal cost of $3 million. If the ASA
too complex to comply with this requirement), have a
Termination
be concurrently reviewed within the
determines the study cannot be conducted
maximum federal cost of $3 million, and be concurrently
Corps. The Corps may extend the study
accordingly due to its complexity, nonfederal
reviewed within the Corps. §1001 would deauthorize any
period to up to one year, but if not
entities shal be notified and a new project and
feasibility study that is not completed 7 years after
complete after that extension, the
cost timeline provided. No change to existing
initiation. §1001 would require that the ASA, within 90 days
Assistant Secretary of the Army (Civil
study deauthorization process (33 U.S.C.
of initiating a feasibility study, begin the processes for
Works) (ASA) shal notify nonfederal
2264).
federally mandated reviews; convene a meeting of all
partner and Congress that authorization
federal, tribal, and state agencies that may be required to
for the feasibility study will be terminated.
conduct a reviews and analyses for the study; and provide
the information for such reviews and analyses in a thorough
and timely manner. The ASA is to report on
implementation 18 months and again four years after
enactment. The conference report makes no changes to
the existing study deauthorization process in 33 U.S.C.
2264.
Expediting
§102 would expand an existing authority
§2042 would extend the authority indefinitely
§1006 would expand an existing authority (33 U.S.C. 2201
Corps Permit
(33 U.S. 2201 note, which currently is
by eliminating its expiration. It would clarify
note) which currently is limited to nonfederal public
Processing
limited to nonfederal public entities) to
the Corps requirements for public availability
entities to allow public-utility companies (as defined in 42
allow public-utility companies and natural
and consistency of information regarding the
U.S.C. 16451) and natural gas companies (as defined in 42
gas companies (as defined in 42 U.S.C.
use of this authority and require the agency to
U.S.C. 16451 and including a person engaged in the
16451) to provide funds to the Corps to
produce an annual report on its use.
transportation of natural gas in intrastate commerce) to
expedite the agency’s processing of permits
provide funds to the Corps to expedite the agency’s
related to a project or activity for a public
processing of permits related to a project or activity for a
purpose. §102 also would extend the
public purpose. §1006 also would extend indefinitely the
authority indefinitely by eliminating its
existing authority by eliminating its current expiration, with
expiration.
the limitation that the authority for public utility companies
and natural gas companies expires 7 years after enactment.
§1006 would require that GAO, within 4 years, study
implementation of this authority for these two types of
companies. §1006 would clarify the Corps requirements for
public availability and consistency of information regarding
the use of this authority and require the agency to produce
an annual report on its use.
CRS-11
Topic
H.R. 3080
S. 601
Conference
Feasibility
No comparable provision.
§2034 would amend requirements applicable
§1002, among other things, would amend requirements
Report
to the preparation of Corps reports (33 U.S.C. applicable to the preparation of Corps reports (33 U.S.C.
Schedule
2282) to require the preparation of a
2282) to require the preparation of a “Detailed Project
“Detailed Project Schedule” that identifies
Schedule” identify milestones for study completion and
milestones needed to complete a feasibility
establish deadlines to reach those milestones. For any
report and establishes deadlines to reach those missed deadline, the Corps would be required to submit a
milestones. For any missed deadline, the Corps report to the nonfederal partner detailing why it was
would be required to submit a report to the
missed.
nonfederal partner detailing why it was missed.
Consolidated
§104 would repeal existing directive (33
No comparable provision.
§1002, among other things, would repeal existing directive
Reconnais-
U.S.C. 2282(b))to the ASA to prepare
to the ASA to prepare reconnaissance studies, like H.R.
sance and
reconnaissance study before preparing a
3080.
Feasibility
feasibility study; and amend requirements
Studies
applicable to the contents of feasibility
reports to require the inclusion of
preliminary analysis previously required for
reconnaissance studies.
Independent
No comparable provision.
§2007 would amend the independent peer
§1044 would raise the standard trigger for independent
Peer Review
review requirements for feasibility studies from peer review of feasibility studies from projects estimated to
Changes
applying to studies initiated between 2007 and
cost $45 million to $200 million, while extending the
2014 to those initiated between 2007 and
requirement for such review for 12 years from 2007 (i.e.,
2019. It also would provide amended direction
through 2019). §1044 would also alter the peer review
on reporting on reasons for not initiating a
requirements for reporting and distribution similar to S.
peer review and distribution of the results of
601.
the peer review and the agency’s responses.
Source: CRS.
CRS-12
Table 3. Select Provisions Intended to Expedite Environmental Reviews
Topics H.R.3080
S.601
Conferencea
Project
§103(b) would amend and replace Section 2045 §2033 would also amend Section 2045 of
§1005(a) would amend and replace Project
Acceleration of WRDA 2007 (33 U.S.C. 2348, Project
WRDA 2007 to establish new Project
Streamlining provisions in Section 2045 of
Streamlining ) to create Streamlined Project
Acceleration procedures. In addition to project
WRDA 2007 (33 U.S.C. 2348) with new
Delivery procedures that would apply project
studies that require an EIS, the Secretary would Project Acceleration procedures intended to
studies, initiated after enactment, that require
be authorized to apply the procedures to other expedite compliance with NEPA and other
the preparation of an EIS under NEPA.
projects, as the Secretary deems appropriate.
environmental requirements. Similar to S. 601,
the procedures would apply to project studies
(i.e., projects that require the preparation of a
feasibility study) that require the preparation of
an EIS, but also may be applied to other
projects as the ASA deems appropriate.
(Selected amendments to Section 2045 are
discussed below.)
Coordination §103(b) includes “Coordinated Reviews”
§2033 includes “Coordinated Reviews”
§1005(a) includes “Coordinated Reviews”
Plan and
provisions, proposed under Section 2045(f),
provisions, proposed under Section 2045(j),
provisions, proposed under Section 2045(g),
Deadlines
that would require the Corps to consult with
that would require the development of a
that would require the Corps to consult with
relevant outside agencies to establish a
Coordination Plan for purposes similar the plan and with the concurrence of the project
“Coordination Plan” and “Schedule” to
required in H.R. 3080, but with no separate
sponsor and each cooperating agency to
coordinate the timing of public and agency
provisions applicable to a required schedule.
establish a Coordination Plan to coordinate
participation in the environmental review
Instead, the Corps would be required to
public and agency participation in the
process.
incorporate the plan into the project schedule
environmental review process. Similar to
milestones established in the Detailed Project
provisions in S. 601, the Corps would be
Apart from potential timeframes established in
Schedule, proposed in §2034 (see above).
required to incorporate the plan into the
the schedule, the Corps would be required to
Detailed Project Schedule. The Conference
establish “comment deadlines” for outside
Like H.R. 3080, deadlines would be established
report would specify factors to be considered
agencies to comment on a draft EIS and “other
for comments on a draft EIS or “other
when establishing a schedule for completion of
comment periods” that may be associated with
comments,” but would also specify conditions
the environmental review process, largely
the environmental review process. Also,
under which those deadlines could be
similar to the proposed factors to be
proposed Section 2045(f)(4) proposed
extended. Provisions applicable to “deadlines
considered in H.R. 3080, with the exception
“deadlines for decisions under other laws.” The for decisions under other laws” would be
that the schedule must be completed as
provision includes deadlines for outside federal
included, but would use deadlines established
practicable, but not later than 45 days after the
or nonfederal agencies to make a
as part of a Coordination Plan for an individual
close of the public comment period for a draft
determination regarding or to approve or
project, not a statutory deadline applicable to
EIS (this directive is largely similar to a
disapprove a project study. Separate statutory
al projects. In contrast to H.R. 3080, if an
requirement proposed in S. 601 that was
deadlines would be set for decisions required
agency missed a deadline, the Corps would be
included among the Issue Identification and
either before or after the NEPA process is
required to report that missed deadline to
Resolution provisions in proposed Section
complete. If no action is taken by the agency
Congress, not close the record on the
CRS-13
Topics H.R.3080
S.601
Conferencea
within the require timeframe, the Corps would
decision.
2045(k), discussed below).
be authorized to close the record for the
project as it relates to that decision.
Provisions applicable to the establishment of
deadlines for comments on a draft EIS, “other
comments,” and decisions under other laws
would be largely similar to those in the S. 601.
Dispute
§103(b) includes “Issue Identification and
§2033 includes “Issue Identification and
§1005(a) includes “Issue Identification and
Resolution
Resolution” provisions,” proposed under
Resolution” provisions, proposed under
Resolution” provisions, proposed under
Procedures
Section 2045(g), that would that would
Section 2045(k), that would establish
Section 2045(h), that are, with a few
establish procedures intended to identify and
procedures to resolve disputes between the
exceptions, largely similar to those proposed in
resolve potential disputes that may arise
Corps and outside federal and nonfederal
S. 601. One exception is that there would be
between the Corps and outside federal and
agencies involved in the project. Unique to the
no multi-tiered dispute resolution process.
nonfederal agencies involved in the project.
Senate proposal, S. 601 would allow the
Instead, the Secretary may resolve an issue
Secretary, not later than 45 days after the close with the heads of other relevant federal
of the public comment period for a draft EIS, to agencies.
convene a meeting with the project sponsor
and relevant outside agencies (federal and
nonfederal) to establish a schedule to complete
decisions on the project. Unlike H.R. 3080, S.
601 includes requirements applicable to a
multi-tiered dispute resolution process, that
could be initiated by the Secretary, and that
could potential y reach the Council of
Environmental Quality or the President.
Financial
No comparable provisions.
§2033 includes “Financial Penalty Provisions,” in §1005(a) includes “Financial Penalty Provisions,”
Penalty
the “Issue Identification and Resolution”
in the “Issue Identification and Resolution”
Provisions
provisions proposed under Section 2045(k)(5),
provisions proposed under Section 2045(h)(5),
that would specify conditions under which a
that are largely similar to those proposed in S.
federal agency may be fined if it failed to render 601.
a decision, required under any federal law,
within the later of 180 days after—the Corps
completes the NEPA process; and an
application for a required permit, license, or
approval is complete. Among other provisions,
S. 601 specifies the dol ar amount of potential
fines and the limit on such fines that could be
imposed on a single agency office for a given
project, the total amount assessed in a single
CRS-14
Topics H.R.3080
S.601
Conferencea
years on a single agency office, and conditions
under which an agency may not be fined.
Statute of
§103(b) includes “Timing of Claims” provisions,
No comparable provision.
§1005(a) includes “Timing of Claims”
Limitations
proposed under Section 2045(i), that would
provisions, proposed under Section 2045(k),
that would bar judicial review of a permit,
that are largely similar to those in H.R. 3080,
license, or other approval issued by a federal
with the exception that judicial review of a
agency for a project study unless it is filed
permit, license, or other approval issued by a
within 150 days publication of a notice in the
federal agency for a project study would be
Federal Register announcing that the permit,
barred unless it is filed within three years after
license, or other approval is final pursuant to
the publication of a notice in the Federal
the law under which the agency action is taken,
Register announcing that approval. The
unless a shorter time is specified in the Federal
conference report specifies that this provision
law which allows judicial review.
would create no new right to judicial review or
limit a right of review if someone was found to
have violated a permit, license, or other
approval. A new statute of limitations would
apply if a supplemental EIS was prepared.
Categorical
§103(c) would specify that the repair,
No comparable provision.
§1005(b) includes provisions largely similar to
Exclusions in reconstruction, or rehabilitation of a water
those proposed in H.R. 3080, with the
Emergencies
resources project, operating or under
exception that the categorical exclusion would
construction when damaged by an event
apply to such projects if commenced within
related to a major disaster or emergency, as
two years of the date of the
declared by the President pursuant to the
disaster/emergency declaration.
Robert T. Stafford Disaster Relief and
Emergency Assistance Act, would be
categorical y excluded from the requirement to
prepare an environmental assessment or EIS
under NEPA, pursuant to 40 C.F.R. 1508.4.
Source: CRS.
a. The provisions in §1005(a) are presented as amendments to Section 2045 of WRDA 2007 (i.e., not to 33 U.S.C. 2348). To more easily identify provisions being
discussed in this table, many of those provisions are additional y identified by their respective subsection in Section 2045.
CRS-15
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Expanding Project Delivery and
Finance Opportunities
Frustrations with the pace of Corps studies and construction, in part shaped by the pace of
congressional authorization and limitations on available federal appropriations, has fostered
interest in nonfederal entities, including private interests, having greater roles in project
development, construction, and financing. The challenge is whether nonfederal resources can be
leveraged while focusing current and future federal funds on those activities most in the national
interest.
Nonfederal Work and Leadership on Studies and Projects
Like H.R. 3080 and S. 601, the conference report includes multiple provisions to encourage and
manage nonfederal participation in project delivery. Table 4 identifies provisions for permitting,
crediting, and reimbursing for nonfederal work, and provisions that establish pilot programs for
nonfederal management and financing. The conference report consolidates most of the authorities
for nonfederal leadership for water resources studies and construction under two authorities, 33
U.S.C. 2231 and 33 U.S.C. 2232.17 The conference report (§1014), like H.R. 3080, may provide a
mechanism for nonfederal entities to initiate work on a project which has a completed feasibility
study, the milestone prior to a Chief’s Report. A Chief’s Report consists of the approval and
recommendations for a project by the Corps’ Chief of Engineers. The nonfederal entity would be
eligible to receive credit or reimbursement if Congress subsequently authorizes the project. The
conference report also would require the ASA to establish a 5-year pilot program for nonfederal
management of studies and a 5-year pilot program of 15 projects for nonfederal management of
project construction.
Water Infrastructure Finance and Innovation Act (WIFIA)
Like S. 601, the conference report includes the Water Infrastructure Finance and Innovation Act
(WIFIA), which would authorize a five-year pilot program for loans and loan guarantees for flood
damage reduction projects assisted by the Corps and public water supply and wastewater projects
assisted by the Environmental Protection Agency (EPA). The WIFIA concept is modeled after a
similar program that assists transportation projects, the Transportation Infrastructure Finance and
Innovation Act, or TIFIA, program. H.R. 3080 did not include comparable provisions. In a letter
to the conferee managers, the Administration had expressed concerns with the WIFIA proposal in
S. 601, “which would expand the Environmental Protection Agency’s and the Corps’ role in local
water infrastructure projects and not provide Federal assistance in the most efficient manner.”18
The conference report adopts the Senate’s WIFIA provisions with some additions and
modifications, as shown in Table 5. Notably, the conference report would expand the types of
17The extent to which the annual use of these authorities may be limited is not addressed by the conference report; that
is, no changes are made to 33 U.S.C. 2221 which states that agreements proposed for execution by the ASA or the
Corps under various authorities, including 33 U.SC. 2231 and 33 U.S.C. 2232, shall be limited to total credits and
reimbursements for all applicable projects not to exceed $100,000,000 in each fiscal year.
18 See footnote 2.
Congressional Research Service
16
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
projects that the Secretary of the Army may support with WIFIA assistance to include projects for
flood damage reduction, hurricane and storm damage reduction, environmental restoration,
coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation
improvement. Responding to concerns raised by some groups that WIFIA could impair and
diminish support for wastewater and drinking water State Revolving Fund (SRF) programs, the
conference report includes language requiring EPA, when the agency receives applications for
WIFIA assistance, to give state infrastructure financing authorities a right of “first refusal” to
finance the project. Finally, the conference report would reduce the authorized funding for the
pilot program from $250 million total for each agency ($50 million per year) to $175 million total
for each agency (beginning with $20 million for FY2015 and increasing to $50 million for
FY2019).
For Further Reading
Congressional Distribution Memorandum, available from author: “Credit for Nonfederal Work on
Army Corps Projects” by Nicole T. Carter, April 12, 2013.
CRS Report R43315, Water Infrastructure Financing: Proposals to Create a Water Infrastructure
Finance and Innovation Act (WIFIA) Program, by Claudia Copeland.
Congressional Research Service
17
Table 4. Select Provisions to Expand Project Delivery and Financing Opportunities
Topic
H.R. 3080
S. 601
Conference
Permits for
§107 would establish benchmarks
No comparable provision.
§1007 includes a provision similar to H.R. 3080.
Nonfederal
(e.g., approval of complete
Work at
applications in 45 days) and
Existing Corps processes to expedite permits that
Projects
would approve nonfederal
modifications to Corps projects,
known as §14 applications.
Nonfederal
No comparable provision.
No comparable provision.
§1014 would replace an existing authority (33 U.S.C. 2231) for nonfederal
Study of
studies of harbor projects with a similarly structured authority that applies to
Projects
all water resources development projects.
Nonfederal
§108 would expand an existing
No comparable provision.
§1014 would replace an existing authority for nonfederal construction of
Construction authority (33 U.S.C. 701b-13) for
harbor projects (33 U.S.C. 2232) with a similarly structured authority that
of Authorized nonfederal construction of
applies to all water resources development projects. In addition to the existing
Projects
authorized projects to all type of
limits in 33 U.S.C. 2232, §1014 would allow the ASA to establish conditions on
Corps projects and would require
the project. Unlike the existing language in 33 U.S.C. 2232 which requires that
that work be performed consistent
the ASA determine the project is “economically justified and environmentally
with the laws and regulations that
acceptable,” §1014 would require the ASA to make a determination on
apply to Corps construction (e.g.,
whether the “project is feasible.” Unlike the existing language in 33 U.S.C. 2232
Davis-Bacon Act wage
which only allows for reimbursement for the federal share incurred by the
requirements would apply).
nonfederal entity without interest, §1014 would al ow for reimbursement,
credit, and transfer of credit to a different project; however, it does not specify
whether this is with or without interest. §1014 would add a requirement that
the ASA notify House T&I and Senate Environment and Public Works (EPW)
Committees when a nonfederal entity notifies the ASA of its intent to
construct a project using this authority. §1014 would condition any credit or
reimbursement for the federal share of costs on the ASA determining that all
“Federal laws and regulations applicable to the construction of a water
resources development project, and any conditions identified” by the ASA
were complied with during construction.
CRS-18
Topic
H.R. 3080
S. 601
Conference
Credit in Lieu §108 would al ow the nonfederal
§2013 would al ow nonfederal
§1022 would al ow a nonfederal entity undertaking construction under 33
of Reimburse- entity undertaking work under 33
entities that construct authorized
U.S.C. 701b-13 before the date of enactment (§1014 would repeal 33 U.S.C.
ment
U.S.C. 701b-13 to receive credit or
flood damage reduction projects to
701b-13) to receive credit or be reimbursed for the federal share of costs. The
be reimbursed for the federal share
receive credit (in lieu of the federal
credit could be transferred to other flood damage reduction studies or
of costs. The credit could be
reimbursement) for the federal
projects of the nonfederal entity.
transferred to any other authorized
share of project costs and to
study or project of the nonfederal
transfer that credit to other flood
entity.
damage reduction projects or
studies.
Repeal of
§108 would repeal provisions of
No comparable provision.
§1014 would repeal provisions of existing law authorizing the ASA to review
Nonfederal
existing law authorizing the ASA to
nonfederal studies and construction of specific types of shore protection and
Study and
review nonfederal studies and
flood protection projects (33 U.S.C. 426i-1, 33 U.S.C. 2232 note, 33 U.S.C.
Construction construction of specific types of
701b-13. These project types (along with ecosystem restoration and other
Authorities − shore protection and harbor
Corps project purposes) appear to be encompassed within the definition of a
Consolidation projects (33 U.S.C. 2232, 33 U.S.C.
water resources development project used in §1014 for eligibility under the
of Authorities 426i-1, 33 U.S.C. 2232 note)
new 33 U.S.C. 2232 that would be authorized. §1014 includes a savings
provision stating that §1014 would not affect existing agreements under these
authorities or the existing authority in 33 U.S.C. 2232.
Maintenance
§108 would require that the ASA
§2032 would al ow the ASA to
§1014, largely similar to the existing authority in 33 U.S.C. 2232, would require
of Navigation be responsible for operation and
assume operation and maintenance
that the ASA be responsible for operation and maintenance (consistent with
Projects
maintenance (consistent with
responsibilities of a navigation
standard cost-sharing requirements) of a federally authorized harbor or inland
Constructed
standard cost-sharing requirements) channel deepened by a nonfederal
harbor constructed by a nonfederal entity if prior to construction certain
by Nonfederal of an authorized harbor or inland
entity prior to Dec. 31, 2012, if
criteria are met, including that the project is feasible, and after construction
Entity
harbor project constructed by a
certain criteria are met (e.g.,
that the ASA finds that the project remains feasible and was constructed in
nonfederal entity if certain criteria
project has been authorized by
accordance with applicable permits and standards. §1014 would add the
are met prior to construction,
Congress and the project is
condition that the ASA would be responsible for this operation and
including that the project is
economically justified and
maintenance only if prior to construction there is a written operation and
economically justified and
environmental acceptable).
maintenance agreement between the ASA and the nonfederal entity.
environmentally acceptable.
§1016 would al ow the ASA to assume operation and maintenance
responsibilities of a federally authorized harbor or inland harbor constructed
by a nonfederal entity prior to Dec. 31, 2014, without requiring that the ASA
after construction find that the project remains economically justified and
environmental y acceptable (which is a requirement in 33 U.S.C. 2232).
CRS-19
Topic
H.R. 3080
S. 601
Conference
Nonfederal
§109 would expand the authority for §11005 would al ow the ASA to
§1015 would expand the authority (33 U.S.C. 701h) for the ASA to accept
Monetary
the ASA to accept nonfederal
accept and expend funds
nonfederal monetary contributions; allow any eligible nonfederal entity to
Contributions monetary contributions; al ow any
contributed by nonfederal entities
contribute (not only states and political subdivisions); and al ow contributions
(no credit or eligible nonfederal entity to
for repairing, restoring, or replacing for inland waterways and for operations of hurricane barriers to support
reimburse-
contribute (not only states and
water resources projects damaged
recreation consistent with the authorized project purpose. §1015 would
ment allowed) political subdivisions); and allow
or destroyed by a major disaster or
require written notice to House T&I, Senate EPW, and both Appropriations
contributions for inland waterways
other emergency if the ASA
Committees before accepting funds under this authority.
and for post-disaster project repair
determines it is in the public
and restoration.
interest.
§1017 would authorize a 5-year pilot program for the ASA to accept
nonfederal monetary contributions to increase the hours of operation of
waterway locks.
Authority for §112 would create a new authority
No comparable provision.
§1014 would subject to the specified conditions, allow for nonfederal
Nonfederal
for nonfederal entities to initiate
construction of water resources development projects which is defined as
Construction construction after a completed
including those projects with “a project recommendation that results from” a
of Projects
feasibility report. §112 would al ow
Corps produced feasibility report, a feasibility study completed by a nonfederal
Prior to
for credit or reimbursement if
entity consistent with 33 U.S.C. 2231, and a feasibility study authorized by
Congressional Congress subsequently authorizes
Congress. §1014 does not explicitly state whether a favorable recommendation
Authorization the project and if the construction is
by the ASA (or the Chief of Engineers) is required for the Corps produced
consistent with the laws and
feasibility report or the feasibility study completed by a nonfederal entity.
regulations that apply to Corps
§1014 would allow for reimbursement, credit, and transfer of credit to a
construction.
different project, and does not specify whether this is with or without interest.
§1014 would condition any credit or reimbursement on the ASA determining
that all “Federal laws and regulations applicable to the construction of a water
resources development project, and any conditions identified” by the ASA
were complied with during construction.
Projects
§116 defines “water resources
§2012 would expand crediting to
§1018 would expand crediting under (42 U.S.C. 1962d-5b) to include
Eligible for
project.” Environmental
include environmental
environmental infrastructure assistance activities.
Work-in-
infrastructure activities (which
infrastructure assistance activities.
Kind Credit
typical y are municipal water supply
and wastewater projects) are
included.
In-Kind Credit §116 would provide credit for design §2012 would authorize a provision
§1018 would authorize a provision similar to H.R. 3080 and S. 601.
for Design
work performed prior to a crediting similar to H.R. 3080.
Work
Memorandum of Understanding.
CRS-20
Topic
H.R. 3080
S. 601
Conference
Excess In-Kind No comparable provision; that is, as §2012 would require the ASA to
§1018 would authorize a provision similar to S. 601.
Contributions specified in 42 U.S.C. 1962d-5b,
reimburse excess in-kind
and Their
work-in-kind credit is limited to the
contributions (i.e., any excess above
Reimburse-
nonfederal cost-shares unless
the nonfederal cost-share resulting
ment
otherwise specified.
from work-in-kind credit and the
value of contributions of lands,
easements, rights-of-way, relocation,
or improvements to enable disposal
of dredged materials (LERRDs)),
except for navigation projects.
Transfer of
No comparable provision; 42 U.S.C. §2011 would al ow, for 10 years, the §1020 would authorize a provision similar to S. 601.
Excess In-Kind 1962d-5b does not al ow excess
ASA to apply excess credit from one
Credit Across credit or its transfer. See §108 for
project to another study or project if
Studies and
authority to transfer credit under
the nonfederal entity submits a
Projects
that authority.
comprehensive crediting plan.
Crediting
No comparable provision.
§2012 would require an update of
§1018 would require an update of the crediting guidance and regulations similar
Guidance
the crediting guidance and
to S.601.
Update
regulations and specifies an update
process and required elements.
Pilot of
§117 would require the ASA to
§2025 would require the ASA to
§1043 would require the ASA to establish a 5-year pilot program for
Nonfederal
establish a pilot program for
establish a pilot program for
nonfederal construction management of not more than 15 qualifying projects
Construction nonfederal project management and nonfederal construction
authorized prior to enactment. Hurricane, coastal and inland navigation, and
delivery of financing, design, or
management of no more than 15
ecosystem restoration projects would be eligible for participation in this pilot.
construction of no more than 15
previously authorized projects.
§1043 would al ow the ASA to transfer unobligated federal monies for the
authorized navigation or flood
Unobligated federal balance for the
project to the nonfederal entity after execution of a project partnership
damage reduction projects.
project would be transferred to the
agreement; additional amounts could be transferred from the pilot program’s
Nonfederal government entities or
nonfederal entity after execution of
appropriations. The program would be authorized at $25 million for each year
private entities could participate.
a project partnership agreement;
from FY2015 to FY019. No definition of eligible nonfederal entity is provided.
Payment for work upon completion
additional amounts could be
§1043 would require that work be performed consistent with the laws and
could be made from unobligated
transferred from the pilot
regulations that apply to Corps construction (e.g., Davis-Bacon Act wage
federal balance for the project or
program’s appropriations. The
requirements would apply). §1043 would al ow the Corps to provide technical
other amounts appropriated to the
program would be authorized at
assistance, including assistance with processing permits, to the nonfederal
Corps not to exceed the federal
$25 million for each year from
entity on a reimbursable basis. §1043 states that nothing in this subsection
share of design and construction.
FY2014 to FY018. No definition of
affects the cost-sharing requirements; it does not explicitly mention credit or
eligible nonfederal entity was
reimbursement for the federal construction share.
provided.
CRS-21
Topic
H.R. 3080
S. 601
Conference
Pilot of
No comparable provision.
No comparable provision.
§1043 would require the ASA to establish a 5-year pilot program for
Nonfederal
nonfederal entities to perform feasibility studies for flood, hurricane, coastal
Studies
and inland navigation, and ecosystem restoration projects; the program’s
authorization of appropriations would be $25 million for each year from 2015
to 2019. §1043 would allow the ASA to transfer any unobligated federal
monies to the nonfederal entity and to provide funds appropriated under this
authority to nonfederal entities to carry out the feasibility study (but not to
exceed the federal share of the feasibility study costs). If the ASA determines
the study complies with federal law once project construction is authorized,
§1043 would al ow the ASA to credit the portion of study costs that would
have been the federal responsibility toward the nonfederal construction cost of
the project. §1043 would require that work be performed consistent with the
laws and regulations that apply to Corps construction (e.g., Davis-Bacon Act
wage requirements would apply). §1043 would al ow the Corps to provide
technical assistance to the nonfederal entity on a reimbursable basis.
Source: CRS.
CRS-22
Table 5. Select WIFIA Provisions
Topic H.R.3080
S.
601
Conference
Pilot of Innovative No comparable provision
Title X would authorize a pilot program for Title V, Subtitle C (Sections 5021-5035) includes provisions similar to
Financing (Loans
the Corps and the EPA to provide direct
provisions in Title X of S. 601.
and Loan
loans and loan guarantees to nonfederal
Guarantees) for
entities for certain flood control, public
Flood Control,
water supply, and wastewater treatment
Public Water
projects through a Water Infrastructure
Supply, and
Finance and Innovation Act (WIFIA)
Wastewater
program.
Projects (WIFIA)
WIFIA short
No comparable provision
Short title (§10001). Purposes (§10002).
Short title, the Water Infrastructure Finance and Innovation Act of 2014
title and
Definitions of terms (§10003).
(§5021). Conference report omits “Purposes.” §5022 would define terms
definitions
same as S. 601, but omits “rural water infrastructure” definition.
WIFIA
No comparable provisions
§10006 would authorize the Secretary of the §5023 would authorize a provision similar to S. 601.
Authority to
Army and EPA Administrator to provide
Provide
financial assistance to carry out water
Assistance
infrastructure pilot projects.
WIFIA Eligible
No comparable provision
§10004 would include corporations,
§5025 would authorize a provision similar to S. 601.
Entities
partnerships, joint ventures, trusts, federal,
state or local governments, tribal
governments or consortia, and state
infrastructure financing authorities as eligible.
WIFIA Projects
No comparable provision
§10007 would include flood control or
§5026 is same as S. 601, but would add the following as eligible for
Eligible for
hurricane and storm damage reduction
Corps assistance: environmental restoration, coastal or inland harbor
Assistance
projects as eligible for WIFIA assistance, plus navigation improvement, and inland and intracoastal waterways
activities eligible for assistance under the
navigation improvement.
Clean Water Act or Safe Drinking Water
Act State Revolving Fund (SRF) programs,
energy efficiency projects at public water
supply or wastewater plants, repair or
replacement of public water supply or
wastewater plants, desalination or water
recycling project, acquisition of real
property, or a combination of projects.
CRS-23
Topic H.R.3080
S.
601
Conference
WIFIA Activities
No comparable provision
§10008 would include development-phase
§5027 would authorize a provision similar to S. 601, but would omit
Eligible for
activities; construction; acquisition of real
refinancing.
Assistance
property; capitalized interest and reserve
funds; and refinancing of interim funding,
long-term project obligations, or WIFIA
assistance as eligible.
WIFIA Project
No comparable provision
Under §10009, to be eligible for assistance, a §5028 is general y the same as S. 601. Regarding public sponsorship
Selection
project must be creditworthy. Eligible
requirement, it would allow the obligor to demonstrate to the Corps
project costs shall be not less than $20
or EPA that the affected state, local, or tribal government has been
million, except rural water infrastructure
consulted and supports the proposed project. For projects seeking
projects serving up to 25,000 persons shal
assistance from EPA, the Administrator would be required to give state
be not less than $5 million. Projects must be infrastructure financing authorities a right of “first refusal” to finance
publicly sponsored. WIFIA projects may not the project.
also use financing with tax-exempt municipal
bonds. §10009 details selection criteria, such
as a project’s regional or national significance
and multiple others.
WIFIA Secured
No comparable provision
§10010 would authorize the Corps or EPA
§5029 is general y the same as S. 601, but would provide that the
Loans
may make secured loans or loan
maturity date of a secured loan shall be the earlier of 35 years or the
guarantees to finance or refinance eligible
useful life of a project. Secured and guaranteed loans may not be used
project costs. Project assistance requires
for refinancing. Retains 49% limit, but see §5033 below.
an investment-grade rating. A secured loan
shall not exceed the lesser of 49% of
eligible project costs and, if the secured
loan does not receive investment-grade
rating, the amount of the senior obligations
of the project. Maturity date shall be not
more than 35 years. Total amount of
federal assistance from all sources shall be
not more than 80% of total costs, except
for rural water projects.
WIFIA State,
No comparable provision
Under §10012, recipients of WIFIA
§5031 would authorize a provision similar to S. 601.
Tribal, and Local
assistance would be required to obtain any
Permits
required state, local, or tribal permit or
approval.
CRS-24
Topic H.R.3080
S.
601
Conference
WIFIA Funding
No comparable provision
§10014 would authorize $50 million
§5033 would authorize to each the Corps and EPA $20 million for
annually to each the Corps and EPA for
FY2015, $25 million for FY2016, $35 million for FY2017, $45 million for
FY2014-FY2018 ($250 million total for
FY2018, $50 million for FY2019 ($175 million total for each agency).
each agency).
§5033 would require the Corps and EPA to set aside not less than 15%
of amounts available for each fiscal year for small community water
infrastructure projects, but unused setaside funds may be used for
other projects if unobligated on June 1 of the fiscal year. §5033 would
authorize the Corps and EPA to make available up to 25% of available
funds each year for loans in excess of 49% of total project costs [see
§5029].
WIFIA Reports
No comparable provision
§10015 would require the Corps and EPA
§5034 would require the Corps and EPA to provide information on a
to report to Congress 2 years after
public Internet site on applications for WIFIA assistance and projects
enactment and every 2 years thereafter on
selected. Also would require the GAO to report to Congress in 4 years
projects receiving WIFIA assistance
on the WIFIA pilot programs, including recommendations for
continuing, changing, or terminating the WIFIA program. (§5034)
WIFIA “Buy
No comparable provision
§10016 would require projects receiving
§5035 would authorize a provision similar to S. 601. The provision
American”
WIFIA assistance use American-made iron
would codify similar statutory provision in the Consolidated
and steel. A project may obtain a waiver if
Appropriations Act, 2014, that applies to wastewater and drinking
this requirement would be inconsistent with water SRF capitalization grants (P.L. 113-76).
the public interest, increase project costs by
more than 25%, or if U.S.-made products are
not produced in sufficient quantity or of
sufficient quality.
Source: CRS.
CRS-25
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Authorizing Projects and
Managing Subsequent Authorizations
Project Authorizations and Authorized Project Purposes
Congressional authorization is required for most Corps new construction projects, and significant
post-authorization modifications to a project’s scope or cost. For new construction authorizations,
the conference report would authorize a fixed set of 34 new construction projects totaling $25.65
billion ($15.64 billion in federal costs and $10.01 billion in nonfederal costs), as shown in Table
6. All of the projects have completed Chief’s Reports; however, only 25 have been formally
submitted by the ASA to Congress. The other nine projects, which represent $3.73 billion in
projects, are awaiting a recommendation by the ASA and its transmittal to Congress.19 For project
modifications, the conference report would authorize eight project cost modifications.20 When the
Senate passed S. 601 in May 2013, there were an estimated 19 construction projects representing
approximately $10.8 billion ($6.3 billion federal and $4.5 billion nonfederal) in construction costs
that appeared to meet the criteria in §1002 of the S. 601. When H.R. 3080 was passed by the
House in October 2013, it would have authorized a fixed set of 23 new construction projects and
project scope modifications at a total cost of $13.0 billion ($7.7 billion in federal costs and $5.3
billion in nonfederal costs), and two project cost modifications. CRS identified one project with a
completed Chief’s Report that is not included in the conference report.21
H.R. 3080 as passed by the House included no construction authorization for projects that had
their Chief’s Reports completed after the House T&I Subcommittee on Water Resources and the
Environment hearing on Chief’s Reports held on June 5, 2013. On April 29, 2014, the House
Transportation and Infrastructure Subcommittee on Water Resources and the Environment held a
hearing on the Chief’s Reports completed subsequent to the June 2013 hearing. All of the 34
projects in the conference report have Chief’s Reports and were the subject of a hearing.
Regarding existing project authorizations, H.R. 3080 included a provision to clarify that the act
would not have expanded the authorized purposes of a dam or reservoir. S. 601 would have
allowed the ASA to carry out activities to improve efficiency of dam operations and meet other
related benefits as practicable, including environment protection and restoration, water supply
storage, hydropower generations, and flood risk reduction. The ASA’s December 2013 letter to
conference managers indicated the Administration’s view that the provisions in both of the bills
(§143 in H.R. 3080, §2014 in S. 601) would hamper needed reform, giving current uses of Corps
19 These projects would not have qualified for authorization under S. 601 unless the ASA had transmitted the project’s
recommendation prior to enactment. One of the projects, the Mid-Chesapeake Bay Island, MD project had its Chief’s
Report in August 2009; however, it has not been transmitted by the ASA. The project is on hold pending an update of
the Dredge Material Management Plan anticipated in 2015.
20 Insufficient information is publicly available to determine the difference between total project construction cost and
current value of previous authorization of appropriations, which would represent the amount of the authorized increase.
21 The Mississippi River Gulf Outlet (MRGO) ecosystem restoration project has had difficulty securing a nonfederal
sponsor. The restoration’s report was transmitted to Congress in September 2013; that transmittal supported $1.3
billion ($0.86 billion federal/$0.46 billion nonfederal) of the project’s total cost of $3 billion, and deferred the ASA’s
determination on the remainder. As of December 2013, the project had no nonfederal cost-sharing sponsor; the Chief’s
Report from September 2012, stated “Because a non-federal sponsor willing to cost share in implementation of the
ecosystem restoration plan has not been identified, this report recommend no further action under Section 7013.”
Congressional Research Service
26
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
projects priority over new uses.22 The Administration instead supported legislation to add fish and
wildlife protection as an authorized purpose for all Corps dams and provide administrative
flexibility to revise project operating guidelines. The conference report (§1045) would require the
ASA to assess the management practice, priorities, and authorized purposes of Corps reservoirs in
arid regions to evaluate their impacts on water supply during drought, and to identify actions to
be carried out within existing authorities to increase project flexibility for mitigating drought
impacts. The conference report states that nothing in the section changes the authorized purpose
of a Corps dam or reservoir, and that the Secretary may carry out any recommendations and
activities under this subsection pursuant to existing law. The conference report also would require
the ASA to update a report on authorized purposes of Corps reservoirs, and include information
on the most recent review of reservoir operations and a plan for future reviews.
The conference report, like both H.R. 3080 and S. 601, would also expand many of the Corps
existing programmatic authorities known as Continuing Authorities Programs (CAPs). Under the
CAPs, the Corps studies and constructs projects of limited purpose and size without project
specific congressional authorization.
Subsequent Authorization Processes
New Studies
The conference report, like H.R. 3080 as shown in Table 7, would require the Corps to solicit
proposals from nonfederal entities for new studies and transmit qualifying studies to Congress in
the Annual Report. Congressional authorization would be needed for the agency to proceed with
the study. S. 601 (§4002) would have established a process for initiating new studies.
New Project Authorizations and Modifications of Project Scope
During House and Senate consideration, an ongoing topic of discussion was how to address
projects anticipated to have completed study milestones (e.g., a Chief’s Reports, ASA
transmission to Congress) in the next year or two. Both H.R. 3080 and S. 601 addressed these
projects but neither bill would have authorized them directly. The conference report also would
not authorize projects that do not already have completed Chief’s Reports. Like H.R. 3080, the
conference report would require the ASA to submit completed feasibility reports and reports for
project modifications to Congress in the Annual Report. Congressional authorization would be
needed for the agency to proceed with construction, as shown in Table 7. As described in Table
4, the conference report (§1014), like H.R. 3080, may provide a mechanism for nonfederal
entities to initiate work on a project with a completed feasibility study prior to a Chief’s Report.
The conference report (§7004) would establish expedited House procedures for the 113th
Congress and expedited Senate procedures through 2018 for bills authorizing construction
projects that meet specified criteria. A qualifying requirement for the expedited House procedure
would be a completed Chief’s Report. The qualifying requirements for the expedited Senate
procedure would include a completed Chief’s Report, the project to be carried out substantially in
accordance with the plan identified in the Chief’s Report and subject to conditions in that report,
and an ASA recommendation to authorize construction transmitted to Congress.
22 See footnote 2.
Congressional Research Service
27
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Project Cost Modifications and Project Modifications
The conference report would authorize eight project cost modifications that had ASA
recommendation letters transmitted to Congress. The conference report would require that
subsequent proposed cost modifications be submitted for congressional consideration through the
Annual Report. The proposed cost increases would require congressional authorization. This is
similar to how H.R. 3080 would have addressed cost modifications; S. 601 would have
established a process to allow, for three years, the ASA to proceed with projects requiring cost
modifications if a submission certifying the need for the increase is submitted to Congress and if
“amounts are appropriated to initiate or continue construction of the project in an appropriation or
other Act.” Whether the expedited House and Senate procedures provided in the conference
report (§7004) could be used for project cost modifications is unclear; traditionally project cost
modifications are documented in reports of the Director of Civil Works, not Chief’s Reports. The
reports of the Director of Civil Works are then transmitted by an ASA letter to Congress. The
conference report included no comparable title to Title III of S. 601, Project Modifications.
Additional Corps Project Costs May Require Cost Modifications
The number of projects potential y requiring project cost modifications in the near future is unknown. No recent list
of projects nearing their cost limits is available. The most recent publicly available list of potential project cost issues
is from a Corps April 2012 memorandum which identified 32 projects with potential cost modifications that may or
may not entail project scope modifications. According to a May 29, 2013, Corps memo, “at least one quarter of
USACE Civil Works construction projects are not compliant with cost limits and schedule completions.” A May 30,
2013, Corps memo stated that “forty-four construction projects in the current Civil Works portfolio have
compliance issues with Section 902 cost limit requirements.” Section 902 refers to §902 of WRDA 1986, as amended
(33 U.S.C. 2280), which limits Corps project authorization of appropriations to the amount authorized in law
(adjusted for inflation in construction and real estate costs) plus 20% of the original authorization of appropriations.
Under current authorizations, the ASA must seek a congressional modification in a project’s authorization of
appropriations for projects anticipated to exceed the adjusted 120% authorization of appropriations. Many of the
factors contributing to project cost increases are persistent and apply broadly to many Corps projects. In May 2013,
the Engineer Inspector General completed a report on an inspection of Corps §902 compliance actions; it stated:
In some cases, poor decision, incomplete analysis or post authorization revisions to engineering
standards affected the project delivery and led to larger than expected cost projections. In other
instances, external pressures or influences forced changes to project scope. The cumulative effect of
these internal and external factors was to increase project costs significantly and often led to projects
having insufficient authority under 902. However, the factor with the greatest impact was the
persistent funding shortfal s in the Civil Works budget. Funding shortfal s have extended the project
delivery process and increased costs beyond anticipated levels for many USACE Civil Works projects
Sources: U.S. Army Corps of Engineers, Memorandum for Record: Corps Section 902 Cost Limit Policy Clarification and Applicability
procedures - Notable Deficiency, Washington, DC, April 6, 2012, http://planning.usace.army.mil/toolbox/library.cfm?Option=
Listing&Type=Memo&Search=Policy&Sort=Default.; U.S. Army Corps of Engineers, Memorandum for MSC Commanders: Civil
Works Delegated Authority for Project Cost Management, Washington, DC, May 29, 2013, http://planning.usace.army.mil/toolbox/
library.cfm?Option=Listing&Type=Memo&Search=Policy&Sort=Default; Army Corps of Engineers, Memorandum for SEE
Distribution: Engineer Inspector General (EIG) Section 902 Inspection Report Recommendations and Command Implementing
Instructions, Washington, DC, May 30, 2013,
http://planning.usace.army.mil/toolbox/library.cfm?Option=Listing&Type=Memo&Search=Policy&Sort=Default; U.S. Army Corps of
Engineers, Engineer Inspector General, U.S. Army Corps of Engineers Engineer Inspector General Inspection Report: Inspection of Section
902 Cost Limit Requirements for Civil Works Projects, Washington, DC, May 2013, p. ii.
For Further Reading
CRS Report R41961, Army Corps Fiscal Challenges: Frequently Asked Questions, by Nicole T.
Carter and Charles V. Stern.
Congressional Research Service
28
Table 6. Select Project Authorization Provisions
Topic
H.R. 3080
S. 601
Conference
Authorization §401 would authorize 23 specifical y
§1002 would authorize the ASA to
§7002 would authorize 34 specifically listed projects with a total authorization
of New
listed projects with a total
carry out any project with a Chief’s
of appropriations of $25.65 billion ($15.64 billion in federal costs and $10.01
Construction authorization of appropriations of
Report transmitted by the ASA after billion in nonfederal costs).
or Project
$13.0 billion ($7.7 billion
WRDA 2007 with a recommendation
Scope
federal/$5.3 billion nonfederal).
to construct. §1002 would require
Modification
projects be carried out in accordance
with Chief’s
with the project plan and subject to
Reports
conditions described in its report.
Authorization §402 would authorize cost
No comparable provision. §1003,
§7003 would authorize cost modifications to eight previously authorized
of Project
modifications to two previously
which is discussed in Table 7,
projects.
Cost
authorized projects: Miami Harbor,
would allow the ASA to proceed
Modifications FL navigation; and Little Calumet
with projects requiring cost
River, IN flood control.
modifications.
Existing
§133 would require the ASA, within §2014 would authorize, with
§1045 would require the ASA, within a year of enactment, to assess the
Corps
a year of enactment, assess the
limitations, the ASA to improve the
management practice, priorities, and authorized purposes of Corps reservoirs
Reservoir
management practice, priorities,
efficiency of dam operations and to
in arid regions to evaluate their impacts on water supply during drought, and
Operations
and authorized purposes of Corps
maximize to the extent practicable
identify actions to be carried out within existing authorities to increase project
reservoirs in arid regions to
both the authorized project purposes flexibility for mitigating drought impacts. §1045 would require that within 2
evaluate their effects on water
and other related benefits, including years, the ASA update a report on authorized purpose of Corps reservoirs,
supply during drought.
environmental protection and
and include information on the most recent review of reservoir operations and
§143 would clarify that nothing in
restoration, most water supply
a plan for future reviews. §1045 would require GAO to audit previous Corps
this act would allow the ASA to
storage, hydropower generation, and operations reviews, evaluate the plan for future operations reviews, and make
carry out any project for a purpose
flood risk reduction. §2014 would
recommendations for improving operations reviews. §1045 states that nothing
at a dam or reservoir not otherwise restrict the activities to those that do in the section changes the authorized purpose of a Corps dam or reservoir,
authorized as of the act’s date of
not adversely impact any authorized and that the Secretary may carry out any recommendations and activities
enactment.
purpose.
under this subsection pursuant to existing law.
Continuing
No comparable provision. H.R.
§2003 would increase project cost
§1030 would increase the project cost and/or program cost limits for the CAPs
Authorities
3080 has no provision focused on
and program cost limits for certain
identified in §2003 of S. 601 and the Emergency Streambank and Shoreline
Program
changing the CAPs; however, other
CAPs. §2004 would require the ASA Protection CAP (known as Section 14). §1030 would require the prioritization
(CAPs)
provisions of the bill may apply
publish prioritization criteria for
criteria and reporting similar to §2004 of S. 601.
policy changes to the CAPs.
CAPs and an annual CAP report.
Source: CRS.
CRS-29
Table 7. Select Provisions on Subsequent Authorizations of
Studies, Projects, and Project Modifications
Topic
H.R. 3080
S. 601
Conference
Waiving
§111would al ow for the ASA to
§2059 would authorize a provision
§1023 would authorize a provision similar to H.R. 3080 and S. 601.
Need for
complete a construction project
similar to H.R. 3080.
Project Cost
using funds contributed by a
Modification
nonfederal entity (without
opportunity for reimbursement) for
projects that have exceeded 120%
of their congressional authorized
costs.
New Project
§118 would require that the Annual
§1004 would authorize procedures
§7001 would require an Annual Report similar to H.R. 3080. §7004 would
Construction Report include completed feasibility
for expedited Senate consideration
establish expedited House procedures for the 113th Congress and expedited
reports (with the Chief’s Report if
of bills authorizing projects that
Senate procedures through 2018 for bills authorizing construction projects that
appropriate) for new Corps
have been transmitted by the ASA
meet specified criteria. A qualifying requirement for the expedited House
construction projects requiring
to Congress through 2018. Senate
procedure would be a completed Chief’s Report. The qualifying requirements
congressional authorization.
EPW would be required to report
for the expedited Senate procedure would include: a completed Chief’s
all such bills by January 31st of the
Report, the project to be carried out substantial y in accordance with the plan
second session of each Congress. If
identified in the Chief’s Report and subject to conditions in that report, and an
Senate EPW failed to act, the bills
ASA recommendation to authorize construction transmitted to Congress after
would be discharged from the
enactment.
Committee and placed on the
calendar of the Senate, with some
exceptions.
Project Cost
§118 would require that the Annual
§1003 would al ow the ASA for
§7001 would authorize a provision similar to H.R. 3080.
Modifications Report include proposed cost
three years after enactment to
modifications to authorized Corps
modify the authorized project costs
projects that have been identified
if (1) the ASA certifies the necessity
by the ASA for congressional
for exceeding the current
authorization.
authorization and submits the
certification to Congress and (2) if,
subsequent to the submission,
“amounts are appropriated to
initiate or continue construction of
the project in an appropriations or
other Act.”
CRS-30
Topic
H.R. 3080
S. 601
Conference
Project Scope §118 would require that the Annual
§1004 would provide for expedited
§7001 would authorize a provision similar to H.R. 3080. §7004 would establish
Modifications Report include scope modification
Senate consideration through 2018
expedited House procedures for the 113th Congress and expedited Senate
studies identified by the ASA for
of a bill authorizing projects
procedures through 2018 for bills authorizing construction projects that meet
congressional authorization.
transmitted by the ASA to
specified criteria.
Congress.
Study
§118 would require that the Annual
§4002 would al ow the ASA to
§7001 would authorize a provision similar to H.R. 3080.
Authorizations Report include any new Corps
initiate annually a limited number of
feasibility study proposed by a
new studies (of the ASA’s choosing
nonfederal entity that would
consistent with criteria in §4002)
require congressional authorization. for 3 years after enactment with an
authorization of appropriations of
$25 million annual y. §4002 would
prohibit funding a new study unless
“amounts are appropriated to
initiate a study in an appropriations
or other Act.”
Cost Share
§121 would require the ASA to
§2055 would authorize a provision
§1036 would authorize a provision similar to S. 601.
for Locally
build the locally preferred plan
similar to H.R.3080, with the
Preferred
(LPP) if requested by the nonfederal exception that §2055 would require
Flood Risk
entity if the LPP provides a higher
that the federal share of the LPP be
Management
level of protection than the project
not less than the share of the
Projects
alternative authorized under this
national economic development
act, and the ASA determines that
plan.
the LPP is technically feasible,
environmentally acceptable, and
benefits exceed the cost. §121
would require the additional cost
attributable to the higher
protection be paid by the
nonfederal entity.
Source: CRS.
CRS-31
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Investing in Navigation
Harbors
The Harbor Maintenance Trust Fund (HMTF) is used to cover most Corps’ costs of operating and
maintaining the navigation infrastructure of U.S. harbors, principally the dredging of channels.
The HMTF is supported by a tax on cargo moving through ports and cruise ship passengers (the
Harbor Maintenance Tax, HMT). In recent years, annual HMTF expenditures (which require
congressional appropriations typically as part of an Energy and Water Development
Appropriations Act) have amounted to a little more than half of annual HMT collections and
interest. Like H.R. 3080 and S. 601, the conference report seeks to increase HMTF spending, but
not at the expense of available funding for other Corps activities. Thus, increased HMTF
spending is predicated on the condition that the Corps total budget increases by at least the same
amount.
The conference report would expand the eligible uses of HMTF monies to dredging activity that
is now paid by nonfederal sponsors (e.g., the dredging of berths by port authorities), but only at
ports that generate more HMT revenue than they have received from the HMTF. The conference
report adopts the provision in S. 601 that would eliminate the 50% nonfederal cost share for the
incremental cost of maintaining harbors at depths between 45 and 50 feet.23 Thus, the conference
report could increase HMTF spending on harbors handling large volumes of cargo that in the past
have made relatively little use of HMTF funds. The Administration objects to expanding the
federal role in harbor maintenance to include activities that historically have not been a federal
responsibility.24
An issue reflected in the legislation is how to prioritize harbor maintenance among ports that
handle large amounts of cargo and those that do not. The conference report reserves specified
portions of HMTF funding for harbors with less cargo or that have not been fully maintained in
prior years. The conference report modifies a provision in H.R. 3080 to require that the Corps
provide a written response to a nonfederal interest seeking federal maintenance of a harbor.
In addition to the dredging of berths and certain legacy-contaminated sediments, the conference
report adopts language from S. 601 that would allow “donor ports” and “energy transfer ports” to
use appropriated funds for rebating HMT payments to shippers or for other dredging-related
activity that otherwise is not a federal responsibility (see Table 8 for definitions). This could be
especially appealing to U.S. ports that contend shippers favor nearby foreign ports to avoid
payment of HMT. It appears that Seattle and Tacoma, WA, would qualify as “donor ports.”25 It
23 For a listing of harbor depths, useful in identifying which ports would benefit from this provision, see the following
Army Corps report, http://www.iwr.usace.army.mil/Portals/70/docs/portswaterways/rpt/
June_20_U.S._Port_and_Inland_Waterways_Preparing_for_Post_Panamax_Vessels.pdf.
24 Statement of Administration Policy, S. 601 – Water Resources Development Act of 2013, May 6, 2013; Statement of
Administration Policy, H.R. 3080 – Water Resources Reform and Development Act of 2013, October 23, 2013. See
also ASA’s December 2013 letter to conference managers (footnote 2).
25 Other ports that may qualify are certain ports in California, New York/New Jersey, Georgia, and Florida. These are
additional states with at least two million twenty-foot equivalent unit (TEUs), which is a standard unit for cargo
carrying capacity, of containerized cargo in 2011. The Army Corps has not published annual HMTF expenditure
reports since FY2006, so the ratio of HMTF funding to HMT collections, a criterion for determining which ports are
“donor ports,” is not known.
Congressional Research Service
32
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
appears that fourteen ports may qualify as “energy transfer ports” (five ports in Louisiana; four
ports in Texas; plus Mobile, AL; New York/New Jersey; Baltimore, MD; Norfolk, VA; and Long
Beach, CA).26 To qualify as a donor port, a port must generate substantially more HMT than it
receives, but this is not the case for an energy transfer port. An energy transfer port is defined as a
harbor handling more than 40 million tons of cargo of any type and at which energy products
comprised more than 25% of this tonnage (the HMT is not assessed on export cargo).
Inland Waterways
Some waterways stakeholders have been frustrated with the pace of construction on inland
navigation infrastructure and cost overruns at key projects. The Inland Waterways Trust Fund
(IWTF), which is funded by user fees, pays for 50% of most of these activities (to match 50% of
costs provided from the General Fund of the Treasury). The IWTF has a declining balance that
appears to have limited waterway construction projects in recent years. One inland waterway
construction project, the Olmsted Locks and Dam project, has received the majority of the inland
waterways construction monies in recent years, while construction on other inland waterway
projects has been postponed. The Olmsted project was originally authorized at a cost of $775
million (plus inflationary increases) but recently required an increase to its authorization (i.e., an
increase to its appropriations ceiling). The FY2014 Continuing Appropriations Act, P.L. 113-46,
increased the project’s authorization from $775 million to $2.92 billion.
To expedite work on the Olmsted project and facilitate work on other inland waterways projects
funded by the IWTF, the conference report would alter the IWTF cost-share requirement for the
Olmsted project. Like S. 601 and H.R. 3080 the conference report would decrease the required
IWTF share of project costs compared to current law. The conference report would decrease the
IWTF required portion of project costs from 50% to 15%. S. 601 would eliminate the IWTF
required cost-share and would fund the Olmsted project entirely from the General Fund of the
Treasury. H.R. 3080 would reduce the IWTF cost-sharing requirement from 50% to 25%, as
shown in Table 9. In a December 2013 ASA letter to the conferee managers, the Administration
objected to proposed alterations to the Olmsted project’s cost sharing formula and stated that the
project should continue to be cost shared equally between the general fund and the IWTF.27
Some have argued that water resources development legislation should also decrease IWTF cost-
share requirements for major rehabilitation investments.28 Like S. 601, the conference report
would raise the threshold for cost sharing for major rehabilitation investments on inland
waterways from $8 million to $20 million, thereby making the General Fund responsible for a
larger share of the expenditures. H.R. 3080 includes no such change.
Like S. 601 and H.R. 3080, the conference report would authorize changes to the inland
waterways project delivery. These changes are generally consistent with an April 2010 report
published and endorsed by the Inland Waterways User Board (a federal advisory committee).29
26 For port cargo statistics, see http://www.navigationdatacenter.us/wcsc/wcsc.htm. Note that this data set does not
include foreign trade empty containers loaded or unloaded.
27 See footnote 2.
28 In addition to all construction projects on inland waterways, the IWTF must fund half of the costs for major
rehabilitation investments, currently defined as any inland waterways rehabilitation project costing more than
$8 million.
29 The report is available at http://waterwayscouncil.org/wp-content/uploads/2013/01/IMTS_IWUB_Report.pdf.
Congressional Research Service
33
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Like the House and Senate Bills, the conference report would also authorize several studies on
inland waterways project revenues. This includes a study by the Government Accountability
Office (GAO) on inland waterways revenue collection that would be authorized in S. 601 and
H.R. 3080, and two reports on revenue alternatives by the Assistant Secretary of the Army that
would be authorized in H.R. 3080.
For Further Reading
CRS Report R43222, Harbor Maintenance Finance and Funding, by John Frittelli.
CRS Report R41430, Inland Waterways: Recent Proposals and Issues for Congress, by Charles
V. Stern.
Congressional Research Service
34
Table 8. Select HMTF Provisions
Topic
H.R. 3080
S. 601
Conference
HMTF
§201 would set targeted annual
§8003 would set minimum annual spending
§2101 is similar to H.R. 3080 but modifies the targeted annual
Spending
spending levels from the HMTF
levels at the lesser of $1 billion in FY2014 to
spending levels from the HMTF beginning with 67% of the HMT
Level
beginning with 65% of HMT
$1.5 billion in FY2019, or total annual HMTF
received the previous year in FY2015 to 100% in FY2025 and
received the previous year in
receipts and interest. Beginning FY2020, annual
thereafter. If these targeted spending levels are realized, specified
FY2014 to 80% in FY2020 and
spending would be set to equate to the level of
percentages of these additional funds are directed to certain harbor
thereafter.
receipts and interest.
projects as described below.
Pre-condition §201 would establish a Sense of
§8003 would not apply the specified HMTF
§2101 essentially combines the language in H.R. 3080 and S. 601,
for Increased Congress that increases in harbor
spending amounts discussed above if providing
thus in order for harbor maintenance spending to increase to
HMTF
maintenance spending should not
the amounts would reduce funding available for
targeted levels, Congress must increase the Corps budget by that
Spending
result in decreases in spending for
other Corps activities below amounts available
amount so as not to decrease spending on other Corps activities.
other Corps activities.
for the previous fiscal year.
Expanded
§201 would al ow up to 5% of
§8004 would allow that at harbors in states that
§2102 defines expanded uses the same as H.R. 3080 and S. 601 –
Eligible Uses
HMTF annual spending to be used
generate at least 2.5% of total annual HMT
that is, dredging berths and legacy-contaminated sediments. Harbors
of HMTF
for dredging berths and legacy-
collections and received less than 50% of the
eligible to spend HMT funds on these purposes is based on the level
Funds
contaminated sediment, at harbors HMT revenue they generated, HMTF monies
of HMT col ections and expenditures at these harbors over the
that generate more HMT than
may be used for dredging berths and legacy-
previous three fiscal years, similar to H.R. 3080. At least 10% of
they receive, if HMTF targeted
contaminated sediments, provided that all high-
additional funds from the increased targeting levels mentioned
spending levels are met.
use deep draft harbors are maintained to their
above would be spent on expanded uses, with priority of harbor
constructed dimensions. Funds for this purpose
projects based on the greatest difference between col ections and
would be limited to specified shares of the
expenditures among the eligible harbors.
HMTF. Funds could also be used for dredging
berths and legacy-contaminated sediments at
“donor ports” and “energy transfer ports” (see
below).
Corps
§202 would require the ASA
§8004 would require annual reports from the
§2102 requires biennial report with similar content as in H.R. 3080,
reporting
biennially to identify, for each
Corps on amount and share of funds spent on
but assessment based on constructed dimensions as in S. 601.
requirement
harbor, funding needed to restore
high, moderate, and low use ports and any
full authorized dimensions for each additional amount needed to maintain these
channel including expanded uses,
harbors at their constructed dimensions.
amount requested in annual budget
request, the difference between the
two, and a five year budget outlook.
CRS-35
Topic
H.R. 3080
S. 601
Conference
Prioritization §202 seeks an equitable al ocation
§8004 states that the primary use of HMTF is
§2102 would authorize a provision similar to H.R. 3080 but also
of funding
of HMTF funds among harbors
maintaining constructed dimensions of
specifies that 90% of the additional funds from targeted spending
regardless of size or tonnage
commercial harbors. §8004 would require the
levels (if available) be directed to high and moderate use ports.
handled. For determining the
ASA to prioritize funding made available that are Reserves 5% of these additional funds for underserved harbors which
equitable al ocation of funds, §202
in excess of FY2012 spending levels for high-use, are defined as moderate-use or emerging harbors that have been
would direct the ASA to consider
deep draft harbors and Great Lakes harbors
maintained at less than their constructed dimensions during each of
funding needs, national and
that are not maintained at their constructed
the prior six fiscal years. In prioritizing underserved harbors, ASA is
regional significance, and national
dimensions.
directed to consider the quantity of commerce at the harbors. §2102
security and military readiness, and
adopts S. 601 definitions of high-use harbors (handling 10 million tons
not to base allocations solely on
or more of cargo annually) and moderate-use harbors (handling more
tonnage handled.
than one million but less than 10 million annually).
Set Aside for §202 would require the ASA to
§8004 would direct the ASA to prioritize that
§2102 would require that the equivalent of at least 10% of HMTF
Lower Use
allocate at least 10% of HMTF
10% of remaining funds from above prioritization, funds spent in FY2012 be spent on emerging harbors each fiscal year
Harbors
expenditures to harbors handling
if available, be used for moderate- and low-use
2015 through 2022. Also requires that 10% of the additional funds
less than one million tons for
harbors not receiving sufficient funding in six
from targeted spending levels be spent on emerging harbors.
FY2015 and FY2016.
prior fiscal years. If this funding is available, §8004 Emerging harbors are defined as transiting less than one million tons
would direct the ASA to equally divide it among
of cargo annually.
Corps districts with eligible projects.
Great Lakes
§202 would direct the ASA to fund §8004, as noted above, would identify Great
§2102 is essentially the same as H.R. 3080. Also, at least 10% of
Navigation
the Great Lakes as an
Lakes harbors as a priority for HMTF monies.
additional funds from targeted funding levels are reserved for Great
Funding
interdependent navigation system.
Lakes projects.
Nonfederal
No comparable provision.
§8004 would eliminate the 50% nonfederal cost
§2102 would authorize a provision similar to S. 601.
Cost Share
sharing requirement for harbor maintenance
for O&M
between 45 and 50 feet deep.
Donor and
No comparable provision.
§8004 would define a donor port as generating at §2106 defines donor and energy transfer ports the same as S. 601
Energy
least $15 million in annual HMT collections but
(but port data based on calendar year 2012 instead of 2011), and
Transfer
receiving less than 25% of that in HMTF spending, allows these ports to use the funds for the same purposes as
Ports
and located in a state that handled at least two
specified in S. 601. Unlike S. 601, §2106 would require the Corps to
mil ion cargo containers at ports in 2011. §8004
report, within 18 months of enactment, its assessment of the impact
would define an energy transfer port as a port at of this provision, including any recommendations for amending or
which energy commodities comprised more than reauthorizing this provision. §2106 authorizes $50 million per year
25% of its tonnage in 2011 and total tonnage
for FY2015 - FY2018 to carry out this provision and another $50
handled exceeded 40 million tons. At these two
mil ion per year for FY2019 - FY2022 if the targeted funding levels
port types, it would allow the ASA subject to
referenced above in §2101 are achieved for years FY2015-FY2018.
appropriations, to provide HMTF funds to
qualifying ports for payments to shippers using
the port or for dredging berths and legacy-
CRS-36
Topic
H.R. 3080
S. 601
Conference
contaminated sediments. §8004 would establish
criteria for determining the related authorization
of appropriations for FY2014 through FY2024.
Nonfederal
§203, under the heading “preserving No comparable provision.
§2107 is similar to H.R. 3080 but requires the Corps to respond to
Justification
United States harbors,” would allow
the justification submitted by the nonfederal interest including an
for Corps
a nonfederal interest to submit
assessment of the information submitted.
Investment
justification to the Corps for
maintaining a harbor.
HMTF Study
§206 would direct GAO to study
§8005 would include the same provision as H.R.
No comparable provision.
HMTF expenditures on low- and
3080.
moderate-use ports, and HMTF
expenditures related to
competitiveness of U.S. ports with
respect to Canadian and Mexican
ports.
Remote and
No comparable provision.
§5017 adds Alaska to an existing provision specific §2104 would authorize a provision similar to S. 601.
Subsistence
to Hawaii and U.S. territories concerning remote
Harbors
and subsistence harbors and the Corps
consideration of such harbor projects.
Arctic Deep
No comparable provision.
§5022 outlines criteria for the Corps to provide
§2105 would authorize a provision similar to S. 601.
Draft Port
technical expertise to nonfederal public entities
Partnerships
for Arctic Coast deep draft port development.
Source: CRS.
CRS-37
Table 9. Select Inland Waterways Provisions
Topic
H.R. 3080
S. 601
Conference
Inland
§212 would authorize changes to the
§7003 would authorize largely
§2002 would authorize changes that are largely similar to H.R. 3080 and S.
Waterways
inland waterways project delivery
similar changes to project delivery
601.
Project Delivery process.
as H.R. 3080.
Inland
§213 would direct GAO to report
§7006 would authorize a provision
§2003 would authorize a provision similar to H.R. 3080 and S. 601.
Waterways
within two years, on the efficiency of
similar to H.R. 3080.
GAO Study
waterways revenue collections.
Inland
§214 would direct the ASA to
No comparable provision. §7005
§2004 would authorize provisions that are similar to the revenue studies
Waterways
undertake certain revenue studies,
would include a Sense of Congress
and stakeholder roundtable that would be authorized in H.R. 3080.
Revenue
including 1) a study of feasibility of
that existing revenues are
Alternatives
construction bonds and 2) a study on
insufficient for waterway
potential new user fees that could be
construction and rehabilitation and
incorporated to achieve expenditure
that the issue should be addressed.
levels of one-half of annual construction
expenditures of $380 million per year
($190 million per year from the IWTF).
§215 would direct the Corps to
convene a stakeholder roundtable to
evaluate alternative policy approaches
for inland waterways.
Olmsted Locks
§216 would reduce the IWTF cost
§7008 would make the Olmsted
§2006 would reduce the IWTF cost share for the Olmsted project from
and Dam
share for the Olmsted from 50% to
project ful y funded by the general
50% to 15%, thereby increasing monies required from the General Fund of
Project
25%, and increase monies from the
fund of the Treasury and eliminate
the Treasury from 50% to 85%. §2006 would establish a Sense of
General Fund of the Treasury to 75%.
the IWTF cost-share requirement.
Congress similar to H.R. 3080. §2007 would direct a GAO study similar to
§216 would require an ASA report on
§7007 would direct GAO to
S. 601 and direct an ASA report similar to H.R. 3080.
lessons learned from the project, and
conduct a study on cost overruns at
establish a Sense of Congress that
the Olmsted project.
appropriations for the Olmsted project
should not be less than $150 million
until project construction is completed.
Inland
No comparable provision.
§7004 would require all inland
Similar to S. 601, §2006 would require that al inland waterways major
Waterways
waterways major rehabilitation costs rehabilitation costs less than $20 million (instead of $8 million) be funded
Rehabilitation
less than $20 million (instead of $8
by the general fund.
Cost Sharing
million) to be from the general fund.
Source: CRS.
CRS-38
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Reducing Flood Risks
H.R. 3080 and S. 601 had taken significantly different approaches to the Corps’ flood risk
management activities; the House approach had been limited, while the Senate approach had been
more expansive. While the conference report includes many levee safety provisions similar to S.
601, the conference report is scaled back from S. 601 in terms of both scope of new authorities
and programs and the level of annual authorization of appropriations, as shown in Table 10.
The conference report would establish a levee safety initiative (§3016) that would authorize:
• Corps technical assistance and training to promote levee safety,
• Corps levee rehabilitation assistance at 65% federal cost share and maximum
federal project cost of $10 million per project (activities under the authority
would have an authorization of appropriations of $30 million for FY2015
through 2019), and
• FEMA to assist in establishing or improving state and tribal levee safety
programs.
Elements of the initiative are similar to many provisions in S. 601, but with either no or lower
levels of authorizations of appropriations. Like both H.R. 3080 and S. 601, the conference report
would have the Corps develop national levee safety guidelines.
The conference report provides a more limited extension of federally cost-shared beach
nourishment (i.e., 3 years for certain projects) than the 15 years that S. 601 would have
authorized. The ASA’s December 2013 letter to conference managers included an objection to this
nourishment provision and recommended that projects be reevaluated rather than simply
extended.30 The conference report also provides for the ASA to review a 15-year extension
request and make a recommendation to Congress regarding authorization.
The ASA’s letter to conference managers also identified specific sections of S. 601 (§2022 and
§2040) related to the repair and rehabilitation of levees that the Administration did not support.
The conference report includes various related but altered authorizations for levee repair and
rehabilitation; it would:
• allow Corps levee repair to be completed to the design level of protection (rather
than to pre-storm conditions) or if needed modify the project to address major
deficiencies or implement nonstructural measures; and require reporting every
two years on repair spending and a review the Corps emergency response
authorities to be completed within eighteen months of enactment. (§3029)
• authorize Corps rehabilitation of existing hurricane and storm damage levees that
meet specific criteria if they are providing reduced protection due to
consolidation, settlement, subsidence, sea level rise, or new datum; the ASA is
limited to using this authority for projects with project partnerships agreements
that state that the nonfederal entity is not required to perform restoration for
30 See footnote 2.
Congressional Research Service
39
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
subsidence and sea level rise as part of its operation and maintenance
responsibilities. (§3017)
The conference report (§3014) would direct the ASA to ensure that an activity under the Corps
inspection of completed works program provides adequate information to reach a levee
accreditation decision for purposes of floodplain mapping related to FEMA’s National Flood
Insurance Program (NFIP) mapping.
For Further Reading
CRS Report R41752, Locally Operated Levees: Issues and Federal Programs , by Natalie
Keegan et al.
Congressional Research Service
40
Table 10. Select Flood Safety Provisions
Topic
H.R. 3080
S. 601
Conference
Post-Damage §122 would require the ASA to
§2040 would expand the authority
§3029, similar to S. 601, would expand the authority to al ow the ASA to repair
Repair of
review its emergency response
to allow the ASA to repair to the
to the design level of protection (rather than to pre-storm conditions) or if
Storm and
authorities to evaluate repairing to
design level of protection (rather
needed modify the project to address major deficiencies or implement
Flood Control pre-flood conditions or to project
than to pre-storm conditions) or if
nonstructural measures. §3029 would require the ASA to report every two
Projects
design, using nonstructural
needed modify the project to
years on repair spending. §3029, similar to H.R. 3080, would require the ASA
measures, and incorporating sea-
address major deficiencies or
to review the Corps emergency response authorities to evaluate repairing to
level rise and extreme weather
implement nonstructural measures.
pre-flood conditions or to project design, using nonstructural measures, and
event risks, and report on the
§2040 would require the ASA to
incorporating sea-level rise and extreme weather event risks, and report on
results to House T&I and Senate
report every five years on repair
the results to House T&I and Senate EPW Committees within 18 months of
EPW within a year of enactment.
spending.
enactment.
Post-Disaster No comparable provision.
§11004 would authorize watershed
§3025, like S. 601 would authorize watershed assessments of areas with
Watershed
assessments of areas with federally
federally declared disasters, and carrying out of identified projects under the
Assessments
declared disasters, and carrying out
Corps flood control and ecosystem restoration CAPs; §3025 would include no
and Activities
of identified projects under the
authorization of appropriation and no per project federal limit. The underlying
Corps flood control and ecosystem
CAP authorities have federal per project cost limitations.
restoration Continuing Authorities
Programs (CAPs). §11004 would
limit the federal share of an
assessment to $1million and
provide an authorization of
appropriation of $25 million for
each of FY2014 through FY2018.
Floodplain
No comparable provision.
§2003 would increase annual
§1030 includes a provision similar to S.601.
Management
authorization of appropriations
Services
from $15 million to $50 million.
National Dam §124 would authorize technical and
Title IX would authorize technical
§3001 would authorize technical and clarifying changes to the National Dam
Safety
clarifying changes to Federal
and clarifying changes to the
Safety Program similar to H.R. 3080 and S. 601, and would provide for an
Program Re-
Emergency Management Agency’s
National Dam Safety Program
annual authorization of appropriations of $9.2 million for FY2015 through
authorization (FEMA) National Dam Safety
(similar to §124 of H.R. 3080), and
FY2019.
Program (e.g., adding a public
would provide for an annual
awareness initiative); no change
authorization of appropriations of
made to the most recent
$9.2 million for FY2014 through
authorization of appropriations of
FY2018.
$9.2 million for FY2011.
CRS-41
Topic
H.R. 3080
S. 601
Conference
Federal
§126 would require the ASA to
§6004 would require the ASA to
§3016 would require the ASA to establish federal levee safety guidelines with
Levee Safety
establish federal levee safety
establish federal levee safety
many elements similar to H.R. 3080 and S. 601, and direct that all federal
Guidelines
guidelines.
guidelines.
agencies consider the guidelines in carry out their levee maintenance activities
to the maximum extent practicable.
Federal
§126 would amend the Corps
§6004 would authorize a national
§3016 would establish a levee safety initiative. §3016 would authorize the
Support for
Planning Assistance to States
program to promote state levee
Federal Emergency Management Agency (FEMA) Administrator to provide
State Levee
program to allow the ASA to
safety programs and would require
assistance to state and tribes in establishing or improving levee safety programs
Safety
provide technical assistance to
multiple components (e.g., levee
and conducting levee inventories; this assistance would be subject to funding
Programs
promote state and local levee safety inventory hazard potential
specified in appropriations act for FEMA. §provide an authorization of
programs. To be eligible, a state
classification system, national levee
appropriations for this FEMA technical assistance of $25 million for each of
would need to have or be
safety technical assistance and
FY2015 through FY2019. §3016 would authorize the ASA to provide technical
establishing a state funded levee
training program). §6004 would
assistance and training to promote levee safety and assist levee owners in
safety program to carry out the
establish a grant program to assist
reducing flood risks associated with levees and developing levee safety
federal guidelines. No authorization
eligible states and Indian tribes with
programs.
of appropriations is specified.
state levee safety programs. §6009
would include annual authorization
of appropriations of $300 million
for FY2014 through FY2023.
Vegetation
§127 would require the ASA to
§2020 would require the ASA to
§3013 would require the ASA to review the Corps 2009 and 2012 levee
on Levees
review Corps national guidelines for review the Corps 2009 and 2012
vegetation guidelines, similar to S. 601, and consider amendments that would
vegetation on levees and consider
levee vegetation guidelines and
al ow for local variances and solicit input from independent experts and
amendments that would allow for
consider amendments that would
consider recommendations submitted by Corps region teams and state, tribal,
local variances; within a year of
allow for local variances and solicit
regional, and local entities. §3013 would require that the ASA within 18
enactment, the ASA would be
input from the National Academies.
months of enactment revise current levee vegetation guidelines. §3013 includes
required to revise the current
Within two years, the ASA would
no reference to Corps 2014 levee vegetation guidance, which replaced the
guidelines.
be required to revise current
2009 guidance.
guidelines.
Economic
§147 would require economic
No comparable provision.
No comparable provision.
Analysis of
analysis for feasibility studies to
Flood Damage consider: reduction in damage to
Reduction
infrastructure and public and private
Projects
property; direct and indirect
economic benefits including national
and regional economic volatility,
disruption, and losses; and public
safety benefits.
CRS-42
Topic
H.R. 3080
S. 601
Conference
NFIP Levee
No comparable provision.
§2021 would authorize the ASA to
§3014 would direct the ASA to ensure that an activity under the Corps’
Certification/
carry out levee system evaluations
inspection of completed works program provide adequate information to reach
Accreditation
for FEMA Levee Accreditation for
a levee accreditation decision under FEMA’s regulation for the mapping of
the National Flood Insurance
areas protected by levees, and to better align the timing of Corps inspections
Program (NFIP) for federally
with National Flood Insurance Program (NFIP) schedules. §3014 also would
authorized projects at a 65%
authorize the ASA to carry out certain levee system evaluations of federally
federal/ 35% nonfederal cost-share
authorized levees for NFIP levee accreditation purposes at a 50% federal/ 50%
(subject to nonfederal ability-to-
nonfederal cost-share and using amounts made available through the Corps’
pay). No authorization of
Planning Assistance to States authority (which is modified by §3015 of the
appropriation is specified.
conference report).
Repair and
No comparable provision
§2022 would authorize the ASA to
§3017 would authorize the ASA for 10 years after enactment to perform cost-
Restoration of
repair or restore federally
shared restoration of already constructed, federally authorized hurricane and
Federally
authorized flood damage reduction
storm damage reduction projects to authorized levels of protection resulting
Authorized
projects to authorized levels
from consolidation, settlement, subsidence, sea level rise, and new datum if the
Flood Damage
including for reasons of settlement,
ASA determines the work is technically feasible, environmentally acceptable,
Reduction
subsidence, sea level rise, or new
and economically justified; the ASA is limited to using this authorization on
Projects
datum at a 100% federal expense.
projects with project partnerships agreements that state that the nonfederal
The authorization would sunset
entity is in not required to perform restoration for subsidence and sea level
after 10 years, with a total
rise as part of its operation and maintenance responsibilities.
authorization of appropriations of
$250 million.
Extension of
No comparable provision.
§2030 would create a process by
§1037 would authorize that nourishment could continue for three years
Periodic
which the ASA can determine
beyond the maximum period of nourishment (set at 50 years in 42 U.S.C.
Beach
whether to extend for 15 years
1962d-5f) for projects that have their federally cost-shared nourishment
Nourishment
federal participation in periodic
expiring within 5 years of enactment. §1037 would allow the ASA, at the
beach nourishment for projects that request of the nonfederal entity, to review the feasibility of extending
have reached their 50 year
nourishment for fifteen years and would make a recommendation on an
construction authorizations.
extension of nourishment extension. The 15-year extension review would
require congressional authorization.
Levee
No comparable provision.
§6004 would authorize a program
§3016 would authorize the ASA to establish a program for levee rehabilitation
Rehabilitation
for levee rehabilitation activities at
assistance activities at 65% federal/35% nonfederal cost-share and a maximum
65% federal/35% nonfederal cost-
federal share per project of $10 mil ion. §3016 would provide annual
share and a maximum federal share
authorization of appropriations of $30 million for FY2015 through 2019.
per project of $10 million. §6009
would provide annual authorization
of appropriations of $300 million
for FY2014 through 2023.
CRS-43
Topic
H.R. 3080
S. 601
Conference
Levee Safety
No comparable provision.
§6005 would establish a National
§3016 would amend an existing authority (33 U.S.C. 3302) for the national
Board/
Levee Safety Advisory Board to
committee on levee safety, including adding the ASA and FEMA Administrator
Committee
provide advice on levee safety and
as nonvoting members and direction on committee duties and roles; the
to monitor the effectiveness of the
committee is to report to the ASA and Congress on the effectiveness of the
national levee safety program
levee safety initiative.
created in §6004.
Levee Safety
No comparable provision.
§6007 would require the ASA to
§3016 includes a provision similar to S. 601.
Status and
report every two years on the
Levee Liability
nation’s levees, and once on levee
Reports
liability issues.
Source: CRS.
CRS-44
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Restoring and Protecting Aquatic Ecosystems
As part of its mission, the Corps undertakes projects and activities intended to restore the
structures, function and natural processes of aquatic ecosystems to a more natural condition. It
also has authorities related to control of invasive species at its projects. Congress directs and
facilitates these actions through project-specific provisions and programmatic provisions that
direct broader Corps authorities and efforts, among other things.
Ecosystem Restoration31
The conference report contains provisions that would authorize new construction projects that
aim to restore aquatic resources. Project-specific authorizations (discussed in an earlier section,
“Authorizing Projects and Managing Subsequent Authorizations”) include projects that are part of
comprehensive efforts to restore the Everglades and Coastal Louisiana. For the Everglades, the
conference report would authorize four projects at a total cost of approximately $1.9 billion.32 For
Coastal Louisiana, the conference report would authorize seven projects under the Louisiana
Coastal Area (LCA) restoration program at a total cost of $2.1 billion. Overall, the conference
report would authorize new restoration projects at a total cost of $6.05 billion ($3.62 billion in
federal costs and $2.43 billion in nonfederal costs). It would also authorize other multi-purpose
projects with environmental restoration elements.
The conference report (see Table 11) would direct new studies in specific geographic locations
which may result in new major ecosystem restoration construction efforts, including efforts in
Coastal Louisiana, the North Atlantic coast, and Chesapeake Bay, among other places. In most
cases, additional actions by Congress would be required to authorize new physical construction in
these areas. Similar to S. 601, the conference report (§4011) would authorize ten feasibility
studies to be drawn from a 2012 Louisiana state plan (i.e., Louisiana Comprehensive Master
Plan) and incorporated into the existing Corps LCA program and reporting requirements. These
studies would be in addition to the LCA projects authorized for construction referenced above.
Similar to S. 601, the conference report (§4009) would authorize a new feasibility study for
coastal ecosystem restoration projects in a large region of the Northeast. This North Atlantic
coastal study could result in a recommendation for authorization of new restoration efforts in
coastal areas from Virginia to Maine. The conference report also would allow the Corps to carry
out projects identified by the North Atlantic coastal study using existing relevant authorizations
for smaller projects (i.e., projects under the Corps Continuing Authorities Programs).
Construction of new projects that are not already authorized would require additional
authorization by Congress. The conference report also would authorize an ocean and coastal
ecosystem resiliency program, which is discussed in the “Addressing Other Issues” section below.
The conference report would also authorize additional restoration studies and work in the
Chesapeake Bay. Similar to H.R. 3080, the conference report (§4010) would convert an existing
Corps Chesapeake Bay watershed assistance authority from a pilot program to a “program.”
31 This section was written by Charles V. Stern, Specialist in Natural Resources Policy, 7-7786, and Pervaze A. Sheikh,
Specialist in Natural Resources Policy, 7-6070.
32 For more information on progress toward Everglades restoration, see CRS Report R42007, Everglades Restoration:
Federal Funding and Implementation Progress, by Charles V. Stern.
Congressional Research Service
45
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Assistance would be provided for a variety of projects and activities, ranging from sediment and
erosion control to ecosystem restoration. The projects and activities would have to follow a
comprehensive restoration plan, which the ASA would be directed to complete within two years
of enactment in cooperation with other federal agencies, state and local government officials and
affected stakeholders. The program’s authorization of appropriations would remain unchanged at
$10 million. The conference report would also change the authorization for appropriations from
$50 million to $60 million for carrying out oyster restoration activities in the Chesapeake Bay.
Provisions in the conference report propose to provide direction for environmental restoration
work by the Corps. Similar to S. 601, the conference report (§1011(b)) would establish general
criteria for prioritizing funding for environmental restoration projects. It would specify that those
projects which address threats to public safety, restore ecosystems of national significance, and
which are of significance for federally protected species (including migratory birds) should be
prioritized for funding. It also specifies that projects that contribute to other ongoing restoration
efforts should receive priority. It is unknown to what extent this would alter the Administration’s
Corps budget development process, which recently has reflected other priorities and criteria.
Invasive Species
The conference report would also incorporate elements that propose to address invasive species.33
Similar to S. 601, the conference report (§1039(b)) would require an interagency review of
federal invasive species authorities.34 Similar to H.R. 3080 , the conference report would also
require a GAO report on the adequacy of federal invasive species activities, among other things.
The conference report (§1039(c)) would alter existing Corps invasive species authorities (33
U.S.C. 610). It would add to the current Corps authority to control noxious aquatic plant growths
at navigable waters, tributary streams, connecting channels, and other waters of the United States.
In addition to the current Corps authority, it would authorize the Corps to conduct efforts to
control “aquatic invasive species” in these areas and add “prevention” to the current authorized
activities of control and eradication. It would also increase Corps authorized appropriations for
these activities from $15 million to $20 million annually for aquatic plant control, $20 million
annually for the new authority for aquatic invasive species.
The conference report also would direct invasive species work in specific basins and water
bodies. The conference report (§1039(b)) would authorize an interagency effort to combat the
spread of Asian carp in the Upper Mississippi and Ohio River basins. This would include
authority for the federal government to provide aid, including technical assistance, to state and
local governments.35 In addition to this effort, it would also expand reporting requirements
associated with Asian carp. The approach in the conference report in this respect is similar to both
S. 601 and H.R. 3080. In addition to these activities, the conference report (§1039(c)), similar to
S. 601, would authorize the establishment of watercraft inspection stations in the Columbia River
Basin, to prevent the spread of aquatic nuisance species at Corps reservoirs in this region.
33 For more information on federal invasive species activities, see CRS Report R43258, Invasive Species: Major Laws
and the Role of Selected Federal Agencies, by M. Lynne Corn and Renée Johnson.
34 The review would be carried out by the Corps, the Fish and Wildlife Service, and the Tennessee Valley Authority.
35 To date, the federal government has been involved in significant efforts to control Asian carp that have focused on
the connection between the Great Lakes and the Mississippi River in the Chicago area, as well as control efforts and
study of other areas. For more information on Asian carp, see CRS Report R41082, Asian Carp and the Great Lakes
Region, by Charles V. Stern, Harold F. Upton, and Cynthia Brougher.
Congressional Research Service
46
Table 11. Select Ecosystem Restoration and Invasive Species Provisions
Topic
H.R. 3080
S. 601
Conference
Invasive
§137 would amend 33 U.S.C. 610(a) No comparable provision.
§1039(c) is similar to the provision in H.R. 3080, but would add additional
Species
to expand Corps authorities to
authority for the Corps to conduct “prevention” efforts related to
Control
control invasive species beyond
invasive species and would increase the authorization of appropriations
aquatic plants to include aquatic
for Corps invasive species activities.
invasive species on all waters of the
United States.
Asian Carp
§144 would authorize an
§2052 contains a similar provision to
§1039(b) would authorize a provision similar to H.R. 3080 and S. 601.
Control
interagency effort to combat the
H.R. 3080.
spread of Asian carp in the Upper
Mississippi and Ohio River basins,
and require related reports.
Invasive
§145 would require GAO to report
§2052 would require an interagency
§1039(b) would require the studies included in both the H.R. 3080 and S.
Species
on the adequacy of the federal
review of federal invasive species
601.
Studies
government’s investment in invasive authorities by the Corps, the Fish and
species activities, among other
Wildlife Service, and the Tennessee
things.
Valley Authority.
Ecosystem
No comparable provision.
§2045 would direct that funding be
§1011 would authorize a provision similar to S. 601
Restoration
prioritized for ecosystem restoration
Funding
projects that address threats to public
Prioritization
safety, restore ecosystems of national
significance, and are significant for
federally protected species (e.g.,
migratory birds). It also would prioritize
projects that contribute to other
ongoing Federal, state, or local
restoration efforts.
CRS-47
Topic
H.R. 3080
S. 601
Conference
Louisiana
No comparable provision.
§3018 would authorize 10 feasibility
§4011 would authorize a provision similar to S. 601.
Coastal Area:
studies to be drawn from a 2012
New
Louisiana state plan (i.e., Louisiana
Feasibility
Comprehensive Master Plan) and
Studies
incorporated into the existing Corps
LCA program and reporting
requirements.
North Atlantic No comparable provision.
§5002 would authorize a new feasibility
§4009 would authorize a provision similar to S. 601.
Coastal
study for coastal ecosystem restoration
Restoration
projects in the Northeast, from Virginia
to Maine, and would require
recommendations to Congress.
Chesapeake
No comparable provision.
§5003 would change an existing
§4010 would authorize a provision similar to both provisions in S. 601
Bay:
authority for Corps financial assistance
Restoration
for restoration in the Chesapeake Bay
Assistance and
watershed from a pilot program to a
Oyster
“program.” Assistance would be
Restoration
authorized for a range of activities, from
sediment and erosion control to
ecosystem restoration. Activities would
have to follow a comprehensive
restoration plan, which the ASA is to
develop within two years in cooperation
with other agencies and stakeholders.
The existing authorization of
appropriations of $10 million is
unchanged. §5014 would change the
authorization of appropriations from $50
million to $60 million for Corps
Chesapeake Bay oyster restoration
activities.
Columbia
No comparable provision.
§5007 would authorize invasive species
§1039(c) would authorize a provision similar to S. 601.
River Invasive
control activities on the Columbia River,
Species
to include watercraft inspection stations.
Control
Source: CRS.
CRS-48
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Deauthorizing Projects and Managing the Backlog
The Corps has a “backlog” of $62 billion in authorized construction on more than 1,000 projects;
its annual construction appropriations, however, have been less than $2 billion in recent years and
have been declining as more resources shift to operations and maintenance and as supplemental
appropriations are used for construction in disaster affected areas. No publicly available list or
database of these project authorizations, their status, and their cost to complete is available. There
is a current process in place to deauthorize Corps projects; in the recent past, the process has not
resulted in significant deauthorizations or in reducing the size and growth of the backlog.
Under 33 U.S.C. 579a(b)(2), the ASA is directed to annually transmit to Congress a list of
authorized projects and project elements with no obligations of funding during the last full five
fiscal years. This list is published in the Federal Register. Without an ASA transmittal of a list,
the deauthorization process is not initiated. If funds are not obligated for a project’s planning,
design, or construction during the fiscal year following publication in the Federal Register, the
project or element is deauthorized. The Secretary last transmitted a new list in 2007; those
deauthorizations became final in 2009.
The conference report, as shown in Table 12, would require that the ASA: (1) develop an interim
deauthorization list of projects authorized prior to WRDA 2007(including environmental
infrastructure projects) that have either not initiated construction or not received funding for six
fiscal years, (2) provide opportunity for public comment on this list, and (3) develop a final
deauthorization list, within 120 days after the public comment period, representing at least a
federal cost to complete equal of $18 billion. The projects on the final list would be automatically
deauthorized after 180 days unless Congress passes a joint resolution disapproving the final
deauthorization list. The conference report does not alter the existing requirement under 33
U.S.C. 579a for the ASA to annually transmit to Congress a list of authorized projects and project
elements with no obligations of funding during the last full five fiscal years, thus maintaining this
annual deauthorization process after enactment. The ASA letter to the conference managers stated
the Administration’s support creating an annual process for identifying projects for
deauthorization.36
For Further Reading
CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations,
and Activities, by Nicole T. Carter and Charles V. Stern.
36 See footnote 2.
Congressional Research Service
49
Table 12. Select Provisions on Deauthorization and Managing the Backlog
Topic
H.R. 3080
S. 601
Conference
Construction §119 would require the President’s
No comparable provision.
No comparable provision.
Projects in the annual budget submission to identify
President’s
the Corps construction projects
Budget
recommended to receive full
Request for
funding in the fiscal year and the
Construction four succeeding fiscal years. The
Projects
recommendations are to be based
on the assumption of $2 billion for
the construction account annually.
One-Time
§301 would require the ASA within
§2049 would establish an
§6001 would require that the ASA: (1) develop an interim deauthorization list
Construction 90 days of enactment to identify
independent infrastructure
of projects (and separable elements of projects) authorized prior to WRDA
Deauthoriza-
and publish in the Federal Register a
commission that would be required
2007(including environmental infrastructure projects) that have either not
tion Process
list of $12 billion in federal
to within 4 years of enactment
initiated construction or not received funding for six fiscal years, (2) provide
authorizations for pre-WRDA 2007
identify a list of pre-WRDA 1996
opportunity for public comment on this list, and (3) develop a final
projects (or project elements) to
projects for deauthorization. The
deauthorization project list. The sum of the cost to complete the projects on
deauthorize; eligible projects must
identified projects would be
the final deauthorization list would be required to equal at least $18.0 billion in
have never initiated construction or deauthorized 180 days later unless
federal costs to complete. The ASA would be required to submit the final
had no federal or nonfederal funds
Congress passes a joint resolution
deauthorization list to the House T&I and Senate EPW Committees and
obligated for the last five years. The
disapproving the entire list. §2049
publish the list in the Federal Register no later than 120 days after the close of
list would be constructed starting
would identify criteria that would
the public comment period; 180 days after the submission of the final list,
with the oldest project
make projects ineligible for the
unless Congress passes a joint resolution disapproving the list, the listed
authorizations; the identified
deauthorization list.
projects (or separable elements of projects) are deauthorized. This is a one-
projects would be deauthorized 180
time requirement.
days later unless the nonfederal
sponsors fund completion.
Property
§302 would require the ASA to
No comparable provision.
§6002 would authorize a provision similar to H.R. 3080.
Inventory and report to Congress within a year
Identification after enactment an assessment of all
of Excess
Corps properties and to provide an
Properties
inventory of properties no longer
needed for the agency’s missions.
CRS-50
Topic
H.R. 3080
S. 601
Conference
Future
§303 would deauthorize any
§2049 would clarify the
§6003 would authorize a provision similar to H.R. 3080. The conference report
Deauthoriza-
construction project authorized by
deauthorization process in 33
would make no changes to the current deauthorization process (33 U.S.C.
tion Process this act after seven years if no
U.S.C. 579a; the ASA would be
579a) beyond the one-time deauthorization process in §6001.
funding had been obligated for
required to submit a list of projects
construction. H.R. 3080 would
that have received no obligations
make no changes to the current
for five fiscal years; a listed project
deauthorization process (33 U.S.C.
would be deauthorized one year
579a).
later unless it has obligations.
Backlog
§303 would require 12 years after
No comparable provision.
§6003 would authorize a provision similar to H.R. 3080.
Tracking
enactment the ASA to report to
House T&I and Senate EPW
Committees on any incomplete
construction projects authorized by
this act, a description of why the
project was not completed, a
schedule for completion, a 5 to 10
year projection of the construction
backlog, and recommendations for
how to mitigate the backlog.
Construction No comparable provision.
§2049 would require the ASA, 180
§6001 would require the ASA, within one year of enactment, to publish a list of
Backlog List
days after enactment, to publish a
all uncompleted, authorized construction projects and to provide each
list of all uncompleted, authorized
project’s status and cost of completion. After submitting the list to the House
construction projects and to
T&I and Senate EPW Committees and the Office of Management and Budget
provide each project’s status and
(OMB), the ASA shall make the list publically available.
cost of completion. After 30 days of
providing Congress the report, the
ASA would make the report
publically available.
Source: CRS.
CRS-51
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Addressing Other Issues
Oil Spill Prevention on Farms37
S. 601 included a provision to amend the Environmental Protection Agency’s Oil Spill
Prevention, Control and Countermeasure (SPCC) regulations; no comparable provision was
included in H.R. 3080. S. 601 would have amended the scope and applicability of the program.
One provision stated that certain farms would not require a “certification of a statement of
compliance with the rule.” According to communications with EPA, this provision would not
eliminate the requirement to create an SPCC plan.38 In contrast, the conference report, as shown
in Table 13, would exempt the following farms from the SPCC regulations: (1) farms with no
reportable discharge history and an aggregate aboveground storage of less than 6,000 gallons (or
a to-be-determined lower threshold) and (2) farms with an aggregate aboveground storage of less
than 2,500 gallons.
Clean Water Act Amendments
The conference report includes amendments to a number of the water infrastructure provisions of
the Clean Water Act (CWA). The CWA amendments, which were not included in either S. 601 or
H.R. 3080, are drawn from several provisions of H.R. 1877, the Water Quality Protection and Job
Creation Act of 2013.39 Most would address CWA Title VI, which authorizes grants to states to
capitalize state loan programs (State Revolving Funds, or SRFs) for wastewater treatment facility
projects; the conference report (Section 5006) provides that the effective date of these provisions
is October 1, 2014. Some of the provisions included in the conference report have been included
in other legislative proposals in recent Congresses that have not advanced (such as extending loan
repayment from 20 years to 30 years, including land acquisition in the definition of “treatment
works,” and explicitly allowing SRF monies to be used for security projects). Several of them
have been included in enacted appropriations bills and would now be codified in the CWA (such
as expanding the list of SRF-eligible projects to include energy- and water-efficiency, increasing
assistance to Indian tribes, and imposing “Buy American” requirements, which were included in
EPA’s FY2014 appropriation, P.L. 113-76). The CWA provisions included in the conference
report would be the first amendments to CWA Title VI since 1987. However, the amendments
would not address other long-standing or controversial Title VI issues, such as: authorization of
appropriations for capitalization grants, which expired in FY1994; state-by-state allocation of
capitalization grants; and retaining applicability of prevailing wage requirements under the Davis-
Bacon Act.
37 This section was written by Jonathan L. Ramseur, Specialist in Environmental Policy, 7-7919.
38 Personal communication with EPA, June 6, 2013. For more information on SPCC, contact Jonathan L. Ramseur,
Specialist in Environmental Policy, 7-7919.
39 H.R. 1877 had been referred to House T&I and House Ways and Means Committees. No further action had been
taken. H.R. 1877 included a number of other CWA provisions that are not included in the conference report.
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Ocean Policy40
The conference report includes neither ocean related provisions of H.R. 3080 and S. 601, as
shown in Table 13. Instead, it (§4014) would authorize the Corps to study projects in coastal
zones to enhance ocean and coastal ecosystem resiliency; it would authorize the Corps to perform
identified projects consistent with criteria in other related Corps CAP programs, or include a
recommendation for congressional authorization of a project in the Annual Report. During House
floor consideration of H.R. 3080, a provision (§146) was added prohibiting programs or actions
authorized by H.R. 3080 to be used for furthering implementation of Executive Order 13547,
related to coastal and marine spatial planning.41 The House floor debate largely focused on
implementation of recommendations from a report by the Interagency Ocean Policy Task Force.
The recommendations support a national ocean policy, a coordination framework, and
implementation strategy for the stewardship of the ocean, coasts, and the Great Lakes, and a
framework for effective coastal and marine spatial planning.42 The ASA’s December 2013 letter to
the conference managers states that “the Administration strongly opposes Sec. 146 of H.R.
3080.”43 S. 601 contained a different ocean policy provision. S. 601 would have established a
National Endowment for the Oceans. Deposits would include amounts appropriated and
dividends and interest accruing from investment of the fund’s monies. The endowment would
have disbursed funds to coastal states, other coastal authorities, and federal agencies to support
ocean and coastal management. The provision was similar to a previous proposal made by the
U.S. Commission on Ocean Policy.44 The Commission recommended establishment of an Ocean
Policy Trust Fund in the U.S. Treasury.45 In contrast to S. 601, the Commission recommended
funding from outer continental shelf oil and gas activities and from new activities in federal
waters. Since the release of the Commission’s final report in 2004 at least 12 bills have been
introduced to establish an ocean trust fund or ocean endowment. Concerns related to the
endowment include potential reductions in current program appropriations and potential tax
increases to raise funds for the endowment.46
For Further Reading
CRS Report R43306, Spill Prevention, Control, and Countermeasure (SPCC) Regulations:
Background and Legislation in the 113th Congress, by Jonathan L. Ramseur.
CRS Report R42883, Water Quality Issues in the 113th Congress: An Overview, by Claudia
Copeland.
40 This section was written by Harold F. Upton, Analyst in Natural Resources Policy,7-2264.
41 Executive Order E.O. 13547, “Stewardship of the Ocean, Our Coasts, and the Great Lakes,” 75 Federal Register
43023, July 22, 2010.
42 White House Council on Environmental Quality, Final Recommendations of the Interagency Ocean Policy Task
Force, July 19, 2010, http://www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf. For more information on the
report or Executive Order 13547, contact Curry L. Hagerty, Specialist in Energy and Natural Resources Policy.
43 See footnote 2.
44 The commission was mandated by the Oceans Act of 2000 (P.L. 106-256). The 16 members were appointed by
President Bush on July 3, 2001.
45 U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century, Washington DC, 2004,
http://govinfo.library.unt.edu/oceancommission/documents/full_color_rpt/welcome.html#full.
46 For more on the endowment, contact Harold F. Upton, Analyst in Natural Resources Policy, 7-2264.
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Table 13. Select Ocean Policy, Oil Spill Prevention, and Clean Water Act Provisions
Topic
H.R. 3080
S. 601
Conference
National Ocean §146 would prohibit actions
No comparable provision.
No comparable provision.
Policy
authorized in this act to be used
Implementation to implement coastal and
maritime spatial planning under
an Obama Executive Order
13547.
National
No comparable provision.
Title XII would establish the National No comparable provision.
Endowment for
Endowment for the Oceans as a
the Oceans
permanent Endowment fund to be
administered by the National Fish
and Wildlife Foundation and the
Secretary of Commerce. Deposits
would include amounts appropriated
and dividends and interest accruing
from investment of the fund’s
monies. The endowment would
support activities to restore, protect,
maintain, or understand living marine
resources and their habitats and
ocean, coastal, and Great Lakes
resources. Each year at least 59% of
grants would be to coastal states and
39% used as national grants.
Corps Ocean
No comparable provision.
No comparable provision.
§4014 would authorize the ASA to undertake studies to determine the
and Coastal
feasibility of carrying out Corps projects in coastal zones to enhance ocean and
Resiliency
coastal ecosystem resiliency. §4014 would authorize the Corps to perform
Authority
identified projects consistent with criteria in other related Corps CAP
programs, or include a recommendation for the project in the Annual Report
(§7001). §4014 would limit the ASA to carrying out projects that have been
requested by the Governor or chief executive officer of a coastal state. §4014
does not provide an authorization of appropriations for this authority.
CRS-54
Topic
H.R. 3080
S. 601
Conference
EPA’s Oil Spill
No comparable provision.
§13001 would amend the scope and §1049 would amend the scope and applicability of the SPCC regulatory
Prevention,
applicability of the SPCC regulatory
program. Among other provisions, §1049 would increase the oil storage
Control and
program. Among other provisions,
threshold at farms requiring a certification from a Professional Engineer and the
Countermeasure
§13001 would increase the oil
threshold allowing farms to self-certify their SPCC plans. In addition, the
(SPCC) Program
storage threshold at farms requiring a fol owing farms would not be subject to the SPCC regulations: (1) farms with
certification from a Professional
no reportable discharge history and an aggregate aboveground storage of less
Engineer and the threshold allowing
than 6,000 gallons (or a to-be-determined lower threshold) and (2) farms with
farms to self-certify their SPCC plans. an aggregate aboveground storage of less than 2,500 gallons.
In addition, farms with an aggregate
aboveground storage of 6,000 gal ons
or less would not require a
“certification of a statement of
compliance with the rule.”
Clean Water
No comparable provision
No comparable provision
§5002 would modify Clean Water Act (CWA) Title VI to add several
Act
requirements as conditions for receiving assistance from a State Revolving Fund
Infrastructure
(SRF), such as requiring recipients to development and implement a fiscal
Assistance
sustainability plan. §5004 would require SRF recipients to use American-made
iron and steel products. §5003 would expand the list of projects and activities
eligible for SRF assistance and extends the repayment terms of an SRF loan from
20 years up to 30 years.
Clean Water
No comparable provision
No comparable provision
§5003 would authorize states to provide additional subsidization through
Act SRF
forgiveness of principal and negative interest loans. A state may provide
Additional
additional subsidization only in years in which total appropriations for clean
Subsidization
water SRF capitalization grants exceed $1 million, but may use not more than
30% of capitalization grants for such purpose.
Clean Water
No comparable provision
No comparable provision
§5005 would direct EPA to review and report to Congress on the existing
Act SRF
statutory formula that governs state-by-state allocation of SRF capitalization
Capitalization
grants, which has been unchanged since 1987.
Grant Allotment
Clean Water
No comparable provision
No comparable provision
§5011 would retitle CWA §122 as “Watershed Pilot Projects” and amend it to
Act Watershed
authorize projects to manage, reduce, treat, recapture or reuse municipal
Pilot Projects
stormwater through watershed partnerships, integrated water resource
planning, municipality-wide stormwater management planning, and projects to
increase resilience of publicly owned wastewater treatment works.
CRS-55
Topic
H.R. 3080
S. 601
Conference
Clean Water
No comparable provision
No comparable provision
§5013 would increase the amount of assistance for Indian tribes under CWA
Act Tribal
§518 to not less than 0.5% and not more than 2.0% of funds available under
Assistance
CWA Title VI.
Source: CRS.
CRS-56
H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Appendix. Crosswalk of Titles and Subtitles of
Conference Report, H.R. 3080, and S. 601
Table A-1. Crosswalk of Conference Report, H.R. 3080, and S. 601 Bill Titles
Conference
Titles of H.R. 3080
Titles of S. 601
Title I−Program Reforms and Streamlining
Title I−Program Reforms and
Title II−Water Resources Policy
Streamlining
Reforms
Title II−Navigation Improvements
Subtitle A−Inland Waterways
Title II Subtitle B−Inland Waterways
Title VII−Inland Waterways
Subtitle B−Port and Harbor
Title II Subtitle A−Ports Title
VIII−Harbor Maintenance
Maintenance
Title III-Safety Improvements and
Addressing Extreme Weather Events
Subtitle A-Dam Safety
(some comparable provisions in Title I)
Title IX−Dam Safety
Subtitle B-Levee Safety
(some comparable provisions in Title 1)
Title VI−Levee Safety
Subtitle C-Additional Safety
(some comparable provisions in Title 1)
Title XI−Extreme Weather
Improvements and Risk Reduction
Measures
Title IV-River Basins and Coastal Areas
(some comparable provisions in Title 1)
Title V−Regional and Nonproject
Provisions
Title V-Water Infrastructure Financing
Title X−Innovative Financing Pilot
Projects
Title VI−Deauthorization and Backlog
Title III−Deauthorization and Backlog
Some comparable provisions in Title II
Prevention
Prevention
Title VII−Water Resources Infrastructure
Title IV−Water Resources
Some comparable provisions in Title I
Infrastructure
Title III−Project Modifications
(some comparable provisions in Title VII)
(some comparable provisions in Title 1)
Title IV−Water Resources Studies
(comparable provisions on oil spill
(ocean policy provision in Title 1)
Title XII – Miscel aneous
prevention in Title I)
(ocean-related provision in Title IV)
Source: CRS.
Congressional Research Service
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H.R. 3080 and S. 601: Comparison of Select Provisions and Conference Developments
Author Contact Information
Nicole T. Carter
Linda Luther
Specialist in Natural Resources Policy
Analyst in Environmental Policy
ncarter@crs.loc.gov, 7-0854
lluther@crs.loc.gov, 7-6852
Charles V. Stern
Claudia Copeland
Specialist in Natural Resources Policy
Specialist in Resources and Environmental Policy
cstern@crs.loc.gov, 7-7786
ccopeland@crs.loc.gov, 7-7227
John Frittelli
Specialist in Transportation Policy
jfrittelli@crs.loc.gov, 7-7033
Congressional Research Service
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