Water Resources Development Act of 2007--Continued

Floor Speech

WATER RESOURCES DEVELOPMENT ACT--Continued -- (Senate - May 15, 2007)

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Mrs. BOXER. I would be happy to respond to the Senator from Wisconsin.

Mr. REID. I, too, am happy to engage in a colloquy with the Senator from Wisconsin.

Mr. FEINGOLD. I appreciate the efforts and success of the chairman and the Environment and Public Works Committee in reporting a Water Resources Development Act that includes many important Corps of Engineers reforms. I would simply like to clarify that it is the intent of the committee and of the majority leader that these provisions be retained through conference and enacted into law. These provisions should be the minimum reforms coming out of conference.

Mrs. BOXER. I concur that this is the committee's intent.

Mr. REID. I support the understanding reached by the chairman and the Senator from Wisconsin.

Mr. FEINGOLD. I would like to point out some of the critical elements to ensuring meaningful independent review of Corps of Engineers water resources projects that are contained in section 2007 of S.1248. Section 2007 is the same language that was adopted on the Senate floor during last summer's consideration of the Water Resources Development Act of 2006. Though the House of Representatives has an independent review provision in their bill, there are several important distinctions between the House and the Senate provisions.

The Senate provision houses responsibility for independent review in the Office of the Secretary of the Army and makes independent review mandatory for any project meeting the review triggers. The mandatory review triggers and placement of responsibility for carrying out independent reviews outside the Office of the Chief of Engineers are essential for ensuring full independence of the review process. The Senate provision gives the independent review panels the ability to review those issues deemed significant by the panel. This is essential for ensuring that all relevant study issues are examined by the panel. The House of Representatives provision gives the Chief of Engineers essentially unlimited authority to restrict the scope of a panel's review. The Senate provision places limits on the Corps' ability to ignore panel recommendations by requiring the Secretary of the Army to provide a written explanation regarding the rejection of any panel recommendations and by requiring the Corps to prove why it is appropriate to reject a panel's recommendation in any lawsuit that might be brought to challenge the project. The Senate bill does not create a new cause of action. This is essential for ensuring that the findings of an independent review panel are given appropriate consideration by the Corps of Engineers. In addition, the Senate provision establishes a critical safety assurance review of the detailed technical design of vital flood control projects. The House language does not include this essential provision.

Importantly, the Senate provision ensures that the independent review panel will review the draft study released for public comment and will have the benefit of public comment to help guide their review. The House bill in general requires that independent review be complete before there is a draft study for review. That would limit a fundamental purpose of independent review, which is to ensure review of draft studies and limit public participation in the independent review process.

I ask my colleagues to concur with the importance of retaining these critical elements of independent review contained in Section 2007.

Mrs. BOXER. I concur that these are fundamental elements of meaningful independent review and concur that it is the committee's intent to retain these elements and that we will strenuously support them in the conference.

Mr. REID. I support the understanding reached by the chairman and the Senator from Wisconsin.

Mr. FEINGOLD. Mitigation for Corps of Engineers civil works projects is another important area that must be improved. Despite the clear mitigation requirements established for water resources projects in the Water Resources Development Act of 1986, the Government Accountability Office reported in 2002 that the Corps of Engineers does not mitigate at all for almost 70 percent of its projects. To help address this problem, the Senate provision requires the Secretary to ensure that mitigation for water resources projects complies fully with the mitigation standards and policies established pursuant to section 404 of the Federal Water Pollution Control Act, 33 U.S.C. 1344. This will help protect the environment and is consistent with the fundamental principal that we will hold the Federal Government to the same environmental criteria as private enterprise.

In addition, in order to ensure that mitigation produces the same or greater ecosystem values as those lost to a water resources project, the Senate provision requires that the Corps of Engineers implement not less than in-kind mitigation. To ensure that mitigation will be effective, the Senate bill requires the preparation of detailed mitigation plans, requires that mitigation be monitored until ecological success criteria are met, and requires the Corps of Engineers to consult yearly with applicable Federal and State agencies on the status of individual mitigation efforts. The Senate provision applies the new mitigation standards to projects that the Corps of Engineers has determined must be reevaluated for other reasons. The Senate provision also requires the Corps to establish a publicly accessible mitigation tracking system.

The language of sections 2008(c) and (e) obtained bipartisan support from the Environment and Public Works Committee last Congress and was included in the Senate Water Resources Development Act of 2006.

I ask my colleagues to concur with the importance of retaining these key elements of mitigation reform contained in section 2008(c) and (e).

Mrs. BOXER. I concur that these are fundamental elements of meaningful mitigation reform and concur that it is the committee's intent to retain these elements and that we will strenuously support them in the conference.

Mr. REID. I support the understanding reached by the chairman and the Senator from Wisconsin.

Mr. FEINGOLD. Lastly, section 2006 of S. 1248 would update the Corps' woefully out-of-date Principles and Guidelines, P&G, and related planning documents by establishing a Cabinet-level interagency working group to revise the guidelines and regulations and circulars, which have not been revised since their inception in 1983. Numerous studies have called for updating the Corps' planning guidelines to provide an increased focus on protecting and restoring the environment and to modernize and incorporate new methods and more cost-effective approaches to solving water problems. More than a decade of reports from the National Academy of Sciences, Government Accountability Office, Army inspector general, U.S. Commission on Ocean Policy, and independent experts have revealed a pattern of stunning flaws in U.S. Army Corps of Engineers project planning and implementation and urged substantial changes to the Corps' project planning process. The most recent call for revising the Corps' planning guidelines came just 2 months ago from the National Academy of Public Administration.

These flaws have increased taxpayer costs and environmental degradation with antiquated economic analysis of projects and in some cases overly structural projects. It is vital that these planning guidelines be modernized so that they no longer promote projects that destroy healthy natural ecosystems and lure development in high risk areas. It is also essential that the provision to require the Corps to adopt those revisions, subject to public comment, be retained.

The language of section 2006 obtained bipartisan support from the Environment and Public Works Committee last Congress and was included in the Senate Water Resources Development Act of 2006.

I ask my colleagues to concur with the importance of retaining these elements.

Mrs. BOXER. I concur that these are fundamental elements of meaningful reform of the Corps of Engineers planning guidelines and concur that it is the committee's intent to retain these elements and that we will strenuously support them in the conference.

Mr. REID. I support the understanding reached by the chairman and the Senator from Wisconsin.

Mr. FEINGOLD. I thank the chairman and the majority leader for engaging in this colloquy. Instituting meaningful reforms to the Corps of Engineers' planning process is essential for protecting public safety, the environment, and the taxpayers. I remain committed to ensuring that meaningful reforms are included in the next Water Resources Development Act that is enacted into law. I thank the chairman and the majority leader for their commitment as well.

MIDDLE CREEK PROJECT

Mr. REID. Mr. President, I thank Chairman Boxer and the Committee on Environment and Public Works for their hard work on S. 1248, the Water Resources Development Act of 2007 and the bill currently being considered by the Senate, H.R. 1495. The bill represents years of negotiations by her, members of the committee, and staff, and I appreciate her leadership in bringing a bill forward for this body's consideration.

Mrs. BOXER. Mr. President, I thank the leader for his comments. I appreciate the leader's continued support for this reauthorizing legislation and the authorization of the new projects for navigation, flood and coastal storm damage reduction, ecosystem restoration and environmental remediation, and water storage and water quality.

Mr. REID. Mr. President, I generally support this bill and understand that many of the projects are necessary to improve and maintain safe communities. But I am concerned about the effects of one project on Indian lands.

Both S. 1248 and H.R. 1495 include authorizing language for a flood damage reduction and environmental restoration project on Middle Creek, located in Lake County, CA. I certainly defer to the U.S. Army Corps of Engineers and the California congressional delegation as to the project's importance and the most appropriate plan to implement it, but would my friend from California describe the impact of the project on Indian lands in the area?

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Mrs. BOXER. Mr. Leader, the Middle Creek Project will restore lands within the Middle Creek floodplain and study area. I believe the project will reconnect the floodplain of Middle Creek to the historic Robinson Lake wetland area by breaching the existing levee system and creating inlets that direct flows into the study area. The restoration will provide flood damage reduction by relocating residents of the Robinson Rancheria from the floodplain.

Mr. REID. Madam Chairman, I understand the Rancheria's current casino will not be affected by this project if implemented--that the Rancheria could continue, if it chooses, to operate this casino once the project is completed. Is this correct?

Mrs. BOXER. Mr. Leader, that is correct.

Mr. REID. Madam Chairman, I understand that neither the Senate nor the House bill authorizes the Secretary of the Interior to take land into trust for purposes of gaming on behalf of the Rancheria?

Mrs. BOXER. Mr. Leader, the bill under consideration would authorize the Middle Creek Project. The bill does not expressly authorize the United States to take land into trust for the Rancheria.

Mr. REID. Thank you for that clarification. Madam Chairman, in Senate Report 110-58, the committee recommends that, in exchange for the existing reservation lands that would be included in the floodplain, the Secretary of the Interior accept three parcels of land into trust for the benefit of the Rancheria. Would you describe these parcels and their location in relation to the Rancheria's current reservation boundaries?

Mrs. BOXER. Mr. President, I appreciate the interest of the Senator from Nevada in the effect of this project on the Rancheria. Since 1981, the Secretary of the Interior has held 37 acres in trust on behalf of the Rancheria. The parcels discussed in the committee report are currently owned by the Rancheria and are very close to their current reservation boundary. Two of the three parcels are along the Clear Lake shoreline. The committee believed it was appropriate to compensate the Rancheria by allowing them to add to their reservation lands that are approximately 1 mile away from their current reservation boundary and which the tribe already owns.

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Mrs. BOXER. Mr. President, the California delegation strongly supports the projects included in S. 1248. I hear the majority leader's concerns. Being chair of the committee, I, of course, support the language in the committee's recommendation with respect to the land transfer for the Robinson Rancheria, should the bill be enacted. While I may disagree with the leader's position as it concerns this particular project, I appreciate his comments and support for the legislation as a whole.

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