[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
THE WATER RESOURCES
DEVELOPMENT ACT OF 2007:
A REVIEW OF IMPLEMENTATION
IN ITS THIRD YEAR
=======================================================================
(111-92)
HEARING
BEFORE THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
March 3, 2010
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia VERNON J. EHLERS, Michigan
JERROLD NADLER, New York FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida JERRY MORAN, Kansas
BOB FILNER, California GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas HENRY E. BROWN, Jr., South
GENE TAYLOR, Mississippi Carolina
ELIJAH E. CUMMINGS, Maryland TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania SAM GRAVES, Missouri
BRIAN BAIRD, Washington BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West
TIMOTHY H. BISHOP, New York Virginia
MICHAEL H. MICHAUD, Maine JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona ROBERT E. LATTA, Ohio
CHRISTOPHER P. CARNEY, Pennsylvania BRETT GUTHRIE, Kentucky
JOHN J. HALL, New York ANH ``JOSEPH'' CAO, Louisiana
STEVE KAGEN, Wisconsin AARON SCHOCK, Illinois
STEVE COHEN, Tennessee PETE OLSON, Texas
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
JOHN GARAMENDI, California
VACANCY
(ii)
CONTENTS
Page
Summary of Subject Matter........................................ iv
TESTIMONY
Conrad, David R., Senior Water Resources Specialist, National
Wildlife Federation............................................ 63
Darcy, Hon. Jo-Ellen, Assistant Secretary of the Army for Civil
Works, Department of the Army.................................. 32
Fitzgerald, Steve, Flood Committee Chair, Harris County Flood
Control District, the National Association of Flood and
Stormwater Management Agencies (NAFSMA)........................ 63
Larson, Esq., Amy, President, National Waterways Conference...... 63
Leone, Michael A., Port Director, Maritime Administration,
Massachusetts Port Authority (Massport), American Association
of Port Authorities............................................ 63
Pallasch, Brian, Co-chair, Water Resources Coalition, American
Society of Civil Engineers..................................... 63
Van Antwerp, Lt. Gen. Robert L., Commanding General of the U.S.
Army Corps of Engineers, Department of the Army................ 32
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Johnson, Hon. Eddie Bernice, of Texas............................ 81
Mitchell, Hon. Harry E., of Arizona.............................. 87
Richardson, Hon. Laura, of California............................ 88
Scalise, Hon. Steve, of Louisiana................................ 92
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Conrad, David R.................................................. 94
Darcy, Hon. Jo-Ellen............................................. 118
Fitzgerald, Steve................................................ 125
Larson, Esq., Amy................................................ 131
Leone, Michael A................................................. 147
Pallasch, Brian.................................................. 152
SUBMISSIONS FOR THE RECORD
Committee on Transportation and Infrastructure, Majority Staff,
``The Water Resources Development Act of 2007 Public Law 110-
114 A Report on Implementation in the Third Year,'' report..... 5
Darcy, Hon. Jo-Ellen, Assistant Secretary of the Army for Civil
Works, Department of the Army:.................................
Response to questions from Hon. Bishop, a Representative in
Congress from the State of New York...................... 39
Response to questions from Hon. Oberstar, a Representative
in Congress from the State of Minnesota.................. 61
Van Antwerp, Lt. Gen. Robert L., Commanding General of the U.S.
Army Corps of Engineers, Department of the Army, response to
questions from Hon. Oberstar, a Representative in Congress from
the State of Minnesota......................................... 57
ADDITION TO THE RECORD
American Shore and Beach Preservation Association, written
testimony...................................................... 162
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THE WATER RESOURCES DEVELOPMENT ACT OF 2007: A REVIEW OF IMPLEMENTATION
IN ITS THIRD YEAR
----------
Wednesday, March 3, 2010
House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC.
The Committee met, pursuant to call, at 12:28 p.m., in Room
2167, Rayburn House Office Building, Hon. James Oberstar
[Chairman of the Committee] presiding.
Mr. Oberstar. The Committee on Transportation and
Infrastructure will come to order for the second time today. We
meet today to review implementation of the Water Resources
Development Act of 2007.
I will parenthetically note for the record that this is a
milestone in the Committee's oversight role. Since I was
elected Chairman, it is the 50th oversight hearing conducted by
the Committee since January of 2007.
My predecessor's, for whom I was administrative assistant,
portrait hangs in the corner of the Committee room. John
Blatnik served as Chair of this Committee for 4 years. He
served in the House 28 years and was the first Chairman of the
Special Investigative Committee on the Federal Aid Highway
Program, established at the direction of Speaker Rayburn 3
years after the interstate highway program was enacted to
inquire into allegations of fraud, corruption, and abuse in the
implementation of the interstate program and the Highway Trust
Fund.
There were just scattered reports of abuse of the right of
way acquisitions, of construction practices, of concrete not
being poured that was not up to engineering standards of
bridges that were built that were not 16 feet but a lower
elevation. And Speaker Rayburn said, ``I don't want this
largest public works program in the history of the country and
maybe in the history of the world to get off to a bad start.''
And John Blatnik was a combat paratrooper in World War II,
served behind Nazi lines in what is today Slovenia, rescuing
American airmen shot down by the Nazis hiding in haystacks and
barns and grottos to stay out of the reach of the Nazi forces.
He was a tough guy. He was the right guy to select for that
responsibility, meticulous in his work.
And the result of the work of the Subcommittee was that,
among other things, no State had internal audit and review
procedures for their highway programs. They had never seen as
much money as was coming out of the Highway Trust Fund, and
they didn't know how to handle it and weren't prepared to
handle it. As a result of those investigations, every State
adopted internal budget review management procedures.
Furthermore, 36 people--contractors, State officials, and
Federal highway--then Bureau of Public Roads personnel--went to
Federal and State prison; and lessons were learned in the
contractor community. But it was tough oversight by this
Committee, meticulous, thorough review of the work that kept
the Federal highway program on a straight and even path.
But we are not here to review corruption or fraud or abuse
but rather the principle of oversight which is to--just as the
executive is directed by the Constitution to take care that the
laws are faithfully executed, so is the legislative branch
directed to ensure that the executive does its job properly,
that laws are implemented as intended by Congress, and also to
learn lessons from implementation that may result in further
legislative changes.
We enacted the Water Resources Development Act on November
8, 2007, overriding a Presidential veto. In the history of the
Congress, there have been 1,174 vetoes; and only 106 had been
overridden. Ours was the 107th.
I must give credit to Mr. Mica, who led the charge on the
House floor; Ms. Johnson, who is Chair of the Water Resources
Subcommittee. I was in the hospital having my neck operated on,
installing titanium rods to overcome the adverse effects of a
bicycling accident 20 years earlier that is now starting to cut
off use of hands and feet.
So, without my presence on the floor, the House overrode
that veto by a vote of 361 to 54. The Senate followed suit two
days later, 79-14. That is a really strong affirmation of the
principles of that bill.
I go into some detail because this wasn't just an
afterthought of action. That bill was the culmination of 7
years of pent-up demand for projects, for authorization of
funding of the needs of navigation, flood control, water
resource--water protection, levees, restoring the Everglades,
and a whole host of other issues.
The bill had such enormous support because Mr. Mica and I
worked together right at the outset of the session to scrub all
of the projects that had passed this Committee in the three
previous Congresses but had never been acted on, at least in
one session, never acted on by the Senate Environment and
Public Works Committee and never passed by the Senate. We never
got to conference on those issues. But they had passed the
House.
So let us start there with the projects that we know, and
let us have a new process by which every Member must sign a
document that he has no personal, family, or financial interest
in the project and put all of the projects on our Committee web
so we have complete transparency and openness.
Among those 900 projects were new authorities for the
Florida Everglades, the restoration of the coastal wetlands of
Louisiana and Mississippi following Hurricanes Katrina and
Rita, the modernization of the water transportation system,
upgrading the five principal locks on the Mississippi and two
on the Illinois River respectively from 600 to 1,200 feet.
It is intolerable that barge traffic takes 820 hours round
trip from Clinton, Iowa, to New Orleans, the world's most
important export facility because the locks on the Mississippi
and one each on the Ohio and Illinois were built in the 1930s.
The 600 foot lengths in tows--the barge tows are 1,200 feet,
and our competitors in Brazil have a 2,500-mile advantage and a
3-day sailing advantage over our grain production in the upper
Midwest. And the port in New Orleans can't be as efficient as
it is designed to be because it takes so long for product to
get there. So we included the modernization of those locks in
that legislation.
We also adopted reforms for the Corps of Engineers. The old
paradigm of dam it, ditch it, drain it, which the Corps had
been accused of, was going to change.
We had hearings over many years to review how it would do
mitigation, for example; and, in fact, we had an amendment in
1978 that my Minnesota colleague, Republican colleague from
Minnesota, Al Quie, from southeastern Minnesota, and I
cosponsored to require mitigation to be done concurrently with
the construction. Because it was so often the case that the
Corps got to the end of the process and, oh, we would love to
do that mitigation, but we ran out of money. And we completed
the process, so we don't have time to do this, and we just
throw the dredge spoils over the levee on the other side and
damn the consequences.
That has got to change, and we enacted--we had an amendment
in the WRDA bill that would require mitigation to be done in
advance or concurrently with the construction and the funding.
Well, it hasn't been done. We reinforced that language in WRDA
in 2007.
Larger, more controversial projects have been the subject
of numerous court cases and review by outside groups and
controversy and the focus of a three-part series by the
Washington Post, the New York Times, and many other newspapers
saying the Corps was not doing its job properly.
So we required, in that legislation, the Corps to submit
larger, more controversial projects to outside independent
review, to improve the quality of modeling and analysis,
resulting in sound conclusions based on data, based on sound
analysis. We directed the Corps to update how it plans and
implements the projects.
The principles of 1983, developed before the Corps had an
environmental mission or before the no net loss of wetlands
policy was adopted, those principles had to be updated and was
directed to be done in WRDA 2007 to reflect sustainable
development, rather than exploitive economic development such
as the Mississippi River Gulf Outlet, to avoid unwise
development of or, in fact, destruction of floodplains.
But rather than swiftly and quickly embracing the reforms
of WRDA 2007, the Corps has been slow to implement; and it has
not followed the direct language of the statute and
congressional intent.
Today, we release a report that highlights several of the
Corps' shortcomings on improved mitigation, independent review,
and the planning principles guidelines. These were major
subjects of our discussions over a period of years. They were
the point of agreement between the House and the Senate that
resulted in WRDA 2007 and in this enormous vote that we had on
both sides of the aisle.
[Information follows:]
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The Corps' guidance for implementing mitigation was not
issued until August 31 last year, 21 months after enactment.
The Corps' field offices during the interim were trying to
implement the statute without clear direction. Without the
direction on formulating adequate mitigation plans,
consultation with State and Federal resource agencies was not
happening.
Independent review, the Corps still has not supplied a
definitive list of projects subject to the mandatory
requirements. The reviews that have been undertaken were done
without public notice, without public input. Even completed
reviews are not routinely released publicly, way behind
schedule.
The President's budget, I was appalled to find the
revisions would be 4 years late. That is in part due to the
Council on Environmental Quality, part due to the Office of
Management and Budget.
The Corps has known and the Assistant Secretary prior to
Ms. Darcy have known that this was the intent of Congress, this
is a requirement of Congress, and it should have been leading
the charge.
The Corps has, in fact, implemented its programs beyond the
authority, beyond the intent of Congress. An example, St.
John's Bayou New Madrid Floodway. A court ruled that the Corps
violated the Administrative Procedures Act, that it violated
the Clean Water Act, the National Environmental Policy Act in
its justification of building the project and ordered the Corps
to halt the project and restore work already undertaken.
Yazoo Backwater Area Pumps, a project I have been familiar
with for many, many years, EPA ruled that the proposed project
would have an unacceptable adverse effect on the fishery areas
and the wildlife, adversely affecting 67,000 acres of wetland
and other areas of United States and denied the permit.
The Buford Dam-Lake Sidney Lanier, the court ruled again--
the court--the determination that the Corps had unlawfully
changed the operating purposes of Buford Dam to supply water to
Atlanta without authorization of Congress. The court gave the
Corps 3 years to change its operation or get new authority from
Congress.
There are other shortcomings from the emphasis of WRDA 2007
on transparency, accountability, and modernization. If the
Corps is going to win the trust of the public, particularly the
environmental community, and win rather than lose court cases,
then it has to comply with the provisions of 2007. And that is
where we are going to take this--that is why we have this
review today and why we are going to review revisions to the
planning principles, guidelines, application of the Davis-Bacon
Act, streamlining project formulation. That is very important
for people. Delivery process, sediment management, flexibility
in financing projects, all of those are going to be the
subject; and this is going to be the beginning of a dialogue
between the legislative and executive branch to ensure that we
together achieve our responsibility of serving the public,
especially the water-dependent public and economy.
Mr. Boozman?
Mr. Boozman. Thank you, Mr. Chairman.
Today, we are examining the progress the Army Corps of
Engineers is making in implementing the provisions of the Water
Resources Development Act of 2007. By the Corps' count, there
are 726 individual sections in WRDA 2007 to be implemented.
Most of these are projects that Congress has authorized the
Corps to carry out.
Some are policy provisions related to changes in how the
Corps conducts its planning process. These provisions were very
controversial as WRDA 2007 was being developed. We had a good
debate on these issues; and, in the end, not all Members were
content with the final outcome. Nevertheless, WRDA 2007 is now
the law of the land; and we all support it being implemented as
written.
I will say that I support the Corps' carrying out the
provisions of WRDA 2007, including the required schedules; and
if the administration finds that some provision law is
unworkable, it is their responsibility to come to the Committee
and ask for a legislative fix.
I am not going to get into the weeds on the implementation
guidance decisions that the Corps is making. I know the Corps
and the Assistant Secretary's Office have been working closely
with the Chairman's oversight staff to see that the letter of
the law is followed. I am sure the Chairman will press that
point, as he has just done.
I am more interested and concerned about the direction the
administration is heading as it carries out some of the policy
issues of WRDA 2007. I will mention just a couple.
Section 2003 includes a generic credit provision that
allows non-Federal partners to receive credit for in-kind work
done on projects. It is both interesting and frustrating that
an administration that takes great liberty with its
interpretation of statutory language under the principles and
guidelines provision chooses to interpret this credit provision
very rigidly, making the provision completely unworkable.
I am currently most concerned about the implementation of
section 2031 of WRDA 2007. It directed the Secretary of the
Army to revise the water resources planning principles and
guidelines as they relate to the Corps of Engineers. The
administration has ignored congressional direction and assigned
the task of revising principles and guidelines to the Council
on Environmental Quality, not to the Secretary of the Army.
In addition, the administration has invited agencies not
typically responsible for water project planning to actively
participate in interpreting the statute.
This Committee, the Congress, and the Corps of Engineers
itself has worked hard for decades to better understand the
environmental impacts of water resources development and to
minimize and to mitigate for them. There is a balance of
contributing to the national economic development consistent
with protecting the environment.
Section 2031 of WRDA 2007 established a national policy
that water resources projects should encourage economic
development and protect the environment by, number one, seeking
to maximize sustainable economic development; seeking to avoid
the unwise use of floodplains; and, thirdly, protecting and
restoring the functions of the natural systems. But in December
of 2009, the Council on Environmental Quality released its
draft provision--draft revision, rather, to the first part of
the P&G and clearly ignored the WRDA 2007 objectives. CEQ
stated that the projects must protect and restore natural
ecosystems while encouraging sustainable economic development.
Clearly, the administration is headed towards a new P&G
that has a bias in favor of environmental projects or a no-
action alternative and against economic projects. This approach
is contrary to the objectives stated in section 2031 of WRDA
2007. The project should maximize sustainable economic
development.
There are other aspects of the P&G revision that I find
troubling, and perhaps the Chairman may want to have a hearing
only on this provision and how it is being implemented.
Through WRDA 2007 and other statutes, we in Congress have
heaped a lot of extra planning process on the Corps, including
added layers of peer review. These things cost time and money,
but our hope is that the extra process results in better
projects. I hope that that is true. But I will add that no
other Federal agency has to go through so much scrutiny and
process to bring its public works projects to the Nation.
Mr. Boozman. [Continuing.] I think the most common
complaint Members of Congress hear about the Corps of Engineers
is not that their planning principles have been wrong but that
they are so mired in process that it takes too long to get a
decision out of them, and I think all of us here on the
Transportation and Infrastructure Committee and in Congress
could provide many, many real-life examples of that.
I am afraid, Mr. Chairman, that the way this administration
is interpreting the WRDA 2007 provision to revise the P&G
together with the additional well-intentioned burdens we have
put on the Corps, the future Corps of Engineers may simply be
capable of delivering the water resources projects that the
nation needs for economic development and environmental
sustainability.
With that, I yield back.
Mr. Oberstar. I thank you for those comments and especially
on the point of credit, in WRDA 2007 we wanted to make it
easier for local interests to do work largely in the planning
phase and the land acquisition and others, and have it count
toward the non-Federal share. Instead, the result has been less
help for communities and what we have seen in the past, prior
to WRDA 2007, is one after another, the community comes to the
Committee or to their individual Member of Congress for ad hoc
help on making up that local share.
We didn't want this to be done by earmarks and water
appropriations bills, but rather on a policy basis. So we are
going to further explore the point the gentleman has raised
plus the others.
Now the Chair of our Water Resources and Environment
Subcommittee, Ms. Johnson.
Ms. Johnson of Texas. Thank you very much, Mr. Chairman,
and thank you for holding this hearing. I commend and welcome
your ongoing efforts to return to the legislation originated in
this Committee to ensure that the law is being implemented as
written and intended. I am and will continue to be a strong
supporter of increased investments in our Nation's
infrastructure.
As I said on the House floor during the debate on the
conference Committee report for the 2007 Water Resources
Development Act, we do right by this country when we invest in
its infrastructure, including our critical water
infrastructure. It took us many years to reach agreement, pass
and overcome a veto to produce the 2007 act, and I remain proud
that the agreements were reached.
We are here today to review the Corps' implementation of
what came to be known in the years preceding 2007 as the Corps
reform. This included strengthening the effectiveness of the
Corps' mitigation program, establishing requirements for
independent review of the proposed projects that were large or
controversial and revisiting, revising the planning principles
and guidelines that the Corps uses to develop its project
recommendations. I was recently disappointed to learn that
based on research conducted by our Committee staff, many of the
reforms that this Committee and ultimately Congress approved
have not been implemented.
I hope this hearing will shed light on why many of the
mandates in the bill still await action 28 months later and
after the water resources bill's enactment.
The Corps was required to implement revised principles and
guidelines within 1 year of enactment. We still have not seen
them.
To encourage consistency in recordkeeping, we mandated that
the Corps assign a unique tracking number for each water
resource project and, again, our research shows that this has
not yet been implemented.
Congress also included language to help improve and
strengthen the Corps' mitigation program. I was deeply
disappointed to learn that the Corps ignored congressional
direction to implement mitigation in advance of project
construction. The Corps' guidelines document on this issue
makes no mention of undertaking the mitigation before
construction on a project.
There are other examples that I could cite, but I am eager
to hear what our witnesses have to say in response to these
lapses. I also want to hear from them on what this Committee
can do to help them achieve the problematic changes of the
Water Resources Development Act of 2007.
Again, our Nation's infrastructure is in critical need. I
stand ready to do all I can to get us back on the right track
and look forward to continuing to work with this Committee and
the Corps to the end.
I thank you, Mr. Chairman, and I yield back.
Mr. Oberstar. Again, thank you very much for those remarks
and for your splendid leadership on the water resources bill
during the years we were in the minority and during the 110th
Congress. You did a splendid job, and thank you for leading the
charge on the floor while I was having my neck replaced.
Mr. Cao.
Mr. Cao. Thank you very much, Mr. Chairman. Mr. Chairman, I
just want to reiterate your concern with respect to the Army
Corps' efficiency and credibility. I believe that this is an
extremely important hearing, especially for the people of
Louisiana who live along the Gulf Coast region.
I just want to point the Army Corps to a number of projects
that we have in the district that the Army Corps has virtually
missed all of the deadlines. Specifically one is the Violet
Diversion. Section 3083 required the Corps to design and
construct the Violet Diversion and the law requires the Corps
to complete design on the project by November of 2009. This has
been rolled--based on my understanding--into a larger MRTO
restoration under section 7013 but has not been designed.
The second project is the IHNC lock replacement. Section
5083 required the Corps to submit supplemental EIS for project
by July 1, 2008. The EIS was finally submitted but that
deadline was missed.
The comprehensive study, section 7002, required the Corps
to develop a comprehensive plan for coastal Louisiana by
November 2008. Based on my understanding, this comprehensive
study was never started. The U.S. Army Corps claims that funds
were not specifically appropriated for initiating. However, a
specific appropriation was not necessary.
The fourth project, or at least a number of projects,
concerns four LCA additional projects. Section 7006 required
four feasibility studies be submitted by December 31, 2009, and
these studies were never submitted.
Section 7006(e)(3) required six feasibility studies to be
submitted by December 31 of 2008. These studies were never
completed, even though, based on my understanding, the district
personnel are moving forward and the report was supposed to be,
is supposed to be due by December 31 of 2010.
MRGO restoration plan. Section 7013 required a restoration
plan for MRGO by 2008. Plans and/or reports were scheduled to
be completed by 2012.
So, again, Mr. Chairman, this points to your concern
directly questioning the efficiency and credibility of the Army
Corps. They have a number of major projects in my district and
the deadlines are either missed or some of the projects were--
or at least some of the requirements were never submitted.
I am also concerned about the Corps' excessive delays in
deepening and maintaining a portion of the Mississippi channel
adjacent to the Napoleon Avenue Container Terminal at the Port
of New Orleans. A small navigation project to deepen and
maintain the berthing area near that terminal was specifically
authorized by WRDA 2007. That was 2 years ago and the Corps has
not even begun a routine study to examine the significant
transportation and related economic benefits that the
navigation project will produce that are vital to the
competitiveness of the Port of New Orleans.
Mr. Chairman, the waterways are an integral part of
Louisiana's way of life as well as an indispensable component
of our economy. If we don't keep the Army Corps up to task with
a number of these projects, it will affect our ability to
recover as well as it will affect our ability to provide our
people with jobs.
I thank you for holding this hearing, and I hope that we
can both continue to work together to address the needs of the
people along the Gulf Coast, especially for the people of New
Orleans, of which I believe your wife is a native of the city.
So, thank you, and I yield back.
Mr. Oberstar. Yes. Thank you, Mr. Cao. Yes, indeed, we have
visited those sites that you referenced, several times, in
fact, over the course of the years. I am glad you raised those
issues.
Mr. Bishop.
Mr. Bishop. Mr. Chairman, I don't have a formal opening
statement. I just want to thank you for holding this hearing.
Given the nature of my district, the efficient and timely
performance of the Corps is absolutely vital to both the
environment of my district and to the economic stability of my
district, and so these are important issues that need to be
raised.
I thank you for having this hearing. I yield back.
Mr. Oberstar. Mr. Kagen.
Mr. Kagen. Thank you for holding these hearings and thank
you to the Army Corps for stepping up and improving your
function in a more efficient way. I would like to align myself
with the remarks from the gentleman from New Orleans. We all
understand here on this Committee that nearly a third of our
energy comes through that Port of New Orleans, and we want to
make sure that not only they recover but that our Nation
recovers as well in this economic downturn. I look forward to
your comments.
I yield back.
Mr. Oberstar. Thank you. Now, whether Members have
comments, we will begin with our first panel, the Honorable Jo-
Ellen Darcy, Assistant Secretary of the Army, accompanied by
the Commanding General of the U.S. Army Corps of Engineers,
Lieutenant General Van Antwerp. You have done a superb job at
the Corps, subject to these questions that we are going to be
raising here. Thank you for your great service, long-time
service of the Corps.
I would just like to make an observation. The Panama Canal,
the second system, is nearing completion. We open in 2014 on
the 100th year anniversary of the opening of the first Panama
Canal. But the reason that the second system is being built is
that the first one wasn't done according to the recommendation
of the Corps of Engineers. When President Teddy Roosevelt, as
Senator Hayakawa said, stole the Panama fair and square, he
directed the Corps of Engineers to undertake an engineering
scheme for building the Panama Canal where the French had
failed. The assignment was given to a major, an engineering
major, a civil engineer, a major in the Corps of Engineers, who
spent a year traveling the isthmus, documenting, writing his
report, 40 pages, which I have seen, and it is a fascinating
report.
It went up to the Chief of Engineers and all the way up to
President Roosevelt who looked at it and said, ``oh, what's
this going to cost?'' When told, he said, ``Can we make it
smaller? Congress will never approve that amount of money.''
That report recommended locks of 150-foot beam and 1,500-
foot length. Had that original plan been built, they wouldn't
be doing a second one now.
So, in many ways, there are other stories about the Corps
being the forerunner of the National Park Service, taking over
Yellowstone, reestablishing it, Yosemite, reestablishing it. I
often remind people that when they see our Park Service
rangers, that uniform is the uniform of the Corps of Engineers
in the 1880s.
You have done enormously good work, but there are some
things that we have to upgrade and uptick here.
Ms. Darcy, proceed.
TESTIMONY OF THE HON. JO-ELLEN DARCY, ASSISTANT SECRETARY OF
THE ARMY FOR CIVIL WORKS, DEPARTMENT OF THE ARMY; AND LT. GEN.
ROBERT L. VAN ANTWERP, COMMANDING GENERAL OF THE U.S. ARMY
CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
Ms. Darcy. Thank you, Mr. Chairman, and distinguished
Members of the Committee. I am honored to testify before you
today on the implementation the Water Resources Development Act
of 2007.
As you know, I have a deep personal interest and a keen
appreciation of the importance of the Water Resources
Development Act for the Army Civil Works Program. I will focus
my oral statement on the implementation of the national policy
provisions contained in Title II and would ask that my full
statement be included in the record.
Mr. Oberstar. Without objection, so ordered.
Ms. Darcy. I would especially like to focus on the four
specific provisions in Title II, Section 2031, which is the
Principles and Guidelines; Section 2034, Independent Peer
Review; Section 2035, Safety Assurance Review; and Section
2036, which is Mitigation for Fish and Wildlife and Wetlands
losses.
Section 2031 of the Water Resources Development Act
directed the Secretary of the Army to revise the Economic and
Environmental Principles and Guidelines for Water and Related
Land Resources Implementation Studies, which are referred to as
the P&G. The Council on Environmental Quality took the lead in
this effort to apply the revised P&G to all Federal agencies
involved in water resources project development, a process that
is expected to last at least another year.
On December 3 of 2009, the Council on Environmental Quality
submitted to the National Academy of Sciences for peer review
new proposed revisions to the Principles, as well as to Chapter
1 of the Guidelines of the 1983 P&G, which are called the
Proposed National Objectives, Principles and Standards for
Water and Land Related Resources Implementation Studies.
A Water Science Technology Board review will take about 11
months to complete. This draft was concurrently made available
for public review for 90 days and CEQ has extended that for an
additional 30 days. CEQ has also formed an interagency working
group in January of this year to develop interagency procedures
across the Federal agencies, and we are participating in this
group.
The Administration plans to issue the Principles and
Standards in final form in the spring of 2011 after
consideration and resolution of comments received from the
general public and from the National Academy.
The Corps implemented a comprehensive peer review process
in May of 2005 with the publication of an Engineering Circular
for peer review of decision documents, which established a
rigorous peer-review process adopting most of the
recommendations of the National Resource Council study under
section 216 of WRDA 2000 and implementing the 2004 Office of
Management and Budget Information Quality Bulletin for peer
review.
Provisions in the Water Resource Development Act of 2007
reinforce and further define for the Corps this review process.
We recently published an Engineering Circular which provides a
more comprehensive and a more robust review policy for civil
works planning, design, and construction. The guidance
contained in this Engineering Circular lays out a standard
seamless process for review of all civil works projects from
initial planning through design, construction, operation and
maintenance, repair, replacement, and rehabilitation.
Mitigation planning is an integral part of the Corps'
overall planning process. The Corps issued supplemental
guidance for mitigation plans as well as for monitoring
adaptive management in May of 2005.
With the passage of WRDA 2007 and Section 2036(a), we have
strengthened the requirements for developing and reporting
monitoring and adaptive management activities.
Monitoring of project mitigation features will continue
until the Corps demonstrates that identified ecological success
criteria have been met. Corps Division Commanders are
establishing an annual consultation process with States and
agencies, and we will include these consultation reports in the
annual status report on mitigation required by Section 2036(b).
In addition, the Corps is establishing a database to track
the mitigation performance.
I would be remiss if I did not mention the work we have
accomplished under Title IX of WRDA 2007, the National Levee
Safety Program. Title IX, specifically Section 9003,
established the National Committee on Levee Safety and directed
the Committee to develop recommendations for a national safety
program. The National Committee on Levee Safety completed a
draft report in January of 2009 and put forward 20
recommendations for creating a national levee safety program.
Although the Corps of Engineers chairs this Committee, the
Committee's recommendations do not, and were not intended to,
represent those of the administration.
The final draft report was provided to Congress by the Army
in May of 2009.
Section 9004 requires that the Secretary establish and
maintain a database with an inventory on the Nation's levees.
The Corps will complete data collection and inventory of the
approximately 2,000 levee systems, which comprise about 14,000
miles of levees, within current authorities and funds during
fiscal year 2010.
Activities planned in fiscal year 2011 include the
expansion of the National Levee Database to other Federal
agencies and to incorporate non-Federal levee data on a
nationwide basis. We are going to work with stakeholders to
facilitate their use of the database for local levee safety
programs, and we are going to develop a levee screening and
classification process to rank and prioritize levees based upon
risk.
With the allocation of $90 million from the American
Recovery and Reinvestment Act for periodic inspections, the
Corps will complete inspections for those levees which the
Corps operates and maintains and those levees for which the
Corps performed the initial design and construction and for
those levees which have been incorporated by law into the
Corps' program as a federally authorized levee system.
Mr. Chairman, implementation of this very important
legislation has been and remains a priority for the Corps and
the Army. This concludes my testimony, and I would be happy to
answer any questions that you have.
Mr. Oberstar. I understand by prior agreement you speak for
the Corps and General Van Antwerp does not have a separate
statement but is available to answer questions.
Ms. Darcy. Yes.
Mr. Oberstar. Alright. The first issue that strikes me,
through all of our review and the statement that I made at the
opening, is the agency interaction with the National Academy of
Sciences, Office of Management and Budget, Council on
Environmental Quality, and other entities that are engaged in
this. First of all, with the National Academy of Sciences, we
thought this was going to be very straightforward, quick
acting, but it seems not to have been. How is this process
working? Take us through step by step what happens when you
work with the Academy.
Ms. Darcy. Congressman, when the initial draft of the
revision of the Principles and Standards was done by the Corps
of Engineers, it was put out for public comment. Then the
Council on Environmental Quality decided that the Principles
and Guidelines, because they originally applied to other
agencies, that they should be developed with other agencies as
well.
So after that, the interagency working group, including the
Corps of Engineers and the other agencies, worked on a draft of
the Principles and Standards part of the Guidelines. We wanted
to have this independently peer reviewed so we submitted it to
the National Academy of Sciences on December 3. They estimated
their review of this would take about 11 months.
We are going to have our first meeting with the Academy in
March, and our public comment period on the Principles and
Guidelines has been extended to mid-April 7. Within this
timeframe, the Academy and the Corps will be hearing from the
public, on their comments and feedback on how these Principles
and Standards would actually work. The next step is the
interagency development of the actual guidelines, which will
begin while the Academy is reviewing the Principles and
Standards.
Mr. Oberstar. What comes back to our Committee staff and
back to me are indications that the Academy operates in a very
slow, deliberative, almost academic fashion on a time frame
that is more linked to eternity than to the day-to-day urgency
needs of the Corps.
I suppose if you respond to that you will alienate somebody
over at the NAS, but I need to get a sense. General Antwerp,
you are out in the field, you have got a mission to do for the
Army. You have got to build a causeway, a bridge or a
passageway. You haven't got time to diddle around with it for
months and months.
What was your experience working with the Academy?
General Van Antwerp. Well, first of all, I would like to
say, Mr. Chairman, that part of our external review process is
to get somebody that is totally independent, which the National
Academy of Sciences is. Then they have a means of touching
other groups. Our other element that we used for these are
501(c)3 nonprofit elements, because we want this to be totally
external.
My experience with the National Academy of Sciences is that
they start as we do and lay down the milestone schedule for
whatever project or review they are going to do. This is a very
complicated review because of all of the elements, plus it
applies really to four agencies besides the Corps, the Bureau
of Reclamation, the Natural Resources Conservation Service and
the Tennessee Valley Authority.
Mr. Oberstar. So you are saying that the substance and the
procedure itself, review, is complex in and of itself.
General Van Antwerp. Right.
Mr. Oberstar. Rather than the National Academy making it
complex?
General Van Antwerp. I think that is exactly right. One of
the guidelines behind external review is that it should be
scalable, and it is scalable based on the complexity of the
issue and also the importance of it. Both of those, you have to
get those right. It is very complex plus the importance of it
is hugely significant here, because it hasn't been updated
since 1983.
Mr. Oberstar. The National Academy of Sciences, both we and
our counterparts in the Senate thought this is a very good
idea, bringing in an external, objective group, with an
academic approach to issues, it doesn't have a stake in the
outcome, that is, a financial stake in the outcome, but seeking
good public policy.
But then it appears that this has become a very cumbersome
process. Maybe it is just because we appear in the House any
way, operate on 2-year terms, and we would like to see, we
would like to see results sooner rather than later, sometime in
the next lifetime. We want them sort of in our lifetime, maybe
even in our tenure in the House.
Then you have OMB and CEQ. They also get their fingers in
the pie here. Each has a different role, and I have a sense
that the office spends more time on the M of the issues than on
the B of the issues, more on management.
Just parenthetically, it is not for you to answer or
respond to, but Congress never should have created an office of
management over and above the existing agencies. That was done
in 1974, and I know the historical precedence for it, 1973
actually, but it has caused us in the House and the Senate
endless headaches and you and the agencies. They overstep their
bounds. They really should be looking only at the budget
implications and give you their view and their impressions.
Then CEQ has a different role. That is a more substantive
role. That is one that looks at the environmental consequences
of what you are proposing to do.
So tell me about your interaction with these two agencies
and how long a turnaround time do you get with them?
Ms. Darcy. We have been working with CEQ on a number of
issues in addition to the development of the Principles and
Guidelines and other ecosystem restoration efforts that are
being led by the Council on Environmental Quality. We, as an
agency, are in constant communication with the Council, as well
as OMB, not only in creating our budgets, but also in looking
the way forward on some of the priorities within the budget,
including ecosystem restoration.
What my experience has been so far--and I have been in this
job 7 months - we have been collaborating with CEQ more than
this agency ever has in the past. Not only because of the
priorities of this Administration, but because I think the
recognition of what the role the Corps of Engineers plays in
every water resources development decision that is made in this
country.
Mr. Oberstar. Well, that is a very good, very cautious,
careful answer, and you have not offended anybody over there at
OMB, and I understand that.
When we set forth in this legislation, mandatory
independent reviews for larger projects that may have some
elements of controversy surrounding them, we wanted those
reviews done, but we were also concerned about timing. We
didn't want that outside review to delay or make an already
deliberative process cumbersome. But it seems that the reviews
undertaken so far are coming at the end of the process, raising
issues that should have been addressed earlier, and thereby
creating a delay that we didn't want to happen, Boston Harbor
deepening, an example of it.
What have you learned in these 2 years now, and what steps
are you taking? You have got a fresh set of eyes since WRDA
2007 was enacted, and what have you learned from this process?
What steps are you taking to move it along more expeditiously?
Ms. Darcy. Congressman, I think what we have learned is to
start the review process earlier.
Mr. Oberstar. Yes, that is what we wanted you to do.
Ms. Darcy. And also have the process be throughout the life
cycle of the project, not just at the beginning or not once an
alternative is selected. Unfortunately, as you know this was
not done in the case of Boston Harbor; the review process came
late in the process.
I think an example we can point to as a success of the
independent external peer review is the Mississippi Coastal
project; we have just sent that chief's report to the Congress.
We had an external independent peer review on this project
that lasted about 3-1/2 months. It did not delay the project,
it did not delay the study, and it came in at about $212,000
for the external independent peer review, and I think we have a
better project because of it.
I think the local sponsor would agree, too, sir.
Mr. Oberstar. Alright. We will leave it there for the
moment.
Mr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman. It is good to have
you, Secretary Darcy, and I think we get to have you again
tomorrow, so we are looking forward to that, and I say that
with, you know, in the right spirit, very much. We appreciate
your all's hard work.
One of the national objectives proposed by CEQ, not
Congress, is avoiding adverse impacts to natural ecosystems
whenever possible. Since a no-action alternative is always
possible, this could preclude the Corps of Engineers or any
other Federal water resources agency from ever constructing a
project with economic benefits.
How does the Corps intend to carry out this proposal?
Ms. Darcy. I think that what we are going to consider with
the new P&G is a range of alternatives. I know that we will be
looking at the other provisions in a more careful way, also in
a more deliberative way. I don't think that the Principles and
Guidelines as drafted and out for public comment would preclude
us from going forward with what the best project alternative
would be.
Mr. Boozman. The 1983 principles and guidelines had a
special emphasis that all effective alternatives for solving a
set of water resources problems ought to get unbiased
consideration evaluation in making a decision on what is
recommended to Congress for authorization.
Again, can you explain the administration's position on
this fundamental idea of considering all the alternatives
without bias and making a recommendation?
I guess kind of the impasse we have is we appreciate the
Council on Environmental Quality--and maybe we should get them
to come over and testify since they are having so much
influence, but I guess, you know, they are a body that is there
to give, you know, give guidance, give advice. But the
ultimate, the ultimate advice giver and the ultimate whatever
is Congress, and what we are seeing is a difference in advice
versus the intent of the law.
And so, again, can you comment on----
Ms. Darcy. On the role of CEQ, is that your question, sir?
Mr. Boozman. Well, that, and then what I was alluding to on
the alternatives, effective alternatives, you know, for
involving water resources problems, getting unbiased
consideration, evaluation, make the decision on what is
recommended to Congress for authorization. So, yes, tell us
what you see the role is and----
Ms. Darcy. I think that the Principles and Guidelines that
have been drafted and are out for public comment will be able
to provide for those alternatives to be considered.
What P&G revisions are intended to do is to be able to look
at not only the net economic benefits but also the
environmental benefits and to be able to look at both of those
in all alternatives; in making the final decision for the
project alternative selection both of those would be weighed.
I don't think any alternative is going to be off the table.
I think that looking at them both through the eyes of the total
national economic benefit as well as the environmental benefit
is the way that we are hoping that they will be looked at in
the future.
Mr. Boozman. I understand. I guess our concern is that it
doesn't have that effect, that, you know, the language is
different with the intent of what Congress was trying to do,
you know, with WRDA.
So with that, I yield back my time.
Mr. Oberstar. We will have additional rounds. Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chairman, and thank you very
much for your testimony. I want to talk a little bit about the
issue of cost share. I am very concerned about cost share,
particularly in this economic environment. We have State and
local governments with really no capacity or very limited
capacity to contribute their share of Army Corps projects.
My understanding of the intent of language in WRDA 2007 was
that local government should be able to use other Federal
dollars for their cost share and my further understanding is
that that is not happening, that is not being allowed.
So my question is what tools or authority does the Corps
possess to assist communities with the local cost share?
For example, is there not language, existing language,
dating back pre-WRDA 2007 that gives the Secretary the right to
waive local cost share?
Ms. Darcy. Yes, there is.
Mr. Bishop. So, I guess, more specifically, then my
question is what are the set of circumstances that would need
to be present for such a judgment to be made, and my further
question is aren't they already present?
Ms. Darcy. Congressman, I would have to say that I don't
know the specifics of what the particular criteria would be in
order to get that waiver, under which authority. But I would be
happy to get back to you.
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Mr. Bishop. I would appreciate that, because it is a
particularly difficult issue right now. I know in my own State
there are a lot of Army Corps projects that are ready to go
that are not going for lack of a local cost share. And not only
are the projects important to do, but these are projects that
would put people to work.
So I would be very grateful if you would give this your
serious attention and let us know what we can do to move this
forward.
Ms. Darcy. I will.
Mr. Bishop. The next question I wanted to go to was the
issue of independent peer review and linking that, if I may, to
the centers of expertise that the Corps maintains. My
understanding is the Corps maintains some number of centers of
expertise and that one of their roles was to provide some type
of independent peer review of major Army Corps projects.
So I have a couple of questions that flow from that. One,
do you feel that this process is working, are the centers of
expertise providing this kind of peer review? That is my first
question.
General Van Antwerp. Congressman, first of all, we do have
six centers of expertise and four of six are functioning very
well and have done a lot of what they were designed to do. A
couple of them--and one is the navigation center, are still
trying to get up and running but these six centers are to do
exactly as you say.
One of their functions is to help in the review process. We
have two types of review. We have internal review, and they can
organize that process and put together the group of experts.
They can also help to organize the external review, when that
would go to the nonprofit organization or whatever organization
chosen to complete the review. That is part of their charter.
The other part is to really help our districts, where they
have insufficient expertise to bring the best technology and
innovation to projects, to bring that expertise to these
projects.
Mr. Bishop. How are these centers currently funded?
General Van Antwerp. They are really joint funded. They are
funded partially by what we call general funds and then
partially by the project funds of those projects to which they
are lending their expertise.
Mr. Bishop. Would the Corps benefit and certainly would the
American people benefit if we had more of them, and would a
model for them be to site them on college or university
campuses that have expertise in coastal zone processes or
whatever their particular expertise might be that would be
related to or be relevant to Corps projects?
General Van Antwerp. I think several questions are there.
One, I think we have the number about right. Where they are
located generally is where there have been projects like that
or in a district that already has that expertise. We do use
universities, and we do have money that we provide universities
to help us, both in review and in study, which I think is an
excellent idea. It gets the innovation, and it also puts us
with academia in a little different light, and I think that is
good.
So by and large, I think we are located well, we have about
the right number. But we need to go to great in this area.
Mr. Bishop. Thank you both. I yield back, Mr. Chairman.
Mr. Oberstar. Mr. Cao.
Mr. Cao. Thank you, Mr. Chairman. Mr. Chairman, before I
begin my questioning, I ask for unanimous consent to enter into
the record a statement by my colleague from Louisiana,
Congressman Steve Scalise.
Mr. Oberstar. Without objection, the statement will be
included in the record at the appropriate point.
Mr. Cao. Thank you very much, Mr. Chairman.
Secretary Darcy, General Van Antwerp, first of all, I want
to thank you for everything that you have done. I am pretty
sure that overseeing the Army Corps of Engineers is a quite
demanding job, and I am very certain that you hear a lot of
complaints on a day-to-day basis, and I am here to complain
again and to make sure that my complaints are being heard.
As you can tell from Hurricane Katrina, all of these
projects that I just mentioned, not only do they mean economic
development, but these projects basically entail the survival
of the people of the region. Katrina devastated 80 percent of
New Orleans, misplaced over a million people nationwide to
various areas of the country. And 4-1/2 years after Katrina, we
are only, hopefully, 60 percent, 65 percent back.
This past weekend, I met with Director Spike Lee, who is
doing a follow-up documentary to his first piece, When the
Levees Broke, and he asked me a very direct question. He said
you are the representative of this district. What are you doing
to restore the coast and to protect the people of New Orleans?
And one of my answers was, because I belong to the T&I
Committee, I have oversight of the Army Corps of Engineers, and
my task is to make sure that they keep up with their duties, to
make sure that they complete their project on time.
My question to you here is, what are you doing to ensure
that the projects in my district are being completed on time
and to ensure that the projects that are under the direction of
Army Corps are being completed on time?
General Van Antwerp. First of all, thank you for the
question. I count it as constructive criticism, and I
appreciate it.
We have our eye on a target in New Orleans, and it is June
2011. It is the beginning of hurricane season 2011. The
Congress has been gracious and the Administration has been
gracious. This is about $15 billion worth of work. I would love
to bring it to you in the detail that we have; when the study
must be completed, when the detailed design has to be done in
order to start the project at the right time to finish and meet
those deadlines.
So we are very much conscious of the necessity of getting
these projects done to meet that deadline of 2011.
Mr. Cao. I am pretty sure you are familiar with the issue
we have in connection with Option 1 and Option 2 and Option
2(a) in connection with, I guess, the project.
An issue that has been raised, and the issue questions the,
I guess, the forthrightness, the honesty of the Army Corps with
respect to the feasibility study of Option 1 versus Option 2
and 2(a), seems to think that the cost study that the Army
Corps put out in regards to Option 2 and 2(a) are way
overblown.
What is your answer to that?
General Van Antwerp. First of all, Option 1 and 2 and 2(a)
are-- a lot different in that 2 and 2a really are a pump to the
river option that eliminates a lot of the local pumps. It is a
much more elegant solution, but a pricey solution, and here is
why.
In order to really capture the cost, and the ability, if
this is constructable or not, we are not sure because of the
depth of the canals. You have all kinds of utilities and bank
stabilization when you start to really increase the depth of
those canals. So we have decided first of all thus far short of
having any of that information, that we would accommodate
options 2 and 2(a) by having a feature for the current pumps
under Option 1 that would be adaptable to 2 and 2(a). So we
don't burn that bridge, but that we do make it if ever 2 and
2(a) were studied and were feasible and funded that that would
not all be thrown away.
But there is a part here that has been talked about and
that is suspending any action now unless it is consistent with
2 and 2(a). First of all, it is very hard to know what is and
what isn't feasible until you have done a study. That is the
first start. You do a detailed feasibility study, give you the
risks, give you enough of the engineering to say it could be
done.
The other part is we have pumps right now that are
temporary pumps that are on those canals, and by 2013 they are
going to hit their design life. They were never intended to go
the long distance. I am very concerned right now, heart to
heart, about not doing something now, that we are going to
count on the temporary pumps if you have a major event that
won't be able to deliver without an incredible amount of
maintenance.
We are checking the maintenance curves right now on every
single pump, and they are increasing as we speak as they age
towards 2013. So we have got to do something.
The others are a more longer term solution, to study it
well. We think it would be about $15 million and 36 months to
do an adequate feasibility study that would be actionable by
the Congress and Administration to say if we wanted to do 2 and
2(a).
Mr. Oberstar. Would the gentleman yield?
Mr. Cao. Yes, Mr. Chairman.
Mr. Oberstar. If I may interrupt the General, 15 million to
do the evaluation, analysis of the adequacy of the pumps and
the replacement cost?
General Van Antwerp. No, sir. This would be for a
feasibility study to look at Options 2 and 2(a), which is
really the pump to the river option, vice Option 1, which is
currently funded and authorized to replace those temporary
pumps with a permanent solution. The one nuance there--and
maybe I wasn't clear--but if we would do Option 1, we would
include some adaptability features that in case you came back
later and wanted to do 2 and 2(a), part of those features are
existent.
Mr. Oberstar. Just a horseback estimate, if the gentleman
would allow me to continue.
Mr. Cao. Please.
Mr. Oberstar. A horseback estimate, not hold you to the
numbers, but what do you think the replacement cost would be
for those pumps? And I ask the question, you know, just need a
ballpark figure, but I think the gentleman would want to know,
I would want to know, other Members would want to know, so that
we can start laying the foundation for it. Those pumps have to
be replaced or the city is simply going to be inundated, and we
should be planning now for some rather substantial investment.
General Van Antwerp. We actually are planning for that
investment right now. That is under Option 1, and we are funded
for that. So we have a plan to do that. The one thing we don't
have yet for that part of the project is a project agreement
with a local sponsor for that because we have had a debate over
options 1, 2 and 2(a). The Corps' position is that we need to
get that project agreement done and get to work and put those
permanent pumps in.
If Congress tells us to do a feasibility study for 2 and
2(a), and it is funded, we would do that to the best of our
ability and give the comparison. But those pumps are going to
need to be replaced in 2013.
Mr. Oberstar. In the range of hundreds of millions of
dollars I am sure.
General Van Antwerp. It is in the hundreds of millions but
the funding is there. We are not coming back for a request for
funds.
Mr. Oberstar. Thank you, Mr. Cao.
Mr. Cao. Thank you, Mr. Chairman. I would look again to
question you tomorrow and I yield back my time. Thank you very
much.
Mr. Oberstar. Now, independent peer review reports, the
ones that have been completed so far, it seems we have had
difficulty getting access to them, initially Committee staff
was denied access. The public has the right to see these
reports, our staff has a right to see them. They are not
available on the Internet, we can't get them in person. We have
to come and knock on the door, bag in hand. What do we have to
do to get this?
General Van Antwerp. You have every right to have total
access to those. There is a way to Google them, but when we
went and made a lot of improvements to our website, we
essentially took the easy Internet access down. The best way is
to have that website that gets you there directly. But you can
go through the policy review site and do it. I have the team
working on this for you.
You are on to something that has been a challenge. We are
trying to improve our website system and give more access and
visibility. And what actually happened was it shut the Internet
access down unless you were really, really savvy at how to get
there, and I am not.
Mr. Oberstar. Well, I have newly become an Internet user
after years of resisting. I am a paper and typewriter person.
So I learned how to use this and I said well, let me try to
get this. We can't get access to this. So I tried, and I can't
get in there. I use Google and all these things, so you tell us
how, and make it open and transparent, whether we have a
headquarters web page or something, somehow we haveto----
General Van Antwerp. We are going to link it, put a big
spot on the headquarters web page, just come on to the Corps of
Engineers homepage and it will tell you how to get there.
Mr. Oberstar. Good.
Now, early drafts of revisions to the planning principles
and guidelines that we saw, that staff shared with me, required
the process to consider alternatives likely to have a high
benefit-to-cost ratio. I said, where is this coming from?
It turns out that there was a document from OMB and to the
Assistant Secretary of the Army and to the Corps that directed
the Corps to evaluate only those projects that would have a 1.5
to 1 benefit-cost ratio.
My question was how--I asked Ken Kopocis, our Counsel, and
Ryan Seiger, Counsel to the Water Resources Subcommittee, how
do you determine that a project has a particular benefit-to-
cost ratio if you don't do the study first. It is like Abraham
Lincoln objecting to the proposal of the President for a toll
on waterways. And he said, ``How can you impose a toll on a
waterway unless you build the project first so that you have
product in the waterway for a while so that it can generate the
money for the toll?''
This is the same thing, this is 160 years later. There was
another document that I saw, that OMB proposed. This is OMB,
that direct the Corps to support only, recommend only those
projects that have a benefit-cost ratio of 2.5 to 1. That is a
huge standard. It is a high requirement. Alright, tell us.
Ms. Darcy. That is a very aggressive benefit-to-cost ratio,
2.5 to 1.
Mr. Oberstar. That is very kind, you are being very
judicious.
Ms. Darcy. That is something that we have been looking at
trying to find those projects for setting priorities in a
budget.
Mr. Oberstar. Do you have an example of one that meets
that? Can you give me an example, 2.5 to 1?
Ms. Darcy. All of the projects in the President's budget,
sir.
Mr. Oberstar. They do. We probably don't need to build
them. If they are that good, someone else can build them.
No, seriously, this is unreasonable to set a goal before
you undertake the review of the project, which review is going
to lead you to that goal of determining benefit-cost ratios.
Give it a try, General?
General Van Antwerp. I believe what Ms. Darcy is saying is
that the projects that were 2.5 to 1 or greater are what is in
the President's budget, but that number floats dependent on the
list in priority. As you take the benefit-cost ratio and rack
and stack the projects and then you look at what the
affordability is, that is how it is prioritized. One year, it
could be 3 to 1, or it could go to 2 to 1. In the 2011 budget,
for those construction projects, we know how much they cost, we
know the benefit-cost ratio. When we drew the line, it came to
that.
Now, there is a couple of other categories. There are life
safety projects where the the benefit-cost ratio does not
govern. It is the life, health and safety, and an example of
that would be one of our dams that needs critical rehabbing.
But the projects that were not life, health and safety or
ecosystem restoration, they competed based on their benefit-
cost ratio. Those ratios were known from a feasibility study
and a chief's report.
Mr. Oberstar. I think my recollection of the Tennessee
Tombigbee was just barely 1 to 1, maybe below that. We had to
push and shove to get it over point 1. Lock and Dam 26 was
about 1.2 at the beginning. It turned out to be one of the best
projects we have ever done on the Mississippi River. We need
five more of them. And I wonder, I just wonder what B-C ratio
you would assign to any one of those other five before you
could even begin to work on it.
General Van Antwerp. We do a preliminary study. And then if
we think we have a 1 to 1 benefit-cost ratio or better, then we
could go to feasibility.
Mr. Oberstar. You make a horseback estimate----
General Van Antwerp. Right. You make that estimate, and
then you go to feasibility, where you refine it. Then it comes
out 2 to 1, 4 to 1, 2.5 to 1, whatever. And then that is where
you now have a tool, that says, I can prioritize these. But a
project that has a 1 to 1 cost-benefit ratio says it could be
worth doing. Now you get into the next question, can we afford
to do all of those that were 1 to 1, and the answer to that is
no.
Mr. Oberstar. That is a different question. That is a
question Congress needs to address, whether we can--or as in
the case of the Panama Canal, President Roosevelt said, ``I
don't think Congress will ever approve that kind of money.''
But he is not the first one. President Franklin Roosevelt, when
presented with the cost of building the atomic bomb, said,
``can't we build a little one? That is a lot of money, we have
a war going on.'' So they made Little Boy. Yeah. It was big
enough.
Alright. In the planning process, where in order of
significance does the B-C ratio come?
General Van Antwerp. I think it comes in in several places.
The first one is where you do the initial cursory study, 100
percent Federal, to determine if we think we have a potential
project. It is answering that question. And the benefit-cost
ratio, unless there is health or safety or other things, says
this makes sense to go to the next level.
The next level, the feasibility, has some cost-sharing
aspects. So now you are also engaging the stakeholders,
partners, local folks and saying, is this worth it for you to
do? We think that there is a benefit-cost ratio that applies
here.
And then you come through that process, eventually ending
up with a chief's report, and it will have the benefit-cost
ratio nailed down with all of the documentation of what are the
benefits and what are the costs.
One of the things, of course, the new Principles and
Guidelines will do, will now incorporate nonmonetary things;
they will incorporate the environment and some of those things
that are a little harder to estimate benefits. But they are
going to have to be figured into whether this makes a valid
project or not.
Mr. Oberstar. That is very illuminating, and that is
important. But let me ask you a question also about the
Mississippi River Lock and Dam 26, 1,200 feet, very efficient
operation. But its efficiency and its contribution to river
navigation is offset, mitigated, downrated by the other locks
that aren't of that efficiency.
If you are looking at a system, then don't you have to look
at all of the elements of the system and say together they
achieve this greater goal and will have this greater benefit-
to-cost ratio? Grain moves in international markets on as
little as an eighth of a cent a bushel. If it takes 6 weeks
round trip for barge tows to make that trip to New Orleans and
back to the Upper Mississippi, we are not being efficient. We
are not being competitive in the international marketplace. The
port of Santos in Brazil has a 2-week sailing advantage over
New Orleans because they are further out in the South Atlantic.
General Van Antwerp. I think you are absolutely onto what
we would call watershed planning, and you can't do a project in
isolation. You have to look at effects of whether one lock
could take X amount of traffic, but all the other ones on
either side that actually govern, then that figures into the
benefit-cost ratio of building that.
Another example is the Great Lakes. They are so
intertwined, all the ports and harbors in the Great Lakes
really make up a system, and you have to work them all
together, because if you can't get into one port, then you
can't take materials to another. Those are the tough decisions.
But I think the Principles and Guidelines also includes this
larger look that you are speaking of.
Mr. Oberstar. You just made the argument maybe somewhat
better than I have done for the second lock at Sault Ste.
Marie. When you think of the winter--Mr. Boozman doesn't have
to deal with that issue. They don't have as much ice. And Mr.
Cao doesn't have any ice at all except in the cocktail lounges
in New Orleans. They don't want it. By the time it gets down to
New Orleans, it is all melted. But if you think of a 105-foot
beam lock and a 1,000-foot ore carrier, or an 1,100-foot, and a
1,200-foot chamber, and in January, the lock chamber has 4 or 5
inches of ice on either side, and the vessel has 3 or 4 or 5
inches of ice on either side, and they come through--have you
been up there when that has happened, grinding and squeaking
and creeking, and you have just got inches? You need a second
lock.
We are going to be producing steel in the iron range, in
the iron ore mining country in my district. The SR Steel
Company, financed by Indian interests from India, not Native
American interests, is going to be producing steel slabs. In 2
years or so, the slabs will be rolling off the production line.
We have another plant right at Silver Bay, and inland from
Silver Bay Mesabi, Nugget is producing 98 percent iron product;
not taconite, which is 64, 65 percent iron, but a pure iron
like a feed for a blast furnace, for steel--for a blast
furnace, for steel, electric arc furnaces, for minimills, for
foundries. That is also going to be--they are going to need
dependability and continuity of intralake shipment. There is an
increasing demand for Powder River Basin coal. Those coal
trains come in 2-mile lengths down to the Port of Duluth-
Superior. They have got to be able to move in the wintertime.
So I think we have made--I have made my point.
Mr. Cao. Mr. Chairman, can you yield?
Mr. Oberstar. Mr. Cao.
Mr. Cao. Thank you very much, Mr. Chairman.
Mr. Chairman, I have in the room to your right is a group
of students from New Orleans. They are from Cabrini High
School. And all of the students returned to New Orleans after
Katrina, so they fully understand the importance of the issue
that we are discussing, the levees, the locks, what do we do,
whatever we have to do in order to prevent the city from
flooding again. So I just want to introduce to you the students
from Cabrini High School.
Mr. Oberstar. Let me, on behalf of the Committee, welcome
the students from Cabrini High School.
Mr. Cao. Yes, sir.
Mr. Oberstar. Welcome. I am familiar with Cabrini. My wife
is from New Orleans, grew up there. She still has family living
there, and we make frequent trips to New Orleans. It is good to
have student groups see how the work of Congress is conducted.
And your Representative, Mr. Cao, is doing a splendid job of
advocating for the city.
Mr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman.
I guess I would like to follow up since the Chairman
brought it up, the cost-share ratios and things, and hopefully
we will be able to talk about this more tomorrow as we talk
about the budget.
Where would a situation fall where if you had a project
that you spent $80 million on, it lacked $30 million of
completion? The cost-benefit is $1.50. So if you go ahead and
complete it, then you are going to have revenue coming in. It
costs $20 million to pull the plug, so you have spent about
$100 million versus 110-. How would you do that? I mean, in a
sense why would you not complete a project like that? Why would
you change the rules of the game in the midstream? And that is
essentially what we have being proposed today.
I guess when we see things like that, it really--as the
Chairman mentioned, there has to be some common sense with
these things, and it really does--it makes us lose confidence.
It makes us really look harder at the rest of it to wonder if
those kind of projects can go on, kind of what the rationale is
behind it. So where would that fall? General?
General Van Antwerp. May I defer?
Ms. Darcy. Is your question regarding----
Mr. Boozman. I just want to--either one. I really would
like an answer to the question. How would you not continue that
project? What is the rationale behind that one? Because if you
figure the cost-ratio now after you get all of this stuff
invested in it, and it is way up there, it is over the 250 mark
at this point to go forward as compared to discontinue it, does
that make sense? Because you have so much invested in it.
Ms. Darcy. In making priorities for the budget, we need to
not only look at the benefit-to-cost ratio, but also the
project purpose. And what it is we are actually going to fund
in terms of project purposes, and whether those are in the
priorities for the year's budget going forward.
Mr. Boozman. So a hydroelectric green energy is not--does
that come from the Council of Environmental Quality? Does that
come from you?
Ms. Darcy. It comes from the Administration, sir.
Mr. Boozman. I guess, again, that makes no sense to not
fund and then ultimately have the thing paid for. Is there a
rational answer, General? I mean, do you agree with that?
General Van Antwerp. What you have to do is take the cost
to complete. Obviously the cost invested, the benefit-cost
ratio, but as it came out in the President's budget, where it
fell in the priorities was to not continue.
Mr. Boozman. So cost to complete is $20 million. You have
spent $80 million on it. I am sorry. The cost to complete is
$30 million. You have spent 80 million. And 20 million to stop
the project. I mean, you guys are sitting there arguing that,
but that can't be argued in a rational way. I understand you
have got to do it, but, again, that makes no sense at all.
And like I say, we can talk about it tomorrow, but those
are the kind of things, Chairman, that we are running into that
we really need to get some answer to, and it is a problem.
So I yield back.
Mr. Oberstar. The gentleman makes a very important point.
To the layman's mind, it is very hard to justify a termination
cost that is almost as much as it takes----
Mr. Boozman. When you have got a hydroelectric, unless we
are down on hydroelectricity now, and we don't know about it--
the President in his State of the Union Address was very much,
let us do nuclear, let us do these things. This is a clean--it
is a situation where the turbines are down, way down in the
water, so it runs all the time. It is a great project for so
many things. It is clean. It is a very efficient use of
whatever. But not only do we waste the money, if we go forward
with the cost-benefit, we will actually get the thing paid for
by the utilities over a period of time. So----
Mr. Oberstar. That raises the issue of independent review
and the mitigation, or the issues of independent review and
mitigation.
We have a few more minutes remaining before closing of this
vote. We are going to--the next panel is going to tell us,
judging by the testimony I have read, that independent peer
review is not fully transparent to the public. They will say
that interested parties don't even know that it is in the
works. Do you agree? If so, what suggestions do you have for
making the peer-review process more publicly available?
Ms. Darcy. Mr. Chairman, I think that it is our goal to
have the independent peer-review process much more transparent.
In experience so far, we thought we have done that, but, as the
General mentioned, we have had access problems on the Internet.
But I think we would be open to try to work more openly with
the independent peer-review process because I think that was
the intent of having the process in the first place.
Mr. Oberstar. It is a very, very important point in the
discussions between our Committee and the Senate Committee, not
just in the summer 2007 conference that we had, which, by the
way, was about 45 minutes on a 7-year bill, but it was the
subject of frequent discussions over that period of 7 years and
one of the issues that continually held up further action on
WRDA, Water Resources Development Act. So we need to take
action to let interested parties know the peer-review process
is under way, or it is coming, and inform the panels that they
have the responsibility to seek public input.
General?
General Van Antwerp. I think the independent peer reviews
do seek public input, but there is another piece at the end
after they make their recommendations--that is, what we do with
those recommendations will become public as well. So we will
say, yes, we took that, it was important. We put that in, we
are considering this, we have done the cost-benefit of doing
this, but I think that is the whole life cycle of this.
The one in particular about even the Principles and
Guidelines, when they went to the National Academy of Sciences,
the Principles and Standards, also went out for public review.
What happens after the review of the National Academy of
Sciences and after the public review, all should be made
public. That is our opinion.
Mr. Oberstar. And regardless of what the judgment is from
the public about the substance of the review, making it public
is the critical point. And we get more flack for process than
you do for the substance of it.
We are going to recess for these three votes. When we come
back, I want to conclude with mitigation and cumulative effects
measures. I want to have a discussion about floodplain
management and revision of principles and guidelines. Those are
the three issues remaining.
[Recess.]
Mr. Oberstar. The Committee will resume this hearing and
conclude on the three items that I referenced before we left to
vote on the House floor.
So we strengthen mitigation requirements in WRDA 2007. And
I have already earlier described the effort that Mr. Quie,
then-Congressman Al Quie, later our Governor of Minnesota, and
I crafted on mitigation being done concurrently with the
construction. The guidance issued to field offices allows them
to rachet back on mitigation by setting up some sort of a
determination or a category--I am not quite clear how it is
expressed when situations where adverse impacts are deemed not
significant, requiring that mitigation be justified
incrementally. That approach, ignoring--making a determination
on an impact that is negligible, that it is not significant or
can be done incrementally is contrary to the spirit and, I
would say, requirements of section 906. So do you have a
compendium of definitions of these categories of impacts,
adverse, significant, negligible? When do you make that
determination? How do you come to that determination?
Ms. Darcy. Mr. Chairman, I expect that we have a
compendium, but I cannot right now list off for you what that
is. I would be happy to look into it and be able to provide
that to you. Is your question how do we make the determination
about which kind of mitigation is necessary?
Mr. Oberstar. Yes. The criticism is, we have seen over the
years prior to WRDA 2007 that the Corps uses these sort of
escape clauses and ignores effects that, in the judgment of
some observers, are significant and, by the Corps'
determination, are negligible. So we need an understanding of
and a transparent process of coming to those determinations.
General Van Antwerp. We have a number of processes, Mr.
Chairman, but I think we will definitely look into this and get
the criteria back to you. But there is a lot of other agencies
that have real high stakes in this, the Fish and Wildlife
Service, the EPA for example. We have, among the Federal
agencies, a lot of different inputs that have significant
impact on it. And if there is, I think they would let us know,
too.
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[GRAPHIC] [TIFF OMITTED] 55276.038
Mr. Oberstar. And a further question: When do those other
agencies come into this process? I raise the question because
in the 2005 surface transportation bill, Mr. Young, then
Chairman, asked me to convene a group, a working group, of all
the various interests, environmental groups, the contractors,
the builders, the unions and all the rest, and the Federal
Highway Administration, to find a way to expedite projects.
What I found in this process is we have sequential review.
The Federal Highway Administration starts; and then the State
DOT; and then you have the EPA; then the State public pollution
control agency; and then you have the Council of Environmental
Quality; and then you have the Forest Service, the Fish and
Wildlife Service; and then you have the Park Service, and one
project comes in and says, you forgot about us; and then at the
tail end, there is the National Trust For Historic
Preservation, and they say, we weren't included. Well, they
were; they just didn't pay attention.
So in the highway bill that we reported from the
Subcommittee, it turned this vertical process on its side to
get everybody in the room at the beginning. How long do you
need, how long does this agency need for your permit, and let
us squeeze that time frame down and do it in a more expeditious
manner, not override it, not ignore these things, but do them
concurrently rather than sequentially.
Now, is that a part of this?
General Van Antwerp. Mr. Chairman, that absolutely is a
part of it; as we have refined our planning process, it is to
do those things simultaneously and to get all the other
agencies that have a stake in it involved very early. And for
us that usually begins when we make a decision that a project
is going to require an environmental impact statement for
example. That process has to begin very early because that is
the time driver. So if you can get that time down for that, you
have decreased the overall time for the planning studies.
Mr. Oberstar. You have all the legislative authority or
administrative authority to do this, to command all of the
various agencies to come together at the beginning of the
process?
General Van Antwerp. We have everything we need to do that.
I think to bring them all together--and a lot of it is
collaboration with them, but it is also what their mandate is
and what they are to do. All of us are now working together to
get a good jump-off. And actually it goes right into the
initial scoping, that we are all getting together to determine
what needs to be done.
Mr. Oberstar. Do you from time to time have an experience,
as I uncovered in the course of this process on the SAFETEA
legislation, an agency, for example, Fish and Wildlife Service,
we would love to do this, but we don't have the budget for it?
We can't afford to send one of our staffers off for 3 months or
6 months to do this work. So what I did was write into the
surface transportation--we will pay out of the Highway Trust
Fund that person to do this where you can't get off the hook.
This has got to be done, we can't have things drag on for
years. Now, it is not to rule out or to skirt the environmental
issue, but deal with it in a reasonable timeframe. That is what
people get exacerbated with.
Okay. Next, floodplain management. We gave the Corps, in
the 1986 Act, authority to enhance responsible floodplain
management, and required a non-Federal interest to, quote,
prepare a floodplain management plan designed to reduce the
impacts of future flood events in the project area. The plan
shall be implemented by the non-Federal interest not later than
1 year after completion of construction of the project.
Going back to Assistant Secretary Woodley, we found that
implementation was hit or miss, spotty. Are you, in the course
of the direction given in WRDA 2007, reviewing floodplain
management? Do you have some interim thoughts for us on where
you stand with this now?
Ms. Darcy. Yes, Mr. Chairman. In addition, my office and
FEMA have just reestablished the Floodplain Management Task
Force that was originally instituted, I think, in the early
1990s, but we are sort of re-energizing that because we think
it is a really important issue for us to be looking at on a
number of fronts, not only for floodplain management, but also
for some of the other Executive Orders that have been issued in
this area, as well as of how our programs overlap and can be
better managed.
Mr. Oberstar. General, do you have any comment?
General Van Antwerp. I would just make one quick additional
comment that under the Principles and Guidelines, one of the
aspects is really the nonstructural use of floodplains, which
is also very wise. It is also in the Principles and Guidelines
as one of the big factors, how do we use those floodplains, and
where possible could you have a nonstructural solution as part
of the flood-control measures?
Mr. Oberstar. "Nonstructural" is becoming kind of the
watchword. It has been around for a long time. It certainly is
a lower-cost way to deal with issues, and one nature has itself
implemented over centuries.
The final question, I think, for me is the draft revisions
to the planning Principles and Guidelines and standards, where
does that stand right now, and how is this process moving
forward, and what steps have you taken to engage the public in
this procedure?
Ms. Darcy. The draft for the Principles and Guidelines was
released on December 9th. It was released and transmitted to
the National Academy of Sciences for review. Concurrently it
was put out for public review and comment for I believe it was
60 or 90 days. But it has been extended through next month for
public review and comment. And that public review and comment
will be considered not only by the Academy, but then finally by
the interagency group headed by CEQ that will review it before
it goes final.
Mr. Oberstar. So you expect by April--you said by the end
of April?
Ms. Darcy. I think the public comment period ends April
5th.
Mr. Oberstar. Okay. Mr. Boozman, do you have any other----
Ms. Darcy. Sir, it is also up on the Web site.
Mr. Oberstar. Okay. On the Web site that we----
Ms. Darcy. Just click on it.
Mr. Oberstar. Supposedly.
Mr. Boozman. Just one thing real quick. I know that our
witnesses have to go. And again, we appreciate you being here.
Section 5001 directs the Corps to assume maintenance of
specified navigation channels upon a determination that the
assumption would be in the best Federal interest. However, the
Corps has interpreted this as requiring a full feasibility
study of the existing project, and I know there is some wording
in there that--but the reality is that as it is interpreted
now, the study can cost much more than the actual assuming the
maintenance.
Would you all--you can comment on that if you would like,
or you can just look into that and just see--again, just make
sure that we are looking hard at that and not getting ourselves
in a situation where we all agree that the thing was built in
such a manner that it is economically in the best interests of
our country, the language is in the bill, but not to make it
such where the study costs tremendously more than if we just
did the maintenance in the first place.
Ms. Darcy. We will look into that.
Mr. Oberstar. Back to the question about the concurrency of
review, and Committee staff counsel passed me a note that the
Corps has not yet issued the guidance to implement that
legislative language.
Ms. Darcy. For----
Mr. Oberstar. In section 2045 of WRDA 2007, the
streamlining of the review process. Would you take a look at
that?
Ms. Darcy. That guidance--you are correct. We will try to
get a date for when it will be done, too.
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[GRAPHIC] [TIFF OMITTED] 55276.039
Mr. Oberstar. Do you have anything else to say in your own
defense?
Ms. Darcy. I thought we did all right.
Mr. Oberstar. You are very forthcoming, and I think we have
a better understanding of where the Corps and where your
office, Ms. Darcy, stands in implementing WRDA 2007. Very
important for us as we proceed with the next water resources
bill.
And just as a message to the administration, whoever they
are, the President and his inner circle and other circles
within the circle, they have underfunded the Corps in their
proposed budget for 2011 again. This is supposed to be the
administration of change, and, "yes, we can." And the needs are
huge.
And you were here, Ms. Darcy, for our oversight of the
continuing review of the implementation of the stimulus bill.
And, by the way, my report card, now we have 1 million, 91,000
total employment, direct, indirect and induced jobs. That is
half of all of the jobs created by the stimulus that come from
6 percent of the funding. Because our funds go out--this is my
report card. I carry it around with me. It is updated every 30
days or more often. And 6 percent of the funds created half of
the jobs because we contract them. We know where they are
going. We know the formulas, and we know the agencies.
And I have been holding these hearings--we have had 14
oversight hearings. And just because the Corps got this
increment of stimulus funding should not justify what was a
$4.5 billion--does not justify cutting the continuing budget to
$1 billion. That is appalling. That is not the General's
message to take back. He has got enough. You take that back.
Ms. Darcy. I will, sir.
Mr. Oberstar. You are the policy and appointed person. Tell
them we are unhappy with that up here.
Ms. Darcy. I think they will hear you.
Mr. Oberstar. Thank you.
Ms. Darcy. And you did ask if I had one closing thing. In
my opening statement I did make a personal comment that I had a
keen interest in this, and that is because of my 16 years of
working with your Committee when I was on the Senate side, and
it is very important to me that the implementation of that
long-sought WRDA 2007 is done and done right. Thank you, sir.
Mr. Oberstar. That is right. You were there. You are
steeped in this subject. So take the message back and tell OMB,
get on with it. Look, the European community is building a
2,000-mile canal through the heart of Europe to link the North
Sea to the Black Sea. It is hundreds of millions of euros. It
is part of the $1.4 trillion infrastructure investment program.
They are halfway through with it. We need to do that at least
on the Mississippi, Ohio, Illinois Rivers. And I have already
talked about the five locks on the Mississippi that need to be
the quality of Lock and Dam 26, on the Illinois, and Europe is
going to have this project done before we ever get these five
locks off the ground. Or in the ground is the proper term for
it.
So take that message back. We are falling behind the rest
of the world. This is just not tolerable. Free the Corps. Let
it do what it does best. Give them the money to proceed.
Alright. Thank you. The panel is dismissed.
Mr. Oberstar. We have our next panel--Michael Leone, Port
Director, Maritime Administration, Massport; Mr. David Conrad,
Senior Water Resources Specialist from National Wildlife
Federation; Mr. Steve Fitzgerald, Flood Committee Chair, Harris
County Flood Control District of the National Association of
Flood and Stormwater Management Agencies; Brian Pallasch, Water
Resources Coalition, American Society of Civil Engineers; Amy
Larson, president of the National Waterways Conference.
Alright. Mr. Leone, I started with you in the naming, and
you are first listed in the agenda, so you are first up.
TESTIMONY OF MICHAEL A. LEONE, PORT DIRECTOR, MARITIME
ADMINISTRATION, MASSACHUSETTS PORT AUTHORITY (MASSPORT),
AMERICAN ASSOCIATION OF PORT AUTHORITIES; DAVID R. CONRAD,
SENIOR WATER RESOURCES SPECIALIST, NATIONAL WILDLIFE
FEDERATION; STEVE FITZGERALD, FLOOD COMMITTEE CHAIR, HARRIS
COUNTY FLOOD CONTROL DISTRICT, THE NATIONAL ASSOCIATION OF
FLOOD AND STORMWATER MANAGEMENT AGENCIES (NAFSMA); BRIAN
PALLASCH, COCHAIR, WATER RESOURCES COALITION, AMERICAN SOCIETY
OF CIVIL ENGINEERS; AND AMY LARSON, ESQ., PRESIDENT, NATIONAL
WATERWAYS CONFERENCE
Mr. Leone. Thank you, Chairman Oberstar. And thank you for
the opportunity to provide testimony on the implementation of
the Water Resources Development Act of 2007. I am Michael
Leone, director of the Port of Boston for the Massachusetts
Port Authority.
Mr. Oberstar. We should have pronounced it Leone.
Mr. Leone. But I appear today as the Chairman of the Board
of the American Association of Port Authorities, which
represents the interests of the leading U.S. public port
authorities, as well as public port authorities throughout the
Western Hemisphere from Canada, Argentina, including the
Caribbean.
I will direct my comments today to several of the policy
provisions included in the 2007 act, specifically that set of
provisions in Title II, the general provisions which deal with
the Corps' project development and review. In the 2007 act,
Congress directed a number of management measures aimed at
improving the efficiency, reliability and responsiveness of the
Corps' project development and implementation processes. Today
I would like to share our observations on the impact of the
changes and pursue the question of meeting the intended goals.
As a project development review, there are two areas of
concern, sections 2034 dealing with independent peer review,
and section 2045, project streamlining, that should be given
additional consideration by the Committee. Both sections deal
with review of project reports at different times in the
project-development process and with varying scope. The issue
that is not addressed is one of timing, when the reviews occur.
We do not believe that the Corps' current process is
consistent with the intent of sections 2034 and 2045 to assure
both thorough and streamlined review of project reports. We
believe that the review, as quality control, needs to start at
the beginning of a study, involve the local sponsor, district
and higher headquarters and/or independent entity, and be
continuous throughout the phases of the study. There should be
no surprises at the end of a cost-shared 4- to 6-year
multimillion-dollar study effort.
In my own case, Massport has invested 10 years and several
million dollars towards a feasibility study to deepen Boston
Harbor, which so far as been rejected twice by the Corps'
headquarter staff after a late-stage review surfaced
differences of opinion within the Corps on the economic study
parameters. There is no end in sight in pursuit of an approved
chief's report. In the meantime, we are losing jobs and
business.
There are currently many channel-deepening studies under
way throughout the country that are required to handle
increasingly larger vessels and for the Nation to remain
competitive in global markets. Some have been stalled for many
years and are not advancing because of technical or policy
conflicts among reviewers, the study teams and the project
sponsor. We are hopeful that when fully implemented, the
revised project development and review sections of WRDA 2007
will result in improvements in the overall project-delivery
process, and we ask the Committee to monitor that progress with
us.
A related area of concern in section 2033(e) is that of
centers of expertise. We have yet to see a viable and fully
operational center of expertise for deep-draft navigation. We
believe it is a critical missing link in fully implementing
section 2045 and streamlining the project-delivery process and
improving the quality of the planning and review process.
Attrition and downsizing have had a noticeable effect on the
ability of the Corps districts to perform all of the technical
and economic studies necessary to formulate a project. Work is
often spread among districts with mixed results.
We believe a deep-draft center of expertise with a
dedicated full-time cadre of subject matter experts can pay
many dividends in providing the most technically competent,
efficient and cost-effective project-delivery system in a
central location. The Corps' Inland Navigation Center of
Expertise has been fully operational since 1981 and provides
world-class products to Corps districts in the navigation
industry. So we know what success looks like and would like to
see that replicated for the deep-draft navigation to the
benefit of all four coasts. We are working with the Corps on
the center of expertise concept through our Quality Partnership
Initiative and ask for the Committee's continued support as
well.
Additionally, sections 2005 and 2029 of WRDA 2007 speak to
the need for adequate dredge material management, beneficial
use of recovered sediments, and use of multiple factors in
judging the benefits to the Nation for investing in maintenance
dredging. However, we believe it is time to revisit the 24-
year-old Harbor Maintenance Tax and Trust Fund authorized in
1986 that is the sole source for reimbursement of Federal
maintenance dredging funding. Port and harbor users are paying
for the full maintenance and getting half in return. The tax
revenue of about $1.4 billion annually would be adequate to
maintain Federal channels if fully applied.
Congressional intent notwithstanding, there is no provision
in the original authorization to dedicate that tax revenue for
its intended purpose. We ask the Committee to consider
legislative provisions to ensure full use of the tax for
maintenance dredging in the subsequent WRDA, hopefully this
year.
And finally, Mr. Chairman, I would like to commend your
leadership for section 3091 of the 2007 act, which finally
provided a resolution and direction necessary to get the
construction started at the Sault Ste. Marie for the second
lock. This is a project of national significance that directly
impacts the Great Lakes and St. Lawrence Seaway portions of our
national freight system. Our Great Lakes Members look forward
to the jobs, efficiencies and transportation cost savings the
new project will bring.
Again, thank you for including the American Association of
Port Authorities in these proceedings.
Mr. Oberstar. Thank you very much, Mr. Leone.
Mr. Oberstar. I do appreciate all of your comments, but
especially the latter. It is nice to have that attention paid
to the needs of the Great Lakes from the association, and just
a quick question before out next witness. What is your current
channel depth? Is it 38 feet?
Mr. Leone. We are 40 feet.
Mr. Oberstar. And you want to go to 45? The Corps wants you
to go to 48?
Mr. Leone. In the initial study we felt we needed to go to
45 feet, but when the analysis was completed, the local
district determined that 48 was probably the optimum depth for
us. We feel that 45 would be adequate, but we are arguing on
the economic parameters as to whether it is 48 or 47. So we are
doing numerous studies, and as a result of this 10-year process
and the multimillion dollars we have spent, we have yet to
reach a resolution as to what is the correct depth and what the
correct benefit-cost ratio would be.
Mr. Oberstar. We can pursue that further and perhaps in
another venue. But it is of great interest to me with the
opening of the Panama Canal, and the larger-capacity vessels
coming to all of our seacoasts and to the gulf, with container
transport possibly upbound on the Mississippi, ports have to be
ready with the proper channel depth to accommodate this whole
new post-Panamax capacity. And I don't know if the--if Maersk
calls on the Port of Boston, but Sally Maersk and Regina Maersk
with 6,000 and 6,600 containers respectively have now been
outdistanced by the newest class of Maersk vessels with 13,000
containers at a 50-foot channel depth requirement. Those are
going to call--or if you want them to call on your port or
other east coast ports, you have got to have that channel
updated. And you cannot do it 5 years from now, you need to
start doing it now.
Mr. Leone. Mr. Chairman, you are absolutely correct. And I
think many ports along the gulf and east coast are trying to
prepare. Not everyone needs to have 50 feet, but there are
numerous ports that will need it. And that is why we have been
preparing for many, many years, as other ports have done so.
So it is important to get the authorization necessary
because we are in the process of also dredging our own berths
at our own cost, buying cranes that can handle these larger
vessels. So we are making the terminal infrastructure, but it
is very, very important, it is essential, to have that highway,
the Federal channel, into your berth.
Mr. Oberstar. Thank you. Mr. Conrad, thanks for being with
us, and thank you for the great work of the National Wildlife
Federation for these many years when I started up here as a
clerk of the Subcommittee on Rivers and Harbors.
Mr. Conrad. Thank you very much, Mr. Chairman and
Congresswoman Boozman. On behalf of the National Wildlife
Federation, we deeply appreciate the interest and work of this
Committee on providing oversight for the Corps program.
We have a lengthy statement for the record, which I will do
my best to summarize. We have particularly focused on what we
believe to be among the most critical WRDA reform areas, the
peer review, mitigation of fish and wildlife and wetland
losses, and revision of the principles and guidelines. But
first I want to speak to the reform issues in their context.
These WRDA reform provisions were enacted in the wake of
the terrible consequences of Hurricane Katrina and a series of
damaging hurricanes and storms in 2004 and 2005. In addition,
the Nation was growing increasingly aware of the threats of
climate change and sea level rise, continued deterioration of
critical fish and wildlife habitat and health of natural
ecosystems, and increasingly severe instances of flooding and
drought conditions.
After the findings emerged about the background and
conditions of the New Orleans--this levees in New Orleans, this
was, in essence, as much a manmade disaster as a natural
disaster, many felt that the WRDA reforms were all the more
necessary. These were also adopted against a backdrop of the
General Accounting Office--or the Government Accountability
Office having reported that recent Corps studies "did not
provide a reasonable basis for decisionmaking"; that they were
"fraught with errors, mistakes and miscalculations, and used
invalid assumptions and outdated data." Those are all in
quotes. GAO also testified failings were "systemic in nature
and therefore prevalent"--"and therefore prevalent throughout
the Corps Civil Works portfolio." That confirmed a pattern of
egregious pattern flaws that have been revealed by more than a
decade of analysis of NAS, GAO, Army inspector general,
independent reports, and such as the coastal Louisiana levees
and the Upper Mississippi lock expansions.
These reforms are not just about technical planning matters
and minute details of the law. We have received major wake-up
calls that the impacts of activities of the Corps of Engineers
have profound impacts and implications for our citizens, the
environment and the Nation's future development. We cannot
simply do things the same way.
Mr. Chairman, we have reviewed the guidance and extensive
amount of material provided by Assistant Secretary Darcy and
the Corps. On the whole we found that to date the
implementation of these reform provisions in many cases is
barely under way. Guidance prepared in many ways falls short,
in some cases far short, of what we believe Congress and the
law intended, and the objectives sought in the WRDA reforms are
still mostly unimplemented.
On independent peer review, we would first applaud the
Corps for at least broadly embracing the concept of peer review
even beyond that required by WRDA. But on the ground, WRDA's
independent review process--WRDA's independent review process,
we find the process has been weakly implemented, is highly
obscure, and has failed to involve the public, and is almost
completely out of public sight. The Corps reported that in 13
of 14 ongoing completed external peer reviews, and 4 of the 5
ones that were completed among those, the reviewers had not
taken any public testimony or otherwise obtained public input.
Conversations with conservation activists and State officials
across the country have shown a near universal lack of
awareness of and lack of public involvement in these processes.
Locating review plans and completed IEPR reports on district
Web sites is in many cases difficult or impossible. Reviewers'
names can generally not be located until after reports are
completed.
We believe Corps guidance and the lack of public input will
likely discourage review panels from reviewing issues outside
whatever is included in the charge set by the Corps'
contractor. This would defeat some of the main purposes of
external review.
On mitigation of fish and wildlife and wetlands, we looked
extensively at implementation of the new section 2036
provisions. We are extremely concerned that the compliance with
these provisions appears to be lagging. WRDA added great
specificity to the definition of mitigation plans: standards
for in-kind mitigation, requirements for ongoing monitoring and
consultation with Federal agencies and States, and reporting
annually to Congress on progress for ecological success, and
contingency plans for speeding progress where progress was not
being made. Regrettably, our review found implementing guidance
and mitigation plans developed by the Corps demonstrating that
the Corps had made little progress in complying with even the
most basic of mitigation reforms.
In one example we cited, a waterway channel improvement
project, the Galveston district of the Corps concluded that
resources which were not nationally or otherwise significant
need not be mitigated. Such a standard, which is directly
contrary to section 2036, would likely result in far less
mitigation than WRDA requires.
We reviewed documentation of 32 projects the Corps said
fell within parameters of the Senators' request for
information, and in 17 projects for which we could locate
adequate information for a judgment beyond those with
negligible impacts, we found all 17 essentially out of
compliance with WRDA's requirements, and in some in unusually
multiple major ways. The process for monitoring ecological
success is essentially unimplemented, in our opinion.
Finally on principles and guidelines, Mr. Chairman, WRDA
2007 enacted a new water policy that requires a fundamentally
different approach to water resources project planning, and
directs the Secretary to develop new planning principles,
guidelines and procedures to modernize water planning.
We are very pleased that the White House Council on
Environmental Quality has taken on a key role in facilitating
the revision and updating the principles and standards. We also
applaud Congress for directing attention to the need to update
water resources planning, and applaud the administration for
recognizing its importance across the Federal Government.
A new PNS provision proposal is now set to receive public
and NAS comments, and we recognize the process will
appropriately take considerable time to unfold. But the
potential long-term benefits to the Nation make this a highly
important exercise.
In our written statement we raise critical concerns that
planning should be driven by Federal law and policy, not simply
by benefit-cost-only framework. Environmental protection and
restoration need to be fundamental objectives for water
planning in the 21st century.
We are also concerned that economic requirements not
undermine the new policy requirements to protect and restore
natural ecosystem functions. And a base of science, including
recognition of climate change and sea level rise, and greater
emphasis on nonstructural approaches in integrated water
resources planning is essential to a modernized planning
process.
Mr. Chairman and Congressman Boozman, once again on behalf
of the Federation, we greatly appreciate the efforts being made
by the Committee to follow up progress of implementing the
reforms of WRDA 2007. I would be happy to answer any questions.
Thank you.
Mr. Oberstar. Thank you very much for a very thorough
statement. And, of course, your entire document will be
included in the Committee record.
Mr. Oberstar. And now Mr. Fitzgerald.
Mr. Fitzgerald. Thank you, Chairman, Mr. Boozman.
The National Association of Flood and Stormwater Management
Agencies, or NAFSMA, we represent about 100 Members, mostly
large urban agencies, and about 76 million citizens. Our
Members on the front line are reducing loss of life and
property damage from floods, improving the quality of the
Nation's surface waters and riparian habitats, and helping
guide the design and construction of low-flood-risk and
affordable communities.
NAFSMA not only supported passage of WRDA 2007, but our
Members have experience complying with it in previous WRDA
bills as partners with the Corps of Engineers. We recognize the
Corps has had a challenge developing guidance for such a large
bill, but they have done a good job setting priorities. From a
local perspective, most active studies and projects are not
being held up waiting for new implementation guidance.
My testimony today will focus on four of the general
provisions in WRDA 2007; first, independent peer review. It
takes multidisciplinary teams to address the many
interdependent and interrelated factors that influence
analysis, evaluation and decisions. Our Members welcome any
assistance provided, provided it is helpful in advancing the
study, results in a better project and does not hinder
progress.
In practice, some feasibility studies that were near
completion have been delayed to comply with new peer-review
requirements, with no substantial improvement in the
recommended course of action. We believe peer review will be
beneficial when it is actually utilized as stated in the bill.
In all cases, the peer review shall be accomplished concurrent
with conducting the project study.
The second provision, the principles and guidelines
updates. As you would expect, we have been active in this
effort. While NAFSMA supports and agrees with most of the draft
principles and standards issued by CEQ in December, we feel
there are some areas where clarifications and emphasis is
needed. First, while some believe that historically there has
been a bias towards economic benefit, it is imperative that
future water resources planning emphasize the balance and
recognize interdependence of economic, environmental, public
safety and social factors. Easier said than done.
Next, the non-Federal sponsor is an active partner with the
Federal Government in terms of contributing funding, local
knowledge and expertise. Active participation by the non-
Federal sponsor during all phases of the planning process is
critical to the success of the study and subsequent project.
And finally, NAFSMA members are concerned that the new
principles and guidelines will make the planning process even
longer, more expensive and more complex than it is now.
Resources, funding and patience are limited. To fully
appreciate how the proposed standards will change the planning
process, NAFSMA recommends that the Corps and NAFSMA work
through an example flood risk reduction study from initiation
to completion while the National Academy of Sciences is
preparing its comments.
The third provision I want to address is actually two:
planning and streamlining. The current process that I mentioned
has evolved into such a long and costly exercise that doesn't
necessarily yield better decisions or projects. So what are we
doing about it? Well, the inclusion of these two provisions in
WRDA 2007 was a good first step.
Mr. Fitzgerald. A NAFSMA work group has identified four
basic problem areas and is developing alternatives to address
them. We understand the Corps' senior leadership and Secretary
Darcy's office have made this a priority as well. It will take
a sincere, considerable, and collaborative effort from local
sponsors, the Corps, and Congress to make significant
improvements.
Finally, the National Levee Safety Program. The National
Committee on Levee Safety carried out the necessary work,
prepared an excellent report, and continues to function
effectively and productively. National believes that
significant progress has been made on several of the
Committee's 20 recommendations since your hearing on this topic
last May.
For example, the Corps and FEMA have made substantial
progress completing the National Levee Inventory and Database.
However, additional authority is needed to include data for
those levees owned and operated by non-Federal entities. Much
work is still needed to improve levee safety in this Nation.
In closing, WRDA 2007 was a much-needed piece of
legislation that helped our Nation move forward. It is now time
to take the next step forward by pursuing the passage of WRDA
2010 to continue our critical water resource needs and protect
the Nation's population, environment, and critical
infrastructure.
Thank you for inviting local sponsors to make this
presentation today before the Committee.
Mr. Oberstar. Thank you very much for your testimony, and I
appreciate your participation today.
Our next is the Water Resources Coalition.
Mr. Pallasch, thank you for being here.
Mr. Pallasch. Thank you, Mr. Chairman, Members of the
Committee. I appreciate being here.
My name is Brian Pallasch, and I am the co-chair of the
Water Resources Coalition and managing director of Government
Relations and Infrastructure Initiatives at the American
Society of Civil Engineers. I am pleased to appear before you
today as we talk about the implementation of WRDA 2007.
Title II of WRDA 2007 contains many key policy requirements
for the Corps to complete on independent peer review, dredge
material disposal, technical assistance, access to water, data,
planning, shore protection projects, and other program
requirements. Title IX called on the establishment of the
National Committee on Levee Safety.
First, I want to talk a little bit about principles and
guidelines.
In December of 2009, as many of my colleagues have noted,
the White House Council on Environmental Quality released for
public comment its version of the principles and guidelines.
The Water Resources Coalition believes the current proposal
fails to meet the congressional intent and still needs to be
reworked.
First, the proposal speaks to the need to incorporate
public safety into the planning process, but it does not
continue the discussion of the obvious ways to achieve the
goal. Specifically, nothing in the proposal identifies the
unequivocal need for resiliency in the design and construction
of Federal civil engineering projects. In engineering terms,
resiliency is the ability of an infrastructure system to
recover its function after it is damaged by a natural disaster
or a man-made attack.
Sustainability and resiliency must be an integral part of
improving the Nation's infrastructure. Today's infrastructure,
especially flood control systems, must be able to respond to
and change with dynamic conditions. By incorporating
resiliency, disasters will pose less of a threat to public
health and will minimize disruptions to our economy.
Second, the proposal's discussion of the use of cost-
benefit analysis and the development of water resource projects
is flawed. The CEQ needs to explain in some detail how it will
require cost-benefit analysis to be employed and especially how
it will be possible to monetize the social or environmental
benefits of projects and how these benefits can be compared to
economic benefits and public safety.
Nearly 5 years after the devastation of Hurricane Katrina
and 1 year after the release of the National Committee on Levee
Safety's recommendations, Congress has still not acted to
create a National Levee Safety Program. While the Corps of
Engineers has begun work and made significant progress, there
is no comprehensive and dependable catalog of the location,
ownership, condition, hazard potential of all of the levees in
the United States.
As of February 15, the Corps had inventoried or contracted
for inspection approximately two-thirds of the more than 14,000
miles of Federal levees. Another 21 percent of the levee
mileage is under contract for inventory and inspection.
However, by some estimates, there are more than 100,000 miles
of levees in the United States. We still have a long way to go
to complete a national inventory of levees.
Title IX of WRDA created the National Levee Safety Program
Committee; and the goal of a robust nationwide levee safety
program, though, remains an aspiration rather than a reality
today.
The Committee on Levee Safety submitted its interim report
with the Office of Management and Budget in January of 2009. We
feel very strongly that Congress should adopt many of the
recommendations of that Committee and enact legislation to
establish a national levee safety program. We also feel
strongly that this program could be modeled on the successful
National Dam Safety Program and possibly merged with that
program.
Additionally, Congress should also examine FEMA's
certification rule for levees. Congress should direct FEMA to
amend the rule to change the requirement from a certification
to an NFIP evaluation. The term "NFIP evaluation" is preferable
over the present "certification requirement" to make it clear
that an evaluation is merely a judgment that a levee system is
in conformity with the requirements of NFIP regulations.
The National Shoreline Erosion Control Development Program
was established by section 227 of WRDA back in 1992. It is
designed to test new technologies that will improve or reduce
the cost of Federal beach restoration projects. There are
currently seven testing sites being used by the Corps.
Section 2038 of WRDA 2007 contains important modifications
to that program. For example, the original section 227 program
did not permit the Corps to cost share these projects with
local governments. In addition, where technology was
demonstrated to work, section 227 did not permit the technology
to be seamlessly integrated into existing Federal beach
restoration projects. These weaknesses have been corrected in
section 2038.
Currently, the Corps has issued no guidance on this
program. This is an important program. Coastal areas of the
Nation are at risk from serious storms that endanger lives and
property. We cannot afford a lack of implementation guidance
for section 2038 to stall this critical program.
With that, Mr. Chairman, I will end my remarks and be ready
for your questions.
Mr. Oberstar. Thank you very much, Mr. Pallasch.
I will have some questions when we come back, but I would
just observe, on the levee safety program, in light of your
comments, that report and the recommendations are being crafted
in legislative language to be included in the water resources
bill for fiscal year 2011.
Ms. Larson, you are next.
Ms. Larson. Thank you, Mr. Chairman, Mr. Boozman.
My name is Amy Larson. I am the President of the National
Waterways Conference.
The Conference, established in 1960, includes in its
membership the full spectrum of water resources stakeholders,
including flood control associations, levee boards, waterways
carriers and shippers, industry and regional associations, port
authorities, shipyards, dredging contractors, regional water
supply districts, engineering consultants, and State and local
governments. Given our diversity, our membership is keenly
interested in the development of planning of all types of water
resources projects.
My comments today will be focused on the principles and
guidelines applicable to the planning and development of water
resources projects and the proposal issued by the Council on
Environmental Quality related to this effort.
Attached to my written statement is a copy of the comments
the Conference submitted to CEQ in response to its proposal,
and I respectfully request that they be included in the record
here.
Mr. Oberstar. Without objection, so ordered.
Ms. Larson. As this Committee well knows, reliable, well-
maintained water resources infrastructure is fundamental to
America's economic and environmental well-being and is
essential to maintaining our competitive position within the
global economy.
Our water resources infrastructure provides lifesaving
flood control, navigation critical to national security and
commerce, abundant water supplies, shore protection, water
recreation, environmental restoration, and hydropower
production. As a consequence, the planning and development of
water resources projects are vitally important. With that in
mind, we are very concerned that CEQ's proposal falls short of
enacting a policy model envisioned by Congress in enacting the
Water Resources Development Act of 2007.
At the outset, water resources planning ought to be
governed by a well-defined set of overarching principles which
set forth the national interest in water resources development,
management, and protection. The principles should establish a
clear, concise, and workable planning framework to guide the
development of project recommendations through an unbiased,
scientifically sound analysis; and they must recognize the
critical role nonFederal sponsors play in project formulation
and development.
Fundamentally, these revised principles should strengthen
the executive branch's ability to recommend to the Congress
economically and environmentally sound projects; and they must
be clear enough to drive understandable processes and
replicable outcomes, thus enabling the nonFederal interests to
make complementary plans.
Unfortunately, the proposal issued by the Council on
Environmental Quality fundamentally fails to establish a path
to balanced solutions, clear and consistent guidance to
planners, or replicable results that are understandable to all
stakeholders. At the outset, the proposal doesn't really
establish a workable set of principles at all, but instead uses
the concepts of principles, guidelines, standards, and
procedures interchangeably so that the proposal itself is
confusing and unworkable.
WRDA 2007 contemplates planning founded upon multiple
national objectives--economic, environmental, and social well-
being, including a public safety objective. And, additionally,
WRDA 2007 emphasizes a watershed approach to planning,
recognizing the importance of collaborative planning and
implementation.
We are concerned that CEQ's proposal, an apparent
contradiction of the directive in WRDA 2007, does not promote
coequal objectives in water resources planning but, instead,
elevates environmental considerations at the expense of
economic benefits. This approach would be especially
detrimental to flood control, navigation and water supply
projects.
The proposal also sets forth a confusing approach to
watershed planning. Although it appears to recognize the
importance of watershed planning as called for in WRDA 2007,
watershed plans are then explicitly excluded from the process.
It is unclear why a comprehensive planning framework would
exclude watershed plans; and this is particularly troubling at
a time when our Nation, both at the Federal and State level, is
working towards the development of collaborative watershed
planning, rather than planning on a project basis.
We are also concerned the proposal establishes an
unworkable policy with regard to the use of floodplains. While
directing avoidance of the unwise use of floodplains, the
proposal does not provide criteria for determining what that
would be. Instead, it appears to create a bias for selecting
nonstructural approaches, thus limiting in practice full
consideration of all alternatives.
This approach ignores the recognition in WRDA 2007 that
sometimes use of the floodplains cannot be avoided, providing
that in such cases planners should seek to minimize adverse
impacts and vulnerabilities. CEQ's proposal appears to preclude
consideration of all alternatives and instead support a
nonstructural or no-action alternative. Such a policy would be
devastating to many communities in or near the floodplains.
I see, Mr. Chairman, my time is up, but I would like to
draw your attention to the procedural concerns that are
outlined in more detail in our written comments. They are much
more complex in those comments.
Mr. Oberstar. Go ahead.
Ms. Larson. But, in sum, we are concerned that the process
does not provide the transparency needed to establish a viable,
long-term planning model for our WRDA resources.
Thank you, Chairman Oberstar, Mr. Boozman, for the
opportunity to appear before you today; and I look forward to
answering any questions you might have.
Mr. Oberstar. Thank you, Ms. Larson.
I do have some questions. We will proceed.
Earlier in the hearing we had a group from Mr. Cao's
district in New Orleans, a school that we recognized; and I
would like to take this opportunity to acknowledge the Eveleth-
Gilbert school Close Up group who just entered the room and
welcome them to the legislative process.
This is an oversight hearing on the work of the Corps of
Engineers implementing Water Resources Development Act of 2007.
A unique bill, not only because it covered 7 years of
authorizations needed for the work of the Corps of Engineers on
the inland waterways, ports and harbors and flood control areas
of the country, but also because it was unique in that the
Congress overrode a veto to put it into effect.
So welcome, students, to this unique hearing that the
Committee is conducting.
Now, Mr. Conrad, you raised concerns about the ability of
the public to participate in independent reviews. Have you
participated in independent review?
Mr. Conrad. In a specific independent review, I am just
trying to think. Well, I have been involved in a lot of
different processes. I am not sure that I actually have been
involved in one, directly involved in one of the new IEPRs, no.
Mr. Oberstar. Well, what about other members of your
organization? You say this whole process--I made special note
of it--is highly obscured, completely out of the public eye.
Mr. Conrad. Right.
Mr. Oberstar. And a universal lack of awareness, that you
searched the Internet and could not find a review plan. We had
some discussion of that earlier with the Chief of Engineers.
Does that characterize the current situation?
Mr. Conrad. Well, what I would say is that there are a lot
of projects that are listed in one of the tables that the Corps
of Engineers provided to Congress in terms of ongoing,
independent peer reviews. In the last few weeks, I spoke with
conservation leaders, State, and State officials, particularly,
and even some news media people who regularly are involved in
those projects. And many of them--most of them, with really one
major exception, and that was a project at Louisiana coastal
protection, were rather shocked to hear that even though they
had been to many, many meetings of the Corps of Engineers in
planning those projects, they had not heard about the
independent peer reviews that the Corps listed were under way;
and they were, well, again, rather shocked because they thought
they were following things very, very closely.
That shocked me when I heard that. I began to realize this
process is really just an internal process at the moment for
the Corps. It is not being delivered as a process that would
embrace any kind of public input.
Mr. Oberstar. That is business as usual, and that is not
what we had in mind. We had in mind in WRDA of 2007 changing
the process, making it open to the public, transparent, and
accessible.
Mr. Conrad. Right.
Mr. Oberstar. You heard the exchange I had with the
Assistant Secretary and the General that I went on the Web, I
couldn't find their information. Well, I am no expert on the
Web, but I used the procedures that most everyone else would
use, and you shouldn't have to be an expert on this thing.
Now, do you think what General Van Antwerp said was
sufficient, that they are going to fix the Web, that they are
going to make this a success? Is that enough? Don't they need
to have an active outreach?
Mr. Conrad. I think it is going to need a lot more than
that.
The way the Corps--the newest Corps guidance which, by the
way, I couldn't find on the Web either, the 209 guidance, which
came out on January 31, the way that guidance contemplates the
process, the review plan is supposed to be up front, and it
would lay out when and where the review would take place.
But what the public is going to need is to know who are the
reviewers, that they are going to need opportunities, I think,
to be able to communicate with reviewers. Reviewers are mostly
dealing with technical issues, but the public, in many cases,
has technical information that is necessary and valuable to
reviewers.
So I think they are going to need to create a more robust
process than what we see so far.
Mr. Oberstar. Your testimony suggests there are gaps in the
Corps' mitigation program, that adverse impacts go unaddressed,
either because the Corps doesn't consider the resource
significant or because they don't believe that the mitigation
is justified. But those are issues that we tried--the Corps has
been criticized for this attitude for many, many years; and we
tried to give them a means by which to overcome those
objections.
So now is there an assessment of the cumulative effect of
unmitigated harm? Should there be one? How should it be done?
Mr. Conrad. Well, as we looked at the fairly high degree of
specificity that you all included in WRDA 2007 in terms of what
should constitute plans, what they should be looking at--I am
talking about the mitigation plans-- it is rather hard to
understand how that could be any less clear that these are
required with each project, that if it is nonnegligible impact,
anything other than nonnegligible impact should be part of a
plan, part of a plan, they should be monitored and reported
back to Congress with consultations with State and Federal fish
and wildlife agencies.
All of these different processes, unfortunately, they just
haven't been implemented yet. Cumulative effects should
definitely be part of that, I would think. I think we may have
to look very closely to see what else could bring the Corps to
be more responsive to that.
Mr. Oberstar. Well, the National Wildlife Federation has
been engaged in these processes for decades, beginning when I
started here on Capitol Hill; and we need to take--pay careful
attention to those comments. We want to be sure that all
organizations are included.
Now, let me yield to Mr. Boozman for such questions as he
may have.
Mr. Boozman. Thank you. Thank you very much.
Mr. Pallasch, the WRDA 2007 authorized a rewrite--or there
is a rewriting of the principles and guidelines. In your
opinion, how has CEQ strayed from what ASCE thought it was
advocating. Does that make sense? I know that you all were
supportive in the sense of going forward and looking at this.
Do you have concerns now that maybe we are straying a little
bit beyond what you thought would be the case?
Mr. Pallasch. Sure, Congressman. I think one area that we
have great concern, especially after our experience with
Hurricane Katrina and working with the Corps of Engineers, is
this concept of public safety. I think the principles and
guidelines started with a single approach of looking at the
economic benefits of a project. Obviously, the environmental
benefits and environmental issues came into play; and that is
an acceptable second leg of the stool, if we want to think of
it as that.
I would, ASCE and the Coalition, the Water Resources
Coalition, feels very strongly that public safety needs really
to be the third leg of that stool. As we look at--when you are
looking at a project, certainly when you are talking about
flood control projects, levees, and things like that, public
safety is paramount when we are looking at those types of
activities.
We also have some concerns, as you try to monetize the
environmental benefits, that there is no agreed-upon
monetization of that, if you will.
I am not an economist, but certainly there is a lot of
skepticism as to how we approach that issue, and I think the
same is probably true to be said for public safety. So we have
those concerns. Certainly we are going to be filing our
comments. We got an extra 30 days, I guess, yesterday so we are
pleased to have a little bit more time to comb through the
document.
Mr. Boozman. Can you comment on that, Ms. Larson? I guess I
would like to know what you feel like CEQ is doing to ensure
public involvement, making sure that organizations like yours
are able to petition the Federal Government.
Mr. Pallasch. I think at the beginning of the process the
Water Resources Coalition was rather frustrated by the
switching of the process, shall we say. The Corps of Engineers
was in charge. You all gave them the charge of rewriting the
principles and guidelines, and certainly ASCE supported that.
We had some of our members who were calling for that over their
lifetime of using that document.
In the middle of the game, shall we say, we a little bit
changed the rules. And CEQ was put in charge, and we expanded
it from being a rewrite simply for the Corps to going to all of
the groups that were involved, and I think it is actually a
little bit broader than just the four agencies.
Not that that maybe wasn't the right thing to do, to expand
it a little bit. I think there were some time issues involved
in that where there was only a 30-day comment at the beginning,
and I think we would have been better served with a little bit
more of an open process.
Mr. Boozman. Ms. Larson.
Ms. Larson. Thank you, Mr. Boozman.
We have substantive as well as procedural concerns with it.
At the outset is the question of whether the agency with the
most expertise in water resources planning is at the helm here,
and we have serious concerns about that. I don't think it
should be CEQ.
With respect to the substantive concerns, as I stated in my
remarks, there really is no set of principles that is
established; and we are concerned that if we are looking for a
viable long-term planning model, this document doesn't have
that for a variety of reasons, including that it is confusing
and unworkable but also that it elevates environmental over
economic. There is really no balance there, which would be
devastating to the navigation and flood control projects. It
promotes a nonstructural approach to floodplain use, sort of a
biased approach there without that balance as well.
Those are the substantive concerns in a nutshell.
On the process side, I have two concerns about that as
well.
First, the second phase of this process is already started.
That is the development of the guidelines. I am saying
guidelines. They have an interchange of words here. But that
seems a bit premature. How can one develop guidelines when the
principles are not established? Principles should be the
foundation. You can't build a house without the foundation
properly built, so they seem to be getting ahead of themselves.
The other part of this is a procedural due process concern,
and it falls back on the Administrative Procedure Act. Now, I
recognize this is not construed at the moment as a notice and
comment type of rulemaking. But in a notice and comment type of
rulemaking, an agency is required to at least respond to and
address the comments. Failure to do so would be considered
arbitrary and capricious and grounds for reversing that
decision in the Court of Appeals.
At this point, the CEQ has not explained what the process
is, how any comments will be addressed, how they will be heard.
That could be, in an agency rulemaking, something as simple as
saying we have heard your comments, we are not persuaded
because of these reasons, but at least setting forth that
explanation. We don't even have that at this point. So, really,
there is no transparency. And if we are talking about long-term
viable planning, this document does not set that foundation.
Mr. Boozman. Very good. Thank you very much.
Mr. Fitzgerald, very quickly, because we do have votes and
I think the Chairman perhaps wants to follow up, but levee
safety, some of my communities were, you know, got involved in
that very early on and got in the process. It does seem, when
you look at the timeline, the timeline really becomes pretty
unworkable by the time you do things back and forth.
I guess what I would like to look for is, you know, with
your help is a little softer landing. I think our communities
are committed to doing that, but it seems like what they are
faced with right now is pretty significant. When you look at
the timelines, when they are trying to act in good faith, it
becomes a real problem.
Mr. Fitzgerald. Yes, the timeline on identifying a project
or making a decision has taken a long time. I am not sure what
the average time is, but some in our community are taking 10
years plus to go through the planning process. Some of it, as
local sponsors, we have a responsibility to help and do our
part. We recognize this. It is not all the Corps. We have
responsibilities, too; and we are willing to step up to the
plate where we can.
But I think this has evolved over the years. You know, when
something would go wrong, we have a human tendency to add
another step, you know, try to make it not happen again. I
think over the last 50 years this process has evolved into
something that has gotten difficult to try to make work.
The four areas that we--when we started doing a survey with
our NAFSMA members, we were able to put the problems in four
areas; and one of them was the process itself, it is a little
bit unwieldy. The second is people. It takes people to do a
study, to look at the problems, and come up with good
solutions. So the people side is one of the areas we need to
work on.
Another one is the written guidance itself. It has evolved
over time and is very difficult to kind of work your way
through it, and that needs to be somewhat cleaned up.
And the third one is, of course, the funding and budgeting.
If you can have an uninterrupted funding cycle, you can get
through the process more quickly. But I know sometimes the
nonFederal sponsor can't come up with their finding; and that
kind of slows it down sometimes, too. It is not only a Federal
thing.
But I think with the principles and guidelines updates,
this gives us a great opportunity to look at all these areas
and build into these guidelines and procedures that each agency
is going to come up with to try to make sure this doesn't get
more complicated but that we can streamline and get the
planning process where we all would like for it to be. So I
think we are at a good crossroads in the United States to be
able to do that.
Mr. Boozman. Thank, Mr. Chairman.
Mr. Oberstar. Well, thank you for those questions, Mr.
Boozman, and for the responses. That is what we are trying to
get at, is a more streamlined procedure. We want to be sure
that the public is engaged, there is openness in the process,
transparency in what is happening but also that we move the
whole procedure along. That is why I spent a great deal of time
on that issue with General Van Antwerp on the matter of
expediting.
We have taken from the surface transportation bill of 2005
the project-expediting language, put it into the Corps of
Engineers' WRDA bill, and now we have taken that language and
refined it further and put it into our next surface
transportation authorization bill that has been reported from
the Subcommittee.
But we need to continue working and delivering to the
public the product that agencies are supposed to deliver. If it
takes 3 years to do a simple mill and overlay in a highway
project, the public sector is not being efficient. If it takes
14 years to do a transit project from idea to ridership, the
public sector is not being efficient. In the meantime, bond
issues expire, the public loses interest, projects die, and the
same thing for the water program.
Maybe these two goals are mutually exclusive, public
review, the public input. I don't think so. I have been engaged
in this--this is my 36th year in Congress, and I just--I know
that we can make things work better.
There are issues, some, perhaps, you can't resolve.
Eventually, someone has to make a decision, but the process of
getting there has to be more expeditious than it has been in
the past.
Now, Ms. Larson, one of the concerns raised--and you have
done a very great, detailed comment on the draft revisions to
the principles and standards; and I like your distinction
between principles, which should come first, and the standards
and implementation, second. What I have heard from the
waterways community is that the document does not have or it
appears that the Corps does not draft this document with their
navigation mission in mind. Is that your review of things and
how would you propose to adjust that?
Ms. Larson. I would agree with that. Our structure of
comments was on broad-based policy rather than section by
section because it is so unwieldy and these defects, I think,
are throughout the document. But I think overall the navigation
mission and the flood control mission, in particular, are
relegated to second class in this document.
I think we need to find the appropriate balance between
economic and human uses of our water resources and
environmental and ecological considerations; and that includes
ensuring that the navigation, flood control, and water supply
projects are addressed; and it includes an unbiased look at all
alternatives, structural and nonstructural. I think if we can
strike that balance between economic and environmental, we can
ensure that all the water resources projects are addressed.
Mr. Oberstar. And in timely fashion.
Ms. Larson. Correct.
Mr. Oberstar. I remember, as a parenthetical observation,
Muriel Humphrey saying to Hubert at one time, ``Hubert, a
speech to be immortal need not be eternal.'' A review, to be
effective, need not take forever; and that is what we are
trying to get, a proper balance.
Just two more questions, we have 2 minutes remaining on a
vote.
Mr. Fitzgerald, as we have proceeded on the oversight of
the implementation of the requirement on the Corps to undertake
responsible flood plain management and prepare, quote, a flood
plain management plan designed to reduce the impacts of future
flood events in the project area, et cetera, et cetera, do you
have experience with implementation so far of section 402? What
are your views on what the Corps is doing in pursuance of that
language?
Mr. Fitzgerald. In Harris County, the Harris County Flood
Control District, we are very aware of this requirement and we
and other local sponsors in the United States agree with it.
Once we invest with the Corps or any project, a lot of time,
effort, and money into a project to reduce flood risk, we want
to make sure that that level of protection does not deteriorate
over the years. That is what the important part of the flood
plain--or that is the reason for the flood plain management
plan, is that actions aren't taken over the years to where that
level of flood protection deteriorates.
We take that very seriously, and we are actively preparing
those on a couple of projects during the study phase. I know
the law says or the guidelines say we don't have to do it until
after the construction is finished. That can take a long time
to do. And while we are in the analysis and study phase, that
is the time we need to be developing our flood plain management
plans, and we are doing that now.
We look forward to completing a flood control project, a
new one, so that we can actually implement those new flood
control plans, flood plain management plans. So we do agree
with it. We think it is very important.
Mr. Oberstar. Thank you.
Mr. Pallasch, have you--that is, you personally, but also
your organization or your members, had an opportunity to
participate in developing the revisions to the principles and
guidelines?
Mr. Pallasch. Early on, when the Corps of Engineers started
drafting their revisions, there was a couple of days' worth of
listening sessions that they held in the Water Resources
Coalition. ASCE, AGC, the whole list of our groups all
participated in that.
Since that time, once it was taken over by CEQ, it was more
a discussion via correspondence than a listening session type
of arrangement.
Mr. Oberstar. So when it got out of the Corps' hands, then
you said it became more bureaucratic, more cumbersome?
Mr. Pallasch. I think it may have become a little bit more
of a closed process.
Mr. Oberstar. A closed process. Well, that is not what we
want. We want it to be open.
I want to thank the witnesses for their contribution and
testimony, for your written documents, which were very, very
helpful. They show that each has undertaken a great deal of
time to evaluate the subject matter at hand, the review of
WRDA; and thank also, of course, the Corps, General Van
Antwerp, and the Assistant Secretary.
This is the beginning of an extended review process, but it
will lead to--at least this stage will lead to the next Water
Resources Development Act. Lessons learned will be implemented
in our subsequent bill.
I also ask unanimous consent to include in the record the
statement of the American Shore and Beach Preservation
Association on the subject of this hearing.
Without objection, so ordered.
Mr. Oberstar. Since there are no other Members to pose
questions, the hearing is adjourned.
[Whereupon, at 4:02 p.m., the Committee was adjourned.]
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