Statement of U.S. Senator Russ Feingold On Opposing the Water Resources Development Act Conference Report


Date: July 30, 2007
Location: Washington, DC

Statement of U.S. Senator Russ Feingold On Opposing the Water Resources Development Act Conference Report

"The version of the Water Resources Development Act I've seen does not do nearly enough to change the way the Corps of Engineers does business, and I won't support it. After a decade of government and independent reports about problems with the Corps, and the tragic failures of New Orleans' levees during Hurricane Katrina, the American people deserve meaningful reforms. Unfortunately, the conference report expected to be finalized as early as today includes only weak reforms. The Senate twice voted in support of strong reform language, but this conference report has been stripped of important safeguards to ensure accountability and prevent the Corps from manipulating the process. We have compromised enough over the years. We can no longer afford a system that favors wasteful projects over the needs of the American people."

Fact Sheet by U.S. Senator Russ Feingold On the Water Resources Development Act

Senator Russ Feingold has announced his opposition to the Water Resources Development Act because of changes made to the bill's independent review provision during negotiations between the House and the Senate. The Senate version of the bill included a strong provision authored by Feingold to help ensure future Corps projects do not waste taxpayer money or endanger public safety. This provision required review of Corps of Engineers project studies by an independent panel of experts for: projects estimated to cost more than $40 million; projects requested by a governor of an affected state; projects that the head of a federal agency has determined may have a significant adverse impact; or projects that the Secretary of the Army has found to be controversial. The Feingold provision also established an outside safety assurance review for critical flood damage reduction projects to better ensure public safety.

Unfortunately, the independent review provision included in the conference report was significantly weakened in several respects:

Under the conference report, the "independent" review is not independent. The review process is housed within the Corps rather than outside the agency as required by the Senate bill. The Corps' Chief of Engineers is given significant authority to decide the timing of review, the projects to be reviewed, and whether to implement a review panel's recommendations.

Seven years after enactment, the conference report would terminate the requirement for projects to be peer reviewed. It is reasonable for Congress to continually evaluate how the program is working, but to presume there is not a long-term need for peer review and set a sunset date is irresponsible. Independent review should be permanently integrated into the Corps' planning process. The burden should be on the Corps to demonstrate why it does not need a congressionally mandated review process, rather than on Congress to wage another battle to extend the requirement in seven years.

The Senate's provision established mandatory review when clear triggers are met. However, the conference report gives the Corps fairly broad discretion to decide what projects get reviewed. It expands the House's loophole allowing the Corps to exempt projects that exceed the "mandatory" $45 million cost trigger. The Corps can exempt Continuing Authority Program projects, certain rehabilitation projects, and projects that it determines are not controversial and only require an Environmental Assessment rather than a full-blown Environmental Impact Statement. A project's economic justification, engineering analysis, and formulation of project alternatives are critical elements that should be looked at for all major projects, not just those with significant environmental impacts.

Though the conference report allows the Corps to exempt projects from review, it does not give the Corps equal authority to include projects. The bill includes restrictive language that prevents the Corps from reviewing studies that were initiated more than two years ago or that were initiated in the last two years but already have an "array of alternatives" identified, which occurs early in the process. The Senate language would have allowed the Corps to initiate a review for any project that does not have a draft feasibility report.

The conference report eliminated a key provision in the Senate bill that ensures accountability. Specifically, the provision would have required that if a project ends up in court, the same weight is given to the panel and the Corps' opinion if the Corps cannot provide a good explanation for why it ignored the panel's recommendations. By dropping this accountability requirement, the conference report allows the Corps to ignore the panel's recommendations, as the Corps is currently doing with its own internal review process.

The Senate bill would have made a project review mandatory if requested by a federal agency with the authority to review Corps projects. Instead, the conference report gives the Corps the authority to reject the request, and requires the federal agency to appeal the decision to the Council on Environmental Quality. The Corps should be required to conduct the review made by the head of another agency that is charged with reviewing Corps projects or, at a minimum, to justify to CEQ why it wants to deny such a request.