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2 U.S. Federal Water Project Planning, Authorization, and Appropriations The standard process for federal water resources project authorizations since 1974 has been via federal Water Resources Development Acts (or WRDAs). The U.S. Congress has passed ten Water Resources Development Acts, beginning with the first in 1974 (see Table 2-1). Water Resources Development Acts are used by the U.S. Congress to authorize the Corps to per- form a wide range of activities, starting with the authority to study the feasibility of a given water resources project, then on to a detailed study of the options and costs for the project if it meet the test of benefit/cost and federal interest in the feasibility study. If those studies continue to meet the required criteria, a subsequent WRDA may authorize construction. Water projects included in WRDAs include those for flood risk management, navigation, recreation, infrastructure maintenance and repairs, and ecological restoration. The WRDA process is used primarily for authorization of new water projects, with project appropriations decisions generally addressed in the federal budget process. Authorizations represent congressional approval for a project to begin feasibility studies, planning, and construction. Appropriations are allotments of federal resources for actual project construction. Pro- ject authorization does not necessarily lead to project appropriations; there are many authorized water projects that are awaiting appropriations. Authorized projects that have not received ap- propriations often are referred to as a "backlog." The current backlog of authorized, but unfund- ed, projects is estimated as needing approximately $60 billion to complete (NRC, 2011) 1. In some instances, small amounts of money may be authorized through WRDAs for planning of specific projects. Congress also sometimes includes appropriations directly in WRDA bills for specific projects, such as post-Katrina construction on the New Orleans hurricane protection sys- tem. Only infrequently are funds for maintenance and upgrades of existing infrastructure includ- ed in WRDAs. National water management needs increasingly are for the operations, maintenance, and rehabilitation (OMR) of existing projects, with few new water resources infrastructure project starts (NRC, 2011). A continued strong emphasis on the WRDA process may affect the Corps' 1 There is no similar, generally accepted figure for a backlog of deferred OMR. Those estimates would entail diverse maintenance and rehabilitation costs and be subjected to much more judgment and expert opinion. There thus is no single credible estimate of deferred OMR costs for all Corps water infrastructure. 14 P R E P U B L I C A T I O N C O P Y
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Federal Water Project Planning, Authorization, and Appropriations 15 Table 2-1 History of U.S. Water Resources Development Acts Date Enacted Public Law Other Acts Included number March 7, 1974 93-251 Streambank Erosion Control Evaluation and Demonstration Act; River Basin Monetary Authorization Act October 22, 1976 94-587 Lake Ontario Protection Act; Alaska Hydroelectric Power Development Act November 17, 1986 99-662 Harbor Development and Navigation Improvement Act Upper Mississippi River System Management Act Dam Safety Act November 17, 1988 100-676 November 12, 1990 101-640 October 31, 1992 102-580 National Contaminated Sediment Management and Assessment Act October 12, 1996 104-303 August 17, 1999 106-53 December 11, 2000 106-541 Missouri River Protection and Improvement Act Charles M. Russell National Wildlife Refuge Enhancement Act Missouri River Restoration Act November 8, 2007 110-114 ability to cope with the stresses of maintaining existing water infrastructure in an era of declining federal funding available for new construction and major rehabilitation. This chapter reviews the WRDA process and how it might affect both the Congress and the Corps in managing Corps wa- ter resources infrastructure and related OMR challenges. CORPS OF ENGINEERS AUTHORITIES The Corps of Engineers builds infrastructure for military and civilian purposes. The Corps' civilian, or civil works, arm derives its authority from individual congressional statutes, and from plans approved by the U.S. Congress and the President that authorize planning, con- struction, and operations of individual projects. The Corps of Engineers carries out projects and activities specified by the U.S. Congress, and that are approved in the federal budget passed by the Congress and signed by the President. The executive branch of the U.S. federal government plays an important role in oversight of the Corps of Engineers, especially through the Office of Management and Budget (OMB) and fiscal guidelines recommended by the President. These two branches of government play important roles in providing guidance and direction to the Corps of Engineers, and any lasting solutions to national water challenges requires some degree of collaboration between them. Unlike federal agencies that have broad authorizations, such as the Bureau of Reclamation through the Reclamation Act of 1902, and the National Park Service through the Organic Act of 1916, the Corps has relied on specific legislation to authorize specific projects. For example, the Corps was given broad authority in the 1936 and 1944 Flood Control Acts to investigate possible flood control projects. However, the Chief of Engineers is required to seek separate congressional authorization for each specific project by submitting a feasibility report (except in the case of some small projects). A recent example of limits of Corps authority PREPUBLICATION COPY
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16 Corps of Engineers Water Resources Infrastructure: Deterioration, Investment, or Divestment? and the level of congressional and judicial involvement in Corps decision-making are illustrated in the case of water allocation in Lake Lanier, Georgia (see Box 2-1). Congress changed its approach to water project funding in 1974 with passage of the first Water Resources Development Act. Prior to 1974, Corps of Engineers projects were authorized in federal Rivers and Harbors Acts, and in Flood Control Acts. Since 1974, the Corps has relied on WRDA bills to provide authorizations for specific projects. In the context of this report, it is important to note that the WRDA process and resultant legislation provides no prioritization for construction of new projects for the nation as a whole, nor does it identify project maintenance and rehabilitation priorities. SHIFTING EMPHASIS OF CORPS ACTIVITIES Throughout its lengthy history, the Corps of Engineers has had to operate among compet- ing visions of water resource development. Some of the agency's pressing current challenges and limited resources for important infrastructure OMR needs, often stem from a gap between a vision of comprehensive river basin management, and political realities regarding individual pro- ject construction. From administrations of Theodore Roosevelt to Lyndon Johnson, many water policy experts have promoted the idea of comprehensive, rational federal development of river basins through multiple purpose projects (see White, 1957; United Nations, 1970). Although many local and state interests supported federal dam, lock, levee and canal construction, efforts BOX 2-1 EXISTING CORPS AUTHORITIES AND CHANGING WATER DEMAND: THE CASE OF LAKE LANIER AND ATLANTA Lake Lanier is a U.S. Army Corps of Engineers reservoir on the Chattahootchee River in north- central Georgia. It is impounded by Buford Dam and its river discharge is used by numerous downstream users, including the Atlanta metropolitan area and, farther downstream, recreational users and environ- mental purposes in Apalachicola Bay. Lake Lanier feeds the Apalachicola- Chatahoochee-Flint (ACF) rivers basin shared by Alabama, Georgia, and Florida. Disagreements among the states over the use of these waters surfaced in the 1990s, and after years of trying, the three states have been unable to agree on an apportionment. In the early 2000s, At- lanta was in the midst of a multi-year drought, and the federal government brokered a settlement among the Corps of Engineers, Georgia, water suppliers, and several downstream utilities to shift 248,858 acre- feet of water from Lake Lanier to supply the Atlanta metro area. Higher water prices would be used to compensate the utilities for lost generation capacity. Hydropower users challenged the reallocation and a 2008 court decision [Southeastern Federal Power Customers v. Geren, 515 F.3d 1316 (D.C. Cir. 2008)], held that the settlement violated the Water Supply Act, because major reservoir operational changes require congressional approval. The realloca- tion constituted over 22 percent of the reservoir's storage capacity, which would be the second largest Corps reallocation taken without Congressional approval, and might increase to 35 percent in light of fu- ture growth of the region. This case was not the last word, as the Eleventh Circuit read the legislation more liberally and held that water supply was an authorized purpose of Lake Lanier and that municipal supply could not be subordinated to hydropower generation; it ordered the U.S. Army Corps of Engineers to consider Georgia's request for an allocation from the lake after it reexamined its authority to operate the reservoir in light of the Corps full operational authority [Tri-State Water Litigation, 644 F.3rd 1160 (11th Cir. 2011)]. PREPUBLICATION COPY
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Federal Water Project Planning, Authorization, and Appropriations 17 to create independent, executive authorities to develop river basins generally were resisted by both Congress and the states. Origins of the river basin planning concept in the United States date back to observations and ideas of John Wesley Powell and his studies in the western U.S., as well as President Theo- dore Roosevelt, who, when transmitting the Inland Waterways Commission preliminary report of 1908 stated "Each river system from its headwaters in the forest to its mouth on the coast, is a unit and should be treated as such" (White, 1957). The concept of integrating water develop- ment plans and projects across a river system was brought to focus in the great Mississippi River flood of 1927. The flood brought to light some limitations of the Corps of Engineers' efforts to control floods and maintain navigation channels on the mainstem Mississippi River without planning works for the tributaries. Following the floods, Congress authorized the Corps to con- duct multiple-purpose river basin development planning studies. Described in House Document no. 308, these "308" studies became the impetus for construction of many dams and levees in the 1930s, and again following World War II. Because President Franklin Roosevelt supported large-scale dam building, and because Congress was willing to fund projects, the Corps operated on a river basin scale for rivers such as the Allegheny and Monongahela, the Columbia, and the Missouri. The basin program that commanded the most attention in this era was for the Tennes- see River. Development of the Tennessee Valley region, via the Tennessee Valley Authority es- tablished in 1933, was promoted as a model of unified river basin development, both domestical- ly and abroad. President Roosevelt planned to apply the concept in the Missouri River basin, but the states and Congress blocked efforts to create a similar, federal authority for the Missouri in the 1944 Flood Control Act and the "Pick Sloan" legislation (Ferrell, 1993; NRC, 2002). Fol- lowing the New Deal era, federal support for large dam construction began to wane in the 1950s. The Eisenhower Administration (1952-1960) followed a "no-new starts" policy, and stressed in- creased local responsibilities for smaller projects. A new era of dam building was initiated by the Kennedy administration, and new Corps dams were built in the 1960s in the southeastern and midwestern U.S. The Johnson Administra- tion placed a high priority on river basin planning, and the Water Resources Planning Act of 1965 created seven river basin commissions coordinated by a federal Water Resources Council (WRC). However, since Congress was funding fewer dams, levees, and canals, these commis- sions had no clearly defined role, as noted by the National Water Commission (NWC), which operated between 1968 and 1973 (NWC, 1973). The NWC also looked ahead to the changing roles of the Corps of Engineers. The NWC 1973 report identified many of the problems with trying to adapt a new project construction model to changing water demands the Corps was fac- ing. For example, the commission noted that "The Corps . . . is not likely to exist as an agency specializing in the construction of great engineering works; it seems virtually certain that in the future the United States will need relatively few major navigation, flood control, or water pro- jects" (NWC, 1973). Since the 1973 NWC report, there have been few efforts to revive the idea of strong fed- eral water planning and development institutions. Large-scale water resources planning for both the Bureau of Reclamation and the Corps effectively ended in late 1960s. For example, the 1968 Colorado River Basin Project Act authorized both the Central Arizona Project and effectively took large-scale projects, such as inter-basin transfers, off the Colorado River basin water re- sources agenda. Instead, beginning in 1974, larger scale river basin development acts (or general mission acts) such as the Flood Control Acts of 1936 and 1944 were replaced with Water Re- source Development Acts that contained many locally-focused projects. PREPUBLICATION COPY
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18 Corps of Engineers Water Resources Infrastructure: Deterioration, Investment, or Divestment? THE CORPS OF ENGINEERS AND THE WRDA PROCESS Communities and local and state governments with water resources infrastructure needs often engage simultaneously with congressional representatives and the Corps to discuss poten- tial projects. The level of Corps engagement in these preliminary discussions typically entails an advisory role to answer technical questions about potential projects. Potential projects are initiated with a study authority, typically as part of a WRDA. This authority allows the Corps to determine whether the project warrants federal investment under the benefit-cost criteria established in the 1983 Principles and Guidelines (see Box 2-2). This study then is conveyed to Congress through a Chief of Engineers Report with either favorable or unfavorable recommendations. Results of these evaluations are submitted to the executive office Office of Management and Budget, which reviews the Corps evaluations. The OMB applies its own criteria that are consistent with executive branch objectives, including a benefit-cost test, to evaluate projects. Selected projects, reflecting results of the Corps and OMB evaluations (see Box 2-2), then are submitted to the relevant Congressional appropriations committees as part of the President's budget for a given fiscal year. Congress then decides whether to appropriate funds to construct specific projects (for further details on the authorization and appropriation process, see Carter and Hughes, 2010). The Water Resources Development Act process is oriented to individual project authori- zation, with limited considerations regarding how individual projects fit into larger, basin-wide BOX 2-2 FEDERAL PRINCIPLES AND GUIDELINES FOR WATER RESOURCES PROJECT PLANNING The federal document, Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, was issued in 1983 by the federal Water Resources Council (WRC). That document provided a series of steps for the planning of new projects for four feder- al agencies: the Corps of Engineers, the Bureau of Reclamation, the Soil Conservation Service (today the Natural Resources Conservation Service), and the Tennessee Valley Authority. These "Principles and Guidelines," (or P&G) act as a screening process for new project plans, and are used to determine if planning for water project proposals meet a benefit-cost test, and that ex- pected project benefits will exceed costs. The P&G, and its predecessor Principles and Standards (P&S) document, were designed to consider not just economic benefits, but also environmental, social, and oth- er factors. Since the P&G document was issued in 1983, the national landscape of water project planning has changed markedly. Cost-sharing requirements for federal projects have changed, respective roles of the federal government and local beneficiaries, sponsors, the number and influence of stakeholders have changed, and the extent of new water project construction has been reduced. Further, the P&G docu- ment never was intended to consider and compare multiple water project proposals, or existing projects, and set relative priorities or rankings. These changing circumstances prompted many entities and individ- uals, including National Research Council committees (e.g., NRC, 2004b) to call for the P&G document to be revised and updated. In 2007, the U.S. Congress mandated the Army Corps of Engineers to review and update the P&G document. That mission was eventually assumed by the White House Council on Environmental th Quality. The CEQ team issued a draft revision in 2009. More recently, the 111 U.S. Congress, elected in 2010, prohibited the Corps (and effectively the administration) from spending further funds to imple- ment the 2007 WRDA congressional instructions to revise the P&G. PREPUBLICATION COPY
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Federal Water Project Planning, Authorization, and Appropriations 19 plans or operations. 2 This focus on local projects may have been strengthened by passage of the 1986 WRDA, which created a variety of cost-sharing formulas for new projects between the fed- eral government and its local partners. An earlier National Research Council committee that considered the effects of the 1986 WRDA on Corps planning and projects concluded (NRC, 1999): A general result of WRDA '86 was to increase the funding responsibilities of lo- cal sponsors. With these greater financial requirements, local sponsors requested and have received a greater voice in project planning and design considerations... The emphasis on local projects and cosponsors may be pulling the Corps in oppo- site directions, however. On one hand, WRDA '86 mandates the Corps to work closely with local cosponsors, effectively providing a service to local communi- ties. On the other hand, the Corps is charged to promote the national interest in its water planning activities. Promoting this national interest may require integrating plans and programs throughout a large river basin system (especially an interstate basin), which may be incompatible with providing specific water projects tailored to local--not basinwide--interests. Appropriated funding in any year for a particular project often is not for the entire project amount. Projects authorized in WRDA bills that do not receive timely appropriations for con- struction can be kept alive for long periods of time, as local governments and their congressional representatives can ensure that small amounts of money are appropriated for continued planning. This practice may not lend itself to efficient and systematic water resources planning. For exam- ple, the Congressional Research Service (CRS) has observed that, "appropriated funds for an in- dividual study or project . . . [may be] insufficient to permit the optimum programming of work by the Corps" (Carter and Hughes, 2006). This process of piecemeal funding, below total project costs, has become increasingly common procedure, resulting in long project schedules, ineffi- ciency in project delivery, and higher project costs (NRC, 2011). Box 2-3 provides an example of how delays can affect the appropriations process and result in increased costs. Projects authorized in a WRDA bill represent a wide spectrum of small to large projects, with no system for prioritizing among them. There is no formal, federal interagency task force, nor any systematic process, to determine national water resources priorities. Through the legisla- tive process, Congress selects projects for appropriation and decides upon proper levels of ap- propriation. Consequently, the process of individual project appropriations represents a de facto process for national water project prioritization. Although WRDAs have a strong emphasis on new project authorization, OMR projects also can be authorized within them. For example, Table 2-2 lists some OMR projects authorized in WRDA 2007. Unlike the systematic federal-state-local cooperation on highway transportation projects, which involves a system of prioritization for determining federal support in a project (NCHRP, 2007), no similar process for water projects exists (NAPA, 2007). 2 The U.S. Congress still occasionally mandates basin-wide activities. For example, In P.L. 111-11, Subtitle F ("Se- cure Water"), Congress in 2009 directed the Secretary of the Interior to assess risks to water supply of each major Reclamation river basin, analyze the extent to which changes in water supply will impact basin resources, and con- sider and develop strategies to mitigate impacts of water supply changes. "Major reclamation river basins" in this case are defined to include the Columbia, Colorado, Missouri, and Sacramento/San Joaquin river basins. PREPUBLICATION COPY
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20 Corps of Engineers Water Resources Infrastructure: Deterioration, Investment, or Divestment? BOX 2-3 PROJECT AUTHORIZATION AND EXTENDED APPROPRIATION: LOWER MONONGAHELA RIVER LOCKS AND DAMS 2, 3, AND 4 The Monongahela River, which flows from West Virginia to Pittsburgh where it joins the Allegheny River to form the Ohio River, was one of the nation's first inland waterways to have a lock and dam infra- structure installed to aid river navigation. Construction of the first locks and dams was initiated in 1837 by the Commonwealth of Pennsylvania. The federal government also constructed locks and dams in the Monongahela, and in the late nineteenth century the federal government took over the entire system. The present navigation system comprises nine locks and dams and was constructed by the Corps of En- gineers beginning in 1902. Locks and Dams 2, 3, and 4 in the Lower Monongahela River, just south of Pittsburgh, are the three oldest currently operating navigation facilities on the river and experience the largest volume of commercial traffic for the river. The Water Resources Development Act of 1992 authorized a major rehabilitation and reconstruc- tion project involving Locks and Dams 2, 3, and 4. The project included replacement of the fixed crest dam at Locks and Dam 2 (Braddock) with a gated dam, removal of Locks and Dam 3 (Elizabeth), and construction of two larger locks at Locks and Dam 4 (Charleroi). For Locks and Dam 2, original construc- tion was completed in 1906 and major rehabilitation was performed in 1953. Original construction and major rehabilitation completion dates for Locks and Dam 3 were 1907 and 1980, and for Locks and Dam 4 were 1932 and 1967. Detailed design and construction planning for the Lower Monongahela project completed in 1995 yielded a cost estimate of $750 million and an expected completion date of 2004, both of which assumed higher levels of annual project funding than were subsequently appropriated. The replacement of the Braddock Dam at Locks and Dam 2 (which employed an innovative in-the-wet construction technique) was completed in 2004. Work on the Charleroi Locks at Locks and Dam 4 was initiated in 2002. Based on expected levels of annual funding, the Charleroi Locks are scheduled to be completed in 2021. Alt- hough the Lower Monongahela project received $84 million in stimulus funding from the American Re- covery and Reinvestment Act in 2009, this was a modest amount relative to the total project scope and the completion date was not affected substantially. When one new operational lock chamber is complet- ed at the Charleroi Locks, work on removal of Locks and Dam 3 at Elizabeth will begin. The current esti- mate for project completion is 2024 and the current total cost estimate is $1.5 billion. The project is cost shared 50-50 with the Inland Waterways Trust Fund and the General Treasury. The current projected $1.5 billion cost and 2024 completion date for the Lower Monongahela pro- ject reflect estimates of future congressional funding that are uncertain. It has been estimated that if Congress provides only minimum annual funding, the project will extend into the 2030s and the cost will increase to at least $1.7 billion (Boselovic, 2012a). WRDA AND WATER RESOURCES INFRASTRUCTURE OPERATIONS, MAINTENANCE, AND REHABILITATION The focus on new water project construction was part of an earlier era of national expan- sion and settlement. At that time, the nation was seeking a greater degree of water control or "development" for commercial navigation, floodplain settlement, and hydroelectric power de- velopment. Over time, however, the need for individual project authorization, now embodied in WRDA legislation, and appropriation, became less relevant. Today, the U.S. is not expanding into undeveloped territory; rather, an increasingly important issue is the OMR of an extensive, existing national water infrastructure, much of which was built and is operated by the Corps of Engineers. As shown in Figure 2-1, Corps operations and maintenance budgets have increased, PREPUBLICATION COPY
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Federal Water Project Planning, Authorization, and Appropriations 21 Table 2-2. Examples of Operation, Maintenance and Rehabilitation Projects and Studies in the Water Resources Development Act of 2007 Section Title Description 3057 Little Wood River, Gooding, Idaho rehabilitate the Gooding Channel project for the purposes of flood control and ecosystem restoration 3061 Chicago Sanitary and Ship Canal dispersal upgrade and make permanent Barrier I; barriers project, Illinois construct Barrier II; operate and maintain Barrier I and Barrier II as a system to optimize effective- ness 3071 Hickman Bluff stabilization, Kentucky repair and restore the Hickman Bluff project 3084 West bank of the Mississippi River (East of operation, maintenance, rehabilitation, repair, Harvey Canal), Louisiana and replacement 3156 Dam remediation, Vermont remediation of a number of dams in Vermont 3178 Upper Ohio River and Tributaries naviga- establish a pilot program to evaluate new tech- tion system new technology pilot program nologies applicable to the Upper Ohio River and Tributaries navigation system. 4035 Herbert Hoover Dike supplemental major Study to evaluate existing conditions at the Her- rehabilitation report, Florida bert Hoover Dike system; identification of addi- tional risks associated with flood events at the system 4096 Elliott Bay Seawall, Seattle, Washington study for rehabilitation of the Elliott Bay Seawall slightly, while construction budgets have experienced significant decreases (except for specific occasions such as appropriations for post-Katrina construction activities on the New Orleans hur- ricane protection system, and `stimulus' funding in 2008-09). Decreases in construction budgets entail declining resources available for project rehabilitation. Thus, despite modest increases in operations and maintenance funds, the level of federal resources available to the Corps has been inadequate to meet OMR needs and maintain all projects at acceptable levels of performance and efficiency. The U.S. Congress and the executive branch Office of Management and Budget are the de facto national water planners. There is no defined distribution of responsibility be- tween Congress and the Executive Branch, including the Corps and OMB, for national- level prioritization of OMR needs for existing water infrastructure. Further, neither Con- gress nor the administration provides clear guiding principles and concepts that the Corps might use in prioritizing OMR needs and investments. The Water Resources Development Act process has been developed over many decades. Congress is familiar with the process and it has proven useful in authorizing numerous water projects of importance to the nation and its citizens. The process has survived challenges from administrations of both national parties (Frisch and Kelly, 2008). However, because current and future national water priorities are increasingly for water infrastructure maintenance and rehabili- tation, there is a need to reorient some of the strong focus on WRDA toward a greater focus on maintenance, rehabilitation, and even decommissioning of existing infrastructure. PREPUBLICATION COPY
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1 2 FIGURE 2-1 Corps of Engineers Appropriations 1960-2012. Prices adjusted to 2012 dollars. 2009 includes American Recovery and 3 Reinvestment Act. 4 SOURCE: U. S. Army Corps of Engineers. 22 PREPUBLICATION COPY
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Federal Water Project Planning, Authorization, and Appropriations 23 1 The federal Water Resources Development Act process was developed in a previous 2 era of water management during which new water project construction was of high priori- 3 ty. The WRDA is a familiar process to Congress and will continue to be used as a means 4 for authorizing new federal water projects. WRDA was not designed to identify and estab- 5 lish OMR priority actions and investments for existing Corps of Engineers water infra- 6 structure. The process of individual project appropriations thus represents a de facto pro- 7 cess for national water project prioritization. Higher congressional and administration pri- 8 ority on OMR issues for Corps infrastructure will entail some reorientation away from the 9 present strong focus on WRDA. 10 PREPUBLICATION COPY