A New Direction in Water Resources Development

Robert A. Roe

Congressman Robert A. Roe (D-N.J.) is Chairman of the House of Representatives' Science, Space and Technology Committee. Congressman Roe was first elected to the House of Representatives in 1969. He served as Chairman of the Subcommittee on Water Resources of the Committee on Public Works and Transportation for the 97th through 99th Congresses, which considered the Water Resources Development Act of 1986. Congressman Roe continues to serve as second ranking member of the House Public Works and Transportation Committee and is ranking member of the Water Resources Subcommittee and a member of the Surface Transportation Subcommittee. Congressman Roe serves a Co-Chairman of the National Water Alliance.

[17 ELR 10144]

The Water Resources Development Act of 1986¹ is the most comprehensive water resources development legislation enacted by the Congress in half a century and is the most environmentally sensitive water resources bill ever developed. The law combines all types of water resources projects and establishes a new equitable federal/nonfederal partnership in the development of projects, including local financial contributions where appropriate.

The last water resources development act was signed into law in 1976.² The last traditional omnibus legislation authorizing the construction of Corps of Engineers projects was signed into law in 1970.³ The 1974⁴ and 1976 Water Resources Development Acts consisted primarily of authorizations for advanced engineering and design of projects rather than for their construction. As a result, over this 16-year period a large backlog of proposed water resourcesprojects accumulated. The Water Resources Development Act of 1986 (hereinafter Act) enables the Corps of Engineers program to proceed once again in a responsive and expeditious manner to meet the critical water needs of our nation.

Water's Central Role

Except in times of crisis, water in America is too often taken for granted in our everyday lives. We complacently turn on the tap, and gallons of fresh water magically flow from it. But it is far from magic. The life-sustaining water that flows from the tap is the result of a vast infrastructure of private and public facilities that are constructed, operated, and maintained in order to assure adequate supplies of water — adequate in quality as well as quantity — to support our nation's economic vitality and, indeed, to make possible life itself.

While the most visible use of water for most of us is our personal household use, it is important to remember that there are many other competing water uses, each of which contributes significantly to the economic dynamics of the nation and to the quality of life of all our citizens. For example, we must continue to provide adequate supplies of fresh water for food production and other vital industries. We must continue to provide inland, general-cargo, and deep-draft navigation channels and modern ports to facilitate the commerce that has become the lifeblood of our vast agricultural and manufacturing regions. We must also preserve adequate instream flows and preserve the general availability of clean water in our lakes, estuaries, and wetlands to assure the preservation and enhancement of adequate fish and wildlife habitat and protection of the ecosystem, as a whole.

Water resources problems are not new; problems relating to the use, overuse, and abuse of water have existed since the inception of civilization, particularly in arid regions. However, water resources problems in America are now becoming acute, and changes in public attitudes are beginning to reflect this condition. A growing population competing for a limited amount of water has caused the previously common perception of clean water as an unlimited resource to give way gradually to a more realistic public perception that clean water is no longer unlimited and no longer free.

Continuing to meet the public expectations that follow our high standard of living will not come about through complacency. Complacency and continued inaction only exacerbate growing water problems. Indeed, preventing the realization of what many have described as the coming "water crisis" will require hard work and hard choices — at the federal, state, and local levels — guided by a national water use policy. Nearly every seemingly "simple" water resources problem that arises in America today actually involves a myriad of complex and extensive legal, social, economic, and political implications. However, with sufficient intergovernmental planning and cooperation these problems can be solved in a fair and prudent manner.

The Water Resources Development Act of 1986

The new law recognizes that water resources needs and solutions are all unique. One region may be plagued by droughts and another by floods; and the appropriate solutions to floodingor drought problems in one region may be totally unsuited to another. Another region may have adequate supplies of fresh water and have adequate protection from floods, but have acute transportation problems relating to outdated navigation facilities. Because of its recognition of vast interregional differences in both the abundance and the use of water, and because of its recognition of the primacy of state and local governments in the allocation and management of water resources in many instances, the law has sought, wherever possible, to ensure regional, state, and local participation in the policymaking process.

The Act includes authorization for construction or study of over 270 projects. In addition, the law includes 33 studies, 72 project modifications, and 72 miscellaneous projects. The total cost of the projects contained in the law is $16.5 billion, of which $4.5 billion will be paid by nonfederal interests during construction. An additional $2.5 billion will be repaid to the federal government under [17 ELR 10145] the repayment provision of the law, making the ultimate federal cost $9.5 billion and the ultimate nonfederal cost $7 billion.

The Act includes comprehensive methods for determining the federal and nonfederal share for all types of water resource projects. It is the inclusion of the cost-sharing provisions which made the enactment of the legislation possible. Beginning with the administration of President Jimmy Carter and continuing through the administration of President Ronald Reagan, pressure had been building to require nonfederal interests to pay a much greater share of project costs. The environmental community also advocated increased local financial participation with the goal of eliminating projects of marginal value. Expected beneficiaries of the projects objected to the increased local participation, as would be expected.

The confrontation between the two sides delayed new construction and left our water resources infrastructure in critical need of repair, rehabilitation, and improvement. For example, of the nearly 200 locks in the inland waterway system, the average age is 40 years, and some are approaching 80 years of service. Additionally, today's large cargo carriers require port depths of 55 feet or more. The major United States ports have an average depth of only 45 feet.

Compromise on Cost-Sharing

The need for compromise to end the stalemate was obvious. Early in the 99th Congress, nonfederal interests began to reduce their opposition to increased cost-sharing and user fees. I refer to increased cost-sharing since it should be noted that nonfederal interests have long provided a portion of total project costs for the vast majority of project purposes. Nonfederal interests were generally responsible for providing all lands, easements, rights-of-way, and dredged material disposal areas necessary for the project (averaging 20 percent of costs for flood control projects, and 14 percent of costs for ports), and in many instances participated in the cost of construction as well.

It was also early in the 99th Congress that the Reagan Administration receded from its insistence that nonfederal interests be responsible for most, if not all, of construction costs. With the window of compromise being open, and pressure to begin authorizing new construction projects growing (in part due to a growing concern that federal deficits would limit the program), the outlines of a final agreement began to take shape.

During consideration of the 1985 Supplemental Appropriations Act,⁵ funding was included for the initiation of construction of a number of new Corps of Engineers projects. The final version of the legislation included funding for 41 badly needed new projects, but the initiation of construction was contingent upon the enactment of cost-sharing legislation.

Water Resources legislation⁶ was pending before the House Committee on Public Works and Transportation when the 1985 Supplemental Appropriations Bill was passed. In an attempt to resolve the cost-sharing issue, discussions were held with the Director of the Office of Management and Budget, and a package of cost-sharing requirements was added to the legislation at mark-up in the Water Resources Subcommittee. The cost-sharing requirements were included in the bill as reported by the full Committee and as approved by the House in November 1985.

When the Senate approved their water resources legislation in March 1986, it included the cost-sharing requirements advocated by the Administration. After several months of conference negotiations, a compromise bill was developed that included broad cost-sharing requirements that were acceptable to the Congress and the Administration, and H.R. 6 became Public Law 99-662.

Wide Impact: Environmental Sensitivity

Although it was the compromise on cost-sharing that broke the stalemate and allowed the water resources legislation to become law, the impact of Public Law 99-662 on water resources development is much broader. Many important program reforms were also included in the law to make the Corps of Engineers program more sensitive and responsive to our nation's water resources needs.

Corps of Engineers water resources projects have long been criticized for causing excess environmental damage. By their very nature, many Corps of Engineers projects disturb and alter the surrounding environment. Dredging projects disturb benthic organisms and flood control projects can alter wetlands. Several provisions included in the law are intended to alleviate this situation. Also, in the authorizing language for the projects themselves, our Committee frequently included requirements for environmental protection beyond that recommended by the Corps of Engineers. I will first discuss some of the broader, program-related provisions, and then examples of the more specific environmental protections included in the law for specific projects.

Section 906 of the new law requires that for any project on which construction has not commenced, and which will require the mitigation of fish and wildlife losses, the mitigation (including acquisition of lands) must be undertaken before construction of the project commences, or concurrently with land acquisition, whichever the Secretary of the Army determines is appropriate. This requirement forces the Secretary to address the mitigation requirements of the project as it is initiated. It avoids the possibility of budgetary constraints that may arise at the end of project construction forcing a compromise on originally contemplated mitigation measures. It is also designed to minimize the adverse effect of project construction on existing fish and wildlife at the project site. By requiring fish and wildlife mitigation to be addressed at the beginning of the construction process, losses during that process can hopefully be minimized.

Section 906 of Public Law 99-662 also authorizes the Corps of Engineers to mitigate damages to fish and wildlife resulting from a project whether completed, under construction, or to be constructed. Any such mitigation measures must be in consultation with appropriate federal and nonfederal agencies. The authority to conduct these mitigation measures is restricted in the use of condemnation for completed projects and in acquiring water or interests in water. To implement this section, the Secretary may obligate up to $30 million in any fiscal year. For any [17 ELR 10146] one project, not more than the greater of $7 million or 10 percent of project cost may be applied. This new authority allows the Corps to address fish and wildlife mitigation needs without the necessity of obtaining specific congressional authorization, thereby increasing the ability of the Corps of Engineers to respond to those needs. Measures over the limits are not prohibited, but congressional authorization is required.

In an effort to prevent the occurrence of fish and wildlife losses and assure that mitigation plans are provided, § 906 also requires the Corps of Engineers to include in any proposal for the authorization of a project, either a recommendation with a specific plan to mitigate fish and wildlife losses created by the project, or a determination that the project will have negligible adverse effects on fish and wildlife. Furthermore, since our bottomland hardwood forests have been disappearing at an alarming rate, the law specifically requires that impacts to these forests must be mitigated in-kind to the extent possible.

Protecting Environmental Benefits

This new authority and emphasis on mitigating environmental losses could be undercut if recommendations against taking mitigation measures were made because the costs are determined to exceed the benefits. We therefore included a section in the law that deems the benefits attributable to measures for the purpose of environmental quality to be at least equal to the costs of the measures undertaken. This provision is written broadly to include not only mitigation measures, but to specifically include improvement of the environment and fish and wildlife enhancement. Although the present Administration is sometimes disinclined to budget and recommend projects for improvement of environmental quality, the Congress can, and will, take whatever steps are necessary to assure that environmental quality and water resources development projects harmoniously co-exist.

Environmental Protection and Mitigation Fund

Another of the program reforms contained in Public Law 99-662 is the creation of an Environmental Protection and Mitigation Fund at a level of $35 million. This Fund makes available funds, in advance of construction of an authorized water resources project, for conducting authorized measures to ensure that project-created losses to fish and wildlife production and habitat will be mitigated. The Secretary of the Army, therefore, will not be dependent upon specific legislation appropriating monies for fish and wildlife mitigation measures prior to actual construction.

The need for the Fund arose because it is not uncommon for a number of years to elapse between authorization of a project by Congress and initiation of actual construction of that project. During those years, lands and environmental elements that have been identified as being necessary to mitigate losses to fish and wildlife production and habitat and other environmental values, may become unavailable for a number of reasons, such as development in the area, clearing of woodlands, and the like. This section provides a mechanism for preserving necessary lands and undertaking necessary measures to ensure that when the project is built, the necessary mitigation and environmental features will be able to be included.

The Fund will operate as a revolving fund. That is, any money spent from the Fund will have to be repaid to the Fund. Repayment comes from the first appropriations made for construction, including planning and designing, of the project.

Environmental Protection Project-by-Project

As valuable to environmental protection as the broad program reforms are, the new law is particularly strong in the consideration of the environmental aspects of particular projects. The Water Resources Subcommittee worked tirelessly to accommodate the views of all interested parties prior to developing the authorizing legislation. Testimony was received from nearly 500 witnesses during 34 days of hearings. The result is the well-balanced legislation that was enacted.

A good example of the results of such painstaking detail is the authorization of the Mobile Harbor project. Because of concerns expressed about disposing of dredged material in the Brookley disposal area in Mobile Bay, the authorization provides that for reasons of environmental quality, the dredged material from the project is to be disposed of in open water in the Gulf of Mexico. This open water dumping must be in compliance with federal law, which would include the protections and requirements of the Ocean Dumping Act.⁷ The authorization also provides that no dredged or fill material may be disposed of in the Brookley disposal area. This prohibition will ensure that the environmental benefits of requiring that the project material be disposed of in the Gulf of Mexico will not be lost by a subsequent dumping.

These provisions for Mobile Harbor were not included in the recommended report of the Chief of Engineers for the Corps of Engineers. But, because of the detail and concern exhibited by the Subcommittee in forming the legislation, environmental protections such as these and those contained in scores of other project authorizations were included to modify the recommended plans and assure a greater sensitivity to the environmental impacts of water resources projects.

Perhaps the best example of a sound environmental approach to a water resources project is the compromise contained in the legislation for the Cross Florida Barge Canal.

The Cross Florida Barge Canal Project was authorized by Congress in 1942.⁸ The project would have provided a barge waterway route between the St. Johns River at Palatka and the Gulf of Mexico at Yankeetown, a distance of about 110 miles. The project would have included three dams, five locks, and a channel 12 feet deep and 150 feet wide. Construction of the project was started in February 1964 and terminated by President Nixon in January 1971, after about 25 miles of channel, three of the five locks, the three dams, and four bridges were completed. The President ordered that further construction be halted to prevent potential serious environmental damage and directed that work in progress be terminated in an orderly manner to leave the affected areas in a safe condition. Approximately $74 million has been invested in completed works and lands for the project.

The Act's compromise accommodated the interests of those who would seek to have the project completed and [17 ELR 10147] those who would have the existing work destroyed. Out of the publicly held lands for the project, which stretch across most of central Florida, is created the Cross Florida National Conservation Area for the benefit and enjoyment of future generations. The portions of the project that are completed may continue to be used for navigation as well as recreation, for fish and wildlife enhancement, and for the benefit of the economy of the region. For the uncompleted portion of the project, a comprehensive management plan is to be developed by the Corps of Engineers in consultation with the U.S. Forest Service, the U.S. Fish and Wildlife Service, and Florida. Furthermore, the reservoir known as Lake Oklawaha is specifically preserved to protect the wildlife and recreation that it supports.

This legislative compromise has been praised by all affected parties — commercial interests currently using the project may continue to enjoy the beauty of central Florida, and the public investment is protected and preserved for future generations.

Conclusion

The 99th Congress is rightfully proud of its work in developing Public Law 99-662. It is the most comprehensive, yet environmentally sensitive water resources development law ever enacted. It sets our nation on a new course of water resources development policy with new vigor and dynamism and will assure the continued ability of our nation to manage, use, and enjoy our vast water resources.

1. Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082.

2. Water Resources Development Act of 1976, Pub. L. No. 94-587, 90 Stat. 2917.

3. River and Harbor Act of 1970, Pub. L. No. 91-611, 84 Stat. 1818.

4. Water Resources Development Act of 1974, Pub. L. No. 93-251, 88 Stat. 12.

5. 1985 Supplemental Appropriations Act, Pub. L. No. 99-88, 99 Stat. 293.

6. H.R. 6, 99th Cong., 1st Sess. (1985).

7. 33 U.S.C. §§ 1401-1444.

8. Act of July 23, 1942, ch. 675, 56 Stat. 703.