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Calendar No. 798
106th Congress Report
2d Session 106-408
SMALL WATERSHED REHABILITATION ACT OF 1999
September 12, 2000.--Ordered to be printed
Mr. Lugar, from the Committee on Agriculture, Nutrition, and Forestry,
submitted the following
R E P O R T
[To accompany S. 1762]
The Committee on Agriculture, Nutrition, and Forestry, to
which was referred the bill (S. 1762), to amend the Watershed
Protection and Flood Prevention Act to authorize the Secretary
of Agriculture to provide cost share assistance for the
rehabilitation of structural measures constructed as part of
water resource projects previously funded by the Secretary
under such Act or related laws, having considered the same,
reports favorably thereon and recommends that the bill do pass.
I. Purpose, need and background......................................1
II. Section-by-section analysis.......................................3
III.Legislative history and votes in committee........................6
IV. Regulatory impact statement.......................................6
V. Budgetary impact of the bill......................................6
VI. Changes in existing law...........................................8
I. Purpose, Need and Background
Under current law, the Secretary of Agriculture, acting
through the Natural Resources Conservation Service (NRCS), is
authorized to provide technical and financial assistance to
local organizations in planning and carrying out small
watershed projects for flood protection, agricultural water
management, recreation, municipal and industrial water supply,
and wildlife enhancement. This authorization comes from the
Watershed Protection and Flood Prevention Act of 1954 (PL-566),
the small watershed program.
Beginning in 1948, the U.S. Department of Agriculture began
the construction of floodwater retention dams in upland areas
of small watersheds throughout the country. Eleven pilot
projects were built in as many states under authority of the
Flood Control Act of 1944. PL-566 small watershed projects now
account for a majority of the approximately 10,500 dams that
were constructed since 1948.
Generally, these structures, most earthen dams, were
engineered for a useful lifespan of 50 years. Some dams have
already exceeded that lifespan. Several hundred of these dams
have been in place for more than 45 years and thousands are
older than 30 years. Thus, spillway, slide gates and stems have
deteriorated. Although properly designed and maintained,
sediment basins in many of the impoundments have filled in
providing less water storage, especially during storm events.
Local sponsors are critical to the successful operation of
the small watershed program. They secure land rights and
easements for the projects. NRCS provides the technical and
financial assistance for the actual construction. Once
completed, the local sponsors assume full responsibility for
maintenance and operation of the structures.
Some dams do not meet current state dam safety regulations,
as these regulations have changed over the years. USDA does not
have the authority to rehabilitate these structures, and
sponsoring organizations do not have the funds for the
necessary renovation work.
The Small Watershed Rehabilitation Act of 1999 authorizes a
new 10-year program to rehabilitate aging floodwater retention
projects. $60 million is authorized to be appropriated in each
of the fiscal years 2000 through 2009. In addition, the
Secretary of Agriculture, in cooperation with appropriate state
agencies, is required to use $5 million of the total
appropriation during fiscal years 2000 and 2001 to assess the
rehabilitation needs in states where these dams and small
watershed projects are located. The Secretary may provide 65
percent of the total rehabilitation costs, but may not provide
more than 100 percent of actual construction cost.
The Secretary may require that zoning or development
regulations are in place prior to entering into an agreement
with a local organization so that the rehabilitation work will
not become obsolete by subsequent development in the project
area. The Committee expects that the Secretary will not enter
such agreements if any zoning or development regulatory matters
might jeopardize the effectiveness and full societal benefits
of the investment.
The Secretary, acting through NRCS, may provide required
technical assistance for planning, designing and implementing
the rehabilitation project, but financial assistance may not be
used for operation and maintenance activities. The Committee
intends that the cost of technical assistance provided by NRCS
for planning, designing, and implementing the rehabilitation
project will not be included as a part of the total
rehabilitation cost of the project forpurposes of calculating
the amount of federal funds that may be made available to the eligible
local organization, under the cost share formula. Funding for NRCS
technical assistance is to come from funds appropriated under this Act.
The local organization may apply for this assistance if an
application has also been made to the state agency having
jurisdiction over the project of the Governor of the State. The
Secretary shall request that the state dam safety officer or
equivalent state official be involved in the application
process if state permits or other approval is required.
The Secretary shall establish an approval process that
provides for a proper administration of funds, recognizing that
applications will be made throughout a fiscal year and
approvals may be limited by fund availability. This process
will be in writing and made known to local organizations and
To ensure the wise use of funds, the Committee intends that
rehabilitation projects are conducted in the most cost-
effective means possible considering economic, social, and
environmental aspects of the project. A formal benefit-cost
analysis is not required. However, all benefits and costs (both
numeric and descriptive) should be included in project
documentation and be available for adequate public review prior
to final approval. The Secretary shall maintain a database to
track the benefits of the rehabilitation projects. The database
would serve as a guide for future approval of projects,
including evaluation of the costs and environmental and
conservation benefits. Local organizations must provide to the
Secretary, within 90 days after the project completion, a
status report of the rehabilitation effort.
II. Section-by-Section Analysis
Section 1. Short title
This section provides the legislation may be cited as ``The
Small Watershed Rehabilitation Act of 1999''.
Section 2. Rehabilitation of water resources structures measures
constructed under certain Department of Agriculture Programs
This section amends the Watershed Protection and Flood
Prevention Act (16 U.S.C. 1001 et seq.) by adding a new
Section 14. Rehabilitation of structural measures near, at, or past
their evaluated life expectancy
Subsection (a) Definitions
This subsection defines terms used in the bill.
Paragraph (a)(1). This paragraph defines ``rehabilitation''
to mean all work necessary to extend the service life of the
structural measure, where applicable, and meet applicable
safety and performance standards. This may include prolonging
the useful life of the structure beyond its original life
expectancy, correcting damage or deterioration of the
structure, upgrading the structural measure to meet changed
land use conditions or safety needs within the watershed, or
decommissioning the structure including removal or breaching.
Completion of a project occurs once all structural measures for
each individual dam, regardless of the number of dams covered
by a project, are finished and the project is sufficient to
permit renegotiation of any agreement entered into between the
Secretary and the local organization. The Committee envisions
the project deemed complete when the appropriate safety agency
has given final written approval.
Paragraph (a)(2). This paragraph defines ``covered water
resource project'' to mean works of improvement under PL-566,
PL 78-534, the pilot watershed program authorized in the
Department of Agriculture Appropriation Act of 1954; and the
resource conservation and development program.
Paragraph (a)(3). This paragraph defines ``eligible local
organization'' to mean the local organization or appropriate
state agency responsible for the operation and maintenance of
the structural measures.
Paragraph (a)(4). This paragraph defines ``structural
measure'' as a dam that was constructed as part of a covered
water resource project.
Subsection (b) Cost Share Assistance for Rehabilitation.
Paragraph (b)(1). This paragraph authorizes the Secretary
of Agriculture to provide assistance to cover part of the total
costs of rehabilitating structural measures. These costs may
include land acquisition, easements, and rights-of-way,
rehabilitation project administration, technical assistance,
and contracting and construction costs. The local organization
is responsible for securing all land rights necessary for the
Paragraph (b)(2). This paragraph specifies federal funding
equal to 65 percent of the total rehabilitation costs but not
to exceed 100 percent of the actual construction costs. The
local organization is responsible for the costs of water,
mineral and other resource rights and all required permits. The
Committee recognizes that in addition to the cost outlay for
actual construction operations, other costs will be incurred,
and that the total cost of a rehabilitation project will be
greater than the cost of construction alone. These additional
costs may include, but are not limited to, cost of surveys,
project design, permit acquisition, easements, and
environmental assessments, which may be contributed in kind by
the local authority. The Committee intends that the Federal
contribution is to be 65 percent of the total costs of a
project. However, the Federal funds allocated to a
rehabilitation project shall not be greater than the outlay for
actual construction operations alone.
Paragraph (b)(3). This paragraph authorizes the Secretary,
working with the localorganization, to ensure that the local
organization acquires proper zoning and other development regulations
are secured before entering into a rehabilitation agreement with the
The Committee recognizes that decommissioning and dam
removal may be highly beneficial and cost effective options.
The Committee intends that rehabilitation plans and their
implementation be such that they provide for the attainment of
the full range of societal benefits, including the protection
of environmental resources and conservation.
Subsection (c). This subsection authorizes the Natural
Resources Conservation Service to provide technical assistance
in all phases of the rehabilitation project if the assistance
is requested by the local organization.
Subsection (d). Prohibited Use.
Paragraph (d)(1). This paragraph prohibits assistance from
being used for operation or maintenance activities. These
operating and maintenance activities will remain the
responsibility of the local organization.
Paragraph (d)(2). This paragraph authorizes the Secretary
to renegotiate the original agreement for the project regarding
responsibility for operation and maintenance when the
rehabilitation is completed.
Subsection (e). This subsection requires an appropriate
state agency or the Governor of the state to approve the local
organization's application for assistance for technical and
financial assistance. The Secretary also is required to involve
the state dam safety officer or equivalent state official in
the application process if state permits are required for the
rehabilitation project. The rehabilitation project must meet
standards established by the Secretary, and the NRCS may assist
in preparing applications if the local organization requests.
Subsection (f). This subsection requires the Secretary to
ensure the rehabilitation project is performed in the most
cost-effective manner that accomplishes the objective. Since
the projects are generally required for public health or safety
concerns, no benefit-cost analysis will be conducted and no
benefit-cost analysis greater than one will be required.
Appropriate documentation is required to ensure the wise use of
The Committee recognizes while a strict cost-benefit
analysis is not required, the objectives of each rehabilitation
project must be accomplished in the most cost-effective manner
and that expects full consideration shall be given by the
Secretary, working through the Natural Resources Conservation
Service, to a full range of options that may be equally or more
cost-effective with fewer environmental costs than the
rehabilitation of existing structures. These options include,
but are not limited to, dam decommissioning, dam removal,
wetland restoration, voluntary buy-outs of at-risk structures,
and coordinated watershed planning and management processes.
Further, the Committee expects that the planning and
implementation of each rehabilitation project be conducted with
the full consultation of the local authorities and other
interested parties taking into account local conditions and
concerns. The Committee recognizes the demonstrated utility of
wetland restoration in achieving flood control and
environmental resources and conservation objectives.
Subsection (g). This subsection requires the Secretary to
establish a system for approving rehabilitation requests that
is equitable to all local organizations, recognizing that
requests will be received throughout a fiscal year and will be
approved subject to the availability of funds. The approval
process must be in writing and made known to all eligible
Subsection (h). This subsection authorizes appropriations
of $60 million in each of the fiscal years 2000 through 2009
for technical and financial assistance.
Subsection (i). This subsection requires the use of $5
million in fiscal years 2000 and 2001 of any funds appropriated
for the Secretary to assess the rehabilitation needs in all
states where such small watershed projects are located.
Subsection (j). This subsection requires the Secretary to
track the benefits of the rehabilitation projects and to report
annually to Congress. Local organizations are required to
report to the Secretary on the status of the rehabilitation
project within 90 days after completion of the project.
III. Committee Vote
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following statement is made concerning
the votes of the Committee in its consideration of the bill:
The Committee met in open session on Tuesday, June 20, 2000
and, in the presence of a quorum, ordered that the bill be
favorably reported by a voice vote.
IV. Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the following evaluation is made
concerning the regulatory impact of enacting this legislation:
There are over 10,000 watershed projects in the small
watershed program. This legislation allows sponsors of these
projects to seek financial and technical assistance to
rehabilitate these projects. While local sponsors would have to
contribute 35 percent of the cost of the project, these costs
would be voluntary and rehabilitation should have a positive
economic benefit for individuals, consumers and businesses in
the watershed and surrounding area. There is a possible adverse
impact on the personal privacy of individuals affected by this
legislation where easements and right-of ways may need to be
secured or modified. However, most previous easements for
existing projects have been donated. The Committee does not
anticipate a significant increase in paperwork or reporting
requirements due to this bill.
V. Budgetary Impact of the Bill
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the following letter has been
received from the Congressional Budget Office regarding the
budgetary impact of the bill:
Congressional Budget Office,
Washington, DC, June 27, 2000.
Hon. Richard G. Lugar,
Chairman, Committee on Agriculture, Nutrition, and Forestry,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1762, the Small
Watershed Rehabilitation Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Rachel
Steven M. Lieberman
(For Dan L. Crippen, Director).
S. 1762--Small Watershed Rehabilitation Act of 1999
Summary: Local watershed project sponsors, assisted by the
Natural Resources Conservation Service (NRCS), have constructed
over 10,000 watershed projects under the Small Watershed
Program. S. 1762 would authorize the Secretary of Agriculture,
acting through the NRCS, to assist local project sponsors in
rehabilitating those projects. The bill would authorize the
appropriation of $60 million a year over the 2000-2009 period
for financial and technical assistance to eligible local
organizations for planning, designing, and implementing
watershed rehabilitation projects. S. 1762 would require the
Secretary to assess the need for watershed rehabilitation in
all states in which eligible water projects exist, establish a
process for approving requests for assistance, monitor the
benefits of rehabilitation efforts, and submit an annual report
to the Congress on the status of such efforts.
Based on information from the NRCS, CBO estimates that
implementing S. 1762 would cost $270 million over the 2000-2005
period, assuming appropriation of the amounts specified in the
bill. The bill would not affect direct spending or receipts;
therefore, pay-as-you-go procedures would not apply. S. 1762
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act (UMRA). State and
local governments would probably incur some costs to match the
grants authorized by this bill, but these costs would be
Estimated Cost to the Federal Government: The estimated
budgetary impact of S. 1762 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
By fiscal year, in millions of dollars
2000 2001 2002 2003 2004 2005
SPENDING SUBJECT TO APPROPRIATION
Authorization level....................................... 60 60 60 60 60 60
Estimated outlays......................................... 0 2 69 72 67 60
Basis of Estimate: For this estimate, CBO assumes that S.
1762 will be enacted during fiscal year 2000 and that funding
will be provided as authorized by the bill. Estimates of
outlays are based on historical spending patterns for similar
programs. To date, no funds have been appropriated to NRCS for
activities authorized under S. 1762.
Pay-as-you-go Considerations: None.
Intergovernmental and Private-Sector Impact: S. 1762
contains no intergovernmental or private-sector mandates as
defined in UMRA. State and local governments would probably
incur some costs to match the grants authorized by this bill,
but these costs would be voluntary. The bill would require
recipients to fund at least 35 percent of the total costs of
Previous CBO Estimate: On November 3, 1999, CBO transmitted
a cost estimate for H.R. 728, the Small Watershed
Rehabilitation Amendments of 1999, as ordered reported by the
House Committee on Agriculture on October 27, 1999. That
legislation is nearly identical to S. 1762, and the cost
estimates are the same.
On April 17, 2000, CBO transmitted a cost estimate for H.R.
728 as ordered reported by the House Committee on
Transportation and Infrastructure on November 18, 1999. The
version approved by the Transportation and Infrastructure
Committee also would authorize $60 million a year for the NRCS,
but in addition, it would authorize the appropriation of $30
million in 2001 for federal assistance by the Army Corps of
Estimate Prepared by: Federal Costs: Rachel Applebaum;
Impact on State, Local, and Tribal Governments: Marjorie
Miller; and Impact on the Private Sector: Sarah Sitarek.
Estimate Approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
VI. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made in
the bill, as reported are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
WATERSHED PROTECTION AND FLOOD PREVENTION ACT
SEC. 13. DATA.
The Secretary shall collect and maintain data on a national
and State by State basis concerning--
(1) expenditures for the individual flood control and
conservation measures for which assistance is provided
under this Act; and
(2) the expected flood control or environmental
(including soil erosion) benefits that will result from
the implementation of such measures
* * * * * * *
SEC. 14. REHABILITATION OF STRUCTURAL MEASURES NEAR, AT, OR PAST THEIR
EVALUATED LIFE EXPECTANCY.
(a) Definitions.--For purposes of this section:
(1) Rehabilitation.--The term ``rehabilitation'',
with respect to a structural measure constructed as
part of a covered water resource project, means the
completion of all work necessary to extend the service
life of the structural measure and meet applicable
safety and performance standards. This may include (A)
protecting the integrity of the structural measure, or
prolonging the useful life of the structural measure,
beyond the original evaluated life expectancy, (B)
correcting damage to the structural measure from a
catastrophic event, (C) correcting the deterioration of
structural components that are deteriorating at an
abnormal rate, (D) upgrading the structural measure to
meet changed land use conditions in the watershed
served by the structural measure or changed safety
criteria applicable to the structural measure, or (E)
decommissioning the structural measure, including
removal or breaching.
(2) Covered water resource project.--The term
``covered water resource project'' means a work of
improvement carried out under any of the following:
(A) This Act.
(B) Section 13 of the Act of December 22,
1944 (Public Law 78-534; 58 Stat. 905).
(C) The pilot watershed program authorized
under the heading ``Flood Prevention'' of the
Department of Agriculture Appropriation Act,
1954 (Public Law 156; 67 Stat. 214).
(D) Subtitle H of title XV of the Agriculture
and Food Act of 1981 (16 U.S.C. 3451 et seq.;
commonly known as the Resource Conservation and
(3) Eligible local organization.--The term ``eligible
local organization'' means a local organization or
appropriate State agency responsible for the operation
and maintenance of structural measures constructed as
part of a covered water resource project.
(4) Structural measure.--The term ``structural
measure'' means a physical improvement that impounds
water, commonly known as a dam, which was constructed
as part of a covered water resource project.
(b) Cost Share Assistance for Rehabilitation.--
(1) Assistance authorized.--The Secretary may provide
financial assistance to an eligible local organization
to cover a portion of the total costs incurred for the
rehabilitation of structural measures originally
constructed as part of a covered water resource
project. The total costs of rehabilitation include the
costs associated with all components of the
rehabilitation project, including acquisition of land,
easements, and rights-of-ways, rehabilitation project
administration, the provision of technical assistance,
contracting, and construction costs, except that the
local organization shall be responsible for securing
all land, easements, or rights-of-ways necessary for
(2) Amount of assistance; limitations.--The amount of
Federal funds that may be made available under this
subsection to an eligible local organization for
construction of a particular rehabilitation project
shall be equal to 65 percent of the total
rehabilitation costs, but not to exceed 100 percent of
actual construction costs incurred in the
rehabilitation. However, the local organization shall
be responsible for the costs of water, mineral, and
other resource rights and all Federal, State, and local
(3) Relation to land use and development
regulations.--As a condition on entering into an
agreement to provide financial assistance under this
subsection, the Secretary, working in concert with the
eligible local organization, may require that proper
zoning or other developmental regulations are in place
in the watershed in which the structural measures to be
rehabilitated under the agreement are located so that--
(A) the completed rehabilitation project is
not quickly rendered inadequate by additional
(B) society can realize the full benefits of
the rehabilitation investment.
(c) Technical Assistance for Watershed Project
Rehabilitation.--The Secretary, acting through the Natural
Resources Conservation Service, may provide technical
assistance in planning, designing, and implementing
rehabilitation projects should an eligible local organization
request such assistance. Such assistance may consist of
specialists in such fields as engineering, geology, soils,
agronomy, biology, hydraulics,hydrology, economics, water
quality, and contract administration.
(d) Prohibited Use.--
(1) Performance of operation and maintenance.--
Rehabilitation assistance provided under this section
may not be used to perform operation and maintenance
activities specified in the agreement for the covered
water resource project entered into between the
Secretary and the eligible local organization
responsible for the works of improvement. Such
operation and maintenance activities shall remain the
responsibility of the local organization, as provided
in the project work plan.
(2) Renegotiation.--Notwithstanding paragraph (1), as
part of the provision of financial assistance under
subsection (b), the Secretary may renegotiate the
original agreement for the covered water resource
project entered into between the Secretary and the
eligible local organization regarding responsibility
for the operation and maintenance of the project when
the rehabilitation is finished.
(e) Application for Rehabilitation Assistance.--An eligible
local organization may apply to the Secretary for technical and
financial assistance under this section if the application has
also been submitted to and approved by the State agency having
supervisory responsibility over the covered water resource
project at issue or, if there is no State agency having such
responsibility, by the Governor of the State. The Secretary
shall request the State dam safety officer (or equivalent State
official) to be involved in the application process if State
permits or approvals are required. The rehabilitation of
structural measures shall meet standards established by the
Secretary and address other dam safety issues. At the request
of the eligible local organization, personnel of the Natural
Resources Conservation Service of the Department of Agriculture
may assist in preparing applications for assistance.
(f) Justification for Rehabilitation Assistance.--In order
to qualify for technical or financial assistance under this
authority, the Secretary shall require the rehabilitation
project to be performed in the most cost-effective manner that
accomplishes the rehabilitation objective. Since the
requirements for accomplishing the rehabilitation are generally
for public health and safety reasons, in many instances being
mandated by other State or Federal laws, no benefit-cost
analysis will be conducted and no benefit-cost ratio greater
than one will be required. The benefits of and the requirements
for the rehabilitation project shall be documented to ensure
the wise and responsible use of Federal funds.
(g) Ranking of Requests for Rehabilitation Assistance.--The
Secretary shall establish such system of approving
rehabilitation requests, recognizing that such requests will be
received throughout the fiscal year and subject to the
availability of funds to carry out this section, as is
necessary for proper administration by the Department of
Agriculture and equitable for all eligible local organizations.
The approval process shall be in writing, and made known to all
eligible local organizations and appropriate State agencies.
(h) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary $60,000,000 for each of the
fiscal years 2000 through 2009 to provide financial and
technical assistance under this section.
(i) Assessment of Rehabilitation Needs.--Of the amount
appropriated pursuant to subsection (h) for fiscal years 2000
and 2001, $5,000,000 shall be used by the Secretary, in concert
with the responsible State agencies, to conduct an assessment
of the rehabilitation needs of covered water resource projects
in all States in which such projects are located.
(j) Recordkeeping and Reports.--
(1) Secretary.--The Secretary shall maintain a data
base to track the benefits derived from rehabilitation
projects supported under this section and the
expenditures made under this section. On the basis of
such data and the reports submitted under paragraph
(2), the Secretary shall prepare and submit to Congress
an annual report providing the status of activities
conducted under this section.
(2) Grant recipients.--Not later than 90 days after
the completion of a specific rehabilitation project for
which assistance is provided under this section, the
eligible local organization that received the
assistance shall make a report to the Secretary giving
the status of any rehabilitation effort undertaken
using financial assistance provided under this section.