Text: S.Hrg. 115-428 — LEGISLATIVE HEARING ON S. 2800, AMERICA'S WATER INFRASTRUCTURE ACT OF 2018
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[Senate Hearing 115-428]
[From the U.S. Government Publishing Office]
S. Hrg. 115-428
LEGISLATIVE HEARING ON S. 2800, AMERICA'S WATER INFRASTRUCTURE ACT OF
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
MAY 17, 2018
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
U.S GOVERNMENT PUBLISHING OFFICE
34-176 PDF WASHINGTON : 2019
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTEENTH CONGRESS
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska JEFF MERKLEY, Oregon
JERRY MORAN, Kansas KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota CORY A. BOOKER, New Jersey
JONI ERNST, Iowa EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Gabrielle Batkin, Minority Staff Director
C O N T E N T S
MAY 17, 2018
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 2
James, Hon. R.D., Assistant Secretary of the Army Civil Works.... 4
Responses to additional questions from:
Senator Barrasso......................................... 7
Senator Carper........................................... 8
Senator Sanders.......................................... 9
Response to an additional question from Senator Sullivan..... 12
Statement of Wyoming Association of Conservation Districts....... 39
LEGISLATIVE HEARING ON S. 2800, AMERICA'S WATER INFRASTRUCTURE ACT OF
THURSDAY, MAY 17, 2018
Committee on Environment and Public Works,
The committee met, pursuant to notice, at 10:21 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(chairman of the committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito,
Boozman, Wicker, Fischer, Moran, Rounds, Ernst, Sullivan,
Cardin, Whitehouse, Gillibrand, Markey, and Van Hollen.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Good morning. I call this hearing to
Last week, our Committee held the first legislative hearing
on S. 2800, America's Water Infrastructure Act of 2018.
Today I am very pleased to welcome to the Committee R.D.
James, who is the Assistant Secretary of the Army for Civil
Works. This second hearing on the bill is an opportunity to get
the agency's insight and feedback on our legislation. Next week
this Committee will mark up the important legislation. We plan
to add a bipartisan manager's amendment to the bill to further
America's Water Infrastructure Act is a bipartisan piece of
legislation. I introduced it along with Ranking Member Carper,
the Transportation and Infrastructure Subcommittee Chairman
Inhofe and Subcommittee Ranking Member Cardin. The bill is now
also sponsored by Senator Capito and Senator Van Hollen,
Senator Wicker, and Senator Boozman.
At least week's hearing we heard broad support for the
legislation from State leaders, from farmers, from civil
engineers, and from other stakeholders. The Committee has
received letters and statements of support from a wide-ranging
number of organizations, including the U.S. Conference of
Mayors, the National League of Cities, the National Association
of Counties, the American Society of Civil Engineers, the
National Audubon Society, and the National Rural Water
Water infrastructure is important to every community in
this Country. These systems support economic growth and
competitiveness; they provide water for cattle and for crops.
They are used to ship goods; they deliver drinking water and
address wastewater; they keep homes safe from dangerous floods;
and they provide water in times of drought. I can't overState
the importance of the Nation's water infrastructure system. The
America's Water Infrastructure Act will help deepen nationally
significant ports and fix aging dams and irrigation systems.
This bill will maintain the navigability of inland waterways
and increase water storage in the West. It is reform
legislation to get projects moving and make Government more
America's Water Infrastructure Act will cut bureaucratic
red tape. The legislation will give local leaders and
stakeholders a greater role in deciding which Army Corps
projects should be priorities. It is good news for small, for
rural, and for inland States. Local leaders know which projects
would have the best impact on their communities, the greatest
The bill includes a study by the National Academy of
Sciences on how to improve, structure, and manage the Army
Corps. This study will let us know how to further reform the
Our legislation includes permitting reform for important
water storage projects. These reforms should allow for the
development of more water storage, which is critical to
communities in Wyoming and across the West.
The successful Water Infrastructure Flexibility Act
program, or WIFIA, is reauthorized in this bill. This will
further authorize millions of dollars to accelerate investment
in the Nation's water infrastructure. Under WIFIA, those
dollars will leverage $2 billion in investment.
Programs like WIFIA get taxpayers more bang for the buck.
And we are working on additional changes to the bill that will
help smaller rural communities leverage WIFIA dollars to build
The bill is bipartisan. It is fiscally responsible. It will
have a real impact in rural America and across the Nation, so I
look forward to continuing to work with my colleagues on this
Committee to advance this important infrastructure legislation.
With that, I would like to turn to the Ranking Member and
cosponsor of the bill, Senator Carper.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Mr. Chairman, thank you so much. I
apologize for being late. I was invited to be part of the
roundtable that focused on the cost of inaction, a conversation
on U.S. infrastructure, a business roundtable with Jamie
Diamond and a fellow named Brendan Bechtel, the CEO of Bechtel,
Larry Willis, who is the President of AFL-CIO transportation
trades, Congressman Rodney Davis, Republican from Illinois.
We focused on infrastructure and why we are unable to get
anything done. Finally, I had to leave near the end of the
show, and I apologized and I explained why I was coming and why
we are trying to show some leadership here on this Committee to
actually get something done on the water infrastructure part of
our Nation's needs.
I am delighted to be here and partnered with our Chairman.
I am glad to be a partner with Jim Inhofe and Ben Cardin as the
chairs and ranking members of the relevant Transportation and
I am proud of the bipartisan work that we have done thus
far on this legislation and, again, I hope it will serve as a
model for what we can get done along with other committees if
we work together going into the future, and that is what we
intend to do.
I also want to thank Secretary James for joining us again
today. We just appreciate so much the help that you and your
team have provided to date so that our legislative process can
move quickly and smoothly.
As I said before and I am sure you will hear me say again
today, coastal issues are mighty important to Delaware, the
lowest lying State in the Country, and the water resources bill
is critical to our State's economy, as it is to the economies
of many States that are represented here today.
Delaware's economic reliance on the Corps work is not
unique. Over 99 percent of the U.S. overseas trade volume moves
through waterways that the Corps maintains. Think about that.
Over 99 percent of the U.S. overseas trade volume moves through
waterways that the Army Corps of Engineers maintains.
The Corps' inland waterways and locks form a freight
network, really sort of a water highway, that provides access
to international markets through our ports. They also serve as
critical infrastructure for the U.S. military.
Our bill authorizes investments in this system in multiple
ways. Most notably at the request of Secretary James and of
many Senators both on and off this Committee, the bill better
positions the Corps to be an active partner with ports, with
communities, with States, with Tribes, and other stakeholders
in growing and expanding our Nation's economy.
Putting our local stakeholders at the table with the Corps
will enhance the process and help the Corps become a more
viable partner in projects that promote long-term economic
We have heard from many Senators that reinvestment in this
partnership is much needed and that our Committee needs to
address criteria that the Corps uses to budget for projects.
For the better part of a decade, now, the executive branch
has calculated water project costs and benefits in a way that
has led to a backlog of unfunded and uncompleted, but needed,
projects. Our bill works to address this problem by authorizing
new funding and project planning requirements at the Corps'
most local level, the individual Corps districts.
This legislation requires local participation in the
development of these new district plans, too. Hopefully, this
participation will allow for a more transparent and long-term
look at the Corps' activities, while also building a greater
groundswell of support for increased appropriations for the
Our legislation also authorizes investments in both our
inland and our coastal waterways. I am particularly proud of a
provision that will support the selection of natural
infrastructure alternatives as a practical solution in
situations where and when the development of gray or more
traditional infrastructure alone may not work.
The Army Corps of Engineers also works to reduce risk to
human safety and property damage from flooding. Flooding alone
currently costs the United States billions of dollars annually.
As the 2017 hurricane season illustrated, our Nation needs to
be ready for the next extreme storm or flood event because it
almost certainly is coming.
The total cost for extreme weather and climate events in
2017 exceeded $300 billion. Let me say that again. The total
cost for extreme weather and climate events in 2017 exceeded
$300 billion, a new annual record in the United States. In
truth, it is no longer a matter of if the next extreme weather
event is coming; it is just a matter of when.
Our bill allows the Secretary of the Army to waive the cost
share for hazard mitigation related feasibility studies so that
we can be shovel-ready before the next storm, before the next
storm hits. Additionally, the bill modifies the Corps' existing
emergency authorities to allow the agency to participate in
storm damage recovery for a longer period of time, make more
resilient infrastructure decisions, and, where appropriate,
cost share infrastructure replacement so resources can go
As we have heard already, I think, here today, the American
Society of Civil Engineers Infrastructure Report Card currently
gives our Country's dams, levees, and inland waters a D, for
deplorable, for decrepit, for decaying, representing an overall
backlog of unconstructed projects totaling some $96 billion.
Our bill also reauthorizes the Corps' dam safety programs and
makes much needed changes as proposed by civil engineers.
Clearly, we have a good deal of additional important work
to do to move this bill across the goal line; however, the
cumulative efforts of a number of people, many of them in this
room today, have enabled us to get off to a good start. If we
continue to work hard, and in a bipartisan fashion, I believe
we will enact water resources legislation that will strengthen
our Country in many ways, and in a timely manner, and maybe set
an example that other committees in both the House and the
Senate will choose to emulate.
In closing, Mr. Chairman, I want to thank you, our
colleagues, Jim Inhofe, Ben Cardin, your staffs, our staffs for
your leadership on this bill.
We welcome Secretary James back before our Committee. We
look forward to hearing from you today and using your input,
along with that of many other stakeholders, to craft
legislation that we can all be proud of.
Senator Barrasso. Thank you, Senator Carper.
We will now turn to our witness, R.D. James, Assistant
Secretary of the Army for Civil Works.
I want to remind the Secretary that your full written
testimony will be made part of the official hearing record, so
please try to keep your statement to about 5 minutes so we will
have time for questions. We all look forward to your testimony.
STATEMENT OF HON. R.D. JAMES, ASSISTANT
SECRETARY OF THE ARMY CIVIL WORKS
Mr. James. Thank you, Mr. Chairman and members of the
esteemed Committee. I am honored to be back before this
Committee today to discuss the water infrastructure needs and
challenges of this Nation and S. 2800, America's Water
Infrastructure Act 2018. I am R.D. James, the Assistant
Secretary of the Army for Civil Works.
The Administration is reviewing this bill and does not have
a position at this time. Today I would like to discuss the
Civil Works program and some of the reforms I am already
leading with the Corps or which the Administration has proposed
to help meet the Nation's water resource challenges going
The Civil Works program of the Corps has three main
missions: commercial navigation, flood and storm damage
reduction, and aquatic ecosystem restoration. In this regard,
the Corps works with our Nation's coastal ports to maintain
their channels, operates and maintains the inland waterways,
supports State and local flood risk management activities,
works to restore significant aquatic ecosystems, and operates
and maintains multipurpose dams, as well as the reservoirs
There are about 250 million day visits a year for
recreation at Corps lands and reservoirs, making the Corps one
of the top Federal recreation providers. The infrastructure
that the Corps maintains includes 13,000 miles of coastal
navigation channels, 12,000 miles of inland waterways, 715
dams, 241 locks, 195 navigationsites, 14,700 miles of levees,
and hydro plants at 75 locations with 353 generating units.
These projects provide risk reduction from flooding in our
river valleys and along our coasts, facilitate the movement of
approximately 2 billion tons of waterborne commerce, and
provide up to 24 percent of our Nation's hydropower.
During my tenure on the Mississippi River Commission, river
engineers proved to me that flood control and navigation on
major rivers work hand-in-hand. Flood control structures
enhance navigation. Navigation improvements facilitate passing
floods. Reservoirs, floodways, and backwater areas must be
reserved for use in both river flooding and in drought.
The Corps has proven its ability to manage these structures
as a system to protect lives and promote commerce. However,
much of this infrastructure was constructed in the first half
of the 20th century and today requires a significant amount of
resources to maintain. The current paradigm for investing in
water resources development is not sustainable.
The Corps continues to work on policy and administrative
changes that can improve infrastructure delivery cheaper and
faster. I am looking at the organization myself, the
authorities, policies, regulations, and procedures, to
expressly identify opportunities for increased efficiency and
effectiveness. This includes efforts to reduce redundancy and
delegate authority for decisionmaking to the most practical and
Delegating decisionmaking authority for numerous programs,
including Section 408 permissions, down to the district has
streamlined the process and shortened the time it takes to
reach a decision. I am committed to positioning the Corps for
success, to move dirt cheaper and faster.
Our Civil Works water infrastructure allows us to live
better, safer lives and more fully realize the natural benefits
from this great Nation. The way we promote and protect our
water resources affects our Nation's economy, its environment,
and its public safety. The Army Corps stands ready to lead in
addressing the water resource demands and challenges of the
I look forward to working with this Committee on these very
important issues. I appreciate your efforts to raise many of
these issues in your new bill.
Thank you, Mr. Chairman and members of the Committee. This
concludes my statement. I look forward to your questions.
[The prepared statement of Mr. James follows:]
Statement of Hon. R.D. James, Assistant
Secretary of the Army Civil Works
Mr. Chairman and Members of the Committee:
I am honored to be back before this Committee today to
discuss the water infrastructure needs and challenges for the
Nation, and S. 2800, America's Water Infrastructure Act, 2018.
I am R.D. James, the Assistant Secretary of the Army for Civil
Works. The Administration is continuing to review this bill and
does not have a position at this time. Today, I would like to
discuss the civil works program and some of the reforms I am
already leading with the Corps or which the Administration has
proposed to help meet the Nation's water resources challenges
As stated in previous hearings, the U.S. Army Corps of
Engineers (Corps) has played a significant role in the
development of the Nation's water resources. The Civil Works
program of the Corps has three main missions:
flood and storm damage reduction, and
aquatic ecosystem restoration.
In this regard, the Corps works with our Nation's coastal
ports to maintain their channels; operates and maintains the
inland waterways; supports State and local flood risk
management activities; works to restore significant aquatic
ecosystems; and operates and maintains multipurpose dams, as
well as the reservoirs behind them. There are about 250 million
day-visits a year for recreation at Corps lands and reservoirs,
making the Corps one of the top Federal recreation providers.
The infrastructure that the Corps maintains includes 13,000
miles of coastal navigation channels (including the channels of
the Great Lakes), 12,000 miles of inland waterways, 715 dams,
241 locks at 195 navigationsites, 14,700 miles of levees, and
hydropower plants at 75 locations with 353 generating units.
These projects help provide risk reduction from flooding in our
river valleys and along our coasts, facilitate the movement of
approximately two billion tons of waterborne commerce, and
provide up to 24 percent of the Nation's hydropower.
Much of this infrastructure was constructed in the first
half of the twentieth century and today requires a significant
amount of resources to maintain. The current paradigm for
investing in water resources development is not sustainable.
The Corps continues to work on policy and administrative
changes that can improve infrastructure delivery. My staff and
I are looking at the organization, authorities, policies,
regulations, and procedures to expressly identify opportunities
for increased efficiency and effectiveness. This includes
efforts to reduce redundancy and delegate authority for
decisionmaking to the most practical and appropriate level.
Delegating decisionmaking authority for numerous programs,
including Section 408 permissions, down to the district level
has streamlined the process and shortened the time it takes to
reach a decision. I am committed to positioning the Corps for
The way that we use our water resources affects our
Nation's economy, its environment, and public safety. The Corps
stands ready to help in addressing the water resource demands
and challenges of the 21st Century. I look forward to working
with the Committee on these very important issues.
Thank you, Mr. Chairman and Members of Committee. This
concludes my statement. I look forward to answering any
questions you or other Members of the Committee may have.
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Senator Barrasso. Well, thank you very much, Secretary
James. We appreciate your being here. There are a number of
members, obviously a big turnout, are interested in this topic.
Let me start with this. 2017 was a record year for runoff
in the Upper Snake River Basin around Jackson Lake in northwest
Wyoming. It experienced significant amounts of flooding. As of
last month, runoff predictions for this year were 136 percent
of average, which is presenting, again, another significant
risk of flooding.
Landowners and stakeholders from around the area have been
contacting my office with concern for how the Army Corps and
the Bureau of Reclamation have managed the spring runoff out of
Jackson Lake and down the Snake River.
I sent you a letter on April 18th regarding this issue and
I ask unanimous consent that this be entered into the record,
and it will be without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. What assurances can you give me that you
are working with local entities, as well as the Bureau of
Reclamation, to minimize flooding in this area?
Mr. James. Senator, it is my understanding that the Corps
is working hand-in-hand with the Bureau of Rec and local
sponsors in that area to prevent flooding in the future or
reduce the risk of flooding in the future.
Senator Barrasso. I appreciate that very much and we will
continue in close communication to make sure that that is able
to be accomplished. Thank you.
One of the things that you mentioned is move dirt faster
and cheaper, in your comments. I think that was your phrase.
You know, an adequate and affordable water supply is crucial to
so many rural communities, farms, cities alike, and what we
have seen is reservoirs, such as the Big Horn Reservoir in
Wyoming, has lost significant water storage capacity due to
sediment buildup. So, when we talk about moving dirt faster and
cheaper, it is not just aboveground; it is also in our
The America's Water Infrastructure Act increases water
supply in existing reservoirs by developing programs, sediment
management plans, for these reservoirs through partnerships,
partnerships between the Corps and the Bureau of Reclamation.
So, if signed into law, will you make it also a priority to
fully implement this provision so that rural and western
communities in need can have the benefits of that full water
storage capacity of the reservoirs by moving that dirt faster
Mr. James. Sir, absolutely I will. In the West, as I have
realized from talking to you in the past, the water resource
itself is what you are after and what you are losing by
sediment. In other parts of the Country we are losing flood
control storage due to the same type sediment. This has to be
addressed on a nationwide basis.
One of the issues I think we will run into on that is the
disposal of the sediment. We know how to get it out, but what
do we do with it? And we may need to talk about that in the
future and have some leadership from your Committee.
Senator Barrasso. Well, thank you very much, and thanks for
that national commitment to deal with that. I am very grateful.
As you know, the President has made rebuilding America's
infrastructure a top priority in this Administration. The
President has talked about leveraging Federal dollars to
maximize investments being made in water infrastructure, and I
believe this bill does that through programs like the WIFIA
program, Water Infrastructure Finance and Innovation Act, that
you are very familiar with.
My question is, from your perspective, will this
legislation really help fulfill some of the key principles
outlined by President Trump on rebuilding America's water
infrastructure in a timely and an effective manner, with more
of the focus on rural America, as well as more local control in
Mr. James. Sir, in my opinion, it will. It addresses
several things, including more work with the local sponsors,
direct work with local sponsors, input from local sponsors. We
have been lacking that for many years now.
The other thing is I noticed in the bill that, instead of
addressing individual harbors and individual dredging needs
along the East Coast, that they be looked at as a system so we
know where the sediment is going after we dredge it. And then
the work you have put into this bill as far as helping move
obstacles away from the Corps so we can do the job better as
you direct it.
Senator Barrasso. My final question before turning to
Senator Carper is several critical water resource development
projects are currently in review at the Corps but not ready for
authorization by Congress because a signed chief's report or
other decisions documents have not yet been completed.
Can you talk to me a little bit about what steps the Corps
is taking to accelerate these project reviews so that projects
are ready for authorization in America's Water Infrastructure
Act before the bill is actually signed into law?
Mr. James. Well, sir, that is actually one of my
complaints, is that we are not getting from day one to day X
soon enough as a Corps of Engineers; and then, oh, by the way,
once we get to authorization and get some appropriations, I
don't think we are getting to day one on moving dirt as soon as
I would like to see us as a Corps of Engineers.
I look forward to working with this Committee. I have some
ideas on that as we move forward today and I want to share them
Senator Barrasso. Well, we look forward to that. Thanks so
much for your being here today.
Senator Carper. Thanks, Mr. Chairman.
The first question I have today for you, Secretary James,
deals with the structure of the Corps. As you may recall, our
legislation currently includes a U.S. GAO study on benefit-cost
analysis. Our bill also asks the National Academy of Sciences
to study several things, including, one, how the Corps can
increase transparency; two, if we should use a system-wide,
rather than project-based, authorization process for water
projects; and the third thing we are asking the National
Academy of Sciences to study and give us their thoughts on is
whether the Corps' structure and organization should be
There has been a fair amount of public discussion, as you
know, about this last topic, and that is whether the Corps of
Engineers is appropriately housed within the Department of
Defense. In March of this year, Representative Bill Shuster,
Republican, Chairman of the Transportation and Infrastructure
Committee in the House, publicly announced that he was working
on legislation to move the Army Corps of Engineers' Civil Works
program from the Department of Defense and potentially place it
within the U.S. Department of Transportation. At that time,
Interior Secretary Ryan Zinke voiced that he wanted the Civil
Works program moved to his department, the Department of the
We understand informally that Representative Shuster has
decided he is not going to run for reelection and may not be
pushing for that movement right now, of the Army Corps to the
Department of Transportation, but we would be interested in
knowing your views on this topic. Do you anticipate that the
studies that are envisioned in our Senate bill will better
position the Corps to tackle our Nation's tough infrastructure
challenge? Your thoughts, please.
Mr. James. Senator, I haven't seen what the President has
planned yet in his agency review. I understand that it is not
just the Corps; it is the other agencies as well he is wanting
to look at and see how we can all do a better job for this
Nation. I haven't seen that; I think that is coming soon.
Without having seen that, I still have ideas of my own. It
is obvious that this Committee has ideas from looking through
the bill or reading the bill more than once, and I can't tell
you the outcome of what is going to happen. I can tell you that
I think your new bill postures the Congress for a good
discussion with the President on what should happen.
I really don't think I should reply as to what I think
should happen because it really is not going to matter; it is
what this Committee and the President decides. But I do think
this bill puts a good posture on current thinking by the Senate
as it deals with, particularly, the Corps of Engineers, if not
some of the other agencies as well.
We all know, I know and I can State, that the expeditious
nature in which we move forward in the Corps of Engineers does
not suit me, I will tell you. I think it is a combination of
both laws of the past and rules and regulations and engineering
circulars of the past. Inside the Corps, the director of Civil
Works, who is here with me, Mr. James Dalton, has been working
very hard over the last 10 months looking at themselves, trying
to streamline themselves, trying to make themselves more
Since I have been on the job, I have attacked the same
problem. We have made headway. Now, whether it is enough to
suit the Senate and the President, we will see.
Senator Carper. I have another question, but if we have a
second round I will followup with that question at that time.
Senator Barrasso. Thank you, Senator Carper.
Senator Inhofe. Thank you, Mr. Chairman.
Let me, first of all, make a comment from our experiences
here. We have been on this Committee a long period of time. We
have gone through several of the WRDA bills and other
legislation, and one of the problems we have had is just the
overabundance of redundancy. You have an application out there,
then you go through and you have all the different
bureaucracies to work with.
The President has said that, in talking about
infrastructure plans, he has highlighted several areas that can
help get our projects constructed faster. He is talking about
such as you don't really need a 404 and 408, you could do that
with one application. Or in areas where you have a Federal
decision, one bureaucracy to work with.
Is there anything that you could share with us that you
have shared with the President that is going to try to take
away the burdensome over-regulations?
Mr. James. I will do my best, sir. You mentioned the 404
and the 408. Those processes have both been moved down to the
district level. They have both been combined as one permitting
process. They are somewhat different. The 404 basically deals
with the wetlands; the 408 deals with protecting Federal
structures from encroachment or adverse effects from close-by
infrastructure. But we have put those together hopefully to
speed up that process.
The other thing that I had begun to notice in the
permitting process of the Corps, it was becoming punitive
rather than just a permit that you come to seek to do a
project. Now, that is not in all cases at all, but I have seen
Senator Inhofe. And I have seen it too, and I am glad you
mentioned that because that gets to my other question that I am
very much concerned about, and that is that over the past year
we have talked about the abuses of the Clean Water Act. It is
401 State certification process. Now, under the law, the 401
process gives States the option to evaluate with a maximum of 1
year, but they are supposed to be evaluating as to the
compliance with the Clean Air Act.
So, if there is a State who just doesn't like something, an
application that has been made, they can stall it for the year,
and then they hold the applicant over a barrel by saying we
will either deny it or you withdraw it. And what has happened
is there are a lot of them, to just give you an example, on the
pipelines trying to reach in the eastern part of the United
States, they have been unable to do it because of this
bureaucracy that is out there in the efforts to stop that type
of legislation from going through, so they hold up a permit
under 401 and, as a result of that, the people are the ones who
are being punished.
A good example is, in Boston they are importing their
natural gas from Russia. Now, we are producing more here than
Russia is. We could be doing that here. Why is that? Because
they can't get it because of the pipeline situation and the
obstruction that is out there.
Now, there should be a good legislative fix to that, and I
would think that hopefully you have had some time to look at
that, and it could be that we could define that so that they
can't use the 401 as a stall tactic unless it is something that
actually does violate the Clean Water Act or in some way is
consistent, so it can't just be used for an obstacle.
Have you thought about that?
Mr. James. Yes, sir. I am personally aware of the 401 water
quality certification of States. I have seen exactly what you
said happen in the past. I think it could be addressed
legislatively without stepping on the priorities and the needs
of a State simply by saying if it is not addressed within a
year, that the Federal Government would assume that they have
nothing to say about it.
Senator Inhofe. Well, I like your idea better.
Mr. James. You said it hurt those people with the gas line.
Where I have seen it is in flood control projects. Back then we
would go through the recon, the feasibility, pre-engineering
and design, the EIS, and get ready to go to build a project,
and couldn't get water quality certification from the State. So
that not only cost the local people money, because it was all
cost-shared; it cost the Federal Government. And ultimately, on
some of those projects, it actually killed those projects, so
that money that was spent was just down the rat hole.
Senator Inhofe. I think you and I both have great examples
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Inhofe.
Senator Cardin. Well, Mr. Chairman, first, I want to thank
you and Senator Carper for continuing the tradition of our
Committee on this legislation. I very much appreciate the
manner in which we have all been engaged in trying to advance a
bipartisan WRDA bill, so thank you very much. I am proud to
work with you on this bill.
Secretary James, I want to first thank you. During your
confirmation hearings, I made a suggestion, would you be
willing to visit our Poplar Island environmental
restorationsite. The next thing I know, I got a call from your
office telling me that you had planned to visit. The problem
was I couldn't make it the day that you scheduled, so your
office called back and rescheduled it so we could be together,
so I just thank you very much for the courtesies that were
extended. On April 5th the weather was a lot better than the
weather today, and we were fortunate that we had at least
decent weather. It was cold, but it was at least clear and we
could see, firsthand, Poplar Island.
Poplar Island was started by the work of Senator Sarbanes
before I came to the Senate and it is an environmental
restorationsite for disposal of materials coming out from
dredging. As I have explained previously, finding sites for
disposal material is not always easy.
In this case it is easy because we took an island that had
eroded to about 5 acres and restored it to 1,000 acres, and it
is restored through the use of disposal materials, but done in
a way that it is an environmental restorationsite, which is
critically important in the Chesapeake Bay for the
environmental reasons of the Chesapeake Bay and preserving the
historic nature of that Bay.
So, we are very proud of how that has transpired. We have
challenges, and I am going to followup with Senator Inhofe's
point because I agree with him completely. There are a lot of
well-intended rules, but sometimes those rules can block the
ability to keep projects on schedule, on time; and that is of a
particular concern to me on our locations for dredge material.
Poplar Island still has several years remaining to be able
to receive dredge material, but we need to get planned on our
next site, which is Mid-Bay, which is not too far away from
Poplar Island, and everyone is in agreement. The Army Corps has
done their work on it, they are in agreement, and we are now
proceeding with completing Poplar Island and then transitioning
to Mid-Bay. Everyone is in agreement; all the work has been
We had hurdles in this year's appropriation bill, and one
of the problems was that the President's budget reclassified
Poplar Island from an environmental restoration project to a
navigation project. The economics of that would not work at
Poplar Island. It won't have a major impact on Poplar Island
because Poplar Island is finished, but if that philosophy were
to be continued to Mid-Bay, it would make it almost impossible
for Mid-Bay to be done.
We had a great discussion, and I think that was pretty
clear. I am pleased to see, Mr. Chairman, it looks like in the
House appropriation bills they have already taken care of this
particular problem. But I just mention that because these are
In your response to I think it was Senator Carper's point
or Senator Barrasso's point about you don't make the decisions,
I agree with you on the way you said this, but this Committee,
working with the appropriators, working with you, want to make
sure that we don't have any unintended consequences and we keep
on schedule, so we are going to need your help.
One of the things we need to do is design the engineering
of Mid-Bay, and we believe we need to do that in this budget
cycle. It could be done next budget cycle, but it is better if
it is done in this budget cycle, and we may be looking to you
for help as to how we can make sure we stay on schedule to
complete Poplar Island and transition to Mid-Bay.
You told me during this meeting that you will be fully
cooperative, and I appreciate that. My reason for bringing it
up now is mainly to thank you for your personal attention and
ask that we continue to work together with this Committee, with
the appropriators, with OMB and the other agencies to make sure
that we keep these two projects on schedule; critically
important to the economy of Maryland and the entire region,
with the Port of Baltimore and the other ports that are
connected hereto with the deeper harbors, as well as the
restoration of our environment and the Chesapeake Bay. So, I
thank you and just ask that you continue to work with us so
that we can make sure that we are together moving these
Mr. James. Sir, I also enjoyed our visit. It was sunny that
day and I didn't have a cap, so I got a slight burn on top, but
I got over it.
Senator Cardin. I had a cap.
Mr. James. But thank you for the kind words, and I will
continue to work with this entire Committee to try to move
forward water resources in this Country.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Cardin.
Senator Fischer. Thank you, Mr. Chairman.
And thank you, Mr. Secretary, for being here today. As I
have discussed with you before, Nebraska utilizes a unique
system of 23 natural resource districts governed by locally
elected boards to manage our State's waters resources, and
often these NRDs are the local sponsors of water infrastructure
projects with the Corps and are on the front lines to protect
Building off of Senator Inhofe's comments regarding the 408
permitting process, I appreciate that the Corps is taking a
look at this cumbersome project that we have to go through;
however, it is the Omaha district that has caused the problem,
and, as Senator Inhofe said, it is the people, the taxpayers
that are being punished.
The Omaha district held up this permit for 5 years, at the
cost of nearly $8 million. Are you aware of what is going on
there and, if so, how do you plan to address that?
Mr. James. No, ma'am, the only way I can address that is
that I think that 408 is to be completed by the end of May this
year. I am not fully aware of all the circumstances in that. I
will share with the Committee, later, my thoughts on what
should happen when that happens.
Senator Fischer. OK. I do understand that the Omaha
district office has indicated that that permit will be issued
to the NRD by the end of this month, but I still remain
astounded at the time and the money that has been spent on a
I am encouraged, sir, by your expressed commitment to
improve the Army Corps' decisionmaking process for permitting
issues like this example.
Mr. Chairman, I do ask unanimous consent to place into the
record a letter that Secretary James sent on April 20, 2018 to
levee district operators. In this letter, Secretary James, you
specifically point to improving the Army Corps' Section 408
permitting process as a priority.
Senator Barrasso. Without objection.
Senator Fischer. Thank you, sir.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Fischer. Secretary, can you explain what
improvements to the permitting process that you are looking at
implementing in the future and how these actions are going to
Mr. James. Yes, ma'am, I will, the ones I can remember. We
have made several on 404s and 408s. I guess one of the most
significant is we pushed those back down, those permit
decisions to the district level; out of headquarters, out of
the divisions. They are closer to the actual job site, they are
closer to the sponsors, so that should help that situation.
We have also reduced the requirement of the project
requirement before it receives the 408 permit as far as the
timing of the permit release, the amount of information the
Corps needs before they will release a permit.
There are several more. If I may, ma'am, I would like to
send you a note or come see you about them. There is a nice
list of things we have done; I just can't recall all of them
Senator Fischer. Thank you. I would appreciate that.
Mr. James. Yes, ma'am.
Senator Fischer. I would also like to draw your attention
to another issue that is facing our NRDs, this time related to
the Army Corps' transparency and accountability in the cost-
sharing for water resource projects. As partner with the Corps
on water resource projects, our NRDs work with the Corps to
share in the planning and the construction costs; however, our
NRDs have experienced issues with the Corps after project
completion related to closing out the account and the issuance
For example, an environmental restoration and flood
reduction project that boasts additional recreational benefits
was completed in 2013. The local NRD is still waiting for the
Omaha district to close out that account and reimburse the NRD
to the tune of nearly $800,000.
Mr. Secretary, can you please share with us the action you
will take to break through this systemic red tape and
facilitate project closeout projects, while also ensuring that
non-Federal partners are reimbursed in a timely manner for
their contributions to these projects?
Mr. James. Yes, ma'am. I noticed in the Committee's bill
that you all have addressed this same topic pretty well, but,
as the ASA, I definitely intend to address it. There is
absolutely no reason that a closeout should take over 6 months.
I assume the Corps would probably want a year, but absolutely
no more than a year. It is not that big a deal. I mean, even
with projects that don't have reimbursements coming, just the
normal everyday process of closing out a project, I have read,
since I have been here, several times a project was completed
in X year and closeout will be completed in X year.
I will have to get more information on that. There may be a
lot that I don't know, but I don't think so.
Senator Fischer. Thank you, sir. I appreciate it. Our local
taxpayers that provide the revenue for our NRDs also appreciate
you looking into it. Five years is not acceptable.
Senator Barrasso. Thank you, Senator Fischer.
Senator Whitehouse. Thank you, Chairman.
Welcome back, Mr. James. It is good to have you here. As
you can imagine, we all work here on this Committee pretty hard
to try to get our priorities into the WRDA bills, so, when they
pass into law, it can be a little bit frustrating when nothing
seems to happen in response to the law that we have passed.
I would like to flag two things for you from the 2016 WRDA
bill and ask you to give a little shake to the machinery to see
if we can get some action.
The 2016 WRDA bill, in Section 1173, directed the Corps to
undertake a National Academy of Sciences study on the use and
performance of innovative materials. By law, that report was
due this December. To date, we don't believe the Corps has even
started it. Can you give that a little shake and see if we can
get some attention to that?
Mr. James. Yes, sir, I will. I am not familiar with that,
but I will find out.
Senator Whitehouse. That is why I brought it up here.
And more generally, if you could followup with me a little
bit on what steps might be undertaken to get the Army Corps
engineering manuals and other guidance to a place where they
reflect the fact of these innovative materials that are being
It is important to us in coastal States, because some of
the more traditional materials don't survive well in salt
water, and salt water is increasingly intruding, so these
innovative materials matter; and if the engineering manuals
that set the standards for them don't exist, they are left out
of the equation in ways that are not fair and are not
You will help on that?
Mr. James. I understand that, sir, and I will get with the
Corps to see what it looks like now and make improvements along
this line, if we don't have it, and I assume we don't.
Senator Whitehouse. I appreciate it. We will followup.
The other WRDA thing from 2016 was the Corps' authority to
remove debris like derelict pilings from waterways. The Army
Corps had taken the position that they weren't obstacles to
navigation because you could navigate around them. To me, that
is the definition of an obstacle to navigate, is that you have
to navigate around it, but, never mind, we got that solved by
putting it in the law; and yet, to date, it doesn't appear that
the Corps has ever utilized this authority nor even developed
its implementation guidelines. I would really like to have this
not be ignored, so if you could followup with that as well, I
would appreciate it.
Mr. James. Yes, sir, I read that in the law. I was not
familiar with it, but I will check with the Corps on that
Senator Whitehouse. You can appreciate my sense of
Mr. James. I am just going to say this. I am not sure if it
is an appropriation problem or actually not doing the job
Senator Whitehouse. Well, let's solve it, whatever it is.
Mr. James. Well said.
Senator Whitehouse. And I have spoken to your local
commander, as well, about this.
The last issue is the continuing one that I raised when we
first met before your confirmation, about the disparity between
coastal and inland funding under the Corps Flood and Coastal
Storm Damage Reduction Account. When I first raised it with
you, we were looking at the Fiscal Year 2018 budget, and the
ratio was $30 inland for every $1 coastal. The Corps' Fiscal
Year 2019 budget proposal, which is $1.49 billion for this
account, has $40 million marked for coastal projects, so the
ratio has actually gotten worse since you and I first spoke
about it. It used to be 30 inland dollars for every 1 coastal
dollar; now it is 37 inland dollars for every coastal dollar.
For coastal States, particularly ones that are facing sea
level rise and a whole lot of new hazards that weren't
anticipated a half century ago, we would really like to find a
way to adjust that. So, again, I call this problem to your and
to my colleagues' attention, and we will continue to try to
find ways to make sure that there is a little bit more balance
here between the upland and inland side of this. When it is
called the Coastal Storm Damage Reduction Account, you would
like to have coastal have more than a 1 out of 38 ratio for
Mr. James. I understand that. I do recall our discussion
last time. I would like to have the opportunity to get with the
Corps, see what their budget priorities are on inland versus
coastal, the reasoning and all that goes with preparing a
budget, and get back with you.
Senator Whitehouse. May I come and visit with you and your
folks and be a part of that discussion?
Mr. James. Absolutely.
Senator Whitehouse. Great. We will set that up.
Mr. James. OK.
Senator Whitehouse. Thank you, Chairman.
Thank you, Mr. James. Appreciate your leadership at the
Senator Barrasso. Thank you, Senator Whitehouse.
Senator Wicker. Mr. Secretary, thank you for being with us.
One recurring problem that we have are the delays which take
place when multiple agencies have conflicting regulations and
differing policies on what is required for approval of a
project, so let me, first of all, applaud the Administration
goals to streamline NEPA and the regulations at multiple
agencies to achieve NEPA compliance, and hope that projects can
be built in a timely manner.
As it relates to NEPA compliance for large infrastructure
projects, how can the Corps take a more active leadership role
in streamlining decisionmaking and uniform application of
Mr. James. Sir, if that can happen, it is going to happen.
I will have to tell you that on those type projects we deal
with at least three other agencies. A lot of the times those
agencies drag their feet; they wait until the end of an EIS
process to protest where everybody stands and, therefore,
extends the process. I understand this inside and out. One
thing about the President, I think he has realized this
himself, and, through one Federal decision, I think all of that
is going to be better. I think it will require that the
agencies have to coordinate throughout the process of NEPA and
come out with one decision at the end. That has not been
happening; we have been having multiple agencies, multiple
decisions, as you know, sir.
Senator Wicker. OK. Well, you know, I am going to be nice
and not ask you to name these particular agencies, but I think
I know what you are talking about. Clearly, we are all one
Country and you are part of one Administration, so I hope that
your optimism there about getting that fixed can actually come
Let me ask about cost-benefit analyses. When considering
the viability of projects, there are two different standards
used to determine a favorable cost-benefit ratio. One is the
Corps of Engineers' approach; the other is Office of Management
and Budget. The Corps considers a project to have a favorable
cost-benefit ratio at one level, but then OMB has a much higher
threshold. For example, when calculating the cost-benefit, the
Corps will use the cost of money, the actual interest rate,
when determining the true cost of the project; OMB considers
projects with an automatic 7 percent interest rate.
Do you agree that all agencies should settle on a single
cost-benefit ratio that is required for Federal approval?
Mr. James. I can't say that I agree, sir. All I can say is
to reiterate what you just said. For authorization, the Corps
does submit projects that have a benefit-cost ratio greater
than one at the going rate, I think, on Treasury bonds, which
right now is like 2.75. That is not to say that the
Administration doesn't appropriate funds at a completely
different and unrelated benefit-cost ratio. That is the
Administration's prerogative and that is where we are with it
right now, and I don't think I just told you anything you don't
Senator Wicker. OK. Well, I will simply voice this to
everyone listening, including my colleagues. It would seem that
we ought to be able, as Federal legislators, to get all of the
agencies to agree on a single way to do the cost-benefit ratio,
rather than have conflicting standards.
With that, I thank you for your service and I yield back my
Senator Barrasso. Thank you, Senator Wicker.
Senator Moran. Chairman, thank you very much.
Secretary James, thank you for your presence here. I told
you the last time that you were here that when I hear your
voice, I am comforted, and it is still true today, and I hope
that the answers to my questions, in addition to the way you
speak, will be comforting as well.
I am here on what I think is a significant and important
issue for about 300 farmers in Kansas. The topic starts in
Nebraska, with the Harlan County Lake. It is a Corps lake. The
Bureau of Reclamation then contracts with the Corps to provide
water to irrigators. In this case, the Bureau of Reclamation is
the administrator of the irrigation contracts with the Bostwick
Irrigation District and has the responsibility for collecting
the costs associated with that irrigation annually.
The Corps allocates between certain accounts the expense of
maintaining and improving that lake structure and the
irrigation district in Kansas then, their members, have to pay
a portion of those costs. The key is how the Corps of Engineers
determines whether the cost is in one pot or in another. In
this case, after the rebuilding of 18 gates at the lake, the
determination was made--incidentally, it was announced that
this was necessary for a design flaw in the gates--but the
determination was made to allocate those costs in a way that
then caused them necessarily to be paid for by the irrigators.
We are certainly thankful that the dam safety project has
been completed, but the way the costs are allocating is going
to put my farmers in very dire circumstances. The design flaw
of the flood gates at Harlan County Dam were replaced because
of the design flaw, and the Corps of Engineers incorrectly
categorized that as normal O&M project.
The Corps stated, ``The gates were designed for no
friction, but there was a lot of friction in the gate bearings,
so the project was very necessary to prevent the failure of the
gates.'' All 18 of those gates were repaired and the Corps
described this as a complex dam project.
It sure sounds to me like this project is a safety of a
dams project, and the 2015 GAO report agrees with that. But, as
a result of determining that this is normal O&M by the Corps,
less than 300 farmers are on the hook for roughly $9.5 million
bill, or about $220 per acre.
We calculated the average farm income in Kansas has been
about $37,000 a year. The cost of this project for them is
about $35,000 for every 160-acre quarter. Those numbers don't
compute and, as you can imagine, my irrigators are fearful for
So, Mr. Secretary, I don't know the calculation that went
through the Corps of Engineers in determining whether they
considered this an O&M project or a dam safety project, but the
result is dramatic upon people who earn a living as a result of
having access to the water from Harlan County Reservoir, and I
need your help in fixing it. How can you help me?
Mr. James. I will advise the chief of engineers to look
directly into it and get me an answer, at which time I will
relate to you. If the answer is not satisfactory, we will go
further from there.
Let me address, if I can have a moment, water supply in
reservoirs. They are completely different out West than they
are in the Midwest and South. In the Midwest and South, most of
those reservoirs we call flood control reservoirs because that
is what they are. During heavy rain events, January through
April, they hold water back that we don't have to introduce
into the rivers and flood people.
Then, later, after the rainfall stops, we draw them down.
Well, right now, in my part of the world, we draw them down to
a recreation pool. And then later, like in September, October,
November, we draw them down to a winter pool, which you draw
the water out of them so they can hold more water during the
Now, OK, so there is recreation on them and there is flood
control on them, and now, then, across this Nation we are
seeing the need for water supply out of these reservoirs,
whether they be like your reservoir or like the South and
Midwest reservoirs. My concern is two or threefold. No. 1, we
all have sediment in our reservoirs, so we are losing it there.
We have recreation in most of them; therefore, we are losing
flood control there. Not during the summer months, but all the
recreators want us to extend the length of time in both
directions that we hold that recreation pool. And then you come
along with water supply; same difference.
Now, as far as I am concerned, and I have to think more
about this, but right now I am not sure water supply should be
a charge. That pool is going to be there. That reservoir is
there. Now, I know in the 1944 and the 1952 Acts of this
Congress, that is when this basically started, but if you have
a reservoir for flood control or for droughts out West holding
water for that, it doesn't take any more maintenance for water
supply than it does without water supply. I don't think we, as
the Corps, maintain water supply intakes.
So, I want to look into this and see where it came from,
see what the law says and address it, because it is beginning
to affect this whole Country, not just what you are talking
about, sir. And I intend to be doing that over the next
whenever I can, and I would be glad to get back with you on it.
But as far as your particular problem, I will talk to the
Senator Moran. My understanding of what you are describing,
which I appreciate your knowledge, but I also appreciate your
understanding of the experience, in most of our lakes, the
problem for irrigators is in most years there is not enough
water for them to access to irrigate. They still have costs
associated with their irrigation district they have to pay even
when they are not receiving water; and in this case the Corps
made a decision that when they are receiving water, to some
degree, at least, but they are going to pay for the cost of
replacing all those gates as if it was normal maintenance of
that dam and gate structure, and that defies reality and the
consequences are dramatic.
I appreciate the sympathy that you expressed and your
understanding of, in arid, dry country, or, in our case, we are
in a drought again, that water is very expensive when we get
it. It is even more expensive when we can't get it, and we are
still paying for things that are unassociated with our use of
Mr. James. Is that a Corps reservoir?
Senator Moran. It is a Corps reservoir, yes, sir.
Mr. James. What was it built for at the time?
Senator Moran. Flood control.
Mr. James. That is what I thought.
Senator Moran. Just what you described.
Mr. James. That is what most of them are built for, is
Senator Moran. I had to ask because it is in Nebraska.
Mr. James. I understand, sir. I am sorry, I didn't mean to
put you on the spot, but it would have made a difference in
what I am going to do.
Senator Moran. No, you have inspired me because you have
said several times today I don't know the answer, so I was
willing to admit that as well.
Senator Moran. Thank you.
Senator Barrasso. Thank you, Senator Moran.
Senator Rounds. Thank you, Mr. Chairman.
I would like to followup on what Senator Moran has been
talking about here a little bit with regard to what I think is
a similar issue. I appreciated the time that you spent with me
in my office yesterday concerning the flood issues on the
Missouri River and the possibilities of future floods, and the
amount of attention that I think we have to do with regard to
focusing on flood control as being the primary responsibility
under the 1944 Flood Act and the mainstem dams of the Missouri
River. I appreciated your comments.
Along that same line, we talked about a number of different
issues, and one of them had to do with the surplus water rule
which is being proposed right now and is due for final action
in September of this year. I would ask, and I think part of
what Senator Moran has been talking about is along a similar
line, and that is that you have an opportunity over the next
several months to fix something which started under the
previous Administration and I believe was a wrong move, and
that is for the Corps of Engineers to actually demand that
individuals in the upper mainstem dams of the Missouri River
actually be required to pay for water that is coming out of the
Missouri River where we have States rights, which clearly take
precedence to the water flowing through.
I am just going to lay out a couple of examples, and I
would like your thoughts on them because I would like the rest
of the Committee to see the challenge that you face, coming in
at this point, with the impact of what this surplus water rule
has done and what it would look like in terms of trying to
We spoke about the Corps of Engineers most recently denying
a contractor who was putting in a boat ramp on the Owyhee
Reservoir, and they requested to take 90,000 gallons out of the
Reservoir, which right now runs through at the rate of about
almost 39,000 cubic feet per second--that is about four-tenths
of 1 seconds worth of flow release coming through--and it was
denied because of the surplus water rule. They wouldn't give
access, they wouldn't give right-of-way to go on down and take
the water out to put in a boat dock, a recreational thing on
the Reservoir. They made them go elsewhere to get the water.
In addition to that, we have a case where we have the
Randall Community Water District, which has been negotiating
for upgrading their water intake on the Missouri River, and, in
doing so, the Corps of Engineers has required that they sign a
surplus water agreement to get access to the water, where they
already have a line in the water but they wanted to make
upgrades. I know that this apparently is on your desk today and
you shared with us a little bit about the frustration, the
concern yesterday that you had with why these folks should be
signing a surplus water agreement on something like this in the
My question is could you share with the Committee what your
finding with regard to the guidelines that you find yourself
walking into as to the surplus water rule that is being
proposed and the limitation that the Corps is currently using
to stop users along the river from accessing their legally
entitled water permits issued by the State of South Dakota and
other States by simply saying they are not going to give them
access across Corps take lines as a negotiating position?
Can you share a little bit about some of things you found
out there and the direction that you would like to go with
regard to fixing these issues?
Mr. James. Sir, as you know, I haven't had full discovery
of the problems. We have talked. I understand the basic problem
in that part of the world, but I go back to my statement a
moment ago. I am not sure why we charge for water. If we have a
reservoir that we built for flood control, and we have to mow
the grass and fix slides on that reservoir and gates and
overflow structures, what has that got to do with anybody
taking water out of that reservoir?
Senator Rounds. Well, with all due respect, every State up
and down the Missouri River has a legal access to the water
flowing through. Now, there is a limitation because you have to
respect the rights of other States down the line, but to
suggest that the Corps would restrict access to an entity up
and down the river from getting access, getting a legal right-
of-way to get to the water that they are entitled to seems to
me to be a terrible overreach of federalism.
Mr. James. Well, I think that is. Surely, what that was was
a 408 permit. It should be about a 24-to 36-hour turnaround.
Senator Rounds. Rather than a 36-month turnaround?
Mr. James. Yes, sir. Absolutely. I mean, look at the
equipment they are going to bring in. Look at the condition of
the land that they are going to traverse on. Look at where they
are going with the equipment. You and I could make the
Senator Rounds. It seems to me that a moratorium since
2007-2008 would seem to be inappropriate to me. Would you
Mr. James. Yes, sir.
Senator Rounds. Would you just commit that you will fix
something before this proposed rule, which I think would be
found inappropriate by the courts finally, but this proposed
rule that is coming up in September, would you agree that you
will get something done before it is finalized?
Mr. James. I am absolutely going to try.
Senator Rounds. Can you do a little better? Can we get some
kind of either you are agreeing with it so we can get this
thing resolved in the courts or agree that maybe there is a
better way to do it? Can we get that far, anyway?
Mr. James. I will tell you what I will do. I will put a
hold on it until I have time to find out all the truth.
Senator Rounds. In the meantime, would that mean that we
still have people having a tough time getting access across
Corps right-of-way? Would you do something about that as well,
rather than making them wait on these right-of-way permits
until that rule is eliminated?
Mr. James. No, sir, I can't do anything about that. I can,
through the Director of Civil Works, contact all the districts
to try to--you know, a lot of this stuff is just do what is
Senator Rounds. Absolutely. Why should a rural water system
or a water system in South Dakota that already has access to
this, when they want to make an upgrade, have to be held up and
be held hostage to signing a new water storage agreement to get
additional access rights to the same water that they have a
current legal right to have with a Federal agency saying, I am
sorry, but we are not going to upgrade your access to the
water? That seems to me to be something that we should be able
to fix, and it should not take an act of Congress to do it.
Mr. James. Well, sir, I hope you are right. I hope it
doesn't. I hope I can fix it.
Senator Rounds. I think the new Administration, with your
help, and I think you understand it, I think you guys can
resolve this thing. I am not going to put you on the spot any
more than what I already have, except to say that I hope that
this Administration is different than the last one when it
comes to federalism and the attitude that the Federal
Government should be controlling access to water which is
legally available to citizens in the States up and down the
Missouri River. I hope we can come to an agreement on that
fairly quickly, sir.
Mr. James. Yes, sir. Thank you.
Senator Rounds. Thank you. And I do appreciate your
interest in trying to resolve it. Thank you.
Mr. James. Thank you, sir.
Senator Barrasso. Thank you, Senator Rounds.
Senator Rounds. Thank you.
Senator Barrasso. Senator Markey.
Senator Markey. Thank you, Mr. Chairman, very much.
Welcome, Mr. James. It is our obligation to assist those
communities adversely impacted by sea level rise and climate
change to adapt to the new reality and protect their properties
and livelihood. But when the town of Sandwich, Massachusetts
attempted to use sand from the Federal Cape Code Canal that
otherwise would be dumped into the ocean to protect their town,
Federal requirements became a major obstacle. The U.S. Army
Corps of Engineers required the homeowners to provide easements
ceding away their coastal property line forever, even though
the sand from the Beneficial Use Project would only remain on
the beach for 5 years, and, ultimately, the town was unable to
use Federal funding for this essential shoreline protection
Mr. James, do you believe that it is reasonable for the
Army Corps of Engineers to require property owners to provide
easements in perpetuity for Beneficial Use Projects if the sand
is only going to last for a few years, say 5 years, as was the
case in Sandwich, Massachusetts? Wouldn't it be more
appropriate for the easements to last as long as the sand
remains on the beach?
Mr. James. Neither one, sir. I think the landowner, the
homeowner, the town, whatever, should pay them a dollar to
allow them to put the sand on the beach, and you wouldn't get
into any easements. You may have to do $100, but you shouldn't
have to do that. The same exact thing happened in Grand Isle,
Louisiana, exactly the same thing.
Senator Markey. I am going to work, if I may, with you and
the Committee. I plan on filing an amendment on this subject,
because I think we have to find some way of working reasonably
here with these communities.
Mr. James. Yes, sir.
Senator Markey. We need to strike an appropriate balance.
And you are from Louisiana?
Mr. James. No, sir, Missouri.
Senator Markey. Oh, Missouri.
Mr. James. Well, I am actually from Kentucky, but I live in
Senator Markey. I see.
So the Town of Sandwich, again, on Cape Cod, has suffered
from coastal erosion over several years, which may be a result
of the Federal Cape Cod Canal interrupting the natural flow of
sediment, that is, the sand flows into the channel rather than
onto the beach because of the Federal Cape Cod Canal; and the
town is currently seeking assistance from the Corps to nourish,
that is, to place sand on the beach using a special program
that was established to mitigate the damage caused by other
Federal projects, for example, the channels and the sea walls.
Under this program, the Corps typically pays for the entire
cost of the restoration, and the reason why is simple: if
Federal infrastructure is causing harm to our communities, it
is the Federal Government's obligation to make those
communities whole. Yet, the Corps may require communities to
pay half of the cost of maintaining those beaches after they
are restored, that is, placing more sand on them once the sand
But that is not in the spirit of the law. In the last
Congress, my provision in the Water Infrastructure Improvements
for the Nation Act required the Corps to pay the full cost of
feasibility studies conducted under this program, and I think
we should do the same for future renourishment of these
Do you agree with that approach, Mr. Secretary?
Mr. James. Yes, sir, I do, in this instance. I read that in
the bill and I didn't have any problem with that. You know, it
is a different story, but all over this Country, again, like
the reservoirs and the water supply, but a challenge over this
entire Country has to do with sediment.
Now, whether in your case you need some or whether in the
case of the flood control reservoirs they need to get rid of
some, the case of the Lower Mississippi River, which needs to
get rid of a lot; and the trouble that we are running into at
this point in time is disposal areas for the sediment. It has
become a major problem; it is keeping dredging done--it is
going to be interesting to see how we get sediment out of flood
control reservoirs and what we are going to do with it.
Senator Markey. I have one more quick question, if I may.
Mr. James. Oh, I am sorry.
Senator Markey. No, I thank you. We are operating under
time constraints here and there is a roll call, but I thank you
While New England has tremendous shoreline protection
needs, we do not have a lot of sand, making it more challenging
for Federal, State, and local partners to nourish our
shorelines, so we have to find more efficient uses of this
scarce resource to preserve our ability to fortify our
communities against the detrimental impacts of climate change.
Secretary James, would it be helpful if we established an
intergovernmental task force comprised of various Federal,
State, and local partners with jurisdiction over sediment to
make recommendations for more efficient use of sediment across
Mr. James. Sir, I am not a believer in task force or
committees. I noticed in this bill we had several things that
we are going to have people do this or do that as far as the
Corps projects and the Corps goes. I consider them a waste of
time. Now, if you want to get some experts out of the agencies
you are dealing with and make them accountable, then that is a
Senator Markey. I appreciate that. So maybe we can work
together on that.
Mr. James. I hope to, yes, sir.
Senator Markey. We need an integrated way of viewing this
issue, so maybe it is an interagency task force to accomplish
Senator Barrasso. Thank you, Senator Markey.
Senator Boozman. Thank you.
And thank you, Mr. Secretary, for being here. We appreciate
your frankness and, again, your willingness to work with
I would like to talk to you quickly, because we have votes
in a few minutes, about the backlog of operations on the
McClellan-Kerr Arkansas River Navigation System, which I know
you are very, very familiar with. Currently, we have an
estimated $153 million backlog; $140 million of that is
classified as critical by the Corps. As you know, failure of
any one of these components could severely impact the system
and even cause it to shut down, which would be devastating to
our farmers and the people that depend so much on that.
So, I guess what I would like to do is see if you could
look closely. We would like to work with you, perhaps have a
meeting, visit with you or whoever you feel like is appropriate
of your staff, and see if we could, again, for those that are
so, so very critical--I think there is 20 critical maintenance
needs that there is a 50 percent chance of failure in the next
5 years--visit with you and see if we can somehow get those
included in your workplans that are coming up in the next year
Mr. James. Senator Boozman, I would be glad to get with
you, get some members of my team together that knows what they
are talking about. My biggest concern right now on the
McClellan-Kerr is the Three Rivers.
Senator Boozman. Yes.
Mr. James. Now, I was down there probably 6 years ago, and
that is a crucial, critical point in that navigation system.
Senator Boozman. And that is a failure of not if, but when
that is going to happen.
Mr. James. Absolutely, sir. May I suggest something to you?
May I suggest that you, before we meet, may I suggest that you
have that colonel, that district engineer come up and either
brief you or be at our meeting?
Senator Boozman. No, for sure. He is really, again, your
team is good about the colonel, his staff, about helping us
with that; and I understand exactly what you are saying, that
is a critical area also. Another area that we would like to
work on is going to a 12-foot channel, which would make it such
that you could haul 40 percent more product. We talk a lot
about the environment, trying to be efficient and not use as
much fuel, so that makes all the sense in the world.
Hopefully, we can get together in the not too distant
future and, again, talk about some of these things that really
are critical. I have great interest, I know Senator Inhofe has
great interest in the project that you mentioned, Three Rivers.
The other, just the maintenance on things that are likely to
fail in the next 5 years, and then this 12-foot channel that we
have been together fighting the delegations for many years.
Mr. James. I would be happy to meet with you, sir, anytime,
just let me know.
Senator Boozman. No, we appreciate that, and I really do
appreciate that attitude which you have exhibited not only for
the Committee, but for Congress, that is very refreshing.
Something else that has come up is the discussion about
reorganizing the Corps of Engineers. Can you talk a little bit
about that? The Administration, I believe, is preparing to
release a report to satisfy Executive Order 13781, recommending
restructure of the Corps of Engineers. Can you take just a
minute or two and talk a little bit about what is going on with
Mr. James. Senator, I don't think it would do any good for
me to take a minute or two of your time because I haven't seen
any preamble on that or anything yet, and for me to sit here
and talk about it would be guessing. Hopefully, it will, when
it does come out, it will be similar to the one Federal
decision that it will be a direction for all the agencies,
hopefully some of this is, but as far as what he intends to do
with individual agencies--and this order, by the way, I do know
this, is for all the agencies, it is not just for the Corps. He
and his team are looking at all the agencies that serve him.
Senator Boozman. Very good. Well, we appreciate you and
your staff, your willingness to serve.
Mr. James. Thank you, Senator.
Senator Boozman. Thank you very much, Mr. Chairman.
Senator Barrasso. Thank you, Senator Boozman.
Final question, Senator Carper?
Senator Carper. Again, thanks so much for being here today,
for working with us and serving our Country. As you know, the
OMB budget process is one that is internal to the White House
and to the Administration, and there is a separation of powers
issue with budgeting. By this I mean we don't tell, legislative
branches, we don't tell this President or any President how to
write his or her budget. That said, this Committee does have
some concerns, as you know, over how the Corps budgets and
implements the Fiscal Year budgets that are passed by Congress.
My question is a fairly straightforward one. Do you feel
that the provisions of this legislation, of America's Water
Infrastructure Act, are sufficient to increase transparency and
local stakeholder involvement? Do you feel the provisions in
this legislation are sufficient to increase transparency and
local stakeholder involvement?
Mr. James. Senator, it is apparent to me that you all spend
a lot of time on those two issues and, yes, I do feel like it
Senator Carper. All right, that is my last question. We
will have some questions for the record.
Thank you again for working with us and the leadership that
you are providing. Thanks so much.
Mr. James. Thank you.
Senator Barrasso. Thank you, Senator Carper.
No more questions for today, but as you know, Mr.
Secretary, members may submit followup questions for the
record, so we are going to hold the hearing record open for the
next 2 weeks. I just really want to thank you for your time,
your testimony, and for your honesty with the Committee and
forthright approach. Thank you very much, Mr. Secretary.
Mr. James. Thank you, Mr. Chairman.
[Whereupon, at 11:43 a.m. the committee was adjourned.]
[Additional material submitted for the record follows:]
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