A picture of Senator Richard J. Durbin
Richard D.
Democrat IL

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  • Statements on Introduced Bills and Joint Resolutions

    by Senator Richard J. Durbin

    Posted on 2013-03-14

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    DURBIN: S. 565. A bill to provide for the safe and reliable navigation of the Mississippi River, and for other purposes; to the Committee on Environment and Public Works.



    Mr. DURBIN. Mr. President, I rise today to discuss two bills I am introducing--one to maintain navigation on the Mississippi River during extreme weather and the second, to improve the Nation's water infrastructure, including locks and dams on the Mississippi and Illinois Rivers.

    For many of us, last year's low water event on the Mississippi River is still fresh in our minds. We came close to economic catastrophe when ongoing drought conditions in the Midwest led to the lowest water levels seen on the Mississippi River since World War II and threatened to disrupt the movement of billions of dollars in goods on the river. At the height of the crisis at the end of 2012, Waterways Council and the American Waterways Operators estimated that up to $7 billion in goods could be effected by a river closure from December to January.

    The worst conditions for navigation were near Thebes, IL, in a stretch of river referred to as the Middle Mississippi. It begins at the confluence of the Missouri River and ends at Cairo, IL where the Ohio and Mississippi Rivers merge. The natural bends and twists of the river here combined with naturally occurring rock formations on the river bed make this stretch particularly difficult to navigate during periods of extreme low water. To pass, barges were forced to carry lighter loads than normal, reducing efficiency and costing them money.

    Only through better than expected rainfall, Congress pushing the Army Corps to expedite removal of rock pinnacles at Thebes, and some creative reservoir management was the river able to stay open and the worst case scenarios able to be avoided this time. For the Corps' part, it was an amazing fete and they should be commended for their successful efforts.

    But we know from Hurricane Katrina to Sandy, from severe flooding on the Mississippi River in 2011 to the historic low water in 2012, extreme weather seems to be the new normal--becoming more frequent and more severe.

    The Mississippi River Navigation Sustainment Act seeks to make government and commercial navigation users better prepared for the next extreme weather event that threatens navigation. I am pleased that Representatives Bill Enyart and Rodney Davis are introducing companion legislation in the House.

    The bill authorizes the Corps to conduct a study to better coordinate management of the entire Mississippi River Basin during periods of extreme weather. This will ensure that the U.S. Army Corps of Engineers takes into account the effect the entire basin has on navigation and flood control efforts on the Mississippi River.

    The Mississippi River Basin is the third largest watershed in the world and covers more than 40 percent of the contiguous United States. It doesn't take a PhD in hydrology to know that what happens on other systems in the [[Page S1857]] watershed affects the Mississippi River and activities on it.

    This bill will also improve river forecasting capabilities through the increased use of tools like sedimentation ranges and the deployment of additional automated river gages on he Mississippi and its tributaries. During the latest low water event, many of the manual gages--sometimes literally lines painted on bridges--became unusable because the water was so low. lmproving the ability to accurately forecast and provide information on current river conditions will help barge operators and shippers who have to make long term business decisions based on this information. Operators leaving Minnesota need to know that when they get to Thebes, river conditions will allow them to pass.

    The bill will also provide flexibility to the Army Corps to conduct certain operations outside of the authorized channel if such action is deemed necessary to maintaining commercial navigation. This authority would be used to maintain access to loading docks and other critical infrastructure during periods of low water. In addition, it will allow the Corps to better assist the Coast Guard in managing traffic on the river during low water events by providing areas for barge operators to moor their vessels farther away from the navigation channel, leading to increased safety and greater ability to keep the navigation channel clear.

    Finally, recognizing that the Mississippi River is a vital natural resource, this bill will create an environmental pilot program in the Middle Mississippi River. This will give the Army Corps the authority to restore and protect fish and wildlife habitat in this portion of the river while conducting activities to maintain navigation.

    Also key to maintaining navigation and commerce on the Mississippi and other inland waterways, is continued investment in water infrastructure.

    For example, the locks and dams on the upper Mississippi River and Illinois Rivers, built in the 30's and 40's, are aging, making the risk of failure an ever increasing prospect. In addition, the lock chambers are too small to accommodate today's standard barge configuration helping lead to an average delay of more than 4 hours for passing vessels.

    That is why I worked with my colleagues in Missouri and Iowa in the 2007 Water Resources and Development Act to authorize the Navigation and Ecosystem Sustainability Program which would expand and modernize these locks while restoring the ecosystem on the Upper Mississippi.

    Modernizing these locks means safer, more reliable, and drastically more efficient navigation. Operators and shippers alike would benefit-- barge companies could maximize efficiency while Illinois farmers and others could reliably get their products to market.

    Unfortunately, under current project delivery processes and Federal fiscal realities, the first benefits of this modernization are not expected to be felt by the navigation industry before 2047. And that was before sequestration. Between sequestration and the continuing resolution being debates on the Senate floor now, the Corps' construction budget for fiscal year 13 would be cut by approximately $80 million. Even before all of that, the Corps estimated a project backlog of approximately $60 billion.

    It is clear we need a new model--one that speeds up the process of planning and constructing these projects in the face of an often slow bureaucratic process and brings to the table greater private investment while the Federal Government is cutting back.

    That is what Senator Kirk and I are proposing with the Water Infrastructure Now Public-Private Partnership Act. I am proud that Representatives Bustos and Davis have introduced companion legislation in the House.

    The bill will create a pilot program to allow the Army Corps of Engineers to enter into agreements with non-federal partners using new and creative models to finance and construct up to 15 previously- authorized flood damage reduction, hurricane and storm damage reduction, and navigation projects.

    I am hopeful that this program will provide a way to maintain our investments in important water infrastructure projects even as we face severe fiscal restraints by creating a greater opportunity for private interests to come to the table.

    At the same time, the bill would take care to protect previous taxpayer investments by prohibiting any privatization of Federal assets and requiring a study to show that any proposed agreement would actually provide a public benefit.

    For many of these long-stalled, large scale infrastructure projects, like the Locks and Dams on the Mississippi and Illinois Rivers, this common sense bill could provide a way forward.

    Together, the Mississippi River Navigation Sustainment Act and the Water Infrastructure Now Public-Private Partnership Act, represent positive steps forward in the effort to maintain the economic viability of the Mississippi River and protect our inland waterway system against threats from extreme weather and aging infrastructure. I hope my colleagues will join me in cosponsoring these common sense measures.

    Mr. President, I ask unanimous consent that the text of the bills be printed in the Record.

    There being no objection, the text of the bills was ordered to be printed in the Record, as follows: S. 565 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Mississippi River Navigation Sustainment Act''.

    SEC. 2. FINDINGS.

    Congress finds that-- (1) the Mississippi River is the largest, most famous river in the United States and a vital natural resource; (2) the Mississippi River Basin is the third largest watershed in the world, covering more than 1,000,000 square miles and approximately 40 percent of the continental United States; (3) the rivers, tributaries, and reservoirs that make up the Mississippi River Basin operate naturally as a system and any attempt to operate projects within the Mississippi River Basin by mankind should take this fact into consideration; (4) the Mississippi River is the backbone of the inland waterway system of the United States and a crucial artery for the movement of goods; (5) each year millions of tons of commodities, including grain, coal, petroleum, and chemicals, representing billions of dollars are transported on the Mississippi River by barge; (6) the Mississippi River is home to some of the busiest commercial ports in the United States, including the Port of New Orleans and the Port of St. Louis; (7) safe and reliable navigation of the Mississippi River is vital to the national economy; (8) extreme weather events pose challenges to navigation and life along the Mississippi River and are likely to become more severe and more frequent in the coming years, as evidenced by the devastating floods along the Mississippi River in 2011 and the near historic low water levels seen on the same stretch of the Mississippi River in the winter of 2012-2013; (9) the American Waterways Operators and the Waterways Council, Incorporated have estimated that a disruption of navigation on the Mississippi River due to low water levels between December 2012 and January 2013 would have negatively impacted 20,000 jobs and $7,000,000,000 in cargo; (10) the Regulating Works Program of the St. Louis District of the Corps of Engineers is critical to maintaining navigation on the middle Mississippi River during extreme weather events and should receive continued Federal financial assistance and support; and (11) the Federal Government, commercial users, and others have a shared responsibility to take steps to maintain the critical flow of goods on the Mississippi River during extreme weather events.

    SEC. 3. DEFINITIONS.

    (a) Extreme Weather.--The term ``extreme weather'' means-- (1) severe flooding and drought conditions that lead to above or below average water levels; or (2) other severe weather events that threaten personal safety, property, and navigation on the inland waterways of the United States.

    (b) Greater Mississippi River Basin.--The term ``greater Mississippi River Basin'' means the area covered by hydrologic units 5, 6, 7, 8, 10, and 11, as identified by the United States Geological Survey as of the date of enactment of this Act.

    (c) Lower Mississippi River.--The term ``lower Mississippi River'' means the portion of the Mississippi River that begins at the confluence of the Ohio River and flows to the Gulf of Mexico.

    (d) Middle Mississippi River.--The term ``middle Mississippi River'' means the portion of the Mississippi River that begins at the confluence of the Missouri River and flows to the lower Mississippi River.

    (e) Secretary.--The term ``Secretary'' means the Secretary of the Army, acting through the Chief of Engineers.

    [[Page S1858]] SEC. 4. GREATER MISSISSIPPI RIVER BASIN EXTREME WEATHER MANAGEMENT STUDY.

    (a) In General.--The Secretary shall carry out a study of the Mississippi River Basin-- (1) to improve the coordinated and comprehensive management of water resource projects in the greater Mississippi River Basin relating to extreme weather conditions; and (2) to evaluate the feasibility of any modifications to those water resource projects and develop new water resource projects to improve the reliability of navigation and more effectively reduce flood risk.

    (b) Contents.--The study shall-- (1) identify any Federal actions necessary to prevent and mitigate the impacts of extreme weather, including changes to authorized channel dimensions, operational procedures of locks and dams, and reservoir management within the Mississippi River Basin; (2) evaluate the effect on navigation and flood risk management to the Mississippi River of all upstream rivers and tributaries, especially the confluence of the Illinois River, Missouri River, and Ohio River; (3) identify and make recommendations to remedy challenges to the Corps of Engineers presented by extreme weather, including river access, in carrying out its mission to maintain safe, reliable navigation; and (4) identify and locate natural or other potential impediments to maintaining navigation on the middle and lower Mississippi River during periods of low water, including existing industrial pipeline crossings.

    (c) Consultation and Use of Existing Data.--In carrying out the study, the Secretary shall-- (1) consult with appropriate committees of Congress, Federal, State, tribal, and local agencies, environmental interests, river navigation industry representatives, other shipping and business interests, organized labor, and nongovernmental organizations; (2) to the maximum extent practicable, use data in existence on the date of enactment of this Act; and (3) incorporate lessons learned and best practices developed as a result of past extreme weather events, including major floods and the successful effort to maintain navigation during the near historic low water levels on the Mississippi River during the winter of 2012-2013.

    (d) Cost-sharing.--The Federal share of the cost of carrying out the study under this section shall be 100 percent.

    (e) Report.--Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to Congress a report on the study carried out under this section.

    SEC. 5. MISSISSIPPI RIVER FORECASTING IMPROVEMENTS.

    (a) In General.--The Secretary, in consultation with the Secretary of the department in which the Coast Guard is operating, the Director of the United States Geological Survey, the Administrator of the National Oceanic and Atmospheric Administration, and the Director of the National Weather Service, as applicable, shall improve forecasting on the Mississippi River by-- (1) updating forecasting technology deployed on the Mississippi River and its tributaries through-- (A) the construction of additional automated river gages; (B) the rehabilitation of existing automated and manual river gages; and (C) the replacement of manual river gages with automated gages, as the Secretary determines to be necessary; (2) constructing additional sedimentation ranges on the Mississippi River and its tributaries; and (3) deploying additional automatic identification system base stations at river gage sites.

    (b) Prioritization.--In carrying out this section, the Secretary shall prioritize the sections of the Mississippi River on which additional and more reliable information would have the greatest impact on maintaining navigation on the Mississippi River.

    (c) Report.--Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to Congress a report on the activities carried out by the Secretary under this section.

    SEC. 6. CORPS OF ENGINEERS FLEXIBILITY IN MAINTAINING NAVIGATION.

    (a) In General.--If the Secretary determines it to be critical to maintaining safe and reliable navigation, the Secretary-- (1) in consultation with the department in which the Coast Guard is operating, may construct ingress and egress paths to docks, loading facilities, fleeting areas, and other critical locations outside of the authorized navigation channel on the Mississippi River; and (2) operate and maintain, through dredging and construction of river training structures, ingress and egress paths to loading docks and fleeting areas outside of the authorized navigation channel on the Mississippi River.

    (b) Mitigation.--The Secretary may mitigate through dredging any incidental impacts to loading or fleeting areas outside of the authorized navigation channel on the Mississippi River that result from operation and maintenance of the authorized channel.

    SEC. 7. MIDDLE MISSISSIPPI RIVER ENVIRONMENTAL PILOT PROGRAM.

    (a) In General.--In accordance with the project for navigation, Mississippi River between the Ohio and Missouri Rivers (Regulating Works), Missouri and Illinois, authorized by the Act of June 25, 1910 (36 Stat. 631, chapter 382) (commonly known as the ``River and Harbor Act of 1910''), the Act of January 1, 1927 (44 Stat. 1010, chapter 47) (commonly known as the ``River and Harbor Act of 1927''), and the Act of July 3, 1930 (46 Stat. 918, chapter 847), the Secretary shall carry out for a period of not less than 10 years, a pilot program to restore and protect fish and wildlife habitat in the middle Mississippi River.

    (b) Authorized Activities.-- (1) In general.--As part of the pilot program carried out under subsection (a), the Secretary shall conduct any activities that are necessary to improve navigation through the project while restoring and protecting fish and wildlife habitat in the middle Mississippi River.

    (2) Inclusions.--Activities authorized under paragraph (1) shall include-- (A) the modification of navigation training structures; (B) the modification and creation of side channels; (C) the modification and creation of islands; (D) any studies and analyses necessary to develop adaptive management principles; and (E) the acquisition from willing sellers of any land associated with a riparian corridor needed to carry out the goals of the pilot program.

    (c) Cost-sharing Requirement.--The cost-sharing requirements under the provisions of law described in subsection (a) for the project described in that subsection shall apply to any activities carried out under this section.

    SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to carry out this Act such sums as are necessary.

    S. 566 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Water Infrastructure Now Public-Private Partnership Act'' or the ``WIN P3 Act''.

    SEC. 2. FINDINGS.

    Congress finds that-- (1) investment in water infrastructure is critical to protecting property and personal safety through flood, hurricane, and storm damage reduction activities; (2) investment in infrastructure on the inland waterways of the United States is critical to the economy of the United States through the maintenance of safe, reliable, and efficient navigation for recreation and the movement of billions of dollars in goods each year; (3) fiscal challenges facing Federal, State, local, and tribal governments require new and innovative financing structures to continue robust investment in public water infrastructure; (4) under existing fiscal restraints and project delivery processes, large-scale water infrastructure projects like the lock and dam modernization on the upper Mississippi River and Illinois River will take decades to complete, with benefits for the lock modernization not expected to be realized until 2047; (5) the Corps of Engineers has an estimated backlog of more than $60,000,000,000 in outstanding projects; and (6) in developing innovative financing options for water infrastructure projects, any prior public investment in projects must be protected.

    SEC. 3. WATER INFRASTRUCTURE NOW PILOT PROGRAM.

    (a) In General.--The Secretary of the Army, acting through the Chief of Engineers, shall establish a pilot program to evaluate the cost-effectiveness and project delivery efficiency of allowing non-Federal interests to carry out authorized flood damage reduction, hurricane and storm damage reduction, and navigation projects.

    (b) Purposes.--The purposes of the pilot program are-- (1) to identify project delivery and cost-saving alternatives that reduce the backlog of authorized Corps of Engineers projects; (2) to evaluate the technical, financial, and organizational efficiencies of a non-Federal interest carrying out the design, execution, management, and construction of 1 or more projects; and (3) to evaluate alternatives for the decentralization of the project planning, management, and operational decision- making processes of the Corps of Engineers.

    (c) Administration.-- (1) In general.--In carrying out the pilot program, the Secretary shall-- (A) identify a total of not more than 15 flood damage reduction, hurricane and storm damage reduction, and navigation projects, including levees, floodwalls, flood control channels, water control structures, and navigation locks and channels, authorized for construction; (B) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives upon the identification of each project under the pilot program; (C) in consultation with the non-Federal interest, develop a detailed project management plan for each identified project that outlines the scope, budget, design, and construction resource requirements necessary for the non- Federal interest to execute the [[Page S1859]] project, or a separable element of the project; (D) on the request of the non-Federal interest, enter into a project partnership agreement with the non-Federal interest for the non-Federal interest to provide full project management control for construction of the project, or a separable element of the project, in accordance with plans approved by the Secretary; (E) following execution of the project partnership agreement, transfer to the non-Federal interest to carry out construction of the project, or a separable element of the project-- (i) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and (ii) additional amounts, as determined by the Secretary, from amounts made available under section 5, except that the total amount transferred to the non-Federal interest shall not exceed the estimate of the Federal share of the cost of construction, including any required design; and (F) regularly monitor and audit each project being constructed by a non-Federal interest under this section to ensure that the construction activities are carried out in compliance with the plans approved by the Secretary and that the construction costs are reasonable.

    (2) Restrictions.--Of the projects identified by the Secretary-- (A) not more than 12 projects shall-- (i) have received Federal funds and experienced delays or missed scheduled deadlines in the 5 fiscal years prior to the date of enactment of this Act; or (ii) for more than 2 consecutive fiscal years, have an unobligated funding balance for that project in the Corps of Engineers construction account; and (B) not more than 3 projects shall-- (i) have not received Federal funding for recapitalization and modernization in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act; and (ii) be, in the determination of the Secretary, significant to the national economy as a result of the impact the project would have on the national transportation of goods.

    (3) Technical assistance.--On the request of a non-Federal interest, the Secretary may provide technical assistance to the non-Federal interest, if the non-Federal interest contracts with the Secretary for the technical assistance and compensates the Secretary for the technical assistance, relating to-- (A) any study, engineering activity, and design activity for construction carried out by the non-Federal interest under this section; and (B) obtaining any permits necessary for the project.

    (4) Waivers.-- (A) In general.--For any project included in the pilot program, the Secretary may waive or modify any applicable Federal regulations for that project if the Secretary determines that such a waiver would provide public and financial benefits, including expediting project delivery and enhancing efficiency while maintaining safety.

    (B) Notification.--The Secretary shall notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives each time the Secretary issues a waiver or modification under subparagraph (A).

    (d) Public Benefit Study.-- (1) In general.--Before entering into a project partnership agreement under this section, the Secretary shall enter into an arrangement with an independent third party to conduct an assessment of whether, and provide justification that, the proposed partnership agreement would represent a better public and financial benefit than a similar transaction using public funding or financing.

    (2) Contents.--The study under paragraph (1) shall-- (A) be completed by the third party in a timely manner and in a period of not more than 90 days; (B) take into consideration any supporting materials and data submitted by the Secretary, the nongovernmental party to the proposed project partnership agreement, and other stakeholders; and (C) recommend whether the project partnership agreement will be in the public interest by determining whether the agreement will provide public and financial benefits, including expedited project delivery and savings to taxpayers.

    (e) Cost Share.--Nothing in this Act affects the cost- sharing requirement applicable on the day before the date of enactment of this Act to a project carried out under this Act.

    (f) Report.-- (1) In general.--Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report detailing the results of the pilot program carried out under this section, including any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.

    (2) Update.--Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an update of the report described in paragraph (1).

    (g) Administration.--All laws (including regulations) that would apply to the Secretary if the Secretary were carrying out the project shall apply to a non-Federal interest carrying out a project under this Act.

    (h) Termination of Authority.--The authority to commence a project under this Act terminates on the date that is 5 years after the date of enactment of this Act.

    SEC. 4. APPLICABILITY.

    Nothing in this Act authorizes or permits the privatization of any Federal asset.

    SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the Secretary to carry out this Act such sums as are necessary.

    ______ By Mr. KIRK (for himself and Mr. Durbin): S. 571. A bill to amend the Federal Water Pollution Control Act to establish a deadline for restricting sewage dumping into the Great Lakes and to fund programs and activities for improving wastewater discharges into the Great Lakes; to the Committee on Environment and Public Works.

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