Good afternoon, Chairman Oberstar, Ranking Member Mica and Members of the House Transportation and Infrastructure Committee. I am David R. Conrad and I serve as Senior Water Resources Specialist for the National Wildlife Federation, the nation's largest conservation education and advocacy organization with over 4 million members and supporters and conservation affiliate organizations in forty-seven states and territories. We deeply appreciate the interest and work of this Committee in providing oversight of the Corps of Engineers program, and particularly regarding the implementation of the policy reform provisions of the 2007 WRDA.

The Federation has a long history of interest and involvement in the management and protection of the nation's heritage of water resources and the programs of the Corps of Engineers. We were actively involved in the development of a number of the WRDA legislative reforms. We were extremely hopeful that the WRDA 2007 reforms would harbinger in a new era of more enlightened and environmentally-sensitive water resources project planning and implementation. And yet, our testimony today reflects major concern that, thus far, we have not seen the robust change in direction and outcomes that we had hoped for, and we are further concerned that even the intention of change that we firmly believed was embodied in Congress' new directives seems to be lagging in the agency and its on-going products.

In this testimony, we wish to address particularly what we have seen regarding implementation in three of what we believed to be among the most critical WRDA reform areas: independent peer review (Section 2034), mitigation for fish and wildlife and wetlands losses (Section 2036), and revision of the Water Resources Principles and Guidelines (Section 2031) of WRDA 2007. n1 We have reviewed the guidance and the extensive amount of other material provided by Assistant Secretary Darcy and the Corps in response questions submitted on November 19, 2009 by Senators Feingold, McCain, Carper, Lieberman, Cardin, and Landrieu. In addition, we have conferred with conservation leaders across the country on their experiences regarding many of the projects identified in the documents and the WRDA policy reforms.

On the whole, we have found that to date the implementation of these provisions is in many cases barely underway, guidance that has been prepared in many ways falls short, in some cases far short, of what we believe Congress and the law intended and the objectives sought in the WRDA reforms are still mostly unimplemented.

I. Independent Peer Review.

Mr. Chairman, the WRDA 2007, for the first time in law, established a standardized independent peer review process for costly or controversial Corps projects and a safety assurance review to examine the detailed technical designs and construction activities for certain high risk flood and storm damage protection projects. Section 2034 of WRDA 2007 required "independent peer review" to be conducted by an independent panel of experts from outside the agency, in general, on a mandatory basis for projects costing more than $45 million, projects where a Governor of an affected state requests, and projects where the Chief of Engineers determines the project is controversial, and, on a discretionary basis, where the head of a Federal or State reviewing agency determines the project is likely to have an adverse impact on environmental, cultural or other resources under the agency's jurisdiction and the agency head requests such a review.

As part of the basis for Congress establishing these requirements, in 2006 the Government Accountability Office had reported to Congress that recent Corps studies "did not provide a reasonable basis for decision-making" because they "were fraught with errors, mistakes, and miscalculations, and used invalid assumptions and outdated data." GAO also testified that these failings were "systemic in nature and therefore prevalent throughout the Corps Civil Works portfolio." This confirmed a pattern of egregious planning flaws that had been revealed by more than a decade of National Academy of Sciences, GAO, Army Inspector General, and other independent expert reports. Since then other extensive reports such as the National Research Council reviews of safety and engineering and new plans for the Coastal Louisiana Hurricane and Storm Damage flood control systems and the economics of the Upper Mississippi and Illinois River Lock expansion proposals have continued to emphasize the critical importance of independent reviews of project planning and implementation.

Independent Peer Review Experience Since WRDA 2007

As of the January 20, 2010, responses to Senators' Questions from last November, the Corps reports there they have spent approximately $3 million on 15 Independent External Peer Review (IEPR) studies that are either now in process or (in five of the instances) where final IEPR reviews have been completed. With this small sample, there is not enough experience to make firm and final judgments on either the independence and flexibility of the process to allow panels to conduct the in-depth reviews that may improve the quality of planning or even how effective they will ultimately be. However, from the handful of independent review reports and the Corps' information, we can offer a few observations on what we see at this juncture of implementation of the statute.

First, to its credit, the Corps has taken peer review of its planning and decision documents even more broadly than WRDA 2007 required. Peer review is being woven into decisions at the District level and beyond the District level for all projects, not just those requiring independent panel reviews. In general we strongly applaud these concepts as a significant step forward, hopefully, to improve the quality of project planning.

Public Not Involved

What we have found, however, is that the process has been highly obscure and in most cases almost completely out of the public eye. We believe this weakens the value of the process and in all likelihood the public's confidence in it.

Among the most disturbing information provided by the Corps in its summary [Enclosure 3] of the first 14 IEPR efforts, is the flat admission that in 13 of the 14 on-going or completed IEPR cases and in four of the five "completed" cases, the Corps reports that the reviewers have not "taken any public testimony or otherwise obtained public input."

Section 2034 (d) of WRDA 2007 requires panels to "receive from the Chief of Engineers the public written and oral comments provided to the Chief of Engineers" as among panels' duties. n2 In the National Research Council's 2002 Section 216 report, "Review Procedures for Water Resources Project Planning," the panel recommended in their framework for implementing independent external reviews that the entity that would manage the review system "should facilitate communication between review panels and appropriate other federal agencies, interest groups, and the public." n3 In the Corps Guidance document EC 1105-2-410 of August 22, 2008, titled Review of Decision Documents and implementing the Corps' review process including Section 2034 of

Appendix B includes the following:

(12) Opportunity for Public Participation. Whenever feasible and appropriate, the office producing the document shall make the draft decision document available to the public for comment at the same time it is submitted for review (or during the review process) and sponsor a public meeting where oral presentations on scientific issues can be made to the reviewers by interested members of the public. When employing a public comment process, the PCX shall, whenever practical, provide reviewers with access to public comments that address scientific or technical issues. To ensure that public participation does not unduly delay USACE activities, the PCX shall clearly specify time limits for public participation throughout the review process. n4 n5 (Emphasis added).

It is clear that while Section 2034 requires the Chief of Engineers to provide the public's "written and oral comments" to the independent external review panels, the Corps' Guidance says such information will only be provided "whenever feasible and appropriate" or "whenever practical." Furthermore, since August of 2008, while the Corps has reserved the "opportunity for public comment" for oral presentations on scientific issues to panels, according to the Corps, in 13 of 14 panels this has not (at least yet) been done. In these 13 cases, the Review Management Organization has been a single contractor, Battelle Memorial Institute. We are concerned that while the Corps guidance provides for potential public hearings and opportunity for comment to panels, public comments are already not finding their way to the panels and it there is no assurance that such input will be allowed or utilized in the future.

In addition, while reviews are listed as "ongoing" in the Corps' Enclosure 3, in nine cases, the Corps indicates a "list of reviewers and their credentials" is "not yet available." If the names and credentials of reviewers are not easily obtainable and information about when and where panels will conduct their reviews is not easily obtainable, the even if the public has relevant and important information to make available to panels, the public will be unable to avail the opportunity to share the information. We spoke with numerous conservation organization activists and state officials across the country in the past few weeks about a number of the "ongoing" reviews, and found that they were in most instances completely unaware of the review processes or who the reviewers were and what their charges were. Many of these individuals are among the most knowledgeable conservation leaders on such matters and they were greatly surprised to hear that the reviews were underway and that they had not previously heard of them.

In the one instance of which we are aware where public testimony was taken, review of the project for Louisiana Coastal Protection Restoration (LACPR), which is cited in Enclosure 3 in the January Answers to Questions, the National Research Council was the organization that fielded the expert panel. Three public sessions were held and NRC procedures which encourage public participation were followed. In this instance, while concerns were raised that this review started further into the planning process than was ideal to give the Corps feedback in their overall framing of this complex project formulation, the public gave important and very valuable testimony and perspective that substantially impacted the final IEPR report.

Charges To Reviewers May Conflict With WRDA Requirements

We are concerned that recent Guidance creates conditions where charges to IEPR panels could be in conflict with WRDA requirements. The most recent guidance in Civil Works Review Policy EC 1165-2-209 states:

c. Charge. When preparing to initiate review of a USACE product, the "charge" to the reviewers on both the ATR teams and IEPR panels will contain the instructions regarding the objective of the review and the specific advice sought. Review should be conducted to identify, examine, and comment upon assumptions that underlie analyses (i.e. public safety, economic, engineering, environmental, real estate, and others) appropriate to the "charge," as well as to evaluate the soundness of models and analytic methods. Panels should also be able to evaluate whether the interpretations of analyses and conclusions are reasonable. To provide effective review, in terms of both usefulness and credibility of results, the charge should give reviewers the flexibility to bring important issues to the attention of decision makers. However, reviewers should be explicitly instructed in the charge to not make a recommendation on whether a particular alternative should be implemented, as the Chief of Engineers is ultimately responsible for the final decision on USACE work products. The RMO is responsible for preparing the charge. n6

The Conference Report to WRDA 2007 addressed the charge to panels in this way:

Sections 2034(a)(2) and 2034(d) establish the duties of the independent peer review panel and the scope of review for a project study. The managers have defined the scope of review broadly to allow the independent review panel to examine all of the economic and environmental assumptions and projections, project evaluation data, economic analyses, environmental analyses, engineering analyses, formulation of alternative plans, methods for integrating risk and uncertainty, models used in evaluation of economic or environmental impacts of proposed projects, and any biological opinions of the project study. The managers expect the independent peer review panel to review those components of a project study for which the panel believes there is a reason for review. The managers do not expect the independent peer review panel to review components of the project study where the panel determines there is no controversy, disagreement, or concern. . . . The managers recognize that the recommendations of the independent review panel are advisory; however, the managers expect the Corps to give full consideration to the findings of the independent review panel.

By appearing to restrict the purview of IEPRs to only assumptions "appropriate to the 'charge' and instructing panels "not to make a recommendation on whether a particular alternative should be implemented," it appears that the guidance may unduly restrict the reach of a panel to explore those issues which it believes are relevant and important to their reviews.

Information Not Easily Accessible

WRDA Section 2034(f)(2)(A) provides that the Chief of Engineers, after receiving an IEPR report, "shall . . . make a copy of the report and any written response . . . available to the public by electronic means, including the Internet;." The Corps' recent Guidance requires the development of Review Plans, which are described as the "lynchpins" for "ensuring product credibility and accountability." n7 Home Districts are required to post these on their public websites and provide opportunity for public comment. The Review Plans are required to "anticipate and define the appropriate level of review from the very start of the effort based upon a preliminary assessment of where project risks are most likely to occur and the magnitude of what the risk might be" and also provide a range of details about any anticipated reviews that are expected, including IEPRs. They are also required to be updated as project planning proceeds.

In our internet search for the review plans associated with Enclosure 3 projects, we found some were accessible, but many were difficult or impossible to find on District Office websites. Because these plans are the portals for describing to the public the details of the review process, we believe much more should be done to make Review Plans readily accessible.

Independent External Peer Review Budget

Finally, the Federation has some concerns that plans to greatly expand IEPR reviews in FY 2010 will need substantial funds to meet the increased costs, and it is unclear whether all such funds are fully anticipated. Enclosure 4 of the January Answers to Senators' Questions identifies 52 new Civil Works studies for which independent review is expected to be initiated by the end of FY 2010. Of the five IEPR studies that are reported to have been completed in Enclosure 3, the average cost of the studies was $228,000. The Administration's budget for FY 2011 requests $700,000, a reduction of $152,000 from the FY 2010 allocation of $852,000.

While the newest Corps Guidance EC 1165-2-209 states that "starting in FY 2010, the costs for any anticipated IEPR will be requested by study (or project) as part of the normal budget development process," n8 it is not clear from individual budget justifications what IEPR costs are in fact anticipated. We would urge the Committee to assure that budgeting and funding will be sufficient to cover required External Peer Reviews.

II. Mitigation for Civil Works Projects

WRDA 2007 established strict mitigation standards and planning requirements for Corps civil works projects. These mitigation reforms were designed to address the following fundamental flaws in civil works mitigation.

First, the reforms were intended to ensure that mitigation was in fact proposed and implemented for all Corps projects with more than negligible impacts on fish and wildlife. While this requirement has been in place since 1986, n9 the Government Accountability Office reports that the Corps failed to implement any mitigation at all for 69 percent of projects constructed between 1986 and 2001, n10 including projects with undeniably significant impacts. n11

Second, the reforms were intended to ensure that the Corps proposed and implemented the right kind and amount of mitigation needed to replace the same type of habitat lost to a Corps project and to restore the ecosystem functions and values of that habitat. Historically, the Corps would often propose mitigating impacts to wetlands, streams, and riparian habitat with fewer acres of more common terrestrial habitat. This out-of-kind mitigation by definition cannot replace lost functions, and cannot meet the Corps' statutorily mandated goal of no net loss of wetland acres. n12

Third, the reforms were intended to ensure that detailed mitigation planning was undertaken during the study process so that a realistic expectation of the ability to successfully mitigate adverse impacts and the true costs of mitigation would become an integral component of plan selection. Historically Corps studies have identified only the amount of mitigation that would be undertaken, while leaving all mitigation planning for a later date. Lack of a detailed mitigation plan makes it impossible to evaluate the potential for mitigation to successfully replace the lost habitat, functions, and values or to calculate the true cost of implementing that mitigation.

Fourth, the reforms were intended to ensure that the mitigation worked as promised by requiring monitoring, consultations, and contingency plans to ensure ecological success. Historically, the Corps has made little effort to evaluate whether its mitigation efforts were successful in replacing lost habitat and lost ecosystem functions and values. n13 Instead, the Corps would look to the amount of money that had been spent to determine whether or not mitigation was "complete." n14

Congress should ensure the strictest possible compliance with the WRDA 2007 mitigation reforms to address these mitigation failings, and to help ensure that the Corps is taking all steps necessary to plan and construct the least environmentally damaging projects possible.

Regrettably, the Federation's review of the WRDA 2007 implementing guidance and the mitigation plans developed by the Corps since enactment (as provided to this Committee) demonstrate that the Corps has not yet complied with even the most basic of the critical mitigation mandates that were enacted almost two and a half years ago.

Standards and Planning Requirements for Civil Works Mitigation

The WRDA 2007 mitigation reforms: (1) establish minimum mitigation standards for civil works projects; (2) set forth the elements that must be included in each mitigation plan; (3) require the Corps to monitor civil works mitigation until ecological success is achieved and to consult yearly with state and federal resource agencies on the progress being made for each civil works mitigation plan; and (4) require the Corps to submit yearly status reports on its mitigation efforts. n15 These standards and requirements must be satisfied in all Corps studies ongoing as of, or initiated after, November 8, 2007. n16

Mitigation Standards: Corps civil works projects are subject to the following minimum mitigation standards.

(a) The Corps must implement mitigation for fish and wildlife losses unless the Corps makes a specific finding that the project would cause only "negligible adverse impacts to fish and wildlife." n17

(b) The Corps must implement not less than in-kind mitigation. This means that the mitigation must restore the same or greater ecosystem and habitat values as those lost to the civil works project. Specifically, the Corps must implement in-kind mitigation for damage to bottomland hardwood wetlands, and it must mitigate impacts to other habitat types "to not less than in-kind conditions, to the extent possible." n18 The Corps' engineering regulations also require that adverse impacts to wetlands be "fully mitigated." n19

(c) The Corps must comply with Clean Water Act [Sec.] 404, the Clean Water Act 404(b)(1) Guidelines, and the mitigation requirements applied to other governmental entities and private parties under the Clean Water Act [Sec.] 404 regulatory program. n20 To do this, the Corps must first avoid impacts, then minimize any impacts that cannot be avoided, and then implement compensatory mitigation to offset any remaining damage. n21 To comply with these requirements, civil works mitigation plans must comply with the Federal mitigation rule on Compensatory Mitigation for Losses of Aquatic Resources n22 in addition to the mitigation planning requirements in 33 U.S.C. [Sec.] 2283(d).

Mitigation Plans: Since 1986, the Corps has been required to submit a "specific plan to mitigate fish and wildlife losses" with every project the Corps recommends to Congress, unless the Corps makes a specific finding that the project would cause only "negligible adverse impacts to fish and wildlife." n23 WRDA 2007 expanded this to require the inclusion of detailed mitigation plans in any project report in which the Corps recommends a project alternative.

WRDA 2007 also set forth the following specific elements that must be included in each mitigation plan:

(a) The type, amount, and characteristics of the habitat being restored, a description of the physical actions to be taken to carry out the restoration, and the functions and values that will be achieved;

(b) The ecological success criteria, based on replacement of lost functions and values including hydrologic and vegetative characteristics, that will be evaluated and used to determine mitigation success;

(c) A description of the lands and interest in lands to be acquired for mitigation, and the basis for determining that those lands will be available;

(d) A mitigation monitoring plan that includes the cost and duration of monitoring, and identifies the entities responsible for monitoring if it is practicable to do so (if the responsible entity is not identified in the monitoring plan it must be identified in the project partnership agreement that is required for all Corps projects); and

(e) A contingency plan for taking corrective action in cases where monitoring shows that mitigation is not achieving ecological success as defined in the plan. n24

Mitigation Monitoring and Consultation: WRDA 2007 establishes detailed mitigation monitoring and consultation requirements for Corps projects. The Corps (or a delegated entity) must monitor mitigation for each civil works project until the monitoring demonstrates that the ecological success criteria established in the project's mitigation plan have been met. n25 The ecological success criteria, which are a required component of each mitigation plan, are to be based on replacement of lost functions and values.

The Corps also must consult yearly on each project with the appropriate federal agencies and the states on the status of the mitigation efforts. The consultation must address the status of ecological success on the date of the consultation, the likelihood that the ecological success criteria will be met, the projected timeline for achieving that success, and any recommendations for improving the likelihood of success. n26

Mitigation Reporting: WRDA 2007 requires the Corps to report to Congress each year on the status of its civil works mitigation. n27 The mitigation status report must provide mitigation information - including the results of its yearly mitigation consultations - for all projects that are under construction, all projects that have undergone or completed construction but for which mitigation has not been completed, and all projects for which construction funding is requested for the next fiscal year. The status report is to be submitted with the President's proposed budget request for the Corps, and must be made available to the public, including on the internet. A meaningful report on the status of mitigation requires both a quantitative and a qualitative evaluation of the type, amount, and ecological success of the mitigation implemented for each project. The Federation notes that the Corps has not provided adequate quantitative or qualitative data in the two mitigation status reports it has submitted to date.

The Corps Is Not Complying With the Mitigation Mandates Established By Congress

As noted above, the Federation reviewed the materials on mitigation provided to Congress on November 19, 2009 by Assistant Secretary Darcy and the Corps. Our review of the guidance, mitigation plans, environmental analyses and other materials provided by the Corps demonstrate that the Corps has made little progress in complying with even the most basic provisions of the mitigation reforms.

The Corps has also failed to provide ready public access to critical planning documents, mitigation plans, planning guidance, and mitigation status reports that are essential if the public is to be able to evaluate the Corps' compliance with its mitigation requirements. Many of the documents referenced by the Corps in its response to Congress were not provided to Congress and are not available on the Corps' website. Other key mitigation documents, including mitigation status reports, are virtually impossible to locate on the Corps' website.

An accurate assessment of impacts and an accurate evaluation of the type and amount of needed mitigation are fundamental prerequisites to sound and effective mitigation planning. However, because a comprehensive analysis of the adequacy of an impacts analysis and the type and amount of mitigation requires extensive resources and project specific expertise, an evaluation of those issues is beyond the scope of this testimony, and in most cases, our comments do not address these issues. Our comments include a discussion of these critical issues only where we have sufficient independent knowledge to make an informed evaluation. The Federation wishes to stress that the absence of comments or critiques on project impacts or on the amount or type of proposed mitigation does not indicate an agreement with the Corps' analyses or determinations on these issues.

A. The Corps is Imposing Improper Hurdles on Mitigation Planning that Could Have Profound Affects on the Adequacy of Proposed Mitigation

The Corps has created improper hurdles on mitigation planning that almost certainly will result in the Corps proposing far less mitigation than is required to replace the habitat and ecosystem functions and values lost to a civil works project. The requirements imposed by these hurdles will also mask the true impacts and costs of individual civil works projects.

(1) The Corps is Improperly Requiring Mitigation Only for Impacts to "Significant" Resources

At least some Corps districts are clearly applying an incorrect standard for mitigation planning that could have profound effects on the amount and type of mitigation proposed for Corps projects. In December 2009, the Corps' Galveston District wrote:

"Central to mitigation planning is the determination of significance, as mitigation is required only for impacts to significant resources. Significance must be based upon the contribution of the resource to the Nation's economy, and technical, institutional and/or public recognition of the value the resource. Criteria for determining significance include, but are not limited to, scarcity or uniqueness of the resource from a national, regional, state, or local perspective." n28

Fundamental to this approach is the conclusion that impacts to resources that are not nationally or otherwise "significant" need not be mitigated. This could result in the Corps failing to mitigate for the damage caused to innumerable resources across the country.

A requirement to mitigate only for so-called "significant" resources has absolutely no basis in law. Indeed, no variation of the word "significance" appears in the mitigation reform provisions of section 2036(a) of WRDA 2007 or in 33 U.S.C. [Sec.] 2283 where that section is codified.

The mitigation requirements are quite clear, and are not tied to, driven by, or affected in any way by, the so-called "significance" of the affected resource. The Corps is required to "mitigate fish and wildlife losses created by" a civil works project; to ensure in-kind mitigation for impacts to bottomland hardwoods forests and to mitigate impacts to "other habitat types" to not less than in-kind conditions to the extent possible; and to comply with the requirements of the Clean Water Act regulatory program "to mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from" water resources projects. n29

In short, the Corps' conclusion that mitigation is needed only for impacts to significant resources is simply incorrect, and any mitigation proposal based on requiring mitigation only for significant resources is not in compliance with the law. n30

(2) The Corps is Improperly Allowing Mitigation Only to the Extent that the Mitigation Can Be Incrementally Justified

The Corps' August 2009 implementing guidance for section 2036(a) of WRDA 2007 states the Corps "will continue to utilize the mitigation planning process described in ER 1105-2-100 in order to compensate for non-negligible impacts to aquatic and terrestrial resources to the extent incrementally justified . . . ." n31 The Corps' determination that mitigation should be allowed only "to the extent incrementally justified" does not comply with the law.

To the contrary, the civil works mitigation requirements are not tied to, or driven in any way by, an incremental cost justification. The Corps is required to "mitigate fish and wildlife losses created by" a civil works project; to ensure "in-kind" mitigation for impacts to bottomland hardwoods forests and to mitigate impacts to other habitat types "to not less than in-kind conditions" to the extent possible; and to comply with the requirements of the Clean Water Act regulatory program "to mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from" water resources projects. n32

Moreover, as a matter of law, the benefits of such mitigation activities are deemed to be at least equal to the cost of those activities, and thus are always deemed to be justified:

"In the evaluation of the Secretary of the benefits and costs of a water resources project, the benefits attributable to measures included in a project for the purpose of environmental quality, including improvement of the environment and fish and wildlife enhancement, shall be deemed to be at least equal to the costs of such measures." n33

As a result, it is improper to require an incremental justification for mitigation efforts, and the Corps may not pick and choose the type and amount of mitigation based an incremental analysis of the additional costs associated with implementation.

B. The Corps is Ignoring Clear Mitigation Monitoring Requirements

The Corps' implementation guidance for section 2036(a) of WRDA 2007 states that "[m]ost mitigation measures will only require periodic inspection as part of normal operations and maintenance (O&M) to monitor to determine if ecological success is being achieved." n34 This directive is completely at odds with the critically important monitoring requirements established in WRDA 2007.

Congress made it clear that mitigation for civil works projects must be monitored until the monitoring demonstrates that the ecological success criteria established in the project's mitigation plan have been met. n35 Ecological success criteria are to measure whether the mitigation is in fact replacing the habitat and ecosystem values and functions lost to a civil works project. Ecological success criteria are to include (but are not limited to) hydrologic and vegetative characteristics.

The Corps' blanket statement that most monitoring can be carried out during periodic inspections associated with normal operations and maintenance activities is incomprehensible in light of these detailed monitoring requirements. For example, for many projects normal operations and maintenance involves little more than mowing grass on a levee or inspecting the project to ensure that it is structurally sound.

Legitimate monitoring will require far more than "periodic inspection as part of normal operations and maintenance." Monitoring to establish ecological success must be carried out by qualified scientists and ecologists through tests (including surveys and data gathering) and a schedule designed to allow an accurate assessment of progress towards the ecological success criteria. And, as a matter of law, monitoring must continue until the ecological success criteria have been met.

Unless legitimate monitoring takes place, the Corps, federal and state resource agencies, the local sponsor, and the public will not be able to assess whether the mitigation is in fact replacing the habitat destroyed or damaged by a civil works project. It will also be impossible to determine whether the mitigation contingency plans should be implemented. Legitimate monitoring is also critical to ensure that mitigation proposals are more than false promises used to undermine a full and honest assessment of the benefits and costs of civil works projects.

C. The Corps is Not Complying With its Mitigation Consultation Requirements

Despite having had almost two and a half years to develop and implement a process for carrying out its yearly mitigation consultation requirements, the Corps still has not begun this process, and has not even finalized its internal guidance (which currently contains just 5 paragraphs of text).

The historic problems with civil works mitigation (and with mitigation under the Clean Water Act [Sec.] 404 regulatory program) make it imperative that the Corps comply strictly with the consultation requirements established by WRDA 2007. It is critical that the expertise of the federal, state, and tribal resource agencies be brought to bear in determining whether or not the significant adverse impacts of civil works projects are being effectively mitigated. Congress should ensure that the Corps fully implements the consultation process as quickly as possible, and certainly this year.

D. The Corps is Not Complying With its Mitigation Plan Requirements

In response to a request for the mitigation plans and environmental documentation for each project report issued in draft or final form after enactment of WRDA 2007, the Corps provided Congress with materials on 32 projects. The Federation's review of these materials demonstrates that the Corps has not yet complied with even the most basic mitigation planning requirements enacted in WRDA 2007.

The Federation again notes that we did not evaluate the adequacy of the evaluation of project impacts or of the amount or type of mitigation proposed by the Corps, and we wish to stress that the absence of comments or critiques on these issues does not indicate an agreement with the Corps' analyses or determinations. The following portion of our testimony includes a discussion of these critical issues only where we have sufficient independent knowledge to make an informed evaluation.

Of the 32 projects identified by the Corps as falling within the parameters of the November 17, 2009 Congressional request for information, the Corps failed to provide either a mitigation plan or documentation on project impacts for 9 of the 32 projects, and that information was not readily available on line. n36 As a result, it was not possible to determine whether those projects complied with the WRDA 2007 mitigation requirements.

The documentation for six additional projects suggests that impacts to fish and wildlife and to terrestrial and aquatic habitat could be negligible, and as result, these projects did not include mitigation plans. If we assume that the environmental documentation for these projects is accurate, they would not require mitigation plans. n37

Of the remaining 17 projects all are out of compliance with the mitigation provisions established by WRDA 2007, and most are egregiously out of compliance. Six of these projects clearly require mitigation plans as a matter of law but do not have them. The remaining 11 projects have mitigation plans that fail to include key mitigation plan requirements or fail to comply with other mitigation planning provisions. The status of the mitigation planning for these 17 projects is summarized below.

1. IWW-Starved Rock Pool, Bull's Island Navigation O&M, IL. This project has no mitigation plan even though the Corps acknowledges that mitigation is required and purchased mitigation bank credits. Where a project requires mitigation, a mitigation plan is required by law even if a mitigation bank is ultimately used to implement the mitigation.

2. Lackawanna River Local Flood Protection Project, Scranton, PA. The Corps acknowledges that the project will produce more than negligible impacts and provided a document that it claims satisfies the mitigation plan requirements. However, that document is not a mitigation plan, but instead provides a list of recommended actions that would allow the city of Scranton to come into compliance with the National Flood Insurance Program for those portions of the city that would not be protected by the project (because levees or floodwalls could not be cost-justified to protect these areas).

3. Louisiana Coastal Area, Beneficial Use of Dredged Material Program, LA. This project has no mitigation plan even though the Corps acknowledges that the project will have more than negligible impacts. Where a project has more than negligible impacts, a mitigation plan is required as a matter of law. n38

4. South Sacramento County Streams Project, Unionhouse Creek Channel Upgrades, CA. This project has no mitigation plan even though the Corps acknowledges that mitigation is required and purchased mitigation banking credits for the project. n39 Where a project requires mitigation, a mitigation plan is required by law even if a mitigation bank is ultimately used to implement the mitigation.

5. Upper Trinity River -Central City, TX. This project has no mitigation plan even thought the Corps acknowledges that one is required and that a new project alternative was selected in a supplemental environmental impact statement issued in March 2008. While the Corps has advised Congress that a new mitigation plan is under development, the Corps has selected an alternative in direct violation of the WRDA 2007 prohibition against doing so without a detailed mitigation plan. In January 2010, the Corps awarded a $3.2 million construction contract for Phase 2 of this project. n40

According to the final supplement No. 1 to the environmental impact statement for this project, the newly recommended alternative (the Modified Central City alternative) would impact 18.3 acres of riparian woodland, 59.0 acres of upland woodland, 0.8 acres of emergent wetland habitat, and 2.3 acres of stream habitat. Mitigation is estimated to cost $3.12 million based on a modified estimate of the cost of mitigation for the originally recommended plan. The newly recommended plan is estimated to reduce impacts from the original plan.

6. West Onslow Beach and New River Inlet (Topsail Beach) NC. This project has no mitigation plan even though the Corps acknowledges that one is required and the public and agency comment period on the draft environmental impact statement did not end until November 2008 (the draft environmental impact statement appears to have been first issued in 2006). The Corps has advised Congress that a mitigation plan is under development.

According to the draft environmental impact statement, this shore protection project may affect the following species listed as threatened and endangered under the Federal Endangered Species Act: the hawksbill sea turtle, Kemp's ridley sea turtle, leatherback sea turtle, loggerhead sea turtle, green sea turtle, piping plover, and seabeach amaranth. The project will also impact benthic species and habitat.

7. Boston Harbor Deep Draft Navigation Improvement Project, Boston, MA. There is no compensatory mitigation plan for this project despite the extensive dredging, blasting, and disposal work that will be involved, and experiences referred to in the draft environmental impact statement regarding large scale fish kills during similar types of blasting activities. The only mitigation proposed are efforts designed to avoid and minimize impacts, and even these mitigation efforts are not outlined in detailed.

According to the draft supplemental environmental impact statement for this project, it will involve deepening the main channel of Boston Harbor by 5 to 10 feet, deepening three additional channel stretches, and deepening two existing shipping berths from 3 to 5 feet. The project will require the disposal of between 6.6 and 14.8 million cubic yards of parent material, and rock blasted from the project area would total between 450,000 and 1.4 million cubic yards. Impacts from these activities certainly will include benthic habitat disturbance, impacts to fish and wildlife, and permanent loss of channel bottom.

8. Brevard County, Hurricane and Storm Damage Reduction Project Mid-Reach Segment, FL. The mitigation plan for this project is quite detailed, and includes an extensive monitoring plan. However, even this detailed plan fails to require monitoring until ecological success is demonstrated and contains only the vaguest reference to contingency planning. Under this plan, monitoring surveys will take place prior to, and at years 1, 2, 3, and 5 after, initial construction to determine the degree to which the mitigation reef is replicating the ecological functions of a natural near shore reef. If these surveys demonstrate significant trends that are adverse or inconsistent with the project's predicted performance, adaptive actions are to be taken. However, this contingency plan is extremely vague and states only that adaptive actions "may consist of additional monitoring, analysis, and/or modifications to the project plan, subject to coordination between the Corps of Engineers, non-federal sponsor and the relevant regulatory agencies."

According to the Draft Integrated General Reevaluation Report and Supplemental Environmental Impact Statement, this shoreline protection project will directly or indirectly bury approximately 3.0 acres of near shore rock hardbottom with 573,000 cubic yards of sand. The proposed mitigation will create 4.8 acres of artificial reef that is intended to restore about 75% of the ecological functions lost to the project.

9. Cedar Hammock / Wares Creek, FL. The mitigation plan for this project does not meet the mitigation plan requirements. Indeed, no actual mitigation plan is provided. Instead, the final environmental assessment includes only a one paragraph description of the proposed mitigation. Comments submitted by the Environmental Protection Agency state that the proposed mitigation does not satisfy the Federal mitigation requirements under Clean Water Act [Sec.] 404, and that an additional 12 acres of stream bottom impacts must also be mitigated. The mitigation description fails to include: the functions and values to be achieved by the mitigation; ecological success criteria based on replacement of lost functions and values; a mitigation monitoring plan; and a contingency plan.

According to the environmental assessment, this project would affect 1.08 acres of mangroves and a mangrove-colonized sand island identified as Essential Fish Habitat. The proposed mitigation involves the local sponsor paying to restore 2.53 acres at an existing restoration project. The mitigation would be carried out on lands purchased by the State of Florida and Manatee County to protect it from development and restore it to natural conditions. Restoration is to be "primarily be accomplished by the removal of exotic vegetation, restoring a sand/shell berm to natural grade, installing culverts under an existing road to provide tidal connection and re-planting selective areas with native vegetation."

10. Chesapeake and Delaware Canal Trail Project, New Castle County, Delaware and Cecil County, MD. The mitigation plan for this project does not meet the mitigation plan requirements. For example, the plan fails to include: a description of the functions and values that will be achieved from the mitigation; ecological success criteria based on replacement of lost functions and values; the basis for determining that the lands identified for mitigation will be available; a mitigation monitoring plan (though it does identify the entity responsible for monitoring); and a contingency plan.

According to the Corps' environmental documentation, this trail construction project will impact approximately 2.2 acres of wetlands. The proposed mitigation is to restore 17 acres of wetlands located adjacent to the trail to satisfy the state's requested 10:1 mitigation ratio for the projects. The plan will take approximately 3 years to carry out and will involve a combination of spraying herbicides and burning to remove low value vegetation and allow "volunteer" higher quality plant species to colonize the sprayed mitigation area.

11. City of Topeka, Flood Risk Management Study, KS. The mitigation plan for this project does not meet the mitigation plan requirements. For example, the plan fails to include: the functions and values to be achieved by the mitigation; ecological success criteria based on replacement of lost functions and values; a detailed monitoring plan or the costs of that monitoring plan (the plan includes a very general, 1 paragraph description of monitoring); and a contingency plan.

According to the environmental documentation, this project will destroy 7.5 acres of floodplain forest. The proposed mitigation involves planting native and mast producing trees on 15 acres of disturbed flood plain land that is owned by the city of Topeka, the local project sponsor.

12. Craney Island Expansion, Norfolk Harbor and Channels, Norfolk, VA. The mitigation plan for this project does not meet the mitigation plan requirements. For example, the plan fails to include: a description of the function and values to be achieved through the mitigation; ecological success criteria based on replacement of lost functions and values; the basis for determining that the lands identified for wetlands mitigation will be available; a mitigation monitoring plan, and a contingency plan.

This project will cause a significant loss of habitat. According to the Corps' environmental documentation, this project would destroy 522 acres of marine bottoms. The proposed mitigation includes 56 acres of wetland creation, 20 acres of oyster reef restoration, and sediment remediation in a 3 mile segment of the Southern Branch, which together are to provide 487 acres of compensatory mitigation. As of October 2009, mitigation costs were estimated at $63.5 million (up from $50.2 million in the conceptual mitigation plan included in the 2006 final supplemental EIS) and mitigation will take 10 years to complete.

13. Delaware River Main Stem and Channel Deepening Project, DE, PA, and NJ. The documentation provided by the Corps for this project does not satisfy the mitigation mandates established in WRDA 2007. That documentation states only that the project will purchase NOx emission reduction credits from within non-attainment areas to mitigate for air pollution impacts from the project. The Corps cannot prepare an adequate mitigation plan for this project until it prepares a supplemental environmental impact statement that fully analyzes the many significant impacts of this project.

Some of the many potential threats from this project include the following. The dredging may resuspend toxic sediments with serious threats to fish and wildlife, including the bald eagle and peregrine falcon. The disposal of contaminated sediments would also cause significant impacts and these impacts will remain unknowable until the Corps develops a disposal plan. Even if there were no contaminants, the dredging activities would cause major disruptions and threats to aquatic wildlife, including horseshoe crabs; oysters; migratory shorebirds; and a variety of fish species including winter flounder, finfish, and shortnose sturgeon. The dredging also threatens key food sources, shelter, spawning, and nursery habitat for fish.

14. Herbert Hoover Dike Partial Reach 1 and 2 Ditch Backfill & Culvert 14 Removal, FL. While the mitigation plan for this project is very basic, it does address many of the key mitigation plan requirements. However, even this mitigation plan does not describe the functions and values that will be achieved, does not address the cost of monitoring, and does not provide the basis for a determination that the mitigation lands are available for acquisition (or are already owned).

According to the Corps' final environmental assessment, this project will remove approximately 3.2 acres of low quality wetlands. The proposed mitigation will remove exotic vegetation from a total of approximately 9 acres on two wetland sites.

15. Mississippi Coastal Improvements Program, MS. The mitigation plan for this project does not meet the mitigation plan requirements. The plan provided to Congress consists only of a general discussion of the impacts requiring mitigation and the amount of mitigation that might be proposed. None of the mandatory mitigation plan elements are addressed in this discussion.

According to the Comprehensive Plan and Integrated Programmatic Environmental Impact Statement for this program, a number of the recommended activities will cause both direct and indirect losses of tidal and non-tidal wetlands that will require mitigation. This includes direct losses of approximately 222 acres of tidal wetlands, 483 acres of non-tidal wetlands, and 62 acres of open water bottoms. Alternative alignments of the numerous projects included in this program are being evaluated that might reduce these projected impacts. The study does recognize that mitigation planning must take place.

16. Sabine-Neches Waterway Channel Improvement Project, TX, LA. Critically, the entire approach to mitigation planning in this study is flawed. The study recommends mitigation only for "significant" resources and selected the mitigation through an incremental cost justification process. As discussed earlier in this testimony, these approaches do not comply with the law and may not form the basis of mitigation planning.

In addition, the document provided by the Corps as evidence of the required mitigation plan does not satisfy the mitigation plan requirements. For example that document fails to include: the activities that will be undertaken to implement the mitigation; a description of the functions and values that will be achieved from the mitigation; ecological success criteria based on replacement of lost functions and values; the basis for determining that the lands identified for mitigation will be available; a mitigation monitoring plan; and a contingency plan. It is likely, however, that monitoring and contingency plans are included in another document, Appendix J, which is referred to in the document provided by the Corps. However, since Appendix J is not accessible on the Corps' website and was not provided to Congress the Federation was not able to analyze actual compliance with these mitigation plan requirements.

This project will have significant adverse environmental impacts. According to the draft environmental impact statement and feasibility report, the recommended alternative will decrease the biological productivity of 182,000 acres of marshes and forested wetlands in Louisiana. Indirect effects could lead to the loss of 691 acres of Louisiana marsh. The proposed mitigation is intended to restore 2,783 acres of emergent marsh in existing open water areas within the marsh, improve 957 acres of shallow water habitat by creating shallower, smaller ponds and channels within the restored marsh, and stabilize and nourish 4,355 acres of existing marsh located in and around the marsh restoration zone.

17. Yazoo Backwater Area, Reformulation Report, MS. The mitigation plan for this notoriously destructive project does not comply with any of the mitigation plan requirements and does not comply with the requirement to implement in-kind mitigation to the extent possible. This project was so destructive that it was vetoed by the Environmental Protection Agency under the Clean Water Act in August 2008. n41

According to the final environmental impact statement for this project, the Yazoo Pumps would drain and damage 60,700 acres of wetlands. The proposed mitigation was to plant tree seedlings on 10,662 acres of frequently flooded agricultural lands, with no requirements to ensure that those lands had wetland hydrology. The final EIS stated explicitly that specific plans would not be developed until mitigation lands were purchased, and that monitoring would be limited to initial visual inspections followed by remote sensing techniques. n42 In actuality, the Yazoo Pumps would have drained and damaged far more than 60,700 acres of wetlands. In 2000, EPA said the project would actually drain and damage more than 200,000 acres of ecologically significant wetlands; and EPA, the Fish and Wildlife Service, and an independent hydrology assessment all demonstrated that the Corps' study grossly underestimated the actual wetland impacts.

III. Revision of the Principles and Guidelines

WRDA 2007 enacted a new national water policy that requires a fundamentally different approach to water resources project planning and directs the Secretary of the Army to develop new planning principles, guidelines and procedures to modernize planning for water resources development and conservation. We are pleased that the White House Council on Environmental Quality (CEQ) has taken on a key role in facilitating the revision and updating of the Principles and Standards, working with the Secretary of the Army and the full range of agencies and departments involved with water resources development and management. In the wake of the terrible consequences of Hurricane Katrina, growing threats of climate change and sea level rise, continued deterioration of critical fish, wildlife and natural ecosystem health associated with many of our most important waters, and increasing instances of major flooding and drought conditions across the nation, we applaud Congress for directing attention to the need to update water resource planning and applaud the Administration for recognizing its importance across the federal government.

The critical process currently underway of revising, now, the Principles and Standards will undoubtedly take considerable time and effort. But the potential long-term benefits to the nation make this a highly important exercise. While a proposal is currently out for public and National Academy of Sciences review and comment, we have a number of key concerns we hope will be considered as this effort proceeds.

1. Planning for water resources should be driven by federal law and policy, not simply benefit-cost analysis. The draft P&S continue to retain the current failed approach to planning that is based principally on a project by project benefit-cost analysis. This approach promotes piecemeal, arbitrary planning that often fails to comply with federal law and policy. While a new requirement to value ecosystem services will be useful in some cases, it will not solve the problems inherent with relying on a cost-benefit analysis to drive project planning. The new guidelines must clearly identify the policies that will guide planning, and include clear requirements that will compel compliance with those policies. Benefit-cost analysis should play a role only after all legal and policy requirements have been complied with.

2. Environmental protection and restoration must be a fundamental objective for water resources planning. While the draft P&S include some good rhetoric about the value of a healthy environment and requires consideration of the value of ecosystem services, economic development remains the driver for all water planning.

3. Restoration planning must be driven by ecological restoration objectives and not economic development objectives. The draft P&S significantly undermine restoration planning by requiring that all restoration projects promote economic development and may require a benefit cost analysis for restoration projects. Under current guidelines, the Corps of Engineers plans ecosystem restoration projects with the sole goal of increasing the quality and/or quantity of ecosystem resources, and restoration planning does not require a cost benefit analysis.

4. Modern approaches to water resources planning must be the fundamental drivers of water resources planning. The draft P&S fail to address a number of requirements that are fundamental to sound water resources planning. For example, the draft fails to adequately focus planning on increasing resiliency to climate change; fails to include a stand-alone environmental and restoration objective; fails to prioritize the use of non-structural and restoration approaches; and fails to require use of integrated water resources planning techniques that are particularly critical for water supply projects.

It is our hope that these and other issues can be addressed and improvements made as the revision effort proceeds.

IV. Conclusion

Mr. Chairman and members of the Committee, once again, on behalf of the National Wildlife Federation we greatly appreciate the efforts being made by the Committee to follow up on the progress of implementing the reforms enacted in WRDA 2007. I would be happy to respond to any questions you may have.

n1 We wish here to acknowledge the substantial contributions of Melissa Samet, NWF water resources consultant, in researching and preparing material for this report and testimony.

n2 33 USC 2343(d)

n3 National Research Council, Review Procedures for Water Resources Project Planning, 2002, p. 4.

n4 The PCX is the "Planning Center of Excellence" - this has apparently been changed in new guidance issued on January 31, 2010, in EC 1165-2-209, to the "RMO" -Review Management Organization; EC 1105-2-410, 22 Aug 2008, p. B-3, and EC 1165-2-209, 31 Jan 2010, p. B-4.

n5 Nearly identical pre-WRDA 2007Corps guidance on "Independent Technical Review" was included in EC-2-408, issued May 31, 2005.

n6 EC 1165-2-209, Jan 31, 2010 , p.5

n7 EC 1165-2-209, Jan 31, 2010 , p. 3-4

n8 EC 1165-2-209, Jan 31, 2010, p. 17.

n9 33 U.S.C. [Sec.] 2283(d) (originally authorized by [Sec.] 906 of the Water Resources Development Act of 1986, Pub.L. 99662).

n10 General Accounting Office, U.S. Army Corps of Engineers Scientific Panel's Assessment of Fish and Wildlife Mitigation Guidance, GAO-02-574, May 2002 at 4. The Corps provided the mitigation planning information for 150 projects that it says were authorized between the Water Resources Development Act of 1986 and September 30, 2001 that received construction appropriations. Id.

n11 For example, the Corps did not require any mitigation for the American River Watershed Flood Plain Protection Plan, the Boston Harbor Navigation Improvements and Berth Dredging project, and the John T. Myers and Greenup Lock Improvements project even though the Environmental Protection Agency (EPA) told the Corps that each of those projects would have significant adverse environmental impacts. The list of projects without mitigation plans identified in the May 2002 GAO study U.S. Army Corps of Engineers Scientific Panel's Assessment of Fish and Wildlife Mitigation Guidance (GAO-02-574) was provided to American Rivers by the U.S. Army Corps of Engineers. The EPA conclusions are based on the ratings that EPA gave to the environmental impact statements for each of these plans.

n12 For example, in the Corps' 2007 proposal for the notorious Yazoo Backwater Pumping Plant project in Mississippi (a project that was vetoed by EPA under the Clean Water Act in August 2007), the Corps proposed mitigating 60,700 acres of wetland damage by planting tree seedlings on 10,662 acres of frequently flooded agricultural lands, with no requirements to ensure that those lands had wetland hydrology. U.S. Army Corps of Engineers, Final Yazoo Backwater Area Reformulation Report and Final Supplement No. 1 to the 1982 Yazoo Area Pump Project Final Environmental Impact Statement (2007), Appendix 1 Mitigation.

n13 For example, in November 2000, the Corps' Vicksburg District - which covers portions of Arkansas, Louisiana and Mississippi - acknowledged that it had carried out no mitigation monitoring at all for the many civil works projects in that District. U.S. Army Corps of Engineers, Vicksburg District, November 7, 2000 response to Freedom of Information Act Request No. 00-60 submitted by Earthjustice requesting information and data on the Corps' wetlands monitoring program in the Vicksburg District.

n14 In 2002, the Corps advised GAO that "the point at which 50 percent of mitigation is completed occurs in the fiscal year in which the Corps district office's cumulative expenditures toward the mitigation plan total at least 50 percent of the estimated cost of these activities." United States General Accounting Office, U.S. Army Corps of Engineers Scientific Panel's Assessment of Fish and Wildlife Mitigation Guidance, GAO-02-574, May 2002 at 4 n.2.

n15 WRDA 2007 [Sec.] 2036. These provisions have been codified at 33 U.S.C. [Subsec.] 2283, 2283a, and 2317b.

n16 The Corps must satisfy these strict mitigation requirements in every feasibility study (and every project carried out under a feasibility study) that is either initiated or finalized on or after November 8, 2007. In addition, the full suite of mitigation requirements must be satisfied for each authorized project for which the Corps prepares a supplemental environmental impact statement or supplemental environmental assessment; and for each authorized project for which the Corps conducts a general reevaluation report or other internal reevaluation. 33 U.S.C. [Sec.] 2283(d).

n17 33 U.S.C. [Sec.] 2283(d).

n18 33 U.S.C. [Sec.] 2283(d).

n19 U.S. Army Corps of Engineers, ER 1105-2-100 (22 Apr 2000), Appendix C at 6-17. Each District Commander is to "ensure that adverse impacts to wetland resources are fully mitigated." WRDA 1990 established a statutory "interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation's wetlands, as defined by acreage and functions" for the Corps' civil works program. 33 U.S.C. [Sec.] 2317(a)(1).

n20 33 U.S.C. [Sec.] 2283(d)(3); 40 C.F.R. [Sec.] 230.2(a) (the Clean Water Act 404(b)(1) Guidelines explicitly state that they apply to the Corps' civil works program).

n21 The Council on Environmental Quality reports that under the 404 program, the Corps requires "a ratio of more than two acres of mitigation for every acre of permitted impacts to wetlands" so this should also be the minimum requirement for the Corps' civil works program. Council on Environmental Quality, Conserving America's Wetlands 2006: Two Years of Progress in Meeting the President's Goals, Appendix B at 22 (April 2006).

n22 73 Fed. Reg. 19594 (April 10, 2008); 33 C.F.R. Parts 325 and 332; 40 C.F.R. Part 230.

n23 33 U.S.C. [Sec.] 2283(d).

n24 33 U.S.C. [Sec.] 2282(3).

n25 33 U.S.C. [Sec.] 2283(d)(3). Regulations implementing the National Environmental Policy Act also require the Corps to monitor its mitigation requirements to help ensure that any mitigation the Corps commits to carry out in a Record of Decision is fully implemented. 40 C.F.R. [Subsec.] 1505.2 and 1505.3; 33 C.F.R. [Sec.] 230.15.

n26 33 U.S.C. [Sec.] 2283(d)(3).

n27 33 U.S.C. [Sec.] 2283a.

n28 Sabine-Neches Waterway Channel Improvement Project, TX, LA, U.S. Army Corps of Engineers Galveston District, draft environmental impact statement at VIII-2 (Revised 12/16/2009).

n29 33 U.S.C. [Sec.] 2283(d).

n30 It is not clear what might have caused the Corps to reach this conclusion. The "significance" of potential impacts is a concept related to the requirements of the National Environmental Policy Act, but has nothing to do with mitigation. Under the National Environmental Policy Act, an environmental impact statement is required for any major federal action that may significantly affect the quality of the human environment.

n31 USACE, Implementation Guidance for Section 2036 (a) of the Water Resources Development Act of 2007 (WRDA 07) -Mitigation for Fish and Wildlife and Wetlands Losses (August 2009) ("Section 2036(a) Implementation Guidance") at 2.

n32 33 U.S.C. [Sec.] 2283(d).

n33 33 U.S.C. [Sec.]2284.

n34 Section 2036(a) Implementation Guidance at 4.

n35 33 U.S.C. [Sec.] 2283(d)(3).

n36 The Federation could not assess the adequacy of the mitigation planning for the following nine projects because the necessary information was not provided by the Corps and was not accessible on line: (1) Powell River -Straight, Reeds, Jones & Cox Creek Sub-basins, TN. This project does not have a mitigation plan, and the final environmental assessment is not available on line. (2) IWW-La Grange Pool, Beardstown Navigation O&M, IL. This project does not have a mitigation plan, and the final environmental assessment was not provided and is not available on line. (3) Alternate Offshore Borrow Area for the Cape May Inlet to Lower Township Storm Damage Reduction Project and the Lower Cape May Meadows-Cape May Point Environmental Restoration Project, NJ. This project does not have a mitigation plan, and the final environmental assessment was not provided and is not available on line. (4) Expansion of Offshore Borrow Area for the Great Egg Inlet to Peck Beach Storm Damage Reduction Project, NJ. This project does not have a mitigation plan, and the draft environmental assessment was not provided and is not available on line. (5) Marlinton Local Protection Project, WV. This project has some type of mitigation plan, but the mitigation plan and the final environmental impact statement were not provided and are not available on line. (6) Lower Mud River Watershed, WV. This project has some type of mitigation plan, but the mitigation plan and the draft environmental impact statement were not provided and are not available on line. (7) Des Moines Raccoon River Flood Damage Reduction, IA. This project has some type of mitigation plan, but the mitigation plan and the draft environmental assessment were not provided and are not available on line. This project is utilizing a mitigation bank. (8) Howard Hanson Dam Additional Water Storage Project Final FS Report & Final EIS, WA. This project has some type of mitigation plan, but the mitigation plan and the final environmental impact statement were not provided and could not be located on line (note that the link provided by the Corps was not accurate). (9) St. Joseph, Levees, MO. This project has some type of mitigation plan, but the mitigation plan and the final environmental assessment could not be located on line (note that the link provided by the Corps was not accurate).

n37 The Federation lacks the independent information necessary to assess whether more than negligible impacts would in fact occur from these projects: (1) Chesapeake Bay Oyster Restoration Using Alternate (Non-Oyster Shell) Substrate, MD; (2) Delaware Bay Oyster Restoration Project, DE & NJ; (3) Rehabilitation of Damaged Flood Control Works Lehigh River Weissport Flood Protection Project, PA; (4) Indian River Inlet and Bay Maintenance Dredging and Beneficial Use of Dredged Material, Sussex County, DE; (5) White River Minimum Flow, AR; and (6) Water Storage Reallocation Report Greers Ferry (MAWA), AR.

n38 The Federation could not evaluate the documentation describing the impacts of this project as the link to the environmental impact statement for this project provided by the Corps was not accurate, and we could not otherwise locate the EIS on the Corps' website.

n39 Credits were purchased for the following: 7.092 vernal pool preservation credits; 5.0 credits in the Sutter Basin Conservation Bank; 31.6 Giant Garter Snake Credits also in the Sutter Basin Conservation Bank.

n40 U.S. Army Corps of Engineers Press Release, Upper Trinity River Central City Project advances construction with award of $3.2-million contract, dated January 26, 2010, available at http://www.swf.usace.army.mil/pubdata/pao/releases/fy2010/NR10-016.pdf (visited February 28, 2010).

n41 The plan information was not provided to Congress, but the Federation has this information in its records.

n42 U.S. Army Corps of Engineers, Final Yazoo Backwater Area Reformulation Report and Final Supplement No. 1 to the 1982 Yazoo Area Pump Project Final Environmental Impact Statement (2007), Appendix 1 Mitigation. This proposal was released after enactment of WRDA 2007.

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