Sec. 233. GAO studies

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Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States (referred to in this section as the Comptroller General ) shall initiate a review of the accuracy of the project cost estimates developed by the Corps of Engineers for completed and ongoing water resources development projects carried out by the Secretary. In carrying out subparagraph (A), the Comptroller General shall determine the factors, if any, that impact the accuracy of the estimates described in that subparagraph, including— applicable statutory requirements, including— section 1001 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 2282c ); and section 905(b) of the Water Resources Development Act of 1986 ( 33 U.S.C. 2282(b) )]; and applicable guidance, regulations, and policies of the Corps of Engineers.

In carrying out subparagraph (A), the Comptroller General may incorporate applicable information from the report carried out by the Comptroller General under section 8236(c) of the Water Resources Development Act of 2022 (136 Stat. 3769). On completion of the review conducted under paragraph (1), the Comptroller General 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 on the findings of the review and any recommendations that result from the review.

In this subsection: The term indemnification clause means the indemnification clause required in project partnership agreements for water resources development projects under sections 101(e)(2) and 103(j)(1)(A) of the Water Resources Development Act of 1986 ( 33 U.S.C. 2211(e)(2) , 2213(j)(1)(A)). The term OMRR&R , with respect to a water resources development project, means operation, maintenance, repair, replacement, and rehabilitation. It is the sense of Congress that— there are significant concerns about whether— the indemnification clause, which was first applied in 1910 to flood control projects, should still be included in project partnership agreements prepared by the Corps of Engineers for water resources development projects; and non-Federal interests for water resources development projects should be required to assume full responsibility for OMRR&R of water resources development projects in perpetuity; non-Federal interests have reported that the indemnification clause and OMRR&R requirements are a barrier to entering into project partnership agreements with the Corps of Engineers; critical water resources development projects are being delayed by years, or not pursued at all, due to the barriers described in subparagraph (B); and legal structures have changed since the indemnification clause was first applied and there may be more suitable tools available to address risk and liability issues.

Not later than 1 year after the date of enactment of this Act, the Comptroller General shall conduct an analysis of the implications of— the indemnification clause; and the assumption of OMRR&R responsibilities by non-Federal interests in perpetuity for water resources development projects. The analysis under paragraph

(3)shall include— a review of risk for the Federal Government and non-Federal interests with respect to removing requirements for the indemnification clause; an assessment of whether the indemnification clause is still necessary given the changes in engineering, legal structures, and water resources development projects since 1910, with a focus on the quantity and types of claims and takings over time; an identification of States with State laws that prohibit those States from entering into agreements that include an indemnification clause; a comparison to other Federal agencies with respect to how those agencies approach indemnification and OMRR&R requirements in projects, if applicable; a review of indemnification and OMRR&R requirements for projects that States require with respect to agreements with cities and localities, if applicable; an analysis of the useful lifespan of water resources development projects, including any variations in that lifespan for different types of water resources development projects and how changing weather patterns and increased extreme weather events impact that lifespan; a review of situations in which non-Federal interests have been unable to meet OMRR&R requirements; and a review of policy alternatives to OMRR&R requirements, such as allowing extension, reevaluation, or deauthorization of water resources development projects. On completion of the analysis under paragraph (3), the Comptroller General 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 that includes— the results of the analysis; and any recommendations for changes needed to existing law or policy of the Corps of Engineers to address those results. In this subsection, the term section 408 program means the program administered by the Secretary pursuant to section 14 of the Act of March 3, 1899 (commonly known as the Rivers and Harbors Act of 1899 ) (30 Stat. 1152, chapter 425; 33 U.S.C. 408 ). Not later than 1 year after the date of enactment of this Act, the Comptroller General shall initiate a review of the section 408 program. The review by the Comptroller General under paragraph

(2)shall include, at a minimum— an identification of trends related to the number and types of permits applied for each year under the section 408 program; an evaluation of— the materials developed by the Secretary to educate potential applicants about— the section 408 program; and the process for applying for a permit under the section 408 program; the public website of the Corps of Engineers that tracks the status of permits issued under the section 408 program, including whether the information provided by the website is updated in a timely manner; the ability of the districts and divisions of the Corps of Engineers to consistently administer the section 408 program; and the extent to which the Secretary carries out the process for issuing a permit under the section 408 program concurrently with the review required under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), if applicable; a determination of the factors, if any, that impact the ability of the Secretary to adhere to the timelines required for reviewing and making a decision on an application for a permit under the section 408 program; and ways to expedite the review of applications for permits under the section 408 program, including the use of categorical permissions. On completion of the review under paragraph (2), the Comptroller General 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 on the findings of the review and any recommendations that result from the review. Not later than 1 year after the date of enactment of this Act, the Comptroller General shall initiate an analysis of opportunities for the Corps of Engineers to modernize the civil works program through the use of technology, where appropriate, and the best available engineering practices. In conducting the analysis under paragraph (1), the Comptroller General of the United States shall include an assessment of the extent to which— existing engineering practices and technologies could be better utilized by the Corps of Engineers— to improve study, planning, and design efforts of the Corps of Engineers to further the benefits of water resources development projects of the Corps of Engineers; to reduce delays of water resources development projects, including through the improvement of environmental review and permitting processes; to provide cost savings over the lifecycle of a project, including through improved design processes or a reduction of operation and maintenance costs; and to improve data collection and data sharing capabilities; and the Corps of Engineers— currently utilizes the engineering practices and technologies identified under subparagraph (A), including any challenges associated with acquisition and application; has effective processes to share best practices associated with the engineering practices and technologies identified under subparagraph

(A)among the districts, divisions, and headquarters of the Corps of Engineers; and partners with National Laboratories, academic institutions, and other Federal agencies. On completion of the analysis under paragraph (1), the Comptroller General 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 on the findings of the analysis and any recommendations that result from the analysis. In this subsection, the term covered easement has the meaning given the term in section 8235(c) of the Water Resources Development Act of 2022 (136 Stat. 3768). Not later than 1 year after the date of enactment of this Act, the Comptroller General shall initiate an analysis of the use of covered easements that may be provided to the Secretary by non-Federal interests in relation to the construction, operation, or maintenance of a project for flood risk management, hurricane and storm damage risk reduction, or ecosystem restoration. In carrying out the analysis under paragraph (2), the Comptroller General of the United States shall— review— the report submitted by the Secretary under section 8235(b) of the Water Resources Development Act of 2022 (136 Stat. 3768); and the existing statutory, regulatory, and policy requirements and procedures relating to the use of covered easements; and assess— the minimum rights in property that are necessary to construct, operate, or maintain projects for flood risk management, hurricane and storm damage risk reduction, or ecosystem restoration; whether increased use of covered easements in relation to projects described in clause

(i)could promote greater participation from cooperating landowners in addressing local flooding or ecosystem restoration challenges; whether such increased use could result in cost savings in the implementation of the projects described in clause (i), without any reduction in project benefits; and the extent to which the Secretary should expand what is considered by the Secretary to be part of a series of estates deemed standard for construction, operation, or maintenance of a project for flood risk management, hurricane and storm damage risk reduction, or ecosystem restoration. On completion of the analysis under paragraph (2), the Comptroller General of the United States 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 on the findings of the analysis, including any recommendations, including legislative recommendations, as a result of the analysis. In this subsection, the term project study means a feasibility study for a project carried out pursuant to section 905 of the Water Resources Development Act of 1986 ( 33 U.S.C. 2282 ). Not later than 1 year after the date of enactment of this Act, the Comptroller General 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 that describes the efforts of the Secretary to facilitate improved environmental review processes for project studies, including through the consideration of expanded use of categorical exclusions, environmental assessments, or programmatic environmental impact statements. In completing the report under paragraph (2), the Comptroller General of the United States shall— describe the actions the Secretary is taking or plans to take to implement the amendments to the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) made by section 321 of the Fiscal Responsibility Act of 2023 ( Public Law 118–5 ; 137 Stat. 38); describe the existing categorical exclusions most frequently used by the Secretary to streamline the environmental review of project studies; consider— whether the adoption of additional categorical exclusions, including those used by other Federal agencies, would facilitate the environmental review of project studies; whether the adoption of new programmatic environmental impact statements would facilitate the environmental review of project studies; and whether agreements with other Federal agencies would facilitate a more efficient process for the environmental review of project studies; and identify— any discrepancies or conflicts, as applicable, between the amendments to the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) made by section 321 of the Fiscal Responsibility Act of 2023 ( Public Law 118–5 ; 137 Stat. 38) and— section 2045 of the Water Resources Development Act of 2007 ( 33 U.S.C. 2348 ); and section 1001 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 2282c ); and other issues, as applicable, relating to section 2045 of the Water Resources Development Act of 2007 ( 33 U.S.C. 2348 ) that are impeding the implementation of that section consistent with congressional intent. The Comptroller General shall conduct a study that— assesses the costs and limitations of the construction of various types of dredged material disposal sites, with a particular focus on aquatic confined placement structures in the Lower Columbia River; and includes a comparison of— the operation and maintenance needs and costs associated with the availability of aquatic confined placement structures; and the operation and maintenance needs and costs associated with the lack of availability of aquatic confined placement structures. On completion of the study under paragraph (1), the Comptroller General 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 on the findings of the study, and any recommendations that result from that study. In this subsection, the term Harbor Maintenance Trust Fund means the Harbor Maintenance Trust Fund established by section 9505(a) of the Internal Revenue Code of 1986. Not later than 1 year after the date of enactment of this Act, the Comptroller General shall initiate an analysis of the distribution of funding from the Harbor Maintenance Trust Fund. In conducting the analysis under paragraph (2), the Comptroller General shall assess— the implementation of provisions related to the Harbor Maintenance Trust Fund in the Water Resources Development Act of 2020 (134 Stat. 2615) and the amendments made by that Act by the Corps of Engineers, including— changes to the budgetary treatment of funding from the Harbor Maintenance Trust Fund; and amendments to the definitions of the terms donor ports , medium-sized donor parts , and energy transfer ports under section 2106(a) of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 2238c(a) ), including— the reliability of metrics, data for those metrics, and sources for that data used by the Corps of Engineers to determine if a port satisfies the requirements of 1 or more of those definitions; and the extent of the impact of cyclical dredging cycles for operations and maintenance activities and deep draft navigation construction projects on the ability of ports to meet the requirements of 1 or more of those definitions; and the amount of Harbor Maintenance Trust Fund funding in the annual appropriations Acts enacted after the date of enactment of the Water Resources Development Act of 2020 (134 Stat. 2615), including an analysis of— the allocation of funding to donor ports and energy transfer ports (as those terms are defined in section 2106(a) of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 2238c(a) )) and the use of that funding by those ports; activities funded pursuant to section 210 of the Water Resources Development Act of 1986 ( 33 U.S.C. 2238 ); and challenges associated with expending the remaining balance of the Harbor Maintenance Trust Fund. On completion of the analysis under paragraph (2), the Comptroller General 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 describing the findings of the analysis and any recommendations that result from that analysis.

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