Omnibus Appropriations Act, 2009/Division C/Title I

TITLE I — Department of Defense — Civil

Department of the Army

Corps of Engineers—Civil

The following appropriations shall be expended under the direction of the Secretary of the Army and the supervision of the Chief of Engineers for authorized civil functions of the Department of the Army pertaining to rivers and harbors, flood and storm damage reduction, shore protection, aquatic ecosystem restoration, and related efforts.

Investigations

For expenses necessary where authorized by law for the collection and study of basic information pertaining to river and harbor, flood and storm damage reduction, shore protection, aquatic ecosystem restoration, and related needs; for surveys and detailed studies, and plans and specifications of proposed river and harbor, flood and storm damage reduction, shore protection, and aquatic ecosystem restoration projects and related efforts prior to construction; for restudy of authorized projects; and for miscellaneous investigations and, when authorized by law, surveys and detailed studies, and plans and specifications of projects prior to construction, $168,100,000, to remain available until expended:

Provided, That, except as provided in section 101 of this Act, the amounts made available under this paragraph shall be expended as authorized in law for the projects and activities specified in the text and table under this heading in the explanatory statement described in section 4 (in the matter preceding division A of this consolidated Act).

Construction

For expenses necessary for the construction of river and harbor, flood and storm damage reduction, shore protection, aquatic ecosystem restoration, and related projects authorized by law; for conducting detailed studies, and plans and specifications, of such projects (including those involving participation by States, local governments, or private groups) authorized or made eligible for selection by law (but such detailed studies, and plans and specifications, shall not constitute a commitment of the Government to construction); $2,141,677,000, to remain available until expended; of which such sums as are necessary to cover the Federal share of construction costs for facilities under the Dredged Material Disposal Facilities program shall be derived from the Harbor Maintenance Trust Fund as authorized by Public Law 104-303; and of which such sums as are necessary pursuant to Public Law 99-662 shall be derived from the Inland Waterways Trust Fund, to cover one-half of the costs of construction, replacement, rehabilitation, and expansion of inland waterways projects (including only Chickamauga Lock, Tennessee; Kentucky Lock and Dam, Tennessee River, Kentucky; Lock and Dams 2, 3, and 4 Monongahela River, Pennsylvania; Marmet Lock and Dam, West Virginia; McAlpine Lock and Dam, Kentucky and Indiana; Olmsted Lock and Dam, Illinois and Kentucky; Gray's Landing Lock and Dam, Pennsylvania; R.C. Byrd Lock and Dam, Ohio and West Virginia; and Point Marion Lock and Dam, Pennsylvania) shall be derived from the Inland Waterways Trust Fund:

Provided, That the Chief of Engineers is directed to use $13,000,000 of the funds appropriated herein for the Dallas Floodway Extension, Texas, project, including the Cadillac Heights feature, generally in accordance with the Chief of Engineers report dated December 7, 1999:

Provided further, That the Chief of Engineers is directed to use $8,000,000 of the funds appropriated herein for planning, engineering, design or construction of the Grundy, Buchanan County, and Dickenson County, Virginia, elements of the Levisa and Tug Forks of the Big Sandy River and Upper Cumberland River Project:

Provided further, That the Chief of Engineers is directed to use $8,500,000 of the funds appropriated herein to continue planning, engineering, design or construction of the Lower Mingo County, Upper Mingo County, Wayne County, McDowell County, West Virginia, elements of the Levisa and Tug Forks of the Big Sandy River and Upper Cumberland River Project:

Provided further, That the Secretary of the Army, acting through the Chief of Engineers, is directed to use $9,000,000 of the funds appropriated herein for the Clover Fork, City of Cumberland, Town of Martin, Pike County (including Levisa Fork and Tug Fork Tributaries), Bell County, Harlan County in accordance with the Draft Detailed Project Report dated January 2002, Floyd County, Martin County, Johnson County, and Knox County, Kentucky, detailed project report, elements of the Levisa and Tug Forks of the Big Sandy River and Upper Cumberland River:

Provided further, That the Chief of Engineers is directed to use $17,048,000 of the funds provided herein for planning and design and construction of a rural health care facility on the Fort Berthold Reservation of the Three Affiliated Tribes, North Dakota:

Provided further, That, except as provided in section 101 of this Act, the amounts made available under this paragraph shall be expended as authorized in law for the projects and activities specified in the text and table under this heading in the explanatory statement described in section 4 (in the matter preceding division A of the consolidated Act).

Mississippi River and Tributaries

For expenses necessary for flood damage reduction projects and related efforts in the Mississippi River alluvial valley below Cape Girardeau, Missouri, as authorized by law, $383,823,000, to remain available until expended, of which such sums as are necessary to cover the Federal share of eligible operation and maintenance costs for inland harbors shall be derived from the Harbor Maintenance Trust Fund:

Provided, That the Chief of Engineers is directed to use $5,000,000 of the funds provided herein for design and real estate activities and pump supply elements for the Yazoo Basin, Yazoo Backwater Pumping Plant, Mississippi:

Provided further, That the Secretary of the Army, acting through the Chief of Engineers is directed to use $8,000,000 appropriated herein for construction of water withdrawal features of the Grand Prairie, Arkansas, project:

Provided further, That, except as provided in section 101 of this Act, the amounts made available under this paragraph shall be expended as authorized in law for the projects and activities specified in the text and table under this heading in the explanatory statement described in section 4 (in the matter preceding division A of this consolidated Act).

operation and maintenance

For expenses necessary for the operation, maintenance, and care of existing river and harbor, flood and storm damage reduction, aquatic ecosystem restoration, and related projects authorized by law; providing security for infrastructure owned or operated by the Corps, including administrative buildings and laboratories; maintaining harbor channels provided by a State, municipality, or other public agency that serve essential navigation needs of general commerce, where authorized by law; surveying and charting northern and northwestern lakes and connecting waters; clearing and straightening channels; and removing obstructions to navigation, $2,201,900,000, to remain available until expended, of which such sums as are necessary to cover the Federal share of eligible operation and maintenance costs for coastal harbors and channels, and for inland harbors shall be derived from the Harbor Maintenance Trust Fund; of which such sums as become available from the special account for the Corps established by the Land and Water Conservation Act of 1965, as amended (16 U.S.C. 460l-6a(i)), shall be derived from that account for resource protection, research, interpretation, and maintenance activities related to resource protection in the areas at which outdoor recreation is available; and of which such sums as become available from fees collected under section 217 of the Water Resources Development Act of 1996 (Public Law 104-303), shall be used to cover the cost of operation and maintenance of the dredged material disposal facilities for which such fees have been collected:

Provided, That of the amounts provided herein, not to exceed $500,000 is provided to the Secretary of the Army to reimburse travel expenses as provided for in section 9003(f) of the Water Resources Development Act of 2007, Public Law 110-114 (121 Stat. 1289-1290):

Provided further, That 2 percent of the total amount of funds provided for each of the programs, projects or activities funded under this heading shall not be allocated to a field operating activity prior to the beginning of the fourth quarter of the fiscal year and shall be available for use by the Chief of Engineers to fund such emergency activities as the Chief of Engineers determines to be necessary and appropriate; and that the Chief of Engineers shall allocate during the fourth quarter any remaining funds which have not been used for emergency activities proportionally in accordance with the amounts provided for the programs, projects or activities:

Provided further, That, except as provided in section 101 of this Act, the amounts made available under this paragraph shall be expended as authorized in law for the projects and activities specified in the text and table under the heading in the explanatory statement described in section 4 (in the matter preceding division A of this consolidated Act).

Regulatory Program

For expenses necessary for administration of laws pertaining to regulation of navigable waters and wetlands, $183,000,000, to remain available until expended:

Provided, That the Secretary of the Army, acting through the Chief of Engineers, may use up to $3,200,000 of the funds appropriated herein to reimburse the Port of Arlington, Gillam County, Oregon, for those direct construction costs determined by the Secretary to have been incurred by the Port as a result of and following issuance of the Department of the Army Regulatory Program permit for the construction of a commercial dock and offload facility at the Port in February 2007, including the removal of the commercial dock and offload facility.

Formerly Utilized Sites Remedial Action Program

For expenses necessary to clean up contamination from sites in the United States resulting from work performed as part of the Nation's early atomic energy program, $140,000,000, to remain available until expended.

Expenses

For expenses necessary for the supervision and general administration of the civil works program in the headquarters of the United States Army Corps of Engineers, and the offices of the Division Engineers; and for the management and operation of the Humphreys Engineer Center Support Activity, the Institute for Water Resources, the United States Army Engineer Research and Development Center, and the United States Army Corps of Engineers Finance Center, $179,365,000, to remain available until expended, of which not to exceed $5,000 may be used for official reception and representation purposes and only during the current fiscal year:

Provided, That no part of any other appropriation provided in title I of this Act shall be available to fund the civil works activities of the Office of the Chief of Engineers or the civil works executive direction and management activities of the division offices.

office of assistant secretary of the army (civil works)

For the Office of Assistant Secretary of the Army (Civil Works) as authorized by 10 U.S.C. 3016(b)(3), $4,500,000, to remain available until expended.

Administrative Provision

The Revolving Fund, Corps of Engineers, shall be available during the current fiscal year for purchase (not to exceed 100 for replacement only) and hire of passenger motor vehicles for the civil works program.

Sec. 101.

(a) None of the funds provided in title I of this Act, or provided by previous appropriations Acts to the agencies or entities funded in title I of this Act that remain available for obligation or expenditure in fiscal year 2009, shall be available for obligation or expenditure through a reprogramming of funds that:

(1) creates or initiates a new program, project, or activity;

(2) eliminates a program, project, or activity;

(3) increases funds or personnel for any program, project, or activity for which funds have been denied or restricted by this Act, unless prior approval is received from the House and Senate Committees on Appropriations;

(4) proposes to use funds directed for a specific activity for a different purpose, unless prior approval is received from the House and Senate Committees on Appropriations;

(5) augments or reduces existing programs, projects or activities in excess of the amounts contained in subsections 6 through 10, unless prior approval is received from the House and Senate Committees on Appropriations;

(6) Investigations.—For a base level over $100,000, reprogramming of 25 percent of the base amount up to a limit of $150,000 per project, study or activity is allowed:

Provided, That for a base level less than $100,000, the reprogramming limit is $25,000; Provided further, That up to $25,000 may be reprogrammed into any continuing study or activity that did not receive an appropriation for existing obligations and concomitant administrative expenses;

(7) Construction.—For a base level over $2,000,000, reprogramming of 15 percent of the base amount up to a limit of $3,000,000 per project, study or activity is allowed:

Provided, That for a base level less than $2,000,000, the reprogramming limit is $300,000:

Provided further, That up to $3,000,000 may be reprogrammed for settled contractor claims, changed conditions, or real estate deficiency judgments:

Provided further, That up to $300,000 may be reprogrammed into any continuing study or activity that did not receive an appropriation for existing obligations and concomitant administrative expenses;

(8) Operation and maintenance.— Unlimited reprogramming authority is granted in order for the Corps to be able to respond to emergencies:

Provided, That the Chief of Engineers must notify the House and Senate Committees on Appropriations of these emergency actions as soon thereafter as practicable:

Provided further, That for a base level over $1,000,000, reprogramming of 15 percent of the base amount up to a limit of $5,000,000 per project, study or activity is allowed:

Provided further, That for a base level less than $1,000,000, the reprogramming limit is $150,000:

Provided further, That $150,000 may be reprogrammed into any continuing study or activity that did not receive an appropriation;

(9) Mississippi river and tributaries.—The same reprogramming guidelines for the Investigations, Construction, and Operation and Maintenance portions of the Mississippi River and Tributaries Account as listed above; and

(10) Formerly utilized sites remedial action program.—

Reprogramming of up to 15 percent of the base of the receiving project is permitted.

(b) Continuing Authorities Program.—Subsection (a)(1) shall not apply to any project or activity funded under the continuing authorities program.

(c) Not later than 60 days after the date of enactment of this Act, the Corps of Engineers shall submit a report to the House and Senate Committees on Appropriations to establish the baseline for application of reprogramming and transfer authorities for the current fiscal year:

Provided, That the report shall include:

(1) A table for each appropriation with a separate column to display the President's budget request, adjustments made by Congress, adjustments due to enacted rescissions, if appropriate, and the fiscal year enacted level;

(2) A delineation in the table for each appropriation both by object class and program, project and activity as detailed in the budget appendix for the respective appropriations; and

(3) An identification of items of special congressional interest:

Provided further, That the amount appropriated for salaries and expenses of the Corps of Engineers shall be reduced by $100,000 per day for each day after the required date that the report has not been submitted to the Congress.

Sec. 102.

None of the funds in this Act, or previous Acts, making funds available for Energy and Water Development, shall be used to implement any pending or future competitive sourcing actions under OMB Circular A-76 or High Performing Organizations for the U.S. Army Corps of Engineers.

Sec. 103.

None of the funds made available in this title may be used to award or modify any contract that commits an amount for a project in excess of the amounts appropriated for that project that remain unobligated.

Sec. 104.

Within 90 days of the date of the Chief of Engineers Report on a water resource matter, the Assistant Secretary of the Army (Civil Works) shall submit the report to the appropriate authorizing and appropriating committees of the Congress.

Sec. 105.

Water Reallocation, Lake Cumberland, Kentucky. (a) In General.—Subject to subsection (b), none of the funds made available by this Act may be used to carry out any water reallocation project or component under the Wolf Creek Project, Lake Cumberland, Kentucky, authorized under the Act of June 28, 1938 (52 Stat. 1215, ch. 795) and the Act of July 24, 1946 (60 Stat. 636, ch. 595).

(b) Existing Reallocations.—Subsection (a) shall not apply to any water reallocation for Lake Cumberland, Kentucky, that is carried out subject to an agreement or payment schedule in effect on the date of enactment of this Act.

Sec. 106.

Section 121 of the Energy and Water Development Appropriations Act, 2006 (Public Law 109-103; 119 Stat. 2256) is amended by striking subsection (a) and inserting the following:

``(a) Hereafter, the Secretary of the Army may carry out and fund planning studies, watershed surveys and assessments, or technical studies at 100 percent Federal expense to accomplish the purposes of the 2003 Biological Opinion described in section 205(b) of the Energy and Water Development Appropriations Act, 2005 (Public Law 108-447; 118 Stat. 2949) as amended by subsection (b) or any related subsequent biological opinion, and the collaborative program long-term plan. In carrying out a study, survey, or assessment under this subsection, the Secretary of the Army shall consult with Federal, State, tribal and local governmental entities, as well as entities participating in the Middle Rio Grande Endangered Species Collaborative Program referred to in section 205 of this Act:

Provided, That the Secretary of the Army may also provide planning and administrative assistance to the Middle Rio Grande Endangered Species Collaborative Program, which shall not be subject to cost sharing requirements with non-Federal interests.''.

Sec. 107.

None of the funds in this Act, or previous Acts, making funds available for Energy and Water Development shall be used to award any continuing contract that commits additional funding from the Inland Waterway Trust Fund unless or until such time that a permanent solution to enhance revenues in the fund is enacted.

Sec. 108.

The Secretary is authorized to conduct a study of the Missouri River Projects located within the Missouri River basin at a total cost of $25,000,000 with the express purpose to review the original project purposes based on the Flood Control Act of 1944, as amended, and other subsequent relevant legislation and judicial rulings to determine if changes to the authorized project purposes and existing Federal water resource infrastructure may be warranted:

Provided, That this study shall be undertaken at full Federal expense.

Sec. 109.

Section 134 of Public Law 108-137 (117 Stat. 1842), as amended by section 128(b) of Public Law 109-103 (119 Stat. 2260), is further amended by striking ``$30,000,000'' wherever it appears and inserting ``$48,300,000'' in lieu thereof.

Sec. 110.

Section 101(a)(5) of the Water Resources Development Act of 1996 (110 Stat. 3663) is amended—

(1) by inserting ``(A) In general.—'' before ``The''; and

(2) by adding at the end the following:

``(B) Credit toward non-federal share.—The Secretary shall credit toward the non-Federal share of the project the costs expended by non-Federal interests for the replacement and reconstruction of the Soquel Avenue Bridge.

``(C) Maximum amount of credit.—The credit under paragraph (B) may not exceed $2,000,000.

``(D) Limitation of total project cost.—The Secretary shall not include the costs to be credited under paragraphs (B) and (C) in total project costs in determining the amounts of the Federal and non-Federal contributions.''.

Sec. 111.

The Missouri River Levee System (MRLS) Unit L-385 Project, Riverside, Missouri, authorized by the Flood Control Act of 1941, Public Law 77-228, and the Flood Control Act of 1944, Public Law 78-534, is modified to direct the Secretary, acting through the Chief of Engineers, to take such action as is necessary to correct deficiencies in the L-385 levee system in Riverside, Missouri at full Federal expense at a cost of no more than $7,000,000.

Sec. 112.

Section 115 of the Energy and Water Development and Related Agencies Appropriations Act, 2008 as contained in division C of Public Law 110-161, is amended by striking ``$20,000,000. The Secretary shall transfer this facility to the Secretary of the Interior for operation and maintenance upon the completion of construction.'' and inserting in lieu thereof, ``$20,000,000:

Provided, That the Secretary shall transfer ownership of this facility to the Secretary of Health and Human Services for operation and maintenance upon the completion of construction.''.

Sec. 113.

Section 103(c)(7) of the Water Resources Development Act of 1992 (106 Stat. 4811-12), as amended by section 117 of the Energy and Water Development Appropriations Act of 2006 (119 Stat. 2255), is further amended by striking ``15,000,000'' and inserting ``26,000,000''.

Sec. 114.

Section 3118 of Public Law 110-114 (121 Stat. 1137) is amended by—

(1) in paragraph (b) by inserting after ``New Mexico'' the following: ``in accordance with the plans recommended in the feasibility report for the Middle Rio Grande Bosque, New Mexico, scheduled for completion in December 2008'';

(2) redesignating subsection (d) as subsection (e); and

(3) inserting a new subsection (d):

``(d) Cost Sharing.—Any requirement for non-Federal participation in a project carried out in the bosque of Bernalillo County, New Mexico, pursuant to this section shall be limited to the provision of lands, easements, rights-of-way, relocations, and dredged material disposal areas necessary for construction, operation and maintenance of the project.''.

Sec. 115.

The non-Federal interest for the project referenced in section 3154 of the Water Resources Development Act of 2007 (Public Law 110-114; 121 Stat. 1148) may carry out design and construction work on the project in advance of Federal appropriations or may provide funds directly to the Secretary for the Secretary to carry out such work:

Provided, That the Secretary of the Army shall reimburse the non-Federal interest for any costs incurred by the non-Federal interest that are in excess of the non-Federal share of total project costs subject to the availability of appropriations.

Sec. 116.

The Colorado Department of Natural Resources is authorized to perform modifications of the facility (Chatfield Reservoir, Colorado), and any required mitigation which results from implementation of the project:

Provided, That in carrying out the reassignment of storage space provided for in this section, the Secretary shall collaborate with the Colorado Department of Natural Resources and local interests to determine costs to be repaid for storage that reflects the limited reliability of the resources and the capability of non-Federal interests to make use of the reallocated storage space in Chatfield Reservoir, Colorado.

Sec. 117.

Section 117 of the Energy and Water Development and Related Agencies Appropriations Act, 2005, as contained in division C of Public Law 108-447, is hereby repealed.

Sec. 118.

The Secretary of Army, acting through the Chief of Engineers, shall reassign the regulatory boundaries of the Chicago District to align with the existing civil works boundaries of the Chicago District.