Pub.L. 108-138 To correct a technical error from Unit T-07 of the John H. Chafee Coastal Barrier Resources System. <> ...

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[[Page 117 STAT. 1827]]

Public Law 108-137
108th Congress

                                 An Act


 
 Making appropriations for energy and water development for the fiscal 
year ending September 30, 2004, and for other purposes. <<NOTE: Dec. 1, 
                         2003 -  [H.R. 2754]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Energy and Water 
Development Appropriations Act, 2004.>> That the following sums are 
appropriated, out of any money in the Treasury not otherwise 
appropriated, for the fiscal year ending September 30, 2004, for energy 
and water development, and for other purposes, namely:

                                 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 control, shore protection, 
          aquatic ecosystem restoration, and related purposes.

    For expenses necessary for the collection and study of basic 
information pertaining to river and harbor, flood control, shore 
protection, aquatic ecosystem restoration, and related projects, restudy 
of authorized projects, miscellaneous investigations, and, when 
authorized by law, surveys and detailed studies and plans and 
specifications of projects prior to construction, $116,949,000, to 
remain available until expended: Provided, That for the Ohio Riverfront, 
Cincinnati, Ohio, project, the cost of planning and design undertaken by 
non-Federal interests shall be credited toward the non-Federal share of 
project design costs: Provided further, That in conducting the Southwest 
Valley Flood Damage Reduction Study, Albuquerque, New Mexico, the 
Secretary of the Army, acting through the Chief of Engineers, shall 
include an evaluation of flood damage reduction measures that would 
otherwise be excluded from the feasibility analysis based on policies 
regarding the frequency of flooding, the drainage areas, and the amount 
of runoff: Provided further, That the Secretary of the Army, acting 
through the Chief of Engineers, is directed to use $250,000 for 
preconstruction engineering and design of Waikiki Beach, Oahu,

[[Page 117 STAT. 1828]]

Hawaii, the project to be designed and evaluated, as authorized: 
Provided further, That the Secretary of the Army, acting through the 
Chief of Engineers, is directed to use $100,000 for the continuation and 
completion of feasibility studies of Kihei Beach, Maui, Hawaii: Provided 
further, That any recommendations for a National Economic Development 
Plan shall be accepted notwithstanding the extent of recreation benefits 
supporting the project features, in view of the fact that recreation is 
extremely important in sustaining and increasing the economic well-being 
                 of the State of Hawaii and the nation.

    For the prosecution of river and harbor, flood control, shore 
protection, aquatic ecosystem restoration, and related projects 
authorized by law; and detailed studies, and plans and specifications, 
of projects (including those for development with participation or under 
consideration for participation by States, local governments, or private 
groups) authorized or made eligible for selection by law (but such 
studies shall not constitute a commitment of the Government to 
construction), $1,722,319,000, 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, for one-half of the costs of construction and 
rehabilitation of inland waterways projects, including rehabilitation 
costs for Lock and Dam 11, Mississippi River, Iowa; Lock and Dam 19, 
Mississippi River, Iowa; Lock and Dam 24, Mississippi River, Illinois 
and Missouri; and Lock and Dam 3, Mississippi River, Minnesota: 
Provided, That using $9,280,000 of the funds appropriated herein, the 
Secretary of the Army, acting through the Chief of Engineers, is 
directed to continue construction of 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 Secretary of the Army is directed to accept 
advance funds, pursuant to section 11 of the River and Harbor Act of 
1925, from the non-Federal sponsor of the Los Angeles Harbor, 
California, project authorized by section 101(b)(5) of Public Law 106-
541: Provided further, That the Secretary of the Army, acting through 
the Chief of Engineers, is directed to use $750,000 of the funds 
provided herein to continue construction of the Hawaii Water Management 
Project: Provided further, That the Secretary of the Army, acting 
through the Chief of Engineers, is directed to use $2,500,000 of the 
funds appropriated herein to continue construction of the navigation 
project at Kaumalapau Harbor, Hawaii: Provided further, That the 
Secretary of the Army, acting through the Chief of Engineers, is 
directed to use $6,000,000 of the funds provided herein for the Dam 
Safety and Seepage/Stability Correction Program to continue construction 
of seepage control features and to design and construct repairs to the 
tainter gates at Waterbury Dam, Vermont: Provided further, That the 
Secretary of the Army, acting through the Chief of Engineers, is 
directed to proceed with the construction of the New York and New Jersey 
Harbor project, 50-foot deepening element, upon execution of the Project 
Cooperation Agreement: Provided

[[Page 117 STAT. 1829]]

further, That no funds made available under this Act or any other Act 
for any fiscal year may be used by the Secretary of the Army to carry 
out the construction of the Port Jersey element of the New York and New 
Jersey Harbor or reimbursement to the Local Sponsor for the construction 
of the Port Jersey element until commitments for construction of 
container handling facilities are obtained from the non-Federal sponsor 
for a second user along the Port Jersey element: Provided 
further, <<NOTE: Florida. Deadline. Reports.>> That funds appropriated 
in this Act for the preservation and restoration of the Florida 
Everglades shall be made available for expenditure unless: (1) the 
Secretary of the Army, not later than 30 days after the date of 
enactment of this Act, transmits to the State of Florida and the 
Committees on Appropriations of the House of Representatives and the 
Senate a report containing a finding and supporting materials indicating 
that the waters entering the A.R.M. Loxahatchee National Wildlife Refuge 
and Everglades National Park do not meet the water quality requirements 
set forth in the Consent Decree entered in United States v. South 
Florida Water Management District; (2) the State fails to submit a 
satisfactory plan to bring the waters into compliance with the water 
quality requirements within 45 days of the date of the report; (3) the 
Secretary transmits to the State and the Committees a follow-up report 
containing a finding that the State has not submitted such a plan; and 
(4) either the Committee on Appropriations of the House of 
Representatives or the Senate issues a written notice disapproving of 
further expenditure of the funds: Provided 
further, <<NOTE: Florida. Notice.>> That the Secretary of the Army shall 
provide the State of Florida with notice and an opportunity to respond 
to any determination of the Secretary under the preceding proviso before 
the determination becomes final: Provided further, That the Secretary of 
the Army, acting through the Chief of Engineers, is directed to use 
$17,000,000 of the funds appropriated herein to proceed with 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 Secretary of the Army, acting through the Chief of Engineers, 
is directed to use $5,400,000 of the funds appropriated herein to 
proceed with the 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 continue the Dickenson County Detailed Project Report as 
generally defined in Plan 4 of the Huntington District Engineer's Draft 
Supplement to the section 202 General Plan for Flood Damage Reduction 
dated April 1997, including all Russell Fork tributary streams within 
the County and special considerations as may be appropriate to address 
the unique relocations and resettlement needs for the flood prone 
communities within the County: Provided further, That the Secretary of 
the Army, acting through the Chief of Engineers, is directed to proceed 
with the construction of the Seward Harbor, Alaska, project, in 
accordance with the Report of the Chief of Engineers, dated June 8, 
1999, and the economic justification contained therein: Provided 
further, That the Secretary of the Army, acting through the Chief of 
Engineers, is directed and authorized to continue the work to replace 
and upgrade the dam and all

[[Page 117 STAT. 1830]]

connections to the existing system at Kake, Alaska: Provided further, 
That the Secretary of the Army, acting through the Chief of Engineers, 
is directed to proceed with the construction of the Wrangell Harbor, 
Alaska, project in accordance with the Chief of Engineer's report dated 
December 23, 1999: Provided further, That the Secretary of the Army, 
acting through the Chief of Engineers, is directed to use $33,400,000 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 Secretary of the Army, 
acting through the Chief of Engineers, is directed to use funds 
appropriated for the navigation project, Tampa Harbor, Florida, to carry 
out, as part of the project, construction of passing lanes in an area 
approximately 3.5 miles long, centered on Tampa Bay Cut B, if the 
Secretary determines that such construction is technically sound, 
environmentally acceptable, and cost effective: Provided further, That 
using $200,000 appropriated herein, the Secretary of the Army, acting 
through the Chief of Engineers, may develop an environmental impact 
statement for introducing non-native oyster species into the Chesapeake 
Bay: Provided further, That during preparation of the environmental 
impact statement, the Secretary may establish a scientific advisory body 
consisting of the Virginia Institute of Marine Science, the University 
of Maryland, and other appropriate research institutions to review the 
sufficiency of the environmental impact statement: Provided further, 
That in addition, the Secretary shall give consideration to the findings 
and recommendations of the National Academy of Sciences report on the 
introduction of non-native oyster species into the Chesapeake Bay in the 
preparation of the environmental impact statement: Provided further, 
That notwithstanding the cost sharing provisions of section 510(d) of 
the Water Resources Development Act of 1996 (110 Stat. 3760), the 
preparation of the environmental impact statement shall be cost shared 
50 percent Federal and 50 percent non-Federal, for an estimated cost of 
$2,000,000: Provided further, That the non-Federal sponsors may meet 
their 50 percent matching cost share through in-kind services: Provided 
further, That the Secretary determines that work performed by the non-
Federal sponsors is reasonable, allowable, allocable, and integral to 
the development of the environmental impact statement: Provided further, 
That the Secretary of the Army, acting through the Chief of Engineers, 
is directed to construct the Miami Harbor project, as recommended in the 
Miami Harbor Letter Report dated August 2002, as revised February 2003: 
Provided further, That using $500,000 of the funds appropriated herein, 
the Secretary of the Army, acting through the Chief of Engineers, is 
authorized and directed to plan, design, and initiate reconstruction of 
the Cape Girardeau, Missouri, project, originally authorized by the 
Flood Control Act of 1950, at an estimated total cost of $9,000,000, 
with cost sharing on the same basis as cost sharing for the project as 
originally authorized, if the Secretary determines that the 
reconstruction is technically sound and environmentally acceptable: 
Provided further, That the planned reconstruction shall be based on the 
most cost-effective engineering solution and shall require

[[Page 117 STAT. 1831]]

no further economic justification: Provided further, That the Secretary 
is directed to use $5,000,000 of the funds appropriated herein to 
 undertake the restoration of Tar Creek and Vicinity, Oklahoma, project.

    For expenses necessary for the flood damage reduction program for 
the Mississippi River alluvial valley below Cape Girardeau, Missouri, as 
authorized by law, $324,222,000, to remain available until expended: 
Provided, That the Secretary of the Army, acting through the Chief of 
Engineers, using $12,000,000 of the funds provided herein, is directed 
to continue design and real estate activities and to initiate the pump 
supply contract for the Yazoo Basin, Yazoo Backwater Pumping Plant, 
Mississippi: Provided further, That the pump supply contract shall be 
performed by awarding continuing contracts in accordance with 33 U.S.C. 
621: Provided further, That the Secretary of the Army, acting through 
the Chief of Engineers is directed, with funds previously appropriated, 
to continue construction of water withdrawal features of the Grand 
                       Prairie, Arkansas, project.

    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; for providing security for 
infrastructure owned and operated by, or on behalf of, the United States 
Army Corps of Engineers, including administrative buildings and 
facilities, laboratories, and the Washington Aqueduct; for the 
maintenance of harbor channels provided by a State, municipality, or 
other public agency that serve essential navigation needs of general 
commerce, where authorized by law; and for surveys and charting of 
northern and northwestern lakes and connecting waters, clearing and 
straightening channels, and removal of obstructions to navigation, 
$1,967,925,000, to remain available until expended, of which such sums 
as become available in the Harbor Maintenance Trust Fund, pursuant to 
Public Law 99-662 may be derived from that fund, and of which such sums 
as become available from the special account for the United States Army 
Corps of Engineers established by the Land and Water Conservation Act of 
1965, as amended (16 U.S.C. 460l-6a(i)), may 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 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 
fees have been collected: Provided, That of funds appropriated herein, 
for the Intracoastal Waterway, Delaware River to Chesapeake Bay, 
Delaware and Maryland, the Secretary of the Army, acting through the 
Chief of Engineers, is directed to reimburse the State of Delaware for 
normal operation and maintenance costs incurred by the State of Delaware 
for the SR1 Bridge from station 58+00 to station 293+00 between October 
1, 2003, and September 30, 2004: Provided

[[Page 117 STAT. 1832]]

further, That the Secretary of the Army, acting through the Chief of 
Engineers, is directed to use funds appropriated herein to rehabilitate 
the existing dredged material disposal site for the project for 
navigation, Bodega Bay Harbor, California, and to continue maintenance 
dredging of the Federal channel: Provided further, That the Secretary 
shall make suitable material excavated from the site as part of the 
rehabilitation effort available to the non-Federal sponsor, at no cost 
to the Federal Government, for use by the non-Federal sponsor in the 
development of public facilities: Provided further, That the Corps of 
Engineers shall not allocate any funds to deposit dredged material along 
the Laguna Madre portion of the Gulf Intracoastal Waterway except at the 
placement areas specified in the Dredged Material Management Plan in 
section 2.11 of the Final Environmental Impact Statement for Maintenance 
Dredging of the Gulf Intracoastal Waterway, Laguna Madre, Texas, Nueces, 
Kleberg, Kenedy, Willacy, and Cameron Counties, Texas, prepared by the 
Corps of Engineers dated September 2003: Provided further, That nothing 
in the above proviso shall prevent the Corps of Engineers from 
performing necessary maintenance operations along the Gulf Intracoastal 
Waterway if the following conditions are met: if the Corps proposes to 
use any placement areas that are not currently specified in the Dredged 
Material Management Plan and failure to use such alternative placement 
areas will result in the closure of any segment of the Gulf Intracoastal 

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