UMRBA Update

 August 14, 2001

Washington News

·  TMDLs---On August 9, EPA proposed delaying implementation of its controversial July 2000 TMDL rule and issued a draft report estimating the costs of implementing TMDLs.  The proposed delay would postpone by 18 months the effective date of the Clinton Administration's July 2000 rule.  The rule is currently scheduled to take effect October 30, 2001.  EPA's proposal would also extend the deadline for the states' next 303(d) impaired waters lists from April 1, 2002 to October 1, 2002.  According to EPA's Federal Register notice, "a delay of the effective date [of the rule] would allow the Agency to solicit and carefully consider suggestions on how to structure the TMDL program to be effective and flexible and to ensure that it leads to workable solutions that will meet the Clean Water Act goals of restoring impaired waters. In addition, EPA believes that its decision voluntarily to reconsider the July 2000 rule may result in revisions to the rule that would resolve at least some of the issues raised in pending litigation in the D.C. Circuit Court of Appeals."

 EPA's draft report, "The National Costs of the Total Maximum Daily Load Program," was prepared in response to a Congressional directive.  According to the report, states would need to spend approximately $17 million more per year to gather the data needed to develop TMDLs for all their impaired waters.  Once the necessary data is in hand, EPA estimates that the states would spend up to $69 million annually for 15 years to develop TMDLs for the 20,000 waters currently listed as impaired.  These figures contrast sharply with EPA's July 2000 estimate that the states would spend approximately $23 million annually to implement the TMDL rule.  EPA anticipates that the states will become more efficient in developing TMDLs as they gain experience.  According to the report, strategies for increasing efficiency might include "bundling plans for different pollutants in the same water body, or for all water bodies within the same watershed, into a single TMDL."  The new report also estimates the costs of implementing the TMDL plans once they are developed.  Examining a spectrum of implementation approaches, EPA estimates that these costs could range from $900 million to $4.3 billion per year.  The report explains that inflexible, across-the-board requirements for all sources to adopt additional pollution control measures would result in the highest costs.  However, it also notes that even "the high-end estimate of more than $4 billion to fully implement the cleanup is a fraction of current national expenditures for clean water."    

 The deadline for comments on the draft report is December 7, 2001.  Comments on the proposal to delay the effective date of the July 2000 TMDL rule are due by September 10, 2001.  The report, EPA's Federal Register notices, and related materials are available at http://www.epa.gov/owow/tmdl/index.html.

·  Wetlands Permitting---The Corps of Engineers is seeking public comment on a proposal to reissue its nationwide permits (NWPs) for activities affecting wetlands and a related draft programmatic environmental impact statement (PEIS) for its NWP program.  The Corps' NWPs are general permits established at the national level to authorize certain types of activities that are deemed to have minimal impact on the aquatic environment.  While the general permits are established nationally, it is up to the individual Corps districts to determine whether a particular proposed project qualifies for a nationwide permit or must seek an individual permit.  The Corps' August 9 Federal Register notice would modify and extend all of the current NWPs, many which are scheduled to expire in February 2002.  Among the proposed changes is language that would be added to all NWPs to require projects in the 100-year floodplain to comply with FEMA-approved state and local floodplain management requirements.  The Corps is also proposing to change its mitigation requirements in order "to increase flexibility to allow the most environmentally appropriate type of mitigation."  Comments on the Corps' proposal to reissue its NWPs are due by September 24, 2001.  The Federal Register notice and other information related to the NWP reissuance are available at http://www.usace.army.mil/inet/functions/cw/hot_topics/proposal_reissue.htm.

 On July 31, the Corps also published a draft PEIS for its nationwide permit program.  Prepared by the Corps' Institute for Water Resources (IWR), the draft PEIS is intended "to review and evaluate the NWP program as a whole to ensure that the NWP program authorizes only activities with minimal individual and cumulative adverse effects on the aquatic environment."  The Corps committed to assessing the environmental impacts of its nationwide permit program when it issued several controversial modifications to NWP 26 in 1998.  The draft PEIS assesses a range of alternative approaches to the current NWP, but does not identify a preferred alternative, electing to leave that for the final PEIS.  However, the draft does identify several deficiencies in the current program that should be addressed to reduce or eliminate adverse environmental impacts.  These include enhancements to data management, cumulative impact analysis, and compensatory mitigation requirements.  Comments on the draft PEIS are due by September 14, 2001.  The draft PEIS is available on IWR's web site at http://www.iwr.usace.army.mil/iwr/regulatory/regulintro.htm.

·  Natural Resource Damage Assessment---On July 31, NOAA issued proposed amendments to its 1996 natural resource damage assessment (NRDA) regulations.  Issued pursuant to the 1990 Oil Pollution Act, NOAA's original regulations set forth how resource damages from oil spills are to be assessed.  The regulations were challenged in court, and the current proposed amendments address issues that were remanded to NOAA by the U.S. Court of Appeals for the District of Columbia.  More specifically, the amendments address a series of issues related to the resource trustees' authority to order removal of residual oil and how that relates to the EPA and Coast Guard's authority as response agencies.  The amendments also seek to clarify what legal costs trustees may seek to recover from responsible parties.  Comments on the proposed amendments are due by September 29, 2001.  NOAA's Federal Register notice is available at http://frwebgate4.access.gpo..gov/cgi-bin/waisgate.cgi?WAISdocID=5555516334+38+0+0&WAISaction=retrieve.

·  FEMA Performance---At the request of Senator Fred Thompson, Ranking Minority Member of the Senate Governmental Affairs Committee, the GAO has prepared a series of 24 reports evaluating the performance of several executive branch departments and agencies.  GAO reviewed performance plans and reports prepared by the agencies pursuant to the 1993 Government Performance and Results Act, examining several priority outcomes that Senator Thompson identified and also assessing a series of major management challenges that the GAO identified in consultation with the various departments' inspectors general.  GAO examined three key outcomes for the Federal Emergency Management Agency, including preventing or reducing harms and losses from future disasters through mitigation efforts.  According to GAO's report, FEMA "met the majority of its goals for this key outcome, which included such results as (1) entering into formal agreements with 11 agencies to support mitigation goals, (2) implementing building standards that increased the use and effectiveness of mitigation tools, and (3) refining and remeasuring savings achieved from flood-loss reduction."  FEMA estimates flood-loss reduction savings at $1 billion for FY 02.  The GAO also reviewed a number of FEMA's other major management challenges, including determining the cost-effectiveness of disaster mitigation efforts, reducing the cost of disaster assistance, and improving the financial condition of the National Flood Insurance Program.  FEMA reports at least some progress in meeting each of these challenges.  GAO's recommendations include measuring success not through overall growth in the number of flood insurance policies but through the participation rate among residents of flood-prone areas.  GAO's FEMA report is available at http://www.gao.gov/new.items/d01832.pdf.

 

New Bills

 

Committee Action

Among the more controversial provisions of the Committee bill is the cap on transfers from the Commodity Credit Corporation (CCC) to NRCS for technical assistance.  The bill limits such funding to $100 million per year, with a total cap of $850 million for the ten year authorization period.  The National Association of Conservation Districts contends that limiting technical assistance in this way "will directly compromise the effectiveness of the bill's financial assistance programs...and result in the loss of technical assistance to the vast majority of producers who do not participate in the CCC-funded Farm Bill conservation programs." 

 Of particular relevance to the Upper Mississippi River Basin (UMRB) are provisions establishing an Advisory Council to coordinate and share information on conservation practices, monitoring and modeling needs, and strategies for implementing conservation programs in the UMRB.  The Council would consist of two members appointed by each of the five basin state Governors from nongovernmental groups and one member from each State Technical Committee in the basin.  The Secretaries of Agriculture and the Interior are also directed to establish an Interagency Working Group to coordinate federal nutrient and sediment reduction efforts in the UMRB.  These two organizational requirements are taken directly from H.R. 1800, a more comprehensive bill addressing sediment and nutrient loss in the UMRB.  H.R. 1800 was introduced earlier in the session by Representative Ron Kind (D-WI) and others.

 During the Committee markup, there were reportedly several amendments that would have shifted funds out of conservation programs and into commodity programs or research and international trade endeavors.  In particular, the CRP was targeted for reductions because many commodity groups believe it hurts rural economies and U.S. trade because it takes land out of production.  While most of these amendments were rejected, so too were amendments that would have dramatically expanded the conservation programs beyond the increases already in the bill.  In particular, Ron Kind reportedly withdrew an amendment that would have incorporated the Working Lands Stewardship Act ( H.R. 2375) into the bill.  He has indicated that he may bring the amendment to the House floor after the August recess.

 

Floor Action

The Senate's floor consideration spanned two days, culminating in approval of the Senate's version of H.R. 2620 by a vote of 94 to 5.  The drinking water standard for arsenic was also a contentious issue in the Senate.  However, the Senate did not ultimately go as far as the House.   By a margin of 97 to 1, the Senate approved compromise language from Barbara Boxer (D-CA) that requires EPA to establish a new arsenic standard immediately.  Unlike the House, the Senate provision does not establish any minimum standard, but it does direct EPA to establish a standard that protects "those at greatest risk, such as infants, children, pregnant women, the elderly and those with a history of serious illness."  As part of the compromise deal, several prominent Democrats signed on as co-sponsors of legislation from Pete Domenici (R-NM) that would authorize an EPA grants program to aid communities in complying with the new arsenic standard.   The Senate rejected Jon Kyl's (R-AZ) attempt to modify the allocation formula for the clean water state revolving fund (SRF) program.  Instead, Senators adopted a Sense of the Senate provision that calls on the Environment and Public Works Committee to develop reauthorization language for the clean water SRF as soon as possible.  (See the July 24 UMRBA Update for details of the Senate amounts for specific EPA and FEMA accounts.)

 

Executive Action

 

River Basin News

According to General Griffin's guidance memo, "the refocused study will seek to improve the effectiveness of the navigation system in a manner that will achieve environmental sustainability for the navigation system and the resources that it directly impacts.  Further, the study will be comprehensive and holistic as it considers the multiple purpose uses of this system and seeks a robust strategy that will work well under a variety of future scenarios."  Consistent with this guidance, MVD is to prepare a first product by July 2002 that "define[s] navigation system and environmental sustainability goals, and present[s] a conceptual plan for modifying the existing navigation system to relieve lock congestion and achieve environmental sustainability."  The July 2002 report is to identify any additional authorities needed to complete this comprehensive assessment and may also recommend interim implementation measures.  A second report is to "provide a detailed, comprehensive implementation plan to serve as a framework for modifying the Federal navigation system to relieve lock congestion and achieve environmental sustainability."  General Griffin's memo does not set a deadline for the comprehensive plan.  Instead, he directs General Arnold to propose a schedule within 30 days.  In addition, MVD is to prepare a new project management plan (PMP) in collaboration with the federal Interagency Regional Working Group; address small scale and nonstructural measures, as well as alternatives that can be implemented by vessel operators; consider the capacity, environmental, and social impacts of any recommendations that would result in modal shifts; consider modifications to system operation and maintenance to improve the environment; consider the impacts of navigation system improvements on floodplain management considerations; apply previously used and accepted economic models in place of the ESSENCE and spatial equilibrium models; and present a range of scenarios for future commodity and barge traffic levels, rather than a specific set of projections.  In presenting alternative plans, MVD is to identify the economic costs and benefits of each plan, along with its beneficial and adverse environmental impacts and a summary describing the resulting environmental sustainability of each plan.  A press release describing the navigation study's restart is available at http://www.mvr.usace.army.mil/PublicAffairsOffice/NavigationStudy/NavStudyResumes.htm.

 For more information regarding Congressional action and links to related sites, visit http://thomas.loc.gov/.

 The UMRBA Update is produced by the staff of the Upper Mississippi River Basin Association, an organization formed by the Governors of Illinois, Iowa, Minnesota, Missouri, and Wisconsin to represent the states' common water resource interests.  Please direct questions and comments to bnaramore@umrba.org.