UMRBA Update

 

January 29, 2002

 

 

Washington News

 

Nationwide Wetlands Permits---Amid continued controversy, the Corps of Engineers has reissued and modified the nationwide permits (NWPs) under its wetlands regulatory program.  The nationwide permits authorize certain wetlands dredging and filling activities that the Corps determines to have minimal individual and cumulative impacts.  NWPs do not entail the same project-specific review as the individual permitting process.  According to John Studt, Chief of the Corps’ Regulatory Branch, “the revised permits will do a better job of protecting aquatic ecosystems while simplifying some administrative burdens for the regulated public.”  The Corps received a wide range of comments in response to the proposed NWPs it released in August, with wetlands advocates claiming that the new permits would weaken protections and permittees maintaining that the changes would enhance efficiency with minimal environmental impacts.  Also attracting considerable public and media attention was the Interior Department’s failure to comment on the Corps’ proposal.  This has been widely attributed to Interior’s dissatisfaction with generally critical comments drafted by the Fish and Wildlife Service. 

 

Among the changes of note in the final permits:  the permissible acreage impacts under many NWPs will be reduced from 3 acres to ˝ acre; Corps districts will not be required to provide one-for-one acreage replacement on individual projects, but will be required to achieve at least that level of replacement on a programmatic basis; a previous requirement that impacts to intermittent streams affect no more than 300 linear feet will be waived, but the 300-foot limit will continue to apply to projects involving perennial streams; and a process will be established for reevaluating the controversial NWP 21, which governs certain mining-related activities.  The new NWPs, which will take effect on March 18, 2002 and expire on March 19, 2007, were published in the January 15 Federal Register.  Details are available at http://www.usace.army.mil/inet/functions/cw/hot_topics/. 

 

Spill Response Exercises---The Coast Guard, Environmental Protection Agency, Research and Special Programs Administration, and the Minerals Management Service published a proposed a schedule for the Preparedness for Response Exercise Program (PREP) in the January 22 Federal Register.  The triennial schedule proposes general times and locations in 2002-2004 for agency- and industry-led area exercises required under the Oil Pollution Act of 1990.  Area exercises involve the entire response community, including all levels of government as well as industry.  The proposed schedule includes the following:  EPA Region 7-led exercise in the 3rd quarter of 02, industry-led exercise involving a vessel in eastern Wisconsin in the 3rd quarter of 02, Coast Guard-led exercise in Duluth-Superior in the 2nd quarter of 04, industry-led exercise involving a fixed facility in EPA Region 5 in the 2nd quarter of 04, industry-led exercise involving a fixed facility in EPA Region 7 in the 2nd quarter of 04, and industry-led exercise involving a vessel in Chicago in the 4th quarter of 04.  The Coast Guard is accepting comments on the proposed PREP schedule through March 25, 2002.

 

New Water Quality Demonstration Model---EPA has released a new water quality demonstration model to assist in establishing total maximum daily loads (TMDLs) for impaired waters.  Specifically, the model allows users to explore options for allocating pollutant loads among point and nonpoint sources.  According to EPA, its is important “to consider a range of allocation options that are technically feasible and demonstrate programmatic consistency.”  Noting that establishing allocations requires balancing factors such as cost effectiveness and equity, EPA emphasizes that “final allocation determinations are policy decisions and should reflect public perceptions about acceptable tradeoffs between these measures.”  The demonstration model explores three allocation scenarios for a rural watershed in Idaho:  minimizing total abatement costs, equity in the percentage load reductions required of various stakeholders, and equity in the load allocations across stakeholders.  The demonstration model and related information are available at www.epa.gov/waterscience/models/allocation. 

 

CRP Contract Extensions---Responding to uncertainty created by the pending Farm Bill reauthorization, the Agriculture Department has announced that Conservation Reserve Program (CRP) contracts expiring this year may be extended for an additional year at the participant’s request.  In a January 11 announcement, USDA Secretary Ann Veneman described the decision as an effort to “help ensure the continued safeguarding of this sensitive land as a new farm bill is developed.”  The extension option applies to approximately 30,000 CRP contracts currently set to expire on September 30, 2002.  These contracts cover some 1.8 million acres.  Eligible contract holders have until May 31 of this year to apply for an extension.  Various limitations and conditions apply.  USDA does not plan a general CRP signup for new enrollments in 2002, but is maintaining its continuous enrollment option for certain high-priority acreage, including filter strips and riparian buffers.  Details are available at www.fsa.usda.gov/pas/FullStory.asp?StoryID=542. 

 

 

Committee Schedule

 

FY 03 Budgets---The House Water Resources and Environment Subcommittee will hold a February 14 hearing on the FY 03 agency budgets and priorities.  The subcommittee’s jurisdiction includes water-related programs and authorities in the Corps of Engineers, Environmental Protection Agency, Coast Guard, and Natural Resources Conservation Service.

 

 

Executive Action

 

Emergency Supplemental Appropriations---On January 10, the President signed the FY 02 defense appropriations bill (P.L. 107-117, H.R. 3338).  In addition to funding the Defense Department, the measure also provides $20 billion in supplemental funding, including $8.3 billion for homeland security.  Included in that amount are $139 million to enhance security at Corps of Engineers owned and operated facilities and funding for EPA activities, including drinking water vulnerability assessments and contingency planning manuals for wastewater treatment plants. In addition, $5 million in state and tribal assistance grants is provided for "counterterrorism coordinators to work with EPA and drinking water utilities in assessing drinking water safety."

 

 

River Basin News

 

National Academy of Sciences Report on Missouri River---After two years of study, the National Academy of Sciences (NAS) has issued its report on the Missouri River, claiming that “degradation of the Missouri River ecosystem will continue unless some portion of the hydrologic and geomorphic processes that sustained the pre-regulation Missouri River and floodplain ecosystem are restored.”  The NAS panel concluded that there is “a rich, extensive body of scientific research on the Missouri River ecosystem” and “the system’s broad ecological parameters and patterns are currently well understood.”  However, the research has not been adequately synthesized and the most significant unknowns are “how the ecosystem will respond to management actions designed to improve ecological conditions.”  Given those conclusions about the state of the science, the NAS recommends that the Corps of Engineers put a moratorium on its revision of the Master Manual and “immediately begin to develop and implement an adaptive management program designed to improve the conditions of the Missouri River ecosystem.”  In particular, NAS calls for establishment of a formal multiple-stakeholder group, which, with the help of an independent interdisciplinary scientific panel, would set management objectives and undertake adaptive management experiments and activities.  To ensure support of the adaptive management program, NAS recommends that Congress enact a Missouri River Protection and Recovery Act.

 

The NAS panel notes that the question of whether the Missouri River should continue to be operated to support navigation is a public policy issue and thus beyond their charge.  However, because operations to provide a steady and reliable navigation channel reduce the river’s natural hydrologic variability and “run counter to established river science,” NAS believes this issue is “crucial to the river’s future.”  The panel suggests that an “incremental analysis of the economics of retaining segments of the navigable waterway would be useful.”  In NAS’ view, “the case for retaining some navigation might be stronger if navigation were discontinued or less fully supported in those segments where it is economically inefficient.” 

 

Release of the NAS report on January 9 sparked immediate reaction from a broad range of stakeholders.  American Rivers hailed the NAS “for taking the boldest stance to date on Missouri River restoration.”  MARC 2000 claims the NAS findings vindicate the navigation industry’s criticisms of the Fish and Wildlife Service’s biological opinion for its “unproven scientific theory.”  However, they believe NAS recommended actions “are a direct challenge to sustaining navigation and economic activities in the floodplains.”  In its response to the NAS report, the Corps expressed its appreciation for the work of the panel, but rejected the recommendation for a moratorium on the Master Manual process.  “The U.S. Fish and Wildlife Service (USFWS) has issued a biological opinion that places three species in jeopardy. As written, this biological opinion along with the Endangered Species Act offers the Corps no choice but to continue the Master Manual revision process.”

 

The NAS report, The Missouri River Ecosystem: Exploring the Prospects for Recovery, is available at http://www.nap.edu/books/0309083141/html/.

 

Audit of Minnesota Water Quality Permitting---The Minnesota Office of the Legislative Auditor issued a report on January 24 critical of the Minnesota Pollution Control Agency’s (MPCA) water quality permitting program.  In particular, the auditor found that in July 2001, 54 percent of Minnesota’s “major” facilities with water quality permits and 41 percent of all water quality permittees operated with expired permits.  This permit backlog is well above the national rate of 25 percent and the U.S. EPA’s target of a 10 percent backlog by the end of 2001.  The backlog also appears to be growing.  In 2001, it took MPCA an average of 134 weeks to issue a permit, compared to 47 weeks in 1994.  The auditor cites a number of reasons for the backlog, some of which it acknowledges are not within MPCA’s direct control, but many of which are.  They include the increased complexity of permits, a growing number of challenges to draft permits by applicants and interested parties, MPCA staff reorganizations, temporary staff transfers to the feedlot program, problems with MPCA’s new permit information system, budget reductions in the point source program, and an increase in the number of facilities with permits.  The audit report also notes that MPCA facility inspections have declined. In 1995, 32 percent of permitted facilities were inspected.  However, MPCA inspected only 17 percent of the states’ 1,400 point source facilities in 2000 and 12 percent in 2001.

 

MPCA Commissioner Karen Studders calls the audit report “an accurate analysis of our water quality point source regulatory program.”  However, she notes that the MPCA organizational changes made in November 2001 “were designed in part to help us reduce the backlog.”  She also explains that the agency has sought increased funding from the state legislature for the point source program, noting that the fees paid to MPCA cover only 23 percent of the cost of operating the federally-delegated program.  Finally, Studders says, “it is important to re-emphasize to the Legislature and Minnesota public that protecting the quality of Minnesota’s waters involves more than controlling industry and municipalities through permits and enforcement…[the audit report] focused solely on point source pollution, which represents approximately 14% of Minnesota’s water pollution.  The remaining 86% of water pollution comes from non-point sources, including the activities of individual citizens.”  The auditor’s report is available at http://www.auditor.leg.state.mn.us/ped/2002/pe0203.htm and MPCA’s response is available at http://www.pca.state.mn.us/about/pubs/commissioner-011402.pdf. 

 

Wisconsin Nonpoint Source Rules---On January 22, the Wisconsin Natural Resources Board unanimously approved a package of nonpoint pollution rules setting performance standards for both agricultural and nonagricultural activities.  The rules are expected to be implemented over 10 years at an annual cost of $65 million.  “I don’t think we can overstate the fact that this is a historic action,” said Wisconsin DNR Secretary Darrell Bazzell.  Under the new rules, developers, contractors and others involved in construction activity would have to control soil and sediment from their construction sites.  Urban and urbanizing areas would have to meet standards for controlling toxics, sediment and other pollutants, and for educating their residents on proper yard and garden care to minimize polluted runoff.  In turn, homeowners could be required to follow certain practices regarding leaf collection and pet waste, and those applying fertilizer on acreages of more than 5 acres would be required to do so in accordance with a nutrient plan.  Farmers would be required to control soil erosion from their land; divert rainwater from manure storage areas, barnyards, and feedlots; and locate manure piles away from streams and lakes.  However, the agricultural standards will not be enforceable on existing operations unless the operator has access to cost-share assistance for at least 70 percent of the cost of adopting the measures.  The Board rejected a proposal for mandatory buffer strips, largely because such a requirement would make farmers ineligible for enrolling in the Conservation Reserve Enhancement Program and receiving federal payments for voluntarily installing buffers.

 

The rules now advance to state lawmakers for review.  In addition, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) is developing rules setting the technical standards to be used to meet the performance standards.  Those rules are scheduled for approval at the February 12 meeting of DATCP’s Board.  Additional information and text of the rules are available on the DNR website at http://www.dnr.state.wi.us/org/water/wm/nps/admrules.html and on the DATCP web site at http://datcp.state.wi.us/arm/regulation/prop-rules/atcp_50.html.

 

Iowa Water Quality Standards---Beginning this week, the Iowa Environmental Protection Commission will hold a series of public hearings across the state on amendments to Iowa’s water quality standards.  In particular, the proposed amendments would establish a new process for deriving effluent limits for point sources, provide new or changed numerical criteria for a number of compounds such as bromoform and endrin, and provide Section 401 certification for Corps of Engineers’ Section 404 nationwide and regional permits.  The proposed changes to the effluent derivation procedure are a result of concerns that the existing procedure produces overly conservative permit limits for some facilities and is not consistent with recent EPA guidance.  The proposed Section 401 certification is the result of the Corps’ recent actions to reissue nationwide permits and a proposal to revise a regional permit authorizing bridge and roadway construction across waters of the United States.  Additional information is available at http://www.state.ia.us/dnr/organiza/epd/wtresrce/wquality/files/phase2noia.pdf.

 

 

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. The Update is also available on the UMRBA’s web site at http://www.umrba.org/newsletter.htm.