UMRBA Update

 January 30, 2001

 Washington Update

Wisconsin DNR Secretary George Meyer warned that the impacts of the SWANCC decision could be dramatic, even under the Corps and EPA's reading.  According to Meyer, "we're cautiously optimistic that this initial interpretation of the court's decision will hold.  While it narrows the breadth of the decision, it appears that millions of Wisconsin wetland acres are still at risk.  We will know the precise acreage only after Corps biologists apply their new guidance."  Preliminary estimates from Wisconsin DNR indicate that 70 to 80 percent of the state's remaining 5.3 million acres of wetlands may no longer be protected under Section 404 of the CWA.  This includes "some of the state's most sensitive wetlands:  calcareous fens, ephemeral wetlands among them."  The lack of federal jurisdiction is especially significant because Wisconsin's state wetlands protections, like those of many other states, are integrally linked with federal law.  Under current state law, according to Franc Fennessy of Wisconsin DNR,  "if the Corps has no jurisdiction, then we have no jurisdiction."  Wisconsin DNR's web site notes that the agency is "urging state lawmakers and Congress to look at this issue and work with DNR to act to protect these wetlands."  On February 1, the Wisconsin Senate Environmental Resources Committee is scheduled to hear a bill designed to address potential gaps in wetlands protection stemming from the SWANCC decision.  Information related to the Supreme Court decision is available on the EPA and Wisconsin DNR web sites.

Also on the wetlands front, the January 17 Federal Register includes a final rule from the Corps and EPA revising the definition of discharge of dredged material.  This new rule comes in response to a 1998 federal appeals court decision striking down the Tulloch Rule, under which "incidental fallback" during wetlands drainage was equated with wetlands filling and thus subject to Section 404 regulation.  The court invalidated the Tulloch Rule as overly broad, leaving what some viewed as a loophole in wetland protection.  The Corps and EPA issued their proposed replacement for the Tulloch Rule back in August.  Homebuilders and others in the regulated community criticized the proposed rule's "rebuttable presumption" provision, under which a range of activities would have been presumed to result in more than incidental fallback.  Critics charged that this shifted the burden of proof to the regulated community.  According to EPA and the Corps, the final rule clarifies that no such shift has occurred and defines "incidental fallback."  The agencies maintain that the new rule protects wetlands and provides predictability for the regulated community while allowing "for case-by-case evaluations as to whether a regulable discharge of dredged material results from a particular activity, thus retaining necessary program flexibility to address the various fact-specific situations that are presented."  The text of the new rule and related materials are on EPA's web site.

·  Barge Numbering---The Coast Guard published a proposed rule requiring barge numbering in the January 11 Federal Register.  This rulemaking is pursuant to the 1992 Abandoned Barge Act, which prohibits the abandonment of barges in U.S. waters and mandates a numbering system for barges greater than 100 gross tons.  Capping a series of delays, the January 11 notice marks the Coast Guard's effort to implement the numbering requirement.  Under the proposed rule, barge owners would be required to obtain a unique number from the National Vessel Documentation Center for barges over 100 gross tons and to permanently mark both the inside and outside of the vessel with this number.  According to the Coast Guard, there are 20,000 undocumented barges greater than 100 gross tons in U.S. waters, 89 percent of which operate on the Mississippi River System and the Gulf Intracoastal Waterway.  The numbering system is designed to reduce barge abandonment and to facilitate tracking owners of abandoned barges.  A 1992 General Accounting Office report estimated that there were 82 pollution incidents associated with abandoned vessels between 1988 and 1992.  While expressing support for the goal of reducing pollution, American Waterways Operators questions the need for the new rule, noting that "the problems the [Abandoned Barge] Act was intended to solve have abated significantly since its passage."  Comments on the proposed rule are due by April 11, 2001.

In a related move, on January 16, the Fish and Wildlife Service also issued its final "Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System."  The policy, which was offered for public comment last October, provides guidance for implementing the clause of the National Wildlife Refuge System Improvement Act of 1997 directing the Secretary of the Interior to "ensure that the biological integrity, diversity, and environmental health of the System are maintained."  In particular, the policy provides guidelines for a) determining what conditions constitute biological integrity, diversity, and environmental health; b) preventing degradation of environmental conditions, and when appropriate, restoring lost or degraded components; and c) dealing with external threats to the environmental health of refuges.  The final policy is effective February 15, 2001. 

 

New Bills

In his introductory comments, Craig characterized the current hydropower licensing process as "extremely costly, time consuming, and, at times, arbitrary," adding "indeed, the current Commission licensing program is burdened with mixed mandates and redundant bureaucracy and prone to gridlock and litigation.... My bill will help remedy the inefficient and complex Commission licensing process by ensuring that federal agencies involved in the process act in a timely and accountable manner."

 

River Basin News

According to Wisconsin DNR, "under the revised proposed rules ... agricultural operations would need to meet standards for applying fertilizer, controlling soil erosion from cropland, and managing manure.  But grant programs would help farmers offset the lion’s share of those costs, and DNR would not be able to enforce those standards against specific farmers unless the state has paid at least 70 percent of the cost of controlling that nonpoint source pollution."  The new rules also include performance standards for municipal storm water control and for soil erosion and stormwater management at construction sites.  Municipalities and other non-agricultural operators would be held to the standards regardless of whether there was state money to help them cover some of the cost of controlling the runoff.  However, a competitive urban storm water and runoff management grant program would be available to help defray costs.  Additional background information, including input from the public hearings and the new draft rules, is available at DNR's website.

·         Minnesota's Nonpoint Source Management Program Plan---The Minnesota Pollution Control Agency is asking for public comment on its "Minnesota 2001-2005 Nonpoint Source Management Program Plan."  The plan is a requirement for Minnesota to remain eligible for EPA grants under Section 319 of the federal Clean Water Act.  The draft plan includes an updated assessment of nonpoint sources of pollution, a watershed planning and management framework, and detailed strategies for each water resource (i.e. groundwater, lakes, rivers and streams, and wetlands) and for activities such as monitoring, feedlots, agricultural erosion, agricultural pesticides, urban runoff, forestry, mining, and atmospheric deposition.  The comment period on the draft plan ends February 23, 2001.