UMRBA Update

January 4, 2002

Washington News

Wetlands Jurisdiction---Describing growing inconsistencies in wetlands jurisdiction decisions as “untenable,” the Association of State Wetlands Managers (ASWM) and Association of State Floodplain Managers (ASFM) have released a joint position paper that calls on the Environmental Protection Agency to issue definitive guidance interpreting the Supreme Court’s January 2001 ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).  In the SWANCC decision, the Court held that federal jurisdiction cannot be extended to non-navigable, isolated, intrastate wetlands solely on the basis of the use of such wetlands by migratory birds.  However, according to the position paper, Corps and EPA field offices have adopted widely varying interpretations of the ruling, with some viewing the decision as much more far-reaching than others.  Emphasizing the need for clarity and EPA’s “final authority on what constitutes ‘water of the United States’ under the [Clean Water Act],” ASWM and ASFM are urging EPA Administrator Christine Whitman to issue guidance that:  1) clarifies that all regulatory definitions of “waters of the United States” remain effective; 2) establishes that all pre-SWANCC wetlands permits remain valid and enforceable; 3) establishes a presumption that all wetlands in or abutting the 100-year floodplain are subject to federal jurisdiction; 4) clarifies that “tributaries” include groundwater tributaries and human-built structures; and 5) extend the interstate commerce test to include consideration of aggregate impacts.  In addition, the position paper calls on EPA and the Corps to jointly identify jurisdictional wetlands on a state-by-state or regional basis.  The position paper is available at http://aswm.org/swancc/position.pdf. 

Wetlands Mitigation---Responding to a chorus of criticism, the Corps of Engineers has asked other federal agencies to comment on its October 31, 2001 guidance letter concerning compensatory wetlands mitigation projects.  The Corps’ October Regulatory Guidance Letter (RGL) came in response to a June 2001 report by the National Research Council (NRC).  According to the Corps, the NRC report "faulted the Corps' mitigation in several ways, including failure of mitigation projects, lack of planned mitigation projects being built, the Corps not taking a watershed approach to mitigation, and too much reliance on onsite mitigation, which often fails because of altered hydrology on the site where draining and filling aquatic areas occurs."  The Corps’ RGL states that "all mitigation required by the Corps should be based on a consideration of regional aquatic resource requirements… and take an ecosystem approach to the formulation of compensatory mitigation projects, considering the resource needs of immediate and nearby watersheds."  However, many wetlands advocates have criticized the October RGL as representing a departure from the “no net loss” of wetlands principle adopted in the first Bush Administration.  On December 18, 2001, the Corps formally asked other federal agencies to comment on the RGL by March 1, 2002.  According to General Robert Griffin, the Corps’ Director of Civil Works, “we want to make a sincere effort to address the concerns that have been raised in order to ensure proper protections to the aquatic ecosystem.”  Assistant Secretary of the Army for Civil Works Mike Parker will oversee any revisions.  A press release concerning the request for federal agency comment and related information are available at http://www.usace.army.mil/inet/functions/cw/hot_topics/fedagcycomment.htm . 

Pre-Disaster Mitigation Grants---In a December 26, 2001 Federal Register Notice, the Federal Emergency Management Agency announced the availability of one-time pre-disaster mitigation grants.  Each state is eligible for a $50,000 grant “to prepare for and develop processes and procedures to implement the Pre-Disaster Mitigation (PDM) program” authorized in the Disaster Mitigation Act of 2000.  The aim of the grant is to ensure that states are prepared to implement the new PDM program and to coordinate pre-disaster mitigation with other state mitigation programs and activities.  Grant applications are due to the appropriate FEMA regional office by January 11, 2002.

Dam Security---The Interagency Forum on Infrastructure Protection (IFIP) has developed a step-by-step process for assessing security at the nation’s 75,000 dams, with the aim of reducing the vulnerability of these facilities to terrorist attack.  The Risk Assessment Methodology for Dams (RAM-D) guides owners and operators in assessing the specific circumstances of their dam.  This includes identifying potential adversaries, vulnerabilities, consequences of attack, and existing security measures.  RAM-D then analyzes the costs and benefits of potential security upgrades.  RAM-D’s developer, the IFIP, includes representatives of the Army Corps of Engineers, Bureau of Reclamation, FBI, Sandia National Laboratories, and other experts.  RAM-D is based on risk assessment methods Sandia developed to protect U.S. nuclear weapons facilities.  The IFIP is also developing a similar process for operators of power transmission systems.  Information about RAM-D is available from Sandia at 505-844-2311.

New Bills

H.R. 3558 “Species Protection and Conservation of the Environment Act”---Authorizes several new grant programs designed to control harmful non-native species and conserve and protect native species and habitats.  Under the Native Species Protection Assessment Grant Program, states would receive funding to identify harmful exotic species and identify ways to control those exotics and protect native habitats and species.  The grants would require a 25 percent non-federal cost-share, and the assessments would be submitted to the Fish and Wildlife Service for approval.  Upon approval, the state, and local governments and private individuals in within the state, would be eligible for assistance under the Aldo Leopold Native Heritage Grant Program.  This federal funding would pay up to 75 percent of the costs of projects to benefit native species and habitat and to control harmful non-native species.  No non-federal match would be required for elements of projects on federal land.  Operation and maintenance of projects on non-federal land would be borne entirely by the non-federal sponsor.  The bill would also authorize refuge system demonstration projects to promote ecologically based strategies to control exotics on refuges.  In addition, at the request of a Governor, the Interior Secretary could provide emergency assistance for rapid response to outbreaks of non-native species where such response holds promise for eradicating or controlling the species.  Each of the programs includes monitoring and reporting requirements and requires the Interior Department to consult with the National Invasive Species Council.  FY 03 appropriations would be authorized as follows:  $20.0 million for the Native Species Protection Assessment Grant Program, $50.0 million for the Aldo Leopold Native Heritage Grant Program, $10.0 million for refuge system demonstration projects, and $10.0 million for rapid response assistance.  Sums as necessary are authorized for the four programs in FY 04-08.  Introduced December 20, 2001 by Representatives Nick Rahall (D-WV), Wayne Gilchrest (R-MD), and Robert Underwood (D-Guam).

H.R. 3570 “Lewis and Clark Voyage of Scientific Discovery Act”---Directs the Interior Secretary to “monitor the health of the Missouri River and measure biological, chemical, and physical responses to changes in river management and other significant variables.”  Text of the bill is not yet available.  However, in introducing the legislation on December 20, 2001, Representative Doug Bereuter (R-NE) described the measure as a “comprehensive effort to foster the better management of the biological and physical health of the Missouri River.”

Floor Action

[Note:  Congress adjourned on December 20 and will reconvene on January 23 to begin the 2^nd session of the 107^th Congress.] 

Farm Bill---After nearly three weeks of debate and three failed cloture votes, the Senate adjourned on December 20 without passing a 2001 Farm Bill.  Agriculture Committee Chair Tom Harkin (D-IA) and Senate Majority Leader Tom Daschle (D-SD) had been pressing hard for passage of a Farm Bill before year’s end and accused Republicans of stalling.  There were 150 amendments to Harkin’s bill (S.1731) submitted during the final weeks of debate, including a substitute supported by the White House and offered by Thad Cochran (R-MS) and Pat Roberts (R-KS).  Following the final cloture vote, a disappointed and angry Harkin said “When Congress comes back in January, I’ll be here, and I’m bringing the Farm Bill with me.”

Water Security---In the closing days of its session, Congress advanced two of the many recent bills related to water security.  On December 18, the House passed H.R. 3178, the Water Infrastructure Security and Research Development Act.  The bill authorizes $60 million in grants over five years for research and development of technologies to prevent, detect, and respond to physical and cyber threats to water supply infrastructure.  On December 20, the Senate passed S.1608, authorizing EPA grants to drinking water and wastewater facilities to make immediate short-term physical security improvements.  Also on December 20, the Senate passed a substitute version of H.R. 3448, the Bioterrorism Preparedness Act.  In contrast to the version of the bill approved by the House a week earlier, the Senate substitute does not include any specific provisions related to water security.  The House measure includes requirements for vulnerability assessments of water supply systems.

Pittman-Robertson---On December 20, the Senate passed S. 990, the American Wildlife Enhancement Act, as reported by the Senate Environment and Public Works Committee on December 13.   Title I authorizes additional funds for the popular Pittman-Robertson program to go to states for conservation of non-game species.  Title II authorizes the Secretary of the Interior to provide financial assistance to small private landowners who would like to conserve habitats for threatened and endangered species found on their land.  Title III establishes a new competitive grant fund that would allow one or more states to apply for a grant to protect an area of regional or national significance.  Title IV establishes a program for the conservation and restoration of shrub and grassland.

Coast Guard Authorization---On December 20, the House passed H.R. 3507, the FY 02 Coast Guard Authorization Act, which had been introduced just two days before.  The bill authorizes FY 02 appropriations of $4.21 billion for operation and maintenance of the Coast Guard; $717.8 million for aids to navigation, shore and offshore facilities, vessels, and other equipment; and $21.7 million for research and development.  In addition, the bill includes a wide variety of provisions related to maritime policy, personnel management, and maritime improvements.  A number of Coast Guard advisory groups are also renewed through FY 05, including the Lower Mississippi River Waterway Advisory Committee, the Navigation Safety Advisory Council, the National Boating Safety Advisory Council, and the Towing Safety Advisory Committee.

Emergency Supplemental Appropriations---On December 20, both the House and Senate easily passed the conference report on the FY 02 defense appropriations bill (H.R. 3338, H.Rpt. 107-350).  In addition to funding the Defense Department in FY 02, the bill 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.” 

Executive Action

FY 02 Transportation Appropriations---On December 18, President Bush signed the FY 02 transportation spending bill into law (H.R. 2299, P.L. 107-87).  The House and Senate had approved the measure’s conference report on November 30 and December 4, respectively.  The final bill provides $5 billion for the Coast Guard, an increase of $418 million (9 percent) over fiscal year 2001 enacted levels and $25 million below the budget request. This includes an increase of $200 million for the Coast Guard’s operating account.

River Basin News

Wisconsin’s Nonpoint Source Rules---Wisconsin is nearing completion on what Department of Natural Resources Secretary Darrell Bezzell describes as “the most comprehensive set of measures in the country to reduce polluted runoff.  This is groundbreaking work, and it's difficult to overstate how important they will be in providing all of us -- urban residents, farmers, developers, municipalities, highway workers and golf course owners -- the tools we need to do the right thing to protect and improve our waters.”  The state’s multi-year, interagency effort to revise its nonpoint source pollution control program will come before the Wisconsin Natural Resources Board for consideration at its January 22-23, 2002 meeting.  The proposed rules include certain mandatory performance standards for farmers, municipalities, developers, and others.  However, the agricultural standards will not be enforceable on existing operations unless the operator has had access to cost-share assistance for at least 70 percent of the costs of adopting the measures. 

In a fairly recent change, mandatory buffer strips have been dropped from the proposed list of agricultural performance standards.  According to Wisconsin DNR, agricultural groups had supported buffer strips ranging from 10 to 35 feet for inclusion in the mandatory practices.  However, USDA informed the state the mandatory buffers would threaten a portion of the $200 million in federal funding that Wisconsin anticipates through the Conservation Reserve Enhancement Program.  The state’s agreement with USDA includes provisions for voluntary buffer strips.  According to Al Shea, who heads Wisconsin DNR’s watershed management bureau, “we didn’t want to put anything in place that would jeopardize that critical federal funding for buffer strips.”  In addition, state water quality managers were concerned by research indicating that buffer strips must be at least 35-feet wide to be effective at controlling sediment and phosphorus runoff.  Citing the cost and potential inefficacy of narrower strips, they suggested dropping the mandatory buffer strips to ensure that adequate state resources are available to cost-share more effective conservation measures, including contour farming and leaving crop residue.  Press releases summarizing recent developments are available at http://www.dnr.state.wi.us/org/caer/ce/news/on/#art4.  The text of the proposed new rules is available at http://www.dnr.state.wi.us/org/water/wm/nps/admrules.html. 

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.