UMRBA Update

January 9, 2001

Washington News

• Wetland Regulation---In a potentially far-reaching ruling, on January 9, the Supreme Court, by a 5 to 4 margin, held that the Corps of Engineers exceeded its authority when it refused to issue a 404 permit to a consortium of suburban Chicago municipalities that wanted to use an abandoned sand and gravel pit, which had evolved into permanent and seasonal ponds, for a solid waste disposal site.  At issue was whether the "Migratory Bird Rule" could be used to regulate non-navigable isolated wetlands under Section 404(a) of the Clean Water Act (CWA).  Section 404 authorizes the Corps to issue permits allowing the discharge of dredged or fill material into "navigable waters."  According to the Court's summary of its ruling, "the CWA defines 'navigable waters' as 'the waters of the United States,' ... and the Corps’ regulations define such waters to include intrastate waters, 'the use,degradation or destruction of which could affect interstate or foreign commerce'.... In 1986, the Corps attempted to clarify its jurisdiction, stating, in what has been dubbed the 'Migratory Bird Rule,' that §404(a) extends to intrastate waters that, interalia, provide habitat for migratory birds....  The Seventh Circuit held that Congress has authority under the Commerce Clause to regulate intrastate waters and that the Migratory Bird Rule is a reasonable interpretation of the CWA."  However, the Supreme Court has now reversed that decision, finding that "the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited....  Respondents’ arguments, e.g., that the Migratory Bird Rule falls within Congress’ power to regulate intrastate activities that substantially affect interstate commerce, raise significant constitutional questions, yet there is nothing approaching a clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit such as the one at issue.  Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule would also result in a significant impingement of the States’ traditional and primary power over land and water use.  The Court thus reads the statute as written to avoid such significant constitutional and federalism questions and rejects the request for administrative deference."  The decision is available at http://www.supremecourtus.gov/opinions/00pdf/99-1178.pdf. 

• Wetland Loss---On January 9, Interior Secretary Bruce Babbitt and Agriculture Secretary Dan Glickman jointly released two new reports that both indicate there has been a dramatic slowdown in the loss of wetlands over the past decade.  The new report by the Fish and Wildlife Service, Status and Trends of Wetlands in the Conterminous United States 1986 to 1997, shows the rate of wetland loss in the United States has decreased to an estimated annual loss of 58,500 acres - an 80 percent reduction compared to the previous decade.  The national goal of no net wetlands losses still has not been met, however.  The study shows that between 1986 and 1997, forested wetlands and freshwater emergent wetlands continued to show the most losses.  Open water ponds have been increasing, yet there is concern that the long-term trend in the loss of vegetated wetlands may result in long-term adverse consequences.  The report attributes much of the overall decline in wetland loss to wetland policies and programs over the past decade, including more vigilant regulation of activities that impact wetlands, elimination of incentives for wetland drainage, acquisition and conservation easements, public education, and both government and private restoration actions.  The Upper Mississippi River Environmental Management Program (EMP) is among eight  wetland restoration programs from across the nation highlighted in the report.

USDA's National Resources Inventory, a report on the health of America's private lands, also shows significant reduction in wetland losses.  Prepared by the Natural Resources Conservation Service, the report found an average annual net loss from all sources of 32,600 acres of wetlands from 1992 to 1997.  USDA's National Resources Inventory differs from Interior's Wetlands Status and Trends report in its legislative mandate and purpose, as well as time frame, scope, focus, and methodologies.  The NRI provides information on the status and trends of soil, water, and related resources on privately owned lands on a national, regional, and state basis.  The Wetlands Status and Trends report examined wetlands losses and gains on all lands on a national basis.  Interior's report is available at  http://wetlands.fws.gov/bha/SandT/SandTReport.html.  USDA's National Resources Inventory website is under construction while the new data is being posted.

• Animal Feeding Operations---On December 15, EPA announced proposed new regulations to reduce water pollution from large industrial feedlot operations called "concentrated animal feeding operations" (CAFOs).  Under the Clean Water Act, CAFOs are defined as point sources of pollution and thus subject to NPDES permit regulations.  Currently, an animal feeding operation (AFO) is considered to be a CAFO if it has 1000 or more animal units.  EPA's proposal is asking for public comment on two alternative ways of defining a CAFO.  One proposed definition would include facilities with 500 or more animal units.  The other proposal would require a facility with 300 to 1000 animal units to have a permit if it meets certain risk-based conditions.  In addition, new animal types would be included in the CAFO definition.  Today, an estimated 2500 large and small livestock operations have enforceable permits.  In contrast, EPA estimates that the proposed new regulations would apply to 26,000 to 36,000 CAFOs (5 to 10 percent of all AFOs) and would address 60 to 70 percent of all AFO manure. 

The EPA proposal would also make several changes to the effluent guidelines for CAFOs, including guidelines concerning animal confinement and manure storage areas, and land application and off-site transfer of manure.  Of particular concern to producer groups is the proposal that processors and contract growers be co-permitted.  In other words, owners of animals would share liability for environmental damages with the feedlot operators who raise the animals.  EPA estimates that the proposed regulations will cost CAFO operators $850 million to $940 million per year.

Although EPA Administrator Carol Browner signed the proposed revisions on December 15, they have not yet been published in the Federal  Register, thus officially opening the 120-day comment period.  However, copies of the proposal are available on EPA's website.

• Climate Change---On December 15, the Pacific Institute and the US Geological Survey released a new report entitled Water: The Potential Consequences of Climate Variability and Change for the Water Resources of the United States.  Prepared as part of the U.S. Global Change Research Program, the report is the culmination of two years of scientific studies by representatives of government, corporate, and non-governmental organizations.  It concludes that climate changes in this century may have serious implications for U.S. water resources.  In particular:
• Snowfall and snowmelt will be significantly affected in the Sierra Nevada, Rocky Mountains, and the Pacific Northwest, leading to changes in the timing and magnitude of runoff.
• Rising sea levels will threaten coastal aquifers and water supplies.
• The risk of increased flooding may be as serious and widely distributed as the adverse impacts of drought.
• Changes such as increases in lake and stream temperatures, permafrost melting, and reductions in water clarity could seriously threaten fish and water species and critical habitats, such as wetlands.

Lead author Peter Gleick, President of the Pacific Institute, stated "sole reliance on traditional management responses is a mistake...water managers need to integrate possible climate change impacts into their planning processes and to build flexibility into the system to maximize our ability to respond to changing conditions."  The report is available at http://www.gcrio.org/.

• Pipeline Safety---In the December 21 Federal Register,  the U.S. Department of Transportation Research and Special Programs Administration (RSPA) published a final rule defining drinking water and ecological areas that are unusually sensitive to environmental damage if there is a hazardous liquid pipeline rupture.  RSPA will use this definition in current and future regulations, including the recently published rule on pipeline integrity management.  In addition RSPA has announced that it will use the National Pipeline Mapping System to identify and map the unusually sensitive areas, using existing drinking water and ecological resource data.  Illinois and Missouri are among the first ten states that RSPA will map.  According to RSPA Administrator Kelley Coyner, "this regulation paves the way to ensuring protection for almost all rare species and all public drinking water supplies that could be contaminated by a release where there is not a backup water supply. Identifying and mapping these unusually sensitive areas will help pipeline operators determine how and where additional prevention, mitigation and response measures are most needed.”  The final rule is available in the Federal Register or at RSPA's website.

• Hydropower Licensing---This week, the Federal Energy Regulatory Commission (FERC) is hosting a series of public meetings to receive comments on the existing hydropower licensing process and recommendations on how it might be improved.  In particular, under the Energy Act of 2000, FERC is required to prepare a comprehensive review of policies, procedures, and regulations for the licensing of hydroelectric projects to determine how to reduce the cost and time of obtaining a license.  FERC must report its findings to Congress, including any recommendations for legislative changes, by May 8, 2001.  The public meetings are scheduled for the week of January 8 in Washington, D.C.; Atlanta, GA; Albany, NY; Lansing, MI; Portland, OR; and Sacramento, CA.  Written comments must be submitted by February 1.  Additional information is available at FERC's website.

• Land and Water Conservation Fund---On December 15, Secretary of the Interior Bruce Babbitt announced the apportionment of $89 million in grants for outdoor recreation from the Land and Water Conservation Fund (LWCF).  The National Park Service administers the program, which provides matching grants on a 50/50 basis to state and local units of government for the acquisition and development of public outdoor recreation areas and facilities.  The amount available this year is more than double last year's apportionment.  "Every state and territory will have more parks and open spaces because of this huge increase in funding from the Land and Water Conservation Fund," said Secretary Babbitt.  "These grants will assist states and local communities in setting aside open space, wildlands, scenic areas and unique lands for permanent protection, while providing new outdoor recreation opportunities for all citizens."  The FY 2001 apportionment includes the following allocations to the five basin states: Illinois ($3,106,678), Iowa ($1,131,896), Minnesota ($1,562,313), Missouri ($1,678,488), and Wisconsin ($1,638,948).

• Nutrient Criteria---In the January 9 Federal Register, EPA announced the availability of Ecoregional Nutrient Criteria Documents for lakes and reservoirs in 8 ecoregions, for rivers and streams in 8 ecoregions, and for wetlands in one ecoregion.  Each document presents recommended criteria for causal parameters (total phosphorus and total nitrogen) and response variables (chlorophyll a and some form of turbidity).  EPA expects that states and tribes will use these ecoregional nutrient criteria as a starting point to identify more precise numeric levels for nutrients needed to protect aquatic life and recreational or other uses on a site-specific or subregion-specific basis.  EPA anticipates that more precise numerical levels will be developed on a smaller geographic scale than the ecoregional values presented in the nutrient water quality criteria documents.  States and tribes may also develop criteria using other scientifically defensible methods and appropriate water quality data or simply adopt EPA’s recommended water quality criteria in their water quality standards in the absence of any better data.  States and tribes are expected to complete a plan for developing and adopting nutrient criteria by the end of 2001 and to adopt or revise numeric nutrient criteria into state and tribal water quality standards by 2004.  The Federal Register notice indicates that the Ecoregional Nutrient Criteria documents are available at http://www.epa.gov/ost/standards/nutrient.html.  However, as of this Update publication, they do not yet appear to be posted.

New Bills

• H.R. 33 Habitat Enhancement on Croplands---Amends the Agricultural Market Transition Act by creating a new "Habitat Enhancement Rotation Option" to encourage agricultural producers to rest and rehabilitate up to 25 percent of their contract acreage for the purpose of enhancing soil and water conservation and providing wildlife habitat.  Under this voluntary program, eligible producers would receive USDA payments for enrolled acres that are planted with a soil conservation and wildlife enhancing cover crop for a period of 2 to 4 years.  In times of crop shortages, USDA may permit the producers to return the withdrawn acres to crop production, without loss of payments under their agreement.  Introduced January 3, 2001 by Doug Bereuter (R-NE).

Executive Action

• FY 2001 Commerce Appropriations---On December 21, President Clinton signed a combined measure appropriating funds for the District of Columbia and the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies (H.R. 4942, P.L. 106-553).  The bill included funding for the National Oceanic and Atmospheric Administration as well as the Maritime Administration.  NOAA received a total of $2.628 billion in FY 01 funding, including $630.8 million for the National Weather Service.  MarAd's funding includes $86.9 million for operations and training, $98.7 million for the maritime security program, and $34.0 million for the Title XI shipbuilding loan guarantee program and related administration.  Congress included language barring MarAd from exceeding $100.0 million in total loan guarantees without prior notification to the appropriations committees.  In signing H.R. 4942, President Clinton praised Congress for including more then $430 million for the Department of Commerce's portions of the Lands Legacy Initiative.  This includes $50.0 million for state programs through the wildlife conservation and restoration account.

• FY 2001 Consolidated Appropriations---On December 21, President Clinton brought another contentious annual appropriations cycle to a close by signing the Consolidated Appropriations Act (H.R. 4577, P.L. 106-554).  This omnibus bill combined the FY 01 Labor, Health, and Human Services; Treasury-Postal; and Legislative appropriations bills, along with provisions affecting a wide range of other departments and programs.  President Clinton praised the measure's relative lack of controversial environmental riders, noting that, "unlike earlier versions of the bill, the final bill excludes or modifies many provisions that would have changed our environmental protection and natural resource conservation laws without adequate public and congressional scrutiny."  P.L. 106-554 includes an additional $26.0 million for the USDA's Environmental Quality Incentives Program and adds the Farmland Protection Program to several programs eligible for existing funds.  In addition, the measure includes $600,000 for the Army Corps of Engineers to study the feasibility of restoring the natural rapids at Lower St. Anthony Falls.  The falls are on Mississippi in Minneapolis.  The study will require cost sharing.  One of the new law's more controversial elements is its inclusion of the Dakota Water Resources Act, which authorizes a variety of modifications to the Garrison Diversion project, including a water supply project for the Red River Valley.  Language in the measure specifically prohibits expenditure of funds to construct an inlet to manage lake levels at Devils Lake.

River Basin News

• Missouri River Draft Plan---On December 14, the Army Corps of Engineers released its draft plan for changes to its Missouri River operations.  The plan outlines how the Corps intends to implement elements of the Fish and Wildlife Service's November 30 biological opinion.  That opinion, developed pursuant to the Endangered Species Act, recommended a series of measures to address the impact of reservoir operations, bank stabilization, and related navigation project elements on the endangered pallid sturgeon and least tern and the threatened piping plover.  (See December 12, 2000 UMRBA Update for more details on the biological opinion.)  The draft plan, available on the Corps' web site, describes whether the Corps will implement the Service's recommendations as proposed, or with modifications.  In large part, the Corps' draft plan accepts the Service's recommendations and commits to implementing those related to adaptive management, unbalanced system regulation, habitat restoration, and species-specific measures.  However, the responses to the Service's more controversial recommendations related to flow modification are less definitive.  For example, the Service recommended a spring rise on average every three years and annual summer low flows downstream of Gavins Point Dam.  Downstream interests have raised concerns about the potential for flooding and impacts to navigation under such a flow management scenario.  In addition, the Corps cautions that "flow modifications below Gavins Point Dam must be coupled with physical habitat changes through mechanical or other means" to achieve the Service's stated objectives.  In its draft plan, the Corps commits to evaluating a range of flow options and various habitat restoration/creation options.  In addition, the Corps commits to working with the Missouri River Basin Association on a consensus-building effort for the Gavins Point releases.  The draft plan also identifies the overall process the Corps will employ for consulting with the Missouri basin's tribal governments and for coordinating with other basin stakeholders concerning the plan.  The public comment period on the draft plan runs through February 16.  The final implementation plan will be presented to the Service in early March; and the flow component of that plan will be the basis for the Master Manual preferred alternative, for which the Corps plans to publish a revised draft environmental impact statement in May 2001.

• Resource Conservation and Development Areas---Three portions of the Upper Mississippi River Basin are newly eligible for the USDA's Resource Conservation and Development (RC&D) Program.  This came as part of Agriculture Secretary Dan Glickman's January 4 designation of 33 new RC&D areas in 25 states.  Under the RC&D Program, locally led councils implement projects that address community development, land conservation, environmental enhancement, and water management.  The additions bring the nationwide total of RC&D areas to 348.  The new UMRB areas are Cedar Valley in Iowa (Bremer, Butler, Chickasaw, Floyd, and Mitchell Counties), Prairie Rivers in Iowa (Boone, Hamilton, Hardin, Marshall, Story, and Webster Counties), and Three Rivers in Minnesota (Blue Earth, Brown Faribault, LeSueur, Martin, Nicollet, Sibley, Waseca, and Watonwan Counties).  Portions of Illinois' Wabash watershed and Wisconsin's Lake Michigan watershed were also designated.  According to Secretary Glickman, the RC&D designations "will help people in rural areas increase conservation of natural resources, promote economic development, and solve local problems."  Information about the new designations is available on the USDA's web site.

• Minnesota's Basin Planning---The Minnesota Pollution Control Agency (MPCA) has initiated a basin planning effort for the Upper Mississippi River from its headwaters to its confluence with the St. Croix River.  According to MPCA, after completing a plan, "local officials and citizens will work together on organized watershed projects such a building buffer strips or reclaiming wetlands.  The goals of basin management include:  clearly identifying water quality priorities; integrating programs to address these priorities; and developing partnerships with other agencies, local government, environmental groups and citizens."  MPCA is dividing this portion of the UMRB into the following six planning units:  1) Crow Wing/Long Prairie/Red Eye, 2) Upper Mississippi Northern Main Stem Unit, 3) Rum River/Mille Lacs, 4) Sauk River/St. Cloud Watershed, 5) Crow River, and 6) Mississippi River Metro Watersheds.  The agency is currently forming advisory committees to oversee the process.  MPCA is also in various stages of developing basin plans for its eight other major basins, including the Mississippi basin from the St. Croix to the Iowa border and the St. Croix and Minnesota River Basins.  Information about the state's basin planning effort is available on MPCA's web site. 

• Stakeholder Network---St. Mary's University has launched the web site for its new Upper Mississippi Basin Stakeholder Network (UMBSN).  According to St. Mary's, the stakeholder network "is a process to connect farm organizations, environmental organizations, watershed management alliances, county land and water conservation districts, citizen action organizations, landowners, tribes, and federal/state agencies."  The UMBSN web site offers information and links for a wide range of programs, initiatives, organizations, and agencies related to land conservation, sediment and nutrient management, and water quality.   It also includes an extensive events and meeting calendar. 

• Devils Lake Outlet---The Corps of Engineers' St. Paul District is preparing a draft environmental impact statement (DEIS) for an emergency outlet from Devils Lake, North Dakota.  The district's notice of intent to prepare the DEIS appeared in the December 22 Federal Register.  Devils Lake is a terminal lake in northeastern North Dakota.  While it is in a subbasin of the Hudson Bay drainage system, the lake has not drained to Hudson Bay for centuries, according to the Corps.  However, lake levels have risen substantially in recent years, resulting in significant property damage and infrastructure costs.  In response to these rising levels, Congress provided funds for the Corps to design an outlet from Devils Lake to the Sheyenne River, which in turn drains to the Red River of the North.  Supporters say an outlet is needed to manage lake levels and prevent a damaging natural overflow to the Sheyenne River.  Opponents include Minnesota and Manitoba, both of which have raised concerns with the water quality and flood control implications of such an outlet.  The Corps' December notice outlines the alternatives that will likely be evaluated and the issues that will be considered.  The St. Paul District estimates that the DEIS will be released to the public in February 2002.

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.  Questions and comments may be directed to bnaramore@umrba.org.