Comments of the

Upper Mississippi River Basin Association

and

Governors Liaison Committee

on the

Upper Mississippi River-Illinois Waterway Navigation Feasibility Study

Memorandum for Record

regarding

“Ecosystem Restoration – Discussion of

Authorities and Cost Sharing Options,

Draft – Revised 25 June”

July 11, 2003

Successful implementation of the recommended plan resulting from the UMR-IWW navigation feasibility study will depend, in part, on resolving outstanding questions related to ecosystem restoration authorities and attendant cost sharing issues. Toward that end, the June 25, 2003 draft Memorandum for Record (MFR), developed by the Corps of Engineers, provides helpful background material on a range of potentially viable options. In particular, the states offer the following observations and perspectives:

Background (Section 2)

Section 2 of the MFR describes a number of existing Corps authorities related to UMR ecosystem restoration. While not necessary for the purpose of this MFR, it may ultimately be helpful to further describe how these authorities have been employed on the UMR and why they are insufficient. Currently, the MFR describes the accomplishments of the EMP, but has no similar documentation of the use of Section 1135, 206, or 204 authorities on the UMRS. If, in fact, as the states are inclined to agree, existing authorities are limited in their ability to address ecosystem restoration needs related to the ongoing cumulative effects of the navigation system, it will be important to clearly explain this constraint.

Section 2 concludes by stating that the feasibility report will “evaluate the Federal interest in recommending a plan adding ecosystem restoration as a project purpose….” The states believe this is a fundamentally important potential outcome of the study. The addition of ecosystem restoration as a project purpose would affirm what in many respects is the philosophical foundation, if not the operational reality, of how the system is currently managed. More importantly, the addition of ecosystem restoration as a project purpose will presumably have real and substantial effects on how the project is operated and maintained. Thus, the states are eager to further explore how such a dual project purpose might be structured and how it would affect operation of the existing project.

Mitigation of Navigation Improvement Impacts (Section 4)

In describing the types of impacts that will be mitigated, Section 4 of the MFR specifically mentions the impacts of increased traffic levels. In addition, the states assume that the site-specific impacts associated with construction of navigation improvements will be included in the mitigation package, even though those impacts are not explicitly noted in the MFR.

Section 4 concludes by stating that mitigation measures will be “implemented concurrently with the construction of navigation improvements.” Such an approach assumes that the impacts to be mitigated can be fully identified in advance. While the states strongly support concurrent mitigation, the potential need to mitigate for future traffic impacts, subsequent to completion of the construction of the navigation improvements, must also be recognized. The challenge will be to design an approach to mitigation that accommodates adaptive management, recognizing that many of the impacts may currently be unknown or may, in fact, be different than currently anticipated. Thus, the states have previously offered the concept of a mitigation trust fund for consideration. Whether or not such a trust fund is the most appropriate means for addressing this need, whatever approach is ultimately employed must ensure that sufficient authority and resources will be available to fully mitigate the project impacts subsequent to completion of construction.

Basic Cost Sharing Options (Section 5)

Section 5 of the MFR sets forth three basic approaches to defining cost sharing responsibilities related to environmental restoration and enhancement and describes the policy and statutory basis for each, with examples of their application. This section provides useful background information and the states would simply observe that Option 5(b), “100 Percent Federal as Addressing Ongoing Impacts of a Federally Constructed and Operated and Maintained Project,” likely offers the most appropriate foundation for cost sharing on the UMRS. For all the reasons cited in the MFR, the UMRS is a river system with a major, and arguably unique, federal presence.

While the states do not believe that Option 5(c), based on Section 906(e) of WRDA 86, is a promising option in the context of the navigation feasibility study, it is, in fact, the current basis for EMP cost sharing. The MFR correctly states that, for the EMP, the 100 percent federal funding options in Section 906(e) have been limited to measures on land managed as a federal refuge. However, it is important to note that this limitation is a result of Administration policy and is not embodied in law. As provided in the EMP authorizing legislation, EMP habitat projects are to be cost shared in accordance with Section 906(e). In addition to projects on federal refuge lands, this would include projects that benefit federally-listed threatened or endangered species, species of national economic importance, species subject to international treaties, and anadromous fish.

Criteria for Determining Cost Sharing (Section 6)

The criteria options described in Section 6 offer distinctly different conceptual frameworks for determining cost share responsibilities. The states are pleased that, in addition to traditional criteria, the MFR includes some options that reach beyond current practice and seek to frame new approaches.

6(a): Measures attributable to on-going and cumulative existing project impacts = 100 percent federal

The states agree with the theoretical foundation of this option (i.e., that measures to address the ongoing and cumulative impacts of the navigation project should be 100 percent federally funded). However, as the MFR notes, implementing this option would require an extraordinarily high “degree of quantification and detailed accounting of cause and effect relationships.” Investing in such complicated and time-consuming analysis would not be prudent, particularly when more simplified approaches are available and appropriate.

6(b): Measures involving modification of project structures and operations, and measures located on project lands or federal refuges = 100 percent federal

This option seeks to simplify implementation of the premise that the federal government should bear the cost of measures to address the ongoing and cumulative impacts of the navigation project. In particular, the simplifying assumption is that these impacts are largely within the “project limits including Refuge lands.” The practical value of such an assumption makes this option preferable to Option 6(a), despite the fact that a variety of definitional issues remain to be resolved. In particular, clarification of the term “project lands” will be necessary.

6(c): Measures involving modification of structures and operations, measures on project lands and refuges lands, and measures in connected backwaters = 100 percent federal

This option appears to offer the most promise and is the one the states are most interested in exploring further. Option 6(c) adds “measures in backwater areas and side channels that are directly connected to the main channel regardless of present ownership” to those measures already defined as fully federally funded in Option 6(b). Expanding the simplifying assumption from Option 6(b) in this way offers a variety of advantages. As the MFR notes, extending 100 percent federal funding to land acquisition in backwaters and side channels directly connected to the main channel will help to address the disparity in the amount of federal land between the upper and lower river reaches. This disparity has been particularly problematic for the EMP. In addition, by broadening the 100 percent federal funding criteria to include connected backwaters and side channels, Option 6(c) more closely approximates the lands and waters affected by the navigation project, which is the underlying premise of both Options 6(b) and 6(c). It also eliminates one of the major disadvantages of Option 6(b). Namely, implementation of large scale measures like pool level management could become extremely complicated under Option 6(b). For example, the costs of lands and/or easements necessary to accommodate pool fluctuations resulting from water level management would likely need to be apportioned among a large number of nonfederal sponsors under Option 6(b). Presumably, this complicating factor will be at least partially diminished by providing that projects involving connected backwater and side channel areas be 100 percent federally funded.

With regard to measures that would be cost shared 65-35, the MFR suggests that the program authorization be structured to accommodate NGOs as nonfederal sponsors, credit for work-in-kind, and carry-over of excess land value credits between projects. The states generally support these types of provisions in cost shared programs and would be open to further discussion of the details.

6(d): Measures producing national benefits under Section 906(e) = 100 percent federal

Given the Administration’s past reluctance to fully use Section 906(e) as the basis for cost sharing in the EMP, it is difficult to imagine that it would be useful to explore this option further in the context of the navigation feasibility study. More importantly, this option is less attractive than the others because it shifts the federal nexus from the navigation project to species and land management definitions of federal interest. In so doing, this cost sharing option would also likely skew the program toward species-based management, rather than the broader and more appropriate objective of ecosystem sustainability.

While the above comments suggest that the states view Option 6(c) as the most appropriate cost share criteria, the states cannot guarantee that they will, in fact, be prepared to share in the costs of any particular project or participate at any given level of programmatic investment. The fiscal constraints faced by the states, including restrictions on binding future legislatures, preclude such commitments. Whether or not states will be able to cost share, regardless of which cost share option is ultimately recommended in the feasibility study, will depend on funding availability, among other considerations. This limitation will also be an important factor in the states’ ability to take on the potential increased O&M costs associated with measures on project lands managed under leasing arrangements.

Implementation Options (Section 7)

The states are not prepared to offer specific comments about the array of implementation options presented in the MFR, until the total package of recommended navigation and ecosystem restoration actions becomes clear. However, the legislative mechanisms used to authorize those actions will have a significant impact on how and when they are implemented. Recognizing that fact, the states offer the following general observations:

EMP — The states will be better able to judge the most appropriate long-term future role of the EMP when the full extent of ecosystem restoration recommendations related to the feasibility study is defined. However, the states agree with the assumption in the MFR that EMP “funding levels are not sufficient to meet the restoration goals and objectives” and that simply expanding the EMP program limits is not a viable option. The existing EMP authority should be retained and fully utilized, basically in its current form, for the near term.

Simple and Comprehensive — The states strongly urge that the vehicle for implementing the actions recommended in the feasibility study be both simple and comprehensive. Attempting to pursue a variety of separate authorization strategies for different components of the plan will diminish its integrity as a comprehensive and integrated package and will likely unnecessarily complicate implementation.

Programmatic vs. Project-Specific Authorizations — The merits of authorizing some ecosystem restoration actions under a broad program authority and others as specific projects need to be more fully explored. In particular, there may be important considerations related to the total size (i.e., cost) of the proposed actions that would suggest a need for separate authorizations. However, differences in the structures of separate authorizations may create impediments to managing ecosystem restoration in an integrated fashion, particularly if different measures and/or actions require different cost sharing approaches, under different authorities.

Subsequent Authorizations — Seeking authorization of certain projects at some future point in time, separate from authorization of other components of the dual purpose integrated plan, diminishes the already fragile assurances that all plan components will indeed be pursued in a balanced fashion. Admittedly, many of the large scale ecosystem restoration projects, such as fish passage or pool level management, will require more detailed planning than what is anticipated to be completed by the conclusion of the navigation feasibility study. However, deferring the basic authorization to undertake such projects could delay their implementation and weaken the relationship between the navigation and ecosystem improvements inherent in recommendation of an integrated plan.

Monitoring and Information Needs — None of the implementation options appear to explicitly accommodate future monitoring and information needs related to the adaptive management approach for implementing ecosystem restoration. Presumably, the recommended plan will identify how these needs will be met, including, as necessary, either enhancements to the LTRMP or other funding and authorization strategies. The states further assume that these data, analysis, and research needs will be met at full federal cost.

Other Needs and Issues —The implementation options described in the MFR are appropriately limited to actions directly within the study’s scope. That includes, as defined in the Interim Report, problems related to navigation traffic delays and environmental problems associated with “changes to ecosystem structure and function imposed by the operation and maintenance of the existing 9-Foot Channel Navigation Project and potential navigation system improvements.” While this relatively narrow focus is appropriate for the feasibility study, other national environmental issues, such as invasive species, nutrients and Gulf Hypoxia, and floodplain management are obviously related to environmental sustainability of the UMRS. Although the recommended plan is not designed to address all these issues, implementation of the plan should take advantage of opportunities to leverage the resources and programs of other federal agencies including the Fish and Wildlife Service, U.S. Department of Agriculture, and Environmental Protection Agency.