S. 2773 (Section 2124)
Navigation Capacity Improvements and Ecosystem Restoration
for the Upper Mississippi River and Illinois Waterway System
In their July 2004 joint statement, the Governors of the five States of the Upper Mississippi River Basin expressed support for the U.S. Army Corps of Engineers April 29, 2004 draft dual purpose plan for management of the Upper Mississippi River System. In particular, the Governors endorsed the 15‑year initial investment strategy for navigation improvements and ecosystem restoration on the Upper Mississippi and Illinois Rivers. Authorization of that 15‑year plan is embodied in Section 2124 of S. 2773, the Water Resources Development Act of 2004, as approved by the Senate Environment and Public Works Committee and reported August 25, 2004.
As the interstate body formed by the five Governors, the Upper Mississippi River Basin Association (UMRBA) supports Section 2124 of S. 2773, which provides a sound basis for authorizing navigation improvements and ecosystem restoration on the Upper Mississippi and Illinois Rivers. As Congress considers these legislative provisions, UMRBA offers the following comments, based on the Governors’ declaration that implementation of the Corps’ recommended plan must be integrated, balanced, adaptive, collaborative, and fairly funded.
Integrated — The Governors believe that “Ecosystem restoration should be added as a federally authorized project purpose on the Upper Mississippi River, thus providing a dual authority and mandating integrated planning and management by the Corps of Engineers.”
Section 2124(c)(1) modifies the operation of the river system “to address the cumulative environmental impacts of operation of the system and improve the ecological integrity of the Upper Mississippi River and Illinois River.” By so doing, the original navigation project purpose is expanded, thus establishing a dual management authority. This is an important provision that UMRBA believes must be included in the authorizing language.
Balanced — The Governors believe that “Ecosystem restoration and navigation improvements should move forward in tandem, so that measurable and substantial progress can be made toward both goals.”
Section 2124(d) includes a provision for “comparable progress,” which UMRBA believes is generally consistent with the Governors’ expressed desire that implementation of the plan be “balanced.” A balanced approach to implementation of navigation improvements and ecosystem restoration does not necessarily mean that either the total level of investment or annual funding allocations for these two activities should be identical, or even in a strict, fixed proportion. Rather, as the term “comparable progress” suggests, both activities should proceed concurrently, with steady progress made in reaching each goal without either being neglected. Carrying out the two mandates at “comparable rates,” as required by Section 2124(d), will necessitate establishing clear and measurable goals. It will also require a durable commitment by Congress to adequately fund both efforts. UMRBA believes that the provision for “comparable progress” is thus both a directive to the Corps of Engineers and an important statement of Congressional intent.
Adaptive — The Governors believe that “The long-term (50-year) Plan should be implemented incrementally and adaptively to accommodate dynamic natural and economic conditions, risk and uncertainty, and future advances in technology.…In particular, evaluation reports and checkpoints in the first 15 years will be critical in defining the scope of future investments.”
Section 2124 authorizes only the first increment in what is envisioned to be a long-term 50‑year plan for navigation improvements and ecosystem restoration. While this authorization is an essential first step, Congressional endorsement of the full Plan, as a “framework” for the future, would provide a helpful context for implementation, even if only the first increment is initially authorized.
Section 2124(c)(3) requires that ecosystem restoration goals, performance measures, baseline conditions, and monitoring plans be established. In addition, Section 2124(c)(5) requires implementation reports be submitted to Congress every four years, as the first 15‑year increment of the 50-year plan is implemented. These provisions lay the foundation for an adaptive management approach to ecosystem restoration, as envisioned in the Corps’ recommended plan, and are thus, in UMRBA’s view, a key element of the authorizing language.
However, the authorization for navigation improvements in Section 2124(b) does not reflect a similar recognition of the need for adaptive implementation. In particular, the approach that the Corps has recommended and the Governors have endorsed for implementing the navigation improvements plan calls for development of new economic models, monitoring of traffic and economic conditions, Congressional notifications and checkpoints, and an updated feasibility report on the need for additional navigation improvements in the future. UMRBA believes that the Section 2124(b) authorization must reflect this adaptive implementation strategy.
Collaborative — The Governors believe that “The Corps of Engineers must implement the Plan in collaboration with the basin states and other federal agencies having river-related responsibilities. Consultation and coordination on scientific, technical, and policy issues should utilize existing institutions, adapting them as necessary, but avoiding the establishment of new and potentially redundant bureaucracies.”
Section 2124(c)(5)(B) establishes a 15-member Advisory Panel to guide the Corps of Engineers in developing the implementation reports required to be submitted to Congress every four years. While collaboration is extremely important, it must be an integral part of the Corps of Engineers’ implementation strategy and not confined to preparation of periodic reports. In addition, there are numerous existing groups that could potentially serve this need for interagency and multi-disciplinary coordination and stakeholder involvement. Indeed, the Corps of Engineers, other federal agencies, States, and stakeholder groups in the basin are currently discussing ways to streamline and more effectively integrate existing coordination mechanisms, in anticipation of new program authorizations. Rather than establishing new and potentially redundant bureaucratic structures, existing coordination mechanisms should be encouraged to adapt and thrive.
Section 2124(c)(6) directs the Corps, in consultation with the National Academy of Sciences (NAS), to develop a ranking system for ecosystem restoration projects that gives priority to projects that restore natural river processes. Implementing a broad range of interdependent ecosystem restoration measures on a large and complex river, such as the Upper Mississippi River, must be based on sound science. The experience and views of independent scientists will be critical in establishing this scientific underpinning. However, there are a variety of factors that must be considered in developing a ranking system and ultimately determining which projects to implement and in what sequence. Thus, a ranking system devised by NAS will be helpful, but not determinant. In addition, NAS recommendations regarding the relative ranking of different project types will be most useful and credible if it is not prescribed in advance in the authorizing legislation.
Fairly Funded — The Governors believe that “the following ecosystem restoration costs must be fully federally funded: modifications to navigation structures or operations, measures on Corps project lands or national refuges, and measures in the main channel or directly connected backwaters below the ordinary high water mark.”
Section 2124(c)(2)(C) establishes cost sharing for authorized ecosystem restoration projects consistent with the cost sharing strategy recommended by the Corps of Engineers and endorsed by the Governors. This provision is critical to the future success and viability of Corps of Engineers’ ecosystem restoration efforts on the Upper Mississippi River and must be included in the authorizing language.
UMRBA also strongly supports Section 2124(c)(2)(C)(iii), which makes nongovernmental organizations eligible to serve as nonfederal sponsors.
The cost sharing provisions of Section 2124 could be further enhanced by inclusion of language clarifying that a) the value of lands and other real estate rights required for a project, regardless of the date of acquisition, should be credited towards the nonfederal share and reimbursed to the nonfederal sponsor, if those costs exceed the nonfederal share; and b) nonfederal sponsors should be eligible for credit for in-kind services.