[Senate Report 112-124]
[From the U.S. Government Publishing Office]
Calendar No. 264
112th Congress Report
SENATE
2d Session 112-124
======================================================================
ST. CROIX RIVER CROSSING PROJECT
AUTHORIZATION ACT
_______
January 13, 2012.--Ordered to be printed
Filed, under authority of the order of the Senate of December 17, 2011
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1134]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1134) to authorize the St. Croix River
Crossing Project with appropriate mitigation measures to
promote river values, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill, as amended, do pass.
The amendment is as follows:
On page 2, after line 10, add the following:
SEC. 3. OFFSET.
To provide an offset for the funds made available to carry out this
Act, there is rescinded from the Department of the Interior franchise
fund authorized under section 113 of division A of title I of Public
Law 104-208 (31 U.S.C. 501 note; 110 Stat. 3009-181) $8,000,000.
SEC. 4. BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of complying
with the Statutory Pay-As-You-Go-Act of 2010, shall be determined by
reference to the latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for this Act, submitted for printing in the Congressional
Record by the Chairman of the Senate Budget Committee, provided that
such statement has been submitted prior to the vote on passage.
PURPOSE
The purpose of S. 1134 is to authorize the head of any
Federal agency or department to authorize and assist in the
construction of a bridge over the St. Croix River along the
Minnesota-Wisconsin border, if certain mitigation requirements
are satisfied.
BACKGROUND AND NEED
The St. Croix River stretches approximately 160 miles from
its headwaters in northwestern Wisconsin to its confluence with
the Mississippi River south of Minneapolis. The lower 125 miles
of the river form the boundary between Minnesota and Wisconsin.
In 1968, a portion of the St. Croix River was designated as
one of the original components of the National Wild and Scenic
Rivers System. In 1972, Public Law 92-560 added 52 miles of the
Lower St. Croix River to the system, with the upper 27 miles
administered by the Secretary of the Interior and the lower 25
miles to be designated upon application by the Governors of
Minnesota and Wisconsin, which occurred in 1976. The first 10
miles of the Lower St. Croix are administered as a ``scenic''
river under the Wild and Scenic Rivers Act, and the downstream
42 miles, including the segment that would be affected by S.
1134, are administered as ``recreational.'' The National Park
Service administers the designated rivers, along with a
tributary, the Namekagon River, as the St. Croix National
Scenic Riverway.
Several bridges cross the St. Croix and Lower St. Croix
rivers, including the Stillwater Lift Bridge, which connects
the towns of Stillwater, Minnesota and Houlton, Wisconsin. The
bridge was built in 1931 and includes a 140-foot vertical lift
span which can be raised to accommodate river traffic. The
bridge, which is listed on the National Register of Historic
Places, accommodates only two lanes of traffic, and during busy
travel periods is the source of lengthy backups.
In 1995 the Federal Highway Administration (FHWA), along
with the Minnesota and Wisconsin Departments of Transportation,
proposed construction of a new four-lane bridge that would
cross the river about a mile south of the Stillwater Lift
Bridge.
In response to a legal challenge to the proposal, the
National Park Service prepared a section 7 evaluation. Section
7(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1278(a))
precludes any department or agency of the United States from
assisting ``by loan, grant, or otherwise, in the construction
of any water resources project that would have a direct and
adverse effect on the values for which such river was
designated, as determined by the Secretary charged with its
administration.''
The National Park Service completed its evaluation in
December 1996 and concluded that the proposed bridge would have
a direct and adverse impact on the scenic and recreational
values of the Lower St. Croix River, and that no mitigation
package could adequately offset the negative impact.
After an unsuccessful appeal of the section 7 evaluation,
the FHWA and the Wisconsin and Minnesota Departments of
Transportation developed a new proposal, following consultation
with interested parties. In August 2004 the FHWA and state
agencies identified new bridge proposals as part of a
supplemental environmental impact statement process. One of the
proposals included construction of a four-lane highway bridge
south of the 1995 proposal.
In October 2005, the National Park Service prepared another
section 7 evaluation. This evaluation concluded that the
proposed bridge would have a direct and adverse impact on the
river's recreational and scenic values, but found that those
impacts could be offset with a mitigation package, which were
described in a 2006 memorandum of understanding signed by the
FHWA and National Park Service. In November 2006 the FHWA
issued a Record of Decision, with the proposed bridge as its
selected alternative. The decision was subsequently challenged
in Federal court.
In March 2010, the United States District Court for the
District of Minnesota concluded that the Park Service's 2005
section 7 evaluation was arbitrary and capricious in that it
ignored its 1996 evaluation which came to an opposite
conclusion and did not explain how it came to a different
conclusion in the subsequent evaluation.
Following that decision, the Park Service revised its
section 7 evaluation in October 2010 and found, consistent with
the first evaluation, that the proposed bridge would have a
direct and adverse effect on the river's recreational and
scenic values. The Park Service also concluded that no
mitigation package could offset the direct and adverse impact.
The National Park Service letter to the FHWA noted that while
the Park Service did not believe a mitigation package could be
effective, it strongly supported the inclusion of the previous
mitigation package if the bridge was ultimately authorized.
As a result of the Federal court decision and subsequent
determination of direct and adverse effect by the National Park
Service, legislation is necessary to allow construction of the
new bridge to proceed. S. 1134 would authorize the FHWA and
other appropriate Federal agencies to assist in the
construction of the proposed bridge, notwithstanding section 7
of the Wild and Scenic Rivers Act, if the mitigation items
described in the 2006 memorandum of understanding are included
as enforceable provisions.
LEGISLATIVE HISTORY
S. 1134 was introduced by Senators Klobuchar, Franken,
Kohl, and Johnson of Wisconsin on May 26, 2011. The
Subcommittee on National Parks held a hearing on S. 1134 on
July 28, 2011. At its business meeting on November 10, 2011,
the Committee on Energy and Natural Resources ordered S. 1134
favorably reported with an amendment.
COMMITTEE RECOMMENDATION
The Committee on Energy and Natural Resources, in open
business session on November 10, 2011, by a voice vote of a
quorum present, recommends that the Senate pass S. 1134, if
amended as described herein. Senators Bingaman, Udall,
Cantwell, and Sanders asked to be recorded as opposing the
measure.
COMMITTEE AMENDMENT
During its consideration of S. 1134, the Committee adopted
an amendment adding two new sections to the bill. Section 3
would provide an offset for the funds made available to carry
out the Act by rescinding $8 million from the Department of the
Interior franchise fund account authorized under section 113 of
division A of title I of Public Law 104-208. (Although the
Committee had not received a cost estimate from the
Congressional Budget Office at the time S. 1134 was ordered
reported, the CBO cost estimate for H.R. 850, the House
companion measure, indicated enactment of that bill would
increase direct spending by $8 million over the 2012-2021
period).
The amendment also adds a new section 4 which provides how
budgetary effects of the bill should be determined.
SECTION-BY-SECTION ANALYSIS
Section 1 contains the short title, the ``St. Croix River
Crossing Project Authorization Act.''
Section 2 states that, notwithstanding section 7(a) of the
Wild and Scenic Rivers Act (16 U.S.C. 1278(a)), the head of any
Federal department or agency may authorize and assist in the
construction of a new extradosed bridge crossing the St. Croix
River at a location approximately six miles north of the
existing I-94 bridge, if certain mitigation items described in
a 2006 Memorandum of Understanding signed by the National Park
Service and the Federal Highway Administration are included.
Section 3 provides that $8,000,000 is rescinded from the
Department of the Interior franchise fund authorized under
section 113 of division A of title I of Public Law 104-208 to
provide an offset for the funds made available to carry out
this Act.
Section 4 contains standard language directing how
budgetary effects of the bill should be determined.
COST AND BUDGETARY CONSIDERATIONS
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the Internet
at www.cbo.gov.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1134.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1134, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 1134, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the National Park Service at the
July 28, 2011, Subcommittee on National Parks hearing on S.
1134 follows.
Statement of Peggy O'Dell, Deputy Director, National Park Service,
Department of the Interior
Mr. Chairman, thank you for the opportunity to present the
views of the Department of the Interior (Department) regarding
S. 1134, a bill to authorize the St. Croix River Crossing
Project with appropriate mitigation measures to promote river
values. This bill would allow construction of a new extradosed
bridge crossing the St. Croix River if the mitigation items are
included as enforceable conditions.
The Department cannot support this legislation, as the NPS
determined that the St. Croix River Project would have a direct
and adverse impact to the river and that these impacts cannot
be mitigated, as documented in its Section 7(a) Wild and Scenic
Rivers Act evaluation of October 15, 2010. We are very
concerned about the precedent that such legislation would
establish given that the Department found the bridge project
would have a direct and adverse effect on the designated river.
In its May 4, 2011 testimony NPS did not support a similar
bill--H.R. 850, which would facilitate a proposed project in
the Lower St. Croix National Scenic Riverway. S. 1134 differs
from H.R. 850 with the inclusion of mitigation measures for the
project.
This bill requires that the mitigation items described in
paragraph 9 of the 2006 St. Croix River Crossing Project
Memorandum of Understanding for Implementation of Riverway
Mitigation Items, signed by the Federal Highway Administration
on March 28, 2006, and by the National Park Service on March
27, 2006, are included as enforceable conditions.\1\ It also
states that any subsequent amendments to the Memorandum of
Understanding are included as enforceable conditions.
---------------------------------------------------------------------------
\ 1\A copy of the Memorandum of Understanding may be found at
http://www.dot.state.mn.us/metro/projects/stcroix/pdfs/Memounder/
Riverway%20MOU%204-11-06.pdf.
---------------------------------------------------------------------------
The Lower St. Croix National Scenic Riverway (Riverway)
received protection as a ``study river'' with passage of the
Act in 1968. Congress subsequently designated the upper 27-mile
segment of the Lower St. Croix River as a Wild and Scenic River
in 1972 and provided that if the Governors of the States of
Minnesota and Wisconsin submit an application for the lower 25-
mile segment, the Secretary of the Interior upon his approval
shall designate that segment. The Governors did submit an
application and the Secretary designated the lower segment in
1976. The Act established a method for providing Federal
protection for some of our country's remaining free-flowing
rivers, preserving them and their immediate environments for
the use and enjoyment of present and future generations.
In Section 7(a) of the Act, Congress expressed the clear
intent to protect river values. The Act prohibits Federal
agencies from assisting in the construction of any water
resources project that would have a direct and adverse effect
on the values of a designated river. Section 7(a) states:
. . . no department or agency of the United States
shall assist by loan, grant, license or otherwise in
the construction of any water resources project that
would have a direct and adverse effect on the values
for which such river was established, as determined by
the Secretary charged with its administration . . .
Pursuant to that statute, if the Department determines a
direct and adverse impact would occur, the project cannot
proceed absent congressional action.
The Riverway is administered by the states of Minnesota and
Wisconsin for 25 miles and the National Park Service (NPS) for
27 miles. However, the Department of the Interior, through the
NPS, has responsibility for evaluation of proposed Federal
projects for the entire 52 miles of the designated river. The
NPS is responsible for evaluating water resources projects
under Section 7(a) of the Act to determine whether those
Federal projects, including bridges, will have a direct and
adverse effect on the Riverway's free-flowing condition, water
quality, and outstandingly remarkable values. Each water
resources project is evaluated independently on its own merits.
The Riverway runs fast over sections of exposed bedrock,
slow and deep over great depositional sediments left by the
last glaciers, and throughout its course to the Mississippi
River, the river carves through steep forested bluffs and rich
valley bottomlands. Although solitude in natural settings is
increasingly rare so close to a major metropolitan area, the
Riverway offers natural solitude and abundant recreation.
In 1995, the Federal Highway Administration (FHWA) released
a Record of Decision to construct a new bridge over the Lower
St. Croix National Scenic Riverway and in June 1996, the Sierra
Club and Voyageurs Region National Park Association commenced a
lawsuit against the United States Department of Transportation,
the Federal Highway Administration, the Department and the NPS
to enjoin construction of the project. They alleged that the
Department had violated Section 7(a) of the Act by failing to
determine whether the new bridge would have a direct and
adverse effect upon the values for which the Riverway was
established. In September 1996, the FHWA and its lead partner--
the Minnesota Department of Transportation (MnDOT)--applied for
a Section 10/404 permit to place fill in the waters of the
United States for bridge construction. Subsequently, the NPS
prepared a Section 7(a) evaluation and determined that the
project would have a direct and adverse effect on the
Riverway's scenic and recreational values because of its visual
impacts and that no available mitigation measures could
significantly reduce the negative effects of the proposed
bridge. Therefore, permits could not be issued and the bridge
project could not go forward. MnDOT, the Wisconsin Department
of Transportation (WisDOT) and the City of Stillwater,
Minnesota, intervened in the lawsuit as defendants. They
alleged that the 1996 NPS Section 7(a) determination was
arbitrary, capricious, and in excess of statutory authority.
The court upheld the 1996 NPS Section 7(a) determination,
establishing case law that bridges are water resources projects
subject to Section 7(a) of the Wild and Scenic Rivers Act.
In 1998, after discussions with legislators and other
interested parties, the FHWA, MnDOT and WisDOT decided to
revisit the issue of a river crossing near Stillwater. MnDOT
facilitated a consensus-building process for a new bridge
crossing of the Riverway. This process resulted in a new bridge
alignment and design as well as a mitigation package.
In 2000, the NPS prepared a Draft Section 7(a) evaluation
for inclusion in FHWA's Environmental Impact Statement (EIS).
This evaluation determined that the proposed bridge would have
a direct and adverse effect on scenic and recreational values;
however, the adverse effects were adequately offset by the
mitigation package developed by the stakeholders.
In 2001, the FHWA suspended that EIS process short of a
final decision, citing insufficient funds for the
implementation of the mitigation measures.
In 2002, the FHWA and its two state partners again re-
initiated a St. Croix River Crossing EIS process. A
``Stakeholders Group,'' made up of 28 representatives of
diverse interests was formed to provide input to the
transportation agencies in their decision-making process. This
process resulted in a new proposed bridge alignment (similar to
the original 1996 alignment), a bridge design, and a mitigation
package.
In 2005, the NPS prepared an updated Section 7(a)
evaluation that determined that the proposed crossing, when
taken along with its mitigation package, would not have a
direct and adverse effect on the scenic and recreational
values, provided that the mitigation package remained intact.
In 2006, the FHWA issued a new record of decision to allow
the bridge to be built. The Sierra Club again sued the
Secretaries of Transportation and the Interior, alleging
violations of the National Environmental Policy Act, Section
4(f) of the Department of Transportation (DOT) Act of 1966 (40
U.S.C. 1653(f)), and the Wild and Scenic Rivers Act.
On March 11, 2010, the U.S. District Court of Minnesota
found the 2005 NPS Section 7(a) evaluation ``arbitrary and
capricious'' and vacated it.
On April 6, 2010, the FHWA requested that the NPS prepare a
new evaluation in response to the court's decision. The NPS
released its latest Section 7(a) evaluation on October 15,
2010. The evaluation determined that, due to visual impacts,
the St. Croix River Crossing Project would have a direct and
adverse impact to the river and that those impacts cannot be
mitigated.
The NPS transmitted the 2010 Section 7(a) evaluation to the
FHWA, stating that, ``While the NPS believes the mitigation
measures are not sufficient to eliminate the direct and adverse
effects of the Project on the Lower St. Croix National Scenic
Riverway's designated scenic and recreational values, the NPS
strongly supports their implementation if Congressional action
is taken to allow the Project to move forward. The mitigation
measures are essential to meet the requirements of Section 4(f)
of the DOT Act of 1966 and help the states of Minnesota and
Wisconsin protect and enhance river values under Section 10(a)
of the Act.''
Mr. Chairman, that concludes my testimony. I would be
pleased to answer any questions from members of the committee.
ADDITIONAL VIEWS OF SENATORS BINGAMAN, UDALL,
AND CANTWELL
If there had been a roll call vote to report S. 1134, we
would have voted against reporting the bill. S. 1134 waives the
Wild and Scenic Rivers Act to allow construction of large
bridge over the Lower St. Croix River, which has been
designated as a component of the National Wild and Scenic
Rivers System. If this bill is enacted, it will mark the first
time that Congress has chosen to waive the Wild and Scenic
Rivers Act to allow construction of a bridge which the National
Park Service has determined would have a direct and adverse
effect on the river.
We appreciate the frustration of the bill's sponsors that
the debate over a new bridge has dragged on for many years, and
understand their desire to bring this issue to a close. But
we're also mindful of former Vice President Mondale's statement
to this Committee that he and former Senator Gaylord Nelson
sponsored the legislation to protect the St. Croix River under
the Wild and Scenic Rivers Act precisely to guard against
future incompatible projects on the river.
One of the fundamental assumptions we make in protecting
important natural areas is that those areas will remain
protected forever. In our opinion, waiving the protections of
the Wild and Scenic Rivers Act for the Lower St. Croix River is
bad policy and sets a dangerous precedent.
Jeff Bingaman.
Mark Udall.
Maria Cantwell.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 1134, as
ordered reported.