[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Act, there is rescinded from the Department of the Interior franchise 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.

                                  
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