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Budget Rescission In the Works Despite Lawmakers’ Misgivings

The White House Office of Management and Budget continues to finalize a package of spending cuts that, in a worst-case scenario, would effectively eliminate the increased spending ($63 billion) for domestic programs that Congress and the White House agreed upon in March to seal a deal on fiscal year 2018 program spending.  Under the Budget Control and Impoundment Act, in order to cut spending levels, specific program reductions (rescissions) must be transmitted to Congress.  Congress must then approve or modify the rescissions within 45 days or the cuts cannot be implemented.

Congressional leaders, including Senate Majority Leader Mitch McConnell (R-KY), went on the record recently casting doubt on the ability to secure congressional approval.  McConnell noted that the White House had been a party to the spending agreement and it is not a sound move to try and rewrite the agreement within weeks of its enactment.  In another budget twist, while the rescission request is pending, it appears that the Office of Management and Budget may hold back funding of programs until the forty-five days elapses.  The rescission process is notable not so much for the fact that the White House would seek to unravel spending increases.  Rather, it sets in motion a process with twists and turns that could wreak havoc on spending priorities as competing budget factions seek to impose their priorities within any final package.

WRDA Rewrite Continues in House and Senate

The priority to renew the Water Resources Development Act (WRDA) this year remains on course, with both the House and Senate committees with WRDA jurisdiction considering draft bills.  Formal consideration by the Senate Committee on Environment and Public Works and the House Committee on Transportation & Infrastructure could begin later this spring.  According to House and Senate committee staff, two separate tracks are being pursued.  In the House, it appears that the priority is to approve a bill that focuses on the narrow issues of U.S. Corps of Engineers’ project authorizations, regulatory reforms, and flood protection needs.  Meanwhile, the Senate Committee on Environment and Public Works’ effort to complete a draft WRDA rewrite that enjoys support across-the-aisle continues.  The hope, according to staff, is that a final draft could be presented to committee leadership within the next few weeks.  Unlike the House strategy, the Senate bill may become a vehicle to address water infrastructure needs, including making WIFIA a permanently authorized program and increasing its funding levels, authorizing development of projects to address resiliency needs, and providing direct assistance to disadvantaged communities faced with combined or separate sewer overflows.  According to congressional staff, legislation should be introduced in both chambers not later than the end of May with the potential for Senate committee consideration before June.  House committee consideration of legislation is unclear at this writing.

Buy America Mandate Expansion Adopted as Part of Maritime Administration Authorization

The Senate Committee on Commerce, Science, and Transportation moved to reauthorize the Maritime Administration providing new authorities to support the maritime industry.  As part of the Maritime Authorization and Enhancement Act of Fiscal Year 2019 (S. 2717) that was approved on a voice vote, the committee adopted Senator Tammy Baldwin’s (D-WI) amendment to require the use of American iron, steel and manufactured products in small shipyards unless such compliance would create procurement challenges and costly increases consistent with Buy America mandates that govern other federal programs.  The bill must now be considered by the full Senate and then receive House consideration.

House Committee Moves Controversial Farm Bill

On April 18, the House Committee on Agriculture approved the Agriculture and Nutrition Act of 2018 (H.R. 2).  After a lengthy debate over the nutrition title of the bill, the Committee approved the bill on a straight 26-20 party line vote.

H.R. 2 eliminates the Conservation Stewardship Program (CSP), merging it with the Environmental Quality Incentives Program (EQIP).  The CSP program provides financial and technical assistance to promote conservation on agricultural lands. The bill would maintain existing CSP contracts with new contracts to be managed under EQIP.  Agriculture stakeholders have expressed concern that CSP program funding will be greatly reduced because of this consolidation.

The Senate Committee on Agriculture has not released a draft of its own farm bill and a specific timeline for this to occur has not been announced.  H.R. 2 is tentatively scheduled for debate and a vote on the House floor in early May.

Forestry Title

Within the forestry title, the bill increases the number of acres eligible for categorical exclusions from the National Environmental Policy Act regulations for collaborative forest restoration projects to 6,000 acres from the current 3,000 acres.  It also removes the requirement for consultation under Section 7 of the Endangered Species Act for a project carried out by the Forest Service, if the project is found not likely to adversely affect a listed species. H.R. 2 would codify the Landscape Scale Restoration Program.  This would allow cross-state forest restoration projects to move forward under state level Forest Action Plans. 

House Approves Bill on Federal Dam Operations

On April 25, the U.S. House of Representatives approved H.R. 3144 on a recorded vote of 225-189.  The legislation relates to the operations of any Federal Columbia Power System hydroelectric dam along the Snake River (WA/OR/ID).  H.R. 3144 would overturn a decision by U.S. District Court Judge Michael Simon that order federal agencies to increase water releases over Columbia and Snake River dams beginning in spring of 2018 to benefit juvenile salmon and steelhead. Federal agencies have estimated that the order will result in an increase of $40 million in costs for ratepayers in 2018. The judge’s order to increase spill went into effect on April 3, 2018. There is no companion legislation to H.R. 3144 in the U.S. Senate and opposition to the House legislation has been expressed by Democrat Senators from the region.

Forest Service Priorities Examined by Senate Committee

On April 24, the Senate Committee on Energy and Natural Resources held a hearing to review the FY 2019 budget request for the U.S. Forest Service (Forest Service).  The hearing focused on how the Forest Service plans to respond to a fire season that is predicted to be severe in the western states.  The committee will likely use the hearing’s findings to support its FY2019 budget recommendations to the Senate Committee on Budget.

Senate Democrats and Republicans expressed support of the fire suppression budget fix included in the FY 2018 omnibus appropriations agreement.  Chairman Lisa Murkowski (R-AK) noted her disappointment that management reforms to support active forest management to reduce the threat of wildfires were not approved as part of the omnibus.  Murkowski urged the Forest Service to expedite the pace and scale of management activities to reduce the threats from wildfire.

Vicki Christiansen, Interim Chief, U.S. Forest Service testified that the Forest Service no longer has any off-season, instead they now have a year-long fire season. Christiansen stated that the Forest Service plans to treat (by thinning, prescribed burning and other methods) over 3.4 million acres in 2018 to reduce the accumulation of hazardous fuels and improve forest health.

Ranking Member Maria Cantwell (D-WA) called upon the Forest Service to support increased funding for research programs to enhance the Forest Service’s ability to predict communities at risk from wildfire. Murkowski and Cantwell requested that the Forest Service provide the committee with a report on Forest Service plans to reduce the hazardous fuels on federal lands and other options to mitigate the approaching fire season.  Christiansen agreed to work with committee to provide the information requested.

Senator Martin Heinrich (D-NM) asked Christiansen if the $1.9 billion appropriated for fire suppression in FY 2018 will meet anticipated costs. Christiansen responded that the Forest Service is predicting that fire suppression costs may exceed the $1.9 billion appropriated by Congress and could trigger fire borrowing.

USEPA Administrator Faces Tough Questions in House Committee

On April 26, U.S. Environmental Protection Agency (USEPA) Administrator Scott Pruitt testified before the House Committee on Energy and Commerce, Subcommittee on Environment.  The hearing was intended to review the Agency’s Fiscal Year 2019 (FY19) budget request.  However, the hearing’s discussion quickly shifted to the recent negative news headlines involving USEPA under Administrator Pruitt’s leadership.

During his testimony, Pruitt reiterated that one of his top priorities at USEPA is to improve the nation’s drinking water and wastewater systems in order to provide clean and safe water.  He stated that USEPA “will continue to make investments in drinking water and wastewater infrastructure, provide clear and actionable permitting decisions to the regulated community, and leverage federal investment with non-federal sources.”  In one of the hearing’s few moments that focused on the agency’s requested FY19 budget, Pruitt testified that the FY19 budget includes $20 million for the Water Infrastructure Finance and Innovation Act (WIFIA) program, which could provide up to $2 billion in credit assistance.

As the hearing ended, Representative Gus Bilirakis (R-FL) asked Pruitt about what USEPA has done to streamline project permitting reviews and improve the permitting process.  Pruitt responded saying that streamlining permit reviews is a priority for the agency.  He said the agency has been working on this issue.  By the end of 2018, the agency will be making internal changes to how it reviews permits, including a requirement that agency permit reviews are to be completed within six months.  Pruitt said these internal changes will be put in place in 2019.

Hearing into National Environmental Policy Act Non-Explosive

A House Committee on Natural Resources hearing entitled The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare served to replay familiar themes on the challenges and benefits of the National Environmental Policy Act (NEPA) to public health and the environment, but it failed to live up to its title as committee members questioned witnesses on the evolution of the law’s implementation and whether it had become a way to derail project approvals.

Chairman Rob Bishop (R-UT) opened the hearing stating that the NEPA process today is interpreted and administered far differently from what Congress originally intended when it enacted NEPA in the 1970s.  As a result, Bishop said, the NEPA process has become increasingly complex, expensive, and time consuming.  Ranking Member Raúl Grijalva (D-AZ) disagreed with Bishop, stating that NEPA “is not a weapon, it’s a shield” that requires that the government to assess threats to the environment and public health, consider alternatives, and allow for public input.  Grijalva explained that every year about 95% of projects reviewed under NEPA are reviewed with a matter of days under the categorical exclusion process and less than 1% of these projects undergo a full Environmental Impact Statements (EIS).  In regard to critiques of the length of time it takes to complete an EIS, he noted that EIS’s should take time because projects that require an EIS are complex and have the most potential to affect the quality of the nation’s air and water supplies.

Witnesses agreed that the NEPA process is crucial to ensure that the nation’s environment and public health remain protected, but witnesses also acknowledged the problems described by critics’ of today’s application of NEPA.  However, Horst Greczmiel, former Council on Environmental Quality (CEQ) Associate Director of NEPA Oversight, disagreed that NEPA is the main culprit for project delays.  Instead, Greczmiel testified that project delivery timeliness can be impacted by a number of factors, including lack of funding, changes in project design or planning, inadequate staffing capacity to implement and oversee NEPA, or local opposition to the project.  Greczmiel agreed with Grijalva’s opening remarks that NEPA review should take time for complex projects because of the environmental impacts that might be caused by the proposed projects.

The witness who testified at the hearing were James Coleman, Professor of Law at the Southern Methodist University Dedman School of Law, Melissa Hamsher, Vice President of the Environmental Health, Safety, and Regulatory at the Eclipse Energy Resource Corporation, Laura Alice Watt, Professor at Sonoma State University, Department of Geography, Environment, and Planning, and Horst Greczmiel, Former CEQ Associate Director of NEPA Oversight.

New Legislation

S. 2727, A bill to require the Administrator of the Environmental Protection Agency to establish a discretionary grant program for drinking water and wastewater infrastructure projects, and for other purposes. – Sen. Kirsten Gillibrand (D-NY)

S. 2740, A bill to authorize the National Oceanic and Atmospheric Administration to establish a Climate Change Education Program, and for other purposes. – Sen. Edward Markey (D-MA)

H.R. 5604, To prohibit any reduction, consolidation, or termination of offices and activities related to science research within the Environmental Protection Agency. – Rep. Donald McEachin (D-VA)

H.R 5596, To authorize the Administrator of the Environmental Protection Agency to establish a program of awarding grants to owners or operators of water systems to increase resiliency or adaptability of the systems to any ongoing or forecasted changes to the hydrologic conditions of a region of the United States. – Rep. Salud Carbajal (D-CA)

H.R. 5609, To establish a trust fund to provide for adequate funding for water and sewer infrastructure, and for other purposes. – Rep. Keith Ellison (D-MN)

H.R. 5611, To prohibit the importation into the United States of paper products that are not manufactured in accordance with requirements that are at least as stringent as the requirements under the Clean Air Act and the Federal Water Pollution Control Act. – Rep. Peter DeFazio (D-OR)

S. 2783, A bill to improve the resilience of the built and natural environment to natural disasters and climate change using, among other measures, natural and nature-based features, and for other purposes. – Sen. Bill Nelson (D-FL)

S. 2778, A bill to amend the Endangered Species Act of 1973 to include a prohibition on the listing of a living nonnative species as a threatened species or an endangered species, and for other purposes. – Sen. Ted Cruz (R-TX)

H.R. 5619, To provide emergency funding for port of entry personnel and infrastructure, and for other purposes. – Rep. Beto O’Rourke (D-TX)

Agency Grant Public Announcements

U.S. Environmental Protection Agency – (belated)

On April 12, the U.S. Environmental Protection Agency (USEPA) published a Notice of Funding Availability (NOFA) for the Water Infrastructure and Innovative Financing Act (WIFIA) Program.  Below is a brief summary of for the notice of the WIFIA NOFA from the WIFIA website:

“This Notice of Funding Availability (NOFA) is to solicit letters of interest from prospective borrowers seeking credit assistance from EPA. Prospective borrowers may submit letters of interest until July 6, 2018 at 12:00 p.m. (noon) EDT. It also announces two priorities for this selection round:

  • Provide for clean and safe drinking water, including reducing exposure to lead in the nation’s drinking water systems; and
  • Repair, rehabilitate, and replace aging infrastructure and conveyance systems.

In the Consolidated Appropriations Act, 2018, signed by the President on March 23, 2018, Congress provided $55 million in budget authority for the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) program to cover the subsidy required to provide a much larger amount of credit assistance. EPA estimates that this budget authority may provide approximately $5.5 billion in credit assistance and may finance approximately $11 billion in water infrastructure investment.”

Official WIFIA NOFA Statement

U.S. Department of Transportation

Announced the availability of $1.5 billion in discretionary grant funding through the Better Utilizing Investments to Leverage Development (BUILD) program, which replaces the TIGER grants. BUILD funding can support roads, bridges, transit, rail, ports, or intermodal transportation.  Applications must be submitted by 19 July. (NOFA)

Webinar: (Register)

Thursday, May 24 from 2:00-4:00 PM EDT

Reports and Regulation

USEPA Forest Biomass for Energy Production – U.S. Environmental Protection Agency report on the beneficial uses of the biomass of managed forests in energy production.

House Committee on Appropriations Subcommittee on Energy and Water Development, and Related Agencies Paper – Explanation for appropriations for energy and water development contained within the omnibus bill.

USEPA Press Release on First WIFIA Loan Closing – U.S. Environmental Protection Agency (USEPA) Press Release about the Agency closing the first WIFIA Program loan to King County, WA.

Stengthening Transparency in Regulatory Science USEPA Proposed Rule – Proposed rule the U.S. Environmental Protection Agency (USEPA) released this week detailing proposed regulation changes in the transparency of USEPA regulatory science.

Congress Next Week

Both Chambers are in recess next week.