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House Approves Water Resources Bill, Senate Action Imminent

In a major accomplishment, the House this week approved, on a voice vote, the 2018 Water Resources Development Act, referred to as America’s Water Infrastructure Act (S. 3021).  This means that the Senate is now poised to vote on final approval next week and then send it to the White House for enactment.  S. 3021 authorizes the U.S. Army Corps of Engineers (USACE) core activities, flood protection, navigation and ecosystem restoration projects.  Among the priorities identified is a directive for USACE to provide a report to Congress on the success of its Forecast Informed Reservoir Operations Program (FIRO) that allows for the enhance management of USACE facilities for water supply without jeopardizing flood protection needs.  As part of the study, recommendations for other project opportunities are to be made.

The bill also addresses water infrastructure needs at the U.S. Environmental Protection Agency (USEPA).  This includes creating a new program of WIFIA assistance to support State SRF programs by providing WIFIA assistance to the SRF programs to fund priority wastewater and drinking water infrastructure needs. Such funding could cover up to 100% of a project’s costs.  As part of the enhanced funding, the bill would waive all application fees and mandate expedited application approvals.  The bill also provides for a new authorization for the drinking water SRF, providing $4 billion over five years.  The funding level effectively mirrors the recent years’ funding levels.  In an effort to address unmet needs, the bill creates a new grants program to support municipal needs related to the treatment and management of stormwater, SSO’s and CSO’s to the tune of $225 per year for two years.  In response to voiced concerns about the impacts of climate challenges upon water utilities, the bill provides for the establishment of a grants program to support the use of resilient technologies, relocation of facilities, and development of strategies to address future climate resiliency impacts.  The success of WIFIA also led to the adoption of directives to the U.S. Bureau of Reclamation to enter into an agreement with USEPA to develop a WIFIA program of assistance for water storage facilities and others.  While funding would depend upon USBR budgets, the actual administration of any assistance program would reside with USEPA’s WIRIF.

The legislation also puts into place an expanded commitment to promote the use of water use and energy efficient technologies through a WaterSense program.  USEPA would be tasked to develop a voluntary program for technologies to be evaluated for the ability to conserve energy and water use.  If the technologies meet criteria of demonstrating benefits, then the technology could be labeled as a WaterSense compliant product similar to the Energy Star program.

Party Like It’s 1999, Congress Moves Energy and Water Development Appropriations to President

Not since 1999 has a final Energy and Water Development spending bill been sent to the President, which funds the U.S. Army Corps of Engineers (USACE) and the U.S. Bureau of Reclamation (USBR) water-related programs.  This year, Congress succeeded in completing action on a three-bill minibus package (H.R. 5895) that included the Energy and Water Development Appropriations Bill for FY 2019.  The President is expected to receive the compromise spending bill within days and is expected to sign it into law, before the new fiscal year begins on October 1.  The legislative accomplishment means that program managers that implement water recycling, desalination and general western water projects at USBR and managers who work on flood protection and navigation at USACE will be able to implement programs and fund projects on an orderly basis over twelve months instead of being required to accomplish a year’s worth of business in a handful of months.  Overall, the spending package represents a full-throated endorsement of federal water programs with spending levels maintained or slightly increased over current year spending.  In what can be only termed as an unvarnished rebuke of an Office of Management and Budget proposed reorganization of USACE, the spending bill emphatically rejects the proposed reorganization that would have moved all USACE civilian water programs into the Department of the Interior and all navigation programs into the Department of Transportation.   As agreed upon, the bill provides $7 billion in funding to USACE navigation and flood protection programs.

Notably, USBR’s budget is set at $1.57 billion representing more than a $85 million increase over current year spending levels.  The increased funding is dedicated to supporting improved water supply reliability and deliveries of water.  Within this priority, the funding measure identifies a number of programs for attention.  This includes $60 million for Title XVI Water Reclamation and Reuse Program and $12 million is directed to desalination research and development.  The ongoing effort to deliver new storage facilities in California is boosted with $134 million to maintain studies into proposed projects.  Tangentially related to the storage studies, at least $30 million is to be used to implement a series of projects to enhance environmental protection of the ecosystem of the federal water project known as the CVP that could result in improved water supply deliveries. This funding will support efforts to improve fisheries, demonstrate innovative operations of the project’s facilities and demonstrate the feasibility of real time monitoring of the waters impacted by the CVP and its fisheries and other natural resources.  In order to ensure timely use of the funding, the agency must report to Congress on the projects it intends to fund within 45 days of the spending bill’s enactment into law.  Drought needs are addressed with $15 million allocated to water conservation efforts in severely affected drought regions.

Lame Duck Session All But Formally Declared

While progress on federal agency spending bills continues apace as Congress and the White House stare down an October 1 deadline, the likelihood of an agreement to fund the always contentious Interior and Environment Appropriations bill that funds the U.S. Environmental Protection Agency (USEPA) and the Department of the Interior could be settled by the end of September is increasingly doubtful. The latest smoke signals suggest this includes a decision by the House and Senate Committee on Appropriations to develop a stop-gap funding bill that would expire on December 7.  In order to secure an orderly adoption of the measure, it would be attached to the second minibus funding important education, labor and health care programs.

The inability to secure a final USEPA spending agreement centers on more than a dozen policy riders that the House spending bill version contains.  The Senate has steadfastly refused to accept the riders, stating that any authorization initiatives must be addressed through the normal authorization process rather than trying to short circuit the policymaking process using a spending bill.  The House riders seek to impose prohibitions on the implementation of several rules and policies that impact the approval of water projects, regulate water quality and manage the uses of pesticides.  If the House and Senate are unable to find common ground on the agency budgets the minibus approach to funding legislation would mean that in addition to USEPA and Interior; the Departments of Transportation, Housing and Urban Development, Financial Services would be subject to the stopgap spending measure.  Separately, the third minibus package that would fund the Departments of Commerce, Justice, State, and Homeland Security may become a victim of the calendar and also be forced to run on current year spending levels until a final spending bill is developed in December.  Despite the delays in these agency budgets, the progress in moving spending bills to the President for enactment is in stark contrast to the past years’ contentious and drawn out debates that effectively limited timely funding of agency programs.

WOTUS Legal Battles Continue

This week, a federal judge put a hold on the Waters of the U.S. (WOTUS) Rule in three states: Texas, Mississippi, and Louisiana.  The judge’s decision counters a recent decision by a district court judge in South Carolina to implement the WOTUS rule in 26 states after finding that the Administration violated the Administrative Procedures Act when the U.S. Environmental Protection Agency failed to seek public comment on its rule to delay WOTUS’ implementation for two years.

The WOTUS rule defines and governs the nation’s waters and waterways under the Clean Water Act (CWA).  In 2015, USEPA and the Army Corps of Engineers issued a rule that changed the definition of “waters of the U.S.” under CWA and, as a result, changed the scope of the federal government’s authority over the nation’s waters and waterways.  The ongoing WOTUS legal battles center on disagreements about the 2015 rule change.

While the Texas judge’s decision is not a nationwide decision to hold WOTUS’ implementation, it does increase the likelihood that the WOTUS rule will ultimately end up in the U.S. Supreme Court to be resolved.

Update on USDOI’s ESA Efforts

In July, the U.S. Department of the Interior’s Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, published three proposed rules that would make regulatory changes to the Endangered Species Act (ESA).  The rules’ proposed changes include streamlining the consultation process with federal agencies for delisting species, editing the definition of “foreseeable future,” clarifying the standards that determine critical habitat designations, and removing a statute within the ESA that automatically gives threatened species the same protections as endangered species.

Public comment on the proposed rules ends on September 24.  However some environmental organizations have asked for an extension of the public comment period.  To date, the proposed rules have received over 46,000 public comments.

Legislative Activity This Week

H.R. 6040, Contra Costa Canal Transfer Act, as amended – Passed House by Voice Vote.

New Legislation

H.R. 6782, To determine the feasibility of additional agreements for long-term use of existing or expanded non-Federal storage and conveyance facilities to augment Federal water supply, ecosystem, and operational flexibility benefits in certain areas, and for other purposes. – Rep. Mark DeSaulnier (D-CA)