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The Third Time’s the Charm or an Emergency

The House and Senate achieved what proved elusive over the past several months and reached a compromise spending bill to enable the six federal agencies without year-long spending authority to remain in business through September 30, 2019 when Fiscal Year 2020 officially begins.  The President signed the bill into law earlier today.

After a thirty-five day shutdown, congressional leaders vowed not to allow another shutdown that would, again, grind to a halt critical federal programs ranging from water infrastructure to domestic security programs.  The spending agreement essentially adopts the domestic spending levels generally agreed-upon last December, when efforts to pass a final spending bill failed.   After three weeks of intense negotiations, the outcome provides funding certainty for core federal water infrastructure assistance programs and allocates $1.3 billion to address border wall security needs.  The final agreement also dropped a number of contentious policy rider provisions that would have bypassed federal and state environmental reviews related to water supply project approvals and construction.  Under the agreement, the U.S. Environmental Protection Agency will receive $1.6 billion to support clean water infrastructure projects and $1.2 billion for drinking water needs.  Support for green infrastructure and removal of lead contamination in drinking water systems is provided dedicated assistance.  The continued congressional concern for disadvantaged communities’ financial capability to improve water quality and provide safe drinking water supplies is addressed with a mandate that at least 10% of a state’s clean water SRF grants assistance (20% of drinking water SRF) be reserved to provide enhanced project assistance subsidies to support project construction.  Last, the innovative financing program, WIFIA, continues to enjoy congressional support, receiving a watershed high level of funding of $58 million.

The enactment of the spending agreement, however, does not herald the conclusion of one of the most divisive spending debates in recent congressional memory.  At the spending bill signing ceremony, the President declared a national emergency to secure additional funds to build the border wall.  The action will trigger the reprogramming of federal resources to secure the president’s desired $8 billion in wall funding.  The Administration stated that it will redirect $3.6 billion from the Department of Defense military construction projects, $600 million from a Treasury Department drug forfeiture fund, and $2.5 million from a Pentagon drug prevention program.  The prospects of success for the proposed shifting of funds is uncertain.

In the spending bills, congressional appropriators include language requiring most reprogramings or transfers to secure congressional approvals.  Second, the declaration of an emergency, in the case of a border security matter, has never been legally tested and the fact that a declaration would follow on the heels of a congressional decision on funding levels might hamper any transfers being approved if contested through the courts, which appears highly likely.  All of this will unfold in the coming weeks as Congress and the White House prepare to square off on writing the Fiscal Year 2020 budget, increasing the debt ceiling limit and defining overall spending limits for the coming fiscal year to avoid triggering as much as $126 billion in automatic, across-the-board spending cuts on October 1, 2019.  As the saying goes: ‘what’s old is new again’.

New Water Recycling Bill Introduced In The House

On Wednesday, Representative Grace Napolitano (D-CA) introduced legislation, H.R. 1162, to establish a new grant program for funding water recycling and reuse projects.  The legislation, entitled the Water Recycling Investment and improvement Act, assists water agencies in the expanding, planning, designing and building of water recycling plants.  The legislation would also help modernize existing water infrastructure in California and other western states.

Specifically, the legislation increases funding authorization or the U.S. Bureau of Reclamation’s Title XVI water recycling grant program to $500 million from the current $50 million, makes Title XVI a permanent program (the program currently expires in 2021), and funds water recycling and reuse projects for 17 western states.

H.R. 1162 was referred to the House Committee on Natural Resources.

USEPA Issues Management Plan to Address PFAS Contamination

The U.S. Environmental Protection Agency (USEPA) issued its per- and polyfluoroalkyl substances (PFAS) management plan.  Entitled EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan, the plan’s release comes after unofficial reports from USEPA surfaced earlier this month that the agency would not regulate the toxic chemicals through the Safe Drinking Water Act.

Acting Administrator Andrew Wheeler stated that the plan does not include drinking water limits for PFAS substances.  Instead, the plan commits to making a formal decision on whether to set a Maximum Contaminant Level by the end of 2019 and begins the listing process to elevate PFOA and PFOS as hazardous under USEPA’s Superfund program.

Revised Definition of Waters of the United States

On Thursday, the U.S. Department of the Army, U.S. Corps of Engineers, U.S. Department of Defense, and the U.S. Environmental Protection Agency (USEPA) published a revised definition of Waters of the United States. The proposal is the second step in a two-step process to review and revise the definition consistent with the Executive Order signed on February 28, 2017.

The proposed rule defines six categories of waters that are federally regulated as waters of the U.S. and eight categories of exclusions.

  • The six categories that would be considered “waters of the U.S”: traditional navigable waters, tributaries, certain ditches, certain lakes and ponds, impoundments, and adjacent wetlands.
  • Categories that would not be considered “waters of the U.S.”: waters that are not included in the categories above, as well as features that are only wet during rainfall events, groundwater, certain ditches, prior converted cropland, stormwater control features, wastewater recycling structures, and waste treatment systems.

In regard to the exemption for wastewater recycling structures, the rule specifically excludes wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins. (p.4808)

USEPA will be taking public comments on the proposed rule through April 15, 2019.  Public hearings on the proposed rule will be held in Kansas City on February 27 and 28, 2019.

Legislative Activity This Week

S. 47, Natural Resources Management Act. – Sen. Lisa Murkowski (R-AK). Passed Senate 92-8 and sent to House.

New Legislation

H.R. 1137, To amend the Water Resources Development Act of 1986 to repeal the authority relating to reprogramming during national emergencies. – Rep. John Garamendi (D-CA)

S. 437, A bill to amend the Internal Revenue Code of 1986 to repeal the dollar limitation on the deduction for State and local taxes and restore the 39.6 percent individual income tax rate bracket. – Sen. Bob Menendez (D-NJ)

H.R. 1132, To amend the Federal Water Pollution Control Act to establish a grant program to support the restoration of San Francisco Bay. – Rep. Jackie Speier (D-CA)

S. 520, A bill to require the Secretary of Energy to establish an energy efficiency materials pilot program. – Sen. Amy Klobuchar (D-MN)

H.R. 680, Securing Energy Infrastructure Act. – Rep. Ruppersberger (D-MD)

Reports and Regulation

USBR Delta Plan Water DeliveriesU.S. Bureau of Reclamation’s Final Biological Assessment on the Reinitiation of Consultation on the Coordinated Long-Term Operation of the Central Valley Project and State Water Project.   

CA Gov. Newsom Announces New Appointments Press release on key water, economic development and education appointments.

Congress Next Week

Both Chambers are on recess next week.