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Washington Policy and Regulatory Updates

Our ENS Federal Report provides a summary and the status on select legislative and regulatory actions.
We normally issue a Report when both Chambers are in session.


ENS Federal Report – March 15, 2019


Legislation to Modernize Antiquated Permit Term Limits Introduced

On Thursday, Representative John Garamendi (D-CA) introduced legislation to update the Clean Water Act (CWA) municipal permitting system to provide discretionary authority for permit terms.  In a display of bipartisanship, Garamendi was joined by cosponsors Representatives Ken Calvert (R-CA) and Robert Woodall (R-GA).  Under H.R. 1764, the CWA NPDES term would better reflect the realities of construction schedules and constrained resources, allowing a state permitting authority to grant a municipality a permit for a period not to exceed ten years.

Current law allows for a permit not to exceed five years.  The legislation addresses the fact permit terms have not been updated since the law’s implementation in 1972, while treatment requirements imposed by amendments to CWA have increased the complexity of compliance that results in construction projects that extend beyond the current five-year term and in some cases for more than a decade.  H.R. 1764 is notable for its preservation of all water quality standards and enforcement and compliance mandates.  This bill maintains the requirement that any a permit can be reopened during the permit term to address any need to impose new treatment conditions.  The legislation is endorsed by a broad group of public stakeholders. H.R. 1764 has been referred to the House Committee on Transportation & Infrastructure that is currently considering approaches to address water infrastructure funding needs.

White House Release FY 2020 Budget Request Outline

This week, the White House released a limited Fiscal Year 2020 Budget request and will send a detailed FY2020 Budget request to Congress on March 18.  The budget request is a month late in being released than what is typical.  The delay is because of the partial government shutdown, which delayed the Administration’s ability to develop a FY2020 budget request.  Upon its release, the democratically controlled House swiftly denounced the budget for proposed cuts to discretionary spending.  It is expected that, as is tradition, Congress will acknowledge the Administration’s budget request and then proceed to develop its own FY2020 budget.

The budget requests significant spending changes to the U.S. Environmental Protection Agency (USEPA), U.S. Army Corps of Engineers (USACE), and U.S. Department of the Interior (USDOI) budgets and programs that are crucial for supporting water resources activities.  The detailed March 18 budget request will outline specific programmatic details.  Below is a summary of key program spending requests for USEPA, USACE, and USDOI as is currently known.

U.S. Environmental Protection Agency
Budget request for USEPA is $6.1 billion, which is a 31% decrease from FY2019, and eliminates voluntary and low-priority activities, and prioritizes strategic and regulatory reforms.

  • Reduces funding for Clean Water State Revolving Funds (SRF) to $1.1 billion representing a 34% cut from current spending levels.
  • Reduces funding for WIFIA by 60%, providing $25 million from the current $65 million.
  • Reduces the Drinking Water SRF to $83 million, a 26% cut from current levels.
  • Provides resources to reviewing and revising regulations, improving the permitting process, and enhancing collaboration with State, tribal, and Federal partners.The Agency will promote joint governance to enhance shared accountability between USEPA, States and Tribes.
  • Outlines legislative proposals to authorize USEPA to administer handful of programs through the collection and expenditure of user fees, includes a proposal to fee-fund the ENERGY STAR program.
  • Provides $1 billion for Hazardous Substance Superfund Account.
  • Funds USEPA’s R+D activities that focus on air quality, water resources, sustainable communities, chemical safety, and human health risk assessments.
  • Eliminates funding of a number of programs that includes the beach protection, Leaking Underground Storage Tank, and the Mexico-California international sewage treatment project and National Estuary Program and the regional water quality rest programs.

U.S. Army Corps of Engineers
Budget requests $4.8 billion for USACE, which is a 31% decrease from FY2019 enacted level, and focuses on federal investment where it addresses the most significant risks to public safety or provides high economic or environmental returns.  Proposes reforms to how the nation invests in water resources projects, reduces the reliance on federal funding and control, and provides state and local governments, as well as private sector, more flexibility to make investments they deem priorities.

  • Proposes no new starts for construction projects, to enable USACE to focus on completing ongoing priority projects faster and reforms the ways in which future project investments are funded to allow for less reliance on federal appropriations.
  • Budget gives priority to operating and maintaining existing water resources infrastructure and improving its reliability.Maintenance of key infrastructure features include navigation channels of largest ports and busiest commercial inland waterways.
  • Expands USACE current use of section 1043 of WRDA 2014 by including $150 million for innovative program where USACE transfers appropriated funds to non-federal sponsors that decide to construct their own projects.USACE would issue solicitation for proposals from these non-federal sponsors.Budget proposes extending section 1043 that expires in 2019.
  • Establishes clear priorities based on objective criteria for investment decisions.Ensures best use of funds and allows taxpayer to understand how federal resources allocated.

U.S. Department of the Interior
Budget requests $12.5 billion, which is a 14% decrease from FY2019 estimate.  It prioritizes wildland fire risk mitigation, energy development programs, infrastructure improvements on public lands, and USDOI-wide reorganization efforts, eliminates funding for unnecessary or duplicative programs and reduces funds for lower priority activities.  This includes land acquisition and various grant programs.

  • Increases funding for wildland fire management programs to reduce hazardous fuel loads and supports wildfire preparedness efforts.Pursuant to the Consolidated Appropriations Act 2018, bolsters base suppression costs by $300 million in additional suppression resources under recently enacted wildfire cap adjustment.Requests $194 million for USDOI hazardous fuel mitigation work and $172 million for USDOI timber programs.
  • Invests in U.S. Geological Survey (USGS) science related to natural hazards, water, energy, minerals and other natural resources.Supports development of Landsat 9 ground system.
  • Maintains core funding for U.S. Fish and Wildlife Service to conduct Endangered Species Act consultations.
  • Requests $1.1 billion for U.S. Bureau of Reclamation with an emphasis on operating, maintaining, and rehabilitating existing water resources infrastructure.Requests $179 million for the implementation of enacted Indian water rights settlements in support of Federal trust responsibilities to Tribes.Requests $194 million USGS and USBR water-related science to sustain and enhance ground and surface water quality and quantity resource and monitoring, as well as, develop new technologies to respond to water resource challenges facing the U.S.

White House Sends USDOI Nomination of Interior Secretary to Senate

The President officially nominated David Bernhardt to be the next Secretary of the U.S. Department of the Interior (USDOI).  Bernhardt is currently USDOI Acting Secretary after former Secretary Ryan Zinke resigned.  Bernhardt’s nomination will be considered by the Senate Committee on Energy and Natural Resources in the coming weeks.

White House Drops WOTUS Delay Case

The Administration dropped its legal appeal to delay to the implementation of the 2015 Waters of the U.S. (WOTUS) rule in the twenty-six states covered by 2018 court cases that invalidated the Administration’s WOTUS implementation delay.  The filings by the U.S. Department of Justice (USDOJ) dismissed its litigation in the fourth and ninth U.S. Circuit Courts of Appeals to allow U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE) to focus on completing the rulemaking process.  USDOJ’s litigation was attempting overturn the 2018 lower court rulings and delay the implementation of WOTUS until the rule rewrite process is complete.

For the last two years, the USEPA and USACE have been working through a two-step process to repeal and rewrite the 2015 WOTUS rule.  Last month, the agencies released its proposed rule  and is seeking public comment on it until April 15.  USEPA has stated that it plans to finish its final rule by the end of this month.

Legislative Activity This Week

S. 47, John D. Dingell, Jr. Conservation, Management, and Recreation Act. – Signed by President.

New Legislation

H.R. 1764, To amend the Federal Water Pollution Control Act with respect to permitting terms, and for other purposes. – Rep. John Garamendi (D-CA)

S. 774, A bill to adjust the boundary of the Santa Monica Mountains National Recreation Area to include the Rim of the Valley Corridor, and for other purposes. – Sen. Dianne Feinstein (D-CA)

S. 810, A bill to clarify the authority of the Administrator of the National Oceanic and Atmospheric Administration with respect to post-storm assessments, and for other purposes. – Sen. Roger Wicker (R-MS)

S. 778 – Senator Murkowski (R-AK) and H.R. 1716 – Representative Pingree (D-ME) – Coastal Communities Ocean Acidification Act

Reports and Regulation

Public Comment on USDA Conservation Practices – U.S. Department of Agriculture’s Natural Resources Conservation Service is seeking public comment on its conservation practice standards through April 25.

Letter to DoD Concerning PFAS – Letter sent to Department of Defense (DoD) by Sen. Tom Carper (D-DE) concerning DoD’s cleanup standards for PFAS.

The Need to Address U.S. Treatment Systems – Article on the growing need to address faulty treatment systems across the U.S.

Congress is on recess next week.