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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 – January 18, 2019


Shutdown Continues with Far-Reaching Implications

The almost month-long shutdown of twenty-five percent of the federal bureaucracy has reached the point that collateral damage is growing.  The direct consequence of the shutdown, federal employees and contractors not being paid and agencies’ activities like permitting and processing applications halted in mid-stream, is now creating significant ripple effects.  The House leadership and Senate Democrats has focused legislative action to reopening the federal government.  This past week, the House approved legislation that would fund disaster assistance needs along with reopening the federal government.  However, tying together the two funding needs failed to garner Senate Majority Leader McConnell’s support.  As a result, this week’s efforts, along with previous similar efforts to end the partial government shutdown, sit on the legislative shelf collecting dust.  According to congressional staff, the path to a resolution remains unclear. The prospect of the president’s comments that the shutdown could extend months looks increasingly likely this week.

The possibility of an extended shutdown carries a variety of serious impacts for fiscal year 2020.  Under the Budget Control and Impoundment Act, the Administration must transmit its budget request to Congress on the first Monday in February.  Given that a quarter of the federal agencies are unable to work on fiscal year 2020 budget recommendations, it is unclear how such a deadline can be complied with by this date.  Consequently, what has been a limited shutdown could morph into a more serious challenge, as Congress will not have the benefit of Administration program priorities.  This could create a circumstance where the House and Senate would have to develop spending priorities absent formal Administration positions, carrying with it a possibility of Administration opposition to any number of budget decisions.  The dislocation of the budget making process and uncertainty on how a polarized political environment can be remedied, remains a work in progress that will likely require a nationally significant event to focus policymakers’ attention.

Wheeler Defends Administration Priorities at Nomination Hearing

On January 15, the Senate Committee on Environment and Public Works held a hearing on the nomination of Andrew Wheeler to be Administrator of the U.S. Environmental Protection Agency (USEPA).  The Senate confirmed Wheeler in July 2018 to be USEPA’s Deputy Administrator in July 2018.  He has served as the Acting Administrator since the resignation of former Administrator Scott Pruitt that same month.

During the hearing, committee Democrats voiced concern over Wheeler’s ability to carry out USEPA’s core mission of protecting human health and the environment due to the partial government shutdown that includes USEPA operations.  In a heated exchange, Senator Bernie Sanders (I-VT) asked Wheeler if he thought climate change is a global crisis, Wheeler responded that he does not see it as “the greatest crisis”, instead calling it “a huge issue that has to be addressed globally.”  Wheeler added that he takes the issue very seriously and noted that the USEPA is moving forward with plans to reduce carbon dioxide and address greenhouse gases.

Citing specific actions of the agency, Chairman John Barrasso (R-WY) praised Wheeler for proposing a new rule limiting the scope and application of the “Waters of the United States” (WOTUS) rule.

Wheeler testified to the benefits of USEPA’s Water Infrastructure Finance and Innovation Act (WIFIA) program.  He highlighted the Agency’s issuance of seven loans under the program and noted that USEPAS’s Office of Water invited an additional 39 projects across the nation to apply for WIFIA assistance.  Wheeler notified the committee that the partial government shutdown is delaying the planned release of a per- and polyfluoroalkyl substances (PFAS) management plan.  In response to a question from Senator Ben Cardin (D-MD) about stormwater infrastructure, Wheeler renewed his commitment to facilitate the creation of a new stormwater financing federal task force, as created by the America’s Water Infrastructure Act of 2018.

Barrasso indicated that the committee might vote on Wheeler’s nomination on February 5.

New Committee Rosters Released

This week, a number of committees released new committee assignments for the 116th Congress.  Committee rosters for the House and Senate committees that are of importance to water resources policy can be accessed here.  Below are specific committee assignment updates from this week.

  • House Republican Leadership announced this week that Representative Bruce Westerman (R-AR) will be Ranking Member of the House Subcommittee on Water Resources and Environment.
  • The House Committee on Energy and Commerce Chairman Frank Pallone (D-NJ) and Ranking Member Greg Walden (R-OR) released subcommittee assignments: Democrat Subcommittee Members   Republican Subcommittee Members

U.S. Solicitor General Calls for Supreme Court to Grant Review of Groundwater Case

In December 2018, the U.S. Supreme Court (SCOTUS) invited the U.S. Solicitor General to file a brief in the case of County of Maui v. Hawaii Wildlife Fund.  In this case, the Ninth Circuit held that the county violated the Clean Water Act by allowing pollutants from four wastewater injection wells to seep into the Pacific Ocean.  SCOTUS requested the Solicitor General to provide a response to the question of “whether the Clean Water Act imposes liability for pollutants which travel through groundwater to ultimately reach jurisdictional navigable waters.”

On January 3, the Solicitor General responded that the Court should grant review and hear oral arguments to resolve this question, especially in light of split decisions issued by the Fourth, Sixth, and Ninth Circuit courts on similar cases involving the Clean Water Act’s application to pollution that migrates into surface waters through groundwater sources.  The U.S. Supreme Court will decide whether to consider the case.

Legislative Activity This Week

H.R. 7279, Water Infrastructure Improvement Act. – Rep. Bob Gibbs (R-OH) – Signed into law this week, became Public Law No: 115-436.

New Legislation

S. 93, A bill to authorize the Secretary of the Interior to convey certain land and facilities of the Central Valley Project. – Sen. Dianne Feinstein (D-CA)

H.R. 432, To authorize the Secretary of the Interior to convey certain land and facilities of the Central Valley Project. – Sen. Mark DeSaulnier (D-CA)

H.R. 535, To require the Administrator of the Environmental Protection Agency to shall designate per- and polyfluoroalkyl substances as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. – Rep. Debbie Dingell (D-MI)

H.R. 667, To repeal the Waters of the United States rule and amend the Federal Water Pollution Control Act definition of navigable waters, and for other purposes. – Rep. Jaime Herrera Beutler (R-WA)

Reports and Regulation

USBR Names New Mid-Pacific Regional Director – U.S. Bureau of Reclamation named Ernest A. Conant as the new Mid-Pacific Regional Director.

Report on Water Reuse Grant Program – Government Accountability Office’s report on the U.S. Bureau of Reclamation Water Reuse Grant Program and finds that it supports diverse projects and is managed consistently with federal regulations.

Promoting Active Management of America’s Forests, Rangelands, and Other Federal Lands To Improve Conditions and Reduce Wildfire Risk – Published in the Federal Register (E.O. 13855 of Dec 21, 2018).

Democratic Senators Warn Trump: Shutdown Threatens Wildfire (Firefighter Training) Preparedness – Press release from Senator Dianne Feinstein (D-CA) about a letter Sen. Feinstein, along with other Senators, sent to the President concerning how the partial government shutdown threatens wildfire.

Nasdaq launches California water pricing index (Water and Finance Management) – News release about the new Nasdaq Veles California Water Index (NQH2).