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Congress Returns to Work in a Sprint to December

After a six-week hiatus from legislating, the House and Senate returned this week to pick-up the legislative pieces left unfinished from earlier this summer.  Top among priorities is final passage of fiscal year 2020 spending bills.  The House approved all twelve of its agency spending measures in July.  Now the Senate is in the midst of approving its versions of the spending bills. Just over fourteen days remain to finalize the appropriations measures before the start of fiscal year 2020.  Therefore, approving a stopgap spending bill to avoid a shutdown on October 1 is the focus in the House.  Budget leaders in the House are expected to seek passage of a bill extending current spending levels until late November.  Passage is  expected next week, paving the way for Senate approval before October 1.  While agreements exist on overall spending limits, individual debates over border wall funding, immigration, and abortion policies are expected to create bumps along the way to finalizing agency budgets.  One area that appears to enjoy broad support is the funding of water infrastructure, with the Senate appearing to support maintaining current spending for programs, including WaterSmart, Title XVI, SRF and WIFIA.

Meanwhile, the ongoing debate over the regulation of the chemicals PFAS/PFOA continues.  As Congress considers finalizing the annual National Defense Authorization Act (NDAA), intense negotiations over amendments to require the designation of these chemicals as hazardous waste under Superfund and to mandate the monitoring and treatment of drinking water supplies contaminated by the chemicals continue.  The White House has issued a veto threat on the provisions and recently restated in its policy concerns that include concerns over the PFAS/PFOA provisions. In a letter to the Senate Committee on Armed Services Chairman James Inhofe (R-OK) was advised of the strong opposition.  Passage and enactment of the NDAA is considered a must do item by the end of September.  This suggests that a compromise on PFAS/PFOA could be agreed upon in the next several weeks, but failing to meet this deadline would lead to negotiations into November.

Water infrastructure is also commanding attention.  The Senate Committee on Environment and Public Works is working on a draft Water Resources Development Act (WRDA) that would authorize flood protection and navigation projects.  The committee has made incorporating general water infrastructure policies into WRDA a priority.  In the House a different tact is underway.  The House approach is not expected to address general water infrastructure policies within WRDA.  Instead, the House Committee on Transportation & Infrastructure is working on a separate track, seeking to approve a reauthorization of the Clean Water Act’s SRF program as well as a handful of other water infrastructure issues related permitting, workforce development and disadvantaged community assistance.  On the matter of drought and resiliency policies, both the House and Senate have pending legislation that could be addressed by the respective House and Senate committees that would bolster federal assistance of water recycling, desalination, and groundwater storage projects among other western water needs.

Final action on any of these issues, aside from spending bills, is highly unlikely this year as limited time exists before the anticipated adjournment in December.  Consequently, it is highly likely that the final session of this Congress in 2020 will be one punctuated by a broad swath of water policies not witnessed in decades.

Senate Appropriators Set FY2020 Topline Numbers

This week, the Senate took the first major step to advance fiscal year 2020 appropriations bills before the October 1 deadline.  The Committee on Appropriations approved, along party-lines, FY2020 topline budget allocations.  When comparing the Senate’s numbers to the House’s topline budget allocations, the most notable differences are that the Senate provided an increase in funding for Energy and Water Development, but a decrease in funding for Interior and Environment appropriations bills.  These two bills are responsible for funding key water infrastructure programs and activities.

 

Senate Appropriators Advance FY2020 Energy and Water Bill

Continuing their efforts to advance Fiscal Year 2020 appropriations ahead of the October 1 deadline, the Senate Committee on Appropriations approved the Energy and Water Development Appropriations bill on a bipartisan vote of 31-0.  The bill funds water programs managed by the U.S. Army Corps of Engineers and U.S. Bureau of Reclamation.  The bill now heads to the Senate floor for debate and a vote.  Overall, the bill provides a total of $48.87 billion.  This represents an increase of $4.23 billion over FY2019 spending levels and an increase of $10.81 billion above the budget request.  Below is a summary of the funding allocations for the key water infrastructure programs and activities from the bill’s Committee Report.

 

 

 

Corps of Engineers

$7,750b for the Corps of Engineers, an increase of $2,786b above the budget request.

  • $154.8b for Investigations, an increase of $77.8 m above the budget request.
  • $2,795b for Construction, an increase of $1,488,203,000 above the budget request.
  • $3,798b for Operation and Maintenance, an increase of $1,868,544,000 above the budget request.
  • $150m for Non-Federal Implementation Pilot Program (Section 1043(b) of WRRDA)

U.S. Department of the Interior – U.S. Bureau of Reclamation

$ 1.73b for the U.S. Bureau of Reclamation an increase of $620m above the budget request. This amount provides a total of $206m for drought resiliency programs authorized in WIIN and $134m for water storage projects as authorized in section 4007 WIIN.

WaterSMART Program

  • $5.2m for Cooperative Watershed Management
  • $5.2m for Basin Studies
  • $4.0m for Drought Response and Plans
  • $65m for Title XVI Water Reclamation & Reuse Program. Of which:
  • $20m shall be for water recycling and reuse projects as authorized in section 4009(c) of WIIN.
  • $20,000,000 shall be for Aquifer Storage and Recovery projects.

Groundwater Specific Provisions:

  • Aquifer Recharge: The Committee directs Reclamation to work closely with project beneficiaries to identify and resolve any barriers to aquifer recharge projects when appropriate, while utilizing full authority to prioritize funds for ongoing projects through completion. (p.62)
  • Groundwater Banking: The Committee is aware of the continuing regional efforts across the West to design and implement groundwater banking storage projects to enhance water supply reliability and to help mitigate drought impacts. The Committee fully supports these efforts and believes such projects are a cost-effective approach to addressing critical water supply management challenges. The Committee strongly encourages Reclamation, within available funds, to continue to foster and enhance existing partnerships with local and State water agencies and to undertake new partnerships where practicable. Reclamation’s contributions to these partnerships should include technical, logistical, and financial support, as appropriate, for the planning, design, and construction of groundwater banking storage projects. (P.63)
  • WaterSMART Program: Of the funding recommended for this program, $20,000,000 shall be for Aquifer Storage and Recovery projects focused on ensuring sustainable water supplies and protecting water quality with shared or multi-use aquifers, including municipal, agricultural irrigation, industrial, recreation and domestic users of the aquifer. (p.65)

The committee also reported out the Department of Defense appropriations bill by a party-line vote of 16-15.  The two spending bills now head to the Senate floor for debate and a vote.

USEPA Unveils Water Reuse Action Plan

This week, the U.S. Environmental Protection Agency (USEPA) Assistant Administrator for the Office of Water, David Ross, announced the release of USEPA’s draft National Water Reuse Action Plan.  The goal of plan is to elevate the importance of water reuse and encourage its practice as a tool to improve and increase water security, sustainability and resiliency across the nation.

To achieve this outcome, the draft outlines forty-six proposed actions that are categorized within ten strategic objectives.  The objectives include:

  • Enabling consideration of water reuse with integrated and collaborative action at the watershed scale;
  • Coordinating and integrating federal, state, Tribal, and local water reuse programs and policies;
  • Compiling and refining fit-for-purpose specifications;
  • Promoting technology development, deployment, and validation;
  • Improving availability of water information;
  • Facilitating financial support for water reuse;
  • Integrating and coordinating research on water reuse;
  • Improving outreach and communication on water reuse;
  • Supporting a talented and dynamic workforce; and,
  • Developing water reuse metrics that support goals and measure progress.

USEPA is currently accepting public comment on the draft plan.  As described in the draft, the agency desires public comments that identify the most important actions to be taken in the near term, identify and describe the specific attributes and characterizations of the actions that will achieve success, and secure specific commitments to lead/partner/collaborate on implementation of actions.  The public comment period will be open for 90 days upon its publication in the Federal Register.

House Oversight Committee Reviews Actions By PFAS Manufacturers

On Tuesday, the House Committee on Oversight and Reform’s Subcommittee on Environment held hearing entitled, “The Devil They Knew: PFAS Contamination and the Need for Corporate Accountability, Part III.”  The hearing was the third in a series of hearings the subcommittee has held focusing on PFAS contamination.  Subcommittee members heard from representatives from industries responsible for manufacturing of PFAS, and litigators who have tried cases involving PFAS contamination.

Chairman Harley Rouda (D-CA) convened the hearing, explaining that the purpose of the hearing was to understand when, and the extent to which, PFAS manufacturers knew the chemicals were toxic, and how the companies are addressing the issue of cleaning up contamination.

During the first panel, the subcommittee heard from litigators of PFAS contamination cases.  Witnesses Robert Bilott, Partner, Taft Stettinius & Hollister LLP, and Lori Swanson, Former Attorney General, State of Minnesota, provided the subcommittee insight into when certain manufacturers of PFAS, specifically 3M and DuPont, knew about the risks associated with the chemicals and the extent to which the companies took steps to conceal the risks.  Representative Debbie Dingell (D-MI) asked Swanson how designating PFAS under CERCLA would help with the clean-up of PFAS.  Swanson said it would be helpful because it would provide a guide for how to execute clean ups, especially at military bases.  Dingell then asked Swanson if she thought her National Defense Authorization Act amendment that would designate PFAS as hazardous under Superfund law would help speed up the process of cleaning up contamination.  Swanson said that such an amendment would accelerate the need to address PFAS contamination.  Bilott highlighted the concern over how wastewater treatment facilities consolidate PFAS into biosolids as part of their treatment process, which are then provided to farmers for land application.  As a result, Bilott cautioned that the biosolids could cause PFAS contamination into the land, animals, and crops.  There was no follow up discussion about Bilott’s comment.

During the second panel, the subcommittee heard from witnesses representing 3M, DuPont de Nemours, Inc., and the Chemours Company.  Daryl Roberts, Chief Operations & Engineering Officer, DuPont de Nemours, stated that it is the belief of his company that PFOA and PFOS should be designated hazardous under CERCLA due to their pervasiveness and persistence in the environment.  Representative Dan Kildee (D-MI) noted frustration over how when it comes to addressing contamination and the costs associated with clean up, the responsibility is “offloaded” to other parties that are not originally liable for the contamination and do not have adequate resources to address the issue(s).  Representative Katie Hill (D-CA) asked witnesses who is going to be responsible for paying for the clean-up of the contamination.  When witnesses failed to provide Hill with a definitive answer, she noted that if it is not the companies, who are originally responsible for the contamination, the burden will fall to the taxpayers.

All three industry witnesses agreed to the importance of congressional action to address PFAS-contamination and testified to working with Congress to find solutions.

Testifying at the hearing were: Robert Bilott, Partner, Taft Stettinius & Hollister LLP, Lori Swanson, Former Attorney General, State of Minnesota, Matthew Hardin, Commonwealth Attorney, Greene County, VA, Denise Rutherford, Senior Vice President of Corporate Affairs, The 3M Company, Paul Kirsch, President of Fluoroproducts, The Chemours Company, and Daryl Roberts, Chief Operations & Engineering Officer, DuPont de Nemours, Inc.

Administration Acts to Repeal WOTUS

This week, the U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE) made its long-anticipated repeal of the 2015 Waters of the United States (WOTUS) rule.  The announcement completes the first step of a two-step repeal and replace process.  Step two will be revising the rule to the standards determined by USEPA and USACE under the Trump Administration.  The proposed replacement of the rule is expected to be finalized by the end of this year. During the announcement, USEPA Administrator Andrew Wheeler stated, “We’re delivering on the president’s regulatory reform agenda.”  The proposed rule would exclude groundwater; ditches, including roadside and farm ditches; stormwater control features and wastewater and waste treatment systems.

The repeal is expected to be quickly challenged in court by environmental organizations. In response to the federal announcement, California Attorney General Xavier Becerra stated, “California won’t stand for this latest environmental attack by the Trump Administration, which could threaten federal protections for the majority of our waters,” and said the state would be challenging the repeal.

Legislative Activity This Week

S. 1689, A bill to permit States to transfer for one-year clean water SRF assistance to a state’s drinking water SRF fund to remediate lead in drinking water. – Sen. Cory Booker (D-NJ). Passed the Senate by voice vote.

New Legislation

S. 2456, A bill to establish centers of excellence for innovative stormwater control infrastructure, and for other purposes. – Sen. Tom Udall (D-UT)

H.R. 4266, Clean Water Through Green Infrastructure Act – Rep. Denny Heck (D-WA)

S. 2466, A bill to provide supplemental appropriations for safe and secure water, and for other purposes. – Sen. Kamala Harris (D-CA)

Reports and Regulation

Report on PFAS presence in groundwater at military bases around the U.S. – Report from the Environmental Working Group listing an additional 90 Army and Army National Guard installations that are contaminated with PFAS.

Chip-And-Ship Forest Clearing May Help Prevent Wildfire Disasters (NPR) – Story on how biomass can be a source for renewable energy and aid in efforts to prevent wildfire.

Congress Next Week

September 19, 2019

House Committee on Science, Space, and Technology – Hearing on the Science and Technology at the Environmental Protection Agency

September 18, 2019

House Committee on Transportation and Infrastructure – Hearing on The Administration’s Priorities and Policy Initiatives Under the Clean Water Act

Senate Committee on Environment and Public Works – Hearing on Improving American Economic Competitiveness Through Water Infrastructure