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Congress Agrees to Second Stopgap Measure

The House and Senate passed a second stopgap bill to keep the government funded through December 20.  The House passed the bill on a vote of 231-192 and the Senate passed the bill on a vote of 74-20.  The president signed it into law.  The second stopgap maintains government funding at Fiscal Year (FY) 2019 levels and allows the House and Senate to continue work to pass appropriations for FY2020.  If the House and Senate are not able to pass FY2020 spending bills by December 20, Congress will need to pass a third stopgap spending bill that might lock in FY2019 spending levels for the remaining nine months of FY2020.

PFAS Legislative Initiatives Rest On National Defense Authorization Act Outcome

Congressional negotiators working to finalize the National Defense Authorization Act (NDAA) remain frozen in place over reaching a compromise between the House and Senate approaches to regulate Per- and polyfluoroalkyl substances (PFAS) chemicals.  As of this week, it is unclear whether congressional leadership will find consensus on PFAS.  This could lead to either a scaled back NDAA over the next couple of weeks or NDAA negotiators throwing up their hands and abandoning the effort to pass the bill until next year.

The effort to find a compromise took an ominous turn this week.  The Speaker of the House, Nancy Pelosi, suggested the House would not consider the NDAA absent PFAS clean-up provisions.  However, what constitutes acceptable PFAS provisions remains unclear.  House negotiators continue to demand that provisions that would designate the chemicals as hazardous under the nation’s hazardous waste cleanup law, commonly known as Superfund law, be included in the NDAA.  Such a designation could trigger potential liability for any entity that was directly or indirectly involved in the manufacturing, management, treatment or disposal of the chemicals.  Senate negotiators have resisted such a policy approach, instead preferring to require U.S. Environmental Protection Agency (USEPA) to issue monitoring and treatment standards under the Safe Drinking Water Act.   For public sector agencies, such as water and wastewater interests, the potential to designate PFAS chemicals as hazardous substances under Superfund has raised alarms.  It is believed that such a designation would mean that agencies that simply “receive” PFAS chemicals (that are omnipresent in the environment) in the course of carrying out the mission of improving water quality, could become subject to cleanup costs due to the way in which Superfund liability operates.  Calls to provide waivers from such liability have been rejected by congressional policymakers.

Complicating the effort to reach a compromise is the Administration’s rejection of any NDAA mandates that impose hazardous substance designation of PFAS.  Instead, the White House and USEPA are recommending reliance on the Safe Drinking Water Act to establish public health protection measures.  Additionally, industry opposition to the House approach has only deepened the divide. These factors, and others, may have contributed this week to the House Committee on Energy and Commerce’s approval (31-19) of H.R. 535.  H.R. 535 cobbles together several individual PFAS bills that received consideration earlier in the month.  Under the bill, designation as hazardous substances would be limited to PFOS and PFOA chemicals in the first year.  Within five years, USEPA would be tasked to determine whether the remaining universe of PFAS chemicals should be so designated.  Whether H.R. 535 is acted upon this year, which is remote, the bill is now the House marker on how to address the threats from the PFAS should Congress work on a comprehensive PFAS clean-up and regulation measure next year.

House Committee Examines Water Infrastructure Resiliency

On November 19, the House Committee on Natural Resources Subcommittee on Water Resources and Environment held a hearing entitled, Concepts for the Next Water Resources Development Act: Promoting Resiliency of our Nation’s Water Resources Infrastructure.

In her opening testimony, Chairman Grace Napolitano (D-CA) stated that the purpose of the hearing was to continue to review what legislative approaches should be considered for the 2020 Water Resources Development Act (WRDA).  The hearing specifically examined the need to build greater resiliency into U.S. Army Corps of Engineers (Corps) facilities.  Napolitano highlighted Prado Dam as an example of how utilizing existing infrastructure can provide enhanced groundwater recharge and water supply and build regional resiliency to drought.  Napolitano stressed that means different things to different areas of the country, “it is important that the Corps considers resiliency as part of its mission every day.”

Ranking Member Bruce Westerman (R-AR) stressed that “any conversation about resiliency planning for the future is moot if we can’t get any of these critical water resources infrastructure projects completed and delivered effectively and efficiently.”  Westerman urged the committee to ensure that the Corps is fulfilling obligations after disasters hit, reducing community vulnerabilities and completing projects.

Investing in green infrastructure and integrating green infrastructure into traditional infrastructure projects and taking a holistic and forward-looking approach to projects to ensure preparedness for future natural disasters events was highlighted.  Revisiting the Corps cost-benefit analysis for projects to have the analysis better reflect today’s weather and climate patterns, and recognizing the social and environmental justice concerns were also highlighted by committee members and witnesses.

Testifying at the hearing were Gerald Galloway, PE, PhD Brigadier General, (U.S. Army-Retired), Ann Phillips, Rear Admiral, (U.S. Navy-Retired), Special Assistant to the Governor for Coastal Adaptation and Protection Commonwealth of Virginia, Ricardo Pineda, PE, CFM Chair, Association of State Floodplain Managers Supervising Engineer Water Resources, California Department of Water Resources Division of Flood Management on behalf of the Association of State Floodplain Managers, Louis Gritzo, Ph.D Vice President FM Global Research Manager, Melissa Samet, Senior Water Resources Counsel National Wildlife Federation, and Julie Ufner, President National Waterways Conference.

House Energy and Commerce Approves PFAS Legislation

This week, the House Committee on Energy and Commerce reported out comprehensive legislation detailing how the U.S. Environmental Protection Agency (USEPA) should address Per- and polyfluoroalkyl substances (PFAS) contamination.  The bill includes provisions on how USEPA should regulate PFAS contamination in drinking water and what treatment steps should be undertaken to address contamination.  Among the provisions, is language directing USEPA to designate PFOA and PFOS as hazardous substances under Superfund law within one year of the bill’s enactment, and no later than five years after the bill’s enactment USEPA must determine whether to designate all PFAS chemicals as hazardous under Superfund law.  The provision was amended in committee from its original language that would have directed USEPA to designate all PFAS chemicals as hazardous under Superfund law within one year of the bill’s enactment.  The bill also directs USEPA to publish an interim guidance on the destruction and disposal of PFAS and materials containing PFAS, including soils and biosolids, spent filters, membranes, resins, granular carbon, and other wastes from water treatment processes.  The agency must publish the guidance within one year of the bill’s enactment.

The bill was reported out of committee by a vote of 31-19.  The House floor must now debate and vote on the measure.  Below is a summary of the key provisions that focus on PFAS contamination in drinking water.

  • Directs USEPA to promulgate a national primary drinking water regulation for PFAS. At a minimum the promulgation will include standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).
  • Directs USEPA to develop quality control and testing procedures to ensure compliance with promulgated national primary drinking water regulation in drinking water.
  • USEPA must establish monitoring requirements for public water systems as part of the national primary drinking water regulation that are tailored to public water systems that do not detect or consistently detect below the PFAS MCL established under the national primary drinking water regulation.
  • USEPA must publish a health advisory standard for PFAS substances that are not subject to the national primary drinking water regulation.
  • Directs USEPA to list PFAS substances that are not included the national primary drinking water regulation, but can be detected in water resources, in the Agency’s list of unregulated contaminants under the Safe Drinking Water Act. Directs the following public water systems to monitor for the listed PFAS:
    • Systems serving more than 10,000 persons
    • Systems serving not fewer than 3,300 and not more than 10,000 persons, subject to the PFAS substances included in the list of unregulated contaminants and the availability of appropriations
    • Systems serving fewer than 3,300 persons to monitor for the identified PFAS substances, subject to PFAS substances included in the list of unregulated contaminants and the availability of appropriations.
  • Directs USEPA to pay the reasonable cost of public water systems’ testing and laboratory analysis of PFAS as is necessary to fulfill monitoring requirement.
  • Authorizes $100 million to be appropriated for each of the fiscal years 2020-2024 to provide grants to address emerging contaminants, with a focus on PFAS. Directs that not less than 25% of the funding is to go disadvantaged communities or public water systems serving less than 25,000 persons.
  • Creates a grant program to help affected community water systems pay for costs associated with the implementation of eligible treatment technologies. Program is authorized to be appropriated $100 million for each of the fiscal years 2020-2021.
  • Allows for States to enter into cooperative agreements with the Federal government to address PFAS testing, monitoring, removal, and remedial actions to address contamination or suspected contamination of drinking water, surface water, groundwater, or land surface or subsurface strata. If the cooperative agreement pertains to addressing ground or surface water, the Federal government may enter into a grant agreement or contract with the local water agency with jurisdiction over the contaminated site, such as a public water system or publicly owned treatment works.

House Oversight Committee Holds Fourth PFAS Hearing

The House Committee on Oversight and Reform Subcommittee on Environment held its fourth hearing on the topic of Per- and polyfluoroalkyl substances (PFAS) this week, entitled “Toxic, Forever Chemicals: A Call for Immediate Federal Action on PFAS.”  The purpose of the hearing was to stress the need for “immediate and robust” federal regulation of the chemicals by the U.S. Environmental Protection Agency (USEPA), especially when it comes to contamination in drinking water.  Among the witnesses testifying at the hearing was Mark Ruffalo, an actor who is starring in a new movie, Dark Waters, detailing the true story of a PFAS contamination lawsuit brought by a West Virginia community against DuPont.  The hearing came days before the movie’s debute on November 22.

Chairman Harley Rouda (D-CA) stressed that water does not stay clean on its own, and that it is the duty of Representatives in Congress to work to protect the public’s water.  Rouda stated that USEPA needs to set a Maximum Contaminant Level (MCL) under the Safe Drinking Water Act for PFAS as a chemical class and the Department of Defense needs to commit to cleaning up contaminated sites and “work with the urgency this crisis demands.”

Speaking to the PFAS provision in the National Defense Authorization Act (NDAA) that would designate PFAS chemicals as hazardous under Superfund law, Representative Dan Kildee (D-MI) asked Scott Faber, Senior President of Government Affairs, Environmental Working Group, to explain what such a provision would do if enacted and whether it would ban PFAS chemicals.  Faber explained that the provision would allow for the regulation of the releases of the chemicals and require the clean-up of the most contaminated sites by those responsible for the release.  It is not a ban of the chemicals.  NDAA conference negotiations on this provision are still ongoing.

Additional testimony was provided by Mark Favors, U.S. Army Veteran, Member, Fountain Valley Clean Water Coalition, and Sherman Joyce, President, American Tort Reform Association.

House Republicans Introduce Water Legislation

This week, Subcommittee on Water, Oceans and Wildlife Ranking Member Tom McClintock (R-CA) introduced the Water Optimization for the West (WOW) Act (H.R. 5217).  In a press statement, he noted that H.R. 5217 “provides a common-sense approach to allowing water to flow quickly and efficiently to the communities that need it, while maintaining environmental protections.”  He added that the goal of the legislation is to streamline contact renewals, expedite water transfers and provide the Secretary of the Interior with the ability to modify Central Valley Project dam operations to provide greater operational flexibility.  The Subcommittee is expected to address western water needs in the coming year and H.R. 5217 is viewed as a marker of priorities for the Republican Members on the Subcommittee and in Congress.

As introduced, the legislation is notable for a broad reassessment of existing California water policy and specifically the Central Valley Project Improvement Act with the Act’s focus on restoring fisheries.  Among the key provisions, H.R. 5217:

  • Repeals the San Joaquin River Settlement Act of 2009, which set goals to restore and maintain fish populations in the San Joaquin River below Friant Dam to the confluence of the Merced River.
  • Revises the manner in which water is allocated between fisheries and water deliveries to reorder priorities for water supply needs and power generation.
  • Makes NEPA compliance met if Notice of Determination or Notice of Exemption for a project complies with California CEQA law. Prevents disruption of water deliveries or changes in a major federal action until final judicial review is made on a NEPA decision.
  • Transfers unobligated federal transportation funds intended for California’s High-Speed Rail project to support water storage infrastructure projects authorized through the Water Infrastructure Improvements for the Nation Act.
  • Establishes the Bureau of Reclamation as the lead for coordinating all reviews, permits, licenses, or other approvals or decisions required to construct surface water storage projects in the states covered under the Reclamation Act on lands administered by the Department of the Interior or Department of Agriculture.
  • Places responsibility for Endangered Species Act (ESA) compliance within the Department of the Interior’s U.S. Fish and Wildlife Service. This removes the responsibility ESA permitting, compliance and studies from National Marine Fisheries Service.
  • Authorizes the U.S. Department of the Interior to enter into contracts or agreements with any Federal agency, California water user or water agency, State agency, joint powers authority, or private organization to store and convey non-project water in federal reservoirs that have excess capacity for any beneficial purpose.
  • Reduces water storage funding authorization under Water Infrastructure Improvements for the Nation Act to $134 million. Provides that after the initial funding award for a Federal or State-led storage project by Congress, the Secretary of the Interior may award additional funding without congressional approval. Previously authorized projects are eligible to receive funding under this provision.
  • Increases funding for desalination to $48 million over five years.
  • Increases water recycling funding assistance to $100 million over five years.
  • Creates an Aquifer Recharge Flexibility Pilot Program to support projects to store water and reduce groundwater overdraft.
  • Encourages the Bureau of Land Management to use public lands for aquifer recharge. Authorizes a holder of a right of way, easement, permit or other authorization to transport water across public land (BLM lands) without additional authorization by the Secretary of BLM if there is no expansion or modification of the operation of the right of way, etc.
  • Provides that the federal government cannot condition issuance, renewal, amendment or extension of a permit, approval, license, lease allotment, easement , right of way or other land use or occupancy on the transfer of water right or require a water user to apply for or acquire a water right in the name of the U.S.
  • Provides that the federal government must recognize primacy of the States in evaluating, protecting, allocating, regulating, permitting and adjudicating water use.
  • Provides for expanded program to eradicate Nutria, providing $12 million per year over six years.
  • Provides for title transfers of facilities in the western U.S.

Senate Committee Considers Energy and Interior Nominations – Approves Legislation

On November 19, the Senate Committee on Energy and Natural Resources held a hearing considering pending nominations and several energy efficiency and natural resource bills.

The committee advanced the nominations of Dan Brouillette, to be Secretary of Energy (15-4); James Danly, to be a Member of the Federal Energy Regulatory Commission (12-8); and, Katharine MacGregor, to be Deputy Secretary of the Interior (14-6).  No date has been announced for Senate floor action on the nominations.

The committee approved the following bills as amended:

  • S. 1081, Land and Water Conservation Fund Permanent Funding Act. – Sponsored by Senator Joe Manchin (D-WV) – This bill would authorize permanent, dedicated funding at $9000 million for the Land and Water Conservation Fund.
  • S. 2799, Nexus of Energy and Water for Sustainability Act of 2019. – Sponsored by Senator Lisa Murkowski (R-AK).  This bill would require the Director of the Office of Science and Technology Policy to establish an interagency coordination committee or subcommittee, led by the Departments of Energy and the Interior, that focuses on the nexus between energy and water production, use, and efficiency.  The committee would serve as a forum for developing common federal goals and plans on energy-water nexus research, development, and demonstration (RD&D) activities.  Twice a year, the committee would issue a strategic plan on energy-water nexus RD&D activity priorities and objectives.

Legislative Activity This Week

H.R. 3702, Reforming Disaster Recovery Act of 2019. – Rep. Al Green (D-TX).  Passed the House on a vote of 290-118.

Reports and Regulation

New Natural Disasters Framework to Improve Federal Preparations and Response – U.S. Government Accountability Office (GAO) new guide to bolster resilience to natural disasters.  It is intended to assist in promoting opportunities to improve disaster resilience and reduce costs associated with federal responses to weather and climate disasters.

Superfund: EPA Should Take Additional Actions to Manage Risks from Climate Change – U.S. Governmental Accountability Office (GAO) new report on GAO’s findings that 60% of all nonfederal National Priorities List sites are in areas that may be impacted by climate change.

Mitigation Matters: Policy Solutions to Reduce Local Flood Risk – Pew Charitable Trust’s Mitigation Matters report detailing recommendations for how to respond to flood risks impacting cities across the U.S.

DWR Moves to Strengthen Protections for Fish, Improve Real-Time Management of State Water Project – California’s Department of Water Resources (DWR) began the process to review the long-term operations of the State Water Project.

Congress Next Week

Congress is on recess next week.