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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 – July 26, 2019


Budget Deal Prepped and Ready for Enactment as Congress Prepares for Summer Doldrums

On Thursday, the House of Representatives voted, 284-149, to approve H.R. 3877, a $2.7 trillion budget package that accomplishes a series of policy priorities. Passage was notable due to the broad support from progressives, moderate Democrats and 65 Republicans.  Opposition to the deal from fiscal hawks, like the Freedom Caucus, was silenced by the overwhelming vote and White House support for the agreement.  The Senate will consider the measure next week before joining the House for its summer recess.

Chief among the provisions is an agreement to lift the debt ceiling until September 2021 and thereby dispense with Wall Street’s concerns that the United States could default on federal debt service payments.  The agreement also lifts the overall spending in Fiscal Years 2020 and 2021 by approximately $320 billion, providing funding increases for both domestic programs and national security spending. For FY 2020, congressional appropriators will have an additional $100 billion to dedicate to domestic spending accounts. The absence of the agreement would have triggered billions in across-the-board spending reductions in FY 2020 program spending and set the stage for a second round of reductions in FY 2021 during the presidential and congressional elections.  Adoption of the agreement is also notable because it removes a politically combustible issue that could impact the elections for both parties and the President.

The budget agreement, however, does not solve the challenge of setting individual agency spending priorities.  Instead, the House and Senate Committees on Appropriations will need to reach compromises on spending priorities within the twelve spending bills. However, a handshake agreement among congressional leadership not to attach “poison pill” provisions onto the spending bills could fail and create obstacles to final spending agreements.

The House put in place its priorities when it passed several minibus spending bills earlier this spring that cobbled together multiple agency spending measures.  The Senate still needs to vote on its spending bills, this is expected to take place within the Committee on Appropriations in September.  Assuming that committee action proceeds smoothly, the full Senate would need to debate and vote on the bills with record speed to avoid a funding lapse on October 1.  Even if the Senate debate proceeds with swiftly, the ability to reach compromises with the House before October 1 seems dubious and would make at least a short-term stopgap spending bill necessary to provide additional time to finalize spending bills agreements that the president could sign into law.  In the end, with the overall agreement to lift spending ceilings, allowing for the funding of vital infrastructure programs and other environmental and public health programs, it appears certain that FY 2020 budget agreements will be reached, making the potential for program eliminations or reductions nonexistent.

House Oversight Committee Holds First of Two PFAS Hearings

On Wednesday, the House Committee on Oversight and Reform, Subcommittee on Environment held a hearing entitled “The Devil They Knew – PFAS Contamination and the Need for Corporate Accountability” to examine the history and science behind Per- and polyfluoroalkyl substances (PFAS) chemicals, the role industry played in the development of the chemicals, and the health risks associated with PFAS contamination.  Chairman Harley Rouda (D-CA) opened the hearing, he stated that this is the first of two hearings the Subcommittee will hold on PFAS contamination.  The second hearing, scheduled for September 10, will focus on testimony from industry representatives.

Steve Sliver, Executive Director, Michigan PFAS Action Response Team, Michigan Department of Environment testified that the state is responding to PFAS contamination with “very little support from the federal government.” Silver criticized USEPA for failing to establish national, enforceable standards, despite evidence of adverse health effects. Silver noted that Michigan is proceeding to develop our own standards because the USEPA has not acted in a timely manner.

Ranking Member James Comer (R- KY) asked Jane Luxton, Partner, Lewis Brisboise Bisgaard & Smith LLP, how USEPA should proceed with setting a maximum containment limit (MCL) for PFAS under the Safe Drinking Water Act (SDWA).  Luxton responded that any truly effective regulation and management of PFAS chemicals must be based on the best scientific evidence available, using legally defensible processes that will stand up under judicial review.

Additional testimony was provided by: Bucky Bailey, Affected Resident and Activist, Parkersburg, WV; Jamie C. DeWitt, Associate Professor, East Carolina University; Emily Donovan, Co-Founder, Clean Cape Fear; Glenn Evers, President, IS2 Consulting; Jane C. Luxton, Partner, Lewis Brisbois Bisgaard & Smith LLP; Robert R. Scott, Commissioner, New Hampshire Department of Environmental Services; and Sandy Wynn-Stelt, Affected Resident and Activist, Belmont, Michigan.

House Committee Examines Bureau of Reclamation Priorities

On July 24, the House Committee on Natural Resources, Subcommittee on Oversight and Investigations held an oversight hearing on “The Status of the Reclamation Fund and the Bureau of Reclamation’s Future Infrastructure Funding Needs.”

Chairman T.J. Cox (D-CA) stated that the purpose of the hearing was to identify a long-term solution to water infrastructure investments. Specifically, to identify options to better utilize Reclamation Fund receipts to address significant water needs in western states.

Chairman Cox explained that the Reclamation Fund derives revenues from public land sales, Reclamation project repayments, water contracts, power revenues, and onshore natural resource and mineral royalties. Congress appropriates money from the Reclamation Fund for the investigation, construction, operation, and administration of U.S. Bureau of Reclamation (USBR) projects. Cox noted that the collected receipts exceed congressional appropriations.  He highlighted that in past several years over $1 billion in Reclamation Fund receipts have been left unappropriated each year.

Cox noted that he is a co-sponsor of the Securing Access for the Central Valley and Enhancing Water Resources Act (SAVE Act), H.R. 2473.  H.R. 2473 would direct $300 million in funding annually, from FY2030 to FY2060, that would otherwise be credited to the Reclamation Fund. H.R. 2473 would provide $100 million per year in funding for authorized surface and groundwater storage projects, authorized water reclamation and reuse projects, and WaterSmart program water efficiency and conservation grants.

In addition, Cox mentioned that the subcommittee is currently in the process of developing separate legislation to utilize the Reclamation Fund for a reliable, long-term solution for water infrastructure investment by making it a true revolving fund or, otherwise, requiring appropriations to match receipts.

Ranking Member Louie Gohmert (R-TX) disagreed with Cox, stating that the Reclamation Fund should remain subject to the appropriations process to maintain congressional oversight and that any surplus is a “false narrative since these funds have already have long been spent elsewhere.” Gohmert explained that in 2018, oil and gas receipts accounted for 66% of the Reclamation Funds revenues and that efforts by Democrats to remove federal lands from oil and gas production only harms the future of the Reclamation Fund.

Grayford Payne, Deputy Commissioner, Policy, Administration and Budget for the USBR stressed the importance of the Reclamation Fund to address its infrastructure funding needs.  Payne testified that the Bureau prioritizes funding based on its capacity to complete projects and that Congress retains discretion to appropriate money from the Reclamation Fund for Bureau of Reclamation projects every year.  Payne expressed a willingness to work with the Subcommittee on efforts to improve utilization of the Reclamation Fund receipts to address western water needs.

Federico Barajas, Executive Director, San Luis and Delta-Mendota Water Authority, testified that increased access to funding from the Reclamation Fund would protect existing facilities and enhance water infrastructure for reliable water supplies.

Tony Willardson, Executive Director, Western States Water Council, testified that Congress and the Administration should investigate the advantages of converting the current Reclamation Fund to a revolving trust fund to expedite completion of delayed projects and fund deferred maintenance, repair and replacement. Willardson also supported increased funding for WaterSMART programs to advance basin studies, cooperative watershed management, drought response assistance, water reclamation and reuse projects, and water conservation.

Additional testimony was provided by Paul Arrington, Executive Director, Idaho Water Users Association.

DoD To Create PFAS Task Force

Newly confirmed U.S. Department of Defense (DoD) Secretary, Mark Esper, announced that DoD will setup a task force to address per- and polyfluoroalkyl substance (PFAS) contamination on and near military bases.  Key areas of focus for the taskforce, include:

  • finding and funding an effective substitute firefighting foam without PFASs;
  • managing public and Congress’s perceptions of DoD’s efforts;
  • identifying science-supported standards for exposure and clean up; and
  • interagency coordination.

The task force will be chaired by DoD Assistant Secretary of Defense for Sustainment.  The memorandum states that the task force will report on its composition and charter within 30 days and provide an update to the DoD Secretary within 180 days.

House Democrats Announce Effort to Advance Climate Legislation

House Committee on Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), Subcommittee on Environment and Climate Change Chairman Paul Tonko (D-NY) and Subcommittee on Energy Chairman Bobby Rush (D-IL) announced plans to conduct a series of hearings and stakeholder meetings, beginning this fall, with the intent to develop legislation that would transition the U.S. economy reliance on energy sources that would deliver net zero greenhouse gas emissions by 2050

Legislative Activity This Week

H.R. 34, Energy and Water Research Integration Act of 2019.  Passed House by voice vote.

New Legislation

S. 2236, A bill to require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions, and for other purposes. – Sen. Cory Booker (D-NJ)

S. XXXX, To provide supplemental appropriations for safe and secure water, and for other purposes. – Sen. Kamala Harris (D-CA)

H.R. 3521, Wastewater Infrastructure Workforce Investment Act. – Rep. Greg Stanton (D-AZ)

H.R. 3944, To amend the Water Resources Reform and Development Act of 2014 to modify the procedure for communicating certain emergency risks, and for other purposes. – Rep. Kevin Hern (R-OK)

H.R. 3923, To require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions, and for other purposes. – Rep. Raul Ruiz (D-CA)

H.R. 3919, To require research in coastal sustainability and resilience, to ensure that the Federal Government continues to implement and advance coastal resiliency efforts, and for other purposes. – Rep. Seth Moulton (D-MA)

S.__/H.R.__, Clean Energy Victory Bonds – Would provide funding to renovate existing inefficient federal buildings or building new energy efficient buildings; increase funding for existing federal-state-local grant programs; and, offer tax incentives and tax credits for clean energy technologies. Senator Tom Udall (D-NM) and Representatives Zoe Lofgren (D-CA) and Doris Matsui (D-CA) – (Summary)

Reports/Studies/News

Report – Safe for Swimming? Water Quality at Our Beaches (Environment America)

American Infrastructure July/August 2019

Congress Next Week

July 30
Senate Committee on Environment and Public Works – Mark Up – Surface Transportation Reauthorization