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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 26, 2021

Senate Committee Approves Limited Water Infrastructure Package

In a display of unusual bipartisan spirit, the Committee on Environment and Public Works unanimously approved the Drinking Water and Wastewater Infrastructure Act of 2021 (S. 914). The legislation represents the first step in what is expected to be a long march into the summer to develop a national infrastructure plan that would encapsulate the Biden Build Back Better Plan.

The bill represents a reprise from last year’s legislative effort to include renewal of USEPA’s state revolving loan fund program as part of WRDA 2020. Under the approved bill, the SRF would be renewed for five years and a series of climate resiliency and technology-oriented provisions to promote innovation to address climate impacts and deliver efficiencies are provided. Of special note, the bill marks the first substantive effort to address the Biden Administration priority to invest federal resources in disadvantaged communities and environmental justice. It provides that up to forty percent of the authorized assistance can be directed to small, rural and tribal communities’ needs through highly subsidized SRF loan assistance or direct grants.

Overall, it invests more than $35 billion in water resource development projects across the country. Of that $35 billion, more than 40 percent can be used to benefit small, disadvantaged, rural, and tribal communities through additional subsidization from the State Revolving Loan Funds or direct grant programs. As approved, the SRF funds are renewed at $22.8 billion, the sewer overflow/stormwater grants program would be authorized at $1.4 billion, and the long dormant Alternative Water Sources Act would be revived, receiving $25 million per year for five years.

Following the committee approval, Senate Majority Leader Charles Schumer notified the Senate of his priorities for the upcoming months’ legislative business and cited floor debate on water infrastructure would take place later in the Senate, providing further evidence that action on infrastructure policy is almost a certainty for this Congress.

House committee action on a water infrastructure package is expected in May based upon Committee on Transportation & Infrastructure’s Chairman Peter DeFazio (D-OR).

House Committee Approves Clean Water and Disaster Bills

This week, the House Committee on Transportation and Infrastructure reported out a series of bills address clean water policy and disaster response bills. A list of the bills the committee voted on can be found here. Of note, the committee reported out H.R. 2800, Local Water Protection Act and H.R. 610, San Francisco Bay Restoration Act by voice votes. During the mark up, there was a discussion between Members concerning the challenges local water utilities face when trying to implement strict quality mandates from the federal government.

The catalyst for the discussion was committee consideration of H.R. 587 that would revise the NDPES permit for Point Loma Wastewater Treatment Plant in San Diego, CA, that requires the plant to meet primary and secondary treatment standards for wastewater discharges. H.R. 587 would allow the plant to modify its NPDES permit to find alternatives for certain secondary treatment standards without securing a separate permit to make such modifications and instead allow the modifications under its primary NDPES permit. Representative Garret Graves (R-LA) offered an amendment that would allow the bill’s secondary treatment permit flexibility to all clean water utilities across the country. When presenting the amendment, Graves stated the double standard that the Point Loma Wastewater Treatment Plant is receiving as the reason for the amendment . Chairman Peter DeFazio (D-OR) explained that he reluctantly supports the bill because of the unique circumstances the Point Loma Wastewater Treatment Plant is under and that he does not believe that it should be a standard practice. Representative Jared Huffman (D-CA) noted that the permit waiver is a conditional waiver, and commented that by approving Graves’ amendment would create “a race to the bottom” in terms of ensuring water quality standards are upheld.

Representative Scott Perry (R-PA) noted during the discussion that it is important to acknowledge the that when the federal government publishes stringent water quality regulations and require immediate implementation of the mandates, it presents unique challenges to utilities. He explained that while mandates are important and necessary to securing quality standards, but current mandates are arguably beyond the limits of current treatment technologies and it forces local ratepayers of water utilities to pick up the costs necessary to implement and execute mandates. Graves’ amendment was ultimately not accepted and the committee reported out the bill. H.R. 587.

Senate Committee Approves Environmental Nominees and Broad Clean Water Infrastructure Package

the Senate Committee on Environment and Public Works reported out the nominations of Brenda Mallory, to be Chairwoman of the White House Council on Environmental Quality, and Janet McCabe, to be Deputy Administrator of the U.S. Environmental Protection Agency (USEPA), along party-line votes of 11-9.  The nominations now go to the Senate floor to be considered and receive a vote.

The committee also unanimously reported out S. 914, the comprehensive wastewater and drinking water infrastructure package. The package contains clean water and drinking water Senate provisions that did not make it into the final Water Resources Development Act of 2020 (WRDA) that was passed by Congress last year. During the committee’s consideration of S. 914, Senator Alex Padilla made a statement on key provisions within the package that are high priorities for him, including reauthorization of the WIFIA program and the new USEPA pilot program for low-income water rate assistance. He took the opportunity to again raise awareness over the growing crisis of water debt in the State of California, and across the country, that has been exacerbated by the COVID-19 pandemic.

FEMA Nominee’s Review Speeds Through Confirmation Hearing

Deanne Criswell’s nomination to become the next head of the Federal Emergency Management Agency sailed through the Senate Committee on Homeland Security and Governmental Affairs confirmation hearing all but guaranteeing a Senate confirmation vote to become the next head of the agency.  In a notable change in outlook from past FEMA positions, Criswell explicitly cited the role of climate change as a catalyst for the extreme storm events, drought and wildfires the country experiences. Criswell committed to the committee that, if confirmed, she would make a priority ensuring that FEMA addresses the needs of disadvantaged communities that “suffer disproportionately” from disasters.  She also noted the priority to make certain that communities take into account the impacts from climate change. Criswell would become the first woman to head FEMA and Senate approval of the nomination is expected.

Oregon Senators Introduce Wester Water Legislation

Senators Ron Wyden (D-OR) and Jeff Merkley (D-OR) introduced The Water for Conservation and Farming Act of 2021 (S. 953). The bill proposes $300 million for the Bureau of Reclamation to support water recycling projects, water-use efficiency projects and dam safety projects.  During a Senate Committee on Energy and Natural Resource, Subcommittee on Water and Power hearing, Wyden said the bill would enhance the Bureau’s ability to focus on forest restoration, groundwater, and other “natural” water infrastructure.  Other key provisions include:

  • $40 million for the Department of the Interior’s Cooperative Watershed Management Program for water and conservation projects
  • Would establish a grant program for any Reclamation States, Tribes, nonprofit conservation organizations, irrigation or water districts, and regional and local authorities to complete habitat restoration projects that improve watershed health and mitigate climate change.
  • Supports drought planning and preparedness by requiring federal agencies to prepare a plan to sustain the survival of critically important fisheries during eras of drought.

The subcommittee’s hearing discussion focused on the need for the U.S Bureau of Reclamation to expand the category of eligible natural infrastructure projects and increase the Bureau’s consideration of natural infrastructure projects in its funding awarding project decisions. Testifying at the subcommittee hearing were Bobby Cochran, Partner, Community Resilience & Innovation, Troy Larson, Executive Director, Lewis & Clark Regional Water System, Holly Richter, Arizona Water Project Director, The Nature Conservancy, and Charlie Stern, Specialist in Natural Resources Policy, Congressional Research Service.

Expansive Recycling Package Introduced; Includes Provisions on Wet Wipes, Microplastics, and Microfiber Pollution

This week, Representative Alan Lowenthal (D-CA) and Senator Merkley (D-OR) held a virtual press conference to announce the introduction of the package the Break Free From Plastic Pollution Act (BFFPPA). The bill is a comprehensive and expansive legislative package that addresses reducing plastic pollution and the environmental and public health threats posed by the pollution, as well as preventing future plastic pollution. While the main focus of the bill is on traditional recycling, there are three provisions that address plastics pollution in the clean water sector.

The bill contains an expanded section that would establish a “Do Not Flush” labeling requirement for non-flushable single-use wet wipes that have long plagued sewer and wastewater treatment infrastructure when they are improperly disposed of via the toilet. The labeling section would direct the U.S. Environmental Protection Agency Administrator to require covered manufacturers to print clear and visible “Do Not Flush” labeling notices on their product packaging. The bill defines the “Do Not Flush” symbol by the INDA and EDANA Guidelines for Assessing the Flushability of Disposable Nonwoven Products (Edition 4; May 2018).

BFFPPA also includes two additional sections addressing pollution caused by microfibers from textiles and microplastics in the water waste stream. The bill would establish a new grants program to support projects that reduce microfiber pollution through either improving industry and manufacturing best practices to reduce the generation of textile-based microfiber pollution or improve the filtration technology for textile-based microfiber pollution in washing machines and wastewater treatment plants. The legislation would also create a separate USEPA pilot program to study the efficacy and cost effectiveness of tools, technologies, and techniques used to remove and prevent the release of microplastics into the environment. As part of this program, USEPA will test natural and green infrastructure, and the mechanical removal systems and filtration technologies. The bill identifies eligible locations to carry out testing studies to include wastewater treatment facilities, stormwater systems, and drinking water systems. BFFPPA does not identify an authorization amount for either programs.

Upon introduction, Lowenthal’s office published a press release containing a section-by-section summary of the bill and fact sheet.

Legislative Activity This Week

S. 914, A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to reauthorize programs under those Acts, and for other purposes. – Unanimously reported out of the Committee on Environment and Public Works.

New Legislation

H.R. 2173, To amend the Federal Water Pollution Control Act with respect to wastewater infrastructure workforce development, and for other purposes. – Rep. Greg Stanton (D-AZ)

H.R. 2133, To amend the Federal Water Pollution Control Act and direct the Secretary of the Interior to conduct a study with respect to stormwater runoff from oil and gas operations, and for other purposes. – Rep. Matt Cartwright (D-PA)

S. 923, A bill to require the Administrator of the Environmental Protection Agency to establish a consumer recycling education and outreach grant program, and for other purposes. – Sen. Rob Portman (R-OH)

S. 916, A bill to provide adequate funding for water and sewer infrastructure, and for other purposes. (I-VT)

S. 914, A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to reauthorize programs under those Acts, and for other purposes. – Sen. Tammy Duckworth (D-IL)

S.953, A bill to provide for drought preparedness and improved water supply reliability. – Sen. Ron Wyden (D-OR)

S.939, A bill to encourage the research and use of innovative materials and associated techniques in the construction and preservation of the domestic transportation and water infrastructure system, and for other purposes. – Sen. Sheldon Whitehouse (D-RI)

S. 966 – A bill to require the Administrator of the National Oceanic and Atmospheric Administration to establish a Climate Change Education Program, and for other purposes. – Sen. Ed Markey (D-MA)

Reports and Regulation

CRS Report on USACE FY2021 Appropriations – Congressional Research Service on FY2021 appropriations for the US Army Corps of Engineers.