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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 10, 2020

House Appropriators Advance Fiscal Year 2021 Spending Bills

The House Committee on Appropriations made quick work this week and passed a number of fiscal year (FY) 2021 appropriations bills.  Along a party-line vote, the committee reported out the Interior, Environment, and Related Agencies Appropriations Bill, sending the bill to the House for floor debate and a vote. The committee is also expected to consider the Energy and Water Development, and Related Agencies Appropriations bill next week. The committee drafted the FY2021 spending bills with increased spending under the rubric of emergency funding to federal agencies to help economic, public health, and environmental recovery efforts following the COVID-19 crisis. House leadership has stated their desire to pass appropriations bills by the end of the month before Members leave for August Recess. If the House and Senate are unable to pass FY2021 spending bills before October 1 (a better than even prospect), Congress will pass a continuing resolution (CR) funding the government at current FY2020 funding levels to avoid a government shutdown.

The Interior-Environment bill funds the U.S. Environmental Protection Agency (USEPA) and the U.S. Department of the Interior (USDOI), as well as a handful of other independent agencies. Overall, the bill provides a total of $36.76 billion to the federal agencies, which represents a $771 million increase above FY2020 enacted level. USEPA is appropriated a total of $9.8 billion, a $318 million increase above the Agency’s enacted FY2020 level. USDOI receives a total of $13.83 billion in discretionary appropriations.  The bills’ spending levels in many instances reflect funding levels contained in the recently passed Moving Forward Act (H.R. 2).

The USEPA bill is notable for number of provisions. One of the more controversial provisions is a directive for the agency to proceed with research into PFAS to define the chemical as a hazardous substance under CERCLA (Superfund). Additionally, in a nod to the importance of innovative technology, the bill encourages the agency to use its water infrastructure resources such as the SRF to promote the use of smart water technologies.

The Energy-Water Development bill provides spending to the U.S. Army Corps of Engineers’ (USACE) and U.S. Bureau of Reclamation’s (USBR) water infrastructure and water resources management programs.  The bill provides a total of $49.6 billion, an increase of $1.26 billion above fiscal year 2020 enacted level.  Of the $49.6 billion, $7.63 billion is appropriated to USACE and $1.64 billion is reserved for USBR. A summary of the bill can be accessed here.

Below is a selected summary of the Interior-Environment’s committee report programmatic funding allocations that assist water resource infrastructure and management. The Energy-Water Development committee report will be released Sunday in anticipation of a full committee markup on Monday.

U.S. Environmental Protection Agency

The Committee on Appropriations recommends $9.4 billion for the U.S. Environmental Protection Agency (USEPA). The committee states its disappointment over USEPA’s controversial “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” The committee is concerned that the guidance and policies extend for a period to protect health and safety of the public. The committee expects USEPA to modify its COVID-19 enforcement guidance to include:

  • Discrete end date to guidance and state what criteria USEPA will use to determining whether to extend enforcement discretion period
  • Require prior notification if facility operations create risk or pose imminent thereat to human health or environment
  • Increase transparency of its discretionary use
  • Modify policy to require affirmative reporting by facilities that are seeking enforcement discretion

Science and Technology

  • $745 million for FY2021 to support research activities conducted by USEPA, of which $2.25 million is to be used for emergency supplemental funding to respond to impacts from COVID-19.
  • USEPA National Enforcement and Investigations Center funded at $14.5 million to support technical support to state and tribal partners for environmental enforcement activities.
  • Chemical Safety and Sustainability Research is funded at $131 million, of which not less than $1.5 million is to support PFAS research needs.
  • Research into safe and sustainable water resources provided $114.5 million, of which $1 million supports PFAS research needs.
  • $135.5 million to support research into sustainable and healthy communities. $1.5 million in additional funding to support PFAS research needs.
  • Not less than $2.5 million for research funding to be used to conduct research on nexus between exposure and health outcomes in COVID-19.
  • Encourages the continued deployment of smart water infrastructure technology to enhance upgrades to water and wastewater systems that:
    • Optimize water delivery performance,
    • Reduce energy usage,
    • Limit water waste in distribution systems, and
    • Enhance modeling of sewer of sewer collection networks.
  • USEPA to continue adequate funding to advance full scale applied research and testing capabilities to address threats to drinking water and drinking water infrastructure (e.g. weatherization equipment, SCADA, water tanks).

Environmental Programs and Management

  • Environmental Justice Program appropriated $14.12 million. Committee expects USEPA to use funding to implement EJ 2020 Action Agenda. In the context of COIVD-19, committee directs UESPA to develop definition for disproportionately exposed communities.
  • USEPA National Priorities funding at $18 million. Funding to be used for competitive grant program to support technical assistance for improved water quality or safe drinking water.
  • Geographic programs provided $555 million to support activities protecting water bodies and restoration and protection activities
  • USEPA to prepare report on single-use plastics, which should analyze:
    • Plastic types
    • Recyclability of each plastic type
    • Average recycled content of each plastic type
    • National regional rates at which plastic type is recycled
    • Evaluation of efficacy of state and local policies to reduce use of single-use plastics – including bans, fees, or other mandatory and voluntary policies designed to reduce or discourage use
  • Water ecosystem activities provided $51 million:
    • $675 thousand allocated to each National Estuary
  • Water-related human health protection activities funded at $107 million:
    • $1.5 million for regulation development associated with setting MCL in drinking water and other regulatory actions for PFAS
    • Committee directs USEPA to maintain Beach program at enacted level
  • USEPA directed to develop Clean Water Act. PFAS Effluent Limit Guidelines (ELG). Committee provides additional $2.5 million for developing ELGs protecting surface waters from PFAS.
  • Committee supports WaterSENSE and Urban Waters programs.
  • Directs USEPA to submit report to committee addressing deficiencies of WOTUS identified by Science Advisory Board within 30 days of bill’s enactment.

Hazardous Substance Superfund

  • $814 million to support Superfund Cleanup efforts, of which $2.5 million is to support regulatory work needed to designate PFAS chemicals as hazardous substances under CERCLA.
  • Committee recommends additional $1 billion in funding to Hazardous Substance Superfund Program to support cleanup activities, of which:
    • $800 million is to be used for Superfund Remedial Program
    • Not less than $150 million for emergency response and removal activities, including PFAS removal activities
  • Committee urges USEPA to prioritize work at sites where activities results in reduced human exposure to toxic substances.

State and Tribal Assistance Grants

  • STAG is provided $12 billion, of which:
    • Clean Water SRF receives $7.9 billion, of which $2 million is reserved for technical assistance and training grants.
    • Drinking Water SRF receives $4 billion.
  • Directs USEPA to develop uniform reporting framework for states to use to report Green Project Reserve spending and provide states tools to quantify estimated energy and water savings benefits of these investments.
  • Water Quality Monitoring Grants is funded at $4 million.
  • Small and Disadvantaged Communities Grants funded at $76 million to help communities meet Safe Drinking Water Act requirements under WIIN and AWIA.
  • Drinking Water Infrastructure Resilience and Sustainability Program Grants provided $4 million to support increased resilience of drinking water infrastructure to natural hazards.
  • Technical Assistance for Treatment Works Grants appropriated $13 million to provide technical assistance to small, rural and disadvantaged communities for planning, design, financing operations, and maintenance of water treatment infrastructure.
  • Sewer Overflow Control Grants appropriated at $456.7 million to support the control and treatment of sewer overflows.
  • Water Infrastructure Workforce Development grants funded at $3 million.
  • Nonpoint Source Grants is appropriated $188 million and includes $15 million for new Nutrients and Harmful Algal Blooms Categorical Grant.
  • Committee directs USEPA to use existing authorities and programs to provide technical and financial assistance to support water systems, and urges Agency to work with states to prioritize projects that address sewer pipe failures, weak stormwater infrastructure, septic system connection failures, and other at-risk sewer systems when selecting projects under CWSRF.
  • Committee directs Agency to work with states to emphasize projects that address drinking water systems with unsafe levels of arsenic, lead, PFAS, and other contaminants.

Water Infrastructure Finance and Innovation Program (WIFIA)

  • WIFIA funded at FY2020 $71 million, but is achieved by Administrative Provision that rescinds unobligated balances from FY2017-2019 funding.

U.S. Department of the Interior

  • Provides total $1.3 billion for Bureau of Land Management.
  • S. Fish and Wildlife Service appropriated $1.6 billion, of which $218 million for Ecological Services.
  • S. Geological Survey (USGS) appropriated $1.3 billion for survey, investigation, and research activities.
  • USGS Environmental Health program appropriated $23.5 million and is directed to continue research on toxins in the nation’s water bodies with a focus on health impacts in drinking water.
  • USGS Climate Adaption Science Centers and Land Change Science funded at $63 million
  • USGS Natural Hazards programs provided $173 million, including $25.7 million Earthquake Hazards program and supports expansion of ShakeAlert West Coast earthquake early warning system.
  • USGS Water Resources program funded at $237 million, including $46 million for the Water Availability and Use Science Program.
  • USGS National Groundwater and Streamflow Information Program funded at $1.6 million above FY2020 enacted $500 thousand.
  • Provides $5.73 billion for Wildland Fire Management activities.
  • $2.04 billion for a Wildfire Suppression Operations Reserve Fund (Reserve Fund).  The Reserve Fund provides “sufficient funds are available to protect American homes, lands, and wildlife from catastrophic fires without requiring a transfer of funds from the very activities that advance forest health and prevent wildland fires.”

U.S. Forest Service

  • State and Private Forestry appropriated $300 million, which is $17.2 million above the FY 2020 enacted level.
  • Hazardous Fuels appropriated $510 million for hazardous fuels reduction, which is $64.6 million above the FY 2020 enacted level.
  • National Forests – Collaborative Partnering – The Committee supports efforts to proactively mitigate the threat of uncharacteristic wildfires through preventative and restorative measures and recommends new and increased direct investment in landscape forest restoration efforts deriving from public-private partnerships.

USEPA Publishes Final Rule Updating Clean Water Act Section 401

On Friday, the U.S. Environmental Protection Agency published a final rule to amend water quality certification under Clean Water Act (CWA) Section 401.

Under Section 401, project sponsors seeking a federal permit to conduct activities that may result in a discharge to navigable waters must first obtain a water quality certification from the applicable state or tribal authority to verfiy that such activity will comply with the established water quality standards.

Several states and national environmental groups have voiced opposition to changes to the water quality certification process under Section 401 and have expressed plans to challenge the final rule in court.  Below is a select summary of key provisions in the final rule:

  • The state certification review process begins when an applicant requests a certification from the state. This is a change from prior standards when the review process began when the application for certification was complete.
  • Recommends that states, tribes, and project proponents establish a process and timeline to ensure that the necessary information is submitted to support a timely evaluation of the application.
  • if the state does not come to a certification decision within the established reasonable timeline, the federal permitting agencies are authorized to determine that the certification requirement is waived and issue a federal permit or license. The state or tribe has no legal authority to change, approve, or deny the federal agencies’ certification.
  • Recommends limiting conditions of a Section 401 certification to ensure compliance with the other CWA, federal agency(s), state, and tribal water quality provisions.
  • Encourages states and tribes to consult prior certifications, water quality data, and operating procedures to inform the review process. If the state or tribe requests additional information, such as a National Environmental Policy Act (NEPA) review, USEPA recommends that the state or tribe does not delay action on the certification process until after NEPA is complete.