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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 – September 27, 2019

Impeachment Inquiry Vortex: Poses Questions on Impacts on Policymaking

The House Democrat leadership’s decision to initiate an impeachment inquiry has added a new dimension to an already turbulent congressional session.  It promises to carry consequences and opportunities for policymaking going into next year’s final congressional session; one that will lead up to the general elections.  Clearly, the impeachment inquiry will hang over other legislative activities.  However, this focus could also lead to quiet and important progress by congressional committees to advance legislation ranging from infrastructure to healthcare policies that could set the legislative agenda for 2020.  The first indication that Congress wants to avoid needless policy disputes was action this week by the Senate to approve a temporary spending bill to fund the government from October 1 through November 21.  The House and Senate can now work toward finalizing fiscal year 2020 spending bills, without the threat of a governmental shutdown before Thanksgiving.  Unlike prior years’ stopgap funding debates, efforts to include funding of the border wall were muted, at best, and led to the expeditious consideration and passage of the stopgap spending bill.   Over the next six weeks, congressional budget leaders will work to close the gaps between the House and Senate spending bills to arrive at a final spending agreement that would fund federal programs through September 2020.  The ability to reach a spending agreement, however, will continue to center on the festering debate over the border wall as well as significant differences between House and Senate spending priorities for many domestic programs, ranging from environment to housing programs.

On the policy front, efforts to renew the Water Resources Development Act (WRDA) that funds the nation’s ports, harbors and flood protection needs continue apace with the Senate Committee on Environment and Public Works seeking project requests from Senators.  In the House, the Committee on Transportation & Infrastructure is preparing to pursue its version of the bill in the coming months.  The goal for both committees is to finalize a rewrite of the law before the 2020 elections.  The priority to advance water infrastructure also continues with the House committee seeking to proceed to consideration of clean water bill as early as October.  Senate water infrastructure action is unlikely until WRDA is considered next year.

The question on how to respond to contamination of water, soil and air from PFAS/PFOA has seen legislation proceeding in both the House and Senate.  The House and Senate are currently working to negotiate a compromise on the PFAS amendments passed as part of the National Defense Authorization Act (NDAA).  In addition, the House continues efforts to advanced PFAS legislation through the committee process for consideration on the House floor.

Despite the intractable debate over how to address climate change, House and Senate committees have a series of bills pending approval or under development that would extend and expand upon policies and programs to address drought, climate resiliency, energy and water use efficiency and innovation in meeting the impacts attributable to climate change.  The priority to rebuild the nation’s roads and highways is teed up for action with a Senate bill under consideration and a House bill under development that could make a rewrite within reach and sent to the president for enactment next year before the current law expires in 2020.  Each of these policy initiatives present Congress with the opportunity to move forward outside of the noise of the impeachment inquiry and deliver results before the general elections to demonstrate to the electorate that policies and programs to address the challenges of infrastructure, among other matters.

Senate Committee Approves FY2020 Interior-Environment Spending Bill

The Senate Committee on Appropriations unanimously approved (31-0) the FY 2020 Interior-Environment spending bill.  The bill now goes to the Senate floor for debate and a vote on passage.  Overall, the legislation provides $35.8 billion for the U.S. Department of the Interior, U.S. Environmental Protection Agency, the Forest Service and other related agencies.  Below is a summary of funding provided to key agency programs.

U.S. Environmental Protection Agency (USEPA)

  • Provides total of $9.01 billion for USEPA, representing $161 million above FY 2019 enacted level.
  • Provides $21 million in additional funding for scientific and regulatory work on per- and polyfluoroalkyl substances (PFAS).
  • Provides $4.25 billion for State and Tribal Assistance Grants, of which:
    • $1.63 billion for the Clean Water and State Revolving Fund.
    • $1.12 billion for the Drinking Water State Revolving Fund.
    • $478 million for Geographic Programs (SF Bay, Great Lakes, Chesapeake Bay), an increase of $14,783,000 above FY 2019.
    • $25 million to assist small and disadvantaged communities develop and maintain adequate water infrastructure.
    • $19.5 million for targeted grants for lead reduction projects.
    • $2 million for a new Drinking Water Infrastructure Resilience and Sustainability Program.
    • $20.4 million for a new Sewer Overflow Control Grants program.
  • Provides $73 million for the Water Infrastructure Finance and Innovation Act (WIFIA) Program. (The Committee encourages the Agency to prioritize applications for WIFIA financing for projects that address lead and emerging contaminants, including PFOA and PFAS).

U.S. Department of the Interior

  • Provides $7.47 billion for the U.S. Forest Service, of which
    • $150 million is for hazardous fuels reduction, a $19 million increase over FY 2019
    • $5.167 billion to fight wildland fire, which is $1.22 billion above the FY2019 enacted level.
  • “The Committee urges the Service to increase cross-boundary collaboration with landowners near National Forest System lands and encourages the use of hazardous fuels funding for work across ownerships.”
  • Bureau of Land Management: $1.39 billion, an increase of $53 million above the FY 2019 enacted level.
  • Fish and Wildlife Service: $1.63 billion, an increase of $52.7 million above the FY 2019 level.

U.S. Geological Survey (USGS)

  • Provides a total of $1.2 billion, an increase of $49 million from FY 2019.
  • Includes $1.5 million for the installation of streamgages on certain transboundary rivers and an additional $1.5 million for the implementation of baseline strategy for transboundary rivers as outlined by the Surveys Water Quality Baseline Assessment for Transboundary Rivers.
  • Supports a cost effective national streamgage strategy and continues to fund the effort at $7 million.
  • Provides $1.7 million for the development of USGS analytical method for measuring PFAS compounds in the environment.
  • Provides $1.5 million for groundwater hydrologic studies for communities to determine potential effects of increased water usage, particularly related to proposed water transfers out of fully appropriated water basins in the West.

Energy and Commerce Subcommittee Advance PFAS Legislation

This week, the House Committee on Energy and Commerce Subcommittee on the Environment and Climate Change reported to the full committee fifteen Per- and polyfluoroalkyl substances (PFAS) related bills by voice vote.  A complete list of the bills can be viewed on the committee’s webpage, here. Among the fifteen bills, the subcommittee reported out the PFAS Action Act of 2019 (H.R. 535).  H.R. 535, authored by Representative Debbie Dingell (D-MI), would designate all chemicals under the PFAS classification as hazardous under Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund law.  This, if enacted, could eliminate the landuse application of biosolids.  The legislation mirrors her amendment passed by as part of the House National Defense Authorization Act (NDAA).

During her statement on the bill, Dingell explained that she understands there are concerns from stakeholder groups over liability questions under the law and she’s committed to working with concerned groups.  She stated that the point of the bill is to ensure those responsible for contamination pay for the clean-up.  The bill received support from Subcommittee Democrats, but was opposed by Republican Members.  Republicans objected to the broad reach of the bill and uncertainty how it would impact different sectors that are not polluters (e.g. airports, water utilities, etc.), as well as how it impacts the definition of what a “superfund site” is.

Representative Greg Walden (R-OR) remarked that the NDAA’s PFAS provisions will direct the U.S. Department of Defense to clean-up PFAS at military sites in some fashion.  Walden also mentioned that the U.S. Environmental Protection Agency (USEPA) has authority over this issue.  He cautioned that a CERCLA designation would create more problems than solutions and stressed the need to conduct scientific research prior to broad rulemaking.

Dingell responded to concerns saying that USEPA has been dragging its feet in proposing a rule, while people are suffering from the health impacts from the chemicals and the need to address the issue is now, not later.  Walden responded that he’s concerned that HR 535 would trump the scientific research going on at USEPA before it’s been completed.

The subcommittee also reported out the PFAS User Fee Act of 2019 (H.R. 2570) sponsored by Representative Harley Rouda (D-CA).  As described by Rouda, H.R. 2570 would “quire PFAS manufacturers to pay a fee into a trust fund that would be used to provide grants to communities and water systems dealing with contamination issues.”

Representative Bill Johnson (R-OH) was the only Member to make a statement and he opposed the bill.  Johnson opposed the bill’s creation of a trust fund that would impose a “blanket tax” on manufacturers regardless of the toxicity level of the chemical.  He also stated that financial assistant mechanisms already exist to help water utilities pay for capital improvement projects, such as projects to address PFAS clean-up.

USEPA Reacts to Congressional PFAS Legislation

The U.S. Environmental Protection Agency (USEPA) Administrator Andrew Wheeler publicly rejected House efforts to advance Per- and polyfluoroalkyl substances (PFAS) legislation this week, describing the legislation as “unworkable.”  Wheeler said that lawmakers should allow USEPA to undergo its regulatory process to determine how to manage the chemicals.  The Administrator referenced the amendment, authored by Representative Debbie Dingell (D-MI), passed as part of the House’s National Defense Authorization Act (NDAA) as problematic.  Dingell’s amendment would require all chemicals under the PFAS classification be designated as hazardous under Superfund law within a year of the NDAA’s enactment.  Wheeler said that achieving this within one year would be “virtually impossible to implement” due to the lack of USEPA scientific data on the topic.  Additionally, Wheeler said that Congress should avoid interfering with the agency’s process for determining drinking water maximum contaminant limits (MCL).  The Senate’s version of the NDAA includes an amendment to set an MCL for PFAS under the Safe Drinking Water Act within two years.

USEPA has stated that it will complete the first step in its process to determine a PFAS MCL for drinking water by the end of the year.

House and Senate Committees Mark-Up Water, Energy and Climate Bills

This week, House and Senate committees reported out a series of bills that address water resources, energy security, and climate resiliency issues.  Below is a summary of the bills the committees advanced.

Senate Committee on Energy and Natural Resources

The committee favorably reported out twenty-one bills addressing energy and water resources by voice vote.  Speaking to the water resources bills before the committee, Chairwoman Lisa Murkowski (R-AK) stated that the bills address “significant drought resilience challenges for communities through the west.”  Additionally, Murkowski noted that while the Drought Resiliency and Water Supply Infrastructure Act (S. 1932) was not part of the committee’s mark up, she intends to include the bill in the committee’s next mark up in November.  S. 1932, sponsored by Senator Cory Gardner (R-CO) and co-sponsored by Senator Dianne Feinstein (D-CA), would improve western states’ water supply and drought resiliency through investing in water infrastructure.  To review the reported bills, you can access the list here.

House Committee on Natural Resources

On Wednesday, the committee reported out a series of bills addressing wildlife protection and resiliency issues.  Among the bills reported out, the committee advanced the Coastal State Climate Preparedness Act of 2019 (H.R. 3541).  Sponsored by Representative Salud Carbajal (D-CA), the legislation would amend Coastal Zone Management Act of 1972 to require the Secretary of Commerce to establish a coastal climate change adaptation preparedness and response program.  The committee also reported out the Living Shorelines Act of 2019 (H.R. 3115) and the Keep America’s Waterfronts Working Act (H.R. 3596).

Reports and Regulation

New Report Shows PFAS Drinking Water Contamination Scope In California – CNN story on a new report from the Environmental Working Group detailing that 7.5 million people in California have PFAS-contaminated drinking water.

Environmental Council of the States (ECOS) letter to USEPA Administrator Wheeler – Letter detailing ECOS’ concern over actions taken under the current U.S. Environmental Protection Agency that fail to adequately consult with state counterparts.

Congress Next Week

Congress is on recess for two weeks.