May 2018

Committee Leaders Unveil Senate WRDA Bill


By Julie Ufner, NACo Associate Legislative Director – Environment, Energy & Land Use
      Austin Igleheart, NACo Legislative Associate


On May 8, the U.S. Senate Environment and Public Works (EPW) Committee released the text of the Water Resources Development Act (WRDA) authorization bill, America’s Water Infrastructure Act of 2018. The bill was introduced by EPW Chairman John Barrasso (R-Wyo.) and Ranking Member Tom Carper (D-Del.), along with Transportation and Infrastructure Subcommittee Chairman Jim Inhofe (R-Okla.) and Ranking Member Ben Cardin (D-Md.). As major owners, users and regulators of water resources and infrastructure, counties are directly impacted by the policies and funding authorized through WRDA.

Historically, WRDA bills authorize water resources studies and projects and set policies for navigation, flood control, hydropower, recreation, water supply and emergency management for the U.S Army Corps of Engineers (Army Corps). The legislation is often passed on a biennial basis and addresses county interests related to ports, inland waterways, levees, dams, wetlands, watersheds and coastal restoration. However, over the past decade, only three WRDA-related bills – in 2007, 2014 and 2016 – have been enacted into law.

President Obama signed the last WRDA bill, the Water Infrastructure Improvements for the Nation (WIIN) Act, into law in December 2016. The bill will expire at the end of 2018. Congress must either extend WIIN or pass another authorization for projects approved under WIIN before it expires.

As owners, users and regulators of water resources and infrastructure, counties are directly impacted by the policies and funding authorized in the legislation. We often work with the Army Corps as a non-federal partner to strengthen local infrastructure. In addition, the EPW committee utilizes this particular authorization bill to address challenges facing communities across the country dealing with aging and failing water infrastructure.

The Senate bill would authorize new U.S. Army Corps of Engineers (Army Corps) projects and studies, including environmental restoration along the Louisiana coast and address hurricane and storm damage risk mitigation in St. Johns and St. Lucie Counties, Florida. The bill would also create programmatic changes to Army Corps programs; specifically, the bill would change the way Army Corps projects are vetted and approved, create a board of appeals for water storage projects and codify the U.S. Environmental Protection Agency’s (EPA) Integrated Planning process.

The measure would also authorize a multitude of federal agency studies on challenges to implementing a Water Infrastructure Financing Innovations Act (WIFIA) program in the Army Corps, how WIFIA can be better used by rural, disadvantaged and tribal communities, examine how the Army Corps can better address funding in urban areas and examine how the Army Corps can increase transparency with state and local partners. The bill states that if the Army Corps fails to complete a report or study within 180 days of the applicable date, $5,000 per week will be reprogrammed out of the Army Corps civil works program’s general expenses account.

Additionally, the bill includes a provision to study the existing cost-benefit analysis used by the Army Corps and the White House Office of Management and Budget (OMB) to determine which projects are submitted to Congress for WRDA authorization.

However, the bill does not include provisions to revise the Harbor Maintenance Trust Fund (HMTF) or policies to streamline the National Environmental Policy Act (NEPA) or any other Army Corps permitting programs. NACo supports the full expenditure of harbor maintenance trust fund collections on dredging and harbor maintenance, while providing equity for deep draft ports that do not have significant dredging needs by allowing them to use funds for other limited purposes. NACo also supports the revision of NEPA to strengthen the involvement of local government in the federal decision-making process, increase public involvement for local communities, expedite project analysis and make those decisions in a timely but effective manner.

The EPW Committee is tentatively scheduled to mark up the America’s Water Infrastructure Act of 2018 next week. To review the bill text, click here. NACo will provide continued updates as the WRDA authorization process moves forward. Further details on various provisions in the bill can be found below:

New framework created for Army Corps budgeting/project selection. Since earmarks were banned in 2010, lawmakers and stakeholders have been increasingly frustrated with the process used by the Army Corps to design projects. Under current law, proposals must be submitted to the Army Corps, which vets them along with OMB, to determine which projects will be authorized. The Senate bill instead lays the groundwork for the Army Corps to work with local stakeholders to write five-year work plans on an annual basis. According to the EPW Committee, this will “provide an additional opportunity for projects or initiatives of regional, tribal or local significance to receive appropriations.”

Increased focus on natural infrastructure. The Senate bill would require the Army Corps to consider both traditional and natural infrastructure alternatives in each feasibility study conducted by the Army Corps.

Accounting and overpayment reimbursements. The measure would require the Army Corps to keep a balance sheet for all non-federal partner cost-shares. In the event a feasibility study and/or project construction cost comes in under budget, the Army Corps would be required to credit back the excess funds to the non-federal partner for operation and maintenance of the project for which the cost-share was required.

Army Corps Board of Appeals created for certain water storage projects. The bill would create an Army Corps Board of Appeals for pending water storage projects. The Board would be comprised of five members—two representatives of state water development commissions and agencies with water storage needs, two representatives from the Army Corps, and one representative jointly selected by the Secretary and other entities.
Emergency plans for high hazard dams. The Senate bill would amend the National Dam Safety Program Act to require, as a condition of receiving federal funds, non-federal high hazard dam operators to have an emergency action plan in place that addresses incident detection, evaluation and emergency level determination; notification and communication; emergency actions; termination and follow-up; and public education and awareness of the emergency action plan.

Sewer, wastewater and stormwater infrastructure: The Senate bill would reauthorize Section 221 of the Clean Water Act (CWA), which authorizes $225 million for grants to address sewer overflows. It would also authorize $15 million over three years to establish a technical assistance program for small and medium-sized treatment works (i.e. publicly owned treatment works serving not more than 10,000 and 75,000 individuals, respectively) that would be carried out by qualified nonprofit technical service providers.

Integrated CWA planning processes. The bill would also require the EPA Administrator to inform local governments of the opportunity to undertake Integrated Planning (IP) and establishes an Office of Municipal Ombudsman that will notify communities of the opportunity to prepare IPs in the context of CWA consent decrees or administrative orders. Currently, the integrated planning approach offers a voluntary opportunity for a municipality to propose ways to meet multiple CWA requirements by identifying efficiencies from separate wastewater and stormwater programs and sequencing investments so that the highest priority projects come first. Finally, the bill lays out new parameters for how CWA affordability for rate payers should be determined under IP plans and removes the existing method that utilizes median household income.

Drinking Water Infrastructure: The Senate bill would expand allowable activities under the Safe Drinking Water Act (SDWA) State Revolving Fund (SRF) to allow states to include the implementation of source water protection plans as an eligible use of assistance from a state revolving loan fund. It would also require communities with over 10,000 residents that receive SDWA SRF dollars to comply with the Brooks Act. The Brooks Act, also known as Qualifications Based Selection, lays out requirements under which architects and engineers are selected for project designs based on qualifications rather than by price.

Other Programs and Authorized Funding: The Senate bill would also establish and authorize a number of other programs that may provide funding for counties to address an array of water resources and infrastructure needs, such as:

The Water Infrastructure Finance and Innovation Act (WIFIA). The measure would authorize WIFIA at $100 million per year for FYs 2020 and 2021. 
The National Dam Safety Program Act. The Federal Emergency Management Agency’s (FEMA) National Dam Safety Program Act would be authorized at $13.9 million for FYs 2020 and 2021. The program is instrumental in helping communities prepare for dam failures.

Rehabilitation of Army Corps constructed dams: The Senate bill would increase the per-project cost maximum from $10 million to $40 million for pre-1940 Army Corps construction dams.

Great Lakes Restoration Initiative. The measure would authorize the Great Lakes Restoration Initiative (GLRI) at $30 million in FY 2019, $60 million in FY 2020 and $90 million in FY 2021. The GLRI funds programs that support the health of the lakes, such as restoring habitat and wetlands, fighting invasive species and limiting stormwater runoff.

The National Levee Safety Program. The Senate bill would continue authorization for the National Levee Safety Program at $158 million for FYs 2020 and 2021. The program lays out voluntary levee safety guidelines and provides technical assistance to states to create local levee safety programs.
Watercraft inspection stations for invasive species. The bill instructs the Army Corps to set up and maintain locations to inspect watercraft for the presence of aquatic invasive species.

Non-Federal implementation pilot program. The Senate bill would extend a pilot program that authorizes non-federal partners to carry out feasibility studies and construction projects for flood risk management, hurricane and storm damage prevention, ecosystem restoration and coastal and inland harbor navigation.

Regional sediment management. The bill would amend current law to allow the Army Corps to address sediment build up at Army Corps projects.
Bridge repair and divestiture program for New England evacuation routes. The measure would allow the Army Corps to repair and replace agency-owned bridges used for evacuation during hurricanes and other weather events. After the bridge is repaired, the Army Corps, to the maximum extent practical, must transfer ownership and management of the bridge to a non-federal entity.

Reprinted from NACo County News, May 18 issue.

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