NWC Federal Spotlight
October 15, 2021 edition
Happy Friday NWC Members,
Since our last Federal Spotlight on Tuesday, there have been some updates. The most relevant to you are the “Waters of the U.S.” rewrite and a court case that was filed in the Eastern District of Virginia on the U.S. Maritime Administration’s Marine Highway Grant Program.
We also have a guest piece under Members Corner on the upcoming WRDA 2022 bill (a huge thanks to John Anderson, Vice President, Van Scoyoc Associates for lending his knowledge to the piece!).
Happy Reading!
QUICK LINKS
- Capitol Hill Happenings
- Congressional overview
- House Committee chairs ask Biden to revisit Trump’s Nationwide Permit changes
- Upcoming Capitol Hill hearings of interest
- Judiciary Cases of Interest
- Center for Biological Diversity v. United States Maritime Administration
- Federal Agency Corner
- Waters of the U.S. revision sent to OMB for review
- USACE releases Climate Action Plan
- Ongoing Cyber Threats to U.S. Water and Wastewater Systems
- National Shippers Advisory Committee meeting
- National Chemical Transportation Safety Advisory Committee meeting
- Biden Administration Roadmap to Build an Economy Resilient to Climate Change Impacts
- Biden Administration Efforts to Address Bottlenecks at Ports of Los Angeles and Long Beach, Moving Goods from Ship to Shelf
- Biden Administration Makes Climate Information and Decision Tools More Accessible
- Members Corner
- How to advance your policy priorities under WRDA 2022 (By John Anderson, Vice President, Van Scoyoc Associates)
- Upcoming NWC Caucus Meetings
Congressional overview. The Senate was out this week. The House was expected to be out of town as well for the Columbus Day recess but convened for a rare vote on the debt ceiling. On Tuesday, as expected, the House passed a short-term $480 billion debt ceiling extension until December 3 by a vote of 219-206. President Biden signed the bill into law yesterday (Oct. 14). Last month, the U.S. Treasury Secretary warned that the U.S. would hit their debt limit by October 18. While this action wards off a U.S. default for now, it sets the stage for an explosive December, when the current continuing resolution for FYI2022 ends. As you are aware, the federal government’s FY2022 began on October 1, however, since none of the 12 appropriations bills had been signed into law, Congress passed a continuing resolution until December 3.
Both House and Senate leaders hope to pass two infrastructure related packages by the end of the month–a bipartisan $1.2 trillion bill passed by the Senate in August and a $3.5 trillion social infrastructure reconciliation bill. But, in the past several weeks, both bills have been stymied, after House Democrats insisted that both packages move together. The challenge now is the size of the $3.5 trillion reconciliation package—several Democratic Senators have already expressed concerns with the overall cost, as well as specific provisions on climate change. Since the Senate is currently split 50-50 with the Vice President as the deciding vote, it is essential that all Democratic senators are on board to pass the bill. As a result, Democratic leaders are working to assess the best path forward: Should they cut popular Democratic programs from the reconciliation bill (childcare, universal pre-K, affordable housing, free community college, paid leave, climate action, Medicare expansion, etc.) or should they shorten the authorizing time frames within the measure to reduce costs.
At this point, there is no consensus with House and Senate Democratic leaders on how to move forward. Capitol Hill insiders speculate that this may push consideration of both bills into November. Keep in mind that both the House and Senate have limited amount of in session/voting days left this year. The House has 24 days and the Senate 30 days.
Both chambers will be back in Washington DC next week for legislative business.
House committee chairs ask Biden to revisit Trump’s Nationwide permit changes. On October 13, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-Ore.) and Representative Steve Cohen (D-Tenn.) asked the Biden administration in a letter to revisit 57 Nationwide Permits (NWPs) that were finalized under the Trump Administration. In the letter, the Congressional members urged Biden to “halt implementation and re-open the (NWP) rulemaking for comment.” The NWP is a general permit program for activities in and near water, waterways and wetlands for activities that have minimal individual and cumulative adverse environmental impacts. NWPs are used when individual permits are not required. Trump finalized a rule to expand the universe of NWP from 12 to 16. This rule went into effect on March 21, 2021. To read about the 2021 NWP changes, click here. To view the letter, click here.
Upcoming Capitol Hill hearings of interest:
- HEARING: An Oversight Hearing to Examine the Coast Guard (Tuesday, October 19, 2021 at 2:30pm ET) before the Senate Commerce, Science and Transportation Subcommittee on Oceans Fisheries, Climate Change, and Manufacturing. For more information, click here.
- HEARING: Examining Evaluating the Federal Response to the Persistence and Impacts of PFAS Chemicals on our Environment (Wednesday, October 20, 2021, at 10am ET) before the Senate Environment and Public Works Committee. For more information, click here.
- HEARING: Achieving Mission Balance: Positioning the Coast Guard for the Future (Wednesday, October 20, 2021, at 10am ET) before the House Transportation and Infrastructure Committee on Coast Guard and Maritime Transportation. For more information, click here.
- HEARING: Global Supply Chains and Small Business Trade Challenges (Wednesday, October 20, 2021, at 10am ET) before the House Small Business Subcommittee on Oversight, Investigations, and Regulation. For more information, click here.
- HEARING: Good for Business: Private Sector Perspectives on Climate Action (Wednesday, October 20, 2021, at 2pm ET) before the House Select Committee on the Climate Crisis. For more information, click here.
- HEARING: Ensuring Equity in Disaster Preparedness, Response, and Recovery (Wednesday, October 27, 2021, at 10am ET) before the House Homeland Security Committee. For more information, click here.
Judiciary Cases of Interest
COURT CASE. Center for Biological Diversity v. United States Maritime Administration. On October 12, the Center for Biological Diversity filed a case in the Eastern District of Virginia challenging the U.S. Maritime Administration’s (MARAD) Marine Highway Grant Program. Specifically, the complaint alleges that MARAD’s grant fails to comply with Section 7 of the Endangered Species Act, which requires that all federal agencies consult with National Marine Fisheries Service and/or U.S. Fish and Wildlife Service on threatened and/or endangered specifies within a project footprint. However, concerns have been raised within the port community about attaching Section 7 consultation requirements onto grants, especially when these projects must meet a host of environmental regulations, including Section 7 requirements, when undertaking maintenance and construction projects. To read the complaint, click here.
EPA/USACE RULE. Waters of the U.S. revision sent to OMB for review. On October 13, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineer (USACE) sent a revised “Waters of the U.S.” (WOTUS) definition to the White House’s Office of Management and Budget (OMB) for review. The term WOTUS has been around since the 1899 Rivers and Harbors Act but in 1972 was added to the Clean Water Act to differentiate between which waters are regulated at the state versus federal level. In recent years, due to several controversial Supreme Court decisions, the WOTUS definition has become increasingly murky, leading to confusion in the field about what is and is not a WOTUS. The past several administrations have attempted to redefine WOTUS but have run into legal challenges. During the Trump administration, they rewrote the WOTUS rule finalized under the Obama administration, however, that rule ran into legal challenges. In August, Trump’s Navigable Waters Protection Rule was struck down by a federal district court in Arizona. In response, the EPA and USACE reverted to its previous 1986 definition as they worked to rewrite the rule. Under Executive Order 12866 on Regulatory Planning and Review, all proposed rules must be sent to OMB’s Office of Information and Regulatory Affairs (OIRA) for interagency review. While EO 12866 limits a review to 90 days, in the case of more controversial rules, the review can (unofficially) take longer before the rule is published in the Federal Register for public comment.
USACE PLAN. U.S. Army Corps of Engineers Climate Action Plan. As part of Executive Order 14008: Tackling the Climate Crisis at Home and Abroad, USACE released its Climate Action Plan. The Plan lays out the agency’s priorities to address climate effects and vulnerabilities in USACE’s decision making process for water projects. To read this plan, click here.
FBI/CISA/EPA/NSA Advisory. Ongoing Cyber Threats to U.S. Water and Wastewater Systems. On October 14, several federal agencies released a rare joint statement warning water and wastewater facilities of continued credible threats against their information technology and operational technology systems. The alert contains immediate actions that facilities can take now to protect their infrastructure against cyber-attack. The agencies note that “cyber threats across critical infrastructure sectors are increasing.” To read the advisory, click here.
During NWC’s recent 2021 Annual Meeting, we were joined by Mr. Shawn Taylor, a senior Systems Engineer from Forescout Technologies who reviewed the current cyber threat trends and discussed best practices that can be implemented now. To see Mr. Taylor’s powerpoint presentation, click here.
MARITIME MEETING. National Shippers Advisory Committee (Wednesday, October 27, 2021, 1:00pm—4:00pm ET). On October 27, the National Shippers Advisory Committee under the auspices of the Federal Maritime Commission. The Committee provides information, insight and expertise in ocean freight delivery systems to the Commission. Members of the public can attend the meeting if they pre-register. For more information, click here.
USCG MEETING. National Chemical Transportation Safety Advisory Committee(Tuesday, November 2, 2021, 1:00pm—3:00pm ET). The National Chemical Transportation Safety Advisory Committee will meet for a teleconference on November 2 to discuss matters related to the safe and secure marine transport of hazardous materials. For more information, click here.
WHITE HOUSE FACT SHEET. Biden Administration Roadmap to Build an Economy Resilient to Climate Change Impacts. On Friday, October 15, the White House released a comprehensive government-wide strategy to mitigate the impacts of climate change. The fact sheet lays out the Administration’s six priorities: promoting the resilience of the U.S. financial system to climate-related financial risks; protecting life savings and pensions from climate-related financial risk; using federal procurement to address climate-related financial risk; incorporating climate-related financial risk into federal financial management and budgeting; incorporating climate-related financial risk into federal lending and underwriting; and building resilient infrastructure and communities. To read more, click here.
WHITE HOUSE BRIEFING. Biden Administration Efforts to Address Bottlenecks at Ports of Los Angeles and Long Beach, Moving Goods from Ship to Shelf. Earlier this week, President Biden convened a meeting at the White House to discuss transportation challenges within the supply chain. As a result of the meeting, attendees announced a series of public and private commitments to move goods faster to market. To view those commitments, click here.
WHITE HOUSE FACT SHEET. Biden Administration Makes Climate Information and Decision Tools More Accessible. According to this fact sheet, the Administration is actively working to provide “science and data-based planning and response tools” to communities and the individuals who live there. Some of federal government initiatives include: a relaunch of climate.gov; the release of two reports on how the federal government will improve access to climate tools and services; and a request for information through the Federal Emergency Management Agency for a potential rulemaking on updating construction and land-use requirements under the National Flood Insurance Program. For more information on these efforts, click here.
MEMBERS CORNER
How to advance YOUR POLICY PRIORITIES under WRDA 2022 (By John Anderson, Vice President, Van Scoyoc Associates. Click here to learn more about John’s background)
Since 2014, Congress has been on track adopting a Water Resources Development Act (WRDA) every two years to address the Corps of Engineers’ Civil Works program of measures affecting flood risk management, storm damage reduction, navigation, and aquatic ecosystem restoration. These bills authorize the Corps of Engineers to conduct feasibility studies of potential water resources projects and to construct projects that have completed Chief’s Reports. In addition, a WRDA can modify ongoing studies and projects as well as adopt policies affecting the Corps’ Civil Works program.
It is time to be thinking about what you would like to see in the next water resources bill – WRDA 2022. In a letter to colleagues, the leadership of the Senate Environment and Public Works Committee has kicked off its efforts to develop a WRDA 2022 by asking Senators to submit their suggested provisions to the Committee by December 16. Already, Committee hearings on the Corps program have begun. Now is the time for interested parties to contact their Senators with their proposals so the Senators can meet the deadline the Committee has imposed. Individual Senators may create their own earlier deadlines for receiving WRDA proposals to allow themselves time to consider the submissions and meet the Committee date. In any case, anyone with a WRDA request needs to prepare and engage in the process right away.
If you want WRDA to authorize a new feasibility study or to authorize construction of a project where the Corps has completed, or nearly completed, a study and recommends a project, you want to contact your Senator and ask that he make the request to the Committee. It is always good to help the Senator help you by providing as much justification for the request as you can. The Corps District can often help with facts and numbers to support your case. Recruiting other entities that would benefit from the provision, such as communities, businesses, and associations, to send their support letters to the Senator and the Committee would also help. Policy initiatives work the same way, although because of the typically broad reach of policy changes, it is more important to get a broad range of affected entities to work with you to engage several Senators,
The Environment and Public Works Committee staff will prepare a draft bill with the goal of having the Committee and the Full Senate vote on it early next year.
The House is expected to begin a similar process on its side of the Hill sometime early next year and if history is our guide, we can expect a House bill in late Spring. House and Senate will spend the Summer and perhaps early Fall of 2022 reconciling the differences in their WRDAs resulting in final WRDA passing Congress just before the 2022 Mid-term election.
If you miss this Senate effort going on now, you can aim to get in the House bill later. But it is definitely an advantage to have your provision in the original text of both House and Senate bills.
Currently, all of NWC’s caucuses are hard at work at crafting statements that reflect the scope of their caucuses. Additionally, they are drafting potential policy for NWC’s Legislative Policy Committee (LPC) to consider for NWC’s Water Resources Development Act 2022 requests. If you are not involved, and would like to be, please contact Julie Ufner, NWC President and CEO at julie@waterways.org.
NWC Navigation Caucus Meeting: The next regularly scheduled quarterly meeting is Tuesday, January 11 at 2pm ET
NWC Flood Control Caucus Meeting: TBD
NWC Water Supply Caucus Meeting: The next regularly scheduled bimonthly meeting is Friday, December 17 at 2pm ET
NWC Hydropower Caucus Meeting: TBD
As always, if you have any questions, please do not hesitate to reach out to us. Thank you again for your support of NWC!
