NWC Federal Spotlight  (July 8, 2022 edition)

Happy Post-4th of July NWC members–

We are now coming down to the wire in our nation’s capital. Congress is out this week before returning to legislative business next week for several weeks before their next recess. Read more in our Congressional Spotlight (below).

On the agency front, we wanted to make sure you knew that Al Lee, the Director of Civil Works at USACE is slated to retire at the end of September. Already talk and rumors have started on his replacement.

Within NWC, we have A LOT of upcoming meetings that you may be interested. Next week, both our Flood and Water Supply Caucuses meet, the following week we plan to have a special virtual working meeting on Principles, Requirements and Guidelines (PR&G) and at the end of August, we have our joint Regional Spotlight (Texas) on August 31 with Texas Water Conservation Association at the Trinity River Authority in Arlington, Texas. During this all-day meeting, we will be joined by commanders and staff from the Southwest Division and several USACE district offices to dig into how to build and strengthen our working relationship with the Corps. Additionally, registration will open soon for NWC’s Annual Meeting in Houston, Texas, on October 26-28, 2022. Look in the “Upcoming NWC events” section below to learn more.

Concurrently, for those of you who plan to attend NWC’s Annual Meeting, you may be interested in attending a full-day event on October 26 in honor of long-time NWC member, Andre McDonald, who passed away late last year. The event will occur in Fort Bend County, Texas, a short drive from Houston, with educational sessions, and a dedication ceremony, followed by a reception. To learn more, click here.

Moreover, we wanted to highlight a webinar being held by NWC member, Pacific Northwest Waterways Association (PNWA), on EPA’s rulemaking on Sec. 401 Water Quality Certifications on July 26, 2022, at 11 am PT. We hear, through the grapevine, that the rule, if finalized, may have a significant impact on water and water resource projects. Comments on the proposed rule are due on August 8. A huge thanks to PNWA for opening the webinar to NWC members! Log-in information will be available next week or if you have additional questions, please reach out to Dena Horton, PNWA Government Relations Director, at dena.horton@pnwa.net.

Finally, a huge shout out to our newest member, Van Ness Feldman! Welcome abroad!

Have a wonderful weekend and thank you for being an NWC member!

Best, Julie Ufner, NWC

NWC WELCOMES OUR NEWEST MEMBER, VAN NESS FELDMAN

Van Ness Feldman is a nationally recognized law and public policy firm focused on energy, environment, natural resource, infrastructure, transportation, land use and real estate, native affairs, and healthcare issues. For over four decades, attorneys and policy professionals have represented both public and private clients on a wide range of federal and state compliance, enforcement, permitting, and siting matters before legislative bodies, regulatory agencies, and the courts. With offices in Washington, DC, Seattle, and the Bay Area, their team of over 100 professionals is renowned for their ability to forge innovative, reasoned solutions to help clients successfully navigate the intersection between business operations and effective government engagement.

CONGRESSIONAL SPOTLIGHT

OVERVIEW. Congress is currently out this week for their July 4 recess. Both chambers are scheduled to return next week for several weeks before they leave for August recess, coming back in September for several weeks, before leaving in October for the campaign trail.

All said and done, before the election, the House has 23 legislative days left and the Senate 47 days. What is on their plate? A lot! Fiscal Year (FY) 2023 spending bills must be completed before the end of the federal fiscal year on September 30—although it is likely Congress will not meet this deadline and will have to punt until after the election. Based on the outcome of the election, it is anticipated that we could see FY2023 appropriations debate pushed to the end of December or in early 2023, with a continuing resolution(s) as a bridge between September 30 and enacted dates. Otherwise, on Congress’s plate, include health-related items, WRDA, a potential long-shot reconciliation package, and nominations, barring any unforeseen issues.

HOUSE APPROPRIATIONS COMMITTEE MOVES FY2023 APPROPRIATIONS. The House Appropriations Committee has been hard at work on FY2023 appropriations, passing all 12 bills by the end of June. On June 29, the Appropriations Committee marked up their $56.3 billion FY2023 Energy and Water Appropriations bill, which funds the U.S. Army Corps of Engineers, Bureau of Reclamation, Department of Energy and other independent federal agencies.

Under the Energy and Water Appropriations bill, the U.S. Army Corps of Engineers is slated to receive $8.9 billion in FY2023, an increase of $545 million over the current FY2022. This is $2.3 billion over the president’s budget request. Investigations would receive $160 million, construction gets $2.475 billion, operations and maintenance would receive $5.15 billion, Mississippi Rivers and Tributaries would receive $350 million, and the Harbor Maintenance Trust Fund would get approximately $2.318 billion, an increase of $269 million over FY2022 enacted levels. The bill also includes additional discretionary funding for USACE. If included in the final enacted package, the agency would have 60 days to submit a FY2023 work plan to Congress.

Under the Bureau of Reclamation, the bill provides $1.89 billion, $476.7 million over the President’s request. Within those funds, the measure gives $451 million in additional funding for water resources projects (including Water Infrastructure Improvements for the Nation Act (WIIN) projects); $189.3 million for WaterSMART programs to help western communities address drought. And $54 million is allotted for rural water projects.

The energy and water bill is currently waiting for House floor action, and based on the latest intel, the week of July 18 the House will vote on six appropriations bills in one package, H.R. 8294 (agriculture, energy and water, financial services, interior, military construction and veterans). The Senate has yet to release their FY2023 appropriations bills.

Resources:

  • To read H.R. 8294, click here.
  • To read the House committee report for the energy and water bill, click here.

WATER RESOURCES DEVELOPMENT ACT. The House of Representatives passed their WRDA bill last month. In the Senate, their version of WRDA 2022 has been passed out of the Environment and Public Works Committee and is waiting for floor action. What we have heard is, the EPW passed bill has already gone through a substantial redline, with new projects and policies added. Rumor has it that the revised Senate bill may go to the floor as early as this month, before conferencing with the House-passed bill later this month or into August.

Congressional Hearings of Interest

  • Taking the Helm: The Commandant’s Vision for the U.S. Coast Guard (Thursday, July 14, at 10am ET—House Homeland Security Committee). Click here to learn more.
  • Climate Smart from Farm to Fork: Building an Affordable and Resilient Food Supply Chain (Friday, July 15, 2022, at 9am ET—House Select Committee on the Climate Crisis). Click here to learn more.

FEDERAL AGENCY SPOTLIGHT

NEXT INLAND WATERWAYS USER BOARD MEETING (AUGUST 16, 2022). The 97th meeting of the Inland Waterways Users Board is scheduled for Tuesday, August 16, 2022, at the Courtyard by Marriott Walla Walla, Walla Walla, Washington. The meeting will begin at 8:00 A.M. local time and is expected to adjourn at approximately 1:30 P.M.  Registration for the meeting will begin at 7:30 A.M. An announcement of the upcoming Inland Waterways Users Board meeting will be published in the Federal Register, later in July.

COMMENTS ON PRINCIPLES, REQUIREMENTS AND GUIDELINES (PR&G) ARE DUE AUGUST 2. Just a quick reminder that the Assistant Secretary of the Army (Civil Works) opened a comment period for several upcoming policy initiatives they have planned on tribal, National Historic Preservation Act, updates to PR&G and environmental justice. This comment period closes on August 2. As part of the comment period, they also have a series of virtual listening sessions planned. If you have not signed up, the session on PR&G is scheduled for July 18. Specifically, on PR&G, the ASA’s office stated they would like the following questions addressed in both the online meetings and in comments: What should stay and/or change in the Corps planning process and which Corps missions, programs and investments should apply to PR&G? To register for the ASA(CW) sessions, click here.

Want to learn more about PR&G? Join us on Wednesday, July 20 for an overview of PR&G, as well as some issues to think about, including the points NWC should raise in our comments. Additionally, please refer to a presentation that Amy Larson, previous NWC president, gave to NWC members on PR&G at our 2020 Annual Meeting and a Senate hearing testimony she gave in 2021.

BIDEN ADMINISTRATION PUBLISHES ITS REGULATORY PRIORITIES. On June 21, the Administration released its Unified Agenda which lays out the administration’s regulatory priorities for the rest of the year (and beyond). Some of the rules that may be of interest to NWC members include, but are not limited to:

  • USACE—P.L. 84-99. Natural Disaster Procedures: Preparedness, Response, and Recovery Activities of the Corps of Engineers. The U.S. Army Corps of Engineers (Corps) is proposing to update the Federal regulation that covers the procedures that the Corps uses under section 5 of the Flood Control Act of 1941, as amended (33 U.S.C. 701n), commonly referred to as Public Law 84-99. For the next step, the Corps is planning to propose revisions to the program to address statutory changes under various Water Resources Development Act provisions and to formalize certain agency guidance relating to natural disaster procedures. A Notice of Proposed Rulemaking is expected to be released in August 2022.
  • USACE—SEC. 408. Policy and Procedures for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects. Where a party other than the US Army Corps of Engineers (Corps) seeks to use or alter a Civil Works project that the Corps constructed, the proposed use or alteration is subject to the prior approval of the Corps. Some examples of such alterations include an improvement to the project; relocation of part of the project; or installing utilities or other non-project features. The Corps is proposing to convert its policy that governs the section 408 program to a binding regulation. This policy, Engineer Circular 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408, was issued in September 2018. The agency plans to release a Notice of Proposed Rulemaking by Jan. 2023.
  • USACE—WIFIA. Credit Assistance for Water Resources Infrastructure Projects. The U.S. Army Corps of Engineers (Corps) proposes to implement a new credit program for dam safety work at non-Federal dams.  The program is authorized under the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) and Division D, Title 1 of the Consolidated Appropriations Act of 2020. WIFIA authorizes the Corps to provide secured (direct) loans and loan guarantees (Federal Credit instruments) to eligible water resources infrastructure projects and to charge fees to recover all or a portion of the Corps’ cost of providing credit assistance and the costs of conducting engineering reviews and retaining expert firms, including financial and legal services, to assist in the underwriting and servicing of Federal credit instruments. A NPRM was released in June and the public comment period closes on August 8, 2022.
  • USACE—FLOOD RECOVERY FEES. Floodplain Management Services Program Establishment of Fees for Cost Recovery. The U.S. Army Corps of Engineers (Corps) is proposing to amend this regulation to adjust fees collected from Federal agencies and private persons for certain floodplain management services. These fees have not changed since 1991. The Corps is considering adjusting them to recover the cost of providing these services. NPRM to be released in Aug. 2022.
  • USACE—PR&G. USACE Implementing Procedures for Principles, Requirements, and Guidelines. Section 2031 of the Water Resources Development Act of 2007 (Pub. L. 110-114) called for revisions to the 1983 Principles and Guidelines for Water and Land Related Resources Implementation Studies, resulting in the issuance of the Principles and Requirements (P&R) guidance document in March 2013 and the Interagency Guidelines in December 2014, which together comprise the Principles, Requirements, and Guidelines (PR&G). The PR&G is intended to provide a common framework and comprehensive policy and guidance for analyzing a diverse range of water resources projects, programs, activities, and related actions involving Federal investment in water resources.  The U.S. Army Corps of Engineers (Corps) would propose a regulation to show how it would apply the PR&G to the Corps’ mission and authorities.  In this proposed regulation, the Corps states that it intends to increase consistency and compatibility in Federal water resources investment decision-making to include considerations such as analyzing a broader range of long-term costs and benefits, enhancing collaboration, including a more thorough and transparent risk and uncertainty analyses, and improving resilience for dealing with emerging challenges, including climate change. A NPRM will be released in Dec. 2022.
  • USACE—NHPA. Procedures for the Protection of Historic Properties. The U.S. Army Corps of Engineers (Corps) considers the effects of its actions on historic properties pursuant to section 106 of the National Historic Preservation Act (NHPA). The Corps’ Regulatory Program’s regulations for complying with the NHPA are outlined at 33 CFR 325 appendix C. Since these regulations were promulgated in 1990, there have been amendments to the NHPA and revisions to the Advisory Council on Historic Preservation’s (ACHP) regulations at 36 CFR part 800. In response, the Corps issued interim guidance until rulemaking could be completed to ensure full compliance with the NHPA and ACHP’s regulations. The Corps would propose to revise its regulations to conform to the ACHP 800 regulations. NPRM by Oct. 2022.
  • USACE—WOTUS. Revised Definition of “Waters of the United States”–Rule 1. In April 2020, the EPA and the Department of the Army (the agencies”) published the Navigable Waters Protection Rule (NWPR) that revised the previously codified definition of waters of the United States” (85 FR 22250, April 21, 2020). The agencies are now initiating this new rulemaking process that restores the regulations (51 FR 41206) in place prior to the 2015 “Clean Water Rule: Definition of ‘Waters of the United States” (80 FR 37054, June 29, 2015), updated to be consistent with relevant Supreme Court decisions. The agencies intend to consider further revisions in a second rule in light of additional stakeholder engagement and implementation considerations, scientific developments, and environmental justice values. Final rule is to be released in fall 2022.
  • USACE—WOTUS. Revised Definition of “Waters of the United States”–Rule 2. The Department of the Army and the Environmental Protection Agency intend to pursue a second rule defining Waters of the United States” to consider further revisions to the agencies’ first rule (RIN 0710-AB40) which proposes to restore the regulations in place prior to the 2015 waters of the United States rule (51 FR 41206), updated to be consistent with relevant Supreme Court Decisions. This second rule proposes to include revisions reflecting on additional stakeholder engagement and implementation considerations, scientific developments, and environmental justice values. This effort will also be informed by the experience of implementing the pre-2015 rule, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule. NPRM expected in May 2023.
  • USACE—NWP. Reissuance and Modification of Nationwide Permits. The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899.  The NWPs authorize specific categories of activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental effects. The NWPs may be issued for a period of no more than five years per statute, and the Corps has the authority to modify or revoke the NWPs before they expire. In January 2021, the Corps reissued or modified 12 existing NWPs and issued four new NWPs along with NWP general conditions and definitions (RIN 0710-AA84) which are set to expire in March 2026. For these 16 NWPs, the Corps also reissued or modified the NWP general conditions and definitions. In December 2021, the Corps reissued or modified 40 NWPs and issued one new NWP (RIN 0710-AB29) which are also set to expire in March 2026. This proposed rulemaking may seek to modify Nationwide Permit 12 based on input received during an outreach engagement period prior to any rulemaking action. A NPRM is expected in Oct. 2022.
  • USACE—BRIDGE ALTERATION COSTS. Water Resources and Policies and Authorities: Navigation Policy–Cost Appropriation of Bridge Alterations. The existing U.S. Army Corps of Engineers (Corps) regulation adapts Coast Guard procedures under the Truman-Hobbs Act in 33 U.S.C. 516 to Corps navigation project feasibility plan formulation, with regard to apportionment of costs between Bridge Owners and the Government, when the Government requires bridge alteration to avoid obstruction of navigation. This final rule would revise 33 CFR 277 by removing regulatory text relating to matters also found Corps guidance. The Corps does not expect the change to have any substantive impact on the public, but removing this regulatory text is expected to provide clarity and reduce confusion for the public. The guidance on which the Corps will rely in place of the regulatory text, and update as necessary, is Engineer Regulation 1165-2-25 and can be found at: https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1165-2-25.pdf?ver=2013-09-08-233442-167. Final action is expected in July 2022.

EPA/INTERIOR RELEASE LIST OF PROGRAMS IMPACTED BY BIDEN’S JUSTICE40 PLAN. On June 24, the U.S. Environmental Protection Agency (EPA) and the Department of the Interior released a list of almost 140 programs that will be impacted by President Biden’s Justice40 initiative. Under Justice40, the administration aims to deliver 40 percent of the overall benefits of federal climate and clean energy investments to disadvantaged communities. Under the plan, 72 EPA and 65 Interior programs are impacted. Some EPA programs impacted include both the Drinking Water and Clean Water State Revolving Loan Funds, Brownfield Projects Program, Superfund, and more. Under Interior, several Bureau of Reclamation and Fish and Wildlife Service programs are impacted.

Resources:

FEMA ANNOUNCES 2022 HAZARD MITIGATION ASSISTANCE WEBINAR SERIES. On August 4, FEMA will begin hosting the 2022 Hazard Mitigation Assistance (HMA) Summer Engagement Series. This series provides information, background, insight and education about the Hazard Mitigation Grant Program (HMGP), the Building Resilient Infrastructure and Communities (BRIC) and the Flood Mitigation Assistance (FMA) programs.

HMA Webinar Schedule:

  • August 4, 2022,  2pm ET: Capability and Capacity Building Funding in the BRIC and FMA programs
  • August 11, 2022,  2pm ET: Mitigating Severe Repetitive Loss and Repetitive Loss Properties
  • August 18, 2022, 2pm ET: System-Based Mitigation: Building Enduring Community Resilience
  • August 25, 2022, 2pm ET: Application Pitfalls
  • September 22, 2pm ET: Building BRIC Qualitative and Quantitative Criteria
  • September 29, 2pm ET: Environmental Historic Preservation Review 101
  • October 4, 2022, 2pm ET: Using Grant Funding to Build Resilience: The How, When, and Where of Applying for the Hazard Mitigation Grant Program.

To register or to learn more, click here.

UPCOMING NWC EVENTS/MEETINGS

FLOOD CAUCUS MEETING (VIRTUAL, Tuesday, July 12 at 3pm ET). The Flood Control and Management Caucus is charged with examining issues tied to flood management, risk and flood control for waterways and levees nationally. Primary federal agencies of interest include but are not limited to the U.S. Army Corps of Engineers, Federal Emergency Management Agency, U.S. Fish and Wildlife Service, and the Natural Resource Conservation Service. NWC caucuses are free to join and any individual from a NWC member organization is eligible to join/participate.

  • During the July 12th meeting, the Caucus will be discussing Section 209 (creates a new zone for levee-impacted areas under the National Flood Insurance Program), Principles, Requirements and Guidelines listening session, and USACE’s Levee Design Manual Update.
  • Interested in participating? Email Julie Ufner (julie@waterways.org) to receive a zoom calendar invite, with supporting materials, and a virtual link.

WATER SUPPLY CAUCUS MEETING (VIRTUAL, Friday, July 15, 2022, at 2pm ET). The Water Supply Caucus is tasked with studying issues that pertain to water supply storage and reuse issues. Primary federal agencies of interest include but are not limited to the U.S. Army Corps of Engineers, Environmental Protection Agency, and the Bureau of Reclamation. NWC caucuses are free to join and any individual from a NWC member organization is eligible to join/participate.

  • During the next Water Supply Caucus meeting, the Caucus will be discussing the following: Status of Report on Water Supply as Primary Mission; PR&G Procedures Rulemaking – Overview and Water Supply Perspectives; Member Spotlight – Santa Clara Valley Water District; 1990 WRDA Section 306 re: Environmental Protection Mission and the Fall NWC Annual Meeting.
  • Interested in participating? Email Julie Ufner (julie@waterways.org) to receive a zoom calendar invite, with supporting materials, and a virtual link.

EXPLORING NWC COMMENTS ON PRINCIPLES, REQUIREMENTS, AND GUIDELINES (VIRTUAL, Wednesday, July 20, 2022, at 11am ET). On Wednesday, July 20 at 11am ET, NWC members are invited to join us to discuss potential comments for Principles, Requirements and Guidelines (PR&G). This is in response to a Federal Register notice on June 3, 2022, which requests input for a number of issues that the Assistant Secretary of the Army (Civil Works) plans to move on this year. https://www.federalregister.gov/documents/2022/06/03/2022-11881/notice-of-virtual-public-and-tribal-meetings-regarding-the-modernization-of-army-civil-works-policy.

  • During this meeting, Amy Larson, founding partner of Larson Strategies, and an expert on PR&G, will give a background/overview of the issue, before we open it up to a general discussion about what NWC comments should include.
  • If you have not received a zoom link, please email Julie Ufner (julie@waterways.org) to receive a calendar invite, with supporting materials and a virtual link.

NWC REGIONAL SPOTLIGHT ON TEXAS (IN-PERSON, Wednesday, August 31, 2022).  On August 31, 2022, NWC, in conjunction with the Texas Water Conservation Association, is holding their next Regional Spotlight at the Trinity River Authority offices (Thanks TRA!!). The Regional Spotlight series was designed as a way to introduce people to the U.S. Army Corps of Engineers, as well as help build deeper relationships with USACE division and district offices. The meeting itself will be held in Arlington, Texas and we have confirmed a number of division and district commanders and staff for the event which will dive into how to engage better with USACE; USACE permitting and project development process for water and waterways projects. This event will be in-person only and have limited registration (we are capped at 100), so please limit your registration to no more than three people per organization. That way we can accommodate participation among a wide(r) range of stakeholders and non-federal sponsors within our limited capacity. To register, click here.

NWC 2022 ANNUAL MEETING (IN-PERSON, Wednesday, October 26-28, 2022). NWC’s 2022 Annual Meeting is scheduled for October 26-28, 2022, in Houston, Texas. Registration and hotel block to open soon.