NWC News Alert (May 18, 2022)
HOUSE T&I TO MARKUP WRDA 2022 TODAY—RELEVANT SECTIONS OF INTEREST ARE BELOW
The U.S. House of Representatives Transportation and Infrastructure Committee (T&I) is scheduled to move their bipartisan version of Water Resources Development Act of 2022 (WRDA 2022) today (May 18). The 197-page bill offers a framework for U.S. Army Corps of Engineers (Corps) studies, projects, modifications and policy changes on a biennial basis. The U.S. Senate Environment and Public Works Committee passed their bill (S. 4136) out of committee on May 4 and it is currently waiting for floor action.
• To read the House WRDA 2022 bill, click here.
• To read the Senate WRDA 2022 bill, click here.
• To watch the House T&I Committee markup today at 10am ET, click here.
While NWC is still reading and analyzing the 197-page WRDA 2022 bill, we can offer some initial high-level reads, as well as flag several provisions of potential interest below:
TITLE I—GENERAL PROVISIONS
SEC. 101. FEDERAL BREAKWATERS AND JETTIES. This section directs the US Army Corps of Engineers (Corps) to ensure that repair or maintenance activities at federal jetties or breakwaters meet the project’s authorized purpose AND ensure that any harbor or inland harbor is protected from projected changes in water action or height (including changes resulting from sea level change over the useful life of the project). The Corps may not classify repair or maintenance as a major rehabilitation if such repairs are necessary to restore the functionality of the project or if regular and routine maintenance has not been carried out and the structural integrity of the jetty or breakwater is degraded due to a lack of maintenance.
SEC. 102. EMERGENCY RESPONSE TO NATURAL DISASTERS. This section authorizes the Corps to repair or restore a shore protection project or structure beyond the original design level of the project to account for increases in projected wave action, height, or storm surge to meet the authorized purposes of the project. (This aims to address a major concern of shore communities seeking to maintain adequate protection when repairing or restoring shore protection projects, considering concerns about relative sea level change and more extreme weather events.)
SEC. 103. SHORELINE AND RIVERINE RESTORATION. This section of the House bill contains a very pared back version of language from Section 102 (Shoreline and Riverbank Protection and Restoration Mission) of the Senate’s WRDA 2022 bill. [Note: The Senate language in that bill’s Section 102 would give priority to the protection and restoration of the shorelines, riverbanks, and streambanks of the United States from the damaging impacts of extreme weather events and other factors contributing to the vulnerability of coastal and riverine communities and ecosystems].
The House provision contains language, like the Senate bill, that would amend section 212 of the WRDA 1999 (33 U.S.C. 2332) to allow the Corps to carry out projects for the protection and restoration of coastal shorelines and riverbanks. Unlike the Senate bill, the House bill does not give “priority” to the protection and restoration of shorelines, riverbanks, and streambanks as compared to other project types and purposes. The House provision also would provide discretion in meeting standard economic justifications.
SEC. 104. TIDAL RIVER, BAY, AND ESTUARINE FLOOD RISK REDUCTION. This section authorizes the Corps, at the request of a non-federal interest, to investigate measures to reduce the risk of tidal and inland flooding as part of an authorized feasibility study for coastal storm risk reduction projects.
SEC. 105. REMOVAL OF MAN-MADE OBSTRUCTION TO AQUATIC ECOSYSTEM RESTORATION PROJECTS. This section would authorize the Corps, at the request of the non-federal interest to consider removal of man-made obstructions within the scope of a project (with the consent of the structure owner) for purposes of increasing aquatic ecosystem restoration goals. The cost of such removal would be shared between the Corps and the non-federal interests as a construction cost.
SEC. 106. NATIONAL COASTAL MAPPING STUDY. This section directs the Corps to study and map coastal geographic land changes and identify improved tools and practices for coastal mapping. While coastal maps do exist through NOAA’s Digital Coast Initiative and USGS, the provision authorizes a demonstration project in NC to dig into potential hazards (debris, sedimentation, dredging efforts, and flood areas); identify best practices; evaluate and demonstrate relevant mapping technologies to differentiate between open coast and inland waters and demonstrate remote sensing tools for coastal mapping. $25 million is authorized for this section.
SEC. 107. PUBLIC RECREATIONAL AMENITIES IN ECOSYSTEM RESTORATION PROJECTS. This section authorizes the Corps, at the request of a non-federal interest, to consider the inclusion of recreational amenities (hiking, biking, walking, and waterborne recreation) into ecosystem restoration projects, if the incorporation of such amenities would be consistent with the ecosystem restoration purposes of the project.
SEC. 108. PRELIMINARY ANALYSIS. This section authorizes, at the request of the non-federal interest, a preliminary analysis phase prior to the beginning of a feasibility study to identify project scope, cost estimates, and potential project alternatives. This provision would have the effect of re-introducing the concept of a mini-reconnaissance analysis or study back into the Corps’ project planning and study process. The section also states that non-federal interests can request to incorporate natural- or natural-based features into flood risk management or hurricane and storm risk reduction projects. The cost of a preliminary analysis shall be at the federal government expense and not exceed $200,000.
SEC. 109. TECHNICAL ASSISTANCE. This section expands authority under the Planning Assistance to States program by including local governments; increases authorization levels from $15 million to $30 million and allows the Corps to waive the cost of such assistance to economically disadvantaged communities.
SEC. 110. CORPS OF ENGINEERS SUPPORT FOR UNDERSERVED COMMUNITIES; OUTREACH. This section directs the Corps to increase outreach to urban and rural economically disadvantaged communities and Indian Tribes on the Corps’ water resources development authorities, and to provide additional public resources for increased community engagement with Corps programs.
SEC. 111. PROJECT PLANNING ASSISTANCE. This section authorizes additional feasibility studies to receive assistance under section 118 of WRDA 2020. (Section 118 of WRDA 2020 authorized the Corps to establish and implement pilot programs to carry out feasibility studies for flood risk management and hurricane and storm damage risk reduction projects for rural communities and economically disadvantaged communities, in coordination with non-Federal interests.)
SEC. 112. MANAGED AQUIFER RECHARGE STUDY AND WORKING GROUP. This section authorizes the Corps, at federal expense, to study opportunities to carry out managed aquifer recharge projects at Corps projects to address drought, water resiliency, and aquifer depletion, and to create a working group to determine its efficacy. Under the bill, the working group members will have expertise in projects providing water supply storage to meet regional water supply demand, especially in regions experiencing drought; protection of groundwater supply, including promoting infiltration and increased recharge in groundwater basins, and groundwater quality; aquifer storage, recharge, and recovery wells; dams that provide recharge enhancement benefits; groundwater hydrology; and conjunctive use water systems.
SEC. 113. FLOOD EASEMENT DATABASE. This section directs the Corps to establish, maintain, and make public a database of flood and flowage easements held by the Corps or other federally held floodplain and flowage easements with respect to which other Federal agencies submit information to the Corps.
SEC. 114. ASSESSMENT OF CORPS OF ENGINEERS LEVEES. This section directs the Corps to periodically assess Corps-constructed levees (or levees for which the Corps has financial or operational responsibility, to identify opportunities, at federal expense, for the modification (including realignment or incorporation of natural and nature-based features) of levee systems to increase the flood risk reduction benefits of such systems; achieve greater flood resiliency; and restore hydrological and ecological connections with adjacent floodplains. In conducting such an assessment, the Corps is to prioritize levees associated with areas that have had flooding in recent years.
The Corps is also directed to make recommendations for any modifications through a report to Congress that includes: an estimate of the number of structures and population at risk and protected by the levee that would be adversely impacted if the levee fails or water levels exceed the height of the levee; the number of times the non-federal interest has received emergency flood-fighting or repair assistance under section 5 of the Act of August 18, 1941 (33 U.S.C. 701n) for the levee, and the total expenditures on post-flood repairs over the life of the levee; the functionality of the levee with regard to higher precipitation levels, including due to changing climatic conditions and extreme weather events; and the potential costs and benefits (including environmental benefits) from modifying the applicable levee system to restore connections with adjacent floodplains. Under the language, the Corps is instructed to coordinate with non-federal interests that have financial or operational responsibility of the levee being assessed.
The report to Congress shall include a description of any opportunities to modify the levee (including realignment or incorporation of natural- and nature-based features) and the benefits of incorporating such features. The bill authorizes $10 million for this effort.
SEC. 115. TECHNICAL ASSISTANCE FOR LEVEE INSPECTIONS. This section authorizes the Corps to provide credit or reimbursement to non-federal interests for costs associated with legally required electronic inspections for normally submerged features of flood control projects.
SEC. 116. ASSESSMENT OF CORPS OF ENGINEERS DAMS. This section directs the Corps to assess the status of all dams operated or maintained by the Corps to determine if any may be a priority for rehabilitation, retrofitting (such as for hydro power generation), or removal, and to incorporate the status into the National Dam Inventory. The Corps is also directed to submit a report to Congress on the results of the assessment.
SEC. 117. NATIONAL LOW-HEAD DAM INVENTORY. This section requires the Corps to establish, maintain, and make public an inventory of low-head dams around the Nation, in consultation with relevant federal and state agencies. The Senate’s WRDA bill has a similar provision.
SEC. 118. TRIBAL PARTNERSHIP PROGRAM. This section includes technical assistance (including planning assistance to address flood hazards) as an eligible use of the Tribal Partnership Program established under Section 203 of WRDA 2000 (33 U.S.C. 2269), which authorized the Corps to carry out water-related planning activities, or activities relating to the study, design, and construction of water resources development projects, that would benefit Indian tribes. The provision also reauthorizes the program through 2026.
SEC. 119. TRIBAL LIAISON. This section requires each Corps district that contains a Tribal community to create a position within that district to carry out the duties and serve as a Tribal liaison.
SEC. 121. COST SHARING PROVISIONS FOR THE TERRITORIES AND INDIAN TRIBES. This section authorizes certain indigenous people to participate under section 1156 of WRDA 1986 (which waived local cost-sharing requirements of up to $200,000 for all studies and projects in US territories and for specified tribes).
SEC. 122. SENSE OF CONGRESS ON COVID–19 IMPACTS TO COASTAL AND INLAND NAVIGATION. This section expresses the sense of Congress that the Corps take into consideration the impacts of the COVID-19 pandemic when determining eligibility for port funding. More specifically, the Corps should seek to maintain the eligibility of a donor port, energy transfer port, or medium-sized donor port (as defined in section 2106(a) of WRRDA 2014 that received funding in fiscal year 2020, but that would no longer be eligible for such funding as a result of a demonstrable impact on the calculations required by the definitions of a donor port, energy transfer port, or medium-sized donor port contained in such section due to a reduction in domestic cargo shipments related to the COVID–19 pandemic).
SEC. 123. ASSESSMENT OF REGIONAL CONFINED AQUATIC DISPOSAL FACILITIES. This section directs the Corps to assess the availability and need for confined disposal facilities for the disposal of contaminated dredged material. The Corps is instructed to consult with stakeholders on projects that may have contaminated sediments, solicit feedback from the North Atlantic Division on the need for confined aquatic disposal facilities, offer a public comment period, and submit a report to Congress.
SEC. 124. STRATEGIC PLAN ON BENEFICIAL USE OF DREDGED MATERIAL. This section directs the Corps to develop, and submit to Congress, a strategic plan for fully implementing the federal authority for maximizing the beneficial use of dredged material. The plan should identify opportunities and challenges relating to furthering the policy of maximizing the beneficial use of suitable dredged material obtained from the construction or operation and maintenance of water resources development projects.
SEC. 125. FUNDING TO REVIEW MITIGATION BANKING PROPOSALS FROM NON-FEDERAL PUBLIC ENTITIES. This section would amend section 214 of WRDA 2000 (33 U.S.C. 2352) to authorize non-federal public entities to contribute funds towards the review of a proposal for a mitigation bank. The Senate WRDA bill has a similar provision, except that the Senate bill would limit sales of credits to other public or private entities to 25% (which is concerning to some public entities, such as some ports, that would like to advance mitigation bank proposals). The House bill does NOT have such a restriction. (Under the House bill, a non-federal public entity seeking to expend funds to expedite the review of a proposal for a mitigation bank under section 214 may do so without regard to whether the entity plans to sell a portion of the credits generated by a mitigation bank instrument of the entity to other public or private entities, if the entity enters into an agreement with the Corps that requires the entity to use only for a public purpose any funds obtained from the sale of such credits).
SEC. 127. RESERVE COMPONENT TRAINING AT WATER RESOURCES DEVELOPMENT PROJECTS. This section authorizes units or members of the Armed Forces reserves to provide support to Corps programs (without reimbursement).
SEC. 128. PAYMENT OF PAY AND ALLOWANCES OF CERTAIN OFFICERS FROM APPROPRIATION FOR IMPROVEMENTS. This section authorizes warrant officers and enlisted members of the Armed Forces to support Corps civil works projects or programs, in addition to regular officers of the Corps of Engineers of the Army, and reserve officers of the Army who are assigned to the Corps of Engineers. The Senate WRDA bill has a similar provision.
SEC. 129. CIVIL WORKS RESEARCH, DEVELOPMENT, TESTING, AND EVALUATION. This section expands the basic research and development capabilities of the Corps to support its missions and authorities, including demonstration projects and coordination with other entities. The Senate WRDA bill has a somewhat similar provision.
TITLE II—STUDIES AND REPORTS
SEC. 201. AUTHORIZATION OF PROPOSED FEASIBILITY STUDIES. This section authorizes 72 new feasibility studies for future water resources development projects and eight feasibility studies for modification of existing water resources development projects. These feasibility studies were submitted in a Report to Congress on Future Water Resources Development pursuant to Section 7001 of the Water Resources Reform and Development Act of 2014 or were otherwise reviewed by Congress.
SEC. 202. EXPEDITED COMPLETION. This section directs the Corps to expedite the completion of 15 feasibility studies currently underway. Upon completion of the study, if the Corps determines that the project is justified, the Corps may proceed directly to preconstruction planning, engineering, and design. This section also directs the Corps to expedite the completion of the following reviews currently underway: two post-authorization change reports for existing projects, one ongoing watershed assessment, and two proposed feasibility determinations for navigation projects to be carried out by non-federal interests.
SEC. 203. EXPEDITED MODIFICATIONS OF EXISTING FEASIBILITY STUDIES. This section directs the Corps to expedite modifications to the scope or process of four feasibility studies currently underway.
SEC. 204. CORPS OF ENGINEERS RESERVOIR SEDIMENTATION ASSESSMENT. This section directs the Corps to assess at federal expense sedimentation issues and its impacts at reservoirs owned or operated by the Corps. The report shall include an estimation of the volume of sediment in the reservoir; an evaluation of the effects of the sediment in regard to the reservoirs storage capacity; any additional impacts the sediment may have on operations; impact the sediment may have upstream and downstream of reservoir over a 10 year period; identification of any sediment management plans and opportunities to (re)use the sediment nearby.
SEC. 205. ASSESSMENT OF IMPACTS FROM CHANGING OPERATION AND MAINTENANCE RESPONSIBILITIES. This section directs the Corps to submit a report to Congress on the costs and effects of increasing the depths at which operation and maintenance at a harbor or inland harbor is a federal responsibility. As part of this, the Corps is to conduct an assessment of the consequences of authorizing the operation and maintenance of navigation projects for harbors or inland harbors constructed by the Corps at 100 percent Federal cost to a depth of 55 feet or greater.
SEC. 206. REPORT AND RECOMMENDATIONS ON DREDGE CAPACITY. This section directs the Corps to submit a report to Congress on current public and private dredge capacity and availability to meet dredging needs nationwide. The section also expresses a sense of Congress that the Corps of Engineers should add additional dredging capacity if the addition of such capacity would enable the Corps to carry out water resources development projects in an efficient and cost-effective manner and be in the best interests of the Nation.
SEC. 207. MAINTENANCE DREDGING DATA. This section adds additional specification to a data point (related to Federal costs associated with the disposal of dredged material) required within the Corps’ maintenance dredging database.
SEC. 208. REPORT TO CONGRESS ON ECONOMIC VALUATION OF PRESERVATION OF OPEN SPACE, RECREATIONAL AREAS, AND HABITAT ASSOCIATED WITH PROJECT LANDS. This section directs the Corps to review existing policies for the valuation of preserving open space, recreational areas, and habitat as part of a water resources development project.
SEC. 223. WESTERN INFRASTRUCTURE STUDY. This section authorizes a comprehensive study at Corps owned, operated, or managed reservoirs in arid Western states to evaluate opportunities to improve water management, supply, and preparedness for changes in hydrological conditions, including the consideration of natural- and nature-based features. The Corps is instructed to consult with a wide range of stakeholders and non-federal interests on the study.
SEC. 224. REPORT ON SOCIALLY AND ECONOMICALLY DISADVANTAGED SMALL BUSINESS CONCERNS. This section directs the Corps to submit a report to Congress on contracts and subcontracts between the Corps and Small Disadvantaged Businesses.
SEC. 225. REPORT ON SOLAR ENERGY OPPORTUNITIES. This section directs the Corps to work with the Department of Energy to identify opportunities for integrating solar panels or floating solar at certain Corps projects and properties.
SEC. 226. ASSESSMENT OF COASTAL FLOODING MITIGATION MODELING AND TESTING CAPACITY. This section directs the Corps to submit a report to Congress on the Corps’ ability to model coastal flood mitigation systems and the effectiveness of the systems in preventing flood damage from storm surge.
SEC. 227. REPORT TO CONGRESS ON EASEMENTS RELATED TO WATER RESOURCES DEVELOPMENT PROJECTS. This section directs the Corps to review its policies and procedures related to the use of easements and to identify potential opportunities for increased use of such easements in future water resources development projects.
SEC. 228. ASSESSMENT OF FOREST, RANGELAND, AND WATERSHED RESTORATION SERVICES ON LANDS OWNED BY THE CORPS OF ENGINEERS. This section directs the Corps to assess the impacts of authorizing non-federal interests to provide certain forest, rangeland, and watershed restoration services through good neighbor agreements on Corps lands.
SEC. 230. GAO STUDIES ON MITIGATION. This section authorizes two GAO studies on mitigation activities and processes. The first study shall focus on the projects and activities to mitigate fish and wildlife losses resulting from the construction, or operation and maintenance, of an authorized water resources development project. The second study looks at the performance metrics for, compliance with, and adequacy in addressing project impacts of, potential mechanisms for fulfilling compensatory mitigation requirements through mitigation banks, in-lieu fee programs, and direct mitigation by permittees.
SEC. 231. STUDY ON WATERBORNE STATISTICS. This section authorizes a GAO review of the collection and quality of data associated with waterborne commerce.
TITLE III—DEAUTHORIZATIONS AND MODIFICATIONS
SEC. 301. DEAUTHORIZATION OF INACTIVE PROJECTS. This section establishes a process for the deauthorization of certain water resources development projects not yet initiated or appropriated.
SEC. 302. WATERSHED AND RIVER BASIN ASSESSMENTS. This section includes additional assessment purposes and locations for watershed-based studies under section 729 of the Water Resources Development Act of 1986.
SEC. 303. FORECAST-INFORMED RESERVOIR OPERATIONS. This section authorizes additional locations for forecast-informed reservoir operations at the Upper Missouri River Basin, the North Platte River Basin, or the Apalachicola Chattahoochee Flint River Basin.
SEC. 305. INVASIVE SPECIES. This section includes hydrilla under the Aquatic Invasive Species Research authority of section 1108 of the Water Resources Development Act of 2018 and adds additional water bodies around the Nation to the focus areas under the Harmful Algal Bloom Demonstration Program, pursuant to section 128 of the Water Resources Development Act of 2020.
SEC. 329. DEBRIS REMOVAL. This section includes ecosystem restoration as an authorized justification for debris removal.
SEC. 330. GENERAL REAUTHORIZATIONS. This section reauthorizes or extends authorizations for the following Corps’ authorities: Levee Safety Initiative; Transfer of Excess Credit; Rehabilitation of Existing Levees; Invasive Species in Alpine Lakes; and Environmental Banks.
SEC. 332. ENVIRONMENTAL INFRASTRUCTURE. This section modifies numerous existing authorizations for environmental infrastructure projects and provides authority to carry out additional environmental infrastructure projects.
SEC. 333. ADDITIONAL ASSISTANCE FOR CRITICAL PROJECTS. This section makes modifications to existing authorities for environmental infrastructure and environmental restoration.
TITLE IV—WATER RESOURCES INFRASTRUCTURE
SEC. 401. PROJECT AUTHORIZATIONS. This section authorizes 16 water resources projects that have completed technical review by the Corps and are recommended by the Chief of Engineers. The projects are authorized to be carried out in accordance with the plan, and subject to the conditions, described in the Chief’s Reports. The section also authorizes three modifications to previously authorized projects.
