NWC Federal Spotlight (April 25, 2023)

NWC members and friends,

First, a warm welcome to our newest member, Zone 7 Water Agency! Read more about them under our New Member Spotlight. Welcome abroad!

Second, at member request we are adding a new section (at least temporarily) where members can ask (and answer) questions of each other. Why are we doing this? While our members may represent different industries within the water and waterways world, they often face the same challenges and opportunities, yet rarely can talk except at meetings to share, learn and yes, even commiserate. As part of our new website rollout in the coming months, we do plan to offer a listserv for members to share questions and/or announcements, but in the meantime, below are several questions from members that I have received. If you have had a similar experience and/or have a solution you’d like to share, just click on the link offered below each question in our Have a question? NWC members have answers spotlight.

Then, we can’t forget our Congressional Spotlight where the spotlight remains on the debt ceiling which we could hit as early as this June. House Republicans introduced their wish-list bill last week and plan to vote on it this week if they have the votes. To learn more, check out our Congressional Spotlight. 

Under our Federal Agency Spotlight there are a number of agency actions, reports and grants to report.

Finally, under NWC Spotlight, you can learn about all of the upcoming NWC meetings and events.

As always, if you have any questions, please do not hesitate to reach out to us.

Julie

NEW MEMBER SPOTLIGHT

NWC WELCOMES NEW MEMBER ZONE 7 WATER AGENCY! Zone 7 Water Agency (Zone 7) is a dependent special district established under the Alameda County Flood Control and Water Conservation District Act of 1949. After extensive flooding in 1955, the residents of Dublin, Livermore, and Pleasanton, California voted to approve the creation of the Agency and its seven-member Board of Directors, which would be responsible for water resource management and flood protection for the approximately 425 square mile area. Since that time, water service has been added for a portion of San Ramon, California in adjacent Contra Costa County and Zone 7 has assumed the role of the local Groundwater Sustainability Agency. Zone 7 owns 37 miles of flood protection channels and acts as the wholesale water supplier to approximately 266,000 residents. For more information see www.Zone7water.com.

HAVE A QUESTION? NWC MEMBERS HAVE ANSWERS

QUESTION 1: ARE SECTION 408 PROGRAM PERMISSIONS ONLY RELEVANT FOR MODIFICATIONS OR DO THEY APPLY TO MAINTENANCE DREDGING AS WELL?

This region needs emergency maintenance dredging due to unexpected or unanticipated increased shoaling along navigation route. The NWC member has the means and expertise to dredge the federal navigation channel when the USACE cannot or will not due to funding or lack of staff. In this district, one funded and scheduled project has already been delayed and more delays are anticipated. While the member does not have a general permit for projects in the channel (not from a lack of effort), the member is trying to assist USACE in their mission to keep this channel operational. The latest impediment to this situation is now the USACE Regulatory is saying that the NWC member will need to undergo the Section 408 review process for MAINTENACE dredging of the congressionally authorized project. The NWC member has argued that Section 408 is ONLY meant for alternations, modifications, etc. to the federal project and NOT for maintenance dredging but has gotten pushback from the district. The member wants to know whether any other members are having similar issues. Are other members are having similar issues with Section 408 being required for routine dredging maintenance projects? If yes, where and what and what have you done to address the problem?

  • To answer Section 408 emergency dredging question, click here.

QUESTION 2: LOCAL GOVERNMENT REQUIREMENTS ON FLOODWAYS/DREDGING PROJECTS.  

Are you aware of any situations where a port was trying to dredge an area that has previously been dredged but running up against a City or County requiring a hydrological and hydraulic (H&H) analysis in order for that City of County to approve a permit to comply with some FEMA Floodplain Management requirement to show that the dredging and placement won’t affect a floodway? (The floodway is not behind a levee system). The City won’t waive the requirement for the H&H. It is requiring a rural port to pay for this analysis to prove dredging and placement won’t affect the floodway so that the City won’t lose its flood insurance under 44 CFR 59.1. Do NWC members have any examples they can share or ideas on how to work through?

  • To answer local government requirements on floodways/dredging projects, click here.

QUESTION 3: GETTING REIMBURSEMENT FROM USACE ON BBA.

One NWC member was told their project would be receiving BBA funds through USACE to reimburse the member for project costs, however, it has been very difficult for the member to get the reimbursement. The member wants to know whether other NWC members have had challenges getting the BBA funds, and if so, how did they successfully navigate the process?

  • To answer getting reimbursement from USACE on BBA, click here.

CONGRESSIONAL SPOTLIGHT

OVERVIEW. Both the House and Senate will be in session this week. In the House, leaders have scheduled a vote on the Limit, Save, Grow Act, a bill to address the debt ceiling. The House Rules Committee is scheduled to mark up the bill later today with a potential floor vote as early as Wednesday. In the Senate, there is much committee and nominations work going on, although Sen. Dianne Feinstein’s (D-Calif.) and Sen. Jon Fetterman’s (D-Pa.) continued absences from health and mental health issues has complicated Senate floor votes where Democrats hold a very narrow majority of 51-49. Additionally, Minority Leader Mitch McConnell (R-Ky) who has been out since last month due to a concussion, is scheduled to return. Up until the next two-week break in June, one or both of the chambers will be in session. The next three months before the August recess will be fast and furious as well. Each chamber has a host of priorities with only a short time to finish them.

HOUSE REPUBLICANS RELEASE MEASURE TO EXTEND DEBT CEILING/VOTE THIS WEEK. On April 19, House Republicans introduced a measure to raise the debt ceiling by $1.47 trillion until March 31, 2024. The bill, the Limit, Save, Grow Act of 2023, contains a number of Republican priorities including a repeal of certain clean energy credits included in the Inflation Reduction Act and Covid-19 funds. Additionally, the bill would limit discretionary spending levels in appropriations bills to FY2022 levels, which is $130 billion below FY2023. While the bill is dead on arrival with the White House and Congressional Democrats who want a clean debt limit increase, House leadership plans to hold a House vote this week, as early as tomorrow. At this point, it is uncertain whether leadership has the 218 votes needed to pass the package with their tight majority. That means that House Speaker Kevin McCarthy (R-Calif.) can only afford to lose a handful of votes and still pass the bill. McCarthy has indicated that if this bill passes, he plans to use the language as a starting point for negotiations with the White House. To date, neither McCarthy nor President Biden have met to discuss the debt ceiling. President Biden has requested that Republicans release a 10-year budget with proposed cuts which could serve as a basis for negotiations. However, with the narrow margin in the House, there is significant disagreement on the scope of a 10-year budget proposal. What is the debt ceiling? It is the total amount of money that the U.S. government is authorized to borrow to meet its existing legal obligations, which include social security and Medicare benefits, military salaries, interest on national debt and more. While we have already hit our debt ceiling, the US treasury is using what they call “extraordinary measures” to keep from defaulting, but they can’t do this forever. According to Goldmans Sachs Group Inc, the federal government could run out of money as early as this June. U.S Treasury is expected to give an update within the next week, based on recent tax receipts, on when they estimate the U.S. could default on its $31.4 billion debt ceiling.

BUDGET/APPROPRIATIONS NEWS.  Last month, President Biden kicked off the FY2024 appropriations process by the release of his wish list for the new fiscal year starting on Oct. 1. This release unleashed a series of oversight hearings on both the House and Senate sides with agency officials who explained and defended the President’s budget request. The next stage of the process is usually a budget resolution which sets top-line numbers in the appropriations process. However, as indicated in past Federal Spotlights, it may be very difficult for House Republicans to agree on top-line budget numbers due to disagreements over funding levels. Instead, House leaders are considering setting top-line allocation numbers to drive the appropriations process. One possible number being thrown around is a $1.47 trillion spending cap, the same as under the Republican debt ceiling bill. This would be a $131 billion cut under FY2023 funding levels. Whatever top-line number is chosen, House Appropriation Chair Kay Granger (R-Texas) would be tasked with determining the allocated amounts for defense and non-defense spending before dividing the allocated amounts among the 12 appropriation bill subcommittees. While it is unknown when the actual work on FY2023 will start in the chambers, the current fiscal year ends on September 30. Either FY2024 funding must be in place or Congress will need to pass a Continuing Resolution to extend FY2023 to a date further down the road.

WOTUS VETO OVERRIDE FALLS SHORT IN HOUSE. On April 18, the House of Representatives fell short in votes to override President Biden’s veto on the new “Waters of the U.S.” (WOTUS) definition in the Clean Water Act (CWA) by a vote of 227-196. Ten House Democrats voted with the Republicans to overturn the veto—Reps. Sanford D. Bishop Jr. (D-Ga.), Jim Costa (D-Calif.), Angie Craig (D-Minn.), Henry Cuellar (D-Texas), Don Davis (D-N.C.), Jared Golden (D-Maine), Vicente Gonzalez (D-Texas), Susie Lee (D-Nev.), Jimmy Panetta (D-Calif.), and David Scott (D-Ga.). The new WOTUS definition was finalized at the end of last year and went into effect last month. Earlier in the month, both the House and Senate successfully passed a Congressional Review Act measure that would overturn the new rule. Shortly afterwards, President Biden vetoed the package, sending it back to Congress. Under veto rules, the chambers must successfully (re)pass the measure with a 2/3rds vote margin. While the veto vote failed, the new WOTUS definition faces significant legal challenges. Currently, 26 states have a temporary injunction against the 2023 rule and follow the 1986 regulations. This count does not include Kentucky, who on April 20 was granted a brief stay until May 10.  Concurrently, the Supreme Court is deliberating a related case, Sackett v. EPA, on the scope of jurisdiction in the CWA, which may impact the new rule. This case is expected to be decided by early summer.

HOUSE TRANSPORTATION AND INFRASTRUCTURE (T&I) COMMITTEE OUTLINES 2023 PRIORITIES. During a Members Day hearing on April 18, House T&I Chairman Sam Graves (R-Mo) stressed the committee has a busy agenda for the rest of the year. High on the committee’s priorities include working on aviation and pipeline safety, as well as pass a Coast Guard authorization bill,  address supply chain “challenges and bottlenecks and start work on the Water Resources Development Act of 2024. To read Graves statement, click here or click here for more information about the April 18 member day hearing.

COMMITTEE INTRODUCES COAST GUARD AUTHORIZATION BILL/MARKUP SCHEDULED. On April 20, the leaders of the Transportation and Infrastructure Committee and the Coast Guard and Maritime Transportation Subcommittee introduced bipartisan legislation to strengthen, support, and authorize funding for the United States Coast Guard. The Coast Guard Authorization Act of 2023 authorizes appropriations for the Service for the next two fiscal years at fiscal year 2023 levels, plus inflation.  These authorizations will support Coast Guard operations and enable the Service to continue to recapitalize its historically underfunded cutter fleet, shoreside facilities, and IT capabilities. The T&I committee plans to mark up this bill on April 26. Learn more below under Congressional Markups/Hearings of Interest. 

Congressional Markups/Hearings of Interest:

FEDERAL AGENCY SPOTLIGHT

ADMINISTRATION. BIDEN SIGNS NEW EXECUTIVE ORDER ON ENVIRONMENTAL JUSTICE. On April 21, President Biden signed an Executive Order (EO) on Revitalizing Our Nation’s Commitment to Environmental Justice for All, which instructs all federal agencies to make environmental justice a key component within their missions. According to a White House fact sheet, the new EO will make a deeper commitment to disadvantaged communities by informing them of cumulative impacts of toxic releases and commits to increased engagement. As part of the EO, the White House also formed a new office within the White House’s Council on Environmental Quality (CEQ) to focus on environmental justice issues. The Office of Environmental Justice will focus on coordinating environmental justice activities and actions across all federal agencies.

DOT/FHA. PROTECT GRANT PROGRAM OPENS (Applications close August 18, 2023). On April 21, the Department of Transportation’s (DOT) Federal Highway Administration (FHA) opened the application portal to its Promoting Resilient Operations for Transformative, Efficient, and Cost-Saving Transportation (PROTECT) Program which funds projects that address the climate crisis by improving the resilience of the surface transportation system, including highways, public transportation, ports, and intercity passenger rail. According to the grant opportunity, the purpose of the PROTECT Formula and Discretionary Grant programs is to plan for and strengthen surface transportation to be more resilient to natural hazards, including climate change, sea level rise, flooding, extreme weather events, and other natural disasters through formula and competitive discretionary grants. Up to $848 million is available for this grant cycle. The FHA will be holding several webinars in May to on the Notice of Funding Opportunity. To learn more about the webinars, click here.

DOI/RECLAMATION. BUREAU OF RECLAMATION RELEASES CLIMATE CHANGE ADAPTION STRATEGY. On April 20, the Department of the Interior’s (DOI) Bureau of Reclamation (Reclamation) released its Climate Change Adaption Strategy to address the impacts of climate change. In a news release, Reclamation highlights four overarching goals: 1). Increase water management flexibility; 2). Enhance climate adaptation planning; 3). Improve infrastructure resilience and 4). Expand information sharing. You can read the entire Climate Change Adaptation Strategy at www.usbr.gov/climate.

EPA. EPA ANNOUNCES NEW AGREMENT ON CHESAPEAKE BAY. Last week, the U.S. Environmental Protection Agency (EPA) announced it had reached a draft agreement with the several Bay states and environmental groups on ongoing pollution into the Chesapeake Bay region. Under the proposed agreement, which is includes a 30-day public comment period, the EPA would commit to address agriculture and stormwater runoff from rural, suburban and urban areas. The settlement came about after several lawsuits were filed in 2020 arguing that EPA wasn’t doing enough to make sure that Pennsylvania was in compliance with the Chesapeake Bay Watershed Agreement, originally signed in 2014, by the six states in the watershed. In the agreement, the states committed to reducing the Total Daily Maximum Load (TMDL) for nitrogen, phosphorus and sediment numbers in the watershed to improve water quality. In a 2018 midpoint review, EPA noted that Pennsylvania was behind on addressing agriculture and suburban and urban runoff due to funding challenges.

FMC. National Shipper Advisory Committee May 2023 Meeting (May 11, 2023, 1pm—4pm ET). The Federal Maritime Commission (FMC) will hold a National Shipper Advisory Committee meeting on May 11, 2023 from 1:00pm—4:00pm ET. The National Shipper Advisory Committee is a federal advisory committee that provides information, insight, and expertise pertaining to conditions in the ocean freight delivery system to the FMA Commission. Specifically, the Committee advises FMC on policies relating to the competitiveness, reliability, integrity, and fairness of the international ocean freight delivery system. During this meeting, the Committee will receive an update from each of its subcommittees. The Committee may receive proposals for recommendations to the Federal Maritime Commission and may vote on these recommendations. Any proposed recommendations will be available for the public to view in advance of the meeting on the NSAC’s website, https://www.fmc.gov/industry-oversight/national-shipper-advisory-committee/. To learn more about the meeting which is available for viewing remotely, click here.

OMB. OMB ISSUES MEMO TO FEDERAL AGENCIES TO BRING BACK EMPLOYEES TO OFFICE. In an April 13 memo to federal agencies, Shalanda Young, Office of Management and Budget (OMB) Director, instructed federal agencies to update their work plans. As part of the work plan, agencies are asked to assess how and when they will bring more people back to the physical office space “while still using flexible operational policies as an important tool in talent recruitment and retention.” Under the memo, agencies have 150 days to send the updated plans to OMB. What is OMB? OMB is an extension of the presidential office. It assists the President of the U.S. the preparation of the President’s budget request annually and also oversees the effectiveness of federal agencies, their programs, policies and procedures.

NWC SPOTLIGHT 

REGISTRATION FOR NWC’S 2023 ANNUAL MEETING OPENING LATER THIS MONTH (October 2-4, 2023). Get ready NWC, registration for our 2023 Annual Meeting in Sacramento, Calif. will open later this month Find out the latest info here!

INTERESTED IN FEDERAL POLICY ISSUES? NWC’s Legislative Policy Committee (LPC) is accepting members. The LPC is NWC’s primary arbitrator on federal policy positions. The committee meets once a month on the first Thursday of the month at 4pm ET to discuss federal regulatory and legislative happenings and meets at NWC’s Legislative Summit and Annual Meeting as needed. Format: there is always a federal legislative/regulatory update; caucus chairs may give caucus updates; before we open the floor to general discussion and intel from the membership. LPC is open to all interested NWC members. Interested in learning more or joining? Email Julie Ufner at julie@waterways.org to be added to the monthly calendar invites.

CONCERNED OVER LEVEE ISSUES? NWC just created a Levee working group in response to USACE implementing Phase 2 of the National Levee Safety Program (read above here). NWC is participating in the webinars and is writing comments. That is where you come in. The Levee Working Group will share intel on the face-to-face meetings and virtual engagements. Together we will determine the scope of NWC comments and flesh out any outstanding issues. If you are interested in participating in this effort, shoot Julie Ufner an email at julie@waterways.org.