NWC FEDERAL SPOTLIGHT (May 25, 2023)

 NWC members,

Please see several updates below on the latest developments in Congress and the administration. Latest bit of news on “Waters of the U.S.” The U.S. Supreme Court released their decision in Sackett v. EPA earlier today. While it will take a while to review, on initial read the Court appears to significantly limit WOTUS authority to “relatively permanent, standing or continuously flowing bodies of water.” Read more below in the Judicial Spotlight. Senator Tom Carper (D-Del.), chair of the Senate’s Environment and Public Works Committee announced earlier this week that he will not be running again. Otherwise, negotiations on the debt ceiling continue. Read more about it under our Congressional Spotlight. On the agency front, there are a number of grants and proposed rules coming down the pike—i.e. the Section 7001 portal was posted and the Principles, Requirements and Guidelines (PR&G) proposed rule was sent to the White House for review—read about it in our Federal Spotlight. Also we previewed a new section on “ask NWC members” in our April 25 Federal Spotlight. While there are no new questions, we do have open questions from that Federal Spotlight here. Finally, just a quick reminder that planning for NWC’s 2023 Annual Meeting in Sacramento, Calif. on Oct. 2-4, 2023, is well underway and both registration and the room block at the Sheraton Grand Sacramento is open.

As always, if you have any questions, please do not hesitate to reach out to us. Have a wonderful holiday weekend!

Julie

CONGRESSIONAL SPOTLIGHT

OVERVIEW. The House of Representatives (House) is in this week. The Senate is out through Memorial Day, although Senate leadership indicated that members may be called back for a vote if there is a debt ceiling agreement.

EVERYTHING YOU NEVER WANTED TO KNOW ABOUT THE DEBT CEILING.

State of play: We are now less than a week away from potentially breaching the nation’s debt ceiling without an agreement. Congressional and White House negotiators continue to meet and leaders on both sides of the aisle acknowledge that we must raise the debt ceiling. The question is how. The Democrats want a clean bill to strictly increase the debt ceiling, the Republicans want a measure that raises the debt ceiling with a promise of future spending cuts. Even if both sides can come to a deal this week, there is increasing concern whether there is enough time to get a deal through Congress, let alone whether there will be consensus among the members, by the June 1 deadline. According to House Speaker McCarthy, the House would need a minimum of 10 days to move the bill, which includes 72 hours for members to review the bill (although in recent days House leaders have walked the timeline back). Likewise, some democrats are raising significant objections about work requirements attached to some government poverty programs, as well as balking at spending cuts and caps.  Rumor has it that both sides are close to an agreement. But, this will be a careful balancing act for both Biden and McCarthy to get to the finish line, while keeping their respective caucuses onboard.

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. Currently, the debt ceiling is almost $31.4 trillion, and we are close to hitting it. Since January, the U.S. Treasury has been using what they call “extraordinary measures” to keep from defaulting, but Treasury can’t do this forever. The Treasury secretary has warned the White House and Congress that Treasury may not have enough funds beyond June 1 to meet its obligations. The U.S. is one of the few countries to have a debt ceiling. Created in 1917, the debt ceiling made it easier for Congress to fund WWI through different types of bonds. The U.S. has never defaulted on their debt so historians aren’t exactly sure what would happen except it would cause extreme uncertainty in both the national and international markets. It would also mean that federal programs (Social Security, Medicare, Veterans health), salaries (members of the military) and interest payments would not be made (at least temporarily). We would also likely see higher interest rates.

Why is it so controversial to raise the debt ceiling? It is not always controversial to raise the debt limit. According to the Congressional Research Service, since 1917 the debt limit has been modified 102 times, this includes 20 times since 2001. Historically, we have already raised the debt ceiling over 40 times since WWII, sometimes with spending caps, sometimes without. This year is a little different and tied to the House speaker race in January. One of the concessions was that leadership would not ask members to raise the debt ceiling without a ten-year balanced budget. Instead of a budget, the House passed a debt ceiling bill, the Limit, Save, Grow Act (H.R. 2811) several weeks ago. H.R. 2811 would raise the debt ceiling by $1.5 trillion with $4.8 trillion in budget cuts over 10 years. While the bill is a non-starter in the Senate, McCarthy is using the bill as a basis for negotiations.

Issues on the table: Significant spending cuts from 2-10 years, revenue (tax) increases, rescission of COVID-19 funds, permitting reform for energy projects, tighter work requirements for Medicare and welfare benefits. Other issues could be laid on the table as well. Both President Biden and House Speaker McCarthy are balancing on a tightrope during these negotiations. Check out this Washington Post article to learn more.

Likely outcomes: We are hearing that any final agreement will likely include spending caps, although for how much and how long is another question. The final bill will also likely include permitting reform for energy projects and a rescission of COVID-19 funds.

Additional Resources:

BUDGET/APPROPRIATIONS NEWS. Since any debt ceiling agreement is expected to include fiscal constraints for FY2024 (and potentially future fiscal years), appropriations work in both the House and Senate has been paused until after the debt ceiling agreement is implemented. Originally, both the House and Senate appropriations committees were on track to vet and approve FY2024 appropriations bills this month.

PERMITTING REFORM GAINS TRACTION. As indicated earlier, permitting reform for energy projects is heating up on Capitol Hill, although the devil is in the details. Numerous bills have been introduced with different concepts. Republican bills generally favor permitting streamlining for traditional energy projects (oil, gas, coal and other fossil fuels). Democrats would like to see the process streamlined for renewable and clean energy projects and high voltage transmission lines. There seems to be general agreement that there needs to a timeline for reviews, although disagreement on the length.

T&I HELD HEARING ON THE FUTURE OF THE CLEAN WATER ACT. On May 16, the House Transportation and Infrastructure Committee’s Water Resources and the Environment Subcommittee held a hearing on “The Next Fifty Years of the Clean WAter Act: Examining the Law and Infrastructure Project Completion.” According to the Subcommittee chair, the intent was to hear perspectives on how the Clean Water Act can be modernized and focused on two major CWA permitting programs: Section 402, the National Pollutant Discharge Elimination System (NPDES) program and Section 404, the dredge and fill permit program. To read witness testimonies or to watch the hearing, click here.

JUDICIAL SPOTLIGHT

 U.S. SUPREME COURT RELEASES RULING IN SACKETT V. EPA, NARROWING THE SCOPE OF WOTUS. On May 25, the U.S. Supreme Court released their long-awaited decision in Sackett v. EPA, a case that has run for nearly two decades on the scope of “Waters of the U.S.” in the Clean Water Act. While we are still reading and analyzing the straightforward yet nuanced decision, we can pull out some high-level comments from the court. Interesting enough, all 9 justices agreed in the court’s judgement reversing the Ninth Circuit decision (which found the CWA covers wetlands with an ecologically “significant nexus” to traditional navigable waters), ), as well as ruling against the use of the “Significant Nexus” test. However, there was a 5-4 split on the court’s test and reasoning on determining wetland jurisdiction under the CWA (see third bullet below).

High level summary of court’s majority opinion (authored by Justice Alito):

  • Court says Rapanos plurality decision is correct: WOTUS includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic(al) features (i.e. streams, oceans, rivers, and lakes).
  • Court acknowledges that, while the CWA extends to more than traditional navigable waters, there is a limit.
  • WOTUS does include some wetlands, but not all. Wetlands adjacent to a WOTUS (i.e., wetlands that are “as a practical matter indistinguishable from” a WOTUS, such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins”) are considered a WOTUS. But wetlands that are separate (i.e., where there is a “clear demarcation”) from traditional navigable waters cannot be considered a WOTUS, even if they are located nearby.
  • Since the CWA doesn’t mention the “significant nexus text” as defined under Rapanos, EPA does not have the statutory authority to impose it.
  • EPA’s interpretations of the concepts “significant nexus” and “similarly situated” are unclear and too broad.

The Supreme Court’s Sackett opinion further muddies the waters regarding how EPA and the Army Corps of Engineers will move forward with WOTUS and the future implementation of the CWA, what comes next for the Biden Administration’s rule, which is currently in effect in a little less than half of the states (the other states are under the 1986 WOTUS definitions).  Considering that the Agencies have a WOTUS rule that is inconsistent with the Supreme Court’s opinion, the Agencies will need to revise the rule, and possibly issue some interim guidance in the meantime.

FEDERAL AGENCY SPOTLIGHT

U.S ENVIRONMENTAL PROTECTION AGENCY (EPA)

  • EPA OPENS GREAT LAKES ENVIRONMENTAL JUSTICE GRANT PROGRAM (Applications due August 11, 2023).  On May 10, the U.S. Environmental Protection Agency (EPA) announced the availability of $30 million from the Bipartisan Infrastructure Law for restoration projects that advance environmental justice in underserved and overburdened communities across the Great Lakes. Called the Great Lakes Environmental Justice Grant Program, EPA is making available up to $30 million for recipients to “develop, implement, and oversee grant issuance and management programs focused on environmental restoration and protection projects for which Great Lakes underserved communities seek funding.” Qualifying non-profit organizations, institutions of higher learning (i.e., colleges and universities, including minority-serving institutions), state agencies, interstate agencies, federally recognized Indian Tribes and tribal organizations, and local governments are eligible to apply as principal recipients. To learn more, click here.

FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

  • FY2024 PLANNING FOR DAM EMERGENCIES (Applications due June 30). FEMA is offering a Collaborative Technical Assistance (CTA) series to help communities at risk of dam-related flooding to better understand their risk landscape and the potential consequences of dam-related emergencies. The CTA will include planning for emergencies related to operational discharges or dam-related infrastructure failure. If you are interested in joining the program, please join one of FEMA’s information webinars or submit an application (see below). Click here to view the FY24 Dam Emergencies CTA Application. The application will close on Friday, June 30.

The FY24 Informational Webinars will be held on the following dates and will all be virtual: Monday, May 23 at 1 p.m. ET AND Tuesday, May 30 at 2 p.m. ET. To register for the FY24 Informational webinars, please email Alesia Za Gara.

  • FY2023 REGIONAL CATASTROPHIC PREPAREDNESS GRANT PROGRAM (Applications due July 24, 2023 by 5pm ET). FEMA released the funding notice for the Fiscal Year 2023 Regional Catastrophic Preparedness Grant Program. The program provides $12 million to eligible states and local governments to close known preparedness capability gaps, encourage innovative regional solutions to issues related to catastrophic incidents, and build on existing regional preparedness efforts. The purpose of the Regional Catastrophic Preparedness Grant Program is to build regional capacity to manage catastrophic incidents by improving and expanding collaboration for catastrophic incident preparedness. The National Response Framework (4th edition, 2019) defines a catastrophic incident as any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage or disruption severely affecting the population, infrastructure, environment, economy, national morale or government functions. Housing was added as a strategic priority for this grant program in 2023 to accompany equity, climate resilience and readiness. Priority will also be given to projects that address the needs of disadvantaged communities that might be at special risk as a result of current and/or future hazards, including those associated with climate change. This priority is guided by the Justice40 Initiative, which commits the federal government to delivering 40% of the overall benefits of climate and other federal investments to disadvantaged communities that have been historically marginalized, underserved and overburdened by pollution. Awards will be made on a competitive basis to applicants who present an ability to successfully meet the requirements described in the funding notice. The application period will remain open until 5 p.m. ET on July 24. Submissions must be made through Grants.gov. The Notice of Funding Opportunity is available on Grants.gov as well as on FEMA.gov.
  • FEMA UPDATES RESILIENCE ANALYSIS AND PLANNING TOOL (RAPT). The Resilience Analysis and Planning Tool (RAPT) is a free, no-login required online web map that makes everyone a geographic information system (GIS) analyst. RAPT gives everyone access to data and GIS mapping to understand potential challenges to resilience in each community, county, state and tribe. The more recent RAPT update includes the latest data from the U.S Census Bureau, an updated FEMA Community Resilience Challenges Index and a curated add-in data layer list. RAPT includes community characteristics with preloaded layers that display: population challenges to resilience – this includes 22 individual indicators of resilience and a single Community Resilience Index value for counties and census tracts; hazard and risk – such as real-time flood gauges, live radar, active wildfires, annualized expected losses from the National Risk Index and more; infrastructure – schools, places of worship, electric lines, wastewater facilities, etc.; equity – race and ethnicity data, broadband access, languages spoken in the home and more;  and future climate – three sea level rise scenarios and easy import of forecasted climate data from the Climate Risk and Resilience Portal (ClimRR). FEMA will host community of practice webinars for RAPT users. Register in advance to learn more. Thursday, May 18, noon-1pm ET, Tuesday, May 23, 5-6pm ET, and Thursday, June 2, 2-3pm ET. To learn more about RAPT, including additional tools to prepare ahead of hurricane season, visit Tools for Practitioners | FEMA.gov.

U.S. ARMY CORPS OF ENGINERS (USACE/CORPS)

  • FINAL RULE ON CORPS WIFIA PROGRAM RELEASED. On May 22, the U.S. Army Corps of Engineers (USACE/Corps) published the final rule for “Credit Assistance and Related Fees for Water Resources Infrastructure Projects” in the Federal Register. This rule sets the process by which the Corps will administer this program, often referred to as the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA). Under the Corps WIFIA program (known as the Corps Water Infrastructure Financing Program, aka CWIFP), credit assistance is available for safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of state, local government, public utility, or private. USCE said in the coming weeks they will be publishing a Notice of Funding Availability in the Federal Register to solicit preliminary applications from prospective borrowers. USACE will be offering webinars on June 15, June 29 and July 20 that detail this financing program. Information on these webinars will be released soon. To stay up-to-date on the program, learn more here.
  • INLAND WATERWAYS USER BOARD; REQUEST FOR NOMINATIONS (Nominations due by June 15, 2023). On May 15, the Department of the Army announced it was taking nominations to serve on the U.S. Army Corps of Engineers (USACE) Inland Waterways Users Board (“the Board” or IWUB). The Board provides independent advice and recommendations to the Secretary of the Army and the Congress on the inland waterways and to make funding recommendations for the Inland Waterways Trust Fund (Fund). This notice is to solicit nominations for seven (7) appointments or more for terms that will begin by January 31, 2024. For more information or for information on how to apply, click here.
  • PR&G MOVES ANOTHER STEP FORWARD. Earlier this week, a notice was released by the Office of Information and Regulatory Affairs that they have received a proposed rule on “USACE implementing Procedures for Principles, Requirements, and Guidelines Applicable to Actions Involving Investment in Water Resources. Under Executive Order 12866, OIRA has up to 90 days (which can be extended) to review proposed rules. Principles, Requirements and Guidelines, also known as PR&G, was originally authorized in WRDA 2007 to change how the Corps formulates and evaluates studies for major water resource projects, essentially updating their current 1983 Principles and Guidelines. The proposed rule is expected to be released this summer.
  • SECTION 7001 PORTAL OPENS (Applications due Aug. 28, 2023). The Section 7001 portal has recently opened. The Section 7001 process allows non-federal interests to request new federal water research projects (navigation, flooding, levees, dams, beach renourishment, etc.) via this process for potential inclusion in future Water Resource Development Acts. The final Section 7001 report will note all proposals submitted, including whether they are related to the mission and authorities of the U.S. Army Corps of Engineers civil works portfolio; require specific congressional authorization; have not been congressionally authorized; have not been included in the main table of a previous annual report; and if authorized, could be carried out by the Corps.

Section 7001 is an annual report submitted by the Secretary of the Army to Congress which identifies completed feasibility reports, new feasibility studies and proposed project modifications for potential congressional authorization.  The report also includes proposals for authorization from non-Federal interests for proposed feasibility studies and proposed modifications that require Congressional authorization for the Corps of Engineers to proceed.

Go here to learn more about how to prepare and submit a proposal.

  • WRDA 2020 IMPLEMENTATION. According to Corps leadership, the agency has determined that ten provisions in the Water Resources Development Act of 2022 (WRDA 2022/P.L. 117-263) will need further written guidance.

The sections are:

  1. Section 8102. Emergency response to natural disasters.
  2. Section 8106. Scope of feasibility studies.
  3. Section 8108. Managed aquifer recharge study and working group.
  4. Section 8114. Cost sharing provisions for the territories and Indian Tribes.
  5. Section 8149. Use of other Federal funds.
  6. Section 8151. Materials, services, and funds for repair, restoration, or rehabilitation for certain public recreation facilities.
  7. Section 8154. Temporary relocation assistance pilot program.
  8. Section 8155. Continuation of construction.
  9. Section 8156. Federal interest determination.
  10. Section 8160. Civil works research and development.

U.S. COAST GUARD:

  • NATIONAL MARITIME SECURITY ADVISORY COMMITTEE VIRTUAL MEETING (June 5, 2023). The National Maritime Security Advisory Committee (Committee) will meet virtually on Monday, June 5, 2023 from 1pm–2:30pm EDT to review and discuss matters relating to national maritime security, including enhancing the sharing of information related to cybersecurity risks that may cause a transportation security incident, between relevant Federal agencies and State, local, and tribal governments; relevant public safety and emergency response agencies; relevant law enforcement and security organizations; maritime industry; port owners and operators, and; terminal owners and operators. The virtual meeting will be open to the public. Pre-registration is required for attending the virtual meeting through Mr. Ryan Owens at ryan.f.owens@uscg.mil. To read the Federal Register notice, click here.
  • NATIONAL NAVIGATION SAFETY ADVISORY COMMITTEE VIRTUAL MEETING (June 23, 2023). The National Navigation Safety Advisory Committee (Committee) will meet virtually on Friday June 23, 2023 from 1pm—2:30pm ET to review and discuss matters relating to maritime collisions, rammings, and groundings; Inland Rules of the Road; International Rules of the Road; navigation regulations and equipment; routing measures; marine information; and aids to navigation systems. The virtual meeting will be open to the public. Pre-registration is required for the virtual meeting through George.H.Detweiler@uscg.mil.

U.S. FISH AND WILDLIFE SERVICE

  • REVISED MITIGATION POLICY AND ENDANGERED SPECIES ACT COMPENSATORY MITIGATION POLICY PUBLISHED. On May 15, the U.S. Fish and Wildlife Service (FWS) published in the Federal Register a revision of its Mitigation Policy and Endangered Species Act (ESA) Compensatory Mitigation Policy. The FR notice states that the revised Mitigation Policy establishes fundamental mitigation principles and provides a framework for applying a landscape-scale approach to achieve, through application of the mitigation hierarchy, no net loss of resources and their values, services, and functions resulting from proposed actions. The notice goes on to state that the “purpose of the ESA Compensatory Mitigation Policy is to provide guidance to Service personnel as they seek to mitigate losses to endangered and threatened species and their habitats resulting from proposed a It covers all compensatory mitigation mechanisms, including, but not limited to, proponent-responsible mitigation, conservation banking, and in-lieu fee programs, and all species and habitats protected under the ESA for which the Service has jurisdiction. The revised Mitigation Policy is available at https://www.fws.gov/​policy/​a1501fw2.pdf. The revised ESA Compensatory Mitigation Policy is available at https://www.fws.gov/​policy/​a1501fw3.pdf. In addition, both policies are available at https://www.regulations.gov in Docket No. FWS–HQ–ES–2021–0014.

NWC EVENT SPOTLIGHT

2023 ANNUAL MEETING (OCT. 2-4, 2023)—REGISTRATION IS OPEN. NWC, get excited to meet face-to-face and dig into the water and waterways resource challenges and opportunities facing the nation at our NWC Annual Meeting in Sacramento, California on October 2-4, 2023. Registration is open.  A   block of rooms have been reserved at $239 (plus applicable taxes) per night, for all conference attendees. This rate will be available until September 18, 2023 or until rooms are sold-out in the block, whichever comes first. Click here to make a hotel reservation.