NWC Federal Spotlight (April 14, 2023)

Good morning NWC world,

It’s been a while since we’ve put out a Federal Spotlight but that is going to change. There is so much happening (or going to happen) on both the legislative and regulatory front in our nation’s capital!

First off, a shout out to our two newest members –Northern Grain Belt Ports and the Gulf Coast Protection District! You can read all about them in NWC’s New Member Spotlight. If you have a minute, please be sure to say “hi.”

Congress is out this week but returns next week. Before they left town, both the House and Senate successfully passed a bill to halt Biden’s “Waters of the U.S.” (WOTUS) rule which was almost immediately vetoed by the president. Round Two on WOTUS will occur when Congress returns. Additionally, Congress will face looming challenges, many tied to the nation hitting our debt ceiling this summer, as well as FY2024 appropriations. Read more about Congress in our Congressional Spotlight.

Speaking of WOTUS, there has been some movement on the legal front, although we are still waiting for the U.S. Supreme Court decision in Sackett v. EPA. Hint: This is starting to look like a throw back to Obama’s WOTUS rule when half of the states followed one definition and the other half were under a different definition. Want to know more? Check out our Judicial Spotlight.

From the federal government standpoint, the administration has been busy. In the Federal Agency Spotlight, you can read about the White House’s proposal to revamp the rulemaking process, available water funding, opportunity to comment on National Levee Safety Program (be sure to check out our webinar with USACE (password: TeA8FKhZ),  and the release of the Section 408 report and more.

Finally, in the NWC Spotlight section, learn how to get involved with NWC’s federal policy issues and announcements about upcoming NWC meetings.

As always, have a wonderful day and if you have any questions, please reach out.

Julie

NEW MEMBER SPOTLIGHT

NWC WELCOMES NEW MEMBER, NORTHERN GRAIN BELT PORTS!  The Northern Grain Belt Ports (NGBP) is the newest of the four Corn Belt Port Regions. The NGBP is centered on the I-90 crossing of the Upper Mississippi River and includes the historic inland port cities of La Crosse and Prairie du Chien in Wisconsin, and the ports of Red Wing, Wabasha, and Winona in Minnesota. It includes seven counties in Wisconsin and four counties in Minnesota. The NGBP works closely with the separate ports and terminals in the Minneapolis-St. Paul urban area to advance common regional goals. The NGBP was approved as a Port Statistical Area in 2022. For more information, visit cornbeltports.com.

NWC WELCOMES NEW MEMBER, GULF COAST PROTECTION DISTRICT!  The Gulf Coast Protection District (GCPD) was created in 2021 by the 87th regular Texas Legislature to become the non-federal sponsor of the Sabine Pass to Galveston Bay Coastal Storm Risk Management (S2G) and Coastal Texas Protection and Restoration Feasibility (Coastal Texas) studies, known together as the Coastal Barrier. The GCPD contains approximately 5,220 square miles of land covering Chambers, Galveston, Harris, Jefferson and Orange counties. Upon completion of construction, the GCPD will operate and maintain these improvements in conjunction with local jurisdictions. GCPD Mission: To protect Texas Gulf Coast communities, the environment, and economic activity from storm surge. For more information, visit https://www.gcpdtexas.com.

CONGRESSIONAL SPOTLIGHT

CONGRESSIONAL OVERVIEW. Congress is out this week until April 17 for Easter break. They got some stuff down before they left town but there are a number of deal breakers facing them when they return, including aviation and farm bill reauthorizations, nominations, FY2024 appropriations and the debt ceiling. And once they return, they will be in session the last two weeks of the month. In the short term, the House GOP, which currently holds a narrow nine-seat margin in an increasingly divided caucus, kicked off Biden administration probes. Some of the bills House leaders had planned to do got shelved after push back. But they were able to do an energy bill, also known as Lower Energy Costs Act (HR 1), before they left town. The measure provides for the exploration, development, importation, and exportation of energy resources and sets forth provisions to expediate permitting for energy projects. While H.R. 1 is dead on arrival in the Senate, it may jumpstart some permitting reform discussions down the road. In fact, we are hearing that Senate committees plan to hold hearings on permitting for energy projects in the next several weeks. In the Senate where Democrats control 51 seats to the Republicans 49, they have been focusing on nominations. As with the past Congress, due to the tight 2 seat margin in the Senate, Democrats are going to need to cut deals with the Republicans to meet the 60 vote threshold in the chamber. That means that Democrats will need Republican support to advance any must-pass bills like appropriations and to address the debt ceiling.

DEBT CEILING. The debt ceiling is one of the biggest political fights of the year. Until it is resolved, it may hang over almost all of the large federal policy discussions, including appropriations. 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, and will run out of money by summer/early fall. It is generally acknowledged on both sides of the aisle that it would be a bad idea to default. Historically, we have already raised the debt ceiling a number of times since WWII. Democrats want a clean measure to increase or suspend the debt limit but Republicans want significant concessions to limit federal spending in both the short- and the long-term, which is opposed by Democrats. House Speaker Kevin McCarthy (R-Calif.) has requested several meetings with the White House to discuss. The White House has asked to see the Republican’s plan to balance the budget which has not been provided yet. However, rumor has it that House Republicans may release legislation next week to postpone the debt ceiling until May 2024, which may push the issue into fall of 2024 with Treasury’s extraordinary measures. Furthermore, the legislation is expected to include spending cuts and regulatory changes that may provide a basis for negotiations. How this will play out is anyone’s guess and Congress and the administration only have a few months to resolve this. How it plays out may impact both short- and long-term funding for water and waterways resource infrastructure in the appropriations process.

FY2024 APPROPRIATIONS. Speaking of appropriations, President Biden’s budget request, a wish list of their funding priorities for the year, was sent to Congress on March 9. While typically dead on arrival on Capitol Hill, the president’s budget essentially jump starts the next fiscal year activities on Capitol Hill. Already we have seen a number of oversight hearings where congressional committees have invited agency officials to come and justify their agency budgets. The House Appropriations Energy and Water Subcommittee held an oversight hearing on March 29 on the president’s budget request for the U.S. Army Corps of Engineers and the Bureau of Reclamation (click here to see NWC’s high-level summary on USACE’s budget request). You might remember that NWC highlighted in their high-level summary that USACE’s budget request provided “0” for the Inland Waterways Trust Fund. When asked during the budget briefing, USACE leaders indicated it was a capacity issue. But during the hearing, General Spellmon clarified that USACE has $400 million in capability this year with $140 million to come out of IWTF. To watch the hearing or read testimony from the Honorable Michael Conner, Assistant Secretary of the Army for Civil Works; Lieutenant General Scott Spellmon, USACE Chief of Engineers and Commanding General; or the Honorable Camille Touton, Commissioner, Bureau of Reclamation, click here.

HOUSE & SENATE PASS BILL TO OVERTURN NEW WOTUS RULES/BIDEN VETOS. Before Congress left town, both the House and Senate successfully passed H.R. Res. 27 which would overturn Biden’s new WOTUS definition using the Congressional Review Act (CRA). Under CRA, Congress can strike down regulations within 60 days of final issuance. The bill now heads back to Congress for consideration. However, to override the President’s veto, both chambers need 2/3rds of their respective chamber to vote for the bill. At this point, neither the House nor the Senate have the votes to override the veto. To read more about what is happening in the WOTUS realm with court cases and background, be sure to check out our Judicial Spotlight below.

Upcoming hearings of interest:

JUDICIAL SPOTLIGHT

DISTRICT COURT. JUDGE RULES NEW WOTUS DEFINITION INVALID IN 24 STATES, BRINGS STATE COUNT TO 26. On April 12, a federal judge in the U.S. District Court for the District of North Dakota ordered a preliminary injunction to halt implementation of Biden’s new definition for “Waters of the U.S.” (WOTUS) in 24 states. These 24 states (Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming) join Idaho and Texas who were previously granted an injunction in March. These 26 states will operate under the 1986 WOTUS definitions for the near future. The North Dakota court decision is part of a larger fight to have the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency withdraw the rule. Concurrently, or parallel, to these court cases last fall the U.S. Supreme Court heard oral arguments in Sackett v. EPA which asked the court to determine the limits of federal authority over wetlands and other waterways. This case will be decided by this summer and may impact the scope of the new WOTUS definition. The term WOTUS has been around since the 1899 Rivers and Harbors Act but in 1972 was added to the Clean Water Act to differentiate between which waters are regulated at the state versus federal level. In recent years, due to several controversial Supreme Court decisions, the WOTUS definition has become increasingly murky, leading to confusion in the field about what is and is not a WOTUS. The past several administrations have attempted to redefine WOTUS but have run into legal challenges. During the Trump administration, they rewrote the WOTUS rule finalized under the Obama administration, however, that rule ran into legal challenges. In August 2021, Trump’s Navigable Waters Protection Rule was struck down by a federal district court in Arizona. In response, the EPA and USACE reverted to their previous 1986 definition (with amendments) as they worked to rewrite the definition. Earlier this year, the administration released a final WOTUS definition that would rewrite the 1986 regulations. This definition became effective on March 20. NWC submitted substantial comments on the proposal to replace the 1986 regulations (Feb. 2022). In NWC’s comments, we raised significant concerns with two underpinnings of the new definition for adjacency and significant nexus.

Resources:

FEDERAL AGENCY SPOTLIGHT

ADMINISTRATION. ADMINISTRATION PROPOSES TO MODIFY THE REGULATORY PROCESS (Comments due June 6, 2023). Last Friday, President Biden released the “Executive Order on Modernizing Regulatory Review” to update the current regulatory process as laid out under Executive Order (EO) 12866 on Regulatory Planning and Review (Sept. 30, 1993), EO 13563 on Improving Regulation and Regulatory Review (Jan. 18, 2011) and Biden’s Presidential Memorandum on Modernizing Regulatory Review (Jan. 20, 2021).  Executive Orders (EOs) are presidential directives that have the force of law behind them. The new EO 14094 proposes several major changes including raising the review trigger for “significant regulatory action” from $100 million to $200 million and above or is deemed to “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities,” as well as how costs and benefits are calculated. Second, it sets a higher standard for Office of Information and Regulatory Affairs (OIRA) consideration. Under current rules, OIRA is required to review all regulations that have a “significant regulatory action.” Additionally, as part of this process, the Office of Management and Budget is inviting public comments on the revised Circular A-4 on regulatory analysis which guides the regulatory process in federal agencies. As part of OMB’s review, they are asking a series of questions they would like the public to review in the OMB preamble to Circular A-4.  Comments for both the EC 14094 and the Circular A-4 changes are due by June 6, 2023.

Resources:

ASACW/USACE. ASACW RELEASES DEFINITION FOR ECONOMICALLY DISADVANTAGED COMMUNITIES. On March 28, Assistant Secretary of the Army (Civil Works) Michael Connor approved guidance on the definition of economically disadvantaged communities. This sets the stage for the U.S. Army Corps of Engineers (Corps) to move forward with pilot programs and other provisions that referenced this term in the Water Resources Development Act of 2020 (WRDA 2020/ P.L. 116-260 (passed in the Consolidated Appropriations Act, 2021)). Now that the Corps has finalized the definition, they can move forward with other program guidance in WRDA 2022 (thanks Julie Minerva for sections!): Sec. 118 Pilot programs on the formulation of Corps of Engineers projects in rural communities and economically disadvantaged communities.  Implementation guidance is forthcoming and will be posted here.  Relevant WRDA 2020 bill text can be viewed here starting on page 35; Sec. 160 Definition of economically disadvantaged communities  Relevant WRDA 2020 bill text can be viewed here starting on page 130. Implementation guidance can be found here; and the Sec. 165 Continuing authority programs.   Implementation guidance is forthcoming and will be posted here.  Relevant WRDA 2020 bill text can be viewed here starting on page 138. Under Connor’s memo, it states that the definition of “economically disadvantaged community” applies to all WRDA 2020 provisions, including future WRDA provisions. The memo also states that an economically disadvantaged community is defined as meeting one or more of the following: Low per capita income: The area has a per capita income of 80 percent or less of the national average; Unemployment rate above national average: The area has an unemployment rate that is, for the most recent 24-month period for which data is available, at least 1 percent greater than the national average unemployment rate;  Indian country as defined in 18 U.S. 1151 or in the proximity of an Alaska Native Village; U.S. Territories; or Communities identified as disadvantaged by the Council on Environmental Quality’s Climate and Economic Justice Screening Tool.

CISA/USACE. Marine Transportation Resilience Assessment Guide RELEASED. Last month, the Cybersecurity and Infrastructure Security Agency (CISA) and the U.S. Army Corps of Engineers, Engineer Research and Development Center (USACE-ERDC) released the co-developed Marine Transportation System Resilience Assessment Guide (MTS Guide) for use by federal agencies, local governments, and industry decision makers that manage risk and enhance resilience to critical infrastructure systems and functions through conducting resilience assessments. The MTS Guide provides a consistent, repeatable process for conducting uniform assessments of the resilience of the complicated systems that comprise the Marine Transportation System (MTS). The MTS Guide provides advice for assembling the diverse group of public and private stakeholders and agencies that manage these systems; provides a framework for conducting resilience assessments; and provides a variety of resources to support resilience assessments. The goal of the guide is to build closer relationships between stakeholders and partners who may not traditionally be involved in a port resilience assessment, produce a holistic understanding of system vulnerabilities and functions, expand awareness of the dependencies and interdependencies within a specific port system, and identify practices or investments that can enhance resilience and inform risk mitigation decision-making. For more information or to access the guide, click here.

EPA. EPA MOVES FORWARD WITH POTENTIAL REGULATIONS ON PFAS (Comments due June 12, 2023). On April 13, the U.S. Environmental Protection Agency (EPA) published an Advanced Notice of Proposed Rulemaking (ANPR) on “Addressing Per- and Polyfluoroalkyl Substances in the Environment.” This potential rulemaking follows another proposed rule from last year “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances.” The ANPR asks whether EPA should consider regulating seven other PFAS chemicals as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA/Superfund). EPA is soliciting information relevant to whether these compounds may present substantial danger to public health or welfare or the environment. An agency that is in the preliminary stages of rulemaking may publish an ANPR in the Federal Register to get more information from the public. If EPA decides to move forward with designating additional PFAS compounds as hazardous substances under CERCLA, the agency will publish a proposed rule and seek further public comment.

Resources:

FEMA. FEMA IS ACCEPTING REVOLVING LOAN FUND APPLICATIONS (Due April 28, 2023).   FEMA is accepting applications to the Safeguarding Tomorrow Revolving Loan Fund grant program. Loans will be available to help local governments satisfy non-federal cost share requirements under FEMA Hazard Mitigation Assistance programs, update the adoption and enforcement of building codes and make zoning and land use changes. The program has been expanded to give 20 federally recognized tribal nations and insular areas the same eligibility to apply as states, the District of Columbia and Puerto Rico. As defined by the Safeguarding Tomorrow through Ongoing Risk Mitigation (STORM) Act, insular areas are American Samoa, Guam, Northern Mariana Islands and U.S. Virgin Islands. The funding notice is available at Grants.gov. Eligible entities must apply for funding using the Non-Disaster (ND) Grants Management System (ND Grants). Applications must be received by 3 p.m. ET on April 28. Visit FEMA.gov for more information.

FEMA. FEMA Releases Updated Guide to Help Communities with Resilience Grants Process. FEMA released updated and consolidated guidance to help grant applicants successfully navigate its mitigation grant programs to enhance climate resiliency. Following a multi-year effort and robust community engagement, FEMA updated the “Hazard Mitigation Assistance Program and Policy Guide” to reduce complexities and increase stakeholder accessibility to resilience grant programs. This is the first update to the guide since 2015. The update now incorporates: climate change and future conditions; building codes; capability and capacity building; nature-based solutions; community lifelines as key principles for grant programs; and building Resilient Infrastructure and Communities (BRIC), a new program created since the last version was released. State, local, tribal and territorial governments can use the guide to help them through the Hazard Mitigation Assistance grant lifecycle process. FEMA’s mitigation grant programs provide funding for actions that address risks to and reduce disaster suffering from events like wildfires, drought, extreme heat, hurricanes, earthquakes and flooding. FEMA remains focused on further simplifying its programs and processes to help the whole community become more climate resilient. This updated guide aligns with FEMA’s people first initiative, reduces program complexities to help catalyze community partnerships and promote equitable investments to reduce risk. In addition to BRIC, other programs included in the Hazard Mitigation Assistance Guide are the Flood Mitigation Assistance program, the Hazard Mitigation Grant Program and the Hazard Mitigation Grant Program Post Fire. Several of these programs have seen historic levels of funding in 2021 and 2022. FEMA will offer several webinars and developed materials that offer more information about the updated guide. Anyone interested in attending may register here. A video is also available on FEMA’s YouTube channel explaining the guide. For more information about the guide update visit FEMA.gov.

HUD. Floodplain Management and Protection of Wetlands; Minimum Property Standards for Flood Hazard Exposure; Building to the Federal Flood Risk Management Standard (Comments due May 23, 2023). On March 24, the U.S. Department of Housing and Urban Development (HUD) published in the Federal Register a proposed rule that would revise HUD’s regulations governing floodplain management and the protection of wetlands to implement the Federal Flood Risk Management Standard (FFRMS). Among other revisions, the rule would provide a process for determining the FFRMS Floodplain that would establish a preference for the climate-informed science approach (CISA), and it would revise HUD’s floodplain and wetland regulations to streamline them, improve overall clarity, and modernize standards. This proposed rule would also revise HUD’s Minimum Property Standards for one-to-four unit housing under HUD mortgage insurance and under low-rent public housing programs to require that the lowest floor in both newly constructed and substantially improved structures located within the 1-percent-annual-chance (100-year) floodplain be built at least 2 feet above the base flood elevation as determined by best available information, and it would revise a categorical exclusion when HUD performs environmental reviews, and update various HUD environmental regulations to permit online posting of public notices. The public comment period closes on May 23, 2023. For more information, click here.

USDA/NRCS. Urban Agriculture and Innovative Production Advisory Committee Meeting (Tuesday, April 18, virtual). The Natural Resources Conservation Service (NRCS) will hold a public meeting of the Urban Agriculture and Innovative Production Advisory Committee (UAIPAC). UAIPAC will reconvene to continue the discussion of the interim recommendations for the Secretary of Agriculture on the development of policies and outreach relating to urban, indoor, and other emerging agriculture production practices. UAIPAC is authorized under the Agriculture Improvement Act of 2018 (2018 Farm Bill) and operates in compliance with the Federal Advisory Committee Act, as amended. Pre-registration is required to attend the UAIPAC meeting and access information will be provided to registered individuals via email. Registration details can be found at: https://www.usda.gov/partnerships/federal-advisory-committee-urban-ag. For more information, click here.

USACE/FEMA. NATIONAL LEVEE SAFETY PROGRAM, PHASE 2 KICKS OFF/NWC HOSTED WEBINAR (Comments due June 30, 2023). The U.S. Army Corps of Engineers (Corps) and the Federal Emergency Management Agency (EPA) launched their next phase for stakeholder involvement in the National Levee Safety Program (NLSP). The National Levee Safety Program (NLSP) was established in 2007 by the U.S. Congress to improve the safety and reliability of levees across the country. Through the NLSP, the US Army Corps of Engineers work with state and local governments, levee owners, and other stakeholders to assess the safety of levees and identify potential risks. The program also provides technical assistance, training, and education to improve the design, construction, operation, and management of levees. The program has three phases of stakeholder input to understand the needs of stakeholders, provide opportunities for meaningful input to shape decisions and outcomes on program design, components, and products; and, ensure that the unique challenges related to levees faced by disadvantaged communities and tribes are well understood and incorporated into solutions.   Comments on Phase 2 NLSP are due by June 30, 2023.

Resources:

  • To learn more about the program and the scope of the effort, read NWC’s March 22 News Alert here.
  • On April 3, NWC hosted a webinar with USACE and FEMA to outline the scope of this effort. To watch the webinar, click here (password: TeA8FKhZ)
  • To view NWC’s comments on the NLSP Phase 1, click here.

USACE.  SECTION 408 LISTENING SESSIONS REPORT RELEASED. USACE has continued to review the consistency and efficiency of the Section 408 program nationwide since the first national policy memorandum documenting Section 408 procedures was published in 2006. Under Sect. 408, sponsors and stakeholders must get permission for any activity that impacts/involves a USACE civil works project (i.e.. needing 408 permission to site utility lines on or near the civil works infrastructure) In the summer of 2022, USACE sought feedback from stakeholders with an interest in the Section 408 program. USACE hosted a series of eight virtual listening sessions, six for the public and two for USACE staff, to understand stakeholders’ experiences with the program as well as opportunities for future adjustments. The original schedule included four public sessions, however two additional public sessions were added in September due to significant interest. Stakeholders were also able to submit feedback by email. The listening sessions were attended by 427 stakeholders representing state and local government, federal agencies, industry, universities, and non-profits. USACE staff listening sessions were attended by 134 USACE team members representing 35 districts. NWC participated in these sessions and submitted substantial comments about the future of the Section 408 program.

Resources:

  • Summer 2022 Listening Session Series Summary Report (download).
  • Summer 2022 Listening Session Series Presentation (download).
  • Summer 2022 Listening Session Series Fact Sheet (download).
  • To view NWC’s comments on potential changes to the Section 408 program, click here.

NWC SPOTLIGHT

NWC CONCLUDES SUCCESSFUL 2023 LEGISLATIVE SUMMIT. On behalf of NWC, a huge thanks for those of you who were able to join us for NWC’s 2023 Legislative Summit in Washington, DC on March 6-8, 2023! It was a rousing success! A huge thanks to our partners and sponsors—we couldn’t have done the meeting without you! If you did not attend the meeting but are interested in the available PowerPoints, be sure to check out the recap of the Legislative Summit here.

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. Our first meeting was last Wednesday and we will have a follow up meeting the first week in May (date/time TBD). If you are interested in participating in this effort, shoot Julie Ufner an email at julie@waterways.org.