NWC Federal Spotlight (Dec. 8, 2022)

NWC Federal Spotlight (December 8, 2022)

Good afternoon NWC,

We have great news! Earlier today, the U.S. House of Representatives (House) passed the revised Water Resources Development Act of 2022 (WRDA 2022) and Coast Guard authorization as part of the must-pass annual National Defense Authorization Act (NDAA). More about that is below under the Congressional Spotlight section.

Additionally, you may want to check out a new list we are compiling a draft list on the “status of federal rules and regulations.” If there is a federal action coming down the pike that you think NWC needs to keep an eye on in the water/waterways realm, let me know and we can add it to our WATCH LIST.

Finally, we have been asked when registration will open for NWC’s 2023 Legislative Summit on March 6-8, 2023, in Washington, DC. Keep your eyes peeled in the next several weeks!

As always, if you have any questions, comments or ideas, please do not hesitate to reach out to me.

Best,
Julie Ufner, NWC

*Please excuse any typos or errors.

CONGRESSIONAL SPOTLIGHT

OVERVIEW. Both the U.S. Senate and House are in session this week. This afternoon, the House passed its compromised NDAA bill, which included revised WRDA 2022 and Coast Guard Authorization. The vote was originally expected yesterday but ran into a snag after the Congressional Black Caucus insisted that NDAA include voting rights language. Speaker Pelosi changed the parliamentary procedure to bring up NDAA today under suspension of the rules which requires a 2/3 vote for passage. NDAA passed by a vote of 350-80 and now heads back to the Senate for consideration.

House Minority Leader Kevin McCarthy (R-Calif.) continues to deal with a fractious Republican caucus weeks before the 118^th Congress starts. We know of four Republicans who publicly stated they will vote against his bid for House Speaker on Jan. 3, 2023, in the 118^th Congress. At this point, he can only afford to lose four votes. And McCarthy has a challenger for Speaker, Rep. Andy Biggs (R-Ariz.). Additionally, the House Steering Committee which makes committee membership and leadership decisions has decided to postpone chair appointments in contested chair races. Subcommittee chairs are expected to be announced in early Jan. Furthermore, Georgia concluded their U.S. Senate election on Dec. 6 (Warnock won). This means that Democrats will have a 51-29 split in the 118^th Congress which will result in committee changes, with likely Democrats holding more seats on each committee. Finally, the House released its 2023 legislative business calendar here.

NATIONAL DEFENSE AUTHORIZATION ACT. Tuesday evening, the House introduced compromise language for NDAA (also called the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023). The bill was passed today. Considered a must-pass bill, NDAA is an annual authorization bill that includes funding and policies for federal defense agencies, including the U.S. Department of Defense, U.S. Coast Guard, Maritime Administration, and others. Additionally, the text includes included the House-Senate compromise on the Water Resources Development Act of 2022 (more below under the WRDA 2022 section). The bill authorizes $857.9 billion in FY2023 for federal defense programs; this is $45 billion more than requested in the President’s budget. The Coast Guard provision of the bill includes $14.5 billion in authorization for FY2023. Most notably, as recently noted in press reports, NDAA does not include Senator Joe Manchin’s (D-WV) proposal to streamline the federal permitting process for energy and renewable energy projects. The bill now heads to the Senate for review.

According to summaries, high-level NDAA provisions of interest to NWC members include, but are not limited to:

Marine Highway Program receives $15 million for FY2023, an increase of $4 million over FY2022.
Small Shipyards Program gets $30 million for FY23 for small shipyards assistance, an increase of $10 million above the FY22 enacted amounts.
Port Infrastructure Development Program (PIDP) would be authorized at $750 million in FY2023, an increase of $515.7 million. This provision also grants a one-year extension to allow passenger vessel terminals to be eligible for Port Infrastructure Development grants for shore power.
New grant program for maritime training is authorized through the Maritime Centers of Excellence for mariner and maritime labor.
Changes to the Jones Act waiver process which would require waivers on a vessel specific basis (instead of a on a blanket basis) and new conditions for granting waivers.
PFAS: Implements a phase-out of per- and polyfluoroalkyl substances (PFAS) containing Fire Fighter Turn-out gear.
Promotes better understanding of Great Lakes, Oceans, Bays and Estuaries: Directs the National Oceanic and Atmospheric Administration (NOAA) to create, maintain, and regularly update a publicly available website that provides links and information about all resiliency grant programs administered by NOAA.
Marine Mammal Conservation: Provides for conservation programs that harness technology to reduce ocean noise, monitor marine mammals and help vessels avoid them, and improve technology for marine mammal conservation. Establishes a Puget Sound cetacean desk for monitoring and conserving whales in the Puget Sound. Establishes a competitive grant program for ports and other entities to fund projects to mitigate seaport and vessel traffic-related impacts to marine mammal populations.
Marine Mammal Resource and Response: The bill creates a “Marine Mammal Health Monitoring and Analysis Platform” (Health MAP) to collect and report data about the death of marine mammals, promoting interdisciplinary research, facilitating communication, and improving collaboration among scientists and observation networks.
Ocean Exploration: Provides statutory authority for the National Ocean Mapping, Exploration, and Characterization Council and revises several programs at NOAA that support ocean and coastal mapping, hydrographic surveys, and spatial data collection.
Regional Ocean Partnerships: Authorizes Federal support for regional ocean partnerships (ROPs) by directing the Secretary of Commerce to establish new ROPs on request from the governor of a coastal state, and establishes procedures and requirements for designation and governance of ROPs

Resources:

Click here to read the NDAA bill in its entirety.
Click here to read a summary of NDAA.
Click here to read the FY23 NDAA House Natural Resources Committee provisions.
Click here to read the FY23 NDAA House Homeland Security provisions.
Click here to read WRDA 2022, U.S. Coast Guard and federal emergency management provisions.

WATER RESOURCES DEVELOPMENT ACT (WRDA). Passed as part of NDAA included the Water Resources Development Act bill, a biennial bill that authorizes studies, projects and policy changes for the U.S. Army Corps of Engineers. WRDA is only the FIRST STEP of a TWO STEP process to get studies and projects funded. Both the House and the Senate passed their versions earlier this year and, in July, the chambers moved to an informal conference committee to work out the differences between the two bills. Bill text was released on Dec. 6 as part of NDAA and is shown below. NDAA with the WRDA provisions now heads to the Senate for review.

To read NWC’s high-level summary of the WRDA provisions, click here.
Click here to see WRDA portion of bill
Click here to see the WRDA 2022 compromise summary
Click here to see the House-Senate WRDA 2022 press release

FY2023 APPROPRIATIONS. On FY23 appropriations, there has been no movement. The current continuing resolution to keep the federal government is scheduled to end on Dec. 16. The challenge is that top-line numbers for defense and domestic spending have not been set. The funding level is likely to be around $1.7 trillion and according to Senator Richard Shelby (R-Ala.), a senator involved in the discussions, lawmakers are about $26 billion apart. At this point, it is expected that Congress will have to pass another CR for one week to give appropriators additional time. Additionally complicating the effort but widely supported, the White House has requested $38 billion in the CR/final omnibus package for a number of priorities including border security and funds for the 2024 presidential election. Some Republicans are suggesting that the CR should go into 2023, however, this is not universally supported since Republicans will be dealing with a number of tough issues in 2023.

Congressional hearings of interest this week:

Promoting Sustainable Environmental Practices Through Trade Policy (Wednesday, Dec. 14 at 9:30am EST). House Ways and Means Committee, Trade Subcommittee.

FEDERAL AGENCY SPOTLIGHT

ALL AGENCIES. STATUS OF FEDERAL RULES, MEMOS AND GUIDANCES. Next on NWC’s list is to create a spreadsheet of pending rules and regulations we are tracking and/or commenting on. Until that is finished, below is a status of some of the rules we are tracking, along with any NWC documentation.

AGENCY	RULE	BACKGROUND	TIMING/COMMENTS	RESOURCES
ASACW	ASACW/NOAA memo on ESA consultations on existing structures	On January 5, 2022, the Assistant Secretary of the Army (Civil Works) signed a “Memorandum Between the Department of the Army (Civil Works) and the National Oceanic and Atmospheric Administration” on the process the agencies would use nationally for Endangered Species Act review for maintenance and other projects.	Effective immediately, however, the agencies are still working out how the new policies will be implemented nationally and associated impacts. NWC, and other groups, raised concerns that this policy, which did not go through public review, would increase costs and delays for water resource projects.	NWC fact sheet on Jan. 5 environmental baseline memo. Joint comment letter on Jan. 5 memo. ASACW/NOAA Jan. 5, 2022 memo
ASACW	Principles, Requirements and Guidelines (PR&G) Implementation NPRM, Expected in 2023.	PR&G would update the current 1983 Principles and Guidelines (P&G) which only has to show national economic development and environmental quality impacts. PR&G allows the Corps to consider a broader array of items for how USACE formulates and evaluates studies for major water resources projects. P&G was included in WRDA 2007 but never implemented at USACE due to concerns from stakeholders and non-federal partners on how it would be implemented, by valuing environmental benefits over economic benefits.	The Assistant Secretary for the Army (Civil Works) (ASACW) took pre-comments on PR&G in August 2022. In our Aug. 2022 comments, NWC urged USACE to reaffirm Congressional intent that all benefits must be weighed equally.	NWC submitted detailed comments on PR&G Congressional Research Service Report on “Principles, Requirements and Guidelines for Federal Investments in Water Resources” (March 2017)
EPA/USACE	Revised Definition of “Waters of the United States	Waters of the U.S. is a term used in the Clean Water Act to differentiate between what waters are regulated at the federal versus the state level. In the past two decades, there have been several Supreme Court cases that have muddied the water on what should be jurisdiction. Every administration since Obama has tried to rewrite the definition unsuccessfully. Biden’s administration is currently working on a rule. Concurrently, this fall, the Supreme Court heard arguments in Sackett v. EPA, in a related case. A decision is expected early next year.	In Dec. 2021, EPA and USACE published a proposed rule on the Revised Definition of “Waters of the United States.”	NWC’s Feb. 2022 comments on the proposed “Waters of the U.S. rule.
FEMA	Updates to Floodplain Management and Protection of Wetlands Regulations NPRM, March 2023	FEMA plans to incorporate Federal Flood Risk Management Standards (FFRMS) for floodplain and flood elevation requirements for federally funded projects.	NWC previously raised concerns with FFRMS
FEMA	Updates to the National Flood Insurance Program/Incorporation of Endangered Species Act considerations	On October 12, 2021, the Federal Emergency Management Agency published a request for information on potential changes to the National Flood Insurance Program, including incorporation of endangered species considerations into NFIP decisions. In the request, FEMA asks for comments on if, and how, NFIP should be changed, and examples on how they could include endangered species and habitat into NFIP plans and programs		NWC submitted joint comments
USACE	Update to Levee Design Manual (EM 1110-2-1913): Expected final, Dec. 2022	The Corps is proposing updates to its guidance for evaluating, designing, and constructing levees, Engineer Manual (EM) 1110-2-1913 – Evaluation, Design, and Construction of Levees. The Corps has informally made the draft updated manual available to the public for review. The Corps originally requested feedback from the public by September 1, 2022, but informally extended the feedback submission period by 60 days, to the end of October 2022.	NWC expressed serious concerns with the proposed changes to historical design manual standards and procedures that have worked for a number of years. Additionally, the proposed design manual moves toward a risk-based approach which would substantially revise the levee design, construction and evaluation process, which will have a significant impact on both the levee systems and the communities they serve.	To see NWC’s Oct. 2022 comments, click here.
USACE	Revision of USACE’s Section 408 process NPRM, expected in 2023.	Section 408 is derived from Section 14 of the Rivers and Harbors Appropriations Act of 1899 which gives the Secretary of the Army authority to grant permission to non-federal entities to do permanent or temporary alteration of any Corps Civil Works project. Under 408, the Corps certifies that the alteration will not impair the usefulness of the project or is injurious to the public interest. Earlier this year, USACE undertook a series of public listening sessions on the Sec. 408 process.	A notice of proposed rulemaking was expected in Jan. 2023, however, we’ve been told that the schedule has slipped since the proposed rule is still going through the internal review process. NWC’s letter gave feedback on what is working and not working within the 408 program and offered recommendations for how the Corps can improve the program	Click here to read NWC’s Sept. 2022 comment letter or here to read our May 2022 letter on Sec. 408.
USACE	Natural Disaster Procedures: Preparedness, Response and Recovery Activities of the Corps of Engineers (PL 84-99)	On November 15, the U.S. Army Corps of Engineers announced a proposed rule on “Natural Disaster Procedures: Preparedness, Response and Recovery Activities of the Corps of Engineers” which would potentially change how the P.L. 84-99 program is operated. According to the proposed rule, USACE is moving toward a risk-informed approach for the Rehabilitation Program and proposes to repeal and replace the current P.L. 84-99 rule.	NWC has convened a working group to draft a letter on potential impacts of the proposed rule. Comments are due Jan. 17, 2023.

EPA. EPA RELEASES MEMO TO STATES ON PFAS MANAGEMENT. On Dec. 5, the U.S. Environmental Protection Agency (EPA) released a memorandum, “Addressing PFAS Discharges in National Pollution Discharge Elimination System (NPDES) Permits and Through the Pretreatment Program and Monitoring Programs” on how states can align their NPDES permit program with per- and polyfluoroalkyl substances (PFAS) pollution risks. PFAS is a category of chemicals used widely in consumer products (stain resistant clothing, Teflon pots and pans, carpeting, firefighting foam, etc.), some of which pose a potential risk to human populations in drinking water supplies. To read the PFAS memo, click here or to read the press release, click here.

USACE. USACE PROPOSES RULE ON PL 84-99 (Public comments due on January 17, 2023/LISTENING SESSIONS AVAILABLE). On November 15, the U.S. Army Corps of Engineers announced a proposed rule on “Natural Disaster Procedures: Preparedness, Response and Recovery Activities of the Corps of Engineers” which would potentially change how the P.L. 84-99 program is operated. According to the proposed rule, USACE is moving toward a risk-informed approach for the Rehabilitation Program and proposes to repeal and replace the current P.L. 84-99 rule.

NWC will be analyzing this proposed rule, including its impact on flooding and levee districts, as part of our P.L. 84-99 work group. If you would be interested in serving on this group, please let Julie Ufner know. To see the proposed rule, click here.

Additionally, USACE is offering nine upcoming face-to-face regional stakeholder workshops (four of which have already happened) to discuss the proposed rule. Additional virtual sessions may be scheduled in January.

Nov. 29, 2022: Kansas City, MO
Dec. 1, 2022: Fort Worth, TX
Dec. 6, 2022: Seattle, WA
Dec. 8, 2022: Sacramento, CA
Dec. 13, 2022: Chicago, IL
Dec. 15, 2022: Rock Island, IL
Jan. 10, 2023: New Orleans, LA
Jan. 12, 2023: Wilmington, NC
Jan. 17, 2023: Concord, MA.

Interested parties can register to participate in these regional stakeholder workshops via https://www.eventbrite.com/cc/public-law-84-99-rulemaking-outreach-sessions-1299419. Comments can be submitted through www.regulations.gov; via email to 33CFR203@usace.army.mil; or by mail to HQ, US Army Corps of Engineers, ATTN: 33CFR203/CECW-HS/3D64, 441 G Street NW, Washington, D.C. 20314-1000.

USFWS. Long eared bat (RE)classified as endangered. On November 29, 2022, the U.S. Fish and Wildlife Service published a final rule to reclassify the northern long-eared bat as endangered under the Endangered Species Act. The northern long-eared bat is found across much of the eastern and north central United States from the Atlantic coast west to the southern Northwest Territories and its habitat is in 37 states. This may impact some infrastructure projects nationally. To read more, click here.

NWC SPOTLIGHT

PL 84-99 NWC WORKING GROUP MEETING (Tuesday, Dec. 20, 2022, at 12pm EST). NWC will be holding an initial working call on USACE’s proposed rule to rewrite P.L. 84-99 on Tuesday, Dec. 13 at 3pm EST. Any NWC member who has interest in the issue is welcome to participate in the working group. If you are interested in receiving the zoom link for the meeting, please let Julie Ufner know.

NWC 2023 LEGISLATIVE SUMMIT (IN-PERSON, MARCH 6-8, 2023). NWC will be holding their 2023 Legislative Summit in Washington, DC, March 6-8, 2023, at the Hotel Washington. Primarily programming will occur on March 6-7 with a hill/agency day potentially scheduled the morning of March 8. Check the NWC website for the latest information.

NWC LEGISLATIVE POLICY COMMITTEE (FIRST THURSDAY OF THE MONTH, 4PM EST).The Legislative Policy Committee (LPC) serves as the primary advisor on NWC federal policy positions and decisions. Comprised of a broad scope of NWC membership, LPC is a consensus-based committee that is tasked with studying issues, recommending new federal policy positions, and drafting and signing off on NWC letters.

LPC holds monthly video conference calls (normally) on the first Thursday of the month where they receive a federal overview of pending legislative and regulatory issues. LPC is open to all interested NWC members. If you are interested in serving on this committee, please let Julie Ufner know.

2023 REGIONAL SPOTLIGHT? NWC is looking for a partner for our next Regional Spotlight in 2023. Interested? Want to learn more? Contact Julie Ufner at julie@waterways.org.