NWC Federal Spotlight (Jan. 10, 2023)

Happy New Year NWC members,

Welcome back after the holidays to 2023. I think this will be a good year, if not at the very least, interesting. Congress came back for the 118th Congress last week, after multiple speaker elections, Rep. Kevin McCarthy (R-Calif.) was elected as House speaker late last Friday. This week in the House, committee chairs were named and House rules were adopted. The best news? Capitol Hill offices are now open. Read more under our Congressional Spotlight.

On the regulatory front, for those of you planning to comment on the PL 84-99 rulemaking effort, the public comment period has been extended for 30 days. Read more under our Federal Agency Spotlight.

I also wanted to take the opportunity to do a shout-out to our newest member, Black & Veatch. When you have a minute, reach out to say hello. Read more about them under our New Member Spotlight.

Finally, I just wanted you to be aware that registration and the hotel block for NWC’s Legislative Summit on March 6-8, 2023, in Washington, DC has opened. Early bird pricing ends on Jan. 31, 2023, and the hotel block closes on Feb. 9, 2023 (or until the room block is full). For more information, click here.

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

Best, Julie

*please excuse any typos or errors

NEW MEMBER SPOTLIGHT

NWC WELCOMES BLACK & VEATCH AS A NEW MEMBER! Black & Veatch is one of the largest and most diversified engineering-construction firms in the world, with a combined total staff of more than 10,000 engineers, program manager, constructions managers, plant operators, business consultants, scientists, geologists, regulatory experts and support staff located around the world in more than 120 offices on six continents. Black & Veatch works alongside all levels of government — federal, state and local — to develop, build and protect critical and integrated energy, water and communications infrastructure. They bring more than 100 years of experience and expertise to every project from modernizing water infrastructure to providing unique solutions on defense programs and mission critical facilities. They deliver successful project outcomes that mitigate risk and maximize increasingly limited resources. Their experts are proficient and experienced at addressing challenges unique to government services such as working to provide clean drinking water, preventing large headline-grabbing security breaches, or supporting mission-critical defense projects and pathogen outbreaks. From the U.S. Army Corps of Engineers and U.S. Missile Defense Agency to the Defense Threat Reduction Agency, FEMA and more, Black & Veatch has the experience to provide critical infrastructure protection, and resilience-centric services essential to a safer nation.

CONGRESSIONAL SPOTLIGHT

OVERVIEW: Officially, the 117th Congress ended officially on Tuesday, January 3, 2023, at the beginning of the 118th Congress. Although their legislative business finished sooner, right before the holiday season. Some of the things Congress got finished—the Water Resources Development Act, 2022 (WRDA 2022) and FY2023 appropriations—and both were signed into law before the end of the year by President Biden. Congrats to any of you who had priorities in WRDA and/or FY2023 appropriations and got them!

The 118th Congress which started last Tuesday has seven new senators and 74 new House members with a wide range of backgrounds. To read more about them, click here.

The largest issue facing the 118th Congress is the U.S. hitting the debt limit by the 3rd quarter. Another issue is FY2024 appropriations, which will be kicked off when President Biden releases his budget request early this year, expected in the February/March timeframe.

On another note, the Office of the Sergeant At Arms sent a message on Dec. 30, 2022, to all House offices that as of Tuesday, January 3 at 12:00pm, the Capitol and the House Office Buildings will reopen to tour and official business access. Staff are no longer required to escort guests in the House offices. The message goes on to say that the Capitol Visitor Center will fully reopen in March 2023.

SENATE/OPENING 118th CONGRESS: The Democratically controlled Senate swore in its new members on Jan. 3. The Democrats control 51 seats to the Republicans 49. Three of the 51 democrats are registered Independents but are caucusing with the Democrats, which gives the Democrats control over the chamber. We are going to see many of the same challenges in the Senate, as in last Congress, due to the tight 2 seat margin. As a reminder, in the Senate, generally, 60 votes are needed to pass bills. That means that Democrats will need Republican support to advance any must-pass bills like appropriations and to address the debt ceiling. After the swearing-in ceremony, the Senate adjourned for two weeks and will return later this month for legislative business. As with the 117th Congress, the Majority Leader is Charles Schumer (D-NY) and Minority Leader is Mitch McConnell (R-Ky.). A huge congratulations to Senator Patty Murray (D-Wash.) for being named President Pro Tempore!

HOUSE/OPENING 118th CONGRESS: In the House, the Republicans hold a narrow 10-seat margin with an increasingly split caucus. This was highlighted last week when it took 15 voting rounds and numerous concessions to elect Rep. Kevin McCarthy (R-Calif.) as House Speaker after House Freedom Caucus members voted against McCarthy’s bid. This is extremely rare since House speakers are usually elected on the first vote. The last time the House had to cast multiple votes for a speaker is in 1923 with 9 votes. This wasn’t McCarthy’s first attempt to be speaker, he ran for speaker unsuccessfully in 2015. Unlike most votes in the House which are majority based, the speaker election is based on a numerical majority of the votes cast by members for a person by name, this is generally acknowledged to be 218 votes. Of the current 434 members of the House, 222 are Republican to Democrats 212 members. So, going into the speaker vote, McCarthy knew he could only afford to lose four votes but in the first several rounds of voting, he lost anywhere from 19-21 votes. He eventually overcame this with work from his supporters and offered concessions. And there were real-world implications of not having a speaker: technically, all the representatives on the House floor were representatives-elect, they could not be sworn in until after the speaker was elected. Furthermore, until the speaker was elected, there were no rules for day-to-day operations, nor rules for floor or committee operations.

Once McCarthy was successfully elected as the speaker, on Jan. 7, he swore in the representatives-elect into office. On Jan. 9, the House passed the rules package for the 118th Congress by of vote of 220-213, which includes many concessions to the House Freedom Caucus. One Republican Rep. Tony Gonzales (Texas) crossed party lines to vote with the Democrats. This rules package will govern how the House operates in the 118th Congress. Some of the more notable changes include but are not limited to:  a no-confidence vote for the speaker only requires one member to request; eliminates proxy voting and virtual committee work; bills have to be available for review for at least 72 hours before action; “cut-as-you-go” (CUTGO) will replace PAYGO rules and require mandatory spending provisions be offset; repeals an automatic debt limit increase which will require Congress to address it later this year; and more. To see a summary of the House rules, click here. The Majority Leader is Rep. Steve Scalise (R-La.) and the Minority Leader is Rep. Hakeem S. Jeffries (D-NY). Additionally, House Committee Chairs were named this week and for the Transportation and Infrastructure Committee Rep. Sam Graves (R-MO) was named Chair and Rep. Rick Larsen (D-Wash.) is ranking member. For the Appropriations Committee, the chair is Rep. Kay Granger (R-Texas) and the ranking member is Rosa DeLauro (D-Conn.).

FEDERAL AGENCY SPOTLIGHT

ADMINISTRATION. WHITE HOUSE RELEASES SEMI-ANNUAL REGULATORY PLAN. On Jan. 4, 2023, the White House released its 2022 Unified Regulatory Agenda and regulatory plan which lays out their expected timelines for proposed and final regulations in the next six months or so for all federal agencies. Some of the pending rules of interest in the water/waterways community are listed below:

Department of Commerce

  • Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat (NPRM, May 2023).  Per Section 2 of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (EO 13990), and subsequent Fact Sheet: List of Agency Actions for Review, NOAA and USFWS are reviewing the ESA Section 4 regs to determine whether and how they should be revised or rescinded. 

U.S. Army Corps of Engineers (U.S. Department of Defense)

  • Appendix C Procedures for the Protection of Historic Properties (NPRM, May 2023).  The Corps proposes to revise its regulations to conform to the Advisory Council on Historic Preservation’s regulations.
  • Credit Assistance for Water Resources Infrastructure Projects  (Final, April 2023). The U.S. Army Corps of Engineers (Corps) is implementing a new credit program for dam safety work at non-Federal dams.  This rulemaking lays out the parameters by which the program will be run.
  • Flood Control Cost-Sharing Requirements Under the Ability to Pay Provision (NPRM, Nov. 2023). Section 103(m) of the Water Resources Development Act (WRDA) of 1986, as amended (33 U.S.C. 2213(m)), authorizes the US Army Corps of Engineers (Corps) to reduce the non-Federal share of the cost of a study or project for certain communities that are not able financially to afford the standard non-Federal cost-share. Part 241 of Title 33 in the Code of Federal Regulations provides the criteria that the Corps uses in making these determinations where the primary purpose of the study or project is flood damage reduction. The proposed rule would update this regulation, by broadening its applicability to include projects with other purposes (instead of just flood damage reduction) and the feasibility study of a project (instead of just design and construction).
  • Floodplain Management Services Program Establishment of Fees for Cost Recovery (NPRM, May 2023). The U.S. Army Corps of Engineers (Corps) is proposing to amend this regulation to adjust fees collected from Federal agencies and private persons for certain floodplain management services. These fees have not changed since 1991. The Corps is considering adjusting them to recover the cost of providing these services.
  • Natural Disaster Procedures: Preparedness, Response, and Recovery Activities of the Corps of Engineers (Final action): Nov. 2023). The U.S. Army Corps of Engineers (Corps) is proposing to update the Federal regulation that covers the procedures that the Corps uses under section 5 of the Flood Control Act of 1941, as amended (33 U.S.C. 701n), commonly referred to as Public Law 84-99. The Corps relies on this program to prepare for, respond to, and help communities recover from a flood, hurricane, or other natural disaster, including the repair of damage to eligible flood risk reduction infrastructure.
  • Policy and Procedures for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408  (April 2023). Through the Civil Works program, the US Army Corps of Engineers (Corps), in partnership with stakeholders, has constructed many Civil Works projects across the Nation’s landscape. The agency is looking to issue 408 requirements through rulemaking.
  • Procedures for Implementing the National Environmental Policy Act for Regulatory Program  (NPRM, Sept. 2023).  Under this NPRM, the Corps proposes to conduct rulemaking to determine whether to amend its NEPA regulations for the Regulatory Program with targeted updates at 33 CFR part 325, appendix B, to conform with any forthcoming Council on Environmental Quality (CEQ) final NEPA regulation. In a separate rulemaking action, the Corps proposes to update the NEPA implementing procedures applicable to all of the Corps’ Civil Works Programs.
  • Procedures for Implementing the National Environmental Policy Act Under the Civil Works Program  (NPRM, Sept. 2023). The U.S. Army Corps of Engineers (Corps) plans to propose changes to its National Environmental Policy Act (NEPA) regulations for its Civil Works Program to conform to any forthcoming Council of Environmental Quality’s (CEQ) final NEPA regulation. In a separate rulemaking action, the Corps proposes to update the NEPA implementing procedures specific to the Corps’ Regulatory Program.
  • Reissuance and Modification of Nationwide Permit 12 (NPRM, Aug. 2023). Every five years, the U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899.  The NWPs authorize specific categories of activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental effects. For this rulemaking, they are looking to modify NWP 12.
  • Revised Definition of “Waters of the United States”–Rule 2 (NPRM, Sept. 2023). The EPA and the Department of the Army (the agencies”) intend to pursue a second rule defining ”Waters of the United States” to consider further revisions to the agencies’ first rule (RIN 2040-AG13), which proposes to develop regulations informed by the pre-2015 rule, the 2015 Clean Water Rule and the 2020 Navigable Waters Protection Rule.
  •  USACE Implementing Procedures for Principles, Requirements, and Guidelines Applicable to Actions Involving Investment in Water Resources (NPRM, May 2023). The PR&G are intended to provide a common framework and comprehensive policy and guidance for analyzing a diverse range of water resources projects, programs, activities, and related actions involving Federal investment in water resources.  The U.S. Army Corps of Engineers (Corps) proposes a regulation to show how it would apply the PR&G to the Corps’ mission and authorities.

U.S. Coast Guard (Department of Homeland Security)

  • Shipping Safety Fairways Along the Atlantic Coast (NPRM, March 2023). The Coast Guard seeks comments regarding the possible establishment of shipping safety fairways (fairways) along the Atlantic Coast of the United States.
  • Cybersecurity in the Marine Transportation System (NPRM, June 2023). The Coast Guard proposes to update its maritime security regulations by adding cybersecurity requirements to existing Maritime Security regulations in 33 CFR part 101 et seq.  This proposed rulemaking is part of an ongoing effort to address emerging cybersecurity risks and threats to maritime security by including additional security requirements to safeguard the marine transportation system.

Federal Emergency Management Agency (Department of Homeland Security)

  • Updates to Floodplain Management and Protection of Wetlands Regulations (NPRM, March 2023). Consistent with President Biden’s Executive Order on Climate Related Financial Risk (E.O. 14030), the Federal Emergency Management Agency (FEMA) proposes to amend its regulations at 44 CFR part 9 Floodplain Management and Protection of Wetlands to incorporate amendments to Executive Order 11988 and the Federal Flood Risk Management Standard (FFRMS). 

U.S. Environmental Protection Agency

  • Clean Water Act 404 Assumption Update Regulation (NPRM, Sept. 2023/Final Rule, Oct. 2024). In response to requests from states and tribes, the EPA is seeking to clarify requirements for assumption of the CWA 404(g) permit program, reduce barriers to assumption, and place more states and tribes in the decision-making position on dredge and fill permits. The proposed rule will address the procedures and criteria the EPA will follow in approving, reviewing, and the administration and oversight of state and tribal programs under CWA section 404(g) and EPA’s implementing regulations at 40 CFR part 233.
  • Market-Based Approaches Under the National Pollutant Discharge Elimination System (NPDES) Program  (NPRM, June 2023/Final rule, Oct. 2024). The Agency is proposing a regulation to clarify how water quality trading and other market-based approaches may be used by NPDES permitting authorities in permits to meet applicable water quality standards.
  • National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI) (NPRM, Aug. 2023/Final, Oct. 2024). EPA is developing LCRI to strengthen the regulatory framework and address lead in drinking water.
  • Per- and Polyfluoroalkyl Substances (PFAS) National Primary Drinking Water Regulation Rulemaking (NPRM, March 2023; Final, Sept. 2024).  With this action, EPA intends to develop a proposed national primary drinking water regulation for PFOA and PFOS, and as appropriate, take final action. Additionally, EPA will continue to consider other PFAS as part of this action.
  • Clean Water Act Section 401: Water Quality Certification (Final, June 2023). In June 2022, consistent with Executive Order 13990, EPA proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule” to revise the 2020 Rule. The proposed rule would update the existing regulations to be more consistent with the statutory text of the 1972 CWA; to clarify, reinforce, and provide a measure of consistency. 

DOT. RAISE DISCRETIONARY GRANTS (applications due Feb. 28, 2023). On Jan. 6, the U.S. Department of Transportation has published a Notice of Funding Opportunity (NOFO) for $1.5 billion in grant funding through the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) discretionary grant program for 2023. This notice is an amendment to the original notice posted November 30 to reflect additional funding made available under the Consolidated Appropriations Act, 2023. Total funding for the program is $1.5 billion. Half of the funding will go to projects in rural areas, and half of the funding will go to projects in urban areas. At least $15 million in funding is guaranteed to go towards projects located in Areas of Persistent Poverty or Historically Disadvantaged Communities, and projects located in these areas will be eligible for up to 100 percent federal cost share, as directed by Congress in the Bipartisan Infrastructure Law. Eligible Applicants for RAISE grants are: States and the District of Columbia; any territory or possession of the United States; a unit of local government; a public agency or publicly chartered authority established by one or more States; a special purpose district or public authority with a transportation function, including a port authority; a Federally recognized Indian Tribe or a consortium of such Indian Tribes; a transit agency; and a multi-State or multijurisdictional group of entities that are separately eligible. For more information, click here.

CEQ. National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change (comments due By March 10, 2023). The Council on Environmental Quality (CEQ) has issued interim guidance to assist agencies in analyzing greenhouse gas (GHG) and climate change effects of their proposed actions under the National Environmental Policy Act (NEPA). CEQ intends to either revise the guidance in response to public comments or finalize the interim guidance. According to CEQ, the guidance gives parameters to federal agencies on how they can assess climate impacts of projects. Additionally, the guidance urges agencies to interface with impacted communities and include environment justice impacts into their considerations. The guidance is effective immediately but open for public comment until March 10. To learn more about the guidance and public comment period, click here. 

FEMA. FEMA ISSUES NATIONAL PREPAREDNESS REPORT. FEMA released the 2022 National Preparedness Report, revealing the impacts that climate change and associated natural disasters continue to have on emergency management capabilities and communities across the country. According to FEMA, this year’s report presents preparedness data through the lens of risks and capabilities and underscores the challenges that emergency managers face in addressing a continuously expanding risk environment, the ingenuity they have shown to rise to those challenges, and the opportunities that remain to better prepare the nation.

FEMA. Technical Mapping Advisory Council (in-person and virtual, Jan. 23-24, 2023). The Federal Emergency Management Agency (FEMA) Technical Mapping Advisory Council (TMAC) will hold an in-person public meeting with a virtual option on Monday, January 23, 2023, and Tuesday, January  24, 2023. The meeting will be open to the public in-person and via a Microsoft Teams Video Communications link. The purpose of this meeting is for the TMAC members to  discuss and vote on the content of the 2023 TMAC Annual Report Outline. For more information, click here.

USACE. COMMENT PERIOD FOR P.L. 84-99 RULEMAKING EXTENDED 30 DAYS (Comments due Feb. 16, 2023). On November 15, 2022, the U.S. Army Corps of Engineers (the Corps) published a proposed rule to revise its natural disaster procedures under this part of the Code of Federal Regulations (CFR), which implements a section of the Flood Control Act of 1941, as amended. The comment period was originally scheduled to end on January 17, 2023, and they received requests to extend the comment period. The Corps is extending the comment period by 30 days to provide a 90-day comment period for this proposed rule. For more information, click here. NWC is currently drafting comments through their PL 84-99 working group. If you are interested in serving on this group, please contact Julie Ufner at julie@waterways.org.

USACE. PORTLAND USACE RELEASES A UNIQUE 2023 CALENDAR. If you like cats and you like civil works, you may want to check out USACE’s Portland District 2023 calendar, featuring their best projects, with little (big) furry prop(s). To view or download the calendar, click here. If anyone ever comes across a hard copy and has an extra copy, please think of me.