NWC Federal spotlight (March 25, 2022 edition) 

Dear NWC members,

Below are a few updates about what is going on in DC and within NWC (including details about our Legislative Summit). Largest bit of news? Biden will release his FY2023 budget on Monday, March 28 which will start Capitol Hill discussions about funding levels.

The other bit of news—we hear that Capitol Hill plans to do away with COVID-19 requirements over a three-step process, starting on March 28 and potentially ending the restrictions by Labor Day. Starting on March 28, 15 visitors at a time will be allowed to enter Capitol Hill offices, up from 9. Under current rules, all visitors must be escorted by a Congressional staffer while in the buildings—this requirement will remain under Phase 1. Phase 2, which starts on May 30 will partially open the Capitol Visitor Center. The goal is to have the Capitol complex fully open to visitors by Labor Day, although this goal is still tentative. According to reports, Capitol Hill still faces security concerns in the wake of the January 5, 2021, riot on Capitol Hill.

Finally, please remember to register for NWC’s 2022 Legislative Summit scheduled for April 25-26, 2022, in Washington, DC (information below). Early bird ends on March 31, 2022, and we would love to see you there!

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

Julie Ufner, NWC

CAPITOL HILL SPOTLIGHT

 OVERVIEW. The Senate was in session and the House was on recess. Largest newsworthy in the Senate? The Senate Judiciary Committee kicked off their confirmation hearings for Supreme Court Justice nominee Ketanji Brown Jackson this week. Looking short-term, the President’s budget request comes out on March 28 (more below) which will kick the appropriations process into high gear. Long-term, this is an election year, which means that Congress is usually fast and furious the first half of the year before hitting the campaign trail in October. There will likely be a lame duck session to finish any outstanding issues after the election. But the unknown is how the Ukraine-Russia conflict will play into both domestic and international issues–we face more inflation and supply chain challenges. Additionally, Democrats would like revive Biden’s Build Back Better, which died at the end of last year after Senator Manchin (D-WV) Virginia said he couldn’t support it in its current form. There will continue to be congressional and administration focus on climate change, resiliency and environmental justice issues and we will continue to analyze how these proposals will impact water and waterways projects.

Additionally, the upcoming elections this fall will play a huge role into what will get done. The Democrats hold both the House and Senate with very thin margins. Complicating this, it is an election year. All House seats are up. Currently in the House, there are 222 democrats vs. 210 Republicans (with three vacancies) which means that Speaker Pelosi has had a slim 12 vote margin. The Senate is 50-50 with Vice President Harris as the tie breaking vote. There are 34 out of 100 senate seats up for reelection—a third of them are up every two years—and the list includes 14 Democrats and 20 Republicans this election cycle. We know of several Senators who will not run including one Democrat and 6 republicans.  If either the House and/or the Senate flips, that has significant implications for administration priorities and what they can get passed in the next two years, let along the rest of this year.

A little bit of useless information….did you know that over 18,000 pieces of legislation have been introduced this Congress? According to GovTrack, in the past five congressional sessions—a session lasting two years—approximately only three percent of introduced bills actually become law.

 FY2023 BUDGET. Last week, an administration official announced that President Biden would be releasing his FY2023 budget on March 28. While the President’s annual budget is largely symbolic, it lays out the administration’s priority wish list for the coming appropriations cycle, and jump-starts Committee action on Capitol Hill. After the President’s budget is released, Congressional committees will start to hold hearings with administration officials on budget priorities and funding requests. This announcement came a week after the President enacted the FY2022 omnibus package which contained funding for all federal programs. Conversations have already started in the Capitol on funding levels. On March 21, Senate Appropriations Committee Vice Chair Richard Shelby (R-Ala.) confirmed that top appropriations leadership in the House and Senate have already started to discuss top line numbers.

 FY2022 appropriations. The current fiscal year ended September 2021. Several extensions were passed to give negotiators more time to work through disagreements on funding levels and policy riders. At the beginning of March, appropriators announced they came to an agreement and the Consolidated Appropriations Act, 2022 (P.L. 117-103) became law on March 15, 2022, closing this year’s debates on funding. The $1.5 trillion, 2,741-page package contained monies for all 12 appropriations bills. This is the first appropriations bill since 2011 to include earmarks—more than 4,000 over 367 pages. Additionally, the omnibus bill fully funds last year’s bipartisan-passed infrastructure package. Finally, the omnibus language includes a provision on Cyberattack Reporting that requires critical infrastructure owners and operators and businesses to report “significant hacks” within 72 hours and any ransomware payments they make within 24 hours to the Department of Homeland Security.  Under the omnibus package, the Director of the Cybersecurity and Infrastructure Agency (CISA, under Department of Homeland Security, must publish proposed rules in the Federal Register within 2 years of passage, and a final rule no later than 18 months later. The final rules will define who the “covered entities” are and what types of threats need to be reported. The House and Senate will now turn their attention to the FY23 appropriations process.

U.S. ARMY CORPS OF ENGINEERS. Under the agreement, the U.S. Army Corps of Engineers (Corps) Civil Works program would receive $8.3 billion, an increase of $548 million above FY2021 and $1.6 billion over the President’s budget request.

  • Investigations – Under investigations, the measure allots $143 million, an increase of $37.2 million above the budget request.
  • Construction – The measure provides $2.49 billion, an increase of $700 million above the president’s request.
  • Operation and Maintenance – The O&M program is funded at $4.57 billion, an increase of $720 million above FY 2021 and $2.07 billion above the budget request.
  • Mississippi River and Tributaries – The FY2022 omnibus gives $370 million to MR&T. This is a little over $100 million over the president’s budget request.
  • Harbor Maintenance Trust Fund projects receive an estimated $2.05 billion, an increase of $370 million above fiscal year 2021 and $424.1 million above the request.
  • Flood Control and Coastal Emergencies – The bill includes $35 million for the Flood Control and Coastal Emergencies account.
  • Water Infrastructure Finance and Innovation Act (WIFIA) – The Corps WIFIA Program would receive $5 million for safety projects to maintain, upgrade and repair dams.

 Resources:

Latest on WRDA. Both chambers have been hot and heavy planning for a 2022 Water Resources Development Act bill, which is a biannual piece of legislation that authorizes studies, projects, and policies for the U.S. Army Corps of Engineers. It is just the first step of a two-step process since the studies and projects need to get funded during the appropriations process. The Committee on Environment and Public Works on the Senate side collected WRDA suggestions at the end of last year. They are currently writing a bill, expected out in late April, with a committee markup and Senate floor action expected in May. The House of Representatives Transportation and Infrastructure Committee started their process this year.

Last week, T&I held a member’s day to hear from members on WRDA priorities. Over three dozen projects were proposed across the nation. The Committee plans to release a draft bill in the next several months.

Key issues that will arise in WRDA 2022 include climate and resiliency initiatives. Specifically, a bipartisan bill has been introduced in both the House and Senate called the “Shoreline Health Oversight, Restoration, Resilience and Enhancement (SHORRE) Act (S. 3624/H.R. 6705), which would elevate coastal protection to a primary mission of the Corps. Pushing aside the issue of whether or not the coastal protection should be a primary Corps mission – the bill has implications for how projects are justified (i.e. moves emphasis away from flood control and replaces it with erosion and environmental restoration). Additionally, the cost share would change for study and planning phase and construction and prioritizes nonstructural to other options.

WOTUS. Earlier in March, 201 Republicans sent a letter to the Biden administration urging them to halt their “Waters of the U.S.” rulemaking until after the Supreme Court rules on a related case later this year or next year (Sackett v. EPA). The request is similar to a NWC request made to EPA and USACE last month in our proposed WOTUS rule comments.

The term WOTUS has been around for decades. It is a term used in the Clean Water Act (CWA) to define which waters are regulated at the federal verses state level. The term and how it has been defined has been fraught with controversy for decades due to several unclear Supreme Court decisions. As a result, several presidential administrations have tried to rewrite the WOTUS rules. Obama in 2015 and Trump in 2019. Both sets of rules were successfully challenged in the courts.

The Biden administration has committed to rewriting the rule in a two-step process—of which NWC submitted detailed comments on the scope of the first step last month. The proposed rule proposed to go back to the pre-2015 WOTUS rules (known as the 1986 regulations) with a significant tweak. The proposed rule added the terms “significant nexus” and “relatively permanent” to change and potentially expand the scope of CWA jurisdiction. The final rule on Phase 1 (reverting back to 1986 regulations (with the inclusion of the terms significant nexus/relatively permanent) is expected later this year before the EPA and Corps plan to put pen to paper on a completely new WOTUS definition.

Issues likely in play if Phase 2 WOTUS rulemaking moves forward include, but are not limited to, should groundwater be continued to be excluded from CWA regulation; how emerging issues like climate change, urban flooding and increased precipitation impact WOTUS; and new approaches for environmental justice issues.

ESA. In March, the U.S. Fish and Wildlife Service (NWS), along with NOAA Fisheries (Fisheries), sent a proposed Endangered Species Act rule to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. Specifically, it is expected that this proposed rule will eliminate President Trump’s December 2020 rule which included a narrower definition of “habitat.” The scope of ESA centers around that key term and the definition is critical to define the limits and scope of ESA jurisdiction. On timing for the proposed rule to be released for comment, while technically the time period for OIRA interagency review is limited to 90 days, there have been cases where the length of review has been extended due to the nature of the rule.

Concurrently to FWS filing the rule, the Center for Biological Diversity filed a petition that asks NWS and Fisheries to take the following actions: repeal all Trump area regulations, policies and guidance documents on ESA; restore scientific integrity to the listing and consultation process; create a scientifically defensible definition of recovery; define “significant portion of its range” to prevent extirpation; fully integrate climate change into the conservation and recovery of endangered species; strengthen protections for critical habitat; strengthen protections for foreign-listed species by restoring the global scope of Section 7 interagency consultations; require federal agencies to develop ambitious proactive conservation programs for species harmed by their actions; strengthen the implementation and use of experimental populations as a key conservation tool for species recovery; and more.

CAPITOL HILL HEARINGS OF INTEREST (Week of March 28):

  • HEARING. THE PRESIDENT’S FISCAL YEAR 2023 BUDGET (March 29, 2022, at 10am EDT). The House Budget Committee is holding a hearing on the President’s FY2023 budget request. For more information, click here.
  • HEARING. TRUSTING THE TAP: UPGRADING AMERICA’S DRINKING WATER INFRASTRUCTURE (March 29, 2022, at 10:30am EDT). The House Energy and Commerce Committee is holding a hearing to examine the challenges of upgrading the nation’s drinking water infrastructure. Click here to learn more.

 FEDERAL AGENCY SPOTLIGHT

DOD. DOD CIVILIANS . RETURN TO FACE-TO-FACE WORK.  The Department of Defense (DOD) has laid out a plan to bring DOD civilians back to the office. According to a March 16, 2022, memo for Senior Pentagon Leadership, managers need to start talking to their civilian employees about face-to-face reentry work plans. Under the guidelines, managers will provide a 30-day notice in writing to civilian employees. For other types of employees, managers can “adjust the work locations and work schedules” without any advance notice. The memo goes on to say that DOD is “reviewing and incorporating flexibilities such as telework” into their policies. To read the memo, click here.

USACE. MEMORANDUM RELEASED ON USACE IMPLEMENTATION OF ENVIRONMENTAL JUSTICE/JUSTICE40 INITIATIVE. On March 15, the Assistant Secretary of the Army for Civil Works released an interim guidance memo and direction to USACE on how environmental justice and Justice40 Initiative should be implemented in civil works program. Within the realm of environmental justice, the memo states that USACE civil works should focus on improving outreach and access to civil works information and resources; improving access to civil works technical assistance programs; and ensure that any updates to civil works programs and policies will not adversely impact disadvantaged communities.

The memo goes on to instruct USACE to use tools recently released by the Council on Environmental Quality and EPA EJScreen Tool to identify areas of the nation with environmental justice issues. The memo indicates under Justice40, that USACE should aim to provide 40% of the overall benefits from federal monies to disadvantaged communities.

For projects in the study and planning phases, USACE is instructed “focus on a comprehensive evaluation of the total benefits of each plan including equal consideration of applicable benefits types in the study scope of work where the disadvantaged communities play a key role…” The intent is to put “disadvantaged communities at the front and center of studies.”

Under the construction phase, the memo states that “As long as an overall project will result in benefits toward disadvantaged communities it will count toward an investment in environmental justice, since the project works holistically and cannot be piecemealed to achieve the overall benefits provided.”

The memo instructs USACE to lay out a plan for how it will incorporate these instructions into the process by April 29, 2022, for ASA(CW) review. This plan will include an outreach and strategic plan with impacted non-federal sponsors, communities, and stakeholders. To read the memo, click here.

USACE. EXTENSION OF NOMINATION REQUESTS FOR COMMITTEE ON LEVEE SAFETY PROGRAM (extended to May 6, 2022). On March 22, 2022, the U.S. Army Corps of Engineers published a notice in the Federal Register that announced an extension of nominations for the Committee on Levee Safety. The Committee was formed to advise the U.S. Army Corps of Engineers and the Federal Emergency Management Agency on implementation of the National Levee Safety Program. The Committee has 14 members derived from eight state levee safety agencies; two representatives from the private sector; two representatives of regional or local governmental agencies and two tribal representatives. For more information and/or on how to apply, click here.

USACE. Inland Waterways User Board Meeting (April 20, 2022, from 10am—2:30pm). The U.S. Army Corps of Engineers (USACE) announced that the next Inland Waterways User Board meeting will occur on Wednesday, April 20, 2022, from 10am—2:30pm EDT at the Westin New Orleans Canal Place, 100 Iberville Street, New Orleans, Louisiana 70130. The online virtual portion of the Inland Waterways Users Board meeting can be accessed at https://usace1.webex.com/meet/ndc.nav, Public Call-in: USA TollFree 844-800-2712, USA Caller Paid/International Toll: 1-669-234-1177 Access Code:199 117 3596, Security Code 1234.  At this meeting the agenda will include the status of the Inland Waterways Trust Fund (IWTF); the status of Fiscal Year (FY) 2022 funding for inland and coastal Navigation and the Continuing Resolution Act, the funding from the Infrastructure Investment and Jobs Act (IIJA) and Disaster Relief Supplemental Appropriations Act, and the FY 2023 Budget for Navigation; remote lock operations assessment; the inland waterways Capital Investment Strategy activities; updates of future inland waterways projects for Three Rivers, Arkansas, Mississippi River-Illinois Waterway Navigation and Ecosystem Sustainability Program (NESP), Upper Ohio River Navigation and Gulf Intracoastal Waterway; status of the ongoing construction activities for the Monongahela River Locks and Dams 2, 3, and 4, the Ohio River Montgomery Lock projects, the Chickamauga Lock Project and the Kentucky Lock Project; and status of Inner Harbor Navigation Canal Lock and Bayou Sorrel Lock. Notice attached (OFR-PL_2022-05876).

SEC. AGENCY RELEASES CLIMATE DISCLOSURE PROPOSED RULE FOR PUBLICLY TRADED COMPANIES. The U.S. Securities and Exchange Commission (SEC)….unveiled 510-page proposed rule that would require publicly traded companies to share how climate change and clean energy shifts impact their business. “The Enhancement and Standardization of Climate-Related Disclosers for Investors” would require businesses to “provide climate-related information, such as their greenhouse gas emissions, in their registration statements and annual reports, including climate-related financial risks and climate-related financial metrics in their financial statements.” Companies that already have climate commitments would be required to detail how they plan to achieve those goals as well. Once the proposed rule is published in the Federal Register, there will be a 30-day public comment period. To view the proposed rule, click here.

NWC SPOTLIGHT

 NWC. FLOOD CONTROL CAUCUS. NWC’s Flood Control Caucus met earlier this month to discuss potential NWC comments on USACE’s and FEMA’s National Levee Safety Program. We are currently drafting comments which will be shared with NWC’s Legislative Policy Committee for review next week.

NWC. LEGISLATIVE POLICY COMMITTEE (Thursday, April 7, 2022, 4pm ET). NWC’s Legislative Policy Committee will hold their next virtual monthly meeting on Thursday, April 7, 2022, at 4pm ET.  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. If you are interested in serving on this committee, please reach out to Julie Ufner, NWC staff.

 NWC. WATER SUPPLY CAUCUS (April 15, 2022, 2pm ET). NWC’s Water Supply Caucus is slated to meet on Friday, April 15, 2022, at 2pm. Due to Good Friday, this meeting may be rescheduled. We plan to send an update to the caucus within the next week or so.

 NWC. NWC NAVIGATION CAUCUS (April 19, 2022, 3pm ET). NWC’s Navigation Caucus will hold a virtual meeting on Tuesday, April 19, 2022, at 3pm. The NWC Navigation Caucus supports the U.S. Army Corps of Engineers and all federal agencies whose authorizations, policies, and legislative mandates impact the navigation channels across the nation. Our goal is to facilitate the fluid movement of commerce by collaborating with federal agencies and industry to ensure the viability of the coastal and inland river navigation systems by working with Congress to secure funding for construction and ongoing operations and maintenance for USACE projects. The April 19th meeting will focus on WRDA updates, discussion of USACE/NOAA environmental baseline memo, CEMUS dock permits and more. If you are not on the navigation caucus and wish to participate, just send Julie Ufner, NWC President (julie@waterways.org), an email request and she will share the zoom link.

 NWC. NWC LEGISLATIVE SUMMIT (April 25-26, 2022). Join NWC members in Washington for productive and informative sessions with thought leaders working toward a greater understanding of the widespread public benefits of our nation’s water and waterways resources infrastructure. The 2022 NWC Legislative Summit in Washington DC will be on Monday, April 25 and Tuesday, April 26, 2022, at the Ronald Reagan Building and International Trade Center (RRBITC) at 1300 Pennsylvania Avenue, NW, Washington DC 20004.

Recently confirmed speakers include Ms. Robyn Colosimo, Director of Policy and Legislation, Assistant Secretary of the Army (Civil Works), U.S. Department of Defense; Mr. Wes Coleman, Acting Chief, Program Integration Division, U.S. Army Corps of Engineers; Ms. Tiffany Burroughs, Chief of Navigation, U.S. Army Corps of Engineers; Ms. Phoebe Percell, Chief of Dam and Levee Safety (Civil Works), U.S. Army Corps of Engineers. To see the most recent agenda, click here. Please refer to the attached agenda for more information.

REGISTRATION. $350 if received on or before March 31, 2022  l  $450 if received after March 31, 2022. To register, email your contact information to NWC Consultant Ann Makowski at Ann.Makowski@gmail.com and she will contact you directly regarding your payment by check or credit card. NOTE: While vaccine card requirements have been lifted for the city of Washington, DC, please note that RRBITC is a federal property. Under federal property rules, visitors must wear masks for building entry. While these rules may change before the Legislative Summit, by registering for the LS event, you agree to comply with stated rules at the time of the event.

NEARBY HOTELS. While there is not a room block for the 2022 NWC Legislative Summit, here is a link showing nearby hotels: NWC Legislative Summit Hotel Finder.

SPONSORSHIP. Your financial support provides NWC the opportunity to continue to be the strong voice in Washington, driving water resources policy for our members. Please review the prospectus!  We have a plethora of options to fit your budget, from a keynote luncheon, breaks and a cocktail reception in a unique DC location.  A sponsorship offers you a unique platform to network, connect and build brand recognition among the top leaders in the industry.  You will go home with lead generation of everyone in attendance, keeping your company or organization at the top of everyone’s mind.

A huge thank you to the following sponsors: SILVER: Trinity River Authority; BRONZE: Alabama Ports and Freese and Nichols. Thank you!!!

For more information about sponsorship, contact NWC consultant, Kathleen Turner at KathleenTurner18@gmail.com or 703-657-9171.