NWC Federal Spotlight
October 27, 2021 edition
NWC’s Federal Spotlight highlights high-level Congressional, regulatory and judicial happenings in the arena of water and waterways users and infrastructure.
QUICK LINKS
- Capitol Hill Happenings
- Congressional overview
- Judiciary Cases of Interest
- Court invalidates CWA Section 401 water certification rule
- Federal Agency Corner
- EPA revises toxicity assessment for GenX chemicals
- PFAS Roadmap
- FWS proposes to rescind Trump era regulations on designating critical habitat
- Upcoming NWC Meetings
- NWC Educational Session: Floodplain Regulatory Reform: What to know and how to respond (Wednesday, November 3 at 3:30pm ET)
- NWC Legislative Policy Committee meeting (Thursday, November 4 at 4pm ET)
- NWC Water Supply Caucus meeting (Friday, November 19 at 2pm ET)
- NWC Navigation Caucus Meeting (Tuesday, January 11 at 2pm ET)
Congressional overview. All eyes are on Congress this week as they race to put the final touches on their “social safety net” package of benefits in their reconciliation package. Originally, a $3.5 trillion bill, the reconciliation package has reportedly been cut to a tune of $2.2-$2.5 trillion. The package is a key part of Biden’s Build Back Better agenda.
Since its introduction, the reconciliation package has faced major challenges both from within and outside the party on its scope and size. As Democrats work to whittle down the bill, there remain a handful of issues that still need to be worked out (climate change provisions, Medicare and Medicaid expansions, taxes on the wealthy and corporations, child care tax credit and paid family leave. However, at press time, it was reported that paid leave is now out of the package).
Senator Manchin (D-W.Va.) has expressed concerns with the climate change provisions and the overall cost of the bill. He would like to see a price tag closer to $.1.5 trillion.
The pressure is on Democrats to keep the climate change provisions as President Biden heads to the 2021 United Nations Climate Change Conference (COP26) in Glasgow, Scotland next week. On Fox News Sunday, Rep. Ro Khanna (D-Calif.) said that President Biden told Democrats that “I need this before I go represent the United States in Glasgow…American prestige in on the line.” At COP26, world leaders will work toward crafting an international agreement to go carbon neutral by 2050.
Both House and Senate Democratic leadership said it is their intent to release and potentially vote on a revised reconciliation bill this week. The fate of the reconciliation bill has been tied to the $1 trillion bipartisan traditional infrastructure package that passed the Senate earlier this year, which is expected to be voted on when the reconciliation measure comes up.
Judiciary Cases of Interest
COURT CASE. Court invalidates CWA Section 401 water certification rule. On Oct. 21, a district court out of California ruled that Trump’s 2020 Clean Water Act Section 401 Certification Rule was invalid and reinstated the prior CWA Section 401 rule. Section 401 of the Clean Water Act requires that states “certify” that proposed projects meet water quality standards. Section 401 certifications are required before the federal government signs off on certain permits such as CWA Section 402 and 404, Federal Energy Regulatory Commission licenses for hydropower/natural gas pipelines, and River and Harbors Act Section 9 and 10 permits. In 2020, Trump finalized a new Section 401 rule to “streamline and expedite” the permitting process that set tighter timelines and narrower criteria for states to review projects. Previously, the Biden administration announced plans to rewrite the Section 401 rule.
EPA. EPA revises toxicity assessment for GenX chemicals. On Oct. 25, the U.S. Environmental Protection Agency (EPA) released an updated toxicity assessment that state that GenX chemicals are more toxic than previously believed. GenX chemicals are a subset of per- and polyfluoroalkyl substances (PFAS). According to the report, GenX chemicals are safe to ingest at three-millionths of a milligram per kilogram of body weigh daily, as opposed to the previous assessment of eighth-hundred-thousandths of a milligram per kilogram of body weight. In 2017, Gen X was found in the Cape Fear River basin in NC, which provides drinking water for close to a million people. The EPA is moving toward setting a regulatory standard for certain PFAS chemicals, including GenX.
EPA. PFAS Roadmap. On October 18, the U.S. Environmental Protection Agency released the agency’s PFAS Strategic Roadmap on how EPA will address PFAS contamination nationwide. Per- and polyfluoroalkyl substances (PFAS) are a class of chemicals used in a variety of everyday goods including non-stick surfaces, food packaging, and stain resistant products. Additionally, PFAS is a key ingredient used in fire suppression foam at military installations and airports. Numerous studies have found high PFAS in some water supplies, leading to concerns that the contamination could negatively impact human and animals. In their Roadmap, https://www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024
FWS. FWS proposes to rescind Trump era regulations on designating critical habitat. On October 27, the Fish and Wildlife Service published two proposed and related Endangered Species Act related recissions in the Federal Register. The first, would remove the regulatory definition of “habitat,” specifically how critical habitat is designated. The rationale for removing this definition; the agency feels the current definition constrains the agency’s ability to effectively identify and designate endangered and threatened species habitat. The second proposal would rescind the final rule on “Endangered and Threatened Wildlife and Plants; Regulations for Designated Critical Habitat.” FWS is accepting public comments on both proposals until November 26, 2021.
WEBINAR: NWC Educational Session: Floodplain Regulatory Reform: What to know and how to respond (Wednesday, November 3 at 3:30pm ET).
TO REGISTER: PLEASE EMAIL JULIE UFNER AT JULIE@WATERWAYS.ORG AND SHE WILL SHARE THE ZOOM LINK.
On October 9, the Federal Emergency Management Agency (FEMA) posted a request for information (RFI) on the National Flood Insurance Program’s Floodplain Management Standards for Land Management and Use, and an Assessment of the Programs Impact on Threatened and Endangered Species and their Habitats in the Federal Register. The National Flood Insurance Program (NFIP) was created in 1968 to provide flood insurance to properties in flood zones. By opting into NFIP, communities agree to set minimum standards through zoning, ordinances and/or building codes to lessen flooding risk. FEMA issued this RFI for two reasons. First, in January 2021, the Association of State Floodplain Managers and the Natural Resources Defense Council asked FEMA to update and strengthen their current NFIP base standards. FEMA asks comments on the agency’s current floodplain management standards. Additionally, and more complex, FEMA is also considering whether to expand its list of minimum required standards for communities to encompass Endangered Species Act considerations. These changes may have significant impact on members that operate and maintain water and waterways infrastructure in flood zones and beyond. Ms. Molly Lawrence, a partner with Van Ness Feldman, has offered to brief us on the proposal on Wednesday, November 3, 2021, from 3:30pm—4:30pm to explain how it may impact water and waterways users and how you can effectively comment. Ms. Lawrence will also take questions from those on the zoom call. This invite is open to all NWC members.
NWC POLICY MEETING. NWC Legislative Policy Committee meeting (Thursday, November 4 at 4pm ET). NWC’s 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 meets face-to-face twice a year at NWC’s Legislative Summit and Annual Meeting and holds monthly video calls on the first Thursday of the month. LPC is open to all interested NWC members. If interested in serving on LPC, please reach out to Julie Ufner, NWC President.
CAUCUS MEETING. NWC Water Supply Caucus meeting (Friday, November 19 at 2pm ET). The Water Supply/Reuse Caucus is tasked with studying issues that pertain to water supply storage and reuse issues. Primary federal agencies of interest include but are not limited to the U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and the Bureau of Reclamation.
CAUCUS MEETING. NWC Navigation Caucus Meeting: The next regularly scheduled quarterly meeting is Tuesday, January 11 at 2pm ET. The Navigation Caucus focuses on opportunities and challenges to keep inland and deep draft navigation channels open and usable, as well as issues that may impact those entities that depend on these waterways. Primary federal agencies of interest include but are not limited to the U.S. Army Corps of Engineers, U.S. Coast Guard, and the Maritime Administration.
ABOUT NWC CAUCUSES. NWC caucuses play a prominent role in advising LPC on federal issue specific positions the caucuses would like NWC to consider. They are tasked with drafting up potential policy, fact sheets and letters, deliverables originate with the caucus, or be referred to the caucus by LPC. Additionally, the caucuses provide an opportunity for the membership to share best practices, network with peers, discuss relevant industry challenges and opportunities and develop thought leadership separate from federal policy discussions. While the caucuses give status reports on LPC’s monthly calls, the caucuses have free-standing meetings separate from LPC. There is no cost to belong to a NWC caucus (or multiple caucuses)—this is a member benefit.
ABOUT NWC. The National Waterways Conference is the only national organization to advocate in favor of national policy and laws that recognize the vital importance of America’s water resources infrastructure to our nation’s well-being and quality of life. Established in 1960, NWC supports a sound balance between economic and human needs and environmental and ecological considerations. Our membership represents a full spectrum of water resources stakeholders, including navigation, inland and deep draft ports and waterways, flood control associations, levee boards, waterways shippers and carriers, industry and regional associations, shipyards, dredging contractors, regional water supply districts, hydropower producers, engineering consultants and state and local governments. Interested in membership? Click here.
As always, if you have any questions, please do not hesitate to reach out to NWC. Thank you again for your support!