NWC Federal Spotlight (Sept. 16, 2022 edition)

Happy National Tradesmen Day,

Below are some recent updates about Congressional, federal agency and NWC happenings. For those of you interested in “Waters of the U.S.,” please note below that the proposed rule to revert the definition back to 1986 rules (with modifications) has been sent to the Office of Management and Budget for review. Otherwise, all eyes are on Washington DC as the clock ticks down on the 2022 fiscal year. Will they or won’t they on FY2023 appropriations. Read more below.

If you have any questions, please do not hesitate to ask. Have a wonderful weekend!

Best,

Julie

CONGRESSIONAL SPOTLIGHT

OVERVIEW/APPROPRIATIONS. Both the U.S. House of Representatives and the U.S. Senate were back for legislative business this week. First on their plate, discussing the next steps for FY2023 which starts in less than two weeks on October 1. The problem—none of the 12 FY2023 appropriations bills have been signed into law yet. If action is not taken by October 1, the federal government may shut down due to a lack of funding, not a popular decision in an election year. House and Senate leaders were hoping to come to an agreement this week on a Continuing Resolution, which would keep the federal government open to mid-December but have hit a snag. The largest obstacle to work out is whether Senator Manchin’s (D-W.Va.) energy permitting reform language will be in the CR, and if so, which chamber will move first on the CR. Earlier in the week, House Majority Leader Steny Hoyer (D-Md.) indicated that the Senate would take the lead, but other Congressional leaders have indicated that a final decision has yet to be made.

Further complicating the discussion, while the draft text for Manchin’s permitting language has yet to be released, a number of Democrats have already spoken in opposition. Sen. Bernie Sanders (I-Vt.) has already indicated he will oppose the CR if the permitting language is included (remember, in the Senate, Democrats need every Democratic senator plus 10 Republicans to vote in the affirmative to pass the CR out of the Senate. Or, if Democrats are not supportive, Manchin may need upwards of 15-20 Republicans to support his permitting language in the CR). Over 70 Democrats in the House, including 10 committee chairs, sent a letter expressing strong concerns with the potential language as well. They are asking for a “clean” CR. Concurrently, Sen. Capito (R-W.Va.), along with 38 Republicans introduced a separate permitting reform bill for consideration, the “Simplify Timelines and Assure Regulatory Transparency (START) Act.”

How this will play out is anyone’s guess except it all comes down to the sixty votes needed in the Senate to pass the CR. If Congressional leaders decide not to attach the language to the CR, they could potentially attach it to the defense authorization package before Congress adjourns the 117th Congress. Stay tuned.

WATER RESOURCES DEVELOPMENT ACT MOVES CLOSER TO THE FINISH LINE. The word on the street is that House and Senate committee staff are hard at work to build consensus on a compromise version of the House and Senate WRDA 2022 bills. While we expect a compromise version of WRDA 2022 to easily pass both chambers, at this point, we don’t have a timeline on when this will happen or how.  To see a NWC side-by-side of the passed WRDA 2022 House and Senate bills, click here.

ANALYSIS OF THE OCEAN SHIPPING REFORM ACT (courtesy of Virginia Maritime Association/Clark Hill). In June 2022, President Biden signed into law the Ocean Shipping Reform Act (P.L. 117-146)(OSRA), which changed the Federal Maritime Commission’s authority for oversight and enforcement tools. Clark Hill did a comprehensive analysis of the legislation for VMA and has graciously shared it with NWC members. Click here to read.

Congressional Hearings of Interest Next Week:

  • September 20 at 10am EDT: “The Clean Water Act at Fifty: Highlights and Lessons Learned from a Half Century of Transformative Legislation.” House Transportation and Infrastructure Committee’s Water Resources and Environment Subcommittee hearing. Click here for more information.
  • September 21 at 10am EDT: “Critical Infrastructure Preparedness and Resilience: A Focus on Water.” House Homeland Security Committee. For more information, click here.

FEDERAL SPOTLIGHT 

CEQ. FEDERAL AGENCIES REQUIRED TO TRACK EMISSIONS. In August, the White House Council on Environmental Quality released “Implementing Instructions for Executive Order 14057 Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The directive lays out directions, strategies and recommended actions for federal agencies to reach net-zero emissions economy-wide by 2050. This would include a net-zero emissions policy for Federal procurement, including a Buy Clean policy to promote the use of construction materials with lower emissions. To read the implementing instructions, click here.

DHS/CISA. REQUEST FOR INFORMATION/LISTENING SESSIONS ON THE CYBER INCIDENT REPORTING FOR CRITICAL INFRASTRUCTURE ACT OF 2022 (listening sessions Sept.-Nov. 2022/comments due Nov. 14, 2022). In March 2022, President Biden signed the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), Public Law 117-103, which requires the Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) to develop and implement regulations related to reporting of cyber incidents and ransom payments for “covered” entities (in the water sector, includes but is not limited to, chemical, commercial, manufacturing, dams, emergency services, energy, food and agriculture, transportation systems and water and wastewater systems). As part of this process, the CISA is interested in receiving public input through written comments and listening sessions on potential aspects of the proposed regulation prior to publication of the proposed rule and is issuing this RFI to receive that input. While CISA welcomes input on other aspects of CIRCIA’s regulatory requirements, CISA is particularly interested in input on definitions for and interpretations of the terminology to be used in the proposed regulations; the form, manner, content, and procedures for submission of reports required under CIRCIA; information regarding other incident reporting requirements including the requirement to report a description of the vulnerabilities exploited; and other policies and procedures, such as enforcement procedures and information protection policies, that will be required for implementation of the regulations. The listening sessions will occur face-to-face Sept.—Nov. 2022 throughout the country and written comments are due by Nov. 14, 2022. To learn more about the listening sessions, click here. To read the RFI, click here.

EPA/CORPS. WOTUS RULE SENT TO OMB FOR REVIEW. On September 12, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineer (USACE) sent a revised “Waters of the U.S.” (WOTUS) definition to the White House’s Office of Management and Budget (OMB) for review. 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 rule.  Under Executive Order 12866 on Regulatory Planning and Review, all proposed rules must be sent to OMB’s Office of Information and Regulatory Affairs (OIRA) for interagency review. While EO 12866 limits a review to 90 days, in the case of more controversial rules, the review can (unofficially) take longer before the rule is published in the Federal Register for public comment. However, since there is a related case pending before the Supreme Court, Sackett v. EPA, which asked the court to limit WOTUS jurisdiction. Since this case will be heard by the court in less than three weeks (with a decision potentially issued several months later), the OMB may finalize the rule sooner rather than later. In Feb. 2022, NWC submitted comments on the proposed rule. Click here to read our comments.

 

FEMA. FEMA SEEKS FEEDBACK ON PRIVATE-PUBLIC PARTNERSHIPS. FEMA seeks input from whole community partners on the draft “Restoration and Recovery Guide for Private-Public Partnerships.” The open comment period will conclude on Oct. 13.This guide is for local government, private sector, non-governmental organizations, community planners and whole community stakeholders with authorities to manage or provide resources for restoration and recovery. The guide provides recommendations and resources for jurisdictions to establish and maintain a private-public partnership to help plan and coordinate the restoration of community lifelines, plan and develop recovery strategies and implement recovery operations. This review period provides an opportunity to give substantive content recommendations on the draft so FEMA can refine the document before publishing the final version of the guide for whole community use. To download the document, click here. Please submit feedback to NPD-Planning@fema.dhs.gov no later than Oct. 13.

FEMA. FEMA Updates Resilience Analysis and Planning Tool. The Resilience Analysis and Planning Tool (RAPT) gives open access to data and GIS mapping to build resilience across the nation. The latest update of RAPT includes new resilience indicators, the latest data from the U.S Census Bureau and improved analysis tools. The Resilience Analysis and Planning Tool helps reveal important community characteristics with preloaded layers that display: set of 22 new, research-based community resilience indicators; new FEMA Community Resilience Index for counties and census tracts; the latest Census American Community Survey 5-year estimates (2016-2020) and latest census tract geography; new layers for considerations of equity including race, rental housing costs and broadband internet and improved analysis tools. To learn more, click here.

NWC SPOTLIGHT

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

NWC 2022 ANNUAL MEETING (IN-PERSON, Wednesday, October 26-28, 2022). NWC’s 2022 Annual Meeting is scheduled for October 26-28, 2022, in Houston, Texas. Confirmed speakers include (but are not limited to): Mr. Michael Conner, Assistant Secretary of the Army (Civil Works), U.S. Department of Defense; TBD; incoming Director of Civil Works, USACE;  and Mr. David Maurstad, Deputy Associate Administrator for Federal Insurance and Mitigation, Senior Executive of the National Flood Insurance Program, FEMA. Additionally, NWC’s Navigation Caucus will hold a free-standing caucus meeting on Wednesday, October 26. The Flood Control Caucus is sponsoring the session with Mr. Maurstad. To learn more, click here. To register, click here. 

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. More information to come.