NWC FEDERAL SPOTLIGHT (Sept. 8, 2023)

NWC Members,

The Senate just returned this week, and the House is scheduled to return next week, and this fall is going to be a doozy for them. First up on their plate, what to do with FY2024 appropriations? Read all about it in our Congressional Spotlight.

On the administration and federal agency front in our Federal Agency Spotlight, there is a lot of stuff going on from meetings, rules and regulations and guidance across a host of agencies. The biggest is that the new WOTUS rule was finalized today. Also, please be aware that NWC submitted comments on three Endangered Species Act proposed rules last month. A huge thanks to NWC’s Legislative Policy Committee and Jon Pawlow for their work on this letter!

Under our NWC Spotlight, we have a couple of reminders on the upcoming Annual Meeting (remember, the room block ends on Sept. 18!) and our upcoming Legislative Policy Committee call, which has been rescheduled from Sept. 7 to Thursday, Sept. 14 at 3pm ET.

Finally, we are pleased to introduce our three newest members –Port of Oakland, Pajaro Regional Flood Management Agency and the Association of California Water Agencies as new NWC members. Please read all about them under our New Member Spotlight and be sure to say “Hi.”

As always, if you have any questions, ideas or comments, please do not hesitate to contact us.

Best, Julie

NEW MEMBER SPOTLIGHT

NWC WELCOMES PORT OF OAKLAND AS A NEW MEMBER! The Port of Oakland was established in 1927 on the East shore of the San Francisco Bay. As a world-class international cargo and transportation hub, we have pioneered shipping innovations to expedite the movement of goods worldwide. Whether adopting specialized intermodal containers, dredging our channels to accommodate ever-larger vessels, or improving adjacent railroad facilities for greater efficiencies, we continue to be a leader in the Port industry.

NWC WELCOMES NEW MEMBER PAJARO REGIONAL FLOOD MANAGEMENT AGENCY! The Pajaro Regional Flood Management Agency (PRFMA) is a joint powers authority of the County of Santa Cruz, Santa Cruz County Flood Control and Water Conservation Zone No. 7, the County of Monterey, the Monterey County Water Resources Agency, and the City of Watsonville. Formed in 2021, the agency will plan, finance, and implement projects and programs to reduce flood risk from the lower Pajaro River and its tributaries in Santa Cruz and Monterey Counties.

  • NWC Liaison: Mr. Mark Strudley, Executive Director, Pajaro Regional Flood Management Agency at mark.strudley@prfma.org

NWC WELCOMES THE ASSOCIATION OF CALIFORNIA WATER AGENCIES AS A NEW MEMBER! The Association of California Water Agencies (ACWA) is the largest statewide coalition of public water agencies in the country. Our more than 460 public agency members collectively are responsible for 90% of the water delivered to cities, farms and businesses in California. For more than a century, our mission has been clear: To provide comprehensive leadership, advocacy and resources for California public water agencies to ensure a high quality and reliable water supply in an environmentally sustainable and fiscally responsible manner.

  • NWC Liaisons: Mr. Dave Eggerton, Executive Director, ACWA at daveE@acwa.com and/or Mr. David Reynolds, Director of Federal Relations at davidr@acwa.com.

CONGRESSIONAL SPOTLIGHT

OVERVIEW: The Senate returned earlier this week and the House of Representatives returns next week to a packed fall Congressional schedule. First and most important on their plate: closing out FY2023 and starting FY2024 but this may be easier said than done, especially with less than 20 legislative days left before the current fiscal year ends.

The path to approve FY2024 appropriations remains unclear. The Senate is gearing up next week to debate appropriations bills on the floor under regular order for the first time in several years. This marks the beginning of what is expected to be a challenging appropriations season, with the looming possibility of a government shutdown. The key players in this fiscal showdown are House Republicans, the Senate, and the White House, but the path to a resolution remains uncertain. Senate Majority Leader Chuck Schumer has scheduled a procedural vote for Monday to pave the way for the Senate’s version of the FY2024 MilCon-VA, Agriculture, and Transportation-HUD bills. Notably, these Senate bills include more substantial funding than their House GOP counterparts and lack the contentious provisions approved by the House Appropriations Committee. The House, on the other hand, is scheduled to vote on a $886 billion dollar defense spending bill next week—an estimated 300 amendments have been proposed.  Also, outstanding is also how the chambers will address the supplemental appropriation bill for recent disasters and related Ukraine aid.

Why do appropriations bills matter? The Federal fiscal year 2023 is set to conclude on September 30, with FY2024 commencing on October 1. However, as of this date, none of the 12 appropriations bills required to fund the government for the upcoming fiscal year have been signed into law. This situation is not unprecedented, as in recent decades, it has become increasingly common for Congress to face challenges in passing all appropriations bills by the September 30 deadline. Since the 1990s, only once have all 12 appropriations bills been enacted by the end of the fiscal year due to partisan divisions, disputes over funding priorities, political gridlock and in some cases, broader policy debates that become intertwined with appropriations. Click here to see the current status of appropriations bills.

What are appropriations bills? Appropriations bills are essential pieces of legislation that allocate funding to various government agencies and programs for the upcoming fiscal year. These bills cover a wide range of sectors, including defense, education, healthcare, infrastructure, and many others. There are 12 appropriations bills that cover all of the federal government’s agencies and operations.

What happens if appropriations bills are not signed into law? The failure to pass appropriations bills by September 30 can have significant consequences. In the absence of a budget or continuing resolution, government agencies may experience disruptions in their operations. Federal employees may face furloughs, essential services can be affected, and contractors may experience delays in payments.

Possible outcomes: Given the historical precedent, a FY2024 appropriations package will eventually pass but how and when are two outstanding questions.

  • At this point, we are hearing that Senate leaders are prepping a continuing resolution (CR) to temporarily fund the federal government at FY2023 levels while negotiations continue. This approach prevents a shutdown but limits the ability of government agencies to make new investments or modify existing funding priorities. CRs can be short, or they can be long, going into the next year. In the case of this year, both House and Senate leaders have expressed support for a short term CR going into the November/December timeframe. However, please note that House Freedom Caucus members have objected to a CR unless it addresses their specific priorities, which is a non-starter with the Democrats, and the length of the CR is also in question.
  • Some members of Congress though are pushing for a partial or full government shutdown, at least in the short-term, to push for further spending cuts. In a partial shutdown, only the agencies or departments for which funding has not been approved or extended are impacted. That means that some parts of the government may continue to operate. With a full shutdown, all non-essential government activities and services would cease. Non-essential employees would be furloughed but employees working in national defense, law enforcement, air traffic control, border security and some healthcare positions are considered essential. Under a shutdown, national parks and museums may close, and many federal government services may not be available.
  • Ultimately, Congress may pass an omnibus package which is a compilation of appropriations bills that have not be enacted into law yet but omnibus bills usually come at the 11th hour and expect this one to be no different. There will likely be one or more CRs before then.

However, whatever direction Congress takes, they also have an added complication. Under the debt ceiling agreement enacted earlier this year, Congress must complete all of its FY2024 work no later than midnight on Dec. 31, or else face an automatic 1 percent across-the-board spending cut.

Additionally, Congress has a number of programs that expire on Sept. 30 including but not limited to the National Flood Insurance Program, Federal Aviation Administration priorities, Farm Bill, federal counter-drone authorities, National Defense Authorization Act, and more.

Pending hearings of interest next week

FEDERAL AGENCY SPOTLIGHT

ADMINISTRATION

White House instructs federal agencies to reduce telework: In August, the White House urged federal agencies to increase in-person work this fall while still allowing for telework. WH Chief of Staff Jeff Zients emphasized building culture, trust, and future leadership through face-to-face interactions, with plans to bring back federal workers by November. This shift reflects evolving telework policies amid concerns about agency service backlogs and commercial real estate markets. According to a report by the Government Accountability Office (GAO), in January, February and March of this year, 17 federal agency buildings were at 25% or less. However, there has been pushback from unions, who said they and the members they serve, should be involved in this decision.

DEPARTMENT OF TRANSPORTATION

Waiver of Buy America Requirements for De Minimis Costs and Small Grants. The Department of Transportation (DOT) seeks to maximize the use of American-made products and materials in all federally funded projects as part of the Biden-Harris Administration’s implementation of the Build America, Buy America Act (BABA), which was included in the historic Bipartisan Infrastructure Law (BIL). In this notice, DOT is taking action to finalize a limited waiver of Buy America requirements for de minimis costs and small grants. Based on public comments from stakeholders, this final waiver is narrower than what DOT had first proposed on November 4, 2022. The waiver will allow DOT and its assistance recipients to focus their domestic sourcing efforts on products that provide the greatest manufacturing opportunities for American workers and firms and reduce delays in the delivery of important transportation infrastructure projects that provide jobs and promote economic growth. The waiver is applicable to awards that are obligated on or after August 16, 2023.

DEPARTMENT OF HOMELAND SECURITY

Notice of Cybersecurity and Infrastructure Security Agency Cybersecurity Advisory Committee Meeting (Virtual, Sept. 13, 2023). CISA will hold a CISA Cybersecurity Advisory Committee (CSAC) Quarterly Meeting virtually on Wednesday, September 13, 2023. This meeting will be partially closed to the public. Members of the public may join the public portion of the meeting by teleconference. For more information: https://www.govinfo.gov/content/pkg/FR-2023-08-17/html/2023-17736.htm.

ENVIRONMENTAL PROTECTION AGENCY

Good Neighbor Environmental Board (Hybrid meeting, Sept. 21, 2023). Under the Federal Advisory Committee Act, the Environmental Protection Agency (EPA) gives notice of a public meeting of the Good Neighbor Environmental Board (GNEB). The purpose of this meeting is for the board to continue developing its working draft of the 20th comprehensive report on water and wastewater infrastructure issues and challenges along the U.S.-Mexico border region.

New “Waters of the U.S.” definition, final rule effective Sept. 8.  The new “Waters of the U.S.” (WOTUS) definitional final rule goes into effect on Sept. 8 with its publication in the Federal Register. For more information about the rule, read NWC’s Aug. 29, 2023 news alert on the new rule.

Local Government Advisory Committee (LGAC) and Small Communities Advisory Subcommittee (SCAS) Meeting (virtual Meeting on Sept. 29, 2023).  The LGAC and SCAS will meet via a virtual meeting on Sept. 29 to will discuss several priority issues at EPA, including recommendations on PFAS risk communication and the development of a toolkit for local governments, recommendations on land use and electrifying transportation in small communities, and other topics including environmental justice. Meeting materials and recommendations will be posted closer to the meeting. To read the Federal Register notice, click here or here for the meeting materials.

New National Enforcement and Compliance Initiatives Released. On Aug. 17, the U.S. Environmental Protection Agency released its FY 2024 – 2027 National Enforcement and Compliance initiatives which lay out the agency’s priorities in the following areas: mitigating climate change, addressing exposure to PFAS, and protecting communities from carcinogenic coal ash contamination, as well as strengthen the agency’s efforts to address hazardous air pollution, continue existing initiatives focused on providing safe drinking water and reducing the risk of deadly chemical accidents. On PFOA and PFOS, the report notes the following, “if EPA designates PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), this NECI would focus on implementing EPA’s PFAS Strategic Roadmap and holding responsible those who significantly contribute to the release of PFAS into the environment, such as major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties. If PFOA and PFOS are listed as hazardous substances, OECA does not intend to pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments, much as OECA exercises CERCLA enforcement discretion in other areas.”

FEDERAL EMERGENCY MANAGEMENT AGENCY

Technical Mapping Advisory Council Meeting (In person with virtual, Sept. 19-20, 2023). The Federal Emergency Management Agency (FEMA) Technical Mapping Advisory Council (TMAC) will hold an in-person public meeting with a virtual option on Tuesday, September 19, 2023, and Wednesday, September 20, 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 the content of the 2023 TMAC Annual Report.

Preparedness Grants: Port Security Grant Program, agency information collection activities and new form (Comments due Nov. 6, 2023). The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on an extension, with change, of a currently approved information collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, this notice seeks comments concerning the information collection activities required to administer the Port Security Grant Program (PSGP) and an additional new form to facilitate extension requests.

FEDERAL MARITIME COMMISSION

Request for information-on-information collection on ocean common carrier and marine terminal operator agreements (comments due Oct. 23, 2023). The Federal Maritime Commission (Commission) invites comments on the information collection related to ocean common carrier and marine terminal operator agreements subject to the Shipping Act of 1984 as part of our continuing effort to reduce paperwork and respondent burden required by the Paperwork Reduction Act of 1995. This notice announces a renewal of an existing collection and includes an update to FMC-150.

Request for information on questions related to maritime data transmission, accessibility and accuracy (Comments due by Oct. 16, 2023). The Federal Maritime Commission (Commission) seeks public comment on questions related to maritime data transmission, accessibility, and accuracy. Information received in response to this request will supplement information gathered during the public meetings of the Maritime Transportation Data Initiative and to better inform the Commission about commercial activities. For more information: https://www.govinfo.gov/content/pkg/FR-2023-08-16/html/2023-17593.htm

MARTIME ADMINISTRATION

U.S. Maritime Transportation System National Advisory Committee Meeting (Sept. 20-21, 2023; DOT Conference Center at 1200 New Jersey Ave. SE, Washington, DC 20590). The Maritime Administration (MARAD) announced a public meeting of the U.S. Maritime Transportation System National Advisory Committee (MTSNAC) to develop and discuss advice and recommendations for the U.S. Department of Transportation on issues related to the marine transportation system. The meeting will be open to the public.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Interagency Marine Debris Coordinating Committee Meeting (virtual, Sept. 26, 2023). NOAA’s Interagency Marine Debris Coordinating Committee (IMDCC) will hold a virtual meeting on Sept. 26, 2023 from 2:00pm—3:00pm ET to discuss Federal marine debris activities, with a particular emphasis on the topics identified in the section on Matters to Be Considered. The open meeting will include a presentation from the NOAA Marine Debris Program and the Environmental Protection Agency’s Trash Free Waters Program on the Report on Microfiber Pollution required by section 132 of the Save Our Seas 2.0 Act (Pub. L. 116-224). On behalf of the IMDCC, Meridian

Institute will provide information on the process to create new IMDCC recommendations on addressing marine debris. The agenda topics described are subject to change. The latest version of the agenda will be posted at https://marinedebris.noaa.gov/our-work/IMDCC.

OFFICE OF MANAGEMENT AND BUDGET

Guidance for Grants and Agreements (Effective Oct. 23, 2023). The Office of Management and Budget is revising the OMB Guidance for Grants and Agreements. The revisions are limited in scope to support implementation of the Build America, Buy America Act provisions of the Infrastructure Investment and Jobs Act and to clarify existing provisions related to domestic preferences. This guidance is effective on Oct. 23, 2023.

U.S. ARMY CORPS OF ENGINEERS

Request for Project Proposals Pursuant to the Water Resources Development Act of 2020, Pilot Program for Continuing Authority Projects in Small or Disadvantaged Communities–Extension of Time To Submit Proposals (Proposals due by Oct. 20, 2023/Written proposals by Nov. 19, 2023). Section 165 of the Water Resources Development Act of 2020 directs the Secretary of the Army to implement a pilot program for carrying out projects under a continuing authority program for economically disadvantaged communities at 100% Federal cost. The Department of the Army is requesting pilot project proposals. The Secretary is authorized to select up to 20 pilot projects. Proposals previously submitted do not need to be resubmitted.

Expanding Beneficial Use of Dredged Material in the USACE. On Aug. 28, USACE released a member on “Expanding Beneficial Use of Dredged Material in the USACE.” Building on a Jan. 25, 2023 notice on LTG Scott Spellmon’s philosophy that USACE beneficially use 70% of its dredged material by the year 2030, this memo is intended to clarify “dredged material placement activities shall be classified as beneficial use and how to capture this information in the USACE data systems” among other goals.

U.S. COAST GUARD

National Commercial Fishing Safety Advisory Committee Draft Recommendations to USCG (Comments due Nov. 24, 2023). The Coast Guard announces the availability of recommendations from the National Commercial Fishing Safety Advisory Committee. The Committee met in May 2023 and sent five recommendations to the Secretary of Homeland Security. The U.S. Coast Guard issues this Notice as the mechanism for receiving public comments and requests public comments on the recommendations. Comments will be accepted until Nov. 24, 2023. Comments will be accepted through the Federal Decision Making Portal at www.regulations.gov in Docket # USCG-2023-2345. To read the Federal Register notice, click here.

U.S. COMMITTEE ON THE MARINE TRANSPORTATION SYSTEM

Proposed National Guidance for Industry on Responding to Munitions and Explosives of Concern in U.S. Federal Waters (Comments due by Sept. 25, 2023). This notice announces the availability of a draft guidance document, the National Guidance for Industry on Responding to Munitions and Explosives of Concern in U.S. Federal Waters. The U.S. Committee on the Marine Transportation System invites public comment on the draft guidance. The draft guidance can be viewed through the U.S. Committee on the Marine Transportation System’s website at https://www.cmts.gov/topic-offshore-energy/. You may submit comments, identified by docket number DOT-OST-2023-0117, using the Federal eRulemaking Portal at https://www.regulations.gov. Follow the instructions for submitting comments. Comments are due by Sept. 25, 2023.

NWC SPOTLIGHT

2023 Annual Meeting (October 2-4, 2024): Room block ends Sept. 18/Connor speaking time updated.  Just a quick reminder that the hotel room block ends on Sept. 18 for NWC’s Annual Meeting in Sacramento, Calif. on Oct. 2-4, 2023. Furthermore, a new agenda was posted yesterday. Please note that ASACW Michael Connor is now scheduled to speak on Wednesday, Oct. 4 before we adjourn for the mobile tour. Find out more here. Finally, there are limited sponsorships still available even if you have already registered for the meeting!

NWC Legislative Policy Committee Meetings. For those of you interested in federal legislative and regulatory issues, NWC’s Legislative Policy Committee (LPC) meets monthly to discuss the latest in DC. Julie Ufner will normally give a high-level overview about what is going on in DC before opening it up to member shares about issues they are working on.  Normally, the meeting is the first Thursday of the month at 4pm, however, in September (and likely October), the meeting is scheduled for the second Thursday of the month at 3pm ET. If you are interested in participating, and have not received that calendar invite, let Julie Ufner (julie@waterways.org) know.