NWC Update WRDA 2022/2022 Legislative Summit (May 4, 2022)

Good afternoon NWC members,

It is a busy week in our Nation’s capital. Congress is back in session and first out of the gate is the Water Resources Development Act of 2022 (WRDA 2022) which was marked up today in the Senate Environment and Public Works Committee (more below).

Additionally, NWC just finished a successful 2022 NWC Legislative Summit last week (click here to read a comprehensive recap). A huge thanks to our attendees, sponsors and speakers—we could not have done it without you!

  • As part of the 2022 Legislative Summit, NWC worked closely with Dena Horton (PNWA) and Steven Burns (Balch and Bingham) on a NWC topic of interest—the January 2022 USACE/NOAA memo on environmental baselines in water and waterways maintenance projects for a policy brief. Click here to read the brief.
  • Moreover, at the Legislative Summit, it was decided to create an Environmental Justice working group. If you are interested in serving on this group, please let Julie Ufner, NWC president, know.

We are now gearing up for our 2022 Annual Meeting in Houston, Texas on October 26-28, 2022. More information, including registration, to come soon.

As always, if you have any questions, please let me know.

Best, Julie

WRDA 2022 PASSES OUT OF SENATE COMMITTEE

On Wednesday, May 4, 2022, the Senate Environment and Public Works Committee approved via voice vote their version of WRDA 2022, a biennial bill that authorizes U.S. Army Corps of Engineers studies, projects, modifications, and policy changes. According to committee staff, the bill is very project focused, and lighter on policy than previous WRDA bills, since provisions are still being implemented/completed from prior WRDA measures and authorizes 15 projects; 21 chief’s reports (with four more potentially coming); and 26 new feasibility studies for a total of almost $40 billion in authorizations. As with previous WRDAs, the bill was carefully negotiated, is bipartisan, and contains no controversial provisions.

Please be advised that committee staff indicated that no amendments on the Senate floor will be accepted unless agreed to by both Democratic and Republican EPW leadership. In a NWC’s letter to the EPW committee, we applaud the committee for keeping their promise to move WRDA on a two-year cycle and ask for further discussion on several provisions in the bill.

While NWC is still reading and analyzing the 212-page WRDA 2022 bill, we can offer some initial high-level reads, as well as flag several provisions of potential interest:

TITLE I—GENERAL PROVISIONS

  • Sec. 101. Scope of Feasibility Studies: Allows the Corps to work with non-federal sponsors (NFS) at their request to formulate alternatives for multiple project purposes (including secondary purposes of water supply, conservation, drought risk reduction).
  • Sec. 102. Shoreline and Riverbank Protection and Restoration Mission. In the last several days, this section has generated significant discussion within the membership on purpose and intent. This provision is modeled after a section in the Shoreline Health Oversight, Restoration, Resilience, and Enhancement (SHORRE) Act, which proposes to elevate coastal restoration as the primary mission of the Corps. Instead of raising it to a mission, the language in WRDA 2022 states that shoreline and riverbank protection and restoration will be a “priority” of USACE. NWC is working closely with our Legislative Policy Committee, as well as sister organizations and Congressional staff to determine if and how the provision would impact other USACE primary and secondary business lines.
  • Sec. 103. Inland Waterways Projects. This section would make permanent the federal/NFS cost share of 75/25 for Inland Waterways Trust Fund projects starting on October 1, 2022.
  • Sec. 104. Protection and Restoration of Other Federal Land Along Rivers and Coasts. This provision allows the Corps to undertake, at 100% federal cost, projects on land administered by other federal agencies. Note: this is a provision in the SHORRE Act.
  • Sec. 105. Policy and Technical Standards. This section directs the Corps civil works program to update its publications every five years.
  • Sec. 106. Planning Assistance to the States. This section updates planning assistance offered to the states and prioritizes assistance to address both inland and coastal life safety risks. Additionally, a staff member in each Corps district will be designated to provide this assistance.
  • Sec. 107. Floodplain Management Services. USACE will provide flood risk reduction assistance to both states and NFS to address flood hazards from snags/debris in waterways.
  • Sec. 108. Workforce Planning. Allow USACE to partner with various entities to focus on building out the agency’s workforce.
  • Sec. 109. Credit In Lieu of Reimbursement. This section aims make it easier for NFS to get payment of credit earned at one project by applying the credit earned at that project to reduce their cost-share at another project.
  • Sec. 110. Coastal Cost Calculations. Would broaden provisions to benefit coastal communities in seismic hazard zones.
  • Sec. 111. Advance Payment in Lieu of Reimbursement for Certain Federal Costs. Would allow for the Corps to provide advance payment of certain Fed costs related to the acquisition of land, easements, rights-of-way, and relocations.
  • Sec. 112. Use of Emergency Funds. Would allow NFS to undertake emergency repair/restoration activities for federally authorized hurricane or shore protection projects. Additionally, USACE can provide payment for the federal share in the form of an advance or reimbursement.
  • Sec. 113. Research and Development. This section creates a new research and development account for USACE and authorizes funding for forecasting water level models, extreme weather events and other natural disasters in the Great Lakes.
  • SEC. 114. TRIBAL AND ECONOMICALLY DISADVANTAGED COMMUNITIES ADVISORY COMMITTEE. Creates an advisory committee under the Federal Advisory Committee Act (FACA) to develop and make recommendations to the ASACW and USACE on activities and actions the agency can take to ensure more effective delivery of water resource development projects, programs and other assistance to economically disadvantaged communities and Indian Tribes. The ASACW shall make the appointments and include 5 individuals from organizations with expertise in environmental policy, rural water resources, economically disadvantaged communities, tribal or civil rights and 5 NFS individuals.
  • Sec. 115. Non-Federal Interest Advisory Committee. The bill proposes a FACA advisory committee to advise ASACW and USACE on activities and actions that should be undertaken by USACE to ensure more effective and efficient delivery of projects, programs, etc.  The 13 member NFI advisory committee will be appointed by ASACW and be comprised of:
    • Five NFI members (one from each example): a navigation project (inland harbor), navigation project (harbor),  flood risk management project, coastal storm risk management project, and an aquatic ecosystem restoration project
    • Five NFS (one form each example): inland waterborne transportation, water supply, recreation, hydropower, and emergency preparedness (including coastal protection)
    • Three association/organization representations (1 each) from conservation, environmental policy and rural water resources.
  • Sec. 116. Underserved Community Harbor Projects. This provision would promote dredging projects in underserved community harbors for the purpose of sustaining water-dependent commercial and recreation activities.
  • Section 117. Corps of Engineers Western Water Cooperative Committee. Would have the Corps establish a Western Water Cooperative Committee, with the aim of ensuring Corps projects are operated in a manner consistent with Western state water rights/water laws. The committee will be comprised of the ASACW (or a designee), the Chief of Engineers, 1 representative 18 western states (appointed by the Governor of each state), 1 representative with legal experience from each of those 18 states to be appointed by the Attorney General of those states, and 1 employee from each of the impacted regional offices of the bureau of Indian Affairs. The states are Alaska, Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming.
  • Sec. 118. Updates to Certain Water Control Manuals. Would authorize the Corps to update water control manuals at the request of the Governor of a state in drought, with a focus on water supply projects.
  • Sec. 119. Retention of Recreational Fees. Authorizes the Corps to retain not less than 80 percent of the recreation user fees collected at a Corps recreation site are utilized at that site (instead of such funds going to the General Treasury).
  • Section 120. Relocation Assistance. Temporary relocation benefits for owners of residential dwellings involved in a Corps project using nonstructural measures.
  • Sec. 121 Reprogramming Limits. Adjusts the Corps’ budgetary reprogramming limits for projects, studies, or activities in the O&M and investigations budgetary accounts.
  • Sec. 122. Lease Durations. This section requires the Corps to issue guidance regarding when a lease duration of more than 25 years is appropriate.
  • SEC. 123. SENSE OF CONGRESS RELATING TO POST-DISASTER REPAIRS. Sense of Congress that the Corps should, in permitting and funding post- disaster repairs, repair assets to the project design levels or above project design levels if the original project design is outdated.
  • SEC. 124. PAYMENT OF PAY AND ALLOWANCES OF CERTAIN OFFICERS FROM APPROPRIATION FOR IMPROVEMENTS. This is a pay and allowance provision for certain Corps members.
  • SEC. 125. REFORESTATION. This section would encourage wetland and swamp restoration in ecosystem restoration and flood and coastal storm risk management projects.
  • SEC. 126. USE OF OTHER FEDERAL FUNDS.  Would allow NFIs with a study or project (including under the Continuing Authorities Program) to use funds from another agency to meet the non-federal share of the cost of the project. The funds from the other agency must be “similar or complementary” to the purpose of the study or project.
  • SEC. 127. NATIONAL LOW-HEAD DAM INVENTORY. Instructs USACE to inventory all low-head dams in the U.S. and periodically update the list after consultation with relevant federal and state agencies.
  • SEC. 128. TRANSFER OF EXCESS CREDIT. Would allow a credit for a study or project with multiple non- Federal sponsors to be applied to the non-Federal share of the cost of a study or project of any of the sponsors.
  • SEC. 129. NATIONAL LEVEE RESTORATION. Modifies the definition of a levee under Section 9002(13) of WRDA 2007 to include “improvement of a levee” and “increase resiliency to extreme weather events.” Additionally, the provision instructs ASACW to prioritize assistance to economically disadvantaged communities.
  • SEC. 130. INLAND WATERWAYS REGIONAL DREDGE PILOT PROGRAM. This section authorizes the Corps to establish a pilot program to award dredging contracts of up to 5 years for projects on inland waterways. It is similar to a dredge pilot program created in WRDA 2018.
  • SEC. 131. FUNDING TO PROCESS PERMITS. Amends Section 214 of WRDA 2000 to expedite evaluation of a permit (including the evaluation of an instrument for a mitigation bank) if the non-federal public entity, public-utility company, natural gas company, or railroad carrier applying for the permit is the sponsor of the mitigation bank. The provision goes on to state that the use of credits generated by the mitigation bank established using expedited processing shall be limited to current and future projects and activities of the entity, company, or carrier for a public purpose, except in the case of a non-federal public entity, not more 25 percent of the credits may be sold to other public and private entities.
  • SEC. 132. NON-FEDERAL PROJECT IMPLEMENTATION PILOT PROGRAM. Would provide greater flexibility to Section 1043, to allow a non-Federal sponsor to construct smaller portions (a “discrete segment”) of a project under the Non-Federal Project Implementation Pilot Program.
  • SEC. 133. COST SHARING FOR TERRITORIES AND INDIAN TRIBES. Would expand the scope of the waiver of local cost-sharing requirements for territories and tribes for studies and projects to include watershed assessments and would apply the waived amount to the non-Federal share of study costs, rather than to the total study cost.
  • SEC. 134. WATER SUPPLY CONSERVATION. This would make permanent the authority of the Corps to address drought emergencies under the Water Supply Conservation provisions of WRDA 2016. Also it would explicitly allow the use of natural/nature-based features to reduce drought risk.
  • SEC. 135. CRITERIA FOR FUNDING OPERATION AND MAINTENANCE OF SMALL, REMOTE, AND SUBSISTENCE HARBORS. Would have the Corps focus more attention on small, remote, and subsistence harbors by having the Corps develop criteria for the annual evaluation and ranking of maintenance dredging requirements for such harbors, and reporting to Congress the ranking of projects in such harbors.
  • SEC. 136. PROTECTION OF LIGHTHOUSES. Would expand the scope of public works that could be addressed (through construction, repair, restoration, or modification) under the Flood Control Act of 1946, to include lighthouses.
  • SEC. 137. EXPEDITING HYDROPOWER AT CORPS OF ENGINEERS FACILITIES. This provision encourages USACE to assess opportunities to increase hydroelectric power at existing USACE sites and develop new hydroelectric at nonpowered USACE water resource development projects.
  • SEC. 138. MATERIALS, SERVICES, AND FUNDS FOR REPAIR, RESTORATION, OR REHABILITATION OF CERTAIN PUBLIC RECREATION FACILITIES. This would make it easier for a non-Federal interest to provide the Corps with materials, services, and funds from a non-Federal interest to repair, restore, or rehabilitate a public recreational facility at a Corps reservoir.
  • SEC. 140. LEASE DEVIATIONS. This section reminds the Corps to implement Sec. 153 of WRDA 2020 (in the Corps WRDA 2020 implementation, they indicated that “no additional guidance is needed”).
  • SEC. 141. COLUMBIA RIVER BASIN FLOOD RISK MANAGEMENT. Encourages the Corps to renegotiate the Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin between Canada and the United States.
  • SEC. 142. CONTINUATION OF CONSTRUCTION. This section temporarily lifts the Sec. 902 (WRDA 1986) cap for a period of three years. While USACE does not have to receive Congressional approval for NFS going beyond their cap, the ASACW must submit a post authorization change report to both EPW and the House’s Transportation and Infrastructure Committee.

TITLE II—STUDIES AND REPORTS

This section focuses on studies and reports and a couple are highlighted below:

  • Sec. 205. NEPA REPORTING. This section requires the Corps to track and provide an annual report to Congress on the timeframes for completing environmental reviews for water resources development projects which contains the following: the number of project studies which a categorical exclusion was used and/or a decision is pending; the number of project studies for which an environment assessment was issued (broken down by whether a finding of no significant impact was based on mitigation); the length of time the Corps took to complete each environmental assessment; the number of project studies that still have an environmental assessment being drafted; the length of time it took the Corps to complete each environmental impact statement, etc.
  • SEC. 206. GAO AUDIT OF PROJECTS OVER BUDGET OR BEHIND SCHEDULE. This section requires the Comptroller General to generate a report examining the factors and conditions leading to ongoing water resources development projects that are over budget or behind schedule. The projects studied must exceed the original total cost of the project by at least $50m and the current estimation completion date exceeds the original completion date by not less than 5 years.
  • SEC. 207. GAO STUDY ON PROJECT DISTRIBUTION. This section requires the Comptroller General to generate a report analyzing the geographic distribution of annual and supplemental funding for water resources development projects carried out by the Corps over the previous 10 fiscal years and the factors contributing to that distribution.
  • SEC. 209. GAO REVIEW OF CORPS OF ENGINEERS MITIGATION PRACTICES. This section requires the Comptroller General to generate a report that reviews the water resources development project mitigation practices of the Corps. The evaluation will look at the extent USACE districts consistently implement the Corps 2008 rule on “Compensatory Mitigation for Losses of Aquatic Resources.”
  • SEC. 213. INVESTMENTS FOR RECREATION AREAS. This section requires the Corps submit a report on investments needed to support recreational activities that are part of authorized water resources development projects.
  • SEC. 214. WESTERN INFRASTRUCTURE STUDY. The ASACW is instructed to conduct a comprehensive study to evaluate the use of natural- or nature-based features as or upstream of reservoirs for the purpose of changing weather conditions, mitigating the risk of drought or floods, including the loss of storage capacity due to sediment accumulation, increasing water supply or aquatic ecosystem restoration. The study encompasses all reservoirs owned and operated by USACE and reservoirs where USACE has flood control responsibilities. This provision requires the Corps consult with a wide range of stakeholders.

TITLE: III—DEAUTHORIZATIONS, MODIFICATIONS, AND RELATED PROVISIONS

  • SEC. 305. SPECIAL RULE FOR CERTAIN BEACH NOURISHMENT PROJECTS. This section directs the Corps, for specified projects, to fund the incremental increase in project cost that results from a legal requirement to use a sediment source that is not the least-cost option.
  • SEC. 311. REHABILITATION OF EXISTING LEVEES. This section extends the authority provided by section 3017 of WRRDA 2014 (33 U.S.C. 3303a note; Public Law 113-121) from 10 to 20 years.
  • SEC. 313. REHABILITATION OF CORPS OF ENGINEERS CONSTRUCTED PUMP STATIONS. This section amends section 133 of WRDA 2020 (33 U.S.C. 2327a) to allow the Corps to rehabilitate non-federal pump stations if they are integral to the operation of a broader Corps project for flood or coastal storm risk management.
  • SEC. 332. TIMELY REIMBURSEMENT. This section requires the Corps to reimburse non-Federal interests for advanced funds exceeding the non-Federal share of construction costs as soon as practicable after the completion of each individual contract for a project for navigation authorized by section 1401(1) of the WIIN Act.
  • SEC. 343. WATER SUPPLY STORAGE REPAIR, REHABILITATION, AND REPLACEMENT COSTS. This provision states that all annual operation and maintenance costs for municipal and industrial water supply storage shall be reimbursed from state or local interests on an annual basis, and all repair, rehabilitation and replacement costs shall be reimbursed from state or local interests 1). Without interest, during construction of the repair, rehabilitation, or replacement, 2) with interest, in lump sum on the completion of the repair, rehabilitation or replacement, or 3). At the request of the state or local interest, with interest, over a period of no more than 25 years.
  • SEC. 344. NON-FEDERAL PAYMENT FLEXIBILITY. This section gives USACE flexibility to waive the accrual of interest for any non-federal cash contribution up to year if the ASACW determines that the waiver will help the NFI to make future contributions. Only one waiver per project is permitted.

TITLE IV—WATER RESOURCES INFRASTRUCTURE

  • SEC. 407. FORECAST-INFORMED RESERVOIR OPERATIONS. Since FIRO has been a discussion of interest with NWC members, I thought you would find this provision interesting. The ASACW is authorized to carry out a research study pilot program at one or more dams owned and operated by USACE’s North Atlantic Division to assess the viability of using FIRO in the eastern U.S.

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