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The 115th Congress is deliberating two omnibus water authorization bills: —H.R. 8, the Water Resources Development Act of 2018 (WRDA 2018), and S. 2800, the Senate's amendment in the nature of a substitute to H.R. 8, titled America's Water Infrastructure Act of 2018 (AWIA 2018).
For the 115th Congress, deliberations on the two bills include discussions of the scope of water issues to be addressed and how the legislation would influence federal and nonfederal investments in water infrastructure. Congressional discussions have included altering how the U.S. Army Corps of Engineers (USACE) delivers navigation, flood risk reduction, and aquatic ecosystem restoration studies and construction projects; USACE reports a $96 billion civil works construction backlog. There is some interest in altering how USACE is structured and in modifying its operations and delivery of projects. In the Senate, deliberations also have focused on drinking water and water quality issues facing communities. Issues include infrastructure needs and the federal role and options for funding projects, water quality regulatory compliance flexibility and affordability, and technology innovation, among others.
WRDA 2018 is focused primarily on authorizing water resource projects and activities of USACE and dam and levee safety programs. AWIA 2018 includes USACE provisions and dam and levee safety provisions, as well as provisions on a range of other topics, including the following:
USACE Provisions. Both bills would authorize USACE to conduct new studies and construct new projects, modify and extend existing project and program authorizations, and alter deauthorization authorities. Both bills include provisions that would require studies of USACE civil works structure and efficiency. WRDA 2018 also would require a study of the agency's budget processes; AWIA 2018 would establish a five-year budget process for the agency and its districts. Both bills also include provisions on USACE permissions and permits for nonfederal activities and nature-based alternatives and projects. AWIA 2018 would extend the innovative finance authority, the Water Infrastructure Finance and Innovation Act (WIFIA; P.L. 113-121, Title V, Subtitle C), and would require a study of the existing impediments to USACE implementation. AWIA 2018 includes a larger number and broader set of provisions related to specific USACE projects than WRDA 2018.
EPA Provisions. AWIA 2018, primarily Title V, would address various EPA-administered water quality and infrastructure programs. Title V would amend the Clean Water Act (CWA) for various purposes (e.g., to reauthorize grants for certain water treatment projects, authorize integrated compliance planning for municipalities, and require EPA to promote the use of green infrastructure). Further, it would specify that no CWA permit is required for discharges from a water transfer, with the exception of pollutants introduced by the water transfer activity itself. Among Safe Drinking Water Act amendments, AWIA 2018 would make several revisions to the Drinking Water State Revolving Fund program, and it would formally authorize EPA's WaterSense program. AWIA 2018 would amend the WIFIA to authorize special terms for loan assistance provided to state Clean Water and Drinking Water State Revolving FundFor the 115th Congress, some of the issues related to these deliberations on the two bills include the scope of water issues to be addressed, how the legislation would affect federal spending, and how the legislation would affect federal and nonfederal investments in water infrastructure. In addition, there is some interest in altering how the USACE is structured and in modifying its operations and delivery of water resource projects.
Both H.R. 8 and S. 2800 include numerous provisions that address USACE-related activities. For example, both bills would authorize USACE to conduct new studies and construct new projects, and both would modify and extend existing project and program authorizations.
However, despite these similarities, numerous provisions in one bill have no counterpart in the other. In particular, many provisions in S. 2800 have no related provision in H.R. 8. For example, S. 2800 includes numerous provisions related to EPA-administered water quality and infrastructure programs. Most of these provisions occur in Title V, but other titles also include EPA-related provisions. Title V of S. 2800 would amend the Clean Water Act for various purposes (e.g., to reauthorize the appropriation of grants for sewer overflow projects and make stormwater management projects eligible, to authorize integrated planning to help municipalities comply with wastewater discharge mandates, and to require EPA to promote and integrate the use of green infrastructure into various agency activities). It also would amend the Safe Drinking Water Act (SDWA); among other SDWA amendments, the Senate bill would (1) make permanent the requirement to use U.S.-produced iron and steel in all projects receiving Drinking Water State Revolving Fund (SRF) assistance, (2) formally authorize EPA's WaterSense program, and (3) impose certain contract negotiation requirements on SRF-assisted projects. S. 2800 would amend the Water Infrastructure Finance and Innovation Act (WIFIA; P.L. 113-121, Title V, Subtitle C) to authorize special terms for loan assistance provided to state Clean Water and Drinking Water SRF finance authorities. Further, it would require a study on WIFIA accessibility for certain communities. H.R. 8, in contrast, contains none of these provisions and generally remains focused on USACE activities.
This report provides an overview of H.R. 8 and S. 2800, including context related to the bills and the topics shaping deliberation associated with the USACE- and EPA-related provisions. Among the issues shaping deliberations are the extent to which the legislation improves delivery of water infrastructure, including USACE water resource projects, and the effect of the legislation on federal spending and nonfederal investments.
The 115th Congress is deliberating two omnibus water authorization bills—H.R. 8, the Water Resources Development Act of 2018 (WRDA 2018), and the Senate's amendment in the nature of a substitute to H.R. 8, titled America's Water Infrastructure Act of 2018 (AWIA 2018).1 The House passed H.R. 8 by a 408-2 recorded vote on June 6, 2018. The original vehicle for AWIA 2018 was S. 2800, which was reported out of the Senate Committee on Environment and Public Works (Senate EPW) on May 22, 2018. The Senate's amendment in the nature of a substitute to H.R. 8 reflects various changes from S. 2800 as reported. For the 115th Congress, deliberations on the two bills includes discussions of the scope of water issues to be addressed and how the legislation would influence federal and nonfederal investments in water infrastructure. In addition, there is some interest in altering how the U.S. Army Corps of Engineers (USACE) is structured and in modifying its operations and delivery of water resource projects. In the Senate, deliberations also have focused on a range of drinking water and water quality issues facing communities and rural areas. Issues include infrastructure needs and the federal role and options for funding projects, the ability of communities to comply with water quality regulatory requirements and options for compliance flexibility and affordability, infrastructure resiliency, and technology innovation, among others.The 115th Congress is deliberating two water authorization bills: H.R. 8, the Water Resources Development Act of 2018 (WRDA 2018), and S. 2800, America's Water Infrastructure Act of 2018 (AWIA 2018). finance authorities. Further, it would require a study on WIFIA accessibility for certain communities. WRDA 2018 contains none of the EPA-related provisions and generally focuses on USACE and dam and levee safety authorities.
Introduction
In the tradition of previous legislation with the Water Resources Development Act (WRDA) title, H.R. 8 focuses primarily on authorizing water resource projects and activities of the U.S. Army Corps of Engineers (USACE). S. 2800 and dam and levee safety programs. AWIA 2018 includes not only provisions related to USACE provisions, but also provisions related toinvolving water quality and drinking water programs administered by the U.S. Environmental Protection Agency (EPA), particularly in Title V of the bill ("EPA-Related Provisions"). In addition, S. 2800AWIA 2018 includes a few other provisions that relate primarily to tribal water-related programs and authorities, and certain Department of the Interior (DOI) activities and programs.
This report provides an overview of WRDA 2018 and AWIA 2018 and includes a few other provisions that relate primarily to Department of the Interior activities and programs. Issues for the 115th Congress related to these deliberations include the scope of water issues to be addressed, how the legislation would affect federal spending, and how the legislation would affect federal and nonfederal investments in water infrastructure. There also is interest in altering how the USACE is structured and in modifying its operations and delivery of water resource projects.
This report provides an overview of H.R. 8 and S. 2800, including context related to the bills and the topics shaping deliberations. topics shaping deliberations.2 After a brief background, the report presents a broad overview of the two bills. The nextsubsequent section describes the context for the USACE provisions and discusses how the two bills address selected topics. The final section describes EPA-related provisions.
Congress generally authorizes USACE water resource activities in authorization legislation prior to funding the activities through appropriations legislation. USACE's ability to act on an authorization often is determined by funding. Congress generally authorizes numerous new USACE site-specific activities and provides policy direction in an omnibus USACE authorization bill, typically a WRDA. A few provisions in WRDA bills have time-limited authorizations; therefore, some WRDA provisions may reauthorize expired or expiring authorities.
Beginning with WRDA 1986 (P.L. 99-662), Congress loosely followed a biennial WRDA cycle for several years. WRDAs were enacted in 1988 (P.L. 100-676), 1990 (P.L. 101-640), 1992 (P.L. 102-580), 1996 (P.L. 104-303), 1999 (P.L. 106-53), 2000 (P.L. 106-541), and 2007 (P.L. 110-114). The Water Resources Reform and Development Act of 2014 (WRRDA 2014; P.L. 113-121) was enacted in June 2014.1
The most recently enacted water authorization legislation was the Water Infrastructure Improvements for the Nation Act (WIIN; P.L. 114-322); it was enacted in December 2016.24 WIIN included titles on water-related programs and projects spanning various agencies and departments. Title I of the bill—which had a short title of WRDA 2016—focused specifically on USACE water resource authorizations. Titles II, III, and IV focused primarily on other agencies; many of the specific provisions in these titles had little or no relationship to USACE.
Both H.R. 8 and S. 2800WRDA 2018 and AWIA 2018
Both WRDA 2018 and AWIA 2018 include numerous provisions that address USACE-related activities. For example, both bills would authorize USACE to conduct new studies and construct new projects, and both bills would modify existing authorizations.3 5 For example, USACE and the Federal Emergency Management Agency (FEMA) have certain responsibilities related to national programs for dam and levee safety. Both bills would extend beyond 2019FY2019 the authorization of appropriations for a USACE-ledfederal levee safety initiative; H.R. 8 and a national dam safety program; WRDA 2018 would extend the authorizationauthorizations of appropriations through 2023FY2023, and AWIA 2018, and S. 2800 would extend itthem through FY2021.
Table 1 provides a summary of the organization of the two bills and their status. A broad difference between the bills is their scope. WRDA 2018 is focused on USACE water resource projects and programs and dam and levee safety program authorities through 2021.
Despite these similarities, many provisions in S. 2800 have no counterpart in H.R. 8. A broad difference between the bills is their scope. H.R. 8's titles and provisions focus on USACE water resource projects and programs; although the majority of S. 2800; although the majority of AWIA 2018's titles and provisions also relate to the USACE's water resource projects, Title V of S. 2800 includes multiple provisions related to EPA water infrastructure authorities and programs. In addition, S. 2800 contains provisions that relate to other agencies and programs. For example, Section 5007 of S. 2800 relates to water resources research institutes at state universities that are supported through a program administered by the U.S. Geological Survey; Section 3301 relates to the Bureau of Reclamation's Fontenelle reservoir; and Section 3803 amends a Blackfeet water rights settlement provision in WIIN.
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Topic |
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numerous provisions of AWIA 2018 are not directly related to USACE water resource activities. AWIA 2018 includes provisions addressing a range of other topics, including EPA administered water programs and regulatory authorities, and water-related activities and other authorities of the Department of the Interior and other agencies. For example, the following DOI-related provisions are in AWIA 2018: Section 1042 of AWIA is an example of a provision that is not tied to a specific agency; it relates to the use by federal and state agencies of geomatic data in the approval of federal authorizations (conditional upon subsequent onsite inspection).6 AWIA 2018 also would address an array of water-related programs and activities specific to tribes; most of these are in Subtitle I of Title III, such as provisions related to Indian dam safety and irrigation authorities and USACE housing assistance related to certain dam construction in the Pacific Northwest. A few provisions are in other titles of AWIA 2018; for example, Section 1040 would require that nonfederal interests for a water resource development study or project be provided "the opportunity to participate in all consultations with Federal and State agencies and Indian tribes required by Federal law." WRDA 2018 has fewer provisions affecting tribes than AWIA 2018 and they are all directly related to USACE activities. Topic WRDA 2018 AWIA 2018 |
Water Resources Development Act of 2018 (WRDA 2018) |
America's Water Infrastructure Act of 2018 (AWIA 2018) |
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Titles in Bill Primarily Related to U.S. Army Corps of Engineers a |
"Title I. General Provisions" "Title II. Studies" "Title III. Deauthorizations, Modifications, and Related Provisions" "Title IV. Water Resources Infrastructure" |
"Title I. General Provisions" "Title II Studies, Modifications, and Project Authorizations" "Title III. Primary Corps of Engineers Activities" "Title IV. Sense of Congress Related to Certain Projects" |
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Other Titles in Bill |
None |
"Title V. EPA-Related Provisions" |
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Status of Legislation as of |
House passed |
Senate Committee on Environment and Public Works Senate EPW posted an amendment in the nature of a substitute to H.R. 8 on July 9, 2018; it included various changes from S. 2800 as reported. |
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Congressional Budget Office (CBO) Cost Estimate |
| Not available as of June 14, 2018. No CBO estimate of H.R. 8 as passed by the House is available. CBO estimate available on June 28, 2018, for the bill as reported by the Senate EPW.c CBO estimate available on July 10, 2018, for the July 9, 2018, Senate EPW-posted amendment in the nature of a substitute to H.R. 8; it estimated the direct spending and revenue effects d |
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Statement of Administration Policy (SAP) |
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Sources: Congressional Research Service (CRS) using H.R. 8 as passed by the House, and S. 2800 as reported by the Senate Environment and Public Works Committee on May 22, 2018.
Notes: EPA = U.S. Environmental Protection Agency.
Notes: EPA = U.S. Environmental Protection Agency.aH.R. 8, Water Resources Development Act of 2018 (WRDA 2018), as passed by the House, and the Senate amendment in the nature of a substitute to H.R. 8, America's Water Infrastructure Act of 2018 (AWIA 2018) at https://www.epw.senate.gov/public/index.cfm/addressing-americas-infrastructure-needs.
/?file=115th-congress-2017-2018/costestimate/hr8.pdf.
bc. The June 28, 2018, CBO estimate is available at https://www.cbo.gov/system/files?file=2018-06/54143-s2800.pdf.
d. The July 10, 2018, CBO estimate is available at https://www.cbo.gov/system/files?file=2018-07/hr8_S.pdf; it did not estimate spending subject to appropriations.
e. The June 5, 2018, SAP is available at https://www.whitehouse.gov/wp-content/uploads/2018/06/saphr8hr_20180605.pdf.
Hearings and statements related to water resource projects during the 115th Congress have referenced not only the importance of USACE activities in addressing demand for water resource infrastructure and the resulting benefits but also the agency's $96 billion backlog of construction activities.47 This backlog reflects the costs associated with constructing new works and rehabilitating existing infrastructure to maintain its safety and services. This backlog also reflects the difference between federal funding appropriated for these projects and the rate of project authorization. Among the issues shaping the deliberation of H.R. 8 and S. 2800WRDA 2018 and AWIA 2018 are the extent to which the legislation addresses the delivery of water resource projects and the legislation's effect on federal spending.
Congress has, particularly in WRRDA 2014 and WIIN, provided opportunities for nonfederal entities to have more prominent roles in the delivery and funding of projects, while maintaining the division of costs and responsibilities between the federal government and nonfederal project sponsors. Nonfederal entities have been using these authorities to furtherconduct work on studies and projects and to receive federal credit or be eligible for reimbursement for this work. WRRDA 2014 also provided for new or expanded authorities for novel financing of water resource projects, including authorities for piloting public-private partnerships (P3) and the Water Infrastructure Finance and Innovation Act (WIFIA) credit assistance program.58 USACE's WIFIA and P3 efforts have run into implementation challenges.69
Although President Trump (as well as previous Presidents) and many Members of Congress have expressed interest in improving the nation's infrastructure, including its water resource infrastructure, accomplishing this aim without significant federal investment represents a challenge for more fiscally conservative interestsbalancing the potential benefits of such improvements and concerns about increased federal expenditures poses an ongoing challenge. Cost estimates by the Congressional Budget Office (CBO) have been part of the deliberations about previous water authorization bills and have influenced which provisions are included in enacted legislation. On June 4, 2018, CBO released a cost estimate on H.R. 8 as reported by the House Committee on Transportation and Infrastructure; as ofon June 1428, 2018, CBO had not publicly released a cost estimate for S. 2800.
Selected broad topics related to USACE , as reported; and on July 10, 2018, CBO released an estimate of the direct spending and revenue effects for the Senate amendment in the nature of a substitute to H.R. 8 (as posted on the Senate EPW website on July 9, 2018).10
USACE Topics Related to WRDA 2018 and AWIA 2018 Deliberations
Selected broad USACE topics related to provisions in WRDA 2018 and AWIA 2018provisions in H.R. 8 and S. 2800 include the following:
Each of these topics is discussed in Table 2. Table 2 reflects H.R. 8 as passed by the House.
In addition to the topics and provisions identifiedAlthough the two bills both include provisions related to USACE structure and efficiency, neither bill proposes to shift USACE civil works responsibilities out of the Department of Defense. In June 2018, the Trump Administration proposed transferring the USACE navigation responsibilities to the Department of Transportation and all other civil works responsibilities to the Department of the Interior.14
In addition to the topics and provisions described in Table 2, there are numerous other USACE policies, authorities, and projects addressed by other provisions of H.R. 8 and S. 2800WRDA 2018 and AWIA 2018. These other provisions as well as concerns that have shaped previous deliberations on USACE authorizing legislation also may shape congressional deliberations of H.R. 8 and S. 2800. Some of these include disposition of functioning and obsolete USACE infrastructure,WRDA 2018 and AWIA 2018. Examples of such topics include the following: authorities for credit and reimbursement for nonfederal investments associated with USACE projects, authorities for USACE beach nourishment activities, USACE authorities for environmental infrastructure assistance, and disposition of functioning and obsolete USACE infrastructure, private funding for the processing of USACE permits and permissions, and mitigation of the wetlands and environmental effects of USACE projects, authorities for USACE beach nourishment activities, and USACE authorities for environmental infrastructure assistance.8 Other potential topics that may shape deliberations are USACE's regulatory program and responsibilities and efforts to expedite environmental documentation and reviews of proposed USACE projects.9
WRDA 2018 includes a limited number of project-specific provisions; AWIA 2018 includes numerous provisions that relate to specific river basins or states and provisions that are project specific. Past debates of omnibus USACE authorization legislation at times have been shaped by these types of provisions. Congressional deliberations in the 115th Congress also may be shaped by project-specific provisions or provisions that address specific river basins or states.16
H.R. 8 as marked up by the House Transportation and Infrastructure Committee included a provision related to the use of the Harbor Maintenance Trust Fund (HMTF) to support navigation; the provision was not included in the House Rules Committee Print 115-72,1017 and is not in the H.R. 8 as passed by the House. The HMTF provision would have provided that, for FY2029 and thereafter, the Secretary of the Army shall have available without further appropriations monies from the HMTF to cover the eligible operations and maintenance costs assigned to commercial navigation of all U.S. harbors and inland harbors.11 S. 280018 AWIA 2018 does not contain an HMTF provision similar to the one in H.R. 8 as marked up by House Transportation and Infrastructure Committee.
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Information Dissemination and Public Input |
§113 would require the U.S. Army Corps of Engineers (USACE) to develop education and awareness efforts for nonfederal interests related to the Section 7001 annual report process, which is the process established by the Water Resources Reform and Development Act of 2014 (WRRDA 2014) to identify proposals for new studies, construction projects, and project modifications. §114 would require public notice of implementation guidance for provisions of WRRDA 2014, the Water Resources Development Act (WRDA) of 2016, |
No provisions related to information dissemination about the Section 7001 annual report process. § |
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USACE Permissions and Permits for Nonfederal Activities |
§116 would exclude unimproved real estate owned and operated by USACE as part of a water resource project from the definition of "works" in 33 U.S.C. §408 if the Secretary of the Army determines that the modification of the real estate would not affect the function or usefulness of the project.a §122 would remove the requirement that a nonfederal entity carrying out a federally authorized water resource project must obtain federal permits or approvals that would not be required if USACE were carrying out the project. | §1033 would provide USACE District Engineers (or the Secretary of the Army on the request of the applicant) the authority to approve alterations to local flood control projects in accordance with "section 208.10 of title 33 Code of Federal Regulations (or successor regulations), and other applicable laws (including regulations) related to flood control." |
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Studies of USACE Structure and Efficiency |
§118 would require the National Academy of Sciences (NAS) to deliver a study within two years after enactment that (1) evaluates USACE's ability of carry out its mission and responsibilities and the potential effects of transferring functions, assets, staff, and so on from the Department of Defense and (2) recommends improvements to USACE project delivery accounting for annual appropriations and USACE leadership and geographic structure. |
§1002 would require NAS to study §1014 would require the Secretary of the Army within a year of AWIA 2018 enactment to complete a study (originally requested in 1986 WRDA 1986, P.L. 99-662) on increasing USACE capabilities to undertake planning and construction of water resource projects on an expedited basis, including increased reliance on the private sector. |
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Budget Process for USACE |
§126 would require NAS to study the economic principles and methods used by the USACE to formulate, evaluate, and budget for water resources development projects and to make recommendations on changes to improve transparency, return on federal investment, cost savings, and prioritization in USACE budgeting of these projects. §125 would provide a sense of Congress on the President's USACE budget submission to Congress. |
§1001 would establish a five-year budget and work plan process for USACE that consists of a §1036 would prohibit the Secretary of the Army from updating the benefit-cost analysis after the benefit-cost analysis has been "administratively finalized" for a USACE project for which construction has commenced with certain exemptions. |
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Nature-Based Alternatives and Projects |
§131 would require the Government Accountability Office to study USACE consideration of natural and nature-based features in feasibility studies related to coastal and riverine flooding and ecosystem restoration. |
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Continuing Authorities Program (CAP)b |
§134 and §169 would increase the program authorization of appropriations and per-project limit for the federal costs for a two small navigation CAP projects and for small shore and beach restoration and protection CAP projects, respectively. |
§3001 would increase the program authorization of appropriations and/or the per-project limit for federal costs for eight §3002 would provide a sense of Congress that for each fiscal year there should be made available to USACE the full amount of appropriations to carry out nine specified CAP authorities (including the two CAPs amended in §134 and §169 of WRDA 2018). |
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Project and Study Deauthorization |
§301 would establish a process to deauthorize $3.15 billion in unconstructed water resource projects that meet certain criteria. §302 would provide for deauthorization of unconstructed projects authorized by §312 would require that the unconstructed projects on the list transmitted to Congress on December 15, 2016, not be deauthorized if the projects do not meet criteria in Section 1301(b)(1)(A) of WRDA 2016.c No provision on a deauthorization process of inactive studies similar to § |
§
§2108 would establish a process to deauthorize $7.5 billion in water resource feasibility studies that have not received federal funds during the 10 years preceding AWIA 2018 enactment. §2113 would appear to deauthorize upon AWIA 2018 enactment unconstructed projects that never received obligations or have not received obligations for planning, design, or construction since FY2000, and were on a list transmitted to Congress on December 15, 2016; the provision does not apply to a project for Pearl River basin, MS.dNo provision on a deauthorization process of unconstructed projects similar to §301 of |
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Independent Peer Review |
No similar provisions. |
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Innovative Financing |
No similar provisions. |
§ |
Sources: Congressional Research Service using H.R. 8 as passed by the House, and S. 2800 as reported by the Senate Environment and Public Works Committee on May 22, 2018.
§5002 would reauthorize appropriations for WIFIA for USACE through FY2021.
Permitting of Nonfederal Water Storage
No similar provision.
§1028 would require that the USACE District Engineer provide a purpose and need statement to the applicant for a permit for a water storage project within 90 days of a complete application. Prior to issuing a permit decision, the Secretary of the Army would be required to provide the applicant a record of decision that describes all applicable permit conditions. The Secretary of the Army shall establish a board of appeals that shall make a determination regarding an appeal of a purpose and need statement and/or permit condition; the District Engineer shall then reconsider the purpose and need statement or permit condition, taking into consideration the board's determination.
§3305 would establish a 10-year USACE permit pilot program to expedite review for drinking water reservoirs that meet certain criteria.
Pricing of Storage for Domestic, Municipal, and Industrial Water Supply
No similar provision.
§3302 would require that the Secretary of the Army establish the price for domestic, municipal, and industrial water storage contracts at a reservoir at no more than 110% of the lowest-contracted price (adjusted for inflation) used in water storage contracts executed prior to January 1, 2018, for USACE facilities within 50 miles of the water source covered by the storage contract. The provision would apply only to the contracts executed by the Secretary of the Army under the authority at 43 U.S.C. §390b and would be limited to projects that do not include hydropower as an authorized project purpose.
Sources: CRS using H.R. 8, Water Resources Development Act of 2018 (WRDA 2018), as passed by the House, and the Senate amendment in the nature of a substitute to H.R. 8, America's Water Infrastructure Act of 2018 (AWIA 2018).
a. Permissions to alter USACE water resource projects are referred to as Section 408 permissions. The provision would eliminate the need for a Section 408 permission for qualifying nonUSACEnon-USACE alterations of USACE real estate; other actions by USACE may still be required (e.g., granting of a right-of-way).
b. For more information on CAP, see CRS Report R45185, Army Corps of Engineers: Water Resource Authorization and Project Delivery Processes, by [author name scrubbed].
c. Under current statuestatute, the projects on the list are anticipated to be deauthorized on October 1, 2018. The criteria in WRDA 2016 that would apply to the transmitted list pursuant to §312 would be the following: the project had been authorized prior to November 8, 2007 (which is the day prior to enactment of the Water Resources Development Act of 2007, P.L. 110-114), and had not had planning, design, or construction initiated either before WRDA 2016 enactment or in the six preceding fiscal years.
In addition to water resource issues, the 115th Congress has given considerable attention to drinking water and wastewater infrastructure management and funding issues. Numerous bills have been introduced to amend EPA-administered programs under the Clean Water Act (CWA)1219 and/or the Safe Drinking Water Act (SDWA)1320 to help municipalities meet public health and environmental quality goals through drinking water and wastewater infrastructure improvements and other means. Bills would variously increase federal investment in water infrastructure, promote infrastructure resiliency and sustainability, and increase capacity to comply with CWA and SDWA mandates.1421 Many of these objectives are incorporated in provisions of S. 2800AWIA 2018.
Similarly, WRRDA 2014 and WIIN in 2016 addressed water infrastructure programs administered by EPA. WRRDA 2014 included WIFIA, which authorized EPA and USACE to provide credit assistance for an array of water infrastructure projects, including projects to build and upgrade wastewater and drinking water treatment systems. WRRDA 2014 also revised the Clean Water State Revolving Fund (SRF) program. In 2016, Title II of WIIN included the EPA-focused Water and Waste Act of 2016 which made numerous amendments to SDWA.15
Section 3308 of AWIA 2018 would amend the CWA to codify in statute the existing EPA regulations on water transfers.25 It would define water transfer as "an activity that conveys or connects waters of the United States without subjecting the water to intervening industrial, municipal, or commercial use." It would also specify that discharges from water transfers do not require a CWA permit, with the exception of pollutants introduced by the water transfer activity itself to the water being transferred. That is, surface water containing pollutants (e.g., nutrients, sediment, or invasive species) can be transferred to another waterbody or watershed without being subject to CWA controls. Regarding SDWA authorities, Title V of AWIA 2018 would make several changes to the act's DWSRF provisions, including making permanent the requirement that projects receiving DWSRF assistance must use iron and steel products produced in the United States. Among other SDWA amendments, the Senate bill would (1) formally authorize EPA's WaterSense program, and (2) revise the SDWA grant program for testing for lead in school and childcare-program drinking water.26 S. 2800—and, specifically, projects eligible to receive assistance under the Clean Water State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF) programs.22 WIFIA specifies that state infrastructure finance authorities are eligible to receive WIFIA assistance. WRRDA 2014 also made significant revisions to the CWSRF program. In 2016, WIIN, Title II (Water and Waste Act of 2016), made numerous amendments to SDWA.23
EPA Topics Related to WRDA 2018 and AWIA 2018 Deliberations
AWIA 2018 includes numerous provisions involving EPA-administered water quality and infrastructure programs and other authorities. Most of these provisions occur in Title V, but other titles also feature EPA-relevant provisions (e.g., Section 3702 amends and reauthorizes EPA's Long Island Sound programs).
Title V of S. 2800AWIA 2018 would amend the CWA to (1) authorizereauthorize the appropriation of grants for municipal sewer overflow projects and make stormwater management projects eligible for these grants; (2) authorize a technical assistance program for small- and medium-sized wastewater treatment works; and (3) formally authorize integrated planning to help municipalities comply with multiple CWA wastewater discharge mandates.16 S. 280024 AWIA 2018 would further amend the CWA to require fourcertain EPA offices to promote the use and coordinate the integration of green infrastructure into permitting, planning, research, funding guidance, and other activities, among other provisions. SDWA amendments would include, among others, making permanent the requirement that projects receiving Drinking Water State Revolving Fund assistance must use iron and steel products produced in the United States and formally authorizing EPA's WaterSense program.17 Additionally, the Senate bill would amend WIFIA to provide special terms for loan assistance provided to state Clean Water and Drinking Water SRF finance authorities (e.g., reduced interest rates, generally for smaller states;18 up to 100% project financing; waiver of application fees) and to remove WIFIA's designation as a pilot program
. In addition, S. 2800 would authorize EPA to establish a water infrastructure resiliency and sustainability grant program; authorize an Indian reservation drinking water and wastewater infrastructure pilot program at EPA; and support water utility workforce development. S. 2800
AWIA 2018 also calls for studies on "intractable water systems" and on WIFIA accessibility for certain communities. These and other water quality and drinking water provisions are described below in Table 3. In contrast, H.R. 8WRDA 2018 contains none of these provisions and generally remains focused on traditional USACE water resource activities.
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Clean Water Act (CWA) Water Transfer Discharges No similar provisions. §3308 would amend CWA Section 402. It would add a definition of water transfer to mean "an activity that conveys or connects waters of the United States without subjecting the water being transferred to intervening industrial, municipal, or commercial use." It would clarify that discharges from water transfers do not require a permit under CWA Section 402, with the exception of pollutants introduced to the water by the water transfer itself. |
No similar provisions. |
§5001 would direct the EPA Administrator to establish a stormwater infrastructure task force to develop recommendations to improve funding and financing of municipal stormwater infrastructure and to report study results to Congress. §5005 | ||||||||||||||||||||
CWA Compliance Flexibility, Technical Assistance, and Green Infrastructure CWA Technical Assistance, Report on Compliance Costs and Benefits |
No similar provisions. |
§5004 would amend the CWA to authorize EPA to provide grants to qualified nonprofit groups to provide technical assistance to small- and medium-sized wastewater treatment works to assist with CWA compliance and obtaining financing for § CWA Compliance Flexibility, Integrated Plans, Green Infrastructure, and Affordability No similar provisions. |
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WIFIA Reauthorization and Amendments for SRF Programs |
No similar provisions. |
§5002 would reauthorize appropriations for WIFIA §5012 calls for the Government Accountability Office to conduct a study on ways to improve access to WIFIA assistance in rural and other selected communities. § §5016 would remove WIFIA's designation as a 'pilot' program. |
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Indian Reservation Pilot Program |
No similar provisions. |
§5003 would authorize EPA to carry out a pilot program of at least 20 projects to improve various types of drinking water and wastewater infrastructure at Indian reservations located in the Upper Mississippi River and Upper Rio Grande basins (subject to the availability of appropriations). |
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Safe Drinking Water Act (SDWA) |
No similar provisions. |
§5005 |
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SDWA |
No similar provisions. |
§ |
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CWA, WIFIA, USDA |
No similar provisions. |
§5009 would |
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SDWA |
No similar provisions. |
§5010 would |
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SDWA |
No similar provisions. |
§5013 would amend SDWA to make permanent the requirement that projects receiving |
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SDWA DWSRF Compliance with State Law No similar provisions. §5014 would require states to ensure that DWSRF funds are not used to purchase products or materials used in water treatment or delivery unless such products or materials are in compliance with state laws and regulations regarding the National Sanitation Foundation and American National Standards Institute Standard 61 (NSF/ANSI 61). Water Reuse No similar provisions. §5015 states that it is the sense of Congress that industry access to nonpotable water can relieve water supply and demand challenges, and encourages water users to continue implementing and incentivizing nonpotable water reuse programs that save water and meet conservation needs. |
No similar provisions. |
§
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EPA Regional Liaisons
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No similar provisions.
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§5018 would direct the EPA Administrator to appoint at least one liaison to minority, tribal and low-income communities in each EPA regional office.
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SDWA School and Child Care Program Lead Testing Grants
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No similar provisions.
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§5019 would amend the grant program for testing for lead in school and child care program drinking water (SDWA §1464(d)) to require EPA to provide technical assistance to help grant recipients identify sources of lead in water and apply for assistance to eliminate contamination. It would authorize to be appropriated $30 million for each of FY2020 and FY2021 (currently authorized at $20 million per fiscal year).
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Innovative Water Technologies
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No similar provisions.
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§5020 would require EPA to establish a program to provide grants to public utilities, local governments, farmers and other private entities, states, and various organizations to (1) finance projects to develop, deploy, and improve emerging water technologies; (2) fund entities that provide technical assistance to deploy innovative water technologies; and (3) support specified types of innovative technologies. §5020 would authorize to be appropriated $10 million for each of FY2019 and FY2020 for these purposes.
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CWA Grants for Individual Household Wastewater Systems
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No similar provisions.
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§5021 would amend the CWA to require EPA to establish a grant program for construction, refurbishing, and servicing of individual household decentralized wastewater systems for low- or moderate-income individuals. EPA would provide grants to nonprofit organizations that would provide subgrants to individuals residing in the mid-Atlantic, southeast, and Appalachian regions. §5021 would authorize to be appropriated $15 million, and program authority would expire 2 years after the date of enactment.
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WIFIA Bureau of Reclamation
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No similar provision.
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§5022 would amend WIFIA to direct the EPA Administrator to enter into a memorandum of understanding with the Commissioner of the Bureau of Reclamation to establish a process for the Commissioner to make recommendations to EPA for certain water resource projects to receive WIFIA assistance. The Commissioner would be authorized to recommend projects that are (1) eligible under WIFIA Section 5026 (6) and (7) [e.g., desalination projects, projects to reduce aquifer depletion, and projects to prevent or mitigate drought], and (2) located in a Reclamation state. |
Sources: Congressional Research Service using H.R. 8 as passed by the House, and S. 2800 as reported by the Senate Environment and Public Works Committee on May 22, 2018.
Author Contact Information
| 1. |
The text of the amendment in the nature of a substitute was made available on July 9, 2018, on the Senate Committee on Environment and Public Works website: https://www.epw.senate.gov/public/index.cfm/addressing-americas-infrastructure-needs.
This report focuses on WRDA 2018 and AWIA 2018; generally the report does not reference other proposed legislation in the 115th Congress that may include provisions that are similar to or related to provisions in WRDA 2018 or AWIA 2018. |
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For more information on WIIN, see CRS In Focus IF10536, Water Infrastructure Improvements for the Nation Act (WIIN), by [author name scrubbed] et al. |
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These studies, projects, and project modifications were identified using processes similar to the processes used for the Water Infrastructure Improvements for the Nation Act (WIIN; P.L. 114-322). These processes shape the ability for geographically specific provisions to be included in the bills while restrictions on congressionally directed spending are in place. For more about these processes, see CRS Report R45185, Army Corps of Engineers: Water Resource Authorization and Project Delivery Processes, by [author name scrubbed]. |
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7.
Section 1042 describes the data gathered by geomatic techniques as including "tools and techniques used in land surveying, remote sensing, cartography, geographic information systems, global navigation satellite systems, photogrammetry, geophysics, geography, or other remote means." The provision would require state and federal entities considering aspects of an application for any federal authorization to consider geomatic data submitted by the applicant, and allow the applicable agency to "grant conditional approval for Federal authorization, conditioned on the verification of such data by subsequent onsite inspection." The use of geomatic data in approvals has been seen as a means to proceed with federal authorizations when permission to access private parcels for surveying has not been provided. For example, a January 2017 article in a surveying industry magazine described how a developer of a natural gas pipeline reverted to the courts in Ohio to gain access to certain private lands for surveys ("Landowner Rights vs. Surveyor Access," Point of Beginning, January 1, 2017, https://www.pobonline.com/articles/100715-landowner-rights-vs-surveyor-access). |
For example, U.S. Congress, House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, America's Water Resources Infrastructure: Approaches to Enhanced Project Delivery, 115th Cong., 2nd sess., January 18, 2018. |
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33 U.S.C. §§3901-3914. For more on the status of |
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As of FY2018, USACE had yet to implement its WIFIA authority; the Trump Administration (like the Obama Administration) had not requested and Congress had not appropriated funds to USACE for its WIFIA start-up costs. EPA, by contrast, has had the Administration request funds and has received funding from Congress to implement its WIFIA authority. For a discussion of some of the issues that have impeded greater private-sector participation and public-private partnerships efforts for USACE and water resource projects (e.g., limitations on USACE entering into long-term contracts and challenges to assessing project-specific user fees), see CRS Testimony TE10023, America's Water Resources Infrastructure: Approaches to Enhanced Project Delivery, by [author name scrubbed]. |
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11.
June 4, 2018, CBO cost estimate available at https://www.cbo.gov/system/files?file=115th-congress-2017-2018/costestimate/hr8.pdf. June 28, 2018, CBO cost estimate available at https://www.cbo.gov/system/files?file=2018-06/54143-s2800.pdf. July 10, 2018, CBO cost estimate available at https://www.cbo.gov/system/files?file=2018-07/hr8_S.pd. |
Some of these topics have been in hearings and bill markups during the 115th Congress (e.g., budget process for USACE, studies of USACE structure and efficiency, and USACE permissions and permits for nonfederal activities). Other topics are notable because of their role in past deliberations related to USACE water resource authorization legislation; for example, independent peer review was a prominent element of the debate associated with WRDA 2007. |
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For background on the USACE role in administering Section 404 of the Clean Water Act (33 U.S.C. §1344, under which USACE authorizes activities that may discharge dredge or fill material into waters of the United States, including wetlands), see CRS Report RL30030, Clean Water Act: A Summary of the Law, by [author name scrubbed]. 13.
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The Obama and Trump Administrations received comments on a December 2016 notice of a proposed rulemaking related to the policies governing the use of USACE reservoirs for domestic, municipal, and industrial supply pursuant to two statutory authorities (Department of the Army, U.S. Army Corps of Engineers, "Use of U.S. Army Corps of Engineers reservoir Projects for Domestic, Municipal &Industrial Water Supply," 81 Federal Register 91556-91590, December 16, 2016, at https://www.federalregister.gov/documents/2016/12/16/2016-30017/use-of-us-army-corps-of-engineers-reservoir-projects-for-domestic-municipal-and-industrial-water). Although subject to change, the most recent published information for this rulemaking's timeline is an estimated issuance of a final rule in January 2019. 14.
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Executive Office of the President of the United States, Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations, June 2018, pp. 14, 30-31, at https://www.performance.gov/GovReform/Reform-and-Reorg-Plan-Final.pdf. |
Many of these topics were part of the deliberations during the congressional consideration of WRRDA 2014 and are discussed in CRS Report R43298, Water Resources Reform and Development Act of 2014: Comparison of Select Provisions, by [author name scrubbed] et al. For more on USACE environmental infrastructure assistance (i.e., USACE technical and financial assistance with design and construction of municipal drinking water and wastewater infrastructure projects), see discussion in CRS Report R45185, Army Corps of Engineers: Water Resource Authorization and Project Delivery Processes, by [author name scrubbed]. |
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For background on the USACE role in administering Section 404 of the Clean Water Act (33 U.S.C. §1344, under which USACE authorizes activities that may discharge dredge or fill material into waters of the United States, including wetlands), see CRS Report RL30030, Clean Water Act: A Summary of the Law, by [author name scrubbed]. For information on environmental documentation and reviews related to USACE projects, see CRS Report R43209, Environmental Requirements Addressed During Corps Civil Works Project Planning: Background and Issues for Congress, by [author name scrubbed]. |
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According to the website of the House Committee on Rules (https://rules.house.gov/bill/115/hr-8), "The Rules Committee Print strikes section 102 of H.R. 8 as ordered reported; section 102 allows the balances in the Harbor Maintenance Trust Fund to be spent in 2029 without appropriation. Section 102 was removed to ensure compliance with the Rules of the House and the Congressional Budget Act." During deliberations of H.R. 5303 during the 114th Congress, a similar Harbor Maintenance Trust Fund provision was in the House Transportation and Infrastructure Committee's reported version and also was removed from the Rules Committee Print. |
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The funds made available by the Harbor Maintenance Trust Fund (HMTF) provision would be in addition to the HMTF amounts appropriated through the annual discretionary appropriations process. The HMTF receives harbor maintenance taxes (12.5 cents per $100 of cargo value) from importers and domestic shippers using coastal and Great Lakes ports. Discretionary appropriations that draw from the HMTF often have not kept pace with tax collections. A roughly $9 billion HMTF surplus has developed. WRRDA 2014 included provisions to promote greater HMTF spending by establishing near-term targets for spending from the trust fund. |
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33 U.S.C. §§1251-1387. |
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42 U.S.C. §§300f-300j-24. |
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CRS Report R44963, Wastewater Infrastructure: Overview, Funding, and Legislative Developments, by [author name scrubbed]. |
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23.
In contrast to EPA, USACE has yet to implement its WIFIA authority; the Trump Administration (like the Obama Administration) has not requested and Congress has not appropriated funds to USACE for its WIFIA start-up costs. For more information, see CRS Report R43315, Water Infrastructure Financing: The Water Infrastructure Finance and Innovation Act (WIFIA) Program, by [author name scrubbed] and [author name scrubbed]. |
P.L. 114-322, Title II, comprised the Water and Waste Act of 2016. WIIN, Title II, Subtitle A, made numerous revisions to the Safe Drinking Water Act, including the Drinking Water State Revolving Fund (DWSRF) provisions (42 U.S.C. §§300f-300j-26). Title II, Subtitle B, authorized $100 million in DWSRF capitalization grants and other emergency assistance for Flint, MI, to address lead in the water system. For more information, see CRS In Focus IF10577, Water Infrastructure Improvements for the Nation (WIIN) Act, P.L. 114-322: Drinking Water Provisions, by [author name scrubbed]. |
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26.
40 C.F.R. §122.3(i). |
For more information on the WaterSense program, see CRS In Focus IF10787, WaterSense®: Water-Efficiency Label and Partnership Program, by Keara B. Moore. |
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Certain states would be able to receive WIFIA loans at 80% (and, in certain cases, between 80% and 50%) of the Treasury rate for comparable securities. EPA generally would be required to use 50% of funds available to provide secured loans at reduced interest rates. This subsidy would first be available to (1) states that receive less than 2% of the total amount of funds made available to states for their Drinking Water and Clean Water SRFs for the most recent fiscal year and (2) states for which the President has declared a major disaster any time from January 1, 2017, to the date of |