Water Infrastructure Needs and Challenges

Water Infrastructure Needs and Challenges

Statement of
Nicole T. Carter
Specialist in Natural Resources Policy
Before
Committee on Environment and Public Works
U.S. Senate
Hearing on
“Water Infrastructure Needs and Challenges”
January 10, 2018
Congressional Research Service
https://crsreports.congress.gov
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hairman Barrasso, ranking member Carper, and members of the committee, my name is Nicole
Carter. I am a Specialist in Natural Resources Policy at the Congressional Research Service
C (CRS). Thank you for inviting CRS to testify. The committee requested that CRS focus on the
legislative process for a Water Resources Development Act (a WRDA) as well as related issues in 2018.
In serving the U.S. Congress on a nonpartisan and objective basis, CRS takes no position on legislation.
CRS remains available to assist the committee in its development and consideration of water resource and
other legislation.
I will start by providing a WRDA primer, then discuss executive branch reports relevant to WRDA
deliberations, and end with some context for water authorization deliberations in 2018.
WRDA Primer
Congress is often involved at the project level when it comes to the U.S. Army Corps of Engineers
(Corps). Congress authorizes the agency to perform geographically specific projects to improve
navigation, reduce flood and storm damage, and restore aquatic ecosystems. Congress typically authorizes
new Corps studies and projects in statute prior to providing federal funding. Congress generally
authorizes these studies and projects, modifies existing project authorities, and provides policy direction
to the agency in an omnibus Corps authorization bill, generally called a Water Resources Development
Act. Authorization, however, does not guarantee federal appropriations for a study or project.
Most WRDA authorities do not require reauthorization; however, Congress for a limited, but growing,
number of Corps authorities has established dates on which some authorities or their authorization of
appropriations expire. A small number of these time-limited authorities and authorization of
appropriations end in the 2018 and 2019 calendar years. WRDAs also have established deauthorization
processes for incomplete Corps studies and unconstructed project elements.
Although Congress does not use WRDAs to appropriate funds, WRDA provisions may affect
appropriations indirectly: for example, WRDAs have shaped how two navigation trust funds are used and
have established the split of financial and other responsibilities between the federal government and the
nonfederal project sponsors of Corps studies and projects.
The timing of enactment of WRDAs has varied. WRDA 1986 marked the end of a decade-long stalemate
between Congress and the executive branch on cost-sharing, user fees, and environmental requirements
for Corps projects. Since WRDA 1986, Congress has aimed to avoid long delays between the planning
and the execution of projects. Congressional enactment of a WRDA biennially was roughly followed
from 1986 until the early 2000s; since then, enactment has been less regular.
Controversial project authorizations and disagreements over the need for and direction of change in how
the Corps planned, constructed, and operated projects contributed to WRDA bills not being enacted in the
107th, 108th, and 109th Congresses. In the 110th Congress, President George W. Bush vetoed WRDA 2007,
indicating his view that it lacked fiscal discipline and failed to set priorities that focused on projects with
the greatest merit and federal responsibility. However, Congress overrode the veto to enact WRDA 2007
(P.L. 110-114).
Since WRDA 2007, Congress has enacted two Corps authorization bills. An issue that complicated
enactment of WRDA in the 111th and 112th Congresses was how to develop a bill without congressionally
directed, geographically specific activities (commonly referred to as earmarks). In response, the 113th
Congress developed reporting and oversight processes to identify new studies, projects, and project
modifications for authorizations. The 113th Congress enacted the Water Resources Reform and
Development Act of 2014 (WRRDA 2014; P.L. 113-121) in June 2014. In addition to the aforementioned
process changes, this legislation authorized 34 construction projects with a combined federal construction
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cost of $25.7 billion and modified several other Corps project authorities. It also expanded opportunities
for nonfederal entities to lead projects and authorized the use of innovative financing approaches,
including a pilot for public-private partnerships. The 114th Congress enacted the next WRDA as a title in
the broader Water Infrastructure Improvements for the Nation Act (WIIN; P.L. 114-322) in December
2016. WRDA 2016 authorized 30 new construction projects at a federal cost of more than $10 billion, as
well as dozens of studies identified through the new processes established in WRRDA 2014. Provisions in
WRDA 2016 further altered how nonfederal project sponsors may participate in the financing of water
infrastructure activities; other provisions changed authorities for crediting and reimbursing nonfederal
entities for project-related expenditures.
Reports Relevant to WRDA Deliberations
Three principal types of reports from the executive branch that the 115th Congress may use in crafting a
WRDA bill are
 reports by the Chief of Engineers recommending new construction projects;
 executive branch reports proposing modification to authorized projects; and
 the Secretary of the Army’s annual reports to Congress pursuant to Section 7001 of
WRRDA 2014.
Chief’s Reports for New Construction Projects
In 1954, Congress established a policy to generally base construction authorizations for Corps projects on
completed feasibility reports that are favorably recommended by the Chief of Engineers (33 U.S.C.
§701b-8). Each of the 64 new project construction authorizations in WRRDA 2014 and WRDA 2016 was
based on a completed report by the agency’s Chief of Engineers. A Chief’s Report is informed by a final
agency feasibility report and documentation assessing environmental impacts.
Since enactment of WRDA 2016, the Chief of Engineers has completed reports for five projects
recommended for congressional construction authorization:
 Houston-Galveston Navigation Channel, TX (navigation);
 Sabine Pass to Galveston Bay, TX (hurricane and coastal storm damage reduction);
 St. Johns County, FL (hurricane and coastal storm damage reduction);
 St. Lucie County, FL (hurricane and coastal storm damage reduction); and
 Mamaroneck and Sheldrake River Basins, NY (flood risk management).
The cost associated with each of these projects varies; they range from less than $15 million to more than
$3 billion. Based on data from the Corps in October and December 2017, an additional 12 to 18 Chief’s
Reports may be completed by the end of calendar year 2018. Some of these projects are in areas affected
by hurricanes in 2017.
Reports for Modifications to Authorized Projects
Congress also authorizes in WRDAs significant changes in either the construction costs or project
features of previously authorized projects.
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Increases in Authorization of Appropriations
If a Corps project has experienced growth in construction cost above a certain threshold, Congress must
authorize an increase in the authorization of appropriations. This requirement is pursuant to Section 902
of WRDA 1986, as amended (33 U.S.C. §2280), which generally allows for increases in total project
costs of up to 20% (after accounting for inflation of construction costs) without additional congressional
authorization. If the allowable threshold in cost increases is exceeded, the Corps typically pursues an
increase in the authorization of appropriations (known as a “902 fix”) and will not proceed with new
contracts for the project until the amended authorization is enacted. The Corps has completed a report
recommending that Congress increase the authorization of appropriations for the Savannah Harbor
Expansion Project. CRS was unable to obtain from the Corps information on other pending and
anticipated Administration reports recommending congressional increases in authorization of
appropriations.
Changes to Project Features
CRS was unable to identify any pending completed reevaluation reports by the Corps that recommend
project modifications (other than 902 fixes) that have been submitted to the authorizing committees or
that are anticipated in calendar year 2018.
Section 7001 Annual Reports
Section 7001 of WRRDA 2014 required the Secretary of the Army to report annually to the authorizing
committees on publicly submitted proposals for Corps studies, project authorizations, and project
modifications; the Section 7001 annual reports also include completed executive branch reports for
activities that require congressional authorization. Congress included in WRDA 2016 authorizations for
studies of new projects and project modifications based on public proposals submitted through the
Section 7001 process and identified in Section 7001 annual reports submitted in 2015 and 2016.
The most recent Section 7001 annual report was delivered to the authorizing committees in March 2017;
it includes 13 public proposals for new feasibility studies and project modifications. The deadline in
statute for the next Section 7001 annual report to be submitted to the authorizing committees is February
1, 2018.
Context for Deliberations in 2018
Many topics may shape deliberations on water resource authorizations in 2018, including the use of the
two navigation trust funds, the operation of Corps dams for water supply and recreation, and civil works
permissions and permits for high-profile public and private infrastructure projects. Three broad topics of
relevance to deliberations in 2018 on Corps and water resource projects are an infrastructure initiative,
nonfederal expectations and partnerships, and floods and disasters.
Infrastructure Initiative
Water project authorization deliberations may be taking place at the same time as efforts to develop and
move a broader infrastructure initiative. Related questions for federal policymakers are, How may a broad
infrastructure initiative relate to authorized Corps water resource projects and to investments in aging
federally owned infrastructure? If Corps projects are part of an initiative, how would nonfederal cost-
shares and contributions to trust funds for water resource projects factor into an infrastructure investment
initiative? Would the initiative support Corps projects of the traditional type, or would the initiative
promote new funding and project delivery arrangements for water resources projects? Historically, the
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Corps has led the design and construction of its projects; nonfederal project sponsors traditionally
participate in but do not lead project planning and construction for Corps projects. The Corps generally
has not participated in water resource projects by providing grants or loans. Expanded and new authorities
in WRRDA 2014 and WRDA 2016 allow nonfederal entities to lead in some or all aspects of an
authorized Corps project. WRRDA 2014 also expanded the authority for nonfederal financing
opportunities for water resource projects. WRRDA 2014 established the Water Infrastructure Finance and
Innovation Act (or WIFIA) authority to provide direct loans and loan guarantees to nonfederal entities for
partial funding of certain qualifying water infrastructure projects. WRRDA 2014 also authorized various
pilot efforts for nonfederal study and project leadership and public-private partnerships. The Corps has
faced various challenges in developing guidance and determining a path forward for agency participation
in public-private partnerships and WIFIA. While the U.S. Environmental Protection Agency (EPA) has
published guidance, received appropriations, and issued a request for projects to begin implementing the
EPA-WIFIA program, the Corps-WIFIA program has no published guidance or federal funding. The final
WIFIA authorization of appropriations for the Corps and EPA is for FY2019.
Nonfederal Expectations and Partnerships
Numerous Corps projects authorized for construction by previous Congresses have yet to receive federal
funds to begin construction. Some $75 billion in authorized Corps construction projects and an additional
$20 billion in Corps dam safety work are eligible for annual Corps construction appropriations, which
have averaged $1.8 billion in recent years. In response, Congress has attempted to advance navigation,
ecosystem restoration, and levee projects by allowing nonfederal entities to work on and fund projects by
expanding credit and reimbursement opportunities, with few changes to the underlying federal-nonfederal
division of costs. The Government Accountability Office (GAO) in December 2016 reported that
nonfederal sponsors have led or are leading $4 billion in Corps-related studies and projects and that the
federal government has reimbursed $400 million to cover some of the federal costs related to these
projects. GAO did not report what would be the total reimbursement level to cover the federal cost-share
associated with these studies and projects. What will the federal government expect of nonfederal project
sponsors in coming years, and what can nonfederal entities expect from the federal government?
Floods and Disasters
Local and regional floods and hurricanes in recent months and years have illustrated the nation’s flood
risk and its economic and social costs. Dam safety concerns (e.g., failing spillways at California’s
Oroville Dam and Puerto Rico’s Guajataca Dam) have raised questions regarding the condition and
performance of the nation’s existing water infrastructure. Nonfederal and federal liability questions
associated with flooding and flood control projects (e.g., Corps-operated Addicks and Barker reservoirs
near Houston, Texas) are shaping discussions regarding who will pay for and be responsible for the next
generation of flood risk reduction infrastructure and flood recovery efforts. In recent years, through
supplemental appropriations, Congress not only has funded the emergency response and repair activities
of the Corps, but also has provided the Corps with funding to study and construct projects that reduce
flood risks in areas recently affected by natural disasters. Potential questions that may shape water
infrastructure authorization deliberations in 2018 include the following:
 How effective and efficient are current project development and funding processes for
identifying and supporting priority investments to reduce the nation’s flood risk?
 What are the federal roles and priorities for flood risk management investments, and how
may these roles and priorities be shaped by efforts to respond to and recover from recent
hurricanes and floods?
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
 What incentives and disincentives to prepare for floods and manage flood risks do federal
projects and programs provide to U.S. states, territories, tribes, local governments, private
entities, and individuals?
This concludes my statement. I would be happy to answer any questions you may have.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
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