ENS Federal Report
April 23, 2021

Senate Begins Debate on Water Infrastructure Package

The Senate began floor consideration on the Drinking Water and Wastewater Infrastructure Act of 2021 (S. 914) this week, filing cloture on the legislation on Thursday. With Thursday’s action, it allows the chamber to move forward with a formal vote on the measure in the near future. The package enjoyed bipartisan support in the Committee on Environment and Public Works and is expected to receive a bipartisan vote on the floor.

S. 914 is primarily a reauthorization bill that contains the clean water and drinking water provisions that failed to be passed last year, as part of the Water Resources Development Act of 2020.Key clean water provisions include:

State Revolving Loan Fund reauthorized at $14 billion and provides that 10% of assistance reserved for grants and other subsidies to reduce costs.
Wastewater efficiency grant program authorized at $100 million to support waste to energy projects.
Alternative Water Source Act reauthorized providing $125 million to support grants to develop reclamation projects generally under $3 million.
Sewer Overflow and storm water grants program reauthorized at $280 million to address CSO and other overflows. 25% set aside for rural or financially distressed communities.
Resiliency and sustainability grants assistance provided to support utilities address climate and cyber impacts. $125million authorized.
Small system assistance to improve efficiency of small systems (10,000 or less) authorized. No funding level identified.
Workforce development grants program reauthorized at $5 million.
Water Data Sharing program authorized to provide grants to encourage data sharing related to impaired coastal watersheds, water system with high levels of pollution and other circumstances leading to water quality impacts. Multi-state consortia authorized to enhance sharing of data, technologies, and protocols. $65 million in grants authorized to support state and consortia efforts.
WIFIA reauthorized at $50 million per year. Renews the authority of small systems to bundle projects for WIFIA assistance to meet floor for financing assistance.
Study required on the state of small and disadvantaged communities’ historical distribution of funding assistance and ways to improve assistance to such communities.
The Water Reuse Interagency Working Group is created to advance water reuse throughout the country with a focus on federal agencies’ mission and ways to create opportunities for reuse.
Advanced Clean Water Technologies Study directed to ascertain existing and future technologies that could improve the operations of treatment works.

House and Senate Democrats Reintroduce New Green Deal Resolution

In a possible signal that action on the White House’s American Jobs Plan might become politically ensnared in the Green New Deal priorities, Representative Alexandria Ocasio-Cortez (D-NY) and 101 of her House colleagues reintroduced the Green New Deal resolution, H.Res. 332, calling upon the federal government to implement the goals of the resolution. Senator Ed Markey (D-MA), along with twelve cosponsors, also introduced a companion, resolution S. Res. 166. The resolutions are statements of aspirations, but given the evolving discussions on a national infrastructure policy this year, they may ultimately serve as a guide for funding demands of specific programs within any congressional rewrite of the American Jobs Plan.

The resolutions establish a host of findings related to climate change, banking systems, employment policies, public health standards, wage and workplace protections, ecosystem and fisheries, indigenous peoples and other disadvantaged communities, and overhauling the transportation system of the nation. Within the resolution’s provisions related to climate, it cites a recognition that human activity is the dominant reason for the escalation in global climate temperatures. It demands that the nation reach net zero greenhouse gas emissions by the 2050. The resolution also cites the impacts of climate change and pollution upon systemic injustices that disproportionately affect indigenous peoples, communities of color, migrant communities, depopulated rural communities, poor, low-income, elderly, women, homelessness and other individuals and communities.

In response to the identified adverse social, economic and environmental impacts from climate change, the resolution calls for action of historic proportions by Congress. This call to action includes providing for clean air, clean water access to all, and a sustainable environment. The resolution also addresses protections for all citizens, promoting environmental justice and equity through any infrastructure legislation. Additionally, it addresses labor, workplace health and safety, and increased minimum wage and hour standards. On the jobs front, the resolution seeks to halt transfer of jobs overseas. Healthcare delivery is also highlighted as a priority for all Americans.

While the resolution does not cite actual spending levels, Ocasio-Cortez recently stated the American Jobs Plan is a good start, but falls short of addressing the needs of the nation. Instead, she has suggested that she would like to see an infrastructure bill that would exceed the $2.3 trillion price tag of the White House initiative. How the resolution proceeds in the House and Senate is unclear, but its provisions and call for action suggest that it could serve as a benchmark to determine if the final infrastructure plan meets the priorities of the progressive Members in the House and Senate.

With a Wink and Nod, Senate Republicans Open Door to Earmarks

This week, the Senate Republican Conference backed away from changing a conference rule that would have banned congressionally directed funding, formally known as earmarks. The action to not amend or eliminate the rule, gave tacit approval for Members to proceed as they wish in regards to accepting and filing congressionally directed funding requests. Over the past months, Senate Republicans faced growing pressure to change their stance on congressionally direct after House Republicans voted in mid-March (102-84) to lift their ban on earmarks. Senator Richard Shelby (R-AL), the ranking Republican on the Appropriations Committee, was quick to note that since conference rules are nonbinding, a Republican senator may choose to request earmarks. Shelby added, “if you don’t want to earmark, don’t ask for one."

Earlier in the week, fifteen Republican Senators released a letter calling on the Conference to maintain its ban on earmarks. One of the signatories, Senator James Lankford stated, “earmarks do not prioritize essential national projects; they prioritize lobbying and bridges to nowhere. We do not need one more way to overspend in the Senate.” Those in the know are predicting that 35 of the 50 Republican Senators are likely to request earmarks in appropriations bills for the 2022 fiscal year. Senate Democrats have already decided that they will be submitting project requests.

Senate appropriators, who have not announced guidelines for member requests, are expected to closely follow rules established by their House colleagues. Designated “community project funding” requests (CPFs), each member is limited to 10 total requests for fiscal year 22, and the total funding for CPFs cannot be more than 1% of discretionary spending (roughly $14 billion). The House plan requires all members to certify that they and their families do not have a financial interest in any request made by the Member; creating a searchable online database of all CPF requests; banning for-profit recipients; and requiring each Member to demonstrate community benefit and support for each request. While there is a great deal of uncertainty over how and when the FY 2022 appropriations will be concluded, House and Senate appropriators have begun holding hearings to examine the Administration’s spending request.

USEPA Administrator Testifies Before House Appropriations Committee

The House Committee on Appropriations Subcommittee on Interior and Environment and Related Agencies heard from U.S. Environmental Protection Agency (USEPA) Administrator Michael Regan on the Administration’s abbreviated fiscal year (FY) 2022budget for the Agency. Regan testified on the Administration’s priorities to address environmental issues related to climate change, environmental justice, and guaranteeing clean water for all communities.

Representative Mike Simpson (R-ID) highlighted the critical investment needs facing the nation’s water infrastructure systems that are jeopardizing compliance with the Clean Water Act and Safe Drinking Water Act and burdening localities and ratepayers with capital costs trying to repair and upgrade systems. Simpson asked Regan how the Administration plans to address the funding gap between local agencies’ financial capabilities and aging water infrastructure.

Regan explained that part of USEPA’S strategy is to address the situation by increasing the level of investment financially and educationally to help build a more resilient infrastructure and workforce.

Representative Betty McCollum (D-MN) focused her questioning on how USEPA will deal with PFAS contamination in water resources, and how the Agency plans to work with the Department of Defense (DOD) to ensure USEPA mandates and DOD mandates are equally rigorous. Regan stressed that PFAS contamination is a high priority for the Agency. He noted that the agency plans to work collaboratively with DOD to address the issue. USEPA plans to leverage the internal expertise on PFAS to set a drinking water standard. The budget request’s increase for the Agency’s PFAS activities aims to support this by providing the resources to provide adequate remediation and clean-up efforts.

Wildfire Measures Introduced as Western U.S. Faces Dangerous Fire Season

With drought conditions persisting across much of the West, significant wildfire potential is predicted to be above normal this summer. California faces a looming fire season with about 90 percent of the state in moderate to exceptional drought.

Over the past week, several bills have been introduced focusing the protection of wildland-urban interfaces, watersheds, and critical infrastructure and the enhancement of habitat on federal lands to improve forest health and resiliency.

According to congressional staff, committee hearings focusing on wildfire/forest health are expected to kick off in early May and individual bills could be bundled into a comprehensive wildfire bill. Members have expressed that as Congress works to craft comprehensive infrastructure legislation, enhancing forest resiliency would provide a significant economic benefit and should be included in any infrastructure package.

Senator Feinstein (D-CA) and Rep. Jimmy Panetta (D-CA) have announced plans to introduce wildfire legislation in mid-May addressing landscape scale restoration projects, protection of critical infrastructure and workforce assistance. Below is a select summary of legislation introduced by Senator Bennet, Rep. Bruce Westerman (R-CA), and Rep. Doug LaMalfa (R-CA).

S. __, The Outdoor Restoration Partnership Act – Sen. Michael Bennet (D-Co)

Establishes the Outdoor Restoration Fund in the Treasury to provide Restoration and Resilience Grants and to fund the Restoration and Resilience Partnership.
Creates the Restoration Fund Advisory Council to advise the Secretary of Agriculture on the Restoration and Resilience Grant Program.
The Restoration and Resilience Grant Program provides $20 million to state and local governments, tribes, special districts, and non-profits to support restoration, resilience, and mitigation projects across public, private, and tribal lands.
Provides $40 million to the Secretary of Agriculture for the Restoration and Resilience Partnership.
Prioritizes restoration or resilience projects developed through a collaborative process that reduce hazardous fuels, improve habitat, reintroduce fire where appropriate, and improve resilience in the wildland urban interface.

H.R. __, The Trillion Trees Act – Rep. Bruce Westerman (R-AR)

Streamlines environmental review for the protection of wildland-urban interfaces, watersheds, and critical infrastructure and the restoration of wildlife habitat on federal lands to improve forest health and resiliency and reduce the amount of carbon emissions from catastrophic wildfires.
Creates a new $10m Trillion Trees Challenge Fund to leverage private investments in non-Federal reforestation activities.
Raises the cap on the Reforestation Trust Fund to $180 million
Permanently reauthorizes the Good Neighbor Authority.

H.R. 2612 - The Restore Act – Rep. Doug LaMalfa (R-CA)

Gives the Secretary of Agriculture the authority to conduct landscape-scale forest management projects up to 75,000 acres at a Governor’s request.
Allows the Secretary of Agriculture to only consider “action” or “no action” in preparing an Environmental Assessment (EA) or Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).

Senate Appropriations Committee Reviews FY2022 Budget Request and American Jobs Plan

On Tuesday, the Senate Committee on Appropriations held a hearing to review the Biden Administration’s American Jobs Plan (AJP), the comprehensive $2.2 trillion infrastructure investment package. Chairman Patrick Leahy (D-VT) convened the hearing noting that AJP makes critical and diverse investments in our nation’s infrastructure, but it also aims to address the climate crisis and emphasizes incorporating resiliency into future infrastructure investments, as well as makes important investments in rural America to close the investment gap between urban and rural communities. Leahy stressed that now is the time to make widespread and meaningful investment to rebuild America that recognizes the impacts of climate change in order to prepare the country for the future and ensure America stays competitive on the international stage. Ranking Member Richard Shelby (R-AL) stated his support for infrastructure and agreed that there is bipartisan support for addressing the nation’s crumbling infrastructure. However, he questioned the broad definition of the term “infrastructure” that goes beyond the traditional definition of roads, bridges, sewage systems, water systems, adding that he does not agree with the Administration’s plan to pay for the investment through tax increases.

Among the Administration’s leadership testifying at the hearing, was U.S. Environmental Protection Agency (USEPA) Administrator Michael Regan. Regan’s testimony, emphasized that AJP’s investment in the nation’s water infrastructure and guaranteeing clean water access for all and cited the $56 billion in grants and low-cost flexible loans to help states, Tribes, and disadvantaged communities upgrade and modernize drinking water, wastewater, and stormwater infrastructure, as well as address emerging contaminants.

Senator Lisa Murkowski (R-AK) emphasized the need for all communities to have access to water and wastewater services. She cited the Plan’s $111 billion investment in water and wastewater infrastructure and asked Regan how the Agency plans to execute funding distribution that provides oversight by the federal government and recognizes the disparity between communities to utilize funding opportunities. Regan stated that because of USEPA’s history of using grants programs and partnering with local governments to deliver water infrastructure assistance, the Agency has the expertise to manage the level of funding provided in the Plan. However, he did state that the Plan’s $111 billion is a starting point for federal water infrastructure investment, acknowledging that the overall need in water infrastructure funding is $743 billion.

Senate Jeanne Shaheen (D-NH) highlighted the pervasive problem of PFAS contamination in New Hampshire and around the country. She asked Regan to expand on how AJP’s $10 billion to address PFAS contamination will be used. Regan agreed the problem PFAS contamination is posing to drinking water and explained the $10 billion will go towards monitoring and remediation efforts. He also stated that this is a top priority issue as well as the need to set a drinking water standard for PFAS. He added that USEPA plans to partner with local communities experiencing contamination as a way to improve monitoring and remediation efforts.

Senator Joe Manchin (D-WV) asked the panel what piece of their agency’s part of the Administration’s infrastructure plan has the most bipartisan support. Regan stated that the water and wastewater infrastructure component of USEPA’s section has the most potential for bipartisan support.

Testifying at the hearing were Secretary Pete Buttigieg, U.S. Department of Transportation; Administrator Michael Regan, U.S. Environmental Protection Agency; Secretary Gina Raimondo, U.S. Department of Commerce; and Secretary Marcia Fudge, U.S. Department of Housing and Urban Development.

House Committee Examines Incorporating Resiliency Into Nation’s Clean Water Infrastructure

This week, the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment held a hearing entitled Sustainable Wastewater Infrastructure: Measures to Promote Resiliency and Climate Adaptation and Mitigation. The purpose of the hearing was to examine potential policies and practices that encourage greater resiliency and sustainability of wastewater utilities within the scope of the Clean Water Act. Chairwoman Grace Napolitano convened the hearing by stating that as the committee and Congress consider how to deliver necessary investment to the nation's clean water infrastructure, the efforts must also consider how to incorporate resilient and sustainable approaches to utilize investment opportunities that fulfill both Clean Water Act obligations and protections for the public health and the environment. As a result, Napolitano explained that the hearing was an opportunity to explore the innovative and cost-effective alternatives to traditional wastewater infrastructure solutions.

Representative John Katko (R-NY) emphasized the importance of recognizing the value of innovative technologies to improve and enhance the nation's water infrastructure systems. He asked witnesses how deploying and utilizing smart water technologies could improve wastewater utilities' management of resources and enhance the resiliency of the utilities in the long-term. Howard Neukrug, P.E., Executive Director, The Water Center at the University of Pennsylvania, explained that the level to which water utilities are collecting data on minute-by-minute basis requires some amount of artificial intelligence to assess, organize, record for better use by utility operators in the future. There was broad agreement among the witnesses on the value of deploying smart water technology.

Testifying at the hearing were Howard Neukrug, P.E., Executive Director, The Water Center at the University of Pennsylvania, Kishia L. Powell, COO and Executive Vice President, D.C. Water, Robert C. Ferrante, Chief Engineer and General Manager, Los Angeles County Sanitation Districts, Kevin Robert Perry, FASLA, PLA, Landscape Architect, The American Society of Landscape Architects, Kim H. Colson, Director, Division of Water Infrastructure, North Carolina Department of Environmental Quality, and Rebecca Hammer, Deputy Director of Federal Water Policy, Natural Resources Defense Council.

USEPA Seeking Middle Ground For WOTUS

During a House Committee on Appropriations Subcommittee hearing on the fiscal year 2022 U.S. Environmental Protection Agency (USEPA) budget request, Administrator Michael Regan fielded questions from committee members on how his Agency would handle the Waters of the U.S. rule (WOTUS). In response, Regan explained that Agency will seek to establish a compromised regulatory path for WOTUS that balances the concerns of farmers and environmentalists. Under the Clean Water Act, WOTUS establishes the jurisdictional authority the federal government has over water bodies in the country. Over the last decade, it has been a source of contention following a rule change in 2015 that expanded the government’s jurisdictional authority of water bodies by expanding the definition of navigable waters, and recent narrowing of the rule under the Trump Administration that limited the types of navigable water bodies and reduced the authority of the government under the Clean Water Act.

Based on Regan’s comments, USEPA will try to craft a WOTUS rule that strikes a balance between the to two extremes. Regan stated that the Agency does not “have any intention of going back to the original Obama Waters of the U.S. verbatim, and we don’t necessarily agree with everything that was in the Trump’s Administration’s version as well. We’ve learned lessons from both. We’ve seen complexities in both, and we’re determined that both rules did not necessarily listen to the will of the people.”

New Legislation

S. 1308, A bill to amend the Internal Revenue Code of 1986 to provide a credit to issuers of American infrastructure bonds. – Sen. Roger Wicker (R-MS)

S. 1347, A bill to require the Administrator of the Environmental Protection Agency to continue to carry out certain programs relating to environmental justice, and for other purposes. – Sen. Tammy Duckworth (D-IL)

H.R. 2821, To provide for a coordinated Federal program to accelerate plastics waste reduction and support recycling research and development for the economic and national security of the United States, and for other purposes. – Rep. Haley Stevens (D-MI)

H.R. 2781, To amend the Water Resources Research Act of 1984 to reauthorize grants for and require applied water supply research regarding the water resources research and technology institutes established under that Act, and for other purposes. – Rep. Josh Harder (D-CA)

H.R. 2810, To ensure that certain Federal infrastructure programs require the use of materials produced in the United States, and for other purposes. – Rep. Tim Ryan (D-OH)

S. 1236, A bill to require the Secretary of Transportation to develop best practices for incorporating resilience into emergency relief projects, and for other purposes. – Sen. Tammy Baldwin

S. 1202, A bill to establish a program to improve community connectivity by identifying and removing or mitigating infrastructural barriers that create obstacles to mobility or economic development or expose the community to pollution and other health and safety risks, and for other purposes. – Sen. Tom Carper (D-DE)

H.R. 2674, To amend the Internal Revenue Code of 1986 to provide for the use of funds in the Hazardous Substance Superfund for the purposes for which they were collected, to ensure adequate resources for the cleanup of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes. – Rep. Earl Blumenauer (D-OR)

Reports and Regulations

Declaration - California Governor Newsom issues drought declaration for Mendocino and Sonoma counties. The declaration allows the state to move more quickly to regulate water consumption and "accelerate funding for water supply enhancement."

Article - Drought stokes fears of severe fire season in West (Axios) - It's only early April, but parts of the West are already at mid-July levels of dryness — and scientists are warning that the upcoming fire season could be destructive.

Congress Next Week

Tuesday April 27, 2021

Senate Committee on Environment and Public Works – Hearing on the National Climate Bank Act, S. 283

Wednesday April 28, 2021

Senate Committee on Environment and Public Works – Hearing on the Fiscal Year 2022 Budget for the U.S. Environmental Protection Agency

Thursday April 29, 2021

House Committee on Energy and Commerce – Hearing on the Fiscal Year 2022 Budget for the U.S. Environmental Protection Agency

Senate Committee on Energy and Natural Resources – Hearing to Consider the Nomination of Tommy P. Beaudreau to be Deputy Secretary of the Interior

ENS Federal Report April 23, 2021

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