October 2016 Vol. 71 No. 10
Washington Watch
New Water Infrastructure Grant Programs At Issue In Congress Proposed Rule
The U.S, Senate recently passed bill S. 2848, the Water Resources Development Act (WRDA) of 2016, with a broad bi-partisan vote of 95 to 3. The House is still working on its own version of a WRDA bill.
A key water infrastructure element in S. 2848 is a provision of $70 million so the new Water Infrastructure Finance and Innovation Act loan program, or WIFIA, can start making actual loans. In the two previous fiscal years, Congress has provided funds for the U.S. Environmental Protection Agency to set up WIFIA administration. Another important element is $100 million to the state revolving loan fund program to assist communities where there has been a drinking water emergency, such as Flint, Mich.
S. 2848 authorizes critical U.S. Army Corps of Engineers projects that drive investment in navigation, flood management, and ecosystem restoration. It also provides critical investment to help communities reduce public health risks posed by lead, targets aid to rural drinking water systems, bolsters funding for water technology innovation, jumpstarts an innovative financing program for water infrastructure projects, and makes common sense reforms to the Clean Water Act (CWA) to ensure clean water investments remain affordable to lower-income ratepayers.
The Senate’s version will have to be reconciled with the House version, which ignores water infrastructure and, to a lesser extent, new funding programs in the Senate bill. Both bills have strong bi-partisan support.
These WRDA bills, which Congress tries to pass every two years, chiefly contain budget authorization for the Army Corps of Engineers, and focus on harbors, dams, rivers and other above-ground water resources. The Senate bill, which passed the Environment and Public Works Committee by a vote of 19-1, contains provisions that attempt to supplement the annual appropriations provided to the Clean Water and Drinking Water State Revolving Funds (SRF). Congress has provided slightly diminishing appropriations to SRFs over the years.
The Senate bill has a number of significant new programs which would boost water infrastructure spending. First, it creates a new grant program focused on helping small and disadvantaged communities that lack basic drinking water or wastewater services with $1.4 billion in authorized funding over five years. Another program authorizes $300 million over five years for the replacement of lead water lines. An additional $1.8 billion is authorized over a five-year period to address sewer overflows and stormwater discharges.
It is important to note, however, that the House bill includes none of these provisions, and even if the provisions are included in a “conferenced” bill, one signed by President Obama, there is no guarantee the next Congress will appropriate funds, much less up to the authorization levels.
The same would be true for another amendment in the Senate bill, a $70 million authorization for the Water Infrastructure Finance and Innovation (WIFIA) program created in 2014 in the last WRDA bill. In pushing for Senate approval of the WRDA bill, Sen. Jim Inhofe (R-OK), chairman of the Environment and Public Works Committee, said, “With just $70 million in federal funds, we can provide up to $4.2 billion in secured loans. Those loans must be matched by another $4.4 billion, so the $70 million federal investment will result in $8.6 billion in infrastructure.”
The bill establishes a new trust fund for water infrastructure, funded by fees collected for a voluntary labeling system, with the revenue to be divided equally among capitalization grants for the Clean Water and Drinking Water SRFs. The bill’s language is very general. Pat Sinicropi, senior director, legislative affairs, the National Association of Clean Water Agencies, explains that what is hoped for is that companies making products related to water use, such as soda and toilet tissue, would apply for the right to put a label on their products and pay a fee to the Treasury Department for that right. The label would say something along the lines that a few cents of the price paid by the consumer would go toward assuring clean water.
Construction of Constitution Pipeline now in lap of Federal court
New York’s rejection of the construction of the 124-mile Constitution Pipeline now is the subject of a number of legal challenges with the pipeline filing two lawsuits, one before the U.S. Court of Appeals for the Second Circuit and another with the federal district court. Constitution Pipeline Company LLC is a joint project headed by lead partner Williams Companies Inc. It would connect New York and New England markets with gas supplies from the Marcellus Shale region.
Environmental groups have filed a counter suit in the Court of Appeals arguing the Federal Energy Regulatory Commission approved Constitution without regard to New York’s environmental concerns.
In the lawsuit filed in July by Constitution, and joined by a number of manufacturing and energy trade groups, the company made the argument that New York was unilaterally vetoing a project approved by the FERC. The supporting brief from the industry groups admits that New York can play a “limited role” in pipeline approvals, but in this case had overstepped the boundaries of that authority, which lies “principally” in the hands of FERC.
In April the New York Department of Environmental Conservation (DEC) denied Constitution’s Clean Water Act Section 401 Water Quality Certification, arguing it failed to meet the state’s water quality standards. Williams spokesman Chris Stockton maintains New York made a political decision. The state was pressured by a number of grassroots opponents to Constitution, such as Stop the Pipeline (STP). Anne Marie Garti, founder of STP, claimed local pressure played a very important role in New York’s decision.
Environmental groups have made a number of moves to tamp down Marcellus production and pipeline building. However, Williams pointed out that “Constitution Pipeline worked closely with NYSDEC staff for more than three years to ensure that water quality measures are met before, during and after construction. As a result of that dialogue, Constitution Pipeline voluntarily agreed to the agency’s requests to incorporate re-routes, adopt trenchless construction methodologies, commit to site-specific trout stream restoration, and agreed to fund approximately $18 million for wetland mitigation and banking and approximately $8.6 million for the restoration and preservation of migratory bird habitats.”
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