February 2021 Vol. 76 No. 2
Features
Washington Regulatory Outlook: Biden Administration Bring New Mix of Infrastructure Priorities
By Stephen Barlas, Washington Editor
Last December, just a month before Joe Biden became president of the United States on Jan. 21, the Environmental Protection Agency (EPA) finalized the lead and copper rule revisions that will begin to make themselves felt in 2021, as municipalities undertake major corrosion repairs in drinking water systems. These revisions accomplish several goals, but the big one, in terms of replacing underground pipes, is a diminution of the amount of lead service lines that must be replaced annually once lead concentrations reach a certain level.
Many environmental groups are screaming bloody murder about the smaller percentage of pipes that will need replacement. Even water companies, which will bear the cost of the pipe replacements, have mixed feelings about the final rule, which by the way, requires digging companies to be familiar with ANSI/AWWA C810, Replacement and Flushing of Lead Service Lines.
According to Greg Kail, director of communications at the American Water Works Association, “It is also important that they familiarize themselves with the expanded definition of the types of service line materials that must be replaced, lead service line replacement requirements surrounding homeowner engagement in full replacement, timely provision of pitcher filters, and tracking.”
The lead and copper rule revisions are a good example of the implications for water infrastructure players in a Biden administration. Regulations issued by the Trump administration may be revisited and stiffened to suit environmentalists. The lead and copper rule falls into that category.
But that final rule is only one of many that environmentalists are targeting for a Biden administration redress, hoping to, among other things, inject a more aggressive “climate change” policy into many issues. That will be true, for example, at the Federal Energy Regulatory Commission (FERC), where Democratic leadership will attempt to use greenhouse gas emissions to deny more pipeline applications.
Pipeline and other varieties of underground construction could be negatively affected by any final rule from the Army Corps of Engineers, which will be under environmental pressure to restrict “fast track” nationwide permits allowing utilities to move fast on digging projects around wetlands.
In the Biden administration, some infrastructure will be “good” some will be “bad.” Oil and gas pipelines are in the latter category and will suffer regulatorily and legislatively because of their “bad karma” in the eyes of environmentalists. Broadband and water construction will prosper.
Water, sewer prospects
“Climate change is an issue that carries significant implications for water and wastewater service,” said Dan Hartnett, chief advocacy officer for legislative and regulatory affairs, at the Association of Metropolitan Water Agencies. “Our top priority here is expanding EPA’s existing Drinking Water System Resilience and Sustainability Act, which Congress enacted in 2018 as a means to offer funding to help community water systems make their infrastructure more resilient to climate change and extreme weather.
“The one problem with the program as it now stands is that eligibility for grant funding is limited to drinking water systems serving small or disadvantaged communities. All larger drinking water systems — as well as all wastewater systems — are excluded, though they face similar resilience and adaptation needs.”
Hartnett’s group and others will be supporting Sen. Ben Cardin’s (D-Md.) legislation to expand access to drinking water systems of all sizes, while setting up a companion program for wastewater systems. He hopes it can be included in any comprehensive climate change bill that is discussed this year.
The biggest chunk of federal funding for sewer and drinking water system construction comes via the State Revolving Funds (SRFs). The fiscal 2021 appropriations bill passed by the House in June 2020 included $8.5 billion for the Clean Water SRF, which was nearly five times that of current levels. That raised hopes from cities, counties and states that finally Congress was going to fund the Clean Water and Drinking Water SRFs at levels commensurate with need, which is substantially higher than the existing, annual appropriations levels in both instances.
However, when push came to shove, at the end of December, when Congress passed the final fiscal 2021 appropriations bills covering all federal agencies, the numbers for the SRFs were set at approximately their fiscal 2020 levels: $1.126 billion for Drinking Water SRF and $1.638 billion for the Wastewater SRF program.
But hope springs eternal, as Hartnett stated at the end of 2020, “In terms of next year, it appears that the Biden administration wants to make infrastructure a priority, and I am confident that drinking water provisions will be part of any comprehensive infrastructure bill that is able to move through Congress. It remains an open question whether Congress will, in fact, actually be able to pass an infrastructure bill. If they do, I believe that drinking water will be well-represented.”
Fiber funding grows
While there are reasonable hopes that water infrastructure will be boosted in a Biden administration, funding for new broadband construction – given the importance of good Internet connections in this new COVID-inspired working-from-home environment – is already on the way. At the end of 2020, the Federal Communications Commission (FCC) approved $9.2 billion to be spent over the next decade for rural broadband. The money will go to various companies, big and small, with construction capability across the U.S.
The pandemic relief bill Congress passed at the end of December lumped another $3.2 billion to be spent in the upcoming year on top of the FCC funds for low-income families to access broadband through an FCC fund. A one-billion-dollar tribal broadband fund was heaped on top of that.
Energy pipelines may struggle
But pipeline construction is clearly sailing into regulatory and legislative headwinds. The Army Corps of Engineers proposed last fall to trifurcate nationwide permit (NWP12) into three categories: gas pipelines, electric and telecommunications, and water pipelines. These NWPs allow all sorts of digging and dredging around wetlands when very little land will be disturbed, and environmental impact is minimal.
The Corps’ proposal was many-faceted and goes far beyond pipelines, to all sorts of construction such as home building. Moreover, it was issued two years earlier than the 2022 deadline for the statutorily mandated five-year review of all NWPs. Nearly everyone affected, including pipelines and environmentalists, found something to hate about the proposal. This makes it very likely that the Corps will go back to the drawing board in the Biden administration and redo the proposal for the 2022 deadline.
The danger in 2022 is that environmental groups will push for the complete elimination of NWP12 for pipelines. According to Jim Murphy, legal advocacy director at the National Wildlife Federation (NWF), “The use of NWP12 to authorize massive oil and gas pipelines known to have significant, cumulative, adverse impacts on aquatic resources violates…the CWA and the Corps should eliminate NWP12 authorizations and require individual permits for such pipelines.”
The CWA is the Clean Water Act. Any decision to eliminate NWP12 authorizations would have a draconian impact on pipeline construction resulting in much longer timetables for obtaining permits and more cost for doing so.
But the big threat to pipeline construction during the Biden administration comes from FERC. Richard Glick, now one of five commissioners at the FERC, is likely to be named the new Democratic chairman and the makeup of that commission will change from 3-2 Republican to 3-2 Democrat sometime around June. Glick has repeatedly complained that FERC has not rejected new pipeline projects when their greenhouse gas emission projections were troubling, or when the public need for the project was shaky.
As recently as last October, Glick dissented from FERC issuance of a new certificate to the Double E Pipeline, LLC. “Once again, the Commission has failed to seriously consider the need for the pipeline, as well as the consequences it will have for climate change,” he complained.
“In addition, the Commission unjustly blocked would-be intervenors in what would appear to be yet another effort to insulate its review of the project from serious public scrutiny.”
Comments