On Thursday, September 15, the Senate voted 95-3 in favor of the Water Resources Development Act of 2016, S. 2848 (WRDA). The headline feature of the bill is funding for cities dealing with lead emergencies like the one that affected Flint, Michigan, but the bill also contains provisions that are important to businesses in sectors including construction, transportation, and electric utilities. It is unclear whether the House will consider the bill before the November election.

Specifically, the Senate version of the WRDA includes nearly $10.6 billion in funds for a range of water infrastructure projects across the country.[1] They include 29 Army Corps of Engineers projects—totaling nearly $6 billion in spending over 10 years—including improvements to harbors, river channels, locks, and flood control infrastructure.[2] The bill also authorizes the creation of a new FEMA grant program to help states assess and plan for rehabilitation of nonfederal dams.[3]

Further, the bill gives billions to state and local governments. It includes $220 million for states and local governments responding to lead contamination in drinking water infrastructure.[4] Additionally, WRDA would make over $3 billion available for state and local drinking water and sewer projects through grants and revolving loan programs.[5] Finally, the bill authorizes spending for a number of regional projects including Everglades restoration, the Great Lakes Restoration Initiative, and the Lake Tahoe Restoration Act.[6]

The WRDA has additional important provisions. The Senate version expands federal and state environmental agencies’ enforcement authority with respect to coal combustion residuals (CCR or coal ash).[7] In particular, the provisions encourage states to establish permit programs for coal ash ponds and give EPA direct authority to enforce the CCR Rule,[8] which became effective October 19, 2015. The bill would allow state permit programs to include different technical standards from the federal standards, but requires that they be at least as protective as the federal rules. WRDA also provides that if a state decides not to establish a permit program, or if EPA disapproves of a state’s program, the state will be deemed a “non-participating state.” EPA may create its own permit program for each non-participating state. The provisions of the CCR Rule, however, would remain self-implementing in states without either a state or a federal permit program.

Now that the Senate has passed WRDA, attention shifts to the House, which may not address its own version of the bill until after the November election. The House version is significantly narrower, authorizing only $5 billion in projects—limited to projects directed by the Army Corps of Engineers.[9] However, House Democrats, including Flint Representative Dan Kildee, have said they will push for the inclusion of funds for local drinking water infrastructure projects.[10] The current House version also omits the coal ash provisions adopted by the Senate.

Please follow the Energy and Environmental Law Advisor for updates, or contact a member of Schiff Hardin’s Environmental Group with any questions about the Water Resources Development Act of 2016.

 

[1] Congressional Budget Office estimate for 10-year period beginning in 2017. Congressional Budget Office, Cost Estimate, S. 2848, Water Resources Development Act of 2016, at 1 (June 17, 2016), available at https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/s2848.pdf.

[2] Id. at 4.

[3] § 7304.

[4] § 7107.

[5] §§ 7201(f), 7202, 7106(i).

[6] CBO Estimate at 3-4.

[7] § 8001.

[8] Disposal of Coal Combustion Residuals from Electric Utilities, 80 Fed. Reg. 21302 (Apr. 17, 2015).

[9] House Transportation and Infrastructure Committee, WRDA 2016 at 2 (2016), available at http://transportation.house.gov/wrda-2016/.

[10] Statement by Congressman Dan Kildee on the Senate Passage of the Water Resources Development Act (Sept. 15, 2016), http://dankildee.house.gov/statement-by-congressman-dan-kildee-on-the-senate-passage-of-the-water-resources-development-act/.