S.3021, America's Water Infrastructure Act of 2018
Background: America’s Water Infrastructure Act of 2018 was favorably reported by the Environment and Public Works Committee in a unanimous vote on May 22, 2018. The House of Representatives unanimously passed S. 3021 on September 13, 2018.
Floor Situation: The Senate will likely consider S. 3021 soon.
Executive Summary: Following President Trump’s call to rebuild American infrastructure, AWIA authorizes major water infrastructure projects that benefit nearly every state. The bill authorizes important projects to deepen nationally significant ports, maintain inland waterways, upgrade dams and irrigation systems, and increase water storage. The bill also sets up a process to deauthorize $4 billion in unnecessary projects.
NOTABLE BILL PROVISIONS
Title I – Water Resources Development
Subtitle A – General Provisions
Section 1102 – Study of the future of the United States Army Corps of Engineers
Directs the secretary of the Army to contract with the National Academy of Sciences to evaluate and provide recommendations to Congress on the ability of the Corps to carry out its statutory civil works missions and responsibilities. The study will evaluate and provide recommendations on improving the Corps project delivery process, the appropriations process, and its organizational structure.
Section 1105 – Non-federal engagement and review
Requires the secretary to give public notice when developing and issuing any new or revised guidance for a water resources development law.
Section 1107 – Access to real estate data
Requires the secretary to make publicly available online a list of all real estate assets owned, operated, or managed by the Corps of Engineers, including real estate plat descriptions and geographic information systems and geospatial information.
Section 1112 – Hurricane and storm damage protection program
Authorizes the secretary to carry out a $75 million pilot program to award contracts for authorized hurricane and storm damage reduction projects instead of awarding contracts on a project-by-project basis.
Section 1120 – Transparency and accountability in cost-sharing for water resources projects
Mandates each Corps district to maintain a balance sheet for each project to be provided to non-federal interests that contribute funds to the project. If a project comes in under budget, the Corps will transfer the excess funds back to the non-federal interest in accordance with whatever cost-share agreement governs the project. The non-federal interest can use those funds as its cost-share for other Corps projects, or for operation and maintenance of the current project where cost-share is required.
Section 1137 – Non-federal implementation pilot program
Extends through 2023 a pilot program to evaluate the cost-effectiveness of allowing non-federal interests to carry out flood risk management, hurricane and storm damage reduction, and other water infrastructure projects. Increases the number of pilot projects from 15 to 20.
Section 1141 – Project studies subject to independent peer review
This provision extends a requirement that the secretary carry out independent peer reviews for feasibility studies until November 8, 2024, and report on the effectiveness of peer review.
Section 1153 – Construction of water resources development projects by non-federal interests
Clarifies that non-federal interests carrying out federally authorized water resource development projects do not need to obtain a permit that the federal government would not need to have sought if it were running the project. Requires data sharing between federal and non-federal entities engaged in water resource projects.
Section 1154 – Corps Budgeting
This section directs the secretary to annually compile and publish a list of all feasibility studies, projects, and separable elements, that have not been completed; and a list of major federal operation and maintenance needs under the control of the Corps, with certain considerations. This section also requires the president to ensure that the Corps’ annual budget request aligns the potential benefit-cost ratio for water resources development projects with the rate used by the Corps during project plan formulation and evaluation. It also requires that the president demonstrate transparent criteria and metrics in the evaluation and selection of projects included in the annual Corps budget request.
Section 1157 – Corps of Engineers continuing authorities program
Increases by 25 percent authorizations for several Corps continuing authorities programs, including: storm and hurricane restoration and impact minimization; small river and harbor improvements; shore damage prevention or mitigation; regional sediment management; small flood control; aquatic ecosystem restoration; project modifications for improvement of environment; and emergency streambank and shoreline protection projects.
Section 1162 – Extended community assistance by the Corps of Engineers
Allows a locality receiving emergency assistance to request to extend such assistance beyond the time originally provided for by the secretary.
Section 1163 – Dam safety
Extends National Dam Safety Program Act funding through 2023.
Section 1166 – Advanced funds for water resources development studies and projects
Permits the secretary to accept funds from a state or recognized Indian tribe to carry out water resource projects for all project purposes beyond flood risk management and navigation.
Subtitle B – Studies and Reports
Section 1201 and Section 1202 – Authorization of proposed feasibility studies and additional studies
Authorizes a number of feasibility studies relating to: water quality and conservation habitat areas; navigation; flood risk reduction and management; ecosystem restoration; or hurricane and storm damage risk reduction for projects in Arizona, Arkansas, Kentucky, Louisiana, Missouri, California, New York, Texas, Tennessee, Illinois, and Virginia.
Section 1212 – Feasibility studies for mitigation of damage
Directs the secretary to furnish a report on impediments to completing feasibility studies for certain projects that would mitigate damage from weather or other events.
Section 1218 – North Atlantic Division report on hurricane barriers and harbors of refuge in New England
Directs the secretary to furnish a report on the durability and resiliency of existing hurricane barriers and harbors of refuge in the North Atlantic Division of the Army Corps of Engineers.
Subtitle C – Deauthorizations, Modifications, and Related Provisions
This subtitle deauthorizes or modifies specific projects in Maine, Massachusetts, Florida, Kentucky, Delaware, New Jersey, New Hampshire, Missouri, North Dakota, Oregon, Tennessee, Wisconsin, California, Washington, Georgia, and Alabama.
Section 1301 – Deauthorization of Inactive Projects
Sets up a process to identify and deauthorize $4 billion worth of authorized feasibility studies for projects that lack local support or federal and non-federal resources, or have an outdated purpose. Directs the Corps to list studies that have not received funding in 10 years and solicit public and state government comment. Projects on the final list will be deauthorized unless Congress disapproves the deauthorization.
Section 1315 – Corps of Engineers bridge repair program for New England evacuation routes
Subject to appropriations, this section authorizes the Corps to repair or replace any Corps-owned and operated bridges in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, or Vermont, that would be needed during extreme weather.
Section 1327 – Project completion for disaster areas
Directs the secretary to expeditiously carry out flood risk management or hurricane and storm damage risk reduction projects in Texas, Florida, Georgia, Louisiana, South Carolina, Puerto Rico, or the U.S. Virgin Islands.
Section 1330 – Project deauthorization and study extensions
Extends the time frame, from seven to 10 years, for automatic deauthorization of projects authorized under the Water Resources Reform and Development Act of 2014 that have not had funds obligated for construction. The time that a project’s locally preferred plan is waiting for a decision from the Corps does not count. It also extends, from seven to 10 years, the time frame for automatically deauthorizing incomplete feasibility studies.
Subtitle D – Water Resources Infrastructure
Section 1401 – Project authorizations
Authorizes projects relating to navigation, flood risk management, ecosystem restoration, harbor expansion, and lock management in Arkansas, Texas, Georgia, Tennessee, New Mexico, Florida, Puerto Rico, Washington, Hawaii, California, Michigan, and New York. The programs authorized in this section carry a total estimated cost of $8.26 billion.
Title II – Drinking Water Improvement
Section 2002 – Clean, safe, reliable water infrastructure
Permits states to use a portion of their Drinking Water State Revolving Loan Fund to protect source water in areas delineated by that state in its source water protection plan.
Section 2005 – Drinking water infrastructure resilience and sustainability
Allows the administrator of the EPA to issue grants to states to help address drinking water contamination. If the administrator or a court finds the contamination was detected or treated using federal funds, and the contamination violated a law administered by the administrator, a guilty party in the case must promptly reimburse the administrator for the funds. Authorizes $4 million for fiscal years 2019 and 2020 for grants on drinking water resilience and sustainability.
Section 2022 – American iron and steel products
Extends the requirements on purchases of iron and steel components using DWSRF funds be manufactured in the United States for five fiscal years.
Section 2023 – Authorization for capitalization grants to states for State Drinking Water Treatment Revolving Loan Funds
This section authorizes $4.4 billion in appropriations over three years for capitalization grants awarded to drinking water loan funds. The amounts are: $1.174 billion in fiscal year 2019, $1.3 billion in fiscal year 2020, and $1.95 billion in fiscal year 2021.
Title III – Energy
Section 3001 – Modernizing authorizations for necessary hydropower approvals
Authorizes the Federal Energy Regulatory Commission to extend the time period for a licensee to commence construction of a hydropower project for up to 10 years from the date the license is issued. Also authorizes FERC to extend preliminary permits for up to eight years.
Section 3002 – Qualifying conduit hydropower facilities
Increases the cap for qualifying conduit hydropower facilities from five to 40 megawatts and reduces the timeframe to contest FERC’s determination of eligibility for a qualifying facility from 45 to 30 days.
Section 3003 – Promoting hydropower development at existing nonpowered dams
Directs FERC to issue a rule within 180 days to establish an expedited licensing process for non-federal hydropower projects at existing nonpowered dams. Stipulates that the expedited process should result in a final decision on the FERC license application two years after the receipt of a completed application.
Section 3004 – Closed-loop pumped storage projects
Directs FERC to issue a rule within 180 days to establish an expedited licensing process for closed-loop pumped storage hydropower projects. Stipulates that the expedited process should result in a final decision on the FERC license application two years after the receipt of a completed application. Also requires FERC to hold a workshop on the potential opportunities for development of closed-loop pumped storage projects at abandoned mine sites.
Section 3005 – Considerations for relicensing terms
Encourages early action by hydropower licensees for project-related investments such as new capacity, efficiency, modernization, environmental, and recreation projects over the term of the existing license by directing FERC to consider such investments when issuing a new license.
Section 3006 – Fair ratepayer accountability, transparency, and efficiency standards
Amends the Federal Power Act to provide that the failure of FERC to accept or deny a rate change within the 60-day window because the agency has a two-two split, a vacancy, incapacity, recusal, or a lack of quorum, shall be treated as a FERC order for purposes of rehearing and court review.
Section 3007 – J. Bennett Johnston Waterway hydropower extension
Authorizes FERC to extend the time period during which the licensee is required to commence project construction on three projects on the Red River in Louisiana for up to six years. Further authorizes FERC to reinstate the licenses if they have expired prior to the date of enactment of this act.
Section 3008 – Stay and reinstatement of FERC license no. 11393 for the Mahoney Lake hydroelectric project
Directs FERC, at the request of the licensee, to continue the stay of the hydroelectric license for the Mahoney Lake project in Alaska for up to 10 years and extend the construction commencement date for up to six years.
Section 3009 – Strategic petroleum reserve drawdown
Mandates sale of 5 million barrels of crude oil from the Strategic Petroleum Reserve during fiscal year 2028.
Title IV – Other Matters
Section 4101 – Stormwater infrastructure funding task force
Directs the EPA administrator to establish a voluntary stormwater infrastructure funding task force. The task force will submit a report with its recommendations 18 months after enactment of this act.
Section 4103 – Technical assistance for treatment works
Amends section 104 of the Clean Water Act to allow the EPA to make grants to qualified nonprofit organizations to provide technical assistance relating to achieving CWA compliance, or obtaining financing for, wastewater infrastructure in rural, small, and tribal municipalities. When determining which nonprofit organizations will provide assistance, this section instructs the administrator of the EPA to consult with the states to determine what assistance the publicly owned treatment works find most beneficial and effective. This section authorizes $25 million for each of fiscal years 2019 through 2023.
Section 4104 – Amendments to Long Island Sound programs
Reauthorizes the Long Island Sound Stewardship Program through fiscal year 2021; authorizes $40 million for each of fiscal years 2019-2023 for the Long Island Sound Grant Program; and reauthorizes the Long Island Sounds Stewardship Grant through 2023. It makes updates to better coordinate federal restoration activities in the watershed and continue improvements in the sound.
Section 4105 – Authorization of appropriations for Columbia River Basin restoration
Authorizes to be appropriated $30 million for each of fiscal years 2020 and 2021 for the Columbia River Basin program.
Section 4201 – WIFIA reauthorization and innovative financing for state loan funds
Reauthorizes the Water Infrastructure Finance and Innovation Act program and removes the pilot designation of this program. This section provides important amendments to allow the Corps and other federal agencies with federal credit instruments to enter into an agreement with the EPA to service loans for their programs.
Creates a new financing program within WIFIA for states to be able to bundle smaller projects. Improves the process for state applications and provides additional sources of funding for state infrastructure financing authorities applying for WIFIA loans. This section expedites evaluation of these applications and places the application fee on state revolving funds, removing the burden on the communities. It prevents these combined projects from having to do any additional environmental reviews and allows for the federal cost share of the project to cover up to 100 percent of the total project cost.
Ensures that the current SRF and WIFIA funds are protected.
Section 4304 – Water infrastructure and workforce investment
Directs the administrator of the EPA to create a competitive grant program to assist workforce development and career opportunities in the water utility sector. Authorizes $1 million in appropriations for the program for each of fiscal years 2019 and 2020.
Section 4307 – Predatory and other wild animals
Directs the director of the U.S. Fish and Wildlife Service to use the most expeditious procedure practicable to process and administer certain take permits.
The administration has not yet put forward a statement of administration policy on the bill. President Trump has spoken in favor of infrastructure improvement.
The bill is complies with discretionary Cut-Go protocols by fully offsetting the costs of projects and programs. It includes $3.7 billion in authorization above the baseline while deauthorizing $4 billion.
On the mandatory side, CBO’s preliminary estimate states that the bill will cause a net deficit decrease of $230 million over 10 years. The bill includes $333 million in direct spending offsets. This total is cut by $103 million from projected reductions in revenue. The Joint Committee on Taxation estimates that funds authorized for capitalization grants to State Revolving Funds would be used by state and local governments as leverage to issue tax-exempt bonds. These bonds would reduce federal revenues by $103 million between 2019 and 2028.
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