April 23, 2020
In this alert:
Supreme Court sets new test on groundwater discharges to navigable waters
On April 23, the U.S. Supreme Court released a decision in a long-awaited case, County of Maui, Hawaii v. Hawaii Wildlife Fund, on whether a pollutant that travels through groundwater to a “water of the U.S.” requires a federal permit. In a 6-3 decision, the justices said that a permit is required “when there is a direct discharge from a point source into navigable waters or when there is a functional equivalent of a direct discharge.” This decision may be relevant for water supply operators, wastewater treatment, flood control and stormwater management agencies that own and manage water storage and treatment infrastructure.
The case in question involves Maui County, Hawaii’s practice of injecting millions of gallons of treated sewage wastewater into four underground wells. The county has been using this process since the mid-1970s and previously had not been required to obtain a Clean Water Act (CWA) permit. However, Hawaii Wildlife Fund challenged this approach, arguing the county should be required to obtain a CWA National Pollution Discharge Elimination System (NPDES) permit since partially treated wastewater eventually discharges into the Pacific Ocean through a groundwater conduit.
The court agreed, with the caveat that “time and distance” are equally important. The example used in the decision states that when a “pipe emits pollutants that travel a few feet through groundwater…,” a NPDES permit is clearly required. However, the decision also states, if a “pipe ends 50 miles from navigable waters…” and pollutants “travel with groundwater” to “navigable waters…many years later,” a NPDES permit is likely not required.
The case has been sent back to the 9th Circuit Court instructing them to use the new test to determine liability in the case.
Senate passes smaller stimulus package; House expected to vote today
Earlier this week, the U.S. Senate passed a $484 billion supplemental coronavirus (COVID-19) relief bill to primarily replenish the Paycheck Protection Program (PPP), expand testing and provide funding to hospitals. The bill now moves to the House who is expected to vote on the bill today.
Highlights of the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266):
While the bill does not provide direct funding to state and local governments and related entities, Democrats hope to address this in a fourth expected stimulus package to address economic challenges due to COVID-19.
WOTUS rule effective June 22; Lawsuits anticipated
On April 22, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) final “Navigable Waters Protection Rule,” to revise the definition of “waters of the U.S.” (WOTUS) within the Clean Water Act (CWA), was published in the Federal Register. The rule will take effect on June 22, 2020, 60 days after its publication.
The term “waters of the U.S.” has been around since the 1890’s but in 1972 was added to the CWA to differentiate which waters fall under federal v. solely state permitting authority. However, due to several Supreme Court decisions, the definition has become murky, leading to confusion in the field about the scope of federal authority.
In 2015, the Obama administration came out with a controversial new WOTUS definition that was immediately challenged in the courts. As a result, late last year almost half of the county was under the 2015 WOTUS rule and the other half under the pre-2015 rule.
Under the final definition, four categories of waters are federally regulated:
Under the rule, tributaries are in if they are perennial (run year-round) or are intermittent (run consistently at certain times of the year and contribute surface flow to a traditional navigable water (i.e. river) in a typical year. A typical year is based on a 30-year rolling average of weather conditions. Ditches are generally out unless they meet the tributary definition and are relocated/constructed in a tributary or were constructed in an adjacent wetland and contribute perennial or intermittent flow to a traditional navigable water (TNW) in a typical year.
In layman’s terms, if your ditch is wet 365 days a year, and connects to a TNW, it may be jurisdictional. If your ditch is wet on a seasonal basis and connects to a TNW, it may also be jurisdictional. If your ditch is only wet during rain events, regardless of duration, it is likely not jurisdictional. Since the term “seasonal” differs across the country, many of these determinations will be made via watershed.
The 340-page rule also includes 12 categories of exclusions, i.e. those waters not considered WOTUS, including ephemeral features, groundwater, certain ditches, prior converted cropland and waste treatment systems.
This rule is part of the two-step process that the Trump administration made to withdrawal and rewrite the 2015 WOTUS rule. Step one—to withdrawal the 2015 rule and recodify the 1986 WOTUS regulations—became effective on December 23, 2019. The Navigable Waters Protection Rule, once effective, will replace the December 2019 WOTUS definition.
As with the 2015 WOTUS rule, there are expected legal challenges. The Center for Biological Diversity, Waterkeeper Alliance and Center for Food Safety plan to file immediate lawsuits in the courts, which may lead to split court decisions. This may result in a situation where half of the county is under one rule and the other half under a different rule. As a result, it is likely that the U.S. Supreme Court will have to weigh in sooner rather than later on the fate of the 2020 WOTUS rule.
April 21, 2020
Senate committee releases draft WRDA bill; hearing witnesses announced
Today, leaders of the Senate Environment and Public Works (EPW) Committee released draft legislation that will be used as a basis for a 2020 Water Resources Development Act (WRDA) in the Senate. Introduced by U.S. Senators John Barrasso (R-Wyo.), Tom Carper (D-Del.), Shelley Moore Capito (R-W.Va.) and Ben Cardin (D-Md.), the America’s Water Infrastructure Act of 2020 (AWIA 2020) includes “approximately $17 billion in new federal authorizations.”
In conjunction with AWIA, the committee also released the Drinking Water Infrastructure Act of 2020. The bill would reauthorize several Safe Drinking Water Act programs to provide about $2.5 billion in funding and technical assistance for drinking water needs. This bill may move in conjunction with AWIA.
WRDA is the process by which U.S. Army Corps of Engineers civil works projects are authorized for navigation, flood control, ecosystem restoration and more. WRDA also institutes policy changes for Corps oversight of civil works facilities and infrastructure. Since NWC members own and operate ports, inland waterways, flood control channels, levees, dams, hydropower, and other infrastructure, they are directly impacted by WRDA policy changes.
According to the section-by-section summary of AWIA, some of the issues addressed include:
NWC will be undertaking a more comprehensive review of the draft text in the next day or so.
In lieu of a hearing on the draft text, the EPW Committee is holding an “information gathering process” tomorrow, April 22, with five stakeholders via written text. The witnesses are: Niels Hansen, Vice-President, Public Lands Council; Stephen E. Sandherr, Chief Executive Officer; Associated General Contractors of America (AGC is a NWC member); Dan Coughlin, Board Member–Wyoming Association of Rural Water Systems, on Behalf of the National Rural Water Association; Diane VanDe Hei, Chief Executive Officer, Association of Metropolitan Water Agencies; and Tony Pratt, President, American Shore and Beach Preservation Association. The committee will be accepting public comments on the draft bills until May 1.
NWC’s Legislative Policy Committee will be submitting comments on the draft bill. If you are interested in serving on LPC, please let Julie Ufner, NWC President, know. The next call for LPC is Tuesday, April 28.
To read a one-page summary of AWIA, click here.
April 16, 2020
Senate EPW committee to open process to vet draft WRDA package
On Wednesday, April 22, the Senate Environment and Public Works (EPW) Committee is scheduled to undertake an “information-gathering process” on draft legislation for American’s Water Infrastructure Act of 2020. This bill is intended to be the vehicle that moves the Water Resources Development Act (WRDA) in 2020.
The informational gathering process is two-fold. Essentially, the first part is a paper hearing for EPW committee members. The Committee is accepting written statements from five stakeholders on April 22, which will be shared electronically with EPW members and posted on the EPW website. By April 24, EPW member questions will be shared with the five stakeholders, with written responses due back to the Committee by May 1.
Concurrently, or just before April 22, EPW will post two draft bills to its website, including WRDA 2020 and another bill, The Drinking Water Infrastructure Act of 2020, which may move in conjunction with WRDA 2020. The Committee requests that all stakeholder comments on the draft bills be submitted by 4pm ET on Friday, May 1. Details on how to comment, as well as the process, can be found here.
When the bills are posted, we will let our members know.
March 24, 2020
Third coronavirus bill remains stalled in the Senate—votes are possible on Tuesday
Since the cloture votes on the third coronavirus (COVID-19) stimulus package failed last Friday and Monday, Senate Republicans and Democrats have been frantically negotiating. According to news sources, Senators are close on a deal. Outstanding issues included details for direct cash payments to individuals; employee and employee support and protections, suspension of payroll taxes; aid to airlines and other struggling industries. To read more, click here or here.
Concurrently, yesterday U.S. House of Representatives Democrats have introduced their own $2.5 trillion aid package entitled “Take Responsibility for Workers and Families Act” (H.R. 6379). To read the bill, click here. To read a summary of the bill, click here
Water Supply Rule is officially withdrawn
On March 24, the U.S. Army Corps of Engineers (Corps) notice to withdraw the “Use of U.S. Army Corps of Engineers Reservoir Projects for Domestic, Municipal & Industrial Water Supply” (known as the Water Supply Rule) was published in the Federal Register. The Water Supply Rule, originally proposed by the Corps on December 16, 2016, was intended to clarify agency policy on reservoirs. However, after states and other entities expressed concerns that the policy overturned states authority, The Corps announced earlier this year that the proposed rule would be withdrawn. To read the withdrawal notice, click here.
Department of Labor working on guidance for paid sick time exemptions
On March 18, President Trump signed into law the Families First Coronavirus Response Act (H.R.
6201/ P.L. 116) which included two weeks of paid sick leave for employees of businesses with between 50–500 employees. These businesses will be able to claim a tax credit on their taxes. For businesses under 50 employees, there is a caveated exemption, which will be defined by the Department of Labor (DOL) (expected in April 2020). This provision also applies to public sector employees but without the tax credit. For more information, click here or here.
Administration releases list of industries considered ‘critical’ during coronavirus
On March 19, the Cybersecurity and Infrastructure Security Agency released a memorandum on “Guidance on the Essential Critical Infrastructure Workforce” which follows President Trump’s “Coronavirus Guidance for America” on critical employees within infrastructure industry. Those industries considered “critical” during the coronavirus pandemic includes chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial, food and agriculture, government facilities healthcare and public health, information technology, nuclear, transportation systems and water. To read about the types of essential workers in each category, click here to read the memo.
NWC News Alert – Washington Update
January 8, 2020
Good afternoon everyone and Happy New Year! Welcome to a new decade! Before we get too far into 2020, we have a couple of updates for you. As always, if you have any questions or comments, please do not hesitate to contact us.
House panel holds first WRDA-related hearing for 2020
On Thursday, January 9, the House Transportation and Infrastructure Committee’s Water Resources and the Environment Subcommittee is holding a hearing on potential next steps for a 2020 Water Resources Development Act (WRDA) authorization bill. Entitled “Proposals for a Water Recourse Development Act of 2020, the hearing will commence at 10:00am ET. The panel will feature two U.S. Army Corps of Engineers witnesses—R.D. James, Assistant Secretary of the Army (Civil Works) and Lieutenant General Todd Semonite, Chief of Engineers and Commanding General—to brief members on the agency’s 2019 Report to Congress on Future Water Resources Development and discuss potential inclusions in a WRDA 2020 bill. More information about the hearing, including witness testimony, background information and a live webcast can be found here once available.
House WRDA 101 Session scheduled in late January
Just off the presses: We just confirmed with committee staff that NWC is hosting a WRDA 101 session on the House side on Friday, January 31, 2020 from noon-1:30pm. We are working with the committee to identify speakers and will have more information soon. If you will be in DC during this time, please consider joining us! Please RSVP to Carole (email@example.com) no later than Jan. 27 if you plan to attend.
President’s budget to be released in February
It is expected that the President’s 2021 budget for federal agencies will be officially announced on Feb. 10. Unlike previous years which released budget highlights, the administration plans to distribute a comprehensive budget proposal. More information to come….
NWC Legislative Summit, March 9-11, 2020: REGISTER NOW
Plan to attend NWC’s 2020 Legislative Summit, March 9-11th in Washington, D.C., to hear from high-ranking Congressional and Executive branch officials and industry leaders about the policy and program expectations for the coming year. Invited speakers include the leadership of both the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee; from the Executive Branch, the Honorable R.D. James, Assistant Secretary of the Army (Civil Works) and Lieutenant General Todd T. Semonite, Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers: Senators John Barrasso (R-Wyo.) and Tom Carper (D-Del.) Chairman and Ranking Member of the Senate Environment and Public Works Committee and Representatives Grace Napolitano (D-Calif.) and Bruce Westerman (R-Ark.), Chairwoman and Ranking member of the House Transportation and Infrastructure Committee’s Water Resources and the Environment Subcommittee respectively. Additional speakers will be announced in the coming weeks. The 2020 NWC Legislative Summit will be held at The Madison Washington DC, A Hilton Hotel which is conveniently located on 15th Street near the White House. Again this year, we will be co-hosting our annual Congressional Reception with the Mississippi Valley Flood Control Association. Tuesday March 10 from 5:30pm -7:00pm in the Dirksen Senate Office Building, room SD-106. Don’t miss out! Register now! We look forward to seeing you in Washington.
SAVE THE DATE: NWC Annual Meeting, September 23-25, 2020
Our 2020 Annual Meeting will be held September 23-25, 2020 at the Hilton Americas in Houston, Texas. Look for registration in early July.
NWC News Alert
September 25, 2019
National Waterways Conference Introduces New President
The Board of Directors of the National Waterways Conference, Inc. is pleased to announce that Ms. Julie Ufner will take over as President and CEO effective November 4, 2019. Ufner will succeed longtime NWC President Amy Larson, who will step down at the end of the year, ensuring a seamless leadership transition.
“My goal is to build on the successes of Amy and the NWC membership. NWC is the only national organization advocating for water resources issues with a collective membership representing navigation, flood control, water supply, hydropower, and recreation sectors. I am honored to become a part of this well-respected organization,” Ufner said.
Previously, Ufner held several other positions in Washington, D.C., including Associate Legislative Director for Environment, Energy and Land Use at the National Association of Counties (NACo). Since 2002, she has worked with NACo’s 3,069 counties on the development and implementation of federal policies with the U.S. Congress, the White House, and numerous federal agencies, including the U.S. Army Corps of Engineers and the Environmental Protection Agency. Ufner began her career in Washington with U.S. House of Representatives member Phil English (Pa.) who served on the Ways and Means Committee.
In announcing the Board’s decision, newly elected Chairman David Yarbrough, Director of the Tulsa Port of Catoosa, stated, “We are thrilled that someone with Julie’s expertise and experience will take the helm. She is a successful policy advocate, and well respected for her stakeholder engagement and partnership building acumen.”
Mrs. Larson, who has served as NWC’s President since March 2008, similarly praised the Board’s selection. Reflecting on her tenure, Larson stated, “It has truly been an honor and a privilege to have worked with so many dedicated professionals for the past eleven and a half years. My decision to step down was not easy, but I know that NWC will continue as the nation’s premier water resources organization under Julie’s leadership. I will be forever grateful to have had the opportunity to lead this amazing group of people. Their dedication and support for me personally and for the nation’s water resources reflect their integrity, commitment and professionalism.
The immediate past Chairman, Randy Richardson, Executive Director of the Port of Memphis, stated, “NWC has been extremely fortunate to have had an exceptional leader like Amy Larson as President for the last eleven years. I look forward to Julie’s tenure and wish Mrs. Larson great success as she transitions to consulting on water resources policy issues in Washington, D.C.”