Water Resources Development Act heads for conference committee

Statements of Administration Policy indicate that Administration supports intent of the legislation but is critical of certain provisions and calls for improvements

With the House and Senate committed to differing versions of a Water Resources Development Act (“WRDA”), the bill will be considered by a conference committee.  The House of Representatives overwhelmingly passed its version of the bill, HR 3080, with a vote of 417-30 on October 23, 2013.  The Senate passed its version in May with a vote of 83-14—and for procedural reasons, offered it as an amendment in the nature of a substitute to House bill and then passed it with unanimous consent on October 31st.

WRDA addresses water infrastructure projects to be carried out by the Army Corps of Engineers (“USACE”).   Many expect a WRDA to pass every two years, since a biennial pattern emerged in the late nineteen-eighties and early 90’s, following passage of the landmark Water Resources Development Act of 1986, which established cost-sharing rules and authorized 262 projects.  But time between WRDA’s has been varied, ranging from one year to seven years.  The last WRDA passed in 2007 over presidential veto.

President George W. Bush vetoed the 2007 legislation stating that it “lacks fiscal discipline” and “does not set priorities.”  Congress successfully overrode the veto and enacted the bill, which had a $20 billion price tag.

The current House and Senate bills are much leaner with costs projected at $8.2 billion and $12.5 billion, respectively.  The House bills takes fiscal responsibility a step further and offsets the costs by deauthorizing $12 billion worth of projects are no longer needed or have become too costly and bans earmarks. While the current administration is supportive of efforts by both chambers to meet water resource challenges in a fiscally responsible way, the Statement of Administration Policy for each bill does cite concerns and suggest improvements.

The administration was critical of each bill’s attempt to improve project permitting, arguing that he provisions could “slow project approval and do not adequately protect communities, taxpayers, or the environment.”  In addition, the administration believes that these provisions constrain “science-based decision making,” which increases the risk of litigation and “undermines the integrity of several foundational environmental laws.”

The House bill’s project permitting provisions have garnered additional criticism from the environmental community. NRDC Legislative Director, Scott Slesinger issued a statement maintaining that HR 3080 curtails public involvement in the environmental review process and does not address the real problem of inadequate funding.

According to the House Transportation and Infrastructure Committee, the provisions would cut the approval process from 15 years to 3 years largely by setting hard limits on the time and cost of studies, requiring USACE district, division and headquarters personnel to review studies concurrently, consolidating studies and eliminating duplicative studies—such as having the USACE complete a cost review immediately after the non-federal partner has completed a cost review, streamline the review process by requiring the Secretary of the Army to hold a lead role in facilitating reviews, setting deadline for the consultative process and ensuring collaboration, and allowing for expedited permit processing for non-federal public interests and public utility companies.

The administration also sees as problematic provisions in both bills that require greater federal funding and greater federal responsibility for certain activities.  In both cases, the administration states that these provisions damage key reforms from the 1986 WRDA.

While the bills are largely similar, major differences include the amount of funding authorized and designation of whether congress or the executive branch has the final authority to approve projects.  Also the House bill does not include new Water Infrastructure Finance and Innovation Act (“WIFIA”) authorization, while the Senate bill does.  But a stand-alone WIFIA authorization is expected to be introduced in the House.

 The Senate and the House announced their conferees with the first two weeks of November.  In all, a total of 37 conferees have been named—9 senators and 28 representatives.  The division between parties is nearly even with 19 Republicans and 18 Democrats.  Senate Environment and Public Works (“EPW”) Committee Chairman Barbara Boxer (D-CA) will chair the conference committee and will be joined with additional committee leaders: House Transportation and Infrastructure (“T&I”) Committee Chairman Bill Shuster (R-PA), House Natural Resources Committee Chairman Doc Hastings (R-WA), Ranking Members David Vitter (R-LA) from the Senate EPW Committee, Nick Rahall (D-WV) from the House T&I Committee and Peter DeFazio (D-OR) from the House Natural Resources Committee.  DeFazio also serves on the T&I Committee.

While committee leaders from both chambers have signaled that they are sticking to their guns on their unique provisions, they are optimistic about passing the WRDA.

Senator Boxer said, “I am very pleased that we are taking another important step forward to getting a job-creating water resources bill to the President’s desk. We must invest in our nation’s flood control projects, navigation routes and ports, and ecosystems, and I look forward to working with my House and Senate colleagues on a final conference report with those goals in mind.”

 

David Vitter said, “WRDA is one of the single most significant pieces of infrastructure legislation we’ve voted on this year, and I look forward to working to get a final bill that includes our Senate provisions. We have the opportunity to reform the Corps of Engineers, streamline flood protection projects, and improve our waterways and infrastructure all in one bill. This is a huge benefit for our entire country.”

“This is an excellent team of knowledgeable, thoughtful, and hard-working Members of Congress,” Bill Shuster said. “I look forward to their valuable input as we work towards a fiscally responsible final measure that improves our economic competitiveness and helps promote job growth through strengthening our water resources infrastructure.”

“I am confident that the same cooperative spirit that was used to advance the Water Resources bill in the House last month will be employed to get this pro-jobs measure across the finish line,” said Nick Rahall. “I look forward to working with this outstanding group of Members and our Senate colleagues to produce a conference report that appropriately invests in our water infrastructure and which earns the strong support of both chambers.”