Washington Update

National Waterways Conference
6 February 2015

Here’s a recap of a busy week in the Nation’s Capital.  Developments this week present challenges for the development and management of the nation’s water resources, particularly along our coasts and inland rivers.    

FY16 Budget Released

The FY16 budget released on February 6 would fund the Army Corps of Engineers’ Civil Works program at $4.7 billion, well below the FY15 appropriation of $5.5 billion, and only slightly higher than last year’s proposed budget of $4.5 billion.   

The trend towards an increase in the O&M budget, along with a decrease in the construction budget, continues this year with a proposed cut of 29 percent in the construction budget, which would be funded at $1.172 billion, compared to the FY15 appropriation of $1.63 billion.  O&M funding would be at $2.7 billion, compared to FY15 funding of $2.9 billion.

O&M funding would include $915 million from the Harbor Maintenance Trust Fund, compared to FY15’s $1.1 billion, and well below WRRDA’s target.  The WRRDA allocation of 10% for small ports was also not followed, with no funds at all for those ports and waterways. Olmsted would receive funding of $180 million, in accordance with WRRDA, but the budget does not account for the full revenues in the Inland Waterways Trust Fund. 

The Mississippi River and Tributaries program would take a substantial hit, with a budget of $225 million, compared to the FY15 appropriation of $302 million this year.  Conversely, the Everglades restoration projects are among the big winners, with a total of $195 million slated to go to ecosystem restoration work in South Florida between the Corps' and the Interior Department's budgets, an increase of nearly $60 million over the FY15 enacted levels.

The troubling trend continues. Investigations would decrease from $122 million to $97 million, but the regulatory program would increase by $5 million to $205 million, to account for increased regulatory oversight that is anticipated if the Waters of the U.S. rule becomes final as planned later this spring.   

The first round of Congressional hearings on the proposed budget is slated for next week, with the House Energy and Water Subcommittee scheduled to meet on Wednesday morning at 10:30, with the Senate E&E subcommittee scheduled for that afternoon.

The FY 16 budget can be viewed here: 

http://cdm16021.contentdm.oclc.org/cdm/ref/collection/p16021coll6/id/42

The FY15 work plans were also released Monday afternoon, although a significant amount of funding remains unallocated.  Those plans can be viewed here:  

http://www.usace.army.mil/Missions/CivilWorks/Budget.aspx

Waters of the United States Rulemaking

The Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee held a marathon bicameral hearing on Wednesday to receive testimony on the impacts of the proposed Waters of the United States rule on state and local governments.  Jointly chaired by EPW Chairman, Senator Jim Inhofe, and T&I Chairman, Rep. Bill Shuster, the hearing’s first panel, EPA Administrator Gina McCarthy and the Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, faced sometimes blistering questions for nearly three hours.  State and local witnesses on the second panel had an easier time for the remaining two hours of the hearing. 

Critics of the rule consistently asserted that opposition to the rule was not simply a clean vs. dirty water issue, but rather that the proposal expands federal jurisdiction, and as Chairman Shuster noted, “wrongly assumes that states and local governments, including Pennsylvania, don't know or don't care about protecting their waters.”  He further pointed out the economic concerns resulting from regulatory overreach, including job losses and costly litigation.  Supporters of the proposal attempted to deflect those points, asserting that the rule would not expand jurisdiction, but would provide clarity.  Significant discussion focused on the rule’s impact on farmers and ranchers, with maps and other visual aids to show competing perspectives. 

The Administration intends to release a final rule sometime this spring.  A rush to various courts around the country is sure to follow if that happens. 

Federal Flood Risk Management Standard Released

Last Friday, despite a prohibition in the FY15 Omnibus Appropriations Act, the Administration released its Federal Flood Risk Management Standard (FFRMS) to establish a new flood elevation standard to be incorporated into all Federal agency and department processes developed to implement EO 11988, Floodplain Management. This far-reaching standard and the proposed implementing guidelines apply to any Federal activity including: “(1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing Federally undertaken, financed or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to, water and related land use resource planning, regulating, and licensing activities.” 

The FFRMS sets forth three alternatives for defining the floodplain, shifting from the 100-year (1% annual chance) base flood elevation (BFE) to (1) the stated preferred approach of applying methods informed by the best available, actionable climate science, (2) BFE plus 2 or 3, depending on whether the action is “critical” or (3) a 500-year flood elevation (0.2% annual chance). 

Accompanying the release of the FFRMS, FEMA published proposed guidelines in the Federal Register soliciting comments on implementing the three alternatives.  In addition, FEMA proposes to hold a series of listening sessions, the dates and locations of which have not been made available yet.  Comments pertaining to implementation are due on April 6, 2015.  Once FEMA’s implementing guidelines are finalized, individual agencies and departments would then be required to update their processes.  The notice is attached for your reference. 
            
Regrettably, the FFRMS was developed without stakeholder input, without a cost-benefit analysis, and without an analysis of whether these alternatives are feasible and implementable. There are numerous other questions relating to compliance with such a standard:  for example, how can local stakeholders who conduct business with more than one federal agency or department comply with the requirements of the FFRMS in a case where the various agencies adopt different alternatives?   We will be developing comments in response to FEMA’s Federal Register notice, and will reach out to our members to gather additional information on the practical implications and impacts of this new onerous requirement.

In the meantime, Senator Cochran and several colleagues sent a letter to the President seeking information on several issues related to the issuance of the FFRMS.  It is attached for your reference.                  

NWC-USACE Partnership Meeting 

Save the date for our next meeting:  Wednesday, May 13, 9:00am to 2:00pm.  Further details and proposed topics for discussion will be forthcoming.   

Register Now for NWC’s 2015 Legislative Summit!!  Details on our website.
 
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