Two Water Resource bills are working their way through Congress, the House’s version H.R.8 (Water Resources Development Act of 2018) and the Senate’s S.2800 (America’s Water Infrastructure Act of 2018). These are abbreviated WRDA18 and AWIA18, respectively. Both bills were introduced and marked up in committee during the week of May 28th. Before we discuss the similarities and differences, let’s touch on what is new and important in each bill. For my analysis, skip to the bottom.
Water Resources Development Act of 2018 (H.R. 8)
Education & Collaboration of Non-Federal Sponsors & the Corps
Section 114 on non-Federal engagement and review requires the Secretary to issue a public notice informing non-Federal stakeholders of the intent to develop implementation guidance and provide an opportunity for stakeholders to engage and provide recommendations on the guidance. In addition, the sense of Congress in Section 113 is to support awareness of the Section 7001 of WRDA14, which allows local stakeholders to suggest projects and policies in the Secretary’s annual Report to Congress on Future Water Resources Development.
Section 115 directs the Corps to develop a comprehensive list of backlogged projects that were authorized but not constructed. Congress provided no direct reason for the inclusion of this section, but it is assumed to at least leave the impression that Congress is concerned about this backlog. Unfortunately, some of the backlog is likely caused by a lack of sufficient funding. WRDA18 also includes Section 301 which will lead to the deauthorization of $3 billion in previously authorized but inactive projects. Section 302, backlog prevention, terminates any inactive project after 10 years unless construction has been initiated, a post-authorization study has been issued, or the authorization has been modified by an Act of Congress.
Under Section 119, the Corps is directed to consider giving credit for a non-Federal interest that has contributed integral work to a project. If a non-Federal sponsor is interested in constructing authorized Federal water resources development projects, under Section 122 they may receive credit or reimbursement from the Corps, and can advance the project delivery timeline by using a streamlined agreement with the Corps. If a non-Federal sponsor is able to advance funds for construction, then the Secretary will have the authority under Section 124 to permit construction using those funds. Section 125 allows non-Federal entities to provide funding to the Corps to expedite the evaluation of permits.
Technical Assistance for regional coalitions of governmental entities has been added in Section 123, extending the Planning Assistance to States Program beyond States and non-Federal interests.
Section 126 directs the Corps to contract the National Academy of Sciences to improve evaluation methodology of the benefit-cost-ratio. There may be no changing the mind of the folks at OMB, but the Corps must rethink its methodology and analysis of economic, environmental and social justifications. This is an issue of benefit-cost-ratio. Sand (sediment) is a commodity, and the price is increasing as supply shrinks – some of the East Coast is already short of sand. This price of sand directly influences the BCR for beach nourishment projects by increasing project cost, thereby reducing benefit-cost-ratios. Every year beaches provide billions of dollars in revenue and taxes, but this means maintaining beaches that will continue to draw the same crowds. Shrinking beaches mean less people, less spending, less revenue, less taxes, decreased real estate value – decreased property taxes, and increased risk of damage.
Opportunities for Improvement & Completion of Projects
Section 102 directs the Corps to identify opportunities for the beneficial use of dredged materials (this is a good one). These opportunities will be implemented under Section 204 of the Corps’ Continuing Authorities Program.
The Corps is looking into the ability for non-Federal interests to carry about feasibility studies for flood risk management, hurricane and storm damage reduction, aquatic ecosystem restoration, and coastal harbor and channel and inland navigation. Section 120 directs the Secretary to evaluate cost-effectiveness and project delivery efficiency of non-Federal interests carrying out such studies.
Section 121 directs the Secretary to submit a report on studies completed by non-Federal interests including a determination of whether the project is feasible, any recommendations for planning or design, and construction requirements. In addition, this section authorizes cooperative review and technical assistance of the Secretary at no cost to the non-Federal interest. The Secretary may also accept and expend funds provided by the non-Federal interest. Note: such funds are not eligible for credit or reimbursement.
Section 203 allows expedited completion of specific feasibility reports (check for your project HERE). If projects are determined to be justified, the project may proceed directly to PED (preconstruction planning, engineering and design). Section 401 authorizes 9 projects (check HERE) under the categories of navigation, flood risk management, hurricane and storm damage reduction, flood risk management and ecosystem restoration, and modifications and other projects.
Storm Damage Reduction
This is a big one – Section 108 is worded in such a way that prevents beaches from receiving adequate repair as a result of damage from wind, wave or water action. The text reads that the beach is authorized to be nourished to pre-storm levels or the ‘design level of protection’. Residents along the coast can already feel the next storm coming, and renourishing a beach to ‘design level of protection’ means effectively whatever the Corps wants – because there is no design level of protection. If this section is to be useful, it should authorize beaches (which are already authorized 50-year storm damage reduction projects) to be renourished up to their design profile, which includes the full amount of sacrificial sand. This is controversial, because Section 108 only returns the beach to the minimum level of protection, which means when the next storm does come the beach is already in need of – you guessed it – more sand (more cost)!
America’s Water Infrastructure Act of 2018 (S. 2800)
Studies and Reports
For coastal related issues, the general sense of Congress in this bill is to think how the Corps process can be improved. To initiate this process, Section 1002 calls for studies conducted by the National Academy of Sciences (NAS) to investigate means by which the Corps can increase transparency in cooperating with Congress, State and local governments, stakeholders and cost-share partners. In addition, Section 1003, a welcomed counterpart of H.R. 8 - Section 125, authorizes a study on BCR reform by the Government Accountability Office (GAO). This section requires a study on which benefits and costs the Secretary and the Director of Office of Management and Budget (OMB) include and omit from economic analyses. The analyses are required to include, at a minimum, local and regional benefits. The GAO will also conduct a similar report for navigation benefits in harbors. The reports will describe results and make recommendations for improving BCR analyses.
Section 1011 expands the Federal cost liability for a feasibility report from 50% to 50-100% if there is a significant risk for storm damage (as determined by the Secretary), if the area has been damaged in the past 8 years since enactment of S. 2800, or if the area has received assistance under the Stafford Act or emergency response under section 5 of the Flood Control Act of 1941. For first time projects, construction generally is cost-shared 65% Federal 35% non-Federal. Whereas periodic nourishment is cost-shared 50/50.
Under Section 1020, non-Federal interests have the ability to initiate feasibility studies and receive technical assistance from the Corps. Under this provision, all Corps assistance will occur at full Federal expense, if the study determines the project is feasible and is authorized for construction, by crediting the cost of developing the study towards construction. The Secretary shall issue guidelines and sufficient information for the formulation of such studies.
Congress has decided to authorize late penalties – don’t you wish there was one this year for the Work Plan? Under Section 1021, any report or study that is not submitted to Congress 180 days after the required date will reprogram $5,000 out of the General Expenses account (Civil Works) and into the account of the division of the Secretary with responsibility for completing that report.
The Great Lakes Coastal Resiliency Study is an example of multijurisdictional collaboration among 8 States. This is an exemplary display of common interests and cooperation, with involvement from local stakeholders all the way up to the Federal government, the Corps, engineers and scientists. To push this project along, Section 3606 has been included in S. 2800, which directs the Secretary to conduct an assessment of water resource needs in the Great Lakes and identify study priorities such as water level fluctuations, erosion, flooding, runoff, aging infrastructure and economic and recreational issues.
Corps Process and Budgeting
Section 1005 allows the non-Federal sponsor to be credited or reimbursed for both financial expenses and in-kind services. Such credits may be used for operation and maintenance or the credits may be applied to another project. At the request of the non-Federal sponsor, the funds can be directly reimbursed. When working with a non-Federal sponsor, under Section 1009, the Secretary must ensure the terms of the agreement in regard to operation and maintenance, repair, replacement and rehabilitation costs are clearly stated.
In order to improve awareness of Corps programs and laws, Section 1014 states that any law under the jurisdiction of the Secretary must be accompanied by implementation guidance no more than 120 days after the date of enactment. Section 1015 requires that implementation guidance for S.2800 will be made available no later than 1 year after the date of enactment.
Corps capabilities are addressed in Section 1017 by authorizing a study by the Secretary to evaluate the Corps’ ability to undertake additional project scope and investigations. The authority of Section 1027 extends the expedited consideration of water resources projects from December 31, 2018 to December 31, 2024. This allows the House and Senate to engage in an expedited considerations procedure for water resources development outside of the typical 2 year WRDA authorization cycles. Section 2109 amends projects under WRRDA14 section 6003(a) (backlog prevention) to be deauthorized after 10 years, instead of 7, and also extends the completion of a project feasibility study from 7 to 10 years. Following on the heels of 2109, Section 2110 deauthorizes $7 billion in unviable feasibility studies for projects that lack local support or funding, or an authorizing purpose that is no longer relevant. In addition, Section 2204 prevents the deauthorization of projects if the Secretary receives a written request from the project sponsor within 90 days of the enactment of AWIA18.
The New York-New Jersey Harbor and Tributaries feasibility study is required to be completed within 90 days of the enactment of AWIA18 under Section 2318. The New Jersey and Delaware Back Bays Coastal Storm Risk Management feasibility reports are also required to be finished 6 years after enactment of AWIA18, rather than the standard 3 years. Finally, Section 3118 gives priority funding and requests expedited completion of feasibility studies for certain projects listed in Section 1322(b)(2) of WIIN 2016. This authorization also allows such projects to initiate PED immediately after the general evaluation report is submitted to Major Subordinate Command for approval.
Under Section 3602 a sponsor may provide advance materials for emergency repair that the Corps to use and manage, without reimbursement or credit. Section 3603 is another sense of Congress that the Secretary should provide technical assistance to State and local flood plain managers to develop floodplain management handbooks.
Under Section 1023, conducting feasibility must consider the use of nature-based features for natural infrastructure alternatives. Unfortunately, Corps regulations do not favor implementation of these features. Section 1025 authorizes $50 million for FY20 and FY21 for implementation of pilot programs to determine the cost-effectiveness and project delivery efficiency of allowing non-Federal interests to carry out feasibility studies. These programs will determine if there is interest in non-Federal interests carrying out feasibility studies.
A sense of Congress in Section 1035 states that the infrastructure built by the Corps should be able to withstand extreme weather, mitigate flooding and other negative impacts on communities and provide a significant return on investment by encouraging the use of resilient structural or nonstructural techniques. Structures, particularly in Miami, are built to rigorous wind codes (~185 mph - ASCE 7). It is time for other communities to strengthen (or establish) similar regulations elsewhere along the coast in regard to wave and water action. Infrastructure that failed during Katrina was intended to withstand a 100 year storm. In Holland, infrastructure is built to withstand a 10,000 year storm. Katrina, a 100 year storm happened in 2005, then another (Sandy) in 2012, then only 5 years later Texas was hit with a 1,000 year storm. It’s time the Corps rethink its metrics for evaluating storm frequency. I sincerely hope this section is strengthened with meaningful numbers in the next WRDA. Section 1036 makes it easier for existing authorized local flood protection works projects to implement design and project alterations under 33 C.F.R 208.10 (Guidance on O&M of flood protection infrastructure).
Section 2001 will authorize 9 new feasibility studies that were submitted for consideration pursuant to section 7001 of WRRDA14.
Section 3002 is only a sense of Congress, but it comes out of the department of good intentions. This section states that the Continuing Authorities Program (CAP) should receive full appropriations each year. This section could be included in Corps Budgeting and Process, above.
Section 3115 is a sense of Congress to prioritize the annual dredging of Wilmington Harbor, Delaware. Annual dredge projects produce a substantial amount of sediment. As of today, regional sediment management plans are not yet in effect. There is a need to make better use of sediment. The current protocol is ‘least-cost’ disposal…usually offshore, while there are locations all across America that are in dire need of sand. The entire Northeast coast is currently sediment starved (and our beaches show it when they aren’t renoushrished). Section 3121 directs the Secretary to develop a report on debris removal within navigation channels subject to the conditions of 33 U.S.C. 603a.
Sections 3604 and 3605 all focus on the EPA program for the Great Lakes and authorize increased appropriations to restore the Great Lakes and improve resiliency.
Section 3607 contains a special rule for beach nourishment that extends project authorization for 6 years after the enactment of S. 2800 for projects whose 50-year authorizations are expiring. Section 3608 provides a similar extension that allows expired coastal storm reduction programs to remain eligible for an additional 6 years.
In general, both WRDA18 and AWIA18 have focuses on Corps projects and the Corps process. In addition, both bills have provisions relating to the development of implementation guidance, backlog prevention, credit towards non-Federal interests for advanced funds, materials or in-kind services, technical and planning assistance, benefit-cost-ratio, a study by the NAS on how to improve the Corps, the ability for non-Federal sponsors to carry out feasibility studies, and numerous senses of Congress to expedite the Corps process. It is important for the Corps to strip away road-blocks (funding, permitting, policy) and advance projects further, faster and with greater efficiency. Much of this is expressed in the Senate bill through the many ‘Sense’ of Congress provisions. The Corps process is in need of reform to eliminate process from getting in the way of results, beginning at the Corps District level. Collaboration has been a strong force of change for the Corps, and the ability to produce big results from collaboration is deeply embedded in the Great Lakes Coastal Resiliency Study (GLCRS), mentioned above. This collaboration is multijurisdictional, multistate, with coordination from academia, scientists, the Corps, States, local governments and other Federal agencies. The Senate bill provides strong support for the GLCRS whereas the House bill does not.
This year’s WRDA includes provisions to expedite studies to move projects faster along their timeline. This is much needed, but it is important for non-Federal sponsors to understand that to do this, the Corps will strategically omit some detailed analyses during studies, which poses greater legal risks to the proposed project in the long run. In short, expediting in this context does not mean do everything and all things faster. There is an effort to increase education on Corps process and programs by issuing implementation guidance within 120 days following the enactment of S. 2800, for any provision which implementation guidance has not been issued.
There are efforts in both bills to improve the operation of the Corps through the ‘Study of the Future of the United States Army Corps of Engineers’ and the additional NAS and GAO studies. The study of the Future of the United States Army Corps of Engineers hopefully will reveal how the Corps may improve project delivery speed, project cost and material use efficiency, and innovative financing options. In addition, the NAS will study whether the Corps would be better positioned under another department or agency within the Federal government, rather than the Department of Defense. The House bill develops what appears to be a backlog prevention system to deauthorize projects that lack local support, funding or Federal support. Similarly, the Senate bill introduces similar means to deauthorize idle projects. In combination, deauthorizations will total $10 billion worth of project funding.
Each bill includes measures to ensure that non-Federal sponsors are credited or reimbursed for unrequired financial expenditure, materials or in-kind services delivered to a project. A final version of the bill may include the option to give priority to projects where the sponsor has provided advance materials and funding. This is not intended to provide better relief for wealthy communities that may be able to rapidly purchase and provide materials, but that may be a negative externality.
Each bill also directs the Corps to provide technical assistance to non-Federal sponsors for the development of floodplain management handbooks and to provide technical assistance to regional coalitions for the development of plans for water resources projects. The latter is essentially Planning Assistance to States (PAS), which is widely underused by the States. As non-Federal sponsors take on a greater role in the development of water resources studies and projects, this will be critical to ensure projects completed both effectively and on-time.
The economic justification of projects (BCR) and Corps process for budgeting are under scrutiny in both bills and will hopefully be improved. If so, the change will affect the use of sediment from channel maintenance and relates to the implementation of regional sediment management. The House version gives the opportunity to for the Secretary to identify projects for beneficial use of sediment, while the Senate version expands the authority of Section 204, beneficial use, to develop Regional Sediment Management plans to the Bureau of Reclamation. These two provisions should be combined to provide regional sediment management plans for both inland harbors and coasts which provide: (1) a regional inventory of sediment supply, (2) a sediment budget to be used to allocate sediment to specific projects or regions, and (3) future projections of sand supply and use. Section 204 of the Corps’ Continuing Authorities program is a great opportunity for local governments to take advantage of built up sediment in channels, harbors, and shoals and use it for beach projects and wetland restoration. Like many of the Corps’ Continuing Authorities Programs, Section 204 is also widely underused…though if the 204 authority is expanded so it can be used by the Bureau of Reclamation, there may be significantly more projects wishing to receive funds from the $1,500,000 that was appropriated to Beneficial Use in FY19. The Senate bill also urges the Corps’ Continuing Authorities Programs receive full appropriations every year, which States and local governments should also take full advantage of.
AWIA18 contains provisions involving the EPA that are not found in H.R. 8.. Title V in the Senate bill contains these provisions, some of which are, Water Infrastructure Resiliency and Sustainability, WIFIA Reauthorizations, the Safe Drinking Water Act & Clean Water Act State Revolving Funds, and the EPA’s WaterSense program.
The Senate bill authorizes a ‘late penalty’ of $5,000 for Corps reports and studies that are not on time, reprogrammed out of the Headquarters General Expenses account and into the account of the Division of the Secretary, providing the Secretary with the direct responsibility for completion. An additional $5,000 may be reprogrammed for each additional week after the due date that a report is not completed.
Back to the Section 108 issue (which is only brought up in the House bill), there needs to be an understanding that rebuilding with no improvement is a terrible investment. This is contrary what the National Flood Insurance Program is seeking to remedy – insuring regions that experience repetitive losses from the same forces of wind, rain and water. Rebuilding a beach, without consideration for how it will handle the next weather event, and without consideration of the financial implications of further disrepair and rehabilitation, does not make fiscal sense. It is hoped that the Senate has some interest in fixing this, to allow beach nourishment to the design profile, synchronized with periodic renourishment, to save in costs for storm damage repair and rehabilitation of dunes and berms.
Both bills show that Congress is beginning to understand how to develop policy that maximizes the effectiveness of the Corps, and encourages collaboration from all parties. Members of Congress, the President, and Federal agencies have expressed interest in improving the nations water infrastructure, however, this task is not possible without significant Federal investment. Appropriations bills are currently being deliberated by Congress. Stay tuned for updates on how funding plays into the function and process of the Corps in the coming fiscal year.
In addition, WRDA will likely be on the floor sometime after July 4th. On Monday, the Senate is scheduled to pass a minibus including the Corps in Energy and Water Appropriations.