This is an update to the September 23 article, Senate Opens the Tap on Water Infrastructure Spending and Creates New Coal Ash Permit Program.

On Wednesday, September 28, the House passed the Water Resources Development Act with a vote of 399-25, H.R. 5303. The Senate voted 95-3 in favor of its own version of the bill, S. 2848, on September 15. The headline feature of both bills is funding for cities dealing with lead emergencies like the one that affected Flint, Michigan, but both also contain provisions that are important to businesses in sectors including construction, transportation, and electric utilities. Though each chamber has now passed a version of the bill, important differences between the two will need to be resolved before being signed by the President.

The Water Resources Development Act (WRDA) is a reauthorization bill for the U.S. Army Corps of Engineers that Congress aims to pass every two years. The last WRDA bill was passed in 2014. The current Senate measure is seen as the last bipartisan effort of Senators Boxer (D-CA) and Inhofe (R-OK)—the Ranking Member and Chair, respectively, of the Senate Environment and Public Works Committee—before Senator Boxer retires at the end of this term.

The Senate version of WRDA authorizes nearly $10.6 billion in funds for a range of water infrastructure projects across the country.^[1] Though the House bill is much smaller—around $5 billion—both versions include authorization for a number of Army Corps of Engineers projects including improvements to harbors, river channels, locks, and flood control infrastructure. Additionally, the Senate bill also authorizes the creation of a new FEMA grant program to help states assess and plan for rehabilitation of nonfederal dams.^[2]

Both bills also include authorization and funding for states and local governments responding to lead contamination in drinking water infrastructure. However, while the Senate authorized $220 million, the House only approved $170 million. The Senate bill would also authorize over $3 billion to be appropriated for state and local drinking water and sewer projects through grants and revolving loan programs.^[3] Finally, the Senate bill authorizes spending for a number of regional projects including Everglades restoration, the Great Lakes Restoration Initiative, and the Lake Tahoe Restoration Act.^[4]

The Senate version of WRDA also contains important coal ash provisions left out of the House bill. Specifically, the Senate version would expand federal and state environmental agencies’ enforcement authority with respect to coal combustion residuals (CCR or coal ash).^[5] In particular, the provisions encourage states to establish permit programs for coal ash ponds and give EPA direct authority to enforce the CCR Rule,^[6] which became effective October 19, 2015. The Senate bill would allow state permit programs to include different technical standards from the federal standards, but requires that they be at least as protective as the federal rules. It also provides that if a state decides not to establish a permit program, or if EPA disapproves of a state’s program, the state will be deemed a “non-participating state.” EPA may create its own permit program for each non-participating state. The provisions of the CCR Rule, however, would remain self-implementing in states without either a state or a federal permit program.

Over the course of the next few weeks, while Congress remains in recess, staff for the Senate Environment and Public Works Committee and House Transportation and Infrastructure Committee will begin negotiations on the differing versions of the WRDA bill. When Congress returns in November for a lame duck session, a conference report could be one of the few pieces of legislation that the leadership will bring before both chambers. With the funding to address the Flint water quality issue in the traditional authorization bill, there will be a push to pass a WRDA bill before the adjournment of the 114th Congress. Whether the coal ash provisions remain part of the final conference report remains to be seen.

Please follow the Energy and Environmental Law Advisor for updates, or contact a member of Schiff Hardin’s Energy or Environmental Groups with any questions about the Water Resources Development Act of 2016.

_{[1] Congressional Budget Office estimate for 10-year period beginning in 2017. Congressional Budget Office, Cost Estimate, S. 2848, Water Resources Development Act of 2016, at 1 (June 17, 2016).}

_{[2] § 7304.}

_{[3] §§ 7201(f), 7202, 7106(i).}

_{[4] CBO Estimate at 3-4.}

_{[5] § 8001.}

_{[6] Disposal of Coal Combustion Residuals from Electric Utilities, 80 Fed. Reg. 21302 (Apr. 17, 2015).}