Congress Prioritizes Water Resources Legislation in Lame Duck


Since returning to Washington in November following the 2022 midterm election, Congress has been focused on wrapping up its legislative to do list prior to the end of the year, and of the 117th Congress.  While priorities such as an omnibus appropriations bill for the 2023 fiscal year remain under discussion, Congress has used its lame-duck session to pass critical legislation on water resources infrastructure, flood mitigation, and climate resilience.  The passage of these bills represent significant wins for ASCE, and will have significant long term benefits for the civil engineering community.

Final Agreement Reached on WRDA

On December 6th, the Senate Committee on Environment & Public Works (EPW) and House Committee on Transportation & Infrastructure (T&I) announced a bipartisan agreement on the Water Resources Development Act of 2022.  After passing their respective bills over the summer, and engaging in discussions to resolve differences between the bills throughout the fall, committee leaders announced that their agreement would be included in the James M. Inhofe National Defense Authorization Act (NDAA) for Fiscal Year 2023.  Inclusion in NDAA, the annual legislation which sets budgetary authorities for the Department of Defense and Armed Services, showed a commitment by both Democrats and Republicans to wrap up WRDA for 2022 by including it in what is called a “must-pass” bill.

The WRDA agreement authorizes 25 new water resources projects for the U.S. Army Corps of Engineers, including the construction of a storm protection barrier along the Texas Gulf Coast known as the “Coastal Spine”, which will receive $21.4 billion in Federal funds.   The bill also contains several policy provisions to enhance infrastructure resilience, protect public safety, and support inland waterways projects.  ASCE was actively involved in discussions with members of both the House T&I and Senate EPW Committees, advocating for a number of priorities for WRDA throughout 2022.  Several of those priorities were ultimately included in the final agreement.

This year, WRDA includes provisions supporting the safety of the nation’s dams and levees.  One of ASCE’s top priorities this year was reauthorization of the National Levee Safety Program, which was set to expire at the end of FY 2023.  Reauthorization of this program is critical to ensuring that the Corps can continue to support states in standing up state levee safety programs, implementing national levee safety guidelines, and supporting levee monitoring and rehabilitation efforts.  WRDA reauthorizes the National Levee Safety Program through FY 2028.  ASCE also supported the establishment of a National Low Head Dam Inventory, which was included in both the House and Senate versions of WRDA.  Low head dams are manmade, river spanning structures which produce dangerous currents and pose a hazard to public safety.  By identifying and cataloguing these structures through the establishment of the Low Head Dam Inventory, dam safety officials will now be able to further strengthen public safety and prevent loss of life.

A top ASCE dam safety priority which was ultimately not included in WRDA this year, was the reauthorization of the National Dam Safety Program.  The National Dam Safety Program, which is set to expire at the end of FY 2023, provides grants to state dam safety programs to provide technical assistance, support dam monitoring and inspection, and assist with staffing needs.  While WRDA has traditionally served as a vehicle for changes to the National Dam Safety Program, neither the House nor Senate took action to reauthorize the program in either of its versions of WRDA.  Last year, the Bipartisan Infrastructure Law provided more than $200 million for National Dam Safety Program activities and failing to reauthorize the program in the coming year could jeopardize that momentum, making reauthorization a top priority for ASCE in the next Congress.

Finally, this year’s WRDA bill did include a provision making the current cost share formula for the Inland Waterways Trust Fund (IWTF) permanent.  Currently, 65 percent of the cost for federal inland waterway projects are covered by general appropriations, with the remaining 35 percent covered by the IWTF.  This formula was set to expire at the end of the decade.  The current cost share formula, for which ASCE advocated in 2020, was adjusted in the previous WRDA from a 50-50 split.  Initially, ASCE strongly supported language in the Senate’s version of WRDA which adjusted the cost share to a 75%-25% split, which ASCE recommends in the Inland Waterways chapter of the 2021 Report Card for America’s Infrastructure.  To address overall costs in the bill, however, negotiators settled on language to make the current formula permanent.  Regardless of the change, ASCE still views this as a step in the right direction which will provide greater certainty for inland waterway projects for years to come and will be helpful in addressing the IWTF construction backlog.

The House passed NDAA with the bipartisan WRDA agreement on December 8, 2022 by a vote of 350-80.  It was passed in the Senate this Thursday by a vote of 83-11.  It is now headed to President Biden’s desk for signature.  Last week, ASCE sent a letter to Congressional leadership supporting the agreement and encouraged swift passage.

FLOODS Act Passes in the House

On Wednesday, December 14th, the House passed S. 558, the Flood Level Observation, Operations, and Decision Support (FLOODS) Act.  This legislation will require new measures be implemented by the National Oceanic and Atmospheric Administration (NOAA) to mitigate the effects of flooding, and weather events such as tornados and hurricanes.  For example, the FLOODS Act requires NOAA to establish a National Integrated Flood Information System to provide timely information and data to allow communities to better predict flooding events and implement flood mitigation policies and practices.

The FLOODS Act will also establish a “NOAA Precipitation Frequency Atlas of the United States” to compile and analyze data on precipitation frequency nationwide.  This will allow for greater public understanding of rain patterns and fluctuating precipitation levels. The bill will also assist public officials in implementing flood and climate mitigation practices and will help inform civil engineers in designing critical infrastructure to withstand increased risks posed by flooding and increased precipitation levels.  The FLOODS Act was introduced in the Senate by Senator Roger Wicker (R-MS), with companion legislation led by Representative Mikie Sherrill (D-NJ) in the House.  The Senate passed by the FLOODS Act in September of 2021, and with House passage it now awaits President Biden’s expected signature.

PRECIP Act Approaches the Finish Line

Finally, on December 14th, it was announced that the Providing Research and Estimates of Changes in Precipitation (PRECIP) Act would not only be coming to the House floor for final consideration, but it would also be used as the legislative vehicle to extend Federal government funding for an additional week.  The PRECIP Act, a top legislative priority for ASCE, will require NOAA to make significant changes to the way in which it collects data on maximum precipitation levels and precipitation frequency.  Under the PRECIP Act, NOAA would be required to work with the National Academies to produce a study on the current state of precipitation estimation practices, and an examination of best practices for estimating precipitation measurements.  NOAA will then be required to update estimates of probable maximum precipitation within six years of release of the National Academies study, and every ten years thereafter.  This legislation is essential to the civil engineering community. It will ensure that more accurate data on rainfall levels, which fluctuate greatly due to climate change, is available and can be incorporated into the design of critical infrastructure.  This will help to enhance overall resilience of infrastructure systems to the increasingly harsh effects of climate change.

The PRECIP Act has gone through a long process throughout the 117th Congress on its route to final passage and enactment.  After being introduced in the House in February of 2021, it was marked up by the House Science, Space, and Technology Committee last November.  That version was passed by the House on May 11, 2022- the same day the Senate marked up its version of the PRECIP Act, removing authorized funding levels that had been included in the House bill.  The Senate’s version passed by unanimous consent on November 17, 2022.  This week, the PRECIP Act- as amended and passed by the Senate- was used as a vehicle to extend Federal Government appropriations through December 23rd.  The House passed the package on Wednesday by a vote of 224-201 and is expected to clear the Senate late Thursday night.  President Biden will sign the package on Friday.

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