Senate Passes WRDA – Attention Shifts Now to the House

$10.6 billion in authorizations for drinking water, wastewater, the Great Lakes, and Corps of Engineers projects was the final figure in S 2846, the Water Resources Development Act (WRDA), which was passed by the Senate (95-3) on September 15th.
In an unusual move, the measure includes drinking water funding and makes some significant revisions to the DWSRF protocols as well as new funding to address the Flint, MI lead crisis.  Approximately $200 million of the bill’s total is directed toward these areas.  Traditionally, WRDA focuses on Corps of Engineers projects ranging from watersheds restoration and waterways projects to flood control.  Senate Environment & Public Works Committee Chair Inhofe (R-OK) and Ranking Minority Member Boxer (D-CA) issued a joint statement that said, in part, “This bill also provides critical support and reforms to help small and disadvantaged communities improve access to clean and safe drinking water and to repair aging infrastructure that contributes to lead contamination nationwide.  A critical component of the bill is that we specifically addressed the long-standing lead contamination in Flint.”
Now, attention turns to the House where the Transportation & Infrastructure Committee passed a more traditional WRDA bill (HR 5303) in late May that is awaiting Floor Action – which will likely come next week.  That measure did not include any drinking water provisions or speak to lead contamination issues.  The questions are:  will the House pass its own WRDA and try to find a way to address the drinking water provisions in Conference or will the House Energy & Commerce Committee (which has jurisdiction over drinking water) want to weigh in on the drinking water provisions before a vote occurs in the House?
The Senate bill has numerous provisions related to drinking water.  Title VII of the bill deals specifically with drinking water issues.  You may want to download the bill’s language directly from Congress.gov at https://www.congress.gov/bill/114th-congress/senate-bill/2848/text.  Below are some of the highlights:
SUBTITLE A
Drinking Water State Revolving Loan Fund (DWSRF)

• A new definition for the term “restructuring.” That now means “…changes in operations (including ownership, cooperative partnerships, asset management, consolidation, and alternative water supplies.”
• A requirement that intended use plans give greater weight to applications that include: an inventory of assets, an asset replacement schedule, a financing plan that factors in lifecycle costs, and a review of restructuring options; a demonstration of consistency with state and municipal watershed plans; a water conservation plan; and approaches to improve the sustainability of the system.
• The state 4% setaside has been modified to include options for each fiscal year – “…an amount that does not exceed the sum of the amount of any fees collected by the State for use in covering reasonable costs of administration of programs under this section, regardless of the source, and an amount equal to the greatest of $400,000, 1/5 percent of the current valuation of the fund, or 4 percent of all grant awards…”
• Eliminates the dollar-for-dollar match for 10% state program setaside use.

Assistance for Disadvantaged Communities
The bill creates a new section in the SDWA that deals specifically with assistance for small and disadvantaged communities.  This section (1459A) defines underserved or disadvantaged communities; creates a grant program to assist public water systems in meeting SDWA requirements; calls for a non-Federal cost share of any project costs to be not less than 45% of the total (may be waived); provides land easements, rights of way, etc., and pays 100% of any O&M, repair, replacement, and rehabilitation costs.  $230 million is authorized for FY 17 and $300 million for each subsequent fiscal year through 2021 to support these initiatives.  In addition. The Treasury shall transfer $20million in “funds not otherwise appropriated” to EPA for the grant program.
Lead in Drinking Water
Another new section (1459B) addresses lead issues and begin with a “lead reduction project” that can; replace publicly owned lead service lines; cover testing, planning or other relevant activities to identify and address underlying conditions that contribute to increased lead levels in water; provide assistance to low-income homeowners for replacement of pipes, fittings, or fixtures that contain lead; and offer consumer education on lead exposure reduction.  This effort specifically excludes partial lead service line replacement.  The section creates a grant program for these lead reduction projects and authorizes $60 million for FYs 17-21.  As above, an additional $20 million will be made available from the Treasury.
Notice to Persons Served; Electronic Data Reporting; Lead Testing in Schools & Daycares; & WaterSense

• 1414(c) is amended to require public notice for any exceedance of a lead action level and ensure that all public notice regulations include such requirements. New timing, monitoring, and form for such notice is specifically defined. Within 120 days, EPA, in collaboration with states and water system owners/operators shall establish a strategic plan for targeted outreach, education, technical assistance, and risk communication.

• 1414 is amended by adding new language regarding electronic reporting of compliance monitoring data.

• 1464 is amended to include a voluntary school and child care lead testing grant program. EPA may make grants to local educational agencies. Grant recipients are required to expend grant funds in accordance with EPA’s 3Ts guidance and state lead reduction regulations or guidance; make any testing results publicly available, and notify parent, teacher, and employee organizations of the availability of the results.  $20 million is authorized for this effort from FY 17 through FY 21.

Additional Provisions
Creates a Part G of the SDWA to cover additional provisions, including:

• Establish “…a voluntary WaterSense program to identify and promote water-efficient products, buildings, landscapes, facilities, processes, and services…” EPA, in coordination with DOE, shall create a WaterSense label and develop procedures and performance criteria for WaterSense certified products.
• Findings related to drinking water infrastructure needs; a “Sense of the Senate” that providing rural communities with knowledge and resources necessary to fully use alternative drinking water systems…can provide safe and affordable drinking water…”
• Calls for EPA and USDA to update existing technical assistance programs to include information on cost-effective, innovative, and alternative drinking water delivery systems.
• Amends §1452(q) to update availability through FY 21 for small system technical assistance.
• Amends §1452(a) to include requirements for use of American materials (iron and steel).

SUBTITLE C:  The bill also includes a separate subtitle directed to innovative financing projects.  This subtitle:

• Eliminates the “pilot status” of WIFIA.
• Creates a Water Infrastructure Investment Trust Fund in the Treasury Department from which 50% of the fund amounts shall be available, respectively, for capitalization grants to the DWSRF and CWSRF.
• Creates a Water Technology Grant program to “accelerate the development of innovative water technologies that address pressing water challenges.” Authorizes $50 million “for each fiscal year.”
• Amends the Water Resources Research Act to authorize $7.5 million for FYs 17-21 to support additional research to increase effectiveness and efficiency of new and existing treatment works though alternative approaches.
• Reauthorizes the Water Desalination Act.
• Establishes national drought resilience guidelines to include consultation, data gathering and analysis, and recommendations for Federal, state, and local government as well as water utilities to consider.
• Amends SDWA §1452 to include innovative water technologies as eligible for DWSRF loans and allow additional subsidization for such loans.

SUBTITLE D:  This subtitle focuses on drinking water disaster relief and infrastructure investments related to lead contamination.
Considers lead or other contamination as a disaster and defines “eligible state” as one “…for which the President has declared an emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act relating to the public health threats associated with the presence of lead or other contaminants in a public drinking water supply system.”  Provides states the ability to offer assistance to eligible systems to address lead or other contaminants in drinking water, including repair and replacement of public and private drinking water infrastructure.  EPA may use up to $100 million to provide additional grants to states through the DWSRF for 18 months.  Separately, EPA may make loans via WIFIA to eligible systems for up to 80% of project costs.  The subtitle also creates a childhood lead poisoning prevention program.