Water Resources Development Act of 2018 (H.R. 8) and America’s Water Infrastructure Act of 2018 (Amendment to H.R. 8): An Overview
Released: 2018-10-02T00:00:00

Introduction

Omnibus Water Authorization Deliberations in the 115th Congress

The 115 th Congress initiated deliberations on an omnibus water authorization bill with H.R. 8 , the Water Resources Development Act of 2018 (WRDA 2018), and S. 2800 , America's Water Infrastructure Act of 2018 (AWIA 2018). On June 6, 2018, the House passed H.R. 8 , which was subsequently received in the Senate and referred to the Senate Committee on Environment and Public Works (Senate EPW). On July 9, 2018, the Senate EPW posted on its website an amendment in the nature of a substitute to H.R. 8 , titled America's Water Infrastructure Act of 2018. This CRS report discusses H.R. 8 as passed by the House (referred to herein as WRDA 2018) and the Senate EPW-posted amendment in the nature of a substitute to H.R. 8 of July 9, 2018 (referred to herein as AWIA 2018). The Senate did not take up H.R. 8 or S. 2800 . Instead, House and Senate committee leadership agreed on new legislative text for an omnibus water authorization bill. On September 13, 2018, the House amended an unrelated courthouse-naming bill, passed by the Senate as S. 3021 , to include the negotiated text. The negotiated text contained provisions from various pieces of legislation, most prominently H.R. 8 , S. 2800 , and H.R. 3387 (Drinking Water Systems Improvement Act of 2017). Like S. 2800 , the House-passed S. 3021 is titled America's Water Infrastructure Act of 2018.

Because S. 3021 was sent to the Senate in the form of a House amendment, the Senate can begin consideration of the text more quickly than it could if it were sent in the form of a House bill. If the Senate agrees to the House amendments to the bill without proposing any further changes, the bill will be sent to the President for his signature. Otherwise, the two chambers can attempt to resolve their differences over the text of S. 3021 prior to the adjournment of the 115 th Congress. This could be through a further exchange of amendments between the chambers or through the creation of a conference committee. For information on S. 3021 , see CRS Report R45185, Army Corps of Engineers: Water Resource Authorization and Project Delivery Processes , by [author name scrubbed], and CRS Report R45304, Drinking Water State Revolving Fund (DWSRF): Overview, Issues, and Legislation , by [author name scrubbed].

Enactment of S. 3021 likely would mean that the 115 th Congress would not take further action on H.R. 8 or on the Senate EPW-posted amendment to H.R. 8 , the two legislative texts discussed in this report. For reference, Table 1 provides information on the title and status of the various legislative texts for omnibus water authorization in the 115 th Congress, as of October 2, 2018.

Introduction to H.R. 8 and Senate EPW-Posted Amendment to H.R. 8 Amendment and Scope of Report

This CRS report reflects deliberations and effects of H.R. 8 as it was passed by the House (referred to herein as WRDA 2018) on June 11, 2018, and the amendment in the nature of a substitute to H.R. 8 as it was posted by the Senate EPW on July 9, 2018 (referred to herein as AWIA 2018). Subsequent legislative actions on omnibus water resource legislation (e.g., House-passed amendments to S. 3021 ) generally are not reflected in this report. Deliberations on WRDA 2018 and AWIA 2018 included discussions of the scope of water issues to be addressed and how the legislation would influence federal and nonfederal investments in water infrastructure. In addition, there was some interest in altering how the U.S. Army Corps of Engineers (USACE) was structured and in modifying its operations and delivery of water resource projects. In the Senate, deliberations also focused on a range of drinking water and water quality issues facing communities and rural areas. Issues included infrastructure needs and the federal role and options for funding projects, communities' ability to comply with water quality regulatory requirements and options for compliance flexibility and affordability, infrastructure resiliency, and technology innovation, among others.

In the tradition of previous legislation with the Water Resources Development Act (WRDA) title, WRDA 2018 focused primarily on authorizing water resource projects and activities of the U.S. Army Corps of Engineers (USACE) and dam and levee safety programs. AWIA 2018 included not only provisions related to USACE, but also provisions involving water quality and drinking water programs administered by the U.S. Environmental Protection Agency (EPA), particularly in Title V of AWIA 2018 ("EPA-Related Provisions"). In addition, AWIA 2018 included a few other provisions that relate primarily to tribal water-related programs and authorities, and certain Department of the Interior (DOI) activities and programs.

This report provides an overview of WRDA 2018 ( H.R. 8 as passed by the House) and AWIA 2018 (the amendment in the nature of a substitute to H.R. 8 posted by the Senate EPW on July 9, 2018) and topics shaping deliberations. After a brief background, the report presents a broad overview of WRDA 2018 and AWIA 2018. The subsequent section describes the context for the USACE provisions of WRDA 2018 and AWIA 2018. The final section describes EPA-related provisions.

Water Authorization Bills in Previous Congresses

Congress generally authorizes USACE water resource activities in authorization legislation prior to funding the activities through appropriations legislation. USACE's ability to act on an authorization often is determined by funding. Congress generally authorizes numerous new USACE site-specific activities and provides policy direction in an omnibus USACE authorization bill, typically a WRDA. A few provisions in WRDA bills have time-limited authorizations; therefore, some WRDA provisions may reauthorize expired or expiring authorities.

Beginning with WRDA 1986 ( P.L. 99-662 ), Congress loosely followed a biennial WRDA cycle for several years. WRDAs were enacted in 1988 ( P.L. 100-676 ), 1990 ( P.L. 101-640 ), 1992 ( P.L. 102-580 ), 1996 ( P.L. 104-303 ), 1999 ( P.L. 106-53 ), 2000 ( P.L. 106-541 ), and 2007 ( P.L. 110-114 ). The Water Resources Reform and Development Act of 2014 (WRRDA 2014; P.L. 113-121 ) was enacted in June 2014.

The most recently enacted water authorization legislation was the Water Infrastructure Improvements for the Nation Act (WIIN; P.L. 114-322 ); it was enacted in December 2016. WIIN included titles on water-related programs and projects spanning various agencies and departments. Title I of the bill—which had a short title of WRDA 2016—focused specifically on USACE water resource authorizations. Titles II, III, and IV focused primarily on other agencies; many of the specific provisions in these titles had little or no relationship to USACE.

Overview of WRDA 2018 (H.R. 8) and AWIA 2018 (Amendment to H.R. 8)

Both WRDA 2018 and AWIA 2018 included numerous provisions that address USACE-related activities. For example, both WRDA 2018 and AWIA 2018 would have authorized USACE to conduct new studies and construct new projects, and both WRDA 2018 and AWIA 2018 would have modified existing authorizations. For example, USACE and the Federal Emergency Management Agency (FEMA) have certain responsibilities related to national programs for dam and levee safety. Both WRDA 2018 and AWIA 2018 would have extended beyond FY2019 the authorization of appropriations for a federal levee safety initiative and a national dam safety program; WRDA 2018 would have extended the authorizations of appropriations through FY2023, and AWIA 2018 would have extended them through FY2021.

Table 2 provides a summary of the organization of WRDA 2018 and AWIA 2018 and their status. A broad difference between the two was their scope. WRDA 2018 focused on USACE water resource projects and programs and dam and levee safety program authorities; although the majority of AWIA 2018's titles and provisions also related to the USACE's water resource projects, numerous provisions of AWIA 2018 were not directly related to USACE water resource activities. AWIA 2018 included provisions addressing a range of other topics, including EPA administered water programs and regulatory authorities, and water-related activities and other authorities of the Department of the Interior and other agencies. For example, the following DOI-related provisions were in AWIA 2018:

Section 1046 related to the processing of take permits by DOI's Fish and Wildlife Service for bald and golden eagles or certain other migratory birds (e.g., permits that allow birds to be killed, harassed, or captured); Section 3301 related to the Bureau of Reclamation's Fontenelle reservoir; and Section 5007 related to water resources research institutes at state universities that are supported through a program administered by the U.S. Geological Survey.

AWIA 2018 also included provisions that were not tied to a specific agency; Section 1042, for example, related to the use by federal and state agencies of geomatic data in the approval of federal authorizations (conditional upon subsequent onsite inspection).

In addition, AWIA 2018 would have addressed an array of water-related programs and activities specific to tribes; most of these provisions were in Subtitle I of Title III. They included provisions related to Indian dam safety and irrigation authorities and USACE housing assistance related to certain dam construction in the Pacific Northwest. A few provisions were in other titles of AWIA 2018; for example, Section 1040 would have required that nonfederal interests for a water resource development study or project be provided "the opportunity to participate in all consultations with Federal and State agencies and Indian tribes required by Federal law." WRDA 2018 had fewer provisions affecting tribes than AWIA 2018, and they directly related to USACE activities.

USACE in WRDA 2018 and AWIA 2018

USACE-Related Context and Issues

Hearings and statements related to water resource projects during the 115 th Congress have referenced not only the importance of USACE activities in addressing demand for water resource infrastructure and the resulting benefits but also the agency's $96 billion backlog of construction activities. This backlog reflects the costs associated with constructing new works and rehabilitating existing infrastructure to maintain its safety and services. This backlog also reflects the difference between federal funding appropriated for these projects and the rate of project authorization. Among the issues that shaped the deliberation of WRDA 2018 and AWIA 2018 were the extent to which the legislation addresses the delivery of water resource projects and the legislation's effect on federal spending.

Congress has, particularly in WRRDA 2014 and WIIN, provided opportunities for nonfederal entities to have more prominent roles in the delivery and funding of projects, while maintaining the division of costs and responsibilities between the federal government and nonfederal project sponsors. Nonfederal entities have been using these authorities to conduct work on studies and projects and to receive federal credit or be eligible for reimbursement for this work. WRRDA 2014 also provided for new or expanded authorities for novel financing of water resource projects, including authorities for piloting public-private partnerships (P3) and the Water Infrastructure Finance and Innovation Act (WIFIA) credit assistance program. USACE's WIFIA and P3 efforts have encountered implementation challenges.

Although President Trump (as well as previous Presidents) and many Members of Congress have expressed interest in improving the nation's infrastructure, including its water resource infrastructure, balancing the potential benefits of such improvements and concerns about increased federal expenditures poses an ongoing challenge. Cost estimates by the Congressional Budget Office (CBO) have been part of the deliberations about previous water authorization bills and have influenced which provisions are included in enacted legislation. On June 4, 2018, CBO released a cost estimate on H.R. 8 as reported by the House Committee on Transportation and Infrastructure; on June 28, 2018, CBO released a cost estimate for S. 2800 , as reported; and on July 10, 2018, CBO released an estimate of the direct spending and revenue effects for the amendment in the nature of a substitute to H.R. 8 (as posted on the Senate EPW website on July 9, 2018).

USACE Topics Related to WRDA 2018 and AWIA 2018 Deliberations

Provisions in WRDA 2018 and AWIA 2018 would have addressed the following selected broad USACE topics:

information dissemination and public input; USACE permissions and permits for nonfederal activities; studies of USACE structure and efficiency; budget processes for USACE; nature-based alternatives and projects; continuing authorities programs; project and study deauthorization; independent peer review; innovative financing for water resource projects; permitting of nonfederal water storage; and pricing of storage for domestic, municipal, and industrial water supply.

Table 3 discusses each of these topics. Although both WRDA 2018 and AWIA 2018 included provisions related to USACE structure and efficiency, neither proposed to shift USACE civil works responsibilities out of the Department of Defense. In June 2018, the Trump Administration proposed transferring the USACE navigation responsibilities to the Department of Transportation and all other civil works responsibilities to the Department of the Interior.

In addition to the topics and provisions described in Table 3 , numerous other USACE policies, authorities, and projects were addressed by other provisions of WRDA 2018 and AWIA 2018. These other provisions, as well as concerns that have shaped previous deliberations on USACE authorizing legislation, also shaped congressional deliberations of WRDA 2018 and AWIA 2018. Examples of such topics include the following: authorities for credit and reimbursement for nonfederal investments associated with USACE projects, authorities for USACE beach nourishment activities, USACE authorities for environmental infrastructure assistance, and disposition of functioning and obsolete USACE infrastructure, private funding for the processing of USACE permits and permissions, and mitigation of the wetlands and environmental effects of USACE projects.

WRDA 2018 included a limited number of project-specific provisions; AWIA 2018 included project-specific provisions and numerous provisions that related to specific river basins or states. These types of provisions have at times shaped past debates of omnibus USACE authorization legislation. Congressional deliberations in the 115 th Congress also were shaped by project-specific provisions or provisions that address specific river basins or states.

H.R. 8 as marked up by the House Transportation and Infrastructure Committee included a provision related to the use of the Harbor Maintenance Trust Fund (HMTF) to support navigation; the provision was not included in the House Rules Committee Print 115-72 or in H.R. 8 as passed by the House. The HMTF provision would have provided that, for FY2029 and thereafter, the Secretary of the Army shall have available without further appropriations monies from the HMTF to cover the eligible operations and maintenance costs assigned to commercial navigation of all U.S. harbors and inland harbors. AWIA 2018 did not contain an HMTF provision similar to the one in H.R. 8 as marked up by House Transportation and Infrastructure Committee.

EPA in WRDA 2018 and AWIA 2018

EPA-Related Context and Issues

In addition to water resource issues, the 115 th Congress has given considerable attention to drinking water and wastewater infrastructure management and funding issues. Numerous bills have been introduced to amend EPA-administered programs under the Clean Water Act (CWA) and/or the Safe Drinking Water Act (SDWA) to help municipalities meet public health and environmental quality goals through drinking water and wastewater infrastructure improvements and other means. These bills would variously increase federal investment in water infrastructure, promote infrastructure resiliency and sustainability, and increase capacity to comply with CWA and SDWA mandates. Many of these objectives were incorporated in provisions of AWIA 2018.

Similarly, WRRDA 2014 and WIIN in 2016 addressed water infrastructure programs administered by EPA. WRRDA 2014 included WIFIA, which authorized EPA and USACE to provide credit assistance for an array of water infrastructure projects, including projects to build and upgrade wastewater and drinking water treatment systems—and, specifically, projects eligible to receive assistance under the Clean Water State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF) programs. WIFIA specifies that state infrastructure finance authorities are eligible to receive WIFIA assistance. WRRDA 2014 also made significant revisions to the CWSRF program. In 2016, WIIN, Title II (Water and Waste Act of 2016), made numerous amendments to SDWA.

EPA Topics Related to WRDA 2018 and AWIA 2018 Deliberations

AWIA 2018 included numerous provisions involving EPA-administered water quality infrastructure programs and other authorities. Most of these provisions occurred in Title V, but other titles also featured EPA-relevant provisions (e.g., Section 3702 proposed to amend and reauthorize EPA's Long Island Sound programs).

Title V of AWIA 2018 would have amended the CWA to (1) reauthorize the appropriation of grants for municipal sewer overflow projects and to make stormwater management projects eligible for these grants; (2) authorize a technical assistance program for small- and medium-sized wastewater treatment works; and (3) formally authorize EPA's integrated planning initiative, which is intended to help municipalities comply with multiple CWA wastewater discharge mandates. AWIA 2018 would have further amended the CWA to require certain EPA offices to promote the use and coordinate the integration of green infrastructure into permitting, planning, research, funding guidance, and other activities, among other provisions.

Section 3308 of AWIA 2018 proposed to amend the CWA to codify in statute the existing EPA regulations on water transfers. It would have defined water transfer as "an activity that conveys or connects waters of the United States without subjecting the water to intervening industrial, municipal, or commercial use." It would also have specified that discharges from water transfers do not require a CWA permit, with the exception of pollutants introduced by the water transfer activity itself to the water being transferred. That is, surface water containing pollutants (e.g., nutrients, sediment, or invasive species) could be transferred to another waterbody or watershed without being subject to CWA controls.

Regarding SDWA authorities, Title V of AWIA 2018 would have made several changes to the act's DWSRF provisions, including making permanent the requirement that projects receiving DWSRF assistance must use iron and steel products produced in the United States. Among other SDWA amendments, AWIA 2018 would have (1) expressly authorized EPA's WaterSense program, and (2) revised the SDWA grant program for testing for lead in school and childcare-program drinking water.

Additionally, AWIA 2018 included several WIFIA amendments. Title V would have removed WIFIA's designation as a pilot program and added a new section to WIFIA regarding loans to state CWSRF and DWSRF finance authorities. Although state SRF financing authorities are currently eligible to receive WIFIA assistance, these provisions would have authorized EPA to provide secured loans at subsidized interest rates for states meeting certain conditions. Unlike other WIFIA assistance, this section also would have allowed the use of federal assistance to support 100% of project costs, and it would have waived application fees. In addition, AWIA 2018 proposed to authorize EPA to establish a water infrastructure resiliency and sustainability grant program; authorize an Indian reservation drinking water and wastewater infrastructure pilot program at EPA; and support water utility workforce development.

AWIA 2018 also called for studies on "intractable water systems" and on WIFIA accessibility for certain communities. These and other water quality and drinking water provisions are described below in Table 4 . In contrast, WRDA 2018 contained none of these provisions.