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Editorial - President Signs WIIN Act, Including WRDA 2016 Provisions and More

U.S. Senator Jim Inhofe (R-OK), chairman of the U.S. Senate Environment and Public Works (EPW) Committee, and U.S. Representative Bill Shuster (R-PA), chairman of the House Transportation and Infrastructure Committee, were both outspoken and confident that a Water Resources Development Act (WRDA) for 2016 would become reality this Congressional session, and on December 16, President Obama signed the bill.

Before the final Congressional recess of the year and the last session before a new Administration, the House and Senate had already passed their versions of WRDA 2016 with bi-partisan support on September 15 and 28. 

On December 5, Inhofe and Shuster, along with Rep. Fred Upston, (R-MI), chairman of the House Energy and Commerce Committee, and Rep. Rob Bishop (R-UT), chairman of the Natural Resources Committee, announced an agreement on comprehensive water resources infrastructure legislation. A conference committee worked to merge the two House and Senate WRDA 2016 bills.

The new legislation includes WRDA, and dubbed the Water Infrastructure Improvements Acts for the Nation (WIIN) Act, also included legislation for the safety of drinking water and wastewater regulations, and addresses significant tribal and natural resources issues.

Considered bicameral legislation, Chair-man Shuster said the legislation “is the result of hard work and collaboration among our committee and will strengthen the nation’s transportation and water infrastructure, and our economic competiveness.”

On December 8, the House of Representatives passed the WIIN Act by a vote of 360 to 61. On December 9, the Senate voted 78-21 to pass the legislation.

Each respective bill, before the combined WIIN Act, passed with more overall votes, than the final. It was still an overwhelming majority that passed the legislation, but perhaps a little less bipartisan than touted.

The WIIN Act reestablishes Congress on a two-year schedule to reauthorize water re-source legislation. The act has other important directives, in addition to WRDA 2016, which address provisions to improve drinking water infrastructure, control of coal combustion residuals, improve water storage and delivery to help drought-stricken communities, federal dam maintenance backlogs, and approve longstanding water settlement agreements for taxpayers and Native Americans.

Sen. Inhofe was very vocal about using WRDA 2016 to help people facing water infrastructure crisis, like in Flint, Michigan, and other places with drought or water level issues.

In September, after the Senate passed its WRDA bill, Inhofe said: “The Senate passed WRDA bill not only provides the critical sup-port that Flint needs but it also will help to pre-vent future water and wastewater infrastructure crises across the nation. WRDA is the right vehicle, and I am committed to getting this bill to the president’s desk with Senator Boxer and my good friend Senator Stabenow by the end of year.” Title I of the WIIN Act addresses water resources development, Title II and III address the other additions.

THE WINS FOR DREDGING

The WIIN Act does a number of good things for the dredging industry too. It works to assist non-federal interests and advance public-private partnerships for water resource projects. Section 1113 says that the Corps can permit non-federal interests to carry out navigation projects, and they are eligible for reimbursements. The act directs the development of a pilot project for non-federal interests to re-move sediment from behind dams (Sec. 1115). The Corps can provide technical assistance to non-federal interests performing studies for water resources work (Sec. 1126), and Sec. 1128 makes a simple change to make it easier for states to work together on projects with the Corps, not just individual states. It also allows states to combine funding for projects, as many waterways cross state lines.

The WIIN Act also addresses funding is-sues. WRDA 1986 established the cost sharing percentages for the Corps and its non-federal partners on navigation projects. The percent-ages did not change with this year’s legislation, but the depth that triggers a higher percent-age did. For work that does not exceed 20 feet, non-federal partners are responsible for 10 percent. Originally, for work from 20 to 45 feet, non-federal interest paid 25 percent. Now, they pay that percentage up to 50 feet, and 50 percent for any work in excess of 50 feet (which had previously been set at 45 feet).

Part of tweaking the new project authorization process has included a lot of Congressional hearings to discuss the process and get input from the Corps. For each new Corps directive, the legislation requires implementation guidance from the Corps. One Congressional criticism of the process was that the Corps could not provide that guidance quickly enough. In defense of the Corps, WRDA 2014 completely rewrote the book on how it worked with non-federal interests to propose projects and how it disseminated those to Congress for appropriation. It took quite some time to work through all that planning. Now, most of that is complete, except the implementation guidance for Sec. 2102 of WRDA 2014, which outlines operation and maintenance of harbor projects and allocation of the Harbor Maintenance Trust Fund (HMTF). Sec. 1112 of the WIIN Act gives the Corps 90 days from enactment to provide the implementation guidance for this section. The HMTF levels in the annual budget have yet to reached the levels enacted by WRDA 2014. Congress continues to push for full use of those funds as they were intended, for the operation and maintenance of harbors. The WRDA 2014 section also established a schedule for the increase of HMTF levels each year. It also gave emerging harbors at least 10 percent (rather than based solely on size), which was made permanent by the WIIN Act. The 2014 legislation also established the Great Lakes navigation system as a single, comprehensive system, for the recognition of the interdependence of projects across the system. It was an important transition for water resource legislation, particularly with regard to HMTF, and Congress is right to demand guidance from the Corps on how it plans to implement those changes. It’s long overdue at this point. 

In the spirit of transparency, the WIIN Act also makes some efforts to make more dredging data available online, and use technology to simplify the permit process. Sec. 1133 directs the Corps to establish and maintain a publically available database on Corps maintenance dredging. The database should include project and contract information and estimated and actual data on the volume of dredged sediment removed; the initial Corps cost estimate; the final total cost; the dredges doing the work; and the number of contractor bids received, including bid amounts and those that did not win.

Sec. 1135 also directs the Corps to make all data publicly available on the planning, de-sign, construction, operation and maintenance of water resources development projects, and water quality and water management projects. As someone who is frequently researching Corps water resources projects, I can say the agency already has a substantial amount of this information online and in a timely manner. If there is data missing from what’s widely available now, it shouldn’t be difficult to add to what’s there already.

To simplify the permitting process, Sec. 1134 directs the Corps to implement an electronic system to allow the electronic preparation and submission of applications for permits and requests for jurisdiction.

There were also some important studies authorized in this bill. In addition to the feasibility studies authorized in the bill for future projects, it introduced a number of pilot projects and important broad reaching studies.

A pilot project for carrying out beneficial use projects is directed by Sec. 1122. The project should address storm damage reduction, promoting public safety, protecting or creating aquatic habitats, stabilizing systems and shorelines, promoting recreation, supporting risk management adaption strategies (which means finding ways to spread the little bit of money to the most needed projects and priori-ties); and reducing dredging costs and dredged material placement costs. The program will include 10 projects, looking to maximize the beneficial placement of dredged material from navigation channels. It will incorporate two or more federal navigation, flood control, storm damage reduction, or environmental restoration projects, and foster federal, state and local collaboration.

Sec. 1203 establishes the North Atlantic Coastal Region study, a comprehensive assessment and management plan. After the destruction of Hurricane Sandy, the Corps began the North Atlantic Coast Comprehensive Study (NACCS), and as directed in WRDA 2014, the Corps completed a report detailing the results of a two-year study to address coastal storm and flood risk to vulnerable areas affected by Hurricane Sandy. The comprehensive study will now become a management plan.

The WIIN Act also calls for a study on the South Atlantic region to identify the risks and vulnerabilities to increased hurricanes and storm damage as a result of sea level rise.

WHAT WAS LOST IN THE FINAL BILL

The new act does a lot for the dredging industry, but it also left a lot out. The original House and Senate measures had many important provisions that didn’t make it into the final bill.

S. 2848, the Senate bill, called for a pilot program to authorize non-federal interests to maintain federal navigation projects at their cost (Sec. 2015). The original House WRDA bill, H.R. 5303, focused considerably on tweaking the project/authorization process under the new annual report (per Section 7001, WRDA 2014), and transparency in the funding process, but some of those provisions did not make the final cut.

Sec. 132 of the House bill outlined help for the new proposal process and a requirement for the Corps to offer guidance and education to regional authorities. While many Corps districts were already doing this, some are not. It was a concern raised numerous times in Congressional hearings from those that felt their local constituents did not understand the new process.

The House was very much interested in monitoring the budget process more and trying to make that more transparent. One section (141) called for a biennial report on the metrics and project priories used in developing the Civil Works budget. The new project proposal process set forth by WRDA 2014 has tried to make that process more transparent, and there has been some push and pull between Congress and the Corps, as they battle to maintain authority over project authorizations and appropriations. Congress gave up ear marks, and the Corps gladly took up the authority to prioritize projects as it saw fit. Congress has tried to regain some of that control, where it should also be relying on Corps expertise.

Sec. 121 of H.R. 5303 requested a report from the Government Accountability Office (GAO), to look at the costs and benefits on either expanding, reducing and maintaining the federal hopper dredge fleet. The U.S. fleet is terribly outdated. The Corps has repeatedly refurbished over building new to save money, but eventually the fleet will need a major upgrade.

NEW PROJECTS AND FUNDING

A number of these provisions that were left out were important for the dredging industry, particularly assistance to non-federal interests. But the bill also did a lot of good for the dredging industry. It appropriated funds for 30 new projects and modified eight existing projects, and a number of feasibility studies for future projects. Those authorizations are based on the reports submitted to Congress by the Corps, and included navigation projects at Brazos Island Harbor, Texas, ($210,476,000 total funding (federal and non-federal)); Port Everglades, Florida ($337,003,000); Charles-ton Harbor ($502,693,000); and Craig Harbor, Alaska ($32,755,000).

Overall, the bill will do some good things for water resources, and Congress and the Corps will continue to tweak the process for authorizations and appropriations. 

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