National Waterways Conference Meeting Examines Potential Congressional Actions

The National Waterways Conference (NWC) celebrated its 60th anniversary November 9-10 with a virtual annual meeting focused on connecting members with the government leaders and elected officials making federal policy decisions that directly impact them.

NWC members include those from organizations that interact with the U.S. Army Corps of Engineers, including state and local governments, waterways shippers, carriers, farmers, flood control organizations, levee boards, port authorities, industry and regional associations, dredging contractors, hydropower producers, engineering consultants and others.

David Yarbrough, NWC chairman of the board and director of the Tulsa Port of Catoosa, moderated many of the sessions and introduced a celebratory video with footage of past chairmen talking about the organization’s history and congratulating NWC on reaching the milestone anniversary.

The meeting included sessions on potential congressional actions as well as information provided by the Corps of Engineers and sessions on communicating with government during the pandemic and legal and environmental issues.

In a session on the future of water resources in the nation, Assistant Secretary of the Army (Civil Works) R.D. James talked about work completed as well as emerging needs.

“We made it easier to identify what is the ‘Waters of the United States’ and what is not, identifying what needs permitting and what does not moving forward,” James said of one significant accomplishment, which determines which waters are subject to the regulations of the Clean Water Act of 1972.

On April 21, the Environmental Protection Agency (EPA) and Department of the Army published the Navigable Waters Protection Rule in the Federal Register, providing a revised definition of which waterways are included and which fall under other jurisdictions. James said that was an important step in eliminating confusion and controversy and promoting commerce while protecting the nation’s ecosystems.

James also asked whether 1930s technology would continue to be permitted with automobiles and roads or airplanes and airports before saying of course it would not.

“Yet our country is only supporting 1930s waterways,” he said. “Modern towboats can barely squeeze through these locks.”

Lock rehabilitations and replacements must take place to keep up with what other countries are doing, he said, adding, “Without a national awakening, I’m fearful we’re going to lose that advantage.”

That means actual work taking place and not just planning, he said.

“We will move dirt and once again prioritize navigational and flood-control projects,” James said, adding that both priorities must be considered together.

He also talked about the benefit of approving continuing contracts at lock and dam and other infrastructure projects, preventing the escalation of time and cost to the projects.

“Continuing contracts will save the federal government and local partners millions of dollars,” James said. “It’s a simple concept. However, I have been unsuccessful with its acceptance in D.C.”

Questions included asking about the possibility of money for supplemental relief for those responding to five hurricanes hitting the Gulf region this year to help maintain navigable depths. James said, unfortunately, there had not been movement on providing that relief and that, indeed, even a final version of the congressional appropriations bill had yet to be passed by both houses and signed into law.

Fall 2020 Congressional Forecast

The appropriations bill also came up in a session titled “Congressional Forecast For Fall 2020,” which was hosted by Julie Minerva, partner with Carpi & Clay, and Jim Davenport, partner with Thorn Run Partners.

Although the House approved 10 of the 12 appropriations bills in Congress, more or less along party line votes, the Senate bills stalled before getting to the subcommittee, Davenport said. However, he noted, drafts of the Senate bills were released beginning November 10.

Looking at the Water Resources Development Act (WRDA), Davenport said the version approved on a voice vote in the House on July 29 includes 34 new water resources projects and asked for  expediting of 41 feasibility studies as well as authorizing additional new ones. The Senate version passed through the subcommittee level in May but then stalled. Minerva said the Harbor Maintenance Trust Fund has been a sticking point in the Senate version, but she has seen some recent movement on it and hopes a conference agreement on WRDA will be introduced before Thanksgiving and passed in early December.

Davenport and Minerva also discussed the uncertain possibility of legislative relief in response to COVID-19, which has also been stalled in Congress.

“I think it’s fair to say we’re seeing a wide range of challenges in the maritime space,” Minerva said.

One bill included in the National Defense Authorization Act that has a chance of being considered in the lame-duck session is the Maritime Transportation System Emergency Relief Act (MTSERA), which Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-Ore.) and Chair of the Subcommittee on Coast Guard and Maritime Transportation Sean Patrick Malone (D-N.Y.) introduced in July. The legislation is designed to provide relief to the maritime industry during national emergencies, such as the COVID-19 pandemic or natural disasters.

Both Davenport and Minerva also talked about the likely necessity of another stopgap spending bill before appropriations measures pass.

Corps Perspectives

Three representatives from the Corps participated in a conference session titled “A Fireside Chat with the U.S. Army Corps of Engineers,” moderated by Julie Ufner, NWC president and CEO.
Alvin Lee, director of Civil Works for the Corps, said while most of the conferences the Corps participates in include representatives from the navigation industry only, the National Waterways Conference draws a broader group, allowing more varied engagement, which can be helpful. He also highlighted a few personnel changes from this year, including Maj. Gen. William H. Graham Jr. being named the Corps’ deputy commanding general for civil and emergency operations, overseeing all Corps civil works activity as well as responses to storms and other natural disasters.

Lee also went through the Corps’ Revolutionize Civil Works program, which includes four objectives: accelerate project delivery, transform project financing and budgeting, improve permitting and regulation reform and proactive engagement and communication with partners.

“Strategic engagement in this COVID-19 pandemic is really, really important,” Lee said.

Stacey Brown, chief of programs integration (civil works), noted that since the 2018 WRDA, the Corps has completed 42 chief’s reports recommending $14.6 billion in waterways solutions. Including those recommendations would bring the amount of authorized but unconstructed projects to between $112 and $115 billion, she said.

About half of the projects recommended in chief’s reports in the two-year period have been included since COVID-19 hit in the United States, and many in the Corps’ administration began working from home. An additional four chief’s reports are expected to be completed in November, Brown said. She compared that with the period between WRDA 2016 and 2018, when the Corps recommended 13 chief’s reports containing $5.8 billion in recommendations.

“All indications we’re hearing are if Congress is going to act on a Water Resources Development Act, it would happen about the middle of December, so we’re trying to get as many chief’s reports across the finish line as possible so they are there for Congress to consider,” Brown said.

Brown also noted that the Corps is currently operating under a continuing resolution with funding set to expire December 11. If an appropriations bill is passed during the upcoming lame-duck session of Congress, she said, the Corps would have 60 days following that to develop a work plan, which would put it on track for February, at the same time the budget is due for the next fiscal year. However, she said, one option utilized in the past when there is a change in presidential administrations allows a 90-day extension before releasing the budget. That timeline would decouple the work plan from the next fiscal year budget, which would be released in May, Brown said. That could create additional flexibility with the work plan, she said.

Another potential scenario exists because of the uncertainty over which political party will have control in the Senate, Brown said. It would involve Congress passing another continuing resolution that would extend to February or March, allowing time for runoff elections in Georgia to be completed. Those two Georgia Senate seats will determine whether the Democrats hold 48, 49 or 50 Senate seats. If that option is exercised, that would delay the appropriations bill until early next year and thus also delay the Corps’ work plan until April or May. That could ultimately mean the work plan would be released simultaneously with a May budget.

“Just like the rest of FY 2020 has been fairly unpredictable, we’ll just have to wait and see how things play out,” Brown said.

Finally, Thomas Smith, chief, Operations and Regulatory, talked about some of the challenges of COVID-19 and continuing essential work. One segment he found particularly intriguing was in the recreational areas the Corps oversees. He noted that while the Corps initially shut down recreation services along with other federal and many other entities, over time a national push for people to spend recreational time outside, where social distancing was easier, led to those areas reopening.

“Once again we think we adapted to that well, but it was not without challenges,” Smith said.

2021 Congressional Forecast

The final session of the conference focused on what the 117th Congress may undertake after being sworn in January 3. Charles Brittingham II, senior vice president of Cassidy & Associates, and Jason Albritton, director of U.S. Climate and Energy Policy for The Nature Conservancy, held a back-and -orth discussion on several topics.

Allbritton noted that although the nation is still waiting for certified results from the presidential election, in which the president’s team has raised several legal challenges, as well as runoff races in Georgia that could determine which political party controls the Senate, “No matter the outcome of all of that, Congress is likely to be largely status quo, as it is now.”

Part of the reason why is that given the state’s history with runoff races, it is unlikely Democrats would win both of the Georgia Senate seats, he said. That would mean U.S. Senate Majority Leader Mitch McConnell remains in control. However, Albritton said, just because it’s unlikely given the history doesn’t mean that Democrats couldn’t possibly win both seats.

He also noted that Republicans picked up several seats in the House of Representatives.

“I think the big question is on what issues will there be room to negotiate across the aisle,” Albritton said.

He added that there is some hope of tackling larger policy issues because of the relationship existing between McConnell and President-elect Joe Biden, but that most issues would likely need bipartisan support.

Brittingham said if Democrats do win both runoff races in Georgia, it would be a completely different political environment. Regardless, however, he also hoped to see certain bills with bipartisan agreements move forward. He thought it was likely WRDA and a highway bill would be among them.

As far as a major infrastructure bill, Albritton said he thinks infrastructure reform is more likely to happen in small packages instead of a big, omnibus infrastructure package.

The sticking point, he said, is likely to be not the cost of the package but from where money is taken to fund it.

“That seems to be the Achilles heel of this a lot of the time,” he said. “Where you can get a lot of agreement on the spending, it’s harder to get agreement on how you pay for it.”

Brittingham said he believes the best opportunity for getting infrastructure improvements through Congress will be as part of the Build Back Better Plan during the first two years of the Biden administration. He noted, however, that any major infrastructure bill cannot realistically move forward without Congress passing an increased corporate tax rate.

“There are no new avenues of revenue generated [other than a corporate tax] that could afford a major infrastructure act,” he said.

Brittingham also said he believes Congress will act first on the Highway Trust Fund, which appears to be nearing insolvency within the next couple of years. That begs the question on whether there will be a gasoline tax of some kind, he said.

Albritton noted that Congress hasn’t yet been able to get a consensus on these issues.

Looking specifically at the chances for a WRDA bill, Brittingham said he believes Democrats and Republicans are very close to getting a deal done, but there is a question of how it will be presented, such as if it could be a rider on an omnibus spending package or even part of a COVID-19 relief package. In the event no deal is reached during the lame-duck session of Congress, he said, he believes both chambers will take up the bills relatively quickly in 2021, likely within the first two months of the year. Albritton cautioned that could be delayed some with any changes in committee chairmanships.

Brittingham said he expects to see some form of legislative relief related to COVID-19 before Christmas because not doing so could create difficult optics.

“I think both chambers want to see a COVID relief bill, and they’d like to see a spending package,” he said. “I believe we’re going to get there.”
However, he said, the size of the relief bill remains to be seen.

Both Albritton and Brittingham expect to see Biden rolling back a number of President Donald Trump’s executive orders in the new year. As for what else, Allbritton said, “There are a lot of question marks, and we will have to see how it all plays out.”