Water Bill May Navigate 2016 Congressional Rapids

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By Alan Kovski

Aug. 4 — If a Water Resources Development Act of 2016 is passed by Congress this year, it will be accompanied by sighs of relief at seeing the infrastructure legislation successfully get back on a two-year schedule.

It is expected to authorize at least 28 U.S. Army Corps of Engineers projects and reinforce the momentum of efforts to replace or rehabilitate locks and dams crucial to much commercial transportation in the U.S.

The legislation is notably important over the long term to companies sending barges laden with crude oil and petroleum products, coal and other raw materials, food and farm products, chemicals, iron and steel through aging locks by old dams on rivers from Pennsylvania to Minnesota.

Other parts of the country also have important inland navigation routes, but the Mississippi, Illinois, Ohio, Tennessee and Monongahela rivers have a large share of the old locks needing extensive rehabilitation or replacement.

The legislation also is invaluable for ports in need of deepening and widening and for the levees and flood walls essential to flood control. To those core WRDA functions, the Senate bill adds authorizations for assistance to drinking water and wastewater systems and additional aid for the lead-contaminated drinking water system in Flint, Mich., and other localities with drinking water pollution problems.

But time is running out for action in 2016. When Congress returns to Capitol Hill Sept. 6, there will be only eight weeks left in its schedule for this year, with appropriations and the National Defense Authorization Act expected to have priority. It may prove difficult for WRDA to navigate the narrow time constraints, especially given the novel complexities in this year's legislation.

Strategy for WRDA Shaped Up

The Senate Environment and Public Works Committee passed its version of WRDA 2016 ( S. 2848) in late April on a 19-1 vote, and a month later the House Transportation and Infrastructure Committee passed its version ( H.R. 5303), a much slimmer basic infrastructure bill, on a voice vote without dissent.

Then summer recess arrived on a final flurry of arguments over appropriations, including how to fund efforts to stop the spread of the Zika virus.

During the recess, congressional staff are working on a strategy to smooth the way for WRDA in September and avoid the need of a House-Senate conference, a source told Bloomberg BNA.

The idea is to coordinate a fair amount of understanding between the House and Senate on how to revise the Senate WRDA bill through a substantial manager's amendment on the floor, amendments that would not be especially troublesome to House members. The bill would then be sent to the House for more changes—but not controversial ones—and then it would come back to the Senate for final acceptance.

That is the idea, anyway. It remains to be seen whether some lawmakers will resist what they might see as an attempt by congressional leaders to push something through without extensive opportunities for amendments by anyone wanting to have an impact.

Senate Amendments Gathered

Sens. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, and Barbara Boxer (D-Calif.), ranking member of the committee, asked fellow senators to send amendments to them by July 29 in preparation for a manager's amendment.

Inhofe and Boxer also met in late June with lobbyists to encourage them to push for the bill. For Boxer, the bill may be a last achievement before she retires. For both senators, water infrastructure is stressed as something with an importance parallel to surface transportation, another subject in their committee jurisdiction.

“There were a bunch of us in the industry that were called into a kind of pep rally with Senator Inhofe and Senator Boxer,” said Craig Montesano, vice president of legislative affairs at the American Waterways Operators, a group that advocates for the tugboat, towboat and barge industry.

Stakeholder groups are taking time in August to meet with their respective congressional delegations when members of Congress are back in their home districts, said Amy Larson, president of the National Waterways Conference, an association uniting diverse array of stakeholders in promoting water infrastructure.

Larson's and Montesano's associations are among the prominent advocates for WRDA, along with the American Association of Port Authorities and the Waterways Council Inc., with backup support from the American Society of Civil Engineers. Behind them are the grain shippers, oil refineries, coal shippers, steel mills and others relying on water movement of commodities.

Provisions May Help or Hurt

The addition to the Senate bill of financial assistance provisions for drinking water and wastewater systems complicated the subject for the House by crossing committee jurisdictions, as did the addition of provisions for water supply management at federally managed reservoirs.

In the House, the Energy and Commerce Committee and the Natural Resources Committee both need a seat at the table along with Transportation and Infrastructure. Energy and Commerce oversees drinking water issues while Transportation and Infrastructure has jurisdiction over Clean Water Act issues and corps projects. The Natural Resources Committee oversees the Bureau of Reclamation.

It remains unclear whether the additional provisions will help or hurt. Michigan's senators, especially, want WRDA to pass with assistance for Flint, and Boxer is a strong advocate for assistance to drinking water and wastewater systems. Lobbyists are unwilling to predict whether the added provisions in the Senate bill will increase support for passage or slow progress because of the greater number of potential political sticking points.

“I've given up trying to guess what Congress will do,” Larson told Bloomberg BNA.

She limited herself to hoping for action. “If appropriations bills are not going to be given floor time in September, we would encourage Congress to make floor time for WRDA,” she said.

Looking ahead, Montesano said, “The schedule certainly does not favor the passage of a lot of legislation. The question is, what are the windows here?”

Kentucky is a state with much commerce dependent on inland waterways, giving Senate Majority Leader Mitch McConnell (R-Ky.) added motivation to consider floor time for WRDA. McConnell is a champion for waterways, Montesano said.

Shuster Has Strong Interest

Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, comes from a state that, like Kentucky, has much commerce dependent on river transportation.

The Monongahela River passes through Shuster's district and feeds into the Ohio River at Pittsburgh. One of the big ongoing projects for the corps is a combined replacement and removal of old locks and dams at three sites on the Monongahela River, a project known as Lower Mon 2, 3, 4.

The corps also has a plan for replacing locks in Pennsylvania at three sites west of Pittsburgh on the Ohio River—the Montgomery, Dashields and Emsworth locks and dams. The Upper Ohio Navigation Study is undergoing final reviews for National Environmental Policy Act compliance at state and federal levels.

Shuster has expressed a strong interest in seeing the Upper Ohio Navigation Study completed and sent to Congress as a chief's report, signed by the chief of engineers at the corps. If it is not ready in time for addition to WRDA 2016, it will have to wait two years for the next WRDA under “regular order,” meaning a two-year cycle.

The delay of WRDA from June to September gave the Upper Ohio Navigation Study more time to get through the regulatory hoops. A longer delay, to a lame duck session after the November elections, would provide more time, but Shuster still may have to settle for getting that project into a future water infrastructure bill.

Shuster, Inhofe and the associations lobbying for WRDA all agree that if nothing else, passage of WRDA 2016 will be an important step to live up to the commitment Congress made in 2014 to get back to a two-year cycle of water infrastructure bills so that project authorizations are not backlogged. The Water Resources Reform and Development Act of 2014 (Pub. L. No. 113-121) was the first water infrastructure bill in seven years.

Working, Halting, Working Again

Basic improvements to inland waterways are financed through the Inland Waterways Trust Fund by a tax of 29 cents a gallon on diesel fuel used by commercial barges. Starting in 2015, the tax was raised from 20 cents a gallon at the behest of companies paying the tax, and now shippers want to see the money put to work.

It is a slow process—many years to complete studies, then many more years of waiting until funds become available for the work to be done, the funding decisions tied to a priority list of urgent projects. Projects have started and stalled as funding fell short.

In Tennessee, work restarted in fiscal 2016 on the new Chickamauga lock on the Tennessee River, seven miles upstream from Chattanooga. The work had been stalled for four years as the Olmsted locks and dam project on the Ohio River between Illinois and Kentucky absorbed available funds. That funding bottleneck was eased when the 2014 act shifted 85 percent of the Olmsted cost to general Treasury revenues rather than the usual 50-50 split between Treasury and Inland Waterways Trust Fund.

The old lock at Chickamauga, built in 1940, was shut down in July for maintenance work, stopping all barge traffic past the neighboring dam until a scheduled resumption of lock operations Aug. 11. Upstream, commerce on 318 miles of the Tennessee River depends in part on that lock reopening.

One common worry about aging locks is the risk of a severe unplanned failure that could stop barge movements for many months, maybe more than a year.

Hopes for Improved Systems

The upper Mississippi River, north of St. Louis, has a series of locks and dams, while the lower Mississippi is wide and deep enough that no locks and dams have been needed. Where old locks exist, they often are 600 feet in length, or half the length now wanted, in addition to the fact that their old walls are decaying.

The typical 15-barge tow, plus towboat, is about 1,200 feet long and must be shuttled through a 600-foot lock in two parts, adding delays to transportation.

In the Water Resources Development Act of 2007, Congress approved replacing 600-foot locks with 1,200-foot locks at five sites on the upper Mississippi. The same act also authorized 1,200-foot new locks on the Illinois River at LaGrange and Peoria. None of those replacements has been funded yet.

“We would anticipate that first-year funding for LaGrange would occur in the FY 2023 appropriations,” Mike Toohey, president of the Waterways Council, told Bloomberg BNA.

In Kentucky, a 1,200-foot lock is being built on the Tennessee River at the northern end of Kentucky Lake. But the Upper Ohio Navigation Study, still undergoing review, says the best economics for replacing the Montgomery, Dashields and Emsworth locks would involve new 600-foot locks. The new lock at Chickamauga also will be 600 feet.

Industry groups and members of Congress generally give the corps great credit for keeping locks and dams functioning more than half a century after they were built. Arguments have focused on financing and avoidance of earmarks rather than the merits of corps work. Environmental concerns about inland navigation have tended to be muted in the central U.S. in recent years, partly because the days of building large new dams in most of the U.S. are long past.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The Senate version of the Water Resources Development Act of 2016 is available at http://src.bna.com/hmP.

The House version of the Water Resources Development Act of 2016 is available at http://src.bna.com/hmQ.

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