The federal government’s fiscal year is half over, and we finally have a spending bill for the remainder of the year. It took a couple government shutdowns, numerous short-term fixes, and countless fights about particular programs, but it’s over. Putting aside whether this is a good way for Washington, DC to do business (hint: it isn’t), this post reviews what’s in the bill with respect to federal clean water policy.
The $1.3 trillion omnibus bill will fund government operations through September. While far from perfect, the bill largely steers clear of policy directives (known as “riders”) that would weaken clean water safeguards.
It also represents a bipartisan repudiation of the draconian spending cuts sought by President Trump, as it maintains and, in some cases, even increases funding support for important water quality programs. Consequently, the bill represents a major victory for clean water champions in Congress over both the Trump administration (which advocated for massive funding cuts for critical programs) and anti-environmental Republicans (who pushed a number of dangerous riders).
Show Us the Money – Funding Levels for Key Programs
If the federal appropriations process were remotely rational, the bill would be pretty ho-hum, because many federal clean water programs need significant increases in support. But in our current political climate, the bill’s funding levels are cause for celebration. That’s because Congress thoroughly rejected the Trump administration’s requests to gut clean water spending in numerous ways. If you’re interested in learning more about some of the radical cuts the administration wants, my colleague Jon Devine previously wrote about the Trump budget proposals for FY2018 and FY2019.
Here are some notable numbers in the new bill:
EPA Environmental Programs & Management: This pot of money supports EPA’s core functions for all media, including water. These funds enable EPA to oversee state pollution control programs, develop safety standards, enforce the law against illegal polluters, and conduct basic scientific and technical analysis. The final bill increases this support very slightly – by less than 1 percent – compared to last fiscal year, but that’s much better than the 38 percent cut the Trump administration wanted.
Within the Environmental Programs and Management Account, Congress told the Trump administration to jump in a lake with respect to its proposal to eliminate (or nearly eliminate) funding for many important programs. This includes watershed-focused improvement initiatives targeting the Great Lakes, Chesapeake Bay, the Gulf of Mexico, Lake Champlain, Long Island Sound, and Puget Sound, to name a few. If the federal government had abandoned its role in these multi-year, multi-jurisdiction restoration plans, substantial investments could have been lost and those iconic waters could have degraded.
Congress also directed EPA to maintain the popular and successful WaterSense voluntary labeling program, which helps consumers and businesses identify products that meet the program’s water-efficiency and performance criteria.
Infrastructure Funding: The bill increases grants to state “revolving funds,” which are the primary vehicles by which the federal government supports investments in wastewater and drinking water infrastructure. These grants go up by a total of $600 million in FY18. This increased investment – while still far short of what we need to do – represents a step in the right direction. It also contrasts with the Trump infrastructure scheme unveiled earlier this year, which – as I explained last month – fails to make any meaningful financial commitment to improving water infrastructure.
One additional thing to note about the revolving funds: this year states will be allowed to use an additional 10 percent of their federal Drinking Water revolving fund allocation to give grants, or subsidized assistance, for removing lead pipes that carry drinking water to people’s homes. For Michigan, an additional 20 percent is available for this purpose, allowing the state to provide assistance to Flint to deal with the horrible public health crisis there.
EPA also received an additional $63 million for water infrastructure financing under the Water Infrastructure Finance and Innovation Act (WIFIA), which could leverage up to $6.6 billion in financing through various mechanisms. The agency is still evaluating the first round of funding proposals it received in 2017, but the increase in funding will allow it to support more projects that promote green infrastructure, water efficiency, and climate-resilient water infrastructure, the intended priorities for the program.
For the first time ever, the omnibus bill funds three programs that were originally created under the Water Infrastructure Improvements for the Nation Act. These programs can now help small, disadvantaged, and rural communities bring their drinking water systems up to health and safety standards, undertake lead reduction projects, and test for lead in school drinking water systems.
The bill rejects the Trump administration’s proposal to slash funding for Alaska Native Villages and along the U.S.-Mexico border. These programs would continue at prior funding levels, providing support for basic sanitation and drinking water supply projects.
Grants to State and Tribal Pollution Control Programs: The bill provides $1.076 billion in funding for state and tribal pollution control programs – an increase of about 1 percent from FY17. These funds help local agencies implement the core environmental laws on which we all rely, including the Clean Water Act. The Trump administration previously proposed massive cuts – roughly 60 percent – to water-related grants to states, which would have eviscerated the day-to-day implementation of clean water requirements.
As part of preserving these state grants, Congress ensured continued funding for programs that help states control pollution from so-called “nonpoint sources,” such as runoff from agricultural fields; enable states to assess and restore wetlands; and assist states in running beach monitoring and public notification programs, which help people know about risks of waterborne illnesses from swimming in contaminated water.
Easy, Riders – Anti-Environmental Policy Provisions
NRDC and our partners were gravely troubled by the push by many Republicans in Congress to include damaging ideological riders in the final spending legislation. A few of them specifically targeted clean water protections, but I am happy to say that champions in Congress ensured that the two most reckless ones would not be included.
Congress rightly rejected a provision that would have resurrected the Yazoo Backwater Pumps Project in Mississippi. This rider sought to essentially reverse the Bush administration’s “veto” of this project and order its construction, despite the threat that it could lead to the unacceptable damage of 200,000 acres of ecologically-rich wetlands.
In addition, Congress thankfully did not adopt an especially radical provision that aimed to shield the Trump administration’s repeal of the Clean Water Rule – a critical safeguard for numerous waters, including the sources of drinking water of 117 million people -- from public and legal scrutiny. This rider would have exempted such a repeal from any statute or regulation that would have otherwise applied, sabotaging the public’s ability to have a voice in the actions of their government. If enacted, this rider would have encouraged the administration to ignore the Clean Water Act and Administrative Procedure Act’s requirements to meaningfully consider public comment. It could have also interfered with the courts’ ability to review if the repeal is “arbitrary or capricious.” It is hard to imagine a more undemocratic provision, especially when you consider that the Clean Water Rule was adopted after years of scientific research and public engagement.
Despite these major successes, the bill is not free of stealth attacks on clean water.
- One section of the bill prohibits federal funding from being used to require a pollution discharge permit for certain activities. However, the Clean Water Act already exempts those activities from permitting, such that this provision raises questions about what it seeks to achieve, and could cause confusion in the implementation of the law.
- An “explanatory statement” accompanying the bill urges EPA to weaken standards for certain Alaska seafood processing operations, even though those operations already enjoy less stringent treatment compared to ordinary fish processing facilities.
- The accompanying statement also includes a discussion of a legal issue that sometimes arises under the Clean Water Act – whether a polluter must get a discharge permit if it dumps into waterways through groundwater. This statement notes that EPA recently asked for public comment on whether to change its longstanding view that facilities polluting in this manner need permits and encourages “the Agency to consider whether it is appropriate to promulgate a rule to clarify that … releases of pollutants through groundwater are not subject to regulation as point sources under the CWA.” Read carefully, this doesn’t say anything remarkable – it just says EPA should consider whether to do a rule, which it is likely thinking about anyway. However, EPA Administrator Scott Pruitt, who hasn’t missed any opportunity to attack clean water safeguards during his inglorious tenure, could misconstrue this language as a Congressional suggestion to make mischief.