The President has signed the Water Infrastructure Improvements for the Nation (WIIN) Act, which was passed by the House and Senate earlier this month. The WIIN Act legislation was originally called the Water Resources Development Act of 2016, but was renamed after incorporating two additional sections. The WINN Act signed by President Obama contains three sections: Water Resource Development; Water and Waste Act of 2016; and Natural Resources.
Title I of the law authorizes water resource development projects, including new studies and construction. All of the Chief’s Reports submitted to committees since the last report received authorization. By relying on the Chief’s Report, the committee is able to circumvent the ban on earmarks. The WIIN Act fully offsets new authorizations by deauthorizing projects that were never constructed. This budget manipulation results in a bill that cost nothing.
Title II of the law, the Water and Waste Act of 2016, addresses drinking water safety, particularly in small and economically disadvantaged communities, an issue which became a priority as a result of the water contamination crisis in Flint, Michigan. The law also addresses disposal of coal ash or coal combustion residuals by establishing state and federal permit programs, while giving states the authority to develop their own rules within specified limits for disposal of coal ash.
Title III of the law addresses natural resources issues, including updates to outdated statutes and policy changes to improve water storage for California and the West. This section of the law also resolves long running water rights disputes with several Indian Tribes and provides authority to improve flood protection infrastructure for certain Indian communities while also expediting repair of water irrigation projects owned by the Tribes in the West.
The following are significant provisions of Title I with regard to water resource development projects:
- Requires the Corps of Engineers to conduct an inventory and assessment of breakwaters and jetties protecting harbors and inland harbors.
- Authorizes the Corps to maintain federally authorized harbors of refuge and to restore and maintain the authorized dimensions of the harbors.
- Attempts to address the imbalance of funding from the harbor fee for donor and receiver ports.
- Authorizes the Corps to allow non-federal entities to dredge authorized federal projects and be reimbursed by the federal government for their costs.
- Prioritizes the expedited updating of water control manuals for control structures in states suffering from drought emergencies. The law also authorizes the Corps to consider increasing water supply and storage at federal projects, except for resources in the Upper Missouri River, the Apalachicola-Chattahoochee-Flint river system; the Alabama-Coosa-Tallapoosa river system; and the Stones River.
- Encourages beneficial use of dredged material by authorizing the Secretary of the Army to construct 10 pilot projects. The Secretary is also authorized to establish regional sediment management teams.
- Authorizes railroads to fund the expedited review of permit applications. Natural gas companies and public utilities already have this authority.
- Allows non-federal entities to receive credit or reimbursement for the construction of a discrete segment of a federal flood damage reduction project.
- Requires the Corps to establish a publically available database of maintenance dredging carried out by the Corps with internal assets or contractors.
- Requires the Corps to make publicly available all data in the Corps’ custody on water resources development projects, including information on the planning, design, construction, operation, and maintenance of these projects, as well as on water quality and water management of projects owned, operated, or managed by the Corps.
- Requires a report on foreign manufactured items used in Corps projects.
- Amends section 14 of the Rivers and Harbors Act of 1899 (30 Stat. 1152, chapter 425; 33 U.S.C. § 408) to provide for concurrent NEPA review of Section 408 applications. This provision is a continuation of Congress’ recent attempts to expedite 408 permits.
- Authorizes the use of the plant replacement and improvement revolving fund to pay for the construction of district headquarters for both the Buffalo and New England Districts.
- Prohibits the Corps from receiving consideration for an easement across water resources development project land for the electric, telephone, or broadband service facilities of non-profit organizations eligible for financing under the Rural Electrification Act of 1936.
- Places limitations on the disposal of dredged material by requiring the Corps to follow State water quality standards approved by the Administrator of the Environmental Protection Agency under section 303 of the Federal Water Pollution Control Act (33 U.S.C. § 1313). This section will likely prohibit open water disposal of dredged material from the Cuyahoga River in Ohio, which has been at the center of a dispute between the Corps and the State of Ohio regarding the disposal site for dredged material from the upper reaches of the River.
- Authorizes 30 new studies with additional authority and emphasis given to studies that drew special interest from Congress.
- Deauthorizes several project features and indicates that specific projects or portions thereof are not subject to the federal navigational servitude. While these provisions are not considered “earmarks,” they are specific to certain projects.
- The law authorizes the construction of 43 projects.
Attorneys and advisors in Kelley Drye’s Government Contracts and Environmental Law practice groups are monitoring implementation of the WIIN Act and advising clients with respect to the new obligations and opportunities it creates. Clients with interests in the areas discussed above should feel free to contact the authors or any other Kelley Drye attorney they work with to discuss if and how the WIIN Act impacts their business.