By Jay Landers
In mid-December, Congress approved the critical water resources legislation known as the Water Resources Development Act of 2022 (H.R. 7776), which authorizes the projects and policies to be undertaken by the U.S. Army Corps of Engineers. The WRDA 2022 legislation is strongly supported by ASCE and addresses several of its priorities, including levee safety, a national inventory of low-head dams, and a change to the cost-share formula for inland waterway projects. The WRDA also addresses increased resiliency for water resources infrastructure.
The House and Senate passed previous versions of WRDA 2022 in June and July, respectively. Following several months of negotiations, congressional leaders announced in early December that they had reached a compromise agreement on the legislation, which had been amended to include the James M. Inhofe National Defense Authorization Act for fiscal year 2023.
The NDAA is annual legislation passed by Congress to implement changes to the nation’s defense agencies and their policies. By packaging WRDA 2022 with this critical, must-pass legislation, congressional leaders helped ensure that the water resources bill would receive a vote before Congress adjourned for the year.
On Dec. 8, the House easily passed the legislation by a vote of 350-80. The Senate took up the bill on Dec. 15, approving it by a vote of 83-11, and President Joe Biden signed the legislation into law on Dec. 23.
“ASCE applauds Congress for WRDA 2022 authorizing and establishing several programs dedicated to ensuring that our nation’s water resources infrastructure benefits communities across the country,” said ASCE President Maria Lehman, P.E., ENV SP, F.ASCE, in a Dec. 16 press statement.
New projects, studies authorized
The WRDA bill authorizes the Corps to construct 25 new projects in 14 states and Puerto Rico. Of these, five are navigation projects, six involve flood risk management, 11 concern hurricane and storm damage risk reduction, one addresses flood risk management and ecosystem restoration, and two involve ecosystem restoration. The legislation also authorizes modifications to six existing projects in four states and Washington, D.C.
In addition, the legislation directs the Corps to conduct feasibility studies for 94 new projects in 30 states and Washington, D.C. These projects involve flood and coastal storm risk management, hurricane and storm damage risk reduction, navigation, ecosystem restoration, recreational access, water supply, streambank erosion, and dam removal and safety improvements.
Among its policy provisions, WRDA 2022 reauthorizes for five years the National Levee Safety Program, an effort conducted by the Corps and the U.S. Federal Emergency Management Agency to improve the management of levees across the country. Originally scheduled to expire at the end of FY 2023, the levee safety program will extend through FY 2028.
Besides reauthorizing the levee safety program, Congress made some important policy changes to the program, says Caroline Sevier, the director of government relations for ASCE. For example, the maximum amount of federal funds that a levee rehabilitation project may receive from the Levee Rehabilitation Assistance Program was increased from $10 million to $25 million.
“Anytime that you can have additional federal funds for some of these projects, that's going to be a benefit,” Sevier says. “They're very expensive. It can be a lot of money out of pocket for nonfederal partners.” At the same time, WRDA 2022 directs the Corps to “prioritize the provision of assistance” from the assistance program “to economically disadvantaged communities,” according to the legislation.
Congress also broadened somewhat the definition of what constitutes levee rehabilitation. Under current law, the term “rehabilitation” means the “repair, replacement, reconstruction, removal of a levee, or reconfiguration of a levee system, including a setback levee, that is carried out to reduce flood risk or meet national levee safety guidelines.”
WRDA 2022 amends this definition to include efforts to “increase resiliency to extreme weather events,” according to the bill.
“Any levee projects that are related to climate resilience would now be eligible” for federal funding from the assistance program, Sevier says.
In the realm of dam safety, WRDA 2022 directs the Corps to develop a national inventory of low-head dams, which the legislation defines as “a river-wide artificial barrier that generally spans a stream channel, blocking the waterway and creating a backup of water behind the barrier, with a drop off over the wall of not less than 6 inches and not more than 25 feet.” This inventory is important because under certain hydraulic conditions, low-head dams can generate dangerous recirculating flow patterns known as reverse rollers that can trap a person, often resulting in death.
The legislation authorizes $30 million for the Corps to develop a publicly available inventory of low-head dams within 18 months of WRDA 2022 becoming law. The inventory, according to the legislation, is to include public safety information on the dangers of low-head dams and such information as:
- The location, ownership, description, current use, condition, height, and length of each dam.
- Available information on public safety conditions at each dam.
- A directory of financial and technical assistance resources available to reduce safety hazards and barriers to fish passage at low-head dams.
Inclusion of the language requiring the development of a national low-head dam inventory was an ASCE priority, Sevier says. “We were really pleased to see that included in the final legislation,” she says.
However, ASCE did not get its wish to have the National Dam Safety Program reauthorized as part of WRDA 2022. Overseen by the Corps and FEMA, the program is scheduled to lapse at the end of FY 2023. “ASCE was really pushing hard to get that authorization in there,” Sevier says. That said, congressional staff indicated that members of Congress wanted to keep WRDA 2022 “very Corps focused,” she says.
Securing the reauthorization of the dam safety program “will be a top priority for ASCE going into the upcoming year,” Sevier says. Given past bipartisan support for the program, Sevier expects that lawmakers will prioritize its reauthorization in 2023. “Members of Congress really understand the impacts to public safety,” she says.
Inland waterway funding
WRDA 2022 revisited the question of how much federal funding for inland waterways projects should come from the government’s general fund versus the Inland Waterways Trust Fund, which receives revenues raised by a tax on commercial barge fuel used on federally designated waterways. The fund pays a portion of the cost of construction and major rehabilitation on those waterways.
Originally, federal funding for such projects took the form of 50% general funds and 50% IWTF funds. In 2020, Congress changed this formula to 65% general funds and 35% IWTF funds, with this change set to expire in 2031. In this way, greater reliance on general funds would make available additional IWTF funding to pay for more projects.
Under WRDA 2022, the existing cost-share formula was made permanent. Before the agreement between House and Senate leaders on the final version of the legislation, the Senate’s version of the bill sought to increase the share of the general fund to 75% and reduce the IWTF portion to 25%. Although ASCE supported the Senate’s approach, the provision did not survive the negotiation process between the Senate and House members who hammered out the agreement that became the eventual WRDA 2022.
Making permanent the 65%-35% cost share for inland waterway projects was “essentially the compromise that the House and the Senate came up with in their negotiation,” Sevier says. Despite not getting all it wanted on this point, ASCE views the now permanent nature of the cost share as a beneficial outcome. “That is absolutely a positive step to support future construction,” she notes.
In certain areas, WRDA 2022 instructs the Corps to focus more on increasing the resilience of water resources infrastructure. For example, the legislation includes a “Sense of Congress” statement advising the Corps on how to proceed when scoping and funding post-disaster repairs. In such situations, the Corps should, to the maximum extent practicable, repair assets to project design levels or, “if the original project design is outdated, to a higher level than the project design level,” according to the legislation.
ASCE supports such an approach, Sevier says. “That's something that we have been strong advocates for, making sure that we truly are building back better after a storm,” she notes.
In other provisions, WRDA 2022 directs the Corps to conduct a “national assessment of carrying out managed aquifer recharge projects to address drought, water resiliency, and aquifer depletion at authorized water resources development projects,” according to the bill.
Separately, the bill charges the Corps with studying the effectiveness of measures to sustain operations at reservoirs throughout much of the American West “in response to changing hydrological and climatic conditions,” the legislation states. In addition, the study is to evaluate methods for mitigating the risk of drought or floods, increasing water supply, or restoring aquatic ecosystems.