Presidential Memo to Boost Western Water Projects—Can it Succeed?

Posted on November 1, 2018 by Rick Glick

On October 19, President Trump issued a “Memorandum Promoting the Reliable Supply and Delivery of Water in the West.”  The Memorandum calls for streamlining federal water infrastructure development and operations, apparently by skirting environmental and other administrative processes.  As previously noted here, the Administration is intent on weakening the laws controlling federal water projects, but that cannot be accomplished by executive fiat alone.

At the core of the Memorandum is a directive to the Secretaries of the Interior and Commerce to designate, within 30 days, “one official to coordinate the agencies’ [Endangered Species Act (ESA)] and [National Environmental Policy Act (NEPA)] compliance responsibilities” and to “develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law.” 

This directive evinces a misapprehension of the legal framework, and continues a failed approach to regulatory change by shortcutting federal law.

First, Cabinet departments are not monolithic entities; they are made up of multiple sub-agencies, each with its own statutory guidelines.  Among others, Interior includes the Bureau of Reclamation, which builds and operates the water projects, and the U.S. Fish and Wildlife Service, which has responsibility for resident fish and terrestrial species.  BOR is the lead agency for NEPA, while the FWS is a reviewing agency of BOR’s work, and serves an independent consulting role under the ESA.  The only role of Commerce is through NOAA Fisheries, an agency within Commerce with responsibility for anadromous fish and marine mammals. 

While the agencies can and do coordinate to a certain extent, they have discrete legal functions and responsibilities.  A single officer to coordinate these disparate activities seems impracticable.

Second, the Administration’s overarching approach to loosening environmental rules is to rescind, suspend or delay implementation of environmental regulations that it believes impede the economy.  However, time and again the courts have found such actions to violate the Administrative Procedures Act or other statutes.  See, for example, the decision of a federal judge in South Carolina earlier this year invalidating “suspension” of the Waters of the U. S. (WOTUS) rule, or the D. C. Circuit’s rejection of extending the effective date of the Chemical Disaster Rule.  Implementation of the Memorandum is likely to meet the same fate.

Bringing efficiency to a convoluted, expensive and protracted process is a laudable goal, but one that has eluded previous administrations.  The problem is that the APA and the environmental protection laws are not designed for efficiency, but to make sure that the government has considered the potential impacts of its actions before implementation.  Without an act of Congress, efficiency gains will be at the margin.

REP. BLUMENAUER INTRODUCES WATER INFRASTRUCTURE BILL—THERE’S A GROWNUP IN THE HOUSE

Posted on August 6, 2012 by Rick Glick

On August 1, Oregon Congressman Earl Blumenauer introduced the Water Protection and Reinvestment Act (HR 6249) to address the nation’s aging water infrastructure.  The bill would use excise taxes targeted at industries that are dependent upon and impact safe and reliable water to reinvigorate the Clean Water State Revolving Loan Fund (CWSRF).  The CWSRF awards grants to states to capitalize loans to publicly owned treatment works in accordance with the Clean Water Act.  Under the bill, the funds would be available for “green infrastructure” and water efficiency initiatives as well. 

Initial funding sources identified in the bill include a 3 cent per container excise tax on water-based beverages, a 3% excise tax on items disposed of in wastewater, such as toothpaste, cosmetics, toilet paper and cooking oil and a 0.5% excise tax on pharmaceutical products.  The Congressional Budget Office is directed to identify additional funding sources.

The need for action is real as our water infrastructure has been badly neglected and underfunded over the last couple of decades.   As the congressman’s bill summary indicates, the American Society of Civil Engineers said that “if current trends persist, by 2020, unreliable infrastructure will cost businesses $147 billion and households $59 billion.” 

But it’s hard to see the bill getting anywhere in the current political environment, especially in an election year.  Although such an infusion of resources would certainly create a lot of jobs, and although the bill is presented as “deficit-neutral”, House Republicans would almost certainly paint it as just another Democrat tax and spend bill.  Too bad.  Rep. Blumenauer has consistently been one of the few grownups in the Congress focused on the basic underpinnings of any successful economy—transportation and water systems that work.