Underground Construction - May 2021 - 10

WASHINGTONWATCH

Stephen Barlas | Washington, D.C. Editor

Infrastructure Package Slowly Emerging
A big infrastructure package is a long way
from getting passed by Congress, but the
good news is that if and when it does
pass, it will include ostensibly increased
funding for both water projects and
broadband deployment.
The American Jobs Plan President Biden
announced on March 31, resembles, not
surprisingly, a bill Democrats in the House
are preparing, especially in the portions
devoted to drinking water and broadband
investments. Democrats prioritize drinking
water projects, especially lead replacement
and particularly in underserved areas; sewer
funding appears to be absent. A bipartisan
bill passed by the Senate Environment
and Public Works Committee does include
funding for sewer projects, in addition to
drinking water and broadband.
The Senate's Drinking Water and
Wastewater Infrastructure Act of 2021
(DWWIA 2021) authorizes more than $35
billion for water resource development
projects across the country, including
$15.5 billion over five years for each of
the Drinking Water and Clean Water State
Revolving Funds (SRFs).
It does up funding for the CWSRF, while
the House bill and Biden plan do not, that
increase was deemed insufficient by Kishia
Powell, vice president of the National
Association of Clean Water Agencies
(NACWA). " While the Senate bill does not
provide the full levels of funding needed to
address the growing clean water infrastructure needs across the country, it serves as
a good starting point, " she told the Senate
Environment and Public Works Committee.
However, the ultimate availability of
those funds and others allocated in the
Senate bill, for smaller U.S. Departments
of Agriculture and Commerce water utility
funds, is dependent on passage of separate
appropriations bills. Their contours may -
or may not - be shaped by the funding from
Bidens' proposed $2 trillion American Jobs
Plan, which depends on large increases in
corporate taxes.
The House bill backed exclusively by
Democrats - making it less likely to be
10

MAY 2021 | UCONonline.com

accepted by the Senate - also includes
water and broadband spending, and at
much higher levels than the Senate bill.
The House Democrats' LIFT America Act
includes provisions to extend and increase
authorizations of $26.3 billion for essential
drinking water programs.
These include the Safe Drinking Water
State Revolving Loan Fund, Indian
Reservation Drinking Water Program,
School and Child Care Program Lead
Testing grants, Lead Drinking Fountain
Replacement, Community Water System
Risk and Resilience grants, and Public
Water System Supervision grants to states.
An emphasis in both the House and Senate
drinking water and sewer (only in the Senate)
is providing much higher levels of subsidies
for state loans via their SRF programs. This
is seen as a way of helping underserved and
marginalized communities, typically black
and brown communities. In the Senate bill,
for example, of the $35 billion, more than 40
percent can be directly used to benefit small,
disadvantaged, rural and tribal communities
through additional subsidization from the
SRFs or direct grant programs.
Shellie R. Chard, past-president,
Association of State Drinking Water
Administrators (ASDWA), told the Senate
EPW committee, " Although it is important
for states to have the ability to provide
subsidy for disadvantaged communities or
to use subsidies to encourage innovative or
necessary projects, using large percentages
of the capitalization grants for subsidy can
impede program growth and impact the
ability to borrow. "
The Biden plan, House and Senate bills all
include substantial funding for broadband
deployment, with an emphasis on rural
areas. The LIFT America Act would invest
almost $94 billion to expand access to broadband internet to underserved communities.

New Policy Formalizes
FERC Use of GHG Emissions
A Republican commissioner at the Federal
Energy Regulatory Commission (FERC)
took the unusual step of advising interstate

pipeline and liquid natural gas (LNG)
companies to get ready to have pending
applications for construction upended by
the order that FERC issued on March 23,
2021, by a vote of 3-2. In that order FERC
approved a 2020 application by Northern
Natural Gas to abandon an old, leaky pipeline and replace it with approximately 87.3
miles of various diameter pipelines.
FERC's order was unexceptional for the
most part - including approval of the safer
replacement - except where the agency
said, for the first time, it had considered the
greenhouse gas emissions the new construction would emit. FERC explained that
a proposed pipeline's reasonably foreseeable
greenhouse gas emissions are relevant to the
commission's determination as to whether
a project meets the Natural Gas Act's " public
convenience and necessity " requirement.
In the past, when considering new
pipeline applications, the commission had
concluded that it was unable to assess the
significance of a project's GHG emissions
or those emissions' contribution to climate
change. The order then continued, stating,
" Upon reconsideration, we no longer believe
that to be the case. Accordingly, in the following paragraphs, we assess the significance
of the project's GHG emissions and their
contribution to climate change. Based on the
record in this proceeding, we conclude that
those impacts are not significant. "
" FERC's order represents a sea change
regarding its approach to GHG emissions
and its obligations under NEPA, " said
Jamie Auslander, co-chair of Beveridge &
Diamond's Natural Resources and Project
Development Practice Group. NEPA stands
for the National Environmental Policy Act.
Even though FERC greenlighted
the Northern project, a decision which
Commissioner Robert Danly agreed with,
he dissented with the change in FERC policy
with regard to GHG emission considerations.
His dissent sputtered with indignation,
saying the order " represents regulatory malfeasance at its most arbitrary and capricious. "
His objections centered on his view that the

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Underground Construction - May 2021

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