Legislative Updates

WRDA Clears Congress, Gets Veto, Appeal Filed

President Bush was expected to veto the Water Resources Development Act (WRDA) of 2007 as soon as it reached the White House. In a draft policy statement leaked after the bill passed the Congress, the president calls the bill unsound because it “fails to exercise the fiscal discipline that is required to constrain federal spending.”

It has been almost seven years since Congress last authorized federal water resources projects. The Congressional Budget Office (CBO) estimates that WRDA will cost $23.2 billion over the next 15 years. The House approved the bill by a 381-40 margin in early August, while the Senate voted 81-12 to pass it on September 24, 2007. It takes at least 291 votes in the House to override a veto and 67 in the Senate.

ASCE sent a letter to the White House on September 28 saying a veto of WRDA “would be unwise public policy.” ASCE supported enactment of the bill. “A veto based on narrow budget priorities would neglect the overarching national interest in maintaining economically significant infrastructure investments and vital natural resources,” ASCE said. The ASCE letter is found at
http://www.asce.org/pressroom/publicpolicy/inside_fedletters.cfm.

Federal Judge Restricts Corps-EPA Regulation of Dredged Material

February, 2, 2007

A federal district judge in Washington, D.C., has struck down a regulation issued by the U.S. Army Corps of Engineers and the Environmental Protection Agency that prohibited minor discharges of dredged material into wetlands and other waters of the United States.

The Corps and EPA adopted a regulation in 2001 that banned the discharge of "incidental fallback" during dredging operations under a permit issued under the Clean Water Act. The 2001 regulation replaced a 1993 regulation that itself was voided by federal courts as being beyond the jurisdiction of the Act. The new rule was an attempt by the corps and EPA to refine their definition of what constituted incidental fallback following the courts' decisions to void the "Tulloch rule."

The 2001 regulation defined "incidental fallback" partly in terms of the volume of material that may not be "discharged" during its removal from U.S. waters. The rule described incidental fallback as having "a small volume." But the test is whether the dredged material returns to the excavation area at some point after it is moved away from the removal site, not how much accidentally falls back during the actual removal, said Judge James Robertson this week.

"Conceivably, the operator of a shovel removing 500 tons of dirt could accidentally drop all 500 tons back to the earth without redepositing [a pollutant]", the judge ruled. "In determining whether fallback is incidental--i.e., not an addition--the volume of material being handled is irrelevant. The difference between incidental fallback and redeposit is better understood in terms of . . . the time the material is held before being dropped to earth and . . . the distance between the place where the material is collected and the place where it is dropped."

The decision represents a victory for homebuilders, who have been fighting the Corps and EPA over the regulation of incidental fallback since the Clinton administration in 1993 first prohibited the deliberate or accidental release of even very small amounts of material into the water during normal dredging operations.

President Bush’s $2.9 trillion budget proposal released on Monday shows a balanced budget by 2012 while making his tax cuts permanent. Under the plan, a $239 billion fiscal 2008 deficit would quickly shrink and become a $61 billion surplus in fiscal 2012.

This report is written by the ASCE Government Relations Department staff. If you have any questions or comments about items in this report please contact : govwash@asce.org.

A Civil Engineering Review of the President’s FY2008 Budget Request

February 9, 2007

President's Budget Shows Spending Cuts for Environmental Protection Agency
The fiscal year 2008 budget reduces spending for the Environmental Protection Agency, with the bulk of the proposed cuts directed toward the popular Clean Water Act wastewater infrastructure program. EPA would receive $7.1 billion, a $500 million cut compared with fiscal 2006 funding, and an $800 million reduction below fiscal 2005 funding.

The Clean Water State Revolving Loan Fund would get $688 million in fiscal 2008, a drop of about $412 million from the fiscal 2007 spending plan pending in the Senate. The Bush proposal includes $842 million for the Drinking Water State Revolving Loan Fund, which compares with $838 million expected for fiscal 2007.

Superfund spending also would be reduced to a proposed level of $1.24 billion in FY 2008, down from the $1.25 billion from the pending FY 2007 spending proposal.

Administration Seeks New Fees for Inland Waterway Infrastructure
The fiscal year 2008 budget proposes new user fees to finance improvements to the nation’s inland waterways, but some believe the extra expense would cause shippers to shift their cargo to the nation’s already clogged highway and rail systems.

The user-fee proposal is part of the Army Corps of Engineers’ fiscal 2008 budget request. Commercial barges that travel on inland waterways currently pay a 20-cent-per -gallon diesel fuel tax into the Inland Waterways Trust Fund, but Corps officials say revenue has not kept up with demand for waterways improvement.

“In a very few years, the trust fund will be exhausted,” said John Paul Woodley Jr., assistant secretary of the Army for civil works.

Details on the structure of the new fees are not expected until this spring. But Rep. James Oberstar (D-MN), chairman of the House Transportation and Infrastructure Committee, said he fears the new fees would create a “further disincentive to [using] the nation’s rivers to move cargo.”

Bush’s budget would provide $4.8 billion for the Army Corps’ civil works division, about nine percent less than the $5.3 billion funding in fiscal year 2006, the last year Congress enacted a full budget for the Corps. The budget for FY 2007 is contained in a trimmed down continuing resolution that calls for spending at the FY 2006 level.

FY 2008 Budget Proposal Falls Short of Fully Funding SAFETEA-LU
The Administration is proposing $39.585 billion for the core federal highway program—a $500 million increase over projected FY 2007 investment—and reports Highway Trust Fund Highway Account revenues have exceeded projections by $631 million. However, in a break from previous years, the Administration is proposing to cancel the $631 million upward adjustment of FY 2008 highway investment these additional revenues require under SAFETEA-LU’s funding guarantees due to concerns about the trust fund’s solvency. This proposal would represent the first explicit violation of the Highway Trust Fund’s investment guarantees since they were enacted in 1998.

Also proposed in the budget is $175 million for the “National Strategy to Reduce Congestion” which was proposed last year. Of note, none of the “innovative” criteria involve construction so this funding would not add to the level of highway investment. In announcing the program last year, the Department of Transportation stated “the Department would provide qualified states and metropolitan areas, known as ‘Urban Partners,’ with a combination of grants, loans, credit support, regulatory relief and technical assistance to operationally test advanced technologies, such as ramp metering and real-time travel information systems, designed to reduce traffic congestion. Those strategies include implementation of variable rush hour pricing, otherwise known as “congestion pricing”; expanded transit services for commuters; employer commitments to expand telecommuting and/or flexible scheduling options for employees; and an expanded focus on reducing the impact of incidents, like crashes, on causing traffic tie ups.

The measure also calls for increasing federal transit investment by $450 million to $9.4 billion. This amount, however, is $300 million below the FY 2008 funding level required by SAFETEA-LU and also would be a major break from the transportation funding guarantees. The decrease in funding is in the New and Small Starts program, which are financed out of general funds, so this reduction helps reduce the federal budget deficit.

Aviation Infrastructure Spending Slashed in FY 2008
The Administration’s budget request recommends a $765 million, or 22 percent, reduction in federal airport construction investment from the current level of $3.52 billion to $2.75 billion in FY 2008.

Additionally, the Administration’s budget officially starts the 2007 federal aviation program reauthorization debate by proposing to completely overhaul the current aviation program financing mechanism. According to the budget proposal, the plan’s aim is to create a direct relationship between benefits aviation users derive and the financial contributions they make to sustain the system.

Specifically, the proposal would institute new “user fees,” as opposed to current excise taxes, to fund air traffic control operations. The user fees would be imposed by the Federal Aviation Administration (FAA) on commercial airlines to generate revenues necessary to cover these operations. It appears the Administration’s proposal would replace the existing ticket tax with these new user fees. The proposal would require general aviation users of the system, travel unrelated to commercial or military use, to continue to pay a fuels tax, which would be “calibrated based on the costs that the users impose on the system,” which implies the tax could be increased if it is determined this sector of the aviation community was not paying its fair share.

The FAA would also be allowed to impose a user fee on all travel in “the Nation’s most congested airspace.” Much of the focus of the Administration’s aviation proposal is on improving system operations and efficiency and little is said about expanding system capacity.

The budget, however, does state that under the new financing proposal the airport infrastructure investment through the Airport Improvement Program (AIP) would continue to be funded through a fuels tax. As stated above, the budget proposes an FY 2008 AIP investment of $2.75 billion— $765 million below the FY 2007 level. Previously, the Bush Administration also proposed a $765 million AIP investment cut in its FY 2007 budget, which Congress rejected. The Administration’s aviation program reauthorization proposal has long been anticipated and it will certainly be the cornerstone of much debate. It is imperative these discussions include an appropriate focus on providing enough funding to meet the clearly documented airport infrastructure capacity enhancements.

American Competitiveness Agenda (ACI)
The President’s FY 2008 budget request continues the Administration’s emphasis on U.S. competitiveness by once again highlighting the American Competitiveness Initiative (ACI). The Initiative is made up of a number of targeted increases, including those listed below at various agencies including the National Science Foundation, the National Institute of Standards and Technology and others. Details on the current status of the ACI and specific proposals for FY 2008 ACI budget priorities are available on the White House Office of Science and Technology Policy (OSTP) website: http://www.ostp.gov/

National Science Foundation – The budget request for FY 2008 is $6.429 billion, a 7.8% increase over the $5.96 billion contained in the FY 2007 appropriations continuing resolution that is currently pending in the Senate. If enacted, the amount would fund an additional 500 research grants. The Administration sets NSF’s priorities for FY 2008 as: innovation research; preparing the workforce for the 21st-century; transformational facilities and infrastructure; international polar year leadership; and, stewardship of the nation’s research enterprise. Complete details of the NSF budget request is available at: http://www.nsf.gov/about/budget/fy2008/index.jsp

National Institute of Standards and Technology – The budget request is $640.7 million, a 21% increase over the current FY 2007 appropriations plan. Included in this amount is $535 million for the core laboratory program which includes codes and standards work as well as building and infrastructure related research. This is an increase of $104 million over FY 2007 after removing earmarks.

Among the NIST highlights of interest to ASCE:

Disaster Resilient Structures and Communities: ($4 million) – In its press release NIST notes that the program was based on a 2005 National Institute of Building Sciences study found that a dollar spent on hazard mitigation saves society an average of $4, with positive benefit-cost ratios for all hazard types studied. The release goes on to say that disaster resilience of our physical infrastructure and communities today is determined in large measure by the building codes standards and practices used when they were built. With few exceptions these legacy codes, standards, and practices—which have evolved over several decades—are oversimplified and inconsistent with current risk assessments. As construction and rebuilding costs continue to rise, there is increasing recognition of the need to move from response and recovery to proactively identifying and mitigating hazards that pose the greatest threats.

The program is described by NIST as working to develop:

• Standard methods to predict losses, evaluate disaster resilience, and estimate cost-to-benefit of risk management strategies at the community and regional scales as opposed to the individual building scale;

• Decision support tools to modernize codes, standards, and practices consistent with the risk;

• A validated “computational wind tunnel” for predicting extreme wind effects on structures; and

• Risk-based storm surge maps for the design of structures in coastal regions and an improved hurricane intensity classification scale.

National Earthquake Hazards Reduction Program (NEHRP) (+$3.25 million) – for the first time ever, the budget request includes a line item for NEHRP. In 2005, NIST took over leadership responsibilities from the Federal Emergency Management Agency for NEHRP but has not received any appropriations to carry out its role. In its press release, NIST noted that at the proposed funding level, NIST will:

• Identify implementation gaps between basic research results and design guidance and national model building code provisions;

• Develop rational cost-effective, consensus-based seismic design and analysis procedures for use in national model building codes;

• Design guidelines for the testing and design of major structural systems;

• Characterize fully the seismic capacities of typical older building structural components and systems as they are built; and

• Develop structural performance criteria, analytical models, and cost-effective rehabilitation techniques for existing buildings.

Complete details on the NIST budget is available at:
http://www.nist.gov/public_affairs/releases/budget_2008.htm

U.S. Geological Survey
The President has proposed a budget of $975 million for the U.S. Geological Survey (USGS) for FY 2008. The FY 2008 budget, which continues to focus USGS capabilities on the highest priority research needs, reflects $16.3 million in program increases and a $24 million increase in fixed costs, which are offset by $10.1 million in reductions to lower priority programs. Among the areas of interest to ASCE is a $1.6 million increase to the geographic hazards budget, a $4.66 million increase to geologic resources assessments, $8.1 million increase for water resource investigations including a $2.1 million increase to the National Streamflow Information Program. Complete details of the USGS budget is available at: http://www.usgs.gov/budget/2008/2008index.asp