Yesterday, President Obama signed into law the Water Resources Reform Development Act (“WRRDA”), a traditional reauthorization bill that gives direction and guidance to the U.S. Army Corps of Engineers (“Corps of Engineers”) on varying aspects of the Corps of Engineers wide ranging programs. Notably, the legislation will extend and expand the ability of the Corps of Engineers to accept funds contributed by non-Federal public entities to expedite the evaluation of permits under the jurisdiction of the Department of the Army. The expansion of this program follows a larger trend in which Congress has sought to augment the budgets of Federal Agencies through third party funding arrangements that can add or replace scarce appropriations.
Although Congress had previously authorized the Corps of Engineers to receive funds to assist in the administration of its regulatory program, including the processing of section 404 permits, the House Transportation and Infrastructure Committee had found that this authority had not been implemented throughout all Corps of Engineers District offices. Notably, the conference managers illustrated the need for the legislation by explaining (in Conference Report 113-449) that more than $220 billion in annual economic investment is directly related to activities associated with the Corps of Engineers regulatory program, specifically, decisions reached under Section 404 of the Clean Water Act.
The re-authorization of the authority for the Corps of Engineers to receive funds has been expanded to allow a Public Utility Company or a Natural Gas Company (as defined in Public Utility Holding Company Act of 2005) to provide funding to the Corps of Engineers to assist with the regulatory program. This authority will expire, however, within seven years of enactment. Nonetheless, the ability of Public Utility Company or Natural Gas Company to provide direct funding will assist the Corps of Engineers where budget shortfalls have led to the delay in processing Section 404 permits.
While the ability to contribute funds will expedite the Corps of Engineers overall processing efforts, the Secretary of the Army will be required to ensure that the contribution of funds does not lead to a prioritization of permit processing. An entity that chooses not to contribute funding for regulatory processing should not be adversely affected with regard to the timeline for consideration of its application.
Congress also directed the Corps to implement measures to provide transparency including the development of a standard decision document. In particular, the Corps will be required to disclose all final permit decisions that are made using funds made available to this authority. It is anticipated that these documents will be developed by the Secretary in coming weeks in order to implement this newly expanded program.