Water Infrastructure

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"In Texas, whiskey is for drinkin' and water is for fightin'," or so the axiom goes. With the recent floods in Central Texas and the City of Austin's first-ever, multi-day boil water notice, we have all been reminded of the importance of water. Crucial to industry (both large and small), the environment, and our health, it is not an overstatement to say that water truly is a matter of life and death. No wonder we fight about it.

That's why I was surprised that President's Trump's Bill signing on Tuesday, October 23rd received such little attention in the media. Passed in the United States Senate by a vote of 99 to 1, S-3021 is a refreshing respite from the partisan war that has ravaged our country throughout Trump's presidency.

Aptly named "America's Water Infrastructure Act of 2018," the law is a testimony to bipartisan cooperation.

There's a lot in this law for left-leaning activists to like:

  1. It authorizes billions of dollars for an Environmental Protection Agency fund that will provide money to improve drinking water infrastructure at the state level
  2. It addresses the concerns of environmental justice activists by requiring each regional EPA office to designate at least one employee to serve as the point of contact for minority, tribal, and low-income communities
  3. It requires the government to prioritize low-income communities for lead testing programs.

For those on the opposite side of the aisle, the Act includes measures aimed at government accountability and fiscal responsibility. For example, the law instructs the Secretary of the Army, in his capacity as leader of the Army Corps of Engineers, to identify $4,000,000,000 (that's $4 billion, with a b) in water resources development projects that have been authorized by Congress but are no longer viable for construction. This de-authorization will free up funds to be authorized for development of water resources that do have local support.

In a nod to government transparency, the Act also requires the federal government to keep a balance sheet on all projects that include cost-sharing between the federal government and non-federal interests, with the express requirement that the federal government make those balance sheets available for review by the non-federal interests.

Of particular interest to Texans, the law authorizes the Secretary to conduct feasibility studies for the Trinity River and its tributaries and for the West Cell levee near Irvine. These studies will make recommendations for water resources development and conservation. Further, Section 1228 instructs the Secretary "to expedite the completion of studies for flood damage reduction, hurricane and storm damage reduction, and ecosystem restoration in the coastal areas of Texas…." Finally, the Act puts a time limit on the implementation of a water supply contract at Wright Patman Lake, Texas, attempting to speed up another infrastructure project that could safeguard our state's water supply.

In addition to the above, the Act authorizes over $13 million for the Galveston Harbor Channel Extension Project and over $3 billion for hurricane and storm damage risk reduction project from Sabine Pass to Galveston Bay. The Act includes over $200 million in ecosystem restoration near the City of Brownsville.

Where drinking water is concerned, the Act amends certain sections of the Safe Drinking Water Act, provides grant money for local education agencies to replace aging drinking water fountains, and creates the "Innovative Water Technology Grant Program," a program designed to encourage public water systems to compete for grant money by developing technologies that will safeguard our water supplies.

There's an understanding among water professionals in the State of Texas: water planning often receives less attention than water responses. In other words, when there is a crisis like the one we in Austin are experiencing today, we make water a priority, but when the rivers run smoothly, other issues take center stage.

The President's bill signing is part of a regular process of reviewing water infrastructure (the last bill, called the Water Resources Development Act, was passed in 2016), but the fact that it's not new does not mean it's not newsworthy. As the boil water notice and emergency rationing illustrates, planning for water resources development is crucial at all levels of government before we find ourselves in a crisis.

As you return to your old habit of turning on the faucet and enjoying a reliable water supply, remember not to take our water infrastructure for granted. Whether for environmental, industrial, or health reasons — or better yet all three — we need to continue to prioritize water infrastructure development so that the river can, indeed, run through it.

Jenny Roan Forgey is an associate at The Jones Law Firm. The boutique firm represents investor-owned water utilities and service companies in the utility service sector.

DISCLAIMER: The foregoing information is not legal advice and is general in nature and not applicable to all situations. The reader should not rely on these general statements and should consult with knowledgeable persons before taking any actions.

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