Yesterday, HR 8127 was essentially reintroduced in this Congress as HR 5664. There are a few minor changes, but the Section 7 FCRA amendment language remains the same. As discussed in previous posts, I have some reservations about this approach, not the least of which is that CBO will presumably apply the same scoring to the same language that they saw before. But obviously I don’t know all the political dynamics here and they, not technical FCRA matters, that will determine the outcome. So, the original approach remains effectively Plan A.
If it doesn’t work, perhaps the New Approach outlined recently can serve as Plan B.
But what if no FCRA amendment in any form is included in legislation that’s likely to be enacted this year? Again, I’m in no position to predict the odds of this political outcome, but I’d guess it’s far from negligible. Game over for another year?
Perhaps not necessarily. If things look like they’re going south for Plan A and B amendments, here’s a Plan C that doesn’t even require an amendment, just another Congressional directive. The core of the FCRA non-federal issue is not FCRA or WIFIA law, but the way the current Criteria require it to be interpreted. Yes, the right statutory amendment would settle the issue for good, but in the meantime it’s important to note that the current Criteria aren’t themselves statutory (as much as they have pretenses to be — looking at you, footnote 4) and what one Congressional Directive can create, another presumably can modify.
There’s nothing wrong with FCRA criteria per se, even if they don’t appear to be necessary in a world of honest and intelligent loan applicants. It’s just that the current Criteria are an unholy mess. With suitable revisions, even while leaving in place a lot of the blather about ‘federal projects’ for appearances’ sake, FCRA Criteria v2.0 could include a clear path to WIFIA eligibility for non-federal cost share assets in a federally involved project. The substantive criteria could be essentially the same as proposed in Plan A or B amendments, perhaps artfully camouflaged if necessary.
The new directive is required to re-open the ring for the correct parties — this time, CWIFP as well as OMB and WIFIA — and to precisely clarify the objective for the updates. Otherwise, it can look a lot like the original Directive. Perhaps something like this, changes in bold:
Provided further, That the Administrator, together with the Secretary of the Army and the Director of the Office of Management and Budget,, shall jointly develop updated criteria for Section 3908 (b)(8) eligibility for direct loans and loan guarantees authorized by the Water Infrastructure Finance and Innovation Act of 2014 that limit Federal credit participation in financing a non-Federal cost share in a project that has federal involvement consistent with the requirements for the budgetary treatment provided for in section 504 of the Federal Credit Reform Act of 1990 and based on all relevant recommendations contained in the 1967 Report of the President’s Commission on Budget Concepts; and the Administrator, the Director, and the Secretary, shall, not later than [90] days after the date of enactment of this Act, publish such criteria in the Federal Register.
As with the original Directive, presumably a new directive can be added into the WIFIA “Program Account” section of FY2024’s omnibus spending bill right up to the last minute, right?
Of course, even if the ring is re-opened with the right parties and clear rules, there’ll still be fight. But I’m pretty confident of a positive outcome in that forum. The Pro-Eligibility side will be prepared this time with clear and correct FCRA law and principles, while the Pro-Criteria side will be defending a baseless and embarrassing mess. And if there’s no agreement after 90 days, well, then it’s back to the amendment plan. As described at the end of the New Approach post, the Pro-Criteria side can do it the easy way or the hard way, but they’re bound to lose in the end.