The process and practice of enacting legislation is way above my pay grade. But FWIW, this post outlines some ideas about how various aspects of fixing WIFIA’s FCRA issue might fit into the legislative calendar.

First, I’ve read in the political press that things might progress like this:

• A continuing resolution on or about November 17th. In the context of geopolitical developments, I’m guessing that there’ll be extra effort to avoid a shutdown.

• An omnibus funding bill at some point in the next few months. I’ve read there’s some resistance to a last-minute, must-pass “Christmas omnibus” and that the CR timeframe should extend to January/February 2024. It’s worth mentioning that the Congressional Directive for the 2020 WIFIA Criteria was dropped into such a Christmas omnibus bill in 2019.

• The Water Resources Development Act of 2022 was actually signed into law in December 2022, which was three months into federal FY 2023. I guess that’s not unusual, and WRDAs get enacted well into their biennial year. That’s consistent with what I’ve read for WRDA 2024: Development in late spring 2024 and finalized in the summer as a somewhat normal schedule.

Second, with respect to the various ways to fix the FCRA issue:

• The ways are not mutually exclusive and can be pursued in parallel.

• I presume a Congressional Directive to revise the current Criteria, like FCRA Plan C: Directive to Update the Criteria, could be added to the next omnibus. My impression is that adding such a technical, costless and commonsense directive shouldn’t be a big deal. Well, in theory anyway.

• Realistically, a WIFIA FCRA amendment belongs in a WRDA since it’s primarily a USACE/CWIFP issue. That means earliest timeframe of mid-2024, which is after the 90 or 120-day period for developing revised Criteria in a new Congressional Directive.

Finally, a possible sequence:

• Although I originally thought it to be “Plan C”, I now think a new Congressional Directive might be the correct near-term objective, if not necessarily the final one. In many ways, revised Criteria based on FCRA law and 1967 Report principles that are straightforward to understand and use would be the most efficient resolution. It would also make a FCRA amendment unnecessary. The question is whether OMB will cooperate, either in new-found good faith or simply because they fear embarrassing alternatives. Might as well find out as soon as possible, no?

• Even if there is a new Congressional Directive, development of a WIFIA FCRA amendment should continue. The revised Criteria might be unacceptable if OMB can jam down some result e.g., to comply with a deadline. I don’t know their abilities here, but I’m guessing they have a lot of bureaucratic power in general. The possibility of an amendment will keep this power in check to a certain extent.

• While the ‘Plan A’ current amendment in HR 5664 and HR 2671 can remain the public position in the meantime, I think something like the New Approach should be actual path for development and possible WRDA 2024 inclusion, for three reasons. First, the New Approach includes additional criteria that are demonstrably based on FCRA law and principles, in particular one that will dovetail to CBO’s focus on the use of federal sovereign power. As such, this approach inevitably involves a narrative on law and principles, which very much highlights the weakness and rabbit-hole quality of the current Criteria, something OMB would likely wish to avoid being public. Second, the New Approach amendment language is very different than the previously seen & scored Plan A version. This allows CBO to provide a new scoring analysis whether the current Criteria are revised or not. Finally, and perhaps most importantly, New Approach concepts can serve as common ground between CWIFP stakeholders and OMB, and as such the basis for revised Criteria.