COLUMN
INLAND WATERWAYS
By James Kearns, Special Counsel, Jones Walker LLP
With developments in the current health crisis almost entirely consuming nearly all news reporting, one could be forgiven for thinking that the members of Congress are thinking about and working on little else, and that even if they were, the divisive partisanship of recent years would doom the prospects of much else getting done. Happily, that is not the case Kearns for the nation’s inland waterways. Both houses of Congress are diligently working on maintaining the momentum of passing a Water Resources and Development Act (WRDA) every two years, trying not to break stride after passing such legislation in 2014, 2016, and 2018 with large bipartisan majorities. The work on a Water Resources and Development Act for 2020 has provided yet another occasion to consider a fundamental and recurring question: Who are the true beneďŹ ciaries of the nation’s inland waterways? This question is reected in several of the things that WRDA 2020 is being asked to do, and to avoid. At the top of the river industry’s First-Do-No-Harm List is avoiding lockage fees or other forms of user fees that would be the functional equivalent of toll booths at the locks and dams throughout the river system. For the past several years, in both the current administration and the previous one, the President’s budget has included a proposal for such fees in one form or another. The concept has a superďŹ cial appeal: why shouldn’t barge tows pay tolls to help cover the cost of maintaining the waterways that they use just as trucks and cars pay tolls to help cover the cost of maintaining the highways on which we all drive? The river navigation industry has consistently—and thus far successfully—resisted these repeated proposals primarily with
two arguments. First, the industry will point out that it does, in fact, contribute to the cost of maintaining our nation’s waterways infrastructure through the tax that is imposed on the fuel that is used by towboats on the rivers and that is paid into the Inland Waterways Trust Fund (IWTF), to support new and replacement construction and major rehabilitation of the locks and dams throughout the river system. The industry will further call attention to the fact that several years ago that fuel tax was increased by 45% at the river navigation industry’s own request. The second major argument made by the navigation industry is that, unlike the roads and highways on which people drive, the rivers provide many beneďŹ ts in addition to transporting cargo and passengers. The commercial users are the only beneďŹ ciaries of the inland waterways system who pay a user fee in the form of the fuel tax. Those beneďŹ ciaries who receive ood control, water supply, recreational, and similar beneďŹ ts do not pay a fuel tax or fee to contribute to the construction or maintenance of the system providing these beneďŹ ts. Each time that the process gets underway for creating the next WRDA, the river navigation industry goes on high alert to make sure that some form of user toll is not included—or better yet, is expressly prohibited—in the legislation that is ďŹ nally enacted. “We are not the only ones who beneďŹ t from the inland waterways system,â€? the industry says. “Let the other beneďŹ ciaries pay their fair share.â€? But how can that “fair shareâ€? be quantiďŹ ed in dollar terms? Extensive and detailed studies have been undertaken in an attempt to do that, a prominent example of which is “Toward a Full Accounting of the BeneďŹ ciaries of Navigable Waterways,â€? prepared by Dr. Larry G. Bray, C. Michael Murphree, and Chrisman A. Dager of the Center for Transportation Research at the University of Tennessee, available on the website of the
Š Paul D. Lemke / Adobe Stock
22 MN
May 2020
