This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through February 22, 2008, provides information on the activities of the 110th Congress of interest to the nation’s publicly owned treatment works (POTWs).  For more detailed information regarding NACWA activities related to specific legislation, click on the web links in selected news items, or contact Byron DeLuke in NACWA’s Government Affairs Department at This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or 202/833-4655.

NACWA’s Bill Tracker provides a direct link to congressional websites where bill texts and summaries are posted.  You can find NACWA letters, statements, alerts, updates and related documents under Legislative in the Member Pipeline section of the NACWA website.

Appropriations & Funding

Proposed FY 2009 EPA Budget Slashes Funding for CWSRF to $555 Million

The Bush Administration released its fiscal year (FY) 2009 budget proposal for the U.S. Environmental Protection Agency (EPA) Feb. 4 that cut funding for the Clean Water State Revolving Fund (CWSRF) to $555 million, the lowest level in the program’s 20-year history and $134 million below the current year’s funding.  EPA’s total budget for FY 2009 would be $7.14 billion, down $460 million from FY 2008.  The administration attempted to justify the decline in CWSRF money by pointing out that it allows EPA to meet the capitalization target of $6.8 billion by 2011.  Overall, the proposal would represent a 20-percent cut in critical water infrastructure funding from the FY 2008 level of $687 million at a time when communities are looking for ways to address the growing funding gap of $300 – $500 billion over the next 20 years.  These continued cuts to the CWSRF further bolster NACWA’s argument for a federal recommitment to clean water in the form of a trust fund to provide on-budget, deficit-neutral, sustainable funding.

Congress not Satisfied, Looks to Restore Funding through SRF Reauthorization Bills
NACWA continues to aggressively advocate for more infrastructure funding as well as legislation in the Senate to reauthorize the CWSRF at $14 billion over four years, similar to the Water Quality Financing Act of 2007 (H.R. 720) passed by the House in March of 2007.  Congressional staff have expressed their frustration with the proposed FY 09 budget during meetings with NACWA and, on Feb. 7, members of the House Budget Committee asked Jim Nussle, the Director for the Office of Management and Budget to justify the low funding levels for vital programs included in the Administration’s budget request.  Similarly, Rep. James Oberstar (D-Minn), chair of the House Transportation and Infrastructure (T&I) Committee, said the proposal was not “fiscally responsible” because it underfunds the CWSRF.  Nussle said the cuts were necessary for the Administration to streamline existing programs and balance the budget.

NACWA will continue to work with key members of the Senate to introduce and pass companion legislation for H.R. 720.  NACWA also recognizes that this legislation represents only the first step toward securing additional funding for the nation’s clean water agencies.  Influential members of Congress are looking at innovative new ways to help fund critical water infrastructure.

Congressional Leaders Request GAO Study on Clean Water Trust Fund

Leaders of the House T&I Committee and a member of the House Ways and Means Committee requested that the Government Accountability Office (GAO) study potential revenue sources for a national clean water trust fund.  The request is similar to language that was included in the Water Quality Financing Act of 2007, H.R. 720, which also asked for a GAO study on viable revenue sources.  The letter was sent by T&I Committee Chairman Oberstar, T&I Water Resources and Environment Subcommittee Chairwoman Eddie Bernice Johnson (D-Tex.), and Earl Blumenauer (D-Ore.), member of the House Ways and Means Committee.  Significantly, they state in the letter that a dedicated funding source is critical to ensure communities can continue to fulfill their obligations to provide clean and safe water and that the decreasing federal investment in water infrastructure is untenable.

The T&I Committee issued a press release in which Oberstar indicated his intention to take up trust fund legislation in the next Congress.  Blumenauer echoed that call in recent meetings with NACWA, saying he plans to work from draft legislation drawn up by NACWA and the Water Infrastructure Network (WIN) in 2005. Blumenauer and Oberstar are seeking stakeholder input, including from NACWA, on a strategy for this trust fund legislation with the goal of introducing legislation in 2009.  NACWA has worked vigorously with staff on the House T&I Committee to ensure the letter to GAO was sent and is developing a draft legislative action plan to help lay the groundwork for legislation in 2009.

NACWA Shifts Farm Bill Reauthorization Focus to Conference Committee

With work completed in both the House and the Senate on legislation to reauthorize the 2002 Farm Bill, attention in 2008 has shifted to a conference committee where lawmakers are trying to hammer out a compromise between the two versions.  NACWA continues to work with representatives from other water sector organizations and conservation groups to ensure provisions remain in the final bill to establish the new Regional Water Enhancement Program (RWEP), which provides for cooperative agreements among the U.S. Department of Agriculture, agriculture producers, and other entities, including local governments, for projects designed to address water quality challenges on a watershed basis.

RWEP language is included in the Environmental Quality Incentives Program (EQIP) in the House version and sets explicit minimum funding levels of $60 million annually.  In the Senate bill, the RWEP provisions are part of the Partnerships and Cooperation section and are largely discretionary with no guarantee for funding.  NACWA signed on to a letter in January with other water sector groups, conservation organizations, and some farm groups urging support for RWEP and other conservation incentives programs.  The next several weeks will be critical to ensure these provisions are included.  The current Farm Bill expires March 15, and the Administration is putting a good deal of pressure on Congress to cut back spending on conservation and energy programs in the bill.  NACWA will continue to work with its partners to advocate for the inclusion of RWEP and other conservation provisions.

Climate Change

NACWA to Weigh in on Congressional Climate Change Initiatives

In December, the Senate Environment and Public Works (EPW) Committee reported global warming legislation to the full Senate, marking a significant step in the effort to curb greenhouse gas emissions.  The Climate Security Act of 2007 (S. 2191) , introduced by Sen. John Warner (R-Va) and Joseph Lieberman (D-Conn.), was reported out of committee with few amendments and likely will be considered by the full Senate this year.  The bill seeks to reduce current emissions by more than 15 percent by 2020 with additional reductions nearing 60 percent by 2050 through an economy-wide cap-and-trade program.  Publicly owned treatment works (POTWs) would not be regulated under the cap as they fall well below the greenhouse gas (GHG) emissions limit of 10,000 carbon equivalents per year.   Please refer to the December Legislative Update for a more details.

The current discourse on S. 2191 in the Senate revolves predominantly around air quality impacts and temperature.  NACWA and its fellow water sector organizations are working to convince Congress that climate change is fundamentally a water resource management issue – that will go far beyond changing temperatures and carry severe consequences for the nation’s water resources.  This is critical because S. 2191 does not currently recognize emerging adaptation concerns for wastewater systems or set aside funding for adaptation activities.  While NACWA commends the Senate for recognizing the vital principle that the hundreds of billions of dollars in annual allowance value and auction proceeds are ultimately a public benefit to be used for advancing vital societal goals, S. 2191 needs to also address the adaptation needs of public utilities.  NACWA’s Air Quality and Climate Change Committee has taken the lead along with NACWA’s Legislative Policy Committee on drafting a letter to the sponsors of the legislation that outlines these concerns and makes recommendations moving forward.

The letter will also stress the steps utilities are already taking to mitigate their own GHG emissions through strategies similar to what is required in S. 2191 and sometimes well in advance of the deadlines.  The bill does not currently allow clean water agencies to receive credit for their efforts, and NACWA is working to reverse that as the debate shifts to the Senate Floor.

To pass the bill, 60 votes will be needed to break a promised filibuster from Rep. James Inhofe (R-Okla.).  During this time, there will be ample opportunity for NACWA to work with other stakeholder groups on making additional improvements to the bill.  NACWA will continue to update its members on the Lieberman-Warner Climate Security Act of 2008 as it moves forward.

Security

NACWA Pushes for Chemical Security Exemption as Jurisdictional Fight Heats Up

NACWA continues to work with representatives from key water sector groups and staff on the House Homeland Security Committee to discuss concerns with draft legislation establishing security requirements for chemical facilities.  Under a “committee print” of the Chemical Facility Anti-Terrorism Act of 2008, clean water and drinking water agencies would no longer be exempt from Department of Homeland Security (DHS) chemical security regulations.  On Jan. 23, the Homeland Security Subcommittee on Transportation Security and Infrastructure Protection approved the committee print of the legislation, which has not been formally introduced and therefore does not have a bill number yet.  Without the exemption, DHS has the discretion to require clean water agencies to submit vulnerability assessments, implement facility security plans, take steps to harden facilities, and potentially switch from chlorine to other treatment alternatives.  A summary of the legislation and other information is available on the committee’s website.

NACWA and the water sector coalition have worked to convince committee staff that drinking water and wastewater treatment agencies should not be regulated under the same regime as private chemical manufacturers and suppliers.  The draft legislation places too much discretion in the hands of the DHS Secretary, and decisions made under the bill’s “inherently safer technology” (IST) provisions could interfere with utilities’ federally-mandated obligations to protect the public health and environment under the Clean Water and Safe Drinking Water Acts.  House Homeland Security Committee staff have expressed a willingness to explore some type of exemption or alternate title within the bill to exclude utilities altogether from the IST provisions.  In return however, they would likely seek support from the water sector in the developing jurisdictional battle between the House Homeland Security Committee and the committees that traditionally have authority over wastewater and drinking water security issues – the House Transportation & Infrastructure (T&I) and the House Energy and Commerce Committee.

The House Homeland Security Committee hopes to mark up and pass the bill in early March.  NACWA will continue to advocate for an exemption and is contacting members in key congressional districts to have them notify their representatives about the clean water community’s concerns with this bill.  NACWA met with Rep. Sheila Jackson-Lee, chair of the Homeland Security Committee’s Transportation Security and Infrastructure Protection Subcommittee, who said it is important that she hears from her constituents about the need for the exemption.  NACWA will also continue to work with other water sector groups in advocating for the exemption.  No action has been taken yet in the Senate.

Sewer Overflow Monitoring and Notification

NACWA Completes Talks with American Rivers on Sewer Overflows, Board to Vote on the Proposed Agreement Soon

NACWA, representatives from American Rivers (AR), and congressional staff have finished up the negotiation process to develop mutually acceptable language that would replace the Raw Sewage Overflow Community Right-to-Know Act (H.R. 2452).  NACWA is now awaiting the final language from Rep. Tim Bishop’s (D-N.Y.) office – Rep. Bishop sponsored H.R. 2452 – that would serve as a substitute for the bill.  This would be accomplished through the adoption of an amendment in the nature of a substitute to replace the entire text of H.R. 2452 with the NACWA – AR language.  The negotiations were completed in good faith and have resulted in language that will ensure stronger protections for public health without putting an unreasonable burden on municipalities.  Sen. Frank Lautenberg (D-N.J.) has introduced a companion bill in the Senate, S. 2080.  An in-depth analysis of the original bills can be found in NACWA’s Legislative Alert 07-03.

Throughout negotiations, NACWA has engaged its Legislative Policy and Facility & Collections System Committees to provide the National Office with comments on both the original legislation and subsequent draft language.  The bills were also discussed at length during the Winter Conference by the Legislative Policy Committee, Legal Affairs Committee, and Facility & Collections System Committee.  Members raised several key issues of concern throughout the process with regard to the bill’s duplicative and potentially onerous provisions, but relayed no deal-breakers to NACWA.  AR was receptive to these concerns and worked in good faith to address virtually all of the issues raised by members in the revised language.

The title of the bill has been changed to the “Sewage Overflow Community Right-To-Know Act” from the “Raw Sewage Overflow Community Right-To-Know Act,” removing what some members thought to be inflammatory language.  In the Findings section NACWA was successful in eliminating questionable statistics that discussed a “loss of swimming opportunities” and the “economic losses due to swimming related illnesses.”  The original bill language inaccurately attributed these beach closings to sewer overflows, when the source of most pathogen contamination is wildlife waste from stormwater runoff.  The final agreed upon language also adds a subsection praising sewage treatment operators for the work they do to protect the public health and achieve the fundamental goals of the Clean Water Act.  NACWA was also successful in adding a finding on the need for a comprehensive sanitary sewer overflow rule that would address satellite collection systems which are responsible for the majority of SSOs.  The new Findings language is a significant improvement and addressed all the major concerns raised by NACWA members.

AR was not willing to remove language including basement backups in the definition of SSOs from the bill’s Definitions section that amends the Clean Water Act (CWA).  Based on member comments, staff pushed hard to eliminate this language from the definition of SSOs; however, it was a non-starter with both American Rivers and congressional staff, noting that the language was the same as that in the 2001 proposed SSO policy.  AR did agree to exclude wastewater backups into buildings that are caused by a blockage or other malfunction of a building lateral that is privately owned and removed the notification requirements for basement backups into single-family residences (homes, apartments, condos, etc.).

AR also agreed to remove the 24 hour and five day reporting requirements found in the original legislation.  The new language only contains monthly and yearly reporting requirements that NACWA member comments supported.  NACWA staff was also successful in excluding from the bill’s reporting requirements “releases of wastewater in the course of maintenance of treatment and transmission facilities that are managed consistently with a facility’s Best Management Practices and are intended to prevent overflows.”  These releases were not excluded from the notification provisions, but language included in the bill limiting notification requirements to those overflows that “may imminently and substantially endanger human health” will ensure that the public need not be notified in the case of incidental releases of small quantities of wastewater or solids that pose no real risk.  Finally, language was added instructing EPA to establish criteria to guide POTWs in assessing whether an overflow has the potential to adversely affect human health as well as what is “feasible” and “timely” as they apply to provisions in the bill requiring POTWs to “institute and utilize a feasible methodology, technology, or management program that will alert the owner or operator to the occurrence of a sewer overflow in a timely manner.”   These criteria are to include, but not be limited to, site-specific conditions and cost factors at the POTW and represents a significant improvement over H.R. 2452 as introduced.

Congressional staff on the House T&I Committee and Senate Environment & Public Works (EPW) Committee have expressed a strong desire for both NACWA and American Rivers to support the legislation as primary stakeholders.  The leadership of the committee has placed the bill on its short list of legislation to mark up and send to the floor in 2008 and is hoping to move the bill out of subcommittee sometime within the next 6 – 8 weeks.  Support by both groups will help facilitate this timetable.  Reps. Bishop and Jim Oberstar (D-Minn.), Chair of T&I, have however both expressed a willingness to move forward with the original version of the bill should NACWA’s board opt not to support it.  NACWA also learned this week that the timetable in the Senate is on less of a fast-track than in the House.  Senate staff have expressed an interest in holding hearings before moving forward with the legislation but also want to substitute its legislation with the NACWA – AR version.  NACWA expects to have the substitute version of the bill back from House staff on Tuesday, Feb. 26 at which time it will be sent to the Association’s Board for consideration and a vote.  NACWA will report back to the membership with the Board’s determination in future Alerts and Updates.  The Association greatly appreciates the efforts by its members to work collaboratively with AR and congressional staff throughout negotiations.