This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through June 18, 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, please click on the web links in selected news items or contact Susie Bruninga 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 (202/833-3280) or Byron DeLuke at bdeluke@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it (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.

Top Stories

Senate Bill Addressing Climate Change Through Cap-and-Trade Withdrawn

Senate consideration of the Climate Security Act of 2008, (S. 3036), which seeks to cut greenhouse gas emissions 70 percent from industrial sources by 2050 through a cap-and-trade program, ended June 6 after supporters failed to secure enough votes to proceed.  Republican leaders had essentially shut down the Senate during what was supposed to be a time of debate by forcing clerks to read the entire bill aloud.  The maneuver, which lasted nine hours, forced supporters to call for a cloture vote to end debate on the bill without substantive consideration of amendments.  Unable to move forward, Democratic leadership yanked the bill from the floor.  S. 3036 was introduced May 21 as a substitute amendment for the Climate Security Act of 2007 (S. 2191) , which was approved by the Senate Environment and Public Works (EPW) Committee in December 2007.

POTWs would not have been regulated under S. 3036 but may have benefitted from some of its provisions, including a section that would have allowed them to develop projects that create emissions “offsets” that could be sold to high-emitting sources and generate significant revenue for plant operators.  The bill also allocated free emissions allowances to states and municipalities for adaptation and mitigation activities and would have established a new program to research the effects of climate change on water and wastewater systems (See LA 08-03 for details).  NACWA met regularly with Senate EPW staff leading up to the debate and wrote or signed onto numerous letters urging support for programs that would benefit water quality, support additional research, and provide federal funding for adaptation needs.  NACWA’s advocacy was guided by the Association’s white paper, Climate Change: Emerging Issues for Clean Water Agencies, outlining how water resources might be affected by climate change.

Even though Senate Leadership was unable to foster a substantive debate on the climate bill, the effort on the Senate floor marks an important milestone in what promises to be a protracted discussion in the next Congress and beyond about how to address global climate change.  The bill’s original sponsors, Sens. Joe Lieberman (I-Conn.) and John Warner (R-Va.) indicated that the floor debate was merely a ‘prelude to next year’ when a new Congress and president will have a more viable opportunity to pass legislation.  NACWA will continue to work with congressional staff to improve the legislation while helping to define climate change as a water resource issue.

House Climate Change Bill Targets POTWs

In the House of Representatives, Rep. Ed Markey (D-Mass.), who sits on the House Select Committee on Energy Independence and Global Warming, introduced the Investing in Climate Action and Protection Act (ICAP) (H.R. 6186) on June 4.  H.R. 6186 is similar in concept to the Senate bill, but even more stringent with an emission-reduction goal of 85 percent by the year 2050.  POTWs would not be covered under the cap, but would be subject to mandatory performance standards to reduce emissions of methane and nitrous oxide.  This is the first federal bill that has specifically targeted wastewater agencies.  H.R. 6186 also does not include language that would allow POTWs to develop projects that create emissions offsets to be sold to high-emitting industrial sources.  NACWA will continue to push for offset allowances in the Markey bill while working to ensure that POTWs are not inappropriately covered by this bill.

H.R. 6186 provides that 2.5 percent of the money raised through the auctioning of emissions credits be allocated to states and municipalities for climate change adaptation activities under the bill’s National Climate Change Adaptation Program.  And though the types of projects that would be eligible for this funding are not identified, six of the ten “predicted future impacts” of climate change that the adaptation program would seek to address involve water resources and infrastructure.  This program could generate significant revenue for plant operators as it is valued at about $200 billion through 2050.  However, like its Senate counterpart, H.R. 6186 is not likely to pass this year and may not be the subject of many hearings since portions of the bill fall within the jurisdiction of several House committees.  Primary jurisdiction rests with the Energy and Commerce Committee.  Rep. John D. Dingell (D-Mich.), chair of Energy and Commerce, is also expected to develop a bill this summer, but it is unclear whether they will take a similar approach.

The House Transportation and Infrastructure (T&I) Committee also reported out legislation (H.R.  5770) calling on the National Academy of Sciences (NAS) to study the impacts climate change will have on water resources and water quality.  This information will be useful as NACWA advocates for funding to help its member agencies adapt to the possible effects of climate change on wastewater agencies.

Appropriations and Funding

NACWA/WIN Provide Input as Work on Clean Water Trust Fund Bill Progresses

NACWA and the Water Infrastructure Network (WIN) met June 6 with the legislative director for Rep. Earl Blumenauer (D-Ore.), who is in the process of crafting legislation for a water trust fund.  Blumenauer is seeking input from key parties, including NACWA, into specific aspects of the bill prior to releasing a draft for comment.  The bill, to date, does not vary much from the one-page summary released this spring and follows closely with the 2005 draft WIN bill.  The Blumenauer draft identifies six revenue sources for funding the $10 billion water trust fund annually.  These include:

1. A 5-cent per bottle fee on bottled water, estimated to generate about $1 billion;
2. A 3-percent excise on “flushables” to generate about $3.5 billion;
3. A permit fee on industrial dischargers of certain toxic chemical pollutants, which would result in about $2-4 billion annually;
4. A fee on pesticides and fertilizers to generate about $1 billion annually;
5. A corporate environmental income tax (CEIT) similar to what is available for superfund, that would generate $1 billion; and
6. A pharmaceutical fee of 1 percent, with the amount this would raise yet to be determined.

While the revenue provisions of the bill could generate significant opposition, Blumenauer said the bill is justified by the great need to upgrade our water infrastructure.  NACWA will be doing some additional work to provide an analysis of the nexus of each revenue source to the nation’s water quality and clean water infrastructure.  These will be used to educate the public and members of Congress about the importance of a federal commitment to clean water in the form of a trust fund once the bill is introduced later this summer.

With the climate change issue off the Calendar until next year, the Senate Environment and Public Works (EPW) Committee has the opportunity to introduce legislation reauthorizing the clean water state revolving fund (CWSRF).  NACWA has met with committee staff who said that EPW is looking at three markups for the remainder of the year and has set one aside for a reauthorization bill.  The House overwhelmingly passed a similar bill, H.R. 720, in March 2007 that would provide $14 billion over four years for the CWSRF.  NACWA continues to urge the Senate EPW to introduce and pass legislation to reauthorize the CWSRF, noting that the program enjoys broad bipartisan support.

House Subcommittee Increases Water Program Funds in EPA’s FY 2009 Budget

While NACWA is looking at separate bills to boost CWSRF dollars (above article), the Association is also focused on the annual appropriations process for the U.S. Environmental Protection Agency’s (EPA’s) budget, which includes CWSRF funds.  On June 5, the House voted 214-210 to approve the FY 2009 budget resolution.  House action came after the Senate approved the compromise measure June 4 by a vote of 48-45.  The resolution is a largely non-binding blueprint for Congress from which appropriations subcommittees will work to divvy up $1.12 trillion in discretionary spending programs through the various appropriations bills.  While the resolution does not outline funding levels for specific agencies or programs such as the CWSRF, the proposal does allocate spending among 20 categories known as budget functions.  For natural resources the budget provides a total of $40.5 billion in discretionary spending – a $7 billion increase over FY2008 levels – to be directed toward various programs under EPA, Superfund, the U.S. Army Corps of Engineers and the Bureau of Reclamation.

On June 11, the House Interior Appropriations Subcommittee approved $7.8 billion in spending for EPA in FY 2009, with $850 million going to the Clean Water State Revolving Fund (CWSRF).  Overall, EPA would receive a nearly $700 million boost and the CWSRF would see an increase of nearly $300 million from President Bush’s request of $555 million.  The FY 2008 budget for the CWSRF was $689 million.  NACWA will continue to urge members on the House and Senate Appropriations Committees to restore the CWSRF to its historical funding level of $1.35 billion in FY 2009.  Fully funding the CWSRF is a critical first step toward a long-term, sustainable commitment to clean water in the form of a national clean water trust fund.

NACWA also believes that the prospects are good for funding of the National Biosolids Partnership (NBP) in the FY 2009 bill.  The Association made it a priority to work with the Water Environment Federation (WEF) to ensure that funding be included in EPA’s FY 2009 budget for the NBP after it was not included in the EPA budget for either the current fiscal year or in FY 2007.  Rep. Jim Moran (D-Va.) sent a letter in March to Reps. Norm Dicks (D-Wash.) and Todd Tiahrt (R-Kan.), the chair and ranking member, respectively, of the Interior and Environment Subcommittee, urging that this critical funding be restored.  NACWA and WEF worked with congressional staff to add a dozen additional signatures to the Moran letter before it was sent.  In addition, NACWA’s Board of Directors approved a resolution at its meeting during the Association’s Winter Conference in Phoenix calling on Congress to restore the $1 million in NBP funding.  The bill now proceeds to the full committee then to the House floor for final approval before it is reconciled with the Senate.  NACWA will have more on this issue as developments occur.

NACWA Provides Input on Ohio Senator’s Draft Affordability Bill

NACWA met May 21 with the staff of Sen. George Voinovich (R-Ohio), a member of the Senate Environment & Public Works (EPW) Committee, to discuss possible affordability legislation.  Voinovich will introduce a bill soon that would call on EPA to establish a realistic approach for defining a utility’s financial capability regarding long-term control plans (LTCPs) to address combined sewer overflows (CSOs) and sanitary sewer overflow controls (SSOs) and ensuring that such control programs are truly affordable for the utility’s ratepayers.  His leadership on affordability stems from several recent meetings with Ohio public agencies that are facing costs in the billions of dollars to control CSOs and SSOs in cash-strapped communities that will see little to no net environmental benefit.  Voinovich’s staff discussed in detail NACWA’s work on the affordability issue, including its November 2007 NACWA Financial Capability Compilation, and asked for the Association’s expertise in helping to craft this key legislation.  Voinovich’s staff said they are confident they can fast-track introduction of a bipartisan bill this year and will rely significantly on NACWA’s input in drafting the legislation.  NACWA has already received several member comments on the draft language and will continue to help guide efforts in drafting the bill.

New Jersey Representative Introduces Private Activity Bond Financing Bill

Rep. Bill Pascrell (D-N.J.) has introduced legislation that would enable expanded use of Private Activity Bonds (PABs) for water infrastructure.  The bill, titled the Sustainable Water Infrastructure Investment Act (SWIIA), H.R. 6194, would amend the Internal Revenue Code to remove the volume cap for private activity bonds for water and wastewater facilities.  The Bush Administration and EPA have called for such a proposal as a way to address the water infrastructure funding crisis.   Proponents argue that this change in the tax code could pump as much as $6 billion annually into water and wastewater infrastructure.  However, the evidence suggests that private investment in the water sector cannot in any meaningful way address the $300 - $500 billion funding gap.  Many states have not even met their current volume caps.  NACWA believes the federal government should do more to help local communities comply with federal clean water mandates and that Congress should focus on more sustainable and long-term approaches to bridge the nation’s growing infrastructure funding gap.

Beach Act

Senate Environment Committee Approves BEACH Act Reauthorization

Legislation reauthorizing the Beaches Environmental Assessment and Coastal Health (BEACH) Act was approved by the Senate EPW Committee May 21 by voice vote.  The Beach Protection Act of 2008 (S. 2844), introduced by Sens. Frank Lautenberg (D-N.J.) and George Voinovich (R-Ohio), would increase grant money to states for beach monitoring and cleanup from $30 million to $60 million through 2012.  The House passed a similar version of the bill (H.R. 2537) on April 16 by voice vote.  That bill would provide $40 million in state grants for monitoring and tracking pollution at beaches.

The bill would make several changes to the BEACH Act.  For the first time, funding could be used for actual beach cleanups.  The bill also calls on EPA to approve rapid test methods that can detect contamination within two hours so that the public can be notified of any potential health risks as soon as possible.  Currently, water quality monitoring tests can take as long as two days.  In addition, EPA would have to validate its test methods within two years and would have to conduct a study on how it distributes grants to states.  Grants could also be used for pollution source tracking and pollution prevention.    NACWA has voiced its concern over these provisions because the science for rapid test methods and microbial source monitoring is not fully developed.  The Association believes these provisions are premature and should not be required until these test methods can be demonstrated to provide accurate results.  NACWA will follow developments regarding the bill as the Senate considers its next steps for the legislation.

Security

Water Sector Security the Focus of House Energy and Commerce Hearing

The House Energy and Commerce Subcommittee on Environment and Hazardous Materials held a hearing this week on two bills addressing chemical security.  The Chemical Facilities Act of 2008, H.R. 5533 , and the Chemical Facility Anti-Terrorism Act of 2008, H.R. 5577, both of which seek to address the security of the nation’s chemical facilities by making permanent the chemical security regulations published by the U.S. Department of Homeland Security (DHS) that are set to expire in 2009.  However, H.R. 5577, introduced by Rep. Bennie Thompson (D-Miss.), chair of the House Homeland Security Committee, would repeal the exemption for drinking water and wastewater utilities, which have worked with EPA and DHS to develop strong, voluntary security protocols.  The bill would also transfer primary jurisdiction over wastewater security from EPA to DHS.  NACWA worked hard in the previous Congress to ensure clean water agencies were exempt from the DHS regulations.  Without the exemption, DHS has the discretion to require clean water agencies to submit vulnerability assessments and implement facility security plans approved by DHS if they meet certain threshold criteria, such as their proximity to population centers, size, and the types of chemicals they store.  NACWA has argued that these duplicative and burdensome requirements are inappropriate for wastewater and drinking water facilities whose goal is the protection of public health and the environment.

Ben Grumbles, EPA assistant administrator for water, and Robert B. Stephan, assistant secretary for infrastructure protection at DHS, testified that chemical security at water and wastewater utilities is a “significant homeland security vulnerability.”  Grumbles stated that, “DHS and EPA believe there is an important gap in the framework for regulating the security of chemicals at water and wastewater treatment facilities in the U.S.”  He went on to ask that Congress address this gap by closing the existing exemption for water and wastewater treatment facilities.  Stephan asked that these facilities “be regulated for security in a manner that is consistent with CFATS.”  Grumbles praised the work that NACWA has done in developing the Chlorine Gas Decision Tool as a user-friendly, voluntary measure that has helped water and wastewater utilities examine alternatives to chlorine gas disinfection, and significantly, both Grumbles and Stephan recognized the unique public health and environmental requirements facing these agencies – a point NACWA has made repeatedly.

Former Rep. Albert Wynn (D-Md.), who at the time was the chair of the Subcommittee on Environment and Hazardous Materials, introduced H.R. 5533 to exert the Energy and Commerce Committee’s jurisdiction over security issues at drinking water facilities.  It also extends the current exemption for both drinking water and wastewater utilities.  According to Rep. John Dingell (D-Mich.), chair of the full Energy and Commerce Committee, “The Committee on Energy and Commerce has broad experience, expertise, and jurisdiction in matters dealing with security of chemicals and chemical plants.”  According to his opening statement, “The Environmental Protection Agency (EPA) has unique expertise with water security as the President has recognized in making the agency the lead Federal agency for protecting critical infrastructure relating to water security…I see no reason to change this assignment of responsibilities.”  Other subcommittee members also felt strongly that primary jurisdiction for water utilities should remain with EPA.  Similarly, it is the House T&I Committee that has jurisdiction over the Clean Water Act and wastewater infrastructure, and committee staff have assured NACWA that they will also be asserting jurisdiction but are waiting to see this play out in Energy and Commerce, which has until July 11 to consider the legislation.  NACWA will continue to urge T&I to assert its jurisdiction over wastewater security and to maintain EPA’s authority of this issue.

Wet Weather

NACWA Provides Input to Key House, EPA Staff on Sewer Overflow Bill

NACWA continues to meet with staff from American Rivers, the House Transportation and Infrastructure (T&I) Committee, the office of Rep. Tim Bishop (D-N.Y.), and EPA to further refine provisions in the Sewage Overflow Community Right-to-Know Act (H.R. 2452).  The legislation, introduced by Bishop, seeks to establish a national program for monitoring and reporting sewer overflows.  NACWA’s Board of Directors voted in April to support revised language for the bill, which was reported out of the T&I Committee May 15 after several months of negotiation.  A summary of these discussions and the revised bill can be found in NACWA’s Legislative Alert, LA 08-02.

Before scheduling the bill for a vote by the full House, committee staff are looking to include report language clarifying that publicly owned treatment works (POTWs) would not be responsible for sewer overflows from satellite collection systems that they do not own or operate, among other issues of importance to NACWA members.  In addition to report language, the committee is also considering substitute language for the House floor addressing how combined sewer overflow (CSO) communities would be affected while laying out a more detailed timeline for EPA’s implementation of the bill.

The timetable for consideration of Senate companion legislation, S. 2080, is not as clear.  Senate staff have said that they would probably substitute S. 2080 with the language agreed upon by the House.  NACWA will continue to pursue additional revisions to address member concerns and will seek member comments on the revised language.  An additional Board vote may be necessary depending on the extent to which H.R. 2452 is altered.