This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through July 16, 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

NACWA Board Considers Support for Overflow Notification Bill Passed by House

The U.S. House of Representatives approved by voice vote June 23 legislation to establish national standards for monitoring and reporting sewer overflows.  What the House passed was a substitute amendment for the Sewage Overflow Community Right-to-Know Act (H.R. 2452), which NACWA negotiated over several months with American Rivers and key staff from the House Transportation & Infrastructure (T&I) Committee and Rep. Timothy Bishop’s (D-N.Y.) office.  The House bill, which is being supported by Reps. James Oberstar (D-Minn.), chair of the House T&I Committee, and John Mica (R-Fla.), ranking member of the Committee, is similar to language approved by NACWA’s Board of Directors in April.  It does, however, contain several key clarifying changes in both the final version of the bill and its accompanying committee report (PDF).  These are detailed in a summary (PDF)  made available for NACWA members.  While the resulting bill and its accompanying report do not address all of the concerns raised by the clean water community, the National Office believes it represents a good-faith effort to set up a workable program.  NACWA’s Board of Directors discussed the legislation via conference call July 1 and is working closely with the Legislative Policy and Facility & Collection System Committees to develop a strategy as the bill moves to the Senate.

NACWA continues to meet with staff of Sen. Frank Lautenberg (D-N.J.), chair of the Senate Environment and Public Works(EPW) Subcommittee on Transportation Safety, Infrastructure Security and Water Quality, to discuss the next steps for H.R. 2452’s companion legislation in the Senate (S. 2080) introduced last year.  Staff stated that the committee prefers to mark up the House-passed version of the bill, but is open to discussing further improvements to address concerns that minority members of the committee have with the House bill.  There was significant interest in adding a funding component to the bill, and Lautenberg has been a key ally on the funding issue, sponsoring another bill (S. 836) that would provide $1.8 billion in grants to communities for wet weather control initiatives.  Staff have also suggested that the bill could be included along with other pending environmental legislation as part of a larger infrastructure funding package in 2009.  NACWA still believes that these issues are best addressed through a sanitary sewer overflow (SSO) rule that would address the issues in comprehensive and cohesive fashion.  Even though H.R. 2452 is not perfect, the collaboration has led to a much-improved piece of legislation.  NACWA will continue to work with Senate staff to improve the legislation as it moves forward in the Senate.

Background Information
H.R. 2452 was first introduced on May 23, 2007, by Rep. Timothy Bishop (D-N.Y.).  NACWA Treasurer Kevin Shafer, executive director of the Milwaukee Metropolitan Sewerage District, testified in support of the overall goals of the legislation at a House T&I Subcommittee on Water Resources and Environment hearing in October 2007 and noted that many municipalities already have notification and reporting requirements that are more stringent than what is required by H.R. 2452.  He reiterated NACWA’s preference that monitoring and reporting requirements be part of a comprehensive sanitary sewer overflow (SSO) policy developed by EPA and outlined several concerns with certain provisions of the legislation.  American Rivers also testified at this hearing, strongly in favor of the bill, and committee staff requested that American Rivers and NACWA work together with the committee on a revised bill.

Appropriations and Funding

Senate Banking Committee Chair Looks to Move National Infrastructure Bank Bill

The concept of a wide-reaching infrastructure banking bill to help fund water and wastewater infrastructure improvements continues to gain momentum in both the House and Senate.  The National Infrastructure Bank Act of 2007, S. 1926, introduced last August by Sens. Chris Dodd (D-Conn.) and Chuck Hagel (R-Neb.), would create a new mechanism for the federal government to use in financing large infrastructure projects.  Modeled after the Federal Deposit Insurance Corp., the National Infrastructure Bank would operate as an independent entity of the federal government with the mission of evaluating and financing capacity-building projects “of substantial regional and national significance.” Publicly-owned mass transit systems, housing properties, roads, bridges, drinking water systems, and wastewater systems all would be eligible for NIB funding.

Though the legislation has yet to move in either chamber, Dodd, chair of the Senate Banking, Housing and Urban Affairs Committee, stated at a June 12 hearing that the committee is planning to mark up the bill in July.  House Speaker Nancy Pelosi (D-Calif.) has also announced her support for Rep. Earl Blumenauer’s (D-Ore.) bill, H.R. 5976, which would establish a national commission to draw up “a national vision for infrastructure investments, including specific [financing] recommendations.”  Without committing herself to particular funding mechanisms, Pelosi has said that the commission should at least consider a national infrastructure bank, and that Congress may need to establish a federal capital budget for all U.S. infrastructure.  Pelosi and Dodd have both mentioned the infrastructure bank in recent speeches linking the current economic downturn to the infrastructure crisis and NACWA has learned from staff that there is a strong interest in passing a second stimulus bill focused on funding water and wastewater projects.

NACWA/WIN Provide Input to GAO as Work on Trust Fund Revenue Study Progresses

NACWA and the Water Infrastructure Network (WIN) met July 10 with staff from the Government Accountability Office (GAO) to provide input on a study of potential revenue sources for a national clean water trust fund.   The GAO study was requested in January by Reps. James Oberstar (D-Minn.), chair of the House Transportation & Infrastructure (T&I) Committee; Eddie Bernice Johnson (D-Texas), chair of  the T&I Water Resources and Environment Subcommittee, and Earl Blumenauer (D-Ore.), member of the House Ways and Means Committee.   Blumenauer has been working on a draft trust fund bill based on the 2005 draft WIN bill, which he hopes to release in the coming weeks.

NACWA has worked closely with Blumenauer to identify several possible revenue sources for the $10 billion water trust fund.  These include a 5-cent per bottle fee on bottled water, estimated to generate about $1 billion; a 3-percent excise on “flushables” to generate about $3.5 billion; a permit fee on industrial dischargers of certain toxic chemical pollutants, which would result in about $2-$4 billion annually; a fee on pesticides and fertilizers to generate about $1 billion annually; a corporate environmental income tax (CEIT) similar to what is available for superfund, that would generate $1 billion; and a pharmaceutical fee of 1 percent, with the amount this would raise yet to be determined.  NACWA is also doing an analysis of how each revenue source relates to the nation’s water quality and clean water infrastructure.  The information has been provided to GAO staff, who are expected to complete the study by January 2009.  NACWA will continue to work with House T&I staff, who will draft their own bill once the GAO study is completed, and with Blumenauer on his trust fund efforts.

Annual Appropriations Process Stalled

While work continues on separate clean water infrastructure funding bills, the annual appropriations process for the U.S. Environmental Protection Agency’s (EPA’s) budget, which includes CWSRF funds, has stalled.  The House Interior Appropriations Subcommittee had approved $7.8 billion in fiscal year (FY) 2009 spending for EPA on June 11, with $850 million going to the Clean Water State Revolving Fund (CWSRF).  This represents an increase of nearly $300 million from President Bush’s request of $555 million.  However, the full House Appropriations Committee markup has been delayed due to three GOP amendments aimed at expanding domestic energy production by opening up the Arctic National Wildlife Refuge in Alaska for oil drilling, allowing for exploration of oil shale, and opening up U.S. waters to offshore oil drilling.

Rep. David Obey (D-Wis.), chairman of the House Appropriations Committee, called the attempt a “cheap, political stunt.” As a result, Obey has threatened to shut down the entire appropriations process and instead move a large omnibus appropriations bill early next year after President Bush leaves office.  If Congress does indeed go this route, it will have to pass a continuing resolution (CA) for the interim.  Meanwhile, the Senate has yet to act on any of its individual Appropriations bills.  NACWA and the Natural Resources Defense Council (NRDC) sent a joint letter July 7 to Sen. Dianne Feinstein, chair of the Senate Appropriations Subcommittee on Interior and Environment (EPA budget), urging increased funding for the SRF.  The Subcommittee has not yet scheduled a markup for the Interior and Environment bill, but NACWA will keep membership posted as we learn more.  For now, the Association is proceeding with its advocacy efforts as if the Senate is moving ahead this year.

Senate Poised to Introduce Bill Requiring EPA to Revise its Financial Capability Guidance

NACWA’s Affordability Workgroup has been working closely with staff of Sen. George Voinovich (R-Ohio), a senior minority member of the Senate Environment & Public Works (EPW) Committee, on draft legislation that would 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).  The goal is to ensure that such control programs are truly affordable for the utility’s ratepayers.  The legislation  would require EPA to update its 1997 Combined Sewer Overflows — Guidance for Financial Capability Assessment and Schedule Development document, based in large part on the more flexible and site-specific principles espoused by NACWA in its November 2007 NACWA Financial Capability Compilation (PDF). NACWA has been urging the agency to make these changes for some time.  NACWA has also met several times this month with staff from the office of Sen.  Frank Lautenberg (D-N.J.), chair of the EPW Committee’s Subcommittee on Transportation Safety, Infrastructure Security and Water Quality, seeking to have him cosponsor the bill.  Lautenberg expressed an interest in being a cosponsor, and the bill is expected to be introduced sometime this summer.  NACWA was asked to share the draft bill only among the affordability workgroup, but will make it available to the full membership upon its introduction.

Dental Amalgam

NACWA Comments on Dental Amalgam Discharge Reductions

The House Oversight and Government Reform Subcommittee on Domestic Policy, chaired by Rep. Dennis Kucinich (D-Ohio), held a hearing July 8 to look at the  the environmental and public health risks associated with the use of dental amalgam, which contains mercury.  Ann Farrell, director of engineering for Central Contra Costa Sanitary District (CCCSD) and Pat Magnusson, industrial waste investigator for King County, both testified that source control is the most effective method for reducing mercury discharges because of the technical challenges and expense associated with removing mercury from wastewater effluent and biosolids.  Each agency had worked with local dentists on voluntary strategies to curb mercury discharges to publicly owned treatment works (POTWs), but eventually had to move to mandatory installation of amalgam separators.  While NACWA did not testify at the hearing, the issue of mercury discharged to wastewater treatment plants remains a major focus for the Association.  NACWA has met with committee staff to discuss this issue and sent  letter (PDF) Nov. 21 to Kucinich that discussed the efforts clean water agencies have undertaken to reduce levels of mercury in wastewater effluent and biosolids.  The Association also continues to stress that air deposition and other sources are also largely responsible for elevated mercury levels in water and must be addressed in order to achieve any measurable benefit.  NACWA does not expect any action in Congress this year but will continue to track this important issue.

Farm Bill

NACWA Issues Analysis of 2008 Farm Bill Provisions That Benefit Water Quality

In response to members’ requests for more information regarding conservation benefits of the 2008 Farm Bill, NACWA  put together a brief  analysis (PDF) of programs in the law designed to benefit water quality.  President Bush vetoed the legislation, the Food, Conservation and Energy Act of 2008 (Pub.Law 110-234), in May saying it was too costly and provided too much money to wealthy farmers.  Congress overrode the veto May 22, and the Farm Bill became law.

NACWA worked hard with water sector groups and conservation organizations to ensure a robust conservation title that would provide financial incentives to help farmers control their agricultural runoff.  The new law creates the Agricultural Water Enhancement Program (AWEP) that allows “units of local government,” which may include clean water agencies, to work with producers and others on projects that benefit water quality.  More than $438 million was also included to address water quality challenges in the Chesapeake Bay caused by agriculture.  NACWA recently participated in a conference call with the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the Association of California Water Agencies (ACWA), and the American Water Works Association (AWWA) to discuss draft AWEP regulations being circulated by the U.S. Department of Agriculture (USDA) and is submitting a letter signed by the water sector groups supporting the program, but seeking clarification on a number of issues.  The water sector groups want to ensure that the regulations specifically identify water and wastewater organizations as partners eligible to enter into an agreement with USDA to implement an AWEP project.  Under the current draft, the term “partner” includes “a unit of state or local government” as well as “a water district or water agency.”  In addition, the groups want to ensure that the list of eligible activities under the program includes items of importance to the water sector, such as manure management.  NACWA and the other groups also plan to sign on to a draft letter being sent by conservation organizations supporting the program and highlighting ways to improve the draft regulation.  NACWA will continue to work closely with its partner organizations in the development of this important program and welcomes comments from its public agency members on the draft regulation.  Please direct comments or questions to Susie Bruninga at sbruninga@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Security

House Committees Weigh Water Sector Security Exemption, EPA Security Role

Staff from the House Homeland Security and Energy and Commerce Committees have begun discussions to resolve a jurisdictional dispute over two competing chemical security bills pending in the House.  Rep. Bennie Thompson (D-Miss.), chair of the House Homeland Security Committee, introduced the Chemical Facility Anti-Terrorism Act of 2008(H.R. 5577) in March  to make permanent the chemical security regulations published by the U.S. Department of Homeland Security (DHS) that are set to expire in 2009.  The bill includes stronger consideration of inherently safer technologies and would include previously exempted water and wastewater treatment facilities in the chemical security program.  DHS would have the discretion to require clean water agencies to submit vulnerability assessments and implement facility security plans.  NACWA continues to argue that public water and wastewater agencies should not have to meet the same requirements as for-profit chemical manufacturers.

However,  the Chemical Facilities Act of 2008 (H.R. 5533), introduced by former Rep. Albert Wynn (D-Md.), would essentially make permanent the interim law enacted in 2006 and the resulting DHS regulations issued in 2007.  The Wynn bill would continue to exempt water and wastewater treatment facilities and would not require consideration of inherently safer technology as part of the program.  NACWA has offered its support for this approach during several meetings with staff for the House Transportation and Infrastructure (T&I) Committee, which has jurisdiction over the Clean Water Act and wastewater infrastructure.  T&I staff are currently waiting to see what the House Energy and Commerce Committee will do before taking action of its own.  And while the main focus of the discussions has been on resolving the two committees’ competing jurisdiction over chemical security legislation, staff have also been deciding whether EPA or DHS should take the lead on regulating water and wastewater facilities if they are included in the chemical security program.

EPA and DHS both support the inclusion of drinking and wastewater treatment facilities determined to be high-risk in the chemical security program.  Benjamin Grumbles, EPA assistant administrator for water at the U.S. Environmental Protection Agency (EPA), and Robert B. Stephan, assistant secretary for infrastructure protection at DHS, testified June 12 before the House Energy and Commerce Subcommittee on Environment and Hazardous Materials that the exemption represents a significant gap in the CFATS program.  They reiterated that the agencies should work together to address the gap, but did not take a position on the jurisdictional question among the House committees.  However, a recent DHS letter to Thompson expressed strong opposition to H.R. 5577, claiming that the bill would have “a negative impact upon current and future efforts to secure the nation's high-risk chemical plants.”  In a June 12 response to DHS, Thompson expressed suspicion over the agency's timing and stated that he is “doubtful that DHS is still interested in continuing our good faith efforts at collaboration on this critical homeland security initiative.”

NACWA believes that these conflicts and a tight legislative calendar during an election cycle make it unlikely that Congress will enact chemical security legislation this year, even if a compromise is eventually reached in the House.  The jurisdictional fight is, however, setting the table for eventual passage in 2009.  NACWA will continue to engage on this issue by urging T&I to assert its jurisdiction over wastewater security and to maintain EPA’s jurisdiction for wastewater facilities.

Watershed Act

House Committee Holds Hearing to Discuss State and Regional Watershed Efforts

The House T&I Committee heard testimony June 24 on state and regional watershed management and planning efforts.  The committee members were interested in knowing which projects have been successful, what role agencies should play in watershed planning, and what factors should be considered to ensure success.  Much of the testimony echoed recommendations made by NACWA’s Strategic Watershed Task Force in its Recommendations for a Viable and Vital 21st Century Clean Water Policy.

Specifically, Paul Freedman, vice president of the Water Environment Federation (WEF), and Carol Collier, executive director of the Delaware River Basin Commission, testified that segmented and project-based watershed management strategies should be replaced by holistic watershed management plans that involve multiple stakeholders and management of multiple resources.  Freedman called for Congress to place a new emphasis on the “coordination of interrelated but currently separate water programs and their potential benefits and impacts.”  He also testified that the Clean Water Act (CWA) is not adequate for addressing these issues in a holistic manner and that “using the CWA to deal with today’s water issues is like trying to use a 1972 repair manual to repair a 2008 automobile- it’s just not relevant.”

As the director of the Delaware River Basin Commission, Collier presented the perspective of a region that has already implemented watershed management planning.  She testified that watershed management has enabled the four states of the Delaware Basin to address water issues that they could not have predicted when the commission was formed and called for the government to provide technical expertise and “federal funding that is not tied to specific projects.” NACWA believes that it is time for a comprehensive and integrated watershed approach and will continue to work aggressively through its Strategic Watershed Task Force to facilitate widespread adoption of watershed-based management concepts.  The Association will continue to work with members of Congress to help reform and fully align current environmental laws and statutes with the holistic watershed approach put forth in NACWA’s Recommendations for a Viable and Vital 21st Century Clean Water Policy.