This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through August 20, 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 Focuses on NACWA Priorities as Congress Leaves for August Recess

Congress left Aug. 1 for its summer recess and does not return until September, leaving unfinished several issues that have been the focus of NACWA’s legislative advocacy over the past year.  Many of these issues received significant attention in the Senate in the week preceding the recess and are expected to be taken up again either in September and/or next year in the 111th Congress.

BEACH Act Reauthorization
Of particular interest was the inclusion of the Beach Protection Act (S.2844) in a last-minute package of bills the Democrats sought to push through before the recess.   The so-called Advancing America’s Priorities Act bundled about 30 bills, most of them with strong bipartisan support, that had been held up by Sen. Tom Coburn (R-Okla.) In addition to S. 2844, which would reauthorize the Beaches Environmental Assessment and Coastal Health (BEACH) Act, the omnibus package included bills that addressed a range of priorities from AIDs research funding to stronger restrictions on child pornography.  However, the inclusion of the Beach Protection Act in the Coburn package quickly became the focus of the Senate Environment & Public Works (EPW) Committee after a trade press article coming out of NACWA’s Summer Conference in Anchorage outlined the ongoing concerns some NACWA members have with the bill.

Specifically, NACWA’s concerns are based on the current status of rapid testing methods.  First and foremost, these methods remain research-based and are not yet reliable without additional scientific study and validation.  While there are several rapid testing methods that are currently in use, the methods that are most developed and most commonly used employ molecular biology tools known as qPCR to detect the DNA of fecal indicator bacteria.  Such methods have three major weaknesses: 1) they do not detect the presence of actual pathogens but only the presence of indicator bacteria; 2) they cannot tell if the indicator bacteria being measured are alive or dead; and 3) they have not been sufficiently evaluated for reliability.  Other problems associated with these methods include poor reproducibility, high cost, interferences, and implementation issues.

Soon after the trade press article ran, the Clean Water Network, a national environmental advocacy group associated with the Natural Resources Defense Council (NRDC), distributed campaign materials on the Hill claiming that NACWA was trying to kill the omnibus package at the eleventh hour.  Majority staff on the Senate EPW Committee were not pleased that the Association’s concerns were made public in the trade press and disagreed with NACWA’s assessment of the bill’s rapid test methods provisions.  Majority staff were concerned that a NACWA letter decrying the rapid testing provisions in the Beach Protection Act would derail the entire Coburn package.  As a result, NACWA did not send the letter and engaged in serious discussions with EPW staff about how to address these issues.  Ultimately, the Advancing America’s Priorities Act failed to receive Senate support, leaving S. 2844 to be moved as a stand-alone bill if time permits in September.

Immediately following these events on Capitol Hill, a settlement agreement was filed August 8 by NACWA, the U.S. Environmental Protection Agency (EPA), the Natural Resources Defense Council (NRDC), and Los Angeles County in Natural Resources Defense Council v. U.S EPA.  The legislations’ provisions are inconsistent with the terms of the Agreement, which calls for EPA to conduct studies, validate, and publish a rapid test method for new or revised recreational water quality criteria by October 2012.  The House bill requires the EPA Administrator to validate a “rapid testing method” for pathogens or pathogen indicators in coastal waters by October 2010, while the Senate version requires a validation within two years of enactment.  “Rapid testing methods” are defined in the Beach Protection Act as those that produce results within six hours (House version) or two hours (Senate version) of receipt at a testing facility.  The August 8 Settlement Agreement, however, defines rapid test methods as those which produce results “as soon as practicable.”  While the Settlement Agreement does note that NRDC believes viable results can be obtained within two hours of testing and EPA believes results can be validated within six hours, it is “as soon as practicable” language that is the consensus approach.  A more detailed analysis of the settlement is available in Legal Alert 08-05; a copy of NACWA’s press release is also available.  A copy of the agreement, along with other documents related to the case, are available on the Litigation Tracking page of NACWA’s Member Pipeline.

The settlement’s provisions on rapid test methods represent a key victory in the Association’s advocacy efforts regarding the development of new recreational water quality criteria and will bolster NACWA’s advocacy efforts regarding the Beach Protection Act.  NACWA believes that the legislation should advance in a manner that is consistent with the Settlement Agreement language and is working along with Los Angeles County and the California Association of Sanitation Agencies (CASA) to make key congressional staff aware of these provisions.  The Association also continues to meet with NRDC to discuss the legislation and whether an agreement can be reached on specific testing provisions that are consistent with the terms of the settlement.

Sewer Overflow Notification
NACWA, American Rivers, and Senate EPW staff continue to discuss the Sewer Overflow Community Right to Know Act (S.2080), legislation seeking to establish national standards for monitoring, reporting, and notifying the public of sewer overflows, in an effort to find mutually acceptable terms to move forward with the bill.  NACWA sent a letter July 17 to Senate EPW leadership detailing the Association’s remaining concerns with the bill.  It recommended changes based on the House-passed version of the legislation (H.R.2452), which was the product of several months of negotiations among NACWA, American Rivers, key staff from the House Transportation & Infrastructure (T&I) Committee, and Rep. Timothy Bishop’s (D-N.Y.) office.  The Senate EPW Committee had planned to use H.R. 2452 as its baseline for markup.  NACWA members continue to have concerns with the bill, including language redefining sanitary sewer overflows (SSOs) under the Clean Water Act; a desire for additional municipal flexibility in developing monitoring programs; and the need for funding to implement the program’s requirements.  NACWA will discuss these concerns further with Senate staff and American Rivers and is confident they will be addressed in any substitute bill.

Meanwhile, the notification bill has been shelved until September and probably will not see action until next year in the new Congress.  It is significant to note that all of these bills have progressed on a broad bipartisan basis and are poised to move next year, making NACWA’s continued and consistent advocacy on these efforts of crucial importance.

Affordability

Ohio Senators Introduce Bipartisan Affordability/Financial Capability Legislation

Ohio Sens. George Voinovich (R) and Sherrod Brown (D) introduced bipartisan affordability/financial capability legislation Aug. 1 that calls on EPA to update its 1997 Combined Sewer Overflows – Guidance for Financial Capability Assessment and Schedule Development.  NACWA’s Affordability Workgroup has been working closely with the two senators to help 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 (SSO) controls.  Voinovich said the goal is “to ensure that such control programs are truly affordable for the utility’s ratepayers.”  The bill would set up a community grant program to provide $1.8 billion over five years for planning, design, and construction of treatment works.  The federal government would pay 75 percent of project costs, while municipalities would contribute 25 percent.  NACWA has been urging the EPA to make these changes for some time, and, indeed, the legislation is 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 will provide members with the bill number and any updates as they become available.

Biosolids

NACWA Meets with Key Senate Staff to Ensure Balanced Hearing on Biosolids

Sen. Barbara Boxer (D-Calif.), chair of the Senate EPW committee, has tentatively scheduled an oversight hearing on biosolids this September after a series of articles earlier this year questioned whether the land application of biosolids posed environmental or public health risks.  NACWA and representatives from the Water Environment Federation (WEF) have met several times this month with both Democratic and Republican staff of the EPW Committee to urge their Senators support for a balanced hearing on biosolids management programs.  NACWA sent its members a Regulatory Alert (RA 08-3) providing details on the Associated Press (AP) stories.  Even though sensational claims in the AP series have been shown to be inaccurate, they nevertheless garnered significant attention within the EPW Committee.  NACWA and WEF will meet with staff for every member on the committee to ensure a rational debate based on science.

The Senate staff have been receptive to information NACWA and WEF have provided regarding the safety of land applying biosolids and the effectiveness of EPA’s Part 503 regulations, which govern biosolids management.  NACWA also continues to highlight the importance of having a municipal wastewater treatment perspective for the hearing and has recommended Chris Westhoff, assistant city attorney and public works general counsel for the City of Los Angeles, as an expert witness.  NACWA will continue to work with WEF to ensure a balanced roster of witnesses for any hearing on biosolids before the EPW Committee.

Farm Bill

NACWA, Water Sector Urge USDA to Develop Sound Farm Bill Program Rules

NACWA and other water sector organizations, including the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), and the American Water Works Association (AWWA), met with officials from the Natural Resource Conservation Service (NRCS) to discuss implementation of the Agricultural Water Enhancement Program (AWEP).  NRCS is currently drafting implementing regulations for the AWEP program, which was created in the recently enacted 2008 Farm Bill.

The water sector groups want to ensure the NRCS regulations clearly state that public wastewater utilities are eligible partners to enter into agreements with farmers/producers on AWEP projects.  Although the legislative language in the Farm Bill lists “a unit of state or local government” as eligible – and public wastewater agencies would be included under this category – the water sector groups want NRCS to specifically list wastewater utilities in order to avoid any uncertainty.  NRCS staff noted that the statutory language in the bill clearly states that all funding must be distributed directly to farmers and producers and that the program should not be seen as an opportunity for non-agricultural groups to receive money from USDA.  However, wastewater utilities that partner with producers would benefit from AWEP programs, which could also enhance relationships between municipal utilities and the agricultural community.  The water sector groups are also seeking $60 million in annual funding for AWEP programs and a broad list of eligible activities under the program including priority water quality projects, such as nutrient controls and manure management initiatives.

In a July 17 letter to the NRCS, NACWA expressed support for the AWEP program and recommended areas in the rulemaking for revision or clarification.  The Association and the other water sector groups also signed on to a draft letter 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.  If your utility thinks it might be interested in such a partnership opportunity, please contact Susie Bruninga at sbruninga@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Funding

NACWA, Key Groups Continue to Push for Additional Water Infrastructure Investment

The U.S. Chamber of Commerce (USCC) and the National Chamber Foundation discussed the issue of deteriorating water infrastructure and its impact on the U.S. economy at a July 28 forum and indicated their support for more sources of funding to address the water infrastructure crisis.  The “Water Infrastructure: Why Congressional Action is Urgently Needed” forum brought together members of Congress and their staffs, senior industry representatives, and the media.  Panelists discussed the consequences of inaction, which will drastically impact U.S. competitiveness in the global marketplace, and, of significance, highlighted the business community’s growing focus on the need for new sources of revenue to repair aging infrastructure.  The event represents the chamber’s first foray into the water infrastructure funding arena.

David Havern, executive vice president and chief operating officer of USCC, pointed out that the United States has more than a million miles of water mains and that much of it continues to fall into disrepair due to neglect and age.  He focused on the need for federal support of public-private partnerships and the use of private activity bonds (PABs).  NACWA continues to believe that PABs cannot meaningfully address the funding gap for water and wastewater infrastructure challenges.  NACWA Board Member Jerry Johnson, general manager of the District of Columbia Water and Sewer Authority (DC WASA), and Dan Coody, mayor of Fayetteville, Ark., said cities must balance the competing demands of financing water and wastewater infrastructure needs with funding for health, education, and other city services and emphasized the need for the federal government to be a full partner in investing in water infrastructure.   Local governments currently fund about 95 percent of drinking water infrastructure and 98 percent of wastewater infrastructure.  Janine Benner, legislative director for Rep. Earl Blumenauer (D-Ore.) agreed that Congress should be providing between significantly increased funding to maintain drinking and wastewater systems.  She reiterated Blumenauer’s continued commitment to introducing a clean water trust fund bill this summer, but also noted that a suite of options should be considered in addressing the water infrastructure funding gap, including climate change legislation, an infrastructure funding bank, and a potential new stimulus package.

Meanwhile, NACWA took part in an infrastructure forum held July 22 at the Library of Congress in Washington, D.C., led by Rep. Blumenauer.   The forum brought together key leaders from across infrastructure sectors — highways, mass transit, aviation, and water — to engage in a dialogue about ensuring  that the issue of infrastructure is front and center in the upcoming elections.  Blumenauer emphasized his continued commitment to introducing a clean water trust fund bill and stated that House Speaker Nancy Pelosi (D-Calif.) is also committed to making infrastructure a legislative priority in the next Congress.  Blumenauer has also had several discussions with Sen. Barack Obama (D-Ill.), the Democrats’ presumptive candidate for president, about the importance of water infrastructure and is working to make infrastructure investment a campaign issue.  NACWA continues to work closely with Blumenauer on his trust fund legislation.