This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through Dec. 20, 2007, provides information on the activities of the 110th Congress that are of interest to the nation’s clean water agencies.  For more detailed information regarding NACWA activities related to specific legislation, click on web links in selected news items, or contact Susan 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 or 202/833-3280.

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

Appropriations and Funding

House, Senate Pass Omnibus Budget that Cuts the CWSRF, Blocks Permit Fee Proposal

In an effort to complete work on fiscal year (FY) 2008 funding for federal government agencies before the end of the year, lawmakers agreed to roll the 11 remaining appropriations bills into one omnibus package, granting President Bush most of his requested spending cuts.  Taking one of the biggest hits in the last-minute deal is the Clean Water State Revolving Fund (CWSRF), which would be funded at $689 million, just above the Bush administration’s request of $688 million, and a steep drop from the $1.1 billion approved in FY 2007.  The CWSRF is included in the budget for the U.S. Environmental Protection Agency (EPA), which would receive $7.6 billion in the deal.  Also included in EPA’s budget is $133 million in earmarked projects mostly for clean water and drinking water infrastructure.  No funds were included for the National Biosolids Partnership, despite efforts by NACWA, the Water Environment Federation (WEF), and others to have them included.  NACWA will be working with EPA to discuss funding options for the NBP for FY 2008 and will work to have congressional funding resume in FY 09.

NACWA Scores Victory on Permit Fee Provision
Language, however, was included in the omnibus bill that blocks a proposal by EPA that sought to encourage states to fund more of their National Pollutant Discharge Elimination System (NPDES) programs through user fees from permittees. NACWA submitted comments on the proposal outlining its concerns that the plan would ultimately result in cuts to Section 106 funds used for Clean Water Act programs and worked with other groups to obtain the legislative language blocking the EPA plan.

NACWA Gears Up for FY 2009 Budget Battle

NACWA expects another difficult and hard-fought budget debate for FY 2009 and is already gearing up for it.  For example, NACWA is joining fellow members of the Water Infrastructure Network (WIN) on a letter being sent to the White House Office of Management and Budget (OMB) by Sens. Jon Tester (D-Mont.) and George Voinovich (R-Ohio) urging the Bush administration to request more funding for the CWSRF in FY 2009.   That letter will be posted on NACWA’s website once it becomes available.  NACWA also believes that as funding for the CWSRF declines, the trust fund approach will garner momentum as a method of taking federal funding for clean water infrastructure out of the annual appropriations process.

NACWA Continues to Urge the Senate to Introduce CWSRF Bill

NACWA continues to work with Senate staff on a CWSRF reauthorization bill similar to H.R. 720, which passed the House in March and would provide $14 billion over four years for the program.  The Senate has not yet offered a companion bill, but staff on the Senate Environment and Public Works (EPW) Committee said that legislation could be introduced before Congress breaks for the holidays, though at this point such action seems unlikely.  NACWA sent out a Legislative Alert 07-6 last week urging members to contact their senators in support of such a bill, especially as Senators return to their home districts for recess.  Please forward to NACWA’s Byron DeLuke at bdeluke@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it any letters your agency sends out for our records.  Efforts to get a CWSRF reauthorization bill introduced and passed in the Senate continue to be a NACWA priority as a means for obtaining funds in the short-term.

Senate Approves Farm Bill, Moves to Conference

The Senate passed its version of the Farm Bill reauthorization, known as the Food and Energy Security Act of 2007, Dec. 14 in a bipartisan vote of 79-14, sending the legislation to a House-Senate conference in January.  Included in the $288 billion, five-year farm bill is a $4.8 billion increase in funding above current levels for conservation programs that directly affect water quality.

The bill incorporates most of the elements of the Regional Water Enhancement Program (RWEP), with the significant exception that funding for the program is discretionary.  NACWA worked with other water sector and conservation organizations to have RWEP included in the Farm Bill reauthorization.  The House bill, passed in July, authorized RWEP as a separate program with $60 million annually from 2008-2012.  RWEP provides for cooperative agreements between the U.S. Department of Agriculture (USDA), agriculture producers, and other entities including local government units, to improve regional water quality or quantity in certain areas selected by USDA and targets up to half of its funds to projects in the Chesapeake Bay, Klamath Basin, the Everglades, and Upper Mississippi River Basin, leaving the rest for projects in other watersheds (see August Legislative Update).

The Senate version of the Farm Bill incorporates RWEP-like provisions in the Partnerships and Cooperation section.  The provisions allow water systems to partner in RWEP projects, but provide no mandatory funding.  Rather, they stipulate that USDA “may” establish the program and shall not use more than 5 percent of Conservation Title money to fund it.  This provides discretion to USDA to spend as much as $250 million per year, but leaves open the possibility that no funding will be made available.  NACWA and its partners will work with the conference committee members to strengthen the language to ensure this valuable partnership program is established and has adequate funding.

In addition, the Senate bill provides $2 billion over five years for the Conservation Security Program (CSP) that was first authorized in the 2002 Farm Bill.  The new CSP (to be called the Conservation Stewardship Program) would allow 13.3 million acres to be enrolled each year through a continuous, nationwide enrollment opportunity and a ranking system to ensure strong natural resource and water quality outcomes.  The bill also gives the highly successful Wetlands Reserve Program (WRP) a new $2 billion to restore agricultural wetlands during the next five years and increases funding for the Environmental Quality Incentives Program (EQIP) and the Grassland Reserve Program (GRP). 

The Farm Bill legislation faces a tough fight in conference and then, potentially, from the Bush administration, with President Bush pushing to limit some conservation funding.  In a press release, acting USDA Secretary Chuck Conner said the bill is “fundamentally flawed”, “does not represent fiscal stewardship and lacks farm program reform.  Unless the House and Senate can come together and craft a measure that contains real reform, we are no closer to a good farm bill than we were before today’s passage.”

The Senate’s strong support for its bill indicates however that there could be enough support in that chamber to override a presidential veto, which takes a two-thirds majority vote from both the House and Senate.  The House passed its farm bill in July by a narrower margin of 231-191.  NACWA will continue to work with its partners as the farm bill moves through conference committee to strengthen those provisions in the legislation, including RWEP, which benefit water quality.

Biosolids

NACWA Weighs in on California Senator’s Request to EPA for Biosolids Information

NACWA sent a letter (PDF) on Nov. 14 to Sen. Barbara Boxer (D-Calif.), chair of the Environment & Public Works (EPW) Committee, supporting municipal biosolids management practices and addressing concerns she raised regarding the safety of biosolids.  Boxer’s concerns were detailed in a letter (PDF) she sent to EPA stating that the EPW Committee “has a long-standing interest in ensuring health and environmental protections from potential threats posed by biosolids.”  Her letter specifically cites concerns with a Sept. 14 EPA rule approving biosolids application on public lands — a policy NACWA supported.  The letter also generally uses the term “sludge” instead of biosolids and points to unnamed studies since 2002 raising “potential concerns” with reproductive impacts of land-applied biosolids and other health effects caused by potentially “radioactive sludge.”

The letter asks EPA to provide the EPW Committee with information on the actions that the agency has planned, initiated, or completed to investigate or address potential threats from biosolids since FY 2002; the number of employees devoted to these activities; and copies of any proposed, draft, or completed studies on biosolids, including any studies of potential exposures to biosolids and possible risks.  Boxer also seeks information on funding and staffing for EPA enforcement activities related to biosolids, including the type, number, location and status of inspections and enforcement actions that EPA has planned, initiated, or completed since FY 2002.

In its draft response to Senator Boxer, EPA provides detailed responses to each of the Senator’s requests, providing key information on the safety of EPA’s biosolids program.  NACWA has contacted Boxer's office to gather further information on what prompted the Senator’s letter and also whether any follow-up actions, such as a hearing on this issue, are anticipated.  NACWA will provide members with additional information as it becomes available.

Climate Change

Senate Environment Committee Approves Lieberman-Warner Climate Change Bill

Climate change legislation, America's Climate Security Act (S. 2191), was approved by the Senate Environment and Public Works (EPW) Committee Dec. 6 in a 11-8 vote after nine hours of debate.  The act, sponsored by Sens. Joseph Lieberman (I-Conn.) and John Warner (R-Va.), is aimed at reducing U.S. greenhouse-gas emissions through a cap-and-trade system that would penalize businesses for emitting high levels of greenhouse-gases and reward lower emitting facilities.  Compliance costs will be reduced by allowing companies to buy or trade credits to meet their emission limits or to generate credits by working with businesses, farmers, and others not covered by the limits to reduce their emissions or sequester carbon.

NACWA has been tracking action on the bill closely because its provisions on climate change mitigation and response through wetlands and other natural systems including green infrastructure may affect member agencies.  NACWA will continue to work with the committee to ensure that revenue raised through the bill will be directly tied to these conservation measures.  The establishment of a cap-and-trade system could also affect the clean water community based on how credits are allocated or distributed, how they may be saved or traded, and how entities may receive credit for participating in environmentally-beneficial projects such as green infrastructure.

NACWA White Paper, Climate Change Forum Focus on Role of Clean Water Agencies

The impacts climate change legislation and any potential regulations may have on clean water agencies are explored in NACWA’s Climate Change:  Emerging Issues for Clean Water Agencies (PDF) white paper.  The white paper provides background that will allow members to engage in climate change discussions and advocate for the interests of clean water agencies.  More information about the white paper is contained in Member Update 07-20.

The white paper also served as the backdrop for discussions at the 2007 Water Sector Forum on Climate Change held in Albuquerque on Dec. 4-5.  Sponsored by NACWA, the Association of Metropolitan Water Agencies (AMWA), the Water Environment Federation (WEF), and the Western Coalition of Arid States (WESTCAS), the forum attracted more than 45 utility and national organization representatives to discuss climate change legislation and the impacts of climate change on water quantity and quality. A summary of the discussions will be available to members next month.

A focus of the Forum was on pending legislation in Congress and the need for the water sector to impact these efforts and ensure that the interests of clean water agencies are heard.  Greg Adams, Co–Chair of NACWA’s Air Quality and Climate Change Committee, provided an in-depth analysis of current legislation.  He discussed how utilities could benefit from cap and trade programs as well as potentially onerous requirements that could be part of bills as they progress through Congress.

NACWA will continue to follow climate change issues in the coming year and track this bill as it moves through Congress.  At this point, no date has been set for Senate floor debate on S. 2191.

Clean Water Act Jurisdiction

NACWA Voices Concerns on Bill Seeking to Redefine Waters of the U.S.

NACWA continues to work with congressional staff to help shape legislation intended to clarify the scope of the Clean Water Act’s jurisdiction by codifying the regulatory definition of “waters of the United States.”  On Dec. 13, NACWA sent a letter (PDF) to Sen. Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works (EPW) Committee, as EPW held a brief hearing on how recent U.S. Supreme Court decisions affected the implementation of certain provisions of the Clean Water Act.

The letter cites an agreement (see November Legislative Update) negotiated with Rep. James Oberstar (D-Minn.), chairman of the House Transportation and Infrastructure Committee and sponsor of the House bill, Clean Water Restoration Act (H.R. 2421), the seeks to clarify the CWA’s jurisdiction.  Under the agreement, manmade waste treatment facilities would be exempt from the new definition of “waters of the United States.”  In its letter to Boxer, NACWA also referenced several other key concerns such as the potential inclusion of manmade stormwater systems and groundwater, and urged the committee to incorporate them into companion legislation, The Clean Water Restoration Act of 2007 (S. 1870) offered by Sen. Russ Feingold (D-Wis.).

Senate EPW has not yet set a timetable for consideration of S. 1870 but NACWA will continue to follow the legislation and work with the Committee to ensure that the vital man-made wastewater systems exemption is included in the legislation.

Dental Amalgam

NACWA Comments on Dental Amalgam Discharge Reductions

In a Nov. 21 letter (PDF) to Rep. Dennis Kucinich (D-Ohio), NACWA discussed the efforts clean water agencies have undertaken to reduce levels of mercury in wastewater effluent and biosolids.  Kucinich chairs the House Oversight and Government Reform Subcommittee on Domestic Policy, which held a hearing Nov. 14 on the environmental and public health risks associated with the use of dental amalgam, which contains mercury. While NACWA did not testify at the hearing, the issue of mercury discharged to wastewater treatment plants remains a major focus for the Association.  “Preventing mercury from reaching our nation’s precious waterways is a top priority for NACWA member agencies,” NACWA’s letter said. “While NACWA members themselves are not the sources of mercury contamination, they take seriously their role as environmental stewards to ensure the removal of as much mercury as is feasible from wastewater discharged to them by residential, commercial, and industrial sources.”

NACWA emphasized source control as the most effective method for reducing mercury discharges because of the technical challenges and expense of removing mercury from wastewater.  Many member agencies have successfully worked with their local dentists on strategies to curb mercury discharges to publicly owned treatment works (POTWs), ranging from voluntary best management practices (BMPs) to mandatory installation of amalgam separators.  NACWA pointed out that other sources of mercury, such as air deposition, continue to contribute to mercury levels in the nation’s waters and these sources must also be addressed for significant reduction of mercury levels in water.  NACWA does not expect any action in Congress but will continue to track this important issue.

Security

Draft Chemical Security Bill Could Remove Clean Water Agency Exemption

Draft legislation on security regulations at chemical plants was the main topic at a House Committee on Homeland Security hearing held Dec. 12.  The legislation is currently being drafted by the committee and would make permanent the chemical security regulations published by the U.S. Department of Homeland Security (DHS) in April.  A copy of the draft bill is not publicly available, but NACWA continues to take part in discussions with Committee staff over its content and has made the draft legislation (PDF) available for its members.

Under the existing law, which expires in 2009, clean water and drinking water agencies are exempted from requirements placed on chemical facilities.  Under the draft legislation being considered, public agencies would no longer be exempt.  NACWA member agencies could be subject to the requirements of the bill if they meet certain threshold criteria, such as their proximity to population centers, their size, and the types of chemicals they store.  These “high risk” facilities would have to submit vulnerability assessments to DHS instead of just to EPA, as is the current practice, and would be forced to implement facility security plans approved by DHS based on these assessments within three years of the promulgation of the new regulations.  Also of significant concern are provisions calling for the potential replacement of current technologies with what the legislation is calling “methods to reduce the consequences of a terrorist attack,” a new phrase for what has been previously referred to as “inherently safer technologies (IST).

NACWA and representatives from other water sector organizations met with minority staff on the Homeland Security Committee Dec. 17 to discuss their concerns with the draft legislation.  NACWA believes that any forthcoming legislation must adequately acknowledge all the actions that facilities have already taken and would prefer Congress give more time for the existing DHS program to be implemented before making changes.  NACWA also continues to express its belief that it is inappropriate to lump public sector facilities alongside private sector industry and that an exemption for these public facilities is warranted.  Republican staff members have said, however, that as the minority they no longer feel confident in their ability to successfully incorporate the exemptions for clean water agencies and drinking water facilities into the bill, nor do they think they can strip out the IST provisions.  NACWA will continue to work with both Democratic and Republican Committee members to incorporate these exemptions into the legislation as it is developed in 2008.  Committee Chairman Bennie Thompson (D-Miss.) has said he plans to introduce the bill in early 2008 and NACWA will continue to engage the Committee to ensure its members concerns are addressed.