This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through Nov. 13, 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

EPA Appropriations Showdown on the Horizon

Senate lawmakers are still a long way from concluding the fiscal year (FY) 2008 Interior-Environment appropriations bill that provides funding for the U.S. Environmental Protection Agency (EPA).  This summer, the full House debated and approved its version of the bill (H.R. 2643) by a vote of 272-155, providing $8.1 billion for EPA and $1.125 billion for the clean water state revolving fund (CWSRF).  Funding legislation (S. 1696) has only made it through the Appropriations Committee on the Senate side, which approved $7.7 billion for EPA and $887 million for the CWSRF.  The full Senate has not yet voted on the bill.  Both the House and Senate bills contain more than $27 billion in 2008 discretionary spending, $1 billion more than the current year and nearly $2 billion more than the President’s requested cut (see August Legislative Update).

This month’s battle over the Water Resources Development Act (WRDA, H.R. 1495), discussed in a following story, highlights President Bush’s willingness to veto bills he believes have too high a price tag.  The Bush administration has stated that these spending bills “include irresponsible and excessive funding and objectionable provisions.”  NACWA is working with key members of Congress to ensure funding levels for the CWSRF in the Senate bill will not fall to the President’s budget request of $687.6 million.  NACWA also continues to work with committee staff to include report language blocking a permit fee rule proposed by the U.S. Environmental Protection Agency (EPA) in the Senate bill (see October Legislative Update). 

Currently, federal agencies are operating under a continuing resolution that funds programs at FY 2007 levels through Nov. 16.  Congressional leaders have indicated that they expect to pass an additional continuing resolution, carrying through into December, to give appropriators enough time to finish work on either one large omnibus package or several smaller pieces of legislation — being called “mini-buses” — that combine multiple funding bills.

Key Members of the House Join NACWA in Push for a Clean Water Trust Fund

Rep. Earl Blumenauer (D-Ore.), a member of the House Ways and Means Committee, is leading the effort on behalf of a clean water trust fund.  He has been meeting with NACWA and WIN members to brainstorm ideas for bringing the trust fund to fruition and to identify viable funding sources.  These efforts helped lay the groundwork that culminated in a resolution (H.Res. 725) approved Oct. 16 by the House in voice vote.  Sponsored by Rep. Blumenauer, the resolution commemorates the 35th anniversary of the Clean Water Act and calls on Congress to “dedicate itself to working toward a sustainable, long-term solution to address the Nation’s decaying water infrastructure.”

H.Res. 725 is an indicator of lawmakers’ broad support for a new sustainable approach to clean water infrastructure funding and comes on the heels of the Water Quality Financing Act of 2007 (H.R. 720), which passed the House in March on a 303-108 vote and called for a U.S. Government Accountability Office (GAO) study of viable financial mechanisms for a clean water trust fund.  Blumenauer is also working with Oberstar on a letter to the GAO which would require a study of viable financial mechanisms for a trust fund.  This signifies that support for a trust fund is building and that the leadership in the House is prepared to move forward on a GAO study of potential financial mechanisms without waiting for similar legislation to be introduced and passed in the Senate.  To date, there has been no companion bill introduced in the Senate, but this month’s passage of WRDA has freed up Congress to work on water quality legislation that had stalled (see next story).

NACWA will continue to work closely with congressional staff and others on trust fund legislation to ensure full funding of the Clean Water State Revolving Fund (CWSRF) and provide direct grants for essential capital replacement projects.  For more on these efforts please refer to the October Legislative Alert (LA 07-04).

Presidential Veto of WRDA Overturned

For the first time in President Bush’s presidency, Congress voted to override a veto last week and approved the Water Resources Development Act (WRDA, H.R. 1495) , which Bush claimed was filled with unnecessary and costly projects.  The bill, which authorizes more than $23 billion for U.S. Army Corps of Engineers projects, including more than 100 projects totaling $794 million earmarked for wastewater and drinking water infrastructure projects, was originally presented to President Bush on Oct. 23 and is the first water system restoration and flood control authorization passed by Congress since 2000. 

Bush also opposed the bill because it authorizes direct funding for wastewater, drinking water, combined sewer overflow and mine cleanup projects that have traditionally only fallen under the purview of EPA.  With bipartisan support, the Senate overrode the veto by a vote of 79-14 two days after the House did the same in a 361-54 vote.  Although the override ensures these projects are authorized, it does not guarantee that they will be funded during the appropriations process.  NACWA will continue to work with Congress to ensure full funding for the wastewater projects authorized in WRDA.

Clean Water Act

NACWA Weighs in on Clean Water Act Jurisdiction Legislation

NACWA sent a letter Nov. 2 to Rep. James Oberstar (D-Minn.), chairman of the House T&I Committee, supporting the Clean Water Restoration Act of 2007 (H.R. 2421).  The bill seeks to eliminate the word “navigable” from the definition of waters of the United States and codify the regulatory definition of “waters of the United States.”  Decisions by the U.S. Supreme Court in Solid Waste Agencies of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, Rapanos v. U.S., and Carabel v. U.S. Army Corps of Engineers prompted Oberstar to clarify the definition. 

NACWA’s Board of Directors approved sending a letter consistent with an agreement NACWA negotiated with Oberstar to incorporate an exemption into the legislation that covers manmade waste treatment facilities.  This exemption is critical because it covers many of the concerns NACWA members raised regarding the bill’s potential extension of Clean Water Act jurisdiction to some manmade wastewater treatment systems such as ponds and lagoons and to some stormwater management approaches.  NACWA also understands that given Oberstar’s stated intent of returning the jurisdictional definition of waters of the United States to its pre-SWANCC status, groundwater would continue to be deemed outside the bounds of the act’s reach, should the legislation be passed into the law.  NACWA will also work closely with T&I Committee staff as it seeks to move the bill forward in the House to ensure that the legislative intent on issues of concern to NACWA members is clearly expressed on the record. 

As the letter states, “we understand and request that the record reflect that manmade stormwater retention and conveyance structures are included in this [the manmade waste treatment system] exemption.  In addition, we also understand that your legislation is not intended to affect the jurisdictional concerns regarding groundwater in any way and would like this to be reflected in the record as well. . . .  NACWA looks forward to working with you and the committee to advance the goals of the Clean Water Act in the future.” 

The T&I Committee scheduled a hearing on H.R. 2421 for Dec. 6, and NACWA will update its members on developments as they unfold.

Climate Change

Congress Continues to Focus on Cap-and-Trade Systems to Address Climate Change

Climate change continues to receive increased attention in the 110th Congress as a consensus grows among lawmakers that a comprehensive emissions trading system, otherwise known as a cap-and-trade program, is needed to curb the human impact on climate change.  These programs could affect wastewater treatment operators depending upon the method for allocating credits, whether credits would be auctioned or freely distributed, how credits may be saved or traded, and what type of credit is received for participating.

House Committee Releases White Paper Touting Cap-and-Trade Program

Several committees in the House and Senate are focusing on the issue, and in October, the House Energy and Commerce Committee released its white paper outlining what it envisions as the scope of a greenhouse gas cap-and-trade program.  Greenhouse gas emissions from wastewater treatment plants are included in the waste services component of the commercial sector, which accounts for six percent of all U.S. greenhouse gas emissions according to the paper.  While portions of the commercial sector could be included in a cap-and-trade program, the white paper indicates that the difficulty in measuring emissions from wastewater treatment plants accurately could limit their role in such a program.  Yet there may be opportunities to take advantage of wastewater treatment plant efforts to capture methane gas for electricity generation to create credits or offsets in a cap-and-trade program. 

Bipartisan S. 2191 Approved by Full Senate Environment and Public Works Committee

NACWA is following several pieces of legislation on its Bill Tracker that have been introduced during the 110th Congress employing this type of a cap-and-trade program.  The most recent, America’s Climate Security Act of 2007 (S. 2191), introduced Oct.18, by Sens. Joseph Lieberman (I-Conn.) and John Warner (R-Va.), was passed favorably Nov. 1 out of the Senate EPW Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection.  The bill was discussed at an Oct. 23 subcommittee hearing and is viewed as a bipartisan breakthrough.  Sen. Barbara Boxer (D-Calif.), chair of the Senate EPW Committee, wants to bring the bill to the Senate floor before a U.N. climate change conference begins in December.  S. 2191 directs EPA to develop a program to reduce emissions by covered facilities by 15 percent below 2005 levels in 2020.  The bill also would institute a mandatory cap requiring 70 percent reductions by 2050 on emissions from the electric power, transportation, and manufacturing sectors.  This is coupled with emissions trading provisions to help companies meet the cap at the lowest cost.  The cap is currently set high enough so as not to cover NACWA agency members, however, they would still be given the privilege of purchasing, holding, selling, or exchanging emissions allowances as this is not restricted to operators of covered facilities.

Farm Bill

Farm Bill Legislation Proceeds to Senate Floor with Increased Funding for Conservation

Legislation reauthorizing the 2002 Farm Bill for five more years with nearly $5 billion more per year in funding for conservation programs was approved by the Senate Agriculture, Nutrition and Forestry Committee Oct. 25.  The entire bill provides about $280 billion in spending for farm, nutrition, and other programs over five years.  The full Senate will actually consider a substitute amendment that contains the provisions approved by the Senate Ag Committee and legislation from the Senate Finance Committee providing about $12 billion in additional funding to help pay for Farm Bill programs, including $5.4 billion for conservation.   The Finance Committee bill gives farmers who receive cash payments for certain conservation programs the option of taking a tax credit instead.

Of particular interest to the clean water community are programs in the Farm Bill’s conservation title that are designed to benefit water quality.  The Regional Water Enhancement Program (RWEP), a new program wrapped into the Partnerships and Cooperation (P&C) section of the conservation title, lays out a framework for funding conservation projects involving multiple stakeholders.  Eligible projects include those that involve water quality, quantity, or conservation plans; groundwater recharge; stormwater capture; and other water-quality related activities.  NACWA has been working with a coalition of conservation and water sector groups to ensure that these provisions were included in the bill.  The House approved Farm Bill legislation (H.R. 2419) in July containing $60 million annually for RWEP.  The Senate version is slightly different in that it provides more discretion for the Agriculture Secretary in approving RWEP projects.  NACWA is working with its partners to strengthen the provisions in the Senate version and ensure adequate funding is available to undertake these cooperative projects.

The current Senate language limits RWEP funding to not more than 5 percent of all conservation title programs, which include the Environmental Quality Incentives Program (EQIP), the Wetlands Reserve Program (WRP), the Conservation Reserve Program (CRP), and others.  This would only amount to at most $30 million for RWEP, but NACWA and the coalition are working to have the provision changed to reflect that at least 5 percent of these funds shall be used for RWEP and are optimistic that during conference on the bill, money will be shifted to ensure RWEP will receive at least the $60 million approved by the House.  The current RWEP language also specifically names water and wastewater agencies as eligible partners.  Consideration of the legislation has been delayed while Senate leaders hammer out a plan for dealing with amendments during floor debate.  President Bush has already threatened to veto the Farm Bill because he said it is too costly.

Watershed Approach

NACWA Releases Watershed Report during House Clean Water Act Anniversary Hearing

NACWA President Christopher M. Westhoff, assistant city attorney and public works general counsel for the City of Los Angeles, testified Oct. 18 before the House Transportation and Infrastructure (T&I) Committee at a hearing on the 35th anniversary of the Clean Water Act and announced a report with recommendations from NACWA’s Strategic Watershed Task Force, Recommendations for a Vital and Viable 21st Century Clean Water Policy.  The report details how a watershed approach could improve the nation’s waters and meet the water quality challenges of the 21st century.  Westhoff warned that while a watershed approach will help prioritize investments and resource allocations, “a return to a sustainable federal-state-local partnership to bridge the funding gap is desperately needed,” and that “without a long-term clean water trust fund, clean water agencies will be hard-pressed to carry out their important mandate to protect the environment and public health in a sustainable manner.”  The testimony was well-received as other witnesses discussed future solutions to 21st century challenges, including the need for a watershed approach as well as a greater reliance on natural or “green” infrastructure techniques. 

Rep. James Oberstar (D-Minn.), chairman of the committee, warned that while “we have seen these [water quality] improvements, I will caution that our work is not complete.  One-third of our waters do not meet standards we set 35 years ago.  Our infrastructure is aging and the investments do not meet needs or demands.” 

House Hearing on Establishing Water Commission Touts Watershed Approach

With long-term aridity facing much of the nation, water resource issues are a growing concern in Congress.  Dry conditions have led to hearings about maintaining adequate water supplies and on Nov. 8, the House Subcommittee on Water Resources and Environment heard testimony on steps to mitigate the current problem and prepare for future water demands.  The panelists focused primarily on H.R. 135, the Twenty-First Century Water Commission Act of 2007.  Introduced by Rep. John Linder (R-Ga.) and modeled after the 1968 National Water Commission Act, the bill would establish a 21st Century Water Commission to provide recommendations for a national comprehensive water strategy over the next 50 years.  The commission's recommendations would be based on their assessments of current water management plans while incorporating future water supply and demand with the aim of protecting the environment and the economy. 

During his testimony, Rep. Linder asked the committee not to wait for a national water scarcity crisis to occur because “our water resources will be utilized to their fullest capacity in the coming decades, and current water supplies will prove inadequate.”  Other witnesses were skeptical of the bill because they believe its focus is too narrow and called for a comprehensive look at both water supply and water quality issues.  Subcommittee Chair Eddie Bernice Johnson (D-Texas) assured them that, “This commission would study current federal, state, and local water resources management programs and activities, and ensure that the nation is adequately prepared to meet the water supply, water quality, and water resources demands of the next 50 years.”  Subcommittee members from the Great Lakes basin such as Rep. Vernon Ehlers (D-Mich.) were also skeptical, saying the bill could be a precursor to a national water management policy allowing inter-basin water transfers. 

Notably, members of the subcommittee and the panelists all agreed on the need for a comprehensive watershed approach to water resource planning along the lines of NACWA’s Strategic Watershed Task Force Report, Recommendations for a Vital and Viable 21st Century Clean Water Policy.  They established that the approach should not be limited to just water supply needs but takes a comprehensive view of all the water resources activities in a watershed.  NACWA will continue to work with key members of Congress to accelerate this view and garner additional support for a holistic watershed approach.

Wet Weather

NACWA Testifies on Sewer Overflow Notification Bills in House

During what was a busy week for Congress surrounding the 35th anniversary of the Clean Water Act, NACWA Treasurer Kevin Shafer, executive director of the Milwaukee Metropolitan Sewerage District (MMSD), testified before the House T&I Subcommittee on Water Resources and Environment Oct. 16 at a hearing on the Raw Sewage Overflow Community Right-to-Know Act of 2007 (H.R. 2452).  The bill, introduced by Rep. Tim Bishop (D-N.Y.), would mandate monitoring and notification requirements for all sewer overflows.  Sen. Frank Lautenberg (D-N.J.) has introduced a companion bill in the Senate, the Sewage Overflow Right-to-Know Act of 2007 (S. 2080), which contains similar requirements.  A detailed analysis of the legislation can be found in NACWA’s Oct. 5 Legislative Alert (LA 07-03). 

Shafer’s testimony focused primarily on local and state sewer overflow monitoring and reporting programs while describing how many municipalities, including Milwaukee, are already exceeding the requirements set forth in H.R. 2452.  He said that NACWA would prefer to see any monitoring and reporting requirements as part of a comprehensive sanitary sewer overflow (SSO) policy developed by EPA.  He also stressed that “a renewed partnership between the federal state and local governments is important to make sure that what is proposed actually helps solve the problem,” and that “to further help cities address wet weather and other critical clean water infrastructure challenges, Congress should establish a national clean water trust fund.”  Other witnesses at the hearing agreed that in general, the public has a right to know about overflows that could affect their health.  The witnesses, however, differed over some of the bill’s specific provisions.  For example, Benjamin Grumbles, EPA’s assistant administrator for water opposed the use of the Clean Water State Revolving Fund (SRF) to pay for such activities.  “The SRF can only be used for capital projects and not for operations and maintenance,” Grumbles said. “To do so would reduce the capital available for water infrastructure construction while providing no additional benefit.”  Grumbles also discussed the fact that monitoring and notification regimens are already part of EPA’s combined sewer overflow policy and SSOs are addressed through guidance documents to permit writers. 

NACWA is holding meetings with American Rivers, the primary supporters of the bill, in an effort to make a joint recommendation for potential changes to the legislation.  These would have to address NACWA member concerns and will be discussed with appropriate Committee staff in the event the bill moves forward.

Bill to Reauthorize BEACH Act Approved by House T&I Committee

The House T&I Committee unanimously approved the Beach Protection Act of 2007 (H.R. 2537) Oct. 31, and reported the bill to the full House.  Introduced by Reps. Frank Pallone (D-N.J.) and Brian Bilbray (R-Calif.), H.R. 2537 would reauthorize the Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000 for fiscal years (FY) 2008-2012.  The BEACH Act requires EPA to work with states to ensure they use the latest science to set up comprehensive monitoring and notification programs for beach waters in order to provide up-to-date information on the condition of all public beaches and provides grants to assist states in this effort. 

H.R. 2537 would increase funding for grants from $30 million annually to $40 million, and states would be required to use the money to develop and implement rapid testing methods, which can detect water contamination in two hours or less.  In addition, the grants would be used to track sources of beach contamination, enhance public notification of beach contamination through a publicly accessible and searchable global information system database, and develop measures to ensure closures or advisories are issued within 24 hours after the state verifies that coastal waters do not meet water quality standards for pathogens.  If this legislation passes, it could influence some of the issues being litigated in the related NRDC v. EPA case, in which NACWA is an intervener.  For a detailed analysis please refer to the November Legislative Alert (LA 07-05). 

Companion legislation introduced in May by Sen. Frank Lautenberg (D-N.J.), S. 1506, has been referred to the Senate Committee on Environment and Public Works (EPW), but there is no timetable for action in the Senate.  NACWA will continue to work with staff in both the House and Senate to ensure any member concerns are addressed and funding levels are approved at the $60 million figure currently used in the Senate bill.

New Legislation to Watch

This section of the Legislative Update will provide an overview new legislation introduced within the past month that could impact NACWA member agencies.  These bills will be included and followed on NACWA’s Bill Tracker, but please let the Association know if what you are looking for is not included here or if you have comments on a particular piece of legislation listed below and additional information is needed. 

S. 2156: SECURE Water Act, Sen. Jeff Bingaman (D-N.M.)
Introduced on Oct. 4, the bill has been referred to the Senate Committee on Energy and Natural Resources.  There is no timetable for congressional action.  The purpose of the legislation is to increase water use efficiency, expand data acquisition and analysis of the nation’s water resources, and enhance the understanding of climate change impacts on water availability and energy production in the U.S.  The bill looks to obtain a clearer picture by providing for improved data collection and analysis of water through an expansion of the National Streamflow Information Program and the development of a systematic groundwater monitoring program.  It also directs the U.S. Geological Survey to formally establish a water use and availability assessment program.  The Bureau of Reclamation is also required to initiate a climate change adaptation program to develop strategies and conduct feasibility studies to address water shortages.  Finally, an intra-governmental panel is created to link the scientific community and water managers to improve water availability forecasts and implement adaptation strategies.  Accordingly, the Bureau of Reclamation is authorized to provide financial assistance to states, tribes and local entities to construct improvements or take actions to increase water-use efficiencies that respond to drought, climate change and other water-related crises.

H.R. 3896: The National Infrastructure Development Act of 2007, Rep. Rosa DeLauro (D-Conn.)
The legislation was introduced on Oct. 18, and referred to the Committee on Transportation and Infrastructure as well as to the Committees on Financial Services and Ways and Means.  No congressional action is scheduled in any of the three committees with jurisdiction.  Generally, the bill would establish:

• A National Infrastructure Development Corporation to identify new sources of financing available for the development of infrastructure facilities and to facilitate the use and issuance of public benefit bonds;
• A subsidiary of the corporation, the National Infrastructure Insurance Corporation, to issue insurance, reinsurance, and related undertakings regarding the issuance of obligations related to the development of infrastructure facilities; and
• A category of financial instrument to be known as `public benefit bonds' designed to help facilitate pension plan investment in the development of infrastructure facilities.