August 2007 Legislative Update

To: Members & Affiliates, Legislative Policy Committee,
Legal Affairs Committee, Clean Water Funding Task Force
From: National Office
Date: August 9, 2007

This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through August 9, 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 the web links in selected news items, or contact Susan Bruninga in NACWA’s Government Affairs Group at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/833-3280.

NACWA’s Bill Tracker provides a direct link to congressional websites where bill texts 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 & Funding

House Passes EPA Budget Bill that Blocks Permit Fees, Focuses on Climate Change

The U.S. House of Representatives passed its fiscal year (FY) 2008 budget package for EPA (H.R. 2643) in a 272-155 vote June 27, providing $8.1 billion for the agency. The bill leaves intact Appropriations Committee report language blocking a permit fee rule proposed by the U.S. Environmental Protection Agency (EPA). NACWA voiced its strong opposition to the proposed rule in comments submitted to EPA in March. The report language stated that “the Committee understands that the Agency received many negative comments during the comment period on the proposed rule. Therefore, the Committee urges the Agency to delay implementation of this program until the concerns are addressed. Until then, the Committee denies, without prejudice, the $5,000,000 request for the fees pilot program.” The proposal would have encouraged states to fund more of their National Pollutant Discharge Elimination System (NPDES) programs through user fees from permit applicants. NACWA was concerned the proposal would ultimately result in cuts to Section 106 funds used for Clean Water Act programs and worked with other groups in seeking legislative language to block the EPA plan.

The bill also provides $1.125 billion for the clean water state revolving fund (CWSRF) and $140 million in earmarked funds for specific water, wastewater, and stormwater projects. In addition, $50 million is included to create a Commission on Climate Change Adaptation and Mitigation. Of the total amount, $5 million would support the commission’s activity in reviewing science challenges related to adaptation and mitigation strategies necessitated by climate change and for identifying specific action steps to address these challenges. After this review but not later than July 1, EPA would transfer the remaining $45 million to other federal agencies with climate science responsibilities for implementing the commission’s recommendations.

It is unclear at this point how this effort might affect wastewater utilities, but EPA has increased its focus on the impacts climate change could have on water resources management. The Senate has not yet passed its version of the budget package, so the fate of these provisions remains uncertain until the House-Senate conference process is complete. Additionally, President Bush has threatened to veto the budget package in large part because of the increased funding for EPA, and the CWSRF in particular. Under the budget package passed by the Senate Appropriations Committee in June, EPA would receive $7.77 billion or $48 million more than in FY 2007. Only $887 million is provided for the CWSRF under the Senate bill. In addition, the Senate bill’s provisions on State and Territorial Assistance Grants (STAG) program does not include infrastructure projects in line with the House recommendations, but did include $204 million for States to use for non-point source control projects to improve water quality and reduce contamination. These projects and funding levels will be worked out in conference after the Senate passes its funding bills sometime this fall.

NACWA, WIN Continue Working with Key Senate Staff on SRF Reauthorization Bill

NACWA, and other Water Infrastructure Network (WIN) organizations continue to meet with key staff members to advocate for legislation in the Senate reauthorizing the clean water state revolving fund (CWSRF), similar to the Water Quality Financing Act of 2007 (H.R. 720) passed by the House in March. The House bill would provide $14 billion to the CWSRF over four years and require a Government Accountability Office (GAO) study of feasible revenue sources for a clean water trust fund.

Sen. Frank Lautenberg (D-N.J.), chairman of the Senate Environment and Public Works (EPW) Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality, is expected to introduce a bill sometime after the August break. The Senate has a number of issues to address in considering companion legislation. For one thing, because the Senate EPW Committee has jurisdiction over drinking water and clean water, some committee members want the legislation to provide funding for both. Sen. James Inhofe (R-Okla.), ranking member of the committee, is said to support this approach. Lautenberg’s staff, on the other hand, favors having two bills — one that would address the clean water SRF and one for the drinking water SRF. The inclusion of the Davis-Bacon prevailing wage provisions in the Senate bill is also expected to generate more controversy than in the House. NACWA continues to advocate for a bill that can be introduced with the support of the chairs and ranking members of the both the full committee and subcommittee. The House was able to forge this type of bipartisanship, which is why H.R. 720 passed with a strong 308-103 majority.

Meanwhile, a coalition of CWSRF program managers and members of the State/EPA Workgroup that oversees the SRF program sent a letter to Sens. Barbara Boxer (D-Calif.), chair of the Senate EPW Committee, and James Inhofe (R-Okla.), ranking member of the committee, expressing their opposition to H.R. 720. Their concern is that the House language imposes about 20 additional requirements that will make the SRF program less efficient and therefore less effective. “While these mandates may be suited to grant programs, they are now being attached to loan assistance without consideration of their cumulative burden,” the letter signed by 17 state water quality officials said.

Clean Water Act Jurisdiction

House Committee Hears Testimony on Waters of U.S. Bill; Feingold Introduces Bill

The House Transportation and Infrastructure Committee held two hearings July 17 and 19 on the Clean Water Restoration Act of 2007 (H.R. 2421), which seeks to clarify the definition of “waters of the United States.” Introduced by Reps. James Oberstar (D-Minn.), chairman of the House Transportation and Infrastructure (T&I) Committee, John Dingell (D-Mich.), and Vernon Ehlers (R-Mich.), the legislation would remove references to “navigable” waters from the Clean Water Act and replace them with “waters of the United States,” which would be broadly defined as “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams…mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” H.R. 2421 currently has about 170 cosponsors.

Those testifying at the two hearings included three former EPA administrators, who supported the bill’s aims. NACWA and current EPA officials, however, did not testify, and NACWA is still meeting with its committee leaders and other members to refine its position. Oberstar and his staff have been aggressively pursuing NACWA’s support for the bill.

Sen. Russ Feingold introduced a similar bill (S. 1870) July 25, which has 19 cosponsors, all of whom are Democrats. NACWA discussed the bill at its Legislative Policy Committee meeting at the Association’s summer conference in Cleveland and has received numerous substantive comments on H.R. 2421 in response to Legislative Alert 07-02. In addition, NACWA convened a meeting with representatives from other municipal organizations to address common concerns and ascertain whether a municipal coalition can stake out a position if certain criteria in the legislation are included. NACWA and other municipal groups have expressed concern that an expanded definition of “waters of the United States” could potentially subject stormwater impoundments, retention ponds used in wastewater treatment, isolated wetlands, effluent-dominated streams, and other treatment processes to Clean Water Act (CWA) permit requirements. Some members in the western United States are concerned that the bill would also extend CWA coverage to groundwater, which they say was never the intent of Congress. NACWA will continue to work aggressively with congressional offices to advocate for changes in the legislation that will alleviate concerns expressed by member agencies.

Farm Bill

NACWA, Coalition Build on Momentum in Farm Bill Advocacy Efforts

The U.S. House of Representatives passed the Farm, Nutrition, and Bioenergy Act of 2007 (H.R. 2419) reauthorizing the 2002 Farm Bill in a 231-191 vote July 27. NACWA and other water sectors organizations were successful in advocating for stronger measures aimed at improving water quality. Debate on the House floor was contentious after Democrats revised language passed by the House Agriculture Committee the previous week to include a tax on foreign corporations doing business in the United States to offset cost increases added to the bill. Meanwhile, an amendment by Reps. Ron Kind (D-Wis.), Paul Ryan (R-Wis.), Earl Blumenauer (D-Ore.) and Jeff Flake (R-Ariz.) that would cut back on subsidies to farmers and shift some of the spending to conservation programs, boosting their funding to $3 billion over five years, was defeated after a heated debate.

One of the highlights of the legislation is the new Regional Water Enhancement Program (RWEP), supported by NACWA, that would authorize $60 million annually from 2008-2012 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. The bill was revised in committee to target 50 percent of RWEP funds for projects outside of the Chesapeake Bay, the Klamath basin, the Everglades, and Upper Mississippi River Basin, which had been identified as priority areas. NACWA and other water sector groups had raised concern that other areas may be overlooked as a result of designating priority regions.

The RWEP program is designed for projects that focus on a specific geographical region such as a watershed or an irrigation, water, or drainage district; identify a water quality or water quantity issue of concern; and establish a method for determining a baseline assessment of water quality, water quantity, or other resource condition. In addition, priority will be given to projects that include the highest percentage of agricultural lands and producers in the area, have the best ratio of on-the-ground activities versus administrative costs, include performance measures that allow the effectiveness of the activities to be assessed once they are complete, capture surface runoff from farms through the construction, improvement or maintenance of irrigation ponds, have the highest likelihood of addressing issues of concern, and help producers meet regulatory requirements. The Senate is not expected to begin marking up Farm Bill legislation until at least September after work on reauthorizing the Water Resources Development Act (S. 1248) is complete.

Infrastructure

Senate Approves Legislation Establishing Commission to Study Infrastructure

The Senate approved by unanimous consent Aug. 2 legislation (S. 775) that would set up a commission to study the state of U.S. infrastructure. Introduced in March by Sen. Thomas Carper (D-Del.), the National Infrastructure Improvement Act of 2007 would look at the capacity of infrastructure improvements to sustain economic development and competitiveness; the age of infrastructure as well as the methods used to finance it and recommend ideas for developing a national infrastructure plan detailing national priorities. An amendment by Sen. Mark Pryor (D-Ark.) was included that would require the commission to consider non-structural, or green infrastructure, in its assessment.

The legislation gained footing in the wake of the tragic bridge collapse in Minneapolis, which drew attention to the dire situation of America’s aging and crumbling infrastructure, including that for water and wastewater.
The Minneapolis tragedy has helped shed light on the need to focus more attention and resources to repair and upgrade the vital infrastructure needed to maintain strong public health and environmental protections as well as economic well-being. Senate Majority Leader Harry Reid (D-Nev.) said on the floor of the Senate Aug. 2 that he hopes “we will take a look at our highways, bridges, dams, water systems, and sewer systems, and see if we can do something about this infrastructure that needs such attention.” NACWA will continue to advocate for a dedicated funding source in the form of a trust fund that will help municipalities maintain and improve their vital water and infrastructure. The Senate bill was referred to the House Transportation and Infrastructure Committee.

The House and Senate are on August recess until Sept. 4. This is an excellent time for NACWA members to contact their congressional representatives — while they are in their home districts — and set up meetings to discuss key issues of importance to the clean water community and to build relationships.