Clean Water Current- December 13
Congress Completes Water, Spending Bills to Wrap Up 114th Session
Congress wrapped up its work for the year over this past weekend, agreeing to fund the federal government through April, 2017 and passing a revised version of the Water Resources Development Act (WRDA). While the final WRDA package does not include many of the Clean Water Act (CWA) policy reforms from an earlier Senate version that NACWA and its members had supported, it does contain some positive developments for the municipal clean water community, and will set the stage for NACWA to help advance key CWA policy changes early next year.
In the early hours of Saturday, December 10, the Senate voted 78-21 to pass 2016 WRDA legislation. The final bill, now known as the Water Infrastructure Improvements for our Nation Act (WIIN), was passed by the House of Representatives on Thursday, December 8 with a 360-61 vote, and now awaits the President's signature. WIIN's passage came just a few hours after the Senate voted to pass a Continuing Resolution (CR) to fund the government through April 28, narrowly avoiding a government shutdown as the previous CR expired at midnight Friday. The CR essentially maintains Fiscal Year 2017 federal spending at Fiscal Year 2016 levels through April, postponing major appropriations decision-making until the new Congress and Administration are in place. These two pieces of legislation were the final major acts of the 114th Congress.
The Council of the District of Columbia unanimously approved the Nonwoven Disposable Products Act of 2016 last week, the first legislation in the U.S. to address the problems caused by flushable and non-flushable wipes. The legislation requires the District’s Department of Energy & the Environment (DOEE) to issue rules, in consultation with NACWA Member Agency, District of Columbia Water and Sewer Authority (DC Water), to establish “flushability” standards for flushable wipes and labeling requirements for non-flushable wipes. The definition of “flushable” used in the legislation is based on the international water industry position statement on wipes, which has been endorsed by more than 300 organizations in 23 countries, including NACWA and many of its member agencies.
A California state court issued a significant decision last week supporting the land application of biosolids, providing a major legal victory for NACWA members in the state and creating a strong legal precedent for land application that can benefit utilities nationwide.
The ruling in City of Los Angeles v. County of Kern struck down Measure E, a local voter initiative passed in 2006 that banned the land application of biosolids to farmland in Kern County, California. NACWA Member Agency, the City of Los Angeles led a coalition of Southern California public agencies, farmers, and contractors in the lawsuit to protect their longstanding use of biosolids as fertilizer and soil amendment on farms in Kern County. The City owns a 4,700-acre farm in Kern County, where it has grown feed crops with the aid of biosolids for more than 20 years.
NACWA members joined hundreds of public and private sector representatives in Miami last week for the 2016 American Water Summit. NACWA, along with the Association of Metropolitan Water Agencies (AMWA) and the National Association of Water Companies (NAWC), partnered with Global Water Intelligence to convene this year’s Summit, which explored opportunities for greater collaboration among the public and private sectors in the United States.
Public water executives from across the country participated alongside various other leaders, from consulting engineers, to technology vendors to leaders from investment communities. Ray Marshall, NACWA’s President and Executive Director of the Narragansett Bay Commission, provided welcoming remarks to begin the Summit. Marshall noted that President-elect Trump’s plans for increased investment in the nation’s infrastructure will no doubt require all parts of the water sector – public and private – to find ways to work together and take advantage of the opportunities that such federal investment would provide.
NACWA Board members George Hawkins, CEO and General Manager for DC Water; Kishia Powell, Commissioner for the City of Atlanta’s Department of Watershed Management; Andy Kricun, Executive Director and Chief Engineer for the Camden County Municipal Utilities Authority; and Karen Pallansch, CEO of Alexandria Renew Enterprises – along with other NACWA members – participated in key sessions throughout the meeting to explore new models for blending public and private expertise in achieving shared clean water goals.
EPA Administrator Gina McCarthy kicked off the second day of the Summit, noting there are both opportunities and challenges ahead for the country on water issues. She emphasized that “water is a nonpartisan issue;” and that involvement of the private sector will play an important role. McCarthy also focused on the importance of protecting source waters from the negative impacts of nutrients and other pollutants, and highlighted the innovative work that the public clean water sector is leading. During her remarks, she mentioned NACWA Member Agency, the City of Gresham, OR specifically for its work to become a net energy producer. McCarthy made no specific comments on the impact of a Trump Administration on the environment and the nation’s infrastructure, but expressed hope that increased infrastructure spending would be taken seriously.
NACWA published updated editions of two of its most popular and valuable legal resources last week, providing its members and the public clean water community with important new clean water legal tools.
NACWA’s Consent Decree Handbook, Wet Weather Consent Decrees: Strategies to Maximize Flexibility & Environmental Benefit, is the quintessential publication for utility managers and lawyers who are in the process of negotiating, modifying, implementing or terminating a consent decree. The Handbook has been revised and updated for 2016, including discussions of emerging enforcement trends and detailed examples and case studies, which will help utilities successfully navigate negotiations and come out ahead. Whether new to the consent decree process, living through implementation or modification, or nearing termination, the Handbook offers something for everyone.
The newly released whitepaper, Legal Considerations for Enacting, Implementing, & Funding Stormwater Programs: Navigating Litigation Floodwaters has also been revised and updated to include the latest, and highest value, information. Stormwater programs, and the fees necessary to fund them, are often the focus of opposition and litigation due to increasingly stringent regulatory requirements, and a lack of public appreciation for the need to manage stormwater. The publication provides an overview of the types of legal issues impacting municipal separate storm sewer systems (MS4s) and the outcomes of key cases to inform and prepare utilities that are creating, implementing or defending a stormwater program, utility or fee.
Both publications are free as a benefit of membership and are examples of NACWA’s continued commitment to providing the most valuable and effective clean water advocacy tools.
The U.S. Environmental Protection Agency (EPA) issued an interim final rule on December 6, establishing application guidelines for its new credit assistance program that was authorized by the Water Infrastructure Financing and Innovations Act (WIFIA); which Congress created in the 2014 Water Resources Development Act. Simultaneously, EPA issued a proposed rule for charging fees associated with processing applications, to receive financing under the WIFIA program. EPA will soon be seeking comment on both rules during a sixty day period beginning on the date that the rules are published in the Federal Register; this publishing is expected to occur before the end of this month.
Congress appropriated funding for the WIFIA program in the recently-passed Fiscal Year 2017 (FY17) Continuing Resolution, which funds the Federal Government through April as part of an emergency aid package to help the City of Flint, MI replace lead service lines in its drinking water system. NACWA expects EPA to issue a notice of funding availability once the FY17 funding becomes available.
Both the Interim Final Rule and the Proposed Rule for WIFIA application guidelines and processing fees together set out eligibility criteria, a two-step application process and pertinent fees; which EPA intends to use on applications for direct and guaranteed financing under the WIFIA program. In July, NACWA, along with other water associations, submitted comments to EPA regarding its public solicitation for input while the Agency was developing these guidelines. An important focus of these comments was on the fees that EPA plans to charge applicants. The proposed rule outlines five separate fees that EPA plans to charge, three of which are mandatory. The mandatory fees include: an initial application charge of $100,000 ($25,000 for small projects)—only for applications selected to proceed to full credit financing, a credit; a processing fee, which will depend on the time and resources required to process the application; and an annual servicing fee of between $12,000 to $15,000.
EPA agreed with NACWA’s comments to allow the initial application fee to be credited against the full credit processing fee. And while EPA did not accept NACWA’s recommendation to allow applicants to finance these fees, Congress—in recently enacted WRDA legislation—amended the WIFIA statute to require EPA to finance these fees upon request of an applicant. An interested applicant will be required to submit an initial letter of interest for WIFIA financing and, if selected, will then be required to submit a full application, at which point a non-refundable application fee will be charged. Applicants that are not selected to proceed to the full application stage will not be required to pay a fee.
NACWA members interested in submitting comments, please follow instructions contained in the released rule or contact Patricia Sinicropi, NACWA Senior Legislative Director.
NACWA hosted a December 5 conference call with the Association’s State & Regional Exchange Network and representatives from 15 state and regional clean water organizations, to share thoughts on the ramifications of recent elections. As part of the discussion, NACWA’s legislative team underscored what the Republican majorities in the House and Senate would mean for potential infrastructure packages and other national water priorities. NACWA’s regulatory team said that while EPA will be rushing to advance a number of regulations before the new year, EPA’s water program will likely not feel any significant effects from the change in administration, in the short term.
Both NACWA and the state organizations continue to focus on affordability issues, as highlighted by the Missouri Public Utilities Alliance’s (MPUA) recent rate survey, and NACWA’s planned efforts to evaluate a possible low income water assistance program. See slides from the call here.
The U.S. Water Alliance released an important report last week providing a roadmap on advancing the “one water” concept.
According to the report, anyone involved with the water industry understands that the issues facing our nation’s water supply are not only inherently complex, but also intrinsically linked with our daily lives; from the food we eat to the water that goes down the drain. This linkage is the central point of the U.S. Water Alliance’s, The One Water Roadmap: The Sustainable Management of Life’s Most Essential Resource, which seeks to create an innovative and inclusive mindset to the management of water resources. As direct managers of water, wastewater utilities figure prominently in the report.
The “Arenas for Action” section of the report parses a number of strategies for wastewater utilities, such as diversifying supply, utilizing green infrastructure and pursuing resource recovery, and it references several Utility of the Future initiatives by member utilities, such as DC Water’s Resource Recovery Program. With strategies and case studies from stakeholders representing several different industries, the complete report gives a comprehensive overview of ways various sectors of the economy can work together to build thriving, resilient communities and ecosystems.
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