ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
Hill Developments: Trump Cabinet Nominee Hearings Begin, Congress Names Key Committee Members
Capitol Hill was buzzing with activity during the second week of the 115th Congress, as hearings got underway for President-Elect Trump’s cabinet nominees. Congress held hearings for seven nominees including Elaine Chao for Transportation Secretary and Sen. Jeff Sessions (R-AL) for U.S. Attorney General. Hearings were also held for the President-elect’s nominees for the Departments of State, Defense, Homeland Security, Housing & Urban Development, and the Central Intelligence Agency. Meanwhile, House and Senate Committees continued to unveil their membership and leadership positions for the 115th Congress.
Among the numerous committee membership announcements: The House Transportation & Infrastructure Committee (T&I) announced new members including GOP Reps. Weber (R-TX), LaMalfa (R-CA), Westerman (R-AR), Smucker (R-PA), Mitchell (R-MI), Faso (R-NY), Ferguson (R-GA), Mast (R-FL), and Lewis (R-MN). New Democratic T&I members include Reps. Johnson (D-GA), Wilson (D-FL), Payne Jr. (D-NJ), Lowenthal (D-CA), Lawrence (D-MI), and DeSaulnier (D-CA). The Senate Environment & Public Works (EPW) Committee also named several new members, including newly-elected Democratic Sens. Duckworth (D-IL) and Harris (D-CA), and Republican Sen. Ernst (R-IA). The newest House Appropriations Committees members now include Republican Reps. Moolenaar (R-MI), Newhouse (R-WA) and Taylor (R-VA) and Democratic Reps. Meng (D-NY), Pocan (D-WI), Clark (D-MA), and Aguilar (D-CA).
NACWA staff are working to reach out to new members of these key committees, which hold jurisdiction over clean water legislative and funding issues. And we encourage all NACWA members to reach out the representatives in their home districts and to meet with them during the Water Week Policy Forum and Fly-In taking place March 21-22.
EPA and the Environmental Council of the States (ECOS) hosted a meeting January 11 and 12 in Washington, DC to explore financial tools and approaches that can help communities-in-need make the necessary investments in their water and wastewater infrastructure. Experts from all levels of government, including municipal water and wastewater providers, the private sector and the foundation community, were invited to discuss available funding sources, local-level financing and funding strategies. They also discussed approaches that better enable utility access and readiness for funding, and the role of private funding and financing.
NACWA’s Air Quality Workgroup and EPA discussed the Agency’s proposed updated National Emissions Standards for Hazardous Air Pollutants (NESHAP) for publicly owned treatment works (POTWs) during a conference call on January 11. The proposed rule was published in the Federal Register on December 27, 2016, and comments are due on February 27 of this year. EPA has identified six wastewater treatment facilities as subject to the POTW NESHAP, but additional POTWs may also be subject to the rule if they are a major source of hazardous air pollutant (HAP) emissions, or treat wastewater to comply with another NESHAP.
The US Supreme Court granted an industry petition January 13 to review the February 2016 Sixth Circuit Court of Appeals' decision that it has jurisdiction to hear legal challenges to the Clean Water Rule, often referred to as the “Waters of the United States (WOTUS)” rule. The Supreme Court’s review will focus solely on the procedural question of the appropriate venue to review the final rule – it will not examine or decide the merits of the underlying rule.
The EPA and the US Army Corps of Engineers (Corps) released the final rule in May 2015, which is intended to clarify and, some argue, to redefine and expand - the scope of “the waters of the United States” subject to protection under the Clean Water Act (CWA). The rule has consumed much of EPA’s time over the last several years and has been the focus of intense controversy from a range of stakeholders, the majority of states, and Members of Congress.
The rule was immediately challenged in several jurisdictions. The litigation pending in the Sixth Circuit is a multi-circuit case consisting of numerous consolidated petitions and will examine the merits of the rule. It is unclear at this point whether the Sixth Circuit case will proceed pending Supreme Court review of the procedural/jurisdictional queries. But the US Department of Justice filed its initial merits brief with the Sixth Circuit on January 13 as well.
Opponents of the rule prefer resolution by district courts, while proponents prefer the appellate court. Following the Sixth Circuit’s February 2016 decision, district courts across the country have dismissed challenges to the rule on jurisdictional grounds (see Southern District of Ohio, Northern District of Oklahoma, and the District of Arizona). However, in the District of North Dakota, the August 2015 order finding jurisdiction and enjoining the Clean Water Rule stands.
The Supreme Court’s decision to hear the matter is a win for opponents because it will likely allow litigants to delay further merits briefing before the Sixth Circuit and give more time for the Trump Administration to address the rule before a decision is rendered by a court. Oklahoma is one of the states challenging the rule. Oklahoma Attorney General Scott Pruitt, who will lead the EPA if confirmed by the Senate, has indicated that he will vacate the rule. Pruitt could request that the court grant a voluntary remand to EPA, which would allow the administration to resolve the matter by repealing or revising the regulation. However, there may be Administrative Procedure Act challenges to that approach. In the alternative, Congress could pass a bill to vacate the regulation.
In the interim, EPA and the Corps are using recently issued Regulatory Guidance Letter (RGL) 16-01 to make CWA jurisdictional determinations. NACWA will continue to track developments around the rule and the litigation, and will provide updates as necessary to the membership.
EPA has published a list of career staff that will be serving in an acting capacity as senior managers, until new political appointees from the Trump Administration are confirmed to key positions. Although President-elect Trump’s nominee for EPA Administrator, Scott Pruitt, has a confirmation hearing scheduled for January 18 (see related article), it is not clear when a confirmation vote on his nomination will occur. Additionally, no nominees for other political positions at EPA have been announced.
As expected, Mike Shapiro, Principal Deputy Assistant Administrator for the Office of Water, will be leading that office until a new Assistant Administrator for Water is confirmed, or until the Trump Administration places another individual into a leadership position. NACWA has a very good working relationship with Shapiro and will continue engaging with him and his staff on a number of critical regulatory issues during the transition period as appropriate. The EPA memo also identifies which individuals will be leading the various Regional offices in an interim capacity.
NACWA will continue actively tracking any new political appointments to EPA, including potential nominees to lead the Office of Water, and will keep the membership updated on developments.
The Senate Environment & Public Works Committee (EPW), which has jurisdiction in the Senate over the Clean Water Act, is preparing for next week’s scheduled nomination hearing for Scott Pruitt, President-elect Trump’s nominee to serve as Administrator of the Environmental Protection Agency (EPA). The hearing, scheduled for Wednesday, January 18, is anticipated to be closely scrutinized and politically charged.
Mr. Pruitt has served as Attorney General of the State of Oklahoma since 2010. During his tenure, he has joined with other states and the energy industry in lawsuits against EPA’s Clean Power Plan, EPA’s methane regulations for the oil and gas sector, and other EPA rules. Unsurprisingly, his nomination has raised alarm among Democrats, environmental activists, and others.
The Ranking Democrat on EPW, Sen. Carper (D-DE), said this week that Democrats may hold an additional hearing on Mr. Pruitt featuring outside witness testimony if they do not feel the scheduled Committee hearing is adequate. EPW Chairman, Sen. Barasso (R-WY) meanwhile has praised Pruitt as someone who can balance environmental and economic concerns.
NACWA hosted a meeting with other water sector organizations on January 9 to discuss issues of common interest and ensure coordination on shared priorities. The bulk of the discussion focused on joint activities around Water Week 2017, which will take place the week of March 20. The centerpiece of Water Week will be a “Rally for Water” on the Capitol Hill grounds and a Congressional Capitol Hill reception; all water sector groups will participate. More details on these events will be provided soon. The groups also discussed common advocacy efforts around the presidential administration transition and the start of the 115th Congress.
Although discussions of infrastructure stimulus bills took center stage following the recent presidential election, water affordability has also made its way into the national dialogue. A recent report, A Burgeoning Crisis? A Nationwide Assessment of the Geography of Water Affordability in the United States, published by Michigan State University explores the geographic and socio-economic factors influencing water affordability across the United States. In addition, the report seeks to create a novel benchmarking tool to assess the “financial capacity of households to pay for water service.”
Drawing on numerous data sources, such as census tracts and the AWWA water and wastewater rate survey, the authors determined that “a household would need to make at least $32,000 per year” in order to adequately afford water services. Although 11.9% of households in the U.S. currently are unable to adequately afford their water services, the report noted that this figure could almost triple over the next five years based on rate increases for water services. Furthermore, the report determines that most high-risk areas for water affordability are in “pockets of water poverty” in urbanized areas.
The report views affordability through an international lens by comparing case studies, as well as solutions, to instances abroad. Compared to other developed nations, the United States does not have well-developed federal policies to assist low-income affordability. Thus, as the nation’s leaders consider moving forward on plans to enhance critical infrastructure, they should be encouraged to give proper diligence to ensuring that everyone can afford to utilize our planet’s most vital resource — a point NACWA plans to advance vigorously early in the Administration.
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