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This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through April 16, 2009, provides information on the activities of the 111th Congress of interest to the nation’s publicly owned treatment works (POTWs). For more detailed information regarding NACWA activities related to specific legislation, click on the web links in selected news items, visit NACWA’s website, or contact Pat Sinicropi at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Byron DeLuke at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Top Stories

NACWA Takes Member Concerns with Stimulus to EPA

On April 1, NACWA hosted two conference calls for its members to voice any comments, concerns or problems they have encountered with the implementation of the American Recovery and Reinvestment Act (ARRA) funding. Over the course of these calls, it was pointed out that some larger wastewater treatment plants are struggling to receive the grant or subsidization portion of the funding and were also becoming frustrated with the limitations of the Buy American provision. At the same time, some member agencies told a different story, indicating they would receive additional subsidization grants for their projects. The calls, however, focused primarily on the Buy American provision, which could prove difficult to members unless the Office of Management and Budget (OMB) and the Environmental Protection Agency (EPA) are flexible with the implementation of this provision. Members also voiced concern that the stimulus funds were being treated in the same manner as traditional State Revolving Fund (SRF) loans, making it difficult for larger municipalities to access funding.

To address these concerns, NACWA organized a municipal coalition meeting with officials from EPA on April 2nd. The meeting was also attended by representatives of the U.S. Conference of Mayors, National League of Cities (NLC), National Association of Counties (NACO) and other water and wastewater organizations. To address member concerns over how States are distributing additional subsidization under the stimulus, NACWA staff suggested that EPA reissue its Match 2nd guidance document and remove the terms “disadvantaged communities” and “environmental justice communities” as examples of communities that may not be able to otherwise afford a regular SRF loan. NACWA argued that these terms are creating confusion at the state level and leading to determinations that additional subsidization should be restricted only to these communities, which was not Congress’s original intent.

NACWA also raised the concern that Buy American provisions could pose problems to its membership. EPA assured NACWA and other organizations that these concerns will be addressed by the release from OMB of an updated guidance document for the ARRA program outlining requirements and restrictions of the Buy American provision, as well as additional guidance by EPA on the issue.

The OMB guidance  is a key document for addressing NACWA member concerns. For example, the guidance states that there are no requirements regarding the origin of components and subcomponents in manufactured goods used in the project as long as the manufacturing occurs within the U.S. Based on discussions with key stakeholders, NACWA believes final “manufacturing” could be synonymous with final assembly in the U.S.. This could mean that projects that use foreign-made components will comply with the provision as long as final assembly of the product takes place within the U.S. EPA stated that NACWA members and other stakeholder organizations will have an opportunity to review and comment on the final version of EPA’s guidance before it is enacted. See also Legislative Alert 09-09 for more information.

NACWA plans to submit comments on the OMB guidance document and encourages members to comment directly as well. If members do submit comments, please send a copy to NACWA’s legal counsel, Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . You can also contact Nathan if you have questions or additional concerns regarding the Buy American provisions.

New Clean Energy and Climate Change Legislation Proposed in Congress

On March 31, House Energy and Commerce (E&C) Chairman Henry Waxman (D- Calif.) and Congressman Edward J. Markey (D-Mass.), Chair of the E&C Energy and Environment Subcommittee, released a draft of their clean energy and climate change legislation. The American Clean Energy and Security Act of 2009 (ACES)  requires reductions in greenhouse gases of a 20 percent cut from 2005 carbon emissions levels by 2020, 42 percent by 2030, and 83 percent by 2050. President Obama had called for 14 percent cuts by 2020 and 80 percent cuts by mid-century, making the House bill slightly more aggressive.

The cap-and-trade rules would only apply to facilities that emit more than 25,000 tons of carbon dioxide equivalents per year. The issue for wastewater facilities is whether or not larger facilities that incinerate biosolids would be included. The draft language does not provide specifics on what percentage of the greenhouse gas reduction credits would be allocated to polluters each year at no cost, or how many would need to be purchased. The language also does not address how revenue collected from the cap-and-trade system would be spent. However, both Markey and Waxman have said that this plan would more likely include some free allocations of credits, at least in the initial period, and some auctioning of credits.

The ACES directs EPA to set emission standards for a “list of categories of stationary sources consisting of sources that individually had uncapped greenhouse gas emissions greater than 10,000 tons of carbon dioxide equivalent and that, in the aggregate, were responsible for emitting at least 20 percent of the uncapped greenhouse gas emissions.” EPA is charged with regulating source categories that emit at least more than 10% of the uncapped methane emissions (wastewater facilities are only emitting 0.45%.)

NACWA has identified several ways in which this legislation can benefit its membership. These include possible funding opportunities from the following provisions:

• Requirements for the National Oceanic and Atmospheric Administration (NOAA) to conduct vulnerability assessments and potential funding to address these vulnerabilities;
• Potential involvement of facilities in carbon emissions markets; and
• Accessing the Transitioning to a Clean Energy Economy funding to help offset the rising energy costs being seen by facilities.

NACWA has learned that Chairman Waxman intends to markup the legislation before the Memorial Day legislative recess.
More information on these and other important aspects of the legislation can be found in NACWA’s LA09-08.

Budget & Appropriations

House and Senate Approve Budget Resolutions

The House and Senate each approved fiscal year (FY) 2010 budget resolutions. The House-passed resolution would limit total federal spending to $3.6 trillion in FY 2010, while the Senate passed a budget resolution limits it to $3.53 trillion. Though both of these resolutions represent a slight decrease from the President’s budget proposal, each version would permit full funding of Obama’s request for $10.5 billion in EPA funding next year, including the $2.4 billion appropriations request for the clean water state revolving fund (CWSRF). House and Senate conferees are now negotiating a joint budget resolution that combines the two versions, which will serve as a non-binding document to set funding guidelines for the overall federal budget. NACWA will continue to work with key staff on the House and Senate appropriations committees in the coming months as they craft the FY 2010 appropriations bills and asks that its public agency members contact their representatives and senators to ensure that there is support for the CWSRF funding level contained in President Obama’s budget request.

Jurisdiction

Legislation to Amend Clean Water Act Jurisdiction Proposed in Congress

On April 2, Senator Russ Feingold (D-Wisc.) introduced legislation that would amend the Clean Water Act to clarify its jurisdiction over U.S. waters. The Clean Water Restoration Act (S. 787), which is similar to legislation introduced in the 110th Congress, would replace the term “navigable waters” with the term “waters of the United States,” which is defined according to language in the regulations for both the U.S. Army Corps of Engineers and EPA. NACWA supported this legislation in the 110th Congress after coordinating with members of the House and Senate to ensure that member concerns were addressed in the final language. The key piece of this legislation would be the replacement of the term “navigable waters” with the phrase “waters of the U.S.” which would encompass those waters subject to the ebb and flow of the tide; territorial seas; and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds. The ultimate goal of this change in language is to protect the nation’s rivers and streams that are currently in jeopardy.

NACWA supports the inclusion of these terms and the environmental benefit this action would provide with the caveat that the man-made wastewater treatment regulatory exemption continues to be excluded from the definition. Sen. Feingold’s bill, in its Finding Section, states that the man-made waste treatment exemption would continue to apply; however findings language is not legislatively binding. NACWA has expressed its preference to Sen. Feingold for this language to be moved to the body of the legislation. NACWA understands that this should be the case in the House bill and is confident that in the event this legislation passes, this key exemption will be maintained.

Conferences & Meetings

EPA Administrator Jackson to Address National Clean Water Policy Forum

Last week, EPA Administrator Lisa Jackson confirmed that she will be speaking at the 2009 Clean Water Policy Forum sponsored by NACWA and the Water Environment Federation (WEF) which is being held May 3-6 at the Washington Renaissance Hotel in Washington, D.C. Jackson is scheduled to appear at 8:30 a.m. on Monday, May 4 and joins growing list of high-profile policymakers and experts who will come to share their ideas about the future of clean water. Also scheduled to speak is Nancy Sutley, Chair of the White House Council on Environmental Quality, who is the principal advisor to President Obama on environmental policy and whose office works with federal agencies and other White House offices to coordinate environmental policy. In a separate session, climate change will be the topic in a discussion to be led off by Joseph Romm, editor of climateprogress.org and senior fellow at the Center for American Progress, who was named by U.S. News and World Report as one of the eight “most influential energy and environment policymakers in the Obama era.” Later, a panel of key congressional staff members from both parties will discuss current and upcoming legislation that will affect the clean water community. In addition, the directors from each of the EPA’s key water program offices will give updates on the Agency’s regulatory and scientific efforts in the clean water arena.

For more information on the Forum, go to the NACWA Website. To reserve your hotel room today, simply call the Renaissance Washington Hotel at 202.898.9000.