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This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through May 27, 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

Senate Panel Approves $35 Billion SRF Bill, Adopts NACWA Recommendations

The Senate Environment and Public Works (EPW) Committee approved by voice vote on May 14 legislation reauthorizing the Clean Water and Drinking Water State Revolving Funds (CWSRF and DWSRF).  The Water Infrastructure Financing Act of 2009 (S. 1005), sponsored by Committee Chair Barbara Boxer (D-Calif.), Ranking Member James Inhofe (R-Okla.), Water and Wildlife Subcommittee Chairman Ben Cardin (D-Md.) and subcommittee Ranking Member Mike Crapo (R-Idaho), would provide $20 billion for the CWSRF and $15 billion for the DWSRF for fiscal years 2010 through 2014.  The House already passed its version of the bill in March, called the Water Quality Investment Act of 2009 (H.R. 1262), reauthorizing the CWSRF only at $13.8 billion over fiscal years 2010 through 2014.  NACWA strongly supported both the House and Senate bills and is urging the Senate to move its bill quickly to the floor for passage.

The Senate legislation included key provisions for which NACWA successfully advocated.  In particular, the adoption of an affordability amendment advanced by Sen. George Voinovich (R-Ohio) would require EPA to gather information and data for the purposes of revising its 1997 Combined Sewer Overflows – Guidance for Financial Capability Assessment and Schedule Development document.  NACWA’s Ohio members were critical to the success of this effort.  The bill also allows for up to 30 percent of the CWSRF dollars to be used as additional subsidization in the form of grants for principal forgiveness for disadvantaged communities or to promote the use of green infrastructure.  Another $5 million would be authorized for a new EPA program to provide training and technical assistance to utilities on effective utility management in line with the joint EPA-water sector effort on Effective Utility Management and $1.8 billion over fiscal years 2010 through 2014 for federal sewer overflow control grants.  Finally, S. 1005 expands the list of eligible CWSRF activities to include security-related projects, water conservation or efficiency projects, and reuse and recycling projects.

The controversial “Buy American” provisions that were in the stimulus package were not included in the Senate SRF bill.  Several member agencies have expressed concern that these provisions could delay projects, increase cost, and potentially increase public agency and contractor liability for wastewater infrastructure projects.  The Senate committee also did not include the Community Sewer Overflow Right-to-Know Act, as the House did in its SRF reauthorization bill, though it is expected to be marked up by the committee in June as stand-alone legislation.

Changes to SRF Formula, Davis-Bacon Could Slow Progress on the Senate Floor

The SRF reauthorization bill now moves to the Senate floor where it may be held up by Davis-Bacon prevailing wage provisions and questions over the state allotment formula.  Sens. Lamar Alexander (R-Tenn.) and John Barrasso (R-Wyo.) voted against the bill during markup because of these issues, and Sen. James Inhofe (R-Okla.) EPW ranking member, plans to lead an effort on the Senate floor to strip the Davis-Bacon provisions from the legislation.

The changes in S. 1005 to the allotment formula will likely be very contentious on the Senate floor and would also need to be resolved in conference as the House SRF reauthorization bill did not alter the existing formula.  While it does not have a position on Davis-Bacon or the formula, NACWA has written several letters supporting S. 1005 overall and will continue to work with congressional staff and NACWA’s members to ensure its passage in the Senate.  For a more detailed analysis of the legislation, please see Legislative Alert 09-12.

Beach Act

NACWA Supports BEACH Act; Asks For Clarification in Final Language

NACWA sent May 7 letters  May 7 to both the House and Senate restating its support for the overarching goals of the Clean Coastal Environment and Public Health Act of 2009 (S. 878; H.R. 2093), which would reauthorize the Beaches Environmental Assessment and Coastal Health Act (BEACH Act), while once again emphasizing concerns over the legislation’s definition of a “rapid testing method.”  Specifically, the legislation would require EPA to develop and validate a rapid test method by October 2012 for use in monitoring coastal recreational waters.  This is a significant improvement as earlier versions of the bill included a 2010 deadline for creation of the rapid test method, which was at odds with the August 2008 litigation settlement NACWA achieved in Natural Resources Defense Council v. EPA, a federal lawsuit over BEACH Act implementation.  NACWA was a party to the lawsuit and helped craft a settlement which set a 2012 deadline, ensuring EPA will have sufficient time to create a scientifically valid rapid testing method.  NACWA has since worked with key congressional staff to bring the legislative deadline for creating the rapid test method in line with the litigation settlement.

NACWA continues to be concerned with the bill’s definition of a rapid test method, however, which calls for results to be available “as soon as practicable and no more than two hours from the start of the test method.”  NACWA is requesting removal of the specific requirement that results be available no more than two hours from the start of the test method.  It is the Association’s position that the legislation should not presume the state of the science at the time of the 2012 implementation deadline.  NACWA is also calling for report language clarifying that any rapid testing method is only to be used for recreational water quality monitoring, which would prevent the rapid test method from being used for monitoring or testing effluent discharges at POTWs or for determination of compliance with National Pollution Discharge Elimination System (NPDES) permits.  This legislation does, however, represent a significant improvement over last year’s version of the bill, but NACWA will continue to take an active advocacy on this position until the rapid test method issues are resolved.

Clean Water Act Jurisdiction

Administration Supports CWA Jurisdiction Bill, Bolsters NACWA’s Advocacy

NACWA’s efforts to ensure that legislation seeking to clarify the jurisdictional reach of the Clean Water Act (CWA) includes the existing regulatory waste treatment exemption received a boost this week from Obama administration officials who sent a letter with a set of principles on how to address current uncertainties under the law.  Specifically, the heads of EPA, the Council on Environmental Quality, the Army Corps of Engineers, the Department of Agriculture, and the Department of the Interior sent a letter to Rep. James Oberstar (D-Minn.), chairman of the House Transportation & Infrastructure (T&I) Committee, outlining principles the legislation on CWA jurisdiction should follow that “would go a long way toward addressing the substantial confusion and uncertainty arising from recent Supreme Court decisions.”  Oberstar introduced the Clean Water Restoration Act in the 110th Congress, seeking to clarify the jurisdictional reach of the Clean Water Act, but has not yet introduced similar legislation in this Congress.  Sen. Russ Feingold (D-Wis.) introduced the Clean Water Restoration Act of 2009 (S.787) in the Senate earlier this year.  NACWA sent an April 17 letter  to Feingold and the EPW Committee supporting the overall framework of S.787 while reiterating its position that the bill must include the manmade waste treatment exemption.

The administration letter said any upcoming legislation should: 1) broadly protect the nation’s waters; 2) make the definition of covered waters predictable and manageable; 3) promote consistency between CWA and agricultural wetlands programs; and 4) recognize long-standing practices.  The final principle is of particular importance to NACWA because the letter states clearly that these long-standing practices include existing regulatory exemptions.  This is consistent with NACWA’s position that such legislation must specifically exclude the manmade waste treatment exemption from the bill’s jurisdictional grasp.  NACWA continues to understand from both the House and Senate that this exemption will be in the respective bills as they move forward.  The Senate Environment & Public Works (EPW) Committee continues to discuss compromise legislation put together by Sen. Max Baucus (D-Montana) on the Clean Water Act jurisdictional issue.  This compromise legislation could serve as a substitute amendment for S.787.  The committee is expected to mark up the bill next month.  NACWA will continue to update members on the jurisdictional issue and will continue to ensure the clean water community’s jurisdictional concerns are reflected in this key legislation.

EPA Assistant Administrator for Water Nominee Cites Jurisdictional Issues as Priority

Meanwhile, on May 12, Peter Silva appeared before the Senate EPW Committee for his confirmation hearing to be the next EPA Assistant Administrator for Water.  Silva is a civil engineer currently working as a senior policy advisory for the Metropolitan Water District of Southern California.  He has worked in the water and wastewater industry at the municipal level for more than 30 years and has a strong understanding of the challenges cities face in meeting their clean water needs.  He also served as the vice chair of the California Water Resources Control Board where he worked closely with NACWA member agencies on a variety of water issues. One NACWA member described him as “pragmatic and personable” and said he “understands the challenges municipalities face…. he is a great appointment for the POTW community.” He also served under President Clinton as a board member of the Border Environmental Cooperation Commission (BECC), which focuses on water quality challenges along the U.S. border with Mexico. Upon his nomination, EPA Administrator Jackson praised the selection of Silva, acknowledging his “strong wastewater background” and his experience in addressing waters that cross multiple boundaries.  At the hearing, Silva said that jurisdictional issues would be the biggest obstacle to the Office of Water, saying “we need collaboration between the states, EPA, and the Corps [of Engineers].  That's what I hope to bring to the table.”  NACWA has already been in contact with Silva and, assuming he is confirmed, hopes to have him provide a Keynote Address the upcoming Summer Conference in Milwaukee, Wisc.  NACWA will also meet with Silva as soon as possible upon his nomination to discuss the Association’s top clean water priorities.

Climate Change

House Panel Marks Up Climate Bill; Water Sector Amendment Delayed

The House Energy and Commerce (E&C) Committee this week marked up the American Clean Energy and Security Act of 2009 (ACES) (H.R. 2454), comprehensive legislation to establish a cap-and-trade system to control greenhouse gas emissions and provide for adaptation resources.  The cap-and-trade system would cover any entity emitting more than 25,000 tons of carbon dioxide equivalents per year.  While most wastewater treatment facilities would not fall under this cap, some of the large facilities that incinerate their biosolids could potentially be included.  The bill’s Additional Greenhouse Gas Standards (Title VIII, Sec. 811) also requires the EPA to use existing Clean Air Act authority (section 111) to set greenhouse gas emission performance standards for stationary sources of carbon dioxide equivalents with emissions that are not subject to the annual tonnage limit in Title VII.  More specifically, EPA is obligated to include stationary sources consisting of “sources that individually had uncapped greenhouse gas emissions greater than 10,000 tons of carbon dioxide equivalent” or that, “in the aggregate, were responsible for emitting at least 10 percent of the uncapped methane emissions.”  Wastewater operations are responsible for only about .45 percent of uncapped methane emissions nationwide.

An amendment by Rep. Lois Capps (D-Calif.) strongly supported by NACWA, the Association of Metropolitan Water Agencies (AMWA), and the Natural Resources Defense Council (NRDC) was not included at the last minute for jurisdictional reasons.  It would have incorporated a dedicated fund for water-related adaptation needs that would have been administered through EPA and distributed in the form of competitive grants to water and wastewater utilities.  The grants under Capps’ proposal would also have helped finance studies of water and wastewater systems’ unique climate-related risks, and implement adaptation programs (such as water efficiency and conservation efforts, or advanced treatment methods) that respond to these needs.  Capps has pledged to continue working with NACWA and the other groups to move the amendment forward as the climate legislation proceeds.

The bill now moves on to other committees in the House for further refinements, including the House Ways and Means Committee, the House Agriculture Committee and, potentially, the House T&I Committee.  E&C Chairman Henry Waxman has pledged to bring the measure to the full House floor for debate and final passage by the August recess.

Cap-and-Trade Bill Includes Several Potential Opportunities for POTWs

The ACES contains several items of interest to the wastewater community.  First, the bill includes a state adaptation block grant program for states to assist communities with adapting to climate change impacts on human health, ecosystems, and infrastructure.  Eligible projects include, but are not limited to, those designed to respond to extreme weather events such as flooding or hurricanes, changes in water availability, heat waves, sea level rise, ecosystem disruption, and air pollution.  The legislation would also require federal natural resources agencies to develop and implement adaptation plans for natural resources under the Natural Resources Adaptation subsection (Title IV, Subpart C), which provides funding to the EPA Administrator for use in adaptation activities restoring and protecting freshwater ecosystems, estuarine ecosystems, and watersheds.

There is also a provision (Title VII, Part D) for offsets - up to 2 billion tons worth each year.  The buying and selling of emissions credits is not restricted to owners and operators of covered entities, which means that municipal wastewater agencies can potentially be involved in the carbon emissions market.  The bill directs the EPA to establish an offsets program and requires that regulations ensure offsets are verifiable, additional, permanent, and “include as reductions in greenhouse gases reductions achieved through the destruction of methane and its conversion to carbon dioxide.” (Sec. 733)  Non-covered entities such as wastewater agencies would be allowed to submit offset projects and activities to the EPA.   An early action provision (Sec. 740) is also included that allows offset credits to be issued for projects that were started after Jan. 1, 2001 and meet criteria set forth by the EPA.

Finally, the “Combined Efficiency and Renewable Electricity Standard” section of the bill (Title I, Sec. 101) amends the Public Utility Regulatory Policies Act to require retail electric suppliers to meet a certain percentage of their load with electricity generated from renewable resources and electricity savings.  The combined renewable electricity and electricity savings requirement begins at 6% in 2012 and gradually rises to 20% in 2020.  Up to one quarter of the 20% requirement automatically may be met with electricity savings.  Of particular interest to NACWA, the bill defines renewable energy resources to include biomass and wastewater treatment biogas.  NACWA will continue to work with congressional staff to ensure that biosolids are included in the definition of biomass as the bill moves forward.

NACWA Works to Include Biomass in Senate Renewable Electricity Standards

NACWA is also working with Senate Energy and Natural Resources Committee staff to have language included in comprehensive energy legislation that would allow biomass generated by the municipal wastewater treatment process to be considered as a renewable energy source and part of a renewable electricity portfolio standard (REPS) program.  Sen. Jeff Bingaman (D-N.M.), chair of the committee, is leading the effort to establish a renewable electricity portfolio standard by which a percentage of the nation’s electricity generation must come from renewable sources by specified deadlines.  By qualifying as a renewable energy source, biomass generated from the municipal wastewater treatment process would have a ready market under the REPS and wastewater utilities would be at a competitive advantage in selling electricity generated from biomass at their facilities back to the grid.  Bingaman hopes to complete work on comprehensive legislation early in June and NACWA will update its members on progress as we move forward.

Green Infrastructure

NACWA Joins Other NGOs to Advocate for Green Infrastructure Legislation

NACWA continues to be at the forefront of efforts to advocate for the use of green infrastructure as one way to address the nation’s wet weather challenges.  The Association is working with the Natural Resources Defense Council, American Rivers, Clean Water Action, the Low Impact Development Center, and the Center for Neighborhood Technology, the Association of State and Interstate Water Pollution Control Administrators, and others on a proposal for green infrastructure legislation.  It would build upon the statement of intent to promote green infrastructure that the EPA and these groups previously endorsed.

The legislative proposal would establish Centers of Excellence to develop and disseminate green infrastructure technologies, authorize a new federal grants program to support planning, implementation, and monitoring of green infrastructure projects and associated green jobs, and require EPA to create a program to promote green infrastructure and integrate it into existing regulatory programs.  NACWA is working with targeted member agencies, including members in Kentucky, Missouri, Wisconsin, Massachusetts, Maryland and Oregon, to reach out to their Members of Congress to ensure the proposal is introduced on a bipartisan basis.