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This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through June 30, 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 Environment Committee Moves Several Bills with NACWA’s Imprint on Them

The Senate Environment and Public Works (EPW) Committee approved four bills June 18 that seek to clarify the jurisdictional reach of the Clean Water Act (CWA), establish a monitoring and reporting system for sewer overflows, reauthorize funding for monitoring the health of coastal waters, and reauthorize a sediment cleanup program for the Great Lakes.

Clean Water Restoration Act
First was the Clean Water Restoration Act (S. 787), which seeks to to address confusion regarding the jurisdictional scope of the CWA created by recent U.S. Supreme Court rulings in Solid Waste Agencies of Northern Cook County v. U.S. Army Corps of Engineers, Rapanos v. U.S. and Carabel v. U.S. Army Corps of Engineers that sought to narrow the jurisdictional reach of the CWA.  The legislation removes the term “navigable” from the definition of “waters of the U.S.” and clarifies that a wide range of intrastate and interstate waters is covered by the law, consistent with the U.S. Environmental Protection Agency’s (EPA’s) regulatory definition.

NACWA sent a June 15 letter  supporting the measure after the EPW Committee agreed to include language codifying  the regulatory waste treatment exemption for man-made treatment structures contained in the EPA and Army Corps of Engineers regulatory definition of “waters of the United States” (40 CFR 122.2, 33 CFR 328).  Without this explicit and binding exemption, NACWA was concerned that certain components of their members’ treatment systems, including some conveyance ditches, treatment lagoons, and manmade effluent-dominated impoundments, could be subject unnecessarily to the National Pollutant Discharge Elimination System (NPDES) permit requirements despite this long-standing exemption.  At NACWA’s request, the regulatory exemption was explicitly included in statutory language of the Senate bill.  The wastewater treatment exemption was one of only two regulatory exemptions to be statutorily codified under the bill’s provisions, the other having been successfully obtained by agricultural interests.  Similar legislation has not yet moved through the House, although action is expected soon.

Sewage Overflow Community Right-to-Know Act
EPW also reported out the Sewage Overflow Community Right to Know Act (S. 937) on a voice vote.  The version of the bill approved by the EPW Committee is identical to legislation that was marked up in the EPW Committee during the 110th Congress and passed by the full House earlier this year.  NACWA worked for several months with American Rivers and key staff from the House Transportation & Infrastructure (T&I) Committee on the House version of the bill (H.R. 2452) during the 110th Congress.  However, NACWA’s Board raised concerns with the final version of the House bill, especially with the fact that the definition of sanitary sewer overflows (SSOs) would amend the Clean Water Act and potentially lead to new liability concerns.  To address this problem, NACWA worked with staff on the House T&I and Senate EPW Committees to ensure that the definition of SSOs was moved to a section of the bill that limits its applicability to the monitoring, notification, and reporting provisions of the bill only.  The full Senate could potentially act on this bill before the summer recess.

BEACH Act Reauthorization Bill
The Senate EPW committee also reported out the Clean Coastal Environment and Public Health Act of 2009  (S. 878), to reauthorize the Beaches Environmental Assessment and Coastal Health (BEACH) Act.  The legislation included several changes to address concerns raised by NACWA members.  The marked-up bill contained new language defining a rapid test method as one that produces results “as soon as practicable” but no more than four hours from the start of the test.  This is a significant improvement over the original language, which required results to be produced within two hours.  The bill also would authorize $60 million for BEACH Act implementation, an increase from the currently authorized $30 million under the BEACH Act.  The committee also expanded the eligibilities for this funding to include pollution source tracking and remediation as well as monitoring and public notification.  The House T&I Committee passed its version of this legislation with a six hour window for returning results from a rapid test method.

The marked-up bill also contained language, supported by NACWA, setting an October 2012 deadline for when EPA must develop and validate a new rapid test method.  This deadline is consistent with the recent BEACH Act litigation settlement among NACWA, EPA, the Los Angeles County Sanitation District, and the Natural Resources Defense Council (NRDC).  The bill will now move to full Senate for consideration later this summer then onto a conference committee for reconciliation.    NACWA will continue to track this legislation as it moves through Congress to ensure that rapid test method requirements reflect the best available science.

Great Lakes Legacy Reauthorization
Finally, at the June 18th markup, the EPW Committee approved the Contaminated Sediment Remediation Reauthorization Act (S. 933).  The bill reauthorizes the Great Lakes Legacy Act (GLLA) at $50 million for fiscal years 2004 through 2009 and $150 million for fiscal years 2010 through 2014.  The House passed its version of the bill as part of the Water Quality Investment Act of 2009 (H.R. 1262) on March 12.  The House bill also included provisions requiring EPA to study and report to Congress on the condition of wastewater treatment facilities discharging into the Great Lakes.  It also requires EPA to develop recommendations to improve water quality monitoring, including ways to prevent the discharge of untreated or under-treated wastewater.  S. 933 now moves to the Senate floor, but it is unclear what the timeframe is for final passage.

Appropriations and Funding

House and Senate Appropriations Committees Approve FY 2010 CWSRF Funds

The House Appropriations Committee approved the Interior and Environment Appropriations bill  for fiscal year (FY) 2010 June 18 with $10.46 billion for EPA, including $2.3 billion for the Clean Water State Revolving Fund (CWSRF) and $667 million for “Great Bodies of Water,” including $475 million for the Great Lakes Restoration Initiative.  NACWA was successful in ensuring that there be additional subsidization provisions that apply to the portion of the CWSRF funds that exceed $1,000,000,000.  Specifically, the legislation requires that at least 30% of these funds be distributed in the form of “additional subsidy to eligible recipients in the form of forgiveness of principal, negative interest loans, or grants (or any combination of these).”  Furthermore, to the extent there are sufficient viable projects, 20% of all SRF funds would be set-aside to fund projects to build green infrastructure improvements or implement water efficiency/conservation measures.

Meanwhile, the Senate Appropriations Committee approved its Interior Department, U.S. EPA and U.S. Forest Service budget for FY 2010 on June 25 and included $2.1 billion for EPA’s CWSRF program.  While this figure is less than the $2.3 billion approved by the House Appropriations Committee and the $2.4 billion requested by the Obama administration for the CWSRF, it marks an enormous increase in funding from the previous year of $667 million.  Also included in the package were $1.39 billion for the Drinking Water State Revolving Fund (DWSRF) and $478 million for Great Bodies of Water.  Under the Senate package, EPA as a whole receives $10.19 billion, compared to $10.46 billion in the House bill.  NACWA has not been able to confirm yet whether the additional subsidization language was included in the Senate bill but will continue to follow the budget process and keep members informed of this and other important developments.

U.S. Government Accountability Office Releases Water Trust Fund Report

NACWA continues to advocate for the introduction of water trust fund legislation and believes it is one step closer with the Government Accountability Office’s (GAO) June 29 release of its report on viable revenue sources to support a $10 billion per year trust fund.  Reps. James Oberstar (D-Minn.), chair of the House Transportation & Infrastructure (T&I) Committee; Eddie Bernice Johnson (D-Texas), chair of the T&I’s Subcommittee on Water Resources & the Environment; and Earl Blumenauer (D-Ore.), member of the House Ways and Means Committee requested the report during the 110th Congress.  NACWA is working closely with staff for Rep. Blumenauer to finalize trust fund legislation the Association hopes will be introduced soon.

NACWA met with GAO officials while the report was being put together and provided documents  analyzing the six possible revenue sources for a water trust fund identified by Blumenauer as he finalizes his trust fund bill – a fee on bottled beverages; a fee on “flushables;” a permit fee on industrial dischargers of certain toxic chemical pollutants; a fee on pesticides and fertilizers; a clean water restoration fee similar to what is available for superfund; and a fee on pharmaceuticals.  The NACWA one-page documents, which were developed through its Clean Water Funding Task Force, provide details about these sources and the revenue they are expected to generate.  NACWA emphasized the importance of finding revenue sources that are fair, equitable, and firewalled and pointed out that municipalities currently bear about 95 percent of the water infrastructure funding load.  NACWA also provided the GAO staff with a list of recommended organizations, as well as NACWA public agency members, to contact as they gathered information for the report.  Based on this information, GAO was able to produce a detailed, timely, and serious report that will help inform overall trust fund advocacy efforts.  NACWA released a detailed analysis of the report in its Legislative Alert 09-15.

Climate

NACWA Pushes for Adaptation Language in Senate Climate Bill

On June 26, the full U.S. House of Representatives passed the American Clean Energy and Security Act of 2009 (Waxman-Markey or H.R. 2454) , introduced by Reps. Henry Waxman (D-Calif.), Chairman of the House Energy and Commerce (E&C) Committee, and Ed Markey (D-Mass.).  The comprehensive climate legislation would establish a cap-and-trade system to control greenhouse gas emissions and provide for adaptation resources.  While most wastewater treatment facilities would not fall under the cap, some large facilities that incinerate their biosolids could potentially be included.  The bill also 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.”  NACWA provided an analysis of the cap-and-trade scheme in Legislative Alert 09-08.

NACWA and a coalition of water associations and environmental groups worked hard with staff for Rep. Lois Capps (D-Calif.) to amend H.R. 2454 to include the Water Systems Adaptation Act of 2009 (H.R. 2969).  Capps introduced the legislation June 19 and NACWA helped to identify a dozen co-sponsors for the measure.  We also met with many congressional office staffers and sent a June 19 letter  in support of the legislation.  NACWA is very appreciative of the efforts its members made to help secure co-sponsors for the legislation.

In the end, however, the Capps bill was not included in the manager’s amendment or as a separat amendment to the Waxman-Markey bill.  NACWA heard from staff on both E&C and T&I that water infrastructure resiliency to climate change was simply too large an issue to be dealt with as part of a single title within the climate bill and that jurisdictional hurdles complicated its inclusion.  As a result, NACWA is setting its sights on the Senate where the debate is just getting underway.  NACWA has engaged congressional staff on key Senate committees and will continue to ramp up its efforts now that Senator Barbara Boxer (D-Calif.), Chair of the Senate EPW Committee, has set an August 1 deadline to complete work on her climate legislation.  Boxer has committed to several hearings prior to the bill’s mark-up and NACWA will work with EPW staff to ensure that its members’ perspectives are well-represented.  NACWA will also continue its dialogue with House staff in preparation for any eventual conference negotiations to resolve the differences between the House and Senate climate bills.

Conferences & Meetings

NACWA’s Summer Conference Only Two Weeks Away – Register Now!

NACWA’s 2009 Summer Conference and 39th Annual Meeting, The New Regulatory Climate. . . Clean Water Agencies Prepare to Act, will focus on the changing regulatory approach to clean water issues and how clean water agencies will be affected.  Mike Shapiro, acting assistant administrator for water, is confirmed as the keynote speaker for the conference to give his perspectives on the policies EPA will pursue in the coming years.  Other featured speakers include Laurent Auguste, President and CEO of Veolia Water North America, and Douglas Smith, President of Engineering and Architecture Services for Tetra Tech, who will discuss how utilities can continue to confront their present challenges while also preparing appropriately for the future.  Panel presentations will provide in-depth information and analysis on issues involved with wet weather, nutrients, total maximum daily loads and watersheds, as well as climate change.  The conference will be held July 14-17 at the InterContinental Milwaukee.  More information, including an agenda and online registration, are available on NACWA’s Conferences & Professional Development webpage.