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This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through September 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 202/533-1823.

Top Stories

Climate Bill Introduced in Senate Reflects NACWA Input

On September 30, Senators John Kerry (D-Mass.) and Barbara Boxer (D-Calif.) introduced S. 1733, The Clean Energy Jobs and American Power Act to mitigate greenhouse gas emissions and promote the use of clean energy technology.  Of significance to NACWA members is that the proposed legislation, in line with a significant NACWA-led coalition advocacy effort, includes provisions to help states and communities adapt to climate change.

Climate Bill Sets Trigger at 25,000 Metric Tons
The greenhouse gas mitigation requirements outlined in S. 1733 mirrors closely the basic requirements for a cap-and-trade system contained in the House climate change package passed earlier this year (H.R. 2454) in that it sets the trigger for covered entities at 25,000 metric tons of CO2 equivalents, except it requires reductions at a more rapid rate.  It sets a target goal for reductions of 20% by 2020 and 80% by 2050 versus the House proposal which sets the 2020 target to 17% (both from 2005 levels). Capped emissions include “any fossil fuel-fired combustion device (such as a boiler) or grouping of such devices that…has emitted 25,000 or more tons of carbon dioxide equivalent in 2008 or any subsequent year.” POTWs that meet this standard would be required to participate in the cap-and-trade program.

The bill prohibits the EPA Administrator from establishing performance standards for facilities that have uncapped emissions below the threshold limit before 2020 if these facilities have projects that qualify for off-sets credits. The legislation establishes an entire regime for projects to qualify as off-sets and receive credit allowances from sources of capped emissions in exchange for verifiable projects that reduce emissions.

NACWA Advocacy Yields Key Adaptation Provisions
In addition to establishing a greenhouse gas mitigation program, S. 1733 includes several provisions addressing water-related issues, including a provision for which NACWA championed.  The bill includes two adaptation programs to help communities deal with water-related impacts:  the Water Systems Mitigation and Adaptation Partnerships (WSMAP) and the Coastal and Great Lakes State Adaptation Program (CGLSAP).  NACWA helped lead a coalition of water associations and environmental organizations advocating on behalf of the inclusion of the WSMAP.  This program would provide 50% matching grant assistance  to drinking water, wastewater and stormwater utilities, via the states, to help them address climate-related impacts, including impacts related to water supply and quality issues as well as infrastructure impacts caused by rising sea levels or extreme storm events.   This provision garnered a great deal of support from key Senators including Majority Leader Harry Reid (D-Nev.) who introduced stand-alone legislation establishing this program just prior to its inclusion in S. 1733. Senator Cardin (D-Md.), chair of the Senate Subcommittee on Water and Wildlife, was an early champion of the effort within the Senate Environment and Public Works (EPW) Committee as was the Chair of that Committee, Senator Barbara Boxer (D-Calif.), who also provided early support for the effort.

In addition to the broader WSMAP, the CGLSAP targets funds to coastal and Great Lakes states to address impacts of climate change to coastal ecosystems, communities, water supplies and public infrastructure. Though there is no requirement that that States distribute the funds they receive under this program to local utilities, they must use the money for water-related adaptation needs.  In addition to these adaptation programs, S. 1733 authorizes programs to promote water conservation and efficiency measures, including authorizing the EPA WaterSense program, a voluntary program for labeling water-efficient high performance products and services; and a State Residential Water Efficiency and Conservation Incentives Program authorizing grants to eligible entities, including water and wastewater utilities, for programs offering incentives to consumers who purchase and install water-efficient products and services such as those labeled under WaterSense.  The legislation also directs federal agencies to make cost-effective water-efficient procurement decisions by purchasing WaterSense-certified products.

NACWA is pleased that our key message that climate change and water resource management are closely intertwined was acted upon by the Senators shaping this legislation.  NACWA will continue to reiterate this message as the legislation moves through the various committees for approval.  The next step is deliberation by the Senate EPW Committee which is scheduled to begin hearings on the measure in mid-October with mark-up occurring by October 30.  After the measure makes it through EPW, it is unclear which Senate Committees will receive a referral.  At this point, four other committees could receive the bill to markup, including Foreign Relations, Agriculture, Energy and Natural Resources, and Finance.  There is pressure for the full Senate to consider the legislation prior to the upcoming United Nations-sponsored conference on climate change in Copenhagen, Denmark in early December; however, most observers believe it will be difficult for the full Senate to consider the bill by then.

New Chesapeake Bay Watershed Bill Introduced; NACWA Looked to as Key Resource 

In response to heightened public and media interest spurred by an Executive Order issued in May by President Barack Obama, congressional  lawmakers at the end of September began work on strengthening the U.S. Environmental Protection Agency’s (EPA) Chesapeake Bay Program. The program, which expired in 2005, is a regional partnership between the states of Maryland, Pennsylvania, and Virginia; the District of Columbia, the Chesapeake Bay Commission; and the EPA dedicated to restoring the Chesapeake Bay.

On September 22, the House Transportation & Infrastructure Committee held a hearing on the Program’s reauthorization.  The hearing was held in advance of the introduction of a reauthorization bill in the House which Rep. Elijah Cummings (D-Md.) expects to introduce in the coming weeks.  At the hearing witnesses included Members of Congress, EPA representatives, State and local officials, representatives from the POTW community and the agriculture industry. Significant discussion focused on the need to direct funds to address nonpoint sources and on the establishment of a Bay-wide Total Maximum Daily Load (TMDL).  Along these same lines, a number of witnesses recommended granting EPA new authority to regulate nonpoint pollution from agriculture and stormwater runoff.

Many of the suggestions made at the hearing are included in draft legislation recently circulated by Maryland Senator Ben Cardin (D). Cardin’s legislation seeks to implement a Bay-wide TMDL incorporating point, nonpoint and atmospheric deposition sources.  The legislation would also move toward a watershed-based approach to help restore the Bay by requiring that states develop and implement tributary implementation plans (TIPs) that would, among other things, require a 50-percent reduction in nutrient and sediment loadings by 2014.  Cardin’s legislation would also establish a nutrient (nitrogen and phosphorus) trading program in which point sources and nonpoint sources of pollution can trade credits to offset their nutrient loadings.

NACWA was asked to review the draft bill introduced by Cardin and provide informal comments. NACWA’s comments focused on how the framework laid out in the draft legislation would impact point and nonpoint sources and stressed that the central challenge to cleaning up the Bay is the effective control of nonpoint sources.  If you would like to obtain a copy of NACWA’s comments, please contact Pat Sinicropi, NACWA’s legislative director, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or at 202/533-1823.

Also, NACWA plans to organize a working group of members in the Bay states to provide input and direction to Congress as it continues to pursue the task of creating a federal enforcement program that will assist in cleaning and restore the Chesapeake Bay and its tributaries.

NACWA Encourages House Support for Water Trust Fund Bill

NACWA has ramped up its efforts  to build support and momentum for The Water Protection and Reinvestment Act of 2009 (H.R. 3202), legislation introduced by Rep. Earl Blumenauer (D-Ore.) to establish a $10 billion-a-year trust fund to help communities address their wastewater  and drinking water infrastructure challenges.  The water trust fund is paid for by fees on various types of products that impact wastewater and drinking water infrastructure. Fifty percent of these funds would finance grants and loans through the existing clean water state revolving fund (CWSRF), while about one-third of the funding would be provided to the drinking water state revolving fund (DWSRF).  The remaining funding would support a number of new programs that would assist utilities in addressing security upgrades, climate change mitigation and adaptation, sewer overflow control, research, workforce development, and drug take-back initiatives.  NACWA released a detailed analysis of the bill in its Legislative Alert 09-16.

NACWA sent correspondence to all House members urging their support and co-sponsorship of the bill and encouraging them to meet with us to discuss the legislation.   NACWA staff has arranged meetings with over 30 House members over the coming weeks in an effort to garner additional support for the legislation.  NACWA staff will follow up with NACWA members on additional outreach that our members can do to encourage support for the legislation by their Representative.

H.R.3202 has 17 co-sponsors and, by working with members of the Water Infrastructure Network, NACWA hopes to gain a significant number of additional co-sponsors for the legislation.  NACWA members are encouraged to meet with their congressional delegations and staff in their District and State offices to explain the importance of this legislation to the future integrity of the nation’s wastewater infrastructure.

NACWA has made available to member utilities an array of educational materials for use at the local level to generate support for the bill on its Clean Water Funding Network website, www.cleanwaterfunding.org. These materials will include sample letters to be sent to your Representatives, press kits, and other outreach tools. Please contact NACWA’s Pat Sinicropi at 202/533-1823 or John Krohn 202/833-4655 for more information about this important legislation effort.

Appropriations and Funding

Senate Passes FY 2010 Interior Appropriations Bill Providing $10 Billion for EPA

The United States Senate approved its Fiscal Year 2010 Interior, Environment and Related Agencies Appropriations bill on September 24, 2009 by a roll call vote of 77 to 21.  The legislation can now proceed to conference negotiations with its House counterpart which was approved in June.

The Senate bill seeks to provide approximately $10 billion for the EPA in fiscal year 2010.  Of this amount, approximately $3.63 billion would be directed to wastewater and drinking water infrastructure projects.  Specifically, the Senate-approved bill seeks to provide a total of approximately $3.9 billion in funding for wastewater and water infrastructure projects including $2.1 billion in funding for the Clean Water SRF and $1.4 billion for the DWSRF.  The House approved bill provided $10.4 billion for the EPA, approximately $400 million above the amount included in the Senate bill.  The House legislation would provide approximately $2.3 billion for the Clean Water SRF and includes language that requires States to distribute thirty percent of the SRF funds in the form of additional subsidization which can be in the form of negative interest loans, principal forgiveness or grants.  NACWA has urged Senate conferees to agree to the House language requiring additional subsidization and has worked with its members in Hawaii and Wisconsin to accomplish this.

The legislation will now proceed to a conference committee where differences between the two versions of the legislation to will be reconciled.  As these discussions occur, NACWA encourages its Members to contact their Senators and Representatives to press for the funding numbers and legislative language provided by the House of Representatives given the increased financial resources it would make available to states and localities for wastewater infrastructure projects.

SRF Reauthorization Awaits Senate Consideration

The United States Senate returned from the August Recess with a renewed vigor to complete work on its remaining FY 2010 Appropriations bills as well as a desire to make significant progress on President Obama’s top legislative priority — health care reform — immediately upon its return.  This has lead to a continued delay in the consideration of The Water Infrastructure Financing Act, S. 1005, which seeks to reauthorize the clean water and drinking water SRFs, authorizing approximately $40 billion  for state and local communities as they work to upgrade their wastewater and drinking water systems.

As the Senate continues making progress on appropriations bills, NACWA and other key stakeholders are reaching out to key Senators to encourage their support for the bill.  In addition to efforts occurring in Washington, D.C., NACWA also encourages Members to touch base with their Senator and Senate Majority Leader Harry Reid (D-Nev.) to urge the Majority Leader to schedule the legislation for floor consideration at the earliest opportunity.  Previously, the legislation was delayed as some Senators objected to changes in the statutory formula which affects how much money states receive under the program.  With this obstacle removed, the bill can be considered by the Senate as soon as time on the legislative calendar becomes available.  The Senate EPW Committee approved the legislation on July 15, 2009.

The Senate bill seeks to provide approximately $40 billion for the SRFs, while also funding additional grant programs for sewer overflow control and Great Lakes funding. In addition, the bill updates the allocation formula for distributing SRF funds to the states.

Once S. 1005 gained Senate approval, the legislation will need to be reconciled with its House counterpart — H.R. 1262 — which passed in March.   Because the Senate and House bills contain a number of differences—including the major difference that the Senate bill changes the SRF distribution formula while the House bill does not as well as the fact that the Senate bill includes drinking water while the House bill is a wastewater-only l— a conference negotiation process will be necessary as well as potentially contentious and lengthy.

Security

NACWA Efforts Help Keep Security Under EPA Jurisdiction 

Officials from the Obama Administration testified on October 1 before the House Subcommittee on Energy and Environment making it clear that water sector security for wastewater and drinking water should be administered by EPA.  Rand Beers, Department of Homeland Security (DHS) Undersecretary of the National Protection and Programs Directorate and Peter Silva, EPA Assistant Administrator for Water, appeared before the House panel to present the details of the Administration’s position.  NACWA has advocated aggressively that wastewater and drinking water utilities be regulated by EPA to avoid bifurcated federal jurisdiction.  In support of this effort, NACWA recently sent correspondence to DHS and EPA outlining our position and met with Mr. Silva to share our concerns on the burdens that bifurcated security oversight and enforcement would place on our industry.  In line with NACWA’s position, Silva said in his testimony that "establishing a single lead agency for both will promote consistent and efficient implementation of chemical facility security requirements across the water sector."

The announcement by the Administration represents a significant step in NACWA’s efforts to ensure that any security plan does not overburden utilities by requiring duplicative, inconsistent or overly onerous requirements.  NACWA will continue to work with the key House committees involved in this issue to ensure that the voice of the Nation’s clean water community continues to be taken into account as this legislation progresses.  To help inform our advocacy efforts, NACWA will be circulating a survey to its members asking them for data on potential costs related to the requirements outlined in pending legislation.

In addition, in preparation for the Senate’s consideration of the bill, NACWA met with minority staff from the Senate Homeland Security and Government Affairs to discuss the prospects of consideration of the legislation during the 111th Congress.  During the meeting, NACWA staff discussed the pending political landscape for the bill within the committee as well as the likelihood that the bill be considered in the coming months.  Through these discussions, minority staff informed NACWA that the legislation is a priority of the committee, however they have been instructed not to begin drafting legislation until the House of Representatives approves its chemical security bill.   This will likely preclude the legislation from being considered by the Senate prior to the close of the first session of the 111th Congress.  Language was included in the House and Senate Fiscal Year 2010 Department of Homeland Security Appropriations bill that extends the Chemical Facilities Anti-Terrorism Standards (CFATS) program for another year, allowing NACWA to continue to advocate on behalf of POTWs in the Senate as its legislation progresses.