» Update Archive

This edition of NACWA’s Legislative Update, current through May 12, provides information on the activities of the 111th Congress of interest to the nation’s public clean water agencies.   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 John Krohn at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Over the past weeks, NACWA has continued its efforts to build support for consideration of state revolving fund (SRF) reauthorization legislation, The Water Infrastructure Financing Act (S.1005), on the Senate floor.  NACWA also continued advocating for legislative language that would require EPA to review and update its approach to community affordability/financial capability issues.  At the same time, clean water issues continued to advance in Congress as the U.S. House of Representatives approved the Clean Estuaries Act of 2010 (H.R. 4715) and House Transportation and Infrastructure (T&I) Committee Chairman James Oberstar (D-Minn.) unveiled “America’s Commitment to Clean Water Act” (H.R. 5088), seeking to clarify the reach of Clean Water Act jurisdiction.

Affordability/Financial Capability

NACWA Seeks Appropriations Rider Requiring EPA Affordability Review

NACWA continued its efforts to build support for an appropriations request by Ohio Senators George Voinovich (R) and Sheldon Brown (D) seeking legislative language that would require EPA to review and update, with stakeholder input, affordability criteria as outlined in the 1997 guidance document Combined Sewer Overflows — Guidance for Financial Capability Assessment and Schedule Development. Substantially similar language to the appropriations request is included in the Senate’s CWSRF reauthorization bill but because that legislation has stalled for now (see related story below), Senators Voinovich and Brown would like to try to move it separately as part of the must-pass yearly spending bill for EPA.

In support of the Senators’ request, NACWA has met with several House and Senate offices including:  Senator Daniel Inouye (D-Hawaii), Chairman of the Senate Appropriations Committee, Senators Ben Nelson (D-Neb.), Herb Kohl (D-Wis.), Jack Reed (D-R.I.), and Lisa Murkowski (R-Alaska); as well as with Congressman David Obey (D-Wis.), Chair of the House Appropriations Committee, Congressman Jim Moran (D-Va.), Chair of the Interior and Environment Appropriations Subcommittee which funds EPA, and Congressmen Tim Ryan (D-Ohio), Maurice Hinchey (D-N.Y.), Marcy Kaptur (D-Ohio), and Steven LaTourette (R-Ohio).  A delegation of California utilities also met with staff for Senator Barbara Boxer (D-Calif.), Chair of the Senate EPW Committee, and Senator Dianne Feinstein (D-Calif.), Chair of the Senate Interior and Environment Appropriations Subcommittee.

Senator Boxer indicated that she does not support removing this language from the Senate reauthorization bill and attaching it to the FY11 Interior and Environment Appropriations bill.   However, Senators Voinovich and Brown would still like to move forward with their request and are exploring whether House and Senate Appropriators will include the language despite the lack of support for doing so from the Senate authorizing committee.  The meetings thus far with members of the House and Senate subcommittees indicate that there is broad support for the merits of this request and we are exploring whether an amendment is possible during committee consideration of the FY11 spending bill.

This legislative effort is part of a broader effort by NACWA to highlight the lack of flexibility in EPA’s current approach to affordability issues.  During the National Environmental Policy Forum NACWA’s Board approved a resolution stating that affordability issues are of critical importance to NACWA and will be a focus of our regulatory and legislative advocacy agenda.

NACWA will also be unveiling a public relations campaign in the coming months to raise awareness of affordability concerns more broadly and to provide our member agencies with tools they can use for public outreach in their local communities.  You can stay up to date on our affordability efforts by going to our website and searching under 21st Century Challenges.

Funding and Appropriations

NACWA Continues Concerted Push for SRF Consideration

NACWA continued to press for Senate consideration of the Water Infrastructure Financing Act (S. 1005) in the face of lingering concerns over formula adjustments and Davis-Bacon coverage for the Clean Water SRF program. Specifically, during the month NACWA met with key leadership, including majority and minority staff of the Senate Environment and Public Works (EPW) Committee as well as with individual Senate offices in an effort to help move the stalled bill.

The legislation, approved by the EPW Committee with strong bipartisan support, has been delayed due to a crowded legislative calendar, changes the bill makes to the SRF State distribution formula, and Davis-Bacon prevailing wage concerns.

During NACWA’s National Environmental Policy Forum in April, public agency members met with Senate offices to urge them to support passage of the SRF in the Senate and to work toward compromises on these outstanding issues.

On the Davis-Bacon prevailing wage issue, NACWA and the Water Infrastructure Network (WIN) coalition are helping to broker a compromise between labor organizations and Republican leadership.   In the FY10 EPA appropriations bill, Congress inserted language requiring the application of Davis-Bacon to any project funded in whole or in part by FY10 CWSRF and DWSRF funds.  EPA interpreted this language broadly and applied it to all SRF projects executed in FY10 regardless of whether the project was funded with FY09 versus FY10 monies.    This has caused significant consternation among key Republican Senators who do not support EPA’s broad interpretation of the provision.  We are hoping that a compromise can be worked out whereby both sides agree to allow Davis-Bacon provisions to only apply to the FY10 federal funding portion of the SRF program and not to projects funded with other state or federal money.  If the Davis-Bacon issue can be resolved, we think the formula issues and the time needed to debate the legislation on the Senate floor can be worked out.

Given that S. 1005 passed the EPW committee with broad bipartisan support on a vote of 17 to 2, NACWA believes that it would receive similarly strong support by the full Senate.

NACWA Builds Support for Fiscal Year 2011 Clean Water SRF Funding

NACWA, working with the Office of Senator Jack Reed (D-R.I.) , a member of the Appropriations Subcommittee that oversees EPA’s budget, worked to draft and build support for FY 2011 CWSRF funding, continuing our push to increase federal funding available for clean water infrastructure projects.

As part of this effort,  Senator Reed  circulated a “Dear Colleague” letter among Senators  requesting  Senators Dianne Feinstein (D-Calif.) and Lamar Alexander (R-Tenn.), Chairwoman and Ranking Member of the Senate Interior and Environment Appropriations Subcommittee, to provide at least $3.5 billion for the Clean Water and Drinking Water SRF programs -representing level funding from Fiscal Year 2010.

Thanks in part to NACWA’s outreach, the letter garnered significant support attracting 30 signatories including Daniel Inouye (D-Hawaii), Chairman of the Senate Appropriations Committee, and other senior Senators.  As the FY 11 appropriations process continues to unfold, NACWA will press for the highest funding levels possible for the CWSRF program.  Typically, subcommittee consideration of these bills begin in the May/June timeframe in the House of Representatives, however because the healthcare debate wrapped up later than expected, the appropriations process is delayed.  NACWA will continue to keep its members apprised of the latest developments as they occur.

Trust Fund Support Grows in the House of Representatives

During April, support for The Water Protection and Reinvestment Act of 2009 (H.R. 3202) continued to grow as five additional Members of Congress signed on to the bill.  Congressman James P. Moran (D- Va.), Steve Cohen (D-Tenn.), Albio Sires (D-N.J.), John Tierney (D-Mass.), and Phil Hare (D-Ill.) all added their names to the growing list of co-sponsors.  The additions are significant as Congressman Moran serves as the Chairman of the Interior, Environment and Appropriations Subcommittee and Congressmen Cohen, Sires and Hare all sit on the House Transportation and Infrastructure (T&I) Committee – the Committee of jurisdiction for Clean Water Act issues. With these recent additions, the bill enjoys the support of 36 co-sponsors, including 12 co-sponsors from the T&I Committee.  In addition, the legislation has now gained co-sponsors for seven consecutive months.

NACWA will continue its efforts to build support for the legislation during May working with other stakeholders and members of the Water Infrastructure Network (WIN) to achieve maximum success.  In the coming weeks, NACWA will focus on gaining the support of Congresswoman Mazie Hirono (D-Hawaii), Brian Bilbray (R-Calif.) and Emanuel Cleaver (D-Mo.) among others. In addition, NACWA will begin working with other committed organizations to seek the introduction of a companion bill in the Senate.

As NACWA continues to conduct outreach on Capitol Hill, we encourage NACWA members to contact their congressional delegations in support of H.R. 3202.  NACWA would especially like to thank those members who have reached out to their Representatives as part of NACWA’s 2010 National Environmental Policy Forum in April.  If you have contacted your Representative, NACWA’s National Office would appreciate being informed of your correspondence.  Please contact NACWA’s Pat Sinicropi at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or John Krohn at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more information on how you can assist with this important effort.

Jurisdiction

Oberstar Unveils Legislation to Clarify Clean Water Act Jurisdiction

On April 21st, Congressman James Oberstar (D-Minn.), Chairman of the House T&I Committee, introduced legislation that seeks to clarify confusion on the jurisdictional reach of the Clean Water Act (CWA).  The legislation, “America’s Commitment to Clean Water Act” (H.R. 5008), seeks to eliminate uncertainties over which waters the Federal government can assert authority by replacing the term “navigable waters” with the term “waters of the United States”.

The legislation was originally introduced in the 110th Congress as the “Clean Water Restoration Act” (H.R. 2421) and was the subject of extensive hearings in the T & I Committee.  However the bill was not enacted during the 110th Congress and, therefore, has been reintroduced this term.   According to Chairman Oberstar, this latest version reflects the comments received during deliberations that occurred over the past year.  Joining Oberstar as co-sponsors of the legislation are Michigan Congressmen John Dingell (D) and Vernon Ehlers (R).

The legislation includes exemptions for specific waterbodies that would not be covered by the CWA, including waterbodies that are incorporated in wastewater treatment systems. Specifically, the legislation exempts “waters that are all or part of a waste treatment system, including treatment ponds or lagoons designed to meet the requirements of the CWA” – language that NACWA worked hard to include. This exclusion would not apply to any new treatment systems created or resulting from the impoundment of waters of the United States after enactment of this legislation.

Proponents of the legislation argue that Congressional action is needed after several Supreme Court decisions called into question the scope of the CWA’s jurisdiction.  The decisions of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and the consolidated cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers restricted the scope of the CWA to relatively permanent, standing or continuously flowing bodies of water 'forming geographic features'.  The Court also determined that the CWA applied to all waters with a "significant nexus" to "navigable waters". The term “significant nexus” included in the Court’s decision remains open to significant interpretation and controversy causing confusion over precisely which waters EPA and the U.S. Army Corps of Engineers can assert authority.  Hence, proponents of the legislation argue that Congress must take action to statutorily clarify the scope of the Act and reestablish the prevailing jurisdictional interpretation prior to the Supreme Court cases.

NACWA’s primary issue was ensuring the inclusion of the manmade waste treatment exemption in the legislation and also ensuring that the jurisdictional reach excluded groundwater sources, which was clarified in the findings section of the bill.  With these issues addressed, NACWA will be sending a letter of general support for the legislation and thanking Chairman Oberstar for addressing the concerns of the clean water community.

Climate Change

Climate Legislation Faces Uncertain Future

A compromise legislative package being negotiated by Senators John Kerry (D-Mass.), Joe Lieberman (I-Conn.) and Lindsey Graham (R-S.C.) was thrown into doubt this month when Senator Graham pulled out of negotiations over Democrats’ insistence of moving immigration reform legislation this year.  The Senators were set to unveil their package on April 26, however because of a dispute between Senator Graham and Senate Majority Leader Harry Reid (D-Nev.) over the issue of immigration reform, the unveiling was cancelled.  As of this writing, Senators Kerry and Lieberman have pledged to move forward with the package as planned and have announced that they will unveil the legislation this week.  They hope that Senator Graham will rejoin them in their effort, as well as other Republicans, but it is unclear whether they will do so.

Early indications are that their proposal will likely retain a cap on greenhouse gas emissions for certain sectors of the economy, such as electric utilities and industrial sources, as well as a system for trading pollution credits.  It is unclear how the proceeds from the auctioning of pollution credits will be distributed, however Senator Kerry indicated this week that up to two thirds of the proceeds will be returned to ratepayers either in the form of direct rebates on their electric bills or through free allowances to electric utilities to reduce the overall costs of complying with the new mandates. This would allow one third of the proceeds to be used for adaptation and deficit reduction, a key policy objective of the Obama Administration.

NACWA and a coalition of water associations and environmental organizations continue to press for inclusion of the Water Systems Mitigation and Adaptation Partnership (WSMAP) program in the compromise package — the program that seeks to ensure that public wastewater, drinking water, and stormwater management utilities receive funding for adaptation and mitigation costs — and will alert members as soon as the full package is unveiled as to the outcome of these efforts.

On the energy side, NACWA received word from  Senator Debbie Stabenow’s (D-Mich.) staff that Senator Bingaman (D-N.M.) will accept language  in S. 1462, The American Clean Energy Leadership Act of 2009, to ensure that biogas and solids produced in the wastewater treatment process qualify as renewable biomass for the purposes of a National Renewable Electricity Portfolio Standard. To bolster Senator Stabenow’s efforts, the Albuquerque-Bernadillo County Water Utility Authority-Wastewater Utility Division sent a letter of support to Senator Bingaman asking him to insert this language in his bill.   NACWA worked with Senator Stabenow on this effort for many months and this week, her staff informed NACWA that when energy legislation comes to the Senate floor for debate, Senator Bingaman will include language to this effect.  This would be a major step forward on our efforts to ensure that energy generated by the wastewater treatment process qualifies as a renewable energy source and can receive credit under a National Renewable Electricity Standard.   Senate Majority Leader Reid has repeatedly indicated that he would like the Senate to take up climate and energy legislation this year before Congress adjourns in October.

Watersheds and Sustainability

Regional Watershed Bills See Progress; Lake Tahoe Restoration Approved by EPW

The Senate EPW Committee approved The Lake Tahoe Restoration Act (S.2724) clearing the legislation for approval by the Senate.  The legislation, introduced by Senate Majority Leader Harry Reid (D-Nev.), seeks to prevent the entry of invasive species such as quagga and zebra mussels into the lake's ecosystem and restore its ecological integrity.

To accomplish this, the bill re-authorizes the original act passed in 2000 to provide up to $415 million in federal funding to restore the Lake’s basin over the next eight years.  These funds would be used for scientific research, projects to improve the Lake’s diminishing water clarity (for which it is well known) and to increase watercraft inspections for the presence of invasive species.  There are a number of regionally focused watershed bills under consideration by Congress, including bills establishing or reauthorizing water quality programs for the restoration of the Puget Sound, the Great Lakes, the Mississippi River basin, and the Chesapeake Bay.  We anticipate that all these measures will be combined into a single omnibus bill that can be enacted together.  NACWA will continue to track these bills as they move through the Congressional process.

Estuary Bill Receives House Approval

Legislation seeking to reauthorize the National Estuary Program passed the U.S. House of Representatives by a vote of 278-128 (Roll Call no. 209) on April 15.  House passage of the legislation came shortly after the bill received the approval of the House T&I Committee on March 17.

The bill seeks to reauthorize the program and in doing so address a number of concerns that have developed in implementation of the program.  Specifically, the bill would require that conservation and management plans be reviewed and updated on an ongoing basis; increase the use of science and technology, as well as the use of adaptive management techniques, by incorporating the results of ongoing evaluations of conservation and management plans; and would increase coordination efforts of multiple federal agencies when participating in conservation and management plans for estuaries included in the program. The bill would also increase the authorization level for the program by $15 million annually over a period of 6 years for a total of $350 million over the life of the bill.

NACWA shared this bill with its Legislative Affairs Committee during March soliciting member thoughts and feedback on the proposal.  The comments NACWA received on the legislation were generally positive and no strong objections were raised.

The legislation has now been referred to the Senate EPW Committee for review and approval.  NACWA will continue to track the progress of this legislation informing our members of its legislative progress.

HUD awards $100 million to the Sustainable Communities Planning Grant Program

The Sustainable Communities Planning Grant Program (the Program) was given $100 million to assist regional entities with integrated planning on water infrastructure projects involving housing and transportation.  The Department of Housing and Urban Development (HUD) initiated the Program to help build the capacity of communities to address complex challenges of growth and revitalization in the 21st century with a multi-disciplinary approach.  HUD is working with EPA to establish a number of applicants for the grants and implement water infrastructure elements to their plan.

We encourage NACWA members to apply for HUD’s Program grants and include water infrastructure components to improve environmental sustainability in your community.  If your organization is interested in applying for the Program, please call the HUD Notice of Funds Available (NOFA) Information Center as soon as possible at 1-800-HUD-8929 to submit an application.  Please contact NACWA’s Pat Sinicropi at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for additional information.

Recently Introduced Legislation of Interest

Each month the Legislative Update will include a brief list of legislation of interest that has been recently introduced and which is not referenced in the articles above.

• The San Francisco Bay Improvement Act of 2010 (H.R.5061) (Introduced on April 15, 2010): This legislation seeks a San Francisco Bay Program Office within the EPA and provides funding for restoration activities in the Bay. The bill was introduced by Congresswoman Jackie Speier (D-N.Y.) and has 10 co-sponsors.

• S. 3262 (Introduced on April 27, 2010): This legislation seeks to amend the Internal Revenue Code of 1986 to provide that the volume cap for private activity bonds shall not apply to bonds for facilities for the furnishing of water and sewage facilities. The legislation was introduced by Senator Robert Menendez (D-N.J.) and has 3 co-sponsors. In April, the House passed a package of tax-related items that included this provision in it. NACWA’s members are encouraged to contact the Association