» Update Archive

This edition of NACWA’s Legislative Update, current through July 1, 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 .

During June, NACWA continued to make progress on items of importance to our members including the related arenas of funding, financial capability and stormwater management.  NACWA also played a critical role in securing a Senate companion bill for The Green Infrastructure for Clean Water Act of 2009 introduced by Senators Tom Udall (D-N.M.) and Sheldon Whitehouse (D-R.I.) the week of June 28.

Funding

NACWA Continues Push for Legislation to Increase Funds for Clean Water

During June, progress towards passage of the Water Infrastructure Financing Act (S.1005) by the Senate continued to encounter stumbling blocks due to procedural issues regarding how to deal with Davis-Bacon prevailing wage issues  as well as the recent release of the much-anticipated U.S. Environmental Protection Agency’s (EPA) 2008 Clean Watersheds Needs Survey (CWNS).  S. 1005 would provide approximately $38 billion for water and wastewater infrastructure projects over the next five years.

While there is significant congressional support for infrastructure funding overall, the devil continues to be in key details surrounding the bill.  Senate Republican leadership continues to have concerns over how EPA is implementing prevailing wage provisions in the Fiscal Year (FY) 2010 EPA budget bill and has sought support for a legislative fix that is controversial among some key Water Infrastructure Network (WIN) member organizations.   The WIN coalition will continue to seek a path forward on this issue in order to allow the Senate to bring the bill to the Senate floor where Davis-Bacon issues can be dealt with procedurally.

Even if the Davis-Bacon issues are resolved, there are likely to be Senators opposed to the bill due to the revised formula governing the distribution of capitalization grants to the States.  This issue was further complicated by the release of the 2008 CWNS.  Should the bill continue to stall, the new numbers contained in this document will likely require Senate staff to once again revise the formula since the proposed formula contained in S. 1005 is based on 2004 CWNS figures.  The 2008 CWNS does, however, cite a staggering estimate of $298.1 billion in unmet clean water needs — a 17% increase over the 2004 assessment.  The estimate includes $187.8 billion for wastewater treatment and collection systems, $63.6 billion for combined sewer overflow corrections, and $42.3 billion for stormwater management. These figures clearly demonstrate a growing need for federal action despite some of the complexities being posed by prevailing wage and formula issues.  For this reason, NACWA continues to work to promote the passage of S. 1005 and legislative proposals that would provide a long-term sustainable funding mechanism for the SRF.

Affordability

NACWA Focuses Affordability Efforts on Key House and Senate Members

NACWA continues to make significant progress in its efforts to ensure that federal policies recognize the financial constraints facing clean water utilities.  During June, NACWA pressed key Members of the U.S. House of Representatives and Senate to support a  request to include language in the FY 2011 Interior, Environment and Related Agencies Appropriations bill requiring EPA to update its 1997 guidance, “Combined Sewer Overflows—Guidance for Financial Capability Assessment and Schedule Development.”

Because this provision is viewed as establishing a new policy for EPA, appropriators are reluctant to attach the language without the approval of the relevant authorizing committees.  As a result, on June 8, NACWA met with Congressman James Oberstar (D-Minn.), Chairman of the House Transportation and Infrastructure Committee, to seek his support of the request.  Chairman Oberstar was sympathetic to this message and while he indicated he would prefer to see this affordability request enacted through the authorization process, he did not indicate opposition for going forward through the appropriations process.

NACWA will continue to work with Representatives Steven LaTourette (R-Ohio) and Tim Ryan (D-Ohio) to include the provision in the House FY11 appropriations bill for EPA’s budget.  The appropriations subcommittee with oversight of the FY11 EPA bill is expected to take up consideration of it after Congress returns from its July 4th recess.

Stormwater

NACWA Efforts Help Spur Bills Requiring Federal Payment of Stormwater Fees

Following an announcement that federal facilities in Washington, D.C., would not pay a recently enacted impervious surface area fee, NACWA has taken a strong and vocal advocacy position that federal entities, like any other entity, must pay stormwater and related environmental fees.   In line with NACWA’s encouragement, Senator Benjamin Cardin (D-Md.), Chairman of the Senate Water and Wildlife Subcommittee, introduced legislation (S. 3481) clarifying that fees charged for the control and abatement of water pollution, including stormwater management fees, shall not be considered a tax and, therefore, are required to be paid by federal agencies pursuant to their obligations under Section 313 of the Clean Water Act (CWA).  The legislation was approved on a voice vote by the Senate Environment and Public Works (EPW) Committee on June 30, 2010 and will likely make it through the Senate without much opposition.

NACWA has made the legislation’s success a top priority because municipalities need to be able to rely on stormwater fees from all contributors to the challenges caused by stormwater runoff to ensure viable control measures can be implemented in line with federal requirements.  NACWA is seeking the introduction of companion legislation in the House and has held productive discussions with Representatives Norm Dicks (D-Wash.), James Moran (D-Va.), Eleanor Holmes Norton (D-D.C.), and Gabrielle Giffords (D-Ariz.).  Based on these discussions, NACWA anticipates the introduction of a House companion bill in the near future.

While NACWA pursues legislative solutions we are also working within the Obama Administration to reach a favorable executive decision on the matter.  On June 4, representatives from NACWA met with officials from the Department of Justice’s (DOJ) Environmental and Natural Resources Division.  During the meeting, the officials indicated they are sympathetic to our concerns and that a decision is expected before October 2010.  It is anticipated that the decision will include a recitation of factors and applicable case law that could be used as guidance in other jurisdictions helping to limit the number of disputes occurring nationally.  While NACWA received a favorable response from attorneys in DOJ’s Environment and Natural Resources Division, attorneys from the Department’s Tax Division will also provide their recommendations.  NACWA is currently seeking a meeting with appropriate personnel in this department and will keep members informed of developments on this issue as they occur.

At the same time, NACWA continues to poll its members to gain a better sense of the scope of federal nonpayment of clean water fees.  Members that have not yet responded to the brief survey previously circulated, are asked to send any information regarding your utilities’ experience with non-payment of stormwater or wastewater fees by federal agencies to Thea Graybill, NACWA’s Government Affairs Assistant, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Green Infrastructure for Clean Water Act Introduced in Senate

Senator Tom Udall (D-N.M.) and Sheldon Whitehouse (D-R.I.) introduced a Senate version of The Green Infrastructure for Clean Water Act (S. 3561) this week.   The companion bill represents the culmination of months of extensive outreach by NACWA members, staff and supporting partners. At the same time, the legislation has garnered further support in the House of Representatives with two co-sponsors recently joining the bill.  The new co-sponsors include Ben Chandler (D-Ky.) and Kathy Castor (D-Fla.).  As NACWA continues to build support for this legislation, we encourage our public utility members to contact their local Representatives and Senators and urge them to co-sponsor H.R. 4202 and S. 3561.

Watersheds and Regional Waterbodies

On June 30, the Senate EPW Committee reported out multiple bills concerning regional watershed efforts: The Gulf of Mexico Restoration and Protection Act (S. 1311), The Columbia River Basin Restoration Act (S. 3025),  The Great Lakes Ecosystem Protection Act (S. 3073),  The San Francisco Bay Restoration Act (S. 3539), The Clean Estuaries Act (S. 3540), The Puget Sound Recovery Act (S. 2739), The Long Island Sound Restoration and Stewardship Act (S. 3119), and The Chesapeake Bay Clean Water and Ecosystem Restoration Act (S. 1816).  These bills passed on a voice vote after compromises were struck between Republican and Democratic members on the Committee on key elements of the legislation.

Of particular interest given NACWA’s close involvement in developing the legislation were the modifications made to S. 1816 — the Chesapeake Bay bill.  In order to ensure bipartisan support for the bill, changes were made to eliminate the section in the bill that codified the Chesapeake Bay total maximum daily load (TMDL).  Under the current Chesapeake Bay program, States would still need to abide by TMDL load and wasteload allocations.  Other revisions would limit EPA’s enforcement review to only those actions called for in the State Watershed Implementation Plans (WIPs) and prevent EPA from imposing regulatory controls that were not already specified in these WIPs.

On the House side, Representative Tim Holden (D-Pa.) introduced an alternative bill for the Chesapeake Bay restoration effort –The Chesapeake Bay Program Reauthorization and Improvement Act (H.R. 5509).  This bill focuses primarily on voluntary incentives for agricultural producers to control nutrient run-off from their farms and establishes a water quality trading program.  The bill has been referred to the House Transportation and Infrastructure Committee where staff is working to merge it with a Representative Elijah Cummings’ (D-Md.) bill that closely mirrors the Senate bill.  It is unclear when the House will take up this measure.