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The Republican-controlled U.S. House of Representatives recently passed a Continuing Resolution, H.R. 1, to fund the federal government for the remainder of fiscal year (FY) 2011 at spending levels significantly lower than those proposed by the Administration in its FY11 budget and those that supported FY10 federal operations.  Overall, the House proposal slashes $60 billion from federal domestic discretionary spending for the remainder of the fiscal year – effectively taking federal expenditures down to FY 2008 levels and satisfying a campaign pledge that House Republicans made when they assumed control in November. 

The U.S. Environmental Protection Agency (EPA) suffered a $3 billion overall spending cut, $950 million of which was taken from the Drinking Water and Clean Water  State Revolving Fund (DWSRF & CWSRF) programs.  An additional $607 million was slashed from various other clean water programs, including a $250 million cut to the Great Lakes restoration effort and a $400 million cut to EPA’s Environmental Programs account which funds EPA’s Office of Water.  Thus, nearly half of the House’s cuts to EPA’s budget were taken from programs that support investments in clean water. 

H.R. 1 also contains several provisions that would prevent EPA from going forward with key policy initiatives under the Clean Water Act (CWA), including a number of programs of interest to NACWA members.  Three of these provisions include restrictions on EPA’s ability to clarify jurisdictional conflicts arising from recent Supreme Court cases, implement plans for restoring the Chesapeake Bay, and establish nutrient criteria for Florida’s lakes, rivers and streams.  Given that limits to implementing such programs in appropriations are limited to the duration of that budget year, it is also unclear how these measures would, if at all, impact the Agency, where, for example Florida’s nutrient criteria implementation (see more below) is not scheduled to begin for another 15 months, after which time HR 1 would no longer be in effect. 

  
House Bill Prohibits EPA from Releasing Key Guidance Document

Sec. 1747 of the House bill prohibits the use of any funds to implement, administer, or enforce a rule or guidance document pertaining to the definition of waters of the US under the CWA.  The provision would basically stop EPA from moving forward this fiscal year with a guidance document, scheduled for release in the near future, clarifying how determinations of CWA jurisdiction should be made by States, the U.S. Army Corps of Engineers (the Corps), and by EPA itself.  The guidance would mostly impact jurisdictional decisions regarding development near and around wetlands and was viewed as necessary by EPA and the Corps because of the lack of a clear jurisdictional test to emerge from the Supreme Court case of Rapanos v. United States, 547 U.S. 715 (2006), which has led to conflicts in jurisdictional determinations between EPA and the Corps.  When the Democrats controlled the House, this issue was a top priority of then-Chair of the House Transportation and Infrastructure Committee, James Oberstar (D-Minn.), who attempted to enact legislation to remove the term “navigable” from the CWA.  Though NACWA supported the effort on condition that the wastewater treatment exemption would remain part of the definition— among other fixes and clarifications — the effort never succeeded due to strong opposition by a number of key groups, including some developers and agricultural interests.  

As EPA continues to work on guidance, and possibly also develop rules, to clarify these jurisdictional issues, NACWA is again being asked to weigh in and will be seeking guidance from its members on this going forward.   

Amendment Prohibits Funds to Develop TMDL, Watershed Plans for Chesapeake Bay

An amendment offered by Congressman Robert Goodlatte (R-Va.), Vice Chairman of the House Agriculture Committee, would prohibit the use of funds for the remainder of this fiscal year from being used to develop, promulgate, evaluate, implement, provide oversight to, or backstop total maximum daily loads (TMDL) or watershed implementation plans for the Chesapeake Bay Watershed.  If enacted, the provision would essentially prevent EPA and Chesapeake Bay States from moving forward on their core restoration strategy for the Chesapeake Bay which relies on implementation of a TMDL for the Bay and development of Watershed Implementation Plans to achieve the loads as required by Sections 303(d) and 117 of the CWA.  EPA is under a number of court orders to finalize the TMDL and undertake implementation of it.  The amendment was accepted along a mostly party line vote of 230 to 195, with 15 Republicans voting against the amendment and only eight Democrats, half of whom serve on the House Agriculture Committee, supporting it. 

Several NACWA members who operate in the Bay watershed have voiced concerns over the TMDL and EPA’s approach to backstops should the States fail to achieve load reductions from other sources. 

Amendment Prohibits Funds to Implement Water Quality Standards for Florida

Finally, an amendment offered by Congressman Tom Rooney, a second term Republican from Florida who Chairs the Livestock, Dairy and Poultry Subcommittee of the House Agriculture Committee, would prohibit the use of funds for the remainder of this fiscal year from being used to implement, administer or enforce an EPA rule setting numeric nutrient water quality standards for Florida’s lakes, rivers and streams.  The EPA rule, which set a fifteen month delay for implementation in any case, would, as a result, be little impacted by this amendment and would require a similar amendment or language to be added in the FY 2012 budget bill in order for such action to be timely. 

Establishing numeric criteria for nutrients in flowing waters is a concern for NACWA members who believe that there is a lack of a sound scientific basis upon which to base the criteria and the consequent investments that would need to be made in order to comply with them.  Just prior to the vote, a letter was circulated to Florida’s Congressional delegation from organizations representing primarily agri-business interests in support of Congressional action to restrict EPA’s ability to enforce this rule.  Again, the amendment was agreed to along mostly a party line vote of 237 to 189, with 17 Republicans voting against it and 16 Democrats supporting it.  NACWA continues to work on this issue and to build on its successful October nutrient summit to help EPA develop a more flexible approach on nutrients that the States could more readily implement. 

Budget Discussions Exemplify House Goal to Limit EPA Activity

The provisions contained in the House’s spending package demonstrate several important policy perspectives on the role of EPA, the CWA in general, and how the appropriations process can be used to articulate and achieve policy goals. 

House Republicans have made it clear that a key priority is to limit EPA’s ability to implement environmental laws enacted by Congress in a way that would impose undue burdens on the economy, jobs, or constituencies believed to be the engines of such growth.  Since assuming control of Congress, Republicans have emphasized a plan to conduct aggressive oversight of EPA to prevent the Agency from over-reaching.  This is being put into action largely by restricting EPA’s funding and making it impossible for the Agency to implement certain CWA programs.  HR 1 exemplifies this approach but the success of this approach is questionable as the bill must still be negotiated with the Senate and the Administration. 

NACWA Activity and Next Steps

As many NACWA members prepare to participate this week in the March 1-2, Money Matters Summit and Fly-In in Washington, DC, it is clear that the issue of regulatory reform and prioritization is a timely issue at the top of national policy-makers’ agendas. The Association would like to ensure that the overall political will to do more with less and to re-think business-as-usual attitudes toward the CWA is channeled into shifting the paradigm of CWA compliance in a lasting way with the support of both political parties.  NACWA has created key documents under the Money Matters — Smarter Investment to Advance Clean Water banner that provide a roadmap for how this can be done.  For more information on NACWA’s advocacy efforts under the Money Matters umbrella, see Advocacy Alert 11-05 and the Money Matters website for key documents associated with the campaign. 

Also, NACWA will continue to advocate in the Senate to ensure the highest possible level of support for the CWSRF and clean water programs for FY 2011 and 2012 as these negotiations continue to unfold.  NACWA will also continue to pursue dedicated funding via a trust fund as well as funding linked more closely to water quality improvements in the upcoming Farm Bill negotiations. 

For more information on budget issues, please 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 .