» Clean Water Current Archive

June 19, 2009

NACWA Discusses Nutrient Legal Analysis with Key EPA Staff

NACWA met with key EPA Office of Water and Office of General Counsel staff Tuesday to initiate a dialogue on the Association’s recently completed legal analysis of EPA’s authority under the Clean Water Act to address nutrients as part of secondary treatment.  Through its Critical Issues Action Initiative, NACWA has been working to further develop the legal and technical arguments it first made in a February 2008 letter  to EPA urging the Agency to deny the Natural Resources Defense Council’s (NRDC) petition to add limits for nitrogen and phosphorus to the definition of secondary treatment.  EPA has not yet responded to the petition, but has been working to formulate a strategy and address those areas where it feels particularly vulnerable.  During the meeting NACWA outlined some of the key findings from its legal analysis that detail where NRDC’s claims lack merit and offered a detailed evaluation of the limits of EPA’s authority to include nutrients as a part of the secondary treatment standard.

NACWA plans to maintain the dialogue with EPA policy and legal staff over the next couple of months as the Agency continues to explore its options for responding to the petition.  Also during the meeting, NACWA provided a brief overview of the information in its soon-to-be-final technical issues paper, including an analysis of the costs associated with controlling nutrients at both point and nonpoint sources.  When this document is complete it will be merged with the legal analysis and sent to members via an Alert.  At this point it is unclear when NRDC may file suit against EPA on the issue.  Both the legal and technical issue papers were developed to better position NACWA to engage in such a potential lawsuit.  Currently, the Association remains focused on its efforts to persuade EPA to formally deny the petition.

NACWA Pushes for Water Sector Amendment to House Climate Bill

The full U.S. House of Representatives began consideration this week of 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.  NACWA provided an analysis of the bill in Legislative Alert 09-08.

NACWA and a coalition of water associations and environmental groups have been working with staff for Rep. Lois Capps (D-Calif.) to shore up support for her Water Systems Adaptation Act of 2009  (H.R. 2969), with the goal of this bill serving as an amendment to H.R. 2454, which is expected to be brought to the floor for a vote today (Friday).  Capps introduced the legislation June 19 and NACWA has been successfully advocating for co-sponsors, meeting with many congressional office staff and sending a June 19 letter  in support of the legislation.  To date, co-sponsors of the measure now include Reps. Russ Carnahan (D-Mo.), Earl Blumenauer (D-Ore.), Allyson Schwartz (D-Penn.), Doris O. Matsui (D-Calif.), Grace F. Napolitano (D-Calif.), Donna Edwards (D-MD), Jay Inslee (D-Wash.), Jim Costa (D-Calif.), George Miller (D-Calif.), James Moran (D-Va.) and Mike Thompson (D-Calif.).  NACWA is appreciative of the efforts its members made to help secure co-sponsors for the legislation.

Initial indications are, however, that it will be very difficult to get the Capps bill included either in the manager’s amendment or as a separate amendment to the Waxman-Markey bill.  As a result, NACWA is already 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 Environment and Public Works (EPW) Committee, has set a September 18 deadline to complete work on her climate legislation.  Boxer has committed to several hearings prior to the bill’s mark-up process in August 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.  Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more information.

NACWA Comments on OMB Buy American Guidance; Garners Info from EPA Webcast

NACWA submitted comments  June 22 to the Office of Management and Budget (OMB) expressing concerns with OMB’s April 2009 interim final guidance  regarding the Buy American requirements in the American Recovery and Reinvestment Act (ARRA).  NACWA’s comments convey the Association’s concern that OMB’s restrictive interpretation of the Buy American requirements for stimulus projects could negatively impact the clean water community, potentially slowing the implementation of wastewater projects with ARRA funds and delaying much-needed job creation and infrastructure improvements in communities across the nation.  (For more information on the ARRA Buy American provisions and their potential impact on clean water utilities, please see Legislative Alert 09-09, 09-11, and 09-13.)  NACWA’s comments highlight the unique nature of wastewater projects and why the Buy American requirements could be unduly burdensome for clean water utilities attempting to use ARRA stimulus funds.  The comments request that OMB’s final ARRA guidance document direct EPA to make broad use of its waiver authority regarding Buy American requirements for wastewater projects, emphasizing the job creation and infrastructure improvements goals of the ARRA as paramount considerations for EPA when reviewing individual project waiver requests.  OMB is expected to review all public comments submitted on the interim final guidance and to take the comments under consideration in publishing a final guidance document.  The timing of publication by OMB of the final guidance is not yet known.

In related news, EPA held a webcast this week on Buy American issues to further clarify how the Agency is interpreting Buy American requirements for wastewater projects funded through the ARRA.  A copy of the EPA presentation can be found by clicking here .  The webcast covered a variety of issues relating to Buy American requirements, including how EPA is implementing the provisions in ARRA projects and what kinds of national waivers the Agency has already issued.  The presentation also discussed how individual clean water agencies can apply for individual waivers for their specific projects.  Additional resources for NACWA members on Buy American issues are available on the Infrastructure Funding page of the Association’s website.  NACWA will continue to track developments regarding the Buy American requirements, including any additional national waivers the may be issued, and report back to the membership.

Senate Appropriations Advances EPA Budget Bill with $2.1 billion for CWSRF

On Tuesday, the Senate Appropriations Subcommittee on Interior, Environment and Related Agencies marked up its version of the 2009 Interior and Environment Spending Bill and included $2.1 billion for EPA’s Clean Water State Revolving Fund (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.  The House Committee has approved funding in the amounts of $1.4 billion and $667 million for these two programs, respectively.  Under the Senate package, EPA as a whole receives $10.19 billion, compared to $10.46 billion in the House package.

NACWA was also 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 given out in the form of grants to fund projects to build green infrastructure improvements or implement water efficiency/conservation measures.  At press time, the full Senate Appropriations Committee was in the midst of its markup of the bill.  NACWA will continue to follow the budget process and keep members informed of important developments.

Homeland Security Committee Completes Markup of Chemical Security Bill

This week, the House Homeland Security Committee completed its markup of H.R. 2868, the Chemical Facility Antiterrorism Act of 2009 (CFATS).  The approved draft puts security of wastewater facilities under the jurisdiction of the Department of Homeland Security, while it places drinking water facilities at EPA.  After passing the Homeland Security Committee, the bill is now being considered by the House Energy and Commerce Committee.  NACWA remains opposed to separate regulatory frameworks for wastewater and drinking water facilities and feels that two separate regimes would create a cumbersome and inconsistent layer of bureaucracy with the possibility for miscommunication and gaps in coverage.  The Senate has yet to begin its deliberations on this issue.

In a related matter, NACWA sent a letter  last week in support of H.R. 2883, the Wastewater Treatment Works Security Act of 2009, introduced by Rep. Eddie Bernice Johnson (D-Texas) and co-sponsored by Rep. James Oberstar, Chair of the Transportation & Infrastructure (T&I) Committee, which places all wastewater facilities under the purview of EPA.  This bill allows the T&I Committee to further its claim over jurisdiction of this issue and be part of the negotiations as the chemical security bill moves to the House floor.  Adding further to the complexity of this situation, the House Appropriations Committee’s Department of Homeland Security (DHS) funding bill contains a provision to continue the CFATS program in its current form for one year, per the Obama administration’s request.  This one-year extension of the program will help provide some additional time for NACWA and the key House Committees to straighten out this complicated jurisdictional situation.  There is no timetable for House floor consideration of H.R. 2883 and NACWA will continue to advocate for sensible security regulations for water infrastructure and will keep members apprised of important developments as they happen.

Hotel Deadline for NACWA Summer Conference Extended Until Today - June 26!

If you haven’t already made your hotel reservations for NACWA’s July 14-17 Summer Conference and 39th Annual Meeting, please do so today, June 26, to secure your reservation at the InterContinental Milwaukee at the special conference rate.  Please contact the hotel directly at 414/276-8686 to make your reservations.  Should you have difficulty securing a hotel registration today, or in the coming days, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it for assistance.  The conference, The New Regulatory Climate… Clean Water Agencies Prepare to Act, will include a panel presentation, “Climate Change and Energy: New Opportunities for Utilities,” to discuss how the current national focus on climate change and energy use will affect utilities.  John Gasper, Strategic Area Manager for Environmental Policy, Planning & Analysis for the Environmental Assessment Division of Argonne National Laboratories, will give a presentation on the energy-water nexus.  Case studies will then be presented by utilities that have taken practical steps to increase energy efficiency and to prepare themselves for climate change impacts and potential climate change regulation.  More information about the Summer Conference, including a complete program, is available on NACWA’s website at www.nacwa.org/09summer.

Save the Date – July 9 NACWA Conference Call on Stimulus Package Implementation Planned

As the February 17, 2010 targeted deadline for the spending of American Recovery and Reinvestment Act of 2009 (ARRA or stimulus package) funds rapidly approaches, NACWA has scheduled a conference call for July 9 at 2:00 pm Eastern to gather information from its public agency members regarding their experiences implementing ARRA-funded clean water projects.  Your participation in this call will help NACWA continue to update information it is receiving from its public agency members to further improve its advocacy efforts and share lessons learned with the full membership.  Registration information for this installment of NACWA’s ongoing series of information-sharing conference calls, called The Stimulus Stump . . . Giving a Voice to Clean Water Utilities, will be forwarded to you soon.  There is no registration fee to participate, as the calls are a benefit of membership to NACWA member agencies.  NACWA will provide registration information to the membership early next week but please save the date for this important call!