From BNA Daily Environment Report May 7

By Linda Roeder

The Senate Environment and Public Works Committee is expected to mark up legislation May 14 that would reauthorize the Environmental Protection Agency's clean water and safe drinking water state revolving funds and revise the funding formula, according to a Senate aide.

The bipartisan bill, which will be introduced “any day,” will be “very close to something that can pass muster” in the Senate, predicted Luis Luna, a Republican aide on the Environment and Public Works Subcommittee on Water and Wildlife.

“We are as close as we have ever been to passing a bill in both houses,” Luna said May 5.

The bill was among several water quality issues discussed by Luna and other congressional aides during a national clean water forum sponsored by the National Association of Clean Water Agencies and the Water Environment Federation.
The reauthorization bill is being sponsored by Sens. Barbara Boxer (D-Calif.), the committee chairman; ranking minority member James Inhofe (R-Okla.); Benjamin Cardin (D-Md.), chairman of the Environment and Public Works Subcommittee on Water and Wildlife; and Mike Crapo (R-Idaho), the subcommittee ranking member, according to Luna.

A ‘Reasonable' Formula
In developing the bill, Luna said, senators struggled to come up with a “reasonable” formula for awarding funds, based upon “not just a cold political calculus” but on the needs of states with growing or declining populations. In both cases, Luna said, water infrastructure needs have grown.

The revised formula for determining state funding, means “every state will be a winner,” he said. Reauthorizing legislation passed by the House March 12 does not address the funding formula. The $18.5 billion House-passed Water Quality Investment Act includes $13.8 billion for the clean water state revolving fund, but does not include funding for the state drinking water revolving fund (47 DEN A-13, 3/13/09).

The Republican aide said the Senate bill would not include Davis-Bacon Act provisions requiring that infrastructure project workers be paid local prevailing wages, although there may be an effort to insert such provisions when the bill reaches the Senate floor. Republicans oppose the inclusion of prevailing wage requirements and consider it a separate issue, Luna said.

Green infrastructure was another issue discussed in drafting the bill, Luna said. Some senators wanted to include a requirement that 15 percent of funds be used to support green infrastructure projects. Instead, he said, the draft encourages, but does not mandate states to use green practices. Luna did not discuss what types of projects are considered green infrastructure.

The Water Quality Investment Act (H.R. 1262), passed by the House March 12, defines green infrastructure projects as those that meet certain benchmarks for energy and water conservation (47 DEN A-13, 3/13/09).

A spokeswoman for Democrats on the Environment and Public Works Committee declined to comment on the measure May 6.

Republicans Seek Hearing on Jurisdiction Bill
Committee members also have discussed whether to mark up in the same meeting the Clean Water Restoration Act (S. 787), Luna said. “The decision is up in the air,” he added (62 DEN A-19, 4/3/09).

“All of the Republicans on the committee asked the majority not to bring up this bill unless there's a hearing,” Luna said, adding, “The majority has not informed us.”

The Clean Water Restoration Act (S. 787), introduced April 2 by Sen. Russ Feingold (D-Wis.) with 23 co-sponsors, would amend the Clean Water Act to clarify its jurisdiction over U.S. waters. The bill would replace the term “navigable waters” with the term “waters of the United States” for determining what waters are protected by the act.

Debate on the scope of federal jurisdiction over the nation's waters—which waters are subject to regulation under the Clean Water Act and how these waters are defined—has escalated since the 2006 Supreme Court decision in Rapanos v. United States (126 S. Ct. 2208, 62 ERC 1481 (2006)).

In Rapanos, a majority of the Supreme Court failed to agree on the extent of federal jurisdiction over wetlands under the Clean Water Act, which currently applies only to “navigable waters.”

View From House
Ryan Seiger, counsel for the majority on the House Transportation and Infrastructure Committee, said at the forum he was “strongly encouraged” by the Senate's action on the reauthorization bill. “It sounds to me, from a policy consideration, we're not that far apart,” he said.

As for the Senate's Clean Water Restoration Act, Seiger said, “Clearly we're watching it, but we're going to draft our own bill.”

House Transportation and Infrastructure Committee Republicans, however, have “serious concerns” about Clean Water Restoration Act being drafted by committee Democrats, said Jon Pawlow, the committee's minority counsel.

“Our fundamental concern is the legislation would vastly expand jurisdiction under the Clean Water Act,” Pawlow said. “It could interpret the language to federalize all inter- and intrastate waters in wet areas. More chilling, it could federalize activities affecting these waters. It would be back-door regulation.”

Pawlow said the committee also is discussing possible clean water trust fund legislation. “It's potentially very controversial. The issue is who is going to pay for it,” he said.

The Government Accountability Office is expected to release a draft report late this month addressing the feasibility of creating a clean water trust fund and addressing funding sources, Pawlow said.

The GAO will likely undertake a second study on alternative funding mechanisms, he said. There are many ways to structure projects with an infusion of public or private money that give communities control, Pawlow said. “We will look and see what the GAO comes up with.”

Rep. Blumenauer Developing Trust Fund Bill
Janine Benner, legislative director in the office of Rep. Earl Blumenauer (D-Ore.), said the congressman is drafting water trust fund legislation that could involve a variety of water-related fees and taxes on agriculture, the pharmaceutical industry, or other industries.

“Those responsible for contributing to pollution should pay for the cleanup,” she said. The fees could be simple and easy to administer.”Such legislation could include a fee on bottled water; a “flushables,” or water disposal fee; pesticide fees; or other fees, Benner said.  Blumenauer, who serves on the House Ways and Means Committee, expects to draft water trust fund legislation soon after GAO releases its report, Benner added.

She said the congressman has been looking at the overall issue of how to rebuild and renew the nation's infrastructure, whether a larger federal role is necessary, and who is going to pay for it.