NACWA Legislative Update June 2007

This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through June 27, 2007, provides information on the activities of the 110th Congress of interest to the nation’s clean water agencies. For more detailed information regarding NACWA activities related to specific legislation, click on the web links in selected news items, or contact Susan Bruninga in NACWA’s Government Affairs Department at sbruninga@nacwa.org or 202/833-3280.

NACWA’s Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm) provides a direct link to congressional websites where bill texts and summaries are posted. You can find NACWA letters, statements, alerts, updates and related documents under Legislative in the Member Pipeline section of the NACWA website (http://www.nacwa.org/private/leg_index.cfm).

Appropriations & Funding

FY 2008 Budget Bills Contain Key Provisions for Clean Water Agencies
Both the House and Senate Appropriations Committees have approved their fiscal year (FY) 2008 budget packages for the U.S. Environmental Protection Agency (EPA). The news is mixed, with the House package offering more generous provisions on key clean water programs than the Senate. Overall, EPA would receive $7.77 billion in FY 2008 under the Senate version, which is $48 million more than the Agency received in FY 2007. Under the more generous provisions of the House bill, EPA would receive $8.08 billion, or over $360 million more than in FY 2007, with a large piece of this increase going to the clean water state revolving fund (CWSRF).

House Budget Bill Blocks Permit Fee Proposal
Representing an important victory for NACWA, the House Appropriations Committee’s budget bill for EPA, Department of the Interior, Environment, and Related Agencies Appropriations Act of 2008 (H.R.2643), includes a provision that would block implementation of EPA’s proposed National Pollutant Discharge Elimination System (NPDES) permit fee rule. The rule, first proposed by EPA in early January, would provide financial incentives in the form of additional federal money from the Section 106 grant program to states that fund at least 75 percent of their NPDES permitting program through user fees.

NACWA strongly opposed the proposal, submitting comments in early March objecting to the rule (http://www.nacwa.org/getfile.cfm?fn=2007-03-02cmts.pdf). NACWA also joined in a coalition of key stakeholder groups allied against the proposal, holding meetings at EPA, on Capitol Hill, and at the White House Office of Management and Budget (OMB) to jointly express opposition to the proposal. These efforts helped lead to House’s action to prevent implementation of the proposed rule. Given the bipartisan opposition to the EPA proposal in the Senate Environment and Public Works Committee, however, NACWA is optimistic the House language will be included in a final post-conference package.

House, Senate Will Need to Negotiate on SRF Funding Level
The House bill requested $1.125 billion for the clean water state revolving fund (CWSRF), which is $437.4 million above the President’s request and would be $41.18 million above last year’s enacted level. The Senate bill, meanwhile, recommended a funding level of $887 million — $193 million below FY 2007 levels and $213 million below the House level. The likely result will be a number similar to last year’s funding level of approximately $1 billion.

The House bill also provided $140 million in State and Tribal Assistance Grants (STAG) for wastewater, drinking water and stormwater infrastructure projects. The specific projects were not included in the bill or accompanying report language, and negotiations in the House continue regarding when and how to reveal the specific details of these earmark projects. Under its STAG program, the Senate did not include infrastructure projects in line with the House recommendations, but did include $204 million for States to use for non-point source control projects to improve water quality and reduce contamination. These projects and funding levels will be worked out in conference after the funding bills pass the House and Senate floors later in the summer.

Appropriations Committee Touts Green Infrastructure Statement of Support
Report language that accompanied H.R. 2643, and which provides additional detail about the committee’s legislative intentions regarding the bill, strongly touts the green infrastructure effort spearheaded by NACWA and the Natural Resources Defense Council (NRDC). Specifically, the language reads “The [House Appropriations] Committee is supportive of the Agency’s efforts to foster work in the area of green infrastructure and approaches to control combined sewer overflows and storm water pollution. The Committee is aware of and supports the Agency’s April 19, 2007, partnership agreement to promote this type of infrastructure and supports Agency efforts to provide technical assistance, training, and resource materials to Federal, State, and local partners who want to implement green infrastructure projects.” NACWA will continue to support EPA’s implementation of this statement of support and the Association will be sending out a more detailed analysis of the budget bill and accompanying report language next week. The full Committee report is available on the Government Printing Office’s (GPO) website at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_reports&docid=f:hr187.110.pdf.

NACWA, WIN Meet with Key Senate Staff on Funding Legislation
NACWA, and other Water Infrastructure Network (WIN) organizations, met last week with high-level staff of the Environment & Public Works (EPW) Committee. With the House having passed the Water Quality Financing Act of 2007 (H.R. 720) — which would provide $14 billion to the CWSRF over four years and require a Government Accountability Office (GAO) study of feasible revenue sources for a clean water trust fund — at issue was the timing for the Senate to introduce similar legislation. The message to NACWA received was that it is the Senate’s objective to finish up a couple of other bills, including the Water Resources Development Act (WRDA), with the goal of having a Senate funding bill introduced immediately before or after the August recess.

There continue to be some contentious issues between the Majority and Minority, including Davis-Bacon Act prevailing wage concerns, but these have been worked out in Committee in the past on a bipartisan basis and the hope is that a similar understanding can be reached with this legislation. It is unclear who will introduce the bill — but will likely be either the leadership of the Senate Environment & Public Works Committee or the leadership of its Transportation Safety, Infrastructure Security, and Water Quality Subcommittee. NACWA and WIN’s preference is a “big four” bill comprised of the Chair and Ranking Members of both the full committee and subcommittee. As the bipartisan 308-103 vote in the House supporting H.R. 720 demonstrated, however, clean water funding is an issue that commands attention and can engender broad, bipartisan support. NACWA will keep members apprised of this important effort.

Farm Bill

NACWA, Coalition Build on Momentum in Farm Bill Advocacy Efforts
NACWA continues to press members of Congress to keep water quality and funding for the Conservation Title a top priority in Farm Bill negotiations. This week the water sector coalition working on the Farm Bill sent a letter (http://www.nacwa.org/getfile.cfm?fn=2007-06-13wscl.pdf) to key leaders of the U.S. House of Representatives, including Rep. Collin Peterson (D-Minn.), chairman of the House Committee on Agriculture, thanking them for “including cooperative opportunities to improve water quality and quantity in the Conservation Title of the 2007 Farm Bill,” and adding that their “leadership in developing multi-stakeholder programs to implement regional, watershed-based conservation projects is greatly appreciated.” Specifically, the letter noted that the Conservation Title of the Farm Bill as proposed includes two key programs — the Regional Surface and Groundwater Enhancement Program and Cooperative Conservation Partnership Initiative — which allow farmers, ranchers and forest landowners to work with their water and wastewater utilities to achieve shared environmental goals in their watersheds.

The letter also asks these key House leaders to ensure that, while the Conservation Title as introduced constitutes a critical first step, they continue throughout the legislative process to “make clear that both public and privately owned drinking water and wastewater utilities are eligible to enter into these partnerships.” The coalition includes NACWA, the American Public Works Association (APWA), American Water Works Association (AWWA), Association of California Water Agencies (ACWA), Association of Metropolitan Water Agencies (AMWA), Coachella Valley Water District, Inland Empire Utilities District, National Association of Water Companies (NAWC), National Water Resources Association (NWRA), the U.S. Conference of Mayors, WateReuse Association, and the Water Environment Federation (WEF).

The focus is two-fold: keep momentum on behalf of these programs as House legislation advances and seek to ensure similar or even more generous funding levels for similar programs as the Senate prepares to introduce its own Farm Bill legislation. In line with the latter goal, the water sector coalition sent a letter June 20 to all Senators, stating that “we urge the Senate, as it draws up its own Farm Bill conservation title, to authorize a program that takes similar approaches on a regional or watershed basis to improve or protect water quality. Water and wastewater systems, whether public or investor owned, are logical facilitators of local cooperative projects. They have expertise in monitoring water quality, treating water, protecting waters, and they can be conduits among different land owners.” This letter is available on NACWA’s Legislative Correspondence & Outreach webpage (http://www.nacwa.org/getfile.cfm?fn=2007-06-20senateltr.pdf).

Clean Water Act Jurisdiction

Scope of Clean Water Act Remains Focus of Congress, Supreme Court and EPA
The struggle over Clean Water Act (CWA) jurisdiction intensified recently with the introduction of a bill in the House of Representatives that seeks to clarify that certain isolated non-navigable waters should fall under the CWA’s jurisdiction. The Clean Water Restoration Act of 2007 (H.R. 2421) (http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR02421:), which was introduced by Reps. James Oberstar (D-Minn.), chair of the House Transportation and Infrastructure Committee, and John Dingell (D-Mich.), chair of the House Energy and Commerce Committee. The bill was also quickly followed by the release of guidance from the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) directing field staff on the process for making jurisdictional determinations.

The bill is intended to clarify the jurisdiction of the CWA and ensure broad protection for isolated, non-navigable waters by removing all references to “navigable waters” from the CWA and replacing them with the term “waters of the United States.” The new “waters of the United States” term will include all traditionally navigable and non-navigable waters, including isolated, intrastate water bodies. The bill would not rely solely on interstate commerce to assert federal CWA jurisdiction but would instead employ broader “legislative power of Congress under the Constitution” language. Also notable is that the legislation does not include an exemption for man-made bodies of water that are part of waste processing systems, such as isolated wetlands or stormwater retention units. Such an exemption, however, has been included for many years in EPA and Corps regulations. No companion bill has yet been introduced in the Senate, but Sen. Russ Feingold (D-Wis.) has circulated draft language that is very similar.

Legislation, Guidance Attempt to Rectify Concerns Raised by Court Cases
H.R. 2421 and a joint June 5 EPA/Corps guidance (discussed below) respond to recent Supreme Court rulings, including those last year in Rapanos v. United States and Carabell v. United States (Rapanos/Carabell) that many believe eroded and further confused the scope of CWA jurisdiction. H.R. 2421 has attracted much attention from both environmental and industry groups, in part because it has quickly attracted 157 cosponsors. Activist groups and some conservation organizations strongly support the bill, viewing it as a means for reversing the effect of the high court rulings, which they argue could leave up to 20 million acres of wetlands and other waters unprotected unless states step in to fill the regulatory void. A coalition of groups representing homebuilders, counties, commercial developers, mining interests, and some industrial dischargers disagree and say the bill would greatly expand the reach of the CWA with sweeping, unintended consequences and would only lead to more litigation regarding permit requirements under the CWA Section 402 National Pollutant Discharge Elimination System (NPDES) program and the Section 404 wetlands programs.

NACWA has also been reviewing guidance (http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html) recently released by EPA and Corps, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, that seeks to clarify when a CWA Section 404 permit is needed before conducting activities in wetlands, tributaries, and other waters. The guidance interprets the Supreme Court’s decision in Rapanos/Carabell and was released to ensure nationwide predictability and consistency in identifying those wetlands and other waters that are subject to CWA jurisdiction. Initial reaction to the guidance has been mixed but some industry groups have already threatened litigation over whether the guidance overreaches acceptable jurisdictional boundaries as set out by the CWA and the relevant Supreme Court decisions.

NACWA is closely tracking H.R. 2421 and sent out a June 4 Legislative Alert (http://www.nacwa.org/private/legreg/legalrts/la07-2.cfm) seeking comment from its members on how they could be affected by it. NACWA also held a timely June 13 Late-Breaking Legal Issues Call featuring key policymakers and stakeholders who discussed the pros and cons of the legislation and the guidance. NACWA will continue to work with key Congressional staff to discuss the various impacts the legislation will have on the Nation’s clean water agencies and to seek fixes to H.R. 2421 that address these vital concerns.