AMSA July 2002 Legislative Update

This edition of AMSA’s Legislative Update, current through August 23, 2002, provides a summary of recent Congressional activities that affect the nation’s publicly-owned treatment works (POTWs). For more detailed information regarding AMSA activities related to specific legislation, click on the web links at the end of selected news items, or contact AMSA’s Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org.

AMSA members can track congressional action on individual bills through AMSA’s Bill Tracker. The Tracker provides a direct link from AMSA’s web site to congressional web sites where bill texts and summaries are posted, allowing members to research relevant federal legislation. The site also includes the status and most recent action taken on all federal legislation through a link to the Library of Congress’ “Thomas” web site. To increase the value of this essential resource, the Bill Tracker is routinely updated on the AMSA web site. To bookmark the Bill Tracker, go to http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm.

Clean Water Funding

New Senate Bill Offers Nothing New
Senator Robert C. Smith (R-NH), Ranking Member of the Senate Environment and Public Works (EPW) Committee, has introduced S. 2813, the Water Quality Investment Act of 2002. Smith was an original cosponsor of the Water Investment Act of 2002 (S. 1961), a bill which was marked up and passed by EPW by a vote of 13 to 6 on May 17. In introducing his bill, Smith said, “unfortunately, the bill that was reported out of Committee was a partisan proposal that added several provisions that will prevent the bill from moving forward.” Fellow Republican Committee members Senators James Inhofe (R-OK) and Michael Crapo (R-ID) are cosponsors of Smith’s bill.

There is little difference between S. 1961 and S. 2813 and, as currently written, they cannot be supported by the wastewater community. Both are $35 billion, five-year bills which amend the funding provisions of the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA), end federal funding after five years, and place new burdens on SRF applicants. The Smith bill closely tracks S. 1961 as it was originally introduced. S. 2813 does not contain S. 1961’s amended language that would require workers on SRF-funded projects to receive local prevailing wages under the Davis-Bacon law or the requirement that a municipality in “significant noncompliance” with the CWA must enter into “an enforceable administrative or judicial order” in order to become eligible to submit an application for a loan from the state revolving fund. The Smith bill still requires wastewater utilities to adhere to the capacity development provisions but instead of submitting actual copies of asset management plans and rate structures to States, utilities would have to certify that they have complied with the provisions.

The report that will accompany S. 1961 to the Senate floor was completed and filed by EPW committee staff on the same day that Smith introduced his bill. EPW majority staff then asked to meet with AMSA after receiving a letter sent to the full Senate by the Association, other municipal organizations, the National Governor’s Association, and state water and wastewater administrators. The meeting gave AMSA another opportunity to reiterate the industry’s serious concerns with the new mandates in S. 1961. Subsequent to that meeting, EPW staff from both sides of the aisle met to explore areas of possible compromise between S. 1961 and S. 2813. Since little support exists for either measure, and compromise on the differences in the two approaches to the funding formula to the states is doubtful, prospects for additional action in the Senate this year are unlikely.

S. 1961 and the accompanying written report No. 107-228 (with minority views), and S. 2813 can be found on AMSA's Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm. A copy of the letter to the Senate can be found at: http://www.amsa-cleanwater.org/private/legreg/outreach/071202letter.pdf.

House Floor Vote on H.R. 3930 Uncertain
A group of leading House Democrats in the U.S. House of Representatives, led by House Minority Leader Richard Gephardt (D-MO), sent a July 8 letter urging Majority Leader, Richard Armey (R-TX) and the Republican Majority to allow key legislation, including the Water Quality Financing Act of 2002 (H.R. 3930), to move to the floor despite a dispute over prevailing wage provisions (the Davis-Bacon Act). The letter states that H.R. 3930, which would authorize $20 billion over the next five years for the clean water state revolving fund (CWSRF), “would create hundreds of thousands of family wage jobs and make major improvements in our Nation’s quality of life.” The letter is at http://www.win-water.org/Armey-HSR07-08.pdf.

Transportation and Infrastructure (T&I) Committee Chairman Don Young (R-AK) and Ranking Member James Oberstar (D-MN), as well as Water Resources Subcommittee Chairman John J. Duncan, Jr. (R-TN) and Ranking Member Pete DeFazio (D-OR), continue to solicit cosponsors in support of the bill. Committee leaders want to file the bill in the House with a minimum of 80 cosponsors. AMSA member agencies are asked to contact their Representatives before Congress returns to Washington in early September to urge them to become cosponsors of H.R. 3930. To view a sample letter and to contact your Congressman, go to http://www.amsa-cleanwater.org/private/faxalerts/032602.cfm

Water and Wastewater Security

Wastewater Security Bill Ready for Floor
The Wastewater Treatment Works Security Act of 2002 (H.R. 5169), cosponsored by House T&I Committee Chair Don Young (R-AK), Ranking Member James Oberstar (D-MN), Water Resources Subcommittee Chair John J. Duncan (R-TN), and the Subcommittee’s Ranking Member Peter DeFazio (D-OR), was introduced and unanimously passed out of the T&I Committee in late July.

In report language filed with The Bioterrorism Preparedness Act of 2001 (H.R. 3448), Congressional conferees directed the House and Senate authorizing committees to quickly develop legislation to address security at publicly owned treatment works (POTWs). Earlier this summer, AMSA members and staff held a series of briefings for House and Senate staff. AMSA Wastewater Infrastructure Security Task Force (Task Force) Chair Jack Farnan, General Superintendent, Metropolitan Water Reclamation District of Greater Chicago, and AMSA President Paul Pinault, Executive Director, Narragansett Bay Commission, discussed the security needs of municipal wastewater treatment agencies and the associated costs to municipalities.

H.R. 5169 authorizes $200 million for POTWs to conduct vulnerability assessments and to pay for enhanced security at their facilities. An additional $15 million is authorized to provide technical assistance to small POTWs. The bill also authorizes $1 million for each of the fiscal years 2003 through 2007 to EPA for grants to a nonprofit organization for the improvement of vulnerability self-assessment methodologies and tools for POTWs. This could potentially help AMSA’s effort to upgrade its Vulnerability Self Assessment Tool (VSAT™) software over the coming years.

AMSA is working with Senate staff to introduce and pass comparable legislation in the Senate and continues to urge House members to bring H.R. 5169 to the floor for a vote, either as a separate bill or as part of the Homeland Security Department legislation that is currently being debated in Congress.  However, passage of authorizing legislation is only half of the equation. If security bills are enacted and signed by the President this year, appropriators will have to find the money in a tight budget to fund the new wastewater security program.

For more information, read AMSA Legislative Alert 02-06 in the Member Pipeline section of AMSA’s web site at: http://www.amsa-cleanwater.org/private/legreg/legalrts/la02-06.cfm.  A copy of H.R. 5169 is available for printing or downloading on AMSA’s Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm#9.

Chemical Security Bills Call for New Regulations
The Senate EPW Committee on July 25 approved the Chemical Security Act of 2002 (S. 1602). The bill would affect approximately 15,000 industrial plants that manufacture, store or use toxic chemicals and that are subject to Clean Air Act (CAA) 112(r) risk management planning requirements. Among other things, S. 1602 would require EPA and the Office of Homeland Security to develop regulations to determine high-priority facilities and guide the preparation of security vulnerability assessments and response plans. Affected facilities would have to take steps to substitute highly toxic substances with less hazardous ones and implement inherently safer technologies. A companion bill (H.R. 5300) was introduced in the House July 26 but has not been scheduled for hearings or markup. The bill, however, could move quickly if it is attached to Department of Homeland Security legislation. AMSA is currently trying to determine which member agencies have facilities covered by CAA 112(r). If you are covered by CAA 112(r), please contact Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org as soon as possible.

Budget and Appropriations

Senate Panel Boosts SRF Funding
The Senate Appropriations Committee has approved a fiscal year (FY) 2003 budget for the U.S. Environmental Protection Agency (EPA) as part of the VA-HUD & Independent Agencies appropriations bill (S. 2797). Lawmakers boosted funding for EPA’s overall budget by $680 million over the Bush administration’s request. The SRF accounts were increased by $100 million over current year spending and by $240 million over the Bush proposal. The panel approved $1.4 billion for the CWSRF and $875 million for the Drinking Water SRF (DWSRF). The Bush administration in February proposed only $1.212 billion for the CWSRF and $850 million for DWSRF as part of its message to lawmakers to cut back on ‘earmarks’ in the VA-HUD appropriations bill. Disregarding this request, Senators added $140 million to the budget for 150 special needs infrastructure grants.

Committee members supported the administration’s request of $20 million in FY 2003 to address drinking water system security needs. Senators also added $10 million to the President’s original request of $10 million for small system arsenic removal research and demonstration projects. For the second year in a row, the Committee did not include funding for the National Biosolids Partnership (see related story below). To review funding levels for EPA programs and the list of individual water and wastewater projects in the Committee Report (No. 107-222), go to AMSA’s Bill Tracker and click on S.2797.

On the other side of the Capitol, the House has been slow to move forward with fiscal 2003 spending measures. During the week of September 9, appropriators will resume activity on the President’s appropriations requests. The Subcommittee on VA-HUD & Independent Agencies has not scheduled a markup of their bill. The full House Appropriations Committee is expected to first address funding for other federal departments before taking up EPA’s FY 2003 appropriations request in the VA-HUD bill. With elections in November and only about 15 legislative days left this session, Members may be forced to return to Washington later this year for a lame-duck session to address outstanding appropriations bills.

No Funds for National Biosolids Partnership in Senate Bill
AMSA’s requested $1.5 million to fund the activities of the National Biosolids Partnership (NBP) for fiscal year (FY) 2003 has not been included in the Senate Appropriations Committee bill that will finance EPA programs in fiscal year 2003. The Senate Appropriations Subcommittee on VA-HUD & Independent Agencies did not include, for a second consecutive year, appropriations for the NBP. Earlier in the year, AMSA members were asked to write to their Senators to request that the NBP funding be included in EPA’s budget for FY 2003. There is still time to contact your Senators and express support for funding for the NBP before the bill is taken to the Senate floor for a vote.  A copy of the original memorandum to AMSA members can be found on the AMSA web site at http://www.amsa-cleanwater.org/private/leg_outreach.cfm. Members should then click on the March 27 correspondence “Selected AMSA Members asked to Contact Senate Appropriators on NBP Funding.” AMSA also has sent to House and Senate appropriators copies of the NBP resolution signed by members at the AMSA Winter Conference in February 2002. To view or download a copy of the resolution, go to: http://www.amsa-cleanwater.org/private/legreg/outreach/02-06-02nbpletter.pdf on AMSA’s web site.

Since the House has not yet marked up their version of the VA-HUD bill, AMSA continues to urge appropriations staff to include continued funding for the NBP in EPA’s budget for next year.

Clean Water Act Bills to Amend Definitions
On Wednesday July 24, bills were introduced in the Senate and House to amend the definition of what constitutes “waters of the United States” for purposes of jurisdiction under the CWA. The bills, S. 2780 and H.R. 5194, were introduced in response to the U.S. Supreme Court’s January 2001 decision in Solid Waste Agency of Northern Cook County (SWANCC) vs U.S. Army Corps of Engineers (USACOE). By a 5 to 4 majority, the court limited the authority of Federal agencies to use the co-called migratory bird rule as the basis for asserting CWA jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other waterbodies.

The decision means that the EPA and USACOE can no longer enforce the CWA mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds. According to Senator Russ Feingold (D-WI), sponsor of S. 2780, the proposed legislation does three things. First, it adopts a statutory definition of “waters of the U.S.” based on a longstanding definition of waters in the USACOE regulations. Second, it deletes the term “navigable” from the Act to clarify that Congress’ primary concern in 1971 was to protect the nation’s waters from pollution, not just to sustain navigability. Finally, the bill includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over water and wetlands, including those that are called isolated, on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause and the Necessary and Proper Clause.

AMSA will track the progress of the bills to determine if they have the potential to extend federal CWA regulatory jurisdiction to waters not presently interpreted as being within the federal government’s authority, such as cooling water and treatment ponds. Action on the legislation has not been scheduled. Copies of the House (H.R. 5194) and Senate (S. 2780) versions of the Clean Water Authority Restoration Act of 2002 can be found on AMSA’s Bill Tracker.

Bill Echoes U.S. PIRG Report Misinformation
Legislation introduced in July by Rep. Frank Pallone (D-NJ) mirrors exactly the findings of an August report by the U.S. PIRG. The Clean Water Enforcement and Compliance Improvement Act of 2002 (H.R.5079) amends the enforcement provisions of the CWA; revises State pollutant discharge permit program requirements concerning program approval, inspection, monitoring, introduction of pollutants into POTWs, poor compliance histories, submission of pollution prevention plans, and reporting; restricts the duration of permits that modify effluent limitations for toxic pollutants to two years and requires a hearing concerning owner-operator control and reasonable progress; authorizes citizen suits for past violations of effluent standards or limitations if there is evidence of repeated violations; and includes new protections for whistleblowers.  Although the legislation is not expected to get a public hearing in the House T&I Committee, AMSA will track its progress, as it is likely that the activist community will press Pallone to reintroduce the measure next year.

In responding to PIRG in an August 14 letter, AMSA admonished the organization for misleading the public with false findings in Permit to Pollute: How the Government's Lax Enforcement of the Clean Water Act Is Poisoning our Waters. The report mischaracterizes POTWs as polluters of the environment and takes great liberties with its definitions of "violations" that qualify as "significant" noncompliance, including minor paperwork and administrative matters. AMSA strongly urged PIRG, whose mission it is to defend the public interest, to do so by dealing fairly with the nation's public servants who protect their community's environment and public health. A copy of the letter to PIRG can be found on AMSA’s website in the Member Pipeline section at: http://www.amsa-cleanwater.org/private/faxalerts/08-16-02b.pdf.