AMSA July 2004 Legislative Update

This edition of the Association of Metropolitan Sewerage Agencies’ (AMSA) Legislative Update, current through July 30, 2004, provides an overview of bills and initiatives of interest to the nation’s publicly owned treatment works (POTWs) in the 108th Congress. 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 website to congressional websites 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” website. To renew or bookmark the Bill Tracker, go to http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm.

Appropriations

House Committee Slashes Federal Clean Water Loan Program
The House Appropriations Committee July 22 cut federal funding for the U.S. Environmental Protection Agency’s (EPA) clean water state revolving loan fund (CWSRF) program for fiscal year (FY) 2005 from its current level of $1.35 billion to $850 million. For the past seven years, both former President Bill Clinton and President George W. Bush have asked Congress to cut the SRF to $850 million. Congress has refused the Presidents’ requests and has provided an annual appropriation of $1.35 billion for the CWSRF since 1998.

The House Appropriations Committee followed the lead of the Subcommittee on VA-HUD & Independent Agencies which approved July 20 a budget for EPA of $7.72 billion, $36 million less than requested by the Bush administration. Following the subcommittee markup, AMSA called for the restoration of the funding cut in a July 21 coalition letter signed by a diverse group of stakeholders. The letter was hand delivered to House Appropriation Committee members prior to the July 22 markup. (http://www.amsa-cleanwater.org/private/leg_index.cfm). The drinking water SRF would receive $845 million under the approved budget.

A floor vote in the House is anticipated in September when lawmakers return from their summer recess. The VA-HUD bill is likely to be bundled with 12 other spending bills into a massive omnibus bill for passage before Congress adjourns in October.

The Senate, meantime, was forced to postpone subcommittee markups of spending measures prior to the July 23rd adjournment due to political maneuvering between parties and now lags far behind the House in passage of its appropriations bills this year. AMSA will work with other stakeholder groups to urge Senate appropriators to restore the funding cuts to the CWSRF when they mark up their version of the VA-HUD & Independent Agencies spending bill in September.

AMSA Wins Funding for National Biosolids Partnership
The House Subcommittee on VA-HUD & Independent Agencies and the full House Appropriations Committee included in EPA’s fiscal year (FY) 2005 budget nearly $1 million to fund the activities of the National Biosolids Partnership (NBP). All programs in the VA-HUD appropriations bill were cut by two percent, giving the NBP $980,000 to support its activities next year. Money was tight in the VA-HUD bill due to needed increases in veterans’ health benefits. AMSA met in July with staff of individual Representatives as well as staff of the VA-HUD Subcommittee to make an urgent appeal for the NBP funding.

The Senate has yet to act on its version of the VA-HUD spending bill. AMSA asked select members in late June to contact their Senators and urge their support for the program. This action followed visits to the Subcommittee offices by AMSA staff and was in addition to the letter of support clean water agencies signed in February 2004 during the AMSA Winter Conference. In March, AMSA requested that member agencies with Senators and Representatives on the Appropriations Committees write letters requesting that $1 million be included in the EPA’s budget for FY 2005 (http://www.amsa-cleanwater.org/private/leg_outreach.cfm).

CSO Policy Clarified in EPA Budget Bill
AMSA was successful in its request to appropriators to include language in the House VA-HUD and Independent Agencies funding bill to clarify section 402(q) of the Clean Water Act (CWA), which requires that permits, orders and decrees “shall conform to” the 1994 CSO policy. EPA’s 1994 Combined Sewer Overflow (CSO) Policy (Policy) directs CSO communities to develop and implement long-term control plans (LTCPs) to retrofit their sewer systems over a period of years. The Policy states that LTCP obligations are to be imposed via an “enforceable mechanism,” endorses CWA permits as the primary vehicle for imposing LTCP obligations, and places delegated state permitting authorities in the lead for implementation. The Policy notes that in some cases, a state or federal enforcement order may be a more appropriate vehicle to impose LTCP obligations than a permit. In 2001, Congress added § 402(q) to the CWA, noting that permits, decrees, and orders "shall conform" to the CSO Policy but no legislative history accompanied the provision.

Over the years, EPA enforcement officials have aggressively sought to place most CSO communities under federal consent decree and have sought to impose federal decrees in cases where state enforcement orders already exist. Contrary to the CSO Policy’s intent, the use of NPDES permits has become a diminished option for most CSO communities.

The FY 2005 EPA appropriations language provides the first ever legislative history on the intended effect of "shall conform to" in CWA § 402(q). This appropriations language emphasizes: 1) the importance of flexible and site-specific approaches to CSO control as set out in the CSO Policy, 2) that NPDES permits are appropriate implementation mechanisms for CSO requirements, and (3) Congressional confidence in the states taking the primary lead in enforcement situations. This language should be helpful to CSO communities across the nation seeking permits, and seeking the proper balance between state and federal roles overseeing their CSO remediation efforts.

The language will now face a vote on the House floor in the full VA-HUD appropriations bill and will have to gain Senate approval in order to become law. As the appropriations process goes forward in the Senate, AMSA may call upon its membership, as needed, to show their support for this language.

Clean Water Funding

AMSA Member Testifies on Sewer Overflow Grant Bill
AMSA 2003 – 2004 Past President Paul Pinault, Executive Director of the Narragansett Bay Commission in Providence, Rhode Island, testified on behalf of AMSA at a July 8 hearing before the House Water Resources and Environment Subcommittee on H.R. 784, the Water Quality Investment Act of 2003. Other than the bill’s primary sponsor, Rep. Dave Camp (R-MI), AMSA was the only witness to testify. As originally introduced, the bill would extend by two years the $1.5 billion authorization for the sewer overflow grant program that was signed into law in 2001. The original authorization for appropriations for the grants from the EPA to municipalities expired in 2003 and was never funded. H.R. 784 can be found on the Bill Tracker on AMSA’s website (http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm).

Pinault told committee members that AMSA supported the bill but recommended that it be changed to reauthorize the program for six years, thus increasing the chances that the grant program would receive funding in future years. The full Transportation and Infrastructure (T & I) Committee agreed with AMSA’s suggestion during a July 21 markup and passed an amended version of the bill. The legislation would now provide $250 million per year from fiscal year 2005 to fiscal 2010 to help municipalities pay for construction projects that would reduce sewer overflows. The Senate included a similar provision to extend the overflow grants program in a water infrastructure bill passed last month in the Senate Environment and Public Works Committee (see related story).

Pinault cautioned committee members that the enormity of the costs associated with correcting the sewer overflow problem are only part of the larger spending needs of wastewater treatment utilities. He called for the creation of a trust fund to provide communities with a more dependable funding stream to assist them in reaching national water quality goals. AMSA, under the direction of its Clean Water Funding Task Force, is drafting trust fund legislation for introduction in the 109th Congress early next year.

The future of H.R. 784 is uncertain at this time. It is unclear whether T & I Committee Chairman Don Young (R-AK) will take the bill to the House floor for a vote before Congress adjourns in October.

Senate Committee Approves SRF Reauthorization Bill
The Senate Environment and Public Works (EPW) Committee approved S. 2550, the Water Infrastructure Financing Act, on June 23, just two days after the bill was introduced in the Senate. The vote was nearly unanimous with only the Ranking Member on the Committee (Vermont Independent Jim Jeffords) voting against the bill. A Managers’ amendment to the bill was accepted by voice vote and served as the markup vehicle. It includes a revised SRF funding formula that reportedly favors small states and keeps funding flat for large states. S. 2550 would reauthorize the clean water and drinking water state revolving loan fund programs (SRFs) for five years, providing $20 billion for wastewater and $15 billion for drinking water.

A week prior to the introduction of the bill, AMSA met with Senate staff to receive a draft of the bill which was then sent to AMSA members for their review and comment. Five utilities submitted comments on the proposed legislation. The comments generally identified concerns with the bill’s provisions on asset management and financial capacity building but were supportive of the research and development title. During the June 23 Committee markup of the bill, Senator George Voinovich (R-OH) won approval of his amendment to reauthorize the sewer overflow control grant program through fiscal year 2009 at $250 million per year. Under the program, if at least $1 billion is appropriated for the clean water SRF program, the U.S. Environmental Protection Agency (EPA) Administrator is authorized to provide grants to states or directly to municipalities for the planning, design, and construction of treatment works to control or treat combined sewer overflows (CSOs) or sanitary sewer overflows (SSOs). Priority consideration would be given to financially distressed communities or those that are in the midst of implementing long-term CSO or separate SSO plans. The federal share would be at least 55 percent.

Also approved was an amendment that would make Davis-Bacon prevailing wages applicable on all projects receiving federal funds under the SRFs. The Committee is now writing a report that will clarify various provisions in the bill and which will be filed with the bill prior to a vote on the Senate floor. The bill’s sponsors, Senators James Inhofe (R-OK), Mike Crapo (R-ID) and Lisa Murkowski (R-AK) have not yet determined whether they will try to take the bill to the floor for a vote where they could face opposition to the prevailing wage provision by fiscal conservatives.

Water Quality

Stormwater Amendment Still Pending in Highway Conference
Members of the House and Senate transportation conference committee were unable to resolve differences between their respective highway bills before leaving Washington for their annual summer break. AMSA has been engaged in the Senate-passed Safe, Affordable, Flexible and Efficient Transportation Equity Act of 2003 (SAFETEA) (S. 1072) that contains the utility-supported amendment to set-aside 2 percent – approximately $958 million over six years – for states to mitigate stormwater runoff from highways. The amendment to the Senate’s $318 billion highway construction and repair package received bipartisan support and would provide funds for projects such as stormwater retrofits, the recharge of groundwater, natural filters, stream restoration, minimization of stream bank erosion, and innovative technologies.

The House-passed legislation, a six-year, $284 billion highway and transit funding bill (H.R. 3550), does not contain the set-aside. AMSA staff and other stakeholder groups met with congressional staff in July to push for the funding. However, House members are showing a reluctance to support a diversion of the highway money for environmental purposes. AMSA joined 37 other stakeholder organizations on a June 14 letter to transportation conferees urging their support for the stormwater provision (http://www.amsa-cleanwater.org/advocacy/co/2004-06-14swtr.pdf). AMSA also sent several letters to EPW Senators urging their support for the amendment (http://www.amsa-cleanwater.org/advocacy/releases/2003-11-11-03cornyn.pdf). AMSA continues to advocate for inclusion of the amendment in a final highway bill. AMSA members can show their support for the measure by contacting their Congressional delegations by visiting AMSA’s homepage (http://www.amsa-cleanwater.org) and clicking on ‘Write Congress Now.’

Prior to leaving town June 23, the House and Senate both passed an extension of the existing highway bill, TEA 21, in order to provide continued funding for highway programs until September 24. This was the fifth extension that Congress has passed while conferees continue to try to work out their differences. If an agreement cannot be reached by the end of September, Congress could postpone action on the bill until next year and extend the program once again into 2005.