NACWA June 2006 Legislative Update

This edition of the National Association of Clean Water Agencies (NACWA)’ Legislative Update, current through May 31, 2006, provides information on the activities of the 109th Congress of interest to the nation’s publicly owned treatment works (POTWs). For more detailed information regarding NACWA activities related to specific legislation, click on the web links in selected news items, or contact NACWA’s Lee Garrigan at 202/833-4655 or lgarrigan@nacwa.org.

NACWA advocates on behalf of its members before Congress. You can find individual bills through NACWA’s Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm), which 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 (http://www.nacwa.org/private/leg_index.cfm) in the Member Pipeline section of the NACWA website.

SECURITY

Wastewater Security Legislation Passes Senate Committee
The Senate Environment and Public Works (EPW) Committee approved May 23 the Wastewater Treatment Works Security Act of 2005 (S. 2781) by a vote of 10-8 along party lines. NACWA provided input into the drafting process and is supporting the bill, which was introduced May 10 by EPW Committee Chairman James M. Inhofe (R-OK), Sen. Lincoln Chafee (R-RI), Chair of the Fisheries, Wildlife, and Water Subcommittee, and EPW Committee member Sen. Lisa Murkowski (R-AK). The bill would authorize $200 million in grants to conduct vulnerability assessments and make security enhancements, $15 million for technical assistance for small POTWs, $5 million over five years to non-profit organizations to improve vulnerability self-assessment methodologies and tools, and $25 million over five years for research and review of collection systems and treatment works. It was the second time in three years that the Committee passed wastewater security legislation. The text of the bill can be found on the NACWA Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm).

Chairman Inhofe introduced S. 2781 to address the findings of a May 1 Government Accountability Office (GAO) report on wastewater treatment plant security entitled, Securing Wastewater Facilities: Utilities Have Made Important Upgrades, Though Further Improvements to Key System Components May Be Limited by Costs and Other Constraints (GAO-06-390) (http://www.gao.gov/new.items/d06390.pdf). The study reported that while no federal law requires wastewater facilities to conduct vulnerability assessments, most facilities have completed, have underway, or plan to complete some type of security assessment. Chairman Inhofe requested the study to assess the state of security at the nation’s clean water utilities and gather data on how they have assessed and addressed potential vulnerabilities since September 11, 2001.

During mark-up of the bill, the committee rejected an amendment by EPW Ranking Member James Jeffords (I-VT), which NACWA opposed, on a 10-8 party line vote that would have mandated that every wastewater treatment plant in America complete vulnerability assessments, site security plans, and emergency response plans, and submit them to the U.S. Environmental Protection Agency (EPA). The amendment was offered in the form of a bill, S. 1995 (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm), introduced in November 2005 by Sens. Jeffords, Barbara Boxer (D-CA), Frank Lautenberg (D-NJ) and Barack Obama (D-IL), and would have required high risk facilities to transition from toxic high risk chemicals such as chlorine to inherently safer alternatives. Senator Obama said he may put a ‘hold’ on the bill to prevent it from reaching the Senate floor for a vote until a hearing is scheduled to review the status of wastewater plant security. “We just don’t know enough about what local governments and municipalities are doing to move forward,” said Sen. Obama.

Chairman Inhofe reportedly stated after the markup that there is enough interest among EPW Committee members on specific wastewater security issues that he likely will hold “some type of hearing” in the coming months. The chairman called on all members of the EPW Committee to support his bill and pass it in the Senate. Similar legislation that passed the EPW Committee in 2003, the Wastewater Treatment Works Security Act of 2003 (S. 1039) (http://www.nacwa.org/private/leg_outreach03.cfm), was prevented from reaching the Senate floor for a vote due to a ‘hold’ by Sen. Jeffords. The EPW Committee now will write a report on the legislation which, when complete, will make the bill eligible for floor consideration. NACWA supported S. 2781 in a May 22 letter (http://www.nacwa.org/getfile.cfm?fn=2006-05-22Inhofe.pdf) to Chairman Inhofe and will continue to work with the EPW Committee to pass reasonable security legislation.

Chemical Security Bill Discussions Include NACWA Concerns
The Senate Homeland Security and Governmental Affairs (HSGA) Committee is hoping to mark up before the end of June the bipartisan Chemical Facility Anti-Terrorism Act (S.2145) (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm#2). NACWA sent a letter (http://www.nacwa.org/private/leg_outreach.cfm) in May to the leaders of the HSGA Committee — Chair Susan Collins (R-ME) and Ranking Member Joseph Lieberman (D-CT) — alerting them to the clean water community’s concerns with the legislation. The bill would provide broad new authority to the Department of Homeland Security (DHS) to establish risk-based criteria to determine which chemical facilities are vulnerable to terrorist attack and to establish security standards for those facilities. Chemical facilities would be required to conduct vulnerability assessments and create site security and emergency response plans based on their specific vulnerabilities, subject to approval by the Secretary of DHS. Facilities that fail to comply with the security standards would be subject to shut-downs, fines and penalties. NACWA sought comments from its members on the bill via Legislative Alert 06-02 (http://www.nacwa.org/private/legreg/legalrts/la06-2.cfm).

Currently, S.2145 would apply to POTWs covered under section 112(r) of the Clean Air Act — over 30% of NACWA members — subjecting them to extensive security planning and reporting requirements intended to address private sector chemical plant security. The Association’s letter points out that EPA, not DHS, should continue to retain authority over security programs for wastewater utilities. Also, wastewater security legislation has traditionally been under the jurisdiction of the Senate EPW Committee which passed May 23 a bill by Chairman James M. Inhofe (R-OK) to address wastewater system security issues (see related story). Given the direct application of the EPW legislation to POTWs, NACWA has urged Senators Collins and Lieberman to modify S. 2145 so that it removes clean water utilities from the definition of covered facilities. A nearly identical bi-partisan bill, H.R. 4999, introduced by Reps. Christopher Shays (R-CT) and James Langevin (D-RI), also could be addressed at a hearing in June in the House Homeland Security Committee. The Association will continue to work with the relevant committees in both chambers to address POTW concerns.

Senate Democrats Introduce Tougher Chemical Security Bill
The Senate delegations from New Jersey and Illinois have introduced a chemical security bill that is significantly more stringent than the bipartisan Collins-Lieberman Chemical Facility Anti-Terrorism Act of 2005 (S. 2145) (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm). Senators Frank Lautenberg (D-NJ) and Barack Obama (D-IL) are the authors and sponsors of the Chemical Security and Safety Act of 2006 (S. 2486) (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm). Cosponsoring the legislation are Senators Robert Menendez (D-NJ), Richard Durbin (D-IL), John F. Kerry (D-MA) and Joe Biden (D-DE). Upon introduction of the bill, Senator Obama pointed to chlorine as a dangerous industrial chemical that could compromise homeland security, making some NACWA facilities eligible to be covered under the new proposal. S. 2486 would require that every chemical facility in the country adopt inherently safer technologies (ISTs) and allow states to enact tougher chemical security standards than federal law allows. Last year, the State of New Jersey began to require that chemical facilities adopt ISTs if they can do so.

The Chairman of the Senate EPW Committee, James M. Inhofe (R-OK), immediately criticized the partisan bill saying it would impose unnecessary restrictions on chemical plants. The bill has little chance of being brought before the committee for discussion but will likely be used by the Senators to try to gain concessions during this year’s anticipated debate of the Collins-Lieberman bill in the Committee on Homeland Security and Governmental Affairs and on the Senate floor.

Senate Chlorine Conversion Bill Introduced
Senators Joseph Biden (D-DE) and James Jeffords (I-VT) have introduced the Community Water Treatment Hazards Reduction Act of 2006 (S. 2855) which would amend the Safe Drinking Water Act (SDWA) to eliminate the use of gaseous chlorine at both wastewater and drinking water facilities. The bill does not amend the Clean Water Act (CWA), but applies to ‘treatment works’ as defined in CWA Section 212. Under the bill, the Administrator of EPA in consultation with the Secretary of DHS would create a tiered list of community water systems and treatment works based on risk. Identified facilities would be required to report on the feasibility of utilizing safer technologies and the anticipated costs of switching to a different disinfectant. Then, according to Senator Biden, “if grant funding is available, the Administrator will issue a grant and order the facility to transition to the safer technology.” Once the transition is complete, the facility would be required to track all cost-savings related to the switch. If cost savings are identified, one half of the dollar amount would have to be returned to the EPA. There is no equivalent legislation in the House and no action is expected on the bill in the Senate EPW Committee.

CLEAN WATER FUNDING

NACWA Recruiting House Cosponsors for Clean Water Trust Fund Bill
Representative John J. Duncan (R-TN), Chairman of the House Water Resources & Environment Subcommittee and sponsor of H.R. 4560, sent a ‘Dear Colleague’ letter (http://www.nacwa.org/private/leg_outreach.cfm) in late May to all House members soliciting their support for the Clean Water Trust Act of 2005. NACWA also has delivered letters (http://www.nacwa.org/private/leg_outreach.cfm) to every Member of the House seeking support for and co-sponsorship of The Clean Water Trust Act of 2005. The letter outlines the pressing need for a federal trust fund and the ramifications in the coming years if the need is not met. Accompanying the letter is an overview of the bill as well as a list of supporting organizations. NACWA members have been instrumental in attracting the first nine cosponsors onto the bill. A list of cosponsors can be found with the bill text on the NACWA Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm).

NACWA member POTWs and affiliates are urged to contact their Representatives and utilize Legislative Alert 06-04 (http://www.nacwa.org/private/legreg/legalrts/la06-4.cfm), which provides instructions, a ‘Sample Letter’ and a fact sheet on H.R. 4560. The sample letter also can be accessed via NACWA’s Write Congress Now feature on the right hand side of the Association’s homepage (www.nacwa.org). NACWA encourages its members to ask their Representatives to support H.R. 4560 and to set up meetings with their Members of Congress in advance of the Independence Day congressional recess June 30 – July 9, 2006 when lawmakers will return home.

NACWA Bill Efforts Get Boost from Construction Coalition
NACWA staff met in May with the members of the Clean Water Construction Coalition (CWCC) in conjunction with their legislative fly-in. A luncheon meeting focused on H.R. 4560, the Clean Water Trust Act of 2005, and included remarks by House Transportation and Infrastructure Committee Chair, Don Young (R-AK), Subcommittee on Water Resources and Environment Chair John J. Duncan, Jr. (R-TN), and Subcommittee member Rep. Bill Pascrell (D-NJ). House Speaker Dennis Hastert (R-IL) was scheduled to attend but was unable to leave the House floor during a debate on the House Appropriations Interior and Environment bill.

CWCC members and NACWA staff also met with the staff of the Northeast-Midwest Institute (NEMWI), a non-partisan policy center with strong ties to Congress, which currently is led in the House by co-chairs Reps. Steven LaTourette (R-OH) and Marty Meehan (D-MA). Following another briefing from staff of the U.S. Conference of Mayors (USCoM) on the 2005 National City Water Survey, the CWCC indicated they will be working closely with the USCoM on H.R. 4560. The former co-chair of the USCoM Urban Water Council, Douglas Palmer, Mayor, Trenton, N.J., is now Chair of the USCoM Advisory Board and is widely expected to become President in the next few years. NACWA will continue to work with CWCC, NEMWI and the mayors to gain support for H.R. 4560.

FISCAL YEAR 2007 BUDGET

House Agrees to Cut Clean Water Loan Program
The House on May 18 passed the Department of the Interior, Environment, and Related Agencies Appropriations Act of 2007 (H.R. 5386) (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm#3), including a $200 million cut to the U.S. Environmental Protection Agency (EPA)’s clean water state revolving fund (CWSRF). The latest reduction to the CWSRF drops funding to $688 million and is part of a long-term plan to end all federal capitalization of the program in FY 2011. EPA Assistant Administrator for Water Benjamin Grumbles stated earlier this year that the White House’s $688 million request was on target to fund the CWSRF to revolve at $3.4 billion a year by 2011. The $200 million budget cut, if agreed to by the Senate when it takes up EPA’s FY 2007 funding measure, would reduce the nation’s primary infrastructure program for water quality projects from $886.8 million in the current fiscal year to $687.6 million. Federal funding for the CWSRF has been slashed nearly 50 percent from $1.35 billion in FY 2004. NACWA and other national, state and local groups continue to oppose the cuts.

NACWA, through the Clean Water Funding Task Force, is trying to elevate clean water financing as a political priority through the Clean Water America website (http://www.cleanwateramerica.org). The cyber campaign both educates ratepayers and advocates for a reliable, long-term sustainable source of federal financing through the establishment of a clean water trust fund. The Senate Appropriations Committee has not scheduled a markup of EPA’s FY 2007 budget in the Interior and Related Agencies Subcommittee. Senators are not expected to be able to shift more money into the CWSRF from other programs and agencies in the Interior appropriations bill.

NBP Funding Request Supported in FY 2007 House Bill
The House included in H.R. 5386, EPA’s FY 2007 appropriations bill (see previous story), $1 million to continue the National Biosolids Partnership (NBP) environmental management system for biosolids program. The bill also included $841.5 million for EPA’s DWSRF, $2 million for the Water ISAC, and $200 million for 146 targeted infrastructure grants that primarily fund individual water infrastructure projects in members’ districts. The bill eliminates a $1.182 million line item for wastewater operator training grants. When the Senate Appropriations Committee addresses its version of EPA’s FY 2007 budget, it is expected to retain the NBP funding and add additional earmarked projects.

ENVIRONMENTAL PROTECTION

NACWA Members Active on Good Samaritan Bill
EPA announced May 10 as part of their Cooperative Conservation effort, the Good Samaritan Clean Watershed Act, new legislation to encourage voluntary actions to accelerate the restoration of watersheds affected by acid mine runoff from abandoned hardrock mines. Environment and Public Works (EPW) Committee Chairman James M. Inhofe (R-OK) introduced the bill as S. 2780 in the Senate and Water Resources and Environment Subcommittee Chairman John J. Duncan, Jr. (R-TN) offered an identical measure, H.R. 5404, in the House. The bills can be accessed on NACWA’s Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm). The bills establish a streamlined permit program that would be administered at the federal level by EPA, and which can be administered by States or Tribes if certain conditions are met. A permit issued under the legislation would allow a Good Samaritan to clean up an inactive or abandoned mine site and would shield the permittee from CWA or CERCLA liability for the actions taken under the permit. A Good Samaritan is a person or organization that is not responsible for the contamination or cleanup that voluntarily cleans up a mining site.
As drafted, the bill is a freestanding piece of legislation and does not specifically amend any existing federal environmental statute. The bill contains specific requirements regarding who is eligible for a Good Samaritan permit, the sites for which permits may be issued, and what must be included in the permit.

NACWA Board Member, Dave Williams, Director of Wastewater at East Bay Municipal Utility District (EBMUD) in Oakland, CA, participated in a March 30, 2006, hearing on abandoned mine issues (http://www.house.gov/transportation/water/03-30-06/03-30-06memo.html) in the House Committee on Transportation and Infrastructure Subcommittee on Water Resources and the Environment. Williams presented a case study that outlined the numerous problems EBMUD faced as a result of a mitigation project at the Penn Mine in the northern California foothills of the Sierra Nevada Mountains. Williams testified that the passage of Good Samaritan legislation would be a significant step forward in helping states clean up impaired waters, stating that legislation should eliminate current disincentives to voluntary cooperative efforts aimed at reducing water quality impacts from abandoned or inactive mines. Nationally, there are over 500,000 abandoned hardrock mines, mostly in the West and many on private land, that represent a significant source of pollutants that continue to negatively impact water quality throughout the effected States.

This month in the Senate, EPW Committee Chairman Inhofe has tentatively scheduled a June 14 hearing on S. 2780. NACWA is working with Committee staff to identify a member utility to testify on the bill.

House Agriculture Committee Launches Web-Based Farm Bill Feedback Form
House Agriculture Committee Chairman Bob Goodlatte (R-VA) announced in May the launch of a web-based feedback form on the House Committee on Agriculture website for stakeholders to provide input on farm policy in advance of next year’s reauthorization of the 2002 Farm Bill. The form can be accessed at http://www.agriculture.house.gov and then clicking on the Farm Bill Feedback icon. The committee has been conducting hearings throughout the country that have featured testimony by farmers and ranchers. Very few of the witnesses have focused their testimony on the conservation programs in the farm bill which directly impact local water quality.

NACWA is preparing an options paper on the farm bill’s conservation programs to generate discussion and receive input from Association members on how those programs might be changed in the upcoming legislation to the benefit of local wastewater treatment providers. The NACWA Legislative Policy Committee will discuss the paper at their next meeting, July 20, to be held in conjunction with NACWA’s 2006 Summer Conference and 36th Annual Meeting at the Westin Seattle in Seattle, Washington from July 18–21.