AMSA Legislative Update October 2002

This edition of AMSA’s Legislative Update, current through October 31, 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

AMSA Testifies at CWA 30th Anniversary Hearing
AMSA President Paul Pinault gave credit to wastewater treatment officials for cleaning up thousands of the nation’s waterways and called for more federal infrastructure funding in testimony delivered at a Senate Environment and Public Works (EPW) Committee hearing commemorating the 30th anniversary of the passage of the Clean Water Act (CWA). Retired Senators Robert Stafford (VT) and George Mitchell (ME) opened the session by urging the Senate to strive for bipartisanship and pass legislation that would increase federal funding for wastewater treatment projects. Both Senators cited the growing infrastructure funding gap that was recently confirmed in the U.S. Environmental Protection Agency’s (EPA’s) report, The Clean Water and Drinking Water Infrastructure Gap Analysis (the “Gap Analysis”).

G. Tracy Mehan, III, EPA Assistant Administrator for Water, in acknowledging the gap, said the administration hopes to be able to address the financial shortfall through the use of innovative technologies, public-private partnerships, water quality trading and improved asset management programs. Mehan confirmed the administration’s continued opposition to increased federal funding for EPA’s clean water infrastructure programs.

Pinault, who is Director of the Narragansett Bay Commission in Providence, RI, spoke briefly about the goals of AMSA’s Infrastructure Funding Task Force and promised to share the findings of the Task Force with EPW Committee members next year. To read the testimony of AMSA and the other witnesses, go to: http://www.senate.gov/~epw/stm1_107.htm#10-08-02.

To find out more about EPA’s Gap Analysis, read AMSA’s September 30 Special Edition FaxAlert at http://www.amsa-cleanwater.org/private/faxalerts/093002.cfm. The Gap Analysis and accompanying Fact Sheet are available at: http://www.epa.gov/owm/featinfo.htm.

Coming Soon: Sine Die for Congress and Senate Bill
Despite early efforts this fall to move the Water Investment Act of 2002 (S. 1961) onto the Senate calendar by EPW Committee Chair James Jeffords (I-VT) and the democratic majority, lack of support for the bill stalled the measure. At least 11 Senators placed holds on S. 1961 to prevent it from moving forward. The $41.5 billion, five-year bill would have amended the funding provisions of the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA), ended federal funding after five years, and placed extensive new administrative burdens on loan applicants. As amended, S. 1961 also required that a municipality in “significant noncompliance” with the CWA 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 (SRF). The two biggest issues preventing passage of the bill this fall were the allocation formula that determines the amount of funds each state receives and the requirement that workers on SRF-funded projects receive local prevailing wages under the Davis-Bacon law. Senator George Voinovich (R-OH) placed a hold on the bill in response to issues outlined in a July 2002 letter to the Senate signed jointly by AMSA and other municipal organizations, the National Governor’s Association, and state water and wastewater administrators.

At AMSA’s Fall Leadership Retreat & Strategy Session this October in Washington, DC, Jeffords’ staff told AMSA members that they plan to again address wastewater and water infrastructure funding issues next year. Work on a new legislative package for the Senate EPW Committee is expected to begin after the November elections. If Jeffords retains his chairmanship of the committee, new funding bills in the 108th Congress are likely to resemble or be identical to S. 1961.

S. 1961 and the accompanying written report No. 107-228 (with minority views) 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.

Future Direction of EPW to be Decided in November 5 Elections
When Republican Senator Robert C. Smith (R-NH), Ranking Member of the Senate EPW Committee, lost his September 10 primary battle to Rep. John Sununu (R-NH), he set the stage for Sen. James Inhofe (R-OK) to take over the top Republican spot on the panel, provided he wins his reelection bid next Tuesday. Although Sen. John Warner (R-VA) is second in seniority to Smith, he is unlikely to give up his status as ranking Republican on the Senate Armed Services Committee to assume the EPW post. Inhofe has drawn criticism from the League of Conservation Voters and the activist community, yet has strong support from the U.S. Chamber of Commerce for his positions on environmental and infrastructure issues. The deciding factor on the overall future of the EPW Committee, and its agenda for the 108th Congress, will be the outcome of the November 5 elections. With Democrats holding on to only a slim one-vote majority, control of the Senate could easily shift over to the Republican Party. Although the political parties will choose their leaders during the November 12 - 14 lame-duck session, committee assignments will not be made until after the beginning of the new Congress.

Time Runs Out for Floor Vote on H.R. 3930
With the number of co-sponsors stalled at 97 and time running out this year, chances are remote that the Water Quality Financing Act of 2002 (H.R. 3930) will be brought to the floor of the House for a final vote. AMSA member agencies that want to thank their Representatives for cosponsoring H.R. 3930 can view the list of cosponsors by going to the AMSA Bill Tracker and clicking on H.R. 3930.

In remarks to AMSA members at the Fall Leadership Retreat & Strategy Session, House Water Resources & Environment Subcommittee staff recounted the enormous amount of progress made on the infrastructure funding issue this year. Senior Majority Counsel Susan Bodine reminded AMSA members that major laws are never changed in one year and that the wastewater community should sustain its momentum on the issue to get a bill passed in the 108th Congress. Bodine also told members to seek broader support for the issue through grassroots with businesses and ratepayers around the country.

The AMSA Infrastructure Funding Task Force has mapped-out and soon will begin to implement a strategy aimed at increasing support nationwide for a new source of federal funding for wastewater capital projects. A grassroots campaign will be launched in January, model legislation will be drafted, and a comprehensive lobbying strategy to secure Congressional leadership support are among the projects being directed by the Task Force.

Water and Wastewater Security

House Passes Wastewater Security Bill
The House in early October by voice vote approved the Wastewater Treatment Works Security Act of 2002 (H.R. 5169), an AMSA-supported bill that would help wastewater treatment agencies defray the cost of new security measures. AMSA members and staff met repeatedly with staff of the Transportation and Infrastructure Committee to provide crucial information that aided the Committee in writing the bill. 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 for EPA to make grants to a nonprofit organization for the improvement of vulnerability self-assessment methodologies and tools for POTWs. This could potentially fund AMSA’s efforts to upgrade its Vulnerability Self Assessment Tool (VSAT™) software over the coming years.

After passage in the House, the bill was accepted by the Senate and referred to the EPW Committee. A week earlier, EPW Chairman Jeffords introduced his version of a wastewater security bill (see related article below). Passage of the authorizing legislation, however, is only half of the equation. If a security bill is enacted and signed by the President this year, the identification of a source of money to fund the new program likely will be deferred until next year. For more information, read AMSA’s 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.

Senate Security Bill includes Mandates
The Wastewater Treatment Works Security and Safety Act (S. 3037), introduced in early October by Senate EPW Committee Chairman Jeffords, authorizes $125 million for FY 2003 to perform vulnerability assessments, prepare emergency response plans and implement basic security enhancements; $2 million for fiscal years 2003 and 2004 to address immediate and urgent security needs as determined by the EPA Administrator; $15 million for FY 2003 for treatment works that serve a population of under 10,000 people; and $15 million annually for fiscal years 2003-2007 for EPA research on the vulnerabilities of wastewater treatment works to intentional acts. The final authorization is for $500,000 for each of fiscal years 2003 through 2007 for non-profit organizations to improve vulnerability self-assessment tools for POTWs. This funding could help fund improvements to, and training on, AMSA's VSAT™ software tool.

Unlike the House bill, S. 3037 requires wastewater treatment agencies to submit vulnerability assessments and emergency response plans to EPA. The EPW Committee did not address the bill prior to leaving town for the November elections. Although House and Senate staff had indicated a willingness to work together to move a bill to the Senate floor, talks were delayed until after the general election. At issue is S. 3037’s mandate to submit the assessments and emergency response plans to EPA. If an agreement were reached, S. 3037 could be attached to another Senate bill that is independently heading to the floor for a vote. A copy of S. 3037 can be found on AMSA’s Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm#9.

Chemical Security Bill Goes Nowhere
Proposed legislation that 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 appears to be dead for this Congress. AMSA estimates that approximately 30 percent of member agencies would be subjected to the requirements of the bill. Although the Senate EPW Committee unanimously approved the Chemical Security Act of 2002 (S. 1602), committee Republicans vowed to keep the measure from becoming an amendment to homeland defense legislation. Republicans, and the White House, expect to see new legislation next year that takes a “more reasonable approach” to securing chemicals at various facilities. Activist groups, meantime, continue to urge the bill’s sponsor, Senator Jon Corzine (D-NJ), to push for passage of S. 1602 this year. 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 this summer, but was never taken up in committee. Copies of the bills can be found on the AMSA Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm#10. AMSA’s letter of opposition to S. 1602 can be accessed via the web site at http://www.amsa-cleanwater.org/private/legreg/outreach/09-10-02S1602ltr.pdf.

Budget and Appropriations

Stalled 2003 Appropriations Bills Await Lame-Duck Negotiations
On October 16, the House and Senate approved a fourth continuing resolution to keep the government operating at current funding levels until November 22. President Bush has signed into law the only two appropriations measures Congress has passed this session, the defense and military construction appropriations bills. Congress will return to Washington on November 12 to try to pass the 11 remaining FY 2003 appropriations bills, including next year’s EPA budget. Before lawmakers went home to the campaign trail, Senate Majority Leader Thomas Daschle (D-S.D.) said he intends to offer a unanimous consent request to pass outstanding spending bills during the November lame-duck session.

House Panel Approves EPA Spending Bill
The House Appropriations Committee passed in mid-October an $8.2 billion EPA budget for FY 2003 as part of the VA-HUD & Independent Agencies appropriations bill (H.R. 5605). The clean water state revolving fund (CWSRF) would get $1.3 billion, which is $150 million below the Senate Appropriations Committee’s approved spending level for the loan program (S. 2797). The bill includes new language that diverts $75 million from the CWSRF to States for interest-free loans to communities for projects that increase nonpoint and non-structural, decentralized alternatives. The drinking water state loan fund would receive $850 million under H.R 5605. The House Committee bill also includes a $1 million earmark to fund the National Biosolids Partnership (see related story below) program. To review funding levels for EPA programs and the list of individual water and wastewater projects in the Committee Report (No. 107-740), go to AMSA’s Bill Tracker and click on H.R. 5605.

The Senate Appropriations Committee approved S. 2797 in July. Senate 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 the 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. House Members added 356 projects totaling approximately $227.6 million to their bill.

In other budget areas, Senate appropriators supported the administration’s request of $20 million in FY 2003 to address drinking water system security needs. This language does not appear in the House bill. 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 Senate 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.

Funds for National Biosolids Partnership in Jeopardy
Although the House Appropriations Committee approved $1 million to fund the activities of the National Biosolids Partnership (NBP) for FY 2003, the funding request was not included in the Senate Appropriations Committee bill. The Senate Appropriations Committee did not include, for a second consecutive year, appropriations for the NBP. Selected AMSA members again are being asked to write to their Senators to request that the NBP funding be included in the final VA-HUD & Independent Agencies Appropriations bill for FY 2003.

A copy of the memorandum to selected 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 October 31 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 AMSA’s members at the 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.

Water Quality

Senate Approves Bill to Ban Mercury Thermometers
The Senate voted unanimously in September to pass S. 351, the “Mercury Reduction and Disposal Act of 2002.” The bill phases out mercury thermometers, directs EPA to establish a national mercury thermometer collection and exchange program, and creates a Federal task force to make recommendations regarding the long-term management of surplus mercury. AMSA had suggested to the bill’s sponsor, Senator Susan Collins (R-ME), that the purpose of the proposed task force be expanded beyond surplus mercury to include a national strategy to deal with all aspects of mercury pollution. While the bill was not amended to include the expanded task force, AMSA was recognized as a supporter of the legislation in a news release issued by the Senate EPW Committee announcing the bill’s passage out of committee. Although there is no companion legislation in the House, S. 351 was referred to the House Subcommittee on Environment and Hazardous Materials. Go to AMSA’s Bill Tracker to read a copy of S. 351.

Clean Water Act Bills to Amend Definitions
Bills introduced this past summer in the Senate and House to amend the definition of what constitutes “waters of the United States” for purposes of jurisdiction under the CWA were not taken up in committee this year. 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 considered isolated, on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause and the Necessary and Proper Clause.

While further action on the bills this session is improbable, they may be reintroduced next year in the 108th Congress. The bills 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. 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.

Bills Echo U.S. PIRG Report Misinformation
Legislation introduced in July by Rep. Frank Pallone (D-NJ), and expected to be introduced in November by Senator Jon Corzine (D-NJ), mirrors 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.

In responding to PIRG in an August 14 letter, AMSA admonished the organization for misleading the public with false findings in its report, Permit to Pollute: How the Government's Lax Enforcement of the Clean Water Act Is Poisoning our Waters. AMSA’s letter indicated that 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 web site in the Member Pipeline section at: http://www.amsa-cleanwater.org/private/faxalerts/08-16-02b.pdf.