AMSA Legislative Update September 2004

This edition of the Association of Metropolitan Sewerage Agencies’ (AMSA) Legislative Update, current through September 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

Congress passed a continuing resolution (CR) September 29 to keep federal government agencies operating after the 2004 fiscal year ended at midnight on September 30. Only one of the 13 appropriations bills that fund federal departments and independent agencies has been signed into law for fiscal year 2005. The CR funds the agencies, including the U.S. Environmental Protection Agency (EPA), at current spending levels through November 20. Congress must then return to Washington for a lame duck session to either pass the remaining appropriations bills or extend the continuing resolution until next year. Lawmakers are expected to adjourn October 8 to prepare for the November elections.

Senate Backs Higher SRF Funding in EPA Budget
The Senate Appropriations Committee unanimously approved the Subcommittee on Veterans Affairs, Housing and Urban Development (VA-HUD) and Independent Agencies’ appropriations package, S. 2825 (http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm), in late September. The fiscal year (FY) 2005 bill holds level at $1.35 billion the funding for the Clean Water State Revolving Fund (CWSRF), and is considerably higher than the $850 million approved by the House Appropriations Committee in the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 2005 (HR5041). AMSA and a broad coalition of state and local governments, construction, environmental and public health groups helped spur the Senate Committee’s action through meetings with congressional staff and letter writing campaigns.

In a September 17 FaxAlert (http://www.amsa-cleanwater.org/private/faxalerts/091704se.cfm), AMSA requested its members to send letters to their Representatives and Senators urging them to support the $1.35 billion appropriation level in the Senate VA-HUD & Independent Agencies appropriations bill for the CWSRF. AMSA members are urged to contact their Members of Congress by downloading a sample letter that can be personalized and emailed or faxed to their Senators or Representatives from Write Congress Now, which is located on the home page of AMSA’s website (www.amsa-cleanwater.org).

AMSA Urges House Members to Reverse 37% Cut to Clean Water SRF
The House Appropriations Committee this summer 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 fund the SRF at $850 million. Congress has consistently rejected the Presidents’ requests and provided an annual appropriation of $1.35 billion for the CWSRF since 1998. The Committee’s FY 2005 proposed budget represents a cut of 37% to the CWSRF that could result in decreased water quality, lost jobs and delayed investment in much-needed wastewater infrastructure at the nation’s utilities.

Following the subcommittee markup, a coalition of stakeholder organizations, including AMSA, prepared and released a report entitled, All Dried Up: How Clean Water Is Threatened by Budget Cuts (www.amsa-cleanwater.org/pubs/2004-09-15ADU.pdf), which was disseminated to Members of Congress and provides a state-by-state analysis of the economic, and job-related impacts of the proposed cuts to the CWSRF program.

Lawmakers will have to negotiate the difference between the funding levels in the House and Senate VA-HUD appropriations bills. However, that process is likely to be disrupted as Congress turns its attention to other matters before returning home in early October. The bills have not been scheduled for floor action and could ultimately be included in an omnibus package to be considered early next year. AMSA will continue to urge lawmakers to support the $1.35 billion funding level for the CWSRF.

AMSA Wins Funding for National Biosolids Partnership in House Bill
The House Subcommittee on VA-HUD & Independent Agencies and the full House Appropriations Committee included in EPA’s 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, as it has done in previous years, did not include the NBP line-item in its version of the VA-HUD spending bill. AMSA asked select members this summer 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.

CSO Policy Clarified in House Committee Budget Bill
AMSA was successful in its request to appropriators to include language in the House VA-HUD and Independent Agencies funding bill, H.R. 5041(http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm) 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 FY 2005 EPA appropriations language provides the first-ever legislative history on the intended effect of "shall conform to" in CWA § 402(q). 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 was not included in S. 2825, the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 2005 (http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm). If lawmakers have an opportunity to vote on the bills on the House and Senate floors, and the two measures go to conference, AMSA will encourage Senate conferees to accept the House language in a final bill.

Clean Water Act

AMSA Testifies Before House Subcommittee on Clean Water Act Enforcement
Christopher M. Westhoff, AMSA Secretary and Assistant City Attorney, Public Works General Counsel for the City of Los Angeles, Calif., presented testimony (www.amsa-cleanwater.org/advocacy/) September 30 at a House Subcommittee on Water Resources and Environment hearing on governmental regulatory action and citizen enforcement of the Clean Water Act (CWA). The hearing stems from a series of third party lawsuits filed against clean water facilities whose claims had previously been addressed by federal regulators. These extraneous lawsuits go beyond what Congress envisioned when drafting the CWA – using governmental enforcement as the primary means in addressing permit discharge violations and citizen enforcement as a supplementary role only to be used when the federal regulators failed to prosecute permit holders for a violation.

Westhoff told the Subcommittee that where a regulator is not enforcing the CWA, citizen suits are an important secondary source of enforcement. Westhoff cited the financial problems in Los Angeles stemming from third party lawsuits, which have cost the city millions of dollars, and he told the Subcommittee that “where Congress’ intended prime CWA enforcer has done or is doing its job, municipalities need protection from redundant third party lawsuits that will raise the cost of clean water services.” The Association offered to work with the Subcommittee to discuss ways to focus future third party lawsuits against municipalities as Congress intended – in instances where there is a CWA enforcement gap. To view all of the information from the hearing, go to http://www.house.gov/transportation/, click on the Water Resources & Environment Subcommittee then on Hearings/Testimony.

Floor Action on Sewer Overflow Reauthorization Bills Uncertain
The Water Infrastructure Financing Act, S. 2550 (http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm) was approved by the Senate Environment and Public Works (EPW) Committee in mid-June. The bill 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. During Committee markup of the bill, an amendment was approved 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 in any year 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).

In the House, the extension of the authorization for the sewer overflow control grant program was approved as a separate bill by the House Transportation and Infrastructure (T & I) Committee in late July following a hearing earlier that month. 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 (http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm).

As originally introduced, the bill would have extended by two years the $1.5 billion authorization for the sewer overflow grant program that was signed into law in 2001. During the T & I Committee mark-up, lawmakers amended the bill to provide $250 million per year from fiscal year 2005 to fiscal year 2009 to help municipalities pay for construction projects to reduce sewer overflows. The original authorization for appropriations for the grants from the EPA to municipalities expired in 2003 and was never funded. Although time is running out for T & I Committee Chairman Don Young (R-AK) to take the bill to the House floor for a vote before Congress adjourns in early October, AMSA will continue to urge the House leadership to pass the bill this year.

Bush Nominates New Enforcement Administrator
The former administrator for the U.S. Environmental Protection Agency’s (EPA) Region V office has been nominated by President Bush to serve as the assistant administrator of EPA’s Office of Enforcement and Compliance Assurance. Thomas Skinner was tapped in April to serve as the acting administrator following the departure of John Peter Suarez. Skinner served as director of the Illinois Environmental Protection Agency from 1999 to 2001. Prior to his federal service, he was a partner in the environmental law section of the Chicago office of Winston & Strawn. Skinner’s nomination must be approved by the Senate before he can be sworn into office.