Clean Water Act: Progress has been made, but more work to be done

Julia Anastasio, Esq.
Senior Manager of Government Affairs
American Public Works Association
Washington, D.C.

2007 marked the 35th anniversary of the Clean Water Act (CWA). Since 1972, tremendous progress has been made, and today, our rivers, lakes and streams are far cleaner than they were three decades ago. The act has leveraged billions of dollars for state and local governments to improve water quality and address water infrastructure needs and the CWA has been one of our most successful environmental statutes to date. But there is still more work to be done. Forty percent of the nation's tested waters currently fail to meet quality standards. Congress and the federal agencies responsible for water resources have spent the past year working on solving these remaining problems and the APWA Water Resources Management Committee has been actively engaged in ensuring that the interests of public works professionals are considered and addressed.

If you are interested in more information on any of these topics, please contact Julia Anastasio at janastasio@apwa.net.

Legislative Highlights

H.R. 720: Water Quality Financing Act of 2007
The Water Quality Financing Act of 2007 authorizes $14 billion over four years to the clean water state revolving fund and reauthorizes the federal commitment to clean water infrastructure and begins to address the estimated $350 to $500 billion funding gap between current expenditures and identified needs. The legislation also includes a provision requiring the Government Accountability Office to undertake a study of potential funding mechanisms to support such a trust fund. H.R. 720 was passed by the U.S. House of Representatives in March on a 303-108 vote. The Senate Environment & Public Works Committee held a hearing to address the need for more federal clean water funding. Senators at the hearing promised swift action on the SRF authorization bill. Senate action is expected early in 2008. APWA submitted letters of support on each of these bills and has continued to work with the Water Infrastructure Network in advocating for a sustainable long-term funding solution to the current water and wastewater infrastructure crisis.

H.R. 700, S. 836: Water Quality Investment Act of 2007
The Water Quality Investment Act of 2007 will provide $1.8 billion in grants to local communities for sewer overflow control projects. The House passed its version of this bill in March 2007.

H. Res. 725: Recognizing the 35th Anniversary of the Clean Water Act
This bipartisan resolution calls for a "sustainable long-term solution to address the Nation's decaying water infrastructure." The resolution acknowledges the multi-billion-dollar water infrastructure funding gap and supports the creation of a federal clean water trust fund.

H.R. 1747: Safe Drinking Water for Healthy Communities Act of 2007
This piece of legislation would require EPA to propose a standard for perchlorate within 18 months of enactment and finalized within 30 months. The House Energy & Commerce Committee passed this bill but movement to the floor for a vote by the full House is not expected in the near future.

H.R. 2452, S. 2080: Raw Sewage Overflow Right to Know Act of 2007
The Raw Sewage Overflow Right to Know Act of 2007 would require wastewater utilities to develop monitoring systems to detect any overflows and also require utilities to report overflows to the public within 24 hours. Additionally, the bills contain reporting requirements for overflows to local public health authorities, state regulators, and the EPA. APWA submitted comments on the legislation that recognized the importance of public notification but there is a concern that the bills as currently drafted do not adequately take into account existing reporting requirements and technological requirements.

H.R. 1495, S. 1248: Water Resources Development Act of 2007
The Water Resources Development Act of 2007 authorizes more than $23 billion for U.S. Army Corps of Engineers to complete more than 900 projects related to flood control, navigation, water supply, environmental restoration and infrastructure projects. WRDA also includes more than 100 projects totaling $794 million earmarked for wastewater and drinking water projects and significant funding for projects related to hurricane damage along the Gulf Coast. The Act also includes new independent review requirements for projects more than $45 million and outlines the process for deauthorizing unbuilt projects which are obsolete or no longer necessary. President Bush vetoed WRDA because he claimed that the legislation contained unnecessary projects and was unnecessarily expensive. The Senate overrode the President's veto by a vote of 74 to 14 and two days later the House did the same in a 361-54 vote. Legislative leaders in both houses of Congress have pledged to take up WRDA in 2008 in an effort to get the reauthorization process back on a two-year reauthorization schedule. APWA members were actively engaged in advocating for WRDA by sending letters and making phone calls to their congressional representatives discussing the importance of this piece of legislation.

H.R. 2419, S. 2302: Farm Bill Extension Act of 2007
The Farm Bill Extension Act of 2007 reauthorizes a five-year $280 billion farm bill that would increase conservation funding and addresses the water and wastewater rural utilities program project backlog. The Conservation Title reauthorizes several important conservation programs including EQIP, Conservation Stewardship Program, and Wetland Reserve Programs. The title also includes a new program, the Regional Water Enhancement Program (RWEP), which lays out a framework for funding conservation projects involving multiple stakeholders including water utilities. Eligible projects under the RWEP will include water quality, quantity or conservation programs; groundwater recharge; stormwater capture; and other water quality-related activities. The Rural Development Title provides significant funding for rural water and wastewater projects, programs for community facility development, and regional economic development initiatives, among others. The House passed its version of the Farm Bill in July and the Senate finally reached agreement on the bill early in December 2007. The two bills will need to be reconciled in conference before the legislation is sent to the President for his signature. The President has threatened to veto the bill. Action on the conference report is unlikely until February or March 2008. APWA members were actively engaged in advocating for passage of robust Conservation and Rural Development Titles. The next battle on this front will be working to ensure that congressional appropriators provide enough funding for these vital programs.

H.R. 2421, S. 1870: Clean Water Restoration Act of 2007
The Clean Water Restoration Act of 2007 seeks to clarify that certain isolated non-navigable waters should fall under the CWA jurisdiction and ensure broad protection for isolated, non-navigable waters by removing all references in the CWA to "navigable waters" and replacing them with the term "waters of the United States." The bills were followed closely by the release of a joint EPA USACE guidance directing field staff on the process for making jurisdictional determinations. Initial reaction to the guidance has been mixed and there is some anecdotal evidence that confusion over implementing the guidance is resulting in permitting delays of approximately three months or more. APWA has been actively engaged in working with congressional staff to craft a workable solution to the confusion created by last year's Rapanos Supreme Court decision that muddied section 404 jurisdictional determinations.

S. 1429: Small System Safe Drinking Water Act of 2007
This legislation would prevent EPA from levying fines on communities with sub-par drinking water systems if the federal government has not provided them with sufficient funding to make upgrades. Under the bill, enforcement of certain national drinking water regulations would be prohibited if eligible municipalities have not received enough funds to pay the federal share of upgrades. The legislation applies to water systems serving fewer than 10,000 individuals. The bill recommends allocating $15 million per year for each of the fiscal years from 2008 to 2012. The bill mandates that EPA ensure that small public water systems not cost users more per-capita basis than large water systems. It also requires that EPA to the maximum extent practicable ensure that small public system workers receive the technical assistance and training needed to comply with national public drinking water standards. Finally, the bill would establish a panel of experts to review the health effects of arsenic and disinfection byproducts and to report these findings to the Senate EPW Committee and the House Energy and Commerce Committee 180 days after the bill is enacted.

Regulatory Highlights

Preliminary Effluent Guidelines Plan
The Preliminary Effluent Guidelines Plan provides information and seeks comments on EPA's 2007 annual reviews of effluent limitation guidelines and pretreatment standards for both existing and non-regulated categories, as well as its preliminary plan for 2008. The Preliminary Plan contains updates on the current detailed studies of four existing categories: Steam Electric Power Generating; Coal Mining; Oil and Gas Extraction; and Hospitals. The Hospitals category is included in a broader, more detailed study on the Health Services Industry, which is a proposed new category that also includes dental clinics, long-term care facilities, veterinary clinics, and medical laboratories and diagnostic centers. This category change could bring about 475,000 new dischargers into the pre-treatment program.

Green Infrastructure
EPA issued a memorandum to clarify how green infrastructure can be incorporated into existing regulatory programs in an effort to improve water quality. The Water Permits Division and the Water Enforcement Division of the Office of Enforcement and Compliance Assistance (OECA) issued the memo to regional EPA Water Division Directors and Enforcement Coordinators, as well as all state NPDES program directors. The memo states that "in developing permit requirements, permitting authorities may structure their permits, as well as guidance or criteria for stormwater plans and CSO long-term control plans, to encourage permittees to utilize green infrastructure approaches, where appropriate, in lieu of or in addition to more traditional controls." For enforcement activities, EPA will consider the feasibility of using green infrastructure as a pollution control option and encourages states to do this as well. APWA joined with a group of stakeholders including the National Association of Clean Water Agencies, the Low Impact Development Center and the Natural Resources Defense Council in supporting this initiative.

Watershed Permitting Guidance
EPA published a new technical guidance on integrating NPDES permits into watershed management plans. The Watershed-Based NPDES Permitting Technical Guidance is a follow-up to the 2003 watershed permitting implementation guidance and it leads interested parties through an analysis of watershed data and the development of a framework for implementing the NPDES program. The guidance also includes case studies describing how watershed approaches involving NPDES permitting have been implemented across the country.

Water Sector Specific Plan
EPA and the Department of Homeland Security (DHS) issued the final Critical Infrastructure and Key Resources Sector Specific Plan for the Water Sector as an input to the National Infrastructure Protection Plan. The Water Sector Specific Plan outlines security and emergency response objectives for water and wastewater utilities and identifies four water sector security goals: (1) sustain protection of the public health and the environment; (2) recognize and reduce risks in the water sector; (3) maintain a resilient infrastructure; and (4) increase communication, outreach and public confidence. A copy of the plan can be found at http://www.dhs.gov (search for Water Sector Plan).

Water Related Climate Change Effects
The EPA National Center for Environmental Assessment (NCEA) releases three draft reports that examine the effects of climate change on watersheds and aquatic ecosystems. Climate & Land-Use Change Effects on Ecological Resources in Three Watersheds: A Synthesis Report provides watershed planners and managers with improved capabilities to consider climate and land-use change and provides summaries and comparisons from case studies of various watersheds. Climate Change Effects on Stream and Biological Indicators: A Preliminary Analysis describes how biological indicators of ecosystem health may respond to climate change and concludes that data from current sampling methods may be used to detect climate change impacts. Effects of Climate Change on Aquatic Invasive Species and Implications for Management examines state-level invasive species management plans and their capability to incorporate changing environmental conditions, particularly climate change, and concludes that more research and data collection are needed for optimal invasive species management considering climate change. The three reports are available at http://cfpub.epa.gov/ncea.

Underground Carbon Dioxide Storage
EPA announced its intention to develop regulations for underground injection of the greenhouse gas carbon dioxide into deep rock formations for long-term storage. The regulations will aim to ensure that there is a consistent and effective permit system under the Safe Drinking Water Act for commercial scale geologic sequestration programs to help reduce the effects of climate change. EPA plans to propose regulatory changes to its underground injection control program in the summer of 2008.

Effective Utility Management Collaboration
Last year APWA joined with the Association of Metropolitan Water Agencies, American Water Works Association, National Association of Clean Water Agencies, National Association of Water Companies, the Water Environment Federation and EPA in a historic agreement to promote effective utility management across the water sector. Based on recommendations from a group of utility leaders, the Collaborating Organizations identified ten Attributes and several Keys to Management Success that provide a succinct indication of where effectively managed utilities should focus and what they should strive to achieve. The Partners recommended that the water utility sector adopt and utilize these Attributes as a basis for promoting improved management within the sector. The Attributes can be viewed as a set of building blocks for management improvement opportunities. The Attributes and Keys to Management Success provide the sector with a common framework to manage and sustain water infrastructure and ensure sustainable utility operations. As 2008 proceeds the Collaboration intends to provide several key products, including an implementation guide, an online resources toolbox tied to the Attributes, and sample utility performance measures linked to the Attributes to help utilities gauge their progress and manage more effectively under this framework.