On October 29, the U.S. House of Representatives and the Senate approved the conference report providing appropriations for the Environmental Protection Agency, Department of the Interior and other agencies. The Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, passed on a party line vote (247-178) and included significant increases for EPA programs including a $2 billion increase over FY09 SRF programs. 

The bill provides $3.6 billion federal assistance for communities’ water infrastructure programs including $1.38 billion for the Drinking Water State Revolving Loan Fund and $2.1 billion for the Clean Water State Revolving Fund, which will be allocated to states under existing distribution formulas. In addition, $157 million was earmarked for specific municipal projects. Additional notable project funding includes $17 million for architectural, engineering, planning, design, construction and related activities in connection with the construction of high priority water and wastewater facilities in the area of the United States-Mexico Border, and approximately $157 million for project grants for the construction of drinking water, wastewater and storm water infrastructure along the border.

Similar to the Recovery Act, this bill requires that 30% of funds be distributed in the forms of grants, loan principal forgiveness or negative interest loans for communities with the greatest needs. Additionally, 20% of the funds must be used by the states for projects to address green infrastructure, water or energy efficiency improvements, or other environmentally innovative activities. Other program changes in the bill include the addition of Davis-Bacon prevailing wagers under a compromise agreement that will apply these wages for a period of one year. The bill does not include Recovery Act “Buy American” requirements.

Other significant programs receiving funding in the bill include:

• $475 million for the Great Lakes Restoration Initiative
• $605 million for Superfund activities
• $113 million to inspect and clean up toxic spills from underground storage tanks
• $100 million for evaluation and cleanup of Brownfields
• $385 million for Climate Change Programs
• $556 million for Forest Service construction, capital improvement, maintenance
• $395 million for Indian  Health Facilities Construction
• $125 million for Smithsonian Institution Construction

To view a complete copy of the conference report including earmarked projects in individual states, click here.

For additional information, contact Perry L. Fowler at fowlerp@agc.org or (703)837-5321.

On October 29, 2009, the U.S. Department of Transportation’s Pipeline and Hazardous Material Safety Administration (PHMSA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Pipeline Safety: Pipeline Damage Prevention Programs. The purpose of the notice is to begin soliciting comments assessing the adequacy of state enforcement of oil and gas pipeline damage prevention laws, and to begin developing criteria for federal enforcement of damage prevention laws in states that are deemed to have inadequate enforcement of damage prevention laws for excavators, utility/facility owners, one-call centers and professional locaters as mandated by the 2006 PIPES Act. 

The PIPES Act gives PHMSA limited "backstop" authority to conduct civil enforcement against excavators in states that have failed to do so effectively if certain conditions are not met.  Specifically, section 2(a) of the PIPES Act limits PHMSA's authority to conduct federal civil enforcement actions against "persons who violate that State's damage prevention laws, unless the Secretary of Transportation has determined that the State's enforcement is inadequate to protect safety, consistent with this chapter, and until the Secretary issues, through a rulemaking proceeding, the procedures for determining inadequate State enforcement of penalties."

Other information being sought includes potential establishment of the federal standards for excavators that PHMSA would enforce if a state has been found to have an inadequate enforcement program. At a minimum, the standards will include requirements for an excavator to “use an available one-call system before digging, wait the required time, excavate with proper regard for location information or markings established by the pipeline operator, promptly report any damage to the pipeline operator, and report any release of hazardous products to appropriate authorities by calling 911.”  PHMSA is also soliciting feedback and comments on the adequacy of PHMSA’s existing requirements for pipeline operators to participate in one-call organizations, respond to dig tickets, and perform their locating and marking responsibilities.

PHMSA's goal in this process is to minimize the need to declare state damage prevention programs inadequate by working with states to strengthen their own enforcement programs. AGC has been assured that PHMSA will take a balanced approach in the development of enforcement regulations in this rulemaking process and will continue to work with AGC and the Common Ground Alliance (CGA) to ensure that the principles of fairness and shared responsibility are adhered to as the process moves forward.

Click here to download a copy of the ANPRM.

AGC will formally solicit comments from members and Chapters to incorporate into our initial comments to PHMSA.  In the meantime, AGC would like to encourage members and Chapters to read the ANPRM and share any initial comments and examples of good or bad state damage prevention programs and cooperative efforts. The initial round of comments must be submitted to PHMSA by December 14, 2009. After PHMSA has had an opportunity to review all comments, the agency will begin working on a “proposed rule” that will be subject to another round of comments and possible public hearings.

Please direct any questions or comments to Perry L. Fowler at (703) 837-5321 or fowlerp@agc.org.

H.R.3202, the "Water Protection and Reinvestment Act," was introduced by Congressman Earl Blumenauer (D-Ore.) on July 14, 2009, with bipartisan support. It establishes a five year $50 billion fund for repairing America's corroded pipes and overburdened sewer systems, which pose serious health, environmental and security risks. The Water Protection and Reinvestment Act will provide a deficit neutral, off-budget and firewalled dedicated revenue source for water infrastructure that will not be subject to the uncertainties of the annual appropriations process.

Unlike the Highway Trust Fund's reliance on the "gas tax" as a sole source of revenue, H.R. 3202 will be financed broadly by small user fees at the manufacturer level on goods that depend on municipal water supplies such as water-based bottled beverages and flushable products that are disposed of and treated by municipal wastewater systems. Additional miniscule fees on pharmaceuticals, over the counter drugs and a small corporate fee will establish a long-term, sustainable source of revenue to ensure economic prosperity and protect the health of people and the environment.

To learn more about H.R. 3202 and what you can do make stable annual funding for drinking water and wastewater infrastructure a reality, visit the AGC Legislative Action Center.

For additional information, contact Perry L. Fowler at fowlerp@agc.org or (703)837-5321.

 President Barack Obama on October 28 signed into law $33.5 billion spending bill to fund government energy and water programs for the 2010 fiscal year.

The final piece of legislation includes $5.4 billion in funding for the Corps of Engineers, $43 million above FY 2009 and $320 million above the administration’s 2010 request. The agreement includes $2.4 billion, $198 million above 2009, to address more than $1 billion in the backlog of operations and maintenance for navigation infrastructure that is critical to the U.S. economy.
The bill also includes $2 billion for construction projects, $313 million above the request, and $160 million for investigations, $60 million above the request, "to plan and design America’s next generation of water resource infrastructure."

Finally, the bill provides $1.13 billion to the Interior Department, $67 million above the request and $12 million above 2009, to continue to support and improve the nation’s water infrastructure, including $1.1 billion for the Bureau of Reclamation for dams, canals, water treatment and conservation, and rural water projects.

The full text of the law can be accessed here.

Further details are included in the Conference Report.

For more information, contact Marco Giamberardino at giamberm@agc.org

U.S. Environmental Protection Agency (EPA) Administrator Lisa Jackson appeared October 15 before the U.S. House of Representatives Committee on Transportation and Infrastructure to discuss the Clean Water Act's (CWA) permit program and EPA's immediate plans to strengthen its enforcement efforts. Jackson specifically called out construction sites as one of "the biggest threats" to our nation's waters, adding that EPA needs "to target enforcement to the most serious violations and the most significant sources."  To address what she describes as an "unacceptably low" level of enforcement activity, Administrator Jackson announced the release of EPA's new action plan to strengthen federal and state CWA enforcement. 

In her testimony to the Committee, Administrator Jackson stated that "it is long overdue for EPA to reexamine its approach to Clean Water Act NPDES [National Pollutant Discharge Elimination System] enforcement to…address the water pollution challenges of this century."  Recipients of all types of NPDES permits can expect to see increased enforcement by EPA - including criminal and civil penalties for noncompliance - as well as more reporting and public oversight. The Administrator went on to highlight EPA's new "Clean Water Act Enforcement Action Plan" that calls for the following actions:

1. Target Enforcement to the Most Important Water Pollution Problems - EPA will tackle violations of existing law by the sources of pollution posing the biggest threats to water quality.
2. Strengthen Oversight of State Permitting and Enforcement Programs - In situations where states are not issuing protective permits or taking enforcement to achieve compliance, EPA needs to act to strengthen state programs and to pursue federal enforcement actions as necessary.
3. Improve Accountability and Transparency - EPA believes that making information on environmental discharges available to the public will increase the pressure on regulated facilities to self-police and reduce their pollution.

During the course of the hearing, Administrator Jackson was asked about the EPA's position on the S. 787 the Clean Water Restoration Act.  She responded that the Obama Administration believes that Congress could bring more clarity to the permitting issues that have been the subject of confusion regarding jurisdictional issues between the U.S. Army Corps of Engineers and EPA and related Supreme Court decisions. Chairman Oberstar noted that he has not introduced companion legislation to S.787 yet.  Several Committee members expressed concerns about removing the term "navigable" from the Clean Water Act.  AGC has actively opposed this legislation because it would give EPA and the Corps jurisdiction over all wet areas-however remote or intermittent. At a recent hearing before the Small Business Panel on Waters and Wetlands Regulations, AGC testified that the bill would require construction contractors and project owners to obtain and be regulated by federal Clean Water Act permits far more frequently than is currently required. 

Administrator Jackson was also asked about the Obama Administration's position on the creation of a Clean Water Trust Fund.  Jackson indicated that the Obama Administration did not have a position for or against the "Trust Fund," but acknowledged that there was a major gap in the current investment in clean water infrastructure. 

AGC has been involved in direct talks with the EPA's enforcement arm, the Office of Enforcement and Compliance Assistance (OECA), and will continue to engage in discussions with EPA and the T&I Committee to ensure that the construction industry's concerns are heard and that EPA efforts include increased compliance assistance and industry outreach in addition to increased enforcement actions.

To view Administrator Jackson’s and other testimony and video of the hearing, click here.  To view EPA’s Clean Water Enforcement Action Plan, click here.

 For addition information, please contact Leah Pilconis at pilconisl@agc.org.