(December 22, 2018) - After significant advocacy work by NACWA and a wide array of partners, Congress approved legislation earlier today codifying EPA’s Integrated Planning approach into law as part of the Clean Water Act (CWA). The bill, which marks one of the most significant substantive changes to the CWA in decades, now awaits President Trump’s signature.

Passage of this legislation, along with earlier approval of the 2018 Farm Bill, caps a whirlwind few weeks of legislative activity that will have profound positive impacts for the public clean water sector.  This Advocacy Alert provides additional information and analysis on the Integrated Planning legislation and the Farm Bill. 

Members with questions on any of these issues can contact Kristina Surfus or Jason Isakovic, NACWA’s Legislative Directors.    

Congress Passes Language Codifying Integrated Planning

The Integrated Planning legislation, known as the Water Infrastructure Improvement Act of 2018 (H.R 7279), is a significant advancement in CWA policy. The final bill enjoyed overwhelming bipartisan support, passing the House on Wednesday, Dec. 19^th with a vote of 351-10 and passing the Senate earlier today by Unanimous Consent.

The legislation has been a top legislative advocacy priority for NACWA this Congress. The Association led the charge to get the bill passed, working closely with a wide range of partners including the US Conference of Mayors, the National League of Cities, the National Association of Counties, the Water Environment Federation, the American Public Works Association, the National Association of Regional Council, and others.  NACWA is deeply grateful to these partners for their collaboration, and the municipal groups joined together on a joint press statement following passage of the bill. NACWA also issued its own press statement.

NACWA Legal Affiliate Barnes & Thornburg (B&T) also provided critical guidance and assistance to the Association to advance this legislation, and the Association is very grateful to Fred Andes, Eddie Ayoob, and the entire B&T team for their work and expertise. 

Integrated Planning Background

Thanks to lengthy advocacy efforts by NACWA and other groups, EPA recognized the municipal regulated community’s need for flexibility and, in 2012, developed its Integrated Municipal Stormwater and Wastewater Planning Approach Framework.  However, this program remains entirely discretionary and EPA has the capacity to advance it as much or as little as it chooses or even to abandon it at any time.  To ensure its permanent availability as a tool for public clean water utilities, NACWA has been working with Congress over recent years to advance bipartisan legislation to codify the Integrated Planning (IP) Framework into law. 

Several different proposals had been introduced in recent Congresses by an array of Members of Congress, making consensus on a path forward somewhat challenging. Throughout the 115^th Congress, NACWA worked closely with key Congressional Committees and Member staff to reach a bipartisan agreement on this issue. Congressional staff painstakingly revised and negotiated language with direct input from NACWA and other stakeholders to reach the final bill. 

New Legislation Advances Needed Clean Water Act Flexibilities for Local Governments

The new legislation is a major improvement over the CWA status quo. The bill codifies into the law EPA’s Integrated Planning process, providing crucial legislative certainty to local communities seeking to develop an Integrated Plan to manage costs and prioritize their clean water investments. The IP changes make clear via statute that not only can a local government purse integrated planning approaches via a permit or within the enforcement context, but the language also expands the ability of a utility to prioritize and sequence wastewater and stormwater compliance obligations – as well as water reuse, water recycling, green infrastructure and other innovative projects – over more than one permit term.

Additionally, the bill directs EPA to support the use of green infrastructure in permits, consent decrees and settlement agreements. The legislation also establishes, for the first time, a Municipal Ombudsman office within EPA to act as a liaison between EPA and the municipal regulated community to help address regulatory concerns.

As compared to prior bills, the current legislation does not include language related to EPA’s financial capability and affordability guidance.  However, Members of Congress and their staff recognize that EPA is already working to update the guidance in line with recommendations from the Congressionally-directed National Academy of Public Administrators (NAPA) report – a process NACWA and other stakeholders have been engaged in. There is broad congressional agreement to keep working on financial capability and water affordability issues next Congress, and Members of Congress from both parties have made a commitment to take this issue up early in 2019.

An important addition in the legislation that was not included in prior bills is language clarifying that integrated plans can include innovative projects such as those to “reclaim, recycle, or reuse water,” and can also include the use of green infrastructure.  NACWA requested these additions to ensure that integrated planning can encompass as broad a range of potential options as possible.

Bill Sets Stage for Additional CWA Modernization with Help of Key Congressional Champions

While the CWA changes made by this legislation are significant, NACWA believes it is just the beginning of efforts to modernize the CWA to address the new suite of challenges and opportunities facing the municipal clean water sector. Under the direction of NACWA’s Board of Directors, the Association will be working hard in the next Congress to build on this success.

The overwhelming bipartisan support ultimately achieved with this bill also shows that, through diligent advocacy and thoughtful compromise, meaningful CWA changes that cross ideologies and party lines can be achieved. This sentiment was highlighted by key Congressional champions in their floor remarks during House debate of the bill.

NACWA would like to recognize the following Members of Congress for their vital efforts and support in advancing this important legislation: Senators Deb Fischer (R-NE), Sherrod Brown (D-OH), John Boozman (R-AR), Ben Cardin (D-MD) and Rob Portman (R-OH); and Representatives Bob Gibbs (R-OH), Grace Napolitano (D-CA), Bob Latta (R-OH), Steve Chabot (R-OH), Cheri Bustos (D-IL), Marcia Fudge (D-OH) and Dave Joyce (R-OH). Each of these Members was vital to advancing the legislation. If your utility is represented by any of these Members, we encourage you to reach out to them with your appreciation.

The entire Association also greatly appreciates our many engaged utility members that have provided testimony to Congress, reached out to their Congressional delegations, and highlighted these issues over the years during the National Water Policy Fly-In and other events. This constituent engagement is vital to raising the profile of important issues on behalf of your own community and the entire public clean water sector!

NACWA looks forward to working collectively with our members and partners to build on the success of this legislation and to ensure that EPA continues to see integrated planning as a core program now ensconced within the four corners of the Clean Water Act.  

2018 Farm Bill Advances Holistic Watershed Solutions

The 2018 Farm Bill, officially titled the Agriculture Improvement Act of 2018 (H.R. 2), was overwhelmingly passed in both the House and Senate last week and was signed into law by President Trump on Dec 20.  The legislation contains a number of key bipartisan priorities that NACWA and its Farm Bill Work Group have advocated for over the past year. 

Background

The Farm Bill is a comprehensive, multi-year piece of legislation renewed about every five years that authorizes and sets policies across a wide array of agricultural and food programs, including conservation. Given that nutrient loading problems from non-point sources such as agricultural runoff are increasingly becoming leading contributors to water quality impairments in many watersheds, and that these impairments are raising compliance costs for public clean water utilities, NACWA has increasingly focused on the Farm Bill as a legislative priority.

In its advocacy on the 2018 Farm Bill, NACWA pursued a holistic, collaborative, and innovative approach to addressing water quality at a watershed level that will provide measurable environmental and public health improvements while maximizing the return for dollars invested.  By partnering with farmers and landowners, clean water agencies may be able to meet water quality standards more cost-effectively, help reduce the need for future regulation, increase farmer productivity, and provide ancillary ecosystem benefits to the watershed.

In 2017, NACWA formed a Farm Bill Work Group to advocate with Congress and the Administration on bipartisan conservation policies that can help achieve these water quality goals through partnerships and provide dual benefits to both farmers and utilities.  Since then, NACWA and the Work Group have collaborated closely with Republicans and Democrats on both the Senate and House Agriculture Committees – and also with partners in the agricultural community – in drafting the 2018 Farm Bill to include policies, funding tools and reforms to better address many of the nation’s water quality challenges through a holistic and collaborative watershed approach.

As a result, the final 2018 Farm Bill passed into law included several key NACWA’s priorities and conservation policies that will help public clean water utilities better meet their growing water quality challenges and obligations.

Summary of Key Farm Bill Provisions

Specific provisions which will be signed into law as part of the 2018 Farm Bill are detailed below.

Sense of Congress relating to increased watershed-based collaboration

• The bill includes language that provides for the “Sense of Congress that the federal government should recognize and encourage partnerships at the watershed level between nonpoint sources and regulated point sources to advance the goals of the Clean Water Act and provide benefits to farmers, landowners, and the public.”

This important provision, which was championed by Congressman Bob Gibbs (R-OH) and Senator Chuck Grassley (R-IA), can provide regulatory leverage for public utilities to gain greater and more appropriate recognition from the federal government for watershed-based investments/partnerships upstream with farmers and landowners to better meet regulatory obligations more cost effectively and help improve water quality and public health.  It also underscores that clean water utilities are natural partners on conservation efforts – and natural recipients of conservation program funding opportunities.

NACWA has already begun engagement with EPA and the U.S. Department of Agriculture (USDA) on this provision to ensure proper and timely implementation throughout regional and state programs.

Regional Conservation Partnership Program (RCPP) Reforms

Since its creation in the 2014 Farm Bill, the RCPP has been an important program for clean water utilities and farmers to partner around watershed-based investments.  The simplification and streamlining of the program under the 2018 Farm Bill will allow utilities to address nutrient management and water quality challenges in a more cost-effective, innovative, and collaborative manner.  The RCPP reforms in the bill championed by Senators Debbie Stabenow (D-MI) and Joni Ernst (R-IA) include:

• A restated purpose of the program that now includes “To further the conservation, protection, restoration, and sustainable use of soil, water (including sources of drinking water and groundwater), wildlife, agricultural land, and related natural resources on eligible land on a regional or watershed scale.”
• Directing USDA to develop a simplified contract/application.
• Allowing partners to extend a contract one time for not longer than 12 months, if USDA determines the project has met or exceeded expectations, such that partners may renew the project through an expedited noncompetitive process.
• Allowing in-kind work to be counted towards the partner’s match – this includes staff salaries and development of the partnership agreement.
• Mandatory program funding at $300 million annually (an increase from $100 million annually) and an increased targeting of funds on Critical Conservation Areas, which should benefit water quality.

Several NACWA Members are currently partners in RCPP grants, and others are considering applying in future funding rounds.  NACWA is in touch with USDA to understand how quickly these changes will be implemented and whether any of the changes, such as the opportunity to extend a contract, will apply to existing partnerships. 

Source Water Protection Through Targeting of Agricultural Practices

Championed by the drinking water sector, and supported by NACWA, this component of the bill directs USDA to encourage practices related to water quality and quantity that protect drinking water sources in all of the conservation programs. It also requires USDA to work with utilities and states to identify priority areas of protection for source water and ensures that at least 10% of the overall conservation funds shall be used for drinking water source protection. The bill also includes $5 million for Grassroots Source Water Protection Program.

Precision Agriculture Technology

NACWA advocated for provisions under the bill for the increased use of precision agriculture technology, which can be a key tool in mitigating unnecessary runoff from farm fields, advance water quality, and make better use of resources.  The bill:

• Highlights the importance of precision agriculture in allowing farmers to significantly increase crop yields, eliminate overlap in operations, and reduce inputs such as seed, fertilizer, pesticides, water, and fuel.The bill also promotes these technologies to allow farmers to collect data in real time about their fields.
• Establishes a Task Force for Reviewing the Connectivity and Technology Needs of Precision Agriculture in the U.S. to identify gaps in rural technology and make policy recommendations to help address these issues.
• Provides funding under the Conservation Innovation Grant (CIG) program for new trials focusing on precision agriculture, enhanced nutrient management planning, soil health, and cover cropping.

Data on Conservation Practices

The bill requires USDA to identify available data on the use of conservation practices and the effect of such practices on farm and ranch profitability, including effects relating to crop yields and soil health.  A report must be submitted to Congress within one year with a summary of the data sets and any steps needed to expand or improve the collection of existing data to benefit the usefulness for research and analysis.

Watershed-based conservation outcomes can be difficult to quantify. Greater collection, evaluation, analysis, and verification of the impact conservation practices are having on farms and water quality is imperative to forging further upstream partnerships and mitigating against water quality impairments.  NACWA has advocated for the increased use of this type of data as it will help strengthen the case for considering watershed-based approaches to managing water quality and believes this is a good first step.

Additional Targeted Water Quality Conservation Improvements and Flexibilities

The legislation allows states to develop ten high priority practices that will be eligible for increased payments under the Environmental Quality Incentives Program (EQIP) to address specific causes of excess nutrients in groundwater or surface water.  USDA is directed to identify watersheds and corresponding resource concerns for those watersheds for Conservation Incentive Contracts.  The program is provided a $275 million-per-year increase each year over the next few years.  Additionally, the bill:

• Requires USDA to establish a Clean Lakes, Estuaries, and Rivers (CLEAR) initiative under the Conservation Reserve Program (CRP) which will emphasize practices that reduce sediment loading, nutrient loading and algal blooms.The Farm Services Agency (FSA) will publish an annual report on CRP benefits including the estimated water quality benefits of enrolled acres. The program includes 30-year contracts, providing certainty of outcomes over the long-term.

• Directs USDA to review all the current conservation practices and create a process to expedite the review of new conservation standards.
• Expands who can be a certified provider of technical assistance to include ag retailers and ag cooperatives. The Natural Resources Conservation Service (NRCS) faces a significant backlog which can slow project approvals and implementation.This change will help utilities work with their local retailers for technical assistance to expedite conservation program applications and approvals.

Throughout the Farm Bill, many conservation groups were concerned about whether individual conservation programs would be maintained or eliminated. The final bill preserves existing programs while reallocating funds within them. The Environmental Quality Incentives Program (EQIP) will see a $275 million-per-year increase, while Conservation Stewardship Program (CSP) funds will be reduced.

NACWA will now focus its attention on working with USDA and EPA to implement these important water quality policies included in the Farm Bill.  While more work remains to be done to ensure a greater approach to holistic watershed-based solutions, the Association appreciates the collaboration from its agricultural partners and Congress’ bipartisan work over the past year to increase USDA’s focus on water quality and enhance existing conservation and watershed programs through the 2018 Farm Bill.