This Week in Washington is a weekly publication of the Water Environment Federation’s Government Affairs department. It provides updates on the latest legislative and regulatory developments that affect the water and wastewater communities.

June 23, 2006

Provided by the Water Environment Federation, Alexandria, VA

Senate Appropriations Committee Passes FY07 Agriculture Bill
The Senate Appropriations Committee passed its version of a fiscal year 2007 spending plan for the Department of Agriculture, approving $18.2 billion in discretionary spending for the Department, compared to the administration’s request of $17.8 billion.  The Senate plan would restore many of the cuts in conservation programs that the Administration requested, including funding for the watershed surveys and planning and watershed and flood prevention programs.  Overall discretionary spending for conservation programs administered by the Natural Resources Conservation Services would be $835 million. The watershed rehabilitation program would receive $31 million, $16 million above the Administration’s request.  The Environmental Quality Incentives Program would receive $1.031 billion, $63 million would go to the Wildlife Habitat Incentives Program, and $48 million would go to the Farmland Protection Program.  These last three programs are funded with mandatory funding through the Commodity Credit Corporation and are not part of the overall discretionary budget.  In addition, the Senate bill would authorize full enrollment of 250,000 acres in the Wetlands Reserve program.  (PS) 

Supreme Court Fails to Agree on Treatment of Wetlands under Clean Water Act
On Monday, the Supreme Court issued a plurality opinion in two cases challenging the reach of the Clean Water Act’s (CWA) jurisdiction over wetlands.  A majority of the Supreme Court justices were only able to agree on vacating the judgment in the two civil enforcement actions - Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers – and remand the case to the U.S. Court of Appeals for the Sixth Circuit for further factual determinations and reconsideration of whether the wetlands in question are “waters of the United States” as defined in the act.  The justices disagreed on what standard to apply in determining whether wetlands are to be considered “waters of the U.S.” for purposes of CWA jurisdiction.  Both cases involved developers who wanted to develop parcels of land on which wetlands were present and refused to apply for a permit under CWA rules for wetlands development.  Prior to the Court’s decision, the standard was whether the wetlands were hydrologically connected to streams and tributaries that flow into waters of the United States.  With this recent Court decision, that standard is now no longer applicable, however it is unclear what standard should not be applied.  The plurality opinion written by Justice Antonin Scalia argued that the standard should be whether wetlands have a continuous surface connection to waterbodies that are themselves relatively permanent bodies of water before requirements under the CWA can be triggered.  However, Justice Anthony Kennedy, while voting with the majority to remand the case, wrote a separate opinion in which he argued that the standard should be whether there is a “significant nexus” between the wetlands and streams and tributaries that flow into navigable waterbodies.  Given that the Court failed to identify a majority opinion for a more restrictive standard, it will be up to the courts to decide on a case-by-case basis whether to apply CWA requirements to cases in which wetlands may be dredged and filled.  (PS)

EPA Proposes Revisions to CAFO Permitting Rule; Covers Fewer CAFOs
On June 22 the U.S. Environmental Protection Agency (EPA) announced proposed revisions to the National Pollutant Discharge Elimination System (NPDES) permitting requirements and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs) rule issued in 2003.  The revisions are in response to a court ruling in 2005 by the U.S. Court of Appeals for the Second Circuit in Waterkeeper Alliance, et al., vs. EPA, which both upheld and vacated or remanded provisions of the CAFO regulations.  The proposal would not require CAFOs land applying manure, litter or processed wastewater to get NPDES permits if the only discharge from those facilities is agricultural stormwater.  Only CAFOs that discharge or propose to discharge would need to apply for a permit.  EPA estimates that 18,800 CAFOs are in the U.S., a growth of approximately 22% from 2002 to 2005.  The proposed rule is anticipated to reduce the number of facilities needing permit coverage to approximately 14,000 CAFOs; approximately 25 percent fewer than would have been permitted under the requirements of the 2003 rule.

The proposal would provide the public with the opportunity to review nutrient management plans by requiring CAFOs to submit them with their permit application. Permitting authorities would be required to provide public notice and review of the plans, and include them as enforceable elements of the permit.  The proposal also clarifies the selection of best conventional technology for fecal coliform bacteria.  EPA will accept public comments up to 45 days after publication in the Federal Register.  A copy of the proposed rule is available at http://www.epa.gov/npdes/afo/revisedrule. (SRT)

Quote of the Week: “Don't knock the weather; nine-tenths of the people couldn't start a conversation if it didn't change once in a while.”  ~Kin Hubbard

This Week in Washington is provided by the Water Environment Federation, Alexandria, VA. To receive This Week in Washington by e-mail, contact Lisa Jones, (703) 684-2400 ext. 7741, ljones@wef.org. For more information on this week's stories, please contact the WEF staff whose initials appear at the end of the item in which you are interested. TW –Tim Williams (703) 684-2437, twilliams@wef.org; SRT - Sharon Thomas, (703) 684-2423, sthomas@wef.org; SJH - Sam Hadeed (703) 684-2418, shadeed@wef.org; PS-Patricia Sinicropi (703) 684-2416, psinicropi@wef.org. This Week in Washington is available on-line at http://www.wef.org/GovernmentAffairs/TWIW/.