JOBS BILLThe AGC co-chaired WIN Coalition has been steadfastly working with Senate leaders to ensure that a significant water infrastructure funding component be included in any infrastructure proposals to be considered in the U.S. Senate.  WIN has been involved in ongoing discussions on Capitol Hill focusing on additional measures to create jobs through infrastructure investment and has been spearheading these efforts in Washington, DC. Subsequent to ongoing WIN efforts, Senators Benjamin Cardin (D-MD), Chairman of the Senate Environment and Public Works Water & Wildlife Subcommittee, and Senator Sheldon Whitehouse (D-RI) have circulated a "Dear Colleague" letter which has been signed by 30 Senators calling for $3 billion for the EPA Clean Water State Revolving Fund (SRF) and $3 billion for the Safe Drinking Water SRF.  AGC and the WIN Coalition are aggressively supporting this $6 billion investment and will continue advocating for a substantial water infrastructure component in any legislation aimed at job creation.In November 2009, AGC of America compiled an initial survey of States that identified over $50 billion in approved projects on state's intended use plans in an effort to inform Congress about the significant needs that currently exist. These figures have helped to justify the push for increased investment in water infrastructure and were provided to key Senate offices and Committees.  Subsequently, a survey was conducted by the Environmental Council of States (ECOS), in association with the Council of Infrastructure Financing Authorities (CIFA) and the Association of State and Interstate Water Pollution Control Administrators (ASWIPCA) which indicated that in 33  states alone there are currently needs approaching $56 billion which will not receive funding from FY10 appropriations or the Recovery Act. The WIN Coalition has been conducting outreach in the Senate to convey our support for investing these substantial needs and the potential employment, public health and environmental benefits.Click here to view the "Dear Colleague" promoting water infrastructure.Click here to view the latest letter from the WIN Coalition to the Senate.Click here to view the ECOS survey of projects.EPA BUDGETOn February 1, 2010 the Obama Administration unveiled its FY 2011 Budget.  As promised in the President's State of the Union Address, many programs experienced significant cuts and the EPA State Revolving Loan Fund (SRF) programs were not immune.  Compared to the FY10 proposed level of $3.9 billion the FY 2011 budget recommends $3.3 billion; $2 billion for the Clean Water SRF and $1.3 billion for the Drinking Water SRF. While this funding level is disappointing, these amounts are still significantly higher than the FY 2009 enacted budget for both programs which totaled $1.5 billion.To view a condensed memo on EPA funding click here.These cuts underscore the need for reauthorization of the SRF program at higher levels and new financing approaches such as establishment of a water infrastructure trust fund.AGC will feature additional information on the FY 2011 budget in this week's Construction Legislative Week in Review.SRF REAUTHORIZATIONAGC and WIN continue to push for the reauthorization of the SRF Program with substantial annual funding increases.  S.1005 authorizes $39.191 billion for EPA water infrastructure programs over the next five years and represents a significant increase for EPA federal assistance programs including $20 billion for the Clean Water State Revolving Fund Program and $14.7 billion for the Drinking Water State Revolving Fund Program. SRF Reauthorization has stalled in the Senate and AGC would like to encourage members to continue generating letters indicating their support of reauthorization by utilizing the AGC Legislative Action Center or by visiting www.agc.org/water to contact Senators.SRF20102011201220132014TotalClean Water$3.2b$3.2b$3.6b$4b$6b$20bDrinking Water$1.5b$2b$2b$3.2b$6b$14.7bWATER TRUST FUNDEstablishment of a dedicated trust fund for water infrastructure continues to be a top priority for AGC and the WIN Coalition.  In the last quarter of 2009 the WIN Coalition coordinated and participated in over 100 meetings with members of the U.S. House of Representative in order to garner additional co-sponsors for HR 3202 the Water Protection and Reinvestment Act, and raise awareness about the benefits of the establishment of a dedicated revenue source for water infrastructure.  To date there are 28 co-sponsors and WIN is making and aggressive push to shore up additional support for HR 3202. AGC members can help in this effort by utilizing the AGC Legislative Action Center or by visiting www.agc.org/water to contact Representatives.PRIVATE ACTIVITY BONDSHR 537, the Sustainable Water Infrastructure Investment Act of 2009 would increase the amount of private capital available to State and local governments.   AGC and other key allies have been working to increase support for this legislation which currently has 35 co-sponsors. Based on the water industry estimates,  at least $2 billion worth of private water investment slated for through Private Activirty Bonds or PAB's in 2010. If the PAB cap were lifted, estimates show that volume could increase to $5 billion annually as the market matures.  AGC members can help in this effort by utilizing the AGC Legislative Action Center or by visiting www.agc.org/water to contact Representatives.A broad industry coalition, of which AGC is a member, supporting the private activity bond cap removal has indicated its support for private activity bonds as a method of financing water and wastewater infrastructure. In a letter to Senator Durbin (D-IL), the Senate Majority Whip, this coalition urged support for HR 537 and asked for its inclusion in any Jobs package the democratic leadership puts together.  For additional information please contact Perry L. Fowler at fowlerp@agc.org

With the February 17, 2010 deadline looming for states to "use or lose" Recovery Act dollars, State SRF Authorities are working diligently to get EPA SRF stimulus funds under contract.  On December 24, 2009 the EPA issued a memorandum to Regional Water Management Directors detailing criteria under which EPA would de-obligate Recovery Act funds and how funds would be reallocated to states that have successfully managed to execute contracts under the February 17 statutory deadline.In order to qualify for "re-allocated" funds States must submit required information to the EPA with the guarantee that these dollars will be under contract by June 17, 2010. According to a representative from the Council of Infrastructure Financing Authorities (CIFA), a national organization representing SRF Authorities, most states are expected to meet the February deadline.Reports published by the U.S. EPA indicate that as of January 28, 2010 EPA assistance agreements have been executed for approximately 94.3% of the Clean Water State Revolving Fund (CWSRF) Recovery Act Dollars totaling $3.591 billion and  93.2% of the Drinking Water State Revolving Fund (DWSRF) totaling $1.678 billion.Click here for the EPA memorandum on reallocation of Recovery Act fundsClick here for DWSRF progress by State and EPA RegionClick here for CWSRF progress by State and EPA RegionFor additional information please contact Perry L. Fowler at fowlerp@agc.org

A central focus of concern for AGC members working  on and pursuing water infrastructure projects funded with Recovery Act dollars has been the imposition of broad-based and new "Buy American" requirements pertaining to iron, steel, and manufactured goods included in the Recovery Act. In a letter to the Transportation & Infrastructure Committee on November 4, 2009, AGC detailed continuing concerns about the impact of new expanded Buy American requirements on Recovery Act funded projects.  As the volume of projects soliciting and awarding bids ramps up in 2010 with Members with inquiries about, or experiencing problems associated with Buy American as it pertains to SRF funded projects are strongly encouraged to contact your local AGC Chapter or National staff. To date AGC has accounted for 25 project specific waivers that have been granted in addition to the 4 national waivers issued by the U.S. EPA.  The vast majority of waivers approved thus far have been granted for technologies being incorporated into water treatment facilities.  AGC members also need to keep in mind that there is a "di minimus" waiver that allows contractors to use non-U.S. manufactured items such as fittings, fasteners, valves, bolts and other essential items to the extent that such items constitute five percent or less of the total cost of materials and supplies incorporated into a project. Contractors should be aware that this waiver applies to all EPA SRF funded Recovery Act projects and should be utilized as necessary.  USDA followed suit late last year in issuing its own "di minimus" waiver for the Rural Utilities Service infrastructure programs. It has also recently added a new project-specific waiver to the Plymouth Village, NH Water & Sewer District for the purchase of a rotary sludge dewatering press. Click here for additional EPA information on Buy AmericanClick here for a spreadsheet detailing project specific waiversClick here for a complete list of USDA and EPA waivers

According to recent press releases from the USDA, the Rural Utilities Service which provides assistance to small and rural communities is making slow but steady progress getting Recovery Act Dollars processed and awarded to projects. According to USDA officials, approximately $3.7 billion in water infrastructure projects will be funded with USDA dollars in 2010. AGC members pursuing USDA funded projects should be aware that the USDA requires the use of Engineering Joint Contract Documents Committee (EJCDC) standard form contract documents.  AGC of America is a sponsoring organization of EJCDC along with the National Society of Professional Engineers, the American Society of Civil Engineers, and the American Council of Engineering Companies. For additional information about USDA Recovery Act activities click here.For a list of water projects being funded by USDA click here.AGC members can purchase EJCDC documents at a discounted rate by clicking here.For additional information please contact Perry L. Fowler at fowlerp@agc.org

On December 14, 2009, AGC of America submitted comments on an Advanced Notice of Proposed Rulemaking (ANPRM) on Pipeline Safety: Pipeline Damage Prevention Programs to the U.S. Department of Transportation's Pipeline and Hazardous Material Safety Administration (PHMSA).  The purpose of the ANPRM was to solicit comments in order to assess the adequacy of State's damage prevention enforcement regimes for oil, gas and other hazardous material pipelines.  PHMSA is currently reviewing industry comments and will issue a notice of a proposed rulemaking later in 2010. PHMSA will use this information to develop 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. To view AGC's comments on the ANPRM click here.

Three key stormwater developments are in the works that will affect contractors nationwide.  To ensure the construction industry's voice is heard, AGC of America has created a Stormwater Task Force (made up of 17 AGC Environmental Network members) to respond to current rulemaking efforts and enforcement initiatives aimed at restricting construction site runoff. Effluent Limitations Guidelines - First, the U. S. Environmental Protection Agency (EPA) has finalized first-time effluent limitations guidelines for the "construction and development industry."  The new rule is on EPA's Web site at http://www.epa.gov/waterscience/guide/construction. The so-called C&D ELG imposes nationwide monitoring requirements and enforceable numeric limits on the amount of sediment that can run off any construction site that disturbs 10 or more acres of land at any one time, despite AGC's years-long effort to explain the detrimental effect on the construction industry.  It also specifies the exact types of erosion and sediment controls that contractors must use, at a bare minimum, to control stormwater runoff on all construction sites that disturb one or more acres of land.  The rule takes effect in February 2010 and phases in over four years. The new ELG requirements will be incorporated into all federal and state individual and general National Pollutant Discharges Elimination System (NPDES) stormwater construction permits upon their next reissuance.AGC has a very established working relationship with the U.S. EPA's Office of Water and will be collaborating with senior staff from that office to hold joint educational programs on the new ELG rule in early March 2010.  EPA has also invited AGC to provide suggestions and recommendations as it works to draft a new federal construction general permit that will include the new ELG requirements. For more information, see the related article in this issue of AGC's Environmental Observer. Post-Construction Runoff Requirements - Second, EPA has committed to propose and take final action by November 2012 on a national rule that would include, at a minimum, new design or performance standards to control stormwater discharges from newly developed and redeveloped sites.  EPA recently announced that it will hold listening sessions in January 2010 to inform the public, and solicit feedback, on these upcoming rules that are currently in the works.  EPA also plans to collect information needed to support this rulemaking by distributing mandatory questionnaires to a "statistical sample" of commercial contractors and other entities that likely will be impacted by any new post-construction stormwater runoff requirements. EPA recently provided the construction industry with an opportunity to comment on its proposed "information collection request" (ICR) in an effort to reduce the paperwork and associated burden on companies that ultimately receive the mandatory questionnaire, in accordance with the Paperwork Reduction Act of 1995.  AGC submitted comments on the "industry questionnaire," stating that the proposed ICR is: premature and unauthorized by law, as it presumes regulatory authority that does not exist; overly burdensome and misdirected, as it misapprehends the role that contractor's play in the real estate development process; and ineffective in gathering data EPA believes it requires.  To read AGC's comment letter click here.  For more information, see the related article in this issue of AGC's Environmental Observer.Clean Water Act Enforcement Action Plan - Third, contractors everywhere can expect to see increased enforcement by EPA, including criminal and civil penalties for noncompliance, as well as more reporting and public oversight.EPA Administrator Lisa Jackson recently appeared before Congress 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. AGC plans to develop recommendations on potential ways to increase industry's stormwater permit compliance and make better use of EPA's enforcement efforts, in accordance with the newly released EPA Clean Water Act Enforcement Action Plan.  For more information, click here.For additional information, contact Leah Pilconis at pilconisl@agc.org

Click here for the latest Common Ground Alliance e-newsletter with articles on the upcoming CGA Annual Convention March 2-4, 2010 in San Diego, California.Did you know that April is National Safe Digging month?The 2010 National Safe Digging Month (NSDM) Toolkit has been posted to Call811.com. It can be accessed by clicking the right-hand button on the bottom of Call811.com that reads, "Logos and Ads." You can also access by clicking here.In this year's toolkit, you will find recruiting tools for grassroots partnerships, templated NSDM press materials, online advertising materials, NSDM support buttons, gubernatorial support documents, and more.Suggestions to get you started:Secure your governor's support for NSDM. Contact your governor's office to ask him/her to support NSDM by issuing a proclamation. Available tools include letters, tips for finding the best point of contact, ideas for getting the most out of a proclamation and a proclamation example.Plan a NSDM event. Review the "concept overview" document, in the media relations folder of the toolkit, to get ideas for NDSM and Arbor Day events you could implement. Also, you will find a timeline and how-to steps.Promote NSDM in your advertising. If you're planning on doing any National Safe Digging Month advertising this April, either in print or online, check out the Advertising/Online section.For additional information about getting involved with CGA please contact Perry L. Fowler at fowlerp@agc.org

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 ANPRM is to begin soliciting comments in order to assess the adequacy of State's damage prevention enforcement regimes for oil, gas and other hazardous material pipelines.  PHMSA will use this information to develop 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.Questions in the ANPRM are specifically geared at States to ascertain the adequacy  of their  damage prevention programs and enforcement  actions taken against excavators that damage underground facilities that convey hazardous materials, natural gas and petroleum. It is imperative that AGC Chapters and members consider the potential impact that federal enforcement of damage prevention law could have on your State's laws and consider how other stakeholder groups in your State will respond to this ANPRM such as utility commissions, one call notification centers, owners of oil and gas pipelines and owners of other underground facilities. This is an opportunity for AGC Chapters to reach out to stakeholders and ascertain the potential impact of federal enforcement in your individual states.AGC and its members are extremely supportive of state one-call programs, and we have been working with states to improve compliance, enforcement, and the effectiveness of one-call and damage prevention programs all over the country. The most successful efforts in this area have come from the joint efforts and joint obligation of the underground facility owners the locating industry, and contractors, which have joined together nationally to create the Common Ground Alliance (CGA). The CGA has been successful creating a cooperative and complementary environment for damage protection.AGC and CGA both support the premise that the best place for enforcement decisions to be made is in the states themselves. The federal government should encourage states to adopt policies and procedures that promote effective one-call programs and allow the states to operate and enforce them. AGC does not support a permanent federal role in enforcing state one-call laws-our position is that it is the state's job to enforce state laws. However in the circumstances that a State's damage prevention program is deemed inadequate federal enforcement should include the following provisions:Federal enforcement should occur only if the state is ignoring enforcement obligations;Federal enforcement should only be necessary until the state achieves a successful program in terms of enforcement; andMost importantly, to be effective, the approach to one-call enforcement must be balanced so that the responsibilities of the pipeline companies (such as locating and marking) are considered equally important as the responsibilities of the excavator (such as contacting one-call and digging with care). True one-call effectiveness is impossible without this recognition of shared responsibility.AGC of America will  submit comments on the ANPRM as will the Common Ground Alliance (CGA). However,  individual AGC Chapters are best prepared to respond to questions regarding current damage prevention programs and current enforcement in individual states. AGC of America will submit comments based on CGA Best Practices which have been developed over several years based on consensus of all damage prevention stakeholders and serves as the model for many state programs. AGC will also submit comments  specifically addressing questions about developing  an administrative process for Federal enforcement actions, potential establishment of Federal standards for excavators,  adjudication processes and existing requirements applicable to owners and operators of pipeline facilities.  Comments on the ANPRM are due on December 14, 2009 and AGC Chapters are encouraged to contact AGC with any questions, concerns or specific examples of what is working or not working in your state to incorporate into our comments.Click here to learn more about the ANPRM.For additional information please contact Perry L. Fowler at (702)837-5321 or fowlerp@agc.org

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.

Rulemaking has potential to impact excavation standards, including civil and criminal enforcement actions.