Skip to main content

Key Republican members of a House subcommittee this month indicated support for continuing the water sector’s existing exemption from the Department of Homeland Security’s Chemical Security Anti-Terrorism Standards (CFATS) program. Subcommittee Democrats, meanwhile, were silent on the topic, even as they outlined a number of other changes they would like to see to the program.

The CFATS discussion came during a September 11 House Environment and Climate Change Subcommittee hearing on H.R. 3256, which would reauthorize the program for five years beyond its currently scheduled expiration in April 2020. The bill, which was drafted and approved by the House Homeland Security Committee in June, would not only extend the program but would also make reforms that could open the door to allowing DHS to regulate drinking water and wastewater facilities in the future.

H.R. 3256 would require DHS to arrange for an independent assessment of the national and homeland security implications of excluding water and other exempt facilities from CFATS oversight. The study, which would be due to Congress after 16 months, would also explore the implications for exempt facilities and the communities where they are located. Simultaneously, the department would have to assess the “feasibility and desirability” of establishing a process through which DHS could grant a waiver from CFATS regulations to facilities that are subject to other federal regulatory security requirements. Taken together, the reports generated by these provisions could lay the groundwork for ending the water sector’s statutory CFATS exemption, while offering the possibility that DHS could still offer water facilities individual waivers from the program.

AMWA supports maintaining the water sector exemption and has raised concerns with congressional staff about these provisions. The association’s views were reflected in comments made during the hearing by subcommittee ranking member John Shimkus (R-Ill.), who said CFATS was “designed to avoid overlap with other federal programs,” and that studies about expanding the program could jeopardize that. Rep. Shimkus’ concerns were echoed by Rep. Greg Walden (R-Ore.), the top Republican on the full Energy and Commerce Committee, while subcommittee Democrats did not suggest that expending CFATS is one of their priorities.

Congress created CFATS in 2007 to allow DHS to regulate chemical facilities that handle and store hazardous chemicals, including gaseous chlorine. Congress exempted from CFATS oversight several classes of facilities, including drinking water and wastewater systems, because they fall under the regulation of other federal agencies. While members of the congressional homeland security committees have often sought to expand CFATS coverage, committees that hold oversight of EPA have resisted this. The Energy and Commerce Committee is expected to have an opportunity to make amendments to H.R. 3256 before it goes before the full House.