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 July 10, 2015

NACWA Helps Secure Key Litigation Victory for Watershed Approach

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NACWA and its municipal partners helped secure a major litigation victory pdf button this week when a federal appellate court upheld the final total maximum daily load (TMDL) for the Chesapeake Bay, including its use of a watershed approach requiring nutrient reductions from nonpoint sources. The ruling from the U.S. Court of Appeals for the Third Circuit in American Farm Bureau, et al. v. EPA dismissed challenges to the final TMDL from agricultural and nonpoint dischargers and affirmed a lower court ruling upholding the TMDL.

Most notably, the decision rejected arguments from the agricultural challengers that TMDLs cannot include specific allocations for nonpoint sources. The court acknowledged that the language on TMDLs in the Clean Water Act is ambiguous, but concluded that including nonpoint allocations was both reasonable and lawful. In doing so, the court also recognized the important role of a watershed approach in equitably addressing water quality impairment concerns.

More analysis of the decision is available in Advocacy Alert 15-13, and NACWA also distributed a press release highlighting the importance of the ruling. NACWA played a key role in the case as an intervenor to help defend pdf button the watershed approach. The Association is very pleased with the decision and believes it is an important legal win for the clean water community.

NACWA Continues to Push Back on Sewer Overflow Prohibition in Proposed Senate FY16 EPA Budget Bill

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NACWA continued its outreach efforts on Capitol Hill this week to urge Senators to oppose Section 428 of the Senate Appropriations Committee Fiscal Year (FY) 2016 spending package pdf button for EPA. Section 428 would prohibit wastewater agencies that discharge directly or indirectly to the Great Lakes from discharging overflows of any kind, including combined sewer overflows (CSOs) in compliance with the 1994 CSO Policy, and prohibit the discharge of blended effluent even if it meets National Pollutant Discharge Elimination System (NPDES) permit standards. The provision was inserted at the request of Senator Mark Kirk (R-IL) who has sponsored this legislation in the past and faces a tough reelection campaign next year.

NACWA met with key staff for Senators representing Great Lakes States, including staff for Ohio Senators Rob Portman (R) and Sherrod Brown (D) and Wisconsin Senator Ron Johnson (R). NACWA discussed the implications of the provision on communities in their States and encouraged them to help strip the language from a final spending package or alternatively replace it with provisions that would be more beneficial to the Great Lakes. In addition to NACWA’s aggressive advocacy on the Hill and a letter pdf button that the Association sent to the Senate Appropriations Committee protesting this provision, we are also implementing a targeted media campaign. We are closely monitoring the news outlets in the Great Lakes region. For example, earlier this week NACWA submitted a Letter to the Editor pdf button to the Chicago Tribune in response to Senator Kirk’s Op-Ed touting the legislation. NACWA members that discharge to the Great Lakes are urged to write to their Senators protesting this language and supporting NACWA’s effort to see this language stripped from the final spending package. For more information, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA Phase II Rulemaking Activity Discussed at First Meeting of National Stormwater Advocacy Network

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Stormwater associations and organizations from around the country met on June 30 via conference call for the first meeting of the National Stormwater Advocacy Network (NSAN) . NACWA formed the NSAN based on feedback from these groups that was not a sufficiently coordinated effort to provide feedback on, and ultimately influence, national policy-making on stormwater issues. The NSAN will provide peer-to-peer interaction and will build on the work that State and regional clean water groups have started over the last two years as part of an ongoing collaboration on important national and regional issues. The NSAN will allow for broad engagement by the public sector on advocacy issues and will collaborate closely with NACWA's Stormwater Management Committee to help shape policies in Congress, EPA, at other state, regional and federal agencies and in the Nation’s courtrooms.

Five EPA staff joined the NSAN’s first call to brief participants on regulatory modifications EPA is considering in response to an ongoing legal challenge to the Phase II program. Environmental NGOs are claiming that the Agency has failed to comply with a 2003 decision that mandated EPA strengthen its small municipal separate storm sewer systems (MS4s) rules. EPA is now considering options to address concerns regarding the need for permitting agency review of notices of intent (NOIs) submitted by small Phase II MS4s as well as providing sufficient opportunity for public review and comment (see case description). Minutes pdf button from the call, which contain EPA’s slides, reflect the excellent feedback that state and regional leaders provided on behalf of their Phase II members, and the NSAN is considering submitting more formal comments as this process continues. Please contact Brenna Mannion with any questions or comments on the Phase II remand or how it may affect NACWA members.

NACWA Provides Additional Data to EPA for Dental Amalgam Rule

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NACWA provided EPA with influent and effluent mercury data from 41 wastewater treatment facilities, in response to the Agency’s request for more detailed information related to the Association’s February 20 comments pdf button on the proposed Dental Amalgam Separator Rule pdf button. In its comments, NACWA argued that current mercury removal efficiencies are much higher than the 90 percent efficiency from the 1982 POTW Study, which was the value EPA used in calculating the benefits of the proposed rule. NACWA provided summary data from its Mercury & Dental Amalgam Separator Survey to support this argument, and EPA asked for individual sample concentrations rather than a summary. Utilities that used the sensitive Method 1631 to measure mercury concentrations in both influent and effluent provided this information to NACWA. Although NACWA is still analyzing the mercury data, it appears that the data will support NACWA’s argument that the benefits of the proposed rule have been significantly overestimated.

Federal Appeals Court Upholds Chicago Consent Decree

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On July 9, the U.S. Court of Appeals for the Seventh Circuit issued a strong legal victory for NACWA member agency the Metropolitan Water Reclamation District of Greater Chicago (MWRD) and for the clean water community at large. The court upheld the wet weather consent decree as negotiated by the parties in United States, et al. and Alliance for the Great Lakes, et al. v. Metropolitan Water Reclamation District of Greater Chicago over the objections of environmental activist groups. The activist groups intervened in the case to challenge the consent decree, arguing that the combined sewer overflow controls were inadequate to achieve water quality compliance and green infrastructure projects were insufficient. A lower court dismissed pdf button the activists’ claims, leading to this appeal.

The court’s order will serve as strong legal precedent for clean water agencies elsewhere in the country seeking to have consent decrees approved over objections from citizen groups. The Seventh Circuit’s analysis of the role of intervenors in a consent decree challenge when the government is “diligently prosecuting” the lawsuit at hand is of particular importance:

Private intervenors are supposed to “supplement rather than to supplant” public litigation….Why would anyone settle with the EPA or a state, if the settlement did not buy peace? The District made costly promises, but if the Alliance is right then it got nothing in return, for the Alliance can carry on with the suit. And if the Alliance also settled, then another person could intervene to demand still more relief.

The court went on to acknowledge the importance of adaptive management and flexibility in consent decrees long-term wet weather plans given the complexities of the projects and inability to predict the future:

[T]he District is so large, and the locations of potential outfalls so numerous, that it’s just not practical to try to cover all details in one document. The EPA anticipates working out details as time passes …and if the District does not cooperate the court can afford supplemental relief.

As for what happens in 2029 or later if untreated discharges continue at an unacceptable rate, the next steps ought to depend on what’s not then working well. If the EPA (or a court) could be sure in 2014 what the exact nature of the problem (if any) would be in 2029, then it would be sensible to start planning and building the remedy today; but if either there won’t be a serious problem in 2029, or the problem is something not now foreseen, then relying on a 2014 decree for the solution would be foolish. Yogi Berra observed that it is hard to make predictions, especially about the future. State and federal agencies are entitled to rely more on experience and less on predictions.

NACWA submitted an amicus brief pdf button in the case in December 2014 supporting MWRD’s position and arguing in favor of the consent decree as negotiated by the parties, although the court ultimately did not accept the brief due to procedural issues. NACWA has long supported the position that activist groups should not be able to alter consent decrees negotiated between utilities and federal and state regulators, and is very pleased with this week’s decision.

Senate Transportation Reauthorization Bill Allows Tax-Exempt Financing for WIFIA Projects

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The Senate Environment and Public Works (EPW) Committee’s reauthorization package pdf button for highway projects contains a provision that would enable projects receiving funding through the Water Infrastructure Financing and Innovation Act (WIFIA) program to use tax-exempt municipal bond financing as a match for the federal dollars received. Key water sector organizations, including NACWA, have been supportive of this key change.

WIFIA is a new loan program that was enacted last Congress through the Water Resources and Reform Development Act (WRRDA) pdf button. It is designed to provide direct loans and loan guarantees to water and wastewater projects of regional significance and viewed as a supplement to financing otherwise provided through the State Revolving Fund programs. NACWA supported its passage and worked with a coalition of water organizations to remove the prohibition on the use of tax-exempt financing as a program match. This week, NACWA joined with fellow water sector organizations in sending a letter pdf button to EPW leadership thanking them for including the WIFIA provision in the transportation bill. For more information, please contact Patricia Sinicropi, NACWA Senior Legislative Director at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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Ohio Places New Burdens on POTWs in Response to Toledo Water Crisis

Guest blog from Erica M. Spitzig an Attorney at NACWA Member, Graydon Head & Ritchey LLP in Cincinnati, on new legislation in Ohio that attempts to respond to the toxic algal blooms that shut down water service to approximately 500,000 customers in Toledo last summer. This new requirement will impact over 500 POTWs across the state, but how will it impact Lake Erie and the rest of the Great Lakes? Read on to find out more.

 

 

 
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