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December 18, 2015

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NACWA Scores Key Victories in Congressional Spending Deal

2015-12-18T omnibusCongressional negotiators, this week, reached agreement on a final Fiscal Year (FY) 2016 appropriations package pdf button that includes a number of major advocacy victories for NACWA and its members. Most significantly, Senate appropriators backed off demands that dischargers to the Great Lakes eliminate combined sewer overflows (CSO) and the use of blending during wet weather events. The CSO elimination policy rider was inserted earlier this year in a proposed Senate Appropriations Committee spending package for EPA at the request of Senator Mark Kirk (R-IL).

NACWA pursued every available advocacy avenue on this issue, leading a coalition of Association members, drinking water interests, municipal groups, and state organizations to oppose the language. In the end, the Association helped forge a compromise between Sen. Kirk and other key Great Lakes Senators keen on avoiding a costly new mandate. The compromise agreement:

  • Establishes a consistent standard for reporting CSOs to the Great Lakes;
  • Authorizes the Great Lakes Restoration Initiative (GLRI) for one year with $300 million in funding;
  • Replaces proposed cuts to the Clean Water State Revolving Fund (CWSRF), with $1.393 billion being appropriated; and
  • Includes language for reporting CSO discharges to the Great Lakes, consistent with current CSO Policy and other existing reporting requirements under the Clean Water Act,

NACWA is pleased that common sense clean water policy prevailed in Congress and grateful to all of the Association members that sent letters, made phone calls, and engaged in other advocacy to help influence this outcome. Additional details on the bill are included in Advocacy Alert 15-20 key, and a NACWA press release. Members with questions about the legislation are encouraged to contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA Releases Draft Phase II Stormwater Rule

2015-12-18T stormwater.ruleEPA released a pre-publication version pdf button key of the proposed Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule today which would modify the Agency’s stormwater regulations that apply to Phase II MS4 communities covered under general permits. The rule preamble walks describes three options to amend the Phase II regulations (additional detail below), each of which would address a judicial court order that the regulations provide adequate public notice, the opportunity to request a hearing, and adequate permit authority review that the permit coverage meets the maximum extent practicable (MEP) standard.

The options presented in the rule are very similar to what EPA discussed with NACWA members over the summer. The preamble of the proposal also highlights EPA’s stakeholder engagement with small MS4s, environmental groups and organizations like NACWA over the last eight months. The proposal was signed by the EPA Administrator on December 17.

The proposal will likely be published in the Federal Register before the end of the month, at which point the 75-day public comment period would begin. NACWA will provide a more thorough analysis of the rule proposal in the coming weeks, but key highlights of the proposal are as follows.

  • The Rule would revise the small MS4 regulations to ensure that the permitting authority determines the adequacy of best management practices (BMPs) and other requirements to meet MEP, while providing public notice and the opportunity to request a public hearing on the requirements for each MS4.
  • The Rule proposal discusses three regulatory options, with the third option being a hybrid of the first two:
    • The first option (called the “Traditional General Permit Approach”) requires the permitting authority to establish within the permit all requirements that MS4s must meet (to reduce pollutants to the MEP, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA), which would be subject to public notice and comment and an opportunity to request a hearing as part of the initial issuance of the general permit.
    • The second option (called the “Procedural Approach”) would add procedural requirements to the existing rule structure for the MS4 to inform the permitting authority in its Notice of Intent (NOI) of the BMPs it will implement through its stormwater management plan (SWMP) to meet the requirements of the regulations. Under the Procedural Approach, the permitting authority reviews each NOI and incorporates specific conditions that are considered by the permitting authority to be necessary to comply with the requirement to reduce pollutants to the MEP, to protect water quality, and to satisfy the water quality requirements of the CWA. Prior to authorizing an MS4’s discharge, the permitting authority must provide the public with an opportunity to comment on the proposed authorization, including the additional permit terms that the MS4 will be required to meet and to request a hearing, if applicable. EPA also released a strikeout version pdf button key showing how the 40 CFR 122 sections would be changed under the first option.
    • The third option (called the “State Choice Approach”) would enable the permitting authority, typically a state, to choose between the Traditional General Permit and Procedural Approaches, or to implement a combination of these approaches in issuing and authorizing coverage under a general permit.

NACWA will inform the membership when the rule is formally published in the Federal Register. The Association also will submit formal feedback on the proposal to EPA during the comment period and invites comments, questions, or concerns about the rule be sent to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Cybersecurity Act Hitches a Ride on Omnibus

2015-12-18T cyber.security Legislation establishing a legal framework critical to encourage industry to voluntarily share cybersecurity information with the federal government was included as part of the year-end omnibus spending package – but excluded a key provision opposed by NACWA and other water sector organizations. The legislation, the Cybersecurity Information Sharing Act (CISA), requires the Director of National Intelligence and the Departments of Homeland Security (DHS), Defense, and Justice to develop procedures to share cybersecurity threat information with private entities, nonfederal government agencies, state, tribal, and local governments, the public, and entities under threats. Liability protections are provided to entities that voluntarily share and receive cyber threat indicators and defensive measures with other entities or the government.

Last month, NACWA joined over 40 other associations on a letterpdf button opposing Section 407 of the Senate-proposed package which would have required the DHS, sector specific agencies (SSAs), and other regulatory agencies to assess the cybersecurity incident reporting by critical infrastructure entities and to issue a recommendation to Congress on whether to require a mandatory regulatory regime for reporting cyber intrusions to the government. The associations argued that this runs counter to the otherwise voluntary nature of CISA and the reporting of cyber incidents that is already done by critical infrastructure entities and recommended that Section 407 be removed from CISA. NACWA is pleased that Congress followed this recommendation and excluded the provision in the final package.

NACWA Comments on EPA Nutrient Study

2015-12-18T nutrient.commentsNACWA filed commentspdf button this week on an EPA study examining nutrient removal approaches at wastewater treatment plants. The draft document, Case Studies on Implementing Low-Cost Modifications to Improve Nutrient Reductions at Wastewater Treatment Plants, offers several case studies where wastewater treatment plants have implemented what EPA considers ‘low-cost’ modifications to remove nutrients. The Association’s commentspdf button raised concerns that EPA has overlooked important policy and technical considerations in the document, most notably the potential loss of treatment capacity when these types of modifications are used. NACWA’s letter echoed its 2009 comments (when the Natural Resources Defense Council (NRDC) petitioned EPA to modify secondary treatment to include nutrients) and recommended that EPA include additional discussion in the document on the treatment capacity issue. The Association also acknowledge other limitations of the report, including the fact that most of the treatment plants were very small.

Congress Asks for IRS Ruling GI on Private Property

2015-12-18T gi Thirty four Members of Congress sent a letterpdf button key to the Department of Treasury and the Internal Revenue Service (IRS) last week asking them to definitively rule that rebates for green infrastructure (GI) installed on private property, designed to reduce stormwater runoff should not be taxable for federal purposes. The benefit of these GI installations, though on private property, actually goes to the public utility and is not a net benefit to the property owner themselves.

The recent Congressional letter comes out of an effort by a coalition of environmental and advocacy groups, including NACWA, to ensure that utilities using these private property GI rebate programs can continue to do so without the chilling effect that taxation may cause. There have been previous IRS revenue rulings addressing utility work on private property, including a 2012 rulingpdf button key on private lateral rehabilitation programs in Hampton Roads, Virginia that was specific to the Hampton Roads Sanitation District. NACWA will continue to be engaged in this important effort and will report to the membership on any developments.

Paris Climate Accord Reached

2015-12-18A parisNegotiators reached agreement late last week in Paris on a new international climate change accord, paving the way for individual nations to pursue a wide variety of options to achieve overall goals. The agreement sets a target of no more than a 2 degrees Celsius rise in global temperatures, with an understanding that a limitation to no more than 1.5 degrees Celsius is preferable. Although many of the specific actions the United States will take are still to be determined, it is likely that future U.S. regulations related to climate change will provide additional opportunities for the municipal clean water community to innovate and participate in climate and resiliency efforts. NACWA was present in Paris for meetings taking place in conjunction with the climate change summit and looks forward to continued work with its members on climate issues.

New Infrastructure Investment Center Announced

2015-12-18A financeSecretary Sally Jewell announced this week the establishment of a Natural Resource Investment Center (NRIC) within the Department of Interior. The Center is designed to spur investment in water conservation and infrastructure in the West through public-private partnerships via mitigation banking, increased water exchanges, and advanced wastewater treatment, reuse and desalination.

The NRIC is part of the Administration’s Build America Investment Initiative, which calls on federal agencies to find new ways to increase investment in 21st-century infrastructure projects. This announcement came during a White House roundtable on water innovation and on the heels of a similar program, the Water Infrastructure & Resilience Finance Center (WIRFC), established at EPA earlier this year. NACWA’s Finance Workgroup has been using their expertise to support the WIRFC and will endeavor to do so for the NRIC, as well.

Web Seminar Addresses Groundwater Jurisdiction and Unpermitted Pollutant Contributors

2015-12-18A legal.webinarNACWA hosted a Hot Topics in Clean Water Law Web Seminar this week on two very important topics for the clean water community. Shawn Hagerty, a partner with Best Best & Krieger, and Samuel Brown, a senior attorney with Hunton & Williams, discussed legal developments related to Regulating Discharges to Groundwater via the Conduit Theory. Their presentations focused on case law addressing this theory, particularly a recent decision from a Hawaii federal district court, which has been appealed to the Ninth Circuit. Although the case deals with injection wells permitted under the Safe Drinking Water Act, the court’s decision has far reaching implications, potentially requiring a National Pollutant Discharge Elimination System (NPDES) permit for any source that may release pollutants to groundwater that is hydrologically connected to navigable waters. The appeal will be briefed in late winter/early spring of 2016. Due to the potential impacts on the Clean Water sector, NACWA is closely tracking this litigation and is considering active involvement.

Christopher “Smitty” Smith, an Environmental Attorney with Squire Patton Boggs, presented Encouraging Collaboration (and Cost Sharing) with Unpermitted and Disinterested Pollutant Contributors. Smith offered strategies for municipal stormwater co-permittees to bring unpermitted and disinterested upstream pollutant contributors to the table to engage in meaningful discussions. He also addressed the availability of judicial relief to provide an equitable allocation of responsibility for upstream contributions.

A recording of the webinar as well as presentation slides are available on NACWA’s website. Join us for the next Legal Hot Topics Web Seminar on March 16, 2015 from 2:00 – 3:00 pm Eastern. Please send suggestions on topics to cover in future web seminars to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Small & Medium Utility Workgroup Begins Deliberations

2015-12-18A small.utility NACWA’s new Small & Medium Utility Workgroup had its kick-off call on Wednesday, December 16. Led by Co-Chairs Susan Holmes, NACWA Board Member and Chairwoman of the Central Davis Sewer District, UT, and Todd Danielson, Chief Utilities Executive at Avon Lake Regional Water, OH, the group had a full and robust discussion regarding common issues facing utilities of their size. The Workgroup also reviewed and refined an initial Scope of Workpdf button and identified a productive path forward.

The next call for this group will be the week of January 25. NACWA looks forward to working with these utilities to identify opportunities to enrich the Association’s advocacy work and the benefits it provides to them and their communities. Utilities interested in learning more about the Workgroup’s efforts or in participating may contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Interested in Reuse?

2015-12-18A water.reuseNACWA’s Water Reuse Workgroup will be convening via conference call next week on December 22, at 1:30 Eastern to discuss recent developments out of the Department of Interior, ongoing drought bill negotiations and the current state of reuse funding. If you would like to join the Workgroup or the call next week, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NAS Releases Report on Stormwater and Graywater

2015-12-18A graywater The National Academy of Sciences released a new report, Using Graywater and Stormwater to Enhance Local Water Supplies: An Assessment of Risks, Costs and Benefits, on December 16. This report examines the beneficial onsite reuse of stormwater and graywater in urban environments, as communities across the country face increasing water resource challenges.

The National Academy of Sciences released a new report, Using Graywater and Stormwater to Enhance Local Water Supplies: An Assessment of Risks, Costs and Benefits, on December 16. This report examines the beneficial onsite reuse of stormwater and graywater in urban environments, as communities across the country face increasing water resource challenges.

  • Respond to the NACWA Index Survey by December 31, 2015. The NACWA Index is a critical advocacy tool and valuable information source for benchmarking and in developing rate proposals. If you have not received your utility-specific survey form via email, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
  • Register for NACWA's 2016 Winter Conference , Back to the Basics . . . Will Compliance Concerns Derail Efforts to Innovate?, February 21 – 24, 2016 at the Westin San Diego in San Diego, CA.

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tab-best-of-blog2015-12-18 engage web

Get Engaged in the New Year!

What are your resolutions for 2016? Why not make getting more involved in our online community, Engage™, one of them. Engage™ is the perfect place to ask explore advocacy priorities and pose questions of clean water colleagues. This week, discussions include:

  • Funding for SSO programs
  • Sewer Bill for Beer Brewing Facilities
  • Requirements for trash receptacles in restroom stalls

If you would like to learn more about Engage™ or have questions on this unique online community, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

The Clean Water Current will be on hiatus for the holidays.
Look for our next edition on January 8, 2016.
Best wishes for a wonderful holiday season and a Happy New Year!!

 

 

 

 

 

 
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