» Clean Water Current Archive

November 19, 2010

NACWA Law Seminar Focuses on Affordability Issues, Growing Number of Legal and Regulatory Challenges Facing Clean Water Utilities

NACWA’s 2010 Developments in Clean Water Law Seminar took place this week in Santa Fe, New Mexico, and featured discussion of the most important legal and regulatory challenges currently facing the municipal clean water community – with a special focus on affordability concerns.  The conference kicked off with an excellent keynote address from Robert Dreher, Principal Deputy Assistant Attorney General for the U.S Department of Justice’s (DOJ) Environment and Natural Resources Division.  Dreher discussed many of DOJ’s current environmental priorities under the Clean Water Act and shared how the current economic downturn has significantly influenced DOJ’s and EPA’s approach to affordability issues in enforcement actions and consent decrees.  Dreher noted that DOJ is much more aware of affordability constraints in consent decree negotiations with municipal clean water agencies.  Dreher also expressed significant support for NACWA’s efforts to ensure that federal government facilities pay local stormwater fees, indicating that DOJ continues to review the issue and acknowledging NACWA’s important advocacy role.

The affordability issue received significant attention at the Seminar, especially in the context of wet weather consent decrees.  One panel discussed how affordability and financial capability considerations have been incorporated in a number of recently negotiated wet weather decrees, noting the emergence of a more flexible approach by the federal government in recognition of the significant economic pressures currently facing municipalities.  This includes a willingness on the part of EPA and DOJ to accept consent decrees with compliance schedules of 25 years or more.  Another panel discussed efforts of utilities already under consent decrees to gain additional flexibility during the decree’s implementation timeframe.  The information from these two panels was well-received and stressed the importance of clean water utilities making strong affordability arguments to state and federal regulators.

Wet weather topics were also a key focus of the Seminar, including extensive discussion of combined sewer overflow (CSO), sanitary sewer overflow (SSO), blending, and stormwater issues.  EPA’s ongoing efforts to develop a new national post-construction stormwater rule received particular attention, as did the use of green infrastructure and other low impact development techniques to control wet weather flows. 

Seminar participants learned that a recent lawsuit filed by the Iowa League of Cities regarding EPA’s regulation of peak wet weather flow blending had been dismissed by the U.S Court of Appeals for the Eighth Circuit for lack of jurisdiction and final agency action.  The court’s action reinforces the need for EPA to address the issue of blending through a comprehensive SSO rule and NACWA remains ready to file a legal challenge to the blending issue at the appropriate time. 

The Seminar included the release, by NACWA’s Legal Affairs Committee, of the Association’s Wet Weather Consent Decree Implementation Survey at www.nacwa.org/cdimplementation.  More information on this survey will be distributed to the membership soon. 

Other topics addressed at the Seminar included the relationship between federal, state, and local governments under the Clean Water Act; legal developments in key regional waters, including the Chesapeake Bay, Great Lakes, and arid Southwest that could have national implications; a review of the most important Clean Water Act cases of the past year; and a discussion of current enforcement trends.  Presentations from the Seminar will be available on the NACWA website early next week.  NACWA thanks all of the participants and speakers that attended this year’s Law Seminar and helped make it such a success!

EPA Finalizes Florida Nutrient Criteria, NACWA Board Approves Legal Action

EPA, this week, issued its final numeric nutrient criteria for Florida's lakes and flowing waters over the objections of permittees in the state, many in Florida's Congressional delegation, and the state's newly elected Governor.  In an unexpected move, EPA announced that it was delaying the effective date of the criteria by 15 months to allow "cities, towns, businesses and other stakeholders as well as the State of Florida a full opportunity to review the standards and develop flexible strategies for implementation while Florida continues to recover from the recent economic crisis." 

NACWA raised concerns over the criteria this past April in extensive comments filed on EPA's proposal.  The Association is currently reviewing the final criteria, but does not anticipate that EPA has made significant changes to address many of the comments raised by NACWA and other stakeholders.  Now that the criteria are published in final form, a number of lawsuits challenging the criteria are expected to be filed within the coming weeks by agriculture, industry, and utility groups both within Florida, as well as nationally. 

On Monday, NACWA's Board approved funds from the Association's Targeted Action Fund (TAF) to participate as an amicus curiae, or friend of the court, in a challenge to the rule that is expected to be filed by the Florida Water Environment Association’s Utility Council.  NACWA believes it is critical for the Association to be involved in litigation over the final Florida nutrient criteria, both to support Association members that will be impacted by the new rules, and because of the potential national implications of EPA’s actions.  Once the challenge is filed, NACWA will petition the court to participate in the case as an amicus curiae.   If the court grants approval, NACWA would file a brief, most likely at the summary judgment phase of the case, supporting the position of its Florida members against the criteria but also presenting the perspective of the national municipal clean water community regarding this important issue.  This approach will allow the Florida Utility Council and its members to take the lead on what is essentially a challenge to state criteria, but also allow NACWA to advocate on behalf of its members by presenting an important national voice in a litigation matter that will have nationwide implications (see related story). 

NACWA Meets with Key EPA Office of Air Personnel on Sewage Sludge Incineration

NACWA met yesterday with Peter Tsirigotis, Director of EPA's Sector Policies & Programs Division, and his staff to discuss the Agency's proposed maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs).  NACWA scheduled the meeting to outline the significant errors that it has identified in the Agency's October 14 proposal.  Errors noted include major flaws in EPA's baseline emission estimates, its cost assumptions for evaluating landfilling as an option to incineration, and its treatment of mercury emissions and controls.  NACWA noted during the meeting that the Agency's cost assumptions for landfilling may be too low by a factor of four to five.  NACWA also noted that the rule overestimates the amount of emissions for most SSIs, thereby overstating the benefit of the proposed MACT standard.  Perhaps most importantly, NACWA also pointed out that EPA is proposing to require much more stringent reductions for mercury as a result of both dramatically overstated emissions estimates and underestimated control costs. 

Tsirigotis acknowledged that more work was needed and understood the implications of the errors NACWA had highlighted.  EPA, however, is facing an extremely aggressive schedule for finalizing the rule by its court-ordered deadline of January 14, 2011.  NACWA formally requested an extension of the comment period, scheduled to close on November 29, but does not anticipate that more time will be granted.  NACWA urged EPA to seek an extension to its deadline to both allow stakeholders more time to comment and allow EPA additional time to correct the errors in the proposal.  The Association is preparing extensive comments on the proposed standards and has developed a template letter for its member agencies to use in developing their own comments.  NACWA is also working to outline its legal options should the Association wish to challenge the final standards.  Contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for additional information or to receive a copy of the template letter.

NACWA Board Acts on Engagement in Florida Nutrient Criteria Litigation/Other Matters

NACWA’s Board of Directors met this week in Santa Fe, New Mexico for its first meeting of FY 2011.  Key among the items considered was the Association’s level of engagement in anticipated legislation regarding the Florida nutrient criteria released this week (see related story).   The Board was in agreement that involvement in litigation arising from the criteria is critical, both to support Association members that will be impacted, and because of the potential national implications of EPA’s actions.   As a result, the Board approved NACWA engagement in anticipated litigation as amicus curiae, supported with funding through the Association’s Targeted Action Fund (TAF).

In other action the Board also endorsed Engineered for Success . . . Creating a First Class Public Utility as the theme for the 2011 Summer Conference – July 19-22, 2011 at the Westin Chicago River North in Chicago, Illinois.  The conference will focus on emerging practices and concepts, as well as efforts underway at utilities, which serve to evaluate and enhance the sustainability of management practices and overall operation.  As an added feature, NACWA will offer significantly discounted registration to Gen X/Gen Y staff attending with their Member Agency representative – and feature multigenerational perspectives in presentations and panels.

The Board also approved NACWA participation in an eco-certification project led by the Oregon Association of Clean Water Agencies and collaboration with Food & Water Watch in a survey of clean water utilities regarding triclosan.

Association Leaders Convene for Strategic Discussions

The Fall Board Meeting was followed with a full day of strategic discussions between Board Members and standing committee leadership.  The leadership focused its sights on preparing the Association for the legislative, regulatory and judicial issues that are likely to receive consideration in the coming year – and considered longer-range ‘Mega Issues’ that will help define the organization’s future direction.  In addition to building on, and complementing, the Association’s Strategic Plan through their deliberations, the leaders also considered strategy with regard to key initiatives, including NACWA’s Money Matters campaign, in the context of the 112th Congress.