» Clean Water Current Archive

March 18, 2011

GAO Letter Signals Federal Reversal on Nonpayment of Stormwater Fees

The U.S. Government Accountability Office (GAO) sent a letter this week to the District of Columbia Department of the Environment (DDOE) stating that as a result of the recent enactment of legislation requiring federal facilities to pay local stormwater fees (S. 3481), GAO was reversing its prior refusal to pay the city’s stormwater charge and will now pay the fee without further legislative action.  This decision, the first of its kind, marks an extremely positive development regarding the payment of stormwater fees by federal government agencies and would not have been possible without NACWA’s critical advocacy efforts on behalf of the nation’s clean water utilities to secure passage in December of S. 3481.

The GAO letter included a legal analysis of the legislation indicating that the agency believes it can pay DC’s stormwater fee out its annual operating account for salaries and expenses, in a manner similar to how it pays other utility bills, and does not need a separate, special appropriation from Congress to pay the stormwater charge.  The GAO legal opinion specifically examined the appropriations language included in S. 3481 and determined that the language “can reasonably be interpreted, not as conditioning the waiver of sovereign immunity for stormwater assessments on a specific appropriation for such purpose, but rather as emphasizing that like other ‘reasonable service charges’ covered by the waiver in section 313(a), federal agencies are to pay stormwater assessments from their existing appropriations available for operational expenses.”  NACWA is very pleased with this legal opinion and believes that GAO’s analysis, including its review of the legislative record accompanying the bill, is completely consistent with Congress’ intent in passing the legislation and correctly addresses the appropriations language that was included.

Although the GAO letter and opinion specifically address payment of the Washington, DC stormwater fee, NACWA believes GAO’s legal analysis can be applied nationwide.  If stormwater utilities find that any of their local federal facilities refuse to pay stormwater fees by claiming that they need a special appropriation for stormwater service, NACWA encourages the use of this GAO legal opinion to rebut that argument and clarify that federal agencies can and should pay the fees out of their normal operating budgets.

The U.S. Department of Justice (DOJ) is currently working on a national guidance document for all federal agencies on implementation of the stormwater fee legislation.  NACWA has shared the GAO letter and legal opinion with DOJ and encouraged the Department to incorporate the GAO legal approach in the final guidance document.   It is unclear at this point when the DOJ guidance will be released, but NACWA will share it with the membership as soon as it is available.

EPA Releases Nutrient Framework Memo, NACWA Finalizes Nutrient Summit Issue Paper

EPA sent its Regional Administrators a memorandum this week outlining the Agency’s commitment to work in partnership with the states on accelerating the reduction of nutrient loadings in the nation’s waters.  The memo, which places “new emphasis on working with states to achieve near-term reductions in nutrient loadings”, outlines the recommended elements of a framework for state management of nutrient pollution.  In the memo transmitting the two-page framework, Acting Assistant Administrator for Water Nancy Stoner notes that while EPA has a “number of regulatory tools at its disposal”, the Agency’s resources can “best be employed by catalyzing and supporting action by states that want to protect their waters” from nitrogen and phosphorus pollution.  Consistent with NACWA’s advocacy on this issue, the memo also states that a one-size-fits-all solution “is neither desirable nor necessary” and that states need room to innovate and respond to local water quality needs.  While the memo does not directly address the Natural Resource Defense Council’s (NRDC) 2007 petition to modify secondary treatment to include nutrient removal, EPA’s statement on the inappropriateness of a one-size-fits-all approach is the Agency’s clearest articulation to date of its position on the validity of the approach laid out in the NRDC petition.

While the new memo suggests that states have the lead on nutrient issues, EPA was careful to highlight in several places throughout the document that it wants to support those states that are interested and willing to make progress.  Left unsaid is what type of action EPA may consider if it believes a state is not sufficiently motivated or working to address nutrient issues.  Also of note, EPA refers repeatedly to nitrogen and phosphorus pollution, not nutrients, and specifically mentions the need for numeric nutrient criteria for nitrogen and phosphorus.  NACWA and other stakeholders have continued to raise issues about the need for numeric values specifically for nitrogen and phosphorus, preferring instead to focus on response parameters such as dissolved oxygen.  The memo, however, reaffirms EPA’s belief that nitrogen and phosphorus are ‘pollutants’ and must therefore be specifically addressed in any numeric criteria.  EPA does, however, suggest it may be willing to discuss applying those criteria in new ways based on information including biological response data, noting that numeric criteria “informed by scientific understanding of the relationship between nutrient loadings and water quality impairment” will be necessary.

Framework Seeks to Prioritize Watersheds, Make Progress
EPA’s framework describes a process for developing watershed-scale plans for targeting adoption of agricultural practices and “other appropriate loading reduction measures”, including point source controls, in areas where they are most needed, all while the states continue their efforts to develop numeric nutrient criteria.  The framework contemplates a new process by which states would prioritize watersheds statewide based on the need for nutrient reductions and then set load reduction goals for those priority watersheds.  In terms of control mechanisms, EPA indicates that states should ensure the effectiveness of point source permits and in partnership with federal and state agriculture partners, NGOs, and other stakeholders, look for opportunities to target nonpoint source controls where they are needed most.  All of this is intended to make progress on nutrient reductions in advance of finalizing numeric nutrient criteria.  In return for making progress in the near-term using this watershed approach, EPA indicates that the timetable for state numeric criteria development “can be a flexible one”, noting in the framework that state plans should contain interim milestones for the criteria development process and that a “reasonable timetable would include developing numeric N [nitrogen] and P [phosphorus] criteria for at least one class of waters within the state…within 3-5 years”.

NACWA Releases Issue Paper on Outcomes from Nutrient Summit
Also this week, NACWA released its Nutrient Summit Outcomes and Issue Paper detailing the discussions at NACWA’s Nutrient Summit last fall.  NACWA drafted the Issue Paper to use in initiating dialogues with key stakeholders on how current approaches to developing and implementing numeric nutrient criteria are hampering efforts to address this priority water quality challenge.  The concepts from the Summit and Issue Paper have already led to important discussions with state regulators and EPA.  The paper underscores the important role that states must play in taking the lead on the nutrient issue and outlines some areas where the clean water community may be willing to work with state regulators to make progress despite uncertainty in the science behind any numeric nutrient criteria.  However, the paper diverges from EPA’s new framework on the issue of criteria development, noting that EPA’s insistence on developing nitrogen and phosphorus criteria for all waters is one of the main reasons why more progress has not been made.  The Issue Paper outlines a series of guiding principles on the key elements of a workable approach to addressing nutrients and provides some recommendations on making additional progress.

Building on preliminary discussions with the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), NACWA plans to use the Issue Paper to further this dialogue with state regulators and explore ways the clean water community can better engage with them in a collaborative fashion.  The paper will also help to continue ongoing discussions with EPA on the need for new approaches.  NACWA will next brief ASIWPCA’s Nutrient Committee on the Issue Paper in mid-April and will be having additional discussions with stakeholders on the Issue Paper and EPA’s new framework in the coming weeks.

NACWA Moves Forward With Challenge to SSI Regulations

NACWA’s Executive Committee this week endorsed the Association moving forward with plans to challenge two recent EPA regulations that could negatively impact utilities operating sewage sludge incinerators (SSIs).  As a first step in this important effort, NACWA forwarded a letter and information packet to all SSI utilities in the country inviting them to join the Association’s newly formed Sewage Sludge Incineration Advocacy Coalition (SSIAC).  NACWA, through the support of the SSIAC, is now moving ahead with both a legal and administrative challenge to EPA’s final SSI rule establishing new emission limits for SSIs, as well as a legal challenge to the Agency’s new definition of solid waste rule classifying biosolids that are incinerated as a non-hazardous solid waste.  As NACWA has previously reported, EPA did make some improvements and clarifications in the final versions of both the SSI and solid waste rules, but the two rules continue to have such significant flaws that a legal challenge is necessary to protect the interests of SSI utilities.  Additional information on the rules and NACWA’s response is available in the February 25 and March 11 Clean Water Currents.

All utilities that have permitted SSI units will receive the letter and information packet in the mail within the next few days outlining the Association’s planned advocacy efforts on this important issue and inviting them to support the efforts by participating in the SSIAC.  The SSIAC will provide critical financial and technical support to the Association, allowing it to represent the interests of all impacted utilities in challenging the final SSI regulations.  NACWA SSI members are requested to review the letter and information, and confirm their plans to participate in the SSIAC by April 1.  Anyone with questions about the SSIAC or NACWA’s planned advocacy efforts may contact Nathan Gardner-Andrews ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Chris Hornback ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).  We will keep the membership updated on developments as the work of the SSIAC proceeds.

NACWA Participates in EPA Regulatory Review Stakeholder Meeting

NACWA participated in a public listening session held by EPA to gather input on how the Agency should conduct its review of regulations to comply with President Obama’s January 18, 2011 Executive Order (EO) 13563, “Improving Regulation and Regulatory Review.”  EO 13563 directs each federal agency to consider “how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome.”  EPA began the meeting with a general session to discuss the overall regulatory review plan, the criteria for identifying and prioritizing regulations for review, and the timing of the review.  In response to stakeholder comments during this session, EPA extended the deadline for commenting on how its review should be conducted to Monday, April 4.

A session specific to Clean Water Act regulations was also held as part of the listening session, and Jim Hanlon, Director of the Office of Wastewater Management in EPA’s Office of Water, was present at this session.  Topics discussed included the need to implement controls on nonpoint sources of nutrients, the problems of regulating through guidance rather than the normal rulemaking process, and better considerations of costs versus benefits in regulations.

NACWA will submit comments by the new April 4 deadline, and will use this opportunity to raise issues about regulatory prioritization and affordability concerns that are the focus of the Association Money Matters™ campaign.  The Association encourages all of its members to submit comments, as well.  More information about EO 13563 and EPA’s response to it are available on EPA’s website.  The Agency will release its plan by late May, including its initial list of regulations to review.

NACWA Reminds Members to Complete Survey on Treatment of Wastewater from Hydraulic Fracking

On March 10th NACWA sent an Advocacy Alert (AA-07) to its public agency members urging them to complete a short online survey regarding the treatment of wastewater from natural gas hydraulic fracturing, or fracking, operations.  The practice has recently come under increased scrutiny due to a series of articles appearing in the New York Times and growing pressure from activist groups concerned about the water quality impacts from these activities.  NACWA is sending a friendly reminder to its public agency members to complete this survey before March 31, 2011.  The survey can be found on NACWA’s website.  Please note, responses to the survey will remain confidential.  Your participation will assist the Association in determining whether and how we can be of assistance to our members on this issue.  Please contact NACWA’s Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions regarding the survey.

NACWA Accepting Applications for Peak Performance & Excellence in Management Awards as April 8 Deadline Nears

Time is running out to apply for recognition through NACWA’s 2010 Peak Performance Awards and 2011 Excellence in Management Recognition Program.  Don’t miss your opportunity to apply to get recognized!  NACWA’s Peak Performance Awards recognize member agency facilities for outstanding compliance with National Pollutant Discharge Elimination System (NPDES) permit limits in three categories:  Platinum, Gold and Silver.  NACWA’s Excellence in Management Recognition Program honors member agencies that have implemented and sustained, for a continuous three-year period, successful programs that address a range of management challenges faced by public clean water utilities in today’s competitive environment.  The deadline for submissions to both the Peak Performance Awards and Excellence in Management Recognition Program is April 8, 2011.  Visit NACWA’s website for more information on the Peak Performance Awards program and Excellence in Management Recognition Program, and apply today!

Registration Open for National Environmental Policy Forum and Pretreatment & Pollution Prevention Workshop

Registration is now open for both NACWA’s May 8-11 National Environmental Policy Forum and its May 18-20 Pretreatment & Pollution Prevention Workshop.  We invite you to look for e-flyers and visit our website www.nacwa.org for additional information.  We look forward to seeing you at these important conferences.