» Clean Water Current Archive

November 4, 2011

NACWA Briefed on Recreational Water Quality Criteria Revisions

NACWA met this week with officials from EPA’s Office of Science and Technology in the Office of Water to discuss the latest developments on the Agency’s recreational water quality criteria, last updated in 1986.  While supportive of the general approach EPA has proposed for revising the criteria – leaving the criteria values largely unchanged and maintaining the use of culture-based methods for implementing Clean Water Act (CWA) programs (see Advocacy Alert 11-17) – NACWA expressed concern over EPA’s plans to wait until after the criteria are finalized in October 2012 to develop implementation guidance.  During the meeting EPA confirmed that it would begin working on implementation issues early next year and that it would publish short, targeted documents addressing several key implementation issues shortly before or just after the criteria are finalized, rather than attempt to develop and publish a single implementation guidance document, which would demand a much longer timeframe.

One of the top implementation concerns for NACWA has been the potential use of test results from the new rapid test method (quantitative polymerase chain reaction or qPCR) for CWA purposes – namely the listing of waters on the impaired waters list, triggering the development of a total maximum daily load (TMDL).  NACWA has raised significant concerns about the reliability of the qPCR method for use in any application other than limited beach monitoring.  While EPA has indicated that it will recommend the use of the older, culture-based test methods for all CWA purposes, EPA will publish criteria values based on both the culture and qPCR methods.  NACWA has highlighted in previous communications that where states choose to include criteria based on qPCR in their water quality standards, beach management decisions using only qPCR data may lead to an impaired water determination with real CWA implications.  EPA has committed to looking into this issue further and indicated that use of qPCR data will be one of the implementation issues it addresses first.  The draft criteria will be released in early 2012 and EPA will provide 60 days for input and comment.

NACWA Builds Congressional Support for Reconsideration of Incinerator Rule

NACWA met with several key offices in both the House and Senate to garner their support for the reconsideration of EPA's regulations of sewage sludge incinerators (SSIs).  Specifically, the Association is working to ensure a bipartisan letter with an equal number of Democrats and Republicans in the Senate is sent soon to EPA Administrator Lisa Jackson, urging her to reconsider the ruling and regulate SSIs as they historically have been — under Section 112 rather than 129 of the Clean Air Act.  The Association is also working on a broader follow-up letter from the U.S. House of Representatives building on a recent letter  from Reps. Bill Pascrell (D-N.J.) and Steven LaTourette (R-Ohio) urging Administrator to reconsider the SSI rule and find an administrative fix.

Meanwhile, staff for Senator Cardin (D-Md.), Chairman of the Senate Water and Wildlife Subcommittee, held a meeting with EPA late last week to discuss the SSI rule and explore the reconsideration option.  NACWA is pleased by the bipartisan support for its letter-writing campaign as well as Senator Cardin's office’s personal involvement on this vital issue. NACWA will keep the membership informed as developments occur.

Court Places Litigation Over EPA’s Solid Waste Rule on Hold

In a related matter, a federal appeals court announced this week that it is putting legal challenges to EPA’s non-hazardous solid waste (NHSM) rule, also known as the solid waste definition rule, on hold pending planned revisions to the regulation that the Agency is expected to finalize next spring.  As NACWA has previously reported, EPA announced in mid-October that is was planning to make revisions to the NHSM rule.   As a result of this decision, the U.S. Court of Appeals in Washington, DC, decided to place the current legal challenges to the rule, including one filed by NACWA, in abeyance pending the Agency’s final publication of revisions to the rule, which are due in April 2012.  This means that NACWA’s litigation over the rule, which provides an important regulatory foundation for EPA’s final sewage sludge incineration (SSI) rule, will be placed on hold for the time being.  However, this development in the NHSM rule challenge will not impact the schedule for NACWA’s separate, parallel challenge to the SSI rule, which will continue to advance on its own timeline.  A copy of the court’s order can be found on NACWA’s Litigation Tracking webpage, and we will keep the membership updated on developments.

EPA Poised to Release More Stringent Ammonia Criteria

NACWA met this week with EPA on the forthcoming release of the Agency’s final revised water quality criteria for ammonia.  EPA has been working on these revisions to its 1999 ammonia criteria for nearly eight years and the new recommended criteria are currently undergoing senior management review.  NACWA has closely scrutinized the quality of the data used in the criteria calculation and has provided comments several times on the issue since 2004.

EPA believes it has addressed the underlying issues associated with the freshwater mussel data it is using and has added new toxicity data for freshwater snails from a 2010 US Geological Survey study.  EPA initially proposed in 2009 to develop bifurcated criteria, with the criteria level dependent on whether certain freshwater mussels were present in the water.  EPA has abandoned that approach and now plans to recommend a single value for each effect level, acute and chronic.  States will be able to modify the criteria values it adopts into its water quality standards to better reflect the species and uses it is trying to protect but NACWA had advocated strongly for the bifurcated criteria approach at the federal level.

The current (1999) criteria (at pH 8 and 25°C; in mg/L of total ammonia nitrogen) are: 5.6 acute and 1.2 chronic.  The new criteria values expected to be released in early 2012 are: 3.2 acute and 0.28 chronic.  These levels are slightly less stringent then the ‘mussels present’ criteria in the 2009 proposal, but significantly more stringent than the criteria that would have applied under the 2009 proposal where freshwater mussels were not present.  EPA has already acknowledged that such a reduction in the criteria will have significant impacts on the clean water community.  EPA intends to release the criteria along with a guidance containing information on the existing tools available to state regulators to assist in implementation, including variances, use attainability analyses, compliances schedules and dilution allowances.  NACWA has already stressed with senior EPA managers that this revision will lead to major impacts for the clean water community and the Association will continue to raise the importance of implementation flexibility.

The Senate Takes a Pass on Infrastructure Bank; NACWA Continues to Push for Clean Water Funding

This week, the Senate voted down a measure to consider a $60 billion package that would have included about $50 billion in transportation funding, a $10 billion infrastructure bank,  and an amendment developed by Sens. Ben Cardin (D-Md.) and James Inhofe (R-Okla.) to provide $2 billion in additional funding to the state revolving funds. The bill, the Rebuild America Jobs Act (S. 1769), failed to garner the 60 votes needed to pass the motion to proceed, receiving 51 votes in the Senate.  Though the bill demonstrates the controversial nature of any spending measures in this Congress, the amendment language does demonstrate the viability of including funding for clean water infrastructure as jobs bills continue to receive Congressional attention.

In addition to the activity on Capitol Hill, NACWA and the Water Environment Federation (WEF)   met with Marcia McNutt, Director of the U.S. Geological Survey (USGS) and other key USGS staff to urge continued and consistent funding for the National Water Quality Assessment (NAWQA) program.  McNutt was receptive to the importance of the NAWQA program and expressed her interest in maintaining solid funding levels.  NACWA and WEF made the case that for the program to continue to provide consistent and reliable monitoring data, especially data related to nutrient loads and respective pollution sources, it is critically important that funding levels be enhanced and, minimally, sustained.  In a follow-up email after our meeting, McNutt noted that “I appreciate the support you give to the USGS and the value you place in our efforts. I look forward to working with you to make sure we can rebuild a robust water quality monitoring program.”  The Association will continue to update members on this effort as it proceeds.

NACWA Joins Municipal Brief in Support of EPA’s Water Transfer Rule

NACWA signed on to a municipal brief  submitted Nov. 3 in a litigation matter over EPA’s water transfers rule, defending the rule and supporting the exemption of transfers of natural, untreated water from the National Pollutant Discharge Elimination System (NPDES) permitting framework.  NACWA joined with New York City on the brief, which was filed with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.  The brief sides with EPA in asking the court to uphold the challenged water transfers rule and argues that Congress never intended for transfers of untreated water to be subject to the NPDES permitting system and urging the court to find that  EPA’s rule exempting such transfers from discharge permits is a proper interpretation of the Clean Water Act.  Additionally, the brief indicates that there are more appropriate regulatory mechanisms under federal and state law for addressing diversions of untreated water than through NPDES permits.  The arguments presented in the brief are consistent with the positions NACWA has taken in two prior litigation matters regarding the water transfers issue and represent a continuation of NACWA’s involvement in those cases.  The brief is also consistent with NACWA’s previous support of the water transfers rule in 2008.  Other municipal organizations joining on the brief include the National League of Cities, the New York Conference of Mayors, the American Water Works Association, and the Association of Metropolitan Water Agencies.

The 2012 Water & Wastewater Leadership Center – DEADLINE EXTENDED!

The deadline for the Water & Wastewater Leadership Center has been extended to December 16!  The Water & Wastewater Leadership Center provides a unique opportunity for utility directors and managers, both public and private, to participate in a twelve-day, executive education program developed specifically for water and wastewater professionals.  Held at the Kenan-Flagler Business School at the University of North Carolina—Chapel Hill, February 19 - March 2, 2012, the program curriculum equips students with enhanced leadership and management skills and the knowledge to develop strategic goals that deliver measurable results.  Visit the Leadership Center page of the NACWA website to view the 2012 brochure and application, or contact Kelly Brocato at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/833-1449 if you would like more detailed information or to be in contact with recent alumna.  Space is limited and applicants are encouraged to apply early.

Discover the “Who’s Who” of NACWA’s Board of Directors

NACWA is in the process of implementing enhancements to its website – www.nacwa.org.  We invite you to view our updated NACWA Board of Directors listing.  The improved listings include photos and bios of all of our Board Members.  A detailed list of the Board and their contact information can be downloaded after logging in to the Member Pipeline.  NACWA will be rolling out additional improvements to the website in the coming weeks – so be sure to stay tuned!