» Clean Water Current Archive

February 10, 2012

Senator Sherrod Brown Introduces Money Matters/Affordability Bill

On Thursday, Senator Sherrod Brown (D-OH) introduced the Clean Water Affordability Act of 2012, a bill to authorize $1.8 billion over five years for sewer overflow control grants.  The bill also requires the U.S. Environmental Protection Agency (EPA) to address community affordability issues with respect to increasingly costly Clean Water Act requirements.  NACWA is pleased to see that the bill contains many of the Association’s proposals, including provisions to guide an EPA-led integrated permitting process, in line with NACWA’s Money Matters…Smarter Investment for Clean Water ™ initiative.  NACWA will provide members with a detailed Advocacy Alert on this bill next week.  The legislation will also be a focus of discussion at NACWA’s Winter Conference held next week in Los Angeles.

NACWA sent Senator Brown a letter  of support for his bill, noting that this legislation represents a vital step toward helping communities address water infrastructure and affordability challenges in a sound and viable manner.  Ken Kirk, NACWA’s Executive Director, along with Tony Parrott, Executive Director of the Metropolitan Sewer District of Greater Cincinnati and NACWA Board Member, were both invited to participate as resources on a press call with Senator Brown to mark the bill’s introduction.  On the call, Brown expressed his concern for the municipalities throughout Ohio that are struggling to pay for necessary water infrastructure upgrades, including the costly correction of combined sewer overflows.  Senator Brown said his bill would provide some relief to municipalities in Ohio and around the country facing expensive upgrades, all while protecting ratepayers, public health, and local economies.

Senator Brown is now looking for Republican co-sponsors to help propel his bill through the Senate.  This is likely to be difficult however, as the $1.8 billion grant program has no funding offset.  Still, he remains optimistic, and NACWA will continue to pursue bipartisan support for integrated permitting legislation.

NACWA Participates in Second EPA Workshop on Integrated Planning

NACWA public agency members participated in the second of EPA’s workshops on its new integrated planning initiative this week in New York City.  Discussions were similar to the January 31 Atlanta workshop, with representatives from national and local stakeholder groups participating in a facilitated dialogue on the elements of EPA’s framework.  Again, concerns were expressed with the scope of the effort, especially the fact that drinking water issues are not currently on the table.  Utility representatives also emphasized the importance of approaching this effort as a partnership among federal, state and local officials, rather than as a tool to address noncompliance.  Representatives from the environmental NGO community expressed more skepticism about the effort than in previous meetings, noting that many utilities they deal with still have not met core Clean Water Act requirements and therefore should not be allowed to benefit from any additional flexibility provided by EPA’s effort.  The issue of sanitary sewer overflows (SSOs) was raised again by an observer at the meeting who noted that SSOs often are a small contributor to water quality impacts, but that EPA’s current policy toward zero overflows results in disproportionately high spending.  In response, EPA’s enforcement official stressed that EPA would not be changing any of its existing policies on SSOs and peak flows through this effort.  Issues with the framework clearly remain that NACWA hopes will be addressed before the final version is released – tentatively planned for the end of March.  NACWA believes that while the framework, as currently envisioned, is a step in the right direction and may provide a path forward for some utilities – more comprehensive change is necessary, including potential legislative options.

NACWA Meets with New York Utility Executives
In a related development, NACWA also met this week with top New York clean water utility executives at a conference sponsored by the New York Water Environment Association.  The meeting provided an opportunity for NACWA to share up-to-date information on a number of the Association’s most important advocacy activities, including participation in EPA’s ongoing integrated planning process and NACWA’s efforts on sewage sludge incineration (SSI) issues.   Part of the discussion examined how NACWA’s advocacy on a number of key national issues can support ongoing work by clean water utilities in New York, as well as how the Association can further complement important clean water advocacy efforts at the state and local level.  The New York utilities expressed interest in continued close collaboration with NACWA.

EPA to Deny Reconsideration of SSI Rule, NACWA Legal Efforts to Intensify

NACWA learned late last week that EPA is planning to officially deny the Association’s administrative petition for reconsideration of the Agency’s sewage sludge incinerator (SSI) rule.  An official denial is expected to be published in the Federal Register within the next few weeks.  EPA also announced that it will deny a separate petition for reconsideration of the SSI rule that was filed by the Sierra Club.  While NACWA is disappointed, this final decision by the Agency is not entirely surprising given EPA’s indication, in August, that it would likely deny the Association’s request.  One positive outcome from this development is that because denial will occur before the start of briefing in the Association’s parallel legal challenge, NACWA will now be able to incorporate the Agency’s action on the reconsideration.  Briefing was scheduled to begin at the end of this month, although will now be temporarily delayed.  NACWA anticipates that briefing in the legal challenge will probably be pushed back by three or four months.  The Association is now in the process now of negotiating a new litigation schedule with the other parties in the case.

NACWA Submits Brief in Stormwater Fee Litigation

NACWA filed a brief  Feb. 9 with a federal court in Washington State supporting a municipal legal challenge against the U.S. Department of Justice (DOJ) over unpaid stormwater charges from a federal government facility.  The NACWA brief, filed on behalf of Association member the City of Vancouver, supports a Motion for Summary Judgment  filed by Vancouver on Feb. 7 and argues that the recent stormwater fee amendment (S. 3481 ), enacted in early 2011 to clarify federal responsibility for payment of municipal stormwater service charges, also applies to fees assessed prior to 2011.

NACWA’s brief emphasizes that S. 3481 simply clarified an existing obligation for federal government agencies, as opposed to creating a new obligation, and thus requires payment of past due amounts assessed prior to the bill’s passage.  In its brief, the Association focuses on the legislative history surrounding S. 3481, as well as highlights existing case law, to bolster the argument that Congress intended for the bill to mandate payment of past-due stormwater charges from federal properties.  Additionally, the brief provides an important national perspective on the impact the ruling in the case could have on municipal stormwater agencies elsewhere in the country – from both a practical and policy standpoint.  NACWA was joined on the brief by the National Association of Flood & Stormwater Management Agencies (NAFSMA) and the American Public Works Association (APWA).

NACWA played a critical role in securing passage of S. 3481 and is seeking to defend that hard-fought legislative victory through this litigation.  The case stems from an attempt by the City of Vancouver to collect approximately $100,000 in past due stormwater fees earlier this year from the Bonneville Power Administration (BPA), a federal government agency with facilities in Vancouver’s stormwater service area.   BPA refused payment of the fees and in July 2011 DOJ, acting on behalf of BPA, filed a lawsuit against Vancouver and the City of Renton requesting a declaratory judgment that S. 3481 does not apply to past due stormwater amounts.  The cities have requested oral argument on their Motion for Summary Judgment in March.  NACWA will keep the membership updated on developments.

NACWA Discusses Top Issues, Utility Sustainability with EPA

NACWA met with EPA’s Assistant Administrator for Water and key EPA officials, along with representatives of other municipal water and wastewater organizations, this week as a part of a regular dialogue with the Agency.  A top issue was the status of EPA’s post-construction stormwater rule.  EPA continues to struggle with its evaluation of the costs and benefits of the rule and is currently renegotiating a new deadline for proposing the rule.  The Agency does not expect to have a final timetable for when the rule will be published until March, but indicated that the December 2012/January 2013 timeframe is likely for the proposal.  EPA also indicated that it would make a final decision on whether to revise its controversial memo on stormwater and TMDLs from November 2010.  The Agency reported that it will make a decision on whether to revise the memo, withdraw it, or leave it unchanged in the next month or so.

During the meeting EPA also provided an update on its integrated planning initiative.  Following the workshops that are now underway, the Agency will consider any changes needed and work to finalize the framework by the end of March.  EPA is encouraging interested utilities to consider moving forward to be ‘early adopters’ of the framework, but indicated that it was not looking for official pilot communities to work with directly.  Instead, the Agency is interested in developing a list of case studies – communities that are already doing integrated planning – to provide examples.  During the meeting, officials from the drinking water community expressed strong concerns that moving forward with this initiative without including drinking water considerations would actually harm public health by committing funding for large wastewater and stormwater projects at the expense of needed drinking water investments.

EPA discussed a new handbook on utility sustainability, Planning for Sustainability: A Handbook for Water and Wastewater Utilities .  NACWA members were involved in drafting the document and the Association provided comments on an earlier draft.  The Agency also provided an overview of the recent National Research Council report on sustainability, noting what impacts it might have on EPA and the water sector.  EPA is interested in discussing next steps with the utility community based on the recommendations from the report.  NACWA will be following up with the Agency on this issue in the coming weeks.

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NACWA WISHES ALL OF ITS MEMBERS TRAVELING TO OUR WINTER CONFERENCE A SAFE TRIP.
WE LOOK FORWARD TO SEEING YOU NEXT WEEK IN LOS ANGELES, TO DISCUSS THE LATEST DEVELOPMENTS IN WET WEATHER AND COLLECTION SYSTEM MANAGEMENT WHILE ADVANCING OUR ADVOCACY EFFORTS THROUGH PRODUCTIVE COMMITTEE DISCUSSIONS.