» Clean Water Current Archive

February 24, 2012

NACWA to Testify at House Water Resources Hearing

David Williams, NACWA President and Director of Wastewater for the East Bay Municipal Utility District (EBMUD) in Oakland, California, will testify next week on behalf of NACWA at the House Subcommittee on Water Resources & Environment hearing, A Review of Innovative Financing Approaches for Community Water Infrastructure Projects.  The hearing will focus on potential innovative financing tools, including the Subcommittee’s draft legislation to create a “Water Infrastructure Finance and Innovation Authority” modeled after a similar loan guaranty authority in the Federal Highway Program.  The draft legislation would also exempt water and sewage facilities from the volume cap on private activity bonds.

Testimony to Focus on Innovation, Utility of the Future
NACWA’s testimony states that it is time for a more far-reaching support of innovation and calls for Congress to embrace a “2020 Vision for the Water Resources Utility of the Future.”  Williams will recommend that, as utilities across the country engage in innovative programs – from energy conservation to resource recovery to water reuse – the limited federal funding available should be used to help utilities advance these innovations.  The testimony features the energy recovery program at EBMUD as an example of the important and innovative work being done at utilities across the country.  The hearing will take place on Tuesday, February 28 at 10:00 am Eastern and will be broadcast live by webcast on the Subcommittee’s website.  NACWA will provide its final written testimony and a summary of the hearing’s highlight via next week’s Clean Water Current.

NACWA Files Comments on EPA Draft Recreational Water Quality Criteria

NACWA expressed general support for EPA’s draft recreational water quality criteria in comments  filed this week on the Agency’s proposed revisions.  New scientific information led EPA to maintain the level of public health protection established in its 1986 criteria and to retain the current values.  The criteria serve as recommendations to states as they set water quality standards.  NACWA recognized early on that these revisions could have a profound impact on a number of Clean Water Act (CWA) programs and intervened in litigation (Natural Resources Defense Council (NRDC) v. EPA) to ensure that EPA had sufficient time to conduct the studies and collect the data necessary  to make sound scientific decisions.

EPA agreed to a very aggressive timetable in settling the litigation, which limited the scope of what the Agency could accomplish.  NACWA believes, however, that EPA’s decision to maintain the current criteria values is supported by science.  Though it expressed support for the criteria, the Association did raise several concerns, including the potential impact of rapid test method results on CWA programs and the need for implementation guidance.  EPA has already faced fierce criticism from the environmental activist community for failing to lower the criteria.  NACWA will continue to underscore, as it did in its comments, that the science cannot support more stringent criteria values.  EPA must finalize the criteria revisions by October.  NACWA will meet with the Agency in the coming months to track the efforts and provide input based on experience and expertise as  criteria implementation guidance is developed.

Court Issues Partial Victory in Florida Nutrients Case

A federal court in Florida issued a ruling  February 18 striking down key elements of EPA’s controversial numeric nutrient criteria for the state, while at the same time upholding the Agency’s decision to impose federal criteria in place of existing state standards. 

The court’s decision in Florida Wildlife Federation v. EPA to invalidate EPA’s nutrient criteria for flowing streams is an important victory for NACWA’s Florida utility members, which had challenged the Agency’s actions.  The ruling is also consistent with arguments made by NACWA in a brief  filed last June that contested the scientific basis for EPA’s nutrient limits.  The court’s decision found that EPA had established the “wrong target” in developing stream limits by focusing on criterion designed to identify any increase in nutrient level, instead of establishing the “right target” of criterion to identify only harmful increases in nutrients.  The court further found that because EPA failed to establish sufficient scientific reasoning for criteria based on any increase in nutrients as opposed to a harmful increase, the overall stream criteria were fatally flawed and could not survive judicial review.  The court appeared, however, to provide EPA with a fairly clear roadmap on how the Agency could fix these flaws, such as providing additional scientific rationale or adjusting the overall baseline criteria target. 

On a more disappointing note, the court dismissed all challenges to EPA’s federalization of Florida’s criteria, finding that EPA acted properly in replacing the existing state narrative approach with federal numeric criteria.  This decision runs counter to arguments made by NACWA and others that EPA violated the Clean Water Act and illegally usurped the state’s primary role in setting water quality standards.  NACWA disagrees with this portion of the court’s decision and is concerned about its potential national precedent in other states where EPA may seek to federalize criteria.  NACWA will closely monitor any potential developments regarding this issue, including any appeals that might be filed to this element of the court’s ruling. 

State Submits Revised Nutrient Criteria to EPA; NACWA Urges the Agency’s Swift Approval
In a related development, the Florida Department of Environmental Protection (FDEP) submitted  revised state nutrient criteria to EPA on February 20, requesting the Agency approve the state plan in place of the contested federal criteria.  EPA has given indications in recent months that it is likely to approve the new state criteria once finalized and withdraw the federal limits, including a November letter  where the Agency expressed tentative approval for the state’s draft rules.  NACWA has submitted a letter  to EPA Administrator Lisa Jackson urging her to expeditiously approve the new Florida rules in their entirety and return control over the criteria to the state level where it belongs.  Interested NACWA members are encouraged to forward similar letters to EPA, as well advocate for timely approval of the new Florida criteria.

CWA Jurisdiction Guidance Heads to OMB, NACWA to Weigh In

EPA and the U.S. Army Corps of Engineers (Corps) forwarded proposed final guidance on Clean Water Act (CWA) jurisdiction this week to the White House Office of Management & Budget (OMB) for interagency review.  NACWA will be meeting soon with OMB to discuss this development.  The guidance, now called the “Clean Water Protection Guidance,” follows the publication last year of draft guidance  by EPA and the Corps for public comment.  NACWA submitted comments  on the draft guidance in July, expressing general support for efforts to strengthen water quality protection as part of a holistic watershed approach but also calling for clarification on a number of key issues.  In particular, NACWA stated that any final guidance should preserve the existing regulatory exemption for waste treatment systems, and also should include explicit exemptions for municipal stormwater collection systems and groundwater from CWA jurisdictional coverage.  The draft guidance maintained the existing exemption for waste treatment systems and EPA has advised NACWA that stormwater collection systems and groundwater were intended to be exempted.  The Association wants to ensure this is the case in the final guidance.

EPA received nearly 250,000 comments, many of which encouraged the Agency to abandon the guidance effort and pursue a formal rulemaking process instead.  EPA announced in October that it was initiating a jurisdictional rulemaking in conjunction with the Corps, so this week’s decision to send final guidance to OMB is somewhat surprising.  NACWA plans to meet with OMB to ensure that the Association’s position on the guidance, including our previous comment document, is considered during the interagency review process.  We will keep the membership updated on developments.

NACWA Provides Input on Solid Waste Rulemaking, Confirms Regulatory Status of Biogas

NACWA commented  this week on EPA’s reconsideration of, and proposed revisions to, its March 21, 2011 final Non-Hazardous Secondary Materials (NHSM) rule (76 Fed. Reg. 80452; December 23, 2011).  While the Association disagrees with EPA’s finding that all sewage sludge is a solid waste when combusted, and has filed a judicial challenge of that decision, the rule remains in effect.  NACWA is optimistic that some of the rule’s provisions can be modified to reduce barriers to using biosolids as a renewable fuel.  The proposed revisions to the NHSM rule do not impact EPA’s determination that sewage sludge is a solid waste when burned, and will not benefit sewage sludge incinerators.  The additional clarification and proposed categorical non-waste determination process, however, could make it easier for utilities interested in burning dried solids or pellets as a fuel or fuel substitute.  Utilities who wish to dry and burn their own biosolids for energy recovery can do so through the self-implementing provisions of 40 CFR 241.3 by demonstrating that their biosolids have been sufficiently processed and can meet EPA’s legitimate fuel criteria.  The proposed revisions to 241.3 help to clarify elements of EPA’s legitimate fuel criteria and should make it easier to make this demonstration.  For utilities that want to provide their sludges to a third party for use as a fuel, a petition for a non-waste determination must be filed with the appropriate EPA Regional Administrator.  NACWA was encouraged to learn that a community in Michigan has already successfully gone through the petition process.  EPA’s formal non-waste determination letter  is posted on the EPA website.

Contained Gas Clarification and Status of Biogas from Anaerobic Digestion
In addition to commenting on the NHSM legitimate fuel provisions, NACWA’s letter supported EPA’s clarification that the Agency did not intend to change its previous statements and interpretations regarding contained gases.  Background materials associated with revisions to the commercial and industrial solid waste incinerator rules suggested that EPA was changing its interpretation of contained gas, which would have had major implications for the biogas generated during the anaerobic digestion process used to treat biosolids.  Specifically, EPA states in the December 23 proposed revisions, that “the burning of gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous material) does not involve treatment or other management of a solid waste (as defined in RCRA section 1004(27).”  Based on this clarification and discussions with EPA staff, NACWA understands that digester gas or biogas generated during the treatment of sewage sludge that is burned for energy recovery and any gaseous material that is flared as an air pollution control measure is not subject to the requirements for combustion or treatment of a solid waste.  NACWA also requested and received direct confirmation of this from EPA in a policy letter  received on February 15.

EPA Unveils New Green Infrastructure Website, Offers Assistance to Interested Communities

EPA this week debuted a new, redesigned website with information on green infrastructure issues, and also announced  the availability of direct assistance from EPA to facilitate the use of green infrastructure to protect water quality.  The new website repackages and expands upon EPA’s previous website to house EPA’s research on green infrastructure and to serve as a clearinghouse for information developed by governmental agencies, academia, non-profits, and the private sector.  The site contains information on green infrastructure publications, tools, and opportunities. 

As part of the redesign, EPA is offering technical assistance through EPA contract support to communities interested in pursuing green infrastructure that are located in watersheds/sewersheds with significant water quality degradation associated with urban stormwater.  The total EPA assistance available is approximately $950,000, and will be distributed among 10-20 projects.  The value of the assistance available to each project will be approximately $50,000 - $100,000.  Letters of interest must be sent to EPA by April 6, 2012 - additional information is available here .

NACWA’s Security & Emergency Preparedness Committee  Discusses Current State of Water Sector

NACWA’s Security & Emergency Preparedness Committee held a web-based meeting this week to discuss issues including cybersecurity, economic consequences of emergencies, and vulnerability assessment tool upgrades.  The Cyber Security Evaluation Tool (CSET) developed by the Department of Homeland Security (DHS) provides a thorough analysis of the security of cyber systems and networks.  The City of Richmond provided an overview of a recent workshop  held with DHS staff to use CSET at their wastewater and drinking water utility.  Utility staff gave CSET a very favorable review.  Richmond and the Los Angeles County Sanitation Districts also participated in a pilot test of the EPA Water Health & Economic Analysis Tool (WHEAT) and found that it gave valuable information about the economic consequences of emergencies at their utilities.  Curt Baranowski and John DeGour from EPA’s Water Security Division provided an update on the development of WHEAT and are planning a demonstration of the tool this spring.

The Committee also discussed the potential for upgrading vulnerability assessment tools, such as the NACWA-originated Vulnerability Self-Assessment Tool (VSAT).  The Committee will provide additional input to NACWA on the importance of upgraded tools to clean water agencies.  In addition, American Water provided a case study on the response of utilities in New Jersey to Hurricane Irene, providing many useful lessons in communication with customers and other agencies –  and advance preparations for natural disasters.  The Security & Emergency Preparedness Committee will receive a summary of the meeting by e-mail and will hold another web meeting this summer.

NACWA’s Web Seminar Series: Clean Water Act & Clean Air Act 101: It All Starts Here

NACWA is pleased to offer a two-part web seminar series on the critical federal statutes that impact your utility’s daily activity.  The first seminar, Clean Water Act 101, on March 8 from 2:00 – 3:30 pm Eastern, will cover Clean Water Act (CWA) statutory provisions and regulations related to the important topics impacting publicly owned treatment works (POTWs) today including water quality standards, effluent limitations, total maximum daily loads (TMDLs), and enforcement.  Conducted by two leading CWA attorneys, in an accessible and easy-to-understand presentation,this invaluable seminar will serve as an excellent introduction to, or refresher on, the CWA.

The second seminar, Clean Air Act 101, will take place on March 15 from 2:00 – 3:30 pm Eastern and  explore the key elements of the federal Clean Air Act (CAA) that impact clean water agencies and their facilities.  At a time when clean water agencies are increasingly being required to address air emissions, this informative seminar, led by two legal experts on CAA issues, will cover a variety of topics including new rules for sewage sludge incinerators (SSIs), the Greenhouse Gas Tailoring Rule, new Toxics Release Inventory reporting requirements for hydrogen sulfide, and new rules on boilers and engines.  All of these air regulations could impact POTWs, and this attendee-friendly web seminar will outline what every clean water utility should know.

Register Today!
Registration is $250 for the two-part series, or $150 for an individual seminar.  We invite you to gather your staff together in a group learning environment for these exceptional, high-value seminars.

NACWA Database Upgrade Scheduled

The Association’s database will be upgraded this weekend in order to better serve our members.  E-commerce services, including conference and web seminar registrations will be suspended on Saturday, February 25, and possibly Sunday, February 26.  Full database capability will be available no later than Monday, February 27.  We apologize for any inconvenience.