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The U.S. Environmental Protection Agency (EPA) released its final Integrated Municipal Stormwater and Wastewater Planning Approach Framework (Framework)  June 12.  The changes EPA made to the Framework, though generally minor, are positive overall and address many of the concerns NACWA raised in its comments  on the January 2012 draft and through the various stakeholder meetings on the Framework that took place across the country.  Key questions remain, however, on the extent to which the Framework will provide meaningful relief for more than a small number of clean water utilities but clearly the Framework marks an important step in realizing the goals of the Association’s Money Matters. . . Smarter Investment to Advance Clean Water™ campaign.

This Advocacy Alert provides a brief summary of the changes EPA has made in the final Framework and an update on current efforts among the clean water community to implement the Framework.

Summary of Changes to the Framework

In most cases the principles and elements in the draft were unchanged.  Though many stakeholders commented that EPA needed to provide more details in key areas of the Framework, the Agency sought to strike an appropriate balance between providing additional clarity while also maintaining as much flexibility as possible.

The more significant changes that EPA made are detailed below:

• EPA included an expanded scope and purpose statement at the front end of the Framework, underscoring that integrated planning is voluntary and that it is the responsibility of the municipality to develop an integrated plan.  The new introduction also includes explicit reference to the “municipality’s financial capability” when setting priorities and notes that the EPA Regions and Headquarters “will work with States when appropriate to determine the proper response to an integrated plan.”

• Section I – EPA added a new reference to a recently released handbook on sustainability, Planning for Sustainability: A Handbook for Water and Wastewater Utilities, noting that the elements of an integrated plan are complementary to the elements in the handbook.

• Section II –  New overarching principle on the use of innovative technologies. 

• Section II, Guiding Principles – EPA clarified that innovative technologies (e.g., green infrastructure) should be evaluated and incorporated, only where appropriate.  The draft Framework simply stated that such technologies should be incorporated.

• Section III, Defining Scope – A new statement was added that integrated plans can address source water protection efforts that protect surface water supplies, and/or nonpoint source control through trading or other mechanisms.

• Element 1 –  Problematic language on providing an assessment of existing non-compliance was revised to read “existing challenges in meeting CWA requirements”.

• Element 2 –  Problematic language on the identification of “deficiencies” with existing assets was removed.

• Element 2 –  Reference to overflows that do not reach waters of the U.S. was removed.

• Element 3 –  EPA significantly expanded this element on stakeholder involvement.  EPA now more explicitly lists when and how stakeholders should be included in the integrated planning process.  EPA also indicates that stakeholders should be included and updated throughout implementation of the plan and included in any assessment of the effectiveness of green infrastructure.

Element 4 is the key component of the integrated plan outlining the need for utilities to evaluate alternatives, assign priorities and develop an implementation schedule.  EPA’s changes to this section provide greater clarity on the role the municipality’s financial capability should play in priority setting.  However, EPA is still relying on its outdated 1997 guidance on affordability, and incorporates a specific reference to the document.

• Element 4 – A new bullet was added on relative priorities, including a discussion of impacts on financial capability

• Element 4 –  Significant new language was added on what to include in a financial capability assessment, including explicit reference to EPA’s 1997 CSO affordability guidance

EPA added a new element, Element 6, that more explicitly states that integrated plans can and should include a process for making changes to the plan (or the permit/enforcement order implementing the plan) should circumstances change in the future.

EPA made significant changes to the implementation and enforcement sections of the Framework.  Questions remain, however, on how integrated planning will work outside of an enforcement context.

Permits –

• EPA now more explicitly states its policy on the use of compliance schedules, removing reference to the Star-Kist case and its 2007 policy memorandum.  The language, however, is silent on how pre-July 1, 1977 water quality standards should be handled and does not specify a time limit on compliance schedules, which may provide greater flexibility where states have explicit regulations/policies on compliances schedules. 

• A new bullet was added recognizing the need for reopener provisions in permits to facilitate adaptive management.

Enforcement –

• EPA added “other state formal enforcement actions” to the list of enforcement tools, in addition to administrative orders and consent decrees.

• Several new bullets were added to the Enforcement section:

o EPA notes that enforcement will be used when there is a long-standing history of violations;
o Permitting and enforcement may be used in conjunction to ensure implementation of integrated plans;
o Sufficient flexibility should be provided in enforcement orders to allow for adaptive management; and
o Beneficial projects identified in an integrated plan that are not legally required may be included in a settlement agreement as a Supplemental Environmental Project.

In the cover memo transmitting the final Framework, EPA notes that it will, as they become available, provide practical examples of “how municipalities are implementing this approach.”

Efforts Underway to Implement the Framework

Since the draft Framework was released in January, EPA has been encouraging utilities to begin exploring integrated planning.  Communities across the country are evaluating how the Framework might help them, but currently the majority of these communities are already in enforcement proceedings with the government and are attempting to incorporate integrated planning elements into an eventual agreement.  The first such agreement, crafted by the City of Seattle with the assistance of EPA Region 10, is currently under review.  The agreement, if approved, would allow the City to develop an integrated plan with the ability to extend its combined sewer overflow (CSO) decree obligations beyond the current deadline if the approved plan contains stormwater controls that “will result in significant benefits to water quality beyond those that would be achieved by implementation of the approved CSO Controls Measures only.”

Though EPA has said in public meetings that communities with existing consent decrees can take advantage of integrated planning, the final Framework does not address this scenario and it remains unclear how this would work.

Also unclear is how the Framework will eventually work in a permitting context.  While state regulators and permit writers are aware of, and have expressed an interest in, the integrated planning initiative, major differences between wastewater and stormwater permitting practices are presenting roadblocks.  At least one NACWA member is currently looking at the Framework from outside the enforcement world, but is encountering resistance due to these permitting differences.

EPA remains very interested in getting a few examples of integrated planning in the permit context and is planning to hold monthly meetings with state regulators and regional personnel going forward to help with implementation issues.

NACWA Next Steps

NACWA’s Money Matters Task Force will meet in the coming weeks to discuss the final Framework and the Association’s related legislative activities.  With the final Framework now out, the Task Force will consider NACWA’s next steps regarding possible Congressional authorizations to provide funding for communities to pilot the Framework and the potential need for a broader legislative solution, providing flexibility beyond what the current Framework allows.  EPA has also been clear that the Framework is a “living document” and that it will be willing to consider changes to the document over time, especially as communities seek to implement an integrated planning approach.

NACWA is very interested in hearing from members who may be also looking at using the Framework to develop an integrated plan.  Please contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it  if you are considering using the Framework in either an enforcement or permitting context.