» Clean Water Current Archive

November 16, 2012

NACWA Submits Brief in “Flow TMDL” Litigation

NACWA filed a brief Nov. 16 in federal litigation over EPA’s use of total maximum daily loads (TMDLs) for flow in municipal stormwater permits, arguing that the Agency’s regulation of flow as a surrogate for pollutants under the Clean Water Act is improper.  NACWA’s brief in Virginia Department of Transportation v. EPA echoes arguments the Association has made previously about the inappropriate use by the Agency of “flow TMDLs” for municipal stormwater, leading to flow limits in municipal separate storm sewer system (MS4) permits.  In particular, the NACWA brief reiterates concerns over EPA’s controversial November 2010 memo, which suggested that states should use flow as a pollutant surrogate to establish numeric effluent limits in MS4 permits.  The November 2010 memo is included in the current litigation by the Plaintiffs in their complaint.  NACWA’s brief seeks to provide a national perspective on the significant flaws in the document, as well as EPA’s overall procedural approach in developing flow TMDLs.

The litigation was brought by the Commonwealth of Virginia and NACWA member Fairfax County, Virginia.  The state and municipal plaintiffs argue that EPA’s use of flow as a pollutant surrogate in the TMDL exceeds the Agency’s statutory authority under both the CWA and the Administrative Procedure Act.  The complaint also alleges series technical flaws in the TMDL.

NACWA was joined on the brief by the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA). Additional information on the case will be posted on the Litigation Tracking page of NACWA’s website early next week.

Senator Merkley Introduces Clean Water Financing Legislation

On Tuesday, Senator Jeff Merkley (D-Ore.) introduced The Water Infrastructure Finance & Innovation Authority (WIFIA) Act (S. 3626), a bill to establish a new EPA-run water and wastewater infrastructure financing program to offer low-interest loans in amounts greater than $20 million to regionally significant water infrastructure projects.  Merkley’s bill would also encourage utilities to consider green infrastructure approaches and would require projects receiving WIFIA funds to abide by Davis-Bacon prevailing wage requirements and “Buy American” provisions for iron, steel and manufactured products used in the construction of projects receiving WIFIA funds.  Finally, the bill would also ensure that WIFIA operates independent of the existing SRF programs.

NACWA is pleased to see the introduction of an additional water infrastructure financing tool but remains adamant that WIFIA not come at the expense of the State Revolving Fund program.  NACWA has met with Senator Merkley’s office to express this sentiment and will continue to educate members of Congress about the value the WIFIA can offer in supplementing the SRF program.  NACWA and the Water Infrastructure Network (WIN) are also continuing to ensure support for a long-term dedicated funding stream.  NACWA will notify members of any additional developments on this legislation.

Senate Holds Hearing on the Water Resources Development Act

On Thursday, the Senate Environment & Public Works (EPW) Committee held a hearing to discuss a draft Water Resources Development Act (WRDA) bill that would authorize domestic water resources projects administered primarily by the U.S. Army Corps of Engineers.  Witnesses at the hearing included Stephen A. Curtis from the American Society of Civil Engineers (ASCE); Terry Sullivan from The Nature Conservancy; Amy W. Larson, Esq., President of the National Waterways Conference, Inc.; and Warren Dusty Williams, President of the National Association of Flood & Storm Management Agencies (NAFSMA).

Committee members from both sides of the aisle spoke about the need for these water and flood protection projects, especially in the wake of Hurricane Sandy.  In her opening remarks, Senator Boxer (D-Calif.), Chair of the Senate EPW Committee, added a new title to the bill that would better prepare the country for similar weather-related disasters.  Senators Frank Lautenberg (D-N.J.) and Tom Carper (D-Del.) also spoke specifically about the devastation caused in their own states and discussed the critical need for this legislation.

WIN Weighs in on Inclusion of WIFIA

The WRDA bill would also establish a Water Infrastructure Finance & Innovation Authority (WIFIA) based on Senator Jeff Merkley’s (D-Ore.) WIFIA bill, introduced two days prior.  The Water Infrastructure Network (WIN), of which NACWA is a member, sent the EPW Committee a letter in support of the WRDA bill and WIFIA provisions, citing the huge backlog of water infrastructure projects as a reason why WIFIA would be a useful additional tool.  The letter sought to ensure that the bill would hold the State Revolving Funds (SRFs) harmless and reiterated support for long-term dedicated funding for clean water infrastructure as WIN’s objective.  NACWA will keep members informed should WRDA advance in the Senate.

NACWA’s Board, Committee Leaders Meet in Seattle

NACWA’s Board of Directors and Standing Committee leadership met in Seattle on November 13 for a Fall Strategic Leadership Retreat.  At the Retreat the Association’s leaders revisited and discussed key components of NACWA’s Strategic Plan – which was last updated in 2010.  The dynamic nature of the issues and challenges facing the clean water community was evident in deliberations focused on legislative, regulatory, and judicial advocacy goals – as well as membership development and engagement.  A draft revision to the Plan will be circulated to the leadership for review and comment, and considered by the Association’s Strategic Planning Committee when they next meet in February.

Board Appoints New Member, Funds Key Projects

The Retreat was preceded by a Board of Directors Meeting on November 12 at which the Board appointed Steve Meyer, Director of the Department of Environmental Services for the City of Springfield, Missouri, to a Region 7 Board Seat.  Meyer joins the Board with the support of the Springfield City Management and Council – and many Region 7 Member Agencies.  In other action, NACWA’s Board approved Target Action Fund (TAF) support for the development of a white paper addressing assessing financial capability opportunities in the context of integrated planning; litigation actions involving the Mississippi River Basin secondary treatment petition, the Chesapeake Bay nutrient trading lawsuit, the Upper Blackstone Supreme Court appeal, the Northeast Ohio Regional Sewer District stormwater appeal, and the Virginia Flow TMDL litigation; as well as several advocacy and coalition initiatives.  The Association’s Board also selected Managing & Financing the Resilient Clean Water Utility as the theme for the 2013 summer conference in Cincinnati in July.

Law Seminar Addresses Cutting-Edge Clean Water Legal Issues

Over 100 clean water attorneys, professionals, and utility managers from around the country gathered in Seattle this week to discuss critical legal and regulatory challenges facing the clean water community as part of NACWA’s 2012 Developments in Clean Water Law Seminar.  The three day program featured top legal experts from around the country covering a wide range of key issues impacting municipal wastewater and stormwater utilities.

The Seminar kicked off with a speech by Ken Kopocis, senior advisor in EPA’s Office of Water and the pending nominee for Assistant Administrator for Water, who presented an EPA perspective on current clean water challenges facing municipal utilities.  Kopocis discussed a variety of issues including wet weather concerns, nutrients, green infrastructure, emerging contaminants, and the need for additional investments in municipal wastewater and stormwater systems.  He also identified EPA’s recent integrated planning framework as an important new tool to help address some of these challenges, and thanked NACWA for its strong partnership and collaboration with EPA on a number of critical issues.

The Seminar also included a detailed discussion of EPA’s integrated planning framework and how clean water utilities can utilize it to their best advantage.  Senior EPA staff from the Agency’s Office of Water and Office of Enforcement & Compliance Assurance (OECA) took part in the panel and outlined key elements of the framework and addressed a number of common questions that have been generated by the document.  Discussion on the panel also focused on how communities can best pursue an integrated planning approach in both the enforcement and permitting contexts, as well as how some utilities are now working with their states to encourage integrated plans.

Other topics addressed at the Seminar included enforcement and consent decree developments, nutrients, stormwater, Clean Water Act interaction with other federal environmental statutes, and a review of the most important Clean Water Act legal cases of the past year.  Handouts and presentations from the Seminar are available on NACWA’s website.

NACWA Discusses Advocacy Agenda at Key Texas Clean Water Conference

The Water Environment Association of Texas (WEAT) and Texas Association of Clean Water Agencies (TACWA) hosted their bi-annual Texas Water Horizon specialty conference this week, convening water and environmental leaders from around the state to discuss the outlook for water policy locally and nationally.  NACWA was invited to give a federal policy update and provided an analysis of the recent elections and an outlook for the Congressional lame duck session and incoming 113th Congress.  Other speakers included the Water Environment Federation, the Texas Commission on Environmental Quality, and several members of the Texas legislature, including State Representatives Paul Workman and Bill Callegari.  NACWA participation in conferences such as this provides an excellent opportunity to galvanize support for national clean water advocacy objectives and to learn about state and regional trends that are poised to become national concerns.