» Clean Water Current Archive

May 10, 2013

NACWA Continues Legal Advocacy in Mississippi River Nutrients Case

NACWA participated on a reply brief filed May 10 in litigation over nutrient regulation for the Mississippi River Basin (MRB), supporting EPA’s decision to deny an activist petition requesting federal numeric nutrient criteria (NNC) for the entire MRB.  The joint intervenors’ brief in Gulf Restoration Network v. EPA, signed by NACWA and a number of other organizations supporting EPA’s petition denial, responds to arguments from the activist plaintiffs in support of the legal challenge.  The NACWA/intervenors brief aggressively defends EPA’s denial of the NNC petition, and argues that the plaintiffs have failed to demonstrate that federal NNC are necessary for the MRB.  In particular, the brief highlights a concession by the plaintiffs that they have failed to demonstrate any necessity for federal NNC in the MRB.  Additionally, the brief contends that EPA’s petition denial was both procedurally and statutorily valid and that the plaintiffs’ claims to the contrary are not valid.  The filing is consistent with previous positions taken by NACWA and others in the case, encouraging the court to uphold EPA’s original denial of the federal NNC petition and dismiss the legal challenge.

A copy of the brief will be posted on the Litigation Tracking section of the NACWA’s website, where additional information on the case can also be found.  Briefing in the case is now complete, and NACWA will await a ruling from the court.  We will keep the membership updated on any developments.

 Bipartisan Clean Water Funding Bill Introduced in House

Representative Tim Bishop (D-NY), Ranking Member of the House Subcommittee on Water Resources & the Environment, along with Representatives Don Young (R-AK), Nick Rahall (D-WV), Peter King (R-NY), and 23 other Democratic members of the House Subcommittee on Water Resources and the Environment introduced the Water Quality Protection and Job Creation Act of 2013. This bill would authorize approximately $13.8 billion over five years in wastewater infrastructure through the Clean Water State Revolving Fund.  The bill also proposes two complimentary initiatives for the long-term financing of wastewater infrastructure through the establishment of direct loan and loan guarantee programs and a Clean Water Infrastructure Trust Fund.  NACWA looks forward to working with Rep. Bishop to develop broad-based support for this legislation. 

 NACWA Voices Concern with EPA’s Draft Rivers and Streams Assessment

NACWA submitted comments this week on EPA’s National Rivers and Streams Assessment 2008-2009 Draft (Draft NRSA). Released in February, the Assessment surveyed the condition of the nation’s major rivers and streams based on statistical survey techniques that measured “key stressors” such as nutrients and sedimentation. The Assessment found that 55 percent of the nation’s rivers and streams are in “poor” overall biological condition. Phosphorus levels were surveyed and deemed to be “high” in 40 percent of rivers and streams and nitrogen in 27 percent of these waterbodies. Due to flaws in the “reference-condition-based approach” used to measure and assign condition classes to streams and rivers, NACWA has serious concerns with EPA’s conclusions. The Agency’s use of the reference condition approach to setting water quality criteria has been under fire from many advocacy groups, including NACWA, since the 1990s.

This survey attempted to identify “least disturbed” stream and river reference sites, that when compared to similar stream lengths, determined their ecological health. The Draft NRSA notes that during reference site selection, if any potential reference sites had “high” stressor values, i.e. nitrogen or phosphorus, the site was not included as a reference site. It stands to reason that after excluding sites with high stressor levels from the least disturbed reference dataset, those sites remaining would have extremely low stressor concentrations, regardless of whether they were actually from natural or anthropogenic sources. In the way EPA selected its reference streams, the stream lengths being evaluated were more likely to exceed the low stressor levels in those reference streams. This results in many healthy streams and rivers being incorrectly deemed in poor condition and the Draft NRSA improperly concluding that a very small percentage of rivers and streams are in “good” condition.

NACWA also objects to the Assessment alluding that wastewater is a source of chemical stressors, particularly nitrogen and phosphorus, because the Assessment does not present a scientifically defensible cause and effect relationship between the “many sources of [the] stressors” and waterway biological health to make this claim, nor is it sufficient to suggest regulatory management actions. NACWA believes that by adjusting the methodology, the outcomes of the Assessment would have shown a more accurate picture of the condition of the nation’s waterways and likely more positive results that reflect 40 years of our members’ commitment to water quality. NACWA will continue to track the progress of the Draft NRSA as it is developed into a final report.

 EPA Seeks Rehearing of Federal Court Decision on Blending

EPA filed a request for rehearing  May 9 with the U.S. Court of Appeals for the Eighth Circuit, asking the court to review a previous decision invalidating key elements of EPA’s improper efforts to regulate blending and raising significant concerns about the Agency’s ongoing attempts to limit wet weather treatment options.  The Eight Circuit’s March 25 ruling  in Iowa League of Cities v. EPA, made by a 3-judge panel of the court, invalided certain EPA actions to limit the use of blending as both procedurally and substantively illegal (see March 29 Clean Water Current for additional details) and marked an important legal victory for the clean water community.  

EPA now seeks to have the decision reviewed by the full Eighth Circuit, arguing the original ruling is legally flawed and conflicts with decisions from other federal courts.  The primary thrust of EPA’s argument is procedural in nature, arguing that the contested Agency actions in the case do not qualify as “promulgation” of binding regulatory requirements or as “final” agency action that justify judicial review.  

However, in a particularly concerning development, EPA also attacks the court’s substantive ruling that the Agency’s efforts to regulate blending by applying secondary treatment limits within the publicly owned treatment work (POTW) are illegal under the Clean Water Act (CWA).   EPA’s rehearing request argues that it may regulate internal waste streams within the treatment plant, and specifically states that “EPA may, consistent with the CWA, regulate bypass and prohibit the diversion of waste streams from secondary and other treatment units even if a POTW is discharging in compliance with end-of-pipe effluent limitations.”  

NACWA strongly disagrees with this position by EPA and believes the Agency does not have legal authority to limit blending or other internal plant wet weather treatment processes if all applicable effluent limits are being met at the final point of discharge.  The Association further believes peak flow treatment techniques play an integral role in helping utilities provide maximum treatment to wet weather flows and protect water quality, and has aggressively advocated against EPA efforts to limit wet weather treatment options.  NACWA will continue to push back against EPA regulatory overreach in the area and will take additional actions as necessary to defend its members’ interests on this critical issue.  We will keep the membership updated on developments.

 NACWA Continues Efforts to Maintain Tax-Exempt Status of Municipal Bonds; Voice Your Utility’s Support for House Resolution 112!

The U.S. Conference of Mayors (USCM) convened a second meeting this week with NACWA and dozens of other national associations across infrastructure sectors to ensure that Congress does not scale back, or eliminate, the tax-exempt status of municipal bonds. The Obama Administration’s Fiscal Year 2014 budget proposes a 28% benefit cap on the interest from tax-exempt municipal bonds, an action that would have enormous financial consequences for infrastructure projects, including those in the water and wastewater sector.  NACWA will continue to work closely with USCM and the nearly 100 other coalition organizations to ensure that Congress maintains the tax-exempt status of municipal bonds.

NACWA is extremely concerned about the negative impacts this proposal would have on the clean water sector, and requests that all NACWA public utility members send this letter to their Members of the House of Representatives, urging them to co-sponsor this Resolution (H.Res. 112) that celebrates the 100th anniversary of keeping municipal bonds free from federal taxation.  For information on how to contact your Congressional Representatives, please see NACWA’s Congressional Toolbox.  If you have any questions or need assistance, please contact Hannah Mellman at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 Water Sector Coordinating Council Discusses Cybersecurity; Workgroup Maps Security Priorities

The Water Sector Coordinating Council (WSCC) held its quarterly meeting this week via webinar to discuss recent and upcoming activities related to security and resiliency of drinking water and wastewater utilities.   NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and a NACWA Board member and Vice Chair of the WSCC, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, both participated in the meeting.  The meeting focused on cybersecurity and the work initiated by the February 12 Executive Order (EO) and Presidential Policy Directive 21 (PPD-21), which aim to improve the cybersecurity of the nation’s infrastructure.  

The Department of Homeland Security (DHS) has convened eight working groups to provide recommendations for completing the requirements of the EO and PPD-21. Staff from the WSCC associations participated in these working groups and provided status reports to the Council.  The Council also discussed recent events that have not had serious consequences, but that demonstrate the cyber vulnerabilities of the sector and the need for utilities to improve their cybersecurity.  The WSCC will meet again in August, and will be monitoring the work related to EO and PPD-21.  

WSCC Workgroup Meets to Revise Sector Roadmap

 A workgroup of the WSCC and the Government Coordinating Council (GCC) also met this week to finalize revisions to the Roadmap to a Secure & Resilient Water Sector, a 2009 document that defined the priorities for improving security, emergency preparedness, and resiliency for drinking water and wastewater utilities.  The updated Roadmap will be used by EPA to determine the projects that its Water Security Division (WSD) will pursue in upcoming years.  Patty Cleveland and Jim Davidson are both members of the workgroup and participated in this week’s meeting.  The workgroup agreed that simplifying the selection and use of the various security-related tools for the water sector should be a top priority project.  The final Roadmap should be completed by the end of the month, which will allow the WSD to consider its recommendations when establishing its 2014 budget.

 Key House Appropriators, Perciasepe Tout Importance of SRF, Clean Water Funding

On Wednesday, EPA Acting Administrator Bob Perciasepe testified before the House Appropriations Subcommittee on Interior, Environment and Related Agencies on EPA’s Fiscal Year 2014 budget proposal. The hearing referenced several Clean Water Act (CWA) issues NACWA has been heavily involved in, including funding for the Clean Water and Drink Water State Revolving Funds (SRFs) and Integrated Planning. In their opening statements, both Subcommittee Chairman Mike Simpson (R-ID) and Ranking Member Jim Moran (D-VA) expressed disappointment at the Obama Administration’s proposed cuts to the SRF programs, and Simpson reiterated his support of finding a sustainable long-term mechanism to fund the SRF programs. Additionally, in his testimony, Perciasepe touted EPA’s Integrated Planning Framework as a tool to help communities implement their CWA obligations in a more affordable manner.  NACWA will continue to track developments on the Federal budget and ensure that the highest possible funding levels are included in the House and Senate packages.

 Water Blues, Green Solutions Documentary Trailer Released

This week producers of the documentary Water Blues, Green Solutions released the trailer for the film and NACWA encourages members to watch it.  The documentary, which is expected to be released in early 2014, is a collaborative effort amongst a number of organizations, including NACWA which is supporting the effort through its Targeted Action Fund (TAF).  The documentary is being produced by the Pennsylvania State University Public Broadcasting (PSPB) and is a follow-up to the successful 2008 documentary Liquid Assets, which NACWA also supported. This installment focuses on the use of green infrastructure in tandem with gray infrastructure to protect water quality and explores themes of sustainability through the integration of man-made and natural systems.  Water Blues, Green Solutions focuses on the planners, developers, local governments and engaged residents in cities like Philadelphia, San Antonio and New York as they work to find sustainable ways to manage water, stormwater and wastewater. More information about the film and how to get involved can be found at www.waterblues.org and via Facebook (facebook.com/WaterBluesGreenSolutions) and Twitter (@H20blues).