» Clean Water Current Archive

December 12, 2014

Congress Releases FY2015 Budget Package, Maintains Spending Levels on SRFs

Congressional leaders released a proposed spending package to fund the federal government for fiscal year (FY) 2015 with the intention to enact the legislation by the end of the week and avoid a repeat of the 2013 government shut-down. The package, H.R. 83 (The Consolidated and Further Continuing Appropriations Act of 2015) provides nearly $8.14 billion for the Environmental Protection Agency (EPA), approximately $60 million below FY14 levels, but nearly $250 million above the Administration’s requested amount. The spending package maintains funding levels for both the Clean Water and Safe Drinking Water State Revolving Fund programs – $1,488,887 billion and $906,896 billion respectively – shunning the Administration’s proposal to reduce spending on these programs in favor of spending elsewhere in the budget. In addition, EPA will receive $2.2 million for hiring and staffing needs to develop program rules and guidelines for implementing the Water Infrastructure Finance and Innovations Act (WIFIA) program, enacted by Congress earlier in the year as part of the Water Resources Reform and Development Act (WRRDA) and supported by NACWA members.

Additional highlights of the package include increased funding for geographic programs in targeted watersheds and estuaries, including $300 million for the Great Lakes Restoration Initiative and $73 million for the Chesapeake Bay Program. While the package does not include separate funding for EPA’s Integrated Planning initiative, Congress directs EPA to “maintain technical assistance and outreach to communities seeking to develop and implement integrated planning approaches to meeting Clean Water Act requirements.” Finally, Congressional negotiators agreed to not include controversial policy riders that would have restricted EPA’s ability to finalize the Waters of the U.S. rule or the Clean Power Plant rule, with Republican leaders instead choosing to wait to address these proposed rules after they assume control of both chambers in January. Though the package contains controversial policy-related provisions not related to environmental programs which caused the package to lose support among Democrats, the House successfully passed the bill yesterday and the Senate is, at press time, taking up the measure.

NACWA and EPA OIG Discuss Consent Decree Investigation

NACWA had a conference call this week with EPA’s Office of Inspector General (OIG) to discuss OIG’s investigation  into the effectiveness of the Agency's municipal wet weather enforcement efforts via consent decrees. This project was originally part of OIG’s 2014 Annual Plan and has been carried over to the 2015 Annual Plan. The investigation was initiated in August and is nearing the end of the research phase. At the conclusion of the investigation, OIG will provide recommendations to EPA on how it can improve the effectiveness and efficiency of this enforcement initiative.

This week’s call followed up on a meeting held on October 22. OIG has narrowed the scope of their investigation since our initial meeting, focusing now on the outcomes from consent decree programs in order to determine the overall success of the enforcement initiative. OIG is evaluating nine case studies as part of this investigation. However, OIG is conducting a field investigation of only two utilities and relying on EPA information and data for the other seven. NACWA cautioned OIG that the EPA data may not reflect the best and most appropriate environmental measures of success or the economic and social impacts of consent decree programs on local communities. OIG invited NACWA to provide additional specific examples and case studies and committed to review these as part of the investigation if provided by January 15.

NACWA is looking for examples that support the position that success should be measured not only by volumetric or numeric overflow reduction but by water quality monitoring and modeling (e.g., bacteria levels, days of water quality attainment, stream miles improved, and other additional benefits such as air quality improvement, wildlife habitat restoration, urban beautification and economic development). The Association wants to ensure that OIG has the benefit of the most accurate and comprehensive information available, and is seeking information and examples from Member Agencies that have used/are using a broader suite of environmental and economic indicators to measure the success of their wet weather consent decree programs. Members that are willing to share this information are asked to contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/833-3692, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ), or This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).

OIG also said that affordability is an issue of great importance and is being examined at the highest levels of OIG. The OIG representatives stated there may be a follow-up investigation focused on affordability. OIG requested that NACWA share its position on EPA’s recently released Financial Capability Framework for Municipal Clean Water Act Requirements . 

NACWA will continue the dialogue with OIG on this important investigation and will keep the membership updated.

NACWA Files Brief in Consent Decree Litigation

NACWA will submit a brief Dec. 12 in federal litigation over wet weather consent decrees, arguing against efforts by environmental activist groups to block entry of a decree successfully negotiated by a municipal clean water utility with its federal and state regulators. The Association's brief to be filed with the U.S. Court of Appeals for the Seventh Circuit in United States, et al. v. Metropolitan Water Reclamation District of Greater Chicago (MWRD) supports Association Member Agency MWRD in seeking to uphold a lower court decision entering a consent decree as negotiated by the utility.

In the brief, NACWA argues that a lower court properly applied a presumption in favor of approval to the decree, and that the court was correct in rebuffing efforts by activist groups to change the decree and add additional requirements not negotiated by the parties. The brief also notes the importance of upholding decrees that are negotiated by clean water utilities and government regulators, especially since these parties have the expertise to determine the proper requirements for the decree. The brief also notes that the ability of third parties to substantially change decree requirements through a judicial challenge would add unnecessary cost and complexity to the consent decree process.

Additional information on the litigation -- including its potential implications for other clean water utilities, copies of relevant court filing, and a copy of NACWA’s brief once filed – is available on the Association’s Litigation Tracking webpage. NACWA will keep the membership updated on developments.

NACWA Provides POTW Perspective at Ecosystem Services Conference

NACWA joined representatives from EPA, the environmental NGO community, and stakeholders this week in a roundtable discussion on water quality trading during a meeting of ACES (A Community on Ecosystem Services) in Arlington, VA.  The roundtable discussion focused on the barriers to more water quality trading and why, now 11 years after EPA released its policy on trading, there are very few mature programs in place.  NACWA provided the ‘buyers perspective’, outlining the top concerns clean water agencies have when considering water quality trading.  NACWA also discussed recent efforts by its members to explore more collaborative approaches with nonpoint sources.  NACWA’s Water Quality Trading Working Group will meet next during NACWA’s upcoming Winter Conference, February 1-4, in Charleston, SC.

EAB Holds Oral Arguments in Satellite System Permit Appeal

EPA’s Environmental Appeals Board (EAB) heard oral arguments on Dec. 11 in a permit appeal over efforts by EPA Region 1 to include satellite collection systems as co-permittees in a federally-issued discharge permit for a regional wastewater treatment facility. The key issue presented in the Charles River Pollution Control District appeal is whether EPA can forcibly include satellite systems as co-permittees in a permit when neither the satellites nor the treatment facility has requested the inclusion of the collection systems. NACWA previously submitted a brief  in the case supporting a challenge to the permit filed by Member Agency the Upper Blackstone Water Pollution Abatement District and attended this week’s oral arguments.

The EAB judges appeared skeptical during the hearing about many of the arguments advanced by EPA Region 1 in defense of the permit. In particular, the judges noted that the satellite systems had not applied for the permit, and thus their inclusion in the permit was a potential violation of EPA’s own permitting regulations. The judges also expressed concern about whether the satellites had received sufficient notice that they would be included in the permit. It is likely a decision in the case will be issued in early 2015, and NACWA will report on any developments. Additional information on the case is also available on NACWA’s Litigation Tracking webpage.

Web Seminar Addresses Security & CSO Cost Issues

This week’s Legal Hot Topics Web Seminar featured compelling presentations on tort liability protection related to terrorism and considerations of costs under the 1994 Combined Sewer Overflow Policy . Dana Pashkoff, Of Counsel with NACWA Legal Affiliate McKenna Long & Aldridge, presented on the Support Anti-Terrorism by Fostering Effective Technology (SAFETY) Act, which is a powerful tool for minimizing or eliminating third party claims arising out of an act of terrorism. The goal of the Act is to encourage the development and deployment of effective anti-terrorism products and services by providing liability protections.

Ms. Pashkoff explained how the SAFETY Act works and how it can benefit clean water utilities; what types of issues are covered; how utilities can use EPA’s Vulnerability Self-Assessment Tool (VSAT) to be presumptively eligible for SAFETY Act coverage; and how utilities can obtain SAFETY Act coverage for the various security programs used at their facilities. For more information on the SAFETY ACT, visit the Department of Homeland Security’s SAFETY Act website.

Next Robin Levine, Deputy General Counsel of NACWA Public Agency Member New York City Department of Environmental Protection (NYCDEP), gave a presentation on recent actions by New York State and EPA Region 2, which suggest that cost considerations and the “knee of the curve” analysis included in the Combined Sewer Overflow (CSO) Policy are no longer valid for evaluating potential long-term control plans (LTCPs).

The regulators’ interpretation requiring LTCPs to select projects that will achieve the highest attainable use, rather than projects that will achieve compliance with existing water quality standards, could shift the spending threshold from “knee of the curve” to “substantial and widespread economic and social impact.” This interpretation, if adopted more widely, has serious consequences for clean water utilities.

NYCDEP has challenged the state regulator’s disapproval of the LTCP at issue and that case is pending in state court. NACWA will keep members updated on developments in this case.

Presentations and a link to the video of the webinar are available on NACWA’s website. Mark your calendars for the next Legal Hot Topics Web Seminar to be held on March 18.

NACWA Meets with Stakeholders and EPA on Affordability, Climate

NACWA and other key water sector associations met this week with EPA Office of Water (OW) staff to discuss top urban and rural utility priorities.  The organizations heard an update from EPA on recent efforts to coordinate federal initiatives on climate adaptation and there was a general agreement that climate/resilience projects are being increasingly incorporated into state priority lists for State Revolving Loan Fund (SRF) projects, but that perhaps more can be done in this arena. The liveliest discussion, however, took place over urban and rural affordability concerns in the context of Clean Water Act compliance.  While municipalities discussed the need for federal funding assistance, as well as greater flexibility in carrying out Clean Water Act compliance efforts, OW called on municipalities to work with their states to figure out ways to allow for variable rate structures for water and sewer services.  EPA and the organizations present agreed these issues require further discussion. NACWA noted that Water Week in April and NACWA’s Summer Conference in Providence would be good venues to continue this discussion.  OW also noted its intent to work closely with rural stakeholders to ensure that small communities are made aware of, and have the resources needed to, participate in trading programs, especially in the context of nutrient-related total maximum daily loads (TMDLs).

Mayors Release California Affordability Report; NACWA to Ramp Up Advocacy

Clean water affordability continues to be a top priority for NACWA and the clean water community. Recently, the US Conference of Mayors met to discuss the issue of clean water affordability and released a report  on the financial impact of EPA’s affordability criteria in 30 California cities. The report highlights the disproportionate financial impact that water, sewer and flood control/stormwater services have on different segments of the population, especially when calculated as a percentage of actual household income. For example, ten cities report combined water, sewer and flood control costs per household in excess of 4.5% of annual income for 20% or more of households.

While EPA has addressed some affordability and flexibility concerns, especially in the context of consent decree negotiations, in its recently released Financial Capability Framework for Municipal Clean Water Act Requirements , more work needs to be done. NACWA will continue to work with the US Conference of Mayors on the affordability front and will be developing a strategy for raising key affordability concerns with the new Congress, as well. NACWA’s leadership will continue to discuss the affordability issue at its February 1-4 meeting in Charleston, SC.

NACWA Cost of Clean Water Index Survey Responses Needed by December 31

The deadline for completing NACWA’s 2014 Cost of Clean Water – Service Charge Index Survey is approaching. NACWA has published this Index annually since 1992 to track average annual single-family residential service charge increases as measured against the rate of inflation. The Index has become a very important resource for clean water agencies and a wide variety of policymakers and experts. Responses from as many members as possible are crucial to keep the Index a reliable and informative resource.

A personalized survey form was emailed to NACWA members in November and we urge members to complete the form by December 31. The survey is brief and should take less than 15 minutes to complete. The form can be completed online at www.cleanwatercentral.org/logon.asp (log-in information is in the email) or as a hard copy that was emailed to you. If you have any questions or need another copy of the form, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Register Today!  Web Seminar & Conference Opportunities Abound

Register Today For:

• December 16 - Revisions to Clean Water State Revolving Fund Program and EPA Guidance to States 
  Join NACWA and the Water Environment Federation (WEF) from 1:00 - 2:00 pm (Eastern) on December 16 to discuss important changes to the Clean Water State Revolving Fund (CWSRF) program. The CWSRF received a make-over this year by Congress and these changes will impact municipal borrowers across the country. Registration is complimentary.
• February 1 - 4 – 2015 Winter Conference - Leaving the Comfort Zone... Collaborating for Clean Water 
  The municipal water and wastewater community is beginning to carve an innovative path for addressing issues by collaborating with non-traditional partners – from the agriculture, finance, energy and product stewardship sectors to name a few. All of these unusual alliances, while out of the normal comfort zone, have resulted in both improved dialogue and water quality, as well as enhanced technical and financial capabilities for everyone involved. We have asked these collaborators, both traditional and “strangers”, to discuss these new or improved partnerships over the course of the Winter Conference program . Hotel information and registration is also available.

NACWA Blog of the Week:
Leading Beyond the Plant with the Urban Waters Federal Partnership

Last week, NACWA partnered with NGOs and Federal Agencies to support the Urban Waters Federal Partnership (UWFP). While some in the Partnership may seem to be unusual bedfellows, NACWA shares their common belief that the best way to maintain and restore critical urban waters and watersheds is by working together and leveraging our organizations’ respective skills and resources. What else does joining together with these groups mean?  Read on to find out.