Clean Water Current - February 19
New York City’s Watershed Agricultural Program and the Milwaukee River Watershed Conservation Project were among the awardees selected for a second round of project awards under the Regional Conservation Partnership Program (RCPP) announced this week by the U.S. Department of Agriculture (USDA). NACWA members are leading partners in both projects, namely the New York City Department of Environmental Protection (NYCDEP) and the Milwaukee Metropolitan Sewerage District (MMSD). NACWA congratulates these two member utilities on their participation in this important water quality improvement program.
The NYC Watershed Agricultural Program will receive $1.2 million for a conservation partnership between NYCDEP and farmers who develop and maintain conservation practices on active farms in the New York City water supply watersheds. MMSD will receive $1.5 million for implementing cost-effective conservation solutions on agricultural lands along the Milwaukee River corridor to address water quality impairments caused by excessive amounts of phosphorus and sediment.
Congress established the RCPP in the most recent Farm Bill as a way to encourage partnerships between agricultural producers and other entities such as municipal water and wastewater utilities to help farmers implement best management conservation practices to address environmental challenges such as water quality. NACWA, through the Healthy Waters Coalition, advocated for establishing the RCPP and for partnerships addressing nutrient management to be given priority for RCPP grants.
During the first round of RCPP project awards announced in 2014, several projects in which NACWA members were key partners were selected, including the City of Cedar Rapids, Iowa and the Madison Metropolitan Sewerage District in Wisconsin. Municipal water and wastewater utilities are increasingly looking at ways to partner with agricultural producers to tackle nutrient-related water quality impairments, as these partnerships often lead to more cost-effective solutions than upgrades to the wastewater treatment process. NACWA released a white paper last year detailing successful examples of how these partnerships work.
NACWA met with EPA this week to discuss the combined sewer overflow (CSO) notification requirements for Great Lakes dischargers contained in the Fiscal Year 2016 appropriations package passed by Congress in December. Due to NACWA’s advocacy, a policy rider that would have required Great Lakes dischargers to eliminate CSOs and blending was eliminated from the spending package. A compromise agreement replaced this rider with a requirement that EPA establish public notification requirements within two years for CSO discharges to the Great Lakes. At a minimum, the requirements will include the date, time, and volume of the discharge, along with a description of any public access areas impacted by the discharge. EPA did raise the possibility of increased incorporation of technology for notification purposes.
NACWA will be working to provide EPA with information on current monitoring and reporting practices and requirements. The notification requirements will be discussed during the NACWA Facility and Collection Systems Committee meeting next week, and NACWA will be requesting additional information in the near future from Member Agencies regarding CSO monitoring and reporting.
NACWA is excited to announce the release of the Climate Resilience Resource Menu for Clean Water Agencies . Recognizing the huge volume of information on climate change, mitigation, adaptation and resilience that has been produced, the Association’s Climate and Resilience Committee saw an opportunity to collect the most relevant resources for clean water utilities in one place.
The Menu is a new resource for NACWA members to locate the most relevant tools for their climate change adaptation and resiliency efforts, and it will be updated quarterly. The Menu provides a range of resources that will help clean water agencies prepare for and implement climate adaptation and resilience plans. Agencies can find initiatives, reports, funding sources, scientific data, case studies, and more in the Menu to help guide their resiliency efforts. The Menu can be found on NACWA’s Climate Change page.
NACWA will be further showcasing the Menu and its features at an upcoming webinar meeting of the Climate and Resilience Committee in the next few months. Details on that meeting will be sent to the membership once they are finalized.
NACWA sent a letter this week to leaders of the Senate Committee on Environment and Public Works and the House Committee on Energy and Commerce to weigh in on negotiations between the House and Senate regarding reform of the Toxic Substances Control Act (TSCA). Bills to reform TSCA were passed by both the House and Senate late last year, and Congressional staff are now working to align the House and Senate versions.
NACWA is interested in TSCA because of clean water agency concerns about federal preemption of state and local chemical regulation included in the bill. The proposed legislation will increase federal preemption of state and local regulations, but also includes exemptions for certain state and local programs related to water quality. Because the bills outline important exceptions from federal preemption for state and local entities, it is important that any final legislation considers clean water utilities as local entities eligible for these preemption exceptions—regardless of how the utility is structured, such as a unit of local government or a special district. NACWA outlines in the letter the various roles of clean water agencies under the Clean Water Act and why the preemption exceptions are important.
NACWA also explains that while POTWs comply with the CWA, in certain cases they also implement the CWA as co-regulators. This could include regulating discharges through pretreatment programs or local restrictions on use of a certain chemical to protect local treatment processes or receiving waterbodies. NACWA notes that local circumstances may warrant local regulation of chemicals even in cases where a federal regulation may not be warranted – or where a federal rule may be in place, yet insufficient to protect local water bodies and water infrastructure.
Lastly, NACWA urges that any federal preemption of state or local action not apply until EPA’s final rulemaking has occurred. Under the Senate’s TSCA bill, preemption of state or local action on a particular chemical would kick in as soon as EPA notices the scope of its assessment of a chemical—not once the multi-year assessment is complete. Many stakeholder groups have identified this as a top concern, and NACWA’s letter expresses our preference that local and state entities maintain all rights to regulate a particular chemical until EPA’s final rulemaking on the chemical is complete.
NACWA will continue to monitor these issues and remain engaged with the Hill as TSCA negotiations advance.
NACWA is excited to announce that the Clean Water Caucus will be hosting a Capitol Hill briefing March 16th on Building Water Resiliency—From Wet Weather to Drought. The briefing will be the Caucus’ first of the 114th Congress and provides NACWA with an important forum to educate Congressional staff about resiliency issues POTWs face and the innovative ways that utilities are responding. NACWA’s President, Adel Hagekhalil, will facilitate the panel discussion.
The Clean Water Caucus was established to help educate Congressional members and staff about the Utility of the Future concept and advance policies to promote clean water innovation. The Caucus is co-chaired in the 114th Congress by Rep. John Duncan, Jr. (R-TN) and Rep. Daniel Lipinski (D-IL). Next week, the Caucus Chairs will circulate invitations to fellow House members to join the Clean Water Caucus and attend the March 16th briefing. We invite all NACWA members to also reach out to their Representatives, encouraging them to attend and to join the Caucus to help them remain engaged and informed on clean water issues. Feel free to use and edit this draft letter and send (email is best) to your Member of Congress.
NACWA Member Agency the Camden County, New Jersey Municipal Utilities Authority (CCMUA) was recently highlighted in a video produced by EPA about the Camden Collaborative Initiative (CCI), a program in which regulatory agencies, CCUMA, environmental non-profits and community groups are partnering together to improve the quality of life in Camden. The video features interviews with a number of participants in the project, including NACWA Board Member and CCMUA Executive Director Andy Kricun, and highlights how the initiative is focused on improving the lives of local residents and making the community more sustainable and livable.
The CCI is an excellent example of how municipal clean water utilities can partner with stakeholders to be better neighbors in their communities and be a positive force for change on sustainability issues. It also is a great model for how NACWA members can take an active role to address environmental justice considerations in their daily operations, particular when they serve - or are located in - economically distressed areas.
NPR’s The Diane Rehm Show on Feb. 17 featured a special report, Beyond Flint: The Safety of America’s Tap Water, focused on the safety of the nation’s tap water. NACWA Board Member and DC Water’s CEO and General Manager George Hawkins was featured and spoke on the importance of water infrastructure to maintain public health and the important role that water and wastewater utilities play in providing critical resources to their communities. Hawkins also talked about the nation’s aging water infrastructure and underscored the importance of investing in infrastructure to ensure safe water supplies. A full recording and transcript of the episode can be found on the show’s website.
Affordability concerns also received media attention this week, with an article published about Rep. Marcia Fudge’s recent bill to provide financial assistance to low income ratepayers for help with water and sewer bills. The article quotes NACWA Board Member Julius Ciaccia, CEO of the Northeast Ohio Regional Sewer District. The legislation is strongly supported by NACWA and is fueling a growing conversation about the possibility of addressing affordability concerns through low income assistance programs.
On February 15, plaintiff activist organizations filed a reply brief in support of their motion for summary judgment, and in opposition to EPA’s recent cross motion for summary judgment, in the remanded Gulf Restoration Network, et al. v. EPA litigation. In this week’s brief, the activist organizations reply to both EPA and a January brief filed by NACWA, arguing that EPA cannot justify its decision to deny a request for imposition of federal numeric nutrient criteria (NNC) with statutory references after the fact in this briefing, but that it must have instead included this explanation in its original denial letter. The brief also points out that EPA’s arguments conflate the deferential standard of review with not having to point to any statutory basis for its denial, that EPA misconstrues/misapplies the Supreme Court’s ruling in Massachusetts v. EPA, and that EPA simply failed to consider any of the water-quality standard setting provisions set forth by a federal appeals court.
The case involves EPA’s response to a petition in which the activist organizations requested development of federal NNC for the Mississippi River Basin and northern Gulf of Mexico. EPA declined to make a necessity determination on the need for NNC and, in 2012, the activist groups sued. NACWA intervened in the case in 2012 and argued against the development of NNC. The case is currently on remand to the district court, following an appeal by EPA in which the Fifth Circuit ruled that EPA had the discretion to decline to make a determination on whether NNC was required as long as it provides sufficient justification, but that the district court must determine whether EPA’s explanation is legally sufficient.
More background information and analysis of the case is available on NACWA’s Litigation Tracking webpage and also in Advocacy Alert 13-15 and Advocacy Alert 15-05 . NACWA will continue to stay involved in the case during the remand and report on any developments.
The Water Infrastructure Network (WIN) held a meeting Feb. 17 with staff from Sen. Booker (D-NJ) to discuss water infrastructure funding and affordability. During an Environment & Public Works Committee Hearing last week, Sen. Booker stated his interest in leading a Senate version of the Water Infrastructure Trust Fund Act (H.R. 4468), recently introduced by Reps. Blumenauer (D-OR), Hanna (R-NY) and Duncan (R-TN), and his desire to have the Act included in a Senate Water Resources Development Act (WRDA) bill. During Thursday’s WIN meeting, NACWA and fellow WIN members explained how the Trust Fund idea has evolved as well as the reasoning behind the affordability study that was included in Rep. Blumenauer’s bill. NACWA will continue working with Sen. Booker as he considers sponsoring the Senate bill and pursues potential Republican co-sponsors.
During the meeting, WIN members also discussed their respective interests in WRDA 2016 and the updated timeline for the bill. Despite a quickly moving 2016 legislative calendar and emerging issues such as Flint and a Supreme Court vacancy, Congressional leaders from both sides of the aisle continue to express their commitment to moving a 2016 WRDA bill. House leaders hope a 2016 WRDA bill makes it out of Committee by the end of April and passes the House before Congress leaves for summer recess in July. Additional topics discussed included WIN’s support for provisions in Sen. Feinstein’s latest drought bill and legislative interest in reauthorizing the wet weather grant program and the state revolving funds (SRFs).
NACWA is a founding member of WIN and serves on its executive committee. Made up of a large coalition of municipal groups, engineers, contractors, labor, and other interests, WIN plays an important role in helping amplify NACWA’s message on infrastructure funding issues.
EPA announced this week its formal environmental enforcement priorities for Fiscal Years (FY) 2017 – 2019. Not surprisingly, municipal wet weather issues such as sewer overflows and stormwater will continue to be one of the Agency’s top enforcement targets.
NACWA submitted comments to EPA in October 2015 when the new enforcement priorities list was first proposed, highlighting that a continued focus on municipal wet weather issues without addressing other sources of water quality impairment – especially nonpoint source runoff – will fail to achieve meaningful water quality improvements. NACWA also noted that EPA’s own Inspector General released a recent report finding that the Agency needs to do a better job showing how municipal enforcement actions on wet weather issues are leading to actual water quality benefits.
NACWA will continue to push back vigorously against unreasonable EPA wet weather enforcement and provide its members with legal tools to help in defending wet weather enforcement actions.
Stormwater credit trading, while in its nascent stages, is being explored by more cities as a market-based component of a successful urban stormwater program. A new report released by the Natural Resources Defense Council (NRDC), How To: Stormwater Credit Trading Programs , lays out the ways a community with onsite stormwater retention requirements could go about developing a stormwater trading program that would allow property owners to meet their regulatory obligations by purchasing credits from other property owners who exceed their stormwater capture needs.
The Washington, DC Department of Energy and Environment (DOEE) employs stormwater credit trading program, which is referenced in the report. The city’s regulations require major land disturbing projects and substantial improvement projects to retain the volume from a 1.2 or 0.8-inch storm (depending on the type of project) onsite. However, if full onsite retention is not possible, the program allows for 50% of the required volume to be retained onsite and the remaining volume can be achieved by purchasing privately-traded Stormwater Retention Credits from other sites or paying an in-lieu fee to DDOE. More NACWA members are recognizing the potential of these market-based approaches to address stormwater issues, especially in densely populated areas. The NRDC report will help advance these discussions.
President’s Budget Leaves Us Disappointed
Last week’s budget request from the Obama Administration for Fiscal Year (FY) 2017 could not have been a greater disappointment to the clean water community. The request included a dramatic cut to the Clean Water State Revolving Fund (CWSRF), and for an Administration that has tried to make clean water a centerpiece of its legacy, this spending cut was indeed surprising. Read on to learn more about our thoughts on the proposed budget.
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