ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
As the Fiscal Year 2017 (FY17) federal appropriations process advances and legislators continue to look for ways to respond to the Flint crisis and pass their priority legislation before summer recess, Congressional interest in water infrastructure is higher than has been seen in many years. This was particularly evident last week, where a powerful and spirited defense of the State Revolving Fund (SRF) programs was evident on Capitol Hill. This follows a strong showing during Water Week 2016—when many water industry professionals, including many NACWA members - made over 150 Hill visits to share information about their communities and how the SRF has been used.
On Tuesday, April 19 the Senate Environment & Public Works Committee held a hearing to examine the FY17 EPA Budget Request, which resulted in a strong bipartisan show of concern over SRF funding. Chairman Inhofe (R-OK) opened the hearing with a criticism of the Administration’s proposal to cut $414 million from the Clean Water SRF (CWSRF), which he said reflects a deviation of EPA priorities from core missions such as clean water to newer Administration priorities such as climate change. Ranking Member Barbara Boxer (D-CA) also criticized the EPA’s SRF cuts and lamented the Agency’s overall budget constraints. Other Democrats such as Sen. Cardin (D-MD) also criticized the lower funding for water infrastructure.
On Wednesday, April 20, the Senate Interior & Environment Appropriations Subcommittee held its hearing to review the FY17 EPA Budget. Concerns were raised by members of both parties regarding affordability. In response to a question from Senator Blunt (R-MO) regarding how EPA is addressing affordability, Administrator Gina McCarthy discussed EPA’s efforts on Integrated Planning. Senator Tester (D-MT) also raised the issue of regulatory burdens related to water quality standards and small water systems.
Also on Wednesday, 30 Democratic Senators led by Sen. Cardin (D-MD) introduced a comprehensive package seeking to consolidate the numerous legislative efforts which have emerged in the wake of Flint. S. 2821, the True LEADership Act, would provide $70 billion in spending on water infrastructure over the next ten years and provide grants and loans for lead relief. The bill includes Sen. Cardin’s recent proposal to triple funding for the CWSRF and Drinking Water SRF, with annual funding for the CWSRF between $5.2 billion and $9.1 billion in FY17 through FY21. The bill would also make the WIFIA program permanent and authorize further funding.
Meanwhile in the House, on Friday April 15, Ranking Member Peter DeFazio (D-OR) of the Transportation & Infrastructure Committee and Ranking Member Grace Napolitano (D-CA) of the Water Resources Subcommittee introduced legislation to authorize nearly $25 billion between FY17 and FY21 for communities to finance and build wastewater, reuse, and resiliency projects. H.R. 4954, the Water Quality Protection & Job Creation Act, includes $20 billion between FY17 and FY21 for the CWSRF. It also would provide $2.5 billion in grants to address combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and stormwater. More than 20 Democrats joined in cosponsoring the bill.
NACWA has been leading the charge in recent months to secure more funding for water infrastructure, especially for the SRF, and is pleased to see such strong support emerging in Congress for additional federal support. This is a direct result of the commitment of the Association’s members to elevate the importance of this issue with their elected leaders. NACWA will closely track developments on the Hill and keep the membership updated.
Representative John Duncan (R-TN) and Representative Dan Lipinski (D-IL) are circulating a letter of support among their colleagues on the House Transportation & Infrastructure Committee (T&I) urging that NACWA’s proposal to strengthen the integration between flood control and stormwater management projects be adopted in the Water Resource Development Act (WRDA) reauthorization package currently being debated in Congress. NACWA members located in Congressional districts whose Member of Congress sits on the House T&I Committee are urged to contact their offices to ask them to sign on to the letter.
NACWA filed an amicus curiae brief April 20 with the U.S. Court of Appeals for the Fourth Circuit in an appeal of a federal district court ruling that, if upheld, could create significant legal vulnerabilities for Member Agencies and other holders of National Pollutant Discharge Elimination System (NPDES) permits. NACWA’s brief argues that the lower court decision inappropriately upends the NPDES permitting process; significantly damages the Clean Water Act’s (CWA) permit shield defense; usurps states’ authority to set and interpret water quality standards; undermines the public’s right to comment on such standards before they are implemented and enforced; and creates a backdoor for collaterally attacking final permit decisions, thus depriving NPDES permittees of fair notice and raising serious Due Process concerns.
The litigation, Ohio Valley Environmental Coalition et al. vs. Fola Coal Company, involves a ruling from the U.S. District Court for the Southern District of West Virginia that a provision prohibiting discharges from causing or materially contributing to violations of water quality standards, which was incorporated into an NPDES permit by reference, created an independently enforceable effluent limitation. The Court then created its own numeric effluent limitation for the permit from narrative criteria, and further found that compliance with this effluent limitation is a prerequisite for protection under CWA §402(k). Section 402(k) establishes that compliance with a NPDES permit is compliance with the CWA and provides a shield from citizen suits (the permit shield).
NACWA members count on NPDES permits to provide clear and certain notice of their compliance obligations and a shield against liability so long as they remain in compliance. The Association is participating in this case to help preserve the permit shield as a strong defense for NPDES permit holders to enforcement actions. NACWA’s participation is part of a broad coalition of diverse groups, including industrial and agricultural point source dischargers, who share a common interest in defending the permit shield defense.
NACWA filed comments April 18 questioning the need for a draft EPA guidance released earlier this year titled Technical Support Document: Recommended Estimates for Missing Water Quality Parameters for Application of EPA’s Biotic Ligand Model. While NACWA supports the use of the biotic ligand model (BLM), which can result in water quality criteria and permit limits that better reflect site-specific conditions for some pollutants, the Association also questions the use of default values in lieu of site-specific data in its comments.
Generally, where the BLM is being implemented and data are lacking, the state and the permittee work together to ensure the necessary data to run the model are collected. NACWA’s comment letter underscores that the “use of default values could undermine the original intent of developing the BLM, resulting in criteria or permit limits that in fact do not reflect site-specific water conditions.” Use of default values for key parameters like dissolved organic carbon is particularly problematic. EPA plans to review the public comments and publish the final document this summer. NACWA will follow up with the Agency on its comments.
NACWA was in attendance April 19 when EPA briefed municipal and state government association staff on water infrastructure financing and environmental justice issues during its quarterly intergovernmental associations meeting. Jim Gebhardt, Director of the Water Infrastructure & Resilience Finance Center, provided an extensive overview of the work of the Center. NACWA will share a detailed list of the Center’s ongoing activities and opportunities for clean water utilities as soon as EPA makes it available. The Center’s website has an extensive collection of resources on water infrastructure financing and a calendar of upcoming events, including their series of finance forums around the country. During his remarks, Gebhardt noted that the Center is looking for ways to increase use of the SRFs outside the direct loan context, including guarantees and investment. EPA feels that such uses could enhance the power of the SRFs, in many cases without impacting the lending capability of the programs.
Charles Lee, Deputy Associate Administrator for Environmental Justice (EJ) at EPA, also provided participants an overview of the Agency’s new EJ 2020 framework to kick off a discussion on work in the EJ area. When asked whether low income affordability issues were being factored into the Agency’s EJ work, Lee mentioned NACWA’s existing advocacy on this front and stressed that they are interested in continuing a dialogue on those issues.
On the eve of Earth Day 2016, a partnership of water sector organizations—NACWA, the Water Environment Federation (WEF), the Water Environment Research Foundation (WERF) and WateReuse — with support from EPA — announced a new Utility of the Future (UOTF) Today recognition program. The program will celebrate the progress and exceptional performance of our nation’s wastewater utilities while supporting the widespread adoption of the innovative UOTF business model.
The UOTF concept was first introduced in 2013 to guide utilities of all sizes toward smarter, more efficient operations and a progression to full resource recovery with enhanced productivity, sustainability, and resiliency. Since then, many utilities have successfully implemented new and creative programs to address local wastewater technical and community challenges. This new recognition program will build on this success by celebrating these advancements and experiences; encouraging the adoption of UOTF principles (water reuse, watershed stewardship, beneficial biosolids reuse, community partnering & engagement, energy efficiency, energy generation & recovery, and nutrient & materials recovery) and enabling participants across a broad range of capacities and capabilities to collaborate, learn, and continue to evolve as a unified sector.
EPA has finalized a Report to Congress on combined sewer overflows (CSOs) into the Great Lakes, as it was required to do by the Consolidated & Further Continuing Appropriations Act of 2015. Congress requested a summary of CSO discharge volumes to the Great Lakes in 2014. In response, EPA collected data on CSO permittees, their discharge locations, the status of long-term control plans (LTCPs) and post-construction monitoring programs, historical and anticipated CSOs, and 2014 CSOs. The report provides this information without drawing conclusions about the environmental impacts of the CSOs or the efforts of utilities to reduce CSO discharges.
As required by the fiscal year 2016 appropriations package, EPA is also developing CSO public notification requirements for Great Lakes dischargers. 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. NACWA is currently compiling information from utilities to help inform EPA's development of these requirements, which must be implemented by December 2017.
The U.S. Court of Appeals for the Sixth Circuit denied petitions last week seeking an en banc rehearing on the appropriate venue for challenges to EPA’s final Clean Water Rule. The court, in its brief April 21 order , denied the request for rehearing before the full court because “the issues raised in the petitions were fully considered upon the original submission” and after the petitions were circulated to the full court, no judge requested a vote for rehearing en banc. In February, in a 2 to 1 decision, the Sixth Circuit accepted jurisdiction over several consolidated challenges of the Clean Water Rule. See the February 29 Clean Water Current for more details.
On Thursday, April 21, the Senate passed S. 2012, the Energy Policy Modernization Act of 2016. The bipartisan bill now heads to conference with House Bill (HR 8), which was passed last year. If the bill is signed into law, it would represent the first major energy reform in nearly a decade.
The Senate bill passed out of Committee in 2015 and was anticipated to pass the Senate more quickly this year, but was held up by debate over relief for the Flint crisis. Democrats, led by Sen. Stabenow of Michigan, had pushed to pass Flint relief with the energy bill. Despite intense negotiations, a path forward could not be reached and the Flint provisions were ultimately dropped, with Sen. Stabenow indicating there was a commitment to finding another legislative path forward to provide Flint with additional federal support. Several provisions of interest to POTWs were included in the final legislation.
On Friday, April 22, 2016, NACWA participated in a TMDL Symposium hosted by Chesapeake Bay Foundation at their Annapolis, MD headquarters. NACWA was represented by Deputy General Counsel Erica Spitzig at the Symposium, which engaged representatives from EPA and various stakeholder groups in discussion of TMDL implementation issues in the wake of the Third Circuit’s decision in American Farm Bureau v. EPA upholding the TMDL for the Chesapeake Bay. Among the topics under discussion were issues involving nutrient trading programs, MS4 permits, and methods for addressing agricultural discharges.
NACWA filed a brief in the Farm Bureau appeal, and the decision marked a significant victory for NACWA members, as it upholds the TMDL’s holistic watershed approach requiring pollution reduction from all sources of impairment, including nonpoint sources. Friday’s Symposium centered on views from NGOs, regulators, and the clean water sector on strategies for putting the victory into action.
The Wheeler Institute for Water Law & Policy at the UC Berkeley School of Law recently released a report titled Citizen Enforcement and Sanitary Sewer Overflows in California. NACWA and several wastewater agencies and associations provided funding for this report but – to ensure an independence process – did not have editorial control over the questions asked, Wheeler’s analysis or conclusions, or the writing of the report.
The report highlights that three organizations were the primary or sole plaintiff in 77 out of 90 (86%) of actions in California. It also notes that agencies have paid nearly $12 million in opponents’ attorneys’ fees over the last decade or so, plus their own legal defense fees which can be equivalent to or considerably higher.
The report includes the acknowledgement that in many cases citizen suits may not be an efficient or productive method of improving water quality; for example, where an agency is already doing everything feasible to address the problem, citizen enforcement would be unlikely to provide significant net water quality benefit. There is also an acknowledgment that there was no way to directly quantify either the water quality impacts of citizen enforcement or the full costs of carrying out and responding to citizen enforcement efforts.
While the report contains an interesting and unique look at the problem of Clean Water Act citizen suits, it represents a quantitative approach to what remains a complex and qualitative problem. Nonetheless, it could provide a basis for future discussion and dialogue on the issue.
The Southwest Department of Energy’s (DOE) Combined Heat & Power Technical Assistance Partnership (CHP TAP) hosted a webinar on April 21 focusing on the applications of CHP at wastewater treatment plants and the resources provided by the seven regional CHP TAPs. The regional CHP TAPs provide free technical assistance and feasibility screenings for facilities considering CHP systems.
CHP at wastewater utilities is quickly growing area of interest. CHP can provide many benefits including energy resiliency, lower operating costs, emissions reductions, and more. The webinar covered several considerations and appropriate technologies for different sites and conditions. Multiple NACWA members were profiled on the webinar including East Bay Municipal Utility District; the City of Gresham, Oregon; the Encina Wastewater Authority in California; the LA County Sanitation District; and the Albuquerque Bernalillo County Water Utility Authority. A recording of the presentation can be found on the Southwest CHP TAP’s website.
NACWA staff travelled to Texas this week and brought the national clean water perspective to the Texas Water Conference, joining over 2,000 water professionals from around the state to discuss key critical issues. The Association provided a ‘Federal Policy Update’, and also participated in the WEAT Government Affairs meeting to discuss federal legislative and regulatory issues. Additionally, Association staff had an opportunity to meet with some of NACWA’s Texas utility members. Texas Water is jointly sponsored by the Water Environment Association of Texas (WEAT) and the Texas Section of the American Water Works Association (TAWWA), and is the largest regional water conference in the United States.
With the crisis in Flint and the drought in the West, Congress has been laser focused on the nation's pressing water infrastructure needs. This week in The Water Voice, former Congressman Jim Moran acknowledges – from personal experience – just how difficult it can be to get Congress to focus and really understand what is at stake with our water resources. Read his simple yet invaluable advice in this week's blog. It's sure to pay great dividends.
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