Clean Water Current- September 26
EPA Renews Call to Action on Nutrients, Sets Goal for Monitoring at All Major POTWs
EPA renewed its call to action on nutrients in a September 22 memorandum outlining new and ongoing efforts to make incremental progress on nutrients. The document “highlights the continued need for action to address this challenge” and calls upon states and stakeholders to “renew our commitment and accelerate our efforts” to address nutrient pollution. Of particular note, EPA states it will continue to strongly encourage and support the development of numeric nutrient criteria (NNC) and numeric translators for narrative standards, an issue on which NACWA has raised significant concerns.
The memo states that EPA will “work with states to move towards the goal of including monitoring requirements for both total nitrogen and total phosphorus in NPDES permits for major municipal wastewater facilities.” EPA is working with state water regulators to encourage movement in this direction. With regard to nonpoint source pollution, in particular agricultural discharges of nutrients, EPA “urges an acceleration of efforts in this area” and points to recent successes in collaborative partnerships between point and nonpoint sources to address nutrient impairment. The document specifically highlights the Middle Cedar Partnership Project, which is being led by NACWA member the City of Cedar Rapids, Iowa through the Regional Conservation Partnership Program (RCPP).
The September 22 memo is just the latest action from this EPA on the nutrient front. NACWA has also been actively engaged in the Agency’s plans to conduct a study of the nutrient performance of secondary treatment, which is now cited in the new memo as a way to “support states and their communities” as they look for cost-effective ways to reduce nutrient loads.
With less than a week to go before the end of the fiscal year, Congress is under pressure to pass a continuing resolution (CR) to keep the government funded. Water – specifically, funding for Flint, Mich. and to address recent flooding in several states – is becoming a crucial sticking point in negotiations. Meanwhile, the House is still feeling pressure to pass is Water Resources Development Act (WRDA) and may consider the legislation this week.
The Senate continues to wrestle with a CR that may gain enough support from both parties to pass. A key sticking point is whether the package will contain funding to address both the drinking water issues in Flint and recent flooding in Louisiana and West Virginia. Senate Republicans have put forth a proposal that would address the flooding issues, but not Flint, while Senate Democrats have made clear that they view flood and Flint relief as part of a “package deal.” Both parties, however, are expected to reach a compromise on a CR before Sept. 30 that will fund the federal government through early December.
Also notable last week was the introduction by House Democrats of a series of bills that would provide comprehensive updates to the Safe Drinking Water Act (SDWA). While these bill are highly unlikely to be considered in this Congress, it does indicate the interest of some in Congress to tee-up SDWA reforms for the next Congress and Administration.
EPA sent a final rule changing the Phase II federal stormwater regulations for small municipal separate storm sewer systems (MS4s), also known as the Remand Rule, to the White House Office of Management & Budget (OMB) for review on September 17. In response to a court order, EPA is making changes to the Phase II program to increase public engagement during the stormwater general permitting process. The deadline set by the court for a final rule is November 17, 2016. NACWA will continue to engage with both OMB and EPA over the next two months to ensure the Association’s March comments on the rule proposal are considered in full.
EPA proposed the Remand Rule in December 2015 modifying the national small MS4 program to comply with a 2003 federal court ruling and a subsequent 2014 legal petition identifying flaws with the current public participation process for Phase II permits. According to EPA, the Remand Rule is intended to be a narrow response to the Court’s requirements to address procedural and participatory deficiencies in the current regulations. NACWA has worked closely iwith EPA as it drafted the rule and has emphasized that any changes to the small MS4 program should be procedural in nature only, and without significant substantive consequences for MS4 permittees.
NACWA met with Andrew Sawyers, Director of EPA’s Office of Wastewater Management (OWM), and other key water office staff last week to discuss the Agency’s efforts to make progress on the urban stormwater front. EPA is close to announcing a new resource that will facilitate long-term planning for communities working to address stormwater challenges. The Agency will discuss its efforts further at WEFTEC this week, and NACWA will be working closely with OWM as it moves forward.
In a separate meeting, the Association met with David Hindin, Director of EPA’s Office of Compliance, to discuss the enforcement office’s Next Generation Compliance Initiative. Launched by Assistant Administrator Cynthia Giles, and spearheaded by Hindin, the Initiative seeks to increase compliance and public access to information through the use of advanced monitoring technology, electronic reporting, and other approaches. NACWA briefed Hindin on the activities of the Association’s Smart Utility Task Force and discussed the Agency’s growing interest in including next generation elements in clean water utility consent decrees.
NACWA submitted comments September 23 regarding EPA’s development of public notification standards for combined sewer overflow (CSO) discharges into the Great Lakes. In its comments, the Association requests that EPA establish flexibility in the requirements to allow utilities to determine the approach that works best for their infrastructure and their communities. NACWA also asked that the Agency not use the word “immediate” to describe the notification, since Congress did not require “immediate” notice in the Fiscal Year 2016 appropriations package that directed EPA to develop the public notification requirements.
NACWA also addressed how utilities should collect information about CSOs and when this information should be reported. The Association recommends that for protecting public health, advance notice that CSOs might occur is most important, either through appropriate signs at recreation areas or through announcements when rainfall is expected that would cause a CSO. Other information, such as the volume of the CSO, can be reported later, and utilities should be given enough time to fully analyze their data. Data obtained from models and real-time monitoring should be equally valid for the notification requirements.
EPA expects to release a proposal on the notification standards in December. NACWA will work closely with EPA as it develops the document and will provide additional comments on the proposal to ensure that the requirements are reasonable for utilities.
NACWA is currently developing a compendium of environmental justice (EJ) initiatives and community service programs that utilities are engaged in with their communities. The Association is seeking Member Agencies to serve as case studies for the compendium. The document will identify a series of best practices that utilities have used, and can use, in establishing EJ and community service programs. It will also help to advance the concept that affordability concerns should be considered by EPA and other regulators as part of EJ analyses and considerations.
On September 8, the City of Los Angeles and Kern County filed post-trial reply briefs in City of Los Angeles v. County of Kern. The bench trial in this California case was held in May 2016. The litigation involves a challenge by NACWA members, led by Member Agency, the City of Los Angeles – LA Sanitation, to Kern County’s voter initiative (Measure E) that inappropriately bans land application of biosolids in the county, one of the country’s largest agricultural counties.
The municipal plaintiffs in the case have successfully prevented the ban from going into effect since 2006 through a series of preliminary injunctions based on federal and state constitutional and statutory claims. Los Angeles, and its co-plaintiffs presented at trial, detailed evidence from experts and biosolids managers that over twenty years of biosolids recycling in Kern County has benefited the environment and biosolids generators, and poses negligible risks.
Briefing is now complete with a decision anticipated this fall. See NACWA’s Litigation Tracking web page for more details on the case. NACWA has played a significant role throughout the case, filing several amicus briefs at various stages. The California Association of Sanitation Agencies (CASA) is also a Co-Plaintiff challenging the Measure E ban.
A new report, just released by the organization Climate Central, outlines the significant challenges posed to clean water utilities around the nation by climate change, increased precipitation events, and a corresponding rise in the number of sewer overflows. Overflow: Climate Change, and Sewage notes that this is a particularly challenging issue for combined sewer overflow (CSO) systems, but acknowledges that even substantial upgrades to wastewater collection systems will not be able to completely eliminate overflows in the face of changing precipitation patters. The report serves as an important reminder of the challenges all clean water utilities confront in addressing overflow issues in the context of climate change.
NACWA hosted its final Hot Topics in Clean Water Law web seminar for the 2016 fiscal year on September 21. The webinar featured a panel of top clean water attorneys who provided brief presentations and then engaged in a roundtable discussion of emerging trends in Clean Water Act (CWA) enforcement.
Andrew Stewart, Counsel at Vinson & Elkins, presented Federal Enforcement Outlook for Municipalities, providing insights into EPA’s 2017-2019 Enforcement Initiatives and the Agency’s increasing focus on next generation compliance. In her presentation, Enforcing Consent Decrees Once the Ink Has Dried, Karen Hansen, Principal with Beveridge & Diamond, discussed EPA’s increasing annual demands for maximum stipulated penalties under consent decrees as a result of recent litigation surrounding the Agency’s Clean Water Act diligent prosecution obligations. Fred Andes, Partner at Barnes & Thornburg, presented NGO Activities on Municipal CWA Issues and shared recent experiences engaging with environmental groups in litigation and negotiations. How improper certification language in electronic Discharge Monitoring Reports and other agency reporting can result in enforcement against individuals was the focus of Paul Calamita, Chairman and Founder of AquaLaw. Calamita also encouraged vigilance in reviewing all submittals in his presentation How Far Out on the Compliance Limb Has Your Certification Statement Put You?
The webinar served as a prelude to the Association’s upcoming National Clean Water Law Seminar & Consent Decree Workshop. These important offerings will take place, back-to-back, from November 1 - 4 in Kansas City, Missouri. NACWA invites members interested in these legal issues to attend the Seminar and Workshop and to join the Legal Affairs Committee.
The recent passage by the Senate of its version of the 2016 Water Resources Development Act (WRDA) is a major step forward for NACWA and its members, but there is still more work to be done. This week in The Water Voice, NACWA’s Kristina Surfus notes that while the Senate’s action demonstrates that water is still a bipartisan issue, the legislation still must take a tricky path forward before final passage by the end of the year. Read on to learn more!
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