ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
NACWA Intervenes in Key Nutrient Litigation
On October 13th, a federal district court in Montana granted NACWA’s Motion to Intervene in litigation challenging EPA’s approval of the state’s general nutrient variance . Montana is the first state in the nation to develop scientifically based criteria for nitrogen and phosphorus with an achievable implementation strategy via a general variance, and NACWA took action to ensure EPA’s approval of the variance is upheld.
In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both EPA and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers would be unable to meet permit limits based on the very low criteria. Thus, at the same time MTDEQ submitted the criteria to EPA for approval, the State also requested approval of a general variance from the criteria for qualifying dischargers. EPA approved both the criteria and the variance in February 2015. In May 2016, however, an environmental activist group filed litigation against EPA challenging the approval of the variance. The Upper Missouri Waterkeeper is arguing that EPA’s approval should be overturned as arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act. Without the variance, all NDPES dischargers, regardless of economic impact or technical feasibility, would be required to comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen.
If the federal district court strikes down EPA’s approval of the variance, the precedent will have immediate impacts in Montana on entities such as NACWA Member Agency, the City of Bozeman, and could severely limit or eliminate the availability of variances nationwide. A negative decision would have a chilling effect on other states that are contemplating similar approaches for addressing nutrients. It would also have impacts beyond nutrients, including in states that have already adopted extremely low water quality standards for toxics but are using multi-discharger or statewide variances to address technical and affordability-based challenges.
NACWA’s intervention in the case secures its position as a party to the litigation to ensure that the variance approval is defended. MTDEQ , the Montana League of Cities and Towns , and several industry groups have also intervened in the litigation. For more details on the case, see NACWA’s Litigation Tracking.
NACWA met with the White House Office of Management & Budget (OMB) on October 13 to discuss two critical rules under final review – EPA’s pretreatment standards requiring amalgam separators in dental offices and the Agency’s Phase II municipal separate storm sewer system (MS4) remand rule. The dental amalgam rule was proposed in October 2014. NACWA submitted comments on the proposal in February 2015. The Association has had many follow-up conversations with EPA and reiterated its main concerns to OMB, which received the final rule from EPA on September 9. Although NACWA has not seen the final rule and how EPA may have addressed the comments filed on the proposal, the Association still maintains that the rule should be withdrawn. EPA has failed to demonstrate that the costs of the rule and the impacts on clean water utilities are justified by its environmental benefits. EPA hopes to publish the final rule in December.
In addition to the dental amalgam rule, NACWA also discussed its position on EPA’s Phase II stormwater rule. EPA proposed the stormwater rule in December 2015 to respond to a federal court ruling on procedural deficiencies with the current Phase II MS4 program. NACWA submitted comments (as well as comments on behalf of the National Stormwater Advocacy Network) in March 2016. NACWA reiterated the Association’s position that the new rule should be narrowly tailored to address procedural issues identified by the court with the Phase II permitting process and not make any substantive changes to the stormwater program. In particular, NACWA stressed that the rule should not further define the “maximum extent practicable” (MEP) standard for control of MS4 discharges that currently exists under federal law. While NACWA believes – based on conversations with EPA – that the final rule will only be procedural in nature, the Association also wanted to explain its position directly to OMB. EPA is expected to publish the final rule by mid-November.
NACWA signed an October 14 coalition letter requesting that the White House clarify that rebates issued to property owners under municipal programs to encourage use of water conservation measures or green infrastructure are not taxable income. The letter was spearheaded by the WaterNow Alliance and the National League of Cities, and also included a broad array of municipal signatories.
NACWA, along with a group of water organizations, has been working with the Administration, Congress, and the Department of Treasury since 2014 on this issue. Although the Internal Revenue Service (IRS) has not made a definitive ruling on the tax status of these rebate programs, there is growing concern among utilities that homeowners may be hesitant to participate if they could face potential tax liability. NACWA will continue to work with other interested parties to ensure that these important water programs do not face tax penalties.
Utilization of green infrastructure has gained momentum in cities across the country, but local communities and regional coalitions alike face a litany of challenges when undertaking green infrastructure projects, from coordination issues to measuring success. The Georgetown Climate Center’s Adaptation Clearinghouse has developed a Green Infrastructure Toolkit to help “identify and deploy green infrastructure approaches.”
The Toolkit provides a step-by-step process for urban planners to not only identify and construct a pilot program, but also utilize innovative financing options. It incorporates expertise from a network of experts and representatives from cities across the country to provide best management practices for a wide range of green infrastructure options. In the Toolkit, NACWA Member Agency and Utility of the Future Today recipient, Milwaukee Metropolitan Sewerage District, provides an outline of the District’s use of green infrastructure to capture “the equivalent of 740 million gallons of stormwater storage” by 2035.
EPA will be hosting a free, two-day meeting for New England stormwater utilities. The event, held November 15 and 16 at the University of New Hampshire, will highlight tools, financing options, and local examples to address stormwater compliance costs and help municipalities become more financially and environmentally resilient. More information is available on EPA’s website.
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