» Clean Water Current Archive

October 9, 2009

NACWA to Issue Strong Response to EPA Letter Affirming Status Quo with Blending

NACWA received a reply letter  this week from EPA Assistant Administrator for Water Peter Silva regarding the Association’s May 1  and August 13  letters about blending of peak wet weather flows.  Silva’s letter states that the proposed policy “remains a viable path forward for utilities to meet their obligations under the bypass rule” and argues that EPA is currently implementing the existing bypass regulation, promulgated in 1979.  “The bypass regulation provides that the Director of the NPDES [National Pollutant Discharge Elimination System] program may take enforcement action against a permittee for a bypass,” the letter explains, “unless the permittee demonstrates that certain criteria are met, including a showing that there were no feasible alternatives to the bypass.”  Silva states that the July 2009 draft “Guidance on Preparing a Utility Analysis” provides guidance on this existing regulation.

In its May and August letters, NACWA outlined the problems currently occurring as EPA regions utilize the 2005 draft blending policy, which was never issued in final form after getting caught up in the White House Office of Management and Budget review process.  In 2005, NACWA entered into discussions with NRDC on the blending issue, which resulted in an agreement upon which a final blending policy would be based. The policy was to have been fully vetted by the public, with a full opportunity to discuss the issues surrounding blending, including addressing parallel treatment systems, monitoring and reporting requirements, and additional guidance on how to conduct a no feasible alternative analysis.  Without these critical steps in what should be a public process, implementation through a reinterpretation of the bypass regulation is simply not acceptable and is not the outcome NACWA, NRDC, or EPA previously envisioned.

NACWA will write a strongly worded letter to EPA reiterating that the agency’s actions constitute an unacceptably broad reinterpretation of the bypass rule.  EPA’s stance on this issue is counter to its decades-long acceptance of blending as a viable method to manage peak wet weather flows.  In the absence of a final policy, agency action to overrule a permit that allows for blending would be subject to legal challenge.   NACWA has consistently recommended that EPA formulate a comprehensive sanitary sewer overflow (SSO) policy that would clarify and resolve these issues.

NACWA will continue to push EPA to resolve the blending issue through a comprehensive sanitary sewer overflow (SSO) policy.  The matter is expected to be a major topic of discussion with Silva and Jim Hanlon, director of EPA’s Office of Wastewater Management, at next Tuesday’s Hot Topics Breakfast at WEFTEC.09.  NACWA will keep members informed of any new developments as they occur.

NACWA Leads Delegation to Meet with Blumenauer on Trust Fund Bill Strategy

NACWA led a delegation of organizations to meet with Rep. Earl Blumenauer (D-Ore.), the chief sponsor of the Water Protection and Reinvestment Act (H.R. 3202), to discuss overall legislative strategy for the bill and map out a path forward for identifying additional co-sponsors for the legislation and getting the bill reported out of key committees.  The delegation agreed to focus its efforts on encouraging Rep. James Oberstar (D-Minn.), chair of the House Transportation and Infrastructure (T&I) Committee, to support the bill and commit to action on it.  T&I is a key committee with jurisdiction over the bill and deals with matters relating to wastewater infrastructure.  Blumenauer also urged the delegation to reach out and identify as many Republican supporters as possible to ensure that the effort has bipartisan support.  Thus far, 18 House members have signed on as co-sponsors to the bill.  Blumenauer is also following up with representatives with whom NACWA has met to solidify their support.  The organizations present at the meeting included the American Public Works Association, the Associated General Contractors of America, American Society of Civil Engineers, and the International Union of Operating Engineers.

NACWA Participates in First BEACH Act Stakeholder Meeting

NACWA participated this week in EPA’s first stakeholder meeting to begin developing new or revised recreational water quality criteria under the Beaches Environmental Assessment and Coastal Health Act (BEACH Act).  The meeting was the first in a series of workshops EPA will hold over the next three years as part of a settlement agreement in Natural Resources Defense Council v. EPA, which settled a claim over EPA’s failure to carry out its obligations under the BEACH Act.  At the two-day meeting, EPA updated participants on research projects, including epidemiologic studies that must be completed in order to develop new or revised recreational water quality criteria.  EPA also shared its current thinking on the development of the criteria, including the use of a data-centric process and the ongoing research to shape the criteria.  EPA further discussed the possibility of setting criteria to be protective of children or other sensitive sub-populations, but indicated that it has not yet made a decision.  The stakeholders held a robust technical discussion regarding rapid test methods.

NACWA intervened in the case to protect its members’ interests and had a critical role in crafting the agreement to ensure clean water agencies had ample opportunity to provide input throughout the recreational water quality criteria development process.  For more information on the case, including a copy of the settlement, please visit NACWA’s Litigation Tracking page.  NACWA will continue to be an active participant in development of the new criteria and will keep the membership updated on future developments.

NACWA Recommends Wastewater Facility Exclusion from Executive Order

NACWA sent a letter  this week to the White House Council on Environmental Quality (CEQ) recommending that wastewater treatment facilities be specifically excluded from an executive order  being drafted on floodplain management.  The goals of the draft executive order include reducing the loss of life and property from floods, protecting and restoring the natural resources and functions of floodplains, and implementing cost-effective and environmentally sound floodplain management.  As currently drafted, the order would accomplish these goals by limiting federal grants and permits for facilities located in 100- and 500-year floodplains and evaluating  “practicable alternatives” that would be required before grants and permits could be issued.  While NACWA agrees with the goals of the draft order, the Association is concerned about its implications for wastewater utilities, which are usually located in low-lying areas and floodplains to reduce a utility’s need to pump wastewater, saving significant cost and energy, and reducing carbon emissions.  “Therefore, the executive order should specifically exempt wastewater utilities in order to prevent utilities from performing unnecessary evaluations of locations outside floodplains before receiving federal funding or permits,” NACWA’s letter stated.

The CEQ has informed NACWA that no work will be done on this executive order until the council completes its revisions to the Economic and Environmental Principles and Guidelines for Water and Land Related Resources Implementation Studies.  NACWA will continue to communicate with the CEQ about this draft order and will notify members of new developments as they occur.

NACWA Asks for 15 Minutes of Your Time – Important Member Survey Underway

NACWA is asking for only 15 minutes of your time to make a significant contribution to the strategic direction of our organization.  The Association will celebrate its 40th anniversary in 2010 and will mark the occasion by revisiting and updating its Strategic Plan.  Primary agency and organization representatives — from all categories of membership — are urged to complete the brief web-based NACWA Member Survey.  Additional information and the link to the survey was forwarded to primary member contacts today.  All responses to this survey will be kept strictly confidential and will be reported in the aggregate.  Responses must be received no later than Monday, Oct. 19.  NACWA’s work on its Strategic Plan will take place in early November, and will be conducted by both Board Members and committee leadership.  Members’ response to this survey will serve to significantly inform their efforts and allow NACWA to best serve its members in the coming months and years.  Thank you, in advance, for your time and input.  Should you have any questions please don’t hesitate to contact NACWA’s Deputy Executive Director, Paula Dannenfeldt, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202-833-4654.

NACWA Outreach Starts Early for Next Year’s Clean Water Policy Forum

With the ramped up level of attention that clean water issues are receiving at the federal level, NACWA wants to ensure the broadest possible participation for its 2010 National Clean Water Policy Forum, April 18-21, 2010 at the L’Enfant Plaza Hotel in Washington, DC, so save the date!   In line with this effort, NACWA will be hosting a meeting in December of key state organizations that represent public clean water agencies to discuss the importance of further coordinating our efforts and resources to maximize the efficacy of our shared advocacy objectives in the legislative, regulatory and legal arenas.  NACWA will work to identify opportunities through which the Policy Forum can be a more valuable venue for them and the public agencies they represent.  This effort builds on NACWA’s Clean Water Exchange publication, created to share information and engage the state organizations and their members on priority advocacy initiatives.  If you have any questions regarding this effort, please contact NACWA’s This e-mail address is being protected from spambots. You need JavaScript enabled to view it  at 202/833-4651.

Hotel Registration Deadline for Law Seminar Quickly Approaching

The Oct. 19 hotel registration deadline for NACWA’s 2009 Developments in Clean Water Law Seminar is just around the corner, so hurry and make your plans today to attend!  The Nov. 11-13 Seminar will be held at the Marriott Metro Center in Washington, DC,  and promises to deliver an engaging program featuring top legal practitioners discussing the hottest topics in clean water law.  Among the speakers confirmed for the agenda are Peter Silva, EPA assistant administrator for water, and Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance.  In addition, a number of informative panel discussions, including one examining the importance of public perception and public relations in protecting a clean water agency’s legal rights, will be featured.  The panel will discuss how a utility can maintain good public relations with its community and ratepayers and can better communicate sensitive environmental or public health information to the public, not only during emergency situations but also during periods of public skepticism over proposed utility actions.

The Seminar agenda also includes a dynamic roundtable discussion that will examine the impacts of the 2008 elections on clean water law.  Roundtable members will present both a national and local perspective on how the Obama administration and the 111th Congress have addressed clean water issues, including what developments can be expected in the coming year.  Other panels at the Seminar will cover a variety of issues including what to do when the legal rules change, a review of the most important Clean Water Act legal cases of the past year, and a discussion of current enforcement trends involving clean water utilities.  As in past years, Continuing Legal Education (CLE) credits will be available and NACWA has already received CLE approvals from a number of states.  More information on the Seminar, including registration information and a list of CLE approvals by state, can be found on NACWA’s Conferences & Professional Development webpage.

NACWA’s Funding Network to Host Call Oct. 20 on State Funding Programs

An Oct. 20 conference call, hosted by NACWA’s Clean Water Funding Network, will feature a discussion of programs at the state level that seek to raise significant revenue for water infrastructure.  The guest speaker will be Richard Fox, executive director of the Pennsylvania Senate Environmental Resources and Energy Committee, who will talk about how voters in that state approved a $400-million water bond referendum that appeared on last November’s ballot.  The free call will explore how this state initiative got started, who championed it, who opposed it, and how it is being administered.  The Clean Water Funding Network was launched by NACWA this spring as a way to galvanize broad, grassroots support for funding legislation. Please notify This e-mail address is being protected from spambots. You need JavaScript enabled to view it  or at (202) 833-3280 if you plan to join the call.